Exhibit T3C
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ARCH WIRELESS HOLDINGS, INC.,
as Issuer
10% SENIOR SUBORDINATED SECURED NOTES DUE 2007
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INDENTURE
Dated as of [ ], 2002
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[ ],
as Trustee
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TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION.......................... 1
SECTION 1.01. Definitions................................................................. 1
SECTION 1.02. Other Definitions........................................................... 13
SECTION 1.03. Incorporation by Reference of the Trust Indenture Act....................... 14
SECTION 1.04. Form of Documents Delivered to Trustee...................................... 14
SECTION 1.05. Acts of Holders; Record Dates............................................... 15
SECTION 1.06. Benefits of Indenture....................................................... 15
SECTION 1.07. Legal Holidays.............................................................. 16
ARTICLE II THE NOTES........................................................................ 16
SECTION 2.01. Title and Terms............................................................. 16
SECTION 2.02. Form and Dating............................................................. 16
SECTION 2.03. Execution and Authentication................................................ 17
SECTION 2.04. Registrar, Paying Agent and Depositary...................................... 17
SECTION 2.05. Paying Agent to Hold Money in Trust......................................... 18
SECTION 2.06. Holder Lists................................................................ 18
SECTION 2.07. Transfer and Exchange....................................................... 18
SECTION 2.08. Legends..................................................................... 20
SECTION 2.09. Temporary Notes............................................................. 21
SECTION 2.10. Mutilated, Destroyed, Lost and Stolen Notes................................. 21
SECTION 2.11. Payment of Interest; Interest Rights Preserved.............................. 22
SECTION 2.12. Persons Deemed Owners....................................................... 22
SECTION 2.13. Cancellation................................................................ 22
SECTION 2.14. CUSIP Numbers............................................................... 23
ARTICLE III SATISFACTION AND DISCHARGE....................................................... 23
SECTION 3.01. Satisfaction and Discharge of Indenture..................................... 23
SECTION 3.02. Application of Trust Money.................................................. 24
ARTICLE IV REMEDIES......................................................................... 24
SECTION 4.01. Events of Default........................................................... 24
SECTION 4.02. Acceleration of Maturity; Exercise of Remedies.............................. 25
SECTION 4.03. Waiver of Past Defaults..................................................... 26
SECTION 4.04. Collection of Indebtedness and Suits for Enforcement by Trustee............. 26
SECTION 4.05. Trustee May File Proofs of Claim............................................ 26
SECTION 4.06. Application of Money Collected.............................................. 27
SECTION 4.07. Limitation on Suits......................................................... 27
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TABLE OF CONTENTS
(CONTINUED)
PAGE
SECTION 4.08. Unconditional Right of Holders to Receive Principal, Premium and Interest... 28
SECTION 4.09. Restoration of Rights and Remedies.......................................... 28
SECTION 4.10. Rights and Remedies Cumulative.............................................. 28
SECTION 4.11. Delay or Omission Not Waiver................................................ 28
SECTION 4.12. Control by Majority Noteholders............................................. 28
SECTION 4.13. Undertaking for Costs....................................................... 28
SECTION 4.14. Waiver of Stay or Extension Laws............................................ 29
ARTICLE V THE TRUSTEE...................................................................... 29
SECTION 5.01. Certain Duties and Responsibilities......................................... 29
SECTION 5.02. Notice of Defaults.......................................................... 29
SECTION 5.03. Certain Rights of Trustee................................................... 29
SECTION 5.04. Not Responsible for Recitals or Issuance of Notes........................... 30
SECTION 5.05. May Hold Notes.............................................................. 30
SECTION 5.06. Money Held in Trust......................................................... 31
SECTION 5.07. Compensation and Reimbursement.............................................. 31
SECTION 5.08. Disqualification; Conflicting Interests..................................... 31
SECTION 5.09. Corporate Trustee Required; Eligibility..................................... 32
SECTION 5.10. Resignation and Removal; Appointment of Successor........................... 32
SECTION 5.11. Acceptance of Appointment by Successor...................................... 33
SECTION 5.12. Merger, Conversion, Consolidation or Succession to Business................. 33
SECTION 5.13. Preferential Collection of Claims Against Company........................... 33
SECTION 5.14. Appointment of Co-Trustee................................................... 33
ARTICLE VI HOLDERS' LISTS AND REPORTS BY TRUSTEE............................................ 34
SECTION 6.01. Company to Furnish Trustee Names and Addresses of Holders................... 34
SECTION 6.02. Preservation of Information; Communications to Holders...................... 34
SECTION 6.03. Reports by Trustee.......................................................... 34
ARTICLE VII CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE............................. 35
SECTION 7.01. Consolidation, Etc., Only on Certain Terms.................................. 35
SECTION 7.02. Successor Substituted....................................................... 35
ARTICLE VIII SUPPLEMENTAL INDENTURES.......................................................... 36
SECTION 8.01. Supplemental Indentures Without Consent of Holders.......................... 36
SECTION 8.02. Supplemental Indentures with Consent of Holders and Majority Noteholders.... 36
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TABLE OF CONTENTS
(CONTINUED)
PAGE
SECTION 8.03. Execution of Supplemental Indentures........................................ 37
SECTION 8.04. Effect of Supplemental Indentures........................................... 37
SECTION 8.05. Conformity with Trust Indenture Act......................................... 38
SECTION 8.06. Reference in Notes to Supplemental Indentures............................... 38
ARTICLE IX REDEMPTION OF NOTES.............................................................. 38
SECTION 9.01. Optional Redemption......................................................... 38
SECTION 9.02. Mandatory Redemption; Mandatory Prepayment; Use of Average Excess Cash...... 38
SECTION 9.03. Applicability of Article.................................................... 38
SECTION 9.04. Election to Redeem; Notice to Trustee....................................... 38
SECTION 9.05. Selection by Trustee of Notes to Be Redeemed................................ 39
SECTION 9.06. Notice of Redemption........................................................ 39
SECTION 9.07. Deposit of Redemption Price................................................. 40
SECTION 9.08. Notes Payable on Redemption Date............................................ 40
SECTION 9.09. Notes Redeemed in Part...................................................... 40
ARTICLE X COVENANTS........................................................................ 40
SECTION 10.01. Payment of Principal, Premium and Interest.................................. 40
SECTION 10.02. Maintenance of Office or Agency............................................. 40
SECTION 10.03. Money for Note Payments to be Held in Trust................................. 41
SECTION 10.04. Existence; Conduct of Business.............................................. 42
SECTION 10.05. Payment and Performance of Obligations...................................... 42
SECTION 10.06. Additional Domestic Subsidiaries; Material Foreign Subsidiaries............. 42
SECTION 10.07. Indebtedness................................................................ 42
SECTION 10.08. Liens....................................................................... 43
SECTION 10.09. Fundamental Changes......................................................... 43
SECTION 10.10. Investments................................................................. 43
SECTION 10.11. Asset Sales................................................................. 44
SECTION 10.12. Restricted Payments......................................................... 44
SECTION 10.13. Prepayments of Indebtedness................................................. 44
SECTION 10.14. Transactions with Affiliates................................................ 45
SECTION 10.15. Repurchase Upon a Change of Control......................................... 45
SECTION 10.16. Dividend and Other Payment Restrictions Affecting Subsidiaries.............. 46
SECTION 10.17. Compliance with Laws; Etc................................................... 47
SECTION 10.18. Maintenance of Insurance.................................................... 47
SECTION 10.19. Change in Nature of Business................................................ 47
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TABLE OF CONTENTS
(CONTINUED)
PAGE
SECTION 10.20. Accounting Changes; Fiscal Year............................................. 47
SECTION 10.21. Minimum EBITDA.............................................................. 47
SECTION 10.22. Minimum Direct Customer Units in Service.................................... 48
SECTION 10.23. Minimum Total Consolidated Revenues......................................... 49
SECTION 10.24. Non-Device Capital Expenditures............................................. 50
SECTION 10.25. Device Capital Expenditures................................................. 51
SECTION 10.26. Provision of Financial Statements........................................... 52
SECTION 10.27. Statement by Officers as to Default; Notice of Default...................... 52
ARTICLE XI COLLATERAL....................................................................... 53
SECTION 11.01. Collateral.................................................................. 53
SECTION 11.02. Recording and Opinions...................................................... 53
SECTION 11.03. Possession and Use of Collateral............................................ 54
SECTION 11.04. Release and Disposition of Collateral....................................... 54
SECTION 11.05. Disposition of Collateral Without Release................................... 54
ARTICLE XII GUARANTEES....................................................................... 55
SECTION 12.01. Guarantees.................................................................. 55
SECTION 12.02. Subordination of Guarantee.................................................. 56
SECTION 12.03. Limitation on Guarantor Liability........................................... 56
SECTION 12.04. Execution and Delivery of Guarantee......................................... 57
SECTION 12.05. Guarantors May Consolidate, etc., on Certain Terms.......................... 57
SECTION 12.06. Releases Following Sale of Assets........................................... 57
ARTICLE XIII SUBORDINATION.................................................................... 58
SECTION 13.01. Agreement to Subordinate.................................................... 58
SECTION 13.02. Liquidation, Dissolution or Bankruptcy...................................... 58
SECTION 13.03. Default on Senior Debt...................................................... 59
SECTION 13.04. Rights and Obligations of the Trustee and the Holders....................... 59
SECTION 13.05. Subrogation................................................................. 60
SECTION 13.06. Obligations of Company Unconditional........................................ 60
SECTION 13.07. Notice by the Company....................................................... 60
SECTION 13.08. Right as Holder of Senior Debt.............................................. 60
SECTION 13.09. Reinstatement............................................................... 61
SECTION 13.10. Rights of Trustee and Paying Agent.......................................... 61
SECTION 13.11. Trust Moneys Not Subordinated............................................... 61
SECTION 13.12. Trustee To Effectuate Subordination......................................... 61
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(CONTINUED)
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SECTION 13.13. Trustee Not Fiduciary for Holders of Senior Debt............................ 61
SECTION 13.14. Reliance by Holders of Senior Debt on Subordination Provisions.............. 61
ARTICLE XIV MISCELLANEOUS.................................................................... 62
SECTION 14.01. Trust Indenture Act Controls................................................ 62
SECTION 14.02. Notices..................................................................... 62
SECTION 14.03. Communication by Holders of Notes with Other Holders of Notes............... 63
SECTION 14.04. Certificate and Opinion as to Conditions Precedent.......................... 63
SECTION 14.05. Statements Required in Certificate or Opinion............................... 63
SECTION 14.06. Rules by Trustee and Agents................................................. 63
SECTION 14.07. No Personal Liability of Directors, Officers, Employees and Stockholders.... 64
SECTION 14.08. Governing Law............................................................... 64
SECTION 14.09. No Adverse Interpretation of Other Agreements............................... 64
SECTION 14.10. Successors.................................................................. 64
SECTION 14.11. Severability................................................................ 64
SECTION 14.12. Counterpart Originals....................................................... 64
SECTION 14.13. Table of Contents, Headings, etc............................................ 64
EXHIBITS
EXHIBIT A - Form of Note
EXHIBIT B - Form of Notation of Guarantee
EXHIBIT C - Form of Collateral Agent Agreement
EXHIBIT D - Form of Security Agreement
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Sections 310 through 318 of the
Trust Indenture Act of 1939:
Trust Indenture Indenture
Act Section Section
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Section 310(a)(1) 6.09
(a)(2) 6.09
(a)(3) 6.14
(a)(4) Not Applicable
(a)(5) 6.09
(b) 6.08, 6.10
(c) Not applicable
Section 311(a) 6.13
(b) 6.13
(c) Not applicable
Section 312(a) 7.01, 7.02(a)
(b) 7.02(b)
(c) 7.02(c)
Section 313(a) 7.03(a)
(b) 703(a)
(c) 7.03(a)
(d) 7.03(b)
Section 314(a) 10.34, 10.35(a)
(b) 1.02
(c)(1) 1.02
(c)(2) 1.02
(c)(3) 1.02
(d) 1.02
(e) 1.02
Section 315(a) 6.01
(b) 6.02
(c) 6.01
(d) 6.01
(e) 5.14
Section 316
(a)(1)(A) 5.02, 5.12
(a)(1)(B) 5.02, 5.13
(a)(2) Not applicable
(b) 5.08
(c) 1.04(c)
Section 317(a)(1) 5.03
(a)(2) 5.04
(b) 10.03
Section 318(a) 1.07
Note: This cross reference table shall not, for any purpose, be deemed to be
a part of this Indenture.
vi
INDENTURE, dated as of __________, 2002, by and among Arch
Wireless Holdings, Inc., a Delaware corporation (the "COMPANY"), Arch Wireless
Communications, Inc., a Delaware corporation ("ARCH"), Arch Wireless, Inc., a
Delaware corporation (the "PARENT"), and the direct and indirect subsidiaries of
the Parent listed on Schedule I hereto (such subsidiaries, the "SUBSIDIARY
GUARANTORS," and together with Arch and the Parent, herein the "GUARANTORS") and
[ ], as Trustee (the "TRUSTEE").
RECITALS
WHEREAS, on November 9, 2001, three creditors filed an
involuntary petition against Arch under Chapter 11 of Title 11 of the United
States Code (the "BANKRUPTCY CODE");
WHEREAS, on December 6, 2001, Arch consented to entry of an
order for relief and the Company and the other Guarantors each filed a voluntary
petition for relief under Chapter 11 of the Bankruptcy Code with the United
States Bankruptcy Court for the District of Massachusetts (the "BANKRUPTCY
COURT");
WHEREAS, the Company and the Guarantors filed Debtors' First
Amended Joint Plan of Reorganization which was approved by the Bankruptcy Court
on [ ], 2002 (as amended, the "PLAN");
WHEREAS, pursuant to the Plan, the Company is required to
issue the Notes (as defined herein), to certain holders of indebtedness of the
Company and certain of the Guarantors outstanding on the date the Plan was
approved by the Bankruptcy Court;
WHEREAS, the Company has duly authorized the creation of an
issue of its 10% Senior Subordinated Secured Notes due 2007 (the "NOTES") of
substantially the tenor and amount hereinafter set forth, and to provide
therefor the Company has duly authorized the execution and delivery of this
Indenture;
WHEREAS, all things necessary to make the Notes, when executed
by the Company and authenticated and delivered hereunder and duly issued by the
Company, the valid obligations of the Company, and to make this Indenture a
valid agreement of the Company, in accordance with their and its terms, have
been done;
WHEREAS, the Guarantors have duly authorized the guarantee of
the Notes, and to provide therefor, the Guarantors have duly authorized the
execution and delivery of this Indenture; and
WHEREAS, all things necessary to make the Guarantees, when
executed by the Guarantors and when the Notes have been authenticated and
delivered hereunder and duly issued by the Company, the valid obligations of the
Guarantors, and to make this Indenture a valid agreement of the Guarantors, in
accordance with their and its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the acquisition
of the Notes by the Holders thereof, it is mutually agreed, for the equal and
proportionate benefit of all Holders of the Notes, as follows:
ARTICLE I
DEFINITIONS AND OTHER
PROVISIONS OF GENERAL APPLICATION
SECTION 1.01. DEFINITIONS.
For all purposes of this Indenture, except as otherwise
expressly provided or unless the context otherwise requires:
(1) The definitions of terms herein shall apply equally
to the singular and plural forms of the terms defined. Whenever the context may
require, any pronoun shall include the corresponding masculine, feminine and
neuter forms. The words "include," "includes" and "including" shall be deemed to
be followed by the phrase "without limitation." The word "will" shall be
construed to have the same meaning and effect as the word "shall." Unless the
context requires otherwise, (i) any definition of or reference to any agreement,
instrument or other document herein shall be construed as referring to such
agreement, instrument or other document as from time to time amended,
supplemented or otherwise modified, (ii) any definition of or reference to any
law shall be construed as referring to such law as from time to time amended and
any successor thereto and the rules and regulations promulgated from time to
time thereunder, (iii) any reference herein to any Person shall be construed to
include such Person's successors and assigns, (iv) the words "herein," "hereof"
and "hereunder," and words of similar import, shall be construed to refer to
this Indenture in its entirety and not to any particular provision hereof, (v)
all references herein to Articles, Sections, Exhibits and Schedules shall be
construed to refer to Articles and Sections of, and Exhibits and Schedules to,
this Indenture, and (vi) the words "asset" and "property" shall be construed to
have the same meaning and effect and to refer to any and all tangible and
intangible assets and properties, including cash, securities, accounts and
contract rights.
(2) Except as otherwise expressly provided herein, all
terms of an accounting or financial nature shall be construed in accordance with
GAAP; provided that if the Company notifies the Trustee that the Company
requests an amendment to any provision hereof to eliminate the effect of any
change occurring after the date of this Indenture in GAAP or in the application
thereof on the operation of such provision, regardless of whether any such
notice is given before or after such change in GAAP or in the application
thereof, then such provision shall be interpreted on the basis of GAAP as in
effect and applied immediately before such change shall have become effective
until such notice shall have been withdrawn or such provision amended in
accordance herewith. Unless the context otherwise requires, any reference to a
fiscal period shall refer to the relevant fiscal period of the Company.
"ACCOUNT DEBTOR" has the meaning specified in Article 9 of the
UCC.
"ADMINISTRATIVE AGENT" means the named administrative agent,
in its capacity as administrative agent under any Credit Agreement, or any
successor thereto.
"AFFILIATE" means, with respect to a specified Person, another
Person that directly, or indirectly through one or more intermediaries, Controls
or is Controlled by or is under common Control with the Person specified.
"AGENT" means any Registrar, co-registrar, Paying Agent or
additional paying agent.
"APPLICABLE PROCEDURES" means, with respect to any transfer,
redemption or exchange of or for beneficial interests in any Global Note, the
rules and procedures of the Depositary that apply to such transfer, redemption
or exchange.
"ARCH" means Arch Wireless Communications, Inc., a Delaware
corporation.
"AVERAGE EXCESS CASH," from the date hereof until [ ], 2004,
means the amount by which the aggregate average daily collected balances of the
Note Parties' bank and financial accounts for any fiscal month exceeds
$45,000,000 in cash and Cash Equivalents (less the available amount (i.e., the
borrowing base amount, whether or not used) of any Credit Agreement as of the
date of calculation). From and after [ ], 2004, "Average Excess Cash" will mean
the amount by which the aggregate average daily collected balances of the Note
Parties' bank and financial accounts for any fiscal month exceeds $35,000,000 in
cash and Cash Equivalents (less the available amount (i.e., the borrowing base
amount, whether or not used) of any Credit Agreement as of the date of
calculation).
2
"BANKRUPTCY CODE" has the meaning set forth in the recitals to
this Indenture.
"BANKRUPTCY COURT" has the meaning set forth in the recitals
to this Indenture.
"BOARD OF DIRECTORS" means: (1) with respect to a corporation,
the board of directors of the corporation; (2) with respect to a partnership,
the Board of Directors of the general partner of the partnership; and (3) with
respect to any other Person, the board or committee of such Person serving a
similar function.
"BOARD RESOLUTION" of a Person means a copy of a resolution
certified by the Secretary or a duly authorized Assistant Secretary of such
Person to have been duly adopted by the Board of Directors and to be in full
force and effect on the date of such certification, and delivered to the
Trustee.
"BUSINESS DAY" means (i) any day excluding Saturday, Sunday
and any day which is a legal holiday under the laws of the State of New York or
is a day on which banking institutions located in such state are required or
authorized by law or other governmental action to close, and (ii) a day of the
year on which the Collateral Agent is not required or authorized to close.
"CAPITAL EXPENDITURES" means, with respect to any Person for
any period, the aggregate of amounts that would be reflected as additions to
property, plant or equipment on a consolidated balance sheet of such Person and
its subsidiaries prepared in conformity with GAAP, excluding interest
capitalized during construction.
"CAPITAL LEASE" means, with respect to any Person, any lease
of property by such Person as lessee which would be accounted for as a capital
lease on a balance sheet of such Person prepared in conformity with GAAP.
"CASH EQUIVALENTS" means (a) securities issued or fully
guaranteed or insured by the United States government or any agency thereof; (b)
certificates of deposit, eurodollar time deposits, overnight bank deposits and
bankers' acceptances of any commercial bank organized under the laws of the
United States, any state thereof, the District of Columbia, any foreign bank, or
its branches or agencies (fully protected against currency fluctuations) which,
at the time of acquisition, are rated at least "A-1" by Standard & Poor's Rating
Services ("S&P") or "P-1" by Xxxxx'x Investors Services, Inc. ("MOODY'S"); (c)
commercial paper of an issuer rated at least "A-1" by S&P or "P-1" by Moody's;
and (d) shares of any money market fund that (i) has at least 95% of its assets
invested continuously in the types of investments referred to in clauses (a)
through (c) above, (ii) has net assets of not less than $500,000,000; and (iii)
is rated at least "A-1" by S&P or "P-1" by Moody's; provided, however, that the
maturities of all obligations of the type specified in clauses (a) through (c)
above shall not exceed 180 days.
"CHANGE IN CONTROL" means the occurrence at any time after the
date hereof of any of the following circumstances:
(a) any person or group of persons (within the
meaning of the Exchange Act), shall have acquired beneficial ownership
(within the meaning of Rule 13d-3 promulgated by the Commission under
the Exchange Act) of 50% or more of the issued and outstanding Voting
Stock of the Parent;
(b) during any period of twelve consecutive calendar
months, individuals who at the beginning of such period constituted the
Board of Directors of any of the Note Parties or their subsidiaries
(together with any new directors whose election by the Board of
Directors of the Parent or whose nomination for election by the
stockholders of any of the Note Parties or their subsidiaries was
approved by a vote of at least two-thirds of the directors then still
in office who either were directors at the beginning of such period or
whose elections or nomination for election was previously so approved)
cease for any reason other than death or disability to constitute a
majority of the directors then in office;
3
(c) the failure of the Parent to own directly,
beneficially and of record, 100% of the aggregate ordinary voting power
represented by the issued and outstanding Stock and Stock Equivalents
of Arch on a fully diluted basis; or
(d) the failure of Arch to own directly, beneficially
and of record, 100% of the aggregate ordinary voting power represented
by the issued and outstanding Stock and Stock Equivalents of the
Company on a fully diluted basis.
"CODE" means the Internal Revenue Code of 1986 (or any
successor legislation thereto), as amended from time to time.
"COLLATERAL" means any and all "Collateral" as defined in the
Collateral Agent Agreement and the Security Agreement.
"COLLATERAL AGENT" means [ ], in its capacity as
collateral agent under the Collateral Agent Agreement, or any successor thereto.
"COLLATERAL AGENT AGREEMENT" means the Collateral Agent
Agreement, substantially in the form of Exhibit C, among the Note Parties, the
Indenture Trustees, the Administrative Agent and the Collateral Agent, for the
benefit of the Secured Parties.
"COMMISSION" means the Securities and Exchange Commission.
"COMPANY" means the Person named as the "Company" in the first
paragraph of this Indenture.
"COMPANY REQUEST" or "COMPANY ORDER" means a written request
or order signed in the name of the Company by its Chairman of the Board, its
Chief Executive Officer, its Vice Chairman of the Board, its President, a Vice
President, its Chief Financial Officer, its Treasurer, an Assistant Treasurer,
its Secretary or an Assistant Secretary, and delivered to the Trustee.
"CONSOLIDATED NET INCOME" means, for any Person for any
period, the net income (or loss) of such Person and its subsidiaries for such
period, determined on a consolidated basis in conformity with GAAP; provided,
however, that: (a) the net income of any other Person in which such Person or
one of its subsidiaries has a joint interest with a third party (which interest
does not cause the net income of such other Person to be consolidated into the
net income of such Person in accordance with GAAP) shall be included only to the
extent of the amount of dividends or distributions paid to such Person or
subsidiary; (b) the net income of any subsidiary of such Person that is subject
to any restriction or limitation on the payment of dividends or the making of
other distributions shall be excluded to the extent of such restriction or
limitation; (c) (i) [THE NET INCOME (OR LOSS) OF ANY PERSON ACQUIRED IN A
POOLING OF INTEREST TRANSACTION FOR ANY PERIOD PRIOR TO THE DATE OF SUCH
ACQUISITION, AND (II)] any net gain (but not loss) resulting from an Asset Sale
by such Person or any of its subsidiaries other than in the ordinary course of
business shall be excluded; and (d) extraordinary gains and losses and any
one-time increase or decrease to net income which is required to be recorded
because of the adoption of new accounting policies, practices or standards
required by GAAP shall be excluded.
"CONSOLIDATED TOTAL ASSETS" means, at any date of
determination, the total assets of the Parent and the Subsidiaries determined on
a consolidated basis in accordance with GAAP at such date.
"CONTRACTUAL OBLIGATION" of any Person means any obligation,
agreement, undertaking or similar provision of any security issued by such
Person or of any agreement, undertaking, contract, lease, indenture, mortgage,
deed of trust or other instrument (excluding a Note Document) to which such
Person is a party or by which it or any of its property is bound or to which any
of its properties is subject.
4
"CONTROL" means the possession, directly or indirectly, of the
power to direct or cause the direction of the management or policies of a
Person, whether through the ability to exercise voting power, by contract or
otherwise. The terms "Controlling" and "Controlled" have meanings correlative
thereto.
"CORPORATE TRUST OFFICE" mean the principal office of the
Trustee in __________________, at which at any particular time its corporate
trust business shall be administered, which at the date hereof is
____________________________, _________________.
"CREDIT AGREEMENT" means one or more debt facilities or
agreements, in each case with banks or other institutional lenders providing for
revolving credit loans in an amount not to exceed $35,000,000 to be used on a
revolving credit basis for working capital purposes, in each case, as amended,
restated, modified, renewed, refunded, replaced, restructured, restated or
refinanced (including any agreement to extend the maturity thereof and adding
additional borrowers or guarantors) in whole or in part from time to time under
the same or any other agent, lender or group of lenders.
