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EXHIBIT 4.3
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SPECTRASITE HOLDINGS, INC.
as Issuer
and
UNITED STATES TRUST COMPANY OF NEW YORK
as Trustee
INDENTURE
Dated as of April 20, 1999
11 1/4% Senior Discount Notes due 2009
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TABLE OF CONTENTS
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ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1. Definitions.........................................................1
SECTION 1.2. Other Definitions..................................................22
SECTION 1.3. Incorporation by Reference of Trust
Indenture Act.................................................22
SECTION 1.4. Rules of Construction..............................................23
SECTION 1.5. One Class of Notes.................................................23
ARTICLE II
THE NOTES
SECTION 2.1. Form and Dating....................................................24
SECTION 2.2. Execution and Authentication.......................................24
SECTION 2.3. Registrar and Paying Agent.........................................24
SECTION 2.4. Paying Agent to Hold Money in Trust................................25
SECTION 2.5. Noteholder Lists...................................................25
SECTION 2.6. [Intentionally Omitted]............................................26
SECTION 2.7. Replacement Notes..................................................26
SECTION 2.8. Outstanding Notes..................................................26
SECTION 2.9. Temporary Notes....................................................26
SECTION 2.10. Cancellation.......................................................27
SECTION 2.11. Defaulted Interest.................................................27
SECTION 2.12. CUSIP Numbers......................................................27
ARTICLE III
REDEMPTION
SECTION 3.1. Notices to Trustee.................................................28
SECTION 3.2. Selection of Notes to Be Redeemed..................................28
SECTION 3.3. Notice of Redemption...............................................28
SECTION 3.4. Effect of Notice of Redemption.....................................29
SECTION 3.5. Deposit of Redemption Price........................................29
SECTION 3.6. Notes Redeemed in Part.............................................30
ARTICLE IV
COVENANTS
SECTION 4.1. Payment of Notes...................................................30
SECTION 4.2. SEC Reports........................................................31
SECTION 4.3. Limitation on Indebtedness.........................................31
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SECTION 4.4. Limitation on Indebtedness and Preferred
Stock of Restricted Subsidiaries..............................33
SECTION 4.5. Limitation on Restricted Payments..................................35
SECTION 4.6. Limitation on Restrictions on Distributions from Restricted
Subsidiaries..................................................37
SECTION 4.7. Limitation on Sale of Assets and
Subsidiary Stock..............................................37
SECTION 4.8. Limitation on Transactions with Affiliates.........................41
SECTION 4.9. Change of Control..................................................42
SECTION 4.10. Limitation on Sale or Issuance of Capital
Stock of Restricted Subsidiaries..............................43
SECTION 4.11. Limitation on Liens................................................44
SECTION 4.12. Limitation on Sale/Leaseback Transactions..........................44
SECTION 4.13. Compliance with Laws...............................................44
SECTION 4.14. Compliance Certificate.............................................44
SECTION 4.15. Further Instruments and Acts.......................................45
SECTION 4.16. Maintenance of Office or Agency....................................45
SECTION 4.17. Corporate Existence................................................45
SECTION 4.18. Payment of Taxes and Other Claims..................................45
SECTION 4.19. Maintenance of Properties and Insurance............................46
ARTICLE V
SUCCESSOR ISSUER
SECTION 5.1. When the Issuer May Merge or Transfer
Assets........................................................46
ARTICLE VI
DEFAULTS AND REMEDIES
SECTION 6.1. Events of Default..................................................47
SECTION 6.2. Acceleration.......................................................50
SECTION 6.3. Other Remedies.....................................................50
SECTION 6.4. Waiver of Past Defaults............................................50
SECTION 6.5. Control by Majority................................................51
SECTION 6.6. Limitation on Suits................................................51
SECTION 6.7. Rights of Holders to Receive Payment...............................51
SECTION 6.8. Collection Suit by Trustee.........................................52
SECTION 6.9. Trustee May File Proofs of Claim...................................52
SECTION 6.10. Priorities.........................................................52
SECTION 6.11. Undertaking for Costs..............................................53
SECTION 6.12. Waiver of Stay or Extension Laws...................................53
ARTICLE VII
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TRUSTEE
SECTION 7.1. Duties of Trustee..................................................53
SECTION 7.2. Rights of Trustee..................................................54
SECTION 7.3. Individual Rights of Trustee.......................................55
SECTION 7.4. Trustee's Disclaimer...............................................55
SECTION 7.5. Notice of Defaults.................................................56
SECTION 7.6. Reports by Trustee to Holders......................................56
SECTION 7.7. Compensation and Indemnity.........................................56
SECTION 7.8. Replacement of Trustee.............................................57
SECTION 7.9. Successor Trustee by Merger........................................58
SECTION 7.10. Eligibility; Disqualification......................................58
SECTION 7.11. Preferential Collection of Claims Against
Issuer........................................................59
ARTICLE VIII
DISCHARGE OF INDENTURE; DEFEASANCE
SECTION 8.1. Discharge of Liability on Notes; Defeasance........................59
SECTION 8.2. Conditions to Defeasance...........................................60
SECTION 8.3. Application of Trust Money.........................................61
SECTION 8.4. Repayment to Issuer................................................62
SECTION 8.5. Indemnity for Government Obligations...............................62
SECTION 8.6. Reinstatement......................................................62
ARTICLE IX
AMENDMENTS
SECTION 9.1. Without Consent of Holders.........................................63
SECTION 9.2. With Consent of Holders............................................63
SECTION 9.3. Compliance with Trust Indenture Act................................64
SECTION 9.4. Revocation and Effect of Consents and
Waivers.......................................................64
SECTION 9.5. Notation on or Exchange of Notes...................................65
SECTION 9.6. Trustee to Sign Amendments.........................................65
SECTION 9.7. Payment for Consent................................................65
ARTICLE X
MISCELLANEOUS
SECTION 10.1. Trust Indenture Act Controls.......................................66
SECTION 10.2. Notices............................................................66
SECTION 10.3. Communication by Holders with Other Holders........................67
SECTION 10.4. Certificate and Opinion as to Conditions
Precedent.....................................................67
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SECTION 10.5. Statements Required in Certificate or
Opinion.......................................................67
SECTION 10.6. When Notes Disregarded.............................................67
SECTION 10.7. Rules by Trustee, Paying Agent and
Registrar.....................................................68
SECTION 10.8. Legal Holidays.....................................................68
SECTION 10.9. Governing Law......................................................68
SECTION 10.10. No Recourse Against Others.........................................68
SECTION 10.11. Successors.........................................................68
SECTION 10.12. Multiple Originals.................................................68
SECTION 10.13. Variable Provisions................................................69
SECTION 10.14. Qualification of Indenture.........................................69
SECTION 10.15. Table of Contents; Headings........................................69
SECTION 10.16. Severability.......................................................69
Rule 144A/Regulation S Appendix
Exhibit 1 to Appendix - Form of Initial Note
Exhibit A - Form of Exchange Note and Private Exchange Note
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INDENTURE, dated as of April 20, 1999, between SPECTRASITE HOLDINGS,
INC., a Delaware corporation (as further defined below, the "Issuer"), and
UNITED STATES TRUST COMPANY OF NEW YORK, a bank and trust company organized
under New York banking law, as trustee (the "Trustee").
Each party agrees as follows for the benefit of the other party and
for the equal and ratable benefit of the Holders of the Issuer's $586,800,000
aggregate principal amount at maturity 11 1/4% Senior Discount Notes due 2009
(the "Initial Notes") and, if and when issued in exchange for Initial Notes as
provided in the Registration Rights Agreement (as defined in the Appendix
hereto), the Issuer's Series B 11 1/4% Senior Discount Notes due 2009 (the
"Exchange Notes") and, if and when issued pursuant to a private exchange for
Initial Notes, the Issuer's Series C 11 1/4% Senior Discount Notes Due 2009 (the
"Private Exchange Notes," together with the Initial Notes and the Exchange
Notes, the "Notes"):
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1. Definitions.
"Accreted Value" means an amount per $1,000 principal amount at
maturity of the Notes that is equal to (a) as of any date prior to April 15,
2004, the sum of (x) the initial offering price of each Note and (y) the portion
of the excess of the principal amount at maturity of each Note over such initial
offering price which shall have been amortized through such date, such amount to
be so amortized on a daily basis and compounded semi-annually on each April 15
and October 15 at the rate of 11 1/4% per annum from the Issue Date through the
date of determination computed on the basis of a 360-day year of twelve 30-day
months, and (b) as of any date after April 15, 2004, $1,000.
"Adjusted EBITDA" as of any date of determination means the sum of
(i) the EBITDA of the Issuer for the four most recent full fiscal quarters
ending prior to such date, less the Issuer's Tower EBITDA for such four-quarter
period, plus (ii) the product of four times the Issuer's Tower EBITDA for the
most recent quarterly period, which Tower EBITDA for the most recent quarterly
period shall be determined on a pro forma basis after giving effect to (A) all
acquisitions or dispositions of assets made by the Issuer and its Subsidiaries
from the beginning of such quarter through and including such date of
determination (including any related financing transactions) as if such
acquisitions and dispositions had occurred at the beginning of such quarter, (B)
any new lease or Site Management Contract entered into by the Issuer or any
Restricted Subsidiary in the ordinary course of business with respect to Tower
Assets from the beginning of such quarter through and including such date
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of determination as if such new lease or Site Management Contract had been
signed at the beginning of such quarter and the rent required by the terms of
such lease or Site Management Contract for such quarter had been received by the
Issuer or a Restricted Subsidiary during such quarter, (C) the loss from the
beginning of such quarter through and including such date of determination of
any lease or Site Management Contract of the Issuer or a Restricted Subsidiary
with respect to any Tower Assets that was in effect on the first day of such
quarter as if such lease or Site Management Contract had not been in effect
during such quarter and no rent under such lease had been received during such
quarter and (D) any rent increases received by the Issuer or any Restricted
Subsidiary from the beginning of such quarter through and including such date of
determination related to leases or Site Management Contracts on Tower Assets as
if such increased rental rate had been in effect at the beginning of such
quarter and such increased amount of rent had been received by the Issuer or a
Restricted Subsidiary during such quarter. For purposes of making the
computation referred to above, (1) acquisitions that have been made by the
Issuer or any of its Restricted Subsidiaries, including through mergers or
consolidations and including any related financing transactions, during the
reference period or subsequent to such reference period and on or prior to the
date of determination shall be deemed to have occurred on the first day of the
reference period and EBITDA for such reference period shall be calculated
without giving effect to clause (ii) of the proviso set forth in the definition
of Consolidated Net Income, and (2) the EBITDA attributable to discontinued
operations, as determined in accordance with GAAP, and operations or businesses
disposed of prior to the date of determination shall be excluded.
"Affiliate" of any specified Person means any other Person, directly
or indirectly, controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any Person means the power to direct the
management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the foregoing. For
purposes of the covenants in this Indenture, "Affiliate" shall also mean any
beneficial owner of Capital Stock representing 10% or more of the total voting
power of the Voting Stock (on a fully diluted basis) of the Issuer or of rights
or warrants to purchase such Capital Stock (whether or not currently
exercisable) and any Person who would be an Affiliate of any such beneficial
owner pursuant to the first sentence hereof.
"Asset Disposition" means any sale, lease, transfer or other
disposition (or series of related sales, leases, transfers or dispositions) by
the Issuer or any Restricted Subsidiary, including any disposition by means of a
merger, consolidation or similar transaction (each referred to for the purposes
of this definition as a "disposition"), of (i) any shares of Capital Stock of a
Restricted Subsidiary (other than directors' qualifying shares or
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shares required by applicable law to be held by a Person other than the Issuer
or a Restricted Subsidiary), (ii) all or substantially all the assets of any
division or line of business of the Issuer or any Restricted Subsidiary or (iii)
any other assets of the Issuer or any Restricted Subsidiary outside of the
ordinary course of business of the Issuer or such Restricted Subsidiary (other
than, in the case of (i), (ii) and (iii) above, (u) a disposition by a
Restricted Subsidiary to the Issuer or by the Issuer or a Restricted Subsidiary
to a Wholly Owned Subsidiary, (v) for purposes of Section 4.7 only, a
disposition that constitutes a Restricted Payment permitted by Section 4.5, (w)
a disposition of assets with a fair market value of less than $1.0 million (x)
any transaction not prohibited by Section 4.5 or that constitutes a Permitted
Investment, (y) grants of leases or licenses in the ordinary course of business,
and (z) disposals of cash equivalents).
"Attributable Indebtedness" in respect of a Sale/Leaseback
Transaction means, as at the time of determination, the present value
(discounted at the interest rate borne by the Notes, compounded annually) of the
total obligations of the lessee for rental payments during the remaining term of
the lease included in such Sale/Leaseback Transaction (including any period for
which such lease has been extended).
"Average Life" means, as of the date of determination, with respect
to any Indebtedness or Preferred Stock, the quotient obtained by dividing (i)
the sum of the product of the numbers of years from the date of determination to
the dates of each successive scheduled principal payment of such Indebtedness or
redemption or similar payment with respect to such Preferred Stock multiplied by
the amount of such payment by (ii) the sum of all such payments.
"Board of Directors" means the Board of Directors of the Issuer or
any committee thereof duly authorized to act on behalf of such Board.
"Business Day" means a day other than a Saturday, Sunday or other day
on which banking institutions in New York State are authorized or required by
law to close.
"Capitalized Lease Obligation" means an obligation that is required
to be classified and accounted for as a capitalized lease for financial
reporting purposes in accordance with GAAP, and the amount of Indebtedness
represented by such obligation shall be the capitalized amount of such
obligation determined in accordance with GAAP; and the Stated Maturity thereof
shall be the date of the last payment of rent or any other amount due under such
lease prior to the first date upon which such lease may be terminated by the
lessee without payment of a penalty.
"Capital Stock" of any Person means any and all shares, interests,
rights to purchase, warrants, options, participation or other equivalents of or
interests in (however
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designated) equity of such Person, including any Preferred Stock, but excluding
any debt securities convertible into such equity.
"Change of Control" means the occurrence of any of the following
events:
prior to the first public offering of common stock of the Issuer, the
Permitted Holders cease to be the "beneficial owner" (as defined in Rules
13d-3 and 13d-5 under the Exchange Act), directly or indirectly, of a
majority in the aggregate of the total voting power of the Voting Stock of
the Issuer, whether as a result of issuance of securities of the Issuer,
any merger, consolidation, liquidation or dissolution of the Issuer, any
direct or indirect transfer of securities by the Issuer or otherwise (for
purposes of this clause (i) and clause (ii) below, the Permitted Holders
shall be deemed to beneficially own any Voting Stock of an entity (the
"specified entity") held by any other entity (the "parent entity") so long
as the Permitted Holders beneficially own (as so defined), directly or
indirectly, in the aggregate a majority of the voting power of the Voting
Stock of the parent entity);
subsequent to the first public offering of common stock of the Issuer, any
"person" (as such term is used in Sections 13(d) and 14(d) of the Exchange
Act), other than one or more Permitted Holders, is or becomes the
beneficial owner (as defined in clause (i) above, except that for purposes
of this clause (ii) such person shall be deemed to have "beneficial
ownership" of all shares that any such person has the right to acquire,
whether such right is exercisable immediately or only after the passage of
time), directly or indirectly, of more than 35% of the total voting power
of the Voting Stock of the Issuer; provided, however, that the Permitted
Holders "beneficially own" (as defined in clause (i) above) directly or
indirectly, in the aggregate a lesser percentage of the total voting power
of the Voting Stock of the Issuer than such other Person and do not have
the right or ability by voting power, contract or otherwise to elect or
designate for election a majority of the Board of Directors of the Issuer
(for the purposes of this clause (ii), such other person shall be deemed
to beneficially own any Voting Stock of a specified entity held by a
parent entity, if such other person is the beneficial owner (as defined in
this clause (ii)), directly or indirectly, of more than 35% of the voting
power of the Voting Stock of such parent entity and the Permitted Holders
"beneficially own" (as defined in clause (i) above), directly or
indirectly, in the aggregate a lesser percentage of the total voting power
of the Voting Stock of such parent entity than such other Person, and do
not have the right or ability by voting power, contract or otherwise to
elect or designate for election a majority of the board of directors of
such parent entity);
during any period of two consecutive years (or, in the case this event
occurs within the first two years after the Issue Date, such shorter
period as shall have begun on the
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Issue Date), individuals who at the beginning of such period constituted
the Board of Directors of the Issuer (together with any new directors
whose election by such Board of Directors or whose nomination for election
by the shareholders of the Issuer was approved by a vote of a majority of
the directors of the Issuer then still in office who were either directors
at the beginning of such period or whose election or nomination for
election was previously so approved) cease for any reason to constitute a
majority of the Board of Directors of the Issuer then in office;
the merger or consolidation of the Issuer with or into another Person or
the merger of another Person with or into the Issuer, or the sale of all
or substantially all the assets of the Issuer to another Person (other
than a Permitted Holder or a Person that is controlled by the Permitted
Holders), and, in the case of any such merger or consolidation, the
securities of the Issuer that are outstanding immediately prior to such
transaction and which represent 100% of the aggregate voting power of the
Voting Stock of the Issuer are changed into or exchanged for cash,
securities or property, unless pursuant to such transaction such
securities are changed into or exchanged for, in addition to any other
consideration, securities of the surviving corporation that represent
immediately after such transaction, at least a majority of the aggregate
voting power of the Voting Stock of the surviving corporation.
"Code" means the Internal Revenue Code of 1986, as amended.
"Completed Tower" means a wireless transmission tower with, as of any
date of determination, (i) at least one anchor tenant that has executed a
definitive lease with the Issuer or any of its Restricted Subsidiaries and (ii)
capacity for at least three tenants.
"Consolidated Indebtedness" as of any date of determination means
(without duplication) (i) the total amount of Indebtedness of the Issuer and its
Restricted Subsidiaries, (ii) the total amount of Indebtedness of any other
Person, to the extent that such Indebtedness has been Guaranteed by the Issuer
or one or more of its Restricted Subsidiaries, (iii) the aggregate liquidation
value of all Disqualified Stock of the Issuer and all preferred stock of
Restricted Subsidiaries of the Issuer not owned by the Issuer or a Restricted
Subsidiary, in each case, determined on a consolidated basis in accordance with
GAAP.
"Consolidated Interest Expense" means, for any period, the total
interest expense of the Issuer and its consolidated Restricted Subsidiaries,
plus, to the extent not included in such total interest expense, and to the
extent incurred by the Issuer or its Restricted Subsidiaries, without
duplication, (i) interest expense attributable to capital leases and to leases
constituting part of a Sale/Leaseback Transaction, (ii) amortization of debt
discount and debt issuance cost, (iii) capitalized interest, (iv) non-cash
interest expense, (v) commissions, discounts and other fees and charges owed
with respect to letters of credit and
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bankers' acceptance financing, (vi) net costs associated with Hedging
Obligations (including amortization of fees), (vii) Preferred Stock dividends
paid in respect of all Preferred Stock of the Issuer and its Subsidiaries held
by Persons other than the Issuer or a Wholly Owned Subsidiary, (viii) interest
incurred in connection with Investments in discontinued operations, (ix)
interest accruing on any Indebtedness of any other Person to the extent such
Indebtedness is Guaranteed by (or secured by the assets of) the Issuer or any
Restricted Subsidiary and (x) the cash contributions to any employee stock
ownership plan or similar trust to the extent such contributions are used by
such plan or trust to pay interest or fees to any Person (other than the Issuer)
in connection with Indebtedness Incurred by such plan or trust.
"Consolidated Net Income" means, for any period, the net income
(loss) of the Issuer and its consolidated Subsidiaries; provided, however, that
there shall not be included in such Consolidated Net Income:
any net income (loss) of any Person (other than the Issuer) if such Person
is not a Restricted Subsidiary, except that (A) subject to the exclusion
contained in (iv) below, the Issuer's equity in the net income of any such
Person for such period shall be included in such Consolidated Net Income
up to the aggregate amount of cash actually distributed by such Person
during such period to the Issuer or a Restricted Subsidiary as a dividend
or other distribution (subject, in the case of a dividend or other
distribution paid to a Restricted Subsidiary, to the limitations contained
in clause (iii) below) and (B) solely for purposes of calculating the
Indebtedness to Adjusted EBITDA Ratio, the Issuer's equity in a net loss
of any such Person (other than an Unrestricted Subsidiary) for such period
shall be included in determining such Consolidated Net Income,
any net income (loss) of any Person acquired by the Issuer or a Subsidiary
in a pooling of interests transaction for any period prior to the date of
such acquisition,
any net income of any Restricted Subsidiary if such Restricted Subsidiary
is subject to restrictions (other than any restrictions permitted in
Section 4.6), directly or indirectly, on the payment of dividends or the
making of distributions by such Restricted Subsidiary, directly or
indirectly, to the Issuer, except that (A) subject to the exclusion
contained in clause (iv) below the Issuer's equity in the net income of
any such Restricted Subsidiary for such period shall be included in such
Consolidated Net Income up to the aggregate amount of cash actually
distributed by such Restricted Subsidiary during such period to the Issuer
or another Restricted Subsidiary as a dividend or other distribution
(subject, in the case of a dividend or other distribution paid to another
Restricted Subsidiary, to the limitation contained in this clause) and (B)
solely for purposes of calculating the Indebtedness to Adjusted EBITDA
Ratio, the Issuer's equity in a net loss of any such Restricted Subsidiary
for such period shall be
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included in determining such Consolidated Net Income,
any gain or loss realized upon the sale or other disposition of any assets
of the Issuer, its consolidated Subsidiaries or any other Person
(including pursuant to any Sale/Leaseback Transaction) which is not sold
or otherwise disposed of in the ordinary course of business and any gain
or loss realized upon the sale or other disposition of any Capital Stock
of any Person,
any net income or loss of any Unrestricted Subsidiary, unless distributed
to the Issuer or one of its Subsidiaries,
any extraordinary gain or loss, and
the cumulative effect of a change in accounting principles.
Notwithstanding the foregoing, for the purposes of Section 4.5 only, there shall
be excluded from Consolidated Net Income any dividends, repayments of loans or
advances or other transfers of assets from Unrestricted Subsidiaries to the
Issuer or a Restricted Subsidiary to the extent such dividends, repayments or
transfers increase the amount of Restricted Payments permitted under such
covenant pursuant to clause (a)(3)(D) thereof.
"Consolidated Tangible Assets" means, with respect to the Issuer, the
total consolidated tangible assets of the Issuer and its Restricted
Subsidiaries, as shown on the most recent internal consolidated balance sheet of
the Issuer and such Restricted Subsidiaries calculated on a consolidated basis
in accordance with GAAP.
"Credit Facility" means any debt or credit facility or commercial
paper facility providing for revolving credit loans, term loans, accounts
receivable financing (including through the sale of accounts receivable to such
lenders or to special purpose entities formed to borrow from such lenders
against such accounts receivable) or letters of credit, in each case, as
amended, restated, supplemented, extended, modified, renewed, refunded, replaced
or refinanced in whole or in part from time to time, including any such
amendment, restatement, supplement, extension, modification, renewal, refunding,
replacement or refinancing that increases the amount borrowable thereunder or
alters the maturity thereof.
"Currency Agreement" means in respect of a Person any foreign
exchange contract, currency swap agreement or other similar agreement designed
to protect such Person against fluctuations in currency values as to which such
Person is a party or a beneficiary.
"Default" means any event which is, or after notice or passage of
time or both would be, an Event of Default.
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"Disqualified Stock" means, with respect to any Person, any Capital
Stock which by its terms (or by the terms of any security into which it is
convertible or for which it is exchangeable) or upon the happening of any event
(i) matures or is mandatorily redeemable pursuant to a sinking fund obligation
or otherwise, (ii) is convertible or exchangeable at the option of the holder
thereof for Indebtedness or Disqualified Stock or (iii) is redeemable at the
option of the holder thereof, in whole or in part, in each case on or prior to
the 91st day after the Stated Maturity of the Notes; provided, however, that any
Capital Stock that would not constitute Disqualified Stock but for provisions
thereof giving holders thereof the right to require such Person to repurchase or
redeem such Capital Stock upon the occurrence of an "asset sale" or "change of
control" occurring prior to the 91st day after the Stated Maturity of the Notes
shall not constitute Disqualified Stock if the "asset sale" or "change of
control" provisions applicable to such Capital Stock are not materially more
favorable taken as a whole to the holders of such Capital Stock than the
provisions described under Section 4.9 and Section 4.7.
"EBITDA" for any period means the sum of Consolidated Net Income,
plus the following to the extent deducted in calculating such Consolidated Net
Income: (a) Consolidated Interest Expense, (b) all income tax expense of the
Issuer and its consolidated Restricted Subsidiaries, (c) depreciation expense of
the Issuer and its consolidated Restricted Subsidiaries, (d) amortization
expense of the Issuer and its consolidated Restricted Subsidiaries (excluding
amortization expense attributable to a prepaid cash item that was paid in a
prior period), (e) all other non-cash charges of the Issuer and its consolidated
Restricted Subsidiaries (excluding any such non-cash charge to the extent that
it represents an accrual of or reserve for cash expenditures in any future
period), and (f) any premium or penalty paid in connection with repurchasing,
redeeming, retiring, defeasing or acquiring any Indebtedness prior to maturity
to the extent deducted in calculating Consolidated Net Income, in each case for
such period. Notwithstanding the foregoing, the provision for taxes based on the
income or profits of, and the depreciation and amortization and non-cash charges
of, a Restricted Subsidiary shall be added to the Consolidated Net Income to
compute EBITDA only to the extent (and in the same proportion) that the net
income of such Restricted Subsidiary was included in calculating Consolidated
Net Income and only if a corresponding amount would be permitted at the date of
determination to be paid to the Issuer in the form of a dividend by such
Restricted Subsidiary without prior approval (that has not been obtained),
pursuant to the terms of its charter and all agreements, instruments, judgments,
decrees, orders, statutes, rules and governmental regulations applicable to such
Restricted Subsidiary or its stockholders, without in any event giving effect to
any restrictions or limitations permitted in Section 4.6.
"Equity Offering" means a public or private issuance by the Issuer of
common stock of the Issuer for cash.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
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"GAAP" means generally accepted accounting principles in the United
States of America as in effect as of the Issue Date, including those set forth
in (i) the opinions and pronouncements of the Accounting Principles Board of the
American Institute of Certified Public Accountants, (ii) statements and
pronouncements of the Financial Accounting Standards Board, (iii) such other
statements by such other entity as approved by a significant segment of the
accounting profession and (iv) the rules and regulations of the SEC governing
the inclusion of financial statements (including pro forma financial statements)
in periodic reports required to be filed pursuant to Section 13 of the Exchange
Act, including opinions and pronouncements in staff accounting bulletins and
similar written statements from the accounting staff of the SEC.
"Guarantee" means any obligation, contingent or otherwise, of any
Person directly or indirectly guaranteeing any Indebtedness of any Person and
any obligation, direct or indirect, contingent or otherwise, of such Person (i)
to purchase or pay (or advance or supply funds for the purchase or payment of)
such Indebtedness or other obligation of such Person (whether arising by virtue
of partnership arrangements, or by agreements to keep-well, to purchase assets,
goods, securities or services, to take-or-pay or to maintain financial statement
conditions or otherwise) or (ii) entered into for the purpose of assuring in any
other manner the obligee of such Indebtedness of the payment thereof or to
protect such obligee against loss in respect thereof (in whole or in part);
provided, however, that the term "Guarantee" shall not include endorsements for
collection or deposit in the ordinary course of business. The term "Guarantee"
used as a verb has a corresponding meaning.
"Hedging Obligations" of any Person means the actual obligations of
such Person pursuant to any Interest Rate Agreement or Currency Agreement.
"Holder" or "Noteholder" means the Person in whose name a Note is
registered on the Registrar's books.
