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TELIGENT, INC.
TO
FIRST UNION NATIONAL BANK,
Trustee
--------------------
Indenture
Dated as of November __, 1997
---------------------
$250,000,000
_____% Senior Notes
due 2007
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TELIGENT, INC.
Reconciliation and tie between Trust Indenture Act
of 1939 and Indenture, dated as of November __, 1997
Trust Indenture Indenture
Act Section Section
ss. 310(a)(1) .................................................... 609
(a)(2) .................................................... 609
(a)(4) .................................................... 609
(a)(5) .................................................... 609
(b) .................................................... 610
ss. 311(a) .................................................... 614
(b) .................................................... 614
(b)(2) .................................................... 614
ss. 312(c) .................................................... 701
ss. 313(a) .................................................... 702
(b) .................................................... 702
(c) .................................................... 702
(d) .................................................... 702
ss. 314(a) .................................................... 703
(a)(4) .................................................... 1008(a)
(c)(1) .................................................... 102
(c)(2) .................................................... 102
(c)(3) .................................................... 102
(e) .................................................... 102
ss. 315(b) .................................................... 601
ss. 315(e) .................................................... 515
ss. 316(a)(last
sentence) .................................................... 101 ("Outstanding")
(a)(1)(A) .................................................... 502, 512
(a)(1)(B) .................................................... 513
(b) .................................................... 508
(c) .................................................... 104(d)
ss. 317(a)(1) .................................................... 503
(a)(2) .................................................... 504
(b) .................................................... 1003
ss. 318(a) .................................................... 111
TABLE OF CONTENTS
Page
PARTIES.................................................................... 1
RECITALS OF THE COMPANY.................................................... 1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. Definitions.................................................. 2
Accounts Receivable Subsidiary............................................. 2
Acquired Debt.............................................................. 2
Act........................................................................ 3
Affiliate.................................................................. 3
Asset Sale................................................................. 3
Attributable Debt.......................................................... 4
Average Life............................................................... 4
Board of Directors......................................................... 4
Board Resolution........................................................... 4
Business Day............................................................... 4
Capital Lease Obligation................................................... 4
Capital Stock.............................................................. 5
Change of Control.......................................................... 5
Class A Common Stock....................................................... 5
Class B Common Stock....................................................... 5
Commission................................................................. 6
Common Stock............................................................... 6
Company.................................................................... 6
Company Request or Company Order........................................... 6
Consolidated Interest Expense.............................................. 6
Consolidated Net Income.................................................... 6
Corporate Trust Office..................................................... 7
Corporation................................................................ 7
Credit Agreement........................................................... 7
Currency Hedge Obligations................................................. 7
Debt....................................................................... 8
--------
Note: This table of contents shall not, for any purpose, be deemed to be a part
of this Indenture.
ii
Page
Debt to Annualized EBITDA Ratio........................................... 9
Debt Securities........................................................... 9
Default................................................................... 9
Defaulted Interest........................................................ 9
Disinterested Director.................................................... 9
EBITDA.................................................................... 10
Eligible Cash Equivalents................................................. 10
Equity Offerings.......................................................... 11
Event of Default.......................................................... 11
Exchange Act.............................................................. 11
Fair Market Value......................................................... 11
Federal Communications Commission......................................... 11
Financing Commitment Letter............................................... 11
GAAP...................................................................... 11
Guarantee................................................................. 11
incur..................................................................... 12
Holder.................................................................... 12
Indenture................................................................. 12
Interest Payment Date..................................................... 12
Interest Swap Obligations................................................. 12
International Equity Offering............................................. 12
Invested Capital.......................................................... 12
Invest.................................................................... 13
Issue Date................................................................ 13
Lien...................................................................... 13
Maturity.................................................................. 13
Net Cash Proceeds......................................................... 13
Notes..................................................................... 14
Note Register and Note Registrar.......................................... 14
Officers' Certificate..................................................... 14
Opinion of Counsel........................................................ 15
Outstanding............................................................... 15
Paying Agent.............................................................. 16
Permitted Debt............................................................ 16
Permitted Holder.......................................................... 18
Permitted Investments..................................................... 18
Permitted Liens........................................................... 19
Permitted Temporary Investments........................................... 20
Person.................................................................... 20
Pledge Account............................................................ 20
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Pledge Agreement.......................................................... 20
Pledged Securities........................................................ 20
Predecessor Note.......................................................... 20
Proportionate Interest.................................................... 20
Public Equity Offering.................................................... 21
Qualified Capital Stock................................................... 21
Redeemable Capital Stock.................................................. 21
Redemption Date........................................................... 21
Redemption Price.......................................................... 21
Regular Record Date....................................................... 21
Regulation S.............................................................. 21
Replacement Assets........................................................ 21
Responsible Officer....................................................... 22
Restricted Payment........................................................ 22
Restricted Subsidiary..................................................... 22
Rule 144A................................................................. 23
Sale and Leaseback Transaction............................................ 23
Securities Act............................................................ 23
Senior Discount Notes..................................................... 23
Senior Discount Notes Indenture........................................... 23
Significant Restricted Subsidiary......................................... 23
Special Record Date....................................................... 23
Stated Maturity........................................................... 23
Strategic Equity Investor................................................. 23
Subordinated Debt......................................................... 23
Subordinated Stockholder Debt............................................. 23
Subsidiary................................................................ 24
Subsidiary Guarantee...................................................... 24
Subsidiary Guarantor...................................................... 24
Telecommunications Assets................................................. 24
Telecommunications Assets Debt............................................ 24
Telecommunications Business............................................... 24
Transactions.............................................................. 24
Trust Indenture Act or TIA................................................ 25
Trustee................................................................... 25
U.S. Equity Offering...................................................... 25
U.S. Government Obligations............................................... 25
Unrestricted Subsidiary................................................... 25
Vendor Debt............................................................... 26
Vice President............................................................ 26
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Page
Voting Stock............................................................... 26
SECTION 102. Compliance Certificates and Opinions......................... 26
SECTION 103. Form of Documents Delivered to Trustee....................... 27
SECTION 104. Acts of Holders.............................................. 28
SECTION 105. Notices, etc., to Trustee and Company........................ 29
SECTION 106. Notice to Holders; Waiver.................................... 29
SECTION 107. Effect of Headings and Table of Contents..................... 30
SECTION 108. Successors and Assigns....................................... 30
SECTION 109. Separability Clause.......................................... 30
SECTION 110. Benefits of Indenture........................................ 30
SECTION 111. Governing Law................................................ 30
SECTION 112. Legal Holidays............................................... 31
SECTION 113. No Recourse Against Others................................... 31
SECTION 114. Exhibits and Schedules....................................... 31
SECTION 115. Counterparts................................................. 31
SECTION 116. Duplicate Originals.......................................... 32
SECTION 117. Incorporation by Reference of TIA............................ 32
ARTICLE TWO
NOTES FORMS
SECTION 201. Forms Generally.............................................. 32
SECTION 202. Form of Face of Note......................................... 33
SECTION 203. Form of Reverse of Note...................................... 34
SECTION 204. Form of Trustee's Certificate of Authentication.............. 39
ARTICLE THREE
THE NOTES
SECTION 301. Title and Terms.............................................. 39
SECTION 302. Denominations................................................ 40
SECTION 303. Execution, Authentication, Delivery and Dating............... 40
SECTION 304. Temporary Notes.............................................. 41
SECTION 305. Registration, Registration of Transfer and Exchange.......... 41
SECTION 306. Mutilated, Destroyed, Lost and Stolen Notes.................. 43
SECTION 307. Payment of Interest; Interest Rights Preserved............... 43
SECTION 308. Persons Deemed Owners........................................ 45
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Page
SECTION 309. Cancellation................................................. 45
SECTION 310. Computation of Interest...................................... 45
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture...................... 46
SECTION 402. Application of Trust Money................................... 47
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default............................................ 47
SECTION 502. Acceleration of Maturity; Rescission and Annulment........... 49
SECTION 503. Collection of Debt and Suits for Enforcement by Trustee...... 51
SECTION 504. Trustee May File Proofs of Claim............................. 51
SECTION 505. Trustee May Enforce Claims Without Possession of Notes....... 52
SECTION 506. Application of Money Collected............................... 52
SECTION 507. Limitation on Suits.......................................... 53
SECTION 508. Unconditional Right of Holders to Receive Principal, Premium
and Interest............................................... 54
SECTION 509. Restoration of Rights and Remedies........................... 54
SECTION 510. Rights and Remedies Cumulative............................... 54
SECTION 511. Delay or Omission Not Waiver................................. 54
SECTION 512. Control by Holders........................................... 54
SECTION 513. Waiver of Past Defaults...................................... 55
SECTION 514. Waiver of Stay or Extension Laws............................. 55
ARTICLE SIX
THE TRUSTEE
SECTION 601. Notice of Defaults............................................ 56
SECTION 602. Trustee's Duties Following Event of Default................... 56
SECTION 603. Certain Rights of Trustee..................................... 56
SECTION 604. Trustee Not Responsible for Recitals or Issuance of Notes..... 58
SECTION 605. Extension of Credit to Company................................ 58
SECTION 606. May Hold Notes................................................ 58
SECTION 607. Money Held in Trust........................................... 58
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Page
SECTION 608. Compensation and Reimbursement................................ 58
SECTION 609. Corporate Trustee Required; Eligibility....................... 59
SECTION 610. Resignation and Removal; Appointment of Successor............. 60
SECTION 611. Acceptance of Appointment by Successor........................ 61
SECTION 612. Merger, Conversion, Consolidation or Succession to Business... 61
SECTION 613. Conflicting Interests......................................... 62
SECTION 614. Preferential Collection of Claims Against Issuers............. 62
ARTICLE SEVEN
HOLDERS LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Disclosure of Names and Addresses of Holders.................. 62
SECTION 702. Reports by Trustee............................................ 63
SECTION 703. Reports by Company............................................ 63
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, etc., Only on Certain Terms.......... 64
SECTION 802. Successor Substituted......................................... 65
SECTION 803. Notes to Be Secured in Certain Events......................... 66
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders............ 66
SECTION 902. Supplemental Indentures with Consent of Holders............... 67
SECTION 903. Execution of Supplemental Indentures.......................... 68
SECTION 904. Effect of Supplemental Indentures............................. 68
SECTION 905. Conformity with Trust Indenture Act........................... 69
SECTION 906. Reference in Notes to Supplemental Indentures................. 69
SECTION 907. Notice of Supplemental Indentures............................. 69
SECTION 908. Effect of Consents............................................ 69
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Page
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium, if any, and Interest.......... 69
SECTION 1002. Maintenance of Office or Agency.............................. 70
SECTION 1003. Money for Note Payments to Be Held in Trust.................. 70
SECTION 1004. Corporate Existence.......................................... 72
SECTION 1005. Payment of Taxes and Other Claims............................ 72
SECTION 1006. Maintenance of Properties.................................... 72
SECTION 1007. Insurance.................................................... 73
SECTION 1008. Statement by Officers As to Default.......................... 73
SECTION 1009. Purchase of Notes upon Change in Control..................... 73
SECTION 1010. Limitation on Debt........................................... 75
SECTION 1011. Limitation on Liens.......................................... 75
SECTION 1012. Limitation on Restricted Payments............................ 75
SECTION 1013. Limitation on Dividend and Other Payment Restrictions
Affecting Restricted Subsidiaries.......................... 78
SECTION 1014. Limitation on Issuances of Certain Guarantees by, and Debt
Securities of, Restricted Subsidiaries..................... 79
SECTION 1015. Limitation on Issuances and Sales of Capital Stock in
Restricted Subsidiaries.................................... 80
SECTION 1016. Limitation on Asset Sales.................................... 81
SECTION 1017. Transactions with Affiliates................................. 82
SECTION 1018. Waiver of Certain Covenants.................................. 84
ARTICLE ELEVEN
REDEMPTION OF NOTES
SECTION 1101. Right of Redemption.......................................... 84
SECTION 1102. Applicability of Article..................................... 84
SECTION 1103. Election to Redeem; Notice to Trustee........................ 85
SECTION 1104. Selection by Trustee of Notes to Be Redeemed................. 85
SECTION 1105. Notice of Redemption......................................... 85
SECTION 1106. Deposit of Redemption Price.................................. 86
SECTION 1107. Notes Payable on Redemption Date............................. 86
SECTION 1108. Notes Redeemed in Part....................................... 87
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Page
ARTICLE TWELVE
SECURITY FOR THE NOTES
SECTION 1201. Security..................................................... 84
ARTICLE THIRTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1301. Company's Option to Effect Defeasance or Covenant Defeasance. 87
SECTION 1302. Defeasance and Discharge..................................... 88
SECTION 1303. Covenant Defeasance.......................................... 88
SECTION 1304. Conditions to Defeasance or Covenant Defeasance.............. 89
SECTION 1305. Deposited Money and U.S. Government Obligations to Be Held
in Trust; Other Miscellaneous Provisions................... 91
SECTION 1306. Reinstatement................................................ 91
TESTIMONIUM................................................................. 97
SIGNATURES AND SEALS........................................................ 97
INDENTURE, dated as of November __, 1997 by and
between TELIGENT, INC., a corporation duly organized and existing under the laws
of the State of Delaware (herein called the "Company"), having its principal
office at 0000 Xxxxxxxx Xxxx, Xxxxxx, XX 00000 and FIRST UNION NATIONAL BANK, a
____________________ duly organized and existing under the laws of
_______________, Trustee (herein called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the creation of an issue of
____% Senior Notes due 2007 (herein called the "Notes"), of substantially the
tenor and amount hereinafter set forth, and to provide therefor the Company has
duly authorized the execution and delivery of this Indenture. The Notes will be
partially secured pursuant to the terms of a Pledge Agreement (as defined
herein) by the Pledged Securities as provided by Article Twelve of this
Indenture. Immediately prior to the consummation of the offering of the Notes,
Teligent, L.L.C. will merge with and into the Company (the "Reorganization"),
with the Company surviving the merger.
This Indenture is subject to the provisions of the Trust
Indenture Act of 1939, as amended, that are required to be part of this
Indenture and shall, to the extent applicable, be governed by such provisions.
All things necessary have been done to make the Notes, when
executed by the Company and authenticated and delivered hereunder and duly
issued by the Company, the valid obligations of the Company and to make this
Indenture a valid agreement of the Company, in accordance with their and its
terms.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of
the Notes by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of the Notes, as follows:
2
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. Definitions.
For all purposes of this Indenture, except as otherwise
expressly provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings
assigned to them in this Article, and include the plural as well as
the singular;
(b) all other terms used herein that are defined in the Trust
Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein, and the terms "cash transaction" and
"self-liquidating paper", as used in TIA Section 311, shall have the
meanings assigned to them in the rules of the Commission adopted under
the Trust Indenture Act;
(c) all accounting terms not otherwise defined herein have
the meanings assigned to them in accordance with GAAP; and
(d) the words "herein", "hereof" and "hereunder" and other
words of similar import refer to this Indenture as a whole and not to
any particular Article, Section or other subdivision.
Certain terms, used principally in Article Ten, are defined in
that Article.
"Accounts Receivable Subsidiary" means any Restricted
Subsidiary of the Company that is, directly or indirectly, wholly owned by the
Company (other than directors' qualifying shares) and organized for the purpose
of and engaged in (i) purchasing, financing, and collecting accounts receivable
obligations of customers of the Company or its Restricted Subsidiaries, (ii) the
sale or financing of such accounts receivable or interests therein and (iii)
other activities incident thereto.
"Acquired Debt" means Debt of a Person (a) existing at the
time such Person becomes a Subsidiary or (b) assumed in connection with the
acquisition of assets from such Person; provided that, for the purposes of
Section 1010, such Debt shall be deemed to be incurred on the date of the
related acquisition of assets from any Person or the date the acquired Person
becomes a Restricted Subsidiary.
3
"Act", when used with respect to any Holder, has the meaning
specified in Section 104.
"Affiliate" means, as to any Person, any other Person that
directly or indirectly controls, or is under common control with, or is
controlled by, such Person. As used in this definition, "control" (including,
with its correlative meanings, "controlled by" and "under common control with")
shall mean possession, directly or indirectly, of power to direct or cause the
direction of management or policies of such Person (whether through ownership of
securities or partnership or other ownership interests, by contract or
otherwise), provided that, in any event, any Person that owns directly or
indirectly 10% of more of the securities having ordinary voting power for the
election of directors or other governing body of a corporation or 10% or more of
the partnership or other ownership interests of any other Person (other than as
a limited partner of such other Person) shall be deemed to control such
corporation or other Person. Notwithstanding the foregoing, no individual shall
be deemed to be an Affiliate of a Person solely by reason of his or her being an
officer or director (or equivalent) of such Person.
"Asset Sale" means, with respect to any Person, any transfer,
conveyance, sale, lease or other disposition (including, without limitation, by
way of sale-and-leaseback and dispositions pursuant to any consolidation or
merger) by such Person or any of its Restricted Subsidiaries to any Person other
than to such Person or its Restricted Subsidiaries in any single transaction or
series of transactions of (i) shares of Capital Stock or other ownership
interests of another Person (other than directors' qualifying shares) or (ii)
any other property or assets of such Person or any of its Restricted
Subsidiaries other than sales of property or assets in the ordinary course of
business and consistent with past practices. For purposes of this definition,
any series of related transactions that, if effected as a single transaction,
would constitute an Asset Sale, shall be deemed to be a single Asset Sale when
the last such transaction that is a part thereof is effected, provided that such
last transaction is effected within 12 months of the first such transaction. For
purposes of Section 1016, the term "Asset Sale" (i) when used with respect to
the Company, shall exclude any asset disposition permitted pursuant to Article
Eight that constitutes a disposition of all or substantially all of the assets
of the Company and its Restricted Subsidiaries taken as a whole, (ii) shall
exclude any Asset Sale of less than or equal to $2.0 million, (iii) shall
exclude sales of Eligible Cash Equivalents and Permitted Temporary Investments;
and (iv) shall exclude any sale, conveyance, disposition or other transfer of
the Capital Stock of an Unrestricted Subsidiary or other Investment described in
clause (iv) of the definition of Restricted Payment, provided that such
Investment was permitted by the terms of this Indenture. Notwithstanding the
provisions of Section 1016, the Company and its Restricted Subsidiaries may (a)
sell or dispose of damaged, worn out or other obsolete property in the ordinary
course of business so long as such property is no longer necessary for the
proper conduct of the business of the Company or such Restricted Subsidiary, as
applicable, (b) create or assume Liens (or permit any foreclosure thereon)
securing Debt to the extent that
4
such Lien does not violate Section 1011, and (c) sell, convey, transfer, lease
or otherwise dispose of accounts receivable to an Accounts Receivable Subsidiary
or to Persons that are not Affiliates of the Company or any Subsidiary of the
Company in the ordinary course of business, including in connection with
financing transactions.
"Attributable Debt" means, with respect to an operating lease
included in any Sale and Leaseback Transaction at the time of determination, the
present value (discounted at the interest rate implicit in the lease or, if not
known, at the Company's incremental borrowing rate) of the obligations of the
lessee of the property subject to such lease for rental payments during the
remaining term of the lease included in such transaction, including any period
for which such lease has been extended or may, at the option of the lessor, be
extended, or until the earliest date on which the lessee may terminate such
lease without penalty or upon payment of penalty (in which case the rental
payments shall include such penalty), after excluding from such rental payments
all amounts required to be paid on account of maintenance and repairs,
insurance, taxes, assessments, water, utilities and similar charges.
"Average Life" means, as of any date, with respect to any
Debt, the quotient obtained by dividing (i) the sum of the products of (x) the
number of years from such date to the dates of each scheduled principal payment
(including any sinking fund or mandatory redemption payment requirements) of
such Debt multiplied in each case by (y) the amount of such principal payment by
(ii) the sum of all such principal payments.
"Board of Directors" means either the board of directors of
the Company or any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by
the Secretary or an Assistant Secretary of the Company to have been duly adopted
by the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday
and Friday that is not a day on which banking institutions in the Borough of
Manhattan, The City of New York are authorized or obligated by law or executive
order to close.
"Capital Lease Obligation" of any Person means the obligation
to pay rent or other payment amounts under a lease of (or other Debt arrangement
conveying the right to use) real or personal property of such Person that is
required to be classified and accounted for as a capital lease or a liability on
the face of a balance sheet of such Person in accordance with GAAP and the
Stated Maturity thereof shall be the date of the last payment of rent or any
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.
5
"Capital Stock" in any Person means any and all shares,
interests, participations or other equivalents in the equity interest (however
designated) in such Person and any rights (other than Debt securities
convertible into an equity interest), warrants or options to acquire an equity
interest in such Person.
"Change of Control" means the occurrence of any of the
following events: (i) any "person" or "group" (as such terms are used in
Sections 13(d) and 14(d) of the Exchange Act) other than a Permitted Holder is
or 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 securities that such Person has the right to acquire, whether
such right is exercisable immediately or only after the passage of time, upon
the happening of an event or otherwise), directly or indirectly, of more than
50% of the total Voting Capital Stock of the Company; provided that Permitted
Holders do not otherwise control the election of a majority of the Board of
Directors of the Company; (ii) the Company consolidates with, or merges with or
into, another Person or sells, assigns, conveys, transfers, leases or otherwise
disposes of all or substantially all of its assets to any Person, or any Person
consolidates with, or merges with or into, the Company, in any such event
pursuant to a transaction in which the outstanding Voting Capital Stock of the
Company is converted into or exchanged for cash, securities or other property,
and immediately after such transaction a "person" or "group" (as such terms are
used in Sections 13(d) and 14(d) of the Exchange Act) other than a Permitted
Holder is 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 securities that such Person has the right to acquire, whether
such right is exercisable immediately or only after the passage of time, upon
the happening of an event or otherwise), directly or indirectly, of more than
50% of the total Voting Capital Stock of the surviving or transferee Person;
provided that Permitted Holders do not otherwise control the election of a
majority of the Board of Directors of the Company; (iii) during any period of
two consecutive years, individuals who at the beginning of such period
constituted the Board of Directors (together with any new directors whose
election by the Board of Directors or whose nomination for election by the
members of the Company was approved by (a) one or more Permitted Holders or (b)
a vote of a majority of the directors of the Company then still in office who
were either directors at the beginning of such period or whose election or
nomination for election was previously so approved) cease for any reason to
constitute 66 2/3% of the Board of Directors then in office; and (iv) the
approval by the holders of Capital Stock of the Company of any plan or proposal
for the liquidation or dissolution of the Company.
"Class A Common Stock" means, with respect to the Company, the
shares of Class A Common Stock, par value $.01 per share.
"Class B Common Stock" means, with respect to the Company, the
shares of Class B Common Stock, par value $.01 per share.
6
"Closing Date" means the date on which the Notes originally
are issued under this Indenture.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Securities Exchange Act of
1934, or, if at any time after the execution of this Indenture such Commission
is not existing and performing the duties now assigned to it under the Trust
Indenture Act, then the body performing such duties at such time.
"Common Stock" means, with respect to the Company, the Class A
Common Stock, the Class B Common Stock or any similar common stock of the
Company.
"Company" means the Person named as the "Company" in the first
paragraph of this Indenture, until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Request" or "Company Order" means a written request
or order signed in the name of the Company by an officer of the Company, and
delivered to the Trustee.
"Consolidated Interest Expense" means, with respect to any
Person for any period, without duplication (A) the sum of (i) the aggregate
amount of cash and non-cash interest expense (including capitalized interest) of
such Person and its Restricted Subsidiaries for such period as determined on a
consolidated basis in accordance with GAAP in respect of Debt (including,
without limitation, (v) any amortization of debt discount, (w) net costs
associated with Interest Swap Obligations (including any amortization of
discounts), (x) the interest portion of any deferred payment obligation, (y) all
accrued interest, and (z) all commissions, discounts and other fees and charges
owed with respect to letters of credit, bankers' acceptances or similar
facilities) paid or accrued, or scheduled to be paid or accrued, during such
period; (ii) dividends on preferred stock or preferred equity interests of such
Person and of its Restricted Subsidiaries (if paid to a Person other than such
Person or its Restricted Subsidiaries) declared and payable in cash; (iii) the
portion of any rental obligation of such Person or its Restricted Subsidiaries
in respect of any Capital Lease Obligation allocable to interest expense in
accordance with GAAP; (iv) the portion of any rental obligation of such Person
or its Restricted Subsidiaries in respect of any Sale and Leaseback Transaction
allocable to interest expense (determined as if such were treated as a Capital
Lease Obligation); less (B) to the extent included in (A) above, amortization or
write-off of deferred financing costs of such Person and its Restricted
Subsidiaries during such period and any charge related to any premium or penalty
in connection with redeeming or retiring any Debt of such Person and its
Restricted Subsidiaries prior to its stated maturity; in the case of both (A)
and (B) above, after elimination of intercompany accounts among such Person and
its Restricted Subsidiaries and as determined in accordance with GAAP.
