Exhibit 4.1
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IWO ESCROW COMPANY
SENIOR SECURED FLOATING RATE NOTES DUE 2012
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INDENTURE
DATED AS OF JANUARY 6, 2005
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U.S. BANK NATIONAL ASSOCIATION
TRUSTEE
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CROSS-REFERENCE TABLE*
Trust Indenture
Act Section Indenture Section
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)........................................... 13.03
(c)........................................... 13.03
313(a)............................................. 7.06
(b)(1)........................................ 10.03
(b)(2)........................................ 7.06; 7.07
(c)........................................... 7.06; 10.03;13.02
(d)........................................... 7.06
314(a)............................................. 4.03;13.02; 13.05
(b)........................................... 10.02
(c)(1)........................................ 13.04
(c)(2)........................................ 13.04
(c)(3)........................................ N.A.
(d)........................................... 10.03; 10.04; 10.05
(e)........................................... 13.05
(f)........................................... N.A.
315(a)............................................. 7.01
(b)........................................... 7.05; 12.02
(c)........................................... 7.01
(d)........................................... 7.01
(e)........................................... 6.11
316(a) (last sentence)............................. 2.09
(a)(1)(A)..................................... 6.05
(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)............................................. 12.01
(b)........................................... N.A.
(c)........................................... 13.01
N.A. means not applicable.
* This Cross Reference Table is not part of this Indenture.
TABLE OF CONTENTS
Page
ARTICLE 1
DEFINITIONS AND INCORPORATION
BY REFERENCE
Section 1.01 Definitions................................................................................................1
Section 1.02 Other Definitions.........................................................................................19
Section 1.03 Incorporation by Reference of Trust Indenture Act.........................................................20
Section 1.04 Rules of Construction.....................................................................................20
ARTICLE 2
THE NOTES
Section 2.01 Form and Dating...........................................................................................21
Section 2.02 Execution and Authentication..............................................................................22
Section 2.03 Registrar and Paying Agent................................................................................22
Section 2.04 Paying Agent to Hold Money in Trust.......................................................................23
Section 2.05 Holder Lists..............................................................................................23
Section 2.06 Transfer and Exchange.....................................................................................23
Section 2.07 Replacement Notes.........................................................................................35
Section 2.08 Outstanding Notes.........................................................................................35
Section 2.09 Treasury Notes............................................................................................36
Section 2.10 Temporary Notes...........................................................................................36
Section 2.11 Cancellation..............................................................................................36
Section 2.12 Defaulted Interest........................................................................................36
ARTICLE 3
REDEMPTION AND PREPAYMENT
Section 3.01 Notices to Trustee........................................................................................36
Section 3.02 Selection of Notes to Be Redeemed or Purchased............................................................37
Section 3.03 Notice of Redemption......................................................................................37
Section 3.04 Effect of Notice of Redemption............................................................................38
Section 3.05 Deposit of Redemption or Purchase Price...................................................................38
Section 3.06 Notes Redeemed or Purchased in Part.......................................................................39
Section 3.07 Optional Redemption.......................................................................................39
Section 3.08 Special Redemptions.......................................................................................39
Section 3.09 Offer to Purchase by Application of Excess Proceeds.......................................................40
ARTICLE 4
COVENANTS
Section 4.01 Payment of Notes..........................................................................................42
Section 4.02 Maintenance of Office or Agency...........................................................................42
Section 4.03 Reports...................................................................................................42
Section 4.04 Compliance Certificate....................................................................................43
Section 4.05 Taxes.....................................................................................................44
Section 4.06 Stay, Extension and Usury Laws............................................................................44
Section 4.07 Restricted Payments.......................................................................................44
Section 4.08 Dividend and Other Payment Restrictions Affecting Subsidiaries............................................47
Section 4.09 Incurrence of Indebtedness and Issuance of Preferred Stock................................................48
Section 4.10 Asset Sales...............................................................................................51
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Section 4.11 Transactions with Affiliates..............................................................................52
Section 4.12 Liens.....................................................................................................53
Section 4.13 Business Activities.......................................................................................53
Section 4.14 Corporate Existence.......................................................................................54
Section 4.15 Offer to Repurchase Upon Change of Control................................................................54
Section 4.16 Payments for Consent......................................................................................55
Section 4.17 Additional Note Guarantees................................................................................55
Section 4.18 Designation of Restricted and Unrestricted Subsidiaries...................................................55
ARTICLE 5
SUCCESSORS
Section 5.01 Merger, Consolidation, or Sale of Assets..................................................................56
Section 5.02 Successor Corporation Substituted.........................................................................57
ARTICLE 6
DEFAULTS AND REMEDIES
Section 6.01 Events of Default.........................................................................................57
Section 6.02 Acceleration..............................................................................................60
Section 6.03 Other Remedies............................................................................................60
Section 6.04 Waiver of Past Defaults...................................................................................60
Section 6.05 Control by Majority.......................................................................................61
Section 6.06 Limitation on Suits.......................................................................................61
Section 6.07 Rights of Holders of Notes to Receive Payment.............................................................61
Section 6.08 Collection Suit by Trustee................................................................................62
Section 6.09 Trustee May File Proofs of Claim..........................................................................62
Section 6.10 Priorities................................................................................................62
Section 6.11 Undertaking for Costs.....................................................................................63
ARTICLE 7
TRUSTEE
Section 7.01 Duties of Trustee.........................................................................................63
Section 7.02 Rights of Trustee.........................................................................................64
Section 7.03 Individual Rights of Trustee..............................................................................64
Section 7.04 Trustee's Disclaimer......................................................................................65
Section 7.05 Notice of Defaults........................................................................................65
Section 7.06 Reports by Trustee to Holders of the Notes................................................................65
Section 7.07 Compensation and Indemnity................................................................................65
Section 7.08 Replacement of Trustee....................................................................................66
Section 7.09 Successor Trustee by Merger, etc..........................................................................67
Section 7.10 Eligibility; Disqualification.............................................................................67
Section 7.11 Preferential Collection of Claims Against Company.........................................................67
ARTICLE 8
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.01 Option to Effect Legal Defeasance or Covenant Defeasance..................................................67
Section 8.02 Legal Defeasance and Discharge............................................................................67
Section 8.03 Covenant Defeasance.......................................................................................68
Section 8.04 Conditions to Legal or Covenant Defeasance................................................................68
Section 8.05 Deposited Money and Government Securities to be Held in Trust; Other Miscellaneous Provisions.............70
Section 8.06 Repayment to Company......................................................................................70
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Section 8.07 Reinstatement.............................................................................................70
ARTICLE 9
AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.01 Without Consent of Holders of Notes.......................................................................71
Section 9.02 With Consent of Holders of Notes..........................................................................72
Section 9.03 Compliance with Trust Indenture Act.......................................................................73
Section 9.04 Revocation and Effect of Consents.........................................................................73
Section 9.05 Notation on or Exchange of Notes..........................................................................73
Section 9.06 Trustee to Sign Amendments, etc...........................................................................73
ARTICLE 10
SECURITY AGREEMENTS
Section 10.01. Escrow Agreement and Security Agreement...................................................................74
Section 10.02. Recording and Opinions....................................................................................74
Section 10.03. Release of Collateral.....................................................................................75
Section 10.04. Certificates of the Company...............................................................................76
Section 10.05. Certificates of the Trustee...............................................................................77
Section 10.06. Authorization of Actions to Be Taken Under the Security Agreement.........................................77
Section 10.07. Authorization of Receipt of Funds by the Trustee Under the Security Agreement.............................78
Section 10.08. Termination of Security Interest..........................................................................78
ARTICLE 11
NOTE GUARANTEES
Section 11.01 Guarantee.................................................................................................78
Section 11.02 Limitation on Guarantor Liability.........................................................................79
Section 11.03 Execution and Delivery of Note Guarantee..................................................................79
Section 11.04 Guarantors May Consolidate, etc., on Certain Terms........................................................80
Section 11.05 Releases..................................................................................................80
ARTICLE 12
satisfaction and discharge
Section 12.01 Satisfaction and Discharge................................................................................81
Section 12.02 Application of Trust Money................................................................................82
ARTICLE 13
MISCELLANEOUS
Section 13.01 Trust Indenture Act Controls..............................................................................82
Section 13.02 Notices...................................................................................................82
Section 13.03 Communication by Holders of Notes with Other Holders of Notes.............................................84
Section 13.04 Certificate and Opinion as to Conditions Precedent........................................................84
Section 13.05 Statements Required in Certificate or Opinion.............................................................84
Section 13.06 Rules by Trustee and Agents...............................................................................84
Section 13.07 No Personal Liability of Directors, Officers, Employees and Stockholders..................................84
Section 13.08 Governing Law.............................................................................................85
Section 13.09 No Adverse Interpretation of Other Agreements.............................................................85
Section 13.10 Successors................................................................................................85
Section 13.11 Severability..............................................................................................85
Section 13.12 Counterpart Originals.....................................................................................85
Section 13.13 Table of Contents, Headings, etc..........................................................................85
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EXHIBITS
Exhibit A1 FORM OF NOTE
Exhibit A2 FORM OF REGULATION S TEMPORARY GLOBAL NOTE
Exhibit B FORM OF CERTIFICATE OF TRANSFER
Exhibit C FORM OF CERTIFICATE OF EXCHANGE
Exhibit D FORM OF CERTIFICATE OF ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR
Exhibit E FORM OF NOTATION OF GUARANTEE
Exhibit F FORM OF SUPPLEMENTAL INDENTURE
Exhibit G ESCROW AGREEMENT
Exhibit H FORM OF SECURITY AGREEMENT
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INDENTURE dated as of January 6, 2005 between IWO ESCROW COMPANY, a
Delaware corporation, and U.S. BANK NATIONAL ASSOCIATION, as trustee.
IWO Escrow Company is expected to merge with and into IWO Holdings,
Inc., a Delaware corporation (the "Merger") of which IWO Holdings, Inc. is
expected to be the surviving entity. Upon the consummation of the Merger, the
merged company will assume all of the obligations of IWO Escrow Company under
this Indenture and the Notes (as defined herein). Unless specifically indicated
otherwise, the term "Company" means IWO Escrow Company on the date hereof until
the time of the Merger and thereafter means the merged entity known as IWO
Holdings, Inc., in each case, together with its successors in accordance with
the terms of this Indenture.
The Company and the Trustee agree as follows for the benefit of each
other and for the equal and ratable benefit of the Holders (as defined) of THE
Senior Secured Floating Rate Notes due 2012 (the "Notes"):
ARTICLE 1
DEFINITIONS AND INCORPORATION
BY REFERENCE
Section 1.01 Definitions.
"144A Global Note" means a Global Note substantially in the form of
Exhibit A1 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 will be issued in a denomination equal to the
outstanding principal amount of the Notes sold in reliance on Rule 144A.
"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 Restricted Subsidiary of, such specified
Person; and
(2) Indebtedness secured by a Lien encumbering any asset
acquired by such specified Person.
"Additional Notes" means Notes (other than the Initial Notes) issued
under this Indenture in accordance with Sections 2.02 and 4.09 hereof, as part
of the same series as the Initial Notes.
"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, means 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 will be deemed to be control. For purposes of this
definition, the terms "controlling," "controlled by" and "under common control
with" have correlative meanings.
"Agent" means any Registrar, co-registrar, Paying Agent or additional
paying agent.
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"Annualized Consolidated Cash Flow" of any specified Person as of any
date of determination means two times the Consolidated Cash Flow of such Person
for the most recently ended two-quarter period for which internal financial
statements are available.
"Applicable Eurodollar Rate" means, for each quarterly period during
which any Note is outstanding subsequent to the initial quarterly period, 375
basis points over the rate determined by the Company (notice of such rate to be
sent to the Trustee on the date of determination thereof) equal to the
applicable British Bankers' Association LIBOR rate for deposits in U.S. dollars
for a period of three months as reported by any generally recognized financial
information service as of 11:00 a.m. (London time) two Business Days prior to
the first day of such quarterly period; provided that, if no such British
Bankers' Association LIBOR rate is available at the time of such determination,
the Applicable Eurodollar Rate for the relevant quarterly period shall instead
be the rate at which Bear, Xxxxxxx & Co. Inc. or one of its affiliate banks
offers to place deposits in U.S. dollars with first-class banks in the London
interbank market for a period of three months at approximately 11:00 a.m.
(London time) two Business Days prior to the first day of such quarterly period,
in amounts equal to $1.0 million.
"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, Euroclear and Clearstream that apply to such
transfer or exchange.
"Asset Sale" means:
(1) the sale, lease, conveyance or other disposition of any
assets or rights; provided that the sale, lease, conveyance or other
disposition of all or substantially all of the assets of the Company
and its Restricted Subsidiaries taken as a whole will be governed by
the provisions of Section 4.15 and/or Section 5.01 hereof and not by
the provisions of Section 4.10 hereof; and
(2) the issuance of Equity Interests in any of the
Company's Restricted Subsidiaries or the sale of Equity Interests in
any of its Subsidiaries.
Notwithstanding the preceding, none of the following items
will be deemed to be an Asset Sale:
(1) any single transaction or series of related
transactions that involves assets having a Fair Market Value of less
than $2.0 million;
(2) a transfer of assets between or among the Company and
its Restricted Subsidiaries;
(3) an issuance of Equity Interests by a Restricted
Subsidiary of the Company to the Company or to a Restricted
Subsidiary of the Company;
(4) the sale or lease of products, services or accounts
receivable in the ordinary course of business and any sale or other
disposition of damaged, worn-out or obsolete assets in the ordinary
course of business;
(5) the sale or other disposition of cash or Cash
Equivalents; and
(6) a Restricted Payment that does not violate the covenant
described under Section 4.07 hereof or a Permitted Investment.
2
"Bankruptcy Law" means Title 11, U.S. Code or any similar federal or
state law for the relief of debtors.
"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 that term is used in Section
13(d)(3) of the Exchange Act), such "person" will be deemed to have beneficial
ownership of all securities that such "person" has the right to acquire by
conversion or exercise of other securities, whether such right is currently
exercisable or is exercisable only after the passage of time. The terms
"Beneficially Owns" and "Beneficially Owned" have a corresponding meaning.
"Board of Directors" means:
(1) with respect to a corporation, the Board of Directors
of the corporation or any committee thereof duly authorized to act on
behalf of such board;
(2) with respect to a partnership, the Board of Directors
of the general partner of the partnership;
(3) with respect to a limited liability company, the
managing member or members or any controlling committee of managing
members thereof; and
(4) with respect to any other Person, the board or
committee of such Person serving a similar function.
"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 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 prepared in
accordance with GAAP, and the Stated Maturity thereof shall be the date of the
last payment of rent or any other amount due under such lease prior to the first
date upon which such lease may be prepaid by the lessee without payment of a
penalty.
"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 interests (whether general or limited) or
membership interests; 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, but excluding from
all of the foregoing any debt securities convertible into Capital
Stock, whether or not such debt securities include any right of
participation with Capital Stock.
"Cash Equivalents" means:
(1) United States dollars;
3
(2) securities issued or directly and fully guaranteed or
insured by the United States government or any agency or
instrumentality of the United States government (provided that the
full faith and credit of the United States is pledged in support of
those securities) having maturities of not more than six months from
the date of acquisition;
(3) certificates of deposit and eurodollar time deposits
with maturities of six months or less 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 $500.0 million and a
Thomson 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 one of the two highest ratings
obtainable from Xxxxx'x Investors Service, Inc. or Standard & Poor's
Rating Services and, in each case, maturing within six months 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.
"Change of Control" means the occurrence of any of the following:
(1) the direct or indirect 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 properties or assets of the Company (other than as
contemplated by the Reorganization) and its Restricted Subsidiaries
taken as a whole to any "person" (as that term is used in Section
13(d) of the Exchange Act) other than a Permitted Holder;
(2) the adoption of a plan relating to the liquidation or
dissolution of the Company (other than as contemplated by the
Reorganization);
(3) the consummation of any transaction (including, without
limitation, any merger or consolidation) the result of which is that
any "person" (as defined above) other than a Permitted Holder becomes
the Beneficial Owner, directly or indirectly, of more than 50% of the
Voting Stock of the Company, measured by voting power rather than
number of shares (provided that for the purposes of making any such
determination, any person 50% or more of whose Capital Stock is owned
by any other person shall be disregarded); or
(4) after an initial public offering of the Company or any
direct or indirect parent of the Company, the first day on which a
majority of the members of the Board of Directors of the Company are
not Continuing Directors.
"Clearstream" means Clearstream Banking, S.A.
"Collateral" shall have the meaning set forth in the Security
Agreement.
"Collateral Trust Agreement" shall mean that certain collateral trust
agreement dated as of the date hereof (as amended or otherwise modified from
time to time) by and among the Company, the Trustee, the other Secured Debt
4
Representatives (as defined therein) party thereto from time to time and the
Collateral Trustee.
"Collateral Trustee" shall mean The Bank of New York in its capacity
as collateral trustee under the Collateral Trust Agreement or any successor
Collateral Trustee.
"Consolidated Cash Flow" means, with respect to any specified Person
for any period, the Consolidated Net Income of such Person for such period plus,
without duplication:
(1) an amount equal to any extraordinary loss plus any net
loss realized by such Person or any of its Restricted Subsidiaries in
connection with an Asset Sale, to the extent such losses were
deducted in computing such Consolidated Net Income; plus
(2) provision for taxes based on income or profits of such
Person and its Restricted Subsidiaries for such period, to the extent
that such provision for taxes was deducted in computing such
Consolidated Net Income; plus
(3) the Consolidated Interest Expense of such Person and
its Restricted Subsidiaries for such period, to the extent that such
Consolidated Interest Expense was deducted in computing such
Consolidated Net Income; plus
(4) depreciation, amortization (including amortization of
intangibles but excluding amortization of prepaid cash expenses that
were paid in a prior period) and other non-cash expenses (excluding
any such non-cash expense to the extent that it represents an accrual
of or reserve for cash expenses in any future period or amortization
of a prepaid cash expense that was paid in a prior period), and
non-recurring expenses incurred in connection with the
Reorganization, of such Person and its Restricted Subsidiaries for
such period to the extent that such depreciation, amortization and
non-cash and non-recurring expenses were deducted in computing such
Consolidated Net Income; minus
(5) non-cash items increasing such Consolidated Net Income
for such period, other than the accrual of revenue in the ordinary
course of business, in each case, on a consolidated basis and
determined in accordance with GAAP.
Notwithstanding the preceding, the provision for taxes based on the
income or profits of, and the depreciation and amortization and other non-cash
expenses of, a Restricted Subsidiary of the Company will be added to
Consolidated Net Income to compute Consolidated Cash Flow of the Company only to
the extent that a corresponding amount would be permitted at the date of
determination to be dividended to the Company by such Restricted Subsidiary
without prior governmental approval (that has not been obtained), and without
direct or indirect restriction pursuant to the terms of its charter and all
agreements, instruments, judgments, decrees, orders, statutes, rules and
governmental regulations applicable to that Restricted Subsidiary or its
stockholders.
"Consolidated Indebtedness" means, with respect to any specified
Person as of any date of determination, the sum, without duplication, of:
(1) the total amount of Indebtedness of such Person and
its Restricted Subsidiaries: plus
(2) the total amount of Indebtedness of any other Person,
to the extent that such Indebtedness has been Guaranteed by the
referent Person or one or more of its Restricted Subsidiaries; plus
5
(3) the aggregate liquidation value of all Disqualified
Stock of such Person and any of its Restricted Subsidiaries that have
Guaranteed the Indebtedness of such Person and all preferred stock of
the Restricted Subsidiaries of such Person,
in each case, on a consolidated basis and determined in accordance with GAAP.
"Consolidated Interest Expense" means, with respect to any specified
Person for any period, the sum, without duplication, of:
(1) the consolidated interest expense of such Person and
its Restricted Subsidiaries for such period, whether paid or accrued,
including, without limitation, amortization of debt issuance costs
and original issue discount, non-cash interest payments, the interest
component of any deferred payment obligations, the interest component
of all payments associated with Capital Lease Obligations,
commissions, discounts and other fees and charges incurred in respect
of letter of credit or bankers' acceptance financings, and net of the
effect of all payments made or received pursuant to Hedging
Obligations in respect of interest rates; plus
(2) the consolidated interest expense of such Person and
its Restricted Subsidiaries that was capitalized during such period;
plus
(3) any interest expense on Indebtedness of another Person
that is Guaranteed by such Person or one of its Restricted
Subsidiaries or secured by a Lien on assets of such Person or one of
its Restricted Subsidiaries, whether or not such Guarantee or Lien is
called upon; plus
(4) the product of (a) all dividends, whether paid or
accrued and whether or not in cash, on any series of preferred stock
of such Person or any of its Restricted Subsidiaries, other than
dividends on Equity Interests payable solely in Equity Interests of
the Company (other than Disqualified Stock) or to the Company or a
Restricted Subsidiary of the Company, 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 and 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 Subsidiaries for such period, on a consolidated basis, determined in
accordance with GAAP; provided that:
(1) the Net Income (but not loss) of any Person that is
not a Restricted Subsidiary or that is accounted for by the equity
method of accounting will be included only to the extent of the
amount of dividends or similar distributions paid in cash to the
specified Person or a Restricted Subsidiary of the Person;
(2) the Net Income of any Restricted Subsidiary will 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;
(3) the cumulative effect of a change in accounting
principles will be excluded; and
6
(4) notwithstanding clause (1) above, the Net Income of
any Unrestricted Subsidiary will be excluded, whether or not
distributed to the specified Person or one of its Subsidiaries.
"Continuing Directors" means, as of any date of determination, any
member of the Board of Directors of the Company who:
(1) was a member of such Board of Directors on the date of
the Merger (after giving effect thereto); or
(2) was nominated for election or elected to such Board of
Directors with the approval of a majority of the Continuing Directors
who were members of such Board of Directors at the time of such
nomination or election.
"Corporate Trust Office of the Trustee" will be at the address of the
Trustee specified in Section 13.02 hereof or such other address as to which the
Trustee may give notice to the Company.
"Custodian" means the Trustee, as custodian with respect to the Notes
in global form, or any successor entity thereto.
"Debt to Cash Flow Ratio" means, with respect to any specified Person
as of any date of determination, the ratio of (a) the Consolidated Indebtedness
of such Person as of such date to (b) the Annualized Consolidated Cash Flow of
such Person determined on a pro forma basis after giving effect to all
acquisitions or dispositions of assets made by such Person and its Restricted
Subsidiaries from the beginning of such two-quarter period through and including
such date of determination (including any related financing transactions) as if
such acquisitions and dispositions (and related financing transactions) had
occurred at the beginning of such two-quarter period.
In addition, for purposes of calculating the Debt to Cash Flow Ratio:
(1) acquisitions that have been made by the specified Person or any
of its Restricted Subsidiaries, including through mergers or consolidations, or
any Person or any of its Restricted Subsidiaries acquired by the specified
Person or any of its Restricted Subsidiaries, and including any related
financing transactions and including increases in ownership of Restricted
Subsidiaries, during the two-quarter reference period or subsequent to such
reference period and on or prior to the date on which the event for which the
calculation of the Debt to Cash Flow Ratio is made (the "Calculation Date") will
be given pro forma effect (in accordance with Regulation S-X under the
Securities Act) as if they had occurred on the first day of the two-quarter
reference period and Consolidated Cash Flow for such reference period shall be
calculated without giving effect to clause (3) of the proviso set forth in the
definition of Consolidated Net Income;
(2) the Consolidated Cash Flow attributable to discontinued
operations, as determined in accordance with GAAP, and operations or businesses
(and ownership interests therein) disposed of prior to the Calculation Date,
will be excluded;
(3) the Consolidated Interest Expense attributable to discontinued
operations, as determined in accordance with GAAP, and operations or businesses
(and ownership interests therein) disposed of prior to the Calculation Date,
will be excluded, but only to the extent that the obligations giving rise to
such Consolidated Interest Expense will not be obligations of the specified
Person or any of its Restricted Subsidiaries following the Calculation Date;
7
(4) any Person that is a Restricted Subsidiary on the Calculation
Date will be deemed to have been a Restricted Subsidiary at all times during
such two-quarter period;
(5) any Person that is not a Restricted Subsidiary on the Calculation
Date will be deemed not to have been a Restricted Subsidiary at any time during
such two-quarter period; and
(6) if any Indebtedness bears a floating rate of interest, the
interest expense on such Indebtedness will be calculated as if the rate in
effect on the Calculation Date had been the applicable rate for the entire
period (taking into account any Hedging Obligation applicable to such
Indebtedness if such Hedging Obligation has a remaining term as at the
Calculation Date in excess of 12 months).
"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,
substantially in the form of Exhibit A1 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 hereunder and having become such pursuant to the
applicable provision of this Indenture.
"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 of the Capital Stock), 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 of the Capital Stock, 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 of the Capital Stock have the right to require the
Company to repurchase such Capital Stock upon the occurrence of a Change of
Control or an Asset Sale will 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 hereof. The amount of Disqualified Stock
deemed to be outstanding at any time for purposes of this Indenture will be the
maximum amount that the Company and its Restricted Subsidiaries may become
obligated to pay upon the maturity of, or pursuant to any mandatory redemption
provisions of, such Disqualified Stock, exclusive of accrued dividends.
"Domestic Restricted Subsidiary" means any Restricted Subsidiary of
the Company that was formed under the laws of the United States or any state of
the United States or the District of Columbia or that guarantees or otherwise
provides direct credit support for any Indebtedness of the Company.
"Equity Interests" means Capital Stock and all warrants, options or
other rights to acquire Capital Stock (but excluding any debt security that is
convertible into, or exchangeable for, Capital Stock).
"Escrow Agent" means the escrow agent under the Escrow Agreement.
"Escrow Agreement" means the Escrow and Security Agreement dated
January 3, 2005 and attached as Exhibit G hereto, as such agreement may be
amended, modified or supplemented from time to time.
8
"Escrow Property" has the meaning set forth in the Escrow Agreement.
"Euroclear" means Euroclear Bank, S.A./N.V., as operator of the
Euroclear system.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Exchange Notes" means the Notes issued in the Exchange Offer
pursuant to Section 2.06(f) 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 Indebtedness of the Company and its
Subsidiaries in existence on the date of this Indenture (after giving effect to
the application of the net proceeds of the issuance of the Notes and the Senior
Discount Notes originally issued on the date of this Indenture), until such
amounts are repaid.
"Fair Market Value" means the value that would be paid by a willing
buyer to an unaffiliated willing seller in a transaction not involving distress
or necessity of either party, determined in good faith by the Board of Directors
of the Company (unless otherwise provided in this Indenture).
"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 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 on the date of this Indenture.
"Global Note Legend" means the legend set forth in Section 2.06(g)(2)
hereof, 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 deposited with or on
behalf of and registered in the name of the Depository or its nominee,
substantially in the form of Exhibit A1 hereto and that bears the Global Note
Legend and that has the "Schedule of Exchanges of Interests in the Global Note"
attached thereto, issued in accordance with Section 2.01, 2.06(b)(3),
2.06(b)(4), 2.06(d)(2) or 2.06(f) hereof.
"Government Securities" means direct obligations of, or obligations
guaranteed by, the United States of America (including any agency or
instrumentality thereof) for the payment of which obligations or guarantees the
full faith and credit of the United States of America is pledged and which are
not callable or redeemable at the issuer's option.
"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, without limitation, 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 (whether arising by virtue of
partnership arrangements, or by agreements to keep-well, to purchase assets,
goods, securities or services, to take or pay or to maintain financial statement
conditions or otherwise).
9
"Guarantors" means each Subsidiary of the Company that executes a
Note Guarantee in accordance with the provisions of this Indenture, and their
respective successors and assigns, in each case, until the Note Guarantee of
such Person has been released in accordance with the provisions of this
Indenture.
"Hedging Obligations" means, with respect to any specified Person,
the obligations of such Person under:
(1) interest rate swap agreements (whether from fixed to
floating or from floating to fixed), interest rate cap agreements and
interest rate collar agreements;
(2) other agreements or arrangements designed to manage
interest rates or interest rate risk; and
(3) other agreements or arrangements designed to protect
such Person against fluctuations in currency exchange rates or
commodity prices.
"Holder" means a Person in whose name a Note is registered.
"IAI Global Note" means a Global Note substantially in the form of
Exhibit A1 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 will be issued in a denomination equal to the
outstanding principal amount of the Notes sold to Institutional Accredited
Investors.
"Immaterial Subsidiary" means, as of any date, any Restricted
Subsidiary whose total assets, as of that date, are less than $100,000 and whose
total revenues for the most recent 12-month period do not exceed $100,000;
provided that a Restricted Subsidiary will not be considered to be an Immaterial
Subsidiary if it, directly or indirectly, guarantees or otherwise provides
direct credit support for any Indebtedness of the Company.
"Indebtedness" means, with respect to any specified Person, any
indebtedness of such Person (excluding accrued expenses and trade payables),
whether or not contingent:
(1) in respect of borrowed money;
(2) evidenced by bonds, notes, debentures or similar
instruments or letters of credit (or reimbursement agreements in
respect thereof);
(3) in respect of banker's acceptances;
(4) representing Capital Lease Obligations;
(5) representing the balance deferred and unpaid of the
purchase price of any property or services due more than six months
after such property is acquired or such services are completed; or
(6) representing any Hedging Obligations, if and to the
extent any of the preceding items (other than letters of credit and
Hedging Obligations) would appear as a liability upon a balance sheet
of the specified Person prepared in accordance with GAAP. In
addition, the term "Indebtedness" includes all Indebtedness of others
secured by a Lien on any asset of the specified Person (whether or
not such Indebtedness is assumed by the specified Person) and, to the
extent not otherwise included, the Guarantee by the specified Person
of any Indebtedness of any other Person.
10
"Indenture" means this Indenture, as amended or supplemented from
time to time.
"Indirect Participant" means a Person who holds a beneficial interest
in a Global Note through a Participant.
"Initial Notes" means the first $150,000,000 aggregate principal
amount of Notes issued under this Indenture on the date hereof.
"Institutional Accredited Investor" means an institution that is an
"accredited investor" as defined in Rule 501(a)(1), (2), (3) or (7) under the
Securities Act, who are not also QIBs.
"Investments" means, with respect to any Person, all direct or
indirect investments by such Person in other Persons (including Affiliates) in
the forms of loans (including Guarantees 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
or any Restricted Subsidiary of the Company sells or otherwise disposes of any
Equity Interests of any direct or indirect Restricted Subsidiary of the Company
such that, after giving effect to any such sale or disposition, such Person is
no longer a Restricted Subsidiary of the Company, the Company will be deemed to
have made an Investment on the date of any such sale or disposition equal to the
Fair Market Value of the Company's Investments in such Restricted Subsidiary
that were not sold or disposed of in an amount determined as provided in the
final paragraph of the covenant in Section 4.07 hereof. The acquisition by the
Company or any Restricted Subsidiary of the Company of a Person that holds an
Investment in a third Person will be deemed to be an Investment by the Company
or such Restricted Subsidiary in such third Person in an amount equal to the
Fair Market Value of the Investments held by the acquired Person in such third
Person in an amount determined as provided in the final paragraph of the
covenant in section 4.07 hereof. Except as otherwise provided in this Indenture,
the amount of an Investment will be determined at the time the Investment is
made and without giving effect to subsequent changes in value.
"Legal Holiday" means a Saturday, a Sunday or a day on which banking
institutions in 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 (or equivalent statutes) of any jurisdiction.
"Liquidated Damages" means all liquidated damages then owing pursuant
to the Registration Rights Agreement.
11
"Net Income" means, with respect to any specified Person, the net
income (loss) of such Person, 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 or any of its 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
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 of the Asset Sale, taxes paid or
payable as a result of the Asset Sale, in each case, after taking into account
any available tax credits or deductions and any tax sharing arrangements,
amounts required to be applied to the repayment of Indebtedness secured by a
Lien on the asset or assets that were the subject of such Asset Sale, and any
reserve for adjustment in respect of the sale price of such asset or assets
established in accordance with GAAP.
"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 of the Indebtedness may have to take enforcement
action against an Unrestricted Subsidiary) would permit upon notice,
lapse of time or both any holder of any other Indebtedness of the
Company or any of its Restricted Subsidiaries to declare a default on
such other Indebtedness or cause the payment of the Indebtedness 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 the Guarantee by each Guarantor of the
Company's obligations under this Indenture and the Notes, executed pursuant to
the provisions of this Indenture.
"Notes" has the meaning assigned to it in the preamble to this
Indenture. The Initial Notes and the Additional Notes shall be treated as a
single class for all purposes under this Indenture, and unless the context
12
otherwise requires, all references to the Notes shall include the Initial Notes
and any Additional Notes.
"Obligations" means any principal, interest, penalties, fees,
indemnifications, reimbursements, damages and other liabilities payable under
the documentation governing any Indebtedness (including, without limitation,
interest accruing at the then applicable rate provided in such documentation
after the maturity of such Indebtedness and interest accruing at the then
applicable rate provided in such documentation after the filing of any petition
in bankruptcy, or the commencement of any insolvency, reorganization, or like
proceeding, relating to the Company or any Restricted Subsidiary, whether or not
a claim for post-filing or post-petition interest is allowed in such
proceeding).
"Officer" means, with respect to any Person, the Chairman of the
Board, the Chief Executive Officer, the President, the Chief Operating Officer,
the Chief Financial Officer, the Treasurer, any Assistant Treasurer, the
Controller, the Secretary or any Vice-President of such Person.
"Officers' Certificate" means a certificate signed on behalf of the
Company by two Officers of the Company, one of whom must be the principal
executive officer, the principal financial officer, the treasurer or the
principal accounting officer of the Company, that meets the requirements of
Section 13.05 hereof.
"Opinion of Counsel" means an opinion from legal counsel who is
reasonably acceptable to the Trustee that meets the requirements of Section
13.05 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
Clearstream, a Person who has an account with the Depositary, Euroclear or
Clearstream, respectively (and, with respect to DTC, shall include Euroclear and
Clearstream).
"Permitted Business" means the lines of business conducted by the
Company and its Restricted Subsidiaries on the date of this Indenture and any
businesses similar, related, incidental or ancillary thereto or that constitutes
a reasonable extension or expansion thereof.
"Permitted Holder" means:
(1) any Beneficial Owner of more than 5% of the Company's
Equity Interests immediately following the Reorganization;
(2) any Affiliate or immediate family member (in the case
of an individual) of any Person referred to in clause (1);
(3) any trust, corporation, partnership or other entity,
the beneficiaries, stockholders, partners, owners or Persons
Beneficially Owning an 80% or more controlling interest of which
consist of any one or more Persons referred to in clause (1) or (2);
or
(4) Sprint Corporation, any Sprint PCS Affiliate, and any
Affiliate of Sprint Corporation or any Sprint PCS Affiliate.
"Permitted Investments" means:
(1) any Investment in the Company or in a Restricted
Subsidiary of the Company;
13
(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 such
Investment:
(a) such Person becomes a Restricted Subsidiary
of the Company; or
(b) such Person is merged, consolidated or
amalgamated with or into, or transfers or
conveys all or substantially all of its
assets to, or is liquidated into, the
Company or a Restricted Subsidiary of the
Company;
(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 the covenant described in Section 4.10
(5) any acquisition of assets or Capital Stock solely in
exchange for the issuance of Equity Interests (other than
Disqualified Stock) of the Company;
(6) any Investments received in compromise or resolution
of (A) obligations of trade creditors or customers that were incurred
in the ordinary course of business of the Company or any of its
Restricted Subsidiaries, including pursuant to any plan of
reorganization or similar arrangement upon the bankruptcy or
insolvency of any trade creditor or customer; or (B) litigation,
arbitration or other disputes;
(7) Investments represented by Hedging Obligations;
(8) loans or advances to employees made in the ordinary
course of business of the Company or any Restricted Subsidiary of the
Company in an aggregate principal amount not to exceed $2.0 million
at any one time outstanding; and
(9) Investments in prepaid expenses, negotiable
instruments held for collection, and lease, utility and workers
compensation, performance and other similar deposits.
"Permitted Liens" means
(1) Liens securing Indebtedness and other Obligations that
were incurred pursuant to clause (13) of the definition of Permitted
Debt or securing Hedging Obligations related thereto; provided
however, that all payments due under this Indenture and the Notes
shall be secured on an equal and ratable basis with the obligations
so secured until such time as such obligations are no longer secured
by a Lien;
(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 Subsidiary of the Company; 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 Subsidiary;
(4) Liens on property (including Capital Stock) existing
at the time of acquisition of the property by the Company or any
Subsidiary of the Company; provided that such Liens were in existence
prior to, such acquisition, and not incurred in contemplation of,
such acquisition;
14
(5) Liens 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 Indebtedness (including Capital Lease
Obligations) permitted by Section 4.09(b)(4) hereof covering only the
assets acquired with or financed by such Indebtedness;
(7) Liens existing on the date of this Indenture;
(8) 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 is required in conformity with GAAP has been made
therefor;
(9) Xxxxx imposed by law, such as carriers',
warehousemen's, landlord's and mechanics' Liens, in each case,
incurred in the ordinary course of business;
(10) survey exceptions, easements or reservations of, or
rights of others for, licenses, rights-of-way, sewers, electric
lines, telegraph and telephone lines and other similar purposes, or
zoning or other restrictions as to the use of real property that were
not incurred in connection with Indebtedness and that do not in the
aggregate materially adversely affect the value of said properties or
materially impair their use in the operation of the business of such
Person;
(11) Liens created for the benefit of (or to secure) the
Notes, the Exchange Notes or the Note Guarantees or securing Hedging
Obligations related thereto;
(12) Liens to secure any Permitted Refinancing
Indebtedness permitted to be incurred under this Indenture; provided,
however, that:
(a) the new Lien shall be limited to all or part
of the same property and assets that secured or, under the written
agreements pursuant to which the original Lien arose, could secure the original
Lien (plus improvements and accessions to, such property or proceeds or
distributions thereof); and
(b) the Indebtedness secured by the new Lien is
not increased to any amount greater than the sum of (x) the outstanding
principal amount, or, if greater, committed amount, of the Permitted Refinancing
Indebtedness and (y) an amount necessary to pay any fees and expenses, including
premiums, related to such renewal, refunding, refinancing, replacement,
defeasance or discharge;
(13) Liens, other than Liens securing Indebtedness for
money borrowed, that may arise under the Company's management and
services agreements with Sprint Spectrum L.P. and its Affiliates;
(14) Liens arising from leases, subleases, licenses or
other similar rights that do not interfere with the ordinary course
of the business of the Company and its Restricted Subsidiaries;
(15) Liens securing reimbursement obligations with respect
to letters of credit that encumber documents and other property
relating to such letters of credit;
(16) Liens existing under the Escrow Agreement; and
(17) Liens incurred in the ordinary course of business of
the Company or any Subsidiary of the Company with respect to
obligations that do not exceed $5.0 million at any one time
outstanding.
15
"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 renew, refund, refinance, replace, defease or
discharge 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 (or accreted value, if applicable) of the
Indebtedness renewed, refunded, refinanced, replaced, defeased or
discharged (plus all accrued interest on the Indebtedness and the
amount of all fees and expenses, including premiums, 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 renewed,
refunded, refinanced, replaced, defeased or discharged;
(3) if the Indebtedness being renewed, refunded,
refinanced, replaced, defeased or discharged 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 renewed, refunded,
refinanced, replaced, defeased or discharged; and
(4) such Indebtedness is incurred either by the Company or
by the Restricted Subsidiary who is the obligor on the Indebtedness
being renewed, refunded, refinanced, replaced, defeased or
discharged.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization,
limited liability company or government or other entity.
"Private Placement Legend" means the legend set forth in Section
2.06(g)(1) hereof to be placed on all Notes issued under this Indenture except
where otherwise permitted by the provisions of this Indenture.
"QIB" means a "qualified institutional buyer" as defined in Rule
144A.
"Registration Rights Agreement" means the Registration Rights
Agreement, dated as of January 6, 2005, between the Company and the other
parties named on the signature pages thereto, as such agreement may be amended,
modified or supplemented from time to time and, with respect to any Additional
Notes, one or more registration rights agreements by and among the Company and
the other parties thereto, as such agreement(s) may be amended, modified or
supplemented from time to time, relating to rights given by the Company to the
purchasers of Additional Notes to register such Additional Notes under the
Securities Act.
"Regulation S" means Regulation S promulgated under the Securities
Act.
"Regulation S Global Note" means a Regulation S Temporary Global Note
or Regulation S Permanent Global Note, as appropriate.
"Regulation S Permanent Global Note" means a permanent Global Note in
the form of Exhibit A1 hereto bearing the Global Note Legend and the Private
Placement Legend and deposited with or on behalf of and registered in the name
16
of the Depositary or its nominee, issued in a denomination equal to the
outstanding principal amount of the Regulation S Temporary Global Note upon
expiration of the Restricted Period.
"Regulation S Temporary Global Note" means a temporary Global Note in
the form of Exhibit A2 hereto deposited with or on behalf of and registered in
the name of the Depositary or its nominee, issued in a denomination equal to the
outstanding principal amount of the Notes initially sold in reliance on Rule 903
of Regulation S.
"Reorganization" means the substantial consummation of the Chapter 11
bankruptcy plan in the proceeding commenced by IWO Holdings, Inc. in the United
States Bankruptcy Court for the District of Delaware for the purpose of
effecting a court-administered reorganization of IWO Holdings, Inc.
"Responsible Officer," when used with respect to the Trustee, means
any officer within the Corporate Trust Administration 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 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 an Investment other than a Permitted
Investment.
"Restricted Period" means the 40-day distribution compliance period
as defined in Regulation S.
"Restricted Subsidiary" of a Person means any Subsidiary of the
referent Person 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 under the Securities Act.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended.
"Security Agreement" means the Pledge and Security Agreement dated as
of the date of this Indenture and substantially in the form attached as Exhibit
H hereto, as such agreement may be amended, modified or supplemented from time
to time.
"Security Documents" means the Collateral Trust Agreement, all
security agreements, pledge agreements, control agreements, collateral
assignments, mortgages, deed of trust or other grants or transfers for security
or agreements related thereto executed and delivered by IWO Escrow, IWO Holdings
or any Guarantor creating (or purporting to create) or perfecting a Lien upon
Collateral in favor of the Collateral Trustee to secure Parity Secured
Obligations, in each case, as amended, modified, renewed, restated or replaced,
in whole or in part, from time to time.
17
"Senior Discount Notes" means the 10.75% Senior Discount Notes due
2015 issued by the Company pursuant to an indenture, dated the date hereof,
between the Company and U.S. Bank National Association, as trustee.
"Shelf Registration Statement" means the Shelf Registration Statement
as defined in the Registration Rights Agreement.
"Significant Subsidiary" means any 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 PCS Affiliate" means an entity whose sole or predominant
business is operating (directly or through one or more subsidiaries) a personal
communications service business pursuant to affiliation agreements with Sprint
Spectrum, L.P. and/or its affiliates or their successors.
"Stated Maturity" means, with respect to any installment of interest
or principal on any series of Indebtedness, the date on which the payment of
interest or principal was scheduled to be paid in the documentation governing
such Indebtedness as of the date of this Indenture, and will 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 any specified Person:
(1) 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
and after giving effect to any voting agreement or stockholders'
agreement that effectively transfers voting power) to vote in the
election of directors, managers or trustees of the corporation,
association or other business entity is at the time owned or
controlled, directly or indirectly, by that Person or one or more of
the other Subsidiaries of that Person (or a combination thereof); and
(2) any partnership (a) the sole general partner or the
managing general partner of which is such Person or a Subsidiary of
such Person or (b) the only general partners of which are that Person
or one or more Subsidiaries of that Person (or any combination
thereof).
"TIA" means the Trust Indenture Act of 1939, as amended (15 U.S.C.
xx.xx. 77aaa-77bbbb).
"Trustee" means U.S. Bank National Association until a successor
replaces it in accordance with the applicable provisions of this Indenture and
thereafter means the successor serving hereunder.
"Unrestricted Definitive Note" means a Definitive Note that does not
bear and is not required to bear the Private Placement Legend.
"Unrestricted Global Note" means a Global Note that does not bear and
is not required to bear the Private Placement Legend.
"Unrestricted Subsidiary" means any Subsidiary of the Company that is
designated by the Board of Directors of the Company as an Unrestricted
Subsidiary pursuant to a resolution of the Board of Directors, but only to the
extent that such Subsidiary:
(1) has no Indebtedness other than Non-Recourse Debt;
18
(2) except as permitted by the covenant described under
Section 4.11 hereof 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; and
(4) has not guaranteed or otherwise directly or indirectly
provided credit support for any Indebtedness of the Company or any of
its Restricted Subsidiaries.
"U.S. Person" means a U.S. Person as defined in Rule 902(k)
promulgated under the Securities Act.
"Voting Stock" of any specified 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 of such Person.
"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 of the Indebtedness, 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.
Section 1.02 Other Definitions.
Defined in
Term Section
---- -------
"Affiliate Transaction".............................. 4.11
"Asset Sale Offer"................................... 3.09
"Authentication Order"............................... 2.02
"Change of Control Offer"............................ 4.15
"Change of Control Payment".......................... 4.15
"Change of Control Payment Date"..................... 4.15
"Company"............................................ Preamble
"Covenant Defeasance"................................ 8.03
"DTC"................................................ 2.03
"Event of Default"................................... 6.01
"Excess Proceeds".................................... 4.10
"incur".............................................. 4.09
"Legal Defeasance"................................... 8.02
"Merger"............................................. Preamble
19
Defined in
Term Section
---- -------
"Offer Amount"....................................... 3.09
"Offer Period"....................................... 3.09
"Paying Agent"....................................... 2.03
"Permitted Debt"..................................... 4.09
"Payment Default" ................................... 6.01
"Purchase Date"...................................... 3.09
"Registrar".......................................... 2.03
"Restricted Payments"................................ 4.07
"Special Mandatory Redemption Date" ................. 3.08
Section 1.03 Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the
provision is incorporated by reference in and made a part of this Indenture.
The following TIA terms used in this Indenture have the following
meanings:
"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 and the Note Guarantees means the Company and
the Guarantors, respectively, and any successor obligor upon the Notes and the
Note Guarantees, respectively.
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.
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) "will" shall be interpreted to express a command;
(6) provisions apply to successive events and
transactions; and
20
(7) references to sections of or rules under the
Securities Act will be deemed to include substitute, replacement of
successor sections or rules adopted by the SEC from time to time.
ARTICLE 2
THE NOTES
Section 2.01 Form and Dating.
(a) General. The Notes and the Trustee's certificate of
authentication will be substantially in the form of Exhibits A1 and A2 hereto.
The Notes may have notations, legends or endorsements required by law, stock
exchange rule or usage. Each Note will 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 will 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) Global Notes. Notes issued in global form will be substantially
in the form of Exhibits A1 or A2 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 will be substantially in the form of
Exhibit A1 hereto (but without the Global Note Legend thereon and without the
"Schedule of Exchanges of Interests in the Global Note" attached thereto) and
shall be held by the Trustee as custodian for the Depositary and registered in
the name of the Depositary or the nominee of the Depositary. Each Global Note
will represent such of the outstanding Notes as will be specified therein and
each shall provide that it represents 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 will be made by the Trustee or the Custodian, at the direction of the
Trustee, in accordance with instructions given by the Holder thereof as required
by Section 2.06 hereof.
(c) Temporary Global Notes. Notes offered and sold in reliance on
Regulation S will be issued initially in the form of the Regulation S Temporary
Global Note, which will be deposited on behalf of the purchasers of the Notes
represented thereby with the Trustee, as custodian for the Depositary, and
registered in the name of the Depositary or the nominee of the Depositary for
the accounts of designated agents holding on behalf of Euroclear or Clearstream,
duly executed by the Company and authenticated by the Trustee as hereinafter
provided. The Restricted Period will be terminated upon the receipt by the
Trustee of:
(1) a written certificate from the Depositary, together
with copies of certificates from Euroclear and Clearstream certifying
that they have received certification of non-United States beneficial
ownership of 100% of the aggregate principal amount of the Regulation
S Temporary Global Note (except to the extent of any beneficial
owners thereof who acquired an interest therein during the Restricted
Period pursuant to another exemption from registration under the
Securities Act and who will take delivery of a beneficial ownership
interest in a 144A Global Note or an IAI Global Note bearing a
Private Placement Legend, all as contemplated by Section 2.06(b)
hereof); and
21
(2) an Officer's Certificate from the Company.
Following the termination of the Restricted Period, beneficial
interests in the Regulation S Temporary Global Note will be exchanged for
beneficial interests in the Regulation S Permanent Global Note pursuant to the
Applicable Procedures. Simultaneously with the authentication of the Regulation
S Permanent Global Note, the Trustee will cancel the Regulation S Temporary
Global Note. The aggregate principal amount of the Regulation S Temporary Global
Note and the Regulation S Permanent Global Note may from time to time be
increased or decreased by adjustments made on the records of the Trustee and the
Depositary or its nominee, as the case may be, in connection with transfers of
interest as hereinafter provided.
Euroclear and Clearstream 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 Clearstream
Banking" and "Customer Handbook" of Clearstream will be applicable to transfers
of beneficial interests in the Regulation S Temporary Global Note and the
Regulation S Permanent Global Note that are held by Participants through
Euroclear or Clearstream.
Section 2.02 Execution and Authentication.
At least one Officer must sign the Notes for the Company by manual or
facsimile signature.
If an Officer whose signature is on a Note no longer holds that
office at the time a Note is authenticated, the Note will nevertheless be valid.
A Note will not be valid until authenticated by the manual signature
of the Trustee. The signature will be conclusive evidence that the Note has been
authenticated under this Indenture.
The Trustee will, upon receipt of a written order of the Company
signed by an Officer (an "Authentication Order"), authenticate Notes for
original issue that may be validly issued under this Indenture, including any
Additional Notes. The Authentication Order shall include the name in which the
Notes shall be registered and the principal amount of each Note that is to be
delivered. The aggregate principal amount of Notes outstanding at any time may
not exceed the aggregate principal amount of Notes authorized for issuance by
the Company pursuant to one or more Authentication Orders, except as provided in
Section 2.07 hereof.
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.
The Company will 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 ("Paying Agent"). The
Registrar will 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 will 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.
22
The Company initially appoints The Depository Trust Company ("DTC")
to act as Depositary with respect to the Global Notes.
The Company initially appoints the Trustee to act as the Registrar
and Paying Agent and to act as Custodian with respect to the Global Notes.
Section 2.04 Paying Agent to Hold Money in Trust.
The Company will require each Paying Agent other than the Trustee to
agree in writing that the Paying Agent will 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
will 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) will have no further liability for the money. If the Company or a
Subsidiary acts as Paying Agent, it will 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 will serve as Paying Agent for the Notes.
Section 2.05 Holder Lists.
The Trustee will 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 and shall otherwise comply with TIA ss. 312(a). If the Trustee is
not the Registrar, the Company will 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 as the
Trustee may reasonably require of the names and addresses of the Holders of
Notes and the Company shall otherwise comply with TIA ss. 312(a).
Section 2.06 Transfer and Exchange.
(a) Transfer and Exchange of Global Notes. A Global Note may not be
transferred except as a whole 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 will be exchanged by
the Company for Definitive Notes if:
(1) 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 120 days after the date of such
notice from the Depositary;
(2) 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; provided that in no event shall the Regulation S Temporary
Global Note be exchanged by the Company for Definitive Notes prior to
(A) the expiration of the Restricted Period and (B) the receipt by
the Registrar of any certificates required pursuant to Rule
903(b)(3)(ii)(B) under the Securities Act; or
(3) there has occurred and is continuing a Default or
Event of Default with respect to the Notes.
23
Upon the occurrence of either of the preceding events in (1) or (2)
above, Definitive Notes shall be issued in exchange for outstanding Global Notes
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. Except as provided in the first sentence of this paragraph,
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), however, beneficial interests in a Global Note
may be transferred and exchanged as provided in Section 2.06(b), (c) or (f)
hereof.
(b) Transfer and Exchange of Beneficial Interests in the Global
Notes. The transfer and exchange of beneficial interests in the Global Notes
will be effected through the Depositary, in accordance with the provisions of
this Indenture and the Applicable Procedures. Beneficial interests in the
Restricted Global Notes will 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 will require
compliance with either subparagraph (1) or (2) below, as applicable, as well as
one or more of the other following subparagraphs, as applicable:
(1) 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 Temporary Global Note may not be made to a U.S. Person
or for the account or benefit of a U.S. Person (other than an Initial
Purchaser). 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)(1).
(2) 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)(1) above, the transferor of such beneficial interest must
deliver to the Registrar either:
(A) both:
(i) 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
(ii) instructions given in accordance with the
Applicable Procedures containing information regarding the
Participant account to be credited with such increase; or
(B) both:
(i) 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
24
(ii) 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;
provided that in no event shall Definitive Notes be issued
upon the transfer or exchange of beneficial interests in
the Regulation S Temporary Global Note prior to (A) the
expiration of the Restricted Period and (B) the receipt by
the Registrar of any certificates required pursuant to
Rule 903 under the Securities Act.
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)(2) 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 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.
(3) 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)(2) above
and the Registrar receives the following:
(A) if the transferee will 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;
(B) if the transferee will take delivery in the
form of a beneficial interest in the Regulation S
Temporary Global Note or the Regulation S Permanent 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 will 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,
certificates and Opinion of Counsel required by item (3)
thereof, if applicable.
(4) Transfer and Exchange of Beneficial Interests in a
Restricted Global Note for Beneficial Interests in an 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)(2) above and:
(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 (i) a Broker-Dealer, (ii) a Person participating in
the distribution of the Exchange Notes or (iii) a Person
who is an affiliate (as defined in Rule 144) of the
Company;
25
(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
Broker-Dealer pursuant to the Exchange Offer Registration
Statement in accordance with the Registration Rights
Agreement; or
(D) the Registrar receives the following:
(i) 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
(ii) 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;
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.
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.
(1) Beneficial Interests in Restricted Global Notes to
Restricted Definitive Notes. If any holder of a beneficial interest
in a Restricted Global Note proposes to exchange such beneficial
interest for a Restricted Definitive Note or to transfer such
beneficial interest to a Person who takes delivery thereof in the
form of a Restricted Definitive Note, then, upon receipt by the
Registrar of the following documentation:
(A) if the holder of such beneficial interest
in a Restricted Global Note proposes to exchange such
beneficial interest for a Restricted Definitive Note, a
certificate from such holder in the form of Exhibit C
hereto, including the certifications in item (2)(a)
thereof;
(B) if such beneficial interest is being
transferred to a QIB in accordance with Rule 144A, a
certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (1) thereof;
26
(C) if such beneficial interest is being
transferred to a Non-U.S. Person in an offshore
transaction in accordance with Rule 903 or Rule 904, a
certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (2) thereof;
(D) if such beneficial interest is being
transferred pursuant to an exemption from the registration
requirements of the Securities Act in accordance with Rule
144, a certificate to the effect set forth in Exhibit B
hereto, including the certifications in item (3)(a)
thereof;
(E) if such beneficial interest is being
transferred in reliance on an exemption from the
registration requirements of the Securities Act other than
those listed in subparagraphs (B) through (D) above,
including to an Institutional Accredited Investor, 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 beneficial interest 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
(G) if such beneficial interest 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 cause the aggregate principal amount of the applicable Global
Note to be reduced accordingly pursuant to Section 2.06(h) 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 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)(1) shall bear the Private Placement Legend and shall be
subject to all restrictions on transfer contained therein.