"Incur" means issue, assume, Guarantee, incur or otherwise become
liable for; provided, however, that any Indebtedness or Capital Stock of a
Person existing at the time such Person becomes a Subsidiary (whether by merger,
consolidation, acquisition or otherwise) shall be deemed to be Incurred by such
Subsidiary at the time it becomes a Subsidiary unless such Indebtedness or
Capital Stock is repaid or redeemed on the date such Person becomes a
Subsidiary. The term "Incurrence" when used as a noun shall have a correlative
meaning.
"Indebtedness" means, with respect to any Person on any date of
determination (without duplication):
the principal in respect of (A) indebtedness of such Person for money
borrowed and
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(B) indebtedness evidenced by notes, debentures, bonds or other similar
instruments for the payment of which such Person is responsible or liable,
including, in each case, any premium on such indebtedness to the extent
such premium has become due and payable;
all Capitalized Lease Obligations of such Person and all Attributable Debt
in respect of Sale/Leaseback Transactions entered into by such Person;
all obligations of such Person issued or assumed as the deferred purchase
price of property, all conditional sale obligations of such Person and all
obligations of such Person under any title retention agreement (but
excluding trade accounts payable arising in the ordinary course of
business);
all obligations of such Person for the reimbursement of any obligor on any
letter of credit, banker's acceptance or similar credit transaction (other
than obligations with respect to letters of credit and other contingent
liabilities (but only to the extent such contingent liabilities are not
reflected as liabilities on the consolidated balance sheet of such Person)
securing obligations (other than obligations described in clauses (i)
through (iii) above) entered into in the ordinary course of business of
such Person to the extent such letters of credit are not drawn upon or, if
and to the extent drawn upon, such drawing is reimbursed no later than the
tenth Business Day following payment on the letter of credit);
the amount of all obligations of such Person with respect to the
redemption, repayment or other repurchase of any Disqualified Stock or,
with respect to any Subsidiary of such Person, the liquidation preference
with respect to, any Preferred Stock (but excluding, in each case, any
accrued dividends);
all obligations of the type referred to in clauses (i) through (v) of
other Persons and all dividends of other Persons for the payment of which,
in either case, such Person is responsible or liable, directly or
indirectly, as obligor, guarantor or otherwise, including by means of any
Guarantee;
all obligations of the type referred to in clauses (i) through (vi) of
other Persons secured by any Lien on any property or asset of such Person
(whether or not such obligation is assumed by such Person), the amount of
such obligation being deemed to be the lesser of the value of such
property or assets or the amount of the obligation so secured; and
to the extent not otherwise included in this definition, Hedging
Obligations of such Person.
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The amount of Indebtedness of any Person at any date shall be the outstanding
balance at such date of all unconditional obligations as described above or the
accreted value thereof, in the case of Indebtedness issued with original issue
discount, and the maximum liability, upon the occurrence of the contingency
giving rise to the obligation, of any contingent obligations at such date.
"Indebtedness to Adjusted EBITDA Ratio" as of any date of
determination means the ratio of (i) Consolidated Indebtedness as of such date
to (ii) Adjusted EBITDA.
"Indenture" means this Indenture, as amended or supplemented from
time to time.
"Interest Rate Agreement" means with respect to any Person any
interest rate protection agreement, interest rate future agreement, interest
rate option agreement, interest rate swap agreement, interest rate cap
agreement, interest rate collar agreement, interest rate hedge agreement or
other similar agreement or arrangement designed to protect such Person against
fluctuations in interest rates as to which such Person is party or a
beneficiary.
"Investment" in any Person means any direct or indirect advance, loan
(other than advances to customers, lessees or licensees in the ordinary course
of business that are recorded as accounts receivable on the balance sheet of
such Person) or other extension of credit (including by way of Guarantee or
similar arrangement) or capital contribution to (by means of any transfer of
cash or other property to others or any payment for property or services for the
account or use of others), or any purchase or acquisition of Capital Stock,
Indebtedness or other similar instruments issued by such Person. For purposes of
the definitions of "Unrestricted Subsidiary" and "Restricted Payment" and
Section 4.5, (i) "Investment" shall include the portion (proportionate to the
Issuer's equity interest in such Subsidiary) of the fair market value of the net
assets of any Subsidiary of the Issuer at the time that such Subsidiary is
designated an Unrestricted Subsidiary; provided, however, that upon a
redesignation of such Subsidiary as a Restricted Subsidiary, the Issuer shall be
deemed to continue to have a permanent "Investment" in an Unrestricted
Subsidiary equal to an amount (if positive) equal to (x) the Issuer's
"Investment" in such Subsidiary at the time of such redesignation less (y) the
portion (proportionate to the Issuer's equity interest in such Subsidiary) of
the fair market value of the net assets of such Subsidiary at the time that such
Subsidiary is so re-designated a Restricted Subsidiary; and (ii) any property
transferred to or from an Unrestricted Subsidiary shall be valued at its fair
market value at the time of such transfer, in each case as determined in good
faith by the Board of Directors and evidenced by a resolution of such Board of
Directors.
"Issue Date" means the date on which the Notes are originally issued.
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"Legal Holiday" has the meaning ascribed in Section 10.8.
"Lien" means any mortgage, pledge, security interest, encumbrance,
lien or charge of any kind (including any conditional sale or other title
retention agreement or lease in the nature thereof).
"Net Available Cash" from an Asset Disposition means cash payments
received (including any cash payments received by way of deferred payment of
principal pursuant to a note or installment receivable or otherwise and proceeds
from the sale or other disposition of any securities received as consideration,
but only as and when received, but excluding any other consideration received in
the form of assumption by the acquiring Person of Indebtedness or other
obligations relating to such properties or assets or received in any other non
cash form) therefrom, in each case net of (i) all legal, title, accounting,
investment banking and recording tax expenses, commissions and other fees and
expenses incurred, and all Federal, state, provincial, foreign and local taxes
required to be paid or accrued as a liability under GAAP, as a consequence of
such Asset Disposition, (ii) all payments made on any Indebtedness which is
secured by any assets subject to such Asset Disposition, in accordance with the
terms of any Lien upon or other security arrangement of any kind with respect to
such assets, or which must by its terms, or in order to obtain a necessary
consent to such Asset Disposition, or by applicable law, be repaid out of the
proceeds from such Asset Disposition, (iii) all distributions and other payments
required to be made to minority interest holders in Restricted Subsidiaries or
joint ventures as a result of such Asset Disposition, (iv) the deduction of
appropriate amounts to be provided by the seller as a reserve, in accordance
with GAAP, against any liabilities associated with the assets disposed of in
such Asset Disposition and retained by the Issuer or any Restricted Subsidiary
after such Asset Disposition, and (v) any reserves established in respect of the
sales price of such asset for post-closing adjustments, indemnification purposes
or employee termination expenses.
"Net Cash Proceeds", with respect to any issuance or sale of Capital
Stock, means the cash proceeds of such issuance or sale net of attorneys' fees,
accountants' fees, printing costs, underwriters' or placement agents' fees,
discounts or commissions and brokerage, consultant and other fees and expenses
actually incurred in connection with such issuance or sale and net of taxes paid
or payable as a result thereof.
"Non-Recourse Debt" means Indebtedness (i) as to which neither the
Issuer nor any Restricted Subsidiary (a) provides any Guarantee or credit
support of any kind (including any undertaking, Guarantee, indemnity, agreement
or instrument that would constitute Indebtedness) or (b) is directly or
indirectly liable (as a guarantor or otherwise) and (ii) no default with respect
to which (including any rights that the holders thereof may have to take
enforcement action against an Unrestricted Subsidiary) would permit (upon
notice, lapse of time or both) any holder of any other Indebtedness of the
Issuer or any Restricted Subsidiary
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to declare a default under such other Indebtedness or cause the payment thereof
to be accelerated or payable prior to its stated maturity.
"Offering Memorandum" means the Offering Memorandum dated April 13,
1999 relating to the Initial Notes; provided that after the issuance of Exchange
Notes, all references herein to "Offering Memorandum" shall be deemed references
to the prospectus contained in the registration statement relating to the
Exchange Notes.
"Officer" means the Chairman of the Board, the President, the Chief
Executive Officer, any Vice President, the Chief Financial Officer, the
Treasurer or the Secretary of the Issuer, as applicable.
"Officer's Certificate" means a certificate signed by any Officer.
"Opinion of Counsel" means a written opinion that meets the
requirements of Section 10.5 hereof from Dow, Xxxxxx & Xxxxxxxxx, PLLC, or any
other legal counsel who is reasonably acceptable to the Trustee. The counsel may
be an employee of or counsel to the Issuer or the Trustee.
"Permitted Business" means any business conducted by the Issuer and
its Restricted Subsidiaries on the Issue Date and any other business related,
ancillary or complementary to any such business.
"Permitted Holders" means any or all of Xxxxxxx X. Xxxxx, Xxxxx X.
Xxxxxx, Xxx X. Xxxxxx, Welsh, Carson, Xxxxxxxx & Xxxxx, VIII, L.P., WCAS
Information Partners, L.P., WCAS Capital Partners III, L.P., their respective
general partners, employees of Welsh, Carson, Xxxxxxxx & Xxxxx, CIBC WG Argosy
Merchant Fund 2, L.L.C., Co-Investment Merchant Fund 3, LLC, Caravelle
Investment Fund, L.L.C., Tower Parent Corp., Whitney Equity Partners, L.P., X.X.
Xxxxxxx III, L.P., Whitney Strategic Partners III, L.P., X.X. Xxxxxxx Mezzanine
Fund, L.P., Xxxxxx-Xxxxxx Media Partners, L.P., Kitty Hawk Capital Limited
Partnership, III, Kitty Hawk Capital Limited Partnership, IV, Eagle Creek
Capital, L.L.C., The North Carolina Enterprise Fund, L.P., Xxxxxx Family Limited
Partnership, and their respective Affiliates.
"Permitted Investment" means an Investment by the Issuer or any
Restricted Subsidiary in (i) the Issuer, a Wholly Owned Subsidiary or a Person
which will, upon the making of such Investment, become a Wholly Owned
Subsidiary; provided, however, that a loan or other extension of credit by the
Issuer or a Restricted Subsidiary to a Restricted Subsidiary that is not a
Wholly Owned Subsidiary also will constitute a "Permitted Investment"; and
provided further, however, that a Permitted Business is the primary business of
the Person in which any such Investment is made; (ii) another Person if as a
result of such
19
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Investment such other Person is merged or consolidated with or into, or
transfers or conveys all or substantially all its assets to, the Issuer or a
Restricted Subsidiary; provided, however, that such Person's primary business is
a Permitted Business; (iii) Temporary Cash Investments; (iv) receivables owing
to the Issuer or any Restricted Subsidiary, if created or acquired in the
ordinary course of business and payable or dischargeable in accordance with
customary trade terms; provided, however, that such trade terms may include such
concessionary trade terms as the Issuer or any such Restricted Subsidiary deems
reasonable under the circumstances; (v) payroll, travel and similar advances to
cover matters that are expected at the time of such advances ultimately to be
treated as expenses for accounting purposes and that are made in the ordinary
course of business; (vi) loans or advances to employees made in the ordinary
course of business consistent with past practice of the Issuer or such
Restricted Subsidiary, but in any event not to exceed $2.0 million in the
aggregate outstanding at any one time; (vii) stock, obligations or securities
received in settlement of debts created in the ordinary course of business and
owing to the Issuer or any Restricted Subsidiary or in satisfaction of
judgments; (viii) any Person to the extent such investment represents the
non-cash portion of the consideration received for an Asset Disposition as
permitted pursuant to Section 4.7; (ix) Capital Stock of the Issuer or any
Restricted Subsidiary purchased, redeemed or otherwise acquired or retired for
value from members of the Issuer's management or employees, but in any event not
to exceed $2.0 million in the aggregate in any twelve-month period; (x) other
Investments in Permitted Businesses not to exceed, at any one time outstanding
(each such Investment being measured as of the date made and without giving
effect to subsequent changes in value), the greater of (x) $10.0 million and
7.5% of the Issuer's Consolidated Tangible Assets; (xi) any Interest Rate
Agreement or Currency Agreement; (xii) any acquisition of assets solely in
exchange for the issuance of Capital Stock (other than Disqualified Stock) of
the Issuer; (xiii) prepaid expenses, negotiable instruments held for collection
and lease, utility and workers' compensation, performance and other similar
deposits; (xiv) deposits of proceeds from Asset Dispositions with a "qualified
intermediary," "qualified trustee" or similar person for purposes of
facilitating a "like-kind" exchange made in accordance with the applicable
provisions of the Internal Revenue Code of 1986, as amended; provided, however,
that the making of any Permitted Investment pursuant to this clause (xiv) will
not in any manner violate Section 4.7; and (xv) Investments made out of the Net
Cash Proceeds or Qualified Proceeds of the issuance or sale, other than to a
Subsidiary of the Issuer, of Capital Stock of the Issuer, other than
Disqualified Stock, to the extent that such Net Cash Proceeds or Qualified
Proceeds have not been applied to make a Restricted Payment or to effect other
transactions pursuant to Section 4.5 or to the extent such Net Cash Proceeds or
Qualified Proceeds have not been used to Incur Indebtedness.
"Permitted Liens" means, with respect to any Person, (a) pledges or
deposits by such Person under worker's compensation laws, unemployment insurance
laws or similar legislation, or good faith deposits in connection with bids,
tenders, contracts (other than for
20
-20-
the payment of Indebtedness) or leases to which such Person is a party, or
deposits to secure public or statutory obligations of such Person or deposits or
cash or United States government bonds to secure surety or appeal bonds to which
such Person is a party, or deposits as security for contested taxes or import
duties or for the payment of rent, in each case incurred in the ordinary course
of business; (b) Liens imposed by law, such as carriers', warehousemen's,
landlords' and mechanics' Liens, in each case for sums not yet due or being
contested in good faith by appropriate proceeding, or judgment Liens not giving
rise to an Event of Default so long as any appropriate legal proceedings which
may have been duly initiated for the review of such judgment shall not have been
finally terminated or the period within which such proceedings may be initiated
shall not have expired; (c) Liens for property taxes not yet subject to
penalties for non-payment or which are being contested in good faith by
appropriate proceedings; (d) Liens in favor of issuers of surety bonds or
letters of credit issued pursuant to the request of and for the account of such
Person in the ordinary course of its business; (e) minor survey exceptions,
minor encumbrances, easements or reservations of, or rights of others for,
licenses, rights of way, sewers, electric lines, telegraph and telephone lines
and other similar purposes, or zoning or other restrictions as to the use of
real properties or liens incidental to the conduct of the business of such
Person or to the ownership of its properties which were not incurred in
connection with Indebtedness and which do not in the aggregate materially
adversely affect the value of said properties or materially impair their use in
the operation of the business of such Person; (f) Liens securing Hedging
Obligations so long as the related Indebtedness is, and is permitted to be under
this Indenture, secured by a Lien on the same property securing such Hedging
Obligations; (g) leases and subleases of real property which do not interfere
with the ordinary conduct of the business of the Issuer or any of its Restricted
Subsidiaries, and which are made on customary and usual terms applicable to
similar properties, and Liens securing the obligations (other than Indebtedness)
of the Issuer or any of its Restricted Subsidiaries under any such leases and
subleases of real property; (h) Liens existing as of the date on which the Notes
are originally issued and Liens created by this Indenture; (i) Liens created
solely for the purpose of securing the payment of all or a part of the purchase
price of assets or property acquired or constructed in the ordinary course of
business after the date on which the Notes are originally issued; provided,
however, that (A) the Indebtedness secured by such Liens shall have otherwise
been permitted to be issued under this Indenture and (B) such Liens shall not
encumber any other assets or property of the Issuer or any of its Restricted
Subsidiaries; (j) Liens on the assets or property of a Restricted Subsidiary of
the Issuer existing at the time such Restricted Subsidiary became a Subsidiary
of the Issuer and not incurred as a result of (or in connection with or in
anticipation of) such Restricted Subsidiary becoming a Subsidiary of the Issuer;
provided, however, that (A) any such Lien does not by its terms cover any
property or assets after the time such Restricted Subsidiary becomes a
Subsidiary which were not covered immediately prior to such transaction, (B) the
Incurrence of the Indebtedness secured by such Lien shall have otherwise been
permitted to be issued under this Indenture, and (C) such Liens do not extend to
or cover
21
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any other property or assets of the Issuer or any of its Restricted
Subsidiaries; (k) Liens securing Indebtedness outstanding under a Credit
Facility and any other Liens securing Indebtedness permitted under this
Indenture to be Incurred by a Restricted Subsidiary; (l) Liens extending,
renewing or replacing in whole or in part a Lien permitted by this Indenture;
provided, however, that (A) such Liens do not extend beyond the property subject
to the existing Lien and improvements and construction on such property and (B)
the Indebtedness secured by the Lien may not exceed the Indebtedness secured at
the time by the existing Lien; (m) Liens Incurred in the ordinary course of
business by the Issuer or any Restricted Subsidiary of the Issuer with respect
to obligations that do not exceed $10.0 million at any one time outstanding and
that (i) are not Incurred in connection with the borrowing of money or the
obtaining of advances of credit (other than trade credit in the ordinary course
of business) and (ii) do not in the aggregate materially detract from the value
of the property or materially impair the use thereof in the operation of
business by the Issuer or such Restricted Subsidiary; (n) Liens in favor of the
Issuer or a Wholly Owned Subsidiary; (o) any interest in or title of a lessor to
any property subject to a Capitalized Lease Obligation permitted to be Incurred
under this Indenture; (p) Liens on the Capital Stock of Unrestricted
Subsidiaries; and (q) the Liens to be granted pursuant to the terms of the
security and subordination agreement, as amended, modified or supplemented from
time to time, to be entered into pursuant to the terms of the agreement and plan
of merger, dated as of February 10, 1999, among the Issuer, SpectraSite
Communications, Inc., SHI Merger Sub, Inc., Nextel Communications, Inc. and
certain of its subsidiaries.
"Person" means any individual, corporation, partnership, joint
venture, limited liability company, association, joint-stock company, trust,
unincorporated organization, government or any agency or political subdivision
thereof or any other entity.
"Preferred Stock", as applied to the Capital Stock of any Person,
means Capital Stock of any class or classes (however designated) which is
preferred as to the payment of dividends or distributions, or as to the
distribution of assets upon any voluntary or involuntary liquidation or
dissolution of such Person, over shares of Capital Stock of any other class of
such Person.
"Principal" of a Note means the principal of the Note plus the
premium, if any, payable on the Note which is due or overdue or is to become due
at the relevant time.
"Qualified Proceeds" means assets that are used or useful in, or
Capital Stock of any Person engaged in, a Permitted Business.
"Refinance" means, in respect of any Indebtedness, to refinance,
extend, renew, refund, repay, prepay, redeem, purchase, defease or retire, or to
issue other Indebtedness in exchange or replacement for, such indebtedness.
"Refinanced" and
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"Refinancing" shall have correlative meanings.
"Refinancing Indebtedness" means Indebtedness that Refinances any
Indebtedness of the Issuer or any Restricted Subsidiary existing on the date of
this Indenture or Incurred in compliance with this Indenture (including
Indebtedness of the Issuer that Refinances Indebtedness of any Restricted
Subsidiary and Indebtedness of any Restricted Subsidiary that Refinances
Indebtedness of another Restricted Subsidiary) including Indebtedness that
Refinances Refinancing Indebtedness; provided, however, that (i) the Refinancing
Indebtedness has a Stated Maturity no earlier than the earlier of the Stated
Maturity of the Notes and the Stated Maturity of the Indebtedness being
Refinanced, (ii) the Refinancing Indebtedness has an Average Life at the time
such Refinancing Indebtedness is Incurred that is equal to or greater than the
Average Life of the Notes and (iii) such Refinancing Indebtedness is Incurred in
an aggregate principal amount (or if issued with original issue discount, an
aggregate issue price) that is equal to or less than the sum of the aggregate
principal amount (or if issued with original issue discount, the aggregate
accreted value) then outstanding or committed (plus fees and expenses, including
any premium and defeasance costs) under the Indebtedness being Refinanced;
provided further, however, that Refinancing Indebtedness shall not include (x)
Indebtedness of a Subsidiary that Refinances Indebtedness of the Issuer or (y)
Indebtedness of the Issuer or a Subsidiary that refinances Indebtedness of an
Unrestricted Subsidiary.
"Restricted Payment" with respect to any Person means (i) the
declaration or payment of any dividends or any other distributions of any sort
in respect of its Capital Stock or similar payment to the direct or indirect
holders of its Capital Stock in respect thereof (other than dividends or
distributions payable solely in its Capital Stock (other than Disqualified
Stock) and dividends or distributions payable solely to the Issuer or a
Restricted Subsidiary, and other than pro rata dividends or other distributions
made by a Subsidiary that is not a Wholly Owned Subsidiary to minority
stockholders (or owners of an equivalent interest in the case of a Subsidiary
that is an entity other than a corporation)), (ii) the purchase, redemption or
other acquisition or retirement for value of any Capital Stock of the Issuer
held by any Person or of any Capital Stock of a Restricted Subsidiary held by
any Person (other than the Issuer or a Restricted Subsidiary), other than the
exercise by the Issuer of any option to convert or exchange any Capital Stock
into Indebtedness so long as such Indebtedness is permitted to be Incurred as of
the date of such exercise pursuant to this Indenture, and other than as
permitted by clause (ix) of the definition of "Permitted Investments"; (iii) the
purchase, repurchase, redemption, defeasance or other acquisition or retirement
for value, prior to scheduled maturity, scheduled repayment or scheduled sinking
fund payment of any Subordinated Obligations (other than the purchase,
repurchase or other acquisition of Subordinated Obligations purchased in
anticipation of satisfying a sinking fund obligation, principal installment or
final maturity, in each case due within one year of the date of
23
-23-
acquisition); or (iv) the making of any Investment in any Person (other than a
Permitted Investment).
"Restricted Subsidiary" means any Subsidiary of the Issuer other than
an Unrestricted Subsidiary.
"Sale/Leaseback Transaction" means an arrangement relating to
property now owned or hereafter acquired whereby the Issuer or a Restricted
Subsidiary transfers such property to a Person and the Issuer or a Restricted
Subsidiary leases it from such Person.
"SEC" means the U.S. Securities and Exchange Commission.
"Secured Indebtedness" means any Indebtedness of the Issuer secured
by a Lien.
"Securities Act" means the Securities Act of 1933, as amended.
"Semi-Annual Accrual Date" has the meaning set forth in the
definition of the term "Accreted Value."
"Senior Indebtedness" means (i) Indebtedness of the Issuer, whether
outstanding on the Issue Date or thereafter Incurred, and (ii) accrued and
unpaid interest (including interest accruing on or after the filing of any
petition in bankruptcy or for reorganization relating to the Issuer to the
extent post-filing interest is allowed in such proceeding) in respect of (A)
indebtedness of the Issuer for money borrowed and (B) indebtedness evidenced by
notes, debentures, bonds or other similar instruments for the payment of which
the Issuer is responsible or liable unless, in the case of (i) and (ii), in the
instrument creating or evidencing the same or pursuant to which the same is
outstanding, it is provided that such obligations are subordinate in right of
payment to the Notes; provided, however, that Senior Indebtedness shall not
include (1) any obligation of the Issuer to any Subsidiary, (2) any liability
for Federal, state, local or other taxes owed or owing by the Issuer, (3) any
accounts payable or other liability to trade creditors arising in the ordinary
course of business (including guarantees thereof or instruments evidencing such
liabilities), (4) any Indebtedness of the Issuer (and any accrued and unpaid
interest respect thereof) which is subordinate or junior in any respect to any
other Indebtedness or other obligation of the Issuer, (5) that portion of any
Indebtedness which at the time of Incurrence is Incurred in violation of this
Indenture.
"Significant Subsidiary" means any Restricted Subsidiary that would
be a "Significant Subsidiary" of the Issuer within the meaning of Rule 1-02
under Regulation S-X promulgated by the SEC.
24
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"Site Management Contract" means any agreement pursuant to which the
Issuer or any of its Restricted Subsidiaries has the right to substantially
control Tower Assets and the revenues derived from the rental or use thereof.
"Specified Date" has the meaning set forth in the definition of the
term "Accreted Value."
"Stated Maturity" means, with respect to any security, the date
specified in such security as the fixed date on which the payment of principal
of such security is due and payable, including pursuant to any mandatory
redemption provision (but excluding any provision providing for the repurchase
of such security at the option of the holder thereof upon the happening of any
contingency beyond the control of the issuer unless such contingency has
occurred).
"Subordinated Obligation" means any Indebtedness of the Issuer
(whether outstanding on the Issue Date or thereafter Incurred) which is
subordinate or junior in right of payment to the Notes pursuant to a written
agreement.
"Subsidiary" of any Person means any corporation, association,
partnership or other business entity of which more than 50% of the total voting
power of shares of Capital Stock or other interests (including partnership
interests) entitled (without regard to the occurrence of any contingency) to
vote in the election of directors, managers or trustees thereof is at the time
owned or controlled, directly or indirectly, by (i) such Person, (ii) such
Person and one or more Subsidiaries of such Person or (iii) one or more
Subsidiaries of such Person.
"Temporary Cash Investments" means any of the following: (i) any
investment in direct obligations of the United States of America or any agency
thereof or obligations Guaranteed by the United States of America or any agency
thereof, (ii) investments in time deposit accounts, certificates of deposit and
money market deposits maturing within one year of the date of acquisition
thereof issued by a bank or trust company which is organized under the laws of
the United States of America, any state thereof or any foreign country
recognized by the United States of America having capital, surplus and undivided
profits aggregating in excess of $500.0 million (or the foreign currency
equivalent thereof) and whose long-term debt is rated "A" (or such similar
equivalent rating) or higher by at least one nationally recognized statistical
rating organization (as defined in Rule 436 under the Securities Act) or any
money market fund sponsored by a registered broker dealer or mutual fund
distributor, (iii) repurchase obligations with a term of not more than 30 days
for underlying securities of the types described in clause (i) above entered
into with a bank meeting the qualifications described in clause (ii) above, (iv)
investments in commercial paper, maturing not more than 90 days after the date
of acquisition, issued by a corporation (other than an Affiliate of the
25
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Issuer) organized and in existence under the laws of the United States of
America or any foreign country recognized by the United States of America with a
rating at the time as of which any investment therein is made of "P-1" (or
higher) according to Xxxxx'x Investors Service, Inc. or "A-1" (or higher)
according to Standard & Poor's Ratings Group, and (v) investments in securities
with maturities of six months or less from the date of acquisition issued or
fully guaranteed by any state, commonwealth or territory of the United States of
America, or by any political subdivision or taxing authority thereof, and rated
at least "A" by Standard & Poor's Ratings Group or "A" by Xxxxx'x Investors
Service, Inc.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. Sections
77aaa-77bbbb) as in effect on the date of this Indenture.
"Tower Asset Exchange" means any transaction in which the Issuer or a
Restricted Subsidiary exchanges assets for Tower Assets or Tower Assets and cash
or cash equivalents where the fair market value (evidenced by a resolution of
the Board of Directors set forth in an Officer's Certificate delivered to the
Trustee) of the Tower Assets and cash or cash equivalents received by the Issuer
and its Restricted Subsidiaries in such exchange is at least equal to the fair
market value of the assets disposed in such exchange.
"Tower Assets" means wireless communication transmission towers and
related assets that are located on the site of a transmission tower.
"Tower EBITDA" means, for any period, the EBITDA of the Issuer and
its Restricted Subsidiaries for such period that is directly attributable to
site rental revenue, license or management fees paid to manage, lease or
sublease space on communication sites owned, leased or managed by the Issuer
(collectively, "site leasing revenues"), all determined on a consolidated basis
and in accordance with GAAP. Tower EBITDA will not include revenue derived from
the sale of assets. In allocating, corporate, general, administrative and other
operating expenses that are not allocated to any particular line of business in
the financial statements of the Issuer, such expenses shall be allocated to the
Issuer's site leasing business in proportion to the percentage of the Issuer's
total revenues for the applicable period that were site leasing revenues.
"Trust Officer" means any trust officer, assistant vice president, or
vice president of the Trustee assigned by the Trustee to administer this
Indenture.
"Trustee" means the party named as such in this Indenture until a
successor replaces it and, thereafter, means such successor.
"2008 Notes" means the Issuer's 12% Senior Discount Notes Due 2008.
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"Uniform Commercial Code" means the New York Uniform Commercial Code
as in effect from time to time.
"Unrestricted Subsidiary" means (i) any Subsidiary of the Issuer that
at the time of determination shall be designated an Unrestricted Subsidiary by
the Board of Directors in the manner provided below and (ii) any Subsidiary of
an Unrestricted Subsidiary. The Board of Directors may designate any Subsidiary
of the Issuer (including any newly acquired or newly formed Subsidiary of the
Issuer) to be an Unrestricted Subsidiary unless such Subsidiary or any of its
Subsidiaries owns any Capital Stock or Indebtedness of, or owns or holds any
Lien on any property of, the Issuer or any other Restricted Subsidiary of the
Issuer that is not a Subsidiary of the Subsidiary to be so designated; provided,
however, that either (A) the Subsidiary to be so designated has total
consolidated assets of $1,000 or less or (B) if such Subsidiary has consolidated
assets greater than $1,000, then such designation would be permitted under
Section 4.5. The Board of Directors may designate any Unrestricted Subsidiary to
be a Restricted Subsidiary; provided, however, that (a) immediately after giving
effect to such designation no Default shall have occurred and be continuing and
(b) such designation shall be deemed to be an Incurrence of Indebtedness by a
Restricted Subsidiary of any outstanding Indebtedness of such Unrestricted
Subsidiary and such designation shall only be permitted if such Indebtedness is
permitted under this Indenture. Any such designation by the Board of Directors
shall be evidenced to the Trustee by promptly filing with the Trustee a copy of
the Board Resolution giving effect to such designation and an Officer's
Certificate certifying that such designation complied with the foregoing
provisions.
"U.S. Government Obligations" means direct obligations (or
certificates representing an ownership interest in such obligations) of the
United States of America (including any agency or instrumentality thereof) for
the payment of which the full faith and credit of the United States of America
is pledged and which are not callable or redeemable at the issuer's option.
"Voting Stock" of a Person means all classes of Capital Stock or
other interests (including partnership interests) of such Person then
outstanding and normally entitled (without regard to the occurrence of any
contingency) to vote in the election of directors, managers, or trustee thereof.
"Wholly Owned Subsidiary" means a Restricted Subsidiary of the Issuer
all the Capital Stock of which (other than directors' qualifying shares) is
owned by the Issuer or another Wholly Owned Subsidiary.
SECTION 1.2. Other Definitions.
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DEFINED IN
TERM SECTION
---- -------
"Affiliate Transaction"....................................... 4.8
"Appendix".................................................... 2.1
"Authenticating Agent"........................................ 2.2
"Bankruptcy Law".............................................. 6.1
"covenant defeasance option".................................. 8.1(b)
"Custodian"................................................... 6.1
"Event of Default"............................................ 6.1
"legal defeasance option"..................................... 8.1(b)
"Offer" ...................................................... 4.7(b)
"Offer Amount"................................................ 4.7(b)
"Offer Period"................................................ 4.7(b)
"Paying Agent"................................................ 2.3
"Purchase Date"............................................... 4.7(b)
"Registrar"................................................... 2.3
"Successor Issuer"............................................ 5.1
SECTION 1.3. Incorporation by Reference of Trust Indenture Act. The
mandatory provisions of the TIA are incorporated by reference in and made a part
of this Indenture. The following TIA terms have the following meanings:
"Commission" means the SEC.
"indenture securities" means the Notes.
"indenture security holder" means a Holder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
"obligor" on the indenture securities means the Issuer and any other
obligor on the indenture securities.
All other TIA terms used in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by SEC rule have the
meanings assigned to them by such definitions.
SECTION 1.4. Rules of Construction. Unless the context otherwise
requires:
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(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 GAAP;
(3) "or" is not exclusive;
(4) "including" means including without limitation;
(5) words in the singular include the plural and words in the plural
include the singular;
(6) unsecured Indebtedness shall not be deemed to be subordinate or
junior to Secured Indebtedness merely by virtue of its nature as unsecured
Indebtedness;
(7) except as otherwise expressly provided, the principal amount of
any noninterest bearing or other discount security at any date shall be
the principal amount thereof that would be shown on a balance sheet of the
issuer dated such date prepared in accordance with GAAP;
(8) the principal amount of any Preferred Stock shall be (i) the
maximum liquidation preference of such Preferred Stock or (ii) the maximum
mandatory redemption or mandatory repurchase price with respect to such
Preferred Stock, whichever is greater; and
(9) except as otherwise expressly provided, all references to the
date the Notes were originally issued shall refer to the date the Initial
Notes were originally issued.
SECTION 1.5. One Class of Notes. The Initial Notes, the Private
Exchange Notes and the Exchange Notes shall vote and consent together on all
matters as one class and none of the Initial Notes, the Private Exchange Notes
or the Exchange Notes shall have the right to vote or consent as a separate
class on any matter.
ARTICLE II
THE NOTES
SECTION 2.1. Form and Dating. Certain provisions relating to the
Initial Notes, the Private Exchange Notes and the Exchange Notes are set forth
in the Rule 144A/Regulation S Appendix attached hereto (the "Appendix"), which
is hereby incorporated
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in and expressly made a part of this Indenture. The Initial Notes and the
Trustee's certificate of authentication thereof shall be substantially in the
form of Exhibit 1 to the Appendix, which is hereby incorporated in and expressly
made a part of this Indenture. The Exchange Notes, the Private Exchange Notes
and the Trustee's certificate of authentication thereof shall be substantially
in the form of Exhibit A, which is hereby incorporated by reference and
expressly made a part of this Indenture. The Notes may have notations, legends
or endorsements required by law, rule of any securities exchange or
over-the-counter market on which such Notes are then listed or quoted, or usage,
in addition to those set forth on the Appendix and Exhibit A. The Issuer and the
Trustee shall approve the forms of the Notes and any notation, endorsement or
legend on them. Each Note shall be dated the date of its authentication. The
terms of the Notes set forth in the Appendix and Exhibit A are part of the terms
of this Indenture and, to the extent applicable, the Issuer and the Trustee, by
their execution and delivery of this Indenture, expressly agree to be bound by
such terms.
SECTION 2.2. Execution and Authentication. Two Officers shall sign
the Notes for the Issuer by manual or facsimile signature.
If an Officer whose signature is on a Note no longer holds that
office at the time the Trustee authenticates the Note, the Note shall be valid
nevertheless.
A Note shall not be valid until an authorized signatory of the
Trustee manually authenticates the Note. The signature of the Trustee on a Note
shall be conclusive evidence that such Note has been duly and validly
authenticated and issued under this Indenture.
The Trustee may appoint an agent (the "Authenticating Agent")
reasonably acceptable to the Issuer to authenticate the Notes. Unless limited by
the terms of such appointment, any such Authenticating Agent may authenticate
Notes whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such agent.
SECTION 2.3. Registrar and Paying Agent. The Issuer shall (i) appoint
an agent (the "Registrar") who shall maintain an office or agency where Notes
may be presented for registration of transfer or for exchange and (ii) an agent
(the "Paying Agent") who shall maintain an office or agency where Notes may be
presented for payment. The Registrar shall keep a register of the Notes and of
their transfer and exchange. The Issuer may have one or more co-registrars and
one or more additional paying agents. The term "Paying Agent" includes any such
additional paying agent.
In the event the Issuer shall retain any Person not a party to this
Indenture as an agent hereunder, the Issuer shall enter into an appropriate
agency agreement with any Registrar, Paying Agent or co-registrar not a party to
this Indenture, which shall incorporate
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the terms of the TIA. The agreement shall implement the provisions of this
Indenture that relate to such agent. The Issuer shall notify the Trustee of the
name and address of each such agent. If the Issuer fails to maintain a Registrar
or Paying Agent, the Trustee shall act as such and shall be entitled to
appropriate compensation therefor pursuant to Section 7.7. The Issuer or any of
its domestically incorporated Wholly Owned Subsidiaries may act as Paying Agent.
The Issuer initially appoints the Trustee as Registrar and Paying
Agent for the Notes.
SECTION 2.4. Paying Agent to Hold Money in Trust. By at least 11:00
a.m. (New York City time) on the date on which any principal or interest on any
Note is due and payable, the Issuer shall deposit with the Paying Agent a sum
sufficient to pay such principal or interest when due. The Issuer shall require
each Paying Agent (other than the Trustee) to agree in writing that such Paying
Agent shall hold in trust for the benefit of Noteholders or the Trustee all
money held by such Paying Agent for the payment of principal or interest on the
Notes and shall notify the Trustee of any default by the Issuer in making any
such payment. If the Issuer or a Subsidiary acts as Paying Agent, it shall
segregate the money held by it as Paying Agent and hold it as a separate trust
fund. The Issuer at any time may require a Paying Agent (other than the Trustee)
to pay all money held by it to the Trustee and to account for any funds
disbursed by such Paying Agent. Upon complying with this Section, the Paying
Agent (if other than the Issuer or a Subsidiary) shall have no further liability
for the money delivered to the Trustee. Upon any bankruptcy, reorganization or
similar proceeding with respect to the Issuer, the Trustee shall serve as Paying
Agent for the Notes.
SECTION 2.5. Noteholder Lists. The Trustee shall preserve in as
current a form as is reasonably practicable the most recent list available to it
of the names and addresses of Noteholders. If the Trustee or any Paying Agent is
not the Registrar, the Issuer shall cause the Registrar to furnish to the
Trustee or any such Paying Agent, in writing at least five Business Days before
each interest payment date and at such other times as the Trustee or any such
Paying Agent may request in writing, a list in such form and as of such date as
the Trustee may reasonably require of the names and addresses of Noteholders.
SECTION 2.6. [Intentionally Omitted]
SECTION 2.7. Replacement Notes. If a mutilated Note is surrendered to
the Trustee or if the Holder of a Note shall provide the Issuer and the Trustee
with evidence to their satisfaction that the Note has been lost, destroyed or
wrongfully taken, the Issuer shall issue and the Trustee shall authenticate a
replacement Note if the requirements of Section 8-405 of the Uniform Commercial
Code are met and the Holder satisfies any other reasonable requirements of the
Trustee. If required by the Trustee or the Issuer, such Holder shall furnish an
indemnity bond sufficient in the judgment of the Issuer and the Trustee to
protect the
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Issuer, the Trustee, the Paying Agent, the Registrar and any co-registrar from
any loss which any of them may suffer if a Note is replaced. The Issuer and the
Trustee may charge the Holder for their expenses in replacing a Note, including
reasonable fees and expenses of counsel. Every replacement Note is an additional
obligation of the Issuer.
SECTION 2.8. Outstanding Notes. Notes outstanding at any time are all
Notes authenticated by the Trustee except for those canceled, those delivered
for cancellation and those described in this Section 2.8 as not outstanding. A
Note does not cease to be outstanding because the Issuer or an Affiliate of the
Issuer holds the Note.
If a Note is replaced pursuant to Section 2.7, it ceases to be
outstanding unless the Trustee and the Issuer receive proof satisfactory to them
that the replaced Note is held by a bona fide purchaser.
If the Paying Agent segregates and holds in trust, in accordance with
this Indenture, on a redemption date or maturity date money sufficient to pay
all principal and interest payable on that date with respect to the Notes (or
portions thereof) to be redeemed or maturing, as the case may be, and the Paying
Agent is not prohibited from paying such money to the Noteholders on that date
pursuant to the terms of this Indenture, then on and after that date such Notes
(or portions thereof) cease to be outstanding and interest on them ceases to
accrue.
SECTION 2.9. Temporary Notes. Until definitive Notes are ready for
delivery, the Issuer may prepare and the Trustee shall authenticate temporary
Notes. Temporary Notes shall be substantially in the form of definitive Notes
but may have variations that the Issuer considers appropriate for temporary
Notes. Without unreasonable delay, the Issuer shall prepare and the Trustee
shall authenticate definitive Notes. After the preparation of definitive Notes,
the temporary Notes shall be exchangeable for definitive Notes upon surrender of
the temporary Notes at any office or agency maintained by the Issuer for that
purpose and such exchange shall be without charge to the Holder. Upon surrender
for cancellation of any one or more temporary Notes, the Issuer shall execute,
and the Trustee shall authenticate and deliver in exchange therefor, one or more
definitive Notes representing an equal principal amount of Notes. Until so
exchanged, the Holder of temporary Notes shall in all respects be entitled to
the same benefits under this Indenture as a Holder of definitive Notes.
SECTION 2.10. Cancellation. The Issuer at any time may deliver Notes
to the Trustee for cancellation. The Registrar and the Paying Agent shall
forward to the Trustee for cancellation any Notes surrendered to them for
registration of transfer or exchange or payment. The Trustee shall cancel and
destroy (subject to the record retention requirements of the Exchange Act) all
Notes surrendered for registration of transfer or exchange, payment
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or cancellation and deliver a certificate of such destruction to the Issuer
unless the Issuer directs the Trustee to deliver canceled Notes to the Issuer.
The Issuer may not issue new Notes to replace Notes it has redeemed, paid or
delivered to the Trustee for cancellation.
SECTION 2.11. Defaulted Interest. If the Issuer defaults in a payment
of interest on the Notes, the Issuer shall pay defaulted interest (plus interest
on such defaulted interest to the extent lawful) at the rate specified therefor
in the Notes in any lawful manner. The Issuer may pay the defaulted interest to
the Persons who are Noteholders on a subsequent special record date. The Issuer
shall fix or cause to be fixed (or upon the Issuer's failure to do so the
Trustee shall fix) any such special record date and payment date to the
reasonable satisfaction of the Trustee which specified record date shall not be
less than 10 days prior to the payment date for such defaulted interest and
shall promptly mail or cause to be mailed to each Noteholder a notice that
states the special record date, the payment date and the amount of defaulted
interest to be paid. The Issuer shall notify the Trustee in writing of the
amount of defaulted interest proposed to be paid on each Note and the date of
the proposed payment, and at the same time the Issuer shall deposit with the
Trustee an amount of money equal to the aggregate amount proposed to be paid in
respect of such defaulted interest or shall make arrangements satisfactory to
the Trustee for such deposit prior to the date of the proposed payment, such
money when so deposited to be held in trust for the benefit of the Person
entitled to such defaulted interest as provided in this Section 2.11.
SECTION 2.12. CUSIP Numbers. The Issuer in issuing the Notes may use
"CUSIP" numbers (if then generally in use) and, if so, the Trustee shall use
"CUSIP" numbers in notices of redemption as a convenience to Holders; provided,
however, that any such notice may state that no representation is made as to the
correctness of such numbers either as printed on the Notes or as contained in
any notice of a redemption and that reliance may be placed only on the other
identification numbers printed on the Notes, and any such redemption shall not
be affected by any defect in or omission of such numbers.
ARTICLE III
REDEMPTION
SECTION 3.1. Notices to Trustee. If the Issuer elects to redeem Notes
pursuant to paragraph 5 of the Notes (Exhibit 1 to the Appendix), it shall
notify the Trustee and the Paying Agent in writing of the redemption date and
the principal amount at maturity of Notes to be redeemed and the redemption
price.
The Issuer shall give each notice to the Trustee and the Paying Agent
provided for in this Section at least 60 days before the redemption date unless
the Trustee and the
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Paying Agent consent to a shorter period. Such notice shall be accompanied by an
Officer's Certificate from the Issuer to the effect that such redemption will
comply with the conditions herein. The record date relating to such redemption
shall be selected by the Issuer and set forth in the related notice given to the
Trustee and the Paying Agent, which record date shall be not less than 15 days
prior to the date selected for redemption by the Issuer.
SECTION 3.2. Selection of Notes to Be Redeemed. In the case of any
partial redemption, selection of the Notes for redemption will be made by the
Trustee in compliance with the requirements of the principal national securities
exchange, if any, on which the Notes are listed, or, if the Notes are not so
listed, on a pro rata basis, by lot or by such other method as the Trustee in
its sole discretion shall deem to be fair and appropriate, although no Note of
$1,000 in original principal amount or less will be redeemed in part. Provisions
of this Indenture that apply to Notes called for redemption also apply to
portions of Notes called for redemption. Upon request of the Issuer, the Trustee
shall notify the Issuer of the Notes or portions of Notes to be redeemed.
SECTION 3.3. Notice of Redemption. At least 30 days but not more than
60 days before a date for redemption of Notes, the Trustee at the expense of the
Issuer shall mail a notice of redemption by first-class mail to each Holder of
Notes to be redeemed.
The notice shall identify the Notes to be redeemed and shall state:
(1) the redemption date;
(2) the redemption price;
(3) the name and address of the Paying Agent;
(4) that Notes called for redemption must be surrendered to the
Paying Agent to collect the redemption price plus accrued and unpaid
interest, if any;
(5) if fewer than all the outstanding Notes are to be redeemed, the
identification and principal amounts of the particular Notes to be
redeemed;
(6) that, unless the Issuer defaults in making such redemption
payment or the Paying Agent is prohibited from making such payment
pursuant to the terms of this Indenture, interest on Notes (or portion
thereof) called for redemption ceases to accrue on and after the
redemption date;
(7) the CUSIP number, if any, printed on the Notes being redeemed;
and
(8) that no representation is made as to the correctness or accuracy
of the
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CUSIP number, if any, listed in such notice or printed on the Notes.
The Trustee shall give the notice of redemption in the Issuer's name
and at the Issuer's expense. In such event, the Issuer shall provide the Trustee
with the information required by this Section 3.3.
SECTION 3.4. Effect of Notice of Redemption. Once notice of
redemption is mailed, Notes called for redemption shall become due and payable
on the redemption date and at the redemption price stated in the notice. Upon
surrender to the Paying Agent, such Notes shall be paid at the redemption price
stated in the notice, plus accrued and unpaid interest, if any, to the
redemption date; provided that the Issuer shall have deposited the redemption
price with the Paying Agent or the Trustee on or before 11:00 a.m. (New York
City time) on the date of redemption; provided, further, that if the redemption
date is after a regular record date and on or prior to the interest payment
date, the accrued and unpaid interest shall be payable to the Noteholder of the
redeemed Notes registered on the relevant record date. Failure to give notice or
any defect in the notice to any Holder shall not affect the validity of the
notice to any other Holder.
SECTION 3.5. Deposit of Redemption Price. By at least 11:00 a.m. (New
York City time) on the date on which any principal of or interest on any Note is
due and payable, the Issuer shall deposit with the Paying Agent (or, if the
Issuer or a Subsidiary is the Paying Agent, shall segregate and hold in trust)
money sufficient to pay the redemption price of and accrued and unpaid interest,
if any, on all Notes to be redeemed on that date other than Notes or portions of
Notes called for redemption which are owned by the Issuer or a Subsidiary and
have been delivered by the Issuer or such Subsidiary to the Trustee for
cancellation.
If the Issuer complies with the preceding paragraph, then, unless the
Issuer defaults in the payment of such redemption price, the Notes shall cease
to accrete and interest on the Notes to be redeemed will cease to accrue on and
after the applicable redemption date, whether or not such Notes are presented
for payment.
SECTION 3.6. Notes Redeemed in Part. Upon surrender of a Note that is
redeemed in part, the Issuer shall execute and the Trustee shall authenticate
for the Holder (at the Issuer's expense) a new Note equal in a principal amount
at maturity to the unredeemed portion of the Note surrendered.
ARTICLE IV
COVENANTS
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SECTION 4.1. Payment of Notes. The Issuer shall promptly pay the
principal of and interest on the Notes on the dates and in the manner provided
in the Notes and in this Indenture. Principal and interest shall be considered
paid on the date due if on or before 11:00 a.m. (New York City time) on such
date the Trustee or the Paying Agent holds (or, if the Issuer or a Subsidiary is
the Paying Agent, the segregated account or separate trust fund maintained by
the Issuer or such Subsidiary pursuant to Section 2.4) in accordance with this
Indenture money sufficient to pay all principal and interest then due and the
Trustee or the Paying Agent (or, if the Issuer or a Subsidiary is the Paying
Agent, the Issuer or such Subsidiary), as the case may be, is not prohibited
from paying such money to the Noteholders on that date pursuant to the terms of
this Indenture.
The Issuer shall pay interest on overdue principal at the rate
specified therefor in the Notes, and it shall pay interest on overdue
installments of interest at the same rate to the extent lawful as provided in
Section 2.11.
Notwithstanding anything to the contrary contained in this Indenture,
the Issuer or the Paying Agent may, to the extent it is required to do so by
law, deduct or withhold income or other similar taxes imposed by the United
States of America or other domestic or foreign taxing authorities from principal
or interest payments hereunder.
SECTION 4.2. SEC Reports. Notwithstanding that the Issuer may not be
required to remain subject to the reporting requirements of Section 13 or 15(d)
of the Exchange Act, the Issuer will file with the SEC (unless the SEC does not
permit such filing) and provide the Trustee and Noteholders with the annual
reports and such information, documents and other reports which are specified in
Sections 13 and 15(d) of the Exchange Act. The Issuer also will comply with the
other provisions of TIA Section 314(a).
SECTION 4.3. Limitation on Indebtedness. (a) The Issuer will not
Incur, directly or indirectly, any Indebtedness unless, on the date of such
Incurrence and after giving effect to such Incurrence and the application of the
proceeds therefrom, the Indebtedness to Adjusted EBITDA Ratio of the Issuer
would be less than 7.00:1. Accrual of interest, accretion or amortization of
original issue discount and the payment of interest in the form of additional
Indebtedness will not be deemed to be an Incurrence of Indebtedness for purposes
of this covenant.
(b) Notwithstanding the foregoing paragraph (a) and regardless of the
amount of outstanding Indebtedness of the Issuer, the Issuer may Incur any or
all of the following Indebtedness: (i) Indebtedness of the Issuer owing to and
held by any Restricted Subsidiary; provided, however, that any subsequent
issuance or transfer of any Capital Stock or any other event which results in
any such Restricted Subsidiary ceasing to be a Restricted Subsidiary or any
subsequent transfer of any such Indebtedness (except to another Restricted
Subsidiary)
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will be deemed, in each case, to constitute the Incurrence of such Indebtedness
by the Issuer; (ii) Indebtedness represented by the Notes and the Exchange
Notes; (iii) Indebtedness of the Issuer (other than the Indebtedness described
in clauses (i) or (ii) above) outstanding on the Issue Date; (iv) Indebtedness
(including Capitalized Lease Obligations) of the Issuer Incurred to finance the
acquisition, construction or improvement of fixed or capital assets in an
aggregate principal amount at any one time outstanding not to exceed the greater
of (x) $10.0 million and (y) an amount equal to 3% of the Issuer's Consolidated
Tangible Assets (together with the amount of any Indebtedness then outstanding
and Incurred pursuant to clause (b)(vi) of Section 4.4); provided, that such
Indebtedness is Incurred within 180 days after the date of such acquisition,
construction or improvement and does not exceed the fair market value of such
acquired, constructed or improved assets, as determined in good faith by the
Board of Directors of the Issuer; (v) Refinancing Indebtedness Incurred in
respect of any Indebtedness Incurred pursuant to paragraph (a) or pursuant to
clause (ii), (iii) or this clause (v); (vi) Indebtedness (A) in respect of
performance bonds, bankers' acceptances, letters of credit and surety or appeal
bonds provided by the Issuer in the ordinary course of its business and which do
not secure other Indebtedness and (B) under Currency Agreements and Interest
Rate Agreements Incurred which, at the time of Incurrence, is in the ordinary
course of business; provided, however, that, in the case of Currency Agreements
and Interest Rate Agreements, such Currency Agreements and Interest Rate
Agreements are directly related to Indebtedness permitted to be Incurred by the
Issuer pursuant to this Indenture; (vii) Indebtedness represented by Guarantees
by the Issuer of Indebtedness otherwise permitted to be Incurred pursuant to
this Indenture; (viii) Indebtedness of any other Person existing at the time
such other Person is merged with or into the Issuer outstanding on or prior to
the date on which such Person was merged with or into the Issuer (other than
Indebtedness Incurred in connection with, or to provide all or any portion of
the funds or credit support utilized to consummate, the transaction or series of
related transactions pursuant to which such Person was merged with or into the
Issuer); provided, however, that on the date of such merger and after giving
effect thereto either (x) the Issuer would be permitted to incur at least $1.00
of additional Indebtedness pursuant to paragraph (a) of this Section 4.3 or (y)
the Issuer would have an Indebtedness to Adjusted EBITDA Ratio immediately after
giving effect to such merger no greater than the Indebtedness to Adjusted EBITDA
Ratio immediately prior to such merger; (ix) Indebtedness Incurred by the
Issuer's Subsidiaries not otherwise prohibited by the terms of this Indenture;
(x) the Incurrence by the Issuer of Indebtedness not to exceed, at any one time
outstanding (together with the amount of any Indebtedness then outstanding and
Incurred pursuant to clause (b)(ix) of Section 4.4), 1.5 times the sum of 100%
of the aggregate Net Cash Proceeds and 50% of the non-cash proceeds received by
the Issuer from the issue or sale of Capital Stock (other than Disqualified
Stock) subsequent to the first day of the quarter in which the Issue Date occurs
(other than an issuance or sale to a Subsidiary of the Issuer and other than an
issuance or sale to an employee stock ownership plan or to a trust established
by the Issuer or any of its Restricted Subsidiaries), less the aggregate amount
of such Net Cash
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Proceeds used to make Restricted Payments pursuant to clause 3(B) of paragraph
(a) of Section 4.5 or applied pursuant to clause (i)(B) of paragraph (b) of
Section 4.5; and (xi) other Indebtedness in an aggregate principal amount
outstanding at any time not to exceed $15.0 million (together with the amount of
any Indebtedness and Preferred Stock then outstanding and Incurred pursuant to
clause (b)(x) of Section 4.4).
(c) Notwithstanding the foregoing, the Issuer shall not Incur any
Indebtedness pursuant to the foregoing paragraph (b) of this Section 4.3 if the
proceeds thereof are used, directly or indirectly, to Refinance any Subordinated
Obligations unless such new Indebtedness shall (i) be subordinated to the Notes
to at least the same extent as such Subordinated Obligations being Refinanced
and (ii) have a Stated Maturity that is no earlier than the earlier of the
Stated Maturity of the Notes or the Stated Maturity of the Subordinated
Obligations being Refinanced.
(d) For purposes of determining compliance with this Section 4.3, (i)
in the event that an item of Indebtedness meets the criteria of more than one of
the types of Indebtedness described above, the Issuer, in its sole discretion,
will classify such item of Indebtedness and only be required to include the
amount and type of such Indebtedness in one of the above clauses of this Section
4.3 and (ii) an item of Indebtedness may be divided and classified in more than
one of the types of Indebtedness described in this Section 4.3.
SECTION 4.4. Limitation on Indebtedness and Preferred Stock of
Restricted Subsidiaries. (a) The Issuer shall not permit any Restricted
Subsidiary to Incur, directly or indirectly, any Indebtedness or Preferred Stock
unless, on the date of such Incurrence and after giving effect to such
Incurrence and the application of the net proceeds therefrom, the Indebtedness
to Adjusted EBITDA Ratio of the Issuer would be less than 7.00:1. Accrual of
interest, accretion or amortization of original issue discount and the payment
of interest in the form of additional Indebtedness will not be deemed to be an
Incurrence of Indebtedness for purposes of this covenant.
(b) Notwithstanding the foregoing paragraph (a) and regardless of the
amount of outstanding Indebtedness of the Restricted Subsidiaries, any
Restricted Subsidiary may Incur any or all of the following Indebtedness: (i)
Indebtedness Incurred under Credit Facilities in an aggregate principal amount
outstanding at any time not to exceed the product of (x) $200,000 and (y) the
number of Completed Towers on the date of such Incurrence; (ii) Indebtedness or
Preferred Stock of a Restricted Subsidiary issued to and held by the Issuer or a
Restricted Subsidiary; provided, however, that any subsequent issuance or
transfer of any Capital Stock which results in any such Restricted Subsidiary
ceasing to be a Restricted Subsidiary or any subsequent transfer of such
Indebtedness or Preferred Stock (other than to the Company or a Restricted
Subsidiary) shall be deemed, in each case, to constitute the Incurrence of such
Indebtedness or Preferred Stock by the issuer thereof; (iii) Indebtedness or
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Preferred Stock of a Restricted Subsidiary Incurred and outstanding on or prior
to the date on which such Restricted Subsidiary was acquired by the Issuer and
Indebtedness or Preferred Stock of an entity merged into a Restricted Subsidiary
(other than, in either case, Indebtedness or Preferred Stock Incurred in
connection with, or to provide all or any portion of the funds or credit support
utilized to consummate, the transaction or series of related transactions
pursuant to which such Restricted Subsidiary became a Restricted Subsidiary or
was acquired by the Issuer or such entity was merged into such Restricted
Subsidiary); provided, however, that on the date of such acquisition or merger
and after giving effect thereto, either (x) the Issuer would have been permitted
to incur at least $1.00 of additional Indebtedness pursuant to paragraph (a) of
Section 4.3 or (y) the Issuer would have had an Indebtedness to Adjusted EBITDA
Ratio immediately after giving effect to such merger or acquisition no greater
than the Indebtedness to Adjusted EBITDA Ratio immediately prior to such
transaction; (iv) Indebtedness or Preferred Stock outstanding on the Issue Date
(other than Indebtedness described in clauses (i), (ii) or (iii) of this
paragraph); (v) Refinancing Indebtedness Incurred in respect of Indebtedness or
Preferred Stock referred to in clauses (iii) or (iv) of this paragraph or this
clause (v); provided, however, that to the extent such Refinancing Indebtedness
directly or indirectly Refinances Indebtedness or Preferred Stock of a
Subsidiary described in clause (iii), such Refinancing Indebtedness shall be
Incurred only by such Subsidiary; (vi) Indebtedness (including Capitalized Lease
Obligations) Incurred to finance the acquisition, construction or improvement of
fixed or capital assets in an aggregate principal amount at any one time
outstanding not to exceed the greater of (x) $10.0 million and (y) an amount
equal to 3% of the Issuer's Consolidated Tangible Assets (together with the
amount of any Indebtedness then outstanding and Incurred pursuant to clause
(b)(iv) of Section 4.3); provided, that such Indebtedness is Incurred within 180
days after the date of such acquisition, construction or improvement and does
not exceed the fair market value of such acquired, constructed or improved
assets, as determined in good faith by the Board of Directors of the Issuer;
(vii) Indebtedness (A) in respect of performance bonds, bankers' acceptances,
letters of credit and surety or appeal bonds provided in the ordinary course of
its business and which do not secure other Indebtedness and (B) under Currency
Agreements and Interest Rate Agreements Incurred which, at the time of
Incurrence, is in the ordinary course of business; provided, however, that, in
the case of Currency Agreements and Interest Rate Agreements, such Currency
Agreements and Interest Rate Agreements are directly related to Indebtedness
permitted to be Incurred pursuant to this Indenture; (viii) Indebtedness
represented by Guarantees of Indebtedness otherwise permitted to be Incurred
pursuant to this Indenture; (ix) the Incurrence of Indebtedness not to exceed,
at any one time outstanding (together with the amount of any Indebtedness then
outstanding and Incurred pursuant to clause (b)(x) of Section 4.3), 1.5 times
the sum of 100% of the aggregate Net Cash Proceeds and 50% of the non-cash
proceeds received by the Issuer from the issue or sale of Capital Stock (other
than Disqualified Stock) subsequent to the first day of the quarter in which the
Issue Date occurs (other than an issuance or sale to a Subsidiary of the Issuer
and other than
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an issuance or sale to an employee stock ownership plan or to a trust
established by the Issuer or any of its Restricted Subsidiaries), less the
amount of such Net Cash Proceeds used to make Restricted Payments pursuant
clause 3(B) of paragraph (a) of Section 4.5 or applied pursuant to clause (i)(B)
of paragraph (b) of Section 4.5; and (x) other Indebtedness and Preferred Stock
in an aggregate principal and/or liquidation amount outstanding at any time not
to exceed $15.0 million (less the amount of any Indebtedness then outstanding
and Incurred pursuant to clause (b)(xi) of Section 4.3).
(c) For purposes of determining compliance with this Section 4.4, (i)
in the event that an item of Indebtedness meets the criteria of more than one of
the types of Indebtedness described above, the Issuer, in its sole discretion,
will classify such item of Indebtedness and only be required to include the
amount and type of such Indebtedness in one of the above clauses of this Section
4.4 and (ii) an item of Indebtedness may be divided and classified in more than
one of the types of Indebtedness described in this Section 4.4.
The Issuer will not permit any Unrestricted Subsidiary to Incur any
Indebtedness other than Non-Recourse Debt.
SECTION 4.5. Limitation on Restricted Payments. (a) The Issuer will
not, and will not permit any Restricted Subsidiary, directly or indirectly, to
make any Restricted Payment if at the time the Issuer or such Restricted
Subsidiary makes such Restricted Payment: (1) a Default or Event of Default will
have occurred and be continuing (or would result therefrom); (2) the Issuer
could not Incur at least $1.00 of additional Indebtedness under paragraph (a) of
Section 4.3; or (3) the aggregate amount of such Restricted Payment and all
other Restricted Payments (the amount so expended, if other than in cash, to be
determined in good faith by the Board of Directors of the Issuer, whose
determination will be evidenced by a resolution of such Board of Directors)
declared or made subsequent to the Issue Date would exceed the sum of: (A) (x)
the aggregate EBITDA (or, in the event such EBITDA shall be a deficit, minus
such deficit) accrued subsequent to the Issue Date to the most recent date for
which financial information is available to the Issuer, taken as one accounting
period, (y) less 1.4 times Consolidated Interest Expense for the same period;
(B) (x) 100% of the aggregate Net Cash Proceeds (less the aggregate amount of
such Net Cash Proceeds used to Incur Indebtedness pursuant to clause (b)(x) of
Section 4.3 and clause (b)(ix) of Section 4.4) and (y) 70% of the GAAP purchase
accounting valuation of Qualified Proceeds (with each such valuation calculated
as of the sale date of the Capital Stock received as consideration therefor), in
each case received by the Issuer from the issue or sale of Capital Stock (other
than Disqualified Stock) subsequent to the first day of the quarter in which the
Issue Date occurs (other than an issuance or sale to a Subsidiary of the Issuer
and other than an issuance or sale to an employee stock ownership plan or to a
trust established by the Issuer or any of its Restricted Subsidiaries); (C) the
amount by which Indebtedness of the Issuer is reduced on the Issuer's balance
sheet upon the conversion or exchange (other than by a Restricted Subsidiary)
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subsequent to the Issue Date of any Indebtedness of the Issuer convertible or
exchangeable for Capital Stock (other than Disqualified Stock) of the Issuer
(less the amount of any cash, or the fair value of any other property,
distributed by the Issuer upon such conversion or exchange); (D) an amount equal
to the sum of (i) the net reduction in Investments in Unrestricted Subsidiaries
resulting from dividends, repayments of loans or advances or other transfers of
assets to the Issuer or any Restricted Subsidiary from Unrestricted Subsidiaries
and (ii) the portion (proportionate to the Issuer's equity interest in such
Subsidiary) of the fair market value of the net assets of an Unrestricted
Subsidiary at the time such Unrestricted Subsidiary is designated a Restricted
Subsidiary; provided, that the foregoing sum shall not exceed, in the case of
any Unrestricted Subsidiary, the amount of Investments previously made by the
Issuer or any Restricted Subsidiary in such Unrestricted Subsidiary, which
amount was included in the calculation of the amount of Restricted Payments; (E)
dividends and distributions received by the Issuer subsequent to the Issue Date
from Unrestricted Subsidiaries, to the extent such dividends and distributions
are not otherwise included in calculating EBITDA; and (F) Net Cash Proceeds
received by the Issuer subsequent to the Issue Date from Investments that are
not Permitted Investments, to the extent not otherwise included in calculating
EBITDA.
(b) The provisions of the foregoing paragraph (a) of this Section 4.5
will not prohibit: (i) any purchase, redemption, defeasance or other acquisition
of Capital Stock of the Issuer or Subordinated Obligations made by exchange for,
or out of the net proceeds of the substantially concurrent sale of, Capital
Stock of the Issuer (other than Disqualified Stock and other than Capital Stock
issued or sold to a Subsidiary of the Issuer or an employee stock ownership plan
or to a trust established by the Issuer or any of its Subsidiaries); provided,
however, that (A) such purchase, redemption, defeasance or other acquisition
will be excluded in the calculation of the amount of Restricted Payments and (B)
to the extent applied toward any such purchase, redemption, defeasance or other
acquisition, the Net Cash Proceeds from such sale will be excluded from clause
(3)(B) of paragraph (a) of this Section 4.5, clause (b)(x) of Section 4.3 and
clause (b)(ix) of Section 4.4; (ii) any purchase, redemption, defeasance or
other acquisition of Subordinated Obligations made by exchange for, or out of
the net proceeds of the substantially concurrent sale of, Subordinated
Obligations of the Issuer; provided, however, that (A) the principal amount of
such new Indebtedness does not exceed the principal amount of the Subordinated
Obligations being so redeemed, repurchased, acquired or retired for value (plus
the amount of any premium required to be paid under the terms of the instrument
governing the Subordinated Obligations being so redeemed, repurchased, acquired
or retired), (B) such new Indebtedness is subordinated to the Notes at least to
the same extent as such Subordinated Obligations so purchased, exchanged,
redeemed, repurchased, acquired or retired for value, (C) such new Indebtedness
has a final scheduled maturity date later than the earlier of the final
scheduled maturity date of the Subordinated Obligations being so redeemed,
repurchased, acquired or retired and the final scheduled maturity date of the
Notes and (D) such new Indebtedness has an Average Life equal to or
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greater than the Average Life of the Notes; provided further, however, that such
purchase, redemption, defeasance or other acquisition will be excluded in the
calculation of the amount of Restricted Payments; (iii) dividends paid within 60
days after the date of declaration thereof if at such date of declaration such
dividend would have complied with this covenant; provided, however, that the
amount of such dividend will be included in the calculation of the amount of
Restricted Payments; and (iv) purchases of outstanding shares of the Issuer's
capital stock from former employees in an amount not to exceed $5.0 million in
the aggregate; provided, however, that such purchases will be included in the
calculation of the amount of Restricted Payments; provided, however, that, at
the time of, and after giving effect to, any Restricted Payment permitted by
clauses (i), (ii) and (iv), no Default or Event of Default shall have occurred
and be continuing.
SECTION 4.6. Limitation on Restrictions on Distributions from
Restricted Subsidiaries. The Issuer will not, and will not permit any Restricted
Subsidiary to, create or otherwise cause or permit to exist or become effective
any consensual encumbrance or restriction on the ability of any Restricted
Subsidiary to (i) pay dividends or make any other distributions on its Capital
Stock to the Issuer or a Restricted Subsidiary or pay any Indebtedness or other
obligation owed to the Issuer, (ii) make any loans or advances to the Issuer or
(iii) transfer any of its property or assets to the Issuer or any Restricted
Subsidiary, except: (1) any encumbrance or restriction pursuant to a Credit
Facility or any agreement in effect at or entered into on the Issue Date; (2)
any encumbrance or restriction with respect to a Restricted Subsidiary pursuant
to an agreement relating to any Indebtedness Incurred by such Restricted
Subsidiary on or prior to the date on which such Restricted Subsidiary was
acquired by the Issuer or a Restricted Subsidiary (other than Indebtedness
Incurred as consideration in, or to provide all or any portion of the funds or
credit support utilized to consummate the transaction or series of related
transactions pursuant to which such Restricted Subsidiary became a Subsidiary or
was acquired by the Issuer or a Restricted Subsidiary) and outstanding on such
date; (3) any encumbrance or restriction pursuant to an agreement effecting a
Refinancing of Indebtedness Incurred pursuant to an agreement referred to in
clause (1) or (2) of this Section 4.6 or contained in any amendment to an
agreement referred to in clause (1) or (2) of this Section 4.6; provided,
however, that the encumbrances and restrictions with respect to such Restricted
Subsidiary contained in any such refinancing agreement or amendment taken as a
whole are no less favorable to the Noteholders than the encumbrances and
restrictions with respect to such Restricted Subsidiary contained in such
predecessor agreements as determined in good faith by the Board of Directors of
the Issuer; (4) in the case of clause (iii), any encumbrance or restriction that
restricts in a customary manner the subletting, assignment or transfer of any
property or asset that is subject to a lease, license or other contract; (5) in
the case of clause (iii), contained in security agreements or mortgages securing
Indebtedness of a Restricted Subsidiary to the extent such encumbrance or
restrictions restrict the transfer of the property subject to such security
agreements or
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mortgages; (6) any restriction with respect to a Restricted Subsidiary imposed
pursuant to an agreement entered into for the sale or disposition of all or
substantially all the Capital Stock or assets of such Restricted Subsidiary
pending the closing of such sale or disposition; and (7) customary provisions
with respect to the disposition or distribution of assets or property in joint
venture and other similar agreements.
SECTION 4.7. Limitation on Sale of Assets and Subsidiary Stock. (a)
The Issuer will not, and will not permit any Restricted Subsidiary to, directly
or indirectly, consummate any Asset Disposition unless (i) the Issuer or such
Restricted Subsidiary receives consideration at the time of such Asset
Disposition at least equal to the fair market value (including as to the value
of all non cash consideration), as determined in good faith by the Board of
Directors of the Issuer of the shares and assets subject to such Asset
Disposition and (ii) except in the case of a Tower Asset Exchange, at least 75%
of the consideration thereof received by the Issuer or such Restricted
Subsidiary is in the form of cash or cash equivalents.
Within 365 days after the receipt of any Net Available Cash from an
Asset Disposition, the Issuer or the applicable Restricted Subsidiary may apply
such Net Available Cash to: (A) prepay, repay, redeem or purchase Indebtedness
(other than Disqualified Stock) of a Wholly Owned Subsidiary (provided, that the
applicable Restricted Subsidiary also may prepay, repay, redeem or purchase its
own outstanding Indebtedness) or Senior Indebtedness (in each case other than
Indebtedness owed to the Issuer or an Affiliate of the Issuer); (B) make an
offer with respect to the 2008 Notes to the extent required in the indenture
governing the 2008 Notes; (C) acquire all or substantially all of the assets of
an entity engaged in a Permitted Business; (D) acquire Voting Stock of an entity
engaged in a Permitted Business from a Person that is not a Subsidiary of the
Issuer; provided, that (x) after giving effect thereto, the Issuer or its
Restricted Subsidiary owns a majority of such Voting Stock and (y) such
acquisition is otherwise made in accordance with this Indenture, including,
without limitation, Section 4.5; or (E) make a capital expenditure or acquire
other long-term assets that are used or useful in a Permitted Business. To the
extent of the balance of such Net Available Cash after application in accordance
with clauses (A), (B), (C), (D) or (E), the Issuer shall make an Offer (as
defined in Section 4.7(b)) to Holders of the Notes to purchase Notes pursuant to
and subject to the conditions set forth in paragraph (b) of this Section 4.7.
Notwithstanding the foregoing provisions, the Issuer and its
Restricted Subsidiaries shall not be required to apply any Net Available Cash in
accordance herewith except to the extent that the aggregate Net Available Cash
from all Asset Dispositions which are not applied in accordance with this
covenant exceeds $10.0 million. Pending application of Net Available Cash
pursuant to this covenant, such Net Available Cash shall be invested in
Permitted Investments.
For the purposes of this Section 4.7(a), the following are deemed to
be cash:
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(x) the assumption by the transferee of Indebtedness of the Issuer (other than
Disqualified Stock of the Issuer and other than Indebtedness that is
subordinated to the Notes) or Indebtedness of any Restricted Subsidiary and the
release of the Issuer or such Restricted Subsidiary from all liability on such
Indebtedness in connection with such Asset Disposition; (y) securities received
by the Issuer or any Restricted Subsidiary from the transferee that are
converted by the Issuer or such Restricted Subsidiary into cash within 20 days
of the applicable Asset Disposition (to the extent of the cash received); and
(z) any liabilities (as shown on the Issuer's or such Restricted Subsidiary's
most recent balance sheet) of the Issuer or any Restricted Subsidiary (other
than contingent liabilities and liabilities that are by their terms subordinated
to the Notes or any guarantee thereof) that are assumed by the transferee of any
such assets pursuant to a customary novation agreement that releases the Issuer
or any such Restricted Subsidiary from further liability.
(b) In the event of an Asset Disposition that requires the purchase
of Notes pursuant to paragraph (a) of this Section 4.7, the Issuer will be
required to purchase Notes tendered pursuant to an offer by the Issuer for the
Notes (the "Offer") at a purchase price of 100% of their Accreted Value as of
the date of purchase (without premium) plus accrued and unpaid interest to the
date of purchase in accordance with the procedures (including prorating in the
event of oversubscription) set forth in this Indenture. If the aggregate
purchase price of Notes tendered pursuant to the Offer is less than the Net
Available Cash allotted to the purchase of the Notes, the Issuer may use any
remaining Net Available Cash for general corporate purposes not otherwise
prohibited by this Indenture. If the aggregate purchase price of Notes tendered
pursuant to the Offer is greater than the Net Available Cash allotted to the
purchase of the Notes, the Trustee will select the Notes to be purchased on the
basis set forth in paragraph (c) of this Section 4.7. Upon completion of any
required Offer to the holders of the Notes, the amount of Net Available Cash
will be reset at zero. The Issuer shall not be required to make an Offer for
Notes pursuant to this Section 4.7 if the Net Available Cash available therefor
(after application of the proceeds as provided in the second paragraph of
Section 4.7(a)) are less than $10.0 million for all Asset Dispositions (which
lesser amounts shall be carried forward for purposes of determining whether an
Offer is required with respect to the Net Available Cash from any subsequent
Asset Disposition).
(c) (1) Promptly, and in any event within 30 days after the Issuer
becomes obligated to make an Offer, the Issuer shall be obligated to deliver to
the Trustee and send, by first-class mail to each Holder, at the address
appearing in the security register, a written notice stating that the Holder may
elect to have his Notes purchased by the Issuer either in whole or in part
(subject to prorationing as hereinafter described in the event the Offer is
oversubscribed) in integral multiples of $1,000 of principal amount at maturity,
at the applicable purchase price. The notice shall specify a purchase date not
less than 30 days nor more than 60 days after the date of such notice (the
"Purchase Date") and shall contain all
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instructions and materials necessary to tender Notes pursuant to the Offer.
(2) Not later than the date upon which written notice of an Offer is
delivered to the Trustee as provided below, the Issuer shall deliver to the
Trustee an Officer's Certificate as to (i) the amount of the Offer (the "Offer
Amount"), (ii) the allocation of the Net Available Cash from the Asset
Dispositions pursuant to which such Offer is being made and (iii) the compliance
of such allocation with the provisions of Section 4.7(a). Upon the expiration of
the period for which the Offer remains open (the "Offer Period"), the Issuer
shall deliver to the Trustee for cancellation the Notes or portions thereof
which have been properly tendered to and are to be accepted by the Issuer. Not
later than 11:00 a.m. (New York City time) on the Purchase Date, the Issuer
shall irrevocably deposit with the Trustee or with a paying agent (or, if the
Issuer is acting as Paying Agent, segregate and hold in trust) an amount in cash
sufficient to pay the Offer Amount for all Notes properly tendered to, not
withdrawn from and accepted by the Issuer. The Trustee shall, on the Purchase
Date, mail or deliver payment to each tendering Holder in the amount of the
purchase price.
(3) Holders electing to have a Note purchased will be required to
surrender the Note, together with all necessary endorsements and other
appropriate materials duly completed, to the Issuer at the address specified in
the notice at least three Business Days prior to the Purchase Date. Holders will
be entitled to withdraw their election in whole or in part if the Trustee or the
Issuer receives not later than one Business Day prior to the Purchase Date, a
facsimile transmission or letter setting forth the name of the Holder, the
principal amount of the Note (which shall be $1,000 in principal amount at
maturity or an integral multiple thereof) which was delivered for purchase by
the Holder, the aggregate principal amount at maturity of such Note (if any)
that remains subject to the original notice of the Offer and that has been or
will be delivered for purchase by the Issuer and a statement that such Holder is
withdrawing his election to have such Note purchased. If at the expiration of
the Offer Period the aggregate principal amount at maturity of Notes surrendered
by Holders exceeds the Offer Amount, the Trustee shall select the Notes to be
purchased in accordance with the provisions of Section 3.2 (with such
adjustments as may be deemed appropriate by the Trustee so that only securities
in denominations of $1,000 principal amount at maturity, or integral multiples
thereof, shall be purchased). Holders whose Notes are purchased only in part
will be issued new Notes equal in principal amount at maturity to the
unpurchased portion of the Notes surrendered.
(4) A Note shall be deemed to have been accepted for purchase at the
time the Trustee, directly or through an agent, mails or delivers payment
therefor to the surrendering Holder.
(d) The Issuer will comply, to the extent applicable, with the
requirements of Section 14(e) of the Exchange Act and any other securities laws
or regulations in connection
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with the repurchase of Notes pursuant to this covenant. To the extent that the
provisions of any securities laws or regulations conflict with provisions of
this covenant, the Issuer will comply with the applicable securities laws and
regulations and will not be deemed to have breached its obligations under this
covenant by virtue thereof.
(e) The provisions of this Section 4.7 shall not apply to any
transaction that is permitted under the provisions of Section 5.1.
SECTION 4.8. Limitation on Transactions with Affiliates. (a) The
Issuer will not, and will not permit any Restricted Subsidiary to, directly or
indirectly, enter into or conduct any transaction or series of transactions
(including the purchase, sale, lease or exchange of any property, employee
compensation arrangements or the rendering of any service) with any Affiliate of
the Issuer (an "Affiliate Transaction") unless (i) the terms of such
transaction, taken as a whole, are no less favorable to the Issuer or such
Restricted Subsidiary, as the case may be, than those that could be obtained at
the time of such transaction in arm's-length dealings with a Person who is not
such an Affiliate; (ii) in the event such Affiliate Transaction involves an
aggregate amount in excess of $5.0 million, the terms of such transaction are
set forth in writing and shall have been approved by a majority of the members
of the Board of Directors having no personal stake in such Affiliate Transaction
(and such majority determines that such Affiliate Transaction satisfies the
criteria in clause (i) above) and (iii) in the event such Affiliate Transaction
involves an aggregate amount in excess of $10.0 million, the Issuer has received
a written opinion from a nationally recognized independent investment banking
firm that such Affiliate Transaction is fair to the Issuer and its Restricted
Subsidiaries from a financial point of view.
(b) The provisions of paragraph (a) of this Section 4.8 shall not
prohibit (i) any Restricted Payment permitted to be made pursuant to Section
4.5, (ii) any issuance of securities, or other payments, awards or grants in
cash, securities or otherwise pursuant to, or the funding of, employment
arrangements, stock options and stock ownership plans approved by the Board of
Directors, or any arrangements relating thereto, (iii) the grant of a stock
options or similar rights to employees and directors of the Issuer pursuant to
plans approved by the Board of Directors, (iv) loans or advances to employees in
the ordinary course of business in accordance with the past practices of the
Issuer or its Restricted Subsidiaries, but in any event not to exceed $5.0
million in the aggregate outstanding at any one time, (v) the payment of
reasonable fees to directors of the Issuer and its Restricted Subsidiaries who
are not employees of the Issuer or its Restricted Subsidiaries, (vi) any
transaction between the Issuer and a Restricted Subsidiary or between Restricted
Subsidiaries, (vii) the issuance or sale of any Capital Stock (other than
Disqualified Stock) of the Issuer, (viii) any transaction consummated pursuant
to the terms of any agreement described in the Offering Memorandum to which the
Issuer is a party, in each case as such agreement is in effect on the Issue Date
and giving effect to any subsequent supplements, amendments, modifications or
alterations
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thereof that are approved by the disinterested members of the Issuer's Board of
Directors, (ix) any transaction in the ordinary course of business between the
Issuer or any Restricted Subsidiary and any Affiliate of the Issuer relating to
the acquisition, management, construction, leasing or licensing of Tower Assets,
provided, however, that such transaction is on terms that are no less favorable,
taken as a whole, to the Issuer or the relevant Restricted Subsidiary than those
that could have been obtained in a comparable transaction by the Issuer or such
Restricted Subsidiary with an unrelated Person or is otherwise on terms that,
taken as a whole, the Issuer has determined to be fair to the Issuer or the
relevant Restricted Subsidiary) and (x) any transaction between the Issuer or
any of its Restricted Subsidiaries and any of its Affiliates involving ordinary
course investment banking, commercial banking or related activities.
SECTION 4.9. Change of Control. (a) Upon the occurrence of a Change
of Control, each Holder shall have the right to require that the Issuer
repurchase all or any part of such Holder's Notes at a purchase price in cash
equal to 101% of the Accreted Value thereof as of the date of repurchase, plus
accrued and unpaid interest, if any, to the date of repurchase, in accordance
with the terms contemplated in Section 4.9(b).
(b) (i) Within 30 days following any Change of Control, the Issuer
shall mail a notice to each Holder at its registered address with a copy to the
Trustee stating:
(1) that a Change of Control has occurred and that such Holder has
the right to require the Issuer to purchase such Holder's Notes in
denominations of $1,000 principal amount at maturity or any integral
multiple thereof at a purchase price in cash equal to 101% of the Accreted
Value thereof as of the date of repurchase, plus accrued and unpaid
interest, if any, to the date of repurchase;
(2) the circumstances and relevant facts regarding such Change of
Control (including information with respect to pro forma historical
income, cash flow and capitalization after giving effect to such Change of
Control);
(3) the repurchase date (which shall be no earlier than 30 days nor
later than 60 days from the date such notice is mailed); and
(4) the instructions determined by the Issuer, consistent with this
Section 4.9, that a Holder must follow in order to have its Notes
purchased by the Issuer.
(c) Holders electing to have a Note purchased will be required to
surrender the Note, together with all necessary endorsements and other
appropriate materials duly completed, to the Issuer at the address specified in
the notice at least three Business Days prior to the purchase date. Holders will
be entitled to withdraw their election if the Trustee or
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the Issuer receives not later than one Business Day prior to the purchase date,
a facsimile transmission or letter setting forth the name of the Holder, the
principal amount at maturity of the Note which was delivered for purchase by the
Holder as to which such notice of withdrawal is being submitted and a statement
that such Holder is withdrawing his election to have such Note purchased.
(d) On the purchase date, all Notes purchased by the Issuer under
this Section 4.9 shall be delivered to the Trustee for cancellation, and the
Issuer shall pay the purchase price, including premium, if any, plus accrued and
unpaid interest, if any, to the Holders entitled thereto.
(e) The Issuer will comply, to the extent applicable, with the
requirements of Section 14(e) of the Exchange Act and any other securities laws
or regulations in connection with the repurchase of Notes pursuant to this
Section 4.9. To the extent that the provisions of any securities laws or
regulations conflict with provisions of this Section 4.9, the Issuer will comply
with the applicable securities laws and regulations and will not be deemed to
have breached its obligations under this Section 4.9 by virtue thereof.
(f) The Issuer will not be required to make an offer pursuant to this
Section 4.9 upon a Change of Control if a third party, in the manner, at the
times and otherwise in compliance with the requirements set forth in this
Indenture applicable to a Change of Control made by the Issuer, makes an offer
to purchase and purchases all Notes validly tendered and not withdrawn under
such offer.
(g) Notwithstanding the occurrence of a Change of Control, the Issuer
shall not be obligated to repurchase the Notes or otherwise comply with this
Section 4.9 if the Issuer has irrevocably elected to redeem all the Notes in
accordance with Article III; provided that the Issuer does not default in its
redemption obligations pursuant to such election.
SECTION 4.10. Limitation on Sale or Issuance of Capital Stock of
Restricted Subsidiaries. The Issuer (i) will not, and will not permit any
Restricted Subsidiary of the Issuer to, transfer, convey, sell, lease or
otherwise dispose of any Capital Stock of any Restricted Subsidiary to any
Person (other than to the Issuer or a Wholly Owned Subsidiary), unless (a) such
transfer, conveyance, sale, lease or other disposition is of (x) all of the
Capital Stock of such Restricted Subsidiary or (y) a majority of the issued and
outstanding Capital Stock of such Restricted Subsidiary; provided, however, that
the Issuer's minority equity interest in such Person after giving effect to any
such disposition shall be deemed to constitute an Investment by the Issuer in
such Person; and (b) the net cash proceeds from such transfer, conveyance, sale,
lease or other disposition are applied in accordance with Section 4.7 and (ii)
will not permit any Restricted Subsidiary to issue any of its Capital Stock
(other than, to the extent necessary or mandated by applicable law, shares of
its Capital Stock constituting
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directors' qualifying shares or the ownership by foreign nationals of Capital
Stock of any Restricted Subsidiary) to any Person other than to the Issuer or a
Wholly Owned Subsidiary.
SECTION 4.11. Limitation on Liens. The Issuer will not, and will not
permit any Restricted Subsidiary to, directly or indirectly, create or permit to
exist any Lien on any of its property or assets (including Capital Stock),
whether owned on the Issue Date or thereafter acquired, securing any obligation,
other than Permitted Liens, unless contemporaneously therewith effective
provision is made to secure the Notes equally and ratably with (or on a senior
basis to, in the case of Subordinated Obligations) such obligation for so long
as such obligation is so secured.
SECTION 4.12. Limitation on Sale/Leaseback Transactions. The Issuer
will not, and will not permit any Restricted Subsidiary to, enter into any
Sale/Leaseback Transaction with respect to any property unless (i) the Issuer or
such Restricted Subsidiary would be entitled to (A) Incur Indebtedness in an
amount equal to the Attributable Indebtedness with respect to such
Sale/Leaseback Transaction pursuant to Section 4.3 and (B) create a Lien on such
property securing such Attributable Indebtedness without equally and ratably
securing the Notes pursuant to Section 4.11, (ii) the net cash proceeds received
by the Issuer or any Restricted Subsidiary in connection with such
Sale/Leaseback Transaction are at least equal to the fair value (as determined
in good faith by the Board of Directors of the Issuer) of such property and
(iii) the transfer of such property is permitted by, and the Issuer or such
Restricted Subsidiary applies the proceeds of such transaction in compliance
with, Section 4.7.
SECTION 4.13. Compliance with Laws. The Issuer shall comply, and
shall cause each of its Restricted Subsidiaries to comply, with all applicable
statutes, rules, regulations, orders and restrictions of the United States of
America, all states and municipalities thereof, and of any governmental
department, commission, board, regulatory authority, bureau, agency and
instrumentality of the foregoing, in respect of the conduct of their respective
businesses and the ownership of their respective properties, except for such
noncompliances as are not in the aggregate reasonably likely to have a material
adverse effect on the financial condition or results of operations of the Issuer
and its Subsidiaries, taken as a whole.
SECTION 4.14. Compliance Certificate. The Issuer shall deliver to the
Trustee within 120 days after the end of each fiscal year of the Issuer an
Officer's Certificate signed by the chief executive officer, the chief financial
officer or the chief accounting officer stating that in the course of the
performance by the signer of his duties as an Officer of the Issuer he would
normally have knowledge of any Default or Event of Default and whether or not
the signers know of any Default or Event of Default that occurred during such
period. If he does, the certificate shall describe the Default or Event of
Default, its status and what
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action the Issuer is taking or proposes to take with respect thereto. The Issuer
also shall comply with TIA Section 314(a)(4).
SECTION 4.15. Further Instruments and Acts. Upon reasonable request
of the Trustee, the Issuer will execute and deliver such further instruments and
do such further acts as may be reasonably necessary or proper to carry out more
effectively the purpose of this Indenture.
SECTION 4.16. Maintenance of Office or Agency. The Issuer shall
maintain the office or agency required under Section 2.3. The Issuer shall give
prior written notice to the Trustee of the location, and any change in the
location, of such office or agency. If at any time the Issuer shall fail to
maintain any such required office or agency or shall fail to furnish the Trustee
with the address thereof, such presentations, surrenders, notices and demands
may be made or served at the address of the Trustee set forth in Section 10.2.
SECTION 4.17. Corporate Existence. Except as otherwise permitted by
Article V and Section 4.9, the Issuer shall do or cause to be done, at its own
cost and expense, all things necessary to preserve and keep in full force and
effect its corporate existence and the corporate, partnership or limited
liability company existence of each of its Significant Subsidiaries in
accordance with the respective organizational documents of each such Subsidiary
and the material rights (charter and statutory) and franchises of the Issuer and
each such Subsidiary; provided, however, that the Issuer shall not be required
to preserve, with respect to itself, any material right or franchise and, with
respect to any of its Significant Subsidiaries, any such existence, material
right or franchise, if the Board of Directors of the Issuer shall determine in
good faith (such determination to be evidenced by a board resolution), that the
preservation thereof is no longer desirable in the conduct of the business of
the Issuer and the Subsidiaries, taken as a whole.
SECTION 4.18. Payment of Taxes and Other Claims. The Issuer shall pay
or discharge or cause to be paid or discharged, before the same shall become
delinquent, (i) all material taxes, assessments and governmental charges
(including withholding taxes and any penalties, interest and additions to taxes)
levied or imposed upon it or any of its Restricted Subsidiaries or properties of
it or any of its Restricted Subsidiaries and (ii) all lawful claims for labor,
materials and supplies that, if unpaid, might by law become a Lien upon the
property of it or any of its Restricted Subsidiaries; provided, however, that
the Issuer shall not be required to pay or discharge or cause to be paid or
discharged any such tax, assessment, charge or claim whose amount, applicability
or validity is being contested in good faith by appropriate proceedings properly
instituted and diligently conducted for which adequate reserves, to the extent
required under GAAP, have been taken.
SECTION 4.19. Maintenance of Properties and Insurance. (a) The Issuer
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shall, and shall cause each of its Significant Subsidiaries to, maintain its
material properties in good working order and condition (subject to ordinary
wear and tear) and make or cause to be made all necessary repairs, renewals,
replacements, additions, betterments and improvements thereto and actively
conduct and carry on its business, all as in the reasonable judgment of the
Issuer is necessary so that the business carried on by Issuer and its
Significant Subsidiaries may be actively conducted; provided, however, that
nothing in this Section 4.19 shall prevent the Issuer or any of its Subsidiaries
from discontinuing the operation and maintenance of any of its properties, if
such discontinuance is, in the good faith judgment of the Issuer or the
Subsidiary, as the case may be, desirable in the conduct of their respective
businesses and is not disadvantageous in any material respect to the Holders.
(b) The Issuer shall provide or cause to be provided, for itself and
each of its Significant Subsidiaries, insurance (including appropriate
self-insurance) against loss or damage of the kinds that, in the good faith
judgment of the Issuer, are adequate and appropriate for the conduct of the
business of the Issuer and such Subsidiaries in a prudent manner, with reputable
insurers or with the government of the United States of America, any state
thereof or any agency or instrumentality of such governments, in such amounts,
with such deductibles, and by such methods as shall be customary, in the good
faith judgment of the Issuer, for companies similarly situated in the industry.
ARTICLE V
SUCCESSOR ISSUER
SECTION 5.1. When the Issuer May Merge or Transfer Assets. The Issuer
will not consolidate with or merge with or into, or convey, transfer or lease,
in one transaction or a series of transactions, all or substantially all its
assets to, any Person, unless:
(i) the resulting, surviving or transferee Person (the "Successor
Issuer") will be a Person organized and existing under the laws of the
United States of America, any State thereof or the District of Columbia
and the Successor Issuer (if not the Issuer) will expressly assume, by
supplemental indenture, executed and delivered to the Trustee, in form
satisfactory to the Trustee, all the obligations of the Issuer under the
Notes and this Indenture;
(ii) immediately after giving effect to such transaction on a pro
forma basis (and treating any Indebtedness which becomes an obligation of
the Successor Issuer or any Restricted Subsidiary as a result of such
transaction as having been Incurred by the Successor Issuer or such
Restricted Subsidiary at the time of such transaction), no Default or
Event of Default will have occurred and be continuing;
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(iii) except (A) in the case of a merger of the Issuer into a Wholly
Owned Subsidiary, (B) a merger entered into solely for the purpose of
reincorporating the Issuer in another jurisdiction or (C) a merger the
Issuer enters into solely for the purpose of forming a holding company to
hold all of the outstanding capital stock of the Issuer, immediately after
giving effect to such transaction on a pro forma basis as if such
transaction had occurred at the beginning of the applicable four quarter
period, the Issuer or the Person formed by or surviving any such
consolidation or merger (if other than the Issuer), or to which such
conveyance, transfer, lease or other disposition shall have been made,
either (x) would have been permitted to incur at least $1.00 of additional
Indebtedness under Section 4.3(a) or (y) would have had an Indebtedness to
Adjusted EBITDA Ratio immediately after giving effect to such
consolidation, merger, conveyance, transfer, lease or other disposition no
greater than the Indebtedness to Adjusted EBITDA Ratio immediately prior
to such transaction; and
(iv) the Issuer will have delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger or transfer and such supplemental indenture (if any)
comply with this Indenture, as set forth in this Indenture.
The Successor Issuer will succeed to, and be substituted for, and may
exercise every right and power of, the Issuer under this Indenture, but the
predecessor Issuer in the case of a conveyance, transfer or lease of all its
assets or substantially all its assets will be released from the obligations
under this Indenture and the Notes, including without limitation the obligation
to pay the principal of and interest on the Notes.
ARTICLE VI
DEFAULTS AND REMEDIES
SECTION 6.1. Events of Default. An "Event of Default" occurs if:
(1) the Issuer defaults in any payment of interest on any Note when
the same becomes due and payable, and such default continues for a period
of 30 days;
(2) the Issuer defaults in the payment of the principal of any Note
when the same becomes due and payable at its Stated Maturity, upon
optional or mandatory redemption, upon required repurchase, upon
declaration or otherwise;
(3) the Issuer fails to comply with its obligations under Article V;
(4) the Issuer fails to comply with Section 4.2, 4.3, 4.4, 4.5, 4.6,
4.7, 4.8,
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4.9, 4.10, 4.11 or 4.12 (other than a failure to purchase Notes when
required pursuant to Section 4.7 or 4.9, which failure shall constitute an
Event of Default under Section 6.1(2)) and such failure continues for 30
days after the notice specified below;
(5) the Issuer fails to comply with any of its agreements in the
Notes or this Indenture (other than those referred to in (1), (2), (3) or
(4) above) and such failure continues for 60 days after the notice
specified below;
(6) the Issuer or any Significant Subsidiary of the Issuer fails to
pay any Indebtedness within any applicable grace period provided in such
Indebtedness after final maturity or the acceleration of any such
Indebtedness by the holders thereof because of a default if the total
amount of such Indebtedness unpaid or accelerated exceeds $10.0 million or
its foreign currency equivalent at the time;
(7) the Issuer or a Significant Subsidiary of the Issuer pursuant to
or within the meaning of any Bankruptcy Law:
commences a voluntary case;
consents to the entry of an order for relief against it in an
involuntary case in which it is the debtor;
consents to the appointment of a Custodian of it or for any
substantial part of its property; or
makes a general assignment for the benefit of its creditors;
or takes any comparable action under any foreign laws relating to
insolvency;
(8) a court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that:
is for relief against the Issuer or any Significant Subsidiary of
the Issuer in an involuntary case;
appoints a Custodian of the Issuer or any Significant Subsidiary
or for any substantial part of its property of the Issuer or any
Significant Subsidiary; or
orders the winding up or liquidation of the Issuer or any
Significant Subsidiary of the Issuer
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(or any similar relief is granted under any foreign laws) and the order,
decree or relief remains unstayed and in effect for 90 days; or
(9) any final judgment or decree for the payment of money in excess
of $10.0 million (net of any amounts with respect to which a creditworthy
insurance company has acknowledged full liability (subject to any
deductible amounts of less than $10.0 million required to be paid by the
Issuer or the Significant Subsidiary of the Issuer in accordance with the
applicable insurance policy)) is rendered against the Issuer or any
Significant Subsidiary of the Issuer and either (A) an enforcement
proceeding has been commenced by any creditor upon such judgment or decree
or (B) such judgment or decree remains unpaid and outstanding for a
period of 60 days following such judgment and is not discharged, waived or
stayed within 10 days after notice.
The foregoing will constitute Events of Default whatever the reason
for any such Event of Default and whether it is voluntary or involuntary or is
effected by operation of law or pursuant to any judgment, decree or order of any
court or any order, rule or regulation of any administrative or governmental
body.
The term "Bankruptcy Law" means Xxxxx 00, Xxxxxx Xxxxxx Code, or any
similar Federal or state law for the relief of debtors. The term "Custodian"
means any receiver, trustee, assignee, liquidator, custodian or similar official
under any Bankruptcy Law.
A Default under clause (4), (5) and (9) of this Section 6.1 is not an
Event of Default until the Trustee by notice to the Issuer or the Holders of at
least 25% in aggregate principal amount of the outstanding Notes by notice to
the Issuer give notice of the Default and the Issuer does not cure such Default
within the time specified in said clause (4), (5) or (9) after receipt of such
notice. Such notice must specify the Default, demand that it be remedied and
state that such notice is a "Notice of Default".
The Issuer shall deliver to the Trustee, within 30 days after it
obtains knowledge of the occurrence thereof, written notice in the form of an
Officer's Certificate of any Event of Default under clause (6) of this Section
6.1 and any event which with the giving of notice or the lapse of time would
become an Event of Default under clause (4), (5) or (9) of this Section 6.1 and
what action the Issuer is taking or proposes to take with respect thereto.
SECTION 6.2. Acceleration. If an Event of Default (other than an
Event of Default specified in Section 6.1(7) or (8) with respect to the Issuer)
occurs and is continuing, the Trustee by notice to the Issuer, or the Holders of
at least 25% in aggregate principal amount at maturity of the outstanding Notes
by notice to the Issuer, may declare the Accreted Value of and accrued but
unpaid interest on all the Notes to be due and payable. Upon such a
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declaration, such Accreted Value and interest shall be due and payable
immediately. If an Event of Default specified in Section 6.1(7) or (8) with
respect to the Issuer occurs and is continuing, the Accreted Value of and
accrued interest on all the Notes shall ipso facto become and be immediately due
and payable without any declaration or other act on the part of the Trustee or
any Holders. The Holders of a majority in aggregate principal amount at maturity
of the outstanding Notes by notice to the Trustee may rescind an acceleration
and its consequences if the rescission would not conflict with any judgment or
decree and if all existing Events of Default have been cured or waived except
nonpayment of principal or interest that has become due solely because of
acceleration and the Trustee has been paid all amounts due to it pursuant to
Section 7.7. No such rescission shall affect any subsequent Default or impair
any right consequent thereto.
SECTION 6.3. Other Remedies. If an Event of Default occurs and is
continuing, the Trustee may pursue any available remedy to collect the payment
of Accreted Value of or interest on the Notes or to enforce the performance of
any provision of the Notes or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any
of the Notes or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Noteholder in exercising any right or remedy
accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. No remedy is
exclusive of any other remedy. All available remedies are, to the extent
permitted by law, cumulative.
SECTION 6.4. Waiver of Past Defaults. The Holders of a majority in
aggregate principal amount at maturity of the Notes then outstanding by notice
to the Trustee may waive any past or existing Default and its consequences
except (i) a Default in the payment of the principal of or interest on a Note or
(ii) a Default in respect of a provision that under Section 9.2 cannot be
amended without the consent of each Noteholder affected. When a Default is
waived, it is deemed cured, and any Event of Default arising therefrom shall be
deemed to have been cured, but no such waiver shall extend to any subsequent or
other Default or impair any consequent right.
SECTION 6.5. Control by Majority. Upon provision of reasonable
indemnity to the Trustee satisfactory to the Trustee, the Holders of a majority
in aggregate principal amount of the Notes then outstanding may direct the time,
method and place of conducting any proceeding for any remedy available to the
Trustee or of exercising any trust or power conferred on the Trustee. However,
the Trustee, which may rely on opinions of counsel, may refuse to follow any
direction that conflicts with law or this Indenture or, subject to Section 7.1,
that the Trustee determines is unduly prejudicial to the rights of other
Noteholders or would involve the Trustee in personal liability; provided,
however, that the
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Trustee may take any other action deemed proper by the Trustee that is not
inconsistent with such direction.
SECTION 6.6. Limitation on Suits. A Holder may not pursue any remedy
with respect to this Indenture or the Notes unless:
(i) the Holder gives to the Trustee previous written notice stating
that an Event of Default is continuing;
(ii) the Holders of at least 25% in aggregate principal amount at
maturity of the Notes then outstanding make a written request to the
Trustee to pursue the remedy;
(iii) such Holder or Holders offer to the Trustee reasonable security
or indemnity against any loss, liability or expense;
(iv) the Trustee does not comply with the request within 60 days
after receipt of the request and the offer of security or indemnity; and
(v) the Holders of a majority in aggregate principal amount of the
Notes then outstanding do not give the Trustee a direction inconsistent
with such request within such 60-day period.
A Noteholder may not use this Indenture to prejudice the rights of
another Noteholder or to obtain a preference or priority over another
Noteholder.
SECTION 6.7. Rights of Holders to Receive Payment. Notwithstanding
any other provision of this Indenture, the right of any Holder to receive
payment of the Accreted Value of and interest on the Notes held by such Holder,
on or after the respective due dates expressed in the Notes, or to bring suit
for the enforcement of any such payment on or after such respective dates, shall
not be impaired or affected without the consent of such Holder.
SECTION 6.8. Collection Suit by Trustee. If an Event of Default
specified in Section 6.1(1) or (2) occurs and is continuing, the Trustee may
recover judgment in its own name and as trustee of an express trust against the
Issuer for the whole amount then due and owing (together with interest on any
unpaid interest to the extent lawful) and the amounts provided for in Section
7.7.
SECTION 6.9. Trustee May File Proofs of Claim. The Trustee may file
such proofs of claim and other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee and the Noteholders allowed
in any judicial proceedings relative to the Issuer, its creditors or its
property and shall be entitled and empowered to
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collect, receive and distribute any money or other securities or property
payable or deliverable on any such claims and to distribute the same, and,
unless prohibited by law or applicable regulations, may vote on behalf of the
Holders in any election of a trustee in bankruptcy or other Person performing
similar functions, and any Custodian in any such judicial proceeding is hereby
authorized by each Holder to make payments to the Trustee and, in the event that
the Trustee shall consent to the making of such payments directly to the
Holders, to pay to the Trustee any amount due it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and its counsel, and any other amounts due the Trustee under Section 7.7.
SECTION 6.10. Priorities. If the Trustee collects any money or
property pursuant to this Article VI, it shall pay out the money or property in
the following order:
FIRST: to the Trustee for amounts due under Section 7.7;
SECOND: to Noteholders for amounts due and unpaid on the Notes for
Accreted Value and interest, ratably, without preference or priority of
any kind, according to the amounts due and payable on the Notes for
Accreted Value and interest, respectively; and
THIRD: to the Issuer or to such party as a court of competent
jurisdiction shall direct.
The Trustee may fix a record date and payment date for any payment to
Noteholders pursuant to this Section 6.10. At least 15 days before such record
date, the Issuer shall mail to each Noteholder and the Trustee a notice that
states the record date, the payment date and amount to be paid.
SECTION 6.11. Undertaking for Costs. In any suit for the enforcement
of any right or remedy under this Indenture or in any suit against the Trustee
for any action taken or omitted by it as Trustee, a court in its discretion may
require the filing by any party litigant in the suit of an undertaking to pay
the costs of the suit, and the court in its discretion may assess reasonable
costs, including reasonable attorneys' fees and expenses, against any party
litigant in the suit, having due regard to the merits and good faith of the
claims or defenses made by the party litigant. This Section 6.11 does not apply
to a suit by the Trustee, a suit by a Holder pursuant to Section 6.7 or a suit
by Holders of more than 10% in aggregate principal amount of the outstanding
Notes.
SECTION 6.12. Waiver of Stay or Extension Laws. The Issuer (to the
extent it may lawfully do so) shall not at any time insist upon, or plead, or in
any manner whatsoever claim or take the benefit or advantage of, any stay or
extension law wherever enacted, now or
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at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Issuer (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such
law, and shall not hinder, delay or impede the execution of any power herein
granted to the Trustee, but shall suffer and permit the execution of every such
power as though no such law had been enacted.
ARTICLE VII
TRUSTEE
SECTION 7.1. Duties of Trustee. (a) If an Event of Default has
occurred and is continuing, the Trustee shall exercise the rights and powers
vested in it by this Indenture and use the same degree of care and skill in
their exercise as a prudent Person would exercise or use under the circumstances
in the conduct of such Person's own affairs.
(b) Except during the continuance of an Event of Default:
(i) the Trustee undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture and the TIA and no
implied covenants or obligations shall be read into this Indenture against
the Trustee; and
(ii) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness
of the opinions expressed therein, upon certificates or opinions furnished
to the Trustee and conforming to the requirements of this Indenture.
However, in the case of any such certificates or opinions which by any
provision hereof are specifically required to be furnished to the Trustee,
the Trustee shall examine the certificates and opinions to determine
whether or not they conform to the requirements of this Indenture.
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own wilful misconduct,
except that:
(i) this paragraph does not limit the effect of paragraph (b) of this
Section 7.1;
(ii) the Trustee shall not be liable for any error of judgment made
in good faith by a Trust Officer unless it is proved that the Trustee was
negligent in ascertaining the pertinent facts; and
(iii) the Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction
received by it pursuant to
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Section 6.5.
(d) Whether or not therein expressly so provided, every provision of
this Indenture that in any way relates to the Trustee is subject to paragraphs
(a), (b) and (c) of this Section 7.1.
(e) Money held in trust by the Trustee need not be segregated from
other funds except to the extent required by law.
(f) No provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur financial liability in the
performance of any of its duties hereunder or in the exercise of any of its
rights or powers, if it shall have reasonable grounds to believe that repayment
of such funds or adequate indemnity against such risk or liability is not
reasonably assured to it.
(g) Every provision of this Indenture relating to the conduct or
affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section 7.1 and to the provisions of the TIA.
SECTION 7.2. Rights of Trustee. (a) The Trustee may rely upon, and
shall be fully protected from acting or refraining from acting, on any document
believed by it to be genuine and to have been signed or presented by the proper
person. The Trustee need not investigate any fact or matter stated in the
document.
(b) Before the Trustee acts or refrains from acting, it may request
an Officer's Certificate or an Opinion of Counsel or both. The Trustee shall not
be liable for any action it takes or omits to take in good faith in reliance on
the Officer's Certificate or Opinion of Counsel.
(c) The Trustee may act through agents and shall not be responsible
for the misconduct or negligence of any agent appointed with due care.
(d) The Trustee shall not be liable for any action it takes or omits
to take in good faith which it believes to be authorized or within its rights or
powers; provided, however, that the Trustee's conduct does not constitute wilful
misconduct or negligence.
(e) The Trustee may consult with counsel of its selection, and the
advice or opinion of counsel with respect to legal matters relating to this
Indenture and the Notes shall be full and complete authorization and protection
from liability in respect to any action taken, omitted or suffered by it
hereunder in good faith and in accordance with the advice or opinion of such
counsel.
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(f) The Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction of
any of the Holders pursuant to this Indenture, unless such Holders shall have
offered to the Trustee reasonable security or indemnity against the costs,
expenses and liabilities which might be incurred by it in compliance with such
request or direction.
(g) The Trustee shall not be charged with knowledge of any Default or
Event of Default with respect to the Notes unless either (1) a Trust Officer
shall have actual knowledge of such Default or Event of Default or (2) written
notice of such Default or Event of Default shall have been given to the Trustee
by the Issuer or by any Holder of the Notes.
SECTION 7.3. Individual Rights of Trustee. The Trustee in its
individual or any other capacity may become the owner or pledgee of Notes and
may otherwise deal with the Issuer or its respective Affiliates with the same
rights it would have if it were not Trustee. Any Paying Agent, Registrar,
co-registrar or co-paying agent may do the same with like rights. However, the
Trustee must comply with Sections 7.10 and 7.11.
SECTION 7.4. Trustee's Disclaimer. The Trustee shall not be
responsible for and makes no representation as to the validity or adequacy of
this Indenture or the Notes, it shall not be accountable for the Issuer's use of
the proceeds from the Notes, and it shall not be responsible for any statement
of the Issuer in this Indenture or in any document issued in connection with the
sale of the Notes or in the Notes other than the Trustee's certificate of
authentication.
SECTION 7.5. Notice of Defaults. If a Default or an Event of Default
occurs and is continuing and if it is known to the Trustee, the Trustee must
mail to each Noteholder notice of the Default within the earlier of 90 days
after it occurs or 30 days after it is known to a Trust Officer or written
notice of it is received by the Trustee. Except in the case of a Default in
payment of principal of, premium (if any) or interest on any Note, the Trustee
may withhold notice if and so long as a committee of its Trust Officers in good
faith determines that withholding notice is not opposed to the interests of
Noteholders.
SECTION 7.6. Reports by Trustee to Holders. As promptly as
practicable after each January 15 beginning with the January 15 following the
date of this Indenture, and in any event prior to March 15 in each year, the
Trustee shall mail to each Noteholder a brief report dated as of such January 15
that complies with TIA Section 313(a). The Trustee also shall comply with TIA
Section 313(b). The Trustee shall promptly deliver to the Issuer a copy of any
report it delivers to Holders pursuant to this Section 7.6.
A copy of each report at the time of its mailing to Noteholders shall
be filed by the Trustee with the SEC and each stock exchange (if any) on which
the Notes are listed. The
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Issuer agrees to notify promptly the Trustee whenever the Notes become listed on
any stock exchange and of any delisting thereof.
SECTION 7.7. Compensation and Indemnity. The Issuer shall pay to the
Trustee from time to time such compensation for its services as the Issuer and
the Trustee shall from time to time agree in writing. The Trustee's compensation
shall not be limited by any law on compensation of a trustee of an express
trust. The Issuer shall reimburse the Trustee upon request for all reasonable
fees and expenses, including out-of-pocket expenses, incurred or made by it in
connection with the performance of its duties hereunder, including costs of
collection, in addition to such compensation for its services, except any such
expense, disbursement or advance as may arise from its negligence, wilful
misconduct or bad faith, unless the Trustee shall have complied with the
applicable standard of care required by the TIA. Such expenses shall include the
reasonable compensation and expenses, disbursements and advances of the
Trustee's agents, counsel, accountants and experts. The Trustee shall provide
the Issuer reasonable notice of any expenditure not in the ordinary course of
business; provided that prior approval by the Issuer of any such expenditure
shall not be a requirement for the making of such expenditure nor for
reimbursement by the Issuer thereof. The Issuer shall indemnify each of the
Trustee and any predecessor Trustees against any and all loss, damage, claim,
liability or expense (including reasonable attorneys' fees and expenses) (other
than taxes applicable to the Trustee's compensation hereunder) incurred by it in
connection with the acceptance or administration of this trust and the
performance of its duties hereunder. The Trustee shall notify the Issuer
promptly of any claim for which it may seek indemnity. Failure by the Trustee to
so notify the Issuer shall not relieve the Issuer of its obligations hereunder.
The Issuer shall defend the claim and the Trustee may have separate counsel, and
the Issuer will pay the reasonable fees and expenses of such counsel. The Issuer
need not reimburse any expense or indemnify against any loss, liability or
expense incurred by the Trustee through the Trustee's own wilful misconduct,
negligence or bad faith, unless the Trustee shall have complied with the
applicable standard of care required by the TIA.
To secure the Issuer's payment obligations in this Section 7.7, the
Trustee shall have a lien prior to the Notes on all money or property held or
collected by the Trustee other than money or property held in trust to pay
principal of and interest on particular Notes.
The Issuer's payment obligations pursuant to this Section 7.7 shall
survive the resignation or removal of the Trustee and discharge of this
Indenture. When the Trustee incurs expenses after the occurrence of a Default
specified in Section 6.1(7) or (8) with respect to the Issuer, the expenses are
intended to constitute expenses of administration under the Bankruptcy Law,
provided, however, that this shall not affect the Trustee's rights as set forth
in the preceding paragraph or Section 6.10.
SECTION 7.8. Replacement of Trustee. The Trustee may resign at any
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time with 30 days notice to the Issuer. The Holders of a majority in principal
amount of the Notes then outstanding, may remove the Trustee with 30 days notice
to the Trustee and the Issuer and may appoint a successor Trustee. The Issuer
shall remove the Trustee if:
(i) the Trustee fails to comply with Section 7.10;
(ii) the Trustee is adjudged bankrupt or insolvent;
(iii) a receiver or other public officer takes charge of the Trustee
or its property; or
(iv) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns, is removed by the Issuer or by the Holders of
a majority in principal amount of the Notes and such Holders do not reasonably
promptly appoint a successor Trustee, or if a vacancy exists in the office of
Trustee for any reason (the Trustee in such event being referred to herein as
the retiring Trustee), the Issuer shall promptly appoint a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Issuer. Thereupon the resignation
or removal of the retiring Trustee shall become effective, and the successor
Trustee shall have all the rights, powers and duties of the Trustee under this
Indenture. The successor Trustee shall mail a notice of its succession to
Noteholders. The retiring Trustee shall promptly transfer all property held by
it as Trustee to the successor Trustee, subject to the lien provided for in
Section 7.7.
If a successor Trustee does not take office within 30 days after the
retiring Trustee resigns or is removed, the retiring Trustee or the Holders of
10% in principal amount of the Notes may petition any court of competent
jurisdiction for the appointment of a successor Trustee.
If the Trustee fails to comply with Section 7.10, any Noteholder may
petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor Trustee.
SECTION 7.9. Successor Trustee by Merger. If the Trustee consolidates
with, merges or converts into, or transfers all or substantially all its
corporate trust business or assets to, another corporation or banking
association, the resulting, surviving or transferee corporation without any
further act shall be the successor Trustee, provided that such corporation shall
be eligible under this Article VII and TIA Section 3.10(a).
In case at the time such successor or successors by merger,
conversion or
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consolidation to the Trustee shall succeed to the trusts created
by this Indenture any of the Notes shall have been authenticated but not
delivered, any such successor to the Trustee may adopt the certificate of
authentication of any predecessor trustee, and deliver such Notes so
authenticated; and in case at that time any of the Notes shall not have been
authenticated, any successor to the Trustee may authenticate such Notes either
in the name of any predecessor hereunder or in the name of the successor to the
Trustee; and in all such cases such certificates shall have the full force which
it is anywhere in the Notes or in this Indenture provided that the certificate
of the Trustee shall have.
SECTION 7.10. Eligibility; Disqualification. The Trustee shall at all
times satisfy the requirements of TIA Section 310(a). The Trustee shall have a
combined capital and surplus of at least $50,000,000 as set forth in its most
recent published annual report of condition. The Trustee shall comply with TIA
Section 310(b); provided, however, that there shall be excluded from the
operation of TIA Section 310(b)(1) any indenture or indentures under which other
securities or certificates of interest or participation in other securities of
the Issuer are outstanding if the requirements for such exclusion set forth in
TIA Section 310(b)(1) are met.
SECTION 7.11. Preferential Collection of Claims Against Issuer. The
Trustee shall comply with TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). A Trustee who has resigned or been
removed shall be subject to TIA Section 311(a) to the extent indicated.
ARTICLE VIII
DISCHARGE OF INDENTURE; DEFEASANCE
SECTION 8.1. Discharge of Liability on Notes; Defeasance. (a) When
(i) the Issuer delivers to the Trustee all outstanding Notes (other than Notes
replaced pursuant to Section 2.7) for cancellation or (ii) all outstanding Notes
have become due and payable, whether at maturity or as a result of the mailing
of a notice of redemption pursuant to Article III hereof or the Notes will
become due and payable at their Stated Maturity within 91 days, or the Notes are
to be called for redemption within 91 days under arrangements satisfactory to
the Trustee for the giving of notice of redemption by the Trustee in the name,
and at the expense, of the Issuer, and, in each case of this clause (ii), the
Issuer irrevocably deposits or causes to be deposited with the Trustee funds
sufficient to pay at maturity or upon redemption all outstanding Notes,
including interest thereon to maturity or such redemption date (other than Notes
replaced pursuant to Section 2.7), and if in either case the Issuer pays all
other sums payable hereunder by the Issuer, then this Indenture shall, subject
to Section 8.1(c), cease to be of further effect. The Trustee shall acknowledge
satisfaction and discharge of this Indenture on demand of the Issuer accompanied
by an Officer's Certificate and an Opinion of
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Counsel from the Issuer that all conditions precedent provided herein for
relating to satisfaction and discharge of this Indenture have been complied with
and at the cost and expense of the Issuer.
(b) Subject to Sections 8.1(c) and 8.2, the Issuer at any time may
terminate (i) all of its obligations under the Notes and this Indenture ("legal
defeasance option") or (ii) its obligations under Sections 4.2, 4.3, 4.4, 4.5,
4.6, 4.7, 4.8, 4.9, 4.10, 4.11, 4.12, 4.14, 4.18 and 4.19 and the operation of
Sections 6.1(6), 6.1(7) (but only with respect to a Significant Subsidiary),
6.1(8) (but only with respect to a Significant Subsidiary), 6.1(9) and 5.1(iii)
("covenant defeasance option"). The Issuer may exercise its legal defeasance
option notwithstanding its prior exercise of its covenant defeasance option.
If the Issuer exercises its legal defeasance option, payment of the
Notes may not be accelerated because of an Event of Default. If the Issuer
exercises its covenant defeasance option, payment of the Notes may not be
accelerated because of an Event of Default specified in Section 6.1(4), 6.1(5),
6.1(6), 6.1(7) (but only with respect to a Significant Subsidiary), 6.1(8) (but
only with respect to a Significant Subsidiary), 6.1(9), 6.1(10) or because of
the failure of the Issuer to comply with Section 5.1(iii).
Upon satisfaction of the conditions set forth herein and upon request
of the Issuer, the Trustee shall acknowledge in writing the discharge of those
obligations that the Issuer terminates.
(c) Notwithstanding clauses (a) and (b) above, the Issuer's
obligations in Sections 2.3, 2.4, 2.5, 2.7, 4.1, 4.13, 4.15, 4.16, 4.17, 7.7,
7.8, 8.4, 8.5 and 8.6 shall survive until the Notes have been paid in full.
Thereafter, the Issuer's obligations in Sections 7.7, 8.4 and 8.5 shall survive.
SECTION 8.2. Conditions to Defeasance. The Issuer may exercise its
legal defeasance option or its covenant defeasance option only if:
(i) the Issuer irrevocably deposits or causes to be deposited in
trust with the Trustee money or U.S. Government Obligations which through
the scheduled payment of principal and interest in respect thereof in
accordance with their terms will provide cash at such times and in such
amounts as will be sufficient to pay principal and interest when due on
all outstanding Notes (except Notes replaced pursuant to Section 2.7) to
maturity or redemption, as the case may be;
(ii) the Issuer delivers to the Trustee a certificate from a
nationally recognized firm of independent accountants expressing their
opinion that the payments of principal and interest when due and without
reinvestment on the deposited U.S.
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Government Obligations plus any deposited money without investment
will provide cash at such times and in such amounts as will be sufficient
to pay principal and interest when due on all outstanding Notes (except
Notes replaced pursuant to Section 2.7) to maturity or redemption, as the
case may be;
(iii) 91 days pass after the deposit is made and during the 91-day
period no Default specified in Section 6.1(7) or (8) with respect to the
Issuer occurs which is continuing at the end of the period;
(iv) the deposit does not constitute a default under any other
material agreement binding on the Issuer;
(v) the Issuer delivers to the Trustee an Opinion of Counsel to the
effect that the trust resulting from the deposit does not constitute, or
is qualified as, a regulated investment company under the Investment
Company Act of 1940;
(vi) in the case of the legal defeasance option, the Issuer shall
have delivered to the Trustee an Opinion of Counsel stating that (i) the
Issuer has received from, or there has been published by, the Internal
Revenue Service a ruling, or (ii) since the date of this Indenture there
has been a change in the applicable federal income tax law, in either case
to the effect that, and based thereon such Opinion of Counsel shall
confirm that, the Noteholders will not recognize income, gain or loss for
federal income tax purposes as a result of such deposit and defeasance and
will be subject to federal income tax on the same amounts, in the same
manner and at the same times as would have been the case if such deposit
and defeasance had not occurred;
(vii) in the case of the covenant defeasance option, the Issuer shall
have delivered to the Trustee an Opinion of Counsel to the effect that the
Noteholders will not recognize income, gain or loss for federal income tax
purposes as a result of such covenant defeasance and will be subject to
federal income tax on the same amounts and in the same manner and at the
same times as would have been the case if such deposit and covenant
defeasance had not occurred; and
(viii) the Issuer delivers to the Trustee an Officer's Certificate
and an Opinion of Counsel, each stating that all conditions precedent to
the defeasance and discharge of the Notes as contemplated by this Article
VIII have been complied with.
Before or after a deposit, the Issuer may make arrangements
satisfactory to the Trustee for the redemption of Notes at a future date in
accordance with Article III.
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SECTION 8.3. Application of Trust Money. The Trustee shall hold in
trust money or U.S. Government Obligations deposited with it pursuant to this
Article VIII. It shall apply the deposited money and the money from U.S.
Government Obligations either directly or through the Paying Agent as the
Trustee may determine and in accordance with this Indenture to the payment of
principal of and interest on the Notes.
SECTION 8.4. Repayment to Issuer. The Trustee and the Paying Agent
shall promptly turn over to the Issuer upon request any excess money or
securities held by them at any time.
Subject to any applicable abandoned property law, the Trustee and the
Paying Agent shall pay to the Issuer upon written request any money held by them
for the payment of principal or interest that remains unclaimed for one year
after such principal and interest have become due and payable, and, thereafter,
Noteholders entitled to the money must look to the Issuer for payment as general
creditors.
SECTION 8.5. Indemnity for Government Obligations. The Issuer shall
pay and shall indemnify the Trustee against any tax, fee or other charge imposed
on or assessed against deposited U.S. Government Obligations or the principal
and interest received on such U.S. Government Obligations other than any such
tax, fee or other charge which by law is for the account of the Holders of the
defeased Notes; provided that the Trustee shall be entitled to charge any such
tax, fee or other charge to such Holder's account.
SECTION 8.6. Reinstatement. If the Trustee or Paying Agent is unable
to apply any money or U.S. Government Obligations in accordance with this
Article VIII by reason of any legal proceeding or by reason of any order or
judgment of any court or governmental authority enjoining, restraining or
otherwise prohibiting such application, the Issuer's obligations under this
Indenture and the Notes shall be revived and reinstated as though no deposit had
occurred pursuant to this Article VIII until such time as the Trustee or Paying
Agent is permitted to apply all such money or U.S. Government Obligations in
accordance with this Article VIII; provided, however, that, (a) if the Issuer
has made any payment of interest on or principal of any Notes following the
reinstatement of their obligations, the Issuer shall be subrogated to the rights
of the Holders of such Notes to receive such payment from the money or U.S.
Government Obligations held by the Trustee or Paying Agent and (b) unless
otherwise required by any legal proceeding or any order or judgment of any court
or governmental authority, the Trustee or Paying Agent shall return all such
money and U.S. Government Obligations to the Issuer promptly after receiving a
written request therefor at any time, if such reinstatement of the Issuer's
obligations has occurred and continues to be in effect.
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ARTICLE IX
AMENDMENTS
SECTION 9.1. Without Consent of Holders. The Issuer and the Trustee
may amend this Indenture or the Notes without notice to or consent of any
Noteholder:
(i) to cure any ambiguity, omission, defect or inconsistency;
(ii) to comply with Article V;
(iii) to provide for uncertificated Notes in addition to or in place
of certificated Notes (provided, however, that the uncertificated Notes
are issued in registered form for purposes of Section 163(f) of the Code
or in a manner such that the uncertificated Notes are as described in
Section 163(f)(2)(B) of the Code);
(iv) to add Guarantees with respect to the Notes;
(v) to secure the Notes;
(vi) to add to the covenants of the Issuer for the benefit of the
Noteholders or to surrender any right or power herein conferred upon the
Issuer;
(vii) to make any change that does not materially and adversely
affect the rights of any Noteholder; and
(viii) to comply with any requirements of the SEC in connection with
qualifying this Indenture under the TIA.
After an amendment under this Section 9.1 becomes effective, the
Issuer shall mail to Noteholders a notice briefly describing such amendment. The
failure to give such notice to all Noteholders, or any defect therein, shall not
impair or affect the validity of an amendment under this Section 9.1.
SECTION 9.2. With Consent of Holders. The Issuer and the Trustee may
amend this Indenture or the Notes without notice to any Noteholder but with the
written consent of the Holders of at least a majority in principal amount at
maturity of the Notes then outstanding (including consents obtained in
connection with a tender offer or exchange for Notes). However, without the
consent of each Noteholder of an outstanding Note affected, an amendment may
not:
(i) reduce the amount of Notes whose Holders must consent to an
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amendment;
(ii) reduce the rate of or extend the time for payment of interest on
any Note;
(iii) reduce the principal of or extend the Stated Maturity of any
Note;
(iv) reduce the premium payable upon the redemption of any Note or
change the time at which any Note may be redeemed in accordance with
Article III;
(v) make any Note payable in money other than that stated in the
Note;
(vi) impair the right of any Holder to receive payment of principal
of and interest on such Holder's Notes on or after the due dates therefor
or to institute suit for the enforcement of any payment on or with respect
to such Holder's Notes; or
(vii) make any change in this second sentence of Section 9.2.
It shall not be necessary for the consent of the Holders under this
Section 9.2 to approve the particular form of any proposed amendment, but it
shall be sufficient if such consent approves the substance thereof.
After an amendment under this Section 9.2 becomes effective, the
Issuer shall mail to Noteholders a notice briefly describing such amendment. The
failure to give such notice to all Noteholders, or any defect therein, shall not
impair or affect the validity of an amendment under this Section 9.2.
SECTION 9.3. Compliance with Trust Indenture Act. Every amendment to
this Indenture or the Notes shall comply with the TIA as then in effect.
SECTION 9.4. Revocation and Effect of Consents and Waivers. A consent
to an amendment or a waiver by a Holder of a Note shall bind the Holder and
every subsequent Holder of that Note or portion of the Note that evidences the
same debt as the consenting Holder's Note, even if notation of the consent or
waiver is not made on the Note. After an amendment or waiver becomes effective,
it shall bind every Noteholder.
The Issuer may, but shall not be obligated to, fix a record date for
the purpose of determining the Noteholders entitled to give their consent or
take any other action described above or required or permitted to be taken
pursuant to this Indenture. If a record date is fixed, then notwithstanding the
immediately preceding paragraph, those Persons who were Noteholders at such
record date (or their duly designated proxies), and only those Persons, shall be
entitled to give such consent or to revoke any consent previously given or to
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take any such action, whether or not such Persons continue to be Holders after
such record date. No such consent shall be valid or effective for more than 120
days after such record date.
SECTION 9.5. Notation on or Exchange of Notes. If an amendment
changes the terms of a Note, the Trustee may require the Holder of the Note to
deliver it to the Trustee. The Trustee may place an appropriate notation on the
Note regarding the changed terms and return it to the Holder. Alternatively, if
the Issuer or the Trustee so determine, the Issuer in exchange for the Note
shall issue and the Trustee shall authenticate a new Note that reflects the
changed terms. Failure to make the appropriate notation or to issue a new Note
shall not affect the validity of such amendment.
SECTION 9.6. Trustee to Sign Amendments. The Trustee shall sign any
amendment authorized pursuant to this Article IX if the amendment does not
materially and adversely affect the rights, duties, liabilities or immunities of
the Trustee. If it does, the Trustee may but need not sign it. In signing such
amendment the Trustee shall be entitled to receive indemnity reasonably
satisfactory to it and to receive, and (subject to Section 7.1) shall be fully
protected in relying upon, in addition to the documents required by Section
10.4, an Officer's Certificate and an Opinion of Counsel stating that such
amendment complies with the provisions of this Article IX.
SECTION 9.7. Payment for Consent. Neither the Issuer nor any
affiliate of the Issuer shall, directly or indirectly, pay or cause to be paid
any consideration, whether by way of interest, fee or otherwise, to any Holder
for, or as an inducement to any consent, waiver or amendment of any of the terms
or provisions of this Indenture or the Notes unless such consideration is
offered to be paid to all Holders that so consent, waive or agree to amend in
the time frame set forth in solicitation documents relating to such consent,
waiver or agreement; provided, however, that Holders who do not consent, waive
or agree to amend this Indenture in the time frame set forth in such
solicitation documents shall not be entitled to any consideration offered for
timely consent, waiver or amendment, even if the consent, waiver or amendment is
agreed to by sufficient Holders to approve such consent, waiver or amendment to
this Indenture.
ARTICLE X
MISCELLANEOUS
SECTION 10.1. Trust Indenture Act Controls. If any provision of this
Indenture limits, qualifies or conflicts with another provision which is
required to be included in this Indenture by the TIA, the provision required by
the TIA shall control.
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SECTION 10.2. Notices. Any notice or communication shall be in
writing and delivered in person, transmitted by facsimile machine, or mailed by
first-class mail or overnight air courier guaranteeing next day delivery
addressed as follows:
if to the Issuer:
SpectraSite Holdings, Inc.
0000 Xxxxxxx Xxxxxxx, Xxxxx 000
Xxxx, Xxxxx Xxxxxxxx 00000
Attention: Chief Financial Officer
if to the Trustee:
United States Trust Company of New York
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Corporate Trust Administration
The Issuer or the Trustee by notice to the others may designate
additional or different addresses for subsequent notices or communications.
Any notice or communication mailed to a Noteholder shall be mailed to
the Noteholder at the Noteholder's address as it appears on the registration
books of the Registrar and shall be sufficiently given if so mailed within the
time prescribed.
Failure to mail a notice or communication to a Noteholder or any
defect in it shall not affect its sufficiency with respect to other Noteholders.
Except for a notice to the Trustee, which is deemed given only when received,
and except as otherwise provided in this Indenture, if a notice or communication
is mailed in the manner provided above, it is duly given, whether or not the
addressee receives it.
SECTION 10.3. Communication by Holders with Other Holders.
Noteholders may communicate pursuant to TIA Section 312(b) with other
Noteholders with respect to their rights under this Indenture or the Notes. The
Issuer, the Trustee, the Registrar and anyone else shall have the protection of
TIA Section 312(c).
SECTION 10.4. Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Issuer to the Trustee to take or refrain
from taking any action under this Indenture, the Issuer shall furnish to the
Trustee:
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(i) an Officer's Certificate in form and substance reasonably
satisfactory to the Trustee stating that, in the opinion of the signer,
all conditions precedent, if any, provided for in this Indenture relating
to the proposed action have been complied with; and
(ii) an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee stating that, in the opinion of such counsel,
all such conditions precedent have been complied with.
SECTION 10.5. Statements Required in Certificate or Opinion. Each
certificate or opinion with respect to compliance with a covenant or condition
provided for in this Indenture shall include:
(i) a statement that the individual making such certificate or
opinion has read such covenant or condition;
(ii) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(iii) a statement that, in the opinion of such individual, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(iv) a statement as to whether or not, in the opinion of such
individual, such covenant or condition has been complied with.
SECTION 10.6. When Notes Disregarded. In determining whether the
Holders of the required principal amount of Notes have concurred in any
direction, waiver or consent, Notes owned by the Issuer or by any Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with the Issuer shall be disregarded and deemed not to be
outstanding, except that, for the purpose of determining whether the Trustee
shall be protected in relying on any such direction, waiver or consent, only
Notes which a Trust Officer of the Trustee knows are so owned shall be so
disregarded. Also, subject to the foregoing, only Notes outstanding at the time
shall be considered in any such determination.
SECTION 10.7. Rules by Trustee, Paying Agent and Registrar. The
Trustee may make reasonable rules for action by or at a meeting of Noteholders.
The Registrar and the Paying Agent may make reasonable rules for their
functions.
SECTION 10.8. Legal Holidays. A "Legal Holiday" is a Saturday, a
Sunday
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or a day on which banking institutions are not required to be open in the State
of New York. If a payment date is a Legal Holiday, payment shall be made on the
next succeeding day that is not a Legal Holiday, and no interest shall accrue on
such payment for the intervening period. If a regular record date is a Legal
Holiday, the record date shall not be affected.
SECTION 10.9. Governing Law. THIS INDENTURE AND THE NOTES SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK
BUT WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE
EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE
REQUIRED THEREBY.
SECTION 10.10. No Recourse Against Others. No director, officer,
employee, incorporator or stockholder of the Issuer, as such, shall have any
liability for any obligations of the Issuer under the Notes, this Indenture or
for any claim based on, in respect of, or by reason of such obligations or their
creation. Each Holder of Notes by accepting a Note waives and releases all such
liability. This waiver and release are part of the consideration for issuance of
the Notes.
SECTION 10.11. Successors. All agreements of the Issuer in this
Indenture and the Notes shall bind its successors. All agreements of the Trustee
in this Indenture shall bind its successors.
SECTION 10.12. Multiple Originals. The parties may sign any number of
copies of this Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement. One signed copy is enough to prove this
Indenture.
SECTION 10.13. Variable Provisions. The Issuer initially appoints the
Trustee as Paying Agent and Registrar and custodian with respect to any Global
Notes.
SECTION 10.14. Qualification of Indenture. The Issuer shall qualify
this Indenture under the TIA in accordance with the terms and conditions of the
Registration Rights Agreement (as defined in the Appendix hereto) and shall pay
all reasonable costs and expenses (including attorneys' fees for the Issuer, the
Trustee and the Holders) incurred in connection therewith, including, but not
limited to, costs and expenses of qualification of this Indenture and the Notes.
The Trustee shall be entitled to receive from the Issuer any such Officer's
Certificates, Opinions of Counsel or other documentation as it may reasonably
request in connection with any such qualification of this Indenture under the
TIA.
SECTION 10.15. Table of Contents; Headings. The table of contents,
cross-reference sheet and headings of the Articles and Sections of this
Indenture have been inserted
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for convenience of reference only, are not intended to be considered a part
hereof and shall not modify or restrict any of the terms or provisions hereof.
SECTION 10.16. Severability. In case any provision in this Indenture
or in the Notes shall be invalid, illegal or unenforceable, in any respect for
any reason, the validity, legality and enforceability of any such provision in
every other respect and of the remaining provisions shall not in any way be
affected or impaired thereby.
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IN WITNESS WHEREOF, the parties have caused this Indenture to be duly executed
as of the date first written above.
SPECTRASITE HOLDINGS, INC.
By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: Chief Financial Officer
UNITED STATES TRUST COMPANY OF
NEW YORK, as Trustee
By: /s/ Xxxxxxxx X. Ciesmelenski
Name: Xxxxxxxx X. Ciesmelenski
Title: Assistant Vice President
74
RULE 144A/REGULATION S APPENDIX
INSTITUTIONAL BUYERS
PURSUANT TO RULE 144A AND TO CERTAIN PERSONS IN OFFSHORE
TRANSACTIONS IN RELIANCE ON REGULATION S.
PROVISIONS RELATING TO INITIAL NOTES,
PRIVATE EXCHANGE NOTES AND EXCHANGE NOTES
1. Definitions.
1.1. Definitions. For the purposes of this Appendix the following
terms shall have the meanings indicated below:
"Depositary" means The Depository Trust Company, its nominees and
their respective successors and assigns.
"Exchange Notes" means the 11 1/4% Senior Discount Notes due 2009 to
be issued pursuant to this Indenture in connection with a Registered Exchange
Offer pursuant to the Registration Rights Agreement.
"Initial Purchasers" means Credit Suisse First Boston Corporation,
Xxxxxx Brothers Inc. and CIBC Xxxxxxxxxxx Corp.
"Initial Notes" means the 11 1/4% Senior Discount Notes due 2009,
issued under this Indenture on or about the date hereof.
"Notes" means the Initial Notes, the Exchange Notes and the Private
Exchange Notes, treated as a single class.
"Notes Custodian" means the custodian with respect to a Global Note
(as appointed by the Depositary), or any successor person thereto and shall
initially be the Trustee.
"Private Exchange" means the offer by the Issuer, pursuant to the
Registration Rights Agreement, to the Initial Purchasers to issue and deliver to
each Initial Purchaser, in exchange for the Initial Notes held by the Initial
Purchaser as part of its initial distribution, a like aggregate principal amount
at maturity of Private Exchange Notes.
"Private Exchange Notes" means the 11 1/4% Senior Discount Notes due
2009,
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if any, to be issued pursuant to this Indenture to the Initial Purchasers in a
Private Exchange.
"Purchase Agreement" means the Purchase Agreement dated April 13,
1999, among the Issuer and the Initial Purchasers.
"QIB" means a "qualified institutional buyer" as defined in Rule
144A.
"Registered Exchange Offer" means the offer by the Issuer, pursuant
to the Registration Rights Agreement, to certain Holders of Initial Notes, to
issue and deliver to such Holders, in exchange for the Initial Notes, a like
aggregate principal amount of Exchange Notes registered under the Securities
Act.
"Registration Rights Agreement" means the Registration Rights
Agreement dated as of April 20, 1999 among the Issuer and the Initial
Purchasers.
"Regulation S" means Regulation S under the Securities Act.
"Rule 144A" means Rule 144A under the Securities Act.
"Securities Act" means the Securities Act of 1933,
as amended.
"Shelf Registration Statement" means the registration statement
issued by the Issuer, in connection with the offer and sale of Initial Notes or
Private Exchange Notes, pursuant to Section 2 of the Registration Rights
Agreement.
"Transfer Restricted Notes" means Notes that bear or are required to
bear the legend set forth in Section 2.3(b) hereof.
1.2. Other Definitions
Defined in
Term Section
----- -------
"Agent Members"................................. 2.1(b)
"Global Note"................................... 2.1(a)
2. The Notes.
2.1. Form and Dating. The Initial Notes are being offered and sold by
the Issuer pursuant to the Purchase Agreement.
(a) Global Notes. Initial Notes offered and sold to a QIB in reliance
on
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Rule 144A or in reliance on Regulation S, in each case as provided in the
Purchase Agreement, shall be issued initially in the form of one or more
permanent global Notes in definitive, fully registered form without interest
coupons with the global securities legend and restricted securities legend set
forth in Exhibit 1 hereto (each, a "Global Note"), which shall be deposited on
behalf of the purchasers of the Initial Notes represented thereby with the
Trustee as custodian for the Depositary (or with such other custodian as the
Depositary may direct), and registered in the name of the Depositary or a
nominee of the Depositary, duly executed by the Issuer and authenticated by the
Trustee as hereinafter provided. The aggregate principal amount of the Global
Notes may from time to time be increased or decreased by adjustments made on the
records of the Trustee and the Depositary or its nominee as hereinafter
provided.
(b) Book-Entry Provisions. This Section 2.1(b) shall apply only to a
Global Note deposited with or on behalf of the Depositary.
The Issuer shall execute and the Trustee shall, in accordance with
this Section 2.1(b), authenticate and deliver initially one or more Global Notes
that (i) shall be registered in the name of the Depositary for such Global Note
or Global Notes or in the name of the nominee of such Depositary and (ii) shall
be delivered by the Trustee to such Depositary or pursuant to such Depositary's
instructions or held by the Trustee as custodian for the Depositary.
Members of, or participants in, the Depositary ("Agent Members")
shall have no rights under this Indenture with respect to any Global Note held
on their behalf by the Depositary or by the Trustee as the custodian of the
Depositary or under such Global Note, and the Depositary may be treated by the
Issuer, the Trustee and any agent of the Issuer or the Trustee as the absolute
owner of such Global Note for all purposes whatsoever. Notwithstanding the
foregoing, nothing herein shall prevent the Issuer, the Trustee or any agent of
the Issuer or the Trustee from giving effect to any written certification, proxy
or other authorization furnished by the Depositary or impair, as between the
Depositary and its Agent Members, the operation of customary practices of such
Depositary governing the exercise of the rights of a holder of a beneficial
interest in any Global Note.
(c) Certificated Notes. Except as provided in this Section 2.1 or
Section 2.3 or 2.4, owners of beneficial interests in Global Notes will not be
entitled to receive physical delivery of certificated Notes.
2.2. Authentication. The Trustee shall authenticate and deliver: (1)
Initial Notes for original issue in an aggregate principal amount at maturity of
U.S. $586,800,000 and (2) Exchange Notes or Private Exchange Notes for issue
only in a Registered Exchange Offer or a Private Exchange, respectively,
pursuant to the Registration Rights Agreement, for
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a like principal amount at maturity of Initial Notes, in each case upon a
written order of the Issuer signed by two Officers or by an Officer and either
an Assistant Treasurer or an Assistant Secretary of the Issuer. Such order shall
specify the amount of the Notes to be authenticated and the date on which the
original issue of Notes is to be authenticated and whether the Notes are to be
Initial Notes, Exchange Notes or Private Exchange Notes. The aggregate principal
amount at maturity of Notes outstanding at any time may not exceed U.S.
$586,800,000 except as provided in Section 2.7 of this Indenture.
2.3. Transfer and Exchange.
(a) Transfer and Exchange of Global Notes. (i) The transfer and
exchange of Global Notes or beneficial interests therein shall be effected
through the Depositary, in accordance with this Indenture (including applicable
restrictions on transfer set forth herein, if any) and the procedures of the
Depositary therefor. A transferor of a beneficial interest in a Global Note
shall deliver to the Registrar a written order given in accordance with the
Depositary's procedures containing information regarding the participant account
of the Depositary to be credited with a beneficial interest in the Global Note.
The Registrar shall, in accordance with such instructions instruct the
Depositary to credit to the account of the Person specified in such instructions
a beneficial interest in the Global Note and to debit the account of the Person
making the transfer of the beneficial interest in the Global Note being
transferred.
(ii) Notwithstanding any other provisions of this Appendix (other
than the provisions set forth in Section 2.4), a Global Note may not be
transferred as a whole except by the Depositary to a nominee of the Depositary
or by a nominee of the Depositary to the Depositary of another nominee of the
Depositary or by the Depositary or any such nominee to a successor Depositary or
a nominee of such successor Depositary.
(iii) In the event that a Global Note is exchanged for Notes in
definitive registered form pursuant to Section 2.4 of this Appendix or Section
2.9 of this Indenture prior to the consummation of a Registered Exchange Offer
or the effectiveness of a Shelf Registration Statement with respect to such
Notes, such Notes may be exchanged only in accordance with such procedures as
are substantially consistent with the provisions of this Section 2.3 (including
the certification requirements set forth on the reverse of the Initial Notes
intended to ensure that such transfers comply with Rule 144A or Regulation S, as
the case may be) and such other procedures as may from time to time be adopted
by the Issuer.
(b) Legend. (i) Except as permitted by the following paragraphs (ii),
(iii) and (iv), each Note certificate evidencing the Global Notes (and all Notes
issued in exchange therefor or in substitution thereof) shall bear a legend in
substantially the following form:
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"THIS NOTE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY, MAY NOT BE
OFFERED OR SOLD WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR
BENEFIT OF, U.S. PERSONS, EXCEPT AS SET FORTH BELOW. BY ITS ACQUISITION
HEREOF, THE HOLDER AGREES THAT (1) IT WILL NOT PRIOR TO THE DATE (THE
"RESALE RESTRICTION TERMINATION DATE") THAT IS TWO YEARS AFTER THE LATER
OF THE ORIGINAL ISSUANCE OF THIS NOTE AND THE LAST DATE ON WHICH ISSUER,
OR ANY AFFILIATE OF ISSUER, WAS THE OWNER OF THIS NOTE (OR ANY PREDECESSOR
OF THIS NOTE), RESELL OR OTHERWISE TRANSFER THIS NOTE EXCEPT (A) TO
HOLDINGS OR ANY SUBSIDIARY THEREOF, (B) INSIDE THE UNITED STATES TO A
QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE
SECURITIES ACT, (C) INSIDE THE UNITED STATES TO AN INSTITUTIONAL
ACCREDITED INVESTOR WITHIN THE MEANING OF SUBPARAGRAPH (a)(1), (2), (3) OR
(7) OF RULE 501 UNDER THE SECURITIES ACT THAT, PRIOR TO SUCH TRANSFER,
FURNISHES (OR HAS FURNISHED ON ITS BEHALF BY A U.S. BROKER-DEALER) TO THE
TRUSTEE A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS
RELATING TO THE RESTRICTIONS ON TRANSFER OF THIS NOTE (THE FORM OF WHICH
LETTER CAN BE OBTAINED FROM THE TRUSTEE), (D) OUTSIDE THE UNITED STATES IN
AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904 UNDER THE SECURITIES
ACT, (E) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT OR (F) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND (2) WILL GIVE TO EACH
PERSON TO WHOM THIS NOTE IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE
EFFECT OF THIS LEGEND. IN CONNECTION WITH ANY TRANSFER OF THIS NOTE PRIOR
TO THE RESALE RESTRICTION TERMINATION DATE, IF THE PROPOSED TRANSFER IS
BEING MADE PURSUANT TO CLAUSE (C) OR (E) ABOVE, PRIOR TO SUCH TRANSFER,
THE HOLDER WILL BE REQUIRED TO FURNISH TO THE TRUSTEE AND ISSUER SUCH
CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS ANY OF THEM MAY
REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO
AN EXEMPTION FROM OR IN A TRANSACTION NOT SUBJECT TO
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THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. 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."
(ii) Upon any sale or transfer of a Transfer Restricted Note
(including any Transfer Restricted Note represented by a Global Note) pursuant
to Rule 144 under the Securities Act, in the case of any Transfer Restricted
Note that is represented by a Global Note, the Registrar shall permit the Holder
thereof to exchange such Transfer Restricted Note for a certificated Note that
does not bear the legend set forth above and rescind any restriction on the
transfer of such Transfer Restricted Note, if the Holder certifies in writing to
the Registrar that its request for such exchange was made in reliance on Rule
144 (such certification to be in the form set forth on the reverse of the Note).
(iii) After a transfer of any Initial Securities or Private Exchange
Securities during the period of the effectiveness of and pursuant to a Shelf
Registration Statement with respect to such Initial Securities or Private
Exchange Securities, as the case may be, all requirements pertaining to legends
on such Initial Securities or such Private Exchange Notes will cease to apply,
but the requirements requiring such Initial Notes or such Private Exchange Notes
issued to certain Holders be issued in global form will continue to apply, and
Initial Notes or Private Exchange Notes in global form without legends will be
available to the transferee of the Holder of such Initial Notes or Private
Exchange Notes upon exchange of such transferring Holder's Initial Notes or
Private Exchange Notes or directions to transfer such Holder's interest in the
Global Note, as applicable.
(iv) Upon the consummation of a Registered Exchange Offer with
respect to the Initial Notes pursuant to which Holders of such Initial Notes are
offered Exchange Notes in exchange for their Initial Notes, all requirements
pertaining to such Initial Notes that Initial Notes issued to certain Holders be
issued in global form will continue to apply and Initial Notes in global form
with the restricted securities legend set forth in Exhibit 1 hereto will be
available to Holders of such Initial Notes that do not exchange their Initial
Notes, and Exchange Notes in global form without the restriction securities
legend will be available to Holders that exchange such Initial Notes in such
Registered Exchange Offer.
(v) Upon the consummation of a Private Exchange with respect to the
Initial Notes pursuant to which Holders of such Initial Notes are offered
Private Exchange Notes in exchange for their Initial Notes, all requirements
pertaining to such Initial Notes that Initial Notes issued to certain Holders be
issued in global form will still apply, and Private Exchange Notes in global
form with the restricted securities legend set forth in Exhibit 1 hereto will be
available to Holders that exchange such Initial Notes in such Private Exchange.
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(c) Cancellation or Adjustment of Global Note. At such time as all
beneficial interests in a Global Note have either been exchanged for
certificated Notes, redeemed, repurchased or canceled, such Global Note shall be
returned to the Depositary for cancellation or retained and canceled by the
Trustee. At any time prior to such cancellation, if any beneficial interest in a
Global Note is exchanged for certificated Notes, redeemed, repurchased or
canceled, the principal amount of Notes represented by such Global Note shall be
reduced and an adjustment shall be made on the books and records of the Trustee
(if it is then the Notes Custodian for such Global Note) with respect to such
Global Note, by the Trustee or the Notes Custodian, to reflect such reduction.
(d) Obligations with Respect to Transfers and Exchanges of Notes. (i)
To permit registrations of transfers and exchanges, the Issuer shall execute and
the Trustee shall authenticate certificated Notes and Global Notes at the
Registrar's or any co-registrar's request, subject to terms and conditions of
this Indenture.
(ii) No service charge shall be made for any registration of transfer
or exchange, but the Issuer may require payment of a sum sufficient to cover any
transfer tax, assessments, or similar governmental charge payable in connection
therewith (other than any such transfer taxes, assessments or similar
governmental charge payable upon exchange or transfer pursuant to Sections 3.6,
4.7, 4.9 and Section 9.5 of this Indenture).
(iii) The Registrar or any co-registrar shall not be required to
register the transfer of or exchange of (a) any certificated Note selected for
redemption in whole or in part pursuant to Article III of this Indenture, except
the unredeemed portion of any certificated Note being redeemed in part, or (b)
any Note for a period beginning 15 Business Days before the mailing of a notice
of an offer to repurchase or redeem Notes or 15 Business Days before an interest
payment date.
(iv) Prior to the due presentation for registration of transfer of
any Note, the Issuer, the Trustee, the Paying Agent, the Registrar or any
co-registrar may deem and treat the person in whose name a Note is registered as
the absolute owner of such Note for the purpose of receiving payment of
principal of and interest on such Note and for all other purposes whatsoever,
whether or not such Note is overdue, and none of the Issuer, the Trustee, the
Paying Agent, the Registrar or any co-registrar shall be affected by notice to
the contrary.
(v) All Notes issued upon any transfer or exchange pursuant to the
terms of this Indenture shall evidence the same debt and shall be entitled to
the same benefits under this Indenture as the Notes surrendered upon such
transfer or exchange.
(e) No Obligation of the Trustee or the Issuer. (i) The Trustee and
the Issuer shall have no responsibility or obligation to any beneficial owner of
a Global Note, a
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member of, or a participant in the Depositary or other Person with respect to
the accuracy of the records of the Depositary or its nominee or of any
participant or member thereof, with respect to any ownership interest in the
Notes or with respect to the delivery to any participant, member, beneficial
owner or other Person (other than the Depositary) of any notice (including any
notice of redemption) or the payment of any amount, under or with respect to
such Notes. All notices and communications to be given to the Holders and all
payments to be made to Holders under the Notes shall be given or made only to or
upon the order of the registered Holders (which shall be the Depositary or its
nominee in the case of a Global Note). The rights of beneficial owners in any
Global Note shall be exercised only through the Depositary subject to the
applicable rules and procedures of the Depositary. The Trustee and the Issuer
may rely and shall be fully protected in relying upon information furnished by
the Depositary with respect to its members, participants and any beneficial
owners.
(ii) The Trustee and the Issuer shall have no obligation or duty to
monitor, determine or inquire as to compliance with any restrictions on transfer
imposed under this Indenture or under applicable law with respect to any
transfer of any interest in any Note (including any transfers between or among
Depositary participants, members or beneficial owners in any Global Note) other
than to require delivery of such certificates and other documentation or
evidence as are expressly required by, and to do so if and when expressly
required by, the terms of this Indenture, and to examine the same to determine
substantial compliance as to form with the express requirements hereof.
2.4. Certificated Notes. (a) A Global Note deposited with the
Depositary or with the Trustee as custodian for the Depositary pursuant to
Section 2.1 shall be transferred to the beneficial owners thereof in the form of
certificated Notes in an aggregate principal amount at maturity equal to the
principal amount at maturity of such Global Note, in exchange for such Global
Note, only if such transfer complies with Section 2.3 and (i) the Depositary
notifies the Issuer that it is unwilling or unable to continue as Depositary for
such Global Note or if at any time such Depositary ceases to be a "clearing
agency" registered under the Exchange Act and a successor depositary is not
appointed by the Issuer within 90 days of such notice, or (ii) an Event of
Default has occurred and is continuing or (iii) the Issuer, in its sole
discretion, notifies the Trustee in writing that it elects to cause the issuance
of certificated Notes under this Indenture.
(b) Any Global Note that is transferable to the beneficial owners
thereof pursuant to this Section shall be surrendered by the Depositary to the
Trustee, to be so transferred, in whole or from time to time in part, without
charge, and the Trustee shall authenticate and deliver, upon such transfer of
each portion of such Global Note, an equal aggregate principal amount at
maturity of certificated Initial Notes of authorized denominations. Any portion
of a Global Note transferred pursuant to this Section shall be
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executed, authenticated and delivered only in denominations of $1,000 and any
integral multiple thereof and registered in such names as the Depositary shall
direct. Any certificated Initial Note delivered in exchange for an interest in
the Global Note shall, except as otherwise provided by Section 2.3(d), bear the
restricted securities legend set forth in Exhibit 1 hereto.
(c) Subject to the provisions of Section 2.4(b), the registered
Holder of a Global Note may grant proxies and otherwise authorize any Person,
including Agent Members and Persons that may hold interests through Agent
Members, to take any action which a Holder is entitled to take under this
Indenture or the Notes.
(d) In the event of the occurrence of any of the events specified in
Section 2.4(a), the Issuer will promptly make available to the Trustee a
reasonable supply of certificated Notes in definitive, fully registered form
without interest coupons.
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EXHIBIT 1
TO RULE 144A/REGULATION S
APPENDIX
[FORM OF FACE OF INITIAL NOTE]
[Global Notes Legend]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), NEW YORK, NEW
YORK, TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR
PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR
SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE,
BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH
SUCCESSOR'S NOMINEES, AND TRANSFERS OF PORTIONS OF THIS GLOBAL NOTE SHALL BE
LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE
INDENTURE REFERRED TO ON THE REVERSE HEREOF.
[Restricted Securities Legend]
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED OR
SOLD WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S.
PERSONS, EXCEPT AS SET FORTH BELOW. BY ITS ACQUISITION HEREOF, THE HOLDER AGREES
THAT (1) IT WILL NOT PRIOR TO THE DATE (THE "RESALE RESTRICTION TERMINATION
DATE") THAT IS TWO YEARS AFTER THE LATER OF THE ORIGINAL ISSUANCE OF THIS NOTE
AND THE LAST DATE ON WHICH ISSUER, OR ANY AFFILIATE OF ISSUER, WAS THE OWNER OF
THIS NOTE (OR ANY
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PREDECESSOR OF THIS NOTE), RESELL OR OTHERWISE TRANSFER THIS NOTE EXCEPT (A) TO
ISSUER OR ANY SUBSIDIARY THEREOF, (B) INSIDE THE UNITED STATES TO A QUALIFIED
INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (C)
INSIDE THE UNITED STATES TO AN INSTITUTIONAL ACCREDITED INVESTOR WITHIN THE
MEANING OF SUBPARAGRAPH (a)(1), (2), (3) OR (7) OF RULE 501 UNDER THE SECURITIES
ACT THAT, PRIOR TO SUCH TRANSFER, FURNISHES (OR HAS FURNISHED ON ITS BEHALF BY A
U.S. BROKER-DEALER) TO THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN
REPRESENTATIONS AND AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER OF THIS
NOTE (THE FORM OF WHICH LETTER CAN BE OBTAINED FROM THE TRUSTEE), (D) OUTSIDE
THE UNITED STATES IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904 UNDER
THE SECURITIES ACT, (E) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT OR (F) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND (2) WILL GIVE TO EACH PERSON
TO WHOM THIS NOTE IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS
LEGEND. IN CONNECTION WITH ANY TRANSFER OF THIS NOTE PRIOR TO THE RESALE
RESTRICTION TERMINATION DATE, IF THE PROPOSED TRANSFER IS BEING MADE PURSUANT TO
CLAUSE (C) OR (E) ABOVE, PRIOR TO SUCH TRANSFER, THE HOLDER WILL BE REQUIRED TO
FURNISH TO THE TRUSTEE AND THE ISSUER SUCH CERTIFICATIONS, LEGAL OPINIONS OR
OTHER INFORMATION AS ANY OF THEM MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH
TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM OR IN A TRANSACTION NOT
SUBJECT TO THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. 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.
[Original Issue Discount Legend]
THIS NOTE WAS ISSUED WITH ORIGINAL ISSUE DISCOUNT, FOR PURPOSES OF
SECTIONS 1272, 1273 AND 0000 XX XXX XXXXXX XXXXXX INTERNAL REVENUE CODE OF 1986,
AS AMENDED, THE ISSUE PRICE OF THIS NOTE IS $579.42 OF ITS PRINCIPAL AMOUNT AT
MATURITY, THE AMOUNT OF ORIGINAL ISSUE DISCOUNT IS $420.58 PER $1,000 OF
PRINCIPAL AMOUNT AT MATURITY, THE ISSUE DATE IS APRIL 20, 1999 AND THE YIELD TO
MATURITY IS 11 1/4%.
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SPECTRASITE HOLDINGS, INC.
No. Principal Amount at Maturity $
--- -------------
CUSIP NO.
---------
11 1/4% Senior Discount Note due 2009
SpectraSite Holdings, Inc., a Delaware corporation, promises to pay
to __________, or registered assigns, the principal sum of ____________________
Dollars on April 15, 2009.
Interest Payment Dates: April 15 and October 15.
Record Dates: April 1 and October 1.
Additional provisions of this Note are set forth on the other side of
this Note.
Dated: SPECTRASITE HOLDINGS, INC.
By:
By:
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
This is one of the Notes referred to in the Indenture.
UNITED STATES TRUST COMPANY OF NEW YORK
as Trustee
By:
Authorized Signatory
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[FORM OF REVERSE SIDE OF INITIAL NOTE]
(Reverse of Note)
11 1/4% Senior Discount Note due 2009
1. Interest
SpectraSite Holdings, Inc., a Delaware corporation (such corporation,
and its successors and assigns under the Indenture hereinafter referred to,
being herein called the "Issuer"), promises to pay interest on the principal
amount of this Note at the rate per annum shown above; provided, however, that
if a Registration Default (as defined in the Registration Rights Agreement)
occurs, additional cash interest will accrue on this Note at a rate of 0.50% per
annum from and including the date on which any such Registration Default shall
occur to but excluding the date on which all Registration Defaults have been
cured, calculated on the Accreted Value of this Note as of the date on which
such interest is payable; provided, however, that in no event shall the
aggregate amount of such additional interest exceed 0.50% per annum. Such
interest is payable in addition to any other interest payable from time to time
with respect to this Note. The Trustee will not be deemed to have notice of a
Registration Default until it shall have received actual notice of such
Registration Default.
Until April 15, 2004, the Notes will accrue at a rate of 11 1/4% per
annum and be compounded semi-annually on each Semi-Annual Accrual Date with
respect to the Notes, but, except as described herein, will not be payable in
cash. Interest on the Accreted Value of each Note as of April 15, 2004 will
accrue at the same rate but will be paid semi-annually commencing October 15,
2004, to Holders of record at the close of business on the April 1 or October 1
immediately preceding the interest payment date of April 15 and October 15 of
each year. The Issuer shall pay interest on overdue principal at 1% per annum in
excess of the rate borne by the Notes to the extent lawful. Interest will be
computed on the basis of a 360-day year of twelve 30-day months.
2. Method of Payment
By at least 11:00 a.m. (New York City time) on the date on which any
principal of or interest on any Note is due and payable, the Issuer shall
irrevocably deposit with the Trustee or the Paying Agent money sufficient to pay
such principal and/or interest. The Issuer will pay interest (except defaulted
interest) to the Persons who are registered Holders of Notes at the close of
business on the April 1 or October 1 next preceding the interest payment date
even if Notes are cancelled, repurchased or redeemed after the record date and
on or before the interest payment date. Holders must surrender Notes to a Paying
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Agent to collect principal payments. The Issuer will pay principal and interest
in money of the United States that at the time of payment is legal tender for
payment of public and private debts. However, the Issuer may pay principal and
interest by check payable in such money. It may mail an interest check to a
Holder's registered address.
3. Paying Agent and Registrar
Initially, United States Trust Company of New York, a national
banking association (the "Trustee"), will act as Paying Agent and Registrar. The
Issuer may appoint and change any Paying Agent, Registrar or co-registrar
without notice to any Noteholder. The Issuer or any of its domestically
incorporated Wholly Owned Subsidiaries may act as Paying Agent.
4. Indenture
The Issuer issued the Notes under an Indenture dated as of April 20,
1999 (as it may be amended or supplemented from time to time in accordance with
the terms thereof, the "Indenture"), between the Issuer and the Trustee. The
terms of the Notes include those stated in the Indenture and those made part of
the Indenture by reference to the Trust Indenture Act of 1939, as amended (15
U.S.C. Sections 77aaa-77bbbb) as in effect on the date of the Indenture (the
"TIA"). Capitalized terms used herein and not defined herein have the meanings
ascribed thereto in the Indenture. The Notes are subject to all such terms, and
Noteholders are referred to the Indenture and the TIA for a statement of those
terms.
The Notes are unsecured senior obligations of the Issuer limited to
$586,800,000 aggregate principal amount at maturity (subject to Section 2.7 of
the Indenture), all of which are being offered on the Issue Date.
This Note is one of the Initial Notes referred to in the Indenture.
The Notes include the Initial Notes and any Private Exchange Notes and Exchange
Notes issued in exchange for the Initial Notes pursuant to the Indenture and the
Registration Rights Agreement. The Initial Notes, the Private Exchange Notes and
the Exchange Notes are treated as a single class of securities under the
Indenture. The Indenture imposes certain limitations on the Incurrence of
Indebtedness by the Issuer and its Restricted Subsidiaries, the payment of
dividends and other distributions on the Capital Stock of the Issuer and its
Restricted Subsidiaries, the purchase or redemption of Capital Stock of the
Issuer and Capital Stock of such Restricted Subsidiaries, certain purchases or
redemptions of Subordinated Obligations, the sale or transfer of assets and
Capital Stock of Restricted Subsidiaries, the issuance or sale of Capital Stock
of Restricted Subsidiaries, the investments of the Issuer and its Subsidiaries
and transactions with Affiliates. In addition, the Indenture limits the ability
of the Issuer and its Restricted Subsidiaries to restrict distributions and
dividends from
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Restricted Subsidiaries.
5. Redemption
Except as set forth in the following paragraph, the Notes will not be
redeemable at the option of the Issuer prior to April 15, 2004. Thereafter, the
Notes will be redeemable, at the Issuer's option, in whole or in part, at any
time or from time to time, upon not less than 30 nor more than 60 days' prior
notice mailed by first-class mail to each Holder's registered address, at the
following redemption prices (expressed as a percentage of the Accreted Value),
plus accrued and unpaid interest, if any, on such Accreted Value to the
redemption date (subject to the right of Holders of record on the relevant
record date to receive interest due on the relevant interest payment date), if
redeemed during the 12-month period commencing on April 15 of the years set
forth below:
Period Redemption Price
------ ----------------
2004...................................... 105.625%
2005...................................... 103.750%
2006...................................... 101.875%
2007 and thereafter....................... 100.000%
In addition, at any time and from time to time prior to April 15,
2002, the Issuer may redeem in the aggregate up to 35% of the aggregate
principal amount at maturity of the Notes with the proceeds of one or more
Equity Offerings, at a redemption price (expressed as a percentage of the
Accreted Value thereof) of 111.25% plus accrued and unpaid interest, if any, to
the redemption date (subject to the right of Holders of record on the relevant
record date to receive interest due on the relevant interest payment date);
provided, however, that at least 65% of the aggregate principal amount at
maturity of the Notes must remain outstanding after each such redemption
(excluding Notes held by the Issuer or any of its Subsidiaries); provided
further, that such redemption shall occur within 90 days of the date of closing
of such Equity Offering.
6. Notice of Redemption
Notice of redemption will be mailed at least 30 days but not more
than 60 days before the redemption date by first-class mail to each Holder of
Notes to be redeemed at his registered address. Notes in denominations of
principal amount larger than $1,000 may be redeemed in part but only in whole
multiples of $1,000. If money sufficient to pay the redemption price of and
accrued and unpaid interest on all Notes (or portions thereof) to be redeemed on
the redemption date is deposited with the Paying Agent on or before the
redemption date and certain other conditions are satisfied, on and after such
date interest
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ceases to accrue on such Notes (or such portions thereof) called
for redemption.
7. Put Provisions
Upon a Change of Control, any Holder of Notes will have the right to
cause the Issuer to repurchase all or any part of the Notes of such Holder at a
repurchase price equal to 101% of the Accreted Value thereof as of the date of
repurchase, plus accrued and unpaid interest, if any, to the date of repurchase
as provided in, and subject to the terms of, the Indenture.
8. Registration Rights
The Issuer is party to a Registration Rights Agreement, dated as of
April 20, 1999, among the Issuer, CIBC Xxxxxxxxxxx Corp., Credit Suisse First
Boston Corporation, Xxxxxx Xxxxxxx & Co. Incorprated, BancBoston Xxxxxxxxx
Xxxxxxxx Inc. and TD Securities (USA) Inc. pursuant to which it is obligated to
pay Additional Interest (as defined therein) upon the occurrence of certain
Registration Defaults (as defined therein).
9. Denominations; Transfer; Exchange
The Notes are in registered form without coupons in denominations of
principal amount of $1,000 and whole multiples of $1,000. A Holder may register,
transfer or exchange Notes in accordance with the Indenture. The Registrar may
require a Holder, among other things, to furnish appropriate endorsements or
transfer documents and to pay any taxes and fees required by law or permitted by
the Indenture. The Registrar need not register the transfer of or exchange (i)
any Notes selected for redemption (except, in the case of a Note to be redeemed
in part, the portion of the Note not to be redeemed) for a period beginning 15
business days before a selection of Notes to be redeemed and ending on the date
of such selection or (ii) any Notes for a period beginning 15 business days
before an interest payment date and ending on such interest payment date.
10. Persons Deemed Owners
The registered holder of this Note may be treated as the owner of it
for all purposes.
11. Unclaimed Money
If money for the payment of principal or interest remains unclaimed
for one year after the date of payment of principal and interest, the Trustee or
Paying Agent shall pay the money back to the Issuer at its request unless an
abandoned property law designates another Person. After any such payment,
Holders entitled to the money must look only to the
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Issuer and not to the Trustee for payment.
12. Defeasance
Subject to certain conditions set forth in the Indenture, the Issuer
at any time may terminate some or all of its obligations under the Notes and the
Indenture if the Issuer deposits with the Trustee money or U.S. Government
Obligations for the payment of principal of and interest on the Notes to
redemption or maturity, as the case may be.
13. Amendment, Waiver
Subject to certain exceptions set forth in the Indenture, (i) the
Indenture or the Notes may be amended with the written consent of the Holders of
at least a majority in principal amount at maturity of the outstanding Notes and
(ii) any default or noncompliance with any provision may be waived with the
written consent of the Holders of a majority in principal amount at maturity of
the outstanding Notes. Subject to certain exceptions set forth in the Indenture,
without the consent of any Noteholder, the Issuer and the Trustee may amend the
Indenture or the Notes to cure any ambiguity, omission, defect or inconsistency,
or to comply with Article V of the Indenture, or to provide for uncertificated
Notes in addition to or in place of certificated Notes, or to add guarantees
with respect to the Notes or to secure the Notes, or to add additional covenants
of or surrender rights and powers conferred on the Issuer, or to make any change
that does not materially and adversely affect the rights of any Noteholder, or
to comply with any request of the SEC in connection with qualifying the
Indenture under the Act.
14. Defaults and Remedies
Under the Indenture, Events of Default include (i) a default in any
payment of interest on any Note when due, continued for 30 days, (ii) a default
in the payment of principal of any Note when due at its Stated Maturity, upon
optional or mandatory redemption, upon required repurchase, upon declaration or
otherwise, (iii) the failure by the Issuer to comply with its obligations under
Article V of the Indenture, (iv) the failure by the Issuer to comply for 30 days
after notice with any of its obligations under the covenants described under
Section 4.2, 4.3, 4.4, 4.5, 4.6, 4.7, 4.8, 4.9, 4.10, 4.11 or 4.12 of the
Indenture (in each case, other than a failure to purchase Notes), (v) the
failure by the Issuer to comply for 60 days after notice with its other
agreements contained in the Indenture, (vi) the failure by the Issuer or any
Significant Subsidiary of the Issuer to pay any Indebtedness within any
applicable grace period after final maturity or the acceleration of any such
Indebtedness by the holders thereof because of a default if the total amount of
such Indebtedness unpaid or accelerated exceeds $10.0 million or its foreign
currency equivalent, (vii) certain events of bankruptcy, insolvency or
reorganization of the Issuer or any Significant Subsidiary of the
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Issuer or (viii) any final judgment or decree for the payment of money in excess
of $10.0 million (net of any amounts with respect to which a creditworthy
insurance company has acknowledged full liability (subject to any deductible
amounts of less than $10.0 million required to be paid by the Issuer or the
Significant Subsidiary of the Issuer in accordance with the applicable insurance
policy)) is rendered against the Issuer or any Significant Subsidiary of the
Issuer and either (A) an enforcement proceeding has been commenced by any
creditor upon such judgment or decree or (B) such judgment or decree remains
unpaid and outstanding for a period of 60 days following such judgment and is
not discharged, waived or stayed within 10 days after notice. If an Event of
Default occurs and is continuing, the Trustee or the Holders of at least 25% in
aggregate principal amount of the Notes may declare all the Notes to be due and
payable immediately. Certain events of bankruptcy or insolvency are Events of
Default which will result in the Notes being due and payable immediately upon
the occurrence of such Events of Default.
Noteholders may not enforce the Indenture or the Notes except as
provided in the Indenture. The Trustee may refuse to enforce the Indenture or
the Notes unless it receives reasonable indemnity or security. Subject to
certain limitations, Holders of a majority in principal amount of the Notes may
direct the Trustee in its exercise of any trust or power. The Trustee may
withhold from Noteholders notice of any continuing Default or Event of Default
(except a Default or Event of Default in payment of Principal or interest) if it
determines that withholding notice is not opposed to their interest.
15. Trustee Dealings with the Issuer
Subject to certain limitations set forth in the Indenture, the
Trustee under the Indenture, in its individual or any other capacity, may become
the owner or pledgee of Notes and may otherwise deal with and collect
obligations owed to it by the Issuer or its Affiliates and may otherwise deal
with the Issuer or its Affiliates with the same rights it would have if it were
not Trustee.
16. No Recourse Against Others
No director, officer, employee, incorporator or stockholder of the
Issuer, as such, shall have any liability for any obligations of the Issuer
under the Notes, the Indenture or for any claim based on, in respect of, or by
reason of such obligations or their creation. Each Holder of Notes by accepting
a Note waives and releases all such liability. This waiver and release are part
of the consideration for issuance of the Notes.
17. Authentication
This Note shall not be valid until an authorized signatory of the
Trustee (or an
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authenticating agent acting on its behalf) manually signs the certificate of
authentication on the other side of this Note.
18. Abbreviations
Customary abbreviations may be used in the name of a Noteholder or an
assignee, such as TEN COM (=tenants in common), TEN ENT (=tenants by the
entirety), JT TEN (=joint tenants with rights of survivorship and not as tenants
in common), CUST (=custodian) and U/G/M/A (=Uniform Gift to Minors Act).
19. CUSIP Numbers
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures the Issuer has caused CUSIP numbers to be
printed on the Notes and has directed the Trustee to use CUSIP numbers in
notices of redemption as a convenience to Noteholders. No representation is made
as to the accuracy of such numbers either as printed on the Notes or as
contained in any notice of redemption and reliance may be placed only on the
other identification numbers placed thereon.
20. GOVERNING LAW
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF NEW YORK BUT WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES
OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER
JURISDICTION WOULD BE REQUIRED THEREBY.
The Issuer will furnish to any Noteholder upon written request and
without charge to the Noteholder a copy of the Indenture which has in it the
text of this Note in larger type. Requests may be made to: SpectraSite Holdings,
Inc., 0000 Xxxxxxx Xxxxxxx, Xxxxx 000, Xxxx, Xxxxx Xxxxxxxx 00000, Attention:
Chief Financial Officer.
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ASSIGNMENT FORM
To assign this Note, fill in the form below:
I or we assign and transfer this Note to:
(Print or type assignee's name, address and zip code)
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint
agent to transfer this Note on the books of the Issuer. The agent may substitute
another to act for him.
Date: Your Signature:
Sign exactly as your name appears on
the other side of this Note.
Signature Guarantee:
(Signature must be guaranteed by a participant in a
recognized Signature Guarantee Medallion Program or other
signature guarantor program reasonably acceptable to the
Trustee)
In connection with any transfer or exchange of any of the Notes evidenced by
this certificate occurring prior to the date that is two years after the later
of the date of original issuance of such Notes and the last date, if any, on
which such Notes were owned by the Issuer or any Affiliate of the Issuer, the
undersigned confirms that such Notes are being transferred:
CHECK ONE BOX BELOW:
(1) to the Issuer; or
(2) pursuant to an effective registration statement under the
Securities Act of 1933; or
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(3) inside the United States to a "qualified institutional buyer" (as
defined in Rule 144A under the Securities Act of 1933) that
purchases for its own account or for the account of a qualified
institutional buyer to whom notice is given that such transfer is
being made in reliance on Rule 144A, in each case pursuant to and
in compliance with Rule 144A under the Securities Act of 1933; or
(4) outside the United States in an offshore transaction within the
meaning of Regulation S under the Securities Act in compliance with
Rule 904 under the Securities Act of 1933; or
(5) pursuant to another available exemption from registration provided
by Rule 144 under the Securities Act of 1933.
Unless one of the boxes is checked, the Trustee will refuse to register any of
the Notes evidenced by this certificate in the name of any Person other than the
registered holder thereof; provided, however, that if box (4) or (5) is checked,
the Trustee may require, prior to registering any such transfer of the Notes,
such legal opinions, certifications and other information as the Issuer has
reasonably requested to confirm that such transfer is being made pursuant to an
exemption from, or in a transaction not subject to, the registration
requirements of the Securities Act of 1933, as amended, such as the exemption
provided by Rule 144 under such Act.
Date: Your Signature:
Sign exactly as your name appears on
the other side of this Note.
Signature Guarantee:
(Signature must be guaranteed by a participant in a
recognized Signature Guarantee Medallion Program or other
signature guarantor program reasonably acceptable to the
Trustee)
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TO BE COMPLETED BY PURCHASER IF (3) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing this
Note for its own account or an account with respect to which it exercises sole
investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act of
1933, as amended, and is aware that the sale to it is being made in reliance on
Rule 144A and acknowledges that it has received such information regarding the
Issuer as the undersigned has requested pursuant to Rule 144A or has determined
not to request such information and that it is aware that the transferor is
relying upon the undersigned's foregoing representations in order to claim the
exemption from registration provided by Rule 144A.
Date:
NOTICE: To be executed by an
executive officer
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Issuer
pursuant to Section 4.7 or 4.9 of the Indenture, check the appropriate box:
Section 4.7
Section 4.9
If you want to elect to have only part of this Note purchased by
the Issuer pursuant to Section 4.7 or 4.9 of the Indenture, state the amount you
elect to have purchased (must be integral multiple of $1,000): $_______________
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[TO BE ATTACHED TO GLOBAL NOTES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL NOTE
The following increases or decreases in this Global Note have been made:
Principal Amount
Amount of decrease in Amount of increase in at Maturity of this
Principal Amount at Principal Amount at Global Note Signature of authorized
Maturity of this Global Maturity of this Global following such officer of Trustee or
Date of Exchange Note Note decrease or increase Notes Custodian
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EXHIBIT A
[FORM OF FACE OF EXCHANGE NOTE
[OR PRIVATE EXCHANGE NOTE]]
1
2 [If the Security is a Private Exchange Security issued in a Private
Exchange to an Initial Purchaser holding an unsold portion of its initial
allotment, add the Restricted Securities Legend from Exhibit 1 to Appendix A
and replace the Assignment Form included in such Exhibit 1.]
----------------
(1) [If the Security is to be issued in global form add the Global Securities
Legend from Exhibit 1 to Appendix A and the attachment from such Exhibit
1 captioned "[TO BE ATTACHED TO GLOBAL SECURITIES] - SCHEDULE OF
INCREASES OR DECREASES IN GLOBAL SECURITY."]
(2) [If the Security is a Private Exchange Security issued in a Private
Exchange to an Initial Purchaser holding an unsold portion of its initial
allotment, add the Restricted Securities Legend from Exhibit 1 to Appendix
A and replace the Assignment Form included in such Exhibit 1.]
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2
3 [Add the Original Issue Discount Legend from Exhibit 1 to Appendix A.]
----------------
(3) [Add the Original Issue Discount Legend from Exhibit 1 to Appendix A.]
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3
SPECTRASITE HOLDINGS INC.
No. Principal Amount at Maturity $
--- -----------
CUSIP NO.
--------
11 1/4% Senior Discount Note Due 2009
SpectraSite Holdings, Inc., a Delaware corporation, promises to pay
to ________ _______, or registered assigns, the principal sum of
___________________ Dollars on April 15, 2009.
Interest Payment Dates: April 15 and October 15
Record Dates: April 1 and October 1.
Additional provisions of this Note are set forth on the other side
of this Note.
Dated: SPECTRASITE HOLDINGS, INC.
By:
By:
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
This is one of the Notes
referred to in the Indenture.
UNITED STATES TRUST COMPANY OF NEW YORK
as Trustee
By:
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Authorized Signatory
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[FORM OF REVERSE SIDE OF EXCHANGE NOTE
[OR PRIVATE EXCHANGE NOTE]]
11 1/4% Senior Discount Note due 2009
1. Interest
SpectraSite Holdings, Inc., a Delaware corporation (such
corporation, and its successors and assigns under the Indenture hereinafter
referred to, being herein called the "Issuer"), promises to pay interest on the
principal amount of this Note at the rate per annum shown above[; provided,
however, that if a Registration Default (as defined in the Registration Rights
Agreement) occurs, additional cash interest will accrue on this Note at a rate
of 0.50% per annum from and including the date on which any such Registration
Default shall occur to but excluding the date on which all Registration Defaults
have been cured, calculated on the Accreted Value of this Note as of the date on
which such interest is payable; provided, however, that in no event shall the
aggregate amount of such additional interest exceed 0.50% per annum. Such
interest is payable in addition to any other interest payable from time to time
with respect to this Note. The Trustee will not be deemed to have notice of a
Registration Default until it shall have received actual notice of such
Registration Default].4
Insert if at the time of issuance of the Exchange Security or Private
Exchange Security (as the case may be) neither the Registered Exchange Offer has
been consummated nor a Shelf Registration Statement has been declared effective
in accordance with the Registration Rights Agreement.
--------------
4 Insert if at the time of issuance of the Exchange Security or Private
Exchange Security (as the case may be) neither the Registered Exchange Offer has
been consummated nor a Shelf Registration Statement has been declared effective
in accordance with the Registration Rights Agreement.
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4
Until April 15, 2004, the Notes will accrue at a rate of 11 1/4%
per annum and be compounded semi-annually on each Semi-Annual Accrual Date with
respect to the Notes, but, except as described herein, will not be payable in
cash. Interest on the Accreted Value of each Note as of April 15, 2004 will
accrue at the same rate but will be paid semi-annually commencing October 15,
2004, to Holders of record at the close of business on the April 1 or October 1
immediately preceding the interest payment date of April 15 and October 15 of
each year. The Issuer shall pay interest on overdue principal at 1% per annum in
excess of the rate borne by the Notes to the extent lawful. Interest will be
computed on the basis of a 360-day year of twelve 30-day months.
2. Method of Payment
By at least 11:00 a.m. (New York City time) on the date on which
any principal of or interest on any Note is due and payable, the Issuer shall
irrevocably deposit with the Trustee or the Paying Agent money sufficient to pay
such principal and/or interest. The Issuer will pay interest (except defaulted
interest) to the Persons who are registered Holders of Notes at the close of
business on the April 1 or October 1 next preceding the interest payment date
even if Notes are cancelled, repurchased or redeemed after the record date and
on or before the interest payment date. Holders must surrender Notes to a Paying
Agent to collect principal payments. The Issuer will pay principal and interest
in money of the United States that at the time of payment is legal tender for
payment of public and private debts. However, the Issuer may pay principal and
interest by check payable in such money. It may mail an interest check to a
Holder's registered address.
3. Paying Agent and Registrar
Initially, United States Trust Company of New York, a national
banking association (the "Trustee"), will act as Paying Agent and Registrar. The
Issuer may appoint and change any Paying Agent, Registrar or co-registrar
without notice to any Noteholder. The Issuer or any of its domestically
incorporated Wholly Owned Subsidiaries may act as Paying Agent.
4. Indenture
The Issuer issued the Notes under an Indenture dated as of April
20, 1999 (as it may be amended or supplemented from time to time in accordance
with the terms thereof, the "Indenture"), between the Issuer and the Trustee.
The terms of the Notes include those stated in the Indenture and those made part
of the Indenture by reference to the Trust Indenture Act of 1939, as amended (15
U.S.C. Sections 77aaa-77bbbb) as in effect on the date of the Indenture
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(the "TIA"). Capitalized terms used herein and not defined herein have the
meanings ascribed thereto in the Indenture. The Notes are subject to all such
terms, and Noteholders are referred to the Indenture and the TIA for a statement
of those terms.
The Notes are unsecured senior obligations of the Issuer limited to
$586,800,000 aggregate principal amount at maturity (subject to Section 2.7 of
the Indenture), all of which are being offered on the Issue Date.
This Note is one of the Exchange Notes referred to in the
Indenture. The Notes include the Initial Notes and any Private Exchange Notes
and Exchange Notes issued in exchange for the Initial Notes pursuant to the
Indenture and the Registration Rights Agreement. The Initial Notes, the Private
Exchange Notes and the Exchange Notes are treated as a single class of
securities under the Indenture. The Indenture imposes certain limitations on the
Incurrence of Indebtedness by the Issuer and its Restricted Subsidiaries, the
payment of dividends and other distributions on the Capital Stock of the Issuer
and its Restricted Subsidiaries, the purchase or redemption of Capital Stock of
the Issuer and Capital Stock of such Restricted Subsidiaries, certain purchases
or redemptions of Subordinated Obligations, the sale or transfer of assets and
Capital Stock of Restricted Subsidiaries, the issuance or sale of Capital Stock
of Restricted Subsidiaries, the investments of the Issuer and its Subsidiaries
and transactions with Affiliates. In addition, the Indenture limits the ability
of the Issuer and its Restricted Subsidiaries to restrict distributions and
dividends from Restricted Subsidiaries.
5. Redemption
Except as set forth in the following paragraph, the Notes will not
be redeemable at the option of the Issuer prior to April 15, 2004. Thereafter,
the Notes will be redeemable, at the Issuer's option, in whole or in part, at
any time or from time to time, upon not less than 30 nor more than 60 days'
prior notice mailed by first-class mail to each Holder's registered address, at
the following redemption prices (expressed as a percentage of the Accreted
Value), plus accrued and unpaid interest, if any, on such Accreted Value to the
redemption date (subject to the right of Holders of record on the relevant
record date to receive interest due on the relevant interest payment date), if
redeemed during the 12-month period commencing on April 15 of the years set
forth below:
Period Redemption Price
------ ----------------
2004.................................... 105.625%
2005.................................... 103.750%
2006.................................... 101.875%
2007 and thereafter..................... 100.000%
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In addition, at any time and from time to time prior to April 15,
2002, the Issuer may redeem in the aggregate up to 35% of the aggregate
principal amount at maturity of the Notes with the proceeds of one or more
Equity Offerings, at a redemption price (expressed as a percentage of the
Accreted Value thereof) of 111.25% plus accrued and unpaid interest, if any, to
the redemption date (subject to the right of Holders of record on the relevant
record date to receive interest due on the relevant interest payment date);
provided, however, that at least 65% of the aggregate principal amount at
maturity of the Notes must remain outstanding after each such redemption
(excluding Notes held by the Issuer or any of its Subsidiaries); provided
further, that such redemption shall occur within 90 days of the date of closing
of such Equity Offering.
6. Notice of Redemption
Notice of redemption will be mailed at least 30 days but not more
than 60 days before the redemption date by first-class mail to each Holder of
Notes to be redeemed at his registered address. Notes in denominations of
principal amount larger than $1,000 may be redeemed in part but only in whole
multiples of $1,000. If money sufficient to pay the redemption price of and
accrued and unpaid interest on all Notes (or portions thereof) to be redeemed on
the redemption date is deposited with the Paying Agent on or before the
redemption date and certain other conditions are satisfied, on and after such
date interest ceases to accrue on such Notes (or such portions thereof) called
for redemption.
7. Put Provisions
Upon a Change of Control, any Holder of Notes will have the right
to cause the Issuer to repurchase all or any part of the Notes of such Holder at
a repurchase price equal to 101% of the Accreted Value thereof as of the date of
repurchase, plus accrued and unpaid interest, if any, to the date of repurchase
as provided in, and subject to the terms of, the Indenture.
8. Denominations; Transfer; Exchange
The Notes are in registered form without coupons in denominations
of principal amount of $1,000 and whole multiples of $1,000. A Holder may
register, transfer or exchange Notes in accordance with the Indenture. The
Registrar may require a Holder, among other things, to furnish appropriate
endorsements or transfer documents and to pay any taxes and fees required by law
or permitted by the Indenture. The Registrar need not register the transfer of
or exchange (i) any Notes selected for redemption (except, in the case of a Note
to be redeemed in part, the portion of the Note not to be redeemed) for a period
beginning 15 business days before a selection of Notes to be redeemed and ending
on the date of such
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selection or (ii) any Notes for a period beginning 15 business days before an
interest payment date and ending on suchinterest payment date.
9. Persons Deemed Owners
The registered holder of this Note may be treated as the owner of
it for all purposes.
10. Unclaimed Money
If money for the payment of principal or interest remains unclaimed
for one year after the date of payment of principal and interest, the Trustee or
Paying Agent shall pay the money back to the Issuer at its request unless an
abandoned property law designates another Person. After any such payment,
Holders entitled to the money must look only to the Issuer and not to the
Trustee for payment.
11. Defeasance
Subject to certain conditions set forth in the Indenture, the
Issuer at any time may terminate some or all of its obligations under the Notes
and the Indenture if the Issuer deposits with the Trustee money or U.S.
Government Obligations for the payment of principal of and interest on the Notes
to redemption or maturity, as the case may be.
12. Amendment, Waiver
Subject to certain exceptions set forth in the Indenture, (i) the
Indenture or the Notes may be amended with the written consent of the Holders of
at least a majority in principal amount at maturity of the outstanding Notes and
(ii) any default or noncompliance with any provision may be waived with the
written consent of the Holders of a majority in principal amount at maturity of
the outstanding Notes. Subject to certain exceptions set forth in the Indenture,
without the consent of any Noteholder, the Issuer and the Trustee may amend the
Indenture or the Notes to cure any ambiguity, omission, defect or inconsistency,
or to comply with Article V of the Indenture, or to provide for uncertificated
Notes in addition to or in place of certificated Notes, or to add guarantees
with respect to the Notes or to secure the Notes, or to add additional covenants
of or surrender rights and powers conferred on the Issuer, or to make any change
that does not materially and adversely affect the rights of any Noteholder, or
to comply with any request of the SEC in connection with qualifying the
Indenture under the Act.
13. Defaults and Remedies
Under the Indenture, Events of Default include (i) a default in any
payment of
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interest on any Note when due, continued for 30 days, (ii) a default in the
payment of principal of any Note when due at its Stated Maturity, upon optional
or mandatory redemption, upon required repurchase, upon declaration or
otherwise, (iii) the failure by the Issuer to comply with its obligations under
Article V of the Indenture, (iv) the failure by the Issuer to comply for 30 days
after notice with any of its obligations under the covenants described under
Section 4.2, 4.3, 4.4, 4.5, 4.6, 4.7, 4.8, 4.9, 4.10, 4.11 or 4.12 of the
Indenture (in each case, other than a failure to purchase Notes), (v) the
failure by the Issuer to comply for 60 days after notice with its other
agreements contained in the Indenture, (vi) the failure by the Issuer or any
Significant Subsidiary of the Issuer to pay any Indebtedness within any
applicable grace period after final maturity or the acceleration of any such
Indebtedness by the holders thereof because of a default if the total amount of
such Indebtedness unpaid or accelerated exceeds $10.0 million or its foreign
currency equivalent, (vii) certain events of bankruptcy, insolvency or
reorganization of the Issuer or any Significant Subsidiary of the Issuer or
(viii) any final judgment or decree for the payment of money in excess of $10.0
million (net of any amounts with respect to which a creditworthy insurance
company has acknowledged full liability (subject to any deductible amounts of
less than $10.0 million required to be paid by the Issuer or the Significant
Subsidiary of the Issuer in accordance with the applicable insurance policy)) is
rendered against the Issuer or any Significant Subsidiary of the Issuer and
either (A) an enforcement proceeding has been commenced by any creditor upon
such judgment or decree or (B) such judgment or decree remains unpaid and
outstanding for a period of 60 days following such judgment and is not
discharged, waived or stayed within 10 days after notice. If an Event of Default
occurs and is continuing, the Trustee or the Holders of at least 25% in
aggregate principal amount of the Notes may declare all the Notes to be due and
payable immediately. Certain events of bankruptcy or insolvency are Events of
Default which will result in the Notes being due and payable immediately upon
the occurrence of such Events of Default.
Noteholders may not enforce the Indenture or the Notes except as
provided in the Indenture. The Trustee may refuse to enforce the Indenture or
the Notes unless it receives reasonable indemnity or security. Subject to
certain limitations, Holders of a majority in principal amount of the Notes may
direct the Trustee in its exercise of any trust or power. The Trustee may
withhold from Noteholders notice of any continuing Default or Event of Default
(except a Default or Event of Default in payment of Principal or interest) if it
determines that withholding notice is not opposed to their interest.
14. Trustee Dealings with the Issuer
Subject to certain limitations set forth in the Indenture, the
Trustee under the Indenture, in its individual or any other capacity, may become
the owner or pledgee of Notes and may otherwise deal with and collect
obligations owed to it by the Issuer or its Affiliates and may otherwise deal
with the Issuer or its Affiliates with the same rights it would have if it
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were not Trustee.
15. No Recourse Against Others
No director, officer, employee, incorporator or stockholder of the
Issuer, as such, shall have any liability for any obligations of the Issuer
under the Notes, the Indenture or for any claim based on, in respect of, or by
reason of such obligations or their creation. Each Holder of Notes by accepting
a Note waives and releases all such liability. This waiver and release are part
of the consideration for issuance of the Notes.
16. Authentication
This Note shall not be valid until an authorized signatory of the
Trustee (or an authenticating agent acting on its behalf) manually signs the
certificate of authentication on the other side of this Note.
17. Abbreviations
Customary abbreviations may be used in the name of a Noteholder or
an assignee, such as TEN COM (=tenants in common), TEN ENT (=tenants by the
entirety), JT TEN (=joint tenants with rights of survivorship and not as tenants
in common), CUST (=custodian) and U/G/M/A (=Uniform Gift to Minors Act).
18. CUSIP Numbers
Pursuant to a recommendation promulgated by the Committee on
Uniform Security Identification Procedures the Issuer has caused CUSIP numbers
to be printed on the Notes and has directed the Trustee to use CUSIP numbers in
notices of redemption as a convenience to Noteholders. No representation is made
as to the accuracy of such numbers either as printed on the Notes or as
contained in any notice of redemption and reliance may be placed only on the
other identification numbers placed thereon.
19. GOVERNING LAW
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF NEW YORK BUT WITHOUT GIVING EFFECT TO APPLICABLE
PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF
ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
The Issuer will furnish to any Noteholder upon written request and
without charge to the Noteholder a copy of the Indenture which has in it the
text of this Note in larger
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type. Requests may be made to: SpectraSite Holdings, Inc., 0000 Xxxxxxx Xxxxxxx,
Xxxxx 000, Xxxx, Xxxxx Xxxxxxxx 00000, Attention: Chief Financial Officer.
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ASSIGNMENT FORM
To assign this Note, fill in the form below:
I or we assign and transfer this Note to:
(Print or type assignee's name, address and zip code)
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint
agent to transfer this Note on the books of the Issuer. The agent may
substitute another to act for him.
Date: Your Signature:
Sign exactly as your name appears.
on the other side of this Note.
Signature Guarantee:
(Signature must be guaranteed by a participant in a
recognized Signature Guarantee Medallion Program or other
signature guarantor program reasonably
acceptable to the Trustee)
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Issuer
pursuant to Section 4.7 or 4.9 of the Indenture, check the appropriate box:
Section 4.7
Section 4.9
If you want to elect to have only part of this Note purchased by
the Issuer pursuant to Section 4.7 or 4.9 of the Indenture, state the amount you
elect to have purchased
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(must be integral multiple of $1,000): $_______________