7
"Consolidated Net Income" of any Person means, for any period,
the aggregate net income (or net loss) of such Person and its Restricted
Subsidiaries for such period on a consolidated basis determined in accordance
with GAAP; provided that there shall be excluded therefrom, without duplication
(a) all items classified as extraordinary, (b) any net income or loss of any
Person other than such Person and its Restricted Subsidiaries, except with
respect to net income to the extent of the amount of dividends or other
distributions actually paid in cash to such Person or its Restricted
Subsidiaries by such other Person during such period, (c) the net income or loss
of any Person acquired by such Person or any of its Restricted Subsidiaries in a
pooling-of-interests transaction for any period prior to the date of such
acquisition, (d) gains or losses in respect of any sale, transfer or disposition
of assets other than in the ordinary course of business by such Person or its
Restricted Subsidiaries, (e) the net income or loss of any Restricted Subsidiary
of such Person to the extent that the payment of dividends or other
distributions to such Person at the time is restricted by the terms of its
charter or any agreement, instrument, contract, judgment, order, decree,
statute, rule, governmental regulation or otherwise, except for any dividends or
distributions actually paid or that could have been paid by such Restricted
Subsidiary to such Person in compliance with such restrictions, (f) any
non-cash, nonrecurring charges, (g) any non-cash compensation charge arising
from any grant of stock options and (h) any gain or loss, net of taxes, realized
on the termination of an employee pension benefit plan.
"Corporate Trust Office" means the principal corporate trust
office of the Trustee, at which at any particular time its corporate trust
business shall be administered, which office at the date of execution of this
Indenture is located at 000 X. Xxxx Xxxxxx - 0xx Xx., Xxxxxxxx, Xxxxxxxx 00000
except that, with respect to presentation of Notes for payment or for
registration of transfer or exchange, such term shall mean the office or agency
of the Trustee at which, at any particular time, its corporate agency business
shall be conducted.
"Corporation" includes corporations, associations, companies
and business trusts.
"Credit Agreement" means a secured or unsecured credit
agreement providing for revolving credit loans, term loans and/or letters of
credit between the Company and one or more lenders, as such agreement may be
amended, modified, supplemented, refunded, refinanced, restructured, renewed,
repaid or replaced from time to time (whether in whole or in part, whether with
the original agent or lenders or other agents or lenders or otherwise and
whether provided pursuant to the facility contemplated by the Financing
Commitment Letter or otherwise).
8
"Currency Hedge Obligations" means the obligations of any
Person, whether or not incurred in the ordinary course of business, pursuant to
any foreign currency exchange agreement, option or futures contract or other
similar agreement or arrangement.
"Debt" means at any time (without duplication), with respect
to any Person, and whether or not contingent, (i) any obligation of such Person
for money borrowed, (ii) any obligation of such Person evidenced by bonds,
debentures, notes, Guarantees or other similar instruments, including, without
limitation, any such obligations incurred in connection with acquisition of
property, assets or businesses, excluding trade accounts payable arising in the
ordinary course of business, (iii) any reimbursement obligation of such Person
with respect to letters of credit, bankers' acceptances or similar facilities
issued for the account of such Person, (iv) any 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 that in either case are not more than 90 days overdue or are being
contested in good faith), which purchase price is due more than six months after
the date of placing such property in service or taking delivery and title
thereto or the completion of such service, (v) any Capital Lease Obligation of
such Person, (vi) the maximum fixed redemption or repurchase price of Redeemable
Capital Stock of such Person at the date of determination, (vii) to the extent
not otherwise included in this definition of "Debt", any Interest Swap
Obligations or Currency Hedge Obligations of such Person at the date of
determination, (viii) Attributable Debt of such Person with respect to any Sale
and Leaseback Transaction to which such Person is a party, (ix) preferred stock
of a Restricted Subsidiary of such Person, and (x) to the extent not otherwise
included in this definition of "Debt", any obligation of the type referred to in
clauses (i) through (ix) of this definition of another Person and all dividends
and distributions of another Person the payment of which, in either case, such
Person has Guaranteed, or the payment of which is secured by (or for which the
holder of such obligation has an existing right, contingent or otherwise, to be
secured by) any Lien upon or with respect to property or assets owned by such
Person, provided, however, if the obligations secured by a Lien (other than a
Permitted Lien not securing any liability that would itself constitute Debt) on
any assets or property have not been assumed by such Person in full or are not
such Person's legal liability in full, the amount of such Debt for purposes of
this definition shall be limited to the lesser of the amount of Debt secured by
such Lien or the value of the property subject to such Lien. For purposes of the
preceding sentence, the maximum fixed repurchase price of any Redeemable Capital
Stock that does not have a fixed repurchase price shall be calculated in
accordance with the terms of such Redeemable Capital Stock as if such Redeemable
Capital Stock were repurchased on any date on which Debt shall be required to be
determined pursuant to this Indenture; provided, however, that if such
Redeemable Capital Stock is not then permitted to be repurchased, the repurchase
price shall be the book value of such Redeemable Capital Stock. The principal
amount outstanding of any Debt issued with original issue discount is the
accreted value of such Debt and Debt shall not include any liability for
federal, state, local or other taxes. The amount of Debt of any Person at any
date shall be the outstanding
9
balance at such date of all unconditional obligations as described above and the
maximum liability of any Guarantees at such date.
"Debt to Annualized EBITDA Ratio" means, as at any date of
determination, the ratio of (i) the aggregate amount of Debt of the Company and
its Restricted Subsidiaries on a consolidated basis as at the date of
determination to (ii) the aggregate amount of EBITDA of the Company and its
Restricted Subsidiaries for the two preceding fiscal quarters for which
financial information is available immediately prior to the date of
determination multiplied by two; provided that any Debt incurred or retired by
the Company or any of its Restricted Subsidiaries during the fiscal quarter in
which the transaction date occurs shall be calculated as if such Debt was so
incurred or retired on the first day of the fiscal quarter in which the date of
determination occurs; and provided further that (x) if the transaction giving
rise to the need to calculate the Debt to Annualized EBITDA Ratio would have the
effect of increasing or decreasing Debt or EBITDA in the future, Debt or EBITDA
shall be calculated on a pro forma basis as if such transaction had occurred on
the first day of such two fiscal quarter period preceding the date of
determination, and (y) if during such two fiscal quarter period, the Company or
any of its Restricted Subsidiaries shall have engaged in any Asset Sale of any
company, entity or business, EBITDA for such period shall be reduced by an
amount equal to the EBITDA (if positive), or increased by an amount equal to the
EBITDA (if negative), directly attributable to the company, entity or business
that is the subject of such Asset Sale and any related retirement of Debt as if
such Asset Sale and related retirement of Debt had occurred on the first day of
such period or (z) if during such two fiscal quarter period the Company or any
of its Restricted Subsidiaries shall have acquired any company, entity or
business, EBITDA shall be calculated on a pro forma basis as if such acquisition
and related financing had occurred on the first day of such period.
"Debt Securities" means any debt securities (including any
Guarantee of such securities) issued by the Company and/or any Restricted
Subsidiary in connection with a public offering (whether or not underwritten) or
a private placement (provided such private placement is underwritten for resale
pursuant to Rule 144A, Regulation S or otherwise under the Securities Act or
sold on an agency basis by a broker-dealer or one of its Affiliates to 10 or
more beneficial holders); it being understood that the term "Debt Securities"
shall not include any evidence of indebtedness under the Credit Agreement or
other commercial bank borrowings or similar borrowings (including the facility
contemplated by the Financing Commitment Letter), recourse transfers of
financial assets, capital leases or other types of borrowings incurred in a
manner not customarily viewed as a "securities offering".
"Default" means any event, act or condition the occurrence of
which is, or after notice or the passage of time or both would be, an Event of
Default.
"Defaulted Interest" has the meaning specified in Section 307.
10
"Disinterested Director" means, with respect to any
transaction or series of related transactions, a member of the Board of
Directors of the Company who has no material direct or indirect financial
interest in or with respect to such transaction or series of related
transactions. For purposes of this definition, no Person would be deemed not to
be a Disinterested Director solely because such Person or an Affiliate of such
Person holds Capital Stock of the Company.
"EBITDA" means, with respect to any Person for any period, the
sum for such Person for such period of Consolidated Net Income plus, to the
extent reflected in the income statement of such Person for such period from
which Consolidated Net Income is determined, without duplication, (i)
Consolidated Interest Expense, (ii) income tax expense, (iii) depreciation
expense, (iv) amortization expense including without limitation, amortization of
goodwill and other intangibles, (v) any charge related to any premium or penalty
paid in connection with redeeming or retiring any Debt prior to its stated
maturity and (vi) any non-cash charges excluded in calculating Consolidated Net
Income less any non-cash charges added to the calculation of Consolidated Net
Income (excluding in each case any such non-cash charge that requires an accrual
of or reserve for cash charges for any future period).
"Eligible Cash Equivalents" means (i) United States dollars,
(ii) securities issued or directly and fully guaranteed or insured by the United
States government or any agency or instrumentality thereof having maturities of
not more than one year and one day from the date of acquisition, (iii)
certificates of deposit and Eurodollar time deposits with maturities of one year
or less from the date of acquisition, bankers' acceptances with maturities not
exceeding six months and overnight bank deposits, in each case with any
commercial bank(s) domiciled in the United States or in any member of the
Organization for Economic Cooperation and Development having capital and surplus
in excess of $500.0 million and a Xxxxx Bank Watch Rating of "B" or better, (iv)
repurchase obligations with a term of not more than seven days for underlying
securities of the types described in clauses (ii) and (iii) entered into with
any financial institution meeting the qualifications specified in clause (iii)
above, (v) commercial paper rated no lower than P-2 or the equivalent thereof by
Xxxxx'x Investors Service, Inc. or no lower than A-2 or the equivalent thereof
by Standard & Poor's Rating Services or corporate notes, bonds or medium term
notes rated no lower than A-2 or the equivalent thereof by Xxxxx'x Investors
Service, Inc. or no lower than A or the equivalent thereof by Standard & Poor's
Ratings Services, and in each case maturing within one year and one day after
the date of acquisition, (vi) direct obligations issued by any state of the
United States or any political subdivision of any such state or political
instrumentality thereof maturing, or subject to tender at the option of the
holder thereof, within 90 days after the date of acquisition, having a rating of
A from Standard & Poor's Ratings Services or A-2 from Xxxxx'x Investors Service,
Inc., (vii) asset-backed securities with an Average Life equal to or less than
one year and one day from the time of acquisition and rated no lower than Aaa or
the equivalent thereof by Xxxxx'x Investors Service, Inc. or
11
AAA or the equivalent thereof by Standard & Poor's Ratings Services; and (viii)
investments in money market funds substantially all of whose assets comprise
securities of the types described in clauses (i) through (vii).
"Equity Offerings" means the U.S. Equity Offering together
with the International Equity Offering.
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Fair Market Value" means, with respect to any asset or
property, the sale value that could be obtained 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
herein, Fair Market Value shall be determined by the Board of Directors of the
Company acting in good faith and as of the date on which such determination is
made.
"Federal Communications Commission" means the Federal
Communications Commission, or, if at any time after the execution of this
Indenture such Commission is not existing and performing the duties now assigned
to it, then the body performing such duties at such time.
"Financing Commitment Letter" means the commitment letter
between the Company and Northern Telecom, Inc. setting forth the anticipated
terms and conditions under which Northern Telecom, Inc. will provide loans to
the Company in an aggregate amount of up to $780.0 million that will be used to
provide working capital and finance the purchase of certain telecommunications
system equipment, software and services.
"GAAP" means United States generally accepted accounting
principles, consistently applied, 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
may be approved by a significant segment of the accounting profession of the
United States, that are applicable to the circumstances as of the date of
determination; provided, however, that, except as otherwise specifically
provided, all calculations made for purposes of determining compliance with the
terms of the provisions of this Indenture shall utilize GAAP in effect at the
time of preparation of, and in accordance with the GAAP used to prepare, the
historical financial statements of the Company on the Issue Date.
12
"Guarantee" means, as applied to any obligation of another
Person, (i) a guarantee (other than by endorsement of negotiable instruments for
collection in the ordinary course of business), direct or indirect, in any
manner, of any part or all of such obligation, (ii) any direct or indirect
obligation, contingent or otherwise, of a Person guaranteeing or having the
effect of guaranteeing the obligations of any other Person in any manner and
(iii) an agreement of a Person, direct or indirect, contingent or otherwise, the
practical effect of which is to assure in any way the payment or performance (or
payment of damages in the event of non-performance) of all or any part of such
obligation of another Person (and "Guaranteed", "Guaranteeing" and "Guarantor"
shall have meanings correlative to the foregoing).
"incur" means, with respect to any Debt or other obligation of
any Person, to create, issue, incur (by conversion, exchange or otherwise),
extend, assume, Guarantee or otherwise become liable in respect of such Debt or
other obligation or the recording, as required pursuant to GAAP or otherwise, of
any such Debt or obligation on the balance sheet of such Person provided that
neither the accrual of interest nor the accretion of original issue discount
shall be considered an incurrence of Debt (and "incurrence", "incurred",
"incurrable" and "incurring" shall have meanings correlative to the foregoing);
provided, however, that a change in GAAP that results in an obligation of such
Person that exists at such time becoming Debt shall not be deemed an incurrence
of such Debt. Debt otherwise incurred by a Person before it becomes a Restricted
Subsidiary of the Company shall be deemed to have been incurred at the time at
which it becomes a Restricted Subsidiary.
"Holder" means a Person in whose name a Note is registered in
the Note Register.
"Indenture" means this instrument as originally executed and
as it may from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof.
"Interest Payment Date" means the Stated Maturity of an
installment of interest on the Notes.
"Interest Swap Obligations" means, with respect to any Person,
the obligations of such Person pursuant to any interest rate swap agreement,
interest rate cap, collar or floor agreement or other similar agreement or
arrangement.
"International Equity Offering" means the offering outside of
the United States and Canada of 1,100,000 shares of the Company's Class A Common
Stock pursuant to the registration statement on Form S-1 (No. 333-37381), as
amended, filed by the Company with the Securities and Exchange Commission.
13
"Invested Capital" means the sum of (a) 15% of the aggregate
net cash proceeds received by the Company (or its predecessor) from the issuance
of (or capital contributions with respect to) any Qualified Capital Stock (b)
the aggregate net cash proceeds received by the Company from the issuance of (or
capital contributions with respect to) any Qualified Capital Stock (including
preferred stock but only if any redemption thereof is permitted only after the
Stated Maturity of the Notes) or Subordinated Stockholder Debt subsequent to the
Issue Date, other than the issuance of Qualified Capital Stock to a Restricted
Subsidiary of the Company, and (c) all net cash proceeds from the sales of
Redeemable Capital Stock of the Company or Debt securities of the Company
convertible into Qualified Capital Stock of the Company, in each case upon such
redemption or conversion thereof into Qualified Capital Stock; provided,
however, that Invested Capital shall be excluded from any computation thereof to
the extent utilized to make a Restricted Payment.
"Investment" by any Person means any direct or indirect loan,
advance (or other extension of credit, including any Guarantee) or capital
contribution to (by means of any transfer of cash or other property to others or
any other payments for property or services for the account or use of others),
the purchase or acquisition of any Capital Stock, bonds, notes, debentures or
other securities of, the acquisition, by purchase or otherwise, of all or
substantially all of the businesses or assets or stock or other evidence of
beneficial ownership of, any Person or making of any Investment in any Person.
Investments shall exclude accounts receivable and other extensions of trade
credit on commercially reasonable terms in accordance with normal trade
practices.
"Issue Date" means the date on which the Notes are first
authenticated and delivered under this Indenture.
"Lien" means, with respect to any property or other asset, any
mortgage or deed of trust, pledge, hypothecation, assignment, deposit
arrangement, security interest, lien (statutory or other), charge, easement,
preference, priority or other encumbrance on or with respect to such property or
other asset (including, without limitation, any conditional sale or other title
retention agreement having substantially the same economic effect as any of the
foregoing).
"Maturity", when used with respect to a Note, means the date
on which the principal of such Note becomes due and payable as provided therein
or herein, whether at the Stated Maturity, on the purchase date established
pursuant to the terms of this Indenture with regard to a Change of Control Offer
or an Asset Sale Offer, as applicable, or by declaration of acceleration, call
for redemption or otherwise.
"Net Cash Proceeds" means, (a) with respect to Asset Sales of
any property or other assets by a Person or its Restricted Subsidiaries, cash
and cash equivalents received net
14
of (i) all reasonable out-of-pocket expenses of such Person or such Restricted
Subsidiary incurred in connection with such sale, including, without limitation,
all legal, title and recording tax expenses, commissions and other fees and
expenses incurred (but excluding any finder's fee or broker's fee payable to any
Affiliate of such Person) and all federal, state, foreign and local taxes
arising in connection with such an Asset Sale that are paid or required to be
accrued as a liability under GAAP by such Person or its Restricted Subsidiaries,
(ii) all payments made by such Person or its Restricted Subsidiaries on any Debt
that is secured by such properties or other assets in accordance with the terms
of any Lien upon or with respect to such properties or other assets or that
must, by the terms of such Debt or in order to obtain a necessary consent to
such transaction or by applicable law, be repaid in connection with such Asset
Sale, (iii) all contractually required distributions and other payments made to
minority interest holders in Restricted Subsidiaries of such Person as a result
of such transaction, and (iv) appropriate amounts to be provided by the Company
or any Restricted Subsidiary of the Company as a reserve against any liabilities
associated with such Asset Sale, including, without limitation, pension and
other post-employment benefit liabilities, liabilities related to environmental
matters and liabilities under any indemnification obligations associated with
such Asset Sale; provided that, in the event that any consideration for a
transaction (that otherwise would constitute Net Cash Proceeds) is required to
be held in escrow pending determination of whether a purchase price adjustment
shall be made or is reserved pursuant to clause (iv) above, such consideration
(or any portion thereof) shall become Net Cash Proceeds only at such time as it
is released to such Person or its Restricted Subsidiaries from escrow or ceases
to be reserved, and provided that any non-cash consideration received in
connection with any transaction that is subsequently converted to cash shall be
deemed to be Net Cash Proceeds at such time, for purposes of an Asset Sale and
shall thereafter be applied in accordance with Section 1016, and (b) with
respect to any issuance or sale of Capital Stock, the proceeds of such issuance
or sale in the form of cash or cash equivalents, including payments in respect
of deferred payment obligations (to the extent corresponding to the principal,
but not interest, component thereof) when received in the form of cash or cash
equivalents (except to the extent such obligations are financed or sold with
recourse to the Company or any Restricted Subsidiary of the Company) and
proceeds from the conversion of other property received when converted to cash
or cash equivalents, net of attorney's fees, underwriters' or placement agents'
fees, discounts or commissions and brokerage, consultant and other fees incurred
in connection with such issuance or sale and net of taxes paid or payable as a
result thereof. For purposes of the preceding clause (b) the value of the
aggregate Net Cash Proceeds received by the Company upon the issuance of Capital
Stock either upon the conversion of convertible Debt or Redeemable Capital
Stock, shall be the Net Cash Proceeds received upon the issuance of such Debt,
or Redeemable Capital Stock, plus the incremental amount received by the Company
upon the conversion, exchange or exercise thereof.
"Note Register" and "Note Registrar" have the respective
meanings specified in Section 305.
15
"Notes" has the meaning stated in the first recital of this
Indenture and more particularly means any Notes authenticated and delivered
under this Indenture.
"Officers' Certificate" means a certificate signed by the
Chairman of the Board of Directors, a Vice Chairman of the Board of Directors,
the President or a Vice President, and by the Chief Financial Officer, the Chief
Accounting Officer, the Treasurer, an Assistant Treasurer, the Secretary or an
Assistant Secretary of the Company and delivered to the Trustee, which
certificate shall comply with this Indenture.
"Opinion of Counsel" means a written opinion of counsel, who
may be an employee of or counsel for the Company, including an employee of the
Company, and who shall be reasonably acceptable to the Trustee.
"Outstanding", when used with respect to Notes, means, as of
the date of determination, all Notes theretofore authenticated and delivered
under this Indenture, except:
(i) Notes theretofore cancelled by the Trustee or delivered
to the Trustee for cancellation;
(ii) Notes, or portions thereof, for whose payment or
redemption money in the necessary amount has been theretofore deposited
with the Trustee or any Paying Agent (other than the Company) in trust
or set aside and segregated in trust by the Company (if the Company
shall act as its own Paying Agent) for the Holders of such Notes;
provided that, if such Notes are to be redeemed, notice of such
redemption has been duly given pursuant to this Indenture or provision
therefor reasonably satisfactory to the Trustee has been made;
(iii) Notes, except to the extent expressly provided in
Sections 1302 and 1303, with respect to which the Company has effected
defeasance and/or covenant defeasance as provided in Article Thirteen;
and
(iv) Notes that have been paid pursuant to Section 306 or in
exchange for or in lieu of which other Notes have been authenticated
and delivered pursuant to this Indenture, other than any such Notes in
respect of which there shall have been presented to the Trustee proof
satisfactory to it that such Notes are held by a bona fide purchaser in
whose hands the Notes are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of Outstanding Notes have given any request, demand,
authorization, direction, consent, notice or waiver hereunder, and for the
purpose of making the calculations required by TIA Section 313, Notes owned by
the Company or any other obligor upon the Notes or any Affiliate of the Company
or such other obligor shall be disregarded and deemed not to be
16
Outstanding, except that, in determining whether the Trustee shall be protected
in making such calculation or in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Notes that the Trustee
knows to be so owned shall be so disregarded. Notes so owned that have been
pledged in good faith may be regarded as Outstanding if the pledgee establishes
to the satisfaction of the Trustee the pledgee's right so to act with respect to
such Notes and that the pledgee is not the Company or any other obligor upon the
Notes or any Affiliate of the Company or such other obligor.
"Paying Agent" means any Person (including the Company acting
as Paying Agent) authorized by the Company to pay the principal of (and premium,
if any) or interest on any Notes on behalf of the Company.
"Permitted Debt" means (a) Vendor Debt in an aggregate
principal amount not to exceed $780.0 million outstanding at any one time, (b)
Debt permitted to be borrowed under the Credit Agreement in an aggregate
principal amount not to exceed $175.0 million outstanding at any time, (c)
Telecommunications Assets Debt; (d) Debt under Interest Swap Obligations
designed to protect against or manage the Company's or any of its Subsidiaries'
exposure to fluctuations in interest rates, provided that such obligations are
related to payment obligations on other Permitted Debt, and Currency Hedging
Obligations entered into in the ordinary course of business and designed to
protect against or manage the Company's or any of its Subsidiaries' exposure to
fluctuations in foreign currency exchange rates; (e) Debt of the Company to any
of its Restricted Subsidiaries or Debt of a Restricted Subsidiary of the Company
to the Company or to another Restricted Subsidiary of the Company (but only so
long as such Debt is held by a Person who is the Company or such a Restricted
Subsidiary); (f) Debt in respect of (1) letters of credit, bankers' acceptances
or other similar instruments or obligations, issued in connection with
liabilities incurred in the ordinary course of business (including those issued
to governmental entities in connection with self-insurance under applicable
workers' compensation statutes) or (2) surety, judgment, appeal, performance and
other similar bonds, instruments or obligations provided in the ordinary course
of business; (g) Debt represented by the Notes and the Senior Discount Notes,
any Guarantees in respect thereof, and any Debt arising by reason of any Lien
granted to secure any of the foregoing Debt; (h) Debt arising from agreements
providing for indemnification, adjustment of purchase price or similar
obligations, or from Guarantees, or letters of credit, surety bonds or
performance bonds securing any obligations of the Company or any of its
Restricted Subsidiaries pursuant to such agreements, in any case incurred in
connection with the disposition of any business, assets or Restricted Subsidiary
of the Company, in a principal amount not to exceed the gross proceeds actually
received by the Company or any Restricted Subsidiary in connection with such
disposition; (i) Capital Lease Obligations in an aggregate principal amount
outstanding at any time not to exceed $10.0 million; (j) Debt in existence on
the Issue Date; (k) Debt arising from the honoring of a check, draft or similar
instrument of a Person drawn against insufficient funds, provided that such Debt
is extinguished within five Business Days of its incurrence; (l) Debt incurred
(and refinancing
17
of such Debt) not to exceed, at any one time outstanding, two times the
aggregate Net Cash Proceeds received by the Company after the Issue Date from
the issuance and sale of its Capital Stock (other than (1) Redeemable Capital
Stock and (2) preferred stock that requires the accrual of dividends in cash
prior to the Stated Maturity of the Notes) or Subordinated Stockholder Debt to a
Person that is not a Subsidiary of the Company to the extent that such Net Cash
Proceeds have not been used to make a Permitted Investment pursuant to clause
(a) of the definition of "Permitted Investments", or to make a Restricted
Payment pursuant to Section 1012, provided that such Debt does not mature prior
to the Stated Maturity of the Notes and has an Average Life longer than the
Notes; (m) any Debt incurred in connection with or given in exchange for the
renewal, extension, substitution, refunding, defeasance, refinancing or
replacement of any Debt referred to in clauses (c), (g), (j), (n), and (o) and
not incurred in violation of this Indenture ("Refinancing Debt"), provided,
however, that (1) the principal amount of such Refinancing Debt shall not exceed
the principal amount of the Debt so renewed, extended, substituted, refunded,
defeased, refinanced or replaced (plus the premiums paid, and the expenses
incurred, in connection therewith), (2) with respect to Refinancing Debt of any
Debt, if the Average Life of the Debt being renewed, extended, substituted,
refunded, defeased, refinanced or replaced is equal to or greater than the
Average Life of the Notes, the Refinancing Debt shall have an Average Life equal
to or greater than the Average Life of the Notes and shall not mature prior to
the Stated Maturity of the Notes, and (3) with respect to Refinancing Debt of
any Debt, such Refinancing Debt shall rank no more senior (including as a result
of structural subordination of the Notes), and shall be at least as
subordinated, in right of payment to the Notes as the Debt being renewed,
extended, substituted, refunded, defeased, refinanced or replaced; (n) Debt
incurred in connection with a prepayment or redemption of the Notes or the
Senior Discount Notes pursuant to a Change of Control (in the case of the Senior
Discount Notes, as defined in the Senior Discount Notes Indenture), provided
that the principal amount of such Debt does not exceed 101% of the principal
amount of the Notes or the lesser of the Accreted Value or principal amount at
Stated Maturity of the Senior Discount Notes prepaid (plus the amount of
reasonable expenses incurred in connection therewith) and that such Debt (i) has
an Average Life to stated maturity equal to or greater than the remaining
Average Life to Stated Maturity of the Notes and (ii) does not mature prior to
the Stated Maturity of the Notes; (o) Debt incurred if after giving pro forma
effect to the incurrence and application of the proceeds thereof, the Debt to
Annualized EBITDA Ratio would not equal or exceed 5 to 1 in the case of any such
incurrence; (p) Debt of the Company or any of its Restricted Subsidiaries
arising by reason of the recharacterization of the sale of accounts receivable
to an Accounts Receivable Subsidiary; and (q) Subordinated Stockholder Debt.
For purposes of determining compliance with, and any
particular amount of Debt under, Section 1011, Guarantees, Liens or obligations
with respect to letters of credit supporting Debt shall be disregarded (x) if
otherwise included in the determination of such particular amount, or (y) if
incurred by the obligor on such Debt, to the extent that any such Guarantee,
Lien or letter of credit secures the principal amount of such Debt. For purposes
18
of determining compliance with Section 1010, in the event that an item of Debt
meets the criteria of more than one of the types of Debt described in this
definition of Permitted Debt, the Company, in its sole discretion, shall
classify such item of Debt and only be required to include the amount and type
of such Debt in one of such clauses.
For purposes of determining compliance with any
Dollar-denominated restriction on the incurrence of Debt denominated in a
foreign currency, the Dollar- equivalent principal amount of such Debt incurred
pursuant thereto shall be calculated based on the relevant currency exchange
rate in effect on the date that such Debt was incurred, in the case of term
debt, or first committed, in the case of revolving credit debt, provided that
(x) the Dollar-equivalent principal amount of any such Debt outstanding on the
Issue Date shall be calculated based on the relevant currency exchange rate in
effect on the Issue Date and (y) if such Debt is incurred to refinance other
Debt denominated in a foreign currency, and such refinancing would cause the
applicable Dollar-denominated restriction to be exceeded if calculated at the
relevant currency exchange rate in effect on the date of such refinancing, such
Dollar-denominated restriction shall be deemed not to have been exceeded so long
as the principal amount of such refinancing Debt does not exceed the principal
amount of such Debt being refinanced. The principal amount of any Debt incurred
to refinance other Debt, if incurred in a different currency from the Debt being
refinanced, shall be calculated based on the currency exchange rate applicable
to the currencies in which such respective Debt is denominated that is in effect
on the date of such refinancing.
Debt of any Person that is not a Restricted Subsidiary, which
Debt is outstanding at the time such Person becomes a Restricted Subsidiary or
is merged with or into or consolidated with the Company or a Restricted
Subsidiary, shall be deemed to have been incurred at the time such Person
becomes a Restricted Subsidiary or is merged with or into or consolidated with
the Company or a Restricted Subsidiary, and Debt that is assumed at the time of
the acquisition of any asset shall be deemed to have been incurred at the time
of such acquisition.
"Permitted Holder" means each of Microwave Services Inc.,
Digital Services Corporation, Nippon Telegraph and Telephone Corporation, Xxxx
X. Xxxxx and their respective Affiliates on the Issue Date.
"Permitted Investments" means (a) Investments in an aggregate
amount not to exceed the sum of (i) Invested Capital, (ii) the Fair Market Value
of Qualified Capital Stock of the Company, Redeemable Capital Stock of the
Company, or Debt securities of the Company convertible into Qualified Capital
Stock of the Company, in the latter two cases upon such redemption or conversion
thereof into Qualified Capital Stock of the Company, issued by the Company or
any Restricted Subsidiary of the Company as consideration for any such
Investments made pursuant to this clause (a), and (iii) in the case of the
disposition or repayment of any Investment made pursuant to this clause (a)
after the Issue Date (including
19
by redesignation of an Unrestricted Subsidiary of the Company to a Restricted
Subsidiary of the Company), an amount equal to the lesser of the return of
capital with respect to such Investment and the initial amount of such
Investment, in either case, less the cost of the disposition of such Investment;
(b) Eligible Cash Equivalents; (c) Investments in assets used in the ordinary
course of business; (d) Investments in any Person as a result of which such
Person becomes a Restricted Subsidiary of the Company provided that such
Restricted Subsidiary is engaged in a Telecommunications Business; (e)
Investments in trade receivables, prepaid expenses, negotiable instruments held
for collection and lease, utility and workers' compensation, performance and
other similar deposits; (f) loans and advances to employees made in the ordinary
course of business; (g) Interest Swap Obligations and Currency Hedge
Obligations; (h) bonds, notes, debentures or other securities received as a
result of Asset Sales permitted under Section 1016; (i) Investments in existence
at the Issue Date and any extension, modification or renewal of any such
Investment that does not increase the amount of such Investment; (j)
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;
(k) any Investment by a Restricted Subsidiary of the Company or any Investment
by the Company or a Restricted Subsidiary of the Company in a Restricted
Subsidiary of the Company; (l) Investments deemed to have been made as a result
of the acquisition of a Person that at the time of such acquisition held
instruments constituting Investments that were not acquired in contemplation of,
or in connection with, the acquisition of such Person; and (m) Investments in or
acquisitions of Capital Stock, Debt, securities or other property of Persons
(other than Affiliates of the Company) received by the Company or any of its
Restricted Subsidiaries in the bankruptcy or reorganization of or by such Person
or any exchange of such Investment with the issuer thereof or taken in
settlement of or other resolution of claims or disputes, and, in each case,
extensions, modifications and renewals thereof.
"Permitted Liens" means (a) Liens securing Vendor Debt and
Debt incurred under the Credit Agreement provided that such Debt was incurred in
compliance with clauses (a) and (b), respectively, of the definition of
Permitted Debt; (b) Liens securing Telecommunications Assets Debt; (c) Liens on
property of a Person existing at the time such Person is merged with or into, or
consolidated with, the Company or becomes a Restricted Subsidiary of the Company
(and not incurred in anticipation of such transaction); provided that such Liens
are not extended to the property and assets of the Company and its Restricted
Subsidiaries, other than the acquired Restricted Subsidiary; (d) Liens existing
as of the Issue Date; (e) Liens on property or assets acquired by the Company or
any of its Restricted Subsidiaries, provided that such Liens were not incurred
in connection with, or in contemplation of such acquisition and do not extend to
any other property or assets; (f) Liens in respect of Interest Swap Obligations
and Currency Hedge Obligations permitted under the Indenture; (g) Liens in favor
of the Company or any of its Restricted Subsidiaries; (h) Liens securing the
Notes and the Senior Discount Notes, or any Guarantees thereof; (i) any interest
20
or title of a lessor in the property subject to any Capitalized Lease Obligation
or operating lease; (j) Liens securing reimbursement obligations with respect to
letters of credit that encumber documents and other property relating to such
letters of credit and the products and proceeds thereof; (k) Liens arising out
of conditional sale, title retention, consignment or similar arrangements for
the sale of goods entered into by the Company or any of its Restricted
Subsidiaries in the ordinary course of business; (l) Liens on the property or
assets or Capital Stock of Accounts Receivable Subsidiaries and Liens arising
out of any sale of accounts receivable in the ordinary course (including in
connection with a financing transaction) to or by an Accounts Receivable
Subsidiary or to Persons that are not Affiliates of the Company; (m) Liens on
the Pledged Securities in favor of the Holders of the Notes; and (n) any
extension, renewal, refinancing, refunding or replacement of any Permitted Lien
(or any arrangement to which such Permitted Lien relates), provided that such
new Lien, pledge or deposit is limited to the property or assets that secured
(or under the arrangement under which the original Permitted Lien arose, could
secure) the obligations to which such Liens relate.
"Permitted Temporary Investments" means (a) all Eligible Cash
Equivalents except that the term "not more than one year and one day after the
date of acquisition" is changed to "not more than two years after the Issue
Date" and (b) debt securities with an investment grade rating by Standard &
Poor's Rating Services and Xxxxx'x Investors Service, Inc. issued by any Person
and maturing within two years after the Issue Date.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization,
limited liability corporation or government or any agency or political
subdivision thereof.
"Pledge Account" means an account established with the Trustee
pursuant to the terms of the Pledge Agreement for the deposit of the Pledged
Securities.
"Pledge Agreement" means the Collateral Pledge and Security
Agreement, dated as of the date of this Indenture, by and between the Trustee
and the Company, governing the disbursement of funds from the Pledge Account.
"Pledged Securities" means the securities purchased by the
Company with a portion of the net proceeds from the offering of the Notes and
the Senior Discount Notes, which securities shall consist of U.S. Government
Obligations, to be deposited in the Pledge Account and any securities
substituted therefor pursuant to the Pledge Agreement.
"Predecessor Note" of any particular Note means every previous
Note evidencing all or a portion of the same debt as that evidenced by such
particular Note; and, for the purposes of this definition, any Note
authenticated and delivered under Section 306 in
21
exchange for a mutilated security or in lieu of a lost, destroyed or stolen Note
shall be deemed to evidence the same debt as the mutilated, lost, destroyed or
stolen Note.
"Proportionate Interest" in any issuance of Capital Stock of a
Restricted Subsidiary means a ratio (i) the numerator of which is the aggregate
amount of all Investments in Capital Stock of such Restricted Subsidiary by the
Company and (ii) the denominator of which is the aggregate amount of all
Investments in Capital Stock of such Restricted Subsidiary by all Persons.
"Public Equity Offering" means an underwritten primary public
offering of Common Stock of the Company pursuant to an effective registration
statement filed under the Securities Act; provided that the first Public Equity
Offering pursuant to which the Company redeems Notes under Sections 203 and 1101
shall have resulted in gross proceeds to the Company of not less than $65.0
million. Such a primary offering may be undertaken either independently or in
conjunction with any secondary offering of securities of the Company.
"Qualified Capital Stock" of any Person means a class of
Capital Stock other than Redeemable Capital Stock.
"Redeemable Capital Stock" of any Person means any equity
security of such Person that by its terms (or by the terms of any security into
which it is convertible or for which it is exchangeable), or otherwise
(including on the happening of an event), is required to be redeemed or is
redeemable at the option of the holder thereof, in whole or in part (including
by operation of a sinking fund), or is exchangeable for Debt (other than at the
option of such Person), in whole or in part, at any time prior to the Stated
Maturity of the Notes.
"Redemption Date", when used with respect to any Note to be
redeemed, in whole or in part, means the date fixed for such redemption by or
pursuant to this Indenture and the terms of the Notes.
"Redemption Price", when used with respect to any Note to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture and the terms of the Notes.
"Regular Record Date", for the interest payable on any
interest payment date, means the [_________] or [_________] (whether or not a
Business Day), as the case may be, next preceding such interest payment date.
"Regulation S" means Regulation S under the General
Regulations of the Securities Act.
22
"Replacement Assets" means, with respect to any Asset Sale,
properties or assets that, as determined by the Board of Directors, as evidenced
by a Board Resolution, are used or shall be used in the Telecommunications
Business of the Company or a Restricted Subsidiary of the Company.
"Responsible Officer", when used with respect to the Trustee,
means the chairman or any vice-chairman of the board of directors, the chairman
or any vice-chairman of the executive committee of the board of directors, the
chairman of the trust committee, the president, any vice president, the
secretary, any assistant secretary, the treasurer, any assistant treasurer, the
cashier, any assistant cashier, any trust officer or assistant trust officer,
the controller or any assistant controller or any other officer of the Trustee
duly authorized and customarily performing functions similar to those performed
by any of the above-designated officers, and also means, with respect to a
particular corporate trust matter, any other duly authorized officer to whom
such matter is referred because of his knowledge of and familiarity with the
particular subject.
"Restricted Payment" means (i) a dividend or other
distribution declared and paid on the Capital Stock of the Company or to the
Company's stockholders (in their capacity as such), or declared and paid to any
Person other than the Company or a Restricted Subsidiary of the Company on the
Capital Stock of any Restricted Subsidiary of the Company, in each case, other
than dividends, distributions or payments made solely in Qualified Capital Stock
of the Company or such Restricted Subsidiary (and other than pro rata dividends
or distributions on Qualified Capital Stock of such Restricted Subsidiaries),
(ii) a payment made by the Company or any of its Restricted Subsidiaries (other
than a payment to the Company or any Restricted Subsidiary of the Company) to
purchase, redeem, acquire or retire any Capital Stock of the Company or of a
Restricted Subsidiary of the Company, (iii) a payment made by the Company or any
of its Restricted Subsidiaries to redeem, repurchase, defease (including an
in-substance or legal defeasance) or otherwise acquire or retire for value,
prior to any scheduled maturity, scheduled sinking fund or mandatory redemption
payment, of Subordinated Debt of the Company, or (iv) an Investment in any
Person, including an Unrestricted Subsidiary, other than (a) a Permitted
Investment, (b) an Investment by the Company in a Restricted Subsidiary of the
Company or (c) an Investment by a Restricted Subsidiary of the Company in the
Company or a Restricted Subsidiary of the Company. For calculation purposes upon
any Person becoming a Restricted Subsidiary of the Company, no investments in
that Person shall be considered to be Restricted Payments.
"Restricted Subsidiary" of any Person means (i) any
corporation other than an Unrestricted Subsidiary more than 50% of the
outstanding shares of Voting Stock of which is owned or controlled, directly or
indirectly, by such Person or (ii) any limited partnership other than an
Unrestricted Subsidiary of which such Person or any Restricted Subsidiary of
such Person is a general partner or (iii) any other Person (other than a
corporation or limited partnership) other than an Unrestricted Subsidiary in
which such Person, or one or more
23
other Restricted Subsidiaries of such Person, or such Person and one or more
other Restricted Subsidiaries thereof, directly or indirectly, have more than
50% of the outstanding partnership or similar interests or have the power, by
contract or otherwise, to direct or cause the direction of the policies,
management and affairs thereof.
"Rule 144A" means Rule 144A under the General Regulations of
the Securities Act.
"Sale and Leaseback Transaction" means, with respect to any
Person, any direct or indirect arrangement pursuant to which property is sold or
transferred by such Person or a Restricted Subsidiary of such Person and is
thereafter leased back from the purchaser or transferee thereof by such Person
or one of its Restricted Subsidiaries.
"Securities Act" means the Securities Act of 1933, as amended.
"Senior Discount Notes" means the Company's __% Senior
Discount Notes due 2007.
"Senior Discount Notes Indenture" means the indenture dated
November __, 1997 by and between the Trustee and the Company governing the
Senior Discount Notes.
"Significant Restricted Subsidiary" means a Restricted
Subsidiary that is a "significant subsidiary" as defined in Rule 1-02(w) of
Regulation S-X under the Securities Act and the Exchange Act, or that owns or
holds a Federal Communications Commission license for the transmission of
wireless telecommunications services.
"Special Record Date" for the payment of any Defaulted
Interest means a date fixed by the Trustee pursuant to Section 307.
"Stated Maturity", when used with respect to a Note or any
installment of interest thereon, means the date specified in such Note as the
fixed date on which the principal of such Note or such installment of interest
is due and payable.
"Strategic Equity Investor" means any Person with, a
controlled Affiliate of any Person with, or a controlling Affiliate of any
Person with, in each case, an equity market capitalization or annual revenues of
at least $1.0 billion that owns and operates businesses in the
telecommunications or related industries; provided that the Permitted Holders
and their respective Affiliates shall be excluded from this definition.
"Subordinated Debt" means Debt of the Company that is
subordinated in right of payment to the Notes.
24
"Subordinated Stockholder Debt" means Debt of the Company to a
Permitted Holder, provided that such Debt shall not (by its terms or by the
terms of any security into which it is convertible or for which it is
exchangeable) (including upon the happening of any event) pay principal,
premium, if any, or interest (upon acceleration or otherwise) until six months
after the Stated Maturity of the Notes and shall be subordinated to the Notes
pursuant to the terms of a Subordination Agreement in the form attached hereto
and the Company shall have delivered one or more opinions of counsel as to the
validity and enforceability of such Subordination Agreement.
"Subsidiary" means, with respect to any Person, (i) any
corporation more than 50% of the outstanding shares of 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 of such Person, (ii) any general partnership, joint venture or
similar entity, more than 50% of the outstanding partnership or similar
interests of which are 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 of such Person and (iii) any limited partnership of which
such Person or any Subsidiary of such Person is a general partner.
"Subsidiary Guarantee" means a Guarantee of the Notes or the
Senior Discount Notes, as the case may be, by a Restricted Subsidiary and
required pursuant to Section 1014 hereof.
"Subsidiary Guarantor" means a Restricted Subsidiary that has
executed a Subsidiary Guarantee.
"Telecommunications Assets" means all assets, rights
(contractual or otherwise) and properties, whether tangible or intangible, used
or useful in connection with a Telecommunications Business.
"Telecommunications Assets Debt" means any Debt of the Company
or any of its Restricted Subsidiaries to finance the acquisition, construction,
expansion or development of Telecommunications Assets; provided that, at the
time of incurrence, such Debt does not exceed 100% of the lesser of cost or Fair
Market Value of the Telecommunications Assets to be so acquired, constructed,
expanded or developed.
"Telecommunications Business" means, when used in reference to
any Person, that such Person is engaged primarily in the business of (i)
transmitting or providing services relating to the transmission of voice, video
or data through owned or leased transmission facilities, (ii) creating,
developing or marketing communications related network equipment, software and
other devices for use in a Telecommunications Business or (iii) evaluating,
participating in or pursuing any other activity or opportunity that is related
to those identified
25
in (i) or (ii) above; provided that the determination of what constitutes a
Telecommunications Business shall be made in good faith by the Board of
Directors of the Company.
"Transactions" means (i) the acquisition by the Company of all
of the outstanding stock of FirstMark Communications, Inc. pursuant to a stock
contribution agreement dated as of March 10, 1997 among Teligent, L.L.C.,
FirstMark Communications, Inc. and the sole stockholder of FirstMark
Communications, Inc., (ii) the capital contributions in an aggregate amount of
$60 million to Teligent L.L.C. by the original members of Teligent L.L.C., (iii)
the contribution of Associated Communications of Los Angeles to Teligent, L.L.C.
by The Associated Group, Inc., (iv) the assignment of certain licenses held by
certain of the Company's members or affiliates to the Company, (v) the grant by
the Federal Communications Commission of pending applications to provide 24 GHz
wireless services in Boston, MA and New York, NY, (vi) the investment by Nippon
Telegraph and Telephone Corporation of $100.0 million in the Company pursuant to
a securities purchase agreement dated September 30, 1997 between the Company and
Nippon Telegraph and Telephone Corporation and (vii) the merger of Teligent,
L.L.C. with and into the Company, with the Company surviving the merger.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act
of 1939 as in effect from time to time.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this Indenture until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean such successor Trustee.
"U.S. Equity Offering" means the offering in the United States
and Canada of 4,400,000 shares of the Company's Class A Common Stock pursuant to
the registration statement on Form S-1 (No. 333-37381), as amended, filed by the
Company with the Securities and Exchange Commission..
"U.S. Government Obligations" means (x) securities that are
(i) direct obligations of the United States of America for the payment of which
the full faith and credit of the United States of America is pledged or (ii)
obligations of a Person controlled or supervised by and acting as an agency or
instrumentality of the United States of America the payment of which is
unconditionally guaranteed as a full faith and credit obligation by the United
States of America, which securities, in either case under clauses (i) or (ii)
above, are not callable or redeemable at the option of the issuer thereof, and
(y) depository receipts issued by a bank (as defined in Section 3(a)(2) of the
Securities Act) as custodian with respect to any U.S. Government Obligation that
is specified in clause (x) above and held by such bank for the account of the
holder of such depository receipt, or with respect to any specific payment of
principal or interest on any U.S. Government Obligation that is so specified and
held, provided that (except as required by law) such custodian is not authorized
26
to make any deduction from the amount payable to the holder of such depository
receipt from any amount received by the custodian in respect of the U.S.
Government Obligation or the specific payment of principal or interest of the
U.S. Government Obligation evidenced by such depository receipt.
"Unrestricted Subsidiary" means (i) any Subsidiary of the
Company (a) that at the time of determination shall be an Unrestricted
Subsidiary (as designated by the Board of Directors of the Company, as provided
below), (b) that shall be engaged in the same or similar line of business as the
Company and its Restricted Subsidiaries, and (c) all the Debt of which shall be
non-recourse to the Company and its Subsidiaries other than its Unrestricted
Subsidiaries and (ii) any Subsidiary of an Unrestricted Subsidiary; provided
that notwithstanding clause (i)(c) above, the Company or a Restricted Subsidiary
of the Company may Guarantee, endorse, agree to provide funds for the payment or
maintenance of, or otherwise become directly or indirectly liable with respect
to, Debt of an Unrestricted Subsidiary but only to the extent that the Company
or such Restricted Subsidiary could make an Investment in such Unrestricted
Subsidiary pursuant to Section 1012 and any such Guarantee, endorsement or
agreement shall be deemed an incurrence of Debt by the Company for purposes of
Section 1010. The Board of Directors of the Company may designate any newly
acquired or newly formed Subsidiary to be an Unrestricted Subsidiary unless such
Subsidiary owns any capital stock of, or owns or holds any Lien on any property
of, any other Subsidiary of the Company that is not an Unrestricted Subsidiary
(other than an Subsidiary of the type referred to in clause (ii) above). Any
such designation by the Board of Directors of the Company shall be evidenced to
the Trustee by filing with the Trustee a certified copy of the Board Resolution
giving effect to such designation and an Officers' Certificate certifying that
such designation complied with the foregoing conditions. The Company's Board of
Directors may designate any Unrestricted Subsidiary to be a Restricted
Subsidiary (a "Revocation"); provided, however, that immediately after giving
effect to such designation, no Default or Event of Default shall have occurred
and be continuing, including, without limitation, under Sections 1010 and 1011,
assuming the incurrence by the Company and its Restricted Subsidiaries at the
time of such designation of all existing Debt and Liens of the Unrestricted
Subsidiary to be so designated as a Restricted Subsidiary of the Company.
"Vendor Debt" means any Debt incurred (x) pursuant to the
facility contemplated by the Financing Commitment Letter or (y) pursuant to any
agreement with one or more other vendors, suppliers or lessors of equipment
(including any facility entered into with any vendor, supplier or lessor or any
financial institution acting on behalf of any vendor, supplier or lessor as such
agreement may be amended, modified, supplemented, refunded, refinanced,
restructured, renewed or replaced from time to time (whether in whole or in
part, whether with the original agent or lenders or other agents or lenders and
whether provided under the original agreement or otherwise).
27
"Vice President", when used with respect to the Company or the
Trustee, means any vice president, whether or not designated by a number or a
word or words added before or after the title "vice president".
"Voting Stock" means, with respect to any Person, securities
of any class or classes of Capital Stock in such Person entitling the holders
thereof (whether at all times or at the times that such class of Capital Stock
has voting power by reason of the happening of any contingency) to vote in the
election of members of the board of directors or comparable body of such Person.
SECTION 102. Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee
to take any action under any provision of this Indenture, the Company shall
furnish to the Trustee an Officers' Certificate stating that all conditions
precedent, if any, provided for in this Indenture (including any covenant
compliance with which constitutes a condition precedent) relating to the
proposed action have been complied with and an Opinion of Counsel stating that
in the opinion of such counsel all such conditions precedent, if any, have been
complied with, except that in the case of any such application or request as to
which the furnishing of such documents is specifically required by any provision
of this Indenture relating to such particular application or request, no
additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than pursuant to
Section 1008(a)) shall include:
(1) a statement that each individual signing such certificate
or opinion has read such covenant or condition and the definitions
herein relating thereto;
(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 each such individual,
he has made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such covenant
or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
28
SECTION 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified
by, or covered by an opinion of, any specified Person, it is not necessary that
all such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or opinion of,
or representations by, counsel, unless such officer knows that the certificate
or opinion or representations with respect to the matters upon which his
certificate or opinion is based are erroneous. Any such certificate or Opinion
of Counsel may be based, insofar as it relates to factual matters, upon (x) a
certificate or opinion of, or representations by, an officer or officers of the
Company stating that the information with respect to such factual matters is in
the possession of the Company, unless such counsel knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to such matters are erroneous or (y) one or more certificates of
public officials.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be consolidated
and form one instrument.
SECTION 104. Acts of Holders.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given or taken
by Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agents duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agent shall be sufficient for any purpose of this
Indenture and conclusive in favor of the Trustee and the Company, if made in the
manner provided in this Section.
(b) The fact and date of the execution by any Person of any
such instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him
29
the execution thereof. Where such execution is by a signer acting in a capacity
other than his individual capacity, such certificate or affidavit shall also
constitute sufficient proof of authority. The fact and date of the execution of
any such instrument or writing, or the authority of the Person executing the
same, may also be proved in any other manner that the Trustee deems sufficient.
(c) The principal amount and serial numbers of Notes held by
any Person, and the date of holding the same, shall be proved by the Note
Register.
