EXHIBIT 4.13
EXECUTION COUNTERPART
SUPPLEMENTAL INDENTURE dated as of October 2, 1995, between Heartland
Wireless Communications, Inc., a Delaware corporation (the "Company"), and First
Trust of New York, National Association, as trustee (the "Trustee") under the
Indenture dated as of April 26, 1995 (as amended, supplemented or modified from
time to time, the "Indenture").
Pursuant to the Indenture, the Company has issued its 13% Senior Notes
due 2003 (the "Notes"). Section 10.02 of the Indenture provides, inter alia,
that the Company and the Trustee may amend or supplement the Indenture with the
written consent of the Holders of Notes of not less than a majority in aggregate
principal amount of the Notes then outstanding (the "Required Consent"). The
Company has solicited consents to the substance of this Supplemental Indenture
upon the terms and subject to the conditions set forth in its Consent
Solicitation dated September 12, 1995, and the related Consent Solicitation
Statement, as amended by the Supplement to Consent Solicitation Statement dated
September 22, 1995 (hereinafter referred to collectively as the "Consent
Solicitation"). The Company has obtained the Required Consent to the substance
of this Supplemental Indenture.
In order to effect the amendments contemplated by the Consent
Solicitation in accordance with Section 10.02 of the Indenture, the Company and
the Trustee agree as follows for the benefit of each other and for the equal and
ratable benefit of the Holders of the Notes:
ARTICLE 1
AMENDMENTS TO THE INDENTURE
Section 1.1. Amendments to Section 1.01. (a) Section 1.01 of the
Indenture is hereby amended by adding thereto the following definitions, to be
inserted therein in alphabetical order:
"AWS Transaction" means the acquisition by the Company of the
capital stock of American Wireless Cable Systems, Inc., a Delaware
corporation, and the acquisition by the Company of the assets of
Wireless Cable TV Associates #38 and of Fort Worth Wireless Cable TV
Associates for consideration comprised of Equity Interests of the
Company.
"CableMaxx Transaction" means the acquisition by the Company of
the capital stock of CableMaxx, Inc., a Delaware corporation
("CableMaxx"), for consideration comprised of Equity Interests of the
Company or the acquisition by the Company of the assets of CableMaxx
related to the Amarillo, Athens, Lubbock and ▇▇▇▇▇▇▇/Denison, Texas
markets for either $2.4 million or the fair market value of such assets
in cash.
"Call Markets" means Fanning Springs, Florida; Leesburg,
Florida; and Lake City, Florida.
"Contributed Markets" means Bedias/Huntsville, Texas; Freeport,
Texas; Milano, Texas; Baton Rouge, Louisiana; Ferriday, Louisiana; ▇▇▇▇▇
Ridge, Louisiana; Jena, Louisiana; Leesville, Louisiana; Monroe,
Louisiana; Natchitoches, Louisiana; Ruston, Louisiana; Alberta/Salem,
Alabama; Ariton, Alabama; ▇▇▇▇▇▇▇▇, Alabama; Bucks, Alabama; Six Mile,
Alabama; Society Hill, Alabama; Tharpton, Alabama; Village Springs,
Alabama; Charing, Georgia; Groveland, Georgia; Hoggards Mill, Georgia;
Jeffersonville,
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Georgia; ▇▇▇▇▇▇▇, Georgia; Tarboro, Georgia; Valdosta, Georgia; Ocala,
Florida; and Tallahassee, Florida.
"TechniVision Transaction" means the acquisition by the Company
of the assets of TechniVision, Inc. for consideration comprised of
Equity Interests of the Company.
"Transactions" means the AWS Transaction, the CableMaxx
Transaction, the TechniVision Transaction and the Wireless One
Transaction, collectively.
"Wireless One Transaction" means either (i) the transaction
contemplated by the Letter of Intent dated July 17, 1995, between the
Company and Wireless One Operating Company, a Delaware corporation ("Old
Wireless One"), whereby, among other things, Wireless One, Inc., a
newly-formed Delaware corporation ("Wireless One"), will acquire (A) all
of the outstanding capital stock of Old Wireless One (which will retain
all of its assets and liabilities except its wireless cable assets and
certain related liabilities with respect to the Springfield, Missouri
market which the Company will acquire) for consideration comprised of
the Common Stock, $.01 par value per share (the "Wireless One Common
Stock"), of Wireless One and (B) the wireless cable assets and related
liabilities of certain Subsidiaries of the Company with respect to the
Contributed Markets for consideration comprised of Wireless One Common
Stock and promissory notes of Wireless One, or (ii) the transaction
contemplated by the Letter Agreement dated September 11, 1995 between
the Company and Old Wireless One, whereby, among other things, a newly-
formed limited liability company ("Wireless One LLC") will acquire (x)
all of the assets of Old Wireless One for consideration comprised of
interests in Wireless One LLC and (y) all of the wireless cable assets
and related liabilities of certain Subsidiaries of the Company with
respect to the Contributed Markets for consideration comprised of
interests in Wireless One LLC and promissory notes of Wireless One LLC.
(b) Section 1.01 of the Indenture is hereby further amended by deleting
therefrom the definition of "Investments" in its entirety and substituting
therefor the following:
"Investments" means, with respect to any Person, (i) all
investments by such Person in other Persons (including Affiliates) in
the forms of loans, Guarantees, advances or capital contributions
(excluding commission, travel and similar advances to officers and
employees made in the ordinary course of business), purchases or other
acquisitions for consideration of Indebtedness, Equity Interests or
other securities of any other Person and all other items that are or
would be classified as investments on a balance sheet prepared in
accordance with GAAP and (ii) all acquisitions by such Person of assets
to be used in the Wireless Cable Business (other than any such
acquisitions of equipment made in the ordinary course of such Person's
business and other than any acquisition or lease (and any deposit
required to be made in connection therewith) of additional channel
rights on or after the Issue Date in any wireless cable market listed in
the offering memorandum relating to the issuance of the Units or any
wireless cable market or "Basic Trading Area" (as defined by Rand
▇▇▇▇▇▇▇) in which the Company and its Subsidiaries (A) as of the date of
the Indenture, have channel rights, whether by way of license, lease
with a channel license holder, lease with a channel license applicant,
lease with a qualified,
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non-profit educational organization that plans to apply for a channel
license or option to acquire any of the foregoing, or (B) as of the date
of such acquisition or lease, have rights with respect to at least eight
wireless cable channels, whether by way of license, lease with a channel
license holder, lease with a channel license applicant, lease with a
qualified, non-profit educational organization that plans to apply for a
channel license or option to acquire any of the foregoing; provided,
however, that until the date on which the ratio of Annualized EBITDA to
Consolidated Interest Expense equals or exceeds 1.75 to 1.00, the
aggregate amount of such acquisitions and leases (and deposits) shall
not exceed $12.5 million).
Section 1.2. Amendment to Section 4.07. Section 4.07 of the Indenture is
hereby amended by deleting the text thereof in its entirety and substituting
therefor the following:
Section 4.07. Limitation on Restricted Payments.
The Company and its Subsidiaries may not, directly or indirectly
(i) declare or pay any dividend or make any distnbution on account of
any Equity Interests of the Company or any of its Subsidiaries other
than dividends or distributions payable (A) in Equity Interests of the
Company that are not Disqualified Stock or (B) to the Company or any
Wholly-Owned Subsidiary of the Company; (ii) purchase, redeem or
otherwise acquire or retire for value any Equity Interests of the
Company or any of its Subsidiaries (other than any such Equity Interests
owned by the Company or a Wholly-Owned Subsidiary); (iii) purchase,
redeem, defease or otherwise acquire or retire for value any
Indebtedness that is pari passu or subordinated in right of payment to
the Notes, except in accordance with the scheduled repayment provisions
set forth in the original documentation governing such Indebtedness; or
(iv) in a single transaction or a series of related transactions, until
the date on which the ratio of Annualized EBITDA to Consolidated
Interest Expense equals or exceeds 1.75 to 1.00, make Investments in a
cumulative amount for the Company and all of its Subsidiaries, in excess
of (A) the sum of (l) $10 million and (2) 100% of the Net Proceeds
received by the Company from the issue or sale of Equity Interests of
the Company (other than Equity Interests sold to a Subsidiary of the
Company or to an employee stock ownership plan or similar trust and
other than Disqualified Stock) less (B) the cumulative amount of Net
Proceeds received by the Company from the issue or sale of Equity
Interests of the Company that has been applied to make Restricted
Payments (all such payments and other actions set forth in clauses (i)
through (iv) above being collectively referred to as "Restricted
Payments"), unless, at the time of such Restricted Payment: (a) no
Default or Event of Default shall have occurred and be continuing or
would occur as a consequence thereof; (b) after giving effect to such
Restricted Payment on a pro forma basis as if such Restricted Payment
had been made at the beginning of the applicable fiscal quarter, the
Company could incur $1.00 of additional Indebtedness pursuant to the
Annualized Cash Flow Ratio test in Section 4.08; and (c) such Restricted
Payment, together with the aggregate of all other Restricted Payments
made by the Company and its Subsidiaries after the Issue Date, is less
than the sum of: (x) 50% of the Consolidated Net Income (or if
Consolidated Net Income shall be a loss, minus 100% of such loss) of the
Company earned from the first day of the
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fiscal quarter during which the Issue Date occurs to the end of the most
recent fiscal quarter ending prior to the date of such Restricted
Payment, plus (y) 100% of the aggregate Net Cash Proceeds received by
the Company from the issue or sale of Equity Interests of the Company
(other than Equity Interests sold to a Subsidiary of the Company or to
an employee stock ownership plan or similar trust and other than
Disqualified Stock or the Net Proceeds from the sale of Equity Interests
applied to make Investments in accordance with this covenant) since the
Issue Date.
Notwithstanding the foregoing, the provisions set forth in the
immediately preceding paragraph do not prohibit (i) the payment of any
dividend within 60 days after the date of declaration thereof, if at
such date of declaration such payment would have complied with the
provisions of this Indenture; (ii) so long as no Default or Event of
Default shall have occurred and be continuing, the redemption,
repurchase, retirement or other acquisition of any Equity Interests of
the Company in exchange for, or out of the net proceeds of, the
substantially concurrent sale for cash or Marketable Securities (other
than to a Subsidiary of the Company) of other Equity Interests of the
Company that are not Disqualified Stock; (iii) so long as no Default or
Event of Default shall have occurred and be continuing, the purchase of
Capital Stock of the Company (including options, warrants or other
rights to acquire such Capital Stock) from employees or former employees
of the Company or any Subsidiary thereof pursuant to any employment
agreement, management equity subscription agreement or stock option plan
or similar agreement in effect as of the Issue Date or entered into in
the ordinary course of business for consideration which, when added to
all loans made pursuant to clause (iv) below during the fiscal year and
then outstanding, does not exceed $0.5 million in the aggregate in any
fiscal year or $2.5 million in the aggregate over the life of the Notes;
(iv) so long as no Default or Event of Default shall have occurred and
be continuing, the making of loans and advances to employees of the
Company or any Subsidiary thereof in the ordinary course of business
which, when added to the aggregate consideration paid pursuant to clause
(iii) above during the same fiscal year, does not exceed $0.5 million in
any fiscal year or $2.5 million in the aggregate over the life of the
Notes; provided that upon repayment of such loans or advances made after
the Issue Date, such repaid amount shall no longer be included in the
principal amount of loans and advances made to employees; (v) so long as
no Default or Event of Default shall have occurred and be continuing, a
Permitted Refinancing; (vi) so long as no Default or Event of Default
shall have occurred and be continuing, the redemption, repurchase,
retirement or other acquisition of Equity Interests of a Subsidiary of
the Company for (A) Equity Interests of the Company that are not
Disqualified Stock or (B) up to $1.0 million in the aggregate over the
life of the Notes of cash consideration; (vii) the payment of funds to
satisfy or discharge any liability or obligation incurred by the Company
as a result of its joint and several liability as a general partner for
all third-party liabilities and obligations of RuralVision Joint
Venture, if any; (viii) the acquisition by the Company of the Cross
Country Sale Assets; (ix) the acquisition by the Company of the Tulsa,
Oklahoma wireless cable market from USWS; (x) the acquisition by the
Company of the Amarillo, Texas market from U.S. Wireless; (xi) the
payment of dividends on Preferred Stock of Subsidiaries outstanding on
the Issue Date; (xii) the redemption, repurchase, retirement
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or other acquisition of Capital Stock of the Company from U.S. Wireless
for consideration comprised of the note receivable related to the U.S.
Wireless Loan; (xiii) Investments in Wireless Cable Related Assets made
with the Net Cash Proceeds from an Asset Sale made in compliance with
the first paragraph of Section 4.12 (whether such Asset Sale shall have
been consummated prior to or after the Issue Date) or otherwise
permitted by Section 4.12, provided that if such Investment had been
acquired in a simultaneous swap or exchange for the assets disposed of
in such Asset Sale, such swap or exchange would have complied with the
provisions of the third paragraph under Section 4.12; (xiv) Investments
that constitute part of an Asset Sale transaction consummated in
compliance with or otherwise permitted by the provisions of the third
paragraph under Section 4.12; (xv) Investments in the Wireless Cable
Business acquired in consideration for the issuance of Equity Interests
of the Company (other than Disqualified Stock) and cash paid in lieu of
the issuance of fractional shares and in satisfaction of any applicable
dissenter's or appraisal rights; and (xvi) the consummation of any of
the Transactions. The amounts referred to in clauses (i), (ii), (iii),
(iv) and (vi) shall be included as Restricted Payments in any
computation made pursuant to clause (c) above. Restricted Payments shall
be deemed not to include Permitted Payments and Permitted Investments.
Not later than the making of any Restricted Payment, the
Company shall deliver to the Trustee an Officers' Certificate stating
that such Restricted Payment is permitted and setting forth the basis
upon which the calculations required by Section 4.07 were computed.
Section 1.3. Amendment of Section 4.08. Section 4.08 of the Indenture is
hereby amended by deleting the text thereof in its entirety and substituting
therefor the following:
Section 4.08. Limitation on Indebtedness
The Company will not, and will not permit any of its
Subsidiaries to, directly or indirectly, create, incur, assume,
Guarantee, acquire, become liable, contingently or otherwise, with
respect to, or otherwise become responsible for payment of
(collectively, "incur") any Indebtedness; provided that the Company (but
not its Subsidiaries) may incur Indebtedness if (i) no Default or Event
of Default shall have occurred and be continuing and (ii) the Annualized
Cash Flow Ratio of the Company as of the date of such incurrence or
issuance shall not exceed (x) 7.0 to 1.0 if such incurrence or issuance
occurs on or prior to the second anniversary of the Issue Date and (y)
5.0 to 1.0 if such incurrence or issuance occurs thereafter.
The foregoing limitation will not apply to: (i) Indebtedness
evidenced by the Notes and this Indenture; (ii) the incurrence by the
Company and its Subsidiaries of the Existing Indebtedness, other than
any Existing Indebtedness required to be repaid with proceeds of the
sale of the Units; (iii) the incurrence by the Company and its
Subsidiaries of Bank Indebtedness in an aggregate principal amount at
any one time outstanding not to exceed $25.0 million (less the amount of
any then-outstanding Preferred Stock of Subsidiaries issued to refinance
Indebtedness to the extent such amount has not been
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applied to reduce the amount of Indebtedness permitted under clause
(vii) below), as such amount may be permanently reduced as specified in
Section 4.12, and reduced by the amount of any outstanding Guarantee
incurred pursuant to clause (iv) below; provided that no Default or
Event of Default shall have occurred and be continuing at the time of
such incurrence; (iv) the Guarantee by the Subsidiaries of Bank
Indebtedness permitted to be incurred by the Company pursuant to the
immediately preceding paragraph; (v) Indebtedness of the Company issued
to any Wholly-Owned Subsidiary; provided that (a) any such Indebtedness
is unsecured and is subordinated to the Notes and (b) that any
subsequent issuance or transfer of any Capital Stock which results in
any Wholly-Owned Subsidiary ceasing to be a Wholly-Owned Subsidiary or
any transfer of such Indebtedness to a Person not a Wholly-Owned
Subsidiary will be deemed an incurrence of such Indebtedness; (vi)
Indebtedness of a Subsidiary issued to and held by the Company or any
Wholly-Owned Subsidiary of the Company; provided that any subsequent
issuance or transfer of any Capital Stock which results in a Wholly-
Owned Subsidiary ceasing to be a Wholly-Owned Subsidiary or any transfer
of such Indebtedness to a Person not a Wholly-Owned Subsidiary of the
Company will be deemed an incurrence of such Indebtedness; (vii) the
incurrence by the Company or its Subsidiaries of additional Indebtedness
in an aggregate principal amount not to exceed $15.0 million at any one
time outstanding (less the amount of any then-outstanding Preferred
Stock of Subsidiaries issued to refinance Indebtedness to the extent
such amount has not been applied to reduce the amount of Indebtedness
permitted under clause (iii) above); (viii) the incurrence (a "Permitted
Refinancing") by the Company and its Subsidiaries of Indebtedness
issued in exchange for, or the proceeds of which are used to extend,
refinance, renew, replace or refund Indebtedness incurred pursuant to
the Annualized Cash Flow Ratio test above or pursuant to clauses (ii),
(iii), (iv) and (v) above ("Refinancing Indebtedness"), provided that
(a) the net proceeds of such Refinancing Indebtedness shall not exceed
the principal amount of and required premium, if any, and accrued
interest on the Indebtedness so extended, refinanced, renewed, replaced,
substituted or refunded (or if such Indebtedness was issued at an
original issue discount, the original issue price plus amortization of
the original issue discount at the time of the repayment of such
Indebtedness) and reasonable expenses incurred in connection therewith;
(b) the Refinancing Indebtedness shall have a final maturity later than,
and a Weighted Average Life to Maturity equal to or greater than, the
final maturity and remaining Weighted Average Life to Maturity of the
Indebtedness being extended, refinanced, renewed, replaced or refunded;
and (c) if the Indebtedness being extended, refinanced, renewed,
replaced or refunded is subordinated in right of payment to the Notes,
the Refinancing Indebtedness shall be subordinated in right of payment
to the Notes on terms at least as favorable to the Holders of Notes as
those contained in the documentation goveming the Indebtedness being so
extended, refinanced, renewed, replaced or refunded; (ix) the incurrence
of obligations in respect of Interest Rate Agreements relating to
Indebtedness to the extent that the notional principal amount of such
obligation does not exceed the aggregate principal amount of the
Indebtedness to which such Interest Rate Agreement relates; or (x) the
incurrence by the Company or any of its Subsidiaries of Indebtedness
owing to a Federal governmental authority relating to the purchase of
wireless cable channels in an auction or other sale (or Indebtedness
satisfying the requirements of (viii)(b) above issued in exchange for,
or
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the proceeds of which are used to extend, refinance, renew, replace or
refund, such Indebtedness) in an amount not to exceed in the aggregate
$30 million at any one time outstanding. The Company and its
Subsidiaries may incur Acquired Debt only in compliance with this
covenant.
Section 1.4. Amendment of Section 4.10. Section 4.10 of the Indenture is
hereby amended by deleting the text thereof in its entirety and substituting
therefor the following:
Section 4.10. Limitation on Issuance and Sale of Capital
Stock of Subsidiaries.
The Company will not sell any Capital Stock of a Subsidiary, and
will not permit any Subsidiary to issue or sell any Capital Stock, or
permit any Person, other than the Company and its Subsidiaries, to own
or hold any such interest, other than (i) any interest owned or held on
the Issue Date by, or issuable as of the Issue Date to, a Person other
than the Company and its Subsidiaries in any Capital Stock of any
Subsidiary or (ii) any interest owned or held by a Person at the time
that such Subsidiary became a Subsidiary (other than any such interest
created or issued in anticipation of the acquisition of such Subsidiary
by the Company); provided that the foregoing limitation shall not apply
to (i) the sale of 100% of the Capital Stock of any Subsidiary made in
accordance with Section 4.12 and (ii) issuances of Preferred Stock
permitted pursuant to clauses (i) or (iii) of Section 4.11.
Section 1.5. Amendment of Section 4.12. Section 4.12 of the Indenture is
hereby amended by deleting the text thereof in its entirety and substituting
therefor the following:
Section 4.12. Limitation on Asset Sales.
(a) The Company will not, and will not permit any of its
Subsidiaries to, consummate an Asset Sale unless (i) the Company or the
applicable Subsidiary, as the case may be, receives consideration at the
time of such Asset Sale at least equal to the Fair Market Value of the
assets sold or otherwise disposed of (as determined in good faith by the
Company's Board of Directors or if the Fair Market Value of such assets
exceeds $20.0 million, the Company shall receive from an investment
banking firm of national standing a written opinion in customary form as
to the fairness, to the Company, of such Asset Sale) and (ii) at least
80% of the consideration received by the Company or the Subsidiary, as
the case may be, from such Asset Sale shall be cash or Marketable
Securities and is received at the time of such disposition. Upon the
consummation of an Asset Sale, the Company may apply, or cause such
Subsidiary to apply, the Net Cash Proceeds relating to such Asset Sale
within 180 days of receipt thereof either (A) to prepay any Bank
lndebtedness and, in the case of any Bank Indebtedness under any
revolving credit facility, to effect a permanent reduction in the
availability under such revolving credit facility, (B) to reinvest in
Wireless Cable Related Assets or (C) to a combination of prepayment and
investment permitted by the foregoing clauses (A) and (B). On the 181st
day after an Asset Sale or such earlier date, if any, as the Board of
Directors of the Company or of such Subsidiary determines not to apply
the Net Cash Proceeds relating to such Asset Sale as set forth in
clauses (A), (B) or (C) of the
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preceding sentence (each, a "Net Proceeds Offer Trigger Date"), such
aggregate amount of Net Cash Proceeds which have not been applied on or
before such Net Proceeds Offer Trigger Date as permitted in clauses (A),
(B) or (C) of the preceding sentence (each, a "Net Proceeds Offer
Amount") shall be applied by the Company to make an offer to purchase
(the "Net Proceeds Offer") on a date (the "Net Proceeds Offer Payment
Date") not less than 30 nor more than 45 days following the applicable
Net Proceeds Offer Trigger Date, from all Holders on a pro rata basis
that amount of Notes equal to the Net Proceeds Offer Amount at a price
equal to 100% of the principal amount of the Notes to be purchased, plus
accrued and unpaid interest thereon, if any, to the date of purchase;
provided, however, that if at any time any non-cash consideration
received by the Company or any Subsidiary of the Company, as the case
may be, in connection with any Asset Sale is converted into or sold or
otherwise disposed of for cash (other than interest received with
respect to any such non-cash consideration), then such conversion or
disposition shall be deemed to constitute an Asset Sale hereunder and
the Net Cash Proceeds thereof shall be applied in accordance with this
covenant.
(b) Notwithstanding the foregoing, if a Net Proceeds Offer
Amount is less than $5.0 million, the application of the Net Cash
Proceeds constituting such Net Proceeds Offer Amount to a Net Proceeds
Offer may be deferred until such time as such Net Proceeds Offer Amount
plus the aggregate amount of all Net Proceeds Offer Amounts arising
subsequent to the Net Proceeds Offer Trigger Date relating to such
initial Net Proceeds Offer Amount from all Asset Sales by the Company
and its Subsidiaries aggregates at least $5.0 million, at which time the
Company shall apply all Net Cash Proceeds constituting all Net Proceeds
Offer Amounts that have been so deferred to make a Net Proceeds Offer
(the first date the aggregate of all such deferred Net Proceeds Offer
Amounts is equal to $5.0 million or more shall be deemed to be a Net
Proceeds Offer Trigger Date).
(c) Notwithstanding the two immediately preceding paragraphs (a)
and (b), the Company and its Subsidiaries will be permitted to
consummate an Asset Sale without complying with such paragraphs to the
extent (i) at least 95% of the consideration for such Asset Sale, other
than cash consideration, constitutes assets used in the business of the
Company and its Subsidiaries on the date of such transaction, (ii) such
Asset Sale is for Fair Market Value (as determined in good faith by the
Company's Board of Directors or if the Fair Market Value of such assets
exceeds $20.0 million, the Company shall receive from an investment
banking firm of national standing a written opinion in customary form as
to the fairness, to the Company, of such Asset Sale) and (iii) the
assets acquired in such an Asset Sale have historically generated
revenues in an amount at least equal to (1) the revenues attributable to
the assets disposed of in such Asset Sale, multiplied by (2) a fraction,
the numerator of which is the amount of consideration other than cash
consideration received in such Asset Sale, and the denominator of which
is the total amount of consideration received in such Asset Sale;
provided that any consideration received by the Company or its
Subsidiaries, as the case may be, in an Asset Sale permitted to be
consummated under this paragraph that does not assets to be
used in the operations of the Company or its Subsidiaries shall
constitute Net Cash
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Proceeds which are subject to the provisions of the two preceding
paragraphs. In addition, notwithstanding the two immediately preceding
paragraphs, the Company will be permitted (i) to consummate the Wireless
One Transaction without complying with such paragraphs, (ii) to sell the
Call Markets to Wireless One or Wireless One LLC without complying with
such paragraphs, (iii) to sell any or all of the RuralVision Sale Assets
on or prior to December 31, 1995 without complying with such paragraphs,
(iv) to sell any or all of the assets acquired in the AWS Transaction,
the CableMaxx Transaction or the TechniVision Transaction on or prior to
the first anniversary of the consummation of each such Transaction
without complying with such paragraphs, (v) to sell any or all of the
assets acquired by way of an Investment permitted by clause (xv) of the
second paragraph of Section 4.07 on or prior to the first anniversary of
the consummation of such acquisition without complying with such
paragraphs and (vi) to sell, in a single transaction or a series of
transactions, assets for up to $25 million of non-cash consideration,
provided, in the case of clauses (iii), (iv), (v) and (vi) that the
Company receives consideration at the time of such Asset Sale at least
equal to the Fair Market Value of the assets sold or otherwise disposed
of (as determined in good faith by the Company's Board of Directors or
if the Fair Market Value of such assets exceeds $20.0 million, the
Company shall receive from an investment banking firm of national
standing a written opinion in customary form as to the fairness, to the
Company, of such Asset Sale).
(d) Each Net Proceeds Offer will be mailed within 25 days
following the Net Proceeds Offer Trigger Date to the record Holders as
shown on the register of Holders, at their last registered addresses as
of a date within 15 days of the mailing of such notice, with a copy to
the Trustee. The notice shall contain all instructions and materials
necessary to enable such Holders to tender Notes pursuant to the Net
Proceeds Offer and shall state the following terms:
(1) that the Net Proceeds Offer is being made pursuant
to Section 4.12 and that all Notes tendered will be accepted for
payment; provided, however, that if the aggregate principal
amount of Notes tendered in a Net Proceeds Offer plus accrued
interest at the expiration of such offer exceeds the aggregate
amount of the Net Proceeds Offer, the Company shall select the
Notes to be purchased on a pro rata basis (with such adjustments
as may be deemed appropriate by the Company so that only Notes
in denominations of $1,000 or multiples thereof shall be
purchased);
(2) the purchase price (including the amount of accrued
interest) and the purchase date (which shall be 20 Business Days
from the date of mailing of notice of such Net Proceeds Offer,
or such longer period as required by law) (the "Proceeds
Purchase Date");
(3) that any Note not tendered will continue to accrue
interest;
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(4) that, unless the Company defaults in making payment
therefor, any Note accepted for payment pursuant to the Net
Proceeds Offer shall cease to accrue interest after the Proceeds
Purchase Date;
(5) that Holders electing to have a Note purchased
pursuant to a Net Proceeds Offer will be required to surrender
the Note, with the form entitled "Option of Holder to Elect
Purchase" on the reverse of the Note completed, to the Paying
Agent at the address specified in the notice prior to the close
of business on the third Business Day prior to the Proceeds
Purchase Date;
(6) that Holders will be entitled to withdraw their
election if the Paying Agent receives, not later than the second
Business Day prior to the Proceeds Purchase Date, a facsimile
transmission or letter, signature guaranteed, setting forth the
name of the Holder, the principal amount of the Notes the Holder
delivered for purchase and a statement that such Holder is
withdrawing his election to have such Note purchased; and
(7) that Holders whose Notes are purchased only in part
will be issued new Notes in a principal amount equal to the
unpurchased portion of the Notes surrendered; provided, however,
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that each Note purchased and each new Note issued shall be in an
original principal amount of $1,000 or integral multiples
thereof.
On or before the Proceeds Purchase Date, the Company shall (i)
accept for payment Notes or portions thereof tendered pursuant to the
Net Proceeds Offer which are to be purchased in accordance with item
(b)(1) above, (ii) deposit with the Paying Agent, in accordance with
Section 2.14, U.S. Legal Tender sufficient to pay the purchase price
plus accrued interest, if any, of all Notes to be purchased, (iii)
deliver to the Trustee Notes so accepted together with an Officers'
Certificate stating the Notes or portions thereof being purchased by the
Company and (iv) deliver to the Paying Agent an Officers' Certificate
specifying the Notes or portions thereof being purchased by the Company
and the payees of the purchase price. The Paying Agent shall promptly
mail to the Holders of Notes so accepted payment in an amount equal to
the purchase price plus accrued interest, if any. For purposes of this
Section 4.12, the Trustee shall act as the Paying Agent.
The Company will comply with the requirements of Rule 14e-1
under the Exchange Act and any other securities laws and regulations
thereunder to the extent such laws and regulations are applicable in
connection with the repurchase of Notes pursuant to a Net Proceeds
Offer. To the extent that the provisions of any securities laws or
regulations conflict with the foregoing provisions of this lndenture,
the Company shall comply with the applicable securities laws and
regulations and shall not be deemed to have breached its obligations
under the foregoing provisions of this Indenture by virtue thereof.
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ARTICLE 2
MISCELLANEOUS
Section 2.1. Incorporation of Supplemental Indenture. Ratification of
Indenture. All of the provisions of this Supplemental Indenture shall be deemed
to be incorporated in, and made a part of, the Indenture; and the Indenture, as
supplemented and amended by this Supplemental Indenture, shall be read, taken
and construed as one and the same instrument. Except as otherwise expressly
modified herein, the Indenture shall remain in full force and effect and is
hereby ratified.
Section 2.2. Headings. The headings of the Articles and Sections of this
Supplemental Indenture have been inserted for convenience of reference only and
are not to be considered a part of this Supplemental Indenture and shall in no
way modify or restrict any of the terms or provisions hereof.
Section 2.3. Counterpart Originals. The parties may sign any number of
copies of this Supplemental Indenture. Each signed copy shall be an original,
but all of them taken together represent the same agreement.
Section 2.4. Conflict with Trust Indenture Act. If any provision of this
Supplemental Indenture limits, qualifies or conflicts with the duties imposed by
TIA SS 318(c), the imposed duties shall control.
Section 2.5. Successors. All agreements of the Company in this
Supplemental Indenture shall bind its successors. All agreements of the Trustee
in this Supplemental Indenture shall bind its successors.
Section 2.6. Benefits of Supplemental Indenture. Nothing in this
Supplemental Indenture, express or implied, shall give to any person, other than
the parties hereto and their successors hereunder and the Holders, any benefit
or any legal or equitable right, remedy or claim under this Supplemental
Indenture.
Section 2. 7. Defined Terms. Unless otherwise defined in this
Supplemental Indenture, all terms used in this Supplemental Indenture which are
defined in the Indenture shall have the meanings ascribed to them in the
Indenture.
Section 2.8. No Representation. The Trustee makes no representation as
to the validity or sufficiency of the Consent Solicitation, the Consents or this
Supplemental Indenture. The
12
recitals contained herein are recitals of the Company, and the Trustee makes no
representation with respect thereto and shall have no responsibility therefor.
Section 2.9. Governing Law. THE INTERNAL LAW OF THE STATE OF NEW YORK
SHALL GOVERN AND BE USED TO CONSTRUE THIS SUPPLEMENTAL INDENTURE WITHOUT REGARD
TO PRINCIPLES OF CONFLICT OF LAWS.
IN WITNESS WHEREOF, the Company and the Trustee have caused this
Supplemental Indenture to be duly executed and attested, all as of the day and
year first above written.
HEARTLAND WIRELESS COMMUNICATIONS,
INC.
[SEAL] By:
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Name:
Attest: Title:
-----------------------------
Name:
Title:
FIST TRUST OF NEW YORK, NATIONAL
ASSOCIATION
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Attest: Title: Assistant Vice President
/s/ ▇. ▇. ▇▇▇▇▇▇▇▇
--------------------------
Name: ▇. ▇. ▇▇▇▇▇▇▇▇
Title: Assistant SECRETARY
