EXHIBIT 4.1
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INDENTURE
Dated as of May 4, 1998
Between
TRITON PCS, INC.,
THE GUARANTORS PARTY HERETO,
and
PNC BANK, NATIONAL ASSOCIATION, Trustee
_____________
$450,000,000 Gross Proceeds
11% Senior Subordinated Discount Notes due 2008
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CROSS-REFERENCE TABLE
Indenture
Trust Indenture Act Section Section
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(S) 310(a)(1)............................................ 7.10
(a)(2)............................................ 7.10
(a)(3)............................................ N.A.
(a)(4)............................................ N.A.
(a)(5)............................................ 7.10
(b)............................................... 7.08; 7.10; 13.02
(c)............................................... N.A.
(S) 311(a)............................................... 7.11
(b)............................................... 7.11
(c)............................................... N.A.
(S) 312(a)............................................... 2.05
(b)............................................... 13.03
(c)............................................... 13.03
(S) 313(a)............................................... 7.06
(b)(1)............................................ N.A.
(b)(2)............................................ 7.06
(c)............................................... 7.06; 13.02
(d)............................................... 7.06
(S) 314(a)............................................... 4.11; 4.12; 13.02
(b)............................................... N.A.
(c)(1)............................................ 13.04
(c)(2)............................................ 13.04
(c)(3)............................................ N.A.
(d)............................................... N.A.
(e)............................................... 13.05
(f)............................................... N.A.
(S) 315(a)............................................... 7.01
(b)............................................... 7.05; 13.02
(c)............................................... 7.01(a)
(d)............................................... 7.01(c)
(e)............................................... 6.11
(S) 316(a)(last sentence)................................ 2.09
(a)(1)(A)......................................... 6.05
(a)(1)(B)......................................... 6.04
(a)(2)............................................ N.A.
(b)............................................... 6.07
(c)............................................... 10.04
(S) 317(a)(1)............................................ 6.08
(a)(2)............................................ 6.09
(b)............................................... 2.04
(S) 318(a)............................................... 13.01
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N.A. means Not Applicable.
NOTE: This Cross-Reference Table shall not, for any purpose, be deemed to be a
part of this Indenture.
TABLE OF CONTENTS
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Page
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ARTICLE ONE DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions............................................ 1
SECTION 1.02. Other Definitions...................................... 24
SECTION 1.03. Incorporation by Reference of Trust Indenture Act...... 24
SECTION 1.04. Rules of Construction.................................. 25
ARTICLE TWO THE SECURITIES
SECTION 2.01. Form and Dating........................................ 26
SECTION 2.02. Execution and Authentication........................... 28
SECTION 2.03. Registrar and Paying Agent............................. 29
SECTION 2.04. Paying Agent To Hold Money in Trust.................... 29
SECTION 2.05. Securityholder Lists................................... 30
SECTION 2.06. Transfer and Exchange.................................. 30
SECTION 2.07. Replacement Securities................................. 40
SECTION 2.08. Outstanding Securities................................. 41
SECTION 2.09. Treasury Securities.................................... 41
SECTION 2.10. Temporary Securities................................... 41
SECTION 2.11. Cancellation........................................... 42
SECTION 2.12. Defaulted Interest..................................... 42
SECTION 2.13. CUSIP or CINS Number................................... 42
SECTION 2.14. Payments of Interest................................... 42
ARTICLE THREE REDEMPTION
SECTION 3.01. Notices to Trustee..................................... 43
SECTION 3.02. Selection of Securities To Be Redeemed................. 44
SECTION 3.03. Notice of Redemption................................... 44
SECTION 3.04. Effect of Notice of Redemption......................... 45
SECTION 3.05. Deposit of Redemption Price............................ 45
SECTION 3.06. Securities Redeemed in Part............................ 46
ARTICLE FOUR COVENANTS
SECTION 4.01. Payment of Securities.................................. 46
SECTION 4.02. Maintenance of Office or Agency........................ 46
SECTION 4.03. Limitation on Transactions with Affiliates............. 47
SECTION 4.04. Limitation on Incurrence of Indebtedness............... 49
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SECTION 4.05. Limitation on Certain Asset Dispositions............... 52
SECTION 4.06. Limitation on Restricted Payments...................... 53
SECTION 4.07. Corporate Existence.................................... 57
SECTION 4.08. Payment of Taxes and Other Claims...................... 58
SECTION 4.09. Notice of Defaults..................................... 58
SECTION 4.10. Maintenance of Properties.............................. 58
SECTION 4.11. Compliance Certificate................................. 59
SECTION 4.12. Provision of Financial Information..................... 59
SECTION 4.13. Waiver of Stay, Extension or Usury Laws................ 60
SECTION 4.14. Change of Control...................................... 60
SECTION 4.15. Limitation on Layered Debt............................. 61
SECTION 4.16. Limitation on Restrictions Affecting Restricted
Subsidiaries...................................... 61
SECTION 4.17. Limitation on Liens.................................... 62
SECTION 4.18. Subsidiary Guarantees.................................. 64
SECTION 4.19. Limitation on Activities of the Company and
Restricted Subsidiaries........................... 64
SECTION 4.20. Amendments to Securities Purchase Agreement............ 64
SECTION 4.21. Limitation on Designations of Unrestricted
Subsidiaries...................................... 65
ARTICLE FIVE MERGERS; SUCCESSOR CORPORATION
SECTION 5.01. Restriction on Mergers, Consolidations and Certain
Sales of Assets................................... 66
SECTION 5.02. Successor Corporation Substituted...................... 67
ARTICLE SIX DEFAULT AND REMEDIES
SECTION 6.01. Events of Default...................................... 68
SECTION 6.02. Acceleration........................................... 70
SECTION 6.03. Other Remedies......................................... 70
SECTION 6.04. Waiver of Past Default................................. 71
SECTION 6.05. Control by Majority.................................... 71
SECTION 6.06. Limitation on Suits.................................... 72
SECTION 6.07. Rights of Holders to Receive Payment................... 73
SECTION 6.08. Collection Suit by Trustee............................. 73
SECTION 6.09. Trustee May File Proofs of Claim....................... 73
SECTION 6.10. Priorities............................................. 74
SECTION 6.11. Undertaking for Costs.................................. 74
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ARTICLE SEVEN TRUSTEE
SECTION 7.01. Duties of Trustee...................................... 75
SECTION 7.02. Rights of Trustee...................................... 76
SECTION 7.03. Individual Rights of Trustee........................... 77
SECTION 7.04. Trustee's Disclaimer................................... 77
SECTION 7.05. Notice of Defaults..................................... 78
SECTION 7.06. Reports by Trustee to Holders.......................... 78
SECTION 7.07. Compensation and Indemnity............................. 78
SECTION 7.08. Replacement of Trustee................................. 80
SECTION 7.09. Successor Trustee by Merger, etc....................... 81
SECTION 7.10. Eligibility; Disqualification.......................... 81
SECTION 7.11. Preferential Collection of Claims Against Company...... 81
ARTICLE EIGHT SUBORDINATION OF SECURITIES
SECTION 8.01. Securities Subordinated to Senior Debt................. 82
SECTION 8.02. No Payment on Securities in Certain Circumstances...... 82
SECTION 8.03. Payment Over of Proceeds upon Dissolution, etc......... 84
SECTION 8.04. Subrogation............................................ 85
SECTION 8.05. Obligations of Company Unconditional................... 85
SECTION 8.06. Notice to Trustee...................................... 86
SECTION 8.07. Reliance on Judicial Order or Certificate of
Liquidating Agent................................. 87
SECTION 8.08. Trustee's Relation to Senior Debt...................... 87
SECTION 8.09. Subordination Rights Not Impaired by Acts or Omissions
of the Company or Holders of Senior Debt.......... 88
SECTION 8.10. Securityholders Authorize Trustee To Effectuate
Subordination of Securities....................... 88
SECTION 8.11. This Article Not to Prevent Events of Default.......... 89
SECTION 8.12. Trustee's Compensation Not Prejudiced.................. 89
SECTION 8.13. No Waiver of Subordination Provisions.................. 89
SECTION 8.14. Subordination Provisions Not Applicable to Money Held
in Trust for Securityholders; Payments May Be
Paid Prior to Dissolution......................... 89
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ARTICLE NINE DISCHARGE OF INDENTURE
SECTION 9.01. Termination of Company's Obligations................... 90
SECTION 9.02. Application of Trust Money............................. 92
SECTION 9.03. Repayment to Company................................... 92
SECTION 9.04. Reinstatement.......................................... 93
ARTICLE TEN AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 10.01. Without Consent of Holders............................. 93
SECTION 10.02. With Consent of Holders................................ 94
SECTION 10.03. Compliance with Trust Indenture Act.................... 96
SECTION 10.04. Revocation and Effect of Consents...................... 96
SECTION 10.05. Notation on or Exchange of Securities.................. 97
SECTION 10.06. Trustee To Sign Amendments, etc........................ 97
ARTICLE ELEVEN GUARANTEE
SECTION 11.01. Unconditional Guarantee................................ 98
SECTION 11.02. Severability........................................... 99
SECTION 11.03. Release of a Guarantor................................. 99
SECTION 11.04. Limitation of Guarantor's Liability.................... 100
SECTION 11.05. Contribution........................................... 100
SECTION 11.06. Execution of Guarantee................................. 100
SECTION 11.07. Subordination of Subrogation and Other Rights.......... 101
ARTICLE TWELVE SUBORDINATION OF GUARANTEE
SECTION 12.01. Guarantee Obligations Subordinated to Senior Debt of
Guarantor......................................... 101
SECTION 12.02. No Payment on Guarantees in Certain Circumstances...... 102
SECTION 12.03. Payment Over of Proceeds upon Dissolution, etc......... 103
SECTION 12.04. Subrogation............................................ 104
SECTION 12.05. Obligations of Guarantors Unconditional................ 105
SECTION 12.06. Notice to Trustee...................................... 106
SECTION 12.07. Reliance on Judicial Order or Certificate of
Liquidating Agent................................. 107
SECTION 12.08. Trustee's Relation to Senior Debt of Guarantors........ 107
SECTION 12.09. Subordination Rights Not Impaired by Acts or Omissions
of the Guarantors or Holders of Senior Debt of
Guarantors........................................ 108
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SECTION 12.10. Securityholders Authorize Trustee to Effectuate
Subordination of Guarantee........................ 108
SECTION 12.11. This Article Not to Prevent Events of Default.......... 108
SECTION 12.12. Trustee's Compensation Not Prejudiced.................. 109
SECTION 12.13. No Waiver of Guarantee Subordination Provisions........ 109
SECTION 12.14. Payments May Be Paid Prior to Dissolution.............. 109
ARTICLE THIRTEEN MISCELLANEOUS
SECTION 13.01. Trust Indenture Act Controls........................... 110
SECTION 13.02. Notices................................................ 110
SECTION 13.03. Communications by Holders with Other Holders........... 112
SECTION 13.04. Certificate and Opinion as to Conditions Precedent..... 112
SECTION 13.05. Statements Required in Certificate or Opinion.......... 112
SECTION 13.06. Rules by Trustee, Paying Agent, Registrar.............. 113
SECTION 13.07. Governing Law.......................................... 113
SECTION 13.08. No Recourse Against Others............................. 113
SECTION 13.09. Successors............................................. 113
SECTION 13.10. Counterpart Originals.................................. 113
SECTION 13.11. Severability........................................... 114
SECTION 13.12. No Adverse Interpretation of Other Agreements.......... 114
SECTION 13.13. Legal Holidays......................................... 114
EXHIBIT A - Form of Security A-1
EXHIBIT B - Form of Certificate of Transfer B-1
EXHIBIT C - Form of Certificate of Exchange C-1
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NOTE: This Table of Contents shall not, for any purpose, be deemed to be a part
of this Indenture.
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INDENTURE dated as of May 4, 1998, among TRITON PCS, INC., a Delaware
corporation (the "Company"), the Guarantors party hereto and PNC BANK, NATIONAL
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ASSOCIATION, a national banking association organized under laws of the United
States of America, as trustee (the "Trustee").
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Each party hereto agrees as follows for the benefit of the other
parties and for the equal and ratable benefit of the Holders of the Company's
11% Senior Subordinated Discount Notes due 2008:
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions.
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"Accreted Value" means, as of any date of determination prior to May
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1, 2003, the sum of (a) the initial offering price of each Note and (b) the
portion of the excess of the principal amount of each Note over such initial
offering price which shall have been amortized by the Company in accordance with
GAAP through such date, such amount to be so amortized on a daily basis and
compounded semiannually on each interest payment date at a rate of 11% per annum
from the Issue Date through the date of determination computed on the basis of a
360-day year of twelve 30-day months.
"Acquired Indebtedness" means, with respect to any Person,
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Indebtedness of such Person (i) existing at the time such Person becomes a
Restricted Subsidiary or (ii) assumed in connection with the acquisition of
assets from another Person, including Indebtedness Incurred in connection with,
or in contemplation of, such Person becoming a Restricted Subsidiary or such
acquisition, as the case may be.
"Additional Interest" shall have the meaning set forth in the
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Registration Rights Agreement.
"Affiliate" of any specified Person means any other Person directly or
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indirectly controlling or controlled by or under direct or indirect common
control with any specified Person. For purposes of this definition, "control"
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when used with respect to any Person means the power to direct the management
and policies of such Person, directly or indirectly, whether through the
ownership of voting securities, by contract or oth-
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erwise; and the terms "controlling" and "controlled" have meanings correlative
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to the foregoing.
"Agent" means any Registrar, Paying Agent or co-Registrar.
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"Annualized Pro Forma Consolidated Operating Cash Flow" means
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Consolidated Cash Flow for the latest two full fiscal quarters for which
consolidated financial statements of the Company are available multiplied by
two. For purposes of calculating "Consolidated Cash Flow" for any period for
purposes of this definition only, (i) any Subsidiary of the Company that is a
Restricted Subsidiary on the date of the transaction giving rise to the need to
calculate "Annualized Pro Forma Consolidated Operating Cash Flow" (the
"Transaction Date") shall be deemed to have been a Restricted Subsidiary at all
times during such period and (ii) any Subsidiary of the Company that is not a
Restricted Subsidiary on the Transaction Date shall be deemed not to have been a
Restricted Subsidiary at any time during such period. In addition to and without
limitation of the foregoing, for purposes of this definition only, "Consolidated
Cash Flow" shall be calculated after giving effect on a pro forma basis for the
applicable period to, without duplication, any Asset Dispositions or Asset
Acquisitions (including, without limitation, any Asset Acquisition giving rise
to the need to make such calculation as a result of the Company or one of the
Restricted Subsidiaries (including any person who becomes a Restricted
Subsidiary as a result of the Asset Acquisition) incurring, assuming or
otherwise being liable for Acquired Indebtedness) occurring during the period
commencing on the first day of such two fiscal quarter period to and including
the Transaction Date (the "Reference Period"), as if such Asset Sale or Asset
Acquisition occurred on the first day of the Reference Period.
"Applicable Procedures" means with respect to any transfer or exchange
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of interests in a Global Security, the rules and procedures of DTC, Euroclear
and Cedel that apply to such transfer or exchange.
"Asset Acquisition" means (i) any purchase or other acquisition (by
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means of transfer of cash or other property to others or payment for property or
services for the account or use of others, or otherwise) of Equity Interests of
any person by the Company or any Restricted Subsidiary, in either case, pursuant
to which such person shall become a Restricted Subsidiary or shall be merged
with or into the Company or any Restricted Subsidiary or (ii) any acquisition by
the Company or
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any Restricted Subsidiary of the property or assets of any person which
constitute all or substantially all of an operating unit or line of business of
such person.
"Asset Disposition" means any sale, transfer or other disposition
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(including, without limitation, by merger, consolidation or sale-and-leaseback
transaction) of (i) shares of Capital Stock of a Subsidiary of the Company
(other than directors' qualifying shares), (ii) any FCC license for the
provision of wireless telecommunications services held by the Company or any
Restricted Subsidiary (whether by sale of Capital Stock or otherwise) or (iii)
property or assets of the Company or any Subsidiary of the Company; provided,
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however, that an Asset Disposition shall not include (a) any sale, transfer or
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other disposition of shares of Capital Stock, property or assets by a Restricted
Subsidiary to the Company or to any other Restricted Subsidiary or by the
Company to any Restricted Subsidiary, (b) any sale, transfer or other
disposition of defaulted receivables for collection or any sale, transfer or
other disposition of property or assets in the ordinary course of business, (c)
any sale, transfer or other disposition that does not (together with all related
sales, transfers or dispositions) involve aggregate consideration in excess of
$5.0 million, (d) the sale, lease, conveyance or disposition or other transfer
of all or substantially all of the assets of the Company as permitted under
Article Five or (e) any disposition that constitutes a Change of Control.
"Average Life" means, as of the date of determination, with respect to
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any Indebtedness for borrowed money or Preferred Stock, the quotient obtained by
dividing (i) the sum of the products of the number of years from the date of
determination to the dates of each successive scheduled principal or liquidation
value payments of such Indebtedness or Preferred Stock, respectively, and the
amount of such principal or liquidation value payments, by (ii) the sum of all
such principal or liquidation value payments.
"Bankruptcy Code" means Xxxxx 00, Xxxxxx Xxxxxx Code.
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"Board" of any person means the board of directors, management
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committee or other governing body of such person.
"Board Resolution" means, with respect to any Person, a duly adopted
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resolution of the Board of such Person.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and
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Friday which is not a day on which banking insti-
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tutions in the City of New York, New York or Pittsburgh, Pennsylvania are
authorized or obligated by law or executive order to close.
"Capital Lease Obligations" of any Person means the obligations to pay
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rent or other amounts under a lease of (or other Indebtedness arrangements
conveying the right to use) real or personal property of such Person which are
required to be classified and accounted for as a capital lease or liability on
the face of a balance sheet of such Person in accordance with GAAP. The amount
of such obligations shall be the capitalized amount thereof in accordance with
GAAP and the stated maturity thereof shall be the date of the last payment of
rent or any other amount due under such lease prior to the first date upon which
such lease may be terminated by the lessee without payment of a penalty.
"Capital Stock" of any Person means any and all shares, interests,
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rights to purchase, warrants, options participations or other equivalents of or
interests in (however designated) of corporate stock or other equity
participations, including partnership interests, whether general or limited of
such Person.
"Cash Equivalents" means (i) direct obligations of, or obligations the
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principal of and interest on which are unconditionally guaranteed by, the United
States of America (or by any agency thereof to the extent such obligations are
backed by the full faith and credit of the United States of America), in each
case maturing within one year from the date of acquisition thereof; (ii)
investments in commercial paper maturing within 365 days from the date of
acquisition thereof and having, at such date of acquisition, the highest credit
rating obtainable from Standard & Poor's or from Xxxxx'x Investors Service;
(iii) investments in certificates of deposit, banker's acceptance and time
deposits maturing within 365 days from the date of acquisition thereof issued or
guaranteed by or placed with, and money market deposit accounts issued or
offered by, any domestic office of any commercial bank organized under the laws
of the United States of America or any State thereof which has a combined
capital and surplus and undivided profits of not less than $500,000,000; (iv)
fully collateralized repurchase agreements with a term of not more than 30 days
for securities described in clause (i) of this definition and entered into with
a financial institution satisfying the criteria described in clause (iii) of
this definition; and (v) money market funds substantially all of whose assets
comprise securities of the type described in clauses (i) through (iii) of this
definition.
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"Change of Control" means the occurrence of one or more of the
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following events: (i) any "person" or "group" (as such terms are used in Section
13(d) and 14(d) of the Exchange Act) other than a Permitted Holder or Permitted
Holders or a person or group controlled by a Permitted Holder or Permitted
Holders becomes the "beneficial owner" (as defined in Rules 13d-3 and 13d-5
under the Exchange Act, except that a person shall be deemed to have "beneficial
ownership" of all such securities that such person has the right to acquire
within one year, upon the happening of an event or otherwise), is or becomes the
"beneficial owner" (as defined in Rule 13d-3 and 13d-5 under the Exchange Act),
directly or indirectly, of (A) securities of Triton PCS Holdings, Inc.
representing 50% or more of the combined voting power of Triton PCS Holdings,
Inc.'s then outstanding Voting Stock, or (B) securities of the Company
representing 50% or more of the combined voting power of the Company's then
outstanding Voting Stock; (ii) the following individuals cease for any reason to
constitute more than a majority of the number of directors then serving on the
Board of Triton PCS Holdings, Inc. or the Company: individuals who, on the date
hereof, constitute the Board and any new director (other than a director whose
initial assumption of the office is in connection with an actual or threatened
election contest, including but not limited to a consent solicitation, relating
to the election of directors of Triton PCS Holdings, Inc. or the Company) whose
appointment or election by the Board or nomination for election by the Company's
stockholders was approved by the vote of at least two-thirds (2/3) of the
directors then still in office or whose appointment, election or nomination was
previously so approved or recommended; or (iii) the shareholders of Triton PCS
Holdings, Inc. or of the Company shall approve any Plan of Liquidation (whether
or not otherwise in compliance with the provisions of this Indenture). For
purposes of the foregoing, the transfer (by lease, assignment, sale or
otherwise, in a single transaction or series of transactions) of all or
substantially all of the properties or assets of one or more Subsidiaries of the
Company, the Capital Stock of which constitutes all or substantially all of the
properties and assets of the Company, shall be deemed to be the transfer of all
or substantially all of the properties and assets of the Company.
"Common Stock" of any Person means Capital Stock of such Person that
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does not rank prior, as to the payment of dividends or as to the distribution of
assets upon any voluntary or involuntary liquidation, dissolution or winding up
of such Person, to shares of Capital Stock of any other class of such Person.
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"Commission" means the Securities and Exchange Commission.
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"Consolidated Cash Flow" of any Person means for any period the
----------------------
Consolidated Net Income of such Person for such period (x) increased (to the
extent Consolidated Net Income for such period has been reduced thereby) by the
sum of (without duplication) (i) Consolidated Interest Expense of such Person
for such period, plus (ii) Consolidated Income Tax Expense of such Person for
such period, plus (iii) the consolidated depreciation and amortization expense
of such Person and its Restricted Subsidiaries for such period, plus (iv) any
other non-cash charges of such Person and its Restricted Subsidiaries for such
period except for any non-cash charges that represent accruals of, or reserves
for, cash disbursements to be made in any future accounting period and (y)
decreased (to the extent Consolidated Net Income for such period has been
increased thereby) by any non-cash gains from Asset Dispositions.
"Consolidated Income Tax Expense" of any Person means for any period
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the consolidated provision for income taxes of such Person and its Restricted
Subsidiaries for such period calculated on a consolidated basis in accordance
with GAAP.
"Consolidated Interest Expense" for any Person means for any period,
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without duplication, (a) the consolidated interest expense included in a
consolidated income statement (without deduction of interest or finance charge
income) of such Person and its Restricted Subsidiaries for such period
calculated on a consolidated basis in accordance with GAAP (including, without
limitation, (i) any amortization of debt discount, (ii) the net costs under
interest rate agreements, (iii) all capitalized interest, (iv) the interest
portion of any deferred payment obligation and (v) all amortization of any
premiums, fees and expenses payable in connection with the Incurrence of any
Indebtedness, plus (b) the interest component of Capital Lease Obligations paid,
accrued and/or scheduled to be paid or accrued by such Person and its Restricted
Subsidiaries during such period as determined on a consolidated basis in
accordance with GAAP.
"Consolidated Net Income" of any Person means for any period the
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consolidated net income (or loss) of such Person and its Restricted Subsidiaries
for such period determined on a consolidated basis in accordance with GAAP;
provided, however, that there shall be excluded therefrom (a) the net income (or
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loss) of any Person acquired by such Person or a Restricted Subsidiary of such
Person in a pooling-of-interests transaction
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for any period prior to the date of such transaction, (b) the net income (but
not loss) of any Restricted Subsidiary of such Person which is subject to
restrictions which prevent or limit the payment of dividends or the making of
distributions to such Person to the extent of such restrictions (regardless of
any waiver thereof), (c) the net income of any Person that is not a Restricted
Subsidiary of such Person, except to the extent of the amount of dividends or
other distributions representing such Person's proportionate share of such other
Person's net income for such period actually paid in cash to such Person by such
other Person during such period, (d) gains or losses (other than for purposes of
calculating Consolidated Net Income under Section 4.06(a)(3)) on Asset
Dispositions by such Person or its Restricted Subsidiaries, (e) all
extraordinary gains (but not, other than for purposes of calculating
Consolidated Net Income under Section 4.06(a)(3), losses) determined in
accordance with GAAP and (f) in the case of a successor to the referent Person
by consolidation or merger or as a transferee of the referent Person's assets,
any earnings (or losses) of the successor corporation prior to such
consolidation, merger or transfer of assets.
"Credit Agreement" means the Credit Facility dated February 3, 1998,
----------------
among the Company, certain domestic subsidiaries of the Company, the agent and
certain banks referred to therein, as such agreement is amended through the
Issue Date and from time to time thereafter.
"Default" means any event that is, or after notice or lapse of time or
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both would become, an Event of Default.
"Designated Senior Debt" means (i) so long as any Indebtedness under
----------------------
one or more Senior Credit Facilities is outstanding or any lender has any
commitment to extend credit to the Company thereunder, the Senior Debt incurred
under any such Credit Facility and (ii) so long as outstanding, any other Senior
Debt which has at the time of initial issuance an aggregate outstanding
principal amount in excess of $25.0 million which has been so designated as
Designated Senior Debt by the Board of the Company at the time of initial
issuance in a resolution delivered to the Trustee.
"Designation" has the meaning set forth in Section 4.21.
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"Designation Amount" has the meaning set forth in Section 4.21.
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"Disinterested Director" means a member of the Board who does not have
----------------------
any material direct or indirect financial interest in or with respect to the
transaction being considered.
"Disqualified Stock" of any Person means any Capital Stock of such
------------------
Person which, by its terms (or by the terms of any security into which it is
convertible or for which it is exchangeable), or upon the happening of any
event, matures or is mandatorily redeemable, pursuant to a sinking fund
obligation or otherwise, or is redeemable at the option of the holder thereof,
in whole or in part, on or prior to the final maturity of the Notes.
"DTC" means The Depository Trust Company or its successors.
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"Equipment Subsidiary" means Triton PCS Equipment Company, L.L.C., a
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Delaware limited liability company.
"Equity Offering" means any public or private sale of Qualified Stock
---------------
made on a primary basis by the Company, Triton PCS Holdings, Inc. or a Special
Purpose Corporation, including through the issuance or sale of Qualified Stock
to one or more Strategic Equity Investors; provided that the proceeds from such
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issuance or sale of any Qualified Stock sold by Triton PCS Holdings, Inc. or the
Special Purpose Corporation, as the case may be, will be required, prior to any
redemption of Notes prior to May 1, 2001, to be contributed as equity in
exchange for Qualified Stock to, or be used to purchase Qualified Stock in, the
Company.
"Euroclear" means Xxxxxx Guaranty Trust Company of New York (Brussels
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Office) as operator of the Euroclear System.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
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and the rules and regulations promulgated by the Commission thereunder.
"Exchange Registration Statement" has the meaning set forth in the
-------------------------------
Registration Rights Agreement.
"Excluded Cash Proceeds" means the first $122 million of net cash
----------------------
proceeds received by the Company subsequent to the Issue Date from capital
contributions in respect of Qualified Stock of the Company or from the issue or
sale (other than to a Restricted Subsidiary) of Qualified Stock of the Company;
provided, that if the Myrtle Beach System is not acquired on or prior to March
--------
31, 1999 pursuant to the Myrtle Beach Acquisi-
-9-
tion Agreement such amount shall be reduced to the first $95 million received by
the Company subsequent to the Issue Date from capital contributions in respect
of Qualified Stock of the Company or from the issue or sale (other than to a
Restricted Subsidiary) of Qualified Stock of the Company.
"Fair Market Value" means, with respect to any asset or property, the
-----------------
price that could be negotiated in an arm's-length transaction, for cash, between
a willing seller and a willing buyer, neither of whom is under pressure or
compulsion to complete the transaction. Unless otherwise specified in this
Indenture, Fair Market Value shall be determined by the Board acting in good
faith.
"GAAP" means generally accepted accounting principles, consistently
----
applied, as in effect from time to time in the United States of America, as set
forth in the opinions and pronouncements of the Accounting Principles Board of
the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as is approved by a significant segment of the
accounting profession in the United States.
"Guarantee" means the guarantee of the Notes by each Guarantor under
---------
this Indenture.
"Guarantor" means (i) each Restricted Subsidiary that, on the Issue
---------
Date, is a direct or indirect obligor under, or in respect, of one or more of
the Senior Credit Facilities and (ii) each Restricted Subsidiary that pursuant
to the terms of this Indenture executes a supplement to this Indenture as a
Guarantor, in each case, until such Restricted Subsidiary is released from its
Guarantee.
"Holder" or "Securityholder" means the Person in whose name a Security
------ --------------
is registered on the Registrar's books.
"Incur" means, with respect to any Indebtedness or other obligation of
-----
any Person, to create, issue, incur (including by conversion, exchange or
otherwise), assume, guarantee or otherwise become liable in respect of such
Indebtedness or other obligation or the recording, as required pursuant to GAAP
or otherwise, of any such Indebtedness or other obligation on the balance sheet
of such Person (and "Incurrence," "Incurred" and "Incurring" shall have meanings
---------- -------- ---------
correlative to the foregoing). Indebtedness of any Person or any of its
Restricted Subsidiaries existing at the time such Person becomes
-10-
a Restricted Subsidiary (or is merged into or consolidates with the Company or
any Restricted Subsidiary), whether or not such Indebtedness was incurred in
connection with, or in contemplation of, such Person becoming a Restricted
Subsidiary (or being merged into or consolidated with the Company or any
Restricted Subsidiary), shall be deemed Incurred at the time any such Person
becomes a Restricted Subsidiary or merges into or consolidates with the Company
or any Restricted Subsidiary.
"Indebtedness" means (without duplication), with respect to any
------------
Person, whether recourse is to all or a portion of the assets of such Person and
whether or not contingent, (i) every obligation of such Person for money
borrowed, (ii) every obligation of such Person evidenced by bonds, debentures,
notes or other similar instruments, including obligations incurred in connection
with the acquisition of property, assets or businesses, (iii) every
reimbursement obligation of such Person with respect to letters of credit,
bankers' acceptances or similar facilities issued for the account of such
Person, (iv) every obligation of such Person issued or assumed as the deferred
purchase price of property or services (but excluding trade accounts payable or
accrued liabilities arising in the ordinary course of business which are not
overdue or which are being contested in good faith), (v) every Capital Lease
Obligation of such Person, (vi) every net obligation under interest rate swap or
similar agreements of such Person and (vii) every obligation of the type
referred to in clauses (i) through (vi) of another Person and all dividends of
another Person the payment of which, in either case, such Person has guaranteed
or is responsible or liable for, directly or indirectly, as obligor, guarantor
or otherwise. Indebtedness shall include the liquidation preference and any
mandatory redemption payment obligations in respect of any Disqualified Stock of
the Company and any Restricted Subsidiary, and any Preferred Stock of a
Subsidiary of the Company. Indebtedness shall never be calculated taking into
account any cash and cash equivalents held by such Person. Indebtedness shall
not include obligations arising from agreements of the Company or a Restricted
Subsidiary to provide for indemnification, adjustment of purchase price, earn-
out, or other similar obligations, in each case, incurred or assumed in
connection with the disposition of any business or assets of a Restricted
Subsidiary. The amount of any Indebtedness outstanding as of any date shall be
(i) the accreted value thereof, in the case of any Indebtedness issued with
original issue discount, (ii) the principal amount thereof, in the case of any
Indebtedness other than Indebtedness issued with original issue discount, and
(iii) the greater of the maximum repurchase or redemption price or liquidation
prefer-
-11-
ence thereof, in the case of any Disqualified Stock or Preferred Stock.
"Indenture" means this Indenture as amended or supplemented from time
---------
to time in accordance with its terms.
"Initial Global Securities" means the Regulation S Global Security and
-------------------------
the 144A Global Security, each of which is issued on the Issue Date and contains
a Securities Act Legend.
"Institutional Accredited Investor" means an institution that is an
---------------------------------
"accredited investor" as that term is defined in Rule 501(a)(1), (2), (3) or (7)
of Regulation D promulgated under the Securities Act.
"interest" means, with respect to the Notes, the sum of any cash
--------
interest and any Additional Interest on the Notes.
"Interest Payment Date" has the meaning given to such term in the
---------------------
Securities.
"Interest Rate Obligations" means, with respect to any Person, the
-------------------------
obligations of such Person under (i) interest rate swap agreements, interest
rate cap agreements and interest rate collar agreements, and (ii) other
agreements or arrangements designed to protect such Person against, or to expose
such Person to, fluctuations in interest rates.
"Investment" by any Person means any direct or indirect loan, advance,
----------
guarantee or other extension of credit or capital contribution to (by means of
transfers of cash or other property to others or payments for property or
services for the account or use of others, or otherwise), or purchase or
acquisition of Capital Stock, bonds, notes, debentures or other securities or
evidence of Indebtedness issued by, any other Person.
"Issue Date" means May 4, 1998, the original issue date of the
----------
Securities initially issued hereunder.
"License Subsidiary" means Triton PCS License Company, L.L.C., a
------------------
Delaware limited liability company.
"Lien" means, with respect to any property or assets, any mortgage or
----
deed of trust, pledge, hypothecation, assignment, security interest, lien,
charge, easement (other than any easement not materially impairing usefulness or
marketability), encumbrance, preference, priority or other security agreement
-12-
with respect to such property or assets (including, without limitation, any
conditional sale or other title retention agreement having substantially the
same economic effect as any of the foregoing).
"Material Subsidiary" means, at any date of determination, (a) any
-------------------
Restricted Subsidiary that, together with its Subsidiaries that constitute
Restricted Subsidiaries (i) for the most recent fiscal year of the Company
accounted for more than 10.0% of the consolidated revenues of the Company and
the Restricted Subsidiaries or (ii) as of the end of such fiscal year, owned
more than 10.0% of the consolidated assets of the Company and the Restricted
Subsidiaries, all as set forth on the consolidated financial statements of the
Company and the Restricted Subsidiaries for such year prepared in conformity
with GAAP, and (b) any Restricted Subsidiary which, when aggregated with all
other Restricted Subsidiaries that are not otherwise Significant Restricted
Subsidiaries and as to which any event described in clause (h) or (i) of Section
6.01 has occurred, would constitute a Significant Restricted Subsidiary under
clause (a) of this definition.
"Myrtle Beach Acquisition Agreement" means the Asset Purchase
----------------------------------
Agreement dated March 10, 1998 by and between the Company and Vanguard Cellular
Systems of South Carolina, Inc., including any amendments, modifications,
supplements or replacements thereof.
"Myrtle Beach System" means the existing cellular system currently
-------------------
owned and operated by Vanguard Cellular Systems of South Carolina, Inc., serving
the Xxxxx Xxxxxxxx 0- Xxxxxxxxxx Xxxxx Service Area.
"Net Available Proceeds" from any Asset Disposition by any Person
----------------------
means cash or readily marketable cash equivalents received (including by way of
sale or discounting of a note, installment receivable or other receivable, but
excluding any other consideration received in the form of assumption by the
acquirer of Indebtedness or other obligations relating to such properties or
assets or received in any other non-cash form) therefrom by such Person,
including any cash received by way of deferred payment or upon the monetization
or other disposition of any non-cash consideration (including notes or other
securities) received in connection with such Asset Disposition, net of (i) all
legal, title and recording tax expenses, commissions and other fees and expenses
incurred and all federal, state, foreign and local taxes required to be accrued
as a liability as a consequence of such Asset Disposition, (ii) all payments
-13-
made by such Person or any of its Restricted Subsidiaries on any Indebtedness
which is secured by such assets in accordance with the terms of any Lien upon or
with respect to such assets or which must by the terms of such Lien, or in order
to obtain a necessary consent to such Asset Disposition or by applicable law, be
repaid out of the proceeds from such Asset Disposition, (iii) all payments made
with respect to liabilities associated with the assets which are the subject of
the Asset Disposition, including, without limitation, trade payables and other
accrued liabilities, (iv) appropriate amounts to be provided by such Person or
any Restricted Subsidiary thereof, as the case may be, as a reserve in
accordance with GAAP against any liabilities associated with such assets and
retained by such Person or any Restricted Subsidiary thereof, as the case may
be, after such Asset Disposition, including, without limitation, liabilities
under any indemnification obligations and severance and other employee
termination costs associated with such Asset Disposition, until such time as
such amounts are no longer reserved or such reserve is no longer necessary (at
which time any remaining amounts will become Net Available Proceeds to be
allocated in accordance with the provisions of clause (iii) of Section 4.05) and
(v) all distributions and other payments made to minority interest holders in
Restricted Subsidiaries of such Person or joint ventures as a result of such
Asset Disposition.
"Net Investment" means the excess of (i) the aggregate amount of all
--------------
Investments made in any Unrestricted Subsidiary or joint venture by the Company
or any Restricted Subsidiary on or after the Issue Date (in the case of an
Investment made other than in cash, the amount shall be the Fair Market Value of
such Investment as determined in good faith by the Board of the Company or such
Restricted Subsidiary) over (ii) the aggregate amount returned in cash on or
with respect to such Investments whether through interest payments, principal
payments, dividends or other distributions or payments; provided, however, that
-------- -------
such payments or distributions shall not be (and have not been) included in
Section 4.06(a)(3)(iii); provided, further, that with respect to all Investments
-------- -------
made in any Unrestricted Subsidiary or joint venture the amounts referred to in
clause (ii) above with respect to such Investments shall not exceed the
aggregate amount of all such Investments made in such Unrestricted Subsidiary or
joint venture.
"Offer to Purchase" means a written offer (the "Offer") sent by the
----------------- -----
Company by first class mail, postage prepaid, to each Holder at his address
appearing in the register for the Securities on the date of the Offer offering
to purchase up to (i) the Accreted Value of Notes if such Offer is on
-14-
or prior to May 1, 2003 or (ii) the principal amount at maturity of the Notes if
such Offer is after May 1, 2003 specified in such Offer at the purchase price
specified in such Offer (as determined pursuant to this Indenture). Unless
otherwise required by applicable law, the Offer shall specify an expiration date
(the "Expiration Date") of the Offer to Purchase which shall be not less than 30
days nor more than 60 days after the date of such Offer and a settlement date
(the "Purchase Date") for purchase of Notes within five Business Days after the
Expiration Date. The Company shall notify the Trustee at least 15 Business Days
(or such shorter period as is acceptable to the Trustee) prior to the mailing of
the Offer of the Company's obligation to make an Offer to Purchase, and the
Offer shall be mailed by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company. The Offer shall contain
all the information required by applicable law to be included therein. The Offer
shall contain all instructions and materials necessary to enable such holders to
tender Notes pursuant to the Offer to Purchase. The Offer shall also state:
(i) the Section of this Indenture pursuant to which the Offer to
Purchase is being made;
(ii) the Expiration Date and the Purchase Date;
(iii) the aggregate principal amount at maturity of the outstanding
Securities offered to be purchased by the Company pursuant to the Offer to
Purchase (including, if less than 100%, the manner by which such amount has
been determined pursuant to the Section of this Indenture requiring the
Offer to Purchase) (the "Purchase Amount");
---------------
(iv) the purchase price to be paid by the Company for each $1,000
aggregate principal amount at maturity of Securities accepted for payment
(as specified pursuant to this Indenture) (the "Purchase Price");
--------------
(v) that the Holder may tender all or any portion of the Securities
registered in the name of such Holder and that any portion of a Security
tendered must be tendered in an integral multiple of $1,000 principal
amount at maturity;
(vi) the place or places where Securities are to be surrendered for
tender pursuant to the Offer to Purchase;
-15-
(vii) that interest on any Security not tendered or tendered but
not purchased by the Company pursuant to the Offer to Purchase will
continue to accrue;
(viii) that on the Purchase Date the Purchase Price will become due
and payable upon each Security being accepted for payment pursuant to the
Offer to Purchase and that interest thereon shall cease to accrue on and
after the Purchase Date;
(ix) that each Holder electing to tender all or any portion of a
Security pursuant to the Offer to Purchase will be required to surrender
such Security at the place or places specified in the Offer prior to the
close of business on the Expiration Date (such Security being, if the
Company or the Trustee so requires, duly endorsed by, or accompanied by a
written instrument of transfer in form satisfactory to the Company and the
Trustee duly executed by, the Holder thereof or his attorney duly
authorized in writing);
(x) that Holders will be entitled to withdraw all or any portion of
Securities tendered if the Company (or its Paying Agent) receives, not
later than the close of business on the fifth Business Day next preceding
the Expiration Date, a telegram, telex, facsimile transmission or letter
setting forth the name of the Holder, the principal amount at maturity of
the Securities the Holder tendered, the certificate number of the
Securities the Holder tendered and a statement that such Holder is
withdrawing all or a portion of his tender;
(xi) that (a) if Securities in an aggregate principal amount at
maturity less than or equal to the Purchase Amount are duly tendered and
not withdrawn pursuant to the Offer to Purchase, the Company shall purchase
all such Securities and (b) if Securities in an aggregate principal amount
at maturity in excess of the Purchase Amount are tendered and not withdrawn
pursuant to the Offer to Purchase, the Company shall purchase Securities
having an aggregate principal amount at maturity equal to the Purchase
Amount on a pro rata basis (with such adjustments as may be deemed
appropriate so that only Securities in denominations of $1,000 or integral
multiples thereof shall be purchased); and
(xii) that in the case of any Holder whose Security is purchased
only in part, the Company shall execute and the
-16-
Trustee shall authenticate and deliver to the Holder of such Security
without service charge, a new Security or Securities, of any authorized
denomination as requested by such Holder in writing, in an aggregate
principal amount at maturity equal to and in exchange for the unpurchased
portion of the Security so tendered.
An Offer to Purchase shall be governed by and effected in accordance
with the provisions above pertaining to any Offer.
"Officer" means the Chairman of the Board, the Chief Executive
-------
Officer, any Executive Vice President, any Senior Vice President, the Chief
Financial Officer, the Treasurer, or the Secretary of the Company.
"Officers' Certificate" means a certificate, signed by two Officers
---------------------
(at least one of whom shall be the Chief Financial Officer of the Company) or by
an Officer and an Assistant Treasurer or Assistant Secretary of the Company,
complying with Sections 13.04 and 13.05.
"Opinion of Counsel" means a written opinion from legal counsel who is
------------------
reasonably acceptable to the Trustee. The counsel may be an employee of or
counsel to the Company or the Trustee.
"Participant" means any Person who has an account with DTC.
-----------
"Permitted Asset Swap" means any exchange of assets by the Company or
--------------------
a Restricted Subsidiary of the Company where the Company and/or its Restricted
Subsidiaries receive consideration at least 75% of which consists of (a) cash,
(b) assets that are used or useful in a Permitted Business or (c) any
combination thereof.
"Permitted Business" means (i) the delivery or distribution of
------------------
telecommunications, voice, data or video services, (ii) any business or activity
reasonably related or ancillary thereto, including, without limitation, any
business conducted by the Company or any Restricted Subsidiary on the Issue Date
and the acquisition, holding or exploitation of any license relating to the
delivery of the services described in clause (i) of this definition or (iii) any
other business or activity in which the Company and the Restricted Subsidiaries
are expressly contemplated to be engaged in pursuant to the provisions of the
-17-
certificate of incorporation and by-laws of the Company as in effect on the
Issue Date.
"Permitted Holder" means (i) each of AT&T Corporation, Chase Capital
----------------
Partners, X.X. Xxxxxx Investment Corporation, Xxxxx Capital Management
Incorporated and any of their respective Affiliates and the respective
successors (by merger, consolidation, transfer or otherwise) to all or
substantially all of the respective businesses and assets of any of the
foregoing and (ii) any "person" or "group" (as such terms are used in Section
13(d) and 14(d) of the Exchange Act) controlled by one or more persons
identified in clause (i) of this definition.
"Permitted Investments" means (i) Investments in Cash Equivalents;
---------------------
(ii) Investments representing Capital Stock or obligations issued to the Company
or any Restricted Subsidiary in the course of the good faith settlement of
claims against any other Person or by reason of a composition or readjustment of
debt or a reorganization of any debtor of the Company or any Restricted
Subsidiary; (iii) deposits, including interest-bearing deposits, maintained in
the ordinary course of business in banks; (iv) any Investment in any Person;
provided, however, that after giving effect to any such Investment such Person
-------- -------
is or becomes a Restricted Subsidiary or such Person is merged, consolidated or
amalgamated with or into, or transfers or conveys substantially all of its
assets to, or is liquidated into, the Company or a Restricted Subsidiary of the
Company; (v) trade receivables and prepaid expenses, in each case arising in the
ordinary course of business; provided, however, that such receivables and
-------- -------
prepaid expenses would be recorded as assets of such Person in accordance with
GAAP; (vi) endorsements for collection or deposit in the ordinary course of
business by such Person of bank drafts and similar negotiable instruments of
such other Person received as payment for ordinary course of business trade
receivables; (vii) any interest rate agreements with an unaffiliated Person
otherwise permitted by clause (v) or (vi) under Section 4.04; (viii) Investments
received as consideration for an Asset Disposition in compliance with Section
4.05; (ix) loans or advances to employees of the Company or any Restricted
Subsidiary in the ordinary course of business in an aggregate amount not to
exceed $5.0 million in the aggregate at any one time outstanding; (xi) any
Investment acquired by the Company or any of its Restricted Subsidiaries as a
result of a foreclosure by the Company or any of its Restricted Subsidiaries or
in connection with the settlement of any outstanding Indebtedness or trade
payable; (xii) loans and advances to officers, directors and employees for
business-related travel ex-
-18-
pense, moving expenses and other similar expenses, each incurred in the ordinary
course of business; and (xiii) other Investments (with each such Investment
being valued as of the date made and without giving effect to subsequent changes
in value) in an aggregate amount not to exceed $7.5 million at any one time
outstanding.
"Permitted Junior Securities" means (i) Qualified Stock, (ii)
---------------------------
securities of the Company or any other corporation authorized by an order or
decree giving effect, and stating in such order or decree that effect is given,
to the subordination of such securities to the Senior Debt, and made by a court
of competent jurisdiction in a reorganization proceeding under any applicable
bankruptcy, insolvency or other similar law, or (iii) any securities of the
Company provided for by a plan of reorganization or readjustment that are
subordinated in right of payment to all Senior Debt that may at the time be
outstanding to substantially the same extent as, or to a greater extent than,
the Notes are subordinated as provided in this Indenture.
"Person" means any individual, corporation, limited or general
------
partnership, joint venture, association, joint stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Plan of Liquidation" means, with respect to any Person, a plan
-------------------
(including by operation of law) that provides for, contemplates or the
effectuation of which is preceded or accompanied by (whether or not
substantially contemporaneously) (i) the sale, lease, conveyance or other
disposition of all or substantially all of the assets of the referent Person and
(ii) the distribution of all or substantially all of the proceeds of such sale,
lease, conveyance or other disposition and all or substantially all of the
remaining assets of the referent Person to holders of Capital Stock of the
referent Person.
"Preferred Stock" as applied to the Capital Stock of any Person, means
---------------
Capital Stock of such Person of any class or classes (however designated) that
ranks prior, as to the payment of dividends or as to the distribution of assets
upon any voluntary or involuntary liquidation, dissolution or winding up of such
Person, to shares of Capital Stock of any other class of such Person.
"principal" of any Security means principal of, and premium, if any,
---------
with respect to, such Security.
-19-
"Private Exchange Securities" has the meaning set forth in the
---------------------------
Registration Rights Agreement.
"Public Sale" means any underwritten public offering, made on a
-----------
primary basis pursuant to a registration statement filed with, and declared
effective by, the Commission in accordance with the Securities Act.
"Purchase Date" has the meaning set forth in the definition of "Offer
-------------
to Purchase."
"Qualified Institutional Buyer" or "QIB" shall have the meaning
----------------------------- ---
specified under Rule 144A under the Securities Act.
"Qualified Stock" means any Capital Stock of the Company, Triton PCS
---------------
Holdings, Inc. or a Special Purpose Corporation other than Disqualified Stock.
"Real Property Subsidiary" means Triton PCS Property Company, L.L.C.,
------------------------
a Delaware limited liability company.
"Refinance" means refinance, renew, extend, replace or refund; and
---------
"Refinancing" and "Refinanced" have correlative meanings.
----------- ----------
"Registration Rights Agreement" means the Registration Rights
-----------------------------
Agreement dated the date hereof among the Company, the Guarantors and X.X.
Xxxxxx Securities Inc., Chase Securities Inc and Xxxxxx Brothers Inc.
"Regulation S" means Regulation S under the Securities Act.
------------
"Restricted Physical Security" means a Physical Security containing,
----------------------------
or required to contain, a Securities Act Legend.
"Restricted Subsidiary" means any Subsidiary of the Company other than
---------------------
an Unrestricted Subsidiary.
"Revocation" has the meaning set forth in Section 4.21.
----------
"Rule 144" means Rule 144 under the Securities Act.
--------
"Rule 144A" means Rule 144A under the Securities Act.
---------
"SEC" means the Securities and Exchange Commission.
---
-20-
"Securities" means the 11% Senior Subordinated Discount Notes due 2008
----------
issued under this Indenture.
"Securities Act" means the Securities Act of 1933, as amended, and the
--------------
rules and regulations promulgated by the SEC thereunder.
"Senior Credit Facilities" means upon the initial issuance of the
------------------------
Notes, the Credit Agreement and at any time thereafter may include the Credit
Agreement and/or any other agreement providing for loans by banks, trust
companies and/or other institutions principally engaged in the business of
lending money to businesses under a credit facility, loan agreement or similar
agreement.
"Senior Debt" means, with respect to any Person at any date, (i) in
-----------
the case of the Company or the Guarantors, all Indebtedness and other payment
obligations under one or more Senior Credit Facilities, including principal,
premium, if any, and interest on such Indebtedness and all other amounts due on
or in connection with such Indebtedness, including all charges, fees, expenses,
reimbursement obligations, guarantees and indemnity payments, (ii) all other
Indebtedness of such Person for borrowed money or under Vendor Credit
Agreements, including principal, premium, if any, and interest on such
Indebtedness, unless the instrument under which such Indebtedness for borrowed
money is created, incurred, assumed or guaranteed expressly provides that such
Indebtedness for borrowed money is not senior or superior in right of payment to
the Securities or the Guarantees, as the case may be, and all Refinancings or
modifications or amendments thereof and (iii) all interest on any Indebtedness
referred to in clauses (i) and (ii) accruing during the pendency of any
bankruptcy or insolvency proceeding, whether or not allowed thereunder.
Notwithstanding the foregoing, Senior Debt shall not include (a) Indebtedness
which is pursuant to its terms or any agreement or instrument relating thereto
or by operation of law subordinated or junior in right of payment or otherwise
to any other Indebtedness of such Person; provided, however, that no
-------- -------
Indebtedness shall be deemed to be subordinate or junior in right of payment or
otherwise to any other Indebtedness of a Person solely by reason of such other
Indebtedness being secured and such Indebtedness not being secured, (b) the
Securities, (c) any Indebtedness of such Person to any of its Subsidiaries, (d)
Indebtedness Incurred in violation of Section 4.04 and (e) any Indebtedness
which, when incurred and without respect to any election under Section 1111(b)
of the Bankruptcy Code, is without recourse to the Company.
-21-
"Shelf Registration Statement" has the meaning set forth in the
----------------------------
Registration Rights Agreement.
"Standard & Poor's" means Standard & Poor's Ratings Service, a
-----------------
division of the McGraw Hill Companies, Inc.
"Strategic Equity Investor" means any of the Initial Cash Equity
-------------------------
Investors (as defined in the Securities Purchase Agreement), any Affiliate
thereof or any other Person engaged in a Permitted Business whose Total Equity
Market Capitalization exceeds $500 million.
"Subordinated Indebtedness" means any Indebtedness of the Company or
-------------------------
any Guarantor (whether outstanding on the date hereof or hereafter Incurred)
which is by its terms expressly subordinate or junior in right of payment to the
Securities or the Guarantee of such Guarantor, as the case may be.
"Subsidiary" of any Person means (i) a corporation more than 50% of
----------
the outstanding Voting Stock of which is owned, directly or indirectly, by such
Person or by one or more other Subsidiaries of such Person or by such Person and
one or more other Subsidiaries thereof or (ii) any other Person (other than a
corporation) in which such Person, or one or more other Subsidiaries of such
Person or such Person and one or more other Subsidiaries thereof, directly or
indirectly, has at least a majority ownership and voting power relating to the
policies, management and affairs thereof.
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code (S) (S)
---
77aaa-77bbbb), as in effect on the date of this Indenture, except as provided in
Section 10.03.
"Total Consolidated Indebtedness" means at any date of determination,
-------------------------------
an amount equal to (i) the accreted value of all Indebtedness, in the case of
any Indebtedness issued with original issue discount, plus (ii) the principal
amount of all Indebtedness, in the case of any other Indebtedness, of the
Company and the Restricted Subsidiaries outstanding as of the date of
determination.
"Total Equity Market Capitalization" of any Person means, as of any
----------------------------------
day of determination, the sum of (i) the product of (A) the aggregate number of
outstanding primary shares of common stock of such Person on such day (which
shall not include any options or warrants on, or securities convertible or
exchangeable into, shares of common stock of such Person) multiplied by (B) the
average closing price of such common stock
-22-
listed on a national securities exchange or the Nasdaq National Market System
over the 20 consecutive business days immediately preceding such day, plus (ii)
the liquidation value of any outstanding shares of preferred stock of such
Person on such day.
"Total Invested Capital" means, at any time of determination, the sum
----------------------
of, without duplication, (i) the total amount of equity contributed to the
Company as of the Issue Date (as set forth on the March 31, 1998 combined
balance sheet of the Company), plus (ii) irrevocable binding commitments to
purchase Capital Stock (other than Disqualified Stock) existing as of the Issue
Date, plus (iii) the aggregate net cash proceeds received by the Company from
capital contributions or the issuance or sale of Capital Stock (other than
Disqualified Stock but including Capital Stock issued upon the conversion of
convertible Indebtedness or from the exercise of options, warrants or rights to
purchase Capital Stock (other than Disqualified Stock)) subsequent to the Issue
Date, other than to a Restricted Subsidiary; provided, however, such aggregate
-------- -------
net cash proceeds received pursuant to this clause (iii) shall exclude any
amounts included as commitments to purchase Capital Stock in the preceding
clause (ii), plus (iv) the aggregate net cash proceeds received by the Company
or any Restricted Subsidiary from the sale, disposition or repayment of any
Investment made after the Issue Date and constituting a Restricted Payment in an
amount equal to the lesser of (a) the return of capital with respect to such
Investment and (b) the initial amount of such Investment, in either case, less
the cost of the disposition of such Investment, plus (v) an amount equal to the
consolidated net Investment on the date the Company and/or any of the Restricted
Subsidiaries in any Subsidiary that has been designated as an Unrestricted
Subsidiary after the Issue Date upon its redesignation as a Restricted
Subsidiary in accordance with Section 4.21, plus (vi) Total Consolidated
Indebtedness minus (vii) the aggregate amount of all Restricted Payments
(including any Designation Amount, but other than a Restricted Payment of the
type referred to in Section 4.06(b)(iii)(b) declared or made on or after the
Issue Date.
"Triton PCS Holdings, Inc." means, a Delaware corporation, that as of
------------------------
the Issue Date owns all of the issued and outstanding Capital Stock of the
Company.
"Trust Officer" means any officer within the corporate trust
-------------
department (or any successor group) of the Trustee including any vice president,
assistant vice president, assistant secretary or any other officer or assistant
officer of the Trustee customarily performing functions similar to those per-
-23-
formed by the persons who at that time shall be such officers, and also means,
with respect to a particular corporate trust matter, any other officer to whom
such trust matter is referred because of his knowledge of and familiarity with
the particular subject.
"Trustee" means the party named as such in this Indenture until a
-------
successor replaces it in accordance with the provisions of this Indenture and
thereafter means such successor.
"Unrestricted Global Securities" means one or more Global Securities
------------------------------
that do not and are not required to bear the Securities Act Legend.
"Unrestricted Physical Securities" means one or more Physical
--------------------------------
Securities that do not and are not required to bear the Securities Act Legend.
"Unrestricted Securities" means the Securities that do not and are not
-----------------------
required to bear the Securities Act Legend.
"Unrestricted Subsidiary" means any Subsidiary of the Company (other
-----------------------
than the License Subsidiary, the Equipment Subsidiary or the Real Property
Subsidiary designated after the Issue Date as such pursuant to and in
compliance with Section 4.21. Any such designation may be revoked by a
Resolution of the Company delivered to the applicable Trustee, subject to the
provisions of Section 4.21.
"Vendor Credit Arrangement" means any Indebtedness (including, without
-------------------------
limitation, Indebtedness under any credit facility entered into with any vendor
or supplier or any financial institution acting on behalf of such vendor or
supplier); provided that the net proceeds of such Indebtedness are utilized
--------
solely for the purpose of financing the cost (including, without limitation, the
cost of design, development, site acquisition, construction, integration,
handset manufacture or acquisition or microwave relocation) of assets used or
usable in a Permitted Business (including, without limitation, through the
acquisition of Capital Stock of an entity engaged in a Permitted Business).
"Voting Stock" of any Person means the Capital Stock of such Person
------------
which ordinarily has voting power for the election of directors (or persons
performing similar functions) of such Person, whether at all times or only so
long as no senior
-24-
class of securities has such voting power by reason of any contingency.
"Wholly Owned Subsidiary" means a Restricted Subsidiary all of the
-----------------------
outstanding Capital Stock or other ownership interests of which (other than
directors' qualifying shares) shall at the time be owned by the Company and/or
by one or more Wholly Owned Subsidiaries.
SECTION 1.02. Other Definitions.
-----------------
Term Defined in Section
---- ------------------
" Bankruptcy Law" 6.01
" Change of Control" 4.14
" Corporate Trust Office" 2.02
" Custodian" 6.01
" Event of Default" 6.01
" Global Security" 2.01(a)
" Guarantor Blockage Period" 12.02(a)
" Guarantor Payment Blockage Notice" 12.02(a)
" 144A Global Security" 2.01(a)
" Paying Agent" 2.03
" Payment Blockage Notice" 8.02(a)
" Payment Blockage Period" 8.02(a)
" Physical Security" 2.01(b)
" Registrar" 2.03
" Regulation S Global Security" 2.01(a)
" Securities Act Legend" 2.06(f)
" Subsequent Securities" 2.02
" United States Government Obligation" 9.01
SECTION 1.03. Incorporation by Reference of Trust Indenture Act.
-------------------------------------------------
Whenever this Indenture refers to a provision of the TIA, the
provision is incorporated by reference in and made a part of this Indenture. The
following TIA terms used in this Indenture have the following meanings:
"Commission" means the Securities and Exchange Commission.
----------
"indenture securities" means the Securities.
--------------------
"indenture security holder" means a Holder or Securityholder.
-------------------------
-25-
"indenture to be qualified" means this Indenture.
-------------------------
"indenture trustee" or "institutional trustee" means the Trustee.
----------------- ---------------------
"obligor" on the indenture securities means the Company or any other
-------
obligor on the Securities.
All other TIA terms used in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by Commission rule
and not otherwise defined herein have the meanings assigned to them therein.
SECTION 1.04. Rules of Construction.
---------------------
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with generally accepted accounting principles
in effect from time to time, and any other reference in this Indenture to
"generally accepted accounting principles" refers to GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and words in the plural
include the singular;
(5) Section and Article references are to sections and articles of
this Indenture;
(6) provisions apply to successive events and transactions; and
(7) "herein," "hereof" and other words of similar import refer to
this Indenture as a whole and not to any particular Article, Section or
other subdivision.
-26-
ARTICLE TWO
THE SECURITIES
SECTION 2.01. Form and Dating.
---------------
(a) Global Securities. Securities offered and sold to QIBs in
-----------------
reliance on Rule 144A shall be issued initially substantially in the form of
Exhibit A hereto in the name of Cede & Co. as nominee of DTC, duly executed by
---------
the Company and authenticated by the Trustee as hereinafter provided. Such
Security shall be referred to herein as the "144A Global Security." Securities
--------------------
offered and sold in reliance on Regulation S shall be issued initially
substantially in the form of Exhibit A hereto in the name of Cede & Co. as
nominee of DTC, duly executed by the Company and authenticated by the Trustee as
hereinafter provided. Such Security shall be referred to herein as the
"Regulation S Global Security." Unrestricted Global Securities shall be issued
----------------------------
initially in accordance with Sections 2.06(b)(iv), 2.06(c)(ii) and 2.06(e) in
the name of Cede & Co. as nominee of DTC, duly executed by the Company and
authenticated by the Trustee as hereinafter provided. The 144A Global Security,
Regulation S Global Security and Unrestricted Global Security are collectively
referred to herein as the "Global Securities." The aggregate principal amount at
-----------------
maturity of each of the Global Securities may from time to time be increased or
decreased by adjustments made on the records of the Trustee as hereinafter
provided.
Each Global Security shall represent such of the outstanding
Securities as shall be specified therein and each shall provide that it shall
represent the aggregate principal amount at maturity of outstanding Securities
from time to time endorsed thereon and that the aggregate principal amount at
maturity of outstanding Securities represented thereby may from time to time be
reduced or increased, as appropriate, to reflect exchanges, redemptions and
transfers of interests therein in accordance with the terms of this Indenture.
Any endorsement of a Global Security to reflect the amount of any increase or
decrease in the principal amount at maturity of outstanding Securities
represented thereby shall be made by the Trustee or DTC, as applicable in
accordance with instructions given by the Holder thereof as required by Section
2.06.
Upon the issuance of the Global Security to DTC, DTC shall credit, on
its internal book-entry registration and transfer system, its Participants'
accounts with the respective interests owned by such Participants. Interests in
the Global
-27-
Securities shall be limited to Participants, including Euroclear and
Cedel, and indirect Participants.
The Participants shall not have any rights either under this Indenture
or under any Global Security with respect to such Global Security held on their
behalf by DTC, and DTC may be treated by the Company, the Trustee and any agent
of the Company or the Trustee as the absolute owner of such Global Security for
the purpose of receiving payment of or on account of the principal of and,
subject to the provisions of this Indenture, interest on the Global Securities
and for all other purposes. Notwithstanding the foregoing, nothing herein shall
prevent the Company, the Trustee or any agent of the Company or the Trustee from
giving effect to any written certification, proxy or other authorization
furnished by DTC or impair, as between DTC and its Participants, the operation
of customary practices of DTC governing the exercise of the rights of an owner
of a beneficial interest in any Global Security.
The provisions of the "Operating Procedures of the Euroclear System,"
"Terms and Conditions Governing Use of Euroclear," the "General Terms and
Conditions of Cedel Bank" and "Customer Handbook" of Cedel, and successors
provisions, shall be applicable to interests in the Regulation S Global Security
that are held by the Participants through Euroclear or Cedel.
(b) Physical Securities. Securities offered and sold to
-------------------
Institutional Accredited Investors who are not also QIBs shall be issued
substantially in the form of Exhibit A hereto, in certificated form and issued
---------
in the names of the purchasers thereof (or their nominees), duly executed by the
Company and authenticated by the Trustee as hereinafter provided. Securities in
certificated form shall be referred to herein as the "Physical Securities. "
-------------------
(c) Securities. The provisions of the form of Securities contained
----------
in Exhibit A hereto are incorporated herein by reference. The Securities and the
---------
Trustee's Certificates of Authentication shall be substantially in the form of
Exhibit A required by law, stock exchange rule or usage. The Company shall
---------
approve the form of the Securities and any notation, legend or endorsement
(including notations relating to the Guarantees) on them. If required, the
Securities shall bear the appropriate legend regarding original issue discount
for federal income tax purposes. Each Security shall be dated the date of its
authentication. The terms and provisions contained
-28-
in the Securities shall constitute, and are hereby expressly made, a part of
this Indenture .
SECTION 2.02. Execution and Authentication.
----------------------------
Two Officers of the Company shall sign the Securities for the Company
by manual or facsimile signature.
If an Officer whose signature is on a Security no longer holds that
office at the time the Trustee authenticates the Security, the Security shall be
valid nevertheless.
A Security shall not be valid until an authorized officer of the
Trustee manually signs the certificate of authentication on the Security. The
signature shall be conclusive evidence that the Security has been authenticated
under this Indenture.
The Trustee shall authenticate (i) Initial Global Securities for gross
proceeds to the Company of up to $300,000,000, (ii) Subsequent Securities in
accordance with this paragraph, (iii) Private Exchange Securities from time to
time only in exchange for a like principal amount at maturity of Initial Global
Securities or Subsequent Securities and (iv) Unrestricted Securities from time
to time only in exchange for a like principal amount at maturity of Initial
Global Securities or Subsequent Securities, in each case upon a written order
signed by an Officer of the Company. The order shall specify the amount of
Securities to be authenticated and the date on which the original issue of
Securities is to be authenticated. The order shall also provide instructions
concerning registration, amounts for each Holder and delivery. The Securities
outstanding at any time may not exceed $450,000,000 of aggregate gross proceeds
to the Company (except as provided in Section 2.07) consisting of (i)
$300,000,000 aggregate gross proceeds to the Company for Securities being
offered on the Issue Date and (ii) one or more additional series of Securities
(the "Subsequent Securities") consisting of aggregate gross proceeds to the
Company not to exceed $150,000,000. The Subsequent Securities may be issued
from time to time to time only in compliance with the provisions of Section 4.04
and the other provisions of this Indenture. The Securities shall be issued only
in registered form, without coupons and only in denominations of $1,000 and any
integral multiple thereof.
-29-
SECTION 2.03. Registrar and Paying Agent.
--------------------------
The Company shall maintain an office or agency where Securities may be
presented for registration of transfer or for exchange ("Registrar") and an
---------
office or agency where Securities may be presented for payment ("Paying Agent").
------------
The Company may have one or more co-Registrars and one or more additional paying
agents. The term "Paying Agent" includes any additional paying agent.
The Company shall enter into an appropriate agency agreement with any
Agent not a party to this Indenture. The agreement shall implement the
provisions of this Indenture that relate to such Agent and shall, if required,
incorporate the provisions of the TIA. The Company shall notify the Trustee in
writing of the name and address of any such Agent. If the Company fails to
maintain a Registrar or Paying Agent, the Trustee shall act as such and shall be
entitled to appropriate compensation in accordance with the provisions of
Section 7.07.
The Company initially appoints the Trustee as Registrar and Paying
Agent. The Company shall give written notice to the Trustee in the event that
the Company decides to act as Registrar. None of the Company, its Subsidiaries
or any of their Affiliates may act as Paying Agent.
SECTION 2.04. Paying Agent To Hold Money in Trust.
-----------------------------------
The Company shall require each Paying Agent to agree in writing to
hold in trust for the benefit of Securityholders or the Trustee all money held
by the Paying Agent for the payment of principal of or interest on the
Securities (whether such money has been paid to it by the Company or any other
obligor on the Securities), and the Company and the Paying Agent shall each
notify the Trustee in writing of any default by the Company (or any other
obligor on the Securities) in making any such payment. The Company at any time
may require a Paying Agent to pay all money held by it to the Trustee and
account for any funds disbursed and the Trustee may at any time during the
continuance of any payment default, upon written request to a Paying Agent,
require such Paying Agent to pay all money held by it to the Trustee and to
account for any funds disbursed. Upon making such payment the Paying Agent shall
have no further liability for the money delivered to the Trustee.
-30-
SECTION 2.05. Securityholder Lists.
--------------------
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
Securityholders. If the Trustee is not the Registrar, the Company shall furnish
to the Trustee at least five Business Days before each Interest Payment Date and
at such other times as the Trustee may request in writing a list in such form
and as of such date as the Trustee may reasonably require of the names and
addresses of Securityholders.
SECTION 2.06. Transfer and Exchange.
---------------------
(a) Transfer and Exchange of Global Securities. Transfer of the
------------------------------------------
Global Securities shall be by delivery. Global Securities will be exchanged by
the Company for Physical Securities only (i) if DTC notifies the Company that it
is unwilling or unable to continue to act as depositary with respect to the
Global Securities or ceases to be a clearing agency registered under the
Exchange Act and, in either case, a successor depositary registered as a
clearing agency under the Exchange Act is not appointed by the Company within
120 days, (ii) at any time if the Company in its sole discretion determines that
the Global Securities (in whole but not in part) should be exchanged for
Physical Securities or (iii) if the owner of an interest in the Global
Securities requests such Physical Securities, following an Event of Default
under the Indenture, in a writing delivered through DTC to the Trustee.
Upon the occurrence of any of the events specified in the previous
paragraph, Physical Securities shall be issued in such names as DTC shall
instruct the Trustee in writing and the Trustee shall cause the aggregate
principal amount at maturity of the applicable Global Security to be reduced
accordingly and direct DTC to make a corresponding reduction in its book-entry
system. The Company shall execute and the Trustee shall authenticate and make
available for delivery to the Person designated in the instructions a Physical
Security in the appropriate principal amount. The Trustee shall make available
for delivery such Physical Securities to the Persons in whose names such
Securities are so registered. Physical Securities issued in exchange for an
Initial Global Security pursuant to this Section 2.06(a) shall bear the
Securities Act Legend and shall be subject to all restrictions on transfer
contained therein. Global Securities may also be exchanged or replaced, in whole
or in part, as provided in Sections 2.07 and 2.10. Every Security authenticated
and made available for delivery in exchange for, or in lieu of, a Global
Security or any portion thereof,
-31-
pursuant to Section 2.07 or 2.10, shall be authenticated and made available for
delivery in the form of, and shall be, a Global Security. A Global Security may
not be exchanged for another Security other than as provided in this Section
2.06(a).
(b) Transfer and Exchange of Interests in Global Securities. The
-------------------------------------------------------
transfer and exchange of interests in Global Securities shall be effected
through DTC, in accordance with this Indenture and the procedures of DTC
therefor. Interests in Initial Global Securities shall be subject to
restrictions on transfer comparable to those set forth herein to the extent
required by the Securities Act. The Trustee shall have no obligation to
ascertain DTC's compliance with any such restrictions on transfer. Transfers of
interests in Global Securities shall also require compliance with subparagraph
(i) below, as well as one or more of the other following subparagraphs as
applicable:
(i) All Transfers and Exchanges of Interests in Global Securities.
-------------------------------------------------------------
In connection with all transfers and exchanges of interests in Global
Securities (other than transfers of interests in a Global Security to
Persons who take delivery thereof in the form of an interest in the same
Global Security), the transferor of such interest must deliver to the
Registrar (1) instructions given in accordance with the Applicable
Procedures from a Participant or an indirect Participant directing DTC to
credit or cause to be credited an interest in the specified Global Security
in an amount equal to the interest to be transferred or exchanged, (2) a
written order given in accordance with the Applicable Procedures containing
information regarding the Participant account to be credited with such
increase and (3) instructions given by the Holder of the Global Security to
effect the transfer referred to in (1) and (2) above.
(ii) Transfer of Interests in the Same Initial Global Security.
---------------------------------------------------------
Interests in any Initial Global Security may be transferred to Persons who
take delivery thereof in the form of an interest in the same Initial Global
Security in accordance with the transfer restrictions set forth in Section
2.06(f) hereof.
(iii) Transfer of Interests to Another Initial Global Security.
--------------------------------------------------------
Interests in any Initial Global Security may be transferred to Persons who
take delivery thereof in the form of an interest in another Initial Global
Security if the Registrar receives the following:
-32-
(A) if the transferee will take delivery in the form of an
interest in the 144A Global Security, then the transferor must deliver
a certificate in the form of Exhibit B hereto, including the
---------
certifications in item 1 thereof; or
(B) if the transferee will take delivery in the form of an
interest in the Regulation S Global Security, then the transferor must
deliver a certificate in the form of Exhibit B hereto, including the
---------
certifications in item 2 thereof.
(iv) Transfer and Exchange of Interests in Initial Global Security
-------------------------------------------------------------
for Interests in an Unrestricted Global Security. Interests in any Initial
------------------------------------------------
Global Security may be exchanged by the holder thereof for an interest in
the Unrestricted Global Security or transferred to a Person who takes
delivery thereof in the form of an interest in the Unrestricted Global
Security if:
(A) such exchange or transfer is effected pursuant to the
Exchange Registration Statement in accordance with the Registration
Rights Agreement;
(B) any such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration Rights
Agreement; or
(C) the Registrar receives the following:
(1) if the holder of such an interest in an Initial
Global Security proposes to exchange it for an interest in the
Unrestricted Global Security, a certificate from such Holder in
the form of Exhibit C hereto, including the certifications in
---------
item 1(a) thereof;
(2) if the holder of such an interest in an Initial
Global Security proposes to transfer it to a Person who shall
take delivery thereof in the form of an interest in an
Unrestricted Global Security, a certificate in the form of
Exhibit B hereto, including the certification in item 4
thereof; and
(3) in each such case set forth in this paragraph (C), an
Opinion of Counsel in form reasonably acceptable to the Company,
to the ef-
-33-
fect that such exchange or transfer is in compliance with the
Securities Act and that the restrictions on transfer contained
herein and in Section 2.06(f) hereof are not required in order to
maintain compliance with the Securities Act.
If any such transfer is effected pursuant to paragraph (B) above at a time
when an Unrestricted Global Security has not yet been issued, the Company
shall issue and, upon receipt of an authentication order in accordance with
Section 2.02, the Trustee shall authenticate one or more Unrestricted
Global Securities in an aggregate principal amount at maturity equal to the
principal amount at maturity of interests in the Initial Global Security
transferred pursuant to paragraph (B) above.
(v) Notation by the Trustee of Transfer of Interests Among Global
-------------------------------------------------------------
Securities. Upon satisfaction of the requirements for transfer of
----------
interests in Global Securities pursuant to clauses (iii) or (iv) above, the
Trustee, as Registrar, shall reduce or cause to be reduced the aggregate
principal amount at maturity of the relevant Global Security from which the
interests are being transferred, and increase or cause to be increased the
aggregate principal amount at maturity of the Global Security to which the
interests are being transferred, in each case, by the principal amount at
maturity so transferred and shall direct DTC to make corresponding
adjustments in its book-entry system. No transfer of interests of a Global
Security shall be effected until, and any transferee pursuant thereto shall
succeed to the rights of a holder of such interests only when, the
Registrar has made appropriate adjustments to the applicable Global
Security in accordance with this paragraph.
(c) Transfer or Exchange of Physical Securities for Interests in a
--------------------------------------------------------------
Global Security.
---------------
(i) If any Holder of Physical Securities required to contain the
Securities Act Legend proposes to exchange such Securities for an interest
in a Global Security or to transfer such Physical Securities to a Person
who takes delivery thereof in the form of an interest in a Global Security,
then, upon receipt by the Registrar of the following documentation (all of
which may be submitted by facsimile):
-34-
(A) if the Holder of such Physical Registered Securities
proposes to exchange such Securities for an interest in an Initial
Global Security, a certificate from such Holder in the form of Exhibit
-------
C hereto, including the certifications in item 2 thereof;
-
(B) if such Physical Securities are being transferred to a QIB
in accordance with Rule 144A under the Securities Act, a certificate
to the effect set forth in Exhibit B hereto, including the
---------
certifications in item 1 thereof; or
(C) if such Physical Securities are being transferred to a Non-
U.S. Person (as defined in Regulation S) in an offshore transaction in
accordance with Rule 904 under the Securities Act, a certificate to
the effect set forth in Exhibit B hereto, including the certifications
---------
in item 2 thereof,
the Trustee shall cancel the Physical Securities, increase or cause to be
increased the aggregate principal amount at maturity of, in the case of
clause (B) above, the 144A Global Security, in the case of clause (C)
above, the Regulation S Global Security, and direct DTC to make a
corresponding increase in its book-entry system.
(ii) A Holder of Physical Securities required to contain the
Securities Act Legend may exchange such Securities for an interest in the
Unrestricted Global Security or transfer such Restricted Physical
Securities to a Person who takes delivery thereof in the form of an
interest in the Unrestricted Global Security only:
(A) if such exchange or transfer is effected pursuant to the
Exchange Registration Statement in accordance with the Registration
Rights Agreement;
(B) any such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration Rights
Agreement;
(C) upon receipt by the Registrar of the following documentation
(all of which may be submitted by facsimile):
(1) if the Holder of such Physical Securities proposes to
exchange such Securities for an
-35-
interest in the Unrestricted Global Security, a certificate from
such Holder in the form of Exhibit C hereto, including the
---------
certifications in item 1(b) thereof;
(2) if the Holder of such Registered Securities proposes to
transfer such Securities to a Person who shall take delivery
thereof in the form of an interest in the Unrestricted Global
Security, a certificate in the form of Exhibit B hereto,
---------
including the certifications in item 4 thereof; and
(3) in each such case set forth in this paragraph (C), an
Opinion of Counsel in form reasonably acceptable to the Company,
to the effect that such exchange or transfer is in compliance
with the Securities Act and that the restrictions on transfer
contained herein and in Section 2.06(f) hereof are not required
in order to maintain compliance with the Securities Act.
If any such transfer is effected pursuant to paragraph (B) above
at a time when an Unrestricted Global Security has not yet been
issued, the Company shall issue and, upon receipt of an
authentication order in accordance with Section 2.02, the Trustee
shall authenticate one or more Unrestricted Global Securities in
an aggregate principal amount at maturity equal to the principal
amount at maturity of Physical Securities transferred pursuant to
paragraph (B) above.
(d) Transfer and Exchange of Physical Securities.
--------------------------------------------
(i) Transfer of a Physical Security to Another Physical Security.
------------------------------------------------------------
Following the occurrence of one or more of the events specified in Section
2.06(a), a Physical Security may be transferred to Persons who take
delivery thereof in the form of another Physical Security if the Registrar
receives the following:
(A) if the transfer is being effected pursuant to and in
accordance with Rule 144A, then the transferor must deliver a
certificate in the form of Exhibit B hereto, including the
---------
certifications in item 3(a) thereof; or
-36-
(B) if the transfer is being effected pursuant to and in
accordance with Regulation S, then the transferor must deliver a
certificate in the form of Exhibit B hereto, including the
---------
certifications in item 3(b) thereof.
(ii) Transfer and Exchange of Restricted Physical Securities for
-----------------------------------------------------------
Unrestricted Physical Securities. Following the occurrence of one or more
--------------------------------
of the events specified in Section 2.06(a), a Restricted Physical Security
may be exchanged by the Holder thereof for an Unrestricted Physical
Security or transferred to a Person who takes delivery thereof in the form
of an Unrestricted Physical Security if:
(A) such exchange or transfer is effected pursuant to the
Exchange Registration Statement in accordance with the Registration
Rights Agreement;
(B) any such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration Rights
Agreement; or
(C) the Registrar receives a certificate from such holder in the
form of Exhibit C hereto, including the certifications in item 1(c)
---------
thereof and an Opinion of Counsel in form reasonably acceptable to the
Company, to the effect that such exchange or transfer is in compliance
with the Securities Act and, that the restrictions on transfer
contained herein and in Section 2.06(f) hereof are not required in
order to maintain compliance with the Securities Act.
(iii) Exchange of Physical Securities. When Physical Securities
-------------------------------
are presented by a Holder to the Registrar with a request to register the
exchange of such Physical Securities for an equal principal amount at
maturity of Physical Securities of other authorized denominations, the
Registrar shall make the exchange as requested only if the Physical
Securities are endorsed or accompanied by a written instrument of transfer
in form satisfactory to the Registrar duly executed by such Holder or by
his attorney duly authorized in writing and shall be issued only in the
name of such Holder or its nominee. The Physical Securities issued in
exchange for Physical Securities shall bear the Securities Act Legend and
shall be subject to all re-
-37-
strictions on transfer contained herein in each case to the same extent as
the Physical Securities so exchanged.
(iv) Return of Physical Securities. In the event of a transfer
-----------------------------
pursuant to clauses (i) or (ii) above and the Holder thereof has delivered
certificates representing an aggregate principal amount at maturity of
Securities in excess of that to be transferred, the Company shall execute
and the Trustee shall authenticate and make available for delivery to the
Holder of such Security, without service charge, a new Physical Security or
Securities of any authorized denomination requested by the Holder, in an
aggregate principal amount at maturity equal to the portion of the Security
not so transferred.
(e) Exchange Offer. Upon the occurrence of the Exchange Offer (as
--------------
defined in the Registration Rights Agreement) in accordance with the
Registration Rights Agreement, the Company shall issue and, upon receipt of an
authentication order in accordance with Section 2.02, the Trustee shall
authenticate one or more Unrestricted Global Securities in an aggregate
principal amount at maturity equal to the principal amount of the interests in
the Initial Global Securities tendered for acceptance (and not withdrawn) by
persons participating therein. Concurrently with the issuance of such
Securities, the Trustee shall cause the aggregate principal amount at maturity
of the applicable Initial Global Securities to be reduced accordingly and direct
DTC to make a corresponding reduction in its book-entry system. The Trustee
shall cancel any Restricted Physical Certificates in accordance with Section
2.11 hereof.
In the case that one or more of the events specified in Section
2.06(a) have occurred, upon the occurrence of such Exchange Offer, the Company
shall issue and, upon receipt of an authentication order in accordance with
Section 2.02, the Trustee shall authenticate Unrestricted Physical Securities in
an aggregate principal amount at maturity equal to the principal amount of the
Restricted Physical Securities tendered for acceptance by persons participating
therein .
(f) Legends. Each Initial Global Security and each Restricted
-------
Physical Security shall bear the legend (the "Securities Act Legend") in
---------------------
substantially the following form:
"THE SECURITY (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED
IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND THE SECURITY
-38-
EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE
ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH
PURCHASER OF THE SECURITY EVIDENCED HEREBY IS HEREBY NOTIFIED THAT THE
SELLER MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF
THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER. THE HOLDER OF THE
SECURITY EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE COMPANY THAT (A)
SUCH SECURITY MAY BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (1)(a)
TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (b) IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144 UNDER THE SECURITIES ACT OR (c)
OUTSIDE THE UNITED STATES TO A FOREIGN PERSON IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 904 UNDER THE SECURITIES ACT, (2) TO THE COMPANY OR
(3) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT AND, IN EACH CASE, IN
ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED
STATES OR ANY OTHER APPLICABLE JURISDICTION AND (B) THE HOLDER WILL, AND
EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER FROM IT OF THE
SECURITY EVIDENCED HEREBY OF THE RESALE RESTRICTIONS SET FORTH IN (A)
ABOVE."
(g) Global Security Legend. Each Global Security shall bear a
----------------------
legend in substantially the following form:
"UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN
DEFINITIVE FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO A NOMINEE
OF DTC, OR BY ANY SUCH NOMINEE OF DTC, OR BY DTC TO A SUCCESSOR DEPOSITORY
OR A NOMINEE OF SUCH SUCCESSOR DEPOSITORY. UNLESS THIS CERTIFICATE IS
PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF DTC, TO THE COMPANY OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
-39-
"TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE,
BUT NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF OR
SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY
SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET
FORTH IN SECTION 2.06 OF THE INDENTURE."
(h) Cancellation and/or Adjustment of Global Securities. At such
---------------------------------------------------
time as all interests in the Global Securities have been exchanged for Physical
Securities, all Global Securities shall be returned to or retained and canceled
by the Trustee in accordance with Section 2.11 hereof. At any time prior to
such cancellation, if any interest in a Global Security is exchanged for an
interest in another Global Security or for Physical Securities, the principal
amount of Securities represented by such Global Security shall be reduced
accordingly and an endorsement shall be made on such Global Security, by the
Trustee to reflect such reduction.
(i) General Provisions Relating to All Transfers and Exchanges.
----------------------------------------------------------
(i) To permit registrations of transfers and exchanges, the
Company shall execute and the Trustee shall authenticate Global Securities
and Physical Securities upon a written order signed by an Officer of the
Company or at the Registrar's request.
(ii) No service charge shall be made to a Holder for any
registration of transfer or exchange, but the Company may require payment
of a sum sufficient to cover any stamp or transfer tax or similar
governmental charge payable in connection therewith (other than any such
stamp or transfer taxes or similar governmental charge payable upon
exchange or transfer pursuant to Sections 2.10, 3.06, 4.05, 4.14 and 10.05
hereof).
(iii) All Global Securities and Physical Securities issued upon
any registration of transfer or exchange of Global Securities or Physical
Securities shall be the valid obligations of the Company, evidencing the
same debt, and entitled to the same benefits under this Indenture, as the
Global Securities or Physical Securities surrendered upon such registration
of transfer or exchange.
(iv) The Company shall not be required (A) to issue, to register
the transfer of or to exchange Securities during a period beginning at the
opening of 15 Business Days
-40-
before the day of any mailing of notice of redemption of Securities under
Section 3.02 and ending at the close of business on the day of such
mailing, (B) to register the transfer of or to exchange any Security so
selected for redemption in whole or in part, except the unredeemed portion
of any Security being redeemed in part or (C) to register the transfer of
or to exchange a Security between a record date and the next succeeding
Interest Payment Date.
(v) Prior to due presentment for the registration of a transfer of
any Security, the Trustee, any Agent and the Company may deem and treat the
Person in whose name any Security is registered as the absolute owner of
such Security for the purpose of receiving payment of principal of and
interest on such Securities and for all other purposes, and none of the
Trustee, any Agent or the Company shall be affected by notice to the
contrary.
(vi) The Trustee shall have no obligation or duty to monitor,
determine or inquire as to compliance with any restrictions on transfer
imposed under this Indenture or under applicable law with respect to any
transfers of any interest in any Security (including any transfers between
or among Participants or beneficial owners of interests in any Global
Security) or Physical Security other than to require delivery of such
certificates and other documentation or evidence as are expressly required
by, and to do so if and when expressly required by the terms of, this
Indenture, and to examine the same to determine substantial compliance as
to form with the express requirements hereof.
SECTION 2.07. Replacement Securities.
----------------------
If a mutilated Security is surrendered to the Trustee or if the
Holder of a Security claims that the Security has been lost, destroyed or
wrongfully taken, the Company shall issue and the Trustee shall authenticate a
replacement Security if the Trustee's requirements are met. The Holder shall
provide an indemnity bond in an amount sufficient in the judgment of the Company
and the Trustee to protect the Company, the Trustee or any Agent from any loss
which any of them may suffer if a Security is replaced may be required by the
Trustee or the Company. The Company and the Trustee each may charge such Holder
for its expenses in replacing such Security.
Every replacement Security is an additional obligation of the
Company.
-41-
SECTION 2.08. Outstanding Securities.
----------------------
Securities outstanding at any time are all Securities that have been
authenticated by the Trustee except for those canceled by it, those delivered to
it for cancellation and those described in this Section as not outstanding. A
Security does not cease to be outstanding because the Company or one of its
Affiliates holds the Security.
If a Security is replaced pursuant to Section 2.07, it ceases to be
outstanding unless the Trustee receives proof satisfactory to it that the
replaced Security is held by a bona fide purchaser.
If the Paying Agent holds on a redemption date or Maturity Date money
sufficient to pay the principal amount at maturity of or Accreted Value, on the
Securities, and interest on Securities payable on that date, then on and after
that date such Securities cease to be outstanding and interest on them ceases to
accrue.
SECTION 2.09. Treasury Securities.
-------------------
In determining whether the Holders of the required principal amount at
maturity of Securities have concurred in any direction, waiver or consent,
Securities owned by the Company, any Subsidiary or any of their respective
Affiliates shall be disregarded, except that for the purposes of determining
whether the Trustee shall be protected in relying on any such direction, waiver
or consent, only Securities that the Trustee actually knows are so owned shall
be so disregarded.
The Trustee may require an Officers' Certificate listing securities
owned by the Company, any Subsidiary or any of their respective Affiliates.
SECTION 2.10. Temporary Securities.
--------------------
Until definitive Securities are ready for delivery, the Company may
prepare and the Trustee shall authenticate temporary Securities. Temporary
Securities shall be substantially in the form of definitive Securities but may
have variations that the Company considers appropriate for temporary Securities.
Without unreasonable delay, the Company shall prepare and the Trustee shall
authenticate definitive Securities in exchange for temporary Securities. Until
such exchange, temporary Securities shall be entitled to the same rights,
benefits and privileges as definitive Securities.
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SECTION 2.11. Cancellation.
------------
The Company at any time may deliver Securities to the Trustee for
cancellation. The Registrar and the Paying Agent shall forward to the Trustee
any Securities surrendered to them for transfer, exchange or payment. The
Trustee and no one else shall cancel all Securities surrendered for transfer,
exchange, payment or cancellation. The Company may not issue new Securities to
replace, reissue or resell Securities which the Company has redeemed, paid,
purchased on the open market or otherwise, or otherwise acquired or have been
delivered to the Trustee for cancellation. The Trustee (subject to the record-
retention requirements of the Exchange Act) may, but shall not be required to,
destroy canceled Securities.
SECTION 2.12. Defaulted Interest.
------------------
If the Company defaults in a payment of interest on the Securities, it
shall pay the defaulted interest, plus any interest payable on the defaulted
interest pursuant to Section 4.01 hereof, to the persons who are Securityholders
on a subsequent special record date, and such term, as used in this Section 2.12
with respect to the payment of any defaulted interest, shall mean the fifteenth
day next preceding the date fixed by the Company for the payment of defaulted
interest, whether or not such day is a Business Day. At least 15 days before
such special record date, the Company shall mail to each Securityholder and to
the Trustee a notice that states such special record date, the payment date and
the amount of defaulted interest to be paid.
SECTION 2.13. CUSIP or CINS Number.
--------------------
The Company in issuing the Securities may use a "CUSIP" or "CINS"
number, and if so, such CUSIP or CINS number shall be included in notices of
redemption or exchange as a convenience to Holders; provided, however, that any
such notice-------- -------may state that no representation is made as to the
correctness or accuracy of the CUSIP or CINS number printed in the notice or on
the Securities, and that reliance may be placed only on the other identification
numbers printed on the Securities. The Company will promptly notify the Trustee
of any change in the CUSIP or CINS number.
SECTION 2.14. Payments of Interest.
--------------------
(a) The Holder of a Physical Security at the close of business on the
regular record date with respect to any In-
-43-
terest Payment Date shall be entitled to receive the interest payable on such
Interest Payment Date notwithstanding any transfer or exchange of such Physical
Security subsequent to the regular record date and prior to such Interest
Payment Date, except if and to the extent the Company shall default in the
payment of the interest due on such Interest Payment Date, in which case such
defaulted interest shall be paid in accordance with Section 2.12; and in the
event of an exchange of a Physical Security for a beneficial interest in any
Global Security subsequent to a regular record date or any special record date
and prior to or on the related Interest Payment Date or other payment date under
Section 2.12, any payment of the interest payable on such payment date with
respect to any such Physical Security shall be made to the Person in whose name
such Physical Security was registered on such record date. Payments of interest
on the Global Securities will be made on each Interest Payment Date to the
Holder of the Global Security on the record date with respect thereto; provided,
--------
however, that, in the event of an exchange of all or a portion of a Global
-------
Security for a Physical Security subsequent to the regular record date or any
special record date and prior to or on the related Interest Payment Date or
other payment date under Section 2.12, any payment of interest payable on such
Interest Payment Date or other payment date with respect to the Physical
Security shall be made to the Holder of the Global Security as of the applicable
record date.
(b) Subject to Section 4.01, interest shall be paid to DTC, with
respect to any Global Security held by DTC, on the applicable Interest Payment
Date in accordance with instructions received from DTC at least five Business
Days before the applicable Interest Payment Date.
ARTICLE THREE
REDEMPTION
SECTION 3.01. Notices to Trustee.
------------------
If the Company elects to redeem Securities pursuant to paragraph 5 of
the Securities at the applicable redemption price set forth thereon, it shall
notify the Trustee in writing of the redemption date and the principal amount of
Securities to be redeemed.
The Company shall give the notice provided for in this Section 3.01 at
least 45 days before the redemption date
-44-
(unless a shorter notice shall be agreed to by the Trustee in writing) but not
more than 60 days before the redemption date, together with an Officers'
Certificate stating that such redemption will comply with the conditions
contained herein.
SECTION 3.02. Selection of Securities To Be Redeemed.
--------------------------------------
If less than all of the Securities are to be redeemed pursuant to
paragraph 5 thereof, the Trustee shall select the Securities to be redeemed, in
accordance with the rules of any national securities exchange on which the
Securities may be listed or, if the Securities are not so listed, pro rata or by
--- ----
lot or in such other manner as the Trustee shall deem appropriate and fair. The
Trustee shall make the selection from the Securities then outstanding, subject
to redemption and not previously called for redemption. The Trustee may select
for redemption portions (equal to $1,000 or any integral multiple thereof) of
the principal amount at maturity of Securities that have denominations larger
than $1,000. Provisions of this Indenture that apply to Securities called for
redemption also apply to portions of Securities called for redemption.
SECTION 3.03. Notice of Redemption.
--------------------
At least 30 days but not more than 60 days before a redemption date,
the Company shall mail a notice of redemption by first class mail to each Holder
whose Securities are to be redeemed.
The notice shall identify the Securities to be redeemed and shall
state:
(1) the redemption date;
(2) the redemption price;
(3) the CUSIP number (subject to Section 2.13);
(4) the name and address of the Paying Agent to which the Securities are
to be surrendered for redemption;
(5) that Securities called for redemption must be surrendered to the
Paying Agent to collect the redemption price;
(6) that, unless the Company defaults in making the redemption payment,
interest on Securities called for redemption ceases to accrue on and after
the redemption date and the only remaining right of the Holders is to
receive
-45-
payment of the redemption price upon surrender to the Paying Agent; and
(7) if any Security is being redeemed in part, the portion of the
principal amount at maturity of such Security to be redeemed and that,
after the redemption date, upon surrender of such Security, a new Security
or Securities in principal amount at maturity equal to the unredeemed
portion thereof will be issued.
At the Company's request, the Trustee shall give the notice of
redemption on behalf of the Company, in the Company's name and at the Company's
expense.
SECTION 3.04. Effect of Notice of Redemption.
------------------------------
Once a notice of redemption is mailed, Securities called for
redemption become due and payable on the redemption date and at the redemption
price. Upon surrender to the Paying Agent, such Securities shall be paid at the
redemption price, plus accrued interest thereon to the redemption date, but
interest installments whose maturity is on or prior to such redemption date
shall be payable to the Holders of record at the close of business on the
relevant record dates referred to in the Securities. The Trustee shall not be
required to (i) issue, authenticate, register the transfer of or exchange any
Security during a period beginning 15 days before the date a notice of
redemption is mailed and ending at the close of business on the date the
redemption notice is mailed, or (ii) register the transfer or exchange of any
Security so selected for redemption in whole or in part, except the unredeemed
portion of any Security being redeemed in part.
SECTION 3.05. Deposit of Redemption Price.
---------------------------
On or prior to the redemption date, the Company shall deposit with the
Paying Agent money sufficient to pay the redemption price of and accrued
interest on all Securities to be redeemed on that date other than Securities or
portions thereof called for redemption on that date which have been delivered by
the Company to the Trustee for cancellation. If the Company complies with the
provisions of this paragraph, on and after the redemption date, interest shall
cease to accrue on the Securities or the portions of the Securities called for
redemption.
-46-
SECTION 3.06. Securities Redeemed in Part.
---------------------------
Upon surrender of a Security that is redeemed in part, the Trustee
shall authenticate for the Holder a new Security equal in principal amount at
maturity to the unredeemed portion of the Security surrendered.
ARTICLE FOUR
COVENANTS
SECTION 4.01. Payment of Securities.
---------------------
The Company shall pay the principal of and interest on the Securities
in the manner provided in the Securities. An installment of principal or
interest shall be considered paid on the date due if the Trustee or Paying Agent
holds on that date money designated for and sufficient to pay the installment in
full and is not prohibited from paying such money to the Holders of the
Securities pursuant to the terms of this Indenture.
The Company shall pay interest on overdue principal at the same rate
per annum borne by the Securities. The Company shall pay interest on
--- -----
overdue installments of interest at the same rate per annum borne by the
--- -----
Securities, to the extent lawful.
SECTION 4.02. Maintenance of Office or Agency.
-------------------------------
The Company shall maintain in the Borough of Manhattan, The City of
New York, an office or agency where Securities may be surrendered for
registration of transfer or exchange or for presentation for payment and where
notices and demands to or upon the Company in respect of the Securities and this
Indenture may be served. The Company shall give prompt written notice to the
Trustee of the location, and any change in the location, of such office or
agency. If at any time the Company shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices and demands may be made or served at the
address of the Trustee set forth in Section 13.02.
The Company may also from time to time designate one or more other
offices or agencies where the Securities may be
-47-
presented or surrendered for any or all such purposes and may from time to time
rescind such designations; provided, however, that no such designation or
-------- -------
rescission shall in any manner relieve the Company of its obligation to maintain
an office or agency in the Borough of Manhattan, The City of New York, for such
purposes. The Company shall give prompt written notice to the Trustee of any
such designation or rescission and of any change in the location of any such
other office or agency.
The Company hereby designates the office of the Trustee set forth in
Section 13.02 (the "Corporate Trust Office") as one such office or agency of the
Company in accordance with Section 2.03.
SECTION 4.03. Limitation on Transactions with Affiliates.
------------------------------------------
The Company will not, and will not cause or permit any Restricted
Subsidiary to, directly or indirectly, conduct any business or enter into, renew
or extend any transaction with any of their respective Affiliates or any
beneficial holder of 10% or more of any class of Capital Stock of the Company or
Triton PCS Holdings, Inc., including, without limitation, the purchase, sale,
lease or exchange of property, the rendering of any service, or the making of
any guarantee, loan, advance or Investment, either directly or indirectly,
unless the terms of such transaction are at least as favorable as the terms that
could be obtained at such time by the Company or such Restricted Subsidiary, as
the case may be, in a comparable transaction made on an arms'-length basis with
a Person that is not such an Affiliate; provided, however, that (x) in any
-------- -------
transaction involving aggregate consideration in excess of $10.0 million, the
Company shall deliver an Officers' Certificate to the Trustee stating that a
majority of the Disinterested Directors of either (i) the Board of Triton PCS
Holdings, Inc., if at the time of such transaction, the Company is a Subsidiary
of Triton PCS Holdings, Inc. or (ii) the Board of the Company, if, at the time
of such transaction the Company is not a Subsidiary of Triton PCS Holdings,
Inc., have determined, in their good faith judgment, that the terms of such
transaction are at least as favorable as the terms that could be obtained by the
Company or such Restricted Subsidiary, as the case may be, in a comparable
transaction made on an arms'-length basis between unaffiliated parties and (y)
if the aggregate consideration is in excess of $25.0 million, the Company shall
also deliver to the Trustee, prior to the consummation of the transaction, the
favorable written opinion of a nationally recognized accounting, appraisal or
investment banking firm as to
-48-
the fairness of the transaction to Holders, from a financial point of view.
Notwithstanding the foregoing, the restrictions set forth in this
Section 4.03 shall not apply to (i) transactions between or among Company and/or
any Restricted Subsidiaries, (ii) any Restricted Payment or Permitted Investment
permitted by Section 4.06, (iii) directors' fees, indemnification and similar
arrangements, officers' indemnification, employee stock option or employee
benefit plans and employee salaries and bonuses paid or created in the ordinary
course of business, (iv) any other agreement in effect on the Issue Date, as the
same shall be amended from time to time; provided that any material amendment
--------
shall be required to comply with the provisions of the preceding paragraph of
this Section 4.03, (v) transactions with AT&T Corporation or any of its
Affiliates (collectively, "AT&T") relating to the marketing or provision of
telecommunication services or related hardware, software or equipment on terms
that are no less favorable (when taken as a whole) to the Company or such
Restricted Subsidiary, as applicable, than those available from unaffiliated
third parties, (vi) transactions involving the leasing or sharing or other use
by the Company or any Restricted Subsidiary of communications network facilities
(including, without limitation, cable or fiber lines, equipment or transmission
capacity) of any Affiliate of the Company or any beneficial holder of 10% or
more of any class of Capital Stock of the Company or Triton PCS Holdings, Inc.
(such Affiliate or holder being a "Related Party") on terms that are no less
favorable (when taken as a whole) to the Company or such Restricted Subsidiary,
as applicable, than those available from such Related Party to unaffiliated
third parties, (vii) transactions involving the provision of telecommunication
services by a Related Party in the ordinary course of its business to the
Company or any Restricted Subsidiary, or by the Company or any Restricted
Subsidiary to a Related Party, on terms that are no less favorable (when taken
as a whole) to the Company or such Restricted Subsidiary, as applicable, than
those available from such Related Party to unaffiliated third parties, (viii)
any sales agency agreements pursuant to which an Affiliate has the right to
market any or all of the products or services of the Company or any of the
Restricted Subsidiaries, and (ix) customary commercial banking, investment
banking, underwriting, placement agent or financial advisory fees paid in
connection with services rendered to the Company and its subsidiaries in the
ordinary course.
-49-
SECTION 4.04. Limitation on Incurrence of Indebtedness.
----------------------------------------
The Company shall not, and shall not cause or permit any Restricted
Subsidiary to, directly or indirectly, Incur any Indebtedness (including
Acquired Indebtedness), except:
(i) Indebtedness of the Company, if immediately after giving effect
to the Incurrence of such Indebtedness and the receipt and application of
the net proceeds thereof (including, without limitation, the application or
use of the net proceeds therefrom to repay Indebtedness, consummate an
Asset Acquisition or make any Restricted Payment), (a) the ratio of (x)
Total Consolidated Indebtedness to (y) Annualized Pro Forma Consolidated
Operating Cash Flow would be less than (i) 7.0 to 1.0, if the Indebtedness
is to be incurred prior to July 1, 2004, or (ii) 6.0 to 1.0 if the
Indebtedness is to be incurred on or after July 1, 2004, or (b) in the case
of any incurrence of Indebtedness prior to July 1, 2004 only, Total
Consolidated Indebtedness would be equal to or less than 75% of Total
Invested Capital;
(ii) Indebtedness of the Company and the Restricted Subsidiaries
Incurred under one or more Senior Credit Facilities in an aggregate amount
at any one time outstanding not to exceed $425.0 million in the aggregate
for all such Senior Credit Facilities;
(iii) Indebtedness of the Company and its Restricted Subsidiaries
outstanding from time to time pursuant to any Vendor Credit Arrangement;
(iv) Indebtedness owed by the Company to any Restricted Subsidiary
or Indebtedness owed by a Restricted Subsidiary to the Company or another
Restricted Subsidiary; provided, however, that upon either (x) the transfer
-------- -------
or other disposition by such Restricted Subsidiary or the Company of any
Indebtedness so permitted under this clause (iv) to a Person other than the
Company or another Restricted Subsidiary or (y) the issuance (other than
directors' qualifying shares), sale, transfer or other disposition of
shares of Capital Stock or other ownership interests (including by
consolidation or merger) of such Restricted Subsidiary to a Person other
than the Company or another such Restricted Subsidiary, the exception
provided by this clause (iv) shall no longer be applicable to such
Indebtedness and such Indebtedness shall be deemed to have
-50-
been Incurred at the time of any such issuance, sale, transfer or other
disposition, as the case may be;
(v) Indebtedness of the Company or any Restricted Subsidiary under
any interest rate agreement to the extent entered into to protect the
Company or such Restricted Subsidiary from fluctuations in interest rates
on any other Indebtedness permitted under the Indenture (including the
Notes) and not for speculative purposes;
(vi) Indebtedness Incurred to Refinance any Indebtedness Incurred
under the prior clause (i) or (iii) above, the Notes or the Guarantees;
provided, however, that (x) such Indebtedness does not exceed the principal
-------- -------
amount (or accreted value, if less) of the Indebtedness so Refinanced plus
the amount of any premium required to be paid in connection with such
Refinancing pursuant to the terms of the Indebtedness being Refinanced or
the amount of any premium reasonably determined by the issuer of such
Indebtedness as necessary to accomplish such Refinancing by means of a
tender offer, exchange offer, or privately negotiated repurchase, plus the
expenses of such issuer reasonably incurred in connection therewith and
(y)(1) in the case of any Refinancing of Indebtedness that is pari passu
---- -----
with the Notes, such Refinancing Indebtedness is made pari passu with or
---- -----
subordinate in right of payment to the Notes, and, in the case of any
Refinancing of Indebtedness that is subordinate in right of payment to the
Notes, such Refinancing Indebtedness is subordinate in right of payment to
the Notes on terms no less favorable to the Holders than those contained in
the Indebtedness being Refinanced, (2) in either case, the Refinancing
Indebtedness by its terms, or by the terms of any agreement or instrument
pursuant to which such Indebtedness is issued, does not have an Average
Life that is less than the remaining Average Life of the Indebtedness being
Refinanced and (3) any Indebtedness Incurred to Refinance any Indebtedness
is Incurred by the obligor on the Indebtedness being Refinanced or by the
Company;
(vii) Indebtedness of the Company under the Private Exchange
Securities and Unrestricted Securities, each of which have been issued only
in exchange for a like principal amount at maturity of the Initial Global
Securities and Indebtedness of the Guarantors under the Guarantee incurred
in accordance with this Indenture;
-51-
(viii) Capital Lease Obligations of the Company or any Restricted
Subsidiary with respect to the leasing by the Company or any Restricted
Subsidiary of tower sites and equipment that is a fixture thereto;
provided, that such Capital Lease Obligations shall not exceed $25 million
--------
in aggregate principal amount at any time outstanding;
(ix) Indebtedness of the Company or any Restricted Subsidiary
consisting of a guarantee of Indebtedness of the Company or a Restricted
Subsidiary of the Company that was permitted to be incurred by another
provision of this Section 4.04;
(x) Indebtedness of the Company or any Restricted Subsidiary in
respect of statutory obligations, performance, surety or appeal bonds or
other obligations of a like nature incurred in the ordinary course of
business; and
(xi) Indebtedness of the Company not otherwise permitted to be
Incurred pursuant to clauses (i) through (x) above which, together with any
other outstanding Indebtedness Incurred pursuant to this clause (xi), has
an aggregate principal amount not in excess of $75 million at any time
outstanding.
Indebtedness of a person existing at the time such person becomes a Restricted
Subsidiary or which is secured by a Lien on an asset acquired by the Company or
a Restricted Subsidiary (whether or not such Indebtedness is assumed by the
acquiring person) shall be deemed incurred at the time the person becomes a
Restricted Subsidiary or at the time of the asset acquisition, as the case may
be.
For purposes of determining compliance with this Section 4.04, in the event that
an item of Indebtedness meets the criteria of more than one of the categories of
Indebtedness permitted pursuant to clauses (i) through (xi) above, the Company
shall, in its sole discretion, be permitted to classify such item of
Indebtedness in any manner that complies with this Section 4.04 and may from
time to time reclassify such item of Indebtedness in any manner that would
comply with this Section 4.04 at the time of such reclassification. Accrual of
interest and the accretion of accreted value will not be deemed to be an
incurrence of Indebtedness for purposes of this Section 4.04.
-52-
SECTION 4.05. Limitation on Certain Asset Dispositions.
----------------------------------------
The Company shall not, and shall not cause or permit any Restricted
Subsidiary to, directly or indirectly, make any Asset Dispositions unless: (i)
the Company or such Restricted Subsidiary, as the case may be, receives
consideration for such Asset Disposition at least equal to the Fair Market Value
of the assets sold or disposed of as determined by either (x) the Board of
Triton PCS Holdings, Inc., if at the time of such Asset Disposition, the Company
is a Subsidiary of Triton PCS Holdings, Inc. or (y) the Board of the Company if,
at the time of such Asset Disposition, the Company is not a Subsidiary of Triton
PCS Holdings, Inc., in good faith and evidenced by a resolution of such Board
filed with the Trustee; (ii) other than in the case of a Permitted Asset Swap,
not less than 75% of the consideration received by the Company or such
Restricted Subsidiary from the disposition consists of (x) cash or Cash
Equivalents, (y) the assumption of Indebtedness (other than non-recourse
Indebtedness or any Subordinated Indebtedness) of the Company or such Restricted
Subsidiary or other obligations relating to such assets (accompanied by the
irrevocable unconditional release of the Company or such Restricted Subsidiary
from all liability on the Indebtedness or other obligations assumed) or (z)
notes or other obligations received by the Company or such Restricted Subsidiary
from such transferee that are converted by the Company or such Restricted
Subsidiary into cash concurrently with the receipt of such notes or other
obligations (to the extent of the cash actually received by the Company); and
(iii) all Net Available Proceeds, less any amounts invested within 365 days of
such Asset Disposition to acquire all or substantially all of the assets of, or
a majority of the Voting Stock of, an entity primarily engaged in a Permitted
Business, to make a capital expenditure or to acquire other long-term assets
that are used or useful in a Permitted Business, are applied, on or prior to the
365th day after such Asset Disposition, unless and to the extent that the
Company shall determine to make an Offer to Purchase, to the permanent reduction
and prepayment of any Senior Debt of the Company then outstanding (including a
permanent reduction of the commitments in respect thereof). Any Net Available
Proceeds from any Asset Disposition which is subject to the immediately
preceding sentence that are not applied as provided in the immediately preceding
sentence shall be used promptly after the expiration of the 365th day after such
Asset Disposition (or earlier if the Company so elects), to make an Offer to
Purchase outstanding Notes at a purchase price in cash equal to (a) 100% of the
Accreted Value on the Purchase Date, if such Purchase Date is on or before May
1, 2003 and (b) 100% of the principal amount at
-53-
maturity plus accrued and unpaid interest to the Purchase Date, if such Purchase
Date is after May 1, 2003. Notwithstanding the foregoing, the Company may defer
making any Offer to Purchase outstanding Notes until there are aggregate
unutilized Net Available Proceeds from Asset Dispositions otherwise subject to
the two immediately preceding sentences equal to or in excess of $15.0 million
(at which time, the entire unutilized Net Available Proceeds from Asset
Dispositions otherwise subject to the two immediately preceding sentences, and
not just the amount in excess of $15.0 million, shall be applied as required
pursuant to this paragraph). Any remaining Net Available Proceeds following the
completion of the required Offer to Purchase may be used by the Company for any
other purpose (subject to the other provisions of the Indenture) and the amount
of Net Available Proceeds then required to be otherwise applied in accordance
with this covenant shall be reset to zero. The provisions of this Section 4.05
will not apply to a transaction consummated in compliance with the provisions of
Article Five of this Indenture.
Pending application as set forth above, the Net Available Proceeds of
any Asset Disposition may be invested in Cash or Cash Equivalents or used to
reduce temporarily Indebtedness outstanding under any revolving credit agreement
to which the Company is a party and pursuant to which it has incurred
Indebtedness.
In the event that the Company makes an Offer to Purchase the
Securities, the Company shall comply with any applicable securities laws and
regulations, including any applicable requirements of Section 14(e) of, and Rule
14e-1 under, the Exchange Act.
SECTION 4.06. Limitation on Restricted Payments.
---------------------------------
(a) The Company shall not, and shall not cause or permit any
Restricted Subsidiary to, directly or indirectly, on or prior to December 31,
2000,
(i) declare or pay any dividend, or make any distribution of any
kind or character (whether in cash, property or securities), in respect of
any class of Capital Stock of the Company excluding, any dividends or
distributions payable solely in shares of Qualified Stock of the Company or
in options, warrants or other rights to acquire Qualified Stock of the
Company,
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(ii) purchase, redeem or otherwise acquire or retire for value any
shares of Capital Stock of the Company, any options, warrants or rights to
purchase or acquire such shares or any securities convertible or
exchangeable into such shares (other than any such shares of Capital Stock,
options, warrants, rights or securities that are owned by the Company or a
Restricted Subsidiary),
(iii) make any Investment (other than a Permitted Investment) in
any Person, other than the Company or a Restricted Subsidiary, or
(iv) redeem, defease, repurchase, retire or otherwise acquire or
retire for value, prior to its scheduled maturity, repayment or any sinking
fund payment, Subordinated Indebtedness (each of the transactions described
in clauses (i) through (iv) (other than any exception to any such clause)
being a "Restricted Payment");
------------------
and at any time after December 31, 2000, the Company will not, and will not
cause or permit any Restricted Subsidiary to, directly or indirectly, make a
Restricted Payment if, at the time thereof:
(1) a Default or an Event of Default shall have occurred and be
continuing at the time of or after giving effect to such Restricted
Payment,
(2) immediately after giving effect to such Restricted Payment, the
Company could not Incur at least $1.00 of additional Indebtedness pursuant
to Section 4.04(i), and
(3) immediately after giving effect to such Restricted Payment, the
aggregate amount of all Restricted Payments declared or made on or after
the Issue Date (including any Designation Amount) exceeds the sum (without
duplication) of: (i) the amount of (x) the Consolidated Cash Flow of the
Company after December 31, 2000, through the end of the latest full fiscal
quarter for which consolidated financial statements of the Company are
available preceding the date of such Restricted Payment (treated as a
single accounting period) less (y) 150% of the cumulative Consolidated
Interest Expense of the Company after December 31, 2000, through the end of
the latest full fiscal quarter for which consolidated financial statements
of the Company are available preceding the date of such Restricted Payment
(treated as a single ac-
-55-
counting period), plus (ii) the aggregate net cash proceeds (other than
Excluded Cash Proceeds) received by the Company as a capital contribution
in respect of Qualified Stock or from the proceeds of a sale of Qualified
Stock made after the Issue Date (excluding in each case (x) the proceeds
from a sale of Qualified Stock to a Restricted Subsidiary and (y) the
proceeds from a sale, other than from a Public Sale, of Qualified Stock the
proceeds of which are applied to optionally redeem Notes on or prior to May
1, 2001), plus (iii) the aggregate net cash proceeds received by the
Company or any Restricted Subsidiary from the sale, disposition or
repayment (other than to the Company or a Restricted Subsidiary) of any
Investment made after the Issue Date and constituting a Restricted Payment
in an amount equal to the lesser of (x) the return of capital with respect
to such Investment and (y) the initial amount of such Investment, in either
case, less the cost of disposition of such Investment, plus (iv) an amount
equal to the consolidated net Investment on the date of Revocation made by
the Company and/or any of the Restricted Subsidiaries in any Subsidiary
that has been designated as an Unrestricted Subsidiary after the Issue Date
upon its redesignation as a Restricted Subsidiary in accordance with
Section 4.21. For purposes of the preceding clause (ii), the value of the
aggregate net cash proceeds received by the Company from, or as a capital
contribution in connection with, the issuance of Qualified Stock either
upon the conversion of convertible Indebtedness of the Company or any of
its Restricted Subsidiaries or in exchange for outstanding Indebtedness of
the Company or any of its Restricted Subsidiaries or upon the exercise of
options, warrants or rights will be the net cash proceeds received by the
Company or any of its Restricted Subsidiaries upon the issuance of such
Indebtedness, options, warrants or rights plus the incremental amount
received by the Company or any of its Restricted Subsidiaries upon the
conversions, exchange or exercise thereof. For purposes of the preceding
clause (iv), the value of the consolidated net Investment on the date of
Revocation shall be equal to the Fair Market Value of the aggregate amount
of the Company's and/or any Restricted Subsidiary's Investments in such
Subsidiary on the applicable date of Designation.
For purposes of determining the amount expended for Restricted Payments, cash
distributed shall be valued at the face amount thereof and property other than
cash shall be valued at its
-00-
Xxxx Xxxxxx Value on the date such Restricted Payment is made by the Company or
a Restricted Subsidiary, as the case may be.
(b) The foregoing provisions will not prohibit any of the following:
(i) the payment of any dividend or distribution within 60 days
after the date of declaration thereof, if at such date of declaration such
payment would comply with the provisions of this Indenture;
(ii) so long as no Default or Event of Default shall have occurred
and be continuing, the purchase, redemption, retirement or other
acquisition of any Capital Stock of the Company out of the net cash
proceeds of the substantially concurrent capital contribution to the
Company in connection with Qualified Stock or out of the net cash proceeds
received by the Company from the substantially concurrent issue or sale
(other than to a Restricted Subsidiary) of Qualified Stock; provided that
--------
(x) any such net cash proceeds shall be excluded from Section
4.06(a)(3)(ii), (y) such proceeds do not constitute Excluded Cash Proceeds
and (z) such proceeds, if from a sale other than a Public Sale, are not
applied to optionally redeem Notes on or prior to May 1, 2001;
(iii) so long as no Default or Event of Default shall have
occurred and be continuing, the purchase, redemption, retirement,
defeasance or other acquisition of Subordinated Indebtedness of the Company
made by exchange for or conversion into, or out of the net cash proceeds
received by the Company, or out of a capital contribution to the Company in
connection with a concurrent issue and sale (other than to a Restricted
Subsidiary) of (a) Qualified Stock (provided that (x) any such net cash
--------
proceeds are excluded from Section 4.06(a)(3)(ii), (y) such proceeds do not
constitute Excluded Cash Proceeds and (z) such proceeds, if from a sale
other than a Public Sale, are not applied to optionally redeem Notes on or
prior to May 1, 2001) or (b) other Subordinated Indebtedness of the Company
that has an Average Life equal to or greater than the Average Life of the
Subordinated Indebtedness being purchased, redeemed, retired, defeased or
otherwise acquired;
(iv) so long as no Default or Event of Default shall have occurred
and be continuing, the making of a direct or indirect Investment
constituting a Restricted Payment in an amount not to exceed the amount of
the proceeds of a
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concurrent capital contribution in respect of Qualified Stock or from the
issue or sale (other than to a Restricted Subsidiary) of Qualified Stock of
the Company; provided that (x) any such net cash proceeds are excluded from
--------
Section 4.06(a)(3)(ii), (y) such proceeds do not constitute Excluded Cash
Proceeds and (z) such proceeds, if from a sale other than a Public Sale,
are not applied to optionally redeem Notes on or prior to May 1, 2001; or
(v) so long as no Default or Event of Default has occurred and is
continuing, dividends or distributions by the Company to Triton PCS
Holdings, Inc. to be used to repurchase, redeem, acquire or retire for
value any Capital Stock of Triton PCS Holdings, Inc. held by any member of
management of Triton PCS Holdings, Inc., the Company or any of its
Subsidiaries pursuant to any management equity subscription agreement,
stock option agreement or other similar agreement; provided that (x) the
--------
aggregate amount of such dividends or distributions shall not exceed $2.0
million in any twelve-month period and (y) any unused amount in any twelve-
month period may be carried forward to one or more future periods.
Restricted Payments made pursuant to clauses (i) and (v) of the immediately
preceding paragraph (b) shall be included in making the determination of
available amounts under Section 4.06(a)(3) and Restricted Payments made pursuant
to (ii), (iii) and (iv) of the immediately preceding paragraph (b) shall not be
included in making the determination of available amounts under Section
4.06(a)(3).
SECTION 4.07. Corporate Existence.
-------------------
Subject to Article Five, the Company shall do or shall cause to be done
all things necessary to preserve and keep in full force and effect its corporate
existence and the corporate, partnership or other existence of each of its
Subsidiaries in accordance with the respective organizational documents of each
such Subsidiary and the rights (charter and statutory) and material franchises
of the Company and its Subsidiaries; provided, however, that the Company shall
-------- -------
not be required to preserve any such right or franchise, or the corporate
existence of any Subsidiary, if the Board of either (x) Triton PCS Holdings,
Inc. if at the time, the Company is a Subsidiary of Triton PCS Holdings, Inc. or
(y) the Board of the Company if at the time the Company is not a subsidiary of
Triton PCS Holdings, Inc., shall determine that the preservation thereof is no
longer desirable in the conduct of the business
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of the Company and its Subsidiaries, taken as a whole, and that the loss thereof
is not, and will not be, adverse in any material respect to the Holders;
provided, further, however, that a determination of either Board shall not be
-------- ------- -------
required in the event of a merger of one or more Wholly Owned Subsidiaries with
or into another Wholly Owned Subsidiary or another Person, if the surviving
Person is a Wholly Owned Subsidiary organized under the laws of the United
States or a State thereof or of the District of Columbia.
SECTION 4.08. Payment of Taxes and Other Claims.
---------------------------------
The Company shall pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, all material taxes, assessments and
governmental charges levied or imposed upon the Company or any of its
Subsidiaries or upon the income, profits or property of the Company or any of
its Subsidiaries; provided, however, that the Company shall not be required to
-------- -------
pay or discharge or claim whose amount, applicability or validity is being
contested in good faith by appropriate proceedings or where the failure to
effect such payment is not adverse in any material respect to the Holders.
SECTION 4.09. Notice of Defaults.
------------------
Within five days after becoming aware of any Default, if such Default
is then continuing, the Company shall promptly deliver an Officers' Certificate
to the Trustee specifying the details of such Default and the action which the
Company proposes to take with respect thereto.
SECTION 4.10. Maintenance of Properties.
-------------------------
The Company shall cause all material properties owned by or leased to
it or any of its Subsidiaries and used or useful in the conduct of its business
or the business of any of its Subsidiaries to be maintained and kept in normal
condition, repair and working order and supplied with all necessary equipment
and shall cause to be made all necessary repairs, renewals, replacements,
betterments and improvements thereof, all as in the judgment of the Company may
be necessary, so that the business carried on in connection therewith may be
properly and advantageously conducted at all times; provided, however, that
-------- -------
nothing in this Section 4.10 shall prevent the Company or any of its
Subsidiaries from discontinuing the use, operation or maintenance of any of such
properties, or disposing of any of them, if such discontinuance or disposal is,
in the judgment of
-59-
the Board or of the board of directors of the Subsidiary concerned, or of an
officer (or other agent employed by the Company or of any of its Subsidiaries)
of the Company or such Subsidiary having managerial responsibility for any such
property, desirable in the conduct of the business of the Company or any of its
Subsidiaries, and if such discontinuance or disposal is not adverse in any
material respect to the Holders.
SECTION 4.11. Compliance Certificate.
----------------------
The Company shall deliver to the Trustee within 45 days after the end
of each of the first three fiscal quarters of the Company and within 90 days
after the close of each fiscal year a certificate signed by the principal
executive officer, principal financial officer or principal accounting officer
stating that a review of the activities of the Company has been made under the
supervision of the signing officers with a view to determining whether a Default
or Event of Default has occurred and whether or not the signers know of any
Default by the Company that occurred during such fiscal quarter or fiscal year.
If they do know of such a Default, the certificate shall describe all such
Defaults, their status and the action the Company is taking or proposes to take
with respect thereto. The first certificate to be delivered by the Company
pursuant to this Section 4.11 shall be for the fiscal quarter ending June 30,
1998.
SECTION 4.12. Provision of Financial Information.
----------------------------------
Whether or not required by the rules and regulations of the
Commission, so long as any Notes are outstanding, the Company will furnish to
the Holders of Notes (i) all quarterly and annual financial information that
would be required to be contained in a filing with the Commission on Forms 10-Q
and 10-K if the Company were required to file such Forms, including a
"Management's Discussion and Analysis of Financial Condition and Results of
Operations" that describes the financial condition and results of operations of
the Company and its consolidated Subsidiaries and, with respect to the annual
information only, a report thereon by the Company's certified independent
accountants, and (ii) all current reports that would be required to be filed
with the Commission on Form 8-K if the Company were required to file such
reports, in each case within the time period specified in the Commission's rules
and regulations; provided that no such information or reports shall be required
--------
prior to the date on which the exchange offer registration statement is required
by the terms of the Registration Rights Agreement to be filed with the
Commission. In addition,
-60-
following the consummation of the exchange offer contemplated by the
Registration Rights Agreement, whether or not required by the rules and
regulations of the Commission, the Company will file a copy of all such
information and reports with the Commission for public availability within the
time periods specified in the Commission's rules and regulations (unless the
Commission will not accept such a filing) and make such information available to
securities analysts and prospective investors upon request. In addition, the
Company will, for so long as any Notes remain outstanding, furnish to the
Holders and to securities analysts and prospective investors, upon their
request, the information required to be delivered pursuant to Rule 144A(d)(4)
under the Securities Act.
SECTION 4.13. Waiver of Stay, Extension or Usury Laws.
---------------------------------------
The Company covenants (to the extent that it may lawfully do so) that
it shall not at any time insist upon, plead, or in any manner whatsoever claim
or take the benefit or advantage of, any stay or extension law or any usury law
or other law, which would prohibit or forgive the Company from paying all or any
portion of the principal of and/or interest on the Securities as contemplated
herein, wherever enacted, now or at any time hereafter in force, or which may
affect the covenants or the performance of this Indenture; and (to the extent
that it may lawfully do so) the Company hereby expressly waives all benefit or
advantage of any such law, and covenants that it shall not hinder, delay or
impede the execution of any power herein granted to the Trustee, but shall
suffer and permit the execution of every such power as though no such law had
been enacted.
SECTION 4.14. Change of Control.
-----------------
Within 30 days following the date of the consummation of a transaction
resulting in a Change of Control, the Company will commence an Offer to Purchase
all outstanding Securities at a purchase price in cash equal to (i) 101% of the
Accreted Value on the Purchase Date if such date is on or before May 1, 2003 and
(ii) 101% of the principal amount at maturity, plus accrued and unpaid interest,
if any, to the Purchase Date, if such date is after May 1, 2003. Such Offer to
Purchase will be consummated not earlier than 30 days and not later than 60 days
after the commencement thereof. Each Holder shall be entitled to tender all or
any portion of the Securities owned by such Holder pursuant to the Offer to
Purchase, subject to the requirement that any portion of a Security tendered
must be in an
-61-
integral multiple of $1,000 aggregate principal amount at maturity.
In the event that the Company makes an Offer to Purchase the
Securities, the Company shall comply with any applicable securities laws and
regulations, including any applicable requirements of Section 14(e) of, and Rule
14e-1 under, the Exchange Act. The Company will not be required to make an Offer
to Purchase upon a Change of Control if a third party makes the Offer to
Purchase in the manner, at the times and otherwise in compliance with the
requirements set forth in this Indenture applicable to an Offer to Purchase made
by the Company and purchases all Securities validly tendered and not withdrawn
under such Offer to Purchase.
SECTION 4.15. Limitation on Layered Debt.
--------------------------
The Company will not (i) directly or indirectly, Incur any
Indebtedness that by its terms would expressly rank senior in right of payment
to the Notes and rank subordinate in right of payment to any other Indebtedness
of the Company and (ii) cause or permit any Guarantor to, and no Guarantor will,
directly or indirectly, incur any Indebtedness that by its terms would expressly
rank senior in right of payment to the Guarantee of such Guarantor and rank
subordinate in right of payment to any other Indebtedness of such Guarantor;
provided, that no Indebtedness shall be deemed to be subordinated solely by
--------
virtue of being unsecured.
SECTION 4.16. Limitation on Restrictions Affecting Restricted Subsidiaries.
------------------------
The Company shall not, and shall not cause or permit any Restricted
Subsidiary to, directly or indirectly, create or otherwise cause or suffer to
exist any consensual encumbrance or restriction of any kind on the ability of
any Restricted Subsidiary to (i) pay, directly or indirectly, dividends, in cash
or otherwise, or make any other distributions in respect of its Capital Stock or
pay any Indebtedness or other obligation owed to the Company or any other
Restricted Subsidiary, (ii) make any Investment in the Company or any other
Restricted Subsidiary or (iii) transfer any of its property or assets to the
Company or any other Restricted Subsidiary, except for such encumbrances or
restrictions existing under or by reason of (a) any agreement in effect on the
Issue Date as any such agreement is in effect on such date, (b) any Senior
Credit Facilities, (c) any agreement relating to any Indebtedness Incurred by
such Restricted Subsidiary prior to the date on which
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such Restricted Subsidiary was acquired by the Company and outstanding on such
date and not Incurred in anticipation or contemplation of becoming a Restricted
Subsidiary; provided, however, that such encumbrance or restriction shall not
-------- -------
apply to any property or assets of the Company or any Restricted Subsidiary
other than such Restricted Subsidiary, (d) customary provisions contained in an
agreement which has been entered into for the sale or disposition of all or
substantially all of the Capital Stock or assets of a Restricted Subsidiary;
provided, however, that such encumbrance or restriction is applicable only to
-------- -------
such Restricted Subsidiary or its property and assets, (e) any agreement
effecting a Refinancing or amendment of Indebtedness Incurred pursuant to any
agreement referred to in clause (a) above; provided, however, that the
-------- -------
provisions contained in such Refinancing or amendment agreement relating to such
encumbrance or restriction are no more restrictive in any material respect than
the provisions contained in the agreement that is the subject thereof in the
reasonable judgment of (i) the Board of Triton PCS Holdings, Inc. if, at the
time of such Refinancing or amendment, the Company is a Subsidiary of Triton PCS
Holdings, Inc. or (ii) the Board of the Company if, at the time of such
Refinancing or amendment, the Company is not a Subsidiary of Triton PCS
Holdings, Inc., (f) the Indenture, (g) applicable law or any applicable rule,
regulation or order, (h) customary provisions restricting subletting or
assignment of any lease governing any leasehold interest of any Restricted
Subsidiary, (i) purchase money obligations for property acquired in the ordinary
course of business that impose restrictions of the type referred to in clause
(iii) of this Section 4.16; (j) restrictions of the type referred to in clause
(iii) of this Section 4.16 contained in security agreements securing
Indebtedness of a Restricted Subsidiary to the extent that such Liens were
otherwise incurred in accordance with Section 4.17 and restrict the transfer of
property subject to such agreements; or (k) customary provisions in joint
venture agreements and other similar agreements entered into in the ordinary
course of business.
SECTION 4.17. Limitation on Liens.
-------------------
The Company shall not, and shall not cause or permit any Restricted
Subsidiary to directly or indirectly, create, cause, incur or suffer to exist
any Lien on or with respect to any Capital Stock or any property or assets of
the Company or such Restricted Subsidiary owned on the Issue Date or thereafter
created or acquired to secure any Indebtedness, without making, or causing such
Restricted Subsidiary to make, effective provision for securing the Securities
and all other
-63-
amounts due under this Indenture equally and ratably with such Indebtedness or,
in the event such Indebtedness is Subordinated Indebtedness, prior to such
Indebtedness, as to such property or assets for so long as such Indebtedness
shall be so secured.
The foregoing restrictions shall not apply to (i) Liens existing on
the Issue Date securing Indebtedness existing on the Issue Date; (ii) Liens
securing Senior Debt (including Liens securing Indebtedness under any Senior
Credit Facilities) and any guarantees thereof to the extent that the
Indebtedness secured thereby is permitted to be incurred under Section 4.04;
(iii) Liens securing only the Securities and the Guarantees, if any; (iv) Liens
in favor of the Company or any Guarantor; (v) Liens to secure Indebtedness
Incurred in connection with Vendor Credit Agreements; (vi) Liens on property
existing immediately prior to the time of acquisition thereof (and not created
in connection with or in anticipation or contemplation of the financing of such
acquisition); (vii) Liens on property of a Person existing at the time such
Person is acquired or merged with or into or consolidated with the Company or
any such Restricted Subsidiary (and not created in connection with or in
anticipation or contemplation thereof); (viii) Liens to secure the performance
of statutory obligations, surety or appeal bonds or bid or performance bonds, or
landlords', carriers', warehousemen's, mechanics', suppliers', materialmen's or
other similar Liens, in any case incurred in the ordinary course of business and
with respect to amounts not yet delinquent or being contested in good faith by
appropriate process of law, if a reserve or other appropriate provision, if any,
as is required by GAAP shall have been made therefor; (ix) Liens for taxes,
assessments or governmental charges or claims that are not yet delinquent or
that are being contested in good faith by appropriate proceedings promptly
instituted and diligently concluded, provided that any reserve or other
--------
appropriate provision that shall be required in conformity with GAAP shall have
been made therefor; (x) Liens to secure Indebtedness Incurred to Refinance, in
whole or in part, any Indebtedness secured by Liens referred to in the foregoing
clauses (i)-(ix) so long as such Liens do not extend to any additional category
of property and the principal amount of Indebtedness so secured is not increased
except for the amount of any premium required to be paid in connection with such
Refinancing pursuant to the terms of the Indebtedness Refinanced or the amount
of any premium reasonably determined by the Company as necessary to accomplish
such Refinancing by means of a tender offer, exchange offer or privately
negotiated repurchase, plus the expenses of the issuer of such Indebtedness
reasonably incurred in connection with such Refinancing; and (xi) Liens in favor
of the Trustee
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as provided for in this Indenture on money or property held or collected by the
Trustee in its capacity as Trustee.
SECTION 4.18. Subsidiary Guarantees.
---------------------
The Company shall not permit any Subsidiary to become a direct or
indirect obligor under, or in respect of, any Senior Credit Facilities without
causing such Subsidiary to become a Guarantor. Any such Subsidiary shall (a)
execute and deliver a supplemental indenture in form reasonably satisfactory to
the Trustee pursuant to which such Subsidiary shall unconditionally guarantee
all of the Company's obligations under the Securities and this Indenture on the
terms set forth in Articles Eleven and Twelve and (b) deliver to the Trustee an
Opinion of Counsel that such supplemental indenture has been duly authorized,
executed and delivered by such Subsidiary and constitutes a valid and legally
binding and enforceable obligation of such Subsidiary (subject, in the case of
enforceability, to customary bankruptcy, insolvency, fraudulent conveyance and
similar exceptions).
Any Subsidiary of the Company that ceases to be a direct or indirect
obligor (including as guarantor) under, or in respect of all Senior Credit
Facilities shall be released from its Guarantee upon delivery of an Officers'
Certificate to the Trustee certifying to such effect.
The Company may, at its option, cause any of its Subsidiaries to be a
Guarantor.
SECTION 4.19 Limitation on Activities of the Company and the Restricted
--------------
Subsidiaries.
-------------
The Company shall not, and shall not permit any Restricted Subsidiary
to, engage in any business other than a Permitted Business, except to such
extent as is not material to the Company and its Restricted Subsidiaries, taken
as a whole.
SECTION 4.20 Amendments to Securities Purchase Agreement.
----------
Neither the Company nor Triton PCS Holdings, Inc. shall amend, modify
or waive, or refrain from enforcing, any provision of the Securities Purchase
Agreement dated October 8, 1997, as amended as of the date hereof, among AT&T
Wireless PCS Inc., the Cash Equity Investors (named therein), the Management
Stockholders (named therein) and Triton PCS Holdings, Inc., in any manner that
would materially alter the obligations of the
-65-
Cash Equity Investors or the Management Stockholders thereunder to provide
additional equity capital to Triton PCS Holdings, Inc. (and to further
contribute such equity capital to the Company in the form of Qualified Stock of
the Company) until such time as the Company has received subsequent to the Issue
Date, net cash proceeds from capital contributions, or sales, in respect of
Qualified Stock of the Company equal to at least $122 million; provided,
--------
however, such amount shall be reduced to $95 million in the event the Myrtle
-------
Beach System is not acquired by the Company on or prior to March 31, 1999
pursuant to the Myrtle Beach Acquisition Agreement.
SECTION 4.21 Limitation on Designations of Unrestricted
Subsidiaries.
------------------------------------------
The Company may designate any Subsidiary of the Company (other than
the License Subsidiary, the Real Property Subsidiary and the Equipment
Subsidiary) as an "Unrestricted Subsidiary" under this Indenture (a
"Designation") only if:
(i) no Default or Event of Default shall have occurred and be
continuing at the time of or after giving effect to such Designation; and
(ii) the Company would be permitted under this Indenture to make an
Investment at the time of Designation (assuming the effectiveness of such
Designation) in an amount (the "Designation Amount") equal to the Fair
Market Value of the aggregate amount of its Investments in such Subsidiary
on such date; and
(iii) except in the case of a Subsidiary in which an Investment is
being made pursuant to and as permitted by Section 4.06(b), the Company
would be permitted to incur $1.00 of additional Indebtedness pursuant to
clause (i) of Section 4.04 at the time of Designation (assuming the
effectiveness of such Designation).
In the event of any such Designation, the Company shall be deemed
to have made an Investment constituting a Restricted Payment pursuant to Section
4.06 for all purposes of this Indenture in the Designation Amount.
The Company shall not, and shall not permit any Restricted
Subsidiary to, at any time (x) provide direct or indirect credit support for or
a guarantee of any Indebtedness of any Unrestricted Subsidiary (including of any
undertaking, agreement or instrument evidencing such Indebtedness), (y) be
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directly or indirectly liable for any Indebtedness of any Unrestricted
Subsidiary or (z) be directly or indirectly liable for any Indebtedness which
provides that the holder thereof may (upon notice, lapse of time or both)
declare a default thereon or cause the payment thereof to be accelerated or
payable prior to its final scheduled maturity upon the occurrence of a default
with respect to any Indebtedness of any Unrestricted Subsidiary (including any
right to take enforcement action against such Unrestricted Subsidiary), except,
in the case of clause (x) or (y), to the extent permitted under Section 4.06.
The Company may revoke any Designation of a Subsidiary as an Unrestricted
Subsidiary (a "Revocation"), whereupon such Subsidiary shall then constitute a
Restricted Subsidiary, if:
(a) no Default shall have occurred and be continuing at the time of
and after giving effect to such Revocation; and
(b) all Liens and Indebtedness of such Unrestricted Subsidiary
outstanding immediately following such Revocation would, if incurred at
such time, have been permitted to be incurred for all purposes of this
Indenture.
All Designations and Revocations must be evidenced by Resolutions of the Company
delivered to the Trustee certifying compliance with the foregoing provisions.
ARTICLE FIVE
MERGERS; SUCCESSOR CORPORATION
SECTION 5.01. Restriction on Mergers, Consolidations
and Certain Sales of Assets.
--------------------------------------
The Company will not consolidate or merge with or into any Person, or
sell, assign, lease, convey or otherwise dispose of (or cause or permit any
Restricted Subsidiary to consolidate with or into any Person or sell, assign,
lease, convey or otherwise dispose of) all or substantially all of the Company's
assets (determined on a consolidated basis for the Company and the Restricted
Subsidiaries), whether as an entirety or substantially an entirety in one
transaction or a series of related transactions, including by way of liquidation
or dissolution, to any Person unless, in each such case: (i) the entity formed
by or surviving any such consolidation or
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merger (if other than the Company or such Restricted Subsidiary, as the case may
be), or to which such sale, assignment, lease, conveyance or other disposition
shall have been made (the "Surviving Entity"), is a corporation organized and
----------------
existing under the laws of the United States, any state thereof or the District
of Columbia; (ii) the Surviving Entity assumes by supplemental indenture all of
the obligations of the Company on the Securities and under this Indenture; (iii)
immediately after giving effect to such transaction and the use of any net
proceeds therefrom on a pro forma basis, the Company or the Surviving Entity, as
the case may be, could Incur at least $1.00 of additional Indebtedness pursuant
to Section 4.04(i); (iv) immediately after giving effect to such transaction and
treating any Indebtedness that becomes an obligation of the Company or any
Restricted Subsidiary as a result of such transaction as having been Incurred by
the Company or such Restricted Subsidiary, as the case may be, at the time of
the transaction, no Default or Event of Default shall have occurred and be
continuing; and (v) if, as a result of any such transaction, property or assets
of the Company or a Restricted Subsidiary would become subject to a Lien not
excepted from restrictions on Liens set forth in Section 4.17, the Company, the
Restricted Subsidiary or the Surviving Entity, as the case may be, shall have
secured the Securities as required by Section 4.17. The provisions of this
Section 5.01 shall not apply to any merger of a Restricted Subsidiary with or
into the Company or a Wholly Owned Subsidiary or the release of any Guarantor in
accordance with the terms of its Guarantee and this Indenture in connection with
any transaction complying with Section 4.05.
SECTION 5.02. Successor Corporation Substituted.
---------------------------------
Upon the execution of a supplemental indenture by the Surviving Person
in form and substance satisfactory to the Trustee (as evidenced by the Trustee's
execution thereof) in accordance with Section 5.01, the Surviving Person shall
succeed to, and be substituted for, and may exercise every right and power of
and shall assume all obligations of, the Company or such Subsidiary, as the case
may be, under this Indenture, the Registration Rights Agreement and the
Securities or the Guarantees, as the case may be, with the same effect as if
such Surviving Person had been named as the Company or such Subsidiary, as the
case may be, herein and therein, and thereafter, except in the case of a lease,
the predecessor Person shall be relieved of all obligations and covenants under
this Indenture, the Registration Rights Agreement and the Securities or the
Guarantees, as the case may be.
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ARTICLE SIX
DEFAULT AND REMEDIES
SECTION 6.01. Events of Default.
-----------------
An "Event of Default" occurs if:
(a) the Company fails to pay the Accreted Value or principal of (or
premium, if any, on) any Security when due (whether or not prohibited by
Article Eight or Twelve);
(b) the Company fails to pay any interest on any Security when due,
continued for 30 days (whether or not prohibited by Article Eight or
Twelve);
(c) the Company defaults in the payment of the Accreted Value or
principal of and interest on Securities required to be purchased pursuant
to an Offer to Purchase under Sections 4.05 or 4.14 hereof when due and
payable (whether or not prohibited by Article Eight or Twelve);
(d) the Company fails to perform or comply with any of the provisions
of Article Five;
(e) the Company fails to perform any other covenant or agreement of
the Company under this Indenture or the Securities continued for 60 days
after written notice to the Company by the Trustee or Holders of at least
25% in aggregate principal amount of outstanding Securities;
(f) the Company defaults under the terms of one or more instruments
evidencing or securing Indebtedness of the Company or any of its
Subsidiaries having an outstanding principal amount of $15.0 million or
more individually or in the aggregate that has resulted in the acceleration
of the payment of such Indebtedness or failure to pay principal when due at
the stated final maturity of any such Indebtedness;
(g) the rendering of a final judgment or judgments (not subject to
appeal) against the Company or any Restricted Subsidiary in an amount of
$15.0 million or more which remains undischarged or unstayed for a period
of 60 days after the date on which the right to appeal has expired;
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(h) the Company or any Material Subsidiary pursuant to or within the
meaning of any Bankruptcy Law:
(1) commences a voluntary case or proceeding,
(2) consents to the entry of an order for relief against it in an
involuntary case or proceeding,
(3) consents to the appointment of a Custodian of it or for all
or substantially all of its property, or
(4) makes a general assignment for the benefit of its creditors;
(i) a court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that:
(1) is for relief against the Company or any Material Subsidiary
in an involuntary case or proceeding,
(2) appoints a Custodian of the Company or any Material
Subsidiary or for all or substantially all of its property, or
(3) orders the liquidation of the Company or any Material
Subsidiary,
and in each case the order or decree remains unstayed and in effect for 60 days;
provided, however, that if the entry of such order or decree is appealed
-------- -------
and dismissed on appeal then the Event of Default hereunder by reason of
the entry of such order or decree shall be deemed to have been cured; or
(j) any Guarantee of a Material Subsidiary ceases to be in full force
and effect or is declared null and void and unenforceable or is found to be
invalid or any Guarantor denies its liability under its Guarantee (other than by
reason of a release of such Guarantor from its Guarantee in accordance with the
terms of this Indenture and such Guarantee).
The term "Bankruptcy Law" means Title 11, U.S. Code or any similar
--------------
Federal, state or foreign law for the relief of debtors. The term "Custodian"
---------
means any receiver, trustee, as-
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signee, liquidator, sequestrator or similar official under any Bankruptcy Law.
SECTION 6.02. Acceleration.
------------
If an Event of Default (other than an Event of Default with respect to
the Company specified in Section 6.01(h) or (i)) shall occur and be continuing,
either the Trustee or the Holders of at least 25% in aggregate principal amount
at maturity of the outstanding Securities by notice in writing to the Company
(and to the Trustee if given by the Holders) may declare the Accreted Value of
all of the outstanding Securities, together with all accrued and unpaid
interest, if any, thereon, as of such date of declaration to be immediately due
and payable (provided that Securities whose Accreted Value remains unpaid after
such date of declaration shall continue to accrete pursuant to the definition of
"Accreted Value" and accrue interest as provided in the Securities); provided,
--------
however, that after such acceleration, but before a judgment or decree based on
-------
acceleration, the Holders of a majority in aggregate principal amount at
maturity of outstanding Securities may rescind and annul such acceleration if
all Defaults, (other than the non-payment of Accreted Value or principal of and
interest on the Securities which has become due solely by virtue of such
acceleration), have been cured or waived as provided in this Indenture. Upon any
such declaration pursuant to the immediately preceding sentence, the Accreted
Value and accrued and unpaid interest, if any, shall become immediately due and
payable. If an Event of Default with respect to the Company specified in Section
6.01(h) or (i) occurs, the Accreted Value of all of the outstanding Securities,
together with all accrued and unpaid interest, if any, thereon, will ipso facto
become immediately due and payable without any declaration or other act on the
part of the Trustee or any Holder (provided that Securities whose Accreted Value
remains unpaid after the date of such Event of Default shall continue to accrete
pursuant to the definition of "Accreted Value" and accrue interest as provided
in the Securities).
SECTION 6.03. Other Remedies.
--------------
If an Event of Default occurs and is continuing, the Trustee may
pursue any available remedy by proceeding at law or in equity to collect the
payment of Accreted Value or principal of, as applicable, or interest on the
Securities or to enforce the performance of any provision of the Securities or
this Indenture.
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The Trustee may maintain a proceeding even if it does not possess any
of the Securities or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Securityholder in exercising any right or remedy
maturing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. No remedy is
exclusive of any other remedy. All available remedies are cumulative to the
extent permitted by law.
SECTION 6.04. Waiver of Past Default.
----------------------
Subject to Sections 2.09, 6.07 and 10.02, prior to the declaration of
acceleration of the Securities, (i) the Holders of not less than a majority in
aggregate principal amount at maturity of the outstanding Securities by written
notice to the Trustee may waive an existing Default and its consequences, except
a Default in the payment of Accreted Value or principal of and interest on any
Security as specified in Section 6.01(a) or (b), (ii) a default arising from
failure to effect an Offer to Purchase required under Section 4.05 or 4.14 or
(iii) a Default in respect of any term or provision of this Indenture that may
not be amended or modified without the consent of each Holder affected as
provided in Section 10.02. The Company shall deliver to the Trustee an Officers'
Certificate stating that the requisite percentage of Holders have consented to
such waiver and attaching copies of such consents. In case of any such waiver,
the Company, the Trustee and the Holders shall be restored to their former
positions and rights hereunder and under the Securities, respectively. This
paragraph of this Section 6.04 shall be in lieu of (S) 316(a)(1)(B) of the TIA
and such (S) 316(a)(1)(B) of the TIA is hereby expressly excluded from this
Indenture and the Securities, as permitted by the TIA.
Upon any such waiver, such Default shall cease to exist and be deemed
to have been cured and not to have occurred, and any Event of Default arising
therefrom shall be deemed to have been cured and not to have occurred for every
purpose of this Indenture and the Securities, but no such waiver shall extend to
any subsequent or other Default or impair any right consequent thereon.
SECTION 6.05. Control by Majority.
-------------------
Subject to Section 2.09, the Holders of a majority in principal amount
of the outstanding Securities may direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee or exercising
any trust or
-72-
power conferred on it. However, the Trustee may refuse to follow any direction
that conflicts with law or this Indenture, that the Trustee determines may be
unduly prejudicial to the rights of another Securityholder, or that may involve
the Trustee in personal liability; provided, however, that the Trustee may take
-------- -------
any other action deemed proper by the Trustee which is not inconsistent with
such direction. In the event the Trustee takes any action or follows any
direction pursuant to this Indenture, the Trustee shall be entitled to
indemnification satisfactory to it in its sole discretion against any loss or
expense caused by taking such action or following such direction. This Section
6.05 shall be in lieu of (S) 316(a)(1)(A) of the TIA, and such (S) 316(a)(1)(A)
of the TIA is hereby expressly excluded from this Indenture and the Securities,
as permitted by the TIA.
SECTION 6.06. Limitation on Suits.
-------------------
A Securityholder may not pursue any remedy with respect to this
Indenture or the Securities unless:
(1) the Holder gives to the Trustee written notice of a continuing
Event of Default;
(2) the Holders of at least 25% in aggregate principal amount at
maturity of the outstanding Securities make a written request to the
Trustee to pursue a remedy;
(3) such Holder or Holders offer and, if requested, provide to the
Trustee indemnity satisfactory to the Trustee against any loss, liability
or expense;
(4) the Trustee does not comply with the request within 60 days after
receipt of the request and the offer and, if requested, the provision of
indemnity; and
(5) during such 60-day period the Holders of a majority in aggregate
principal amount at maturity of the outstanding Securities (excluding
Affiliates of the Company) do not give the Trustee a direction which, in
the opinion of the Trustee, is inconsistent with the request.
A Securityholder may not use this Indenture to prejudice the rights of
another Securityholder or to obtain a preference or priority over such other
Securityholder.
Section 6.06 limitations do not apply to a suit instituted by a Holder
of a Note for enforcement of payment of
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the principal of and premium, if any, or of interest on such Security on or
after the respective due dates therefor.
SECTION 6.07. Rights of Holders to Receive Payment.
------------------------------------
Notwithstanding any other provision of this Indenture, the right of
any Holder to receive payment of principal of and premium, if any, and interest
on the Securities, on or after the respective due dates therefor, or to bring
suit for the enforcement of any such payment on or after such respective dates,
shall not be impaired or affected without the consent of such Holder.
SECTION 6.08. Collection Suit by Trustee.
--------------------------
If an Event of Default in payment of interest or principal specified
in Section 6.01(a) or (b) occurs and is continuing, the Trustee may recover
judgment in its own name and as trustee of an express trust against the Company
or any other obligor on the Securities for the whole amount of principal of and
premium, if any, and accrued interest remaining unpaid, together with interest
overdue on principal and to the extent that payment of such interest is lawful,
interest on overdue installments of interest, in each case at the rate per annum
---------
borne by the Securities and such further amount as shall be sufficient to cover
the costs and expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel.
SECTION 6.09. Trustee May File Proofs of Claim.
--------------------------------
The Trustee may file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and the
Securityholders allowed in any judicial proceedings relative to the Company (or
any other obligor upon the Securities), its creditors or its property and shall
be entitled and empowered to collect and receive any monies or other property
payable or deliverable on any such claims and to distribute the same, and any
Custodian in any such judicial proceedings is hereby authorized by each
Securityholder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the
Securityholders, to pay to the Trustee any amount due to it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agent and
counsel, and any other amounts due the Trustee under Section 7.07.
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Nothing herein contained shall be deemed to authorize the Trustee to authorize
or consent to or accept or adopt on behalf of any Securityholder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof, or to authorize the Trustee to vote in
respect of the claim of any Securityholder in any such proceeding.
SECTION 6.10. Priorities.
----------
If the Trustee collects any money or property pursuant to this Article
Six, it shall pay out the money or property in the following order:
First: to the Trustee for amounts due under Section 7.07;
Second: subject to Articles Eight and Twelve, to Holders for amounts
due and unpaid on the Securities for principal and interest, ratably,
without preference or priority of any kind, according to the amounts due
and payable on the Securities for principal, premium, if any, and interest,
respectively; and
Third: to the Company.
The Trustee, upon prior written notice to the Company, may fix a
record date and payment date for any payment to Securityholders pursuant to this
Section 6.10.
SECTION 6.11. Undertaking for Costs.
---------------------
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted by
it as Trustee, a court in its discretion may require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys' fees and expenses, against any party litigant in the suit, having due
regard to the merits and good faith of the claims or defenses made by the party
litigant. This Section 6.11 shall not apply to a suit by the Trustee, a suit by
a Holder or group of Holders of more than 10% in aggregate principal amount at
maturity of the outstanding Securities, or to any suit instituted by any Holder
for the enforcement or the payment of the principal, premium, if any, or
interest on any Securities on or after the respective due dates therefor.
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ARTICLE SEVEN
TRUSTEE
SECTION 7.01. Duties of Trustee.
-----------------
(a) If a Default has occurred and is continuing, the Trustee shall
exercise such of the rights and powers vested in it by this Indenture and use
the same degree of care and skill in their exercise as a prudent person would
exercise or use under the circumstances in the conduct of such person's own
affairs.
(b) Except during the continuance of a Default:
(1) The Trustee undertakes to perform such duties and only such duties
as are specifically set forth in this Indenture, and no implied covenants
or obligations shall be read into this Indenture against the Trustee; and
(2) In the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions conforming to
the requirements of this Indenture; provided, however, the Trustee shall
-------- -------
examine the certificates and opinions to determine whether or not they
conform to the requirements of this Indenture (but need not confirm or
investigate the accuracy of mathematical calculations or other facts stated
therein).
(c) The Trustee shall not be relieved from liability for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(1) This paragraph does not limit the effect of paragraph (b) of this
Section 7.01;
(2) The Trustee shall not be liable for any error of judgment made in
good faith by a Trust Officer, unless it is proved that the Trustee was
negligent in ascertaining the pertinent facts; and
(3) The Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.05.
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(d) No provision of this Indenture shall require the Trustee to expend
or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder or to take or omit to take any action
under this Indenture or take any action at the request or direction of Holders
if it shall have reasonable grounds for believing that repayment of such funds
is not assured to it or it does not receive an indemnity satisfactory to it in
its sole discretion against such risk, liability, loss, fee or expense which
might be incurred by it in compliance with such request or direction.
(e) Every provision of this Indenture that in any way relates to the
Trustee is subject to paragraphs (a), (b), (c) and (d) of this Section 7.01.
(f) The Trustee shall not be liable for interest on any money or
assets received by it except as the Trustee may agree in writing with the
Company. Money or assets held in trust by the Trustee need not be segregated
from other funds or assets except to the extent required by law.
SECTION 7.02. Rights of Trustee.
-----------------
Subject to Section 7.01:
(a) The Trustee may rely and shall be protected in acting or
refraining from acting on any document believed by it to be genuine and to
have been signed or presented by the proper Person. The Trustee need not
investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may consult
with counsel of its selection and may require an Officers' Certificate and
an Opinion of Counsel, which shall conform to the provisions of Section
13.05. The Trustee shall not be liable for any action it takes, suffers or
omits to take in good faith in reliance on such certificate or opinion.
(c) The Trustee may act through attorneys and agents of its selection
and shall not be responsible for the misconduct or negligence of any agent
or attorney (other than an agent who is an employee of the Trustee)
appointed with due care.
(d) The Trustee shall not be liable for any action it takes or omits
to take in good faith which it reasona-
-77-
xxx believes to be authorized or within its rights or powers conferred upon
it by this Indenture.
(e) The Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction
of any of the Securityholders pursuant to this Indenture, unless such
Securityholders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction.
(f) Provided the Trustee acts in good faith, the Trustee shall not be
bound to make any investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note, other evidence
of indebtedness or other paper or document, but the Trustee, in its
discretion, may make such further inquiry or investigation into such facts
or matters as it may see fit, and, if the Trustee shall determine to make
such further inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Company, personally or by agent or
attorney at the sole cost of the Company and shall incur no liability or
additional liability of any kind by reason of such inquiry or
investigation.
(g) The Trustee shall not be deemed to have notice of any Default
unless a Trust Officer of the Trustee has actual knowledge thereof or
unless written notice of any event which is in fact such a default is
received by the Trustee at the Corporate Trust Office of the Trustee, and
such notice references the Securities and this Indenture.
SECTION 7.03. Individual Rights of Trustee.
----------------------------
The Trustee in its individual or any other capacity may become the
owner or pledgee of Securities and may otherwise deal with the Company or its
Affiliates with the same rights it would have if it were not Trustee. Any Agent
may do the same with like rights. However, the Trustee is subject to Sections
7.10 and 7.11.
SECTION 7.04. Trustee's Disclaimer.
--------------------
The Trustee shall not be responsible for and makes no representation
as to the validity or adequacy of this Indenture
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or the Securities, it shall not be accountable for the Company's use of the
proceeds from the Securities, and it shall not be responsible for any statement
of the Company in this Indenture or any document issued in connection with the
sale of Securities or any statement in the Securities other than the Trustee's
certificate of authentication.
SECTION 7.05. Notice of Defaults.
------------------
The Trustee shall, within 30 days after the occurrence of any Default
or Event of Default with respect to the Securities, give the Holders notice of
all uncured Defaults or Events of Default known to it; provided, however, that,
-------- -------
except in the case of an Event of Default or a Default in any payment with
respect to the Securities or a Default or Event of Default in complying with
Section 5.01, the Trustee shall be protected in withholding such notice if and
so long as the Board, the executive committee or a trust committee or
responsible officers of the Trustee in good faith determine that the withholding
of such notice is in the interest of the Holders.
SECTION 7.06. Reports by Trustee to Holders.
-----------------------------
If required by TIA (S) 313(a), within 60 days after each July 1
beginning with the July 1 following the date of this Indenture, the Trustee
shall mail to each Securityholder a report dated as of such July 1 that complies
with TIA (S) 313(a). The Trustee also shall comply with TIA (S) 313(b), (c) and
(d).
A copy of each such report at the time of its mailing to
Securityholders shall be filed with the Commission, the Company and each stock
exchange, if any, on which the Securities are listed in accordance with TIA (S)
313(d).
The Company shall promptly notify the Trustee in writing if the
Securities become listed on any securities exchange or of any delisting
therefrom.
SECTION 7.07. Compensation and Indemnity.
--------------------------
The Company shall pay to the Trustee from time to time such
compensation as the Company and the Trustee shall from time to time agree in
writing for its services. The Trustee's compensation shall not be limited by any
law on compensation of a trustee of an express trust. The Company shall
reimburse the Trustee upon request for all reasonable disbursements, expenses
and advances (including reasonable fees, disbursements and expenses of its
agents and counsel) incurred or
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made by it in addition to the compensation for its services except any such
disbursements, expenses and advances as may be attributable to the Trustee's
negligence or bad faith. Such expenses shall include the reasonable
compensation, disbursements and expenses of the Trustee's agents, accountants,
experts and counsel and any taxes or other expenses incurred by a trust created
pursuant to Section 9.01 hereof.
The Company shall indemnify the Trustee or any predecessor Trustee and
their agents for, and hold them harmless against any and all loss, damage,
claims, liability or expense, including taxes (other than franchise taxes
imposed on the Trustee and taxes based upon, measured by or determined by the
income of the Trustee), arising out of or in connection with the acceptance or
administration of the trust or trusts hereunder, including the costs and
expenses of enforcing this Indenture against the Company (including Section
7.07) and of defending itself against any claim (whether asserted by any
Securityholder or the Company or any other person) or liability in connection
with the exercise or performance of any of their powers or duties hereunder,
except to the extent that such loss, damage, claim, liability or expense is due
to their own negligence or bad faith. The Trustee shall notify the Company
promptly of any claim asserted against the Trustee for which it may seek
indemnity. However, the failure by the Trustee to so notify the Company shall
not relieve the Company of its obligations hereunder (unless and only to the
extent that such failure results in the loss or compromise of any rights or
defenses). The Company shall defend the claim and the Trustee shall cooperate in
the defense (and may employ its own counsel) at the Company's expense; provided,
--------
however, that the Company's reimbursement obligation with respect to counsel
--------
employed by the Trustee will be limited to the reasonable fees and expenses of
such counsel. The Company need not pay for any settlement made without its
written consent, which consent shall not be unreasonably withheld. The Company
need not reimburse any expense or indemnify against any loss or liability
incurred by the Trustee as a result of the violation of this Indenture by the
Trustee.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.01(h) or (i) occurs, the expenses (including the
reasonable fees and expenses of its agents and counsel) and the compensation for
the services shall be preferred over the status of the Holders in a proceeding
under any Bankruptcy Law and are intended to constitute expenses of
administration under any Bankruptcy Law. The Company's obligations under this
Section 7.07 and any claim
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arising hereunder shall survive the resignation or removal of any Trustee, the
discharge of the Company's obligations pursuant to Article Nine and any
rejection or termination under any Bankruptcy Law.
The provisions of this Section 7.07 shall survive the termination of
this Indenture.
SECTION 7.08. Replacement of Trustee.
----------------------
The Trustee may resign at any time by so notifying the Company in
writing. The Holders of a majority in aggregate principal amount at maturity of
the outstanding Securities may remove the Trustee by so notifying the Trustee
and the Company in writing and may appoint a successor Trustee with the
Company's consent. The Company may remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged a bankrupt or an insolvent under any
Bankruptcy Law;
(3) a custodian or other public officer takes charge of the Trustee or
its property; or
(4) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason (the Trustee in such event being referred to
herein as the retiring Trustee), the Company shall promptly appoint a successor
Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. As promptly as
practicable after that, the retiring Trustee shall transfer, after payment of
all sums then owing to the Trustee pursuant to Section 7.07, all property held
by it as Trustee to the successor Trustee, subject to the Lien provided in
Section 7.07, the resignation or removal of the retiring Trustee shall become
effective, and the successor Trustee shall have the rights, powers and duties of
the Trustee under this Indenture. A successor Trustee shall mail notice of its
succession to each Securityholder.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company or the
Holders of at least 10% in aggregate principal amount at maturity of the
outstanding Secu-
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rities may petition any court of competent jurisdiction for the appointment of a
successor Trustee.
If the Trustee fails to comply with Section 7.10, any Securityholder
may petition any court of competent jurisdiction for the removal of the Trustee
and the appointment of a successor Trustee.
Notwithstanding replacement of the Trustee pursuant to this Section
7.08, the Company's obligations under Section 7.07 shall continue for the
benefit of the retiring Trustee.
SECTION 7.09. Successor Trustee by Merger, etc.
--------------------------------
If the Trustee consolidates with, merges or converts into, or
transfers all or substantially all of its corporate trust business to, another
corporation or banking corporation, the resulting, surviving or transferee
corporation or banking corporation without any further act shall be the
successor Trustee.
SECTION 7.10. Eligibility; Disqualification.
-----------------------------
This Indenture shall always have a Trustee which shall be eligible to
act as Trustee under TIA (S) (S) 310(a)(1) and 310(a)(5). The Trustee (or in the
case of a corporation included in a bank holding company, the related bank
holding company) shall have a combined capital and surplus of at least
$50,000,000 as set forth in its most recent published annual report of
condition. If the Trustee has or shall acquire any "conflicting interest" within
the meaning of TIA (S) 310(b), the Trustee and the Company shall comply with the
provisions of TIA (S) 310(b); provided, however, that there shall be excluded
-------- -------
from the operation of TIA (S) 310(b)(1) any indenture or indentures under which
other securities, or certificates of interest or participation in other
securities, of the Company are outstanding, if the requirements for such
exclusion set forth in TIA (S) 310(b)(1) are met. If at any time the Trustee
shall cease to be eligible in accordance with the provisions of this Section,
the Trustee shall resign immediately in the manner and with the effect
hereinbefore specified in this Article Seven.
SECTION 7.11. Preferential Collection of Claims
Against Company.
---------------------------------
The Trustee shall comply with TIA (S) 311(a), excluding any creditor
relationship listed in TIA (S) 311(b). A Trustee
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who has resigned or been removed shall be subject to TIA (S) 311(a) to the
extent indicated therein.
ARTICLE EIGHT
SUBORDINATION OF SECURITIES
SECTION 8.01. Securities Subordinated to Senior Debt.
--------------------------------------
The Company covenants and agrees, and the Trustee and each Holder by
acceptance of the Securities likewise covenant and agree, that all Securities
shall be issued subject to the provisions of this Article; and each person
holding any Security, whether upon original issue or upon transfer, assignment
or exchange thereof, accepts and agrees that all payments of the principal of,
premium, if any, and interest (including Additional Interest) on the Securities
by the Company shall, to the extent and in the manner set forth in this Article,
be subordinated and junior in right of payment to the prior payment in full in
cash of all existing and future Senior Debt of the Company.
SECTION 8.02. No Payment on Securities in
Certain Circumstances.
---------------------------
(a) No direct or indirect payment by or on behalf of the Company
of principal of, premium, if any, or interest (including Additional Interest) on
the Securities (other than payments to Holders from funds held in trust for the
benefit of Holders pursuant to Section 9.01), whether pursuant to the terms of
the Securities or upon acceleration, by way of repurchase, redemption,
defeasance or otherwise, will be made if, at the time of such payment, there
exists a default in the payment when due of all or any portion of the
obligations under or in respect of any Designated Senior Debt, whether at
maturity, on account of mandatory redemption or prepayment, acceleration or
otherwise, and such default shall not have been cured or waived or the benefits
of this sentence waived by or on behalf of the holders of Designated Senior
Debt. In addition, during the continuance of any non-payment default or non-
payment event of default with respect to any Designated Senior Debt pursuant to
which the maturity thereof may be accelerated, and upon receipt by the Trustee
of written notice (a "Payment Blockage Notice") from a holder or holders of such
-----------------------
Designated Senior Debt or the trustee or agent acting on behalf of such
Designated Senior Debt, then, unless and until such default or event of default
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has been cured or waived or has ceased to exist or such Designated Senior Debt
has been discharged or repaid in full in cash, or the requisite holders of such
Designated Senior Debt have otherwise agreed in writing, no payment or
distribution will be made by or on behalf of the Company on account of or with
respect to the Securities (except payments to Holders from funds held in trust
for the benefit of Holders pursuant to Section 9.01), during a period (a
"Payment Blockage Period") commencing on the date of receipt of such Payment
-----------------------
Blockage Notice by the Trustee and ending 179 days thereafter.
Notwithstanding anything herein to the contrary, (x) in no event will
a Payment Blockage Period extend beyond 179 days from the date the Payment
Blockage Notice in respect thereof was given and (y) there must be 180 days in
any 360-day period during which no Payment Blockage Period is in effect. Not
more than one Payment Blockage Period may be commenced with respect to the
Securities during any period of 360 consecutive days. No default or event of
default that existed or was continuing on the date of commencement of any
Payment Blockage Period with respect to the Designated Senior Debt initiating
such Payment Blockage Period may be, or be made, the basis for the commencement
of any other Payment Blockage Period by the holder or holders of such Designated
Senior Debt or the trustee or agent acting on behalf of such Designated Senior
Debt, whether or not within a period of 360 consecutive days, unless such
default or event of default has been cured or waived for a period of not less
than 90 consecutive days.
(b) In the event that, notwithstanding the foregoing, any payment
shall be received by the Trustee or any Holder when such payment is prohibited
by Section 8.02(a), such payment shall be held in trust for the benefit of, and
shall be paid over or delivered to, the holders of Designated Senior Debt or
their respective representatives, or to the trustee or trustees under any
indenture pursuant to which any of such Designated Senior Debt may have been
issued, as their respective interests may appear, but only to the extent that,
upon notice from the Trustee to the holders of Designated Senior Debt that such
prohibited payment has been made, the holders of the Designated Senior Debt (or
their representative or representatives or a trustee) notify the Trustee in
writing of the amounts then due and owing on the Designated Senior Debt, if any,
and only the amounts specified in such notice to the Trustee shall be paid to
the holders of Designated Senior Debt.
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SECTION 8.03. Payment Over of Proceeds upon Dissolution, etc.
----------------------------------------------
(a) Upon any payment or distribution of assets or securities of
the Company of any kind or character (whether in cash, property or securities)
upon any dissolution or winding up or total or partial liquidation or
reorganization of the Company, whether voluntary or involuntary or in
bankruptcy, insolvency, receivership or other proceedings, all amounts due or to
become due with respect to Senior Debt of the Company (including any interest
accruing subsequent to an event of bankruptcy or insolvency, whether or not
allowed or allowable thereunder) shall first be paid in full in cash, before the
Holders or the Trustee on their behalf shall be entitled to receive any payment
by the Company of the principal of, premium, if any, or interest on the
Securities, or any payment to acquire any of the Securities for cash, property
or securities, or any distribution with respect to the Securities of any cash,
property or securities. Before any payment may be made by, or on behalf of, the
Company of the principal of, premium, if any, or interest on the Securities upon
any such dissolution or winding up or liquidation or reorganization, any payment
or distribution of assets or securities of the Company of any kind or character,
whether in cash, property or securities, to which the Holders of the Securities
or the Trustee on their behalf would be entitled, but for the subordination
provisions of this Indenture, shall be made by the Company or by any receiver,
trustee in bankruptcy, liquidating trustee, agent or other person making such
payment or distribution, directly to the holders of Senior Debt of the Company
(pro rata to such holders on the basis of the respective amounts of Senior Debt
held by such holders) or their representative(s) or to the trustee(s) under any
indenture pursuant to which any such Senior Debt may have been issued as their
respective interests may appear, to the extent necessary to pay all such Senior
Debt in full after giving effect to any concurrent payment, distribution or
provision therefor to or for the holders of such Senior Debt.
(b) In the event that, notwithstanding the foregoing provision
prohibiting such payment or distribution, any payment or distribution of assets
or securities of the Company of any kind or character, whether in cash, property
or securities, shall be received by the Trustee or any Holder at a time when
such payment or distribution is prohibited by Section 8.03(a) and before all
obligations in respect of Senior Debt are paid in full, or payment provided for,
such payment or distribution shall be received and held in trust for the benefit
of, and shall be paid over or delivered to, the holders of Senior Debt or their
respective representative(s), or to the trustee(s) un-
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der any indenture pursuant to which any of such Senior Debt may have been
issued, as their respective interests may appear, for application to the payment
of Senior Debt remaining unpaid until all such Senior Debt has been paid in full
after giving effect to any concurrent payment, distribution or provision
therefor to or for the holders of such Senior Debt.
SECTION 8.04. Subrogation.
-----------
Upon the payment in full of all Senior Debt, or provision for payment,
the Holders shall be subrogated (equally and ratably with all pari passu
---- -----
Indebtedness) to the rights of the holders of Senior Debt to receive payments or
distributions of cash, property or securities of the Company made on such Senior
Debt until the principal of, premium, if any, and interest on the Securities
shall be paid in full; and, for the purposes of such subrogation, no payments or
distributions to the holders of the Senior Debt of any cash, property or
securities to which the Holders or the Trustee on their behalf would be entitled
except for the provisions of this Article, and no payment over pursuant to the
provisions of this Article to the holders of Senior Debt by Holders or the
Trustee on their behalf shall, as between the Company, its creditors other than
holders of Senior Debt, and the Holders, be deemed to be a payment by the
Company to or on account of the Senior Debt. It is understood that the
provisions of this Article are and are intended solely for the purpose of
defining the relative rights of the Holders, on the one hand, and the holders of
the Senior Debt, on the other hand.
If any payment or distribution to which the Holders would otherwise
have been entitled but for the provisions of this Article shall have been
applied, pursuant to the provisions of this Article, to the payment of all
amounts payable under Senior Debt, then and in such case, the Holders shall be
entitled to receive from the holders of such Senior Debt any payments or
distributions received by such holders of Senior Debt in excess of the amount
required to make payment in full, or provision for payment, of such Senior Debt.
SECTION 8.05. Obligations of Company Unconditional.
------------------------------------
Nothing contained in this Article or elsewhere in this Indenture or in
the Securities is intended to or shall impair, as among the Company and the
Holders, the obligation of the Company, which is absolute and unconditional, to
pay to the Holders the principal of, premium, if any, and interest on the
Securities as and when the same shall become due and payable in
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accordance with their terms, or is intended to or shall affect the relative
rights of the Holders and creditors of the Company other than the holders of the
Senior Debt, nor shall anything herein or therein prevent any Holder or the
Trustee on their behalf from exercising all remedies otherwise permitted by
applicable law upon default under this Indenture, subject to the rights, if any,
under this Article of the holders of the Senior Debt in respect of cash,
property or securities of the Company received upon the exercise of any such
remedy.
Without limiting the generality of the foregoing, nothing contained in
this Article shall restrict the right of the Trustee or the Holders to take any
action to declare the Securities to be due and payable prior to their stated
maturity pursuant to Section 6.01 or to pursue any rights or remedies hereunder;
provided, however, that all Senior Debt then due and payable shall first be paid
-------- -------
in full before the Holders or the Trustee are entitled to receive any direct or
indirect payment from the Company of principal of or interest on the Securities.
SECTION 8.06. Notice to Trustee.
-----------------
The Company shall give prompt written notice to the Trustee of any
fact known to the Company which would prohibit the making of any payment to or
by the Trustee in respect of the Securities pursuant to the provisions of this
Article. Failure to give such notice to the Trustee shall not affect the
subordination of the Securities to Senior Debt. The Trustee shall not be charged
with knowledge of the existence of any default or event of default with respect
to any Senior Debt or of any other facts which would prohibit the making of any
payment to or by the Trustee unless and until the Trustee shall have received
notice in writing to that effect signed by an Officer of the Company, or by a
holder of Senior Debt or trustee or agent therefor; and prior to the receipt of
any such written notice, the Trustee shall, subject to Article Seven, be
entitled to assume that no such facts exist; provided, however, that if the
-------- -------
Trustee shall not have received the notice provided for in this Section 8.06 at
least three Business Days prior to the date upon which by the terms of this
Indenture any moneys shall become payable for any purpose (including, without
limitation, the payment of the principal of, premium, if any, or interest on any
Security), then, regardless of anything herein to the contrary, the Trustee
shall have full power and authority to receive any moneys from the Company and
to apply the same to the purpose for which they were received, and shall not be
affected by any notice to the contrary which may be received by it on or after
such prior date. Nothing contained in this
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Section 8.06 shall limit the right of the holders of Senior Debt to recover
payments as contemplated by Section 8.02 or 8.03. The Trustee shall be entitled
to rely on the delivery to it of a written notice by a Person representing
himself or itself to be a holder of any Senior Debt (or a trustee on behalf of,
or other representative of, such holder) to establish that such notice has been
given by a holder of such Senior Debt or a trustee or representative on behalf
of any such holder.
In the event that the Trustee determines in good faith that any
evidence is required with respect to the right of any Person as a holder of
Senior Debt to participate in any payment or distribution pursuant to this
Article, the Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior Debt held by
such Person, the extent to which such Person is entitled to participate in such
payment or distribution and any other facts pertinent to the rights of such
Person under this Article, and if such evidence is not furnished, the Trustee
may defer any payment to such Person pending judicial determination as to the
right of such Person to receive such payment.
SECTION 8.07. Reliance on Judicial Order or
Certificate of Liquidating Agent.
--------------------------------
Upon any payment or distribution of assets or securities referred to
in this Article, the Trustee and the Holders of the Securities shall be entitled
to rely upon any order or decree made by any court of competent jurisdiction in
which bankruptcy, dissolution, winding-up, liquidation or reorganization
proceedings are pending, or upon a certificate of the receiver, trustee in
bankruptcy, liquidating trustee, agent or other person making such payment or
distribution, delivered to the Trustee or to the Holders for the purpose of
ascertaining the persons entitled to participate in such distribution, the
holders of the Senior Debt and other indebtedness of the Company, the amount
thereof or payable thereon, the amount or amo unts paid or distributed thereon
and all other facts pertinent thereto or to this Article.
SECTION 8.08. Trustee's Relation to Senior Debt.
---------------------------------
The Trustee and any Paying Agent shall be entitled to all the rights
set forth in this Article with respect to any Senior Debt which may at any time
be held by it in its individual or any other capacity to the same extent as any
other holder of Senior Debt, and nothing in this Indenture shall de-
-88-
prive the Trustee or any Paying Agent of any of its rights as such holder.
With respect to the holders of Senior Debt, the Trustee undertakes to
perform or to observe only such of its covenants and obligations as are
specifically set forth in this Article, and no implied covenants or obligations
with respect to the holders of Senior Debt shall be read into this Indenture
against the Trustee. The Trustee shall not be deemed to owe any fiduciary duty
to the holders of Senior Debt (except as provided in Section 8.03(b)). The
Trustee shall not be charged with knowledge of the existence of Senior Debt or
of any facts that would prohibit any payment hereunder unless the Trustee shall
have received written notice to that effect at the address of the Trustee set
forth in Section 13.02.
SECTION 8.09. Subordination Rights Not Impaired
by Acts or Omissions of the Company
or Holders of Senior Debt.
-----------------------------------
No right of any present or future holders of any Senior Debt to
enforce subordination as provided herein shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of the Company
or by any act or failure to act, in good faith, by any such holder, or by any
noncompliance by the Company with the terms of this Indenture, regardless of any
knowledge thereof which any such holder may have or otherwise be charged with.
The provisions of this Article are intended to be for the benefit of, and shall
be enforceable directly by, the holders of Senior Debt.
SECTION 8.10. Securityholders Authorize Trustee To
Effectuate Subordination of Securities.
--------------------------------------
Each Holder of Securities by his acceptance of such Securities
authorizes and expressly directs the Trustee on his behalf to take such action
as may be necessary or appropriate to effectuate the subordination provided in
this Article, and appoints the Trustee his attorney-in-fact for such purposes,
including, in the event of any dissolution, winding up, liquidation or
reorganization of the Company (whether in bankruptcy, insolvency, receivership,
reorganization or similar proceedings or upon an assignment for the benefit of
creditors or otherwise) tending towards liquidation of the business and assets
of the Company, the filing of a claim for the unpaid balance of its or his
Securities in the form required in those proceedings.
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SECTION 8.11. This Article Not to Prevent Events of Default.
---------------------------------------------
The failure to make a payment on account of principal of or
interest on the Securities by reason of any provision of this Article shall not
be construed as preventing the occurrence of an Event of Default specified in
Section 6.01(a), (b) or (c).
SECTION 8.12. Trustee's Compensation Not Prejudiced.
-------------------------------------
Nothing in this Article shall apply to amounts due to the Trustee
pursuant to other sections in this Indenture.
SECTION 8.13. No Waiver of Subordination Provisions.
-------------------------------------
Without in any way limiting the generality of Section 8.09, the
holders of Senior Debt may, at any time and from time to time, without the
consent of or notice to the Trustee or the Holders of the Securities, without
incurring responsibility to the Holders of the Securities and without impairing
or releasing the subordination provided in this Article or the obligations
hereunder of the Holders of the Securities to the holders of Senior Debt, do any
one or more of the following: (a) change the manner, place or terms of payment
or extend the time of payment of, or renew or alter, Senior Debt or any
instrument evidencing the same or any agreement under which Senior Debt is
outstanding or secured; (b) sell, exchange, release or otherwise deal with any
property pledged, mortgaged or otherwise securing Senior Debt; (c) release any
Person liable in any manner for the collection of Senior Debt; and (d) exercise
or refrain from exercising any rights against the Company and any other Person.
SECTION 8.14. Subordination Provisions Not Applicable to Money Held in Trust
for Securityholders; Payments May Be Paid Prior to Dissolution.
---------------------------------------------------------------
All money and United States Government Obligations deposited in
trust with the Trustee pursuant to and in accordance with Article Nine shall be
for the sole benefit of the Holders and shall not be subject to this Article
Eight.
Nothing contained in this Article or elsewhere in this Indenture
shall prevent (i) the Company, except under the conditions described in Section
8.02, from making payments of principal of and interest on the Securities, or
from depositing with the Trustee any moneys for such payments or from effecting
-90-
a termination of the Company's and the Guarantors' obligations under the
Securities and this Indenture as provided in Article Nine, or (ii) the
application by the Trustee of any moneys deposited with it for the purpose of
making such payments of principal of, premium, if any, and interest on the
Securities, to the holders entitled thereto unless at least three Business Days
prior to the date upon which such payment becomes due and payable, the Trustee
shall have received the written notice provided for in Section 8.02(b) or in
Section 8.06.
ARTICLE NINE
DISCHARGE OF INDENTURE
SECTION 9.01. Termination of Company's Obligations.
------------------------------------
(a) Discharge. Subject to the provisions of Article Eight, the
---------
Company may terminate its substantive obligations and the substantive
obligations of the Guarantors, if any, in respect of the Securities and the
Guarantees by delivering all outstanding Securities to the Trustee for
cancellation and paying all sums payable by the Company on account of principal
of, premium, if any, and interest on all Securities or otherwise.
(b) Covenant Defeasance. In addition to the provisions of Section
-------------------
9.01(a), the Company may, provided that no Default or Event of Default has
occurred and is continuing or would arise therefrom (or, with respect to a
Default or Event of Default specified in Section 6.01(h) or (i), any time on or
prior to the 91st calendar day after the date of such deposit (it being
understood that this condition shall not be deemed satisfied until after such
91st day)) and provided that no default under any Senior Debt would result
therefrom, terminate its substantive obligations and the substantive obligations
of the Guarantors, if any, in respect of the Securities and the Guarantees
(except for the Company's obligation to pay the principal of (and premium, if
any, on) and the interest on the Securities and such Guarantors' guarantee
thereof) by (i) depositing with the Trustee, under the terms of an irrevocable
trust agreement, money or direct non-callable obligations of the United States
of America for the payment of which its full faith and credit is pledged
("United States Government Obligations") sufficient (without reinvestment) to
------------------------------------
pay all remaining indebtedness on the Securities to maturity or to redemption,
(ii) delivering to the Trustee either an Opinion of Counsel or a ruling directed
to the Trustee from the Internal Revenue
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Service to the effect that the Holders will not recognize income, gain or loss
for federal income tax purposes as a result of such deposit and termination of
obligations, (iii) delivering to the Trustee an Opinion of Counsel to the effect
that the Company's exercise of its option under this paragraph will not result
in the Company, the Trustee or the trust created by the Company's deposit of
funds pursuant to this provision becoming or being deemed to be an "investment
company" under the Investment Company Act of 1940, as amended, and (iv)
delivering to the Trustee an Officers' Certificate and an Opinion of Counsel
each stating that there has been compliance with all conditions precedent
provided for herein.
(c) Legal Defeasance. In addition to the provisions of Section
----------------
9.01(a) and (b), the Company may, provided that no Default or Event of Default
has occurred and is continuing or would arise therefrom (or, with respect to a
Default specified in Section 6.01(h) or (i), any time on or prior to the 91st
calendar day after the date of such deposit (it being understood that this
condition shall not be deemed satisfied until after such 91st day)) and provided
that no default under any Senior Debt would result therefrom, terminate all of
its substantive obligations and all of the substantive obligations of the
Guarantors in respect of the Securities and the Guarantees (including the
Company's obligation to pay the principal of (and premium, if any, on) and
interest on the Securities and such Guarantors' guarantee thereof) by (i)
depositing with the Trustee, under the terms of an irrevocable trust agreement,
money or United States Government Obligations sufficient (without reinvestment)
to pay all remaining indebtedness on the Securities to maturity or to
redemption, (ii) delivering to the Trustee either a ruling directed to the
Trustee from the Internal Revenue Service to the effect that the Holders will
not recognize income, gain or loss for federal income tax purposes as a result
of such deposit and termination of obligations or an Opinion of Counsel based
upon such a ruling addressed to the Trustee or a change in the applicable
Federal tax law since the date of this Indenture, to such effect, (iii)
delivering to the Trustee an Opinion of Counsel to the effect that the Company's
exercise of its option under this paragraph will not result in the Company, the
Trustee or the trust created by the Company's deposit of funds pursuant to this
provision becoming or being deemed to be an "investment company" under the
Investment Company Act of 1940, as amended, and (iv) delivering to the Trustee
an Officers' Certificate and an Opinion of Counsel each stating that there has
been compliance with all conditions precedent provided for herein.
-92-
(d) Notwithstanding the foregoing paragraphs 9.01(b) and (c) above,
the Company's obligations contained in Sections 2.03, 2.05, 2.06, 2.07, 4.02,
7.07, 7.08, 9.03 and 9.04 shall survive until the Securities are no longer
outstanding. In addition, notwithstanding the foregoing paragraph 9.01(b), in
that instance the Company's obligations contained in Section 4.01 shall also
survive until the Securities are no longer outstanding. Thereafter the Company's
obligations in Section 7.07, 9.03 and 9.04 shall survive. The Company may make
an irrevocable deposit pursuant to this Section 9.01 only if at such time it is
not prohibited from doing so under the subordination provisions of this
Indenture and the Company has delivered to the Trustee and any Paying Agent an
Officers' Certificate to that effect. After such delivery or irrevocable deposit
and delivery of an Officers' Certificate and Opinion of Counsel, the Trustee
upon request of the Company shall acknowledge in writing the discharge of the
Company's and the Guarantors' (if any) obligations under the Securities, the
Guarantees and this Indenture other than those surviving obligations specified
in this paragraph (d).
SECTION 9.02. Application of Trust Money.
--------------------------
The Trustee shall hold in trust money or United States Government
Obligations deposited with it pursuant to Section 9.01, and shall apply the
deposited money and the money from United States Government Obligations in
accordance with this Indenture solely to the payment of principal of and
interest on the Securities. The Company shall indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against the United States
Government Obligations deposited pursuant to Section 9.01 or the principal and
interest received in respect thereof other than any such tax, fee or other
charge which by law is for the account of the Holders of outstanding Securities.
SECTION 9.03. Repayment to Company.
--------------------
Subject to Sections 7.07 and 9.01, the Trustee shall promptly pay to
the Company upon receipt by the Trustee of the Company's written request
accompanied by an Officers' Certificate any excess money held by it at any time.
The Trustee shall pay to the Company upon such request any money held by it for
the payment of principal (premium, if any) or interest that remains unclaimed
for two years; provided, however, that the Trustee before being required to make
-------- -------
any payment may at the expense of the Company cause to be published once in a
newspaper of general circulation in The City of New York or mail to
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each Holder entitled to such money notice that such money remains unclaimed and
that, after a date specified therein which shall be at least 30 days from the
date of such publication or mailing, any unclaimed balance of such money then
remaining shall be repaid to the Company. After payment to the Company,
Securityholders entitled to money must look to the Company for payment as
general creditors unless an applicable abandoned property law designates another
person, and all liability of the Trustee or Paying Agent with respect to such
money shall thereupon cease.
SECTION 9.04. Reinstatement.
-------------
If the Trustee is unable to apply any money or United States
Government Obligations in accordance with Section 9.01 by reason of any legal
proceeding or by reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such application, the
Company's and the Guarantors'(if any) obligations under this Indenture and the
Securities shall be revived and reinstated as though no deposit had occurred
pursuant to Section 9.01 until such time as the Trustee is permitted to apply
all such money or United States Government Obligations in accordance with
Section 9.01; provided, however, that if the Company has made any payment of
-------- -------
interest on or principal of any Securities because of the reinstatement of its
obligations, the Company shall be subrogated to the rights of the Holders of
such Securities to receive such payment from the money or United States
Government Obligations held by the Trustee.
ARTICLE TEN
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 10.01. Without Consent of Holders.
--------------------------
The Company and the Guarantors, if any, when authorized by a
resolution of their respective Boards, and the Trustee may amend or supplement
this Indenture or the Securities without notice to or consent of any
Securityholder:
(i) to cure any ambiguity, defect or inconsistency; provided,
--------
however, that such amendment or supplement does not adversely affect the
-------
rights of any Holder;
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(ii) to effect the assumption by a successor Person of all
obligations of the Company under the Securities and this Indenture in
connection with any transaction complying with Article Five of this
Indenture;
(iii) to provide for uncertificated Securities in addition to or in
place of certificated Securities;
(iv) to comply with any requirements of the Commission in order to
effect or maintain the qualification of this Indenture under the TIA;
(v) to make any change that would provide any additional benefit
or rights to the Holders;
(vi) to make any other change that does not adversely affect the
rights of any Holder under this Indenture;
(vii) to evidence the succession of another Person to any
Guarantor and the assumption by any such successor of the covenants of
such Guarantor herein and in the Guarantee;
(viii) to add to the covenants of the Company or the Guarantors for
the benefit of the Holders, or to surrender any right or power herein
conferred upon the Company or any Guarantor;
(ix) to secure the Securities pursuant to the requirements of
Section 4.17 or otherwise; or
(x) to reflect the release of a Guarantor from its obligations
with respect to its Guarantee in accordance with the provisions of Section
11.03 and to add a Guarantor pursuant to the requirements of Section 4.18;
provided, however, that the Company has delivered to the Trustee an Opinion of
-------- -------
Counsel and an Officers' Certificate each stating that such amendment or
supplement complies with the provisions of this Section 10.01.
SECTION 10.02. With Consent of Holders.
-----------------------
The Company, the Guarantors, if any, and the Trustee may amend or
supplement this Indenture or the Securities with the written consent of the
Holders of at least a majority in principal amount at maturity of the
outstanding Securities.
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However, without the consent of each Holder affected, an amendment, supplement
or waiver may not:
(1) change the Stated Maturity of the principal of any Security;
(2) alter the optional redemption or repurchase provisions of any
Security or this Indenture in a manner adverse to the holders of the
Securities (other than the provisions of this Indenture relating to any Offer
to Purchase required under Section 4.05 or 4.14);
(3) reduce the principal amount of any Security;
(4) reduce the rate of or change the time for payment of interest on any
Security;
(5) change the place or currency of payment of the principal of or
interest on any Security;
(6) modify any provisions of this Indenture relating to the waiver of
past defaults (other than to add sections of this Indenture subject thereto)
or the right of the Holders to institute suit for the enforcement of any
payment on or with respect to any Security or the Guarantees, or the
modification and amendment of this Indenture and the Securities (other than
to add sections of this Indenture or the Securities which may not be amended,
supplemented or waived without the consent of each Holder affected);
(7) reduce the percentage of the principal amount of outstanding
Securities necessary for amendment to or waiver of compliance with any
provision of this Indenture or the Securities or for waiver of any Default;
(8) waive a default in the payment of principal of, interest on, or
redemption payment with respect to, any Security (except a rescission of
acceleration of the Securities by the Holders as provided in this Indenture
and a waiver of the payment default that resulted from such acceleration);
(9) modify the ranking or priority of the Securities or the Guarantee, or
modify the definition of Senior Debt or Designated Senior Debt or amend or
modify the subordination provisions of this Indenture in any manner adverse
to the Holders;
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(10) release any Guarantor from any of its obligations under its Guarantee
or this Indenture otherwise than in accordance with this Indenture; or
(11) modify any of the provisions (including the definitions relating
thereto) relating to an Offer to Purchase required under Section 4.05 or 4.14
in a manner materially adverse to the Holders of Securities with respect to
Change of Control that has occurred or any Asset Disposition that has been
consummated.
The Holders of a majority in aggregate principal amount at maturity of the
outstanding Securities, on behalf of all Holders of Securities, may waive
compliance by the Company with certain restrictive provisions of this Indenture.
Subject to certain rights of the Trustee, as provided in this Indenture, (i) the
Holders of a majority in aggregate principal amount at maturity of the
outstanding Securities, on behalf of all Holders of Securities, may waive any
past default under this Indenture, except a default in the payment of principal,
premium or interest or a default arising from failure to purchase any Security
tendered pursuant to an Offer to Purchase required pursuant to Section 4.14, or
a default in respect of a provision that under this Indenture cannot be modified
or amended without the consent of the Holder of each outstanding Security
affected.
It shall not be necessary for the consent of the Holders under this
Section 10.02 to approve the particular form of any proposed amendment or
waiver, but it shall be sufficient if such consent approves the substance
thereof.
SECTION 10.03. Compliance with Trust Indenture Act.
-----------------------------------
Every amendment to or supplement of this Indenture or the Securities shall
comply with the TIA as then in effect.
SECTION 10.04. Revocation and Effect of Consents.
---------------------------------
Until an amendment or waiver becomes effective, a consent to it by a
Holder is a continuing consent by the Holder and every subsequent Holder of that
Security or portion of that Security that evidences the same debt as the
consenting Holder's Security, even if notation of the consent is not made on any
Security. Subject to the following paragraph, any such Holder or subsequent
Holder may revoke the consent as to such Holder's Security or portion of such
Security by written notice to the Trustee or the Company received before the
date on which
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the Trustee receives an Officers' Certificate certifying that the Holders of the
requisite principal amount at maturity of Securities have consented (and not
theretofore revoked such consent) to the amendment, supplement or waiver.
The Company may, but shall not be obligated to, fix a record date for the
purpose of determining the Holders entitled to consent to any amendment,
supplement or waiver. If a record date is fixed, then, notwithstanding the last
sentence of the immediately preceding paragraph, those Persons who were Holders
at such record date (or their duly designated proxies), and only those Persons,
shall be entitled to consent to such amendment, supplement or waiver or to
revoke any consent previously given, whether or not such Persons continue to be
Holders after such record date. No such consent shall be valid or effective for
more than 90 days after such record date.
After an amendment, supplement or waiver becomes effective, it shall bind
every Securityholder, unless it makes a change described in the second sentence
of Section 10.02. In that case the amendment, supplement or waiver shall bind
each Holder of a Security who has consented to it and every subsequent Holder of
a Security or portion of a Security that evidences the same debt as the
consenting Holder's Security.
SECTION 10.05. Notation on or Exchange of Securities.
-------------------------------------
If an amendment, supplement or waiver changes the terms of a Security, the
Trustee may require the Holder of the Security to deliver it to the Trustee.
The Trustee may place an appropriate notation on the Security about the changed
terms and return it to the Holder. Alternatively, if the Company or the Trustee
so determines, the Company in exchange for the Security shall issue and the
Trustee shall authenticate a new Security that reflects the changed terms.
Failure to make the appropriate notation or issue a new Security shall not
affect the validity and effect of such amendment, supplement or waiver.
SECTION 10.06. Trustee To Sign Amendments, etc.
-------------------------------
The Trustee shall be entitled to receive, and shall be fully protected in
relying upon, an Opinion of Counsel and an Officers' Certificate each stating
that the execution of any amendment, supplement or waiver authorized pursuant to
this Article Ten is authorized or permitted by this Indenture and that such
amendment, supplement or waiver constitutes the legal, valid and binding
obligation of the Company and the Guarantors,
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enforceable in accordance with its terms (subject to customary exceptions). The
Trustee shall execute any amendment, supplement or waiver authorized pursuant to
this Article Ten, provided, however, that the Trustee may, but shall not be
-------- -------
obligated to, execute any such amendment, supplement or waiver which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise. In
signing any amendment, supplement or waiver, the Trustee shall be entitled to
receive an indemnity reasonably satisfactory to it.
ARTICLE ELEVEN
GUARANTEE
SECTION 11.01. Unconditional Guarantee.
-----------------------
Each Guarantor who becomes a party to this Indenture hereby
unconditionally, jointly and severally, guarantees to each Holder of a Security
authenticated and delivered by the Trustee and to the Trustee and its successors
and assigns that: the principal of, premium, if any, and interest (including
Additional Interest) on the Securities will be promptly paid in full when due,
subject to any applicable grace period, whether at maturity, by acceleration or
otherwise, and interest on the overdue principal and interest on any overdue
interest (including Additional Interest) on the Securities and all other
obligations of the Company to the Holders or the Trustee hereunder or under the
Securities will be promptly paid in full or performed, all in accordance with
the terms hereof and thereof; subject, however, to the limitations set forth in
Section 11.04. Each such Guarantor hereby agrees that its obligations hereunder
shall be unconditional, irrespective of the validity, regularity or
enforceability of the Securities or this Indenture, the absence of any action to
enforce the same, any waiver or consent by any Holder of the Securities with
respect to any provisions hereof or thereof, the recovery of any judgment
against the Company, any action to enforce the same or any other circumstance
which might otherwise constitute a legal or equitable discharge or defense of a
guarantor. Each such Guarantor hereby waives diligence, presentment, demand of
payment, filing of claims with a court in the event of insolvency or bankruptcy
of the Company, any right to require a proceeding first against the Company,
protest, notice and all demands whatsoever and covenants that the Guarantee will
not be discharged except by complete performance of the obligations contained in
the Securities, this Indenture, and such Guarantee.
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If any Holder or the Trustee is required by any court or otherwise to return to
the Company, any Guarantor, or any custodian, trustee, liquidator or other
similar official acting in relation to the Company or any Guarantor, any amount
paid by the Company or any Guarantor to the Trustee or such Holder, this
Guarantee, to the extent theretofore discharged, shall be reinstated in full
force and effect. Each Guarantor further agrees that, as between each Guarantor,
on the one hand, and the Holders and the Trustee, on the other hand, (x) the
maturity of the obligations guaranteed hereby may be accelerated as provided in
Article Six for the purpose of this Guarantee, notwithstanding any stay,
injunction or other prohibition preventing such acceleration in respect of the
obligations guaranteed hereby, and (y) in the event of any acceleration of such
obligations as provided in Article Six, such obligations (whether or not due and
payable) shall forthwith become due and payable by each Guarantor for the
purpose of this Guarantee.
SECTION 11.02. Severability.
------------
In case any provision of this Guarantee shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
SECTION 11.03. Release of a Guarantor.
----------------------
If the Securities are defeased in accordance with Section 9.01(c), or if
all of the Capital Stock of any Guarantor is sold (including by issuance or
otherwise) by the Company or any of its Subsidiaries in a transaction
constituting an Asset Disposition (or which, but for the provisions of clause
(c) of the definition of such term, would constitute an Asset Disposition), and,
if required by this Indenture, (x) the Net Available Proceeds from such Asset
Disposition are used in accordance with Section 4.05 or (y) the Company delivers
to the Trustee an Officers' Certificate covenanting that the Net Available
Proceeds from such Asset Disposition will be used in accordance with Section
4.05 and within the time limits specified by such Section 4.05, then such
Guarantor shall be released and discharged from all obligations under this
Article Eleven upon such use in the case of clause (x) or upon such delivery in
the case of clause (y). The Trustee shall, at the sole cost and expense of the
Company and upon receipt at the reasonable request of the Trustee of an Opinion
of Counsel that the provisions of this Section 11.03 have been complied with,
deliver an appropriate instrument evidencing such release upon receipt of a
request by the Company accompanied by an Officers'
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Certificate certifying as to the compliance with this Section. Any Guarantor not
so released remains liable for the full amount of principal of (premium, if any)
and interest on the Securities and the other obligations of the Company
hereunder as provided in this Article Eleven.
SECTION 11.04. Limitation of Guarantor's Liability.
-----------------------------------
Each Guarantor, and by its acceptance hereof each Holder and the Trustee,
hereby confirms that it is the intention of all such parties that the guarantee
by such Guarantor pursuant to its Guarantee not constitute a fraudulent transfer
or conveyance for purposes of title 11 of the United States Code, as amended,
the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or
any similar U.S. Federal or state or other applicable law. To effectuate the
foregoing intention, the Holders and such Guarantor hereby irrevocably agree
that the obligations of such Guarantor under the Guarantee shall be limited to
the maximum amount as will, after giving effect to all other contingent and
fixed liabilities of such Guarantor and after giving effect to any collections
from or payments made by or on behalf of any other Guarantor in respect of the
obligations of such other Guarantor under its Guarantee or pursuant to Section
11.05, result in the obligations of such Guarantor under the Guarantee not
constituting such fraudulent transfer or conveyance.
SECTION 11.05. Contribution.
------------
In order to provide for just and equitable contribution among the
Guarantors, the Guarantors agree, inter se, that in the event any payment or
----- --
distribution is made by any Guarantor (a "Funding Guarantor") under the
-----------------
Guarantee, such Funding Guarantor shall be entitled to a contribution from all
other Guarantors in a pro rata amount, based on the net assets of each Guarantor
--- ----
(including the Funding Guarantor), determined in accordance with GAAP, subject
to Section 11.04, for all payments, damages and expenses incurred by that
Funding Guarantor in discharging the Company's obligations with respect to the
Securities or any other Guarantor's obligations with respect to the Guarantee.
SECTION 11.06. Execution of Guarantee.
----------------------
To further evidence their Guarantee to the Holders, any Guarantor
required to Guarantee the Securities pursuant to Section 4.18 shall execute the
endorsement of Guarantee in substantially the form set forth in Exhibit A
---------
hereto, which en-
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dorsement shall be delivered to each Holder to be attached to each Security.
Each such Guarantor hereby agrees that its Guarantee set forth in Section 11.01
shall remain in full force and effect notwithstanding any failure to endorse on
each Security a notation of such Guarantee. Each such Guarantee shall be signed
on behalf of each Guarantor by its Chairman of the Board, its President or one
of its Vice Presidents prior to the authentication of the Security on which it
is endorsed, and the delivery of such Security by the Trustee, after the
authentication thereof hereunder, shall constitute due delivery of such
Guarantee on behalf of such Guarantor. Such signature upon the Guarantee may be
manual or facsimile signature of such officer and may be imprinted or otherwise
reproduced on the Guarantee, and in case such officer who shall have signed the
Guarantee shall cease to be such officer before the Security on which such
Guarantee is endorsed shall have been authenticated and delivered by the Trustee
or disposed of by the Company, such Security nevertheless may be authenticated
and delivered or disposed of as though the Person who signed the Guarantee had
not ceased to be such officer of the Guarantor.
SECTION 11.07. Subordination of Subrogation and Other Rights.
---------------------------------------------
Each Guarantor hereby agrees that any claim against the Company that
arises from the payment, performance or enforcement of such Guarantor's
obligations under its Guarantee or this Indenture, including, without
limitation, any right of subrogation, shall be subject and subordinate to, and
no payment with respect to any such claim of such Guarantor shall be made
before, the payment in full in cash of all outstanding Securities in accordance
with the provisions provided therefor in this Indenture.
ARTICLE TWELVE
SUBORDINATION OF GUARANTEE
SECTION 12.01. Guarantee Obligations Subordinated
to Senior Debt of Guarantor.
----------------------------------
Each Guarantor covenants and agrees, and the Trustee and each Holder of
the Securities by his acceptance thereof likewise covenant and agree, that the
Guarantees shall be issued subject to the provisions of this Article; and each
person holding any Security, whether upon original issue or upon
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transfer, assignment or exchange thereof, accepts and agrees that all payments
of the principal of, premium, if any, and interest (including Additional
Interest) on the Securities pursuant to the Guarantee made by or on behalf of
any Guarantor shall, to the extent and in the manner set forth in this Article,
be subordinated and junior in right of payment to the prior payment in full in
cash of all existing and future Senior Debt of such Guarantor.
SECTION 12.02. No Payment on Guarantees in Certain Circumstances.
-------------------------------------------------
(a) No direct or indirect payment by or on behalf of any Guarantor of
principal of, premium, if any, or interest (including Additional Interest) on
the Securities (other than payments to Holders from funds held in trust for the
benefit of Holders pursuant to Section 9.01) pursuant to such Guarantor's
Guarantee, whether pursuant to the terms of the Securities, upon acceleration or
otherwise, will be made if, at the time of such payment, there exists a default
in the payment of all or any portion of the obligations under or in respect of
any Designated Senior Debt of such Guarantor whether at maturity, on account of
mandatory redemption or prepayment, acceleration or otherwise, and such default
shall not have been cured or waived or the benefits of this sentence waived by
or on behalf of Holders of Designated Senior Debt. In addition, during the
continuance of any non-payment default or non-payment event of default with
respect to any Designated Senior Debt pursuant to which the maturity thereof may
be accelerated, and upon receipt by the Trustee of written notice (the
"Guarantor Payment Blockage Notice") from a holder or holders of such Designated
---------------------------------
Senior Debt or the trustee or agent acting on behalf of such Designated Senior
Debt, then, unless and until such default or event of default has been cured or
waived or has ceased to exist or such Designated Senior Debt has been discharged
or repaid in full in cash, or the requisite holders of such Designated Senior
Debt have otherwise agreed in writing, no payment or distribution will be made
by or on behalf of such Guarantor on account of or with respect to the
Securities (other than payments to Holders from funds held in trust for the
benefit of Holders pursuant to Section 9.01), during a period (a "Guarantor
---------
Blockage Period") commencing on the date of receipt of such Guarantor Payment
---------------
Blockage Notice by the Trustee and ending 179 days thereafter.
Notwithstanding anything herein or in the Securities to the contrary,
(x) in no event shall a Guarantor Blockage Period extend beyond 179 days from
the date the Guarantor Payment
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Blockage Notice was given and (y) there must be 180 days in any 365 day period
during which no Guarantor Payment Blockage Period is in effect with respect to
such Guarantor. Not more than one Guarantor Blockage Period may be commenced
with respect to each Guarantor during any period of 360 consecutive days. No
default or event of default that existed or was continuing on the date of
commencement of any Guarantor Blockage Period with respect to the Designated
Senior Debt initiating such Guarantor Payment Blockage Period may be, or be
made, the basis for the commencement of any Guarantor Blockage Period by the
holder or holders of such Designated Senior Debt or the trustee or agent acting
on behalf of such Designated Senior Debt, whether or not within a period of 360
consecutive days, unless such default or event of default has been cured or
waived for a period of not less than 90 consecutive days.
(b) In the event that, notwithstanding the foregoing, any payment
shall be received by the Trustee or any Holder when such payment is prohibited
by Section 12.02(a), such payment shall be held in trust for the benefit of, and
shall be paid over or delivered to, the holders of such Designated Senior Debt
or their respective representatives, or to the trustee or trustees under any
indenture pursuant to which any of such Designated Senior Debt may have been
issued, as their respective interests may appear, but only to the extent that,
upon notice from the Trustee to the holders of such Designated Senior Debt that
such prohibited payment has been made, the holders of such Designated Senior
Debt (or their representative or representatives or a trustee) notify the
Trustee in writing of the amounts then due and owing on such Designated Senior
Debt, if any, and only the amounts specified in such notice to the Trustee shall
be paid to the holders of such Designated Senior Debt.
SECTION 12.03. Payment Over of Proceeds upon Dissolution, etc.
----------------------------------------------
(a) Upon any payment or distribution of assets or securities of any
Guarantor of any kind or character (whether in cash, property or securities)
upon any dissolution or winding-up or total or partial liquidation or
reorganization of such Guarantor, whether voluntary or involuntary or in
bankruptcy, insolvency, receivership or other proceedings, all amounts due or to
become due with respect to all Senior Debt of such Guarantor shall first be paid
in full in cash before the Holders or the Trustee on their behalf shall be
entitled to receive any payment by such Guarantor of the principal of, premium,
if any, or interest on the Securities pursuant to such Guarantor's Guarantee, or
any payment to acquire any of the Se-
-104-
curities for cash, property or securities, or any distribution with respect to
the Securities of any cash, property or securities. Before any payment may be
made by, or on behalf of, any Guarantor of the principal of, premium, if any, or
interest on the Securities upon any such dissolution or winding-up or
liquidation or reorganization, any payment or distribution of assets or
securities of such Guarantor of any kind or character, whether in cash, property
or securities, to which the Holders of the Securities or the Trustee on their
behalf would be entitled, but for the subordination provisions of this
Indenture, shall be made by such Guarantor or by any receiver, trustee in
bankruptcy, liquidating trustee, agent or other Person making such payment or
distribution, directly to the holders of the Senior Debt of such Guarantor or
their representative(s) or to the trustee(s) under any indenture pursuant to
which any of such Senior Debt may have been issued, as their respective
interests may appear, to the extent necessary to pay all such Senior Debt in
full after giving effect to any concurrent payment, distribution or provision
therefor to or for the holders of such Senior Debt.
(b) In the event that, notwithstanding the foregoing provision
prohibiting such payment or distribution, any payment or distribution of assets
or securities of any kind or character, whether in cash, property or securities,
shall be received by the Trustee or any Holder at a time when such payment or
distribution is prohibited by Section 12.03(a) and before all obligations in
respect of the Senior Debt of such Guarantor are paid in full, or payment
provided for, such payment or distribution shall be received and held in trust
for the benefit of, and shall be paid over or delivered to, the holders of such
Senior Debt or their respective representative(s), or to the trustee(s) under
any indenture pursuant to which any of such Senior Debt may have been issued, as
their respective interests may appear, for application to the payment of such
Senior Debt remaining unpaid until all such Senior Debt has been paid in full
after giving effect to any concurrent payment, distribution or provision
therefor to or for the holders of such Senior Debt.
SECTION 12.04. Subrogation.
-----------
Upon the payment in full of all Senior Debt of a Guarantor, or
provision for payment, the Holders shall be subrogated (equally and ratably with
all pari passu Indebtedness) to the rights of the holders of such Senior Debt to
---- -----
receive payments or distributions of cash, property or securities of, premium,
if any, such Guarantor made on such Senior Debt until
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the principal of and interest on the Securities shall be paid in full; and, for
the purposes of such subrogation, no payments or distributions to the holders of
such Senior Debt of any cash, property or securities to which the Holders or the
Trustee on their behalf would be entitled except for the provisions of this
Article, and no payment over pursuant to the provisions of this Article to the
holders of such Senior Debt by Holders or the Trustee on their behalf shall, as
between such Guarantor, its creditors other than holders of such Senior Debt,
and the Holders, be deemed to be a payment by such Guarantor to or on account of
such Senior Debt. It is understood that the provisions of this Article are and
are intended solely for the purpose of defining the relative rights of the
Holders, on the one hand, and the holders of Senior Debt of the Guarantors, on
the other hand.
If any payment or distribution to which the Holders would otherwise
have been entitled but for the provisions of this Article shall have been
applied, pursuant to the provisions of this Article, to the payment of all
amounts payable under Senior Debt, then and in such case, the Holders shall be
entitled to receive from the holders of such Senior Debt any payments or
distributions received by such holders of Senior Debt in excess of the amount
required to make payment in full, or provision for payment, of such Senior Debt.
SECTION 12.05. Obligations of Guarantors Unconditional.
---------------------------------------
Nothing contained in this Article or elsewhere in this Indenture or
in the Securities or the Guarantee is intended to or shall impair, as among the
Guarantors and the Holders, the obligation of each Guarantor, which is absolute
and unconditional, to pay to the Holders the principal of, premium, if any, and
interest on the Securities as and when the same shall become due and payable in
accordance with the terms of the Guarantee, or is intended to or shall affect
the relative rights of the Holders and creditors of any Guarantor other than the
holders of Senior Debt, nor shall anything herein or therein prevent any Holder
or the Trustee on their behalf from exercising all remedies otherwise permitted
by applicable law upon default under this Indenture, subject to the rights, if
any, under this Article of the holders of Senior Debt in respect of cash,
property or securities of any Guarantor received upon the exercise of any such
remedy.
Without limiting the generality of the foregoing, nothing contained
in this Article shall restrict the right of the Trustee or the Holders to take
any action to declare the
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Securities to be due and payable prior to their stated maturity pursuant to
Section 6.01 or to pursue any rights or remedies hereunder; provided, however,
-------- -------
that all Senior Debt of any Guarantor then due and payable shall first be paid
in full before the Holders or the Trustee are entitled to receive any direct or
indirect payment from such Guarantor of principal of or interest on the
Securities pursuant to such Guarantor's Guarantee.
SECTION 12.06. Notice to Trustee.
-----------------
The Company shall give prompt written notice to the Trustee of any
fact known to the Company or such Guarantor which would prohibit the making of
any payment to or by the Trustee in respect of the Securities pursuant to the
provisions of this Article. Failure to give such notice to the Trustee shall not
affect the subordination of the Securities to Senior Debt of Guarantors. The
Trustee shall not be charged with knowledge of the existence of any default or
event of default with respect to any Senior Debt or of any other facts which
would prohibit the making of any payment to or by the Trustee unless and until
the Trustee shall have received notice in writing to that effect signed by an
Officer of the Company, or by a holder of Senior Debt or trustee or agent
therefor; and prior to the receipt of any such written notice, the Trustee
shall, subject to Article Seven, be entitled to assume that no such facts exist;
provided, however, that if the Trustee shall not have received the notice
-------- -------
provided for in this Section 12.06 at least three Business Days prior to the
date upon which by the terms of this Indenture any moneys shall become payable
for any purpose (including, without limitation, the payment of the principal of,
premium, if any, or interest on any Security), then, regardless of anything
herein to the contrary, the Trustee shall have full power and authority to
receive any moneys from any Guarantor and to apply the same to the purpose for
which they were received, and shall not be affected by any notice to the
contrary which may be received by it on or after such prior date. Nothing
contained in this Section 12.06 shall limit the right of the holders of Senior
Debt of a Guarantor to recover payments as contemplated by Section 12.02 or
12.03. The Trustee shall be entitled to rely on the delivery to it of a written
notice by a Person representing himself or itself to be a holder of any Senior
Debt of a Guarantor (or a trustee on behalf of, or other representative of, such
holder) to establish that such notice has been given by a holder of such Senior
Debt of a Guarantor or a trustee or representative on behalf of any such holder.
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In the event that the Trustee determines in good faith that any
evidence is required with respect to the right of any Person as a holder of
Senior Debt of a Guarantor to participate in any payment or distribution
pursuant to this Article, the Trustee may request such Person to furnish
evidence to the reasonable satisfaction of the Trustee as to the amount of such
Senior Debt held by such Person, the extent to which such Person is entitled to
participate in such payment or distribution and any other facts pertinent to the
rights of such Person under this Article, and if such evidence is not furnished,
the Trustee may defer any payment to such Person pending judicial determination
as to the right of such Person to receive such payment.
SECTION 12.07. Reliance on Judicial Order or Certificate of Liquidating Agent.
--------------------------------------------------------------
Upon any payment or distribution of assets or securities of a
Guarantor referred to in this Article, the Trustee and the Holders of the
Securities shall be entitled to rely upon any order or decree made by any court
of competent jurisdiction in which bankruptcy, dissolution, winding-up,
liquidation or reorganization proceedings are pending, or upon a certificate of
the receiver, trustee in bankruptcy, liquidating trustee, agent or other person
making such payment or distribution, delivered to the Trustee or to the Holders
for the purpose of ascertaining the persons entitled to participate in such
distribution, the holders of Senior Debt of such Guarantor and other
indebtedness of such Guarantor, the amount thereof or payable thereon, the
amount or amounts paid or distributed thereon and all other facts pertinent
thereto or to this Article.
SECTION 12.08. Trustee's Relation to Senior Debt of Guarantors.
-----------------------------------------------
The Trustee and any Paying Agent shall be entitled to all the rights
set forth in this Article with respect to any Senior Debt of Guarantors which
may at any time be held by it in its individual or any other capacity to the
same extent as any other holder of such Senior Debt, and nothing in this
Indenture shall deprive the Trustee or any Paying Agent of any of its rights as
such holder.
With respect to the holders of a Guarantor's Senior Debt, the Trustee
undertakes to perform or to observe only such of its covenants and obligations
as are specifically set forth in this Article, and no implied covenants or
obligations with
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respect to the holders of such Senior Debt shall be read into this Indenture
against the Trustee. The Trustee shall not be deemed to owe any fiduciary duty
to the holders of Senior Debt of Guarantors (except as provided in Section
12.03(b)). The Trustee shall not be charged with knowledge of the existence of
Senior Debt or of any facts that would prohibit any payment hereunder unless the
Trustee shall have received written notice to that effect at the address of the
Trustee set forth in Section 13.02.
SECTION 12.09. Subordination Rights Not Impaired by Acts or Omissions of the
Guarantors or Holders of Senior Debt of Guarantors.
-------------------------------------------------------------
No right of any present or future holders of any Senior Debt of
Guarantors to enforce subordination as provided herein shall at any time in any
way be prejudiced or impaired by any act or failure to act on the part of any
Guarantor or by any act or failure to act, in good faith, by any such holder, or
by any noncompliance by any Guarantor with the terms of this Indenture,
regardless of any knowledge thereof which any such holder may have or otherwise
be charged with. The provisions of this Article are intended to be for the
benefit of, and shall be enforceable directly by, the holders of Senior Debt of
Guarantors.
SECTION 12.10. Securityholders Authorize Trustee to Effectuate Subordination of
Guarantee.
----------------------------------------------------------------
Each Holder of Securities by his acceptance of such Securities
authorizes and expressly directs the Trustee on his behalf to take such action
as may be necessary or appropriate to effectuate the subordination provided in
this Article, and appoints the Trustee his attorney-in-fact for such purposes,
including, in the event of any dissolution, winding up, liquidation or
reorganization of any Guarantor (whether in bankruptcy, insolvency,
receivership, reorganization or similar proceedings or upon an assignment for
the benefit of creditors or otherwise) tending towards liquidation of the
business and assets of such Guarantor, the filing of a claim for the unpaid
balance of its or his Securities in the form required in those proceedings.
SECTION 12.11. This Article Not to Prevent Events of Default.
---------------------------------------------
The failure to make a payment on account of principal of or interest
on the Securities by reason of any provision of
-109-
this Article shall not be construed as preventing the occurrence of an Event of
Default specified in Section 6.01(a), (b) or (c).
SECTION 12.12. Trustee's Compensation Not Prejudiced.
-------------------------------------
Nothing in this Article shall apply to amounts due to the Trustee
pursuant to other sections in this Indenture.
SECTION 12.13. No Waiver of Guarantee Subordination Provisions.
-----------------------------------------------
Without in any way limiting the generality of Section 12.09, the
holders of Senior Debt of Guarantors may, at any time and from time to time,
without the consent of or notice to the Trustee or the Holders of the
Securities, without incurring responsibility to the Holders of the Securities
and without impairing or releasing the subordination provided in this Article or
the obligations hereunder of the Holders of the Securities to the holders of
Senior Debt of Guarantors, do any one or more of the following: (a) change the
manner, place or terms of payment or extend the time of payment of, or renew or
alter, Senior Debt of Guarantors or any instrument evidencing the same or any
agreement under which such Senior Debt is outstanding or secured; (b) sell,
exchange, release or otherwise deal with any property pledged, mortgaged or
otherwise securing such Senior Debt; (c) release any Person liable in any manner
for the collection of such Senior Debt; and (d) exercise or refrain from
exercising any rights against any Guarantor and any other Person.
SECTION 12.14. Payments May Be Paid Prior to Dissolution.
-----------------------------------------
Nothing contained in this Article or elsewhere in this Indenture shall
prevent (i) a Guarantor, except under the conditions described in Section 12.02,
from making payments of principal of and interest on the Securities, or from
depositing with the Trustee any moneys for such payments, or (ii) the
application by the Trustee of any moneys deposited with it for the purpose of
making such payments of principal of, premium, if any, and interest on the
Securities, to the holders entitled thereto unless at least three Business Days
prior to the date upon which such payment becomes due and payable, the Trustee
shall have received the written notice provided for in Section 12.02(b) or in
Section 12.06.
-110-
ARTICLE THIRTEEN
MISCELLANEOUS
SECTION 13.01. Trust Indenture Act Controls.
----------------------------
This Indenture is subject to the provisions of the TIA that are
required to be a part of this Indenture, and shall, to the extent applicable, be
governed by such provisions. If any provision of this Indenture modifies any TIA
provision that may be so modified, such TIA provision shall be deemed to apply
to this Indenture as so modified. If any provision of this Indenture excludes
any TIA provision that may be so excluded, such TIA provision shall be excluded
from this Indenture.
The provisions of TIA (S)(S) 310 through 317 that impose duties on any
Person (including the provisions automatically deemed included unless expressly
excluded by this Indenture) are a part of and govern this Indenture, whether or
not physically contained herein.
SECTION 13.02. Notices.
-------
Any notice or communication shall be sufficiently given if in writing
and delivered in person, by facsimile, by overnight courier, or mailed by first-
class mail addressed as follows:
if to the Company:
Triton PCS, Inc.
000 Xxxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxxxxxx 00000
Attention: Chief Executive Officer
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
with a copy to:
Xxxxx X. Xxxxxx, Esq.
Xxxxxx & Xxxxxxx
0000 Xxxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000-0000
-111-
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
if to the Trustee:
PNC Bank, National Association
0000 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Corporate Trust
Administration
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
The Company or the Trustee by notice to the other may designate
additional or different addresses for subsequent notices or communications.
All notices and communications (other than those sent to Holders)
shall be deemed to have been duly given: at the time delivered by hand, if
personally delivered; five Business Days after being deposited in the mail,
postage prepaid, if mailed; when telephonic acknowledgment of receipt is
obtained, if telecopied; and the next Business Day after timely delivery to the
courier, if sent by overnight courier promising next Business Day delivery.
Any notice or communication to a Holder shall be mailed, by first
class mail, postage prepaid, or by overnight air courier promising next Business
Day delivery, including any notice delivered in connection with TIA (S)(S)
310(b), 313(c), 314(a) and 315(b), to him at his address as set forth on the
registration books of the Registrar and shall be sufficiently given to him if so
mailed within the time prescribed. To the extent required by the TIA, any notice
or communication shall also be mailed to any Person described in TIA (S) 313(c).
Failure to mail a notice or communication to a Securityholder or any
defect in it shall not affect its sufficiency with respect to other
Securityholders. If a notice or communication is given in the manner provided
above, it is duly given, whether or not the addressee receives it.
-112-
SECTION 13.03. Communications by Holders with Other Holders.
--------------------------------------------
Securityholders may communicate pursuant to TIA (S) 312(b) with other
Securityholders with respect to their rights under this Indenture or the
Securities. The Company, the Trustee, the Registrar and any other person shall
have the protection of TIA (S) 312(c).
SECTION 13.04. Certificate and Opinion as to Conditions Precedent.
--------------------------------------------------
Upon any request or application by the Company to the Trustee to take
or refrain from taking any action under this Indenture, the Company shall
furnish to the Trustee at the request of the Trustee:
(1) an Officers' Certificate in form and substance satisfactory to
the Trustee stating that, in the opinion of the signers, all conditions
precedent, if any, provided for in this Indenture relating to the proposed
action have been complied with;
(2) an Opinion of Counsel in form and substance satisfactory to the
Trustee stating that, in the opinion of such counsel, all such conditions
precedent have been complied with; and
(3) where applicable, a certificate or opinion by an independent
certified public accountant satisfactory to the Trustee that complies with
TIA (S) 314(c).
SECTION 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 shall include:
(1) a statement that the person making such certificate or opinion
has read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of such person, he has made such
examination or investigation as is neces-
-113-
sary to enable him to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(4) a statement as to whether or not, in the opinion of such person,
such condition or covenant has been complied with; provided, however, that
-------- -------
with respect to matters of fact an Opinion of Counsel may rely on an
Officers' Certificate or certificates of public officials.
SECTION 13.06. Rules by Trustee, Paying Agent, Registrar.
-----------------------------------------
The Trustee may make reasonable rules for action by or at a meeting of
Securityholders. The Paying Agent or Registrar may make reasonable rules for
its functions.
SECTION 13.07. Governing Law.
-------------
The laws of the State of New York shall govern this Indenture, the
Securities and the Guarantee without regard to principles of conflicts of law.
SECTION 13.08. No Recourse Against Others.
--------------------------
No director, officer, employee or stockholder, as such, of the Company
or any of its Subsidiaries shall have any liability for any obligations of the
Company or any Guarantor under the Securities, the Guarantees or this Indenture
or for any claim based on, in respect of or by reason of such obligations or
their creation. Each Securityholder by accepting a Security waives and releases
all such liability. The waiver and release are part of the consideration for
issuance of the Securities.
SECTION 13.09. Successors.
----------
All agreements of the Company in this Indenture and the Securities
shall bind its successor. All agreements of each Guarantor in this Indenture and
the Guarantee of such Guarantor shall bind its successor. All agreements of the
Trustee in this Indenture shall bind its successor.
SECTION 13.10. Counterpart Originals.
---------------------
The parties may sign any number of copies of this Indenture. Each
signed copy shall be an original, but all of them together represent the same
agreement.
-114-
SECTION 13.11. Severability.
------------
In case any provision in this Indenture, in the Securities or in the
Guarantees shall be invalid, illegal or unenforceable, the validity, legality
and enforceability of the remaining provisions shall not in any way be affected
or impaired thereby, and a Holder shall have no claim therefor against any party
hereto.
SECTION 13.12. No Adverse Interpretation of Other Agreements.
---------------------------------------------
This Indenture may not be used to interpret another indenture, loan or
debt agreement of the Company or a Subsidiary. Any such indenture, loan or debt
agreement may not be used to interpret this Indenture.
SECTION 13.13. Legal Holidays.
--------------
If a payment date is not a Business Day at a place of payment, payment
may be made at that place on the next succeeding Business Day, and no interest
shall accrue for the intervening period.
[Signature Page Follows]
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed as of the date first written above.
TRITON PCS, INC.
By: __________________________________
Name:
Title:
GUARANTORS:
TRITON MANAGEMENT COMPANY, INC.
By: __________________________________
Name:
Title:
TRITON PCS HOLDINGS COMPANY L.L.C.
TRITON PCS PROPERTY COMPANY L.L.C.
TRITON PCS EQUIPMENT COMPANY L.L.C.
TRITON PCS OPERATING COMPANY L.L.C.
TRITON PCS LICENSE COMPANY L.L.C.
By: TRITON MANAGEMENT COMPANY,
INC., as Manager of each of the
foregoing
By: __________________________________
Name:
Title:
-2-
PNC BANK, NATIONAL ASSOCIATION
as Trustee
By: __________________________________
Name:
Title:
EXHIBIT A
TRITON PCS, INC.
CUSIP No.
No. 1 $
11% SENIOR SUBORDINATED DISCOUNT NOTE DUE 2008
This security is issued with original issue discount for purposes of
Section 1271 et seq. of the Internal Revenue Code. For each $1,000 of aggregate
------
principal amount at maturity of this Security, the issue price is $585.95 and
the amount of original issue discount is $964.05. The issue date of this
Security is May 4, 1998 and the yield to maturity is 11%.
TRITON PCS, INC. promises to pay to [ ] or registered
assigns the principal sum at maturity of [ ] Dollars on May 1,
2008.
Interest Payment Dates: May 1 and November 1, beginning
November 1, 2003.
Record Dates: April 15 and October 15.
IN WITNESS WHEREOF, TRITON PCS, INC. has caused this instrument to be
executed by duly authorized officers.
TRITON PCS, INC.
By: __________________________________
Name:
Title:
Dated: May 4, 1998 By: __________________________________
Name:
Title:
-2-
Certificate of Authentication:
This is one of the 11% Senior Subordinated Discount Notes due 2008
referred to in the within-mentioned Indenture.
PNC BANK, NATIONAL ASSOCIATION,
as Trustee
By_______________________ Date: May 4, 1998
Authorized Signatory
(REVERSE OF SECURITY)
TRITON PCS, INC.
11% Senior Subordinated Discount Note due 2008
1. Interest.
--------
Triton PCS, Inc., a Delaware corporation (the "Company"),
promises to pay interest at the rate of 11% per annum on the principal amount of
this Security, until the principal hereof is paid or made available for payment.
Interest on the Securities will accrue from and including the most recent date
to which interest has been paid or, if no interest has been paid, from and
including May 1, 2003, through but excluding the date on which interest is paid.
If an Interest Payment Date falls on a day that is not a Business Day, the
interest payment to be made on such Interest Payment Date will be made on the
next succeeding Business Day with the same force and effect as if made on such
Interest Payment Date, and no additional interest will accrue as a result of
such delayed payment. Interest will be computed on the basis of a 360-day year
of twelve 30-day months.
The principal of this Security shall not bear or accrue
interest until May 1, 2003, except in the case of a default in payment of
principal and/or premium, if any, upon acceleration, redemption or purchase and,
in such case, the overdue principal and any overdue premium shall bear interest
at the rate of 11% per annum (compounded semiannually on each May 1 and November
--- -----
1 (to the extent that the payment of such interest shall be legally
enforceable), from the dates such amounts are due until they are paid or duly
provided for. To the extent, but only to the extent, interest on amounts in
default constituting original issue discount prior to May 1, 2003 is not
permitted by law, original issue discount shall continue to accrete until paid
or duly provided for. On or after May 1, 2003, interest on overdue principal and
premium, if, any, and, to the extent permitted by law, on overdue installments
of interest will accrue, until the principal and premium, if any, is paid or
duly provided for, at the rate of 11% per annum. Interest on any overdue
--- -----
principal or premium shall be payable on demand.
-2-
2. Method of Payment.
-----------------
The interest payable on the Securities, and punctually paid or
duly provided for, on any Interest Payment Date will, as provided in the
Indenture (as defined below), be paid to the Person in whose name this Security
is registered at the close of business on the regular record date, which shall
be the April 15 or October 15 (whether or not a Business Day) next preceding
such Interest Payment Date. Any such interest not so punctually paid or duly
provided for, and any interest payable on such defaulted interest (to the extent
lawful), will forthwith cease to be payable to the Holder on such regular record
date and shall be paid to the person in whose name this Security is registered
at the close of business on a special record date for the payment of such
defaulted interest to be fixed by the Company, notice of which shall be given to
Holders not less than 15 days prior to such special record date. Payment of the
principal of and interest on this Security will be made at the corporate trust
office of the Trustee in Pittsburgh, Pennsylvania and at any other office or
agency maintained by the Company for such purpose, in such coin or currency of
the United States of America as at the time of payment is legal tender for
payment of public and private debts; provided, however, that at the option of
-------- -------
the Company payment of interest may be made by check mailed to the address of
the Person entitled thereto as such address shall appear in the Security
register.
3. Paying Agent and Registrar.
--------------------------
Initially, PNC Bank, National Association (the "Trustee") will
act as Paying Agent and Registrar. The Company may change any Paying Agent,
Registrar or co-Registrar without notice to the Holders of Securities. The
Company or any of its Subsidiaries may act as Registrar or co-Registrar but may
not act as Paying Agent.
4. Indenture.
---------
This Security is one of a duly authorized issue of Securities
of the Company, designated as its 11% Senior Subordinated Discount Notes due
2008 (the "Securities"), limited to $450,000,000 in gross proceeds to the
Company (except for Securities issued in substitution for destroyed, lost or
stolen Securities) issuable under an indenture dated as of May 4, 1998 (the
"Indenture"), among the Company, the guarantors party thereto (the "Guarantors")
and the Trustee. The terms of the Securities include those stated in the
Indenture and those made part of the Indenture by the Trust Indenture Act of
1939 (the
-3-
"Act") (15 U.S. Code (S)(S) 77aaa-77bbbb) as in effect on the date of the
Indenture. The Securities are subject to all such terms, and Holders of
Securities are referred to the Indenture and the Act for a statement of them.
Each Securityholder, by accepting a Security, agrees to be bound to all of the
terms and provisions of the Indenture, as the same may be amended from time to
time. Payment on each Security is guaranteed on a senior subordinated basis,
jointly and severally, by the Guarantors pursuant to Article Eleven of the
Indenture.
The Securities are subordinated in right of payment to all
Senior Debt of the Company to the extent and in the manner provided in the
Indenture. Each Holder of a Security, by accepting a Security, agrees to such
subordination, authorizes the Trustee to give effect to such subordination and
appoints the Trustee as attorney-in-fact for such purpose.
Capitalized terms contained in this Security to the extent not
defined herein shall have the meanings assigned to them in the Indenture.
5. Optional Redemption.
-------------------
These Securities will be subject to redemption, at the option
of the Company, in whole or in part, at any time on or after May 1, 2003 and
prior to maturity, upon not less than 30 nor more than 60 days' notice mailed to
each Holder of Securities to be redeemed at its address appearing in the
register for the Securities, in amounts of $1,000 or an integral multiple of
$1,000, at the following redemption prices (expressed as percentages of
principal amount), plus accrued interest, if any, to but excluding the date
fixed for redemption (subject to the right of Holders on the relevant Record
Date to receive interest, if any, due on an interest payment date that is on or
prior to the date fixed for redemption), if redeemed during the 12-month period
beginning on May 1 of the years indicated:
YEAR PERCENTAGE
2003................................... 105.50%
2004................................... 103.67
2005................................... 101.84
2006 and thereafter.................... 100.00
In addition, on or prior to May 1, 2001, the Issuers may redeem up to 35% of the
principal amount at maturity of Securities issued under the Indenture at a
redemption price equal to 111% of the Accreted Value to the redemption date with
the net proceeds
-4-
of one or more Equity Offerings of Qualified Stock of (i) the Company, (ii)
Triton PCS Holdings, Inc. or (iii) a special purpose corporation (a "Special
Purpose Corporation") formed to own Qualified Stock of the Company or Triton PCS
Holdings, Inc., in any such case; provided that at least 65% of the aggregate
--------
principal amount at maturity of Securities issued under the Indenture would
remain outstanding immediately after giving effect to such redemption. Notice of
redemption pursuant to this paragraph must be mailed to holders of Securities
not later than 60 days following the consummation of the relevant Equity
Offering.
Selection of Securities for any partial redemption shall be
made by the Trustee, in accordance with the rules of any national securities
exchange on which the Securities may be listed or, if the Securities are not so
listed, pro rata or by lot or in such other manner as the Trustee shall deem
appropriate and fair. Securities in denominations larger than $1,000 may be
redeemed in part but only in integral multiples of $1,000. Notice of redemption
will be mailed before the date fixed for redemption to each holder of Securities
to be redeemed at his or her registered address. On and after the date fixed for
redemption, interest will cease to accrue on Securities or portions thereof
called for redemption.
The Securities will not have the benefit of any sinking fund.
6. Offer to Purchase upon Occurrence
of a Change of Control.
----------------------------------
Within 30 days following a Change of Control, the Company will
offer to purchase all outstanding Securities at a purchase price in cash equal
to (i) 101% of the Accreted Value on the Purchase Date if such date is on or
before May 1, 2003 and (ii) 101% of the principal amount at maturity thereof
plus any accrued and unpaid interest thereon, if any, to the Purchase Date if
such date is after May 1, 2003.
7. Notice of Redemption.
--------------------
Notice of redemption will be mailed by first class mail at
least 30 days but not more than 60 days before the redemption date to each
Holder of Securities to be redeemed at his registered address. Securities in
denominations larger than $1,000 may be redeemed in part. On and after the
redemption date, interest ceases to accrue on those Securities or portion of
them called for redemption.
-5-
8. Denominations; Transfer; Exchange.
---------------------------------
The Securities are in registered form without coupons in
denominations of $1,000 and integral multiples of $1,000. A Holder may transfer
or exchange Securities in accordance with the Indenture. The Registrar may
require a Holder, among other things, to furnish appropriate endorsements and
transfer documents and to pay any taxes and fees required by law or permitted by
the Indenture. The Registrar need not transfer or exchange any Securities
selected for redemption.
9. Persons Deemed Owners.
---------------------
The registered Holder of a Security may be treated as the
owner of it for all purposes.
10. Unclaimed Funds.
---------------
If funds for the payment of principal or interest remain
unclaimed for two years, the Trustee or Paying Agent will repay the funds to the
Company at its request. After such repayment Holders of Securities entitled to
such funds must look to the Company for payment unless an abandoned property law
designates another person.
11. Discharge Prior to Redemption or Maturity.
-----------------------------------------
The Indenture will be discharged and canceled except for
certain Sections thereof, subject to the terms of the Indenture, upon the
payment of all the Securities or upon the irrevocable deposit with the Trustee
of funds or United States Government Obligations sufficient for such payment or
redemption.
12. Amendment; Supplement; Waiver.
-----------------------------
Subject to certain exceptions, the Indenture or the Securities
may be amended or supplemented with the consent of the Holders of at least a
majority in principal amount at maturity of the outstanding Securities, and any
past default or compliance with any provision may be waived with the consent of
the Holders of a majority in aggregate principal amount at maturity of the
outstanding Securities. Without notice to or the consent of any Holder, the
Company, the Guarantors and the Trustee may amend or supplement the Indenture or
the Securities to cure any ambiguity, defect or inconsistency, or to make any
change that does not adversely affect the rights of any Holder of Securities.
-6-
13. Restrictive Covenants.
---------------------
The Indenture restricts, among other things, the ability of
the Company or any Restricted Subsidiary to permit any Liens to be imposed on
their assets, to make certain Restricted Payments and Investments, limits the
Indebtedness which the Company or any Restricted Subsidiary may incur and limits
the terms on which the Company may engage in certain Asset Dispositions. The
Company is also obligated under certain circumstances to make an offer to
purchase Securities with the net cash proceeds of certain Asset Dispositions.
The Company must report quarterly to the Trustee on compliance with the
covenants in the Indenture.
14. Successor Corporation.
---------------------
Pursuant to the Indenture, the ability of the Company to
consolidate with, merge with or into or transfer its assets to another person is
conditioned upon certain requirements, including certain financial requirements
applicable to the surviving Person.
15. Defaults and Remedies.
---------------------
If an Event of Default shall occur and be continuing, the
Accreted Value of or principal of all of the outstanding Securities, plus all
accrued and unpaid interest, if any, to the date the Securities become due and
payable, may be declared due and payable in the manner and with the effect
provided in the Indenture.
16. Trustee Dealings with Company.
-----------------------------
The Trustee in its individual or any other capacity, may
become the owner or pledgee of Securities and make loans to, accept deposits
from, and perform services for the Company or its Affiliates, and may otherwise
deal with the Company or its Affiliates, as if it were not Trustee.
17. No Recourse Against Others.
--------------------------
No director, officer, employee or stockholder, as such, of the
Company or any of its Subsidiaries shall have any liability for any obligations
of the Company or any Guarantor under the Securities, the Guarantee or the
Indenture or for any claim based on, in respect of or by reason of such
obligations or their creation. Each Holder of a Security by accepting a Security
waives and releases all such liability. The waiver
-7-
and release are part of the consideration for the issue of the Securities.
18. Authentication.
--------------
This Security shall not be valid until the Trustee signs the
certificate of authentication on the other side of this Security.
19. Abbreviations.
-------------
Customary abbreviations may be used in the name of
Securityholder or an assignee, such as TEN COM (= tenants in common), TEN ENT (=
tenants by the entireties), JT TEN (= joint tenants with right of survivorship
and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts
to Minors Act).
20. CUSIP Numbers.
-------------
Pursuant to a recommendation promulgated by the Committee on
Uniform Security Identification Procedures, the Company has caused CUSIP numbers
to be printed on the Securities and has directed the Trustee to use CUSIP
numbers in notices of redemption as a convenience to Securityholders. No
representation is made as to the accuracy of such numbers either as printed on
the Securities or as contained in any notice of redemption and reliance may be
placed only on the other identification numbers placed thereon.
21. Governing Law.
-------------
The laws of the State of New York shall govern the Indenture,
this Security and the Guarantee without regard to principles of conflicts of
law.
The Company will furnish to any Holder of record of Securities
upon written request and without charge a copy of the Indenture.
[FORM OF NOTATION ON SECURITY RELATING TO GUARANTEE]
SENIOR SUBORDINATED GUARANTEE
The Guarantor(s) (as defined in the Indenture referred to in the
Security upon which this notation is endorsed) hereby, jointly and severally,
unconditionally guarantee on a senior subordinated basis (such guarantee by each
Guarantor being referred to herein as the "Guarantee") the due and punctual
payment of the Accreted Value or the principal of, premium, if any, and interest
on the Securities, whether at maturity, by acceleration or otherwise, the due
and punctual payment of interest on the overdue Accreted Value or the principal,
premium and interest, if any, on the Securities, and the due and punctual
performance of all other obligations of the Company to the Holders or the
Trustee, all in accordance with the terms set forth in Article Eleven of the
Indenture.
The obligations of each Guarantor to the Holders of Securities and to
the Trustee pursuant to the Guarantee and the Indenture are expressly set forth,
and are expressly subordinated and subject in right of payment to the prior
payment in full of all Senior Debt of such Guarantor, to the extent and in the
manner provided, in Article Twelve of the Indenture, and reference is hereby
made to such Indenture for the precise terms of the Guarantee therein made.
The Guarantee shall not be valid or obligatory for any purpose until
the certificate of authentication on the Securities upon which the Guarantee is
noted shall have been executed by the Trustee under the Indenture by the manual
signature of one of its authorized officers.
This Guarantee shall be governed by and construed in accordance with
the laws of the State of New York without regard to principles of conflicts of
law.
This Guarantee is subject to release upon the terms set forth in the
Indenture.
[GUARANTORS]
By: _________________________________
Name:
Title:
ASSIGNMENT FORM
If you the Holder want to assign this Security, fill in the form below
and have your signature guaranteed:
I or we assign and transfer this Security to:
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
(Print or type name, address and zip code and
social security or tax ID number of assignee)
and irrevocably appoint _____________________________________, agent to transfer
this Security on the books of the Company. The agent may substitute another to
act for him.
Dated: ________________ Signed: _________________________________________
(Sign exactly as
name appears on the
other side of this
Security)
Signature Guarantee: __________________________________________________________
SIGNATURE GUARANTEE
Signatures must be guaranteed by an "eligible guarantor institution"
meeting the requirements of the Registrar, which requirements include membership
or participation in the Security Transfer Agent Medallion Program ("STAMP") or
such other "signature guarantee program" as may be determined by the Registrar
in addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.
OPTION OF HOLDER TO ELECT PURCHASE
If you the Holder want to elect to have this Security purchased by the Company,
check the box: [_]
If you want to elect to have only part of this Security purchased by the
Company, state the aggregate principal amount at maturity: $
Dated: ___________ Your signature: ____________________________________
(Sign exactly as
name appears on the
other side of this
Security)
Signature Guarantee: _________________________________________________________
SIGNATURE GUARANTEE
Signatures must be guaranteed by an "eligible guarantor institution" meeting the
requirements of the Registrar, which requirements include membership or
participation in the Security Transfer Agent Medallion Program ("STAMP") or such
other "signature guarantee program" as may be determined by the Registrar in
addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.
EXHIBIT B
FORM OF CERTIFICATE OF TRANSFER
TRITON PCS, INC.
000 Xxxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxxxxxx 00000
Attention: Chief Executive Officer
[Name and Address of Registrar]
Re: 11% Senior Subordinated Discount Notes due 2008
Reference is hereby made to the Indenture, dated as of May 4, 1998
the "Indenture"), between Triton PCS, Inc. (the "Company") and PNC Bank,
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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
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Security[s] specified in Annex A hereto in the principal amount at maturity of
$___ in such Security[s] (the "Transfer"), to ________ (the "Transferee"), as
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further specified in Annex A hereto. In the event that Transferor holds
Physical Securities, this Certificate is accompanied by one or more certificates
aggregating at least the principal amount at maturity of Securities proposed to
be Transferred. In connection with the Transfer, the Transferor hereby
certifies that:
1. [_] Check if Transferee will take an Interest in the 144A Global Security.
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The Transfer is being effected pursuant to and in accordance with Rule 144A
under the United States Securities Act of 1933, as amended (the "Securities
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Act"), and, accordingly, the Transferor hereby further certifies that the
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Securities are being transferred to a Person that the Transferor reasonably
believes is purchasing the Securities for its own account, or for one or more
accounts with respect to which such Person exercises sole investment discretion,
and such Person and each such account is a "qualified institutional buyer"
within the meaning of Rule 144A in a transaction meeting the requirements of
Rule 144A and such Transfer is in compliance with any applicable blue sky
securities laws of any state of the United States. Upon consummation of the
proposed Transfer in accordance with the terms of the Indenture, the transferred
Security will be subject to the restrictions on transfer enumerated in the
Securities Act Legend and in the Indenture and the Securities Act.
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2. [_] Check if Transferee will take an Interest in the Regulation S Global
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Security pursuant to Regulation S. The Transfer is being effected pursuant to
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and in accordance with Rule 904 under the Securities Act and, accordingly, the
Transferor hereby further certifies that (i) the Transfer is not being made to a
person in the United States and (x) at the time the buy order was originated,
the Transferee was outside the United States or such Transferor and any Person
acting on its behalf reasonably believed and believes that the Transferee was
outside the United States or (y) the transaction was executed in, on or through
the facilities of a designated offshore securities market and neither such
Transferor nor any Person acting on its behalf knows that the transaction was
prearranged with a buyer in the United States, (ii) no directed selling efforts
have been made in contravention of the requirements of Rule 904(b) of Regulation
S under the Securities Act and (iii) the transaction is not part of a plan or
scheme to evade the registration requirements of the Securities Act. Upon
consummation of the proposed transfer in accordance with the terms of the
Indenture, the Security will be subject to the restrictions on Transfer
enumerated in the Securities Act Legend printed on the Regulation S Global
Security and in the Indenture and the Securities Act.
3. [_] Check and complete if Transferee will take delivery of a Restricted
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Physical Security pursuant to Rule 144A or Regulation S. One or more of the
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events specified in Section 2.06(a) of the Indenture have occurred and the
Transfer is being effected in compliance with the transfer restrictions
applicable to Securities bearing the Securities Act Legend and pursuant to and
in accordance with the Securities Act, and accordingly the Transferor hereby
further certifies that (check one):
(a) [_] such Transfer is being effected pursuant to and in
accordance with Rule 144A under the Securities Act and the Transferor certifies
to the effect set forth in paragraph 1 above; or
(b) [_] such Transfer is being effected pursuant to and in
accordance with Rule 904 under the Securities Act and the Transferor certifies
to the effect set forth in paragraph 2 above.
4. [_] Check if Transferee will take an Interest in the Unrestricted Global
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Security. The Transfer is being effected pursuant to and in accordance with Rule
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144 under the Securities Act and in compliance with the transfer restrictions
con-
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tained in the Indenture, and the restrictions on transfer contained in the
Indenture and the Securities Act Legend are not required in order to maintain
compliance with the Securities Act. Upon consummation of the proposed Transfer
in accordance with the terms of the Indenture, the transferred Securities will
no longer be subject to the restrictions on transfer enumerated in the
Securities Act Legend and in the Indenture and the Securities Act.
5. [_] Check if Transferee will take an Interest in the Physical Global
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Security that does not bear the Securities Act Legend One or more of the events
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specified in Section 2.06(a) of the Indenture have occurred and the Transfer is
being effected pursuant to and in accordance with Rule 144 under the Securities
Act and in compliance with the transfer restrictions contained in the Indenture,
and the restrictions on transfer contained in the Indenture and the Securities
Act Legend are not required in order to maintain compliance with the Securities
Act. Upon consummation of the proposed Transfer in accordance with the terms of
the Indenture, the transferred Securities will no longer be subject to the
restrictions on transfer enumerated in the Securities Act Legend and in the
Indenture and the Securities Act.
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This certificate and the statements contained herein are made for your
benefit and the benefit of the Issuers.
___________________________
[Insert Name of Transferor]
By: ___________________________
Name:
Title:
Dated: _________________
FORM OF ANNEX A TO CERTIFICATE
OF TRANSFER
1. The Transferor owns and proposes to transfer the following:
[CHECK ONE OF (a) OR (b)]
(a) [_] Interests in the
(i) [_] 144A Global Security (CUSIP _____), or
(ii) [_] Regulation S Global Security (CINS _____).
(b) [_] Physical Security.
2. That the Transferee will hold:
[CHECK ONE]
(a) [_] Interests in the:
(i) [_] 144A Global Security (CUSIP _____), or
(ii) [_] Regulation S Global Security (CINS _____), or
(iii) [_] Unrestricted Global Security (CUSIP _____); or
(b) [_] Physical Securities that bear the Securities Act Legend;
(c) [_] Physical Securities that do not bear the Securities Act
Legend;
in accordance with the terms of the Indenture.
EXHIBIT C
FORM OF CERTIFICATE OF EXCHANGE
TRITON PCS, INC.
000 Xxxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxxxxxx 00000
Attention:
[Name and Address of Registrar]
Re: 11% Senior Subordinated Discount Notes due 2008
(CUSIP _______________)
Reference is hereby made to the Indenture, dated as of May 4, 1998
(the "Indenture"), between Triton PCS, Inc. (the "Company") and PNC Bank,
---------
National Association, as trustee. Capitalized terms used but not defined
herein shall have the meanings given to them in the Indenture.
__________, (the "Holder") owns and proposes to exchange the
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Security[s] specified herein, in the principal amount at maturity of $___ in
such Security[s] (the "Exchange"). In the event Holder holds Physical
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Securities, this Certificate is accompanied by one or more certificates
aggregating at least the principal amount at maturity of Securities proposed to
be Exchanged. In connection with the Exchange, the Holder hereby certifies that:
1. Exchange of Restricted Physical Securities or Interests in the Initial
Global Security for Physical Securities that do not bear the Securities Act
Legend or Unrestricted Global Securities
(a) [_] Check if Exchange is from Initial Global Securities to the
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Unrestricted Global Security. In connection with the Exchange of the Holder's
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Initial Global Security to the Unrestricted Global Security in an equal
principal amount at maturity, the Holder hereby certifies (i) the Unrestricted
Global Securities are being acquired for the Holder's own account without
transfer, (ii) such Exchange has been effected in compliance with the transfer
restrictions applicable to the Initial Global Securities and pursuant to and in
accordance with the Securities Act of 1933, as amended (the "Securities Act")
and (iii) the restrictions on transfer contained in the
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Indenture and the Securities Act Legend are not required in order to maintain
compliance with the Securities Act.
(b) [_] Check if Exchange is from Restricted Physical Securities to an
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Interest in the Unrestricted Global Security. In connection with the Holder's
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Exchange of Restricted Physical Securities for Interest in the Unrestricted
Global Security, (i) the Interest in the Unrestricted Global Security are being
acquired for the Holder's own account without transfer, (ii) such Exchange has
been effected in compliance with the transfer restrictions applicable to
Restricted Physical Securities and pursuant to and in accordance with the
Securities Act and (iii) the restrictions on transfer contained in the Indenture
and the Securities Act Legend are not required in order to maintain compliance
with the Securities Act.
(c) [_] Check if Exchange is from Restricted Physical Securities to
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Physical Securities that do not bear the Securities Act Legend. In connection
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with the Holder's Exchange of a Restricted Physical Security for Physical
Securities that do not bear the Securities Act Legend, the Holder hereby
certifies (i) the Physical Securities that do not bear the Securities Act Legend
are being acquired for the Holder's own account without transfer, (ii) such
Exchange has been effected in compliance with the transfer restrictions
applicable to Restricted Physical Securities and pursuant to and in accordance
with the Securities Act, (iii) the restrictions on transfer contained in the
Indenture and the Securities Act Legend are not required in order to maintain
compliance with the Securities Act and (iv) one or more of the events specified
in Section 2.06(a) of the Indenture have occurred.
2. [_] Check if Exchange is from Restricted Physical Securities to Interests
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in an Initial Global Security. In connection with the Exchange of the Holder's
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Restricted Physical Security for interests in an Initial Global Security [[CHECK
ONE] 144A Global Security, Regulation S Global Security], with an equal
principal amount, (i) the interests in the Initial Global Security are being
acquired for the Holder's own account without transfer and (ii) such Exchange
has been effected in compliance with the transfer restrictions applicable to the
Restricted Physical Security and pursuant to and in accordance with the
Securities Act. Upon consummation of the proposed Exchange in accordance with
the terms of the Indenture, the Initial Global Security issued will be subject
to the restrictions on transfer enumerated in the Securities Act Legend printed
on the Initial Global Securities and in the Indenture and the Securities Act.
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This certificate and the statements contained herein are made for your
benefit and the benefit of the Issuers.
________________________________________
[Insert Name of Holder]
By: ____________________________________
Name:
Title:
Dated: __________________