(d) If the Company shall solicit from the Holders of Notes any
request, demand, authorization, direction, notice, consent, waiver or other Act,
the Company may, at its option, by or pursuant to a Board Resolution, fix in
advance a record date for the determination of Holders entitled to give such
request, demand, authorization, direction, notice, consent, waiver or other Act,
but the Company shall have no obligation to do so. Notwithstanding TIA Section
316(c), such record date shall be the record date specified in or pursuant to
such Board Resolution, which shall be a date not earlier than the date 30 days
prior to the first solicitation of Holders generally in connection therewith and
not later than the date such solicitation is completed. If such a record date is
fixed, such request, demand, authorization, direction, notice, consent, waiver
or other Act may be given before or after such record date, but only the Holders
of record at the close of business on such record date shall be deemed to be
Holders for the purposes of determining whether Holders of the requisite
proportion of Outstanding Notes have authorized or agreed or consented to such
request, demand, authorization, direction, notice, consent, waiver or other Act,
and for that purpose the Outstanding Notes shall be computed as of such record
date; provided that no such authorization, agreement or consent by the Holders
on such record date shall be deemed effective unless it shall become effective
pursuant to the provisions of this Indenture not later than eleven months after
the record date.
(e) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Note shall bind every future
Holder of the same Note and the Holder of every Note issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustee, any
Paying Agent or the Company in reliance thereon, whether or not notation of such
action is made upon such Note.
SECTION 105. Notices, etc., to Trustee and Company.
Any request, demand, authorization, direction, notice,
consent, waiver or Act of Holders or other document provided or permitted by
this Indenture to be made upon, given or furnished to, or filed with,
30
(1) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or
filed in writing to or with the Trustee at its Corporate Trust Office,
Attention: [Corporate Trust Administration Division], or
(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage
prepaid, to the Company addressed to it at the address of its principal
office specified in the first paragraph of this Indenture, or at any
other address previously furnished in writing to the Trustee by the
Company.
SECTION 106. Notice to Holders; Waiver.
Where this Indenture provides for notice of any event to
Holders by the Company or the Trustee, such notice shall be sufficiently given
(unless otherwise herein expressly provided) if in writing and mailed,
first-class postage prepaid, to each Holder affected by such event, at his
address as it appears in the Note Register, not later than the latest date, and
not earlier than the earliest date, prescribed for the giving of such notice. In
any case where notice to Holders is given by mail, neither the failure to mail
such notice, nor any defect in any notice so mailed, to any particular Holder
shall affect the sufficiency of such notice with respect to other Holders. Any
notice mailed to a Holder in the manner herein prescribed shall be conclusively
deemed to have been received by such Holder, whether or not such Holder actually
receives such notice. Where this Indenture provides for notice in any manner,
such notice may be waived in writing by the Person entitled to receive such
notice, either before or after the event, and such waiver shall be the
equivalent of such notice. Waivers of notice by Holders shall be filed with the
Trustee, but such filing shall not be a condition precedent to the validity of
any action taken in reliance upon such waiver.
In case by reason of the suspension of or irregularities in
regular mail service or by reason of any other cause, it shall be impracticable
to mail notice of any event to Holders when such notice is required to be given
pursuant to any provision of this Indenture, then any manner of giving such
notice as shall be satisfactory to the Trustee shall be deemed to be a
sufficient giving of such notice for every purpose hereunder.
SECTION 107. Effect of Headings, Table of Contents and
Recitals.
The Article and Section headings herein, the Table of Contents
and the Recitals are for convenience only and shall not affect the construction
hereof.
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SECTION 108. Successors and Assigns.
All covenants and agreements in this Indenture by the Company
and the Trustee shall bind their respective successors and assigns, whether so
expressed or not.
SECTION 109. Separability Clause.
In case any provision in this Indenture or in the Notes shall
be invalid, illegal or unenforceable, the validity, legality and enforceability
of the remaining provisions shall not in any way be affected or impaired
thereby.
SECTION 110. Benefits of Indenture.
Nothing in this Indenture or in the Notes, express or implied,
shall give to any Person, (other than the parties hereto, any Paying Agent, any
Notes Registrar and their successors hereunder, and the Holders) any benefit or
any legal or equitable right, remedy or claim under this Indenture.
SECTION 111. Governing Law.
This Indenture and the Notes shall be governed by and
construed in accordance with the law of the State of New York (without giving
effect to the conflict of laws principles thereof). The Trustee, the Company,
and (by their acceptance of the Notes) the Holders, agree to submit to the
non-exclusive jurisdiction of any United States federal or state court located
in the Borough of Manhattan, in the City of New York in any action or proceeding
arising out of or relating to this Indenture or the Notes. This Indenture is
subject to the provisions of the Trust Indenture Act that are required to be
part of this Indenture and shall, to the extent applicable, be governed by such
provisions.
SECTION 112. Legal Holidays.
In any case where any Interest Payment Date, date established
for the payment of defaulted interest, Redemption Date, Change of Control
Payment Date, Asset Sale Offer Purchase Date or Stated Maturity or Maturity of
any Note shall not be a Business Day, then (notwithstanding any other provision
of this Indenture or of the Notes) payment of principal (or premium, if any) or
interest need not be made on such date, but may be made on the next succeeding
Business Day with the same force and effect as if made on the Interest Payment
Date, date established for the payment of defaulted interest, Redemption Date,
Change of Control Payment Date, Asset Sale Offer Purchase Date or at the Stated
Maturity or Maturity; provided that no interest shall accrue for the period from
and after such Interest Payment Date, date established for the payment of
defaulted interest, Redemption Date,
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Change of Control Payment Date, Asset Sale Offer Purchase Date, Stated Maturity
or Maturity, as the case may be.
SECTION 113. No Recourse Against Others.
No recourse for the payment of the principal of, or premium,
if any, or interest on, any of the Notes or for any claim based thereon or
otherwise in respect thereof, and no recourse under or upon any obligation,
covenant or agreement of the Company in this Indenture or in any of the Notes,
or because of the creation of any Debt represented thereby, shall be had against
any incorporator, shareholder, officer, director, employee or controlling person
of the Company, any Subsidiary of the Company or of any successor Person
thereof. Each Holder of Notes by accepting a Note waives and releases all such
liability, and such waiver and release is part of the consideration for the
issuance of the Notes.
SECTION 114. Exhibits and Schedules.
All exhibits and schedules attached hereto are by this
reference made a part hereof with the same effect as if herein set forth in
full.
SECTION 115. Counterparts.
This Indenture may be executed in any number of counterparts,
each of which shall be an original; but such counterparts shall together
constitute but one and the same instrument.
SECTION 116. Duplicate Originals.
The parties may sign any number of copies of this Indenture.
Each signed copy shall be an original, but all of them together represent the
same agreement.
SECTION 117. Incorporation by Reference of TIA.
Whenever this Indenture refers to a provision of the TIA, the
provision is incorporated by reference in, and made a part of, this Indenture.
Any terms incorporated by reference in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by Commission rule
under the TIA, have the meanings so assigned to them therein.
ARTICLE TWO
33
NOTES FORMS
SECTION 201. Forms Generally.
The Notes and the Trustee's certificate of authentication
shall be in substantially the forms set forth in this Article, with such
appropriate insertions, omissions, substitutions and other variations as are
required or permitted by this Indenture, and may have such letters, numbers or
other marks of identification and such legends or endorsements placed thereon as
may be required to comply with the rules of any securities exchange, law,
governmental rule or regulation, depository rule or usage, or other customary
usage or as may, consistently herewith, be determined by the officers executing
such Notes, as evidenced by their execution of the Notes. Any portion of the
text of any Note may be set forth on the reverse thereof, with an appropriate
reference thereto on the face of the Note.
The definitive Notes shall be printed, lithographed or
engraved on steel-engraved borders or may be produced in any other manner, all
as determined by the officers of the Company executing such Notes, as evidenced
by their execution of such Notes.
SECTION 202. Form of Face of Note.
TELIGENT, INC.
___% Senior Notes due 2007
No. __________ $________
Teligent, Inc., a Delaware corporation (herein called the
"Company", which term includes any successor Person under the Indenture
hereinafter referred to), for value received, hereby promises to pay to
____________________ or registered assigns, the principal sum of
____________________ Dollars on [ ], 2007, at the office or agency of the
Company referred to below, and to pay interest thereon on [ ], 1998 and
semi-annually thereafter, on [ ] and [ ] in each year, from [ ], 1997, or from
the most recent Interest Payment Date to which interest has been paid or duly
provided for, at the rate of ____% per annum, until the principal hereof is paid
or duly provided for, and (to the extent lawful) to pay on demand interest on
any overdue interest at the rate borne by the Notes from the date on which such
overdue interest becomes payable to the date payment of such interest has been
made or duly provided for. The interest so payable, and punctually paid or duly
provided for, on any Interest Payment Date will, as provided in such Indenture,
be paid to the Person in whose name this Note (or one or more Predecessor Notes)
is registered at the close of business on the Regular Record Date for such
interest, which shall be the [ ] or [ ] (whether or not a Business Day), as the
34
case may be, next preceding such Interest Payment Date. Any such interest not so
punctually paid or duly provided for shall forthwith cease to be payable to the
Holder on such Regular Record Date, and such defaulted interest, and (to the
extent lawful) interest on such defaulted interest at the rate borne by the
Notes, may be paid to the Person in whose name this Note (or one or more
Predecessor Notes) is registered at the close of business on a Special Record
Date for the payment of such Defaulted Interest to be fixed by the Trustee,
notice whereof shall be given to Holders of Notes not less than 10 days prior to
such Special Record Date, or may be paid at any time in any other lawful manner
not inconsistent with the requirements of any securities exchange on which the
Notes may be listed, and upon such notice as may be required by such exchange,
all as more fully provided in said Indenture. Payment of the principal of (and
premium, if any, on) and interest on this Note will be made at the office or
agency of the Company maintained for that purpose in The City of New York, or at
such other office or agency of the Company as may be maintained 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 payment of interest may be made at the option of the Company (i)
by check mailed to the address of the Person entitled thereto as such address
shall appear on the Note Register or (ii) by transfer to an account maintained
by the payee located in the United States.
Reference is hereby made to the further provisions of this
Note set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been duly
executed by the Trustee referred to on the reverse hereof by manual signature,
this Note shall not be entitled to any benefit under the Indenture, or be valid
or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to
be duly executed.
Dated: TELIGENT, INC.
By
------------------------------
Attest:
---------------------------------------
Authorized Signature
35
SECTION 203. Form of Reverse of Note.
This Note is one of a duly authorized issue of securities of
the Company designated as its _____% Senior Notes due 2007 (herein called the
"Notes"), limited (except as otherwise provided in the Indenture referred to
below) in aggregate principal amount to $250,000,000, that may be issued under
an indenture (herein called the "Indenture") dated as of November __, 1997
between the Company and First Union National Bank, trustee (herein called the
"Trustee", which term includes any successor trustee under the Indenture), to
which Indenture and all indentures supplemental thereto reference is hereby made
for a statement of the respective rights, limitations of rights, duties,
obligations and immunities thereunder of the Company, the Trustee and the
Holders of the Notes, and of the terms upon which the Notes are, and are to be,
authenticated and delivered.
The Company has purchased and pledged to the Trustee $_______
of Pledged Securities to provide for payment in full of the first six scheduled
interest payments due on the Notes.
The Notes are subject to redemption upon not less than 30 nor
more than 60 days notice, at any time on or after [ ], 2002 as a whole
or in part, at the election of the Company, at a Redemption Price equal to the
percentage of the principal amount set forth below if redeemed during the
12-month period beginning [ ] of the years indicated below, together in each
case with accrued and unpaid interest, if any, to the Redemption Date, all as
provided in the Indenture:
Year Redemption Price
---- ----------------
2002............................... %
2003............................... %
2004............................... %
2005 and thereafter................ 100%
In addition, up to 35% of the originally issued principal
amount of Notes may be redeemed, at the election of the Company, at any time on
or prior to [ ], 2000 subject to the conditions and at a Redemption Price of
___% of the aggregate principal amount thereof, together with accrued and unpaid
interest to the Redemption Date, with the Net Cash Proceeds of (a) one or more
Public Equity Offerings of Common Stock of the Company (other than the Equity
Offerings) or (b) a sale or series of related sales by the Company of its Common
Stock to one or more Strategic Equity Investors resulting in gross proceeds of
not less than $65.0 million (other than the Transactions and other than in
connection with a Change of Control); provided that at least 65% of the
originally issued principal amount of Notes remains Outstanding immediately
after giving effect to such redemption.
36
Upon the occurrence of a Change in Control, the Holder of this
Note may require the Company, subject to certain limitations provided in the
Indenture, to repurchase this Note at a purchase price in cash in an amount
equal to 101% of the principal amount thereof plus accrued and unpaid interest.
In the case of any redemption of Notes, interest installments
whose Stated Maturity is on or prior to the Redemption Date will be payable to
the Holders of such Notes, or one or more Predecessor Notes, of record at the
close of business on the relevant Regular Record Date referred to on the face
hereof. Notes (or portions thereof) for whose redemption and payment provision
is made in accordance with the Indenture shall cease to bear interest from and
after the Redemption Date.
In the event of redemption of this Note in part only, a new
Note or Notes for the unredeemed portion hereof shall be issued in the name of
the Holder hereof upon the cancellation hereof.
If an Event of Default shall occur and be continuing, the
principal of all the Notes and any accrued and unpaid interest thereon may be
declared due and payable in the manner and with the effect provided in the
Indenture.
The Indenture contains provisions for defeasance at any time
of (a) the entire indebtedness of the Company on this Note and (b) certain
restrictive covenants and the related Defaults and Events of Default, upon
compliance by the Company with certain conditions set forth therein, which
provisions apply to this Note.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Company and the rights of the Holders under the Indenture at
any time by the Company and the Trustee with the consent of the Holders of a
majority in aggregate principal amount of the Notes at the time Outstanding. The
Indenture also contains provisions permitting the Holders of specified
percentages in aggregate principal amount of the Notes at the time Outstanding,
on behalf of the Holders of all the Notes, to waive compliance by the Company
with certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by or on behalf of
the Holder of this Note shall be conclusive and binding upon such Holder and
upon all future Holders of this Note and of any Note issued upon the
registration of transfer hereof or in exchange herefor or in lieu hereof whether
or not notation of such consent or waiver is made upon this Note.
No reference herein to the Indenture and no provision of this
Note or of the Indenture shall alter or impair the obligation of the Company,
which is absolute and unconditional, to pay the principal of (and premium, if
any) and interest on this Note at the times, place, and rate, and in the coin or
currency, herein prescribed.
37
As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of this Note is registerable on the
Note Register of the Company, upon surrender of this Note for registration of
transfer at the office or agency of the Company maintained for such purpose in
The City of New York, duly endorsed by, or accompanied by a written instrument
of transfer in form satisfactory to the Company and the Note Registrar duly
executed by, the Holder hereof or his attorney duly authorized in writing, and
thereupon one or more new Notes, of authorized denominations and for the same
aggregate principal amount, will be issued to the designated transferee or
transferees.
The Notes are issuable only in registered form without coupons
in denominations of $1,000 and any integral multiple thereof. As provided in the
Indenture and subject to certain limitations therein set forth, the Notes are
exchangeable for a like aggregate principal amount of Notes of a different
authorized denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any registration of
transfer or exchange of Notes, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith.
Prior to the time of due presentment of this Note for
registration of transfer, the Company, the Trustee and any agent of the Company
or the Trustee may treat the Person in whose name this Note is registered as the
owner hereof for all purposes, whether or not this Note be overdue, and neither
the Company, the Trustee nor any agent shall be affected by notice to the
contrary.
All terms used in this Note that are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
No recourse for the payment of the principal of, or premium,
if any, or interest on, any of the Notes or for any claim based thereon or
otherwise in respect thereof, and no recourse under or upon any obligation,
covenant or agreement of the Company in the Indenture or in any of the Notes, or
because of the creation of any Debt represented thereby, shall be had against
any incorporator, shareholder, officer, director, employee or controlling person
of the Company, any Subsidiary of the Company or of any successor Person
thereof. Each Holder of Notes by accepting a Note waives and releases all such
liability, and such waiver and release is part of the consideration for the
issuance of the Notes.
The Indenture and this Note shall be governed by, and
construed in accordance with, the internal laws of the State of New York
(without giving effect to the conflict of laws principles thereof). The Trustee,
the Company, and (by their acceptance of the Notes) the Holders agree to submit
to the non-exclusive jurisdiction of any United States federal or state
38
court located in the Borough of Manhattan, in the City of New York, in any
action or proceeding arising out of or relating to the Indenture of this Note.
39
ASSIGNMENT FORM
If you the holder want to assign this Note, fill in the form below and have your
signature guaranteed:
I or we assign and transfer this Note to
--------------------------------------------------------------------------------
(Insert assignee's social security or tax ID number)
---------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code) and irrevocably appoint
--------------------------------------------------------------------------------
agent to transfer this Note on the books of the Company.
The agent may substitute another to act for such agent.
Date: Your signature:
------------------- ----------------------
(Sign exactly as your
name appears on the
other side of this
Note)
By:
-------------------
NOTICE: To be
executed by an
executive officer
NOTICE: Signature(s) must be guaranteed by an institution that is a
participant in the Securities Transfer Agent Medallion Program ("STAMP") or
similar program.
40
SECTION 204. Form of Trustee's Certificate of Authentication.
The Trustee's certificate of authentication shall be in
substantially the following form:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
Dated: ____________________
This is one of the Notes referred to in the within-mentioned
Indenture.
FIRST UNION NATIONAL BANK,
as Trustee
By
------------------------------
Authorized Officer
ARTICLE THREE
THE NOTES
SECTION 301. Title and Terms.
The aggregate principal amount of Notes that may be
authenticated and delivered under this Indenture is limited to $250,000,000,
except for Notes authenticated and delivered upon registration of transfer of,
or in exchange for, or in lieu of, other Notes pursuant to Section 303, 304,
305, 306, 906, 1009, 1016 or 1108.
The Notes shall be known and designated as the "_____% Senior
Notes due 2007" of the Company. Their Stated Maturity shall be [ ], 2007, and
they shall bear interest at the rate of _____% per annum from [ ], 2007, or from
the most recent Interest Payment Date to which interest has been paid or duly
provided for, payable on [ ], 1998 and semi-annually thereafter on
[ ] and [ ] in each year and at said Stated Maturity until the principal
thereof is paid or duly provided for.
The principal of (and premium, if any) and interest on the
Notes shall be payable at the office or agency of the Company maintained for
such purpose in The City of New York, or at such other office or agency of the
Company as may be maintained for such purpose; provided, however, that, at the
option of the Company, interest may be paid (i) by check mailed to addresses of
the Persons entitled thereto as such addresses shall appear on
41
the Note Register or (ii) by transfer to an account maintained by the payee
located in the United States.
The Notes shall be redeemable as provided in Article Eleven.
SECTION 302. Denominations.
The Notes shall be issuable only in registered form without
coupons and only in denominations of $1,000 and any integral multiple thereof.
SECTION 303. Execution, Authentication, Delivery and Dating.
The Notes shall be executed on behalf of the Company by its
Chairman, its President or a Vice President and attested by its Secretary or an
Assistant Secretary. The signature of any of these officers on the Notes may be
manual or facsimile signatures of the present or any future such authorized
officer and may be imprinted or otherwise reproduced on the Notes.
Notes bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall bind
the Company, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Notes or did
not hold such offices at the date of such Notes.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Notes executed by the
Company to the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Notes, and the Trustee in accordance with
such Company Order shall authenticate and deliver such Notes.
Each Note shall be dated the date of its authentication.
No Note shall be entitled to any benefit under this Indenture
or be valid or obligatory for any purpose unless there appears on such Note a
certificate of authentication substantially in the form provided for herein duly
executed by the Trustee by manual signature of an authorized officer, and such
certificate upon any Note shall be conclusive evidence, and the only evidence,
that such Note has been duly authenticated and delivered hereunder and is
entitled to the benefits of this Indenture.
In case the Company, pursuant to Article Eight, shall be
consolidated or merged with or into any other Person or shall convey, transfer,
lease or otherwise dispose of its properties and assets substantially as an
entirety to any Person, and the successor Person resulting from such
consolidation, or surviving such merger, or into which the Company
42
shall have been merged, or the Person that shall have received a conveyance,
transfer, lease or other disposition as aforesaid, shall have executed an
indenture supplemental hereto with the Trustee pursuant to Article Eight, any of
the Notes authenticated or delivered prior to such consolidation, merger,
conveyance, transfer, lease or other disposition may, from time to time, at the
request of the successor Person, be exchanged for other Notes executed in the
name of the successor Person with such changes in phraseology and form as may be
appropriate, but otherwise in substance of like tenor as the Notes surrendered
for such exchange and of like principal amount; and the Trustee, upon Company
Request of the successor Person, shall authenticate and deliver Notes as
specified in such request for the purpose of such exchange. If Notes shall at
any time be authenticated and delivered in any new name of a successor Person
pursuant to this Section in exchange or substitution for or upon registration of
transfer of any Notes, such successor Person, at the option of the Holders but
without expense to them, shall provide for the exchange of all Outstanding Notes
for Notes authenticated and delivered in such new name.
SECTION 304. Temporary Notes.
Pending the preparation of definitive Notes, the Company may
execute, and upon Company Order the Trustee shall authenticate and deliver,
temporary Notes that are printed, lithographed, typewritten, mimeographed or
otherwise produced, in any authorized denomination, substantially of the tenor
of the definitive Notes in lieu of which they are issued and with such
appropriate insertions, omissions, substitutions and other variations as the
officers executing such Notes may determine, as conclusively evidenced by their
execution of such Notes.
If temporary Notes are issued, the Company will cause
definitive Notes to be prepared without unreasonable delay. After the
preparation of definitive Notes, the temporary Notes shall be exchangeable for
definitive Notes upon surrender of the temporary Notes at the office or agency
of the Company designated for such purpose pursuant to Section 1002, without
charge to the Holder. Upon surrender for cancellation of any one or more
temporary Notes, the Company shall execute and the Trustee shall authenticate
and deliver in exchange therefor a like principal amount of definitive Notes of
authorized denominations. Until so exchanged, the temporary Notes shall in all
respects be entitled to the same benefits under this Indenture as definitive
Notes.
SECTION 305. Registration, Registration of Transfer and
Exchange.
The Company shall cause to be kept at the Corporate Trust
Office of the Trustee a register (the register maintained in such office and in
any other office or agency designated pursuant to Section 1002 being herein
sometimes referred to as the "Note Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration of Notes and of transfers of Notes. The Note Register shall
43
be in written form or any other form capable of being converted into written
form within a reasonable time. At all reasonable times, the Note Register shall
be open to inspection by the Trustee. The Trustee is hereby initially appointed
as security registrar (the "Note Registrar") for the purpose of registering
Notes and transfers of Notes as herein provided.
Upon surrender for registration of transfer of any Note at the
office or agency of the Company designated pursuant to Section 1002, the Company
shall execute, and the Trustee shall authenticate and deliver, in the name of
the designated transferee or transferees, one or more new Notes of any
authorized denomination or denominations of a like aggregate principal amount.
At the option of the Holder, Notes may be exchanged for other
Notes of any authorized denomination and of a like aggregate principal amount,
upon surrender of the Notes to be exchanged at such office or agency. Whenever
any Notes are so surrendered for exchange, the Company shall execute, and the
Trustee shall authenticate and deliver, the Notes that the Holder making the
exchange is entitled to receive.
All Notes issued upon any registration of transfer or exchange
of Notes shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Notes
surrendered upon such registration of transfer or exchange.
Every Note presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company or the Note
Registrar) be duly endorsed, or be accompanied by a written instrument of
transfer, in the form attached to the Note or otherwise satisfactory to the
Company and the Note Registrar, duly executed by the Holder thereof or his
attorney duly authorized in writing.
No service charge shall be made for any registration of
transfer or exchange or redemption of Notes, but the Company may require payment
of a sum sufficient to cover any tax or other governmental charge that may be
imposed in connection with any registration of transfer or exchange of Notes,
other than exchanges pursuant to Section 304, 906, 1009, 1016 or 1108 not
involving any transfer.
The Company shall not be required (i) to issue, register the
transfer of or exchange any Note during a period beginning at the opening of
business 15 days before the selection of Notes to be redeemed under Section 1104
and ending at the close of business on the day of such mailing of the relevant
notice of redemption, (ii) to register the transfer of or exchange any Note so
selected for redemption in whole or in part, except the unredeemed portion of
any Note being redeemed in part or (iii) to issue, register, transfer or
exchange any Note during a Change of Control Offer or an Asset Sale Offer, if
such Note is tendered pursuant to such Change of Control Offer or Asset Sale
Offer and not withdrawn.
44
SECTION 306. Mutilated, Destroyed, Lost and Stolen Notes.
If (i) any mutilated Note is surrendered to the Trustee, or
(ii) the Company and the Trustee receive evidence to their satisfaction of the
destruction, loss or theft of any Note, and there is delivered to the Company
and the Trustee such security or indemnity as may be required by them to save
each of them harmless, then, in the absence of notice to the Company or the
Trustee that such Note has been acquired by a bona fide purchaser, the Company
shall execute and upon Company Order the Trustee shall authenticate and deliver,
in exchange for any such mutilated Note or in lieu of any such destroyed, lost
or stolen Note, a replacement Note of like tenor and principal amount, bearing a
number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Note has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a replacement Note, pay such Note.
Upon the issuance of any replacement Note under this Section,
the Company may require the payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every replacement Note issued pursuant to this Section in lieu
of any mutilated, destroyed, lost or stolen Note shall constitute an original
additional contractual obligation of the Company, whether or not the mutilated,
destroyed, lost or stolen Note shall be at any time enforceable by anyone, and
shall be entitled to all benefits of this Indenture equally and proportionately
with any and all other Notes duly issued hereunder.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Notes.
SECTION 307. Payment of Interest; Interest Rights Preserved.
Interest on any Note that is payable, and is punctually paid
or duly provided for, on any Interest Payment Date shall be paid to the Person
in whose name such Note (or one or more Predecessor Notes) is registered at the
close of business on the Regular Record Date for such interest at the office or
agency of the Company maintained for such purpose pursuant to Section 1002;
provided, however, that each installment of interest may at the Company's option
be paid by (i) mailing a check for such interest, payable to or upon the written
order of the Person entitled thereto pursuant to Section 308, to the address of
such Person as it appears in the Note Register or (ii) transfer to an account
located in the United States maintained by the payee.
45
Any interest on any Note that is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date shall
forthwith cease to be payable to the Holder on the Regular Record Date by virtue
of having been such Holder, and such defaulted interest and (to the extent
lawful) interest on such defaulted interest at the rate borne by the Notes (such
defaulted interest and interest thereon herein collectively called "Defaulted
Interest") may be paid by the Company, at its election in each case, as provided
in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Notes (or their respective
Predecessor Notes) are registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest, which shall be
fixed in the following manner. The Company shall notify the Trustee in
writing of the amount of Defaulted Interest proposed to be paid on each
Note and the date of the proposed payment, and at the same time the
Company shall deposit with the Trustee an amount of money equal to the
aggregate amount proposed to be paid in respect of such Defaulted
Interest or shall make arrangements reasonably satisfactory to the
Trustee for such deposit prior to the date of the proposed payment,
such money when deposited to be held in trust for the benefit of the
Persons entitled to such Defaulted Interest as in this clause (1)
provided. Thereupon the Trustee shall fix a Special Record Date for the
payment of such Defaulted Interest which shall be not more than 15 days
and not less than 10 days prior to the date of the proposed payment and
not less than 10 days after the receipt by the Trustee of the notice of
the proposed payment. The Trustee shall promptly notify the Company of
such Special Record Date, and in the name and at the expense of the
Company, shall cause notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor to be given in the manner
provided for in Section 106, not less than 10 days prior to such
Special Record Date. Notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor having been so given,
such Defaulted Interest shall be paid to the Persons in whose names the
Notes (or their respective Predecessor Notes) are registered at the
close of business on such Special Record Date and shall no longer be
payable pursuant to the following clause (2).
(2) The Company may make payment of any Defaulted Interest in
any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Notes may be listed, and upon such
notice as may be required by such exchange, if, after notice given by
the Company to the Trustee of the proposed payment pursuant to this
clause, such manner of payment shall be deemed practicable by the
Trustee.
Subject to the foregoing provisions of this Section, each Note
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Note
46
shall carry the rights to interest accrued and unpaid, and to accrue, that were
carried by such other Note.
SECTION 308. Persons Deemed Owners.
Prior to and at the time of the due presentment of a Note for
registration of transfer, the Company, the Trustee and any agent of the Company
or the Trustee may treat the Person in whose name such Note is registered as the
owner of such Note for the purpose of receiving payment of principal of (and
premium, if any) and (subject to Sections 305 and 307) interest on such Note and
for all other purposes whatsoever, whether or not such Note be overdue, and none
of the Company, the Trustee or any agent of the Company or the Trustee shall be
affected by notice to the contrary.
SECTION 309. Cancellation.
All Notes surrendered for payment, redemption, registration of
transfer or exchange shall, if surrendered to any Person other than the Trustee,
be delivered to the Trustee and shall be promptly cancelled by it. The Company
may at any time deliver to the Trustee for cancellation any Notes previously
authenticated and delivered hereunder that the Company may have acquired in any
manner whatsoever, and may deliver to the Trustee (or to any other Person for
delivery to the Trustee) for cancellation any Notes previously authenticated
hereunder that the Company has not issued and sold, and all Notes so delivered
shall be promptly cancelled by the Trustee. No Notes shall be authenticated in
lieu of or in exchange for any Notes cancelled as provided in this Section,
except as expressly permitted by this Indenture. All cancelled Notes held by the
Trustee shall be disposed of by the Trustee in accordance with its customary
procedures and certification of their disposal delivered to the Company unless
by Company Order the Company shall direct that cancelled Notes be returned to
it. The Trustee shall provide the Company with a list of all Notes that have
been cancelled from time to time as requested by the Company.
SECTION 310. Computation of Interest.
Interest on the Notes shall be computed on the basis of a
360-day year of twelve 30-day months.
47
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of
further effect (except as to surviving rights of registration of transfer or
exchange of Notes expressly provided for herein or pursuant hereto) and the
Trustee, on demand of and at the expense of the Company, shall execute proper
instruments acknowledging satisfaction and discharge of this Indenture when
(1) either
(a) all Notes theretofore authenticated and delivered
(other than (i) Notes that have been destroyed, lost or stolen
and that have been replaced or paid as provided in Section 306
and (ii) Notes for whose payment money has theretofore been
deposited in trust with the Trustee or any Paying Agent or
segregated and held in trust by the Company and thereafter
repaid to the Company or discharged from such trust, as
provided in Section 1003) have been delivered to the Trustee
for cancellation; or
(b) all such Notes not theretofore delivered to the
Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their
Stated Maturity within one year, or
(iii) are to be called for redemption within
one year under arrangements satisfactory to the
Trustee for the giving of notice of redemption by the
Trustee in the name, and at the expense, of the
Company,
and the Company, in the case of (i), (ii) or (iii) above, has
irrevocably deposited or caused to be deposited with the
Trustee as trust funds in trust for such purpose an amount
sufficient to pay and discharge the entire indebtedness on
such Notes not theretofore delivered to the Trustee for
cancellation, for principal (and premium, if any) and interest
to the date of such deposit (in the case of Notes that have
become due and payable) or to the Stated Maturity or
Redemption Date, as the case may be;
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(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and
discharge of this Indenture have been complied with. (Such Opinion of
Counsel may, as to all matters of fact, rely on, among other things,
such Officers' Certificate).
Notwithstanding the satisfaction and discharge of this
Indenture, the obligations of the Company to the Trustee under Section 608 and,
if money shall have been deposited with the Trustee pursuant to subclause (b) of
clause (1) of this Section, the obligations of the Trustee under Section 402 and
the last paragraph of Section 1003 shall survive.
SECTION 402. Application of Trust Money.
Subject to the provisions of the last paragraph of Section
1003, all money deposited with the Trustee pursuant to Section 401 shall be held
in trust and applied by it, in accordance with the provisions of the Notes and
this Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium, if
any) and interest for whose payment such money has been deposited with the
Trustee; but such money need not be segregated from other funds except to the
extent required by law.
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default.
"Event of Default", wherever used herein, means any one of the
following events (whatever the reason for such Event of Default and whether it
shall be voluntary or involuntary or be effected by operation of law or pursuant
to any judgment, decree or order of any court or any order, rule or regulation
of any administrative or governmental body):
(a) default in the payment of any installment of interest in a
timely manner on the Notes through [ ], 2000, with no grace or
cure period, and thereafter the continuance of such default for a
period of 30 days;
49
(b) default in the payment of the principal of (or premium, if
any, on) any Note at its Stated Maturity, upon repurchase,
acceleration, optional redemption, required repurchase (including
pursuant to a Change of Control Offer or an Asset Sale Offer) or
otherwise, or the failure to make an offer to purchase as therein
required;
(c) failure by the Company to perform or comply with the
provisions of Article Eight of this Indenture;
(d) default in the performance, or breach, of any covenant or
warranty of the Company under this Indenture (other than a covenant or
warranty a default in whose performance or whose breach is specifically
dealt with in (a), (b) or (c) above) and continuance of such default or
breach for a period of 60 days after specified written notice thereof
has been given to the Company by the Trustee or to the Company and the
Trustee by the Holders of at least 25% of the aggregate principal
amount of the Outstanding Notes;
(e) (A) there shall have occurred one or more defaults by the
Company or any Restricted Subsidiary in the payment of the principal of
(or premium, if any, on) Debt aggregating $15.0 million or more, when
the same becomes due and payable at the stated maturity thereof, and
such default or defaults shall have continued after any applicable
grace period and shall not have been cured or waived or (B) Debt of the
Company or any Restricted Subsidiary aggregating $15.0 million or more
shall have been accelerated in accordance with its terms or otherwise
declared due and payable prior to the stated maturity thereof;
(f) the entry by a court of competent jurisdiction of one or
more judgments or orders against the Company or any Restricted
Subsidiary of the Company in an uninsured or unindemnified aggregate
amount in excess of $15.0 million, which remains undischarged,
unwaived, unstayed, unbonded or unsatisfied for a period of 60
consecutive days;
(g) the entry by a court having jurisdiction in the premises
of (i) a decree or order for relief in respect of the Company, or any
Significant Restricted Subsidiary of the Company in an involuntary case
or proceeding under U.S. bankruptcy laws, as now or hereafter
constituted, or any other applicable federal, state, or foreign
bankruptcy, insolvency, or other similar law or (ii) a decree or order
adjudging the Company or any Significant Restricted Subsidiary of the
Company a bankrupt or insolvent, or approving as properly filed a
petition seeking reorganization, arrangement, adjustment or composition
of or in respect of the Company, or any Significant Restricted
Subsidiary of the Company under U.S. bankruptcy laws, as now or
hereafter constituted, or any other applicable federal, state, or
foreign bankruptcy, insolvency, or similar law, or appointing a
custodian, receiver, liquidator, assignee,
50
trustee, sequestrator or other similar official of the Company or any
Significant Restricted Subsidiary of the Company or of any substantial
part of the property or assets of the Company or any Significant
Restricted Subsidiary of the Company or ordering the winding up or
liquidation of the affairs of the Company or any Significant Restricted
Subsidiary of the Company, and the continuance of any such decree or
order for relief or any such other decree or order unstayed and in
effect for a period of 60 consecutive days;
(h) (i) the commencement by the Company or any Significant
Restricted Subsidiary of the Company of a voluntary case or proceeding
under U.S. bankruptcy laws, as now or hereafter constituted, or any
other applicable federal, state, or foreign bankruptcy, insolvency or
other similar law or of any other case or proceeding to be adjudicated
a bankrupt or insolvent, or (ii) the consent by the Company or any
Significant Restricted Subsidiary of the Company to the entry of a
decree or order for relief in respect of the Company or any Significant
Restricted Subsidiary of the Company in an involuntary case or
proceeding under U.S. bankruptcy laws, as now or hereafter constituted,
or any other applicable federal, state or foreign bankruptcy,
insolvency, or other similar law or to the commencement of any
bankruptcy or insolvency case or proceeding against the Company or any
Significant Restricted Subsidiary of the Company, or (iii) the filing
by the Company or any Significant Restricted Subsidiary of the Company
of a petition or answer or consent seeking reorganization or relief
under U.S. bankruptcy laws, as now or hereafter constituted, or any
other applicable federal, state, or foreign bankruptcy, insolvency or
other similar law, or (iv) the consent by the Company or any
Significant Restricted Subsidiary of the Company to the filing of such
petition or to the appointment of or taking possession by a custodian,
receiver, liquidator, assignee, trustee, sequestrator or similar
official of the Company or any Significant Restricted Subsidiary of the
Company or of any substantial part of the property or assets of the
Company or any Significant Restricted Subsidiary of the Company, or the
making by the Company or any Significant Restricted Subsidiary of the
Company of an assignment for the benefit of creditors, or (v) the
admission by the Company or any Significant Restricted Subsidiary of
the Company in writing of its inability to pay its debts generally as
they become due, or (vi) the taking of corporate action by the Company
or any Significant Restricted Subsidiary of the Company in furtherance
of any such action; or
(i) the Pledge Agreement shall have ceased to be in full force
and effect or enforceable with its terms, other than in accordance with
its terms.
SECTION 502. Acceleration of Maturity; Rescission and
Annulment.
If an Event of Default (other than an Event of Default
specified in Section 501(g) or 501(h)) occurs and is continuing, then and in
every such case the Trustee
51
or the Holders of not less than 25% in principal amount of the Outstanding Notes
may declare the principal amount of all the Outstanding Notes and any accrued
and unpaid interest on all such Notes to be due and payable immediately, by a
notice in writing to the Company (and to the Trustee if given by Holders), and
upon any such declaration such principal amount and any accrued and unpaid
interest on all such Notes shall become immediately due and payable. If an Event
of Default specified in Section 501(g) or 501(h) occurs and is continuing, then
the principal amount of all the Notes shall ipso facto become and be immediately
due and payable without any declaration or other act on the part of the Trustee
or any Holder.
At any time after a declaration of acceleration has been made
and before a judgment or decree for payment of the money due has been obtained
by the Trustee as hereinafter provided in this Article, the Holders of a
majority in principal amount of the Notes Outstanding, by written notice to the
Company and the Trustee, may rescind and annul such declaration and its
consequences if
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay,
(A) all overdue interest on all Outstanding Notes,
(B) all unpaid principal of (and premium, if any, on)
any Outstanding Notes that has become due otherwise than by
such declaration of acceleration, and interest on such unpaid
principal at the rate borne by the Notes,
(C) to the extent that payment of such interest is
lawful, interest on overdue interest at the rate borne by
the Notes, and
(D) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and
counsel; and
(2) all Events of Default, other than the non-payment of
amounts of principal of (or premium, if any, on) or interest on Notes
that have become due solely by such declaration of acceleration, have
been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
52
SECTION 503. Collection of Debt and Suits for Enforcement by
Trustee.
The Company covenants that if an Event of Default specified in
Section 501(a) or (b) occurs, the Company will, upon demand of the Trustee, pay
to the Trustee for the benefit of the Holders of such Notes, the whole amount
then due and payable on such Notes for principal (and premium, if any) and
interest, and interest on any overdue principal (and premium, if any) and, to
the extent that payment of such interest shall be legally enforceable, upon any
overdue installment of interest, at the rate borne by the Notes, and, in
addition thereto, 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.
If the Company fails to pay such amounts forthwith upon such
demand, the Trustee, in its own name as trustee of an express trust, may
institute a judicial proceeding for the collection of the sums so due and
unpaid, may prosecute such proceeding to judgment or final decree and may
enforce the same against the Company or any other obligor upon the Notes and
collect the moneys adjudged or decreed to be payable in the manner provided by
law out of the property of the Company or any other obligor upon the Notes,
wherever situated.
If an Event of Default occurs and is continuing, the Trustee
may in its discretion proceed to protect and enforce its rights and the rights
of the Holders by such appropriate judicial proceedings as the Trustee shall
deem most effectual to protect and enforce any such rights, whether for the
specific enforcement of any covenant or agreement in this Indenture or in aid of
the exercise of any power granted herein, or to enforce any other proper remedy.
SECTION 504. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or
other similar judicial proceeding relative to the Company or any other obligor
upon the Notes or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of the Notes shall
then be due and payable as therein expressed or by declaration or otherwise and
irrespective of whether the Trustee shall have made any demand on the Company
for the payment of overdue principal, premium, if any, or interest) shall be
entitled and empowered, by intervention in such proceeding or otherwise,
(i) to file and prove a claim for the whole amount of
principal (and premium, if any) and interest owing and unpaid in
respect of the Notes and to file such 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,
53
disbursements and advances of the Trustee, its agents and counsel) and
of the Holders allowed in such judicial proceeding, and
(ii) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
similar official in any such judicial proceeding is hereby authorized by each
Holder to make such payments to the Trustee and, in the event that the Trustee
shall consent to the making of such payments directly to the Holders, to pay the
Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 608.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or composition affecting the
Notes or the rights of any Holder thereof, or to authorize the Trustee to vote
in respect of the claim of any Holder in any such proceeding.
SECTION 505. Trustee May Enforce Claims Without Possession of
Notes.
All rights of action and claims under this Indenture or the
Notes may be prosecuted and enforced by the Trustee without the possession of
any of the Notes or the production thereof in any proceeding relating thereto,
and any such proceeding instituted by the Trustee shall be brought in its own
name and as trustee of an express trust, and any recovery of judgment shall,
after provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Notes in respect of which such judgment
has been recovered.
SECTION 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article
shall be applied in the following order, at the date or dates fixed by the
Trustee and, in case of the distribution of such money on account of principal
(or premium, if any) or interest, upon presentation of the Notes and the
notation thereon of the payment if only partially paid and upon surrender
thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under
Section 608;
SECOND: To the payment of the amounts then due and unpaid for
principal of (and premium, if any) and interest on the Notes in respect
of which or for the
54
benefit of which such money has been collected, ratably, without
preference or priority of any kind, according to the amounts due and
payable on such Notes for principal (and premium, if any) and interest,
respectively; and
THIRD: The balance, if any, to the Company.
SECTION 507. Limitation on Suits.
No Holder of any Notes shall have any right to institute any
proceeding, judicial or otherwise, with respect to this Indenture, or for the
appointment of a receiver or trustee, or for any other remedy hereunder, unless
(1) such Holder has previously given written notice to the
Trustee of a continuing Event of Default;
(2) the Holders of not less than 25% in principal amount of
the Outstanding Notes shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default in its own
name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the Holders of a
majority or more in principal amount of the Outstanding Notes;
it being understood and intended that no one or more Holders shall have any
right in any manner whatever by virtue of, or by availing of, any provision of
this Indenture to affect, disturb or prejudice the rights of any other Holders,
or to obtain or to seek to obtain priority or preference over any other Holders
or to enforce any right under this Indenture, except in the manner herein
provided and for the equal and ratable benefit of all the Holders.
SECTION 508. Unconditional Right of Holders to Receive
Principal, Premium and Interest.
Notwithstanding any other provision in this Indenture, the
Holder of any Note shall have the right, which is absolute and unconditional, to
receive payment, as provided
55
herein (including, if applicable, Article Thirteen) and in such Note of the
principal of (and premium, if any) and (subject to Section 307) interest on such
Note on the respective Stated Maturities expressed in such Note (or, in the case
of redemption, on the Redemption Date) and to institute suit for the enforcement
of any such payment, and such rights shall not be impaired without the consent
of such Holder.
SECTION 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders shall
be restored severally and respectively to their former positions hereunder and
thereafter all rights and remedies of the Trustee and the Holders shall continue
as though no such proceeding had been instituted.
SECTION 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Notes in the last paragraph
of Section 306, no right or remedy herein conferred upon or reserved to the
Trustee or to the Holders is intended to be exclusive of any other right or
remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other appropriate right or remedy.
SECTION 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any
Note to exercise any right or remedy accruing upon any Event of Default shall
impair any such right or remedy or constitute a waiver of any such Event of
Default or an acquiescence therein. Every right and remedy given by this Article
or by law to the Trustee or to the Holders may be exercised from time to time,
and as often as may be deemed expedient, by the Trustee or by the Holders, as
the case may be.
SECTION 512. Control by Holders.
The Holders of not less than a majority in principal amount of
the Outstanding Notes shall have the right to direct the time, method and place
of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee, provided that
56
(1) such direction shall not be in conflict with any rule of
law or with this Indenture or any Note,
(2) the Trustee may take any other action deemed proper by the
Trustee that is not inconsistent with such direction, and
(3) the Trustee need not take any action that might involve it
in personal liability or be unjustly prejudicial to the Holders not
consenting.
SECTION 513. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of
the Outstanding Notes may on behalf of the Holders of all the Notes waive
(including by way of consents obtained with a purchase of, or a tender or
exchange offer for, Notes) any past default hereunder and its consequences,
except a default
(1) in respect of the payment of the principal of (or premium,
if any) or interest on any Note, or
(2) in respect of a covenant or provision hereof that under
Article Nine cannot be modified or amended without the consent of the
Holder of each Outstanding Note affected.
Upon any such waiver, such default shall cease to exist, and
any Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or Event of Default or impair any right consequent
thereon.
SECTION 514. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do
so) that it will not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay or extension law
wherever enacted, now or at any time hereafter in force, that may affect the
covenants or the performance of this Indenture; and the Company (to the extent
that it may lawfully do so) hereby expressly waives all benefit or advantage of
any such law and covenants that it will not hinder, delay or impede the
execution of any power herein granted to the Trustee, but will suffer and permit
the execution of every such power as though no such law had been enacted.
57
SECTION 515. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any
Note by such Holder's acceptance thereof shall be deemed to have agreed, that
any court may in its discretion require in any suit for the enforcement of any
right or remedy under this Indenture or the Notes, or in any suit against the
Trustee for any action taken, suffered or omitted by it as Trustee, the filing
by any party litigant in such suit of an undertaking to pay the costs of such
suit, and that such court may in its discretion assess reasonable costs,
including reasonable attorneys' fees, against any party litigant in such suit,
having due regard to the merits and good faith of the claims or defenses made by
such party litigant; but the provisions of this Section 515 shall not apply to
any suit instituted by the Trustee, to any suit instituted by any Holder, or
group of Holders, holding in the aggregate more than 10% in principal amount of
the Outstanding Notes or to any suit instituted by any Holder for the
enforcement of the payment of the principal of, premium, if any, or interest on
any Note on or after the respective Stated Maturity expressed in such Note.
ARTICLE SIX
THE TRUSTEE
SECTION 601. Notice of Defaults.
Within 90 days after the occurrence of any Default hereunder,
the Trustee shall transmit in the manner and to the extent provided in TIA
Section 313(c), notice of such Default hereunder known to the Trustee, unless
such Default shall have been cured or waived; provided, however, that, except in
the case of a Default in the payment of the principal of (or premium, if any) or
interest on any Note, the Trustee shall be protected in withholding such notice
if and so long as the board of directors, the executive committee or a trust
committee of directors and/or Responsible Officers of the Trustee in good faith
determines that the withholding of such notice is in the interest of the
Holders; and provided further that in the case of any Default of the character
specified in Section 501(d) no such notice to Holders shall be given until at
least 60 days after the occurrence thereof.
SECTION 602. Trustee's Duties Following Event of Default.
In case an Event of Default shall occur (that has not been
cured), the Trustee shall be required to 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.
58
SECTION 603. Certain Rights of Trustee.
Subject to the provisions of TIA Sections 315(a) through
315(d):
(1) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of indebtedness or other
paper or document reasonably believed by it to be genuine and to have
been signed or presented by the proper party or parties;
(2) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order
and any resolution of the Board of Directors may be sufficiently
evidenced by a Board Resolution;
(3) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, the
Trustee (unless other evidence be herein specifically prescribed) may,
in the absence of bad faith on its part, rely upon an Officers'
Certificate;
(4) the Trustee may consult with counsel and the written
advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance
thereon;
(5) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request
or direction of any of the Holders pursuant to this Indenture, unless
such Holders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities that might be
incurred by it in compliance with such request or direction;
(6) 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;
(7) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or attorney
(other than an agent or attorney who is an employee of the Trustee)
appointed with due care by it hereunder; and
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(8) the Trustee shall not be liable for any action taken,
suffered or omitted by it in good faith and believed by it to be
authorized or within the discretion or rights or powers conferred upon
it by this Indenture; provided that no provision of this Indenture
shall be construed to relieve the Trustee from liability for its own
negligent action, its own negligent failure to act, or its own willful
misconduct.
The Trustee shall not be required to expend or risk its own
funds or otherwise incur any financial liability in the performance of any of
its duties hereunder, or in the exercise of any of its rights or powers if it
shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured to
it.
SECTION 604. Trustee Not Responsible for Recitals or Issuance
of Notes.
The recitals contained herein and in the Notes, except for the
Trustees certificates of authentication, shall be taken as the statements of the
Company, and the Trustee assumes no responsibility for their correctness. The
Trustee makes no representations as to the validity or sufficiency of this
Indenture or of the Notes, except that the Trustee represents that it is duly
authorized to execute and deliver this Indenture, authenticate the Notes and
perform its obligations hereunder and that the statements made by it in a
Statement of Eligibility and Qualification on Form T-1 supplied to the Company
are true and accurate, subject to the qualifications set forth therein. The
Trustee shall not be accountable for the use or application by the Company of
Notes or the proceeds thereof.
SECTION 605. Extension of Credit to Company.
The Trustee from time to time may extend credit to the Company
in the ordinary course of business.
SECTION 606. May Hold Notes.
The Trustee, any Paying Agent, any Note Registrar or any other
agent of the Company or of the Trustee, in its individual or any other capacity,
may become the owner or pledgee of Notes and, subject to TIA Sections 310(b) and
311, may otherwise deal with the Company with the same rights it would have if
it were not Trustee, Paying Agent, Note Registrar or such other agent.
SECTION 607. Money Held in Trust.
Money held by the Trustee in trust hereunder shall, until used
or applied as herein provided, be held in trust for the purposes for which it
was received, but need not be segregated from other funds except to the extent
required by law. The Trustee shall be
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under no liability for interest on any money received by it hereunder except as
otherwise agreed with the Company.
SECTION 608. Compensation and Reimbursement.
The Company agrees:
(1) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the
reasonable compensation and the expenses and disbursements of its
agents and counsel), except any such expense, disbursement or advance
as may arise from or be attributable to its negligence or bad faith;
and
(3) to indemnify the Trustee for, and to hold it harmless
against, any loss, liability or expense incurred without negligence or
bad faith on its part, arising out of or in connection with the
acceptance or administration of this trust, including the costs and
expenses of defending itself against any claim or liability in
connection with the exercise or performance of any of its powers or
duties hereunder.
The Trustee shall notify the Company promptly of any claim
asserted against the Trustee for which it may seek indemnity. The obligations of
the Company under this Section to compensate the Trustee, to pay or reimburse
the Trustee for expenses, disbursements and advances and to indemnify and hold
harmless the Trustee shall constitute additional indebtedness hereunder and
shall survive the satisfaction and discharge of this Indenture. As security for
the performance of such obligations of the Company, the Trustee shall have a
claim prior to the Notes upon all property and funds held or collected by the
Trustee as such, except funds held in trust for the payment of principal of (and
premium, if any) or interest on particular Notes.
