Exhibit 4.1
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PRICE COMMUNICATIONS CELLULAR HOLDINGS, INC.,
as Issuer of the Notes,
PRICE COMMUNICATIONS CORPORATION,
as Issuer of the Common Stock
and
BANK OF MONTREAL TRUST COMPANY,
as Trustee
----------------------
INDENTURE
Dated as of [ ], 1998
----------------------
$[ ]
[ ]% Senior Exchangeable Payable-in-Kind Notes due 2008
(Exchangeable for Shares of Common Stock of Price Communications
Corporation)
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CROSS-REFERENCE TABLE
Trust Indenture Act Indenture
Section Section
------- -------
310(a)(1)................................................... 7.10
(a)(2)................................................... 7.10
(a)(3)................................................... N.A.
(a)(4)................................................... N.A.
(a)(5)................................................... 7.10
(b)...................................................... 7.10
(c)...................................................... N.A.
311(a)...................................................... 7.11
(b)...................................................... 7.11
(c)...................................................... N.A.
312(a)...................................................... 2.05
(b)...................................................... 12.03
(c)...................................................... 12.03
313(a)...................................................... 7.06
(b)...................................................... 7.06
(c)...................................................... 7.06
(d)...................................................... 7.06
314(a)(1)................................................... 4.09
(a)(2)................................................... N.A.
(a)(3)................................................... 4.09
(a)(4)................................................... 4.08
(b)...................................................... 10.03
(c)(1)................................................... 12.04
(c)(2)................................................... 12.04
(c)(3)................................................... N.A.
(d)...................................................... 10.06
(e)...................................................... 12.05
(f)...................................................... N.A.
315(a)...................................................... 7.01
(b)...................................................... 7.05
(c)...................................................... 7.01
(d)...................................................... 7.01
(e)...................................................... 6.13
316(a)(1)(A)................................................ 6.11
(a)(1)(B)................................................ 6.12
(a)(2)................................................... N.A.
(b)...................................................... 6.08
(c)...................................................... N.A.
317(a)(1)................................................... 6.03
----------
"N.A." means "Not Applicable."
Note: This Cross-Reference Table shall not, for any purpose, be deemed to be a
part of this Indenture.
CROSS-REFERENCE TABLE
(continued)
Trust Indenture Act Indenture
Section Section
------- -------
(a)(2)...................................................... 6.04
(b)...................................................... 2.04
318(a)...................................................... 12.01
(b)...................................................... N.A.
(c)...................................................... N.A.
----------
"N.A." means "Not Applicable."
Note: This Cross-Reference Table shall not, for any purpose, be deemed to be a
part of this Indenture.
TABLE OF CONTENTS
Page
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ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions................................................1
SECTION 1.02. Incorporation by Reference of the Trust Indenture
Act.....................................................21
SECTION 1.03. Rules of Construction.....................................21
ARTICLE 2
THE SECURITIES
SECTION 2.01. Form and Dating...........................................22
SECTION 2.02. Execution and Authentication..............................23
SECTION 2.03. Registrar and Paying Agent................................23
SECTION 2.04. Paying Agent to Hold Assets in Trust......................24
SECTION 2.05. Securityholder Lists......................................24
SECTION 2.06. Transfer and Exchange.....................................25
SECTION 2.07. Replacement Securities....................................27
SECTION 2.08. Outstanding Securities....................................27
SECTION 2.09. Treasury Securities.......................................28
SECTION 2.10. Temporary Securities......................................28
SECTION 2.11. Cancellation..............................................28
SECTION 2.12. Defaulted Interest........................................29
ARTICLE 3
REDEMPTION
SECTION 3.01. Optional Redemption.......................................30
SECTION 3.02. Notices to Trustee........................................30
SECTION 3.03. Selection of Securities to Be Redeemed....................31
SECTION 3.04. Notice of Redemption......................................31
SECTION 3.05. Effect of Notice of Redemption............................32
SECTION 3.06. Deposit of Redemption Price...............................32
SECTION 3.07. Securities Redeemed in Part...............................33
ARTICLE 4
COVENANTS
SECTION 4.01. [Reserved]................................................33
SECTION 4.02. Payment of Securities.....................................33
SECTION 4.03. Maintenance of Office or Agency...........................33
SECTION 4.04. Limitation on Restricted Payments.........................34
SECTION 4.05. Corporate Existence.......................................35
SECTION 4.06. Payment of Taxes and Other Claims.........................36
SECTION 4.07. Maintenance of Properties and Insurance...................36
SECTION 4.08. Compliance Certificate; Notice of Default.................36
SECTION 4.09. Reports...................................................37
SECTION 4.10. Limitation on Status as Investment Company................37
SECTION 4.11. Limitation on Transactions with Related Persons...........37
SECTION 4.12. Limitation on Incurrence of Additional
Indebtedness............................................38
SECTION 4.13. Limitations on Restricting Subsidiary Dividends...........41
SECTION 4.14. Limitations on Liens......................................42
SECTION 4.15. Limitation on Asset Sales and Sales of Subsidiary
Stock...................................................42
SECTION 4.16. Waiver of Stay, Extension or Usury Laws...................48
SECTION 4.17. [Reserved]................................................49
SECTION 4.18. Limitation on Lines of Business...........................49
SECTION 4.19. Restriction on Sale and Issuance of Subsidiary
Stock...................................................49
SECTION 4.20. Limitation on Pledged Shares..............................49
ARTICLE 5
SUCCESSOR CORPORATION
SECTION 5.01. Limitation on Merger, Sale or Consolidation...............49
SECTION 5.02. Successor Corporation Substituted.........................50
ARTICLE 6
EVENTS OF DEFAULT AND REMEDIES
SECTION 6.01. Events of Default.........................................51
SECTION 6.02. Acceleration of Maturity Date; Rescission and
Annulment...............................................52
SECTION 6.03. Collection of Indebtedness and Suits for
Enforcement by Trustee..................................54
SECTION 6.04. Trustee May File Proofs of Claim..........................55
SECTION 6.05. Trustee May Enforce Claims Without Possession of
Securities..............................................55
SECTION 6.06. Priorities................................................56
SECTION 6.07. Limitation on Suits.......................................56
SECTION 6.08. Unconditional Right of Holders to Receive
Principal, Premium and Interest.........................57
SECTION 6.09. Rights and Remedies Cumulative............................57
SECTION 6.10. Delay or Omission Not Waiver..............................57
SECTION 6.11. Control by Holders........................................57
SECTION 6.12. Waiver of Past Default....................................58
SECTION 6.13. Undertaking for Costs.....................................58
SECTION 6.14. Restoration of Rights and Remedies........................59
ARTICLE 7
TRUSTEE
SECTION 7.01. Duties of Trustee.........................................59
SECTION 7.02. Rights of Trustee.........................................60
SECTION 7.03. Individual Rights of Trustee..............................61
SECTION 7.04. Trustee's Disclaimer......................................61
SECTION 7.05. Notice of Default.........................................61
SECTION 7.06. Reports by Trustee to Holders.............................62
SECTION 7.07. Compensation and Indemnity................................62
SECTION 7.08. Replacement of Trustee....................................63
SECTION 7.09. Successor Trustee by Merger, Etc..........................64
SECTION 7.10. Eligibility; Disqualification.............................64
SECTION 7.11. Preferential Collection of Claims Against Company.........64
ARTICLE 8
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
SECTION 8.01. Option to Effect Legal Defeasance or Covenant
Defeasance..............................................64
SECTION 8.02. Legal Defeasance and Discharge............................64
SECTION 8.03. Covenant Defeasance.......................................65
SECTION 8.04. Conditions to Legal or Covenant Defeasance................65
SECTION 8.05. Deposited U.S. Legal Tender Equivalents and U.S.
Government Obligations to Be Held in Trust;
Other Miscellaneous Provisions..........................67
SECTION 8.06. Repayment to the Company..................................67
SECTION 8.07. Reinstatement.............................................68
ARTICLE 9
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.01. Supplemental Indentures Without Consent of Holders........68
SECTION 9.02. Amendments, Supplemental Indentures and Waivers
with Consent of Holders.................................69
SECTION 9.03. Compliance with TIA.......................................70
SECTION 9.04. Revocation and Effect of Consents.........................70
SECTION 9.05. Notation on or Exchange of Securities.....................71
SECTION 9.06. Trustee to Sign Amendments, Etc...........................71
ARTICLE 10
EXCHANGE OF SECURITIES
SECTION 10.01. Mandatory Exchange........................................72
SECTION 10.02. Exchange Procedures.......................................72
SECTION 10.03. Compliance with Law.......................................72
SECTION 10.04. Adjustment of Exchange Price..............................72
SECTION 10.05. No Adjustment.............................................76
SECTION 10.06. Adjustment for Tax Purposes...............................76
SECTION 10.07. Notice of Adjustment......................................76
SECTION 10.08. Notice of Certain Transactions............................76
SECTION 10.09. Trustee's Disclaimer......................................77
SECTION 10.10. Fractional Shares.........................................77
SECTION 10.11. Taxes on Exchange.........................................77
SECTION 10.12. Satisfaction of Obligations under Securities..............77
ARTICLE 11
RIGHT TO REQUIRE REPURCHASE
SECTION 11.01. Repurchase of Securities at Option of the Holder
upon a Change of Control................................78
ARTICLE 12
MISCELLANEOUS
SECTION 12.01. TIA Controls..............................................80
SECTION 12.02. Notices...................................................80
SECTION 12.03. Communications by Holders with Other Holders..............82
SECTION 12.04. Certificate and Opinion as to Conditions Precedent........82
SECTION 12.05. Statements Required in Certificate or Opinion.............82
SECTION 12.06. Rules by Trustee, Paying Agent, Registrar.................82
SECTION 12.07. Legal Holidays............................................83
SECTION 12.08. Governing Law.............................................83
SECTION 12.09. No Adverse Interpretation of Other Agreements.............83
SECTION 12.10. No Recourse Against Others................................83
SECTION 12.11. Successors................................................84
SECTION 12.12. Duplicate Originals.......................................84
SECTION 12.13. Severability..............................................84
SECTION 12.14. Table of Contents, Headings, Etc..........................84
Exhibit A Form of Security
INDENTURE, dated as of [ ], 1998 by and among Price Communications
Cellular Holdings, Inc., a [New York] corporation (the "Company"), Price
Communications Corporation ("PCC"), a [New York] corporation, and Bank of
Montreal Trust Company, a New York banking corporation (the "Trustee").
Each party hereto agrees as follows for the benefit of the other
parties and for the equal and ratable benefit of the Holders of the Company's [
]% Senior Exchangeable Payable-in-Kind Notes due 2008:
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions.
"Acceptance Amount" shall have the meaning specified in Section
4.15.
"Accumulated Amount" shall have the meaning specified in Section
4.15.
"Acquired Person" shall have the meaning specified in the definition
of "Permitted Investment".
"Affiliate" means, with respect to any specified Person, (i) any
other Person directly or indirectly controlling or controlled by, or under
direct or indirect common control with, such specified Person or (ii) any
officer, director, or controlling stockholder of such other Person. For purposes
of this definition, the term "control" means the power to direct the management
and policies of a Person, directly or through one or more intermediaries,
whether through the ownership of voting securities, by contract, or otherwise,
or without limiting the foregoing, the beneficial ownership of 10% or more of
the voting power of the voting common equity of such Person (on a fully diluted
basis) or of warrants or other rights to acquire such equity (whether or not
presently exercisable).
"Agent" means any Registrar, Paying Agent or co-Registrar.
"Annualized Operating Cash Flow" on any date means, with respect to
any Person, the Operating Cash Flow for the Reference Period multiplied by four.
"Annualized Operating Cash Flow Ratio" on any date (the "Transaction
Date") means, with respect to any Person and its Subsidiaries, the ratio of (i)
consolidated Indebtedness of such Person and its Subsidiaries on the Transaction
Date (after giving pro forma effect
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to the Incurrence of any Indebtedness on such Transaction Date) divided by (ii)
the aggregate amount of Annualized Operating Cash Flow of such Person
(determined on a pro forma basis after giving effect to all acquisitions or
dispositions of businesses made by such Person and its Subsidiaries from the
beginning of the Reference Period through the Transaction Date as if such
acquisition or disposition had occurred at the beginning of such Reference
Period); provided that for purposes of such computation, in calculating
Annualized Operating Cash Flow and consolidated Indebtedness, (a) the
transaction giving rise to the need to calculate the Annualized Operating Cash
Flow Ratio will be assumed to have occurred (on a pro forma basis) on the first
day of the Reference Period; (b) the Incurrence of any Indebtedness during the
Reference Period or subsequent thereto and on or prior to the Transaction Date
(and the application of the proceeds therefrom to the extent used to retire
Indebtedness or to acquire businesses) will be assumed to have occurred (on a
pro forma basis) on the first day of such Reference Period; (c) Consolidated
Interest Expense attributable to any Indebtedness (whether existing or being
incurred) bearing a floating interest rate shall be computed as if the rate in
effect on the Transaction Date had been the applicable rate for the entire
period; and (d) all members of the consolidated group of such Person on the
Transaction Date that were acquired during the Reference Period or thereafter
and on or prior to the Transaction Date shall be deemed to be members of the
consolidated group of such Person for the entire Reference Period. When the
foregoing definition is used in connection with the Company and its Restricted
Subsidiaries, references to a Person and its Subsidiaries in the foregoing
definition shall be deemed to refer to the Company and its Restricted
Subsidiaries and when used in connection with any Restricted Subsidiary and its
Subsidiaries shall be deemed to refer to such Restricted Subsidiary and its
Subsidiaries that are Restricted Subsidiaries.
"Asset Sale" shall have the meaning specified in Section 4.15.
"Asset Sale Offer" shall have the meaning specified in Section 4.15.
"Asset Sale Offer Amount" shall have the meaning specified in
Section 4.15.
"Asset Sale Offer Period" shall have the meaning specified in
Section 4.15.
"Asset Sale Offer Price" shall have the meaning specified in Section
4.15.
"Asset Sale Purchase Date" shall have the meaning specified in
Section 4.15.
"Bankruptcy Law" means Title 11, U.S. Code, or any similar Federal,
state or foreign law for the relief of debtors.
"Board of Directors" means, with respect to any Person, the Board of
Directors of such Person or any committee of the Board of Directors of such
Person authorized, with
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respect to any particular matter, to exercise the power of the Board of
Directors of such Person.
"Board Resolution" means, with respect to any Person, a duly adopted
resolution of the Board of Directors of such Person.
"Business Day" means a day that is not a Legal Holiday.
"Capitalized Lease Obligations" means obligations under a lease that
are required to be capitalized for financial reporting purposes in accordance
with GAAP, and the amount of Indebtedness represented by such obligations shall
be the capitalized amount of such obligations, as determined in accordance with
GAAP.
"Capital Stock" means, with respect to any Person, any capital stock
of such Person and shares, interests, participations or other ownership
interests (however designated) of any Person and any rights (other than debt
securities convertible into capital stock), warrants and options to purchase any
of the foregoing, including (without limitation) each class of common stock and
preferred stock of such Person if such Person is a corporation and each general
and limited partnership interest of such Person if such Person is a partnership.
"Cash Equivalents" means (i) securities issued or directly and fully
guaranteed or insured by the United States of America or any agency or
instrumentality thereof (provided that the full faith and credit to the United
States of America is pledged in support thereof) in each case maturing within
one year after the date of acquisition, (ii) time deposits and certificates of
deposit and commercial paper issued by the parent corporation of any domestic
commercial bank of recognized standing having capital and surplus in excess of
$500 million and commercial paper issued by others rated at least A-2 or the
equivalent thereof by S&P or at least P-2 or the equivalent thereof by Moody's
and in each case maturing within one year after the date of acquisition and
(iii) investments in money market funds substantially all of whose assets
comprise securities of the types described in clauses (i) and (ii) above.
"Cellular System" means a domestic public cellular mobile radio
telecommunications system
"Change of Control" means (i) other than any transaction in which
the resulting transferee Person need not assume the Securities as provided in
the proviso to clause (i)(b) of Section 5.01, any sale, transfer or other
conveyance, whether direct or indirect, of a majority of the fair market value
of the assets of the Company or Parent, on a consolidated basis, in one
transaction or a series of related transactions, if, immediately after giving
effect to such transaction, any "person" or "group" (as such terms are used for
purposes of Sections 13(d) and 14(d) of the Exchange Act, whether or not
applicable), other than an Excluded Person or Ex-
-4-
cluded Group, is or becomes the "beneficial owner" (as such term is used in Rule
13d-3 promulgated pursuant to the Exchange Act), directly or indirectly, of more
than 50% of the equity of the transferee, (ii) any person or "group" (as such
terms are used for purposes of Sections 13(d) and 14(d) of the Exchange Act,
whether or not applicable), other than an Excluded Person or Excluded Group, is
or becomes the "beneficial owner" (as such term is used in Rule 13d-3
promulgated pursuant to the Exchange Act), directly or indirectly, of more than
50% of the equity of the Company or Parent then outstanding normally entitled to
vote in elections of directors, or (iii) during any period of 12 consecutive
months after the Issue Date, individuals who at the beginning of any such
12-month period constituted the Board of Directors of the Company or Parent
(together with any new directors whose election by such Board or whose
nomination for election by the shareholders of the Company or Parent was
approved by a vote of a majority of the directors 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 a
majority of the Board of Directors of the Company or Parent then in office.
"Change of Control Offer" shall have the meaning specified in
Section 11.01.
"Change of Control Offer Period" shall have the meaning specified in
Section 11.01.
"Change of Control Purchase Date" shall have the meaning specified
in Section 11.01.
"Change of Control Purchase Price" shall have the meaning specified
in Section 11.01.
"Change of Control Put Date" shall have the meaning specified in
Section 11.01.
"Code" means the Internal Revenue Code of 1986, as amended from time
to time, and any successor statute.
"Company" means the party named as such in this Indenture until a
successor replaces it pursuant to this Indenture, and thereafter means such
successor.
"Company Systems" shall have the meaning specified in Section 4.15.
"Computation Period" shall have the meaning specified in Section
4.04.
"Consolidated Interest Expense" of any Person means, for any period,
the aggregate amount (without duplication and determined in each case in
accordance with GAAP)
-5-
of (i) interest expensed or capitalized, paid, accrued, or scheduled to be paid
or accrued (including, in accordance with the following sentence, interest
attributable to the Capitalized Lease Obligations) of such Person and its
consolidated Subsidiaries during such period, including (a) original issue
discount and non-cash interest payments or accruals on any Indebtedness, (b) the
interest portion of all deferred payment obligations, and (c) all commissions,
discounts and other fees and charges owed with respect to bankers' acceptances
and letters of credit financings and currency and Interest Swap and Hedging
Obligations, in each case to the extent attributable to such period, and (ii)
the amount of dividends accrued or payable by such Person or any of its
consolidated Subsidiaries in respect of Preferred Stock (other than by
Restricted Subsidiaries of such Person to such Person or such Person's Wholly
Owned Subsidiaries). For purposes of this definition, (x) interest on a
Capitalized Lease Obligation shall be deemed to accrue at an interest rate
reasonably determined by the Company to be the rate of interest implicit in such
Capitalized Lease Obligation in accordance with GAAP and (y) interest expense
attributable to any Indebtedness represented by the guaranty by such Person or a
Subsidiary of such Person of an obligation of another Person shall be deemed to
be the interest expense attributable to the Indebtedness guaranteed. When the
foregoing definition is used in connection with the Company and its Restricted
Subsidiaries, references to a Person and its Subsidiaries in the foregoing
definition shall be deemed to refer to the Company and its Restricted
Subsidiaries and when used in connection with any Restricted Subsidiary and its
Subsidiaries shall be deemed to refer to such Restricted Subsidiary and its
Subsidiaries that are Restricted Subsidiaries.
"Consolidated Net Income" of any Person for any period means the net
income (or loss) of such Person and its consolidated Subsidiaries for such
period, determined (on a consolidated basis) in accordance with GAAP, adjusted
to exclude (only to the extent included in computing such net income (or loss)
and without duplication) (i) all extraordinary gains and losses and gains and
losses that are nonrecurring (including as a result of Asset Sales outside the
ordinary course of business), (ii) the net income, if positive, of any Person
that is not a Subsidiary in which such Person or any of its Subsidiaries has an
interest, except to the extent of the amount of dividends or distributions
actually paid to such Person or a Subsidiary of such Person that both (a) are
actually paid in cash to such Person or a Subsidiary of such Person during such
period and (b) when taken together with all other dividends and distributions
paid during such period in cash to such Person or a Subsidiary of such Person,
are not in excess of such Person's pro rata share of such other Person's
aggregate net income earned during such period, and (iii) except as provided in
the definition of "Annualized Operating Cash Flow Ratio", the net income (or
loss) of any Subsidiary acquired in a pooling of interests transaction for any
period prior to the date of such acquisition. When the foregoing definition is
used in connection with the Company and its Restricted Subsidiaries, references
to a Person and its Subsidiaries in the foregoing definition shall be deemed to
refer to the Company and its Restricted Subsidiaries and when used in connection
with any Restricted
-6-
Subsidiary and its Subsidiaries shall be deemed to refer to such Restricted
Subsidiary and its Subsidiaries that are Restricted Subsidiaries.
"Corporate Trust Office" means the principal office of the Trustee
at which at any particular time its corporate trust business shall be
administered, which address as of the date hereof is 00 Xxxx Xxxxxx, 00xx Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000.
"Credit Facility" means, at any time of determination, any credit
agreement or indenture designated by the Company to be the "Credit Facility,"
together with the related documents thereto (including, without limitation, any
guarantee agreements and security documents), in each case as such agreements
may be amended (including any amendment and restatement thereof), supplemented
or otherwise modified from time to time, including any agreement extending the
maturity of, refinancing, replacing or otherwise restructuring or adding
Restricted Subsidiaries of the Company as additional borrowers or guarantors
thereunder) all or any portion of the Indebtedness under such agreement or any
successor or replacement agreement and whether by the same or any other agent,
lender or group of lenders.
"Covenant Defeasance" shall have the meaning specified in Section
8.03.
"Currency Agreement" means any foreign exchange contract, currency
swap agreement or other similar agreement or arrangement designed to protect
against fluctuation in currency values.
"Custodian" means any receiver, trustee, assignee, liquidator,
sequestrator or similar official under any Bankruptcy Law.
"Default" means any event or condition that is, or after notice or
passage of time or both would be, an Event of Default.
"Defaulted Interest" shall have the meaning specified in Section
2.12.
"Definitive Securities" means Securities that are in the form of
Security attached hereto as Exhibit A that do not include the information called
for by footnote 1 thereof.
"Depository" means, with respect to the Securities issuable or
issued in whole or in part in global form, the Person specified in Section 2.03
as the Depository with respect to the Securities, until a successor shall have
been appointed and become such pursuant to the applicable provision of this
Indenture, and, thereafter, "Depository" shall mean or include such successor.
"Discount Rights" shall have the meaning specified in Section 10.04.
-7-
"Disqualified Capital Stock" means, with respect to any Person,
Capital Stock of such Person that, by its terms or by the terms of any security
into which it is convertible, exercisable or exchangeable, is, or upon the
happening of any event or the passage of time would be, required to be redeemed
or repurchased (including at the option of the holder thereof) by such Person or
any of its Subsidiaries, in whole or in part, on or prior to the Stated Maturity
of the Notes; provided, however, that Capital Stock will not be deemed to be
Disqualified Capital Stock if it may only be so redeemed or repurchased solely
in consideration of Qualified Capital Stock of the Company or Parent.
"Distribution Date" shall have the meaning specified in Section
10.04.
"DLJ Pop Book" means The Wireless Communications Industry survey
published by Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation.
"DTC" shall have the meaning specified in Section 2.03.
"Equity Offering" means with respect to any Person, the sale or
offering of any Capital Stock of such Person that is not Disqualified Capital
Stock.
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended from time to time, and any successor statute.
"Event of Default" shall have the meaning specified in Section 6.01.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, from time to time, and the rules and regulations promulgated by the SEC
thereunder, and any successor statute.
"Exchange Capital Stock" shall have the meaning specified in Section
4.15.
"Exchange Price" shall have the meaning specified in Section 10.01.
"Exchange Shares" shall have the meaning specified in Section 10.02.
"Excluded Group" means a "group" (as such term is used in Sections
13(d) and 14(d) of the Exchange Act) that includes one or more Excluded Persons;
provided, however, that the voting power of the Capital Stock of the Company or
Parent "beneficially owned" (as such term is used in Rule 13d-3 promulgated
under the Exchange Act) by such Excluded Persons (without attribution to such
Excluded Persons of the ownership by other members of the "group") represents a
majority of the voting power of the Capital Stock "beneficially owned" (as such
term is used in Rule 13d-3 promulgated under the Exchange Act) by such group.
-8-
"Excluded Person" means Xxxxxx Xxxxx, Parent (so long as not
controlled by anyone other than Xxxxxx Xxxxx) and any Affiliate of any of the
foregoing that is wholly owned by any of the foregoing.
"Existing Indebtedness" means Indebtedness of the Company and its
Subsidiaries in existence and outstanding on the Issue Date.
"Final Put Date" shall have the meaning specified in Section 4.15.
"GAAP" means generally accepted accounting principles set forth in
the opinions and pronouncements of the Accounting Principles Board of the
American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board ("FASB") or, if FASB
ceases to exist, any successor thereto; provided, however, that for purposes of
determining compliance with covenants in this Indenture, "GAAP" means such
generally accepted accounting principles as in effect as of the Issue Date.
"Global Security" means a Security that contains the paragraph
referred to in footnote 1 to the form of Security attached hereto as Exhibit A.
"Holder" or "Securityholder" means a Person in whose name a Security
is registered. The Holder of a Security will be treated as the owner of such
Security for all purposes.
"Incur" shall have the meaning specified in Section 4.12.
"Indebtedness" of any Person means, without duplication, (i) all
liabilities and obligations, contingent or otherwise, of such Person, (a) in
respect of borrowed money (whether or not the recourse of the lender is to the
whole of the assets of such Person or only to a portion thereof), (b) evidenced
by bonds, notes, debentures or similar instruments, (c) representing the balance
deferred and unpaid of the purchase price of any property or services, except
(other than accounts payable or other obligations to trade creditors which have
remained unpaid for greater than 90 days past their original due date or to
financial institutions, which obligations are not being contested in good faith
and for which appropriate reserves have been established) those incurred in the
ordinary course of its business that would constitute ordinarily a trade payable
to trade creditors, (d) evidenced by bankers' acceptances or similar instruments
issued or accepted by banks, (e) for the payment of money relating to a
Capitalized Lease Obligation, or (f) evidenced by a letter of credit or a
reimbursement obligation of such Person with respect to any letter of credit;
(ii) all obligations of such Person under Interest Swap and Hedging Obligations;
(iii) all liabilities of others of the kind described in the preceding clauses
(i) or (ii) that such Person has guaranteed or that is otherwise its legal
liability or which are secured by any assets or property of such Person and all
obligations to
-9-
purchase, redeem or acquire any Capital Stock; (iv) all Disqualified Capital
Stock of such Person and all Preferred Stock of such Person's Subsidiaries; and
(v) any and all deferrals, renewals, extensions, refinancing and refundings
(whether direct or indirect) of, or amendments, modifications or supplements to,
any liability of the kind described in any of the preceding clauses (i), (ii),
(iii), or (iv) or this clause (v), whether or not between or among the same
parties; provided that the outstanding principal amount at any date of any
Indebtedness issued with original issue discount is the face amount of such
Indebtedness less the remaining unamortized portion of the original issue
discount of such Indebtedness at such date.
"Indenture" means this Indenture, as amended or supplemented from
time to time in accordance with the terms hereof.
"Interest Payment Date" means the stated due date of an installment
of interest on the Securities.
"Interest Swap and Hedging Obligations" means any obligations of any
Person pursuant to any interest rate swaps, caps, collars and similar
arrangements providing protection against fluctuations in interest rates. For
purposes of this Indenture, the amount of such obligations shall be the amount
determined in respect thereof as of the end of the then most recently ended
fiscal quarter of such Person, based on the assumption that such obligation had
terminated at the end of such fiscal quarter, and in making such determination,
if any agreement relating to such obligation provides for the netting of amounts
payable by and to such Person thereunder or if any such agreement provides for
the simultaneous payment of amounts by and to such Person, then in each such
case, the amount of such obligations shall be the net amount so determined, plus
any premium due upon default by such Person.
"Investment" by any Person in any other Person means (without
duplication) (i) the acquisition (whether by purchase, merger, consolidation or
otherwise) by such Person (whether for cash, property, services, securities or
otherwise) of Capital Stock, bonds, notes, debentures, partnership or other
ownership interests or other securities of such other Person or any agreement to
make any such acquisition; (ii) the making by such Person of any deposit with,
or advance, loan or other extension of credit to, such other Person (including
the purchase of property from another Person subject to an understanding or
agreement, contingent or otherwise, to resell such property to such other
Person) or any commitment to make any such advance, loan or extension; (iii) the
entering into by such Person of any guarantee of, or other contingent obligation
with respect to, Indebtedness or other liability of such other Person; (iv) the
making of any capital contribution by such Person to such other Person; and (v)
the designation by the Board of Directors of the Company of any Person to be an
Unrestricted Subsidiary. For purposes of Section 4.04, (x) "Investment" shall
include and be valued at the fair market value of the net assets of any
Restricted Subsidiary at the time that such Restricted Subsidiary is designated
an Unrestricted Subsidiary and shall exclude the fair market value of
-10-
the net assets of any Unrestricted Subsidiary at the time that such Unrestricted
Subsidiary is designated a Restricted Subsidiary and (y) the amount of any
Investment shall be the fair market value of such Investment plus the fair
market value of all additional Investments by the Company or any of its
Restricted Subsidiaries at the time any such Investment is made; provided, that,
for purposes of this sentence, the fair market value of net assets in excess of
$5,000,000 shall be as determined by an independent appraiser of national
reputation.
"Issue Date" means the time and date of the first issuance of the
Securities under this Indenture.
"Junior Indebtedness" means Indebtedness of the Company that (i)
requires no payment of principal prior to or on the date on which all principal
of and interest on the Securities is paid in full and (ii) is subordinate and
junior in right of payment to the Securities in all respects.
"Legal Defeasance" shall have the meaning specified in Section 8.02.
"Legal Holiday" means a Saturday, a Sunday or a day on which banking
institutions in New York, New York are authorized or obligated by law or
executive order to close.
"Lien" means any mortgage, lien, pledge, charge, security interest,
or other encumbrance of any kind, whether or not filed, recorded or otherwise
perfected under applicable law (including any conditional sale or other title
retention agreement and any lease deemed to constitute a security interest and
any option or other agreement to give any security interest).
"Maturity Date" means, when used with respect to any Security, the
date specified on such Security as the fixed date on which the final installment
of principal of such Security is due and payable (in the absence of any
acceleration thereof pursuant to the provisions of this Indenture regarding
acceleration of Indebtedness or any Change of Control Offer, Proceeds Purchase
Offer or Asset Sale Offer).
"Minimum Accumulation Date" shall have the meaning specified in
Section 4.21.
"Moody's" means Xxxxx'x Investors Service, Inc.
"MSA" shall have the meaning specified in the definition of "Pops".
"Net Cash Proceeds" means the aggregate amount of cash and Cash
Equivalents received by the Company and its Restricted Subsidiaries in respect
of an Asset Sale (including upon the conversion to cash and Cash Equivalents of
(A) any note or installment
-11-
receivable at any time, or (B) any other property as and when any cash and Cash
Equivalents are received in respect of any property received in an Asset Sale
but only to the extent such cash and Cash Equivalents are received within one
year after such Asset Sale), less the sum of (i) all reasonable out-of-pocket
fees, commissions and other expenses incurred in connection with such Asset
Sale, including the amount (estimated in good faith by the Board of Directors of
the Company) of income, franchise, sales and other applicable taxes required to
be paid by the Company or any Restricted Subsidiary of the Company in connection
with such Asset Sale and (ii) the aggregate amount of cash so received which is
used to retire any existing Indebtedness of the Company ranking on a parity with
the Securities or Indebtedness of its Restricted Subsidiaries, as the case may
be, which is required to be repaid in connection with such Asset Sale or is
secured by a Lien on the property or assets of the Company or any of its
Restricted Subsidiaries, as the case may be.
"Net Pops" of any Person with respect to any Cellular System means
the Pops of the MSA or RSA served by such Cellular System multiplied by the
direct and/or indirect percentage interest of such Person in the entity licensed
or designated to receive an authorization by the Federal Communications
Commission to construct or operate a Cellular System in that MSA or RSA.
"Net Proceeds" means the aggregate net proceeds (including the fair
market value of non-cash proceeds constituting equipment or other assets of a
type generally used in a Related Business, in an amount reasonably determined by
the Board of Directors of the Company for amounts less than or equal to
$5,000,000 and by a financial advisor or appraiser of national reputation for
equal or greater amounts) received by a Person from the sale of Qualified
Capital Stock (other than to a Subsidiary of such Person) after payment of
out-of-pocket expenses, commissions and discounts incurred in connection
therewith.
"Non-Recourse Restricted Subsidiary" shall have the meaning
specified in the definition of "Permitted Acquisition Indebtedness".
"Obligation" means any principal, premium, interest (including
interest accruing subsequent to a bankruptcy or other similar proceeding whether
or not such interest is an allowed claim enforceable against the Company in a
bankruptcy case under Federal bankruptcy law), penalties, fees,
indemnifications, reimbursements, damages and other liabilities payable pursuant
to the terms of the documentation governing any Indebtedness.
"Officer" means, with respect to the Company, the Chief Executive
Officer, the President, any Vice President, the Chief Financial Officer, the
Treasurer, the Controller, or the Secretary of the Company.
-12-
"Officers' Certificate" means, with respect to the Company or any
Parent, a certificate signed by two Officers or by an Officer and an Assistant
Secretary of the Company or such Parent, respectively, and otherwise complying
with the requirements of Sections 12.04 and 12.05.
"Operating Cash Flow" of any Person means (i) with respect to any
period, the Consolidated Net Income of such Person for such period, plus (ii)
the sum, without duplication (and only to the extent such amounts are deducted
from net revenues in determining such Consolidated Net Income), of (a) the
provisions for income taxes for such period for such Person and its consolidated
Subsidiaries, (b) depreciation, amortization and other non-cash charges of such
Person and its consolidated Subsidiaries and (c) Consolidated Interest Expense
of such Person for such period, determined, in each case, on a consolidated
basis for such Person and its consolidated Subsidiaries in accordance with GAAP,
less (iii) the amount of all cash payments made during such period by such
Person and its Subsidiaries to the extent such payments relate to non-cash
charges that were added back in determining Operating Cash Flow for such period
or for any prior period. When the foregoing definition is used in connection
with the Company and its Restricted Subsidiaries, references to a Person and its
Subsidiaries in the foregoing definition shall be deemed to refer to the Company
and its Restricted Subsidiaries and when used in connection with any Restricted
Subsidiary and its Subsidiaries shall be deemed to refer to such Restricted
Subsidiary and its Subsidiaries that are Restricted Subsidiaries.
"Opinion of Counsel" means a written opinion from legal counsel who
is reasonably acceptable to the Trustee complying with the requirements of
Sections 12.04 and 12.05.
"Parent" means PCC or any directly or indirectly wholly owned
subsidiary of PCC that directly or indirectly wholly owns the Company.
"Paying Agent" shall have the meaning specified in Section 2.03.
"PCC" means Price Communications Corporation, a [New York]
corporation, and its successors and assigns.
"PCC Shares" means shares of the common stock, par value $0.01, of
PCC.
"Permitted Acquisition Indebtedness" means, with respect to any
Person, Indebtedness Incurred in connection with the acquisition of property,
businesses or assets which, or Capital Stock of a Person all or substantially
all of whose assets, are of a type generally used in a Related Business;
provided, that, in the case of the Company or its Restricted Subsidiaries, as
applicable, (x) (i) the Company's or any of its Restricted Subsidiaries', as the
-13-
case may be, Annualized Operating Cash Flow Ratio, after giving effect to such
acquisition and such Incurrence on a pro forma basis, is no greater than such
ratio prior to giving pro forma effect to such acquisition and such Incurrence;
(ii) the Company's or such Restricted Subsidiary's, as the case may be,
consolidated Indebtedness, divided by the Net Pops of the Company or such
Restricted Subsidiary, as the case may be, and its Restricted Subsidiaries, in
each case giving pro forma effect to the acquisition and such Incurrence, does
not exceed $175; and (iii) after giving effect to such acquisition and such
Incurrence the acquired property, businesses or assets or such Capital Stock is
owned directly by the Company or such Restricted Subsidiary, as the case may be,
or a Wholly Owned Restricted Subsidiary thereof or (y) (i) under the terms of
such Indebtedness and pursuant to applicable law, no recourse could be had for
the payment of principal, interest or premium with respect to such Indebtedness
or for any claim based thereon against the Company or any Restricted Subsidiary
of the Company other than the obligor of such Indebtedness and its Subsidiaries
or any of their property or assets other than the Capital Stock of such obligor
or its Subsidiaries, (ii) the obligor of such Indebtedness shall have,
immediately after giving effect to such acquisition and such Incurrence on a pro
forma basis, a ratio of Annualized Operating Cash Flow as of the date of the
acquisition to the product of Consolidated Interest Expense for the Reference
Period multiplied by four (but excluding from Consolidated Interest Expense all
amounts that are not required to be paid in cash on a current basis) of at least
1.0 to 1, (iii) since the Issue Date no Permitted Investment (other than as
permitted by clause (viii) of the definition of "Permitted Investment" below)
shall have been made in such obligor or its Subsidiaries and (iv) immediately
subsequent to the Incurrence of such Indebtedness, the obligor thereof shall be
a Restricted Subsidiary and shall have been designated by the Company (as
evidenced by an Officers' Certificate delivered promptly to the Trustee) to be a
"Non-Recourse Restricted Subsidiary".
"Permitted Investment" means (i) Investments in Cash Equivalents;
(ii) Investments in the Company or a Restricted Subsidiary (other than a
Non-Recourse Restricted Subsidiary); (iii) Investments in a Person substantially
all of whose assets are of a type generally used in a Related Business (an
"Acquired Person") if, as a result of such Investments, (A) the Acquired Person
immediately thereupon becomes a Restricted Subsidiary (other than a Non-Recourse
Restricted Subsidiary) or (B) the Acquired Person immediately thereupon either
(1) is merged or consolidated with or into the Company or any of its Restricted
Subsidiaries (other than a Non-Recourse Restricted Subsidiary) and the surviving
Person is the Company or a Restricted Subsidiary (other than a Non-Recourse
Restricted Subsidiary) or (2) transfers or conveys all or substantially all of
its assets to, or is liquidated into, the Company or any of its Restricted
Subsidiaries (other than a Non-Recourse Restricted Subsidiary); (iv) Investments
in accounts and notes receivable acquired in the ordinary course of business;
(v) any securities received in connection with an Asset Sale (other than those
of a Non-Recourse Restricted Subsidiary) and any investment with the Net Cash
Proceeds from
-14-
any Asset Sale in Capital Stock of a Person, all or substantially all of whose
assets are of a type used in a Related Business, that complies with Section
4.15; (vi) any guarantee issued by a Restricted Subsidiary in respect of
Indebtedness of a Restricted Subsidiary Incurred in compliance with this
Indenture; (vii) advances and prepayments for asset purchases in the ordinary
course of business in a Related Business of the Company or a Restricted
Subsidiary; (viii) Investments in Non-Recourse Restricted Subsidiaries with the
proceeds of contributions irrevocably and unconditionally received without
restriction by the Company from Parent; and (ix) customary loans or advances
made in the ordinary course of business to officers, directors or employees of
the Company or any of its Restricted Subsidiaries for travel, entertainment, and
moving and other relocation expenses.
"Permitted Lien" means (a) Liens existing on the Issue Date; (b)
Liens imposed by governmental authorities for taxes, assessments or other
charges not yet subject to penalty or which are being contested in good faith
and by appropriate proceedings, if adequate reserves with respect thereto are
maintained on the books of the Company in accordance with GAAP; (c) statutory
liens of carriers, warehousemen, mechanics, materialmen, landlords, repairmen or
other like Liens arising by operation of law in the ordinary course of business;
provided, however, that (i) the underlying obligations are not overdue for a
period of more than 30 days, and (ii) such Liens are being contested in good
faith and by appropriate proceedings and adequate reserves with respect thereto
are maintained on the books of the Company in accordance with GAAP; (d) Liens
securing the performance of bids, trade contracts (other than borrowed money),
leases, statutory obligations, surety and appeal bonds, performance bonds and
other obligations of a like nature Incurred in the ordinary course of business;
(e) easements, rights-of-way, zoning, similar restrictions and other similar
encumbrances or title defects which, singly or in the aggregate, do not in any
case materially detract from the value of the property subject thereto (as such
property is used by the Company or any of its Restricted Subsidiaries) or
interfere with the ordinary conduct of the business of the Company or any of its
Restricted Subsidiaries; (f) Liens arising by operation of law in connection
with judgments, only to the extent, for an amount and for a period not resulting
in an Event of Default with respect thereto; (g) pledges or deposits made in the
ordinary course of business in connection with worker's compensation,
unemployment insurance and other types of social security legislation; (h) Liens
in favor of the Trustee arising under this Indenture; (i) Liens securing
Permitted Acquisition Indebtedness, which either (A) were not Incurred or issued
in anticipation of such acquisition or (B) secure Permitted Acquisition
Indebtedness meeting the requirements set forth in clause (y) of the definition
thereof; (j) Liens securing pari passu Indebtedness or Indebtedness of a
Restricted Subsidiary that was incurred in accordance with Section 4.12; (k)
Liens securing Indebtedness of a Person existing at the time such Person becomes
a Restricted Subsidiary or is merged with or into the Company or a Restricted
Subsidiary; provided, however, that such Liens were in existence prior to the
date of such acquisition, merger or consolidation, were not incurred in
anticipation thereof, and do not extend to any
-15-
other assets; (l) Liens arising from Purchase Money Indebtedness permitted under
this Indenture; (m) Liens securing Refinancing Indebtedness Incurred to
refinance any Indebtedness that was previously so secured in a manner no more
adverse to the Holders than the terms of the Liens securing such refinanced
Indebtedness; and (n) Liens in favor of the Company or a Wholly Owned Restricted
Subsidiary (other than a Non-Recourse Restricted Subsidiary).
"Person" means any corporation, individual, joint stock company,
joint venture, partnership, unincorporated association, governmental regulatory
entity, country, state or political subdivision thereof, trust, municipality or
other entity.
"Pops" means, as of any date of determination, the greater of the
estimate of the population of a Metropolitan Statistical Area ("MSA") or Rural
Service Area ("RSA") derived from (i) the most recent Xxxxxxxx Market Service
and (ii) the most recent DLJ Pop Book; provided, however, that (x) if such
statistics are no longer printed in either the Xxxxxxxx Market Service or the
DLJ Pop Book, or either such source is no longer published, the then currently
published source of the two containing such information shall be used; (y) if
such statistics are no longer printed in either such source, or both sources are
no longer published, the statistics in the most recent Rand XxXxxxx Commercial
Atlas shall be used; and (z) if such statistics are no longer printed in the
Rand XxXxxxx Commercial Atlas or the Rand XxXxxxx Commercial Atlas is no longer
published, another nationally recognized source of such information shall be
used.
"Preferred Stock" means Capital Stock, other than common stock of an
issuer having no preferences or privileges as to the payment of dividends or the
distribution of the issuer's assets over any other class of such issuer's
Capital Stock.
"principal" of any Indebtedness means the principal of such
Indebtedness plus, without duplication, applicable premium, if any, on such
Indebtedness.
"property" means any right or interest in or to property or assets
of any kind whatsoever, whether real, personal or mixed and whether tangible or
intangible.
"Prospectus" means that certain Prospectus, dated [ ], 1998,
relating to the issuance and sale of the Securities to the Underwriters.
"Purchase Money Indebtedness" means Indebtedness of the Company or
its Restricted Subsidiaries Incurred in connection with the purchase of property
or assets for the business of the Company or its Restricted Subsidiaries,
provided that the recourse of the lenders with respect to such Indebtedness is
limited solely to the property or assets so purchased without further recourse
to either the Company or any of its Restricted Subsidiaries.
-16-
"Qualified Capital Stock" means any Capital Stock of a Person that
is not Disqualified Capital Stock.
"Record Date" means a Record Date specified in the Securities
whether or not such Record Date is a Business Day.
"Redemption Date," when used with respect to any Security to be
redeemed, means the date fixed for such redemption pursuant to Article 3 of this
Indenture and Paragraph 5 in the form of Security.
"Redemption Price," when used with respect to any Security to be
redeemed, means the redemption price for such redemption pursuant to Article 3
of this Indenture and Paragraph 5 in the form of Security, which shall include,
without duplication, in each case, any accrued and unpaid interest to the
Redemption Date.
"Reference Period" with regard to any Person means the last full
fiscal quarter of such Person for which financial information (which the Company
shall use its best efforts to compile in a timely manner) in respect thereof is
available ended on or immediately preceding any date upon which any
determination is to be made pursuant to the terms of the Securities or this
Indenture.
"Refinancing Indebtedness" means Indebtedness or Disqualified
Capital Stock (a) issued in exchange for, or the proceeds from the issuance and
sale of which are used substantially concurrently to repay, redeem, defease,
refund, refinance, discharge or otherwise retire for value, in whole or in part,
or (b) constituting an amendment, modification or supplement to, or a deferral
or renewal of ((a) and (b) above are, collectively, a "Refinancing") any
Indebtedness or Disqualified Capital Stock in a principal amount or, in the case
of Disqualified Capital Stock, liquidation preference (or if such Indebtedness
or Disqualified Capital Stock does not require cash payments prior to maturity
or is otherwise issued at a discount, the original issue price of such
Indebtedness or Disqualified Capital Stock), not to exceed the sum of (x) the
lesser of (i) the principal amount or, in the case of Disqualified Capital
Stock, liquidation preference of the Indebtedness or Disqualified Capital Stock
so Refinanced and (ii) if such Indebtedness being Refinanced was issued with an
original issue discount, the accreted value thereof (as determined in accordance
with GAAP) at the time of such Refinancing, (y) the amount of any premium
required to be paid in connection with such refinancing pursuant to the terms of
such Indebtedness and (z) all other customary fees and expenses of the Company
or such Restricted Subsidiary reasonably Incurred in connection with such
refinancing; provided, however that (A) Refinancing Indebtedness issued by any
Restricted Subsidiary of the Company shall only be used to Refinance outstanding
Indebtedness or Disqualified Capital Stock of such Restricted Subsidiary, (B)
Refinancing Indebtedness shall (x) not have a Weighted Average Life shorter than
the Indebtedness or Disqualified Capital Stock to
-17-
be so refinanced at the time of such Refinancing and (y) in all respects, be no
less subordinated or junior, if applicable, to the rights of Holders than was
the Indebtedness or Disqualified Capital Stock to be refinanced and (C) such
Refinancing Indebtedness shall have no installments of principal (or redemption
payment) scheduled to come due earlier than the scheduled maturity of any
installment of principal (or redemption payment) of the Indebtedness or
Disqualified Capital Stock to be so refinanced which was scheduled to come due
prior to the Stated Maturity.
"Registrar" means the office or agency in the Borough of Manhattan,
The City of New York, where the Securities may be presented for registration of
transfer or for exchange.
"Related Business" means any business directly related to the
ownership, development, operation, and acquisition of wireless cellular
communications systems.
"Related Person" means, with respect to any Person, (i) any
Affiliate of such Person or any spouse, immediate family member, or other
relative who has the same principal residence of any Affiliate of such Person
and (ii) any trust in which any Person described in clause (i) above has a
beneficial interest.
"Related Person Transaction" shall have the meaning specified in
Section 4.11.
"Restricted Partnership" shall have the meaning specified in Section
4.19.
"Restricted Payment" means, with respect to any Person, (i) any
dividend or other distribution on shares of Capital Stock of such Person, its
Parent, or any Subsidiary of such Person, (ii) any payment on account of the
purchase, redemption or other acquisition or retirement for value, or any
payment in respect of any amendment (in anticipation of or in connection with
any such retirement, acquisition or defeasance) in whole or in part, of any
shares of Capital Stock of such Person, its Parent, or any Subsidiary of such
Person held by Persons other than such Person or any of its Restricted
Subsidiaries (other than any Non-Recourse Restricted Subsidiary), (iii) any
defeasance, redemption, repurchase or other acquisition or retirement for value,
or any payment in respect of any amendment (in anticipation of or in connection
with any such retirement, acquisition or defeasance) in whole or in part, of any
Indebtedness of the Company (other than the scheduled repayment thereof at
maturity and any mandatory redemption or mandatory repurchase thereof pursuant
to the terms thereof) by such Person or a Subsidiary of such Person that is
subordinate in right of payment to, or ranks pari passu (other than the
Securities) with, the Securities (other than in exchange for Refinancing
Indebtedness permitted to be Incurred under this Indenture and except for any
such defeasance, redemption, repurchase, other acquisition or payment in respect
of Indebtedness held by any Restricted Subsidiary) and (iv) any Investment
(other than a Permitted In-
-18-
vestment); provided, however, that the term "Restricted Payment" does not
include (i) any dividend, distribution or other payment on shares of Capital
Stock of the Company or any Restricted Subsidiary solely in shares of Qualified
Capital Stock, (ii) any dividend, distribution or other payment to the Company,
or any dividend to any of its Restricted Subsidiaries (other than any
Non-Recourse Restricted Subsidiary), by any of its Subsidiaries, and (iii) the
purchase, redemption or other acquisition or retirement for value of shares of
Capital Stock of any Restricted Subsidiary (other than Non-Recourse Restricted
Subsidiaries) held by Persons other than the Company or any of its Restricted
Subsidiaries.
"Restricted Subsidiary" means any Subsidiary of the Company which at
the time of determination is not an Unrestricted Subsidiary. The Board of
Directors of the Company may designate any Unrestricted Subsidiary to be a
Restricted Subsidiary only if, immediately before and after giving effect to
such designation, there would exist no Default or Event of Default and the
Company could incur at least $1.00 of Indebtedness pursuant to the Annualized
Operating Cash Flow Ratio test of the second paragraph of Section 4.12, on a pro
forma basis taking into account such designation.
"RSA" shall have the meaning specified in the definition of "Pops".
"S&P" means Standard & Poor's Ratings Services, a Division of The
XxXxxx-Xxxx Companies, Inc.
"SEC" means the Securities and Exchange Commission.
"Securities" means the $150.0 million of [ ]% Senior Exchangeable
Payable-in-Kind Notes due 2008 of the Company issued pursuant to this Indenture.
"Securities Act" means the Securities Act of 1933, as amended from
time to time, and the rules and regulations of the SEC promulgated thereunder,
and any successor statute.
"Securities Custodian" means the Trustee, as custodian for the
Depository with respect to the Securities in global form, or any successor
entity thereto.
"Senior Indebtedness" means any Indebtedness of the Company,
including the Securities, other than Indebtedness of the Company as to which the
instrument creating or evidencing the same, or pursuant to which the same is
outstanding, provides that such Indebtedness shall be subordinated or junior in
right of payment to the Securities.
"Significant Restricted Subsidiary" at any date of measurement,
means one or more Restricted Subsidiaries having an aggregate net book value of
assets in excess of 5% of
-19-
the net book value of the assets of the Company and its Restricted Subsidiaries
on a consolidated basis.
"Special Rights" shall have the meaning specified in Section 4.19.
"Stated Maturity" means the date fixed for the payment of any
principal or premium pursuant to this Indenture and the Securities, including
the Maturity Date, upon redemption, acceleration, Asset Sale Offer, Proceeds
Purchase Offer, Change of Control Offer or otherwise.
"Subsidiary" with respect to any Person, means (i) a corporation at
least fifty percent of whose Capital Stock with voting power, under ordinary
circumstances, to elect directors is at the time, directly or indirectly, owned
by such Person, by such Person and one or more Subsidiaries of such Person or by
one or more Subsidiaries of such Person, or (ii) a partnership in which such
Person or a Subsidiary of such Person is, at the time, a general partner of such
partnership, or (iii) any Person in which such Person, one or more Subsidiaries
of such Person, or such Person and one or more Subsidiaries of such Person,
directly or indirectly, at the date of determination thereof has (x) at least a
fifty percent ownership interest or (y) the power to elect or direct the
election of the directors or other governing body of such Person.
"TIA" means the Trust Indenture Act of 1939, as amended from time to
time.
"Trading Day" means a Business Day other than a day on which trading
on the American Stock Exchange (or such other nationally recognized exchange or
automated quotation system on which the PCC Shares are then traded) generally is
not being conducted.
"Trading Price" means, on any Trading Day, the highest price at
which PCC Shares are quoted on the American Stock Exchange or such other
nationally recognized exchange or automated quotation system on which the PCC
Shares are then traded.
"Trustee" means Bank of Montreal Trust Company or any successor
appointed pursuant to the terms of this Indenture.
"Trust Officer" means any officer within the corporate trust
division (or any successor group) of the Trustee or any other officer of the
Trustee customarily performing functions similar to those performed by the
Persons who at that time shall be such officers, and also means, with respect to
a particular corporate trust matter, any other officer of the Trustee to whom
such trust matter is referred because of his knowledge of and familiarity with
the particular subject.
-20-
"Underwriters" means NatWest Capital Markets Limited, Xxxxxxxxx,
Xxxxxx & Xxxxxxxx Securities Corporation, Bear, Xxxxxxx & Co. Inc., NationsBanc
Xxxxxxxxxx Securities LLC, and Xxxxxxxxxxx Xxxxxxx Securities, Inc.
"Underwriting Agreement" means that certain Underwriting Agreement
dated [ ], 1998 by and among the Company and the Underwriters, as such
agreement may be amended, modified or supplemented from time to time in
accordance with the terms thereof.
"Unrestricted Subsidiary" means any Subsidiary of the Company that,
at the time of determination, shall be an Unrestricted Subsidiary (as designated
by the Board of Directors of the Company, as provided below). The Board of
Directors of the Company may designate any Subsidiary of the Company (including
any newly acquired or newly formed Subsidiary at or prior to the time it is so
formed or acquired) to be an Unrestricted Subsidiary so long as (i) no Default
or Event of Default is existing or will occur as a consequence thereof, (ii)
such Subsidiary does not own any Capital Stock of, or own or hold any Lien on
any property or asset of, the Company or any Restricted Subsidiary that is not a
Subsidiary of the Subsidiary to be so designated, and (iii) such Subsidiary and
each of its Subsidiaries has not at the time of designation, and does not
thereafter, create, incur, issue, assume, guarantee, or otherwise become
directly or indirectly liable with respect to any Indebtedness pursuant to which
the lender has recourse to any property or assets of the Company or any of its
Restricted Subsidiaries (except that such Subsidiary and its Subsidiaries may
guarantee the Securities); provided, that either (A) the Subsidiary to be so
designated has total assets of $1,000 or less or (B) if such Subsidiary has
assets greater than $1,000, that such designation would be permitted under
Section 4.04. Each such designation shall be evidenced by filing with the
Trustee a certified copy of the resolution giving effect to such designation and
an Officers' Certificate certifying that such designation complied with the
foregoing conditions.
"U.S. Government Obligations" means direct non-callable obligations
of, or noncallable obligations guaranteed by, the United States of America for
the payment of which obligation or guarantee the full faith and credit of the
United States of America is pledged.
"U.S. Legal Tender Equivalents" means securities issued or directly
and fully guaranteed or insured by the United States of America or any agency or
instrumentality thereof with a maturity of 90 days or less (provided that the
full faith and credit of the United States of America is pledged in support
thereof).
"Voting Stock" means Capital Stock of the Company having generally
the right to vote in the election of a majority of the directors of the Company
or having generally the right to vote with respect to the organizational matters
of the Company.
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"Weighted Average Life" means, as of the date of determination, with
respect to any debt instrument, the quotient obtained by dividing (i) the sum of
the products of the numbers of years from the date of determination to the dates
of each successive scheduled principal payment of such debt instrument
multiplied by the amount of each such respective principal payment by (ii) the
sum of all such principal payments.
"Wholly Owned" means, with respect to a Subsidiary of the Company,
(i) a Subsidiary that is a corporation, of which not less than 99% of the
Capital Stock (except for directors' qualifying shares or certain minority
interests owned by other Persons solely due to local law requirements that there
be more than one stockholder, but which interest is not in excess of what is
required for such purpose) is owned directly by such Person or through one or
more other Wholly Owned Subsidiaries of such Person, or (ii) any entity other
than a corporation in which such Person, directly or indirectly, owns not less
than 99% of the Capital Stock of such entity.
SECTION 1.02. Incorporation by Reference of the Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, such provision is
incorporated by reference in and made a part of this Indenture. The following
TIA terms used in this Indenture have the following meanings:
"Commission" means the SEC.
"indenture securities" means the Securities.
"indenture securityholder" means a Holder or a Securityholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
"obligor" on the indenture securities means the Company and any
other obligor on the Securities.
All other TIA terms used in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by SEC rule and not
otherwise defined herein have the meanings assigned to them thereby.
SECTION 1.03. Rules of Construction. Unless the context otherwise
requires:
(1) a term has the meaning assigned to it;
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(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and words in the
plural include the singular;
(5) provisions apply to successive events and transactions;
(6) "herein," "hereof" and other words of similar import refer to
this Indenture as a whole and not to any particular Article, Section or
other subdivision;
(7) references to Sections or Articles means reference to such
Section or Article in this Indenture, unless stated otherwise; and
(8) whenever in this Indenture or the Securities it is provided that
the principal amount with respect to a Security shall be paid, such
provision shall be deemed to require (whether or not so expressly stated)
the simultaneous payment of any accrued and unpaid interest to the date of
payment on such Security payable pursuant to paragraph 1 of the
Securities.
ARTICLE 2
THE SECURITIES
SECTION 2.01. Form and Dating. The Securities and the Trustee's
certificate of authentication in respect thereof shall be substantially in the
form of Exhibit A hereto, which Exhibit is part of this Indenture. The
Securities may have notations, legends or endorsements required by law, stock
exchange rule or usage. The Company shall approve the form of the Securities and
any notation, legend or endorsement on them. Any such notations, legends or
endorsements not contained in the form of Security attached as Exhibit A hereto
shall be delivered in writing to the Trustee. Each Security shall be dated the
date of its authentication.
The terms and provisions contained in the forms of Securities shall
constitute, and are hereby expressly made, a part of this Indenture and, to the
extent applicable, the Company and the Trustee, by their execution and delivery
of this Indenture, expressly agree to such terms and provisions and to be bound
thereby.
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SECTION 2.02. Execution and Authentication. Each Security shall be
signed by at least one Officer for the Company by manual or facsimile signature.
The Company's seal may be impressed, affixed, imprinted or reproduced on the
Securities and may be in facsimile form.
If an Officer whose signature is on a Security was an officer at the
time of such execution but no longer holds that office at the time the Trustee
authenticates the Security, the Security shall be valid nevertheless and the
Company shall nevertheless be bound by the terms of the Securities and this
Indenture.
A Security shall not be valid until an authorized signatory of the
Trustee manually signs the certificate of authentication on the Security but
such signature shall be conclusive evidence that the Security has been
authenticated pursuant to the terms of this Indenture.
The Trustee shall authenticate Securities from time to time for
original issue in the aggregate principal amount of up to $150,000,000 upon a
written order of the Company in the form of an Officers' Certificate. The
Officers' Certificate shall specify the amount of Securities to be authenticated
and the date on which the Securities are to be authenticated. The terms of any
additional Securities shall be the same in all respects as the initial
Securities (or in all respects except for the payment of interest (i) scheduled
and paid prior to the date of issuance of such Securities or (ii) payable on the
first Interest Payment Date following such date of issuance). The initial
Securities and any additional Securities issued under the Indenture shall be
treated as a single class for all purposes of the Indenture. The aggregate
principal amount of Securities outstanding at any time may not exceed $[ ],
except as provided in Section 2.07. Upon the written order of the Company in the
form of an Officers' Certificate, the Trustee shall authenticate Securities in
substitution of Securities originally issued to reflect any name change of the
Company.
The Trustee may appoint an authenticating agent acceptable to the
Company to authenticate Securities. Unless otherwise provided in the
appointment, an authenticating agent may authenticate Securities whenever the
Trustee may do so. Each reference in this Indenture to authentication by the
Trustee includes authentication by such agent. An authenticating agent has the
same rights as an Agent to deal with the Company, any Affiliate of the Company,
or any of their respective Subsidiaries.
Securities shall be issuable only in fully registered form, without
coupons, in denominations of $1,000 and any integral multiple thereof.
SECTION 2.03. Registrar and Paying Agent. The Company shall maintain
an office or agency in the Borough of Manhattan, The City of New York, where
Securities
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may be presented for registration of transfer or for exchange (the "Registrar")
and an office or agency where Securities may be presented for payment (the
"Paying Agent") and where notices and demands to or upon the Company in respect
of the Securities may be served. The Company may act as Registrar or Paying
Agent, except that, for the purposes of Articles 3, 8, 10, 11, Section 4.15 and
as otherwise specified in this Indenture, neither the Company nor any Affiliate
of the Company shall act as Paying Agent. The Registrar shall keep a register of
the Securities and of their transfer and exchange. The Company may have one or
more co-Registrars and one or more additional Paying Agents. The term "Paying
Agent" includes any additional Paying Agent. The Company hereby initially
appoints the Trustee as Registrar and Paying Agent, and the Trustee hereby
agrees so to act.
The Company shall enter into an appropriate written agency agreement
with any Agent not a party to this Indenture, which agreement shall implement
the provisions of this Indenture that relate to such Agent. The Company shall
promptly notify the Trustee in writing of the name and address of any such
Agent. If the Company fails to maintain a Registrar or Paying Agent, the Trustee
shall act as such.
The Company initially appoints The Depository Trust Company ("DTC")
to act as Depository with respect to the Global Securities.
The Company initially appoints the Trustee to act as Securities
Custodian with respect to the Global Securities.
SECTION 2.04. Paying Agent To Hold Assets in Trust. The Company
shall require each Paying Agent other than the Trustee to agree in writing that
each Paying Agent shall hold in trust for the benefit of the Holders or the
Trustee all assets held by the Paying Agent for the payment of principal of,
premium, if any, or interest on, the Securities (whether such assets have been
distributed to it by the Company or any other obligor on the Securities), and
shall notify the Trustee in writing of any Default in making any such payment.
If either of the Company or a Subsidiary of the Company acts as Paying Agent, it
shall segregate such assets and hold them as a separate trust fund for the
benefit of the Holders or the Trustee. The Company at any time may require a
Paying Agent to distribute all assets held by it to the Trustee and account for
any assets disbursed, and the Trustee may at any time during the continuance of
any payment Default, upon written request to a Paying Agent, require such Paying
Agent to distribute all assets held by it to the Trustee and to account for any
assets distributed. Upon distribution to the Trustee of all assets that shall
have been delivered by the Company to the Paying Agent, the Paying Agent (if
other than the Company) shall have no further liability for such assets.
SECTION 2.05. Securityholder Lists. The Trustee shall preserve in as
current a form as is reasonably practicable the most recent list available to it
of the names and
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addresses of Holders and shall otherwise comply with TIA ss. 312(a). If the
Trustee is not the Registrar, the Company shall furnish to the Trustee on or
before the third Business Day preceding each Interest Payment Date and at such
other times as the Trustee may request in writing a list in such form and as of
such date as the Trustee reasonably may require of the names and addresses of
Holders.
SECTION 2.06. Transfer and Exchange.
(a) Transfer and Exchange of Definitive Securities. When Definitive
Securities are presented to the Registrar or a co-Registrar with a request:
(x) to register the transfer of such Definitive Securities; or
(y) to exchange such Definitive Securities for an equal principal
amount of Definitive Securities of other authorized denominations,
the Registrar or co-Registrar shall register the transfer or make the exchange
as requested if its reasonable requirements for such transaction are met;
provided, however, that the Definitive Securities surrendered for transfer or
exchange shall be duly endorsed or accompanied by a written instrument of
transfer in form reasonably satisfactory to the Company and the Registrar or
co-Registrar, duly executed by the Holder thereof or his attorney duly
authorized in writing.
(b) Transfer and Exchange of Global Securities. The transfer and
exchange of Global Securities or beneficial interests therein shall be effected
through the Depository, in accordance with this Indenture (including the
restrictions on transfer set forth herein) and the procedures of the Depository
therefor.
(c) Transfer of a Beneficial Interest in a Global Security for a
Definitive Security.
(i) Upon receipt by the Trustee of written instructions or such
other form of instructions as is customary for the Depository from the
Depository or its nominee on behalf of any Person having a beneficial
interest in a Global Security, if such beneficial interest is being
transferred to the Person designated by the Depository as being the
beneficial owner, a certification from such person to that effect (in
substantially the form set forth on the reverse of the Security) will be
required and the Trustee or the Securities Custodian, at the direction of
the Trustee, will cause, in accordance with the standing instructions and
procedures existing between the Depository and the Securities Custodian,
the aggregate principal amount of the Global Security to be reduced and,
following such reduction, the Company will execute and, upon receipt of an
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authentication order in the form of an Officers' Certificate, the Trustee
will authenticate and deliver to the transferee a Definitive Security.
(ii) Definitive Securities issued in exchange for a beneficial
interest in a Global Security pursuant to this Section 2.06(d) shall be
registered in such names and in such authorized denominations as the
Depository, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee. The Trustee shall
deliver such Definitive Securities to the persons in whose names such
Securities are so registered.
(d) Restrictions on Transfer and Exchange of Global Securities.
Notwithstanding any other provisions of this Indenture (other than the
provisions set forth in subsection (f) of this Section 2.06), a Global Security
may not be transferred as a whole except by the Depository to a nominee of the
Depository or by a nominee of the Depository to the Depository or another
nominee of the Depository or by the Depository or any such nominee to a
successor Depository or a nominee of such successor Depository.
(e) Authentication of Definitive Securities in Absence of
Depository. If at any time:
(i) the Depository for the Securities notifies the Company that the
Depository is unwilling or unable to continue as Depository for the Global
Securities and a successor Depository for the Global Securities is not
appointed by the Company within 90 days after delivery of such notice; or
(ii) the Company, in its sole discretion, notifies the Trustee in
writing that it elects to cause the issuance of Definitive Securities
under this Indenture,
then the Company will execute, and the Trustee, upon receipt of an Officers'
Certificate requesting the authentication and delivery of Definitive Securities,
will authenticate and deliver Definitive Securities, in an aggregate principal
amount equal to the principal amount of the Global Securities, in exchange for
such Global Securities.
(f) Cancellation and/or Adjustment of Global Security. At such time
as all beneficial interests in a Global Security have either been exchanged for
Definitive Securities, redeemed, repurchased or canceled, such Global Security
shall be returned to or retained and canceled by the Trustee. At any time prior
to such cancellation, if any beneficial interest in a Global Security is
exchanged for Definitive Securities, redeemed, repurchased or canceled, the
principal amount of Securities represented by such Global Security shall be
reduced and an endorsement shall be made on such Global Security, by the Trustee
or the Securities Custodian, at the direction of the Trustee, to reflect such
reduction.
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(g) Obligations with Respect to Transfers and Exchanges of
Definitive Securities.
(i) To permit registrations of transfers and exchanges, the Company
shall execute and the Trustee shall authenticate Definitive Securities and
Global Securities at the Registrar's or co-Registrar's request.
(ii) No service charge shall be made for any registration of
transfer or exchange, but the Company may require payment of a sum
sufficient to cover any transfer tax, assessments, or similar governmental
charge payable in connection therewith (other than any such transfer
taxes, assessments, or similar governmental charge payable upon exchanges
or transfers pursuant to Section 2.02 (fourth paragraph), 2.10, 3.07,
4.15(8), 9.05, or 11.01 (final paragraph)).
(iii) The Registrar or co-Registrar shall not be required to
register the transfer of or exchange of (a) any Definitive Security
selected for redemption in whole or in part pursuant to Article 3, except
the unredeemed portion of any Definitive Security being redeemed in part,
or (b) any Security for a period beginning 15 Business Days before the
mailing of a notice of an offer to repurchase pursuant to Article 11 or
Section 4.15 hereof or the mailing of a notice of redemption of Securities
pursuant to Article 3 hereof and ending at the close of business on the
day of such mailing.
SECTION 2.07. Replacement Securities. If a mutilated Security is
surrendered to the Trustee or if the Holder of a Security claims and submits an
affidavit or other evidence, satisfactory to the Trustee, to the Trustee to the
effect that the Security has been lost, destroyed or wrongfully taken, the
Company shall issue and the Trustee shall authenticate a replacement Security if
the Trustee's requirements are met. If required by the Trustee or the Company,
such Holder must provide an indemnity bond or other indemnity, sufficient in the
judgment of both the Company and the Trustee, to protect the Company, the
Trustee or any Agent from any loss which any of them may suffer if a Security is
replaced. The Company may charge such Holder for its reasonable, out-of-pocket
expenses in replacing a Security.
Every replacement Security is an additional obligation of the
Company.
SECTION 2.08. Outstanding Securities. Securities outstanding at any
time are all the Securities that have been authenticated by the Trustee
(including any Security represented by a Global Security) except those canceled
by it, those delivered to it for cancellation, those reductions in the interest
in a Global Security effected by the Trustee hereunder and those described in
this Section 2.08 as not outstanding. A Security does not
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cease to be outstanding because the Company or an Affiliate of the Company holds
the Security, except as provided in Section 2.09.
If a Security is replaced pursuant to Section 2.07 (other than a
mutilated Security surrendered for replacement), it ceases to be outstanding
unless the Trustee receives proof satisfactory to it that the replaced Security
is held by a bona fide purchaser. A mutilated Security ceases to be outstanding
upon surrender of such Security and replacement thereof pursuant to Section
2.07.
If on a Redemption Date or the Maturity Date the Paying Agent (other
than the Company or an Affiliate of a Company) holds cash sufficient to pay all
of the principal and interest due on the Securities payable on that date and
payment of the Securities called for redemption or payable on such Maturity Date
is not otherwise prohibited pursuant to this Indenture, then on and after that
date such Securities cease to be outstanding and interest on them ceases to
accrue.
SECTION 2.09. Treasury Securities. In determining whether the
Holders of the required principal amount of Securities have concurred in any
direction, amendment, supplement, waiver or consent, Securities owned by the
Company or Affiliates of the Company shall be disregarded, except that, for the
purposes of determining whether the Trustee shall be protected in relying on any
such direction, amendment, supplement, waiver or consent, only Securities that
the Trustee knows are so owned shall be disregarded.
SECTION 2.10. Temporary Securities. Until Definitive Securities are
ready for delivery, the Company may prepare and the Trustee shall authenticate
temporary Securities. Temporary Securities shall be substantially in the form of
Definitive Securities but may have variations that the Company reasonably and in
good faith considers appropriate for temporary Securities. Without unreasonable
delay, the Company shall prepare and the Trustee shall authenticate Definitive
Securities in exchange for temporary Securities. Until so exchanged, the
temporary Securities shall in all respects be entitled to the same benefits
under this Indenture as permanent Securities authenticated and delivered
hereunder.
SECTION 2.11. Cancellation. The Company at any time may deliver
Securities to the Trustee for cancellation. The Registrar and the Paying Agent
shall forward to the Trustee any Securities surrendered to them for transfer,
exchange or payment. The Trustee, or at the direction of the Trustee, the
Registrar or the Paying Agent (other than the Company or an Affiliate of the
Company), and no one else, shall cancel and, at the written direction of the
Company, shall dispose of all Securities surrendered for transfer, exchange,
payment or cancellation. Subject to Section 2.07, the Company may not issue new
Securities to replace Securities that have been paid or delivered to the Trustee
for cancellation. No Securities shall be authenticated in lieu of or in exchange
for any Securities canceled as
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provided in this Section 2.11, except as expressly permitted in the form of
Securities and as permitted by this Indenture.
SECTION 2.12. Defaulted Interest. Interest on any Security which is
payable, and is punctually paid or duly provided for, on any Interest Payment
Date shall be paid to the person in whose name that Security (or one or more
predecessor Securities) is registered at the close of business on Record Date
for such interest.
Any interest on any Security which is payable, but is not punctually
paid or duly provided for, on any Interest Payment Date plus, to the extent
lawful, any interest payable on the defaulted interest (herein called "Defaulted
Interest") shall forthwith cease to be payable to the registered holder on the
relevant Record Date, and such 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 Securities (or their respective
predecessor Securities) 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 Security and the date of the proposed parent, and at the same time
the Company shall deposit with the Trustee an amount of cash equal to the
aggregate amount proposed to be paid in respect of such Defaulted Interest
or shall make arrangements satisfactory to the Trustee for such deposit
prior to the date of the proposed payment, such cash when deposited to be
held in trust for the benefit of the persons entitled to such Defaulted
Interest as provided in this clause (1). 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 mailed,
first-class postage prepaid, to each Holder at his address as it appears
in the Security register 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 mailed as aforesaid, such
Defaulted Interest shall be paid to the persons in whose names the
Securities (or their respective predecessor Securities) are registered 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
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on which the Securities 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 shall
be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon transfer of or in exchange for or in lieu of
any other Security shall carry the rights to interest accrued and unpaid, and to
accrue, which were carried by such other Security.
ARTICLE 3
REDEMPTION
SECTION 3.01. Optional Redemption. Redemption of Securities, as
permitted by any provision of this Indenture, shall be made in accordance with
such provision and this Article 3. Except as described in Article 10 of this
Indenture, the Company will not have the right to redeem any Securities prior to
August 15, 2003. On or after August 15, 2003, the Company will have the right to
redeem all or any part of the Securities in cash at the Redemption Prices
specified in the form of Security attached as Exhibit A set forth therein under
the caption "Redemption," in each case, including accrued and unpaid interest,
if any, to the applicable Redemption Date (subject to the right of Holders of
record on the relevant Regular Record Date to receive interest due on an
Interest Payment Date that is on or prior to the Redemption Date).
SECTION 3.02. Notices to Trustee. If the Company elects or is
required to redeem Securities pursuant to Paragraph 5 of the Securities, it
shall notify the Trustee in writing of the Redemption Date and the principal
amount of Securities to be redeemed and whether it wants the Trustee to give
notice of redemption to the Holders.
If the Company elects to reduce the principal amount of Securities
to be redeemed pursuant to Paragraph 5 of the Securities by crediting against
any such redemption Securities it has not previously delivered to the Trustee
for cancellation, it shall so notify the Trustee of the amount of the reduction
and deliver such Securities with such notice.
The Company shall give each notice to the Trustee provided for in
this Section 3.02 with respect to any optional redemption pursuant to Section
3.01 at least 45 days before the Redemption Date (unless a shorter notice shall
be satisfactory to the Trustee). Any
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such notice may be canceled at any time prior to notice of such redemption being
mailed to any Holder and shall thereby be void and of no effect.
SECTION 3.03. Selection of Securities To Be Redeemed. If less than
all of the Securities are to be redeemed pursuant to Paragraph 5(a) thereof, the
Trustee shall select the Securities to be redeemed on a pro rata basis or by
such other method as the Trustee shall determine to be fair and appropriate and
in such manner as complies with any applicable Depository, legal and stock
exchange requirements.
The Trustee shall make the selection from the Securities outstanding
and not previously called for redemption and shall promptly notify the Company
in writing of the Securities selected for redemption and, in the case of any
Security selected for partial redemption, the principal amount thereof to be
redeemed. Securities in denominations of $1,000 may be redeemed only in whole.
The Trustee may select for redemption portions (equal to $1,000 or any integral
multiple thereof) of the principal of Securities that have denominations larger
than $1,000. Provisions of this Indenture that apply to Securities called for
redemption also apply to portions of Securities called for redemption.
SECTION 3.04. Notice of Redemption. At least 30 days but not more
than 60 days before a Redemption Date, the Company shall mail a notice of
redemption by first class mail, postage prepaid, to the Trustee and each Holder
whose Securities are to be redeemed to such Holder's last address as then shown
upon the books of the Registrar. At the Company's request, the Trustee shall
give the notice of redemption in the Company's name and at the Company's
expense. Each notice for redemption shall identify the Securities to be redeemed
and shall state:
(a) the Redemption Date;
(b) the Redemption Price, including the amount of accrued and unpaid
interest, if any, to be paid upon such redemption;
(c) the name, address and telephone number of the Paying Agent;
(d) that Securities called for redemption must be surrendered to the
Paying Agent at the address specified in such notice to collect the
Redemption Price;
(e) that, unless (i) with respect to a redemption pursuant to
Paragraph 5(a) of the Securities, the Company defaults in its obligation
to deposit cash with the Paying Agent in accordance with Section 3.06
hereof or (ii) such redemption payment is prohibited pursuant to Article
12 hereof or other laws, the interest on securities (or portion thereof)
called for redemption ceases to accrue on and after the Redemption Date
and
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the only remaining right of the Holders of such Securities is to receive
payment of the Redemption Price, as the case may be, including any accrued
and unpaid interest to the Redemption Date, upon surrender to the Paying
Agent of the Securities called for redemption and to be redeemed;
(f) if any Security is being redeemed in part, the portion of the
principal amount, equal to $1,000 or any integral multiple thereof, of
such Security to be redeemed and that, on or after the Redemption Date,
and upon surrender of such Security, a new Security or Securities in a
principal amount equal to the unredeemed portion thereof will be issued;
(g) if less than all the Securities are to be redeemed, the
identification of the particular Securities (or portion thereof) to be
redeemed, as well as the aggregate principal amount of such Securities to
be redeemed and the aggregate principal amount of Securities to be
outstanding after such partial redemption;
(h) the CUSIP number of the Securities to be redeemed; and
(i) that the notice is being sent pursuant to this Section 3.04 and
pursuant to the optional redemption provisions of Paragraph 5(a) of the
Securities or the special redemption provisions of Paragraph 5(b) of the
Securities, as the case may be.
SECTION 3.05. Effect of Notice of Redemption. Once notice of
redemption is mailed in accordance with Section 3.04, Securities called for
redemption become due and payable on the Redemption Date and at the Redemption
Price including any accrued and unpaid interest to the Redemption Date, if any.
Upon surrender to the Trustee or Paying Agent, such Securities called for
redemption shall be paid at the Redemption Price, including interest, if any,
accrued and unpaid to the Redemption Date; provided that if the Redemption Date
is after a regular Record Date and on or prior to the Interest Payment Date, the
accrued interest shall be payable to the Holder of the redeemed Securities
registered on the relevant Record Date; and provided, further, that if a
Redemption Date is a Legal Holiday payment shall be made on the next succeeding
Business Day and no interest shall accrue for the period from such Redemption
Date to such succeeding Business Day.
SECTION 3.06. Deposit of Redemption Price. On or prior to any
Redemption Date, the Company shall deposit with the Paying Agent (other than the
Company or an Affiliate of the Company) cash sufficient to pay the Redemption
Price of, including any accrued and unpaid interest on, all Securities to be
redeemed on such Redemption Date (other than Securities or portions thereof
called for redemption on that date that have been delivered by the Company to
the Trustee for cancellation). The Paying Agent shall promptly return to
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the Company any cash so deposited which is not required for that purpose upon
the written request of the Company.
If the Company complies with the other provisions of this Article 3
and payment of the Securities called for redemption is not prohibited under this
Indenture, interest on the Securities to be redeemed will cease to accrue on the
applicable Redemption Date, whether or not such Securities are presented for
payment. Notwithstanding anything herein to the contrary, if any Security
surrendered for redemption in the manner provided in the Securities shall not be
so paid upon surrender for redemption because of the failure of the Company to
comply with the preceding paragraph, interest shall continue to accrue and be
paid from the Redemption Date until such payment is made on the unpaid
principal, and, to the extent lawful, on any interest not paid on such unpaid
principal, in each case at the rate and in the manner provided in Section 4.02
hereof and the Securities.
SECTION 3.07. Securities Redeemed in Part. Upon surrender of a
Security that is to be redeemed in part, the Company shall execute and the
Trustee shall authenticate and deliver to the Holder, without service charge to
the Holder, a new Security or Securities equal in principal amount to the
unredeemed portion of the Security surrendered.
ARTICLE 4
COVENANTS
SECTION 4.01. [Reserved]
SECTION 4.02. Payment of Securities. The Company shall pay the
principal of and interest on the Securities on the dates and in the manner
provided in the Securities. An installment of principal of or interest on the
Securities shall be considered paid on the date it is due if the Trustee or
Paying Agent (other than the Company or an Affiliate of the Company) holds for
the benefit of the Holders, on or before 10:00 a.m. New York City time on that
date, cash deposited and designated for and sufficient to pay the installment.
The Company shall pay interest on overdue principal and on overdue
installments of interest at the rate specified in the Securities compounded
semi-annually, to the extent lawful.
SECTION 4.03. Maintenance of Office or Agency. The Company shall
maintain in the Borough of Manhattan, The City of New York, an office or agency
where Securities may be presented or surrendered for payment, where Securities
may be surrendered for registration of transfer or exchange and where notices
and demands to or upon the
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Company in respect of the Securities and this Indenture may be served. The
Company shall give prompt written notice to the Trustee of the location, and any
change in the location, of such office or agency. If at any time the Company
shall fail to maintain any such required office or agency or shall fail to
furnish the Trustee with the address thereof, such presentations, surrenders,
notices and demands may be made or served at the address of the Trustee set
forth in Section 12.02.
The Company may also, from time to time, designate one or more other
offices or agencies where the Securities may be presented or surrendered for any
or all such purposes and may from time to time rescind such designations;
provided, however, that no such designation or rescission shall in any manner
relieve the Company of its obligation to maintain an office or agency in the
Borough of Manhattan, The City of New York, for such purposes. The Company shall
give prompt written notice to the Trustee of any such designation or rescission
and of any change in the location of any such other office or agency. The
Company hereby initially designates the Corporate Trust Office of the Trustee as
such office.
SECTION 4.04. Limitation on Restricted Payments. After the Issue
Date, the Company will not, and will not permit any of its Restricted
Subsidiaries to, directly or indirectly, make any Restricted Payment, if,
immediately prior or after giving effect thereto:
(a) a Default or an Event of Default would exist;
(b) the Company's Annualized Operating Cash Flow Ratio for the
Reference Period would exceed 8.5 to 1; or
(c) the aggregate amount of all Restricted Payments made by the
Company and its Restricted Subsidiaries, including such proposed
Restricted Payment (if not made in cash, then the fair market value of any
property used therefor, as determined in good faith by the Board of
Directors) from and after the Issue Date and on or prior to the date of
such Restricted Payment, shall exceed the sum of (i) the amount determined
by subtracting (x) 2.0 times the aggregate Consolidated Interest Expense
of the Company for the period (taken as one accounting period) from the
Issue Date to the last day of the last full fiscal quarter prior to the
date of the proposed Restricted Payment (the "Computation Period") from
(y) Operating Cash Flow of the Company for the Computation Period, plus
(ii) the aggregate Net Proceeds received by the Company from (x) Equity
Offerings (other than to a Subsidiary of the Company) after the Issue Date
and on or prior to the date of such Restricted Payment or (y) Capital
Contributions to the Company after the Issue Date, plus (iii) to the
extent not otherwise included in clauses (i) or (ii), above, an amount
equal to the net reduction in Investments in Unrestricted Subsidiaries
resulting from payments of dividends, repayment of loans or advances, or
other transfers of assets, in each case to the Company or any Wholly
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Owned Restricted Subsidiary of the Company from Unrestricted Subsidiaries,
or from redesignations of Unrestricted Subsidiaries as Restricted
Subsidiaries (valued in each case as provided in the definition of
"Investments"), not to exceed, in the case of any Unrestricted Subsidiary,
the amount of Investments previously made by the Company and any
Restricted Subsidiary in such Unrestricted Subsidiary.
Notwithstanding the foregoing paragraph, the provisions set forth in
clauses (b) and (c) thereof will not prohibit (i) the use of an aggregate of
$15,000,000 to be used for Restricted Payments not otherwise permitted by this
Section 4.04 and (ii) any dividend, distribution or other payment by any
Restricted Subsidiary on shares of its Capital Stock that is paid pro rata to
all holders of such Capital Stock, and notwithstanding the foregoing paragraph,
the provisions set forth in clauses (a), (b) and (c) thereof will not prohibit
(x) the payment of any dividend within 60 days after the date of its declaration
if such dividend could have been made on the date of its declaration in
compliance with the foregoing provisions, or (y) the redemption, defeasance,
repurchase or other acquisition or retirement of any Indebtedness or Capital
Stock of the Company or its Restricted Subsidiaries either in exchange for or
out of the Net Proceeds of a substantially concurrent Equity Offering (in the
case of any redemption, defeasance, repurchase or other acquisition or
retirement of any Junior Indebtedness or Capital Stock of the Company or its
Restricted Subsidiaries and other than to a Subsidiary of the Company) or sale
of Junior Indebtedness (in the case of any redemption, defeasance, repurchase or
other acquisition or retirement of any Indebtedness of the Company or its
Restricted Subsidiaries) of the Company.
In determining the aggregate amount expended for Restricted Payments
in accordance with clause (c) of the first paragraph of this Section 4.04, 100%
of the amounts expended under clauses (i), (ii), (x) and (y) of the immediately
preceding paragraph shall be included as Restricted Payments from and after the
Issue Date.
SECTION 4.05. Corporate Existence. Subject to Article 5, the Company
shall do or cause to be done all things necessary to preserve and keep in full
force and effect its corporate existence and the corporate or other existence of
each of its Restricted Subsidiaries in accordance with the respective
organizational documents of each of them and the rights (charter and statutory)
and corporate franchises of the Company and each of the Company's Restricted
Subsidiaries; provided, however, that the Company shall not be required to
preserve, with respect to itself, any right or franchise, and with respect to
any Restricted Subsidiaries of the Company, any such existence, right or
franchise, if (a) the Board of Directors of the Company shall determine that the
preservation thereof is no longer desirable in the conduct of the business of
such entity and (b) the loss thereof is not disadvantageous in any material
respect to the Holders.
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SECTION 4.06. Payment of Taxes and Other Claims. Except with respect
to immaterial items, the Company shall, and shall cause each of its Restricted
Subsidiaries to, pay or discharge or cause to be paid or discharged, before the
same shall become delinquent, (i) all taxes, assessments and governmental
charges (including withholding taxes and any penalties, interest and additions
to taxes) levied or imposed upon the Company or any of its Restricted
Subsidiaries or any of their respective properties and assets and (ii) all
lawful claims, whether for labor, materials, supplies, services or anything
else, which have become due and payable and which by law have or may become a
Lien upon the property and assets of the Company or any of its Restricted
Subsidiaries; 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 and for which disputed amounts adequate
reserves have been established in accordance with GAAP.
SECTION 4.07. Maintenance of Properties and Insurance. The Company
shall cause all material properties used or useful to the conduct of its
business and the business of each of its Restricted Subsidiaries to be
maintained and kept in good condition, repair and working order (reasonable wear
and tear excepted) and shall cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereof, all as in its reasonable
judgment may be necessary, so that the business carried on in connection
therewith may be properly conducted at all times; provided, however, that
nothing in this Section 4.07 shall prevent the Company from discontinuing any
operation or maintenance of any of such properties, or disposing of any of them,
if such discontinuance or disposal is (a) in the judgment of the Board of
Directors of the Company, desirable in the conduct of the business of such
entity and (b) not disadvantageous in any material respect to the Holders.
The Company shall provide, or cause to be provided, for itself and
each of its Restricted Subsidiaries, insurance (including appropriate
self-insurance) against loss or damage of the kinds that, in the reasonable,
good faith opinion of the Company is adequate and appropriate for the conduct of
the business of the Company and such Restricted Subsidiaries in a prudent
manner, with (except for self-insurance) reputable insurers or with the
government of the United States of America or an agency or instrumentality
thereof, in such amounts, with such deductibles, and by such methods as shall be
customary, in the reasonable, good faith opinion of the Board of Directors of
the Company and adequate and appropriate for the conduct of the business of the
Company and such Restricted Subsidiaries in a prudent manner for entities
similarly situated in the industry, unless failure to provide such insurance
(together with all other such failures) would not have a material adverse effect
on the financial condition or results of operations of the Company or such
Restricted Subsidiary.
SECTION 4.08. Compliance Certificate; Notice of Default. The Company
shall deliver to the Trustee within 120 days after the end of its fiscal year an
Officers'
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Certificate complying with ss. 314(a)(4) of the TIA and stating that a review of
its activities and the activities of its Subsidiaries during the preceding
fiscal year has been made under the supervision of the signing Officers with a
view to determining whether the Company has kept, observed, performed and
fulfilled their obligations under this Indenture and further stating, as to each
such officer signing such certificate, whether the signer knows of any failure
by the Company or any Subsidiary of the Company to comply with any conditions or
covenants in this Indenture and, if such signer does know of such a failure to
comply, the certificate shall describe such failure with particularity. The
Officers' Certificate shall also notify the Trustee should the relevant fiscal
year end on any date other than the current fiscal year end date.
The Company shall, so long as any of the Securities are outstanding,
deliver to the Trustee, promptly upon becoming aware of any Default, Event of
Default or fact which would prohibit the making of any payment to or by the
Trustee in respect of the Securities, an Officers' Certificate specifying such
Default, Event of Default or fact and what action the Company is taking or
proposes to take with respect thereto. The Trustee shall not be deemed to have
knowledge of any Default, any Event of Default or any such fact unless one of
its trust officers receives notice thereof from the Company or any of the
Holders.
SECTION 4.09. Reports. Whether or not the Company is subject to the
reporting requirements of Section 13 or 15(d) of the Exchange Act, the Company
shall deliver to the Trustee and to each Holder, within 15 days after it is or
would have been required to file such with the SEC, annual and quarterly
financial statements substantially equivalent to financial statements that would
have been included in reports filed with the SEC, if the Company was subject to
the requirements of Section 13 or 15(d) of the Exchange Act, including, with
respect to annual information only, a report thereon by the Company's certified
independent public accountants as such would be required in such reports to the
SEC, and in each case, together with a management's discussion and analysis of
financial condition and results of operations which would be so required.
SECTION 4.10. Limitation on Status as Investment Company. The
Company shall not become, nor shall it permit any of its Restricted Subsidiaries
to become, an "investment company" (as that term is defined in the Investment
Company Act of 1940, as amended), or otherwise become subject to regulation
under the Investment Company Act.
SECTION 4.11. Limitation on Transactions with Related Persons. After
the Issue Date, the Company will not, and will not permit any of its Restricted
Subsidiaries to, enter into any contract, agreement, arrangement or transaction
with any Related Person (each a "Related Person Transaction"), or any series of
Related Person Transactions, except for transactions made in good faith, the
terms of which are (i) fair and reasonable to the Company or such Subsidiary, as
the case may be, and (ii) at least as favorable as the terms which could be
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obtained by the Company or such Subsidiary, as the case may be, in a comparable
transaction made on an arm's length basis with Persons who are not Related
Persons.
Without limiting the foregoing, (a) any Related Person Transaction
or series of Related Person Transactions with an aggregate value in excess of
$1,000,000 must first be approved by a majority of the Board of Directors of the
Company who are disinterested in the subject matter of the transaction pursuant
to a Board Resolution, and (b) with respect to any Related Person Transaction or
series of Related Person Transactions with an aggregate value in excess of
$5,000,000, the Company must first obtain a favorable written opinion from an
independent financial advisor of national reputation as to the fairness from a
financial point of view of such transaction to the Company or such Subsidiary,
as the case may be.
Notwithstanding the foregoing, the following shall not constitute
Related Person Transactions: (i) reasonable and customary payments on behalf of
directors, officers or employees of the Company or any of its Restricted
Subsidiaries, or in reimbursement of reasonable and customary payments or
reasonable and customary expenditures made or incurred by such Persons as
directors, officers or employees, (ii) any contract, agreement, arrangement or
transaction solely between or among the Company and any of its Restricted
Subsidiaries or between or among Restricted Subsidiaries of the Company, (iii)
any Restricted Payment not prohibited by Section 4.04, (iv) any loan or advance
by the Company or a Restricted Subsidiary to employees of the Company or a
Restricted Subsidiary in the ordinary course of business, in an aggregate amount
at any one time outstanding not to exceed $500,000, and (v) any payment pursuant
to a tax-sharing agreement between the Company and any other Person with which
the Company is required or permitted to file a consolidated tax return or with
which the Company is or could be part of a consolidated group for tax purposes,
which payments are not in excess of the tax liabilities attributable solely to
the Company and its Restricted Subsidiaries (as a consolidated group).
SECTION 4.12. Limitation on Incurrence of Additional Indebtedness.
After the Issue Date, the Company will not, and will not permit any of its
Restricted Subsidiaries to, directly or indirectly, issue, create, incur,
assume, guarantee or otherwise directly or indirectly become liable for
(including as a result of an acquisition), or otherwise become responsible for,
contingently or otherwise (individually or collectively, to "Incur" or, as
appropriate, an "Incurrence"), any Indebtedness. Neither the accrual of interest
(including the issuance of "pay in kind" securities or similar instruments in
respect of such accrued interest) pursuant to the terms of Indebtedness Incurred
in compliance with this covenant, nor the accretion of original issue discount,
nor the mere extension of the maturity of any Indebtedness shall be deemed to be
an Incurrence of Indebtedness.
Notwithstanding the foregoing, if there exists no Default or Event
of Default immediately prior and subsequent thereto, (x) the Company may Incur
Indebtedness if, after
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giving effect to the Incurrence of such Indebtedness, the Company's Annualized
Operating Cash Flow Ratio would have been less than 8.5 to 1 and (y) any
Restricted Subsidiary may Incur Indebtedness if such Restricted Subsidiary's
Annualized Operating Cash Flow Ratio, after giving effect to the Incurrence of
such Indebtedness, would have been less than 8.0 to 1.
In addition, if there exists no Default or Event of Default
immediately prior and subsequent thereto, the foregoing limitations will not
apply to the Incurrence of:
(i) Indebtedness by the Company or any of its Restricted
Subsidiaries constituting Existing Indebtedness, reduced by repayments of
and permanent reductions in commitments in satisfaction of the Net Cash
Proceeds application requirement under Section 4.15 and by repayments and
permanent reductions in amounts outstanding pursuant to scheduled
amortizations and mandatory prepayments in accordance with the terms
thereof;
(ii) Indebtedness, in an aggregate principal amount not in excess of
$525,000,000, permitted under the Credit Facility, reduced by (a)
repayments of and permanent reductions in commitments in satisfaction of
the Net Cash Proceeds application requirement set forth in Section 4.15
and (b) an amount equal to the sum of (A) the outstanding principal amount
of the PCW Secured Notes and (B) the aggregate amount of Indebtedness
Incurred pursuant to clause (x) below to refinance the PCW Secured Notes
or the Credit Facility so long as such amounts Incurred pursuant to clause
(x) remain outstanding; provided that, if there exists a Default or an
Event of Default immediately prior or subsequent thereto, the Company and
its Restricted Subsidiaries may Incur Indebtedness pursuant to this clause
(ii) so long as the proceeds from such Incurrence are not used, directly
or indirectly, to pay any amounts owing in respect of any Indebtedness,
including, without limitation, principal, interest and commitment fees,
other than with respect to the Securities;
(iii) Indebtedness of the Company evidenced by the Securities;
(iv) (a) Permitted Acquisition Indebtedness of the Company or any
Restricted Subsidiaries that satisfies the provisions of clause (x) of the
definition thereof or (b) Permitted Acquisition Indebtedness of any
Restricted Subsidiary that satisfies the provisions of clause (y) of the
definition thereof;
(v) Indebtedness between the Company and any Restricted Subsidiary
of the Company or between Restricted Subsidiaries of the Company;
provided, however, that, in the case of Indebtedness of the Company, such
obligations shall be unsecured and subordinated in all respects to the
Holders' rights pursuant to the Securities, and
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the date of any event that causes a Restricted Subsidiary no longer to be
a Restricted Subsidiary shall be an Incurrence Date with respect to such
Indebtedness;
(vi) Capitalized Lease Obligations and Purchase Money Indebtedness
in an aggregate amount or aggregate principal amount, as the case may be,
outstanding at any time not to exceed in the aggregate $15,000,000;
(vii) Indebtedness of the Company or any Restricted Subsidiary
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 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 to the extent none of the
foregoing results in the obligation to repay an obligation for money
borrowed by any Person and are limited in aggregate amount to no greater
than 10% of the fair market value of such business, assets or Restricted
Subsidiary so disposed of;
(viii) Indebtedness of the Company or any Restricted Subsidiary
under standby letters of credit or reimbursement obligations with respect
thereto issued in the ordinary course of business and consistent with
industry practices limited in aggregate amount to $5,000,000 at any one
time outstanding;
(ix) Indebtedness of the Company or any Restricted Subsidiary (other
than Indebtedness permitted by the first paragraph of this Section 4.12 or
clause (i) through (viii) or (x) of this Section 4.12) not to exceed
$100,000,000 at any one time outstanding; and
(x) Refinancing Indebtedness Incurred to extend, renew, replace or
refund Indebtedness permitted under the first paragraph of this Section
4.12 or clauses (i) (as so reduced in amount), (ii) (as so reduced in
amount), (iii), (iv) and (x) of this paragraph.
For purposes of determining compliance with this Section 4.12, in
the event that an item of Indebtedness meets the criteria of more than one of
the categories described above or is entitled to be incurred pursuant to the
second paragraph of this Section 4.12, the Company shall, in its sole
discretion, classify such item of Indebtedness in any manner that complies with
this Section 4.12 and such item of Indebtedness will be treated as having been
incurred pursuant to only one of such clauses or pursuant to the second
paragraph of this Section 4.12. In addition, the Company may, at any time,
change the classification of an item of Indebtedness (or any portion thereof) to
any other clause or to the second paragraph of this Section, provided that the
Company would be permitted to Incur such item of Indebtedness
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(or such portion thereof) pursuant to such other clause or the second paragraph
of this Section 4.12, as the case may be, at such time of reclassification.
Indebtedness of any Person that is not a Restricted Subsidiary of
the Company (or that is a Non-Recourse Restricted Subsidiary designated to be a
Restricted Subsidiary, but no longer a Non-Recourse Restricted Subsidiary),
which Indebtedness is outstanding at the time such Person becomes such a
Restricted Subsidiary of the Company or is merged with or into or consolidated
with the Company or a Restricted Subsidiary of the Company shall be deemed to
have been Incurred, as the case may be, at the time such Person becomes such a
Restricted Subsidiary of the Company, or is merged with or into or consolidated
with the Company or a Restricted Subsidiary of the Company.
SECTION 4.13. Limitations on Restricting Subsidiary Dividends. The
Company will not, and will not permit any of its Restricted Subsidiaries to,
with respect to securities issued directly thereby or with respect to which they
are obligors, directly or indirectly, create, assume or suffer to exist any
consensual encumbrance or restriction on the ability of any Restricted
Subsidiary of the Company to pay dividends or make other distributions on the
Capital Stock of any Restricted Subsidiary of the Company or pay or satisfy any
obligation to the Company or any of its Restricted Subsidiaries or otherwise
transfer assets or make or pay loans or advances to the Company or any of its
Restricted Subsidiaries, except encumbrances and restrictions existing under
(i) any Indebtedness permitted by this Indenture to be incurred by
any Restricted Subsidiary;
(ii) this Indenture and the Indenture governing the PCW Notes.
(iii) any Existing Indebtedness;
(iv) the Credit Facility;
(v) any applicable law or any governmental or administrative
regulation or order;
(vi) Refinancing Indebtedness permitted under this Indenture;
provided, however, that the restrictions contained in the instruments
governing such Refinancing Indebtedness are no more restrictive in the
aggregate than those contained in the instruments governing the
Indebtedness (in the good faith judgment of the Company's Board of
Directors) being refinanced immediately prior to such refinancing;
(vii) restrictions with respect solely to a Restricted Subsidiary of
the Company imposed pursuant to a binding agreement which has been entered
into for the sale
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or disposition of all or substantially all of the Capital Stock or assets
of such Restricted Subsidiary; provided, however, that such restrictions
apply solely to the Capital Stock or assets (in the good faith judgment of
the Company's Board of Directors) being sold of such Restricted
Subsidiary;
(viii) restrictions contained in any agreement relating to the
financing of the acquisition of a Person or property, business or assets
after the Issue Date which are not applicable to any Person or property,
business or assets other than the Person or property so acquired and which
either (A) were not put in place in anticipation of or in connection with
such acquisition or (B) constituted Permitted Acquisition Indebtedness of
a Person satisfying the provisions of clause (y) of the definition
thereof; or
(ix) any agreement (other than those referred to in clause (viii))
of a Person acquired by the Company or a Restricted Subsidiary of the
Company, which restrictions existed at the time of acquisition and were
not put in place in anticipation of or in connection with such
acquisition.
Notwithstanding the foregoing, neither (a) customary provisions
restricting subletting or assignment of any lease entered into the ordinary
course of business, consistent with past practices nor (b) Permitted Liens shall
in and of themselves be considered a restriction on the ability of the
applicable Restricted Subsidiary to transfer such agreement or assets, as the
case may be.
SECTION 4.14. Limitations on Liens. The Company will not and will
not permit any Restricted Subsidiary, directly or indirectly, to Incur or suffer
to exist any Lien upon any of its property or assets, whether now owned or
hereafter acquired, other than Permitted Liens unless contemporaneously
therewith effective provision is made to secure the Securities equally and
ratably with such Indebtedness with a Lien on the same properties and assets
securing such Indebtedness for so long as such Indebtedness is secured by such
lien.
SECTION 4.15. Limitation on Asset Sales and Sales of Subsidiary
Stock. After the Issue Date, the Company will not, and will not permit any of
its Restricted Subsidiaries to, in one or a series of related transactions,
convey, sell, transfer, assign or otherwise dispose of, directly or indirectly,
any of its property, businesses or assets, including by merger or consolidation,
and including any sale or other transfer or issuance of any Capital Stock of any
Restricted Subsidiary of the Company, whether by the Company or a Restricted
Subsidiary (any such transaction an "Asset Sale"), unless
(1) (a) within 360 days after the date of such Asset Sale, an amount
equal to the Net Cash Proceeds therefrom (the "Asset Sale Offer Amount")
is applied to the optional redemption of the Securities in accordance with
the terms of Section 3.01 of
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this Indenture and other Indebtedness of the Company ranking on a parity
with the Securities from time to time outstanding with similar provisions
requiring the Company to make an offer to purchase or to redeem such
Indebtedness with the proceeds from asset sales, pro rata in proportion to
the respective principal amounts (or accreted values in the case of
Indebtedness issued with an original issue discount) of the Securities and
such other Indebtedness then outstanding or to the repurchase of the
Securities and such other Indebtedness pursuant to an irrevocable,
unconditional offer (pro rata in proportion to the respective principal
amounts (or accreted values in the case of Indebtedness issued with an
original issue discount) of the Securities and such other Indebtedness
then outstanding) (the "Asset Sale Offer") to repurchase such Indebtedness
at a purchase price in cash (the "Asset Sale Offer Price") of 100% of the
principal amount thereof (or accreted value in the case of Indebtedness
issued with an original issue discount) plus, in each case, accrued
interest to the date of payment, made within 330 days of such Asset Sale,
or (b) within 330 days of such Asset Sale, the Asset Sale Offer Amount is
(i) invested (or committed, pursuant to a binding commitment subject only
to reasonable, customary closing conditions, to be invested, and in fact
is so invested, within an additional 90 days) in assets and property
(other than notes, obligations or securities), which in the good faith
reasonable judgment of the Board of Directors of the Company are of a type
used in a Related Business, or Capital Stock of a Person (which, if such
Person becomes a Subsidiary of the Company by virtue of such Asset Sale,
shall initially be designated a Restricted Subsidiary) all or
substantially all of whose assets and property (in the good faith
reasonable judgment of the Board of Directors of the Company) are of a
type used in a Related Business (provided, however, that, with respect to
such Capital Stock, all of the requirements of the last proviso of clause
(v) of the following paragraph shall have been satisfied), or (ii) used to
retire permanently any Senior Indebtedness of the Company or any
Indebtedness of a Restricted Subsidiary (other than a Non-Recourse
Restricted Subsidiary);
(2) with respect to any transaction or related series of
transactions of securities, property or assets with an aggregate fair
market value in excess of $1,000,000, at least 75% of the value of
consideration for the assets disposed of in such Asset Sale (excluding (a)
Senior Indebtedness (and any Refinancing Indebtedness issued to refinance
any such Indebtedness) or Indebtedness of any Restricted Subsidiary
assumed by a transferee which assumption permanently reduces the amount of
Indebtedness outstanding on the Issue Date and permitted to have been
Incurred pursuant to Section 4.12 (including that in the case of a
revolver or similar arrangement that makes credit available, such
commitment is permanently reduced by such amount), (b) Purchase Money
Indebtedness secured exclusively by the assets subject to such Asset Sale
which is assumed by a transferee and (c) marketable securities that are
promptly converted into cash or Cash Equivalents) consists of cash or Cash
Equiva-
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xxxxx; provided, however, that any cash or Cash Equivalents received
within 12 months following any such Asset Sale upon conversion of any
property or assets (other than in the form of cash or Cash Equivalents)
received in consideration of such Asset Sale shall be applied promptly in
the manner required of Net Cash Proceeds of any such Asset Sale as set
forth above;
(3) no Default or Event of Default shall occur or be continuing
after giving effect to, on a pro forma basis, such Asset Sale, unless such
Asset Sale is in consideration solely of cash or Cash Equivalents and such
consideration is applied immediately to the permanent reduction of the
principal amount of Indebtedness outstanding pursuant to Senior
Indebtedness of the Company or Indebtedness of any Restricted Subsidiary;
and
(4) the Board of Directors of the Company determines in good faith
that the Company or such Restricted Subsidiary, as applicable, would
receive fair market value in consideration of such Asset Sale.
An Asset Sale Offer may be deferred until the accumulated Net Cash
Proceeds from Asset Sales not applied to the uses set forth in (1)(b) of this
Section 4.15 exceeds $5,000,000. Each Asset Sale Offer shall remain open for 20
Business Days following its commencement and no longer, except as otherwise
required by applicable law (the "Asset Sale Offer Period"). Upon expiration of
the Asset Sale Offer Period, the Company shall apply the Asset Sale Offer
Amount, plus an amount equal to accrued interest, to the purchase of all
Indebtedness properly tendered (on a pro rata basis as described above if the
Asset Sale Offer Amount is insufficient to purchase all Indebtedness so
tendered) at the Asset Sale Offer Price (together with accrued interest).
Notwithstanding the foregoing provisions of the second preceding
paragraph:
(i) the Company and its Restricted Subsidiaries may, in the ordinary
course of business, convey, sell, lease, transfer, assign or otherwise
dispose of assets acquired and held for resale in the ordinary course of
business;
(ii) the Company and its Restricted Subsidiaries may convey, sell,
lease, transfer, assign or otherwise dispose of assets pursuant to and in
accordance with Article 5;
(iii) the Company and its Restricted Subsidiaries may 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;
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(iv) the Company and its Restricted Subsidiaries may convey, sell,
lease, transfer, assign or otherwise dispose of assets to the Company or
any of its Restricted Subsidiaries; and
(v) the Company and its Restricted Subsidiaries may, in the ordinary
course of business (or, if otherwise than in the ordinary course of
business, upon receipt of a favorable written opinion by an independent
financial advisor of national reputation as to the fairness from a
financial point of view to the Company or such Restricted Subsidiary of
the proposed transaction), exchange all or a portion of its property,
businesses or assets for property, businesses or assets which are, or
Capital Stock of a Person all or substantially all of whose assets are, of
a type used in a Related Business (provided that such Person shall
initially be designated a Restricted Subsidiary if such Person becomes a
Subsidiary of the Company by virtue of such Asset Sale), or a combination
of any such property, businesses or assets, or Capital Stock of such a
Person and cash or Cash Equivalents; provided, however, that (a) there
shall not exist immediately prior or subsequent thereto a Default or an
Event of Default; (b) a majority of the independent directors of the Board
of Directors of the Company shall have approved a Board Resolution that
such exchange is fair to the Company or such Restricted Subsidiary, as the
case may be; and (c) any cash or Cash Equivalents received pursuant to any
such exchange shall be applied in the manner applicable to Net Cash
Proceeds from an Asset Sale as set forth pursuant to the provisions of the
immediately preceding paragraph of this Section 4.15; and provided,
further, that any Capital Stock of a Person received in an Asset Sale
pursuant to this clause (v) shall be owned directly by the Company or a
Restricted Subsidiary and, when combined with the Capital Stock of such
Person already owned by the Company and its Restricted Subsidiaries, shall
constitute a majority of the voting power and Capital Stock of such
Person, unless (A) (I) the Company has received a binding commitment from
such Person (or the direct or indirect parent of such Person) that such
Person (or the direct or indirect parent of such Person) will distribute
to the Company in cash an amount equal to the Company's Annualized
Operating Cash Flow (determined as of the date of such Asset Sale)
attributable to the property, business or assets of the Company and its
Restricted Subsidiaries exchanged in connection with such Asset Sale
during each consecutive 12-month period subsequent to such Asset Sale
(unless and until the Company shall have sold all of such Capital Stock,
provided that the provisions of clause (B) below, if applicable, shall
have been satisfied), (II) immediately after such Asset Sale the aggregate
number of Net Pops of the Cellular Systems wireless communications systems
in which the Company or any of its Restricted Subsidiaries has ownership
interests ("Company Systems") that are owned directly by a Person or
Persons a majority of whose voting power and Capital Stock is owned
directly or indirectly by the Company is no less than 80% of the aggregate
number of Net Pops of
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Company Systems immediately prior to such Asset Sale and (III) upon
consummation of such Asset Sale, on a pro forma basis, the ratio of such
Person's Annualized Operating Cash Flow to the product of Consolidated
Interest Expense for the Reference Period multiplied by four (but
excluding from Consolidated Interest Expense all amounts that are not
required to be paid in cash on a current basis) shall be at least 1.0 to
1, or (B) in the case of Capital Stock of a Person that is not a
Subsidiary of the Company owned by the Company or a Restricted Subsidiary
that is exchanged (the "Exchanged Capital Stock") for Capital Stock of
another Person all or substantially all of whose assets are of a type used
in a Related Business, either (i) the Exchanged Capital Stock shall not
have been acquired prior to such Asset Sale in reliance upon clause (A) of
this proviso or (ii) the requirements of subclauses (A) (I) (based on the
original guaranteed cash flow) and (A) (III) shall be satisfied with
respect to any Capital Stock acquired in consideration of the Exchanged
Capital Stock.
Restricted Payments that are made in compliance with, and are
counted against amounts available to be made as Restricted Payments pursuant to
clause (c) of Section 4.04, without giving effect to clause (i) of the second
paragraph thereof, shall not be deemed to be Asset Sales.
Any Asset Sale Offer shall be made in compliance with all applicable
laws, rules, and regulations, including, if applicable, Regulation 14E of the
Exchange Act and the rules and regulations thereunder and all other applicable
Federal and state securities laws.
The Company shall accumulate all Net Cash Proceeds and the aggregate
amount of such accumulated Net Cash Proceeds not used for the purposes permitted
and within the time provided by clause (1)(b) of the first paragraph of this
Section 4.15 is referred to as the "Accumulated Amount."
For purposes of this Section 4.15, "Minimum Accumulation Date" means
each date on which the Accumulated Amount exceeds $5,000,000. Not later than 10
Business Days after each Minimum Accumulation Date, the Company will commence an
Asset Sale Offer, which shall be consummated on a date (the "Asset Sale Purchase
Date") which shall be no later than 40 Business Days after the Minimum
Accumulation Date related thereto. Notice of an Asset Sale Offer will be sent 20
Business Days prior to the close of business on the earlier of (a) the third
Business Day prior to the Asset Sale Purchase Date and (b) the third Business
Day following the expiration of the Asset Sale Offer (such earlier date being
the "Final Put Date"), by first-class mail, by the Company to each Holder at its
registered address, with a copy to the Trustee. The notice to the Holders will
contain all information, instructions and materials required by applicable law
or otherwise material to such Holders' decision to tender Securities pursuant to
the Asset Sale Offer. The notice to Holders, which (to the extent consistent
with this Indenture) shall govern the terms of the Asset Sale Offer, shall
state:
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(1) that the Asset Sale Offer is being made pursuant to such notice
and this Section 4.15;
(2) the Asset Sale Offer Amount, the Asset Sale Offer Price
(including the amount of accrued and unpaid interest), the Final Put Date,
and the Asset Sale Purchase Date, which Asset Sale Purchase Date shall be
on or prior to 40 Business Days following the Minimum Accumulation Date;
(3) that any Security or portion thereof not tendered or accepted
for payment will continue to accrue interest;
(4) that, unless the Company defaults in depositing cash with the
Paying Agent in accordance with the penultimate paragraph of this Section
4.15 or such payment is otherwise prevented, any Security, or portion
thereof, accepted for payment pursuant to the Asset Sale Offer shall cease
to accrue interest after the Asset Sale Purchase Date;
(5) that Holders electing to have a Security, or portion thereof
purchased pursuant to an Asset Sale Offer will be required to surrender
the Security, with the form entitled "Option of Holder to Elect Purchase"
on the reverse of the Security completed, to the Paying Agent (which may
not for purposes of this Section 4.15, notwithstanding anything in this
Indenture to the contrary, be the Company or any Affiliate of the Company)
at the address specified in the notice prior to the close of business on
the Final Put Date;
(6) that Holders will be entitled to withdraw their elections, in
whole or in part, if the Paying Agent (which may not for purposes of this
Section, notwithstanding any other provision of this Indenture, be the
Company or any Affiliate of the Company) receives, up to the close of
business on the Final Put Date, a telegram, telex, facsimile transmission
or letter setting forth the name of the Holder, the principal amount of
the Securities the Holder is withdrawing and a statement that such Holder
is withdrawing his election to have such principal amount of Securities
purchased;
(7) that if Indebtedness in a principal amount in excess of the
principal amount of Securities to be acquired pursuant to the Asset Sale
Offer is tendered and not withdrawn, the Company shall purchase
Indebtedness on a pro rata basis in proportion to the respective principal
amounts (or accreted values in the case of Indebtedness issued with an
original issue discount) thereof (with such adjustments as may be deemed
appropriate by the Company so that only Securities in denominations of
$1,000 or integral multiples of $1,000 shall be acquired);
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(8) that Holders whose Securities were purchased only in part will
be issued new Securities equal in principal amount to the unpurchased
portion of the Securities surrendered; and
(9) a brief description of the circumstances and relevant facts
regarding such Asset Sales.
Any such Asset Sale Offer shall comply with all applicable
provisions of applicable Federal and state laws, rules and regulations,
including those regulating tender offers, if applicable, and any provisions of
this Indenture that conflict with such laws shall be deemed to be superseded by
the provisions of such laws.
On or before an Asset Sale Purchase Date, the Company shall (i)
accept for payment Securities or portions thereof properly tendered and not
properly withdrawn pursuant to the Asset Sale Offer on or before the Final Put
Date (on a pro rata basis if required pursuant to paragraph (7) hereof), (ii)
deposit with the Paying Agent cash sufficient to pay the Asset Sale Offer Price
for all Securities or portions thereof so tendered and accepted and (iii)
deliver to the Trustee Securities so accepted together with an Officers'
Certificate stating the Securities or portions thereof being purchased by the
Company. The Paying Agent shall on each Asset Sale Purchase Date mail or deliver
to Holders of securities so accepted payment in an amount equal to the Asset
Sale Offer Price for such Securities, and the Trustee shall promptly
authenticate and mail or deliver to such Holders a new Security equal in
principal amount to any unpurchased portion of the Security surrendered. Any
Security not so accepted shall be promptly mailed or delivered by the Company to
the Holder thereof.
If the amount required to acquire all Indebtedness properly tendered
by Holders pursuant to the Asset Sale Offer (the "Acceptance Amount") made
pursuant to this Section 4.15 is less than the Asset Sale Offer Amount, the
excess of the Asset Sale Offer Amount over the Acceptance Amount may be used by
the Company for general corporate purposes without restriction, unless otherwise
restricted by the other provisions of this Indenture. Upon consummation of an
Asset Sale offer made in accordance with the terms of this Indenture, the
Accumulated Amount will be reduced to zero irrespective of the amount of
Indebtedness tendered pursuant to the Asset Sale Offer.
SECTION 4.16. Waiver of Stay, Extension or Usury Laws. The Company
covenants (to the extent that it may lawfully do so) that it will not at any
time insist upon, plead, or in any manner whatsoever claim or take the benefit
or advantage of, any stay or extension law or any usury law or other law which
would prohibit or forgive the Company from paying all or any portion of the
principal of, premium of, or interest on the Securities as contemplated herein,
wherever enacted, now or at any time hereafter in force, or which may affect the
covenants or the performance of this Indenture; and (to the extent that it may
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lawfully do so) the Company 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.
SECTION 4.17. [Reserved].
SECTION 4.18. Limitation on Lines of Business. The Company shall
not, nor shall it permit any of its Restricted Subsidiaries to, engage directly
or indirectly in any line or lines of business activity other than that which,
in the reasonable, good faith judgment of the Board of Directors of the Company,
is a Related Business.
SECTION 4.19. Restriction on Sale and Issuance of Subsidiary Stock.
The Company will not sell, and will not permit any of its Restricted
Subsidiaries to issue or sell, any shares of Capital Stock of any Restricted
Subsidiary of the Company to any Person other than the Company or a Wholly Owned
Restricted Subsidiary of the Company, except for shares of common stock with no
preferences or special rights or privileges and with no redemption or prepayment
provisions ("Special Rights"); provided, however, that, in the case of a
Restricted Subsidiary that is a partnership or joint venture partnership (a
"Restricted Partnership") the Company or any of its Restricted Subsidiaries may
sell or such Restricted Partnership may issue or sell Capital Stock of such
Restricted Partnership with Special Rights no more favorable than those held by
the Company or such Restricted Subsidiary in such Restricted Partnership.
SECTION 4.20. Limitation on Pledged Shares. The Company shall not be
permitted to pledge the stock of Price Communications Wireless, Inc. ("PCW") or
the stock of any Restricted Subsidiary that owns common stock of PCW except
pursuant to the Credit Facility. The Company is required to own, directly or
indirectly, 100% of the common stock of PCW.
ARTICLE 5
SUCCESSOR CORPORATION
SECTION 5.01. Limitation on Merger, Sale or Consolidation. The
Company will not consolidate with or merge with or into another Person, or sell,
lease, convey, transfer or otherwise dispose of all or substantially all of its
and its Restricted Subsidiaries' assets (computed on a consolidated basis),
whether in a single transaction or a series of related transactions, to another
Person or group of affiliated Persons, unless
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(i) either (a) the Company is the continuing entity or (b) the
resulting surviving or transferee entity is a corporation organized under
the laws of the United States, any state thereof or the District of
Columbia and expressly assumes by supplemental indenture all of the
obligations of the Company in connection with the Securities and this
Indenture; provided, however, that in the case of a sale, lease,
conveyance, transfer or other disposition of all or substantially all of
the Company's and its Restricted Subsidiaries' assets, the provisions of
this clause (i)(b) need not be met if all of the consideration in respect
of such transaction is received by the Company and its Restricted
Subsidiaries (other than any Non-Recourse Restricted Subsidiary);
(ii) no Default or Event of Default shall exist or shall occur
immediately after giving effect on a pro forma basis to such transaction;
(iii) (a) immediately after giving pro forma effect to such
transaction, the consolidated resulting surviving or transferee entity
(or, in the case contemplated by the proviso to clause (i)(b), the
Company) would immediately thereafter be permitted to incur at least $1.00
of additional Indebtedness pursuant to the Annualized Operating Cash Flow
Ratio provision set forth in the second paragraph of Section 4.12 or (b),
if the requirement of clause (a) is not satisfied, (x) any Indebtedness of
the resulting surviving or transferee entity (or, in the case contemplated
by the proviso to clause (i)(b), the Company) in excess of the amount of
the Company's Indebtedness immediately prior to such transaction is
Permitted Acquisition Indebtedness and (y) the requirement of clause (a)
is not satisfied solely due to the Incurrence of such Permitted
Acquisition Indebtedness; and
(iv) the Company shall have delivered to the Trustee an Officers'
Certificate and an opinion of counsel, if applicable, confirming
compliance with the requirements of this Section 5.01.
SECTION 5.02. Successor Corporation Substituted. Upon any
consolidation or merger or any transfer of all or substantially all of the
assets of the Company in accordance with the foregoing, the successor
corporation formed by such consolidation or into which the Company is merged or
to which such transfer is made, shall (other than as provided in the proviso to
clause (i)(b) of the preceding paragraph) 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 corporation had been named therein as the
Company, and the Company shall be released from the obligations under the
Securities and this Indenture.
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ARTICLE 6
EVENTS OF DEFAULT AND REMEDIES
SECTION 6.01. 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 caused voluntarily or involuntarily or
effected, without limitation, 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) the failure by the Company to pay any installment of interest on
the Securities as and when the same becomes due and payable and the
continuance of any such failure for 30 days;
(b) the failure by the Company to pay all or any part of the
principal, or premium, if any, on the Securities when and as the same
becomes due and payable at maturity, redemption, by acceleration or
otherwise, including, without limitation, payment of the Change of Control
Purchase Price or the Asset Sale Offer Price;
(c) the failure by the Company to observe or perform any other
covenant or agreement contained in the Securities or this Indenture and,
subject to certain exceptions, the continuance of such failure for a
period of 30 days after written notice is given to the Company by the
Trustee or to the Company and the Trustee by the Holders of at least 25%
in aggregate principal amount of the Securities outstanding;
(d) a decree, judgment, or order by a court of competent
jurisdiction shall have been entered adjudging the Company or any of its
Significant Restricted Subsidiaries as bankrupt or insolvent, or approving
as properly filed a petition seeking reorganization of the Company or any
of its Significant Restricted Subsidiaries under any bankruptcy or similar
law, and such decree or order shall have continued undischarged and
unstayed for a period of 60 days; or a decree or order of a court of
competent jurisdiction over the appointment of a receiver, liquidator,
trustee, or assignee in bankruptcy or insolvency of the Company, any of
its Significant Restricted Subsidiaries, or of the property of any such
Person, or for the winding up or liquidation of the affairs of any such
Person, shall have been entered, and such decree, judgment, or order shall
have remained in force undischarged and unstayed for a period of 60 days;
(e) the Company or any of its Significant Restricted Subsidiaries
shall institute proceedings to be adjudicated a voluntary bankrupt, or
shall consent to the filing of a bankruptcy proceeding against it, or
shall file a petition or answer or consent seeking
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reorganization under any bankruptcy or similar law or similar statute, or
shall consent to the filing of any such petition, or shall consent to the
appointment of a Custodian in bankruptcy or insolvency of it or any of its
assets or property, or shall make a general assignment for the benefit of
creditors, or shall admit in writing its inability to pay its debts
generally as they become due, or shall, within the meaning of any
Bankruptcy Law, become insolvent, fails generally to pay its debts as they
become due, or takes any corporate action in furtherance of or to
facilitate, conditionally or otherwise, any of the foregoing;
(f) the failure to pay at final stated maturity (giving effect to
any applicable grace periods and any extensions thereof) the principal
amount of any Indebtedness of the Company or any Restricted Subsidiary of
the Company or the acceleration of the final stated maturity of any
Indebtedness if the aggregate principal amount of such Indebtedness,
together with the principal amount of any other such Indebtedness in
default for failure to pay principal at final maturity or which has been
accelerated, aggregates $15,000,000 or more at any time; and
(g) final unsatisfied judgments not covered by insurance aggregating
in excess of $5,000,000, at any one time rendered against the Company or
any of the Company's Restricted Subsidiaries and not stayed, bonded or
discharged within 60 days.
If a Default occurs and is continuing, the Trustee must, within 90
days after the occurrence of any Default or Event of Default, give to the
Holders notice of all uncured Defaults or Events of Default thereunder known to
it; provided, however, that, except in the case of an Event of Default in
payment with respect to such Securities the Trustee shall be protected in
withholding such notice if and so long as a committee of its trust officers in
good faith determines that the withholding of such notice is in the interest of
the Holders.
SECTION 6.02. Acceleration of Maturity Date; Rescission and
Annulment. If an Event of Default occurs and is continuing (other than an Event
of Default specified in clause (d) or (e) of Section 6.01 relating to the
Company or any Significant Restricted Subsidiary), then in every such case,
unless the principal amount of all of the Securities shall have already become
due and payable, either the Trustee or the Holders of 25% in aggregate principal
amount of the Securities then outstanding, by notice in writing to the Company
(and to the Trustee if given by Holders) (an "Acceleration Notice") may declare
all the aggregate principal amount and accrued interest thereon, if applicable,
to be due and payable and the same (i) shall become immediately due and payable
or (ii) if there are any amounts outstanding under the Credit Facility and the
Company has guaranteed the repayment of principal and interest on the Credit
Facility, shall become immediately due and payable upon the first to occur of an
acceleration under the Credit Facility or five business days after receipt by
the Company and the representative of the holders of the Indebtedness under the
Credit Facility of the
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Acceleration Notice, but only if such Event of Default is then continuing. If an
Event of Default specified in clause (d) or (e) of Section 6.01, relating to the
Company or any Significant Restricted Subsidiary, occurs, the principal and
accrued interest, if applicable, thereon will be immediately due and payable on
all outstanding Securities without any declaration or other act on the part of
Trustee or the Holders.
At any time after such 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 6, the Holders of a
majority in aggregate principal amount of then-outstanding Securities, by
written notice to the Company and the Trustee, may rescind, on behalf of all
Holders, any such declaration of acceleration if:
(1) the Company has paid or deposited with the Trustee cash
sufficient to pay
(A) all overdue interest on all Securities,
(B) the principal of (and premium, if any, applicable to any
Securities which would become due otherwise than by such
declaration of acceleration, and interest thereon at the
rate borne by the Securities,
(C) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate borne by the
Securities,
(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 the
principal amount of, premium, if any, and interest on Securities which
have become due solely by such declaration of acceleration, have been
cured or waived as provided in Section 6.12, including, if applicable, any
Event of Default relating to the covenants contained in Section 11.01.
Notwithstanding the previous sentence of this Section 6.02, no waiver shall be
effective against any Holder for any Event of Default or event which with notice
or lapse of time or both would be an Event of Default with respect to any
covenant or provision which cannot be modified or amended without the consent of
the Holder of each outstanding Security affected thereby, unless all such
affected Holders agree, in writing, to waive such Event of Default or
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other event. No such waiver shall cure or waive any subsequent Default or impair
any right consequent thereon.
In the event of a declaration of acceleration of the Securities
because an Event of Default has occurred and is continuing as a result of the
acceleration of any Indebtedness described in Section 6.01(f), the declaration
of acceleration of the Securities shall be automatically annulled if the holders
of all Indebtedness described in Section 6.01 (f) (without any payment of any
holders of any such Indebtedness) have rescinded the declaration of acceleration
in respect of such Indebtedness within 30 days of the date of such declaration
and if (i) the annulment of the acceleration of the Securities would not
conflict with any judgment or decree of a court of competent jurisdiction and
(ii) all Events of Default, except nonpayment of principal interest on the
Securities that became due solely because of the acceleration of the Securities,
have been cured or waived.
SECTION 6.03. Collection of Indebtedness and Suits for Enforcement
by Trustee. The Company covenants that if an Event of Default in payment of
principal, premium, or interest specified in clause (a) or (b) of Section 6.01
occurs and is continuing, the Company shall, upon demand of the Trustee, pay to
it, for the benefit of the Holders of such Securities, the whole amount then due
and payable on such Securities for principal, premium (if any) and interest,
and, to the extent that payment of such interest shall be legally enforceable,
interest on any overdue principal (and premium, if any) and on any overdue
interest, at the rate borne by the Securities, and, in addition thereto, such
further amount as shall be sufficient to cover the reasonable costs and expenses
of collection, including Compensation to, and 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 and as trustee of an express trust in favor of the
Holders, 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
Securities 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 Securities, 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
effective 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 therein, or to enforce any other proper
remedy.
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SECTION 6.04. Trustee May File Proofs of Claim. In case of the
pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to the Company or any other obligor upon the Securities or
the property of the Company or of such other obligor or their creditors, the
Trustee (irrespective of whether the principal of the Securities 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 or interest) shall be entitled and
empowered, by intervention in such proceeding or otherwise to take any and all
actions under the TIA, including
(1) 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
Securities 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, disbursements and
advances of the Trustee, its agent and counsel) and of the Holders allowed
in such judicial proceeding, and
(2) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
and any Custodian in any such judicial proceeding is hereby authorized by each
Holder to make such payments to the Trustee and, in the event that the Trustee
shall consent to the making of such payments directly to the Holders, to pay to
the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 7.07.
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 securities
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 6.05. Trustee May Enforce Claims Without Possession of
Securities. All rights of action and claims under this Indenture or the
Securities may be prosecuted and enforced by the Trustee without the possession
of any of the securities or the production thereof in any proceeding relating
thereto, and any such proceeding instituted by the Trustee shall be brought in
its own name as trustee of an express trust in favor of the Holders, and any
recovery of judgment shall, after provision for the payment of compensation to,
and expenses, disbursements and advances of the Trustee, its agents and counsel,
be for the ratable benefit of the Holders of the Securities in respect of which
such judgment has been recovered.
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SECTION 6.06. Priorities. Any money collected by the Trustee
pursuant to this Article 6 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, premium (if any) or interest, upon presentation of the
Securities and the notation thereon of the payment if only partially paid and
upon surrender thereof if fully paid:
FIRST: To the Trustee in payment of all amounts due pursuant to
Section 7.07;
SECOND: To the Holders in payment of the amounts then due and unpaid
for principal of, premium (if any) and interest on, the Securities in
respect of which or for the 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 Securities for principal, premium
(if any) and interest, respectively; and
THIRD: To whomsoever may be lawfully entitled thereto, the
remainder, if any.
SECTION 6.07. Limitation on Suits. No Holder of any Security shall
have any right to order or direct the Trustee 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
(A) such Holder has previously given written notice to the Trustee
of a continuing Event of Default;
(B) the Holders of not less than 25% in principal amount of
then-outstanding Securities 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;
(C) such Holder or Holders have offered to the Trustee reasonable
security or indemnity against the costs, expenses and liabilities to be
incurred or reasonably probable to be incurred in compliance with such
request;
(D) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(E) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a
majority in principal amount of the outstanding Securities;
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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 6.08. Unconditional Right of Holders to Receive Principal,
Premium and Interest. Notwithstanding any other provision of this Indenture, the
Holder of any Security shall have the right, which is absolute and
unconditional, to receive payment of the principal of, and premium (if any) and
accrued interest on, such Security on the Maturity Date of such payments as
expressed in such Security (in the case of redemption, the Redemption Price on
the applicable Redemption Date, in the case of a Change of Control Payment, on
the applicable Change of Control Payment Date, and, in the case of an Asset Sale
Offer, the Asset Sale Offer Price on the Asset Sale Purchase Date) and to
institute suit for the enforcement of any such payment after such respective
dates, and such rights shall not be impaired without the consent of such Holder.
SECTION 6.09. Rights and Remedies Cumulative. Except as otherwise
provided with respect to the replacement or payment of mutilated, destroyed,
lost or stolen Securities in Section 2.07, 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 6.10. Delay or Omission Not Waiver. No delay or omission by
the Trustee or by any Holder of any Security to exercise any right or remedy
arising upon any Event of Default shall impair the exercise of any such right or
remedy or constitute a waiver of any such Event of Default. Every right and
remedy given by this Article 6 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 6.11. Control by Holders. The Holder or Holders of a
majority in aggregate principal amount of then outstanding Securities will 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
upon the Trustee, provided that
(1) such direction shall not be in conflict with any rule of law or
with this Indenture,
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(2) the Trustee shall not determine that the action so directed
would be unjustly prejudicial to the Holders not taking part in such
direction, and
(3) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
SECTION 6.12. Waiver of Past Default. Subject to Section 6.08, the
Holder or Holders of not less than a majority in aggregate principal amount of
the outstanding Securities may, on behalf of all Holders, prior to the
declaration of the acceleration of the maturity of the Securities, waive any
past default hereunder and its consequences, except a default
(A) in the payment of the principal of, or interest on, any Security
as specified in clauses (a) and (b) of Section 6.01, or
(B) in respect of a covenant or provision hereof which, under
Article 9, cannot be modified or amended without the consent of the Holder
of each outstanding Security 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 impair the exercise of any right arising therefrom.
SECTION 6.13. Undertaking for Costs. All parties to this Indenture
agree, and each Holder of any Security by his acceptance thereof shall he 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 in any suit
against the Trustee for any action taken, suffered or omitted to be taken 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 6.13 shall not apply to any suit instituted by the Company, to any suit
instituted by the Trustee, to any suit instituted by any Holder, or group of
Holders, holding in the aggregate more than 100% in aggregate principal amount
of the outstanding Securities, or to any suit instituted by any Holder for
enforcement of the payment of principal of, or premium (if any) or interest on,
any Security on or after the Maturity Date expressed in such Security
(including, in the case of redemption, on or after the Redemption Date).
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SECTION 6.14. 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 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.
ARTICLE 7
TRUSTEE
The Trustee hereby accepts the trust imposed upon it by this
Indenture and covenants and agrees to perform the same, as herein expressed.
SECTION 7.01. Duties of Trustee. (a) If a Default or an Event of
Default has occurred and is continuing, the Trustee shall exercise such of the
rights and powers vested in it by this Indenture and use the same degree of care
and skill in their exercise as a prudent Person would exercise or use under the
circumstances in the conduct of his own affairs.
(b) Except during the continuance of a Default or an Event of
Default:
(1) The Trustee need perform only those duties as are specifically
set forth in this Indenture and no others, and no covenants or obligations
shall be implied in or read into this Indenture which are adverse to the
Trustee.
(2) In the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness
of the opinions expressed therein, upon certificates or opinions furnished
to the Trustee and conforming to the requirements of this Indenture.
However, the Trustee shall examine the certificates and opinions to
determine whether or not they conform to the requirements of this
Indenture.
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(1) This paragraph does not limit the effect of paragraph (b) of
this Section 7.01.
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(2) The Trustee shall not be liable for any error of judgment made
in good faith by a Trust Officer, unless it is proved that the Trustee was
negligent in ascertaining the pertinent facts.
(3) The Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.11.
(d) No provision of this Indenture shall require the trustee to
expend or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder or to take or omit to take any action
under this Indenture or at the request, order or direction of the Holders 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.
(e) Every provision of this Indenture that in any way relates to the
Trustee is subject to paragraphs (a), (b), (c), (d) and (f) of this Section
7.01.
(f) The Trustee shall not be liable for interest on any assets
received by it except as the Trustee may agree in writing with the Company.
Assets held in trust by the Trustee need not be segregated from other assets
except to the extent required by law.
SECTION 7.02. Rights of Trustee. Subject to Section 7.01:
(a) The Trustee may rely on any document believed by it to be
genuine and to have been signed or presented by the proper Person. The
Trustee need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may consult
with counsel and may require an Officers' Certificate or an Opinion of
Counsel, which shall conform to Sections 12.04 and 12.05. The Trustee
shall not be liable for any action it takes or omits to take in good faith
in reliance on such certificate or advice of counsel.
(c) The Trustee may act through its attorneys and agents and shall
not be responsible for the misconduct or negligence of any agent appointed
with due care.
(d) The Trustee will not be liable for any action it takes or omits
to take in good faith which it believes to be authorized or within its
rights or powers conferred upon it by this Indenture.
(e) The Trustee will not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, notice, re-
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quest, direction, consent, order, bond, debenture, 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.
(f) The Trustee will be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request, order or
direction of any of the Holders, pursuant to the provisions of this
Indenture, unless such Holders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and
liabilities which may be incurred therein or thereby.
(g) Unless otherwise specifically provided for in this Indenture,
any demand, request, direction or notice from the Company shall be
sufficient if signed by an Officer of the Company.
(h) The Trustee shall have no duty to inquire as to the performance
of the covenants in Article 4 hereof. In addition, the Trustee shall not
be deemed to have knowledge of any Default or Event of Default except (i)
any Event of Default occurring pursuant to Sections 6.01(a), 6.01(b) and
4.02, or (ii) any Default or Event of Default of which the Trustee shall
have received written notification or obtained actual knowledge.
SECTION 7.03. Individual Rights of Trustee. The Trustee in its
individual or any other capacity may become the owner or pledgee of Securities
and may otherwise deal with the Company or any of the Company's Subsidiaries, or
their respective Affiliates with the same rights it would have if it were not
Trustee. Any Agent may do the same with like rights. However, the Trustee must
comply with Sections 7.10 and 7.11.
SECTION 7.04. Trustee's Disclaimer. The Trustee makes no
representation as to the validity or adequacy of this Indenture or the
Securities and it shall not be accountable for the Company's use of the proceeds
from the Securities, and it shall not be responsible for any statement in the
Securities, other than the Trustee's certificate of authentication, or the use
or application of any funds received by a Paying Agent other than the Trustee.
SECTION 7.05. Notice of Default. If a Default or an Event of Default
occurs and is continuing and if it is known to the Trustee, the Trustee shall
mail to each Securityholder notice of the uncured Default or Event of Default
within 90 days after such Default or Event of Default occurs. Except in the case
of a Default or an Event of Default in payment of principal (or premium, if any)
of, or interest on, any Security (including the payment of the Change of Control
Purchase Price on the Change of Control Payment Date, the payment of the
Redemption Price on the Redemption Date and the payment of the Offer Price on
the Purchase Date), the Trustee may withhold the notice if and so long as a
Trust
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Officer in good faith determines that withholding the notice is in the interest
of the Securityholders.
SECTION 7.06. Reports by Trustee to Holders. Within 60 days after
each December 15 beginning with the December 15 following the date of this
Indenture, the Trustee shall, if required by law, mail to each Securityholder a
brief report dated as of such December 15 that complies with TIA ss. 313(a). The
Trustee also shall comply with TIA ss. 313(b) and ss. 313(c).
The Company shall promptly notify the Trustee in writing if the
Securities become listed on any stock exchange or automatic quotation system.
A copy of each report at the time of its mailing to Securityholders
shall be mailed to the Company and filed with the SEC and each stock exchange,
if any, on which the Securities are listed, in accordance with and to the extent
required by TIA ss. 313(d).
SECTION 7.07. Compensation and Indemnity. The Company agrees to pay
to the Trustee from time to time reasonable compensation for its services. The
Trustee's compensation shall not be limited by any law on compensation of a
trustee of an express trust. The Company shall reimburse the Trustee upon
request for all reasonable disbursements, expenses and advances incurred or made
by it. Such expenses shall include the reasonable compensation, disbursements
and expenses of the Trustee's agents, accountants, experts and counsel.
The Company agrees to indemnify the Trustee (in its capacity as
Trustee) and each of its officers, directors, attorneys-in-fact and agents for,
and hold it harmless against, any claim, demand, expense (including but not
limited to reasonable compensation, disbursements and expenses of the Trustee's
agents and counsel), loss or liability incurred by it without negligence or bad
faith on its part, arising out of or in connection with the administration of
this trust and its rights or duties hereunder including the reasonable 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 Company shall defend the claim and
the Trustee shall provide reasonable cooperation at the Company's expense in the
defense. The Trustee may have separate counsel and the Company shall pay the
reasonable fees and expenses of such counsel; provided that the Company will not
be required to pay such fees and expenses if they assume the Trustee's defense
and there is no conflict of interest between the Company and the Trustee in
connection with such defense. The Company need not pay for any settlement made
without their written consent. The Company need not reimburse any expense or
indemnify against any loss or liability to the extent incurred by the Trustee
through its negligence, bad faith or willful misconduct.
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To secure the Company's payment obligations in this Section 7.07,
the Trustee shall have a lien prior to the Securities on all assets held or
collected by the Trustee, in its capacity as Trustee, except assets held in
trust to pay principal and premium, if any, of or interest on particular
Securities.
When the Trustee incurs expenses or renders services after an Event
of Default specified in Section 6.01(e) or (f) occurs, the expenses and the
compensation for the services are intended to constitute expenses of
administration under any Bankruptcy Law.
The Company's obligations under this Section 7.07 and any lien
arising hereunder shall survive the resignation or removal of the Trustee, the
discharge of the Company's obligations pursuant to Article 8 of this Indenture
and any rejection or termination of this Indenture under any Bankruptcy Law.
SECTION 7.08. Replacement of Trustee. The Trustee may resign by so
notifying the Company in writing. The Holder or Holders of a majority in
principal amount of the outstanding Securities may remove the Trustee by so
notifying the Company and the Trustee in writing and may appoint a successor
trustee with the Company's consent. The Company may remove the Trustee if:
(a) the Trustee fails to comply with Section 7.10;
(b) the Trustee is adjudged bankrupt or insolvent;
(c) a receiver, Custodian, or other public officer takes charge of
the Trustee or its property; or
(d) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, the Company shall promptly appoint a successor
Trustee. Within one year after the successor Trustee takes office, the Holder or
Holders of a majority in principal amount of the Securities may appoint a
successor Trustee to replace the successor Trustee appointed by the Company.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Immediately after that
and provided that all sums owing to the Trustee provided for in Section 7.07
have been paid, the retiring Trustee shall transfer all property held by it as
trustee to the successor Trustee, subject to the lien provided in Section 7.07,
the resignation or removal of the retiring Trustee shall become effective, and
the successor Trustee shall have all the rights, powers and duties of the
Trustee under this Indenture. A successor Trustee shall mail notice of its
succession to each Holder.
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If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company or the
Holder or Holders of at least 10% in principal amount of the outstanding
Securities may petition any court of competent jurisdiction for the appointment
of a successor Trustee.
If the Trustee fails to comply with Section 7.10, any Securityholder
may petition any court of competent jurisdiction for the removal of the Trustee
and the appointment of a successor Trustee.
Notwithstanding replacement of the Trustees pursuant to this Section
7.08, the Company's obligations under Section 7.07 all continue for the benefit
of the retiring Trustee.
SECTION 7.09. Successor Trustee by Merger, Etc. If the Trustee
consolidates with, merges or converts into, or transfers all or substantially
all of its corporate trust business to, another corporation, the resulting,
surviving or transferee corporation without any further act shall, if such
resulting, surviving or transferee corporation is otherwise eligible hereunder,
be the successor Trustee.
SECTION 7.10. Eligibility; Disqualification. The Trustee shall at
all times satisfy the requirements of TIA ss. 310(a)(1), (2) and (5). The
Trustee shall have a combined capital and surplus of at least $10,000,000 as set
forth in its most recent published annual report of condition. The Trustee shall
comply with TIA ss. 310(b).
SECTION 7.11. Preferential Collection of Claims Against Company. The
Trustee, in its capacity as Trustee hereunder, shall comply with TIA ss. 311(a),
excluding any creditor relationship listed in TIA ss. 311(b). A Trustee who has
resigned or been removed shall be subject to TIA ss. 311(a) to the extent
indicated.
ARTICLE 8
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
SECTION 8.01. Option to Effect Legal Defeasance or Covenant
Defeasance. The Company may, at its option and at any time, elect to have
Section 8.02 or Section 8.03 applied to all outstanding Securities upon
compliance with the conditions set forth below in this Article 8.
SECTION 8.02. Legal Defeasance and Discharge. Upon the Company's
exercise under Section 8.01 of the option applicable to this Section 8.02, the
Company shall be deemed to have been discharged from its obligations with
respect to all outstanding
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Securities on the date the conditions set forth below are satisfied
(hereinafter, "Legal Defeasance"). For this purpose, such Legal Defeasance means
that the Company shall be deemed to have paid and discharged the entire
Indebtedness represented by the outstanding Securities, which shall thereafter
be deemed to be "outstanding" only for the purposes of Section 8.05 and the
other Sections of this Indenture referred to in (a) and (b) below, and this
Indenture shall cease to be of further effect as to all outstanding Securities
(and the Trustee, on demand of and 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 Securities to receive solely from the trust fund
described in Section 8.04, and as more fully set forth in such Section 8.04,
payments in respect of the principal of, premium, if any, and interest on such
Securities when such payments are due, (b) the Company's obligations with
respect to such Securities under Sections 2.04, 2.06, 2.07, 2.10 and 4.03, (c)
the rights, powers, trusts, duties and immunities of the Trustee hereunder and
the Company's obligations in connection therewith and (d) this Article 8.
Subject to compliance with this Article 8, the Company may exercise its option
under this Section 8.02 notwithstanding the prior exercise of its option under
Section 8.03 with respect to the Securities.
SECTION 8.03. Covenant Defeasance. Upon the Company's exercise under
Section 8.01 of the option applicable to this Section 8.03, the Company shall be
released from its obligations under the covenants contained in Sections 4.04,
4.06, 4.07, 4.08, 4.09, 4.11, 4.12, 4.13, 4.14, 4.15, 4.18, 4.19, 4.20, 4.21,
Article 5 (other than the obligation of any successor to assume the obligations
of the Company hereunder) and Article 11 with respect to the outstanding
Securities on and after the date the conditions set forth below are satisfied
(hereinafter, "Covenant Defeasance"), and the Securities shall thereafter be
deemed not "outstanding" for the purposes of any direction, waiver, consent or
declaration or act of Holders (and the consequences of any thereof) in
connection with such covenants, but shall continue to be deemed "outstanding"
for all other purposes hereunder. For this purpose, such Covenant Defeasance
means that, with respect to the outstanding Securities, the Company need not
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, but, except as specified above, the remainder of this Indenture and
such Securities shall be unaffected thereby.
SECTION 8.04. Conditions to Legal or Covenant Defeasance. The
following shall be the conditions to the application of either Section 8.02 or
Section 8.03 to the outstanding Securities:
(a) The Company must irrevocably deposit or caused to be deposited
with the Trustee (or another trustee satisfying the requirements of
Section 7.10 who shall agree
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to comply with the provisions of this Article 8 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 Securities, (a) U.S. Legal Tender, or (b)
non-callable government securities, or (c) a combination thereof, in such
amounts, as in each case will be sufficient, in the opinion of a
nationally recognized firm of independent public accountants 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 (i) the principal of, premium, if any, and
interest on the outstanding Securities on the Stated Maturity or on the
applicable Redemption Date, as the case may be, of such principal or
installment of principal, premium, if any, or interest and the Holders of
Securities shall have a valid, perfected, exclusive security interest in
the assets of such trust; provided that the Trustee shall have been
irrevocably instructed to apply such cash and the proceeds of such U.S.
Government Obligations or U.S. Legal Tender Equivalents to said payments
with respect to the Securities;
(b) In the case of an election under Section 8.02, the Company shall
have delivered to the Trustee an Opinion of Counsel in the United States
reasonably acceptable to the Trustee confirming that (i) the Company has
received from, or there has been published by, the Internal Revenue
Service a ruling or (ii) since the date hereof, there as been a change in
the applicable Federal income tax law, in either case to the effect that,
and based thereon such opinion shall confirm that, the Holders of the
outstanding Securities will not recognize income, gain or loss for Federal
income tax purposes as a result of such Legal Defeasance and will be
subject to Federal income tax on the same amounts, in the same manner and
at the same times as would have been the case if such Legal Defeasance had
not occurred;
(c) In the case of an election under Section 8.03, the Company shall
have delivered to the Trustee an Opinion of Counsel in the United States
reasonably acceptable to such Trustee confirming that the Holders of the
outstanding Securities 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 in the same amount, in the same manner and
at the same times as would have been the case if such Covenant Defeasance
had not occurred;
(d) No Default or Event of Default (other than a Default or Event of
Default resulting from the borrowing of funds to be applied to such
deposit or such deposit) shall have occurred and be continuing on the date
of such deposit or, insofar as Section 6.01(e) or 6.01(f) is concerned, at
any time during the period ending on the 91st day after the date of such
deposit (it being understood that this condition is a condition subsequent
which shall not be deemed satisfied until the expiration of such period,
but
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in the case of Covenant Defeasance, the covenants which are defeased under
Section 8.03 will cease to be in effect unless an Event of Default under
Section 6.01(e) or 6.01(f) occurs during such period);
(e) Such Legal Defeasance or Covenant Defeasance shall not result in
a breach or violation of or constitute a default under any other material
agreement or instrument to which the Company or any of its Subsidiaries is
a party or by which any of them is bound;
(f) In the case of an election under either Section 8.02 or 8.03,
the Company shall have delivered to the Trustee an Officers' Certificate
stating that the deposit made by the Company pursuant to its election
under Section 8.02 or 8.03 was not made by the Company with the intent of
preferring the Holders over any other creditors of the Company or with the
intent of defeating, hindering, delaying or defrauding creditors of the
Company or others; and
(g) The Company shall have delivered to the Trustee an Officers'
Certificate stating that all conditions precedent provided for or relating
to either the Legal Defeasance under Section 8.02 or the Covenant
Defeasance under Section 8.03 (as the case may be) have been complied with
as contemplated by this Section 8.04.
SECTION 8.05. Deposited U.S. Legal Tender Equivalents and U.S.
Government Obligations to Be Held in Trust; Other Miscellaneous Provisions.
Subject to Section 8.06, all cash, U.S. Legal Tender Equivalents and U.S.
Government Obligations (including the proceeds thereof) deposited with the
Trustee (or other qualifying trustee, collectively for purposes of this Section
8.05, the "Trustee") pursuant to Section 8.04 in respect of the outstanding
Securities shall be held in trust and applied by the Trustee, in accordance with
the provisions of such Securities and this Indenture, to the payment, either
directly or through any Paying Agent as the Trustee may determine, to the
Holders of such Securities of all sums due and to become due thereon in respect
of principal, premium, if any, and interest, but such money need not be
segregated from other funds except to the extent required by law.
SECTION 8.06. Repayment to the Company. Subject to any applicable
escheat or abandoned property laws, any money deposited with the Trustee or any
Paying Agent, or then held by the Company, in trust for the payment, of the
principal of, premium, if any, or interest on any Security and remaining
unclaimed for two years after such principal, and premium, if any, or interest
has become due and payable shall be paid to the Company on its request; and the
Holder of such Security shall thereafter look only to the Company for payment
thereof, and all liability of the Trustee or such Paying Agent with respect to
such trust money shall thereupon cease.
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SECTION 8.07. Reinstatement. If the Trustee or Paying Agent is
unable to apply any cash, U.S. Legal Tender Equivalents or U.S. Government
Obligations in accordance with Section 8.02 or 8.03, as the case may be, by
reason of any order or judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such application, then the
Company's obligations under this Indenture and the Securities shall be revived
and reinstated as though no deposit had occurred pursuant to Section 8.02 or
8.03 until such time as the Trustee or Paying Agent is permitted to apply such
money in accordance with Sections 8.02 and 8.03, as the case may be; provided,
however, that, if the Company makes any payment of principal of, premium, if
any, or interest on any Security following the reinstatement of its obligations,
the Company shall be subrogated to the rights of the Holders of such Securities
to receive such payment from the cash held by the Trustee or Paying Agent.
ARTICLE 9
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.01. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holder, the Company, when authorized by Board
Resolutions, and the Trustee, at any time and from time to time, may enter into
one or more indentures supplemental hereto, in form satisfactory to the Trustee,
for any of the following purposes:
(1) to cure any ambiguity, defect, or inconsistency, or to make any
other provisions with respect to matters or questions arising under this
Indenture which shall not be inconsistent with the provisions of this
Indenture, provided such action pursuant to this clause (1) shall not
adversely affect the interests of any Holder in any respect;
(2) to add to the covenants of the Company for the benefit of the
Holders, or to surrender any right or power conferred upon the Company
herein or to make any other change hereto or thereto that does not
adversely affect the rights of any Holder, provided that the Company has
delivered to the Trustee an Opinion of Counsel stating that such change
does not adversely affect the rights of any Holder;
(3) to provide for collateral or guarantors for the Securities;
(4) to evidence the succession of another Person to the Company, and
the assumption by any such successor of the obligations of the Company,
herein and in the Securities in accordance with Article 5; or
(5) to comply with the TIA.
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SECTION 9.02. Amendments, Supplemental Indentures and Waivers with
Consent of Holders. Subject to Section 6.08, with the consent of the Holders of
not less than a majority in aggregate principal amount of then outstanding
Securities, by written act of said Holders delivered to the Company and the
Trustee, the Company, when authorized by Board Resolutions, and the Trustee may
amend or supplement this Indenture or the Securities or 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
the Securities or of modifying in any manner the rights of the Holders under
this Indenture or the Securities. Subject to Section 6.08, the Holder or Holders
of not less than a majority in principal amount of then outstanding Securities
may waive compliance by the Company with any provision of this Indenture or the
Securities. Notwithstanding any of the above, however, no such amendment,
supplemental indenture or waiver shall, without the consent of each Holder
affected thereby:
(1) reduce the percentage of principal amount of Securities whose
Holders must consent to an amendment, supplement, supplemental indenture
or waiver of any provision of this Indenture or the Securities;
(2) reduce the rate or extend the time for payment of interest on
any Security or any premium payable upon the redemption thereof;
(3) reduce the principal amount of any Security, the Change of
Control Purchase Price, the Asset Sale Offer Price or the Redemption
Price;
(4) change the Stated Maturity of any Security;
(5) alter the redemption provisions of Article 3 or paragraph 5 of
the Securities or mandatory exchange provisions or the provisions
(including related definitions) of Article 11, in any case, in a manner
adverse to any Holder;
(6) make any changes in Section 6.08, 6.12 or this Section 9.02
except to increase any required percentage or to provide that certain
other provisions of this Indenture cannot be modified without the consent
of each Holder affected thereby;
(7) make the Principal of, or the interest on, any Security payable
with anything or in any manner other than as provided for in this
Indenture (including changing the place of payment where, or the coin or
currency in which, any Security or any premium or the interest thereon is
payable and the Securities as in effect on the date hereof); or
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(8) make the Securities subordinated in right of payment to any
extent or under any circumstances to any other indebtedness.
With the consent of Holders of 66 2/3% of the outstanding aggregate
principal amount of the Securities, the Company and the Trustee may change the
Change of Control Purchase Date or the Asset Sale Offer Period.
It shall not be necessary for the consent of the Holders under this
Section 9.02 to approve the particular form of any proposed amendment,
supplement or waiver, but it shall be sufficient if such consent approves the
substance thereof.
After an amendment, supplement or waiver under this Section 9.02
becomes effective, the Company shall mail to the Holders affected thereby a
notice briefly describing the amendment, supplement or waiver. 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 such supplemental indenture or
waiver.
After an amendment, supplement or waiver under this Section 9.02 or
Section 9.04 becomes effective, it shall bind each Holder.
In connection with any amendment, supplement or waiver under this
Article 9, the Company may, but shall not be obligated to, offer to any Holder
who consents to such amendment, supplement or waiver, or to all Holders,
consideration for such Holder's consent to such amendment, supplement or waiver.
SECTION 9.03. Compliance with TIA. Every amendment, waiver or
supplement of this Indenture or the Securities shall comply with the TIA as then
in effect.
SECTION 9.04. Revocation and Effect of Consents. Until an amendment,
waiver or supplement becomes effective, a consent to it by a Holder is a
continuing consent by the Holder and every subsequent Holder of a Security or
portion of a Security that evidences the same debt as the consenting Holder's
Security, even if notation of the consent is not made on any Security. However,
any such Holder or subsequent Holder may revoke the consent as to his Security
or portion of his Security by written notice to the Company or the Person
designated by the Company as the Person to whom consents should be sent if such
revocation is received by the Company or such Person before the date on which
the Trustee receives an Officers' Certificate certifying that the Holders of the
requisite principal amount of Securities have consented (and not theretofore
revoked such consent) to the amendment, supplement or waiver.
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The Company may, but shall not be obligated to, fix a record date
for the purpose of determining the Holders entitled to consent to any amendment,
supplement or waiver, which record date shall be the date so fixed by the
Company notwithstanding the provisions of the TIA. If a record date is fixed,
then notwithstanding the last sentence of the immediately preceding paragraph,
those Persons who were Holders at such record date, and only those Persons (or
their duly designated proxies), shall be entitled to revoke any consent
previously given, whether or not such Persons continue to be Holders after such
record date. No such consent shall be valid or effective for more than 90 days
after such record date.
After an amendment, supplement or waiver becomes effective, it shall
bind every Securityholder, unless it makes a change described in any of clauses
(1) through (8) of Section 9.02, in which case, the amendment, supplement or
waiver shall bind only each Holder of a Security who has consented to it and
every subsequent Holder of a Security or portion of a Security that evidences
the same debt as the consenting Holder's Security; provided that any such waiver
shall not impair or affect the right of any Holder to receive payment of
principal and premium of and interest on a Security, on or after the respective
dates set for such amounts to become due and payable expressed in such Security,
or to bring suit for the enforcement of any such payment on or after such
respective dates.
SECTION 9.05. Notation on or Exchange of Securities. If an
amendment, supplement or waiver changes the terms of a Security, the Trustee may
require the Holder of the Security to deliver it to the Trustee or require the
Holder to put an appropriate notation on the Security. The Trustee may place an
appropriate notation on the Security about the changed terms and return it to
the Holder. Alternatively, if the Company or the Trustee so determines, the
Company in exchange for the Security shall issue and the Trustee shall
authenticate a new Security that reflects the changed terms. Any failure to make
the appropriate notation or to issue a new Security shall not affect the
validity of such amendment, supplement or waiver.
SECTION 9.06. Trustee To Sign Amendments, Etc. The Trustee shall
execute any amendment, supplement or waiver authorized pursuant to this Article
9; provided that the Trustee may, but shall not be obligated to, execute any
such amendment, supplement or waiver which affects the Trustee's own rights,
duties or immunities under this Indenture. The Trustee shall be entitled to
receive, and shall be fully protected in relying upon, an Opinion of Counsel
stating that the execution of any amendment, supplement or waiver authorized
pursuant to this Article 9 is authorized or permitted by this Indenture.
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ARTICLE 10
EXCHANGE OF SECURITIES
SECTION 10.01. Mandatory Exchange. In the event the Trading Price
equals or exceeds 115% of the Exchange Price for ten out of 15 consecutive
Trading Days, each outstanding Security will be mandatorily exchanged on the
fifth Trading Day (the "Exchange Date") immediately succeeding such tenth
Trading Day (unless the Company shall have elected on or prior to the second
Trading Day immediately succeeding such tenth Trading Day to permanently
terminate the mandatory exchange provisions of the Securities) into [ ] PCC
Shares (subject to adjustment for certain events) per $1,000 principal amount of
Securities (initially equivalent to a price of $[ ] per share (the "Exchange
Price")).
SECTION 10.02. Exchange Procedures. Subject to Section 10.03, on and
after the Exchange Date, interest will cease to accrue on the Securities. Each
Holder will be obligated to surrender its Securities at the specified office of
the Exchange Agent and PCC will be obligated to issue the PCC Shares
exchangeable therefor (the "Exchange Shares"). Such exchange will be effected
through the facilities of DTC, with each Holder being deemed to have
automatically tendered its Securities for exchange on the Exchange Date in
accordance with applicable DTC procedures. Each Holder's automatic exchange will
be subject to the delivery of the Exchange Shares to the Paying Agent prior to
the Exchange Date.
SECTION 10.03. Compliance with Law. Exchange of the Securities into
the PCC Shares shall be subject to compliance with any reporting requirements or
approvals established by the Commission as the same may be amended, supplemented
or superseded from time to time. In the event that the mandatory exchange of
Securities into PCC Shares on the Exchange Date is prohibited by law, the
Company shall give notice thereof to the Trustee and the Paying Agent, and the
Securities shall remain outstanding and the exchange shall not occur until the
first Trading Day thereafter when both (i) such exchange is no longer prohibited
by applicable law and (ii) the Trading Price equaled or exceeded 115% of the
Exchange Price for ten out of the 15 consecutive Trading Days immediately
preceding such Trading Day (subject to the limitations set forth in Section
10.01).
SECTION 10.04. Adjustment of Exchange Price. The Exchange Price
shall be adjusted from time to time by the Company as follows:
(a) In case PCC shall (i) pay a dividend in PCC Shares to all
holders of any class of capital stock of PCC, (ii) make a distribution in
PCC Shares to all holders of any class of capital stock of PCC, (iii)
subdivide its outstanding PCC Shares into a
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greater number of shares, (iv) combine its outstanding PCC Shares into a smaller
number of shares or (v) reclassify its outstanding PCC Shares, the Exchange
Price in effect immediately prior thereto shall be adjusted so that the Holder
of any Security thereafter surrendered for exchange shall be entitled to receive
that number of PCC Shares which it would have owned had such Security been
exchanged immediately prior to the happening of such event. Any adjustment made
pursuant to this subsection (a) shall become effective immediately after the
record date in the case of a dividend in shares or distribution and shall become
effective immediately after the effective date in the case of subdivision or
combination.
(b) In case PCC shall issue to all holders of PCC Shares rights, options
or warrants or negotiable instruments, debentures or securities convertible into
PCC Shares or exchangeable therefor (collectively, "Discount Rights"), in each
case, entitling such holders (for a period commencing no earlier than the record
date described below and expiring not more than 60 days after such record date)
to subscribe for or purchase or exchange for PCC Shares at a price per share
less than the current market price per PCC Shares (as determined in accordance
with subsection (e) of this Section 10.04) at the record date for the
determination of shareholders entitled to receive such Discount Rights, the
Exchange Price in effect immediately prior thereto shall be adjusted so that the
same shall equal the price determined by multiplying the Exchange Price in
effect immediately prior to such record date by a fraction of which the
numerator shall be the number of PCC Shares outstanding on such record date,
plus the number of shares which the aggregate offering price of the total number
of PCC Shares so offered (or the aggregate Exchange Price of the convertible
securities so offered) would purchase at such current market price, and of which
the denominator shall be the number of PCC Shares outstanding on such record
date plus the number of additional PCC Shares offered (or into which the
exchangeable or convertible securities so offered are exchangeable or
convertible). Such adjustment shall be made successively whenever any Discount
Rights are issued, and shall become effective immediately after such record
date. If at the end of the period during which such Discount Rights are
exercisable not all Discount Rights shall have been exercised, the adjusted
Exchange Price shall be immediately readjusted to what it would have been based
upon the number of additional PCC Shares actually issued (or the number of PCC
Shares issuable upon exchange or conversion of exchangeable or convertible
securities actually issued).
(c) In case PCC shall distribute to all or substantially all holders of
PCC Shares any shares of capital stock of PCC (other than PCC Shares) or capital
stock of PCC's subsidiaries or evidences of indebtedness of the Company or
assets (including cash and securities but excluding those rights, dividends,
options, warrants and distri-
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butions referred to in (a) and (b) of this Section 10.04), Exchange Price shall
be adjusted so that the same shall equal the price determined by multiplying the
Exchange Price in effect immediately prior to the date of such distribution by a
fraction of which the numerator shall be the current market price per PCC Share
(as defined in subsection (d) of this Section 10.04) on the record date
mentioned below less the fair market value on such record date (as determined by
the Board of Directors, whose determination shall be conclusive evidence of such
fair market value) of the portion of the capital stock, evidences of
indebtedness or other assets so distributed or of such rights or warrants
applicable to one PCC Share (determined on the basis of the number of PCC Shares
outstanding on the record date), and of which the denominator shall be the
current market price per share (as defined in subsection (d) of this Section
10.04) of the PCC Shares on such record date. Such adjustment shall become
effective immediately after the record date for the determination of
shareholders entitled to receive such distribution.
In the event that PCC shall distribute rights, options or warrants (other
than those referred to in subsection (b) of this Section 10.04) ("Rights") pro
rata to holders of PCC Shares, so long as such Rights have not expired or been
redeemed, the Holder of any Security surrendered for exchange will be entitled
to receive upon exchange, in addition to the Exchange Shares, a number of Rights
to be determined as follows: (i) if such exchange occurs on or prior to the date
for the distribution to the holders of Rights of separate certificates
evidencing such Rights (the "Distribution Date"), the same number of Rights to
which a holder of a number of shares of PCC Shares equal to the number of
Exchange Shares is entitled at the time of such exchange in accordance with the
terms and provisions of and applicable to the Rights and (ii) if such exchange
occurs after the Distribution Date, the same number of Rights to which a holder
of the number of shares of PCC Shares into which such Security was exchangeable
immediately prior to the Distribution Date would have been entitled on the
Distribution Date in accordance with the terms and provisions of and applicable
to the Rights. The Exchange Price will not be subject to adjustments on account
of any declaration, distribution or exercise of such Rights.
(d) In case either of the following shall occur: (a) any consolidation or
merger to which PCC is a party other than a merger in which PCC is the
continuing corporation and which does not result in any reclassification of, or
change (other than a change in name, or in par value, or from par value to no
par value, or from no par value to par value, or as a result of a subdivision or
combination) in, outstanding PCC Shares; or (b) any spin-off or reorganization
of all or substantially all of the property and assets of PCC, then the Exchange
Price in effect immediately before such action shall be adjusted so that the
Holders, upon exchange of Securities immediately fol-
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lowing such event, shall be entitled to receive the kind and amount of property
they would have owned or been entitled to receive upon or by reason of such
event if the Securities had been exchanged immediately before such event. Such
adjustment shall become effective retroactively immediately after the effective
date of such consolidation, merger, reorganization or spin-off.
(e) For the purpose of any computation under subsections (b) and (c) of
this Section 10.04, the current market price per PCC Share on any date shall be
deemed to be the average of the daily closing prices for the 30 consecutive
Trading Days commencing 45 Trading Days before the record date with respect to
distributions, issuances or other events requiring such computation under
subsection (b) or (c) of this Section 10.04. The closing price for each day
shall be the last reported sales price or, in case no such reported sale takes
place on such date, the average of the reported closing bid and asked prices in
either case on the American Stock Exchange or such other nationally recognized
exchange or automated quotation system on which the PCC Shares are then traded
or, if not listed or admitted to trading on any national securities exchange,
the closing sales price of the PCC Shares as quoted by NASDAQ or, in case no
reported sale takes place, the average of the closing bid and asked prices as
quoted by NASDAQ or any comparable system or, if the PCC Shares are not quoted
on NASDAQ or any comparable system, the closing sales price or, in case no
reported sale takes place, the average of the closing bid and asked prices, as
furnished by any two members of the National Association of Securities Dealers,
Inc. selected from time to time by PCC for that purpose. If no such prices are
available, the current market price per share shall be the fair value of a PCC
Share as determined in good faith by the Board of Directors of PCC.
(f) In any case in which this Section 10.04 shall require that an
adjustment be made following a record date established for purposes of this
Section 10.04, the Company may elect to defer (but only until five Business Days
following the filing by the Company with the Trustee of the certificate
described in Section 10.07) issuing to the Holder of any Security exchanged
after such record date the PCC Shares issuable upon such exchange over and above
the PCC Shares issuable upon such exchange only on the basis of the Exchange
Price prior to adjustment; and, in lieu of the shares the issuance of which is
so deferred, the Company shall issue or cause its transfer agents to issue due
bills or other appropriate evidence prepared by the Company of the right to
receive such shares. If any distribution in respect of which an adjustment to
the Exchange Price is required to be made as of the record date or effective
date therefor is not thereafter made or paid by the Company for any reason, the
Exchange Price shall be readjusted to the Exchange Price which would then be in
effect if such record date had not been fixed or such effective date had not
occurred.
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SECTION 10.05. No Adjustment. No adjustment in the Exchange Price
shall be required until the cumulative adjustments amount to 1% or more of the
Exchange Price as last adjusted; provided, however, that any adjustments which
by reason of this Section 10.05 are not required to be made shall be carried
forward and taken into account in any subsequent adjustment. All calculations
under this Article 10 shall be made to the nearest cent or to the nearest
one-hundredth of a share, as the case may be.
No adjustment need be made for a transaction referred to in Section
10.04 if all Holders are entitled to participate in the transaction on a basis
and with notice that the Board of Directors of PCC determines to be fair and
appropriate in light of the basis and notice on which holders of PCC Shares
participate in the transaction. The Company shall give notice to the Trustee of
any such determination.
No adjustment need be made for rights to purchase PCC Shares or
issuances of PCC Shares pursuant to a plan for reinvestment of dividends or
interest.
To the extent that the Securities become convertible into the right
to receive cash, no adjustment need be made thereafter as to the cash. Interest
will not accrue on the cash.
SECTION 10.06. Adjustment for Tax Purposes. The Company shall be
entitled to make such reductions in the Exchange Price, in addition to those
required by Section 10.04, as it in its discretion it shall determine to be
advisable in order that any stock dividends, subdivisions of shares,
distributions of rights to purchase stock or securities or distributions of
securities convertible into or exchangeable for stock hereafter made by PCC to
its shareholders shall not be taxable.
SECTION 10.07. Notice of Adjustment. Whenever the Exchange Price is
adjusted, the Company shall promptly mail to the Holders a notice of the
adjustment and file with the Trustee an Officers' Certificate briefly stating
the facts requiring the adjustment and the manner of computing it.
SECTION 10.08. Notice of Certain Transactions. In the event that:
(1) the Company of PCC takes any action which would require an
adjustment in the Exchange Price;
(2) the Company of PCC consolidates or merges with, or transfers all
or substantially all of its property and assets to, another corporation
and shareholders of the Company or PCC, as the case may be, must approve
the transaction; or
(3) there is a dissolution or liquidation of the Company or PCC,
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the Company shall mail to the Holders and file with the Trustee a notice
stating the proposed record or effective date, as the case may be. The
Company shall mail the notice at least ten days before such date. Failure
to mail such notice or any defect therein shall not affect the validity of
any transaction referred to in clause (1), (2) or (3) of this Section
10.08.
SECTION 10.09. Trustee's Disclaimer. The Trustee shall have no duty
to determine when an adjustment under this Article 10 should be made, how it
should be made or what such adjustment should be, but may accept as conclusive
evidence of that fact or the correctness of any such adjustment, and shall be
protected in relying upon, an Officers' Certificate including the Officers'
Certificate with respect thereto which the Company is obligated to file with the
Trustee pursuant to Section 10.07. The Trustee makes no representation as to the
validity or value of any securities or assets issued upon conversion of
Securities, and the Trustee shall not be responsible for the Company's or PCC's
failure to comply with any provisions of this Article 10.
SECTION 10.10. Fractional Shares. PCC will not issue fractional PCC
Shares upon conversion of Securities. In lieu thereof, the Company will pay a
cash adjustment based upon the market price of the PCC Shares.
SECTION 10.11. Taxes on Exchange. The Company shall pay any
documentary, stamp or similar issue or transfer tax due on the issue of PCC
Shares upon such exchange. However, the Holder shall pay any such tax which is
due because the Holder requests the shares to be issued in a name other than the
Holder's name. The Exchange Agent may refuse to deliver the certificate
representing the Exchange Shares in a name other than the Holder's name until
the Exchange Agent receives a sum sufficient to pay any tax which will be due
because the Exchange Shares are to be issued in a name other than the Holder's
name. Nothing herein shall preclude any tax withholding required by law or
regulation.
SECTION 10.12. Satisfaction of Obligations under Securities. On
exchange of a Security, a Holder will not receive any cash payment representing
an accrued discount or premium payment. PCC's delivery to such Holder of the
Exchange Shares (or cash adjustment pursuant to Section 10.10) into which the
Security is exchangeable will be deemed to satisfy the Company's obligation to
pay the principal amount and any accrued discount or premium attributable to the
period from the Issue Date to the date of exchange.
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ARTICLE 11
RIGHT TO REQUIRE REPURCHASE
SECTION 11.01. Repurchase of Securities at Option of the Holder upon
a Change of Control. (a) In the event that a Change of Control occurs, each
Holder will have the right, at such Holder's option, to require the Company to
repurchase all or any part of such Holder's Securities (provided that the
principal amount of such securities at stated maturity must be $1,000 or an
integral multiple thereof) pursuant to an unconditional, irrevocable offer by
the Company (the "Change of Control Offer") on a date that is no later than 45
Business Days after the occurrence of such Change of Control (the "Change of
Control Purchase Date"), at a cash price (the "Change of Control Purchase
Price") equal to 101% of the principal amount thereof, plus accrued and unpaid
interest, if any, to and including the Change of Control Purchase Date.
(b) In the event that pursuant to this Section 11.01 the Company
shall be required to commence a Change of Control Offer, the Company shall
follow the procedures set forth in this Section 11.01 as follows:
(1) the Change of Control Offer shall commence within 20 Business
Days following the Change of Control date;
(2) the Change of Control Offer shall remain open for 20 Business
Days, except to the extent that a longer period is required by applicable
law (the "Change of Control Offer Period");
(3) upon the expiration of a Change of Control Offer Period, the
Company shall purchase all of the properly tendered and not properly
withdrawn Securities in response to the Change of Control Offer;
(4) the Company shall provide the Trustee with notice of the Change
of Control Offer at least five Business Days before the commencement of
any Change of Control Offer; and
(5) on or before the commencement of any Change of Control Offer,
the Company or the Trustee (upon the request and at the expense of the
Company) shall send, by first-class mail, a notice to each of the
Securityholders, which (to the extent consistent with this Indenture)
shall govern the terms of the Change of Control Offer and shall state:
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(i) that the Change of Control Offer is being made pursuant to
such notice and this Section 11.01 and that all Securities, or
portions thereof, tendered will be accepted for payment;
(ii) the Change of Control Purchase Price (including the
amount of accrued and unpaid interest), the Change of Control
Purchase Date and the Change of Control Put Date (as defined below);
(iii) that any Security, or portion thereof, not tendered or
accepted for payment will continue to accrue interest;
(iv) that, unless the Company defaults in depositing cash with
the Paying Agent in accordance with the last paragraph of this
clause (b) or such payment is prevented, any Security, or portion
thereof, accepted for payment pursuant to the Change of Control
Offer shall cease to accrue interest after the Change of Control
Purchase Date;
(v) that Holders electing to have a Security, or portion
thereof, purchased pursuant to a Change of Control Offer will be
required to surrender the Security, with the form entitled "Option
of Holder to Elect Purchase" on the reverse of the Security
completed, to the Paying Agent (which may not for purposes of this
Section 11.01, notwithstanding anything in this Indenture to the
contrary, be the Company or any Affiliate of the Company) at the
address specified in the notice prior to the close of business on
the earlier of (a) the third Business Day prior to the Change of
Control Purchase Date and (b) the third Business Day following the
expiration of the Change of Control Offer (such earlier date being
the "Change of Control Put Date");
(vi) that Holders will be entitled to withdraw their election,
in whole or in part, if the Paying Agent (which may not for purposes
of this Section 11.01, notwithstanding anything in this Indenture to
the contrary, be the Company or any Affiliate of the Company)
receives, up to the close of business on the Change of Control Put
Date, a telegram, telex, facsimile transmission or letter setting
forth the name of the Holder, the principal amount of the Securities
the Holder is withdrawing and a statement that such Holder is
withdrawing his election to have such principal amount of Securities
purchased; and
(vii) a brief description of the events resulting in such
Change of Control.
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Any such Change of Control Offer shall comply with all applicable
provisions of Federal and state securities laws, rules and regulations,
including those regulating tender offers, if applicable, and any provisions of
this Indenture which conflict with such laws shall be deemed to be superseded by
the provisions of such laws.
On or before the Change of Control Purchase Date, the Company will
(i) accept for payment Securities or portions thereof properly tendered and not
properly withdrawn pursuant to the Change of Control Offer, (ii) deposit with
the Paying Agent cash sufficient to pay the Change of Control Purchase Price
(including accrued and unpaid interest) for all Securities or portions thereof
so tendered and (iii) deliver to the Trustee Securities so accepted together
with an Officers' Certificate listing the Securities or portions thereof being
purchased by the Company. The Paying Agent will on the Change of Control
Purchase Date promptly deliver to Holders of Securities so accepted payment in
an amount equal to the Change of Control Purchase Price for such Securities,
together with any accrued but unpaid interest, and the Trustee shall promptly
authenticate and mail or deliver to such Holders a new Security equal in
principal amount to any unpurchased portion of the Security surrendered. Any
Securities not so accepted shall be promptly mailed or delivered by the Company
to the Holder thereof. The Company will announce publicly the results of the
Change of Control Offer on or as soon as practicable after the Change of Control
Purchase Date.
ARTICLE 12
MISCELLANEOUS
SECTION 12.01. TIA Controls. If any provision of this Indenture
limits, qualifies, or conflicts with the duties imposed by operation of the TIA,
the imposed duties, upon qualification of this Indenture under the TIA, shall
control.
SECTION 12.02. Notices. Any notices or other communications to the
Company, PCC or the Trustee required or permitted hereunder shall be in writing,
and shall be sufficiently given if made by hand delivery, by telex, by
telecopier or registered or certified mail, postage prepaid, return receipt
requested, addressed as follows:
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if to the Company:
Price Communications Cellular Holdings, Inc.
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Chief Financial Officer
Telecopy: (000) 000-0000
if to PCC:
Price Communications Corporation
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Chief Financial Officer
Telecopy: (000) 000-0000
if to the Trustee:
Bank of Montreal Trust Company
00 Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Department
Telecopy: (000) 000-0000
Any party by notice to each other party may designate additional or
different addresses as shall be furnished in writing by such party. Any notice
or communication to any party shall be deemed to have been given or made as of
the date so delivered, if personally delivered; when answered back, if telexed;
when receipt is acknowledged, if telecopied; and five Business Days after
mailing if sent by registered or certified mail, postage prepaid (except that a
notice of change of address shall not be deemed to have been given until
actually received by the addressee).
Any notice or communication mailed to a Holder shall be mailed to
him by first class mail or other equivalent means at his address as it appears
on the registration books of the Registrar and shall be sufficiently given to
him if so mailed within the time prescribed.
Failure to mail a notice or communication to a Securityholder or any
defect in it shall not affect its sufficiency with respect to other
Securityholders. If a notice or communication is mailed in the manner provided
above, it is duly given, whether or not the addressee receives it.
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SECTION 12.03. Communications by Holders with Other Holders. Holders
may communicate pursuant to TIA ss. 312(b) with other Holders with respect to
their rights under this Indenture or the Securities. The Company, PCC, the
Trustee, the Registrar and any other Person shall have the protection of TIA ss.
312(c).
SECTION 12.04. Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company or PCC to the Trustee to take any
action under this Indenture, such Person shall furnish to the Trustee:
(1) an Officers' Certificate (in form and substance reasonably
satisfactory to the Trustee) stating that, in the opinion of the signers,
all conditions precedent, if any, provided for in this Indenture relating
to the proposed action have been complied with; and
(2) an opinion of Counsel (in form and substance reasonably
Satisfactory to the Trustee) stating that, in the opinion of such counsel,
all such conditions precedent have been complied with.
SECTION 12.05. Statements Required in Certificate or Opinion. Each
certificate or opinion with respect to compliance with a condition or covenant
provided for in this Indenture shall include:
(1) a statement that the Person making such certificate or opinion
has read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of such Person, he has made
such examination or investigation as is 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 or not, in the opinion of each such
Person, such condition or covenant has been complied with; provided,
however, that with respect to matters of fact an Opinion of Counsel may
rely on an Officers' Certificate or certificates of public officials.
SECTION 12.06. Rules by Trustee, Paying Agent, Registrar. The
Trustee may make reasonable rules for action by or at a meeting of
Securityholders. The Paying Agent or Registrar may make reasonable rules for its
functions.
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SECTION 12.07. Legal Holidays. If a payment date is a Legal Holiday
at such place, payment may be made at such place on the next succeeding day that
is not a Legal Holiday, and no interest shall accrue for the intervening period.
SECTION 12.08. Governing Law. THIS INDENTURE AND THE SECURITIES
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK, AS APPLIED TO CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF NEW
YORK. THE COMPANY HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY NEW YORK
STATE COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK OR ANY
FEDERAL COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK IN
RESPECT OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
INDENTURE AND THE SECURITIES, AND IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT
OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, JURISDICTION OF THE AFORESAID
COURTS. THE COMPANY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT IT MAY EFFECTIVELY
DO SO UNDER APPLICABLE LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO
THE LAYING OF THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY
SUCH COURT AND ANY CLAIM THAT ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY
SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. NOTHING HEREIN SHALL
AFFECT THE RIGHT OF THE TRUSTEE OR ANY SECURITYHOLDER TO SERVE PROCESS IN ANY
OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE
PROCEED AGAINST THE COMPANY IN ANY OTHER JURISDICTION.
SECTION 12.09. No Adverse Interpretation of Other Agreements. This
Indenture may not be used to interpret another indenture, loan or debt agreement
of the Company or any of its respective Subsidiaries. Any such indenture, loan
or debt agreement may not be used to interpret this Indenture.
SECTION 12.10. No Recourse Against Others. No direct or indirect
stockholder, employee, director or officer, as such, past, present or future of
the Company or of PCC or any successor entity shall have any personal liability
in respect of the obligations of the Company or PCC under the Securities or this
Indenture by reason of his or its status as such stockholder, employee, director
or officer. Each Holder by accepting a Security waives and releases all such
liability. Such waiver an release are part of he consideration for the issuance
of the Securities.
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SECTION 12.11. Successors. All agreements of the Company and PCC in
this Indenture and the Securities shall their respective successors. All
agreements of the Trustee in this Indenture shall bind its successor.
SECTION 12.12. Duplicate Originals. All parties may sign any number
of copies or counterparts of this Indenture. Each signed copy or counterpart
shall be an original, but all of them together shall represent the same
agreement.
SECTION 12.13. Severability. In case any one or more of the
provisions in this Indenture or in the Securities shall be held invalid, illegal
or unenforceable, in any respect for any reason, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions shall not in any way be affected or impaired thereby, it being
intended that all of the provisions hereof shall be enforceable to the full
extent permitted by law.
SECTION 12.14. Table of Contents, Headings, Etc. The Table of
Contents, Cross-Reference Table and headings of the Articles and the Sections of
this Indenture have been inserted for convenience of reference only, are not to
be considered a part hereof and shall in no way modify or restrict any of the
terms or provisions hereof.
[Signature Pages Follow]
S-1
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed as of the date first written above.
PRICE COMMUNICATIONS CELLULAR HOLDINGS,
INC., a [New York] corporation
By:
------------------------------------
Name:
Title:
PRICE COMMUNICATIONS CORPORATION,
a [New York] corporation
By:
------------------------------------
Name:
Title:
S-2
BANK OF MONTREAL TRUST
COMPANY, as Trustee
By:
------------------------------------
Name:
Title:
EXHIBIT A
{FORM OF SECURITY}
[__]% SENIOR EXCHANGEABLE PAYABLE-IN-KIND NOTE
DUE 2008
No.
CUSIP No.
Price Communications Cellular Holdings, Inc., a [New York]
corporation (hereinafter called the "Company," which term includes any
successors under the Indenture hereinafter referred to), for value received,
hereby promises to pay to CEDE & CO., or registered assigns, the principal sum
of $_________ Dollars, on August 15, 2008.
Interest Payment Dates: February 15 and August 15 of each year;
commencing February 15, 1999.
Record Dates: February 1 and August 1 immediately preceding the
Interest Payment Date.
Reference is made to the further provisions of this Security on the
reverse side, which will, for all purposes, have the same effect as if set forth
at this place.
IN WITNESS WHEREOF, the Company has caused this Instrument to be
duly executed.
Dated:
PRICE COMMUNICATIONS CELLULAR
HOLDINGS, INC., a [New York] corporation
By: __________________________
Name:
Title:
PRICE COMMUNICATIONS CORPORATION,
a [New York] corporation
By: __________________________
Name:
Title:
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{FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION}
This is one of the Securities described in the within-mentioned
Indenture.
Bank of Montreal Trust Company,
as Trustee
By: __________________________
Authorized Signatory
Dated:
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PRICE COMMUNICATIONS CELLULAR HOLDINGS, INC.
[__]% Senior Exchangeable Payable-in-Kind Note due 2008
Unless and until it is exchanged in whole or in part for Securities
in definitive form, this Security may not be transferred except as a whole by
the Depository to a nominee of the Depository or by a nominee of the Depository
to the Depository or another nominee of the Depository or by the Depository or
any such nominee to a successor Depository or a nominee of such successor
Depository. Unless this certificate is presented by an authorized representative
of The Depository Trust Company, a New York corporation, ("DTC"), to the Company
or its agent for registration of transfer, exchange or payment, and any
certificate issued is registered in the name of Cede & Co. or in such other name
as is requested by an authorized representative of DTC (and any payment is made
to Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.(1)
1. Interest.
Price Communications Cellular Holdings, Inc., a [New York]
corporation (hereinafter called the "Company," which term includes any
successors under the Indenture hereinafter referred to), promises to pay
interest on the principal amount of this Security at the rate and in the manner
specified below. Interest will accrue at [ ]% per annum from [ ], 1998,
or from the most recent date to which interest has been paid or provided for,
and will be payable semi-annually on August 15 and February 15 of each year,
commencing February 15, 1999, or if any such day is not a Business Day on the
next succeeding Business Day (each an "Interest Payment Date") to Holders of
record of the Securities at the close of business on the immediately preceding
August 1 or February 1 (the "Record Date"), whether or not a Business Day. The
interest rate on the Securities will be permanently reduced by 0.50% once cash
interest begins to accrue on the Securities. Cash interest will begin to accrue
on the Securities on February 15, 2003; provided that at any time prior to
February 15, 2003, the Company may make an election on any Interest Payment Date
to commence the accrual of cash interest from and after such Interest Payment
Date, in which case, cash interest will be payable on each Interest Payment Date
thereafter. Prior to February 15, 2003, the Company
----------
(1) This paragraph should only be added if the Security is issued in global
form.
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shall notify the Trustee in writing of its election to pay interest on this
Security in cash not less than 10 nor more than 45 days prior to the Record Date
for the first Interest Payment Date on which cash interest will be paid.
Interest payable on any Interest Payment Date prior to the earlier of February
15, 2003 and the Company's election to commence the accrual of cash interest
shall be payable through the issuance of additional Securities (valued at 100%
of the principal amount thereof). Additional Securities shall be governed by,
and entitled to the benefits of, the Indenture and shall be subject to the terms
of the Indenture and shall be subject to the same terms (including the rate of
interest from time to time payable thereon) as this Security (except, as the
case may be, with respect to the issuance date and the aggregate principal
amount). Interest will be computed on the basis of a 360-day year consisting of
twelve 30-day months. Interest shall accrue from the most recent date to which
interest has been paid or, if no interest has been paid, from the date of
issuance. To the extent lawful, the Company shall pay interest on overdue
principal at the rate of the then applicable interest rate on the Securities; it
shall pay interest on overdue installments of interest (without regard to any
applicable grace periods) at the same rate to the extent lawful.
2. Method of Payment.
The Company shall pay interest on the Securities (except defaulted
interest) to the Persons who are the registered Holders at the close of business
on the Record Date immediately preceding the Interest Payment Date. Holders must
surrender Securities to a Paying Agent to collect principal payments. Except as
provided below, the Company shall pay principal and cash interest in such coin
or currency of the United States of America as at the time of payment shall be
legal tender for payment of public and private debts ("U.S. Legal Tender").
However, the Company may pay principal and cash interest by wire transfer of
Federal funds, or interest by its check payable in such U.S. Legal Tender. The
Company may deliver any such interest payment to the Paying Agent or the Company
may mail any such interest payment to a Holder at the Holder's registered
address.
3. Paying Agent and Registrar.
Initially, Bank of Montreal Trust Company (the "Trustee") will act
as Paying Agent and Registrar. The Company may change any Paying Agent,
Registrar or co-Registrar without notice to Holders. The Company or any of its
Subsidiaries may, subject to certain exceptions, act as Paying Agent, Registrar
or co-Registrar.
4. Indenture.
The Company issued the Securities under an Indenture, dated as of
[ ], 1998 (the "Indenture"), among the Company, PCC and the Trustee.
Capitalized terms herein are used as defined in the Indenture unless otherwise
defined herein. The terms of the Securi-
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ties include those stated in the Indenture and those made part of the Indenture
by reference to the TIA. The Securities are subject to all such terms, and
Holders of Securities are referred to the Indenture and the TIA for a statement
of them. The Securities are general obligations of the Company limited in
aggregate principal amount to $[ ].
5. Redemption.
Except as set forth below, the Company will not have the right to
redeem any Securities prior to August 15, 2003. On or after August 15, 2003, the
Company will have the right to redeem all or any part of the Securities in cash
at the redemption prices (expressed as a percentage of the aggregate principal
amount thereof) set forth below, in each case including accrued and unpaid
interest, if any, to the applicable Redemption Date (subject to the right of
Holders of record on the relevant regular Record Date to receive interest due on
an Interest Payment Date that is on or prior to the Redemption Date) if redeemed
during the 12-month period beginning August 15 of the years indicated below:
Year Redemption Price
---- ----------------
2003 [ ]%
2004 [ ]%
2005 [ ]%
2006 and thereafter 100.00000%
In the case of a partial redemption, the Trustee shall select the
Securities or portion thereof for redemption on a pro rata basis or in such
other manner as it deems appropriate and fair. The Securities may be redeemed in
part in multiples of $1,000 only.
Any such redemption will comply with Article 3 of the Indenture.
6. Notice of Redemption.
Notice of redemption will be sent by first class mail, at least 30
days and not more than 60 days prior to a Redemption Date, to the Holder of each
Security to be redeemed at such Holder's last address as then shown upon the
registry books of the Registrar.
Any notice which relates to a Security to be redeemed in part only
must state the portion of the principal amount to be redeemed and must state
that on and after the date fixed for redemption, upon surrender of such
Security, a new Security or Securities in a principal amount equal to the
unredeemed portion thereof will be issued. On and after the date
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fixed for redemption, interest will cease to accrue on the portions of the
Securities called for redemption.
7. Denominations; Transfer; Exchange.
The Securities are in registered form, without coupons, in
denominations of $1,000 and integral multiples of $1,000. A Holder may register
the transfer of, or exchange Securities in accordance with, the Indenture. The
Registrar may require a Holder, among other things, to furnish appropriate
endorsements and transfer documents and to pay any taxes and fees required by
law or permitted by the Indenture. The Registrar need not register the transfer
of or exchange any Securities selected for redemption prior to 15 days after the
notice of redemption.
8. Mandatory Exchange.
In the event the Trading Price equals or exceeds 115% of the
Exchange Price for 10 out of 15 consecutive Trading Days, this Security will be
mandatorily exchanged on the fifth Trading Day (the "Exchange Date") immediately
succeeding such tenth Trading Day (unless the Company shall have elected on or
prior to the second Trading Day immediately succeeding such tenth Trading Day to
permanently terminate the mandatory exchange provisions of this Security) into
PCC Shares (subject to adjustment for certain events) per $1,000 principal
amount of this Security (initially equivalent to a price of $ per share (the
"Exchange Price")).
Subject to the following paragraph, on and after the Exchange Date,
interest will cease to accrue on this Security. The Holder will be obligated to
surrender this Security at the specified office of the Exchange Agent and PCC
will be obligated to issue the Exchange Shares. Such exchange will be effected
through the facilities of DTC, with the Holder being deemed to have
automatically tendered this Security for exchange on the Exchange Date in
accordance with applicable DTC procedures. The automatic exchange will be
subject to the delivery of the Exchange Shares to the Paying Agent prior to the
Exchange Date.
In the event that PCC shall distribute rights, options or warrants
(other than Discount Rights) ("Rights") pro rata to holders of PCC Shares, so
long as any such Rights have not expired or been redeemed, the Holder of this
Security when it is surrendered for exchange will be entitled to receive upon
exchange, in addition to the Exchange Shares, a number of Rights to be
determined as follows: (i) if such exchange occurs on or prior to the date for
the distribution to the holders of Rights of separate certificates evidencing
such rights (the "Distribution Date"), the same number of Rights to which a
holder of a number of shares of PCC Shares equal to the number of Exchange
Shares is entitled at the time of such exchange in accordance with the terms and
provisions of and applicable to the Rights, and (ii) if such
A-6
exchange occurs after such Distribution Date, the same number of Rights to which
a holder of the number of shares of PCC Shares into which such Security was
exchangeable immediately prior to such Distribution Date would have been
entitled on such Distribution Date in accordance with the terms and provisions
of and applicable to the Rights. The Exchange Price will not be subject to
adjustments on account of any declaration, distribution or exercise of such
Rights.
On exchange of this Security, the Holder will not receive any cash
payment representing an accrued discount or premium payment. PCC's delivery to
the Holder of the Exchange Shares (or cash adjustment, as described below) into
which this Security is exchangeable will be deemed to satisfy the Company's
obligation to pay the principal amount and any accrued discount or premium
attributable to the period from the Issue Date to the date of exchange.
Fractional PCC Shares are not to be issued upon exchange, but, in
lieu thereof, PCC will pay a cash adjustment based upon the market price of the
PCC Shares.
9. Persons Deemed Owners.
The registered Holder of a Security may be treated as the owner of
it for all purposes.
10. Unclaimed Money.
If money for the payment of principal or interest remains unclaimed
for two years, the Trustee and the Paying Agent(s) will pay the money back to
the Company at its written request. After that, all liability of the Trustee and
such Paying Agent(s) with respect to such money shall cease.
11. Discharge Prior to Redemption or Maturity.
Except as set forth in the Indenture, if the Company irrevocably
deposits with the Trustee, in trust, for the benefit of the Holders, cash, U.S.
Legal Tender Equivalents, U.S. Government Obligations or a combination thereof,
in such amounts as will be sufficient in the opinion of a nationally recognized
firm of independent public accountants selected by the Trustee, to pay the
principal of, premium, if any, and interest on the Securities to redemption or
maturity and comply with the other provisions of the Indenture relating thereto,
the Company will be discharged from certain provisions of the Indenture and the
Securities (including the financial covenants, but excluding their obligation to
pay the principal of and interest on the Securities). Upon satisfaction of
certain additional conditions set forth in the Indenture,
A-7
the Company may elect to have its obligations discharged with respect to
outstanding Securities.
12. Amendment; Supplement; Waiver.
Subject to certain exceptions, the Indenture or the Securities may
be amended or supplemented with the written consent of the Holders of at least a
majority in aggregate principal amount of the Securities then outstanding, and
any existing Default or Event of Default or compliance with any provision may be
waived with the consent of the Holders of a majority in aggregate principal
amount of the Securities then outstanding. Without notice to or consent of any
Holder, the parties thereto may amend or supplement the Indenture or the
Securities to, among other things, cure any ambiguity, defect or inconsistency,
or make any other change that does not adversely affect the rights of any Holder
of a Security.
13. Restrictive Covenants.
The Indenture imposes certain limitations on the ability of the
Company and its Restricted Subsidiaries to, among other things, incur additional
Indebtedness, pay dividends or make certain other restricted payments, enter
into certain transactions with Affiliates, incur Liens, sell assets, merge or
consolidate with any other Person or transfer (by lease, assignment or
otherwise) substantially all of the properties and assets of the Company. The
limitations are subject to a number of important qualifications and exceptions.
The Company must periodically report to the Trustee on compliance with such
limitations.
14. Ranking.
Payment of principal, premium, if any, and interest on the
Securities is (i) senior in the right of payment to all subordinated
Indebtedness of the Company and (ii) pari passu in right of payment to all other
existing and future senior unsecured Indebtedness of the Company.
15. Repurchase at Option of Holder.
(a) If there is a Change of Control, the Company shall be required
to offer to purchase on the Change of Control Payment Date all outstanding
Securities at a purchase price equal to 101% of the principal amount thereof,
plus accrued and unpaid interest, if any, to the Change of Control Payment Date.
Holders of Securities will receive a Change of Control Offer from the Company
prior to any related Change of Control Payment Date and may elect to have such
Securities purchased by completing the form entitled "Option of Holder to Elect
Purchase" appearing below.
A-8
(b) The Indenture imposes certain limitations on the ability of the
Company and its Restricted Subsidiaries to sell assets. In the event the
proceeds from a permitted Asset Sale exceed certain amounts, as specified in the
Indenture, the Company will be required either to reinvest the proceeds of such
Asset Sale as described in the Indenture or to make an offer to purchase each
Holder's Securities at 100% of the principal amount thereof, plus accrued
interest, if any, to the purchase date.
16. Successors.
When a successor assumes all the obligations of its predecessor
under the Securities and the Indenture, the predecessor will be released from
those obligations.
17. Defaults and Remedies.
If an Event of Default occurs and is continuing (other than as Event
of Default relating to certain events of bankruptcy, insolvency or
reorganization), then in every such case, unless the principal of all of the
Securities shall have already become due and payable, either the Trustee or the
Holders of 25% in aggregate principal amount of Securities then outstanding may
declare all the Securities to be due and payable immediately in the manner and
with the effect provided in the Indenture. The Holders of Securities may not
enforce the Indenture or the Securities except as provided in the Indenture. The
Trustee may require indemnity satisfactory to it before it enforces the
Indenture or the Securities. Subject to certain limitations, Holders of a
majority in aggregate principal amount of the Securities then outstanding may
direct the Trustee in its exercise of any trust or power. The Trustee may
withhold from Holders of Securities notice of any continuing Default or Event of
Default (except a Default in payment of principal or interest), if it determines
that withholding notice is in their interest.
18. Trustee Dealings with Company.
The Trustee under the Indenture, in its individual or any other
capacity, may make loans to, accept deposits from, and perform services for the
Company or its Affiliates, and may otherwise deal with the Company or its
Affiliates as if it were not the Trustee.
19. No Recourse Against Others.
No direct or indirect stockholder, employee, director, or officer,
as such, past, present or future, of the Company or any successor corporation
shall have any personal liability in respect of the obligations of the Company
under the securities or the Indenture by reason of his or its status as such
stockholder, employee, director, or officer. The Holder of this
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Security by accepting this Security waives and releases all such liability. The
waiver and release are part of the consideration for the issuance of this
Security.
20. Authentication.
This Security shall not be valid until the Trustee or authenticating
agent signs the certificate of authentication on the other side of this
Security.
21. Abbreviations and Defined Terms.
Customary abbreviations may be used in the name of a Holder of a
Security or an assignee, such as: TEN COM (= tenants in common), TEN ENT (=
tenants by the entireties), JT TEN (= joint tenants with right of survivorship
and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts
to Minors Act).
Capitalized terms used in this Security but not defined herein have
the meanings ascribed to such terms in the Indenture.
22. CUSIP Numbers.
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Company will cause CUSIP numbers to be
printed on the Securities as a convenience to the Holders of the Securities. No
representation is made as to the accuracy of such numbers as printed on the
Securities and reliance may be placed only on the other identification numbers
printed hereon.
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{FORM OF} ASSIGNMENT
I or we assign this Security to
________________________________________________________________________________
________________________________________________________________________________
(Print or type name, address and zip code of assignee)
Please insert Social Security or other identifying number of assignee
________________________________________________________________________________
and irrevocably appoint _________ agent to transfer this Security on the books
of the Company. The agent may substitute another to act for him.
Date: _______________ Signed:_______________________________
________________________________________________________________________________
(Sign exactly as name appears on the other side of this Security)
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OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the Company
pursuant to Section 4.15 or Article 11 of the Indenture, check the appropriate
box:
{_} Section 4.15 {_} Article 11
If you want to elect to have only part of this Security purchased by
the Company pursuant to Section 4.15 or Article 11 of the Indenture, as the case
may be, state the principal amount you want to be purchased: $_____________
Date:_________________ Signature:___________________________________
(Sign exactly as your name appears
on the other side of this security)
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SCHEDULE OF EXCHANGES OF DEFINITIVE SECURITIES(2)
The following exchanges of a part of this Global Security for
Definitive Securities have been made:
Amount of Amount of
decrease in increase in Principal Amount
Principal Principal of this Global Secu- Signature of
Amount of Amount of rity following such authorized officer of
Date of Ex- this Global this Global decrease (or in- Trustee or Securities
change Security Security crease) Custodian
-------------------------------------------------------------------------------------
----------
(2) This schedule should only be added if the Security is issued in global
form.
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