DRAFT
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ALAMOSA (DELAWARE), INC.
11% Senior Notes due 2010
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INDENTURE
Dated as of [_______] [__], 2003
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XXXXX FARGO BANK MINNESOTA, N.A.,
Trustee
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TABLE OF CONTENTS
Page
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ARTICLE I
Definitions and Incorporation by Reference
SECTION 1.01. Definitions .................................................1
SECTION 1.02. Other Definitions.............................................26
SECTION 1.03. Incorporation by Reference of Trust Indenture Act.............27
SECTION 1.04. Rules of Construction.........................................28
ARTICLE II
The Securities
SECTION 2.01. Form and Dating...............................................28
SECTION 2.02. Execution and Authentication..................................29
SECTION 2.03. Registrar and Paying Agent....................................29
SECTION 2.04. Paying Agent To Hold Money in Trust...........................30
SECTION 2.05. Securityholder Lists..........................................30
SECTION 2.06. Replacement Securities........................................30
SECTION 2.07. Outstanding Securities........................................30
SECTION 2.08. Temporary Securities..........................................31
SECTION 2.09. Cancellation ................................................31
SECTION 2.10. Defaulted Interest............................................31
SECTION 2.11. CUSIP Numbers ................................................31
ARTICLE III
Redemption
SECTION 3.01. Notices to Trustee............................................31
SECTION 3.02. Selection of Securities To Be Redeemed........................32
SECTION 3.03. Notice of Redemption..........................................32
SECTION 3.04. Effect of Notice of Redemption................................32
SECTION 3.05. Deposit of Redemption Price...................................33
SECTION 3.06. Securities Redeemed in Part...................................33
ARTICLE IV
Covenants
SECTION 4.01. Payment of Securities.........................................33
SECTION 4.02. Commission Reports............................................33
SECTION 4.03. Limitation on Debt............................................34
SECTION 4.04. Limitation on Restricted Payments.............................36
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SECTION 4.05. Limitation on Liens...........................................39
SECTION 4.06. Limitation on Issuance or Sale of Capital Stock of
Restricted Subsidiaries...................................39
SECTION 4.07. Limitation on Asset Sales.....................................40
SECTION 4.08. Limitation on Restrictions on Distributions from
Restricted Subsidiaries...................................43
SECTION 4.09. Limitation on Transactions with Affiliates....................45
SECTION 4.10. Limitation on Layered Debt....................................46
SECTION 4.11. Designation of Restricted and Unrestricted Subsidiaries.......46
SECTION 4.12. Limitation on Sale and Leaseback Transactions.................47
SECTION 4.13. Limitation on Company's Business..............................48
SECTION 4.14. Change of Control.............................................48
SECTION 4.15. Future Subsidiary Guarantors..................................49
SECTION 4.16. Compliance Certificate........................................49
SECTION 4.17. OID Certificate...............................................50
SECTION 4.18. Information Reporting.........................................50
ARTICLE V
Successor Company
SECTION 5.01. When Company May Merge or Transfer Assets.....................50
SECTION 5.02. When a Subsidiary Guarantor May Merge or Transfer Assets......52
ARTICLE VI
Defaults and Remedies
SECTION 6.01. Events of Default.............................................53
SECTION 6.02. Acceleration ................................................55
SECTION 6.03. Other Remedies................................................55
SECTION 6.04. Waiver of Past Defaults.......................................56
SECTION 6.05. Control by Majority...........................................56
SECTION 6.06. Limitation on Suits...........................................56
SECTION 6.07. Rights of Holders To Receive Payment..........................56
SECTION 6.08. Collection Suit by Trustee....................................57
SECTION 6.09. Trustee May File Proofs of Claim..............................57
SECTION 6.10. Priorities ................................................57
SECTION 6.11. Undertaking for Costs.........................................57
SECTION 6.12. Waiver of Stay or Extension Laws..............................57
ARTICLE VII
Trustee
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SECTION 7.01. Duties of Trustee.............................................58
SECTION 7.02. Rights of Trustee.............................................59
SECTION 7.03. Individual Rights of Trustee..................................59
SECTION 7.04. Trustee's Disclaimer..........................................60
SECTION 7.05. Notice of Defaults............................................60
SECTION 7.06. Reports by Trustee to Holders.................................60
SECTION 7.07. Compensation and Indemnity....................................60
SECTION 7.08. Replacement of Trustee........................................61
SECTION 7.09. Successor Trustee by Merger...................................62
SECTION 7.10. Eligibility; Disqualification.................................62
SECTION 7.11. Preferential Collection of Claims Against Company.............62
ARTICLE VIII
Discharge of Indenture; Defeasance
SECTION 8.01. Discharge of Liability on Securities; Defeasance..............63
SECTION 8.02. Conditions to Defeasance......................................64
SECTION 8.03. Application of Trust Money....................................65
SECTION 8.04. Repayment to Company..........................................65
SECTION 8.05. Indemnity for Government Obligations..........................65
SECTION 8.06. Reinstatement ................................................65
ARTICLE IX
Amendments
SECTION 9.01. Without Consent of Holders....................................66
SECTION 9.02. With Consent of Holders.......................................66
SECTION 9.03. Compliance with Trust Indenture Act...........................68
SECTION 9.04. Revocation and Effect of Consents and Waivers.................68
SECTION 9.05. Notation on or Exchange of Securities.........................68
SECTION 9.06. Trustee To Sign Amendments....................................68
SECTION 9.07. Payment for Consent...........................................69
ARTICLE X
Subsidiary Guarantees
SECTION 10.01. Subsidiary Guarantees........................................69
SECTION 10.02. Contribution ................................................71
SECTION 10.03. Successors and Assigns.......................................71
SECTION 10.04. No Waiver....................................................71
SECTION 10.05. Modification ................................................71
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SECTION 10.06. Execution of Supplemental Indenture for Future
Subsidiary Guarantors...................................71
ARTICLE XI
Subordination of Subsidiary Guarantees
SECTION 11.01. Agreement To Subordinate.....................................72
SECTION 11.02. Liquidation, Dissolution, Bankruptcy.........................72
SECTION 11.03. Default on Designated Senior Debt of Subsidiary Guarantor....72
SECTION 11.04. Demand for Payment...........................................73
SECTION 11.05. When Distribution Must Be Paid Over..........................73
SECTION 11.06. Subrogation ................................................73
SECTION 11.07. Relative Rights..............................................74
SECTION 11.08. Subordination May Not Be Impaired by Subsidiary Guarantor....74
SECTION 11.09. Rights of Trustee and Paying Agent...........................74
SECTION 11.10. Distribution or Notice to Representative.....................74
SECTION 11.11. Article XI Not To Prevent Events of Default Under a
Subsidiary Guaranty or Limit Right To Demand Payment....74
SECTION 11.12. Trustee Entitled To Rely.....................................75
SECTION 11.13. Trustee To Effectuate Subordination..........................75
SECTION 11.14. Trustee Not Fiduciary for Holders of Designated Senior
Debt of Subsidiary Guarantor............................75
SECTION 11.15. Reliance by Holders of Designated Senior Debt on
Subordination Provisions................................75
ARTICLE XII
Miscellaneous
SECTION 12.01. Trust Indenture Act Controls.................................76
SECTION 12.02. Notices ................................................76
SECTION 12.03. Communication by Holders with Other Holders..................77
SECTION 12.04. Certificate and Opinion as to Conditions Precedent...........77
SECTION 12.05. Statements Required in Certificate or Opinion................77
SECTION 12.06. When Securities Disregarded..................................78
SECTION 12.07. Rules by Trustee, Paying Agent and Registrar.................78
SECTION 12.08. Legal Holidays...............................................78
SECTION 12.09. Governing Law................................................78
SECTION 12.10. No Recourse Against Others...................................78
SECTION 12.11. Successors ................................................78
SECTION 12.12. Multiple Originals...........................................78
SECTION 12.13. Table of Contents; Headings..................................78
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Appendix A Provisions Relating to Securities
Exhibit 1 Form of Security
Appendix B Form of Supplemental Indenture
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CROSS-REFERENCE TABLE
TIA Indenture
Section Section
------- -------
310(a)(1)................................................................7.10
(a)(2).................................................................7.10
(a)(3).................................................................N.A.
(a)(4).................................................................N.A.
(b) ...........................................................7.08; 7.10
(c) .................................................................N.A.
311(a) ................................................................7.11
(b) .................................................................7.11
(c) .................................................................N.A.
312(a) ................................................................2.05
(b) .................................................................12.03
(c) .................................................................12.03
313(a) ................................................................7.06
(b)(1).................................................................N.A.
(b)(2).................................................................7.06
(c) .................................................................12.02
(d) .................................................................7.06
314(a) ....................................................4.02; 4.16; 12.02
(b) .................................................................N.A.
(c)(1).................................................................12.04
(c)(2)................................................................ 12.04
(c)(3).................................................................N.A.
(d) .................................................................N.A.
(e) .................................................................12.05
(f) .................................................................4.16
315(a) ................................................................7.01
(b) ...........................................................7.05; 12.02
(c) .................................................................7.01
(d) .................................................................7.01
(e) .................................................................6.11
316(a)
(last sentence)........................................................12.06
(a)(1)(A)..............................................................6.05
(a)(1)(B)..............................................................6.04
(a)(2).................................................................N.A.
(b) .................................................................6.07
317(a)(1)................................................................6.08
(a)(2).................................................................6.09
(b) .................................................................2.04
318(a) ..................................................................12.01
N.A. Means Not Applicable.
Note: This Cross-Reference Table shall not, for any purposes, be deemed to be
part of this Indenture.
vi
INDENTURE dated as of [ ][ ], 2003, among, Alamosa
(Delaware), Inc., a Delaware corporation (the "Company"), the
Subsidiary Guarantors party hereto (collectively, the "Subsidiary
Guarantors") and Xxxxx Fargo Bank Minnesota, N.A., a national
banking association, as Trustee (the "Trustee").
The Company has duly authorized the creation of an issue of 11% Senior
Notes due 2010 and, to provide therefor, the Company has duly authorized the
execution and delivery of this Indenture. Each party agrees as follows for the
benefit of the other parties and for the equal and ratable benefit of the
Holders of the Securities:
ARTICLE I
Definitions and Incorporation by Reference
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SECTION 1.01. Definitions.
"Acquired Debt" means, with respect to any specified Person, (1) Debt
of any other Person existing at the time such other Person is merged with or
into or becomes a Subsidiary of or transfers all or substantially all of its
assets to such specified Person, which is not Incurred in connection with, or in
contemplation of, such other Person merging with or into, or becoming a
Subsidiary of, or transferring all or substantially all of its assets to, such
specified Person, and (2) Debt secured by a Lien encumbering any asset acquired
by such specified Person.
"Additional Assets" means:
(a) any Property (other than cash, cash equivalents and securities) to
be owned by the Company or any Restricted Subsidiary and used in a
Telecommunications Business; or
(b) Capital Stock of a Person that becomes a Restricted Subsidiary as a
result of the acquisition of such Capital Stock by the Company or another
Restricted Subsidiary from any Person other than the Company or an
Affiliate of the Company; provided, however, that, in the case of this
clause (b), such Restricted Subsidiary is primarily engaged in a
Telecommunications Business.
"Affiliate" of any specified Person means:
(a) any other Person directly or indirectly controlling or controlled
by or under direct or indirect common control with such specified Person,
or
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(b) any other Person who is a director or officer of:
(1) such specified Person,
(2) any Subsidiary of such specified Person, or
(3) any Person described in clause (a) above.
For the purposes of this definition, "control" when used with respect to any
Person means the power to direct the management and policies of such Person,
directly or indirectly, whether through the ownership of voting securities, by
contract or otherwise; and the terms "controlling" and "controlled" have
meanings correlative to the foregoing. For purposes of Sections 4.07 and 4.09
and the definition of "Additional Assets" only, "Affiliate" shall also mean any
beneficial owner of shares representing 10% or more of the total voting power of
the Voting Stock (on a fully diluted basis) of the Company or of rights or
warrants to purchase such Voting Stock (whether or not currently exercisable)
and any Person who would be an Affiliate of any such beneficial owner pursuant
to the first sentence hereof.
"Annualized Pro Forma EBITDA" means, as of any date of determination,
the product of Pro Forma EBITDA of the Company and its consolidated Restricted
Subsidiaries for the Company's two most recently completed fiscal quarters for
which financial statements are available prior to such determination date
multiplied by two.
"Asset Sale" means any sale, lease, transfer, issuance or other
disposition (or series of related sales, leases, transfers, issuances or
dispositions) by the Company or any Restricted Subsidiary, including any
disposition by means of a merger, consolidation or similar transaction (each
referred to for the purposes of this definition as a "disposition"), of:
(a) any shares of Capital Stock of a Restricted Subsidiary (other than
directors' qualifying shares), or
(b) any other assets of the Company or any Restricted Subsidiary
outside of the ordinary course of business of the Company or such
Restricted Subsidiary,
other than, in the case of clause (a) or (b) above,
(1) any disposition by a Restricted Subsidiary to the Company or by the
Company or a Restricted Subsidiary to a Wholly Owned Restricted Subsidiary,
(2) any disposition that constitutes a Permitted Investment or
Restricted Payment permitted by Section 4.04,
(3) any disposition effected in compliance with Section 5.01, and
(4) any disposition of assets having an aggregate Fair Market Value of,
and for which the aggregate consideration received by the Company and its
Restricted Subsidiaries is equal to, $1.0 million or less in any 12-month
period.
2
"Attributable Debt" in respect of a Sale and Leaseback Transaction
means, at any date of determination,
(a) if such Sale and Leaseback Transaction is a Capital Lease
Obligation, the amount of Debt represented thereby according to the
definition of "Capital Lease Obligation," and
(b) in all other instances, the present value (discounted at the
interest rate borne by the Securities, compounded annually) of the total
obligations of the lessee for rental payments during the remaining term of
the lease included in such Sale and Leaseback Transaction (including any
period for which such lease has been extended).
"Average Life" means, as of any date of determination, with respect to
any Debt or Preferred Stock, the quotient obtained by dividing:
(a) the sum of the product of the numbers of years (rounded to the
nearest one-twelfth of one year) from the date of determination to the
dates of each successive scheduled principal payment of such Debt or
redemption or similar payment with respect to such Preferred Stock
multiplied by the amount of such payment, by
(b) the sum of all such payments.
"Beneficial Owner" has the meaning given to such term under Rule 13d-3
under the Exchange Act, except that a Person will be deemed to have
"beneficial ownership" of all shares that any such person has the right to
acquire, whether such right is exercisable immediately or only after the
passage of time.
"Board of Directors" means the Board of Directors of the Company (or,
in the case of clause (b) of the first paragraph of Section 4.09, the applicable
Restricted Subsidiary) or any committee thereof duly authorized to act on behalf
of such Board of Directors.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification.
"Business Day" means each day that is not a Legal Holiday.
"Capital Lease Obligations" means any obligation under a lease that is
required to be capitalized for financial reporting purposes in accordance with
GAAP; and the amount of Debt represented by such obligation shall be the
capitalized amount of such obligations determined in accordance with GAAP; and
the Stated Maturity thereof shall be the date of the last payment of rent or any
other amount due under such lease prior to the first date upon which such lease
may be terminated by the lessee without payment of a penalty. For purposes of
Section 4.05, a Capital Lease Obligation shall be deemed secured by a Lien on
the Property being leased.
3
"Capital Stock" means, with respect to any Person, any shares or other
equivalents (however designated) of any class of corporate stock or partnership
or limited liability company interests or any other participations, rights,
warrants, options or other interests in the nature of an equity interest in such
Person, including Preferred Stock, but excluding any debt security convertible
or exchangeable into such equity interest.
"Capital Stock Sale Proceeds" means the aggregate cash proceeds
received by the Company (or received by any direct or indirect parent Person of
the Company and subsequently contributed to the Company) from the issuance or
sale (other than to a Subsidiary of the Company or an employee stock ownership
plan or trust established by the Company or any such Subsidiary for the benefit
of their employees) by the Company or any direct or indirect parent Person of
the Company of Capital Stock (other than Disqualified Stock) of the Company or
such parent Person after the Issue Date, net of attorney's fees, accountants'
fees, underwriters' or placement agents' fees, discounts or commissions and
brokerage, consultant and other fees actually incurred by the Company or any
Restricted Subsidiary of the Company in connection with such issuance or sale
and net of taxes paid or payable as a result thereof.
"Change of Control" means the occurrence of any of the following
events:
(1) the sale, transfer, assignment, lease, conveyance or other
disposition, other than by way of merger or consolidation, in one or a
series of related transactions, of all or substantially all of the assets
of the Company and its Restricted Subsidiaries taken as a whole to any
"person" or "group" as such terms are used in Section 13(d)(3) of the
Exchange Act, other than any such disposition to a Wholly Owned Restricted
Subsidiary;
(2) the adoption of a plan relating to the liquidation or dissolution
of the Company;
(3) any "person" or "group" (as defined above), other than a Permitted
Holder, becomes the Beneficial Owner, directly or indirectly, of more than
50.0% of the total voting power of the Voting Stock of the Company (or any
direct or indirect parent company thereof);
(4) during any period of two consecutive years, individuals who at the
beginning of such period constituted the Board of Directors (together with
any new directors whose election or appointment by such Board of Directors
or whose nomination for election by the shareholders of the Company was
approved by a vote of not less than a majority of the directors then still
in office who were either directors at the beginning of such period or
whose election or nomination for election was previously so approved) cease
for any reason to constitute a majority of the Board of Directors then in
office; or
(5) the Company or any direct or indirect parent company thereof
consolidates with, or merges with or into, any Person, or any Person
consolidates with, or merges with or into, the Company or any direct or
indirect parent company thereof, in any such event pursuant to a
transaction in which any of the outstanding Voting Stock of the Company or
any direct or indirect parent
4
company thereof is converted into or exchanged for cash, securities or
other property, other than any such transaction where the Capital Stock of
the Company or such direct or indirect parent company outstanding
immediately prior to such transaction is converted into or exchanged for
Voting Stock, other than Disqualified Stock, of the surviving or transferee
Person (or its ultimate parent Person) constituting at least a majority of
the total voting power of the Voting Stock of such surviving or transferee
Person (or such ultimate parent Person) immediately after giving effect to
such transaction.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commission" means the U.S. Securities and Exchange Commission.
"Commodity Price Protection Agreement" means, in respect of a Person,
any forward contract, commodity swap agreement, commodity option agreement or
other similar agreement or arrangement designed to protect such Person against
fluctuations in commodity prices.
"Company" means the party named as such in this Indenture until a
successor replaces it pursuant to the applicable provisions hereof and,
thereafter, means the successor and, for purposes of any provision contained
herein and required by the TIA, each other obligor on the indenture securities.
"Consolidated Interest Expense" means, for any period, the total
interest expense of the Company and its consolidated Restricted Subsidiaries,
plus, to the extent not included in such total interest expense, and to the
extent Incurred by the Company or its Restricted Subsidiaries,
(a) interest expense attributable to leases constituting part of a Sale
and Leaseback Transaction and to Capital Lease Obligations,
(b) amortization of debt discount and debt issuance cost, including
commitment fees,
(c) capitalized interest,
(d) non-cash interest expense,
(e) commissions, discounts and other fees and charges owed with respect
to letters of credit and bankers' acceptance financing,
(f) net costs associated with Hedging Obligations (including
amortization of fees),
(g) Preferred Stock Dividends,
(h) interest Incurred in connection with Investments in discontinued
operations,
5
(i) interest accruing on any Debt of any other Person to the extent
such Debt is Guaranteed by the Company or any Restricted Subsidiary or is
secured by any Liens on the Property of the Company or any Restricted
Subsidiary, and
(j) the cash contributions to any employee stock ownership plan or
similar trust to the extent such contributions are used by such plan or
trust to pay interest or fees to any Person (other than the Company) in
connection with Debt Incurred by such plan or trust.
"Consolidated Net Income" means, for any period, the net income (loss)
of the Company and its consolidated Subsidiaries, on a consolidated basis,
determined in accordance with GAAP; provided, however, that there shall not be
included in such Consolidated Net Income:
(a) any net income (loss) of any Person (other than the Company) if
such Person is not a Restricted Subsidiary, except that:
(1) subject to the exclusion contained in clause (d) below, the
Company's equity in the net income of any such Person for such period
shall be included in such Consolidated Net Income up to the aggregate
amount of cash distributed by such Person during such period to the
Company or a Restricted Subsidiary as a dividend or other distribution
(subject, in the case of a dividend or other distribution to a
Restricted Subsidiary, to the limitations contained in clause (c)
below), and
(2) the Company's equity in a net loss of any such Person other
than an Unrestricted Subsidiary or a Person as to which the Company is
not, and under no circumstances would be, obligated to make any
additional Investment, for such period shall be included in determining
such Consolidated Net Income,
(b) for purposes of Section 4.04 only, any net income (loss) of any
Person acquired by the Company or any of its consolidated Subsidiaries in a
pooling of interests transaction for any period prior to the date of such
acquisition,
(c) any net income (loss) of any Restricted Subsidiary that is not a
Subsidiary Guarantor if such Restricted Subsidiary is subject to
restrictions, directly or indirectly, on the payment of dividends or the
making of distributions, directly or indirectly, to the Company, except
that:
(1) subject to the exclusion contained in clause (d) below, the
Company's equity in the net income of any such Restricted Subsidiary
for such period shall be included in such Consolidated Net Income up to
the aggregate amount of cash distributed by such Restricted Subsidiary
during such period to the Company or another Restricted Subsidiary as a
dividend or other distribution (subject, in the case of a dividend or
other distribution to another Restricted Subsidiary, to the limitation
contained in this clause), and
6
(2) the Company's equity in a net loss of any such Restricted
Subsidiary for such period shall be included in determining such
Consolidated Net Income,
(d) any gain or loss realized upon the sale or other disposition of any
Property of the Company or any of its consolidated Subsidiaries (including
pursuant to any Sale and Leaseback Transaction) that is not sold or
otherwise disposed of in the ordinary course of business,
(e) any extraordinary gain or loss,
(f) the cumulative effect of a change in accounting principles, and
(g) any non-cash compensation expense realized for grants of
performance shares, stock options or other rights to officers, directors
and employees of the Company or any Restricted Subsidiary, provided that
such shares, options or other rights can be redeemed at the option of the
holder only for Capital Stock of the Company (other than Disqualified
Stock).
Notwithstanding the foregoing, for purposes of Section 4.04 only, there shall be
excluded from Consolidated Net Income any dividends, repayments of loans or
advances or other transfers of assets from Unrestricted Subsidiaries to the
Company or a Restricted Subsidiary to the extent such dividends, repayments or
transfers increase the amount of Restricted Payments permitted under clause
(c)(4) of the first paragraph of Section 4.04.
"Credit Facilities" means, with respect to the Company or any
Restricted Subsidiary, one or more debt facilities (including the Senior Secured
Credit Facility), commercial paper facilities, indentures or other agreements,
in each case with vendors, banks, life insurance companies, mutual funds,
pension funds or other institutional lenders or trustees or investors providing
for revolving credit loans, term loans, receivables or inventory financing
(including through the sale of receivables or inventory to such lenders or to
special purpose, bankruptcy remote entities formed to borrow from such lenders
against such receivables or inventory), notes or letters of credit, in each case
together with all documents related thereto (including, without limitation, any
guaranty agreements and security documents), as any of the same may be amended
(including any amendment and restatement thereof), supplemented or otherwise
modified from time to time, including any refinancing, replacing (whether or not
contemporaneously) or other restructuring of all or any portion of the
Indebtedness under such agreement or any successor or replacement agreements and
whether by the same or any other agent, lender or group of lenders or investors
and whether such refinancing or replacement is under one or more of the types of
facilities, indentures or other agreements described above.
"Cumulative EBITDA" means, as of any date of determination, the
cumulative EBITDA of the Company and its consolidated Restricted Subsidiaries
from and after the last day of the fiscal quarter of the Company immediately
preceding the Issue Date to the end of the fiscal quarter immediately preceding
the date of determination or, if such cumulative EBITDA for such period is
negative, the amount (expressed as a negative number) by which such cumulative
EBITDA is less than zero.
7
"Cumulative Interest Expense" means, at any date of determination, the
aggregate amount of Consolidated Interest Expense paid, accrued or scheduled to
be paid or accrued from the last day of the fiscal quarter of the Company
immediately preceding the Issue Date to the end of the fiscal quarter
immediately preceding the date of determination.
"Currency Exchange Protection Agreement" means, in respect of a Person,
any foreign exchange contract, currency swap agreement, currency option or other
similar agreement or arrangement designed to protect such Person against
fluctuations in currency exchange rates.
"CVR" means the contingent value rights issued pursuant to the
Contingent Value Rights Agreement, dated as of [ ] [ ], 2003, by and among the
Company, Alamosa Holdings, Inc. and [_______________], (the "CVR Agreement").
"Debt" means, with respect to any Person on any date of determination
(without duplication):
(a) the principal of and premium (if any) in respect of:
(1) debt of such Person for money borrowed, and
(2) debt evidenced by notes, debentures, bonds or other similar
instruments for the payment of which such Person is responsible or
liable;
(b) all Capital Lease Obligations of such Person and all Attributable
Debt in respect of Sale and Leaseback Transactions entered into by such
Person;
(c) all obligations of such Person issued or assumed as the deferred
purchase price of Property, all conditional sale obligations of such Person
and all obligations of such Person under any title retention agreement (but
excluding trade accounts payable arising in the ordinary course of
business);
(d) all obligations of such Person for the reimbursement of any obligor
on any letter of credit, banker's acceptance or similar credit transaction
(other than obligations with respect to letters of credit securing
obligations (other than obligations described in (a) through (c) above)
entered into in the ordinary course of business of such Person to the
extent such letters of credit are not drawn upon or, if and to the extent
drawn upon, such drawing is reimbursed no later than the third Business Day
following receipt by such Person of a demand for reimbursement following
payment on the letter of credit);
(e) the amount of all obligations of such Person with respect to the
Repayment of any Disqualified Stock or, with respect to any Subsidiary of
such Person, any Preferred Stock (but excluding, in each case, any accrued
dividends);
(f) all obligations of the type referred to in clauses (a) through (e)
of other Persons and all dividends of other Persons for the payment of
which, in either
8
case, such Person is responsible or liable, directly or indirectly, as
obligor, guarantor or otherwise, including by means of any Guarantee;
(g) all obligations of the type referred to in clauses (a) through (f)
of other Persons secured by any Lien on any Property of such Person
(whether or not such obligation is assumed by such Person), the amount of
such obligation being deemed to be the lesser of the value of such Property
or the amount of the obligation so secured; and
(h) to the extent not otherwise included in this definition, Hedging
Obligations of such Person.
The amount of Debt of any Person at any date shall be the outstanding balance at
such date of all unconditional obligations as described above and the maximum
liability, upon the occurrence of the contingency giving rise to the obligation,
of any contingent obligations at such date. The amount of Debt represented by a
Hedging Obligation shall be equal to:
(1) zero if such Hedging Obligation has been Incurred pursuant to
clause (e) of the second paragraph of Section 4.03, or
(2) the notional amount of such Hedging Obligation if not Incurred
pursuant to such clause.
