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AMERICAN TOWER CORPORATION
THE BANK OF NEW YORK
Trustee
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Indenture
Dated as of February 15, 2000
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$400,000,000
(subject to increase to up to $450,000,000
in the event and to the extent
an option is exercised)
5.0% Convertible Notes Due 2010
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TABLE OF CONTENTS
Page
PARTIES.............................................................................................1
RECITALS
Authorization of Indenture.................................................................1
Compliance with Legal Requirements.........................................................1
Purpose of and Consideration for Indenture.................................................1
ARTICLE ONE
DEFINITIONS
SECTION 1.1 Certain Terms Defined.........................................................1
Affiliate.........................................................................2
Agent.............................................................................2
Board of Directors................................................................2
Board Resolution..................................................................2
Business Day......................................................................2
Capital Stock.....................................................................3
Cash Equivalents..................................................................3
Change in Control.................................................................3
Change in Control Repurchase Date.................................................3
Change in Control Repurchase Price................................................3
Class A Common Stock..............................................................4
Closing Date......................................................................4
Common Stock......................................................................4
Conversion Agent..................................................................4
Conversion Price..................................................................4
Corporate Trust Office............................................................4
Date of Conversion................................................................4
Depositary........................................................................4
Disposition.......................................................................4
DTC...............................................................................5
Equity Interests..................................................................5
Event of Default..................................................................5
Excess Amount.....................................................................5
Exchange Act......................................................................5
Global Security...................................................................5
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Holder............................................................................5
Holder of Securities..............................................................5
Securityholder....................................................................5
Immediate Family Member...........................................................5
Indenture.........................................................................5
Issuer............................................................................6
Issuer Notice.....................................................................6
Issuer Order......................................................................6
Issuer Repurchase Notice..........................................................6
Issuer Repurchase Notice Date.....................................................6
Last Sale Price...................................................................6
NASDAQ............................................................................7
Officer...........................................................................7
Officers' Certificate.............................................................7
Opinion of Counsel................................................................7
Outstanding.......................................................................7
Paying Agent......................................................................8
Permitted Owner...................................................................8
Person............................................................................8
principal.........................................................................8
Principal Stockholders............................................................8
Redemption Date...................................................................8
Redemption Price..................................................................9
Registrar.........................................................................9
Registration Right Agreement......................................................9
Related Party.....................................................................9
Repurchase Date...................................................................9
Repurchase Price..................................................................9
Responsible Officer...............................................................9
Restricted Global Security........................................................9
Restricted Security..............................................................10
SEC..............................................................................10
Security ........................................................................10
Securities.......................................................................10
Securities Act...................................................................10
Subsidiary.......................................................................10
Surviving Person.................................................................10
TIA..............................................................................10
Trading Day......................................................................10
Trustee..........................................................................11
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U.S. Government Obligations......................................................11
ARTICLE TWO
SECURITIES
SECTION 2.1 Form and Dating..............................................................11
SECTION 2.2 Execution and Authentication.................................................12
SECTION 2.3 Registrar, Paying Agent and
Conversion Agent...............................................14
SECTION 2.4 Paying Agent to Hold Money in Trust..........................................15
SECTION 2.5 Holder Lists ...............................................................16
SECTION 2.6 Transfer and Exchange........................................................16
SECTION 2.7 Replacement Securities.......................................................17
SECTION 2.8 Outstanding Securities.......................................................17
SECTION 2.9 Temporary Securities.........................................................18
SECTION 2.10 Cancellation................................................................18
SECTION 2.11 Defaulted Interest..........................................................19
SECTION 2.12 CUSIP Numbers...............................................................19
SECTION 2.13 Global Securities...........................................................19
SECTION 2.14 Transfer Restrictions.......................................................22
ARTICLE THREE
COVENANTS
SECTION 3.1 Payment of Principal and Interest............................................23
SECTION 3.2 Written Statement to Trustee.................................................23
SECTION 3.3 Corporate Existence..........................................................23
SECTION 3.4 Reports by the Issuer........................................................23
SECTION 3.5 Waiver of Usury Defense......................................................25
SECTION 3.6 Payment of Excess Cash Dividends.............................................25
SECTION 3.7 Registration Rights..........................................................26
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ARTICLE FOUR
REMEDIES OF THE TRUSTEE AND
SECURITYHOLDERS ON EVENT OF DEFAULT
SECTION 4.1 Event of Default Defined;
Acceleration of Maturity; Waiver
of Default.....................................................26
SECTION 4.2 Collection of Indebtedness by
Trustee; Trustee May Prove Debt................................29
SECTION 4.3 Application of Proceeds......................................................32
SECTION 4.4 Suits for Enforcement........................................................34
SECTION 4.5 Restoration of Rights or Abandonment
of Proceedings.................................................34
SECTION 4.6 Limitations on Suits by
Securityholders................................................34
SECTION 4.7 Unconditional Right of
Securityholders to Receive
Principal, Premium and Interest, to
Convert and to Institute Certain
Suits..........................................................35
SECTION 4.8 Powers and Remedies Cumulative; Delay
or Omission Not Waiver of Default..............................36
SECTION 4.9 Control by Securityholders...................................................36
SECTION 4.10 Waiver of Past Defaults.....................................................37
SECTION 4.11 Trustee to Give Notice of Default,
But May Withhold in Certain
Circumstances..................................................37
SECTION 4.12 Right of Court to Require Filing of
Undertaking to Pay Costs.......................................38
SECTION 4.13 Waiver of Stay or Extension Laws............................................39
ARTICLE FIVE
CONCERNING THE TRUSTEE
SECTION 5.1 Duties and Responsibilities of the
Trustee; During Default; Prior to
Default........................................................39
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SECTION 5.2 Certain Rights of the Trustee................................................41
SECTION 5.3 Trustee Not Responsible for Recitals,
Disposition of Securities or
Application of Proceeds Thereof................................43
SECTION 5.4 Trustee and Agents May Hold
Securities; Collections, etc...................................43
SECTION 5.5 Compensation and Indemnification of
Trustee and Its Prior Claim....................................44
SECTION 5.6 Right of Trustee to Rely on Officers'
Certificate, etc...............................................45
SECTION 5.7 Persons Eligible for Appointment as
Trustee........................................................45
SECTION 5.8 Resignation and Removal; Appointment
of Successor Trustee...........................................46
SECTION 5.9 Acceptance of Appointment by
Successor Trustee..............................................48
SECTION 5.10 Merger, Conversion, Consolidation or
Succession to Business of Trustee..............................49
ARTICLE SIX
CONCERNING THE SECURITYHOLDERS
SECTION 6.1 Evidence of Action Taken by
Securityholders................................................50
SECTION 6.2 Proof of Execution of Instruments and
of Holding of Securities.......................................50
SECTION 6.3 Holders to Be Treated as Owners..............................................50
SECTION 6.4 Securities Owned by Issuer Deemed Not
Outstanding....................................................51
SECTION 6.5 Right of Revocation of Action Taken..........................................52
SECTION 6.6 Record Date for Consents and Waivers.........................................52
ARTICLE SEVEN
SUPPLEMENTAL INDENTURES
SECTION 7.1 Supplemental Indentures Without
Consent of Securityholders.....................................53
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SECTION 7.2 Supplemental Indentures with Consent
of Securityholders.............................................55
SECTION 7.3 Effect of Supplemental Indenture.............................................57
SECTION 7.4 Documents to Be Given to Trustee.............................................57
SECTION 7.5 Notation on Securities in Respect of
Supplemental Indentures........................................57
ARTICLE EIGHT
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 8.1 Covenant Not to Merge, Consolidate,
Sell or Convey Property Except
Under Certain Conditions.......................................57
SECTION 8.2 Successor Corporation or Entity
Substituted....................................................58
SECTION 8.3 Opinion of Counsel and Officers'
Certificate to Trustee.........................................59
ARTICLE NINE
SATISFACTION AND DISCHARGE
OF INDENTURE; UNCLAIMED MONEYS
SECTION 9.1 Satisfaction and Discharge of
Indenture......................................................60
SECTION 9.2 Application by Trustee of Funds
Deposited for Payment of
Securities ....................................................61
SECTION 9.3 Repayment of Moneys Held by Paying
Agent..........................................................62
SECTION 9.4 Return of Moneys Held by Trustee and
Paying Agent Unclaimed for Two
Years..........................................................62
SECTION 9.5 Indemnity for U.S. Government
Obligations....................................................63
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ARTICLE TEN
MISCELLANEOUS PROVISIONS
SECTION 10.1 Partners, Incorporators,
Stockholders, Officers and
Directors of Issue Exempt from
Individual Liability...........................................63
SECTION 10.2 Provisions of Indenture for the Sole
Benefit of Parties and
Securityholders................................................63
SECTION 10.3 Successors and Assigns of Issuer
Bound by Indenture.............................................63
SECTION 10.4 Notices and Demands on Issuer,
Trustee and Securityholders....................................64
SECTION 10.5 Officers' Certificates and Opinions
of Counsel; Statements to Be
Contained Therein..............................................65
SECTION 10.6 Payments Due on Saturdays, Sundays
and Legal Holidays.............................................66
SECTION 10.7 Conflict with TIA...........................................................67
SECTION 10.8 Communications by Holders with Other
Holders........................................................67
SECTION 10.9 Issuer to Furnish Trustee Names and
Addresses of Holders...........................................67
SECTION 10.10 New York Law to Govern.....................................................67
SECTION 10.11 Counterparts...............................................................68
SECTION 10.12 Effect of Headings.........................................................68
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 11.1 Right of Optional Redemption;
Prices ........................................................68
SECTION 11.2 Notice of Redemption; Partial
Redemptions....................................................68
SECTION 11.3 Payment of Securities Called for
Redemption.....................................................70
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SECTION 11.4 Exclusion of Certain Securities from
Eligibility for Selection for
Redemption.....................................................71
SECTION 11.5 Conversion Arrangement on Call for
Redemption.....................................................72
ARTICLE TWELVE
CONVERSION OF SECURITIES
SECTION 12.1 Conversion Privilege........................................................73
SECTION 12.2 Exercise of Conversion Privilege............................................74
SECTION 12.3 Fractional Shares...........................................................76
SECTION 12.4 Adjustment of Conversion Price..............................................76
SECTION 12.5 Continuation of Conversion Privilege
in Case of Reclassification,
Reorganization, Change, Merger,
Consolidation or Sale of Assets................................81
SECTION 12.6 Notice of Certain Events....................................................82
SECTION 12.7 Taxes on Conversion.........................................................83
SECTION 12.8 Issuer to Provide Class A Common
Stock..........................................................84
SECTION 12.9 Disclaimer of Responsibility for
Certain Matters................................................85
SECTION 12.10 Return of Funds Deposited for
Redemption of Converted Securities.............................86
ARTICLE THIRTEEN
RIGHT TO REQUIRE REDEMPTION UPON CHANGE IN CONTROL
SECTION 13.1 Right to Require Redemption.................................................86
SECTION 13.2 Notices; Method of Exercising
Redemption Right, etc..........................................87
SECTION 13.3 Definition of Change in Control.............................................89
SECTION 13.4 Limitation on Right to Require
Redemption.....................................................90
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ARTICLE FOURTEEN
REPURCHASE OF SECURITIES AT OPTION OF THE HOLDER
SECTION 14.1 General ...............................................................91
SECTION 14.2 Issuer's Right to Elect Manner of
Payment of Repurchase Price....................................93
SECTION 14.3 Repurchase with Cash........................................................94
SECTION 14.4 Payment by Issuance of Class A
Common Stock...................................................94
SECTION 14.5 Notice of Election..........................................................97
SECTION 14.6 Covenants of the Issuer.....................................................99
SECTION 14.7 Procedure upon Repurchase...................................................99
SECTION 14.8 Taxes ..............................................................100
SECTION 14.9 Effect of Repurchase Notice................................................100
SECTION 14.10 Deposit of Repurchase Price...............................................102
SECTION 14.11 Securities Repurchased in Part............................................102
SECTION 14.12 Issuer to Comply with Securities
Laws upon Purchase of Securities..............................103
SECTION 14.13 Repayment to the Issuer...................................................103
SIGNATURES........................................................................................104
EXHIBIT A -- FORM OF SECURITY
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THIS INDENTURE, dated as of February 15, 2000 between American
Tower Corporation, a Delaware corporation (the "Issuer"), and The Bank of New
York, a New York banking
corporation (the "Trustee"),
W I T N E S S E T H :
WHEREAS, the Issuer has duly authorized the issue of its 5.0%
Convertible Notes Due 2010 (the "Securities") of substantially the tenor and
amount hereinafter set forth;
WHEREAS, the Issuer has duly authorized the execution and
delivery of this Indenture to provide, among other things, for the
authentication, delivery and administration of the Securities; and
WHEREAS, all things necessary to make this Indenture a valid
indenture and agreement according to its terms have been done;
NOW, THEREFORE:
In consideration of the premises and the purchases of the
Securities by the Holders thereof, the Issuer and the Trustee mutually covenant
and agree for the equal and proportionate benefit of the respective Holders from
time to time of the Securities as follows:
ARTICLE ONE
DEFINITIONS
SECTION 1.1 Certain Terms Defined. The following terms (except
as otherwise expressly provided or unless the context otherwise clearly
requires) for all purposes of this Indenture and of any indenture supplemental
hereto shall have the respective meanings specified in this Section. All other
terms used in this Indenture which are defined in the TIA, or the definitions of
which in the Securities Act are referred to in the TIA (except as herein
otherwise expressly provided or unless the context otherwise requires), shall
have the meaning assigned to such terms in the TIA and the Securities Act as in
force at the date of this Indenture. All accounting terms used herein and not
expressly defined shall have the meanings given to them in accordance with
generally accepted accounting principles, and the term "generally accepted
accounting principles" shall mean such accounting principles which are generally
accepted at the date or time of any computation. The words "herein", "hereof"
and "hereunder" and other words of similar import refer to this Indenture as a
whole and not to any particular Article, Section or other subdivision. The terms
defined in this Article include the plural as well as the singular.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified 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.
"Agent" means any Registrar, Paying Agent or Conversion Agent.
"Board of Directors" means either the Board of Directors of
the Issuer or any committee of such Board duly authorized to act on its behalf.
"Board Resolution" means a copy of one or more resolutions,
certified by the secretary or an assistant secretary of the Issuer to have been
duly adopted by the Board of Directors and to be in full force and effect on the
date of such certification, and delivered to the Trustee.
"Business Day" means a day which in the City and State of New
York is neither Saturday, Sunday, a legal holiday nor a day on which banking
institutions and trust companies are authorized by law or regulation or
executive order to close.
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"Capital Stock" means (i) in the case of a corporation,
capital stock, (ii) in the case of any association or business entity, any and
all shares, interests, participations, rights or other equivalents (however
designated) or capital stock and (iii) in the case of a partnership, partnership
interests (whether general or limited) and any other interest or participation
that confers on a Person the right to receive a share of the profits and losses
of, or distributions of assets of, such partnership.
"Cash Equivalents" means (i) United States dollars, (ii)
securities issued or directly and fully guaranteed or insured by the United
States government or any agency or instrumentality thereof having maturities of
less than one year from the date of acquisition, (iii) certificates of deposit
and eurodollar time deposits with maturities of less than one year from the date
of acquisition, bankers' acceptances with maturities of less than one year and
overnight bank deposits, in each case with any lender party to the Credit
Agreements or with any domestic commercial bank having capital and surplus in
excess of $500,000,000 and a Keefe Bank Watch Rating of "B" or better, (iv)
repurchase obligations with a term of not more than seven days for underlying
securities of the types described in clauses (ii) and (iii) entered into with
any financial institution meeting the qualifications specified in clause (iii)
above and (v) commercial paper having the highest rating obtainable from Moody's
Investors Service, Inc. or Standard & Poor's Ratings Services, a division of the
McGraw-Hill Companies, Inc., and in each case maturing within nine months after
the date of acquisition.
"Change in Control" has the meaning assigned to it in Section
13.3.
"Change in Control Repurchase Date" has the meaning assigned
to it in Section 13.1.
"Change in Control Repurchase Price" has the meaning assigned
to it in Section 13.1.
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"Class A Common Stock" means the Class A Common Stock, par
value $0.01 per share, of the Issuer as the same exists at the Closing Date or
as such stock may be reconstituted from time to time.
"Closing Date" means the date (or, if more than one, the
earliest date) of original issuance of the Securities.
"Common Stock" means the Class A Common Stock, the Class B
Common Stock, par value $0.01 per share and the Class C Common Stock, par value
$0.01 per share, of the Issuer as the same exists at the Closing Date or as such
stock may be reconstituted from time to time.
"Conversion Agent" has the meaning assigned to it in Section
2.3.
"Conversion Price" means the principal amount of the
Securities convertible into one share of Class A Common Stock, subject to
adjustment in accordance with Section 12.4.
"Corporate Trust Office" means the office of the Trustee at
which the corporate trust business of the Trustee shall, at any particular time,
be principally administered, which office is, at the date as of which this
Indenture is dated, located at 101 Barclay Street, 21W, New York, NY 10286.
"Date of Conversion" has the meaning assigned to it in Section
12.2.
"Depositary" means with respect to Securities, a clearing
agency that is registered as such under the Exchange Act and is designated by
the Issuer to act as Depositary for such Securities (or any successor securities
clearing agency so registered.)
"Disposition" has the meaning assigned to it in Section 8.1.
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"DTC" means The Depository Trust Company, a New York
corporation.
"Equity Interests" means Capital Stock and all warrants,
options or other rights to acquire Capital Stock (including any securities that
is convertible into, or exchangeable for, Capital Stock).
"Event of Default" means any event or condition specified as
such in Section 4.1.
"Excess Amount" has the meaning assigned to it in Section 3.6.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Global Security" means a Security that is registered in the
security register kept by the Registrar in the name of a Depositary or a nominee
thereof.
"Holder", "Holder of Securities", "Securityholder" or other
similar terms mean in the case of any Security, the Person in whose name such
Security is registered in the security register kept by the Registrar for that
purpose in accordance with the terms hereof.
"Immediate Family Member" means, with respect to any
individual, such individual's spouse (past or current), descendants (natural or
adoptive, of the whole or half blood) of the parents of such individual, such
individual's grandparents and parents (natural or adoptive), and the
grandparents, parents and descendants of parents (natural or adoptive, of the
whole or half blood) of such individual's spouse (past or current).
"Indenture" means this instrument as originally executed and
delivered or, if amended or supplemented as herein provided, as so amended or
supplemented.
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"Issuer" means American Tower Corporation, a Delaware
corporation, and, subject to Article Eight, its successors and assigns.
"Issuer Notice" has the meaning assigned to it in Section
13.2.
"Issuer Order" means a written statement, request or order of
the Issuer which is signed in its name by its Chairman of the Board of
Directors, its Chief Executive Officer, its President, a Chief Operating
Officer, a Vice President, or its Chief Financial Officer, and, without
duplication, by its Treasurer, an Assistant Treasurer, its Controller, its
Secretary or an Assistant Secretary, of the Issuer, and delivered to the
Trustee.
"Issuer Repurchase Notice" has the meaning assigned to it in
Section 14.5.
"Issuer Repurchase Notice Date" has the meaning assigned to it
in Section 14.3.
"Last Sale Price" on any day means the last sale price of the
Class A Common Stock as reported on the composite tape for New York Stock
Exchange listed stocks (or if not listed or admitted to trading on such
exchange, then on the principal national securities exchange on which the Class
A Common Stock is listed or admitted to trading, or, if not listed or admitted
to trading on any national securities exchange, on NASDAQ or a similar
organization if NASDAQ is no longer reporting information) on such day or, if no
such sale takes place on such day, the last sale price for such day shall be the
average of the closing bid and asked prices regular way on the New York Stock
Exchange (or, if not listed or admitted to trading on such exchange, then on the
principal national securities exchange on which the Class A Common Stock is
listed or admitted to trading, or, if not listed or admitted to trading on any
national securities exchange, on NASDAQ or a similar organization if NASDAQ is
no longer reporting information) on such day.
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"NASDAQ" means the National Association of Securities Dealers
Automated Quotations National Market System.
"Officer" means the Chairman of the Board of Directors, the
Chief Executive Officer, the President, a Chief Operating Officer, a Vice
President, the Chief Financial Officer, the Treasurer, an Assistant Treasurer,
the Controller, the Secretary or an Assistant Secretary, of the Issuer.
"Officers' Certificate" means a certificate signed by the
Chairman of the Board of Directors, the Chief Executive Officer, the President,
a Chief Operating Officer, a Vice President, or the Chief Financial Officer and,
without duplication, by the Treasurer, an Assistant Treasurer, Controller, the
Secretary or an Assistant Secretary, of the Issuer, and delivered to the
Trustee. Each such certificate shall include the statements provided for in
Section 10.5, if and to the extent required hereby.
"Opinion of Counsel" means a written opinion, in form and
substance reasonably satisfactory to the Trustee, of counsel, who may be counsel
to the Issuer and who shall be acceptable to the Trustee. Each such opinion
shall include the statements provided for in Section 10.5, if and to the extent
required hereby.
"Outstanding", when used with reference to Securities, shall,
subject to the provision of Section 6.4, mean, as of any particular time, all
Securities authenticated and delivered by the Trustee under this Indenture,
except
(a) Securities theretofore cancelled by the
Trustee or delivered to the Trustee for cancellation;
(b) Securities, or portions thereof, for the payment or
redemption of which moneys in the necessary amount shall have been
deposited in trust with the Trustee or with any Paying Agent (other
than the Issuer) or shall have been set aside, segregated and
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held in trust by the Issuer (if the Issuer shall act as its own Paying
Agent), provided that if such Securities are to be redeemed prior to
the maturity thereof, notice of such redemption shall have been given
as herein provided, or provision satisfactory to the Trustee shall have
been made for giving such notice; and
(c) Securities in substitution for which other Securities
shall have been authenticated and delivered, or which shall have been
paid, pursuant to the terms of Section 2.7 (unless proof satisfactory
to the Trustee is presented that any of such Securities is held by a
Person in whose hands such Security is a legal, valid and binding
obligation of the Issuer), Securities converted into Class A Common
Stock pursuant hereto and Securities not deemed Outstanding pursuant to
and for the purposes of the last sentence of Section 11.2.
"Paying Agent" has the meaning assigned to it in Section 2.3.
"Permitted Owner" has the meaning assigned to it in Section
13.3.
"Person" means any individual, corporation, partnership,
limited liability company, joint venture, association, joint stock company,
trust, unincorporated organization or government or any agency or political
subdivision thereof.
"principal" wherever used with reference to the Securities or
any Security or any portion thereof shall be deemed to include "and premium, if
any" whether or not so specified. (Reference is also made to Sections 13.2(c)
and 14.9.)
"Principal Stockholders" has the meaning assigned to it in
Section 13.3.
"Redemption Date", has the meaning assigned to it in Section
11.2.
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"Redemption Price", when used with respect to any Security to
be redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Registrar" has the meaning assigned to it in Section 2.3.
"Registration Right Agreement" means the Registration Rights
Agreement, dated as of February 15, 2000, among the Issuer and the initial
purchasers named therein.
"Related Party" with respect to any individual means (i) any
Immediate Family Member of such individual or (ii) any Person, the
beneficiaries, stockholders, partners, owners or Persons beneficially holding an
80% or more controlling interest of which consist of such individual or an
Immediate Family Member.
"Repurchase Date" has the meaning assigned to it in Section
14.1.
"Repurchase Price" has the meaning assigned to it in Section
14.1.
"Responsible Officer", when used with respect to the Trustee
means any officer within the corporate trust department of the Trustee,
including any vice president, assistant vice president, assistant secretary,
assistant treasurer, trust officer or any other officer of the Trustee
customarily performing corporate trust functions similar to those performed by
the Persons who at the time shall be such officers, respectively, or to whom any
corporate trust matter is referred because of such Person's knowledge of and
familiarity with the particular subject and who shall have direct responsibility
for the administration of this Indenture.
"Restricted Global Security" has the meaning assigned to it in
Section 2.1.
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"Restricted Security" means any Security issued in exchange
for an interest in the Restricted Global Security until such time as the
Restricted Security legend contemplated in Section 2.14 need not be provided on
the Security.
"SEC" means the Securities and Exchange Commission or any
successor agency.
"Security" or "Securities" has the meaning stated in the first
recital of this Indenture and more particularly means any securities
authenticated and delivered under this Indenture.
"Securities Act" means the Securities Act of 1933, as amended.
"Subsidiary" means, with respect to any Person, any
corporation, association or other business entity of which more than 50% of the
total voting power of Equity Interests entitled (without regard to the
occurrence of any contingency) to vote in the election of directors, managers or
trustees or other governing body thereof is at the time owned or controlled by
such Person (regardless of whether such Equity Interests are owned directly or
through one or more other Subsidiaries of such Person or a combination thereof).
"Surviving Person" means, with respect to any Person involved
in or that makes any Disposition, the Person formed by or surviving such
Disposition or the Person to which such Disposition is made.
"TIA" (except as otherwise provided in Sections 7.1 and 7.2)
means the Trust Indenture Act of 1939 as in force at the date as of which this
Indenture was originally issued.
"Trading Day" means each Monday, Tuesday, Wednesday, Thursday
and Friday, other than any day on which securities are not traded on the
applicable securities exchange or in the applicable securities market.
-10-
"Trustee" means the entity identified as "Trustee" in the
first paragraph hereof and, subject to the provisions of Article Five, shall
also include any successor trustee. "Trustee" shall also mean or include each
Person who is then a trustee hereunder if at any time there is more than one
such Person.
"U.S. Government Obligations" means direct obligations of the
United States of America, backed by its full faith and credit.
ARTICLE TWO
SECURITIES
SECTION 2.1 Form and Dating. The Securities and the Trustee's
certificate of authentication shall be substantially in the form of Exhibit A
(including the legends appearing thereon), the terms of which are incorporated
in and made a part of this Indenture. The Securities may have notations, legends
or endorsements required by law, securities exchange (including NASDAQ) rules,
agreements to which the Issuer is subject or usage, including, if required by
Section 2.13, the legend contemplated thereby. The Issuer shall approve the form
of the Securities and any notation, legend or endorsement on them. Each Security
shall be dated the date of its authentication.
Upon their original issuance, Securities shall be issued in
the form of one or more Global Securities without interest coupons and shall be
registered in the name of DTC, as Depositary, or its nominee and deposited with
the Trustee, as custodian for DTC, for credit by DTC to the respective accounts
of beneficial owners of the Securities represented thereby (or such other
accounts as they may direct). Such Global Security or Securities are
collectively herein called the "Restricted Global Security". The Restricted
Global Security and any Restricted Security shall bear a different CUSIP or
other identifying number from any Security that is not a Restricted Global
Security or Restricted Security.
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SECTION 2.2 Execution and Authentication. Two Officers shall
sign the Securities for the Issuer by manual or facsimile signature. The
Issuer's seal shall be reproduced on the Securities.
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.
A security shall not be valid until the Trustee manually signs
the certificate of authentication on the Security. The signature of the Trustee
shall be conclusive evidence that the Security has been authenticated under this
Indenture.
The Trustee shall authenticate Securities for original issue
in the aggregate principal amount of $400,000,000 upon an Issuer Order;
provided, however, that if the Issuer sells any Securities pursuant to the
option in the Purchase Agreement, dated February 9, 2000, between the Issuer and
the initial purchasers named therein, then the Trustee shall authenticate
Securities for original issue in the aggregate principal amount of up to
$450,000,000 upon an Issuer Order. The Issuer Order shall specify the amount of
Securities to be authenticated and the date on which the original issue of
Securities is to be authenticated. The aggregate principal amount of Securities
outstanding at any time may not exceed the amount set forth in the previous
sentence except as provided in Section 2.7.
The Trustee's authentication of Securities pursuant to the
next preceding paragraph shall be conditioned upon receipt of each of the
following in form and substance reasonably satisfactory to the Trustee on or
prior to the Closing Date:
A. An Officer's Certificate to the effect that:
(1) All conditions required to be satisfied
under this Indenture for the issuance of the
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Securities have been so satisfied on or prior to the Closing
Date; and
(2) No Event of Default shall have occurred and be
continuing.
B. An Opinion of Counsel to the effect that:
(1) The execution and delivery of the Indenture, the
issuance of the Securities and the fulfillment of the terms
herein and therein contemplated will not conflict with the
charter or bylaws of the Issuer, or constitute a breach of or
default under any material agreement, indenture, evidence of
indebtedness, mortgage, deed of trust or other material
agreement or instrument known to such counsel to which the
Issuer is a party or by which it is bound, or any law,
administrative regulation, rule, judgment, order or decree
known to such counsel to be applicable to the Issuer or any of
its properties;
(2) The Indenture has been duly authorized by the
Issuer, executed and delivered by the Issuer, and is a legal,
valid and binding agreement of the Issuer enforceable in
accordance with its terms, except as such enforceability may
be limited by bankruptcy, insolvency, reorganization,
receivership, moratorium and similar laws affecting the rights
and remedies of creditors and obligations of debtors generally
and by the effect of general principles of equity, whether
applied by a court of law or equity;
(3) All legally required proceedings by the Issuer in
connection with the authorization and issuances of the
Securities have been duly taken, and all orders, consents or
other authorizations or approvals of any public board or body
legally required for the validity of the Securities have been
obtained; and
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(4) The Securities, when executed and authenticated
in accordance with the terms of this Indenture and delivered
upon payment therefor, will be legal, valid and binding
obligations of the Issuer enforceable in accordance with their
terms, except as such enforceability may be limited by
bankruptcy, insolvency, reorganization, receivership,
moratorium and similar laws affecting the rights and remedies
of creditors and obligations of debtors generally and by the
effect of general principles of equity, whether applied by a
court of law or equity.
The Trustee may appoint an authenticating agent acceptable to
the Issuer to authenticate Securities. Unless limited by the term 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 an Agent to deal with the Issuer or an Affiliate of the Issuer.
The Securities shall be issuable only in registered form
without coupons and only in denominations of $1,000 and any integral multiple
thereof.
SECTION 2.3 Registrar, Paying Agent and Conversion Agent. The
Issuer shall maintain in The Borough of Manhattan in The City of New York, New
York, an office or agency where Securities may be presented for registration of
transfer or for exchange ("Registrar"), an office or agency where Securities may
presented for payment and repurchase ("Paying Agent"), an office or agency where
Securities may be presented for conversion ("Conversion Agent") and an office or
agency where notices and demands to or upon the Issuer in respect of the
Securities and this Indenture may be served. The Registrar shall keep a register
of the Securities and of their transfer and exchange. The Issuer may appoint one
or more co-Registrars, one or more additional Paying Agents and one or more
additional Conversion Agents, which may be inside or outside The Borough of
Manhattan. The term "Registrar" includes any co-
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Registrar, the term "Paying Agent" includes any additional Paying Agent and the
term "Conversion Agent" includes any additional Conversion Agent. The Issuer may
change any Registrar, Paying Agent or Conversion Agent without notice to any
Holder. If the Issuer fails to appoint or maintain another person as Registrar,
Paying Agent or Conversion Agent, the Trustee shall act as such. The Issuer or
any Affiliate of the Issuer may act as Registrar or Conversion Agent. Except for
purposes of Article Nine, the Issuer or any Affiliate of the Issuer may act as
Paying Agent.
The Issuer shall enter into an appropriate agency agreement
with any Agent not a party to this Indenture. The agreement shall implement the
provisions of this Indenture that relate to such Agent. The Issuer shall
promptly notify the Trustee of the name and address of any Agent not a party to
this Indenture. If the Issuer fails to maintain a Registrar, Paying Agent,
Conversion Agent or agent for service of notices and demands, or fails to give
the foregoing notice, the Trustee shall act as such.
The Issuer initially appoints the Trustee as Registrar, Paying
Agent, Conversion Agent and agent for service of notices and demands.
SECTION 2.4 Paying Agent to Hold Money in Trust. Not later
than 11:00 a.m., Eastern Standard Time, on each due date of the principal of or
interest on any Securities, the Issuer shall deposit with the Paying Agent a sum
of money in immediately available funds sufficient to pay such principal or
interest so becoming due. Subject to Section 9.2, 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 of or interest on the Securities, and
shall notify the Trustee in writing of any default by the Issuer in making any
such payment. If the Issuer or an Affiliate of the Issuer acts as Paying Agent,
it shall on or before each due date of the principal of or interest on any
Securities segregate the money and hold it as a separate trust fund. The Issuer
at any time may require a Paying Agent to pay all money held by it to the
Trustee, and the Trustee may at any time during the
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continuance of any default, upon written request to a Paying Agent, require such
Paying Agent to forthwith pay to the Trustee all sums so held in trust by such
Paying Agent. Upon doing so, the Paying Agent (other than the Issuer) shall have
no further liability for the money.
SECTION 2.5 Holder Lists. The Trustee shall preserve in as
current a form as is reasonably practicable the most recent list available to it
of the names and addresses of the Holders. If the Trustee is not the Registrar,
the Issuer shall promptly furnish to the Trustee on or 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 for
the names and addresses of the Holders.
SECTION 2.6 Transfer and Exchange. When a Security is
presented to the Registrar with a request to register a transfer thereof, the
Registrar shall register the transfer as requested, and, when Securities are
presented to the Registrar with a request to exchange them for an equal
principal amount of Securities of other authorized denominations, the Registrar
shall make the exchange as requested; provided that every Security presented or
surrendered for registration of transfer or exchange shall be duly endorsed or
be accompanied by a written instrument of transfer in form satisfactory to the
Issuer and the Registrar duly executed by the Holder thereof or his attorney
duly authorized in writing. To permit registration of transfers and exchanges,
the Issuer shall execute and the Trustee shall authenticate Securities at the
Issuer's request. The Issuer shall not be required (i) to issue, register the
transfer of or exchange Securities during a period beginning at the opening of
business on a Business Day 15 days before the day of any selection of Securities
for redemption under Section 11.2 and ending at the close of business on the day
of selection, or (ii) to register the transfer of or exchange any Security so
selected for redemption in whole or in part, except the unredeemed portion of
any Security being redeemed in part. Any exchange or transfer shall be without
charge, except that the Issuer may require payment of a sum sufficient to
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cover any tax or other governmental charge that may be imposed in relation
thereto, but this provision shall not apply to any exchange pursuant to Section
7.5 or 11.2. Prior to due presentment for registration of transfer of any
Security, the Trustee, any Agent and the Issuer may deem and treat the Person in
whose name any 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 Trustee, any Agent or the Issuer shall be affected by notice to
the contrary.
SECTION 2.7 Replacement Securities. If a mutilated Security is
surrendered to the Trustee, or if the Holder of a Security claims that the
Security has been lost, destroyed or wrongfully taken, and neither the Issuer
nor the Trustee has received written notice that such Security has been acquired
by a bona fide purchaser, the Issuer shall issue and the Trustee shall
authenticate a replacement Security if the requirements of Section 8-405 of the
New York Uniform Commercial Code, as in effect on the date of this Indenture,
are met, and there shall have been delivered to the Issuer and the Trustee
evidence to their satisfaction of the loss, destruction or theft of any Security
if such is the case. An indemnity bond will be required that is sufficient in
the judgment of the Issuer and the Trustee to protect the Issuer, the Trustee or
any Agent from any loss which any of them may suffer if a Security is replaced.
The Issuer may charge the Holder for its expenses (including the fees and
expenses of the Trustee) in replacing a Security. Every replacement Security is
an additional obligation of the Issuer. The provisions of this Section 2.7 are
exclusive and shall preclude all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Securities.
SECTION 2.8 Outstanding Securities. The Securities Outstanding
at any time are all of the Securities authenticated by the Trustee, except for
those canceled by it, those delivered to it for cancellation and those described
in this Section 2.8 as not Outstanding.
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If a Security is replaced pursuant to Section 2.7, it ceases
to be Outstanding until a Responsible Officer of the Trustee actually receives
proof satisfactory to it that the replaced Security is held by a bona fide
purchaser.
If the Paying Agent (other than the Issuer or an Affiliate of
the Issuer) holds on a redemption date or maturity date money sufficient to pay
the principal of and accrued interest on Securities payable on that date, then
on and after that date such Securities cease to be Outstanding and interest on
them ceases to accrue.
Subject to Section 6.4, a Security does not cease to be
Outstanding because the Issuer or an Affiliate of the Issuer holds the Security.
SECTION 2.9 Temporary Securities. Until definitive Securities
are ready for delivery, the Issuer may prepare and, upon the order of the
Issuer, the Trustee shall authenticate temporary Securities. Temporary
Securities shall be substantially in the form of definitive Securities but may
have variations that the Issuer considers appropriate for temporary Securities.
Without unreasonable delay, the Issuer shall prepare and the Trustee shall
authenticate definitive Securities in exchange for temporary Securities. Until
such exchange, temporary Securities shall be entitled to the same rights,
benefits and privileges as definitive Securities.
SECTION 2.10 Cancellation. The Issuer at any time may deliver
Securities to the Trustee for cancellation. The Registrar, Paying Agent and
Conversion Agent shall forward to the Trustee any Securities surrendered to them
for transfer, exchange, payment or conversion. The Trustee and no one else shall
cancel all Securities surrendered for transfer, exchange, payment, conversion or
cancellation. The Issuer may not issue new Securities to replace Securities it
has paid or delivered to the Trustee for cancellation or which have been
converted. All canceled Securities shall be held by the Trustee and shall be
disposed of in accordance with its customary procedures (and
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certification of their cancellation shall be delivered to the Issuer).
SECTION 2.11 Defaulted Interest. If the Issuer defaults in a
payment of interest on the Securities, it shall pay the defaulted interest in
any lawful manner plus, to the extent lawful, interest payable on the defaulted
interest, to the persons who are Holders on a subsequent special record date,
which date shall be at least five Business Days prior to the payment date, in
each case at the rate provided in the Securities and in Section 3.1. The Issuer
shall fix or cause to be fixed each such special record date and payment date.
At least 15 days before a special record date, the Issuer (or the Trustee in the
name of and at the expense of the Issuer) shall forward to the Holders a notice
prepared by the Issuer that states the special record date, the related payment
date and the amount of such interest to be paid.
SECTION 2.12 CUSIP Numbers. The Issuer 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 that 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 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.
The Company will promptly notify the Trustee of any change in the "CUSIP"
numbers.
SECTION 2.13 Global Securities.
(a) Each Global Security authenticated under this Indenture
shall be registered in the name of the Depositary designated by the Issuer for
such Global Security or a nominee thereof and delivered to such Depositary or a
nominee thereof or custodian therefor, and each such Global Security shall
constitute a single Security for all purposes of this Indenture.
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(b) Notwithstanding any other provision in this Indenture, no
Global Security may be exchanged in whole or in part for Securities registered,
and no transfer of a Global Security in whole or in part may be registered, in
the name of any Person other than the Depositary for such Global Security or a
nominee thereof unless (i) such Depositary (A) has notified the Issuer and the
Trustee in writing that it is unwilling or unable to continue as Depositary for
such Global Security or (B) has ceased to be a clearing agency registered as
such under the Exchange Act or announces an intention permanently to cease
business or does in fact do so, (ii) there shall have occurred and be continuing
an Event of Default with respect to such Global Security, or (iii) the Issuer
delivers an Officers' Certificate to the Trustee stating that the Issuer has
determined not to have all the Securities represented by the Global Security.
(c) If any Global Security is to be exchanged for other
Securities or cancelled in whole, it shall be surrendered by or on behalf of the
Depositary or its nominee to the Trustee, as Registrar, for exchange or
cancellation, as provided in this Article. If any Global Security is to be
exchanged for other Securities or cancelled in part, or if another Security is
to be exchanged in whole or in part for a beneficial interest in any Global
Security, in each case as provided in this Article, then either (i) such Global
Security shall be so surrendered for exchange or cancellation, as provided in
this Article, or (ii) the principal amount thereof shall be reduced or increased
by an amount equal to the portion thereof to be so exchanged or cancelled, or
equal to the principal amount of such other Security to be so exchanged for a
beneficial interest therein, as the case may be, by means of an appropriate
adjustment made on the records of the Trustee, as Registrar, whereupon the
Trustee shall instruct the Depositary or its authorized representative to make a
corresponding adjustment to its records in accordance with its rules and
procedures. Upon any such surrender or adjustment of a Global Security, the
Trustee shall as provided in this Article, authenticate and make available for
delivery any Securities issuable in exchange for such Global Security (or any
portion thereof)
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to or upon the order of, and registered in such names as may be directed in
writing by, the Depositary or its authorized representative. Upon the request of
the Trustee in connection with the occurrence of any of the events specified in
the preceding paragraph, the Issuer shall promptly make available to the Trustee
a reasonable supply of Securities that are not in the form of Global Securities.
The Trustee shall be entitled to rely upon any order, direction or request of
the Depositary or its authorized representative which is given or made pursuant
to this Article if such order, direction or request is given or made in
accordance with the Depositary's rules and procedures.
(d) Every Security authenticated and delivered upon
registration of transfer of, or in exchange for or in lieu of, a Global Security
or any portion thereof, whether pursuant to this Article or otherwise, shall be
authenticated and delivered in the form of, and shall be, a registered Global
Security, unless such Security is registered in the name of a Person other than
the Depositary for such Global Security or a nominee thereof, in which case such
Registered Security shall be authenticated and delivered in definitive, fully
registered form, without interest coupons.
(e) The Depositary or its nominee, as registered owner of a
Global Security, shall be the Holder of such Global Security for all purposes
under the Indenture and the Securities, and owners of beneficial interests in a
Global Security shall hold such interests pursuant to the Depositary's rules and
procedures. Accordingly, any such owner's beneficial interest in a Global
Security will be shown only on, and the transfer of such interest shall be
effected only through, records maintained by the Depositary or its nominee or
its participants and such owners of beneficial interests in a Global Security
will not be considered the owners or holders thereof. Notices given to the
Holders of the Security shall be deemed given if sent to the Depositary. The
Trustee shall have no obligation to the beneficial owners of the Securities.
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(f) Upon the transfer of beneficial interests in a Restricted
Global Security under circumstances permitting the removal of the Restricted
Securities legend contemplated in Section 2.14 if the Securities represented by
such beneficial interest were not in the form of a Global Security, such
transferred beneficial interest shall be represented by a beneficial interest in
a Global Security that is not a Restricted Global Security.
SECTION 2.14 Transfer Restrictions. (a) Securities shall be
stamped or otherwise be imprinted with the legends containing the transfer
restrictions set forth on the face of the text of the Securities attached as
Exhibit A hereto. The legends so provided on the face of the text of the
Securities that relate to Restricted Securities and Restricted Global Securities
may be removed from such Security, upon receipt by the Trustee of an Issuer
Order, (i) two years from the later of issuance of the Security or the date such
Security (or any predecessor) was last acquired from an "affiliate" of the
Issuer within the meaning of Rule 144 under the Securities Act, (ii) in
connection with a sale made pursuant to the volume (and other restrictions) of
Rule 144 under the Securities Act following one year from such time, or (iii) in
connection with any sale in a transaction registered under the Securities Act,
provided that, if the legend is removed and the Security is subsequently held by
such an affiliate of the Issuer, the legend shall be reinstated.
(b) Each Holder of a Security agrees to indemnify the Issuer and the
Trustee against any liability that may result from the transfer, exchange or
assignment of such Holder's security in violation of any provision of this
Indenture and/or applicable United States Federal or state securities law.
(c) 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 Depositary
participants or beneficial owners of
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interest 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.
ARTICLE THREE
COVENANTS
SECTION 3.1 Payment of Principal and Interest. The Issuer
covenants and agrees that it will duly and punctually pay or cause to be paid
the principal of, and interest on, each of the Securities at the place or
places, at the respective times and in the manner provided in the Securities and
this Indenture. Interest on the Securities shall be computed on the basis of a
360-day year of twelve 30-day months. Each instalment of interest on the
Securities may be paid by mailing checks for such interest payable to or upon
the written order of the Holders of Securities entitled thereto as they shall
appear on the registry books of the Issuer.
SECTION 3.2 Written Statement to Trustee. The Issuer will
deliver to the Trustee, within 120 days after the end of each fiscal year of the
Issuer ending after the date hereof, an Officers' Certificate, stating that in
the course of the performance by the signers of their duties as officers of the
Issuer they would normally have knowledge of any default or non-compliance by
the Issuer in the performance or fulfillment of any covenant, agreement or
condition contained in this Indenture, stating whether or not they have
knowledge of any such default or non-compliance (without regard to any period of
grace or requirement of notice provided hereunder), and, if so, specifying each
such default or non-compliance of which the signers have knowledge and the
nature thereof.
The Issuer shall deliver to the Trustee, as soon as possible and in any
event within five days after the Issuer
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becomes aware of the occurrence of any Event of Default or an event which, with
notice or the lapse of time or both, would constitute an Event of Default, an
Officers' Certificate setting forth the details of such Event of Default or
default and the action which the Issuer proposes to take with respect thereto.
SECTION 3.3 Corporate Existence. Subject to Article Eight, the
Issuer will do or cause to be done all things necessary to preserve and keep in
full force and effect its corporate existence, rights and franchises; provided
that the Issuer shall not be required to preserve its corporate existence or any
such right or franchise if the Issuer shall determine that the preservation
thereof is no longer desirable in the conduct of its business and that the loss
thereof is not disadvantageous in any material respect to the Holders of the
Securities.
SECTION 3.4 Reports by the Issuer. The Issuer covenants to
file with the Trustee, within 15 days after the Issuer is required to file the
same with the SEC, copies of the annual reports and of the information,
documents, and other reports (or copies of such portions of any of the foregoing
as the SEC may from time to time by rules and regulations prescribe) which the
Issuer may be required to file with the SEC pursuant to Section 13 or Section
15(d) of the Exchange Act, or if the Issuer is not required to file information,
documents, or reports pursuant to either of such sections, then to file with the
Trustee, in accordance with rules and regulations prescribed from time to time
by the SEC, such of the supplementary and periodic information, documents, and
reports which may be required pursuant to Section 13 of the Exchange Act; or, in
respect of a security listed and registered on a national securities exchange or
on NASDAQ as may be prescribed from time to time in such rules and regulations.
At any time when the Issuer is not subject to Section 13 or 15(d) of the
Exchange Act, upon request of Holders and prospective purchasers of Securities
or the Class A Common Stock issuable upon conversion thereof, the Issuer will
promptly furnish or cause to be furnished to such holders and prospective
purchasers, copies of the information required to be delivered to such holders
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and prospective purchasers of such securities pursuant to Rule 144A(d)(4) under
the Securities Act (or any successor provision thereto) in order to permit
compliance with Rule 144A in connection with resales by such holders of such
securities. The Issuer will pay the expenses of printing and distributing to
such holders and prospective purchasers all such documents.
Delivery of such reports, information and documents to the
Trustee is for informational purposes only and the Trustee's receipt of such
shall not constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Issuer's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
SECTION 3.5 Waiver of Usury Defense. The Issuer covenants (to
the extent that it may lawfully do so) that it shall not assert, plead (as a
defense or otherwise) or in any manner whatsoever claim (and shall actively
resist any attempt to compel it to assert, plead or claim) in any action, suit
or proceeding that the interest rate on the Securities violates present or
future usury or other laws relating to the interest payable on any indebtedness
and shall not otherwise avail itself (and shall actively resist any attempt to
compel it to avail itself) of the benefits or advantages of any such laws.
SECTION 3.6 Payment of Excess Cash Dividends. If the Issuer
shall declare and pay cash dividends on its Class A Common Stock in an
annualized per share amount which exceeds the greater of (i) the annualized per
share amount of the immediately preceding cash dividend on its Class A Common
Stock (as adjusted to reflect any of the events listed in Sections 12.4 or 12.5)
and (ii) 15% of the Last Sale Price of the Class A Common Stock as of the
Trading Day immediately preceding the date of declaration of such dividend (the
per share amount of any such per share excess, to the extent of such per share
excess, being herein called an "Excess Amount"), then in any such event the
Holders shall have the right to receive, and the Issuer will pay to
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each such Holder, at the time of the payment of such Class A Common Stock
dividend, an amount equal to such Excess Amount (calculated by the Issuer on the
basis of the number of shares of Class A Common Stock that would have been
issued to a Holder upon conversion of the Securities held by such Holder on the
record date for the payment of such dividend) unless the Holder converts and
receives such dividend as a holder of Class A Common Stock. The Issuer shall
give the Trustee written notice of the payment of Excess Amounts to the Holders.
SECTION 3.7 Registration Rights. The Issuer agrees that the
Holders from time to time of Registrable Securities (as defined in the
Registration Rights Agreement) are entitled to the benefits of the Registration
Rights Agreement. Whenever in this Indenture there is mentioned, in any context,
the payment of interest on, or in respect of, any Security, such mention shall
be deemed to include mention of the payment of liquidated damages on Securities
constituting Registrable Securities as contemplated in Section 3 of the
Registration Rights Agreement to the extent that, in such context, such
liquidated damages are, were or would be payable in respect thereof pursuant to
the provisions of the Registration Rights Agreement.
ARTICLE FOUR
REMEDIES OF THE TRUSTEE AND
SECURITYHOLDERS ON EVENT OF DEFAULT
SECTION 4.1 Event of Default Defined; Acceleration of
Maturity; Waiver of Default. "Event of Default" with respect to Securities where
used herein, means each one of the following events which shall have occurred
and be continuing (whatever the reason for such Event of Default and whether it
shall be voluntary or involuntary or be effected by operation of law or pursuant
to any judgment, decree or order of any court or any order, rule or regulation
of any administrative or governmental body):
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(a) default in the payment of any instalment of interest upon
any of the Securities as and when the same shall become due and
payable, and continuance of such default for a period of 30 days; or
(b) default in the payment of all or any part of the principal
of or premium, if any, upon any of the Securities as and when the same
shall become due and payable either at maturity, upon any redemption or
acceleration, by declaration or otherwise; or
(c) failure on the part of the Issuer to observe or perform
any other of the covenants or agreements on the part of the Issuer in
the Securities or in this Indenture contained for a period of 60 days
after the date on which written notice specifying such failure, stating
that such notice is a "Notice of Default" hereunder and demanding that
the Issuer remedy the same, shall have been given by registered or
certified mail, return receipt requested, to the Issuer by the Trustee,
or to the Issuer and the Trustee by the Holders of at least 25% in
aggregate principal amount of the Outstanding Securities; or
(d) a court having jurisdiction in the premises shall enter a
decree or order for relief in respect of the Issuer in an involuntary
case or proceeding under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law now or hereafter in
effect, or a decree or order adjudging the Issuer a bankrupt or
insolvent, approving as properly filed a petition seeking
reorganization, assignment, adjustment or composition of, or in respect
of, the Issuer under any applicable Federal or State law or appointing
a receiver, liquidator, assignee, custodian, trustee, sequestrator (or
similar official) of the Issuer or for any substantial part of its
property or ordering the winding up or liquidation of its affairs, and
such decree or order shall remain unstayed and in effect for a period
of 60 consecutive days; or
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(e) the Issuer shall commence a voluntary case or proceeding
under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law now or hereafter in effect, or any
other case or proceeding to be adjudicated a bankrupt or insolvent, or
consent to the entry of an order for relief in an involuntary case or
proceeding under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law or to the commencement
of any bankruptcy or insolvency case or proceeding against it, or to
the filing by it of a petition or answer or consent seeking
reorganization or relief under any applicable Federal or State law, or
consent to the filing of such petition or to the appointment or taking
possession by a receiver, liquidator, assignee, custodian, trustee or
sequestrator (or similar official) of the Issuer or for any substantial
part of its property, or make any general assignment for the benefit
of creditors, or the admission by it in writing of its inability to pay
its debts generally as they become due, or the taking of corporate
action by the Issuer in furtherance of any such action.
If an Event of Default occurs and is continuing with respect
to the Securities, then, and in each and every such case, unless the principal
of all the Securities shall have already become due and payable, either the
Trustee or the Holders of not less than 25% in aggregate principal amount of the
Securities then Outstanding hereunder, by notice in writing to the Issuer (and
to the Trustee if given by Securityholders), may declare the entire principal of
all the Securities, and the interest accrued thereon, to be due and payable
immediately, and upon any such declaration the same shall become immediately due
and payable. This provision, however, is subject to the condition that if, at
any time after the Securities shall have been so declared due and payable, and
before any judgment or decree for the payment of the moneys due shall have been
obtained or entered as hereinafter provided, the Issuer shall pay or shall
deposit with the Trustee a sum sufficient to pay all matured installments of
interest upon all the Securities and the principal of any and all Securities
which shall have
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become due otherwise than by acceleration (with interest upon such principal
and, to the extent that payment of such interest is enforceable under applicable
law, on overdue installments of interest, at the same rate as the rate of
interest specified in the Securities, to the date of such payment or deposit)
and such amount as shall be sufficient to cover reasonable compensation to the
Trustee and each predecessor Trustee, their respective agents, attorneys and
counsel, and all other expenses and liabilities incurred, and all advances made,
by the Trustee and each predecessor Trustee except as a result of negligence or
bad faith, and if any and all Events of Default under the Indenture, other than
the non-payment of the interest on and principal of Securities which shall have
become due by acceleration, shall have been cured, waived or otherwise remedied
as provided herein--then and in every such case of such a cure the Holders of a
majority in aggregate principal amount of the Securities then Outstanding, by
written notice to the Issuer and to the Trustee, may waive all defaults and
rescind and annul such declaration and its consequences, but no such waiver or
rescission and annulment shall extend to or shall affect any subsequent default
or shall impair any right consequent thereon.
SECTION 4.2 Collection of Indebtedness by Trustee; Trustee May
Prove Debt. The Issuer covenants that (a) in case default shall be made in the
payment of any instalment of interest on any of the Securities when such
interest shall have become due and payable, and such default shall have
continued for a period of 30 days or (b) in case default shall be made in the
payment of all or any part of the principal of or premium, if any, on any of the
Securities when the same shall have become due and payable, whether upon
maturity or upon any redemption or by declaration or otherwise, then upon demand
of the Trustee, the Issuer will pay to the Trustee for the benefit of the
Holders of the Securities the whole amount that then shall have become due and
payable on all such Securities for principal, premium, if any, or interest, as
the case may be (with interest to the date of such payment upon the overdue
principal and, to the extent that payment of such interest is enforceable under
applicable law, on overdue installments
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of interest at the same rate as the rate of interest specified in the
Securities; and in addition thereto, such further amount as shall be sufficient
to cover the costs and expenses of collection, including reasonable compensation
to the Trustee and each predecessor Trustee, their respective agents, attorneys
and counsel, and any expense and liabilities incurred, and all advances made,
by the Trustee and each predecessor Trustee except as a result of its negligence
or bad faith.
Until such demand is made by the Trustee, the Issuer may pay
the principal of and premium, if any, and interest on the Securities to the
registered Holders, whether or not the Securities be overdue.
In case the Issuer shall fail forthwith to pay such amounts
upon such demand, the Trustee, in its own name and as trustee of an express
trust, shall be entitled and empowered to institute any action or proceedings at
law or in equity for the collection of the sums so due and unpaid, and may
prosecute any such action or proceedings to judgment or final decree, and may
enforce any such judgment or final decree against the Issuer or other obligor
upon the Securi ties and collect in the manner provided by law out of the
property of the Issuer or other obligor upon the Securities, wherever situated,
the moneys adjudged or decreed to be payable.
In case there shall be pending proceedings relative to the
Issuer or any other obligor upon the Securities under Title 11 of the United
States Code or any other applicable Federal or state bankruptcy, insolvency,
reorganization or other similar law, or in case a receiver, assignee or trustee
in bankruptcy or reorganization, liquidator, sequestrator or similar official
shall have been appointed for or taken possession of the Issuer or its property
or such other obligor, or in case of any other comparable judicial proceedings
relative to the Issuer or other obligor upon the Securities, or to the creditors
or property of the Issuer or such other obligor, the Trustee, irrespective of
whether the principal of the Securities shall then be due and payable as therein
expressed or by
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declaration or otherwise and irrespective of whether the Trustee shall have made
any demand pursuant to the provisions of this Section, shall be entitled and
empowered, by intervention in such proceedings or otherwise:
(a) to file and prove a claim or claims for the whole amount
of principal, premium, if any, and interest owing and unpaid in respect
of the Securities, and to file such other papers or documents as may be
necessary or advisable in order to have the claims of the Trustees
(including any claim for reasonable compensation to the Trustee and
each predecessor Trustee, and their respective agents, attorneys and
counsel, and for reimbursement of all expenses and liabilities
incurred, and all advances made, by the Trustee and each predecessor
Trustee, except as a result of negligence or bad faith) and of the
Securityholders allowed in any judicial proceedings relative to the
Issuer or other obligor upon the Securities, or to the creditors or
property of the Issuer or such other obligor,
(b) unless prohibited by applicable law and regulations, to
vote on behalf of the Holders of the Securities in any election of a
trustee or a standby trustee in arrangement, reorganization,
liquidation or other bankruptcy or insolvency proceedings or person
performing similar functions in comparable proceedings, and
(c) to collect and receive any moneys or other property
payable or deliverable on any such claims, and to distribute all
amounts received with respect to the claims of the Securityholders and
of the Trustee on their behalf; and any trustee, receiver, or
liquidator, custodian or other similar official is hereby authorized by
each of the Securityholders to make payments to the Trustee, and, in
the event that the Trustee shall consent to the making of payments
directly to the Securityholders, to pay to the Trustee such amounts as
shall be sufficient to cover reasonable compensation to the Trustee,
each predecessor Trustee
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and their respective agents, attorneys and counsel, and all other
expenses and liabilities incurred, and all advances made, by the
Trustee and each predecessor Trustee except as a result of negligence
or bad faith.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or vote for or accept or adopt on behalf of
any Securityholder any plan of reorganization, arrangement, adjustment or
caption affecting the Securities or the rights of any Holder thereof, or to
authorize the Trustee to vote in respect of the claim of any Securityholder in
any such proceeding except, as aforesaid, to vote for the election of a trustee
in bankruptcy or similar person.
All rights of action and of asserting claims under this
Indenture, or under any of the Securities, may be prosecuted and enforced by the
Trustee without the possession of any of the Securities or the production
thereof on any trial or other proceedings relative thereto, and any such action
or proceedings instituted by the Trustee shall be brought in its own name as
trustee of an express trust, and any recovery of judgment, subject to the
payment of the expenses, disbursements and compensation of the Trustee, each
predecessor Trustee and their respective agents and attorneys, shall be for the
ratable benefit of the Holders of the Securities.
In any proceedings brought by the Trustee (and also any
proceedings involving the interpretation of any provision of this Indenture to
which the Trustee shall be a party) the Trustee shall be held to represent all
the Holders of the Securities in respect of which such action was taken, and it
shall not be necessary to make any Holders of the Securities parties to any such
proceedings.
SECTION 4.3 Application of Proceeds. Any moneys collected by
the Trustee pursuant to this Article in respect of Securities shall be applied
in the following order at the date or dates fixed by the Trustee and, in case of
the distribution of such moneys on account of principal or interest, upon
presentation of the several Securities and
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stamping (or otherwise noting) thereon the payment, or issuing Securities in
reduced principal amounts in exchange for the presented Securities if only
partially paid, or upon surrender thereof if fully paid:
FIRST: To the payment of costs and expenses,
including any and all amounts due the Trustee under
Section 5.5;
SECOND: In case the principal of the Securities shall not have
become and be then due and payable, to the payment of interest on the
Securities in default in the order of the maturity of the installments
of such interest, with interest (to the extent that such interest has
been collected by the Trustee) upon the overdue installments of
interest at the same rate as the rate of interest specified in the
Securities, such payments to be made ratably to the person entitled
thereto, without discrimination or preference;
THIRD: In case the principal of the Securities shall have
become and shall be then due and payable, to the payment of the whole
amount then owing and unpaid upon all the Securities for principal,
premium, if any, and interest, with interest upon the overdue principal
and premium, if any, and (to the extent that such interest has been
collected by the Trustee) upon overdue installments of interest at the
same rate as the rate of interest specified in the Securities; and in
case such moneys shall be insufficient to pay in full the whole amount
so due and unpaid upon the Securities, then to the payment of such
principal, premium, if any, and interest, without preference or
priority of principal (and premium, if any) over interest, or of
interest over principal (and premium, if any), or of any instalment of
interest over any other instalment of interest, or of any Security over
any other Security, ratably to the aggregate of such principal,
premium, if any, and accrued and unpaid interest; and
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FOURTH: To the payment of the remainder, if any, to the Issuer
or any other person lawfully entitled thereto.
SECTION 4.4 Suits for Enforcement. In case an Event of Default
has occurred, has not been waived and is continuing, the Trustee may in its
discretion proceed to protect and enforce the rights vested in it by this
Indenture by such appropriate judicial proceedings as the Trustee shall deem
most effectual to protect and enforce any of such rights, either at law or in
equity or in bankruptcy or otherwise, whether for the specific enforcement of
any covenant or agreement contained in this Indenture or in aid of the exercise
of any power granted in this Indenture or to enforce any other legal or
equitable right vested in the Trustee by this Indenture or by law.
SECTION 4.5 Restoration of Rights or Abandonment of
Proceedings. In case the Trustee or any Securityholder shall have proceeded to
enforce any right under this Indenture and such proceedings shall have been
discontinued or abandoned for any reason, or shall have been determined
adversely to the Trustee or to such Securityholder, then and in every such case,
subject to any determination in such proceeding, the Issuer, the Trustee and the
Securityholders shall be restored severally and respectively to their former
positions and rights hereunder, and thereafter all rights, remedies and powers
of the Issuer, the Trustee and the Securityholders shall continue as though no
such proceedings had been taken.
SECTION 4.6 Limitations on Suits by Security holders. No
Holder of any Security shall have any right by virtue or by availing of any
provision of this Indenture to institute any action or proceeding, judicial or
otherwise, at law or in equity or in bankruptcy or otherwise upon or under or
with respect to this Indenture, or for the appoint ment of a trustee, receiver,
liquidator, custodian or other similar official or for any other remedy
hereunder, unless such Holder previously shall have given to the Trustee written
notice of a continuing Event of Default as herein before provided, and unless
also the Holders of not less
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than 25% in aggregate principal amount of the Securities then Outstanding shall
have made written request upon a Responsible Officer of the Trustee to institute
such action or proceedings in its own name as trustee hereunder and shall have
offered to the Trustee indemnity satisfactory to it as it may require against
the costs, expenses and liabilities to be incurred therein or thereby and the
Trustee for 45 days after its receipt of such notice, request and offer of
indemnity shall have failed to institute any such action or proceedings and no
direction inconsistent with such written request shall have been given to a
Responsible Officer of the Trustee pursuant to Section 4.9; it being understood
and intended, and being expressly covenanted by the Holder of every Security
with every other Holder of the Securities and the Trustee, that no one or more
Holders of Securities shall have any right in any manner whatever by virtue or
by availing of any provision of this Indenture to affect, disturb or prejudice
the rights of any other Holder of Securities, or to obtain or seek to obtain
priority over or preference to any other such Holder or to enforce any right
under this Indenture, except in the manner herein provided and for the equal,
ratable and common benefit of all Holders of Securities. For the protection and
enforcement of the provisions of this Section, each and every Securityholder and
the Trustee shall be entitled to such relief as can be given either at law or in
equity.
SECTION 4.7 Unconditional Right of Security holders to Receive
Principal, Premium and Interest, to Convert and to Institute Certain Suits.
Notwithstanding any other provision in this Indenture and any provision of any
Security, the right of any Holder of any Security to receive payment of the
principal of and premium, if any, and inter est on such Security on or after the
respective due dates expressed in such Security (or, in the case of redemption,
on the applicable Redemption Date or Repurchase Date), or to convert such
Security in accordance with Article Twelve, or to institute suit for the
enforcement of any such payment on or after such respective dates, or for the
enforcement of such conversion right, shall not be impaired or affected
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without the written consent of such Holder, with a copy thereof to the Trustee.
SECTION 4.8 Powers and Remedies Cumulative; Delay or Omission
Not Waiver of Default. Except as provided in Sections 2.7, no right or remedy
herein conferred upon or reserved to the Trustee or to the Securityholders is
intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at law
or in equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
No delay or omission of the Trustee or of any Holder of any of
the Securities to exercise any right or power accruing upon any Event of Default
occurring and continuing as aforesaid shall impair any such right or power or
shall be construed to be a waiver of any such Event of Default or an
acquiescence therein; and, subject to Section 4.6, every power and remedy given
by this Indenture or by law to the Trustee or to the Securityholders may be
exercised from time to time, and as often as shall be deemed expedient, by the
Trustee or by the Securityholders, as the case may be.
SECTION 4.9 Control by Securityholders. The Holders of a
majority in aggregate principal amount of the Securities at the time Outstanding
shall have the right to direct in writing the time, method, and place of
conducting any proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred on the Trustee; provided that such written
direction shall not be otherwise than in accordance with law and the provisions
of this Indenture; and provided, further, that (subject to the provisions of
Section 5.1) the Trustee shall have the right to decline to follow any such
direction if the Trustee, being advised by counsel, shall determine that the
action or proceeding so directed may expose the Trustee to personal liability or
if the Trustee in good faith by its board of
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directors or the executive committee thereof shall so determine that the actions
or forbearances specified in or pursuant to such direction would be unduly
prejudicial to the interests of Holders of the Securities not joining in the
giving of said direction, it being understood that (subject to Section 5.1) the
Trustee shall have no duty to ascertain whether or not such actions or
forbearances are unduly prejudicial to such Holders.
Nothing in this Indenture shall impair the right of the
Trustee in its discretion to take any action deemed proper by the Trustee and
which is not inconsistent with such direction by Securityholders.
SECTION 4.10 Waiver of Past Defaults. Prior to the declaration
of the maturity of the Securities as provided in Section 4.1, the Holders of a
majority in aggregate principal amount of the Securities at the time Outstanding
may on behalf of the Holders of all the Securities waive any past default or
Event of Default hereunder and its consequences, except a default in respect of
a covenant or provision hereof which cannot be modified or amended without the
consent of the Holder of each Security affected (including, without limitation,
the provisions with respect to payment of principal of and premium, if any, and
interest on such Security or with respect to conversion of such Security). A
copy of any such waiver or consent shall be delivered to the Trustee.
Upon any such waiver, such default shall cease to exist and be
deemed to have been cured and not to have occurred, and any Event of Default
arising therefrom shall be deemed to have been cured, and not to have occurred
for every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or Event of Default or impair any right consequent
thereon.
SECTION 4.11 Trustee to Give Notice of Default, But May
Withhold in Certain Circumstances. The Trustee shall, at the Issuer's expense,
transmit to the Holders of Securities, as the names and addresses of such
Holders appear on the registry books, notice by mail of all defaults
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known to a Responsible Officer of the Trustee, such notice to be transmitted
within 90 days after the occurrence thereof, unless such defaults shall have
been cured before the giving of such notice (the term "default" or "defaults"
for the purposes of this Section being hereby defined to mean any event or
condition which is, or with notice or lapse of time or both would become, an
Event of Default); provided that, except in the case of default in the payment
of the principal of or premium, if any, or interest on any of the Securities,
the Trustee shall be protected in withholding such notice if and so long as the
board of directors, the executive committee, or a trust committee of directors
or trustees and/or Responsible Officers of the Trustee in good faith determines
that the withholding of such notice is in the interests of the Securityholders.
SECTION 4.12 Right of Court to Require Filing of Undertaking
to Pay Costs. All parties to this Indenture agree, and each Holder of any
Security by his acceptance thereof shall be deemed to have agreed, that any
court may in its discretion require, in any suit for the enforcement of any
right or remedy under this Indenture or in any suit against the Trustee for any
action taken, suffered or omitted by it as Trustee, the filing by any party
litigant in such suit other than the Trustee of an undertaking to pay the costs
of such suit, and that such court may in its discretion assess reasonable costs,
including attorneys' fees, against any party litigant in such suit including the
Trustee, having due regard to the merits and good faith of the claims or
defenses made by such party litigant; but the provisions of this Section shall
not apply to any suit instituted by the Trustee, to any suit instituted by any
Securityholder or group of Securityholders holding in the aggregate more than
10% in aggregate principal amount of the Securities at the time Outstanding, or
to any suit instituted by any Securityholder for the enforcement of the payment
of the principal of or interest on any Security on or after the due date
expressed in such Security or for the enforcement of a right to convert any
Security in accordance with Article Twelve.
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SECTION 4.13 Waiver of Stay or Extension Laws. The Issuer
covenants (to the extent that it may lawfully do so) that it will not at any
time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any stay or extension law wherever enacted, now or at
any time hereafter in force, which may affect the covenants or the performance
of this Indenture; and the Issuer (to the extent that it may lawfully do so)
hereby expressly waives all benefit or advantage of any such law and covenants
that it will not hinder, delay or impede the execution of any power herein
granted to the Trustee, but will suffer and permit the execution of every such
power as though no such law had been enacted.
ARTICLE FIVE
CONCERNING THE TRUSTEE
SECTION 5.1 Duties and Responsibilities of the Trustee; During
Default; Prior to Default. With respect to the Holders of Securities issued
hereunder, the Trustee, prior to the occurrence of an Event of Default and after
the curing or waiving of all Events of Default which may have occurred,
undertakes to perform such duties and only such duties as are specifically set
forth in this Indenture. In case an Event of Default with respect to the
Securities has occurred and is continuing (which has not been cured or waived),
the Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise, as a
prudent person would exercise or use under the circumstances in the conduct of
such person's own affairs.
No provision of this Indenture shall be construed to relieve
the Trustee from liability for its own negligent action, its own negligent
failure to act or its own wilful misconduct or bad faith, except that
(a) prior to the occurrence of an Event of Default and after
the curing or waiving of all such Events of Default which may have
occurred:
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(i) the duties and obligations of the Trustee with
respect to Securities shall be determined solely by the
express provisions of this Indenture, and the Trustee shall
not be liable except for the performance of such duties and
obligations as are specifically set forth in this Indenture,
and no implied covenants or obligations shall be read into
this Indenture against the Trustee; and
(ii) in the absence of bad faith on the part of the
Trustee, the Trustee may conclusively rely, as to the truth of
the statements and the correct ness of the opinions expressed
therein, upon any resolution, statement, officer's
certificate, or any other certificate, instrument or opinion
furnished to the Trustee and conforming to the requirements of
this Indenture; but in the case of any such statements,
certificates or opinions which by any provision hereof are
specifically required to be furnished to the Trustee, the
Trustee shall be under a duty to examine the same to determine
whether or not they conform to the requirements of this
Indenture;
(b) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer or Responsible Officers of
the Trustee, unless it shall be proved that the Trustee was negligent
in ascertaining the pertinent facts; and
(c) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with the
direction of Holders pursuant to Section 4.9 relating to the time,
method and place of conducting any proceeding for any remedy available
to the Trustee, or exercising any trust or power conferred upon the
Trustee, under this Indenture.
None of the provisions contained in this Indenture shall
require the Trustee to expend or risk its own funds or otherwise incur personal
financial liability in the
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performance of any of its duties or in the exercise of any of its rights or
powers, if there shall be reasonable ground for believing that the repayment of
such funds or adequate indemnity against such liability is not reasonably
assured to it.
SECTION 5.2 Certain Rights of the Trustee.
Subject to Section 5.1:
(a) the Trustee may conclusively rely and shall be protected
in acting or refraining from acting upon any resolution, Officers'
Certificate or any other certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond, debenture,
note, coupon, security or other paper or document believed by it to be
genuine and to have been signed or presented by the proper party or
parties;
(b) any request, direction, order or demand of the Issuer
mentioned herein shall be sufficiently evidenced by an Officers'
Certificate (unless other evidence in respect thereof be herein
specifically prescribed); and any resolution of the Board of Directors
may be evidenced to the Trustee by a copy thereof certified by the
Secretary or an Assistant Secretary of the Issuer;
(c) the Trustee may consult with counsel of its selection at
the expense of the Issuer and any advice or Opinion of Counsel shall be
full and complete authorization and protection in respect of any action
taken, suffered or omitted to be taken by it hereunder in good faith
and in accordance with such advice or Opinion of Counsel;
(d) the Trustee shall be under no obligation to exercise any
of the trusts or powers vested in it by this Indenture at the request,
order or direction of any of the Securityholders pursuant to the
provisions of this Indenture, unless such Securityholders shall have
offered to the Trustee security or indemnity satisfactory to the
Trustee against the costs, expenses
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and liabilities which might be incurred therein or thereby;
(e) the Trustee shall not be liable for any action taken,
suffered or omitted by it in good faith and believed by it to be
authorized or within the discretion, rights or powers conferred upon it
by this Indenture;
(f) prior to the occurrence of an Event of Default hereunder
and after the curing or waiver of all Events of Default, the Trustee
shall not be bound to make any investigation into the facts or matters
stated in any resolution, certificate, statement, instrument, opinion,
report, notice, request, consent, order, approval, appraisal, bond,
debenture, note, coupon, security, or other paper or document unless
requested in writing so to do by the Holders of not less than a
majority in aggregate principal amount of the Securities then
Outstanding, but a Responsible Officer of the Trustee, in its
discretion, may make such further inquiries or investigation into such
facts or matters as it may see fit, and, if the Trustee shall determine
to make such inquiry or investigation, it shall be entitled to examine
the books, records and premises of the Issuer, personally or by agent
or attorney; provided that, if the payment within a reasonable time to
the Trustee of the costs, expenses or liabilities likely to be incurred
by it in the making of such investigation is, in the opinion of the
Trustee, not reasonably assured to the Trustee by the security afforded
to it by the terms of this Indenture, the Trustee may require indemnity
satisfactory to the Trustee against such expenses or liabilities as a
condition to proceeding; the expenses of every such examination shall
be paid by the Issuer or, if paid by the Trustee or any predecessor
trustee, shall be repaid by the Issuer upon demand;
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys not
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regularly in its employ and the Trustee shall not be responsible for
any misconduct or negligence on the part of any such agent or attorney
appointed with due care by it hereunder;
(h) the Trustee shall not be deemed to have notice of any
Default or Event of Default unless a Responsible Officer of the Trustee
has actual knowledge thereof or unless written notice of any event
which is in fact such a default is received by the Trustee at the
Corporate Trust Office of the Trustee, and such notice references the
Securities and this Indenture; and
(i) the rights, privileges, protections, immunities and
benefits given to the Trustee, including, without limitation, its right
to be indemnified, are extended to, and shall be enforceable by, the
Trustee in each of its capacities hereunder, and to each agent,
custodian and other Person employed to act hereunder.
SECTION 5.3 Trustee Not Responsible for Recitals, Disposition
of Securities or Application of Proceeds Thereof. The recitals contained herein
and in the Securi ties, except the Trustee's certificates of authentication,
shall be taken as the statements of the Issuer, and the Trustee assumes no
responsibility for the correctness of the same. The Trustee makes no
representation as to the validity or sufficiency of this Indenture or of the
Securi ties. The Trustee shall not be accountable for the use or application by
the Issuer of any of the Securities or of the proceeds thereof.
SECTION 5.4 Trustee and Agents May Hold Securities;
Collections, etc.. The Trustee or any agent of the Issuer or the Trustee, in its
individual or any other capacity, may become the owner or pledgee of Securities
with the same rights it would have if it were not the Trustee or such agent and,
subject to Section 5.8, may otherwise deal with the Issuer and receive, collect,
hold and retain
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collections from the Issuer with the same rights it would have if it were not
the Trustee or such agent.
SECTION 5.5 Compensation and Indemnification of Trustee and
Its Prior Claim. The Issuer covenants and agrees to pay to the Trustee from time
to time, and the Trustee shall be entitled to, such compensation as the Company
and the Trustee shall from time to time agree in writing for all services that
the Trustee shall provide hereunder (which compensation shall not be limited by
any provision of law in regard to the compensation of a trustee of an express
trust) and the Issuer covenants and agrees to pay or reimburse the Trustee and
each predecessor Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by or on behalf of it in accordance
with any of the provisions of this Indenture (including the compensation and the
expenses and disbursements of its counsel and of all agents and other persons
not regularly in its employ) except any such expense, disbursement or advance as
may arise from its negligence or bad faith. The Issuer also covenants to
indemnify the Trustee and each predecessor Trustee for, and to hold it harmless
against, any loss, damage, claim, liability or expense including taxes (other
than taxes based upon, measured by or determined by the income of the Trustee),
incurred without negligence or bad faith on its part, arising out of or in
connection with the acceptance or administration of this Indenture or the trusts
hereunder and its duties hereunder, including but not limited to the costs and
expenses of defending itself against or investigating any claim (whether
asserted by the Company, any Holder or any other Person) or liability in
connection with the exercise or performance of any of its powers or duties
hereunder. The obligations of the Issuer under this Section to compensate and
indemnify the Trustee and each predecessor Trustee and to pay or reimburse the
Trustee and each predecessor Trustee for expenses, disbursements and advances
shall constitute additional indebtedness hereunder and shall survive the
satisfaction and discharge of this Indenture. Such additional indebtedness shall
be a senior claim to that of the Securities upon all property and funds held or
collected by the Trustee as such, except funds held in trust
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for the payment of principal of or interest on particular Securities, and the
Securities are hereby subordinated to such senior claim. When the Trustee incurs
expenses or renders services in connection with an Event of Default specified in
Section 4.1 or in connection with Article Four hereof, the expenses (including
the reasonable fees and expenses of its counsel) and the compensation for the
service in connection therewith are intended to constitute expenses of
administration under any bankruptcy law.
SECTION 5.6 Right of Trustee to Rely on Officers' Certificate,
etc.. Subject to Sections 5.1 and 5.2, whenever in the administration of the
trusts of this Indenture the Trustee shall deem it necessary or desirable that a
matter be proved or established prior to taking or suffering or omitting any
action hereunder, such matter unless other evidence in respect thereof be herein
specifically prescribed) may, in the absence of negligence or bad faith on the
part of the Trustee, be deemed to be conclusively proved and established by an
Officers' Certificate delivered to the Trustee, and such certificate, in the
absence of negligence or bad faith on the part of the Trustee, shall be full
warrant to the Trustee for any action taken, suffered or omitted by it under the
provisions of this Indenture upon the faith thereof.
SECTION 5.7 Persons Eligible for Appointment as Trustee. The
Trustee hereunder shall at all times be a corporation organized and doing
business under the laws of the United States of America or of any State or the
District of Columbia. The Trustee and its direct parent shall at all times have
a combined capital and surplus of at least $50,000,000, and which is authorized
under such laws to exercise corporate trust powers and is subject to supervision
or examination by Federal, State or District of Columbia authority. If such
corporation publishes reports of condition at least annually, pursuant to law or
to the requirements of the aforesaid supervising or examining authority, then
for the purposes of this Section, the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published. In
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case at any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section, the Trustee shall resign immediately in the manner
and with the effect specified in Section 5.8.
The provisions of this Section 5.7 are in furtherance of and
subject to Section 310(a) of the TIA.
SECTION 5.8 Resignation and Removal; Appointment of Successor
Trustee. (a) The Trustee may at any time resign by giving written notice of
resignation to the Issuer. Upon receiving such notice of resignation, the Issuer
shall promptly appoint a successor trustee by written instrument in duplicate,
executed by authority of the Board of Directors, one copy of each instrument
shall be delivered to the resigning Trustee and one copy to the successor
trustee. If no successor trustee shall have been so appointed and have accepted
appointment within 30 days after the giving of such notice of resignation, the
resigning trustee may petition any court of competent jurisdiction for the
appointment of a successor trustee, or any Security holder who has been a bona
fide Holder of a Security or Securities for at least six months may, subject to
the provisions of Section 4.12, on behalf of himself and all others similarly
situated, petition any such court for the appointment of a successor trustee at
the expense of the Issuer. Such court may thereupon, after such notice, if any,
as it may deem proper and prescribe, appoint a successor trustee.
(b) If at any time any of the following shall occur:
(i) the Trustee shall fail to comply with the pro visions of
Section 310(b) of the TIA after written request therefor by the Issuer
or by any Securityholder who has been a bona fide Holder of a Security
or Securities for at least six months; or
(ii) the Trustee shall cease to be eligible in accordance with
the provisions of Section 5.7 and shall
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fail to resign after written request therefor by the Issuer or by any
Securityholders;
(iii) the Trustee shall become incapable of acting, or shall be
adjudged a bankrupt or insolvent, or a receiver or liquidator of the
Trustee or of its property shall be appointed, or any public officer
shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation;
then, in any such case, the Issuer may remove the Trustee and appoint a
successor trustee by written instrument, in duplicate, executed by order of the
Board of Directors of the Issuer, one copy of which instrument shall be
delivered to the Trustee so removed and one copy to the successor trustee, or
subject to the provisions of Section 4.12, any Securityholder who has been a
bona fide Holder of a Security or Securities for at least six months may on
behalf of himself and all others similarly situated, petition any court of
competent jurisdiction for the removal of the Trustee and the appointment of a
successor trustee. Such court may thereupon, after such notice, if any, as it
may deem proper and prescribe, remove the Trustee and appoint a successor
trustee.
(c) The Holders of a majority in aggregate principal amount of
the Securities at the time Outstanding may at any time remove the Trustee and
appoint a successor trustee by delivering to the Trustee so removed, to the
successor trustee so appointed and to the Issuer the evidence provided for in
Section 6.1 of the action in that regard taken by the Securityholders.
(d) Any resignation or removal of the Trustee and any
appointment of a successor trustee pursuant to any of the provisions of this
Section 5.8 shall become effective upon acceptance of appointment by the
successor trustee as provided in Section 5.9.
(e) The Issuer shall give notice of each resigna tion and each
removal of the Trustee and each appointment of
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a successor trustee by mailing written notice of such event by first-class mail,
postage prepaid, to the Holders of Securities affected as their names and
addresses appear in the Security register. Each notice shall include the name of
the successor trustee and the address of its principal corporate trust office.
SECTION 5.9 Acceptance of Appointment by Succes sor Trustee.
Any successor trustee appointed as provided in Section 5.8 shall execute and
deliver to the Issuer and to its predecessor trustee an instrument accepting
such appointment hereunder, and thereupon the resignation or removal of the
predecessor trustee shall become effective and such successor trustee, without
any further act, deed or conveyance, shall become vested with all rights,
powers, duties and obligations of its predecessor hereunder, with like effect as
if originally named as trustee herein; but, nevertheless, on the written request
of the Issuer or of the successor trustee, upon payment of its charges then
unpaid, the trustee ceasing to act shall, subject to Section 9.4, pay over to
the successor trustee all moneys at the time held by it hereunder and shall
execute and deliver an instrument prepared by the Issuer transferring to such
successor trustee all such rights, powers, duties and obligations. Upon request
of any such successor trustee, the Issuer shall execute any and all instruments
in writing for more fully and certainly vesting in and confirming to such
successor trustee all such rights and powers. Any trustee ceasing to act shall,
nevertheless, retain a prior claim upon all property or funds held or collected
by such trustee to secure any amounts then due it pursuant to the provisions of
Section 5.5.
Upon acceptance of appointment by a successor trustee as
provided in this Section 5.9, the Issuer shall mail notice thereof by
first-class mail to the Holders of Securities at their last addresses as they
shall appear in the Security register. If the acceptance of appointment is
substantially contemporaneous with the resignation, then the notice called for
by the preceding sentence may be combined with the notice called for by Section
5.8. If the Issuer fails to mail such notice within 10 days after acceptance of
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appointment by the successor trustee, the successor trustee shall cause such
notice to be mailed at the expense of the Issuer.
SECTION 5.10 Merger, Conversion, Consolidation or Succession
to Business of Trustee. Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Trustee shall be a
party, or any corporation succeeding to the cor porate trust business of the
Trustee, shall be the successor of the Trustee hereunder without the execution
or filing of any paper or any further act on the part of any of the parties
hereto, anything herein to the contrary notwithstanding; provided that such
corporation shall be qualified under the provisions of Section 310(b) of the TIA
and eligible under the provisions of Section 5.7.
In case at the time such successor 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 authen ticated, any successor to the Trustee may
authenticate such Securities either in the name of any predecessor hereunder or
in the name of the successor trustee; and in all such cases such certificate
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; provided that
the right to adopt the certificate of authentication of any predecessor trustee
or to authenticate Securities of any series in the name of any predecessor
trustee shall apply only to its successor or successors by merger, conversion or
consolidation.
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ARTICLE SIX
CONCERNING THE SECURITYHOLDERS
SECTION 6.1 Evidence of Action Taken by Security holders. Any
request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be given or taken by Securityholders may be
embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such Securityholders in person or by an agent duly appointed in
writing; and, except as herein otherwise expressly provided, such action shall
become effective when such instrument or instruments are delivered to the
Trustee. Proof of execution of any such instrument or of a writing appointing
any such agent shall be sufficient for any purpose of this Indenture and
(subject to Sections 5.1 and 5.2) conclusive in favor of the Trustee and the
Issuer, if made in the manner provided in this Article.
SECTION 6.2 Proof of Execution of Instruments and of Holding
of Securities. Subject to Sections 5.1 and 5.2, the fact and date of the
execution of any instrument by any Securityholder or his agent or proxy, or the
authority of such an agent or proxy to execute such an instrument may be proved
(i) by the affidavit of a witness of such execution, (ii) by a certificate of a
notary public (or other officer authorized by law to take acknowledgments of
deeds) as to such execution, or (iii) in accordance with such reasonable rules
and regulations as may be prescribed by the Trustee or in such manner as shall
be reasonably satisfactory to the Trustee. The holding of Securities shall be
proved by the Security register or by a certificate of the registrar thereof.
SECTION 6.3 Holders to Be Treated as Owners. Prior to due
presentment of a Security for registration of transfer, the Issuer, the Trustee,
any Agent and any agent of the Issuer or the Trustee may deem and treat the
person in whose name any Security shall be registered upon the Security register
as the absolute owner of such Security (whether or not such Security shall be
overdue and
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notwithstanding any notation of ownership or other writing thereon) for the
purpose of receiving payment of or on account of the principal of and, subject
to the provisions of this Indenture, interest on such Security and for all other
purposes; and neither the Issuer nor the Trustee nor any Agent or agent of the
Issuer or the Trustee shall be affected by any notice to the contrary. All such
payments so made to any such person, or upon his order, shall be valid, and, to
the extent of the sum or sums so paid, effectual to satisfy and discharge the
liability for moneys payable upon any such Security.
SECTION 6.4 Securities Owned by Issuer Deemed Not Outstanding.
In determining whether the Holders of the requisite principal amount of
Outstanding Securities have concurred in any direction, consent or waiver under
this Indenture, Securities which are owned by the Issuer or any other obligor on
the Securities or any Affiliate of the Issuer or of such other obligor shall be
disregarded and deemed not to be Outstanding for the purpose of any such
determination, except that for the purpose of determining whether the Trustee
shall be protected in relying on any such direction, consent or waiver only
Securities which the Trustee knows are so owned shall be so disregarded. Securi
ties so owned which have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the Trustee in
writing the pledgee's right so to act with respect to such Securities and that
the pledgee is not the Issuer or any other obligor upon the Securities or any
Affiliate of the Issuer or of such other obligor. In case of a dispute as to
such right, the advice of counsel shall be full protection in respect of any
decision made by the Trustee in accordance with such advice. Upon request of the
Trustee, the Issuer shall furnish to the Trustee promptly an Officers'
Certificate listing and identifying all Securities, if any, known by the Issuer
to be owned or held by or for the account of any of the above-described Persons;
and, subject to Sections 5.1 and 5.2, the Trustee shall be entitled to accept
such Officers' Certificate as conclusive evidence of the facts therein set forth
and of the fact that all Securities not listed therein are Outstanding for the
purpose of any such determination.
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SECTION 6.5 Right of Revocation of Action Taken. At any time
prior to (but not after) the evidencing to the Trustee, as provided in Section
6.1, of the taking of any action by the Holders of the percentage in aggregate
principal amount of the Securities specified in this Indenture in connection
with such action, any Holder of a Security the serial number of which is shown
by the evidence to be included among the serial numbers of the Securities the
Holders of which have consented to such action may, by filing written notice at
the Corporate Trust Office and upon proof of holding as provided in this
Article, revoke such action so far as concerns such Security. Except as afore
said any such action taken by the Holder of any Security shall be conclusive and
binding upon such Holder and upon all future Holders and owners of such Security
and of any Securities issued in exchange or substitution therefor or on
registration or transfer thereof, irrespective of whether or not any notation in
regard thereto is made upon any such Security. Any action taken by the Holders
of the percentage in aggregate principal amount of the Securities specified in
this Indenture in connection with such action shall be conclusively binding upon
the Issuer, the Trustee and the Holders of all the Securities.
SECTION 6.6 Record Date for Consents and Waivers. The Issuer
may, but shall not be obligated to, direct the Trustee to establish a record
date for the purpose of determining the Persons entitled to (i) waive any past
default with respect to the Securities in accordance with Section 4.10, (ii)
consent to any supplemental indenture in accordance with Section 7.2 or (iii)
waive compliance with any term, condition or provision of any covenant hereunder
(if the Indenture should expressly provide for such waiver). If a record date is
fixed, the Holders of Securities on such record date, or their duly designated
proxies, and any such Persons, shall be entitled to waive any such past default,
consent to any such supplemental indenture or waive compliance with any such
term, condition or provision, whether or not such Holder remains a Holder after
such record date; provided, however, that unless such waiver or consent is
obtained from the Holders, or duly designated proxies, of the requisite
principal amount of Outstanding
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Securities prior to the date which is the 90th day after such record date, any
such waiver or consent previously given shall automatically and without further
action by any Holder be cancelled and of no further effect.
ARTICLE SEVEN
SUPPLEMENTAL INDENTURES
SECTION 7.1 Supplemental Indentures Without Consent of
Securityholders. The Issuer, when authorized by a resolution of its Board of
Directors, and the Trustee may from time to time and at any time enter into an
indenture or indentures supplemental hereto (which shall conform to the
provisions of the TIA as in force at the date of the execution thereof) for one
or more of the following purposes:
(a) to convey, transfer, assign, mortgage or pledge to the
Trustee as security for the Securities any property or assets;
(b) to evidence the succession of another corporation to the
Issuer, or successive successions, and the assumption by the successor
corporation of the covenants, agreements and obligations of the Issuer
pursuant to Article Eight;
(c) to add to the covenants of the Issuer such further
covenants, restrictions, conditions or provisions (including without
limitation provisions necessary or desirable to qualify this Indenture
under the TIA) as its Board of Directors and the Trustee shall consider
to be for the protection or benefit of the Holders of Securities, and
to make the occurrence, or the occurrence and continuance, of a default
in any such additional covenants, restrictions, conditions or
provisions an Event of Default permitting the enforcement of all or any
of the several remedies provided in this Indenture as herein set forth;
provided that in respect of any such additional
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covenant, restriction, condition or provision such supplemental
indenture may provide for a particular period of grace after default
(which period may be shorter or longer than that allowed in the case of
other defaults) or may provide for an immediate enforcement upon such
an Event of Default or may limit the remedies available to the Trustee
upon such an Event of Default or may limit the right of the Holders of
a majority in aggregate principal amount of the Securities to waive
such an Event of Default;
(d) to cure any ambiguity or to correct or supplement any
provision contained herein or in any supplemental indenture which may
be defective or inconsistent with any other provision contained herein
or in any supplemental indenture or to make such other provision in
regard to matters or questions arising under this Indenture or under
any supplemental indenture as the Board of Directors may deem necessary
or desirable, provided that no such action shall adversely affect the
interests of the Holders of the Securities;
(e) to provide for adjustment of conversion rights pursuant to
Section 12.5; or
(f) to evidence the removal or resignation of the Trustee and
the appointment of a successor Trustee or Trustees pursuant to Article
Five.
The Trustee is hereby authorized to join in the execution of
any such supplemental indenture, to make any further appropriate agreements and
stipulations, which may be therein contained, and to accept the conveyance,
transfer, assignment, mortgage or pledge of any property thereunder, but the
Trustee shall not be obligated to enter into any such supplemental indenture
which affects adversely the Trustee's own rights, duties, immunities or
liabilities under this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of
this Section 7.1 may be executed without the
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consent of the Holders of any of the Securities at the time Outstanding,
notwithstanding any of the provisions of Section 7.2.
SECTION 7.2 Supplemental Indentures with Consent of
Securityholders. With the consent (evidenced as provided in Article Six) of the
Holders of not less than a majority in aggregate principal amount of the
Securities at the time Outstanding, the Issuer, when authorized by a resolution
of its Board of Directors, and the Trustee may, from time to time and at any
time, enter into an indenture or indentures supplemental hereto (which shall
conform to the provisions of the TIA as in force at the date of execution
thereof) for the purpose of adding any provisions to or changing in any manner
or eliminating any of the provisions of this Indenture or of any supplemental
indenture or of modifying in any manner the rights of the Holders of the
Securities; provided that no such supplemental indenture shall (a) extend the
final maturity of any Security, or reduce the principal amount thereof or
premium, if any, thereon, or reduce the rate or extend the time of payment of
interest thereon, or any premium payable upon the redemption thereof, or change
the place of payment where, or the coin or currency in which, any principal,
premium or interest is payable, or reduce or alter the method of calculation of
any amount payable on redemption, repurchase or repayment thereof (or the time
at which any such redemption, repurchase or repayment may be made), or impair or
adversely affect the right of any Securityholder to institute suit for the
payment or conversion thereof or adversely affect the right to convert the
Securities in accordance with Article Twelve, in each case, without the consent
of the Holder of each Security so affected; provided no consent of any Holder of
any Security shall be necessary under this Section 7.2 to permit the Trustee and
the Issuer to execute supplemental indentures pursuant to Section 7.1(e) and
Section 12.5 of this Indenture; or (b) reduce the aforesaid percentage in
principal amount of Outstanding Securities, the consent of the Holders of which
is required for any such supplemental indenture, without the consent of the
Holders of each Security so affected; or (c) reduce the percentage of Securities
necessary to consent to waive any past default
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under this Indenture to less than a majority, without the consent of the Holders
of each Security so affected; or (d) modify any of the provisions of this
Section or Section 4.10, except to increase any such percentage provided in
either such Section or to provide that certain other provisions of this
Indenture cannot be modified or waived without the consent of the Holder of each
Security affected thereby.
Upon the request of the Issuer, accompanied by a copy of a
resolution of the Board of Directors (which resolution may provide general terms
or parameters for such action and may provide that the specific terms of such
action may be determined in accordance with or pursuant to an Issuer Order),
certified by the Secretary or an Assistant Secretary of the Issuer, authorizing
the execution of any such supplemental indenture, and upon the filing with the
Trustee of evidence of the consent of Securityholders and other documents, if
any, required by Section 6.1, the Trustee shall join with the Issuer in the
execution of such supplemental indenture unless such supplemental indenture
adversely affects the Trustee' own rights, duties, immunities or liabilities
under this Indenture or otherwise, in which case the Trustee may in its
discretion, but shall not be obligated to, enter into such supplemental
indenture.
It shall not be necessary for the consent of the
Securityholders under this Section to approve the particular form of any
proposed supplemental indenture, but it shall be sufficient if such consent
shall approve the substance thereof.
Promptly after the execution by the Issuer and the Trustee of
any supplemental indenture pursuant to the provisions of this Section, the
Issuer shall mail a notice thereof by first-class mail to the Holders of
Securities at their addresses as they shall appear on the registry books of the
Issuer, setting forth in general terms the substance of such supplemental
indenture. Any failure of the Issuer to mail such notice, or any defect therein,
shall not, however, in any way impair or affect the validity of any such
supplemental indenture.
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SECTION 7.3 Effect of Supplemental Indenture. Upon the
execution of any supplemental indenture pursuant to the provisions hereof, this
Indenture shall be and be deemed to be modified and amended in accordance
therewith and the respective rights, limitations of rights, obligations, duties
and immunities under this Indenture of the Trustee, the Issuer and the Holders
of Securities shall thereafter be determined, exercised and enforced hereunder
subject in all respects to such modifications and amendments, and all the terms
and conditions of any such supplemental indenture shall be and be deemed to be
part of the terms and conditions of this Indenture for any and all purposes.
SECTION 7.4 Documents to Be Given to Trustee. The Trustee,
subject to the provisions of Sections 5.1 and 5.2, may upon request receive an
Officers' Certificate and an Opinion of Counsel as conclusive evidence that any
such supplemental indenture complies with the applicable provisions of this
Indenture.
SECTION 7.5 Notation on Securities in Respect of Supplemental
Indentures. Securities authenticated and delivered after the execution of any
supplemental indenture pursuant to the provisions of this Article may bear a
notation as to any matter provided for by such supplemental indenture. If the
Issuer shall so determine, new Securities so modified as to conform, in the
opinion of the Board of Directors, to any modification of this Indenture
contained in any such supplemental indenture may be prepared by the Issuer,
authenticated by the Trustee and delivered in exchange for the Securities then
Outstanding.
ARTICLE EIGHT
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 8.1 Covenant Not to Merge, Consolidate, Sell or Convey
Property Except Under Certain Conditions. The Issuer may not consolidate or
merge with or into (whether or not the Issuer is the Surviving Person), or sell,
assign, transfer, lease, convey or otherwise dispose of all or
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substantially all of its properties or assets in one or more related
transactions, to another Person (each a "Disposition"), unless:
(i) the Surviving Person is a corporation organized or existing under
the laws of the United States, any state thereof or the District of
Columbia;
(ii) the Surviving Person (if other than the Issuer) assumes all the
obligations of the Issuer under the Securities and this Indenture, and
makes provision for conversion rights in accordance with Section 12.5,
pursuant to a supplemental indenture in a form reasonably satisfactory
to the Trustee; and
(iii) immediately after such Disposition, no Event of Default or event
that, after the giving of notice or the passage of time or both, would
be an Event of Default, shall have occurred and be continuing.
SECTION 8.2 Successor Corporation or Entity Substituted. In
case of any such consolidation, merger, sale or conveyance, and following such
an assumption by the successor corporation, partnership or limited liability
company, such successor corporation, partnership or limited liability company
shall succeed to and be substituted for the Issuer, with the same effect as if
it had been named herein.
Such successor corporation, partnership or limited liability
company may cause to be signed, and may issue either in its own name or in the
name of the Issuer prior to such succession any or all of the Securities
issuable hereunder which theretofore shall not have been signed by the Issuer
and delivered to the Trustee; and, upon the order of such successor corporation,
partnership or limited liability company, instead of the Issuer, and subject to
all the terms, conditions and limitations in this Indenture prescribed, the
Trustee shall authenticate and shall deliver
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any Securities which previously shall have been signed and delivered by the
officers of the Issuer to the Trustee for authentication, and any Securities
which such successor corporation, partnership or limited liability company
thereafter shall cause to be signed and delivered to the Trustee for that
purpose. All of the Securities so issued shall in all respects have the same
legal rank and benefit under this Indenture as the Securities theretofore or
thereafter issued in accordance with the terms of this Indenture as though all
of such Securities had been issued at the date of the execution hereof.
In case of any such consolidation, merger, sale, lease or
conveyance, such changes in phraseology and form (but not in substance) may be
made in the Securities thereafter to be issued as may be appropriate.
In the event of any such sale or conveyance (other than a
conveyance by way of lease), the Issuer or any successor corporation,
partnership or limited liability company which shall theretofore have become
such in the manner described in this Article shall be discharged from all
obligations and covenants under this Indenture and the Securities and may be
liquidated and dissolved.
SECTION 8.3 Opinion of Counsel and Officers' Certificate to
Trustee. The Trustee, subject to the provisions of Sections 5.1 and 5.2, may
upon request receive an Opinion of Counsel prepared in accordance with Section
10.5 and an Officers' Certificate (confirming satisfaction of the conditions of
clauses (i), (ii) and (iii) of Section 8.1) as conclusive evidence that any such
consolidation, merger, sale, lease or conveyance, and any such assumption, and
any such liquidation or dissolution, complies with the applicable provisions of
this Indenture.
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ARTICLE NINE
SATISFACTION AND DISCHARGE
OF INDENTURE; UNCLAIMED MONEYS
SECTION 9.1 Satisfaction and Discharge of Indenture. If at any
time (a) the Issuer shall have paid or caused to be paid the principal of and
premium, if any, and interest on all the Securities then Outstanding hereunder,
as and when the same shall have become due and payable, or (b) the Issuer shall
have delivered to the Trustee for cancellation all Securities theretofore
authenticated (other than any Securities which shall have been destroyed, lost
or stolen and which shall have been replaced or paid as provided in Section 2.7)
or (c) (i) all such Securities not theretofore delivered to the Trustee for
cancellation (x) shall have become due and payable, or (y) are by their terms to
become due and payable within one year or are to be called for redemption within
one year under arrangements reasonably satisfactory to the Trustee for the
giving of notice of redemption, and (ii) the Issuer shall have irrevocably
deposited or caused to be deposited with the Trustee as trust funds the entire
amount in cash (other than moneys repaid by the Trustee or any Paying Agent to
the Issuer in accordance with Section 9.4) or U.S. Government Obligations
maturing as to principal and interest at such times and in such amounts as will
insure the availability of cash, or a combination thereof, sufficient in the
opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, to pay
the principal of and interest on all Securities on each date that such principal
or interest is due and payable; and if, in any such case, the Issuer shall also
pay or cause to be paid all other sums payable hereunder by the Issuer, then
this Indenture shall cease to be of further effect (except as to (i) rights of
registration of transfer, conversion and exchange of Securities, and the
Issuer's right of optional redemption contemplated in clause (c)(i)(y) above
(but not otherwise and not including the Holders' right of redemption or
repurchase contemplated by Article Thirteen or Article Fourteen), (ii)
substitution of apparently mutilated,
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defaced, destroyed, lost or stolen Securities, (iii) rights of the Holders of
Securities to receive payments of principal thereof and premium, if any and
interest thereon upon the original stated due dates therefor (but not upon
acceleration), (iv) the rights, obligations and immunities of the Trustee
hereunder, including any right to compensation and indemnification under Section
5.5, and (v) the rights of the Holders of Securities as beneficiaries hereof
with respect to the property so deposited with the Trustee payable to all or any
of them), and the Trustee, on Issuer Order accompanied by an Officers'
Certificate and an Opinion of Counsel stating that the provisions of this
Section have been complied with and at the cost and expense of the Issuer, shall
execute proper instruments prepared by the Issuer acknowledging such
satisfaction of and discharging this Indenture, provided, that the rights of
Holders of the Securities to receive amounts in respect of principal of,
premium, if any, and interest on the Securities held by them shall not be
delayed longer than required by then-applicable mandatory rules or policies of
any securities exchange upon which the Securities are listed. In addition, in
connection with the satisfaction and discharge pursuant to clause (c)(i)(y)
above, the Trustee shall give notice to the Holders of Securities of such
satisfaction and discharge. The Issuer agrees to reimburse the Trustee for any
costs or expenses thereafter reasonably and properly incurred and to compensate
the Trustee for any services thereafter reasonably and properly rendered by the
Trustee in connection with this Indenture or the Securities.
Notwithstanding the satisfaction and discharge of this
Indenture, the obligations of the Issuer to the Trustee under Section 5.5 shall
survive.
SECTION 9.2 Application by Trustee of Funds Deposited for
Payment of Securities. Subject to Section 9.4, all moneys and securities
deposited with the Trustee pursuant to Section 9.1 shall be held in trust and
applied by it to the payment, either directly or through any Paying Agent
(including the Issuer acting as its own Paying Agent), to the Holders of the
particular Securities for the
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payment or redemption of which such moneys or Securities have been deposited
with the Trustee of all sums due and to become due thereon for principal and
interest; but such moneys or securities need not be segregated from other funds
except to the extent required by law.
SECTION 9.3 Repayment of Moneys Held by Paying Agent. In
connection with the satisfaction and discharge of this Indenture with respect to
Securities, all moneys then held by any Paying Agent under the provisions of
this Indenture shall, upon Issuer Order, be repaid to it or paid to the Trustee
and thereupon such Paying Agent shall be released from all further liability
with respect to such moneys.
SECTION 9.4 Return of Moneys Held by Trustee and Paying Agent
Unclaimed for Two Years. Any moneys deposited with or paid to the Trustee or any
Paying Agent for the payment of the principal of or premium, if any, or interest
on any Security and not applied but remaining unclaimed for two years after the
date upon which such principal, premium or interest shall have become due and
payable shall, upon the written request of the Issuer and unless otherwise
required by mandatory provisions of applicable escheat or abandoned or unclaimed
property law, be repaid to the Issuer by the Trustee or such Paying Agent, and
the Holder of the Securities shall, unless otherwise required by mandatory
provisions of applicable escheat or abandoned or unclaimed property laws,
thereafter look only to the Issuer for any payment which such Holder may be
entitled to collect, and all liability of the Trustee or any Paying Agent with
respect to such moneys shall thereupon cease; provided, however, that the
Trustee or such Paying Agent, before being required to make any such repayment
with respect to moneys deposited with it for any payment, shall, at the expense
of the Issuer, mail by first-class mail to Holders of such Securities at their
addresses as they shall appear on the Security register notice that such moneys
remain and that, after a date specified therein, which shall not be less than 30
days from the date of such mailing, any unclaimed balance of such money then
remaining will be repaid to the Issuer upon Issuer Order.
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SECTION 9.5 Indemnity for U.S. Government Obligations. The
Issuer shall pay and indemnify the Trustee against any tax, fee or other charge
imposed on or assessed against the U.S. Government Obligations deposited
pursuant to Section 9.1 or the principal or interest received in respect of such
obligations.
ARTICLE TEN
MISCELLANEOUS PROVISIONS
SECTION 10.1 Partners, Incorporators, Stockholders, Officers
and Directors of Issue Exempt from Individual Liability. No recourse under or
upon any obliga tion, covenant or agreement contained in this Indenture, or in
any Security, or because of any indebtedness evidenced thereby, shall be had
against any incorporator, as such, or against any past, present or future
stockholder, officer or director, as such, of the Issuer or of any partner or
member of the Issuer or of any successor, either directly or through the Issuer
or any successor, under any rule of law, statute or constitutional provision or
by the enforcement of any assessment or by any legal or equitable proceeding or
otherwise, all such liability being expressly waived and released by the
acceptance of the Securities by the Holders thereof and as part of the
consideration for the issue of the Securities.
SECTION 10.2 Provisions of Indenture for the Sole Benefit of
Parties and Securityholders. Nothing in this Indenture or in the Securities,
expressed or implied, shall give or be construed to give to any Person, other
than the parties hereto and their successors and the Holders of the Securities,
any legal or equitable right, remedy or claim under this Indenture or under any
covenant or provision herein contained, all such covenants and provisions being
for the sole benefit of the parties hereto and their successors and the Holders
of the Securities.
SECTION 10.3 Successors and Assigns of Issuer Bound by
Indenture. All the covenants, stipulations,
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promises and agreements in this Indenture contained by or on behalf of the
Issuer shall bind its successors and assigns, whether so expressed or not.
SECTION 10.4 Notices and Demands on Issuer, Trustee and
Securityholders. Any notice or demand which by any provision of this Indenture
is required or permitted to be given or served by the Trustee or by the Holders
of Securities to or on the Issuer may be given or served by being deposited
postage prepaid, first-class mail (except as otherwise specifically provided
herein) addressed (until another address of the Issuer is filed by the Issuer
with the Trustee) to American Tower Corporation, 116 Huntington Avenue, Boston,
MA 02116, Attention: Chief Financial Officer and Secretary. Any notice,
direction, request or demand by the Issuer or any Securityholder to or upon the
Trustee shall be deemed to have been sufficiently given or made, for all
purposes, if given or made at the Corporate Trust Office, Attention: Corporate
Trust Trustee Administration Department.
Where this Indenture provides for notice to Holders, such
notice shall be sufficiently given (except as otherwise specifically provided
herein) if in writing, and mailed, first-class postage prepaid, to each Holder
entitled thereto, at his last address as it appears in the Security register. In
any case where notice to Holders is given by mail, neither the failure to mail
such notice, nor any defect in any notice so mailed, to any particular Holder
shall affect the sufficiency of such notice with respect to other Holders. Where
this Indenture provides for notice in any manner, such notice may be waived in
writing by the Person entitled to receive such notice, either before or after
the event, and such waiver shall be the equivalent of such notice. Waivers of
notice by Holders shall be filed with the Trustee, but such filing shall not be
a condition precedent to the validity of any action taken in reliance upon such
waiver.
In case, by reason of the suspension of or irregu larities in
regular mail service, it shall be impracticable to mail notice to the Issuer and
Securityholders when such
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notice is required to be given pursuant to any provision of this Indenture, then
any manner of giving such notice as shall be satisfactory to the Trustee shall
be deemed to be a sufficient giving of such notice.
SECTION 10.5 Officers' Certificates and Opinions of Counsel;
Statements to Be Contained Therein. Upon any application or demand by the Issuer
to the Trustee to take any action under any of the provisions of this Indenture,
the Issuer shall furnish to the Trustee an Officers' Certificate stating that
all conditions precedent provided for in this Indenture relating to the proposed
action have been complied with and an Opinion of Counsel stating that in the
opinion of such counsel all such conditions precedent have been complied with,
except that in the case of any such application or demand as to which the
furnishing of such documents is specifically required by any provision of this
Indenture relating to such particular application or demand, no additional
certificate or opinion need be furnished.
Each certificate or opinion provided for in this Indenture and
delivered to the Trustee with respect to compliance with a condition or covenant
provided for in this Indenture shall include (a) a statement that the person
making such certificate or opinion has read such covenant or condition, (b) a
brief statement as to the nature and scope of the examination or investigation
upon the statements or opinions contained in such certificate or opinion are
based, (c) a statement that, in the opinion of such person, he has made such
examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with, and (d) a statement as to whether or not, in the opinion of such
person, such condition or covenant has been complied with.
Any certificate, statement or opinion of an officer of the
Issuer may be based, insofar as it relates to legal matters, upon a certificate
or opinion of or represen tations by counsel, unless such officer knows that the
certificate or opinion or representations with respect to the matters upon which
his certificate, statement or opinion may be based as aforesaid are erroneous,
or in the exercise
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of reasonable care should know that the same are erroneous. Any certificate,
statement or opinion of counsel may be based, insofar as it relates to factual
matters, information with respect to which is in the possession of the Issuer,
upon the certificate, statement or opinion of or representa tions by an officer
or officers of the Issuer, unless such counsel knows that the certificate,
statement or opinion or representations with respect to the matters upon which
his certificate, statement or opinion may be based as aforesaid are erroneous,
or in the exercise of reasonable care should know that the same are erroneous.
Any certificate, statement or opinion of an officer of the
Issuer or of counsel may be based, insofar as it relates to accounting matters,
upon a certificate or opinion of or representations by an accountant or firm of
accountants in the employ of the Issuer, unless such officer or counsel, as the
case may be, knows that the certificate or opinion or representations with
respect to the accounting matters upon which his certificate, statement or
opinion may be based as aforesaid are erroneous, or in the exercise of
reasonable care should know that the same are erroneous.
Any certificate or opinion of any independent firm of public
accountants filed with the Trustee shall contain a statement that such firm is
independent.
SECTION 10.6 Payments Due on Saturdays, Sundays and Legal
Holidays. If the date of maturity of interest on or principal of the Securities
or the date fixed for redemp tion or repayment of any Security or the last date
on which a Holder of Securities has a right to convert his Securities shall not
be a Business Day, then (notwithstanding any other provision of this Indenture
or of the Securities) payment of interest or principal or conversion of the
Securities need not be made on such date, but may be made on the next succeeding
Business Day with the same force and effect as if made on the date of maturity
or the date fixed for redemption or repayment or on such last day for
conversion, and no interest shall accrue for the period after such date.
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SECTION 10.7 Conflict with TIA. Whether or not qualified under
the TIA, this Indenture shall be interpreted as though it were so qualified
including provisions required by the TIA or provisions deemed included except as
varied by this Indenture. If any provision hereof limits, qualifies or conflicts
with a provision of the TIA that is required under the TIA to be a part of and
govern this Indenture, the latter provision shall control. If any provision of
this Indenture modifies or excludes any provision of the TIA that may be so
modified or excluded, the latter provision shall be deemed to apply to this
Indenture as so modified or to be excluded, as the case may be.
SECTION 10.8 Communications by Holders with Other Holders.
Securityholders may communicate pursuant to Section 312(b) of the TIA with other
Holders with respect to their rights under this Indenture or the Securities. The
Issuer, the Trustee, the Registrar and any other person shall have the
protection of Section 312(c) of the TIA.
SECTION 10.9 Issuer to Furnish Trustee Names and Addresses of
Holders. The Issuer will furnish or cause to be furnished to the Trustee:
(a) semiannually, not later than January 15 and July 15 in
each year, a list, in such form as the Trustee may reasonably require,
of the names and addresses of the Securityholders as of a date not more
than 15 days prior to the delivery thereof, and
(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Issuer of any such request, a
list of similar form and content as of a date not more than 15 days
prior to the time such list is furnished;
excluding from any such list names and addresses received by the Trustee in the
capacity of Registrar.
SECTION 10.10 New York Law to Govern. This Indenture and each
Security shall be deemed to be a contract under the laws of the State of New
York, and for all
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purposes shall be construed in accordance with the laws of said State, without
regard to principles of conflicts of laws.
SECTION 10.11 Counterparts. This Indenture may be executed in
any number of counterparts, each of which shall be an original; but such
counterparts shall together constitute but one and the same instrument.
SECTION 10.12 Effect of Headings. The Article and Section
headings herein and the Table of Contents are for convenience only and shall not
affect the construction hereof.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 11.1 Right of Optional Redemption; Prices. The Issuer
at its option may, on and after February 20, 2003, redeem all, or from time to
time any part of, the Securities upon payment of the optional Redemption Prices
set forth in the form of Security attached as Exhibit A hereto, together with
accrued interest to the date fixed for redemption.
SECTION 11.2 Notice of Redemption; Partial Redemptions. Notice
of redemption to the Holders of Securities to be redeemed as a whole or in part
shall be given by mailing notice of such redemption by first-class mail, postage
prepaid, at least 20 days and not more than 60 days prior to the date fixed for
redemption to such Holders of Securities at their last addresses as they shall
appear upon the registry books. Any notice which is mailed in the manner herein
provided shall be conclusively presumed to have been duly given, whether or not
the Holder receives the notice. Failure to give notice by mail, or any defect in
the notice to the Holder of any Security designated for redemption as a whole or
in part, shall not affect the validity of the proceedings for the redemption of
any other Security.
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The notice of redemption to each such Holder shall specify the
principal amount of each Security held by such Holder to be redeemed, the date
fixed for redemption (the "Redemption Date"), the CUSIP numbers, the applicable
Redemption Price, the place or places of payment, that payment will be made upon
presentation and surrender of such Securities, that interest accrued to the date
fixed for redemption will be paid as specified in said notice and that on and
after said date interest thereon or on the portions thereof to be redeemed will
cease to accrue, and shall also specify the Conversion Price then in effect and
the date on which the right to convert such Securities or the portions thereof
to be redeemed will expire. In case any Security is to be redeemed in part only
the notice of redemption shall state the portion of the principal amount thereof
to be redeemed and shall state that on and after the date fixed for redemption,
upon surrender of such Security, a new Security or Securities in principal
amount equal to the unredeemed portion thereof will be issued.
The notice of redemption of Securities to be redeemed at the
option of the Issuer shall be given by the Issuer or, at the Issuer's request,
by the Trustee in the name and at the expense of the Issuer.
At least one Business Day prior to the Redemption Date
specified in the notice of redemption given as provided in this Section, the
Issuer will deposit with the Trustee or with one or more Paying Agents (or, if
the Issuer is acting as its own Paying Agent, set aside, segregate and hold in
trust as provided in Section 2.3) an amount of money suffi cient to redeem on
the Redemption Date all the Securities so called for redemption (other than
those theretofore surrendered for conversion pursuant to Article Twelve) at the
appropriate Redemption Price, together with accrued interest to and including
the date fixed for redemption. If any Security called for redemption is
converted pursuant hereto, any money deposited with the Trustee or any Paying
Agent or so segregated and held in trust for the redemption of such Security
shall be paid to the Issuer upon Issuer Order, or, if then held by the Issuer,
shall be discharged from such trust. If less than all the outstanding Securi-
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ties are to be redeemed, the Issuer will deliver to the Trustee at least 10 days
prior to the date of making of the notice of redemption an Officers' Certificate
stating the aggregate principal amount of Securities to be redeemed.
If less than all the Securities are to be redeemed, the
Trustee shall select, by lot, pro rata or by such other manner as it shall deem
appropriate and fair, Securities to be redeemed in whole or in part. Securities
may be redeemed in part in multiples equal to the minimum authorized
denomination for Securities or any multiple thereof. The Trustee shall promptly
notify the Issuer in writing of the Securities selected for redemption and, in
the case of any Securities selected for partial redemption, the principal amount
thereof to be redeemed. For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of Securities
shall relate, in the case of any Security redeemed or to be redeemed only in
part, to the portion of the principal amount of such Security which has been or
is to be redeemed. If any Security selected for partial redemption is
surrendered for conversion after such selection, the converted portion of such
Security shall be deemed (so far as may be) to be the portion selected for
redemption. Upon any redemption of less than all the Securities, for purposes of
the selection for redemption, the Issuer and the Trustee may treat as
Outstanding Securities surrendered for conversion during the period of 15 days
next preceding the mailing of a notice of redemption, and need not treat as
Outstanding any Security authenticated and delivered during such period in
exchange for the unconverted portion of any Security converted in part during
such period.
SECTION 11.3 Payment of Securities Called for Redemption. If
notice of redemption has been given as above provided, the Securities or
portions of Securities specified in such notice shall become due and payable on
the date and at the place stated in such notice at the applicable Redemption
Price, together with interest accrued to and including the date fixed for
redemption, and on and after said date (unless the Issuer shall default in the
payment of
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such Securities at the Redemption Price, together with interest accrued to said
date) interest on the Securities or portions of Securities so called for
redemption shall cease to accrue and such Securities shall cease from and after
the close of business on the Business Day immediately prior to the date fixed
for redemption to be convertible pursuant to the provisions of Article Twelve
or, except as provided in Sections 2.4 and 9.4, be entitled to any benefit or
security under this Indenture, and the Holders thereof shall have no right in
respect of such Securities except the right to receive the applicable Redemption
Price thereof and unpaid interest to and including the date fixed for
redemption. On presentation and surrender of such Securities at a place of
payment specified in said notice, said Securities or the specified portions
thereof shall be paid and redeemed by the Issuer at the applicable Redemption
Price, together with interest accrued thereon to and including the date fixed
for redemption, provided that any payment of interest becoming due on or prior
to the date fixed for redemption shall be payable to the Holders of such
Securities registered as such on the relevant record date subject to the terms
and provisions of Section 2.11 hereof.
If any Security called for redemption shall not be so paid
upon surrender thereof for redemption, the principal shall, until paid or duly
provided for, bear interest from the date fixed for redemption at the rate of
interest specified in such Security and such Security shall remain convertible
pursuant to the provisions of Article Twelve until the principal of such
Security shall have been paid or duly provided for.
Upon presentation of any Security redeemed in part only, the
Issuer shall execute and the Trustee shall authenticate and deliver to or on the
order of the Holder thereof, at the expense of the Issuer, a new Security or
Securities, of authorized denominations, in principal amount equal to the
unredeemed portion of the Security so presented.
SECTION 11.4 Exclusion of Certain Securities from Eligibility
for Selection for Redemption. Securities shall
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be excluded from eligibility for selection for redemption if they are identified
by registration and certificate number in a written statement signed by an
Officer of the Issuer and delivered to the Trustee at least 40 days prior to the
last date on which notice of redemption may be given as being owned of record
and beneficially by, and not pledged or hypothecated by either (a) the Issuer or
(b) an entity specifically identified in such Officers' Certificate directly or
indirectly controlling or controlled by or under direct or indirect common
control with the Issuer.
SECTION 11.5 Conversion Arrangement on Call for Redemption. In
connection with any redemption of the Securities, the Issuer may arrange for the
purchase and conversion of any Securities by an agreement with one or more
investment bankers or other purchasers (the "Purchasers") to purchase such
Securities by paying to the Trustee in trust for the Holders, on or before 11:00
a.m., Eastern Standard Time, on the Redemption Date, an amount not less than the
applicable Redemption Price, together with interest accrued and unpaid to the
Redemption Date, of such Securities. Notwithstanding anything to the contrary
contained in this Article, the obligation of the Issuer to pay the Redemption
Price, together with interest accrued and unpaid to the Redemption Date, shall
be deemed to be satisfied and discharged to the extent such amount is so paid by
such Purchasers. If such an agreement is entered into (a copy of which shall be
filed with the Trustee prior to the close of business on the second Business Day
immediately prior to the Redemption Date), any Securities called for redemption
that are not duly surrendered for conversion by the Holders thereof may, at the
option of the Issuer, be deemed, to the fullest extent permitted by law, and
consistent with any agreement or agreements with such Purchasers, to be acquired
by such Purchasers from such Holders and (notwithstanding anything to the
contrary contained in this Article) surrendered by such Purchasers for
conversion, all as of immediately prior to the close of business on the
Redemption Date (and the right to convert any such Securities shall be extended
through such time), subject to payment of the above amount as aforesaid. At the
written direction of the Issuer, the Trustee shall hold and
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dispose of any such amount paid to it by the Purchasers to the Holders in the
same manner as it would monies deposited with it by the Issuer for the
redemption of Securities. Without the Trustee's prior written consent, no
arrangement between the Issuer and such Purchasers for the purchase and
conversion of any Securities shall increase or otherwise affect any of the
powers, duties, responsibilities or obligations of the Trustee as set forth in
this Indenture, and the Issuer agrees to indemnify the Trustee from, and hold it
harmless against, any loss, liability or expense arising out of or in connection
with any such arrangement for the purchase and conversion of any Securities
between the Issuer and such Purchasers, including the costs and expenses,
including reasonable legal fees, incurred by the Trustee in the defense of any
claim or liability arising out of or in connection with the exercise or
performance of any of its powers, duties, responsibilities or obligations under
this Indenture.
ARTICLE TWELVE
CONVERSION OF SECURITIES
SECTION 12.1 Conversion Privilege. A Holder of a Security may
convert it into Class A Common Stock of the Issuer at any time prior to maturity
at the conversion price then in effect, except that, with respect to any
Security called for redemption, such conversion right shall terminate at the
close of business on the Business Day immediately preceding the Redemption Date,
Change in Control Repurchase Date or Repurchase Date (unless the Issuer shall
default in making the redemption or repurchase payment then due, in which case
the conversion right shall terminate on the date such default is cured and, if
applicable, the provisions of Section 13.2(d) are satisfied). The number of
shares of Class A Common Stock issuable upon conversion of a Security is
determined as follows: divide the principal amount to be converted by the
Conversion Price in effect on the Date of Conversion; round the result to the
nearest 1/100th of a share.
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The initial Conversion Price is stated in the fourth paragraph
of the reverse of the Securities and is subject to adjustment as provided in
this Article.
A Holder may convert a portion of a Security equal to $1,000
principal amount or any integral multiple thereof. Provisions of this Indenture
that apply to conversion of all of a Security also apply to conversion of a
portion of it.
SECTION 12.2 Exercise of Conversion Privilege. In order to
exercise the conversion privilege, the Holder of any Security to be converted
shall surrender such Security to the Issuer at any time during usual business
hours at its office or agency maintained for the purpose as provided in this
Indenture, accompanied by a fully executed written notice, in substantially the
form set forth on the reverse of the Security, that the Holder elects to convert
such Security or a stated portion thereof constituting a multiple of the minimum
authorized denomination thereof, and, if such Security is surrendered for
conversion during the period between the close of business on any record date
for such Security and the opening of business on the related interest payment
date (unless such Security shall have been called for redemption on a Redemption
Date or Change in Control Repurchase Date within such period or on such interest
payment date), accompanied also by payment of an amount equal to the interest
payable on such interest payment date on the portion of the principal amount of
the Security being surrendered for conversion. A Holder of any Security on a
record date for such Security who converts such Security on the related interest
payment date will receive the interest payable on such Security, and such
converting Holder need not include a payment for any such interest upon
surrender of such Security for conversion. Such notice shall also state the name
or names (with address) in which the certificate or certificates for shares of
Class A Common Stock shall be issued. Securities surrendered for conversion
shall (if so required by the Issuer or the Trustee) be duly endorsed by, or be
accompanied by a written instrument or instruments of transfer in form
satisfactory to the Issuer and the Trustee duly executed by, the Holder or his
attorney duly authorized in writing. As promptly as
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practicable after the receipt of such notice and the surrender of such Security
as aforesaid, the Issuer shall, subject to the provisions of Section 12.7, issue
and deliver at such office or agency to such Holder, or on his written order, a
certificate or certificates for the number of full shares of Class A Common
Stock issuable on such conversion of Securities in accordance with the
provisions of this Article and cash, as provided in Section 12.3, in respect of
any fraction of a share of Class A Common Stock otherwise issuable upon such
conversion. Such conversion shall be deemed to have been effected immediately
prior to the close of business on the date (herein called the "Date of
Conversion") on which such notice shall have been received by the Issuer and
such Security shall have been surrendered as aforesaid, and the Person or
Persons in whose name or names any certificate or certificates for shares of
Class A Common Stock shall be issuable upon such conversion shall be deemed to
have become on the Date of Conversion the holder or holders of record of the
shares represented thereby; provided, however, that any such surrender on any
date when the stock transfer books of the Issuer shall be closed shall
constitute the person or persons in whose name or names the certificate or
certificates for such shares are to be issued as the recordholder or holders
thereof for all purposes at the opening of business on the next succeeding day
on which such stock transfer books are open but such conversion shall
nevertheless be at the Conversion Price in effect at the close of business on
the date when such Security shall have been so surrendered with the conversion
notice. In the case of conversion of a portion, but less than all, of a
Security, the Issuer shall execute, and the Trustee shall authenticate and
deliver to the Holder thereof, at the expense of the Issuer, a Security or
Securities in the aggregate principal amount of the unconverted portion of the
Security surrendered. Except as otherwise expressly provided in this Indenture,
no payment or adjustment shall be made for interest accrued on any Security (or
portion thereof) converted or for dividends or distributions on any Class A
Common Stock issued upon conversion of any Security; provided, however, that in
the case of any Securities which are converted after the close of business on a
relevant record date and on or prior to the next succeeding interest
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payment date, installments of interest which are due and payable on the next
succeeding interest payment date shall be payable on such interest payment date
notwithstanding such conversion (unless such Security shall have been called for
redemption on a Redemption Date or Change in Control Repurchase Date after the
close of business on such record date and prior to the opening of business on
such interest payment date) and such interest (whether or not punctually paid or
duly provided for) shall be paid to the Holder of such Securities registered as
such at the close of business on the relevant record date according to their
terms. The Issuer's delivery of the fixed number of shares of Class A Common
Stock into which the Securities are convertible will be deemed to satisfy the
Issuer's obligation to pay the principal amount of the Securities and all
accrued interest that has not previously been (or is not simultaneously being)
paid. The Class A Common Stock is treated as issued first in payment of accrued
interest and then in payment of principal.
SECTION 12.3 Fractional Shares. Except as pro vided below, the
Issuer will not issue fractional shares of Class A Common Stock upon conversion
of Securities. In lieu thereof, in the sole discretion of the Board of
Directors, either (a) such fractional interest will be rounded up to the nearest
full share, or (b) an appropriate amount will be paid in cash by the Issuer,
unless payment in cash is prohibited by the terms of the Issuer's indebtedness,
in which case fractional shares may be issued. If the Issuer shall deliver cash,
such cash shall be in the amount of the fair market value (as determined by the
Board of Directors) of such fractional interest. If more than one Security shall
be surrendered for conversion at one time by the same Holder, the number of full
shares issuable upon conversion thereof shall be computed on the basis of the
aggregate number of Securities, or the specified portions thereof to be
converted, so surrendered.
SECTION 12.4 Adjustment of Conversion Price. The Conversion
Price shall be subject to adjustment from time to time as follows:
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(a) In case the Issuer shall (1) pay a dividend or make a
distribution on Class A Common Stock in shares of Class A Common Stock,
(2) subdivide its outstanding shares of Class A Common Stock into a
greater number of shares or (3) combine its outstanding shares of Class
A Common Stock into a smaller number of shares, the Conversion Price in
effect immediately prior to such action shall be adjusted as provided
below so that the Holder of any Security thereafter surrendered for
conversion shall be entitled to receive the number of shares of Class A
Common Stock which he would have been entitled to receive immediately
following such action had such Security been converted immediately
prior thereto. An adjustment made pursuant to this subsection (a) shall
become effective immedi ately, except as provided in subsection (e)
below, after the record date in the case of a dividend or distribution
and shall become effective immediately after the effective date in the
case of a subdivision or combination.
(b) In case the Issuer shall issue rights, warrants or options
to all holders of Class A Common Stock entitling them for a period
expiring within 45 days after the record date therefor to subscribe for
or purchase shares of Class A Common Stock at a price per share less
than the current market price per share (as determined pursuant to
subsection (d) below) of the Class A Common Stock on the record date
mentioned below, the Conversion Price shall be adjusted to a price,
computed to the nearest cent, so that the same shall equal the price
determined by multiplying:
(1) the Conversion Price in effect immediately prior
to the date of issuance of such rights, warrants or option by
a fraction, of which
(2) the numerator shall be (A) the number of shares
of Class A Common Stock outstanding on the date of issuance of
such rights, warrants or options immediately prior to such
issuance, plus (B) the number of shares which the aggregate
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offering price of the total number of shares so offered for
subscription or purchase would purchase at such current market
price (determined by multiplying such total number of shares
by the exercise price of such rights, warrants or options and
dividing the product so obtained by such current market
price), and of which
(3) the denominator shall be (A) the number of shares
of Class A Common Stock outstanding on the date of issuance of
such rights, warrants or options, immediately prior to such
issuance, plus (B) the number of additional shares of Class A
Common Stock which are so offered for subscription or
purchase.
Such adjustment shall become effective immedi ately, except as
provided in subsection (e) below, after the record date for the
determination of Holders entitled to receive such rights, warrants or
options.
(c) In case the Issuer shall distribute to all holders of
Class A Common Stock evidences of indebtedness, equity securities
(including equity interests in the Issuer's Subsidiaries) other than
Class A Common Stock or other assets (other than cash dividends), or
shall distribute to all holders of Class A Common Stock rights,
warrants or options to subscribe to securities (other than those
referred to in subsection (b) above and dividends and distributions in
connection with the liquidation, dissolution or winding up of the
Issuer), then in each such case the Conversion Price shall be adjusted
so that the same shall equal the price determined by multiplying the
Conversion Price in effect immediately prior to the date of such
distribution by a fraction of which the numerator shall be the current
market price per share (determined as provided in subsection (d) below)
of the Class A Common Stock on the record date mentioned below less the
then fair market value (as determined by the Board of Directors, whose
determination shall be conclusive evidence of such fair market value,
and
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described in a Board Resolution filed with the Trustee) of the portion
of the assets, evidences of indebtedness and equity securities so
distributed or of such subscription rights, warrants or options
applicable to one share of Class A Common Stock, and of which the
denominator shall be such current market price per share of the Class A
Common Stock. For the purposes of this subsection (c), in the event of
a distribution of shares of capital stock or other securities of any
Subsidiary as a dividend on shares of Class A Common Stock, the then
fair market value of the shares of other securities so distributed
shall be deemed to be the market value (determined as provided above)
of such shares or other securities. Such adjustment shall become
effective immediately, except as provided in subsection (e) below,
after the record date for the determination of stockholders entitled to
receive such distribution.
(d) For the purpose of any computation under subsections (b)
and (c) above, the current market price per share of Class A Common
Stock on any date shall be deemed to be the average of the Last Sale
Prices of a share of Class A Common Stock for the five consecutive
Trading Days commencing not more than 20 Trading Days before, and
ending not later than, the earlier of the date in question and the date
before the "ex" date with respect to the issuance or distribution
requiring such computation. For purposes of this paragraph, the term
"'ex' date", when used with respect to any issuance or distribution,
means the first date on which the Class A Common Stock trades regular
way on the principal national securities exchange on which the Class A
Common Stock is listed or admitted to trading (or if not so listed or
admitted on NASDAQ or a similar organization if NASDAQ is no longer
reporting trading information) without the right to receive such
issuance or distribution.
(e) In any case in which this Section shall require that an
adjustment be made immediately follow ing a record date, the Issuer may
elect to defer the
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effectiveness of such adjustment (but in no event until a date later
than the effective time of the event giving rise to such adjustment),
in which case the Issuer shall, with respect to any Security converted
after such record date and before such adjustment shall have become
effective (i) defer making any cash payment pursuant to Section 12.3 or
issuing to the Holder of such Security the number of shares of Class A
Common Stock and other capital stock of the Issuer issuable upon such
conversion in excess of the number of shares of Class A Common Stock
and other capital stock of the Issuer issuable thereupon only on the
basis of the Conversion Price prior to adjustment, and (ii) not later
than five Business Days after such adjustment shall have become
effective, pay to such Holder the appropriate cash payment pursuant to
Section 12.3 and issue to such Holder the additional shares of Class A
Common Stock and other capital stock of the Issuer issuable on such
conversion.
(f) No adjustment in the Conversion Price shall be required if
Securityholders are to participate in the transaction on a basis and
with notice that the Board of Directors determines to be fair and
appropri ate in light of the basis and notice on which holders of Class
A Common Stock participate in the transaction. In addition, no
adjustment in the Conversion Price shall be required unless such
adjustment would require an increase or decrease of at least 1% in the
Conversion Price; provided that any adjustments which by reason of this
subsection (f) are not required to be made shall be carried forward and
taken into account in any subsequent adjustment. All calculations under
this Article shall be made to the nearest cent or to the nearest
one-hundredth of a share, as the case may be.
(g) Whenever the Conversion Price is adjusted as herein
provided, the Issuer shall promptly (i) file with the Trustee and each
conversion agent an Officers' Certificate setting forth the Conversion
Price after such adjustment and setting forth in reasonable detail the
facts requiring such adjustment and the
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calculations on which the adjustment is based, which certificate shall
be conclusive evidence of the correctness of such adjustment and which
shall be made available by the Trustee to the Holders of Securities for
inspection thereof, (ii) mail or cause to be mailed a notice of such
adjustment, setting forth the adjusted Conversion Price and the date on
which such adjustment became or becomes effective, to each Holder of
Securities at his address as the same appears on the registry books of
the Issuer.
To the extent permitted by law, the Issuer from time to time
may reduce the Conversion Price by any amount for any period of at least 20
days, if the Board of Directors has made a determination that such reduction
would be in the best interests of the Issuer, which determination shall be
conclusive. In such case, the Issuer shall give at least 15 days' notice of the
reduction. In addition, at its option, the Issuer may make such reduction in the
Conversion Price as the Board of Directors deems advisable to avoid or diminish
any income tax to holders of Class A Common Stock resulting from any dividend or
distribution of stock (or rights to acquire stock) or from any event treated as
such for income tax purposes.
SECTION 12.5 Continuation of Conversion Privilege in Case of
Reclassification, Reorganization, Change, Merger, Consolidation or Sale of
Assets. If any transaction shall occur, including without limitation (i) any
recapitalization or reclassification of shares of Class A Common Stock (other
than a change in par value, or from par value to no par value, or from no par
value to par value, or as a result of a subdivision or combination of the Class
A Common Stock), (ii) any consolidation or merger of the Issuer with or into
another person or any merger of another person into the Issuer (other than a
consolidation or merger that does not result in a reclassification, conversion,
exchange or cancellation of Class A Common Stock), (iii) any sale or transfer of
all or substantially all of the assets of the Issuer, or (iv) any compulsory
share exchange, pursuant to any of which holders of Class A Common Stock shall
be entitled to receive other securities, cash or other
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property, then appropriate provision shall be made so that the Holder of each
Security then Outstanding shall have the right thereafter to convert such
Security only into the kind and amount of the securities, cash or other property
that would have been receivable upon such recapitalization, reclassification,
consolidation, merger, sale, transfer or share exchange by a holder of the
number of shares of Class A Common Stock issuable upon conversion of such
Security immediately prior to such recapitalization, reclassification,
consolidation, merger, sale, transfer or share exchange, after giving effect to
any adjustment in the conversion price in accordance with this Indenture. The
company formed by such consolidation or resulting from such merger or that
acquires such assets or that acquires the Issuer's shares, as the case may be,
shall make provisions in its certificate of incorporation or other constituent
document to establish such right. Such certificate of incorporation or other
constituent document shall provide for adjustments that, for events subsequent
to the effective date of such certificate of incorporation or other constituent
documents, shall be as nearly equivalent as may be practicable to the relevant
adjustments provided for in Section 12.4 and in this Section.
SECTION 12.6 Notice of Certain Events. In case:
(a) the issuer shall declare a dividend (or any other
distribution) payable to the holders of Class A Common Stock (other
than cash dividends and dividends payable in Class A Common Stock); or
(b) the Issuer shall authorize the granting to the holders of
Class A Common Stock of rights, warrants or options to subscribe for or
purchase any shares of stock of any class or of any other rights,
warrants or options; or
(c) the Issuer shall authorize any reclassifica tion or change
of the Class A Common Stock (other than a subdivision or combination of
its outstanding shares of Class A Common Stock or a change in par
value, or from par value to no par value, or from no par value to
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par value), or any consolidation or merger to which the Issuer is a
party and for which approval of any stock holders of the Issuer is
required, or the sale or conveyance of all or substantially all the
property or business of the Issuer; or
(d) there shall be proposed any voluntary or involuntary
dissolution, liquidation or winding-up of the Issuer;
then, the Issuer shall cause to be filed with the Trustee, and, if other than
the Corporate Trust Office of the Trustee, at the office or agency maintained
for the purpose of conversion of the Securities as provided in Section 2.3, and
shall cause to be mailed to each Holder of Securities, at his address as it
shall appear on the registry books of the Issuer, as promptly as possible but in
any event at least 20 days before the date hereinafter specified (or the earlier
of the dates hereinafter specified, in the event that more than one date is
specified), a notice stating the date on which (1) a record is expected to be
taken for the purpose of such dividend, distribution, rights, warrants or
options, or if a record is not to be taken, the date as of which the holders of
Class A Common Stock of record to be entitled to such dividend, distribution,
rights or warrants are to be determined, or (2) such reclassification, change,
consolidation, merger, sale, transfer, conveyance, dissolution, liquidation or
winding-up is expected to become effective and the date, if any is to be fixed,
as of which it is expected that holders of Class A Common Stock of record shall
be entitled to exchange their shares of Class A Common Stock for securities or
other property deliverable upon such reclassification, change, consolidation,
merger, sale, transfer, conveyance, dissolution, liquidation or winding-up.
SECTION 12.7 Taxes on Conversion. The issuance and delivery of
certificates for shares of Class A Common Stock on conversion of Securities
shall be made without charge to the converting Holder of Securities for such
certificates or for any documentary, stamp or similar issue or transfer taxes
payable to the United States of America or
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any political subdivision or taxing authority thereof in respect of the issuance
or delivery of such certificates; provided, however, that the Issuer shall not
be required to pay any tax which may be payable in respect of any transfer
involved in the issuance of certificates for shares of Class A Common Stock, and
no such issue or delivery shall be made unless and until the Person requesting
such issue or delivery has paid to the Issuer the amount of any such tax or has
established, to the satisfaction of the Issuer, that such tax has been paid.
SECTION 12.8 Issuer to Provide Class A Common Stock. The
Issuer covenants that it will reserve and keep available, free from preemptive
rights, out of its authorized but unissued shares, solely for the purpose of
issue upon conversion of Securities as herein provided, sufficient shares of
Class A Common Stock to provide for the conversion of the Securities from time
to time as such Securities are presented for conversion.
If any shares of Class A Common Stock to be reserved for the
purpose of conversion of Securities hereunder require registration with or
approval of any governmental authority under any Federal or State law before
such shares may be validly issued or delivered upon conversion, then the Issuer
covenants that it will in good faith and as expeditiously as possible endeavor
to secure such registration or approval, as the case may be; provided, however,
that nothing in this Section shall be deemed to affect in any way the
obligations of the Issuer to convert Securities into Class A Common Stock as
provided in this Article.
Before taking any action which would cause an adjustment
reducing the Conversion Price below the then par value, if any, of the Class A
Common Stock, the Issuer will take all corporate action which may, in the
Opinion of Counsel, be necessary in order that the Issuer may validly and
legally issue fully paid and non-assessable shares of Class A Common Stock at
such adjusted Conversion Price.
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The Issuer covenants that all shares of Class A Common Stock
which may be issued upon conversion of Securities will upon issue be duly
authorized, validly issued and fully paid and non-assessable by the Issuer and
free of preemptive rights and of any lien or adverse claim and that, if the
Class A Common Stock is then listed on any national securities exchange or
quoted on NASDAQ, the shares of Class A Common Stock which may be issued upon
conversion of Securities will be similarly listed or quoted at the time of such
issuance.
The Issuer covenants that, upon conversion of Securities as
herein provided, there will be credited to Class A Common Stock par capital from
the consideration for which the shares of Class A Common Stock issuable upon
such conversion are issued an amount per share of Class A Common Stock so issued
as determined by the Board of Directors, which amount shall not be less than the
amount required by law and by the Issuer's certificate of incorporation, as
amended, as in effect on the date of such conversion. For the purposes of this
covenant the net proceeds received by the Issuer from the issuance and sale of
the Securities converted, less any cash conversion, shall be deemed to be the
amount of consideration for which the shares of Class A Common Stock issuable
upon such conversion are issued.
SECTION 12.9 Disclaimer of Responsibility for Certain Matters.
Neither the Trustee nor any Conversion Agent or agent of the Trustee shall at
any time be under any duty or responsibility to any Holder of Securities to
determine whether any facts exist which may require any adjustment of the
Conversion Price, or with respect to the Officers' Certificate referred to in
Section 12.4(g), or with respect to the nature or extent of any such adjustment
when made, or with respect to the method employed, or herein or in any
supplemental indenture provided to be employed, in making the same. Neither the
Trustee nor any Conversion Agent nor any agent of the Trustee shall be
accountable with respect to the validity, registration, listing, or value (or
the kind or amount) of any shares of Class A Common Stock, or of any securities
or cash or other property, which may at any time be issued or delivered upon the
conversion of any
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Security; and neither the Trustee nor any agent of the Trustee nor any
Conversion Agent makes any representation with respect thereto. Neither the
Trustee nor any Conversion Agent nor any agent of the Trustee shall be
responsible for any failure of the Issuer to make any cash payment or to issue,
register the transfer of or deliver any shares of Class A Common Stock or stock
certificates or other securities or property upon the surrender of any Security
for the purpose of conversion or, subject to Sections 5.1 and 5.2, to comply
with any of the covenants of the Issuer contained in this Article.
SECTION 12.10 Return of Funds Deposited for Redemption of
Converted Securities. Any funds which at any time shall have been deposited by
the Issuer or on its behalf with the Trustee or any other Paying Agent for the
purpose of paying the principal of and interest on any of the Securities and
which shall not be required for such purposes because of the conversion of such
Securities, as provided in this Article, shall after such conversion, upon the
written request of the Issuer, be repaid to the Issuer by the Trustee or such
other Paying Agent.
ARTICLE THIRTEEN
RIGHT TO REQUIRE REDEMPTION UPON CHANGE IN CONTROL
SECTION 13.1 Right to Require Redemption. If at any time there
shall occur any Change in Control (as defined below) of the Issuer, then each
Holder shall have the right, at such Holder's option, to require the Issuer to
redeem, and upon the exercise of such right the Issuer shall redeem, all or any
part of such Holder's Securities that is $1,000 in principal amount or any
integral multiple thereof, on the date (the "Change in Control Repurchase Date")
that is 45 days after the date of the Issuer Notice (as defined below) at a
price in cash equal to the principal amount thereof, and accrued and unpaid
interest to the Repurchase Date (the "Change in Control Repurchase Price").
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SECTION 13.2 Notices; Method of Exercising Redemption Right,
etc. (a) Unless the Issuer shall have theretofore called for redemption all the
Securities then Outstanding pursuant to Article Eleven, on or before the 30th
day after the occurrence of a Change in Control, the Issuer or, at the request
of the Issuer, the Trustee, shall forward to all holders of record of the
Securities a notice (the "Issuer Notice") of the occurrence of the Change in
Control and of the redemption right set forth herein arising as a result thereof
in the manner provided in Section 10.4 hereof. The Issuer shall also deliver a
copy of the Issuer Notice to the Trustee prior to or promptly after the mailing
of such Issuer Notice.
Each Issuer Notice shall state:
(1) the Change in Control Repurchase Date;
(2) the date by which the Securities with respect to which
such right is being exercised and the irrevocable written notice
referred to in Section 13.2(b) must be delivered to the Trustee;
(3) the Change in Control Repurchase Price, including and
accrued interest, if any;
(4) a description of the procedure which a Holder must follow
to exercise a redemption right including a form of the irrevocable
written notice referred to in Section 13.2(b); and
(5) the Conversion Price then in effect, the date on which the
right to convert the principal amount of the Securities to be redeemed
will terminate and the place or places where such Securities may be
surrendered for conversion.
No failure of the Issuer to give the Issuer Notice or any
defect therein shall limit any Holder's right to exercise a redemption right or
affect the validity of the proceedings for the redemption of Securities.
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(b) To exercise a redemption right, a Holder shall deliver to
the Trustee on or before the 30th day after the date of the Issuer Notice (i)
irrevocable written notice of the Holder's exercise of such right, which notice
shall set forth the name of the Holder, the amount of the Securities to be
redeemed (which shall be in any authorized denomination), and a statement that
an election to exercise the redemption right is being made thereby, and (ii) the
Securities with respect to which the redemption right is being exercised, duly
endorsed for transfer to the Issuer. Securities held by a securities depositary
may be delivered in such other manner as may be agreed to by such securities
depositary and the Issuer. Such written notice shall be irrevocable. Subject to
the provisions of subsection (d) below, Securities surrendered for redemption
together with such irrevocable written notice shall cease to be convertible from
the date of delivery of such notice. If the Change in Control Repurchase Date
falls after the record date and before the following interest payment date, any
Securities to be redeemed must be accompanied by payment of an amount equal to
the interest thereon which the registered Holder thereof is to receive on such
interest payment date, and, notwithstanding such redemption, such interest
payment will be made by the Issuer to the registered Holder thereof on the
applicable record date.
(c) In the event a redemption right shall be exercised in
accordance with the terms hereof, the Issuer shall pay or cause to be paid the
Change in Control Repurchase Price in cash, to the Holder on the Change in
Control Repurchase Date. The principal of and accrued interest on Securities
payable at the Change in Control Repurchase Price on the Change in Control
Repurchase Date shall be considered to be principal due on such date for
purposes of this Indenture, including Article Four.
(d) If any Security surrendered for redemption shall not be so
redeemed on the Change in Control Repurchase Date, such Security shall be
convertible at any time from the Change in Control Repurchase Date until
redeemed and, until redeemed, continue to bear interest to the extent permitted
by applicable law from the Change in Control
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Repurchase Date at the same rate borne by such Security. The Issuer shall pay to
the Holder of such Security the additional amount arising as a result of the
provisions of this Section 13.2(d) at the same time that it pays the Change in
Control Repurchase Price, and if applicable such Security shall remain
convertible into Class A Common Stock until the Change in Control Repurchase
Price plus any additional amounts owing on such Security shall have been paid or
duly provided for.
(e) Any Security which is to be redeemed only in part shall be
surrendered at any office or agency of the Issuer designated for that purpose
pursuant to Section 2.3 (with, if the Issuer or the Trustee so requires, due
endorsement by, or a written instrument of transfer in form satisfactory to the
Issuer and the Trustee duly executed by, the Holder thereof or his attorney duly
authorized in writing), and the Issuer shall execute, and the Trustee shall
authenticate and deliver to the Holder of such Security without service charge,
a new Security or Securities, of any authorized denomination as requested by
such Holder, in aggregate principal amount equal to and in exchange for the
unredeemed portion of the Security so surrendered.
SECTION 13.3 Definition of Change in Control. A "Change in
Control" is deemed to have occurred when (i) any person or group other than one
or more of the Principal Stockholders (as hereinafter defined) or any person
employed by the Issuer in a management capacity as of February 9, 2000 (or any
group of which any of them is a member, collectively, a "Permitted Owner"),
acquires beneficial ownership of, directly or indirectly, shares of capital
stock of the Issuer sufficient to entitle such person to exercise more than 50%
of the total voting power of all classes of capital stock entitled to vote in
elections of directors (whether by means of an exchange offer, liquidation,
tender offer, consolidation, merger, combination, reclassification,
recapitalization or otherwise), or (ii) the Issuer sells, leases, exchanges or
transfers (in one transaction or a series of related transactions) all or
substantially all of its assets to any
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person or group (in each instance, as the term "person" or "group" is used in
Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934, as
amended), other than one or more Permitted Owners, provided that any transaction
described in (i) or (ii) (whether or not in any such case to or involving a
Permitted Owner) that results in the Class A Common Stock (or a successor common
equity security into which the Securities become convertible pursuant to Section
12.4) no longer being listed on a national securities exchange or traded on
NASDAQ shall also be considered a Change in Control. "Principal Stockholders"
means Steven B. Dodge, Thomas H. Stoner, Hicks, Muse, Tate & Furst Incorporated,
Cox Telecom Towers, Inc. and Clear Channel Communications, Inc. and their
Affiliates.
SECTION 13.4 Limitation on Right to Require Redemption.
Notwithstanding anything herein to the contrary, no Holder shall have any right
to require redemption pursuant to this Article if either (i) the Last Sale Price
(or if on any such Trading Day the Class A Common Stock is not quoted by any
organization referred to in the definition of Last Sale Price, the fair value of
the Class A Common Stock on such day, as conclusively determined by the Board of
Directors) on any five Trading Days during the 10 Trading Day period immediately
preceding the date of the Change in Control shall equal or exceed 105% of the
Conversion Price in effect on such Trading Days or (ii) with respect to any
transaction described in clause (i) of Section 13.3, or any transaction
described in clause (ii) of Section 13.3 (so long as such transaction is
accompanied by or immediately followed by the complete liquidation and
dissolution of the Issuer), all the consideration to be paid for the Class A
Common Stock or the assets, as the case may be, in the transaction or
transactions constituting the Change in Control (A) has an aggregate fair market
value of at least 105% of the Conversion Price with respect to such Holder's
Securities in effect immediately prior to the closing of such transaction and
(B) consists of cash, securities traded on a national securities exchange or
quoted on NASDAQ or a combination of cash and securities.
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ARTICLE FOURTEEN
REPURCHASE OF SECURITIES AT OPTION OF THE HOLDER
SECTION 14.1 General. Securities shall be purchased by the
Issuer as of February 20, 2007 (the "Repurchase Date"), at the repurchase price
(the "Repurchase Price") set forth in the form of Security attached as Exhibit A
hereto, at the option of the Holder thereof, upon:
(1) delivery to the Paying Agent, by the Holder of a written
notice of purchase (the "Repurchase Notice") at any time from the
opening of business on the date that is 20 Business Days prior to the
Repurchase Date until the close of business on the Repurchase Date
stating:
(A) the certificate number of the Security which the
Holder will deliver to be purchased,
(B) the portion of the principal amount of the
Security which the Holder will deliver to be purchased, which
portion must be $1,000 or an integral multiple thereof,
(C) that such Security shall be purchased as of the
Repurchase Date pursuant to the terms and conditions specified
in the Securities and in this Indenture, and
(D) in the event the Issuer elects, pursuant to
Section 14.2, to pay the Repurchase Price, in whole or in
part, in shares of Class A Common Stock but such portion of
the Repurchase Price shall ultimately be payable to such
Holder entirely in cash because any of the conditions to
payment of the Repurchase Price in Class A Common Stock is not
satisfied prior to the close of business on the Repurchase
Date, as set forth in Section 14.4, whether such Holder elects
(i) to withdraw such Repurchase Notice as to some or all of
the Securities to which such Repurchase Notice
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relates (stating the principal amount and certificate numbers
of the Securities as to which such withdrawal shall relate),
or (ii) to receive cash in respect of the entire Repurchase
Price for all Securities (or portions thereof) to which such
Repurchase Notice relates; and
(2) delivery of such Security to the Paying Agent prior to, on
or after the Repurchase Date (together with all necessary endorsements)
at the offices of the Paying Agent, such delivery being a condition to
receipt by the Holder of the Repurchase Price therefor; provided,
however, that the Repurchase Price shall be so paid pursuant to this
Article only if the Security so delivered to the Trustee shall conform
in all respects to the description thereof in the related Repurchase
Notice.
If a Holder, in such Holder's Repurchase Notice and in any
written notice of withdrawal delivered by such Holder pursuant to the terms of
Section 14.9, fails to indicate such Holder's choice with respect to the
election set forth in clause (D) of Section 14.1(1), such Holder shall be deemed
to have elected to receive cash in respect of the Repurchase Price for all
Securities subject to such Repurchase Notice in the circumstances set forth in
such clause (D).
The Issuer shall purchase from the Holder thereof, pursuant to
this Article, a portion of a Security if the principal amount of such portion is
$1,000 or an integral multiple of $1,000. Provisions of this Indenture that
apply to the purchase of all of a Security also apply to the purchase of such
portion of such Security.
Any purchase by the Issuer contemplated pursuant to the
provisions of this Article shall be consummated by the delivery of the
consideration to be received by the Holder promptly following the later of the
Repurchase Date and the time of delivery of the Security.
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Notwithstanding anything herein to the contrary, any Holder
delivering to the Paying Agent a Repurchase Notice contemplated by this Section
14.1 shall have the right to withdraw such Repurchase Notice at any time prior
to the close of business on the Repurchase Date by delivery of a written notice
of withdrawal to the Paying Agent in accordance with Section 14.9.
The Paying Agent shall promptly notify the Issuer of the
receipt by it of any Repurchase Notice or written notice of withdrawal thereof.
SECTION 14.2 Issuer's Right to Elect Manner of Payment of
Repurchase Price. The Securities to be purchased pursuant to Section 14.1 may be
paid for, at the election of the Issuer, in cash or Class A Common Stock, or in
any combination of cash and Class A Common Stock, subject to the conditions set
forth in Sections 14.3 and 14.4. The Issuer shall designate, in the Issuer
Repurchase Notice delivered pursuant to Section 14.5, whether the Issuer will
purchase the Securities for cash or Class A Common Stock, or, if a combination
thereof, the percentages of the Repurchase Price of Securities in respect of
which it will pay in cash or Class A Common Stock; provided that the Issuer will
pay cash for fractional interests in Class A Common Stock unless payment in cash
is prohibited by the terms of the Issuer's indebtedness, in which case
fractional shares may be issued. For purposes of determining the existence of
potential fractional interests, all Securities subject to purchase by the Issuer
held by a Holder shall be considered together (no matter how many separate
certificates are to be presented). Each Holder whose Securities are purchased
pursuant to this Article shall receive the same percentage of cash or Class A
Common Stock in payment of the Repurchase Price for such Securities, except (i)
as provided in Section 14.4 with regard to the payment of cash in lieu of
fractional shares of Class A Common Stock and (ii) in the event that the Issuer
is unable to purchase the Securities of a Holder or Holders for Class A Common
Stock because any necessary qualifications or registrations of the Class A
Common Stock under applicable state securities laws cannot be obtained, the
Issuer may purchase the Securities of such Holder or
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Holders for cash. The Issuer may not change its election with respect to the
consideration (or components or percentages of components thereof) to be paid
once the Issuer has given its Issuer Repurchase Notice to Securityholders except
pursuant to this Section 14.2 or pursuant to Section 14.4 in the event of a
failure to satisfy, prior to the close of business on the Repurchase Date, any
condition to the payment of the Repurchase Price, in whole or in part, in Class
A Common Stock.
At least three Business Days before the Issuer Repurchase
Notice Date, the Issuer shall deliver an Officers' Certificate to the Trustee
specifying:
(1) the manner of payment selected by the Issuer,
(2) the information required by Section 14.5,
(3) if the Issuer elects to pay the Repurchase Price, or a
specified percentage thereof, in Class A Common Stock, that the
conditions to such manner of payment set forth in Section 14.4 have
been or will be complied with, and
(4) whether the Issuer desires the Trustee to give the Issuer
Repurchase Notice required by Section 14.5.
SECTION 14.3 Repurchase with Cash. On the Repurchase Date, at
the option of the Issuer, the Repurchase Price of Securities in respect of which
a Repurchase Notice pursuant to Section 14.1 has been given, or a specified
percentage thereof, may be paid by the Issuer with cash equal to the aggregate
Repurchase Price of such Securities. If the Issuer elects to purchase Securities
with cash, the Issuer Repurchase Notice, as provided in Section 14.5, shall be
sent to Holders (and the Depositary shall distribute to beneficial owners as
required by applicable law) not less than 20 Business Days prior to the
Repurchase Date (the "Issuer Repurchase Notice Date").
SECTION 14.4 Payment by Issuance of Class A Common Stock. On
the Repurchase Date, at the option of the
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Issuer, the Repurchase Price of Securities in respect of which a Repurchase
Notice pursuant to Section 14.1 has been given, or a specified percentage
thereof, may be paid by the Issuer by the issuance of a number of shares of
Class A Common Stock equal to the quotient obtained by dividing (i) the amount
of cash to which the Securityholders would have been entitled had the Issuer
elected to pay all or such specified percentage, as the case may be, of the
Repurchase Price of such Securities in cash by (ii) the Market Price of a share
of Class A Common Stock, subject to the next succeeding paragraph.
The Issuer will not issue a fractional share of Class A Common
Stock in payment of the Repurchase Price. Instead the Issuer will pay cash for
the current market value of the fractional share. The current market value of a
fraction of a share shall be determined by multiplying the Market Price by such
fraction and rounding the product to the nearest whole cent. It is understood
that if a Holder elects to have more than one Security purchased, the number of
shares of Class A Common Stock shall be based on the aggregate amount of
Securities to be purchased.
If the Issuer elects to purchase the Securities by the
issuance of shares of Class A Common Stock, the Issuer Repurchase Notice, as
provided in Section 14.5, shall be sent to the Holders (and the Depositary shall
distribute to beneficial owners as required by applicable law) not later than
the Issuer Repurchase Notice Date.
The Issuer's right to exercise its election to purchase the
Securities pursuant to this Article through the issuance of shares of Class A
Common Stock shall be conditioned upon:
(1) the Issuer's not having given its Issuer Repurchase Notice
of an election to pay entirely in cash and its giving a timely Issuer
Repurchase Notice of election to purchase all or a specified percentage
of the Securities with Class A Common Stock as provided herein;
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(2) the registration of the shares of Class A Common Stock to
be issued in respect of the payment of the Repurchase Price under the
Securities Act or the Exchange Act, in each case, if required;
(3) any necessary qualification or registration under
applicable state securities laws or the availability of an exemption
from such qualification and registration; and
(4) the receipt by the Trustee of an Officers' Certificate and
an Opinion of Counsel each stating that (A) the terms of the issuance
of the Class A Common Stock are in conformity with this Indenture and
(B) the shares of Class A Common Stock to be issued by the Issuer in
payment of the Repurchase Price in respect of Securities have been duly
authorized and, when issued and delivered pursuant to the terms of this
Indenture in payment of the Repurchase Price in respect of the
Securities, will be validly issued, fully paid and non- assessable and,
to the best of such counsel's knowledge, free from preemptive rights,
and, in the case of such Officers' Certificate, stating that conditions
(1), (2) and (3) above and the information publication requirement set
forth in the second sentence of the next succeeding paragraph have been
satisfied and, in the case of such Opinion of Counsel, stating that
conditions (2) and (3) above have been satisfied.
Such Officers' Certificate shall also set forth the number of
shares of Class A Common Stock to be issued for each $1,000 principal
amount of Securities and the Last Sale Price of a share of Class A
Common Stock on each Trading Day during the period commencing on the
first Trading Day of the period during which the Market Price is
calculated and ending on the Repurchase Date. The Issuer may pay the
Repurchase Price (or any portion thereof) in Class A Common Stock only
if the information necessary to calculate the Market Price is published
in a daily newspaper of national circulation. If the foregoing
conditions are not satisfied with
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respect to a Holder or Holders prior to the close of business on the
Repurchase Date and the Issuer has elected to purchase the Securities
pursuant to this Article through the issuance of shares of Class A
Common Stock, the Issuer shall pay the entire Repurchase Price of the
Securities of such Holder or Holders in cash.
The "Market Price" means the average of the Last Sale Prices
of the Class A Common Stock for the five Trading Day period ending on
(if the third Business Day prior to the Repurchase Date is a Trading
Day, or if not, then on the last Trading Day prior to) the third
Business Day prior to the Repurchase Date, appropriately adjusted to
take into account the occurrence, during the period commencing on the
first of such Trading Days during such five Trading Day period and
ending on the Repurchase Date, of any event described in Sections
12.4(a), 12.4(b) or 12.4(c), subject, however, to the conditions set
forth in Section 12.4(f).
SECTION 14.5 Notice of Election. The Issuer's notice of
election to purchase with cash or Class A Common Stock or any combination
thereof shall be sent to the Holders (and to beneficial owners as required by
applicable law) in the manner provided in Section 10.4 at the time specified in
Section 14.3 or 14.4, as applicable (the "Issuer Repurchase Notice"). Such
Issuer Repurchase Notice shall state the manner of payment elected and shall
contain the following information:
In the event the Issuer has elected to pay the Repurchase
Price (or a specified percentage thereof) with Class A Common Stock,
the Issuer Repurchase Notice shall:
(1) state that each Holder will receive Class A
Common Stock with a Market Price determined as of a specified
date prior to the Repurchase Date equal to such specified
percentage of the Repurchase Price of the Securities held by
such
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Holder (except any cash amount to be paid in lieu of
fractional shares);
(2) set forth the method of calculating the Market
Price of the Class A Common Stock as required by Section 14.4;
and
(3) state that, because the Market Price of Class A
Common Stock will be determined prior to the Repurchase Date,
Holders will bear the market risk with respect to the value of
the Class A Common Stock to be received from the date such
Market Price is determined to the Repurchase Date.
In any case, each Issuer Repurchase Notice shall include a
form of Repurchase Notice to be completed by a Securityholder and shall
state:
(A) the Repurchase Price and the Conversion Price;
(B) the name and address of the Paying Agent and the
Conversion Agent;
(C) that Securities as to which a Repurchase Notice
has been given may be converted pursuant to Article Twelve
only if the applicable Repurchase Notice has been withdrawn in
accordance with the terms of this Indenture;
(D) that Securities must be surrendered to the Paying
Agent to collect payment;
(E) that the Repurchase Price for any security as to
which a Repurchase Notice has been given and not withdrawn
will be paid promptly following the later of the Repurchase
Date and the time of surrender of such Security as described
in (D) above;
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(F) the procedures the Holder must follow to exercise
rights under this Article and a brief description of those
rights;
(G) briefly, the conversion rights of the Securities;
and
(H) the procedures for withdrawing a Repurchase
Notice (including, without limitation, for a conditional
withdrawal pursuant to the terms of Section 14.1(1)(D) or
Section 14.9).
At the Issuer's request, the Trustee shall give such Issuer
Repurchase Notice in the Issuer's name and at the Issuer's expense; provided,
however, that, in all cases, the text of such Issuer Repurchase Notice shall be
prepared by the Issuer.
Upon determination of the actual number of shares of Class A
Common Stock to be issued for each $1,000 principal amount of Securities, the
Issuer will publish such determination in a newspaper of national circulation.
SECTION 14.6 Covenants of the Issuer. All shares of Class A
Common Stock delivered upon purchase of the Securities shall be newly issued
shares or treasury shares, shall be duly authorized, validly issued, fully paid
and non-assessable by the Issuer and shall be free of preemptive rights of any
lien or adverse claim.
If the Class A Common Stock is then listed on any national
securities exchange or quoted on NASDAQ, the shares of Class A Common Stock to
be issued to purchase Securities will be similarly listed or quoted at the time
of such issuance.
SECTION 14.7 Procedure upon Repurchase. The Issuer shall
deposit cash (in respect of a cash purchase under Section 14.3 or for fractional
interests, as applicable) or shares of Class A Common Stock, or a combination
thereof, as applicable, at the time and in the manner as provided in Section
14.10, sufficient to pay the
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aggregate Repurchase Price of all Securities to be purchased on the Repurchase
Date pursuant to this Article. As soon as practicable after the Repurchase Date,
the Issuer shall deliver to each Holder entitled to receive Class A Common Stock
through the Paying Agent a certificate for the number of full shares of Class A
Common Stock issuable in payment of the Repurchase Price and cash in lieu of any
fractional interests. The Person in whose name the certificate for Class A
Common Stock is registered shall be treated as a holder of record of shares of
Class A Common Stock on the Business Day following the Repurchase Date. Subject
to Section 14.4, no payment or adjustment will be made for dividends on the
Class A Common Stock the record date for which occurred on or prior to the
Repurchase Date.
SECTION 14.8 Taxes. If a Holder of a Security is paid in Class
A Common Stock, the Issuer shall pay any documentary, stamp or similar issue or
transfer taxes payable to the United Sates of America or any political
subdivision or taxing authority thereof in respect of the issuance or delivery
of such Class A Common Stock; provided, however, that the Issuer shall not be
required to pay any tax which may be payable in respect of any transfer involved
in the issuance of shares of Class A Common Stock, and no such issue or delivery
shall be made unless and until the Person requesting such issue or delivery has
paid to the Issuer or the Paying Agent the amount of any such tax or has
established, to the satisfaction of the Issuer or the Paying Agent, that such
tax has been paid. Nothing herein shall preclude any income tax withholding
required by law or regulations.
SECTION 14.9 Effect of Repurchase Notice. Upon receipt by the
Paying Agent of the Repurchase Notice, the Holder of the Security in respect of
which such Repurchase Notice was given shall (unless such Repurchase Notice is
withdrawn as specified in the following two paragraphs) thereafter be entitled
to receive solely the Repurchase Price with respect to such Security. The
Repurchase Price shall be paid to such Holder, subject to receipt of funds
and/or securities by the Paying Agent, promptly following the later of (x) the
Repurchase Date with respect to such
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Security (provided the conditions in Section 14.1 have been satisfied) and (y)
the time of delivery of such Security to the Paying Agent by the Holder thereof
in the manner required by Section 14.1. Securities in respect of which a
Repurchase Notice has been given by the Holder thereof may not be converted
pursuant to Article Twelve on or after the date of the delivery of such
Repurchase Notice unless such Repurchase Notice has first been validly withdrawn
as specified in the following two paragraphs. The principal of Securities
payable as the Repurchase Price on the Repurchase Date shall be considered to be
principal due on such date for purposes of this Indenture, including Article
Four.
A Repurchase Notice may be withdrawn by means of a written
notice of withdrawal delivered to the office of the Paying Agent in accordance
with the Repurchase Notice at any time prior to the close of business on the
Repurchase Date specifying:
(1) the certificate number of the Security in respect of which
such notice of withdrawal is being submitted;
(2) the principal amount of the Security with respect to which
such notice of withdrawal is being submitted; and
(3) the principal amount, if any, of such Security which
remains subject to the original Repurchase Notice and which has been or
will be delivered for purchase by the Issuer.
A written notice of withdrawal of a Repurchase Notice may be
in the form set forth in the preceding paragraph or may be in the form of (i) a
conditional withdrawal contained in a Repurchase Notice pursuant to the terms of
Section 14.1(1)(D) or (ii) a conditional withdrawal containing the information
set forth in Section 14.1(1)(D) and the preceding paragraph and contained in a
written notice of withdrawal delivered to the Paying Agent as set forth in the
preceding paragraph.
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There shall be no purchase of any Securities pursuant to this
Article (other than through the issuance of Class A Common Stock in payment of
the Repurchase Price, including cash in lieu of fractional shares) if there has
occurred (prior to, on or after, as the case may be, the giving, by the Holders
of such Securities, of the required Repurchase Notice) and is continuing an
Event of Default (other than a default in the payment of the Repurchase Price
with respect to such Securities). The Paying Agent will promptly return to the
respective Holders thereof any Securities (x) with respect to which a Repurchase
Notice has been withdrawn in compliance with this Indenture, or (y) held by it
during the continuance of an Event of Default (other than a default in the
payment of the Repurchase Price with respect to such Securities) in which case,
upon such return, the Repurchase Notice with respect thereto shall be deemed to
have been withdrawn.
SECTION 14.10 Deposit of Repurchase Price. Prior to 11:00 a.m.
(New York City time) on the Repurchase Date the Issuer shall deposit with the
Trustee or with one or more Paying Agents (or, if the Issuer is acting as its
own Paying Agent, shall segregate and hold in trust as provided in Section 2.3)
an amount of money (in immediately available funds if deposited on such Business
Day) or Class A Common Stock, if permitted hereunder, sufficient to pay the
aggregate Repurchase Price of all of the Securities or portions thereof that are
to be purchased as of the Repurchase Date.
SECTION 14.11 Securities Repurchased in Part. Any Security
which is to be purchased only in part shall be surrendered at the office of the
Paying Agent (with, if the Issuer or the Trustee so requires, due endorsement
by, or a written instrument of transfer in form satisfactory to the Issuer or
the Trustee duly executed by, the Holder thereof or such Holder's attorney duly
authorized in writing) and the Issuer shall execute and the Trustee shall
authenticate and deliver to the Holder of such Security, without service charge,
a new Security or Securities, of any authorized denomination as requested by
such Holder in aggregate principal amount equal to, and in exchange for, the
portion
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of the principal amount of the Security so surrendered which is not purchased.
SECTION 14.12 Issuer to Comply with Securities Laws upon
Purchase of Securities. In connection with any offer to purchase or purchase of
Securities under this Article (provided that such offer or purchase constitutes
an "issuer tender offer" for purposes of Rule 13e-4 (which term, as used herein,
includes any successor provision thereto) under the Exchange Act at the time of
such offer or purchase), the Issuer shall (i) comply with Rule 13e-4 and Rule
14e-1 under the Exchange Act, (ii) file the related Schedule 13E-4 (or any
successor schedule, form or report) under the Exchange Act, and (iii) otherwise
comply with all Federal and state securities laws so as to permit the rights and
obligations under this Article to be exercised in the time and in the manner
specified in this Article.
SECTION 14.13 Repayment to the Issuer. The Trustee and any
Paying Agent shall return to the Issuer any cash or shares of Class A Common
Stock that remain unclaimed as provided in Section 9.4, together with interest
or dividends, if any, thereon held by them for the payment of the Repurchase
Price upon Issuer Order; provided, however, that to the extent that the
aggregate amount of cash or shares of Class A Common Stock deposited by the
Issuer pursuant to Section 14.10 exceeds the aggregate Repurchase Price of the
Securities or portions thereof which the Issuer is obligated to purchase as of
the Repurchase Date, then promptly after the Business Day following the
Repurchase Date the Trustee shall return any such excess to the Issuer together
with interest or dividends, if any, thereon.
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IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, all as of February 15, 2000.
AMERICAN TOWER CORPORATION
By /s/ James S. Eisenstein
Name: James S. Eisenstein
Title: Chief Development
Officer
Attest:
By /s/ Justin D. Benincasa
Name: Justin D. Benincasa
Title: Vice President/
Corporate Controller
THE BANK OF NEW YORK, not in
its individual capacity
but solely as Trustee
By /s/ Michael Culhane
Name: Michael Culhane
Title: Vice President
EXHIBIT A
[FORM OF FACE OF SECURITY]
THE FOLLOWING LEGEND SHALL APPEAR ON THE FACE OF EACH
RESTRICTED SECURITY OTHER THAN ANY RESTRICTED GLOBAL
SECURITY:
THIS SECURITY (OR ITS PREDECESSOR) AND ANY CLASS A COMMON
STOCK ISSUED ON CONVERSION HEREOF HAVE NOT BEEN REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE
SECURITIES LAW AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED
EXCEPT (A)(1) TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT
PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL
BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (2) PURSUANT TO AN
EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144
THEREUNDER (IF AVAILABLE), OR (3) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT, AND (B) IN ACCORDANCE WITH ALL APPLICABLE
SECURITIES LAWS OF THE STATES OF THE UNITED STATES.
EACH PURCHASER OF THIS SECURITY IS HEREBY NOTIFIED THAT THE
SELLER OF THIS SECURITY MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF
SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER.
THE FOLLOWING LEGEND SHALL APPEAR ON THE FACE OF EACH
RESTRICTED GLOBAL SECURITY:
THE SECURITIES EVIDENCED BY THIS GLOBAL SECURITY (OR THEIR
PREDECESSORS) AND ANY CLASS A COMMON STOCK ISSUED ON CONVERSION OF THOSE
SECURITIES HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAW AND MAY NOT
BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE ABSENCE OF
REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM.
EACH BENEFICIAL OWNER OF AN INTEREST IN ANY OF THE SECURITIES
EVIDENCED BY THIS GLOBAL SECURITY (INCLUDING ANY PARTICIPANT IN THE DEPOSITARY
HOLDING THE GLOBAL SECURITY THAT IS SHOWN AS HOLDING SUCH AN INTEREST ON THE
RECORDS OF SUCH DEPOSITARY AND EACH BENEFICIAL OWNER THAT HOLDS THROUGH ANY SUCH
PARTICIPANT) AGREES FOR THE BENEFIT OF AMERICAN TOWER CORPORATION (THE "ISSUER")
THAT (I) ANY BENEFICIAL INTEREST IN THE SECURITIES AND ANY SHARES OF CLASS A
COMMON STOCK ISSUABLE UPON THEIR CONVERSION MAY BE RESOLD, PLEDGED OR OTHERWISE
TRANSFERRED ONLY (A)(1) TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A
QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE
SECURITIES ACT PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (2)
PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY
RULE 144 THEREUNDER (IF AVAILABLE), OR (3) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT, AND (B) IN ACCORDANCE WITH ALL APPLICABLE
SECURITIES LAWS OF THE STATES OF THE UNITED STATES AND (II) THE BENEFICIAL OWNER
WILL, AND EACH SUBSEQUENT BENEFICIAL OWNER OF AN INTEREST IN ANY OF THE
SECURITIES EVIDENCED BY THIS GLOBAL SECURITY OR ANY CLASS A COMMON STOCK
ISSUABLE UPON CONVERSION THEREOF IS REQUIRED TO, NOTIFY ANY PURCHASER OF ANY
BENEFICIAL INTEREST IN THE SECURITIES OR SUCH CLASS A COMMON STOCK ISSUABLE UPON
ITS CONVERSION FROM IT OF THE RESALE RESTRICTIONS REFERRED TO IN (I) ABOVE.
EACH PURCHASER OF ANY BENEFICIAL INTEREST IN THE SECURITIES IS
HEREBY NOTIFIED THAT THE SELLER OF SUCH BENEFICIAL INTEREST MAY BE RELYING ON
THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY
RULE 144A THEREUNDER.
THE FOLLOWING LEGEND SHALL APPEAR ON THE FACE OF EACH GLOBAL
SECURITY:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE
INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE
DEPOSITARY OR A NOMINEE OF THE DEPOSITARY, WHICH MAY BE TREATED BY THE ISSUER,
THE TRUSTEE
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AND ANY AGENT THEREOF AS OWNER AND HOLDER OF THIS SECURITY FOR ALL PURPOSES.
THE FOLLOWING LEGEND SHALL APPEAR ON THE FACE OF EACH GLOBAL
SECURITY FOR WHICH THE DEPOSITORY TRUST COMPANY IS TO BE THE
DEPOSITARY:
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"),
TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT,
AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH
OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
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No. $___________
[CUSIP NO.]
American Tower Corporation
5.0% Convertible Notes Due 2010
American Tower Corporation (the "Issuer"), for value received
hereby promises to pay to _________ or registered assigns the principal sum of
____________________ Dollars (which principal amount may from time to time be
increased or decreased to such other principal amounts (which, taken together
with the principal amounts of all other Outstanding Securities, shall not exceed
$450,000,000 in the aggregate at any time) by adjustments made on the records of
the Trustee hereinafter referred to in accordance with the Indenture) at the
Issuer's office or agency for said purpose in the Borough of Manhattan, The City
of New York, on February 15, 2010, in such coin or currency of the United States
of America as at the time of payment shall be legal tender for the payment of
public and private debts, and to pay interest, semi-annually on February 15 and
August 15 of each year and at maturity, on said principal sum in like coin or
currency at the rate per annum set forth above beginning on August 15, 2000, or
from the most recent date to which interest has been paid or duly provided for
on the Securities. The interest so payable on any February 15 or August 15 will,
except as otherwise provided in the Indenture referred to on the reverse hereof,
be paid to the person in whose name this Security is registered at the close of
business on the January 31 or July 31 preceding such February 15 or August 15,
whether or not such day is a business day; provided that interest may be paid,
at the option of the Issuer, by mailing a check therefor payable to the
registered Holder entitled thereto at his last address as it appears on the
Security register.
Reference is made to the further provisions set forth on the
reverse hereof, including without limitation
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provisions giving the Holder hereof the right to convert this Security into
Class A Common Stock of the Issuer on the terms and subject to the conditions
and limitations referred to on the reverse hereof, as more fully specified in
the Indenture. Such further provisions shall for all purposes have the same
effect as though fully set forth at this place.
This Security shall not be valid or obligatory until the
certificate of authentication hereon shall have been duly signed by the Trustee
acting under the Indenture.
IN WITNESS WHEREOF, the Issuer has caused this instrument to
be duly executed under its corporate seal.
Dated: February 15, 2000
[Seal]
AMERICAN TOWER CORPORATION
By____________________________
By____________________________
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[FORM OF REVERSE OF SECURITY]
American Tower Corporation
5.0% Convertible Notes Due 2010
This Security is one of a duly authorized issue of debt
securities of the Issuer, limited to up to the aggregate principal amount of
$400,000,000, or up to $450,000,000 if an option is fully exercised (except as
otherwise provided in the Indenture defined below), issued or to be issued
pursuant to an indenture dated as of February 15, 2000 (the "Indenture"), duly
executed and delivered by the Issuer to The Bank of New York, as Trustee (the
"Trustee"). Reference is hereby made to the Indenture and all indentures
supplemental thereto for a description of the rights, limitations of rights,
obligations, duties and immunities thereunder of the Trustee, the Issuer and the
Holders (the word "Holders" or "Holder" meaning the registered Holders or
registered Holder) of the Securities. Terms used but not otherwise defined
herein shall have the meanings assigned thereto in the Indenture.
In case an Event of Default, as defined in the Indenture,
shall have occurred and be continuing, the principal of all the Securities and
interest accrued thereon may be declared due and payable, in the manner and with
the effect, and subject to the conditions, provided in the Indenture. The
Indenture provides that in certain events a declaration of default, a default,
or the consequences of either of them may be waived by the Holders of a majority
in aggregate principal amount of the Securities then outstanding except a
default in the payment of principal, Change in Control Repurchase Price or
Repurchase Price of or premium, if any, or interest on any of the Securities or
in respect of the conversion of any of the Securities. Any such consent or
waiver by the Holder of this Security (unless revoked as provided in the
Indenture) shall be conclusive and binding upon such Holder and upon all future
Holders and owners of this Security and any Security which
-6-
may be issued in exchange or substitution hereof, whether or not any notation
thereof is made upon this Security or such other Securities.
The Indenture permits the Issuer and the Trustee, without the
consent of any of the Holders under the circumstances described in Section 7.1
of the Indenture, and with the consent of the Holders of not less than a
majority in aggregate principal amount of the Securities at the time
outstanding, evidenced as in the Indenture provided, to execute supplemental
indentures adding any provisions to or changing in any manner or eliminating any
of the provisions of the Indenture or of any supplemental indenture or modifying
in any manner the rights of the Holders of the Securities; provided that no such
supplemental indenture shall (a) extend the final maturity of any Security, or
reduce the principal amount thereof or premium, if any, thereon, or reduce the
rate or extend the time of payment of interest thereon, or any premium payable
on the redemption thereof, or change the place of payment where, or the coin or
currency in which, any principal, premium or interest is payable, or reduce or
alter the method of computation of any amount payable on redemption, repurchase
or repayment thereof (or the time at which such redemption, repurchase or
repayment may be made), or impair or adversely affect the right of any
Securityholder to institute suit for the payment or conversion thereof or
adversely affect the right to convert the Securities into Class A Common Stock
of the Issuer, in each case, without the consent of the Holder of the Security
so affected; provided no consent of any Holder of any Security will be necessary
to permit the Trustee and the Issuer to execute supplemental indentures under
the circumstances provided in Section 7.1(e) and Section 12.5 of the Indenture,
or (b) reduce the aforesaid percentage in principal amount of Securities, the
consent of the Holders of which is required for any such supplemental indenture,
without the consent of the Holders of each Security so affected, or (c) reduce
the percentage of Securities necessary to consent to waive any past default
under the Indenture to less than a majority, without the consent of the Holders
of each Security so affected; or (d) modify any of the provisions of the
Indenture relating to supplemental
-7-
indentures or waivers of past defaults, except to increase any percentage
provided for in Section 4.10 or Section 7.2 of the Indenture or to provide that
certain other provisions of the Indenture cannot be modified or waived without
the consent of the Holder of each Security affected thereby.
Subject to the provisions of the Indenture, the Holder of this
Security has the right, at his option, at any time until and including, but not
after the close of business on, February 15, 2010 (except that, in case this
Security or a portion hereof shall be called for redemption and the Issuer shall
not thereafter default in making due provision for the payment of the redemption
price, such right shall terminate with respect to this Security or such portion
hereof at the close of business on the Business Day prior to the date fixed for
redemption), to convert the principal amount of this Security, or any portion
thereof which is $1,000 or an integral multiple of $1,000, into fully paid and
non-assessable shares of Class A Common Stock of the Issuer, as said shares
shall be constituted at the date of conversion, at the conversion price of
$51.50 in principal amount of Securities for each share of such Class A Common
Stock, or at the adjusted conversion price in effect at the date of conversion
if an adjustment has been made, determined as provided in the Indenture, upon
surrender of this Security to the Issuer at the office or agency of the Issuer
maintained for that purpose in the Borough of Manhattan, The City of New York,
together with a fully executed notice substantially in the form set forth at the
foot hereof that the Holder elects so to convert this Security (or any portion
hereof which is an integral multiple of $1,000 principal amount) and, if this
Security is surrendered for conversion during the period between the close of
business on January 31 or July 31 in any year and the opening of business on the
following February 15 or August 15 and has not been called for redemption on a
redemption date within such period (or on such February 15 or August 15), or
within five days after such period, accompanied by payment of an amount equal to
the interest payable on such February 15 or August 15 on the principal amount of
the Security being surrendered for conversion. Except as provided in the
preceding sentence or as otherwise
-8-
expressly provided in the Indenture, no payment or adjustment shall be made on
account of interest accrued on this Security (or portion thereof) so converted
or on account of any dividend or distribution on any such Common Stock issued
upon conversion, but the Holder of record of this Security on January 31 or July
31 shall be entitled to receive interest on such Security on the succeeding
February 15 or August 15 notwithstanding the conversion of such Security prior
to such February 15 or August 15. If so required by the Issuer or the Trustee,
this Security, upon surrender for conversion as aforesaid, shall be duly
endorsed by, or be accompanied by instruments of transfer, in form satisfactory
to the Issuer, duly executed by, the Holder or by his duly authorized attorney.
The conversion price from time to time in effect is subject to adjustment as
provided in the Indenture. No fractions of shares will be issued on conversion.
In the sole discretion of the Board of Directors, any fractional interest may be
rounded up to the nearest full share, or an adjustment in cash will be made for
any fractional interest, in either case in accordance with and as provided in
the Indenture.
No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligation of the Issuer,
which is absolute and unconditional, to pay the principal of and premium, if
any, and interest on this Security at the place, times, and rate, and in the
currency, herein prescribed.
The Securities are issuable only as registered Securities
without coupons in denominations of $1,000 and any integral multiple of $1,000.
In the manner and subject to the limitations provided in the
Indenture, this Security may be exchanged for a like aggregate principal amount
of Securities of other authorized denominations.
Upon due presentment for registration of transfer of this
Security at the above-mentioned office or agency of the Issuer, a new Security
or Securities of authorized denominations, for a like aggregate principal
amount, will
-9-
be issued to the transferee as provided in the Indenture. No service charge
shall be made for any such transfer, but the Issuer may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
relation thereto.
The Securities may be redeemed at the option of the Issuer as
a whole, or from time to time in part, on and after February 20, 2003, upon
mailing a notice of such redemption not less than 20 nor more than 60 days prior
to the date fixed for redemption to the Holders of Securities to be redeemed,
all as provided in the Indenture, at the following redemption prices (expressed
in percentages of the principal amount) together in each case with accrued
interest to the date fixed for redemption: If rendered during the twelve-month
period beginning February 15, of each year indicated,
Year Redemption Price
February 20, 2003 102.50%
February 15, 2004 101.67
February 15, 2005 100.83
February 15, 2006 and thereafter 100.00
The Securities do not have the benefit of any sinking fund
obligations.
If at any time there shall occur any Change in Control as
defined in the Indenture with respect to the Issuer, each Holder of Securities
shall, except as otherwise provided in the Indenture, have the right, at such
Holder's option but subject to the conditions set forth in the Indenture, to
require the Issuer to redeem on the Change in Control Repurchase Date as defined
in the Indenture all or any part of such Holder's Securities that is $1,000 or
an integral multiple thereof at a Change in Control Repurchase Price equal to
the principal amount thereof, and accrued and unpaid interest, if any, up to but
excluding the Change in Control Repurchase Date.
-10-
Subject to payment by the Issuer of a sum suffi cient to pay
the amount due on redemption, interest on this Security (or portion hereof if
this Security is redeemed in part) shall cease to accrue upon the date duly
fixed for redemption of this Security (or portion hereof if this Security is
redeemed in part).
Subject to the terms and conditions of the Indenture, the
Issuer shall become obligated to purchase, at the option of the Holder, the
Securities held by such Holder on February 20, 2007 (the "Repurchase Date") at
the Repurchase Price of 100% of the principal amount thereof, plus accrued and
unpaid interest, if any, up to but excluding the Repurchase Date, upon delivery
of a Repurchase Notice containing the information set forth in the Indenture, at
any time from the opening of business on the date that is 20 Business Days prior
to the Repurchase Date until the close of business on the Repurchase Date and
upon delivery of the Securities to the Paying Agent by the Holder as set forth
in the Indenture.
The Repurchase Price may be paid, at the option of the Issuer,
in cash or by the issuance and delivery of shares of Class A Common Stock of the
Issuer, or in any combination thereof.
Holders have the right to withdraw any Repurchase Notice by
delivering to the Paying Agent a written notice of withdrawal in accordance with
the provisions of the Indenture.
If cash (and/or securities if permitted under the Indenture)
sufficient to pay the Repurchase Price of all Securities or portions thereof to
be purchased as of the Repurchase Date, is deposited with the Trustee or a
Paying Agent on the Repurchase Date, interest ceases to accrue on such
Securities (or portions thereof) immediately after such Repurchase Date, and the
Holder thereof shall have no other rights as such (other than the right to
receive the Repurchase Price upon surrender of such Security).
-11-
The Holder of this Security and the Class A Common Stock
issuable on the conversion hereof is entitled to the benefits of a Registration
Rights Agreement executed by the Issuer. Whenever in this Security there is a
reference to the payment of interest on, or in respect of, a Security, such
mention shall be deemed to include mention of the payment of liquidated damages
to the extent payable as contemplated in such Registration Rights Agreement.
The Issuer, the Trustee and any authorized agent of the Issuer
or the Trustee may deem and treat the registered Holder hereof as the absolute
owner of this Security (whether or not this Security shall be overdue and
notwithstanding any notation of ownership or other writing hereon made by anyone
other than the Issuer or the Trustee or any authorized agent of the Issuer or
the Trustee), for the purpose of receiving payment of, or on account of, the
principal hereof and premium, if any, and, subject to the provisions on the face
hereof, interest hereon and for all other purposes, and neither the Issuer nor
the Trustee nor any authorized agent of the Issuer or the Trustee shall be
affected by any notice to the contrary.
No recourse shall be had for the payment of the principal of
or premium, if any, or the interest on this Security, for any claim based
hereon, or otherwise in respect hereof, or based on or in respect of the
Indenture or any indenture supplemental thereto, against any incorporator, as
such, or against any past, present or future stockholder, officer or director,
as such, of the Issuer or of any partner or member of the Issuer or of any
successor, either directly or through the Issuer or any successor, whether by
virtue of any constitution, statute or rule of law or by the enforcement of any
assessment or penalty or otherwise, all such liability being, by the acceptance
thereof and as part of the consideration for the issue hereof, expressly waived
and released.
The Indenture and this Security shall be governed by and
construed in accordance with the laws of the State of New York.
-12-
[FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This is one of the Securities described in the
within-mentioned Indenture.
THE BANK OF NEW YORK,
as Trustee
___________________________________
Authorized Signatory
-13-
[FORM OF CONVERSION NOTICE]
To: American Tower Corporation
The undersigned owner of this Security hereby: (i) irrevocably
exercises the option to convert this Security, or the portion hereof below
designated, for shares of Class A Common Stock of American Tower Corporation in
accordance with the terms of the Indenture referred to in this Security and (ii)
directs that such shares of Class A Common Stock deliverable upon the
conversion, together with any check in payment for fractional shares and any
Security(ies) representing any unconverted principal amount hereof, be issued
and delivered to the registered Holder hereof unless a different name has been
indicated below. If shares and/or Security(ies) are to be delivered registered
in the name of a person other than the undersigned, the undersigned will pay all
transfer taxes payable with respect thereto. Any amount required to be paid by
the undersigned on account of interest accompanies this Security.
Dated:
___________________________
Signature
Fill in for registration of shares if to be delivered, and of Securities if to
be issued, otherwise than to and in the name of the registered Holder.
___________________________
Social Security or Other
Taxpayer Identifying Number
_________________________________________________________
(Name)
_________________________________________________________
(Street Address)
_________________________________________________________
(City, State and Zip Code)
(Please print name and address)
Principal Amount to Be Converted:
(if less than all)
$___________________________________
-14-
[FORM OF OPTION OF HOLDER TO ELECT REDEMPTION
UPON CHANGE IN CONTROL]
If you want to elect to have this Security purchased in its
entirety by the Issuer pursuant to Article Thirteen of the Indenture, check the
box:
|_|
If you want to elect to have only a part of this Security
purchased by the Issuer pursuant to Article Thirteen of the Indenture, state the
principal amount:
$
Dated: Your Signature:____________________
(Sign exactly as name appears
on the face of this Security)
Signature Guarantee:___________________________________
(Signature must be guaranteed by
a member firm of the New York Stock
Exchange or a commercial bank or
trust company)
-15-