When the Trustee incurs expenses or renders services in
connection with an Event of Default specified in Section 501(g) or (h), the
expenses (including the reasonable charges and expenses of its counsel) of and
the compensation for such services are intended to constitute expenses of
administration under any applicable Federal or State bankruptcy, insolvency or
other similar law.
The provisions of this Section shall survive the termination
of this Indenture.
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SECTION 609. Corporate Trustee Required; Eligibility.
There shall be at all times a Trustee hereunder that shall be
eligible to act as Trustee under TIA Section 310(a)(1) and 310(a)(5) and shall
have a combined capital and surplus of at least $50,000,000. If such corporation
publishes reports of condition at least annually, pursuant to law or to the
requirements of Federal, State, territorial or District of Columbia supervising
or examining authority, then for the purposes of this Section, the combined
capital and surplus of such corporation shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time the Trustee shall cease to be eligible in accordance
with the provisions of this Section, it shall resign immediately in the manner
and with the effect hereinafter specified in this Article.
SECTION 610. Resignation and Removal; Appointment of
Successor.
(a) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article shall become
effective until the acceptance of appointment by the successor Trustee in
accordance with the applicable requirements of Section 611.
(b) The Trustee may resign at any time by giving written
notice thereof to the Company. If the instrument of acceptance by a successor
Trustee required by Section 611 shall not have been delivered to the Trustee
within 30 days after the giving of such notice of resignation, the resigning
Trustee may petition any court of competent jurisdiction for the appointment of
a successor Trustee.
(c) The Trustee may be removed at any time by Act of the
Holders of not less than a majority in principal amount of the Outstanding
Notes, delivered to the Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with the provisions of
TIA Section 310(b) after written request therefor by the Company or by
any Holder who has been a bona fide Holder of a Note for at least six
months, or
(2) the Trustee shall cease to be eligible under Section 609
and shall fail to resign after written request therefor by the Company
or by any Holder who has been a bona fide Holder of a Note for at least
six months, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of its
property shall be appointed
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or any public officer shall take charge or control of the Trustee or
of its property or affairs for the purpose of rehabilitation,
conservation or liquidation,
then, in any such case, (i) the Company, by a Board Resolution, may remove the
Trustee, or (ii) subject to TIA Section 315(e), any Holder who has been a bona
fide Holder of a Note for at least six months may, on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor Trustee.
(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of Trustee for
any cause, the Company, by a Board Resolution, shall promptly appoint a
successor Trustee. If, within one year after such resignation, removal or
incapability, or the occurrence of such vacancy, a successor Trustee shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Notes delivered to the Company and the retiring Trustee, the
successor Trustee so appointed shall, forthwith upon its acceptance of such
appointment, become the successor Trustee and supersede the successor Trustee
appointed by the Company. If no successor Trustee shall have been so appointed
by the Company or the Holders and accepted appointment in the manner hereinafter
provided, any Holder who has been a bona fide Holder of a Note for at least six
months may, on behalf of himself and all others similarly situated, petition any
court of competent jurisdiction for the appointment of a successor Trustee.
(f) The Company shall give notice of each resignation and each
removal of the Trustee and each appointment of a successor Trustee to the
Holders of Notes in the manner provided for in Section 106. Each notice shall
include the name of the successor Trustee and the address of its Corporate Trust
Office.
SECTION 611. Acceptance of Appointment by Successor.
Every successor Trustee appointed hereunder shall execute,
acknowledge and deliver to the Company and to the retiring Trustee an instrument
accepting such appointment, and thereupon the resignation or removal of the
retiring Trustee shall become effective and such successor Trustee, without any
further act, deed or conveyance, shall become vested with all the rights,
powers, trusts and duties of the retiring Trustee; but, on request of the
Company or the successor Trustee, such retiring Trustee shall, upon payment of
its charges, execute and deliver an instrument transferring to such successor
Trustee all the rights, powers and trusts of the retiring Trustee and shall duly
assign, transfer and deliver to such successor Trustee all property and money
held by such retiring Trustee hereunder. Upon reasonable request of any such
successor Trustee, the Company shall execute any and all instruments for more
fully and certainly vesting in and confirming to such successor Trustee all such
rights, powers and trusts.
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No successor Trustee shall accept its appointment unless at
the time of such acceptance such successor Trustee shall be qualified and
eligible under this Article.
SECTION 612. Merger, Conversion, Consolidation or Succession
to Business.
Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Trustee shall be a
party, or any corporation succeeding to all or substantially all of the
corporate trust business of the Trustee, shall be the successor of the Trustee
hereunder, provided such corporation shall be otherwise qualified and eligible
under this Article, without the execution or filing of any paper or any further
act on the part of any of the parties hereto. In case any Notes shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Notes so authenticated with the same effect
as if such successor Trustee had itself authenticated such Notes. In case at
that time any of the Notes shall not have been authenticated, any successor
Trustee may authenticate such Notes either in the name of any predecessor
hereunder or in the name of the successor Trustee. In all such cases such
certificates shall have the full force and effect that this Indenture provides
for the certificate of authentication of the Trustee shall have; provided,
however, that the right to adopt the certificate of authentication of any
predecessor Trustee or to authenticate Notes in the name of any predecessor
Trustee shall apply only to its successor or successors by merger, conversion or
consolidation.
SECTION 613. Conflicting Interests.
The Trustee shall be subject to and comply with the provisions
of Section 310(b) of the TIA.
SECTION 614. Preferential Collection of Claims Against
Issuers.
The Trustee shall comply with Section 311(a) of the TIA,
excluding any creditor relationship listed in Section 311(b) of the TIA. If the
present or any future Trustee shall resign or be removed, it shall be subject to
Section 311(a) of the TIA to the extent provided therein.
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ARTICLE SEVEN
HOLDERS LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Disclosure of Names and Addresses of Holders.
Every Holder of Notes, by receiving and holding the same,
agrees with the Company and the Trustee that none of the Company or the Trustee
or any agent of either of them shall be held accountable by reason of the
disclosure of any such information as to the names and addresses of the Holders
in accordance with TIA Section 312, regardless of the source from which such
information was derived, and that the Trustee shall not be held accountable by
reason of mailing any material pursuant to a request made under TIA Section
312(b).
SECTION 702. Reports by Trustee.
Within 60 days after May 15 of each year commencing with the
first May 15 after the first issuance of Notes, the Trustee shall transmit to
the Holders, in the manner and to the extent provided in TIA Section 313(c), a
brief report dated as of such May 15 if required by TIA Section 313(a).
SECTION 703. Reports by Company.
The Company shall:
(1) whether or not the Company is subject to Section 13(a)
or 15(d) of the Securities Exchange Act of 1934, as amended, or any
successor provision thereto, file with the Commission the annual
reports, quarterly reports and other documents that the Company would
have been required to file with the Commission pursuant to such
Section 13(a), 15(d) or any successor provision thereto if the Company
were subject thereto and shall file such documents with the Commission
on or prior to the respective dates (the "Required Filing Dates")
by which the Company would have been required to file them;
(2) whether or not the Company is subject to Section 13(a)
or 15(d) of the Securities Exchange Act of 1934, as amended, or any
successor provision thereto, within 15 days of each Required Filing
Date, file with the Trustee copies of the annual reports, quarterly
reports and other documents (without exhibits) that the Company
would have been required to file with the Commission pursuant to
Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as
amended, or any successor provisions thereto if the Company was
subject thereto;
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(3) file with the Trustee and the Commission, in accordance
with rules and regulations prescribed from time to time by the
Commission, such additional information, documents and reports with
respect to compliance by the Company with the conditions and covenants
of this Indenture as may be required from time to time by such rules
and regulations; and
(4) transmit by mail to all Holders, in the manner and to the
extent provided in TIA Section 313(c), within 15 days after the filing
thereof with the Commission, such summaries of any information,
documents and reports required to be filed by the Company pursuant to
paragraphs (1), (2) and (3) of this Section as may be required by
rules and regulations prescribed from time to time by the Commission.
If the Company is not permitted under the Exchange Act to file
with the Commission such reports and other information referred to in Section
703(1), the Company shall promptly upon written request supply copies of such
documents (without exhibits) to prospective purchasers of the Notes or their
representatives.
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, etc., Only on Certain
Terms.
The Company shall not, in any transaction or series of
transactions, consolidate with or merge into any other Person (other than a
merger of a Restricted Subsidiary into the Company in which the Company is the
continuing corporation), or sell, convey, assign, transfer, lease or otherwise
dispose of all or substantially all of the property and assets of the Company
and its Restricted Subsidiaries taken as a whole to any other person, and the
Company shall not permit any of its Restricted Subsidiaries to enter into any
such transaction or series of related transactions if such transaction or series
of related transactions, in the aggregate, would result in a sale, assignment,
transfer, lease, conveyance or other disposition of all or substantially all of
the property and assets of the Company and its Restricted Subsidiaries, taken as
a whole, to another Person, unless:
(a) either (i) the Company shall be the continuing corporation
or (ii) the corporation (if other than the Company) formed by such
consolidation or into which the Company is merged, or the Person that
acquires, by sale, assignment, conveyance, transfer, lease or
disposition, all or substantially all of the property and assets of the
Company and its Restricted Subsidiaries taken as a whole (such
corporation or Person, the "Surviving Entity"), shall be a corporation
organized and
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validly existing under the laws of the United States of America, any
political subdivision thereof or any state thereof or the District of
Columbia, and shall expressly assume, by a supplemental indenture, the
due and punctual payment of the principal of (and premium, if any) and
interest on all the Notes and the performance of the Company's
covenants and obligations under this Indenture;
(b) immediately before and after giving effect to such
transaction or series of transactions on a pro forma basis (including,
without limitation, any Debt incurred or anticipated to be incurred in
connection with or in respect of such transaction or series of
transactions), no Default or Event of Default shall have occurred and
be continuing or would result therefrom;
(c) immediately after giving effect to any such transaction or
series of transactions on a pro forma basis (including, without
limitation, any Debt incurred or anticipated to be incurred in
connection with or in respect of such transaction or series of
transactions), as if such transaction or series of transactions had
occurred on the first day of the determination period, the Company (or
the Surviving Entity if the Company is not continuing) would be
permitted to incur $1.00 of additional Debt pursuant to clause (o) of
the definition of "Permitted Debt"; and
(d) the Company or such Person shall have delivered to the
Trustee an Officers' Certificate and an Opinion of Counsel, each
stating that such consolidation, merger, conveyance, transfer or lease
and, if a supplemental indenture is required in connection with such
transaction, such supplemental indenture, comply with this Article and
that all conditions precedent herein provided for relating to such
transaction have been complied with.
Notwithstanding the foregoing, the Company may merge with an
Affiliate incorporated or organized for the sole purpose of reincorporating or
reorganizing the Company in another jurisdiction to realize tax or other
benefits provided such merger meets the requirements of clauses (a), (b) and (d)
of the preceding paragraphs.
Upon any transaction or series of transactions that are of the
type described in, and are effected in accordance with, the foregoing
paragraphs, the Surviving Entity (if other than the Company) shall succeed to,
and be substituted for, and may exercise every right and power of, the Company
under this Indenture and the Notes with the same effect as if such Surviving
Entity had been named as the Company herein; and when a Surviving Person duly
assumes all of the obligations and covenants of the Company pursuant to this
Indenture and the Notes, except in the case of a lease, the predecessor Person
shall be relieved of all such obligations.
SECTION 802. Successor Substituted.
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Upon any consolidation of the Company with or merger of the
Company with or into any other corporation or any conveyance, transfer or lease
of the properties and assets of the Company substantially as an entirety to any
Person in accordance with Section 801, the successor Person formed by such
consolidation or into which the Company is merged or to which such conveyance,
transfer or lease is made shall succeed to, and be substituted for, and may
exercise every right and power of, the Company under this Indenture with the
same effect as if such successor Person had been named as the Company herein,
and in the event of any such conveyance or transfer, the Company (which term
shall for this purpose mean the Person named as the "Company" in the first
paragraph of this Indenture or any successor Person that shall theretofore
become such in the manner described in Section 801), except in the case of a
lease, shall be discharged of all obligations and covenants under this Indenture
and the Notes and may be dissolved and liquidated.
SECTION 803. Notes to Be Secured in Certain Events.
If, upon any such consolidation of the Company with or merger
of the Company into any other corporation, or upon any conveyance, lease or
transfer of the property of the Company substantially as an entirety to any
other Person, any property or assets of the Company would thereupon become
subject to any Lien, then unless such Lien could be created pursuant to Section
1011 without equally and ratably securing the Notes, the Company, prior to or
simultaneously with such consolidation, merger, conveyance, lease or transfer,
will as to such property or assets, secure the Notes Outstanding (together with,
if the Company shall so determine, any other Debt of the Company now existing or
hereinafter created that is not subordinate in right of payment to the Notes)
equally and ratably with (or prior to) the Debt that upon such consolidation,
merger, conveyance, lease or transfer is to become secured as to such property
or assets by such Lien, or will cause such Notes to be so secured.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of
Holders.
Without notice to or the consent of any Holders, the Company,
when authorized by a Board Resolution, and the Trustee, at any time and from
time to time, may amend, waive or supplement this Indenture, the Notes and the
Pledge Agreement and (if necessary) enter into one or more indentures
supplemental hereto, in form reasonably satisfactory to the Trustee, for any of
the following purposes:
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(1) to evidence the succession of another Person to the
Company and the assumption by any such successor of the covenants of
the Company contained herein, in the Notes or in the Pledge Agreement,
or
(2) to add to the covenants of the Company for the benefit of
the Holders or to surrender any right or power herein conferred upon
the Company, or
(3) to add any additional Events of Default, or
(4) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee pursuant to the requirements of
Section 611, or
(5) to cure any ambiguity, to correct or supplement any
provision herein that may be inconsistent with any other provision
herein, in the Notes or in the Pledge Agreement, or to add any other
provisions with respect to matters or questions arising under this
Indenture, the Notes or the Pledge Agreement; provided that such action
shall not adversely affect the interests of the Holders in any material
respect, or
(6) to secure the Notes pursuant to the requirements of
Section 803 or 1013 or otherwise, or
(7) to provide for uncertificated Notes in addition to or in
place of certificated Notes, or
(8) to change or eliminate any of the provisions herein, in
the Notes or in the Pledge Agreement; provided that any such change or
elimination shall become effective only when there is not Outstanding
any Note created prior to the execution of such amendment, waiver or
supplemental indenture that is entitled to the benefit of such
provision, or
(9) to comply with the requirements of the Commission in order
to effect or maintain the qualification of this Indenture under the
Trust Indenture Act.
SECTION 902. Supplemental Indentures with Consent of Holders.
With the consent (including consents obtained with a purchase
of, or a tender or exchange offer for, Notes) of the Holders of not less than a
majority in principal amount of the Outstanding Notes, by Act of said Holders
delivered to the Company and the Trustee, the Company, when authorized by a
Board Resolution, and the Trustee may amend, waive or supplement this Indenture,
the Notes and the Pledge Agreement and (if necessary) enter into an indenture or
indentures supplemental hereto for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Indenture or
of
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modifying in any manner the rights of the Holders under this Indenture;
provided, however, that no such supplemental indenture shall, without the
consent (including consents obtained with a purchase of, or a tender or exchange
offer for, Notes) of the Holder of each Outstanding Note affected thereby:
(1) change the Stated Maturity of the principal of or any
installment of interest on any Note, or reduce the principal amount
thereof (or premium, if any) or the rate of interest thereon or change
the coin or currency in which any Note or any premium or the interest
thereon is payable, or impair the right to institute suit for the
enforcement of any such payment after the Stated Maturity thereof (or,
in the case of redemption, on or after the Redemption Date), or
(2) reduce the percentage in principal amount of the
Outstanding Notes, the consent of whose Holders is required for any
such supplemental indenture, or the consent of whose Holders is
required for any waiver of compliance with certain provisions of this
Indenture or certain defaults hereunder and their consequences provided
for in this Indenture, or
(3) modify the obligations of the Company to make offers to
purchase Notes in accordance with Sections 1009 and 1016, or
(4) subordinate in right of payment, or otherwise subordinate,
the Notes to any other Debt, or
(5) modify Article Twelve or the Pledge Agreement in a manner
that adversely affects the rights of any Holder in any material
respect, or
(6) modify any of the provisions of this Section or Sections
513 and 1018, except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or waived
without the consent of the Holder of each Outstanding Note affected
hereby.
It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such Act shall approve the substance thereof.
SECTION 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by,
any supplemental indenture permitted by this Article or the modifications
thereby of the trusts created by this Indenture, the Trustee shall be entitled
to receive, and shall be fully protected in relying upon, an Opinion of Counsel
stating that the execution of such supplemental indenture is
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authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture that affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
SECTION 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this
Article, this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all purposes; and
every Holder of Notes theretofore or thereafter authenticated and delivered
hereunder shall be bound thereby.
SECTION 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to the Article
shall conform to the requirements of the Trust Indenture Act as then in effect
if this Indenture shall then be required to be qualified under the TIA.
SECTION 906. Reference in Notes to Supplemental Indentures.
Notes authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall if required by
the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so determine,
replacement Notes so modified as to conform, in the opinion of the Trustee and
the Company, to any such supplemental indenture may be prepared and executed by
the Company and authenticated and delivered by the Trustee in exchange for
Outstanding Notes.
SECTION 907. Notice of Supplemental Indentures.
Reasonably promptly after the execution by the Company and the
Trustee of any supplemental indenture pursuant to the provisions of Section 902,
the Company shall give notice thereof to the Holders of each Outstanding Note
affected, in the manner provided for in Section 106, setting forth in general
terms the substance of such supplemental indenture. Any failure of the Company
to mail such notice, or any defect therein, shall not, however, in any way
impair or affect the validity of any supplemental indenture or effectiveness of
any such amendment, supplement or waiver.
SECTION 908. Effect of Consents.
Until an amendment, supplement or waiver becomes effective, a
consent to it by a Holder is a continuing consent by the Holder and every
subsequent Holder of that Note or portion of that Note that evidences the same
debt as the consenting Holder's Note, even if
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notation of the consent is not made on any Note. After an amendment, supplement
or waiver becomes effective, it shall bind every Holder of Notes.
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium, if any, and
Interest.
The Company covenants and agrees for the benefit of the
Holders that it will duly and punctually pay the principal of (and premium, if
any) and interest on the Notes in accordance with the terms of the Notes and
this Indenture.
SECTION 1002. Maintenance of Office or Agency.
The Company will maintain in The City of New York, an office
or agency where Notes may be presented or surrendered for payment, where Notes
may be surrendered for registration of transfer or exchange and where notices
and demands to or upon the Company in respect of the Notes and this Indenture
may be served. The Trustee's New York Corporate Trust Office at [________] shall
be such office or agency of the Company, unless the Company shall designate and
maintain some other office or agency for one or more of such purposes. The
Company will give prompt written notice to the Trustee of any change in the
location of any such office or agency. If at any time the Company shall fail to
maintain any such required office or agency or shall fail to furnish the Trustee
with the address thereof, such presentations, surrenders, notices and demands
may be made or served at the Corporate Trust Office of the Trustee, and the
Company hereby appoints the Trustee as its agent to receive all such
presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more
other offices or agencies (in or outside of The City of New York) where the
Notes may be presented or surrendered for any or all such purposes and may from
time to time rescind any such designation; 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 City of New York for such
purposes. The Company will give prompt written notice to the Trustee of any such
designation or rescission and any change in the location of any such other
office or agency.
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SECTION 1003. Money for Note Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent,
it will, on or before each due date of the principal of (or premium, if any) or
interest on any of the Notes, segregate and hold in trust for the benefit of the
Persons entitled thereto a sum sufficient to pay the principal of (or premium,
if any) or interest so becoming due until such sums shall be paid to such
Persons or otherwise disposed of as herein provided and will promptly notify the
Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for
the Notes, it will, on or before each due date of the principal of (or premium,
if any) or interest on any Notes, deposit with a Paying Agent a sum sufficient
to pay the principal (and premium, if any) or interest so becoming due, such sum
to be held in trust for the benefit of the Persons entitled to such principal,
premium or interest, and (unless such Paying Agent is the Trustee) the Company
will promptly notify the Trustee of such action or any failure so to act.
The Company will cause each Paying Agent (other than the
Company or the Trustee) to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the provisions
of this Section, that such Paying Agent will:
(1) hold all sums held by it for the payment of the principal
of (and premium, if any) or interest on Notes in trust for the benefit
of the Persons entitled thereto until such sums shall be paid to such
Persons or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company (or
any other obligor upon the Notes) in the making of any payment of
principal (and premium, if any) or interest; and
(3) at any time during the continuance of any such default,
upon the written request of the Trustee, forthwith pay to the Trustee
all sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such sums.
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Any money deposited with the Trustee or any Paying Agent, or
then held by the Company, in trust for the payment of the principal of (or
premium, if any) or interest on any Note and remaining unclaimed for two years
after such principal, premium or interest has become due and payable shall be
paid to the Company on Company Request, or (if then held by the Company) shall
be discharged from such trust; and the Holder of such Note shall thereafter, as
an unsecured general creditor, look only to the Company for payment thereof, and
all liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall thereupon
cease.
SECTION 1004. Corporate Existence.
Subject to Article Eight, the Company will do or cause to be
done all things necessary to preserve and keep in full force and effect the
corporate existence, rights (charter and statutory) and franchises of the
Company and each Restricted Subsidiary of the Company; provided, however, that
the Company shall not be required to preserve any such right or franchise if the
Board of Directors shall determine that the preservation thereof is no longer
desirable in the conduct of the business of the Company and its Restricted
Subsidiaries as a whole and that the loss thereof would not materially adversely
affect the Company's ability to perform its obligations under this Indenture and
the Notes; provided further, however, that the foregoing shall not prohibit a
liquidation, dissolution, merger, consolidation, sale, transfer, conveyance or
other disposition of a Restricted Subsidiary of the Company or any of its assets
or Capital Stock in compliance with the other terms of this Indenture.
SECTION 1005. Payment of Taxes and Other Claims.
The Company will pay or discharge or cause to be paid or
discharged, before the same shall become delinquent, (a) all material taxes,
assessments and governmental charges levied or imposed upon the Company or any
of its Restricted Subsidiaries or upon the income, profits or property of the
Company or any of its Restricted Subsidiaries and (b) all material lawful claims
for labor, materials and supplies that, if unpaid, might by law become a lien
upon the property of the Company or any of its Restricted Subsidiaries (other
than any Permitted Lien or other Lien permitted by this Indenture); provided,
however, that the Company shall not be required to pay or discharge or cause to
be paid or discharged any such tax, assessment, charge or claim whose amount,
applicability or validity is being contested in good faith by appropriate
proceedings.
SECTION 1006. Maintenance of Properties.
The Company will cause all material properties owned by the
Company or any of its Restricted Subsidiaries or used or held for use in the
conduct of its business or the business of any of its Restricted Subsidiaries to
be maintained and kept in good condition,
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repair and working order (reasonable wear and tear excepted) and supplied with
all reasonably necessary equipment and will cause to be made all reasonably
necessary repairs, renewals, replacements, betterments and improvements thereof,
all as in the judgment of the Company reasonably may be necessary so that the
business carried on in connection therewith may be conducted at all times in the
ordinary course; provided, however, that nothing in this Section shall prevent
the Company from discontinuing the maintenance of any of such properties if such
discontinuance is, in the judgment of the Company, desirable in the conduct of
its business or the business of any of its Restricted Subsidiaries or if such
discontinuance or disposal is not materially adverse to the ability of the
Company to satisfy its obligations hereunder.
SECTION 1007. Insurance.
The Company will at all times keep all of its and its
Restricted Subsidiaries' properties that are of an insurable nature insured with
insurers, believed by the Company to be responsible, against loss or damage to
the extent that property of similar character is usually so insured by
corporations similarly situated and owning like properties (which may include
self-insurance, if reasonable and in comparable form to that maintained by
companies similarly situated).
SECTION 1008. Statement by Officers as to Default.
(a) The Company will deliver to the Trustee, within 120 days
after the end of each fiscal year, a brief certificate from the principal
executive officer, principal financial officer or principal accounting officer
as to his or her knowledge of the Company's compliance with all conditions and
covenants under this Indenture. For purposes of this Section 1008(a), such
compliance shall be determined without regard to any period of grace or
requirement of notice under this Indenture.
(b) When any Default has occurred and is continuing under this
Indenture, or if the trustee for or the holder of any other evidence of Debt of
the Company or any Subsidiary gives any notice or takes any other action with
respect to a claimed default (other than with respect to Debt in the principal
amount of less than $15,000,000), the Company shall deliver to the Trustee by
registered or certified mail or by telegram, telex or facsimile transmission an
Officers' Certificate specifying such event, notice or other action within five
Business Days of its occurrence.
SECTION 1009. Purchase of Notes upon Change of Control.
(a) Upon the occurrence of a Change of Control, each Holder
shall have the right to require that the Company repurchase such Holder's
Outstanding Notes (the "Change of Control Offer") in whole or in part in
integral multiples of $1,000, at a purchase
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price (the "Purchase Price") in cash in an amount equal to 101% of the principal
amount thereof plus accrued and unpaid interest, if any, to the date of
purchase, in accordance with the procedures set forth in paragraphs (b) and (c)
of this Section.
(b) Within 30 days following any Change of Control, the
Company shall give to each Holder of the Notes in the manner provided in Section
106 a notice stating:
(1) that a Change of Control has occurred and a Change of
Control Offer is being made as described in this Section 1009, and
that, although Holders are not required to tender their Notes, all
Notes that are tendered in accordance with paragraph (c) of this
Section 1009 shall be accepted for payment;
(2) the circumstances and relevant facts regarding such Change
of Control (including but not limited to information with respect to
pro forma historical income, cash flow and capitalization after giving
effect to such Change of Control);
(3) the Purchase Price and the date of purchase, which shall
be no earlier than 30 days nor later than 60 days from the date such
notice is mailed (the "Change of Control Payment Date");
(4) the instructions and any other information necessary to
enable Holders to tender their Notes and have such Notes repurchased in
accordance with paragraph (d) of this Section; and
(5) that, unless the Company defaults in the payment of the
Purchase Price for the Notes payable pursuant to such Change of Control
Offer, any Notes accepted for payment pursuant to such Change of
Control Offer shall cease to accrue interest after the Change of
Control Payment Date.
(c) Holders electing to have Notes purchased will be required
to surrender such Notes to the Company at the address specified in the notice at
least five Business Days prior to the Change of Control Payment Date. Holders
will be entitled to withdraw their election if the Company receives, not later
than three Business Days prior to the Change of Control Payment Date, a
telegram, telex, facsimile transmission or letter setting forth the name of the
Holder, the principal amount of the Notes delivered for purchase by the Holder
as to which his election is to be withdrawn and a statement that such Holder is
withdrawing his election to have such Notes purchased. Holders whose Notes are
purchased only in part will be issued new Notes equal in principal amount to the
unpurchased portion of the Notes surrendered.
In the event that a Change of Control occurs and the Company
is required to purchase Notes as described above, the Company will comply with
the applicable tender
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offer rules, including the requirements of Section 14(e) and Rule 14e-1 under
the Exchange Act and any other securities laws and regulations to the extent
such laws and regulations are applicable, and will be deemed not to be in
violation of any of its covenants under this Indenture to the extent such
compliance is in conflict with such covenants.
On and after a Change of Control Payment Date, interest will
cease to accrue on the Notes or portions thereof accepted for payment unless the
Company defaults in the payment of the purchase price therefor.
(d) Notwithstanding paragraphs (a) and (b), the Company shall
not be required to make a Change of Control Offer upon a Change of Control if a
third party makes the Change of Control Offer in the manner, at the times and
otherwise in compliance with the requirements set forth in this Section 1009
applicable to a Change of Control Offer made by the Company and, in accordance
with paragraph (c) of this Section 1009, purchases all Notes validly tendered
under the Change of Control Offer and not withdrawn.
SECTION 1010. Limitation on Debt.
The Company shall not, and shall not permit any of its
Restricted Subsidiaries to, directly or indirectly, incur any Debt (including
Acquired Debt) unless (i) after giving effect to such incurrence of Debt and the
contemporaneous application of the proceeds thereof, no Default or Event of
Default shall have occurred and be continuing at the time or would occur as a
consequence of the incurrence of such Debt, and (ii) such Debt is Permitted
Debt.
SECTION 1011. Limitation on Liens.
The Company shall not, and shall not permit any of its
Restricted Subsidiaries to, directly or indirectly, create, incur, assume or
suffer to exist any Lien of any kind (other than Permitted Liens) on or with
respect to any of its property or assets, including any shares of stock or Debt
of any Restricted Subsidiary of the Company, whether owned at the Issue Date or
thereafter acquired, or any income, profits or proceeds therefrom, or assign or
otherwise convey any right to receive income thereon, where such Lien,
assignment or conveyance secures Debt, unless (x) in the case of any Lien
securing Subordinated Debt, the Notes are secured by a Lien on such property,
assets or income, profits or proceeds that is senior in priority to such Lien
and (y) in the case of any other Lien, the Notes are equally and ratably secured
with the obligation or liability secured by such Lien. Any such Lien thereby
created in favor of the Notes shall be automatically and unconditionally
released and discharged upon (i) the release and discharge of the Lien or Liens
to which it relates, or (ii) any sale, exchange or transfer to any Person not an
Affiliate of the Company of the property or assets secured by such Lien or
Liens, or of all of the Capital Stock held by the Company
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or any of its Restricted Subsidiaries in, or all or substantially all the assets
of, any Restricted Subsidiary creating such Lien or Liens.
SECTION 1012. Limitation on Restricted Payments.
The Company shall not, and shall not permit any of its
Restricted Subsidiaries to, directly or indirectly, make any Restricted Payment
unless, at the time of and after giving effect to the proposed Restricted
Payment, (i) no Default or Event of Default shall have occurred and be
continuing or shall occur as a consequence thereof; (ii) after giving effect, on
a pro forma basis, to such Restricted Payment and the incurrence of any Debt the
net proceeds of which are used to finance such Restricted Payment, the Company
could incur at least $1.00 of additional Debt pursuant to clause (o) of the
definition of Permitted Debt; and (iii) after giving effect to such Restricted
Payment on a pro forma basis, the aggregate amount expended or declared for all
Restricted Payments on or after the Issue Date does not exceed the sum of (A)
cumulative EBITDA of the Company and its Restricted Subsidiaries (or, if the
cumulative EBITDA is negative, minus 100% of such negative amount) less 1.5
times cumulative Consolidated Interest Expense of the Company and its Restricted
Subsidiaries, in each case for the period (treated as one accounting period)
beginning on the first day of the Company's fiscal quarter after which the Issue
Date occurs, and ending on the last day of the Company's fiscal quarter for
which financial statements are available immediately preceding such proposed
Restricted Payment, (B) the aggregate Net Cash Proceeds received by the Company
subsequent to the Issue Date either (x) as capital contributions to the Company
in the form of or with respect to Common Stock of the Company or (y) from the
issuance or sale (other than to a Restricted Subsidiary of the Company) of
Qualified Capital Stock of the Company (including Qualified Capital Stock issued
upon conversion of convertible Debt or convertible Redeemable Capital Stock) or
Subordinated Stockholder Debt or any options, warrants or rights to purchase
such Qualified Capital Stock of the Company, less 50% of Debt incurred pursuant
to clause (l) of the definition of Permitted Debt, and (C) in the case of the
disposition or repayment of any Investment constituting a Restricted Payment
made after the Issue Date (including by redesignation of an Unrestricted
Subsidiary of the Company to a Restricted Subsidiary of the Company), an amount
equal to the lesser of the return of capital with respect to such Investment and
the initial amount of such Investment, in either case, less the cost of the
disposition of such Investment.
The foregoing limitations do not prevent (i) the payment of a
dividend or similar distribution on the Capital Stock of the Company or any of
its Restricted Subsidiaries at any time within 60 days after the declaration
thereof if, on the declaration date, the Company could have paid such dividend
in compliance with this Indenture; (ii) the making of Permitted Investments by
the Company or any of its Restricted Subsidiaries; (iii) the redemption,
repurchase, retirement or other acquisition of any Capital Stock or Subordinated
Debt of the Company in exchange for (including any such exchange pursuant to the
exercise
78
of a conversion right or privilege in which cash is paid in lieu of fractional
shares or scrip), or out of the Net Cash Proceeds of the substantially
concurrent sale (other than to a Restricted Subsidiary of the Company) of,
Qualified Capital Stock of the Company; (iv) the purchase, redemption,
defeasance or other acquisition or retirement for value of Subordinated Debt of
the Company in exchange for (including any such exchange pursuant to the
exercise of a conversion right or privilege in which cash is paid in lieu of
fractional shares or scrip), or out of the Net Cash Proceeds of a substantially
concurrent incurrence (other than to a Restricted Subsidiary of the Company) of,
new Subordinated Debt of the Company so long as (A) the principal amount of such
new Subordinated Debt does not exceed the principal amount (or, if such
Subordinated Debt being refinanced provides for an amount less than the
principal amount thereof to be due and payable upon a declaration of
acceleration thereof, such lesser amount as of the date of determination) of the
Subordinated Debt being so purchased, redeemed, defeased, acquired or retired,
plus the lesser of the amount of any premium required to be paid in connection
with such refinancing pursuant to the terms of the Subordinated Debt being
refinanced or the amount of any premium reasonably determined by the Company as
necessary to accomplish such refinancing, plus, in either case, the amount of
expenses of the Company incurred in connection with such refinancing, (B) such
new Subordinated Debt is subordinated to the Notes to the same extent as such
Subordinated Debt so purchased, redeemed, defeased, acquired or retired, and (C)
such new Subordinated Debt has an Average Life longer than the Average Life of
the Subordinated Debt being refinanced and a final Stated Maturity of principal
later than the final Stated Maturity of principal of the Subordinated Debt being
refinanced; (v) any purchase or defeasance of Subordinated Debt to the extent
required upon a change of control or asset sale (as defined therein) by the
indenture or other agreement or instrument pursuant to which such Subordinated
Debt was issued, but only if the Company (x) in the case of a Change of Control,
has complied with its obligations under Section 1009 or (y) in the case of an
Asset Sale, has applied the Net Cash Proceeds from such Asset Sale in accordance
with Section 1016; (vi) the repurchase of Capital Stock of the Company
(including options, warrants or other rights to acquire such Capital Stock) from
departing or deceased directors, officers or employees of the Company or its
Subsidiaries in an aggregate amount not to exceed $1.0 million in any fiscal
year, provided that the Company may carry forward the unused portion of the $1.0
million in any fiscal year to the next fiscal year, and provided further that
the Company may not carry forward more than $2.0 million to any subsequent
fiscal year; and (vii) the purchase, redemption, acquisition, cancellation or
other retirement for value of shares of Capital Stock of the Company to the
extent necessary, in the judgment of the Board of Directors of the Company, to
prevent the loss or secure the removal or reinstatement of any license held by
the Company or any Restricted Subsidiary from any governmental agency as a
result of laws limiting foreign ownership of the Company's Capital Stock.
Restricted Payments made pursuant to clauses (i), (iii), (vi)
and (vii) of the immediately preceding paragraph shall reduce the amount that
would otherwise be available for Restricted Payments under clause (iii) of the
second preceding paragraph and Restricted
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Payments made pursuant to clauses (ii), (iv) and (v) of the immediately
preceding paragraph shall not reduce the amount that would otherwise be
available for Restricted Payments under clause (iii) of the second preceding
paragraph, provided that any Permitted Investments made pursuant to clause (a)
of the definition of Permitted Investments shall be deemed to be Restricted
Payments for the purposes of clause (iii) of the second preceding paragraph.
For purposes of this Section 1012, if a particular Restricted
Payment involves a non-cash payment, including a distribution of assets, then
such Restricted Payment shall be deemed to be an amount equal to the cash
portion of such Restricted Payment, if any, plus an amount equal to the Fair
Market Value of the non-cash portion of such Restricted Payment as determined by
the Board of Directors of the Company, whose good faith determination shall be
conclusive and evidenced by a Board Resolution.
SECTION 1013. Limitation on Dividend and Other Payment
Restrictions Affecting Restricted Subsidiaries.
The Company shall not, and shall not permit any of its
Restricted Subsidiaries to, directly or indirectly, cause or suffer to exist or
become effective or enter into any consensual encumbrance or restriction on the
ability of any Restricted Subsidiary of the Company (i) to pay dividends or make
any other distributions in respect of its Capital Stock or pay any Debt or other
obligation owed to the Company or any other Restricted Subsidiary of the
Company; (ii) to make loans or advances to the Company or any Restricted
Subsidiary of the Company; or (iii) to transfer any of its property or assets to
the Company or any other Restricted Subsidiary of the Company, except:
(a) any encumbrance or restriction pursuant to an agreement in
effect at the Issue Date (including, but not limited to, the Senior
Discount Notes Indenture) or any amendment, restatement, renewal or
replacement of such agreement, so long as the encumbrances and
restrictions are not materially more restrictive than those in the
agreement in effect on the Issue Date;
(b) any encumbrance or restriction pursuant to an agreement
relating to an acquisition of property, so long as the encumbrances or
restrictions in any such agreement relate solely to the property so
acquired (and are not or were not created in anticipation of or in
connection with the acquisition thereof);
(c) any encumbrance or restriction relating to any Debt of any
Restricted Subsidiary of the Company at the date on which such
Restricted Subsidiary was acquired by the Company or any Restricted
Subsidiary of the Company (other than Debt incurred by such Restricted
Subsidiary in connection with or in anticipation of its acquisition);
80
(d) any encumbrance or restriction pursuant to an agreement
effecting a permitted refinancing of Debt issued pursuant to an
agreement referred to in the foregoing clauses (a) through (c), or
permitted replacement or increase of Debt referred to in the foregoing
clause (a) so long as the encumbrances and restrictions contained in
any such refinancing agreement are not materially more restrictive than
the encumbrances and restrictions contained in the agreements governing
the Debt being so refinanced;
(e) customary provisions restricting subletting or assignment
of any lease, license or similar contract of the Company or any
Restricted Subsidiary of the Company or provisions in agreements that
restrict the assignment of such agreement or any rights thereunder;
(f) any encumbrance or restriction arising out of any sale of
accounts receivable in the ordinary course (including in connection
with a financing transaction) to or by (i) an Accounts Receivable
Subsidiary or (ii) to Persons that are not Affiliates of the Company or
any Subsidiary of the Company;
(g) any encumbrance or restriction on the sale or other
disposition of assets or property securing Debt as a result of a
Permitted Lien on such assets or property (including, without
limitation, customary restrictions relating to assets securing the
Credit Agreement, any Vendor Debt or any Telecommunications Assets Debt
under the applicable security documents); and
(h) any encumbrance or restriction contained in contracts for
sales of assets permitted by Section 1016 with respect to the assets to
be sold pursuant to such contract.
Nothing contained in this Section 1013 shall prevent the
Company or any of its Restricted Subsidiaries from (1) creating, incurring,
assuming or suffering to exist any Liens otherwise permitted in Section 1011 or
(2) restrictions on the sale or other disposition of property or assets of the
Company or any of its Restricted Subsidiaries to the extent that such property
or assets secure Debt of the Company or any of its Restricted Subsidiaries not
incurred or secured in violation of this Indenture.
SECTION 1014. Limitation on Issuances of Certain Guarantees
by, and Debt Securities of, Restricted Subsidiaries.
The Company shall not permit any of its Restricted
Subsidiaries to (i) directly or indirectly Guarantee any Debt Securities of the
Company, or (ii) issue any Debt Securities, unless, in either such case, such
Restricted Subsidiary simultaneously executes and delivers a Subsidiary
Guarantee of the Notes. Any such Subsidiary Guarantee shall not
81
be subordinate in right of payment to any Debt of the Restricted Subsidiary
providing the Subsidiary Guarantee. A Restricted Subsidiary shall be deemed
released from all of its obligations under its Subsidiary Guarantee at any such
time that such Restricted Subsidiary is released from all of its obligations
under all of its Guarantees in respect of Debt Securities of the Company or its
obligations under its Debt Securities, as applicable. The obligations of each
Restricted Subsidiary under a Subsidiary Guarantee shall be limited to the
maximum amount, as shall, after giving effect to all other contingent and fixed
liabilities of such Restricted Subsidiary, result in the obligations of such
Restricted Subsidiary under the Subsidiary Guarantee not constituting a
fraudulent conveyance or fraudulent transfer under applicable law.
Notwithstanding the foregoing, any Subsidiary Guarantee by a Restricted
Subsidiary of the Notes shall provide by its terms that it shall be
automatically and unconditionally released and discharged upon the sale or other
disposition, by way of merger or otherwise, to any Person not an Affiliate of
the Company, of all of the Company's and its Restricted Subsidiaries' Capital
Stock in such Restricted Subsidiary. In addition, any Subsidiary Guarantee shall
be automatically and unconditionally released and discharged upon the merger or
consolidation of the applicable Restricted Subsidiary with and into the Company
or another Restricted Subsidiary that has guaranteed the Notes and that is the
surviving Person in such merger or consolidation.
SECTION 1015. Limitation on Issuances and Sales of Capital
Stock in Restricted Subsidiaries.
The Company (a) shall not permit any of its Restricted
Subsidiaries to issue any Capital Stock (other than to the Company or a
Restricted Subsidiary of the Company) unless the Company acquires at the same
time not less than its Proportionate Interest in such issuance of Capital Stock
and (b) shall not permit any Person (other than the Company or a Restricted
Subsidiary of the Company) to own any Capital Stock in any Restricted Subsidiary
of the Company; provided, however, that this Section 1015 shall not prohibit (i)
the sale or other disposition of all, but not less than all, of the issued and
outstanding Capital Stock in any Restricted Subsidiary owned by the Company or
any Restricted Subsidiary of the Company in compliance with the other provisions
of this Indenture, (ii) the ownership of Capital Stock issued as permitted by
clause (a) above, (iii) the ownership by directors of directors' qualifying
shares or the ownership by foreign nationals of Capital Stock in any Restricted
Subsidiary of the Company, to the extent mandated by applicable law, (iv) the
ownership of Capital Stock of a Restricted Subsidiary issued and outstanding
prior to the time that such Person becomes a Restricted Subsidiary of the
Company so long as such Capital Stock was not issued in contemplation of such
Person's becoming a Restricted Subsidiary of the Company or otherwise being
acquired by the Company, (v) the issuance or sale of Capital Stock of a
Restricted Subsidiary of the Company in a transaction that complies with Section
1016, provided that such Restricted Subsidiary would remain a Restricted
Subsidiary after such transaction, or, if not a Restricted Subsidiary of the
Company after such transaction, the remaining Capital Stock held by the Company
must be
82
treated as an Investment made at that time and must comply with Section 1012 or
constitute a Permitted Investment, and (vi) the ownership of Qualified Capital
Stock of a Restricted Subsidiary issued in exchange for, or the proceeds of
which are used to refinance, Capital Stock of a Restricted Subsidiary owned by a
Person other than the Company or a Restricted Subsidiary as permitted by clause
(iv), provided that (x) the liquidation value of such Qualified Capital Stock so
issued that is preferred stock shall not exceed the liquidation value of the
Capital Stock so exchanged or refinanced and (y) the Qualified Capital Stock so
issued that is preferred stock (I) shall not have a Stated Maturity earlier than
the Stated Maturity of the Capital Stock being exchanged or refinanced and (II)
shall not have an Average Life less than the remaining Average Life of the
Capital Stock being exchanged or refinanced. Notwithstanding the foregoing, each
Restricted Subsidiary of the Company that owns or holds a Federal Communications
Commission license for the transmission of wireless telecommunications services
shall at all times remain a wholly owned Restricted Subsidiary of the Company
and shall not, directly or indirectly, sell, convey, transfer, lease or
otherwise dispose of any assets or property used or useful in the operation of
the business of the Company or any of its Restricted Subsidiaries, other than
(i) to the Company or another wholly owned Restricted Subsidiary of the Company
or (ii) in a transaction that complies with Section 1016.
SECTION 1016. Limitation on Asset Sales.
The Company shall not, and shall not permit any of its
Restricted Subsidiaries to, consummate an Asset Sale unless (i) the Company or
such Restricted Subsidiary, as the case may be, receives consideration
(including by way of relief from, or by any Person other than the Company or any
of its Restricted Subsidiaries assuming responsibility for, any liabilities,
contingent or otherwise) at the time of such Asset Sale at least equal to the
Fair Market Value (as evidenced by a Board Resolution, which determination shall
be conclusive (including as to the value of all non-cash consideration)) of the
property or assets sold or otherwise disposed of, (ii) at least 75% of the
consideration received by the Company or such Restricted Subsidiary for such
property or assets consists of cash or Eligible Cash Equivalents and (iii) the
Company or such Restricted Subsidiary of the Company, as the case may be, uses
the Net Cash Proceeds in the manner set forth in the next paragraph; provided,
however, that for purposes of this Section 1016, "cash" shall include (i) the
amount of any liabilities (other than liabilities that are by their terms
subordinated to the Notes) of the Company or such Restricted Subsidiary (as
shown on the Company's or such Restricted Subsidiary's most recent balance sheet
or in the notes thereto) that are assumed by the transferee of any such assets
or other property in such Asset Sale or are no longer the liability of the
Company or any Restricted Subsidiary (and excluding any liabilities that are
incurred in connection with or in anticipation of such Asset Sale), but only to
the extent that such assumption is effected on a basis under which there is no
further recourse to the Company or any of its Restricted Subsidiaries with
respect to such liabilities, and (ii) any securities, notes or other obligations
received by the Company or any such Restricted
83
Subsidiary in connection with such Asset Sale that are converted by the Company
or such Restricted Subsidiary into cash within 60 days of receipt.
Within 360 days after any Asset Sale, the Company or such
Restricted Subsidiary of the Company, as the case may be, may at its option (a)
reinvest an amount equal to the Net Cash Proceeds (or any portion thereof) from
such disposition in Replacement Assets, provided that if such Investment is in a
project authorized by the Board of Directors of the Company that shall take
longer than such 360 day period to complete, the Company shall be entitled to
utilize 90 additional days to apply such Net Cash Proceeds, and/or (b) apply an
amount equal to such Net Cash Proceeds (or remaining Net Cash Proceeds) to the
permanent reduction of any Debt of the Company ranking pari passu with the Notes
(including the Notes and the Senior Discount Notes) or Debt of any Restricted
Subsidiary of the Company. Any Net Cash Proceeds from any Asset Sale that are
not used to reinvest in Replacement Assets and/or repay any such pari passu Debt
of the Company or Debt of its Restricted Subsidiaries constitute Excess
Proceeds.
When the aggregate amount of Excess Proceeds exceeds $10.0
million (an "Asset Sale Trigger Date"), the Company shall, as soon as
practicable, but in any event within 20 Business Days, make an offer to the
extent of the Excess Proceeds to purchase (an "Asset Sale Offer"), on a pro rata
basis, the Notes and the other Debt described in the next sentence, at a price
in cash for the Notes equal to 100% of the principal amount thereof plus accrued
and unpaid interest, if any, to the Asset Sale Offer Purchase Date (as defined
below), in accordance with the procedures set forth below. Any Asset Sale Offer
shall include a pro rata offer under similar circumstances to purchase all other
unsecured Debt of the Company ranking pari passu with the Notes, which Debt
contains similar provisions requiring the Company to purchase such Debt
(including, but not limited to, the Senior Discount Notes). To the extent that
any amount of Excess Proceeds remains after completion of such offer to
purchase, the Company or such Restricted Subsidiary of the Company may use such
remaining amount for general corporate purposes and the amount of Excess
Proceeds shall be reset to zero.
Notwithstanding the three immediately preceding paragraphs,
the Company and its Restricted Subsidiaries shall be permitted to consummate an
Asset Sale without complying with such paragraphs to the extent that (i) at
least 75% of the consideration for such Asset Sale consists of
Telecommunications Assets and (ii) such Asset Sale is for Fair Market Value;
provided that any such acquisition of Telecommunications Assets that is an
Investment is made in compliance with Section 1012 or constitutes a Permitted
Investment, other than pursuant to clause (h) of the definition thereof, and any
Net Cash Proceeds received by the Company or any of its Restricted Subsidiaries
in connection with any such Asset Sale shall be subject to the provisions of the
three immediately preceding paragraphs.
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Notice of an Asset Sale Offer shall be prepared and mailed by
the Company with a copy to the Trustee not later than the 20th business day
after the related Asset Sale Offer Trigger Date to each Holder of Notes at such
Holder's registered address, stating:
(1) that an Asset Sale Offer Trigger Date has occurred and
that the Company is offering to purchase the maximum principal amount
of Notes that may be purchased out of the Excess Proceeds to the extent
to be applied to an offer to purchase Notes (as provided in the
immediately preceding paragraph), at an offer price in cash in an
amount equal to 100% of the principal amount thereof, plus accrued and
unpaid interest, if any, to the date of the purchase (the "Asset Sale
Offer Purchase Date"), which shall be a Business Day, specified in such
notice, that is not earlier than 30 days or later than 60 days from the
date such notice is mailed;
(2) the amount of accrued and unpaid interest, if any, as of
the Asset Sale Offer Purchase Date;
(3) that any Note not tendered will continue to accrue
interest in accordance with the terms thereof;
(4) that, unless the Company defaults in the payment of the
purchase price for the Notes payable pursuant to the Asset Sale Offer,
any Notes accepted for payment pursuant to the Asset Sale Offer shall
cease to accrue interest after the Asset Sale Offer Purchase Date;
(5) that Holders electing to have Notes purchased pursuant
to an Asset Sale Offer will be required to surrender their Notes to the
Paying Agent at the address specified in the notice prior to 5:00 p.m.,
New York City time, on the third Business Day prior to the Asset Sale
Offer Purchase Date and must complete any form letter of transmittal
proposed by the Company (which letter must be completed correctly by
such Holder) and which is reasonably acceptable to the Trustee and the
Paying Agent;
(6) that Holders of Notes will be entitled to withdraw their
election if the Paying Agent receives, not later than 5:00 p.m., New
York City time, on the third Business Day prior to the Asset Sale Offer
Purchase Date, a telegram, telex, facsimile transmission or letter
setting forth the name of the Holder, the principal amount of Notes the
Holder delivered for purchase, the Note certificate number (if any) and
a statement that such Holder is withdrawing its election to have such
Notes purchased;
(7) that Holders whose Notes are purchased only in part will
be issued Notes equal in principal amount to the unpurchased portion of
the Notes surrendered; and
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(8) the instructions that Holders must follow in order to
tender their Notes.
On the Asset Sale Offer Purchase Date, the Company will (i)
accept for payment the maximum principal amount of Notes or portions thereof
tendered pursuant to the Asset Sale Offer that can be purchased out of Excess
Proceeds from such Asset Sale that are to be applied to an Asset Sale Offer (to
the extent provided in the second preceding paragraph), (ii) deposit with the
Paying Agent an amount in cash equal to the aggregate purchase price of all
Notes or portions thereof accepted for payment and any accrued and unpaid
interest on such Notes as of the Asset Sale Offer Purchase Date, and (iii)
deliver or cause to be delivered to the Trustee all Notes tendered pursuant to
the Asset Sale Offer. If less than all Notes tendered pursuant to the Asset Sale
Offer are accepted for payment by the Company for any reason consistent with
this Indenture, selection of the Notes to be purchased by the Company shall be
in compliance with the requirements of the principal national securities
exchange, if any, on which the Notes are listed or, if the Notes are not so
listed, on a pro rata basis or by lot; provided, however, that Notes accepted
for payment in part shall only be purchased in integral multiples of $1,000. The
Paying Agent shall as promptly as practicable after the Asset Sale Offer
Purchase Date mail to each Holder of Notes or portions thereof accepted for
payment an amount in cash equal to the purchase price for such Notes plus any
accrued and unpaid interest thereon, and the Trustee shall promptly authenticate
and mail to such Holder of Notes accepted for payment in part a new Note equal
in principal amount to any unpurchased portion of the Notes, and any Note not
accepted for payment in whole or in part shall be promptly returned to the
Holder of such Note.
On and after an Asset Sale Offer Purchase Date, interest will
cease to accrue on the Notes or portions thereof accepted for payment, unless
the Company defaults in the payment of the purchase price therefor. The Company
will announce the results of the Asset Sale Offer on or as soon as practicable
after the Asset Sale Offer Purchase Date.
The Company shall comply with the applicable tender offer
rules, including the requirements of Section 14(e) and Rule 14e-1 under the
Exchange Act, and all other applicable securities laws and regulations in
connection with any Asset Sale Offer and will be deemed not to be in violation
of any of its covenants under this Indenture to the extent such compliance is in
conflict with such covenants.
SECTION 1017. Transactions with Affiliates.
The Company shall not, and shall not permit any of its
Restricted Subsidiaries to, directly or indirectly, enter into or permit to
exist any transaction or series of related transactions (including, but not
limited to, the purchase, sale or exchange of property, the making of any
Investment, the giving of any Guarantee or the rendering of any service) with
any Affiliate of the Company or such Restricted Subsidiary, as the case may be,
unless (i) such transaction or series of related transactions is on terms that
taken as a whole are no less
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favorable to the Company or such Restricted Subsidiary than those that could be
obtained in a comparable arm's-length transaction with a Person that is not such
an Affiliate and (ii) (a) with respect to a transaction or series of related
transactions that involves aggregate payments equal to, or in excess of, $5.0
million but less than $10.0 million, the Company delivers to the Trustee an
Officers' Certificate stating that such transaction or series of related
transactions complies with clause (i) above; and (b) with respect to a
transaction or series of related transactions that involves aggregate payments
equal to, or in excess of, $10.0 million, the Company delivers to the Trustee an
Officers' Certificate stating that such transaction or series of related
transactions complies with clause (i) above, and either (x) such transaction or
series of related transactions is approved by a majority of the Board of
Directors (including a majority of the Disinterested Directors, or in the event
there is only one Disinterested Director, by such Disinterested Director), which
approval is set forth in a resolution delivered to the Trustee or (y) the
Company obtains an opinion from a nationally recognized investment banking firm,
accounting firm or appraisal firm stating that such transaction or series of
related transactions complies with clause (i) above or is fair to the Company or
such Restricted Subsidiary from a financial point of view and delivers such
opinion to the Trustee.
Notwithstanding the foregoing, this Section 1017 shall not
apply to (i) any transaction entered into by or among the Company or one of its
Restricted Subsidiaries with one or more Restricted Subsidiaries of the Company,
(ii) any Restricted Payment not prohibited by Section 1012, or any Permitted
Investment, (iii) the payment of reasonable and customary fees to directors of
the Company and its Restricted Subsidiaries who are not employees of the Company
or its Subsidiaries, (iv) loans or advances made to directors, officers or
employees of the Company or any Restricted Subsidiary, or Guarantees in respect
thereof or otherwise made on their behalf (including any payments under such
Guarantees), in respect of travel, entertainment or moving-related expenses
incurred in the ordinary course of business, in an aggregate principal amount
not to exceed $500,000 in any fiscal year, and (v) the granting and performance
of registration rights for shares of Capital Stock of the Company; (vi)
transactions pursuant to the Administrative Services Agreement between the
Company and Associated as in effect on the Issue Date, and as such agreement may
be amended from time to time in a manner no less favorable to the holders of the
Notes; (vii) transactions pursuant to the Technical Services Agreement between
the Company and NTT America, Inc. as in effect on the Issue Date, and as such
agreement may be amended from time to time in a manner no less favorable to the
holders of the Notes; (viii) transactions pursuant to the Stockholders Agreement
between the Company, Nippon Telegraph and Telephone Corporation and certain
other stockholders of the Company as in effect on the Issue Date, and as such
agreement may be amended from time to time in a manner no less favorable to the
holders of the Notes.
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SECTION 1018. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with
any term, provision or condition set forth in Section 803 or Sections 1007
through 1017, inclusive, if before or after the time for such compliance the
Holders of at least a majority in principal amount of the Outstanding Notes, by
Act of such Holders (including by way of consents obtained with a purchase of,
or a tender or exchange offer for, Notes), waive such compliance in such
instance with such term, provision or condition, but no such waiver shall extend
to or affect such term, provision or condition except to the extent so expressly
waived, and, until such waiver shall become effective, the obligations of the
Company and the duties of the Trustee in respect of any such term, provision or
condition shall remain in full force and effect.
ARTICLE ELEVEN
REDEMPTION OF NOTES
SECTION 1101. Right of Redemption.
The Notes may be redeemed, at the election of the Company, as
a whole or from time to time in part, at any time after [ ], 2002
subject to the conditions and at the Redemption Prices specified in the form of
Note, together with accrued and unpaid interest to the Redemption Date.
In addition, up to 35% of the originally issued principal
amount of Notes may be redeemed, at the election of the Company, at any time on
or prior to [ ], 2000 subject to the conditions and at the Redemption Price
specified in the form of Note, together with accrued and unpaid interest to the
Redemption Date, with the Net Cash Proceeds of (a) one or more Public Equity
Offerings of Common Stock of the Company (other than the Equity Offerings) or
(b) a sale or series of related sales by the Company of its Common Stock to one
or more Strategic Equity Investors resulting in gross proceeds of not less than
$65 million (other than the Transactions and other than in connection with a
Change of Control); provided that at least 65% of the originally issued
principal amount of Notes remains Outstanding immediately after giving effect to
such redemption.
SECTION 1102. Applicability of Article.
Redemption of Notes at the election of the Company or
otherwise, as permitted or required by any provision of this Indenture, shall be
made in accordance with such provision and this Article.
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SECTION 1103. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Notes pursuant to
Section 1101 shall be evidenced by a Board Resolution. In case of any redemption
at the election of the Company, the Company shall, at least 60 days prior to the
Redemption Date fixed by the Company (unless a shorter notice shall be
satisfactory to the Trustee), notify the Trustee of such Redemption Date and of
the principal amount of Notes to be redeemed and shall deliver to the Trustee
such documentation and records as shall enable the Trustee to select the Notes
to be redeemed pursuant to Section 1104.
SECTION 1104. Selection by Trustee of Notes to Be Redeemed.
If less than all the Notes are to be redeemed, the particular
Notes to be redeemed shall be selected not more than 60 days prior to the
Redemption Date by the Trustee, from the Outstanding Notes not previously called
for redemption in compliance with the requirements of the principal national
securities exchange, if any, on which the Notes are listed or, if the Notes are
not then listed on a national securities exchange, on a pro rata basis or by lot
or any other method as the Trustee shall deem fair and appropriate and which may
provide for the selection for redemption of portions of the principal of Notes;
provided, however, that no such partial redemption shall reduce the portion of
the principal amount of a Note not redeemed to less than $1,000.
The Trustee shall promptly notify the Company in writing of
the Notes selected for redemption and, in the case of any Notes selected for
partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to redemption of Notes shall relate,
in the case of any Note redeemed or to be redeemed only in part, to the portion
of the principal amount of such Note that has been or is to be redeemed.
SECTION 1105. Notice of Redemption.
Notice of redemption shall be given in the manner provided for
in Section 106 not less than 30 nor more than 60 days prior to the Redemption
Date, to each Holder of Notes to be redeemed.
All notices of redemption shall state:
(1) the Redemption Date,
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(2) the Redemption Price and the amount of accrued interest to
the Redemption Date payable as provided in Section 1107, if any,
(3) if less than all Outstanding Notes are to be redeemed, the
identification (and, in the case of a partial redemption, the principal
amounts) of the particular Notes to be redeemed,
(4) in case any Note is to be redeemed in part only, the
notice that relates to such Note shall state that on and after the
Redemption Date, upon surrender of such Note, the holder will receive,
without charge, a new Note or Notes of authorized denominations for the
principal amount thereof remaining unredeemed,
(5) that on the Redemption Date the Redemption Price (and
accrued interest, if any, to the Redemption Date payable as provided in
Section 1107) will become due and payable upon each such Note, or the
portion thereof, to be redeemed, and that interest thereon will cease
to accrue on and after said date, and
(6) the place or places where such Notes are to be surrendered
for payment of the Redemption Price and accrued interest, if any.
Notice of redemption of Notes to be redeemed at the election
of the Company shall be given by the Company or, at the Company's request, by
the Trustee in the name and at the expense of the Company.
SECTION 1106. Deposit of Redemption Price.
Prior to 10:00 a.m., New York City time, on any Redemption
Date, the Company shall deposit with the Trustee or with a Paying Agent (or, if
the Company is acting as its own Paying Agent, segregate and hold in trust as
provided in Section 1003) an amount of money sufficient to pay the Redemption
Price of, and accrued interest on, all the Notes that are to be redeemed on that
date.
SECTION 1107. Notes Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Notes
so to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified (together with accrued interest, if any, to
the Redemption Date), and from and after such date (unless the Company shall
default in the payment of the Redemption Price and accrued interest) such Notes
shall cease to bear interest. Upon surrender of any such Note for redemption in
accordance with said notice, such Note shall be paid by the Company at the
Redemption Price, together with accrued interest, if any, to the Redemption
Date; provided, however, that installments of interest whose Stated Maturity is
on or prior to
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the Redemption Date shall be payable to the Holders of such Notes, or one or
more Predecessor Notes, registered as such at the close of business on the
relevant Record Dates according to their terms and the provisions of Section
307.
On and after any Redemption Date, if money sufficient to pay
the Redemption Price of any accrued and unpaid interest on Notes called for
redemption shall have been made available in accordance with Section 1106, the
Notes called for redemption will cease to accrue interest and the only right of
the Holders of such Notes will be to receive payment of the Redemption Price of
and, subject to the provision in the preceding paragraph, any accrued and unpaid
interest on such Notes to the Redemption Date.
If any Note called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium, if any) shall,
until paid, bear interest from the Redemption Date at the rate borne by the
Notes.
SECTION 1108. Notes Redeemed in Part.
Any Note that is to be redeemed only in part shall be
surrendered at the office or agency of the Company maintained for such purpose
pursuant to Section 1002 (with, if the Company or the Trustee so requires, due
endorsement by, or a written instrument of transfer in form satisfactory to the
Company and the Trustee duly executed by, the Holder thereof or such Holders
attorney duly authorized in writing), and the Company shall execute, and the
Trustee shall authenticate and deliver to the Holder of such Note without
service charge, a new Note or Notes, of any authorized denomination as requested
by such Holder, in aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Note so surrendered.
ARTICLE TWELVE
SECURITY FOR THE NOTES
SECTION 1201. Security.
(a) On the Closing Date, the Company shall (i) enter into the
Pledge Agreement and comply with the terms and provisions thereof and (ii)
purchase the Pledged Securities to be pledged to the Trustee for the benefit of
the Holders in such amount as will be sufficient upon receipt of scheduled
interest and/or principal payments of such Pledged Securities, in the opinion of
a nationally recognized firm of independent public accountants or nationally
recognized investment banking firm selected by the Company, to provide for
payment in full of the first six scheduled interest payments due on the Notes.
The Pledged Securities shall be pledged by the Company to the Trustee for the
benefit of the Holders and
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shall be held by the Trustee in the Pledge Account pending disposition pursuant
to the Pledge Agreement.
(b) Each Holder, by its acceptance of a Note, consents and
agrees to the terms of the Pledge Agreement (including, without limitation, the
provisions providing for foreclosure and release of the Pledged Securities) as
the same may be in effect or may be amended from time to time in accordance with
its terms, and authorizes and directs the Trustee to enter into the Pledge
Agreement and to perform its respective obligations and exercise its respective
rights thereunder in accordance therewith. The Company will do or cause to be
done all such acts and things as may be reasonably necessary or proper, or as
may be required by the provisions of the Pledge Agreement, to assure and confirm
to the Trustee the security interest in the Pledged Securities contemplated
hereby, by the Pledge Agreement or any part thereof, as from time to time
constituted, so as to render the same available for the security and benefit of
this Indenture and of the Notes secured hereby, according to the intent and
purposes herein expressed. The Company shall take, or shall cause to be taken,
upon request of the Trustee, any and all actions reasonably required to cause
the Pledge Agreement to create and maintain, as security for the obligations of
the Company under this Indenture and the Notes, valid and enforceable first
priority liens in and on all the Pledged Securities, in favor of the Trustee,
superior to and prior to the rights of third Persons and subject to no other
Liens.
(c) The release of any Pledged Securities pursuant to the
Pledge Agreement will not be deemed to impair the security under this Indenture
in contravention of the provisions hereof if and to the extent the Pledged
Securities are released pursuant to this Indenture and the Pledge Agreement. To
the extent applicable, the Company shall cause TIA Section 314(d) relating to
the release of property or securities from the Lien and security interest of the
Pledge Agreement and relating to the substitution therefor of any property or
securities to be subjected to the Lien and security interest of the Pledge
Agreement to be complied with. Any certificate or opinion required by TIA
Section 314(d) may be made by an officer of the Company, except in cases where
TIA Section 314(d) requires that such certificate or opinion be made by an
independent Person, which Person shall be an independent engineer, appraiser or
other expert selected by the Company.
(d) The Company shall cause TIA Section 314(b), relating to
opinions of counsel regarding the Lien under the Pledge Agreement, to be
complied with. The Trustee may, to the extent permitted by Section 603 hereof,
accept as conclusive evidence of compliance with the foregoing provisions the
appropriate statements contained in such instruments.
(e) The Trustee may, in its sole discretion and without the
consent of the Holders, on behalf of the Holders, take all actions it deems
necessary or appropriate in order to (i) enforce any of the terms of the Pledge
Agreement and (ii) collect and receive any and
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all amounts payable in respect of the obligations of the Company thereunder. The
Trustee shall have power to institute and to maintain such suits and proceedings
as the Trustee may reasonably deem expedient to preserve or protect its
interests and the interests of the Holders in the Pledged Securities.
ARTICLE THIRTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1301. Company's Option to Effect Defeasance or
Covenant Defeasance.
The Company may, at its option by Board Resolution, at any
time, with respect to the Notes, elect to have either Section 1302 or Section
1303 be applied to all Outstanding Notes and Subsidiary Guarantees upon
compliance with the conditions set forth below in this Article Thirteen. Either
Section 1302 or Section 1303 may be applied to the Notes to any Redemption Date
or the Stated Maturity of the Notes.
SECTION 1302. Defeasance and Discharge.
Upon the Company's exercise under Section 1301 of the option
applicable to this Section 1302, the Company shall be deemed to have been
discharged from its obligations with respect to all Outstanding Notes, and the
Subsidiary Guarantors, if any, shall be deemed to have been discharged from
their respective obligations under their respective Subsidiary Guarantees, on
the date the conditions set forth in Section 1304 are satisfied (hereinafter,
"defeasance"). For this purpose, such defeasance means that the Company shall be
deemed to have paid and discharged the entire indebtedness represented by the
Outstanding Notes, which thereafter shall be deemed to be "Outstanding" only for
the purposes of Section 1305 and the other Sections of this Indenture referred
to in (A) and (B) below, and the Company and the Subsidiary Guarantors, if any,
shall be deemed to have satisfied all its other obligations under such Notes and
this Indenture insofar as such Notes are concerned (and the Trustee, at the
expense of the Company, shall execute proper instruments acknowledging the
same), except for the following, which shall survive until otherwise terminated
or discharged hereunder: (A) the rights of Holders of Outstanding Notes to
receive, solely from the trust fund described in Section 1304 and as more fully
set forth in such Section, payments in respect of the principal of (and premium,
if any, on) and interest on such Notes when such payments are due, (B) the
Company's obligations with respect to such Notes under Sections 304, 305, 306,
1002 and 1003, (C) the rights, powers, trusts, duties and immunities of the
Trustee hereunder and (D) this Article Thirteen; provided, however, that the
Company's rights pursuant to Section 1101 shall not be terminated or discharged
hereunder. Subject to compliance with this Article Thirteen, the Company may
exercise its option under
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this Section 1302 notwithstanding the prior exercise of its option under Section
1303 with respect to the Notes.
SECTION 1303. Covenant Defeasance.
Upon the Company's exercise under Section 1301 of the option
applicable to this Section 1303, the Company and the Subsidiary Guarantors, if
any, shall be released from their respective obligations under any covenant
contained in Section 801(c) and Section 803 and in Sections 1007 through 1017
with respect to the Outstanding Notes on and after the date the conditions set
forth below are satisfied (hereinafter, "covenant defeasance"), and the Notes
shall thereafter be deemed not to be "Outstanding" for the purposes of any
direction, waiver, consent or declaration or Act of Holders (and the
consequences of any thereof) in connection with such covenants, but shall
continue to be deemed "Outstanding" for all other purposes hereunder. For this
purpose, such covenant defeasance means that, with respect to the Outstanding
Notes, the Company and the Subsidiary Guarantors, if any, may omit to comply
with and shall have no liability in respect of any term, condition or limitation
set forth in any such covenant, whether directly or indirectly, by reason of any
reference elsewhere herein to any such covenant or by reason of any reference in
any such covenant to any other provision herein or in any other document and
such omission to comply shall not constitute a Default or an Event of Default
under Section 501, but, except as specified above, the remainder of this
Indenture and such Notes shall be unaffected thereby.
SECTION 1304. Conditions to Defeasance or Covenant
Defeasance.
The following shall be the conditions to application of either
Section 1302 or Section 1303 to the Outstanding Notes:
(1) either (i) all Outstanding Notes (except lost, stolen or
destroyed Notes which have been replaced or paid) shall have been
delivered to the Trustee for cancellation or (ii) all such Notes not
theretofore delivered to the Trustee for cancellation shall have become
due and payable, shall become due and payable within one year or are to
be called for redemption within one year under irrevocable arrangements
satisfactory to the Trustee for the giving of notice of redemption by
the Trustee in the name, and at the expense, of the Company, and the
Company shall irrevocably have deposited or caused to be deposited with
the Trustee (or another trustee satisfying the requirements of Section
609 who shall agree to comply with the provisions of this Article
Thirteen applicable to it) as trust funds in trust for the purpose of
making the following payments, specifically pledged as security for,
and dedicated solely to, the benefit of the Holders of such Notes, (A)
money in an amount, or (B) U.S. Government Obligations that through the
scheduled payment of principal and interest in respect thereof in
accordance with their terms will provide, not later than one day before
the due date of any payment, money in an amount, or
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(C) a combination thereof, sufficient, in the opinion of a nationally
recognized firm of independent public accountants or a nationally
recognized investment banking firm expressed in a written certification
thereof delivered to the Trustee, to pay and discharge, and which shall
be applied by the Trustee (or other qualifying trustee) to pay and
discharge, the principal of (and premium, if any) and interest on the
Outstanding Notes on the Stated Maturity (or Redemption Date, if
applicable) of such principal (and premium, if any) or installment of
interest on the day on which such payments are due and payable in
accordance with the terms of this Indenture and of such Notes; provided
that the Trustee shall have been irrevocably instructed to apply such
money or the proceeds of such U.S. Government Obligations to said
payments with respect to the Notes. Before such a deposit, the Company
may give to the Trustee, in accordance with Section 1103 hereof, a
notice of its election to redeem all of the Outstanding Notes at a
future date in accordance with Article Eleven hereof, which notice
shall be irrevocable. Such irrevocable redemption notice, if given,
shall be given effect in applying the foregoing.
(2) No Default or Event of Default with respect to the Notes
shall have occurred and be continuing on the date of such deposit
(other than a Default or Event of Default resulting from the incurrence
of Debt, the proceeds of which are applied to such deposit) or, insofar
as paragraphs (g) and (h) of Section 501 hereof are concerned, at any
time during the period ending on the 91st day after the date of such
deposit (it being understood that this condition shall not be deemed
satisfied until the expiration of such period).
(3) Such defeasance or covenant defeasance shall not result in
a breach or violation of, or constitute a default under, this Indenture
(other than a Default or Event of Default resulting from the incurrence
of Debt, the proceeds of which are applied to such deposit) or any
other material agreement or instrument to which the Company is a party
or by which it is bound.
(4) In the case of an election under Section 1302 and in the
event that such election shall occur more than twelve months prior to
the Stated Maturity of the Outstanding Notes, the Company shall have
delivered to the Trustee an Opinion of Counsel stating that (x) the
Company has received from, or there has been published by, the Internal
Revenue Service a ruling, or (y) since November , 1997, there has been
a change in the applicable federal income tax law, in either case to
the effect that, and based thereon such opinion shall state to the
effect that, the Holders of the Outstanding Notes will not recognize
income, gain or loss for federal income tax purposes as a result of
such defeasance and will be subject to federal income tax on the same
amounts, in the same manner and at the same times as would have been
the case if such defeasance had not occurred.
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(5) In the case of an election under Section 1303 and in the
event that such election shall occur more than twelve months prior to
the Stated Maturity of the Outstanding Notes, the Company shall have
delivered to the Trustee an Opinion of Counsel to the effect that the
Holders of the Outstanding Notes will not recognize income, gain or
loss for federal income tax purposes as a result of such covenant
defeasance and will be subject to federal income tax on the same
amounts, in the same manner and at the same times as would have been
the case if such covenant defeasance had not occurred.
(6) The Company shall have delivered to the Trustee an Opinion
of Counsel to the effect that after the 91st day following the
Company's deposit, the trust funds shall not be subject to the effect
of any applicable bankruptcy, insolvency, reorganization, or similar
laws affecting creditors' rights generally.
(7) The Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent provided for relating to either the defeasance
under Section 1302 or the covenant defeasance under Section 1303 (as
the case may be) have been complied with. In rendering such Opinion of
Counsel, counsel may rely on such Officers' Certificate as to any
matters of fact (including as to compliance with the foregoing clauses
(1), (2) and (3)).
SECTION 1305. Deposited Money and U.S. Government Obligations
to Be Held in Trust; Other Miscellaneous Provisions.
Subject to the provisions of the last paragraph of Section
1003, all money and U.S. Government Obligations (including the proceeds thereof)
deposited with the Trustee (or other qualifying trustee, collectively for
purposes of this Section 1305, the "Trustee") pursuant to Section 1304 in
respect of the Outstanding Notes shall be held in trust and applied by the
Trustee, in accordance with the provisions of such Notes and this Indenture, to
the payment, either directly or through any Paying Agent (including the Company
acting as its own Paying Agent) as the Trustee may determine, to the Holders of
such Notes of all sums due and to become due thereon in respect of principal
(and premium, if any) and interest, but such money need not be segregated from
other funds except to the extent required by law.
The Company shall pay and indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against the U.S. Governmental
Obligations deposited pursuant to Section 1304 or the principal and interest
received in respect thereof other than any such tax, fee or other charge that by
law is for the account of the Holders of the Outstanding Notes.
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Anything in this Article Thirteen to the contrary
notwithstanding, the Trustee shall deliver or pay to the Company from time to
time upon Company Request any money or U.S. Government Obligations held by it as
provided in Section 1304 that, in the opinion of a nationally recognized firm of
independent public accountants or a nationally recognized investment banking
firm expressed in a written certification thereof delivered to the Trustee, are
in excess of the amount thereof that would then be required to be deposited to
effect an equivalent defeasance or covenant defeasance, as applicable, in
accordance with this Article.
SECTION 1306. Reinstatement.
If the Trustee or any Paying Agent is unable to apply any
money in accordance with Section 1305 by reason of any order or judgment of any
court or governmental authority enjoining, restraining or otherwise prohibiting
such application, then the Company's obligations under this Indenture and the
Notes shall be revived and reinstated as though no deposit had occurred pursuant
to Section 1302 or 1303, as the case may be, until such time as the Trustee or
Paying Agent is permitted to apply all such money in accordance with Section
1305; provided, however, that if the Company makes any payment of principal of
(or premium, if any) or interest on any Note following the reinstatement of its
obligations, the Company shall be subrogated to the rights of the Holders of
such Notes to receive such payment from the money held by the Trustee or Paying
Agent.
97
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed and attested, all as of the day and year first
above written.
TELIGENT, INC.
By
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Title:
Attest:
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Title:
FIRST UNION NATIONAL BANK
By
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Title:
Attest:
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Title:
