Exhibit 4.1
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INDENTURE
Dated as of June 13, 2003
Among
TRITON PCS, INC.
THE GUARANTORS PARTY HERETO,
and
THE BANK OF NEW YORK, as Trustee
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8 1/2% Senior Notes due 2013
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CROSS-REFERENCE TABLE
Indenture
Trust Indenture Act Section Section
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(S)310 (a)(1)............................................. 7.10
(a)(2)............................................. 7.10
(a)(3)............................................. N.A.
(a)(4)............................................. N.A.
(a)(5)............................................. 7.10
(b)................................................ 7.08; 7.10; 11.02
(c)................................................ N.A.
(S)311 (a)................................................ 7.11
(b)................................................ 7.11
(c)................................................ N.A.
(S)312 (a)................................................ 2.05
(b)................................................ 11.03
(c)................................................ 11.03
(S)313 (a)................................................ 7.06
(b)(1)............................................. N.A.
(b)(2)............................................. 7.06
(c)................................................ 7.06; 11.02
(d)................................................ 7.06
(S)314 (a)................................................ 4.11; 4.12; 11.02
(b)................................................ N.A.
(c)(1)............................................. 11.04
(c)(2)............................................. 11.04
(c)(3)............................................. N.A.
(d)................................................ N.A.
(e)................................................ 11.05
(f)................................................ N.A.
(S)315 (a)................................................ 7.01
(b)................................................ 7.05; 11.02
(c)................................................ 7.01(a)
(d)................................................ 7.01(c)
(e)................................................ 6.11
(S)316 (a)(last sentence)................................. 2.09
(a)(1)(A).......................................... 6.05
(a)(1)(B).......................................... 6.04
(a)(2)............................................. N.A.
(b)................................................ 6.07
(c)................................................ 9.04
(S)317 (a)(1)............................................. 6.08
(a)(2)............................................. 6.09
(b)................................................ 2.04
(S)318 (a)................................................ 11.01
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N.A. means Not Applicable.
NOTE: This Cross-Reference Table shall not, for any purpose, be deemed to be a
part of this Indenture.
TABLE OF CONTENTS
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ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions.......................................................................1
SECTION 1.02. Other Definitions................................................................17
SECTION 1.03. Incorporation by Reference of Trust Indenture Act................................17
SECTION 1.04. Rules of Construction............................................................18
ARTICLE TWO
THE SECURITIES
SECTION 2.01. Form and Dating..................................................................18
SECTION 2.02. Execution and Authentication.....................................................20
SECTION 2.03. Registrar and Paying Agent.......................................................20
SECTION 2.04. Paying Agent To Hold Money in Trust..............................................21
SECTION 2.05. Securityholder Lists.............................................................21
SECTION 2.06. Transfer and Exchange............................................................21
SECTION 2.07. Replacement Securities...........................................................29
SECTION 2.08. Outstanding Securities...........................................................29
SECTION 2.09. Treasury Securities..............................................................30
SECTION 2.10. Temporary Securities.............................................................30
SECTION 2.11. Cancellation.....................................................................30
SECTION 2.12. Defaulted Interest...............................................................30
SECTION 2.13. CUSIP or ISIN Number.............................................................31
SECTION 2.14. Payments of Interest.............................................................31
ARTICLE THREE
REDEMPTION
SECTION 3.01. Notices to Trustee...............................................................31
SECTION 3.02. Selection of Securities To Be Redeemed...........................................32
SECTION 3.03. Notice of Redemption.............................................................32
SECTION 3.04. Effect of Notice of Redemption...................................................33
SECTION 3.05. Deposit of Redemption Price......................................................33
SECTION 3.06. Securities Redeemed in Part......................................................33
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ARTICLE FOUR
COVENANTS
SECTION 4.01. Payment of Securities............................................................33
SECTION 4.02. Maintenance of Office or Agency..................................................34
SECTION 4.03. Limitation on Transactions with Affiliates.......................................34
SECTION 4.04. Limitation on Incurrence of Indebtedness.........................................35
SECTION 4.05. Limitation on Certain Asset Dispositions.........................................38
SECTION 4.06. Limitation on Restricted Payments................................................39
SECTION 4.07. Corporate Existence..............................................................42
SECTION 4.08. Payment of Taxes and Other Claims................................................42
SECTION 4.09. Notice of Defaults...............................................................43
SECTION 4.10. Maintenance of Properties........................................................43
SECTION 4.11. Compliance Certificate...........................................................43
SECTION 4.12. Provision of Financial Information...............................................43
SECTION 4.13. Waiver of Stay, Extension or Usury Laws..........................................44
SECTION 4.14. Change of Control................................................................44
SECTION 4.15. Limitation on Restrictions Affecting Restricted Subsidiaries.....................45
SECTION 4.16. Limitation on Liens..............................................................45
SECTION 4.17. Subsidiary Guarantees............................................................47
SECTION 4.18. Limitation on Activities of the Company and the Restricted Subsidiaries..........47
SECTION 4.19. Limitation on Designations of Unrestricted Subsidiaries..........................47
ARTICLE FIVE
MERGERS; SUCCESSOR CORPORATION
SECTION 5.01. Restriction on Mergers, Consolidations and Certain Sales of Assets...............48
SECTION 5.02. Successor Corporation Substituted................................................49
ARTICLE SIX
DEFAULT AND REMEDIES
SECTION 6.01. Events of Default................................................................49
SECTION 6.02. Acceleration.....................................................................51
SECTION 6.03. Other Remedies...................................................................51
SECTION 6.04. Waiver of Past Default...........................................................51
SECTION 6.05. Control by Majority..............................................................52
SECTION 6.06. Limitation on Suits..............................................................52
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SECTION 6.07. Rights of Holders to Receive Payment.............................................53
SECTION 6.08. Collection Suit by Trustee.......................................................53
SECTION 6.09. Trustee May File Proofs of Claim.................................................53
SECTION 6.10. Priorities.......................................................................54
SECTION 6.11. Undertaking for Costs............................................................54
ARTICLE SEVEN
TRUSTEE
SECTION 7.01. Duties of Trustee................................................................54
SECTION 7.02. Rights of Trustee................................................................56
SECTION 7.03. Individual Rights of Trustee.....................................................57
SECTION 7.04. Trustee's Disclaimer.............................................................57
SECTION 7.05. Notice of Defaults...............................................................57
SECTION 7.06. Reports by Trustee to Holders....................................................57
SECTION 7.07. Compensation and Indemnity.......................................................58
SECTION 7.08. Replacement of Trustee...........................................................59
SECTION 7.09. Successor Trustee by Merger, etc.................................................60
SECTION 7.10. Eligibility; Disqualification....................................................60
SECTION 7.11. Preferential Collection of Claims Against Company................................60
ARTICLE EIGHT
DISCHARGE OF INDENTURE
SECTION 8.01. Termination of Company's Obligations.............................................60
SECTION 8.02. Application of Trust Money.......................................................62
SECTION 8.03. Repayment to Company.............................................................62
SECTION 8.04. Reinstatement....................................................................62
ARTICLE NINE
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.01. Without Consent of Holders.......................................................63
SECTION 9.02. With Consent of Holders..........................................................64
SECTION 9.03. Compliance with Trust Indenture Act..............................................65
SECTION 9.04. Revocation and Effect of Consents................................................65
SECTION 9.05. Notation on or Exchange of Securities............................................66
SECTION 9.06. Trustee To Sign Amendments, etc..................................................66
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ARTICLE TEN
GUARANTEE
SECTION 10.01. Unconditional Guarantee..........................................................66
SECTION 10.02. Severability.....................................................................67
SECTION 10.03. Release of a Guarantor...........................................................67
SECTION 10.04. Limitation of Guarantor's Liability..............................................68
SECTION 10.05. Contribution.....................................................................68
SECTION 10.06. Execution of Guarantee...........................................................68
SECTION 10.07. Subordination of Subrogation and Other Rights....................................69
ARTICLE ELEVEN
MISCELLANEOUS
SECTION 11.01. Trust Indenture Act Controls.....................................................69
SECTION 11.02. Notices..........................................................................69
SECTION 11.03. Communications by Holders with Other Holders.....................................71
SECTION 11.04. Certificate and Opinion as to Conditions Precedent...............................71
SECTION 11.05. Statements Required in Certificate or Opinion....................................71
SECTION 11.06. Rules by Trustee, Paying Agent, Registrar........................................72
SECTION 11.07. Governing Law....................................................................72
SECTION 11.08. No Recourse Against Others.......................................................72
SECTION 11.09. Successors.......................................................................72
SECTION 11.10. Counterpart Originals............................................................72
SECTION 11.11. Severability.....................................................................72
SECTION 11.12. No Adverse Interpretation of Other Agreements....................................72
SECTION 11.13. Legal Holidays...................................................................73
EXHIBIT A - Form of Security....................................................................A-1
EXHIBIT B - Form of Certificate of Transfer.....................................................B-1
EXHIBIT C - Form of Certificate of Exchange.....................................................C-1
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NOTE: This Table of Contents shall not, for any purpose, be deemed to be a part
of this Indenture.
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INDENTURE dated as of June 13, 2003, among TRITON PCS, INC., a
Delaware corporation (the "Company"), the Guarantors party hereto and THE BANK
OF NEW YORK, as trustee (the "Trustee").
Each party hereto agrees as follows for the benefit of the other
parties and for the equal and ratable benefit of the Holders of the Company's
Senior Notes due 2013:
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions.
"Acquired Indebtedness" means, with respect to any Person,
Indebtedness of such Person (i) existing at the time such Person becomes a
Restricted Subsidiary or (ii) assumed in connection with the acquisition of
assets from another Person, including Indebtedness Incurred in connection with,
or in contemplation of, such Person becoming a Restricted Subsidiary or such
acquisition, as the case may be.
"Additional Interest" has the meaning set forth in the Registration
Rights Agreement.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with any specified Person. For 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.
"Agent" means any Registrar, Paying Agent or co-Registrar.
"Annualized Pro Forma Consolidated Operating Cash Flow" means
Consolidated Cash Flow for the latest two full fiscal quarters for which
consolidated financial statements of the Company are available multiplied by
two. For purposes of calculating "Consolidated Cash Flow" for any period for
purposes of this definition only, (i) any Subsidiary of the Company that is a
Restricted Subsidiary on the date of the transaction giving rise to the need to
calculate "Annualized Pro Forma Consolidated Operating Cash Flow" (the
"Transaction Date") shall be deemed to have been a Restricted Subsidiary at all
times during such period and (ii) any Subsidiary of the Company that is not a
Restricted Subsidiary on the Transaction Date shall be deemed not to have been a
Restricted Subsidiary at any time during such period. In addition to and without
limitation of the foregoing, for purposes of this definition only, "Consolidated
Cash Flow" shall be calculated after giving effect on a pro forma basis for the
applicable period to, without duplication, any Asset Dispositions or Asset
Acquisitions (including, without limitation, any Asset Acquisition giving rise
to the need to make such calculation as a result of the Company or one of the
Restricted Subsidiaries (including any Person who becomes a Restricted
Subsidiary as a result of the Asset Acquisition) incurring, assuming or
otherwise being liable for Ac-
quired Indebtedness) occurring during the period commencing on the first day of
such two fiscal quarter period to and including the Transaction Date (the
"Reference Period"), as if such Asset Sale or Asset Acquisition occurred on the
first day of the Reference Period.
"Applicable Procedures" means, with respect to any transfer or
exchange of interests in a Global Security, the rules and procedures of DTC,
Euroclear and Clearstream Banking, S.A. ("Clearstream") that apply to such
transfer or exchange.
"Asset Acquisition" means (i) any purchase or other acquisition (by
means of transfer of cash or other property to others or payment for property or
services for the account or use of others, or otherwise) of Equity Interests of
any Person by the Company or any Restricted Subsidiary, in either case, pursuant
to which such Person shall become a Restricted Subsidiary or shall be merged
with or into the Company or any Restricted Subsidiary or (ii) any acquisition by
the Company or any Restricted Subsidiary of the property or assets of any Person
that constitute all or substantially all of an operating unit or line of
business of such Person.
"Asset Disposition" means any sale, transfer or other disposition
(including, without limitation, by merger, consolidation or sale-and-leaseback
transaction) of (i) shares of Capital Stock of a Subsidiary of the Company
(other than directors' qualifying shares), (ii) any FCC license for the
provision of wireless telecommunications services held by the Company or any
Restricted Subsidiary (whether by sale of Capital Stock or otherwise) or (iii)
property or assets of the Company or any Restricted Subsidiary of the Company;
provided, however, that an Asset Disposition shall not include (a) any sale,
transfer or other disposition of shares of Capital Stock, property or assets by
a Restricted Subsidiary to the Company or to any other Restricted Subsidiary or
by the Company to any Restricted Subsidiary, (b) any sale, transfer or other
disposition of defaulted receivables for collection or any sale, transfer or
other disposition of property or assets in the ordinary course of business, (c)
any sale, transfer or other disposition that does not (together with all related
sales, transfers or dispositions) involve aggregate consideration in excess of
$5.0 million, (d) the sale, lease, conveyance or disposition or other transfer
of all or substantially all of the assets of the Company as permitted under
Article Five or (e) any disposition that constitutes a Change of Control.
"Average Life" means, as of the date of determination, with respect to
any Indebtedness for borrowed money or Preferred Stock, the quotient obtained by
dividing (i) the sum of the products of the number of years from the date of
determination to the dates of each successive scheduled principal or liquidation
value payments of such Indebtedness or Preferred Stock, respectively, and the
amount of such principal or liquidation value payments, by (ii) the sum of all
such principal or liquidation value payments.
"Board" of any Person means the board of directors, management
committee or other governing body of such Person.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which banking institutions in The City of New York,
New York are authorized or obligated by law or executive order to close.
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"Capital Lease Obligations" of any Person means the obligations to pay
rent or other amounts under a lease of (or other Indebtedness arrangements
conveying the right to use) real or personal property of such Person which are
required to be classified and accounted for as a capital lease or liability on
the face of a balance sheet of such Person in accordance with GAAP. The amount
of such obligations shall be the capitalized amount thereof in accordance with
GAAP and the stated maturity thereof shall be the date of the last payment of
rent or any other amount due under such lease prior to the first date upon which
such lease may be terminated by the lessee without payment of a penalty.
"Capital Stock" of any Person means any and all shares, interests,
rights to purchase, warrants, options participations or other equivalents of or
interests in (however designated) of corporate stock or other equity
participations, including partnership interests, whether general or limited of
such Person.
"Cash Equivalents" means (i) direct obligations of, or obligations the
principal of and interest on which are unconditionally guaranteed by, the United
States of America (or by any agency thereof to the extent such obligations are
backed by the full faith and credit of the United States of America), in each
case maturing within one year from the date of acquisition thereof; (ii)
investments in commercial paper maturing within 365 days from the date of
acquisition thereof and having, at such date of acquisition, the highest credit
rating obtainable from Standard & Poor's or from Xxxxx'x Investors Service;
(iii) investments in certificates of deposit, banker's acceptances and time
deposits maturing within 365 days from the date of acquisition thereof issued or
guaranteed by or placed with, and money market deposit accounts issued or
offered by, any domestic office of any commercial bank organized under the laws
of the United States of America or any State thereof which has a combined
capital and surplus and undivided profits of not less than $500.0 million; (iv)
fully collateralized repurchase agreements with a term of not more than 30 days
for securities described in clause (i) of this definition and entered into with
a financial institution satisfying the criteria described in clause (iii) of
this definition; and (v) money market funds substantially all of whose assets
comprise securities of the type described in clauses (i) through (iii) of this
definition.
"Change of Control" means the occurrence of one or more of the
following events: (i) any "person" or "group" (as such terms are used in Section
13(d) and 14(d) of the Exchange Act) other than a Permitted Holder, or Permitted
Holders or a person or group controlled by a Permitted Holder or Permitted
Holders, is or becomes the "beneficial owner" (as defined in Rules 13d-3 and
13d-5 under the Exchange Act, except that a person shall be deemed to have
"beneficial ownership" of all such securities that such person has the right to
acquire within one year, upon the happening of an event or otherwise) directly
or indirectly, of (A) securities of Triton PCS Holdings, Inc. representing 50%
or more of the combined voting power of Triton PCS Holdings, Inc.'s then
outstanding Voting Stock, or (B) securities of the Company representing 50% or
more of the combined voting power of the Company's then outstanding Voting
Stock; (ii) the following individuals cease for any reason to constitute more
than a majority of the number of directors then serving on the Board of Triton
PCS Holdings, Inc. or the Company: individuals who, on the Issue Date,
constitute the Board and any new director (other than a director whose initial
assumption of the office is in connection with an actual or threatened election
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contest, including but not limited to a consent solicitation, relating to the
election of directors of Triton PCS Holdings, Inc. or the Company) whose
appointment or election by the Board or nomination for election by the Company's
stockholders was approved by the vote of at least two-thirds (2/3) of the
directors then still in office or whose appointment, election or nomination was
previously so approved or recommended; or (iii) the shareholders of Triton PCS
Holdings, Inc. or of the Company shall approve any Plan of Liquidation (whether
or not otherwise in compliance with the provisions of this Indenture). For
purposes of the foregoing, the transfer (by lease, assignment, sale or
otherwise, in a single transaction or series of transactions) of all or
substantially all of the properties or assets of one or more Subsidiaries of the
Company, the Capital Stock of which constitutes all or substantially all of the
properties and assets of the Company, shall be deemed to be the transfer of all
or substantially all of the properties and assets of the Company.
"Common Stock" of any Person means Capital Stock of such Person that
does not rank prior, as to the payment of dividends or as to the distribution of
assets upon any voluntary or involuntary liquidation, dissolution or winding up
of such Person, to shares of Capital Stock of any other class of such Person.
"Commission" means the Securities and Exchange Commission.
"Consolidated Cash Flow" of the Company means for any period
Consolidated Net Income for such period (x) increased (to the extent
Consolidated Net Income for such period has been reduced thereby) by the sum of
(without duplication) (i) Consolidated Interest Expense of the Company for such
period, plus (ii) Consolidated Income Tax Expense of the Company for such
period, plus (iii) the consolidated depreciation and amortization expense of the
Company and its Restricted Subsidiaries for such period, plus (iv) any other
non-cash charges of the Company and its Restricted Subsidiaries for such period
except for any non-cash charges that represent accruals of, or reserves for,
cash disbursements to be made in any future accounting period and (y) decreased
(to the extent Consolidated Net Income for such period has been increased
thereby) by any non-cash gains from Asset Dispositions.
"Consolidated Income Tax Expense" means for any period the
consolidated provision for income taxes of the Company and its Restricted
Subsidiaries for such period calculated on a consolidated basis in accordance
with GAAP.
"Consolidated Interest Expense" means for any period, without
duplication, (a) the consolidated interest expense included in a consolidated
income statement (without deduction of interest or finance charge income) of the
Company and its Restricted Subsidiaries for such period calculated on a
consolidated basis in accordance with GAAP (including, without limitation, (i)
any amortization of debt discount, (ii) the net costs under interest rate
agreements, (iii) all capitalized interest, (iv) the interest portion of any
deferred payment obligation and (v) all amortization of any premiums, fees and
expenses payable in connection with the Incurrence of any Indebtedness, plus (b)
the interest component of Capital Lease Obligations paid, accrued and/or
scheduled to be paid or accrued by the Company and its Restricted Subsidiaries
during such period as determined on a consolidated basis in accordance with
GAAP.
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"Consolidated Net Income" means for any period the consolidated net
income (or loss) of the Company and its Restricted Subsidiaries for such period
determined on a consolidated basis in accordance with GAAP; provided, however,
that there shall be excluded therefrom (a) the net income (or loss) of any
Person acquired by the Company or a Restricted Subsidiary in a
pooling-of-interests transaction for any period prior to the date of such
transaction, (b) the net income (but not loss) of any Restricted Subsidiary
which is subject to restrictions which prevent or limit the payment of dividends
or the making of distributions to the Company to the extent of such
restrictions, (c) the net income of any Person that is not a Restricted
Subsidiary, except to the extent of the amount of dividends or other
distributions representing such Person's proportionate share of the Company's
net income for such period actually paid in cash to the Company by such other
Person during such period, (d) gains or losses (other than for purposes of
calculating Consolidated Net Income under Section 4.06(a)(3)) on Asset
Dispositions by the Company or its Restricted Subsidiaries, (e) all
extraordinary gains (but not, other than for purposes of calculating
Consolidated Net Income under Section 4.06(a)(3), losses) determined in
accordance with GAAP and (f) in the case of a successor to the Company by
consolidation or merger or as a transferee of the Company's assets, any earnings
(or losses) of the successor corporation prior to such consolidation, merger or
transfer of assets.
"Default" means any event that is, or after notice or lapse of time or
both would become, an Event of Default.
"Designation" has the meaning set forth in Section 4.19.
"Designation Amount" has the meaning set forth in Section 4.19.
"Disinterested Director" means a member of the Board who does not have
any material direct or indirect financial interest in or with respect to the
transaction being considered.
"Disqualified Stock" of any Person means any Capital Stock of such
Person which, by its terms (or by the terms of any security into which it is
convertible or for which it is exchangeable), or upon the happening of any
event, matures or is mandatorily redeemable, pursuant to a sinking fund
obligation or otherwise, or is redeemable at the option of the holder thereof,
in whole or in part, on or prior to the final maturity of the Notes.
"DTC" means The Depository Trust Company or its successors.
"Equipment Subsidiary" means Triton PCS Equipment Company, L.L.C., a
Delaware limited liability company.
"Equity Offering" means any public or private sale of Qualified Stock
made on a primary basis by the Company, Triton PCS Holdings, Inc. or a special
purpose corporation; provided that the proceeds from such issuance or sale of
any Qualified Stock sold by Triton PCS Holdings, Inc. or the special purpose
corporation, as the case may be, will be required, prior to any redemption of
Notes prior to June 1, 2006, to be contributed as equity in exchange for
Qualified Stock to, or to be used to purchase Qualified Stock in, the Company.
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"Euroclear" means Xxxxxx Guaranty Trust Company of New York (Brussels
Office) as operator of the Euroclear System.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated by the Commission thereunder.
"Exchange Registration Statement" has the meaning set forth in the
Registration Rights Agreement.
"Exchange Securities" means the 8 1/2% Senior Notes due 2013 to be
issued in exchange for the Initial Securities pursuant to the Registration
Rights Agreement, or, with respect to the Initial Global Securities issued under
this Indenture subsequent to the Issue Date pursuant to Section 2.02, a
registration rights agreement substantially identical to the Registration Rights
Agreement.
"Excluded Cash Proceeds" means the first $122.0 million of net cash
proceeds received by the Company prior to January 19, 2001 from capital
contributions in respect of Qualified Stock of the Company or from the issue or
sale (other than to a Restricted Subsidiary) of Qualified Stock of the Company.
"Fair Market Value" means, with respect to any asset or property, the
price that could be negotiated in an arm's-length transaction, for cash, between
a willing seller and a willing buyer, neither of whom is under pressure or
compulsion to complete the transaction. Unless otherwise specified in this
Indenture, Fair Market Value shall be determined by the Board acting in good
faith.
"GAAP" means generally accepted accounting principles, consistently
applied, as in effect from time to time in the United States of America, as set
forth in the opinions and pronouncements of the Accounting Principles Board of
the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as is approved by a significant segment of the
accounting profession in the United States.
"Guarantee" means the guarantee of the Notes by each Guarantor under
this Indenture.
"Guarantor" means (i) as of the date hereof, all of our Restricted
Subsidiaries, existing on the date hereof, other than the License Subsidiary and
the Real Property Subsidiary, and (ii) each Restricted Subsidiary that pursuant
to the terms of this Indenture executes a supplement to this Indenture as a
Guarantor, in each case, until such Restricted Subsidiary is released from its
Guarantee.
"Holder" or "Securityholder" means the Person in whose name a Security
is registered on the Registrar's books.
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"Incur" means, with respect to any Indebtedness or other obligation of
any Person, to create, issue, incur (including by conversion, exchange or
otherwise), assume, guarantee or otherwise become liable in respect of such
Indebtedness or other obligation or the recording, as required pursuant to GAAP
or otherwise, of any such Indebtedness or other obligation on the balance sheet
of such Person (and "Incurrence," "Incurred" and "Incurring" shall have meanings
correlative to the foregoing). Indebtedness of any Person or any of its
Restricted Subsidiaries existing at the time such Person becomes a Restricted
Subsidiary (or is merged into or consolidates with the Company or any Restricted
Subsidiary), whether or not such Indebtedness was incurred in connection with,
or in contemplation of, such Person becoming a Restricted Subsidiary (or being
merged into or consolidated with the Company or any Restricted Subsidiary),
shall be deemed Incurred at the time any such Person becomes a Restricted
Subsidiary or merges into or consolidates with the Company or any Restricted
Subsidiary.
"Indebtedness" means (without duplication), with respect to any
Person, whether recourse is to all or a portion of the assets of such Person and
whether or not contingent, (i) every obligation of such Person for money
borrowed, (ii) every obligation of such Person evidenced by bonds, debentures,
notes or other similar instruments, including obligations incurred in connection
with the acquisition of property, assets or businesses, (iii) every
reimbursement obligation of such Person with respect to letters of credit,
bankers' acceptances or similar facilities issued for the account of such
Person, (iv) every obligation of such Person issued or assumed as the deferred
purchase price of property or services (but excluding trade accounts payable or
accrued liabilities arising in the ordinary course of business which are not
overdue or which are being contested in good faith), (v) every Capital Lease
Obligation of such Person, (vi) every net obligation under interest rate swap or
similar agreements of such Person and (vii) every obligation of the type
referred to in clauses (i) through (vi) of another Person and all dividends of
another Person the payment of which, in either case, such Person has guaranteed
or is responsible or liable for, directly or indirectly, as obligor, guarantor
or otherwise. Indebtedness shall include the liquidation preference and any
mandatory redemption payment obligations in respect of any Disqualified Stock of
the Company, and any Preferred Stock of a Restricted Subsidiary of the Company
held by Persons other than the Company or any of its Restricted Subsidiaries.
Indebtedness shall never be calculated taking into account any cash and cash
equivalents held by such Person. Indebtedness shall not include obligations
arising from agreements of the Company or a Restricted Subsidiary to provide for
indemnification, adjustment of purchase price, earn-out, or other similar
obligations, in each case, incurred or assumed in connection with the
disposition of any business or assets of a Restricted Subsidiary. The amount of
any Indebtedness outstanding as of any date shall be (i) the accreted value
thereof, in the case of any Indebtedness issued with original issue discount,
(ii) the principal amount thereof, in the case of any Indebtedness other than
Indebtedness issued with original issue discount, and (iii) the greater of the
maximum repurchase or redemption price or liquidation preference thereof, in the
case of any Disqualified Stock or Preferred Stock.
"Indenture" means this Indenture as amended or supplemented from time
to time in accordance with its terms.
-7-
"Initial Global Securities" means the Regulation S Global Security and
the 144A Global Security, each of which is issued on the Issue Date and contains
a Securities Act Legend.
"Initial Securities" means the 8 1/2% Senior Notes due 2013 issued
under this Indenture on the Issue Date, including the Initial Global Securities.
"Institutional Accredited Investor" means an institution that is an
"accredited investor" as that term is defined in Rule 501(a)(1), (2), (3) or (7)
of Regulation D promulgated under the Securities Act.
"interest" means, with respect to the Notes, the sum of any cash
interest and any Additional Interest on the Notes.
"Interest Payment Date" has the meaning given to such term in the
Securities.
"Investment" by any Person means any direct or indirect loan, advance,
guarantee or other extension of credit or capital contribution to (by means of
transfers of cash or other property to others or payments for property or
services for the account or use of others, or otherwise), or purchase or
acquisition of Capital Stock, bonds, notes, debentures or other securities or
evidence of Indebtedness issued by, any other Person.
"Issue Date" means June 13, 2003, the original issue date of the
Securities initially issued hereunder.
"License Subsidiary" means Triton PCS License Company, L.L.C., a
Delaware limited liability company.
"Lien" means, with respect to any property or assets, any mortgage or
deed of trust, pledge, hypothecation, assignment, security interest, lien,
charge, easement (other than any easement not materially impairing usefulness or
marketability), encumbrance, preference, priority or other security agreement
with respect to such property or assets (including, without limitation, any
conditional sale or other title retention agreement having substantially the
same economic effect as any of the foregoing).
"Material Subsidiary" means, at any date of determination, (a) any
Restricted Subsidiary that, together with its Subsidiaries that constitute
Restricted Subsidiaries (i) for the most recent fiscal year of the Company
accounted for more than 10.0% of the consolidated revenues of the Company and
the Restricted Subsidiaries or (ii) as of the end of such fiscal year, owned
more than 10.0% of the consolidated assets of the Company and the Restricted
Subsidiaries, all as set forth on the consolidated financial statements of the
Company and the Restricted Subsidiaries for such year prepared in conformity
with GAAP, and (b) any Restricted Subsidiary which, when aggregated with all
other Restricted Subsidiaries that are not otherwise Material Subsidiaries and
as to which any event described in clause (h) or (i) of Section 6.01 has
occurred, would constitute a Material Subsidiary under clause (a) of this
definition.
-8-
"Net Available Proceeds" from any Asset Disposition by any Person
means cash or readily marketable Cash Equivalents received (including by way of
sale or discounting of a note, installment receivable or other receivable, but
excluding any other consideration received in the form of assumption by the
acquirer of Indebtedness or other obligations relating to such properties or
assets or received in any other non-cash form) therefrom by such Person,
including any cash received by way of deferred payment or upon the monetization
or other disposition of any non-cash consideration (including notes or other
securities) received in connection with such Asset Disposition, net of (i) all
legal, title and recording tax expenses, commissions and other fees and expenses
incurred and all federal, state, foreign and local taxes required to be accrued
as a liability as a consequence of such Asset Disposition, (ii) all payments
made by such Person or any of its Restricted Subsidiaries on any Indebtedness
that is secured by such assets in accordance with the terms of any Lien upon or
with respect to such assets or which must by the terms of such Lien, or in order
to obtain a necessary consent to such Asset Disposition or by applicable law, be
repaid out of the proceeds from such Asset Disposition, (iii) all payments made
with respect to liabilities associated with the assets which are the subject of
the Asset Disposition, including, without limitation, trade payables and other
accrued liabilities, (iv) appropriate amounts to be provided by such Person or
any Restricted Subsidiary thereof, as the case may be, as a reserve in
accordance with GAAP against any liabilities associated with such assets and
retained by such Person or any Restricted Subsidiary thereof, as the case may
be, after such Asset Disposition, including, without limitation, liabilities
under any indemnification obligations and severance and other employee
termination costs associated with such Asset Disposition, until such time as
such amounts are no longer reserved or such reserve is no longer necessary (at
which time any remaining amounts will become Net Available Proceeds to be
allocated in accordance with the provisions of clause (iii) of Section 4.05) and
(v) all distributions and other payments made to minority interest holders in
Restricted Subsidiaries of such Person or joint ventures as a result of such
Asset Disposition.
"Net Investment" means the excess of (i) the aggregate amount of all
Investments made in any Unrestricted Subsidiary or joint venture by the Company
or any Restricted Subsidiary on or after April 29, 1998 (in the case of an
Investment made other than in cash, the amount shall be the Fair Market Value of
such Investment as determined in good faith by the Board of the Company or such
Restricted Subsidiary) over (ii) the aggregate amount returned in cash on or
with respect to such Investments whether through interest payments, principal
payments, dividends or other distributions or payments; provided, however, that
such payments or distributions shall not be (and have not been) included in
Section 4.06(a)(3)(iii); provided, further, that with respect to all Investments
made in any Unrestricted Subsidiary or joint venture the amounts referred to in
clause (ii) above with respect to such Investments shall not exceed the
aggregate amount of all such Investments made in such Unrestricted Subsidiary or
joint venture.
"Notes" or "Securities" means, collectively, the Initial Securities,
the Private Exchange Securities, if any, the Exchange Securities, the Subsequent
Securities, if any, and the Unrestricted Securities, treated as a single class
of securities, as amended or supplemented from time to time in accordance with
the terms hereof, that are issued pursuant to the terms of this Indenture.
-9-
"Offer to Purchase" means a written offer (the "Offer") sent by the
Company by first class mail, postage prepaid, to each Holder at his address
appearing in the register for the Securities on the date of the Offer, offering
to purchase up to the aggregate principal amount of the Notes at the purchase
price specified in such Offer (as determined pursuant to this Indenture). Unless
otherwise required by applicable law, the Offer shall specify an expiration date
(the "Expiration Date") of the Offer to Purchase, which shall be not less than
30 days nor more than 60 days after the date of such Offer, and a settlement
date (the "Purchase Date") for purchase of Notes within five Business Days after
the Expiration Date. The Company shall notify the Trustee at least 15 Business
Days (or such shorter period as is acceptable to the Trustee) prior to the
mailing of the Offer of the Company's obligation to make an Offer to Purchase,
and the Offer shall be mailed by the Company or, at the Company's request, by
the Trustee in the name and at the expense of the Company. The Offer shall
contain all the information required by applicable law to be included therein.
The Offer shall contain all instructions and materials necessary to enable such
holders to tender Notes pursuant to the Offer to Purchase. The Offer shall also
state:
(i) the Section of this Indenture pursuant to which the Offer to
Purchase is being made;
(ii) the Expiration Date and the Purchase Date;
(iii) the aggregate principal amount of the outstanding Securities
offered to be purchased by the Company pursuant to the Offer to Purchase
(including, if less than 100%, the manner by which such amount has been
determined pursuant to the Section of this Indenture requiring the Offer to
Purchase) (the "Purchase Amount");
(iv) the purchase price to be paid by the Company for each $1,000
aggregate principal amount of Securities accepted for payment (as specified
pursuant to this Indenture) (the "Purchase Price");
(v) that the Holder may tender all or any portion of the Securities
registered in the name of such Holder and that any portion of a Security
tendered must be tendered in an integral multiple of $1,000 principal
amount;
(vi) the place or places where Securities are to be surrendered for
tender pursuant to the Offer to Purchase;
(vii) that interest on any Security not tendered or tendered but not
purchased by the Company pursuant to the Offer to Purchase will continue to
accrue;
(viii) that on the Purchase Date the Purchase Price will become due
and payable upon each Security being accepted for payment pursuant to the
Offer to Purchase and that interest thereon shall cease to accrue on and
after the Purchase Date;
(ix) that each Holder electing to tender all or any portion of a
Security pursuant to the Offer to Purchase will be required to surrender
such Security at the place or places specified in the Offer prior to the
close of business on the Expiration Date (such
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Security being, if the Company or the Trustee so requires, duly endorsed
by, or accompanied by a written instrument of transfer in form satisfactory
to the Company and the Trustee duly executed by, the Holder thereof or his
attorney duly authorized in writing);
(x) that Holders will be entitled to withdraw all or any portion of
Securities tendered if the Company (or its Paying Agent) receives, not
later than the close of business on the fifth Business Day next preceding
the Expiration Date, a facsimile transmission or letter setting forth the
name of the Holder, the principal amount of the Securities the Holder
tendered, the certificate number of the Securities the Holder tendered and
a statement that such Holder is withdrawing all or a portion of his tender;
(xi) that (a) if Securities in an aggregate principal amount less than
or equal to the Purchase Amount are duly tendered and not withdrawn
pursuant to the Offer to Purchase, the Company shall purchase all such
Securities and (b) if Securities in an aggregate principal amount in excess
of the Purchase Amount are tendered and not withdrawn pursuant to the Offer
to Purchase, the Company shall purchase Securities having an aggregate
principal amount equal to the Purchase Amount on a pro rata basis (with
such adjustments as may be deemed appropriate so that only Securities in
denominations of $1,000 or integral multiples thereof shall be purchased);
and
(xii) that in the case of any Holder whose Security is purchased only
in part, the Company shall execute and the Trustee shall authenticate and
deliver to the Holder of such Security without service charge, a new
Security or Securities, of any authorized denomination as requested by such
Holder in writing, in an aggregate principal amount equal to and in
exchange for the unpurchased portion of the Security so tendered.
An Offer to Purchase shall be governed by and effected in accordance
with the provisions above pertaining to any Offer.
"Officer" means the Chairman of the Board, the Chief Executive
Officer, the President, any Executive Vice President, any Senior Vice President,
the Chief Financial Officer, the Treasurer, or the Secretary of the Company.
"Officers' Certificate" means a certificate, signed by two Officers
(at least one of whom shall be the Chief Financial Officer of the Company) or by
an Officer and an Assistant Treasurer or Assistant Secretary of the Company,
complying with Sections 11.04 and 11.05.
"Opinion of Counsel" means a written opinion from legal counsel who is
reasonably acceptable to the Trustee. The counsel may be an employee of or
counsel to the Company or the Trustee.
"Participant" means any Person who has an account with DTC.
"Permitted Asset Swap" means any exchange of assets by the Company or
a Restricted Subsidiary of the Company where the Company and/or its Restricted
Subsidiaries re-
-11-
ceive consideration at least 75% of which consists of (a) cash, (b) assets that
are used or useful in a Permitted Business or (c) any combination thereof.
"Permitted Business" means (i) the delivery or distribution of
telecommunications, voice, data or video services, (ii) any business or activity
reasonably related or ancillary thereto, including, without limitation, any
business conducted by the Company or any Restricted Subsidiary on the Issue Date
and the acquisition, holding or exploitation of any license relating to the
delivery of the services described in clause (i) of this definition or (iii) any
other business or activity in which the Company and the Restricted Subsidiaries
are expressly contemplated to be engaged in pursuant to the provisions of the
certificate of incorporation and by-laws of the Company as in effect on the
Issue Date.
"Permitted Holder" means (i) each of AT&T Corporation, AT&T Wireless
Services, Inc., AT&T Wireless PCS, LLC, X.X. Xxxxxx Partners (23A SBIC), LLC,
X.X. Xxxxxx SBIC LLC, Xxxxx Capital Management Incorporated and any of their
respective Affiliates and the respective successors (by merger, consolidation,
transfer or otherwise) to all or substantially all of the respective businesses
and assets of any of the foregoing and (ii) any "person" or "group" (as such
terms are used in Section 13(d) and 14(d) of the Exchange Act) controlled by one
or more persons identified in clause (i) of this definition.
"Permitted Investments" means (i) Investments in Cash Equivalents;
(ii) Investments representing Capital Stock or obligations issued to the Company
or any Restricted Subsidiary in the course of the good faith settlement of
claims against any other Person or by reason of a composition or readjustment of
debt or a reorganization of any debtor of the Company or any Restricted
Subsidiary; (iii) deposits, including interest-bearing deposits, maintained in
the ordinary course of business in banks; (iv) any Investment in any Person;
provided, however, that after giving effect to any such Investment such Person
is or becomes a Restricted Subsidiary or such Person is merged, consolidated or
amalgamated with or into, or transfers or conveys substantially all of its
assets to, or is liquidated into, the Company or a Restricted Subsidiary of the
Company; (v) trade receivables and prepaid expenses, in each case arising in the
ordinary course of business; provided, however, that such receivables and
prepaid expenses would be recorded as assets of such Person in accordance with
GAAP; (vi) endorsements for collection or deposit in the ordinary course of
business by such Person of bank drafts and similar negotiable instruments of
such other Person received as payment for ordinary course of business trade
receivables; (vii) any interest rate agreements with an unaffiliated Person
otherwise permitted by clause (v) or (vi) under Section 4.04; (viii) Investments
received as consideration for an Asset Disposition in compliance with Section
4.05; (ix) loans or advances to employees of the Company or any Restricted
Subsidiary in the ordinary course of business in an aggregate amount not to
exceed $5.0 million in the aggregate at any one time outstanding; (xi) any
Investment acquired by the Company or any of its Restricted Subsidiaries as a
result of a foreclosure by the Company or any of its Restricted Subsidiaries or
in connection with the settlement of any outstanding Indebtedness or trade
payable; (xii) loans and advances to officers, directors and employees for
business-related travel expenses, moving expenses and other similar expenses,
each incurred in the ordinary course of business; and (xiii) other Investments
(with each such Investment being
-12-
valued as of the date made and without giving effect to subsequent changes in
value) in an aggregate amount not to exceed $15.0 million at any one time
outstanding.
"Person" means any individual, corporation, limited or general
partnership, joint venture, association, joint stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Plan of Liquidation" means, with respect to any Person, a plan
(including by operation of law) that provides for, contemplates or the
effectuation of which is preceded or accompanied by (whether or not
substantially contemporaneously) (i) the sale, lease, conveyance or other
disposition of all or substantially all of the assets of the referent Person and
(ii) the distribution of all or substantially all of the proceeds of such sale,
lease, conveyance or other disposition and all or substantially all of the
remaining assets of the referent Person to holders of Capital Stock of the
referent Person.
"Preferred Stock," as applied to the Capital Stock of any Person,
means Capital Stock of such Person of any class or classes (however designated)
that ranks prior, as to the payment of dividends or as to the distribution of
assets upon any voluntary or involuntary liquidation, dissolution or winding up
of such Person, to shares of Capital Stock of any other class of such Person.
"principal" of any Security means principal of, and premium, if any,
with respect to, such Security.
"Private Exchange Securities" has the meaning set forth in the
Registration Rights Agreement.
"Public Sale" means any underwritten public offering, made on a
primary basis pursuant to a registration statement filed with, and declared
effective by, the Commission in accordance with the Securities Act.
"Purchase Date" has the meaning set forth in the definition of "Offer
to Purchase."
"Qualified Institutional Buyer" or "QIB" has the meaning specified
under Rule 144A under the Securities Act.
"Qualified Stock" means any Capital Stock of the Company, Triton PCS
Holdings, Inc. or a special purpose corporation other than Disqualified Stock.
"Real Property Subsidiary" means Triton PCS Property Company, L.L.C.,
a Delaware limited liability company.
"Refinance" means refinance, renew, extend, replace or refund; and
"Refinancing" and "Refinanced" have correlative meanings.
-13-
"Registration Rights Agreement" means the Registration Rights
Agreement dated the date hereof among the Company, the Guarantors, Xxxxxx
Brothers Securities, Inc., Citigroup Global Markets Inc., X.X. Xxxxxx Securities
Inc. and Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Inc.
"Regulation S" means Regulation S under the Securities Act.
"Restricted Physical Security" means a Physical Security containing,
or required to contain, a Securities Act Legend.
"Restricted Subsidiary" means any Subsidiary of the Company other than
an Unrestricted Subsidiary.
"Revocation" has the meaning set forth in Section 4.19.
"Rule 144" means Rule 144 under the Securities Act.
"Rule 144A" means Rule 144A under the Securities Act.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations promulgated by the SEC thereunder.
"Senior Credit Facilities" means any credit agreement and/or any other
agreement providing for loans by banks, trust companies and/or other
institutions principally engaged in the business of lending money to businesses
under a credit facility, loan agreement or similar agreement.
"Senior Indebtedness" means all unsubordinated Indebtedness of the
Company or of any Restricted Subsidiary, whether outstanding on the Issue Date
or Incurred thereafter, including, without limitation, all Indebtedness
outstanding under Senior Credit Facilities.
"Shelf Registration Statement" has the meaning set forth in the
Registration Rights Agreement.
"Standard & Poor's" means Standard & Poor's Ratings Service, a
division of the McGraw Hill Companies, Inc.
"Subordinated Indebtedness" means all Indebtedness of the Company or
any Restricted Subsidiary (whether outstanding on the date hereof or hereafter
Incurred) which is by its terms expressly subordinate or junior in right of
payment to any other Indebtedness of the Company or of such Restricted
Subsidiary, as the case may be.
"Subsidiary" of any Person means (i) a corporation more than 50% of
the outstanding Voting Stock of which is owned, directly or indirectly, by such
Person or by one or more other Subsidiaries of such Person or by such Person and
one or more other Subsidiaries
-14-
thereof or (ii) any other Person (other than a corporation) in which such
Person, or one or more other Subsidiaries of such Person or such Person and one
or more other Subsidiaries thereof, directly or indirectly, has at least a
majority ownership and voting power relating to the policies, management and
affairs thereof.
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code (S)(S)
77aaa-77bbbb), as in effect on the date of this Indenture, except as provided in
Section 9.03.
"Total Consolidated Indebtedness" means at any date of determination,
an amount equal to (i) the accreted value of all Indebtedness, in the case of
any Indebtedness issued with original issue discount, plus (ii) the principal
amount of all Indebtedness, in the case of any other Indebtedness, of the
Company and the Restricted Subsidiaries outstanding as of the date of
determination.
"Total Consolidated Senior Indebtedness" means, at any date of
determination, an amount equal to the sum of (a) the accreted value of all
Senior Indebtedness, in the case of any Senior Indebtedness issued with original
issue discount; plus (b) the principal amount of all Senior Indebtedness, in the
case of any other Senior Indebtedness, of the Company and of its Restricted
Subsidiaries outstanding as of the date of determination.
"Total Equity Market Capitalization" of any Person means, as of any
day of determination, the sum of (i) the product of (A) the aggregate number of
outstanding primary shares of common stock of such Person on such day (which
shall not include any options or warrants on, or securities convertible or
exchangeable into, shares of common stock of such Person) multiplied by (B) the
average closing price of such common stock listed on a national securities
exchange or the Nasdaq National Market System over the 20 consecutive business
days immediately preceding such day, plus (ii) the liquidation value of any
outstanding shares of preferred stock of such Person on such day.
"Total Invested Capital" means, at any time of determination, the sum
of, without duplication, (i) the total amount of equity contributed to the
Company as of the Issue Date (as set forth on the combined balance sheet of the
Company), plus (ii) irrevocable binding commitments to purchase Capital Stock
(other than Disqualified Stock) existing as of the Issue Date, plus (iii) the
aggregate net cash proceeds and 75% of the Fair Market Value of non-cash
proceeds, as reasonably determined by the Board of the Company, received by the
Company from capital contributions or the issuance or sale of Capital Stock
(other than Disqualified Stock but including Capital Stock issued upon the
conversion of convertible Indebtedness or from the exercise of options, warrants
or rights to purchase Capital Stock (other than Disqualified Stock)) subsequent
to the Issue Date, other than to a Restricted Subsidiary; provided, however,
such aggregate net cash proceeds received pursuant to this clause (iii) shall
exclude any amounts included as commitments to purchase Capital Stock in the
preceding clause (ii), plus (iv) the aggregate net cash proceeds and 75% of the
Fair Market Value of non-cash proceeds, as reasonably determined by the Board of
the Company, received by the Company or any Restricted Subsidiary from the sale,
disposition or repayment of any Investment made after the Issue Date and
constituting a Restricted Payment in an amount equal to the lesser of (a) the
return of capital with respect to such Investment and (b) the initial amount of
such Investment, in either case, less the
-15-
cost of the disposition of such Investment, plus (v) an amount equal to the
consolidated Net Investment on the date the Company and/or any of the Restricted
Subsidiaries have made in any Subsidiary that has been designated as an
Unrestricted Subsidiary after the Issue Date upon its redesignation as a
Restricted Subsidiary in accordance with Section 4.19, plus (vi) Total
Consolidated Indebtedness minus (vii) the aggregate amount of all Restricted
Payments (including any Designation Amount, but other than a Restricted Payment
of the type referred to in Sections 4.06(b)(iii) or 4.06(b)(vi) declared or made
on or after the Issue Date.
"Triton PCS Holdings, Inc." means Triton PCS Holdings, Inc., a
Delaware corporation, that as of the Issue Date owns all of the issued and
outstanding Capital Stock of the Company.
"Trust Officer" means any officer within the corporate trust
department (or any successor group) of the Trustee including any vice president,
assistant vice president, assistant treasurer or any other officer or assistant
officer of the Trustee customarily performing functions similar to those
performed by the persons who at that time shall be such officers, and also
means, with respect to a particular corporate trust matter, any other officer to
whom such trust matter is referred because of his knowledge of and familiarity
with the particular subject.
"Trustee" means the party named as such in this Indenture until a
successor replaces it in accordance with the provisions of this Indenture and
thereafter means such successor.
"Unrestricted Global Securities" means one or more Global Securities
that do not and are not required to bear the Securities Act Legend.
"Unrestricted Physical Securities" means one or more Physical
Securities that do not and are not required to bear the Securities Act Legend.
"Unrestricted Securities" means the Securities that do not and are not
required to bear the Securities Act Legend including, without limitation, the
Exchange Securities.
"Unrestricted Subsidiary" means any Subsidiary of the Company (other
than the License Subsidiary, the Equipment Subsidiary or the Real Property
Subsidiary) designated after the Issue Date as such pursuant to and in
compliance with Section 4.19. Any such designation may be revoked by a
resolution of the Board of the Company delivered to the applicable Trustee,
subject to the provisions of Section 4.19.
"Vendor Credit Arrangement" means any Indebtedness (including, without
limitation, Indebtedness under any credit facility entered into with any vendor
or supplier or any financial institution acting on behalf of such vendor or
supplier); provided that the net proceeds of such Indebtedness are utilized
solely for the purpose of financing the cost (including, without limitation, the
cost of design, development, site acquisition, construction, integration,
handset manufacture or acquisition or microwave relocation) of assets used or
usable in a Permitted Business (including, without limitation, through the
acquisition of Capital Stock of an entity engaged in a Permitted Business).
-16-
"Voting Stock" of any Person means the Capital Stock of such Person
which ordinarily has voting power for the election of directors (or persons
performing similar functions) of such Person, whether at all times or only so
long as no senior class of securities has such voting power by reason of any
contingency.
"Wholly Owned Subsidiary" means a Restricted Subsidiary all of the
outstanding Capital Stock or other ownership interests of which (other than
directors' qualifying shares) shall at the time be owned by the Company and/or
by one or more Wholly Owned Subsidiaries.
SECTION 1.02. Other Definitions.
Term Defined in Section
---- ------------------
"Bankruptcy Law" 6.01
"Change of Control" 4.14
"Corporate Trust Office" 4.02
"Custodian" 6.01
"Event of Default" 6.01
"Global Security" 2.01(a)
"144A Global Security" 2.01(a)
"Paying Agent" 2.03
"Physical Security" 2.01(b)
"Registrar" 2.03
"Regulation S Global Security" 2.01(a)
"Securities Act Legend" 2.06(f)
"Subsequent Securities" 2.02
"United States Government Obligation" 8.01
SECTION 1.03. Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the
provision is incorporated by reference in and made a part of this Indenture. The
following TIA terms used in this Indenture have the following meanings:
"Commission" means the Securities and Exchange Commission.
"indenture securities" means the Securities.
"obligor" on the indenture securities means the Company or any other
obligor on the Securities.
All other TIA terms used in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by Commission rule
and not otherwise defined herein have the meanings assigned to them therein.
-17-
SECTION 1.04. Rules of Construction.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning assigned
to it in accordance with generally accepted accounting principles in effect
from time to time, and any other reference in this Indenture to "generally
accepted accounting principles" refers to GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and words in the plural
include the singular;
(5) Section and Article references are to sections and articles of
this Indenture;
(6) provisions apply to successive events and transactions; and
(7) "herein," "hereof" and other words of similar import refer to this
Indenture as a whole and not to any particular Article, Section or other
subdivision.
ARTICLE TWO
THE SECURITIES
SECTION 2.01. Form and Dating.
(a) Global Securities. Securities offered and sold to QIBs in reliance
on Rule 144A shall be issued initially substantially in the form of Exhibit A
hereto in the name of Cede & Co. as nominee of DTC, duly executed by the Company
and authenticated by the Trustee as hereinafter provided. Such Security shall be
referred to herein as the "144A Global Security." Securities offered and sold in
reliance on Regulation S shall be issued initially substantially in the form of
Exhibit A hereto in the name of Cede & Co. as nominee of DTC, duly executed by
the Company and authenticated by the Trustee as hereinafter provided. Such
Security shall be referred to herein as the "Regulation S Global Security."
Unrestricted Global Securities shall be issued initially in accordance with
Sections 2.06(b)(iv), 2.06(c)(ii) and 2.06(e) in the name of Cede & Co. as
nominee of DTC, duly executed by the Company and authenticated by the Trustee as
hereinafter provided. The 144A Global Security, Regulation S Global Security and
Unrestricted Global Security are collectively referred to herein as the "Global
Securities." The aggregate principal amount of each of the Global Securities may
from time to time be increased or decreased by adjustments made on the records
of the Trustee as hereinafter provided.
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Each Global Security shall represent such of the outstanding
Securities as shall be specified therein and each shall provide that it shall
represent the aggregate principal amount of outstanding Securities from time to
time endorsed thereon and that the aggregate principal amount of outstanding
Securities represented thereby may from time to time be reduced or increased, as
appropriate, to reflect exchanges, redemptions and transfers of interests
therein in accordance with the terms of this Indenture. Any endorsement of a
Global Security to reflect the amount of any increase or decrease in the
principal amount of outstanding Securities represented thereby shall be made by
the Trustee or DTC, as applicable, in accordance with instructions given by the
Holder thereof as required by Section 2.06.
Upon the issuance of the Global Security to DTC, DTC shall credit, on
its internal book-entry registration and transfer system, its Participants'
accounts with the respective interests owned by such Participants. Interests in
the Global Securities shall be limited to Participants, including Euroclear and
Clearstream, and indirect Participants.
The Participants shall not have any rights either under this Indenture
or under any Global Security with respect to such Global Security held on their
behalf by DTC, and DTC may be treated by the Company, the Trustee and any agent
of the Company or the Trustee as the absolute owner of such Global Security for
the purpose of receiving payment of or on account of the principal of and,
subject to the provisions of this Indenture, interest on the Global Securities
and for all other purposes. Notwithstanding the foregoing, nothing herein shall
prevent the Company, the Trustee or any agent of the Company or the Trustee from
giving effect to any written certification, proxy or other authorization
furnished by DTC or impair, as between DTC and its Participants, the operation
of customary practices of DTC governing the exercise of the rights of an owner
of a beneficial interest in any Global Security.
The provisions of the "Operating Procedures of the Euroclear System,"
"Terms and Conditions Governing Use of Euroclear," the "General Terms and
Conditions of Clearstream" and "Customer Handbook" of Clearstream, and
successors provisions, shall be applicable to interests in the Regulation S
Global Security that are held by the Participants through Euroclear or
Clearstream.
(b) Physical Securities. Securities offered and sold to Institutional
Accredited Investors who are not also QIBs may be issued substantially in the
form of Exhibit A hereto, in certificated form and issued in the names of the
purchasers thereof (or their nominees), duly executed by the Company and
authenticated by the Trustee as hereinafter provided. Securities in certificated
form shall be referred to herein as the "Physical Securities."'
(c) Securities. The provisions of the form of Securities contained in
Exhibit A hereto are incorporated herein by reference. The Securities and the
Trustee's Certificates of Authentication shall be substantially in the form of
Exhibit A hereto. The Securities may have notations, legends or endorsements
required by law, stock exchange rule or usage. The Company shall approve the
form of the Securities and any notation, legend or endorsement (including
notations relating to the Guarantees) on them. If required, the Securities shall
bear the appropriate legend regarding original issue discount for federal income
tax purposes. Each Security shall
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be dated the date of its authentication. The terms and provisions contained in
the Securities shall constitute, and are hereby expressly made, a part of this
Indenture.
SECTION 2.02. Execution and Authentication.
Two Officers of the Company shall sign the Securities for the Company
by manual or facsimile signature.
If an Officer whose signature is on a Security no longer holds that
office at the time the Trustee authenticates the Security, the Security shall be
valid nevertheless.
A Security shall not be valid until an authorized officer of the
Trustee manually signs the certificate of authentication on the Security. The
signature shall be conclusive evidence that the Security has been authenticated
under this Indenture.
The Trustee shall authenticate (i) Initial Securities for original
issue in the aggregate principal amount of $725.0 million, (ii) Subsequent
Securities in accordance with this paragraph, (iii) Private Exchange Securities
from time to time only in exchange for a like principal amount of Initial
Securities or Subsequent Securities and (iv) Unrestricted Securities from time
to time only in exchange for a like principal amount of Initial Securities or
Subsequent Securities, in each case upon a written order signed by an Officer of
the Company. The order shall specify the amount of Securities to be
authenticated and the date on which the original issue of Securities is to be
authenticated. The order shall also provide instructions concerning
registration, amounts for each Holder and delivery. The aggregate principal
amount of the Securities outstanding under this Indenture at any time shall
consist of (i) $725.0 million aggregate principal amount of Securities issued on
the Issue Date and (ii) one or more additional series of Securities issued
subsequent to the Issue Date (the "Subsequent Securities"). The Subsequent
Securities may be issued from time to time and only in compliance with the
provisions of Section 4.04 and the other provisions of this Indenture. The
Securities shall be issued only in registered form, without coupons and only in
denominations of $1,000 and any integral multiple thereof.
SECTION 2.03. Registrar and Paying Agent.
The Company shall maintain an office or agency where Securities may be
presented for registration of transfer or for exchange ("Registrar") and an
office or agency where Securities may be presented for payment ("Paying Agent").
The Company may have one or more co-Registrars and one or more additional paying
agents. The term "Paying Agent" includes any additional paying agent.
The Company shall enter into an appropriate agency agreement with any
Agent not a party to this Indenture. The agreement shall implement the
provisions of this Indenture that relate to such Agent and shall, if required,
incorporate the provisions of the TIA. The Company shall notify the Trustee in
writing of the name and address of any such Agent. If the Company fails to
maintain a Registrar or Paying Agent, the Trustee shall act as such and shall be
entitled to appropriate compensation in accordance with the provisions of
Section 7.07.
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The Company initially appoints the Trustee as Registrar and Paying
Agent. The Company shall give written notice to the Trustee in the event that
the Company decides to act as Registrar. None of the Company, its Subsidiaries
or any of their Affiliates may act as Paying Agent.
SECTION 2.04. Paying Agent To Hold Money in Trust.
The Company shall require each Paying Agent to agree in writing to
hold in trust for the benefit of Securityholders or the Trustee all money held
by the Paying Agent for the payment of principal of or interest on the
Securities (whether such money has been paid to it by the Company or any other
obligor on the Securities), and the Company and the Paying Agent shall each
notify the Trustee in writing of any default by the Company (or any other
obligor on the Securities) in making any such payment. The Company at any time
may require a Paying Agent to pay all money held by it to the Trustee and
account for any funds disbursed, and the Trustee may at any time during the
continuance of any payment default, upon written request to a Paying Agent,
require such Paying Agent to pay all money held by it to the Trustee and to
account for any funds disbursed. Upon making such payment the Paying Agent shall
have no further liability for the money delivered to the Trustee.
SECTION 2.05. Securityholder Lists.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
Securityholders. If the Trustee is not the Registrar, the Company shall furnish
to the Trustee at least five Business Days before each Interest Payment Date and
at such other times as the Trustee may request in writing a list in such form
and as of such date as the Trustee may reasonably require of the names and
addresses of Securityholders.
SECTION 2.06. Transfer and Exchange.
(a) Transfer and Exchange of Global Securities. Transfer of the Global
Securities shall be by delivery. Global Securities will be exchanged by the
Company for Physical Securities only (i) if DTC notifies the Company that it is
unwilling or unable to continue to act as depositary with respect to the Global
Securities or ceases to be a clearing agency registered under the Exchange Act
and, in either case, a successor depositary registered as a clearing agency
under the Exchange Act is not appointed by the Company within 120 days, (ii) at
any time if the Company in its sole discretion determines that the Global
Securities (in whole but not in part) should be exchanged for Physical
Securities or (iii) if the owner of an interest in the Global Securities
requests such Physical Securities, following an Event of Default under this
Indenture, in a writing delivered through DTC to the Trustee.
Upon the occurrence of any of the events specified in the previous
paragraph, Physical Securities shall be issued in such names as DTC shall
instruct the Trustee in writing, and the Trustee shall cause the aggregate
principal amount of the applicable Global Security to be reduced accordingly and
direct DTC to make a corresponding reduction in its book-entry system. The
Company shall execute and the Trustee shall authenticate and make available for
de-
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livery to the Person designated in the instructions a Physical Security in the
appropriate principal amount. The Trustee shall make available for delivery such
Physical Securities to the Persons in whose names such Securities are so
registered. Physical Securities issued in exchange for an Initial Global
Security pursuant to this Section 2.06(a) shall bear the Securities Act Legend
and shall be subject to all restrictions on transfer contained therein. Global
Securities may also be exchanged or replaced, in whole or in part, as provided
in Sections 2.07 and 2.10. Every Security authenticated and made available for
delivery in exchange for, or in lieu of, a Global Security or any portion
thereof, pursuant to Section 2.07 or 2.10, shall be authenticated and made
available for delivery in the form of, and shall be, a Global Security. A Global
Security may not be exchanged for another Security other than as provided in
this Section 2.06(a).
(b) Transfer and Exchange of Interests in Global Securities. The
transfer and exchange of interests in Global Securities shall be effected
through DTC, in accordance with this Indenture and the procedures of DTC
therefor. Interests in Initial Global Securities shall be subject to
restrictions on transfer comparable to those set forth herein to the extent
required by the Securities Act. The Trustee shall have no obligation to
ascertain DTC's compliance with any such restrictions on transfer. Transfers of
interests in Global Securities shall also require compliance with subparagraph
(i) below, as well as one or more of the other following subparagraphs as
applicable:
(i) All Transfers and Exchanges of Interests in Global Securities. In
connection with all transfers and exchanges of interests in Global
Securities (other than transfers of interests in a Global Security to
Persons who take delivery thereof in the form of an interest in the same
Global Security), the transferor of such interest must deliver to the
Registrar (1) instructions given in accordance with the Applicable
Procedures from a Participant or an indirect Participant directing DTC to
credit or cause to be credited an interest in the specified Global Security
in an amount equal to the interest to be transferred or exchanged, (2) a
written order given in accordance with the Applicable Procedures containing
information regarding the Participant account to be credited with such
increase and (3) instructions given by the Holder of the Global Security to
effect the transfer referred to in (1) and (2) above.
(ii) Transfer of Interests in the Same Initial Global Security.
Interests in any Initial Global Security may be transferred to Persons who
take delivery thereof in the form of an interest in the same Initial Global
Security in accordance with the transfer restrictions set forth in Section
2.06(f) hereof.
(iii) Transfer of Interests to Another Initial Global Security.
Interests in any Initial Global Security may be transferred to Persons who
take delivery thereof in the form of an interest in another Initial Global
Security if the Registrar receives the following:
(A) if the transferee will take delivery in the form of an
interest in the 144A Global Security, then the transferor must deliver
a certificate in the form of Exhibit B hereto, including the
certifications in item 1 thereof; or
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(B) if the transferee will take delivery in the form of an
interest in the Regulation S Global Security, then the transferor must
deliver a certificate in the form of Exhibit B hereto, including the
certifications in item 2 thereof.
(iv) Transfer and Exchange of Interests in Initial Global Security for
Interests in an Unrestricted Global Security. Interests in any Initial
Global Security may be exchanged by the holder thereof for an interest in
the Unrestricted Global Security or transferred to a Person who takes
delivery thereof in the form of an interest in the Unrestricted Global
Security if:
(A) such exchange or transfer is effected pursuant to the
Exchange Registration Statement in accordance with the Registration
Rights Agreement;
(B) any such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration Rights
Agreement; or
(C) the Registrar receives the following:
(1) if the holder of such an interest in an Initial Global
Security proposes to exchange it for an interest in the
Unrestricted Global Security, a certificate from such Holder in
the form of Exhibit C hereto, including the certifications in
item 1(a) thereof;
(2) if the holder of such an interest in an Initial Global
Security proposes to transfer it to a Person who shall take
delivery thereof in the form of an interest in an Unrestricted
Global Security, a certificate in the form of Exhibit B hereto,
including the certification in item 4 thereof; and
(3) in each such case set forth in this paragraph (C), an
Opinion of Counsel in form reasonably acceptable to the Company,
to the effect that such exchange or transfer is in compliance
with the Securities Act and that the restrictions on transfer
contained herein and in Section 2.06(f) hereof are not required
in order to maintain compliance with the Securities Act.
If any such transfer is effected pursuant to paragraph (B) above at a
time when an Unrestricted Global Security has not yet been issued, the Company
shall issue and, upon receipt of an authentication order in accordance with
Section 2.02, the Trustee shall authenticate one or more Unrestricted Global
Securities in an aggregate principal amount equal to the principal amount of
interests in the Initial Global Security transferred pursuant to paragraph (B)
above.
(v) Notation by the Trustee of Transfer of Interests Among Global
Securities. Upon satisfaction of the requirements for transfer of interests
in Global Securities pursuant to clauses (iii) or (iv) above, the Trustee,
as Registrar, shall reduce or cause to be reduced the aggregate princi-
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pal amount of the relevant Global Security from which the interests are
being transferred, and increase or cause to be increased the aggregate
principal amount of the Global Security to which the interests are being
transferred, in each case, by the principal amount so transferred and shall
direct DTC to make corresponding adjustments in its book-entry system. No
transfer of interests of a Global Security shall be effected until, and any
transferee pursuant thereto shall succeed to the rights of a holder of such
interests only when, the Registrar has made appropriate adjustments to the
applicable Global Security in accordance with this paragraph.
(c) Transfer or Exchange of Physical Securities for Interests in a
Global Security.
(i) If any Holder of Physical Securities required to contain the
Securities Act Legend proposes to exchange such Securities for an interest
in a Global Security or to transfer such Physical Securities to a Person
who takes delivery thereof in the form of an interest in a Global Security,
then, upon receipt by the Registrar of the following documentation (all of
which may be submitted by facsimile):
(A) if the Holder of such Physical Registered Securities proposes
to exchange such Securities for an interest in an Initial Global
Security, a certificate from such Holder in the form of Exhibit C
hereto, including the certifications in item 2 thereof;
(B) if such Physical Securities are being transferred to a QIB in
accordance with Rule 144A under the Securities Act, a certificate to
the effect set forth in Exhibit B hereto, including the certifications
in item 1 thereof; or
(C) if such Physical Securities are being transferred to a
Non-U.S. Person (as defined in Regulation S) in an offshore
transaction in accordance with Rule 904 under the Securities Act, a
certificate to the effect set forth in Exhibit B hereto, including the
certifications in item 2 thereof,
the Trustee shall cancel the Physical Securities, increase or cause to be
increased the aggregate principal amount of, in the case of clause (B)
above, the 144A Global Security, in the case of clause (C) above, the
Regulation S Global Security, and direct DTC to make a corresponding
increase in its book-entry system.
(ii) A Holder of Physical Securities required to contain the
Securities Act Legend may exchange such Securities for an interest in the
Unrestricted Global Security or transfer such Restricted Physical
Securities to a Person who takes delivery thereof in the form of an
interest in the Unrestricted Global Security only:
(A) if such exchange or transfer is effected pursuant to the
Exchange Registration Statement in accordance with the Registration
Rights Agreement;
(B) any such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration Rights
Agreement;
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(C) upon receipt by the Registrar of the following documentation
(all of which may be submitted by facsimile):
(1) if the Holder of such Physical Securities proposes to
exchange such Securities for an interest in the Unrestricted
Global Security, a certificate from such Holder in the form of
Exhibit C hereto, including the certifications in item 1(b)
thereof;
(2) if the Holder of such Registered Securities proposes to
transfer such Securities to a Person who shall take delivery
thereof in the form of an interest in the Unrestricted Global
Security, a certificate in the form of Exhibit B hereto,
including the certifications in item 4 thereof; and
(3) in each such case set forth in this paragraph (C), an
Opinion of Counsel in form reasonably acceptable to the Company,
to the effect that such exchange or transfer is in compliance
with the Securities Act and that the restrictions on transfer
contained herein and in Section 2.06(f) hereof are not required
in order to maintain compliance with the Securities Act.
If any such transfer is effected pursuant to paragraph (B) above at a
time when an Unrestricted Global Security has not yet been issued, the Company
shall issue and, upon receipt of an authentication order in accordance with
Section 2.02, the Trustee shall authenticate one or more Unrestricted Global
Securities in an aggregate principal amount equal to the principal amount of
Physical Securities transferred pursuant to paragraph (B) above.
(d) Transfer and Exchange of Physical Securities.
(i) Transfer of a Physical Security to Another Physical Security.
Following the occurrence of one or more of the events specified in Section
2.06(a), a Physical Security may be transferred to Persons who take
delivery thereof in the form of another Physical Security if the Registrar
receives the following:
(A) if the transfer is being effected pursuant to and in
accordance with Rule 144A, then the transferor must deliver a
certificate in the form of Exhibit B hereto, including the
certifications in item 3(a) thereof; or
(B) if the transfer is being effected pursuant to and in
accordance with Regulation S, then the transferor must deliver a
certificate in the form of Exhibit B hereto, including the
certifications in item 3(b) thereof.
(ii) Transfer and Exchange of Restricted Physical Securities for
Unrestricted Physical Securities. Following the occurrence of one or more
of the events specified in Section 2.06(a), a Restricted Physical Security
may be exchanged by the Holder thereof for an Unrestricted Physical
Security or transferred to a Person who takes delivery thereof in the form
of an Unrestricted Physical Security if:
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(A) such exchange or transfer is effected pursuant to the
Exchange Registration Statement in accordance with the Registration
Rights Agreement;
(B) any such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration Rights
Agreement; or
(C) the Registrar receives a certificate from such holder in the
form of Exhibit C hereto, including the certifications in item 1(c)
thereof and an Opinion of Counsel in form reasonably acceptable to the
Company, to the effect that such exchange or transfer is in compliance
with the Securities Act and, that the restrictions on transfer
contained herein and in Section 2.06(f) hereof are not required in
order to maintain compliance with the Securities Act.
(iii) Exchange of Physical Securities. When Physical Securities are
presented by a Holder to the Registrar with a request to register the
exchange of such Physical Securities for an equal principal amount of
Physical Securities of other authorized denominations, the Registrar shall
make the exchange as requested only if the Physical Securities are endorsed
or accompanied by a written instrument of transfer in form satisfactory to
the Registrar duly executed by such Holder or by his attorney duly
authorized in writing and shall be issued only in the name of such Holder
or its nominee. The Physical Securities issued in exchange for Physical
Securities shall bear the Securities Act Legend and shall be subject to all
restrictions on transfer contained herein in each case to the same extent
as the Physical Securities so exchanged.
(iv) Return of Physical Securities. In the event of a transfer
pursuant to clauses (i) or (ii) above and the Holder thereof has delivered
certificates representing an aggregate principal amount of Securities in
excess of that to be transferred, the Company shall execute and the Trustee
shall authenticate and make available for delivery to the Holder of such
Security, without service charge, a new Physical Security or Securities of
any authorized denomination requested by the Holder, in an aggregate
principal amount equal to the portion of the Security not so transferred.
(e) Exchange Offer. Upon the occurrence of the Exchange Offer (as
defined in the Registration Rights Agreement) in accordance with the
Registration Rights Agreement, the Company shall issue and, upon receipt of an
authentication order in accordance with Section 2.02, the Trustee shall
authenticate one or more Unrestricted Global Securities in an aggregate
principal amount equal to the principal amount of the interests in the Initial
Global Securities tendered for acceptance (and not withdrawn) by persons
participating therein. Concurrently with the issuance of such Securities, the
Trustee shall cause the aggregate principal amount of the applicable Initial
Global Securities to be reduced accordingly and direct DTC to make a
corresponding reduction in its book-entry system. The Trustee shall cancel any
Restricted Physical Certificates in accordance with Section 2.11 hereof.
In the case that one or more of the events specified in Section
2.06(a) have occurred, upon the occurrence of such Exchange Offer, the Company
shall issue and, upon receipt of an authentication order in accordance with
Section 2.02, the Trustee shall authenticate Unre-
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stricted Physical Securities in an aggregate principal amount equal to the
principal amount of the Restricted Physical Securities tendered for acceptance
by persons participating therein.
(f) Legends. Each Initial Global Security and each Restricted Physical
Security shall bear the legend (the "Securities Act Legend") in substantially
the following form:
"THE SECURITY (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED
IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND THE SECURITY
EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE
ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH
PURCHASER OF THE SECURITY EVIDENCED HEREBY IS HEREBY NOTIFIED THAT THE
SELLER MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF
THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER. THE HOLDER OF THE
SECURITY EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE COMPANY THAT (A)
SUCH SECURITY MAY BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (1)(a)
TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (b) IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144 UNDER THE SECURITIES ACT OR (c)
OUTSIDE THE UNITED STATES TO A FOREIGN PERSON IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 904 UNDER THE SECURITIES ACT, (2) TO THE COMPANY OR
(3) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT AND, IN EACH CASE, IN
ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED
STATES OR ANY OTHER APPLICABLE JURISDICTION AND (B) THE HOLDER WILL, AND
EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER FROM IT OF THE
SECURITY EVIDENCED HEREBY OF THE RESALE RESTRICTIONS SET FORTH IN (A)
ABOVE."
(g) Global Security Legend. Each Global Security shall bear a legend
in substantially the following form:
"UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN
DEFINITIVE FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO A NOMINEE
OF DTC, OR BY ANY SUCH NOMINEE OF DTC, OR BY DTC TO A SUCCESSOR DEPOSITORY
OR A NOMINEE OF SUCH SUCCESSOR DEPOSITORY. UNLESS THIS CERTIFICATE IS
PRESENTED BY AN AUTHOR-
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IZED REPRESENTATIVE OF DTC, TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN
THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC),
ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.
"TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE,
BUT NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF OR
SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY
SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET
FORTH IN SECTION 2.06 OF THE INDENTURE."
(h) Cancellation and/or Adjustment of Global Securities. At such time
as all interests in the Global Securities have been exchanged for Physical
Securities, all Global Securities shall be returned to or retained and canceled
by the Trustee in accordance with Section 2.11 hereof. At any time prior to such
cancellation, if any interest in a Global Security is exchanged for an interest
in another Global Security or for Physical Securities, the principal amount of
Securities represented by such Global Security shall be reduced accordingly and
an endorsement shall be made on such Global Security, by the Trustee to reflect
such reduction.
(i) General Provisions Relating to All Transfers and Exchanges.
(i) To permit registrations of transfers and exchanges, the Company
shall execute and the Trustee shall authenticate Global Securities and
Physical Securities upon a written order signed by an Officer of the
Company or at the Registrar's request.
(ii) No service charge shall be made to a Holder for any registration
of transfer or exchange, but the Company may require payment of a sum
sufficient to cover any stamp or transfer tax or similar governmental
charge payable in connection therewith (other than any such stamp or
transfer taxes or similar governmental charge payable upon exchange or
transfer pursuant to Sections 2.10, 3.06, 4.05, 4.14 and 9.05 hereof).
(iii) All Global Securities and Physical Securities issued upon any
registration of transfer or exchange of Global Securities or Physical
Securities shall be the valid obligations of the Company, evidencing the
same debt, and entitled to the same benefits under this Indenture, as the
Global Securities or Physical Securities surrendered upon such registration
of transfer or exchange.
(iv) The Company shall not be required (A) to issue, to register the
transfer of or to exchange Securities during a period beginning at the
opening of 15 Business Days
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before the day of any mailing of notice of redemption of Securities under
Section 3.02 and ending at the close of business on the day of such
mailing, (B) to register the transfer of or to exchange any Security so
selected for redemption in whole or in part, except the unredeemed portion
of any Security being redeemed in part or (C) to register the transfer of
or to exchange a Security between a record date and the next succeeding
Interest Payment Date.
(v) Prior to due presentment for the registration of a transfer of any
Security, the Trustee, any Agent and the Company may deem and treat the
Person in whose name any Security is registered as the absolute owner of
such Security for the purpose of receiving payment of principal of and
interest on such Securities and for all other purposes, and none of the
Trustee, any Agent or the Company shall be affected by notice to the
contrary.
(vi) The Trustee shall have no obligation or duty to monitor,
determine or inquire as to compliance with any restrictions on transfer
imposed under this Indenture or under applicable law with respect to any
transfers of any interest in any Security (including any transfers between
or among Participants or beneficial owners of interests in any Global
Security) or Physical Security other than to require delivery of such
certificates and other documentation or evidence as are expressly required
by, and to do so if and when expressly required by the terms of, this
Indenture, and to examine the same to determine substantial compliance as
to form with the express requirements hereof.
SECTION 2.07. Replacement Securities.
If a mutilated Security is surrendered to the Trustee or if the Holder
of a Security claims that the Security has been lost, destroyed or wrongfully
taken, the Company shall issue and the Trustee shall authenticate a replacement
Security if the Trustee's requirements are met. The Holder shall provide an
indemnity bond in an amount sufficient in the judgment of the Company and the
Trustee to protect the Company, the Trustee or any Agent from any loss which any
of them may suffer if a Security is replaced. The Company and the Trustee each
may charge such Holder for its expenses in replacing such Security.
Every replacement Security is an additional obligation of the Company.
SECTION 2.08. Outstanding Securities.
Securities outstanding at any time are all Securities that have been
authenticated by the Trustee except for those canceled by it, those delivered to
it for cancellation and those described in this Section as not outstanding. A
Security does not cease to be outstanding because the Company or one of its
Affiliates holds the Security.
If a Security is replaced pursuant to Section 2.07, it ceases to be
outstanding unless the Trustee receives proof satisfactory to it that the
replaced Security is held by a bona fide purchaser.
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If the Paying Agent holds on a redemption date or Maturity Date money
sufficient to pay the principal of and interest on Securities payable on that
date, then on and after that date such Securities cease to be outstanding and
interest on them ceases to accrue.
SECTION 2.09. Treasury Securities.
In determining whether the Holders of the required principal amount of
Securities have concurred in any direction, waiver or consent, Securities owned
by the Company, any Subsidiary or any of their respective Affiliates shall be
disregarded, except that for the purposes of determining whether the Trustee
shall be protected in relying on any such direction, waiver or consent, only
Securities that the Trustee actually knows are so owned shall be so disregarded.
The Trustee may require an Officers' Certificate listing securities
owned by the Company, any Subsidiary or any of their respective Affiliates.
SECTION 2.10. Temporary Securities.
Until definitive Securities are ready for delivery, the Company may
prepare and the Trustee shall authenticate temporary Securities. Temporary
Securities shall be substantially in the form of definitive Securities but may
have variations that the Company considers appropriate for temporary Securities.
Without unreasonable delay, the Company shall prepare and the Trustee shall
authenticate definitive Securities in exchange for temporary Securities. Until
such exchange, temporary Securities shall be entitled to the same rights,
benefits and privileges as definitive Securities.
SECTION 2.11. Cancellation.
The Company at any time may deliver Securities to the Trustee for
cancellation. The Registrar and the Paying Agent shall forward to the Trustee
any Securities surrendered to them for transfer, exchange or payment. The
Trustee and no one else shall cancel all Securities surrendered for transfer,
exchange, payment or cancellation. The Company may not issue new Securities to
replace, reissue or resell Securities which the Company has redeemed, paid,
purchased on the open market or otherwise, or otherwise acquired or have been
delivered to the Trustee for cancellation. The Trustee (subject to the
record-retention requirements of the Exchange Act) may, but shall not be
required to, destroy canceled Securities.
SECTION 2.12. Defaulted Interest.
If the Company defaults in a payment of interest on the Securities, it
shall pay the defaulted interest, plus any interest payable on the defaulted
interest pursuant to Section 4.01 hereof, to the persons who are Securityholders
on a subsequent special record date, and such term, as used in this Section 2.12
with respect to the payment of any defaulted interest, shall mean the fifteenth
day next preceding the date fixed by the Company for the payment of defaulted
interest, whether or not such day is a Business Day. At least 15 days before
such special record date, the Company shall mail to each Securityholder and to
the Trustee a notice that states such special record date, the payment date and
the amount of defaulted interest to be paid.
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SECTION 2.13. CUSIP or ISIN Number.
The Company in issuing the Securities may use a "CUSIP" or "ISIN"
number, and if so, such CUSIP or ISIN number shall be included in notices of
redemption or exchange as a convenience to Holders; provided, however, that any
such notice may state that no representation is made as to the correctness or
accuracy of the CUSIP or ISIN number printed in the notice or on the Securities,
and that reliance may be placed only on the other identification numbers printed
on the Securities. The Company will promptly notify the Trustee of any change in
the CUSIP or ISIN number.
SECTION 2.14. Payments of Interest.
(a) The Holder of a Physical Security at the close of business on the
regular record date with respect to any Interest Payment Date shall be entitled
to receive the interest payable on such Interest Payment Date notwithstanding
any transfer or exchange of such Physical Security subsequent to the regular
record date and prior to such Interest Payment Date, except if and to the extent
the Company shall default in the payment of the interest due on such Interest
Payment Date, in which case such defaulted interest shall be paid in accordance
with Section 2.12; and in the event of an exchange of a Physical Security for a
beneficial interest in any Global Security subsequent to a regular record date
or any special record date and prior to or on the related Interest Payment Date
or other payment date under Section 2.12, any payment of the interest payable on
such payment date with respect to any such Physical Security shall be made to
the Person in whose name such Physical Security was registered on such record
date. Payments of interest on the Global Securities will be made on each
Interest Payment Date to the Holder of the Global Security on the record date
with respect thereto; provided, however, that, in the event of an exchange of
all or a portion of a Global Security for a Physical Security subsequent to the
regular record date or any special record date and prior to or on the related
Interest Payment Date or other payment date under Section 2.12, any payment of
interest payable on such Interest Payment Date or other payment date with
respect to the Physical Security shall be made to the Holder of the Global
Security as of the applicable record date.
(b) Subject to Section 4.01, interest shall be paid to DTC, with
respect to any Global Security held by DTC, on the applicable Interest Payment
Date in accordance with instructions received from DTC at least five Business
Days before the applicable Interest Payment Date.
ARTICLE THREE
REDEMPTION
SECTION 3.01. Notices to Trustee.
If the Company elects to redeem Securities pursuant to paragraph 5 of
the Securities at the applicable redemption price set forth thereon, it shall
notify the Trustee in writing of the redemption date and the principal amount of
Securities to be redeemed.
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The Company shall give the notice provided for in this Section 3.01 at
least 45 days before the redemption date (unless a shorter notice shall be
agreed to by the Trustee in writing) but not more than 60 days before the
redemption date, together with an Officers' Certificate stating that such
redemption will comply with the conditions contained herein.
SECTION 3.02. Selection of Securities To Be Redeemed.
If less than all of the Securities are to be redeemed pursuant to
paragraph 5 thereof, the Trustee shall select the Securities to be redeemed, in
accordance with the rules of any national securities exchange on which the
Securities may be listed or, if the Securities are not so listed, pro rata or by
lot or in such other manner as the Trustee shall deem appropriate and fair. The
Trustee shall make the selection from the Securities then outstanding, subject
to redemption and not previously called for redemption. The Trustee may select
for redemption portions (equal to $1,000 or any integral multiple thereof) of
the principal amount of Securities that have denominations larger than $1,000.
Provisions of this Indenture that apply to Securities called for redemption also
apply to portions of Securities called for redemption.
SECTION 3.03. Notice of Redemption.
At least 30 days but not more than 60 days before a redemption date,
the Company shall mail a notice of redemption by first class mail to each Holder
whose Securities are to be redeemed.
The notice shall identify the Securities to be redeemed and shall
state:
(1) the redemption date;
(2) the redemption price;
(3) the CUSIP number (subject to Section 2.13);
(4) the name and address of the Paying Agent to which the Securities
are to be surrendered for redemption;
(5) that Securities called for redemption must be surrendered to the
Paying Agent to collect the redemption price;
(6) that, unless the Company defaults in making the redemption
payment, interest on Securities called for redemption ceases to accrue on
and after the redemption date and the only remaining right of the Holders
is to receive payment of the redemption price upon surrender to the Paying
Agent; and
(7) if any Security is being redeemed in part, the portion of the
principal amount of such Security to be redeemed and that, after the
redemption date, upon surrender of such Security, a new Security or
Securities in principal amount equal to the unredeemed portion thereof will
be issued.
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At the Company's request, the Trustee shall give the notice of
redemption on behalf of the Company, in the Company's name and at the Company's
expense.
SECTION 3.04. Effect of Notice of Redemption.
Once a notice of redemption is mailed, Securities called for
redemption become due and payable on the redemption date and at the redemption
price. Upon surrender to the Paying Agent, such Securities shall be paid at the
redemption price, plus accrued interest thereon to the redemption date, but
interest installments whose maturity is on or prior to such redemption date
shall be payable to the Holders of record at the close of business on the
relevant record dates referred to in the Securities. The Trustee shall not be
required to (i) issue, authenticate, register the transfer of or exchange any
Security during a period beginning 15 days before the date a notice of
redemption is mailed and ending at the close of business on the date the
redemption notice is mailed, or (ii) register the transfer or exchange of any
Security so selected for redemption in whole or in part, except the unredeemed
portion of any Security being redeemed in part.
SECTION 3.05. Deposit of Redemption Price.
On or prior to the redemption date, the Company shall deposit with the
Paying Agent money sufficient to pay the redemption price of and accrued
interest on all Securities to be redeemed on that date other than Securities or
portions thereof called for redemption on that date which have been delivered by
the Company to the Trustee for cancellation. If the Company complies with the
provisions of this paragraph, on and after the redemption date, interest shall
cease to accrue on the Securities or the portions of the Securities called for
redemption.
SECTION 3.06. Securities Redeemed in Part.
Upon surrender of a Security that is redeemed in part, the Trustee
shall authenticate for the Holder a new Security equal in principal amount to
the unredeemed portion of the Security surrendered.
ARTICLE FOUR
COVENANTS
SECTION 4.01. Payment of Securities.
The Company shall pay the principal of and interest on the Securities
in the manner provided in the Securities. An installment of principal or
interest shall be considered paid on the date due if the Trustee or Paying Agent
holds on that date money designated for and sufficient to pay the installment in
full and is not prohibited from paying such money to the Holders of the
Securities pursuant to the terms of this Indenture.
The Company shall pay interest on overdue principal at the same rate
per annum borne by the Securities. The Company shall pay interest on overdue
installments of interest at the same rate per annum borne by the Securities, to
the extent lawful.
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SECTION 4.02. Maintenance of Office or Agency.
The Company shall maintain in the Borough of Manhattan, The City of
New York, an office or agency where Securities may be surrendered for
registration of transfer or exchange or for presentation for payment and where
notices and demands to or upon the Company in respect of the Securities and this
Indenture may be served. The Company shall give prompt written notice to the
Trustee of the location, and any change in the location, of such office or
agency. If at any time the Company shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices and demands may be made or served at the
address of the Trustee set forth in Section 11.02.
The Company may also from time to time designate one or more other
offices or agencies where the Securities may be presented or surrendered for any
or all such purposes and may from time to time rescind such designations;
provided, however, that no such designation or rescission shall in any manner
relieve the Company of its obligation to maintain an office or agency in the
Borough of Manhattan, The City of New York, for such purposes. The Company shall
give prompt written notice to the Trustee of any such designation or rescission
and of any change in the location of any such other office or agency.
The Company hereby designates the office of the Trustee set forth in
Section 11.02 (the "Corporate Trust Office") as one such office or agency of the
Company in accordance with Section 2.03.
SECTION 4.03. Limitation on Transactions with Affiliates.
The Company will not, and will not cause or permit any Restricted
Subsidiary to, directly or indirectly, conduct any business or enter into, renew
or extend any transaction with any of their respective Affiliates or any
beneficial holder of 10% or more of any class of Capital Stock of the Company or
Triton PCS Holdings, Inc., including, without limitation, the purchase, sale,
lease or exchange of property, the rendering of any service, or the making of
any guarantee, loan, advance or Investment, either directly or indirectly,
unless the terms of such transaction are at least as favorable as the terms that
could be obtained at such time by the Company or such Restricted Subsidiary, as
the case may be, in a comparable transaction made on an arms'-length basis with
a Person that is not such an Affiliate; provided, however, that (x) in any
transaction involving aggregate consideration in excess of $10.0 million, the
Company shall deliver an Officers' Certificate to the Trustee stating that a
majority of the Disinterested Directors of either (i) the Board of Triton PCS
Holdings, Inc., if at the time of such transaction, the Company is a Subsidiary
of Triton PCS Holdings, Inc. or (ii) the Board of the Company, if, at the time
of such transaction the Company is not a Subsidiary of Triton PCS Holdings,
Inc., have determined, in their good faith judgment, that the terms of such
transaction are at least as favorable as the terms that could be obtained by the
Company or such Restricted Subsidiary, as the case may be, in a comparable
transaction made on an arms'-length basis between unaffiliated parties and (y)
if the aggregate consideration is in excess of $25.0 million, the Company shall
also deliver to the Trustee, prior to the consummation of the transaction, the
favorable written opinion of a nationally recognized accounting, appraisal or
investment banking firm as to the fairness of the transaction to Holders, from a
financial point of view.
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Notwithstanding the foregoing, the restrictions set forth in this
Section 4.03 shall not apply to (i) transactions between or among the Company
and/or any Restricted Subsidiaries, (ii) any Restricted Payment or Permitted
Investment permitted by Section 4.06, (iii) directors' fees, indemnification and
similar arrangements, officers' indemnification, employee stock option or
employee benefit plans and employee salaries and bonuses paid or created in the
ordinary course of business, (iv) any other agreement in effect on the Issue
Date, as the same shall be amended from time to time; provided, however, that
any material amendment shall be required to comply with the provisions of the
preceding paragraph of this Section 4.03, (v) transactions with AT&T
Corporation, AT&T Wireless Services, Inc. and AT&T Wireless PCS LLC or any of
their affiliates (collectively, "AT&T") relating to the marketing or provision
of telecommunication services or related hardware, software or equipment on
terms that are no less favorable (when taken as a whole) to the Company or such
Restricted Subsidiary, as applicable, than those available from unaffiliated
third parties, (vi) transactions involving the leasing or sharing or other use
by the Company or any Restricted Subsidiary of communications network facilities
(including, without limitation, cable or fiber lines, equipment or transmission
capacity) of any Affiliate of the Company or any beneficial holder of 10% or
more of any class of Capital Stock of the Company or Triton PCS Holdings, Inc.
(such Affiliate or holder being a "Related Party") on terms that are no less
favorable (when taken as a whole) to the Company or such Restricted Subsidiary,
as applicable, than those available from such Related Party to unaffiliated
third parties, (vii) transactions involving the provision of telecommunication
services by a Related Party in the ordinary course of its business to the
Company or any Restricted Subsidiary, or by the Company or any Restricted
Subsidiary to a Related Party, on terms that are no less favorable (when taken
as a whole) to the Company or such Restricted Subsidiary, as applicable, than
those available from such Related Party to unaffiliated third parties, (viii)
any sales agency agreements pursuant to which an Affiliate has the right to
market any or all of the products or services of the Company or any of the
Restricted Subsidiaries, and (ix) customary commercial banking, investment
banking, underwriting, placement agent or financial advisory fees paid in
connection with services rendered to the Company and its subsidiaries in the
ordinary course.
SECTION 4.04. Limitation on Incurrence of Indebtedness.
The Company shall not, and shall not cause or permit any Restricted
Subsidiary to, directly or indirectly, Incur any Indebtedness (including
Acquired Indebtedness), except:
(i) Indebtedness of the Company, if after giving effect to the
Incurrence of such Indebtedness and the receipt and application or use of
the net proceeds thereof (including, without limitation, the application or
use of the net proceeds therefrom to repay Indebtedness, consummate an
Asset Acquisition or make any Restricted Payment), the ratio of (x) Total
Consolidated Indebtedness to (y) Annualized Pro Forma Consolidated
Operating Cash Flow would be less than 7.0 to 1.0; provided, however, that
such Indebtedness proposed to be Incurred may not be Senior Indebtedness
unless, after giving effect to the Incurrence, receipt and application or
use of the net proceeds therefrom, the ratio of Total Consolidated Senior
Indebtedness to Annualized Pro Forma Consolidated Operating Cash Flow is
less than 5.0 to 1.0;
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(ii) Indebtedness of the Company and the Guarantors Incurred under one
or more Senior Credit Facilities in a principal amount at any one time
outstanding not to exceed $250.0 million, less the amount in excess of
$50.0 million Incurred and outstanding pursuant to clause (iii) below, in
the aggregate for all such Senior Credit Facilities; provided, however,
that, after giving effect to such Incurrence and the receipt and
application or use of the net proceeds therefrom, the ratio of Total
Consolidated Senior Indebtedness to Annualized Pro Forma Consolidated
Operating Cash Flow is less than 5.0 to 1.0;
(iii) Indebtedness of the Company and the Guarantors outstanding from
time to time pursuant to any Vendor Credit Arrangement in a principal
amount at any one time outstanding not to exceed $50.0 million, plus an
amount equal to the unused and available amount under clause (ii) above;
provided, however, that, after giving effect to such Incurrence and the
receipt and application or use of the net proceeds therefrom, the ratio of
Total Consolidated Senior Indebtedness to Annualized Pro Forma Consolidated
Operating Cash Flow is less than 5.0 to 1.0;
(iv) Indebtedness owed by the Company to any Guarantor or Indebtedness
owed by a Guarantor to the Company or another Guarantor; provided, however,
that upon either (x) the transfer or other disposition by such Guarantor or
the Company of any Indebtedness so permitted under this clause (iv) to a
Person other than the Company or another Guarantor or (y) the issuance
(other than directors' qualifying shares), sale, transfer or other
disposition of shares of Capital Stock or other ownership interests
(including by consolidation or merger) of such Guarantor to a Person other
than the Company or another such Guarantor, the exception provided by this
clause (iv) shall no longer be applicable to such Indebtedness and such
Indebtedness shall be deemed to have been Incurred at the time of any such
issuance, sale, transfer or other disposition, as the case may be;
(v) Indebtedness of the Company or any Guarantor under any interest
rate agreement to the extent entered into to protect the Company or such
Guarantor from fluctuations in interest rates on any other Indebtedness
permitted under this Indenture (including the Notes) and not for
speculative purposes;
(vi) Indebtedness Incurred to Refinance any Indebtedness Incurred
under the prior clauses (i) or (iii) above, the Notes, the Guarantees, the
Company's 11% Senior Subordinated Discount Notes due 2008, the Company's
93/8% Senior Subordinated Notes due 2011, the Company's 8 3/4% Senior
Subordinated Notes due 2011 or the guarantees of any such notes; provided,
however, that (x) such Indebtedness does not exceed the principal amount
(or accreted value, if less) of the Indebtedness so Refinanced plus the
amount of any premium required to be paid in connection with such
Refinancing pursuant to the terms of the Indebtedness being Refinanced or
the amount of any premium reasonably determined by the issuer of such
Indebtedness as necessary to accomplish such Refinancing by means of a
tender offer, exchange offer, or privately negotiated repurchase, plus the
expenses of such issuer reasonably incurred in connection therewith and
(y)(1) in the case of any Refinancing of Indebtedness that is ranked
equally in right of payment with the Notes, such Refinancing Indebtedness
ranks equally in right of pay-
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ment with or subordinate to the Notes in right of payment, and, in the case
of any Refinancing of Indebtedness that is subordinate to the Notes in
right of payment, such Refinancing Indebtedness is subordinate in right of
payment to the Notes on terms no less favorable to the Holders than those
contained in the Indebtedness being Refinanced, (2) in either case the
Refinancing Indebtedness by its terms, or by the terms of any agreement or
instrument pursuant to which such Indebtedness is issued, does not have an
Average Life that is less than the remaining Average Life of the
Indebtedness being Refinanced and (3) any Indebtedness Incurred to
Refinance any indebtedness is Incurred by the obligor on the Indebtedness
being Refinanced or by the Company;
(vii) Indebtedness of the Company under the Private Exchange
Securities and Unrestricted Securities, each of which have been issued only
in exchange for a like principal amount of the Initial Global Securities
and Indebtedness of the Guarantors under the Guarantee incurred in
accordance with this Indenture;
(viii) Capital Lease Obligations of the Company or any Restricted
Subsidiary with respect to the leasing by the Company or any Restricted
Subsidiary of tower sites and equipment; provided, that such Capital Lease
Obligations shall not exceed $50.0 million in aggregate principal amount at
any time outstanding;
(ix) Indebtedness of the Company or any Guarantor consisting of a
guarantee of Indebtedness of the Company or a Restricted Subsidiary of the
Company otherwise permitted to be incurred by another provision of this
Section 4.04;
(x) Indebtedness of the Company or any Restricted Subsidiary in
respect of statutory obligations, performance, surety or appeal bonds or
other obligations of a like nature incurred in the ordinary course of
business; and
(xi) Indebtedness of the Company or any Guarantor not otherwise
permitted to be Incurred pursuant to clauses (i) through (x) above which,
together with any other outstanding Indebtedness Incurred pursuant to this
clause (xi), has an aggregate principal amount not in excess of $100.0
million at any time outstanding.
Indebtedness of a Person existing at the time such Person becomes a
Restricted Subsidiary or that is secured by a Lien on an asset acquired by the
Company or a Restricted Subsidiary (whether or not such Indebtedness is assumed
by the acquiring Person) shall be deemed incurred at the time the Person becomes
a Restricted Subsidiary or at the time of the asset acquisition, as the case may
be.
For purposes of determining compliance with this Section 4.04, in the
event that an item of Indebtedness meets the criteria of more than one of the
categories of Indebtedness permitted pursuant to clauses (i) through (xi) above,
the Company shall, in its sole discretion, be permitted to classify such item of
Indebtedness in any manner that complies with this Section 4.04 and may from
time to time reclassify such item of Indebtedness in any manner that would
comply with this Section 4.04 at the time of such reclassification. Accrual of
interest and the
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accretion of accreted value will not be deemed to be an incurrence of
Indebtedness for purposes of this Section 4.04
SECTION 4.05. Limitation on Certain Asset Dispositions.
The Company shall not, and shall not cause or permit any Restricted
Subsidiary to, directly or indirectly, make any Asset Dispositions unless:
(i) the Company or such Restricted Subsidiary, as the case may be,
receives consideration for such Asset Disposition at least equal to the Fair
Market Value of the assets sold or disposed of, as determined by either (x) the
Board of Triton PCS Holdings, Inc., if at the time of such Asset Disposition,
the Company is a Subsidiary of Triton PCS Holdings, Inc. or (y) the Board of the
Company if, at the time of such Asset Disposition, the Company is not a
Subsidiary of Triton PCS Holdings, Inc., in good faith and evidenced by a
resolution of such Board filed with the Trustee;
(ii) other than in the case of a Permitted Asset Swap, not less than
75% of the consideration received by the Company or such Restricted Subsidiary
from the disposition consists of (x) cash or Cash Equivalents, (y) the
assumption of Indebtedness (other than non-recourse Indebtedness or any
Subordinated Indebtedness) of the Company or such Restricted Subsidiary or other
obligations relating to such assets (accompanied by the irrevocable
unconditional release of the Company or such Restricted Subsidiary from all
liability on the Indebtedness or other obligations assumed) or (z) notes or
other obligations received by the Company or such Restricted Subsidiary from
such transferee that are converted by the Company or such Restricted Subsidiary
into cash concurrently with the receipt of such notes or other obligations (to
the extent of the cash actually received by the Company); and
(iii) all Net Available Proceeds, less any amounts invested within 365
days of such Asset Disposition to acquire all or substantially all of the assets
of, or a majority of the Voting Stock of, an entity primarily engaged in a
Permitted Business, to make a capital expenditure, to acquire other long-term
assets that are used or useful in a Permitted Business, or to reduce obligations
under Senior Credit Facilities, are applied, on or prior to the 365th day after
such Asset Disposition (or earlier if the Company so elects), to make an Offer
to Purchase outstanding Notes, and other notes of the Company that rank pari
passu with the Notes to the extent required by the agreements governing the
terms of any such other notes at a purchase price in cash equal to 100% of the
aggregate principal amount plus accrued and unpaid interest to the Purchase
Date.
Notwithstanding the foregoing, the Company may defer making any Offer
to Purchase outstanding Notes until there are aggregate unutilized Net Available
Proceeds from Asset Dispositions otherwise subject to the two immediately
preceding sentences equal to or in excess of $15.0 million (at which time, the
entire unutilized Net Available Proceeds from Asset Dispositions otherwise
subject to the two immediately preceding sentences, and not just the amount in
excess of $15.0 million, shall be applied as required pursuant to this
paragraph). Any remaining Net Available Proceeds following the completion of the
required Offer to Purchase may be used by the Company for any other purpose
(subject to the other provisions of this Indenture) and the amount of Net
Available Proceeds then required to be otherwise applied in accordance with this
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covenant shall be reset to zero. The provisions of this Section 4.05 will not
apply to a transaction consummated in compliance with the provisions of Article
Five of this Indenture.
Pending application as set forth above, the Net Available Proceeds of
any Asset Disposition may be invested in Cash or Cash Equivalents or used to
reduce temporarily Indebtedness outstanding under any credit agreement to which
the Company is a party and pursuant to which it has incurred Indebtedness.
In the event that the Company makes an Offer to Purchase the
Securities, the Company shall comply with any applicable securities laws and
regulations, including any applicable requirements of Section 14(e) of, and Rule
14e-1 under, the Exchange Act.
SECTION 4.06. Limitation on Restricted Payments.
(a) The Company shall not, and shall not cause or permit any
Restricted Subsidiary to, directly or indirectly:
(i) declare or pay any dividend, or make any distribution of any kind
or character (whether in cash, property or securities), in respect of any
class of Capital Stock of the Company excluding, any dividends or
distributions payable solely in shares of Qualified Stock of the Company or
in options, warrants or other rights to acquire Qualified Stock of the
Company;
(ii) purchase, redeem or otherwise acquire or retire for value any
shares of Capital Stock of the Company, any options, warrants or rights to
purchase or acquire such shares or any securities convertible or
exchangeable into such shares (other than any such shares of Capital Stock,
options, warrants, rights or securities that are owned by the Company or a
Restricted Subsidiary);
(iii) make any Investment (other than a Permitted Investment) in any
Person, other than the Company or a Restricted Subsidiary; or
(iv) redeem, defease, repurchase, retire or otherwise acquire or
retire for value, prior to its scheduled maturity, repayment or any sinking
fund payment, Subordinated Indebtedness (each of the transactions described
in clauses (i) through (iv) (other than any exception to any such clause)
being a "Restricted Payment");
if, at the time thereof:
(1) a Default or an Event of Default shall have occurred and be
continuing at the time of or after giving effect to such Restricted
Payment;
(2) immediately after giving effect to such Restricted Payment, the
Company could not Incur at least $1.00 of additional Indebtedness pursuant
to Section 4.04(i) unless, prior to July 1, 2004, our Total Consolidated
Indebtedness is less than or equal to 75% of our Total Invested Capital;
and
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(3) immediately after giving effect to such Restricted Payment, the
aggregate amount of all Restricted Payments declared or made on or after
December 31, 2000 (including any Designation Amount) exceeds the sum
(without duplication) of: (i) the amount of (x) the Consolidated Cash Flow
of the Company after December 31, 2000, through the end of the latest full
fiscal quarter for which consolidated financial statements of the Company
are available preceding the date of such Restricted Payment (treated as a
single accounting period) less (y) 150% of the cumulative Consolidated
Interest Expense of the Company after December 31, 2000, through the end of
the latest full fiscal quarter for which consolidated financial statements
of the Company are available preceding the date of such Restricted Payment
(treated as a single accounting period), plus (ii) 100% of the aggregate
net cash proceeds (other than Excluded Cash Proceeds) and 75% of the Fair
Market Value of non-cash proceeds, as reasonably determined by the Board,
received by the Company as a capital contribution in respect of Qualified
Stock or from the proceeds of a sale of Qualified Stock made after April
29, 1998 (excluding in each case (x) the proceeds from a sale of Qualified
Stock to a Restricted Subsidiary and (y) the proceeds from a sale, other
than from a Public Sale, of Qualified Stock the proceeds of which are
applied to optionally redeem Notes prior to June 1, 2006), plus (iii) 100%
of the aggregate net cash proceeds and 75% of the Fair Market Value of
non-cash proceeds, as reasonably determined by the Board, received by the
Company or any Restricted Subsidiary from the sale, disposition or
repayment (other than to the Company or a Restricted Subsidiary) of any
Investment made after April 29, 1998 and constituting a Restricted Payment
in an amount equal to the lesser of (x) the return of capital with respect
to such Investment and (y) the initial amount of such Investment, in either
case, less the cost of disposition of such Investment, plus (iv) an amount
equal to the consolidated Net Investment on the date of Revocation made by
the Company and/or any of the Restricted Subsidiaries in any Subsidiary
that has been designated as an Unrestricted Subsidiary after April 29, 1998
upon its redesignation as a Restricted Subsidiary in accordance with
Section 4.19, less (v) the amount of all Restricted Payments made by the
Company or any of its Restricted Subsidiaries between April 29, 1998 and
prior to January 1, 2001. For purposes of the preceding clause (ii), the
value of the aggregate net cash proceeds received by the Company from, or
as a capital contribution in connection with, the issuance of Qualified
Stock either upon the conversion of convertible Indebtedness of the Company
or any of its Restricted Subsidiaries or in exchange for outstanding
Indebtedness of the Company or any of its Restricted Subsidiaries or upon
the exercise of options, warrants or rights will be the net cash proceeds
received by the Company or any of its Restricted Subsidiaries upon the
issuance of such Indebtedness, options, warrants or rights plus the
incremental amount received by the Company or any of its Restricted
Subsidiaries upon the conversions, exchange or exercise thereof. For
purposes of the preceding clause (iv), the value of the consolidated Net
Investment on the date of Revocation shall be equal to the Fair Market
Value of the aggregate amount of the Company's and/or any Restricted
Subsidiary's Investments in such Subsidiary on the applicable date of
Designation.
For purposes of determining the amount expended for Restricted Payments, cash
distributed shall be valued at the face amount thereof and property other than
cash shall be valued at its Fair Mar-
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ket Value on the date such Restricted Payment is made by the Company or a
Restricted Subsidiary, as the case may be.
(b) The foregoing provisions will not prohibit any of the following:
(i) the payment of any dividend or distribution within 60 days after
the date of declaration thereof, if at such date of declaration such
payment would comply with the provisions of this Indenture;
(ii) so long as no Default or Event of Default shall have occurred and
be continuing, the purchase, redemption, retirement or other acquisition of
any Capital Stock of the Company out of the net cash proceeds of the
substantially concurrent capital contribution to the Company in connection
with Qualified Stock or out of the net cash proceeds received by the
Company from the substantially concurrent issue or sale (other than to a
Restricted Subsidiary) of Qualified Stock; provided that (x) any such net
cash proceeds shall be excluded from Section 4.06(a)(3)(ii) and (y) such
proceeds, if from a sale other than a Public Sale, shall not be applied to
any optional redemption of Notes prior to June 1, 2006;
(iii) so long as no Default or Event of Default shall have occurred
and be continuing, the purchase, redemption, retirement, defeasance or
other acquisition of Subordinated Indebtedness of the Company made by
exchange for or conversion into, or out of the net cash proceeds received
by the Company from or out of a capital contribution to the Company in
connection with a substantially concurrent issue and sale (other than to a
Restricted Subsidiary) of (a) Qualified Stock (provided that (x) any such
net cash proceeds are excluded from Section 4.06(a)(3)(ii) and (y) such
proceeds, if from a sale other than a Public Sale, are not applied to an
optional redemption of Notes prior to June 1, 2006) or (b) other
Subordinated Indebtedness of the Company that has an Average Life equal to
or greater than the Average Life of the Subordinated Indebtedness being
purchased, redeemed, retired, defeased or otherwise acquired;
(iv) so long as no Default or Event of Default shall have occurred and
be continuing, the making of a direct or indirect Investment constituting a
Restricted Payment in an amount not to exceed the amount of the proceeds of
a capital contribution in respect of Qualified Stock or from the issue or
sale (other than to a Restricted Subsidiary) of Qualified Stock of the
Company; provided, however, that (x) any such net cash proceeds are
excluded from Section 4.06(a)(3)(ii) and (y) such proceeds, if from a sale
other than a Public Sale, are not applied to an optional redemption of
Notes prior to June 1, 2006;
(v) so long as no Default or Event of Default has occurred and is
continuing, dividends or distributions by the Company to Triton PCS
Holdings, Inc. to be used to repurchase, redeem, acquire or retire for
value any Capital Stock of Triton PCS Holdings, Inc. held by any member of
management of Triton PCS Holdings, Inc., the Company or any of its
Subsidiaries pursuant to any management equity subscription agreement,
stock option agreement or other similar agreement; provided, however, that
(x) the aggregate amount of such dividends or distributions shall not
exceed $2.0 million in any twelve-
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month period, (y) any unused amount in any twelve-month period may be
carried forward to one or more future periods and (z) the amount available
as of the Issue Date under this clause (v) shall be equal to $2.0 million
plus the amount available as of the Issue Date for such payments pursuant
to the comparable clause of any of the indentures governing the terms of
the 11% Senior Subordinated Discount Notes due 2008, the 9 3/8% Senior
Subordinated Notes due 2011, the 8 3/4% Senior Subordinated Notes due 2011
or this Indenture; or
(vi) the purchase, redemption or retirement of the Company's 11%
Senior Subordinated Discount Notes due 2008.
Restricted Payments made pursuant to clauses (i) and (v) of the immediately
preceding paragraph (b) shall be included in making the determination of
available amounts under Section 4.06(a)(3) and Restricted Payments made pursuant
to (ii), (iii), (iv) and (vi) of the immediately preceding paragraph (b) shall
not be included in making the determination of available amounts under Section
4.06(a)(3).
SECTION 4.07. Corporate Existence.
Subject to Article Five, the Company shall do or shall cause to be
done all things necessary to preserve and keep in full force and effect its
corporate existence and the corporate, partnership or other existence of each of
its Subsidiaries in accordance with the respective organizational documents of
each such Subsidiary and the rights (charter and statutory) and material
franchises of the Company and its Subsidiaries; provided, however, that the
Company shall not be required to preserve any such right or franchise, or the
corporate existence of any Subsidiary, if the Board of either (x) Triton PCS
Holdings, Inc. if at the time the Company is a Subsidiary of Triton PCS
Holdings, Inc. or (y) the Board of the Company if at the time the Company is not
a subsidiary of Triton PCS Holdings, Inc., shall determine that the preservation
thereof is no longer desirable in the conduct of the business of the Company and
its Subsidiaries, taken as a whole, and that the loss thereof is not, and will
not be, adverse in any material respect to the Holders; provided, further,
however, that a determination of either Board shall not be required in the event
of a merger of one or more Wholly Owned Subsidiaries with or into another Wholly
Owned Subsidiary or another Person, if the surviving Person is a Wholly Owned
Subsidiary organized under the laws of the United States or a State thereof or
of the District of Columbia.
SECTION 4.08. Payment of Taxes and Other Claims.
The Company shall pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, all material taxes, assessments and
governmental charges levied or imposed upon the Company or any of its
Subsidiaries or upon the income, profits or property of the Company or any of
its Subsidiaries; provided, however, that the Company shall not be required to
pay or discharge or cause to be paid or discharged any such tax, assessment,
charge or claim whose amount, applicability or validity is being contested in
good faith by appropriate proceedings or where the failure to effect such
payment is not adverse in any material respect to the Holders.
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SECTION 4.09. Notice of Defaults.
Within five days after becoming aware of any Default, if such Default
is then continuing, the Company shall promptly deliver an Officers' Certificate
to the Trustee specifying the details of such Default and the action which the
Company proposes to take with respect thereto.
SECTION 4.10. Maintenance of Properties.
The Company shall cause all material properties owned by or leased to
it or any of its Subsidiaries and used or useful in the conduct of its business
or the business of any of its Subsidiaries to be maintained and kept in normal
condition, repair and working order and supplied with all necessary equipment
and shall cause to be made all necessary repairs, renewals, replacements,
betterments and improvements thereof, all as in the judgment of the Company may
be necessary, so that the business carried on in connection therewith may be
properly and advantageously conducted at all times; provided, however, that
nothing in this Section 4.10 shall prevent the Company or any of its
Subsidiaries from discontinuing the use, operation or maintenance of any of such
properties, or disposing of any of them, if such discontinuance or disposal is,
in the judgment of the Board or of the board of directors of the Subsidiary
concerned, or of an officer (or other agent employed by the Company or of any of
its Subsidiaries) of the Company or such Subsidiary having managerial
responsibility for any such property, desirable in the conduct of the business
of the Company or any of its Subsidiaries, and if such discontinuance or
disposal is not adverse in any material respect to the Holders.
SECTION 4.11. Compliance Certificate.
The Company shall deliver to the Trustee within 45 days after the end
of each of the first three fiscal quarters of the Company and within 90 days
after the close of each fiscal year a certificate signed by two Officers, one of
whom shall be the chief financial officer, the chief executive officer or the
principal accounting officer, and the second of whom may be an Officer, an
assistant treasurer or assistant secretary of the Company, stating that a review
of the activities of the Company has been made under the supervision of the
signing officers with a view to determining whether a Default or Event of
Default has occurred and whether or not the signers know of any Default by the
Company that occurred during such fiscal quarter or fiscal year. If they do know
of such a Default, the certificate shall describe all such Defaults, their
status and the action the Company is taking or proposes to take with respect
thereto. The first certificate to be delivered by the Company pursuant to this
Section 4.11 shall be for the fiscal quarter ending June 30, 2003.
SECTION 4.12. Provision of Financial Information.
Whether or not required by the rules and regulations of the
Commission, so long as any Notes are outstanding, the Company will furnish to
the Holders of Notes (i) all quarterly and annual financial information that
would be required to be contained in a filing with the Commission on Forms 10-Q
and 10-K if the Company were required to file such Forms, including a
"Management's Discussion and Analysis of Financial Condition and Results of
Operations" that describes the financial condition and results of operations of
the Company and its
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consolidated Subsidiaries and, with respect to the annual information only, a
report thereon by the Company's certified independent accountants, and (ii) all
current reports that would be required to be filed with the Commission on Form
8-K if the Company were required to file such reports, in each case within the
time period specified in the Commission's rules and regulations. In addition,
whether or not required by the rules and regulations of the Commission, the
Company will file a copy of all such information and reports with the Commission
for public availability within the time periods specified in the Commission's
rules and regulations (unless the Commission will not accept such a filing) and
make such information available to securities analysts and prospective investors
upon request. In addition, the Company will, for so long as any Notes remain
outstanding, furnish to the Holders and to securities analysts and prospective
investors, upon their request, the information required to be delivered pursuant
to Rule 144A(d)(4) under the Securities Act.
SECTION 4.13. Waiver of Stay, Extension or Usury Laws.
The Company covenants (to the extent that it may lawfully do so) that
it shall not at any time insist upon, plead, or in any manner whatsoever claim
or take the benefit or advantage of, any stay or extension law or any usury law
or other law, which would prohibit or forgive the Company from paying all or any
portion of the principal of and/or interest on the Securities as contemplated
herein, wherever enacted, now or at any time hereafter in force, or which may
affect the covenants or the performance of this Indenture; and (to the extent
that it may lawfully do so) the Company hereby expressly waives all benefit or
advantage of any such law and covenants that it shall not hinder, delay or
impede the execution of any power herein granted to the Trustee, but shall
suffer and permit the execution of every such power as though no such law had
been enacted.
SECTION 4.14. Change of Control.
Within 30 days following the date of the consummation of a transaction
resulting in a Change of Control, the Company will commence an Offer to Purchase
all outstanding Securities at a purchase price in cash equal to 101% of the
aggregate principal amount, plus accrued and unpaid interest, if any, to the
Purchase Date. Such Offer to Purchase will be consummated not earlier than 30
days and not later than 60 days after the commencement thereof. Each Holder
shall be entitled to tender all or any portion of the Securities owned by such
Holder pursuant to the Offer to Purchase, subject to the requirement that any
portion of a Security tendered must be in an integral multiple of $1,000
aggregate principal amount.
In the event that the Company makes an Offer to Purchase the
Securities, the Company shall comply with any applicable securities laws and
regulations, including any applicable requirements of Section 14(e) of, and Rule
14e-1 under, the Exchange Act. The Company will not be required to make an Offer
to Purchase upon a Change of Control if a third party makes the Offer to
Purchase in the manner, at the times and otherwise in compliance with the
requirements set forth in this Indenture applicable to an Offer to Purchase made
by the Company and purchases all Securities validly tendered and not withdrawn
under such Offer to Purchase.
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SECTION 4.15. Limitation on Restrictions Affecting Restricted Subsidiaries.
The Company shall not, and shall not cause or permit any Restricted
Subsidiary to, directly or indirectly, create or otherwise cause or suffer to
exist any consensual encumbrance or restriction of any kind on the ability of
any Restricted Subsidiary to (i) pay, directly or indirectly, dividends, in cash
or otherwise, or make any other distributions in respect of its Capital Stock or
pay any Indebtedness or other obligation owed to the Company or any other
Restricted Subsidiary, (ii) make any Investment in the Company or any other
Restricted Subsidiary or (iii) transfer any of its property or assets to the
Company or any other Restricted Subsidiary, except for such encumbrances or
restrictions existing under or by reason of (a) any agreement in effect on the
Issue Date as any such agreement is in effect on the Issue Date, (b) any Senior
Credit Facilities,(c) any Vendor Credit Arrangement so long as the encumbrance
or restriction is applicable only to the property or assets that are the subject
of such Vendor Credit Arrangement, (d) any agreement relating to any
Indebtedness Incurred by such Restricted Subsidiary prior to the date on which
such Restricted Subsidiary was acquired by the Company and outstanding on such
date and not Incurred in anticipation or contemplation of becoming a Restricted
Subsidiary; provided, however, that such encumbrance or restriction shall not
apply to any property or assets of the Company or any Restricted Subsidiary
other than such Restricted Subsidiary, (e) customary provisions contained in an
agreement which has been entered into for the sale or disposition of all or
substantially all of the Capital Stock of a Restricted Subsidiary or assets of
any Restricted Subsidiary; provided, however, that such encumbrance or
restriction is applicable only to such Restricted Subsidiary or the property and
assets that are the subject of such agreement, (f) any agreement effecting a
Refinancing or amendment of Indebtedness Incurred pursuant to any agreement
referred to in clause (a) above; provided, however, that the provisions
contained in such Refinancing or amendment agreement relating to such
encumbrance or restriction are no more restrictive in any material respect than
the provisions contained in the agreement that is the subject thereof in the
reasonable judgment of (i) the Board of Triton PCS Holdings, Inc. if, at the
time of such Refinancing or amendment, the Company is a Subsidiary of Triton PCS
Holdings, Inc. or (ii) the Board of the Company if, at the time of such
Refinancing or amendment, the Company is not a Subsidiary of Triton PCS
Holdings, Inc., (g) this Indenture, (h) applicable law or any applicable rule,
regulation or order, (i) customary provisions restricting the assignment of
contracts or restricting subletting or assignment of any lease governing any
leasehold interest of any Restricted Subsidiary, (j) purchase money obligations
for property acquired in the ordinary course of business that impose
restrictions of the type referred to in clause (iii) of this Section 4.15; (k)
restrictions of the type referred to in clause (iii) of this Section 4.15
contained in security agreements securing Indebtedness of a Restricted
Subsidiary to the extent that such Liens were otherwise incurred in accordance
with Section 4.16 and restrict the transfer of property subject to such
agreements; or (l) customary provisions in joint venture agreements and other
similar agreements entered into in the ordinary course of business.
SECTION 4.16. Limitation on Liens.
The Company shall not, and shall not cause or permit any Restricted
Subsidiary to directly or indirectly, create, cause, incur or suffer to exist
any Lien on or with respect to any Capital Stock or any property or assets of
the Company or Restricted Subsidiaries, in each case,
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created or acquired to secure any Indebtedness, without making, or causing such
Restricted Subsidiary to make, effective provision for securing the Securities
and all other amounts due under this Indenture equally and ratably with such
Indebtedness or, in the event such Indebtedness is Subordinated Indebtedness,
prior to such Indebtedness, as to such property or assets for so long as such
Indebtedness shall be so secured.
The foregoing restrictions shall not apply to (i) Liens existing on
the Issue Date securing Indebtedness existing on the Issue Date; (ii) Liens
securing Indebtedness under any Senior Credit Facilities and any guarantees
thereof to the extent that the Indebtedness secured thereby is permitted to be
incurred under Section 4.04; (iii) Liens securing only the Securities and the
Guarantees, if any; (iv) Liens in favor of the Company or any Guarantor; (v)
Liens to secure Indebtedness Incurred in connection with Vendor Credit
Arrangements; (vi) Liens on property existing immediately prior to the time of
acquisition thereof (and not created in connection with or in anticipation or
contemplation of the financing of such acquisition); (vii) Liens on property of
a Person existing at the time such Person is acquired or merged with or into or
consolidated with the Company or any such Restricted Subsidiary (and not created
in connection with or in anticipation or contemplation thereof); (viii) Liens to
secure the performance of statutory obligations, surety or appeal bonds or bid
or performance bonds, or landlords', carriers', warehousemen's, mechanics',
suppliers', materialmen's or other similar Liens, in any case incurred in the
ordinary course of business and with respect to amounts not yet delinquent or
being contested in good faith by appropriate process of law, if a reserve or
other appropriate provision, if any, as is required by GAAP shall have been made
therefor; (ix) Liens for taxes, assessments or governmental charges or claims
that are not yet delinquent or that are being contested in good faith by
appropriate proceedings promptly instituted and diligently concluded, provided,
however, that any reserve or other appropriate provision that shall be required
in conformity with GAAP shall have been made therefor; (x) Liens to secure
Indebtedness Incurred to Refinance, in whole or in part, any Indebtedness
secured by Liens referred to in the foregoing clauses (i)-(ix) so long as such
Liens do not extend to any additional category of property and the principal
amount of Indebtedness so secured is not increased except for the amount of any
premium required to be paid in connection with such Refinancing pursuant to the
terms of the Indebtedness Refinanced or the amount of any premium reasonably
determined by the Company as necessary to accomplish such Refinancing by means
of a tender offer, exchange offer or privately negotiated repurchase, plus the
expenses of the issuer of such Indebtedness reasonably incurred in connection
with such Refinancing; (xi) Liens in favor of the Trustee as provided for in
this Indenture on money or property held or collected by the Trustee in its
capacity as Trustee; (xii) 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 the Company or any Restricted Subsidiary or to the ownership of its
properties 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 the Company or such Restricted Subsidiary; (xiii) judgment liens so
long as such Lien is adequately bonded; (xiv) Liens arising solely by virtue of
any statutory or common law provisions relating to banker's liens, rights of
set-off or similar rights and remedies as to deposit accounts or other funds
maintained with a depositary institution; (xv) Liens securing obligations under
interest rate agreements permitted pursuant to Section 4.04 hereof; and
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(xvi) other Liens securing Indebtedness permitted to be Incurred under the
Indenture in an aggregate principal amount not to exceed $25.0 million.
SECTION 4.17. Subsidiary Guarantees.
The Company shall not permit any Subsidiary to become a direct or
indirect obligor under, or in respect of, any Indebtedness (other than
Indebtedness set forth under clauses (viii) and (x) of Section 4.04 hereof)
without causing such Subsidiary to become a Guarantor. Any such Subsidiary shall
(a) execute and deliver a supplemental indenture in form reasonably satisfactory
to the Trustee pursuant to which such Subsidiary shall unconditionally guarantee
all of the Company's obligations under the Securities and this Indenture on the
terms set forth in Article Ten and (b) deliver to the Trustee an Opinion of
Counsel that such supplemental indenture has been duly authorized, executed and
delivered by such Subsidiary and constitutes a valid and legally binding and
enforceable obligation of such Subsidiary (subject, in the case of
enforceability, to customary bankruptcy, insolvency, fraudulent conveyance and
similar exceptions).
Any Subsidiary of the Company that ceases to be a direct or indirect
obligor (including as guarantor) under, or in respect of all Senior Credit
Facilities shall be released from its Guarantee upon delivery of an Officers'
Certificate to the Trustee certifying to such effect.
The Company may, at its option, cause any of its Subsidiaries to be a
Guarantor.
SECTION 4.18. Limitation on Activities of the Company and the Restricted
Subsidiaries.
The Company shall not, and shall not permit any Restricted Subsidiary
to, engage in any business other than a Permitted Business, except to such
extent as is not material to the Company and its Restricted Subsidiaries, taken
as a whole.
SECTION 4.19. Limitation on Designations of Unrestricted Subsidiaries.
The Company may designate any Subsidiary of the Company (other than
the License Subsidiary, the Real Property Subsidiary and the Equipment
Subsidiary) as an "Unrestricted Subsidiary" under this Indenture (a
"Designation") only if:
(i) no Default or Event of Default shall have occurred and be
continuing at the time of or after giving effect to such Designation; and
(ii) the Company would be permitted under this Indenture to make an
Investment at the time of Designation (assuming the effectiveness of such
Designation) in an amount (the "Designation Amount") equal to the Fair
Market Value of the aggregate amount of its Investments in such Subsidiary
on such date; and
(iii) except in the case of a Subsidiary in which an Investment is
being made pursuant to and as permitted by Section 4.06(b), the Company
would be permitted to in-
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cur $1.00 of additional Indebtedness pursuant to clause (i) of Section 4.04
at the time of Designation (assuming the effectiveness of such
Designation).
In the event of any such Designation, the Company shall be deemed to
have made an Investment constituting a Restricted Payment pursuant to Section
4.06 for all purposes of this Indenture in the Designation Amount.
The Company shall not, and shall not permit any Restricted Subsidiary
to, at any time (x) provide direct or indirect credit support for or a guarantee
of any Indebtedness of any Unrestricted Subsidiary (including of any
undertaking, agreement or instrument evidencing such Indebtedness), (y) be
directly or indirectly liable for any Indebtedness of any Unrestricted
Subsidiary or (z) be directly or indirectly liable for any Indebtedness which
provides that the holder thereof may (upon notice, lapse of time or both)
declare a default thereon or cause the payment thereof to be accelerated or
payable prior to its final scheduled maturity upon the occurrence of a default
with respect to any Indebtedness of any Unrestricted Subsidiary (including any
right to take enforcement action against such Unrestricted Subsidiary), except,
in the case of clause (x) or (y), to the extent permitted under Section 4.06.
The Company may revoke any Designation of a Subsidiary as an
Unrestricted Subsidiary (a "Revocation"), whereupon such Subsidiary shall then
constitute a Restricted Subsidiary, if:
(a) no Default shall have occurred and be continuing at the time of
and after giving effect to such Revocation; and
(b) all Liens and Indebtedness of such Unrestricted Subsidiary
outstanding immediately following such Revocation would, if incurred at
such time, have been permitted to be incurred for all purposes of this
Indenture.
All Designations and Revocations must be evidenced by resolutions of
the Board of the Company delivered to the Trustee certifying compliance with the
foregoing provisions.
ARTICLE FIVE
MERGERS; SUCCESSOR CORPORATION
SECTION 5.01. Restriction on Mergers, Consolidations and Certain Sales of
Assets.
The Company will not consolidate or merge with or into any Person, or
sell, assign, lease, convey or otherwise dispose of all or substantially all of
the Company's assets (determined on a consolidated basis for the Company and the
Restricted Subsidiaries), whether as an entirety or substantially an entirety in
one transaction or a series of related transactions, including by way of
liquidation or dissolution, to any Person unless, in each such case: (i) the
entity formed by or surviving any such consolidation or merger (if other than
the Company), or to which such sale, assignment, lease, conveyance or other
disposition shall have been made (the "Surviving Entity"), is a corporation
organized and existing under the laws of the United States,
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any state thereof or the District of Columbia; (ii) the Surviving Entity assumes
by supplemental indenture all of the obligations of the Company on the
Securities and under this Indenture; (iii) immediately after giving effect to
such transaction and the use of any net proceeds therefrom on a basis, the
Company or the Surviving Entity, as the case may be, could Incur at least $1.00
of additional Indebtedness pursuant to Section 4.04(i); (iv) immediately after
giving effect to such transaction and treating any Indebtedness that becomes an
obligation of the Company or any Restricted Subsidiary as a result of such
transaction as having been Incurred by the Company or such Restricted
Subsidiary, as the case may be, at the time of the transaction, no Default or
Event of Default shall have occurred and be continuing; and (v) if, as a result
of any such transaction, property or assets of the Company or a Restricted
Subsidiary would become subject to a Lien not excepted from restrictions on
Liens set forth in Section 4.16, the Company, the Restricted Subsidiary or the
Surviving Entity, as the case may be, shall have secured the Securities as
required by Section 4.16. The provisions of this Section 5.01 shall not apply to
any merger of a Restricted Subsidiary with or into the Company or a Wholly Owned
Subsidiary or the release of any Guarantor in accordance with the terms of its
Guarantee and this Indenture in connection with any transaction complying with
Section 4.05.
SECTION 5.02. Successor Corporation Substituted.
Upon the execution of a supplemental indenture by the Surviving Person
in form and substance satisfactory to the Trustee (as evidenced by the Trustee's
execution thereof) in accordance with Section 5.01, the Surviving Person shall
succeed to, and be substituted for, and may exercise every right and power of
and shall assume all obligations of, the Company under this Indenture, the
Registration Rights Agreement and the Securities or the Guarantees, as the case
may be, with the same effect as if such Surviving Person had been named as the
Company herein and therein, and thereafter, except in the case of a lease, the
predecessor Person shall be relieved of all obligations and covenants under this
Indenture, the Registration Rights Agreement and the Securities or the
Guarantees, as the case may be.
ARTICLE SIX
DEFAULT AND REMEDIES
SECTION 6.01. Events of Default.
An "Event of Default" occurs if:
(a) the Company fails to pay principal of (or premium, if any, on) any
Security when due;
(b) the Company fails to pay any interest on any Security when due,
continued for 30 days;
(c) the Company defaults in the payment of principal of and interest
on Securities required to be purchased pursuant to an Offer to Purchase
under Sections 4.05 or 4.14 hereof when due and payable;
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(d) the Company fails to perform or comply with any of the provisions
of Article Five;
(e) the Company fails to perform any other covenant or agreement of
the Company under this Indenture or the Securities continued for 60 days
after written notice to the Company by the Trustee or Holders of at least
25% in aggregate principal amount of outstanding Securities;
(f) the Company defaults under the terms of one or more instruments
evidencing or securing Indebtedness of the Company or any of its
Subsidiaries having an outstanding principal amount of $25.0 million or
more individually or in the aggregate that has resulted in the acceleration
of the payment of such Indebtedness or failure to pay principal when due at
the stated final maturity of any such Indebtedness;
(g) the rendering of a final judgment or judgments (not subject to
appeal) against the Company or any Restricted Subsidiary in an amount of
$25.0 million or more which remains undischarged or unstayed for a period
of 60 days after the date on which the right to appeal has expired;
(h) the Company or any Material Subsidiary pursuant to or within the
meaning of any Bankruptcy Law:
(1) commences a voluntary case or proceeding,
(2) consents to the entry of an order for relief against it in an
involuntary case or proceeding,
(3) consents to the appointment of a Custodian of it or for all
or substantially all of its property, or
(4) makes a general assignment for the benefit of its creditors;
(i) a court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that:
(1) is for relief against the Company or any Material Subsidiary
in an involuntary case or proceeding,
(2) appoints a Custodian of the Company or any Material
Subsidiary or for all or substantially all of its property, or
(3) orders the liquidation of the Company or any Material
Subsidiary,
and in each case the order or decree remains unstayed and in effect for 60 days;
provided, however, that if the entry of such order or decree is appealed and
dismissed on appeal then the Event of Default hereunder by reason of the entry
of such order or decree shall be deemed to have been cured; or
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(j) any Guarantee of a Material Subsidiary ceases to be in full force
and effect or is declared null and void and unenforceable or is found to be
invalid or any Guarantor denies its liability under its Guarantee (other
than by reason of a release of such Guarantor from its Guarantee in
accordance with the terms of this Indenture and such Guarantee).
The term "Bankruptcy Law" means Title 11, U.S. Code or any similar
Federal, state or foreign law for the relief of debtors. The term "Custodian"
means any receiver, trustee, assignee, liquidator, sequestrator or similar
official under any Bankruptcy Law.
SECTION 6.02. Acceleration.
If an Event of Default (other than an Event of Default with respect to
the Company specified in Section 6.01(h) or (i)) shall occur and be continuing,
either the Trustee or the Holders of at least 25% in aggregate principal amount
of the outstanding Securities by notice in writing to the Company (and to the
Trustee, if given by the Holders) may accelerate the maturity of all Securities;
provided, however, that after such acceleration, but before a judgment or decree
based on acceleration, the Holders of a majority in aggregate principal amount
of outstanding Securities may rescind and annul such acceleration if all
Defaults, other than the non-payment of accelerated principal, have been cured
or waived as provided in this Indenture. If an Event of Default specified in
Section 6.01(h) or (i) occurs, the outstanding Securities will ipso facto become
immediately due and payable without any declaration or other act on the part of
the Trustee or any Holder.
SECTION 6.03. Other Remedies.
If an Event of Default occurs and is continuing, the Trustee may
pursue any available remedy by proceeding at law or in equity to collect the
payment of principal of or interest on the Securities or to enforce the
performance of any provision of the Securities or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any
of the Securities or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Securityholder in exercising any right or remedy
maturing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. No remedy is
exclusive of any other remedy. All available remedies are cumulative to the
extent permitted by law.
SECTION 6.04. Waiver of Past Default.
Subject to Sections 2.09, 6.07 and 9.02, prior to the declaration of
acceleration of the Securities, (i) the Holders of not less than a majority in
aggregate principal amount of the outstanding Securities by written notice to
the Trustee may waive an existing Default and its consequences, except a Default
in the payment of principal of and interest on any Security as specified in
Section 6.01(a) or (b), (ii) a default arising from failure to effect an Offer
to Purchase required under Section 4.05 or 4.14 or (iii) a Default in respect of
any term or provision of this Indenture that may not be amended or modified
without the consent of each Holder affected
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as provided in Section 9.02. The Company shall deliver to the Trustee an
Officers' Certificate stating that the requisite percentage of Holders have
consented to such waiver and attaching copies of such consents. In case of any
such waiver, the Company, the Trustee and the Holders shall be restored to their
former positions and rights hereunder and under the Securities, respectively.
This paragraph of this Section 6.04 shall be in lieu of (S) 316(a)(1)(B) of the
TIA and such (S) 316(a)(1)(B) of the TIA is hereby expressly excluded from this
Indenture and the Securities, as permitted by the TIA.
Upon any such waiver, such Default shall cease to exist and be deemed
to have been cured and not to have occurred, and any Event of Default arising
therefrom shall be deemed to have been cured and not to have occurred for every
purpose of this Indenture and the Securities, but no such waiver shall extend to
any subsequent or other Default or impair any right consequent thereon.
SECTION 6.05. Control by Majority.
Subject to Section 2.09, the Holders of a majority in principal amount
of the outstanding Securities may direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee or exercising
any trust or power conferred on it. However, the Trustee may refuse to follow
any direction that conflicts with law or this Indenture, that the Trustee
determines may be unduly prejudicial to the rights of another Securityholder, or
that may involve the Trustee in personal liability; provided, however, that the
Trustee may take any other action deemed proper by the Trustee which is not
inconsistent with such direction. In the event the Trustee takes any action or
follows any direction pursuant to this Indenture, the Trustee shall be entitled
to indemnification satisfactory to it in its sole discretion against any loss or
expense caused by taking such action or following such direction. This Section
6.05 shall be in lieu of (S) 316(a)(1)(A) of the TIA, and such (S) 316(a)(1)(A)
of the TIA is hereby expressly excluded from this Indenture and the Securities,
as permitted by the TIA.
SECTION 6.06. Limitation on Suits.
A Securityholder may not pursue any remedy with respect to this
Indenture or the Securities unless:
(1) the Holder gives to the Trustee written notice of a continuing
Event of Default;
(2) the Holders of at least 25% in aggregate principal amount of the
outstanding Securities make a written request to the Trustee to pursue a
remedy;
(3) such Holder or Holders offer and, if requested, provide to the
Trustee indemnity satisfactory to the Trustee against any loss, liability
or expense;
(4) the Trustee does not comply with the request within 60 days after
receipt of the request and the offer and, if requested, the provision of
indemnity; and
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(5) during such 60-day period the Holders of a majority in aggregate
principal amount of the outstanding Securities (excluding Affiliates of the
Company) do not give the Trustee a direction which, in the opinion of the
Trustee, is inconsistent with the request.
A Securityholder may not use this Indenture to prejudice the rights of
another Securityholder or to obtain a preference or priority over such other
Securityholder.
Limitations do not apply to a suit instituted by a Holder of a Note
for enforcement of payment of the principal of and premium, if any, or of
interest on such Security on or after the respective due dates therefor.
SECTION 6.07. Rights of Holders to Receive Payment.
Notwithstanding any other provision of this Indenture, the right of
any Holder to receive payment of principal of and premium, if any, and interest
on the Securities, on or after the respective due dates therefor, or to bring
suit for the enforcement of any such payment on or after such respective dates,
shall not be impaired or affected without the consent of such Holder.
SECTION 6.08. Collection Suit by Trustee.
If an Event of Default in payment of interest or principal specified
in Section 6.01(a) or (b) occurs and is continuing, the Trustee may recover
judgment in its own name and as trustee of an express trust against the Company
or any other obligor on the Securities for the whole amount of principal of and
premium, if any, and accrued interest remaining unpaid, together with interest
overdue on principal and to the extent that payment of such interest is lawful,
interest on overdue installments of interest, in each case at the rate per annum
borne by the Securities and such further amount as shall be sufficient to cover
the costs and expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel.
SECTION 6.09. Trustee May File Proofs of Claim.
The Trustee may file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and the
Securityholders allowed in any judicial proceedings relative to the Company (or
any other obligor upon the Securities), its creditors or its property and shall
be entitled and empowered to collect and receive any monies or other property
payable or deliverable on any such claims and to distribute the same, and any
Custodian in any such judicial proceedings is hereby authorized by each
Securityholder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the
Securityholders, to pay to the Trustee any amount due to it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agent and
counsel, and any other amounts due the Trustee under Section 7.07. Nothing
herein contained shall be deemed to authorize the Trustee to authorize or
consent to or accept or adopt on behalf of any Securityholder any plan of
reorganization, ar-
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rangement, adjustment or composition affecting the Securities or the rights of
any Holder thereof, or to authorize the Trustee to vote in respect of the claim
of any Securityholder in any such proceeding.
SECTION 6.10. Priorities.
If the Trustee collects any money or property pursuant to this Article
Six, it shall pay out the money or property in the following order:
First: to the Trustee for amounts due under Section 7.07;
Second: to Holders for amounts due and unpaid on the Securities for
principal and interest, ratably, without preference or priority of any
kind, according to the amounts due and payable on the Securities for
principal, premium, if any, and interest, respectively; and
Third: to the Company.
The Trustee, upon prior written notice to the Company, may fix a
record date and payment date for any payment to Securityholders pursuant to this
Section 6.10.
SECTION 6.11. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted by
it as Trustee, a court in its discretion may require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys' fees and expenses, against any party litigant in the suit, having due
regard to the merits and good faith of the claims or defenses made by the party
litigant. This Section 6.11 shall not apply to a suit by the Trustee, a suit by
a Holder or group of Holders of more than 10% in aggregate principal amount of
the outstanding Securities, or to any suit instituted by any Holder for the
enforcement or the payment of the principal, premium, if any, or interest on any
Securities on or after the respective due dates therefor.
ARTICLE SEVEN
TRUSTEE
SECTION 7.01. Duties of Trustee.
(a) If a Default has occurred and is continuing, the Trustee shall
exercise such of the rights and powers vested in it by this Indenture and use
the same degree of care and skill in their exercise as a prudent person would
exercise or use under the circumstances in the conduct of such person's own
affairs.
(b) Except during the continuance of a Default:
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(1) The Trustee undertakes to perform such duties and only such duties
as are specifically set forth in this Indenture, and no implied covenants
or obligations shall be read into this Indenture against the Trustee; and
(2) In the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions conforming to
the requirements of this Indenture; provided, however, the Trustee shall
examine the certificates and opinions to determine whether or not they
conform to the requirements of this Indenture (but need not confirm or
investigate the accuracy of mathematical calculations or other facts stated
therein).
(c) The Trustee shall not be relieved from liability for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(1) This paragraph does not limit the effect of paragraph (b) of this
Section 7.01;
(2) The Trustee shall not be liable for any error of judgment made in
good faith by a Trust Officer, unless it is proved that the Trustee was
negligent in ascertaining the pertinent facts; and
(3) The Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.05.
(d) No provision of this Indenture shall require the Trustee to expend
or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder or to take or omit to take any action
under this Indenture or take any action at the request or direction of Holders
if it shall have reasonable grounds for believing that repayment of such funds
is not assured to it or it does not receive an indemnity satisfactory to it in
its sole discretion against such risk, liability, loss, fee or expense which
might be incurred by it in compliance with such request or direction.
(e) Every provision of this Indenture that in any way relates to the
Trustee is subject to paragraphs (a), (b), (c) and (d) of this Section 7.01.
(f) The Trustee shall not be liable for interest on any money or
assets received by it except as the Trustee may agree in writing with the
Company. Money or assets held in trust by the Trustee need not be segregated
from other funds or assets except to the extent required by law.
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SECTION 7.02. Rights of Trustee.
Subject to Section 7.01:
(a) The Trustee may conclusively rely and shall be protected in acting
or refraining from acting on any document believed by it to be genuine and
to have been signed or presented by the proper Person. The Trustee need not
investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may consult
with counsel of its selection and may require an Officers' Certificate and
an Opinion of Counsel, which shall conform to the provisions of Section
11.05. The Trustee shall not be liable for any action it takes, suffers or
omits to take in good faith in reliance on such certificate or opinion.
(c) The Trustee may act through attorneys and agents of its selection
and shall not be responsible for the misconduct or negligence of any agent
or attorney (other than an agent who is an employee of the Trustee)
appointed with due care.
(d) The Trustee shall not be liable for any action it takes or omits
to take in good faith which it reasonably believes to be authorized or
within its rights or powers conferred upon it by this Indenture.
(e) The Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction
of any of the Securityholders pursuant to this Indenture, unless such
Securityholders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction.
(f) Provided the Trustee acts in good faith, the Trustee shall not be
bound to make any investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note, other evidence
of indebtedness or other paper or document, but the Trustee, in its
discretion, may make such further inquiry or investigation into such facts
or matters as it may see fit, and, if the Trustee shall determine to make
such further inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Company, personally or by agent or
attorney at the sole cost of the Company and shall incur no liability or
additional liability of any kind by reason of such inquiry or
investigation.
(g) The Trustee shall not be deemed to have notice of any Default
unless a Trust Officer of the Trustee has actual knowledge thereof or
unless written notice of any event which is in fact such a default is
received by the Trustee at the Corporate Trust Office of the Trustee, and
such notice references the Securities and this Indenture.
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(h) The rights, privileges, protections, immunities and benefits given
to the Trustee, including, without limitation, its right to be indemnified,
are extended to, and shall be enforceable by, the Trustee in each of its
capacities hereunder, and to each agent, custodian and other Person
employed to act hereunder; and
(i) The Trustee may request that the Company deliver an Officers'
Certificate setting forth the names of individuals and/or titles of
officers authorized at such time to take specified actions pursuant to this
Indenture, which Officers' Certificate may be signed by any person
authorized to sign an Officers' Certificate, including any person specified
as so authorized in any such certificate previously delivered and not
superseded.
SECTION 7.03. Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become the
owner or pledgee of Securities and may otherwise deal with the Company or its
Affiliates with the same rights it would have if it were not Trustee. Any Agent
may do the same with like rights. However, the Trustee is subject to Sections
7.10 and 7.11.
SECTION 7.04. Trustee's Disclaimer.
The Trustee shall not be responsible for and makes no representation
as to the validity or adequacy of this Indenture or the Securities, it shall not
be accountable for the Company's use of the proceeds from the Securities, and it
shall not be responsible for any statement of the Company in this Indenture or
any document issued in connection with the sale of Securities or any statement
in the Securities other than the Trustee's certificate of authentication.
SECTION 7.05. Notice of Defaults.
The Trustee shall, within 90 days after the occurrence of any Default
or Event of Default with respect to the Securities, give the Holders notice of
all uncured Defaults or Events of Default known to it; provided, however, that,
except in the case of an Event of Default or a Default in any payment with
respect to the Securities or a Default or Event of Default in complying with
Section 5.01, the Trustee shall be protected in withholding such notice if and
so long as the Board, the executive committee or a trust committee or
responsible officers of the Trustee in good faith determine that the withholding
of such notice is in the interest of the Holders.
SECTION 7.06. Reports by Trustee to Holders.
If required by TIA (S) 313(a), within 60 days after each May 15
beginning with the May 15 following the date of this Indenture, the Trustee
shall mail to each Securityholder a report dated as of such May 15 that complies
with TIA (S) 313(a). The Trustee also shall comply with TIA (S) 313(b), (c) and
(d).
A copy of each such report at the time of its mailing to
Securityholders shall be filed with the Commission, the Company and each stock
exchange, if any, on which the Securities are listed in accordance with TIA (S)
313(d).
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The Company shall promptly notify the Trustee in writing if the
Securities become listed on any securities exchange or of any delisting
therefrom.
SECTION 7.07. Compensation and Indemnity.
The Company shall pay to the Trustee from time to time such
compensation as the Company and the Trustee shall from time to time agree in
writing for its services. The Trustee's compensation shall not be limited by any
law on compensation of a trustee of an express trust. The Company shall
reimburse the Trustee upon request for all reasonable disbursements, expenses
and advances (including reasonable fees, disbursements and expenses of its
agents and counsel) incurred or made by it in addition to the compensation for
its services except any such disbursements, expenses and advances as may be
attributable to the Trustee's negligence or bad faith. Such expenses shall
include the reasonable compensation, disbursements and expenses of the Trustee's
agents, accountants, experts and counsel and any taxes or other expenses
incurred by a trust created pursuant to Section 8.01 hereof.
The Company shall indemnify the Trustee or any predecessor Trustee and
their agents for, and hold them harmless against any and all loss, damage,
claims, liability or expense, including taxes (other than franchise taxes
imposed on the Trustee and taxes based upon, measured by or determined by the
income of the Trustee), arising out of or in connection with the acceptance or
administration of the trust or trusts hereunder, including the costs and
expenses of enforcing this Indenture against the Company (including this Section
7.07) and of defending itself against any claim (whether asserted by any
Securityholder or the Company or any other Person) or liability in connection
with the exercise or performance of any of their powers or duties hereunder,
except to the extent that such loss, damage, claim, liability or expense is due
to their own willful misconduct, negligence or bad faith. The Trustee shall
notify the Company promptly of any claim asserted against the Trustee for which
it may seek indemnity. However, the failure by the Trustee to so notify the
Company shall not relieve the Company of its obligations hereunder (unless and
only to the extent that such failure results in the loss or compromise of any
rights or defenses). The Company shall defend the claim and the Trustee shall
cooperate in the defense (and may employ its own counsel) at the Company's
expense; provided, however, that the Company's reimbursement obligation with
respect to counsel employed by the Trustee will be limited to the reasonable
fees and expenses of such counsel. The Company need not pay for any settlement
made without its written consent, which consent shall not be unreasonably
withheld.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.01(h) or (i) occurs, the expenses (including the
reasonable fees and expenses of its agents and counsel) and the compensation for
the services shall be preferred over the status of the Holders in a proceeding
under any Bankruptcy Law and are intended to constitute expenses of
administration under any Bankruptcy Law. The Company's obligations under this
Section 7.07 and any claim arising hereunder shall survive the resignation or
removal of any Trustee, the discharge of the Company's obligations pursuant to
Article Eight and any rejection or termination under any Bankruptcy Law.
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The Trustee shall have a lien prior to the Securities as to all
property and funds held by it hereunder for any amount owing it or any
predecessor Trustee pursuant to this Section 7.07, except with respect to funds
held in trust for the benefit of the Holders of particular Securities.
The provisions of this Section 7.07 shall survive the termination of
this Indenture.
SECTION 7.08. Replacement of Trustee.
The Trustee may resign at any time by so notifying the Company in
writing. The Holders of a majority in aggregate principal amount of the
outstanding Securities may remove the Trustee by so notifying the Trustee and
the Company in writing and may appoint a successor Trustee with the Company's
consent. The Company may remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged a bankrupt or an insolvent under any
Bankruptcy Law;
(3) a custodian or other public officer takes charge of the Trustee or
its property; or
(4) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason (the Trustee in such event being referred to
herein as the retiring Trustee), the Company shall promptly appoint a successor
Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. As promptly as
practicable after that, the retiring Trustee shall transfer, after payment of
all sums then owing to the Trustee pursuant to Section 7.07, all property held
by it as Trustee to the successor Trustee, subject to the Lien provided in
Section 7.07, the resignation or removal of the retiring Trustee shall become
effective, and the successor Trustee shall have the rights, powers and duties of
the Trustee under this Indenture. A successor Trustee shall mail notice of its
succession to each Securityholder.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company or the
Holders of at least 10% in aggregate principal amount of the outstanding
Securities may petition any court of competent jurisdiction for the appointment
of a successor Trustee.
If the Trustee fails to comply with Section 7.10, any Securityholder
may petition any court of competent jurisdiction for the removal of the Trustee
and the appointment of a successor Trustee.
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Notwithstanding replacement of the Trustee pursuant to this Section
7.08, the Company's obligations under Section 7.07 shall continue for the
benefit of the retiring Trustee.
SECTION 7.09. Successor Trustee by Merger, etc.
If the Trustee consolidates with, merges or converts into, or
transfers all or substantially all of its corporate trust business to, another
corporation or banking corporation, the resulting, surviving or transferee
corporation or banking corporation without any further act shall be the
successor Trustee.
SECTION 7.10. Eligibility; Disqualification.
This Indenture shall always have a Trustee which shall be eligible to
act as Trustee under TIA (S)(S) 310(a)(1) and 310(a)(5). The Trustee (or in the
case of a corporation included in a bank holding company, the related bank
holding company) shall have a combined capital and surplus of at least $50.0
million as set forth in its most recent published annual report of condition. If
the Trustee has or shall acquire any "conflicting interest" within the meaning
of TIA (S) 310(b), the Trustee and the Company shall comply with the provisions
of TIA (S) 310(b); provided, however, that there shall be excluded from the
operation of TIA (S) 310(b)(1) any indenture or indentures under which other
securities, or certificates of interest or participation in other securities, of
the Company are outstanding, if the requirements for such exclusion set forth in
TIA (S) 310(b)(1) are met. If at any time the Trustee shall cease to be eligible
in accordance with the provisions of this Section, the Trustee shall resign
immediately in the manner and with the effect hereinbefore specified in this
Article Seven.
SECTION 7.11. Preferential Collection of Claims Against Company.
The Trustee shall comply with TIA (S) 311(a), excluding any creditor
relationship listed in TIA (S) 311(b). A Trustee who has resigned or been
removed shall be subject to TIA (S) 311(a) to the extent indicated therein.
ARTICLE EIGHT
DISCHARGE OF INDENTURE
SECTION 8.01. Termination of Company's Obligations.
(a) Discharge. The Company may terminate its substantive obligations
and the substantive obligations of the Guarantors, if any, in respect of the
Securities and the Guarantees by delivering all outstanding Securities to the
Trustee for cancellation and paying all sums payable by the Company on account
of principal of, premium, if any, and interest on all Securities or otherwise.
(b) Covenant Defeasance. In addition to the provisions of Section
8.01(a), the Company may, provided that no Default or Event of Default has
occurred and is continuing or would arise therefrom (or, with respect to a
Default or Event of Default specified in Section
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6.01(h) or (i), any time on or prior to the 91st calendar day after the date of
such deposit (it being understood that this condition shall not be deemed
satisfied until after such 91st day)), terminate its substantive obligations and
the substantive obligations of the Guarantors, if any, in respect of the
Securities and the Guarantees (except for the Company's obligation to pay the
principal of (and premium, if any, on) and the interest on the Securities and
such Guarantors' guarantee thereof) by (i) depositing with the Trustee, under
the terms of an irrevocable trust agreement, money or direct non-callable
obligations of the United States of America for the payment of which its full
faith and credit is pledged ("United States Government Obligations") sufficient
(without reinvestment) to pay all remaining indebtedness on the Securities to
maturity or to redemption, (ii) delivering to the Trustee either an Opinion of
Counsel or a ruling directed to the Trustee from the Internal Revenue Service to
the effect that the Holders will not recognize income, gain or loss for federal
income tax purposes as a result of such deposit and termination of obligations,
(iii) delivering to the Trustee an Opinion of Counsel to the effect that the
Company's exercise of its option under this paragraph will not result in the
Company, the Trustee or the trust created by the Company's deposit of funds
pursuant to this provision becoming or being deemed to be an "investment
company" under the Investment Company Act of 1940, as amended, and (iv)
delivering to the Trustee an Officers' Certificate and an Opinion of Counsel
each stating that there has been compliance with all conditions precedent
provided for herein.
(c) Legal Defeasance. In addition to the provisions of Section 8.01(a)
and (b), the Company may, provided that no Default or Event of Default has
occurred and is continuing or would arise therefrom (or, with respect to a
Default specified in Section 6.01(h) or (i), any time on or prior to the 91st
calendar day after the date of such deposit (it being understood that this
condition shall not be deemed satisfied until after such 91st day)), terminate
all of its substantive obligations and all of the substantive obligations of the
Guarantors in respect of the Securities and the Guarantees (including the
Company's obligation to pay the principal of (and premium, if any, on) and
interest on the Securities and such Guarantors' guarantee thereof) by (i)
depositing with the Trustee, under the terms of an irrevocable trust agreement,
money or United States Government Obligations sufficient (without reinvestment)
to pay all remaining indebtedness on the Securities to maturity or to
redemption, (ii) delivering to the Trustee either a ruling directed to the
Trustee from the Internal Revenue Service to the effect that the Holders will
not recognize income, gain or loss for federal income tax purposes as a result
of such deposit and termination of obligations or an Opinion of Counsel based
upon such a ruling addressed to the Trustee or a change in the applicable
Federal tax law since the date of this Indenture, to such effect, (iii)
delivering to the Trustee an Opinion of Counsel to the effect that the Company's
exercise of its option under this paragraph will not result in the Company, the
Trustee or the trust created by the Company's deposit of funds pursuant to this
provision becoming or being deemed to be an "investment company" under the
Investment Company Act of 1940, as amended, and (iv) delivering to the Trustee
an Officers' Certificate and an Opinion of Counsel each stating that there has
been compliance with all conditions precedent provided for herein.
(d) Notwithstanding the foregoing paragraphs 8.01(b) and (c) above,
the Company's obligations contained in Sec-
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tions 2.03, 2.05, 2.06, 2.07, 4.02, 7.07, 7.08, 8.03 and 8.04 shall survive
until the Securities are no longer outstanding. In addition, notwithstanding the
foregoing paragraph 8.01(b), in that instance the Company's obligations
contained in Section 4.01 shall also survive until the Securities are no longer
outstanding. Thereafter the Company's obligations in Sections 7.07, 8.03 and
8.04 shall survive. After such delivery and delivery of an Officers' Certificate
and Opinion of Counsel, the Trustee upon request of the Company shall
acknowledge in writing the discharge of the Company's and the Guarantors' (if
any) obligations under the Securities, the Guarantees and this Indenture other
than those surviving obligations specified in this paragraph (d).
SECTION 8.02. Application of Trust Money.
The Trustee shall hold in trust money or United States Government
Obligations deposited with it pursuant to Section 8.01, and shall apply the
deposited money and the money from United States Government Obligations in
accordance with this Indenture solely to the payment of principal of and
interest on the Securities. The Company shall indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against the United States
Government Obligations deposited pursuant to Section 8.01 or the principal and
interest received in respect thereof other than any such tax, fee or other
charge which by law is for the account of the Holders of outstanding Securities.
SECTION 8.03. Repayment to Company.
Subject to Sections 7.07 and 8.01, the Trustee shall promptly pay to
the Company upon receipt by the Trustee of the Company's written request
accompanied by an Officers' Certificate any excess money held by it at any time.
The Trustee shall pay to the Company upon such request any money held by it for
the payment of principal (premium, if any) or interest that remains unclaimed
for two years; provided, however, that the Trustee before being required to make
any payment may at the expense of the Company cause to be published once in a
newspaper of general circulation in The City of New York or mail to each Holder
entitled to such money notice that such money remains unclaimed and that, after
a date specified therein which shall be at least 30 days from the date of such
publication or mailing, any unclaimed balance of such money then remaining shall
be repaid to the Company. After payment to the Company, Securityholders entitled
to money must look to the Company for payment as general creditors unless an
applicable abandoned property law designates another Person, and all liability
of the Trustee or Paying Agent with respect to such money shall thereupon cease.
SECTION 8.04. Reinstatement.
If the Trustee is unable to apply any money or United States
Government Obligations in accordance with Section 8.01 by reason of any legal
proceeding or by reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such application, the
Company's and the Guarantors' (if any) obligations under this Indenture and the
Securities shall be revived and reinstated as though no deposit had occurred
pursuant to Section 8.01 until such time as the Trustee is permitted to apply
all such money or United States Government Obligations in accordance with
Section 8.01; provided, however, that if the Company has made any payment of
interest on or principal of any Securities because of the reinstatement of its
obligations, the Company shall be subrogated to the rights of the Holders of
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such Securities to receive such payment from the money or United States
Government Obligations held by the Trustee.
ARTICLE NINE
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.01. Without Consent of Holders.
The Company and the Guarantors, if any, when authorized by a
resolution of their respective Boards, and the Trustee may amend or supplement
this Indenture or the Securities without notice to or consent of any
Securityholder:
(i) to cure any ambiguity, defect or inconsistency; provided, however,
that such amendment or supplement does not adversely affect the rights of
any Holder;
(ii) to effect the assumption by a successor Person of all obligations
of the Company under the Securities and this Indenture in connection with
any transaction complying with Article Five of this Indenture;
(iii) to provide for uncertificated Securities in addition to or in
place of certificated Securities;
(iv) to comply with any requirements of the Commission in order to
effect or maintain the qualification of this Indenture under the TIA;
(v) to make any change that would provide any additional benefit or
rights to the Holders;
(vi) to make any other change that does not materially adversely
affect the rights of any Holder under this Indenture;
(vii) to evidence the succession of another Person to any Guarantor
and the assumption by any such successor of the covenants of such Guarantor
herein and in the Guarantee;
(viii) to add to the covenants of the Company or the Guarantors for
the benefit of the Holders, or to surrender any right or power herein
conferred upon the Company or any Guarantor;
(ix) to secure the Securities pursuant to the requirements of Section
4.16 or otherwise; or
(x) to reflect the release of a Guarantor from its obligations with
respect to its Guarantee in accordance with the provisions of Sections 4.17
or 10.03 and to add a Guarantor pursuant to the requirements of Section
4.17;
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provided, however, that the Company has delivered to the Trustee an Opinion of
Counsel and an Officers' Certificate each stating that such amendment or
supplement complies with the provisions of this Section 9.01.
SECTION 9.02. With Consent of Holders.
The Company, the Guarantors, if any, and the Trustee may amend or
supplement this Indenture or the Securities with the written consent of the
Holders of at least a majority in principal amount of the outstanding
Securities. However, without the consent of each Holder affected, an amendment,
supplement or waiver may not:
(i) change the Stated Maturity of the principal of any Security;
(ii) alter the optional redemption or repurchase provisions of any
Security or this Indenture in a manner adverse to the holders of the
Securities (other than, prior to the consummation of an Asset Disposition
or occurrence of a Change of Control, the provisions of this Indenture
relating to any Offer to Purchase required under Section 4.05 or 4.14);
(iii) reduce the principal amount of any Security;
(iv) reduce the rate of or change the time for payment of interest on
any Security;
(v) change the place or currency of payment of the principal of or
interest on any Security;
(vi) modify any provisions of this Indenture relating to the waiver of
past defaults (other than to add sections of this Indenture subject
thereto) or the right of the Holders to institute suit for the enforcement
of any payment on or with respect to any Security or the Guarantees, or the
modification and amendment of this Indenture and the Securities (other than
to add sections of this Indenture or the Securities which may not be
amended, supplemented or waived without the consent of each Holder
affected);
(vii) reduce the percentage of the principal amount of outstanding
Securities necessary for amendment to or waiver of compliance with any
provision of this Indenture or the Securities or for waiver of any Default;
(viii) waive a default in the payment of principal of, interest on, or
redemption payment with respect to, any Security (except a rescission of
acceleration of the Securities by the Holders as provided in this Indenture
and a waiver of the payment default that resulted from such acceleration);
(ix) modify the ranking or priority of the Securities or the Guarantee
in any manner adverse to the Holders;
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(x) release any Guarantor from any of its obligations under its
Guarantee or this Indenture otherwise than in accordance with this
Indenture; or
(xi) modify any of the provisions (including the definitions relating
thereto) relating to an Offer to Purchase required under Section 4.05 or
4.14 in a manner materially adverse to the Holders of Securities with
respect to Change of Control that has occurred or any Asset Disposition
that has been consummated.
The Holders of a majority in aggregate principal amount of the
outstanding Securities, on behalf of all Holders of Securities, may waive
compliance by the Company with certain restrictive provisions of this Indenture.
Subject to certain rights of the Trustee, as provided in this Indenture, the
Holders of a majority in aggregate principal amount of the outstanding
Securities, on behalf of all Holders of Securities, may waive any past default
under this Indenture, except a default in the payment of principal, premium or
interest or a default arising from failure to purchase any Security tendered
pursuant to an Offer to Purchase required pursuant to Section 4.14, or a default
in respect of a provision that under this Indenture cannot be modified or
amended without the consent of the Holder of each outstanding Security affected.
It shall not be necessary for the consent of the Holders under this
Section 9.02 to approve the particular form of any proposed amendment or waiver,
but it shall be sufficient if such consent approves the substance thereof.
SECTION 9.03. Compliance with Trust Indenture Act.
Every amendment to or supplement of this Indenture or the Securities
shall comply with the TIA as then in effect.
SECTION 9.04. Revocation and Effect of Consents.
Until an amendment or waiver becomes effective, a consent to it by a
Holder is a continuing consent by the Holder and every subsequent Holder of that
Security or portion of that Security that evidences the same debt as the
consenting Holder's Security, even if notation of the consent is not made on any
Security. Subject to the following paragraph, any such Holder or subsequent
Holder may revoke the consent as to such Holder's Security or portion of such
Security by written notice to the Trustee or the Company received before the
date on which the Trustee receives an Officers' Certificate certifying that the
Holders of the requisite principal amount of Securities have consented (and not
theretofore revoked such consent) to the amendment, supplement or waiver.
The Company may, but shall not be obligated to, fix a record date for
the purpose of determining the Holders entitled to consent to any amendment,
supplement or waiver. If a record date is fixed, then, notwithstanding the last
sentence of the immediately preceding paragraph, those Persons who were Holders
at such record date (or their duly designated proxies), and only those Persons,
shall be entitled to consent to such amendment, supplement or waiver or to
revoke any consent previously given, whether or not such Persons continue to be
Holders after
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such record date. No such consent shall be valid or effective for more than 90
days after such record date.
After an amendment, supplement or waiver becomes effective, it shall
bind every Securityholder, unless it makes a change described in the second
sentence of Section 9.02. In that case the amendment, supplement or waiver shall
bind each Holder of a Security who has consented to it and every subsequent
Holder of a Security or portion of a Security that evidences the same debt as
the consenting Holder's Security.
SECTION 9.05. Notation on or Exchange of Securities.
If an amendment, supplement or waiver changes the terms of a Security,
the Trustee may require the Holder of the Security to deliver it to the Trustee.
The Trustee may place an appropriate notation on the Security about the changed
terms and return it to the Holder. Alternatively, if the Company or the Trustee
so determines, the Company in exchange for the Security shall issue and the
Trustee shall authenticate a new Security that reflects the changed terms.
Failure to make the appropriate notation or issue a new Security shall not
affect the validity and effect of such amendment, supplement or waiver.
SECTION 9.06. Trustee To Sign Amendments, etc.
The Trustee shall be entitled to receive, and shall be fully protected
in relying upon, an Opinion of Counsel and an Officers' Certificate each stating
that the execution of any amendment, supplement or waiver authorized pursuant to
this Article Nine is authorized or permitted by this Indenture and that such
amendment, supplement or waiver constitutes the legal, valid and binding
obligation of the Company and the Guarantors, enforceable in accordance with its
terms (subject to customary exceptions). The Trustee shall execute any
amendment, supplement or waiver authorized pursuant to this Article Nine,
provided, however, that the Trustee may, but shall not be obligated to, execute
any such amendment, supplement or waiver which affects the Trustee's own rights,
duties or immunities under this Indenture or otherwise. In signing any
amendment, supplement or waiver, the Trustee shall be entitled to receive an
indemnity reasonably satisfactory to it.
ARTICLE TENT
GUARANTEE
SECTION 10.01. Unconditional Guarantee.
Each Guarantor who becomes a party to this Indenture hereby
unconditionally, jointly and severally, guarantees to each Holder of a Security
authenticated and delivered by the Trustee and to the Trustee and its successors
and assigns that: the principal of, premium, if any, and interest (including
Additional Interest) on the Securities will be promptly paid in full when due,
subject to any applicable grace period, whether at maturity, by acceleration or
otherwise, and interest on the overdue principal and, to the extent permitted by
law, interest on any overdue interest (including Additional Interest) on the
Securities and all other obligations of the Company
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to the Holders or the Trustee hereunder or under the Securities will be promptly
paid in full or performed, all in accordance with the terms hereof and thereof;
subject, however, to the limitations set forth in Section 10.04. Each such
Guarantor hereby agrees that its obligations hereunder shall be unconditional,
irrespective of the validity, regularity or enforceability of the Securities or
this Indenture, the absence of any action to enforce the same, any waiver or
consent by any Holder of the Securities with respect to any provisions hereof or
thereof, the recovery of any judgment against the Company, any action to enforce
the same or any other circumstance which might otherwise constitute a legal or
equitable discharge or defense of a guarantor. Each such Guarantor hereby waives
diligence, presentment, demand of payment, filing of claims with a court in the
event of insolvency or bankruptcy of the Company, any right to require a
proceeding first against the Company, protest, notice and all demands whatsoever
and covenants that the Guarantee will not be discharged except by complete
performance of the obligations contained in the Securities, this Indenture, and
such Guarantee. If any Holder or the Trustee is required by any court or
otherwise to return to the Company, any Guarantor, or any custodian, trustee,
liquidator or other similar official acting in relation to the Company or any
Guarantor, any amount paid by the Company or any Guarantor to the Trustee or
such Holder, this Guarantee, to the extent theretofore discharged, shall be
reinstated in full force and effect. Each Guarantor further agrees that, as
between each Guarantor, on the one hand, and the Holders and the Trustee, on the
other hand, (x) the maturity of the obligations guaranteed hereby may be
accelerated as provided in Article Six for the purpose of this Guarantee,
notwithstanding any stay, injunction or other prohibition preventing such
acceleration in respect of the obligations guaranteed hereby, and (y) in the
event of any acceleration of such obligations as provided in Article Six, such
obligations (whether or not due and payable) shall forthwith become due and
payable by each Guarantor for the purpose of this Guarantee.
SECTION 10.02. Severability.
In case any provision of this Guarantee shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
SECTION 10.03. Release of a Guarantor.
If the Securities are defeased in accordance with Section 8.01(c), or
if all of the Capital Stock of any Guarantor is sold (including by issuance or
otherwise) by the Company or any of its Subsidiaries in a transaction
constituting an Asset Disposition (or which, but for the provisions of clause
(c) of the definition of such term, would constitute an Asset Disposition), and,
if required by this Indenture, (x) the Net Available Proceeds from such Asset
Disposition are used in accordance with Section 4.05 or (y) the Company delivers
to the Trustee an Officers' Certificate covenanting that the Net Available
Proceeds from such Asset Disposition will be used in accordance with Section
4.05 and within the time limits specified by such Section 4.05, then such
Guarantor shall be released and discharged from all obligations under this
Article Ten upon such use in the case of clause (x) or upon such delivery in the
case of clause (y). The Trustee shall, at the sole cost and expense of the
Company and upon receipt of an Opinion of Counsel that the provisions of this
Section 10.03 have been complied with, deliver an appropriate instru-
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ment evidencing such release upon receipt of a request by the Company
accompanied by an Officers' Certificate certifying as to the compliance with
this Section. Any Guarantor not so released remains liable for the full amount
of principal of (premium, if any) and interest on the Securities and the other
obligations of the Company hereunder as provided in this Article Ten.
SECTION 10.04. Limitation of Guarantor's Liability.
Each Guarantor, and by its acceptance hereof each Holder and the
Trustee, hereby confirm that it is the intention of all such parties that the
guarantee by such Guarantor pursuant to its Guarantee not constitute a
fraudulent transfer or conveyance for purposes of title 11 of the United States
Code, as amended, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent
Transfer Act or any similar U.S. Federal or state or other applicable law. To
effectuate the foregoing intention, the Holders and such Guarantor hereby
irrevocably agree that the obligations of such Guarantor under the Guarantee
shall be limited to the maximum amount as will, after giving effect to all other
contingent and fixed liabilities of such Guarantor and after giving effect to
any collections from or payments made by or on behalf of any other Guarantor in
respect of the obligations of such other Guarantor under its Guarantee or
pursuant to Section 10.05, result in the obligations of such Guarantor under the
Guarantee not constituting such fraudulent transfer or conveyance.
SECTION 10.05. Contribution.
In order to provide for just and equitable contribution among the
Guarantors, the Guarantors agree, inter se, that in the event any payment or
distribution is made by any Guarantor (a "Funding Guarantor") under the
Guarantee, such Funding Guarantor shall be entitled to a contribution from all
other Guarantors in a pro rata amount, based on the net assets of each Guarantor
(including the Funding Guarantor), determined in accordance with GAAP, subject
to Section 10.04, for all payments, damages and expenses incurred by that
Funding Guarantor in discharging the Company's obligations with respect to the
Securities or any other Guarantor's obligations with respect to the Guarantee.
SECTION 10.06. Execution of Guarantee.
To further evidence their Guarantee to the Holders, any Guarantor
required to Guarantee the Securities pursuant to Section 4.17 shall execute the
endorsement of Guarantee in substantially the form set forth in Exhibit A
hereto, which endorsement shall be delivered to each Holder to be attached to
each Security. Each such Guarantor hereby agrees that its Guarantee set forth in
Section 10.01 shall remain in full force and effect notwithstanding any failure
to endorse on each Security a notation of such Guarantee. Each such Guarantee
shall be signed on behalf of each Guarantor by its Chairman of the Board, its
President or one of its Vice Presidents prior to the authentication of the
Security on which it is endorsed, and the delivery of such Security by the
Trustee, after the authentication thereof hereunder, shall constitute due
delivery of such Guarantee on behalf of such Guarantor. Such signature upon the
Guarantee may be the manual or facsimile signature of such officer and may be
imprinted or otherwise reproduced on the Guarantee, and in case such officer who
shall have signed the Guarantee shall cease to be such officer before the
Security on which such Guarantee is endorsed shall have been authenticated
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and delivered by the Trustee or disposed of by the Company, such Security
nevertheless may be authenticated and delivered or disposed of as though the
Person who signed the Guarantee had not ceased to be such officer of the
Guarantor.
SECTION 10.07. Subordination of Subrogation and Other Rights.
Each Guarantor hereby agrees that any claim against the Company that
arises from the payment, performance or enforcement of such Guarantor's
obligations under its Guarantee or this Indenture, including, without
limitation, any right of subrogation, shall be subject and subordinate to, and
no payment with respect to any such claim of such Guarantor shall be made
before, the payment in full in cash of all outstanding Securities in accordance
with the provisions provided therefor in this Indenture.
ARTICLE ELEVEN
MISCELLANEOUS
SECTION 11.01. Trust Indenture Act Controls.
This Indenture is subject to the provisions of the TIA that are
required to be a part of this Indenture and shall, to the extent applicable, be
governed by such provisions. If any provision of this Indenture modifies any TIA
provision that may be so modified, such TIA provision shall be deemed to apply
to this Indenture as so modified. If any provision of this Indenture excludes
any TIA provision that may be so excluded, such TIA provision shall be excluded
from this Indenture.
The provisions of TIA (S)(S) 310 through 317 that impose duties on any
Person (including the provisions automatically deemed included unless expressly
excluded by this Indenture) are a part of and govern this Indenture, whether or
not physically contained herein.
SECTION 11.02. Notices.
Any notice or communication shall be sufficiently given if in writing
and delivered in person, by facsimile, by overnight courier, or mailed by
first-class mail addressed as follows:
if to the Company:
Triton PCS, Inc.
0000 Xxxxxxx Xxxx
Xxxxxx, Xxxxxxxxxxxx 00000
Attention: Chief Executive Officer
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
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with a copy to:
Xxxxxx X. X'Xxxxxxx, Esq.
Dow, Xxxxxx & Xxxxxxxxx, PLLC
0000 Xxx Xxxxxxxxx Xxx, X.X.
Xxxxxxxxxx X.X. 00000-0000
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
if to the Trustee:
THE BANK OF NEW YORK
Corporate Trust Administration
000 Xxxxxxx Xxxxxx, Xxxxx 0X
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Administration
Facsimile: (000) 000-0000
The Company or the Trustee by notice to the other may designate additional or
different addresses for subsequent notices or communications.
All notices and communications (other than those sent to Holders)
shall be deemed to have been duly given: at the time delivered by hand, if
personally delivered; five Business Days after being deposited in the mail,
postage prepaid, if mailed; when telephonic acknowledgment of receipt is
obtained, if telecopied; and the next Business Day after timely delivery to the
courier, if sent by overnight courier promising next Business Day delivery.
Any notice or communication to a Holder shall be mailed, by first
class mail, postage prepaid, or by overnight air courier promising next Business
Day delivery, including any notice delivered in connection with TIA (S)(S)
310(b), 313(c), 314(a) and 315(b), to him at his address as set forth on the
registration books of the Registrar and shall be sufficiently given to him if so
mailed within the time prescribed. To the extent required by the TIA, any notice
or communication shall also be mailed to any Person described in TIA (S) 313(c).
Failure to mail a notice or communication to a Securityholder or any
defect in it shall not affect its sufficiency with respect to other
Securityholders. If a notice or communication is given in the manner provided
above, it is duly given, whether or not the addressee receives it.
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SECTION 11.03. Communications by Holders with Other Holders.
Securityholders may communicate pursuant to TIA (S) 312(b) with other
Securityholders with respect to their rights under this Indenture or the
Securities. The Company, the Trustee, the Registrar and any other Person shall
have the protection of TIA (S) 312(c).
SECTION 11.04. Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company to the Trustee to take
or refrain from taking any action under this Indenture, the Company shall
furnish to the Trustee at the request of the Trustee:
(1) an Officers' Certificate in form and substance satisfactory to the
Trustee stating that, in the opinion of the signers, all conditions
precedent, if any, provided for in this Indenture relating to the proposed
action have been complied with;
(2) an Opinion of Counsel in form and substance satisfactory to the
Trustee stating that, in the opinion of such counsel, all such conditions
precedent have been complied with; and
(3) where applicable, a certificate or opinion by an independent
certified public accountant satisfactory to the Trustee that complies with
TIA (S) 314(c).
SECTION 11.05. Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(1) a statement that the person making such certificate or opinion has
read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of such person, he has made such
examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and
(4) a statement as to whether or not, in the opinion of such person,
such condition or covenant has been complied with; provided, however, that
with respect to matters of fact an Opinion of Counsel may rely on an
Officers' Certificate or certificates of public officials.
-71-
SECTION 11.06. Rules by Trustee, Paying Agent, Registrar.
The Trustee may make reasonable rules for action by or at a meeting of
Securityholders. The Paying Agent or Registrar may make reasonable rules for its
functions.
SECTION 11.07. Governing Law.
The laws of the State of New York shall govern this Indenture, the
Securities and the Guarantees without regard to principles of conflicts of law.
SECTION 11.08. No Recourse Against Others.
No director, officer, employee or stockholder, as such, of the Company
or any of its Subsidiaries shall have any liability for any obligations of the
Company or any Guarantor under the Securities, the Guarantees or this Indenture
or for any claim based on, in respect of or by reason of such obligations or
their creation. Each Securityholder by accepting a Security waives and releases
all such liability. The waiver and release are part of the consideration for
issuance of the Securities.
SECTION 11.09. Successors.
All agreements of the Company in this Indenture and the Securities
shall bind its successor. All agreements of each Guarantor in this Indenture and
the Guarantee of such Guarantor shall bind its successor. All agreements of the
Trustee in this Indenture shall bind its successor.
SECTION 11.10. Counterpart Originals.
The parties may sign any number of copies of this Indenture. Each
signed copy shall be an original, but all of them together represent the same
agreement.
SECTION 11.11. Severability.
In case any provision in this Indenture, in the Securities or in the
Guarantees shall be invalid, illegal or unenforceable, the validity, legality
and enforceability of the remaining provisions shall not in any way be affected
or impaired thereby, and a Holder shall have no claim therefor against any party
hereto.
SECTION 11.12. No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another indenture, loan or
debt agreement of the Company or a Subsidiary. Any such indenture, loan or debt
agreement may not be used to interpret this Indenture.
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SECTION 11.13. Legal Holidays.
If a payment date is not a Business Day at a place of payment, payment
may be made at that place on the next succeeding Business Day, and no interest
shall accrue for the intervening period.
[Signature Pages Follow]
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S-1
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed as of the date first written above.
TRITON PCS, INC.
By: /s/ Xxxxx X. Xxxxx
------------------------------------
Name: Xxxxx X. Xxxxx
Title: Chief Financial Officer
GUARANTORS:
TRITON MANAGEMENT COMPANY, INC.
By: /s/ Xxxxx X. Xxxxx
------------------------------------
Name: Xxxxx X. Xxxxx
Title: Chief Financial Officer
TRITON PCS FINANCE COMPANY, INC.
By: /s/ Xxxxxxx Xxxxxx
------------------------------------
Name: Xxxxxxx Xxxxxx
Title: President
TRITON PCS HOLDINGS COMPANY L.L.C.
TRITON PCS EQUIPMENT COMPANY L.L.C.
TRITON PCS OPERATING COMPANY L.L.C.
TRITON PCS INVESTMENT COMPANY L.L.C.
By: TRITON MANAGEMENT COMPANY, INC., as
Manager of each of the foregoing
By: /s/ Xxxxx X. Xxxxx
------------------------------------
Name: Xxxxx X. Xxxxx
Title: Chief Financial Officer
S-2
THE BANK OF NEW YORK
as Trustee
By: /s/ Xxxxxx Xxxxxx
------------------------------------
Name: Xxxxxx Xxxxxx
Title: Assistant Treasurer
EXHIBIT A
TRITON PCS, INC.
CUSIP No. [___________]
No. 1 $
----------
8 1/2% SENIOR NOTE DUE 2013
TRITON PCS, INC. promises to pay to CEDE & CO. or registered assigns
the principal sum of [__________] Dollars on [ ], 2013.
Interest Payment Dates: June 1 and December 1, beginning December 1, 2003.
Record Dates: May 15 and November 15.
IN WITNESS WHEREOF, TRITON PCS, INC. has caused this instrument to be
executed by duly authorized officers.
TRITON PCS, INC.
By:
--------------------------------
Name:
Title:
Dated: June 13, 2003
-2-
Certificate of Authentication:
This is one of the 8 1/2% Senior Notes due 2013 referred to in the
within-mentioned Indenture.
THE BANK OF NEW YORK,
as Trustee
By: Date: June 13, 2003
----------------------------------------
Authorized Signatory
(REVERSE OF SECURITY)
TRITON PCS, INC.
8 1/2% Senior Note due 2013
1. Interest.
Triton PCS, Inc., a Delaware corporation (the "Company"), promises to
pay cash interest at the rate of 8 1/2% per annum on the principal amount of
this Security semiannually commencing on December 1, 2003, until the principal
hereof is paid or made available for payment. Interest on the Securities will
accrue from and including the most recent date to which interest has been paid
or, if no interest has been paid, from and including June 13, 2003, through but
excluding the date on which interest is paid. If an Interest Payment Date falls
on a day that is not a Business Day, the interest payment to be made on such
Interest Payment Date will be made on the next succeeding Business Day with the
same force and effect as if made on such Interest Payment Date, and no
additional interest will accrue as a result of such delayed payment. Interest
will be computed on the basis of a 360-day year of twelve 30-day months.
2. Method of Payment.
The interest payable on the Securities, and punctually paid or duly
provided for, on any Interest Payment Date will, as provided in the Indenture
(as defined below), be paid to the Person in whose name this Security is
registered at the close of business on the regular record date, which shall be
the May 15 or November 15 (whether or not a Business Day) next preceding such
Interest Payment Date. Any such interest not so punctually paid or duly provided
for, and any interest payable on such defaulted interest (to the extent lawful),
will forthwith cease to be payable to the Holder on such regular record date and
shall be paid to the person in whose name this Security is registered at the
close of business on a special record date for the payment of such defaulted
interest to be fixed by the Company, notice of which shall be given to Holders
not less than 15 days prior to such special record date. Payment of the
principal of and interest on this Security will be made at the agency of the
Company maintained for that purpose in New York, New York and at any other
office or agency maintained by the Company for such purpose, in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts; provided, however, that at the
option of the Company payment of interest may be made by check mailed to the
address of the Person entitled thereto as such address shall appear in the
Security register.
3. Paying Agent and Registrar.
Initially, The Bank of New York (the "Trustee") will act as Paying
Agent and Registrar. The Company may change any Paying Agent, Registrar or
co-Registrar without notice to the Holders of Securities. The Company or any of
its Subsidiaries may act as Registrar or co-Registrar but may not act as Paying
Agent.
-2-
4. Indenture.
This Security is one of a duly authorized issue of Securities of the
Company, designated as its 8 1/2% Senior Notes due 2013 (the "Securities"),
issuable under an indenture dated as of June 13, 2003 (the "Indenture"), between
the Company, the guarantors party thereto (the "Guarantors") and the Trustee.
The terms of the Securities include those stated in the Indenture and those made
part of the Indenture by the Trust Indenture Act of 1939 (the "Act") (15 U.S.
Code (S)(S) 77aaa-77bbbb) as in effect on the date of the Indenture. The
Securities are subject to all such terms, and Holders of Securities are referred
to the Indenture and the Act for a statement of them. Each Securityholder, by
accepting a Security, agrees to be bound to all of the terms and provisions of
the Indenture, as the same may be amended from time to time. Payment on each
Security is guaranteed on an unsubordinated basis, jointly and severally, by the
Guarantors pursuant to Article Ten of the Indenture.
Capitalized terms contained in this Security to the extent not defined
herein shall have the meanings assigned to them in the Indenture.
5. Optional Redemption.
The Securities will be subject to redemption, at the option of the
Company, in whole or in part, at any time on or after June 1, 2008 and prior to
maturity, upon not less than 30 nor more than 60 days' notice mailed to each
Holder of Securities to be redeemed, in amounts of $1,000 or an integral
multiple of $1,000, at the following redemption prices (expressed as percentages
of principal amount), plus accrued interest to but excluding the date fixed for
redemption (subject to the right of Holders on the relevant Record Date to
receive interest due on an interest payment date that occurs on or prior to the
date fixed for redemption), if redeemed during the 12-month period beginning on
June 1, 2008 of the years indicated:
Year Percentage
---- ----------
2008........................................ 104.250%
2009........................................ 102.833%
2010........................................ 101.417%
2011 and thereafter......................... 100.000%
In addition, prior to June 1, 2006, the Company may redeem up to 35%
of the principal amount of the Securities originally issued with the net cash
proceeds received by the Company from one or more Equity Offerings, at a
redemption price equal to 108.5% of the principal amount thereof, plus accrued
and unpaid interest to the date fixed for redemption; provided, however, that at
least 65% in aggregate principal amount of Securities remains outstanding
immediately after any such redemption (excluding any Securities owned by the
Company or any of its Affiliates). Notice of redemption described in this
paragraph must be mailed to Holders of Securities not later than 60 days
following the consummation of the relevant Equity Offering.
-3-
Selection of Securities for any partial redemption shall be made by
the Trustee, in accordance with the rules of any national securities exchange on
which the Securities may be listed or, if the Securities are not so listed, pro
rata or by lot or in such other manner as the Trustee shall deem appropriate and
fair. Securities in denominations larger than $1,000 may be redeemed in part but
only in integral multiples of $1,000. Notice of redemption will be mailed before
the date fixed for redemption to each Holder of Securities to be redeemed at his
or her registered address. On and after the date fixed for redemption, interest
will cease to accrue on Securities or portions thereof called for redemption.
The Securities will not have the benefit of any sinking fund.
6. Offer to Purchase upon Occurrence of a Change of Control.
Within 30 days following a Change of Control, the Company will offer
to purchase the Securities at a purchase price equal to 101% of the principal
amount thereof plus any accrued and unpaid interest thereon.
7. Notice of Redemption.
Notice of redemption will be mailed by first class mail at least 30
days but not more than 60 days before the redemption date to each Holder of
Securities to be redeemed at his registered address. Securities in denominations
larger than $1,000 may be redeemed in part. On and after the redemption date,
interest ceases to accrue on those Securities or portion of them called for
redemption.
8. Denominations; Transfer; Exchange.
The Securities are in registered form without coupons in denominations
of $1,000 and integral multiples of $1,000. A Holder may transfer or exchange
Securities in accordance with the Indenture. The Registrar may require a Holder,
among other things, to furnish appropriate endorsements and transfer documents
and to pay any taxes and fees required by law or permitted by the Indenture. The
Registrar need not transfer or exchange any Securities selected for redemption.
9. Persons Deemed Owners.
The registered Holder of a Security may be treated as the owner of it
for all purposes.
10. Unclaimed Funds.
If funds for the payment of principal or interest remain unclaimed for
two years, the Trustee or Paying Agent will repay the funds to the Company at
its request. After such re-
-4-
payment Holders of Securities entitled to such funds must look to the Company
for payment unless an abandoned property law designates another person.
11. Discharge Prior to Redemption or Maturity.
The Indenture will be discharged and canceled except for certain
Sections thereof, subject to the terms of the Indenture, upon the payment of all
the Securities or upon the irrevocable deposit with the Trustee of funds or
United States Government Obligations sufficient for such payment or redemption.
12. Amendment; Supplement; Waiver.
Subject to certain exceptions, the Indenture or the Securities may be
amended or supplemented with the consent of the Holders of at least a majority
in principal amount of the outstanding Securities, and any past default or
compliance with any provision may be waived with the consent of the Holders of a
majority in principal amount of the outstanding Securities. Without notice to or
the consent of any Holder, the Company, the Guarantors and the Trustee may amend
or supplement the Indenture or the Securities to cure any ambiguity, defect or
inconsistency, or to make any change that does not materially adversely affect
the rights of any Holder of Securities.
13. Restrictive Covenants.
The Indenture restricts, among other things, the ability of the
Company or any Restricted Subsidiary to permit any Liens to be imposed on its
assets, to make certain Restricted Payments and Investments, limits the
Indebtedness which the Company or any Restricted Subsidiary may incur and limits
the terms on which the Company may engage in certain Asset Dispositions. The
Company is also obligated under certain circumstances to make an offer to
purchase Securities with the net cash proceeds of certain Asset Dispositions.
The Company must report quarterly to the Trustee on compliance with the
covenants in the Indenture.
14. Successor Corporation.
Pursuant to the Indenture, the ability of the Company to consolidate
with, merge with or into or transfer its assets to another person is conditioned
upon certain requirements, including certain financial requirements applicable
to the surviving Person.
15. Defaults and Remedies.
If an Event of Default shall occur and be continuing, the principal of
all of the outstanding Securities, plus all accrued and unpaid interest, if any,
to the date the Securities become due and payable, may be declared due and
payable in the manner and with the effect provided in the Indenture.
-5-
16. Trustee Dealings with Company.
The Trustee in its individual or any other capacity, may become the
owner or pledgee of Securities and make loans to, accept deposits from, and
perform services for the Company or its Affiliates, and may otherwise deal with
the Company or its Affiliates, as if it were not Trustee.
17. No Recourse Against Others.
No director, officer, employee or stockholder, as such, of the Company
or any of its Subsidiaries shall have any liability for any obligations of the
Company or any Guarantor under the Securities, the Guarantee or the Indenture or
for any claim based on, in respect of or by reason of such obligations or their
creation. Each Holder of a Security by accepting a Security waives and releases
all such liability. The waiver and release are part of the consideration for the
issue of the Securities.
18. Authentication.
This Security shall not be valid until the Trustee signs the
certificate of authentication on the other side of this Security.
19. Abbreviations.
Customary abbreviations may be used in the name of a Securityholder or
an assignee, such as TEN COM (= tenants in common), TEN ENT (= tenants by the
entireties), JT TEN (= joint tenants with right of survivorship and not as
tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors
Act).
20. CUSIP Numbers.
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Company has caused CUSIP numbers to be
printed on the Securities and has directed the Trustee to use CUSIP numbers in
notices of redemption as a convenience to Securityholders. No representation is
made as to the accuracy of such numbers either as printed on the Securities or
as contained in any notice of redemption and reliance may be placed only on the
other identification numbers placed thereon.
21. Governing Law.
The laws of the State of New York shall govern the Indenture and this
Security and the Guarantees without regard to principles of conflicts of law.
The Company will furnish to any Holder of record of Securities upon
written request and without charge a copy of the Indenture.
[FORM OF NOTATION ON SECURITY RELATING TO GUARANTEE]
SENIOR GUARANTEE
The Guarantor(s) (as defined in the Indenture referred to in the
Security upon which this notation is endorsed) hereby, jointly and severally,
unconditionally guarantee on an unsubordinated basis (such guarantee by each
Guarantor being referred to herein as the "Guarantee") the due and punctual
payment of the principal of, premium, if any, and interest on the Securities,
whether at maturity, by acceleration or otherwise, the due and punctual payment
of interest on the overdue principal, premium and, to the extent permitted by
law, interest, if any, on the Securities, and the due and punctual performance
of all other obligations of the Company to the Holders or the Trustee, all in
accordance with the terms set forth in Article Ten of the Indenture.
The obligations of each Guarantor to the Holders of Securities and to
the Trustee pursuant to the Guarantee and the Indenture are expressly set forth
in Article Ten of the Indenture, and reference is hereby made to such Indenture
for the precise terms of the Guarantee therein made.
The Guarantee shall not be valid or obligatory for any purpose until
the certificate of authentication on the Securities upon which the Guarantee is
noted shall have been executed by the Trustee under the Indenture by the manual
signature of one of its authorized officers.
This Guarantee shall be governed by and construed in accordance with
the laws of the State of New York without regard to principles of conflicts of
law.
This Guarantee is subject to release upon the terms set forth in the
Indenture.
TRITON MANAGEMENT COMPANY, INC.
By:
-----------------------------------
Name: Xxxxx X. Xxxxx
Title: Chief Financial Officer
TRITON PCS FINANCE COMPANY, INC.
By:
-----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: President
TRITON PCS HOLDINGS COMPANY L.L.C.
TRITON PCS EQUIPMENT COMPANY L.L.C.
TRITON PCS OPERATING COMPANY L.L.C.
TRITON PCS INVESTMENT COMPANY L.L.C.
By: TRITON MANAGEMENT COMPANY, INC.,
as Manager of each of the foregoing
By:
-----------------------------------
Name: Xxxxx X. Xxxxx
Title: Chief Financial Officer
ASSIGNMENT FORM
If you the Holder want to assign this Security, fill in the form below
and have your signature guaranteed:
I or we assign and transfer this Security to:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Print or type name, address and zip code and
social security or tax ID number of assignee)
and irrevocably appoint , agent to transfer
-------------------------------------
this Security on the books of the Company. The agent may substitute another to
act for him.
Dated: Signed:
---------------------------- -----------------------------
(Sign exactly as name appears on the
other side of this Security)
Signature Guarantee:
------------------------------------------------------------
SIGNATURE GUARANTEE
Signatures must be guaranteed by an "eligible guarantor institution"
meeting the requirements of the Registrar, which requirements include membership
or participation in the Security Transfer Agent Medallion Program ("STAMP") or
such other "signature guarantee program" as may be determined by the Registrar
in addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.
OPTION OF HOLDER TO ELECT PURCHASE
If you the Holder want to elect to have this Security purchased by the
Company, check the box: [ ]
If you want to elect to have only part of this Security purchased by
the Company, state the aggregate principal amount: $
Dated: Signed:
---------------------------- -----------------------------
(Sign exactly as name appears on the
other side of this Security)
Signature Guarantee:
-----------------------------------------------------------
SIGNATURE GUARANTEE
Signatures must be guaranteed by an "eligible guarantor institution"
meeting the requirements of the Registrar, which requirements include membership
or participation in the Security Transfer Agent Medallion Program ("STAMP") or
such other "signature guarantee program" as may be determined by the Registrar
in addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.
EXHIBIT B
FORM OF CERTIFICATE OF TRANSFER
TRITON PCS, INC.
0000 Xxxxxxx Xxxx
Xxxxxx, Xxxxxxxxxxxx 00000
Attention: Chief Executive Officer
[Name and Address of Registrar]
Re: 8 1/2% Senior Notes due 2013
Reference is hereby made to the Indenture, dated as of June 13, 2003
(the "Indenture"), between Triton PCS, Inc. (the "Company") and The Bank of New
York, as trustee. Capitalized terms used but not defined herein shall have the
meanings given to them in the Indenture.
(the "Transferor") owns and proposes to transfer the
----------------
Security[ies] specified in Annex A hereto in the principal amount of $ in
-----
such Security[ies] (the "Transfer"), to (the "Transferee"), as further
--------
specified in Annex A hereto. In the event that Transferor holds Physical
Securities, this Certificate is accompanied by one or more certificates
aggregating at least the principal amount of Securities proposed to be
Transferred. In connection with the Transfer, the Transferor hereby certifies
that:
1. [ ] Check if Transferee will take an Interest in the 144A Global
Security. The Transfer is being effected pursuant to and in accordance with Rule
144A under the United States Securities Act of 1933, as amended (the "Securities
Act"), and, accordingly, the Transferor hereby further certifies that the
Securities are being transferred to a Person that the Transferor reasonably
believes is purchasing the Securities for its own account, or for one or more
accounts with respect to which such Person exercises sole investment discretion,
and such Person and each such account is a "qualified institutional buyer"
within the meaning of Rule 144A in a transaction meeting the requirements of
Rule 144A and such Transfer is in compliance with any applicable blue sky
securities laws of any state of the United States. Upon consummation of the
proposed Transfer in accordance with the terms of the Indenture, the transferred
Security will be subject to the restrictions on transfer enumerated in the
Securities Act Legend and in the Indenture and the Securities Act.
2. [ ] Check if Transferee will take an Interest in the Regulation S
Global Security pursuant to Regulation S. The Transfer is being effected
pursuant to and in accordance with Rule 904 under the Securities Act and,
accordingly, the Transferor hereby further certifies that (i) the Transfer is
not being made to a person in the United States and (x) at the time the buy
order was originated, the Transferee was outside the United States or such
Transferor and any Person acting on
-2-
its behalf reasonably believed and believes that the Transferee was outside the
United States or (y) the transaction was executed in, on or through the
facilities of a designated offshore securities market and neither such
Transferor nor any Person acting on its behalf knows that the transaction was
prearranged with a buyer in the United States, (ii) no directed selling efforts
have been made in contravention of the requirements of Rule 904(b) of Regulation
S under the Securities Act and (iii) the transaction is not part of a plan or
scheme to evade the registration requirements of the Securities Act. Upon
consummation of the proposed transfer in accordance with the terms of the
Indenture, the Security will be subject to the restrictions on Transfer
enumerated in the Securities Act Legend printed on the Regulation S Global
Security and in the Indenture and the Securities Act.
3. [ ] Check and complete if Transferee will take delivery of a
Restricted Physical Security pursuant to Rule 144A or Regulation S. One or more
of the events specified in Section 2.06(a) of the Indenture have occurred and
the Transfer is being effected in compliance with the transfer restrictions
applicable to Securities bearing the Securities Act Legend and pursuant to and
in accordance with the Securities Act, and accordingly the Transferor hereby
further certifies that (check one):
(a) [ ] such Transfer is being effected pursuant to and in accordance
with Rule 144A under the Securities Act and the Transferor certifies to the
effect set forth in paragraph 1 above; or
(b) [ ] such Transfer is being effected pursuant to and in accordance
with Rule 904 under the Securities Act and the Transferor certifies to the
effect set forth in paragraph 2 above.
4. [ ] Check if Transferee will take an Interest in the Unrestricted
Global Security. The Transfer is being effected pursuant to and in accordance
with Rule 144 under the Securities Act and in compliance with the transfer
restrictions contained in the Indenture, and the restrictions on transfer
contained in the Indenture and the Securities Act Legend are not required in
order to maintain compliance with the Securities Act. Upon consummation of the
proposed Transfer in accordance with the terms of the Indenture, the transferred
Securities will no longer be subject to the restrictions on transfer enumerated
in the Securities Act Legend and in the Indenture and the Securities Act.
5. [ ] Check if Transferee will take an Interest in the Physical
Global Security that does not bear the Securities Act Legend. One or more of the
events specified in Section 2.06(a) of the Indenture have occurred and the
Transfer is being effected pursuant to and in accordance with Rule 144 under the
Securities Act and in compliance with the transfer restrictions contained in the
Indenture, and the restrictions on transfer contained in the Indenture and the
Securities Act Legend are not required in order to maintain compliance with the
Securities Act. Upon consummation of the proposed Transfer in accordance with
the terms of the Indenture, the transferred Securities will no longer be subject
to the restrictions on transfer enumerated in the Securities Act Legend and in
the Indenture and the Securities Act.
-3-
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company.
-------------------------------------
[Insert Name of Transferor]
By:
---------------------------------
Name:
Title:
Dated:
--------------------------------
FORM OF ANNEX A TO CERTIFICATE
OF TRANSFER
1. The Transferor owns and proposes to transfer the following:
[CHECK ONE OF (a) OR (b)]
(a) [ ] Interests in the
(i) [ ] 144A Global Security (CUSIP _____), or
(ii) [ ] Regulation S Global Security (ISIN _____).
(b) [ ] Physical Security.
2. That the Transferee will hold:
[CHECK ONE]
(a) [ ] Interests in the:
(i) [ ] 144A Global Security (CUSIP _____), or
(ii) [ ] Regulation S Global Security (ISIN _____), or
(iii) [ ] Unrestricted Global Security (CUSIP _____); or
(b) [ ] Physical Securities that bear the Securities Act Legend;
(c) [ ] Physical Securities that do not bear the Securities Act Legend;
in accordance with the terms of the Indenture.
EXHIBIT C
FORM OF CERTIFICATE OF EXCHANGE
TRITON PCS, INC.
0000 Xxxxxxx Xxxx
Xxxxxx, Xxxxxxxxxxxx 00000
Attention:
[Name and Address of Registrar]
Re: 8 1/2% Senior Notes due 2013
(CUSIP _______________)
Reference is hereby made to the Indenture, dated as of June 13, 2003
(the "Indenture"), between Triton PCS, Inc. (the "Company") and The Bank of New
York, as trustee. Capitalized terms used but not defined herein shall have the
meanings given to them in the Indenture.
(the "Holder") owns and proposes to exchange the
----------
Security[ies] specified herein, in the principal amount of $ in such
-----
Security[ies] (the "Exchange"). In the event Holder holds Physical Securities,
this Certificate is accompanied by one or more certificates aggregating at least
the principal amount of Securities proposed to be Exchanged. In connection with
the Exchange, the Holder hereby certifies that:
1. Exchange of Restricted Physical Securities or Interests in the
Initial Global Security for Physical Securities that do not bear the Securities
Act Legend or Unrestricted Global Securities
(a) [ ] Check if Exchange is from Initial Global Securities to the
Unrestricted Global Security. In connection with the Exchange of the Holder's
Initial Global Security to the Unrestricted Global Security in an equal
principal amount, the Holder hereby certifies (i) the Unrestricted Global
Securities are being acquired for the Holder's own account without transfer,
(ii) such Exchange has been effected in compliance with the transfer
restrictions applicable to the Initial Global Securities and pursuant to and in
accordance with the Securities Act of 1933, as amended (the "Securities Act")
and (iii) the restrictions on transfer contained in the Indenture and the
Securities Act Legend are not required in order to maintain compliance with the
Securities Act.
(b) [ ] Check if Exchange is from Restricted Physical Securities to an
Interest in the Unrestricted Global Security. In connection with the Holder's
Exchange of Restricted Physical Securities for Interest in the Unrestricted
Global Security, (i) the Interest in the Unrestricted Global Security are being
acquired for the Holder's own account without trans-
-2-
fer, (ii) such Exchange has been effected in compliance with the transfer
restrictions applicable to Restricted Physical Securities and pursuant to and in
accordance with the Securities Act and (iii) the restrictions on transfer
contained in the Indenture and the Securities Act Legend are not required in
order to maintain compliance with the Securities Act.
(c) [ ] Check if Exchange is from Restricted Physical Securities to
Physical Securities that do not bear the Securities Act Legend. In connection
with the Holder's Exchange of a Restricted Physical Security for Physical
Securities that do not bear the Securities Act Legend, the Holder hereby
certifies (i) the Physical Securities that do not bear the Securities Act Legend
are being acquired for the Holder's own account without transfer, (ii) such
Exchange has been effected in compliance with the transfer restrictions
applicable to Restricted Physical Securities and pursuant to and in accordance
with the Securities Act, (iii) the restrictions on transfer contained in the
Indenture and the Securities Act Legend are not required in order to maintain
compliance with the Securities Act and (iv) one or more of the events specified
in Section 2.06(a) of the Indenture have occurred.
2. [ ] Check if Exchange is from Restricted Physical Securities to
Interests in an Initial Global Security. In connection with the Exchange of the
Holder's Restricted Physical Security for interests in an Initial Global
Security [[CHECK ONE] 144A Global Security, Regulation S Global Security], with
an equal principal amount, (i) the interests in the Initial Global Security are
being acquired for the Holder's own account without transfer and (ii) such
Exchange has been effected in compliance with the transfer restrictions
applicable to the Restricted Physical Security and pursuant to and in accordance
with the Securities Act. Upon consummation of the proposed Exchange in
accordance with the terms of the Indenture, the Initial Global Security issued
will be subject to the restrictions on transfer enumerated in the Securities Act
Legend printed on the Initial Global Securities and in the Indenture and the
Securities Act.
-3-
This certificate and the statements contained herein are made for your
benefit and the benefit of the Issuers.
------------------------------------
[Insert Name of Holder]
By:
--------------------------------
Name:
Title:
Dated:
---------------------------------