"CUSTOMARY PERMITTED LIENS" means, with respect to any Person,
any of the following Liens:
(a) Liens with respect to the payment of taxes,
assessments or governmental charges in all cases which are not yet due or which
are being contested in good faith by appropriate proceedings and with respect to
which adequate reserves or other appropriate provisions are being maintained to
the extent required by GAAP;
(b) Liens of landlords arising by statute and Liens of
suppliers, mechanics, carriers, materialmen, warehousemen or workmen and other
Liens imposed by law created in the ordinary course of business for amounts not
yet due or which are being contested in good faith by appropriate proceedings
and with respect to which adequate reserves or other appropriate provisions are
being maintained to the extent required by GAAP;
(c) deposits made in the ordinary course of business in
connection with worker's compensation, unemployment insurance or other types of
social security benefits or to secure the performance of bids, tenders, sales,
contracts (other than for the repayment of borrowed money) and surety, appeal,
customs or performance bonds;
(d) encumbrances arising by reason of zoning
restrictions, easements, licenses, reservations, covenants, rights-of-way,
utility easements, building restrictions and other similar encumbrances on the
use of real property that do not materially detract from the value of such real
property or interfere with the ordinary conduct of the business conducted and
proposed to be conducted at such real property;
(e) encumbrances arising under leases or subleases of
real property that do not in the aggregate materially detract from the value of
such real property or interfere with the ordinary conduct of the business
conducted and proposed to be conducted at such real property; and
(f) financing statements of a lessor's rights in and to
personal property leased to such Person in the ordinary course of such Person's
business.
"DEFAULT" means any event or condition which constitutes an
Event of Default or that upon notice, lapse of time or both would, unless cured
or waived, become an Event of Default.
"DEFINITIVE NOTE" means a certificated Note registered in the
name of the Holder thereof and issued in accordance with Section 2.07 hereof,
substantially in the form of Exhibit A hereto except that such Note shall not
bear the Global Note Legend and shall not have the "Schedule of Exchanges of
Interests in the Global Note" attached thereto.
5
"DEPOSITARY" means, with respect to the Notes issuable or
issued in whole or in part in global form, any Person authorized by the Company
to serve as the Depositary with respect to the Notes, until a successor shall
have been appointed and become such pursuant to the applicable provision of this
Indenture, and, thereafter, "Depositary" shall mean or include such successor.
"dollars" or "$" refers to lawful money of the United States
of America.
"DOMESTIC SUBSIDIARY" means, as to any Person, a subsidiary of
such Person organized under the laws of the United States of America, any state
thereof or the District of Columbia.
"EBITDA" means, with respect to any Person for any period, an
amount equal to: (a) Consolidated Net Income of such Person for such period;
plus (b) the sum of, in each case to the extent included in the calculation of
such Consolidated Net Income but without duplication, (i) any provision for
income taxes, (ii) Interest Expense, (iii) loss from extraordinary items, (iv)
depreciation, depletion and amortization of intangibles or financing or
acquisition costs, (v) all other non-cash charges and non-cash losses for such
period, including the amount of any compensation deduction as the result of any
grant of Stock or Stock Equivalents to employees, officers, directors or
consultants, other than charges representing accruals of future cash expenses,
(vi) severance payments to employees, whether or not previously reserved for and
(vii) all cash restructuring charges; minus (c) the sum of, in each case to the
extent included in the calculation of such Consolidated Net Income but without
duplication, (i) any credit for income tax, (ii) interest income, (iii) gains
from extraordinary items for such period, (iv) any aggregate net gain (but not
any aggregate net loss) from the sale, exchange or other disposition of capital
assets by such Person, and (v) any other non-cash gains or other items which
have been added in determining Consolidated Net Income, including any reversal
of a change referred to in clause (b)(v) above by reason of a decrease in the
value of any Stock or Stock Equivalent.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended.
"FISCAL QUARTER" means each of the three-month periods ending
on [March 31, June 30, September 30 and December 31].
"FISCAL YEAR" means the twelve-month period ending on
[December 31].
"FOREIGN SUBSIDIARY" means, as to any Person, any subsidiary
of such Person other than a Domestic Subsidiary.
"GAAP" means generally accepted accounting principles in
effect in the United States of America as of the date hereof unless another date
is specified herein.
"GLOBAL NOTE" means a Note substantially in the form of the
Note attached hereto as Exhibit A.
"GOVERNMENT SECURITIES" means direct obligations of, or
obligations fully and unconditionally guaranteed or insured by, the United
States of America or any agency or instrumentality thereof for the payment of
which obligations or guarantee the full faith and credit of the United States is
pledged and which are not callable or redeemable at the issuer's option.
"GOVERNMENTAL AUTHORITY" means the government of the United
States of America, any other nation or any political subdivision thereof,
whether state or local, and any agency, authority, instrumentality, regulatory
body, court, central bank or other entity exercising executive, legislative,
judicial, taxing, regulatory or administrative powers or functions of or
pertaining to government.
"GUARANTEE" means each guarantee by the Parent or any of the
Subsidiaries of any Notes or Junior Notes.
6
"GUARANTY OBLIGATION" means, as applied to any Person, any
direct or indirect liability, contingent or otherwise, of such Person with
respect to any Indebtedness of another Person, if the purpose or intent of such
Person in incurring the Guaranty Obligation is to provide assurance to the
obligee of such Indebtedness that such Indebtedness will be paid or discharged,
or that any holder of such Indebtedness will be protected (in whole or in part)
against loss in respect thereof, including: (a) the direct or indirect guaranty,
endorsement (other than for collection or deposit in the ordinary course of
business), co-making, discounting with recourse or sale with recourse by such
Person of Indebtedness of another Person; and (b) any liability of such Person
for Indebtedness of another Person through any agreement (contingent or
otherwise) (i) to purchase, repurchase or otherwise acquire such Indebtedness or
any security therefor, or to provide funds for the payment or discharge of such
Indebtedness (whether in the form of a loan, advance, stock purchase, capital
contribution or otherwise), (ii) to maintain the solvency or any balance sheet
item, level of income or financial condition of another Person, (iii) to make
take-or-pay or similar payments, if required, regardless of non-performance by
any other party or parties to an agreement, (iv) to purchase, sell or lease (as
lessor or lessee) property, or to purchase or sell services, primarily for the
purpose of enabling the debtor to make payment of such Indebtedness or to assure
the holder of such Indebtedness against loss, or (v) to supply funds to or in
any other manner invest in such other Person (including to pay for property or
services irrespective of whether such property is received or such services are
rendered), if in the case of any agreement described under subclause (i), (ii),
(iii), (iv) or (v) of clause (b) of this sentence the primary purpose or intent
thereof is as described in the preceding sentence. The amount of any Guaranty
Obligation shall be equal to the amount of the Indebtedness so guaranteed or
otherwise supported.
"GUARANTORS" means, collectively, the Parent, Arch and each of
the Subsidiary Guarantors.
"HEDGING CONTRACTS" means all Interest Rate Contracts, foreign
exchange contracts, currency swap or option agreements, forward contracts,
commodity swap, purchase or option agreements, other commodity price hedging
arrangements, and all other similar agreements or arrangements designed to alter
the risks of any Person arising from fluctuations in interest rates, currency
values or commodity prices.
"HOLDER" means a Person in whose name a Note is registered in
the Note Register.
"INDEBTEDNESS" of any Person means without duplication: (a)
all indebtedness of such Person for borrowed money; (b) all obligations of such
Person evidenced by notes, bonds, debentures or similar instruments or which
bear interest; (c) all reimbursement and all obligations with respect to letters
of credit, bankers' acceptances, surety bonds and performance bonds, whether or
not matured; (d) all indebtedness for the deferred purchase price of property or
services, other than trade payables incurred in the ordinary course of business
which are not overdue; (e) all indebtedness of such Person created or arising
under any conditional sale or other title retention agreement with respect to
property acquired by such Person (even though the rights and remedies of the
seller or lender under such agreement in the event of default are limited to
repossession or sale of such property); (f) all obligations of such Person under
Capital Leases and the present value of future rental payments under all
synthetic leases; (g) all Guaranty Obligations of such Person; (h) all
obligations of such Person to purchase, redeem, retire, defease or otherwise
acquire for value any Stock or Stock Equivalents of such Person, valued, in the
case of redeemable preferred stock, at the greater of its voluntary or
involuntary liquidation preference plus accrued and unpaid dividends; (i) all
payments that such Person would have to make in the event of an early
termination on the date Indebtedness of such Person is being determined in
respect of Hedging Contracts of such Person; and (j) all Indebtedness of the
type referred to above secured by (or for which the holder of such Indebtedness
has an existing right, contingent or otherwise, to be secured by) any Lien upon
or in property (including Accounts (as defined in the Security Agreement) and
general intangibles) owned by such Person, even though such Person has not
assumed or become liable for the payment of such Indebtedness.
"INDENTURE" means this instrument as originally executed or as
it may from time to time be supplemented or amended by one or more indentures
entered into pursuant to applicable provisions hereof.
7
"INDENTURE TRUSTEES" means the Senior Indenture Trustee and
the Junior Indenture Trustee.
"INTEREST EXPENSE" means, for any Person for any period, the
total interest expense of such Person and its subsidiaries for such period
determined on a consolidated basis in conformity with GAAP and including, in any
event, interest capitalized [DURING CONSTRUCTION] for such period and net costs
under Interest Rate Contracts for such period (without deducting therefrom any
(i) net gains of such Person and its subsidiaries under Interest Rate Contracts
for such period determined on a consolidated basis in conformity with GAAP, or
(ii) interest income of such Person and its subsidiaries for such period
determined on a consolidated basis in conformity with GAAP).
"INTEREST PAYMENT DATE" means the Stated Maturity of an
installment of interest on the Notes.
"INTEREST PERIOD" means (i) the period commencing on the date
hereof and ending on and including the day immediately preceding the next
succeeding Interest Payment Date and (ii) the period commencing on and including
an Interest Payment Date and ending on and including the day immediately
preceding the next succeeding Interest Payment Date.
"INTEREST RATE CONTRACTS" means all interest rate swap
agreements, interest rate cap agreements, interest rate collar agreements and
interest rate insurance.
"INVESTMENT" means, with respect to any Person: (a) any
purchase or other acquisition by that Person of (i) any security issued by, (ii)
a beneficial interest in any security issued by, or (iii) any other equity
ownership interest in, any other Person; (b) any purchase by that Person of all
or a significant part of the assets of a business conducted by another Person;
(c) any loan, advance (other than deposits with financial institutions available
for withdrawal on demand, prepaid expenses, accounts receivable and similar
items made or incurred in the ordinary course of business as presently
conducted), or capital contribution by that Person to any other Person,
including all Indebtedness of any other Person to that Person arising from a
sale of property by that Person other than in the ordinary course of its
business; and (d) any guarantee incurred by that Person in respect of
Indebtedness of any other Person.
"JUNIOR INDENTURE" means the Indenture, dated as of [ ], 2002,
between the Note Parties and the Junior Indenture Trustee pursuant to which the
Company issued the Junior Notes.
"JUNIOR INDENTURE TRUSTEE" means [ ], in its capacity as
trustee under the Junior Indenture, and any successor thereto.
"JUNIOR NOTES" means the 12% Subordinated Secured Compounding
Notes due 2009 issued by the Company under the Junior Indenture.
"LIEN" means any mortgage, deed of trust, pledge,
hypothecation, assignment, charge, deposit arrangement, encumbrance, lien
(statutory or other), security interest or preference, priority or other
security agreement or preferential arrangement of any kind or nature whatsoever
intended to assure payment of any Indebtedness or other obligation, including
any conditional sale or other title retention agreement, the interest of a
lessor under a Capital Lease, any financing lease having substantially the same
economic effect as any of the foregoing, and the filing of any financing
statement under the UCC or comparable law of any jurisdiction naming the owner
of the asset to which such Lien relates as debtor.
"LOAN DOCUMENTS" means any Credit Agreement, the promissory
notes issued thereunder, any guarantees thereof and the documentation in respect
of each letter of credit issued thereunder.
"MAJORITY NOTEHOLDERS" means, at any time, Holders
representing at least a majority of the aggregate principal amount of
Outstanding Notes.
8
"MATERIAL ADVERSE EFFECT" means a material adverse effect on
any of (a) the condition (financial or otherwise), business, performance,
prospects, operations or properties of any of the Parent and the Subsidiaries,
taken as a whole, (b) the legality, validity or enforceability of any Secured
Debt Document; (c) the perfection or priority of the Liens granted pursuant to
the Security Documents; (d) the ability of the Parent or any of the Subsidiaries
to repay the Obligations or perform its respective obligations under the Secured
Debt Documents; or (e) the ability of the Administrative Agent, the Indenture
Trustees or the Collateral Agent to enforce the rights and remedies under the
Secured Debt Documents.
"MATERIAL FOREIGN SUBSIDIARY" means, as to any Person, a
Foreign Subsidiary of such Person which, as of the last day of the most recently
completed fiscal quarter, satisfied any one or more of the following three
tests: (i) the amount of the Investments in such Foreign Subsidiary made by the
Parent and the Subsidiaries on or after the date hereof exceeds $5,000,000 in
the aggregate, (ii) the Parent's and the Subsidiaries' (other than such Foreign
Subsidiary's) proportionate share of Consolidated Total Assets (after
intercompany eliminations) consisting of the property of such Foreign Subsidiary
exceeds 2% of Consolidated Total Assets or (iii) the Parent's and the
Subsidiaries' (other than such Foreign Subsidiary's) equity in the income (not
to include losses) from continuing operations before income taxes, extraordinary
items and the cumulative effect of a change in accounting principles of such
Foreign Subsidiary exceeds 2% of the income (not to include losses) from
continuing operations before income taxes, extraordinary items and the
cumulative effect of a change in accounting principles of the Parent and the
Subsidiaries determined on a consolidated basis in accordance with GAAP.
"MATERIAL OBLIGATIONS" means Indebtedness (other than
Indebtedness under the Note Documents) or other obligations of any one or more
of the Parent or any of the Subsidiaries in an aggregate principal amount equal
to or exceeding $500,000. For purposes of determining Material Obligations, the
"principal amount" of the obligations of the Parent or any Subsidiary in respect
of any Hedging Contract at any time shall be the maximum aggregate amount
(giving effect to any netting agreements) that the Parent or any Subsidiary, as
applicable, would be required to pay if such Hedging Contract were terminated at
such time.
"MATURITY" means, with respect to any Note, the date on which
any principal of such Note becomes due and payable as provided therein or in
this Indenture, whether at the Stated Maturity with respect to such principal or
by declaration of acceleration, call for redemption, purchase or otherwise.
"MATURITY DATE" means [ ], 2007.
"MORTGAGE" means a mortgage, deed of trust, assignment of
leases and rents or other security document granting a Lien on any Mortgaged
Property (as defined in the Security Agreement) to secure the Obligations.
"NET CASH PROCEEDS" means proceeds received by any Note Party
after the date hereof in cash or Cash Equivalents from any: (a) Asset Sale in
excess of $2 million, net of (i) the reasonable cash costs of sale, assignment
or other disposition and (ii) taxes paid or payable as a result thereof or (b)
Property Loss Event; provided, however, that in the case of any Net Cash
Proceeds arising from a Property Loss Event in an amount less than $1,000,000,
(i) if the Company shall deliver a certificate of a financial officer thereof to
the Collateral Agent and the Trustee within 30 days after the date thereof
setting forth such Note Party's intent to use the proceeds of such Property Loss
Event to repair or replace the assets that are the subject thereof with, or
otherwise purchase, other assets to be used in the same line of business within
180 days of the receipt of such Net Cash Proceeds and no Default shall have
occurred and be continuing at the time of such certificate or at the proposed
time of the application of such proceeds or (ii) the Majority Noteholders shall
have consented to such use in writing, such proceeds shall not constitute Net
Cash Proceeds except to the extent not so used at the end of such 180-day
period, at which time such proceeds shall be deemed Net Cash Proceeds.
"NON-MATERIAL FOREIGN SUBSIDIARY" means as to any Person at
any time of determination, a Foreign Subsidiary of such Person other than a
Material Foreign Subsidiary.
9
"NOTE CUSTODIAN" means any Person authorized by the Company to
serve as custodian with respect to the Notes in global form, or any successor
entity thereto.
"NOTE DOCUMENTS" means this Indenture, the Notes and the
guarantees thereof, the Junior Indenture, the Junior Notes and the guarantees
thereof and the Security Documents.
"NOTES" has the meaning set forth in the recitals to this
Indenture.
"NOTE PARTIES" means the Company and the Guarantors.
"OBLIGATIONS" shall have the meaning set forth in the Security
Agreement.
"OFFICERS' CERTIFICATE" means a certificate signed by the
Chairman of the Board, the President or a Vice President, and by the Chief
Financial Officer, the Treasurer, an Assistant Treasurer, the Secretary or an
Assistant Secretary, of the Company, and delivered to the Trustee. One of the
officers signing an Officers' Certificate given pursuant to Section 10.27 shall
be the principal executive, financial or accounting officer of the Company.
"ONE-WAY CAPITAL EXPENDITURES" means, for any Person for any
period, the Capital Expenditures made by such Person for such period in respect
of one-way paging services.
"OPINION OF COUNSEL" means a written opinion of counsel, who
may (unless otherwise required by the Trust Indenture Act) be counsel for the
Company and who may rely as to factual matters on an Officers' Certificate, and
who shall be reasonably acceptable to the Trustee.
"OUTSTANDING," when used with respect to Notes, means, as of
the date of determination, all Notes theretofore authenticated and delivered
under this Indenture, except:
(a) Notes theretofore canceled by the Trustee or
delivered to the Trustee for cancellation;
(b) Notes for whose payment or redemption money in
the necessary amount has been theretofore deposited with the Trustee or
any Paying Agent (other than the Company) in trust or set aside and
segregated in trust by the Company (if the Company shall act as its own
Paying Agent) for the Holders of such Notes; provided that if such
Notes are to be redeemed, notice of such redemption has been duly given
pursuant to this Indenture or provision therefor satisfactory to the
Trustee has been made; and
(c) Notes in exchange for or in lieu of which other
Notes have been authenticated and delivered pursuant to this Indenture,
other than any such Notes in respect of which there shall have been
presented to the Trustee proof satisfactory to it that such Notes are
held by a bona fide purchaser in whose hands such Notes are valid
obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Notes have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Notes owned by
the Company or any other obligor upon the Notes or any Affiliate of the Company
or of such other obligor shall be disregarded and deemed not to be Outstanding,
except that, in determining whether the Trustee shall be protected in relying
upon any such request, demand, authorization, direction, notice, consent or
waiver, only Notes which the Trustee actually knows to be so owned shall be so
disregarded. Notes so owned which have been pledged in good faith may be
regarded as Outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgee's right so to act with respect to such Notes and that the
pledgee is not the Company or any other obligor upon the Notes or any Affiliate
of the Company or of such other obligor.
"PARENT" means Arch Wireless, Inc., a Delaware corporation.
10
"PAYING AGENT" means any Person authorized by the Company to
pay the principal of or interest on any Notes on behalf of the Company.
"PERMIT" means any permit, approval, authorization, license,
variance or permission required from a Governmental Authority under an
applicable Requirement of Law.
"PERSON" means any natural person, corporation, limited
liability company, trust, joint venture, association, company, partnership,
Governmental Authority or other entity.
"PROPERTY LOSS EVENT" means any loss of or damage to property
of any Note Party that results in the receipt by such Person of proceeds of
insurance or any taking of property of any Note Party that results in the
receipt by such Person of a compensation payment in respect thereof.
"REDEMPTION DATE," when used with respect to any Note to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"REDEMPTION PRICE," when used with respect to any Note to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"REGULAR RECORD DATE" for the interest payable on any Interest
Payment Date means the [ ] or [ ] (whether or not a Business Day), as the case
may be, next preceding such Interest Payment Date.
"REPRESENTATIVE" means the Trustee or other trustee, agent or
representative for any Senior Debt.
"REQUIREMENT OF LAW" means, with respect to any Person, the
common law and all federal, state, local and foreign laws, rules and
regulations, orders, judgments, decrees and other legal requirements or
determinations of any Governmental Authority or arbitrator, applicable to or
binding upon such Person or any of its property or to which such Person or any
of its property is subject.
"RESELLER" means any Account Debtor who purchases paging
devices and/or network services for the purpose of reselling such devices and
services.
"RESPONSIBLE OFFICER," when used with respect to the Trustee,
means an officer of the Trustee in the Corporate Trust Office assigned and duly
authorized by the Trustee to administer this Indenture and, when used with
respect to any other Person, any other officer to whom a matter is referred
because of his or her knowledge of and familiarity with a particular subject.
"RESTRICTED PAYMENT" means: (a) any dividend or other
distribution, direct or indirect, on account of any Stock or Stock Equivalents
of the Company or any of its subsidiaries now or hereafter outstanding, except a
dividend payable solely in Stock or Stock Equivalents or a dividend or
distribution payable solely to the Company and/or one or more Subsidiary
Guarantors; (b) any redemption, retirement, sinking fund or similar payment,
purchase or other acquisition for value, direct or indirect, of any Stock or
Stock Equivalents of the Company or any of its subsidiaries now or hereafter
outstanding other than one payable solely to the Company and/or one or more
Subsidiary Guarantors; and (c) any payment or prepayment of principal, premium,
if any, interest, fees (including fees to obtain any waiver or consent) or other
charges on, or redemption, purchase, retirement, defeasance, sinking fund or
similar payment with respect to, the Junior Notes or any other Indebtedness of
the Company or any of its subsidiaries or any other Note Party which by its
terms is subordinated to the Notes, other than any required redemptions,
retirement, purchases or other payments, in each case to the extent permitted to
be made by the terms of such Indebtedness after giving effect to any applicable
subordination provisions or as permitted by Section 10.15 hereof.
11
"RETAIL UNITS IN SERVICE" means Units in Service acquired
through any third party retailers.
"REVENUE" means, with respect to any Person for any period, an
amount equal to the revenue or earnings of such Person for such period
determined on a consolidated basis in conformity with GAAP.
"SECURED DEBT DOCUMENTS" means the Security Documents, the
Loan Documents, this Indenture, the Junior Indenture, the Notes and the Junior
Notes.
"SECURED PARTIES" means the "Secured Parties" as defined in
the Security Agreement.
"SECURITY AGREEMENT" means the Security Agreement,
substantially in the form of Exhibit D, among the Note Parties, the
Administrative Agent and the Collateral Agent, for the benefit of the Secured
Parties.
"SECURITY DOCUMENTS" means, collectively, all of the
agreements, instruments, documents, pledges or filings executed in connection
with granting, or that otherwise evidence, the Lien of the Collateral Agent in
the Collateral, including, without limitation, the Collateral Agent Agreement,
the Security Agreement and each Mortgage creating a Lien that secures the Notes
and the guarantees thereof, the Senior Notes and the guarantees thereof, and the
Credit Agreement, if any, and any other document, agreement, instrument, pledge
or filing executed in connection with the granting, or that otherwise evidence,
the Lien of the Collateral Agent on the Collateral.
"SENIOR DEBT" means all Indebtedness outstanding under any
Credit Agreement and all Hedging Contracts with respect thereto.
"SENIOR INDENTURE TRUSTEE" means the Trustee.
"SPECIAL RECORD DATE" for the payment of any Defaulted
Interest means a date fixed by the Trustee pursuant to Section 2.11.
"SRM REVENUE" means, with respect to any Person for any
period, the consolidated Revenue of such Person and its consolidated
subsidiaries solely in respect of the provision of network service for the
rental and maintenance of paging devices for such period.
"STATED MATURITY" means, when used with respect to any Note or
any installment of interest thereon, the date specified in such Note as the
fixed date on which the principal of such Note or such installment of interest
is due and payable.
"STOCK" means shares of capital stock (whether denominated as
common stock or preferred stock), beneficial, partnership or membership
interests, participations or other equivalents (regardless of how designated) of
or in a corporation, limited liability company, trust, joint venture,
association, company, partnership or other entity, whether voting or non-voting.
"STOCK EQUIVALENTS" means all securities convertible into or
exchangeable for Stock and all warrants, options or other rights to purchase or
subscribe for any Stock, whether or not presently convertible, exchangeable or
exercisable.
"subsidiary" means, with respect to any Person (the "parent")
at any date, any corporation, limited liability company, partnership,
association or other entity the accounts of which would be consolidated with
those of the parent in the parent's consolidated financial statements if such
financial statements were prepared in accordance with GAAP as of such date, as
well as any other corporation, limited liability company, trust, joint venture,
association, company, partnership or other entity of which securities or other
ownership interests representing more than 50% of the equity or more than 50% of
the
12
ordinary voting power are or, in the case of a partnership, more than 50% of the
general partnership interests is, as of such date, owned, controlled or held by
the parent or one or more subsidiaries of the parent.
"SUBSIDIARY" means any subsidiary of the Parent; provided,
however, that:
(a) [for the period from the date hereof through the date
which is 367 days after the later of (1) June 1, 2002 and (2) the termination of
the Asset Acquisition Agreement, dated as of January 24, 2001, by and among
Unrestricted Subsidiary Funding Company, the Parent, PageNet SMR Sub, Inc., and
AWI Spectrum Co., LLC, AWI Spectrum Co., LLC and AWI Spectrum Co. Holdings, Inc.
shall not be deemed to be Subsidiaries for purposes of this Indenture; provided
that on and after such date, each of AWI Spectrum Co., LLC and AWI Spectrum
Holdings, Inc. shall be deemed to be Subsidiaries for purposes of this
Indenture; and]
(b) any subsidiary of Paging Network Canadian Holdings,
Inc. that is organized under the laws of Canada or any province thereof and that
is a borrower under, or guarantor of, a credit facility existing on the date
hereof extended by one or more Canadian banks shall not be deemed to be a
Subsidiary for purposes of this Indenture; provided that on and after the date
on which such subsidiary ceases to be a borrower or guarantor, it shall be
deemed to be a Subsidiary for purposes of this Indenture.
"SUBSIDIARY GUARANTOR" means all of the current and future
Domestic Subsidiaries of the Parent other than the Company[, AWI Spectrum Co.,
LLC and AWI Spectrum Co. Holdings, Inc.]
"TRUSTEE" means the Person named as the "Trustee" in the first
paragraph of this Indenture until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean such successor Trustee.
"TRUST INDENTURE ACT" or "TIA" means the Trust Indenture Act
of 1939 as in force at the date as of which this Indenture was executed;
provided, however, that in the event the Trust Indenture Act of 1939 is amended
after such date, "Trust Indenture Act" means, to the extent required by any such
amendment, the Trust Indenture Act of 1939 as so amended.
"TWO-WAY CAPITAL EXPENDITURES" means, for any Person for any
period, the Capital Expenditures made by such Person for such period in respect
of two-way paging services.
"UCC" means, at any time, the Uniform Commercial Code in
effect in the State of New York at such time.