(2) Beneficial Interests in Regulation S Temporary Global
Note to Definitive Notes. Notwithstanding Sections 2.06(c)(1)(A) and
(C) hereof, a beneficial interest in the Regulation S Temporary
Global Note may not be exchanged for a Definitive Note or transferred
to a Person who takes delivery thereof in the form of a Definitive
Note prior to (A) the expiration of the Restricted Period and (B) the
receipt by the Registrar of any certificates required pursuant to
Rule 903(b)(3)(ii)(B) under the Securities Act, except in the case of
a transfer pursuant to an exemption from the registration
requirements of the Securities Act other than Rule 903 or Rule 904.
(3) 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
27
transferee, in the case of a transfer, certifies in the
applicable Letter of Transmittal that it is not (i) a
Broker-Dealer, (ii) a Person participating in the
distribution of the Exchange Notes or (iii) 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
Broker-Dealer pursuant to the Exchange Offer Registration
Statement in accordance with the Registration Rights
Agreement; or
(D) the Registrar receives the following:
(i) if the holder of such beneficial
interest in a Restricted Global Note proposes
to exchange such beneficial interest for an
Unrestricted Definitive Note, a certificate
from such holder in the form of Exhibit C
hereto, including the certifications in item
(1)(b) thereof; or
(ii) 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 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 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.
(4) Beneficial Interests in Unrestricted Global Notes to
Unrestricted Definitive Notes. If any holder of a beneficial interest
in an Unrestricted Global Note proposes to exchange such beneficial
interest for a Definitive Note or to transfer such beneficial
interest to a Person who takes delivery thereof in the form of a
Definitive Note, then, upon satisfaction of the conditions set forth
in Section 2.06(b)(2) hereof, the Trustee will cause the aggregate
principal amount of the applicable Global Note to be reduced
accordingly pursuant to Section 2.06(h) hereof, and the Company will
execute and the Trustee will 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)(4) will be
registered in such name or names and in such authorized denomination
or denominations as the holder of such beneficial interest requests
through instructions to the Registrar from or through the Depositary
and the Participant or Indirect Participant. The Trustee will 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)(4) will not bear the
Private Placement Legend.
(d) Transfer and Exchange of Definitive Notes for Beneficial
Interests.
(1) 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
28
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, 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, 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, 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, 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
(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 will 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.
(2) 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 (i) a Broker-Dealer, (ii) a
Person participating in the distribution of the Exchange
29
Notes or (iii) 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
Broker-Dealer pursuant to the Exchange Offer Registration
Statement in accordance with the Registration Rights
Agreement; or
(D) the Registrar receives the following:
(i) 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
(ii) 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)(2), the Trustee will cancel the
Definitive Notes and increase or cause to be increased the aggregate
principal amount of the Unrestricted Global Note.
(3) 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 will cancel
the applicable Unrestricted Definitive Note and increase or cause to
be increased the aggregate principal amount of one of the
Unrestricted Global Notes.
If any such exchange or transfer from a Definitive Note to
a beneficial interest is effected pursuant to subparagraphs (2)(B),
(2)(D) or (3) above at a time when an Unrestricted Global Note has
not yet been issued, the Company will issue and, upon receipt of an
Authentication Order in accordance with Section 2.02 hereof, the
Trustee will 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 will register the transfer
or exchange of Definitive Notes. Prior to such registration of transfer or
exchange, the requesting Holder must present or surrender to the Registrar the
Definitive Notes duly endorsed or accompanied by a written instruction of
30
transfer in form satisfactory to the Registrar duly executed by such Holder or
by its attorney, duly authorized in writing. In addition, the requesting Holder
must provide any additional certifications, documents and information, as
applicable, required pursuant to the following provisions of this Section
2.06(e).
(1) 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 will be made pursuant to
Rule 144A, then the transferor must deliver a certificate
in the form of Exhibit B hereto, including the
certifications in item (1) thereof;
(B) if the transfer will 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 will be made pursuant to
any other exemption from the registration requirements of
the Securities Act, then the transferor must deliver a
certificate in the form of Exhibit B hereto, including the
certifications, certificates and Opinion of Counsel
required by item (3) thereof, if applicable.
(2) 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 (i) a Broker-Dealer, (ii) a
Person participating in the distribution of the Exchange
Notes or (iii) 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
Broker-Dealer pursuant to the Exchange Offer Registration
Statement in accordance with the Registration Rights
Agreement; or
(D) the Registrar receives the following:
(i) 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
(ii) 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;
31
and, in each such case set forth in this subparagraph (D),
if the Registrar so requests, 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.
(3) 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 will issue and,
upon receipt of an Authentication Order in accordance with Section 2.02 hereof,
the Trustee will authenticate:
(1) 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 accepted for exchange in the
Exchange Offer by Persons that certify in the applicable Letters of
Transmittal that (A) they are not Broker-Dealers, (B) they are not
participating in a distribution of the Exchange Notes and (C) they
are not affiliates (as defined in Rule 144) of the Company; and
(2) Unrestricted Definitive Notes in an aggregate
principal amount equal to the principal amount of the Restricted
Definitive Notes accepted for exchange in the Exchange Offer by
Persons that certify in the applicable Letters of Transmittal that
(A) they are not Broker-Dealers, (B) they are not participating in a
distribution of the Exchange Notes and (C) they are not affiliates
(as defined in Rule 144) of the Company.
Concurrently with the issuance of such Notes, the Trustee will cause
the aggregate principal amount of the applicable Restricted Global Notes to be
reduced accordingly, and the Company will execute and the Trustee will
authenticate and deliver to the Persons designated by the Holders of Definitive
Notes so accepted Unrestricted Definitive Notes in the appropriate principal
amount.
(g) Legends. The following legends will 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.
(1) 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:
"THE SECURITY (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A
TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND THE SECURITY
EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE
ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH
PURCHASER OF THE SECURITY EVIDENCED HEREBY IS HEREBY NOTIFIED THAT THE SELLER
MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE
SECURITIES ACT PROVIDED BY RULE 144A. THE HOLDER OF THE SECURITY EVIDENCED
32
HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT (A) SUCH SECURITY MAY BE
OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY (1) (a) IN THE UNITED
STATES TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (b) OUTSIDE THE UNITED STATES
IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 904 UNDER THE SECURITIES ACT,
(c) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144 UNDER THE SECURITIES
ACT OR (d) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT (AND BASED UPON AN OPINION OF COUNSEL IF THE
ISSUER SO REQUESTS), (2) TO THE ISSUER OR (3) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE
SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE
JURISDICTION AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO,
NOTIFY ANY PURCHASER FROM IT OF THE SECURITY EVIDENCED HEREBY OF THE RESALE
RESTRICTIONS SET FORTH IN (A) ABOVE."
(B) Notwithstanding the foregoing, any Global
Note or Definitive Note issued pursuant to subparagraphs
(b)(4), (c)(3), (c)(4), (d)(2), (d)(3), (e)(2), (e)(3) or
(f) of this Section 2.06 (and all Notes issued in exchange
therefor or substitution thereof) will not bear the
Private Placement Legend.
(2) Global Note Legend. Each Global Note will 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 (1) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED
PURSUANT TO SECTION 2.06 OF THE INDENTURE, (2) THIS GLOBAL NOTE MAY BE EXCHANGED
IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(a) OF THE INDENTURE, (3) THIS
GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION
2.11 OF THE INDENTURE AND (4) 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 (00 XXXXX XXXXXX, XXX XXXX, XXX XXXX) ("DTC"), TO THE COMPANY OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS MAY BE
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN."
33
(3) Regulation S Temporary Global Note Legend. The
Regulation S Temporary Global Note will bear a Legend in
substantially the following form:
"THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL NOTE, AND THE
CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR CERTIFICATED NOTES, ARE AS
SPECIFIED IN THE INDENTURE (AS DEFINED HEREIN). NEITHER THE HOLDER NOR THE
BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY GLOBAL NOTE SHALL BE ENTITLED
TO RECEIVE PAYMENT OF INTEREST HEREON."
(h) Cancellation and/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
canceled in whole and not in part, each such Global Note will be returned to or
retained and canceled by the Trustee in accordance with Section 2.11 hereof. At
any time prior to such cancellation, if any beneficial interest in a Global Note
is exchanged for or transferred to a Person who will 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 will be
reduced accordingly and an endorsement will 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 will take delivery thereof in the form of a beneficial interest
in another Global Note, such other Global Note will be increased accordingly and
an endorsement will 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.
(1) To permit registrations of transfers and exchanges,
the Company will execute and the Trustee will authenticate Global
Notes and Definitive Notes upon receipt of an Authentication Order in
accordance with Section 2.02 hereof or at the Registrar's request.
(2) No service charge will 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 to the Company pursuant to Sections 2.10,
3.06, 3.09, 4.10, 4.15 and 9.05 hereof).
(3) The Registrar will not be required to register the
transfer of or exchange of any Note selected for redemption in whole
or in part, except the unredeemed portion of any Note being redeemed
in part.
(4) All Global Notes and Definitive Notes issued upon any
registration of transfer or exchange of Global Notes or Definitive
Notes will 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.
(5) Neither the Registrar nor the Company will 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;
34
(B) to register the transfer of or to exchange
any Note 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.
(6) 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.
(7) The Trustee will authenticate Global Notes and
Definitive Notes in accordance with the provisions of Section 2.02
hereof.
(8) 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.
Section 2.07 Replacement Notes.
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 will issue and the Trustee, upon receipt of an
Authentication Order, will 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.
Every replacement Note is an additional obligation of the Company and
will 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.
The Notes outstanding at any time are all the Notes authenticated by
the Trustee except for those canceled 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(a) hereof.
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 protected 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.
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 will be deemed to be no longer outstanding and will cease to accrue
interest.
35
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 any Guarantor, or by any Person directly or indirectly controlling or
controlled by or under direct or indirect common control with the Company or any
Guarantor, will be considered as though not outstanding, except that for the
purposes of determining whether the Trustee will be protected in relying on any
such direction, waiver or consent, only Notes that the Trustee knows are so
owned will be so disregarded.
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,
will authenticate temporary Notes. Temporary Notes will be substantially in the
form of certificated Notes but may have variations that the Company considers
appropriate for temporary Notes and as may be reasonably acceptable to the
Trustee. Without unreasonable delay, the Company will prepare and the Trustee
will authenticate definitive Notes in exchange for temporary Notes.
Holders of temporary Notes will 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 will forward to the Trustee any
Notes surrendered to them for registration of transfer, exchange or payment. The
Trustee and no one else will cancel all Notes surrendered for registration of
transfer, exchange, payment, replacement or cancellation and will destroy
canceled Notes (subject to the record retention requirement of the Exchange
Act). Certification of the destruction of all canceled Notes will 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
will 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 will 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 will fix or cause to be fixed each such
special record date and payment date; provided that no such special record date
may be less than 10 days prior to the related payment date for such defaulted
interest. At least 15 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) will 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.
ARTICLE 3
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 must furnish to the Trustee, at
least 30 days but not more than 60 days before a redemption date, an Officers'
Certificate setting forth:
36
(1) the clause of this Indenture pursuant to which the
redemption shall occur;
(2) the redemption date;
(3) the principal amount of Notes to be redeemed; and
(4) the redemption price.
Section 3.02 Selection of Notes to Be Redeemed or Purchased.
If less than all of the Notes are to be redeemed or purchased in an
offer to purchase at any time, the Trustee will select Notes for redemption or
purchase on a pro rata basis except:
(1) if the Notes are listed on any national securities
exchange, then in compliance with the requirements of the principal
national securities exchange on which the Notes are listed; or
(2) as otherwise required by law.
In the event of partial redemption or purchase by lot, the particular
Notes to be redeemed or purchased will be selected, unless otherwise provided
herein, not less than 30 nor more than 60 days prior to the redemption or
purchase date by the Trustee from the outstanding Notes not previously called
for redemption or purchase.
The Trustee will promptly notify the Company in writing of the Notes
selected for redemption or purchase and, in the case of any Note selected for
partial redemption or purchase, the principal amount thereof to be redeemed or
purchased. Notes and portions of Notes selected will be 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 or purchased, the entire outstanding amount of Notes held by such
Holder, even if not a multiple of $1,000, shall be redeemed or purchased. Except
as provided in the preceding sentence, provisions of this Indenture that apply
to Notes called for redemption or purchase also apply to portions of Notes
called for redemption or purchase.
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 will 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, except that redemption
notices may be mailed more than 60 days prior to a redemption date if the notice
is issued in connection with a defeasance of the Notes or a satisfaction and
discharge of this Indenture pursuant to Articles 8 or 12 hereof.
The notice will identify the Notes to be redeemed and will state:
(1) the redemption date;
(2) the redemption price;
(3) 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 will be issued upon
cancellation of the original Note;
37
(4) the name and address of the Paying Agent;
(5) that Notes called for redemption must be surrendered
to the Paying Agent to collect the redemption price;
(6) 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;
(7) the paragraph of the Notes and/or Section of this
Indenture pursuant to which the Notes called for redemption are being
redeemed; and
(8) 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.
At the Company's request, the Trustee will give the notice of
redemption in the Company's name and at its expense; provided, however, that the
Company has delivered to the Trustee, at least 45 days 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. If mailed in the manner provided in Section 3.03, the notice of
redemption shall be conclusively presumed to have been given whether or not the
Holder actually receives such notice. Failure to give such notice or any defect
in the notice shall not affect the validity of the redemption.
Section 3.05 Deposit of Redemption or Purchase Price.
One Business Day prior to the redemption or purchase date, the
Company will deposit with the Trustee or with the Paying Agent money sufficient
to pay the redemption or purchase price of and accrued interest and Liquidated
Damages, if any, on all Notes to be redeemed or purchased on that date. The
Trustee or the Paying Agent will 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 or purchase price of, and accrued
interest and Liquidated Damages, if any, on, all Notes to be redeemed or
purchased.
If the Company complies with the provisions of the preceding
paragraph, on and after the redemption or purchase date, interest will cease to
accrue on the Notes or the portions of Notes called for redemption or purchase.
If a Note is redeemed or purchased 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 or purchase
is not so paid upon surrender for redemption or purchase because of the failure
of the Company to comply with the preceding paragraph, interest shall be paid on
the unpaid principal, from the redemption or purchase 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.
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Section 3.06 Notes Redeemed or Purchased in Part.
Upon surrender of a Note that is redeemed or purchased in part, the
Company will issue and, upon receipt of an Authentication Order, the Trustee
will authenticate for the Holder at the expense of the Company a new Note equal
in principal amount to the unredeemed or unpurchased portion of the Note
surrendered.
Section 3.07 Optional Redemption.
(a) At any time prior to January 15, 2007, the Company may on any one
or more occasions redeem up to 35% of the aggregate principal amount of Notes
issued under this Indenture at a redemption price equal to 100% of the aggregate
principal amount thereof plus a premium equal to the Applicable Eurodollar Rate
in effect on the date on which the notice of redemption is given, plus accrued
and unpaid interest and Liquidated Damages, if any, to the redemption date, with
the net cash proceeds of a sale of Equity Interests (other than Disqualified
Stock) or a contribution to the common equity of the Company; provided that:
(1) at least 65% of the aggregate principal amount of
Notes originally issued under this Indenture (excluding Notes held by
the Company and its Subsidiaries) remains outstanding immediately
after the occurrence of such redemption; and
(2) the redemption occurs within 45 days of the date of
the closing of such sale of Equity Interests or contribution to the
common equity of the Company.
(b) Except pursuant to the preceding paragraph, the Notes will not be
redeemable at the Company's option prior to January 15, 2007.
(c) On or after January 15, 2007, the Company may redeem all or a
part of the Notes 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, on the Notes
redeemed to the applicable redemption date, if redeemed during the twelve-month
period beginning on January 15 of the years indicated below, subject to the
rights of Holders on the relevant record date to receive interest on the
relevant interest payment date:
Year Percentage
---- ----------
2007.............................................. 102.000%
2008.............................................. 101.000%
2009 and thereafter............................... 100.000%
Unless the Company defaults in the payment of the redemption price,
interest will cease to accrue on the Notes or portions thereof called for
redemption on the applicable redemption date.
(d) Any redemption pursuant to this Section 3.07 shall be made
pursuant to the provisions of Sections 3.01 through 3.06 hereof.
Section 3.08 Special Redemptions.
(a) Except as set forth in clauses (b) and (c) of this Section 3.08
or under Sections 4.10 and 4.15 hereof, the Company shall not be required to
make mandatory redemption or sinking fund payments with respect to the Notes.
39
(b) If prior to 5:00 pm New York time on May 4, 2005 (the "Special
Mandatory Redemption Date"), the Trustee has not received from the Company an
Officer's Certificate, in the form attached as Exhibit A to the Escrow
Agreement, the Trustee shall deliver to the Escrow Agent a certificate in the
form attached as Exhibit D to the Escrow Agreement, and shall thereby cause the
Escrow Agent to distribute the Escrow Property in accordance with Section 1.4(e)
of the Escrow Agreement. In the event the Reorganization shall not have occurred
on or prior to May 6, 2005, the Trustee shall use the proceeds received from the
Escrow Agent, to the extent available under the terms of this Indenture, to
redeem the Notes at 100% of the aggregate principal amount of the Notes plus
accrued interest to the date of such redemption. Upon the closing of the Merger
on or before the Special Mandatory Redemption Date, the foregoing provisions of
this Section 3.08(b) shall be null and void.
(c) At anytime prior to the Special Mandatory Redemption Date, the
Company, with the consent of, or as instructed by, IWO Holdings, Inc., may elect
to redeem the Notes upon 10 days prior notice to the Trustee. Promptly upon the
receipt of such notice from the Company, the Trustee shall provide written
notice to the Escrow Agent of the Company's determination, and shall thereby
cause the Escrow Agent to distribute the Escrow Property in accordance with
Section 1.4(f) of the Escrow Agreement. The Trustee shall use the proceeds
received from the Escrow Agent, to the extent available under the terms of this
Indenture, to redeem the Notes at 100% of the aggregate principal amount of the
Notes plus accrued interest to the date of such redemption. Upon the closing of
the Merger on or before the Special Mandatory Redemption Date, the foregoing
provisions of this Section 3.08(c) shall be null and void.
Section 3.09 Offer to Purchase by Application of Excess Proceeds.
In the event that, pursuant to Section 4.10 hereof, the Company is
required to commence an offer to all Holders to purchase Notes (an "Asset Sale
Offer"), it will follow the procedures specified below.
The Asset Sale Offer shall be made to all Holders and all holders of
other Indebtedness that is pari passu with the Notes containing provisions
similar to those set forth in this Indenture with respect to offers to purchase
or redeem with the proceeds of sales of assets. The Asset Sale Offer will remain
open for a period of at least 20 Business Days following its commencement and
not more than 30 Business Days, except to the extent that a longer period is
required by applicable law (the "Offer Period"). No later than three Business
Days after the termination of the Offer Period (the "Purchase Date"), the
Company will apply all Excess Proceeds (the "Offer Amount") to the purchase of
Notes and such other pari passu Indebtedness (on a pro rata basis, if
applicable) or, if less than the Offer Amount has been tendered, all Notes and
other Indebtedness tendered in response to the Asset Sale Offer. Payment for any
Notes so purchased will 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 and
Liquidated Damages, if any, will 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 will be payable to Holders who tender Notes pursuant to the Asset Sale
Offer.
Upon the commencement of an Asset Sale Offer, the Company will send,
by first class mail, a notice to the Trustee and each of the Holders, with a
copy to the Trustee. The notice will contain all instructions and materials
necessary to enable such Holders to tender Notes pursuant to the Asset Sale
Offer. The notice, which will govern the terms of the Asset Sale Offer, will
state:
(1) that the Asset Sale Offer is being made pursuant to
this Section 3.09 and Section 4.10 hereof and the length of time the
Asset Sale Offer will remain open;
40
(2) the Offer Amount, the purchase price and the Purchase
Date;
(3) that any Note not tendered or accepted for payment
will continue to accrue interest;
(4) that, unless the Company defaults in making such
payment, any Note accepted for payment pursuant to the Asset Sale
Offer will cease to accrue interest after the Purchase Date;
(5) that Holders electing to have a Note purchased
pursuant to an Asset Sale Offer may elect to have Notes purchased in
integral multiples of $1,000 only;
(6) that Holders electing to have Notes purchased pursuant
to any Asset Sale Offer will be required to surrender the Note, with
the form entitled "Option of Holder to Elect Purchase" attached to
the Notes 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;
(7) that Holders will 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 Xxxxxx is
withdrawing his election to have such Note purchased;
(8) that, if the aggregate principal amount of Notes and
other pari passu Indebtedness surrendered by holders thereof exceeds
the Offer Amount, the Company will select the Notes and other pari
passu Indebtedness to be purchased on a pro rata basis based on the
principal amount of Notes and such other pari passu Indebtedness
surrendered (with such adjustments as may be deemed appropriate by
the Company so that only Notes in denominations of $1,000, or
integral multiples thereof, will be purchased); and
(9) that Holders whose Notes were purchased only in part
will 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 will, 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 if less than the Offer Amount has been tendered, all Notes tendered,
and will deliver or cause to be delivered to the Trustee the Notes properly
accepted together with 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 case may be, will 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 will promptly issue a new Note, and the
Trustee, upon written request from the Company, will authenticate and mail or
deliver (or cause to be transferred by book entry) 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 will 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.
41
ARTICLE 4
COVENANTS
Section 4.01 Payment of Notes.
The Company will pay or cause to be paid the principal of, premium,
if any, and interest and Liquidated Damages, if any, on, the Notes on the dates
and in the manner provided in the Notes. Principal, premium, if any, and
interest and Liquidated Damages, if any will 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 will pay all
Liquidated Damages, if any, in the same manner on the dates and in the amounts
set forth in the Registration Rights Agreement.
The Company will 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 will 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.
The Company will 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 will 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 fails to maintain any such required office or agency or fails
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.
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 will 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 will give prompt
written notice to the Trustee of any such designation or rescission and of any
change in the location of any such other office or agency.
The Company hereby designates the following address as one such
office or agency of the Company in accordance with Section 2.03 hereof:
U.S. Bank National Association
000 Xxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000
Section 4.03 Reports.
(a) Whether or not required by the rules and regulations of the SEC,
so long as any Notes are outstanding, the Company will furnish to the holders of
the Notes or cause the trustee to furnish to the holders of the Notes, within
the time periods specified in the SEC's rules and regulations:
42
(1) all quarterly and annual reports that would be
required to be filed with the SEC on Forms 10-Q and 10-K if the
Company were required to file such reports; and
(2) 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.
All such reports will be prepared in all material respects in
accordance with all of the rules and regulations applicable to such reports.
Each annual report on Form 10-K will include a report on the Company's
consolidated financial statements by the Company's certified independent
accountants. In addition, following the consummation of the Exchange Offer
contemplated by the Registration Rights Agreement, the Company will file a copy
of each of the reports referred to in clauses (1) and (2) above with the SEC for
public availability within the time periods specified in the rules and
regulations applicable to such reports (unless the SEC will not accept such a
filing) and will post the reports on its website within those time periods.
If, at any time after consummation of the Exchange Offer contemplated
by the Registration Rights Agreement, the Company is no longer subject to the
periodic reporting requirements of the Exchange Act for any reason, the Company
will nevertheless continue filing the reports specified in the preceding
paragraphs of this covenant with the SEC within the time periods specified above
unless the SEC will not accept such a filing. the Company will not take any
action for the purpose of causing the SEC not to accept any such filings. If,
notwithstanding the foregoing, the SEC will not accept the Company's filings for
any reason, the Company will post the reports referred to in the preceding
paragraphs on its website within the time periods that would apply if the
Company were required to file those reports with the SEC.
Delivery of reports and information to the Trustee under this Section
4.03 is for informational purposes only and the Trustee's receipt of the
foregoing shall not constitute actual or constructive notice of any of the
information therein or determinable from the information contained therein. The
Trustee shall have no obligation to review or analyze such information.
(b) If the Company has designated any of its Subsidiaries as
Unrestricted Subsidiaries, then the quarterly and annual financial information
required by the preceding paragraphs will include a reasonably detailed
presentation, 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, of the financial condition and results of operations of
the Company and its Restricted Subsidiaries separate from the financial
condition and results of operations of the Unrestricted Subsidiaries of the
Company.
(c) In addition, the Company and the Guarantors agree that, for so
long as any Notes remain outstanding, they will furnish to the holders of the
Notes and to securities analysts and prospective investors, upon their request,
the information required to be delivered pursuant to Rule 144A(d)(4) under the
Securities Act.
Section 4.04 Compliance Certificate.
(a) The Company and each Guarantor (to the extent that such Guarantor
is so required under the TIA) shall deliver to the Trustee, within 105 days
after the end of each fiscal year (commencing with the year ending December 31,
2005), 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
43
the Company has kept, observed, performed and fulfilled its obligations under
this Indenture and the Security Agreement, 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 the Security Agreement and is not in default in
the performance or observance of any of the terms, provisions and conditions of
this Indenture or the Security Agreement (or, if a Default or Event of Default
has 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 year-end financial
statements delivered pursuant to Section 4.03 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 4 or Article 5 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) So long as any of the Notes are outstanding, the Company will
deliver to the Trustee, forthwith upon any Officer 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 will pay, and will 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 will 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 and each of the Guarantors
(to the extent that it may lawfully do so) hereby expressly waives all benefit
or advantage of any such law, and covenants that it will not, by resort to any
such law, hinder, delay or impede the execution of any power herein granted to
the Trustee, but will suffer and permit the execution of every such power as
though no such law has been enacted.
Section 4.07 Restricted Payments.
(a) The Company will not, and will not permit any of its Restricted
Subsidiaries to, directly or indirectly:
44
(1) declare or pay any dividend or make any other payment
or distribution on account of the Company's Equity Interests
(including, without limitation, any payment in connection with any
merger or consolidation involving the Company) or to the direct or
indirect holders of the Company's Equity Interests in their capacity
as such (other than dividends or distributions payable in Equity
Interests (other than Disqualified Stock) of the Company);
(2) purchase, redeem or otherwise acquire or retire for
value (including, without limitation, in connection with any merger
or consolidation involving the Company) any Equity Interests of the
Company or any direct or indirect parent of the Company;
(3) make any payment on or with respect to, or purchase,
redeem, defease or otherwise acquire or retire for value any
Indebtedness of the Company that is contractually subordinated to the
Notes or to any Note Guarantee (excluding any intercompany
Indebtedness between or among the Company and any of its Restricted
Subsidiaries), except a payment of interest or principal at the
Stated Maturity thereof; or
(4) make any Restricted Investment
(all such payments and other actions set forth in these clauses (1) through (4)
above being collectively referred to as "Restricted Payments"), unless, at the
time of and after giving effect to such Restricted Payment:
(1) no Default or Event of Default has occurred and is
continuing or would occur as a consequence of such Restricted
Payment;
(2) 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
two-quarter period, have been permitted to incur at least $1.00 of
additional Indebtedness pursuant to the Debt to Cash Flow Ratio test
set forth in the first paragraph of the covenant described in Section
4.09 hereof; and
(3) such Restricted Payment, together with the aggregate
amount of all other Restricted Payments made by the Company and its
Restricted Subsidiaries since the day following the Merger (excluding
Restricted Payments permitted by clauses (2), (3), (5) and (6) of the
next succeeding paragraph), is less than the sum, without
duplication, of:
(a) 100% of the Company's Consolidated Cash Flow
for the period (taken as one accounting period) from the beginning of the
first fiscal quarter commencing after the date of the Merger to the end of the
Company's most recently ended fiscal quarter for which internal financial
statements are available at the time of such Restricted Payment less the product
of 1.5 times the Company's Consolidated Interest Expense for the same period;
plus
(b) 100% of the aggregate net cash proceeds
received by the Company since the date of the Merger as a contribution to its
common equity capital or from the issue or sale of Equity Interests of the
Company (other than Disqualified Stock) or from the issue or sale of convertible
or exchangeable Disqualified Stock or convertible or exchangeable debt
securities of the Company that have been converted into or exchanged for such
Equity Interests (other than Equity Interests (or Disqualified Stock or debt
securities) sold to a Subsidiary of the Company); plus
45
(c) to the extent that any Restricted Investment
that was made after the date of the Merger is sold for cash or otherwise
liquidated or repaid for cash, the lesser of (i) the cash return of capital with
respect to such Restricted Investment (less the cost of disposition, if any) and
(ii) the initial amount of such Restricted Investment; plus
(d) to the extent that any Unrestricted
Subsidiary of the Company designated as such after the date of the Merger is
redesignated as a Restricted Subsidiary after the date of this Indenture, the
lesser of (i) the Fair Market Value of the Company's Investment in such
Subsidiary as of the date of such redesignation or (ii) such Fair Market Value
as of the date on which such Subsidiary was originally designated as an
Unrestricted Subsidiary after the date of this Indenture; plus
(e) 100% of any dividends received by the Company
or a Restricted Subsidiary of the Company after the date of the Merger from
an Unrestricted Subsidiary of the Company.
(b) So long as no Default has occurred and is continuing or would be
caused thereby, the preceding provisions will not prohibit:
(1) the payment of any dividend or the consummation of any
irrevocable redemption within 60 days after the date of declaration
of the dividend or giving of the redemption notice, as the case may
be, if at the date of declaration or notice, the dividend or
redemption payment would have complied with the provisions of this
Indenture;
(2) the making of any Restricted Payment in exchange for,
or out of the net cash proceeds of the substantially concurrent sale
(other than to a Subsidiary of the Company) of, Equity Interests of
the Company (other than Disqualified Stock) or from the substantially
concurrent contribution of common equity capital to the Company;
provided that the amount of any such net cash proceeds that are
utilized for any such Restricted Payment will be excluded from clause
(3)(b) of the preceding paragraph;
(3) the repurchase, redemption, defeasance or other
acquisition or retirement for value of Indebtedness of the Company or
any Guarantor that is contractually subordinated to the Notes or to
any Note Guarantee with the net cash proceeds from a substantially
concurrent incurrence of Permitted Refinancing Indebtedness;
(4) the repurchase, redemption, defeasance or other
acquisition or retirement for value of any Equity Interests of the
Company or any Restricted Subsidiary of the Company held by any
current or former officer, director or employee of the Company or any
of its Restricted Subsidiaries pursuant to any equity subscription
agreement, employment agreement, stock option agreement,
shareholders' agreement or similar agreement; provided that the
aggregate price paid for all such repurchased, redeemed, acquired or
retired Equity Interests may not exceed $500,000 in any twelve-month
period;
(5) the repurchase of Equity Interests deemed to occur
upon the exercise of stock options to the extent such Equity
Interests represent a portion of the exercise price of those stock
options or the payment of income taxes due in connection with such
exercise;
(6) the declaration and payment of regularly scheduled or
accrued dividends to holders of any class or series of Disqualified
Stock of the Company or any Restricted Subsidiary of the Company
issued on or after the date of the Merger in accordance with the Debt
to Cash Flow Ratio test described in Section 4.09 hereof; and
(7) additional Restricted Payments in an amount not to
exceed $5.0 million.
46
The amount of all Restricted Payments other than cash will be the
Fair Market Value on the date of the Restricted Payment of the asset(s) or
securities proposed to be transferred or issued by the Company or such
Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment.
The Fair Market Value of any assets or securities that are required to be valued
by this covenant will be determined by the Board of Directors of the Company
whose resolution with respect thereto will be delivered to the trustee. The
Board of Directors' determination must be based upon an opinion or appraisal
issued by an accounting, appraisal or investment banking firm of national
standing if the Fair Market Value exceeds $5.0 million.
Section 4.08 Dividend and Other Payment Restrictions Affecting Subsidiaries.
(a) The Company will not, and will not permit any of its Restricted
Subsidiaries to, directly or indirectly, create or permit to exist or become
effective any consensual 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) sell, lease or transfer any of its properties or
assets to the Company or any of its Restricted Subsidiaries.
(b) However, the preceding restrictions will not apply to
encumbrances or restrictions existing under or by reason of:
(1) agreements governing Existing Indebtedness and the
Senior Discount Notes as in effect on the date of this Indenture, and
any amendments, restatements, modifications, renewals, supplements,
refundings, replacements or refinancings thereof; provided that the
amendments, restatements, modifications, renewals, supplements,
refundings, replacements or refinancings are not materially more
restrictive, taken as a whole, with respect to such dividend and
other payment restrictions than those contained in those agreements
on the date of this Indenture;
(2) this Indenture, the Notes and the Note Guarantees, and
any amendments, restatements, modifications, renewals, supplements,
refundings, replacements or refinancings thereof; provided that the
amendments, restatements, modifications, renewals, supplements,
refundings, replacements or refinancings are not materially more
restrictive, taken as a whole, with respect to such dividend and
other payment restrictions than those contained in this Indenture,
the Notes and the Note Guarantees on the date of such amendment,
restatement, modification, renewal, supplement, refunding,
replacement or refinancing;
(3) agreements and instruments governing Indebtedness
issued pursuant to clause (13) of Section 4.09 hereof; provided that
such encumbrances and restrictions are not materially more
restrictive, taken as a whole, than those contained in this
Indenture, the Notes and the Note Guarantees;
(4) applicable law, rule, regulation or order;
(5) 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
47
the extent such Indebtedness or Capital Stock 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;
(6) customary non-assignment provisions in contracts and
licenses entered into in the ordinary course of business;
(7) purchase money obligations for property acquired in
the ordinary course of business and Capital Lease Obligations that
impose restrictions on the property purchased or leased of the nature
described in clause (3) of the preceding paragraph;
(8) any agreement for the sale or other disposition of a
Restricted Subsidiary that restricts distributions by that Restricted
Subsidiary pending the sale or other disposition;
(9) Permitted Refinancing Indebtedness; provided that the
restrictions contained in the agreements governing such Permitted
Refinancing Indebtedness are not materially more restrictive, taken
as a whole, than those contained in the agreements governing the
Indebtedness being refinanced;
(10) Liens permitted to be incurred under the provisions
described in Section 4.12 hereof that limit the right of the debtor
to dispose of the assets subject to such Liens;
(11) provisions limiting the disposition or distribution
of assets or property in joint venture agreements, asset sale
agreements, sale-leaseback agreements, stock sale agreements and
other similar agreements entered into with the approval of the
Company's Board of Directors, which limitation is applicable only to
the assets that are the subject of such agreements; and
(12) restrictions on cash or other deposits or net worth
imposed by customers under contracts entered into in the ordinary
course of business.
Section 4.09 Incurrence of Indebtedness and Issuance of Preferred Stock.
(a) The Company will not, and will not permit any of its Restricted
Subsidiaries to, directly or indirectly, create, incur, issue, assume, guarantee
or otherwise become directly or indirectly liable, contingently or otherwise,
with respect to (collectively, "incur") any Indebtedness (including Acquired
Debt), and the Company will not issue any Disqualified Stock and will not permit
any of its Restricted Subsidiaries to issue any shares of preferred stock;
provided, however, that the Company may incur Indebtedness (including Acquired
Debt) or issue Disqualified Stock, and the Company's Restricted Subsidiaries may
incur Indebtedness (including Acquired Debt) or issue preferred stock, if the
Company's Debt to Cash Flow Ratio immediately preceding the date on which such
additional Indebtedness is incurred or such Disqualified Stock or such preferred
stock is issued, as the case may be, would have been no greater than 7.0 to 1.
(b) The provisions of 4.09(a) will not prohibit the incurrence of any
of the following items of Indebtedness (collectively, "Permitted Debt"):
(1) the incurrence by the Company and its Restricted
Subsidiaries of Indebtedness represented by the Senior Discount Notes
and the related guarantees in an aggregate principal amount,
including all Permitted Refinancing Indebtedness incurred to renew,
refund, refinance, replace, defease or discharge any Indebtedness
incurred pursuant to this clause (1), not to exceed $140.0 million;
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(2) the incurrence by the Company and its Restricted
Subsidiaries of Existing Indebtedness;
(3) the incurrence by the Company and the Guarantors of
Indebtedness represented by the Notes and the related Note Guarantees
to be issued on the date of this Indenture and the exchange Notes and
the related Note Guarantees to be issued pursuant to the Registration
Rights Agreement;
(4) the incurrence by the Company and its Restricted
Subsidiaries of Indebtedness represented by Capital Lease
Obligations, mortgage financings, vendor financings or purchase money
obligations, in each case, incurred for the purpose of financing all
or any part of the purchase price or cost of design, construction,
installation or improvement of property, plant or equipment used in
the business of the Company or any of its Restricted Subsidiaries, in
an aggregate principal amount, including all Permitted Refinancing
Indebtedness incurred to renew, refund, refinance, replace, defease
or discharge any Indebtedness incurred pursuant to this clause (4),
not to exceed $25.0 million at any time outstanding;
(5) the incurrence by the Company or any of its Restricted
Subsidiaries of Permitted Refinancing Indebtedness in exchange for,
or the net proceeds of which are used to renew, refund, refinance,
replace, defease or discharge any Indebtedness (other than
intercompany Indebtedness) that was permitted by this Indenture to be
incurred under Section 4.09(a) or clauses (1), (2), (3), (4), (5),
(12) or (13) of this Section 4.09(b);
(6) the incurrence by the Company or any of its Restricted
Subsidiaries of intercompany Indebtedness between or among the
Company and any of its Restricted Subsidiaries; provided, however,
that:
(a) if the Company or any Guarantor is the
obligor on such Indebtedness and the payee is not the Company or a Guarantor,
such Indebtedness must be expressly subordinated to the prior payment in full
in cash of all Obligations then due with respect to the Notes, in the case of
the Company, or the Note Guarantee, in the case of a Guarantor; and
(b) (i) any subsequent issuance or transfer of
Equity Interests that results in any such Indebtedness being held by a Person
other than the Company or a Restricted Subsidiary of the Company and (ii) any
sale or other transfer of any such Indebtedness to a Person that is not either
the Company or a Restricted Subsidiary of the Company, will 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
(6);
(7) the issuance by any of the Company's Restricted
Subsidiaries to the Company or to any of its Restricted Subsidiaries
of shares of preferred stock; provided, however, that:
(a) any subsequent issuance or transfer of Equity
Interests that results in any such preferred stock being held by a Person
other than the Company or a Restricted Subsidiary of the Company; and
(b) any sale or other transfer of any such
preferred stock to a Person that is not either the Company or a Restricted
Subsidiary of the Company, will be deemed, in each case, to constitute an
issuance of such preferred stock by such Restricted Subsidiary that was not
permitted by this clause (7);
(8) the incurrence by the Company or any of its Restricted
Subsidiaries of Hedging Obligations in the ordinary course of
business;
49
(9) the guarantee by the Company or any of the Guarantors
of Indebtedness of the Company or any of its Restricted Subsidiaries
that was permitted to be incurred by another provision of this
Section 4.09; provided that if the Indebtedness being guaranteed is
subordinated to the Notes, then the Guarantee shall be subordinated
to the same extent as the Indebtedness guaranteed;
(10) the incurrence by the Company or any of its
Restricted Subsidiaries of Indebtedness in respect of workers'
compensation claims, self-insurance obligations, bankers'
acceptances, performance and surety bonds in the ordinary course of
business;
(11) the incurrence by the Company or any of its
Restricted Subsidiaries of Indebtedness arising from the honoring by
a bank or other financial institution of a check, draft or similar
instrument inadvertently drawn against insufficient funds, so long as
such Indebtedness is covered within five Business Days;
(12) Acquired Debt incurred at the time a Sprint PCS
Affiliate is merged with or into, becomes a Restricted Subsidiary of,
or transfers all or substantially all of its assets to the Company or
any of its Restricted Subsidiaries, but only to the extent that the
Company's Debt to Cash Flow Ratio immediately following such
incurrence would decrease as compared to the Company's Debt to Cash
Flow Ratio immediately prior to such incurrence; and
(13) 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 renew, refund, refinance, replace, defease or discharge
any Indebtedness incurred pursuant to this clause (13), not to exceed
$30.0 million.
The Company will not incur, and will not permit any Guarantor to
incur, any Indebtedness (including Permitted Debt) that is contractually
subordinated in right of payment to any other Indebtedness of the Company or
such Guarantor unless such Indebtedness is also contractually subordinated in
right of payment to the Notes and the applicable Note Guarantee on substantially
identical terms; provided, however, that no Indebtedness will be deemed to be
contractually subordinated in right of payment to any other Indebtedness of the
Company solely by virtue of being unsecured or by virtue of being secured on a
first or junior Lien basis.
For purposes of determining compliance with this Section 4.09, in the
event that an item of proposed Indebtedness (or any portion thereof) meets the
criteria of more than one of the categories of Permitted Debt described in
clauses (1) through (13) above, or is entitled to be incurred pursuant to the
first paragraph of this Section 4.09, the Company, in its sole discretion, shall
classify such item of Indebtedness (or any such portion) on the date of its
incurrence, and (except in the case of Senior Discount Notes incurred in
reliance on the exception provided by clause (1) of the definition of Permitted
Debt) may later reclassify all or a portion of such item of Indebtedness, in any
manner that complies with this Section 4.09. Indebtedness under the Senior
Discount Notes issued on the date on which the Notes are first issued and
authenticated under this Indenture will be deemed to have been incurred in
reliance on the exception provided by clause (1) of the definition of Permitted
Debt. The accrual of interest, the accretion or amortization of original issue
discount, the payment of interest on any Indebtedness in the form of additional
Indebtedness with the same terms, the reclassification of preferred stock as
Indebtedness due to a change in accounting principles, and the payment of
dividends on Disqualified Stock in the form of additional shares of the same
class of Disqualified Stock will not be deemed to be an incurrence of
Indebtedness or an issuance of Disqualified Stock for purposes of this Section
4.09; provided, in each such case, that the amount of any such accrual,
accretion or payment is included in the Company's Consolidated Interest Expense
as accrued. Notwithstanding any other provision of this Section 4.09, the
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maximum amount of Indebtedness that the Company or any Restricted Subsidiary may
incur pursuant to this Section 4.09 shall not be deemed to be exceeded solely as
a result of fluctuations in exchange rates or currency values.
The amount of any Indebtedness outstanding as of any date will be:
(1) the accreted value of the Indebtedness, in the case of
any Indebtedness issued with original issue discount;
(2) the principal amount of the Indebtedness, in the case
of any other Indebtedness; and
(3) in respect of Indebtedness of another Person secured by
a Lien on the assets of the specified Person, the lesser of:
(a) the Fair Market Value of such assets at the
date of determination; and
(b) the amount of the Indebtedness of the other
Person secured by such Xxxx.
Section 4.10 Asset Sales.
The Company will not, and will not permit any of its Restricted
Subsidiaries to, consummate an Asset Sale unless:
(1) the Company or the 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 or Equity Interests issued or sold or
otherwise disposed of; and
(2) at least 75% of the consideration received in the Asset
Sale by the Company or such Restricted Subsidiary is in the form of cash. For
purposes of this provision, each of the following will be deemed to be cash:
(a) any liabilities, as shown on the Company's
most recent consolidated 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 pursuant to a customary agreement that releases
the Company or such Restricted Subsidiary from further liability;
(b) any securities, notes or other obligations
received by the Company or any such Restricted Subsidiary from such transferee
that are contemporaneously, subject to ordinary settlement periods, converted by
the Company or such Restricted Subsidiary into cash, to the extent of the cash
received in that conversion; and
(c) any stock or assets of the kind referred to
in clause (2) or clause (4) of the next paragraph of this covenant.
Within 360 days after the receipt of any Net Proceeds from an Asset
Sale, the Company (or the applicable Restricted Subsidiary, as the case may be)
may apply such Net Proceeds:
(1) to repay the Notes, or to repay the Notes and any other
secured Indebtedness of the Company on a pro rata basis; or
51
(2) to acquire all or substantially all of the assets of,
or any Capital Stock of, another Permitted Business; provided that, in the
case of an acquisition of Capital Stock, the Permitted Business is or, after
giving effect to such acquisition of such Capital Stock, becomes a Restricted
Subsidiary of the Company;
(3) to make a capital expenditure; or
(4) to acquire other assets that are not classified as
current assets under GAAP and that are used or useful in a Permitted Business.
Pending the final application of any Net Proceeds, the Company may temporarily
reduce revolving credit borrowings, if any, or otherwise invest the Net Proceeds
in any manner that is not prohibited by this Indenture.
Any Net Proceeds from Asset Sales that are not applied or invested as
provided in the second paragraph of this covenant will constitute "Excess
Proceeds." Within 30 days of the date on which the aggregate amount of Excess
Proceeds exceeds $10.0 million, the Company will make an Asset Sale Offer to all
holders of the Notes and all holders of other Indebtedness (including any Senior
Discount Notes then outstanding) that is pari passu with the Notes containing
provisions similar to those set forth in this Indenture with respect to offers
to purchase or redeem with the proceeds of sales of assets to purchase the
maximum principal amount of the Notes and such other pari passu Indebtedness
that may be purchased out of the Excess Proceeds. The offer price in any Asset
Sale Offer will be equal to 100% of the aggregate principal amount of the Notes
repurchased plus accrued and unpaid interest to the repurchase date plus accrued
and unpaid Liquidated Damages, if any, to the repurchase date, and will be
payable in cash. If any Excess Proceeds remain after consummation of an Asset
Sale Offer, the Company may use those Excess Proceeds for any purpose not
otherwise prohibited by this Indenture. If the aggregate purchase price of the
Notes and other pari passu Indebtedness tendered into such Asset Sale Offer
exceeds the amount of Excess Proceeds, the trustee will select the Notes and
such other pari passu Indebtedness to be purchased on a pro rata basis (on the
basis of purchase price). Upon completion of each Asset Sale Offer, the amount
of Excess Proceeds will be reset at zero.
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 those laws and regulations are applicable in connection with each
repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the
provisions of any securities laws or regulations conflict with the Asset Sale
provisions of this Indenture, the Company will comply with the applicable
securities laws and regulations and will not be deemed to have breached its
obligations under the Asset Sale provisions of this Indenture by virtue of such
compliance.
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 of the Company (each, an "Affiliate Transaction"), unless:
(1) the 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
52
(2) 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 $1.0 million, a resolution of the Board of Directors of the Company
set forth in an Officers' Certificate certifying that such Affiliate Transaction
complies with this covenant and that such Affiliate Transaction 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 $10.0 million, an opinion from an independent nationally recognized
accounting or investment banking firm, or a firm experienced in the appraisal or
similar review of similar types of transactions, that the financial terms of
such transaction are fair to the Company or such Restricted Subsidiary from a
financial point of view.
(b) The following items will not be deemed to be Affiliate
Transactions and, therefore, will not be subject to the provisions of the prior
paragraph:
(1) any employment agreement, employee benefit plan,
officer or director indemnification agreement or any similar arrangement entered
into by the Company or any of its Restricted Subsidiaries in the ordinary course
of business and payments pursuant thereto;
(2) transactions between or among the Company and/or its
Restricted Subsidiaries;
(3) transactions with a Person (other than an Unrestricted
Subsidiary of the Company) that is an Affiliate of the Company solely because
the Company owns, directly or through a Restricted Subsidiary, an Equity
Interest in, or controls, such Person;
(4) payment of reasonable directors' fees;
(5) any issuance of Equity Interests (other than
Disqualified Stock) of the Company to Affiliates of the Company;
(6) Restricted Payments and Permitted Investments that do
not violate the provisions of Section 4.07 hereof;
(7) loans or advances to employees in the ordinary course
of business not to exceed $1.0 million in the aggregate at any one time
outstanding; and
(8) consummation of the Reorganization, including the
Merger.
Section 4.12 Liens.
The Company will not, and will not permit any of its Restricted
Subsidiaries to, directly or indirectly create, incur, assume or suffer to exist
any Lien of any kind on any asset now owned or hereafter acquired, except
Permitted Liens.
Section 4.13 Business Activities.
The Company will not, and will not permit any of its Restricted
Subsidiaries to, engage in any business other than Permitted Businesses, except
to such extent as would not be material to the Company and its Restricted
Subsidiaries taken as a whole.
53
Section 4.14 Corporate Existence.
Subject to Article 5 hereof, the Company shall do or cause to be done
all things necessary to preserve and keep in full force and effect:
(1) its corporate existence, and the corporate,
partnership or other existence of each of its Subsidiaries, in
accordance with the respective organizational documents (as the same
may be amended from time to time) of the Company or any such
Subsidiary; and
(2) the rights (charter and statutory), licenses and
franchises of the Company and its Subsidiaries; provided, however,
that the Company shall not be required to preserve any such right,
license or franchise, or the corporate, partnership or other
existence of any of its 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 Subsidiaries, taken as
a whole, and that the loss thereof is not adverse in any material
respect to the Holders of the Notes.
Section 4.15 Offer to Repurchase Upon Change of Control.
(a) If a Change of Control occurs, each Holder will have the right to
require the Company to repurchase all or any part (equal to $1,000 or an
integral multiple of $1,000) of that Xxxxxx's Notes pursuant to a Change of
Control Offer. In the Change of Control Offer, the Company will offer a Change
of Control Payment in cash equal to 101% of the aggregate principal amount of
Notes repurchased plus accrued and unpaid interest to the repurchase date plus
accrued and unpaid Liquidated Damages, if any, to the repurchase date, subject
to the rights of Holders on the relevant record date to receive interest due on
the relevant interest payment date. Within ten days following any Change of
Control, the Company will mail a notice to each Holder describing the
transaction or transactions that constitute the Change of Control and offering
to repurchase notes on the Change of Control Payment Date specified in the
notice, which date will be no earlier than 30 days and no later than 60 days
from the date such notice is mailed, pursuant to the procedures required by this
Indenture and described in such notice. 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 those laws and regulations are
applicable in connection with the repurchase of the Notes as a result of a
Change of Control. To the extent that the provisions of any securities laws or
regulations conflict with the Change of Control provisions of this Indenture,
the Company will comply with the applicable securities laws and regulations and
will not be deemed to have breached its obligations under this Indenture by
virtue of such compliance.
(b) On the Change of Control Payment Date, the Company will, 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 or portions of Notes properly
tendered; and
(3) deliver or cause to be delivered to the trustee the
Notes properly accepted together with an Officers' Certificate stating the
aggregate principal amount of Notes or portions of Notes being purchased by the
Company.
54
The Paying Agent will promptly mail to each holder of Notes properly
tendered the Change of Control Payment for such notes, and the Trustee will
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. The Company will publicly announce the results of
the Change of Control Offer on or as soon as practicable after the Change of
Control Payment Date.
The provisions described above that require the Company to make a
Change of Control Offer following a Change of Control will be applicable whether
or not any other provisions of this Indenture are applicable.
(c) The Company will not be required to make a Change of Control
Offer upon a Change of Control if (1) a third party makes the Change of Control
Offer in the manner, at the times and otherwise in compliance with the
requirements applicable to a Change of Control Offer made by the Company and
purchases all Notes properly tendered and not withdrawn under the Change of
Control Offer, or (2) notice of redemption has been given pursuant to this
Indenture as described in Section 3.07 hereof, unless and until there is a
default in payment of the applicable redemption price.
Section 4.16 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
and is paid to all Holders of the 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 4.17 Additional Note Guarantees.
If the Company or any of its Restricted Subsidiaries acquires or
creates another Domestic Restricted Subsidiary after the date of this Indenture,
then that newly acquired or created Domestic Restricted Subsidiary will become a
Guarantor and execute a supplemental indenture and deliver an Opinion of Counsel
satisfactory to the trustee within 10 Business Days of the date on which it was
acquired or created; provided that any Domestic Restricted Subsidiary that
constitutes an Immaterial Subsidiary need not become a Guarantor until such time
as it ceases to be an Immaterial Subsidiary. The form of such Note Guarantee is
attached as Exhibit E hereto.
Section 4.18 Designation of Restricted and Unrestricted Subsidiaries.
The Board of Directors of the Company may designate any Restricted
Subsidiary to be an Unrestricted Subsidiary if that designation would not cause
a Default. If a Restricted Subsidiary is designated as an Unrestricted
Subsidiary, the aggregate Fair Market Value of all outstanding Investments owned
by the Company and its Restricted Subsidiaries in the Subsidiary designated as
Unrestricted will be deemed to be an Investment made as of the time of the
designation and will reduce the amount available for Restricted Payments under
the covenant described in Section 4.07 hereof, or under one or more clauses of
the definition of Permitted Investments, as determined by the Company. That
designation will only be permitted if the Investment would be permitted at that
time and if the 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 that redesignation
would not cause a Default.
55
Any designation of a Subsidiary of the Company as an Unrestricted
Subsidiary will be evidenced to the trustee by filing with the Trustee a
certified copy of a resolution of the Board of Directors giving effect to such
designation and an Officers' Certificate certifying that such designation
complied with the preceding conditions and was permitted by the covenant
described above under Section 4.07 hereof. If, at any time, any Unrestricted
Subsidiary would fail to meet the preceding requirements as an Unrestricted
Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary for
purposes of this Indenture and any Indebtedness of such Subsidiary will 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
the covenant described in Section 4.09 hereof, the Company will be in default of
such covenant. The Board of Directors of the Company may at any time designate
any Unrestricted Subsidiary to be a Restricted Subsidiary of the Company;
provided that such designation will 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 will only be
permitted if (1) such Indebtedness is permitted under the covenant described in
Section 4.09 hereof, calculated on a pro forma basis as if such designation had
occurred at the beginning of the two-quarter reference period; and (2) no
Default or Event of Default would be in existence following such designation.
ARTICLE 5
SUCCESSORS
Section 5.01 Merger, Consolidation, or Sale of Assets.
The Company will not, directly or indirectly: (1) consolidate or
merge with or into another Person (whether or not the Company is the surviving
corporation); or (2) sell, assign, transfer, convey or otherwise dispose of all
or substantially all of the properties or assets of the Company and its
Restricted Subsidiaries taken as a whole, in one or more related transactions,
to another Person, unless:
(1) either: (a) the Company is the surviving corporation;
or (b) the Person formed by or surviving any such consolidation or merger (if
other than the Company) or to which such sale, assignment, transfer, conveyance
or other disposition has been made is a corporation organized or existing under
the laws of the United States, any state of the United States or the District of
Columbia;
(2) the Person formed by or surviving any such
consolidation or merger (if other than the Company) or the Person to which such
sale, assignment, transfer, conveyance or other disposition has been made
assumes all the obligations of the Company under the Notes, this Indenture and
the Registration Rights Agreement (if any) pursuant to agreements reasonably
satisfactory to the trustee;
(3) immediately after such transaction, no Default or Event
of Default exists; and
(4) the Company or the Person formed by or surviving any
such consolidation or merger (if other than the Company), or to which such
sale, assignment, transfer, conveyance or other disposition has been made,
would, on the date of such transaction after giving pro forma effect thereto and
any related financing transactions as if the same had occurred at the beginning
of the applicable two-quarter period, either (a) have a Debt to Cash Flow Ratio
no higher than the Company's Debt to Cash Flow Ratio immediately prior to such
transaction, or (b) be permitted to incur at least $1.00 of additional
Indebtedness pursuant to the Debt to Cash Flow Ratio test set forth in Section
4.09(a).
In addition, the Company will not, directly or indirectly,
lease all or substantially all of the properties and assets of it and its
Restricted Subsidiaries taken as a whole, in one or more related transactions,
to any other Person.
56
This Section 5.01 will not apply to:
(1) the merger of IWO Escrow with and into IWO Holdings,
Inc. in connection with the Reorganization;
(2) a merger of the Company with an Affiliate solely for
the purpose of reincorporating the Company in another jurisdiction;
(3) any consolidation or merger, or any sale, assignment,
transfer, conveyance, lease or other disposition of assets between or among
the Company and its Restricted Subsidiaries; or
(4) any merger or consolidation of the Company with a
corporation that, prior to such merger, (a) does not have any liabilities or
significant assets other than cash and (b) was formed solely for the purpose of
facilitating the formation of a holding company whose principal asset is the
common stock of the Company.
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
properties or assets of the Company in a transaction that is subject to, and
that complies with the provisions of, Section 5.01 hereof, the successor Person
formed by such consolidation or into or with which the Company is merged or to
which such sale, 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, assignment, transfer, lease, conveyance or
other disposition, the provisions of this Indenture referring to the "Company"
shall refer instead to the successor Person 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 in a transaction that is subject to,
and that complies with the provisions of, Section 5.01 hereof.
ARTICLE 6
DEFAULTS AND REMEDIES
Section 6.01 Events of Default.
Each of the following is an "Event of Default":
(1) default for 30 days in the payment when due of
interest on, or Liquidated Damages, if any, with respect to, the
Notes;
(2) default in the payment when due (at maturity, upon
redemption or otherwise) of the principal of, or premium, if any, on,
the Notes;
(3) failure by the Company or any of its Restricted
Subsidiaries for 30 days to comply with the provisions of Sections
4.07, 4.09, 4.10, 4.15 or 5.01 hereof;
(4) failure by the Company or any of its Restricted
Subsidiaries for 60 days after notice to the Company by the Trustee
or the Holders of at least 25% in aggregate principal amount of the
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Notes then outstanding voting as a single class to comply with any of
the other agreements in this Indenture;
(5) 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:
(A) is caused by a failure to pay principal of,
or interest or premium, if any, 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
(B) results in the acceleration of such
Indebtedness prior to its express maturity,
and, in each case, the 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;
(6) failure by the Company or any of its Restricted
Subsidiaries to pay final judgments entered by a court or courts of
competent jurisdiction aggregating in excess of $5.0 million, which
judgments are not paid, discharged or stayed for a period of 60 days;
(7) default under any Indebtedness (other than the Notes)
that is secured by the Collateral, whether such Indebtedness now
exists or is created after the date hereof, if that default:
(a) is caused by a failure to pay principal of,
or interest or premium, if any, on, such Indebtedness prior to the
expiration of the grace period provided in such Indebtedness on the
date of such default;
(b) results in the acceleration of such
Indebtedness prior to its express maturity; or
(c) otherwise entitles the Collateral Trustee,
without the consent of the holders of the Notes, to foreclose upon,
collect or otherwise enforce its security interests thereunder;
(8) failure by the Company to comply with any material
term of the Escrow Agreement that is not cured within 10 days;
(9) the Escrow Agreement, the Security Agreement, or any
other Security Document, or any Lien purported to be granted thereby,
on the Escrow Property or the Collateral is held in any judicial
proceeding to be unenforceable or invalid, in whole or in part, or
ceases for any reason (other than pursuant to a release that is
delivered or becomes effective under the terms of this Indenture or,
in the case of the Escrow Property, pursuant to the terms of the
Escrow Agreement) to be fully enforceable and perfected;
(10) except as permitted by this Indenture, any Note
Guarantee 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;
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(11) other than the Reorganization, the Company or any of
its Restricted Subsidiaries that is a Significant Subsidiary or any
group of Restricted Subsidiaries of the Company that, taken together,
would constitute a Significant Subsidiary, pursuant to or within the
meaning of Bankruptcy Law:
(A) commences a voluntary case,
(B) consents to the entry of an order for
relief against it in an involuntary case,
(C) consents to the appointment of a custodian
of it or for all or substantially all of its property,
(D) makes a general assignment for the benefit
of its creditors, or
(E) generally is not paying its debts as they
become due;
(12) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that:
(A) is for relief against the Company or any of
its Restricted Subsidiaries that is a Significant
Subsidiary or any group of Restricted Subsidiaries of the
Company that, taken together, would constitute a
Significant Subsidiary, in an involuntary case;
(B) appoints a custodian of the Company or any
of its Restricted Subsidiaries that is a Significant
Subsidiary or any group of Restricted Subsidiaries of the
Company that, taken together, would constitute a
Significant Subsidiary, or for all or substantially all of
the property of the Company or any of its Restricted
Subsidiaries that is a Significant Subsidiary or any group
of Restricted Subsidiaries of the Company that, taken
together, would constitute a Significant Subsidiary; or
(C) orders the liquidation of the Company or
any of its Restricted Subsidiaries that is a Significant
Subsidiary or any group of Restricted Subsidiaries of the
Company that, taken together, would constitute a
Significant Subsidiary;
and the order or decree remains unstayed and in effect for
60 consecutive days; or
(13) (a) except as set forth in clause (b) below, breach
by the Company or any of its Restricted Subsidiaries of any
representation or warranty or agreement in the Security Agreement,
which breach remains uncured for five Business Days after notice to
the Company by the Trustee or the Holders of at least 25% in
aggregate principal amount of the Notes then outstanding voting as a
single class, (b) breach by the Company or any of its Restricted
Subsidiaries of any representation or warranty or agreement in the
Security Agreement relating to the validity, perfection or priority
of the security interest granted in the Collateral, which breach
remains uncured for five Business Days after any Officer has
knowledge thereof, (c) the repudiation by the Company or any of its
Restricted Subsidiaries of any of its obligations under the Security
Agreement or (d) the unenforceability of the Security Agreement
against the Company or any of its Restricted Subsidiaries for any
reason.
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Section 6.02 Acceleration.
In the case of an Event of Default specified in clause (11) or (12)
of Section 6.01 hereof, with respect to the Company, any Restricted Subsidiary
of the Company that is a Significant Subsidiary or any group of Restricted
Subsidiaries of the Company that, taken together, would constitute a Significant
Subsidiary, all outstanding Notes will become due and payable immediately
without further action or notice. If any other Event of Default occurs and is
continuing, the Trustee or the Holders of at least 25% in aggregate principal
amount of the then outstanding Notes may declare all the Notes to be due and
payable immediately.
Upon any such declaration, the Notes shall become due and payable
immediately.
The Holders of a majority in aggregate principal amount of the then
outstanding Notes by written notice to the Trustee may, on behalf of all of the
Holders, rescind an acceleration and its consequences, if the rescission would
not conflict with any judgment or decree and if all existing Events of Default
(except nonpayment of principal, interest or premium or Liquidated Damages, if
any, that has become due solely because of the acceleration) have been cured or
waived.
If an Event of Default occurs on or after January 15, 2007 by reason
of any willful action (or inaction) taken (or not taken) by or on behalf of the
Company with the intention of avoiding payment of the premium that the Company
would have had to pay if the Company then had elected to redeem the Notes
pursuant to Section 3.07 hereof, then, upon acceleration of the Notes, an
equivalent premium shall also become and be immediately due and payable, to the
extent permitted by law, anything in this Indenture or in the Notes to the
contrary notwithstanding. If an Event of Default occurs prior to January 15,
2007 by reason of any willful action (or inaction) taken (or not taken) by or on
behalf of the Company with the intention of avoiding the prohibition on
redemption of the Notes prior to such date, then, upon acceleration of the
Notes, an additional premium shall also become and be immediately due and
payable, to the extent permitted by law, in an amount, for each of the years
beginning on January 15 of the years set forth below, as set forth below
(expressed as a percentage of the principal amount of the Notes on the date of
payment that would otherwise be due but for the provisions of this sentence):
YEAR PERCENTAGE
---- ----------
2005........................................... 6.250%
2006........................................... 4.688%
Section 6.03 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 and
Liquidated Damages, 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.
Holders of not less than a majority in aggregate principal amount of
the then outstanding Notes, 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
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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 aggregate 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.
Section 6.06 Limitation on Suits.
A Holder may pursue a remedy with respect to this Indenture or the
Notes only if:
(1) such Holder gives to the Trustee written notice that
an Event of Default is continuing;
(2) Holders of at least 25% in aggregate principal amount
of the then outstanding Notes make a written request to the Trustee
to pursue the remedy;
(3) such Holder or Holders offer and, if requested,
provide to the Trustee security or indemnity reasonably satisfactory
to the Trustee against any loss, liability or expense;
(4) the Trustee does not comply with the request within 60
days after receipt of the request and the offer of security or
indemnity; and
(5) during such 60-day period, Holders of a majority in
aggregate principal amount of the then outstanding Notes do not give
the Trustee a direction inconsistent with such 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 6.07 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;
provided that a Holder shall not have the right to institute any such suit for
the enforcement of payment if and to the extent that the institution or
prosecution thereof or the entry of judgment therein would, under applicable
law, result in the surrender, impairment, waiver or loss of the Lien of this
Indenture upon any property subject to such Lien.
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Section 6.08 Collection Suit by Trustee.
If an Event of Default specified in Section 6.01(1) or (2) hereof
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 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 6, 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, expenses 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.
The Trustee may fix a record date and payment date for any payment to
Holders of Notes pursuant to this Section 6.10.
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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 6.11 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
aggregate principal amount of the then outstanding Notes.
ARTICLE 7
TRUSTEE
Section 7.01 Duties of Trustee.
(a) If an Event of Default has occurred and is continuing, the
Trustee will 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 person would exercise or use under the circumstances in the conduct of
such person's own affairs.
(b) Except during the continuance of an Event of Default:
(1) the duties of the Trustee will 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
(2) in the absence of bad faith on its part, the Trustee
may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements
of this Indenture. However, the Trustee will examine the certificates
and opinions to determine whether or not they conform to the
requirements of this Indenture.
(c) The Trustee may not be relieved from liabilities for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(1) this paragraph does not limit the effect of paragraph
(b) of this Section 7.01;
(2) the Trustee will 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
(3) the Trustee will 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), and (c) of this Section 7.01.
(e) No provision of this Indenture will require the Trustee to expend
or risk its own funds or incur any liability. The Trustee will be under no
obligation to exercise any of its rights and powers under this Indenture at the
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request of any Holders, unless such Holder has offered to the Trustee security
and indemnity satisfactory to it against any loss, liability or expense.
(f) The Trustee will 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) Except with respect to Section 4.01, the trustee shall have no
duty to inquire as to the performance of the Company with respect to the
covenants contained in Articles 4 and 5.
(h) The Trustee shall not be deemed to have knowledge of a Default or
Event of Default other than the failure to pay principal and interest within the
meaning of Section 6.01 (1) and (2), unless the trustee shall have received
express written notice thereof from the Company or from the Holders in
accordance with this Indenture.
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 will 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 will 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 will not
be responsible for the misconduct or negligence of any agent appointed with due
care.
(d) The Trustee will 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 will be sufficient if
signed by an Officer of the Company.
(f) The Trustee will 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 have offered to the Trustee reasonable
indemnity or security against the losses, liabilities and expenses that might be
incurred by it in compliance with such request or direction.
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 (if this Indenture has been qualified under
the TIA) 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.
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Section 7.04 Trustee's Disclaimer.
The Trustee will 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 will not be responsible for the use or application of any money
received by any Paying Agent other than the Trustee, and it will 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 known to the Trustee, the Trustee will 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 or
Liquidated Damages, 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.
(a) Within 60 days after each May 15 beginning with the May 15
following the date of this Indenture, and for so long as Notes remain
outstanding, the Trustee will mail to the Holders of the Notes a brief report
dated as of such reporting date that complies with TIA ss. 313(a) (but if no
event described in TIA ss. 313(a) has occurred within the twelve months
preceding the reporting date, no report need be transmitted). The Trustee also
will comply with TIA ss. 313(b)(2). The Trustee will also transmit by mail all
reports as required by TIA ss. 313(c).
(b) A copy of each report at the time of its mailing to the Holders
of Notes will be mailed by the Trustee to the Company and filed by the Trustee
with the SEC and each stock exchange on which the Notes are listed in accordance
with TIA ss. 313(d). The Company will promptly notify the Trustee when the Notes
are listed on any stock exchange.
Section 7.07 Compensation and Indemnity.
(a) The Company will pay to the Trustee from time to time reasonable
compensation for its acceptance of this Indenture and services hereunder. The
Trustee's compensation will not be limited by any law on compensation of a
trustee of an express trust. The Company will 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 will
include the reasonable compensation, disbursements and expenses of the Trustee's
agents and counsel.
(b) The Company and the Guarantors will 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 and the Guarantors (including this Section 7.07) and defending
itself against any claim (whether asserted by the Company, the Guarantors, 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 may be attributable to its negligence or bad
faith. The Trustee will notify the Company promptly of any claim for which it
may seek indemnity. Failure by the Trustee to so notify the Company will not
relieve the Company or any of the Guarantors of their obligations hereunder. The
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Company or such Guarantor will defend the claim and the Trustee will cooperate
in the defense. The Trustee may have separate counsel and the Company will pay
the reasonable fees and expenses of such counsel. Neither the Company nor any
Guarantor need pay for any settlement made without its consent, which consent
will not be unreasonably withheld.
(c) The obligations of the Company and the Guarantors under this
Section 7.07 will survive the satisfaction and discharge of this Indenture.
(d) To secure the Company's and the Guarantors' payment obligations
in this Section 7.07, the Trustee will 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 will survive the
satisfaction and discharge of this Indenture.
(e) When the Trustee incurs expenses or renders services after an
Event of Default specified in Section 6.01 (11) or (12) 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.
(f) The Trustee will comply with the provisions of TIA ss. 313(b)(2)
to the extent applicable.
Section 7.08 Replacement of Trustee.
(a) A resignation or removal of the Trustee and appointment of a
successor Trustee will become effective only upon the successor Trustee's
acceptance of appointment as provided in this Section 7.08.
(b) 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 a
majority in aggregate 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:
(1) the Trustee fails to comply with Section 7.10 hereof;
(2) 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;
(3) a custodian or public officer takes charge of the
Trustee or its property; or
(4) the Trustee becomes incapable of acting.
(c) If the Trustee resigns or is removed or if a vacancy exists in
the office of Trustee for any reason, the Company will promptly appoint a
successor Trustee. Within one year after the successor Trustee takes office, the
Holders of a majority in aggregate principal amount of the then outstanding
Notes may appoint a successor Trustee to replace the successor Trustee appointed
by the Company.
(d) If a successor Xxxxxxx does not take office within 60 days after
the retiring Trustee resigns or is removed, the retiring Trustee, the Company,
or the Holders of at least 10% in aggregate principal amount of the then
outstanding Notes may petition any court of competent jurisdiction for the
appointment of a successor Trustee.
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(e) If the Trustee, after written request by any Holder who has been
a Holder for at least six months, fails to comply with Section 7.10 hereof, such
Holder may petition any court of competent jurisdiction for the removal of the
Trustee and the appointment of a successor Trustee.
(f) A successor Trustee will deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon, the
resignation or removal of the retiring Trustee will become effective, and the
successor Trustee will have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee will mail a notice of its succession
to Holders. The retiring Trustee will promptly transfer all property held by it
as Trustee to the successor Trustee; provided all sums owing to the Trustee
hereunder have been paid and subject to the Lien provided for in Section 7.07
hereof. Notwithstanding replacement of the Trustee pursuant to this Section
7.08, the Company's obligations under Section 7.07 hereof will continue for the
benefit of the retiring Trustee.
Section 7.09 Successor Trustee by Xxxxxx, 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 will be the
successor Trustee.
Section 7.10 Eligibility; Disqualification.
There will at all times be a Trustee hereunder that is a corporation
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 $100.0
million as set forth in its most recent published annual report of condition.
This Indenture will always have a Trustee who satisfies the
requirements of TIA ss. 310(a)(1), (2) and (5). The Trustee is subject to TIA
ss. 310(b).
Section 7.11 Preferential Collection of Claims Against Company.
The Trustee is subject to TIA ss. 311(a), excluding any creditor
relationship listed in TIA ss. 311(b). A Trustee who has resigned or been
removed shall be subject to TIA ss. 311(a) to the extent indicated therein.
ARTICLE 8
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.01 Option to Effect Legal Defeasance or Covenant Defeasance.
The Company may at any time, at the option of its Board of Directors
evidenced by a resolution set forth in an Officers' Certificate, 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 8.
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 and each of the Guarantors will,
subject to the satisfaction of the conditions set forth in Section 8.04 hereof,
be deemed to have been discharged from their obligations with respect to all
outstanding Notes (including the Note Guarantees) on the date the conditions set
forth below are satisfied (hereinafter, "Legal Defeasance"). For this purpose,
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Legal Defeasance means that the Company and the Guarantors will be deemed to
have paid and discharged the entire Indebtedness represented by the outstanding
Notes (including the Note Guarantees), which will 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 clauses (1) and (2) below, and to have
satisfied all their other obligations under such Notes, the Note Guarantees 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 will survive until otherwise terminated or discharged
hereunder:
(1) the rights of Holders of outstanding Notes to receive
payments in respect of the principal of, or interest or premium and
Liquidated Damages, if any, on, such Notes when such payments are due
from the trust referred to in Section 8.04 hereof;
(2) the Company's obligations with respect to such Notes
under Article 2 and Section 4.02 hereof;
(3) the rights, powers, trusts, duties and immunities of
the Trustee hereunder and the Company's and the Guarantors'
obligations in connection therewith; and
(4) this Article 8.
Subject to compliance with this Article 8, 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 and each of the Guarantors will,
subject to the satisfaction of the conditions set forth in Section 8.04 hereof,
be released from each of their obligations under the covenants contained in
Sections 4.07, 4.08, 4.09, 4.10, 4.11, 4.12, 4.13, 4.15, 4.16, 4.17 and 4.18
hereof and clause (4) of Section 5.01 hereof with respect to the outstanding
Notes on and after the date the conditions set forth in Section 8.04 hereof are
satisfied (hereinafter, "Covenant Defeasance"), and the Notes will 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 will continue to be deemed "outstanding" for
all other purposes hereunder (it being understood that such Notes will not be
deemed outstanding for accounting purposes). For this purpose, Covenant
Defeasance means that, with respect to the outstanding Notes and Note
Guarantees, the Company and the Guarantors may omit to comply with and will 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 will 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 and Note Guarantees will be unaffected thereby. In
addition, upon the Company's exercise under Section 8.01 hereof of the option
applicable to this Section 8.03, subject to the satisfaction of the conditions
set forth in Section 8.04 hereof, Sections 6.01(3) through 6.01(5) hereof will
not constitute Events of Default.
Section 8.04 Conditions to Legal or Covenant Defeasance.
In order to exercise either Legal Defeasance or Covenant Defeasance
under either Section 8.02 or 8.03 hereof:
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(1) the Company must irrevocably deposit with the Trustee,
in trust, for the benefit of the Holders, cash in U.S. dollars,
non-callable Government Securities, or a combination thereof, in such
amounts as will be sufficient, in the opinion of a nationally
recognized investment bank, appraisal firm, or firm of independent
public accountants, to pay the principal of, premium and Liquidated
Damages, if any, and interest 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 such stated date for payment or to a particular
redemption date;
(2) in the case of an election under Section 8.02 hereof,
the Company must deliver to the Trustee an Opinion of Counsel
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 will
not recognize income, gain or loss for federal income tax purposes as
a result of such Legal Defeasance and will be subject to federal
income tax on the same amounts, in the same manner and at the same
times as would have been the case if such Legal Defeasance had not
occurred;
(3) in the case of an election under Section 8.03 hereof,
the Company must deliver to the Trustee an Opinion of Counsel
confirming that the Holders of the outstanding Notes will not
recognize income, gain or loss for federal income tax purposes as a
result of such Covenant Defeasance and will be subject to federal
income tax on the same amounts, in the same manner and at the same
times as would have been the case if such Covenant Defeasance had not
occurred;
(4) no Default or Event of Default shall have occurred and
be continuing 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) and the deposit will not result in a breach or
violation of, or constitute a default under, any other instrument to
which the Company or any Guarantor is a party or by which the Company
or any Guarantor is bound;
(5) such Legal Defeasance or Covenant Defeasance will 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 Subsidiaries is a party or by which
the Company or any of its Subsidiaries is bound;
(6) the Company must deliver to the Trustee an Officers'
Certificate stating that the deposit was not made by the Company with
the intent of preferring the Holders of Notes over the other
creditors of the Company with the intent of defeating, hindering,
delaying or defrauding any creditors of the Company or others; and
(7) the Company must deliver to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all
conditions precedent relating to the Legal Defeasance or the Covenant
Defeasance have been complied with.
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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
will 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 and Liquidated Damages, if
any, and interest, but such money need not be segregated from other funds except
to the extent required by law.
The Company will 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.
Notwithstanding anything in this Article 8 to the contrary, the
Trustee will 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(1) 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 or
Liquidated Damages, if any, or interest on, any Note and remaining unclaimed for
two years after such principal, premium or Liquidated Damages, if any, or
interest has become due and payable shall be paid to the Company on its request
or (if then held by the Company) will be discharged from such trust; and the
Holder of such Note will thereafter be permitted to 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, will 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 will not be less than 30 days
from the date of such notification or publication, any unclaimed balance of such
money then remaining will be repaid to the Company.
Section 8.07 Reinstatement.
If the Trustee or Paying Agent is unable to apply any U.S. 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 and the Guarantors' obligations under this
Indenture and the Notes and the Note Guarantees will 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 or
Liquidated Damages, if any, or interest on, any Note following the reinstatement
70
of its obligations, the Company will 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 9
AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.01 Without Consent of Holders of Notes.
Notwithstanding Section 9.02 of this Indenture, the Company, the
Guarantors and the Trustee may amend or supplement this Indenture or the Notes
or the Note Guarantees without the consent of any Holder of Note:
(1) to cure any ambiguity, defect or inconsistency;
(2) to provide for uncertificated Notes in addition to or
in place of certificated Notes;
(3) to provide for the assumption of the Company's or a
Guarantor's obligations to the Holders of the Notes and Note
Guarantees by a successor to the Company or such Guarantor pursuant
to Article 5 or Article 11 hereof;
(4) 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;
(5) to comply with requirements of the SEC in order to
effect or maintain the qualification of this Indenture under the TIA;
(6) to conform the text of this Indenture, the Security
Agreement or the Notes to any provision of the "Description of Senior
Secured Floating Rate Notes" section of the Company's Offering
Memorandum dated December 14, 2004, relating to the initial offering
of the Notes, to the extent that such provision in that "Description
of Senior Secured Floating Rate Notes" was intended to be a verbatim
recitation of a provision of this Indenture, the Note Guarantees, the
Security Agreement or the Notes;
(7) to provide for the issuance of Additional Notes in
accordance with the limitations set forth in this Indenture as of the
date hereof;
(8) to add additional assets as Collateral or to release
Collateral from the Liens securing Obligations to the extent
permitted or required by the Security Agreement or this Indenture
without Holder consent; or
(9) to allow any Guarantor to execute a supplemental
indenture and/or a Note Guarantee with respect to the Notes.
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 will join with the Company and the Guarantors in the
execution of any amended or 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 will not be
obligated to enter into such amended or supplemental indenture that affects its
own rights, duties or immunities under this Indenture or otherwise.
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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 (including, without limitation,
Section 3.09, 4.10 and 4.15 hereof) and the Notes and the Note Guarantees with
the consent of the Holders of at least a majority in aggregate principal amount
of the then outstanding Notes (including, without limitation, Additional Notes,
if any) voting as a single class (including, without limitation, consents
obtained in connection with a tender offer or Exchange Offer for, or purchase
of, 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 or Liquidated Damages, if any, or interest
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
or the Note Guarantees may be waived with the consent of the Holders of a
majority in aggregate principal amount of the then outstanding Notes (including,
without limitation, Additional Notes, if any) voting as a single class
(including, without limitation, consents obtained in connection with a tender
offer or Exchange Offer for, or purchase of, the Notes). Section 2.08 hereof
shall determine which Notes are considered to be "outstanding" for purposes of
this Section 9.02.
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 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 will
join with the Company and the Guarantors 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 will not be
obligated to, enter into such amended or supplemental Indenture.
It is 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,
supplement or waiver, but it is sufficient if such consent approves the
substance thereof.
After an amendment, supplement or waiver under this Section 9.02
becomes effective, the Company will 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, will not,
however, in any way impair or affect the validity of any such amended or
supplemental indenture or waiver. Subject to Sections 6.04 and 6.07 hereof, the
Holders of a majority in aggregate principal amount of the Notes then
outstanding voting as a single class may waive compliance in a particular
instance by the Company with any provision of this Indenture or the Notes or the
Note Guarantees. However, without the consent of each Holder affected, an
amendment, supplement or waiver under this Section 9.02 may not (with respect to
any Notes held by a non-consenting Holder):
(1) reduce the principal amount of Notes whose Holders
must consent to an amendment, supplement or waiver;
(2) reduce the principal of or change the fixed maturity
of any Note or alter or waive 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 4.15 hereof);
(3) reduce the rate of or change the time for payment of
interest, including default interest, on any Note;
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(4) waive a Default or Event of Default in the payment of
principal of, or premium or Liquidated Damages, if any, or interest
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);
(5) make any Note payable in money other than that stated
in the Notes;
(6) 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 interest or premium or
Liquidated Damages, if any, on, the Notes;
(7) waive a redemption payment with respect to any Note
(other than a payment required by Sections 3.09, 4.10 or 4.15
hereof);
(8) release any Guarantor from any of its obligations
under its Note Guarantee or this Indenture, except in accordance with
the terms of this Indenture;
(9) except as otherwise provided by this Indenture and the
Security Documents, release any Collateral from the Lien of this
Indenture and the Security Documents; or
(10) make any change in the preceding amendment and waiver
provisions.
Section 9.03 Compliance with Trust Indenture Act.
Every amendment or supplement to this Indenture or the Notes will 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 Xxxxxx'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 amendment, supplement or waiver 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 will not
affect the validity and effect of such amendment, supplement or waiver.
Section 9.06 Trustee to Sign Amendments, etc.
The Trustee will sign any amended or supplemental indenture
authorized pursuant to this Article 9 if the amendment or supplement does not
adversely affect the rights, duties, liabilities or immunities of the Trustee.
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The Company may not sign an amended or supplemental indenture until the Board of
Directors of the Company approves it. In executing any amended or supplemental
indenture, the Trustee will be entitled to receive and (subject to Section 7.01
hereof) will be fully protected in relying upon, in addition to the documents
required by Section 13.04 hereof, an Officers' Certificate and an Opinion of
Counsel stating that the execution of such amended or supplemental indenture is
authorized or permitted by this Indenture.
ARTICLE 10
SECURITY AGREEMENTS
Section 10.01. Escrow Agreement and Security Agreement.
The due and punctual payment of the principal of and interest and
Liquidated Damages, if any, on the Notes when and as the same shall be due and
payable, whether on an interest payment date, at maturity, by acceleration,
repurchase, redemption or otherwise, and interest on the overdue principal of
and interest and Liquidated Damages (to the extent permitted by law), if any, on
the Notes and performance of all other obligations of the Company to the Holders
of Notes or the Trustee under this Indenture and the Notes, according to the
terms hereunder or thereunder, are secured as provided in the Escrow Agreement
and in the Security Agreement, which the Company has entered into with the
Collateral Trustee simultaneously with the execution of this Indenture. Each
Holder of Notes, by its acceptance thereof, consents and agrees to the terms of
the Escrow Agreement and of the Security Agreement (including, without
limitation, the provisions providing for foreclosure and release of Collateral)
as the same may be in effect or may be amended from time to time in accordance
with its terms and authorizes and directs the Collateral Trustee to enter into
the Security Agreement and to perform its obligations and exercise its rights
thereunder in accordance therewith and hereby directs the Trustee to enter into
the Escrow Agreement and to perform its obligations and exercise its rights
thereunder in accordance therewith. The Company will deliver to the Trustee
copies of all documents delivered to the Escrow Agent pursuant to the Escrow
Agreement and to the Collateral Trustee pursuant to the Security Agreement, and
will do or cause to be done all such acts and things as may be necessary or
proper, or as may be required by the provisions of the Escrow Agreement or the
Security Agreement, to assure and confirm to the Trustee and the Collateral
Trustee the security interest in the Collateral contemplated hereby, by the
Security Agreement, by the Escrow Agreement or any part of either thereof, each
as from time to time constituted, so as to render the same available for the
security and benefit of this Indenture and of the Notes secured hereby,
according to the intent and purposes herein expressed. The Company will take,
and will cause its Subsidiaries to take, upon request of the Trustee or the
Collateral Trustee, any and all actions reasonably required to cause the
Security Agreement to create and maintain, as security for the Obligations of
the Company hereunder, a valid and enforceable perfected first priority Lien in
and on all the Collateral, in favor of the Collateral Trustee for the benefit of
the Holders of Notes, superior to and prior to the rights of all third Persons
and subject to no other Liens than Permitted Liens. Although the Escrow Property
is not intended to be property of the Company, the Company will take such
actions as may be reasonably required by the Trustee to ensure that to the
extent that the Company has any rights in the Escrow Property the Trustee has a
valid and perfected first priority security interest therein subject to no other
Liens. The Trustee shall have no obligation prior to the occurrence of an Event
of Default and the continuance thereof with respect to the enforcement of the
Security Agreement by the Collateral Trustee or otherwise or the protection of
any interest in any Collateral.
Section 10.02. Recording and Opinions
(a) The Company will furnish to the Trustee simultaneously with the
execution and delivery of this Indenture an Opinion of Counsel either:
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(1) stating that, in the opinion of such counsel, all
action has been taken with respect to the recording, registering and
filing of this Indenture, financing statements or other instruments
necessary to make effective the Lien intended to be created by the
Security Agreement, and reciting with respect to the security
interests in the Collateral, the details of such action; or
(2) stating that, in the opinion of such counsel, no such
action is necessary to make such Lien effective.
(b) The Company will furnish to the Collateral Trustee and the
Trustee on January 6 in each year beginning with January 6, 2006, an Opinion of
Counsel, dated as of such date, either:
(1) (A) stating that, in the opinion of such counsel,
action has been taken with respect to the recording, registering,
filing, re-recording, re-registering and re-filing of all
supplemental indentures, financing statements, continuation
statements or other instruments of further assurance as is necessary
to maintain the Lien of the Security Agreement and reciting with
respect to the security interests in the Collateral the details of
such action or referring to prior Opinions of Counsel in which such
details are given, and (B) stating that, in the opinion of such
counsel, based on relevant laws as in effect on the date of such
Opinion of Counsel, all financing statements and continuation
statements have been executed and filed that are necessary as of such
date and during the succeeding 12 months fully to preserve and
protect, to the extent such protection and preservation are possible
by filing, the rights of the Holders of Notes and the Collateral
Trustee and the Trustee hereunder and under the Security Agreement
with respect to the security interests in the Collateral; or
(2) stating that, in the opinion of such counsel, no such
action is necessary to maintain such Lien and assignment.
(c) The Company will otherwise comply with the provisions of TIA
ss.314(b).
Section 10.03. Release of Collateral.
(a) Collateral will be released from the Lien and security interest
created by the Security Agreement at any time or from time to time in accordance
with the provisions of the Security Agreement.
(b) At any time when a Default or Event of Default has occurred and
is continuing and the maturity of the Notes has been accelerated (whether by
declaration or otherwise) and the Trustee has delivered a notice of acceleration
to the Collateral Trustee, no release of Collateral pursuant to the provisions
of the Security Agreement will be effective as against the Holders of Notes.
(c)The release of any Collateral from the terms of this Indenture and
the Security Agreement will not be deemed to impair the security under this
Indenture in contravention of the provisions hereof if and to the extent the
Collateral is released pursuant to the terms of the Security Agreement. To the
extent applicable, the Company will cause TIA ss. 313(b), relating to reports,
and TIA ss. 314(d), relating to the release of property or securities from the
Lien and security interest of the Security Agreement and relating to the
substitution therefor of any property or securities to be subjected to the Lien
and security interest of the Security Agreement, to be complied with. Any
certificate or opinion required by TIA ss. 314(d) may be made by an Officer of
the Company except in cases where TIA ss. 314(d) requires that such certificate
or opinion be made by an independent Person, which Person will be an independent
engineer, appraiser or other expert selected or approved by the Trustee and the
Collateral Trustee in the exercise of reasonable care.
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Section 10.04. Certificates of the Company.
(a) The Company will furnish to the Trustee and the Collateral
Trustee, prior to each proposed release of Collateral pursuant to the Security
Agreement:
(1) all documents required by TIA ss.314(d); and
(1) An Opinion of Counsel to the effect that all of the
conditions precedent under this Indenture and the TIA for the release
of such collateral have been satisfied, including without limitation,
the documents required by TIA ss.314(d).
The Trustee may, to the extent permitted by Sections 7.01 and 7.02
hereof, accept as conclusive evidence of compliance with the foregoing
provisions the appropriate statements contained in such documents and such
Opinion of Counsel.
(b) With respect to the Company's obligations under this Section
10.04 relating to delivery of certificates or opinions required by Section
314(d) of the TIA, the Company and each Subsidiary, as the case may be, may, in
the ordinary course of business and except as would have a material adverse
effect on the Company, without any release or consent by the Trustee:
(1) sell or otherwise dispose of, in any transaction or
series of related transactions, any property subject to the lien and
security interest created by the Security Agreement which has become
worn out, defective or obsolete or not used or useful in the
Company's business;
(2) abandon, terminate, cancel, release or make
alterations in or substitutions of any leases or contracts subject to
the lien and security interest created by the Security Agreement;
(3) surrender or modify any franchise, license or permit
subject to the lien and security interest created by the Security
Agreement which it may own or under which it may be operating;
(4) alter, repair, replace, change the location or
position of and add to its structures, machinery, systems, equipment,
fixtures and appurtenances;
(5) grant a nonexclusive license of any Intellectual
Property (as defined in the Security Agreement);
(6) sell, transfer or otherwise dispose of Inventory (as
defined in the Security Agreement) in the ordinary course of
business;
(7) sell, collect, liquidate, factor or otherwise dispose
of accounts receivable in the ordinary course of business;
(8) make cash payments (including for the scheduled
repayment of Indebtedness) from cash that is at any time part of the
Collateral in the ordinary course of business that are not otherwise
prohibited by this Indenture and the Security Agreement; and
(9) abandon any Intellectual Property (as defined in the
Security Agreement) which is no longer used or useful in the
Company's business;
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in each case, without the delivery of any such certificates or opinions upon any
such release; provided that the Company shall deliver to the Trustee, within 30
days after each of the six-month periods ended June 30 and December 31 in each
year an Officer's Certificate to the effect that all releases of Collateral as
to which such certificates or opinions were not delivered in reliance upon this
Section 10.04 by the Company or any Subsidiary, as the case may be, during the
preceding six-month period were not prohibited by this Indenture.
(c) The fair value of Collateral released from the Liens of the
Security Agreement as to which opinions or certificates are not delivered prior
to the applicable date of determination in reliance upon subsection (b) above
shall not be considered in determining whether the aggregate fair value of
Collateral released from the lien of the Security Agreement in any calendar year
exceeds the 10% threshold specified in Section 314(d)(1) of the TIA;
(d) It is expressly understood that this Section 10.04 relates only
to the Company's and each Subsidiary's obligations under the TIA and shall not
affect the Company's and its Subsidiaries' rights or abilities to release
Collateral.
(e) Notwithstanding anything else in this Section 10.04, the Company
shall be required at all times to comply with the TIA with respect to the
subordination or release of any Lien on Collateral and shall not ask the Trustee
or the Collateral Trustee to release or subordinate any Lien on Collateral in
contravention of the requirements of the TIA.
Section 10.05. Certificates of the Trustee.
In the event that the Company wishes to release Collateral in
accordance with the Security Agreement and has delivered the certificates and
documents required by the Security Agreement and Sections 10.03 and 10.04
hereof, the Trustee will determine whether it has received all documentation
required by TIA ss. 314(d) in connection with such release and, based on such
determination and the Opinion of Counsel delivered pursuant to Section 10.04(2)
hereof, will deliver a certificate to the Collateral Trustee setting forth such
determination.
Section 10.06. Authorization of Actions to Be Taken Under the Security
Agreement.
Subject to the provisions of Section 7.01 and 7.02 hereof, the
Trustee may, in its sole discretion and without the consent of the Holders of
Notes, direct, on behalf of the Holders of Notes, the Collateral Trustee in
accordance with the Collateral Trust Agreement to take all actions it deems
necessary or appropriate in order to:
(1) enforce any of the terms of the Security Agreement;
and
(2) collect and receive any and all amounts payable in
respect of the Obligations of the Company hereunder.
The Trustee will have power to institute and maintain such suits and
proceedings as it may deem expedient to prevent any impairment of the Collateral
by any acts that may be unlawful or in violation of the Security Agreement or
this Indenture, and such suits and proceedings as the Trustee may deem expedient
to preserve or protect its interests and the interests of the Holders of Notes
in the Collateral (including power to institute and maintain suits or
proceedings to restrain the enforcement of or compliance with any legislative or
other governmental enactment, rule or order that may be unconstitutional or
otherwise invalid if the enforcement of, or compliance with, such enactment,
77
rule or order would impair the security interest hereunder or be prejudicial to
the interests of the Holders of Notes or of the Trustee).
Section 10.07. Authorization of Receipt of Funds by the Trustee Under the
Security Agreement.
The Trustee is authorized to receive any funds for the benefit of the
Holders of Notes distributed under the Security Agreement, and to make further
distributions of such funds to the Holders of Notes according to the provisions
of this Indenture.
Section 10.08. Termination of Security Interest.
Upon the payment in full of all Obligations of the Company under this
Indenture and the Notes, or upon Legal Defeasance, the Trustee will, at the
request of the Company, deliver a certificate to the Collateral Trustee stating
that such Obligations have been paid in full, and instruct the Collateral
Trustee to release the Liens pursuant to this Indenture and the Security
Agreement.
ARTICLE 11
NOTE GUARANTEES
Section 11.01 Guarantee.
(a) Subject to this Article 11, each of the Guarantors hereby,
jointly and severally, unconditionally guarantees 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 this Indenture,
the Notes or the obligations of the Company hereunder or thereunder, that:
(1) the principal of, premium and Liquidated Damages, if
any, and interest on, the Notes will be promptly paid in full when
due, whether at maturity, by acceleration, redemption or otherwise,
and interest on the overdue principal of and interest on the Notes,
if any, if lawful, and all other obligations of the Company to the
Holders or the Trustee hereunder or thereunder will be promptly paid
in full or performed, all in accordance with the terms hereof and
thereof; and
(2) in case of any extension of time of payment or renewal
of any Notes or any of such other obligations, that same will 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 will be jointly
and severally obligated to pay the same immediately. Each Guarantor agrees that
this is a guarantee of payment and not a guarantee of collection.
(b) The Guarantors hereby agree that their obligations hereunder are
unconditional, irrespective of the validity, regularity or enforceability of the
Notes or this 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. Each Guarantor hereby
waives diligence, presentment, demand of payment, filing of claims with a court
in the event of insolvency or bankruptcy of the Company, any right to require a
proceeding first against the Company, protest, notice and all demands whatsoever
78
and covenant that this Note Guarantee will not be discharged except by complete
performance of the obligations contained in the Notes and this Indenture.
(c) 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, will be reinstated in full
force and effect.
(d) Each Guarantor agrees that it will 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.
Each Guarantor further agrees that, as between the Guarantors, on the one hand,
and the Holders and the Trustee, on the other hand, (1) the maturity of the
obligations guaranteed hereby may be accelerated as provided in Article 6 hereof
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 (2) in the event of any declaration of acceleration of
such obligations as provided in Article 6 hereof, such obligations (whether or
not due and payable) will forthwith become due and payable by the Guarantors for
the purpose of this Note Guarantee. The Guarantors will have the right to seek
contribution from any non-paying Guarantor so long as the exercise of such right
does not impair the rights of the Holders under the Note Guarantee.
Section 11.02 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, the Holders
and the Guarantors hereby irrevocably agree that the obligations of such
Guarantor will be limited to the maximum amount that will, after giving effect
to such 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 11, result in the obligations of such Guarantor
under its Note Guarantee not constituting a fraudulent transfer or conveyance.
Section 11.03 Execution and Delivery of Note Guarantee.
To evidence its Note Guarantee set forth in Section 11.01 hereof,
each Guarantor hereby agrees that a notation of such Note Guarantee
substantially in the form attached as Exhibit E hereto will be endorsed by an
Officer of such Guarantor on each Note authenticated and delivered by the
Trustee and that this Indenture will be executed on behalf of such Guarantor by
one of its Officers.
Each Guarantor hereby agrees that its Note Guarantee set forth in
Section 11.01 hereof will 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 will be valid
nevertheless.
The delivery of any Note by the Trustee, after the authentication
thereof hereunder, will constitute due delivery of the Note Guarantee set forth
in this Indenture on behalf of the Guarantors.
79
In the event that the Company or any of its Restricted Subsidiaries
creates or acquires any Domestic Subsidiary after the date of this Indenture, if
required by Section 4.17 hereof, the Company will cause such Domestic Subsidiary
to comply with the provisions of Section 4.17 hereof and this Article 11, to the
extent applicable.
Section 11.04 Guarantors May Consolidate, etc., on Certain Terms.
Except as otherwise provided in Section 11.05 hereof, no Guarantor
may sell or otherwise dispose of all or substantially all of its assets to, or
consolidate with or merge with or into (whether or not such Guarantor is the
surviving Person) another Person, other than the Company or another Guarantor,
unless:
(1) immediately after giving effect to such transaction,
no Default or Event of Default exists; and
(2) either:
(a) subject to Section 11.05 hereof, the Person
acquiring the property in any such sale or disposition or
the Person formed by or surviving any such consolidation
or merger unconditionally assumes all the obligations of
that Guarantor under this Indenture, its Note Guarantee
and the Registration Rights Agreement on the terms set
forth herein or therein, pursuant to a supplemental
indenture in form and substance reasonably satisfactory to
the Trustee; or
(b) the Net Proceeds of such sale or other
disposition are applied in accordance with the applicable
provisions of this Indenture, including without
limitation, Section 4.10 hereof.
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 will 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 will 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 4 and 5 hereof, and notwithstanding
clauses 2(a) and (b) above, nothing contained in this Indenture or in any of the
Notes will prevent any consolidation or merger of a Guarantor with or into the
Company or another Guarantor, or will 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.
Section 11.05 Releases.
(a) In the event of any sale or other disposition of all or
substantially all of the assets of any Guarantor, by way of merger,
consolidation or otherwise, or a sale or other disposition of all of the Capital
Stock of any Guarantor, in each case to a Person that is not (either before or
after giving effect to such transactions) the Company or a Restricted Subsidiary
of the Company, then such Guarantor (in the event of a sale or other
80
disposition, by way of merger, consolidation or otherwise, of all of the Capital
Stock of such Guarantor) or the corporation acquiring the property (in the event
of a sale or other disposition of all or substantially all of the assets of such
Guarantor) will be released and relieved of any obligations under its Note
Guarantee; provided that the Net Proceeds of such sale or other disposition are
applied in accordance with the applicable provisions of this Indenture,
including without limitation Section 4.10 hereof. Upon delivery by the Company
to the Trustee of an Officers' Certificate and an Opinion of Counsel to the
effect that such sale or other disposition was made by the Company in accordance
with the provisions of this Indenture, including without limitation Section 4.10
hereof, the Trustee will execute any documents reasonably required in order to
evidence the release of any Guarantor from its obligations under its Note
Guarantee.
(b) Upon designation of any Guarantor as an Unrestricted Subsidiary
in accordance with the terms of this Indenture, such Guarantor will be released
and relieved of any obligations under its Note Guarantee.
(c) Upon Legal Defeasance in accordance with Article 8 hereof or
satisfaction and discharge of this Indenture in accordance with Article 12
hereof, each Guarantor will be released and relieved of any obligations under
its Note Guarantee.
Any Guarantor not released from its obligations under its Note
Guarantee as provided in this Section 11.05 will remain liable for the full
amount of principal of and interest and premium and Liquidated Damages, if any,
on the Notes and for the other obligations of any Guarantor under this Indenture
as provided in this Article 11.
ARTICLE 12
satisfaction and discharge
Section 12.01 Satisfaction and Discharge.
This Indenture will be discharged and will cease to be of further
effect as to all Notes issued hereunder, when:
(1) either:
(a) all Notes that have been authenticated,
except lost, stolen or destroyed Notes that have been
replaced or paid and Notes for whose payment money has
theretofore been deposited in trust and thereafter repaid
to the Company, have been delivered to the Trustee for
cancellation; or
(b) all Notes that have not been delivered to
the Trustee for cancellation have become due and payable
by reason of the mailing of a notice of redemption or
otherwise or will become due and payable within one year
and the Company or any Guarantor has irrevocably deposited
or caused to be deposited with the Trustee as trust funds
in trust solely for the benefit of the Holders, cash in
U.S. dollars, non-callable Government Securities, or a
combination thereof, in such amounts as will be
sufficient, without consideration of any reinvestment of
interest, to pay and discharge the entire Indebtedness on
the Notes not delivered to the Trustee for cancellation
for principal, premium and Liquidated Damages, if any, and
accrued interest to the date of maturity or redemption;
(2) no Default or Event of Default has occurred and is
continuing 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) and the deposit will not result in a breach or
violation of, or constitute a default under, any other instrument to
81
which the Company or any Guarantor is a party or by which the Company
or any Guarantor is bound;
(3) the Company or any Guarantor has paid or caused to be
paid all sums payable by it under this Indenture; and
(4) the Company has delivered irrevocable instructions to
the Trustee under this Indenture to apply the deposited money toward
the payment of the Notes at maturity or on the redemption date, as
the case may be.
In addition, the Company must deliver an Officers' Certificate and an Opinion of
Counsel to the Trustee stating that all conditions precedent to satisfaction and
discharge have been satisfied.
Notwithstanding the satisfaction and discharge of this Indenture, if
money has been deposited with the Trustee pursuant to subclause (b) of clause
(1) of this Section 12.01, the provisions of Sections 12.02 and 8.06 hereof will
survive. In addition, nothing in this Section 12.01 will be deemed to discharge
those provisions of Section 7.07 hereof, that, by their terms, survive the
satisfaction and discharge of this Indenture.
Section 12.02 Application of Trust Money.
Subject to the provisions of Section 8.06 hereof, all money deposited
with the Trustee pursuant to Section 12.01 hereof shall be held in trust and
applied by it, in accordance with the provisions of the Notes and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium and
Liquidated Damages, if any) and interest for whose payment such money has been
deposited with the Trustee; but such money need not be segregated from other
funds except to the extent required by law.
If the Trustee or Paying Agent is unable to apply any money or
Government Securities in accordance with Section 12.01 hereof by reason of any
legal proceeding or by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, the Company's and any Guarantor's obligations under this Indenture
and the Notes shall be revived and reinstated as though no deposit had occurred
pursuant to Section 12.01 hereof; provided that if the Company has made any
payment of principal of, premium or Liquidated Damages, if any, or interest on,
any Notes because of the reinstatement of its obligations, the Company shall be
subrogated to the rights of the Holders of such Notes to receive such payment
from the money or Government Securities held by the Trustee or Paying Agent.
ARTICLE 13
MISCELLANEOUS
Section 13.01 Trust Indenture Act Controls.
If any provision of this Indenture limits, qualifies or conflicts
with the duties imposed by TIA ss.318(c), the imposed duties will control.
Section 13.02 Notices.
Any notice or communication by the Company, any Guarantor or the
Trustee to the others is duly given if in writing and delivered in Person or by
first class mail (registered or certified, return receipt requested), facsimile
82
transmission or overnight air courier guaranteeing next day delivery, to the
others' address:
If to the Company and/or any Guarantor:
IWO Escrow Company
000 Xxxxxxxxx Xxxxxx
Xxxxx, Xxx Xxxx 00000-2909
Attn.: Xxxx Xxxxxxx
Telecopier: (000) 000-0000
with a copy to:
Xxxx Xxxxx Xxxxxxx Xxxxxxx and Xxxxxxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Attn.: Xxxxxx X. Xxxxxxxxx
Telecopier: (000) 000-0000
If to the Trustee:
U.S. Bank National Association
EP-MN-WS3C
00 Xxxxxxxxxx Xxxxxx
Xx. Xxxx, XX 00000-0000
Attn.: Corporate Trust Department
Telecopier: (000) 000-0000
The Company, any Guarantor 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)
will 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 receipt acknowledged, if transmitted by
facsimile; 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 will 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 will also be so mailed to any
Person described in TIA ss. 313(c), to the extent required by the TIA. Failure
to mail a notice or communication to a Holder or any defect in it will 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 will
mail a copy to the Trustee and each Agent at the same time.
83
Section 13.03 Communication by Holders of Notes with Other Holders of Notes.
Holders may communicate pursuant to TIA ss. 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 ss.
312(c).
Section 13.04 Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company to the Trustee to take
any action under this Indenture, the Company shall furnish to the Trustee:
(1) an Officers' Certificate in form and substance
reasonably satisfactory to the Trustee (which must include the
statements set forth in Section 13.05 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
(2) an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee (which must include the statements set
forth in Section 13.05 hereof) stating that, in the opinion of such
counsel, all such conditions precedent and covenants have been
satisfied.
Section 13.05 Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than a certificate
provided pursuant to TIA ss. 314(a)(4)) must comply with the provisions of TIA
ss. 314(e) and must include:
(1) a statement that the Person making such certificate or
opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such Person, he or
she has made such examination or investigation as is necessary to
enable him or her to express an informed opinion as to whether or not
such covenant or condition has been satisfied; and
(4) a statement as to whether or not, in the opinion of
such Person, such condition or covenant has been satisfied.
Section 13.06 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 13.07 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, will have any liability
for any obligations of the Company or the Guarantors under the Notes, this
Indenture, the Note Guarantees, the Security Agreement 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
84
waiver and release are part of the consideration for issuance of the Notes. The
waiver may not be effective to waive liabilities under the federal securities
laws.
Section 13.08 Governing Law.
THE INTERNAL LAW OF THE STATE OF NEW YORK WILL GOVERN AND BE USED TO
CONSTRUE THIS INDENTURE, THE NOTES AND THE NOTE GUARANTEES 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 13.09 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 13.10 Successors.
All agreements of the Company in this Indenture and the Notes will
bind its successors. All agreements of the Trustee in this Indenture will bind
its successors. All agreements of each Guarantor in this Indenture will bind its
successors, except as otherwise provided in Section 11.05 hereof.
Section 13.11 Severability.
In case any provision in this Indenture or in the Notes is invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions will not in any way be affected or impaired thereby.
Section 13.12 Counterpart Originals.
The parties may sign any number of copies of this Indenture. Each
signed copy will be an original, but all of them together represent the same
agreement.
Section 13.13 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 will in no
way modify or restrict any of the terms or provisions hereof.
[Signatures on following page]
85
SIGNATURES
----------
Dated as of January 6, 2005
IWO ESCROW COMPANY
By: /s/ Xxxxxxx Xxxxxx
----------------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Chief Financial Officer and Secretary
U.S. BANK NATIONAL ASSOCIATION
By: /s/ Xxxx-Xxxx Xxxxxxxxx
----------------------------------------------
Name: Xxxx-Xxxx Xxxxxxxxx
Title: Vice President
S-1
EXHIBIT A-1
Face of Note
SEE LEGENDS ON BACK OF NOTE
--------------------------------------------------------------------------------
CUSIP NO. ___________
SENIOR SECURED FLOATING RATE NOTES DUE 2012
No. _____ $___________
IWO ESCROW COMPANY
promises to pay to _________ or its registered assigns, the principal sum of
_________________ ($_________) on ___________.
Interest Payment Dates: __________ and _____________ of each year, commencing
_________.
Record Dates: ___________ and ________ of each year.
Date of Issuance: _____________
IWO ESCROW COMPANY
By:
------------------------------
Name:
Title:
This is one of the Notes referred to in the within-mentioned Indenture:
U.S. BANK NATIONAL ASSOCIATION, as Trustee
By:
------------------------------
Authorized Signatory
--------------------------------------------------------------------------------
A[1]-1
SENIOR SECURED FLOATING RATE NOTES DUE 2012
[Insert the Global Note Legend if applicable pursuant to
the provisions of the Indenture.]
[Insert the Private Placement Legend if applicable pursuant
to the provisions of the Indenture]
Capitalized terms used herein have the meanings assigned to
them in the Indenture referred to below unless
otherwise indicated.
(1) INTEREST. IWO ESCROW COMPANY, A DELAWARE CORPORATION (THE
"COMPANY"), PROMISES TO PAY INTEREST ON THE PRINCIPAL AMOUNT OF THIS
NOTE AT THE APPLICABLE EURODOLLAR RATE FROM ______ UNTIL MATURITY AND
SHALL PAY THE LIQUIDATED DAMAGES, IF ANY, PAYABLE PURSUANT TO SECTION
5 OF THE REGISTRATION RIGHTS AGREEMENT REFERRED TO BELOW. THE COMPANY
WILL PAY INTEREST AND LIQUIDATED DAMAGES, IF ANY, QUARTERLY IN
ARREARS ON JANUARY 15, APRIL 15, JULY 15 AND OCTOBER 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 WILL ACCRUE FROM THE MOST RECENT DATE TO WHICH INTEREST HAS
BEEN PAID OR, IF NO INTEREST HAS BEEN PAID, FROM THE DATE OF
ISSUANCE; PROVIDED THAT IF THERE IS NO EXISTING DEFAULT IN THE
PAYMENT OF INTEREST, AND IF THIS NOTE IS AUTHENTICATED BETWEEN A
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 __________. THE COMPANY WILL PAY
INTEREST (INCLUDING POST-PETITION INTEREST IN ANY PROCEEDING UNDER
ANY BANKRUPTCY LAW) 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 TO THE EXTENT LAWFUL; IT WILL PAY INTEREST
(INCLUDING POST-PETITION INTEREST IN ANY PROCEEDING UNDER ANY
BANKRUPTCY LAW) 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 WILL BE COMPUTED ON THE BASIS OF A 360-DAY YEAR OF TWELVE
30-DAY MONTHS.
(2) METHOD OF PAYMENT. THE COMPANY WILL 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 ________ IMMEDIATELY PRECEDING THE INTEREST PAYMENT DATE, EVEN IF
SUCH NOTES ARE CANCELED 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 WILL 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 THAT PAYMENT BY WIRE
TRANSFER OF IMMEDIATELY AVAILABLE FUNDS WILL 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 WILL
HAVE PROVIDED WIRE TRANSFER INSTRUCTIONS TO THE COMPANY OR THE PAYING
AGENT. SUCH PAYMENT WILL 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[1]-2
(3) PAYING AGENT AND REGISTRAR. INITIALLY, U.S. BANK NATIONAL
ASSOCIATION, THE TRUSTEE UNDER THE INDENTURE, WILL 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 AND SECURITY AGREEMENT. THE COMPANY ISSUED THE NOTES
UNDER AN INDENTURE DATED AS OF JANUARY 6, 2005 (THE "INDENTURE")
BETWEEN THE COMPANY 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 TIA. 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 SECURED
OBLIGATIONS OF THE COMPANY. THE NOTES ARE SECURED BY THE COLLATERAL
DESCRIBED IN THE SECURITY AGREEMENT REFERRED TO IN THE INDENTURE. THE
INDENTURE DOES NOT LIMIT THE AGGREGATE PRINCIPAL AMOUNT OF NOTES THAT
MAY BE ISSUED THEREUNDER.
(5) OPTIONAL REDEMPTION.
(a) Except as set forth in subparagraph (b) of this Paragraph 5 and
Paragraph 6, the Company will not have the option to redeem the Notes
prior to January 15, 2007. On or after January 15, 2007, the Company
will have the option to redeem all or a part of the Notes 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, on the
Notes redeemed, to the applicable redemption date, if redeemed during
the twelve-month period beginning on January 15 of the years
indicated below, subject to the rights of Holders on the relevant
record date to receive interest on the relevant interest payment
date:
Year Percentage
---- ----------
2007.......................................... 102.000%
2008.......................................... 101.000%
2009 and thereafter........................... 100.000%
Unless the Company defaults in the payment of the
redemption price, interest will cease to accrue on the Notes or portions thereof
called for redemption on the applicable redemption date.
(b) Notwithstanding the provisions of subparagraph (a) of this
Paragraph 5, at any time prior to January 15, 2007, the Company may
on any one or more occasions redeem up to 35% of the aggregate
principal amount of Notes issued under the Indenture at a redemption
price equal to 100% of the aggregate principal amount thereof plus a
premium equal to the Applicable Eurodollar Rate in effect on the date
on which notice of redemption is given, plus accrued and unpaid
interest and Liquidated Damages, if any, to the redemption date with
the net cash proceeds of a sale of Equity Interests (other than
Disqualified Stock) or a contribution to the common equity of the
Company; provided that at least 65% of the aggregate principal amount
of the Notes originally issued under the Indenture (excluding Notes
held by the Company and its Subsidiaries) remains outstanding
immediately after the occurrence of such redemption and that such
redemption occurs within 45 days of the date of the closing of such
sale of Equity Interests or contribution to the common equity of the
Company.
(6) SPECIAL REDEMPTIONS.
A[1]-3
(a) If prior to 5:00 pm New York time on May 4, 2005 (the
"Special Mandatory Redemption Date"), the Trustee has not received
from the Company an Officer's Certificate, in the form attached as
Exhibit A to the Escrow Agreement, the Trustee shall deliver to the
Escrow Agent a certificate in the form attached as Exhibit D to the
Escrow Agreement, and shall thereby cause the Escrow Agent to
distribute the Escrow Property in accordance with Section 1.4(e) of
the Escrow Agreement. The Trustee shall use the proceeds received
from the Escrow Agent, to the extent received, to redeem the Notes at
100% of the aggregate principal amount of the Notes plus accrued
interest to the date of such redemption. Upon the closing of the
Merger on or before the Special Mandatory Redemption Date, the
foregoing provisions of this Section (6)(a) shall be null and void.
(b) At anytime prior to the Special Mandatory Redemption
Date, the Company, with the consent of, or as instructed by, IWO
Holdings, Inc. may elect to redeem the Notes upon 10 days prior
notice to the Trustee. Promptly upon the receipt of such notice from
the Company, the Trustee shall provide written notice to the Escrow
Agent of the Company's determination, and shall thereby cause the
Escrow Agent to distribute the Escrow Property in accordance with
Section 1.4(f) of the Escrow Agreement. The Trustee shall use the
proceeds received from the Escrow Agent, to the extent received, to
redeem the Notes at 100% of the aggregate principal amount of the
Notes plus accrued interest to the date of such redemption. Upon the
closing of the Merger on or before the Special Mandatory Redemption
Date, the foregoing provisions of this Section (6)(b) shall be null
and void.
A[1]-4
(7) REPURCHASE AT THE OPTION OF HOLDER.
(a) If there is a Change of Control, each Holder of Notes
will have the right to require the Company to repurchase all or any
part (equal to $1,000 or an integral multiple of $1,000) of that
Holder's Notes pursuant to a Change of Control Offer to each Holder
to repurchase all or any part of each Holder's Notes at a purchase
price in cash equal to 101% of the aggregate principal amount thereof
plus accrued and unpaid interest and Liquidated Damages, if any,
thereon to the date of purchase, subject to the rights of Holders of
Notes on the relevant record date to receive interest due on the
relevant interest payment date (the "Change of Control Payment").
Within 10 days following any Change of Control, the Company will mail
a notice 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 of the
Company consummates any Asset Sale, within thirty days of each date
on which the aggregate amount of Excess Proceeds exceeds $10.0
million, the Company will commence an offer to all Holders of Notes
and all holders of other Indebtedness that is pari passu with the
Notes 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 to purchase the maximum principal
amount of Notes (including any Additional Notes) and such other pari
passu Indebtedness that may be purchased out of the Excess Proceeds
at an offer price in cash in an amount equal to 100% of the aggregate
principal amount of Notes repurchased plus accrued and unpaid
interest to the repurchase date plus accrued and unpaid Liquidated
Damages, if any, thereon to the date of purchase in accordance with
the procedures set forth in the Indenture. To the extent that the
aggregate amount of Notes (including any Additional Notes) and other
pari passu Indebtedness tendered pursuant to an Asset Sale Offer is
less than the Excess Proceeds, the Company (or such Restricted
Subsidiary) may use the remaining Excess Proceeds for any purpose not
otherwise prohibited by the Indenture. If the aggregate principal
amount of Notes and 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 pari passu Indebtedness to be
purchased on a pro rata basis. Holders of Notes that are the subject
of an offer to purchase will receive an Asset Sale Offer from the
Company prior to any related purchase date and may elect to have such
Notes purchased by completing the form entitled "Option of Holder to
Elect Purchase" attached to the Notes.
(8) NOTICE OF REDEMPTION. NOTICE OF REDEMPTION WILL 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,
EXCEPT THAT REDEMPTION NOTICES MAY BE MAILED MORE THAN 60 DAYS PRIOR
TO A REDEMPTION DATE IF THE NOTICE IS ISSUED IN CONNECTION WITH A
DEFEASANCE OF THE NOTES OR A SATISFACTION OR DISCHARGE OF THE
INDENTURE. 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.
A[1]-5
(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 OR THE NOTE GUARANTEES MAY BE AMENDED OR
SUPPLEMENTED WITH THE CONSENT OF THE HOLDERS OF AT LEAST A MAJORITY
IN AGGREGATE PRINCIPAL AMOUNT OF THE THEN OUTSTANDING NOTES INCLUDING
ADDITIONAL NOTES, IF ANY, VOTING AS A SINGLE CLASS, AND ANY EXISTING
DEFAULT OR EVENT OF DEFAULT OR COMPLIANCE WITH ANY PROVISION OF THE
INDENTURE OR THE NOTES OR THE NOTE GUARANTEES MAY BE WAIVED WITH THE
CONSENT OF THE HOLDERS OF A MAJORITY IN AGGREGATE PRINCIPAL AMOUNT OF
THE THEN OUTSTANDING NOTES INCLUDING ADDITIONAL NOTES, IF ANY, VOTING
AS A SINGLE CLASS. WITHOUT THE CONSENT OF ANY HOLDER OF A NOTE, THE
INDENTURE OR THE NOTES OR THE NOTE GUARANTEES 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, TO PROVIDE FOR THE ASSUMPTION OF THE COMPANY'S OR
A GUARANTOR'S OBLIGATIONS TO HOLDERS OF THE NOTES AND NOTE GUARANTEES
IN CASE OF A MERGER OR CONSOLIDATION, 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 UNDER THE
INDENTURE OF ANY SUCH HOLDER, TO COMPLY WITH THE REQUIREMENTS OF THE
SEC IN ORDER TO EFFECT OR MAINTAIN THE QUALIFICATION OF THE INDENTURE
UNDER THE TIA, TO CONFORM THE TEXT OF THE INDENTURE, THE SECURITY
AGREEMENT OR THE NOTES TO ANY PROVISION OF THE "DESCRIPTION OF SENIOR
SECURED NOTES" SECTION OF THE COMPANY'S OFFERING MEMORANDUM DATED
DECEMBER 14, 2004, RELATING TO THE INITIAL OFFERING OF THE NOTES, TO
THE EXTENT THAT SUCH PROVISION IN THAT "DESCRIPTION OF SENIOR SECURED
NOTES" WAS INTENDED TO BE A VERBATIM RECITATION OF A PROVISION OF THE
INDENTURE, THE NOTE GUARANTEES, THE SECURITY AGREEMENT OR THE NOTES;
TO PROVIDE FOR THE ISSUANCE OF ADDITIONAL NOTES IN ACCORDANCE WITH
THE LIMITATIONS SET FORTH IN THE INDENTURE; TO ADD ADDITIONAL ASSETS
AS COLLATERAL OR TO RELEASE COLLATERAL FROM THE LIENS SECURING
OBLIGATIONS TO THE EXTENT PERMITTED OR REQUIRED BY THE SECURITY
AGREEMENT OR THIS INDENTURE WITHOUT HOLDER CONSENT; OR TO ALLOW ANY
GUARANTOR TO EXECUTE A SUPPLEMENTAL INDENTURE TO THE INDENTURE AND/OR
A NOTE GUARANTEE WITH RESPECT TO THE NOTES.
(12) DEFAULTS AND REMEDIES. Events of Default include: (i) default
for 30 days in the payment when due of interest on, or Liquidated
Damages, if any, with respect to, the Notes; (ii) default in the
payment when due (at maturity, upon redemption or otherwise) of the
principal of, or premium, if any, on, the Notes; (iii) failure by the
Company or any of its Restricted Subsidiaries for 30 days to comply
with the provisions of Sections 4.07, 4.09, 4.10, 4.15 or 5.01 of the
Indenture; (iv) failure by the Company or any of its Restricted
Subsidiaries for 60 days after notice to the Company by the Trustee
or the Holders of at least 25% in aggregate principal amount of the
Notes then outstanding voting as a single class to comply with any of
the other agreements in this Indenture; (v) default under any
mortgage, indenture or instrument under which there may be issued or
A[1]-6
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: (a) is caused by a failure to pay principal of, or interest
or premium, if any, 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 (b) results in the acceleration of
such Indebtedness prior to its express maturity, and, in each case,
the 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; (vi) failure by the
Company or any of its Restricted Subsidiaries to pay final judgments
entered by a court or courts of competent jurisdiction aggregating in
excess of $5.0 million, which judgments are not paid, discharged or
stayed for a period of 60 days; (vii) default under any Indebtedness
(other than the Notes) that is secured by the Collateral, whether
such Indebtedness now exists or is created after the date hereof, if
that default: (a) is caused by a failure to pay principal of, or
interest or premium, if any, on, such Indebtedness prior to the
expiration of the grace period provided in such Indebtedness on the
date of such default; (b) results in the acceleration of such
Indebtedness prior to its express maturity; or (c) otherwise entitles
the Collateral Trustee, without the consent of the Holders of the
Notes, to foreclose upon, collect or otherwise enforce its security
interests thereunder; (viii) failure by the Company to comply with
any material term of the Escrow Agreement that is not cured within 10
days; (ix) the Escrow Agreement, the Security Agreement, or any other
Security Document, or any Lien purported to be granted thereby, on
the Escrow Property or the Collateral is held in any judicial
proceeding to be unenforceable or invalid, in whole or in part, or
ceases for any reason (other than pursuant to a release that is
delivered or becomes effective under the terms of the Indenture or,
in the case of the Escrow Property, pursuant to the terms of the
Escrow Agreement) to be fully enforceable and perfected; (x) except
as permitted by the Indenture, any Note Guarantee 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; (xi) other than the
Reorganization, the Company or any of its Restricted Subsidiaries
that is a Significant Subsidiary or any group of Restricted
Subsidiaries of the Company that, taken together, would constitute a
Significant Subsidiary, pursuant to or within the meaning of
Bankruptcy Law: (a) commences a voluntary case, (b)consents to the
entry of an order for relief against it in an involuntary case,(c)
consents to the appointment of a custodian of it or for all or
substantially all of its property, (d) makes a general assignment for
the benefit of its creditors, or (e) generally is not paying its
debts as they become due; (xii) a court of competent jurisdiction
enters an order or decree under any Bankruptcy Law that: (a) is for
relief against the Company or any of its Restricted Subsidiaries that
is a Significant Subsidiary or any group of Restricted Subsidiaries
of the Company that, taken together, would constitute a Significant
Subsidiary, in an involuntary case; (b) appoints a custodian of the
Company or any of its Restricted Subsidiaries that is a Significant
Subsidiary or any group of Restricted Subsidiaries of the Company
that, taken together, would constitute a Significant Subsidiary, or
for all or substantially all of the property of the Company or any of
its Restricted Subsidiaries that is a Significant Subsidiary or any
group of Restricted Subsidiaries of the Company that, taken together,
would constitute a Significant Subsidiary; or (c) orders the
liquidation of the Company or any of its Restricted Subsidiaries that
is a Significant Subsidiary or any group of Restricted Subsidiaries
of the Company that, taken together, would constitute a Significant
Subsidiary; and the order or decree remains unstayed and in effect
for 60 consecutive days; or (xiii) (a) except as set forth in clause
(b) below, breach by the Company or any of its Restricted
Subsidiaries of any representation or warranty or agreement in the
Security Agreement, which breach remains uncured for five Business
Days after notice to the Company by the Trustee or the Holders of at
A[1]-7
least 25% in aggregate principal amount of the Notes then outstanding
voting as a single class, (b) breach by the Company or any of its
Restricted Subsidiaries of any representation or warranty or
agreement in the Security Agreement relating to the validity,
perfection or priority of the security interest granted in the
Collateral, which breach remains uncured for five Business Days after
any Officer has knowledge thereof, (c) the repudiation by the Company
or any of its Restricted Subsidiaries of any of its obligations under
the Security Agreement or (d) the unenforceability of the Security
Agreement against the Company or any of its Restricted Subsidiaries
for any reason. If any Event of Default occurs and is continuing, the
Trustee or the Holders of at least 25% in aggregate principal amount
of the then outstanding Notes may declare all the Notes to be due and
payable immediately. Notwithstanding the foregoing, in the case of an
Event of Default arising from certain events of bankruptcy or
insolvency, all outstanding Notes will become due and payable
immediately 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 or premium or Liquidated Damages, if any,)
if it determines that withholding notice is in their interest. The
Holders of a majority in aggregate principal amount of the then
outstanding Notes by notice to the Trustee may, on behalf of the
Holders of all of the Notes, rescind an acceleration or 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 or premium or Liquidated Damages, if any, 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. A DIRECTOR, OFFICER, EMPLOYEE,
INCORPORATOR OR STOCKHOLDER OF THE COMPANY OR ANY OF THE GUARANTORS,
AS SUCH, WILL NOT HAVE ANY LIABILITY FOR ANY OBLIGATIONS OF THE
COMPANY OR THE GUARANTORS UNDER THE NOTES, THE NOTE GUARANTEES 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.
(15) AUTHENTICATION. THIS NOTE WILL 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 (= 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).
A[1]-8
(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 WILL HAVE ALL THE RIGHTS SET
FORTH IN THE REGISTRATION RIGHTS AGREEMENT DATED AS OF JANUARY 6,
2005, AMONG THE COMPANY AND THE OTHER PARTIES NAMED ON THE SIGNATURE
PAGES THEREOF OR, IN THE CASE OF ADDITIONAL NOTES, HOLDERS OF
RESTRICTED GLOBAL NOTES AND RESTRICTED DEFINITIVE NOTES WILL HAVE THE
RIGHTS SET FORTH IN ONE OR MORE REGISTRATION RIGHTS AGREEMENTS, IF
ANY, AMONG THE COMPANY AND THE OTHER PARTIES THERETO, RELATING TO
RIGHTS GIVEN BY THE COMPANY TO THE PURCHASERS OF ANY ADDITIONAL NOTES
(COLLECTIVELY, 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.
(19) GOVERNING LAW. THE INTERNAL LAW OF THE STATE OF NEW YORK WILL
GOVERN AND BE USED TO CONSTRUE THE INDENTURE, THIS NOTE AND THE NOTE
GUARANTEES WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF
CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF
ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
The Company will furnish to any Holder upon written request
and without charge a copy of the Indenture and/or the Registration Rights
Agreement. Requests may be made to:
IWO ESCROW COMPANY
000 Xxxxxxxxx Xxxxxx
Xxxxx, XX 00000-2909
Attention: Xxxxxxx Xxxxxx
A[1]-9
ASSIGNMENT FORM
To assign this Note, fill in the form below:
(I) or (we) assign and transfer this Note to:
----------------------------------
(Insert assignee's legal name)
--------------------------------------------------------------------------------
(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*: _________________________
* Participant in a recognized Signature Guarantee Medallion Program (or
other signature guarantor acceptable to the Trustee).
A[1]-10
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 4.15 of the
Indenture, check the appropriate box below:
-- Section 4.10 -- Section 4.15
If you want to elect to have only part of the Note
purchased by the Company pursuant to Section 4.10 or Section
4.15 of the Indenture, state the amount you elect to have purchased:
$---------------
Date: _______________
Your Signature:
------------------------------
(Sign exactly as your name appears
on the face of this Note)
Tax Identification No.:
-----------------------
Signature Guarantee*: _________________________
* Participant in a recognized Signature Guarantee Medallion Program (or
other signature guarantor acceptable to the Trustee).
A[1]-11
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE *
The following exchanges of a part of this Global Note for
an interest in another Global Note or for a Definitive
Note, or exchanges of a part of another Global Note or Definitive Note for an
interest in this Global Note, have been made:
Principal Xxxxxx
Xxxxxx of decrease in Amount of increase in of this Global Note Signature of authorized
Principal Amount of Principal Amount of following such decrease officer of Trustee or
Date of Exchange this Global Note this Global Note (or increase) Custodian
---------------- ---------------- ---------------- ------------- ---------
* This schedule should be included only if the Note is issued in global form.
A[1]-12
EXHIBIT A-2
FACE OF REGULATION S TEMPORARY GLOBAL NOTE
--------------------------------------------------------------------------------
SEE LEGENDS ON BACK OF NOTE
--------------------------------------------------------------------------------
CUSIP NO. _________
SENIOR SECURED FLOATING RATE NOTES DUE 2012
No. ________ $_______
IWO ESCROW COMPANY
promises to pay ______ or its registered assigns, the principal sum of _______
($____) on ________.
Interest Payment Dates: ______ and _______ of each year, commencing _____.
Record Dates: __________ and _________ of each year.
Date of Issuance: ________
IWO ESCROW COMPANY
By:
--------------------------------
Name:
Title:
This is one of the Notes referred to
in the within-mentioned Indenture:
U.S. BANK NATIONAL ASSOCIATION, as Trustee
By:
----------------------------------------------------
Authorized Signatory
--------------------------------------------------------------------------------
A2-1
SENIOR SECURED FLOATING RATE NOTES DUE 2012
THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL NOTE, AND THE
CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR CERTIFICATED NOTES, ARE AS
SPECIFIED IN THE INDENTURE (AS DEFINED HEREIN). NEITHER THE HOLDER NOR THE
BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY GLOBAL NOTE SHALL BE ENTITLED
TO RECEIVE PAYMENT OF INTEREST HEREON.
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 (1) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED
PURSUANT TO SECTION 2.06 OF THE INDENTURE, (2) THIS GLOBAL NOTE MAY BE EXCHANGED
IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(a) OF THE INDENTURE, (3) THIS
GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION
2.11 OF THE INDENTURE AND (4) 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 (00 XXXXX XXXXXX, XXX XXXX, XXX XXXX) ("DTC"), TO THE COMPANY OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS MAY BE
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THE SECURITY (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A
TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND THE SECURITY
EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE
ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH
PURCHASER OF THE SECURITY EVIDENCED HEREBY IS HEREBY NOTIFIED THAT THE SELLER
MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE
SECURITIES ACT PROVIDED BY RULE 144A. THE HOLDER OF THE SECURITY EVIDENCED
HEREBY AGREES FOR THE BENEFIT OF THE ISSUER THAT (A) SUCH SECURITY MAY BE
OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY (1) (a) IN THE UNITED
STATES TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (b) OUTSIDE THE UNITED STATES
A2-2
IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 904 UNDER THE SECURITIES ACT,
(c) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144 UNDER THE SECURITIES
ACT OR (d) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT (AND BASED UPON AN OPINION OF COUNSEL IF THE
ISSUER SO REQUESTS), (2) TO THE ISSUER OR (3) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE
SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE
JURISDICTION AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO,
NOTIFY ANY PURCHASER FROM IT OF THE SECURITY EVIDENCED HEREBY OF THE RESALE
RESTRICTIONS SET FORTH IN (A) ABOVE.
Capitalized terms used herein have the meanings assigned to
them in the Indenture referred to below unless otherwise indicated.
(1) INTEREST. IWO ESCROW COMPANY, A DELAWARE CORPORATION (THE
"COMPANY"), PROMISES TO PAY INTEREST ON THE PRINCIPAL AMOUNT OF THIS
NOTE AT THE APPLICABLE EURODOLLAR RATE FROM JANUARY 6, 2005 UNTIL
MATURITY AND SHALL PAY THE LIQUIDATED DAMAGES, IF ANY, PAYABLE
PURSUANT TO SECTION 5 OF THE REGISTRATION RIGHTS AGREEMENT REFERRED
TO BELOW. THE COMPANY WILL PAY INTEREST AND LIQUIDATED DAMAGES, IF
ANY, QUARTERLY IN ARREARS ON _________ 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 WILL ACCRUE FROM
THE MOST RECENT DATE TO WHICH INTEREST HAS BEEN PAID OR, IF NO
INTEREST HAS BEEN PAID, FROM THE DATE OF ISSUANCE; PROVIDED THAT IF
THERE IS NO EXISTING DEFAULT IN THE PAYMENT OF INTEREST, AND IF THIS
NOTE IS AUTHENTICATED BETWEEN A 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 __________. THE
COMPANY WILL PAY INTEREST (INCLUDING POST-PETITION INTEREST IN ANY
PROCEEDING UNDER ANY BANKRUPTCY LAW) 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 TO THE EXTENT LAWFUL; IT
WILL PAY INTEREST (INCLUDING POST-PETITION INTEREST IN ANY PROCEEDING
UNDER ANY BANKRUPTCY LAW) 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 WILL BE COMPUTED ON THE BASIS OF A 360-DAY YEAR OF
TWELVE 30-DAY MONTHS.
Until this Regulation S Temporary Global Note is exchanged
for one or more Regulation S Permanent Global Notes, the Holder hereof shall not
be entitled to receive payments of interest hereon; until so exchanged in full,
this Regulation S Temporary Global Note shall in all other respects be entitled
to the same benefits as other Notes under the Indenture.
A2-3
(2) METHOD OF PAYMENT. THE COMPANY WILL 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 ______________ IMMEDIATELY PRECEDING THE INTEREST PAYMENT DATE,
EVEN IF SUCH NOTES ARE CANCELED 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 WILL
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 THAT PAYMENT
BY WIRE TRANSFER OF IMMEDIATELY AVAILABLE FUNDS WILL 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
WILL HAVE PROVIDED WIRE TRANSFER INSTRUCTIONS TO THE COMPANY OR THE
PAYING AGENT. SUCH PAYMENT WILL 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.
(3) PAYING AGENT AND REGISTRAR. INITIALLY, U.S. BANK NATIONAL
ASSOCIATION, THE TRUSTEE UNDER THE INDENTURE, WILL 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 AND SECURITY AGREEMENT. THE COMPANY ISSUED THE NOTES
UNDER AN INDENTURE DATED AS OF JANUARY 6, 2005 (THE "INDENTURE")
BETWEEN THE COMPANY 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 TIA. 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 SECURED
OBLIGATIONS OF THE COMPANY. THE NOTES ARE SECURED BY THE COLLATERAL
DESCRIBED IN THE SECURITY AGREEMENT REFERRED TO IN THE INDENTURE. THE
INDENTURE DOES NOT LIMIT THE AGGREGATE PRINCIPAL AMOUNT OF NOTES THAT
MAY BE ISSUED THEREUNDER.
(5) Optional Redemption
(a) Except as set forth in subparagraph (b) of this Paragraph 5 and
Paragraph 6, the Company will not have the option to redeem the Notes
prior to January 15, 2007. On or after January 15, 2007, the Company
will have the option to redeem all or a part of the Notes 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, on the
Notes redeemed, to the applicable redemption date, if redeemed during
the twelve-month period beginning on January 15 of the years
indicated below, subject to the rights of Holders on the relevant
record date to receive interest on the relevant interest payment
date:
Year Percentage
---- ----------
2007................................................ 102.000%
2008................................................ 101.000%
2009 and thereafter................................. 100.000%
Unless the Company defaults in the payment of the
redemption price, interest will cease to accrue on the Notes or portions thereof
called for redemption on the applicable redemption date.
A2-4
(b) Notwithstanding the provisions of subparagraph (a) of this
Paragraph 5, at any time prior to January 15, 2007, the Company may
on any one or more occasions redeem up to 35% of the aggregate
principal amount of Notes issued under the Indenture at a redemption
price equal to 100% of the aggregate principal amount thereof plus a
premium equal to the Applicable Eurodollar Rate in effect on the date
on which notice of redemption is given, plus accrued and unpaid
interest and Liquidated Damages, if any, to the redemption date with
the net cash proceeds of a sale of Equity Interests (other than
Disqualified Stock) or a contribution to the common equity of the
Company; provided that at least 65% of the aggregate principal amount
of the Notes originally issued under the Indenture (excluding Notes
held by the Company and its Subsidiaries) remains outstanding
immediately after the occurrence of such redemption and that such
redemption occurs within 45 days of the date of the closing of such
sale of Equity Interests or contribution to the common equity of the
Company.
(6) SPECIAL REDEMPTIONS.
(a) If prior to 5:00 pm New York time on May 4, 2005 (the
"Special Mandatory Redemption Date"), the Trustee has not received
from the Company an Officer's Certificate, in the form attached as
Exhibit A to the Escrow Agreement, the Trustee shall deliver to the
Escrow Agent a certificate in the form attached as Exhibit D to the
Escrow Agreement, and shall thereby cause the Escrow Agent to
distribute the Escrow Property in accordance with Section 1.4(e) of
the Escrow Agreement. The Trustee shall use the proceeds received
from the Escrow Agent, to the extent received, to redeem the Notes at
100% of the aggregate principal amount of the Notes plus accrued
interest to the date of such redemption. Upon the closing of the
Merger on or before the Special Mandatory Redemption Date, the
foregoing provisions of this Section (6)(a) shall be null and void.
(b) At any time prior to the Special Mandatory Redemption
Date, the Company, with the consent of, or as instructed by, IWO
Holdings, Inc. may elect to redeem the Notes upon 10 days prior
notice to the Trustee. Promptly upon the receipt of such notice from
the Company, the Trustee shall provide written notice to the Escrow
Agent of the Company's determination, and shall thereby cause the
Escrow Agent to distribute the Escrow Property in accordance with
Section 1.4(f) of the Escrow Agreement. The Trustee shall use the
proceeds received from the Escrow Agent, to the extent received, to
redeem the Notes at 100% of the aggregate principal amount of the
Notes plus accrued interest to the date of such redemption. Upon the
closing of the Merger on or before the Special Mandatory Redemption
Date, the foregoing provisions of this Section (6)(b) shall be null
and void.
(7) REPURCHASE AT THE OPTION OF HOLDER.
A2-5
(a) If there is a Change of Control, each Holder of Notes
will have the right to require the Company to repurchase all or any
part (equal to $1,000 or an integral multiple of $1,000) of that
Holder's Notes pursuant to a Change of Control Offer to each Holder
to repurchase all or any part of each Holder's Notes at a purchase
price in cash equal to 101% of the aggregate principal amount thereof
plus accrued and unpaid interest and Liquidated Damages, if any,
thereon to the date of purchase, subject to the rights of Holders of
Notes on the relevant record date to receive interest due on the
relevant interest payment date (the "Change of Control Payment").
Within 10 days following any Change of Control, the Company will mail
a notice 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 of the
Company consummates any Asset Sale, within thirty days of each date
on which the aggregate amount of Excess Proceeds exceeds $10.0
million, the Company will commence an offer to all Holders of Notes
and all holders of other Indebtedness that is pari passu with the
Notes 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 to purchase the maximum principal
amount of Notes (including any Additional Notes) and such other pari
passu Indebtedness that may be purchased out of the Excess Proceeds
at an offer price in cash in an amount equal to 100% of the aggregate
principal amount of Notes repurchased plus accrued and unpaid
interest to the repurchase date plus accrued and unpaid Liquidated
Damages, if any, thereon to the date of purchase in accordance with
the procedures set forth in the Indenture. To the extent that the
aggregate amount of Notes (including any Additional Notes) and other
pari passu Indebtedness tendered pursuant to an Asset Sale Offer is
less than the Excess Proceeds, the Company (or such Restricted
Subsidiary) may use the remaining Excess Proceeds for any purpose not
otherwise prohibited by the Indenture. If the aggregate principal
amount of Notes and 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 pari passu Indebtedness to be
purchased on a pro rata basis. Holders of Notes that are the subject
of an offer to purchase will receive an Asset Sale Offer from the
Company prior to any related purchase date and may elect to have such
Notes purchased by completing the form entitled "Option of Holder to
Elect Purchase" attached to the Notes.
(8) NOTICE OF REDEMPTION. NOTICE OF REDEMPTION WILL 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,
EXCEPT THAT REDEMPTION NOTICES MAY BE MAILED MORE THAN 60 DAYS PRIOR
TO A REDEMPTION DATE IF THE NOTICE IS ISSUED IN CONNECTION WITH A
DEFEASANCE OF THE NOTES OR A SATISFACTION OR DISCHARGE OF THE
INDENTURE. 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.
A2-6
(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.
This Regulation S Temporary Global Note is exchangeable in
whole or in part for one or more Global Notes only (i) on or after the
termination of the 40-day distribution compliance period (as defined in
Regulation S) and (ii) upon presentation of certificates (accompanied by an
Opinion of Counsel, if applicable) required by Article 2 of the Indenture. Upon
exchange of this Regulation S Temporary Global Note for one or more Global
Notes, the Trustee shall cancel this Regulation S Temporary Global Note.
(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 OR THE NOTE GUARANTEES MAY BE AMENDED OR
SUPPLEMENTED WITH THE CONSENT OF THE HOLDERS OF AT LEAST A MAJORITY
IN AGGREGATE PRINCIPAL AMOUNT OF THE THEN OUTSTANDING NOTES INCLUDING
ADDITIONAL NOTES, IF ANY, VOTING AS A SINGLE CLASS, AND ANY EXISTING
DEFAULT OR EVENT OF DEFAULT OR COMPLIANCE WITH ANY PROVISION OF THE
INDENTURE OR THE NOTES OR THE NOTE GUARANTEES MAY BE WAIVED WITH THE
CONSENT OF THE HOLDERS OF A MAJORITY IN AGGREGATE PRINCIPAL AMOUNT OF
THE THEN OUTSTANDING NOTES INCLUDING ADDITIONAL NOTES, IF ANY, VOTING
AS A SINGLE CLASS. WITHOUT THE CONSENT OF ANY HOLDER OF A NOTE, THE
INDENTURE OR THE NOTES OR THE NOTE GUARANTEES 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, TO PROVIDE FOR THE ASSUMPTION OF THE COMPANY'S OR
A GUARANTOR'S OBLIGATIONS TO HOLDERS OF THE NOTES AND NOTE GUARANTEES
IN CASE OF A MERGER OR CONSOLIDATION, 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 UNDER THE
INDENTURE OF ANY SUCH HOLDER, TO COMPLY WITH THE REQUIREMENTS OF THE
SEC IN ORDER TO EFFECT OR MAINTAIN THE QUALIFICATION OF THE INDENTURE
UNDER THE TIA, TO CONFORM THE TEXT OF THE INDENTURE, THE SECURITY
AGREEMENT OR THE NOTES TO ANY PROVISION OF THE "DESCRIPTION OF SENIOR
SECURED NOTES" SECTION OF THE COMPANY'S OFFERING MEMORANDUM DATED
DECEMBER 14, 2004, RELATING TO THE INITIAL OFFERING OF THE NOTES, TO
THE EXTENT THAT SUCH PROVISION IN THAT "DESCRIPTION OF SENIOR SECURED
NOTES" WAS INTENDED TO BE A VERBATIM RECITATION OF A PROVISION OF THE
INDENTURE, THE NOTE GUARANTEES, THE SECURITY AGREEMENT OR THE NOTES;
TO PROVIDE FOR THE ISSUANCE OF ADDITIONAL NOTES IN ACCORDANCE WITH
THE LIMITATIONS SET FORTH IN THE INDENTURE; TO ADD ADDITIONAL ASSETS
AS COLLATERAL OR TO RELEASE COLLATERAL FROM THE LIENS SECURING
OBLIGATIONS TO THE EXTENT PERMITTED OR REQUIRED BY THE SECURITY
AGREEMENT OR THIS INDENTURE WITHOUT HOLDER CONSENT; OR TO ALLOW ANY
GUARANTOR TO EXECUTE A SUPPLEMENTAL INDENTURE TO THE INDENTURE AND/OR
A NOTE GUARANTEE WITH RESPECT TO THE NOTES.
A2-7
(12) DEFAULTS AND REMEDIES. EVENTS OF DEFAULT INCLUDE: (I) DEFAULT
FOR 30 DAYS IN THE PAYMENT WHEN DUE OF INTEREST ON, OR LIQUIDATED
DAMAGES, IF ANY, WITH RESPECT TO, THE NOTES; (II) DEFAULT IN THE
PAYMENT WHEN DUE (AT MATURITY, UPON REDEMPTION OR OTHERWISE) OF THE
PRINCIPAL OF, OR PREMIUM, IF ANY, ON, THE NOTES; (III) FAILURE BY THE
COMPANY OR ANY OF ITS RESTRICTED SUBSIDIARIES FOR 30 DAYS TO COMPLY
WITH THE PROVISIONS OF SECTIONS 4.07, 4.09, 4.10, 4.15 OR 5.01 OF THE
INDENTURE; (IV) FAILURE BY THE COMPANY OR ANY OF ITS RESTRICTED
SUBSIDIARIES FOR 60 DAYS AFTER NOTICE TO THE COMPANY BY THE TRUSTEE
OR THE HOLDERS OF AT LEAST 25% IN AGGREGATE PRINCIPAL AMOUNT OF THE
NOTES THEN OUTSTANDING VOTING AS A SINGLE CLASS TO COMPLY WITH ANY OF
THE OTHER AGREEMENTS IN THIS INDENTURE; (V) 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: (A) IS CAUSED BY A FAILURE TO PAY PRINCIPAL OF, OR INTEREST
OR PREMIUM, IF ANY, 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 (B) RESULTS IN THE ACCELERATION OF
SUCH INDEBTEDNESS PRIOR TO ITS EXPRESS MATURITY, AND, IN EACH CASE,
THE 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; (VI) FAILURE BY THE
COMPANY OR ANY OF ITS RESTRICTED SUBSIDIARIES TO PAY FINAL JUDGMENTS
ENTERED BY A COURT OR COURTS OF COMPETENT JURISDICTION AGGREGATING IN
EXCESS OF $5.0 MILLION, WHICH JUDGMENTS ARE NOT PAID, DISCHARGED OR
STAYED FOR A PERIOD OF 60 DAYS; (VII) DEFAULT UNDER ANY INDEBTEDNESS
(OTHER THAN THE NOTES) THAT IS SECURED BY THE COLLATERAL, WHETHER
SUCH INDEBTEDNESS NOW EXISTS OR IS CREATED AFTER THE DATE HEREOF, IF
THAT DEFAULT: (A) IS CAUSED BY A FAILURE TO PAY PRINCIPAL OF, OR
INTEREST OR PREMIUM, IF ANY, ON, SUCH INDEBTEDNESS PRIOR TO THE
EXPIRATION OF THE GRACE PERIOD PROVIDED IN SUCH INDEBTEDNESS ON THE
DATE OF SUCH DEFAULT; (B) RESULTS IN THE ACCELERATION OF SUCH
INDEBTEDNESS PRIOR TO ITS EXPRESS MATURITY; OR (C) OTHERWISE ENTITLES
THE COLLATERAL TRUSTEE, WITHOUT THE CONSENT OF THE HOLDERS OF THE
NOTES, TO FORECLOSE UPON, COLLECT OR OTHERWISE ENFORCE ITS SECURITY
INTERESTS THEREUNDER; (VIII) FAILURE BY THE COMPANY TO COMPLY WITH
ANY MATERIAL TERM OF THE ESCROW AGREEMENT THAT IS NOT CURED WITHIN 10
DAYS; (IX) THE ESCROW AGREEMENT, THE SECURITY AGREEMENT, OR ANY OTHER
SECURITY DOCUMENT, OR ANY LIEN PURPORTED TO BE GRANTED THEREBY, ON
THE ESCROW PROPERTY OR THE COLLATERAL IS HELD IN ANY JUDICIAL
PROCEEDING TO BE UNENFORCEABLE OR INVALID, IN WHOLE OR IN PART, OR
CEASES FOR ANY REASON (OTHER THAN PURSUANT TO A RELEASE THAT IS
DELIVERED OR BECOMES EFFECTIVE UNDER THE TERMS OF THE INDENTURE OR,
IN THE CASE OF THE ESCROW PROPERTY, PURSUANT TO THE TERMS OF THE
ESCROW AGREEMENT) TO BE FULLY ENFORCEABLE AND PERFECTED; (X) EXCEPT
AS PERMITTED BY THE INDENTURE, ANY NOTE GUARANTEE 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; (XI) OTHER THAN THE
REORGANIZATION, THE COMPANY OR ANY OF ITS RESTRICTED SUBSIDIARIES
THAT IS A SIGNIFICANT SUBSIDIARY OR ANY GROUP OF RESTRICTED
SUBSIDIARIES OF THE COMPANY THAT, TAKEN TOGETHER, WOULD CONSTITUTE A
SIGNIFICANT SUBSIDIARY, PURSUANT TO OR WITHIN THE MEANING OF
BANKRUPTCY LAW: (A) COMMENCES A VOLUNTARY CASE, (B)CONSENTS TO THE
ENTRY OF AN ORDER FOR RELIEF AGAINST IT IN AN INVOLUNTARY CASE,(C)
CONSENTS TO THE APPOINTMENT OF A CUSTODIAN OF IT OR FOR ALL OR
SUBSTANTIALLY ALL OF ITS PROPERTY, (D) MAKES A GENERAL ASSIGNMENT FOR
THE BENEFIT OF ITS CREDITORS, OR (E) GENERALLY IS NOT PAYING ITS
DEBTS AS THEY BECOME DUE; (XII) A COURT OF COMPETENT JURISDICTION
ENTERS AN ORDER OR DECREE UNDER ANY BANKRUPTCY LAW THAT: (A) IS FOR
RELIEF AGAINST THE COMPANY OR ANY OF ITS RESTRICTED SUBSIDIARIES THAT
IS A SIGNIFICANT SUBSIDIARY OR ANY GROUP OF RESTRICTED SUBSIDIARIES
OF THE COMPANY THAT, TAKEN TOGETHER, WOULD CONSTITUTE A SIGNIFICANT
A2-8
SUBSIDIARY, IN AN INVOLUNTARY CASE; (B) APPOINTS A CUSTODIAN OF THE
COMPANY OR ANY OF ITS RESTRICTED SUBSIDIARIES THAT IS A SIGNIFICANT
SUBSIDIARY OR ANY GROUP OF RESTRICTED SUBSIDIARIES OF THE COMPANY
THAT, TAKEN TOGETHER, WOULD CONSTITUTE A SIGNIFICANT SUBSIDIARY, OR
FOR ALL OR SUBSTANTIALLY ALL OF THE PROPERTY OF THE COMPANY OR ANY OF
ITS RESTRICTED SUBSIDIARIES THAT IS A SIGNIFICANT SUBSIDIARY OR ANY
GROUP OF RESTRICTED SUBSIDIARIES OF THE COMPANY THAT, TAKEN TOGETHER,
WOULD CONSTITUTE A SIGNIFICANT SUBSIDIARY; OR (C) ORDERS THE
LIQUIDATION OF THE COMPANY OR ANY OF ITS RESTRICTED SUBSIDIARIES THAT
IS A SIGNIFICANT SUBSIDIARY OR ANY GROUP OF RESTRICTED SUBSIDIARIES
OF THE COMPANY THAT, TAKEN TOGETHER, WOULD CONSTITUTE A SIGNIFICANT
SUBSIDIARY; AND THE ORDER OR DECREE REMAINS UNSTAYED AND IN EFFECT
FOR 60 CONSECUTIVE DAYS; OR (XIII) (A) EXCEPT AS SET FORTH IN CLAUSE
(B) BELOW, BREACH BY THE COMPANY OR ANY OF ITS RESTRICTED
SUBSIDIARIES OF ANY REPRESENTATION OR WARRANTY OR AGREEMENT IN THE
SECURITY AGREEMENT, WHICH BREACH REMAINS UNCURED FOR FIVE BUSINESS
DAYS AFTER NOTICE TO THE COMPANY BY THE TRUSTEE OR THE HOLDERS OF AT
LEAST 25% IN AGGREGATE PRINCIPAL AMOUNT OF THE NOTES THEN OUTSTANDING
VOTING AS A SINGLE CLASS, (B) BREACH BY THE COMPANY OR ANY OF ITS
RESTRICTED SUBSIDIARIES OF ANY REPRESENTATION OR WARRANTY OR
AGREEMENT IN THE SECURITY AGREEMENT RELATING TO THE VALIDITY,
PERFECTION OR PRIORITY OF THE SECURITY INTEREST GRANTED IN THE
COLLATERAL, WHICH BREACH REMAINS UNCURED FOR FIVE BUSINESS DAYS AFTER
ANY OFFICER HAS KNOWLEDGE THEREOF, (C) THE REPUDIATION BY THE COMPANY
OR ANY OF ITS RESTRICTED SUBSIDIARIES OF ANY OF ITS OBLIGATIONS UNDER
THE SECURITY AGREEMENT OR (D) THE UNENFORCEABILITY OF THE SECURITY
AGREEMENT AGAINST THE COMPANY OR ANY OF ITS RESTRICTED SUBSIDIARIES
FOR ANY REASON. IF ANY EVENT OF DEFAULT OCCURS AND IS CONTINUING, THE
TRUSTEE OR THE HOLDERS OF AT LEAST 25% IN AGGREGATE PRINCIPAL AMOUNT
OF THE THEN OUTSTANDING NOTES MAY DECLARE ALL THE NOTES TO BE DUE AND
PAYABLE IMMEDIATELY. NOTWITHSTANDING THE FOREGOING, IN THE CASE OF AN
EVENT OF DEFAULT ARISING FROM CERTAIN EVENTS OF BANKRUPTCY OR
INSOLVENCY, ALL OUTSTANDING NOTES WILL BECOME DUE AND PAYABLE
IMMEDIATELY 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 OR PREMIUM OR LIQUIDATED DAMAGES, IF ANY,)
IF IT DETERMINES THAT WITHHOLDING NOTICE IS IN THEIR INTEREST. THE
HOLDERS OF A MAJORITY IN AGGREGATE PRINCIPAL AMOUNT OF THE THEN
OUTSTANDING NOTES BY NOTICE TO THE TRUSTEE MAY, ON BEHALF OF THE
HOLDERS OF ALL OF THE NOTES, RESCIND AN ACCELERATION OR 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 OR PREMIUM OR LIQUIDATED DAMAGES, IF ANY, 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.
A2-9
(14) NO RECOURSE AGAINST OTHERS. A DIRECTOR, OFFICER, EMPLOYEE,
INCORPORATOR OR STOCKHOLDER OF THE COMPANY OR ANY OF THE GUARANTORS,
AS SUCH, WILL NOT HAVE ANY LIABILITY FOR ANY OBLIGATIONS OF THE
COMPANY OR THE GUARANTORS UNDER THE NOTES, THE NOTE GUARANTEES 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.
(15) AUTHENTICATION. THIS NOTE WILL 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 (= 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. IN ADDITION TO THE RIGHTS PROVIDED
TO HOLDERS OF NOTES UNDER THE INDENTURE, HOLDERS OF THIS REGULATION S
TEMPORARY GLOBAL NOTE WILL HAVE ALL THE RIGHTS SET FORTH IN THE
REGISTRATION RIGHTS AGREEMENT DATED AS OF DECEMBER 14, 2004, BETWEEN
THE COMPANY AND THE OTHER PARTIES NAMED ON THE SIGNATURE PAGES
THEREOF OR, IN THE CASE OF ADDITIONAL NOTES, HOLDERS THEREOF WILL
HAVE THE RIGHTS SET FORTH IN ONE OR MORE REGISTRATION RIGHTS
AGREEMENTS, IF ANY, BETWEEN THE COMPANY AND THE OTHER PARTIES
THERETO, RELATING TO RIGHTS GIVEN BY THE COMPANY TO THE PURCHASERS OF
ANY ADDITIONAL NOTES (COLLECTIVELY, 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.
(19) GOVERNING LAW. THE INTERNAL LAW OF THE STATE OF NEW YORK WILL
GOVERN AND BE USED TO CONSTRUE THE INDENTURE, THIS NOTE AND THE NOTE
GUARANTEES WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF
CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF
ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
The Company will furnish to any Holder upon written request
and without charge a copy of the Indenture and/or the Registration Rights
Agreement. Requests may be made to:
IWO ESCROW COMPANY
000 Xxxxxxxxx Xxxxxx
Xxxxx, XX 00000-2909
Attention: Xxxxxxx Xxxxxx
A2-10
ASSIGNMENT FORM
To assign this Note, fill in the form below:
(I) or (we) assign and transfer this Note to:
----------------------------------
(Insert assignee's legal name)
--------------------------------------------------------------------------------
(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*: _________________________
* Participant in a recognized Signature Guarantee Medallion Program (or
other signature guarantor acceptable to the Trustee).
A2-11
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 4.15 of the Indenture, check the appropriate
box below:
-- Section 4.10 -- Section 4.15
If you want to elect to have only part of the Note
purchased by the Company pursuant to Section 4.10 or Section
4.15 of the Indenture, state the amount you elect to have purchased:
$---------------
Date: _______________
Your Signature:
---------------------------------
(Sign exactly as your name appears
on the face of this Note)
Tax Identification No.:
--------------------------
Signature Guarantee*: _________________________
* Participant in a recognized Signature Guarantee Medallion Program (or
other signature guarantor acceptable to the Trustee).
A2-12
SCHEDULE OF EXCHANGES OF INTERESTS IN THE REGULATION S TEMPORARY GLOBAL NOTE
The following exchanges of a part of this Regulation S
Temporary Global Note for an interest in another Global Note, or exchanges of a
part of another other Restricted Global Note for an interest in this Regulation
S Temporary Global Note, have been made:
Principal Xxxxxx
Xxxxxx of decrease in Amount of increase in of this Global Note Signature of authorized
Principal Amount of Principal Amount of following such decrease officer of Trustee or
Date of Exchange this Global Note this Global Note (or increase) Custodian
---------------- ---------------- ---------------- ------------- ---------
A2-13
EXHIBIT B
FORM OF CERTIFICATE OF TRANSFER
[Company address block]
[Registrar address block]
Re: Senior Secured Floating Rate Notes due 2012
Reference is hereby made to the Indenture, dated as of
January 6, 2005 (the "Indenture"), between IWO Escrow Company, as issuer (the
"Company"), and U.S. Bank National Association, 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 WILL TAKE DELIVERY OF A
BENEFICIAL INTEREST IN THE 144A GLOBAL NOTE OR A RESTRICTED DEFINITIVE NOTE
PURSUANT TO RULE 144A. The Transfer is being effected pursuant to and in
accordance with Rule 144A under the Securities Act of 1933, as amended (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 believes is purchasing the beneficial interest or
Definitive Note for its own account, or for one or more accounts with respect to
which such Person exercises sole investment discretion, and such Person and each
such account is a "qualified institutional buyer" within the meaning of Rule
144A in a transaction meeting the requirements of Rule 144A, and such Transfer
is in compliance with any applicable blue sky securities laws of any state of
the United States. Upon consummation of the proposed Transfer in accordance with
the terms of the Indenture, the transferred beneficial interest or Definitive
Note will be subject to the restrictions on transfer enumerated in the Private
Placement Legend printed on the 144A Global Note and/or the Restricted
Definitive Note and in the Indenture and the Securities Act.
2. [ ] CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A
BENEFICIAL INTEREST IN THE REGULATION S TEMPORARY GLOBAL NOTE, THE REGULATION S
PERMANENT GLOBAL NOTE OR A RESTRICTED DEFINITIVE NOTE PURSUANT TO REGULATION S.
The Transfer is being effected pursuant to and in accordance with Rule 903 or
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 903(b) or 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
will be subject to the restrictions on Transfer enumerated in the Private
Placement Legend printed on the Regulation S Permanent Global Note, the
B-1
Regulation S Temporary Global Note and/or the Restricted 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 RESTRICTED 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):
(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, Rule 903 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 D to the Indenture and (2) 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 Restricted Definitive Notes and in the Indenture and
the Securities Act.
4. [ ] CHECK IF TRANSFEREE WILL 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
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 will no longer be subject to the restrictions on transfer
B-2
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 will 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 will 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.
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-3
ANNEX A TO CERTIFICATE OF TRANSFER
1. The Transferor owns and proposes to transfer the
following:
[CHECK ONE OF (A) OR (B)]
[ ] a beneficial interest in the:
(i) [ ] 144A Global Note (CUSIP _________),
or
(ii) [ ] Regulation S Global Note (CUSIP
_________), or
(iii) [ ]IAI Global Note (CUSIP _________); or
(b) [ ] a Restricted Definitive Note.
2. After the Transfer the Transferee will hold:
[CHECK ONE]
(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) [ ] 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-4
EXHIBIT C
FORM OF CERTIFICATE OF EXCHANGE
[Company address block]
[Registrar address block]
Re: Senior Secured Floating Rate Notes due 2012
(CUSIP ____________)
Reference is hereby made to the Indenture, dated as of
January 6, 2005 (the "Indenture"), between IWO Escrow Company, as issuer (the
"Company"), and U.S. Bank National Association, 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 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 Securities Act of 1933,
as amended (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
C-1
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 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 will 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 [CHECK ONE] 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 will 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.
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: _______________________
C-2
EXHIBIT D
FORM OF CERTIFICATE FROM
ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR
[Company address block]
[Registrar address block]
Re: Senior Secured Floating Rate Notes due 2012
Reference is hereby made to the Indenture, dated as of
January 6, 2005 (the "Indenture"), between IWO Escrow Company, as issuer (the
"Company"), and U.S. Bank National Association, 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 Securities Act of
1933, as amended (the "Securities Act").
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 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.
D-1
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.
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 Transferor]
By:
-------------------------------------------
Name:
Title:
Dated: _______________________
D-2
EXHIBIT E
FORM OF NOTATION OF GUARANTEE
For value received, each Guarantor (which term includes any
successor Person under the Indenture) has, jointly and severally,
unconditionally guaranteed, to the extent set forth in the Indenture and subject
to the provisions in the Indenture dated as of January 5, 2005 (the "Indenture")
among IWO Escrow Company, (the "Company"), the Guarantors party thereto and U.S.
Bank National Association, as trustee (the "Trustee"), (a) the due and punctual
payment of the principal of, premium and Liquidated Damages, if any, and
interest on, the Notes, whether at maturity, by acceleration, redemption or
otherwise, the due and punctual payment of interest on overdue principal of and
interest on the Notes, if any, if lawful, and the due and punctual performance
of all other obligations of the Company to the Holders or the Trustee all in
accordance with the terms of the Indenture and (b) in case of any extension of
time of payment or renewal of any Notes or any of such other obligations, that
the same will 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. The obligations of the Guarantors to the Holders of
Notes and to the Trustee pursuant to the Note Guarantee and the Indenture are
expressly set forth in Article [10] of the Indenture and reference is hereby
made to the Indenture for the precise terms of the Note Guarantee. Each Holder
of a Note, by accepting the same, (a) agrees to and shall be bound by such
provisions (b) authorizes and directs the Trustee, on behalf of such Holder, to
take such action as may be necessary or appropriate to effectuate the
subordination as provided in the Indenture and (c) appoints the Trustee
attorney-in-fact of such Holder for such purpose; provided, however, that the
Indebtedness evidenced by this Note Guarantee shall cease to be so subordinated
and subject in right of payment upon any defeasance of this Note in accordance
with the provisions of the Indenture.
Capitalized terms used but not defined herein have the
meanings given to them in the Indenture.
[NAME OF XXXXXXXXX(S)]
By:
------------------------------------
Name:
Title:
E-1
EXHIBIT F
FORM OF SUPPLEMENTAL INDENTURE
TO BE DELIVERED BY SUBSEQUENT GUARANTORS
SUPPLEMENTAL INDENTURE (this "Supplemental Indenture"),
dated as of ________________, 200_, among __________________ (the "Guaranteeing
Subsidiary"), a subsidiary of ____________________ (or its permitted successor),
a [Delaware] corporation (the "Company"), the Company, the other Guarantors (as
defined in the Indenture referred to herein) and U.S. Bank National Association,
as trustee under the Indenture referred to below (the "Trustee").
W I T N E S S E T H
WHEREAS, the Company has heretofore executed and delivered
to the Trustee an indenture (the "Indenture"), dated as of January 6, 2005
providing for the issuance of Senior Secured Floating Rate Notes due 2012 (the
"Notes");
WHEREAS, the Indenture provides that under certain
circumstances the Guaranteeing Subsidiary shall execute and deliver to the
Trustee a supplemental indenture pursuant to which the Guaranteeing Subsidiary
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 Guaranteeing Subsidiary 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 Guaranteeing Subsidiary
hereby agrees to provide an unconditional Guarantee on the terms and subject to
the conditions set forth in the Note Guarantee and in the Indenture including
but not limited to Article 11 thereof.
4. NO RECOURSE AGAINST OTHERS. No past, present or future
director, officer, employee, incorporator, stockholder or agent of the
Guaranteeing Subsidiary, as such, shall have any liability for any obligations
of the Company or any Guaranteeing Subsidiary 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 the 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.
5. NEW YORK LAW TO GOVERN. THE INTERNAL LAW OF THE STATE OF
NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE THIS SUPPLEMENTAL INDENTURE
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.
F-1
6. 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.
7. EFFECT OF HEADINGS. The Section headings herein are for
convenience only and shall not affect the construction hereof.
8. 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 Guaranteeing Subsidiary and the
Company.
F-2
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: _______________, 20___
[GUARANTEEING SUBSIDIARY]
By: _______________________________
Name:
Title:
IWO ESCROW COMPANY
By: _______________________________
Name:
Title:
[EXISTING GUARANTORS]
By: _______________________________
Name:
Title:
U.S. BANK NATIONAL
ASSOCIATION, as
Trustee
By: _______________________________
Authorized Signatory
F-3
EXHIBIT G
FORM OF ESCROW AGREEMENT
G-1
EXHIBIT H
FORM OF SECURITY AGREEMENT
H-1
