EXHIBIT 4.2
================================================================================
14% SENIOR DISCOUNT NOTES DUE 2010
INDENTURE
Dated as of July 12, 2000
By and Among
iPCS, INC.
As Issuer,
iPCS EQUIPMENT, INC.
and
iPCS WIRELESS, INC.
As Guarantors
And
CTC ILLINOIS TRUST COMPANY,
As Trustee
================================================================================
CROSS-REFERENCE TABLE*
Trust Indenture Act
Section Indenture
------- ---------
310 (a)(1)...................................................... 7.10
(a)(2)...................................................... 7.10
(a)(3)...................................................... N.A.
(a)(4)...................................................... N.A.
(a)(5)...................................................... 7.10
(b)......................................................... 7.10
(c)......................................................... N.A.
311 (a)......................................................... 7.11
(b)......................................................... 7.11
(c)......................................................... N.A.
312 (a)......................................................... 2.05
(b)......................................................... 10.03
(c)......................................................... 10.03
313 (a)......................................................... 7.06
(b)(2)...................................................... 7.06;
............................................................ 7.07
(c)......................................................... 7.06;
10.02
314 (a)......................................................... 4.03;
10.02
(c)(1)...................................................... 10.04
(c)(2)...................................................... 10.04
(c)(3)...................................................... N.A.
(e)......................................................... 10.05
(f)......................................................... NA
315 (a)......................................................... 7.01
(b)......................................................... 7.05,
10.02
(c)......................................................... 7.01
(d)......................................................... 7.01
(e)......................................................... 6.11
316 (a)(last sentence).......................................... 2.09
(a)(1)(A)................................................... 6.05
i
(a)(1)(B).......................................................... 6.04
(a)(2)............................................................. N.A.
(b)................................................................ 6.07
(c)................................................................ 2.12
317 (a)(1)............................................................. 6.08
(a)(2)............................................................. 6.09
(b)................................................................ 2.04
318 (a)................................................................ 10.01
(b)................................................................ N.A.
(c)................................................................ 10.01
N.A. means not applicable.
*This Cross-Reference Table is not part of the Indenture.
ii
TABLE OF CONTENTS
Page
----
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE.............................................. 1
Section 1.01 Definitions.............................................................. 1
Section 1.02 Other Definitions........................................................ 30
Section 1.03 Incorporation by Reference of Trust Indenture Act........................ 30
Section 1.04 Rules of Construction.................................................... 31
ARTICLE II
THE NOTES............................................................................... 32
Section 2.01 Form and Dating.......................................................... 32
Section 2.02 Execution and Authentication............................................. 33
Section 2.03 Registrar and Paying Agent............................................... 33
Section 2.04 Paying Agent to Hold Money in Trust...................................... 34
Section 2.05 Holder Lists............................................................. 34
Section 2.06 Transfer and Exchange.................................................... 35
Section 2.07 Replacement Notes........................................................ 54
Section 2.08 Outstanding Notes........................................................ 55
Section 2.09 Treasury Notes........................................................... 55
Section 2.10 Temporary Notes.......................................................... 56
Section 2.11 Cancellation............................................................. 56
Section 2.12 Defaulted Interest....................................................... 56
Section 2.13 CUSIP Numbers............................................................ 57
ARTICLE III
REDEMPTION AND PREPAYMENT............................................................... 57
Section 3.01 Notices to Trustee....................................................... 57
Section 3.02 Selection of Notes to Be Redeemed........................................ 57
Section 3.03 Notice of Redemption..................................................... 58
Section 3.04 Effect of Notice of Redemption........................................... 59
Section 3.05 Deposit of Redemption Price.............................................. 59
Section 3.06 Notes Redeemed in Part................................................... 60
Section 3.07 Optional Redemption...................................................... 60
Section 3.08 Mandatory Redemption..................................................... 61
Section 3.09 Offer to Purchase........................................................ 61
iii
ARTICLE IV
COVENANTS............................................................................... 63
Section 4.01 Payment of Notes......................................................... 63
Section 4.02 Maintenance of Office or Agency.......................................... 64
Section 4.03 Reports.................................................................. 64
Section 4.04 Compliance Certificate................................................... 65
Section 4.05 Taxes.................................................................... 66
Section 4.06 Stay, Extension and Usury Laws........................................... 66
Section 4.07 Limitation on Restricted Payments........................................ 67
Section 4.08 Dividend and Other Payment Restrictions Affecting Subsidiaries........... 72
Section 4.09 Incurrence of Indebtedness and Issuance of Preferred Stock............... 74
Section 4.10 Asset Sales.............................................................. 77
Section 4.11 Transactions with Affiliates............................................. 80
Section 4.12 Liens.................................................................... 81
Section 4.13 Corporate Existence...................................................... 82
Section 4.14 Offer to Repurchase Upon Change of Control............................... 82
Section 4.15 Payments for Consent..................................................... 84
Section 4.16 Sale and Leaseback Transactions.......................................... 84
Section 4.17 Limitation on Layering Indebtedness...................................... 85
Section 4.18 Limitation On Issuances and Sales of Equity Interests in Restricted
Subsidiaries............................................................. 85
Section 4.19 Business Activities...................................................... 85
Section 4.20 Designation of Restricted and Unrestricted Subsidiaries.................. 86
ARTICLE V
SUCCESSORS.............................................................................. 86
Section 5.01 Merger, Consolidation, or Sale of Assets................................. 86
Section 5.02 Successor Corporation Substituted........................................ 88
ARTICLE VI
DEFAULTS AND REMEDIES................................................................... 89
Section 6.01 Events of Default........................................................ 89
Section 6.02 Acceleration............................................................. 92
Section 6.03 Other Remedies........................................................... 92
Section 6.04 Waiver of Past Defaults.................................................. 93
Section 6.05 Control by Majority...................................................... 93
iv
Section 6.06 Limitation on Suits...................................................... 93
Section 6.07 Rights of Holders of Notes to Receive Payment............................ 94
Section 6.08 Collection Suit by Trustee............................................... 94
Section 6.09 Trustee May File Proofs of Claim......................................... 94
Section 6.10 Priorities............................................................... 95
Section 6.11 Undertaking for Costs.................................................... 96
ARTICLE VII
TRUSTEE................................................................................. 96
Section 7.01 Duties of Trustee........................................................ 96
Section 7.02 Rights of Trustee........................................................ 98
Section 7.03 Individual Rights of Trustee............................................. 99
Section 7.04 Trustee's Disclaimer..................................................... 99
Section 7.05 Notice of Defaults....................................................... 99
Section 7.06 Reports by Trustee to Holders of the Notes............................... 99
Section 7.07 Compensation and Indemnity............................................... 100
Section 7.08 Replacement of Trustee................................................... 101
Section 7.09 Successor Trustee by Merger, etc......................................... 102
Section 7.10 Eligibility; Disqualification............................................ 102
Section 7.11 Preferential Collection of Claims Against Company........................ 103
ARTICLE VIII
LEGAL DEFEASANCE AND COVENANT DEFEASANCE................................................ 103
Section 8.01 Option to Effect Legal Defeasance or Covenant Defeasance................. 103
Section 8.02 Legal Defeasance and Discharge........................................... 103
Section 8.03 Covenant Defeasance...................................................... 104
Section 8.04 Conditions to Legal or Covenant Defeasance............................... 104
Section 8.05 Deposited Money and Government Securities to be Held in Trust; Other
Miscellaneous Provisions................................................. 106
Section 8.06 Repayment to Company..................................................... 107
Section 8.07 Reinstatement............................................................ 107
ARTICLE IX
AMENDMENT, SUPPLEMENT AND WAIVER........................................................ 108
Section 9.01 Without Consent of Holders of Notes...................................... 108
Section 9.02 With Consent of Holders of Notes......................................... 109
Section 9.03 Compliance with Trust Indenture Act...................................... 111
Section 9.04 Revocation and Effect of Consents........................................ 111
v
Section 9.05 Notation on or Exchange of Notes............................................. 111
Section 9.06 Trustee to Sign Amendments, etc.............................................. 111
ARTICLE X
MISCELLANEOUS............................................................................... 112
Section 10.01 Trust Indenture Act Controls................................................. 112
Section 10.02 Notices...................................................................... 112
Section 10.03 Communication by Holders of Notes with Other Holders of Notes................ 113
Section 10.04 Certificate and Opinion as to Conditions Precedent........................... 114
Section 10.05 Statements Required in Certificate or Opinion................................ 114
Section 10.06 Rules by Trustee and Agents.................................................. 115
Section 10.07 No Personal Liability of Directors, Officers, Employees and Stockholders..... 115
Section 10.08 Governing Law................................................................ 115
Section 10.09 No Adverse Interpretation of Other Agreements................................ 115
Section 10.10 Successors................................................................... 115
Section 10.11 Severability................................................................. 116
Section 10.12 Counterpart Originals........................................................ 116
Section 10.13 Table of Contents, Headings, etc............................................. 116
ARTICLE XI
SUBORDINATION OF NOTE GUARANTEES............................................................ 116
Section 11.01 Agreement To Subordinate..................................................... 116
Section 11.02 Liquidation; Dissolution; Bankruptcy......................................... 116
Section 11.03 Default On Designated Senior Debt............................................ 117
Section 11.04 Payment Permitted if No Default.............................................. 119
Section 11.05 Acceleration of Notes........................................................ 119
Section 11.06 When distribution must be paid over.......................................... 119
Section 11.07 Notice By The Company........................................................ 120
Section 11.08 Subrogation.................................................................. 120
Section 11.09 Relative Rights.............................................................. 120
Section 11.10 Subordination May Not Be Impaired By The Guarantors.......................... 121
Section 11.11 Distribution Or Notice To Representative..................................... 122
Section 11.12 Rights Of Trustee And Paying Agent........................................... 122
Section 11.13 Article XI Not To Prevent Events of Default Under A Note Guarantee or
Limit Right to Demand Payment................................................ 123
Section 11.14 Authorization To Effect Subordination........................................ 123
Section 11.15 Article Applicable to Paying Agents.......................................... 123
vi
Section 11.16 Amendments............................................................... 123
ARTICLE XII
GUARANTEES.............................................................................. 124
Section 12.01 Guarantees............................................................... 124
Section 12.02 Additional Guarantees.................................................... 126
Section 12.03 Limitation on Guarantor Liability........................................ 126
Section 12.04 Execution and Delivery of Guarantee...................................... 127
Section 12.05 Guarantors May Consolidate, etc., on Certain Terms....................... 127
Section 12.06 Releases of Guarantees................................................... 129
vii
EXHIBITS
Exhibit A - FORM OF NOTE
Exhibit B - FORM OF CERTIFICATE OF TRANSFER
Exhibit C - FORM OF CERTIFICATE OF EXCHANGE
Exhibit D - FORM OF NOTATION ON NOTE RELATING TO SUBSIDIARY
GUARANTEE
Exhibit E - FORM OF SUPPLEMENTAL INDENTURE TO BE DELIVERED
BY GUARANTORS
Exhibit F - FORM OF CERTIFICATE FROM ACQUIRING INSTITUTIONAL
ACCREDITED INVESTOR
viii
INDENTURE dated as of July 12, 2000 between iPCS, Inc., a
Delaware corporation (the "Company"), as issuer, iPCS Equipment, Inc., a
Delaware corporation, and iPCS Wireless, Inc., a Delaware corporation (each a
"Guarantor"), as guarantors, and CTC Illinois Trust Company, a trust company
organized under the laws of the State of Illinois, as trustee (the "Trustee").
The Company and the Trustee agree as follows for the benefit of each
other and for the equal and ratable benefit of the Holders of the 14% Senior
Discount Notes due 2010 (the "Initial Notes") and the 14% Senior Discount Notes
due 2010 to be used in exchange for such Initial Notes in the Exchange Offer
(the "Exchange Notes" and, together with the Initial Notes, the "Notes"):
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
------------------------------------------
Section 1.01 Definitions.
-----------
"144A Global Note" means a global note in substantially the form
of Exhibit A hereto bearing the Global Note Legend and the Private Placement
Legend and deposited with or on behalf of, and registered in the name of, the
Depositary or its nominee that shall be issued in a denomination equal to the
outstanding principal amount of the Notes sold in reliance on Rule 144A.
"Accounts Receivables Subsidiary" means a Subsidiary of the
Company or any of its Restricted Subsidiaries to which the Company or any of its
Restricted Subsidiaries sells any of their accounts receivable pursuant to a
Receivables Facility.
"Accreted Value" of any outstanding Note as of or to any date of
determination means an amount equal to the sum of (1) the issue price of such
Note as determined in accordance with Section 1273 of the Code, plus (2) the
aggregate of the portions of the original issue discount, i.e., the excess of
the amounts considered as part of the "stated redemption price at maturity" of
such Note within the meaning of Section 1273(a)(2) of the Code or any successor
provisions, whether denominated as principal or interest, over the issue price
of such Note, that shall theretofore have accrued pursuant to Section 1272 of
the Code, without regard to Section 1272(a)(7) of the Code, from the date of
issue of such Note (a) for each six-month or shorter period ending January 15 or
July 15 prior to the date of determination and (b) for the shorter period, if
any, from the end of the immediately preceding six-month or shorter period, as
the case may be, to the
date of determination, plus (3) accrued and unpaid interest to the date such
Accreted Value is paid (without duplication of any amount set forth in (2)
above), minus all amounts theretofore paid in respect of such Note, which
amounts are considered as part of the "stated redemption price at maturity" of
such Note within the meaning of Section 1273(a)(2) of the Code or any successor
provisions whether such amounts paid were denominated principal or interest.
"Acquired Debt" means, with respect to any specified Person, (1)
Indebtedness of any other Person existing at the time such other Person is
merged with or into or became a Subsidiary of such specified Person, whether or
not such Indebtedness is incurred in connection with, or in contemplation of,
such other Person merging with or into, or becoming a Subsidiary of, such
specified Person; and (2) Indebtedness secured by a Lien encumbering any asset
acquired by such specified Person.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For purposes of this definition,
"control," as used with respect to any Person, shall mean the possession,
directly or indirectly, of the power to direct or cause the direction of the
management or policies of such Person, whether through the ownership of voting
securities, by agreement or otherwise; provided that beneficial ownership of 10%
or more of the Voting Stock of a Person shall be deemed to be control. For
purposes of this definition, the terms "controlling," "controlled by" and "under
common control with" shall have correlative meanings.
"Agent" means any Registrar, Paying Agent or co-registrar.
"Annualized Operating Cash Flow" means Operating Cash Flow, for
the latest two full fiscal quarters for which consolidated financial statements
of the Company are publicly available (or if the Company does not make its
financial statements publicly available, the date that is 45 days after the end
of such two fiscal quarters in the event such second of two quarters is other
than the quarter ending at the end of the fiscal year and 90 days after the end
of such two fiscal quarters in the event such second of two quarters ends at the
end of the fiscal year) multiplied by two.
"Applicable Procedures" means, with respect to any transfer or
exchange of or for beneficial interests in any Global Note, the rules and
procedures of the Depositary that apply to such transfer or exchange.
2
"Asset Sale" means (a) the sale, lease, conveyance or other
disposition of any assets or rights other than sales of inventory and sales of
obsolete equipment in the ordinary course of business consistent with past
practices; provided that the sale, conveyance or other disposition of all or
substantially all of the assets of the Company, the Guarantors and their
Restricted Subsidiaries taken as a whole shall be governed by Section 4.14
and/or Section 5.01 hereof and not by Section 4.10 hereof, (b) the issuance of
Equity Interests by any of the Company's Restricted Subsidiaries or the sale of
Equity Interests in any of its Restricted Subsidiaries, (c) a Permitted
Telecommunications Exchange Transaction, and (d) sales of accounts receivable,
or participations therein, in connection with any Receivables Facility.
Notwithstanding the foregoing, none of the following shall be deemed an Asset
Sale: (A) any single transaction or series of related transactions that: (i)
involves assets having a Fair Market Value of less than $1.0 million, or (ii)
results in net proceeds to the Company, the Guarantors and their Restricted
Subsidiaries of less than $1.0 million, (B) a sale, lease, conveyance or other
disposition of assets between or among the Company and/or its Wholly Owned
Restricted Subsidiaries that are Guarantors, (C) an issuance of Equity Interests
by a Wholly Owned Restricted Subsidiary to the Company or to another Wholly
Owned Restricted Subsidiary, (D) a Restricted Payment that is permitted under
Section 4.07, (E) any transfer by the Company or a Subsidiary of property or
equipment with a Fair Market Value of less than $5.0 million to a Person who is
not an Affiliate of the Company in exchange for property or equipment that has a
Fair Market Value at least equal to the Fair Market Value of the property so
transferred, provided that, in the event of a transfer described in this clause
(E), the Company shall deliver to the Trustee an Officers' Certificate
certifying that such exchange complies with this clause (E), (F) the issuance of
directors' qualifying shares of Preferred Capital Stock of a Guarantor or a
Restricted Subsidiary (other than Preferred Capital Stock convertible or
exchangeable into common stock) that is otherwise permitted by this Indenture,
and (G) the transfer or sale of Equity Interests required by applicable laws or
regulations.
"Attributable Debt" in respect of a sale and leaseback transaction
means, at the time of determination, the present value of the obligation of the
lessee for net rental payments during the remaining term of the lease included
in such sale and leaseback transaction including any period for which such lease
has been extended or may, at the option of the lessor, be extended. Such present
value shall be calculated using a discount rate equal to the rate of interest
implicit in such transaction, determined in accordance with GAAP.
"Bankruptcy Law" means Title 11, U.S. Code or any similar federal or
state law for the relief of debtors.
3
"Beneficial Owner" has the meaning assigned to such term in Rule 13d-3
and Rule 13d-5 under the Exchange Act, except that in calculating the beneficial
ownership of any particular "person," as such term is used in Section 13(d)(3)
of the Exchange Act, such "person" shall be deemed to have beneficial ownership
of all securities that such "person" has the right to acquire, whether such
right is currently exercisable or is exercisable only upon the occurrence of a
subsequent condition.
"Blackstone" means Blackstone Capital Partners III Merchant Banking
Fund, L.P. and affiliated funds.
"Board of Directors" means (1) in respect of a limited liability
company, the board of advisors thereof; (2) in respect of a corporation, the
board of directors of the corporation, or any authorized committee thereof; and
(3) in respect of any other Person, the board or committee of that Person
serving a similar function.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors unless the context specifically requires that such
resolution be adopted by a majority of the disinterested directors, in which
case by a majority of such directors, and to be in full force and effect on the
date of such certification and delivered to the Trustee.
"Broker-Dealer" has the meaning set forth in the Registration Rights
Agreement.
"Business Day" means any day other than a Legal Holiday.
"Capital Lease Obligation" means, at the time any determination
thereof is to be made, the amount of the liability in respect of a capital lease
that would at that time be required to be capitalized on a balance sheet in
accordance with GAAP.
"Capital Stock" means (1) in the case of a corporation, corporate
stock; (2) in the case of an association or business entity, any and all shares,
interests, participations, rights or other equivalents, however designated, of
corporate stock; (3) in the case of a partnership or limited liability company,
partnership or membership interests, whether general or limited; and (4) any
other interest or participation that confers on a Person the right to receive a
share of the profits and losses of, or distributions of assets of, the issuing
Person.
4
"Cash Equivalents" means (1) United States dollars; (2) securities
issued or directly and fully guaranteed or insured by the United States
government or any agency or instrumentality thereof, provided that the full
faith and credit of the United States is pledged in support thereof, having
maturities of less than one year from the date of acquisition; (3) certificates
of deposit and Eurodollar time deposits with maturities of less than one year
from the date of acquisition, bankers' acceptances with maturities not exceeding
six months and overnight bank deposits, in each case, with any domestic
commercial bank having capital and surplus in excess of $500 million and a
Xxxxxxxx Bank Watch Rating of "B" or better; (4) repurchase obligations with a
term of not more than seven days for underlying securities of the types
described in clauses (2) and (3) above entered into with any financial
institution meeting the qualifications specified in clause (3) above; (5)
commercial paper having the highest rating obtainable from Xxxxx'x Investors
Service, Inc. or Standard & Poor's Ratings Group and in each case maturing prior
to one year after the date of acquisition; and (6) money market funds at least
95% of the assets of which constitute Cash Equivalents of the kinds described in
clauses (1) through (5) of this definition.
"Cedel" means Cedel Bank, S.A.
"Change of Control" means the occurrence of any of the following: (a)
the sale, transfer, conveyance or other disposition, other than by way of merger
or consolidation, in one or a series of related transactions, of all or
substantially all of the assets of the Company and its Subsidiaries taken as a
whole to any "person" or "group" as such terms are used in Section 13(d)(3) of
the Exchange Act; (b) the adoption of a plan relating to the liquidation or
dissolution of the Company; (c) the consummation of any transaction, including,
without limitation, any merger or consolidation, the result of which is that any
"person" or "group" (as such terms are used in Section 13(d)(3) of the Exchange
Act), other than the Principals or any of their Affiliates, becomes the
Beneficial Owner, directly or indirectly, of more than 50% of the Voting Stock
of the Company, measured by voting power rather than the number of shares;
provided, that so long as the surviving Person in such a transaction is a
Subsidiary of a parent Person, no Person shall be deemed under this clause (c)
of this "Change of Control" definition to be or become a Beneficial Owner of
more than 50% of the Voting Stock of such surviving Person unless such Person
(or any "group," as defined above, to which such Person is a member) shall be or
become a Beneficial Owner of more than 50% of the Voting Stock of such parent
Person; (d) the first day on which more than a majority of the members of the
Board of Directors of the Company are not Continuing Directors; or (e) the
Company consolidates with, or merges with or into, any Person, or any Person
consolidates with, or merges with or into, the Company, in any such event
pursuant to
5
a transaction in which any of the outstanding Voting Stock of the Company is
converted into or exchanged for cash, securities or other property, other than
any such transaction where the Voting Stock of the Company outstanding
immediately prior to such transaction is converted into or exchanged for Voting
Stock, other than Disqualified Stock, of the surviving or transferee Person
constituting a majority of the outstanding shares of such Voting Stock of such
surviving or transferee Person immediately after giving effect to such issuance.
Notwithstanding anything to the contrary contained in clauses (d) and (e) above,
a "Change of Control" shall not be deemed to occur as the result of a merger or
consolidation of the Company with or into a Sprint PCS Affiliate if: (A) after
the announcement of the merger or consolidation and prior to the consummation
thereof: (i) there shall not have occurred any downgrading nor shall any notice
have been given (that is not subsequently removed prior to the consummation
thereof) of any potential or intended downgrading of any rating of the Notes to
a rating that is lower than the rating that existed or was indicated immediately
prior to the announcement of the merger or consolidation, in any case by a
Rating Organization that is not subsequently removed prior to such consummation;
(ii) there shall not have occurred any suspension or withdrawal of, nor shall
any notice have been given of any potential or intended suspension or withdrawal
of, any review (or of any potential or intended review) for a possible change
that does not indicate the direction of the possible change in, any rating of
the Notes (including, without limitation, the placing of any of the Notes on
credit watch with negative or developing implications or under review with an
uncertain direction) by any Rating Organization, in each case that is not
subsequently removed prior to the consummation of such merger or consolidation;
(iii) there shall not have occurred any change, nor shall any notice have been
given of any potential or intended change, in the outlook for any rating of the
Notes to a rating that is lower than the rating that existed or was indicated
immediately prior to the announcement of the merger or consolidation, in any
case by any Rating Organization, that is not subsequently removed prior to the
consummation of such merger or consolidation; and (iv) no Rating Organization
shall have given notice that it has assigned (or is considering assigning) a
rating to the Notes that is lower than the rating that existed or was indicated
immediately prior to the announcement of the merger or consolidation that is not
subsequently removed prior to such consummation, and (B) the Beneficial Owners
of Voting Stock of the Company immediately preceding such merger or
consolidation shall continue to be the Beneficial Owners of at least 25% of the
outstanding Voting Stock, other than Disqualified Stock, of the Company (or the
surviving or transferee Person referred to in clause (e) above or sole
stockholder of such surviving or transferee Person) immediately after giving
effect to the merger or consolidation.
6
"Closing Date" means July 12, 2000.
"Code" means the United States Internal Revenue Code of 1986, as
amended, together with the rules and regulations promulgated thereunder.
"Company" means iPCS, Inc., a Delaware corporation, and any and all
successors thereto.
"Consolidated Debt" means the aggregate amount of Indebtedness of the
Company, the Guarantors and their Restricted Subsidiaries on a consolidated
basis outstanding at the date of determination; provided, that in the event of a
merger or consolidation otherwise permitted under the terms of this Indenture,
Consolidated Debt shall include the aggregate amount of Indebtedness outstanding
at the time of such transaction of such other Person party to such merger or
consolidation.
"Consolidated Debt to Annualized Operating Cash Flow Ratio" means, as
at any date of determination, the ratio of (i) Consolidated Debt to (ii) the
Annualized Operating Cash Flow of the Company as of its most recently completed
fiscal quarter of the Company for which financial statements are publicly
available.
"Consolidated Interest Expense" of any Person means, for any period,
the aggregate amount (without duplication and determined in each case in
accordance with GAAP) of (1) the aggregate interest expense and fees and other
financing costs in respect of Indebtedness (including amortization of original
issue discount and non-cash interest payments and accruals), (2) the interest
component in respect of Capital Lease Obligations and any deferred payment
obligations of such Person and its Restricted Subsidiaries determined on a
consolidated basis in accordance with GAAP, (3) all commissions, discounts,
other fees and charges owed with respect to letters of credit and bankers'
acceptance financing and net costs (including amortization of discounts)
associated with interest rate swap and similar agreements and with foreign
currency hedge, exchange and similar agreements and (4) the product of (a) all
dividend accruals or payments (or guarantees), whether or not in cash, on any
series of Preferred Capital Stock of such Person or any of its Restricted
Subsidiaries, times (b) a fraction, the numerator of which is one and the
denominator of which is one minus the then current combined federal, state and
local statutory tax rate of such Person, expressed as a decimal, in each case,
on a consolidated basis in accordance with GAAP.
"Consolidated Net Income" means, with respect to any specified Person
for any period, the aggregate of the Net Income of such Person and its
Restricted
7
Subsidiaries for such period, on a consolidated basis, determined in accordance
with GAAP; provided that (1) all gains or losses which are either extraordinary
(as determined in accordance with GAAP) or are nonrecurring (including any gain
or loss from the sale or other disposition of assets outside the ordinary course
of business or from the issuance or sale of any capital stock) shall be
excluded; (2) the Net Income, if positive, of any Person that is not a
Restricted Subsidiary or that is accounted for by the equity method of
accounting shall be included only to the extent of the amount of dividends or
distributions paid in cash to the specified Person or a Subsidiary thereof; (3)
the Net Income of any Restricted Subsidiary shall be excluded to the extent that
the declaration or payment of dividends or similar distributions by that
Restricted Subsidiary of that Net Income is not at the date of determination
permitted without any prior governmental approval that has not been obtained or,
directly or indirectly, by operation of the terms of its charter or any
agreement, instrument, judgment, decree, order, statute, rule or governmental
regulation applicable to that Restricted Subsidiary or its stockholders; (4) the
Net Income of any Person acquired in a pooling of interests transaction for any
period prior to the date of such acquisition shall be excluded; (5) the Net
Income, if positive, of any Unrestricted Subsidiary shall be excluded, whether
or not distributed to the specified Person or one of its Subsidiaries and (6)
the cumulative effect of change in accounting principles shall be excluded.
"Consolidated Net Worth" means, with respect to any Person as of any
date, the aggregate consolidated stockholders' equity of such Person (plus
amounts of equity attributable to preferred stock) and its Consolidated
Restricted Subsidiaries, as would be shown on the consolidated balance sheet of
such Person prepared in accordance with GAAP, adjusted to exclude (to the extent
included in calculating such equity), (a) the amount of any such stockholders'
equity attributable to Disqualified Stock or treasury stock of such Person and
its Consolidated Restricted Subsidiaries, (b) all upward revaluations and other
write-ups in the book value of any asset of such Person or a Consolidated
Restricted Subsidiary of such Person subsequent to the date of this Indenture,
(c) all downward revaluations and other write-downs in the book value of any
asset of such Person or a consolidated Restricted Subsidiary of such Person
subsequent to the date of this Indenture, and (d) all investments in Persons
that are not Consolidated Restricted Subsidiaries.
"Consolidation" means the consolidation of the accounts of each of the
Restricted Subsidiaries of the Company, if and to the extent that the accounts
of each such Restricted Subsidiary would normally be consolidated with those of
the Company in accordance with GAAP; provided, however, that "Consolidation"
shall not include consolidation of the accounts of any Unrestricted Subsidiary,
but the interest of the
8
Company or any Restricted Subsidiary in any Unrestricted Subsidiary shall be
accounted for as an investment. The term "Consolidated" has a correlative
meaning.
"Continuing Directors" means, as of any date of determination, any
member of the Board of Directors of the Company who (a) was a member of such
Board of Directors on the date of this Indenture; (b) was appointed or nominated
to the Board of Directors by the holders of the Series A-1 Preferred Stock and
Series A-2 Preferred Stock; or (c) was nominated for election to such Board of
Directors with the approval of a majority of the Continuing Directors who were
members of the Board of Directors at the time of such nomination or election.
"Corporate Trust Office of the Trustee" shall be at the address of the
Trustee specified in Section 10.02 hereof or such other address as to which the
Trustee may give notice to the Company.
"Credit Facilities" means, with respect to the Company or any
Guarantor, one or more debt facilities or commercial paper facilities, in each
case with banks, vendors and other institutional lenders providing for revolving
credit loans, term loans, receivables financing, including through the sale of
receivables to such lenders or to special purpose entities formed to borrow from
such lenders against such receivables, or letters of credit, and shall include
the Senior Financing, in each case, as amended, restated, modified, renewed,
refunded, replaced or refinanced in whole or in part from time to time.
"Custodian" means the Trustee, as custodian with respect to the Notes
in global form, or any successor entity thereto.
"Default" means any event that is, or with the passage of time or the
giving of notice or both would be, an Event of Default.
"Definitive Note" means a certificated Note registered in the name of
the Holder thereof and issued in accordance with Section 2.06 hereof, in
substantially the form of Exhibit A hereto except that such Note shall not bear
the Global Note Legend and shall not have the "Schedule of Exchanges of
Interests in the Global Note" attached thereto.
"Depositary" means, with respect to the Notes issuable or issued in
whole or in part in global form, the Person specified in Section 2.03 hereof as
the Depositary with respect to the Notes, and any and all successors thereto
appointed as depositary
9
hereunder and having become such pursuant to the applicable provision of this
Indenture.
"Designated Senior Debt" means (a) Indebtedness under the Senior
Financing and (b) any other Senior Debt of the Guarantors that has been
designated by the Company in writing to the Trustee as "Designated Senior Debt."
"Disqualified Stock" means any Capital Stock that, by its terms, or by
the terms of any security into which it is convertible, or for which it is
exchangeable, in each case at the option of the holder thereof, or upon the
happening of any event, matures or is mandatorily redeemable, pursuant to a
sinking fund obligation or otherwise, or redeemable at the option of the holder
thereof, in whole or in part, on or prior to the date that is 91 days after the
date on which the Notes mature. Notwithstanding the preceding sentence, any
Capital Stock that would constitute Disqualified Stock solely because the
holders thereof have the right to require the Company to repurchase such Capital
Stock upon the occurrence of a change of control or an asset sale shall not
constitute Disqualified Stock if the terms of such Capital Stock provide that
the Company may not repurchase or redeem any such Capital Stock pursuant to such
provisions unless such repurchase or redemption complies with Section 4.07. In
addition, for purposes hereof, (i) Equity Interests in the form of up to $70.0
million of Series A-2 Preferred Stock issued after the Issue Date and (ii)
Equity Interests issued as payment of dividends on the Series A-1 Preferred
Stock and the Series A-2 Preferred Stock, which dividends shall be paid in full
in additional shares of Series A-1 Preferred Stock and Series A-2 Preferred
Stock, as the case may be, shall not be considered to be Disqualified Stock.
"Domestic Subsidiary" means any Subsidiary other than (a) a Foreign
Subsidiary or (b) a Subsidiary of a Foreign Subsidiary.
"Equity Interests" means Capital Stock and all warrants, options or
other rights to acquire Capital Stock, but excludes any debt security that is
convertible into, or exchangeable for, Capital Stock.
"Equity Offering" means any public offering or private sale of Capital
Stock of the Company in which the net proceeds to the Company are at least $35
million. For purposes of Section 6.01(j), Equity Offering means any public
offering or private sale of Capital Stock of the Company in which the gross
proceeds to the Company are at least $35 million.
10
"Euroclear" means Xxxxxx Guaranty Trust Company of New York, Brussels
office, as operator of the Euroclear systems.
"Event of Termination" means any of the events described in (1)
Section 11.3 of the Management Agreement; (2) Section 13.2 of the Trademark
Agreement or (3) Section 13.2 of the Spectrum Trademark Agreement.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Exchange Notes" means the Notes to be issued in the Exchange Offer
pursuant to Section 2.06(e) hereof.
"Exchange Offer" has the meaning set forth in the Registration Rights
Agreement.
"Exchange Offer Registration Statement" has the meaning set forth in
the Registration Rights Agreement.
"Existing Indebtedness" means all Indebtedness of the Company, the
Guarantors and their Restricted Subsidiaries in existence on the date of this
Indenture, and any refinancing of the same, until such amounts are repaid.
"Fair Market Value" means, with respect to any Property, the price
that could be negotiated in an arm's-length free market transaction, for cash,
between a willing seller and a willing buyer, neither of whom is under undue
pressure or compulsion to complete the transaction. Fair Market Value shall be
determined, except as otherwise provided, (a) if such Property has a Fair Market
Value equal to or less than $5.0 million, by any Officer of the Company, or (b)
if such Property has a Fair Market Value in excess of $5.0 million, by a
majority of the Board of Directors and evidenced by a Board Resolution, dated
within 30 days of the relevant transaction, delivered to the Trustee.
"Foreign Subsidiary" means any Subsidiary which is not organized under
the laws of the United States of America or any State thereof or the District of
Columbia.
"GAAP" means generally accepted accounting principles 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
11
Financial Accounting Standards Board or in such other statements by such other
entity as have been approved by a significant segment of the accounting
profession, which are in effect from time to time.
"Global Note Legend" means the legend set forth in Section
2.06(g)(ii), which is required to be placed on all Global Notes issued under
this Indenture.
"Global Notes" means, individually and collectively, each of the
Restricted Global Notes and the Unrestricted Global Notes in the form of Exhibit
A hereto issued in accordance with Section 2.01, 2.06(b)(iv), 2.06(d)(ii) or
2.06(f) hereof.
"Government Securities" means (1) any security which is (a) a direct
obligation of the United States of America for the payment of which the full
faith and credit of the United States of America is pledged or (b) an obligation
of a Person controlled or supervised by and acting as an agency or
instrumentality of the United States of America the payment of which is
unconditionally guaranteed as a full faith and credit obligation of the United
States of America, which, in either case, is not callable or redeemable at the
option of the issuer thereof, and (2) any depository receipt issued by a bank,
as defined in the Securities Act, as custodian with respect to any Government
Securities and held by such bank for the account of the holder of such
depository receipt, or with respect to any specific payment of principal of or
interest on any Government Securities which is so specified and held, provided
that, except as required by law, such custodian is not authorized to make any
deduction from the amount payable to the holder of such depository receipt from
any amount received by the custodian in respect of the Government Securities or
the specific payment of principal or interest evidenced by such depository
receipt.
"Guarantee" means a guarantee (other than by endorsement of negotiable
instruments for collection in the ordinary course of business), direct or
indirect, in any manner (including by way of a pledge of assets or through
letters of credit or reimbursement agreements in respect thereof), of all or any
part of any Indebtedness.
"Guarantee Obligations" means the obligation, executed pursuant to the
provisions of Article XII of this Indenture, of each Guarantor pursuant to its
Note Guarantee of (a) the full and punctual payment of principal and interest on
the Notes when due, whether at maturity, by acceleration, by redemption or
otherwise, and all other monetary obligations of the Company under the Notes,
and (b) the full and punctual performance within applicable grace periods of all
other obligations of the Company under the Notes.
12
"Guarantors" means iPCS Equipment, Inc. and iPCS Wireless, Inc.
initially and each Restricted Subsidiary formed or organized under the laws of
any state of the United States or District of Columbia that executes a Note
Guarantee pursuant to Article XII of this Indenture.
"Hedging Obligations" means, with respect to any Person, the
obligations of such Person under (1) interest rate swap agreements, interest
rate cap agreements and interest rate collar agreements; and (2) other
agreements or arrangements designed to protect such Person against fluctuations
in interest rates.
"Holder" means a Person in whose name a Note is registered.
"IAI Global Note" means a global note in substantially the form of
Exhibit A hereto bearing the Global Note Legend and the Private Placement Legend
and deposited with or on behalf of, and registered in the name of, the
Depositary or its nominee that shall be initially issued in a denomination equal
to $0, but shall thereafter be revised to represent the outstanding principal
amount of the Notes transferred to Institutional Accredited Investors.
"incur" means create, incur, issue, assume, Guarantee or otherwise
become liable, directly or indirectly, contingently or otherwise, for any
Indebtedness. The term "incurrence" when used as a noun shall have a correlative
meaning. The accretion of principal of a non-interest bearing or other discount
security shall not be deemed the incurrence of Indebtedness.
"Indebtedness" of any Person means, without duplication, (a) all
liabilities and obligations, contingent or otherwise, of such Person, to the
extent such liabilities and obligation would appear as a liability upon the
consolidated balance sheet of such Person in accordance with GAAP, (i) in
respect of borrowed money (whether or not the recourse of the lender is to the
whole of the assets of such Person or only to a portion thereof), (ii) evidenced
by bonds, notes, debentures or similar instruments, or (iii) representing the
balance deferred and unpaid of the purchase price of any property or services,
except (other than accounts payable or other obligations to trade creditors
which have remained unpaid for greater than 60 days past their original due
date) those incurred in the ordinary course of its business that would
constitute ordinarily a trade payable to trade creditors; (b) all liabilities
and obligations, contingent or otherwise, of such Person (i) evidenced by
bankers' acceptances or similar instruments issued or accepted by banks, (ii)
relating to Capital Lease Obligations, or (iii) evidenced by a letter of credit
or a reimbursement obligation of such Person with respect to any letter of
13
credit; (c) all net obligations of such Person under Hedging Obligations; (d)
all liabilities and obligations of others of the kind described in the preceding
clause (a), (b) or (c) that such Person has guaranteed or provided credit
support or that is otherwise its legal liability or which are secured by any
assets or property of such Person and all obligations to purchase, redeem or
acquire any third party Equity Interests; (e) any and all deferrals, renewals,
extensions, refinancing and refundings (whether direct or indirect) of, or
amendments, modifications or supplements to, any liability of the kind described
in any of the preceding clauses (a), (b), (c) or (d), or this clause (e),
whether or not between or among the same parties; and (f) all Disqualified Stock
of such Person (measured at the greater of its voluntary or involuntary maximum
fixed repurchase price plus accrued and unpaid dividends); provided, that any
indebtedness which has been defeased in accordance with GAAP or defeased
pursuant to the deposit of cash or Governmental Securities (in an amount
sufficient to satisfy all such indebtedness obligations at maturity or
redemption, as applicable, and all payments of interest and premium, if any) in
a trust or account created or pledged for the sole benefit of the holders of
such indebtedness, and subject to no other Liens, and the other applicable terms
of the instrument governing such indebtedness, shall not constitute
"Indebtedness." The amount of any Indebtedness outstanding as of any date shall
be (1) the accreted value thereof, in the case of any Indebtedness issued with
original issue discount, but the accretion of original issue discount in
accordance with the original terms of Indebtedness issued with an original issue
discount will not be deemed to be an incurrence; and (2) the principal amount
thereof, together with any interest thereon that is more than 30 days past due,
in the case of any other Indebtedness. For purposes of this definition,
Indebtedness shall not include any amounts representing contributions from
members of the Preferred Stock Investment Group in exchange for Series A-1
Preferred Stock and Series A-2 Preferred Stock.
"Indenture" means this Indenture, as amended or supplemented from time
to time in accordance with Article IX hereof.
"Indirect Participant" means a Person who holds a beneficial interest
in a Global Note through a Participant.
"Initial Notes" means $300 million in aggregate principal amount of
Notes issued under this Indenture on the date hereof.
"Initial Purchasers" means Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities
Corporation and TD Securities (USA), Inc.
14
"Institutional Accredited Investor" means an "accredited investor"
within the meaning of Rule 501(a)(1), (2), (3) or (7) under the Securities Act.
"Investments" means, with respect to any Person, all investments by
such Person in other Persons, including Affiliates, in the forms of direct or
indirect loans, including guarantees of Indebtedness or other obligations,
advances or capital contributions, excluding commission, travel and similar
advances to officers and employees made in the ordinary course of business,
purchases or other acquisitions for consideration of Indebtedness, Equity
Interests or other securities, together with all items that are or would be
classified as investments on a balance sheet prepared in accordance with GAAP.
If the Company, any Guarantor or any Restricted Subsidiary sells or otherwise
disposes of any Equity Interests of any direct or indirect Restricted Subsidiary
such that, after giving effect to any such sale or disposition, such Person is
no longer a Restricted Subsidiary, the Company shall be deemed to have made an
Investment on the date of any such sale or disposition equal to the Fair Market
Value of the Equity Interests of such Restricted Subsidiary not sold or disposed
of in an amount determined as provided in the penultimate paragraph of Section
4.07.
"Issue Date" means the date on which the Notes are initially issued.
"Legal Holiday" means a Saturday, a Sunday or a day on which banking
institutions in the city where the principal trust office of the Trustee is
located or the City of New York or at a place of payment are authorized by law,
regulation or executive order to remain closed. If a payment date is a Legal
Holiday at a place of payment, payment may be made at that place on the next
succeeding day that is not a Legal Holiday, and no interest shall accrue on such
payment for the intervening period.
"Letter of Transmittal" means the letter of transmittal to be prepared
by the Company and sent to all Holders of the Notes for use by such Holders in
connection with the Exchange Offer.
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such asset,
whether or not filed, recorded or otherwise perfected under applicable law,
including any conditional sale or other title retention agreement, any lease in
the nature thereof, any option or other agreement to sell or give a security
interest in and any filing of or agreement to give any financing statement under
the Uniform Commercial Code (other than precautionary filings made with respect
to operating leases and sales of receivables), or equivalent statutes, of any
jurisdiction.
15
"Liquidated Damages" means all liquidated damages then owing pursuant
to Section 5 of the Registration Rights Agreement.
"Net Income" means, with respect to any Person, the net income (loss)
of such Person and its Restricted Subsidiaries, determined in accordance with
GAAP and before any reduction in respect of preferred stock dividends,
excluding, however (1) any gain, but not loss, together with any related
provision for taxes on such gain, but not loss, realized in connection with (a)
any Asset Sale; or (b) the disposition of any securities by such Person or any
of its Restricted Subsidiaries or the extinguishment of any Indebtedness of such
Person or any of its Restricted Subsidiaries; and (2) any extraordinary gain,
but not loss, together with any related provision for taxes on such
extraordinary gain, but not loss.
"Net Proceeds" means the aggregate cash proceeds received by the
Company, any Guarantor or any of their Restricted Subsidiaries in respect of any
Asset Sale (including, without limitation, any cash received upon the sale or
other disposition of any non-cash consideration received in any Asset Sale), net
of (i) the direct costs relating to such Asset Sale (including, without
limitation, legal, accounting and investment banking fees, and sales
commissions) and any relocation expenses incurred as a result thereof, taxes
paid or payable as a result thereof, in each case after taking into account any
available tax credits or deductions and any tax sharing arrangements, and (ii)
amounts required to be applied to the repayment of Indebtedness, other than
Senior Debt, Indebtedness secured by a Lien on the asset or assets that were the
subject of such Asset Sale and appropriate amounts to be provided by the
Company, any Guarantor or any Restricted Subsidiary, as the case may be, as a
reserve required in accordance with GAAP against any liabilities associated with
such Asset Sale and retained by the Company, any Guarantor or any Restricted
Subsidiary, as the case may be, after such Asset Sale, including, without
limitation, pension and other post-employment benefit liabilities, liabilities
related to environmental matters and liabilities under any indemnification
obligations associated with such Asset Sale.
"Non-Recourse Debt" means Indebtedness (1) as to which neither the
Company nor any of its Restricted Subsidiaries (a) provides credit support of
any kind, including any undertaking, agreement or instrument that would
constitute Indebtedness, (b) is directly or indirectly liable as a guarantor or
otherwise, or (c) constitutes the lender; (2) no default with respect to which,
including any rights that the holders thereof may have to take enforcement
action against an Unrestricted Subsidiary, would permit upon notice, lapse of
time or both any holder of any other Indebtedness, other than the Notes, of the
Company or any of its Restricted Subsidiaries to declare a default on such
16
other Indebtedness or cause the payment thereof to be accelerated or payable
prior to its stated maturity; and (3) as to which the lenders have been notified
in writing that they will not have any recourse to the stock or assets of the
Company or any of its Restricted Subsidiaries.
"Non-U.S. Person" means a Person who is not a U.S. Person.
"Note Guarantee" means a Guarantee on the terms set forth in this
Indenture by a Guarantor of the Company's obligations with respect to the Notes.
"Note Obligations" means all Obligations with respect to the Notes,
including without limitation, principal of, premium, if any, and interest, if
any, payable pursuant to the terms of the Notes (including upon the acceleration
or redemption thereof), together with and including any amounts received or
receivable upon the exercise of rights of recision or other rights of action
(including claims for damages) or otherwise.
"Notes" has the meaning assigned to it in the preamble to this
Indenture.
"Obligations" means any principal, interest, penalties, fees,
indemnifications, reimbursements, damages and other liabilities payable under
the documentation governing any Indebtedness.
"Offering" means the offering of the Notes by the Company pursuant to
the Offering Memorandum.
"Offering Memorandum" means the offering memorandum of the Company,
dated July 7, 2000, relating to the Initial Notes.
"Officer" means the Chief Executive Officer, the Chief Operations
Officer, the Chief Financial Officer or the Chief Technology Officer of the
Company.
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, the President or Vice President, and by the Treasurer, an Assistant
Treasurer, the Secretary, or an Assistant Secretary, of the Company, and
delivered to the Trustee.
"Operating Cash Flow" means, for any fiscal quarter, the Company's
Consolidated Net Income (Loss), plus (to the extent deducted from net revenues
in determining Consolidated Net Income (Loss) for such period), the sum of
17
(i) depreciation, amortization and other non-cash charges in respect thereof for
such fiscal quarter, and (ii) all amounts deducted in calculating Consolidated
Net Income (Loss) for such fiscal quarter in respect of Consolidated Interest
Expense, and all income taxes, whether or not deferred, applicable to such
income period, all as determined on a consolidated basis in accordance with
GAAP, less the amount of all cash payments made by such Person or any of its
Restricted Subsidiaries during such period to the extent such payments relate to
non-cash charges that were added back in determining Operating Cash Flow for
such period or any prior period; provided, that consolidated income tax expense
and depreciation and amortization of a Restricted Subsidiary that is less than a
Wholly Owned Subsidiary shall only be added to the extent of the equity interest
of the Company in such Restricted Subsidiary. For purposes of calculating
Operating Cash Flow for the fiscal quarter most recently completed for which
financial statements are publicly available prior to any date on which an action
is taken that requires a calculation of Operating Cash Flow to Consolidated
Interest Expense Ratio or Consolidated Debt to Annualized Operating Cash Flow
Ratio, (1) any Person that is a Restricted Subsidiary on such date (or would
become a Restricted Subsidiary in connection with the transaction that requires
the determination of such ratio) will be deemed to have been a Restricted
Subsidiary at all times during such fiscal quarter, (2) any Person that is not a
Restricted Subsidiary on such date (or would cease to be a Restricted Subsidiary
in connection with the transaction that requires the determination of such
ratio) will be deemed not to have been a Restricted Subsidiary at any time
during such fiscal quarter and (3) if the Company or any Restricted Subsidiary
shall have in any manner acquired (including through commencement of activities
constituting such operating business) or disposed of (including through
termination or discontinuance of activities constituting such operating
business) any operating business during or subsequent to the most recently
completed fiscal quarter, such calculation will be made on a pro forma basis (to
the extent permitted by Regulation S-X) on the assumption that such acquisition
or disposition had been completed on the first day of such completed fiscal
quarter.
"Opinion of Counsel" means an opinion from legal counsel who is
reasonably acceptable to the Trustee, that meets the requirements of Sections
10.04 and 10.05 hereof. The counsel may be an employee of or counsel to the
Company, any Subsidiary of the Company or the Trustee.
"Participant" means, with respect to the Depositary, Euroclear or
Cedel, a Person who has an account with the Depositary, Euroclear or Cedel,
respectively, and, with respect to the Depository Trust Company, shall include
Euroclear and Cedel.
18
"Paying Agent" means any Person authorized by the Company to pay the
principal of, and premium, if any, or interest on any Notes on behalf of the
Company.
"Permitted Business" means the business primarily involved in the
ownership, design, construction, development, acquisition, installation,
integration, management and/or provision of Telecommunications Assets or any
business or activity reasonably related or ancillary thereto, including, without
limitation, any business conducted by the Company, any Guarantor or any
Restricted Subsidiary of the Company on the Issue Date.
"Permitted Indebtedness" is defined in Section 4.09(b).
"Permitted Investments" means (1) any Investment by the Company in a
Restricted Subsidiary of the Company that is a Guarantor; (2) any Investment in
Cash Equivalents; (3) any Investment by the Company or any Restricted Subsidiary
of the Company in a Person, if as a result of or in connection with such
Investment (a) such Person becomes a Wholly-Owned Restricted Subsidiary of the
Company that is a Guarantor; or (b) 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 Wholly-Owned Restricted
Subsidiary of the Company that is a Guarantor; (4) any Investment made as a
result of the receipt of non-cash consideration from an Asset Sale that was made
pursuant to and in compliance with Section 4.10; (5) any acquisition of assets
solely in exchange for the issuance of Equity Interests of the Company, other
than Disqualified Stock; (6) Investments, the payment of which consists only of
Equity Interests, other than Disqualified Stock; and (7) other Investments in
any Person having an aggregate Fair Market Value, measured on the date each such
Investment was made and without giving effect to subsequent changes in value,
when taken together with all other Investments made pursuant to this clause (7)
since the date of this Indenture, not to exceed $50.0 million.
"Permitted Junior Securities" means, with respect to any Guarantor,
Equity Interests in such Guarantor or its Subsidiaries or debt securities of
such Guarantor or its Subsidiaries that are subordinated to all Senior Debt of
such Guarantor (and any debt securities issued in exchange for such Senior Debt)
to substantially the same extent as, or to a greater extent than, the Note
Guarantees are subordinate to such Senior Debt.
"Permitted Liens" means (1) Liens on the assets of the Company and any
Guarantor securing Indebtedness and other Obligations under Credit Facilities
that were
19
permitted by the terms of this Indenture to be incurred; (2) Liens in favor of
the Company or the Guarantors; (3) Liens on property of a Person existing at the
time such Person is merged with or into or consolidated with the Company or any
Restricted Subsidiary; provided that such Liens were in existence prior to the
contemplation of such merger or consolidation and do not extend to any assets
other than those of the Person merged into or consolidated with the Company or
the Restricted Subsidiary; (4) Liens on property existing at the time of
acquisition thereof by the Company or any Restricted Subsidiary of the Company,
provided that such Liens were in existence prior to the contemplation of such
acquisition; (5) Liens and deposits made to secure the performance of statutory
obligations, surety or appeal bonds, performance bonds or other obligations of a
like nature incurred in the ordinary course of business; (6) Liens to secure
Purchase Money Indebtedness and Capital Lease Obligations, permitted by Section
4.09(b)(iv) covering only the assets acquired with such Purchase Money
Indebtedness and Capital Lease Obligations; (7) Liens existing on the date of
this Indenture; (8) Liens on assets of Guarantors to secure Senior Debt of such
Guarantor that was permitted by the Indenture to be incurred; (9) 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 that any reserve or other
appropriate provision as shall be required in conformity with GAAP shall have
been made therefor; and (10) Liens incurred in the ordinary course of business
of the Company or any Restricted Subsidiary of the Company with respect to
obligations that do not exceed $10.0 million at any one time outstanding.
"Permitted Refinancing Indebtedness" means any Indebtedness of the
Company or any of its Restricted Subsidiaries issued in exchange for, or the net
proceeds of which are used to extend, refinance, renew, replace, defease or
refund other Indebtedness of the Company or any of its Restricted Subsidiaries,
other than intercompany Indebtedness; provided that (1) the principal amount, or
accreted value, if applicable, of such Permitted Refinancing Indebtedness does
not exceed the principal amount of, or accreted value, if applicable, plus 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, plus accrued interest on, the Indebtedness so extended, refinanced,
renewed, replaced, defeased or refunded, plus the amount of reasonable expenses
incurred in connection therewith; (2) such Permitted Refinancing Indebtedness
has a final maturity date later than the final maturity date of, and has a
Weighted Average Life to Maturity equal to or greater than the Weighted Average
Life to Maturity of, the Indebtedness being extended, refinanced, renewed,
replaced, defeased or refunded; (3) if the Indebtedness being extended,
refinanced, renewed, replaced, defeased or refunded is subordinated in right of
payment to the Notes, such Permitted Refinancing Indebtedness has a final
maturity date later than the final maturity date of, and is subordinated in
right of payment to, the Notes on terms at least as favorable to the Holders of
Notes as those contained in the documentation governing the Indebtedness being
extended, refinanced, renewed, replaced, defeased
20
or refunded; (3) if the Indebtedness being extended, refinanced, renewed,
replaced, defeased or refunded is subordinated in right of payment to the Notes,
such Permitted Refinancing Indebtedness has a final maturity date later than the
final maturity date of, and is subordinated in right of payment to, the Notes on
terms at least as favorable to the Holders of Notes as those contained in the
documentation governing the Indebtedness being extended, refinanced, renewed,
replaced, defeased or refunded; and (4) such Indebtedness is incurred either by
the Company or by its Restricted Subsidiary who is the obligor on the
Indebtedness being extended, refinanced, renewed, replaced, defeased or
refunded.
"Permitted Telecommunications Exchange Transaction" means a
transaction in which Telecommunications Assets are exchanged for any combination
of Telecommunications Assets and cash or Cash Equivalents.
"Permitted Tower Sale and Leaseback Transactions" means the sale and
leaseback transactions contemplated by the Tower Sale and Leaseback Agreement
between Illinois PCS, L.L.C. (the predecessor entity of the Company) and
American Tower Corporation and other tower sale and leaseback transactions
entered into by the Company, the Guarantors or any of their Restricted
Subsidiaries in the ordinary course of business and consistent with past
practice.
"Person" means any individual, corporation, partnership, joint
venture, trust, unincorporated organization or government or any agency or
political subdivision thereof.
"Preferred Capital 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.
"Preferred Stock Investment Group" means the investors comprising the
investment group led by Blackstone which are purchasing Series A-1 Preferred
Stock on the Issue Date.
"Principals" means Geneseo Communications, Inc., Cambridge Telcom,
Inc. and Blackstone.
21
"Private Placement Legend" means the legend set forth in Section
2.06(g)(i) to be placed on all Notes issued under this Indenture except where
otherwise permitted by the provisions of this Indenture.
"Property" means, with respect to any Person, any interest of such
Person in any kind of property or asset, whether real, personal or mixed, or
tangible or intangible, including Capital Stock in, and other securities of, any
other Person. For purposes of any calculation required pursuant to this
Indenture, the value of any Property shall be its Fair Market Value.
"Purchase Money Indebtedness" of any Person means any Indebtedness of
such Person to any seller or other Person incurred solely to finance the
acquisition (including in the case of a Capital Lease Obligation, the lease),
construction, installation or improvement of any acquired real or personal
property which is incurred within 90 days following such acquisition,
construction, installation or improvement and is secured only by the assets so
financed.
"QIB" means a "qualified institutional buyer" as defined in Rule 144A.
"Qualified Receivables" means, at any time, net Receivables of the
Company and its Restricted Subsidiaries, as evidenced on the most recent
quarterly consolidated balance sheet of the Company as at a date at least 45
days prior to such time, arising in the ordinary course of business of the
Company or any of its Restricted Subsidiaries.
"Rating Organization" means Standard & Poor's Ratings Group and
Xxxxx'x Investors Service, Inc. and their successors.
"Receivables" means receivables, chattel paper, instruments, documents
or intangibles evidencing or relating to the right of payment of money and
proceeds and products thereof in each case generated in the ordinary course of
business.
"Receivables Facility" means one or more receivables financing
facilities, as amended from time to time, pursuant to which the Company, the
Guarantors or any of their Restricted Subsidiaries sells their accounts
receivable to an Accounts Receivable Subsidiary.
"Receivables Fees" means distributions or payments made directly or by
means of discounts with respect to any participation interests issued or sold in
22
connection with, and other fees paid to a Person that is not a Restricted
Subsidiary in connection with, any Receivables Facility.
"Registration Rights Agreement" means the Registration Rights
Agreement, dated as of July 12, 2000, by and among the Company, the Guarantors
and the Initial Purchasers, as such agreement may be amended, modified or
supplemented from time to time.
"Regulation S" means Regulation S promulgated under the Securities
Act.
"Regulation S Global Note" means a Global Note in substantially the
form of Exhibit A hereto bearing the Global Note Legend and the Private
Placement Legend and deposited with or on behalf of and registered in the name
of the Depositary or its nominee that shall be initially issued in a
denomination equal to $0, but shall thereafter be revised to represent the
outstanding principal amount of the Notes transferred or sold in reliance on
Rule 903 of Regulation S.
"Responsible Officer," when used with respect to the Trustee, means
any officer within the Corporate Trust Department of the Trustee (or any
successor group of the Trustee) or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above designated
officers and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of his or her
knowledge of and familiarity with the particular subject.
"Restricted Definitive Note" means a Definitive Note bearing the
Private Placement Legend.
"Restricted Global Note" means a Global Note bearing the Private
Placement Legend.
"Restricted Investment" means any Investment that is not a Permitted
Investment.
"Restricted Period" means the 40-day restricted period as defined in
Regulation S.
"Restricted Subsidiary" of a Person means any Subsidiary of the
referent Person that is not an Unrestricted Subsidiary. Unless the context
otherwise requires, a
23
Restricted Subsidiary means a Subsidiary of the Company that is not an
Unrestricted Subsidiary.
"Rule 144" means Rule 144 promulgated under the Securities Act.
"Rule 144A" means Rule 144A promulgated under the Securities Act.
"Rule 903" means Rule 903 promulgated under the Securities Act.
"Rule 904" means Rule 904 promulgated the Securities Act.
"Sale and Leaseback Transaction" of any Person means an arrangement
with any lender or investor or to which such lender or investor is a party
providing for the leasing by such Person of any property or asset of such Person
which has been or is being sold or transferred by such Person more than 365 days
after the acquisition thereof or the completion of construction or commencement
of operation thereof to such lender or investor or to any Person to whom funds
have been or are to be advanced by such lender or investor on the security of
such property or asset. The stated maturity of such arrangement is the date of
the last payment of rent or any other amount due under such arrangement prior to
the first date on which such arrangement may be terminated by the lessee without
payment of a penalty.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended.
"Senior Debt" means (1) all Indebtedness outstanding under Credit
Facilities and all Hedging Obligations with respect thereto; and (2) all
Obligations with respect to items listed in the preceding clause (1).
Notwithstanding anything to the contrary in the preceding, Senior Debt will not
include (whether or not constituting Indebtedness) (1) any liability for
federal, state, local or other taxes owed or owing by the Company; (2) any
Indebtedness of the Company to any of its Subsidiaries or other Affiliates; (3)
any trade payables; or (4) any Indebtedness that is incurred in violation of
this Indenture.
"Senior Financing" means the Credit Agreement dated as of July 12,
2000 by and among iPCS Wireless, Inc., as Borrower, the Company and iPCS
Equipment, Inc., as Guarantors, the lenders party thereto, Toronto Dominion
(Texas), Inc., as administrative agent, and GE Capital Corporation, as
syndication agent, as such may be
24
amended, restated, modified, renewed, refunded, replaced, increased (as may be
permitted by this Indenture) or refinanced in whole or in part from time to
time.
"Separability Legend" has the meaning specified in Section 2.06(g).
"Separation Date" means the earliest of (i) July 15, 2001, (ii) the
commencement of the Exchange Offer, (iii) the effective date of a Shelf
Registration Statement, (iv) the commencement of a Change of Control Offer or
upon the delivery by the Company to the Trustee of a notice of redemption in
accordance with Section 3.01, (v) upon the occurrence of an Event of Default,
and (vi) such date as Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation in its
sole discretion shall determine.
"Series A-1 Preferred Stock" means the $50.0 million aggregate amount
of the series of Preferred Capital Stock designated as Series A-1 Convertible
Participating Preferred Stock of the Company pursuant to a Certificate of
Designations filed with the Delaware Secretary of State.
"Series A-2 Preferred Stock" means the $70.0 million aggregate amount
of the series of Preferred Capital Stock designated as Series A-2 Convertible
Participating Preferred Stock of the Company pursuant to a Certificate of
Designations filed with the Delaware Secretary of State.
"Shelf Registration Statement" means the Shelf Registration Statement
as defined in the Registration Rights Agreement.
"Significant Subsidiary" means any Restricted Subsidiary that would be
a "significant subsidiary" as defined in Article 1, Rule 1-02 of Regulation S-X,
promulgated pursuant to the Securities Act, as such Regulation is in effect on
the date of this Indenture.
"Sprint Agreements" means the (1) Management Agreement between
SprintCom, Inc. and Illinois PCS, L.L.C. (the predecessor entity of the
Company), dated as of January 22, 1999, and any exhibits, schedules or addendum
thereto, as such may be further amended, modified or supplemented from time to
time (the "Management Agreement"); (2) Sprint PCS Services Agreement between
Sprint Spectrum L.P. and Illinois PCS, L.L.C. (the predecessor entity of the
Company), dated as of January 22, 1999, and any exhibits, schedules or addendum
thereto, as such may be amended, modified or supplemented from time to time; (3)
Sprint Trademark and Service Xxxx License Agreement between Sprint
Communications Company, L.P. and Illinois PCS,
25
L.L.C. (the predecessor entity of the Company), dated as of January 22, 1999,
and any exhibits, schedules or addendum thereto, as such may be amended,
modified or supplemented from time to time (the "Trademark Agreement"); and (4)
Sprint Spectrum Trademark and Service xxxx License Agreement between Sprint
Spectrum L.P. and Illinois PCS, L.L.C. (the predecessor entity of the Company),
dated as of January 22, 1999, and any exhibits, schedules or addendum thereto,
as such may be amended, modified or supplemented from time to time (the
"Spectrum Trademark Agreement").
"Sprint PCS Affiliate" means any Person whose sole or predominant
business is operating a personal communications services business pursuant to
arrangements with Sprint Spectrum L.P. and/or its Affiliates, or their
successors, similar to the Sprint Agreements.
"Stated Maturity" means, with respect to any installment of
interest or principal on any series of Indebtedness, the date on which such
payment of interest or principal was scheduled to be paid in the original
documentation governing such Indebtedness, and shall not include any contingent
obligations to repay, redeem or repurchase any such interest or principal prior
to the date originally scheduled for the payment thereof.
"Subsidiary" means, with respect to a Person, (a) any corporation,
association or other business entity of which more than 50% of the total voting
power of shares of Capital Stock entitled (without regard to the occurrence of
any contingency) to vote in the election of directors, managers or trustees
thereof is at the time owned or controlled, directly or indirectly, by such
Person or one or more of the other Subsidiaries of that Person (or a combination
thereof) and (b) any partnership (i) the sole general partner or the managing
general partner of which is such Person or a Subsidiary of such Person or (ii)
the only general partners of which are such Person or of one or more
Subsidiaries of such Person (or any combination thereof).
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. (S)(S) 77aaa-
77bbbb) as in effect on the date on which this Indenture is qualified under the
TIA.
"Telecommunications Assets" means, with respect to any Person, any
asset that is utilized by such Person, directly or indirectly, for the design,
development, construction, installation, integration, operation, management or
provision of wireless telecommunications equipment, inventory, technology,
systems and/or services. Telecommunications Assets shall include stock, joint
venture or partnership interests of
26
an entity where a majority of the assets of the entity consist of
Telecommunications Assets.
"Total Invested Capital" means at any time of determination, the sum
of, without duplication, (i) the total amount of equity contributed to the
Company or any Restricted Subsidiary as of the Closing Date (being $80.0 million
minus fees and expenses payable on the sale of $50.0 million of Series A-1
Preferred Stock to the Preferred Stock Investment Group concurrent with the
issuance of the Notes), plus (ii) the sum of (x) the aggregate net cash proceeds
received by the Company from capital contributions or any other 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,
and (y) in the case of any consolidation or merger of the Company with or into
another Sprint PCS Affiliate, the aggregate net cash proceeds received by such
Sprint PCS Affiliate from capital contributions or any other 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))
through and including the date of consummation of any such consolidation or
merger, other than to a Subsidiary of such other Sprint PCS Affiliate, plus
(iii) the aggregate net repayment of any Investment made after the Issue Date
and constituting a Restricted Payment in an amount equal to the lesser of (a)
the return of capital with respect to such Investment and (b) the initial amount
of such Investment, in either case, less the cost of the disposition of such
Investment, plus (iv) an amount equal to the Consolidated net Investment (as of
the date of determination) the Company and/or any of its Restricted Subsidiaries
has 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 4.20, plus (v) Consolidated Debt, minus
(vi) the sum of (x) the aggregate amount of all Restricted Payments declared or
made on or after the Issue Date and (y) in the case of any consolidation or
merger of the Company with or into another Sprint PCS Affiliate, the aggregate
amount of all payments which, if such other Sprint PCS Affiliate were governed
by the terms of this Indenture, would have constituted Restricted Payments
declared or made by such Sprint PCS Affiliate through and including the date of
consummation of any such consolidation or merger. For purposes of this
definition, the equity contributed or to be contributed in exchange for the
Series A-1 Preferred Stock and Series A-2 Preferred Stock shall be counted as
equity contributions pursuant to clause (i) above.
27
"Trustee" means the party named as such above until a successor
replaces it in accordance with the applicable provisions of this Indenture and
thereafter means the successor serving hereunder.
"Unit Warrants" means warrants to purchase 9.94233 shares of the
Company's common stock, par value $0.01 per share, issued pursuant to the
Warrant Agreement.
"Unrestricted Global Note" means a permanent Global Note in
substantially the form of Exhibit A attached hereto that bears the Global Note
Legend and that has the "Schedule of Exchanges of Interests in the Global Note"
attached thereto, and that is deposited with or on behalf of and registered in
the name of the Depositary, representing a series of Notes that do not bear the
Private Placement Legend.
"Unrestricted Definitive Note" means one or more Definitive Notes that
do not bear and are not required to bear the Private Placement Legend.
"Unrestricted Subsidiary" means any Subsidiary of the Company or a
Guarantor that is designated by the Board of Directors of the Company as an
Unrestricted Subsidiary pursuant to a Board Resolution, but only to the extent
that such Subsidiary (1) has no Indebtedness other than Non-Recourse Debt; (2)
is not party to any agreement, contract, arrangement or understanding with the
Company or any Restricted Subsidiary of the Company unless the terms of any such
agreement, contract, arrangement or understanding are no less favorable to the
Company or such Restricted Subsidiary than those that might be obtained at the
time from Persons who are not Affiliates of the Company; (3) is a Person with
respect to which neither the Company nor any of its Restricted Subsidiaries has
any direct or indirect obligation (a) to subscribe for additional Equity
Interests or (b) to maintain or preserve such Person's financial condition or to
cause such Person to achieve any specified levels of operating results; (4) has
not guaranteed or otherwise directly or indirectly provided credit support for
any Indebtedness of the Company or any of its Restricted Subsidiaries; and (5)
has at least one director on its Board of Directors that is not a director or
executive officer of the Company or any of its Restricted Subsidiaries and has
at least one executive officer that is not a director or executive officer of
the Company or any of its Restricted Subsidiaries. Any designation of a
Subsidiary of the Company or a Guarantor as an Unrestricted Subsidiary shall be
evidenced to the Trustee by filing with the Trustee a certified copy of the
Board Resolution making such designation and an Officers' Certificate certifying
that such designation complied with the preceding conditions and
28
was permitted by Section 4.07. If, at any time, any Unrestricted Subsidiary
would fail to meet the preceding requirements as an Unrestricted Subsidiary, it
shall thereafter cease to be an Unrestricted Subsidiary for purposes of this
Indenture and any Indebtedness of such Subsidiary shall be deemed to be incurred
by a Restricted Subsidiary of the Company as of such date and, if such
Indebtedness is not permitted to be incurred as of such date under Section 4.09,
the Company shall be in default of such covenant. The Company's Board of
Directors may at any time designate any Unrestricted Subsidiary to be a
Restricted Subsidiary; provided that such designation shall be deemed to be an
incurrence of Indebtedness by a Restricted Subsidiary of the Company of any
outstanding Indebtedness of such Unrestricted Subsidiary and such designation
shall only be permitted if (1) such Indebtedness is permitted under Section 4.09
calculated on a pro forma basis as if such designation had occurred at the
beginning of the four-quarter reference period; and (2) no Default or Event of
Default would be in existence following such designation.
"U.S. Person" means a U.S. person as defined in Rule 902(o) under the
Securities Act.
"Voting Stock" of any Person as of any date means the Capital Stock of
such Person that is at the time entitled to vote in the election of the Board of
Directors or other governing body of such Person.
"Warrant Agreement" means the Warrant Agreement, dated as of July 12,
2000, by and between the Company and ChaseMellon Shareholder Services, L.L.C.,
in its capacity as warrant agent, relating to the Unit Warrants.
"Weighted Average Life to Maturity" means, when applied to any
Indebtedness at any date, the number of years obtained by dividing (1) the sum
of the products obtained by multiplying (a) the amount of each then remaining
installment, sinking fund, serial maturity or other required payments of
principal, including payment at final maturity, in respect thereof, by (b) the
number of years, calculated to the nearest one-twelfth, that will elapse between
such date and the making of such payment; by (2) the then outstanding principal
amount of such Indebtedness.
"Wholly-Owned Restricted Subsidiary" of any Person means a Restricted
Subsidiary of such Person all of the outstanding Capital Stock or other
ownership interests of which, other than directors' qualifying shares, shall at
the time be owned by such Person or by one or more Wholly-Owned Restricted
Subsidiaries of such Person and one or more Wholly-Owned Restricted Subsidiaries
of such Person.
29
"Wholly Owned Subsidiary" of any Person means a Subsidiary of such
Person all of the outstanding Capital Stock or other ownership interests of
which, other than directors' qualifying shares, shall at the time be owned by
such Person or by one or more Wholly Owned Subsidiaries of such Person.
Section 1.02 Other Definitions.
-----------------
Defined in
Term Section
---- -------
"Affiliate Transaction"........................ 4.11
"Asset Sale Offer"............................. 4.10
"Authentication Order"......................... 2.02
"Change of Control Offer"...................... 4.14
"Change of Control Payment".................... 4.14
"Change of Control Payment Date"............... 4.14
"Covenant Defeasance".......................... 8.03
"DTC".......................................... 2.03
"Event of Default"............................. 6.01
"Excess Proceeds".............................. 4.10
"Legal Defeasance"............................. 8.02
"Offer Amount"................................. 3.09
"Offer Period"................................. 3.09
"Payment Blockage Period"...................... 11.03
"Payment Default".............................. 6.01
"Permitted Indebtedness"....................... 4.09
"Purchase Date"................................ 3.09
"Registrar".................................... 2.03
"Regulation S Global Note Legend".............. 2.06
"Representative"............................... 11.03
"Repurchase Offer"............................. 3.09
"Restricted Payments".......................... 4.07
"Surviving Entity"............................. 5.01
Section 1.03 Incorporation by Reference of Trust Indenture Act.
-------------------------------------------------
(2) Whenever this Indenture refers to a provision of the
TIA, the provision is incorporated by reference in and made a part of this
Indenture.
30
(b) The following TIA terms used in this Indenture have the
following meanings:
"indenture securities" means the Notes;
"indenture security Holder" means a Holder of a Note;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means
the Trustee; and
"obligor" on the Notes means the Company and any
successor obligor upon the Notes.
(c) All other terms used in this Indenture that are defined
by the TIA, defined by TIA reference to another statute or defined by SEC rule
under the TIA have the meanings so assigned to them.
Section 1.04 Rules of Construction.
---------------------
(a) 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 GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and
in the plural include the singular;
(5) "including" means "including without
limitation";
31
(6) provisions apply to successive events and
transactions; and
(7) references to sections of or rules under the
Securities Act shall be deemed to include substitute, replacement or
successor sections or rules adopted by the SEC from time to time.
ARTICLE II
THE NOTES
---------
Section 2.01 Form and Dating.
---------------
(a) General. The Notes and the Trustee's certificate of
authentication shall be substantially in the form of Exhibit A hereto. The
Notes may have notations, legends or endorsements required by law, stock
exchange rule or usage. Each Note shall be dated the date of its authentication.
The Notes shall be in denominations of $1,000 and integral multiples thereof.
The terms and provisions contained in the Notes shall constitute, and are hereby
expressly made, a part of this Indenture and the Company and the Trustee, by
their execution and delivery of this Indenture, expressly agree to such terms
and provisions and to be bound thereby. However, to the extent any provision of
any Note conflicts with the express provisions of this Indenture, the provisions
of this Indenture shall govern and be controlling.
(b) Form of Notes. Notes issued in global form shall be
substantially in the form of Exhibits A attached hereto (including the Global
Note Legend thereon and the "Schedule of Exchanges of Interests in the Global
Note" attached thereto). Notes issued in definitive form shall be substantially
in the form of Exhibit A attached hereto (but without the Global Note Legend
thereon and without the "Schedule of Exchanges of Interests in the Global Note"
attached thereto). Each Global Note shall represent such portion of the
outstanding Notes as shall be specified therein and each shall provide that it
shall represent the aggregate principal amount of outstanding Notes from time to
time endorsed thereon and that the aggregate principal amount of outstanding
Notes represented thereby may from time to time be reduced or increased, as
appropriate, to reflect exchanges and redemptions. Any endorsement of a Global
Note to reflect the amount of any increase or decrease in the aggregate
principal amount of outstanding Notes represented thereby shall be made by the
Trustee or the
32
Custodian, at the direction of the Trustee, in accordance with instructions
given by the Holder thereof as required by Section 2.06 hereof.
(c) Euroclear and Cedel Procedures Applicable. The
provisions of the "Operating Procedures of the Euroclear System" and "Terms and
Conditions Governing Use of Euroclear" and the "General Terms and Conditions of
Cedel Bank" and "Customer Handbook" of Cedel Bank shall be applicable to
transfers of beneficial interests in Global Notes that are held by Participants
through Euroclear or Cedel Bank.
Section 2.02 Execution and Authentication.
----------------------------
(a) One Officer shall sign the Notes for the Company by
manual or facsimile signature. The Company's seal may be reproduced on the Notes
and may be in facsimile form.
(b) If an Officer whose signature is on a Note no longer
holds that office at the time a Note is authenticated, the Note shall
nevertheless be valid.
(c) A Note shall not be valid until authenticated by the
manual signature of the Trustee. The signature shall be conclusive evidence that
the Note has been authenticated under this Indenture.
(d) The Trustee shall, upon a written order of the Company
signed by at least one Officer (an "Authentication Order"), authenticate Notes
for original issue up to the aggregate principal amount stated in paragraph 4 of
the Notes. The aggregate principal amount of Notes outstanding at any time may
not exceed such amount except as provided in Section 2.07 hereof.
(e) The Trustee may appoint an authenticating agent
acceptable to the Company to authenticate Notes. An authenticating agent may
authenticate Notes whenever the Trustee may do so. Each reference in this
Indenture to authentication by the Trustee includes authentication by such
agent. An authenticating agent has the same rights as an Agent to deal with
Holders or an Affiliate of the Company.
Section 2.03 Registrar and Paying Agent.
--------------------------
33
(a) The Company shall maintain an office or agency where
Notes may be presented for registration of transfer or for exchange
("Registrar") and an office or agency where Notes may be presented for payment.
The Registrar shall keep a register of the Notes and of their transfer and
exchange. The Company may appoint one or more co-registrars and one or more
additional paying agents. The term "Registrar" includes any co-registrar and the
term "Paying Agent" includes any additional paying agent. The Company may change
any Paying Agent or Registrar without notice to any Holder. The Company shall
notify the Trustee in writing of the name and address of any Agent not a party
to this Indenture. If the Company fails to appoint or maintain another entity as
Registrar or Paying Agent, the Trustee shall act as such. The Company or any of
its Subsidiaries may act as Paying Agent or Registrar.
(b) The Company initially appoints The Depository Trust
Company ("DTC") to act as Depositary with respect to the Global Notes.
(c) The Company initially appoints the Trustee to act as
the Registrar and Paying Agent and to act as Note Custodian with respect to the
Global Notes.
Section 2.04 Paying Agent to Hold Money in Trust.
-----------------------------------
The Company shall require each Paying Agent other than the
Trustee to agree in writing that the Paying Agent shall hold in trust for the
benefit of Holders or the Trustee all money held by the Paying Agent for the
payment of principal, premium or Liquidated Damages, if any, or interest on the
Notes, and shall notify the Trustee of any default by the Company in making any
such payment. While any such default continues, the Trustee may require a Paying
Agent to pay all money held by it to the Trustee. The Company at any time may
require a Paying Agent to pay all money held by it to the Trustee. Upon payment
over to the Trustee, the Paying Agent (if other than the Company or a
Subsidiary) shall have no further liability for the money. If the Company or a
Subsidiary acts as Paying Agent, it shall segregate and hold in a separate trust
fund for the benefit of the Holders all money held by it as Paying Agent. Upon
any bankruptcy or reorganization proceedings relating to the Company, the
Trustee shall serve as Paying Agent for the Notes.
Section 2.05 Holder 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
all Holders
34
and shall otherwise comply with TIA (S) 312(a). If the Trustee is not the
Registrar, the Company shall furnish to the Trustee at least seven 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 or such shorter time
as the Trustee may allow, as the Trustee may reasonably require of the names and
addresses of the Holders of Notes and the Company shall otherwise comply with
TIA (S) 312(a).
Section 2.06 Transfer and Exchange.
---------------------
(a) Transfer and Exchange of Global Notes. A Global Note
may not be transferred as a whole except by the Depositary to a nominee of the
Depositary, by a nominee of the Depositary to the Depositary or to another
nominee of the Depositary, or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary. All Global Notes
shall be exchanged by the Company for Definitive Notes if (i) the Company
delivers to the Trustee notice from the Depositary that it is unwilling or
unable to continue to act as Depositary or that it is no longer a clearing
agency registered under the Exchange Act and, in either case, a successor
Depositary is not appointed by the Company within 90 days after the date of such
notice from the Depositary or (ii) the Company in its sole discretion determines
that the Global Notes (in whole but not in part) should be exchanged for
Definitive Notes and delivers a written notice to such effect to the Trustee.
Upon the occurrence of either of the preceding events in (i) or (ii) above,
Definitive Notes shall be issued in such names as the Depositary shall instruct
the Trustee. Global Notes also may be exchanged or replaced, in whole or in
part, as provided in Sections 2.07 and 2.10 hereof. Every Note authenticated and
delivered in exchange for, or in lieu of, a Global Note or any portion thereof,
pursuant to this Section 2.06 or Section 2.07 or 2.10 hereof, shall be
authenticated and delivered in the form of, and shall be, a Global Note. A
Global Note may not be exchanged for another Note other than as provided in this
Section 2.06(a), although beneficial interests in a Global Note may be
transferred and exchanged as provided in Section 2.06(b), (c) or (d) hereof.
(b) Transfer and Exchange of Beneficial Interests in the
Global Notes. The transfer and exchange of beneficial interests in the Global
Notes shall be effected through the Depositary, in accordance with the
provisions of this Indenture and the Applicable Procedures. Beneficial interests
in the Restricted Global Notes shall be subject to restrictions on transfer
comparable to those set forth herein to the extent required by the Securities
Act. Transfers of beneficial interests in the Global Notes also shall require
compliance with either subparagraph (i) or (ii) below, as applicable, as well as
one or more of the other following subparagraphs, as applicable:
35
(i) Transfer of Beneficial Interests in the Same
Global Note. Beneficial interests in any Restricted Global Note may be
transferred to Persons who take delivery thereof in the form of a
beneficial interest in the same Restricted Global Note in accordance with
the transfer restrictions set forth in the Private Placement Legend;
provided, however, that prior to the expiration of the Restricted Period,
transfers of beneficial interests in the Regulation S Global Note may not
be made to a U.S. Person or for the account or benefit of a U.S. Person
(other than the Initial Purchasers). Beneficial interests in any
Unrestricted Global Note may be transferred to Persons who take delivery
thereof in the form of a beneficial interest in an Unrestricted Global
Note. No written orders or instructions shall be required to be delivered
to the Registrar to effect the transfers described in this Section
2.06(b)(i).
(ii) All Other Transfers and Exchanges of Beneficial
Interests in Global Notes. In connection with all transfers and exchanges
of beneficial interests that are not subject to Section 2.06(b)(i) above,
the transferor of such beneficial interest must deliver to the Registrar
either (A) (1) a written order from a Participant or an Indirect
Participant given to the Depositary in accordance with the Applicable
Procedures directing the Depositary to credit or cause to be credited a
beneficial interest in another Global Note in an amount equal to the
beneficial interest to be transferred or exchanged and (2) instructions
given in accordance with the Applicable Procedures containing information
regarding the Participant account to be credited with such increase or (B)
(1) a written order from a Participant or an Indirect Participant given to
the Depositary in accordance with the Applicable Procedures directing the
Depositary to cause to be issued a Definitive Note in an amount equal to
the beneficial interest to be transferred or exchanged and (2) instructions
given by the Depositary to the Registrar containing information regarding
the Person in whose name such Definitive Note shall be registered to effect
the transfer or exchange referred to in (1) above. Upon consummation of an
Exchange Offer by the Company in accordance with Section 2.06(f) hereof,
the requirements of this Section 2.06(b)(ii) shall be deemed to have been
satisfied upon receipt by the Registrar of the instructions contained in
the Letter of Transmittal delivered by the Holder of such beneficial
interests
36
in the Restricted Global Notes. Upon satisfaction of all of the
requirements for transfer or exchange of beneficial interests in Global
Notes contained in this Indenture and the Notes or otherwise applicable
under the Securities Act, the Trustee shall adjust the principal amount of
the relevant Global Note(s) pursuant to Section 2.06(h) hereof.
(iii) Transfer of Beneficial Interests to Another
Restricted Global Note. A beneficial interest in any Restricted Global Note
may be transferred to a Person who takes delivery thereof in the form of a
beneficial interest in another Restricted Global Note if the transfer
complies with the requirements of Section 2.06(b)(ii) above and the
Registrar receives the following:
(A) if the transferee shall take
delivery in the form of a beneficial interest in the 144A
Global Note, then the transferor must deliver a certificate
in the form of Exhibit B hereto, including the
certifications in item (1) thereof; and
(B) if the transferee shall take
delivery in the form of a beneficial interest in the
Regulation S Global Note, then the transferor must deliver a
certificate in the form of Exhibit B hereto, including the
certifications in item (2) thereof; and
(C) if the transferee shall take
delivery in the form of a beneficial interest in the IAI
Global Note, then the transferor must deliver a certificate
in the form of Exhibit B hereto, including the
certifications in item (3) thereof.
(iv) Transfer and Exchange of Beneficial Interests in
a Restricted Global Note for Beneficial Interests in the Unrestricted
Global Note. A beneficial interest in any Restricted Global Note may be
exchanged by any holder thereof for a beneficial interest in an
Unrestricted Global Note or transferred to a Person who takes delivery
thereof in the form of a beneficial interest in an Unrestricted Global Note
if the exchange or transfer complies with the requirements of Section
2.06(b)(ii) above and:
37
(A) such exchange or transfer is
effected pursuant to the Exchange Offer in accordance with
the Registration Rights Agreement and the holder of the
beneficial interest to be transferred, in the case of an
exchange, or the transferee, in the case of a transfer,
certifies in the applicable Letter of Transmittal that it is
not (1) a broker-dealer, (2) a Person participating in the
distribution of the Exchange Notes or (3) a Person who is an
affiliate (as defined in Rule 144) of the Company;
(B) such transfer is effected
pursuant to the Shelf Registration Statement in accordance
with the Registration Rights Agreement;
(C) such transfer is effected by a
Participating Broker-Dealer pursuant to the Exchange Offer
Registration Statement in accordance with the Registration
Rights Agreement; or
(D) the Registrar receives the
following:
(1) if the holder of such beneficial
interest in a Restricted Global Note proposes to exchange
such beneficial interest for a beneficial interest in an
Unrestricted Global Note, a certificate from such holder in
the form of Exhibit C hereto, including the certifications
in item (1)(a) thereof; or
(2) if the holder of such beneficial
interest in a Restricted Global Note proposes to transfer
such beneficial interest to a Person who shall take delivery
thereof in the form of a beneficial interest in an
Unrestricted Global Note, a certificate from such holder in
the form of Exhibit B hereto, including the certifications
in item (4) thereof;
38
and, in each such case set forth in this subparagraph (D),
if the Registrar or the Company so requests or if the
Applicable Procedures so require, an Opinion of Counsel in
form reasonably acceptable to the Registrar or the Company,
if applicable 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 the Private
Placement Legend are no longer required in order to maintain
compliance with the Securities Act.
If any such transfer is effected pursuant to subparagraph (B) or (D)
above at a time when an Unrestricted Global Note has not yet been issued, the
Company shall issue and, upon receipt of an Authentication Order in accordance
with Section 2.02 hereof, the Trustee shall authenticate one or more
Unrestricted Global Notes in an aggregate principal amount equal to the
aggregate principal amount of beneficial interests transferred pursuant to
subparagraph (B) or (D) above.
Beneficial interests in an Unrestricted Global Note cannot be
exchanged for, or transferred to Persons who take delivery thereof in the form
of, a beneficial interest in a Restricted Global Note.
(c) Transfer or Exchange of Beneficial Interests for Definitive
Notes.
(i) Beneficial Interests in Restricted Global Notes
to Restricted Definitive Notes. Restricted Global Notes and beneficial
interests therein shall be exchangeable for Definitive Notes if (i)
the Depositary (x) notifies the Company that it is unwilling or unable
to continue as depositary for the Restricted Global Notes and the
Company thereupon fails to appoint a successor depositary or (y) has
ceased to be a clearing agency registered under the Exchange Act and
the Company fails to appoint a successor, (ii) the Company, at its
option, notifies the Trustee in writing that it elects to cause the
issuance of the Definitive Notes or (iii) there shall have occurred
and be continuing a Default with respect to the Notes. In all cases,
Definitive Notes delivered in exchange for any Restricted Global Note
or beneficial interests therein shall be registered in the names, and
issued in any approved denominations, requested by or on behalf of the
Depositary (in accordance with the Applicable Procedures).
39
In such event, the Trustee shall cause the Restricted Global
Notes to be canceled accordingly pursuant to Section 2.11 hereof, and
the Company shall execute and upon receipt of an Authentication Order
the Trustee shall authenticate and deliver to the Person designated in
the instructions a Definitive Note in the appropriate principal
amount. Any Definitive Note issued in exchange for a beneficial
interest in a Restricted Global Note pursuant to this Section 2.06(c)
shall be registered in such name or names and in such authorized
denomination or denominations as the holder of such beneficial
interest shall instruct the Registrar through instructions from the
Depositary and the Participant or Indirect Participant. The Trustee
shall deliver such Definitive Notes to the Persons in whose names such
Notes are so registered. Any Definitive Note issued in exchange for a
beneficial interest in a Restricted Global Note pursuant to this
Section 2.06(c)(i) shall bear the Private Placement Legend and shall
be subject to all restrictions on transfer contained therein.
(ii) Beneficial Interests in Restricted Global Notes
to Unrestricted Definitive Notes. A holder of a beneficial interest in
a Restricted Global Note may exchange such beneficial interest for an
Unrestricted Definitive Note or may transfer such beneficial interest
to a Person who takes delivery thereof in the form of an Unrestricted
Definitive Note only if:
(A) such exchange or transfer is effected
pursuant to the Exchange Offer in accordance with the
Registration Rights Agreement and the holder of such
beneficial interest, in the case of an exchange, or the
transferee, in the case of a transfer, certifies in the
Letter of Transmittal that it is not (1) a broker-dealer,
(2) a Person participating in the distribution of the
Exchange Notes or (3) a Person who is an affiliate (as
defined in Rule 144) of the Company;
(B) such transfer is effected pursuant to
the Shelf Registration Statement in accordance with the
Registration Rights Agreement;
40
(C) such transfer is effected by a Broker-
Dealer pursuant to the Exchange Offer Registration Statement
in accordance with the Registration Rights Agreement; or
(D) the Registrar receives the following:
(1) if the holder of such beneficial
interest in a Restricted Global Note proposes to exchange
such beneficial interest for a Definitive Note that does not
bear the Private Placement Legend, a certificate from such
holder in the form of Exhibit C hereto, including the
certifications in item (1)(b) thereof; or
(2) if the holder of such beneficial
interest in a Restricted Global Note proposes to transfer
such beneficial interest to a Person who shall take delivery
thereof in the form of a Definitive Note that does not bear
the Private Placement Legend, a certificate from such holder
in the form of Exhibit B hereto, including the
certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D),
if the Registrar or the Company so requests or if the
Applicable Procedures so require, an Opinion of Counsel in
form reasonably acceptable to the Registrar or the Company,
if applicable 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 the Private
Placement Legend are no longer required in order to maintain
compliance with the Securities Act.
(iii) Beneficial Interests in Unrestricted Global
Notes to Unrestricted Definitive Notes. Unrestricted Global Notes and
beneficial interests therein shall be exchangeable for Definitive
Notes if (i) the Depositary (x) notifies the Company that it is
unwilling or unable to continue as depositary for the Unrestricted
Global Notes and the
41
Company thereupon fails to appoint a successor depositary or (y) has
ceased to be a clearing agency registered under the Exchange Act and
the Company fails to appoint a successor, (ii) the Company, at its
option, notifies the Trustee in writing that it elects to cause the
issuance of the Definitive Notes or (iii) there shall have occurred
and be continuing a Default with respect to the Notes. In all cases,
Definitive Notes delivered in exchange for any Unrestricted Global
Note or beneficial interests therein shall be registered in the names,
and issued in any approved denominations, requested by or on behalf of
the depositary (in accordance with the Applicable Procedures). In such
event, the Trustee shall cause the Unrestricted Global Notes to be
canceled accordingly pursuant to Section 2.11 hereof, and the Company
shall execute and the Trustee shall authenticate and deliver to the
Person designated in the instructions a Definitive Note in the
appropriate principal amount. Any Definitive Note issued in exchange
for a beneficial interest pursuant to this Section 2.06(c)(iii) shall
be registered in such name or names and in such authorized
denomination or denominations as the holder of such beneficial
interest shall instruct the Registrar through instructions from the
Depositary and the Participant or Indirect Participant. The Trustee
shall deliver such Definitive Notes to the Persons in whose names such
Notes are so registered. Any Definitive Note issued in exchange for a
beneficial interest pursuant to this Section 2.06(c)(iii) shall not
bear the Private Placement Legend.
(d) Transfer and Exchange of Definitive Notes for Beneficial
Interests.
(i) Restricted Definitive Notes to Beneficial
Interests in Restricted Global Notes. If any Holder of a Restricted
Definitive Note proposes to exchange such Note for a beneficial
interest in a Restricted Global Note or to transfer such Restricted
Definitive Notes to a Person who takes delivery thereof in the form of
a beneficial interest in a Restricted Global Note, then, upon receipt
by the Registrar of the following documentation:
(A) if the Holder of such Restricted
Definitive Note proposes to exchange such Note for a
beneficial interest in a Restricted Global Note,
42
a certificate from such Holder in the form of Exhibit C
hereto, including the certifications in item (2)(b) thereof;
(B) if such Restricted Definitive Note is
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;
(C) if such Restricted Definitive Note is
being transferred to a Non-U.S. Person in an offshore
transaction in accordance with Rule 903 or Rule 904 under
the Securities Act, a certificate to the effect set forth in
Exhibit B hereto, including the certifications in item (2)
thereof;
(D) if such Restricted Definitive Note is
being transferred pursuant to an exemption from the
registration requirements of the Securities Act in
accordance with Rule 144 under the Securities Act, a
certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (3)(a) thereof;
(E) if such Restricted Definitive Note is
being transferred to an Institutional Accredited Investor in
reliance on an exemption from the registration requirements
of the Securities Act other than those listed in
subparagraphs (B) through (D) above, a certificate to the
effect set forth in Exhibit B hereto, including the
certifications, certificates and Opinion of Counsel required
by item (3) thereof, if applicable;
(F) if such Restricted Definitive Note is
being transferred to the Company or any of its Subsidiaries,
a certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (3)(b) thereof; or
43
(G) if such Restricted Definitive
Note is being transferred pursuant to an effective
registration statement under the Securities Act, a
certificate to the effect set forth in Exhibit B
hereto, including the certifications in item (3)(c)
thereof,
the Trustee shall cancel the Restricted Definitive Note, increase or cause to be
increased the aggregate principal amount of, in the case of clause (A) above,
the appropriate Restricted Global Note, in the case of clause (B) above, the
144A Global Note, in the case of clause (C) above, the Regulation S Global Note,
and in all other cases, the IAI Global Note.
(ii) Restricted Definitive Notes to Beneficial
Interests in Unrestricted Global Notes. A Holder of a Restricted
Definitive Note may exchange such Note for a beneficial interest in
an Unrestricted Global Note or transfer such Restricted Definitive
Note to a Person who takes delivery thereof in the form of a
beneficial interest in an Unrestricted Global Note only if:
(A) such exchange or transfer is
effected pursuant to the Exchange Offer in accordance
with the Registration Rights Agreement and the Holder,
in the case of an exchange, or the transferee, in the
case of a transfer, certifies in the applicable Letter
of Transmittal that it is not (1) a broker-dealer, (2)
a Person participating in the distribution of the
Exchange Notes or (3) a Person who is an affiliate (as
defined in Rule 144) of the Company;
(B) such transfer is effected
pursuant to the Shelf Registration in accordance with
the Registration Rights Agreement;
(C) such transfer is effected by a
Broker-Dealer pursuant to the Exchange Offer
Registration Statement in accordance with the
Registration Rights Agreement; or
44
(D) the Registrar receives the following:
(1) if the Holder of such Definitive Notes
proposes to exchange such Notes for a beneficial interest in
the Unrestricted Global Note, a certificate from such Holder
in the form of Exhibit C hereto, including the
certifications in item (1)(c) thereof; or
(2) if the Holder of such Definitive Notes
proposes to transfer such Notes to a Person who shall take
delivery thereof in the form of a beneficial interest in the
Unrestricted Global Note, a certificate from such Holder in
the form of Exhibit B hereto, including the certifications
in item (4) thereof;
and, in each such case set forth in this subparagraph (D), if the Registrar so
requests or if the Applicable Procedures so require, an Opinion of Counsel in
form reasonably acceptable to the Registrar 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 the Private Placement Legend are no longer
required in order to maintain compliance with the Securities Act.
Upon satisfaction of the conditions of any of the subparagraphs in
this Section 2.06(d)(ii), the Trustee shall cancel the Definitive Notes and
increase or cause to be increased the aggregate principal amount of the
Unrestricted Global Note.
(iii) Unrestricted Definitive Notes to Beneficial
Interests in Unrestricted Global Notes. A Holder of an Unrestricted
Definitive Note may exchange such Note for a beneficial interest in an
Unrestricted Global Note or transfer such Definitive Notes to a Person
who takes delivery thereof in the form of a beneficial interest in an
Unrestricted Global Note at any time. Upon receipt of a request for
such an exchange or transfer, the Trustee shall cancel the applicable
Unrestricted Definitive Note and increase or cause to be increased the
aggregate principal amount of one of the Unrestricted Global Notes.
45
If any such exchange or transfer from a Definitive Note to a
beneficial interest is effected pursuant to subparagraphs (ii)(B), (ii)(D) or
(iii) above at a time when an Unrestricted Global Note has not yet been issued,
the Company shall issue and, upon receipt of an Authentication Order in
accordance with Section 2.02 hereof, the Trustee shall authenticate one or more
Unrestricted Global Notes in an aggregate principal amount equal to the
principal amount of Definitive Notes so transferred.
(e) Transfer and Exchange of Definitive Notes for Definitive
Notes. Upon request by a Holder of Definitive Notes and such Holder's compliance
with the provisions of this Section 2.06(e), the Registrar shall register the
transfer or exchange of Definitive Notes. Prior to such registration of transfer
or exchange, the requesting Holder shall present or surrender to the Registrar
the Definitive Notes duly endorsed or accompanied by a written instruction of
transfer in form satisfactory to the Registrar duly executed by such Holder or
by his attorney, duly authorized in writing. In addition, the requesting Holder
shall provide any additional certifications, documents and information, as
applicable, required pursuant to the following provisions of this Section
2.06(e).
(i) Restricted Definitive Notes to Restricted
Definitive Notes. Any Restricted Definitive Note may be transferred to
and registered in the name of Persons who take delivery thereof in the
form of a Restricted Definitive Note if the Registrar receives the
following:
(A) if the transfer shall be made pursuant
to Rule 144A under the Securities Act, then the transferor
must deliver a certificate in the form of Exhibit B hereto,
including the certifications in item (1) thereof; and
(B) if the transfer shall be made pursuant
to Rule 903 or Rule 904, then the transferor must deliver a
certificate in the form of Exhibit B hereto, including the
certifications in item (2) thereof; and
(C) if the transfer shall be made pursuant
to any other exemption from the registration requirements of
the Securities Act, then the
46
transferor must deliver a certificate in 9 the form of
Exhibit B hereto, including the certifications, certificates
and Opinion of Counsel required by item (3) thereof, if
applicable.
(ii) Restricted Definitive Notes to Unrestricted
Definitive Notes. Any Restricted Definitive Note may be exchanged by
the Holder thereof for an Unrestricted Definitive Note or transferred
to a Person or Persons who take delivery thereof in the form of an
Unrestricted Definitive Note if:
(A) such exchange or transfer is effected
pursuant to the Exchange Offer in accordance with the
Registration Rights Agreement and the Holder, in the case of
an exchange, or the transferee, in the case of a transfer,
certifies in the applicable Letter of Transmittal that it is
not (1) a broker-dealer, (2) a Person participating in the
distribution of the Exchange Notes or (3) a Person who is an
affiliate (as defined in Rule 144) of the Company;
(B) any such transfer is effected pursuant
to the Shelf Registration Statement in accordance with the
Registration Rights Agreement;
(C) any such transfer is effected by a
Participating Broker-Dealer pursuant to the Exchange Offer
Registration Statement in accordance with the Registration
Rights Agreement; or
(D) the Registrar receives the following:
(1) if the Holder of such Restricted
Definitive Notes proposes to exchange such Notes for an
Unrestricted Definitive Note, a certificate from such Holder
in the form of Exhibit C hereto, including the
certifications in item (1)(d) thereof; or
47
(2) if the Holder of such Restricted
Definitive Notes proposes to transfer such Notes to a Person
who shall take delivery thereof in the form of an
Unrestricted Definitive Note, a certificate from such Holder
in the form of Exhibit B hereto, including the
certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D),
if the Registrar or the Company so requests, an Opinion of
Counsel in form reasonably acceptable to the Registrar and
the Company, if applicable, 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
the Private Placement Legend are no longer required in order
to maintain compliance with the Securities Act.
(i) Unrestricted Definitive Notes to Unrestricted
Definitive Notes. A Holder of Unrestricted Definitive Notes may
transfer such Notes to a Person who takes delivery thereof in the form
of an Unrestricted Definitive Note. Upon receipt of a request to
register such a transfer, the Registrar shall register the
Unrestricted Definitive Notes pursuant to the instructions from the
Holder thereof.
(f) Exchange Offer. Upon the occurrence of the Exchange Offer
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 (i) one or more Unrestricted Global Notes in an
aggregate principal amount equal to the principal amount of the beneficial
interests in the Restricted Global Notes tendered for acceptance by Persons that
certify in the applicable Letters of Transmittal that (x) they are not broker-
dealers, (y) they are not participating in a distribution of the Exchange Notes
and (z) they are not affiliates (as defined in Rule 144) of the Company, and
accepted for exchange in the Exchange Offer and (ii) Definitive Notes in an
aggregate principal amount equal to the principal amount of the Restricted
Definitive Notes accepted for exchange in the Exchange Offer. Concurrently with
the issuance of such Notes, the Trustee shall cause the aggregate principal
amount of the applicable Restricted Global Notes to be reduced accordingly, and
the Company shall execute and the Trustee shall authenticate and deliver to the
Persons designated by
48
the Holders of Definitive Notes so accepted Definitive Notes in the appropriate
principal amount.
(g) Legends. The following legends shall appear on the face of
all Global Notes and Definitive Notes issued under this Indenture unless
specifically stated otherwise in the applicable provisions of this Indenture.
(i) Private Placement Legend.
(A) Except as permitted by subparagraph
(B) below, each Global Note and each Definitive Note (and
all Notes issued in exchange therefor or substitution
thereof) shall bear the legend in substantially the
following form
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT
OF 1933, AS AMENDED (THE "ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED, SOLD,
PLEDGED OR OTHERWISE TRANSFERRED WITHIN THE UNITED STATES OR TO, OR FOR THE
ACCOUNT OR BENEFIT OF, U.S. PERSONS, EXCEPT AS SET FORTH IN THE NEXT SENTENCE.
BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE HOLDER:
(1) REPRESENTS THAT (i) IT IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE
ACT)(A "QIB"), (ii) IT HAS ACQUIRED THIS SECURITY IN AN
OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER
THE ACT OR (iii) IT IS AN INSTITUTIONAL "ACCREDITED
INVESTOR" (AS DEFINED IN RULE 501(A)(1), (2), (3) OR (7) OF
REGULATION D UNDER THE ACT (AN "IAI")),
(2) AGREES THAT IT WILL NOT RESELL OR
OTHERWISE TRANSFER THIS SECURITY EXCEPT (i) TO THE COMPANY
OR ANY OF ITS SUBSIDIARIES, (ii) TO A PERSON WHOM THE SELLER
REASONABLY BELIEVES IS A QIB PURCHASING FOR ITS OWN ACCOUNT
OR
49
FOR THE ACCOUNT OF A QIB IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (iii) IN AN OFFSHORE TRANSACTION
MEETING THE REQUIREMENTS OF RULE 903 OR 904 OF THE ACT, (iv)
IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144 UNDER
THE ACT, (v) TO AN IAI THAT, PRIOR TO SUCH TRANSFER,
FURNISHES THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN
REPRESENTATIONS AND AGREEMENTS RELATING TO THE TRANSFER OF
THIS SECURITY (THE FORM OF WHICH CAN BE OBTAINED FROM THE
TRUSTEE) AND, IF SUCH TRANSFER IS IN RESPECT OF AN AGGREGATE
PRINCIPAL AMOUNT OF NOTES LESS THAN $250,000, AN OPINION OF
COUNSEL ACCEPTABLE TO THE COMPANY THAT SUCH TRANSFER IS IN
COMPLIANCE WITH THE ACT, (vi) IN ACCORDANCE WITH ANOTHER
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE ACT (AND
BASED UPON AN OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY)
OR (vii) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
AND, IN EACH CASE, IN ACCORDANCE WITH THE APPLICABLE
SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY
OTHER APPLICABLE JURISDICTION AND
(3) AGREES THAT IT WILL DELIVER TO EACH
PERSON TO WHOM THIS SECURITY OR AN INTEREST HEREIN IS
TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS
LEGEND.
AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION" AND "UNITED STATES"
HAVE THE MEANINGS GIVEN TO THEM BY RULE 902 OF REGULATION S UNDER THE ACT. THE
INDENTURE AND WARRANT AGREEMENT CONTAIN A PROVISION REQUIRING THE TRUSTEE TO
REFUSE
50
TO REGISTER ANY TRANSFER OF THESE SECURITIES IN VIOLATION OF THE FOREGOING."
(B) Notwithstanding the foregoing, any
Global Note or Definitive Note issued pursuant to
subparagraphs (b)(iv), (c)(ii), (c)(iii), (d)(ii),
(d)(iii), (e)(ii) or (f) to this Section 2.06 (and all
Notes issued in exchange therefor or substitution
thereof) shall not bear the Private Placement Legend.
(ii) Global Note Legend. Each Global Note shall bear
a legend in substantially the following form:
"THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE
GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE
BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY
CIRCUMSTANCES EXCEPT THAT (i) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS
MAY BE REQUIRED PURSUANT TO SECTION 2.07 OF THE INDENTURE, (ii) THIS GLOBAL
NOTE MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(a)
OF THE INDENTURE, (iii) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE
FOR CANCELLATION PURSUANT TO SECTION 2.11 OF THE INDENTURE AND (iv) THIS
GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR
WRITTEN CONSENT OF THE COMPANY."
(iii) Separability Legend. Until the Separation Date,
each Global Note shall bear a legend in substantially the following
form (the "Separability Legend"):
"UNTIL THE SEPARATION DATE (AS DEFINED), THIS NOTE HAS BEEN ISSUED AS, AND
MUST BE TRANSFERRED AS, A UNIT TOGETHER WITH THE ASSOCIATED WARRANTS TO
PURCHASE COMMON STOCK OF iPCS, INC. EACH UNIT CONSISTS OF $1,000 PRINCIPAL
AMOUNT OF NOTES AND A WARRANT TO PURCHASE 9.94233 SHARES OF COMMON STOCK OF
iPCS, INC., SUBJECT TO ADJUSTMENT UNDER CERTAIN CIRCUMSTANCES. A COPY OF
THE WARRANT AGREEMENT PURSUANT TO WHICH THE WARRANTS
51
HAVE BEEN ISSUED IS AVAILABLE FROM THE COMPANY UPON REQUEST."
(iv) Original Issue Discount Legend. Each Global Note shall
bear a legend in substantially the following form:
"FOR PURPOSES OF SECTION 1273 OF THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED (THE "CODE"), THIS SECURITY HAS ORIGINAL ISSUE DISCOUNT. FOR
PURPOSES OF SECTION 1273 OF THE CODE, THE ISSUE PRICE IS $497.44 AND THE
AMOUNT OF ORIGINAL ISSUE DISCOUNT IS $502.66, IN EACH CASE PER $1,000
PRINCIPAL AMOUNT OF THIS SECURITY. FOR PURPOSES OF SECTION 1275 OF THE
CODE, THE YIELD TO MATURITY COMPOUNDED SEMIANNUALLY IS 15.4%."
(h) Cancellation or Adjustment of Global Notes. At such time as
all beneficial interests in a particular Global Note have been exchanged for
Definitive Notes or a particular Global Note has been redeemed, repurchased or
cancelled in whole and not in part, each such Global Note shall be returned to
or retained and cancelled by the Trustee in accordance with Section 2.11 hereof.
At any time prior to such cancellation, if any beneficial interest in a Global
Note is exchanged for or transferred to a Person who shall take delivery thereof
in the form of a beneficial interest in another Global Note or for Definitive
Notes, the principal amount of Notes represented by such Global Note shall be
reduced accordingly and an endorsement shall be made on such Global Note by the
Trustee or by the Depositary at the direction of the Trustee to reflect such
reduction; and if the beneficial interest is being exchanged for or transferred
to a Person who shall take delivery thereof in the form of a beneficial interest
in another Global Note, such other Global Note shall be increased accordingly
and an endorsement shall be made on such Global Note by the Trustee or by the
Depositary at the direction of the Trustee to reflect such increase.
(i) General Provisions Relating to Transfers and Exchanges.
(i) To permit registrations of transfers and exchanges, the
Company shall execute and the Trustee shall authenticate Global Notes and
Definitive Notes upon the Company's order or at the Registrar's request.
52
(ii) No service charge shall be made to a holder of a
beneficial interest in a Global Note or to a Holder of a Definitive Note
for any registration of transfer or exchange, but the Company may require
payment of a sum sufficient to cover any transfer tax or similar
governmental charge payable in connection therewith (other than any such
transfer taxes or similar governmental charge payable upon exchange or
transfer pursuant to Sections 2.10, 3.06, 3.09, 4.10, 4.14 and 9.05
hereof).
(iii) The Registrar shall not be required to register
the transfer of or exchange any Note selected for redemption in whole or in
part, except the unredeemed portion of any Note being redeemed in part.
(iv) All Global Notes and Definitive Notes issued upon
any registration of transfer or exchange of Global Notes or Definitive
Notes shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Global
Notes or Definitive Notes surrendered upon such registration of transfer or
exchange.
(v) The Company shall not be required (a) to issue,
to register the transfer of or to exchange any Notes during a period
beginning at the opening of business 15 days before the day of any
selection of Notes for redemption under Section 3.02 hereof and ending at
the close of business on the day of selection, (b) to register the transfer
of or to exchange any Note so selected for redemption in whole or in part,
except the unredeemed portion of any Note being redeemed in part or (c) to
register the transfer of or to exchange a Note between a record date and
the next succeeding Interest Payment Date.
(vi) Prior to due presentment for the registration of
a transfer of any Note, the Trustee, any Agent and the Company may deem and
treat the Person in whose name any Note is registered as the absolute owner
of such Note for the purpose of receiving payment of principal of and
interest on such Notes and for all other purposes, and none of the Trustee,
any Agent or the Company shall be affected by notice to the contrary.
53
(vii) The Trustee shall authenticate Global
Notes and Definitive Notes in accordance with the provisions of
Section 2.02 hereof.
(viii) All certifications, certificates and
Opinions of Counsel required to be submitted to the Registrar
pursuant to this Section 2.06 to effect a registration of transfer
or exchange may be submitted by facsimile.
(j) Separation of Notes and Unit Warrants
(i) Prior to the Separation Date, no Notes may
be sold, assigned or otherwise transferred to any Person unless,
simultaneously with such transfer, the Trustee receives confirmation
from the Warrant Agent for the Unit Warrants that the Holder of the
Notes has requested a transfer of the related Unit Warrants to the
same transferee.
(ii) On or after the Separation Date, the Holder
of a Note containing a Separability Legend may surrender such Note
accompanied by a written application to the Trustee, duly executed
by the Holder, for a new Note or Notes not containing a Separability
Legend. Whether or not the Holder obtains a new Note, from and after
the Separation Date, the Separability Legend shall have no further
force and effect.
Section 2.07 Replacement Notes.
-----------------
(a) If any mutilated Note is surrendered to the Trustee or
the Company and the Trustee receives evidence to its satisfaction of the
destruction, loss or theft of any Note, the Company shall issue and the Trustee,
upon receipt of an Authentication Order, shall authenticate a replacement Note
if the Trustee's requirements are met. If required by the Trustee or the
Company, an indemnity bond must be supplied by the Holder that is sufficient in
the judgment of the Trustee and the Company to protect the Company, the Trustee,
any Agent and any authenticating agent from any loss that any of them may suffer
if a Note is replaced. The Company may charge for its expenses in replacing a
Note.
54
(b) Every replacement Note is an additional obligation of
the Company and shall be entitled to all of the benefits of this Indenture
equally and proportionately with all other Notes duly issued hereunder.
Section 2.08 Outstanding Notes.
-----------------
(a) The Notes outstanding at any time are all the Notes
authenticated by the Trustee except for those cancelled by it, those delivered
to it for cancellation, those reductions in the interest in a Global Note
effected by the Trustee in accordance with the provisions hereof, and those
described in this Section 2.08 as not outstanding. Except as set forth in
Section 2.09 hereof, a Note does not cease to be outstanding because the Company
or an Affiliate of the Company holds the Note; however, Notes held by the
Company or a Subsidiary of the Company shall not be deemed to be outstanding for
purposes of Section 3.07(b) hereof.
(b) If a Note is replaced pursuant to Section 2.07 hereof,
it ceases to be outstanding unless the Trustee receives proof satisfactory to it
that the replaced Note is held by a bona fide purchaser. If the principal amount
of any Note is considered paid under Section 4.01 hereof, it ceases to be
outstanding and interest on it ceases to accrue.
(c) If the Paying Agent (other than the Company, a
Subsidiary or an Affiliate of any thereof) holds, on a redemption date or
maturity date, money sufficient to pay Notes payable on that date, then on and
after that date such Notes shall be deemed to be no longer outstanding and shall
cease to accrue interest.
Section 2.09 Treasury Notes.
--------------
In determining whether the Holders of the required principal
amount of Notes have concurred in any direction, waiver or consent, Notes owned
by the Company, or by any Person directly or indirectly controlling or
controlled by or under direct or indirect common control with the Company, shall
be considered as though not outstanding, except that for the purposes of
determining whether the Trustee shall be protected in relying on any such
direction, waiver or consent, only Notes that the Trustee knows are so owned
shall be so disregarded.
55
Section 2.10 Temporary Notes.
---------------
Until certificates representing Notes are ready for delivery, the
Company may prepare and the Trustee, upon receipt of an Authentication Order,
shall authenticate temporary Notes. Temporary Notes shall be substantially in
the form of certificated Notes but may have variations that the Company
considers appropriate for temporary Notes and as shall be reasonably acceptable
to the Trustee. Without unreasonable delay, the Company shall prepare and the
Trustee shall authenticate definitive Notes in exchange for temporary Notes.
Holders of temporary Notes shall be entitled to all of the
benefits of this Indenture.
Section 2.11 Cancellation.
------------
The Company at any time may deliver Notes to the Trustee for
cancellation. The Registrar and Paying Agent shall forward to the Trustee any
Notes surrendered to them for registration of transfer, exchange or payment.
The Trustee upon direction by the Company and no one else shall cancel all Notes
surrendered for registration of transfer, exchange, payment, replacement or
cancellation and shall destroy cancelled Notes (subject to the record retention
requirements of the Exchange Act). Certification of the destruction of all
cancelled Notes shall be delivered to the Company. The Company may not issue
new Notes to replace Notes that it has paid or that have been delivered to the
Trustee for cancellation.
Section 2.12 Defaulted Interest.
------------------
If the Company defaults in a payment of interest on the Notes, it
shall pay the defaulted interest in any lawful manner plus, to the extent
lawful, interest payable on the defaulted interest, to the Persons who are
Holders on a subsequent special record date, in each case at the rate provided
in the Notes and in Section 4.01 hereof. The Company shall notify the Trustee in
writing of the amount of defaulted interest proposed to be paid on each Note and
the date of the proposed payment. The Company shall fix or cause to be fixed
each such special record date and payment date; provided, however, that no such
special record date shall be less than 5 days prior to the related payment date
for such defaulted interest. At least 10 days before the special record date,
the Company (or, upon the written request of the Company, the Trustee in the
name and at the expense of the Company) shall mail or cause to be mailed to
Holders a notice that states the special record date, the related payment date
and the amount of such interest to be paid.
56
Section 2.13 CUSIP Numbers.
-------------
The Company in issuing the Notes may use "CUSIP" numbers (if then
generally in use), and, if so, the Trustee shall use "CUSIP" numbers in notices
of redemption as a convenience to Holders; provided, however, that any such
notice may state that no representation is made as to the correctness of such
numbers either as printed on the Notes or as contained in any notice of a
redemption and that reliance may be placed only on the other identification
numbers printed on the Notes, and any such redemption shall not be affected by
any defect in or omission of such numbers. The Company will promptly notify the
Trustee of any change in the "CUSIP" numbers.
ARTICLE II
REDEMPTION AND PREPAYMENT
-------------------------
Section 3.01 Notices to Trustee.
------------------
If the Company elects to redeem Notes pursuant to the optional
redemption provisions of Section 3.07 hereof, it shall furnish to the Trustee,
at least 30 days but not more than 60 days before a redemption date, an
Officers' Certificate setting forth (i) the clause of this Indenture pursuant to
which the redemption shall occur, (ii) the redemption date, (iii) the principal
amount of Notes to be redeemed and (iv) the redemption price.
Section 3.02 Selection of Notes to Be Redeemed.
---------------------------------
If less than all of the Notes are to be redeemed or purchased in
an offer to purchase at any time, the Trustee shall select the Notes to be
redeemed or purchased among the Holders of the Notes in compliance with the
requirements of the principal national securities exchange, if any, on which the
Notes are listed or, if the Notes are not so listed, on a pro rata basis, by lot
or in accordance with any other method the Trustee considers fair and
appropriate. In the event of partial redemption by lot, the particular Notes to
be redeemed shall be selected, unless otherwise provided herein, not less than
30 nor more than 60 days prior to the redemption date by the Trustee from the
outstanding Notes not previously called for redemption.
The Trustee shall promptly notify the Company in writing of the
Notes selected for redemption and, in the case of any Note selected for partial
redemption, the principal amount thereof to be redeemed. Notes and portions of
Notes selected shall be
57
in amounts of $1,000 or whole multiples of $1,000; except that if all of the
Notes of a Holder are to be redeemed, the entire outstanding amount of Notes
held by such Holder, even if not a multiple of $1,000, shall be redeemed. Except
as provided in the preceding sentence, provisions of this Indenture that apply
to Notes called for redemption also apply to portions of Notes called for
redemption.
Section 3.03 Notice of Redemption.
--------------------
Subject to the provisions of Section 3.09 hereof, at least 30 days
but not more than 60 days before a redemption date, the Company shall mail or
cause to be mailed, by first class mail, a notice of redemption to each Holder
whose Notes are to be redeemed at its registered address.
The notice shall identify the Notes to be redeemed and shall
state:
(a) the redemption date;
(b) the redemption price;
(c) if any Note is being redeemed in part, the portion of the
principal amount of such Note to be redeemed and that, after the redemption date
upon surrender of such Note, a new Note or Notes in principal amount equal to
the unredeemed portion shall be issued upon cancellation of the original Note;
(d) the name and address of the Paying Agent;
(e) that Notes called for redemption must be surrendered to
the Paying Agent to collect the redemption price;
(f) that, unless the Company defaults in making such
redemption payment, interest on Notes called for redemption ceases to accrue on
and after the redemption date;
(g) the paragraph of the Notes or Section of this Indenture
pursuant to which the Notes called for redemption are being redeemed; and
(h) that no representation is made as to the correctness or
accuracy of the CUSIP number, if any, listed in such notice or printed on the
Notes.
58
At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at its expense; provided, however, that the
Company shall have delivered to the Trustee, at least 45 days, or such shorter
period allowed by the Trustee, prior to the redemption date, an Officers'
Certificate requesting that the Trustee give such notice and setting forth the
information to be stated in such notice as provided in the preceding paragraph.
Section 3.04 Effect of Notice of Redemption.
------------------------------
Once notice of redemption is mailed in accordance with Section
3.03 hereof, Notes called for redemption become irrevocably due and payable on
the redemption date at the redemption price. A notice of redemption may not be
conditional.
Section 3.05 Deposit of Redemption Price.
---------------------------
On or one Business Day prior to the redemption date, the Company
shall deposit with the Trustee or with the Paying Agent money sufficient to pay
the redemption price of and accrued interest on all Notes to be redeemed on that
date. The Trustee or the Paying Agent shall promptly return to the Company any
money deposited with the Trustee or the Paying Agent by the Company in excess of
the amounts necessary to pay the redemption price of, and accrued interest on,
all Notes to be redeemed.
If the Company complies with the provisions of the preceding
paragraph, on and after the redemption date, interest shall cease to accrue on
the Notes or the portions of Notes called for redemption. If a Note is redeemed
on or after an interest record date but on or prior to the related interest
payment date, then any accrued and unpaid interest shall be paid to the Person
in whose name such Note was registered at the close of business on such record
date. If any Note called for redemption shall not be so paid upon surrender for
redemption because of the failure of the Company to comply with the preceding
paragraph, interest shall be paid on the unpaid principal from the redemption
date until such principal is paid, and to the extent lawful on any interest not
paid on such unpaid principal, in each case at the rate provided in the Notes
and in Section 4.01 hereof.
Section 3.06 Notes Redeemed in Part.
----------------------
59
Upon surrender of a Note that is redeemed in part, the Company
shall issue and, upon the Company's written request, the Trustee shall
authenticate for the Holder at the expense of the Company a new Note equal in
principal amount to the unredeemed portion of the Note surrendered.
Section 3.07 Optional Redemption.
-------------------
(a) On or after July 15, 2005, the Company may redeem the
Notes at any time, in whole or in part, upon not less than 30 nor more than 60
days' notice, at the redemption prices (expressed as percentages of principal
amount) set forth below, plus accrued and unpaid interest and Liquidated
Damages, if any, thereon to the date fixed for redemption, if redeemed during
the twelve-month period beginning on July 15 of the year indicated below:
Year Percentage
---- ----------
2005 107.000%
2006 104.667%
2007 102.333%
2008 and thereafter 100.000%
(b) Notwithstanding the provisions of clause (a) of this
Section 3.07, prior to July 15, 2003, the Company shall be permitted to redeem
up to 35% of the Accreted Value of the Notes originally issued at a redemption
price of 114% of the Accreted Value thereof, plus accrued and unpaid interest
and Liquidated Damages, if any, thereon to the date fixed for redemption, with
the net cash proceeds of one or more Equity Offerings (excluding the first $70.0
million in cash proceeds received by the Company from the issuance of Equity
Interests after the date of this Indenture); provided, however, that (1) at
least 65% of the Accreted Value of the Notes originally issued remains
outstanding immediately after the occurrence of the redemption, excluding Notes
held by the Company or any of its Subsidiaries; and (2) each redemption occurs
within 90 days after the date of the closing of such an offering.
(c) Any redemption pursuant to this Section 3.07 shall be
made pursuant to the provisions of Section 3.01 through 3.06 hereof.
Section 3.08 Mandatory Redemption.
--------------------
The Company shall not be required to make mandatory redemption or
sinking fund payments with respect to the Notes.
60
Section 3.09 Offer to Purchase.
-----------------
In the event that, pursuant to Section 4.10 or 4.14 hereof, the
Company shall be required to commence an offer to all Holders to purchase Notes
(a "Repurchase Offer"), it shall follow the procedures specified below.
The Repurchase Offer shall remain open for a period of 20 Business
Days following its commencement and no longer, except to the extent that a
longer period is required by applicable law (the "Offer Period"). No later than
five Business Days after the termination of the Offer Period (the "Purchase
Date"), the Company shall purchase the principal amount of Notes required to be
purchased pursuant to Section 4.10 or 4.14 hereof (the "Offer Amount") or, if
less than the Offer Amount has been tendered, all Notes tendered in response to
the Asset Sale Offer or Change of Control Offer, as applicable. Payment for any
Notes so purchased shall be made in the same manner as interest payments are
made.
If the Purchase Date is on or after an interest record date and on
or before the related interest payment date, any accrued and unpaid interest
shall be paid to the Person in whose name a Note is registered at the close of
business on such record date, and no additional interest shall be payable to
Holders who tender Notes pursuant to the Repurchase Offer.
Upon the commencement of an Repurchase Offer, the Company shall
send, by first class mail, a notice to the Trustee and each of the Holders, with
a copy to the Trustee. The notice shall contain all instructions and materials
necessary to enable such Holders to tender Notes pursuant to the Repurchase
Offer. The Repurchase Offer shall be made to all Holders. The notice, which
shall govern the terms of the Repurchase Offer, shall state:
(a) that the Repurchase Offer is being made pursuant to this
Section 3.09 and Section 4.10 or 4.14 hereof and the length of time the
Repurchase Offer shall remain open;
(b) the Offer Amount, the purchase price and the Purchase
Date;
(c) that any Note not tendered or accepted for payment shall
continue to accrue interest and Liquidated Damages, if any;
61
(d) that, unless the Company defaults in making such
payment, any Note accepted for payment pursuant to the Repurchase Offer shall
cease to accrue interest and Liquidated Damages, if any, after the Purchase
Date;
(e) that Holders electing to have a Note purchased pursuant
to an Repurchase Offer may elect to have Notes purchased in integral multiples
of $1,000 only;
(f) that Holders electing to have a Note purchased pursuant
to any Repurchase Sale Offer shall be required to surrender the Note, with the
form entitled "Option of Holder to Elect Purchase" on the reverse of the Note
completed, or transfer by book-entry transfer, to the Company, a depositary, if
appointed by the Company, or a Paying Agent at the address specified in the
notice at least three days before the Purchase Date;
(g) that Holders shall be entitled to withdraw their
election if the Company, the Depositary or the Paying Agent, as the case may be,
receives, not later than the expiration of the Offer Period, a telegram, telex,
facsimile transmission or letter setting forth the name of the Holder, the
principal amount of the Note the Holder delivered for purchase and a statement
that such Holder is withdrawing his election to have such Note purchased;
(h) that, if the aggregate principal amount of Notes
surrendered by Holders exceeds the Offer Amount, the Company shall select the
Notes to be purchased on a pro rata basis (with such adjustments as may be
deemed appropriate by the Company so that only Notes in denominations of $1,000,
or integral multiples thereof, shall be purchased); and
(i) that Holders whose Notes were purchased only in part
shall be issued new Notes equal in principal amount to the unpurchased portion
of the Notes surrendered (or transferred by book-entry transfer).
On or before the Purchase Date, the Company shall, to the extent
lawful, accept for payment, on a pro rata basis to the extent necessary, the
Offer Amount of Notes or portions thereof tendered pursuant to the Asset Sale
Offer or Change of Control Offer, as applicable, or if less than the Offer
Amount has been tendered, all Notes tendered, and shall deliver to the Trustee
an Officers' Certificate stating that such Notes or portions thereof were
accepted for payment by the Company in accordance with the terms of this Section
3.09. The Company, the Depositary or the Paying Agent, as the
62
case may be, shall promptly (but in any case not later than five days after the
Purchase Date) mail or deliver to each tendering Holder an amount equal to the
purchase price of the Notes tendered by such Holder and accepted by the Company
for purchase, and the Company shall promptly issue a new Note, and the Trustee,
upon written request from the Company shall authenticate and mail or deliver
such new Note to such Holder, in a principal amount equal to any unpurchased
portion of the Note surrendered. Any Note not so accepted shall be promptly
mailed or delivered by the Company to the Holder thereof. The Company shall
publicly announce the results of the Asset Sale Offer on the Purchase Date.
Other than as specifically provided in this Section 3.09, any
purchase pursuant to this Section 3.09 shall be made pursuant to the provisions
of Sections 3.01 through 3.06 hereof.
ARTICLE III
COVENANTS
---------
Section 4.01 Payment of Notes.
----------------
(a) The Company shall pay or cause to be paid the principal
of, premium, if any, and interest on the Notes on the dates and in the manner
provided in the Notes. Principal, premium, if any, and interest shall be
considered paid on the date due if the Paying Agent, if other than the Company
or a Subsidiary thereof, holds as of 10:00 a.m. Eastern Time on the due date
money deposited by the Company in immediately available funds and designated for
and sufficient to pay all principal, premium, if any, and interest then due. The
Company shall pay all Liquidated Damages, if any, in the same manner on the
dates and in the amounts set forth in the Registration Rights Agreement.
(b) The Company shall pay interest (including post-petition
interest in any proceeding under any Bankruptcy Law) on overdue principal at the
rate equal to 1% per annum in excess of the then applicable interest rate on the
Notes to the extent lawful; it shall pay interest (including post-petition
interest in any proceeding under any Bankruptcy Law) on overdue installments of
interest and Liquidated Damages (without regard to any applicable grace period)
at the same rate to the extent lawful.
Section 4.02 Maintenance of Office or Agency.
-------------------------------
63
(a) The Company shall maintain in the Borough of Manhattan,
the City of New York, an office or agency (which may be an office of the Trustee
or an affiliate of the Trustee, Registrar or co-registrar) where Notes may be
surrendered for registration of transfer or for exchange and where notices and
demands to or upon the Company in respect of the Notes 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 Corporate Trust
Office of the Trustee.
(b) The Company may also from time to time designate one or
more other offices or agencies where the Notes 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.
(c) The Company hereby designates the Corporate Trust Office
of the Trustee as one such office or agency of the Company in accordance with
Section 2.03.
Section 4.03 Reports.
-------
(a) Whether or not the Company is required to do so by the
rules and regulations of the SEC, so long as any Notes are outstanding, the
Company shall furnish to the Trustee for the benefit of the Holders of the
Notes, within 2 Business Days of the time periods specified in the SEC's rules
and regulations (i) all quarterly and annual financial and other information
with respect to the Company and its consolidated Subsidiaries that would be
required to be contained in a filing with the SEC 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
consolidated Subsidiaries, showing in reasonable detail, either on the face of
the financial statements or in the footnotes thereto and in Management's
Discussion and Analysis of Financial Condition and Results of Operations, the
financial condition and results of operations of the Company and its Restricted
Subsidiaries
64
separate from the financial information and results of operations of the
Unrestricted Subsidiaries of the Company 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 SEC on Form 8-K if the Company were required to file such reports.
Notwithstanding the foregoing, such requirements shall be deemed satisfied prior
to November 15, 2000, by filing with the SEC and delivering to the Trustee and
the Holders of the Notes on or prior to such date a registration statement under
the Securities Act that contains the information that would be required in a
Form 10-Q for the Company for the quarter ended September 30, 2000.
(b) After the Exchange Offer or the effectiveness of the
Shelf Registration Statement, whether or not required by the rules and
regulations of the SEC, the Company shall file a copy of all of the information
and reports required to be delivered pursuant to clause (a) of this Section 4.03
with the SEC for public availability, unless the SEC shall not accept such a
filing. The filing of such information with the SEC, and transmission of a copy
thereof to the Trustee as set forth in clause (a) above, shall satisfy the
Company's obligations described in this Section 4.03.
Section 4.04 Compliance Certificate.
----------------------
(a) The Company shall deliver to the Trustee, within 90 days
after the end of each fiscal year, an Officers' Certificate stating that a
review of the activities of the Company and its Subsidiaries during the
preceding fiscal year has been made under the supervision of the signing
Officers with a view to determining whether the Company has kept, observed,
performed and fulfilled its obligations under this Indenture, and further
stating, as to each such Officer signing such certificate, that to the best of
his or her knowledge the Company has kept, observed, performed and fulfilled
each and every covenant contained in this Indenture and is not in default in the
performance or observance of any of the terms, provisions and conditions of this
Indenture (or, if a Default or Event of Default shall have occurred, describing
all such Defaults or Events of Default of which he or she may have knowledge and
what action the Company is taking or proposes to take with respect thereto) and
that to the best of his or her knowledge no event has occurred and remains in
existence by reason of which payments on account of the principal of or
interest, if any, on the Notes is prohibited or if such event has occurred, a
description of the event and what action the Company is taking or proposes to
take with respect thereto.
(b) So long as not contrary to the then current
recommendations of the American Institute of Certified Public Accountants, the
65
year-end financial statements delivered pursuant to Section 4.03(a) above shall
be accompanied by a written statement of the Company's independent public
accountants (who shall be a firm of established national reputation) that in
making the examination necessary for certification of such financial statements,
nothing has come to their attention that would lead them to believe that the
Company has violated any provisions of Article IV or Article V hereof or, if any
such violation has occurred, specifying the nature and period of existence
thereof, it being understood that such accountants shall not be liable directly
or indirectly to any Person for any failure to obtain knowledge of any such
violation.
(c) The Company shall, so long as any of the Notes are
outstanding, deliver to the Trustee, forthwith upon any Officer (excluding for
purposes hereof any Assistant Treasurer, Secretary or Assistant Secretary)
becoming aware of any Default or Event of Default, an Officers' Certificate
specifying such Default or Event of Default and what action the Company is
taking or proposes to take with respect thereto.
Section 4.05 Taxes.
-----
The Company shall pay, and shall cause each of its Subsidiaries to
pay, prior to delinquency, all material taxes, assessments, and governmental
levies except such as are contested in good faith and by appropriate proceedings
or where the failure to effect such payment is not adverse in any material
respect to the Holders of the Notes.
Section 4.06 Stay, Extension and 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, extension or usury law
wherever enacted, now or at any time hereafter in force, that may affect the
covenants or the performance of this Indenture; and the Company (to the extent
that it may lawfully do so) hereby expressly waives all benefit or advantage of
any such law, and covenants that it shall not, by resort to any such law,
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 has been enacted.
Section 4.07 Limitation on Restricted Payments.
---------------------------------
66
(a) Prior to and including June 30, 2003, the Company shall
not, and shall not permit any of its Restricted Subsidiaries to, directly or
indirectly:
(i) declare or pay any dividend or make any
distribution on account of the Company's or any of its Restricted
Subsidiaries' Equity Interests (including, without limitation, any payment
in connection with any merger or consolidation involving the Company or any
of its Restricted Subsidiaries), or to the direct or indirect holders of
the Company's or any of its Restricted Subsidiaries' Equity Interests in
their capacity as such, other than dividends or distributions payable
solely in the Company's Equity Interests, other than Disqualified Stock, or
to the Company or any of its Restricted Subsidiaries;
(ii) purchase, redeem or otherwise acquire or retire
for value (including without limitation, in each case, in connection with
any merger or consolidation involving the Company or any Guarantor), any
Equity Interests of the Company or a Guarantor or any direct or indirect
parent of the Company or a Guarantor;
(iii) make any payment on or with respect to, or
purchase, redeem, defease or otherwise acquire or retire for value any
Indebtedness that is subordinate, whether pursuant to its terms or by
operation of law, in right of payment to the Notes or the Note Guarantees
except a payment of interest or principal at the Stated Maturity thereof;
or
(iv) make any Restricted Investment (each of the
foregoing actions set forth in clauses (i) through (iv) being referred to
as a "Restricted Payment").
(b) After June 30, 2003, the Company and its Restricted
Subsidiaries shall not, directly or indirectly, make any Restricted Payment
unless, at the time thereof, and after giving effect thereto,
(i) no Default or Event of Default shall have
occurred and be continuing;
67
(ii) the Company would, at the time of such
Restricted Payment and after giving pro forma effect thereto as if such
Restricted Payment had been made at the beginning of the applicable period,
have been permitted to incur at least $1.00 of additional Indebtedness,
other than Permitted Indebtedness, pursuant to Section 4.09(a)(i); and
(iii) after giving effect to such Restricted Payment
on a pro forma basis (other than the items permitted by clauses (ii),
(iii), (iv), (v) and (vi) of paragraph (c) of this Section 4.07), the
aggregate amount of all Restricted Payments made on or after the Issue Date
shall not exceed the sum of, without duplication (A) the amount of (x) the
Operating Cash Flow of the Company after June 30, 2003 through the end of
the latest full fiscal quarter for which consolidated financial statements
of the Company are publicly available (or, if the Company does not make its
financial statements publicly available, the date that is 45 days after the
end of such fiscal quarter in the event such quarter is other than the
quarter ending at the end of the fiscal year and 90 days after the end of
such fiscal quarter for the quarter ending at the end of the fiscal year)
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 June 30, 2003 through the end of the latest
full fiscal quarter for which consolidated financial statements of the
Company are publicly available (or, if the Company does not make its
financial statements publicly available, the date that is 45 days after the
end of such fiscal quarter in the event such quarter is other than the
quarter ending at the end of the fiscal year and 90 days after the end of
such fiscal quarter for the quarter ending at the end of the fiscal year)
preceding the date of such Restricted Payment, treated as a single
accounting period, plus (B) 100% of the aggregate net cash proceeds
(excluding the first $70.0 million in gross cash proceeds received by the
Company from the issuance of Equity Interests after the Issue Date)
received by the Company after the date hereof as a contribution to the
Company's common equity capital or from the issuance or sale of the
Company's Equity Interests, other than Disqualified Stock, or from the
issuance or sale of convertible or exchangeable Disqualified Stock or
convertible or exchangeable debt securities of the Company that, in the
case of debt securities, have been converted into or exchanged for such
Equity Interests, other than Equity
68
Interests, Disqualified Stock or debt securities sold to a
Restricted Subsidiary of the Company, plus (C) the amount by which
Indebtedness of the Company or any of its Restricted Subsidiaries is
reduced on the Company's consolidated balance sheet upon the
conversion or exchange (other than by a Subsidiary of the Company)
subsequent to the Issue Date of any Indebtedness of the Company or
any of its Restricted Subsidiaries convertible or exchangeable for
Capital Stock (other than Disqualified Stock) of the Company (less
the amount of any cash, or the fair value of any other property,
distributed by the Company upon such conversion or exchange), plus
(D) to the extent that any Restricted Investment that was made after
the date hereof is sold for cash or otherwise liquidated or repaid
for cash, the lesser of (x) the cash return of capital with respect
to such Restricted Investment (less the cost of disposition, if any)
and (y) the initial amount of such Restricted Investment.
(c) The foregoing limitations in this Section 4.07 do
not limit or restrict the making of any Permitted Investment, and a Permitted
Investment shall not be counted as a Restricted Payment for purposes of Section
4.07(b)(iii)(D) above. In addition, so long as no Default or Event of Default
shall have occurred and be continuing, the foregoing limitations shall not
prevent the Company from:
(i) paying a dividend on the Company's Equity
Interests within 60 days after the declaration thereof if, on the date
when the dividend was declared, the Company could have paid such
dividend in accordance with the provisions of this Indenture;
(ii) repurchasing the Company's Equity Interests
from current or former employees or directors of the Company or any of
its Subsidiaries for consideration not to exceed $3.0 million in the
aggregate in any fiscal year; provided that any unused amount in any
fiscal year may be carried forward to one or more future periods;
provided, further, however, that such amount may be increased by an
amount not to exceed (A) the cash proceeds from sales of Capital Stock
of the Company (other than Disqualified Stock) to members of
management or directors or consultants of the Company and its
Subsidiaries that occur after the Issue Date provided, that the amount
of any such net cash proceeds shall be excluded from Section
4.07(b)(iii)(B) above, plus (b) the cash proceeds of key man life
insurance policies received by the Company and any of its Restricted
Subsidiaries after the Issue Date; and provided, further,
69
that the aggregate amount of all such repurchases made pursuant to this
Section 4.07(c)(ii) does not exceed $15.0 million;
(iii) redeeming, repurchasing, defeasing or otherwise
acquiring or retiring for value Indebtedness that is subordinated in right of
payment to the Notes, including premium, if any, and accrued and unpaid
interest, with the proceeds of, or in exchange for:
(A) the net cash proceeds from a substantially
concurrent issuance of Equity Interests of the Company (other than
Disqualified Stock of the Company and other than Equity Interests sold
to a Restricted Subsidiary of the Company), provided that the amount
of any such net cash proceeds that are utilized for any such
redemption, repurchase, defeasance or other acquisition shall be
excluded from Section 4.07(b)(iii)(B) above, or
(B) Indebtedness that is at least as subordinated in
right of payment to the Notes, including premium, if any, and accrued
and unpaid interest, as the Indebtedness being purchased, with
Restricted Payments made pursuant to this clause not being counted as
Restricted Payments for purposes of Section 4.07(b)(iii)(D) above;
(iv) repurchasing, redeeming or otherwise acquiring Equity
Interests of the Company in exchange for, or out of the net cash proceeds
from a substantially concurrent issuance of Equity Interests of the Company
(other than Disqualified Stock of the Company and other than Equity Interests
sold to a Restricted Subsidiary of the Company), provided that the amount of
any such net cash proceeds that are utilized for any such repurchase,
redemption or other acquisition shall be excluded from Section
4.07(b)(iii)(B) above;
(v) the payment of any dividend or distribution by one of
the Company's Restricted Subsidiaries to the holders of its Equity Interests
on a pro rata basis, but only to the extent such payment is made to the
Company or one of its Restricted Subsidiaries;
(vi) making other Restricted Payments not to exceed $5.0
million in the aggregate at any time outstanding, with Restricted Payments
made pursuant to this clause not being counted as Restricted Payments for
purposes of Section 4.07(b)(iii)(D) above; or
70
(vii) making distributions or payments of Receivables Fees.
In addition, if any Person in which an Investment is made, which
Investment constituted a Restricted Payment when made, thereafter becomes a
Restricted Subsidiary, such Investments previously made in such Person shall no
longer be counted as Restricted Payments for purposes of calculating the
aggregate amount of Restricted Payments pursuant to clause (b)(iii)(D) of this
Section 4.07 to the extent such Investments would not have been Restricted
Payments had such Person been a Restricted Subsidiary at the time such
Investments were made.
For purposes of clauses (iii) and (iv) above, (i) the net cash
proceeds received by the Company from the issuance or sale of the Company's
Equity Interests either upon the conversion of, or in exchange for, Indebtedness
of the Company or any Restricted Subsidiary shall be deemed to be an amount
equal to (A) the sum of (1) the principal amount or Accreted Value, whichever is
less, of such Indebtedness on the date of such conversion or exchange and (2)
the additional cash consideration, if any, received by the Company upon such
conversion or exchange, less any payment on account of fractional shares, minus
(B) all expenses incurred in connection with such issuance or sale; (ii) the net
proceeds received by the Company from the issuance or sale of its Equity
Interests upon the exercise of any options or warrants of the Company or any
Restricted Subsidiary shall be deemed to be an amount equal to (A) the
additional cash consideration, if any, received by the Company upon such
exercise, minus (B) all expenses incurred in connection with such issuance or
sale; and (iii) the first $70.0 million of gross cash proceeds received by the
Company from the issuance of Equity Interests after the Issue Date shall not be
included.
For purposes of this Section 4.07, if a particular Restricted Payment
involves a non-cash payment, including a distribution of assets, then such
Restricted Payment shall be deemed to be an amount equal to the cash portion of
such Restricted Payment, if any, plus an amount equal to the Fair Market Value
of the non-cash portion of such Restricted Payment, as determined by the
Company's Board of Directors, whose good-faith determination shall be conclusive
and evidenced by a Board Resolution and, in the case of Fair Market Value of
such non-cash portion in excess of $5.0 million, accompanied by an opinion of an
accounting, appraisal or investment banking firm of national standing. Not later
than the Business Day after the making of any Restricted Payment in excess of
$5.0 million, the Company shall deliver to the Trustee an Officers' Certificate
stating that such Restricted Payment is permitted and setting forth the basis
71
upon which the calculations required by this Section 4.07 were computed,
together with a copy of any Board Resolution, fairness opinion or appraisal
required by this Indenture.
The amount of any Investment outstanding at any time shall be
deemed to be equal to the amount of such Investment on the date made, less the
return of capital, repayment of loans and return on capital, including interest
and dividends, in each case, received in cash, up to the amount of such
Investment on the date made.
Section 4.08 Dividend and Other Payment Restrictions Affecting Subsidiaries.
--------------------------------------------------------------
(a) The Company will not, and will not permit any of its
Restricted Subsidiaries, directly or indirectly, to create or permit to exist or
become effective any encumbrance or restriction on the ability of any Restricted
Subsidiary to (1) pay dividends or make any other distributions on its Capital
Stock to the Company or any of its Restricted Subsidiaries, or with respect to
any other interest or participation in, or measured by, its profits, or pay any
Indebtedness owed to the Company or any of its Restricted Subsidiaries; (2) make
loans or advances to the Company or any of its Restricted Subsidiaries; or (3)
transfer any of its properties or assets to the Company or any of its Restricted
Subsidiaries.
(b) The provisions of clause (a) above shall not apply to
encumbrances or restrictions existing under or by reason of:
(i) Existing Indebtedness or Credit Facilities as in
effect on the Issue Date and any amendments, modifications, restatements,
renewals, increases, supplements, refundings, replacements or refinancings
thereof, provided that such amendments, modifications, restatements,
renewals, increases, supplements, refundings, replacements or refinancings
are no more restrictive, taken as a whole, with respect to such dividend
and other payment restrictions than those contained in such Existing
Indebtedness or Credit Facilities, as in effect on the Issue Date;
(ii) this Indenture, the Notes and the Note Guarantees;
(iii) applicable law;
(iv) any instrument governing Indebtedness or Capital Stock
of a Person acquired by the Company or any of its Restricted Subsidiaries
as in effect at the time of such acquisition, except to the extent such
72
Indebtedness was incurred in connection with or in contemplation of such
acquisition, which encumbrance or restriction is not applicable to any
Person, or the properties or assets of any Person, other than the Person,
or the property or assets of the Person, so acquired, provided that, in the
case of Indebtedness, such Indebtedness was permitted by the terms of this
Indenture to be incurred;
(v) customary non-assignment provisions in leases entered
into in the ordinary course of business and consistent with past practices;
(vi) Purchase Money Indebtedness for property acquired in
the ordinary course of business that impose restrictions on the property so
acquired of the nature described in clause (3) of paragraph (a) of this
Section 4.08;
(vii) any agreement for the sale or other disposition of a
Restricted Subsidiary that restricts distributions by such Restricted
Subsidiary pending its sale or other disposition;
(viii) Permitted Refinancing Indebtedness, provided that the
restrictions contained in the agreements governing such Permitted
Refinancing Indebtedness are no more restrictive, taken as a whole, than
those contained in the agreements governing the Indebtedness being
refinanced;
(ix) Liens securing Indebtedness otherwise permitted to be
incurred pursuant to the provisions of Section 4.12 that limit the right of
the Company or any of its Restricted Subsidiaries to dispose of the assets
subject to such Lien;
(x) provisions with respect to the disposition or
distribution of assets or property in joint venture agreements and other
similar agreements entered into in the ordinary course of business; and
(xi) restrictions on cash or other deposits or net worth
imposed by customers under contracts entered into in the ordinary course of
business.
73
Section 4.09 Incurrence of Indebtedness and Issuance of Preferred Stock.
----------------------------------------------------------
(a) The Company shall not, and shall not permit any Restricted
Subsidiary to, directly or indirectly, incur any Indebtedness, including
Acquired Debt, other than Permitted Indebtedness, and the Company shall not
issue any Disqualified Stock and shall not permit any of its Restricted
Subsidiaries to issue any shares of Preferred Capital Stock, in each case unless
immediately after giving effect to the incurrence of such Indebtedness or the
issuance of such Disqualified Stock or Preferred Capital Stock and the receipt
and application of the net proceeds therefrom, including, without limitation,
the application or use of the net proceeds therefrom to repay Indebtedness or
make any Restricted Payment, (i) the Consolidated Debt to Annualized Operating
Cash Flow Ratio would be (A) less than 7.0 to 1.0, if prior to December 31, 2005
and (B) less than 6.0 to 1.0, if on or after December 31, 2005 or (ii) in the
case of any incurrence of Indebtedness prior to December 31, 2005 only,
Consolidated Debt would be equal to or less than 75% of Total Invested Capital.
(b) So long as no Default or Event of Default shall have
occurred and be continuing or would be caused thereby, paragraph (a) of this
Section 4.09 will not prohibit the incurrence of any of the following items of
Indebtedness (collectively, "Permitted Indebtedness"):
(i) the incurrence by the Company and the Guarantors of
Existing Indebtedness;
(ii) the incurrence by the Company and the Guarantors of
Indebtedness represented by the Notes and the related Note Guarantees to be
issued on the Issue Date;
(iii) the incurrence by the Company and any Guarantor of
Indebtedness under Credit Facilities; provided that the aggregate principal
amount of all Indebtedness of the Company and the Guarantors outstanding
under the Credit Facilities at any time outstanding, after giving effect to
such incurrence, does not exceed the sum of (A) $200.0 million plus (B) 75%
of Qualified Receivables, which sum shall be permanently reduced by the
aggregate amount of all Net Proceeds of Asset Sales applied since the date
of this Indenture to repay Indebtedness under a Credit Facility pursuant to
Section 4.10;
74
(iv) the incurrence by the Company or any Guarantor of
Indebtedness represented by Capital Lease Obligations or Purchase Money
Indebtedness, in each case, (A) incurred for the purpose of leasing or
financing all or any part of the purchase price or cost of construction or
improvement of inventory, property, plant or equipment used in the business
of the Company or any of its Restricted Subsidiaries, including telephone
and computer systems and operating facilities, in an aggregate principal
amount not to exceed $5.0 million at any time outstanding and (B) such
Indebtedness shall not constitute more than 100% (determined in accordance
with GAAP in good faith by the Board of Directors of the Company) of the
cost of the property so purchased, constructed, improved or leased;
(v) the incurrence by the Company or any Guarantor of
Permitted Refinancing Indebtedness in exchange for, or the net proceeds of
which are used to refund, refinance or replace, Indebtedness, other than
intercompany Indebtedness, that was permitted to be incurred under
paragraph (a) of this Section 4.09 or clauses (i), (ii) or (xiii) of this
paragraph;
(vi) the incurrence of intercompany Indebtedness between or
among the Company and any of its Restricted Subsidiaries that are
Guarantors; provided, however, that:
(A) if the Company or any Guarantor is the obligor on
such Indebtedness, such Indebtedness must be expressly subordinated to
the prior payment in full in cash of all Obligations with respect to
the Notes, in the case of the Company, or the Note Guarantee of such
Guarantor, in the case of a Guarantor; and
(B) (1) any subsequent issuance or transfer of Equity
Interests that results in any such Indebtedness being held by a Person
other than the Company or one of its Restricted Subsidiaries and (2)
any sale or other transfer of any such Indebtedness to a Person that
is not either the Company or one of its Restricted Subsidiaries, shall
be deemed, in each case, to constitute an incurrence of such
Indebtedness by the Company or such Restricted Subsidiary, as the case
may be, that was not permitted by this clause (vi);
75
(vii) the incurrence by the Company or any Guarantor of
Hedging Obligations that are incurred for the purpose of fixing or hedging
interest rate risk with respect to any floating rate Indebtedness that is
permitted by the terms of this Indenture to be outstanding;
(viii) the Guarantee by the Company or any of the Guarantors
of Indebtedness that was permitted to be incurred by another provision of
this Section 4.09;
(ix) the accrual of interest and the payment of dividends
on Disqualified Stock in the form of additional shares of the same class of
Disqualified Stock;
(x) Indebtedness (A) in respect of performance, surety or
appeal bonds or bankers' acceptances provided in the ordinary course of
business and (B) arising from agreements providing for indemnification,
adjustment of purchase price or similar obligations, or from guarantees or
letters of credit, surety bonds or performance bonds securing any
obligations of the Company or any of is Restricted Subsidiaries pursuant to
such agreements, in any case incurred in connection with the disposition of
any business, assets or Restricted Subsidiary (other than guarantees of
Indebtedness incurred by a Person acquiring all or any portion of such
business, assets or Restricted Subsidiary for the purpose of financing such
acquisition), in a principal amount not to exceed the gross proceeds
actually received by the Company or any Restricted Subsidiary in connection
with such disposition;
(xi) the incurrence by the Company or any Restricted
Subsidiary of any Indebtedness under any unsecured deferred promissory note
payable to Sprint PCS pursuant to the deferral of collected revenues
provisions of the Consent and Agreement between Sprint PCS and the lenders
under the Credit Facilities;
(xii) the incurrence by the Company or any of its
Restricted Subsidiaries of additional Indebtedness in an aggregate
principal amount, or accreted value, as applicable, at any time
outstanding, including all Permitted Refinancing Indebtedness incurred to
refund, refinance or replace any Indebtedness incurred pursuant to this
clause (xii), not to exceed $50.0 million; and
76
(xiiii) the incurrence by the Company or any Guarantor of
Acquired Debt but only to the extent that immediately after giving effect
to the incurrence of such Indebtedness (A) in the event of the incurrence
of Acquired Debt on or after December 31, 2005 only, the Consolidated Debt
to Annualized Operating Cash Flow Ratio would decrease as compared to the
Consolidated Debt to Annualized Operating Cash Flow Ratio immediately prior
to such incurrence or (B) in the event of the incurrence of Acquired Debt
prior to December 31, 2005 only, the ratio of Consolidated Debt to Total
Invested Capital would decrease as compared to the ratio of Consolidated
Debt to Total Invested Capital immediately prior to such incurrence.
(c) For purposes of determining compliance with this
Section 4.09, in the event that an item of proposed Indebtedness meets the
criteria of more than one of the categories of Permitted Indebtedness described
in clauses (i) through (xiii) of paragraph (b) of this Section 4.09, or is
entitled to be incurred pursuant to paragraph (a) of this Section 4.09, the
Company and its Restricted Subsidiaries shall, in their sole discretion,
classify such item of Indebtedness from time to time in any manner that complies
with this Section 4.09 and such item of Indebtedness will be treated as having
been incurred pursuant to only one of such clauses or pursuant to Section
4.09(a) at any given time. Accrual of interest, the accretion of accreted value
and the payment of interest in the form of additional Indebtedness will not be
deemed to be an incurrence of Indebtedness for purposes of this Section 4.09.
(d) Notwithstanding anything to the contrary contained in
this Section 4.09, (i) the Company shall not, and shall not permit any Guarantor
to, incur any Indebtedness pursuant to this Section 4.09 if the proceeds thereof
are used, directly or indirectly, to refinance any subordinated Indebtedness
unless such newly-incurred Indebtedness shall be subordinated to the Notes or
the applicable Note Guarantee, as the case may be, to at least the same extent
as such refinanced subordinated Indebtedness, and (ii) the Company shall not
permit any Restricted Subsidiary that is not a Guarantor to incur any
Indebtedness pursuant to this Section 4.09 if the proceeds thereof are used,
directly or indirectly, to refinance any Indebtedness of the Company or any
Guarantor.
Section 4.10 Asset Sales.
-----------
(a) Neither the Company nor any of its Restricted Subsidiaries
shall consummate an Asset Sale unless:
77
(i) the Company or its Restricted Subsidiary, as the case
may be, receives consideration at the time of the Asset Sale at least equal
to the Fair Market Value of the assets sold, leased, conveyed or otherwise
disposed of or of the Equity Interests issued or sold;
(ii) such Fair Market Value is determined by the Company's
Board of Directors and evidenced by a resolution of such Board of
Directors, which resolution shall, in the case of an Asset Sale with a Fair
Market Value of greater than $10.0 million, be set forth in an Officers'
Certificate delivered to the Trustee; and
(iii) (A) at least 75% of the consideration therefor
received by the Company or its Restricted Subsidiary is in the form of cash
or Cash Equivalents or (B) the Asset Sale qualifies as a Permitted
Telecommunications Exchange Transaction.
For purposes of clause (iii) of this paragraph (a), the following are
considered to be cash: any liabilities, as shown on the Company's or such
Restricted Subsidiary's most recent balance sheet, of the Company or any
Restricted Subsidiary, other than contingent liabilities and liabilities that
are by their terms subordinated to the Notes or any Note Guarantee, that are
assumed by the transferee of any such assets or Equity Interests pursuant to a
customary novation agreement that released the Company or such Restricted
Subsidiary from further liability; and any securities, notes or other
obligations received by the Company or any such Restricted Subsidiary from such
transferee that are converted by the Company or such Restricted Subsidiary into
cash within 60 days following the closing, to the extent of the cash received in
that conversion.
(b) Within 360 days after the receipt of any Net Proceeds from
an Asset Sale, the Company or any Restricted Subsidiary shall be permitted to
apply the Net Proceeds, at its option,
(i) to repay Senior Debt;
(ii) to acquire a majority of the Voting Stock of another
Permitted Business which becomes part of, or which is or becomes, a
Restricted Subsidiary of the Company;
78
(iii) to make one or more capital expenditures in assets
that are used or useful in a Permitted Business; or
(iv) to acquire other assets that are used or useful in a
Permitted Business.
Pending the final application of any such Net Proceeds, the Company may
temporarily reduce revolving credit borrowings or otherwise invest such Net
Proceeds in any manner that is not prohibited by this Indenture.
(c) Any Net Proceeds from Asset Sales that are not applied or
invested as provided in paragraph (b) of this Section 4.10 will be deemed to
constitute "Excess Proceeds." When the amount of Excess Proceeds is greater than
$10.0 million, the Company shall be required to make an offer to all holders of
Notes and all holders of Indebtedness that is equal in right of payment with the
Notes containing provisions similar to those set forth in this Indenture with
respect to offers to purchase or redeem the Indebtedness with the proceeds of
sales of assets (an "Asset Sale Offer") to purchase the maximum Accreted Value
or principal amount at maturity of Notes and such other Indebtedness that is
equal in right of payment that may be purchased out of the Excess Proceeds. The
offer price in any Asset Sale Offer will be equal to 100% of the Accreted Value
or 100% of the principal amount at maturity, plus accrued and unpaid interest,
if any, to the date of purchase, as applicable, and will be payable in cash. If
any Excess Proceeds remain after consummation of an Asset Sale Offer, the
Company may use such Excess Proceeds for any purpose not otherwise prohibited by
this Indenture. If the aggregate principal amount of Notes and such other pari
passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of
Excess Proceeds, the Trustee shall select the Notes and such other Indebtedness
that is equal in right of payment to be purchased pursuant to Section 3.09 on a
pro rata basis, by lot or by such method as the Trustee shall deem fair and
appropriate. Upon completion of an Asset Sale Offer, the amount of Excess
Proceeds shall be reset at zero.
(d) The Company will comply with the requirements of Rule 14e-1
under the Exchange Act and any other securities laws and regulations thereunder
to the extent such laws and regulations are applicable in connection with each
repurchase of Notes pursuant to an Asset Sale Offer. To the extent the
provisions of any such rule conflict with the provisions of this Indenture
relating to Asset Sales, the Company shall comply with the provisions of such
rule and be deemed not to have breached its obligations relating to such Asset
Sale provisions by virtue of such conflict.
79
Section 4.11 Transactions with Affiliates.
----------------------------
(a) The Company will not, and will not permit any of its
Restricted Subsidiaries to, make any payment to, or sell, lease, transfer or
otherwise dispose of any of its properties or assets to, or purchase any
property or assets from, or enter into or make or amend any transaction,
contract, agreement, understanding, loan, advance or guarantee with, or for the
benefit of, any Affiliate (each, an "Affiliate Transaction"), unless:
(i) such Affiliate Transaction is on terms that
are no less favorable to the Company or the relevant Restricted
Subsidiary than those that would have been obtained in a
comparable transaction by the Company or such Restricted
Subsidiary with an unrelated Person; and
(ii) The Company delivers to the Trustee:
(A) with respect to any Affiliate
Transaction or series of related Affiliate
Transactions involving aggregate consideration in
excess of $5.0 million, a Board Resolution set forth
in an Officers' Certificate certifying that such
Affiliate Transaction or series of related Affiliate
Transactions complies with this Section 4.11 and that
such Affiliate Transaction or series of related
Affiliate Transactions has been approved by a majority
of the disinterested members of the Board of Directors
of the Company; and
(B) with respect to any Affiliate
Transaction or series of related Affiliate
Transactions involving aggregate consideration in
excess of $25.0 million, an opinion as to the fairness
to the Holders of Notes of such Affiliate Transaction
from a financial point of view issued by an
accounting, appraisal or investment banking firm of
national standing.
(b) The following items shall not be deemed to be Affiliate
Transactions and, therefore, will not be subject to the provisions of the
paragraph (a) of this Section 4.11:
80
(i) any employment, severance, stock option or other
employee benefit agreement entered into by the Company or any of its
Restricted Subsidiaries in the ordinary course of business;
(ii) transactions between or among the Company and/or a
Restricted Subsidiary and/or its Restricted Subsidiaries;
(iii) payment of reasonable directors fees, expenses and
indemnification to Persons who are not otherwise Affiliates of the Company;
(iv) Restricted Payments that are not prohibited by the
provisions of Section 4.07;
(v) sales of Equity Interests of the Company, other than
Disqualified Stock, to Affiliates of the Company;
(vi) sales of accounts receivable, or participations
therein, in connection with any Receivables Facility; and
(vii) transactions with the members of the Preferred Stock
Investment Group in accordance with the agreements governing the sale by
the Company of the Series A-1 Preferred Stock including the Investment
Agreement, the Registration Rights Agreement, the Stockholders Agreement
and the Transaction Fee Agreement as such agreements exist on the date of
this Indenture or in accordance with the certificate of incorporation or
bylaws of the Company as each exists on the date of this Indenture.
Section 4.12 Liens.
-----
The Company shall not, and shall not permit any Restricted
Subsidiary to, create, incur, assume or otherwise cause or suffer to exist or
become effective any Lien of any kind securing Indebtedness that is equal in
right of payment with the Notes or the applicable Note Guarantee, as the case
may be, or is subordinated Indebtedness, upon any of its respective property or
assets, now owned or hereafter acquired, unless the Company provides, and causes
its Restricted Subsidiaries to provide, concurrently
81
therewith, that the Notes and the applicable Note Guarantees are equally and
ratably so secured; provided that if such Indebtedness is subordinated
Indebtedness, the Lien securing such subordinated Indebtedness shall be
subordinate and junior to the Lien securing the Notes (and any related
applicable Note Guarantees) with the same relative priority as such subordinated
Indebtedness shall have with respect to the Notes (and any related applicable
Note Guarantees); provided further that this restriction will not apply to
Permitted Liens.
Section 4.13 Corporate Existence.
-------------------
Subject to Article V hereof, the Company shall do or cause to be
done all things necessary to preserve and keep in full force and effect (i) its
corporate existence, and the corporate, limited liability company, partnership
or other existence of each of its Restricted Subsidiaries, in accordance with
the respective organizational documents (as the same may be amended from time to
time) of the Company or any such Restricted Subsidiary and (ii) the rights
(charter and statutory), licenses and franchises of the Company and its
Restricted Subsidiaries; provided, however, that the Company shall not be
required to preserve any such right, license or franchise, or the corporate,
limited liability company, partnership or other existence of any of its
Restricted Subsidiaries, if the Board of Directors shall determine that the
preservation thereof is no longer desirable in the conduct of the business of
the Company and its Restricted Subsidiaries, taken as a whole, and that the loss
thereof is not adverse in any material respect to the Holders of the Notes.
Section 4.14 Offer to Repurchase Upon Change of Control.
------------------------------------------
(a) If a Change of Control occurs, the Company shall make
an offer (a "Change of Control Offer") to each Holder to repurchase all or any
part, equal to $1,000 or an integral multiple of $1,000, of the Holder's Notes
at an offer price in cash equal to (i) 101% of the Accreted Value of the Notes,
plus Liquidated Damages, if any, thereon to the date fixed for repurchase, if
the repurchase occurs prior to July 15, 2005 or (ii) 101% of the aggregate
principal amount of the Notes, plus accrued and unpaid interest and Liquidated
Damages, if any, thereon to the date fixed for repurchase, if the repurchase
occurs on or after July 15, 2005 (the "Change of Control Payment").
(b) Within 30 business days following a Change of Control,
the Company shall mail a notice to the Trustee and to each Holder describing the
transaction or transactions that constitute the Change of Control and offering
to repurchase the Notes on the date specified in the notice, which date shall
be, subject to
82
any contrary requirement of applicable law, no earlier than 30 days and no later
than 60 days from the date the notice is mailed (the "Change of Control Payment
Date") pursuant to the procedures set forth in Section 3.09 and described in the
notice.
(c) The Company will comply with the requirements of Rule
14e-1 under the Exchange Act and any other securities laws and regulations
thereunder to the extent such laws and regulations are applicable in connection
with the repurchase of Notes pursuant to a Change of Control Offer. To the
extent the provisions of any such rule conflict with the provisions of this
Indenture relating to a Change of Control, the Company shall comply with the
provisions of such rule and be deemed not to have breached its obligations under
such Change of Control provisions by virtue of such conflict.
(d) On the Change of Control Payment Date, the Company
shall, to the extent lawful, (1) accept for payment all Notes or portions of
Notes properly tendered pursuant to the Change of Control Offer; (2) deposit
with the Paying Agent an amount equal to the Change of Control Payment in
respect of all Notes and portions of the Notes so tendered; and (3) deliver or
cause to be delivered to the Trustee the Notes so accepted together with an
Officers' Certificate stating the Accreted Value or aggregate principal amount,
as applicable, of Notes or portions of the Notes being purchased by the Company.
(e) The Paying Agent shall mail promptly to each Holder of
Notes so tendered the Change of Control Payment for the Notes, and the Trustee
shall promptly authenticate and mail, or cause to be transferred by book entry,
to each Holder a new Note equal in principal amount to any unpurchased portion
of the Notes surrendered, if any; provided that each new Note shall be in a
principal amount of $1,000 or an integral multiple of $1,000.
(f) Prior to complying with any of the provisions of this
Section 4.14, but in any event within 90 days following a Change of Control, the
Company will, or will cause the Guarantors to, either repay all outstanding
Senior Debt or obtain the requisite consents, if any are required, under all
agreements governing outstanding Senior Debt to permit the repurchase of Notes
required by this Section 4.14. The Company shall publicly announce the results
of the Change of Control Offer on or as soon as practicable after the Change of
Control Payment Date.
83
(g) The Change of Control provisions described in this
Section 4.14 shall be applicable regardless of whether or not any other
provisions of this Indenture are applicable.
(h) The Company shall not be required to make a Change of
Control Offer following a Change of Control if a third party makes the Change of
Control Offer in the manner, at the times and otherwise in compliance with the
requirements set forth in this Section 4.14 and purchases all Notes validly
tendered and not withdrawn under the Change of Control Offer.
Section 4.15 Payments for Consent.
--------------------
The Company will not, and will not permit any of its Restricted
Subsidiaries to, directly or indirectly, pay or cause to be paid any
consideration to or for the benefit of any Holder of Notes for or as an
inducement to any consent, waiver or amendment of any of the terms or provisions
of this Indenture or the Notes unless such consideration is offered to be paid
or is paid to all Holders of Notes that consent, waive or agree to amend in the
time frame set forth in the solicitation documents relating to such consent,
waiver or agreement.
Section 4.16 Sale and Leaseback Transactions.
-------------------------------
(a) The Company shall not, and shall not permit any of its
Restricted Subsidiaries to, enter into any Sale and Leaseback Transaction;
provided that the Company or any Restricted Subsidiary that is a Guarantor may
enter into a Sale and Leaseback transaction if:
(i) the Company or that Guarantor, as applicable,
could have (A) incurred Indebtedness in an amount equal to the Attributable
Debt relating to such Sale and Leaseback Transaction under the tests in
clauses (i) and (ii) of Section 4.09(a), if applicable, and (B) incurred a
Lien to secure such Indebtedness pursuant to Section 4.12;
(ii) the gross cash proceeds of that Sale and
Leaseback Transaction are at least equal to the Fair Market Value, as
determined in good faith by the Board of Directors of the Company and set
forth in an Officers' Certificate delivered to the Trustee, of the property
that is the subject of such Sale and Leaseback Transaction; and
84
(iii) the transfer of assets in that Sale and Leaseback
Transaction is permitted by, and the Company applies the Net Proceeds of
such transaction in compliance with, Section 4.10.
(b) Notwithstanding anything to the contrary in this
Section 4.16, the Company or any of its Restricted Subsidiaries shall not be
prohibited from entering into Permitted Tower Sale and Leaseback Transactions.
In addition, Sale and Leaseback Transactions between or among the Company and/or
its Restricted Subsidiaries shall not be prohibited by this Section 4.16.
Section 4.17 Limitation on Layering Indebtedness.
-----------------------------------
The Company will not, and will not permit any of its Restricted
Subsidiaries to, incur any Indebtedness that is contractually subordinated to
any Indebtedness of the Company or any Guarantor unless such Indebtedness is
subordinated to the Notes at least to the same extent as it is to such other
Indebtedness.
Section 4.18 Limitation On Issuances and Sales of Equity Interests in
--------------------------------------------------------
Restricted Subsidiaries.
-----------------------
(a) The Company shall not, and shall not permit any of its
Restricted Subsidiaries to, transfer, convey, sell, lease or otherwise dispose
of any Equity Interests in any Restricted Subsidiary of the Company to any
Person, other than the Company or a Restricted Subsidiary, unless:
(i) such transfer, conveyance, sale, lease or other
disposition is of all the Equity Interests in such Restricted Subsidiary;
and
(ii) the Net Proceeds from such transfer, conveyance,
sale, lease or other disposition are applied in accordance with Section
4.10.
(b) In addition, the Company will not permit any Restricted
Subsidiary of the Company to issue any of its Equity Interests, other than, if
necessary, shares of its Capital Stock constituting directors' qualifying
shares, to any Person other than to the Company or a Restricted Subsidiary.
Section 4.19 Business Activities.
-------------------
85
The Company shall not, and shall not permit any Restricted
Subsidiary to, engage in any business other than Permitted Businesses; provided,
however, that, subject to the other provisions of this Indenture, the Company
and its Restricted Subsidiaries shall not be prohibited from owning, directly or
indirectly, not more than 2.0% of the equity of any publicly traded corporation,
partnership, limited liability company, joint venture or other publicly traded
entity that is not engaged in a Permitted Business.
Section 4.20 Designation of Restricted and Unrestricted Subsidiaries.
-------------------------------------------------------
The Board of Directors may designate any Restricted Subsidiary as
an Unrestricted Subsidiary if that designation would not cause a Default. If a
Restricted Subsidiary is designated as an Unrestricted Subsidiary, all
outstanding Investments owned by the Company and its Restricted Subsidiaries in
the Subsidiary so designated will be deemed to be an Investment made as of the
time of such designation and if required by that covenant will reduce the amount
available for Restricted Payments under Section 4.07(b)(iii) or Permitted
Investments, as applicable. All such outstanding Investments will be valued at
their Fair Market Value at the time of such designation. That designation will
only be permitted if such Restricted Payment would be permitted at that time and
if such Restricted Subsidiary otherwise meets the definition of an Unrestricted
Subsidiary. The Board of Directors of the Company may redesignate any
Unrestricted Subsidiary to be a Restricted Subsidiary if the redesignation would
not cause a Default.
ARTICLE IV
SUCCESSORS
----------
Section 5.01 Merger, Consolidation, or Sale of Assets.
----------------------------------------
(a) The Company and the Guarantors, considered as a whole,
shall not, in any transaction or series of related transactions, merge or
consolidate with or into, or sell, assign, convey, transfer or otherwise dispose
of its properties and assets substantially as an entirety to, any Person, and
shall not permit any of their Restricted Subsidiaries to enter into any such
transaction or series of transactions, unless, at the time and after giving
effect thereto:
86
(i) either: (A) if the transaction or series of
transactions is a consolidation of the Company with or a merger of the
Company with or into any other Person, the Company shall be the surviving
Person of such merger or consolidation, or (B) the Person formed by any
consolidation with or merger with or into the Company, or to which the
properties and assets of the Company or the Company and its Restricted
Subsidiaries, taken as a whole, as the case may be, substantially as an
entirety are sold, assigned, conveyed or otherwise transferred (any such
surviving Person or transferee Person referred to in this clause (B) being
the "Surviving Entity"), shall be a corporation, partnership, limited
liability company or trust organized and existing under the laws of the
United States of America, any state thereof or the District of Columbia and
shall expressly assume by a supplemental indenture executed and delivered
to the Trustee, in form satisfactory to the Trustee, all the Company's
obligations under the Notes and this Indenture and, in each case, this
Indenture, as so supplemented, shall remain in full force and effect;
(ii) immediately before and immediately after giving
effect to such transaction or series of transactions on a pro forma basis
including any Indebtedness incurred or anticipated to be incurred in
connection with or in respect of such transaction or series of
transactions, no Default or Event of Default shall have occurred and be
continuing; and
(iii) the Company or the Surviving Entity will, at the
time of such transaction and after giving pro forma effect thereto as if
such transaction had occurred at the beginning of the applicable period,
(A) be permitted to incur at least $1.00 of additional Indebtedness
pursuant to Section 4.09(a) or (B)(1) in the event that such transaction
occurs on or after December 31, 2005 only, the Consolidated Debt to
Annualized Operating Cash Flow Ratio would decrease as compared to the
Consolidated Debt to Annualized Operating Cash Flow Ratio immediately prior
to such transaction or (2) in the event that such transaction occurs prior
to December 31, 2005 only, the ratio of Consolidated Debt to Total Invested
Capital would decrease as compared to the ratio of Consolidated Debt to
Total Invested Capital immediately prior to such transaction; provided,
however, that the foregoing requirements shall not apply to any transaction
or series of transactions
87
involving the sale, assignment, conveyance, transfer or other disposition
of the properties and assets by any Restricted Subsidiary to the Company or
any other Restricted Subsidiary, or the merger or consolidation of any
Restricted Subsidiary with or into the Company or any other Restricted
Subsidiary.
(b) For purposes of the foregoing, the transfer (by lease,
assignment, sale or otherwise, in a single transaction or series of related
transactions) of all or substantially all of the properties or assets of one or
more Subsidiaries, 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.
(c) In connection with any consolidation, merger, sale,
assignment, conveyance, transfer or other disposition contemplated by the
foregoing provisions of this Section 5.01, the Company shall deliver, or cause
to be delivered, to the Trustee, in form and substance reasonably satisfactory
to the Trustee, an Officers' Certificate stating that such consolidation,
merger, sale, assignment, conveyance, transfer, or other disposition and the
supplemental indenture in respect thereof, required under clause (a)(i)(B) of
this Section 5.01, comply with the requirements of the Indenture and an Opinion
of Counsel to such effect. Each such Officers' Certificate shall set forth the
manner of determination of the Company's compliance with clause (a)(iii) of this
Section 5.01.
(d) For all purposes under this Indenture and the Notes,
including the provisions described in this Section 5.01 and Sections 4.09 and
4.20, Subsidiaries of any Surviving Entity will, upon such transaction or series
of transactions, become Restricted Subsidiaries or Unrestricted Subsidiaries as
provided pursuant to Section 4.20 and all Indebtedness of the Surviving Entity
and its Subsidiaries that was not Indebtedness of the Company and its
Subsidiaries immediately prior to such transaction or series of transactions
shall be deemed to have been incurred upon such transaction or series of
transactions.
Section 5.02 Successor Corporation Substituted.
---------------------------------
Upon any consolidation or merger, or any sale, assignment,
transfer, lease, conveyance or other disposition of all or substantially all of
the assets of the Company in accordance with Section 5.01 hereof, the successor
corporation formed by such consolidation or into or with which the Company is
merged or to which such sale,
88
assignment, transfer, lease, conveyance or other disposition is made shall
succeed to, and be substituted for (so that from and after the date of such
consolidation, merger, sale, lease, conveyance or other disposition, the
provisions of this Indenture referring to the "Company" shall refer instead to
the successor corporation and not to the Company), and may exercise every right
and power of the Company under this Indenture with the same effect as if such
successor Person had been named as the Company herein; provided, however, that
the predecessor Company shall not be relieved from the obligation to pay the
principal of and interest on the Notes except in the case of a sale of all of
the Company's assets that meets the requirements of Section 5.01 hereof.
ARTICLE V
DEFAULTS AND REMEDIES
---------------------
Section 6.01 Events of Default.
-----------------
An "Event of Default" occurs if:
(a) the failure by the Company to pay any installment of
interest on, or Liquidated Damages with respect to, the Notes as and when the
same becomes due and payable and the continuance of any such failure for 30
days;
(b) the failure of the Company to pay all or any part of
the principal, or premium, if any, on the Notes when and as the same becomes due
and payable at maturity, redemption, by acceleration or otherwise, including,
without limitation, payment of the Change of Control Payment or the amount set
forth in an Asset Sale Offer, or otherwise on Notes validly tendered and not
properly withdrawn pursuant to a Change of Control or Asset Sale Offer, as
applicable, or default in the payment when due of principal of or premium, if
any, on the Notes, whether or not prohibited by any other provision of this
Indenture;
(c) the failure by the Company or any of its Restricted
Subsidiaries to comply with any of the provisions of Section 4.10 or 4.14 or
Article V hereof;
(d) the failure by the Company or any of its Restricted
Subsidiaries, for 30 days after written notice to the Company by the Trustee or
the Holders of at least 25% in aggregate principal amount of the then
outstanding Notes, to comply with any of its other covenants or agreements in
this Indenture or the Notes;
89
(e) the default under any mortgage, indenture or instrument
under which there may be issued or by which there may be secured or evidenced
any Indebtedness for money borrowed by the Company or any of its Restricted
Subsidiaries, or the payment of which is guaranteed by the Company or any of its
Restricted Subsidiaries, whether such Indebtedness or Guarantee now exists, or
is created after the date of this Indenture, if that default (i) is caused by a
failure to pay principal of or premium, if any, or interest on such Indebtedness
prior to the expiration of the grace period provided in such Indebtedness on the
date of such default (a "Payment Default") or (ii) results in the acceleration
of such Indebtedness prior to its express maturity and, in each case, the
outstanding principal amount of any such Indebtedness, together with the
principal amount of any other such Indebtedness under which there has been a
Payment Default or the maturity of which has been so accelerated, aggregates
$5.0 million or more;
(f) failure by the Company or any of its Restricted
Subsidiaries to pay final judgments aggregating in excess of $5.0 million, which
judgments are not paid, discharged or stayed for a period of 60 days;
(g) except as permitted by this Indenture, any Note
Guarantee of a Guarantor is held in any judicial proceeding to be unenforceable
or invalid or ceases for any reason to be in full force and effect or any
Guarantor, or any Person acting on behalf of any Guarantor, denies or disaffirms
its obligations under its Note Guarantee (other than by reason of termination of
this Indenture or release of a Guarantor in accordance with this Indenture), and
such condition has continued for 30 days after written notice to the Company by
the Trustee;
(h) the Company or any of its Significant Subsidiaries or
any group of Restricted Subsidiaries that, taken as a whole, would constitute a
Significant Subsidiary, pursuant to or within the meaning of Bankruptcy Law:
(i) commences a voluntary case,
(ii) consents to the entry of an order for relief
against it in an involuntary case,
(iii) consents to the appointment of a custodian of it
or for all or substantially all of its property,
90
(iv) makes a general assignment for the benefit of its
creditors, or
(v) generally is not paying its debts as they become due;
(i) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that:
(i) is for relief against the Company or any of its
Significant Subsidiaries or any group of Subsidiaries that, taken as a
whole, would constitute a Significant Subsidiary in an involuntary case; or
(ii) appoints a Custodian of the Company or any of its
Significant Subsidiaries or any group of Subsidiaries that, taken as a
whole, would constitute a Significant Subsidiary or for all or
substantially all of the property of the Company or any of its Significant
Subsidiaries or any group of Subsidiaries that, taken as a whole, would
constitute a Significant Subsidiary; or
(iii) orders the liquidation of the Company or any of its
Significant Subsidiaries or any group of Subsidiaries that, taken as a
whole, would constitute a Significant Subsidiary;
and the order or decree remains unstayed and in effect for 60 consecutive
days;
(j) if after the Issue Date but on or prior to December 31,
2000, the Company has not received at least $70.0 million of gross cash proceeds
from one or more Equity Offerings (other than Equity Offerings of Disqualified
Stock of the Company and other than Equity Offerings to Restricted Subsidiaries
of the Company); and
(k) (i) if any Credit Facility is not in existence, any event
occurs that causes, subject to any applicable grace period or waiver, an Event
of Termination under any of the Sprint Agreements or (ii) if any Credit Facility
is in existence, Sprint shall have commenced to exercise any remedy under the
Sprint Agreements (other than Section 11.6.3 of the Management Agreement) by
reason of the occurrence of an Event of Termination.
91
Section 6.02 Acceleration.
------------
If any Event of Default (other than an Event of Default specified
in clause (h) or (i) of Section 6.01 hereof with respect to the Company), occurs
and is continuing, the Trustee or the Holders of at least 25% in principal
amount of the then outstanding Notes may declare to be immediately due and
payable (i) if prior to July 15, 2005, the Accreted Value or (ii) if on or after
July 15, 2005, the principal amount, in each case, of all Notes then
outstanding, plus accrued and unpaid interest to the date of acceleration.
Notwithstanding the foregoing, if an Event of Default specified in clause (h) or
(i) of Section 6.01 hereof occurs with respect to the Company, any of its
Significant Subsidiaries or any group of Subsidiaries that, taken as a whole,
would constitute a Significant Subsidiary, all outstanding Notes shall be due
and payable immediately without further action or notice. In order to effect
such acceleration, the Trustee or Holders of at least 25% in principal amount of
the then outstanding Notes shall deliver notice in writing to the Company and
the Trustee specifying the respective Event of Default and that such notice is a
"notice of acceleration" (the "Acceleration Notice"), and the same (A) shall
become immediately due and payable or (B) if there are any amounts outstanding
under the Credit Facilities, shall become immediately due and payable upon the
first to occur of an acceleration under the Credit Facilities or five Business
Days after receipt by the Company and the agent under the Credit Facilities of
such Acceleration Notice, but only if such Event of Default is then continuing.
Section 6.02 Other Remedies.
--------------
If an Event of Default occurs and is continuing, the Trustee may
pursue any available remedy to collect the payment of principal, premium, if
any, and interest on the Notes or to enforce the performance of any provision of
the Notes or this Indenture.
The Trustee may maintain a proceeding even if it does not possess
any of the Notes or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Holder of a Note in exercising any right or
remedy accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. All remedies are
cumulative to the extent permitted by law.
Section 6.04 Waiver of Past Defaults.
-----------------------
92
Holders of not less than a majority in aggregate principal amount
of the Notes then outstanding by notice to the Trustee may, on behalf of the
Holders of all of the Notes, waive an existing Default or Event of Default and
its consequences hereunder, except a continuing Default or Event of Default in
the payment of the principal of, premium and Liquidated Damages, if any, or
interest on, the Notes (including in connection with an offer to purchase)
(provided, however, that the Holders of a majority in aggregate principal amount
of the then outstanding Notes may rescind an acceleration and its consequences,
including any related payment default that resulted from such acceleration).
Upon any such waiver, such Default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured for every purpose
of this Indenture; but no such waiver shall extend to any subsequent or other
Default or impair any right consequent thereon.
Section 6.05 Control by Majority.
-------------------
Holders of a majority in principal amount of the then outstanding
Notes may direct the time, method and place of conducting any proceeding for
exercising any remedy available to the Trustee or exercising any trust or power
conferred on 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 other Holders of Notes or that may involve the
Trustee in personal liability; provided, however, that subject to Section 7.01
hereof, the Trustee shall have no duty or obligation to independently determine
whether such direction is unduly prejudicial to the rights of any Holders.
Section 6.06 Limitation on Suits.
-------------------
A Holder of a Note may pursue a remedy with respect to this
Indenture or the Notes only if:
(a) the Holder of a Note gives to the Trustee written
notice of a continuing Event of Default;
(b) the Holders of at least 25% in principal amount of the
then outstanding Notes make a written request to the Trustee to pursue the
remedy;
(c) such Holder of a Note or Holders of Notes offer and, if
requested, provide to the Trustee indemnity satisfactory to the Trustee against
any loss, liability or expense;
93
(d) 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
(e) during such 60-day period the Holders of a majority in
principal amount of the then outstanding Notes do not give the Trustee a
direction inconsistent with the request.
A Holder of a Note may not use this Indenture to prejudice the
rights of another Holder of a Note or to obtain a preference or priority over
another Holder of a Note.
Section 6.08 Rights of Holders of Notes to Receive Payment.
---------------------------------------------
Notwithstanding any other provision of this Indenture, the right
of any Holder of a Note to receive payment of principal, premium and Liquidated
Damages, if any, and interest on the Note, on or after the respective due dates
expressed in the Note (including in connection with an offer to purchase), 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 6.09 Collection Suit by Trustee.
--------------------------
If an Event of Default specified in Section 6.01(a) or (b) occurs
and is continuing, the Trustee is authorized to recover judgment in its own name
and as trustee of an express trust against the Company for the whole amount of
principal of, premium and Liquidated Damages, if any, and interest remaining
unpaid on the Notes and interest on overdue principal and, to the extent lawful,
interest 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 is authorized to 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
Holders of the Notes allowed
94
in any judicial proceedings relative to the Company (or any other obligor upon
the Notes), its creditors or its property and shall be entitled and empowered to
collect, receive and distribute any money or other property payable or
deliverable on any such claims and any custodian in any such judicial proceeding
is hereby authorized by each Holder 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 Holders, to pay to the Trustee any amount due to it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee under Section 7.07 hereof. To
the extent that the payment of any such compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel, and any other amounts due
the Trustee under Section 7.07 hereof out of the estate in any such proceeding,
shall be denied for any reason, payment of the same shall be secured by a Lien
on, and shall be paid out of, any and all distributions, dividends, money,
securities and other properties that the Holders may be entitled to receive in
such proceeding whether in liquidation or under any plan of reorganization or
arrangement or otherwise. Nothing herein contained shall be deemed to authorize
the Trustee to authorize or consent to or accept or adopt on behalf of any
Holder any plan of reorganization, arrangement, adjustment or composition
affecting the Notes or the rights of any Holder, or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding.
Section 6.10 Priorities.
----------
If the Trustee collects any money pursuant to this Article, it
shall pay out the money in the following order:
First: to the Trustee, its agents and attorneys for amounts due
under Section 7.07 hereof, including payment of all compensation, expense and
liabilities incurred, and all advances made, by the Trustee and the costs and
expenses of collection;
Second: to Holders of Notes for amounts due and unpaid on the
Notes for principal, premium and Liquidated Damages, if any, and interest,
ratably, without preference or priority of any kind, according to the amounts
due and payable on the Notes for principal, premium and Liquidated Damages, if
any and interest, respectively; and
Third: to the Company or to such party as a court of competent
jurisdiction shall direct.
95
The Trustee may fix a record date and payment date for any
payment to Holders of Notes 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 a 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, 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 does not apply to a suit by the Trustee, a suit by a Holder of a
Note pursuant to Section 6.07 hereof, or a suit by Holders of more than 10% in
principal amount of the then outstanding Notes.
ARTICLE VII
TRUSTEE
-------
Section 7.01 Duties of Trustee.
-----------------
(a) If an Event of 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 its exercise, as a
prudent man would exercise or use under the circumstances in the conduct of his
own affairs.
(b) Except during the continuance of an Event of Default:
(i) the duties of the Trustee shall be determined
solely by the express provisions of this Indenture and the Trustee need
perform only those duties that are specifically set forth in this Indenture
and no others, and no implied covenants or obligations shall be read into
this Indenture against the Trustee; and
(ii) in the absence of bad faith on its part, the
Trustee may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements of
this Indenture. However, the Trustee shall examine the certificates and
96
opinions to determine whether or not they conform to the requirements of
this Indenture.
(c) The Trustee may not be relieved from liabilities for
its own negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(i) this paragraph does not limit the effect of
paragraph (b) of this Section;
(ii) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless it is proved
that the Trustee was negligent in ascertaining the pertinent facts; and
(iii) the Trustee shall not be liable with respect to
any action it takes or omits to take in good faith in accordance with a
direction received by it pursuant to Section 6.05 hereof.
(d) Whether or not therein expressly so provided, every
provision of this Indenture that in any way relates to the Trustee is subject to
paragraphs (a), (b), (c), (e) and (f) of this Section and Section 7.02.
(e) No provision of this Indenture shall require the
Trustee to expend or risk its own funds or incur any liability. The Trustee
shall be under no obligation to exercise any of its rights and powers under this
Indenture at the request of any Holders, unless such Holder shall have offered
to the Trustee security and indemnity satisfactory to it against any loss,
liability or expense.
(f) The Trustee shall not be liable for interest on any
money received by it except as the Trustee may agree in writing with the
Company. Money held in trust by the Trustee need not be segregated from other
funds except to the extent required by law.
(g) The Trustee shall not be bound to make any
investigation into the facts or matters stated in any certificate or instrument
delivered to it, nor shall the Trustee be required to ascertain or inquire as to
the performance or compliance of the covenants and agreements to be performed or
observed by the Company.
97
(h) The Trustee shall not be required to post any bond or
surety.
(i) Except for a payment default, the Trustee shall not be
deemed to have notice of any Default or Event of Default unless specifically
notified in writing of such event by the Company or the Holders of not less than
25% of the principal amount of the Notes outstanding.
Section 7.02 Rights of Trustee.
-----------------
(a) The Trustee may conclusively rely upon 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
require an Officers' Certificate or an Opinion of Counsel or both. The Trustee
shall not be liable for any action it takes or omits to take in good faith in
reliance on such Officers' Certificate or Opinion of Counsel. The Trustee may
consult with counsel and the written advice of such counsel or any Opinion of
Counsel shall be full and complete authorization and protection from liability
in respect of any action taken, suffered or omitted by it hereunder in good
faith and in reliance thereon.
(c) The Trustee may act through its attorneys and agents
and shall not be responsible for the misconduct or negligence of any agent
appointed with due care.
(d) The Trustee shall not be liable for any action it takes
or omits to take in good faith that it believes to be authorized or within the
rights or powers conferred upon it by this Indenture.
(e) Unless otherwise specifically provided in this
Indenture, any demand, request, direction or notice from the Company shall be
sufficient if signed by an Officer of the Company.
(f) The Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders unless such Holders shall have offered to the
Trustee reasonable security or indemnity against the costs, expenses and
liabilities that might be incurred by it in compliance with such request or
direction.
98
Section 7.03 Individual Rights of Trustee.
----------------------------
The Trustee in its individual or any other capacity may become
the owner or pledgee of Notes and may otherwise deal with the Company or any
Affiliate of the Company with the same rights it would have if it were not
Trustee. However, in the event that the Trustee acquires any conflicting
interest it must eliminate such conflict within 90 days, apply to the SEC for
permission to continue as trustee or resign. Any Agent may do the same with like
rights and duties. The Trustee is also subject to Sections 7.10 and 7.11 hereof.
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 Notes, it
shall not be accountable for the Company's use of the proceeds from the Notes or
any money paid to the Company or upon the Company's direction under any
provision of this Indenture, it shall not be responsible for the use or
application of any money received by any Paying Agent other than the Trustee,
and it shall not be responsible for any statement or recital herein or any
statement in the Notes or any other document in connection with the sale of the
Notes or pursuant to this Indenture other than its certificate of
authentication.
Section 7.05 Notice of Defaults.
------------------
If a Default or Event of Default occurs and is continuing and if
it is actually known to the Trustee, the Trustee shall mail to Holders of Notes
a notice of the Default or Event of Default within 90 days after it occurs.
Except in the case of a Default or Event of Default in payment of principal of,
premium, if any, or interest on any Note, the Trustee may withhold the notice if
and so long as a committee of its Responsible Officers in good faith determines
that withholding the notice is in the interests of the Holders of the Notes.
Section 7.06 Reports by Trustee to Holders of the Notes.
------------------------------------------
Within 60 days after each July 15 beginning with July 15, 2000,
and for so long as Notes remain outstanding, the Trustee shall mail to the
Holders of the Notes a brief report dated as of such reporting date that
complies with TIA (S) 313(a) (but if no event described in TIA (S) 313(a) has
occurred within the twelve months preceding the reporting date, no report need
be transmitted). The Trustee also shall comply with TIA
99
(S) 313(b)(2). The Trustee shall also transmit by mail all reports as required
by TIA (S) 313(c).
A copy of each report at the time of its mailing to the Holders
of Notes shall be mailed to the Company and filed with the SEC and each stock
exchange on which the Notes are listed in accordance with TIA (S) 313(d). The
Company shall promptly notify the Trustee when the Notes are listed on any stock
exchange.
Section 7.07 Compensation and Indemnity.
--------------------------
The Company shall pay to the Trustee from time to time reasonable
compensation for its acceptance of this Indenture and services hereunder. 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 promptly
upon request for all reasonable disbursements, advances and expenses incurred or
made by it in addition to the compensation for its services. Such expenses
shall include the reasonable compensation, disbursements and expenses of the
Trustee's agents and counsel.
The Company shall indemnify the Trustee against any and all
losses, liabilities or expenses incurred by it arising out of or in connection
with the acceptance or administration of its duties under this Indenture,
including the costs and expenses of enforcing this Indenture against the Company
(including this Section 7.07) and defending itself or investigations against any
claim (whether asserted by the Company or any Holder or any other person) or
liability in connection with the exercise or performance of any of its powers or
duties hereunder, except to the extent any such loss, liability or expense or a
portion thereof may be attributable to its negligence or willful misconduct. The
Trustee shall notify the Company promptly of any claim for which it may seek
indemnity. Failure by the Trustee to so notify the Company shall not relieve the
Company of its obligations hereunder. The Company shall defend the claim and the
Trustee shall cooperate in the defense. The Trustee may have separate counsel
and the Company shall pay the reasonable fees and expenses of such counsel. The
Company need not pay for any settlement made without its consent, which consent
shall not be unreasonably withheld. The Company need not reimburse any expense
or indemnify against any loss liability or expense incurred by the Trustee
through the Trustee's own willful misconduct or negligence.
The obligations of the Company under this Section 7.07 shall
survive the satisfaction and discharge of this Indenture.
100
To secure the Company's payment obligations in this Section, the
Trustee shall have a Lien prior to the Notes on all money or property held or
collected by the Trustee, except that held in trust to pay principal and
interest on particular Notes. Such Lien shall survive the satisfaction and
discharge of this Indenture.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.01(h) or (i) hereof occurs, the expenses and the
compensation for the services (including the fees and expenses of its agents and
counsel) are intended to constitute expenses of administration under any
Bankruptcy Law.
The Trustee shall comply with the provisions of TIA (S) 313(b)(2) to
the extent applicable.
Section 7.08 Replacement of Trustee.
----------------------
A resignation or removal of the Trustee and appointment of a
successor Trustee shall become effective only upon the successor Trustee's
acceptance of appointment as provided in this Section.
The Trustee may resign in writing at any time and be discharged
from the trust hereby created by so notifying the Company. The Holders of Notes
of a majority in principal amount of the then outstanding Notes may remove the
Trustee by so notifying the Trustee and the Company in writing. The Company may
remove the Trustee if:
(a) the Trustee fails to comply with Section 7.10 hereof;
(b) the Trustee is adjudged a bankrupt or an insolvent or
an order for relief is entered with respect to the Trustee under any Bankruptcy
Law;
(c) a Custodian or public officer takes charge of the
Trustee or its property; or
(d) 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 Company shall promptly appoint a successor
Trustee. Within one year after the successor Trustee takes office, the Holders
of a majority in
101
principal amount of the then outstanding Notes may appoint a successor Trustee
to replace the successor Trustee appointed by the Company.
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 Notes of at least 10% in principal amount of the then outstanding
Notes may petition any court of competent jurisdiction for the appointment of a
successor Trustee.
If the Trustee, after written request by any Holder of a Note who has
been a Holder of a Note for at least six months, fails to comply with Section
7.10, such Holder of a Note may petition any court of competent jurisdiction for
the removal of the Trustee and the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon, the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee shall mail a notice of its
succession to Holders of the Notes. Subject to the Lien provided for in Section
7.07 hereof, the retiring Trustee shall promptly transfer all property held by
it as Trustee to the successor Trustee; provided, however, that all sums owing
to the Trustee hereunder shall have been paid. Notwithstanding replacement of
the Trustee pursuant to this Section 7.08, the Company's obligations under
Section 7.07 hereof shall continue for the benefit of the retiring Trustee.
Section 7.09 Successor Trustee by Merger, etc.
---------------------------------
If the Trustee consolidates, merges or converts into, or
transfers all or substantially all of its corporate trust business to, another
corporation, the successor corporation without any further act shall be the
successor Trustee.
Section 7.10 Eligibility; Disqualification.
-----------------------------
There shall at all times be a Trustee hereunder that is a
corporation or a trust company organized and doing business under the laws of
the United States of America or of any state thereof that is authorized under
such laws to exercise corporate trustee power, that is subject to supervision or
examination by federal or state authorities and that has a combined capital and
surplus of at least $70 million as set forth in its most recent published annual
report of condition.
102
This Indenture shall always have a Trustee who satisfies the
requirements of TIA (S) 310(a)(1), (2) and (5). The Trustee is subject to TIA
(S) 310(b).
Section 7.11 Preferential Collection of Claims Against Company.
-------------------------------------------------
The Trustee is subject to 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 VII
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
----------------------------------------
Section 8.01 Option to Effect Legal Defeasance or Covenant Defeasance.
--------------------------------------------------------
The Company may, at the option of its Board of Directors
evidenced by a resolution set forth in an Officers' Certificate, at any time,
elect to have either Section 8.02 or 8.03 hereof be applied to all outstanding
Notes upon compliance with the conditions set forth below in this Article VIII.
Section 8.02 Legal Defeasance and Discharge.
------------------------------
Upon the Company's exercise under Section 8.01 hereof of the
option applicable to this Section 8.02, the Company shall, subject to the
satisfaction of the conditions set forth in Section 8.04 hereof, be deemed to
have been discharged from its obligations with respect to all outstanding Notes
on the date the conditions set forth below are satisfied (hereinafter, "Legal
Defeasance"). For this purpose, Legal Defeasance means that the Company shall be
deemed to have paid and discharged the entire Indebtedness represented by the
outstanding Notes, which shall thereafter be deemed to be "outstanding" only for
the purposes of Section 8.05 hereof and the other Sections of this Indenture
referred to in (a) and (b) below, and to have satisfied all its other
obligations under such Notes and this Indenture (and the Trustee, on demand of
and at the expense of the Company, shall execute proper instruments
acknowledging the same), except for the following provisions which shall survive
until otherwise terminated or discharged hereunder: (a) the rights of Holders of
outstanding Notes to receive solely from the trust fund described in Section
8.04 hereof, and as more fully set forth in such Section, payments in respect of
the principal of, premium, if any, and interest and Liquidated Damages, if any,
on such Notes when such payments are due, (b) the Company's obligations with
respect to such Notes under Article II and Section
103
4.02 hereof, (c) the rights, powers, trusts, duties and immunities of the
Trustee hereunder and the Company's obligations in connection therewith and (d)
this Article VIII. Subject to compliance with this Article VIII, the Company may
exercise its option under this Section 8.02 notwithstanding the prior exercise
of its option under Section 8.03 hereof.
Section 8.03 Covenant Defeasance.
-------------------
Upon the Company's exercise under Section 8.01 hereof of the
option applicable to this Section 8.03, the Company shall, subject to the
satisfaction of the conditions set forth in Section 8.04 hereof, be released
from its obligations under the covenants contained in Sections 4.03, 4.07, 4.08,
4.09, 4.10, 4.11, 4.12, 4.13, 4.14, 4.15, 4.16, 4.17, 4.18, 4.19 and 4.20
hereof, and the operation of Section 5.01 hereof, with respect to the
outstanding Notes on and after the date the conditions set forth in Section 8.04
are satisfied (hereinafter, "Covenant Defeasance"), and the Notes shall
thereafter be deemed not "outstanding" for the purposes of any direction,
waiver, consent or declaration or act of Holders (and the consequences of any
thereof) in connection with such covenants, but shall continue to be deemed
"outstanding" for all other purposes hereunder (it being understood that such
Notes shall not be deemed outstanding for accounting purposes). For this
purpose, Covenant Defeasance means that, with respect to the outstanding Notes,
the Company may omit to comply with and shall have no liability in respect of
any term, condition or limitation set forth in any such covenant, whether
directly or indirectly, by reason of any reference elsewhere herein to any such
covenant or by reason of any reference in any such covenant to any other
provision herein or in any other document and such omission to comply shall not
constitute a Default or an Event of Default under Section 6.01 hereof, but,
except as specified above, the remainder of this Indenture and such Notes shall
be unaffected thereby. In addition, upon the Company's exercise under Section
8.01 hereof of the option applicable to this Section 8.03 hereof, subject to the
satisfaction of the conditions set forth in Section 8.04 hereof, Sections
6.01(c) through 6.01(g) hereof shall not constitute Events of Default.
Section 8.04 Conditions to Legal or Covenant Defeasance.
------------------------------------------
The following shall be the conditions to the application of
either Section 8.02 or 8.03 hereof to the outstanding Notes. In order to
exercise either Legal Defeasance or Covenant Defeasance:
(a) the Company must irrevocably deposit with the Trustee,
in trust, for the benefit of the Holders, cash in United States dollars, non-
callable
104
Government Securities, or a combination thereof, in such amounts as shall be
sufficient, in the opinion of a nationally recognized firm of independent public
accountants, to pay the principal of, premium, if any, and interest, if any, on
the outstanding Notes on the stated date for payment thereof or on the
applicable redemption date, as the case may be, and the Company must specify
whether the Notes are being defeased to maturity or to a particular redemption
date;
(b) in the case of an election under Section 8.02 hereof,
the Company shall have delivered to the Trustee an Opinion of Counsel in the
United States reasonably acceptable to the Trustee confirming that (A) the
Company has received from, or there has been published by, the Internal Revenue
Service a ruling or (B) since the date of this Indenture, there has been a
change in the applicable federal income tax law, in either case to the effect
that, and based thereon such Opinion of Counsel shall confirm that, the Holders
of the outstanding Notes shall not recognize income, gain or loss for federal
income tax purposes as a result of such Legal Defeasance and shall be subject to
federal income tax on the same amounts, in the same manner and at the same times
as would have been the case if such Legal Defeasance had not occurred;
(c) in the case of an election under Section 8.03 hereof,
the Company shall have delivered to the Trustee an Opinion of Counsel in the
United States reasonably acceptable to the Trustee confirming that the Holders
of the outstanding Notes shall not recognize income, gain or loss for federal
income tax purposes as a result of such Covenant Defeasance and shall be subject
to federal income tax on the same amounts, in the same manner and at the same
times as would have been the case if such Covenant Defeasance had not occurred;
(d) no Default or Event of Default shall have occurred and
be continuing either: (ii) on the date of such deposit other than a Default or
Event of Default resulting from the borrowing of funds to be applied to such
deposit, or (ii) under Sections 6.01(h) or 6.01(i) hereof at any time in the
period ending on the 91st day after the date of deposit;
(e) such Legal Defeasance or Covenant Defeasance shall not
result in a breach or violation of, or constitute a default under, any material
agreement or instrument (other than this Indenture) to which the Company or any
of its Restricted Subsidiaries is a party or by which the Company or any of its
Restricted Subsidiaries is bound;
105
(f) the Company shall have delivered to the Trustee an
Opinion of Counsel (which may be subject to customary exceptions) to the effect
that, assuming no intervening bankruptcy of the Company between the date of
deposit and the 91st day following the deposit and assuming that no Holder is an
"insider" of the Company under applicable Bankruptcy Law, after the 91st day
following the deposit, the trust funds shall not be subject to the effect of any
applicable bankruptcy, insolvency, reorganization or similar laws affecting
creditors' rights generally;
(g) the Company shall have delivered to the Trustee an
Officers' Certificate stating that the deposit was not made by the Company with
the intent of preferring the Holders over any other creditors of the Company or
with the intent of defeating, hindering, delaying or defrauding any other
creditors of the Company or others; and
(h) the Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent provided for or relating to the Legal Defeasance or the
Covenant Defeasance have been complied with.
Section 8.05 Deposited Money and Government Securities to be Held in Trust;
--------------------------------------------------------------
Other Miscellaneous Provisions.
------------------------------
Subject to Section 8.06 hereof, all money and non-callable
Government Securities (including the proceeds thereof) deposited with the
Trustee (or other qualifying trustee, collectively for purposes of this Section
8.05, the "Trustee") pursuant to Section 8.04 hereof in respect of the
outstanding Notes shall be held in trust and applied by the Trustee, in
accordance with the provisions of such Notes and this Indenture, to the payment,
either directly or through any Paying Agent (including the Company acting as
Paying Agent) as the Trustee may determine, to the Holders of such Notes of all
sums due and to become due thereon in respect of principal, premium, if any, and
interest, but such money need not be segregated from other funds except to the
extent required by law.
The Company shall pay and indemnify the Trustee against any tax,
fee or other charge imposed on or assessed against the cash or non-callable
Government Securities deposited pursuant to Section 8.04 hereof 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 the outstanding Notes.
106
Anything in this Article VIII to the contrary notwithstanding,
the Trustee shall deliver or pay to the Company from time to time upon the
request of the Company any money or non-callable Government Securities held by
it as provided in Section 8.04 hereof which, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee (which may be the opinion
delivered under Section 8.04(a) hereof), are in excess of the amount thereof
that would then be required to be deposited to effect an equivalent Legal
Defeasance or Covenant Defeasance.
Section 8.06 Repayment to Company.
--------------------
Any money deposited with the Trustee or any Paying Agent, or then
held by the Company, in trust for the payment of the principal of, premium, if
any, or interest or Liquidated Damages, if any, on any Note and remaining
unclaimed for two years after such principal, and premium, if any, or interest
or Liquidated Damages, if any, has become due and payable shall be paid to the
Company on its request or (if then held by the Company) shall be discharged from
such trust; and the Holder of such Note shall thereafter, as an unsecured
creditor, look only to the Company for payment thereof, and all liability of the
Trustee or such Paying Agent with respect to such trust money, and all liability
of the Company as trustee thereof, shall thereupon cease; provided, however,
that the Trustee or such Paying Agent, before being required to make any such
repayment, may at the expense of the Company cause to be published once, in The
New York Times and The Wall Street Journal (national edition), notice that such
money remains unclaimed and that, after a date specified therein, which shall
not be less than 30 days from the date of such notification or publication, any
unclaimed balance of such money then remaining shall be repaid to the Company.
Section 8.07 Reinstatement.
-------------
If the Trustee or Paying Agent is unable to apply any United
States dollars or non-callable Government Securities in accordance with Section
8.02 or 8.03 hereof, as the case may be, by reason of any order or judgment of
any court or governmental authority enjoining, restraining or otherwise
prohibiting such application, then the Company's obligations under this
Indenture and the Notes shall be revived and reinstated as though no deposit had
occurred pursuant to Section 8.02 or 8.03 hereof until such time as the Trustee
or Paying Agent is permitted to apply all such money in accordance with Section
8.02 or 8.03 hereof, as the case may be; provided, however, that, if the Company
makes any payment of principal of, premium, if any, or interest or Liquidated
Damages, if any, on any Note following the reinstatement of its obligations,
107
the Company shall be subrogated to the rights of the Holders of such Notes to
receive such payment from the money held by the Trustee or Paying Agent.
ARTICLE VII
AMENDMENT, SUPPLEMENT AND WAIVER
--------------------------------
Section 9.01 Without Consent of Holders of Notes.
-----------------------------------
Notwithstanding Section 9.02 of this Indenture, the Company and
the Trustee may amend or supplement this Indenture or the Notes without the
consent of any Holder of a Note:
(a) to cure any ambiguity, defect or inconsistency;
(b) to provide for uncertificated Notes in addition to or
in place of certificated Notes or to alter the provisions of Article II hereof
(including the related definitions) in a manner that does not materially
adversely affect any Holder;
(c) to provide for the assumption of the Company's or any
Guarantor's obligations to the Holders of the Notes by a successor to the
Company pursuant to Article V hereof;
(d) to make any change that would provide any additional
rights or benefits to the Holders of the Notes or that does not adversely affect
the legal rights hereunder of any Holder of the Note;
(e) to comply with requirements of the SEC in order to
effect or maintain the qualification of this Indenture under the TIA;
(f) to add a Guarantor pursuant to Section 12.02; and
(g) to evidence and provide the acceptance of the
appointment of a successor Trustee pursuant to Section 7.08 and 7.09.
Upon the request of the Company accompanied by a resolution of its
Board of Directors authorizing the execution of any such amended or supplemental
Indenture, and upon receipt by the Trustee of the documents described in Section
7.02 hereof, the Trustee shall join with the Company in the execution of any
amended or
108
supplemental Indenture authorized or permitted by the terms of this Indenture
and to make any further appropriate agreements and stipulations that may be
therein contained, but the Trustee shall not be obligated to enter into such
amended or supplemental Indenture that affects its own rights, duties or
immunities under this Indenture or otherwise.
Section 9.02 With Consent of Holders of Notes.
--------------------------------
Except as provided below in this Section 9.02, the Company and
the Trustee may amend or supplement this Indenture and the Notes may be amended
or supplemented with the consent of the Holders of at least a majority in
aggregate Accreted Value of the Notes the outstanding if prior to July 15, 2005,
or the aggregate principal amount at maturity of the Notes then outstanding if
after July 15, 2005 voting as a single class (including without limitation,
consents obtained in connection with a purchase of, tender offer or exchange
offer for, the Notes), and, subject to Sections 6.04 and 6.07 hereof, any
existing Default or Event of Default (other than a Default or Event of Default
in the payment of the principal of, premium, if any, or interest or Liquidated
Damages, if any, on the Notes, except a payment default resulting from an
acceleration that has been rescinded) or compliance with any provision of this
Indenture or the Notes may be waived with the consent of the Holders of a
majority in aggregate Accreted Value of the then outstanding Notes voting as a
single class (including without limitation, consents obtained in connection with
a purchase of, tender offer or exchange offer for, the Notes).
Upon the request of the Company accompanied by a Board Resolution
authorizing the execution of any such amended or supplemental indenture, and
upon the filing with the Trustee of evidence satisfactory to the Trustee of the
consent of the Holders of Notes as aforesaid, and upon receipt by the Trustee of
the documents described in Section 7.02 hereof, the Trustee shall join with the
Company in the execution of such amended or supplemental indenture unless such
amended or supplemental indenture directly affects the Trustee's own rights,
duties or immunities under this Indenture or otherwise, in which case the
Trustee may in its discretion, but shall not be obligated to, enter into such
amended or supplemental indenture.
It shall not be necessary for the consent of the Holders of Notes
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.
109
After an amendment, supplement or waiver under this Section
becomes effective, the Company shall mail to the Holders of Notes affected
thereby a notice briefly describing the amendment, supplement or waiver. Any
failure of the Company to mail such notice, or any defect therein, shall not,
however, in any way impair or affect the validity of any such amended or
supplemental Indenture or waiver. However, without the consent of each Holder
adversely affected, an amendment or waiver under this Section 9.02 may not (with
respect to any Notes held by a non-consenting Holder):
(a) reduce the Accreted Value of the then outstanding Notes
if prior to July 15, 2005 or the aggregate principal amount of Notes if after
July 15, 2005 whose Holders must consent to an amendment, supplement or waiver;
(b) reduce the principal of or change the fixed maturity of
any Note or alter any of the provisions with respect to the redemption of the
Notes except as provided above with respect to Sections 3.09, 4.10 and 4.14
hereof;
(c) reduce the rate of or change the time for payment of
interest on any Note;
(d) waive a Default or Event of Default in the payment of
principal of or premium, if any, or interest or Liquidated Damages, if any, on
the Notes (except a rescission of acceleration of the Notes by the Holders of at
least a majority in aggregate principal amount of the then outstanding Notes and
a waiver of the payment default that resulted from such acceleration);
(e) make any Note payable in money other than that stated
in the Notes;
(f) make any change in the provisions of this Indenture
relating to waivers of past Defaults or the rights of Holders of Notes to
receive payments of principal of or premium, if any, or interest or Liquidated
Damages, if any, on the Notes;
(g) waive a redemption payment with respect to any Note
(other than a payment required by Sections 3.09, 4.10 and 4.14 hereof); or
(h) make any change in Section 6.04 or 6.07 hereof or in
the foregoing amendment and waiver provisions.
110
Section 9.03 Compliance with Trust Indenture Act.
-----------------------------------
Every amendment or supplement to this Indenture or the Notes
shall be set forth in a amended or supplemental Indenture that complies with the
TIA as then in effect.
Section 9.04 Revocation and Effect of Consents.
---------------------------------
Until an amendment, supplement or waiver becomes effective, a
consent to it by a Holder of a Note is a continuing consent by the Holder of a
Note and every subsequent Holder of a Note or portion of a Note that evidences
the same debt as the consenting Holder's Note, even if notation of the consent
is not made on any Note. However, any such Holder of a Note or subsequent Holder
of a Note may revoke the consent as to its Note if the Trustee receives written
notice of revocation before the date the waiver, supplement or amendment becomes
effective. An amendment, supplement or waiver becomes effective in accordance
with its terms and thereafter binds every Holder.
Section 9.05 Notation on or Exchange of Notes.
--------------------------------
The Trustee may place an appropriate notation about an amendment,
supplement or waiver on any Note thereafter authenticated. The Company in
exchange for all Notes may issue and the Trustee shall, upon receipt of an
Authentication Order, authenticate new Notes that reflect the amendment,
supplement or waiver.
Failure to make the appropriate notation or issue a new Note
shall not affect the validity and effect of such amendment, supplement or
waiver.
Section 9.06 Trustee to Sign Amendments, etc.
--------------------------------
The Trustee shall sign any amended or supplemental Indenture
authorized pursuant to this Article IX if the amendment or supplement does not
adversely affect the rights, duties, liabilities or immunities of the Trustee.
The Company may not sign an amendment or supplemental Indenture until the Board
of Directors approves it. In executing any amended or supplemental Indenture,
the Trustee shall be entitled to receive and (subject to Section 7.01 hereof)
shall be fully protected in relying upon, in addition to the documents required
by Section 10.04 hereof, an Officer's Certificate and an Opinion of Counsel
stating that the execution of such amended or supplemental Indenture is
authorized or permitted by this Indenture.
111
ARTICLE X
MISCELLANEOUS
-------------
Section 10.01 Trust Indenture Act Controls.
----------------------------
If any provision of this Indenture limits, qualifies or conflicts
with the duties imposed by TIA (S) 318(c), the imposed duties shall control.
Section 10.02 Notices.
-------
Any notice or communication by the Company or the Trustee to the
others is duly given if in writing and delivered in Person or mailed by first
class mail (registered or certified, return receipt requested), telex,
telecopier or overnight air courier guaranteeing next-day delivery, to the
others' address:
If to the Company:
iPCS, Inc.
000 Xxxx Xxxxx Xxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx Xxxxx
Telecopy No.: (000) 000-0000
With copies to:
Xxxxx, Xxxxx & Xxxxx
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxx X. Xxxxxx
Xxxxxx X. Wild
Telecopy No.: (000) 000-0000
112
If to the Trustee:
CTC Illinois Trust Company
0 Xxxxx XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Telecopier No.: (000) 000-0000
Attention: Corporate Trust
The Company or the Trustee, by notice to the others 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 answered back, if telexed; when receipt
acknowledged, if telecopied; and the next Business Day after timely delivery to
the courier, if sent by overnight air courier guaranteeing next day delivery.
Any notice or communication to a Holder shall be mailed by first
class mail, certified or registered, return receipt requested, or by overnight
air courier guaranteeing next day delivery to its address shown on the register
kept by the Registrar. Any notice or communication shall also be so mailed to
any Person described in TIA (S) 313(c), to the extent required by the TIA.
Failure to mail a notice or communication to a Holder or any defect in it shall
not affect its sufficiency with respect to other Holders.
If a notice or communication is mailed in the manner provided
above within the time prescribed, it is duly given, whether or not the addressee
receives it.
If the Company mails a notice or communication to Holders, it
shall mail a copy to the Trustee and each Agent at the same time.
Section 10.03 Communication by Holders of Notes with Other Holders of Notes.
-------------------------------------------------------------
Holders may communicate pursuant to TIA (S) 312(b) with other
Holders with respect to their rights under this Indenture or the Notes. The
Company, the Trustee, the Registrar and anyone else shall have the protection of
TIA (S) 312(c).
113
Section 10.04 Certificate and Opinion as to Conditions Precedent.
--------------------------------------------------
Upon any request or application by the Company to the Trustee to
take any action under this Indenture, the Company shall furnish to the Trustee:
(a) an Officers' Certificate in form and substance
reasonably satisfactory to the Trustee (which shall include the statements set
forth in Section 10.05 hereof) stating that, in the opinion of the signers, all
conditions precedent and covenants, if any, provided for in this Indenture
relating to the proposed action have been satisfied; and
(b) an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set forth in
Section 10.05 hereof) stating that, in the opinion of such counsel, all such
conditions precedent and covenants have been satisfied.
Section 10.05 Statements Required in Certificate or Opinion.
---------------------------------------------
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than a certificate
provided pursuant to TIA (S) 314(a)(4)) shall comply with the provisions of TIA
(S) 314(e) and shall include:
(a) a statement that the Person making such certificate or
opinion has read such covenant or condition;
(b) 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;
(c) a statement that, in the opinion of such Person, he or
she 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 satisfied; and
(d) a statement as to whether or not, in the opinion of
such Person, such condition or covenant has been satisfied.
114
Section 10.06 Rules by Trustee and Agents.
---------------------------
The Trustee may make reasonable rules for action by or at a
meeting of Holders. The Registrar or Paying Agent may make reasonable rules and
set reasonable requirements for its functions.
Section 10.07 No Personal Liability of Directors, Officers, Employees and
-----------------------------------------------------------
Stockholders.
------------
No past, present or future director, officer, employee,
incorporator or stockholder of the Company or any Guarantor, as such, shall have
any liability for any obligations of the Company or any Guarantor under the
Notes, the Note Guarantees, this Indenture or for any claim based on, in respect
of, or by reason of, such obligations or their creation. Each Holder by
accepting a Note waives and releases all such liability. The waiver and release
are part of the consideration for issuance of the Notes and the Note Guarantees.
Such waiver may not be effective to waive liabilities under the federal
securities laws and it is the view of the SEC that such a waiver is against
public policy.
Section 10.08 Governing Law.
-------------
THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE
USED TO CONSTRUE THIS INDENTURE AND THE NOTES WITHOUT GIVING EFFECT TO
APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF
THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
Section 10.09 No Adverse Interpretation of Other Agreements.
---------------------------------------------
This Indenture may not be used to interpret any other indenture,
loan or debt agreement of the Company or its Subsidiaries or of any other
Person. Any such indenture, loan or debt agreement may not be used to interpret
this Indenture.
Section 10.10 Successors.
----------
All agreements of the Company in this Indenture and the Notes
shall bind its successors. All agreements of the Trustee in this Indenture shall
bind its successors.
115
Section 10.11 Severability.
------------
In case any provision in this Indenture or in the Notes 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 10.12 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 10.13 Table of Contents, Headings, etc.
---------------------------------
The Table of Contents, Cross-Reference Table and Headings of the
Articles and Sections of this Indenture have been inserted for convenience of
reference only, are not to be considered a part of this Indenture and shall in
no way modify or restrict any of the terms or provisions hereof.
ARTICLE XI
SUBORDINATION OF NOTE GUARANTEES
--------------------------------
Section 11.01 Agreement To Subordinate.
------------------------
Each Guarantor agrees, and each Holder by accepting a Note
agrees, that the Indebtedness evidenced by each Note Guarantee is subordinated
in right of payment, to the extent and in the manner provided herein, to the
prior payment in full of all Senior Debt of such Guarantor (whether outstanding
on the date hereof or hereafter created, incurred, assumed or guaranteed), and
that the subordination is for the benefit of the holders of such Senior Debt.
Section 10.02 Liquidation; Dissolution; Bankruptcy.
------------------------------------
Upon (a) any distribution to creditors of any Guarantor in a
liquidation or dissolution of such Guarantor or in a bankruptcy, reorganization,
insolvency, receivership or similar proceeding relating to such Guarantor or its
property or (b) an assignment for the benefit of creditors or any marshaling of
such Guarantor's assets and liabilities:
116
(i) the holders of Senior Debt of such
Guarantor shall be entitled to receive payment in full of all
Obligations due in respect of such Senior Debt (including
interest after the commencement of any such proceeding, whether
or not allowed, at the rate specified in the applicable Senior
Debt) in cash or Cash Equivalents before Holders shall be
entitled to receive any payment with respect to the Guarantee
Obligations of such Guarantor (except that Holders may receive
and retain Permitted Junior Securities); and
(ii) until all Obligations with respect to
Senior Debt of such Guarantor (as provided in clause (i) above)
are paid in full, any distribution to which the Holders would be
entitled with respect to the Guarantee Obligations of such
Guarantor but for this Article XI shall be made to holders of
Senior Debt of such Guarantor (except that the Holders may
receive and retain Permitted Junior Securities), as their
interests may appear to the extent necessary to make payment in
full on all Obligations with respect to such Senior Debt
remaining unpaid, after giving effect to all concurrent payments
or distributions to the holders of such Senior Debt.
The consolidation of any Guarantor with, or the merger of any
Guarantor into, another Person or the liquidation or dissolution of any
Guarantor following the conveyance, transfer or lease of its properties and
assets substantially as an entirety to another Person upon the terms and
conditions set forth in the Indenture shall not be deemed a dissolution, winding
up, liquidation, reorganization, assignment for the benefit of creditors or
marshaling of assets and liabilities of such Guarantor for the purposes of this
Section if the Person formed by such consolidation or into which such Guarantor
is merged or the Person which acquires by conveyance, transfer or lease such
properties and assets substantially as an entirety, as the case may be, shall,
as a part of such consolidation, merger, conveyance, transfer or lease, comply
with the conditions set forth in the Indenture.
Section 11.03 Default On Designated Senior Debt.
---------------------------------
No Guarantor shall make any payment or distribution to the
Trustee or any Holder upon or in respect of its Guarantee Obligations other than
payments in Permitted Junior Securities if:
117
(a) a default in the payment of any principal of, or
premium, if any, or interest on any Designated Senior Debt of such Guarantor
occurs and is continuing beyond any applicable grace period in the agreement,
indenture or other document governing such Designated Senior Debt (whether upon
maturity, as a result of acceleration or otherwise); or
(b) any other default occurs and is continuing with respect
to any such Designated Senior Debt that permits holders of such Designated
Senior Debt as to which such default relates to accelerate its maturity, and
such Guarantor and the Trustee receive written notice of such default (a
"Payment Blockage Notice") from a majority of the holders, or from the trustee,
agent or other representative (the "Representative") of the holders, of any such
Designated Senior Debt. If the Trustee receives any such notice, a subsequent
notice received within 360 days thereafter shall not be effective for purposes
of this Section. No nonpayment default that existed or was continuing on the
date of delivery of any Payment Blockage Notice to the Trustee shall be, or be
made, the basis for a subsequent Payment Blockage Notice unless such default
shall have been cured or waived for a period of not less than 90 days.
Notwithstanding anything herein to the contrary, each Guarantor
may and shall resume payments on and distributions in respect of its Guarantee
Obligations including the payment of any amounts previously blocked by such
Payment Blockage Notice upon the earlier of:
(i) in the case of a default referred to
in clause (a) of this Section 11.03, the date upon which the
default is cured or waived or ceases to exist, or
(ii) in the case of a default referred to
in clause (b) of this Section 11.03, 179 days after the date on
which the applicable Payment Blockage Notice is received or such
earlier date on which the applicable Payment Blockage Notice is
earlier terminated (a) by written notice to the Trustee and such
Guarantor from such Representative or the majority of the holders
of such Designated Senior Debt, (b) because such default is no
longer continuing or (c) because such Designated Senior Debt has
been discharged or repaid in full, unless the maturity of any
Designated Senior Debt has been accelerated and such acceleration
remains in full force and effect.
118
Section 11.04 Payment Permitted if No Default
-------------------------------
Nothing contained in this Article XI or elsewhere in this
Indenture, in any of the Notes or in any Note Guarantee shall prevent any
Guarantor at any time except during the pendency of any case, proceedings,
dissolution, liquidation or other winding up, assignment for the benefit of
creditors or other marshaling of assets and liabilities of any such Guarantor
referred to in Section 11.02 or under the conditions described in Section 11.03,
from making payments at any time of the Guarantee Obligations of such Guarantor.
Section 11.05 Acceleration of Notes.
---------------------
If payment of the Notes is accelerated because of an Event of
Default, the Company shall promptly notify holders of Senior Debt of the
acceleration.
Section 11.06 When distribution must be paid over.
-----------------------------------
In the event that any Holder receives any payments of any Note
Guarantee of any Guarantor at a time when such payment is prohibited by Section
11.03 hereof, such payment shall be held by such Holder in trust for the benefit
of, and, upon written request of the Representative of the holders of Senior
Debt of such Guarantor, shall be paid forthwith over and delivered to, the
holders of Senior Debt of such Guarantor under any indenture or other agreement
(if any) pursuant to which such Senior Debt may have been issued, as their
interest may appear, for application to the payment of all Obligations with
respect to such Senior Debt remaining unpaid to the extent necessary to pay such
Obligations in full in accordance with their terms, after giving effect to any
concurrent payment or distribution to or for the holders of such Senior Debt.
If a distribution is made to any Holder that because of this
Article XI should not have been made to it, such Holder who receives the
distribution shall hold it in trust for the benefit of, and upon written request
of the Representative of the holders of the applicable Senior Debt pay it over
to, the holders of such Senior Debt under any indenture or other agreement (if
any) pursuant to which such Senior Debt may have been issued, as their interest
may appear, for application to the payment of all Obligations with respect to
such Senior Debt remaining unpaid to the extent necessary to pay such
Obligations in full in accordance with their terms, after giving effect to any
concurrent payment or distribution to or for the holders of such Senior Debt.
119
With respect to the holders of Senior Debt, the Trustee
undertakes to perform only such obligations on the part of the Trustee as are
specifically set forth in this Article XI, and no implied covenants or
obligations with respect to the holders of Senior Debt shall be read into this
Indenture against the Trustee. The Trustee shall not be deemed to owe any
fiduciary duty to the holders of Senior Debt, and shall not be liable to any
such holders if the Trustee shall in good faith mistakenly pay over or
distribute to or on behalf of Holders or the Company or any other person money
or assets to which any holders of Senior Debt shall be entitled by virtue of
this Article XI.
Section 11.07 Notice By The Company.
---------------------
The Company shall promptly notify the Trustee and the Paying
Agent of any facts known to it that would cause a payment of any Guarantee
Obligations to violate this Article XI, but failure to give such notice shall
not affect the subordination of the Guarantee Obligations to Senior Debt as
provided in this Article XI.
Section 11.08 Subrogation.
-----------
After all Senior Debt of a Guarantor is paid in full and until
the Notes are paid in full, the Holders shall be subrogated to the rights of
holders of such Senior Debt to receive payments or distributions applicable to
such Senior Debt to the extent that payments or distributions otherwise payable
to the Holders have been applied to the payment of such Senior Debt. For the
purposes of such subrogation, no such payments or distributions to the holders
of such Senior Debt by or on behalf of such Guarantor to which the Holders or
the Trustee would otherwise be entitled except for the provisions of this
Article XI, and no payments pursuant to the provisions of this Article XI to the
holders of such Senior Debt by the Holders or the Trustee, or by or on behalf of
the Holders by virtue of this Article XI which otherwise would have been made to
the Holders shall, as between the relevant Guarantor and the Holders of the
Notes, be deemed to be a payment by such Guarantor to or on account of such
Senior Debt, it being understood that the provisions of this Article XI are and
are intended solely for the purpose of defining the relative rights of the
Holders on the one hand, and the holders of the Senior Debt, on the other hand.
Section 11.09 Relative Rights.
---------------
This Article XI defines the relative rights of the Holders and
holders of Senior Debt of a Guarantor. Nothing in this Indenture shall:
120
(a) impair, as between any Guarantor and the Holders, the
obligations of such Guarantor, which are absolute and unconditional, to pay its
Guarantee Obligations in accordance with their terms;
(b) affect the relative rights of the Holders and the
creditors of any Guarantor other than their rights in relation to the holders of
Senior Debt of such Guarantor; or
(c) prevent the Trustee or any Holder from exercising its
available remedies upon a default by a Guarantor under its Guarantee
Obligations, subject to the rights of holders and owners of Senior Debt of such
Guarantor to receive distributions and payments otherwise payable to Holders
pursuant to this Article XI.
If any Guarantor fails because of this Article XI to pay any
Guarantee Obligation on the due date, such failure shall still constitute a
Default or Event of Default.
Section 11.10 Subordination May Not Be Impaired By The Guarantors.
---------------------------------------------------
(a) No right of any holder of Senior Debt of any Guarantor
to enforce the subordination of the Indebtedness evidenced by the Guarantee
Obligations of such Subsidiary shall be impaired by any act or failure to act by
such Guarantor or any Holder or by the failure of such Guarantor, the Trustee or
any Holder to comply with this Indenture.
(b) Without in any way limiting the generality of paragraph
(a) of this Section, the holders of Senior Debt may, at any time and from time
to time, without the consent of or notice to the Trustee or the Holders of the
Notes, without incurring responsibility to the Holders and without impairing or
releasing the subordination provided in this Article or the obligations
hereunder of the Holders to the Senior Debt, do any one or more of the
following: (i) change the manner, place or terms of payment or extend the time
of payment of, or renew or alter, Senior Debt or any instrument evidencing the
same or any agreement under which Senior Debt is outstanding; (ii) sell,
exchange, release or otherwise deal with any property pledged, mortgaged or
otherwise securing Senior Debt; (iii) release any Person liable in any manner
for the collection of Senior Debt; and (iv) exercise or refrain from exercising
any rights against the Company, any Guarantor and any other Person. Nothing
contained in this Section 11.10(b) shall relieve the Company or any of its
Restricted Subsidiaries of their covenants and agreements contained elsewhere in
this Indenture.
121
Section 11.11 Distribution Or Notice To Representative.
----------------------------------------
Whenever a distribution is to be made or a notice given to
holders of Senior Debt of any Guarantor, the distribution may be made and the
notice given to their Representative.
Upon any payment or distribution of assets of any Guarantor
referred to in this Article XI, the Trustee, subject to TIA Sections 315(a)
through 315(d), and the Holders shall be entitled to rely upon any order or
decree made by any court of competent jurisdiction or upon any certificate of
such Representative of the applicable Senior Debt of such Guarantor or of the
liquidating trustee or agent or other person making any distribution to the
Trustee or to the Holders for the purpose of ascertaining the persons entitled
to participate in such distribution, the holders of such Senior Debt and other
Indebtedness of such Guarantor, the amount thereof or payable thereon, the
amount or amounts paid or distributed thereon and all other facts pertinent
thereto or to this Article XI.
Section 11.12 Rights Of Trustee And Paying Agent.
----------------------------------
Regardless of anything to the contrary contained in this Article
XI or elsewhere in this Indenture, the Trustee shall not be charged with
knowledge of the existence of any default or event of default with respect to
any Senior Debt of any Guarantor or of any other facts which would prohibit the
making of any payment to or by the Trustee unless and until a Responsible
Officer of the Trustee shall have received notice in writing from the Company,
or from the majority holders of the applicable Senior Debt or a Representative
therefor satisfactory to it that payments may not be made pursuant to this
Article XI, together with proof satisfactory to the Trustee of such holding of
Senior Debt or of the authority of such Representative, and, prior to the
receipt of any such written notice, the Trustee, subject to TIA Sections 315(a)
through 315(d), shall be entitled to assume (in the absence of actual knowledge
to the contrary) that no such facts exist.
In the event that the Trustee determines in good faith that any
evidence is required with respect to the right of any Person as a holder of
Senior Debt of any Guarantor to participate in any payment or distribution
pursuant to this Article XI, the Trustee may request such Person to furnish
evidence to the reasonable satisfaction of the Trustee as to the amounts of such
Senior Debt held by such Person, the extent to which such Person is entitled to
participate in such payment or distribution and any other facts
122
pertinent to the rights of such Person under this Article XI and if such
evidence is not furnished the Trustee may defer any payment to such Person
pending judicial determination as to the right of such Person to receive such
payment.
The Trustee in its individual or any other capacity may hold
Senior Debt with the same rights it would have if it were not Trustee. Any Agent
may do the same with like rights.
Section 11.13 Article XI Not To Prevent Events of Default Under A Note
--------------------------------------------------------
Guarantee or Limit Right to Demand Payment.
------------------------------------------
The failure to make a payment pursuant to a Note Guarantee by
reason of any provision in this Article XI shall not be construed as preventing
the occurrence of a default under such Note Guarantee. Nothing in this Article
XI shall have any effect on the right of the Holders or the Trustee to make a
demand for payment on any Note Guarantee pursuant to the Indenture or the
relevant Note Guarantee.
Section 11.14 Authorization To Effect Subordination.
-------------------------------------
Each Holder of Notes by such Holder's acceptance thereof
authorizes and directs the Trustee on such Holder's behalf to take such action
as may be necessary or appropriate to effectuate the subordination as provided
in this Article XI, and appoints the Trustee such Holder's attorney-in-fact for
any and all such purposes.
Section 11.15 Article Applicable to Paying Agents.
-----------------------------------
In case at any time any Paying Agent other than the Trustee shall
have been appointed by the Company and be then acting hereunder, the term
"Trustee" as used in this Article shall in such case (unless the context
otherwise requires) be construed as extending to and including such Paying Agent
within its meaning as fully for all intents and purposes as if such Paying Agent
were named in this Article in addition to or in place of the Trustee.
Section 11.16 Amendments.
----------
The provisions of this Article XI shall not be amended or
modified in a manner that adversely affects the rights of the holders of any
Senior Debt of any Guarantor without the written consent of the Administrative
Agent under the Senior Financing or a majority of the lenders under the Senior
Financing.
123
ARTICLE XII
GUARANTEES
----------
Section 12.01 Guarantees.
----------
Each Guarantor hereby unconditionally guarantees, jointly and
severally, to each Holder and to the Trustee and its successors and assigns (a)
the full and punctual payment of principal of, and premium and Liquidated
Damages, if any, and interest on the Notes when due, whether at maturity, by
acceleration, by redemption or otherwise, and all other monetary obligations of
the Company under this Indenture and the Notes and (b) the full and punctual
performance within applicable grace periods of all other obligations of the
Company under this Indenture and the Notes. Each Guarantor further agrees that
the Guarantee Obligations set forth in this Article XII may be extended or
renewed, in whole or in part, without notice or further assent from such
Guarantor, and that such Guarantor will remain bound under this Article XII
notwithstanding any extension or renewal of any Guarantee Obligations.
Each Guarantor waives presentation to, demand of, payment from
and protest to the Company of any of the Guarantee Obligations and also waives
notice of protest for nonpayment. Each Guarantor waives notice of any default
under the Notes or its Note Guarantee. The obligations of each Guarantor
hereunder shall not be affected by (a) the failure of any Holder or the Trustee
to assert any claim or demand or to enforce any right or remedy against the
Company or any other Person under this Indenture, the Notes or any other
agreement or otherwise; (b) any extension or renewal of any thereof; (c) any
rescission, waiver, amendment or modification of any of the terms or provisions
of this Indenture, the Notes or any other agreement; (d) the release of any
security held by any Holder or the Trustee for the Note Guarantees or any of
them; (e) the failure of any Holder or the Trustee to exercise any right or
remedy against any other guarantor of the Note Guarantee; or (f) any change in
the ownership of such Guarantor.
Each Guarantor further agrees that its Note Guarantee herein
constitutes a guarantee of payment, performance and compliance when due (and not
a guarantee of collection) and waives any right to require that any resort be
had by any Holder or the Trustee to any security held for payment of the Note
Guarantee.
Each Note Guarantee is, to the extent and in the manner set forth
in Article XI, subordinated and subject in right of payment to the prior payment
in full of
124
all Senior Debt of the Guarantor giving such Note Guarantee and is made subject
to such provisions of this Indenture.
Except as expressly set forth in Sections 8.01 and 12.03 and
Article V, the obligations of each Guarantor hereunder shall not be subject to
any reduction, limitation, impairment or termination for any reason, including
any claim of waiver, release, surrender, alteration or compromise, and shall not
be subject to any defense of setoff, counterclaim, recoupment or termination
whatsoever or by reason of the invalidity, illegality or unenforceability of any
Note Guarantee or otherwise. Without limiting the generality of the foregoing,
the obligations of each Guarantor herein shall not be discharged or impaired or
otherwise affected by the failure of any Holder or the Trustee to assert any
claim or demand or to enforce any remedy under this Indenture, the Notes or any
other agreement, by any waiver or modification of any thereof, by any default,
failure or delay, willful or otherwise, in the performance of the obligations,
or by any other act or thing or omission or delay to do any other act or thing
which may or might in any manner or to any extent vary the risk of such
Guarantor or would otherwise operate as a discharge of such Guarantor as a
matter of law or equity.
Each Guarantor further agrees that its Note Guarantee herein
shall continue to be effective or be reinstated, as the case may be, if at any
time payment, or any part thereof, or premium, if any, or interest on any Note
Guarantee is rescinded or must otherwise be restored by any Holder or the
Trustee upon the bankruptcy or reorganization of the Company or otherwise.
In furtherance of the foregoing and not in limitation of any
other right which any Holder or the Trustee has at law or in equity against any
Guarantor by virtue hereof, upon the failure of the Company to pay the Accreted
Value of or premium, if any, or interest on any Guarantee Obligation when and as
the same shall become due, whether at maturity, by acceleration, by redemption
or otherwise, or to perform or comply with any other Obligation, each Guarantor
hereby promises to and will, upon receipt of written demand by the Trustee,
forthwith pay, or cause to be paid, in cash, to the Holders or the Trustee an
amount equal to the sum of (i) the unpaid amount of such Guarantee Obligations,
(ii) accrued and unpaid premium and Liquidated Damages, if any, and interest on
such Guarantee Obligations (but only to the extent not prohibited by law) and
(iii) all other monetary Obligations of the Company to the Holders and the
Trustee.
Each Guarantor agrees that it shall not be entitled to any right
of subrogation in respect of any Obligations guaranteed hereby until payment in
full in cash
125
of all Guarantee Obligations and all obligations to which the Note Guarantee are
subordinated as provided in Article XI. Each Guarantor further agrees that, as
between it, 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 VI for the purposes of this Note Guarantee herein,
notwithstanding any stay, injunction or other prohibition preventing such
acceleration in respect of the Obligations guaranteed hereby, and (y) in the
event of any declaration of acceleration of such Obligations as provided in
Article VI, such Obligations (whether or not due and payable) shall forthwith
become due and payable by such Guarantor for the purposes of this Section.
Each Guarantor also agrees to pay any and all costs and expenses
(including reasonable attorneys' fees) incurred by the Trustee or any Holder in
enforcing any rights under this Section 12.01.
Section 12.02 Additional Guarantees.
---------------------
If the Company or any of its Restricted Subsidiaries acquires or
creates (including, without limitation, by designating an Unrestricted
Subsidiary as a Restricted Subsidiary) another Restricted Subsidiary, other than
a Foreign Subsidiary, after the date hereof, then any such Subsidiary shall
execute and deliver to the Trustee (i) a supplemental indenture, in form and
substance substantially in the form of Exhibit E attached hereto, which subjects
such Person to the provisions of this Indenture as a Guarantor, and (ii) an
Opinion of Counsel within 10 business days of the date on which it was acquired
or created to the effect that such supplemental indenture has been duly
authorized and executed by such Person and constitutes the legal, valid, binding
and enforceable obligation of such Person (subject to such customary exceptions
concerning fraudulent conveyance laws, creditors' rights and equitable
principles as may be reasonably acceptable to the Trustee).
Section 12.03 Limitation on Guarantor Liability.
---------------------------------
Each Guarantor, and by its acceptance of Notes, each Holder,
hereby confirms that it is the intention of all such parties that the Note
Guarantee of such Guarantor not constitute a fraudulent transfer or conveyance
for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the
Uniform Fraudulent Transfer Act or any similar federal or state law to the
extent applicable to any Note Guarantee. To effectuate the foregoing intention,
the Trustee Obligations, the Holders and the Guarantors hereby irrevocably agree
that the obligations of such Guarantor under this Article XII shall be limited
to the maximum amount as shall, after giving effect to such
126
maximum amount and all other contingent and fixed liabilities of such Guarantor
that are relevant under such laws, and after giving effect to any collections
from, rights to receive contribution from or payments made by or on behalf of
any other Guarantor in respect of the obligations of such other Guarantor under
this Article XII, result in the obligations of such Guarantor under its Note
Guarantee not constituting a fraudulent transfer or conveyance.
Section 12.04 Execution and Delivery of Guarantee.
-----------------------------------
To evidence its Note Guarantee set forth in Section 12.01 hereof,
each Guarantor hereby agrees that a notation of such Note Guarantee in
substantially the form included in Exhibit D shall be endorsed by an Officer of
such Guarantor on each Note authenticated and delivered by the Trustee and that
this Indenture shall be executed on behalf of such Guarantor by an Officer of
such Guarantor thereunto authorized.
Each Guarantor hereby agrees that its Note Guarantee set forth in
Section 12.01 hereof shall remain in full force and effect notwithstanding any
failure to endorse on each Note a notation of such Note Guarantee.
If an Officer whose signature is on this Indenture or on the Note
Guarantee no longer holds that office at the time the Trustee authenticates the
Note on which a Note Guarantee is endorsed, the Note Guarantee shall be valid
nevertheless.
The delivery of any Note by the Trustee, after the authentication
thereof hereunder, shall constitute due delivery of the Note Guarantee set forth
in this Indenture on behalf of the Guarantors.
Section 12.05 Guarantors May Consolidate, etc., on Certain Terms.
--------------------------------------------------
A Guarantor may not sell or otherwise dispose of all or
substantially all of its assets, or consolidate with or merge with or into
another Person, other than the Company or another Guarantor, unless:
(a) immediately after giving effect to the transaction, no
Default exists under this Indenture; and
(b) Either
127
(i) the Person acquiring the assets in any such
sale or disposition or the Person formed by or surviving any such
consolidation or merger (if other than a Guarantor or the Company)
unconditionally assumes all the obligations of such Guarantor,
pursuant to a supplemental indenture in form and substance reasonably
satisfactory to the Trustee, under the Notes, this Indenture, and the
Note Guarantee on the terms set forth herein or therein; or
(ii) the Net Proceeds of the transactions are
applied in accordance with Section 4.10 (it being understood that in
the event that such Net Proceeds are not so applied, the Company will
be permitted and required to make an Asset Sale Offer with any Excess
Proceeds in satisfaction of this condition).
In case of any such consolidation, merger, sale or conveyance and
upon the assumption by the successor Person, by supplemental indenture, executed
and delivered to the Trustee and satisfactory in form to the Trustee, of the
Note Guarantee endorsed upon the Notes and the due and punctual performance of
all of the covenants and conditions of this Indenture to be performed by the
Guarantor, such successor Person shall succeed to and be substituted for the
Guarantor with the same effect as if it had been named herein as a Guarantor.
Such successor Person thereupon may cause to be signed any or all of the Note
Guarantees to be endorsed upon all of the Notes issuable hereunder which
theretofore shall not have been signed by the Company and delivered to the
Trustee. All the Note Guarantees so issued shall in all respects have the same
legal rank and benefit under this Indenture as the Note Guarantees theretofore
and thereafter issued in accordance with the terms of this Indenture as though
all of such Note Guarantees had been issued at the date of the execution hereof.
Except as set forth in Articles IV and V hereof, and
notwithstanding clause (a) and (b) of this Section 12.05, nothing contained in
this Indenture or in any of the Notes shall prevent any consolidation or merger
of a Guarantor with or into the Company or another Guarantor, or shall prevent
any sale or conveyance of the property of a Guarantor as an entirety or
substantially as an entirety to the Company or another Guarantor.
128
Section 12.06 Releases of Guarantees.
----------------------
A Note Guarantee will be released (a) in connection with any sale
of all of the Capital Stock of a Guarantor to a Person (including by way of
merger or consolidation) that is not (either before or after giving effect to
such transaction) a Subsidiary of the Company, if the Net Proceeds of that
transaction are applied (or the Company delivers an Officer's Certificate to the
Trustee certifying that such Net Proceeds will be applied within the time period
specified in Section 4.10) in accordance with Section 4.10 hereof, (b) if the
Company properly designates any Restricted Subsidiary that is a Guarantor as an
Unrestricted Subsidiary in accordance with Section 4.20 hereof or (c) in
connection with any sale or other disposition of all or substantially all of the
assets of that Guarantor, including by way of merger or consolidation, provided,
however that in the event of such a transaction, the Company still has the
obligation to apply the Net Proceeds as set forth in Section 4.10.
Any Guarantor not released from its obligations under its Note
Guarantee shall remain liable for the full amount of principal of and interest
on the Notes and for the other obligations of any Guarantor under this Indenture
as provided in this Article XII.
[Signatures on following page]
129
SIGNATURES
Dated as of July 12, 2000
iPCS, INC.
By: /s/ Xxxxxxx X. Xxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: President and Chief Executive
Officer
iPCS EQUIPMENT, INC.
By: /s/ Xxxxxxx X. Xxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: President and Chief Executive
Officer
iPCS WIRELESS, INC.
By: /s/ Xxxxxxx X. Xxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: President and Chief Executive
Officer
130
CTC ILLINOIS TRUST COMPANY
as Trustee
By: /s/ X. Xxxxxxxxx
-------------------------------
Name: X. Xxxxxxxxx
Title: Vice President
EXHIBIT A
(Face of Note)
14% Senior Discount Notes due 2010
CUSIP _____________
No.______ $___________
iPCS, INC.
promises to pay to Cede & Co. or registered assigns, the principal sum of
________ Dollars ($______________) on July 15, 2010.
Interest Payment Dates: January 15 and July 15.
Record Dates: January 1 and July 1.
Dated: July 12, 2000
iPCS, INC.
By:___________________________
Name:
Title:
This is one of the Global
Notes referred to in the
within-mentioned Indenture:
CTC ILLINOIS TRUST COMPANY,
as Trustee
By:________________________________
Authorized Signatory
================================================================================
A-1
(Back of Note)
14% Senior Discount Notes due 2010
THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE
GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL
OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES
EXCEPT THAT (i) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED
PURSUANT TO SECTION 2.07 OF THE INDENTURE, (ii) THIS GLOBAL NOTE MAY BE
EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(a) OF THE INDENTURE,
(iii) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT
TO SECTION 2.11 OF THE INDENTURE AND (iv) THIS GLOBAL NOTE MAY BE TRANSFERRED TO
A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE COMPANY.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN DEFINITIVE
FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A
NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR
ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS THIS
CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY (55 XXXXX XXXXXX, XXX XXXX, XXX XXXX) ("XXX"), TO THE COMPANY OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS MAY BE
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS
AMENDED (THE "ACT"), AND, ACCORDINGLY, MAY NOT
A-2
BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED WITHIN THE UNITED STATES OR
TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS, EXCEPT AS SET FORTH IN THE
NEXT SENTENCE. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE
HOLDER:
(1) REPRESENTS THAT (i) IT IS A "QUALIFIED INSTITUTIONAL
BUYER" (AS DEFINED IN RULE 144A UNDER THE ACT)(A "QIB"),
(ii) IT HAS ACQUIRED THIS SECURITY IN AN OFFSHORE
TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE ACT OR
(iii) IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS
DEFINED IN RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D
UNDER THE ACT (AN "IAI"),
(2) AGREES THAT IT WILL NOT RESELL OR OTHERWISE TRANSFER
THIS SECURITY EXCEPT (i) TO THE COMPANY OR ANY OF ITS
SUBSIDIARIES, (ii) TO A PERSON WHOM THE SELLER REASONABLY
BELIEVES IS A QIB PURCHASING FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QIB IN A TRANSACTION MEETING THE REQUIREMENTS
OF RULE 144A, (iii) IN AN OFFSHORE TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OR 904 OF THE ACT, (iv) IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144 UNDER THE
ACT, (v) TO AN IAI THAT, PRIOR TO SUCH TRANSFER, FURNISHES
THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN
REPRESENTATIONS AND AGREEMENTS RELATING TO THE TRANSFER OF
THIS SECURITY (THE FORM OF WHICH CAN BE OBTAINED FROM THE
TRUSTEE) AND, IF SUCH TRANSFER IS IN RESPECT OF AN AGGREGATE
PRINCIPAL AMOUNT OF NOTES LESS THAN $250,000, AN OPINION OF
COUNSEL ACCEPTABLE TO THE COMPANY THAT SUCH TRANSFER IS IN
COMPLIANCE WITH THE ACT, (vi) IN ACCORDANCE WITH ANOTHER
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE ACT (AND
BASED UPON AN OPINION OF COUNSEL ACCEPTABLE TO THE
A-3
COMPANY) OR (vii) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT AND, IN EACH CASE, IN ACCORDANCE WITH THE
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES
OR ANY OTHER APPLICABLE JURISDICTION AND
(3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS
SECURITY OR AN INTEREST HEREIN IS TRANSFERRED A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND.
AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION" AND "UNITED STATES" HAVE THE
MEANINGS GIVEN TO THEM BY RULE 902 OF REGULATION S UNDER THE ACT. THE INDENTURE
AND WARRANT AGREEMENT CONTAIN A PROVISION REQUIRING THE TRUSTEE TO REFUSE TO
REGISTER ANY TRANSFER OF THESE SECURITIES IN VIOLATION OF THE FOREGOING.
UNTIL THE SEPARATION DATE (AS DEFINED), THIS NOTE HAS BEEN ISSUED AS, AND MUST
BE TRANSFERRED AS, A UNIT TOGETHER WITH THE ASSOCIATED WARRANTS TO PURCHASE
COMMON STOCK OF iPCS, INC. EACH UNIT CONSISTS OF $1,000 PRINCIPAL AMOUNT OF
NOTES AND A WARRANT TO PURCHASE 9.9061 SHARES OF COMMON STOCK OF iPCS, INC.,
SUBJECT TO ADJUSTMENT UNDER CERTAIN CIRCUMSTANCES. A COPY OF THE WARRANT
AGREEMENT PURSUANT TO WHICH THE WARRANTS HAVE BEEN ISSUED IS AVAILABLE FROM THE
COMPANY UPON REQUEST.
FOR PURPOSES OF SECTION 1273 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED
(THE "CODE"), THIS SECURITY HAS ORIGINAL ISSUE DISCOUNT. FOR PURPOSES OF
SECTION 1273 OF THE CODE, THE ISSUE PRICE IS $497.44 AND THE AMOUNT OF ORIGINAL
ISSUE DISCOUNT IS $502.66, IN EACH CASE PER $1,000 PRINCIPAL AMOUNT OF THIS
SECURITY. FOR PURPOSES OF SECTION 1275 OF THE CODE, THE YIELD TO MATURITY
COMPOUNDED SEMIANNUALLY IS 15.4%.
Capitalized terms used herein shall have the meanings assigned to them
in the Indenture referred to below unless otherwise indicated.
A-4
1. Interest. iPCS, Inc., a Delaware corporation (the "Company"),
promises to pay interest on the principal amount of this Note at 14% per annum
until maturity, in the manner specified below, and shall pay the Liquidated
Damages, if any, payable pursuant to Section 5 of the Registration Rights
Agreement referred to below. Interest will not accrue prior to July 15, 2005.
Thereafter, the Company shall pay interest and Liquidated Damages, if any, semi-
annually on January 15 and July 15 of each year, or if any such day is not a
Business Day, on the next succeeding Business Day (each an "Interest Payment
Date"). Interest on the Notes shall accrue from the most recent date to which
interest has been paid or, if no interest has been paid, from July 15, 2005;
provided, however, that if there is no existing Default in the payment of
interest, and if this Note is authenticated between a record date referred to on
the face hereof and the next succeeding Interest Payment Date, interest shall
accrue from such next succeeding Interest Payment Date; provided, further, that
the first Interest Payment Date shall be January 15, 2006. The Company shall pay
interest on overdue principal and premium, if any, from time to time on demand
at a rate that is 1% per annum in excess of the rate then in effect; it shall
pay interest on overdue installments of interest and Liquidated Damages, if any
(without regard to any applicable grace periods) from time to time on demand at
the same rate to the extent lawful. Interest shall be computed on the basis of
a 360-day year of twelve 30-day months.
2. Method of Payment. The Company shall pay interest on the Notes
(except defaulted interest) and Liquidated Damages, if any, to the Persons who
are registered Holders of Notes at the close of business on the January 2 or
July 1 next preceding the Interest Payment Date, even if such Notes are
cancelled after such record date and on or before such Interest Payment Date,
except as provided in Section 2.12 of the Indenture with respect to defaulted
interest. The Notes shall be payable as to principal, premium and Liquidated
Damages, if any, and interest at the office or agency of the Company maintained
for such purpose within or without the City and State of New York, or, at the
option of the Company, payment of interest and Liquidated Damages, if any, may
be made by check mailed to the Holders at their addresses set forth in the
register of Holders; provided, however, that payment by wire transfer of
immediately available funds shall be required with respect to principal of and
interest, premium and Liquidated Damages, if any, on, all Global Notes and all
other Notes the Holders of which shall have provided wire transfer instructions
to the Company or the Paying Agent. Such payment shall be 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.
A-5
3. Paying Agent and Registrar. Initially, CTC Illinois Trust
Company, the Trustee under the Indenture, shall act as Paying Agent and
Registrar. The Company may change any Paying Agent or Registrar without notice
to any Holder. The Company or any of its Subsidiaries may act in any such
capacity.
4. Indenture. The Company issued the Notes under an Indenture dated
as of July 12, 2000 ("Indenture") among the Company, iPCS Equipment, Inc. and
iPCS Wireless, Inc., as Guarantors, and the Trustee. The terms of the Notes
include those stated in the Indenture and those made part of the Indenture by
reference to the Trust Indenture Act of 1939, as amended (15 U.S. Code (S)(S)
77aaa-77bbbb). The Notes are subject to all such terms, and Holders are
referred to the Indenture and such Act for a statement of such terms. To the
extent any provision of this Note conflicts with the express provisions of the
Indenture, the provisions of the Indenture shall govern and be controlling. The
Notes are obligations of the Company limited to $300,000,000 in aggregate
principal amount.
5. Optional Redemption.
(a) On or after July 15, 2005, the Company may redeem the Notes
at any time, in whole or in part, upon not less than 30 nor more than 60 days'
notice, at the redemption prices (expressed as percentages of principal amount)
set forth below, plus accrued and unpaid interest and Liquidated Damages, if
any, thereon to the date fixed for redemption, if redeemed during the twelve-
month period beginning on July 15 of the years indicated below:
Year Percentage
---- -----------
2005 107.000%
2006 104.667%
2007 102.333%
2008 and thereafter 100.000%
(b) Notwithstanding the provisions of clause (a) of this Section
5, prior to July 15, 2003, the Company shall be permitted to redeem up to 35% of
the Accreted Value of the Notes originally issued at a redemption price of 114%
of the Accreted Value thereof, plus accrued and unpaid interest and Liquidated
Damages, if any, thereon to the date fixed for redemption, with the net cash
proceeds of one or more Equity Offerings (excluding the first $70.0 million in
net cash proceeds received by the Company from the issuance of Equity Interests
after the date of the Indenture); provided, however, that (1) at least 65% of
the Accreted Value of the Notes originally
issued remains outstanding immediately after the occurrence of the redemption,
excluding Notes held by the Company or any of its Subsidiaries; and (2) each
redemption occurs within 90 days after the date of the closing of such an
offering.
6. Mandatory Redemption. Except as set forth in paragraph 7 below,
the Company shall not be required to make mandatory redemption payments with
respect to the Notes.
7. Repurchase at Option of Holder.
(a) If there is a Change of Control, the Company shall be
required to make an offer (a "Change of Control Offer") to repurchase all or any
part (equal to $1,000 or an integral multiple thereof) of each Holder's Notes at
a purchase price equal to (i) 101% of the Accreted Value thereof, plus
Liquidated Damages, if any, thereon to the date fixed for repurchase, if the
repurchase occurs prior to July 15, 2005, or (ii) 101% of the aggregate
principal amount thereof plus accrued and unpaid interest and Liquidated
Damages, thereon, if any, to the date of purchase, if the repurchase occurs on
or after July 15, 2005 (the "Change of Control Payment"). Within 30 business
days following any Change of Control, the Company shall mail a notice to the
Trustee and to each Holder setting forth the procedures governing the Change of
Control Offer as required by the Indenture.
(b) If the Company or a Restricted Subsidiary consummates any
Asset Sales, when the aggregate amount of Excess Proceeds exceeds $10.0 million,
the Company shall commence an offer to all Holders of Notes and all holders of
other Indebtedness containing provisions similar to those set forth in the
Indenture with respect to offers to purchase or redeem with the proceeds of
sales of assets (an "Asset Sale Offer") pursuant to Section 3.09 of the
Indenture and such other Indebtedness to purchase the maximum principal amount
of Notes and such other Indebtedness that may be purchased out of the Excess
Proceeds at an offer price in cash in an amount equal to 100% of the Accreted
Value of the Notes, if the repurchase occurs before July 15, 2005, or 100% of
the principal amount thereof plus accrued and unpaid interest if the repurchase
occurs on or after July 15, 2005, and in each case, Liquidated Damages thereon,
if any, to the date fixed for the closing of such offer in accordance with the
procedures set forth in Section 3.09 and such other Indebtedness.
8. Notice of Redemption. Notice of redemption shall be mailed at
least 30 days but not more than 60 days before the redemption date to each
Holder whose Notes are to be redeemed at its registered address. Notes in
denominations larger
than $1,000 may be redeemed in part but only in whole multiples of $1,000,
unless all of the Notes held by a Holder are to be redeemed. On and after the
redemption date interest ceases to accrue on Notes or portions thereof called
for redemption.
9. Denominations, Transfer, Exchange. The Notes are in registered
form without coupons in denominations of $1,000 and integral multiples of
$1,000. The transfer of Notes may be registered and Notes may be exchanged as
provided in the Indenture. The Registrar and the Trustee may require a Holder,
among other things, to furnish appropriate endorsements and transfer documents
and the Company may require a Holder to pay any taxes and fees required by law
or permitted by the Indenture. The Company need not exchange or register the
transfer of any Note or portion of a Note selected for redemption, except for
the unredeemed portion of any Note being redeemed in part. Also, the Company
need not exchange or register the transfer of any Notes for a period of 15 days
before a selection of Notes to be redeemed or during the period between a record
date and the corresponding interest payment date.
10. Persons Deemed Owners. The registered Holder of a Note may be
treated as its owner for all purposes.
11. Amendment, Supplement and Waiver. Subject to certain exceptions,
the Indenture or the Notes may be amended or supplemented with the consent of
the Holders of at least a majority in aggregate Accreted Value of the Notes then
outstanding if prior to July 15, 2005, or the aggregate principal amount at
maturity of the then outstanding Notes if on or after July 15, 2005, voting as a
single class, including without limitation, consents obtained in connection with
a purchase of, or tender offer or exchange offer for Notes, and any existing
Default or compliance with any provision of the Indenture or the Notes may be
waived with the consent of the Holders of a majority in aggregate Accreted Value
of the then outstanding Notes voting as a single class, including without
limitation, in consents obtained in connection with a purchase of, or tender
offer or exchange offer for Notes. Without the consent of any Holder of a Note,
the Indenture or the Notes may be amended or supplemented to cure any ambiguity,
defect or inconsistency, to provide for uncertificated Notes in addition to or
in place of certificated Notes or to alter the provisions of Article 2 hereof
(including the related definitions) in a manner that does not materially
adversely affect any Holder, to provide for the assumption of the Company's or
any Guarantor's obligations to the Holders of the Notes by a successor to the
Company pursuant to Article 5 of the Indenture, to make any change that would
provide any additional rights or benefits to the Holders of the Notes or that
does not adversely affect the legal rights hereunder of any Holder of the Note,
to comply with requirements of the SEC in order
A-8
to effect or maintain the qualification of this Indenture under the TIA, to add
a Guarantor pursuant to Section 12.02 of the Indenture, and to evidence and
provide the acceptance of the appointment of a successor Trustee pursuant to
Section 7.08 and 7.09 of the Indenture.
12. Defaults and Remedies. Events of Default include (a) the failure
by the Company to pay any installment of interest on, or Liquidated Damages with
respect to, the Notes, as and when the same becomes due and payable and the
continuance of any such failure for 30 days, (b) the failure of the Company to
pay all or any part of the principal, or premium, if any, on the Notes when and
as the same becomes due and payable at maturity, redemption, by acceleration or
otherwise, including, without limitation, payment of the Change of Control
Payment or the amount set forth in the Asset Sale Offer, or otherwise on Notes
validly tendered and not properly withdrawn pursuant to a Change of Control or
Asset Sale Offer, as applicable, or default in the payment when due of principal
of or premium, if any, on the Notes, whether or not prohibited by any other
provision of the Indenture, (c) the failure by the Company or any of its
Restricted Subsidiaries to comply with any of the provisions of Section 4.10 or
4.14 or Article V of the Indenture, (d) the failure by the Company or any of its
Restricted Subsidiaries, for 30 days after written notice to the Company by the
Trustee or the Holders of at least 25% in aggregate principal amount of the then
outstanding Notes, to comply with any of its other agreements in the Indenture
or the Notes, (e) the default under any mortgage, indenture or instrument under
which there may be secured or evidenced any Indebtedness for money borrowed by
the Company or any of its Restricted Subsidiaries, or the payment of which is
guaranteed by the Company or any of its Restricted Subsidiaries, whether such
Indebtedness or Guarantee now exists, or is created after the date of the
Indenture, if that default (A) is caused by a failure to pay principal of or
premium, if any, or interest on such Indebtedness on the date of such default (a
"Payment Default") or (B) results in the acceleration of such Indebtedness prior
to its express maturity; and, in each case, the outstanding principal amount of
any such Indebtedness, together with the principal amount of any other such
Indebtedness under which there has been a Payment Default or the maturity of
which has been so accelerated, aggregates $5.0 million or more; (f) failure by
the Company or any of its Restricted Subsidiaries to pay final judgments
aggregating in excess of $5.0 million, which judgments are not paid, discharged
or stayed for a period of 60 consecutive days, (g) certain events of bankruptcy
or insolvency with respect to the Company or any of its Restricted Subsidiaries,
(h) certain termination events under the Sprint Agreements and (i) if after the
date of the Indenture but on or prior to December 31, 2000, the Company has not
received at least $70.0 million of gross cash proceeds from one or more Equity
Offering (other than Equity Offerings of Disqualified Stock of the Company and
other
A-9
than Equity Offerings to Restricted Subsidiaries of the Company). If any Event
of Default occurs and is continuing, the Trustee or the Holders of at least 25%
in principal amount of the then outstanding Notes may declare all the Notes to
be due and payable. Notwithstanding the foregoing, in the case of an Event of
Default arising from certain events of bankruptcy or insolvency, all outstanding
Notes shall become due and payable without further action or notice. Holders may
not enforce the Indenture or the Notes except as provided in the Indenture.
Subject to certain limitations, Holders of a majority in aggregate principal
amount of the then outstanding Notes may direct the Trustee in its exercise of
any trust or power. The Trustee may withhold from Holders of the Notes notice of
any continuing Default or Event of Default (except a Default or Event of Default
relating to the payment of principal or interest) if it determines that
withholding notice is in their interest. The Holders of a majority in aggregate
principal amount of the Notes then outstanding by notice to the Trustee may on
behalf of the Holders of all of the Notes waive any existing Default or Event of
Default and its consequences under the Indenture except a continuing Default or
Event of Default in the payment of interest on, or the principal of, the Notes.
The Company is required to deliver to the Trustee annually a statement regarding
compliance with the Indenture, and the Company is required upon becoming aware
of any Default or Event of Default, to deliver to the Trustee a statement
specifying such Default or Event of Default.
13. Trustee Dealings with Company. The Trustee, in its individual or
any other capacity, may make loans to, accept deposits from, and perform
services for the Company or its Affiliates, and may otherwise deal with the
Company or its Affiliates, as if it were not the Trustee.
14. No Recourse Against Others. No director, officer, employee,
incorporator or stockholder, of the Company, as such, shall have any liability
for any obligations of the Company under the Notes or the Indenture or for any
claim based on, in respect of, or by reason of, such obligations or their
creation. Each Holder by accepting a Note waives and releases all such
liability. The waiver and release are part of the consideration for the
issuance of the Notes such waiver may not be effective to waive liabilities
under the federal securities laws and it is the view of the SEC that such a
waiver is against public policy.
15. Authentication. This Note shall not be valid until authenticated
by the manual signature of the Trustee or an authenticating agent.
16. Abbreviations. Customary abbreviations may be used in the name
of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (=
A-10
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).
17. Additional Rights of Holders of Restricted Global Notes and
Restricted Definitive Notes. In addition to the rights provided to Holders of
Notes under the Indenture, Holders of Restricted Global Notes and Restricted
Definitive Notes shall have all the rights set forth in the Registration Rights
Agreement dated as of July 12, 2000, between the Company and the parties named
on the signature pages thereof (the "Registration Rights Agreement").
18. CUSIP Numbers. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Company has caused
CUSIP numbers to be printed on the Notes and the Trustee may use CUSIP numbers
in notices of redemption as a convenience to Holders. No representation is made
as to the accuracy of such numbers either as printed on the Notes or as
contained in any notice of redemption and reliance may be placed only on the
other identification numbers placed thereon.
The Company shall furnish to any Holder upon written request and
without charge a copy of the Indenture and/or the Registration Rights Agreement.
Requests may be made to:
iPCS, Inc.
000 Xxxx Xxxxx Xxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Attention: Chief Executive Officer
A-11
Assignment Form
To assign this Note, fill in the form below: (I) or (we) assign and transfer
this Note to
________________________________________________________________________________
(Insert assignee's soc. sec. or tax I.D. no.)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint ________________________________________________________
to transfer this Note on the books of the Company. The agent may substitute
another to act for him.
________________________________________________________________________________
Date:_____________
Your Signature:______________________
(Sign exactly as your name appears on
the face of this Note)
Signature Guarantee:_________________
A-12
Option of Holder to Elect Purchase
If you want to elect to have this Note purchased by the Company
pursuant to Section 4.10 or 4.14 of the Indenture, check the box below:
[_] Section 4.10 [_] Section 4.14
If you want to elect to have only part of the Note purchased by the
Company pursuant to Section 4.10 or Section 4.14 of the Indenture, state the
amount you elect to have purchased: $________
Date:______ our Signature: ________________________________
(Sign exactly as your name appears on the Note)
Signature Guarantee: __________________________
Tax Identification No: ________________________
A-13
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE
The following exchanges of a part of this Global Note for an interest
in another Global Note or for a Definitive Note, or exchanges of a part of
another Global Note or Definitive Note for an interest in this Global Note, have
been made:
Amount of increase Principal Amount
Amount of decrease in Principal of this Signature of
in Principal Amount Amount Global Note authorized officer
of this of this following such of Trustee or Note
Date of Exchange Global Note Global Note decrease (or increase) Custodian
-------------------------------------------------------------------------------------------------------
A-14
EXHIBIT B
FORM OF CERTIFICATE OF TRANSFER
iPCS, Inc.
000 Xxxx Xxxxx Xxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
CTC Illinois Trust Company
0 Xxxxx XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Re: 14% Senior Discount Notes due 2010 of iPCS, Inc.
Reference is hereby made to the Indenture, dated as of July 12, 2000
(the "Indenture"), among iPCS, Inc., as issuer (the "Company"), iPCS Equipment,
--------- -------
Inc. and iPCS Wireless, Inc., as guarantors, and CTC Illinois Trust Company, 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
----------
Note[s] or interest in such Note[s] specified in Annex A hereto, in the
principal amount of $___________ in such Note[s] or interests (the "Transfer"),
--------
to __________ (the "Transferee"), as further specified in Annex A hereto. In
----------
connection with the Transfer, the Transferor hereby certifies that:
[CHECK ALL THAT APPLY]
1. [_] Check if Transferee shall take delivery of a beneficial
-------------------------------------------------------
interest in the 144A Global Note or a Definitive Note Pursuant to Rule 144A.
---------------------------------------------------------------------------
The Transfer is being effected pursuant to and in accordance with Rule 144A
under the United States Securities Act of 1933 (the "Securities Act"), and,
---------- ---
accordingly, the Transferor hereby further certifies that the beneficial
interest or Definitive Note is being transferred to a Person that the Transferor
reasonably believed and believes is purchasing the beneficial interest or
Definitive Note for its own account, or for one or more accounts with respect
B-1
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 beneficial interest
or Definitive Note shall be subject to the restrictions on transfer enumerated
in the Private Placement Legend printed on the 144A Global Note or the
Definitive Note and in the Indenture and the Securities Act.
2. [_] Check if Transferee shall take delivery of a beneficial
-------------------------------------------------------
interest in the Regulation S Global Note or a Definitive Note pursuant to
-------------------------------------------------------------------------
Regulation S. The Transfer is being effected pursuant to and in accordance with
------------
Rule 904 under the Securities Act and, accordingly, the Transferor hereby
further certifies that (i) the Transfer is not being made to a person in the
United States and (x) at the time the buy order was originated, the Transferee
was outside the United States or such Transferor and any Person acting on its
behalf reasonably believed and believes that the 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, (iii) the transaction is not part of a plan or
scheme to evade the registration requirements of the Securities Act and (iv) if
the proposed transfer is being made prior to the expiration of the Restricted
Period, the transfer is not being made to a U.S. Person or for the account or
benefit of a U.S. Person (other than an Initial Purchaser). Upon consummation
of the proposed transfer in accordance with the terms of the Indenture, the
transferred beneficial interest or Definitive Note shall be subject to the
restrictions on Transfer enumerated in the Private Placement Legend printed on
the Regulation S Global Note and/or the Definitive Note and in the Indenture and
the Securities Act.
3. [_] Check and complete if Transferee will take delivery of a
--------------------------------------------------------
beneficial interest in the IAI Global Note or a Definitive Note pursuant to any
-------------------------------------------------------------------------------
provision of the Securities Act other than Rule 144A or Regulation S. The
--------------------------------------------------------------------
Transfer is being effected in compliance with the transfer restrictions
applicable to beneficial interests in Restricted Global Notes and Restricted
Definitive Notes and pursuant to and in accordance with the Securities Act and
any applicable blue sky securities laws of any state of the United States, and
accordingly the Transferor hereby further certifies that (check one):
B-2
(a) [_] such Transfer is being effected pursuant to and in
accordance with Rule 144 under the Securities Act;
or
(b) [_] such Transfer is being effected to the Company or a
subsidiary thereof;
or
(c) [_] such Transfer is being effected pursuant to an
effective registration statement under the Securities Act and in compliance with
the prospectus delivery requirements of the Securities Act;
or
(d) [_] such Transfer is being effected to an Institutional
Accredited Investor and pursuant to an exemption from the registration
requirements of the Securities Act other than Rule 144A, Rule 144 or Rule 904,
and the Transferor hereby further certifies that it has not engaged in any
general solicitation within the meaning of Regulation D under the Securities Act
and the Transfer complies with the transfer restrictions applicable to
beneficial interests in a Restricted Global Note or Restricted Definitive Notes
and the requirements of the exemption claimed, which certification is supported
by (1) a certificate executed by the Transferee in the form of Exhibit F to the
Indenture and (2) if such Transfer is in respect of a principal amount of Notes
at the time of transfer of less than $250,000, an Opinion of Counsel provided by
the Transferor or the Transferee (a copy of which the Transferor has attached to
this certification), to the effect that such Transfer is in compliance with the
Securities Act. Upon consummation of the proposed transfer in accordance with
the terms of the Indenture, the transferred beneficial interest or Definitive
Note will be subject to the restrictions on transfer enumerated in the Private
Placement Legend printed on the IAI Global Note and/or the Definitive Notes and
in the Indenture and the Securities Act.
4. [_] Check and complete if Transferee shall take delivery of a
---------------------------------------------------------
beneficial interest in a Definitive Note pursuant to any provision of the
-------------------------------------------------------------------------
Securities Act other than Rule 144A or Regulation S. The Transfer is being
---------------------------------------------------
effected in compliance with the transfer restrictions applicable to beneficial
interests in Restricted Global Notes and Restricted Definitive Notes and
pursuant to and in accordance with the Securities
B-3
Act and any applicable blue sky securities laws of any state of the United
States, and accordingly the Transferor hereby further certifies that
(check one):
(a) such Transfer is being effected pursuant to and in
accordance with Rule 144 under the Securities Act;
or
(b) such Transfer is being effected to the Company or a
subsidiary thereof;
or
(c) such Transfer is being effected pursuant to an effective
registration statement under the Securities Act and in compliance with the
prospectus delivery requirements of the Securities Act;
or
(d) such Transfer is being effected to an Institutional
Accredited Investor and pursuant to an exemption from the registration
requirements of the Securities Act other than Rule 144A, Rule 144 or Rule 904,
and the Transferor hereby further certifies that it has not engaged in any
general solicitation within the meaning of Regulation D under the Securities Act
and the Transfer complies with the transfer restrictions applicable to
beneficial interests in a Restricted Global Note or Restricted Definitive Notes
and the requirements of the exemption claimed, which certification is supported
by (1) an Opinion of Counsel provided by the Transferor or the Transferee (a
copy of which the Transferor has attached to this certification), to the effect
that such Transfer is in compliance with the Securities Act. Upon consummation
of the proposed transfer in accordance with the terms of the Indenture, the
transferred beneficial interest or Definitive Note shall be subject to the
restrictions on transfer enumerated in the Private Placement Legend printed on
the Definitive Notes and in the Indenture and the Securities Act.
5. [_] Check if Transferee shall take delivery of a beneficial
-------------------------------------------------------
interest in an Unrestricted Global Note or of an Unrestricted Definitive Note.
------------------------------------------------------------------------------
(a) [_] Check if Transfer is pursuant to Rule 144. (i) The
-----------------------------------------
Transfer is being effected pursuant to and in accordance with Rule 144 under the
B-4
Securities Act and in compliance with the transfer restrictions contained in the
Indenture and any applicable blue sky securities laws of any state of the United
States and (ii) the restrictions on transfer contained in the Indenture and the
Private Placement 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 beneficial interest or
Definitive Note shall no longer be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the Restricted Global
Notes, on Restricted Definitive Notes and in the Indenture.
(b) [_] Check if Transfer is Pursuant to Regulation S. (i) The
---------------------------------------------
Transfer is being effected pursuant to and in accordance with Rule 903 or Rule
904 under the Securities Act and in compliance with the transfer restrictions
contained in the Indenture and any applicable blue sky securities laws of any
state of the United States and (ii) the restrictions on transfer contained in
the Indenture and the Private Placement 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
beneficial interest or Definitive Note shall no longer be subject to the
restrictions on transfer enumerated in the Private Placement Legend printed on
the Restricted Global Notes, on Restricted Definitive Notes and in the
Indenture.
(c) [_] Check if Transfer is Pursuant to Other Exemption. (i)
------------------------------------------------
The Transfer is being effected pursuant to and in compliance with an exemption
from the registration requirements of the Securities Act other than Rule 144,
Rule 903 or Rule 904 and in compliance with the transfer restrictions contained
in the Indenture and any applicable blue sky securities laws of any State of the
United States and (ii) the restrictions on transfer contained in the Indenture
and the Private Placement 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 beneficial
interest or Definitive Note shall not be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the Restricted Global
Notes or Restricted Definitive Notes and in the Indenture.
B-5
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:_________, ______
B-6
ANNEX A TO CERTIFICATE OF TRANSFER
1. The Transferor owns and proposes to transfer the following:
[CHECK ONE OF (a) OR (b)]
(a) [_] a beneficial interest in the:
(i) [_] 144A Global Note (CUSIP _________), or
(ii) [_] Regulation S Global Note (CUSIP ______), or
(iii) [_] IAI Global Note (CUSIP _________), or
(iv) [_] a Restricted Definitive Note.
1. After the Transfer the Transferee shall hold:
[CHECK ONE]
(a) [_] a beneficial interest in the:
(i) [_] 144A Global Note (CUSIP ________), or
(ii) [_] (ii) Regulation S Global Note (CUSIP _____), or
(iii) [_] IAI Global Note (CUSIP ______), or
(iv) [_] Unrestricted Global Note (CUSIP ______); or
(b) [_] a Restricted Definitive Note; or
(c) [_] an Unrestricted Definitive Note, in accordance
with the terms of the Indenture.
B-7
EXHIBIT C
FORM OF CERTIFICATE OF EXCHANGE
iPCS, Inc.
000 Xxxx Xxxxx Xxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
CTC Illinois Trust Company
0 Xxxxx XxXxxxx Xxxxxx
Xxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Re: 14% Senior Discount Notes due 2010 of iPCS, Inc.
(CUSIP______________)
Reference is hereby made to the Indenture, dated as of July 12, 2000
(the "Indenture"), among iPCS, Inc., as issuer (the "Company"), iPCS Equipment,
--------- -------
Inc. and iPCS Wireless, Inc., as guarantors, and CTC Illinois Trust Company, as
trustee. Capitalized terms used but not defined herein shall have the meanings
given to them in the Indenture.
____________, (the "Owner") owns and proposes to exchange the Note[s]
-----
or interest in such Note[s] specified herein, in the principal amount of
$____________ in such Note[s] or interests (the "Exchange"). In connection with
--------
the Exchange, the Owner hereby certifies that:
1. Exchange of Restricted Definitive Notes or Beneficial Interests
in a Restricted Global Note for Unrestricted Definitive Notes or Beneficial
Interests in an Unrestricted Global Note
(a) [_] Check if Exchange is from beneficial interest in a
--------------------------------------------------
Restricted Global Note to beneficial interest in an Unrestricted Global Note.
----------------------------------------------------------------------------
In connection with the Exchange of the Owner's beneficial interest in a
Restricted Global
C-1
Note for a beneficial interest in an Unrestricted Global Note in an equal
principal amount, the Owner hereby certifies (i) the beneficial interest is
being acquired for the Owner's own account without transfer, (ii) such Exchange
has been effected in compliance with the transfer restrictions applicable to the
Global Notes and pursuant to and in accordance with the United States Securities
Act of 1933 (the "Securities Act"), (iii) the restrictions on transfer contained
--------------
in the Indenture and the Private Placement Legend are not required in order to
maintain compliance with the Securities Act and (iv) the beneficial interest in
an Unrestricted Global Note is being acquired in compliance with any applicable
blue sky securities laws of any state of the United States.
(b) [_] Check if Exchange is from beneficial interest in a
--------------------------------------------------
Restricted Global Note to Unrestricted Definitive Note. In connection with the
------------------------------------------------------
Exchange of the Owner's beneficial interest in a Restricted Global Note for an
Unrestricted Definitive Note, the Owner hereby certifies (i) the Definitive Note
is being acquired for the Owner's own account without transfer, (ii) such
Exchange has been effected in compliance with the transfer restrictions
applicable to the Restricted Global Notes and pursuant to and in accordance with
the Securities Act, (iii) the restrictions on transfer contained in the
Indenture and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act and (iv) the Definitive Note is being
acquired in compliance with any applicable blue sky securities laws of any state
of the United States.
(c) [_] Check if Exchange is from Restricted Definitive Note to
-------------------------------------------------------
beneficial interest in an Unrestricted Global Note. In connection with the
--------------------------------------------------
Owner's Exchange of a Restricted Definitive Note for a beneficial interest in an
Unrestricted Global Note, the Owner hereby certifies (i) the beneficial interest
is being acquired for the Owner's own account without transfer, (ii) such
Exchange has been effected in compliance with the transfer restrictions
applicable to Restricted Definitive Notes and pursuant to and in accordance with
the Securities Act, (iii) the restrictions on transfer contained in the
Indenture and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act and (iv) the beneficial interest is being
acquired in compliance with any applicable blue sky securities laws of any state
of the United States.
(d) [_] Check if Exchange is from Restricted Definitive Note to
-------------------------------------------------------
Unrestricted Definitive Note. In connection with the Owner's Exchange of a
----------------------------
Restricted Definitive Note for an Unrestricted Definitive Note, the Owner hereby
certifies (i) the Unrestricted Definitive Note is being acquired for the Owner's
own account without transfer, (ii) such Exchange has been effected in compliance
with the
C-2
transfer restrictions applicable to Restricted Definitive Notes and pursuant to
and in accordance with the Securities Act, (iii) the restrictions on transfer
contained in the Indenture and the Private Placement Legend are not required in
order to maintain compliance with the Securities Act and (iv) the Unrestricted
Definitive Note is being acquired in compliance with any applicable blue sky
securities laws of any state of the United States.
2. Exchange of Restricted Definitive Notes or Beneficial Interests
in Restricted Global Notes for Restricted Definitive Notes or Beneficial
Interests in Restricted Global Notes
(a) [_] Check if Exchange is from beneficial interest in a
--------------------------------------------------
Restricted Global Note to Restricted Definitive Note. In connection with the
----------------------------------------------------
Exchange of the Owner's beneficial interest in a Restricted Global Note for a
Restricted Definitive Note with an equal principal amount, the Owner hereby
certifies that the Restricted Definitive Note is being acquired for the Owner's
own account without transfer. Upon consummation of the proposed Exchange in
accordance with the terms of the Indenture, the Restricted Definitive Note
issued shall continue to be subject to the restrictions on transfer enumerated
in the Private Placement Legend printed on the Restricted Definitive Note and in
the Indenture and the Securities Act.
(b) [_] Check if Exchange is from Restricted Definitive Note to
-------------------------------------------------------
beneficial interest in a Restricted Global Note. In connection with the
-----------------------------------------------
Exchange of the Owner's Restricted Definitive Note for a beneficial interest in
the 144A Global Note Regulation S Global Note IAI Global Note, with an equal
principal amount, the Owner hereby certifies (i) the beneficial interest is
being acquired for the Owner's own account without transfer and (ii) such
Exchange has been effected in compliance with the transfer restrictions
applicable to the Restricted Global Notes and pursuant to and in accordance with
the Securities Act, and in compliance with any applicable blue sky securities
laws of any state of the United States. Upon consummation of the proposed
Exchange in accordance with the terms of the Indenture, the beneficial interest
issued shall be subject to the restrictions on transfer enumerated in the
Private Placement Legend printed on the relevant Restricted Global Note and in
the Indenture and the Securities Act.
C-3
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company.
_____________________________________
[Insert Name of Owner]
By:__________________________________
Name:
Title:
Dated: ________________, ____
C-4
EXHIBIT D
FORM OF NOTATION ON NOTE RELATING TO NOTE GUARANTEE
Each Guarantor, as defined in the Indenture (the "Indenture"),
referred to in the Note upon which this notation is endorsed, (i) has jointly
and severally unconditionally guaranteed (a) the full and punctual payment of
the principal of, premium and interest and Liquidated Damages, if any, on the
Notes, whether at maturity or an interest payment date, by acceleration, call
for redemption or otherwise, (b) the full and punctual payment of interest on
the overdue principal and premium of, and interest and Liquidated Damages, if
any, on the Notes, and (c) in case of any extension of time of payment or
renewal of any Notes or any of such other obligations, the same shall be
promptly paid in full when due in accordance with the terms of the extension or
renewal, whether at stated maturity, by acceleration or otherwise and (ii) has
agreed to pay any and all costs and expenses (including reasonable attorneys'
fees) incurred by the Trustee or any Holder in enforcing any rights under this
Note Guarantee.
Notwithstanding the foregoing, in the event that the Guarantor would
constitute or result in a violation of any applicable fraudulent conveyance or
similar law of any relevant jurisdiction, the liability of such Guarantor under
its Note Guarantee shall be reduced to the maximum amount permissible under such
fraudulent conveyance or similar law.
No past, present or future director, officer, employee, agent,
incorporator, stockholder or agent of any Guarantor, as such, shall have any
liability for any obligations of the Company or any Guarantor under the Notes,
any Note Guarantee, Indenture, any supplemental Indenture delivered pursuant to
the Indenture by such Guarantor or any Note Guarantees, or for any claim based
on, in respect of or by reason of such obligations or their creation. Each
Holder by accepting a Note waives and releases all such liability.
This Note Guarantee shall be binding upon each Guarantor and its
successors and assigns and shall inure to the benefit of the successors and
assigns of the Trustee and the Holders and, in the event of any transfer or
assignment of rights by the Holder or the Trustee, the rights and privileges
herein conferred upon that party shall automatically extend to and be vested in
such transferee or assignee, all subject to the terms and conditions hereof.
D-1
This Note Guarantee shall not be valid or obligatory for any purpose
until the certificate of authentication on the Note upon which this Note
Guarantee is noted have been executed by the Trustee under the Indenture by the
manual signature of one of its authorized officers. Capitalized terms used
herein have the meaning assigned to them in the Indenture.
GUARANTOR
By:_______________________________
Name:
Title:
D-2
EXHIBIT E
FORM OF SUPPLEMENTAL INDENTURE
TO BE DELIVERED BY GUARANTORS
SUPPLEMENTAL INDENTURE (this "Supplemental Indenture"), dated as of
_____________, among ______________ (the "Guarantor"), a subsidiary of iPCS,
Inc. (or its permitted successor), a Delaware corporation (the "Company") and
CTC Illinois Trust Company, as trustee under the indenture referred to below
(the "Trustee").
WITNESSETH
WHEREAS, the Company has heretofore executed and delivered to the
Trustee an indenture (the "Indenture"), dated as of July 12, 2000 providing for
the issuance of an aggregate principal amount of up to $300 million of 14%
Senior Discount Notes due 2010 (the "Notes");
WHEREAS, the Indenture provides that under certain circumstances the
Guarantor shall execute and deliver to the Trustee a supplemental indenture
pursuant to which the Guarantor shall unconditionally guarantee all of the
Company's Obligations under the Notes and the Indenture on the terms and
conditions set forth herein (the "Note Guarantee"); and
WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee is
authorized to execute and deliver this Supplemental Indenture.
NOW, THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt of which is hereby acknowledged, the
Guarantor and the Trustee mutually covenant and agree for the equal and ratable
benefit of the Holders of the Notes as follows:
1. Capitalized Terms. Capitalized Terms used herein without
-----------------
definition shall have the meanings assigned to them in the Indenture.
2. Agreement to Guarantee. The Guarantor hereby agrees as follows:
----------------------
E-1
(a) Along with all Guarantors, to jointly and severally
Guarantee to each Holder of a Note authenticated and delivered by the Trustee
and to the Trustee and its successors and assigns, irrespective of the validity
and enforceability of the Indenture, the Notes or the Obligations of the Company
hereunder or thereunder, that:
(i) the principal of, premium, if any, and interest and
Liquidated Damages, if any, on the Notes shall be
promptly paid in full when due, whether at maturity, by
acceleration, redemption or otherwise, and interest on
the overdue principal of to the extent and interest and
Liquidation Damages, if any, on the Notes to the extent
lawful, and all other Obligations of the Company to the
Holders or the Trustee hereunder or under the Indenture
shall be promptly paid in full or performed, all in
accordance with the terms hereof and under the
Indenture;
(ii) in case of any extension of time of payment or renewal
of any Notes or any of such other Obligations, that
same shall be promptly paid in full when due or
performed in accordance with the terms of the extension
or renewal, whether at stated maturity, by acceleration
or otherwise. Failing payment when due of any amount so
guaranteed or any performance so guaranteed for
whatever reason, the Guarantors shall be jointly and
severally obligated to pay the same immediately.
(b) The obligations hereunder shall be unconditional,
irrespective of the validity, regularity or enforceability of the Notes or the
Indenture, the absence of any action to enforce the same, any waiver or consent
by any Holder of the Notes 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.
E-2
(c) The following is hereby waived: 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.
(d) This Note Guarantee shall not be discharged except by
complete performance of the obligations contained in the Notes and the
Indenture.
(e) If any Holder or the Trustee is required by any court or
otherwise to return to the Company, the Guarantors, or any Custodian, Trustee,
liquidator or other similar official acting in relation to either the Company or
the Guarantors, any amount paid by either to the Trustee or such Holder, this
Note Guarantee, to the extent theretofore discharged, shall be reinstated in
full force and effect.
(f) The Guarantor shall not be entitled to any right of
subrogation in relation to the Holders in respect of any obligations guaranteed
hereby until payment in full of all obligations guaranteed hereby.
(g) As between the Guarantors, on the one hand, the Holders and
the Trustee, on the other hand, (x) the maturity of the obligations guaranteed
hereby may be accelerated as provided in Article 6 of the Indenture for the
purposes of this Note 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 declaration of acceleration of
such obligations as provided in Article 6 of the Indenture, such obligations
(whether or not due and payable) shall forthwith become due and payable by the
Guarantors for the purpose of this Note Guarantee.
(h) The Guarantors shall have the right to seek contribution
from non-paying Guarantor so long as the exercise of such right does not impair
the rights of the Holders under the Note Guarantee.
(i) Notwithstanding the foregoing, in the event that this Note
Guarantee would constitute or result in a violation of any applicable fraudulent
conveyance or similar law of any relevant jurisdiction, the liability of the
Guarantor under this Supplemental Indenture and its Note Guarantee shall be
reduced to the maximum amount permissible under such fraudulent conveyance or
similar law.
E-3
(j) Notwithstanding anything herein to the contrary, all
obligations of the Guarantor hereunder shall be subordinated to the prior
payment of Senior Debt to the same extent that the Notes are subordinated
pursuant to Article 11 of the Indenture.
3. Execution and Delivery. Each Guarantor agrees that the Note
----------------------
Guarantees shall remain in full force and effect notwithstanding any failure to
endorse on each Note a notation of such Note Guarantee.
4. Guarantor May Consolidate, Etc. on Certain Terms.
------------------------------------------------
(a) A Guarantor may not sell or otherwise dispose of all or
substantially all of its assets, or consolidate with or merge with or into
another Person, other than the Company or another Guarantor, unless:
(i) immediately after giving effect to the transaction,
no Default exists under the Indenture; and
(ii) Either
a. the Person acquiring the assets in any such sale
or disposition or the Person formed by or
surviving any such consolidation or merger (if
other than a Guarantor or the Company)
unconditionally assumes all the obligations of
such Guarantor, pursuant to a supplemental
Indenture in form and substance reasonably
satisfactory to the Trustee, under the Notes, the
Indenture, and the Note Guarantee on the terms
set forth herein or therein; or
b. the Net Proceeds of the transactions are applied
in accordance with Section 4.10 of the Indenture
(it being understood that in the event that such
Net Proceeds are not so applied, the Company will
be permitted and required to make an Asset Sale
Offer with
E-4
any Excess Proceed in satisfaction of this
condition).
(b) In case of any such consolidation, merger, sale or
conveyance and upon the assumption by the successor Person, by supplemental
Indenture, executed and delivered to the Trustee and satisfactory in form to the
Trustee, of the Note Guarantee endorsed upon the Notes and the due and punctual
performance of all of the covenants and conditions of this Indenture to be
performed by the Guarantor, such successor Person shall succeed to and be
substituted for the Guarantor with the same effect as if it had been named
herein as a Guarantor. Such successor Person thereupon may cause to be signed
any or all of the Note Guarantees to be endorsed upon all of the Notes issuable
hereunder which theretofore shall not have been signed by the Company and
delivered to the Trustee. All the Note Guarantees so issued shall in all
respects have the same legal rank and benefit under this Indenture as the Note
Guarantees theretofore and thereafter issued in accordance with the terms of
this Indenture as though all of such Note Guarantees had been issued at the date
of the execution hereof.
(c) Except as set forth in Articles IV and V of the Indenture,
and notwithstanding clause (a) and (b) of Section 12.05 of the Indenture,
nothing contained in the Indenture or in any of the Notes shall prevent any
consolidation or merger of a Guarantor with or into the Company or another
Guarantor, or shall prevent any sale or conveyance of the property of a
Guarantor as an entirety or substantially as an entirety to the Company or
another Guarantor.
5. Releases.
---------
(a) A Note Guarantee will be released (a) in connection with any
sale of all of the Capital Stock of a Guarantor to a Person (including by way of
merger or consolidation) that is not (either before or after giving effect to
such transaction) a Subsidiary of the Company, if the Net Proceeds of that
transaction are applied (or the Company delivers an Officer's Certificate to the
Trustee certifying that such Net Proceeds will be applied within the time period
specified in Section 4.10) in accordance with Section 4.10 of the Indenture, (b)
if the Company properly designates any Restricted Subsidiary that is a Guarantor
as an Unrestricted Subsidiary in accordance with Section 4.20 of the Indenture
or (c) in connection with any sale or other disposition of all or substantially
all of the assets of the Guarantor, including by way of merger or consolidation,
provided, however, that in the event of such a transaction, the
E-5
Company still has the obligation to apply the Net Proceeds as set forth in
Section 4.10 of the Indenture.
(b) Any Guarantor not released from its obligations under its
Note Guarantee shall remain liable for the full amount of principal of and
interest on the Notes and for the other obligations of any Guarantor under the
Indenture as provided in the Indenture.
6. No Recourse Against Others. No past, present or future director,
--------------------------
officer, employee, incorporator, stockholder or agent of the Guarantor, as such,
shall have any liability for any obligations of the Company or any Guarantor
under the Notes, any Note Guarantees, the Indenture or this Supplemental
Indenture or for any claim based on, in respect of, or by reason of, such
obligations or their creation. Each Holder of Notes by accepting a Note waives
and releases all such liability. The waiver and release are part of the
consideration for issuance of the Notes. Such waiver may not be effective to
waive liabilities under the federal securities laws and it is the view of the
SEC that such a waiver is against public policy.
7. NEW YORK LAW TO GOVERN. THE INTERNAL LAW OF THE STATE OF NEW
----------------------
YORK SHALL GOVERN AND BE USED TO CONSTRUE THIS SUPPLEMENTAL INDENTURE BUT
WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT
THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED
THEREBY.
8. Counterparts. The parties may sign any number of copies of this
------------
Supplemental Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement.
9. Effect of Headings. The Section headings herein are for
------------------
convenience only and shall not affect the construction hereof.
10. The Trustee. The Trustee shall not be responsible in any manner
-----------
whatsoever for or in respect of the validity or sufficiency of this Supplemental
Indenture or for or in respect of the recitals contained herein, all of which
recitals are made solely by the Guarantor and the Company.
E-6
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed and attested, all as of the date first above
written.
Dated: ____________________
[Guaranteeing Subsidiary]
By: ________________________________________
Name:
Title:
CTC ILLINOIS TRUST COMPANY, as Trustee
By: ________________________________________
Name:
Title:
E-7
EXHIBIT F
FORM OF CERTIFICATE FROM
ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR
iPCS, Inc.
000 Xxxx Xxxxx Xxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
CTC Illinois Trust Company
0 Xxxxx XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Re: 14% Senior Discount Notes due 2010
------------------------------------
Reference is hereby made to the Indenture, dated as of July 12, 2000
(the "Indenture"), among iPCS, Inc., as issuer (the "Company"), iPCS Equipment,
Inc. and iPCS Wireless, Inc., as guarantors, and CTC Illinois Trust Company, as
trustee. Capitalized terms used but not defined herein shall have the meanings
given to them in the Indenture.
In connection with our proposed purchase of $____________ aggregate
principal amount of:
(a) [_] a beneficial interest in a Global Note, or
(b) [_] a Definitive Note, we confirm that:
1. We understand that any subsequent transfer of the Notes or any
interest therein is subject to certain restrictions and conditions set forth in
the Indenture and the undersigned agrees to be bound by, and not to resell,
pledge or otherwise transfer the Notes or any interest therein except in
compliance with, such restrictions and conditions and the United States
Securities Act of 1933, as amended (the "Securities Act").
F-1
2. We understand that the offer and sale of the Notes have not been
registered under the Securities Act, and that the Notes and any interest therein
may not be offered or sold except as permitted in the following sentence. We
agree, on our own behalf and on behalf of any accounts for which we are acting
as hereinafter stated, that if we should sell the Notes or any interest therein,
we will do so only (A) to the Company or any subsidiary thereof, (B) in
accordance with Rule 144A under the Securities Act to a "qualified institutional
buyer" (as defined therein), (C) to an institutional "accredited investor" (as
defined below) that, prior to such transfer, furnishes (or has furnished on its
behalf by a U.S. broker-dealer) to you and to the Company a signed letter
substantially in the form of this letter and, if such transfer is in respect of
a principal amount of Notes, at the time of transfer of less than $250,000, an
Opinion of Counsel in form reasonably acceptable to the Company to the effect
that such transfer is in compliance with the Securities Act, (D) outside the
United States in accordance with Rule 904 of Regulation S under the Securities
Act, (E) pursuant to the provisions of Rule 144(k) under the Securities Act or
(F) pursuant to an effective registration statement under the Securities Act,
and we further agree to provide to any person purchasing the Definitive Note or
beneficial interest in a Global Note from us in a transaction meeting the
requirements of clauses (A) through (E) of this paragraph a notice advising such
purchaser that resales thereof are restricted as stated herein.
3. We understand that, on any proposed resale of the Notes or
beneficial interest therein, we will be required to furnish to you and the
Company such certifications, legal opinions and other information as you and the
Company may reasonably require to confirm that the proposed sale complies with
the foregoing restrictions. We further understand that the Notes purchased by
us will bear a legend to the foregoing effect.
4. We are an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act) and have
such knowledge and experience in financial and business matters as to be capable
of evaluating the merits and risks of our investment in the Notes, and we and
any accounts for which we are acting are each able to bear the economic risk of
our or its investment.
5. We are acquiring the Notes or beneficial interest therein
purchased by us for our own account or for one or more accounts (each of which
is an institutional "accredited investor") as to each of which we exercise sole
investment discretion.
F-2
You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby.
____________________________________________
[Insert Name of Accredited Investor]
By: ________________________________________
Name:
Title:
Dated: ____________________
F-3