"UNITS IN SERVICE" means, at any date: (a) messaging devices
for which messaging services are provided by the Parent and the Subsidiaries as
of such date directly to customers; and (b) messaging devices for which
messaging services are provided through a Reseller of the Parent and the
Subsidiaries as of such date, calculated in a manner consistent with the manner
in which the Parent determines Units in Service as of the date hereof.
"VICE PRESIDENT," when used with respect to the Company or the
Trustee, means any vice president, whether or not designated by a word or a
number of words added before or after the title "vice president."
"VOTING STOCK" means Stock of any Person having ordinary power
to vote in the election of members of the Board of Directors of such Person
(irrespective of whether, at the time, Stock of any other class or classes of
such entity shall have or might have voting power by reason of the happening of
any contingency).
SECTION 1.02. OTHER DEFINITIONS.
13
Defined in
Term Section
---- -------
"Act"............................................... 1.05
"Affiliate Transaction"............................. 10.14
"Asset Sale"........................................ 10.11
"Benefited Party"................................... 12.01
"Change of Control Offer"........................... 10.15
"Change of Control Purchase Price".................. 10.15
"Cumulative Consolidated SRM Revenue"............... 10.23
"Cumulative EBITDA"................................. 10.21
"CUSIP"............................................. 2.15
"Defaulted Interest"................................ 2.11
"Direct Customer Units in Service".................. 10.22
"Event of Default".................................. 4.01
"Note Register"..................................... 2.04
"Paying Agent"...................................... 2.04
"Permitted Investments"............................. 10.10
"Permitted Liens"................................... 10.08
"Quarterly Consolidated SRM Revenue"................ 10.23
"Quarterly EBITDA".................................. 10.21
"Registrar"......................................... 2.04
"Six-Month Period".................................. 11.05
"Surviving Entity".................................. 7.01
SECTION 1.03. INCORPORATION BY REFERENCE OF THE TRUST INDENTURE ACT.
(a) Whenever this Indenture refers to a provision of
the TIA, the provision is incorporated by reference in and made a part
of this Indenture.
(b) The following TIA terms used in this Indenture
have the following meanings:
"indenture securities" means the Notes;
"indenture security holder" means a Holder of a Note;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the
Trustee; and
"obligor" on the Notes means the Company and any successor
obligor upon the Notes.
(c) All other terms used in this Indenture that are
defined by the TIA, defined by TIA reference to another statute or
defined by Commission rule under the TIA have the meanings so assigned
to them.
SECTION 1.04. FORM OF DOCUMENTS DELIVERED TO TRUSTEE.
In any case where several matters are required to be certified
by, or covered by an opinion of, any specified Person, it is not necessary that
all such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
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Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or Opinion of
Counsel, unless such officer knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to the
matters upon which such officer's certificate or opinion is based are erroneous.
Any such certificate or Opinion of Counsel may be based, insofar as it relates
to factual matters, upon a certificate or opinion of, or representations by, an
officer or officers of the Company stating that the information with respect to
such factual matters is in the possession of the Company, unless such counsel
knows that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be consolidated
and form one instrument.
SECTION 1.05. ACTS OF HOLDERS; RECORD DATES.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given or taken
by the Majority Noteholders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by the Majority Noteholders in
person or by agent duly appointed in writing; and, except as herein otherwise
expressly provided, such action shall become effective when such instrument or
instruments are delivered to the Trustee and, where it is hereby expressly
required, to the Company. Such instrument or instruments (and the action
embodied therein and evidenced thereby) are herein sometimes referred to as the
"ACT" of the Majority Noteholders signing such instrument or instruments. Proof
of execution of any such instrument or of a writing appointing any such agent
shall be sufficient for any purpose of this Indenture and (subject to Section
5.01) conclusive in favor of the Trustee and the Company, if made in the manner
provided in this Section.
(b) The fact and date of the execution by any Person of any
such instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee deems sufficient.
(c) The Company or the Trustee may, in the circumstances
permitted by the Trust Indenture Act, fix any day as the record date for the
purpose of determining the Holders entitled to give or take any request, demand,
authorization, direction, notice, consent, waiver or other action, or to vote on
any action, authorized or permitted to be given or taken by Holders, and the
Company agrees to notify the Trustee of any such fixing of a record date. If not
set by the Company or the Trustee prior to the first solicitation of a Holder
made by any Person in respect of any such action, or, in the case of any such
vote, prior to such vote, the record date for any such action or vote shall be
the 30th day (or, if later, the date of the most recent list of Holders required
to be provided pursuant to Section 6.01) prior to such first solicitation or
vote, as the case may be. With regard to any record date, only the Holders on
such date (or their duly designated proxies) shall be entitled to give or take,
or vote on, the relevant action.
(d) The ownership of Notes shall be proved by the Note
Register.
(e) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Majority Noteholders shall bind every future
Holder of the same Note and the Holder of every Note issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustee or the
Company in reliance thereon, whether or not notation of such action is made upon
such Note.
SECTION 1.06. BENEFITS OF INDENTURE.
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Nothing in this Indenture or in the Notes, express or implied,
shall give to any Person, other than the parties hereto and their successors
hereunder and the Holders of Notes, any benefit or any legal or equitable right,
remedy or claim under this Indenture.
SECTION 1.07. LEGAL HOLIDAYS.
In any case where any Interest Payment Date, Redemption Date,
or Stated Maturity of any Note shall not be a Business Day, then
(notwithstanding any other provision of this Indenture or of the Notes) payment
of interest or principal need not be made on such date, but may be made on the
next succeeding Business Day with the same force and effect as if made on the
Interest Payment Date, Redemption Date, or at the Stated Maturity; provided that
no interest shall accrue for the period from and after such Interest Payment
Date, Redemption Date, or Stated Maturity, as the case may be.
ARTICLE II
THE NOTES
SECTION 2.01. TITLE AND TERMS.
The aggregate principal amount of Notes which may be
authenticated and delivered under this Indenture is limited to $200,000,000,
except for Notes authenticated and delivered upon registration of transfer of,
or in exchange for, or in lieu of, other Notes pursuant to Section 2.09, 2.10,
8.06 or 9.09.
The Notes shall be known and designated as the "10% Senior
Subordinated Secured Notes due 2007" of the Company. The Stated Maturity of the
Notes shall be [ ], 2007. Interest on the Notes will accrue at a rate per annum
equal to 10%, payable in cash semi-annually in arrears on each [ ] and [ ]
commencing [ ], 2002, to the persons in whose names the Notes are registered at
the close of business on the preceding [ ] or [ ], as the case may be. Interest
will accrue from the most recent Interest Payment Date to which interest has
been paid or duly provided for or, if no interest has been paid or duly provided
for, from the date of original issuance of the Notes. Interest will be computed
on the basis of a 360-day year of twelve 30-day months. If at any time an Event
of Default has occurred and is continuing, the Company shall pay interest on
demand at a rate that is 2% per annum in excess of the rate then in effect; it
shall pay interest on overdue installments of interest from time to time on
demand at the same rate to the extent lawful.
The principal of and interest on the Notes shall be payable at
the office or agency of the Company in the Borough of Manhattan, The City of New
York, New York, maintained for such purpose and at any other office or agency
maintained by the Company for such purpose; provided, however, that at the
option of the Company payment of interest may be made by check mailed to the
address of the Person entitled thereto as such address shall appear in the Note
Register. Payment of the principal of on the Notes will be made upon the
presentation of the Notes at the office or agency of the Company maintained for
that purpose in the Borough of Manhattan, The City of New York, New York.
The Notes shall be redeemable as provided in Article IX.
The Notes shall not have the benefit of any sinking fund
obligations.
The Notes shall be guaranteed pursuant to the terms of the
Article XII hereof and shall be secured pursuant to the terms of the Security
Documents.
SECTION 2.02. FORM AND DATING.
(a) GENERAL. The Notes and the Trustee's certificate of
authentication shall be substantially in the form of Exhibit A hereto. The Notes
may have notations, legends or endorsements
16
required by law, stock exchange rules or usage. Each Note shall be dated the
date of its authentication. The Notes shall be issued in fully registered form,
without coupons, in denominations of $1,000 and integral multiples thereof. The
terms and provisions contained in the Notes shall constitute, and are hereby
expressly made, a part of this Indenture, and 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.
(b) FORM OF NOTES. Notes issued in global form shall be
substantially in the form of Exhibit A attached hereto (including the Global
Note Legend and the "Schedule of Exchanges of Interests in Global Notes"
attached thereto). Notes issued in definitive form shall be substantially in the
form of Exhibit A attached hereto (but without including the Global Note Legend
and the "Schedule of Exchanges of Interests in Global Notes" attached thereto).
Each Global Note shall represent such of the outstanding Notes as shall be
specified therein, and each shall provide that it shall represent the aggregate
principal amount of outstanding Notes from time to time endorsed thereon and
that the aggregate principal amount of outstanding Notes represented thereby may
from time to time be reduced or increased, as appropriate, to reflect exchanges
and redemptions. Any endorsement of a Global Note to reflect the amount of any
increase or decrease in the amount of outstanding Notes represented thereby
shall be made by the Trustee or the Note Custodian, at the direction of the
Trustee, in accordance with written instructions given by the Holder thereof as
required by Section 2.07 hereof in such form as is reasonably satisfactory to
the Trustee.
(c) BOOK-ENTRY PROVISIONS. This Section 2.02 (c) shall
only apply to Global Notes deposited with the Trustee, as custodian for the
Depositary. Participants and indirect participants shall have no rights under
this Indenture with respect to any Global Note held on their behalf by the
Depositary or by the Trustee as the custodian for the Depositary or under such
Global Note, and the Depositary shall be treated by the Company, the Trustee and
any agent of the Company or the Trustee as the absolute owner of such Global
Note for all purposes whatsoever. Notwithstanding the foregoing, nothing herein
shall prevent the Company, the Trustee or any agent of the Company or the
Trustee from giving effect to any written certification, proxy or other
authorization furnished by the Depositary or impair, as between the Depositary
and its participants or indirect participants, the Applicable Procedures or the
operation of customary practices of the Depositary governing the exercise of the
rights of a holder of a beneficial interest in any Global Note.
SECTION 2.03. EXECUTION AND AUTHENTICATION.
(a) One officer shall sign the Notes for the Company
by manual or facsimile signature.
(b) If an officer whose signature is on a Note no
longer holds that office at the time a Note is authenticated, the Note
shall nevertheless be valid.
(c) A Note shall not be valid until authenticated by
the manual signature of the Trustee. The signature shall be conclusive
evidence that the Note has been authenticated under this Indenture.
(d) The Trustee shall, upon a receipt of a Company
Order requesting that notes be authenticated by the Trustee
authenticate Notes for original issue.
(e) The Trustee may appoint an authenticating agent
acceptable to the Company to authenticate Notes. An authenticating
agent may authenticate Notes 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 Holders or an Affiliate of the Company.
SECTION 2.04. REGISTRAR, PAYING AGENT AND DEPOSITARY.
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The Company shall maintain an office or agency where Notes may
be presented for registration of transfer or for exchange ("REGISTRAR") and an
office or agency where Notes may be presented for payment ("PAYING AGENT"). The
Registrar shall keep in a register of the Notes (the "NOTE REGISTER"), the names
and addresses of the Holders and of their transfer and exchange. The Company,
upon prior written notice to the Trustee, may appoint one or more co-registrars
and one or more additional paying agents. The term "Registrar" includes any
co-registrar and the term "Paying Agent" includes any additional paying agent.
The Company may change any Paying Agent or Registrar without notice to any
Holder. The Company shall notify the Trustee in writing of the name and address
of any Agent not a party to this Indenture. The Company or any of its
subsidiaries may act as Paying Agent or Registrar. The Company shall enter into
an appropriate agency agreement with any Agent not a party to this Indenture,
which shall incorporate the provisions of the Trust Indenture Act. Such
agreement shall implement the provisions of this Indenture that relate to such
Agent. The Company shall notify the Trustee of the name and address of such
Agent.
The Company initially appoints The Depository Trust Company to
act as Depositary with respect to the Global Notes.
The Company initially appoints the Trustee to act as the
Registrar and Paying Agent and to act as Note Custodian with respect to the
Global Notes.
SECTION 2.05. PAYING AGENT TO HOLD MONEY IN TRUST.
The Company shall require each Paying Agent other than the
Trustee to agree in writing that the Paying Agent shall hold in trust for the
benefit of Holders or the Trustee all money held by the Paying Agent for the
payment of principal, premium, if any, or interest, if any, on the Notes, and
shall notify the Trustee of any default by the Company in making any such
payment. While any such default continues, the Trustee may require a Paying
Agent to pay all money held by it to the Trustee. The Company at any time may
require a Paying Agent to pay all money held by it to the Trustee. Upon payment
over to the Trustee, the Paying Agent (if other than the Company or a
Subsidiary) shall have no further liability for the money. If the Company or a
Subsidiary acts as Paying Agent, it shall segregate and hold in a separate trust
fund for the benefit of the Holders all money held by it as Paying Agent. Upon
any bankruptcy or reorganization proceedings relating to the Company, the
Trustee shall serve as Paying Agent for the Notes.
SECTION 2.06. HOLDER LISTS.
The Trustee shall preserve in as current a form as is
reasonably practicable the most recent list available to it of the names and
addresses of all Holders and shall otherwise comply with TIA Section 312(a). If
the Trustee is not the Registrar, the Company shall furnish to the Trustee at
least seven Business Days before each Interest Payment Date and at such other
times as the Trustee may request in writing, a list in such form and as of such
date or such shorter time as the Trustee may allow, as the Trustee may
reasonably require of the names and addresses of the Holders and the Company
shall otherwise comply with TIA Section 312(a).
SECTION 2.07. TRANSFER AND EXCHANGE.
(a) TRANSFER AND EXCHANGE OF DEFINITIVE NOTES. When Definitive
Notes are presented by a Holder to the Registrar with a request (1) to register
the transfer of the Definitive Notes or (2) to exchange such Definitive Notes
for an equal principal amount of Definitive Notes of other authorized
denominations, the Registrar shall register the transfer or make the exchange as
requested if its requirements for such transactions are met; provided that any
Definitive Notes presented or surrendered for registration of transfer or
exchange shall be duly endorsed or accompanied by a written instruction of
transfer in form satisfactory to the Registrar duly executed by the Holder
thereof or by his attorney duly authorized in writing.
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(b) TRANSFER OF A DEFINITIVE NOTE FOR A BENEFICIAL INTEREST IN
THE GLOBAL NOTE. A Definitive Note may be exchanged for a beneficial interest in
the Global Note only upon receipt by the Trustee of a Definitive Note, duly
endorsed or accompanied by appropriate instruments of transfer, in form
satisfactory to the Trustee, together with written instructions directing the
Trustee to make an endorsement on the Global Note to reflect an increase in the
aggregate principal amount of the Notes represented by the Global Note.
(c) TRANSFER OF A BENEFICIAL INTEREST IN A GLOBAL NOTE FOR A
DEFINITIVE NOTE. A beneficial interest in the Global Note may be exchanged for a
Definitive Note only under the circumstances described in Section 2.07(g) and
upon receipt by the Trustee of written transfer instructions (or such other form
of instructions as is customary for the Depositary) from the Depositary (or its
nominee) on behalf of any Person having a beneficial interest in a Global Note
that such Note is being transferred, in which case the Trustee shall, in
accordance with the standing instructions and procedures existing between the
Depositary and the Trustee, cause the aggregate principal amount of the Global
Note to be reduced accordingly and, following such reduction, the Company shall
execute and the Trustee shall authenticate and make available for delivery to
the transferee a Definitive Note in the appropriate principal amount.
(d) TRANSFER AND EXCHANGE OF BENEFICIAL INTERESTS IN THE
GLOBAL NOTE. The transfer and exchange of beneficial interests in the Global
Note shall be effected through the Depositary in accordance with this Indenture
and the procedures of the Depositary therefor, which shall include restrictions
on transfer comparable to those set forth herein to the extent required by the
Securities Act of 1933, as amended.
When a Global Note is presented to the Registrar with a
request (1) to register the transfer of the Global Note or (2) to exchange such
Global Notes for an equal principal amount of Notes of other denominations, the
Registrar shall register the transfer or make the exchange if its requirements
for such transactions are met; provided, however, that any Note presented or
surrendered for registration of transfer or exchange shall be duly endorsed or
accompanied by a written instruction of transfer in form satisfactory to the
Registrar and the Trustee duly executed by the Holder thereof or by his attorney
duly authorized in writing. To permit registrations of transfer and exchanges,
the Company shall issue and the Trustee shall authenticate Notes at the
Registrar's request, subject to such rules as the Trustee may reasonably
require.
(e) CANCELLATION AND/OR ADJUSTMENT OF THE GLOBAL NOTE. At such
time as all beneficial interests in the Global Note have either been exchanged
for Definitive Notes, redeemed, repurchased or canceled, the Global Note shall
be returned to or retained and canceled by the Trustee. At any time prior to
such cancellation, if any beneficial interest in the Global Note is exchanged
for Definitive Notes, redeemed, repurchased or canceled, the aggregate principal
amount of Notes represented by such Global Note shall be reduced accordingly,
and an endorsement shall be made on such Global Note by the Trustee to reflect
such reduction.
(f) GENERAL PROVISIONS RELATING TO TRANSFERS AND EXCHANGES. To
permit registrations of transfers and exchanges effected in accordance with this
Indenture, the Company shall execute and the Trustee shall authenticate the
Global Note and any Definitive Notes at the Registrar's request. The Global Note
and any Definitive Notes issued upon any registration of transfer or exchange of
beneficial interests in the Global Note or the Definitive Notes shall be legal,
valid and binding obligations of the Company, evidencing the same debt, and
entitled to the same benefits under this Indenture, as the Definitive Notes or
Global Notes surrendered upon such registration of transfer or exchange.
Neither the Company nor the Registrar shall be required to (a)
issue, register the transfer of or exchange Notes during a period beginning at
the opening of business on a Business Day 15 days before the day of mailing of
any notice of redemption of Notes under Section 9.06 hereof and ending at the
close of business on the day of such mailing or (b) register the transfer of or
exchange any Note so selected for redemption in whole or in part, except the
unredeemed portion of any Note being redeemed in part.
19
No service fee shall be charged to any Holder of a Note for
any registration of transfer or exchange (except as otherwise expressly
permitted herein), but the Company may require payment of a sum sufficient to
cover any transfer tax or similar governmental charge payable in connection
therewith (other than such transfer tax or similar governmental charge payable
upon exchanges pursuant to Sections 2.09, 2.10, 8.06 or 9.09 hereof, which shall
be paid by the Company).
Prior to due presentment to the Trustee for registration of
the transfer of any Note, the Trustee, any Agent and the Company may deem and
treat the Person in whose name any Note is registered as the absolute owner of
such Note for the purpose of receiving payment of principal of and interest on
such Note and for all other purposes whatsoever, whether or not such Note is
overdue, and none of the Trustee, any Agent or the Company shall be affected by
notice to the contrary.
The Trustee shall authenticate Global Notes and Definitive
Notes in accordance with the provisions of Section 2.03 hereof.
All certifications, certificates and Opinions of Counsel
required to be submitted to the Registrar pursuant to this Section 2.07 to
effect a registration of transfer or exchange may be submitted by facsimile.
The Trustee is hereby authorized to enter into a letter of
representation with the Depositary in the form provided by the Company and to
act in accordance with such letter.
(g) GENERAL PROVISIONS RELATING TO GLOBAL NOTES.
Notwithstanding any other provision in this Indenture, no Global Note may be
transferred to, or registered or exchanged for Notes registered in the name of,
any Person other than the Depositary for such Global Note or any nominee
thereof, and no such transfer may be registered, unless (i) such Depositary (A)
notifies the Company that it is unwilling or unable to continue as Depositary
for such Global Note or (B) ceases to be a clearing agency registered under the
Exchange Act, (ii) the Company delivers to the Trustee an Officers' Certificate
stating that such Global Note shall be so transferable, registrable, and
exchangeable, and such transfers shall be registrable, or (iii) upon the request
of a Holder if there shall have occurred and be continuing an Event of Default
with respect to the Notes evidenced by such Global Note. Notwithstanding any
other provision in this Indenture, a Global Note to which the restriction set
forth in the preceding sentence shall have ceased to apply may be transferred
only to, and may be registered and exchanged for Notes registered only in the
name or names of, such Person or Persons as the Depositary for such Global Note
shall have directed, and no transfer thereof other than such a transfer may be
registered. Every Note authenticated and delivered upon registration of transfer
of, or in exchange for or in lieu of, a Global Note to which the restriction set
forth in the first sentence of this paragraph shall apply, whether pursuant to
this Section 2.07 or otherwise, shall be authenticated and delivered in the form
of, and shall be, a Global Note.
SECTION 2.08. LEGENDS.
The following legend shall appear on the face of all Global
Notes issued under this Indenture:
"THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE
INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE
BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY
CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY
BE REQUIRED PURSUANT TO SECTION 2.07 OF THE INDENTURE, (II) THIS GLOBAL NOTE MAY
BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.07 OF THE INDENTURE,
(III) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT
TO SECTION 2.13 OF THE INDENTURE AND (IV) THIS GLOBAL NOTE MAY BE TRANSFERRED TO
A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE COMPANY.
20
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES
IN DEFINITIVE FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE
DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO
THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY
SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR
DEPOSITARY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY (55 XXXXX XXXXXX, XXX XXXX, XXX XXXX) ("XXX"),
TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT,
AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER
NAME AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
IS MADE TO CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE 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."
SECTION 2.09. TEMPORARY NOTES.
Pending the preparation of Definitive Notes, the Company may
execute, and upon receipt of a Company Order the Trustee shall authenticate and
deliver, temporary Definitive Notes which shall be substantially in the form of
Definitive Notes in lieu of which they are issued and with such appropriate
insertions, omissions, substitutions and other variations as the officers
executing such Notes may determine, as evidenced by their execution of such
Notes.
If temporary Notes are issued, the Company will cause
Definitive Notes to be prepared without unreasonable delay. After the
preparation of Definitive Notes, the temporary Notes shall be exchangeable for
Definitive Notes upon surrender of the temporary Notes at any office or agency
of the Company designated pursuant to Section 10.02, without charge to the
Holder. Upon surrender for cancellation of any one or more temporary Notes, the
Company shall execute and the Trustee shall authenticate and deliver in exchange
therefor a like principal amount of Definitive Notes of authorized
denominations. Until so exchanged the temporary Notes shall in all respects be
entitled to the same benefits under this Indenture as Definitive Notes.
SECTION 2.10. MUTILATED, DESTROYED, LOST AND STOLEN NOTES.
If any mutilated Note is surrendered to the Trustee, the
Company shall execute and the Trustee shall authenticate and deliver in exchange
therefor a new Note of like tenor and principal amount and bearing a certificate
number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any Note and
(ii) such security or indemnity as may be required by them to save each of them
and any agent of either of them harmless, then, in the absence of notice to the
Company or the Trustee that such Note has been acquired by a bona fide
purchaser, the Company shall execute and the Trustee shall authenticate and
deliver, in lieu of any such destroyed, lost or stolen Note, a new Note of like
tenor and principal amount and bearing a number not contemporaneously
outstanding.
In case any such mutilated, destroyed, lost or stolen Note has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Note, pay such Note.
Upon the issuance of any new Note under this Section, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
21
Every new Note issued pursuant to this Section in lieu of any
mutilated, destroyed, lost or stolen Note shall constitute an original
additional contractual obligation of the Company, whether or not the mutilated,
destroyed, lost or stolen Note shall be at any time enforceable by anyone, and
shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Notes duly issued hereunder.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Notes.
SECTION 2.11. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.
On or before any Interest Payment Date, the Company shall
deposit with the Trustee or with a Paying Agent (or, if the Company is acting as
its own Paying Agent, segregate and hold in trust as provided in Section 10.03)
an amount of money sufficient to pay the interest on all the Notes that is to be
paid on such Interest Payment Date. Interest on any Note 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 Note is registered at the close of
business on the Regular Record Date for such interest.
Any interest on any Note which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date (herein
called "DEFAULTED INTEREST") shall forthwith cease to be payable to the Holder
on the relevant Regular Record Date by virtue of having been such Holder, and
such Defaulted Interest shall be paid by the Company to the Persons in whose
names the Notes (or their respective predecessor Notes) are registered at the
close of business on a Special Record Date for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The Company shall notify
the Trustee in writing of the amount of Defaulted Interest proposed to be paid
on each Note and the date of the proposed payment (which date shall be a date
which will enable the Trustee to comply with the provisions of the immediately
following sentence), and at the same time the Company shall deposit with the
Trustee an amount of money equal to the aggregate amount proposed to be paid in
respect of such Defaulted Interest or shall make arrangements satisfactory to
the Trustee for such deposit prior to the date of the proposed payment, such
money when deposited to be held in trust for the benefit of the Persons entitled
to such Defaulted Interest as provided herein. 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 Note 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 so mailed, such Defaulted
Interest shall be paid to the Persons in whose names the Notes (or their
respective predecessor Notes) are registered at the close of business on such
Special Record Date. Subject to the foregoing provisions of this Section, each
Note delivered under this Indenture upon registration of transfer of, or in
exchange for or in lieu of, any other Note shall carry the rights to interest
accrued and unpaid, and to accrue, which were carried by such other Note.
SECTION 2.12. PERSONS DEEMED OWNERS.
Prior to due presentment of a Note for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name such Note is registered as the owner of such
Note for the purpose of receiving payment of principal of and (subject to
Section 2.11) interest on such Note and for all other purposes whatever, whether
or not such Note be overdue, and neither the Company nor the Trustee shall be
affected by notice to the contrary.
SECTION 2.13. CANCELLATION.
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All Notes surrendered for payment, redemption, registration of
transfer or exchange shall, if surrendered to any Person other than the Trustee,
be delivered to the Trustee and shall be promptly canceled by it. The Company
may at any time deliver to the Trustee for cancellation any Notes previously
authenticated and delivered hereunder which the Company may have acquired in any
manner whatsoever, and all Notes so delivered shall be promptly canceled by the
Trustee. No Notes shall be authenticated in lieu of or in exchange for any Notes
canceled as provided in this Section, except as expressly permitted by this
Indenture. All canceled Notes held by the Trustee shall, unless the Trustee is
otherwise directed by a Company Order or by applicable law, be destroyed by the
Trustee, and certification of such destruction shall be delivered by the Trustee
to the Company promptly following any such destruction.
SECTION 2.14. CUSIP NUMBERS.
Pursuant to a recommendation promulgated by the Committee on
Uniform Security Identification Procedures ("CUSIP"), the Company may cause
CUSIP numbers to be printed on the Notes and may direct the Trustee to use CUSIP
numbers in notices of redemption as a convenience to Holders of Notes. No
representation is made as to the accuracy of the CUSIP numbers either as printed
on the Notes or as contained in any notice of redemption and reliance may be
placed only on the other identification numbers placed thereon. The Company will
promptly notify the Trustee of any change in the CUSIP numbers.
ARTICLE III
SATISFACTION AND DISCHARGE
SECTION 3.01. SATISFACTION AND DISCHARGE OF INDENTURE.
Upon the written request of the Company, this Indenture will
cease to be of further effect, and the Trustee, at the expense of the Company,
will execute proper instruments acknowledging satisfaction and discharge of this
Indenture, when:
(1) either
(a) all the Notes theretofore authenticated and delivered
(other than (i) Notes which have been mutilated, destroyed, lost or stolen and
which have been replaced or paid as provided in Section 2.10) have been
delivered to the Trustee for cancellation; or
(b) all Notes not theretofore delivered to the Trustee for
cancellation have come due and payable, by reason of the making of a notice of
redemption or will otherwise become due and payable within one year and the
Company has irrevocably deposited or caused to be deposited with the Trustee
funds in trust for the purpose in an amount sufficient to pay and discharge the
entire Indebtedness on such Notes not theretofore delivered to the Trustee for
cancellation, for principal and interest to the date of such deposit (in the
case of Notes which have become due and payable) or to the Stated Maturity or
Redemption Date, as the case may be;
(2) no Default or Event of Default shall have
occurred and be continuing on the date of such deposit or shall occur
as a result of such deposit, and such deposit will not result in a
breach or violation of, or constitute a default under, any other
instrument to which the Company is a party or by which the Company is
bound;
(3) the Company has paid or caused to be paid all
other sums payable hereunder by the Company;
(4) the Company has delivered irrevocable
instructions to the Trustee under this Indenture to apply the deposited
money and/or non-callable Government Securities toward the payment of
the Notes at maturity or the redemption date, as the case may be; and
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(5) the Company has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent herein provided for relating to the satisfaction
and discharge of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this
Indenture, the obligations of the Company to the Trustee under Section 5.07 and,
the obligations of the Trustee under Section 3.02 and the last paragraph of
Section 10.03 shall survive.
SECTION 3.02. APPLICATION OF TRUST MONEY.
Subject to the provisions of the last paragraph of Section
10.03, all money and Government Securities (including the proceeds thereof)
deposited with the Trustee pursuant to Section 3.01 hereof in respect of the
Outstanding Notes shall be held in trust and applied by it, in accordance with
the provisions of the Notes and this Indenture, to the payment, either directly
or through any Paying Agent (including the Company acting as its own Paying
Agent) as the Trustee may determine, to the Persons entitled thereto, of the
principal and interest for whose payment such money has been deposited with the
Trustee.
ARTICLE IV
REMEDIES
SECTION 4.01. 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 voluntary or involuntary or be effected by operation of law or pursuant
to any judgment, decree or order of any court or any order, rule or regulation
of any Governmental Authority):
(a) default in the payment of any interest on any Note when it
becomes due and payable and such default continues for a period of 5 days;
(b) default in the payment of the principal of any Note at its
Maturity (including pursuant to Section 9.02 hereof);
(c) the Parent or any of the Subsidiaries shall fail to
observe or perform any covenant, condition or agreement contained in Sections
10.07, 10.08, 10.09, 10.10, 10.11, 10.12, 10.13, 10.14, 10.15, 10.16, 10.19,
10.20, 10.21, 10.22, 10.23, 10.24 or 10.25, or any Note Party shall fail to
observe or perform any covenant, condition or agreement contained in the
Security Documents to the extent it is a party thereto;
(d) any Note Party shall fail to observe or perform any
covenant, condition or agreement contained in any Note Document to which it is a
party (other than those specified in clause (a), (b) or (d) of this Section
4.01), and such failure shall continue unremedied for 30 days after the earlier
of the date on which (A) a Responsible Officer of the Parent becomes aware of
such failure or (B) written notice thereof shall have been given to the Parent
by the Trustee or the Majority Noteholders;
(e) (i) any Note Party shall breach in any material respect
any representation or warranty or agreement in any of the Security Documents or
in any certificates delivered in connection therewith; (ii) the repudiation by
any of them of any of their obligations under any of the Security Documents;
(iii) the unenforceability of the Security Documents against any of them for any
reason which shall continue unremedied for 30 days after the earlier of the date
on which (A) a Responsible Officer of the Parent becomes aware of such failure
or (B) written notice thereof shall have been given to the Parent by the Trustee
or the Majority Noteholders; or (iv) the loss of the perfection or priority of
the Liens granted by any of them pursuant to the Security Documents for any
reason;
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(f) the Parent or any of the Subsidiaries shall fail to make
any payment (whether of principal or interest and regardless of amount) in
respect of any Material Obligations, when and as the same shall become due and
payable (after giving effect to any applicable grace period);
(g) any event or condition occurs that results in any Material
Obligations becoming due prior to their scheduled maturity or payment date, or
that enables or permits (with or without the giving of notice, the lapse of time
or both) the holder or holders of any Material Obligations or any trustee or
agent on its or their behalf to cause any Material Obligations to become due
prior to their scheduled maturity or payment date or to require the prepayment,
repurchase, redemption or defeasance thereof, prior to their scheduled maturity
or payment date (in each case after giving effect to any applicable cure
period); provided that this clause (g) shall not apply to secured Indebtedness
that becomes due solely as a result of the voluntary sale or transfer of the
property or assets securing such Indebtedness;
(h) an involuntary proceeding shall be commenced or an
involuntary petition shall be filed seeking (i) liquidation, reorganization or
other relief in respect of the Parent or any of the Subsidiaries, or any of
their debts, or of a substantial part of any of their assets, under any Federal,
state or foreign bankruptcy, insolvency, receivership or similar law now or
hereafter in effect or (ii) the appointment of a receiver, trustee, custodian,
sequestrator, conservator or similar official for the Parent or any of the
Subsidiaries or for a substantial part of any of their assets, and, in any such
case, such proceeding or petition shall continue undismissed for 30 days or an
order or decree approving or ordering any of the foregoing shall be entered;
(i) the Parent or any of the Subsidiaries shall (i)
voluntarily commence any proceeding or file any petition seeking liquidation,
reorganization or other relief under any Federal, state or foreign bankruptcy,
insolvency, receivership or similar law now or hereafter in effect, (ii) consent
to the institution of, or fail to contest in a timely and appropriate manner,
any proceeding or petition described in clause (h) of this Section 4.01, (iii)
apply for or consent to the appointment of a receiver, trustee, custodian,
sequestrator, conservator or similar official for the Parent or any of the
Subsidiaries or for a substantial part of any of their assets, (iv) file an
answer admitting the material allegations of a petition filed against it in any
such proceeding, (v) make a general assignment for the benefit of creditors or
(vi) take any action for the purpose of effecting any of the foregoing;
(j) one or more judgments for the payment of money in an
aggregate amount in excess of $1,000,000 shall be rendered against the Parent or
any of the Subsidiaries or any combination thereof (which shall not be fully
covered by insurance without taking into account any applicable deductibles) and
the same shall remain undischarged or unbonded for a period of 30 consecutive
days during which execution shall not be effectively stayed;
(k) any Note Document shall cease, for any reason, to be in
full force and effect, or any Note Party shall so assert in writing or shall
disavow any of its obligations thereunder; or
(l) an Event of Default under and as defined in the Junior
Indenture or any Credit Agreement shall have occurred.
SECTION 4.02. ACCELERATION OF MATURITY; EXERCISE OF REMEDIES.
If an Event of Default (other than an Event of Default
described in clause (h) or (i) of Section 4.01), shall have occurred and be
continuing, the Trustee or the Majority Noteholders may, by notice to the
Company, declare the Notes then outstanding to be due and payable in whole (or
in part, in which case any principal not so declared to be due and payable may
thereafter be declared to be due and payable), and thereupon the principal of
the Notes so declared to be due and payable, together with accrued interest
thereon and all fees and other obligations of each Note Party accrued under the
Note Documents, shall become due and payable immediately, without presentment,
demand, protest or other notice of any kind, all of which are hereby waived by
the Company. In case of any Event of Default described in clause (h) or (i) of
Section 4.01, the principal of the Notes then outstanding, together with accrued
interest thereon
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and all fees and other obligations of each Note Party accrued under the Note
Documents, shall automatically become due and payable, without presentment,
demand, protest or other notice of any kind, all of which are hereby waived by
the Company; provided, however, that so long as any Senior Debt is outstanding,
the acceleration shall not be effective until the earlier of (i) an acceleration
of any Senior Debt or (ii) five Business Days after receipt by the Company of
written notice of the acceleration of the Notes.
The Holders of the Notes shall not have the independent right
to direct the time, method or place of conducting any remedy available to the
Trustee or exercising any trust or power conferred upon the Trustee or, on
behalf of all Holders of Notes, to consent to the waiver of any past Default or
Event of Default or its consequences. All decisions regarding the declaration of
an Event of Default, the acceleration of the Notes, the waiver of any Defaults
and Events of Default, and the direction of the Collateral Agent and the Trustee
with respect to the exercise of rights and remedies against the Company, the
Guarantors and the Collateral shall be made by the Majority Noteholders. These
limitations do not apply to a suit instituted by a Holder of a Note for
enforcement of payment of any amounts then due as an unsecured claimant.
SECTION 4.03. WAIVER OF PAST DEFAULTS.
The Majority Noteholders by notice to the Trustee may, on
behalf of the Holders of all the Notes, waive an existing Default or Event of
Default and its consequences hereunder, except:
(1) an uncured default in the payment of principal or
interest on any Note, or
(2) a default in respect of a covenant or provision
hereof which under Article VIII cannot be modified or amended without
the consent of the Holder of each Outstanding Note affected thereby;
provided, however, that after any acceleration, but before a judgment or decree
based on acceleration is obtained by the Trustee, the Majority Noteholders may
rescind and annul such acceleration if all Events of Default, other than the
nonpayment of accelerated principal, premium or interest, have been cured or
waived as provided in this Indenture. 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 any right consequent
thereon.
SECTION 4.04. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY
TRUSTEE.
Subject at all times to the provisions of Section 4.02, the
Company covenants that if an Event of Default specified in clauses (a) or (b) of
Section 4.01 occurs and is continuing, the Company will, upon demand of the
Trustee, pay to it, for the benefit of the Holders of such Notes, the whole
amount then due and payable on such Notes for principal and interest and, to the
extent that payment of such interest shall be legally enforceable, interest on
any overdue principal and on any overdue interest at the rate borne by the
Notes, and, in addition thereto, such further amount as shall be sufficient to
cover the costs and expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel.
Subject at all times to the provisions of Section 4.02, if an
Event of Default occurs and is continuing, the Trustee may in its discretion
proceed to protect and enforce its rights and the rights of the Holders by such
appropriate judicial proceedings as the Trustee shall deem most effectual to
protect and enforce any such rights, whether for the specific enforcement of any
covenant or agreement in this Indenture or in aid of the exercise of any power
granted herein, or to enforce any other proper remedy.
SECTION 4.05. TRUSTEE MAY FILE PROOFS OF CLAIM.
The Trustee is authorized to file such proofs of claim and
other papers or documents as may be necessary or advisable in order to have the
claims of the Trustee (including any claim for the
26
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel) and the Holders allowed in any judicial proceedings
relative to the Company (or any other obligor upon the Notes), its creditors or
its property and shall be entitled and empowered to participate as a member,
voting or otherwise, of any official committee of creditors appointed in such
matter and shall be entitled and empowered to collect, receive and distribute
any money or other property payable or deliverable on any such claims, 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 to 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 5.07 hereof. To the extent that the
payment of any such compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 5.07 hereof out of the estate in any such proceeding, shall be denied
for any reason, payment of the same shall be secured by a Lien on, and shall be
paid out of, any and all distributions, dividends, money, securities and other
properties that the Holders may be entitled to receive in such proceeding
whether in liquidation or under any plan of reorganization or arrangement or
otherwise. Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Notes or
the rights of any Holder, or to authorize the Trustee to vote in respect of the
claim of any Holder in any such proceeding.
SECTION 4.06. APPLICATION OF MONEY COLLECTED.
Subject to the provisions of the Security Documents, any money
collected by the Trustee pursuant to this Article shall be applied in the
following order, at the date or dates fixed by the Trustee and, in case of the
distribution of such money, on account of principal or interest upon
presentation of the Notes and the notation thereon of the payment if only
partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under
Section 5.07;
SECOND: To the payment of the amounts then due and unpaid for
principal of and interest on the Notes 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 Notes for principal and
interest respectively; and
THIRD: To the payment of the remainder, if any, to the
Company, its successors or assigns or to whomsoever may be
lawfully entitled to receive the same or as a court of
competent jurisdiction may direct.
SECTION 4.07. LIMITATION ON SUITS.
Subject to Section 4.08, no Holder of any Note shall have any
right to institute any proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver or trustee, or to foreclose or
take any other action with respect to the Collateral or under any Security
Document or for any other remedy hereunder, under any Security Document unless:
(a) such Holder has previously given to the Trustee
written notice of a continuing Event of Default, and
(b) the Majority Noteholders have made a written
request and offered reasonable indemnity to the Trustee to institute
such proceeding as trustee.
The preceding limitations do not apply to a suit instituted by
a Holder for enforcement of payment of the principal of, and premium, if any, or
interest on, a Note on or after the respective due dates expressed in such Note.
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A Holder may not use this Indenture to affect, disturb or
prejudice the rights of another Holder or to obtain a preference or priority
over another Holder.
SECTION 4.08. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL, PREMIUM
AND INTEREST.
Notwithstanding any other provision in this Indenture, the
Holder of any Note shall have the right, which is absolute and unconditional, to
receive payment of the principal of and (subject to Section 2.11) interest on
such Note on the respective Stated Maturities expressed in such Note (in the
case of redemption, on the Redemption Date) and to institute suit as an
unsecured claimant for the enforcement of any such payment, and such rights
shall not be impaired without the consent of such Holder.
SECTION 4.09. RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders shall
be restored severally and respectively to their former positions hereunder, and
thereafter all rights and remedies of the Trustee and the Holders shall continue
as though no such proceeding had been instituted.
SECTION 4.10. RIGHTS AND REMEDIES CUMULATIVE.
Subject to the provisions of Section 4.02 and except as
otherwise provided with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Notes in the last paragraph of Section 2.10, 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 4.11. DELAY OR OMISSION NOT WAIVER.
No delay or omission of the Trustee or of any Holder of any
Note to exercise any right or remedy accruing upon any Event of Default shall
impair any such right or remedy or constitute a waiver of any such Event of
Default or an acquiescence therein. Subject to the provisions of Section 4.02,
every right and remedy given by this Article or by law to the Trustee or to the
Holders may be exercised from time to time, and as often as may be deemed
expedient, by the Trustee or by the Holders, as the case may be.
SECTION 4.12. CONTROL BY MAJORITY NOTEHOLDERS.
The Majority Noteholders shall have the right to direct the
time, method and place of conducting any proceeding for exercising any remedy
available to the Trustee or exercising any trust or power conferred on the
Trustee; provided that
(1) such direction shall not be in conflict with the
Trust Indenture Act or any rule of law or with this Indenture, and
(2) the Trustee may take any other action deemed
proper by the Trustee which is not inconsistent with such direction or
the Trust Indenture Act.
SECTION 4.13. UNDERTAKING FOR COSTS.
In any suit for the enforcement of any right or remedy under
this Indenture, or in any suit against the Trustee for any action taken,
suffered or omitted by it as Trustee, a court may require any party litigant in
such suit to file an undertaking to pay the costs of such suit (including
reasonable attorney's fees
28
and expenses), and may assess costs against any such party litigant, in the
manner and to the extent provided in the Trust Indenture Act; provided that
neither this Section nor the Trust Indenture Act shall be deemed to authorize
any court to require such an undertaking or to make such an assessment in any
suit instituted by the Trustee or the Company.
SECTION 4.14. WAIVER OF STAY OR EXTENSION LAWS.
The Company covenants (to the extent that it may lawfully do
so) that it will not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay or extension law
wherever enacted, now or at any time hereafter in force, which may affect the
covenants or the performance of this Indenture; and the Company (to the extent
that it may lawfully do so) hereby expressly waives all benefit or advantage of
any such law and covenants that it will not hinder, delay or impede the
execution of any power herein granted to the Trustee, but will suffer and permit
the execution of every such power as though no such law had been enacted.
ARTICLE V
THE TRUSTEE
SECTION 5.01. CERTAIN DUTIES AND RESPONSIBILITIES.
The Trustee need perform only those duties that are
specifically set forth in this Indenture and no others. The duties and
responsibilities of the Trustee shall be as provided by the Trust Indenture Act.
Notwithstanding the foregoing, 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 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. Whether or not herein expressly so
provided, every provision of this Indenture relating to the conduct or affecting
the liability of or affording protection to the Trustee shall be subject to the
provisions of this Section.
SECTION 5.02. NOTICE OF DEFAULTS.
If a Default or an Event of Default occurs and is continuing
and is known to the Trustee, the Trustee shall mail to each Holder of the Notes
notice of the Default or Event of Default within 30 days after the occurrence
thereof, or, if later, promptly upon the Trustee obtaining knowledge thereof.
Except in the case of a Default or an Event of Default in payment of principal
of or interest on any Notes, the Trustee may withhold the notice to the Holders
of such Notes if its Board of Directors, executive committee or a committee of
its trust officers in good faith determines that withholding the notice is in
the interest of the Holders of the Notes.
SECTION 5.03. CERTAIN RIGHTS OF TRUSTEE.
Subject to the provisions of Section 5.01:
(1) the Trustee may rely and shall be protected in
acting or refraining from acting in reliance upon any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document believed by it to be genuine
and to have been signed or presented by the proper party or parties;
(2) any request or direction of the Company mentioned
herein shall be sufficiently evidenced by a Company Request or Company
Order, and any resolution of the Board of Directors may be sufficiently
evidenced by a Board Resolution;
29
(3) whenever in the administration of this Indenture
the Trustee shall deem it desirable that a matter be proved or
established prior to taking, suffering or omitting any action
hereunder, the Trustee (unless other evidence be herein specifically
prescribed) may, in the absence of bad faith on its part, request from
the Company and rely upon an Officers' Certificate and/or an Opinion of
Counsel;
(4) the Trustee may consult with counsel of its
selection, and the advice of such counsel or any Opinion of Counsel
shall be full and complete authorization and protection in respect of
any action taken, suffered or omitted by it hereunder in good faith and
in reliance thereon;
(5) the Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Indenture at
the request or direction of any of the Majority Noteholders pursuant to
this Indenture, unless the Majority Noteholders or the Holders shall
have offered to the Trustee reasonable security or joint and several
indemnity against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction;
(6) the Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document, but the Trustee, in its
discretion, may make such further inquiry or investigation into such
facts or matters as it may see fit;
(7) the Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or by
or through agents or attorneys, and the Trustee shall not be
responsible for any misconduct or negligence on the part of any agent
or attorney appointed with due care by it hereunder;
(8) the Trustee shall not be liable for any action
taken, suffered or omitted to be taken by it in good faith in
accordance with a direction received by it pursuant to Section 4.12 and
reasonably believed by it to be authorized or within the discretion or
rights or powers conferred upon it by this Indenture; and
(9) except with respect to Section 10.01, the Trustee
shall have no duty to inquire as to the performance of the Company with
respect to the covenants contained in Article X. In addition, the
Trustee shall not be deemed to have knowledge of an Event of Default
except (i) any Default or Event of Default occurring pursuant to
Sections 4.01(a) or 4.01(b) or (ii) any Default or Event of Default of
which the Trustee shall have received written notification or obtained
actual knowledge.
SECTION 5.04. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF NOTES.
The recitals contained herein and in the Notes, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Company, and the Trustee assumes no responsibility for their correctness.
The Trustee makes no representations as to the validity or sufficiency of this
Indenture or of the Notes. The Trustee shall not be accountable for the use or
application by the Company of the Notes or the proceeds thereof.
SECTION 5.05. MAY HOLD NOTES.
The Trustee, any Paying Agent, any Note Registrar or any other
agent of the Company, in its individual or any other capacity, may become the
owner or pledgee of Notes and, subject to Sections 5.08 and 5.13, may otherwise
deal with the Company with the same rights it would have if it were not Trustee,
Paying Agent, Note Registrar or such other agent.
30
SECTION 5.06. MONEY HELD IN TRUST.
Money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required by law. The Trustee
shall be under no liability for interest on any money received by it hereunder
except as otherwise agreed in writing with the Company.
SECTION 5.07. COMPENSATION AND REIMBURSEMENT.
The Company agrees:
(1) to pay to the Trustee from time to time such
compensation as the Company and the Trustee shall from time to time
agree in writing for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the
reasonable compensation and the expenses and disbursements of its
agents and counsel (including local legal counsel) and if an Event of
Default occurs and is continuing, auditors, accountants, appraisers,
printers, insurance and environmental advisors, financial advisors and
other consultants and agents), except any such expense, disbursement or
advance as may be attributable to its gross negligence or willful
misconduct; and
(3) to indemnify each of the Trustee, its employees,
officers, directors and agents or any predecessor Trustee for, and to
hold it harmless against, any and all loss, liability, damage, claim or
expense incurred without gross negligence or willful misconduct on its
part, arising out of or in connection with the acceptance or
administration of this trust, including the costs and expenses of
defending itself against any claim or liability in connection with the
exercise or performance of any of its powers or duties hereunder.
All such payments and reimbursements shall be made with
interest at the rate borne by the Notes.
As security for the performance of the obligations of the
Company under this Section the Trustee shall have a Lien prior to the Notes upon
all property and funds held or collected by the Trustee as such, except funds
held in trust for the benefit of the Holders of particular Notes.
The Company's obligations under this Section 5.07 and any Lien
arising hereunder shall survive the resignation or removal of any Trustee, the
discharge of the Company's obligations pursuant to this Indenture and/or the
termination of this Indenture.
SECTION 5.08. DISQUALIFICATION; CONFLICTING INTERESTS.
If the Trustee has or shall acquire a conflicting interest
within the meaning of the Trust Indenture Act, the Trustee shall either
eliminate such interest or resign, to the extent and in the manner provided by,
and subject to the provisions of, the Trust Indenture Act and this Indenture.
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SECTION 5.09. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.
There shall at all times be a Trustee hereunder which shall be
a Person that is eligible pursuant to the Trust Indenture Act to act as such and
has a combined capital and surplus of (a) at least $25,000,000 and be a member
of a bank holding company that has a combined capital and surplus of at least
$100,000,000 or (b) at least $50,000,000. If such Person publishes reports of
condition at least annually, pursuant to law or to the requirements of any
supervising or examining authority, then for the purposes of this Section, the
combined capital and surplus of such Person shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time the Trustee shall cease to be eligible in accordance
with the provisions of this Section, it shall resign immediately in the manner
and with the effect hereinafter specified in this Article.
SECTION 5.10. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(a) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article shall become
effective until the acceptance of appointment by the successor Trustee under
Section 5.11. If an instrument of acceptance by a successor Trustee shall not
have been delivered to the Trustee within 30 days after the giving of such
notice of resignation or removal, the Trustee resigning or being removed may
petition any court of competent jurisdiction for the appointment of a successor
Trustee.
(b) The Trustee may resign at any time by giving written
notice thereof to the Company.
(c) The Majority Noteholders may remove the Trustee by so
notifying the Trustee and the Company in writing.
(d) If at any time:
(1) the Trustee shall fail to comply with
Section 5.08 after written request therefor by the Company or by any
Holder who has been a bona fide Holder of a Note for at least six
months,
(2) the Trustee shall cease to be eligible under
Section 5.09 and shall fail to resign after written request therefor by
the Company or by any such Holder, or
(3) the Trustee shall become incapable of acting
or shall be adjudged bankrupt or insolvent or a receiver of the Trustee
or of its property shall be appointed or any public officer shall take
charge or control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee, or (ii) subject to Section 4.13, any Holder who has been a bona fide
Holder of a Note for at least six months may, on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor Trustee.
(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of Trustee for
any cause, the Company, by a Board Resolution, shall promptly appoint a
successor Trustee. If, within one year after such resignation, removal or
incapability, or the occurrence of such vacancy, the Majority Noteholders
appoint a successor Trustee, the successor Trustee so appointed shall, forthwith
upon its acceptance of such appointment, become the successor Trustee and
supersede the successor Trustee appointed by the Company. If no successor
Trustee shall have been so appointed by the Company or the Holders and shall
have accepted appointment in the manner hereinafter provided, any Holder who has
been a bona fide Holder of a Note for at least six months may, on behalf of
himself and all others similarly situated, petition any court of competent
jurisdiction for the appointment of a successor Trustee.
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(f) The Company shall give notice of each resignation and each
removal of the Trustee and each appointment of a successor Trustee to all
Holders in the manner provided in Section 14.02. Each notice shall include the
name of the successor Trustee and the address of its Corporate Trust Office.
SECTION 5.11. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
Every successor Trustee appointed hereunder shall execute,
acknowledge and deliver to the Company and to the retiring Trustee an instrument
accepting such appointment, and thereupon the resignation or removal of the
retiring Trustee shall become effective and such successor Trustee, without any
further act, deed or conveyance, shall become vested with all the rights,
powers, trusts and duties of the retiring Trustee; but, on request of the
Company or the successor Trustee, such retiring Trustee shall, upon payment of
its charges, execute and deliver an instrument transferring to such successor
Trustee all the rights, powers and trusts of the retiring Trustee and shall duly
assign, transfer and deliver to such successor Trustee all property and money
held by such retiring Trustee hereunder, subject to its Lien provided for in
Section 5.07. Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts.
No successor Trustee shall accept its appointment unless at
the time of such acceptance such successor Trustee shall be qualified and
eligible under this Article.
SECTION 5.12. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS.
Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Trustee shall be a
party, or any corporation succeeding to all or substantially all the corporate
trust business of the Trustee, shall be the successor of the Trustee hereunder;
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Notes shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Notes so authenticated with the same effect
as if such successor Trustee had itself authenticated such Notes.
SECTION 5.13. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
If and when the Trustee shall be or become a creditor of the
Company (or any other obligor upon the Notes), the Trustee shall be subject to
the provisions of the Trust Indenture Act regarding the collection of claims
against the Company (or any such other obligor).
SECTION 5.14. APPOINTMENT OF CO-TRUSTEE.
It is the purpose of this Indenture that there shall be no
violation of any law of any jurisdiction, including particularly the law of the
State of New York, denying or restricting the right of banking corporations or
associations to transact business as Trustee in such jurisdiction. It is
recognized that in case of litigation under this Indenture, and in particular in
case of the enforcement on Default, or in case the Trustee deems that by reason
of any present or future law of any jurisdiction it may not exercise any of the
powers, rights or remedies herein granted to the Trustee or hold title to the
properties, in trust, as herein granted, or take any other action which may be
desirable or necessary in connection therewith, it may be necessary that the
Trustee appoint an additional individual or institution as a separate or
co-trustee. The following provisions of this Section 5.14 are adopted to these
ends.
In the event that the Trustee appoints an additional
individual or institution as a separate or co-trustee, each and every remedy,
power, right, claim, demand, cause of action, immunity, estate, title, interest
and Lien expressed or intended by this Indenture to be exercised by or vested in
or conveyed to the Trustee with respect thereto shall be exercisable by and
vested in such separate or co-trustee but only to the
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extent necessary to enable such separate or co-trustee to exercise such powers,
rights and remedies, and every covenant and obligation necessary to the exercise
thereof by such separate or co-trustee shall run to and be enforceable by such
separate or co-trustee.
Should any instrument in writing be required by the separate
trustee or co-trustee so appointed by the Trustee for more fully and certainly
vesting in and confirming to him or it such properties, rights, powers, trusts,
duties and obligations, any and all such instruments in writing shall, on
request, be executed, acknowledged and delivered by the Company. In case any
separate trustee or co-trustee, or a successor to either, shall die, become
incapable of acting, resign or be removed, all the estates, properties, rights,
powers, trusts, duties and obligations of such separate trustee or co-trustee,
so far as permitted by law, shall vest in and be exercised by the Trustee until
the appointment of a new trustee or successor to such separate trustee or
co-trustee.
ARTICLE VI
HOLDERS' LISTS AND REPORTS BY TRUSTEE
SECTION 6.01. COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF HOLDERS.
The Company will furnish or cause to be furnished to the
Trustee:
(a) semi-annually, not more than 5 Business Days
after each Regular Record Date, a list, in such form as the Trustee may
reasonably require, of the names and addresses of the Holders as of
such Regular Record Date, and
(b) at such other times as the Trustee may request in
writing, within 30 days after the receipt by the Company of any such
request, a list of similar form and content as of a date not more than
15 days prior to the time such list is furnished;
excluding from any such list names and addresses received by the Trustee in its
capacity as Registrar.
SECTION 6.02. PRESERVATION OF INFORMATION; COMMUNICATIONS TO HOLDERS.
(a) The Trustee shall preserve, in as current a form
as is reasonably practicable, the names and addresses of Holders
contained in the most recent list furnished to the Trustee as provided
in Section 6.01 and the names and addresses of Holders received by the
Trustee in its capacity as Registrar. The Trustee may destroy any list
furnished to it as provided in Section 6.01 upon receipt of a new list
so furnished.
(b) The rights of Holders to communicate with other
Holders with respect to their rights under this Indenture or under the
Notes, and the corresponding rights and duties of the Trustee, shall be
as provided by the Trust Indenture Act.
(c) Every Holder of Notes, by receiving and holding
the same, agrees with the Company and the Trustee that neither the
Company nor the Trustee nor any agent of either of them shall be held
accountable by reason of any disclosure of information as to names and
addresses of Holders made pursuant to the Trust Indenture Act.
SECTION 6.03. REPORTS BY TRUSTEE.
(a) The Trustee shall transmit to Holders such
reports concerning the Trustee and its actions under this Indenture as
may be required pursuant to the Trust Indenture Act at the times and in
the manner provided pursuant thereto. If required by Section 313(a) of
the Trust Indenture Act, the Trustee shall, within sixty days after
each May 15 following the date of this
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Indenture, deliver to Holders a brief report, dated as of such May 15,
which complies with the provision of such Section 313(a).
(b) A copy of each such report shall, at the time of
such transmission to Holders, be mailed to the Company and each stock
exchange upon which the Notes are listed in accordance with Section
313(d) of the Trust Indenture Act. The Company will promptly notify the
Trustee when the Notes are listed on or delisted from any securities
exchange.
ARTICLE VII
CONSOLIDATION, MERGER,
CONVEYANCE, TRANSFER OR LEASE
SECTION 7.01. CONSOLIDATION, ETC., ONLY ON CERTAIN TERMS.
The Company will not consolidate with or merge with or into
any other Person or convey, transfer or lease its properties and assets as an
entirety to any Person or Persons, and the Company will not permit any of its
subsidiaries to enter into any such transaction or series of transactions, if
such transaction or series of transactions, in the aggregate, would result in
the conveyance, transfer or lease of all or substantially all of the properties
and assets of the Company and its subsidiaries on a consolidated basis to any
Person, unless:
(a) such transaction is permitted by Article X hereof
or consented to by the Majority Noteholders; and
(b) either (i) the Company is the surviving
corporation or (ii) the Person (if other than the Company) formed by
such consolidation or into which the Company or such Subsidiary is
merged or the Person which acquires, by conveyance, transfer or lease,
the properties and assets of the Company or such Subsidiary, as the
case may be, substantially as an entirety (the "SURVIVING ENTITY") (A)
shall be a corporation, partnership, limited liability company or trust
organized and validly existing under the laws of the United States of
America, any state thereof or the District of Columbia and (B) shall
expressly assume, by a supplemental indenture executed and delivered to
the Trustee, in form satisfactory to the Trustee, the Company's
obligation for the due and punctual payment of the principal and
interest on all the Notes and the performance and observance of every
covenant of this Indenture on the part of the Company to be performed
or observed.
In connection with any such consolidation, merger, conveyance,
transfer or lease, the Company or the Surviving Entity shall have delivered to
the Trustee, in form and substance reasonably satisfactory to the Trustee, an
Officers' Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance, transfer or lease, and if a supplemental
indenture is required in connection with such transaction, such supplemental
indenture, comply with the requirements of this Section 7.01, and that all
conditions precedent herein provided for relating to such transaction have been
complied with.
SECTION 7.02. SUCCESSOR SUBSTITUTED.
Upon any transaction or series of transactions that are of the
type described in, and are effected in accordance with, conditions described in
Section 7.01, the Surviving Entity shall succeed to, and be substituted for, and
may exercise every right and power of, the Company under this Indenture with the
same effect as if such Surviving Entity had been named as the Company herein;
and when a Surviving Entity duly assumes all of the obligations and covenants of
the Company pursuant to this Indenture and the Notes, except in the case of a
lease, the predecessor Person shall be relieved of all such obligations.
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ARTICLE VIII
SUPPLEMENTAL INDENTURES
SECTION 8.01. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.
Without the consent of any Holders, the Company, when
authorized by a Board Resolution, and the Trustee, at any time and from time to
time, may enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following purposes:
(a) to evidence the succession of another Person to
the Company and the assumption by any such successor of the covenants
of the Company herein and in the Notes;
(b) to add to the covenants of the Company for the
benefit of the Holders, or to surrender any right or power herein
conferred upon the Company;
(c) to grant additional security for the Notes;
(d) to cure any ambiguity, to correct or supplement
any provision herein which may be inconsistent with any other provision
herein, 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 that such action
pursuant to this clause (d) shall not adversely affect the interests of
the Holders in any material respect;
(e) to name any Agent, Depositary or Registrar in
accordance with the terms hereof;
(f) to change the Trustee in accordance with the
terms hereof; or
(g) make any change to comply with any requirement of
the Commission in order to effect or maintain the qualification of this
Indenture under the TIA.
Upon the request of the Company accompanied by a Board
Resolution authorizing the execution of any such amended or supplemental
indenture, and upon receipt by the Trustee of the documents described in Section
5.03 hereof, the Trustee shall join with the Company in the execution of any
amended or supplemental indenture authorized or permitted by the terms of this
Indenture and to make any further appropriate agreements and stipulations that
may be therein contained, but the Trustee shall not be obligated to enter into
such amended or supplemental indenture that affects its own rights, duties or
immunities under this Indenture or otherwise.
SECTION 8.02. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS AND MAJORITY
NOTEHOLDERS.
With the consent of the Majority Noteholders, the Company,
when authorized by a Board Resolution, and the Trustee may enter into an
indenture or indentures supplemental hereto for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Indenture or of modifying in any manner the rights of the Holders under
this Indenture; provided, however, that without the consent of the Holder of
each Outstanding Note affected thereby, no such supplemental indenture shall:
(a) change the Stated Maturity of the principal of,
or any installment of interest on, any Note, or reduce the principal
amount thereof or the rate of interest (including default interest)
thereon or change the place of payment where, or the currency in which,
any Note or interest thereon is payable, or impair the right to
institute suit for the enforcement of any such payment after the Stated
Maturity thereof (or, in the case of redemption, on or after the
Redemption Date); or
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(b) (i) change any provision of any Note Document in
a manner that would alter the pro rata sharing of payments among the
Holders of the Notes, (ii) change any of the provisions of this Section
or the definition of the term "Majority Noteholders" or any other
provision hereof specifying the number or percentage of Holders
required to waive, amend or modify any rights hereunder or make any
determination or grant any consent under any Note Document or this
Indenture, (iii) release any Guarantor from its Guarantee (except as
expressly provided in Article XII hereof or the Security Documents), or
limit its liability in respect of such Guarantee, or (iv) release all
or substantially all of the Collateral from the Liens of the Note
Documents (except as expressly provided in the Security Documents or in
connection with a transaction permitted by Section 10.09 and 10.11
hereof).
Upon the request of the Company accompanied by a Board
Resolution authorizing the execution of any such amended or supplemental
indenture, and upon the filing with the Trustee of evidence satisfactory to the
Trustee of the consent of the Holders of Notes as aforesaid, and upon receipt by
the Trustee of the documents described in Section 5.03 hereof, the Trustee shall
join with the Company in the execution of such amended or supplemental indenture
unless such amended or supplemental indenture directly affects the Trustee's own
rights, duties or immunities under this Indenture or otherwise, in which case
the Trustee may in its discretion, but shall not be obligated to, enter into
such amended or supplemental indenture.
The Company may, but shall not be obligated to, fix a record
date for the purpose of determining the Persons entitled to consent to any
indenture supplemental hereto. If a record date is fixed, the Holders on such
record date, or their duly designated proxies, and only such Persons, shall be
entitled to consent to such supplemental indenture, whether or not such Holders
remain Holders after such record date; provided that unless such consent shall
have become effective by virtue of the requisite percentage having been obtained
prior to the date which is 90 days after such record date, any such consent
previously given shall automatically and without further action by any Holder be
cancelled and of no further effect.
It shall not be necessary for any consent by the Majority
Noteholders under this Section to approve the particular form of any proposed
supplemental indenture, but it shall be sufficient if such consent shall approve
the substance thereof.
After an amendment, supplement or waiver under this Section
becomes effective, the Company shall mail to the Holders at such Holder's
address appearing in the Note Register 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 amended or supplemental Indenture or waiver. Subject to
Sections 4.03 and 4.08 hereof, the Majority Noteholders may waive compliance in
a particular instance by the Company with any provision of this Indenture or the
Notes.
SECTION 8.03. EXECUTION OF SUPPLEMENTAL INDENTURES.
In executing, or accepting the additional trusts created by,
any supplemental indenture permitted by this Article or the modifications
thereby of the trusts created by this Indenture, the Trustee shall be entitled
to receive, and (subject to Section 5.01) shall be fully protected in relying
upon, an Officers' Certificate and an Opinion of Counsel stating that the
execution of such supplemental indenture is authorized or permitted by this
Indenture. The Trustee may, but shall not be obligated to, enter into any such
supplemental indenture which affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
SECTION 8.04. EFFECT OF SUPPLEMENTAL INDENTURES.
Upon the execution of any supplemental indenture under this
Article, this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture
37
for all purposes; and every Holder of Notes theretofore or thereafter
authenticated and delivered hereunder shall be bound thereby.
SECTION 8.05. CONFORMITY WITH TRUST INDENTURE ACT.
Every supplemental indenture executed pursuant to this Article
shall conform to the requirements of the Trust Indenture Act.
SECTION 8.06. REFERENCE IN NOTES TO SUPPLEMENTAL INDENTURES.
Notes authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall if required by
the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so determine,
new Notes so modified as to conform, in the opinion of the Trustee and the
Company, to any such supplemental indenture may be prepared and executed by the
Company and authenticated and delivered by the Trustee in exchange for
Outstanding Notes.
ARTICLE IX
REDEMPTION OF NOTES
SECTION 9.01. OPTIONAL REDEMPTION.
(a) The Notes will be redeemable at the election of the
Company, as a whole or from time to time in part, at any time on not less than
30 nor more than 60 days' prior notice, without premium or penalty, together
with accrued and unpaid interest, to the Redemption Date (subject to the right
of holders of record on relevant record dates to receive interest due on an
Interest Payment Date).
SECTION 9.02. MANDATORY REDEMPTION; MANDATORY PREPAYMENT; USE OF AVERAGE
EXCESS CASH.
(a) The Company shall redeem $15,000,000 of the Notes,
assuming such amount remains outstanding, on each Interest Payment Date.
(b) In the event and on each occasion that any Net Cash
Proceeds are received by or on behalf of the Company, on the next succeeding
Interest Payment Date, the Company shall redeem Notes in an amount equal to the
aggregate amount of such Net Cash Proceeds.
(c) On the date that is 10 days prior to each Interest Payment
Date, the Company shall calculate the Average Excess Cash. On each Interest
Payment Date, the Company shall redeem Notes in an amount equal to 100% of the
Average Excess Cash, if any.
(d) In connection with any mandatory redemption pursuant to
this Section 9.02, [ ] Business Days prior to the applicable Interest
Payment Date, the Company shall deliver to the Trustee a notice stating which
portion of the funds being delivered to the Trustee on such date constitute
ordinary interest payments and which portion constitutes the Redemption Price
for such mandatory redemption.
SECTION 9.03. APPLICABILITY OF ARTICLE.
Redemption of Notes at the election of the Company or
otherwise, as permitted or required by any provision of this Indenture, shall be
made in accordance with such provision and this Article.
SECTION 9.04. ELECTION TO REDEEM; NOTICE TO TRUSTEE.
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The election of the Company to redeem any Notes pursuant to
Section 9.01 shall be evidenced by a Board Resolution. In case of any redemption
at the election of the Company of the Outstanding Notes, the Company shall, at
least 60 days prior to the Redemption Date fixed by the Company (unless a
shorter notice shall be satisfactory to the Trustee), notify the Trustee in
writing of such Redemption Date and of the principal amount of Notes to be
redeemed.
SECTION 9.05. SELECTION BY TRUSTEE OF NOTES TO BE REDEEMED.
If less than all of the Notes are to be redeemed at any time,
selection of Notes for redemption will be made by the Trustee in compliance with
the requirements of the principal national securities exchange, if any, on which
the Notes are listed, or, if the Notes are not so listed, on a pro rata basis or
in accordance with the Applicable Procedures; provided that no Notes of $1,000
principal amount or less shall be redeemed in part.
The Trustee shall promptly notify the Company and each Note
Registrar in writing of the Notes selected for redemption and, in the case of
any Notes selected for partial redemption, the principal amount thereof to be
redeemed.
For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of Notes shall
relate, in the case of any Notes redeemed or to be redeemed only in part, to the
portion of the principal amount of such Notes which has been or is to be
redeemed.
SECTION 9.06. NOTICE OF REDEMPTION.
Notice of redemption shall be given by first-class mail,
postage prepaid, mailed not less than 30 nor more than 60 days prior to the
Redemption Date, to each Holder of Notes to be redeemed, at such Holder's
address appearing in the Note Register.
All notices of redemption shall identify the Notes to be
redeemed (including CUSIP numbers) and shall state:
(1) the Redemption Date,
(2) the Redemption Price, which shall, in each case,
be the principal amount of the Notes to be redeemed,
(3) if less than all the Outstanding Notes are to be
redeemed, the identification (and, in the case of partial redemption of
any Notes, the principal amounts) of the particular Notes to be
redeemed,
(4) that on the Redemption Date the Redemption Price
will become due and payable upon each such Note to be redeemed and
that, unless the Company defaults on the payment of the Redemption
Price, interest thereon will cease to accrue on and after said date,
and
(5) the place or places where such Notes are to be
surrendered for payment of the Redemption Price.
Notice of redemption of Notes to be redeemed at the election
of the Company shall be given by the Company or, at the Company's request, by
the Trustee in the name and at the expense of the Company; provided that the
Company has given the Trustee written notice of the Redemption Date and
Redemption Price at least 15 days prior to the date that such notice of
redemption must be given to the Holders.
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SECTION 9.07. DEPOSIT OF REDEMPTION PRICE.
By 10:00 a.m., New York City time on the Redemption Date, the
Company shall deposit with the Trustee or with a Paying Agent (or, if the
Company is acting as its own Paying Agent, segregate and hold in trust as
provided in Section 10.03) an amount of money sufficient to pay the Redemption
Price of, and (except if the Redemption Date shall be an Interest Payment Date)
accrued and unpaid interest on, all the Notes which are to be redeemed on that
date.
SECTION 9.08. NOTES PAYABLE ON REDEMPTION DATE.
Notice of redemption having been given as aforesaid, the Notes
so to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued and
unpaid interest) such Notes shall cease to bear interest. Upon surrender of any
such Note for redemption in accordance with said notice, such Note shall be paid
by the Company at the Redemption Price, together with accrued and unpaid
interest to the Redemption Date; provided, however, that installments of
interest whose Stated Maturity is on or prior to the Redemption Date shall be
payable to the Holders of such Notes, registered as such at the close of
business on the relevant Record Dates according to their terms and the
provisions of Section 2.12.
If any Note called for redemption shall not be so paid upon
surrender thereof for redemption, the principal shall, until paid, bear interest
from the Redemption Date at the rate borne by the Note.
SECTION 9.09. NOTES REDEEMED IN PART.
Any Note which is to be redeemed only in part shall be
surrendered at an office or agency of the Company designated for that purpose
pursuant to Section 10.02 (with, if the Company or the Trustee so requires, due
endorsement by, or a written instrument of transfer in form satisfactory to the
Company and the Trustee duly executed by, the Holder thereof or such Holder's
attorney duly authorized in writing), and the Company shall execute, and the
Trustee shall authenticate and deliver to the Holder of such Note, without
service charge to the Holder, a new Note or Notes, of any authorized
denomination as requested by such Holder, in aggregate principal amount equal to
and in exchange for the unredeemed portion of the principal of the Note so
surrendered.
ARTICLE X
COVENANTS
SECTION 10.01. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST.
The Company will duly and punctually pay the principal of and
interest on the Notes in accordance with the terms of the Notes and this
Indenture.
SECTION 10.02. MAINTENANCE OF OFFICE OR AGENCY.
The Company will maintain an office or agency where Notes may
be presented or surrendered for payment, where Notes may be surrendered for
registration of transfer or exchange and where notices and demands to or upon
the Company in respect of the Notes and this Indenture may be served. The
Company will 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 Corporate Trust Office of the
Trustee, and the Company hereby appoints the Trustee as its agent to receive all
such presentations, surrenders, notices and demands.
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The Trustee may resign any agency capacity under this Indenture upon 30 days'
written notice to the Company.
The Company may also from time to time designate one or more
other offices or agencies where the Notes may be presented or surrendered for
any or all such purposes and may from time to time rescind such designations.
The Company will give prompt written notice to the Trustee of any such
designation or remission and of any change in the location of any such other
office or agency.
SECTION 10.03. MONEY FOR NOTE PAYMENTS TO BE HELD IN TRUST.
If the Company shall at any time act as its own Paying Agent,
it will, on or before each due date of the principal of or interest on any of
the Notes, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum sufficient to pay the principal or interest so becoming due until
such sums shall be paid to such Persons or otherwise disposed of as herein
provided and will promptly notify the Trustee of its action or failure so to
act.
Whenever the Company shall have one or more Paying Agents, it
will, prior to each due date of the principal of or interest on any of the
Notes, deposit with a Paying Agent a sum sufficient to pay the principal or
interest so becoming due, such sum to be held in trust for the benefit of the
Persons entitled to such principal or interest, and (unless such Paying Agent is
the Trustee) the Company will promptly notify the Trustee of its action or
failure so to act.
The Company will cause each Paying Agent other than the
Trustee to execute and deliver to the Trustee an instrument in which such Paying
Agent shall agree with the Trustee, subject to the provisions of this Section,
that such Paying Agent will:
(1) hold all sums held by it for the payment of the
principal of or interest on Notes in trust for the benefit of the
Persons entitled thereto until such sums shall be paid to such Persons
or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the
Company (or any other obligor upon the Notes) in the making of any
payment of principal or interest; and
(3) at any time during the continuance of any such
default, upon the written request of the Trustee, forthwith pay to the
Trustee all sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
Any money deposited with the Trustee or any Paying Agent, or
then held by the Company, in trust for the payment of the principal of or
interest on any Note and remaining unclaimed for two years after such principal
or interest has become due and payable shall be paid to the Company on Company
Request, or (if then held by the Company) shall be discharged from such trust;
and the Holder of such Note shall thereafter, as an unsecured general creditor,
look only to the Company for payment thereof, and all liability of the Trustee
or such Paying Agent with respect to such trust money, and all liability of the
Company as trustee thereof, shall thereupon cease; provided, however, that the
Trustee or such Paying Agent, before being required to make any such repayment,
may at the expense of the Company cause to be published once, in a newspaper
published in the English language, customarily published on each Business Day
and of general circulation in the Borough of Manhattan, The City of New York,
New York, notice that such money remains unclaimed and that, after a date
specified therein, which shall not be less than 30 days
41
from the date of such publication, any unclaimed balance of such money then
remaining will be repaid to the Company.
SECTION 10.04. EXISTENCE; CONDUCT OF BUSINESS.
The Parent will, and will cause each of the Subsidiaries to,
preserve and maintain its corporate existence, material rights (charter and
statutory) and material franchises except as permitted by Sections 10.09 and
10.11 hereof. The Parent will, and will cause each of the Subsidiaries to: (a)
conduct its business in the ordinary course; and (b) use its reasonable efforts,
in the ordinary course, to preserve its business and the goodwill and business
of the customers, advertisers, suppliers and others having business relations
with the Parent or such Subsidiary.
SECTION 10.05. PAYMENT AND PERFORMANCE OF OBLIGATIONS.
The Parent will, and will cause each of the Subsidiaries to,
pay or perform its material obligations, including tax liabilities before the
same shall become delinquent or in default, except where (a) the validity or
amount thereof is being contested in good faith by appropriate proceedings or
(b) the Parent or such Subsidiary has set aside on its books adequate reserves
with respect thereto in accordance with GAAP as then in effect.
SECTION 10.06. ADDITIONAL DOMESTIC SUBSIDIARIES; MATERIAL FOREIGN
SUBSIDIARIES.
If any Domestic Subsidiary (other than the Company or a
Domestic Subsidiary that has executed a Guarantee and is a party to the Security
Documents) is formed or acquired (or otherwise becomes a Subsidiary for purposes
of this Indenture) after the date of this Indenture or a Non-Material Foreign
Subsidiary whose direct parent is a Domestic Subsidiary becomes a Material
Foreign Subsidiary, the Parent will notify the Trustee in writing thereof not
later than the fifth Business Day after the date on which such Domestic
Subsidiary is formed or acquired (or otherwise becomes a Subsidiary for purposes
of this Indenture) or such Non-Material Foreign Subsidiary becomes a Material
Foreign Subsidiary, as applicable, and, in addition, the Parent will:
(a) (i) cause such new Domestic Subsidiary to execute and
deliver a Guarantee and (ii) cause such new Domestic Subsidiary and the direct
parent of such Material Foreign Subsidiary to become a party to each applicable
Security Document in the manner provided therein, in each case not later than
the fifth Business Day after the date on which such new Domestic Subsidiary is
formed or acquired (or otherwise becomes a Subsidiary for purposes of this
Indenture) or such Non-Material Foreign Subsidiary becomes a Material Foreign
Subsidiary, as applicable and (ii) promptly take such actions to create and
perfect Liens on such Subsidiary's assets as constitute Collateral to secure the
Obligations as the Majority Noteholders shall reasonably request; and
(b) if any Stock or Stock Equivalents issued by any such
Domestic Subsidiary or Material Foreign Subsidiary are owned or held by or on
behalf of the Company or any Guarantor or any loans, advances or other debt is
owed or owing by any such Domestic Subsidiary or Material Foreign Subsidiary to
the Company or any Guarantor, cause such Stock and Stock Equivalents and
promissory notes and other instruments evidencing such loans, advances and other
debt to be pledged pursuant to the Security Documents not later than the fifth
Business Day after the date on which such Domestic Subsidiary is formed or
acquired (or otherwise becomes a Subsidiary for purposes of this Indenture) or
such Non-Material Foreign Subsidiary becomes a Material Foreign Subsidiary.
SECTION 10.07. INDEBTEDNESS.
The Parent will not, and will not permit any of the
Subsidiaries to, directly or indirectly, create, incur, assume or otherwise
become or remain directly or indirectly liable with respect to any Indebtedness,
except:
42
(a) Indebtedness represented by the Notes and the Junior
Notes;
(b) the other Obligations;
(c) Indebtedness represented by any Credit Agreement;
(d) Indebtedness existing on the date of this Indenture;
(e) Guaranty Obligations incurred by the Company or any
Guarantor in respect of Indebtedness of the Company or any Guarantor otherwise
permitted by this Section 10.07;
(f) Indebtedness arising from intercompany loans from the
Guarantors to the Company or from the Company or any of its subsidiaries to any
Guarantor; provided, however, that the Investment in the intercompany loan to
such subsidiary is permitted under Section 10.10; or
(g) Indebtedness arising under any performance or surety bond
entered into in the ordinary course of business.
SECTION 10.08. LIENS.
The Parent will not, and will not permit any of the
Subsidiaries to, create or suffer to exist, any Lien upon or with respect to any
of their respective properties or assets, whether now owned or hereafter
acquired, or assign, or permit any of the Subsidiaries to assign, any right to
receive income, except for (collectively, the "PERMITTED LIENS"):
(a) Liens in favor of the Collateral Agent on behalf of the
Secured Parties created pursuant to the Security Documents; and
(b) Customary Permitted Liens of the Parent and the
Subsidiaries.
SECTION 10.09. FUNDAMENTAL CHANGES.
The Parent will not, and will not permit any of the
Subsidiaries to: (a) merge with any Person; (b) consolidate with any Person; (c)
acquire all or substantially all of the Stock or Stock Equivalents of any
Person; (d) acquire all or substantially all of the assets of any Person or all
or substantially all of the assets constituting the business of a division,
branch or other unit operation of any Person; or (e) enter into any joint
venture or partnership with any Person; provided, however, that Subsidiaries
other than the Company will be permitted to merge with or be liquidated into
another Note Party (other than the Parent and Arch).
SECTION 10.10. INVESTMENTS.
The Parent will not, and will not permit any of the
Subsidiaries to, directly or indirectly make or maintain any Investment except
(collectively, the "PERMITTED INVESTMENTS"):
(a) Investments existing on the date of this Indenture;
(b) Cash Equivalents held in a Cash Collateral Account or a
Control Account (each as defined in the Security Agreement) with respect to
which the Collateral Agent for the benefit of the Secured Parties has a first
priority perfected Lien;
(c) Accounts, Contract Rights and Chattel Paper (each as
defined in the Security Agreement), notes receivable and similar items arising
or acquired in the ordinary course of business of the Parent and the
Subsidiaries; or
43
(d) Investments by (i) any Guarantor in the Company or in
another Guarantor which is a subsidiary of the Company; (ii) the Company in any
Guarantor which is a subsidiary of the Company; and (iii) the Company in
subsidiaries that are not Guarantors; provided, however, that the aggregate
outstanding amount of such Investments pursuant to this clause (d)(iii), shall
not exceed $100,000 at any time.
SECTION 10.11. ASSET SALES.
The Parent will not, and will not permit any of the
Subsidiaries to, sell, convey, transfer, lease or otherwise dispose of, any of
their respective assets or any interest therein (including the sale or factoring
at maturity or collection of any accounts) to any Person, or permit or suffer
any other Person to acquire any interest in any of their respective assets or,
in the case of any Subsidiary, issue or sell any shares of such Subsidiary's
Stock or Stock Equivalents (any such sale, conveyance, transfer, lease or other
disposition being an "ASSET SALE"), except:
(a) transactions permitted by Section 10.09 hereof;
(b) subject to Section 10.06 hereof, the sale, conveyance,
transfer, lease or other disposition of assets to a subsidiary of the Company
which is a Guarantor;
(c) the sale or disposition of or other use of inventory in
the ordinary course of the Parent's or the Subsidiaries' business;
(d) the collection, liquidation or otherwise disposition of
Accounts (as defined in the Security Agreement) in the ordinary course of the
Parent's or the Subsidiaries' business;
(e) the renegotiation and termination of leasehold interests
in the ordinary course of the Parent's or the Subsidiaries' business;
(f) the sale or disposition of obsolete or worn out fixtures
and equipment in the ordinary course of the Parent's or the Subsidiaries'
business; and
(g) the grant of easements and rights of way on Mortgaged
Property (as defined in the Security Agreement) or other real property in the
ordinary course of the Parent's or the Subsidiaries' business that do not secure
any monetary obligations and do not materially detract from the value of the
affected property or interfere with the ordinary conduct of the business of the
Parent and the Subsidiaries.
SECTION 10.12. RESTRICTED PAYMENTS.
The Parent will not, and will not permit any of the
Subsidiaries to, directly or indirectly, declare, order, pay, make or set apart
any sum for any Restricted Payment, except:
(a) Restricted Payments by any Subsidiary to the Company or
any Guarantor which is a subsidiary of the Company;
(b) Payments in respect of tax sharing among the Note Parties;
and
(c) Restricted Payments by any Subsidiary to the Parent or
Arch in an aggregate amount not to exceed $[ ] in any Fiscal Year to
enable the Parent and Arch to pay ordinary course holding company expenses.
SECTION 10.13. PREPAYMENTS OF INDEBTEDNESS.
The Parent will not, and will not permit any of the
Subsidiaries to, prepay or obligate itself to prepay, in whole or in part, or
voluntarily redeem or otherwise retire prior to the maturity thereof, any Notes
or Junior Notes, except
44
(a) Notes or Junior Notes may be prepaid, redeemed or
otherwise retired as permitted or required by Article IX of this Indenture and
the comparable provisions of the Junior Indenture;
(b) Notes or Junior Notes may be prepaid, redeemed or
otherwise retired in exchange for common stock of the Parent; and
(c) Notes and Junior Notes may be redeemed upon a Change of
Control as required by Section 10.15 hereof and the comparable provisions of the
Junior Indenture; provided that all of the Notes tendered (and not withdrawn)
into such Change of Control Offer have been purchased by the Company prior to
any such redemption of Junior Notes.
SECTION 10.14. TRANSACTIONS WITH AFFILIATES.
The Parent will not, and will not permit any of the
Subsidiaries to, except as otherwise expressly permitted herein, do any of the
following (each, an "AFFILIATE TRANSACTION"):
(a) make any Investment in an Affiliate of the Parent which is
not a Subsidiary or a Guarantor;
(b) transfer, sell, lease, assign or otherwise dispose of any
asset to any Affiliate of the Parent which is not a Subsidiary or a Guarantor;
(c) merge into or consolidate with or purchase or acquire
assets from any Affiliate of the Parent which is not a Subsidiary or a
Guarantor;
(d) repay any Indebtedness to any Affiliate of the Parent
which is not a Subsidiary or a Guarantor; or
(e) enter into any other transaction, directly or indirectly,
with or for the benefit of any Affiliate of the Parent which is not a Guarantor
(including guaranties and assumptions of obligations of any such Affiliate);
except for (i) transactions in the ordinary course of business on a basis no
less favorable to the Parent or such Guarantor as would be obtained in a
comparable arm's length transaction with a Person not an Affiliate and (ii)
salaries and other compensation to officers or directors of the Parent or any of
the Subsidiaries in the ordinary course of business.
SECTION 10.15. REPURCHASE UPON A CHANGE OF CONTROL.
(a) Upon the occurrence of a Change of Control, each
Holder shall have the right to require the Company to repurchase all or any part
(equal to $1,000 or an integral multiple of $1,000) of such Holder's Notes
pursuant to the offer described below (the "CHANGE OF CONTROL OFFER") at a
purchase price (the "CHANGE OF CONTROL PURCHASE PRICE") equal to 100% of the
principal amount thereof, plus accrued and unpaid interest, if any, to the
purchase date (subject to the right of Holders on the relevant record date to
receive interest due on the relevant Interest Payment Date).
Within 10 days following any Change of Control, the Company
shall:
(i) send, by first-class mail, with a copy to
the Trustee, to each Holder, at such Holder's address
appearing in the Note Register maintained in respect of the
Notes by the Registrar, a notice stating:
45
(1) that a Change of Control has occurred and a
Change of Control Offer is being made pursuant to
Section 10.15 and that all Notes timely tendered
will be accepted for payment;
(2) the Change of Control Purchase Price and the
purchase date, which shall be, subject to any
contrary requirements of applicable law, a
Business Day no earlier than 30 days nor later
than 60 days from the date such notice is mailed;
(3) the circumstances and relevant facts regarding
the Change of Control (including information with
respect to pro forma historical income, cash flow
and capitalization after giving effect to the
Change of Control); and
(4) the procedures that Holders must follow in order
to tender their Notes (or portions thereof) for
payment, and the procedures that Holders must
follow in order to withdraw an election to tender
Notes (or portions thereof) for payment.
The Company will comply, to the extent applicable, with the
requirements of Section 14(e)-1 of the Exchange Act and any other securities
laws or regulations in connection with the repurchase of Notes pursuant to a
Change of Control Offer. To the extent that the provisions of any securities
laws or regulations conflict with the provisions of the covenant described
hereunder, the Company will comply with the applicable securities laws and
regulations and will not be deemed to have breached its obligations under the
covenant described hereunder by virtue of such compliance.
(b) On the Change of Control Payment Date, the Company
shall, to the extent lawful:
(i) accept for payment all Notes or portions of
Notes properly tendered pursuant to the Change of Control
Offer;
(ii) deposit with the Paying Agent an amount
equal to the Change of Control Payment in respect of all Notes
or portions of Notes properly tendered; and
(iii) deliver or cause to be delivered to the
Trustee the Notes properly accepted together with an Officers'
Certificate stating the aggregate principal amount of Notes or
portions of Notes being purchased by the Company.
The Paying Agent shall promptly mail to each Holder of Notes
properly tendered the Change of Control Payment for such Notes, and the Trustee
will promptly authenticate and mail (or cause to be transferred by book-entry)
to each Holder a new Note equal in principal amount to any unpurchased portion
of the Notes surrendered, if any; provided that each new Note will be in a
principal amount of $1,000 or an integral multiple of $1,000.
SECTION 10.16. DIVIDEND AND OTHER PAYMENT RESTRICTIONS AFFECTING
SUBSIDIARIES.
The Parent shall not, and shall not permit any of the
Subsidiaries to, directly or indirectly, create or permit to exist or become
effective any restriction on the ability of any Subsidiary to (a) make any
Restricted Payment, (b) make loans or advances to the Parent or any of the
Subsidiaries or (c) transfer any of its properties or assets to the Parent or
any of the Subsidiaries.
The preceding restrictions will not apply to encumbrances or
restrictions existing under or by reason of:
(a) the Notes and the Junior Notes;
46
(b) this Indenture and the Junior Indenture;
(c) any Credit Agreement, if any;
(d) the Security Documents; and
(e) applicable law.
SECTION 10.17. COMPLIANCE WITH LAWS; ETC.
The Parent shall, and shall cause each of the Subsidiaries to,
comply with all applicable Requirements of Law, Contractual Obligations and
Permits, except where the failure so to comply would not in the aggregate have a
Material Adverse Effect.
SECTION 10.18. MAINTENANCE OF INSURANCE.
The Parent shall: (a) maintain, and cause to be maintained for
each of the Subsidiaries, insurance with responsible and reputable insurance
companies or associations in such amounts and covering such risks as is usually
carried by companies engaged in similar businesses and owning similar properties
in the same general areas in which the Parent or the Subsidiaries operate, and
such other insurance as may be reasonably requested by the Trustee, and, in any
event, all insurance required by any Note Document; and (b) cause all such
insurance to name the Collateral Agent on behalf of the Secured Parties as an
additional insured or loss payee, as appropriate, and to provide that no
cancellation, material addition in amount or material change in coverage shall
be effective until after 30 days' written notice thereof to the Trustee.
SECTION 10.19. CHANGE IN NATURE OF BUSINESS.
The Parent will not, and will not permit any of the
Subsidiaries to, make any material change in the nature or conduct of its
business as carried on at the date hereof.
SECTION 10.20. ACCOUNTING CHANGES; FISCAL YEAR.
The Parent will not, and will not permit any of the
Subsidiaries to, change their respective: (a) accounting treatment and reporting
practices or tax reporting treatment, except as required by GAAP or any
Requirement of Law and disclosed to the Trustee; or (b) Fiscal Year.
SECTION 10.21. MINIMUM EBITDA.
The Note Parties shall have, as of the last day of each
quarter set forth below: (a) EBITDA for such quarter ("QUARTERLY EBITDA"); and
(b) EBITDA for the period commencing on [ , 2002] and ending on the
last day of such quarter ("CUMULATIVE EBITDA") of not less than the following:
=================================================================================================
Quarter Ending Minimum Quarterly EBITDA Minimum Cumulative EBITDA
-------------------------------------------------------------------------------------------------
[ ], 2002
-------------------------------------------------------------------------------------------------
June 30, 2002
-------------------------------------------------------------------------------------------------
September 30, 2002
-------------------------------------------------------------------------------------------------
December 31, 2002
-------------------------------------------------------------------------------------------------
March 31, 2003
-------------------------------------------------------------------------------------------------
June 30, 2003
-------------------------------------------------------------------------------------------------
47
=================================================================================================
Quarter Ending Minimum Quarterly EBITDA Minimum Cumulative EBITDA
-------------------------------------------------------------------------------------------------
September 30, 2003
-------------------------------------------------------------------------------------------------
December 31, 2003
-------------------------------------------------------------------------------------------------
March 31, 2004
-------------------------------------------------------------------------------------------------
June 30, 2004
-------------------------------------------------------------------------------------------------
September 30, 2004
-------------------------------------------------------------------------------------------------
December 31, 2004
-------------------------------------------------------------------------------------------------
March 31, 2005
-------------------------------------------------------------------------------------------------
June 30, 2005
-------------------------------------------------------------------------------------------------
September 30, 2005
-------------------------------------------------------------------------------------------------
December 31, 2005
-------------------------------------------------------------------------------------------------
March 31, 2006
-------------------------------------------------------------------------------------------------
June 30, 2006
-------------------------------------------------------------------------------------------------
September 30, 2006
-------------------------------------------------------------------------------------------------
December 31, 2006
-------------------------------------------------------------------------------------------------
March 31, 2007
-------------------------------------------------------------------------------------------------
June 30, 2007
=================================================================================================
SECTION 10.22. MINIMUM DIRECT CUSTOMER UNITS IN SERVICE.
The Note Parties will maintain a number of Units in Service
related to direct customers of the Company and its subsidiaries for paging
services (excluding any Retail Units in Service and any Units in Service that
are customers of Resellers) ("DIRECT CUSTOMER UNITS IN SERVICE") as of the last
day of the quarter, not less than as set forth opposite such day:
==========================================================================================
Quarter Ending Minimum Direct Customer
Units in Service
------------------------------------------------------------------------------------------
[ ], 2002
------------------------------------------------------------------------------------------
June 30, 2002
------------------------------------------------------------------------------------------
September 30, 2002
------------------------------------------------------------------------------------------
December 31, 2002
------------------------------------------------------------------------------------------
March 31, 2003
------------------------------------------------------------------------------------------
June 30, 2003
------------------------------------------------------------------------------------------
September 30, 2003
------------------------------------------------------------------------------------------
December 31, 2003
------------------------------------------------------------------------------------------
March 31, 2004
------------------------------------------------------------------------------------------
June 30, 2004
------------------------------------------------------------------------------------------
September 30, 2004
------------------------------------------------------------------------------------------
48
==========================================================================================
Quarter Ending Minimum Direct Customer
Units in Service
------------------------------------------------------------------------------------------
December 31, 2004
------------------------------------------------------------------------------------------
March 31, 2005
------------------------------------------------------------------------------------------
June 30, 2005
------------------------------------------------------------------------------------------
September 30, 2005
------------------------------------------------------------------------------------------
December 31, 2005
------------------------------------------------------------------------------------------
March 31, 2006
------------------------------------------------------------------------------------------
June 30, 2006
------------------------------------------------------------------------------------------
September 30, 2006
------------------------------------------------------------------------------------------
December 31, 2006
------------------------------------------------------------------------------------------
March 31, 2007
------------------------------------------------------------------------------------------
June 30, 2007
==========================================================================================
SECTION 10.23. MINIMUM TOTAL CONSOLIDATED REVENUES.
The Note Parties shall maintain, as of the last day of each
quarter set forth below: (a) consolidated SRM Revenue for such quarter
("QUARTERLY CONSOLIDATED SRM REVENUE"); and (b) consolidated SRM Revenue for the
period commencing on [ , 2002] and ending on the last day of such
quarter ("CUMULATIVE CONSOLIDATED SRM REVENUE"), of not less than the following:
================================================================================================
Quarter Ending Minimum Quarterly Consolidated Minimum Cumulative
SRM Revenue Consolidated SRM Revenue
------------------------------------------------------------------------------------------------
[ ] , 2002
------------------------------------------------------------------------------------------------
June 30, 2002
------------------------------------------------------------------------------------------------
September 30, 2002
------------------------------------------------------------------------------------------------
December 31, 2002
------------------------------------------------------------------------------------------------
March 31, 2003
------------------------------------------------------------------------------------------------
June 30, 2003
------------------------------------------------------------------------------------------------
September 30, 2003
------------------------------------------------------------------------------------------------
December 31, 2003
------------------------------------------------------------------------------------------------
March 31, 2004
------------------------------------------------------------------------------------------------
June 30, 2004
------------------------------------------------------------------------------------------------
September 30, 2004
------------------------------------------------------------------------------------------------
December 31, 2004
------------------------------------------------------------------------------------------------
March 31, 2005
------------------------------------------------------------------------------------------------
June 30, 2005
------------------------------------------------------------------------------------------------
September 30, 2005
------------------------------------------------------------------------------------------------
49
================================================================================================
Quarter Ending Minimum Quarterly Consolidated Minimum Cumulative
SRM Revenue Consolidated SRM Revenue
------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------
December 31, 2005
------------------------------------------------------------------------------------------------
March 31, 2006
------------------------------------------------------------------------------------------------
June 30, 2006
------------------------------------------------------------------------------------------------
September 30, 2006
------------------------------------------------------------------------------------------------
December 31, 2006
------------------------------------------------------------------------------------------------
March 31, 2007
------------------------------------------------------------------------------------------------
June 30, 2007
================================================================================================
SECTION 10.24. NON-DEVICE CAPITAL EXPENDITURES.
The Note Parties will not permit: (a) One-Way Capital
Expenditures (other than such One-Way Capital Expenditures made in respect of
the purchase or lease of paging devices); and (b) Two-Way Capital Expenditures
(other than such Two-Way Capital Expenditures made in respect of the purchase or
lease of paging devices) to be made or incurred during the period from
[ , 2002] through the end of such quarter set forth below to be in
excess of the maximum amount set forth below for such quarter:
===================================================================================================
Quarter Ending Maximum Cumulative One Way Maximum Cumulative Two Way
Capital Expenditures Capital Expenditures
---------------------------------------------------------------------------------------------------
[ ], 2002
---------------------------------------------------------------------------------------------------
June 30, 2002
---------------------------------------------------------------------------------------------------
September 30, 2002
---------------------------------------------------------------------------------------------------
December 31, 2002
---------------------------------------------------------------------------------------------------
March 31, 2003
---------------------------------------------------------------------------------------------------
June 30, 2003
---------------------------------------------------------------------------------------------------
September 30, 2003
---------------------------------------------------------------------------------------------------
December 31, 2003
---------------------------------------------------------------------------------------------------
March 31, 2004
---------------------------------------------------------------------------------------------------
June 30, 2004
---------------------------------------------------------------------------------------------------
September 30, 2004
---------------------------------------------------------------------------------------------------
December 31, 2004
---------------------------------------------------------------------------------------------------
March 31, 2005
---------------------------------------------------------------------------------------------------
June 30, 2005
---------------------------------------------------------------------------------------------------
September 30, 2005
---------------------------------------------------------------------------------------------------
December 31, 2005
---------------------------------------------------------------------------------------------------
March 31, 2006
---------------------------------------------------------------------------------------------------
June 30, 2006
---------------------------------------------------------------------------------------------------
50
===================================================================================================
Quarter Ending Maximum Cumulative One Way Maximum Cumulative Two Way
Capital Expenditures Capital Expenditures
---------------------------------------------------------------------------------------------------
September 30, 2006
---------------------------------------------------------------------------------------------------
December 31, 2006
---------------------------------------------------------------------------------------------------
March 30, 2007
---------------------------------------------------------------------------------------------------
June 30, 2007
===================================================================================================
provided that any commitments for such One-Way Capital Expenditures or Two-Way
Capital Expenditures in excess of $[ ], individually or in the
aggregate and in one transaction or a series of related transactions, shall
require the prior approval of the Board of Directors of the Parent.
SECTION 10.25. DEVICE CAPITAL EXPENDITURES.
The Note Parties will not permit: (a) One-Way Capital
Expenditures made in respect of the purchase or lease of paging devices; and (b)
Two-Way Capital Expenditures made in respect of the purchase or lease of paging
devices to be made or incurred for the period from [ , 2002] through
the end of each of the quarters set forth below to be in excess of the maximum
amount set forth below for such quarter:
===================================================================================================
Quarter Ending Maximum Cumulative One Way Maximum Cumulative Two Way
Capital Expenditures Capital Expenditures
---------------------------------------------------------------------------------------------------
[ ] , 2002
---------------------------------------------------------------------------------------------------
June, 30, 2002
---------------------------------------------------------------------------------------------------
September 30, 2002
---------------------------------------------------------------------------------------------------
December 31, 2002
---------------------------------------------------------------------------------------------------
March 31, 2003
---------------------------------------------------------------------------------------------------
June 30, 2003
---------------------------------------------------------------------------------------------------
September 30, 2003
---------------------------------------------------------------------------------------------------
December 31, 2003
---------------------------------------------------------------------------------------------------
March 31, 2004
---------------------------------------------------------------------------------------------------
June 30, 2004
---------------------------------------------------------------------------------------------------
September 30, 2004
---------------------------------------------------------------------------------------------------
December 31, 2004
---------------------------------------------------------------------------------------------------
March 31, 2005
---------------------------------------------------------------------------------------------------
June 30, 2005
---------------------------------------------------------------------------------------------------
September 30, 2005
---------------------------------------------------------------------------------------------------
December 31, 2005
---------------------------------------------------------------------------------------------------
March 31, 2006
---------------------------------------------------------------------------------------------------
June 30, 2006
---------------------------------------------------------------------------------------------------
51
===================================================================================================
Quarter Ending Maximum Cumulative One Way Maximum Cumulative Two Way
Capital Expenditures Capital Expenditures
---------------------------------------------------------------------------------------------------
September 30, 2006
---------------------------------------------------------------------------------------------------
December 31, 2006
---------------------------------------------------------------------------------------------------
March 31, 2007
---------------------------------------------------------------------------------------------------
June 30, 2007
===================================================================================================
provided [that inventory of all paging devices held for sale during such quarter
must not exceed total sales of all new paging devices held for sale for the
immediately preceding quarter; (1)] provided, further, that any commitments for
such One-Way Capital Expenditures or Two-Way Capital Expenditures in excess of
$[ ], individually or in the aggregate and in one transaction or a
series of related transactions, shall require the prior approval of the Board of
Directors of the Parent.
SECTION 10.26. PROVISION OF FINANCIAL STATEMENTS.
So long as any Notes are outstanding, the Company shall
furnish to the Trustee and the Holders of the Notes, on the date the Company is
required to file such information with the Commission (a) all quarterly and
annual financial information that would be required to be contained in a filing
with the Commission on Forms 10-Q and 10-K if the Company were required to file
such forms, including a "Management's Discussion and Analysis of Financial
Condition and Results of Operations" and, with respect to the annual information
only, a report on the annual financial statements by the Company's certified
independent accountants and (b) all current reports that would be required to be
filed with the Commission on Form 8-K if the Company were required to file such
reports.
In addition, the Company shall file a copy of all information
and reports referred to in clauses (a) and (b) above with the Commission for
public availability within the time periods specified in the Commission's rules
and regulations (unless the Commission will not accept that filing) and make
that information available to securities analysts and prospective investors upon
request.
Delivery of such reports, information and documents to the
Trustee is for informational purposes only and the Trustee's receipt of such
shall not constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
SECTION 10.27. STATEMENT BY OFFICERS AS TO DEFAULT; NOTICE OF DEFAULT.
(a) The Company will deliver to the Trustee, within 90 days
after the end of each Fiscal Year of the Company ending after the date hereof,
an Officers' Certificate, stating whether or not to the knowledge of the signers
thereof the Company is in compliance with all the terms, provisions, covenants
and conditions of this Indenture and if the Company shall be in Default under
this Indenture, specifying all such Defaults and the nature and status thereof
of which they may have knowledge and including the information referred to in
clause (i) of subsection (b) below.
(b) The Company will deliver to the Trustee within 45 days
after the end of each Fiscal Quarter of any Fiscal Year, an Officers'
Certificate (i) demonstrating compliance with each of the financial
------------------------------------
(1) Please note that an alternative formulation for this sentence is currently
being considered and a proposal will follow in the next draft.
52
covenants contained in this Article X which is tested on a quarterly basis, and
(ii) stating that no Default or Event of Default has occurred and is continuing
or, if a Default or Event of Default has occurred and is continuing, stating the
nature thereof and the action which the Company proposes to take with respect
thereto.
(c) The Company will, so long as any of the Notes are
Outstanding, deliver to the Trustee, within five Business Days of becoming aware
of any Default or Event of Default in the performance of any covenant, agreement
or condition in this Indenture, an Officers' Certificate specifying such Default
or Event of Default.
ARTICLE XI
COLLATERAL
SECTION 11.01. COLLATERAL.
In order to secure the due and punctual payment of the
Obligations, the Company and the Guarantors will grant security interests in and
mortgages on their right, title and interest in and to the Collateral to the
Collateral Agent pursuant to the Security Documents no later than the date of
the first issuance of Notes under this Indenture. At the time the Security
Documents are executed, the Company and the Guarantors will have full right,
power and lawful authority to grant, bargain, sell, release, convey,
hypothecate, assign, mortgage, transfer and confirm, absolutely, the property
constituting the Collateral in the manner and form evidenced by the Security
Documents, and will for so long as any Notes are outstanding, warrant and defend
the title to the same against the claims of all Persons whatsoever unless the
Collateral is released as provided herein or in the Security Documents. The
claims of the Trustee and the Holders of the Notes against the Collateral will
be subject to the terms and provisions of the Security Documents.
SECTION 11.02. RECORDING AND OPINIONS.
The Company and the Guarantors will cause, at their own
expense, the Security Documents and all amendments or supplements thereto to be
registered, recorded and filed or re-recorded, refiled and renewed in such
manner and in such place or places, if any, as may be required by law in order
fully to preserve and protect the Liens created by the Security Documents on all
parts of the Collateral.
The Company and the Guarantors shall furnish to the Trustee:
(a) promptly after the execution and delivery of the Security
Documents (at any time after the initial issuance of the Notes), an Opinion of
Counsel either (i) stating that, in the opinion of such counsel, the assignment
of the Collateral intended to be made by the Security Documents and all other
instruments of further assurance or amendment have been properly recorded,
registered and filed to the extent necessary to make effective the Lien intended
to be created by the Security Documents, and reciting the details of such action
or referring to prior opinions of counsel in which such details are given, and
stating that as to the Security Documents such recording, registering and filing
are the only recordings, registerings and filings necessary to give notice
thereof and that no re-recordings, re-registerings or re-filings are necessary
to maintain such notice, and further stating that all financing statements,
continuation statements and other instruments have been executed and filed that
are necessary fully to preserve and protect the rights of the Holders and the
Trustee hereunder and under the Security Documents, or (ii) stating that, in the
opinion of such counsel, no such action is necessary to make such Lien and
assignment effective; and
(b) within 30 days after May 1 in each year beginning with May
1, 2003, an Opinion of Counsel, dated as of such date, either (i) stating that,
in the opinion of such counsel, such action has been taken with respect to the
recording, registering, filing, re-recording, re-registering and re-filing of
all supplemental indentures, financing statements, continuation statements or
other instruments of further
53
assurance as are necessary to maintain the Lien of the Security Documents and
reciting the details of such action or referring to prior opinions of counsel in
which such details are given, and stating that all financing statements and
continuation statements have been executed and filed that are necessary fully to
preserve and protect the rights of the Holders and the Trustee hereunder and
under the Security Documents, or (ii) stating that, in the opinion of such
counsel, no such action is necessary to maintain such lien and assignment.
SECTION 11.03. POSSESSION AND USE OF COLLATERAL.
(a) So long as no Event of Default has occurred and is
continuing, the Company and the Guarantors will have the right to remain in
possession and retain exclusive control over the Collateral, to freely operate
the Collateral and to collect, invest and dispose of the income therefrom.
(b) Nothing in this Indenture or any of the Security Documents
shall prohibit the Company or any Guarantors from transferring, by conveyance or
otherwise, subject to the Lien of the Security Documents, any of the assets
constituting the Collateral to any Guarantor, for so long as the Guarantor
remains a Guarantor, without any release or consent of the Trustee or the
Majority Noteholders.
SECTION 11.04. RELEASE AND DISPOSITION OF COLLATERAL.
The Collateral shall be released from the Lien of the Security
Documents as expressly provided therein or in connection with any transaction
permitted by Section 10.11 of this Indenture.
To the extent applicable, the Company shall cause TIA Section
314(d) relating to the release of property from the Lien of the Security
Documents to be complied with. Any certificate or opinion required by TIA
Section 314(d) may be made by an officer of the Company, except in cases in
which TIA Section 314(d) requires that such certificate or opinion be made by an
independent Person.
The release of any Collateral from the terms hereof and of the
Security Documents pursuant to the terms of the Security Documents or this
Indenture will not be deemed to impair the security under this Indenture in
contravention of the provisions hereof.
SECTION 11.05. DISPOSITION OF COLLATERAL WITHOUT RELEASE.
(a) In addition to and without limiting the
provisions of Section 11.04 and subject to Section 10.11, at any time
and from time to time, the Company and any Guarantors may without any
release or consent of the Trustee or the Majority Noteholders:
(i) sell, dispose of or otherwise use
inventory in the ordinary course of the Company's or
the Guarantors' business;
(ii) collect, liquidate or otherwise
dispose of Accounts (as defined in the Security
Agreement) in the ordinary course of the Company's or
the Guarantors' business;
(iii) renegotiate and terminate leasehold
interests in Collateral in the ordinary course of the
Company's or the Guarantors' business;
(iv) sell or dispose of obsolete or worn
out fixtures and equipment which are Collateral in
the ordinary course of the Company's or the
Guarantors' business; and
(v) grant easements and rights of way
on Mortgaged Property (as defined in the Security
Agreement) in the ordinary course of the Company's or
the Guarantors' business that do not secure any
monetary obligations and do not
54
materially detract from the value of the affected
property or interfere with the ordinary conduct of
the business of the Company and the Guarantors.
(b) The Company's and the Guarantors' right to rely
upon subsection (a) of this Section for each six-month period beginning
on [January 1] and [July 1] (a "SIX-MONTH PERIOD") shall be conditioned
upon the Company and the Guarantors delivering to the Trustee and the
Collateral Agent, within 30 days following the end of such Six-Month
Period, an Officers' Certificate to the effect that all sales of
inventory, all collections and other dispositions of Accounts (as
defined in the Security Agreement) and any other disposition
contemplated by Section 11.05(a) by the Company and the Guarantors
during such Six-Month Period were in the ordinary course of the
Company's and the Guarantors' business and that all proceeds therefrom
were used by the Company and the Guarantors in the ordinary course of
their business or to make other cash payments permitted by this
Indenture.
ARTICLE XII
GUARANTEES
SECTION 12.01. GUARANTEES.
Subject to this Article XII, each of the Guarantors hereby,
jointly and severally, unconditionally guarantees to each Holder of a Note
authenticated and delivered by the Trustee and to the Trustee and its successors
and assigns, irrespective of the validity and enforceability of this Indenture,
the Notes or the obligations of the Company hereunder or thereunder, that: (a)
the principal of, premium, if any, and interest on the Notes shall be promptly
paid in full when due, whether at maturity, by acceleration, redemption or
otherwise, and interest on the overdue principal of and interest on the Notes,
if any, if lawful, and all other obligations of the Company to the Holders or
the Trustee hereunder or thereunder shall be promptly paid in full or performed,
all in accordance with the terms hereof and thereof; and (b) in case of any
extension of time of payment or renewal of any Notes or any of such other
obligations, that same shall be promptly paid in full when due or performed in
accordance with the terms of the extension or renewal, whether at stated
maturity, by acceleration pursuant to Section 4.02 hereof or otherwise. Failing
payment when due of any amount so guaranteed or any performance so guaranteed
for whatever reason, the Guarantors shall be jointly and severally obligated to
pay the same immediately. Each Guarantor agrees that this is a guarantee of
payment and not a guarantee of collection.
Each Guarantor hereby agrees that its obligations with regard
to this Guarantee shall be joint and several and unconditional, irrespective of
the validity or enforceability of the Notes or the obligations of the Company
under this Indenture, the absence of any action to enforce the same, the
recovery of any judgment against the Company or any other obligor with respect
to this Indenture, the Notes or the Obligations of the Company under this
Indenture or the Notes, any action to enforce the same or any other
circumstances (other than complete performance) which might otherwise constitute
a legal or equitable discharge or defense of a Guarantor. Each Guarantor
further, to the extent permitted by law, waives and relinquishes all claims,
rights and remedies accorded by applicable law to guarantors and agrees not to
assert or take advantage of any such claims, rights or remedies, including but
not limited to: (a) any right to require any of the Trustee, the Holders or the
Company (each a "BENEFITED PARTY"), as a condition of payment or performance by
such Guarantor, to (i) proceed against the Company, any other guarantor
(including any other Guarantor) of the Obligations under the Guarantees or any
other Person, (ii) proceed against or exhaust any security held from the
Company, any such other guarantor or any other Person, (iii) proceed against or
have resort to any balance of any deposit account or credit on the books of any
Benefited Party in favor of the Company or any other Person, or (iv) pursue any
other remedy in the power of any Benefited Party whatsoever; (b) any defense
arising by reason of the incapacity, lack of authority or any disability or
other defense of the Company including any defense based on or arising out of
the lack of validity or the unenforceability of the Obligations under the
Guarantees or any agreement or instrument relating thereto or by reason of the
cessation of the liability of the Company from any cause other than payment in
full of the Obligations under the Guarantees; (c) any defense based upon any
statute or rule of law which provides that the obligation of a surety must be
neither larger in amount nor in other respects
55
more burdensome than that of the principal; (d) any defense based upon any
Benefited Party's errors or omissions in the administration of the Obligations
under the Guarantees, except behavior which amounts to bad faith; (e)(i) any
principles or provisions of law, statutory or otherwise, which are or might be
in conflict with the terms of the Guarantees and any legal or equitable
discharge of such Guarantor's obligations hereunder, (ii) the benefit of any
statute of limitations affecting such Guarantor's liability hereunder or the
enforcement hereof, (iii) any rights to set-offs, recoupments and counterclaims
and (iv) promptness, diligence and any requirement that any Benefited Party
protect, secure, perfect or insure any security interest or Lien on any property
subject thereto; (f) notices, demands, presentations, protests, notices of
protest, notices of dishonor and notices of any action or inaction, including
acceptance of the Guarantees, notices of default under the Notes or any
agreement or instrument related thereto, notices of any renewal, extension or
modification of the Obligations under the Guarantees or any agreement related
thereto, and notices of any extension of credit to the Company and any right to
consent to any thereof; (g) to the extent permitted under applicable law, the
benefits of any "One Action" rule and (h) any defenses or benefits that may be
derived from or afforded by law which limit the liability of or exonerate
guarantors or sureties, or which may conflict with the terms of the Guarantees.
Each Guarantor hereby covenants that its Guarantee shall not be discharged
except by complete performance of the obligations contained in its Guarantee and
this Indenture.
If any Holder or the Trustee is required by any court or
otherwise to return to the Company, the Guarantors or any custodian, trustee,
liquidator or other similar official acting in relation to either the Company or
the Guarantors, any amount paid either to the Trustee or such Holder, this
Guarantee, to the extent theretofore discharged, shall be reinstated in full
force and effect.
Each Guarantor agrees that it shall not be entitled to any
right of subrogation in relation to the Holders in respect of any obligations
guaranteed hereby until payment in full of all obligations guaranteed hereby.
Each Guarantor further agrees that, as between the Guarantors, on the one hand,
and the Holders and the Trustee, on the other hand, (x) the maturity of the
obligations guaranteed hereby may be accelerated as provided in Section 4.02
hereof for the purposes of this Guarantee, notwithstanding any stay, injunction
or other prohibition preventing such acceleration in respect of the obligations
guaranteed hereby and (y) in the event of any declaration of acceleration of
such obligations as provided in Section 4.02 hereof, such obligations (whether
or not due and payable) shall forthwith become due and payable by the Guarantors
for the purpose of this Guarantee. The Guarantors shall have the right to seek
contribution from any non-paying Guarantor so long as the exercise of such right
does not impair the rights of the Holders under the Guarantee.
SECTION 12.02. SUBORDINATION OF GUARANTEE.
The Obligations of each Guarantor under its Guarantee pursuant
to this Article XII shall be junior and subordinated to the Senior Debt of such
Guarantor on the same basis as the Notes are junior and subordinated to Senior
Debt of the Company. For the purposes of the foregoing sentence, the Trustee and
the Holders shall have the right to receive and/or retain payments by any of the
Guarantors only at such times as they may receive and/or retain payments in
respect of the Notes pursuant to this Indenture, including Article XII hereof.
SECTION 12.03. LIMITATION ON GUARANTOR LIABILITY.
Each Guarantor, and by its acceptance of Notes, each Holder,
hereby confirms that it is the intention of all such parties that the Guarantee
of such Guarantor not constitute a fraudulent transfer or conveyance for
purposes of the Bankruptcy Code, the Uniform Fraudulent Conveyance Act, the
Uniform Fraudulent Transfer Act or any similar federal or state law to the
extent applicable to any Guarantee. To effectuate the foregoing intention, the
Trustee, the Holders and the Guarantors hereby irrevocably agree that the
obligations of such Guarantor under this Article XII shall be limited to the
maximum amount as shall, after giving effect to such maximum amount and all
other contingent and fixed liabilities of such Guarantor that are relevant under
such laws, including, if applicable, its guarantee of all obligations under any
Credit Agreement, and after giving effect to any collections from, rights to
receive contribution from or payments made by or on behalf of any other
Guarantor in respect of the obligations of such other Guarantor
56
under this Article XII, result in the obligations of such Guarantor under its
Guarantee not constituting a fraudulent transfer or conveyance.
SECTION 12.04. EXECUTION AND DELIVERY OF GUARANTEE.
To evidence its Guarantee set forth in Section 12.01 hereof,
each Guarantor hereby agrees that a notation of such Guarantee in substantially
the form included in Exhibit B shall be endorsed by an officer of such Guarantor
on each Note authenticated and delivered by the Trustee and that this Indenture
shall be executed on behalf of such Guarantor by its President or one of its
Vice Presidents.
Each Guarantor hereby agrees that its Guarantee set forth in
Section 12.01 hereof shall remain in full force and effect notwithstanding any
failure to endorse on each Note a notation of such Guarantee.
If an officer whose signature is on this Indenture or on the
Guarantee no longer holds that office at the time the Trustee authenticates the
Note on which a Guarantee is endorsed, the Guarantee shall be valid
nevertheless.
The delivery of any Note by the Trustee, after the
authentication thereof hereunder, shall constitute due delivery of the Guarantee
set forth in this Indenture on behalf of the Guarantors.
SECTION 12.05. GUARANTORS MAY CONSOLIDATE, ETC., ON CERTAIN TERMS.
Except as otherwise provided in this Section 12.05, no
Guarantor may consolidate with or merge with or into (whether or not such
Guarantor is the surviving Person) another Person whether or not affiliated with
such Guarantor unless:
(a) subject to this Section 12.05, the Person formed
by or surviving any such consolidation or merger (if other than a
Guarantor or the Company) unconditionally assumes all the obligations
of such Guarantor, pursuant to a supplemental indenture in form and
substance reasonably satisfactory to the Trustee, under the Notes, this
Indenture, and the Guarantee on the terms set forth herein or therein;
and
(b) the Guarantor complies with the requirements of
Article VII and Section 10.09 hereof.
In case of any such consolidation, merger, sale or conveyance
and upon the assumption by the successor Person, by supplemental indenture,
executed and delivered to the Trustee and satisfactory in form to the Trustee,
of the Guarantee endorsed upon the Notes and the due and punctual performance of
all of the covenants and conditions of this Indenture to be performed by the
Guarantor, such successor Person shall succeed to and be substituted for the
Guarantor with the same effect as if it had been named herein as a Guarantor.
Such successor Person thereupon may cause to be signed any or all of the
Guarantees to be endorsed upon all of the Notes issuable hereunder which
theretofore shall not have been signed by the Company and delivered to the
Trustee. All the Guarantees so issued shall in all respects have the same legal
rank and benefit under this Indenture as the Guarantees theretofore and
thereafter issued in accordance with the terms of this Indenture as though all
of such Guarantees had been issued at the date of the execution hereof.
Except as set forth in Article VII and Section 10.09 hereof,
and notwithstanding clauses (a) and (b) above, nothing contained in this
Indenture or in any of the Notes shall prevent any consolidation or merger of a
Guarantor with or into the Company or another Guarantor, or shall prevent any
sale or conveyance of the property of a Guarantor as an entirety or
substantially as an entirety to the Company or another Guarantor.
SECTION 12.06. RELEASES FOLLOWING SALE OF ASSETS.
57
In the event of a sale or other disposition of all of the
assets of any Guarantor, by way of merger, consolidation or otherwise, or a sale
or other disposition of all the capital stock of any Guarantor, in each case to
a Person that is not (either before or after giving effect to such transactions)
a subsidiary of the Company, then such Guarantor (in the event of a sale or
other disposition, by way of merger, consolidation or otherwise, of all of the
capital stock of such Guarantor) or the corporation acquiring the property (in
the event of a sale or other disposition of all or substantially all of the
assets of such Guarantor) shall be released and relieved of any obligations
under its Guarantee; provided that the net proceeds of such sale or other
disposition are applied in accordance with the applicable provisions of this
Indenture, including without limitation Section 10.11 hereof. Upon delivery by
the Company to the Trustee of an Officers' Certificate and an Opinion of Counsel
to the effect that such sale or other disposition was made by the Company in
accordance with the provisions of this Indenture, including without limitation
Section 10.11 hereof, the Trustee shall execute any documents reasonably
required in order to evidence the release of any Guarantor from its obligations
under its Guarantee.
Any Guarantor not released from its obligations under its
Guarantee shall remain liable for the full amount of principal of and interest
on the Notes and for the other obligations of any Guarantor under this Indenture
as provided in this Article XII.
ARTICLE XIII
SUBORDINATION
SECTION 13.01. AGREEMENT TO SUBORDINATE.
The Company agrees, and each Holder by accepting a Note
agrees, that the Indebtedness evidenced by, and the payment of principal,
premium, if any, and interest on, the Notes is subordinated in right of payment,
to the extent and in the manner provided in this Article XIII, to the prior
payment in full of all Senior Debt, and that the subordination is for the
benefit of and enforceable by the holders of Senior Debt.
SECTION 13.02. LIQUIDATION, DISSOLUTION OR BANKRUPTCY.
Upon any payment or distribution of assets or securities of
the Company of any kind or character, whether in cash, property or securities,
upon any dissolution or winding up or total or partial liquidation or
reorganization of the Company, whether voluntary or involuntary, or in
bankruptcy, insolvency, receivership or other proceedings or upon an assignment
for the benefit of creditors or any other marshalling of the assets and
liabilities of the Company, all Senior Debt shall first be paid in full in cash,
or payment provided for in cash or Cash Equivalents in a manner satisfactory to
the holders of Senior Debt, before any direct or indirect payments or
distributions, including, without limitation, by exercise of set-off, of any
cash, property or securities on account of principal of (or premium, if any) or
interest on the Notes and to that end the holders of Senior Debt shall be
entitled to receive (pro rata on the basis of the respective amounts of Senior
Debt held by them) directly, for application to the payment thereof (to the
extent necessary to pay all Senior Debt in full after giving effect to any
substantially concurrent payment or distribution to or provision for payment to
the holders of such Senior Debt), any payment or distribution of any kind or
character, whether in cash, property or securities, which the Holders of the
Notes would be entitled but for this Article XIII, except that the Holders of
the Notes may receive and retain equity securities of the Company or debt
securities of the Company that are subordinated to Senior Debt (and any debt
securities issued in exchange for Senior Debt) to substantially the same extent
as, or to a greater extent than, the Notes are subordinated to the Senior Debt
pursuant to this Article XIII. The holders of Senior Debt are hereby authorized
to file an appropriate claim for and on behalf of the Holders if they or any of
them do not file, and there is not otherwise filed on behalf of the Holders, a
proper claim or proof of claim in the form required in any such proceeding prior
to 30 days before the expiration of the time to file such claim or claims.
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SECTION 13.03. DEFAULT ON SENIOR DEBT.
The Company may not make any direct or indirect payment to the
Trustee or any Holder of principal of (premium, if any), or interest on, the
Notes, whether pursuant to the terms of the Notes, upon acceleration or
otherwise, if at the time of such payment there exists (i) a default in the
payment of all or any portion of principal of (premium, if any), interest on,
fees or other amounts owing in connection with any Senior Debt, or (ii) any
other default under any document or instrument governing or evidencing any
Senior Debt, and the Trustee has received written notice of such default from
the Representative of the holders of Senior Debt, and, in either case, such
default shall not have been cured or waived in writing; provided, however, that
if within the period specified in the next sentence with respect to a default
referred to in clause (ii) above, the holders of Senior Debt have not declared
the Senior Debt to be immediately due and payable (or have declared such Senior
Debt to be immediately due and payable and within such period have rescinded
such acceleration), then and in that event, payment of principal of, and
interest on, the Notes shall be resumed. With respect to any default under
clause (ii) above, the period referred to in the preceding sentence shall
commence upon receipt by the Trustee of a written notice or notices (which shall
specify all defaults existing under the Senior Debt on the date of such notice
and of which the Representative giving such notice had actual knowledge at such
time) of the commencement of such period from such Representative, and shall end
at the completion of the 179th day after the beginning of such period. Only one
such 179 day period may commence within any 360 consecutive days. Upon
termination of any such period, the Company shall resume payments on account of
the principal of (premium, if any), and interest on, the Notes, subject to the
provisions of this Article XIII.
SECTION 13.04. RIGHTS AND OBLIGATIONS OF THE TRUSTEE AND THE HOLDERS.
(a) In the event that, notwithstanding the foregoing
provision prohibiting such payment or distribution, the Trustee or any Holder
shall have received any payment on account of the Notes at a time when such
payment is prohibited by such provision before the Senior Debt is paid in full,
then and in such event, such payment or distribution shall be received and held
in trust by the Trustee or such Holders apart from their other assets and paid
over or delivered to the holders of the Senior Debt remaining unpaid to the
extent necessary to pay in full in cash the principal of (premium, if any), and
interest on, such Senior Debt in accordance with its terms and after giving
effect to any concurrent payment or distribution to the holders of such Senior
Debt.
(b) Nothing contained in this Article XIII will limit the
right of the Trustee or the Holders of the Notes to take any action to
accelerate the maturity of the Notes; provided, however, that the right of the
Holders to receive any payment from the Company of principal of, or interest on,
the Notes upon such acceleration shall be subject to the provisions of Section
13.03 hereof.
(c) Upon any payment or distribution of assets or
securities referred to in this Article XIII, the Trustee and the Holders shall
be entitled to rely (i) upon any order or decree of a court of competent
jurisdiction in which any proceedings of the nature referred to in Section 13.02
are pending; (ii) upon a certificate of the liquidating trustee or agent or
other Person making such payment or distribution to the Trustee or to the
Holders or (iii) upon the Representatives for the holders of Senior Debt for the
purpose of ascertaining the Persons entitled to participate in such payment or
distribution, the holders of Senior Debt and other Indebtedness of the Company,
the amount thereof or payable thereon, the amount or amounts paid or distributed
thereon and all other facts pertinent thereto or to this Article XIII.
(d) In the event that the Trustee determines, in good
faith, that evidence is required with respect to the right of any Person as a
holder of Senior Debt to participate in any payment or distribution pursuant to
this Article XIII, the Trustee may request such Person to furnish evidence to
the reasonable satisfaction of the Trustee as to the amount of Senior Debt held
by such Person, the extent to which such Person is entitled to participate in
such payment or distribution and other facts pertinent to the rights of such
Person under this Article XIV, and, if such evidence is not furnished, the
Trustee may defer any payment to such Person pending judicial determination as
to the right of such Person to receive such payment. The provisions of Sections
5.01 and 5.02 shall be applicable to all actions or omissions of actions by the
Trustee pursuant to this Article XIII.
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SECTION 13.05. SUBROGATION.
Upon the payment in full of all Senior Debt, the Holders of
the Notes shall be subrogated to the extent of the payments or distributions
made to the holders of, or otherwise applied to payment of, the Senior Debt
pursuant to the provisions of this Article XIII and to the rights of the holders
of Senior Debt to receive payments or distributions of assets of the Company
made on the Senior Debt until the Notes shall be paid in full; and for the
purposes of such subrogation, no payments or distributions to holders of Senior
Debt of any cash, property or securities to which Holders of the Notes would be
entitled except for the provisions of this Article XIII, no payment over
pursuant to the provisions of this Article XIII to holders of Senior Debt by the
Holders, shall, as between Company, its creditors other than holders of Senior
Debt and the Holders of the Notes, be deemed to be payment by Company to or on
account of Senior Debt, it being understood that the provisions of this Article
XIII are solely for the purpose of defining the relative rights of the holders
of Senior Debt, on the one hand, and the Holders of the Notes, on the other
hand.
If any payment or distribution to which the Holders would
otherwise have been entitled but for the provisions of this Article XIII shall
have been applied, pursuant to the provisions of this Article XIII, to the
payment of Senior Debt, then and in such case, the Holders shall be entitled to
receive from the holders of Senior Debt at the time outstanding any payments or
distributions received by such holders of Senior Debt in excess of the amount
sufficient to pay all Senior Debt in full.
SECTION 13.06. OBLIGATIONS OF COMPANY UNCONDITIONAL.
Nothing contained in this Article XIII or elsewhere in this
Indenture or in the Notes is intended to or shall impair, as between the Company
and the Holders, the obligations of the Company, which is absolute and
unconditional, to pay to the Holders the principal of (premium, if any), and
interest on, the Notes as and when the same shall become due and payable in
accordance with their terms, or is intended to or shall affect the relative
rights of the Holders of the Notes and creditors of the Company other than the
holders of the Senior Debt, nor shall anything herein or therein prevent any
Holder from exercising all remedies otherwise permitted by applicable law upon
the occurrence of a Default or Event of Default under this Indenture, subject to
the rights, if any, under this Article XIII of the holders of Senior Debt in
respect of cash, property or securities of the Company received upon the
exercise of any such remedy.
The failure to make a payment on account of principal of, or
interest on, the Notes by reason of any provision of this Article XIII shall not
be construed as preventing the occurrence of a Default or an Event of Default
hereunder.
SECTION 13.07. NOTICE BY THE COMPANY.
The Company shall give prompt written notice to the Trustee
and the Paying Agent of any fact known to the Company which would prohibit the
making of any payment on or in respect of the Notes, but failure to give such
notice shall not affect the subordination of the Notes to the Senior Debt
provided in this Article XIII. Notwithstanding the provisions of this Article
XIII or any other provision of this Indenture or the Notes, neither the Trustee
nor the Paying Agent shall be charged with knowledge of the existence of any
facts which would prohibit the making of any payment to or in respect of the
Notes, unless and until the Trustee and the Paying Agent shall have received
written notice thereof from the Company or the Representative of Senior Debt,
and, prior to the receipt of any such written notice, subject to the provisions
of this Article XIII, the Trustee and the Paying Agent shall be entitled in all
respects to assume no such facts exist. Nothing contained in this Section 13.07
shall limit the right of the holders of Senior Debt to recover payments as
contemplated by 13.01 and 13.02.
SECTION 13.08. RIGHT AS HOLDER OF SENIOR DEBT.
The Trustee or any Holder in its individual capacity shall be
entitled to all the rights set forth in this Article XIII with respect to any
Senior Debt which may at any time be held by it, to the same
60
extent as any other holder of Senior Debt, and nothing in this Indenture shall
deprive the Trustee or such Holder of any of its rights as such holder.
SECTION 13.09. REINSTATEMENT.
The provisions of this Article XIII shall continue to be
effective or be reinstated, and the Senior Debt shall not be deemed to be paid
in full, as the case may be, if at any time any payment of any of the Senior
Debt is rescinded or must otherwise be returned by the holder thereof upon the
insolvency, bankruptcy or reorganization of the Company or otherwise, all as
though such payment had not been made.
SECTION 13.10. RIGHTS OF TRUSTEE AND PAYING AGENT.
Notwithstanding Section 13.03, the Trustee or Paying Agent may
continue to make payments on the Notes and shall not be charged with knowledge
of the existence of any facts that would prohibit the making of any such
payments, unless not less than two Business Days prior to the date of such
payment, a Responsible Officer of the Trustee shall have received at its office
written notice of facts that would cause the payment of any principal of and
interest on the Notes to violate this Article XIII. The Company, the Registrar
or co-registrar, the Paying Agent, a Representative or a Holder of Senior Debt
may give the notice; provided, however, that, if an issue of Senior Debt has a
Representative, only the Representative may give the notice. The Trustee in its
individual or any other capacity may hold Senior Debt with the same rights it
would have if it were not Trustee. The Registrar and co-registrar and the Paying
Agent may do the same with like rights.
SECTION 13.11. TRUST MONEYS NOT SUBORDINATED.
The Trustee shall be entitled to all the rights set forth in
this Article XIII with respect to any Senior Debt which may at any time be held
by it, to the same extent as any other holder of Senior Debt; and nothing in
Article VI shall deprive the Trustee of any of its rights as such holder.
Nothing in this Article XIII shall apply to claims of, or payments to, the
Trustee under or pursuant to Section 4.07.
SECTION 13.12. TRUSTEE TO EFFECTUATE SUBORDINATION.
Each Holder of a Note by the Holder's acceptance thereof
authorizes and directs the Trustee on the Holder's behalf to take such action as
may be necessary or appropriate to acknowledge or effectuate the subordination
between the Holders and the holders of Senior Debt as provided in this Article
XIII, and appoints the Trustee to act as the Holder's attorney-in-fact for any
and all such purposes.
SECTION 13.13. TRUSTEE NOT FIDUCIARY FOR HOLDERS OF SENIOR DEBT.
The Trustee shall not be deemed to owe any fiduciary duty to
the holders of Senior Debt and shall not be liable to any such holders if it
shall mistakenly pay over or distribute to Holders or the Company or any other
Person, money or assets to which any holders of Senior Debt shall be entitled by
virtue of this Article XIII or otherwise.
SECTION 13.14. RELIANCE BY HOLDERS OF SENIOR DEBT ON SUBORDINATION
PROVISIONS.
Each Holder by accepting a Note acknowledges and agrees that
the foregoing subordination provisions are, and are intended to be, an
inducement and a consideration to each holder of any Senior Debt, whether such
Senior Debt was created or acquired before or after the issuance of the Notes,
to acquire and continue to hold, or to continue to hold, such Senior Debt and
such holder of Senior Debt shall be deemed conclusively to have relied on such
subordination provisions in acquiring and continuing to hold, or in continuing
to hold, such Senior Debt.
61
ARTICLE XIV
MISCELLANEOUS
SECTION 14.01. TRUST INDENTURE ACT CONTROLS.
If any provision of this Indenture limits, qualifies or
conflicts with the duties imposed by TIA Section 318(c), the imposed duties
shall control.
SECTION 14.02. NOTICES.
Any notice or communication by the Company or the Trustee to
the other is duly given if in writing and delivered in Person or mailed by first
class mail (registered or certified, return receipt requested), telecopier or
overnight air courier guaranteeing next-day delivery, to the other's address:
If to the Company:
Arch Wireless Holdings, Inc.
0000 Xxxx Xxxx Xxxxx, Xxxxx 000
Xxxxxxxxxxx, Xxxxxxxxxxxxx 00000
Attention: J. Xxx Xxxxxx, Chief Financial Officer
Telecopier No.: (000) 000-0000
With a copy to:
Xxxx and Xxxx LLP
00 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxx X. Xxxxxxxx, Esq.
Telecopier No.: (000) 000-0000
If to the Trustee:
Telecopier No.:
Attention:
With a copy to:
Telecopier No.
Attention:
The Company or the Trustee, by notice to the other, may
designate additional or different addresses for subsequent notices or
communications.
All notices and communications (other than those sent to
Holders and the Trustee) shall be deemed to have been duly given: at the time
delivered by hand, if personally delivered; five Business Days after being
deposited in the mail, postage prepaid, if mailed; when receipt is acknowledged,
if telecopied; and the next Business Day after timely delivery to the courier,
if sent by overnight air courier guaranteeing next-day delivery. All notices and
communications to the Trustee shall be deemed duly given and effective only upon
receipt.
62
Any notice or communication to a Holder shall be mailed by
first class mail, certified or registered, return receipt requested, or by
overnight air courier guaranteeing next-day delivery to its address shown on the
Note Register. Any notice or communication shall also be so mailed to any Person
described in TIA Section 313(c), to the extent required by the TIA. Failure to
mail a notice or communication to a Holder or any defect in it shall not affect
its sufficiency with respect to other Holders.
If a notice or communication is mailed in the manner provided
above within the time prescribed, it is duly given, whether or not the addressee
receives it.
If the Company mails a notice or communication to Holders, it
shall mail a copy to the Trustee and each Agent at the same time.
SECTION 14.03. COMMUNICATION BY HOLDERS OF NOTES WITH OTHER HOLDERS OF NOTES.
Holders may communicate pursuant to TIA Section 312(b) with
other Holders with respect to their rights under this Indenture or the Notes.
The Company, the Trustee, the Registrar and anyone else shall have the
protection of TIA Section 312(c).
SECTION 14.04. CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT.
Upon any request or application by the Company to the Trustee
to take any action under any provision of this Indenture, the Company shall
furnish to the Trustee:
(a) an Officers' Certificate in form and substance
reasonably satisfactory to the Trustee (which shall include the
statements set forth in Section 14.05 hereof) stating that, in the
opinion of the signers, all conditions precedent and covenants, if any,
provided for in this Indenture relating to the proposed action have
been complied with; and
(b) an Opinion of Counsel in form and substance
reasonably satisfactory to the Trustee (which shall include the
statements set forth in Section 14.05 hereof) stating that, in the
opinion of such counsel, all such conditions precedent and covenants
have been complied with.
SECTION 14.05. STATEMENTS REQUIRED IN CERTIFICATE OR OPINION.
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than a certificate
provided pursuant to TIA Section 314(a)(4)) shall comply with the provisions of
TIA Section 314(e) and shall include:
(a) a statement that the Person making such
certificate or opinion has read such covenant or condition;
(b) 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;
(c) a statement that, in the opinion of such Person,
he or she has made such examination or investigation as is necessary to
enable such Person to express an informed opinion as to whether or not
such covenant or condition has been complied with; and
(d) a statement as to whether or not, in the opinion
of such Person, such condition or covenant has been complied with.
SECTION 14.06. RULES BY TRUSTEE AND AGENTS.
63
The Trustee may make reasonable rules for action by or at a
meeting of Holders. The Registrar or Paying Agent may make reasonable rules and
set reasonable requirements for its functions.
SECTION 14.07. NO PERSONAL LIABILITY OF DIRECTORS, OFFICERS, EMPLOYEES AND
STOCKHOLDERS.
No past, present or future director, officer, employee,
incorporator or stockholder of the Company, as such, shall have any liability
for any obligations of the Company under the Notes, this Indenture or for any
claim based on, in respect of, or by reason of, such obligations or their
creation. Each Holder by accepting a Note waives and releases all such
liability. The waiver and release are part of the consideration for issuance of
the Notes. Such waiver may not be effective to waive liabilities under the
federal securities laws and it is the view of the Commission that such a waiver
is against public policy.
SECTION 14.08. GOVERNING LAW.
THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE
USED TO CONSTRUE THIS INDENTURE AND THE NOTES WITHOUT GIVING EFFECT TO
APPLICABLE PRINCIPLES OF CONFLICT OF LAWS TO THE EXTENT THAT THE APPLICATION OF
THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
SECTION 14.09. NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS.
This Indenture may not be used to interpret any other
indenture, loan or debt agreement of the Company or its subsidiaries or of any
other Person. Any such indenture, loan or debt agreement may not be used to
interpret this Indenture.
SECTION 14.10. SUCCESSORS.
All covenants and agreements of the Note Parties in this
Indenture and the Notes and the Guarantees shall bind its successors. All
covenants and agreements of the Trustee in this Indenture shall bind its
successors.
SECTION 14.11. SEVERABILITY.
In case any provision in this Indenture or in the Notes shall
be invalid, illegal or unenforceable, the validity, legality and enforceability
of the remaining provisions shall not in any way be affected or impaired
thereby.
SECTION 14.12. COUNTERPART ORIGINALS.
The parties may sign any number of copies of this Indenture.
Each signed copy shall be an original, but all of them together represent the
same agreement.
SECTION 14.13. TABLE OF CONTENTS, HEADINGS, ETC.
The Table of Contents, Cross-Reference Table and Headings in
this Indenture have been inserted for convenience of reference only, are not to
be considered a part of this Indenture and shall in no way modify or restrict
any of the terms or provisions hereof.
[Signatures on following page]
64
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, all as of the date first written above.
ARCH WIRELESS HOLDINGS, INC.
By: ___________________________________
ARCH WIRELESS COMMUNICATIONS, INC.
By: ___________________________________
ARCH WIRELESS , INC.
By: ___________________________________
[GUARANTORS]
By:
[TRUSTEE]
By: ___________________________________
65
EXHIBIT A
================================================================================
(Face of Note)
10% SENIOR SUBORDINATED SECURED NOTES DUE 2007
CUSIP _____________
NO. $_____________
ARCH WIRELESS HOLDINGS, INC.
promises to pay to CEDE & CO., INC. or registered assigns, the principal sum of
_________________ Dollars ($______________) on [ ], 2007.
Interest Payment Dates: [ ] and [ ], commencing
[ ], 2002.
Record Dates: [ ] and [ ].
Dated: ______________, 20__.
A-1
IN WITNESS WHEREOF, the Company has caused this Note to be
signed manually or by facsimile by its duly authorized officer.
ARCH WIRELESS HOLDINGS, INC.
By:_________________________________________
Name:
Title:
This is one of the Global
Notes referred to in the
within-mentioned Indenture:
[ ],
as Trustee
By:________________________________
Authorized Signatory
Dated _____________, 20__
A-2
(Back of Note)
10% Senior Subordinated Secured Notes due 2007
Capitalized terms used herein shall have the meanings assigned
to them in the Indenture referred to below unless otherwise indicated.
1. INTEREST. Arch Wireless Holdings, Inc., a Delaware corporation (the
"COMPANY"), promises to pay interest on the principal amount of this Note at 10%
per annum until maturity. The Company shall pay interest semi-annually on
[ ] and [ ] of each year, or if any such day is not a
Business Day, on the next succeeding Business Day (each an "INTEREST PAYMENT
DATE"). Interest on the Notes shall accrue from the most recent date to which
interest has been paid or, if no interest has been paid, from the date of
original issuance; provided, however, that if there is no existing Default in
the payment of interest, and if this Note is authenticated between a record date
referred to on the face hereof and the next succeeding Interest Payment Date,
interest shall accrue from such next succeeding Interest Payment Date; provided,
further, that the first Interest Payment Date shall be the first of
[ ] or [ ] to occur after the date of issuance.
Interest will be computed on the basis of a 360-day year of twelve 30-day
months. If at any time an Event of Default has occurred and is continuing, the
Company shall pay interest on demand at a rate that is 2% per annum in excess of
the rate then in effect; it shall pay interest on overdue installments of
interest from time to time on demand at the same rate to the extent lawful.
2. METHOD OF PAYMENT. The Company shall pay interest on the Notes
(except defaulted interest) to the Persons who are Holders at the close of
business on the [ ] or [ ] next preceding the Interest Payment
Date, even if such Notes are cancelled after such record date and on or before
such Interest Payment Date, except as provided in Section 2.11 of the Indenture
with respect to defaulted interest. The Notes shall be payable as to principal,
premium, if any, and interest, if any, at the office or agency of the Company
maintained for such purpose, or, at the option of the Company, payment of
interest may be made by check mailed to the Holders at their addresses set forth
in the Note Register; provided, however, that payment by wire transfer of
immediately available funds shall be required with respect to principal of and
interest, if any, and premium, if any, on, all Global Notes and all other Notes
the Holders of which shall have provided wire transfer instructions to the
Company or the Paying Agent. Such payment shall be in such coin or currency of
the United States of America as at the time of payment is legal tender for
payment of public and private debts.
3. PAYING AGENT AND REGISTRAR. Initially, [ ],
the Trustee under the Indenture, shall act as Paying Agent and Registrar. The
Company may change any Paying Agent or Registrar without notice to any Holder.
The Company or any of its subsidiaries may act in any such capacity.
4. INDENTURE; SUBORDINATION. The Company issued the Notes under
an Indenture dated as of [ ], 2002 ("INDENTURE") among the Company, the
guarantors party thereto (the "GUARANTORS") and the Trustee. The terms of the
Notes include those stated in the Indenture and those made part of the Indenture
by reference to the Trust Indenture Act of 1939, as amended (15 U.S. Code
Sections 77aaa-77bbbb). The Notes are subject to all such terms, and Holders are
referred to the Indenture and such Act for a statement of such terms. To the
extent any provision of this Note conflicts with the express provisions of the
Indenture, the provisions of the Indenture shall govern and be controlling. The
Notes are obligations of the Company limited in aggregate principal amount to
$200,000,000.
The Notes are subordinated in right of payment, to the extent and in
the manner set forth in Article XIII of the Indenture, to the prior payment in
full in cash or Cash Equivalents of all Senior Debt, whether outstanding on the
date of the Indenture or thereafter created, incurred, assumed or guaranteed.
The Guarantees in respect of the Notes will be junior and subordinated in right
of payment, in the manner and to the extent set forth in the Indenture, to the
prior payment in full in cash or Cash Equivalents of all Senior Debt of each
Guarantor, whether outstanding on the date of the Indenture or thereafter
created, incurred assumed or guaranteed. Each Holder by its acceptance hereof
agrees to be bound by such provisions and authorizes and expressly directs the
Trustee, on its behalf, to take such action as may be necessary or appropriate
to effectuate the subordination provided for in the Indenture and appoints the
Trustee its attorney-in-fact for such purposes.
A-3
5. OPTIONAL REDEMPTION.
(a) The Notes will be redeemable at the election of the
Company, as a whole or from time to time in part, at any time on not less than
30 nor more than 60 days' prior notice, without premium or penalty, together
with accrued and unpaid interest to the Redemption Date (subject to the right of
holders of record on the relevant record dates to receive interest due on an
Interest Payment Date).
(c) Any prepayment pursuant to this paragraph shall be
made pursuant to the provisions of Sections 9.01 through 9.07 of the Indenture.
6. MANDATORY REDEMPTION.
(a) The Company shall redeem $15,000,000 of the Notes,
assuming such amount remains outstanding, on each Interest Payment Date.
(b) In the event and on each occasion that any Net Cash
Proceeds are received by or on behalf of the Company, on the next succeeding
Interest Payment Date, the Company shall redeem Notes in an amount equal to the
aggregate amount of such Net Cash Proceeds.
(c) On the date that is 10 days prior to each Interest Payment
Date, the Company shall calculate the Average Excess Cash. On each Interest
Payment Date, the Company shall redeem Notes in an amount equal to 100% of the
Average Excess Cash, if any.
7. REPURCHASE AT OPTION OF HOLDER.
Upon the occurrence of a Change of Control, each Holder shall have the
right to require the Company to repurchase all or any part (equal to $1,000 or
an integral multiple of $1,000) of such Holder's Notes (a "CHANGE OF CONTROL
OFFER") at a purchase price equal to 100% of the principal amount thereof, plus
accrued and unpaid interest, if any, to the purchase date (subject to the right
of Holders on the relevant record date to receive interest due on the relevant
Interest Payment Date).
8. NOTICE OF REDEMPTION. Notice of redemption shall be mailed at
least 30 days but not more than 60 days before the redemption date to each
Holder whose Notes are to be redeemed at its registered address. Notes in
denominations larger than $1,000 may be redeemed in part but only in whole
multiples of $1,000, unless all of the Notes held by a Holder are to be
redeemed. On and after the redemption date interest ceases to accrue on Notes or
portions thereof called for redemption.
9. DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in registered
form without coupons in denominations of $1,000 and integral multiples of
$1,000. The transfer of Notes may be registered and Notes may be exchanged as
provided in the Indenture. The Registrar and the Trustee may require a Holder,
among other things, to furnish appropriate endorsements and transfer documents,
and the Company may require a Holder to pay any taxes and fees required by law
or permitted by the Indenture. The Company need not exchange or register the
transfer of any Note or portion of a Note selected for redemption, except for
the unredeemed portion of any Note being redeemed in part. Also, the Company
need not exchange or register the transfer of any Notes for a period of 15 days
before a selection of Notes to be redeemed or during the period between a record
date and the corresponding Interest Payment Date.
10. PERSONS DEEMED OWNERS. The registered holder of a Note may be
treated as its owner for all purposes.
11. AMENDMENT, SUPPLEMENT AND WAIVER. Subject to certain
exceptions, the Indenture or the Notes may be amended or supplemented with the
consent of the Majority Noteholders, and any existing Default or Event of
Default or compliance with any provision of the Indenture or the Notes may be
waived with the consent of the Majority Noteholders. Without the consent of any
Holders, the Company, when authorized by a Board Resolution, and the Trustee, at
any time and from time to time, may enter into one or more indentures
supplemental hereto, in
A-4
form satisfactory to the Trustee, to evidence the succession of another Person
to the Company and the assumption by any such successor of the covenants of the
Company in the Indenture and in the Notes; to add to the covenants of the
Company for the benefit of the Holders, or to surrender any right or power
herein conferred upon the Company; to grant additional security for the Notes;
to cure any ambiguity, to correct or supplement any provision herein which may
be inconsistent with any other provision herein, 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 that such
action pursuant to this clause shall not adversely affect the interests of the
Holders in any material respect; to name any Agent, Depositary or Registrar in
accordance with the terms of the Indenture; to change the Trustee in accordance
with the terms of the Indenture; or to make any change to comply with any
requirement of the Commission in order to effect or maintain the qualification
of this Indenture under the TIA.
12. DEFAULTS AND REMEDIES. Each of the following is an Event of
Default under the Indenture (whatever the reason for such Event of Default and
whether it shall be voluntary or involuntary or be effected by operation of law
or pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any Governmental Authority): (1) default in the payment of any
interest on any Note when it becomes due and payable and such default continues
for a period of 5 days; (2) default in the payment of the principal of any Note
at its Maturity (including pursuant to Section 9.02 hereof); (3) the Parent or
any of the Subsidiaries shall fail to observe or perform any covenant, condition
or agreement contained in Sections 10.07, 10.08, 10.09, 10.10, 10.11, 10.12,
10.13, 10.14, 10.15, 10.16, 10.19, 10.20, 10.21, 10.22, 10.23, 10.24 or 10.25,
or any Note Party shall fail to observe or perform any covenant, condition or
agreement contained in the Security Documents to the extent it is a party
thereto; (4) any Note Party shall fail to observe or perform any covenant,
condition or agreement contained in any Note Document to which it is a party
(other than those specified in clause (a), (b) or (d) of Section 4.01 of the
Indenture), and such failure shall continue unremedied for 30 days after the
earlier of the date on which (A) a Responsible Officer of the Parent becomes
aware of such failure or (B) written notice thereof shall have been given to the
Parent by the Trustee or the Majority Noteholders; (5) (i) any Note Party shall
breach in any material respect any representation or warranty or agreement in
any of the Security Documents or in any certificates delivered in connection
therewith; (ii) the repudiation by any of them of any of their obligations under
any of the Security Documents; (iii) the unenforceability of the Security
Documents against any of them for any reason which shall continue unremedied for
30 days after the earlier of the date on which (A) a Responsible Officer of the
Parent becomes aware of such failure or (B) written notice thereof shall have
been given to the Parent by the Trustee or the Majority Noteholders; or (iv) the
loss of the perfection or priority of the Liens granted by any of them pursuant
to the Security Documents for any reason; (6) the Parent or any of the
Subsidiaries shall fail to make any payment (whether of principal or interest
and regardless of amount) in respect of any Material Obligations, when and as
the same shall become due and payable (after giving effect to any applicable
grace period); (7) any event or condition occurs that results in any Material
Obligations becoming due prior to their scheduled maturity or payment date, or
that enables or permits (with or without the giving of notice, the lapse of time
or both) the holder or holders of any Material Obligations or any trustee or
agent on its or their behalf to cause any Material Obligations to become due
prior to their scheduled maturity or payment date or to require the prepayment,
repurchase, redemption or defeasance thereof, prior to their scheduled maturity
or payment date (in each case after giving effect to any applicable cure
period); provided that this clause (7) shall not apply to secured Indebtedness
that becomes due solely as a result of the voluntary sale or transfer of the
property or assets securing such Indebtedness; (8) certain events of bankruptcy
or insolvency described in the Indenture with respect to the Parent or any of
the Subsidiaries; (9) one or more judgments for the payment of money in an
aggregate amount in excess of $1,000,000 shall be rendered against the Parent or
any of the Subsidiaries or any combination thereof (which shall not be fully
covered by insurance without taking into account any applicable deductibles) and
the same shall remain undischarged or unbonded for a period of 30 consecutive
days during which execution shall not be effectively stayed; (10) any Note
Document shall cease, for any reason, to be in full force and effect, or any
Note Party shall so assert in writing or shall disavow any of its obligations
thereunder or (11) an Event of Default under and as defined in the Junior
Indenture or any Credit Agreement shall have occurred.
If any Event of Default occurs and is continuing, the Trustee or the
Majority Noteholders may declare all the Notes to be due and payable.
Notwithstanding the foregoing, in the case of an Event of Default arising from
certain events of bankruptcy or insolvency, all outstanding Notes shall become
due and payable without further action or notice; provided, however, that so
long as any Senior Debt is outstanding, the acceleration shall not be effective
until the earlier of (i) an acceleration of any Senior Debt or (ii) five
Business Days after receipt by the Company of written notice of the acceleration
of the Notes. Holders may not enforce the Indenture except as
A-5
provided in the Indenture. Subject to certain limitations, the Majority
Noteholders may direct the Trustee in its exercise of any trust or power. The
Trustee may withhold from Holders notice of any continuing Default or Event of
Default (except a Default or Event of Default relating to the payment of
principal or interest) if it determines that withholding notice is in their
interest. The Majority Noteholders by notice to the Trustee may on behalf of the
Holders of all of the Notes waive any existing Default or Event of Default and
its consequences under the Indenture except a continuing Default or Event of
Default in the payment of interest on, or the principal of, the Notes. The
Company is required to deliver to the Trustee annually a statement regarding
compliance with the Indenture, and the Company is required upon becoming aware
of any Default or Event of Default, to deliver to the Trustee a statement
specifying such Default or Event of Default.
13. TRUSTEE DEALINGS WITH THE COMPANY. The Trustee, 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.
14. NO RECOURSE AGAINST OTHERS. No director, officer, employee,
incorporator or stockholder of the Company or of any Guarantor, as such, shall
have any liability for any obligations of the Company or any Guarantor under the
Indenture, the Notes, the Guarantees or for any claim based on, in respect of,
or by reason of, such obligations or their creation. Each Holder by accepting a
Note waives and releases all such liability. The waiver and release are part of
the consideration for the issuance of the Notes; such waiver may not be
effective to waive liabilities under the federal securities laws and it is the
view of the SEC that such a waiver is against public policy.
15. AUTHENTICATION. This Note shall not be valid until
authenticated by the manual signature of the Trustee or an authenticating agent.
16. ABBREVIATIONS. Customary abbreviations may be used in the name
of a Holder 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).
17. CUSIP NUMBERS. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Company has caused
CUSIP numbers to be printed on the Notes and the Trustee may use CUSIP numbers
in notices of redemption as a convenience to Holders. No representation is made
as to the accuracy of such numbers either as printed on the Notes or as
contained in any notice of redemption and reliance may be placed only on the
other identification numbers placed thereon.
The Company shall furnish to any Holder upon written request
and without charge a copy of the Indenture. Requests may be made to:
Arch Wireless Holdings, Inc.
0000 Xxxx Xxxx Xxxxx, Xxxxx 000
Xxxxxxxxxxx, Xxxxxxxxxxxxx 00000
Attention:
A-6
ASSIGNMENT FORM
To assign this Note, fill in the form below: (I) or (we) assign and transfer
this Note to
________________________________________________________________________________
(Insert assignee's soc. sec. or tax I.D. no.)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint_________________________________________________________
to transfer this Note on the books of the Company. The agent may substitute
another to act for him.
________________________________________________________________________________
Date: ______________
Your Signature:_____________________________
(Sign exactly as your name appears on the
face of this Note)
Signature Guarantee:________________________
A-7
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE
The following exchanges of a part of this Global Note for an
interest in another Global Note or for a Definitive Note, or exchanges of a part
of another Global Note or Definitive Note for an interest in this Global Note,
have been made:
Principal Amount
Amount of of this Global Note Signature of
decrease in Amount of increase following such authorized officer
Principal Amount in Principal Amount decrease (or of Trustee or
Date of Exchange of this Global Note of this Global Note increase) Note Custodian
---------------- ------------------- ------------------- --------- --------------
EXHIBIT B
FORM OF NOTATION OF GUARANTEE
For value received, each Guarantor (which term includes any
successor Person under the Indenture), jointly and severally, unconditionally
guarantees, to the extent set forth in the Indenture and subject to the
provisions in the Indenture, dated as of [ ], 2002 (the
"Indenture"), by and among Arch Wireless Holdings, Inc., a Delaware corporation
(the "COMPANY"), Arch Wireless Communications, Inc., a Delaware corporation
("ARCH"), Arch Wireless, Inc., a Delaware corporation (the "PARENT"), and the
subsidiaries of the Parent listed on Schedule I thereto (such subsidiaries, the
"SUBSIDIARY GUARANTORS," and together with Arch and the Parent, herein the
"GUARANTORS") and [ ], as Trustee (the "TRUSTEE"), (a) the due
and punctual payment of the principal of, premium, if any, and interest on the
Notes (as defined in the Indenture), whether at maturity, by acceleration,
redemption or otherwise, the due and punctual payment of interest on overdue
principal and premium, if any, and, to the extent permitted by law, interest,
and the due and punctual performance of all other obligations of the Company to
the Holders or the Trustee all in accordance with the terms of the Indenture and
(b) in case of any extension of time of payment or renewal of any Notes or any
of such other obligations, that the same will be promptly paid in full when due
or performed in accordance with the terms of the extension or renewal, whether
at stated maturity, by acceleration or otherwise. The obligations of the
Guarantors to the Holders of Notes and to the Trustee pursuant to the Guarantee
and the Indenture are expressly set forth in Article XII of the Indenture and
reference is hereby made to the Indenture for the precise terms of the
Guarantee. This Guarantee is subject to release as and to the extent set forth
in Sections 12.05 and 12.06 of the Indenture. This Guarantee is subordinated in
right of payment to the extent set forth in the Indenture. Each Holder of a
Note, by accepting the same agrees to and shall be bound by such provisions.
[GUARANTORS]
By: _____________________________________
Name:
Title:
