Exhibit 4.21
SUPPLEMENTAL INDENTURE dated as of December , 1996, between Heartland
Wireless Communications, Inc., a Delaware corporation (the "Company"), and First
Trust of New York, National Association, as trustee (the "Trustee") under the
Indenture dated as of March 28, 1996 (as amended by the supplemental indenture
dated October 7, 1995, and as further amended, supplemented or modified from
time to time, the "Indenture").
Pursuant to the Indenture, the Company has issued its 13% Series C Senior
Notes due 2003 (the "Notes"). Section 10.02 of the Indenture provides, INTER
ALIA, that the Company and the Trustee may amend or supplement the Indenture
with the written consent of the Holders of Notes of not less than a majority in
aggregate principal amount of the Notes then outstanding (the "Required
Consent"). The Company has solicited consents to the substance of this
Supplemental Indenture upon the terms and subject to the conditions set forth in
its Consent Solicitation Statement dated October 29, 1996, as amended by the
Supplements to Consent Solicitation Statement dated November 13, 1996, November
18, 1996, November 21, 1996 and November 27, 1996 (hereinafter referred to
collectively as the "Consent Solicitation"). The Company has obtained the
Required Consent to the substance of this Supplemental Indenture.
In order to effect the amendments contemplated by the Consent Solicitation
in accordance with Section 10.02 of the 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 of the Notes:
ARTICLE 1
AMENDMENTS TO THE INDENTURE
SECTION 1.1. AMENDMENTS TO SECTION 1.01. (a) Section 1.01 of the Indenture
is hereby amended by adding thereto the following definitions, to be inserted
therein in alphabetical order:
"Additional Consent Payments" mean payments to Holders of $55 for each
$1000 principal amount of Notes with respect to which such Holders have
delivered consents pursuant to, and prior to the Expiration Date set forth
in, the Consent Solicitation Statement of the Company dated October 29,
1996, as thereafter amended.
"Permitted Assets" means Wireless Cable Related Assets related to
wireless cable systems (i) in the United States and containing a maximum of
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250,000 households within a 35-mile radius of the licensed transmission
site associated with such system, at least 15% of which households are
unpassed by traditional hard-wire cable (as supported by an Officer's
Certificate), (ii) owned by the Company as of November 30, 1996 or (iii)
owned by Television Interactiva del norte, SA de C.V. (but only, with
respect to Investments in assets named in this clause (iii), up to the
amount of $3.0 million after November 30, 1996).
(b) Section 1.01 of the Indenture is hereby further amended by deleting
therefrom the definition of "Investments" in its entirety and substituting
therefor the following:
"Investments" means with respect to any Person on any date of
determination, the outstanding amount of, (i) all investments by such
Person in other Persons (including Affiliates) in the forms of loans,
Guarantees, 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 of any other Person and
all other items that are or would be classified as investments on a balance
sheet prepared in accordance with GAAP and (ii) all acquisitions by such
Person of assets to be used in the Wireless Cable Business (other than any
such acquisitions of equipment made in the ordinary course of such Person's
business) and other than any acquisition or lease (and any deposit
required to be made in connection therewith) of additional channel rights
on or after the Issue Date in any wireless cable market or "Basic Trading
Area" (as defined by Rand XxXxxxx) in which the Company and its Subsidiaries
(A) as of the date of the Indenture, have channel rights, whether by way of
license, lease with a channel license holder, lease with a channel license
applicant, lease with a qualified, non-profit educational organization that
plans to apply for a channel license or option to acquire any of the
foregoing; PROVIDED, HOWEVER, that simultaneously with the payment of the
Additional Consent Payments, the immediately preceding references to "Issue
Date" and "date of the Indenture" shall become "November 30, 1996"), or (B)
as of the date of such acquisition or lease, have rights with respect to at
least eight wireless cable channels, whether by way of license, lease with
a channel license holder, lease with a channel license applicant, lease
with a qualified, non-profit educational organization that plans to apply
for a channel license or option to acquire any of the foregoing; PROVIDED,
HOWEVER, that until the date on which the ratio of Annualized EBITDA to
Consolidated Interest Expense equals or exceeds 1.75 to 1.00, or until the
payment by the Company of the Additional Consent Payments, the aggregate
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amount of such acquisitions and leases (and deposits) of such additional
channel rights shall not exceed $12.5 million.
(c) Section 1.01 of the Indenture is hereby further amended by deleting
therefrom the definition of "Permitted Liens" in its entirety and substituting
therefor the following:
"Permitted Liens" means:
(i) Liens on (x) the Escrow Account and all funds and securities
therein securing only the Notes equally and ratably or (y) other assets of
the Company or any Subsidiary thereof securing only the Notes equally and
ratably;
(ii) Liens to secure Bank Indebtedness incurred by the Company or
the Subsidiaries in compliance with Section 4.08 and Guarantees incurred by
the Subsidiaries in compliance with clause (iv) of the second paragraph of
Section 4.08 executed in connection therewith;
(iii) Liens on the property of the Company or its Subsidiaries
created solely for the purpose of securing purchase money obligations
incurred in compliance with this Indenture; provided that (a) such property
so acquired is for use in lines of business related to the Company's or its
Subsidiaries' business as it exists immediately prior to the issuance of
the related Indebtedness, (b) no such Lien shall extend to or cover other
property or assets of the Company and its Subsidiaries other than the
respective property so acquired and (c) the principal amount of
Indebtedness secured by any such Lien shall at no time exceed the original
purchase price of such property or assets;
(iv) Liens on the property or assets of a Subsidiary acquired after
the Issue Date or on property or assets acquired in an asset purchase
transaction with a Person that is not an Affiliate created solely to secure
the obligations that financed the acquisition of such Subsidiary or such
property and assets; provided that (a) no such Lien shall extend to or
cover property or assets of the Company and its Subsidiaries other than the
property or assets of the Subsidiary so acquired or the property or assets
so acquired and (b) no such Lien shall extend to the Capital Stock of any
Subsidiary so acquired and (c) the principal amount of Indebtedness secured
by any such Lien shall not exceed the original purchase price of such
Subsidiary or such property or assets;
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(v) Liens on the assets of any entity existing at the time such
entity or assets are acquired by the Company or any of its Subsidiaries,
whether by merger, consolidation, purchase of assets or otherwise; provided
that such Liens (a) are not created, incurred or assumed in connection
with, or in contemplation of, such assets being acquired by the Company or
any of its Subsidiaries and (b) do not extend to any other property of the
Company or any of its Subsidiaries;
(vi) Liens to secure the performance of statutory obligations,
surety or appeal bonds or performance bonds or landlords', carriers',
warehousemen's, mechanics', suppliers', materialmen's or other like Liens,
in any case incurred in the ordinary course of business and with respect to
amounts not yet delinquent or being contested in good faith by appropriate
process of law, if a reserve or other appropriate provision, if any, as
required by GAAP shall have been made therefor;
(vii) Liens existing on the date of this Indenture;
(viii) Liens for taxes, assessments or governmental charges or claims
that are not yet delinquent or that are being contested in good faith by
appropriate proceedings promptly instituted and diligently concluded,
provided that any reserve or other appropriate provision as shall be
required in conformity with GAAP shall have been made therefor;
(ix) Liens in favor of any Federal governmental authority on any
wireless cable channels or "Basic Trading Area" (as defined by Rand
XxXxxxx) licenses acquired by the Company or any of its Subsidiaries in an
auction or other sale, provided that such wireless cable channels or "Basic
Trading Area" licenses are within the United States;
(x) Liens on any escrow account, and all funds and securities
therein, securing indebtedness incurred by the Company or the Subsidiaries
pursuant to clause (xi) of Section 4.08; and
(xi) extensions or renewals of any Liens referred to in clauses (i)
through (ix) above, provided that such extension or renewal does not extend
to any assets or secure any Indebtedness not securing or secured by the
Liens being extended or renewed.
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Notwithstanding the foregoing, Permitted Liens may not extend to the
Escrow Account or the Escrow and Disbursement Agreement.
SECTION 1.2. AMENDMENT TO SECTION 4.07. Section 4.07 of the
Indenture is hereby amended by deleting the text thereof in its entirety and
substituting therefor the following:
SECTION 4.07. LIMITATION ON RESTRICTED PAYMENTS.
The Company and its Subsidiaries may not, directly or indirectly (i)
declare or pay any dividend or make any distribution on account of any
Equity Interests of the Company or any of its Subsidiaries other than
dividends or distributions payable (A) in Equity Interests of the Company
that are not Disqualified Stock or (B) to the Company or any Wholly-Owned
Subsidiary of the Company; (ii) purchase, redeem or otherwise acquire or
retire for value any Equity Interests of the Company or any of its
Subsidiaries (other than any such Equity Interests owned by the Company or
a Wholly-Owned Subsidiary); (iii) purchase, redeem, defease or otherwise
acquire or retire for value any Indebtedness that is PARI PASSU or
subordinated in right of payment to the Notes, except in accordance with
the scheduled repayment provisions set forth in the original documentation
governing such Indebtedness; or (iv) in a single transaction or a series of
related transactions, until the date on which the ratio of Annualized
EBITDA to Consolidated Interest Expense equals or exceeds 1.75 to 1.00,
make Investments in a cumulative amount for the Company and all of its
Subsidiaries, in excess of (A) the sum of (1) $10.0 million, and (2) 100%
of the Net Proceeds received by the Company from the issue or sale of
Equity Interests of the Company (other than Equity Interests sold to a
Subsidiary of the Company or to an employee stock ownership plan or similar
trust and other than Disqualified Stock) (PROVIDED, HOWEVER, that
simultaneously with the payment of the Additional Consent Payments,
Investments made prior to November 30, 1996 shall be excluded from clause
(iv), the $10.0 million amount shall be increased to $15.0 million and the
Net Proceeds referred to in (2) above shall relate only to the issue or
sale of Equity Interests subsequent to November 30, 1996) less (B) the
cumulative amount of Net Proceeds received by the Company from the issue or
sale of Equity Interests of the Company that has been applied to make
Restricted Payments (all such payments and other actions set forth in
clauses (i) through (iv) above being collectively referred to as "Restricted
Payments"), unless, at the time of such Restricted Payment: (a) no Default
or Event of Default shall have occurred and be continuing or would occur as
a consequence thereof; (b)
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after giving effect to such Restricted Payment on a pro forma basis as if
such Restricted Payment had been made at the beginning of the applicable
fiscal quarter, the Company could incur $1.00 of additional Indebtedness
pursuant to the Annualized Cash Flow Ratio test in Section 4.08; and (c)
such Restricted Payment, together with the aggregate of all other
Restricted Payments made by the Company and its Subsidiaries after the
Issue Date, is less than the sum of: (x) 50% of the Consolidated Net Income
(or if Consolidated Net Income shall be a loss, minus 100% of such loss) of
the Company earned from the first day of the fiscal quarter during which
the Issue Date occurs to the end of the most recent fiscal quarter ending
prior to the date of such Restricted Payment, plus (y) 100% of the
aggregate Net Cash Proceeds received by the Company from the issue or sale
of Equity Interests of the Company (other than Equity Interests sold to a
Subsidiary of the Company or to an employee stock ownership plan or
similar trust and other than Disqualified Stock or the Net Proceeds from
the sale of Equity Interests applied to make Investments in accordance with
this covenant) since the Issue Date. Notwithstanding the foregoing, the
Company and its Subsidiaries may not, subsequent to the payment by the
Company of the Additional Consent Payments, directly or indirectly, make
any Investment in Wireless Cable Related Assets other than Permitted
Assets, except as permitted under clause (xv) of the following paragraph.
Notwithstanding the foregoing, the provisions set forth in the
immediately preceding paragraph do not prohibit (i) the payment of any
dividend within 60 days after the date of declaration thereof, if at such
date of declaration such payment would have complied with the provisions of
this Indenture; (ii) so long as no Default or Event of Default shall have
occurred and be continuing, the redemption, repurchase, retirement or other
acquisition of any Equity Interests of the Company in exchange for, or out
of the net proceeds of, the substantially concurrent sale for cash or
Marketable Securities (other than to a Subsidiary of the Company) of other
Equity Interests of the Company that are not Disqualified Stock; (iii) so
long as no Default or Event of Default shall have occurred and be
continuing, the purchase of Capital Stock of the Company (including
options, warrants or other rights to acquire such Capital Stock) from
employees or former employees of the Company or any Subsidiary thereof
pursuant to any employment agreement, management equity subscription
agreement or stock option plan or similar agreement in effect as of the
Issue Date or entered into in the ordinary course of business for
consideration which, when added to all loans made pursuant to clause (iv)
below during the fiscal year and then outstanding, does not exceed $0.5
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million in aggregate in any fiscal year or $2.5 million in the aggregate
over the life of the Notes; (iv) so long as no Default or Event of Default
shall have occurred and be continuing, the making of loans and advances to
employees of the Company or any Subsidiary thereof in the ordinary course
of business which, when added to the aggregate consideration paid pursuant
to clause (iii) above during the same fiscal year, does not exceed $0.5
million in any fiscal year or $2.5 million in the aggregate over the life
of the Notes; provided that upon repayment of such loans or advances made
after the Issue Date, such repaid amounts shall no longer be included in
the principal amount of loans and advances made to employees; (v) so long
as no Default or Event of Default shall have occurred and be continuing, a
Permitted Refinancing; (vi) so long as no Default or Event of Default shall
have occurred and be continuing, the redemption, repurchase, retirement or
other acquisition of Equity Interests of a Subsidiary of the Company for
(A) Equity Interests of the Company that are not Disqualified Stock or (B)
up to $1.0 million in the aggregate over the life of the Notes of cash
consideration; (vii) the payment of funds to satisfy or discharge any
liability or obligation incurred by the Company as a result of its joint
and several liability as a general partner for all third-party liabilities
and obligations of RuralVision Joint Venture, if any; (viii) the
acquisition by the Company of the Cross Country Sale Assets; (ix) the
acquisition by the Company of the Tulsa, Oklahoma wireless cable market
from USWS; (x) the acquisition by the Company of the Amarillo, Texas market
from U.S. Wireless; (xi) the payment of dividends on Preferred Stock of
Subsidiaries outstanding on the Issue Date; (xii) the redemption,
repurchase, retirement or other acquisition of Capital Stock of the Company
from U.S. Wireless for consideration comprised of the note receivable
related to the U.S. Wireless Loan; (xiii) Investments in Wireless Cable
Related Assets made with the Net Cash Proceeds from an Asset Sale made in
compliance with the first paragraph of Section 4.12 (whether such Asset
Sale shall have been consummated prior to or after the Issue Date) or
otherwise permitted by Section 4.12, provided that if such Investment had
been acquired in a simultaneous swap or exchange for the assets disposed of
in such Asset Sale, such swap or exchange would have complied with the
provisions of the third paragraph under Section 4.12; (xiv) Investments
that constitute part of an Asset Sale transaction consummated in compliance
with or otherwise permitted by the provisions of the third paragraph under
Section 4.12; (xv) Investments in the Wireless Cable Business acquired in
consideration for the issuance of Equity Interests of the Company (other
than Disqualified Stock) and cash paid in lieu of the issuance of
fractional shares and in satisfaction of any applicable dissenter's or
appraisal rights (provided that such Investments need not be in
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Permitted Assets); and (xvi) the consummation of any of the Transactions.
The amounts referred to in clauses (i), (ii), (iii), (iv) and (vi) shall be
included as Restricted Payments in any computation made pursuant to clause
(c) above. Restricted Payments shall be deemed not to include Permitted
Payments and Permitted Investments.
Not later than the making of any Restricted Payment, the Company shall
deliver to the Trustee an Officers' Certificate stating that such
Restricted Payment is permitted and setting forth the basis upon which the
calculations required by Section 4.07 were computed.
SECTION 1.3. AMENDMENT OF SECTION 4.08. SECTION 4.08 of the Indenture is
hereby amended by deleting the text thereof in its entirety and substituting
therefor the following:
SECTION 4.08. LIMITATION ON INDEBTEDNESS.
The Company will not, and will not permit any of its Subsidiaries to,
directly or indirectly, create, incur, assume, Guarantee, acquire, become
liable, contingently or otherwise, with respect to, or otherwise become
responsible for payment of (collectively, "incur") any Indebtedness;
provided that the Company (but not its Subsidiaries) may incur Indebtedness
if (i) no Default or Event of Default shall have occurred and be continuing
and (ii) the Annualized Cash Flow Ratio of the Company as of the date of
such incurrence or issuance shall not exceed (x) 7.0 to 1.0 if such
incurrence or issuance occurs on or prior to the second anniversary of the
Issue Date and (y) 5.0 to 1.0 if such incurrence or issuance occurs
thereafter.