"Default" means any event which is, or after notice or passage of time
or both would be, an Event of Default.
"Designated Senior Debt" of any Subsidiary Guarantor means all
obligations consisting of the principal, premium, if any, accrued and unpaid
interest (including interest accruing on or after the filing of any petition in
bankruptcy or for reorganization relating to the applicable Subsidiary Guarantor
to the extent post-filing interest is allowed in such proceeding) and all other
monetary obligations (including commitment fees, facilities fees, reimbursable
expenses, indemnities and costs of collection (including reasonable attorney's
fees)) payable or performable in connection with such obligations, whether
outstanding on the date hereof or created or incurred after the date hereof in
respect of Credit Facilities (including Permitted Refinancing Debt in respect
thereof).
"Disqualified Stock" means, with respect to any Person, any Capital
Stock that by its terms (or by the terms of any security into which it is
convertible or for which it is exchangeable, in either case at the option of the
holder thereof) or otherwise:
(a) matures or is mandatorily redeemable pursuant to a sinking fund
obligation or otherwise,
(b) is or may become redeemable or repurchaseable at the option of the
holder thereof, in whole or in part, or
9
(c) is convertible or exchangeable at the option of the holder thereof
for Debt or Disqualified Stock,
on or prior to, in the case of clause (a), (b) or (c), the first anniversary of
the Stated Maturity of the Securities; provided, however, that Capital Stock
will not be deemed to be Disqualified Stock if it is redeemable by exchange for
or through the issuance of Capital Stock (other than Disqualified Stock) of that
issuer; and provided further, however, that any Capital Stock that would not
constitute Disqualified Stock but for the provisions thereof giving Holders
thereof the right to require such Person to repurchase or redeem such Capital
Stock upon the occurrence of an Asset Sale or Change of Control occurring prior
to the Stated Maturity of the Securities shall not constitute Disqualified Stock
if the Asset Sale or Change of Control provisions applicable to such Capital
Stock are no more favorable to the Holders of such Capital Stock than the
covenants set forth in Section 4.07 and Section 4.14 and such Capital Stock
specifically provides that:
(1) such Person shall not repurchase or redeem any such Capital Stock
pursuant to such provisions prior to such Person having repurchased all the
Securities that are required to be repurchased pursuant to Section 4.07 or
Section 4.14 and
(2) no default, event of default or similar occurrence under the terms
of such Capital Stock shall result from such Person not so repurchasing or
redeeming any such Capital Stock because of the prohibition described in
the preceding clause (1).
"Domestic Restricted Subsidiary" means any Restricted Subsidiary other
than (a) a Foreign Restricted Subsidiary, or (b) a Subsidiary of a Foreign
Restricted Subsidiary.
"EBITDA" means, for any period, an amount equal to, for the Company and
its consolidated Restricted Subsidiaries:
(a) the sum of Consolidated Net Income for such period, plus the
following to the extent such amount was deducted in calculating such
Consolidated Net Income for such period:
(1) the provision for taxes based on income or profits or
utilized in computing net loss,
(2) Consolidated Interest Expense,
(3) depreciation,
(4) amortization of intangibles, and
(5) any other non-cash items (other than any such non-cash item
to the extent that it represents an accrual of or reserve for cash
expenditures in any future period), minus
10
(b) all non-cash items increasing Consolidated Net Income for such
period (other than any such non-cash item to the extent that it will result
in the receipt of cash payments in any future period).
Notwithstanding the foregoing clause (a), the provision for taxes and the
depreciation, amortization and non-cash items of a Restricted Subsidiary that is
not a Subsidiary Guarantor shall be added to Consolidated Net Income to compute
EBITDA only to the extent (and in the same proportion) that the net income of
such Restricted Subsidiary was included in calculating Consolidated Net Income
and only if a corresponding amount would be permitted at the date of
determination to be dividended to the Company by such Restricted Subsidiary
without prior approval (that has not been obtained), pursuant to the terms of
its charter and all agreements, instruments, judgments, decrees, orders,
statutes, rules and governmental regulations applicable to such Restricted
Subsidiary or its shareholders.
"Event of Termination" means any event described in (i) Section 11.3 of
any Management Agreement, or (ii) Section 13.2 of any License Agreement.
"Exchange Act" means the Securities Exchange Act of 1934.
"Exchange Offers" has the meaning assigned to such term in the Combined
Offering Circular, Consent Solicitation and Disclosure Statement Soliciting
Acceptances of a Prepackaged Plan of Reorganization of the Company and Alamosa
Holdings, Inc., dated as of September __, 2003, as amended or supplemented from
time to time.
"Existing Notes" means, collectively, the (a) 12-1/2% Senior Notes due
2011 of the Company issued pursuant to the Indenture, dated as of January 31,
2001, by and among the Company, the Subsidiary Guarantors party thereto and
Xxxxx Fargo Bank Minnesota, N.A., as trustee, (b) 13-5/8% Senior Notes due 2011
of the Company issued pursuant to the Indenture, dated as of August 15, 2001, by
and among the Company, the Subsidiary Guarantors party thereto and Xxxxx Fargo
Bank Minnesota, N.A., as trustee, and (c) 12-7/8% Senior Discount Notes due 2010
of the Company issued pursuant to the Indenture, dated as of February 8, 2000,
by and among the Company, the Subsidiary Guarantors party thereto and Norwest
Bank Minnesota, N.A., as trustee, as such indentures referred to in clauses (a)
through (c) may be amended, supplemented or otherwise modified from time to
time.
"Fair Market Value" means, with respect to any Property, the price that
could be negotiated in an arm's-length free market transaction, for cash,
between a willing seller and a willing buyer, neither of whom is under undue
pressure or compulsion to complete the transaction. Fair Market Value shall be
determined, except as otherwise provided,
(a) if such Property has a Fair Market Value equal to or less than
$15.0 million, by any Officer of the Company, or
11
(b) if such Property has a Fair Market Value in excess of $15.0
million, by a majority of the Board of Directors and evidenced by a Board
Resolution, dated within 30 days of the relevant transaction, delivered to
the Trustee.
"Foreign Restricted Subsidiary" means any Restricted Subsidiary which
is not organized under the laws of the United States of America or any State
thereof or the District of Columbia.
"GAAP" means United States generally accepted accounting principles as
in effect on the Issue Date, including those set forth:
(a) in the opinions and pronouncements of the Accounting Principles
Board of the American Institute of Certified Public Accountants,
(b) in the statements and pronouncements of the Financial Accounting
Standards Board,
(c) in such other statements by such other entity as approved by a
significant segment of the accounting profession, and
(d) the rules and regulations of the Commission governing the inclusion
of financial statements (including pro forma financial statements) in
periodic reports required to be filed pursuant to Section 13 of the
Exchange Act, including opinions and pronouncements in staff accounting
bulletins and similar written statements from the accounting staff of the
Commission.
"Guarantee" means any obligation, contingent or otherwise, of any
Person directly or indirectly guaranteeing any Debt of any other Person and any
obligation, direct or indirect, contingent or otherwise, of such Person:
(a) to purchase or pay (or advance or supply funds for the purchase or
payment of) such Debt of such other Person (whether arising by virtue of
partnership arrangements, or by agreements to keep-well, to purchase
assets, goods, securities or services, to take-or-pay or to maintain
financial statement conditions or otherwise), or
(b) entered into for the purpose of assuring in any other manner the
obligee against loss in respect thereof (in whole or in part);
provided, however, that the term "Guarantee" shall not include:
(1) an endorsement for collection or deposit in the ordinary course of
business, or
(2) a contractual commitment by one Person to invest in another Person
for so long as such Investment is reasonably expected to constitute a
Permitted Investment under clause (b) of the definition of "Permitted
Investment".
12
The term "Guarantee" used as a verb has a corresponding meaning. The term
"Guarantor" shall mean any Person Guaranteeing any obligation.
"Hedging Obligations" of any Person means any obligation of such Person
pursuant to any Interest Rate Agreement, Currency Exchange Protection Agreement,
Commodity Price Protection Agreement or any other similar agreement or
arrangement.
"Holder" or "Securityholder" means the Person in whose name a Security
is registered on the Security register described in Section 2.03.
"Incur" means, with respect to any Debt or other obligation of any
Person, to create, issue, incur (by merger, conversion, exchange or otherwise),
extend, assume, Guarantee or become liable in respect of such Debt or other
obligation or the recording, as required pursuant to GAAP or otherwise, of any
such Debt or obligation on the balance sheet of such Person (and "Incurrence"
and "Incurred" shall have meanings correlative to the foregoing); provided,
however, that a change in GAAP that results in an obligation of such Person that
exists at such time, and is not theretofore classified as Debt, becoming Debt
shall not be deemed an Incurrence of such Debt; provided further, however, that
any Debt or other obligations of a Person existing at the time such Person
becomes a Subsidiary (whether by merger, consolidation, acquisition or
otherwise) shall be deemed to be Incurred by such Subsidiary at the time it
becomes a Subsidiary; and provided further, however, that solely for purposes of
determining compliance with Section 4.03, neither accrual of interest on Debt
nor amortization of debt discount shall be deemed to be the Incurrence of Debt,
provided that in the case of Debt sold at a discount to the principal amount at
maturity thereof, the amount of such Debt Incurred shall at all times be the
accreted value of such Debt.
"Indenture" means this Indenture as amended or supplemented from time
to time.
"Independent Financial Advisor" means an investment banking firm of
national standing or any third party appraiser of national standing, provided
that such firm or appraiser is not an Affiliate of the Company.
"Interest Rate Agreement" means, for any Person, any interest rate swap
agreement, interest rate cap agreement, interest rate collar agreement or other
similar agreement designed to protect against fluctuations in interest rates.
"Investment" by any Person means any direct or indirect loan (other
than advances to customers in the ordinary course of business that are recorded
as accounts receivable on the balance sheet of such Person), advance or other
extension of credit or capital contribution (by means of transfers of cash or
other Property to others or payments for Property or services for the account or
use of others, or otherwise) to, or Incurrence of a Guarantee of any obligation
of, or purchase or acquisition of Capital Stock, bonds, notes, debentures or
other securities or evidence of Debt issued by, any other Person, except that
the acquisition of the Capital Stock of another Person in exchange for the
Capital Stock of the Company, other than Disqualified Stock, shall not be
considered an Investment by the Company. For purposes of Sections 4.04 and 4.11
and the definition of "Restricted Payment," "Investment" shall include the
portion (proportionate to the
13
Company's equity interest in such Subsidiary) of the Fair Market Value of the
net assets of any Subsidiary of the Company at the time that such Subsidiary is
designated an Unrestricted Subsidiary; provided, however, that upon a
redesignation of such Subsidiary as a Restricted Subsidiary, the Company shall
be deemed to continue to have a permanent "Investment" in an Unrestricted
Subsidiary of an amount (if positive) equal to:
(a) the Company's "Investment" in such Subsidiary at the time of such
redesignation, less
(b) the portion (proportionate to the Company's equity interest in such
Subsidiary) of the Fair Market Value of the net assets of such Subsidiary
at the time of such redesignation.
In determining the amount of any Investment made by transfer of any Property
other than cash, such Property shall be valued at its Fair Market Value at the
time of such Investment.
"Issue Date" means the date on which the Securities are initially
issued.
"Leverage Ratio" means the ratio of:
(a) the outstanding Debt of the Company and the Restricted Subsidiaries
on a consolidated basis, to
(b) the Annualized Pro Forma EBITDA.
The Leverage Ratio is calculated after giving pro forma effect to any Asset
Sale, Investment or acquisition of Property required to be given pro forma
effect pursuant to the definition of Pro Forma EBITDA.
"License Agreements" means, collectively, the (i) Sprint Trademark and
Service Xxxx License Agreement, dated as of December 23, 1999, by and between
Sprint Communications Company, L.P. and Alamosa PCS, LLC, (ii) Sprint Spectrum
Trademark and Service Xxxx License Agreement, dated as of December 23, 1999, by
and between Sprint Spectrum L.P. and Alamosa PCS, LLC, (iii) Sprint Trademark
and Service Xxxx License Agreement, dated as of December 6, 1999, by and between
Sprint Communications Company, L.P. and Alamosa Wisconsin Limited Partnership,
(iv) Sprint Spectrum Trademark and Service Xxxx License Agreement, dated as of
December 6, 1999, by and between Sprint Spectrum L.P. and Alamosa Wisconsin
Limited Partnership, (v) Sprint Trademark and Service Xxxx License Agreement,
dated as of June 8, 1998, by and between Sprint Communications Company, L.P. and
Xxxxxxx Wireless Communications, L.L.C., (vi) Sprint Spectrum Trademark and
Service Xxxx License Agreement, dated as of June 8, 1998, by and between Sprint
Spectrum L.P. and Xxxxxxx Wireless Communications, L.L.C., (vii) Sprint
Trademark and Service Xxxx License Agreement, dated as of July 10, 1998, by and
between Sprint Communications Company, L.P. and Southwest PCS, L.P., (viii)
Sprint Spectrum Trademark and Service Xxxx License Agreement, dated as of July
10, 1998, by and between Sprint Spectrum L.P. and Southwest PCS L.P., (ix)
Sprint Trademark and Service Xxxx License Agreement, dated as of January 25,
1999, by and between Sprint Communications Company, L.P. and
14
Washington Oregon Wireless, LLC, and (x) Sprint Spectrum Trademark and Service
Xxxx License Agreement, dated as of January 25, 1999, by and between Sprint
Spectrum L.P. and Washington Oregon Wireless, LLC, as such agreements referred
to in clauses (i) through (x) may be amended, supplemented or otherwise modified
from time to time.
"Lien" means, with respect to any Property of any Person, any mortgage
or deed of trust, pledge, hypothecation, assignment, deposit arrangement,
security interest, lien, charge, easement (other than any easement not
materially impairing usefulness or marketability), encumbrance, preference,
priority or other security agreement or preferential arrangement of any kind or
nature whatsoever on or with respect to such Property (including any Capital
Lease Obligation, conditional sale or other title retention agreement having
substantially the same economic effect as any of the foregoing or any Sale and
Leaseback Transaction).
"Management Agreements" means, collectively, the (i) Sprint PCS
Management Agreement, dated as of December 23, 1999, by and among Sprint
Spectrum L.P., WirelessCo, L.P., Xxx Communications PCS, L.P., Cox CPS License,
LLC, SprintCom, Inc. and Alamosa PCS, LLC, (ii) Sprint PCS Management Agreement,
dated as of December 6, 1999, by and among Sprint Spectrum L.P., WirelessCo,
L.P. and Alamosa Wisconsin Limited Partnership, (iii) Sprint PCS Management
Agreement, dated as of June 8, 1998, by and among Sprint Spectrum L.P.,
SprintCom, Inc. and Xxxxxxx Wireless Communications, L.L.C., (iv) Sprint PCS
Amended and Restated Management Agreement, dated as of March 30, 2001, by and
among Sprint Spectrum L.P., WirelessCo, L.P. and Southwest PCS, L.P., and (v)
Sprint PCS Management Agreement, dated as of January 25, 1999, by and among
WirelessCo, L.P., Sprint Spectrum L.P. and Washington Oregon Wireless, LLC, as
such agreements referred to in clauses (i) through (v) may be amended,
supplemented or otherwise modified from time to time.
"Moody's" means Xxxxx'x Investors Service, Inc. or any successor to the
rating agency business thereof.
"Net Available Cash" from any Asset Sale means cash payments received
therefrom (including any cash payments received by way of deferred payment of
principal pursuant to a note or installment receivable or otherwise, but only as
and when received, but excluding any other consideration received in the form of
assumption by the acquiring Person of Debt or other obligations relating to the
Property that is the subject of such Asset Sale or received in any other
non-cash form), in each case net of:
(a) all legal, title and recording tax expenses, commissions, brokerage
fees and other fees and expenses incurred, and all U.S. federal, state,
provincial, foreign and local taxes required to be accrued as a liability
under GAAP, as a consequence of such Asset Sale,
(b) all payments made on any Debt that is secured by any Property
subject to such Asset Sale, in accordance with the terms of any Lien upon
or other security agreement of any kind with respect to such Property, or
which must by its terms, or in order to obtain a necessary consent to such
Asset Sale, or by applicable law, be repaid out of the proceeds from such
Asset Sale,
15
(c) all distributions and other payments required to be made to
minority interest Holders in Subsidiaries or joint ventures as a result of
such Asset Sale, and
(d) the deduction of appropriate amounts provided by the seller as a
reserve, in accordance with GAAP, against any liabilities associated with
the Property disposed in such Asset Sale and retained by the Company or any
Restricted Subsidiary after such Asset Sale.
"Obligations" means the obligation of each Subsidiary Guarantor
pursuant to its Subsidiary Guaranty of:
(a) the full and punctual payment of principal and interest on the
Securities when due, whether at maturity, by acceleration, by redemption or
otherwise, and all other monetary obligations of the Company under the
Securities; and
(b) the full and punctual performance within applicable grace periods
of all other obligations of the Company under the Securities.
"Officer" means the Chief Executive Officer, the Chief Operating
Officer, the Chief Financial Officer or the Chief Technology Officer of the
Company.
"Officers' Certificate" means a certificate signed by two Officers of
the Company, at least one of whom shall be the principal executive officer or
principal financial officer of the Company, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion from legal counsel who is
acceptable to the Trustee. The counsel may be an employee of or counsel to the
Company or the Trustee.
"Permitted Holder" means (i) an issuer of Voting Stock issued to the
shareholders of Alamosa Holdings, Inc. (or any successor thereof) in a merger or
consolidation of the Company (or any direct or indirect parent company thereof)
that would not constitute a "Change of Control" pursuant to clause (5) of the
definition of "Change of Control," (ii) Alamosa Holdings, Inc. (or any successor
thereof), (iii) Alamosa PCS Holdings, Inc. (or any successor thereof), and (iv)
any wholly-owned subsidiary of any Person in (i), (ii) and (iii) above.
"Permitted Investment" means any Investment by the Company or a
Restricted Subsidiary in:
(a) the Company or any Restricted Subsidiary or any Person that will,
upon the making of such Investment, become a Restricted Subsidiary;
(b) any Person if substantially simultaneously with and/or as a result
of such Investment such Person is merged or consolidated with or into, or
transfers or conveys all or substantially all its Property to, or otherwise
becomes a Wholly Owned Restricted Subsidiary of, the Company or a
Restricted Subsidiary, provided that such Person's primary business is a
Telecommunications Business;
16
(c) Temporary Cash Investments;
(d) receivables owing to the Company or a Restricted Subsidiary, if
created or acquired in the ordinary course of business and payable or
dischargeable in accordance with customary trade terms; provided, however,
that such trade terms may include such concessionary trade terms as the
Company or such Restricted Subsidiary deems reasonable under the
circumstances;
(e) payroll, travel and similar advances to cover matters that are
expected at the time of such advances ultimately to be treated as expenses
for accounting purposes and that are made in the ordinary course of
business;
(f) loans and advances to employees made in the ordinary course of
business consistent with past practices of the Company or such Restricted
Subsidiary, as the case may be, provided that such loans and advances do
not exceed $3.0 million at any one time outstanding;
(g) stock, obligations or other securities received in settlement of
debts created in the ordinary course of business and owing to the Company
or a Restricted Subsidiary or in satisfaction of judgments; and
(h) Hedging Obligations Incurred in compliance with Section 4.03.
"Permitted Liens" means:
(a) Liens to secure Debt permitted to be Incurred under clause (b) of
the second paragraph of Section 4.03;
(b) Liens to secure Debt permitted to be Incurred under clause (c) of
the second paragraph of Section 4.03, provided that any such Lien may not
extend to any Property of the Company or any Restricted Subsidiary, other
than the Property acquired, constructed or leased with the proceeds of such
Debt and any improvements or accessions to such Property;
(c) Liens for taxes, assessments or governmental charges or levies on
the Property of the Company or any Restricted Subsidiary if the same shall
not at the time be delinquent or thereafter can be paid without penalty, or
are being contested in good faith and by appropriate proceedings promptly
instituted and diligently concluded, provided that any reserve or other
appropriate provision that shall be required in conformity with GAAP shall
have been made therefor;
(d) Liens imposed by law, such as carriers', warehousemen's and
mechanics' Liens and other similar Liens, on the Property of the Company or
any Restricted Subsidiary arising in the ordinary course of business and
securing payment of obligations that are not more than 60 days past due or
are being contested in good faith and by appropriate proceedings;
(e) Liens on the Property of the Company or any Restricted Subsidiary
Incurred in the ordinary course of business to secure performance of
obligations
17
with respect to statutory or regulatory requirements, performance or
return-of- money bonds, surety bonds or other obligations of a like nature
and Incurred in a manner consistent with industry practice, in each case
which are not Incurred in connection with the borrowing of money, the
obtaining of advances or credit or the payment of the deferred purchase
price of Property and which do not in the aggregate impair in any material
respect the use of Property in the operation of the business of the Company
and the Restricted Subsidiaries taken as a whole;
(f) Liens on Property at the time the Company or any Restricted
Subsidiary acquired such Property, including any acquisition by means of a
merger or consolidation with or into the Company or any Restricted
Subsidiary; provided, however, that any such Lien may not extend to any
other Property of the Company or any Restricted Subsidiary; provided
further, however, that such Liens shall not have been Incurred in
anticipation of or in connection with the transaction or series of
transactions pursuant to which such Property was acquired by the Company or
any Restricted Subsidiary;
(g) Liens on the Property of a Person at the time such Person becomes a
Restricted Subsidiary; provided, however, that any such Lien may not extend
to any other Property of the Company or any other Restricted Subsidiary
that is not a direct Subsidiary of such Person; provided further, however,
that any such Lien was not Incurred in anticipation of or in connection
with the transaction or series of transactions pursuant to which such
Person became a Restricted Subsidiary;
(h) pledges or deposits by the Company or any Restricted Subsidiary
under workmen's compensation laws, unemployment insurance laws or similar
legislation, or good faith deposits in connection with bids, tenders,
contracts (other than for the payment of Debt) or leases to which the
Company or any Restricted Subsidiary is party, or deposits to secure public
or statutory obligations of the Company or any Restricted Subsidiary, or
deposits for the payment of rent, in each case Incurred in the ordinary
course of business;
(i) utility easements, building restrictions and such other
encumbrances or charges against real Property as are of a nature generally
existing with respect to properties of a similar character;
(j) Liens existing on the Issue Date not otherwise described in clauses
(a) through (i) above;
(k) Liens on the Property of the Company or any Restricted Subsidiary
to secure any Refinancing, in whole or in part, of any Debt secured by
Liens referred to in clause (b), (f), (g) or (j) above; provided, however,
that any such Lien shall be limited to all or part of the same Property
that secured the original Lien (together with improvements and accessions
to such Property) and the aggregate principal amount of Debt that is
secured by such Lien shall not be increased to an amount greater than the
sum of:
(1) the outstanding principal amount, or, if greater, the
committed amount, of the Debt secured by Liens described under clause
(b), (f), (g) or
18
(j) above, as the case may be, at the time the original Lien became a
Permitted Lien hereunder, and
(2) an amount necessary to pay any fees and expenses, including
premiums and defeasance costs, incurred by the Company or such
Restricted Subsidiary in connection with such Refinancing;
(l) Liens on the Property of the Company or any Restricted Subsidiary
to secure Debt under any Interest Rate Agreement, provided, however, that
such Debt was Incurred pursuant to clause (e) of the second paragraph of
Section 4.03;
(m) any interest or title of a lessor in the Property subject to any
lease incurred in the ordinary course of business, other than a Capital
Lease; and
(n) judgment Liens securing judgment in an aggregate amount outstanding
at any one time of not more than $15.0 million.
"Permitted Refinancing Debt" means any Debt that Refinances any other
Debt, including any successive Refinancings, so long as:
(a) such Debt is in an aggregate principal amount (or if Incurred with
original issue discount, an aggregate issue price) not in excess of the sum
of:
(1) the aggregate principal amount (or if Incurred with original
issue discount, the aggregate accreted value) then outstanding of the
Debt being Refinanced, and
(2) an amount necessary to pay any fees and expenses, including
premiums and defeasance costs, related to such Refinancing,
(b) the Average Life of such Debt is equal to or greater than the
Average Life of the Debt being Refinanced,
(c) the Stated Maturity of such Debt is no earlier than the Stated
Maturity of the Debt being Refinanced, and
(d) the new Debt shall not be senior in right of payment to the Debt
that is being Refinanced;
provided, however, that Permitted Refinancing Debt shall not include:
(x) Debt of a Subsidiary Guarantor that Refinances Debt of the Company
(other than Debt of the Company consisting of guarantees of Credit
Facilities),
(y) Debt of a Subsidiary that is not a Subsidiary Guarantor that
Refinances Debt of the Company or a Subsidiary Guarantor (other than Debt
Incurred pursuant to Credit Facilities), or
19
(z) Debt of the Company or a Restricted Subsidiary that Refinances Debt
of an Unrestricted Subsidiary.
"Person" means any individual, corporation, company (including any
limited liability company), association, partnership, joint venture, trust,
unincorporated organization, government or any agency or political subdivision
thereof or any other entity.
"Preferred Stock" means any Capital Stock of a Person, however
designated, which entitles the holder thereof to a preference with respect to
the payment of dividends, or as to the distribution of assets upon any voluntary
or involuntary liquidation or dissolution of such Person, over shares of any
other class of Capital Stock issued by such Person.
"Preferred Stock Dividends" means all dividends with respect to
Preferred Stock of Restricted Subsidiaries held by Persons other than the
Company or a Wholly Owned Restricted Subsidiary. The amount of any such dividend
shall be equal to the quotient of such dividend divided by the difference
between one and the maximum statutory federal income rate (expressed as a
decimal number between 1 and 0) then applicable to the issuer of such Preferred
Stock.
"principal" of any Debt (including the Securities) means the principal
amount of such Debt plus the premium, if any, on such Debt.
"pro forma" means, with respect to any calculation made or required to
be made pursuant to the terms hereof, a calculation performed in accordance with
Article 11 of Regulation S-X promulgated under the Securities Act, as
interpreted in good faith by the Board of Directors after consultation with the
independent certified public accountants of the Company, or otherwise a
calculation made in good faith by the Board of Directors after consultation with
the independent certified public accountants of the Company, as the case may be.
"Pro Forma EBITDA" means, for any period, the EBITDA of the Company and
its consolidated Restricted Subsidiaries, after giving effect to the following:
if:
(a) since the beginning of such period, the Company or any Restricted
Subsidiary shall have made any Asset Sale or an Investment (by merger or
otherwise) in any Restricted Subsidiary (or any Person that becomes a
Restricted Subsidiary) or an acquisition of Property,
(b) the transaction giving rise to the need to calculate Pro Forma
EBITDA is such an Asset Sale, Investment or acquisition, or
(c) since the beginning of such period any Person (that subsequently
became a Restricted Subsidiary or was merged with or into the Company or
any
20
Restricted Subsidiary since the beginning of such period) shall have made
such an Asset Sale, Investment or acquisition,
EBITDA for such period shall be calculated after giving pro forma effect to such
Asset Sale, Investment or acquisition as if such Asset Sale, Investment or
acquisition occurred on the first day of such period.
"Property" means, with respect to any Person, any interest of such
Person in any kind of property or asset, whether real, personal or mixed, or
tangible or intangible, including Capital Stock in, and other securities of, any
other Person. For purposes of any calculation required pursuant to this
Indenture, the value of any Property shall be its Fair Market Value.
"Public Equity Offering" means an underwritten public offering of
common stock of the Company or any direct or indirect parent Person of the
Company pursuant to an effective registration statement under the Securities
Act. In the event that any direct or indirect parent Person of the Company
completes an underwritten public offering of such Person's common stock pursuant
to an effective registration statement under the Securities Act, any amount of
the proceeds of such offering which are contributed to the Company may be used
for an optional redemption of the Securities pursuant to Paragraph 5 of the
Securities.
"Purchase Money Debt" means Debt:
(a) consisting of the deferred purchase price of property, conditional
sale obligations, obligations under any title retention agreement, other
purchase money obligations and obligations in respect of industrial revenue
bonds, in each case where the maturity of such Debt does not exceed the
anticipated useful life of the Property being financed, and
(b) Incurred to finance the acquisition, construction or lease by the
Company or a Restricted Subsidiary of such Property, including additions
and improvements thereto;
provided, however, that such Debt is Incurred within 180 days after the
acquisition, construction or lease of such Property by the Company or such
Restricted Subsidiary.
"Receivables" means receivables, chattel paper, instruments, documents
or intangibles evidencing or relating to the right to payment of money and
proceeds and products thereof in each case generated in the ordinary course of
business.
"Refinance" means, in respect of any Debt, to refinance, amend, extend,
renew, refund, repay, prepay, repurchase, redeem, defease or retire, or to issue
other Debt in exchange or replacement for, such Debt. "Refinanced" and
"Refinancing" shall have correlative meanings.
"Repay" means, in respect of any Debt, to repay, prepay, repurchase,
redeem, legally defease or otherwise retire such Debt, including through open
market repurchases. "Repayment" and "Repaid" shall have correlative meanings.
For purposes of
21
Section 4.07, Debt shall be considered to have been Repaid only to the extent
the related loan commitment, if any, shall have been permanently reduced in
connection therewith.
"Restricted Payment" means:
(a) any dividend or distribution (whether made in cash, securities or
other Property) declared or paid on or with respect to any shares of
Capital Stock of the Company or any Restricted Subsidiary (including any
payment in connection with any merger or consolidation with or into the
Company or any Restricted Subsidiary), except for (i) any dividend or
distribution that is made solely to the Company or a Restricted Subsidiary
(and, if such Restricted Subsidiary is not a Wholly Owned Restricted
Subsidiary, to the other shareholders of such Restricted Subsidiary on a
pro rata basis or on a basis that results in the receipt by the Company or
a Restricted Subsidiary of dividends or distributions of greater value than
it would receive on a pro rata basis), or (ii) any dividend or distribution
payable solely in shares (or options, warrants or other rights to purchase
shares) of Capital Stock (other than Disqualified Stock) of the Company;
(b) the purchase, repurchase, redemption, acquisition or retirement for
value of any Capital Stock of the Company (other than from the Company or a
Restricted Subsidiary) or any securities exchangeable for or convertible
into any such Capital Stock, including the exercise of any option to
exchange any Capital Stock (other than for or into Capital Stock of the
Company that is not Disqualified Stock);
(c) the purchase, repurchase, redemption, acquisition or retirement for
value, prior to the date for any scheduled maturity, sinking fund or
amortization or other installment payment, of any Subordinated Obligation
(other than the purchase, repurchase or other acquisition of any
Subordinated Obligation purchased in anticipation of satisfying a scheduled
maturity, sinking fund or amortization or other installment obligation, in
each case due within one year of the date of acquisition); or
(d) any Investment (other than Permitted Investments) in any Person.
"Restricted Subsidiary" means any Subsidiary of the Company other than
an Unrestricted Subsidiary.
"S&P" means Standard & Poor's Ratings Service or any successor to the
rating agency business thereof.
"Sale and Leaseback Transaction" means any direct or indirect
arrangement relating to Property now owned or hereafter acquired whereby the
Company or a Restricted Subsidiary transfers such Property to another Person and
the Company or a Restricted Subsidiary leases it from such Person.
"Securities" means, collectively, the Company's 11% Senior Notes due
2010 issued under this Indenture (whether on the Issue Date or thereafter), as
amended or supplemented from time to time in accordance with the terms of this
Indenture.
22
"Securities Act" means the Securities Act of 1933.
"Senior Debt" of the Company means all Debt of the Company, except:
(a) Debt of the Company that is by its terms subordinate in right of
payment to the Securities;
(b) any Debt Incurred in violation of the provisions of this Indenture;
(c) accounts payable or any other obligations of the Company to trade
creditors created or assumed by the Company in the ordinary course of
business in connection with the obtaining of materials or services
(including Guarantees thereof or instruments evidencing such liabilities);
(d) any liability for U.S. federal, state, local or other taxes owed or
owing by the Company;
(e) any obligation of the Company to any Subsidiary; or
(f) any obligations with respect to any Capital Stock of the Company.
"Senior Debt" of any Subsidiary Guarantor has a correlative meaning to
Senior Debt of the Company.
"Senior Discount Notes" means the 12% Senior Discount Notes due 2009 of
the Company issued pursuant to the Indenture, dated as of [ ] [ ], 2003, between
the Company and Xxxxx Fargo Bank Minnesota, N.A., as trustee, as such Indenture
may be amended or supplemented from time to time.
"Senior Secured Credit Facility" means the credit facility issued
pursuant to the Amended and Restated Credit Agreement, dated as of March 30,
2001, by and among the Company, Alamosa Holdings, LLC, Alamosa Holdings, Inc.,
the lenders party thereto, Citicorp USA, Inc., as administrative and collateral
agent, Export Development Corporation, as co-documentation agent, First Union
National Bank, as documentation agent, Toronto Dominion (Texas), Inc., as
syndication agent, Export Development Corporation and First Union Securities,
Inc., as lead arrangers, and Xxxxxxx Xxxxx Barney Inc. and TD Securities (USA)
Inc., as joint lead arrangers and joint book managers, as amended or
supplemented from time to time.
"Significant Subsidiary" means any Subsidiary that would be a
"Significant Subsidiary" of the Company within the meaning of Rule 1-02 under
Regulation S-X promulgated by the Commission.
"Sprint PCS Affiliate" means any Person whose sole or predominant
business is operating (directly or through one or more subsidiaries) a personal
communications services business pursuant to arrangements with Sprint Spectrum
L.P. and/or its Affiliates, or their successors, similar to the Management
Agreements.
23
"Sprint PCS Affiliate Parent" means any Person that owns 75% or more of
the issued and outstanding common stock, calculated on a fully diluted basis, of
a Sprint PCS Affiliate and whose primary business is either being a Sprint PCS
Affiliate or holding the Capital Stock of one or more Sprint PCS Affiliates.
"Stated Maturity" means, with respect to any security, the date
specified in such security as the fixed date on which the payment of principal
of such security is finally due and payable, including pursuant to any mandatory
redemption provision (but excluding any provision providing for the repurchase
of such security at the option of the holder thereof upon the happening of a
Change of Control or any other contingency beyond the control of the issuer
unless such contingency has occurred).
"Subordinated Obligation" means any Debt of the Company or any
Subsidiary Guarantor (whether outstanding on the Issue Date or thereafter
Incurred) that is subordinate or junior in right of payment to the Securities or
the applicable Subsidiary Guaranty pursuant to a written agreement to that
effect.
"Subsidiary" means, in respect of any Person, any corporation, company
(including any limited liability company), association, partnership, joint
venture or other business entity of which a majority of the total voting power
of the Voting Stock is at the time owned or controlled, directly or indirectly,
by:
(a) such Person,
(b) such Person and one or more Subsidiaries of such Person, or
(c) one or more Subsidiaries of such Person.
"Subsidiary Guarantor" means each Domestic Restricted Subsidiary and
any other Person that becomes a Subsidiary Guarantor pursuant to Section 4.15.
"Subsidiary Guaranty" means a Guarantee on the terms set forth in this
Indenture by a Subsidiary Guarantor of the Company's obligations with respect to
the Securities.
"Telecommunications Assets" means all assets and rights, contractual or
otherwise, used or intended for use in connection with (i) transmitting, or
providing services relating to the transmission of, voice, video or data through
owned or leased transmission facilities, or (ii) the ownership, design,
construction, development, acquisition, installation or management of
communications systems, and the Capital Stock of any Person engaged entirely or
substantially entirely in the above listed activities.
"Telecommunications Business" means (a) the ownership, design,
construction, development, acquisition, installation or management of
communications systems, (b) the delivery or distribution of communications,
voice, data or video services or (c) any business or activity reasonably related
or ancillary to the activities described in clauses (a) or (b) of this
definition, including, without limitation, any business conducted by the Company
or any Restricted Subsidiary on the Issue Date and the acquisition,
24
holding or exploitation of any license relating to the activities described in
clauses (a) or (b) of this definition.
"Temporary Cash Investments" means any of the following:
(a) Investments in U.S. Government Obligations or securities guaranteed
by the full faith and credit of the United States of America, in each case
maturing within 365 days of the date of acquisition thereof;
(b) Investments in time deposit accounts, certificates of deposit and
money market deposits maturing within 90 days of the date of acquisition
thereof issued by a bank or trust company organized under the laws of the
United States of America or any State thereof having capital, surplus and
undivided profits aggregating in excess of $500.0 million and whose
long-term debt is rated "A-3" or "A-" or higher according to Xxxxx'x or S&P
(or such similar equivalent rating by at least one "nationally recognized
statistical rating organization" (as defined in Rule 436 under the
Securities Act));
(c) repurchase obligations with a term of not more than 30 days for
underlying securities of the types described in clause (a) entered into
with:
(1) a bank meeting the qualifications described in clause (b)
above,
or
(2) any primary government securities dealer reporting to the
Market Reports Division of the Federal Reserve Bank of New York;
(d) Investments in commercial paper, maturing not more than 90 days
after the date of acquisition, issued by a corporation (other than an
Affiliate of the Company) organized and in existence under the laws of the
United States of America with a rating at the time as of which any
Investment therein is made of "P-1" (or higher) according to Xxxxx'x or
"A-1" (or higher) according to S&P (or such similar equivalent rating by at
least one "nationally recognized statistical rating organization" (as
defined in Rule 436 under the Securities Act)); and
(e) direct obligations (or certificates representing an ownership
interest in such obligations) of any State of the United States of America
(including any agency or instrumentality thereof) for the payment of which
the full faith and credit of such State is pledged and which are not
callable or redeemable at the issuer's option, provided, however, that:
(1) the long-term debt of such State is rated "A-3" or "A-" or
higher according to Xxxxx'x or S&P (or such similar equivalent rating
by at least one "nationally recognized statistical rating organization"
(as defined in Rule 436 under the Securities Act)), and
(2) such obligations mature within 180 days of the date of
acquisition thereof.
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"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. (Sections)
77aaa-77bbbb) as in effect on the date of this Indenture; provided, however,
that, in the event the TIA is amended after such date, "TIA" means, to the
extent required by any such amendments, the Trust Indenture Act of 1939 as so
amended.
"Trustee" means the party named as such in this Indenture until a
successor replaces it and, thereafter, means the successor.
"Trust Officer" means any officer within the Corporate Trust
Administration department of the Trustee (or any successor group of the trustee)
with direct responsibility for the administration of this Indenture and also
means, with respect to a particular corporate trust matter, any other officer of
the Trustee to whom such matter is referred because of his knowledge of and
familiarity with the particular subject.
"Uniform Commercial Code" means the New York Uniform Commercial Code as
in effect from time to time.
"Unrestricted Subsidiary" means:
(a) any Subsidiary of the Company that is designated on or after the
Issue Date as an Unrestricted Subsidiary as permitted or required pursuant
to Section 4.11 and not thereafter redesignated as a Restricted Subsidiary
as permitted pursuant thereto; and
(b) any Subsidiary of an Unrestricted Subsidiary.
"U.S. Government Obligations" means direct obligations (or certificates
representing an ownership interest in such obligations) of the United States of
America (including any agency or instrumentality thereof) for the payment of
which the full faith and credit of the United States of America is pledged and
which are not callable or redeemable at the issuer's option.
"Voting Stock" of any Person means all classes of Capital Stock or
other interests (including partnership interests) of such Person then
outstanding and normally entitled (without regard to the occurrence of any
contingency) to vote in the election of directors, managers or trustees thereof.
"Wholly Owned Restricted Subsidiary" means, at any time, a Restricted
Subsidiary all the Voting Stock of which (except directors' qualifying shares)
is at such time owned, directly or indirectly, by the Company and its other
Wholly Owned Subsidiaries.
SECTION 1.02. Other Definitions.
Defined in
Term Section
---- -------
"Affiliate Transaction"............................................ 4.09
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Defined in
Term Section
---- -------
"Allocable Excess Proceeds"........................................ 4.07
"Bankruptcy Law"................................................... 6.01
"Change of Control Offer".......................................... 4.14
"Change of Control Payment Date"................................... 4.14
"Change of Control Purchase Price"................................. 4.14
"Claiming Guarantor"............................................... 10.02
"Contributing Party"............................................... 10.02
"covenant defeasance option"....................................... 8.01
"Custodian"........................................................ 6.01
"Event of Default"................................................. 6.01
"Excess Proceeds".................................................. 4.07
"Global Security".................................................. Appendix A
"legal defeasance option".......................................... 8.01
"Legal Holiday".................................................... 12.08
"Obligations"...................................................... 10.01
"Offer Amount"..................................................... 4.07
"Offer Period"..................................................... 4.07
"pay its Subsidiary Guaranty"...................................... 11.03
"Paying Agent"..................................................... 2.03
"Payment Blockage Notice".......................................... 11.03
"Payment Blockage Period".......................................... 11.03
"Prepayment Offer"................................................. 4.07
"Rating Organization".............................................. 1.01
"Registrar"........................................................ 2.03
"Surviving Person"................................................. 5.01
SECTION 1.03. Incorporation by Reference of Trust Indenture Act. This
Indenture is subject to the mandatory provisions of the TIA, which are
incorporated by reference in and made a part of this Indenture. The following
TIA terms have the following meanings:
"indenture securities" means the Securities and the Subsidiary
Guarantees.
"indenture security holder" means a Securityholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
27
"obligor" on the indenture securities means the Company, each
Subsidiary Guarantor and any other obligor on the indenture securities.
All other TIA terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by Commission rule have
the meanings assigned to them by such definitions.
SECTION 1.04. Rules of Construction. Unless the context otherwise
requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning assigned
to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) "including" means including without limitation;
(5) words in the singular include the plural and words in the plural
include the singular;
(6) unsecured Debt shall not be deemed to be subordinate or junior to
secured Debt merely by virtue of its unsecured nature;
(7) the accreted value of any noninterest bearing or other discount
security at any date shall be the accreted value thereof that would be
shown on a balance sheet of the issuer dated such date prepared in
accordance with GAAP; and
(8) the principal amount of any Preferred Stock shall be the greater of
(i) the maximum liquidation value of such Preferred Stock, or (ii) the
maximum mandatory redemption or mandatory repurchase price with respect to
such Preferred Stock.
ARTICLE II
The Securities
SECTION 2.01. Form and Dating. Provisions relating to the Securities
are set forth in Appendix A, which is hereby incorporated in and expressly made
part of this Indenture. The Securities and the Trustee's certificate of
authentication shall be substantially in the form of Exhibit 1 to Appendix A,
which is hereby incorporated in and expressly made a part of this Indenture. The
Securities may have notations, legends or endorsements required by law, stock
exchange rule, agreements to which the Company is subject, if any, or usage,
provided that any such notation, legend or endorsement is in a form reasonably
acceptable to the Company. Each Security shall be dated the date of its
28
authentication. The terms of the Securities set forth in Exhibit 1 to Appendix A
are part of the terms of this Indenture.
SECTION 2.02. Execution and Authentication. Two Officers shall sign the
Securities for the Company by manual or facsimile signature. The Company's seal
shall be impressed, affixed, imprinted or reproduced on the Securities and may
be in facsimile form.
If an Officer whose signature is on a Security no longer holds that
office at the time the Trustee authenticates the Security, the Security shall be
valid nevertheless.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities executed by the Company to
the Trustee for authentication, together with a written order of the Company in
the form of an Officers' Certificate for the authentication and delivery of such
Securities, and the Trustee in accordance with such written order of the Company
shall authenticate and deliver such Securities.
A Security shall not be valid until an authorized signatory of the
Trustee manually signs the certificate of authentication on the Security. The
signature shall be conclusive evidence that the Security has been authenticated
under this Indenture.
The Trustee may appoint an authenticating agent reasonably acceptable
to the Company to authenticate the Securities. Unless limited by the terms of
such appointment, an authenticating agent may authenticate Securities whenever
the Trustee may do so. Each reference in this Indenture to authentication by the
Trustee includes authentication by such agent. An authenticating agent has the
same rights as any Registrar, Paying Agent or agent for service of notices and
demands.
SECTION 2.03. Registrar and Paying Agent. The Company shall maintain an
office or agency where Securities may be presented for registration of transfer
or for exchange (the "Registrar") and an office or agency where Securities may
be presented for payment (the "Paying Agent"). The Registrar shall keep a
register of the Securities and of their transfer and exchange. The Company may
have one or more co-registrars and one or more additional paying agents. The
term "Paying Agent" includes any additional paying agent.
The Company shall enter into an appropriate agency agreement with any
Registrar, Paying Agent or co-registrar not a party to this Indenture, which
shall incorporate the terms of the TIA. The 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 any such agent. If the Company fails to
maintain a Registrar or Paying Agent, the Trustee shall act as such and shall be
entitled to appropriate compensation therefor pursuant to Section 7.07. The
Company or any of its domestically incorporated Wholly Owned Subsidiaries may
act as Paying Agent, Registrar, co-registrar or transfer agent.
The Company initially appoints the Trustee as Registrar and Paying
Agent in connection with the Securities.
29
SECTION 2.04. Paying Agent To Hold Money in Trust. Prior to each due
date of the principal, premium, if any, and interest on any Security, the
Company shall deposit with the Paying Agent a sum sufficient to pay such
principal, premium, if any, and interest when so becoming due. 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 Securityholders or the
Trustee all money held by the Paying Agent for the payment of principal,
premium, if any, and interest on the Securities and shall notify the Trustee of
any default by the Company in making any such payment. If the Company or a
Wholly Owned Subsidiary acts as Paying Agent, it shall segregate the money held
by it as Paying Agent and hold it as a separate trust fund. The Company at any
time may require a Paying Agent to pay all money held by it to the Trustee and
to account for any funds disbursed by the Paying Agent. Upon complying with this
Section 2.04, the Paying Agent shall have no further liability for the money
delivered to the Trustee.
SECTION 2.05. Securityholder Lists. The Trustee shall preserve in as
current a form as is reasonably practicable the most recent list available to it
of the names and addresses of Securityholders. If the Trustee is not the
Registrar, the Company shall furnish to the Trustee, in writing at least five
Business Days before each interest payment date and at such other times as the
Trustee may request in writing, a list in such form and as of such date as the
Trustee may reasonably require of the names and addresses of Securityholders.
SECTION 2.06. Replacement Securities. If a mutilated Security is
surrendered to the Registrar or if the Holder of a Security claims that such
Security has been lost, destroyed or wrongfully taken, the Company shall issue
and the Trustee shall authenticate a replacement Security if the requirements of
Section 8-405 of the Uniform Commercial Code are met and the Holder satisfies
any other reasonable requirements of the Trustee. If required by the Trustee or
the Company, such Holder shall furnish an indemnity bond sufficient in the
judgment of the Company and the Trustee to protect the Company, the Trustee, the
Paying Agent, the Registrar and any co-registrar from any loss that any of them
may suffer if a Security is replaced. The Company and the Trustee may charge the
Holder for their expenses in replacing a Security.
Every replacement Security is an additional obligation of the Company.
SECTION 2.07. Outstanding Securities. Securities outstanding at any
time are all Securities authenticated by the Trustee except for those canceled
by it, those delivered to it for cancellation and those described in this
Section as not outstanding. A Security does not cease to be outstanding because
the Company or an Affiliate of the Company holds the Security.
If a Security is replaced pursuant to Section 2.06, it ceases to be
outstanding unless the Trustee and the Company receive proof satisfactory to
them that the replaced Security is held by a bona fide purchaser.
If the Paying Agent segregates and holds in trust, in accordance with
this Indenture, on a redemption date or maturity date money sufficient to pay
all principal, premium, if any, and interest payable on that date with respect
to the Securities (or portions thereof) to be redeemed or maturing, as the case
may be, then on and after that
30
date such Securities (or portions thereof) cease to be outstanding and interest
on them ceases to accrete.
SECTION 2.08. Temporary Securities. Until definitive Securities are
ready for delivery, the Company may prepare and the Trustee shall authenticate
temporary Securities. Temporary Securities shall be substantially in the form of
definitive Securities but may have variations that the Company considers
appropriate for temporary Securities. Without unreasonable delay, the Company
shall prepare and the Trustee shall authenticate definitive Securities and
deliver them in exchange for temporary Securities.
SECTION 2.09. Cancellation. The Company at any time may deliver
Securities to the Trustee for cancellation. The Registrar and the Paying Agent
shall forward to the Trustee any Securities surrendered to them for registration
of transfer, exchange or payment. The Trustee and no one else shall cancel and
destroy (subject to the record retention requirements of the Exchange Act) all
Securities surrendered for registration of transfer, exchange, payment or
cancellation and deliver a certificate of such destruction to the Company. The
Company may not issue new Securities to replace Securities it has redeemed, paid
or delivered to the Trustee for cancellation.
SECTION 2.10. Defaulted Interest. If the Company defaults in a payment
of interest on the Securities, the Company shall pay the defaulted interest
(plus interest on such defaulted interest to the extent lawful) in any lawful
manner. The Company may pay the defaulted interest to the persons who are
Securityholders on a subsequent special record date. The Company shall fix or
cause to be fixed any such special record date and payment date to the
reasonable satisfaction of the Trustee and shall promptly mail to each
Securityholder a notice that states the special record date, the payment date
and the amount of defaulted interest to be paid.
SECTION 2.11. CUSIP Numbers. The Company in issuing the Securities may
use "CUSIP" numbers (if then generally in use) and, if so, the Trustee shall use
"CUSIP" numbers in notices of redemption as a convenience to Holders; provided,
however, that neither the Company nor the Trustee shall have any responsibility
for any defect in the "CUSIP" number that appears on any Security, check, advice
of payment or redemption notice, and any such notice may state that no
representation is made as to the correctness of such numbers either as printed
on the Securities or as contained in any notice of a redemption and that
reliance may be placed only on the other identification numbers printed on the
Securities, and any such redemption shall not be affected by any defect in or
omission of such numbers.
ARTICLE III
Redemption
SECTION 3.01. Notices to Trustee. If the Company elects to redeem
Securities pursuant to paragraph 5 of the Securities, it shall notify the
Trustee in writing of the redemption date, the principal amount of Securities to
be redeemed and that such redemption is being made pursuant to paragraph 5 of
the Securities.
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The Company shall give each notice to the Trustee provided for in this
Section 3.01 at least 45 days before the redemption date unless the Trustee
consents to a shorter period. Such notice shall be accompanied by an Officers'
Certificate and an Opinion of Counsel from the Company to the effect that such
redemption will comply with the conditions herein.
SECTION 3.02. Selection of Securities To Be Redeemed. If fewer than all
the Securities are to be redeemed, the Trustee shall select the Securities to be
redeemed pro rata or by lot or a method that complies with applicable legal and
securities exchange requirements, if any, and that the Trustee considers fair
and appropriate and in accordance with methods generally used at the time of
selection by fiduciaries in similar circumstances. The Trustee shall make the
selection from outstanding Securities not previously called for redemption.
Securities the Trustee selects shall be in amounts of $1,000 or a whole multiple
of $1,000. The Trustee shall notify the Company promptly of the Securities to be
redeemed.
SECTION 3.03. Notice of Redemption. At least 30 days but not more than
60 days before a redemption date of Securities, the Company shall mail a notice
of redemption by first-class mail to each Holder of Securities to be redeemed.
The notice shall identify the Securities to be redeemed and shall
state:
(1) the redemption date;
(2) the redemption price;
(3) the name and address of the Paying Agent;
(4) that Securities called for redemption must be surrendered to the
Paying Agent to collect the redemption price;
(5) if fewer than all the outstanding Securities are to be redeemed,
the identification of the particular Securities to be redeemed;
(6) that, unless the Company defaults in making such redemption
payment, interest on Securities (or portion thereof) called for redemption
ceases to accrete on and after the redemption date; and
(7) that no representation is made as to the correctness or accuracy of
the CUSIP number, if any, listed in such notice or printed on the
Securities.
At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at the Company's expense. In such event,
the Company shall provide the Trustee with the information required by this
Section at least 45 days before the redemption date.
SECTION 3.04. Effect of Notice of Redemption. Once notice of redemption
is mailed, Securities called for redemption become due and payable on the
redemption date and at the redemption price stated in the notice. Upon surrender
to the
32
Paying Agent, such Securities shall be paid at the redemption price stated in
the notice, plus accrued interest to the redemption date (subject to the right
of Holders of record on the relevant record date to receive interest due on the
related interest payment date that is on or prior to such redemption date).
Failure to give notice or any defect in the notice to any Holder shall not
affect the validity of the notice to any other Holder.
SECTION 3.05. Deposit of Redemption Price. Prior to the redemption
date, the Company shall deposit with the Paying Agent (or, if the Company or a
Wholly Owned Subsidiary is the Paying Agent, shall segregate and hold in trust)
money sufficient to pay the redemption price of and accrued interest (subject to
the right of Holders of record on the relevant record date to receive interest
due on the related interest payment date that is on or prior to the date of
redemption) on all Securities to be redeemed on that date other than Securities
or portions of Securities called for redemption that have been delivered by the
Company to the Trustee for cancellation.
SECTION 3.06. Securities Redeemed in Part. Upon surrender of a Security
that is redeemed in part, the Company shall execute and the Trustee shall
authenticate for the Holder (at the Company's expense) a new Security equal in
principal amount to the unredeemed portion of the Security surrendered.
ARTICLE IV
Covenants
SECTION 4.01. Payment of Securities. The Company shall promptly pay
principal, premium, if any, and interest on the Securities on the dates and in
the manner provided in the Securities and in this Indenture. Principal, premium,
if any, and interest shall be considered paid on the date due if on such date
the Trustee or the Paying Agent holds in accordance with this Indenture money
sufficient to pay all principal, premium, if any, and interest then due.
The Company shall pay interest on overdue principal at the rate
specified therefor in the Securities, and it shall pay interest on overdue
installments of interest at the rate borne by the Securities to the extent
lawful.
SECTION 4.02. Commission Reports. Notwithstanding that the Company may
not be subject to the reporting requirements of Section 13 or 15(d) of the
Exchange Act, the Company shall file with the Commission and provide the Trustee
and holders of Securities with such annual reports and such information,
documents and other reports as are specified in Sections 13 and 15(d) of the
Exchange Act and applicable to a U.S. corporation subject to such Sections of
the Exchange Act, such information, documents and reports to be so filed and
provided at the times specified for the filing of such information, documents
and reports under such Sections; provided, however, that the Company shall not
be so obligated to file such information, documents and reports with the
Commission if the Commission does not permit such filings. The Company shall
also comply with the other provisions of TIA (Section) 314(a).
33
SECTION 4.03. Limitation on Debt. The Company shall not, and shall not
permit any Restricted Subsidiary to, Incur, directly or indirectly, any Debt
unless, after giving effect to the application of the proceeds thereof, no
Default or Event of Default would occur as a consequence of such Incurrence or
be continuing following such Incurrence and:
(1) such Debt is Debt of the Company or a Subsidiary Guarantor and
after giving effect to the Incurrence of such Debt and the application of
the proceeds thereof, the Leverage Ratio of the Company and the Restricted
Subsidiaries (calculated on a consolidated basis using Annualized Pro Forma
EBITDA which gives pro forma effect to those Asset Sales, Investments or
acquisitions of Property described in the definition of Pro Forma EBITDA)
would not exceed 6.5 to 1.0; or
(2) such Debt is Permitted Debt.
The term "Permitted Debt" is defined to include obligations which meet
the requirements of any of the following clauses (a) through (j):
(a) Debt of the Company evidenced by the Securities and the Senior
Discount Notes (including any Securities or Senior Discount Notes issued in
satisfaction of the obligations under the CVRs), the Existing Notes and the
CVRs, and of Subsidiary Guarantors evidenced by Subsidiary Guarantees
relating to the Securities, the Senior Discount Notes and the Existing
Notes;
(b) Debt of the Company or a Subsidiary Guarantor under any Credit
Facilities, provided, however, that the aggregate principal amount of all
such Debt under Credit Facilities at any one time outstanding shall not
exceed an amount equal to $330 million, which amount shall be permanently
reduced by the amount of Net Available Cash used to Repay Debt under the
Credit Facilities and not subsequently reinvested in Additional Assets or
used to purchase Securities or Repay other Debt, pursuant to Section 4.07;
(c) Debt in respect of Capital Lease Obligations and Purchase Money
Debt, provided, however, that:
(1) the aggregate principal amount of such Debt does not exceed
the Fair Market Value (on the date of the Incurrence thereof) of the
Property acquired, constructed or leased, and
(2) the aggregate principal amount of all Debt Incurred and then
outstanding pursuant to this clause (c) (together with all Permitted
Refinancing Debt Incurred and then outstanding in respect of Debt
previously Incurred pursuant to this clause (c)) does not exceed $50.0
million;
(d) Debt of the Company owing to and held by any Restricted Subsidiary
and Debt of a Restricted Subsidiary owing to and held by the Company or any
Restricted Subsidiary; provided, however, that (i) if the Company or any
34
Subsidiary Guarantor is the obligor on such Debt and the payee is not the
Company or a Subsidiary Guarantor, such Debt must be expressly subordinated
to the prior payment in full in cash of all obligations then due with
respect to the Securities, in the case of the Company, or Subsidiary
Guarantee, in the case of a Subsidiary Guarantor, and (ii) any subsequent
issue or transfer of Capital Stock or other event that results in any such
Restricted Subsidiary ceasing to be a Restricted Subsidiary or any
subsequent transfer of any such Debt (except to the Company or another
Restricted Subsidiary) shall be deemed, in each case, to constitute the
Incurrence of such Debt by the issuer thereof;
(e) Debt under Interest Rate Agreements entered into by the Company or
a Restricted Subsidiary for the purpose of limiting interest rate risk in
the ordinary course of the financial management of the Company or such
Restricted Subsidiary and not for speculative purposes, provided, however,
that the obligations under such agreements are related to payment
obligations on Debt otherwise permitted by the terms of this Section 4.03;
(f) Debt in connection with one or more standby letters of credit or
performance bonds issued by the Company or a Restricted Subsidiary in the
ordinary course of business or pursuant to self-insurance obligations and
not in connection with the borrowing of money or the obtaining of advances
or credit;
(g) Debt outstanding on the Issue Date not otherwise described in
clauses (a) through (f) above;
(h) Permitted Refinancing Debt Incurred in respect of Debt Incurred
pursuant to clause (1) of the first paragraph of this Section 4.03 or
clause (a), (c) or (g) above or clause (j) below;
(i) additional Debt of the Company in an aggregate principal amount
outstanding at any one time not to exceed $75.0 million; and
(j) Acquired Debt Incurred by a Subsidiary Guarantor at the time a
Sprint PCS Affiliate is merged with or into or becomes a Subsidiary of or
transfers all or substantially all of its assets to such Subsidiary
Guarantor on or prior to January 1, 2005, but only to the extent that
immediately after giving effect to the Incurrence of such Debt (i) the
Leverage Ratio would not exceed 7.75 to 1.0; and (ii) the Leverage Ratio
immediately following such Incurrence would decrease as compared to the
Leverage Ratio immediately prior to such Incurrence.
For purposes of determining compliance with this Section 4.03,
(a) in the event that any Debt is allowed to be Incurred pursuant to
more than one of the categories of Debt described above, including clause
(1) of the first paragraph of this Section 4.03 or as Permitted Debt, the
Company, in its sole discretion, will classify such Debt, as of the time of
Incurrence thereof, as Debt incurred pursuant to a particular clause under
the first paragraph of this Section 4.03, and if Incurred as Permitted Debt
will specify under which clause of Permitted Debt the Debt is Incurred; and
35
(b) Debt may be divided and classified in more than one of the
categories of Debt described above.
Notwithstanding anything to the contrary contained in this Section
4.03,
(a) the Company shall not, and shall not permit any Subsidiary
Guarantor to, Incur any Debt pursuant to this Section 4.03 if the proceeds
thereof are used, directly or indirectly, to Refinance any Subordinated
Obligations unless such Debt shall be subordinated to the Securities or the
applicable Subsidiary Guaranty, as the case may be, to at least the same
extent as such Subordinated Obligations, and
(b) the Company shall not permit any Restricted Subsidiary that is not
a Subsidiary Guarantor to Incur any Debt pursuant to this Section 4.03 if
the proceeds thereof are used, directly or indirectly, to Refinance any
Debt of the Company or any Subsidiary Guarantor.
SECTION 4.04. Limitation on Restricted Payments. The Company shall not
make, and shall not permit any Restricted Subsidiary to make, directly or
indirectly, any Restricted Payment if at the time of, and after giving effect
to, such proposed Restricted Payment,
(a) a Default or Event of Default shall have occurred and be
continuing,
(b) the Company could not Incur at least $1.00 of additional Debt
pursuant to clause (1) of the first paragraph of Section 4.03, or
(c) the aggregate amount of such Restricted Payment and all other
Restricted Payments declared or made since the Issue Date (the amount of
any Restricted Payment, if made other than in cash, to be based upon Fair
Market Value) would exceed an amount equal to the sum of:
(1) the result of:
(A) Cumulative EBITDA, minus
(B) the product of 1.5 and Cumulative Interest Expense, plus
(2) Capital Stock Sale Proceeds, plus
36
(3) the aggregate net cash proceeds received by the Company or
any Restricted Subsidiary from the issuance or sale after the Issue
Date of convertible or exchangeable Debt that has been converted into
or exchanged for Capital Stock (other than Disqualified Stock) of the
Company or any direct or indirect parent holding company of the
Company, excluding (x) any such Debt issued or sold to the Company or a
Subsidiary of the Company or an employee stock ownership plan or trust
established by the Company or any such Subsidiary for the benefit of
their employees, and (y) the aggregate amount of any cash or other
Property distributed by the Company or any Restricted Subsidiary upon
any such conversion or exchange,
plus
(4) an amount equal to the sum of:
(A) the net reduction in Investments in any Person other
than the Company or a Restricted Subsidiary resulting from
dividends, repayments of loans or advances or other transfers of
Property, in each case to the Company or any Restricted
Subsidiary from such Person, less the cost of the disposition of
such Investment, plus
(B) the portion (proportionate to the Company's equity
interest in such Unrestricted Subsidiary) of the Fair Market
Value of the net assets of an Unrestricted Subsidiary at the time
such Unrestricted Subsidiary is designated a Restricted
Subsidiary;
provided, however, that the sum in this clause (4) shall not exceed, in the case
of any Person, the amount of Investments previously made (and treated as a
Restricted Payment) by the Company or any Restricted Subsidiary in such Person.
Notwithstanding the foregoing limitation, the Company may take any
action if it is in compliance with any of the following clauses (a) through (h):
(a) pay dividends on its Capital Stock within 60 days of the
declaration thereof if, on such declaration date, such dividends could have
been paid in compliance with this Indenture; provided, however, that at the
time of such payment of such dividend, no other Default or Event of Default
shall have occurred and be continuing (or result therefrom); provided
further, however, that such dividend shall be included in the calculation
of the amount of Restricted Payments;
(b) purchase, repurchase, redeem, legally defease, acquire or retire
for value Capital Stock of the Company or Subordinated Obligations in
exchange for, or out of the proceeds of the substantially concurrent sale
of, Capital Stock of the Company (other than Disqualified Stock and other
than Capital Stock issued or sold to a Subsidiary of the Company or an
employee stock ownership plan or trust
37
established by the Company or any such Subsidiary for the benefit of their
employees); provided, however, that:
(1) such purchase, repurchase, redemption, legal defeasance,
acquisition or retirement shall be excluded in the calculation of the
amount of Restricted Payments, and
(2) the Capital Stock Sale Proceeds from such exchange or sale
shall be excluded from the calculation pursuant to clause (c)(2) above;
(c) purchase, repurchase, redeem, legally defease, acquire or retire
for value any Subordinated Obligations in exchange for, or out of the
proceeds of the substantially concurrent sale of, Permitted Refinancing
Debt; provided, however, that such purchase, repurchase, redemption, legal
defeasance, acquisition or retirement shall be excluded in the calculation
of the amount of Restricted Payments;
(d) make a Restricted Payment, if at the time the Company or any
Restricted Subsidiary first Incurred a commitment for such Restricted
Payment, such Restricted Payment could have been made; provided, however,
that all commitments Incurred and outstanding shall be treated as if such
commitments were Restricted Payments expended by the Company or a
Restricted Subsidiary at the time the commitments were Incurred, except
that commitments Incurred and outstanding that are treated as a Restricted
Payment expended by the Company or a Restricted Subsidiary and that are
terminated shall no longer be treated as a Restricted Payment expended by
the Company or a Restricted Subsidiary upon the termination of such
commitment;
(e) repurchase shares of, or options to purchase shares of, common
stock of the Company or any of its Subsidiaries (or pay dividends on its
Capital Stock for the purpose of enabling any direct or indirect parent
company of the Company to repurchase shares of, or options to purchase
shares of, its common stock) from current or former officers, directors or
employees of the Company or any of its Subsidiaries or any direct or
indirect parent holding company of the Company (or permitted transferees of
such current or former officers, directors or employees), pursuant to the
terms of agreements (including employment agreements) or plans (or
amendments thereto) approved by the Board of Directors of the Company or
such parent holding company under which such individuals purchase or sell,
or are granted the option to purchase or sell, shares of such common stock;
provided, however, that:
(1) the aggregate amount of such repurchases (or such dividends
made to facilitate such repurchases) shall not exceed $3.0 million in
any calendar year, although any unused amount in any calendar year may
be carried forward to one or more future calendar years, and
(2) at the time of such repurchase (or such dividends made to
facilitate such repurchases), no other Default or Event of Default
shall have occurred and be continuing (or result therefrom);
38
provided further, however, that such repurchases (or such dividends made to
facilitate such repurchases) shall be included in the calculation of the
amount of Restricted Payments;
(f) make Investments in any Person, provided that the Fair Market Value
thereof, measured on the date each such Investment was made or returned, as
applicable, when taken together with all other Investments made pursuant to
this clause (f), does not exceed the sum of $50.0 million, plus the
aggregate amount of the net reduction in Investments in any Person made
pursuant to this clause (f) on and after the Issue Date resulting from
dividends, repayments of loans or other transfers of Property, in each case
to the Company or any Restricted Subsidiary from such Person, except to the
extent that any such net reduction amount is included in the amount
calculated pursuant to clause (c) of the preceding paragraph or any other
clause of this paragraph; provided, however, that at the time of such
Investment, no other Default or Event of Default shall have occurred and be
continuing (or result therefrom); provided further, however, that such
Investment shall be included in the calculation of the amount of Restricted
Payments;
(g) make payments to any direct or indirect parent holding company of
the Company for legal, audit and other expenses directly relating to the
administration of such parent holding company, which payments do not exceed
$2.0 million in any fiscal year; and
(h) make direct or indirect payments to Alamosa Holdings, Inc. (or any
successor thereof) in amounts necessary to enable Alamosa Holdings, Inc.
(or any such successor) to make cash dividend payments with respect to the
shares of Series B Convertible Preferred Stock issued pursuant to the
Exchange Offers (or any securities issued in exchange therefor) and cash
payments with respect to the CVRs.
SECTION 4.05. Limitation on Liens. The Company shall not, and shall not
permit any Restricted Subsidiary to, directly or indirectly, Incur or suffer to
exist, any Lien, other than Permitted Liens, upon any of its Property (including
Capital Stock of a Restricted Subsidiary), whether owned at the Issue Date or
thereafter acquired, or any interest therein or any income or profits therefrom,
unless it has made or will make effective provision whereby the Securities or
the applicable Subsidiary Guaranty will be secured by such Lien equally and
ratably with (or prior to) all other Debt of the Company or any Restricted
Subsidiary secured by such Lien.
SECTION 4.06. Limitation on Issuance or Sale of Capital Stock of
Restricted Subsidiaries. The Company shall not:
(a) sell, pledge, hypothecate or otherwise dispose of any shares of
Capital Stock of a Restricted Subsidiary, except pledges of Capital Stock
which constitute Permitted Liens, or
(b) permit any Restricted Subsidiary to, directly or indirectly, issue
or sell or otherwise dispose of any shares of its Capital Stock,
39
other than, in the case of either (a) or (b):
(1) directors' qualifying shares,
(2) to the Company or a Restricted Subsidiary,
(3) a disposition of Capital Stock of such Restricted Subsidiary where
immediately after giving effect thereto, either such Restricted Subsidiary
remains a Restricted Subsidiary or the Company and the Restricted
Subsidiaries no longer own any Capital Stock of such entity, provided,
however, that, in the case of this clause (3),
(A) such issuance, sale or disposition is effected in compliance
with Section 4.07, and
(B) upon consummation of any such disposition which results in
the Company and the Restricted Subsidiaries no longer owning any
Capital Stock of an entity and execution and delivery of a supplemental
indenture in form satisfactory to the Trustee, such entity shall be
released from any Subsidiary Guaranty previously made by such entity,
(4) the transfer, conveyance, sale or other disposition of shares
required by applicable law or regulation,
(5) Capital Stock issued and outstanding on the Issue Date,
(6) Capital Stock of a Restricted Subsidiary issued and outstanding
prior to the time that such Person becomes a Restricted Subsidiary so long
as such Capital Stock was not issued in contemplation of such Person's
becoming a Restricted Subsidiary or otherwise being acquired by the
Company, or
(7) an issuance of Preferred Stock of a Restricted Subsidiary (other
than Preferred Stock convertible or exchangeable into common stock of any
Restricted Subsidiary) otherwise permitted by this Indenture.
SECTION 4.07. Limitation on Asset Sales. The Company shall not, and
shall not permit any Restricted Subsidiary to, directly or indirectly,
consummate any Asset Sale unless:
(a) the Company or such Restricted Subsidiary receives consideration at
the time of such Asset Sale at least equal to the Fair Market Value of the
Property subject to such Asset Sale;
(b) at least 75% of the consideration paid to the Company or such
Restricted Subsidiary in connection with such Asset Sale is in the form of
cash or cash equivalents or Telecommunications Assets or the assumption by
the purchaser of liabilities of the Company or any Restricted Subsidiary
(other than liabilities that are by their terms subordinated to the
Securities or the applicable
40
Subsidiary Guaranty) as a result of which the Company and the Restricted
Subsidiaries are no longer obligated with respect to such liabilities; and
(c) the Company delivers an Officers' Certificate to the Trustee
certifying that such Asset Sale complies with the foregoing clauses (a) and
(b).
The Net Available Cash (or any portion thereof) from Asset Sales may be
applied by the Company or a Restricted Subsidiary, to the extent the Company or
such Restricted Subsidiary elects (or is required by the terms of any Debt):
(a) to Repay Senior Debt of the Company or any Subsidiary Guarantor
(including the Senior Discount Notes, the Existing Notes and the
Securities), or Debt of any Restricted Subsidiary that is not a Subsidiary
Guarantor (excluding, in any such case, any Debt owed to the Company or an
Affiliate of the Company); or
(b) to reinvest in Additional Assets (including by means of an
Investment in Additional Assets by a Restricted Subsidiary with Net
Available Cash received by the Company or another Restricted Subsidiary).
Any Net Available Cash from an Asset Sale not applied in accordance
with the preceding paragraph within 360 days from the date of the receipt of
such Net Available Cash shall constitute "Excess Proceeds." When the aggregate
amount of Excess Proceeds exceeds $10.0 million (taking into account income
earned on such Excess Proceeds, if any), the Company will be required to make an
offer to purchase (the "Prepayment Offer") the Securities, which offer shall be
in the amount of the Allocable Excess Proceeds, on a pro rata basis according to
principal amount 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 of record on the relevant record date to receive
interest due on the relevant interest payment date), in accordance with the
procedures (including prorating in the event of oversubscription) set forth
below. To the extent that any portion of the amount of Net Available Cash
remains after compliance with the preceding sentence and provided that all
Holders have been given the opportunity to tender their Securities for purchase
in accordance with this Section 4.07, the Company or such Restricted Subsidiary
may use such remaining amount for any purpose permitted by this Indenture and
the amount of Excess Proceeds will be reset to zero.
The term "Allocable Excess Proceeds" will mean the product of:
(a) the Excess Proceeds and
(b) a fraction,
(1) the numerator of which is the aggregate principal amount of
the Securities outstanding on the date of the Prepayment Offer, and
(2) the denominator of which is the sum of the aggregate
principal amount of the Securities outstanding on the date of the
Prepayment Offer and the aggregate principal amount (or if Incurred
with original issue
41
discount, the aggregate accreted value) of other Debt of the Company
(including the Existing Notes and the Senior Discount Notes)
outstanding on the date of the Prepayment Offer that is pari passu in
right of payment with the Securities and subject to terms and
conditions in respect of Asset Sales similar in all material respects
to this Section 4.07 and requiring the Company to make an offer to
purchase such Debt at substantially the same time as the Prepayment
Offer.
(d)(1) Within five Business Days after the Company is obligated to make
a Prepayment Offer as described in the preceding paragraph, the Company shall
send a written notice, by first-class mail, to the Holders (with a copy to the
Trustee), accompanied by such information regarding the Company and its
Subsidiaries as the Company in good faith believes will enable such Holders to
make an informed decision with respect to such Prepayment Offer. Such notice
shall state, among other things, the purchase price and the purchase date (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.
(2) Not later than the date upon which written notice of a Prepayment
Offer is delivered to the Trustee as provided above, the Company shall deliver
to the Trustee an Officers' Certificate as to (i) the amount of the Prepayment
Offer (the "Offer Amount"), (ii) the allocation of the Net Available Cash from
the Asset Sales pursuant to which such Prepayment Offer is being made and (iii)
the compliance of such allocation with the provisions of the second paragraph of
this Section 4.07. On or before the Purchase Date, the Company shall also
irrevocably deposit with the Trustee or with the Paying Agent (or, if the
Company or a Wholly Owned Subsidiary is the Paying Agent, shall segregate and
hold in trust) in Temporary Cash Investments (other than in those enumerated in
clause (b) of the definition of Temporary Cash Investments), maturing on the
last day prior to the Purchase Date or on the Purchase Date if funds are
immediately available by open of business, an amount equal to the Offer Amount
to be held for payment in accordance with the provisions of this Section 4.07.
Upon the expiration of the period for which the Prepayment Offer remains open
(the "Offer Period"), the Company shall deliver to the Trustee for cancellation
the Securities or portions thereof that have been properly tendered to and are
to be accepted by the Company. The Trustee or the Paying Agent shall, on the
Purchase Date, mail or deliver payment to each tendering Holder in the amount of
the purchase price. In the event that the aggregate purchase price of the
Securities delivered by the Company to the Trustee is less than the Offer
Amount, the Trustee or the Paying Agent shall deliver the excess to the Company
immediately after the expiration of the Offer Period for application in
accordance with this Section 4.07.
(3) Holders electing to have a Security purchased shall be required to
surrender the Security, with an appropriate form duly completed, to the Company
or its agent at the address specified in the notice at least three Business Days
prior to the Purchase Date. Holders shall be entitled to withdraw their election
if the Trustee or the Company receives not later than one Business Day prior to
the Purchase Date a telegram, telex, facsimile transmission or letter setting
forth the name of the Holder, the principal amount of the Security that was
delivered for purchase by the Holder and a statement that such Holder is
withdrawing its election to have such Security purchased. If at the expiration
of the Offer Period the aggregate principal amount of Securities surrendered by
42
Holders exceeds the Offer Amount, the Company shall select the Securities to be
purchased on a pro rata basis for all Securities (with such adjustments as may
be deemed appropriate by the Company so that only Securities in denominations of
$1,000, or integral multiples thereof, shall be purchased). Holders whose
Securities are purchased only in part shall be issued new Securities equal in
principal amount to the unpurchased portion of the Securities surrendered.
(4) At the time the Company delivers Securities to the Trustee that are
to be accepted for purchase, the Company shall also deliver an Officers'
Certificate stating that such Securities are to be accepted by the Company
pursuant to and in accordance with the terms of this Section 4.07. A Security
shall be deemed to have been accepted for purchase at the time the Trustee or
the Paying Agent mails or delivers payment therefor to the surrendering Holder.
(e) The Company will comply, to the extent applicable, with the
requirements of Section 14(e) of the Exchange Act and any other securities laws
or regulations in connection with the repurchase of Securities pursuant to this
Section 4.07. To the extent that the provisions of any securities laws or
regulations conflict with provisions of this Section 4.07, the Company will
comply with the applicable securities laws and regulations and will not be
deemed to have breached its obligations under this Section 4.07 by virtue
thereof.
SECTION 4.08. Limitation on Restrictions on Distributions from
Restricted Subsidiaries. The Company shall not, and shall not permit any
Restricted Subsidiary to, directly or indirectly, create or otherwise cause or
suffer to exist any consensual restriction on the right of any Restricted
Subsidiary to:
(a) pay dividends, in cash or otherwise, or make any other
distributions on or in respect of its Capital Stock, or pay any Debt or
other obligation owed, to the Company or any other Restricted Subsidiary,
(b) make any loans or advances to the Company or any other Restricted
Subsidiary, or
(c) transfer any of its Property to the Company or any other Restricted
Subsidiary.
The foregoing limitations will not apply:
(1) with respect to clauses (a), (b) and (c), to restrictions:
(A) contained in an agreement or instrument governing or relating
to Debt contained in any Credit Facility outstanding pursuant to clause
(b) of the definition of Permitted Debt in Section 4.03; provided,
however, that:
(x) the provisions of any Credit Facilities with a Stated
Maturity prior to the scheduled maturity date of the Securities
must permit distributions to the Company for the sole purpose of,
and in
43
an amount sufficient to fund, the payment of interest when due as
scheduled in respect of the Securities, and
(y) the provisions of any Credit Facilities with a Stated
Maturity on or after the scheduled maturity date of the
Securities must permit distributions to the Company for the sole
purpose of, and in an amount sufficient to fund, the payment of
principal at scheduled maturity and interest when due as
scheduled in respect of the Securities
(provided, in the case of both (x) and (y), that such payment is due or
to become due within 30 days from the date of such distribution and the
cash distributed is in fact utilized to meet such payment obligation),
at a time, in the case of both (x) and (y), when there does not exist
an event (or such distribution would not cause an event) which, with
the passage of time or notice or both, would permit the lenders under
any Credit Facility to declare all amounts thereunder due and payable;
provided further, however, that such agreement or instrument may
nevertheless contain customary financial covenants,
(B) relating to Debt of a Restricted Subsidiary and existing at
the time it became a Restricted Subsidiary if such restriction was not
created in connection with or in anticipation of the transaction or
series of transactions pursuant to which such Restricted Subsidiary
became a Restricted Subsidiary or was acquired by the Company, or
(C) that result from the Refinancing of Debt Incurred pursuant to
an agreement referred to in clause (1)(A) or (B) above or in clause
(2)(A) or (B) below, provided such restriction is not materially less
favorable to the Holders than those under the agreement evidencing the
Debt so Refinanced, and
(2) with respect to clause (c) only, to restrictions:
(A) relating to Debt that is permitted to be Incurred and secured
without also securing the Securities or the applicable Subsidiary
Guaranty pursuant to Sections 4.03 and 4.05 that limit the right of the
debtor to dispose of the Property securing such Debt,
(B) encumbering Property at the time such Property was acquired
by the Company or any Restricted Subsidiary, so long as such
restriction relates solely to the Property so acquired and was not
created in connection with or in anticipation of such acquisition,
(C) resulting from customary provisions restricting subletting or
assignment of leases or licenses or customary provisions in other
agreements that restrict assignment of such agreements or rights
thereunder,
44
(D) customarily contained in property sale agreements limiting
the transfer of such Property pending the closing of such sale, or
(E) customarily contained in Debt instruments limiting the sale
of all or substantially all the assets of the obligor.
SECTION 4.09. Limitation on Transactions with Affiliates. The Company
shall not, and shall not permit any Restricted Subsidiary to, directly or
indirectly, conduct any business or enter into or suffer to exist any
transaction or series of transactions (including the purchase, sale, transfer,
assignment, lease, conveyance or exchange of any Property or the rendering of
any service) with, or for the benefit of, any Affiliate of the Company (an
"Affiliate Transaction"), unless:
(a) the terms of such Affiliate Transaction are:
(1) set forth in writing, and
(2) no less favorable to the Company or such Restricted
Subsidiary, as the case may be, than those that could be obtained in a
comparable arm's-length transaction with a Person that is not an
Affiliate of the Company,
(b) if such Affiliate Transaction involves aggregate payments or value
in excess of $5.0 million, the Board of Directors (including a majority of
the disinterested members of the Board of Directors) approves such
Affiliate Transaction and, in its good faith judgment, believes that such
Affiliate Transaction complies with clause (a)(2) of this paragraph, as
evidenced by a Board Resolution promptly delivered to the Trustee, and
(c) if such Affiliate Transaction involves aggregate payments or value
in excess of $25.0 million, the Company obtains a written opinion from an
Independent Financial Advisor to the effect that the consideration to be
paid or received in connection with such Affiliate Transaction is fair,
from a financial point of view, to the Company and the Restricted
Subsidiaries, taken as a whole.
Notwithstanding the foregoing limitation, the Company or any Restricted
Subsidiary may enter into or suffer to exist the following:
(a) any transaction or series of transactions between the Company and
one or more Restricted Subsidiaries or between two or more Restricted
Subsidiaries, provided, however, that no more than 10% of the total voting
power of the Voting Stock (on a fully diluted basis) of any such Restricted
Subsidiary is owned by an Affiliate of the Company (other than a Restricted
Subsidiary);
(b) any Restricted Payment permitted to be made pursuant to Section
4.04 or any Permitted Investment;
(c) the payment of compensation (including amounts paid pursuant to
employee benefit plans) and the provision of benefits for the personal
services of
45
officers, directors and employees of the Company or any of the Restricted
Subsidiaries, so long as the Board of Directors in good faith shall have
approved the terms thereof;
(d) loans and advances to employees made in the ordinary course of
business and consistent with the past practices of the Company or such
Restricted Subsidiary, as the case may be, provided, however, that such
loans and advances do not exceed $3.0 million in the aggregate at any one
time outstanding; and
(e) any transaction or series of transactions pursuant to any agreement
in existence on the Issue Date, and any renewal, extension or replacement
of such agreement on terms no less favorable to the Company and the
Restricted Subsidiaries than the agreement in existence on the Issue Date.
SECTION 4.10. Limitation on Layered Debt. The Company shall not permit
any Subsidiary Guarantor to Incur, directly or indirectly, any Debt that is
subordinate or junior in right of payment to any Senior Debt unless such debt is
expressly subordinated in right of payment to, or ranks pari passu with, the
Obligations under its Subsidiary Guaranty.
SECTION 4.11. Designation of Restricted and Unrestricted Subsidiaries.
The Board of Directors may designate any Subsidiary of the Company to be an
Unrestricted Subsidiary if:
(a) the Subsidiary to be so designated does not own any Capital Stock
or Debt of, or own or hold any Lien on any Property of, the Company or any
other Restricted Subsidiary,
(b) either:
(1) the Subsidiary to be so designated has total assets of $1,000
or less, or
(2) such designation is effective immediately upon such entity
becoming a Subsidiary of the Company, and
(c) neither the Company nor any Restricted Subsidiary is directly or
indirectly liable for any Debt that provides that the holder thereof may
(with the passage of time or notice or both) declare a default thereon or
cause the payment thereof to be accelerated or payable prior to its Stated
Maturity upon the occurrence of a default with respect to any Debt, Lien or
other obligation of the Subsidiary to be so designated (including any right
to take enforcement action against the Subsidiary to be so designated).
Unless so designated as an Unrestricted Subsidiary, any Person that becomes a
Subsidiary of the Company will be classified as a Restricted Subsidiary;
provided, however, that such Subsidiary shall not be designated a Restricted
Subsidiary and shall be automatically classified as an Unrestricted Subsidiary
if either of the requirements set forth in clauses (x) and (y) of the third
immediately following paragraph will not be satisfied after
46
giving pro forma effect to such classification or if such Person is a Subsidiary
of an Unrestricted Subsidiary.
In addition, neither the Company nor any Restricted Subsidiary shall
become directly or indirectly liable for any Debt that provides that the holder
thereof may (with the passage of time or notice or both) declare a default
thereon or cause the payment thereof to be accelerated or payable prior to its
Stated Maturity upon the occurrence of a default with respect to any Debt, Lien
or other obligation of any Unrestricted Subsidiary (including any right to take
enforcement action against such Unrestricted Subsidiary).
Except as provided in the first sentence of the next preceding
paragraph, no Restricted Subsidiary may be redesignated as an Unrestricted
Subsidiary. Upon designation of a Restricted Subsidiary as an Unrestricted
Subsidiary in compliance with this Section 4.11, such Restricted Subsidiary
shall, by execution and delivery of a supplemental indenture in form
satisfactory to the Trustee, be released from any Subsidiary Guaranty previously
made by such Restricted Subsidiary.
The Board of Directors may designate any Unrestricted Subsidiary to be
a Restricted Subsidiary if, immediately after giving pro forma effect to such
designation,
(x) the Company could Incur at least $1.00 of additional Debt pursuant
to clause (1) of the first paragraph of Section 4.03, and
(y) no Default or Event of Default shall have occurred and be
continuing or would result therefrom.
Any such designation or redesignation by the Board of Directors will be
evidenced to the Trustee by filing with the Trustee a Board Resolution giving
effect to such designation or redesignation and an Officers' Certificate that:
(a) certifies that such designation or redesignation complies with the
foregoing provisions, and
(b) gives the effective date of such designation or redesignation, such
filing with the Trustee to occur within 45 days after the end of the fiscal
quarter of the Company in which such designation or redesignation is made
(or, in the case of a designation or redesignation made during the last
fiscal quarter of the Company's fiscal year, within 90 days after the end
of such fiscal year).
SECTION 4.12. Limitation on Sale and Leaseback Transactions. The
Company shall not, and shall not permit any Restricted Subsidiary to, enter into
any Sale and Leaseback Transaction with respect to any Property unless:
(a) the Company or such Restricted Subsidiary would be entitled to:
(1) Incur Debt in an amount equal to the Attributable Debt with
respect to such Sale and Leaseback Transaction pursuant to Section
4.03, and
47
(2) create a Lien on such Property securing such Attributable
Debt without also securing the Securities or the applicable Subsidiary
Guaranty pursuant to Section 4.05, and
(b) such Sale and Leaseback Transaction is effected in compliance with
Section 4.07.
SECTION 4.13. Limitation on Company's Business. The Company shall not,
and shall not permit any Restricted Subsidiary to, engage in any business other
than the Telecommunications Business.
SECTION 4.14. Change of Control. Upon the occurrence of a Change of
Control, each Holder shall have the right to require the Company to repurchase
all or any part of such Holder's Securities pursuant to the offer described
below (the "Change of Control Offer") at a purchase price (the "Change of
Control Purchase Price") equal to 101.0% of the principal amount thereof, plus
accrued and unpaid interest, if any, to the purchase date (subject to the right
of Holders of record on the relevant record date to receive interest due on the
relevant interest payment date).
Within 30 days following any Change of Control, the Company shall
(a) cause a notice of the Change of Control Offer to be sent at least
once to the Dow Xxxxx News Service or a similar business news service in
the United States, and
(b) send, by first-class mail, with a copy to the Trustee, to each
Holder of Securities, at such Holder's address appearing in the Security
Register, a notice stating:
(1) that a Change of Control Offer is being made pursuant to this
Section 4.14 and that all Securities 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 (the "Change of Control Payment Date");
(3) that any Security (or portion thereof) accepted for payment
(and duly paid on the Change of Control Payment Date) pursuant to the
Change of Control Offer shall cease to accrete interest after the
Change of Control Payment Date;
(4) that any Security (or portions thereof) not properly tendered
will continue to accrete interest;
(5) the circumstances and relevant facts regarding the Change of
Control (including, if and to the extent material, information with
respect
48
to pro forma historical income, cash flow and capitalization after
giving effect to the Change of Control); and
(6) the procedures that Holders must follow in order to tender
their Securities (or portions thereof) for payment and the procedures
that Holders must follow in order to withdraw an election to tender
Securities (or portions thereof) for payment.
Holders electing to have a Security purchased shall be required to
surrender the Security, with an appropriate form duly completed, to the Company
or its agent at the address specified in the notice at least three Business Days
prior to the Change of Control Payment Date. Holders shall be entitled to
withdraw their election if the Trustee or the Company receives not later than
one Business Day prior to the Change of Control Payment Date a telegram, telex,
facsimile transmission or letter setting forth the name of the Holder, the
principal amount of the Security that was delivered for purchase by the Holder
and a statement that such Holder is withdrawing its election to have such
Security purchased.
On or prior to the Change of Control Payment Date, the Company shall
irrevocably deposit with the Trustee or with the Paying Agent (or, if the
Company or any of its Wholly Owned Subsidiaries is acting as the Paying Agent,
segregate and hold in trust) in cash an amount equal to the Change of Control
Purchase Price payable to the Holders entitled thereto, to be held for payment
in accordance with the provisions of this Section 4.14. On the Change of Control
Payment Date, the Company shall deliver to the Trustee the Securities or
portions thereof that have been properly tendered to and are to be accepted by
the Company for payment. The Trustee or the Paying Agent shall, on the Change of
Control Payment Date, mail or deliver payment to each tendering Holder of the
Change of Control Purchase Price. In the event that the aggregate Change of
Control Purchase Price is less than the amount delivered by the Company to the
Trustee or the Paying Agent, the Trustee or the Paying Agent, as the case may
be, shall deliver the excess to the Company immediately after the Change of
Control Payment Date.
The Company will comply, to the extent applicable, with the
requirements of Section 14(e) of the Exchange Act and any other securities laws
or regulations in connection with the purchase of Securities pursuant to this
Section 4.14. To the extent that the provisions of any securities laws or
regulations conflict with the provisions of this Section 4.14, the Company will
comply with the applicable securities laws and regulations and will not be
deemed to have breached its obligations under this Section 4.14 by virtue
thereof.
SECTION 4.15. Future Subsidiary Guarantors. The Company shall cause
each Person that becomes a Domestic Restricted Subsidiary following the Issue
Date to become a Subsidiary Guarantor by causing such Person to execute and
deliver to the Trustee a Supplemental Indenture as provided in Section 10.06 at
the time such Person becomes a Domestic Restricted Subsidiary.
SECTION 4.16. Compliance Certificate. The Company shall deliver to the
Trustee within 120 days after the end of each fiscal year of the Company an
Officers' Certificate stating that in the course of the performance by the
signers of their duties as Officers of the Company they would normally have
knowledge of any Default and
49
whether or not the signers know of any Default that occurred during such period.
If they do, the certificate shall describe the Default, its status and what
action the Company is taking or proposes to take with respect thereto. The
Company also shall comply with TIA (Section) 314(a)(4).
SECTION 4.17. OID Certificate. If upon issuance of the Securities the
Company determines that the Securities will be issued with "Original Issue
Discount," as defined by the Code, within 30 days after the end of each calendar
year, the Company shall deliver to the Trustee a certificate setting forth the
following:
(a) the total cumulative amount of Original Issue Discount that had
accrued on the Securities as of December 31 of such calendar year;
(b) the portion of such Original Issue Discount that had accrued during
such calendar year; and
(c) such other specific information relating to the accrued Original
Issue Discount of the Securities as may be relevant under the Code to the
holders of the Securities.
SECTION 4.18. Information Reporting. If upon issuance of the Securities
the Company determines that the Securities will be issued with "Original Issue
Discount," as defined by the Code within 30 days after the Issue Date, the
Company shall file an information return on Form 8281 in accordance with
Treasury Regulation (Section) 1.1275-3(c). The Company shall be responsible for
the timely preparation and delivery of all annual information returns required
under the Code and applicable Treasury Regulations including, without
limitation, the timely preparation and delivery of IRS Form 1099-OID. .
SECTION 4.19. Further Instruments and Acts. Upon request of the
Trustee, the Company shall execute and deliver such further instruments and do
such further acts as may be reasonably necessary or proper to carry out more
effectively the purpose of this Indenture.
ARTICLE V
Successor Company
SECTION 5.01. When Company May Merge or Transfer Assets. The Company
shall not merge, consolidate or amalgamate with or into any other Person (other
than a merger of a Wholly Owned Restricted Subsidiary into the Company) or sell,
transfer, assign, lease, convey or otherwise dispose of all or substantially all
its Property in any one transaction or series of transactions unless:
(a) the Company shall be the surviving Person (the "Surviving Person") or
the Surviving Person (if other than the Company) formed by such merger,
consolidation or amalgamation or to which such sale, transfer, assignment,
lease, conveyance or disposition is made shall be a corporation organized
and existing
50
under the laws of the United States of America, any State thereof or the
District of Columbia;
(b) the Surviving Person (if other than the Company) expressly assumes, by
supplemental indenture in form satisfactory to the Trustee, executed and
delivered to the Trustee by such Surviving Person, the due and punctual
payment of the principal of, and premium, if any, and interest on, all the
Securities, according to their tenor, and the due and punctual performance
and observance of all the covenants and conditions of this Indenture to be
performed by the Company;
(c) in the case of a sale, transfer, assignment, lease, conveyance or other
disposition of all or substantially all the Property of the Company, such
Property shall have been transferred as an entirety or virtually as an
entirety to one Person;
(d) immediately before and after giving effect to such transaction or
series of transactions on a pro forma basis (and treating, for purposes of
this clause (d) and clause (e) below, any Debt that becomes, or is
anticipated to become, an obligation of the Surviving Person or any
Restricted Subsidiary as a result of such transaction or series of
transactions as having been Incurred by the Surviving Person or such
Restricted Subsidiary at the time of such transaction or series of
transactions), no Default or Event of Default shall have occurred and be
continuing;
(e) immediately after giving effect to such transaction or series of
transactions on a pro forma basis, either (A) the Company or the Surviving
Person, as the case may be, would be able to Incur at least $1.00 of
additional Debt under clause (1) of the first paragraph of Section 4.03, or
(B) in the event of such a transaction or series of transactions with
Sprint PCS or a Sprint PCS Affiliate occurring prior to January 1, 2005,
(i) the Leverage Ratio immediately following such transaction or series of
transactions would decrease as compared to the Leverage Ratio immediately
prior to such transaction or series of transactions, and (ii) after giving
effect to such transaction or series of transactions, the Leverage Ratio
would not exceed 7.75 to 1.0;
(f) the Company shall deliver, or cause to be 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 transaction
and the supplemental indenture, if any, in respect thereto comply with this
Section 5.01 and that all conditions precedent herein provided for relating
to such transaction have been satisfied; and
(g) the Surviving Person shall have delivered to the Trustee an Opinion of
Counsel to the effect that the holders will not recognize income, gain or
loss for U.S. federal income tax purposes as a result of such transaction
or series of transactions and will be subject to U.S. federal income tax on
the same amounts and at the same times as would be the case if the
transaction or series of transactions had not occurred.
51
SECTION 5.02. When a Subsidiary Guarantor May Merge or Transfer Assets.
The Company shall not permit any Subsidiary Guarantor to merge, consolidate or
amalgamate with or into any other Person (other than a merger of a Wholly Owned
Restricted Subsidiary into such Subsidiary Guarantor) or sell, transfer, assign,
lease, convey or otherwise dispose of all or substantially all such Subsidiary
Guarantor's Property in any one transaction or series of transactions unless:
(a) the Surviving Person (if not such Subsidiary Guarantor) formed by
such merger, consolidation or amalgamation or to which such sale, transfer,
assignment, lease, conveyance or disposition is made shall be a corporation
organized and existing under the laws of the United States of America, any
State thereof or the District of Columbia;
(b) the Surviving Person (if other than such Subsidiary Guarantor)
expressly assumes, by Subsidiary Guaranty in form satisfactory to the
Trustee, executed and delivered to the Trustee by such Surviving Person,
the due and punctual performance and observance of all the obligations of
such Subsidiary Guarantor under its Subsidiary Guaranty;
(c) in the case of a sale, transfer, assignment, lease, conveyance or
other disposition of all or substantially all the Property of such
Subsidiary Guarantor, such Property shall have been transferred as an
entirety or virtually as an entirety to one Person;
(d) immediately before and after giving effect to such transaction or
series of transactions on a pro forma basis (and treating, for purposes of
this clause (d) and clause (e) below, any Debt that becomes, or is
anticipated to become, an obligation of the Surviving Person, the Company
or any Restricted Subsidiary as a result of such transaction or series of
transactions as having been Incurred by the Surviving Person, the Company
or such Restricted Subsidiary at the time of such transaction or series of
transactions), no Default or Event of Default shall have occurred and be
continuing;
(e) immediately after giving effect to such transaction or series of
transactions on a pro forma basis, either (A) the Company would be able to
Incur at least $1.00 of additional Debt under clause (1) of the first
paragraph of Section 4.03, or (B) in the event of such a transaction or
series of transactions with Sprint PCS or a Sprint PCS Affiliate occurring
prior to January 1, 2005, (i) the Leverage Ratio immediately following such
transaction or series of transactions would decrease as compared to the
Leverage Ratio immediately prior to such transaction or series of
transactions and (ii) after giving effect to such transaction or series of
transactions, the Leverage Ratio would not exceed 7.75 to 1.00; and
(f) the Company shall deliver, or cause to be 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
transaction and such Subsidiary Guaranty, if any, in respect thereto comply
with this Section 5.02 and that all conditions precedent herein provided
for relating to such transaction have been satisfied.
52
The foregoing provisions (other than clause (d)) shall not apply to any
transactions which constitute an Asset Sale if the Company has complied with
Section 4.07.
The Surviving Person shall succeed to, and be substituted for, and may
exercise every right and power of the Company under the Indenture (or of the
Subsidiary Guarantor under the Subsidiary Guaranty, as the case may be), but the
predecessor Company in the case of:
(a) a sale, transfer, assignment, conveyance or other disposition
(unless such sale, transfer, assignment, conveyance or other disposition is
of all the assets of the Company as an entirety or virtually as an
entirety), or
(b) a lease,
shall not be released from the obligations to pay the principal of, and premium,
if any, and interest on, the Securities.
ARTICLE VI
Defaults and Remedies
SECTION 6.01. Events of Default. The following events shall be "Events
of Default":
(1) the Company defaults in any payment of interest on any Security
when the same becomes due and payable, and such default continues for a
period of 30 days;
(2) the Company defaults in the payment of principal of, or premium, if
any, on, any Security when the same becomes due and payable at its Stated
Maturity, upon acceleration, redemption, optional redemption, required
repurchase or otherwise;
(3) the Company or any Subsidiary Guarantor fails to comply with
Article V;
(4) the Company fails to comply with any covenant or agreement in the
Securities or in this Indenture (other than a failure that is the subject
of the foregoing clause (1), (2) or (3)) and such failure continues for 30
days after written notice is given to the Company as specified below;
(5) a default by the Company or any Restricted Subsidiary under any
Debt of the Company or any Restricted Subsidiary which results in
acceleration of the maturity of such Debt, or the failure to pay any such
Debt at maturity, in an aggregate amount in excess of $15.0 million;
53
(6) the Company or any Significant Subsidiary pursuant to or within the
meaning of any Bankruptcy Law:
(A) commences a voluntary case;
(B) consents to the entry of an order for relief against it in an
involuntary case;
(C) consents to the appointment of a Custodian of it or for any
substantial part of its property; or
(D) makes a general assignment for the benefit of its creditors;
or takes any comparable action under any foreign laws relating to
insolvency;
(7) a court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that:
(A) is for relief against the Company or any Significant
Subsidiary in an involuntary case;
(B) appoints a Custodian of the Company or any Significant
Subsidiary or for any substantial part of its property; or
(C) orders the winding up or liquidation of the Company or any
Significant Subsidiary; or
(D) grants any similar relief under any foreign laws;
and in each such case the order or decree remains unstayed and in effect
for 30 days;
(8) any judgment or judgments for the payment of money in an aggregate
amount in excess of $15.0 million is entered against the Company or any
Restricted Subsidiary and shall not be waived, satisfied or discharged for
any period of 60 consecutive days during which a stay of enforcement shall
not be in effect;
(9) any Subsidiary Guaranty ceases to be in full force and effect
(other than in accordance with the terms of this Indenture and such
Subsidiary Guaranty) or any Subsidiary Guarantor denies or disaffirms its
obligations under its Subsidiary Guaranty; or
(10) any event occurs that causes, after giving effect to the
expiration of any applicable grace period, an Event of Termination.
The foregoing will constitute Events of Default whatever the reason for
any such Event of Default and whether it is voluntary or involuntary or is
effected by
54
operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body.
The term "Bankruptcy Law" means Xxxxx 00, Xxxxxx Xxxxxx Code, or any
similar U.S. federal or state law for the relief of debtors. The term
"Custodian" means any receiver, trustee, assignee, liquidator, custodian or
similar official under any Bankruptcy Law.
A Default under clause (4) is not an Event of Default until the Trustee
or the Holders of at least 25% in aggregate principal amount of the Securities
then outstanding notify the Company (and in the case of such notice by Holders,
the Trustee) of the Default and the Company does not cure such Default within
the time specified after receipt of such notice. Such notice must specify the
Default, demand that it be remedied and state that such notice is a "Notice of
Default".
The Company shall deliver to the Trustee, within 30 days after the
occurrence thereof, written notice in the form of an Officers' Certificate of
any Event of Default and any event that with the giving of notice or the lapse
of time would become an Event of Default, its status and what action the Company
is taking or proposes to take with respect thereto.
SECTION 6.02. Acceleration. If an Event of Default (other than an Event
of Default specified in Section 6.01(6) or (7) with respect to the Company)
occurs and is continuing, the Trustee by notice to the Company, or the Holders
of at least 25% in aggregate principal amount of the Securities then outstanding
by notice to the Company and the Trustee, may declare the principal amount of
and accrued and unpaid interest on all the Securities to be due and payable.
Upon such a declaration, such principal amount and interest shall be due and
payable immediately. If an Event of Default specified in Section 6.01(6) or (7)
with respect to the Company occurs, the principal amount of and accrued and
unpaid interest on all the Securities shall, automatically and without any
action by the Trustee or any Holder, become and be immediately due and payable.
The Holders of a majority in aggregate principal amount of the outstanding
Securities by notice to the Trustee and the Company may rescind any declaration
of acceleration if the rescission would not conflict with any judgment or decree
and if all existing Events of Default have been cured or waived except
nonpayment of principal or interest that has become due solely because of the
acceleration. No such rescission shall affect any subsequent Default or impair
any right consequent thereto.
SECTION 6.03. Other Remedies. If an Event of Default occurs and is
continuing, the Trustee may pursue any available remedy to collect the payment
of principal of or interest on the Securities or to enforce the performance of
any provision of the Securities or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any
of the Securities or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Securityholder in exercising any right or remedy
accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. No remedy is
exclusive of any other remedy. All available remedies are cumulative.
55
SECTION 6.04. Waiver of Past Defaults. The Holders of a majority in
aggregate principal amount of the Securities then outstanding by notice to the
Trustee may waive an existing Default and its consequences except (i) a Default
in the payment of the principal of or the premium, if any, or interest on a
Security, or (ii) a Default in respect of a provision that under Section 9.02
cannot be amended without the consent of each Securityholder affected. When a
Default is waived, it is deemed cured, but no such waiver shall extend to any
subsequent or other Default or impair any consequent right.
SECTION 6.05. Control by Majority. The Holders of a majority in
aggregate principal amount of the Securities then outstanding may direct the
time, method and place of conducting any proceeding for any remedy available to
the Trustee or of exercising any trust or power conferred on the Trustee with
respect to the Securities. However, the Trustee may refuse to follow any
direction that conflicts with law or this Indenture or, subject to Section 7.01,
that the Trustee determines is unduly prejudicial to the rights of other
Securityholders or would involve the Trustee in personal liability; provided,
however, that the Trustee may take any other action deemed proper by the Trustee
that is not inconsistent with such direction. Prior to taking any action
hereunder, the Trustee shall be entitled to reasonable indemnification against
all losses and expenses caused by taking or not taking such action.
SECTION 6.06. Limitation on Suits. A Securityholder may not pursue any
remedy with respect to this Indenture or the Securities unless:
(1) such Holder shall have previously given to the Trustee written
notice of a continuing Event of Default;
(2) the Holders of at least 25% in aggregate principal amount of the
Securities then outstanding shall have made a written request, and such
Holder or Holders shall have offered reasonable indemnity to the Trustee to
pursue such proceeding as trustee; and
(3) the Trustee has failed to institute such proceeding and has not
received from the Holders of at least a majority in aggregate principal
amount of the Securities outstanding a direction inconsistent with such
request, within 60 days after such notice, request and offer.
The foregoing limitations on the pursuit of remedies by a
Securityholder shall not apply to a suit instituted by a Holder of Securities
for the enforcement of payment of the principal of or premium, if any, or
interest on such Security on or after the applicable due date specified in such
Security. A Securityholder may not use this Indenture to prejudice the rights of
another Securityholder or to obtain a preference or priority over another
Securityholder.
SECTION 6.07. Rights of Holders To Receive Payment. Notwithstanding any
other provision of this Indenture, the right of any Holder to receive payment of
principal of and premium, if any, and interest on the Securities held by such
Holder, on or after the respective due dates expressed in the Securities, or to
bring suit for the enforcement of any such payment on or after such respective
dates, shall not be impaired or affected without the consent of such Holder.
56
SECTION 6.08. Collection Suit by Trustee. If an Event of Default
specified in Section 6.01(1) or (2) occurs and is continuing, the Trustee may
recover judgment in its own name and as trustee of an express trust against the
Company for the whole amount then due and owing (together with interest on any
unpaid interest to the extent lawful) and the amounts provided for in Section
7.07.
SECTION 6.09. Trustee May File Proofs of Claim. The Trustee may file
such proofs of claim and other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee and the Securityholders
allowed in any judicial proceedings relative to the Company, its creditors or
its property and, unless prohibited by law or applicable regulations, may vote
on behalf of the Holders in any election of a trustee in bankruptcy or other
Person performing similar functions, and any Custodian in any such judicial
proceeding is hereby authorized by each Holder to make payments to the Trustee
and, in the event that the Trustee shall consent to the making of such payments
directly to the Holders, to pay to the Trustee any amount due it for the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and its counsel, and any other amounts due the Trustee under Section
7.07.
SECTION 6.10. Priorities. If the Trustee collects any money or property
pursuant to this Article VI, it shall pay out the money or property in the
following order:
FIRST: to the Trustee for amounts due under Section 7.07;
SECOND: to Securityholders for amounts due and unpaid on the Securities
for principal, premium, if any, and interest, ratably, without preference
or priority of any kind, according to the amounts due and payable on the
Securities for principal, premium, if any, and interest, respectively; and
THIRD: to the Company.
The Trustee may fix a record date and payment date for any payment to
Securityholders pursuant to this Section. At least 15 days before such record
date, the Company shall mail to each Securityholder and the Trustee a notice
that states the record date, payment date and amount to be paid.
SECTION 6.11. Undertaking for Costs. In any suit for the enforcement of
any right or remedy under this Indenture or in any suit against the Trustee for
any action taken or omitted by it as Trustee, a court in its discretion may
require the filing by any party litigant in the suit of an undertaking to pay
the costs of the suit, and the court in its discretion may assess reasonable
costs, including reasonable attorneys' fees, against any party litigant in the
suit, having due regard to the merits and good faith of the claims or defenses
made by the party litigant. This Section 6.11 does not apply to a suit by the
Trustee, a suit by a Holder pursuant to Section 6.07 or a suit by Holders of
more than 10% in aggregate principal amount of the Securities.
SECTION 6.12. Waiver of Stay or Extension Laws. The Company (to the
extent it may lawfully do so) shall not at any time insist upon, or plead, or in
any manner whatsoever claim or take the benefit or advantage of, any stay or
extension law wherever enacted, now or at any time hereafter in force, that may
affect the covenants or the
57
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 shall not hinder, delay or impede the execution of any power herein
granted to the Trustee but shall suffer and permit the execution of every such
power as though no such law had been enacted.
ARTICLE VII
Trustee
SECTION 7.01. Duties of Trustee. (a) If an Event of Default has
occurred and is continuing, the Trustee shall exercise the rights and powers
vested in it by this Indenture and use the same degree of care and skill in
their exercise as a prudent Person would exercise or use under the circumstances
in the conduct of such Person's own affairs.
(b) Except during the continuance of an Event of Default:
(1) the Trustee undertakes to perform such duties and only such duties
as are specifically set forth in this Indenture and no implied covenants or
obligations shall be read into this Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions furnished to
the Trustee and conforming to the requirements of this Indenture. However,
the Trustee shall examine the certificates and opinions to determine
whether or not they conform to the requirements of this Indenture.
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own wilful misconduct,
except that:
(1) this paragraph does not limit the effect of paragraph (b) of this
Section 7.01;
(2) the Trustee shall not be liable for any error of judgment made in
good faith by a Trust Officer unless it is proved that the Trustee was
negligent in ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect to any action it takes
or omits to take in good faith in accordance with a direction received by
it pursuant to Section 6.05.
(d) Every provision of this Indenture that in any way relates to the
Trustee is subject to paragraphs (a), (b) and (c) of this Section 7.01.
(e) The Trustee shall not be liable for interest on any money received
by it except as the Trustee may agree in writing with the Company.
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(f) Money held in trust by the Trustee need not be segregated from
other funds except to the extent required by law.
(g) No provision of this Indenture shall require the Trustee to expend
or risk its own funds or otherwise incur financial liability in the performance
of any of its duties hereunder or in the exercise of any of its rights or
powers.
(h) 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 7.01 and to the provisions of the TIA
and the provisions of this Article VII shall apply to the Trustee in its role as
Registrar, Paying Agent and Custodian.
(i) The Trustee shall not be deemed to have notice of a Default or an
Event of Default unless (a) the Trustee has received written notice thereof from
the Company or any Holder, or (b) a Trust Officer shall have actual knowledge
thereof.
SECTION 7.02. Rights of Trustee. (a) The Trustee may rely on any
document believed by it to be genuine and to have been signed or presented by
the proper person. The Trustee need not investigate any fact or matter stated in
the document. The Trustee may, however, in its discretion make such further
inquiry or investigation into such facts or matters as it may see fit and, if
the Trustee shall determine to make such further inquiry or investigation, it
shall be entitled to examine the books, records and premises of the Company,
personally or by agent or attorney.
(b) Before the Trustee acts or refrains from acting, it may require an
Officers' Certificate or an Opinion of Counsel. The Trustee shall not be liable
for any action it takes or omits to take in good faith in reliance on the
Officers' Certificate or Opinion of Counsel.
(c) The Trustee may act through agents and shall not be responsible for
the misconduct or negligence of any agent appointed with due care.
(d) The Trustee shall not be liable for any action it takes or omits to
take in good faith that it believes to be authorized or within its rights or
powers; provided, however, that the Trustee's conduct does not constitute wilful
misconduct or negligence.
(e) The Trustee may consult with counsel, and the advice or opinion of
counsel with respect to legal matters relating to this Indenture and the
Securities shall be full and complete authorization and protection from
liability in respect to any action taken, omitted or suffered by it hereunder in
good faith and in accordance with the advice or opinion of such counsel.
(f) The permissive rights of the Trustee to do things enumerated in
this Indenture shall not be construed as a duty unless so specified herein.
SECTION 7.03. Individual Rights of Trustee. The Trustee in its
individual or any other capacity may become the owner or pledgee of Securities
and may otherwise deal with the Company or its Affiliates with the same rights
it would have if it
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were not Trustee. Any Paying Agent, Registrar or co-registrar may do the same
with like rights. However, the Trustee must comply with Sections 7.10 and 7.11.
SECTION 7.04. Trustee's Disclaimer. The Trustee shall not be
responsible for and makes no representation as to the validity, priority or
adequacy of this Indenture or the Securities, it shall not be accountable for
the Company's use of the proceeds from the Securities, and it shall not be
responsible for any statement of the Company or any Subsidiary Guarantor in this
Indenture or in any document issued in connection with the sale of the
Securities or in the Securities other than the Trustee's certificate of
authentication.
SECTION 7.05. Notice of Defaults. If a Default or Event of Default
occurs and is continuing and if it is known to the Trustee, the Trustee shall
mail to each Securityholder notice of the Default or Event of Default within 90
days after it is known to a Trust Officer or written notice of it is received by
the Trustee. Except in the case of a Default or Event of Default in payment of
principal of, premium, if any, or interest on any Security, the Trustee may
withhold the notice if and so long as a committee of its Trust Officers in good
faith determines that withholding the notice is in the interests of
Securityholders.
SECTION 7.06. Reports by Trustee to Holders. As promptly as practicable
after each December 31 beginning with December 31, 2003, and in any event prior
to March 31 in each year, the Trustee shall mail to each Securityholder a brief
report dated as of December 31 each year that complies with TIA (Section)
313(a), if and to the extent required by such subsection. The Trustee shall also
comply with TIA (Section) 313(b).
A copy of each report at the time of its mailing to Securityholders
shall be filed with the Commission and each stock exchange (if any) on which the
Securities are listed. The Company agrees to notify promptly the Trustee
whenever the Securities become listed on any stock exchange and of any delisting
thereof.
SECTION 7.07. Compensation and Indemnity. The Company shall pay to the
Trustee from time to time reasonable compensation for its services. The
Trustee's compensation shall not be limited by any law on compensation of a
trustee of an express trust. The Company shall reimburse the Trustee upon
request for all reasonable out-of- pocket expenses incurred or made by it,
including costs of collection, in addition to the compensation for its services.
Such expenses shall include the reasonable compensation and expenses,
disbursements and advances of the Trustee's agents, counsel, accountants and
experts. The Company and each Subsidiary Guarantor, jointly and severally, shall
indemnify the Trustee against any and all loss, liability or expense (including
reasonable attorneys' fees) incurred by it in connection with the acceptance and
administration of this trust and the performance of its duties hereunder. The
Trustee shall notify the Company promptly of any claim for which it may seek
indemnity. Failure by the Trustee to so notify the Company shall not relieve the
Company or any Subsidiary Guarantor of its obligations hereunder. The Company
shall defend the claim and the Trustee may have separate counsel and the Company
and the Subsidiary Guarantors, as applicable, shall pay the fees and expenses of
such counsel. The Company need not reimburse any expense or indemnify against
any loss, liability or expense incurred by the Trustee through the Trustee's own
wilful misconduct, negligence or bad faith. The Company need not pay for any
settlement made by the Trustee without the Company's consent, such consent not
to
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be unreasonably withheld. All indemnifications and releases from liability
granted hereunder to the Trustee shall extend to its officers, directors,
employees, agents, successors and assigns.
To secure the Company's payment obligations in this Section 7.07, the
Trustee shall have a lien prior to the Securities on all money or property held
or collected by the Trustee other than money or property held in trust to pay
principal of and interest on particular Securities.
The Company's payment obligations pursuant to this Section 7.07 shall
survive the resignation or removal of the Trustee and the discharge of this
Indenture. When the Trustee incurs expenses after the occurrence of a Default
specified in Section 6.01(6) or (7) with respect to the Company, the expenses
are intended to constitute expenses of administration under the Bankruptcy Law.
SECTION 7.08. Replacement of Trustee. The Trustee may resign at any
time by so notifying the Company. The Holders of a majority in aggregate
principal amount of the Securities then outstanding may remove the Trustee by so
notifying the Trustee and may appoint a successor Trustee. The Company shall
remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged bankrupt or insolvent;
(3) a receiver or other public officer takes charge of the Trustee or
its property; or
(4) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns, is removed by the Company or by the Holders of
a majority in aggregate principal amount of the Securities then outstanding and
such Holders do not reasonably promptly appoint a successor Trustee, or if a
vacancy exists in the office of Trustee for any reason (the Trustee in such
event being referred to herein as the retiring Trustee), the Company shall
promptly appoint a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee shall mail a notice of its
succession to Securityholders. The retiring Trustee shall promptly transfer all
property held by it as Trustee to the successor Trustee, subject to the lien
provided for in Section 7.07.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee or the Holders of
10% in aggregate principal amount of the Securities then outstanding may
petition any court of competent jurisdiction for the appointment of a successor
Trustee.
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If the Trustee fails to comply with Section 7.10, any Securityholder
who has been a bona fide Holder of a Security for at least six months may
petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor Trustee.
Notwithstanding the replacement of the Trustee pursuant to this
Section, the Company's obligations under Section 7.07 shall continue for the
benefit of the retiring Trustee.
SECTION 7.09. Successor Trustee by Merger. If the Trustee consolidates
with, merges or converts into, or transfers all or substantially all its
corporate trust business or assets to, another corporation or banking
association, the resulting, surviving or transferee corporation or banking
association without any further act shall be the successor Trustee.
In case at the time such successor or successors by merger, conversion
or consolidation to the Trustee shall succeed to the trusts created by this
Indenture any of the Securities shall have been authenticated but not delivered,
any such successor to the Trustee may adopt the certificate of authentication of
any predecessor trustee, and deliver such Securities so authenticated; and in
case at that time any of the Securities shall not have been authenticated, any
such successor to the Trustee may authenticate such Securities either in the
name of any predecessor hereunder or in the name of the successor to the
Trustee; and in all such cases such certificates shall have the full force which
it is anywhere in the Securities or in this Indenture provided that the
certificate of the Trustee shall have.
SECTION 7.10. Eligibility; Disqualification. The Trustee shall at all
times satisfy the requirements of TIA (Section) 310(a). The Trustee shall have
(or, in the case of a corporation included in a bank holding company system, the
related bank holding company shall have) a combined capital and surplus of at
least $150.0 million as set forth in its (or its related bank holding company's)
most recent published annual report of condition. The Trustee shall comply with
TIA (Section) 310(b), subject to the penultimate paragraph thereof; provided,
however, that there shall be excluded from the operation of TIA (Section)
310(b)(1) any indenture or indentures under which other securities or
certificates of interest or participation in other securities of the Company are
outstanding if the requirements for such exclusion set forth in TIA (Section)
310(b)(1) are met.
SECTION 7.11. Preferential Collection of Claims Against Company. The
Trustee shall comply with TIA (Section) 311(a), excluding any creditor
relationship listed in TIA (Section) 311(b). A Trustee who has resigned or been
removed shall be subject to TIA (Section) 311(a) to the extent indicated.
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ARTICLE VIII
Discharge of Indenture; Defeasance
SECTION 8.01. Discharge of Liability on Securities; Defeasance. (a)
When (i) the Company delivers to the Trustee all outstanding Securities (other
than Securities replaced pursuant to Section 2.06) for cancellation, or (ii) all
outstanding Securities have become due and payable, whether at maturity or as a
result of the mailing of a notice of redemption pursuant to Article III and the
Company irrevocably deposits with the Trustee funds sufficient to pay at
maturity or upon redemption all outstanding Securities, including interest
thereon to maturity or such redemption date (other than Securities replaced
pursuant to Section 2.06), and if in either case the Company pays all other sums
payable hereunder by the Company, then this Indenture shall, subject to Section
8.01(c), cease to be of further effect. The Trustee shall acknowledge
satisfaction and discharge of this Indenture on demand of the Company
accompanied by an Officers' Certificate and an Opinion of Counsel and at the
cost and expense of the Company.
(b) Subject to Sections 8.01(c) and 8.02, the Company at any time may
terminate (i) all of its obligations under the Securities and this Indenture
("legal defeasance option"), or (ii) its obligations under Sections 4.02, 4.03,
4.04, 4.05, 4.06, 4.07, 4.08, 4.09, 4.10, 4.11, 4.12, 4.13, 4.14 and 4.15 and
the operation of Sections 6.01(5), 6.01(6), 6.01(7), 6.01(8), 6.01(9) and
6.01(10) (but, in the case of Sections 6.01(6) and (7), with respect only to
Significant Subsidiaries) and the limitations contained in clause (e) of
Sections 5.01 and 5.02 ("covenant defeasance option"). The Company may exercise
its legal defeasance option notwithstanding its prior exercise of its covenant
defeasance option.
If the Company exercises its legal defeasance option, payment of the
Securities may not be accelerated because of an Event of Default. If the Company
exercises its covenant defeasance option, payment of the Securities may not be
accelerated because of an Event of Default specified in Sections 6.01(4) (with
respect to the covenants of Article IV identified in the immediately preceding
paragraph), 6.01(5), 6.01(6), 6.01(7), 6.01(8), 6.01(9) and 6.01(10) (but, in
the case of Sections 6.01(6) and (7), with respect only to Significant
Subsidiaries) or because of the failure of the Company to comply with the
limitations contained in clause (e) of Sections 5.01 and 5.02. If the Company
exercises its legal defeasance option or its covenant defeasance option, each
Subsidiary Guarantor, if any, shall be released from all its obligations under
its Subsidiary Guarantee.
Upon satisfaction of the conditions set forth herein and upon request
of the Company, the Trustee shall acknowledge in writing the discharge of those
obligations that the Company terminates.
(c) Notwithstanding clauses (a) and (b) above, the Company's
obligations in Sections 2.03, 2.04, 2.05, 2.06, 7.07, 7.08, 8.05 and 8.06 shall
survive until the Securities have been paid in full. Thereafter, the Company's
obligations in Sections 7.07 and 8.05 shall survive.
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SECTION 8.02. Conditions to Defeasance. The Company may exercise its
legal defeasance option or its covenant defeasance option only if:
(1) the Company irrevocably deposits in trust with the Trustee money or
U.S. Government Obligations for the payment of principal of and premium, if
any, and interest on the Securities to maturity or redemption, as the case
may be;
(2) the Company delivers to the Trustee a certificate from a nationally
recognized firm of independent accountants expressing their opinion that
the payments of principal, premium, if any, and interest when due and
without reinvestment on the deposited U.S. Government Obligations plus any
deposited money without investment will provide cash at such times and in
such amounts as will be sufficient to pay the principal, premium, if any,
and interest when due on all the Securities to maturity or redemption, as
the case may be;
(3) 123 days pass after the deposit is made and during the 123-day
period no Default specified in Section 6.01(6) or (7) with respect to the
Company occurs that is continuing at the end of the period;
(4) no Default or Event of Default has occurred and is continuing on
the date of such deposit and after giving effect thereto;
(5) the deposit does not constitute a default under any other agreement
or instrument binding on the Company;
(6) the Company delivers to the Trustee an Opinion of Counsel to the
effect that the trust resulting from the deposit does not constitute, or is
qualified as, a regulated investment company under the Investment Company
Act of 1940;
(7) in the case of the legal defeasance option, the Company shall have
delivered to the Trustee an Opinion of Counsel stating that (i) the Company
has received from, or there has been published by, the Internal Revenue
Service a ruling, or (ii) since the date of this Indenture there has been a
change in the applicable U.S. federal income tax law, in either case to the
effect that, and based thereon such Opinion of Counsel shall confirm that,
the Securityholders will not recognize income, gain or loss for U.S.
federal income tax purposes as a result of such defeasance and will be
subject to U.S. federal income tax on the same amounts, in the same manner
and at the same times as would have been the case if such defeasance had
not occurred;
(8) in the case of the covenant defeasance option, the Company shall
have delivered to the Trustee an Opinion of Counsel to the effect that the
Securityholders will not recognize income, gain or loss for U.S. federal
income tax purposes as a result of such covenant defeasance and will be
subject to U.S. federal income tax on the same amounts, in the same manner
and at the same times as would have been the case if such covenant
defeasance had not occurred; and
64
(9) the Company delivers to the Trustee an Officers' Certificate and an
Opinion of Counsel, each stating that all conditions precedent to the
defeasance and discharge of the Securities as contemplated by this Article
VIII have been complied with.
Before or after a deposit, the Company may make arrangements
satisfactory to the Trustee for the redemption of Securities at a future date in
accordance with Article III.
SECTION 8.03. Application of Trust Money. The Trustee shall hold in
trust money or U.S. Government Obligations deposited with it pursuant to this
Article VIII. It shall apply the deposited money and the money from U.S.
Government Obligations through the Paying Agent and in accordance with this
Indenture to the payment of principal of and premium, if any, and interest on
the Securities.
SECTION 8.04. Repayment to Company. The Trustee and the Paying Agent
shall promptly turn over to the Company upon request any excess money or
securities held by them at any time.
Subject to any applicable abandoned property law, the Trustee and the
Paying Agent shall pay to the Company upon request any money held by them for
the payment of principal, premium, if any, or interest that remains unclaimed
for two years, and, thereafter, Securityholders entitled to the money must look
to the Company for payment as general creditors.
SECTION 8.05. Indemnity for Government Obligations. The Company shall
pay and shall indemnify the Trustee against any tax, fee or other charge imposed
on or assessed against deposited U.S. Government Obligations or the principal
and interest received on such U.S. Government Obligations.
SECTION 8.06. Reinstatement. If the Trustee or Paying Agent is unable
to apply any money or U.S. Government Obligations in accordance with this
Article VIII by reason of any legal proceeding or by reason of any order or
judgment of any court or governmental authority enjoining, restraining or
otherwise prohibiting such application, the Company's obligations under this
Indenture and the Securities shall be revived and reinstated as though no
deposit had occurred pursuant to this Article VIII until such time as the
Trustee or Paying Agent is permitted to apply all such money or U.S. Government
Obligations in accordance with this Article VIII; provided, however, that, if
the Company has made any payment of interest on or principal of any Securities
because of the reinstatement of its obligations, the Company shall be subrogated
to the rights of the Holders of such Securities to receive such payment from the
money or U.S. Government Obligations held by the Trustee or Paying Agent.
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ARTICLE IX
Amendments
SECTION 9.01. Without Consent of Holders. The Company, the Subsidiary
Guarantors and the Trustee may amend this Indenture or the Securities without
notice to or consent of any Securityholder:
(1) to cure any ambiguity, omission, defect or inconsistency;
(2) to comply with Article V;
(3) to provide for uncertificated Securities in addition to or in place
of certificated Securities; provided, however, that the uncertificated
Securities are issued in registered form for purposes of Section 163(f) of
the Code or in a manner such that the uncertificated Securities are
described in Section 163(f)(2)(B) of the Code;
(4) to make any change in Article XI that would limit or terminate the
benefits available to any holder of Designated Senior Debt (or
representatives therefor) under Article XI;
(5) to add Guarantees with respect to the Securities, to secure the
Securities or to release Subsidiary Guarantors from Subsidiary Guaranties
as provided by the terms of this Indenture;
(6) 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;
(7) to comply with any requirements of the Commission in connection
with qualifying, or maintaining the qualification of, this Indenture under
the TIA; or
(8) to make any change that does not adversely affect the rights of any
Securityholder.
An amendment under this Section may not make any change that adversely
affects the rights under Article X or XI of any holder of Designated Senior Debt
then outstanding unless the holders of such Designated Senior Debt (or their
authorized representatives) consent to such change.
After an amendment under this Section 9.01 becomes effective, the
Company shall mail to Securityholders a notice briefly describing such
amendment. The failure to give such notice to all Securityholders, or any defect
therein, shall not impair or affect the validity of an amendment under this
Section 9.01.
SECTION 9.02. With Consent of Holders. The Company, the Subsidiary
Guarantors and the Trustee may amend this Indenture or the Securities without
notice to any Securityholder but with the written consent of the Holders of at
least a majority in
66
aggregate principal amount of the Securities then outstanding (including
consents obtained in connection with a tender offer or exchange offer for the
Securities). However, without the consent of each Securityholder affected
thereby, an amendment may not:
(1) reduce the amount of Securities whose Holders must consent to an
amendment or waiver;
(2) reduce the rate of or extend the time for payment of interest on
any Security;
(3) reduce the principal amount of or extend the Stated Maturity of any
Security;
(4) impair the right of any Holder to receive payment of principal of
and interest on such Holder's Securities on or after the due dates therefor
or to institute suit for the enforcement of any payment on or with respect
to such Holder's Securities or any Subsidiary Guaranty;
(5) reduce the amount payable upon the redemption or repurchase of any
Security under Article III or Section 4.07 or 4.14, change the time at
which any Security may be redeemed in accordance with Article III, or, at
any time after a Change of Control or Asset Sale has occurred, change the
time at which any Change of Control Offer or Prepayment Offer must be made
or at which the Securities must be repurchased pursuant to such Change of
Control Offer or Prepayment Offer;
(6) make any Security payable in money other than that stated in the
Security;
(7) make any change in Article XI that adversely affects the rights of
any Securityholder under Article XI;
(8) make any change in any Subsidiary Guaranty that would adversely
affect the Securityholders;
(9) release any security interest that may have been granted in favor
of the Holders other than pursuant to the terms of such security interest;
(10) make any change in Section 6.04 or 6.07 or the second sentence of
this Section 9.02; or
(11) subordinate the Securities or any Subsidiary Guaranty to any other
obligation of the Company or the applicable Subsidiary Guarantor.
It shall not be necessary for the consent of the Holders under this
Section 9.02 to approve the particular form of any proposed amendment, but it
shall be sufficient if such consent approves the substance thereof.
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An amendment under this Section 9.02 may not make any change that
adversely affects the rights under Article X or XI of any holder of Designated
Senior Debt then outstanding unless the holders of such Designated Senior Debt
(or their authorized representative) consent to such change.
After an amendment under this Section 9.02 becomes effective, the
Company shall mail to Securityholders a notice briefly describing such
amendment. The failure to give such notice to all Securityholders, or any defect
therein, shall not impair or affect the validity of an amendment under this
Section 9.02.
SECTION 9.03. Compliance with Trust Indenture Act. Every amendment to
this Indenture or the Securities shall comply with the TIA as then in effect.
SECTION 9.04. Revocation and Effect of Consents and Waivers. A consent
to an amendment or a waiver by a Holder of a Security shall bind the Holder and
every subsequent Holder of that Security or portion of the Security that
evidences the same debt as the consenting Holder's Security, even if notation of
the consent or waiver is not made on the Security. However, any such Holder or
subsequent Holder may revoke the consent or waiver as to such Holder's Security
or portion of the Security if the Trustee receives the notice of revocation
before the date the amendment or waiver becomes effective. After an amendment or
waiver becomes effective, it shall bind every Securityholder. An amendment or
waiver becomes effective upon the execution of such amendment or waiver by the
Trustee.
The Company may, but shall not be obligated to, fix a record date for
the purpose of determining the Securityholders entitled to give their consent or
take any other action described above or required or permitted to be taken
pursuant to this Indenture. If a record date is fixed, then notwithstanding the
immediately preceding paragraph, those Persons who were Securityholders at such
record date (or their duly designated proxies), and only those Persons, shall be
entitled to give such consent or to revoke any consent previously given or to
take any such action, whether or not such Persons continue to be Holders after
such record date. No such consent shall be valid or effective for more than 120
days after such record date.
SECTION 9.05. Notation on or Exchange of Securities. If an amendment
changes the terms of a Security, the Trustee may require the Holder of the
Security to deliver such Security to the Trustee. The Trustee may place an
appropriate notation on the Security regarding the changed terms and return such
Security to the Holder. Alternatively, if the Company or the Trustee so
determines, the Company in exchange for the Security shall issue and the Trustee
shall authenticate a new Security that reflects the changed terms. Failure to
make the appropriate notation or to issue a new Security shall not affect the
validity of such amendment.
SECTION 9.06. Trustee To Sign Amendments. The Trustee shall sign any
amendment authorized pursuant to this Article IX if the amendment does not
adversely affect the rights, duties, liabilities or immunities of the Trustee.
If it does, the Trustee may but need not sign it. In signing such amendment the
Trustee shall be entitled to receive indemnity reasonably satisfactory to it and
to receive, and (subject to Section 7.01) shall be fully protected in relying
upon, an Officers' Certificate and an Opinion of Counsel stating that such
amendment is authorized or permitted by this Indenture.
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SECTION 9.07. Payment for Consent. Neither the Company nor any
Affiliate of the Company shall, directly or indirectly, pay or cause to be paid
any consideration, whether by way of interest, fee or otherwise, to any Holder
for or as an inducement to any consent, waiver or amendment of any of the terms
or provisions of this Indenture or the Securities unless such consideration is
offered to be paid to all Holders that so consent, waive or agree to amend in
the time frame set forth in solicitation documents relating to such consent,
waiver or agreement.
ARTICLE X
Subsidiary Guarantees
SECTION 10.01. Subsidiary Guarantees. Subject to Article XI, each
Subsidiary Guarantor hereby unconditionally guarantees, jointly and severally,
to each Holder and to the Trustee and its successors and assigns (a) the full
and punctual payment of the principal of, and premium, if any, and interest on
the Securities when due, whether at maturity, by acceleration, by redemption or
otherwise, and all other monetary obligations of the Company under this
Indenture and the Securities, and (b) the full and punctual performance within
applicable grace periods of all other obligations of the Company under this
Indenture and the Securities (all the foregoing being hereinafter collectively
called the "Obligations"). Each Subsidiary Guarantor further agrees that the
Obligations may be extended or renewed, in whole or in part, without notice or
further assent from such Subsidiary Guarantor, and that such Subsidiary
Guarantor will remain bound under this Article X notwithstanding any extension
or renewal of any Obligation.
Each Subsidiary Guarantor waives presentation to, demand of, payment
from and protest to the Company of any of the Obligations and also waives notice
of protest for nonpayment. Subject to Article XI, each Subsidiary Guarantor
waives notice of any default under the Securities or the Obligations. The
obligations of each Subsidiary Guarantor hereunder shall not be affected by (a)
the failure of any Holder or the Trustee to assert any claim or demand or to
enforce any right or remedy against the Company or any other Person under this
Indenture, the Securities or any other agreement or otherwise; (b) any extension
or renewal of any thereof; (c) any rescission, waiver, amendment or modification
of any of the terms or provisions of this Indenture, the Securities or any other
agreement; (d) the release of any security held by any Holder or the Trustee for
the Obligations or any of them; (e) the failure of any Holder or the Trustee to
exercise any right or remedy against any other guarantor of the Obligations; or
(f) any change in the ownership of such Subsidiary Guarantor.
Each Subsidiary Guarantor further agrees that its Subsidiary Guaranty
herein constitutes a guarantee of payment, performance and compliance when due
(and not a guarantee of collection) and waives any right to require that any
resort be had by any Holder or the Trustee to any security held for payment of
the Obligations.
Each Subsidiary Guaranty is, to the extent and in the manner set forth
in Article XI, subordinated and subject in right of payment to the prior payment
in full of all Designated Senior Debt of the Subsidiary Guarantor giving such
Subsidiary Guaranty and is made subject to such provisions of this Indenture.
69
Except as expressly set forth in Sections 4.06, 5.02 and 8.01(b), the
obligations of each Subsidiary Guarantor hereunder shall not be subject to any
reduction, limitation, impairment or termination for any reason, including any
claim of waiver, release, surrender, alteration or compromise, and shall not be
subject to any defense of setoff, counterclaim, recoupment or termination
whatsoever or by reason of the invalidity, illegality or unenforceability of the
Guaranteed Obligations or otherwise. Without limiting the generality of the
foregoing, the obligations of each Subsidiary Guarantor herein shall not be
discharged or impaired or otherwise affected by the failure of any Holder or the
Trustee to assert any claim or demand or to enforce any remedy under this
Indenture, the Securities or any other agreement, by any waiver or modification
of any thereof, by any default, failure or delay in the performance of the
obligations, or by any other act or thing or omission or delay to do any other
act or thing which may or might in any manner or to any extent vary the risk of
such Subsidiary Guarantor or would otherwise operate as a discharge of such
Subsidiary Guarantor as a matter of law or equity, except for any gross
negligence, wilful misconduct or bad faith by such Holder or the Trustee.
Each Subsidiary Guarantor further agrees that its Subsidiary Guaranty
herein shall continue to be effective or be reinstated, as the case may be, if
at any time payment, or any part thereof, of principal of or premium, if any, or
interest on any Obligation is rescinded or must otherwise be restored by any
Holder or the Trustee upon the bankruptcy or reorganization of the Company or
otherwise.
In furtherance of the foregoing and not in limitation of any other
right that any Holder or the Trustee has at law or in equity against any
Subsidiary Guarantor by virtue hereof, and subject in all instances to Article
XI hereof, upon the failure of the Company to pay the principal of or premium,
if any, or interest on any Obligation when and as the same shall become due,
whether at maturity, by acceleration, by redemption or otherwise, or to perform
or comply with any other Obligation, each Subsidiary Guarantor hereby promises
to and will, upon receipt of written demand by the Trustee, forthwith pay, or
cause to be paid, in cash, to the Holders or the Trustee an amount equal to the
sum of (i) the unpaid amount of such Obligations, (ii) accrued and unpaid
premium, if any, and interest on such Obligations (but only to the extent not
prohibited by law), and (iii) all other monetary Obligations of the Company to
the Holders and the Trustee.
Each Subsidiary Guarantor agrees that it shall not be entitled to any
right of subrogation in respect of any Obligations guaranteed hereby until
payment in full in cash of all Obligations and all obligations to which the
Obligations are subordinated as provided in Article XI. Each Subsidiary
Guarantor further agrees that, as between it, on the one hand, and the Holders
and the Trustee, on the other hand, (x) the maturity of the Obligations
guaranteed hereby may be accelerated as provided in Article VI for the purposes
of such Subsidiary Guarantor's Subsidiary Guaranty herein, 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 Article VI, such Obligations
(whether or not due and payable) shall, subject to Article XI hereof, forthwith
become due and payable by such Subsidiary Guarantor for the purposes of this
Section 10.01.
70
Each Subsidiary Guarantor also agrees to pay any and all costs and
expenses (including reasonable attorneys' fees) incurred by the Trustee or any
Holder in enforcing any rights under this Section 10.01.
SECTION 10.02. Contribution. Each of the Company and any Subsidiary
Guarantor (a "Contributing Party") agrees (subject to Article XI) that, in the
event a payment shall be made by any other Subsidiary Guarantor under any
Subsidiary Guaranty (the "Claiming Guarantor"), the Contributing Party shall
indemnify the Claiming Guarantor in an amount equal to the amount of such
payment multiplied by a fraction, the numerator of which shall be the net worth
of the Contributing Party on the date hereof and the denominator of which shall
be the aggregate net worth of the Company and all the Subsidiary Guarantors on
the date hereof (or, in the case of any Subsidiary Guarantor becoming a party
hereto pursuant to Section 9.01, the date of the supplemental indenture executed
and delivered by such Subsidiary Guarantor).
SECTION 10.03. Successors and Assigns. This Article X shall be binding
upon each Subsidiary Guarantor and its successors and assigns and shall inure to
the benefit of the successors and assigns of the Trustee and the Holders and, in
the event of any transfer or assignment of rights by any Holder or the Trustee,
the rights and privileges conferred upon that party in this Indenture and in the
Securities shall automatically extend to and be vested in such transferee or
assignee, all subject to the terms and conditions of this Indenture.
SECTION 10.04. No Waiver. Neither a failure nor a delay on the part of
either the Trustee or the Holders in exercising any right, power or privilege
under this Article X shall operate as a waiver thereof, nor shall a single or
partial exercise thereof preclude any other or further exercise of any right,
power or privilege. The rights, remedies and benefits of the Trustee and the
Holders herein expressly specified are cumulative and not exclusive of any other
rights, remedies or benefits that either may have under this Article X at law,
in equity, by statute or otherwise.
SECTION 10.05. Modification. No modification, amendment or waiver of
any provision of this Article X, nor the consent to any departure by any
Subsidiary Guarantor therefrom, shall in any event be effective unless the same
shall be in writing and signed by the Trustee, and then such waiver or consent
shall be effective only in the specific instance and for the purpose for which
given. No notice to or demand on any Subsidiary Guarantor in any case shall
entitle such Subsidiary Guarantor to any other or further notice or demand in
the same, similar or other circumstances.
SECTION 10.06. Execution of Supplemental Indenture for Future
Subsidiary Guarantors. Each Subsidiary that is required to become a Subsidiary
Guarantor pursuant to Section 4.15 shall promptly execute and deliver to the
Trustee a supplemental indenture in the form of Appendix B hereto pursuant to
which such Subsidiary shall become a Subsidiary Guarantor under this Article X
and shall guarantee the Obligations subject in all respects to Article XI
hereof. Concurrently with the execution and delivery of such supplemental
indenture, the Company shall deliver to the Trustee an Opinion of Counsel to the
effect that such supplemental indenture has been duly authorized, executed and
delivered by such Subsidiary and that, subject to the application of bankruptcy,
insolvency, moratorium, fraudulent conveyance or transfer and other similar laws
relating to creditors' rights generally and to the principles of equity,
71
whether considered in a proceeding at law or in equity, the Subsidiary Guaranty
of such Subsidiary Guarantor is a legal, valid and binding obligation of such
Subsidiary Guarantor, enforceable against such Subsidiary Guarantor in
accordance with its terms.
ARTICLE XI
Subordination of Subsidiary Guarantees
SECTION 11.01. Agreement To Subordinate. Each Subsidiary Guarantor
agrees, and each Securityholder by accepting a Security agrees, that the
Obligations of such Subsidiary Guarantor are subordinated in right of payment,
to the extent and in the manner provided in this Article XI, to the payment when
due of all Designated Senior Debt of such Subsidiary Guarantor and that the
subordination is for the benefit of and enforceable by the holders of such
Designated Senior Debt. Subject to the foregoing, the Obligations of each
Subsidiary Guarantor shall in all respects rank pari passu with all existing and
future Senior Debt of such Subsidiary Guarantor and senior to all existing and
future subordinated Debt of such Subsidiary Guarantor, and only Designated
Senior Debt shall rank senior to the Obligations of such Subsidiary Guarantor in
accordance with the provisions set forth herein.
SECTION 11.02. Liquidation, Dissolution, Bankruptcy. Upon any payment
or distribution of the assets of any Subsidiary Guarantor to creditors upon a
total or partial liquidation or a total or partial dissolution of such
Subsidiary Guarantor or in a bankruptcy, reorganization, insolvency,
receivership or similar proceeding relating to such Subsidiary Guarantor or its
property:
(1) holders of Designated Senior Debt of such Subsidiary Guarantor
shall be entitled to receive payment in full in cash of such Designated
Senior Debt before Securityholders shall be entitled to receive any payment
pursuant to any Obligations of such Subsidiary Guarantor; and
(2) until the Designated Senior Debt of any Subsidiary Guarantor is
paid in full in cash, any distribution made by or on behalf of such
Subsidiary Guarantor to which Securityholders would be entitled but for
this Article XI shall be made to holders of the Designated Senior Debt as
their interests may appear, except that all Securityholders may receive and
retain shares of stock and any debt securities of such Subsidiary Guarantor
that are subordinated to Designated Senior Debt of such Subsidiary
Guarantor to at least the same extent as the Obligations of such Subsidiary
Guarantor are subordinated to Designated Senior Debt of such Subsidiary
Guarantor.
SECTION 11.03. Default on Designated Senior Debt of Subsidiary
Guarantor. No Subsidiary Guarantor may make any payment pursuant to any of its
Obligations or repurchase, redeem or otherwise retire or defease any Securities
or other Obligations (collectively, "pay its Subsidiary Guaranty") if (i) any
principal, premium or interest in respect of the Designated Senior Debt of such
Subsidiary Guarantor is not paid when due (including at maturity), or (ii) any
other default on Designated Senior Debt of such Subsidiary Guarantor occurs and
the maturity of such Designated Senior Debt is
72
accelerated in accordance with its terms unless, in either case, (x) the default
has been cured or waived and any such acceleration has been rescinded, or (y)
such Designated Senior Debt has been paid in full in cash; provided, however,
that any Subsidiary Guarantor may pay its Subsidiary Guaranty without regard to
the foregoing if such Subsidiary Guarantor and the Trustee receive written
notice approving such payment from the holders of such Designated Senior Debt
(or the authorized representative therefor) of such Subsidiary Guarantor. In
addition, during the continuance of any default (other than a default described
in clause (i) or (ii) of the preceding sentence) with respect to any Designated
Senior Debt pursuant to which the maturity thereof may be accelerated
immediately without further notice (except any notice required to effect the
acceleration) or the expiration of any applicable grace period, no Subsidiary
Guarantor may pay its Subsidiary Guaranty for a period (a "Payment Blockage
Period") commencing upon the receipt by such Subsidiary Guarantor and the
Trustee of written notice of such default from a representative under such
Designated Senior Debt specifying an election to effect a Payment Blockage
Period (a "Payment Blockage Notice") and ending 179 days thereafter (unless such
Payment Blockage Period is earlier terminated (a) by written notice to the
Trustee and such Subsidiary Guarantor from such authorized representative or the
holders of such Designated Senior Debt, (b) because such default is no longer
continuing, or (c) because all such Designated Senior Debt has been repaid in
full in cash). Unless the holders of such Designated Senior Debt shall have
accelerated the maturity of such Designated Senior Debt and not rescinded such
acceleration, any Subsidiary Guarantor may (unless otherwise prohibited as
described in Section 11.02 or the first or second sentences of this paragraph)
resume payments pursuant to its Subsidiary Guaranty after such Payment Blockage
Period. Not more than one Payment Blockage Notice may be given in any
consecutive 360-day period, irrespective of the number of defaults during such
period.
SECTION 11.04. Demand for Payment. If a demand for payment is made on a
Subsidiary Guarantor pursuant to Article X, such Subsidiary Guarantor may not
pay its Subsidiary Guaranty, and neither the Trustee nor any Securityholder may
retain any such payment, until ten Business Days after the holders of Designated
Senior Debt (or their authorized representative) receive notice of such demand
and, thereafter, may pay its Subsidiary Guaranty only if this Indenture
otherwise permits payment at that time.
SECTION 11.05. When Distribution Must Be Paid Over. If a distribution
is made to the Trustee or any Securityholders that because of this Article XI
should not have been made to them, the Trustee or such Securityholders who
receive the distribution shall hold it in trust for holders of the Designated
Senior Debt and promptly pay it over to them or their authorized representative
as their interests may appear.
SECTION 11.06. Subrogation. After all Designated Senior Debt of a
Subsidiary Guarantor is paid in full in cash and until the Securities are paid
in full in cash, Securityholders shall be subrogated to the rights of holders of
Designated Senior Debt to receive distributions applicable to Designated Senior
Debt. A distribution made under this Article XI to holders of such Designated
Senior Debt that otherwise would have been made to Securityholders is not, as
between the relevant Subsidiary Guarantor and Securityholders, a payment by such
Subsidiary Guarantor on such Designated Senior Debt.
73
SECTION 11.07. Relative Rights. This Article XI defines the relative
rights of Securityholders and holders of Designated Senior Debt of a Subsidiary
Guarantor. Nothing in this Indenture shall:
(1) impair, as between a Subsidiary Guarantor and Securityholders, the
obligation of such Subsidiary Guarantor, which is absolute and
unconditional, to pay the Obligations to the extent set forth in Article X
or the relevant Subsidiary Guaranty; or
(2) prevent the Trustee or any Securityholder from exercising its
available remedies upon a default by such Subsidiary Guarantor under the
Obligations, subject to the rights of holders of Designated Senior Debt of
such Subsidiary Guarantor to receive distributions otherwise payable to
Securityholders.
SECTION 11.08. Subordination May Not Be Impaired by Subsidiary
Guarantor. No right of any holder of Designated Senior Debt of any Subsidiary
Guarantor to enforce the subordination of the Obligation of such Subsidiary
Guarantor shall be impaired by any act or failure to act by such Subsidiary
Guarantor or the Company or by any of their failure to comply with this
Indenture.
SECTION 11.09. Rights of Trustee and Paying Agent. Notwithstanding
Section 11.03, the Trustee or Paying Agent may continue to make payments on any
Subsidiary Guaranty and shall not, absent gross negligence or bad faith, be
charged with knowledge of the existence of 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 Trust Officer receives written notice satisfactory to it that
payments may not be made under this Article XI. The Company, the relevant
Subsidiary Guarantor, the Registrar or co-registrar, the Paying Agent, an
authorized representative or a holder of Designated Senior Debt of any
Subsidiary Guarantor may give the notice; provided, however, that, if any
Designated Senior Debt of any Subsidiary Guarantor has an authorized
representative, only such authorized representative may give the notice.
The Trustee in its individual or any other capacity may hold Designated
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. The Trustee shall be entitled to all the rights set forth in this
Article XI with respect to any Designated Senior Debt of any Subsidiary
Guarantor that may at any time be held by it, to the same extent as any other
holder of Designated Senior Debt; and nothing in Article VII shall deprive the
Trustee of any of its rights as such holder. Nothing in this Article XI shall
apply to claims of, or payments to, the Trustee under or pursuant to Section
7.07.
SECTION 11.10. Distribution or Notice to Representative. Whenever a
distribution is to be made or a notice given to holders of Designated Senior
Debt of any Subsidiary Guarantor, the distribution may be made and the notice
given to the authorized representative, if any, of such Designated Senior Debt.
SECTION 11.11. Article XI Not To Prevent Events of Default Under a
Subsidiary Guaranty or Limit Right To Demand Payment. The failure to make a
payment pursuant to a Subsidiary Guaranty by reason of any provision in this
Article XI shall not
74
be construed as preventing the occurrence of a default under such Subsidiary
Guaranty. Nothing in this Article XI shall have any effect on the right of the
Securityholders or the Trustee to make a demand for payment on any Subsidiary
Guarantor pursuant to Article X or the relevant Subsidiary Guaranty.
SECTION 11.12. Trustee Entitled To Rely. Upon any payment or
distribution pursuant to this Article XI, the Trustee and the Securityholders
shall be entitled to rely, except to the extent such reliance would constitute
gross negligence or bad faith, (i) upon any order or decree of a court of
competent jurisdiction in which any proceedings of the nature referred to in
Section 11.02 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 Securityholders, or (iii) upon the authorized representative, if any, for
the holders of Designated Senior Debt of any Subsidiary Guarantor for the
purpose of ascertaining the Persons entitled to participate in such payment or
distribution, the holders of Designated Senior Debt and other Debt of such
Subsidiary Guarantor, the amount thereof or payable thereon, the amount or
amounts paid or distributed thereon and all other facts pertinent thereto or to
this Article XI. 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
Designated Senior Debt of any Subsidiary Guarantor to participate in any payment
or distribution pursuant to this Article XI, the Trustee may request such Person
to furnish evidence to the reasonable satisfaction of the Trustee as to the
amount of Designated Senior Debt of such Subsidiary Guarantor 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 XI, 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 7.01 and 7.02
shall be applicable to all actions or omissions of actions by the Trustee
pursuant to this Article XI. Notwithstanding anything to the contrary contained
in this Section 11.12, the provisions of this Section 11.12 shall not change,
modify or otherwise affect the rights of the holders of Designated Senior Debt.
SECTION 11.13. Trustee To Effectuate Subordination. Each Securityholder
by accepting a Security authorizes and directs the Trustee on his behalf to take
such action as may be necessary or appropriate to acknowledge or effectuate the
subordination between the Securityholders and the holders of Designated Senior
Debt of any Subsidiary Guarantor as provided in this Article XI and appoints the
Trustee as attorney-in-fact for any and all such purposes.
SECTION 11.14. Trustee Not Fiduciary for Holders of Designated Senior
Debt of Subsidiary Guarantor. The Trustee shall not be deemed to owe any
fiduciary duty to the holders of Designated Senior Debt of any Subsidiary
Guarantor and, absent gross negligence or bad faith, shall not be liable to any
such holders if it shall mistakenly pay over or distribute to Securityholders or
the Company or any other Person money or assets to which any holders of such
Designated Senior Debt shall be entitled by virtue of this Article XI or
otherwise.
SECTION 11.15. Reliance by Holders of Designated Senior Debt on
Subordination Provisions. Each Securityholder by accepting a Security
acknowledges and agrees that the foregoing subordination provisions are, and are
intended to be, an inducement and a consideration to each holder of any
Designated Senior Debt of any
75
Subsidiary Guarantor, whether such Designated Senior Debt was created or
acquired before or after the issuance of the Securities, to acquire and continue
to hold, or to continue to hold, such Designated Senior Debt and such holder of
Designated 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 Designated Senior Debt.
ARTICLE XII
Miscellaneous
SECTION 12.01. Trust Indenture Act Controls. If any provision of this
Indenture limits, qualifies or conflicts with another provision that is required
to be included in this Indenture by the TIA, the required provision of the TIA
shall control.
SECTION 12.02. Notices. Any notice or communication shall be in writing
and delivered in person or mailed by first-class mail or sent by facsimile (with
a hard copy delivered in person or by mail promptly thereafter) and addressed as
follows:
if to the Company:
Alamosa (Delaware), Inc.
0000 Xxxxx Xxxx 000
Xxxxxxx, Xxxxx 00000
Attention of: Xxxxxxx X. Xxxxx
if to any Subsidiary Guarantor, to such Subsidiary
Guarantor:
In care of Alamosa (Delaware), Inc.
0000 Xxxxx Xxxx 000
Xxxxxxx, Xxxxx 00000
Attention of: Xxxxxxx X. Xxxxx
if to the Trustee:
Xxxxx Fargo Bank Minnesota, N.A.
Corporate Trust Services
Sixth & Marquette
MAC X 0000-000
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention of:
Corporate Trust Services
76
The Company, any Subsidiary Guarantor or the Trustee by notice to the
other may designate additional or different addresses for subsequent notices or
communications.
Any notice or communication mailed to a Securityholder shall be mailed
to the Securityholder at the Securityholder's address as it appears on the
registration books of the Registrar and shall be sufficiently given if so mailed
within the time prescribed.
Failure to mail a notice or communication to a Securityholder or any
defect in it shall not affect its sufficiency with respect to other
Securityholders. If a notice or communication is mailed in the manner provided
above, it is duly given, whether or not the addressee receives it.
SECTION 12.03. Communication by Holders with Other Holders.
Securityholders may communicate pursuant to TIA (Section) 312(b) with other
Securityholders with respect to their rights under this Indenture or the
Securities. The Company, the Trustee, the Registrar and anyone else shall have
the protection of TIA (Section) 312(c).
SECTION 12.04. Certificate and Opinion as to Conditions Precedent. Upon
any request or application by the Company to the Trustee to take or refrain from
taking any action under this Indenture, the Company shall furnish to the
Trustee:
(1) an Officers' Certificate in form and substance reasonably
satisfactory to the Trustee stating that, in the opinion of the signers,
all conditions precedent, if any, provided for in this Indenture relating
to the proposed action have been complied with; and
(2) an Opinion of Counsel in form and substance reasonably satisfactory
to the Trustee stating that, in the opinion of such counsel, all such
conditions precedent have been complied with.
SECTION 12.05. Statements Required in Certificate or Opinion. Each
certificate or opinion with respect to compliance with a covenant or condition
provided for in this Indenture shall include:
(1) a statement that the individual making such certificate or opinion
has read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of such individual, he has made
such examination or investigation as is necessary to enable him to express
an informed opinion as to whether or not such covenant or condition has
been complied with; and
77
(4) a statement as to whether or not, in the opinion of such
individual, such covenant or condition has been complied with.
SECTION 12.06. When Securities Disregarded. In determining whether the
Holders of the required principal amount of Securities have concurred in any
direction, waiver or consent, Securities owned by the Company, any Subsidiary
Guarantor or by any Person directly or indirectly controlling or controlled by
or under direct or indirect common control with the Company or any Subsidiary
Guarantor shall be disregarded and deemed not to be outstanding, except that,
for the purpose of determining whether the Trustee shall be protected in relying
on any such direction, waiver or consent, only Securities that the Trustee knows
are so owned shall be so disregarded. Also, subject to the foregoing, only
Securities outstanding at the time shall be considered in any such
determination.
SECTION 12.07. Rules by Trustee, Paying Agent and Registrar. The
Trustee may make reasonable rules for action by or a meeting of Securityholders.
The Registrar and the Paying Agent or co-registrar may make reasonable rules for
their functions.
SECTION 12.08. Legal Holidays. A "Legal Holiday" is a Saturday, a
Sunday or a day on which banking institutions are not required to be open in the
State of New York. If a payment date is a Legal Holiday, payment shall be made
on the next succeeding day that is not a Legal Holiday, and no interest shall
accrue for the intervening period. If a regular record date is a Legal Holiday,
the record date shall not be affected.
SECTION 12.09. Governing Law. THIS INDENTURE AND THE SECURITIES SHALL
BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK.
SECTION 12.10. No Recourse Against Others. A director, officer,
employee or stockholder, as such, of the Company shall not have any liability
for any obligations of the Company under the Securities or this Indenture or for
any claim based on, in respect of or by reason of such obligations or their
creation. By accepting a Security, each Securityholder shall waive and release
all such liability. The waiver and release shall be part of the consideration
for the issue of the Securities.
SECTION 12.11. Successors. All agreements of the Company and each
Subsidiary Guarantor in this Indenture and the Securities shall bind its
successors. All agreements of the Trustee in this Indenture shall bind its
successors.
SECTION 12.12. Multiple 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. One signed copy is enough to prove this
Indenture.
SECTION 12.13. Table of Contents; Headings. The table of contents,
cross-reference sheet and headings of the Articles and Sections of this
Indenture have been inserted for convenience of reference only, are not intended
to be considered a part hereof and shall not modify or restrict any of the terms
or provisions hereof.
78
IN WITNESS WHEREOF, the parties have caused this Indenture to be duly
executed as of the date first written above.
ALAMOSA (DELAWARE), INC.,
by
-----------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Chairman of the Board and CEO
Solely for purposes of the obligations under
Articles X and XI of this Indenture:
EACH OF THE SUBSIDIARY GUARANTORS SET FORTH
ON SCHEDULE I HERETO (OTHER THAN ALAMOSA
LIMITED, LLC),
by
-----------------------------
Name: Xxxxx X. Xxxxxxxx
Title: [ ]
ALAMOSA LIMITED, LLC
by
-----------------------------
Name: Xxxxx X. Xxxxxxx
Title: Manager and Vice President
00
XXXXX XXXXX XXXX
XXXXXXXXX,X.X., as Trustee
by
-----------------------------
Name:
Title:
80
SCHEDULE I
Subsidiary Guarantors
---------------------
Alamosa PCS, Inc.
Texas Telecommunications LP
Alamosa Wisconsin Limited Partnership
Alamosa Delaware GP, LLC
Alamosa Wisconsin GP, LLC
Alamosa Finance, LLC
Alamosa Limited, LLC
Alamosa Holdings, LLC
Alamosa (Wisconsin) Properties, LLC
Alamosa Properties, LP
Alamosa Missouri, LLC
Alamosa Missouri Properties, LLC
Washington Oregon Wireless, LLC
Washington Oregon Wireless Properties, LLC
Washington Oregon Wireless Licenses, LLC
SWGP, L.L.C.
SWLP, L.L.C.
Southwest PCS, L.P.
Southwest PCS Properties, LLC
Southwest PCS Licenses, LLC
APPENDIX A
PROVISIONS RELATING TO SECURITIES
---------------------------------
1. Definitions
1.1 Definitions
For the purposes of this Appendix A the following terms will have the
meanings indicated below:
"Definitive Security" means a certificated Security.
"Depository" means The Depository Trust Company, its nominees and their
respective successors.
"Securities Custodian" means the custodian with respect to a Global
Security (as appointed by the Depository) or any successor person thereto, who
will initially be the Trustee.
1.2 Other Definitions
Term: Defined in Section:
---- -------------------
"Agent Members"..........................................................2.1(b)
"Global Security"........................................................2.1(a)
2. The Securities
2.1 Form and Dating
The Securities will be issued and exchanged by the Company pursuant to
the Exchange Offers (including payment of the CVRs pursuant to the terms of the
CVR Agreement).
(a) Global Securities. Securities shall be issued in the form of one or
more permanent global Securities in definitive, fully registered form (the
"Global Securities") without interest coupons and with the global securities
legend set forth in Exhibit 1 hereto, which shall be deposited on behalf of the
initial holders of the Securities represented thereby with the Securities
Custodian, and registered in the name of the Depository or a nominee of the
Depository, duly executed by the Company and authenticated by the Trustee as
provided in this Indenture. The aggregate principal amount of the Global
Securities may from time to time be increased or decreased by adjustments made
on the records of the Trustee and the Depository or its nominee as hereinafter
provided.
1
(b) Book-Entry Provisions. This Section 2.1(b) shall apply only to a
Global Security deposited with or on behalf of the Depository.
The Company shall execute and the Trustee shall, in accordance with
this Section 2.1(b) and pursuant to an order of the Company, authenticate and
deliver initially one or more Global Securities that (a) shall be registered in
the name of the Depository for such Global Security or Global Securities or the
nominee of such Depository, and (b) shall be delivered by the Trustee to such
Depository or pursuant to such Depository's instructions or held by the Trustee
as Securities Custodian.
Members of, or participants in, the Depository ("Agent Members") shall
have no rights under this Indenture with respect to any Global Security held on
their behalf by the Depository or by the Trustee as Securities Custodian or
under such Global Security, and the Depository may be treated by the Company,
the Trustee and any agent of the Company or the Trustee as the absolute owner of
such Global Security for 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 Depository or impair, as between the
Depository and its Agent Members, the operation of customary practices of such
Depository governing the exercise of the rights of a holder of a beneficial
interest in any Global Security.
(c) Definitive Securities. Except as provided in Section 2.3 or 2.4,
owners of beneficial interests in Global Securities will not be entitled to
receive physical delivery of Definitive Securities.
2.2 Authentication. The Trustee shall authenticate and make available for
delivery, upon a written order of the Company signed by two Officers, (i)
Securities for original issue on the date hereof in an aggregate principal
amount of $[ ] million, and (ii) Securities for original issue pursuant to the
terms of the CVR Agreement in an aggregate principal amount of up to $[ ]
million. Such order shall specify the amount of the Securities to be
authenticated and the date on which the Securities are to be authenticated. The
aggregate principal amount of Securities outstanding at any time may not exceed
$[__] million, except as provided in Section 2.07 of the Indenture.
2.3 Transfer and Exchange. (a) Transfer and Exchange of Definitive
Securities. When Definitive Securities are presented to the Registrar or any
co-registrar with a request:
(x) to register the transfer of such Definitive Securities; or
(y) to exchange such Definitive Securities for an equal principal
amount of Definitive Securities of other authorized denominations,
the Registrar or co-registrar shall register the transfer or make the exchange
as requested if its reasonable requirements for such transaction are met;
provided, however, that the Definitive Securities surrendered for transfer or
exchange shall be duly endorsed or accompanied by a written instrument of
transfer in form reasonably satisfactory to the
2
Company and the Registrar or any co-registrar, duly executed by the Holder
thereof or his attorney duly authorized in writing.
(b) Transfer and Exchange of Global Securities.
(i) The transfer and exchange of Global Securities or beneficial
interests therein shall be effected through the Depository, in accordance
with this Indenture (including applicable restrictions on transfer set
forth herein, if any) and the procedures of the Depository therefor. A
transferor of a beneficial interest in a Global Security shall deliver a
written order given in accordance with the Depository's procedures
containing information regarding the participant account of the Depository
to be credited with a beneficial interest in such Global Security or
another Global Security and such account shall be credited in accordance
with such order with a beneficial interest in the applicable Global
Security and the account of the Person making the transfer shall be debited
by an amount equal to the beneficial interest in the Global Security being
transferred.
(ii) If the proposed transfer is a transfer of a beneficial interest in
one Global Security to a beneficial interest in another Global Security,
the Registrar or co-registrar shall reflect on its books and records the
date and an increase in the principal amount of the Global Security to
which such interest is being transferred in an amount equal to the
principal amount of the interest to be so transferred, and the Registrar or
co-registrar shall reflect on its books and records the date and a
corresponding decrease in the principal amount of the Global Security from
which such interest is being transferred.
(iii) Notwithstanding any other provisions of this Appendix A (other
than the provisions set forth in Section 2.4), a Global Security may not be
transferred as a whole except by the Depository to a nominee of the
Depository or by a nominee of the Depository to the Depository or another
nominee of the Depository or by the Depository or any such nominee to a
successor Depository or a nominee of such successor Depository.
(c) Cancellation or Adjustment of Global Security. At such time as all
beneficial interests in a Global Security have either been exchanged for
Definitive Securities, transferred, redeemed, repurchased or canceled, such
Global Security shall be returned by the Depository to the Trustee for
cancellation or retained and canceled by the Trustee. At any time prior to such
cancellation, if any beneficial interest in a Global Security is exchanged for
Definitive Securities, transferred in exchange for an interest in another Global
Security, redeemed, repurchased or canceled, the principal amount of Securities
represented by such Global Security shall be reduced and an adjustment shall be
made on the books and records of the Trustee (if it is then the Securities
Custodian for such Global Security) with respect to such Global Security, by the
Trustee or the Securities Custodian, to reflect such reduction.
3
(d) Obligations with Respect to Transfers and Exchanges of Securities.
4
(i) To permit registrations of transfers and exchanges, the Company
shall execute and the Trustee shall authenticate Definitive Securities and
Global Securities at the Registrar's or any co-registrar's request.
(ii) No service charge shall be made for any registration of transfer
or exchange, but the Company may require payment of a sum sufficient to
cover any transfer tax, assessments, or similar governmental charge payable
in connection therewith (other than any such transfer taxes, assessments or
similar governmental charge payable upon exchange or transfer pursuant to
Sections 3.06, 4.07, 4.14 and 9.05 of the Indenture).
(iii) Prior to the due presentation for registration of transfer of any
Security, the Company, the Trustee, the Paying Agent or the Registrar or
any co-registrar may deem and treat the person in whose name a Security is
registered as the absolute owner of such Security for the purpose of
receiving payment of principal of and interest on such Security and for all
other purposes whatsoever, whether or not such Security is overdue, and
none of the Company, the Trustee, the Paying Agent or the Registrar or any
co-registrar shall be affected by notice to the contrary.
(iv) The Company shall not be required to make and the Registrar or co-
registrar need not register transfers or exchanges of Securities selected
for redemption (except, in the case of Securities to be redeemed in part,
the portion thereof not to be redeemed) or any Securities for a period of
15 days before a selection of Securities to be redeemed.
(v) All Securities issued upon any transfer or exchange pursuant to the
terms of this Indenture shall evidence the same debt and shall be entitled
to the same benefits under this Indenture as the Securities surrendered
upon such transfer or exchange.
(e) No Obligation of the Trustee.
(i) The Trustee shall have no responsibility or obligation to any
beneficial owner of a Global Security, a member of, or a participant in the
Depository or any other Person with respect to the accuracy of the records
of the Depository or its nominee or of any participant or member thereof,
with respect to any ownership interest in the Securities or with respect to
the delivery to any participant, member, beneficial owner or other Person
(other than the Depository) of any notice (including any notice of
redemption or repurchase) or the payment of any amount, under or with
respect to such Securities. All notices and communications to be given to
the Holders and all payments to be made to Holders under the Securities
shall be given or made only to the registered Holders (which shall be the
Depository or its nominee in the case of a Global Security). The rights of
beneficial owners in any Global Security shall be exercised only through
the Depository subject to the applicable rules and procedures of the
Depository. The Trustee may rely and shall be fully protected in relying
upon information furnished by the Depository with respect to its members,
participants and any beneficial owners.
5
(ii) The Trustee shall have no obligation or duty to monitor, determine
or inquire as to compliance with any restrictions on transfer imposed under
this Indenture or under applicable law with respect to any transfer of any
interest in any Security (including any transfers between or among
Depository participants, members or beneficial owners in any Global
Security) other than to require delivery of such certificates and other
documentation or evidence as are expressly required by, and to do so if and
when expressly required by, the terms of this Indenture, and to examine the
same to determine substantial compliance as to form with the express
requirements hereof.
2.4 Definitive Securities
(a) A Global Security deposited with the Depository or with the Trustee
as Securities Custodian pursuant to Section 2.1 shall be transferred to the
beneficial owners thereof in the form of Definitive Securities in an aggregate
principal amount equal to the principal amount of such Global Security, in
exchange for such Global Security, only if such transfer complies with Section
2.3 and (i) the Depository notifies the Company that it is unwilling or unable
to continue as a Depository for such Global Security or if at any time the
Depository ceases to be a "clearing agency" registered under the Exchange Act,
and a successor depository is not appointed by the Company within 90 days of
such notice, or (ii) an Event of Default has occurred and is continuing, or
(iii) the Company, in its sole discretion, notifies the Trustee in writing that
it elects to cause the issuance of certificated Securities under this Indenture.
(b) Any Global Security that is transferable to the beneficial owners
thereof pursuant to this Section 2.4 shall be surrendered by the Depository to
the Trustee, to be so transferred, in whole or from time to time in part,
without charge, and the Trustee shall authenticate and deliver, upon such
transfer of each portion of such Global Security, an equal aggregate principal
amount of Definitive Securities of authorized denominations. Any portion of a
Global Security transferred pursuant to this Section 2.4 shall be executed,
authenticated and delivered only in denominations of $1,000 of principal amount
and any integral multiple thereof and registered in such names as the Depository
shall direct.
(c) Subject to the provisions of Section 2.4(b), the registered Holder
of a Global Security may grant proxies and otherwise authorize any Person,
including Agent Members and Persons that may hold interests through Agent
Members, to take any action which a Holder is entitled to take under this
Indenture or the Securities.
(d) In the event of the occurrence of any of the events specified in
Section 2.4(a)(i), (ii) or (iii), the Company will promptly make available to
the Trustee a reasonable supply of Definitive Securities in fully registered
form without interest coupons.
6
EXHIBIT 1
to APPENDIX A
[FORM OF FACE OF SECURITY]
[Global Securities Legend]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), NEW YORK, NEW
YORK, TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR
PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR
SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN
WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH
SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE
LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE
INDENTURE REFERRED TO ON THE REVERSE HEREOF.
1
No. [up to]* $__________
11% Senior Note due 2010
CUSIP No. [ ]
Alamosa (Delaware), Inc., a Delaware corporation, promises to pay to
[Cede & Co.]*, or registered assigns, on July 31, 2010, the principal amount
[of Dollars]** [as set forth on the Schedule of Increases or Decreases
annexed hereto]*.
Interest Payment Dates: January 31 and July 31.
Record Dates: January 15 and July 15.
--------
* Insert for Global Securities
** Insert for Definitive Securities
2
Additional provisions of this Security are set forth on the back of
this Security.
IN WITNESS WHEREOF, the parties have caused this instrument to be duly
executed.
ALAMOSA (DELAWARE), INC.,
by:
---------------------------------
Name:
Title:
by:
---------------------------------
Name:
Title:
[CORPORATE SEAL]
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
Dated: [ ], [ ]
XXXXX FARGO BANK MINNESOTA, N.A.,
as Trustee, certifies
that this is one of
the Securities referred
to in the Indenture.
by:
----------------------------
Authorized Signatory
-----------------
*/ If the Security is to be issued in global form, add the Global Securities
Legend and the attachment captioned "TO BE ATTACHED TO GLOBAL SECURITIES -
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY".
3
[FORM OF BACK OF SECURITY]
11% Senior Note due 2010
1. Interest
Alamosa (Delaware), Inc., a Delaware corporation (such corporation, and
its successors and assigns under the Indenture hereinafter referred to, being
herein called the "Company"), promises to pay interest on the principal amount
of this Security at the rate per annum shown above. The Company will pay
interest semiannually on January 31 and July 31 of each year, commencing January
31, 2004. Interest shall be computed on the basis of a 360-day year of twelve
30-day months. The Company shall pay interest on overdue principal at the rate
borne by the Securities plus 1% per annum, and it shall pay interest on overdue
installments of interest at the rate borne by the Securities to the extent
lawful.
2. Method of Payment
The Company will pay interest on the Securities (except defaulted
interest) to the Persons who are registered holders of Securities at the close
of business on January 15 or July 15 next preceding the interest payment date
even if Securities are canceled after the record date and on or before the
interest payment date. Holders must surrender Securities to a Paying Agent to
collect principal payments. The Company will pay principal and interest in money
of the United States of America that at the time of payment is legal tender for
payment of public and private debts. Payments in respect of the Securities
represented by a Global Security (including principal, premium and interest)
will be made by wire transfer of immediately available funds to the accounts
specified by The Depository Trust Company. The Company will make all payments in
respect of a Definitive Security (including principal, premium and interest), by
mailing a check to the registered address of each Holder thereof; provided,
however, that payments on the Securities may also be made, in the case of a
Holder of at least $1,000,000 aggregate principal amount of Securities, by wire
transfer to a U.S. dollar account maintained by the payee with a bank in the
United States if such Holder elects payment by wire transfer by giving written
notice to the Trustee or the Paying Agent to such effect designating such
account no later than 30 days immediately preceding the relevant due date for
payment (or such other date as the Trustee may accept in its discretion).
3. Paying Agent and Registrar
Initially, Xxxxx Fargo Bank Minnesota, N.A., a national banking
association (the "Trustee"), will act as Paying Agent and Registrar. The Company
may appoint and change any Paying Agent, Registrar or co-registrar without
notice. The Company or any of its domestically incorporated Wholly Owned
Subsidiaries may act as Paying Agent, Registrar or co-registrar.
4. Indenture
The Company issued the Securities under an Indenture dated as of [ ]
[ ], 2003 (the "Indenture"), among the Company, the Subsidiary Guarantors and
the Trustee. The terms of the Securities include those stated in the Indenture
and those made part of the Indenture by reference to the Trust Indenture Act of
1939 (15 U.S.C. (Sections) 77aaa- 77bbbb) as in effect on the date of the
Indenture (the "TIA"). Terms defined in the Indenture and not defined herein
have the meanings ascribed thereto in the Indenture. The Securities are subject
to all such terms, and Securityholders are referred to the Indenture and the TIA
for a statement of those terms.
The Securities are senior unsecured obligations of the Company limited
to $[ ] million aggregate principal amount (subject to Section 2.07 of the
Indenture). The Indenture imposes certain limitations on the ability of the
Company and its Restricted Subsidiaries to, among other things, make certain
Investments and other Restricted Payments, pay dividends and other
distributions, incur Debt, enter into consensual restrictions upon the payment
of certain dividends and distributions by such Restricted Subsidiaries, issue or
sell shares of Capital Stock of such Restricted Subsidiaries, enter into or
permit certain transactions with Affiliates, create or incur Liens and make
Asset Sales. The Indenture also imposes limitations on the ability of the
Company and the Subsidiary Guarantors to consolidate or merge with or into any
other Person or sell, transfer, assign, lease, convey or otherwise dispose of
all or substantially all of the Property of the Company or any such Subsidiary
Guarantor.
Pursuant to the terms of the Indenture, the Subsidiary Guarantors have,
jointly and severally, guaranteed the due and punctual payment of the principal
and interest on the Securities and all other amounts payable by the Company
under the Indenture and the Securities when and as the same shall be due and
payable, whether at maturity, by acceleration or otherwise, according to the
terms of the Securities and the Indenture. The Subsidiary Guaranties are
subordinated in right of payment to each Subsidiary Guarantor's obligations with
respect to Designated Senior Debt.
5. Optional Redemption
Except as set forth below, the Securities are not redeemable prior to
July 31, 2007. On and after that date, the Company may redeem the Securities in
whole at any time or in part from time to time at the following redemption
prices (expressed in percentages of principal amount), plus accrued and unpaid
interest, if any, to the redemption date (subject to the right of Holders of
record on the relevant record date to receive interest due on the relevant
interest payment date that is on or prior to the date of redemption), if
redeemed during the 12-month period beginning on or after July 31 of the years
set forth below:
2
Redemption
Period Price
------ -----
2007..................................................................105.500%
2008..................................................................102.750%
2009..................................................................101.375%
2010 and thereafter...................................................100.000%
Notwithstanding the foregoing, on or prior to July 31, 2007 the Company
may redeem up to 35% of the original aggregate principal amount of the
Securities issued with the proceeds from one or more Public Equity Offerings, at
a redemption price equal to 111.00% of the principal amount thereof, plus
accrued and unpaid interest thereon, if any, to the redemption date (subject to
the right of Holders of record on the relevant record date to receive interest
due on the relevant interest payment date that is on or prior to the date of
redemption); provided, however, that after giving effect to any such redemption,
at least 65% of the original aggregate principal amount of the Securities
remains outstanding. Any such redemption shall be made within 90 days of such
Public Equity Offering upon not less than 30 nor more than 60 days' prior
notice.
6. Sinking Fund
The Securities are not subject to any sinking fund.
7. Notice of Redemption
Notice of redemption will be mailed by first-class mail at least 30
days but not more than 60 days before the redemption date to each Holder of
Securities to be redeemed at his or her registered address. Securities in
denominations larger than $1,000 may be redeemed in part but only in whole
multiples of $1,000. If money sufficient to pay the redemption price of and
accrued interest on all Securities (or portions thereof) to be redeemed on the
redemption date is deposited with the Paying Agent on or before the redemption
date and certain other conditions are satisfied, on and after such date interest
ceases to accrue on such Securities (or such portions thereof) called for
redemption.
8. Repurchase of Securities at the Option of Holders upon Change of Control
Upon a Change of Control, any Holder of Securities will have the right,
subject to certain conditions specified in the Indenture, to cause the Company
to repurchase all or any part of the Securities of such Holder at a purchase
price equal to 101% of the principal amount of the Securities to be repurchased
plus accrued and unpaid interest, if any, to the date of purchase (subject to
the right of Holders of record on the relevant record date to receive interest
due on the relevant interest payment date that is on or prior to the date of
purchase) as provided in, and subject to the terms of, the Indenture.
9. Denominations; Transfer; Exchange
The Securities are in registered form without coupons in denominations
of $1,000 and whole multiples of $1,000. A Holder may transfer or exchange
Securities in accordance with the Indenture. Upon any transfer or
3
exchange, the Registrar or any co-registrar and the Trustee may require a
Holder, among other things, to furnish appropriate endorsements or transfer
documents and to pay any taxes required by law or permitted by the Indenture.
The Registrar or co-registrar need not register the transfer of or exchange any
Securities selected for redemption (except, in the case of a Security to be
redeemed in part, the portion of the Security not to be redeemed) or to transfer
or exchange any Securities for a period of 15 days prior to a selection of
Securities to be redeemed or 15 days before an interest payment date.
10. Persons Deemed Owners
The registered Holder of this Security may be treated as the owner of
it for all purposes.
11. Unclaimed Money
If money for the payment of principal or interest remains unclaimed for
two years, the Trustee or Paying Agent shall pay the money back to the Company
at its written request unless an abandoned property law designates another
Person. After any such payment, Holders entitled to the money must look only to
the Company and not to the Trustee for payment.
12. Discharge and Defeasance
Subject to certain conditions, the Company at any time may terminate
some of or all its obligations under the Securities and the Indenture if the
Company deposits with the Trustee money or U.S. Government Obligations for the
payment of principal, premium, if any, and interest on the Securities to
redemption or maturity, as the case may be.
13. Amendment, Waiver
Subject to certain exceptions set forth in the Indenture, (i) the
Indenture or the Securities may be amended without prior notice to any
Securityholder but with the written consent of the Holders of at least a
majority in aggregate principal amount of the outstanding Securities, and (ii)
any default or noncompliance with any provision may be waived with the written
consent of the Holders of at least a majority in principal amount of the
outstanding Securities. Subject to certain exceptions set forth in the
Indenture, without the consent of any Holder of Securities, the Company and the
Trustee may amend the Indenture or the Securities (i) to cure any ambiguity,
omission, defect or inconsistency; (ii) to comply with Article V of the
Indenture; (iii) to provide for uncertificated Securities in addition to or in
place of certificated Securities; (iv) to make certain changes in the
subordination provisions; (v) to add Guarantees with respect to the Securities
or to release Subsidiary Guarantors from Subsidiary Guaranties as provided in
the Indenture; (vi) to secure the Securities; (vii) to add additional covenants
or to surrender rights and powers conferred on the Company; (viii) to comply
with the requirements of the U.S. Securities and Exchange Commission in order to
effect or maintain the qualification of the Indenture under the TIA; or (ix) to
make any change that does not adversely affect the rights of any Securityholder.
4
14. Defaults and Remedies
If an Event of Default occurs and is continuing, the Trustee or the
Holders of at least 25% in aggregate principal amount of the Securities then
outstanding, subject to certain limitations, may declare all the Securities to
be immediately due and payable. Certain events of bankruptcy or insolvency are
Events of Default and shall result in the Securities being immediately due and
payable upon the occurrence of such Events of Default without any further act of
the Trustee or any Holder.
Holders of Securities may not enforce the Indenture or the Securities
except as provided in the Indenture. The Trustee may refuse to enforce the
Indenture or the Securities unless it receives reasonable indemnity or security.
Subject to certain limitations, Holders of a majority in aggregate principal
amount of the Securities then outstanding may direct the Trustee in its exercise
of any trust or power under the Indenture. The Holders of a majority in
aggregate principal amount of the Securities then outstanding, by written notice
to the Company and the Trustee, may rescind any declaration of acceleration and
its consequences if the rescission would not conflict with any judgment or
decree, and if all existing Events of Default have been cured or waived except
nonpayment of principal or interest that has become due solely because of the
acceleration.
15. Trustee Dealings with the Company
Subject to certain limitations imposed by the TIA, the Trustee under
the Indenture, in its individual or any other capacity, may become the owner or
pledgee of Securities and may otherwise deal with and collect obligations owed
to it by the Company or its Affiliates and may otherwise deal with the Company
or its Affiliates with the same rights it would have if it were not Trustee.
16. No Recourse Against Others
A director, officer, employee or stockholder, as such, of the Company
or any Subsidiary Guarantor shall not have any liability for any obligations of
the Company or any Subsidiary Guarantor under the Securities or the Indenture or
for any claim based on, in respect of or by reason of such obligations or their
creation. By accepting a Security, each Securityholder waives and releases all
such liability. The waiver and release are part of the consideration for the
issue of the Securities.
17. Authentication
This Security shall not be valid until an authorized signatory of the
Trustee (or an authenticating agent) manually signs the certificate of
authentication on the other side of this Security.
18. Abbreviations
Customary abbreviations may be used in the name of a Securityholder or
an assignee, such as TEN COM (=tenants in common), TEN ENT (=tenants by the
entireties), JT TEN (=joint tenants with rights of survivorship and not as
tenants in
5
common), CUST (=custodian), and U/G/M/A (=Uniform Gift to Minors Act).
19. Governing Law
THIS SECURITY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF NEW YORK.
20. CUSIP Numbers
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Company has caused CUSIP numbers to be
printed on the Securities and has directed the Trustee to use CUSIP numbers in
notices of redemption as a convenience to Securityholders. No representation is
made as to the accuracy of such numbers either as printed on the Securities or
as contained in any notice of redemption, and reliance may be placed only on the
other identification numbers placed thereon.
THE COMPANY WILL FURNISH TO ANY HOLDER OF SECURITIES UPON WRITTEN
REQUEST AND WITHOUT CHARGE TO THE HOLDER A COPY OF THE INDENTURE WHICH HAS IN IT
THE TEXT OF THIS SECURITY. REQUESTS MAY BE MADE TO:
ALAMOSA (DELAWARE), INC.
0000 XXXXX XXXX 000
XXXXXXX, XXXXX 00000
TELECOPIER NO: (000) 000-0000
6
ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to
(Print or type assignee's name, address and zip code)
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint agent to transfer this
Security 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 other side of this Security. Signature
must be guaranteed by a participant in a recognized signature guaranty medallion
program or other signature guarantor acceptable to the Trustee.)
OPTION OF HOLDER TO ELECT PURCHASE
IF YOU WANT TO ELECT TO HAVE THIS SECURITY PURCHASED BY THE COMPANY
PURSUANT TO SECTION 4.07 (ASSET SALE) OR 4.14 (CHANGE OF CONTROL) OF THE
INDENTURE, CHECK THE BOX:
[ ] SECTION 4.07 [ ] SECTION 4.14
IF YOU WANT TO ELECT TO HAVE ONLY PART OF THIS SECURITY PURCHASED BY
THE COMPANY PURSUANT TO SECTION 4.07 OR 4.14 OF THE INDENTURE, STATE THE AMOUNT
THAT YOU ELECT TO HAVE PURCHASED:
$
DATE: __________________ YOUR SIGNATURE: __________________
(SIGN EXACTLY AS YOUR NAME APPEARS ON THE OTHER SIDE OF THE SECURITY)
SIGNATURE GUARANTEE:_______________________________________
(SIGNATURE MUST BE GUARANTEED BY A PARTICIPANT IN A
RECOGNIZED SIGNATURE GUARANTY MEDALLION PROGRAM OR OTHER
SIGNATURE GUARANTOR ACCEPTABLE TO THE TRUSTEE.)
[TO BE ATTACHED TO GLOBAL SECURITIES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY
The initial principal amount of this Global Security is $ . The
following increases or decreases in this Global Security have been made:
Date of Amount of decrease in Amount of increase in Principal Amount of this Signature of authorized
Exchange Principal Amount of this Principal Amount of this Global Security following signatory of Trustee or
Global Security Global Security such decrease or increase Securities Custodian
1
APPENDIX B
FORM OF SUPPLEMENTAL INDENTURE
SUPPLEMENTAL INDENTURE (this "Supplemental Indenture") dated
as of , among [GUARANTOR] (the "New Subsidiary
Guarantor"), a subsidiary of ALAMOSA (DELAWARE), INC. (or its
successor), a Delaware corporation (the "Company"), ALAMOSA
(DELAWARE), INC., on behalf of itself and the Subsidiary
Guarantors (the "Existing Subsidiary Guarantors") under the
indenture referred to below, and XXXXX FARGO BANK MINNESOTA,
N.A., a national banking association, as trustee under the
indenture referred to below (the "Trustee").
W I T N E S S E T H :
WHEREAS the Company and the Existing Subsidiary Guarantors have
heretofore executed and delivered to the Trustee an Indenture (the "Indenture")
dated as of [ ] [ ], 2003, providing for the issuance of an aggregate principal
amount at maturity of up to $[__] million of 11% Senior Notes due 2010 (the
"Securities");
WHEREAS Section 4.15 of the Indenture provides that under certain
circumstances the Company is required to cause the New Subsidiary Guarantor to
execute and deliver to the Trustee a supplemental indenture pursuant to which
the New Subsidiary Guarantor shall unconditionally guarantee all the Company's
obligations under the Securities pursuant to a Subsidiary Guaranty on the terms
and conditions set forth herein; and
WHEREAS pursuant to Section 9.01 of the Indenture, the Trustee, the
Company and the Existing Subsidiary Guarantors are authorized to execute and
deliver this Supplemental Indenture;
NOW THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt of which is hereby acknowledged, the New
Subsidiary Guarantor, the Company, the Existing Subsidiary Guarantors and the
Trustee mutually covenant and agree for the equal and ratable benefit of the
holders of the Securities as follows:
1. Agreement to Guarantee. The New Subsidiary Guarantor hereby agrees,
jointly and severally with all other Subsidiary Guarantors, to unconditionally
guarantee the Company's obligations under the Securities on the terms and
subject to the conditions set forth in Articles X and XI of the Indenture and to
be bound by all other applicable provisions of the Indenture.
2. Ratification of Indenture; Supplemental Indentures Part of
Indenture. Except as expressly amended hereby, the Indenture is in all respects
ratified
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and confirmed and all the terms, conditions and provisions thereof shall remain
in full force and effect. This Supplemental Indenture shall form a part of the
Indenture for all purposes, and every holder of Securities heretofore or
hereafter authenticated and delivered shall be bound hereby.
3. Governing Law. THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
4. Trustee Makes No Representation. The Trustee makes no representation
as to the validity or sufficiency of this Supplemental Indenture.
5. Counterparts. The parties may sign any number of copies of this
Supplemental Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement.
6. Effect of Headings. The Section headings herein are for convenience
only and shall not effect the construction thereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed as of the date first above written.
[NEW SUBSIDIARY GUARANTOR],
by
--------------------------
Name:
Title:
ALAMOSA (DELAWARE), INC.
by
--------------------------
Name:
Title:
On behalf of the Existing Subsidiary
Guarantors,
by
--------------------------
Name:
Title:
XXXXX FARGO BANK MINNESOTA, N.A., as
Trustee,
by
--------------------------
Name:
Title:
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