The foregoing limitation will not apply to: (i) Indebtedness evidenced
by the Notes and this Indenture; (ii) the incurrence by the Company and its
Subsidiaries of the Existing Indebtedness, other than any Existing
Indebtedness required to be repaid with proceeds of the sale of the Notes;
(iii) the incurrence by the Company and its Subsidiaries of Bank
Indebtedness in an aggregate principal amount at any one time outstanding
not to exceed $25.0 million (such amount to be increased to $50.0 million
simultaneously with the payment by the Company of the Additional Consent
Payments) (less the amount of any then-outstanding Preferred Stock of
Subsidiaries issued to refinance Indebtedness to the extent such amount has
not been applied to reduce the amount of Indebtedness permitted under
clause (vii) below), as such amount may be permanently reduced as specified
in Section 4.12, and reduced by the amount of any outstanding Guarantee
incurred pursuant to clause (iv)
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below; provided that no Default or Event of Default shall have occurred and
be continuing at the time of such incurrence; (iv) the Guarantee by the
Subsidiaries of Bank Indebtedness permitted to be incurred by the Company
pursuant to the immediately preceding paragraph; (v) Indebtedness of the
Company issued to any Wholly-Owned Subsidiary; provided that (a) any such
Indebtedness is unsecured and is subordinated to the Notes and (b) that any
subsequent issuance or transfer of any Capital Stock which results in any
Wholly-Owned Subsidiary ceasing to be a Wholly-Owned Subsidiary or any
transfer of such Indebtedness to a Person not a Wholly-Owned Subsidiary
will be deemed an incurrence of such Indebtedness; (vi) Indebtedness of a
Subsidiary issued to and held by the Company or any Wholly-Owned Subsidiary
of the Company; provided that any subsequent issuance or transfer of any
Capital Stock which results in a Wholly-Owned Subsidiary ceasing to be a
Wholly-Owned Subsidiary or any transfer of such Indebtedness to a Person
not a Wholly-Owned Subsidiary of the Company will be deemed an incurrence
of such Indebtedness; (vii) upon the payment by the Company of the
Additional Consent Payments, the incurrence by the Company or its
Subsidiaries subsequent to November 30, 1996 of additional Indebtedness in
an aggregate principal amount not to exceed $15.0 million at any one time
outstanding (less the amount of any then-outstanding Preferred Stock of
Subsidiaries issued to refinance Indebtedness to the extent such amount has
not been applied to reduce the amount of Indebtedness permitted under
clause (iii) above); (viii) the incurrence (a "Permitted Refinancing") by
the Company and its Subsidiaries of Indebtedness issued in exchange for, or
the proceeds of which are used to extend, refinance, renew, replace or
refund Indebtedness incurred pursuant to the Annualized Cash Flow Ratio
test above or pursuant to clauses (ii), (iii), (iv), (v) and (vii) above
and clause (xi) below ("Refinancing Indebtedness"), provided that: (a) the
net proceeds of such Refinancing Indebtedness shall not exceed the
principal amount of and required premium, if any, and accrued interest on
the Indebtedness so extended, refinanced, renewed, replaced, substituted or
refunded (or if such Indebtedness was issued at an original issue discount,
the original issue price plus amortization of the original issue discount
at the time of the repayment of such Indebtedness) and reasonable expenses
incurred in connection therewith; (b) the Refinancing Indebtedness shall
have a final maturity later than, and a Weighted Average Life to Maturity
equal to or greater than, the final maturity and remaining Weighted Average
Life to Maturity of the Indebtedness being extended, refinanced, renewed,
replaced or refunded; and (c) if the Indebtedness being extended,
refinanced, renewed, replaced or refunded is subordinated in right of
payment to the Notes, the Refinancing Indebtedness shall be subordinated in
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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 so extended, refinanced, renewed, replaced or refunded; (ix) the
incurrence of obligations in respect of Interest Rate Agreements relating
to Indebtedness to the extent that the notional principal amount of such
obligation does not exceed the aggregate principal amount of the
Indebtedness to which such Interest Rate Agreement relates; (x) the
incurrence by the Company or any of its Subsidiaries of Indebtedness owing
to a Federal governmental authority relating to the purchase of wireless
cable channels in an auction or other sale (or Indebtedness satisfying the
requirements of (viii)(b) above issued in exchange for, or the proceeds of
which are used to extend, refinance, renew, replace or refund, such
Indebtedness) in an amount not to exceed in the aggregate $30.0 million at
any one time outstanding; or (xi) simultaneously with or subsequent to the
payment by the Company of the Additional Consent Payments, Indebtedness, in
an aggregate principal amount not to exceed $125.0 million, to be evidenced
by notes which shall have a final maturity later than and a Weighted
Average Life to Maturity greater than the final maturity and Weighted
Average Life to Maturity of the Notes. The Company and its Subsidiaries
may incur Acquired Debt only in compliance with this covenant.
SECTION 1.4. AMENDMENT OF SECTION 4.12. Section 4.12 of the Indenture is
hereby amended by deleting the text thereof in its entirety and substituting
therefor the following:
SECTION 4.12 LIMITATION ON ASSET SALES.
(a) The Company will not, and will not permit any of its
Subsidiaries to, consummate an Asset Sale unless (i) the Company or the
applicable Subsidiary, as the case may be, receives consideration at the
time of such Asset Sale at least equal to the Fair Market Value of the
assets sold or otherwise disposed of (as determined in good faith by the
Company's Board of Directors or if the Fair Market Value of such assets
exceeds $20.0 million, the Company shall receive from an investment banking
firm of national standing a written opinion in customary form as to the
fairness, to the Company, of such Asset Sale) and (ii) at least 80% of the
consideration received by the Company or the Subsidiary, as the case may
be, from such Asset Sale shall be cash or Marketable Securities and is
received at the time of such disposition. Upon the consummation of an
Asset Sale, the Company may apply, or cause such Subsidiary to apply, the
Net Cash Proceeds relating to such Asset Sale within 180 days of receipt
thereof either (A) to prepay any Bank Indebtedness and, in
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the case of any Bank Indebtedness under any revolving credit facility, to
effect a permanent reduction in the availability under such revolving
credit facility, (B) to reinvest in Wireless Cable Related Assets (provided
that, on and after the payment by the Company of the Additional Consent
Payments, such Wireless Cable Related Assets must be Permitted Assets) or
(C) to a combination of prepayment and investment permitted by the
foregoing clauses (A) and (B). On the 181st day after an Asset Sale or
such earlier date, if any, as the Board of Directors of the Company or of
such Subsidiary determines not to apply the Net Cash Proceeds relating to
such Asset Sale as set forth in clauses (A), (B) or (C) of the preceding
sentence (each, a "Net Proceeds Offer Trigger Date"), such aggregate amount
of Net Cash Proceeds which have not been applied on or before such Net
Proceeds Offer Trigger Date as permitted in clauses (A), (B) or (C) of the
preceding sentence (each a "Net Proceeds Offer Amount") shall be applied by
the Company to make an offer to purchase (the "Net Proceeds Offer") on a
date (the "Net Proceeds Offer Payment Date") not less than 30 nor more than
45 days following the applicable Net Proceeds Offer Trigger Date, from all
Holders on a PRO RATA basis that amount of Notes equal to the Net Proceeds
Offer Amount at a price equal to 100% of the principal amount of the Notes
to be purchased, plus accrued and unpaid interest thereon, if any, to the
date of purchase; PROVIDED, HOWEVER, that if at any time any non-cash
consideration received by the Company or any Subsidiary of the Company, as
the case may be, in connection with any Asset Sale is converted into or
sold or otherwise disposed of for cash (other than interest received with
respect to any such non-cash consideration), then such conversion or
disposition shall be deemed to constitute an Asset Sale hereunder and the
Net Cash Proceeds thereof shall be applied in accordance with this
covenant.
(b) Notwithstanding the foregoing, if a Net Proceeds Offer Amount
is less than $5.0 million, the application of the Net Cash Proceeds
constituting such Net Proceeds Offer Amount to a Net Proceeds Offer may be
deferred until such time as such Net Proceeds Offer Amount plus the
aggregate amount of all Net Proceeds Offer Amounts arising subsequent to
the Net Proceeds Offer Trigger Date relating to such initial Net Proceeds
Offer Amount from all Asset Sales by the Company and its Subsidiaries
aggregates at least $5.0 million, at which time the Company shall apply all
Net Cash Proceeds constituting all Net Proceeds Offer Amounts that have
been so deferred to make a Net Proceeds Offer (the first date the aggregate
of all such deferred Net Proceeds Offer Amounts is equal to $5.0 million or
more shall be deemed to be a Net Proceeds Offer Trigger Date).
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(c) Notwithstanding the two immediately preceding paragraphs (a)
and (b), the Company and its Subsidiaries will be permitted to consummate an
Asset Sale without complying with such paragraphs to the extent (i) at
least 95% of the consideration for such Asset Sale, other than cash
consideration, constitutes assets used in the business of the Company and
its Subsidiaries on the date of such transaction (provided that, on and
after the payment by the Company of the Additional Consent Payments, such
assets must be Permitted Assets), (ii) such Asset Sale is for Fair Market
Value (as determined in good faith by the Company's Board of Directors or
if the Fair Market Value of such assets exceeds $20.0 million, the Company
shall receive from an investment banking firm of national standing a
written opinion in customary form as to the fairness, to the Company, of
such Asset Sale) and (iii) the assets acquired in such an Asset Sale have
historically generated revenues in an amount at least equal to (1) the
revenues attributable to the assets disposed of in such Asset Sale,
multiplied by (2) a fraction, the numerator of which is the amount of
consideration other than cash consideration received in such Asset Sale,
and the denominator of which is the total amount of consideration received
in such Asset Sale (provided that the requirements of this clause (iii)
shall cease to be of any effect simultaneously with the payment of the
Additional Consent Payments); provided that any consideration received by
the Company or its Subsidiaries, as the case may be, in an Asset Sale
permitted to be consummated under this paragraph that does not constitute
assets to be used in the operations of the Company or its Subsidiaries
shall constitute Net Cash Proceeds which are subject to the provisions of
the two preceding paragraphs. In addition, notwithstanding the two
immediately preceding paragraphs, the Company will be permitted (i) to
consummate the Wireless One Transaction without complying with such
paragraphs, (ii) to sell the Call Markets to Wireless One without complying
with such paragraphs, (iii) to sell any or all of the assets acquired in
the AWS Transaction, the CableMaxx Transaction or the TechniVision
Transaction on or prior to the first anniversary of the consummation of
each such Transaction without complying with such paragraphs, (iv) to sell
any or all of the assets acquired by way of an Investment permitted by
clause (xv) of the second paragraph of Section 4.07 on or prior to the
first anniversary of the consummation of such acquisition without complying
with such paragraphs and (v) to sell, in a single transaction or a series
of transactions, assets for up to $25.0 million of non-cash consideration
(provided, that simultaneously with the payment by the Company of the
Additional Consent Payments, the $25.0 million amount referred to in this
clause (v) shall be computed only with respect to sales occurring after
November 30, 1996), provided, in the case of clauses (iii), (iv) and (v)
that
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the Company receives consideration at the time of such Asset Sale at least
equal to the Fair Market Value of the assets sold or otherwise disposed of
(as determined in good faith by the Company's Board of Directors or if the
Fair Market Value of such assets exceeds $20.0 million, the Company shall
receive from an investment banking firm of national standing a written
opinion in customary form as to the fairness, to the Company, of such Asset
Sale).
(d) Each Net Proceeds Offer will be mailed within 25 days
following the Net Proceeds Offer Trigger Date to the record Holders as
shown on the register of Holders, at their last registered addresses as of
a date within 15 days of the mailing of such notice, with a copy to the
Trustee. The notice shall contain all instructions and materials necessary
to enable such Holders to tender Notes pursuant to the Net Proceeds Offer
and shall state the following terms:
(1) that the Net Proceeds Offer is being made pursuant to Section
4.12 and that all Notes tendered will be accepted for payment; provided,
however, that if the aggregate principal amount of Notes tendered in a Net
Proceeds Offer plus accrued interest at the expiration of such offer
exceeds the aggregate amount of the Net Proceeds Offer, the Company shall
select the Notes to be purchased on a pro rata basis (with such adjustments
as may be deemed appropriate by the Company so that only Notes in
denominations of $1,000 or multiples thereof shall be purchased);
(2) the purchase price (including the amount of accrued interest)
and the purchase date (which shall be 20 Business Days from the date of
mailing of notice of such Net Proceeds Offer, or such longer period as
required by law) (the "Proceeds Purchase Date");
(3) that any Note not tendered will continue to accrue interest;
(4) that, unless the Company defaults in making payment therefor,
any Note accepted for payment pursuant to the Net Proceeds Offer shall
cease to accrue interest after the Proceeds Purchase Date;
(5) that Holders electing to have a Note purchased pursuant to a
Net Proceeds Offer will be required to surrender the Note, with the form
entitled "Option of Holder to Elect Purchase" on the reverse of the Note
completed, to the Paying Agent at the address specified in the notice prior
to the close of business on the third Business Day prior to the Proceeds
Purchase Date;
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(6) that Holders will be entitled to withdraw their election if
the Paying Agent receives, not later than the second Business Day prior to
the Proceeds Purchase Date, a facsimile transmission or written letter,
signature guaranteed, setting forth the name of the Holder, the principal
amount of the Notes the Holder delivered for purchase and a statement that
such Holder is withdrawing his election to have such Note purchased; and
(7) that Holders whose Notes are purchased only in part will be
issued new Notes in a principal amount equal to the unpurchased portion of
the Notes surrendered; PROVIDED, HOWEVER, that each Note purchased and each
new Note issued shall be in an original principal amount of $1,000 or
integral multiples thereof.
On or before the Proceeds Purchase Date, the Company shall (i) accept
for payment Notes or portions thereof tendered pursuant to the Net Proceeds
Offer which are to be purchased in accordance with item (b)(1) above, (ii)
deposit with the Paying Agent, in accordance with Section 2.14, U.S. Legal
Tender sufficient to pay the purchase price plus accrued interest, if any,
of all Notes to be purchased, (iii) deliver to the Trustee Notes so
accepted together with an Officers' Certificate stating the Notes or
portions thereof being purchased by the Company and (iv) deliver to the
Paying Agent an Officers' Certificate specifying the Notes or portions
thereof being purchased by the Company and the payees of the purchase
price. The Paying Agent shall promptly mail to the Holders of Notes so
accepted payment in an amount equal to the purchase price plus accrued
interest, if any. For purposes of this Section 4.12, the Trustee shall act
as the Paying Agent.
The Company will comply with the requirements of Rule 14e-1 under the
Exchange Act and any other securities laws and regulations thereunder to
the extent such laws and regulations are applicable in connection with the
repurchase of Notes pursuant to a Net Proceeds Offer. To the extent that
the provisions of any securities laws or regulations conflict with the
foregoing provisions of this Indenture, the Company shall comply with the
applicable securities laws and regulations and shall not be deemed to have
breached its obligations under the foregoing provisions of this Indenture
by virtue thereof.
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ARTICLE 2
MISCELLANEOUS
SECTION 2.1. INCORPORATION OF SUPPLEMENTAL INDENTURE, RATIFICATION OF
INDENTURE. All of the provisions of this Supplemental Indenture shall be deemed
to be incorporated in, and made a part of, the Indenture; and the Indenture, as
supplemented and amended by this Supplemental Indenture, shall be read, taken
and construed as one and the same instrument. Except as otherwise expressly
modified herein, the Indenture shall remain in full force and effect and is
hereby ratified.
SECTION 2.2. HEADINGS. The headings of the Articles and Sections of this
Supplemental Indenture have been inserted for convenience of reference only and
are not to be considered a part of this Supplemental Indenture and shall in no
way modify or restrict any of the terms or provisions hereof.
SECTION 2.3. COUNTERPART ORIGINALS. The parties may sign any number of
copies of this Supplemental Indenture. Each signed copy shall be an original,
but all of them taken together represent the same agreement.
SECTION 2.4. CONFLICT WITH TRUST INDENTURE ACT. If any provision of this
Supplemental Indenture limits, qualifies or conflicts with the duties imposed on
TIA Section 318(c), the imposed duties shall control.
SECTION 2.5. SUCCESSORS. All agreements of the Company in this
Supplemental Indenture shall bind its successors. All agreements of the Trustee
in this Supplemental Indenture shall bind its successors.
SECTION 2.6. BENEFITS OF SUPPLEMENTAL INDENTURE. Nothing in this
Supplemental Indenture, express or implied, shall give to any person, other than
the parties hereto and their successors hereunder and the Holders, any benefit
or any legal or equitable right, remedy or claim under this Supplemental
Indenture.
SECTION 2.7. DEFINED TERMS. Unless otherwise defined in this
Supplemental Indenture, all terms used in this Supplemental Indenture which are
defined in the Indenture shall have the meanings ascribed to them in the
Indenture.
SECTION 2.8. NO REPRESENTATION. The Trustee makes no representation as
to the validity or sufficiency of the Consent Solicitation, the Consents or this
Supplemental
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Indenture. The recitals contained herein are recitals of the Company, and the
Trustee makes no representation with respect thereto and shall have no
responsibility therefor.
SECTION 2.9. GOVERNING LAW. The Internal law of the State of New York
shall govern and be used to construe this Supplemental Indenture without regard
to principles of conflict of laws.
IN WITNESS WHEREOF, the Company and the Trustee have caused this
Supplemental Indenture to be duly executed and attested, all as of the day and
year first above written.
HEARTLAND WIRELESS
COMMUNICATIONS, INC.
[SEAL] By: /s/ Xxxxx X. Xxxxx
-----------------------------
Name: Xxxxx X. Xxxxx
Attest: Title: Vice President & Controller
/s/ J. Xxxxxx Xxxxxxxxx
-------------------------------
Name: J. Xxxxxx Xxxxxxxxx
Title: Vice President & General Counsel
FIRST TRUST OF NEW YORK,
NATIONAL ASSOCIATION
[SEAL] By:
-----------------------------
Name:
Attest: Title:
--------------------------------------
Name:
Title:
