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COMMNET CELLULAR INC.
Issuer
and
AMERICAN BANK NATIONAL ASSOCIATION
Trustee
_______________________
INDENTURE
Dated as of July , 1995
_______________________
$125,000,000
% Subordinated Notes due 2005
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COMMNET CELLULAR INC.
Reconciliation and tie between Trust Indenture Act
of 1939 and Indenture, dated as of , 1995
Trust Indenture Act Section Indenture Section
- --------------------------- -----------------
310(a)(1) . . . . . . . . . . . . . . . . 607
(a)(2) . . . . . . . . . . . . . . . . 607
(a)(3) . . . . . . . . . . . . . . . . Not Applicable
(a)(4) . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . 613
608
311(a) . . . . . . . . . . . . . . . . 614
(b) . . . . . . . . . . . . . . . . 614
312(a) . . . . . . . . . . . . . . . . 1301
1302
(b) . . . . . . . . . . . . . . . . 1302
313(a) . . . . . . . . . . . . . . . . 1303
(b) . . . . . . . . . . . . . . . . 1303
(c) . . . . . . . . . . . . . . . . 1303
(d) . . . . . . . . . . . . . . . . 1303
314(a) . . . . . . . . . . . . . . . . 1304, 1011
(b) . . . . . . . . . . . . . . . . Not Applicable
(c)(1) . . . . . . . . . . . . . . . . 113
(c)(2) . . . . . . . . . . . . . . . . 113
(c)(3) . . . . . . . . . . . . . . . . Not Applicable
(d) . . . . . . . . . . . . . . . . Not Applicable
(e) . . . . . . . . . . . . . . . . 113
315(a) . . . . . . . . . . . . . . . . 601
(b) . . . . . . . . . . . . . . . . 612
. . . . . . . . . . . . . . . . 1303
(c) . . . . . . . . . . . . . . . . 601
(d) . . . . . . . . . . . . . . . . 601
(e) . . . . . . . . . . . . . . . . 514
316(a) . . . . . . . . . . . . . . . . 101
(a)(1)(A) . . . . . . . . . . . . . . . . 502
512
(a)(1)(B) . . . . . . . . . . . . . . . . 513
(a)(2) . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . 508
317(a)(1) . . . . . . . . . . . . . . . . 503
(b)(2) . . . . . . . . . . . . . . . . 504
(b) . . . . . . . . . . . . . . . . 1003
318(a) . . . . . . . . . . . . . . . . 114
Note: This reconciliation and tie shall not, for any purpose, be deemed to
be a part of the Indenture.
TABLE OF CONTENTS
RECITALS OF THE COMPANY. . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE ONE
Definitions and Other Provisions of General Application
SECTION 101. DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . 1
Acquired Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . 2
Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Affiliate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Asset Sale. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Associate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Attributable Debt . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Authenticating Agent. . . . . . . . . . . . . . . . . . . . . . . . . . 2
Board of Directors. . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Board Resolution. . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Business Day. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Capital Lease . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Capitalized Lease Obligation. . . . . . . . . . . . . . . . . . . . . . 3
Capital Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Cash Equivalents. . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Change in Control . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Commission. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Company Notice. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Company Request or Company Order. . . . . . . . . . . . . . . . . . . . 4
Consolidated Interest Expense . . . . . . . . . . . . . . . . . . . . . 4
Consolidated Net Income (Loss). . . . . . . . . . . . . . . . . . . . . 4
Conversion Condition. . . . . . . . . . . . . . . . . . . . . . . . . . 4
Convertible Redemption Date . . . . . . . . . . . . . . . . . . . . . . 5
Corporate Office. . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Corporation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Covenant Defeasance . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Credit Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Defaulted Interest. . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Defeasance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Depository. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Disqualified Capital Stock. . . . . . . . . . . . . . . . . . . . . . . 6
Disqualified Pops . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Dollar or $ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
EBITDA. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Enforcement Notice. . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Event of Default. . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Exchange Act. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Exchangeable Stock. . . . . . . . . . . . . . . . . . . . . . . . . . . 6
FCC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Financed Pops . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
GAAP. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Global Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Guarantee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Guaranty. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Incur . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Indebtedness. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Intercompany Indebtedness . . . . . . . . . . . . . . . . . . . . . . . 8
Interest Payment Date . . . . . . . . . . . . . . . . . . . . . . . . . 8
Interest Swap and Hedging Obligations . . . . . . . . . . . . . . . . . 8
Investment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Issue Date. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Lien. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
MSA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Net Company Pops. . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Net Proceeds Offer. . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Officers' Certificate . . . . . . . . . . . . . . . . . . . . . . . . . 9
Opinion of Counsel. . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Outstanding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Pari Passu Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . 10
Paying Agent. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Permitted Indebtedness. . . . . . . . . . . . . . . . . . . . . . . . . 10
Permitted Investments . . . . . . . . . . . . . . . . . . . . . . . . . 11
Person. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Place of Payment. . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Pops. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Predecessor Security. . . . . . . . . . . . . . . . . . . . . . . . . . 11
Preferred Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Productive Assets . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Qualified Capital Stock . . . . . . . . . . . . . . . . . . . . . . . . 12
Redemption Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Redemption Price. . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
ii
Regular Record Date . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Repurchase Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Required Filing Dates . . . . . . . . . . . . . . . . . . . . . . . . . 12
Responsible Officer . . . . . . . . . . . . . . . . . . . . . . . . . . 12
RSA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Sale and Leaseback Transaction. . . . . . . . . . . . . . . . . . . . . 12
Securities Act. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Secured Pops. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Security Register and Security Registrar. . . . . . . . . . . . . . . . 13
Senior Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Senior Secured Credit Facility. . . . . . . . . . . . . . . . . . . . . 13
Special Record Date . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Stated Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Subordinated Indebtedness . . . . . . . . . . . . . . . . . . . . . . . 13
Subsidiary. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Surviving Person. . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Transfer Agent. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
U.S. Government Obligations . . . . . . . . . . . . . . . . . . . . . . 14
Vendor Financing Indebtedness . . . . . . . . . . . . . . . . . . . . . 14
Vice President. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Weighted Average Life to Maturity . . . . . . . . . . . . . . . . . . . 14
Wholly Owned Subsidiary . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 102. FORM OF DOCUMENTS DELIVERED TO TRUSTEE. . . . . . . . . . . . 14
SECTION 103. ACTS OF HOLDERS . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 104. NOTICES, ETC., TO TRUSTEE AND COMPANY . . . . . . . . . . . . 16
SECTION 105. NOTICE OF HOLDERS; WAIVER . . . . . . . . . . . . . . . . . . 16
SECTION 106. EFFECT OF HEADINGS AND TABLE OF CONTENTS. . . . . . . . . . . 17
SECTION 107. SUCCESSORS AND ASSIGNS. . . . . . . . . . . . . . . . . . . . 17
SECTION 108. SEPARABILITY CLAUSE . . . . . . . . . . . . . . . . . . . . . 17
SECTION 109. BENEFITS OF INDENTURE . . . . . . . . . . . . . . . . . . . . 17
SECTION 110. GOVERNING LAW . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 111. LEGAL HOLIDAYS. . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 112. COMPLIANCE CERTIFICATES AND OPINIONS. . . . . . . . . . . . . 18
SECTION 113. CONFLICT WITH TRUST INDENTURE ACT . . . . . . . . . . . . . . 19
SECTION 114. NO RECOURSE AGAINST OTHERS. . . . . . . . . . . . . . . . . . 19
iii
ARTICLE TWO
Security Form
SECTION 201. FORM GENERALLY. . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 202. FORM OF SECURITIES. . . . . . . . . . . . . . . . . . . . . . 20
SECTION 203. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION . . . . . . . 24
SECTION 204. FORM OF REPURCHASE NOTICE . . . . . . . . . . . . . . . . . . 25
SECTION 205. SECURITIES IN THE FORM OF A GLOBAL SECURITY . . . . . . . . . 27
ARTICLE THREE
The Securities
SECTION 301. TITLE AND TERMS . . . . . . . . . . . . . . . . . . . . . . . 27
SECTION 302. DENOMINATIONS . . . . . . . . . . . . . . . . . . . . . . . . 27
SECTION 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING. . . . . . . . 27
SECTION 304. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE . . . . . 28
SECTION 305. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES. . . . . . . 29
SECTION 306. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED. . . . . . . . 30
SECTION 307. PERSONS DEEMED OWNERS . . . . . . . . . . . . . . . . . . . . 31
SECTION 308. CANCELLATION. . . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 309. COMPUTATION OF INTEREST . . . . . . . . . . . . . . . . . . . 31
ARTICLE FOUR
Satisfaction and Discharge
SECTION 401. SATISFACTION AND DISCHARGE OF INDENTURE . . . . . . . . . . . 32
SECTION 402. APPLICATION OF TRUST MONEY. . . . . . . . . . . . . . . . . . 33
ARTICLE FIVE
Remedies
SECTION 501. EVENTS OF DEFAULT . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 502. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT. . . . . . .35
SECTION 503. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT
BY TRUSTEE. . . . . . . . . . . . . . . . . . . . . . . . . . .36
SECTION 504. TRUSTEE MAY FILE PROOFS OF CLAIM. . . . . . . . . . . . . . . .37
SECTION 505. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF SECURITIES . .38
SECTION 506. APPLICATION OF MONEY COLLECTED. . . . . . . . . . . . . . . . .38
iv
SECTION 507. LIMITATION ON SUITS . . . . . . . . . . . . . . . . . . . . . 38
SECTION 508. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL,
PREMIUM ANDINTEREST . . . . . . . . . . . . . . . . . . . . . 39
SECTION 509. RESTORATION OF RIGHTS AND REMEDIES. . . . . . . . . . . . . . 39
SECTION 510. RIGHTS AND REMEDIES CUMULATIVE. . . . . . . . . . . . . . . . 39
SECTION 511. DELAY OR OMISSION NOT WAIVER. . . . . . . . . . . . . . . . . 40
SECTION 512. CONTROL BY HOLDERS. . . . . . . . . . . . . . . . . . . . . . 40
SECTION 513. WAIVER OF PAST DEFAULTS . . . . . . . . . . . . . . . . . . . 40
SECTION 514. UNDERTAKING FOR COSTS . . . . . . . . . . . . . . . . . . . . 41
SECTION 515. WAIVER OF STAY OR EXTENSION LAWS. . . . . . . . . . . . . . . 41
ARTICLE SIX
The Trustee
SECTION 601. CERTAIN DUTIES AND RESPONSIBILITIES . . . . . . . . . . . . . 42
SECTION 602. CERTAIN RIGHTS OF TRUSTEE . . . . . . . . . . . . . . . . . . 43
SECTION 603. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES. . . . 44
SECTION 604. MAY HOLD SECURITIES . . . . . . . . . . . . . . . . . . . . . 44
SECTION 605. MONEY HELD IN TRUST . . . . . . . . . . . . . . . . . . . . . 44
SECTION 606. COMPENSATION AND REIMBURSEMENT. . . . . . . . . . . . . . . . 45
SECTION 607. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY . . . . . . . . . . . 45
SECTION 608. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR . . . . . . 45
SECTION 609. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR. . . . . . . . . . . . 47
SECTION 610. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS . 47
SECTION 611. APPOINTMENT OF AUTHENTICATING AGENT . . . . . . . . . . . . . 47
SECTION 612. NOTICE OF DEFAULTS. . . . . . . . . . . . . . . . . . . . . . 49
SECTION 613. DISQUALIFICATION; CONFLICTING INTERESTS . . . . . . . . . . . 49
SECTION 614. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY . . . . . . 50
ARTICLE SEVEN
Consolidation, Merger, Conveyance, Transfer or Lease
SECTION 701. COMPANY MAY CONSOLIDATE, ETC. ONLY ON CERTAIN TERMS . . . . . 50
SECTION 702. SUCCESSOR SUBSTITUTED . . . . . . . . . . . . . . . . . . . . 50
ARTICLE EIGHT
Supplemental Indentures
v
SECTION 801. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS. . . . . . 51
SECTION 802. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS . . . . . . . 51
SECTION 803. EXECUTION OF SUPPLEMENTAL INDENTURES. . . . . . . . . . . . . 53
SECTION 804. EFFECT OF SUPPLEMENTAL INDENTURES . . . . . . . . . . . . . . 53
SECTION 805. REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES. . . . . . 53
SECTION 806. NOTICE OF SUPPLEMENTAL INDENTURES . . . . . . . . . . . . . . 53
SECTION 807. CONFORMITY WITH TRUST INDENTURE ACT . . . . . . . . . . . . . 53
ARTICLE NINE
Meetings of Holders of Securities
SECTION 901. PURPOSES FOR WHICH MEETINGS MAY BE CALLED . . . . . . . . . . 54
SECTION 902. CALL, NOTICE AND PLACE OF MEETINGS. . . . . . . . . . . . . . 54
SECTION 903. PERSONS ENTITLED TO VOTE AT MEETINGS. . . . . . . . . . . . . 54
SECTION 904. QUORUM; ACTION. . . . . . . . . . . . . . . . . . . . . . . . 55
SECTION 905. DETERMINATION OF VOTING RIGHTS;
CONDUCT AND ADJOURNMENT OF MEETINGS.. . . . . . . . . . . . . 55
SECTION 906. COUNTING VOTES AND RECORDING ACTION OF MEETINGS . . . . . . . 56
SECTION 907. ACTION BY WRITTEN CONSENT . . . . . . . . . . . . . . . . . . 56
ARTICLE TEN
Covenants
SECTION 1001. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST. . . . . . . . . . 57
SECTION 1002. MAINTENANCE OF OFFICE OR AGENCY . . . . . . . . . . . . . . . 57
SECTION 1003. MONEY FOR SECURITIES; PAYMENTS TO BE HELD
IN TRUST; NOTICE REGARDING PAYING AGENTS. . . . . . . . . . . 58
SECTION 1004. EXISTENCE . . . . . . . . . . . . . . . . . . . . . . . . . . 59
SECTION 1005. MAINTENANCE OF PROPERTIES . . . . . . . . . . . . . . . . . . 59
SECTION 1006. PAYMENT OF TAXES AND OTHER CLAIMS . . . . . . . . . . . . . . 60
SECTION 1007. LIMITATION ON TRANSACTIONS WITH AFFILIATES. . . . . . . . . . 60
SECTION 1008. LIMITATION ON INCURRENCE OF ADDITIONAL INDEBTEDNESS . . . . . 60
SECTION 1009. LIMITATION ON RESTRICTED PAYMENTS . . . . . . . . . . . . . . 61
SECTION 1010. LIMITATION ON DIVIDEND AND OTHER PAYMENT
RESTRICTIONS AFFECTING SUBSIDIARIES . . . . . . . . . . . . . 63
SECTION 1011. PROVISION OF FINANCIAL INFORMATION. . . . . . . . . . . . . . 64
SECTION 1012. INVESTMENT COMPANY ACT. . . . . . . . . . . . . . . . . . . . 64
SECTION 1013. NOTICE OF DEFAULT . . . . . . . . . . . . . . . . . . . . . . 64
SECTION 1014. PROHIBITION ON INCURRENCE OF SUBSIDIARY INDEBTEDNESS. . . . . 65
SECTION 1015. ANNUAL STATEMENTS BY OFFICERS AS TO DEFAULT . . . . . . . . . 65
vi
SECTION 1016. WAIVER OF CERTAIN COVENANTS . . . . . . . . . . . . . . . . . 65
SECTION 1017. LIMITATION ON LIENS WITH RESPECT TO PARI PASSU
OR SUBORDINATED INDEBTEDNESS. . . . . . . . . . . . . . . . . 65
ARTICLE ELEVEN
Redemption of Securities
SECTION 1101. RIGHT OF REDEMPTION . . . . . . . . . . . . . . . . . . . . . 66
SECTION 1102. APPLICABILITY OF ARTICLE. . . . . . . . . . . . . . . . . . . 66
SECTION 1103. ELECTION TO REDEEM; NOTICE TO TRUSTEE . . . . . . . . . . . . 66
SECTION 1104. SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED . . . . . . 66
SECTION 1105. NOTICE OF REDEMPTION. . . . . . . . . . . . . . . . . . . . . 67
SECTION 1106. DEPOSIT OF REDEMPTION PRICE . . . . . . . . . . . . . . . . . 68
SECTION 1107. SECURITIES PAYABLE ON REDEMPTION DATE . . . . . . . . . . . . 68
SECTION 1108. SECURITIES REDEEMED IN PART . . . . . . . . . . . . . . . . . 68
ARTICLE TWELVE
Subordination of Securities
SECTION 1201. SECURITIES SUBORDINATE TO SENIOR INDEBTEDNESS . . . . . . . . 69
SECTION 1202. PAYMENT OVER OF PROCEEDS UPON DISSOLUTION, ETC. . . . . . . . 69
SECTION 1203. NO PAYMENT WHEN SENIOR INDEBTEDNESS IN DEFAULT. . . . . . . . 70
SECTION 1204. PAYMENT PERMITTED IF NO DEFAULT . . . . . . . . . . . . . . . 72
SECTION 1205. SUBROGATION TO RIGHTS OF HOLDERS OF SENIOR INDEBTEDNESS . . . 72
SECTION 1206. PROVISIONS SOLELY TO DEFINE RELATIVE RIGHTS . . . . . . . . . 73
SECTION 1207. TRUSTEE TO EFFECTUATE SUBORDINATION . . . . . . . . . . . . . 73
SECTION 1208. NO WAIVER OF SUBORDINATION PROVISIONS . . . . . . . . . . . . 73
SECTION 1209. NOTICE TO TRUSTEE . . . . . . . . . . . . . . . . . . . . . . 74
SECTION 1210. RELIANCE ON JUDICIAL ORDER OR CERTIFICATE OF LIQUIDATING AGENT 75
SECTION 1211. TRUSTEE NOT FIDUCIARY FOR HOLDERS OF SENIOR INDEBTEDNESS. . . 75
SECTION 1212. RIGHTS OF TRUSTEE AS HOLDER OF SENIOR
INDEBTEDNESS; PRESERVATION OF TRUSTEE'S RIGHTS. . . . . . . . 75
SECTION 1213. ARTICLE APPLICABLE TO PAYING AGENTS . . . . . . . . . . . . . 75
SECTION 1214. CERTAIN CONVERSIONS DEEMED PAYMENT. . . . . . . . . . . . . . 76
SECTION 1215. OFFICER'S CERTIFICATE . . . . . . . . . . . . . . . . . . . . 76
vii
ARTICLE THIRTEEN
Holders' Lists and Reports by Trustee and Company
SECTION 1301. COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF HOLDERS . . 76
SECTION 1302. PRESERVATION OF INFORMATION; COMMUNICATIONS TO HOLDERS. . . . 77
SECTION 1303. REPORTS BY TRUSTEE. . . . . . . . . . . . . . . . . . . . . . 78
SECTION 1304. REPORTS BY COMPANY. . . . . . . . . . . . . . . . . . . . . . 78
ARTICLE FOURTEEN
Repurchase of Securities at the Option
of the Holder Upon Change in Control
SECTION 1401. RIGHT TO REQUIRE REPURCHASE . . . . . . . . . . . . . . . . . 79
SECTION 1402. NOTICES; METHOD OF EXERCISING REPURCHASE RIGHT, ETC.. . . . . 79
SECTION 1403. CERTAIN DEFINITIONS . . . . . . . . . . . . . . . . . . . . . 81
ARTICLE FIFTEEN
Defeasance and Covenant Defeasance
SECTION 1501. COMPANY'S OPTION TO EFFECT DEFEASANCE
OR COVENANT DEFEASANCE 82
SECTION 1502. DEFEASANCE AND DISCHARGE. 82
SECTION 1503. COVENANT DEFEASANCE. 83
SECTION 1504. CONDITIONS TO DEFEASANCE OR COVENANT
DEFEASANCE 83
SECTION 1505. DEPOSITED MONEY AND U.S. GOVERNMENT OBLIGATIONS
TO BE HELD IN TRUST; MISCELLANEOUS PROVISIONS 85
SECTION 1506. REINSTATEMENT 86
viii
INDENTURE, dated as of July ___, 1995, between CommNet Cellular Inc.,
a corporation duly organized and existing under the laws of the State of
Colorado (herein called the "Company"), having its principal office at 5990
Greenwood Plaza Boulevard, Suite 300, Engelwood, Colorado 80111, and American
Bank National Association, a corporation duly organized and existing under the
laws of the United States, as Trustee (herein called the "Trustee") having its
principal office at 101 East Fifth Street, St. Paul, Minnesota 55101.
RECITALS OF THE COMPANY
The Company has duly authorized the creation of an issue of its
Subordinated Notes due 2005 (hereinafter called the "Securities") of
substantially the tenor and amount hereinafter set forth, and to provide
therefor the Company has duly authorized the execution and delivery of this
Indenture.
All things necessary to make the Securities, when the Securities are
executed by the Company and authenticated and delivered hereunder and duly
issued by the Company, the valid obligations of the Company, and to make this
Indenture a valid agreement of the Company, in accordance with their and its
terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of the Securities, as follows:
ARTICLE ONE
Definitions and Other Provisions
of General Application
SECTION 101. DEFINITIONS.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(2) 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; and
(3) certain terms, used principally within a particular Article of
this Indenture, may be defined in that Article. All other terms used
herein which are defined in the Trust Indenture Act, either directly or by
reference therein, have the meanings assigned to them therein.
"Acquired Indebtedness" means Indebtedness of a Person or any of its
Subsidiaries existing at the time such Person becomes a Subsidiary of the
Company or assumed in connection with the acquisition of assets from such Person
and not incurred by such Person in connection with, or in anticipation or
contemplation of, such Person becoming a Subsidiary of the Company or such
acquisition.
"Act", when used with respect to any Holder, has the meaning specified
in Section 103.
"Affiliate" of any specified Person means any other Person who
directly or indirectly through one or more intermediaries controls, or is
controlled by, or is under common control with such specified Person. For the
purposes of this definition, the term "control" when used with respect to any
specified Person, means the possession, directly or indirectly, of the power to
direct or cause the direction of the management and policies of such Person,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "affiliated", "controlling" and "controlled" have meanings
correlative to the foregoing. For purposes of Section 1007, the term
"affiliate" shall include any Person who, as a result of any transaction
described in Section 1007, would become an Affiliate.
"Asset Sale" means the sale, lease (other than an operating lease),
assignment or other disposition (including, without limitation, dispositions
pursuant to Sale and Leaseback Transactions) by the Company or one of its
Subsidiaries to any Person other than the Company or one of its Subsidiaries of
(i) any capital stock of any Subsidiary or (ii) all or substantially all of the
properties and assets of any division or line of business of the Company or any
Subsidiary of the Company. For the purposes of this definition, the term "Asset
Sale" shall not include the sale or other disposition of Capital Stock of the
Company.
"Associate" has the meaning specified in Section 1403.
"Attributable Debt" in respect of a Sale and Leaseback Transaction
means, at the time of determination, the present value (discounted at the
interest rate implicit in the lease, compounded semi-annually) of the obligation
of the lessee of the property subject to such Sale and Leaseback Transaction for
rental payments during the remaining term of the lease included in such
transaction including any period for which such lease has been extended or may,
at the option of the lessor, be extended or until the earliest date on which the
lessee may terminate such lease without penalty or upon payment of penalty (in
which case the rental payments shall include such penalty), after excluding all
amounts required to be paid on account of maintenance and repairs, insurance,
taxes, assessments, water, utilities and similar charges.
2
"Authenticating Agent" means any Person authorized by the Trustee to
act on behalf of the Trustee to authenticate the Securities.
"Board of Directors" means either the board of directors of the
Company or any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day", when used with respect to any Place of Payment, means
each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which
banking institutions in that Place of Payment are authorized or obligated by law
or executive order to close.
"Capital Lease" means, as applied to any Person, any lease of any
property (whether real, personal or mixed) by that person as lessee which, in
conformity with generally accepted accounting principles, is accounted for as a
capital lease on the balance sheet of such Person.
"Capitalized Lease Obligation" means the discounted present value of
the rental obligations under any Capital Lease.
"Capital Stock" means (i) with respect to any Person, any and all
shares, interests, participations or other equivalents (however designated) of
corporate stock, including each class of common stock and preferred stock of
such Person and (ii) with respect to any other Person formed other than as a
corporation, any and all partnership or other equity interest of such other
Person.
"Cash Equivalents" means (i) marketable direct obligations issued by,
or unconditionally guaranteed by, the United States Government or issued by any
agency thereof and backed by the full faith and credit of the United States, in
each case maturing within one year from the date of acquisition thereof, (ii)
marketable direct obligations issued by any state of the United States of
America or any political subdivision of any such state or any public
instrumentality thereof maturing within one year from the date of acquisition
thereof and, at the time of acquisition, having one of the two highest ratings
obtainable from either Standard & Poor's Corporation or Moody's Investors
Service, (iii) commercial paper maturing no more than one year from the date of
creation thereof and, at the time of acquisition, having a rating of at least
A-1 from Standard & Poor's Corporation or at least P-1 from Moody's Investors
Service, (iv) certificates of deposit or bankers' acceptances maturing within
one year from the date of acquisition thereof issued by any commercial bank
organized under the laws of the United States of America or any state thereof or
the District of Columbia or any U.S. branch of a foreign bank having at the date
of acquisition thereof combined capital and surplus of not less than $250
million, (v) repurchase obligations with a term of not more than seven days for
underlying
3
securities of the types described in clause (i) above entered into with any bank
meeting the qualifications specified in clause (iv) above, (vi) investments in
money market funds which invest substantially all their assets in securities of
the types described in clauses (i) through (v) above, and (vii) corporate debt
obligations maturing within one year from the date of acquisition thereof and,
at the time of acquisition, having an investment grade rating from Standard &
Poor's Corporation and Moody's Investors Service.
"Change in Control" has the meaning specified in Section 1403.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Securities Exchange Act of 1934, or,
if at any time after the execution of this instrument such Commission is not
existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties at such time.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Notice" has the meaning specified in Section 1402.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its Chairman of the Board, its President or
a Vice President, and by its Treasurer, an Assistant Treasurer, its Secretary or
an Assistant Secretary, and delivered to the Trustee.
"Consolidated Interest Expense" means, for any period, the amount of
interest in respect of Indebtedness (including amortization of original issue
discount, amortization of debt issuance costs, and non-cash interest payments on
any Indebtedness and the interest portion of any deferred payment obligation,
the interest component of rentals in respect of any Capitalized Lease Obligation
paid, accrued or scheduled to be paid or accrued by such Person during such
period), determined on a consolidated basis in accordance with GAAP. For
purposes of this definition, interest on a Capitalized Lease Obligation shall be
deemed to accrue at an interest rate reasonably determined by such Person to be
the rate of interest implicit in such Capitalized Lease Obligation in accordance
with GAAP consistently applied.
"Consolidated Net Income (Loss)" means, with respect to any Person,
for any period, the consolidated net income (or loss) of such Person on a
consolidated basis for such period, as determined in accordance with GAAP
consistently applied, adjusted, to the extent included in calculating such net
income, by excluding, without duplication, (i) all extraordinary gains or losses
(net of fees and expenses relating to the transaction giving rise thereto) and
the non-recurring cumulative effect of accounting changes, (ii) the portion of
net income (or loss) of such Person and its consolidated Persons allocable to
minority interests in unconsolidated Persons to the extent that cash dividends
or distributions have not actually been received by such Person or one of its
consolidated Persons, (iii) net income (or loss) of any Person combined with
4
such Person or one of its consolidated Persons on a "pooling of interests" basis
attributable to any period prior to the date of combination, (iv) gains or
losses (on an after-tax basis) in respect of any Asset Sales by such Person or
one of its consolidated Persons (net of fees and expenses relating to the
transaction giving rise thereto), and (v) all management fees, or other income
relating to services that are in the nature of management, corporate overhead or
administrative services, to the extent cash is not actually received by such
Person with respect to such services.
"Conversion Condition" means the conversion of a majority in aggregate
principal amount (i.e. not less than $37,374,000 aggregate principal amount) of
the Company's outstanding 6 3/4% Convertible Subordinated Debentures due 2009 by
the holders thereof on or prior to the Convertible Redemption Date into shares
of the common stock of the Company.
"Convertible Redemption Date" means 11:00 A.M. New York City time on
July , 1995.
"Corporate Office" means the principal office of the Trustee in the
city of St. Paul, Minnesota, at which at any particular time its corporate trust
business shall be administered, which office is on the date of this Indenture
located at American Bank National Association, 101 East Fifth Street, St. Paul,
Minnesota 55101, Attention: Corporate Trust Administration.
"Corporation" means a corporation, association, company, joint-stock
company or business trust.
"Covenant Defeasance" has the meaning specified in Section 1503.
"Credit Agreements" means the Amended and Second Restated Loan
Agreement for RSAs, dated as of March 31, 1993, as amended by Amendment No. 1
thereto dated as of August 2, 1993 and Amendment No. 2 thereto dated as of
February 22, 1994, between Cellular, Inc. Financial Corporation and National
Bank for Cooperatives (now known as CoBank, ACB) and the Amended and Restated
Loan Agreement for MSAs, dated as of March 31, 1993, as amended by Amendment No.
1 thereto dated as of August 2, 1993 and Amendment No. 2 thereto dated as of
February 22, 1994 between Cellular, Inc. Financial Corporation and National Bank
for Cooperatives (now known as CoBank, ACB) and any related notes, any related
security agreements, any related letters of credit and any other related
documents, as such agreements may be amended, supplemented or modified from time
to time including any and all refinancings, modifications, replacements,
renewals, restatements, refundings, deferrals, extensions, substitutions,
supplements or reissuances, including any agreement increasing the amount of
Indebtedness incurred thereunder or available to be borrowed thereunder,
provided that on the date such Indebtedness is Incurred it would not be
prohibited by Section 1008.
"Default" means an event or condition the occurrence of which is, or
with the lapse of time or the giving of notice or both would be, an Event of
Default.
5
"Defaulted Interest" has the meaning specified in Section 306.
"Defeasance" has the meaning specified in Section 1502.
"Depository" means, unless otherwise specified by the Company pursuant
to Section 205, with respect to Securities or issued as a Global Security, The
Depository Trust Company, New York, New York, or any successor thereto
registered as a clearing agency under the Exchange Act or other applicable
statute or regulation.
"Designated Senior Indebtedness" means (i) the Indebtedness
outstanding under the Credit Agreements and the Guaranty, including letters of
credit and reimbursement obligations in respect thereof, (ii) the Company's 11
3/4% Senior Subordinated Discount Notes due 2003 and (iii) any other Senior
Indebtedness permitted under the Indenture having a principal amount of at least
$20 million that is designated as "Designated Senior Indebtedness" by written
notice from the Company to the Trustee.
"Disqualified Capital Stock" means any Capital Stock which, by its
terms (or by the terms of any security into which it is convertible or for which
it is exchangeable), or upon the happening of any event, matures or is
mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or
is redeemable at the sole option of the holder thereof, in whole or in part, on
or prior to the final maturity date of the Securities.
"Disqualified Pops" means Pops (to the extent such Pops are included
in Net Company Pops) in those MSAs and RSAs in which the Company directly or
indirectly has an ownership interest in the entity licensed by the FCC to
operate a cellular telephone system in such MSAs and RSAs, to which entity a
Person other than the Company, a Wholly Owned Subsidiary of the Company or the
lender(s) under a Senior Secured Credit Facility as to which the Company or a
Wholly Owned Subsidiary of the Company is acting as the primary obligor or
guarantor of all obligations thereunder, as of the date of determination,
directly or indirectly provides debt financing.
Dollar or "$" means a dollar or other equivalent unit in such coin or
currency of the United States of America as at the time shall be legal tender
for the payment of public and private debts.
"EBITDA" means, for any Person, for any period, an amount equal to:
(A) the sum of (i) Consolidated Net Income (Loss) for such period,
plus (ii) the provision for taxes for such period based on income or profits to
the extent such income or profits were included in computing Consolidated Net
Income (Loss) and any provision for taxes utilized in computing net loss under
clause (i) hereof, plus (iii) Consolidated Interest Expense for such period,
plus (iv) depreciation for such period on a consolidated basis, plus (v)
amortization of intangibles for such period on a consolidated basis, plus (vi)
any other non-cash items reducing Consolidated Net Income (Loss) for such
period, all determined in accordance with GAAP consistently applied, minus
6
(B) the sum of (i) all non-cash items increasing Consolidated Net
Income for such period and (ii) interest income for such period, all for such
Person on a consolidated basis its determined in accordance with GAAP
consistently applied.
"Enforcement Notice" has the meaning specified in Section 1203.
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Exchangeable Stock" of any issuer means any Capital Stock which is
exchangeable or convertible into a debt security of such issuer or any of its
Subsidiaries.
"FCC" means the Federal Communications Commission.
"Financed Pops" means the sum of, without duplication, (i) Net Company
Pops, plus (ii) Secured Pops, minus (iii) Disqualified Pops.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Account Standards Board or in such other statements by such other
entity as approved by a significant segment of the accounting profession which
are in effect from time to time in the United States.
"Global Security", when used with respect to any Securities issued
hereunder, means a Security which is executed by the Company and authenticated
and delivered by the Trustee to the Depository or pursuant to the Depository's
instruction, all in accordance with this Indenture or Board Resolution and
pursuant to a Company Request, which shall be registered in the name of the
Depository or its nominee and which shall represent, and shall be denominated in
an amount equal to the aggregate principal amount of, all the then Outstanding
Securities or any portion thereof, in either case having the same terms,
including the same date or dates on which principal is due and interest rate or
method of determining interest.
"Guarantee" means, as applied to any obligation, (i) a guarantee
(other than by endorsement of negotiable instruments for collection in the
ordinary course of business), direct or indirect, in any manner, of any part or
all of such obligation and (ii) an agreement, direct or indirect, contingent or
otherwise, the practical effect of which is to assure in any way the payment or
performance (or payment of damages in the event of non-performance) of all or
any part of such obligation, including, without limiting the foregoing, the
payment of amounts drawn down by letters of credit.
"Guaranty" means the Amended and Second Restated Guaranty dated March
31, 1993, as amended by Amendment No. 1 thereto dated as of August 2, 1993 and
Amendment No. 2 thereto dated as of February 22, 1994, given by the Company for
National Bank for
7
Cooperatives (now known as CoBank, ACB) and any related security agreement, as
in effect or amended from time to time, including any and all refinancings,
modifications, replacements, renewals, restorations, deferrals, extensions,
substitutions, supplements or reissuances, including any agreement increasing
the amount of Indebtedness guaranteed thereunder or available to be guaranteed
thereunder, provided that on the date such Indebtedness is Incurred it would not
be prohibited by Section 1008.
"Holders", when used with respect to any Security, means in the case
of a Security the Person in whose name the Security is registered in the
Security Register.
"Incur" means, with respect to any Indebtedness or other obligation of
any Person, to create, issue, incur (by conversion, exchange or otherwise),
assume, Guarantee or otherwise become liable in respect of such Indebtedness or
other obligation or the recording, as required pursuant to GAAP or otherwise, of
any such Indebtedness or other obligation on the balance sheet of such Person
(and "Incurrence", "Incurred", "Incurrable" and "Incurring" shall have meanings
correlative to the foregoing); PROVIDED, HOWEVER, that a change in GAAP that
results in an obligation of such Person that exists at such time becoming
Indebtedness shall not be deemed an Incurrence of such Indebtedness.
Indebtedness otherwise Incurred by a Person before it becomes a Subsidiary of
the Company will be deemed to have been Incurred at the time it becomes such a
Subsidiary. Neither the accrual of interest (including the issuance of "pay in
kind" securities or similar instruments in respect of such accrued interest)
pursuant to the terms of Indebtedness incurred in compliance with Section 1008,
nor the accretion of original issue discount, nor the mere extension of the
maturity of any Indebtedness shall be deemed to be an Incurrence of
Indebtedness.
"Indebtedness" of a Person means, without duplication, (a) all debt of
such Person which is (i) for money borrowed or (ii) evidenced by a note or
similar instrument given in connection with the acquisition of any businesses,
properties or assets of any kind, but excluding any other trade accounts payable
or accrued liabilities arising in the ordinary course of business, (b)
Capitalized Lease Obligations, (c) Attributable Debt, (d) all obligations of
such Person under Interest Swap and Hedging Obligations, (e) Disqualified
Capital Stock of such Person, (f) any debt or obligation of others secured by a
Lien on the assets of such Person, whether or not such debt or obligation is
assumed or guaranteed by such Person, (g) any debt or obligations assumed or
guaranteed by such Person (but only to the extent assumed or guaranteed by such
Person) if the debt or obligation of the other Person is of the type referred to
in clause (a), (b), (c), (d), (e) and (h) amendments, renewals, extensions,
modifications and refundings of any debt or obligations referred to in clause
(a), (b), (c), (d) or (e). The outstanding principal amount on any date of any
Indebtedness issued with original issue discount is the face amount of such
Indebtedness less the remaining unamortized portion of the original issue
discount of such Indebtedness on such date. With respect to clause (e), the
amount of Indebtedness shall equal the liquidation preference.
8
"Indenture" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof.
"Intercompany Indebtedness" means (i) Indebtedness Incurred by the
Company or a Subsidiary from Cellular, Inc. Financial Corporation, (ii) loans
and advances from the Company to a Subsidiary made in the ordinary course of
business and (iii) loans and advances from the Company to a Wholly Owned
Subsidiary of the Company.
"Interest Payment Date" means the Stated Maturity of an installment of
interest on the Securities.
"Interest Swap and Hedging Obligations" means any obligations of any
Person pursuant to any interest rate swaps, caps, collars and similar
arrangements providing protection against fluctuations in interest rates. For
purposes of the Indenture, the amount of such obligations shall be the amount
determined in respect thereof as of the end of the then most recently ended
fiscal quarter of such Person, based on the assumption that such obligation had
terminated at the end of such fiscal quarter, and in making such determination,
if any agreement relating to such obligation provides for the netting of amounts
payable by and to such Person thereunder or if any such agreements provides for
the simultaneous payment of amounts by and to such Person, then in each such
case, the amount of such obligations shall be the net amount so determined, plus
any premium due upon default by such Person.
"Investment" means any transfer or delivery of cash, stock or other
property of value in exchange for Indebtedness, stock or other security or
ownership interest by way of loan, advance or capital contribution. The amount
of any non-cash Investment shall be the fair market value of such Investment, as
determined in good faith by management of the Company unless the fair market
value of such Investment exceeds $5 million, in which case such fair market
value shall also be determined in good faith by the Board of Directors or other
equivalent governing body of the Company at the time such Investment is made.
"Issue Date" means July __, 1995.
"Lien" means any mortgage, charge, pledge, lien (statutory or
otherwise), security interest, hypothecation or other encumbrance upon or with
respect to any property of any kind, real or personal, movable or immovable, now
owned or hereafter acquired.
"MSA" means a Metropolitan Statistical Area, as initially licensed by
the FCC.
"Net Company Pops" means the aggregate number of Pops in those MSAs
and RSAs in which the Company directly or indirectly has an ownership interest
in the entity licensed by the FCC to operate a cellular telephone system in
those MSAs or RSAs, multiplied by the Company's net ownership interest in such
entity.
9
"Net Proceeds Offer" has the meaning specified in Section 1012.
"Obligations" means all obligations for principal, premium, interest,
penalties, fees, indemnifications, reimbursements, damages and other liabilities
payable under the documentation governing any Indebtedness.
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, the President or a Vice President, and by the Treasurer, an Assistant
Treasurer, the Secretary or an Assistant Secretary, of the Company, and
delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Company, and who shall be acceptable to the Trustee.
"Outstanding", when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, EXCEPT:
(i) Securities theretofore cancelled by the Trustee or delivered to
the Trustee for cancellation;
(ii) Securities, or portions thereof, for whose payment or redemption
money in the necessary amount has been theretofore deposited with the
Trustee or any Paying Agent (other than the Company) in trust or set aside
and segregated in trust by the Company (if the Company shall act as its own
Paying Agent) for the holders of such Securities; PROVIDED that, if such
Securities are to be redeemed, notice of such redemption has been duly
given pursuant to this Indenture or provision therefor satisfactory to the
Trustee has been made;
(iii) Securities which have been paid pursuant to Section 305 or
in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any such
Securities in respect of which there shall have been presented to the
Trustee proof satisfactory to it that such Securities are held by a bona
fide purchaser in whose hands such Securities are valid obligations of the
Company; and
(iv) Securities, except to the extent provided in Sections 1502 and
1503, with respect to which the Company has effected defeasance and/or
covenant defeasance as provided in Article Fifteen;
PROVIDED, HOWEVER, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Securities owned
by the Company or any other obligor upon the Securities or any Affiliate of the
Company or of such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be protected
in relying upon any such request, demand, authorization, direction, notice,
consent or waiver, only Securities which the Trustee knows to be so owned shall
be so disregarded. Securities so
10
owned which have been pledged in good faith may be regarded as Outstanding if
the pledgee certifies to the Trustee that it has the right so to act with
respect to such Securities and that the pledgee is not the Company or any other
obligor upon the Securities or any Affiliate of the Company or of such other
obligor.
"Pari Passu Indebtedness" means any Indebtedness of the Company that
is PARI PASSU in right of payment to the Securities.
"Paying Agent" means any Person authorized by the Company to pay the
principal of or premium or interest on any Securities on behalf of the Company.
"Permitted Indebtedness" means (i) the Securities issued pursuant to
this Indenture in an aggregate principal amount not to exceed $125 million, (ii)
Indebtedness of the Company and its Subsidiaries outstanding on the Issue Date
reduced by the amount of any scheduled amortization payments or mandatory
prepayments when actually paid or permanent reductions thereon, (iii)
Indebtedness Incurred under or pursuant to the Credit Agreements in an aggregate
principal amount at any time outstanding not to exceed $165 million, LESS the
amount of Indebtedness under the Credit Agreements exchanged, extended,
refinanced, renewed, replaced, substituted for or with the proceeds of
Indebtedness Incurred pursuant to clause (v) below, (iv) additional Indebtedness
incurred for any purpose not to exceed, at any time outstanding, $20 million (v)
Indebtedness created, Incurred, issued, assumed or given in exchange for, or the
proceeds of which are used substantially concurrently to, extend, refinance,
renew, replace, substitute or refund such Indebtedness, including any additional
Indebtedness Incurred to pay premiums and fees in connection therewith (the
"Refinancing Indebtedness"); provided that (A) the principal amount of such
Refinancing Indebtedness shall not exceed the outstanding principal amount of
Indebtedness so extended, refinanced renewed replaced, substituted or refunded
plus any amounts Incurred to pay premiums and fees in connection therewith; and
(B) if the Weighted Average Life to Maturity of the Indebtedness so extended,
refinanced, renewed, replaced, substituted or refunded is equal to or greater
than the Weighted Average Life to Maturity of the Securities, then the
Refinancing Indebtedness shall have no installments of principal (or redemption
payment) scheduled to come due on or prior to the Stated Maturity of the
Securities, provided that subclause (B) of this clause (v) will not apply to any
refunding or refinancing of the Credit Agreements and (vi) Intercompany
Indebtedness.
"Permitted Investments" means in the case of the Company or its
Subsidiaries, (i) an Investment related to the business of the Company and its
Subsidiaries as it is conducted on the Issue Date, including, but not limited
to, joint ventures existing on the Issue Date, (ii) Investments in the Company
by any Subsidiary or Investments by the Company or any Subsidiary (including
acquisitions) in any other Person, if after giving effect of any such
Investment, such Person would be a Wholly Owned Subsidiary of the Company, (iii)
Investments in cash and Cash Equivalents, and (iv) Investments in Productive
Assets.
"Person" means an individual, partnership, corporation, unincorporated
organization, trust or joint venture, or a governmental agency or political
subdivision thereof.
11
"Place of Payment" has the meaning specified in Section 301.
"Pops" means the estimated total population of an MSA or a RSA, based
upon the most recently available Strategic Marketing Inc. population estimates
or, if Strategic Marketing Inc. no longer publishes such information, other
similar market service of general acceptance in the cellular telephone industry.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 305 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"Preferred Stock" means, with respect to any Person, any and all
shares, interests, participations or other equivalents (however designated) of
such Person's preferred or preference stock whether now outstanding or issued
after the Issue Date, and including, without limitation, all classes and series
of preferred or preference stock of such Person.
"Productive Assets" means assets (including Capital Stock) of a kind
used or usable in the business of the Company and its Subsidiaries as it is
conducted on the Issue Date.
"Purchase Money Obligations" means Indebtedness of any Person secured
by Liens (i) on property purchased, acquired or constructed after the Issue Date
and used in the ordinary course of business and (ii) securing the payment of all
or any part of the purchase price or construction cost of such assets and
limited to the property so acquired and improvements thereof; PROVIDED THAT the
aggregate principal amount of Indebtedness secured thereby shall not, at the
time such Indebtedness is Incurred, exceed 100% of the purchase price to such
Person of the assets subject to such Lien .
"Qualified Capital Stock" means any stock that is not Disqualified
Capital Stock.
"Redemption Date", when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"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.
"Regular Record Date" for the interest payable on any Interest Payment
Date means the or (whether or not a Business Day),
as the case may be, next preceding such Interest Payment Date.
"Repurchase Date", when used with respect to any Security to be
repurchased, means the date that is 45 days after the date that the Company
gives notice of the Change in Control relating to such Repurchase Date.
12
"Required Filing Dates" has the meaning specified in Section 1011.
"Responsible Officer", when used with respect to the Trustee, means
any officer of the Trustee in its corporate trust department or similar group
administering the trusts hereunder and also means, with respect to a particular
corporate trust matter, any other officer to whom such matter is referred
because of his or her knowledge of and familiarity with the particular subject.
"RSA" means a Rural Service Area, as initially licensed by the FCC.
"Sale and Leaseback Transaction" of any Person means any direct
arrangement with any other Person or to which such other Person is a party
providing for the leasing by such Person of any property, whether owned by such
Person at the Issue Date or later acquired, which has been or is to be sold or
transferred by such Person to such other Person or to any other Person from whom
funds have been or are to be advanced by such other Person on the security of
such property. The Stated Maturity of such arrangement shall be the date of the
last payment of rent or any other amount due under such arrangement prior to the
first date on which such arrangement may be terminated by the lessee without
payment of a penalty.
"Securities Act" means the Securities Act of 1933, as amended.
"Secured Pops" means the aggregate number of Pops in those MSAs and
RSAs in which the Company directly or indirectly has an ownership interest in
the entity licensed by the FCC to provide cellular telephone service in such
MSAs and RSAs and to which entity, as of the date of determination, any of (i)
the Company, (ii) a Wholly Owned Subsidiary of the Company or (iii) the
lender(s) pursuant to a Senior Secured Credit Facility pursuant to which the
Company or a Wholly Owned Subsidiary of the Company is the primary obligor or
guarantor of all obligations thereunder, directly or indirectly provides
financing, and in which, in each case, all or substantially all of the assets
(except assets which may be encumbered by Purchase Money Obligations) are
pledged to the Company, a Wholly Owned Subsidiary of the Company or such
lender(s) on a perfected first priority basis.
"Security Register and Security Registrar" have the respective
meanings specified in Section 304.
"Senior Indebtedness" means all amounts payable under (a) the Credit
Agreements; (b) the Company's obligations under the Guaranty; (c) Capitalized
Lease Obligations of the Company; (d) Attributable Debt and (e) all other
Indebtedness of the Company whether outstanding on the Issue Date or thereafter
created, incurred or assumed, other than (i) the Securities, and (ii) any
Indebtedness which provides or in respect of which any instrument creating or
evidencing such Indebtedness or pursuant to which the same is outstanding it is
provided that such Indebtedness is not superior in right of payment to the
Securities. Notwithstanding anything to the contrary in the foregoing, Senior
Indebtedness shall not include (i) Indebtedness that is represented by
Disqualified Capital Stock, (ii) any liability for federal,
13
state, local or other taxes owed or owing by the Company, (iii) Indebtedness of
the Company to any Subsidiary or other Affiliate of the Company, except for any
such Indebtedness that is pledged to secure Indebtedness Incurred pursuant to
the Credit Agreements, (iv) trade payables, (v) Indebtedness incurred in
violation of the Indenture (other than Indebtedness outstanding under a Senior
Secured Credit Facility), and (vi) Indebtedness which when incurred is without
recourse to the Company or any Subsidiary.
"Senior Secured Credit Facility" shall mean the Amended and Second
Restated Loan Agreement for RSAs, dated as of March 31, 1993 as amended by
Amendment No. 1 thereto dated as of August 2, 1993 and Amendment No. 2 thereto
dated as of February 22, 1994 between Cellular, Inc. Financial Corporation and
National Bank for Cooperatives (now known as CoBank, ACB) and the Amended and
Second Restated Loan Agreement for MSAs dated as of March 31, 1993 as amended by
Amendment No. 1 thereto dated as of August 2, 1993 and Amendment No. 2 thereto
dated as of February 22, 1994 between Cellular, Inc. Financial Corporation and
National Bank for Cooperatives (now known as CoBank, ACB) and any related notes,
security agreements, letters of credit, as such documents may be amended,
supplemented or modified from time to time and any successor senior secured
credit agreement that may be entered into by the Company or the Subsidiaries.
"Special Record Date" for the payment of any Defaulted Interest means
a date fixed by the Trustee pursuant to Section 306.
"Stated Maturity", when used with respect to any Security, any other
Indebtedness or any installment of interest thereon, means the date specified in
such Security or Indebtedness as the fixed date on which the principal of such
Security or such installment of interest is due and payable.
"Subordinated Indebtedness" means Indebtedness of the Company,
subordinated in right of payment to the Securities.
"Subsidiary," with respect to any Person, means (i) any corporation at
least fifty percent of whose Capital Stock with voting power, under ordinary
circumstances, to elect directors is at the time, directly or indirectly, owned
by such Person, by such Person and one or more Subsidiaries of such Person or by
one or more Subsidiaries of such Person, or (ii) a partnership in which such
Person or a Subsidiary of such Person owns, at the time, a majority of the
general partner interests in such partnership or (iii) any other Person of which
at least a majority of the voting interest under ordinary circumstances is, at
the time, directly or indirectly owned by such Person.
"Surviving Person" has the meaning set forth in Section 701.
"Transfer Agent" means any Person, which may be the Company,
authorized by the Company to receive the Securities for exchange or registration
of transfer of Securities.
14
"Trust Indenture Act" means the United States Trust Indenture Act of
1939 as in force at the date as of which this instrument was executed, except as
provided in Section 807.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean such successor Trustee.
"U.S. Government Obligations" has the meaning set forth in Section
1504.
"Vendor Financing Indebtedness" means, with respect to any Person, an
obligation owed by such Person to a vendor of any property or materials used in
such Person's business, or to a bank or other financial institution that has
financed or refinanced the purchase or lease of such property or materials from
such a vendor, in each case solely in respect of the purchase price or lease of
such property or materials, or of any services provided by such vendor (and
only, in the case of any such obligation owed to such a bank or financial
institution, to the extent and for as long as such obligation is guaranteed by,
or secured by property or assets of such vendor).
"Vice President", when used with respect to the Company or the
Trustee, means any vice president, whether or not designated by a number or a
word or words added before or after the title "vice president."
"Weighted Average Life to Maturity" means, when applied to any
Indebtedness at any date, the number of years obtained by dividing (a) the then
outstanding aggregate principal amount of such Indebtedness into (b) the total
of the product obtained by multiplying (i) the amount of each then remaining
installment, sinking fund, serial maturity or other required payment of
principal, including payment at final maturity, in respect thereof, by (ii) the
number of years (calculated to the nearest one-twelfth) which will elapse
between such date and the making of such payment.
"Wholly Owned Subsidiary" means a Subsidiary of the Company, all of
the outstanding equity interests of which are owned by the Company or another
wholly owned Subsidiary.
SECTION FORM OF DOCUMENTS DELIVERED TO TRUSTEE.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
15
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificates or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 103. ACTS OF HOLDERS.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders of Securities may be embodied in and evidenced by (1) one or more
instruments of substantially similar tenor signed by such Holders in person or
by agent or proxy duly appointed in writing, (2) the record of Holders of
Securities voting in favor thereof, either in person or by proxies duly
appointed in writing, at any meeting of Holders of Securities duly called and
held in accordance with the provisions of Article Nine, or (3) a combination of
such instruments and any such record. Except as herein otherwise expressly
provided, such action shall become effective when such instrument or instruments
or record or both are delivered to the Trustee and, where it is hereby expressly
required, to the Company. Such instrument or instruments and record (and the
action embodied therein and evidenced thereby) are herein sometimes referred to
as the "Act" of the Holders of Securities signing such instrument or instruments
and so voting at such meeting. Proof of execution of any such instrument or of
a writing appointing any such agent or proxy, or of the holding by any Person of
a Security, shall be sufficient for any purpose of this Indenture and (subject
to Section 601) conclusive in favor of the Trustee and the Company if made in
the manner provided in this Section. The record of any meeting of Holders of
Securities shall be proved in the manner provided in Section 906.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to make acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where
such execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee deems sufficient.
16
(c) The principal amount and serial numbers of Securities held by any
Person and the date of his holding the same, shall be proved by the Security
Register.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Security shall bind every future Holder
of the same Security and the Holder of every Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustee or the
Company in reliance thereon, whether or not notation of such action is made upon
such Security.
SECTION 104. NOTICES, ETC., TO TRUSTEE AND COMPANY.
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other document provided or permitted by this Indenture to
be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if first class postage prepaid in
writing and mailed to or with the Trustee at its Corporate Office,
Attention: Corporate Trust Department, or telecopied and confirmed by mail,
first-class postage prepaid as provided above, or by overnight delivery, to
the Trustee at Corporate Trust Department, American Bank National
Association, 101 East Fifth Street, St. Paul, Minnesota 55101 telecopy:
(612-229-6415) or
(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, or
telecopied to: (303-694-3293) and confirmed by mail, first-class postage
prepaid, to the Company addressed to it at the address of its principal
office specified in the first paragraph of this instrument or at any other
address previously furnished in writing to the Trustee by the Company.
SECTION 105. NOTICE OF HOLDERS; WAIVER.
Except as otherwise expressly provided herein, where this Indenture
provides for notice to Holders of Securities of any event, such notice shall be
sufficiently given to Holders of Securities if in writing and mailed, first-
class postage prepaid, to each Holder of a Security affected by such event, at
his address as it appears in the Security Register, not later than the latest
date, and not earlier than the earliest date, prescribed for the giving of such
notice.
In any case where notice to Holders of Securities is given by mail,
neither the failure to mail such notice, nor any defect in any notice so mailed,
to any particular Holder of a Security shall affect the sufficiency of such
notice with respect to other Holders of Securities.
17
In case by reason of the suspension of regular mail service or by reason of any
other cause it shall be impracticable to give such notice by mail, then such
notification to Holders of Securities as shall be made with the approval of the
Trustee shall constitute a sufficient notification to such Holders for every
purpose hereunder.
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.
SECTION EFFECT OF HEADINGS AND TABLE OF CONTENTS.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
SECTION 107. SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether so expressed or not.
SECTION 108. SEPARABILITY CLAUSE.
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 109. BENEFITS OF INDENTURE.
Nothing in this Indenture or in the Securities, express or implied,
shall give to any Person, other than the parties hereto and their successors
hereunder, the holders of Senior Indebtedness and the Holders of Securities, any
benefit or any legal or equitable right, remedy or claim under this Indenture.
18
SECTION 110. GOVERNING LAW.
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS
MADE AND PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF
CONFLICTS OF LAW. THE COMPANY HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF
ANY NEW YORK STATE COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW
YORK OR ANY FEDERAL COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW
YORK IN RESPECT OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO
THIS INDENTURE AND THE SECURITIES AND IRREVOCABLY ACCEPTS FOR ITSELF AND IN
RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, JURISDICTION OF THE
AFORESAID COURTS. THE COMPANY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT IT MAY
EFFECTIVELY DO SO UNDER APPLICABLE LAW, TRIAL BY JURY AND ANY OBJECTION WHICH IT
MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH SUIT, ACTION OR
PROCEEDING BROUGHT IN ANY SUCH COURT AND ANY CLAIM THAT ANY SUCH SUIT, ACTION OR
PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
NOTHING HEREIN SHALL AFFECT THE RIGHT OF THE TRUSTEE OR ANY HOLDER OF SECURITIES
TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL
PROCEEDINGS OR OTHERWISE PROCEED AGAINST THE COMPANY IN ANY OTHER JURISDICTION.
SECTION 111. LEGAL HOLIDAYS.
In any case where any Interest Payment Date, Redemption Date or
Repurchase Date or Stated Maturity of any Security shall not be a Business Day
at any Place of Payment, then (notwithstanding any other provision of this
Indenture or of the Securities) payment of interest or principal (and premium,
if any) of the Securities need not be made at such Place of Payment on such
date, but may be made on the next succeeding Business Day at such Place of
Payment with the same force and effect as if made on the Interest Payment Date
or Redemption Date or Repurchase Date, or at the Stated Maturity, provided that
no interest shall be paid on such Business Day for the intervening period.
SECTION 112. COMPLIANCE CERTIFICATES AND OPINIONS.
Upon any application or request by the Company to the Trustee to take
any action under any provision of this Indenture, the Company shall furnish to
the Trustee an Officers' Certificate stating that all conditions precedent, if
any, provided for in this Indenture relating to the proposed action have been
complied with and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent, if any, have been complied with, except
19
that in the case of any such application or request as to which the furnishing
of such documents is specifically required by any provision of this Indenture
relating to such particular application or request, no additional certificate or
opinion need be furnished.
Unless expressly otherwise specified with respect to any certificate
or opinion provided for in this Indenture, every certificate or opinion with
respect to compliance with a condition or covenant provided for in this
Indenture shall include:
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he
has made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(4) a statement as to whether or not, in the opinion of each
such individual, such condition or covenant has been complied with.
SECTION 113. CONFLICT WITH TRUST INDENTURE ACT.
If any provision hereof limits, qualifies or conflicts with another
provision hereof which is required to be included in this Indenture by any of
the provisions of the Trust Indenture Act, such required provision shall
control.
SECTION 114. NO RECOURSE AGAINST OTHERS.
A director, officer, employee, stockholder or incorporator, as such,
of the Company shall not have any liability for any obligations of the Company
under the Securities or this Indenture or for any claim based on, in respect of
or by reason of such obligations or their creations. Each Holder by accepting a
Security waives and releases all such liability. Such waiver and release are
part of the consideration for the issuance of the Securities.
20
ARTICLE TWO
Security Form
SECTION 201. FORM GENERALLY.
The Securities shall be in substantially the form set forth in this
Article, with such appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Indenture, and may have such
letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with the rules of any
securities exchange or as may, consistently herewith, be determined by the
officers executing such Securities, as evidenced by their execution of the
Securities.
The Trustee's certificate of authentication shall be in substantially
the form set forth in this Article.
Repurchase notices shall be in substantially the form set forth in
this Article.
The Securities shall be printed, lithographed or engraved or produced
by any combination of these methods or may be produced in any other manner
permitted by the rules of any securities exchange on which the Securities may be
listed, all as determined by the officers executing such Securities, as
evidenced by their execution thereof.
21
SECTION 202. FORM OF SECURITIES.
Form of Face of Security
COMMNET CELLULAR INC.
______% Subordinated Note due 2005
No. _____________________ $______________________
COMMNET CELLULAR INC., a corporation duly organized and existing under
the laws of Colorado (herein called the "Company," which term includes any
successor Person under the Indenture hereinafter referred to), for value
received, hereby promises to pay to __________________________________, or
registered assigns, the principal sum of __________________________________
Dollars on ___________, 2005, and to pay interest thereon on ____, 199X and
semi-annually thereafter on and in each year, from ____,
199X, or from the most recent Interest Payment Date to which interest has been
paid or duly provided for, at the rate of % per annum; PROVIDED, HOWEVER, that
in the event that the Conversion Condition is satisfied on or prior to the
Convertible Redemption Date, from and after the Convertible Redemption Date, the
Securities will bear interest at the rate of % per annum, until the principal
hereof is paid or duly provided for; and (to the extent lawful) to pay on demand
interest on any overdue interest at the rate borne by the Securities from the
date on which such overdue interest becomes payable to the date payment of such
interest has been made or duly provided for.
The interest so payable, and punctually paid or duly provided for, on
any Interest Payment Date will, as provided in such Indenture be paid to the
Person in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest, which shall be the ___________ or _________ (whether or not a Business
Day), next preceding such Interest Payment Date. Interest shall be computed on
the basis of a 360-day year of twelve 30-day months. Except as otherwise
provided in the Indenture, any such interest not so punctually paid or duly
provided for will forthwith cease to be payable to the Holder on such Regular
Record Date and may either be paid to the Person in whose name this Security (or
one or more Predecessor Securities) is registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest to be fixed by
the Trustee, notice whereof shall be given to Holders of Securities not less
than 15 days prior to such Special Record Date, or be paid at any time in any
other lawful manner.
Payment of the principal of (and premium, if any) on this Security
will be made at the office of the Trustee, or at such other office or agency of
the Company maintained for that purpose in the Borough of Manhattan, The City of
New York, in such coin or currency of the United States of America as at the
time of payment is legal tender for payment of public and private debts;
PROVIDED, HOWEVER, that at the option of the Company payment of interest on this
22
Security may be made by check mailed to the address of the Person entitled
thereto as such address shall appear in the Security Register.
Except as specifically provided herein and in the Indenture, the
Company shall not be required to make any payment with respect to any tax,
assessment or other governmental charge imposed by any government or any
political subdivision or taxing authority thereof or therein.
Reference is hereby made to the further provisions of this Security
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated as of _________________
COMMNET CELLULAR INC.
By
----------------------------
Name:
Title:
(Corporate Seal)
Attest:
- -----------------------------
Name:
Title:
23
[Form of Reverse]
This Security is one of a duly authorized issue of Securities of the
Company designated as its % Subordinated Notes due 2005 (herein called the
"Securities"), limited in aggregate principal amount to $125,000,000 issued and
to be issued under an Indenture, dated as of ___________, 1995 (herein called
the "Indenture"), between the Company and American Bank National Association, as
Trustee (herein called the "Trustee", which term includes any successor trustee
under the Indenture), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights, limitations
of rights, duties and immunities thereunder of the Company, the Trustee, the
holders of Senior Indebtedness and the Holders of the Securities and the terms
upon which the Securities are, and are to be, authenticated and delivered. In
the event that the Conversion Condition is satisfied, from and after the
Convertible Redemption Date, the Securities shall be known and designated as the
" % Subordinated Notes due 2005" of the Company and a notation shall be made
hereon or an exchange hereof will be made by the Trustee in accordance with the
Indenture. The Securities are issuable as registered Securities, without
coupons, in denominations of $1,000 and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations therein set forth,
Securities are exchangeable for a like aggregate principal amount of Securities
of any authorized denominations as requested by the Holder surrendering the same
upon surrender of the Security or Securities to be exchanged, at the office or
agency of the Company in the Borough of Manhattan, The City of New York. The
Company initially appoints the agent of the Trustee, to serve as such office.
The Securities may be redeemed at the Company's option upon notice as
described in the Indenture, in whole or in part from time to time, at any time
on or after ___________, 2000 at the following Redemption Prices (expressed as a
percentage of the principal amount) if redeemed during the 12-month period
beginning ___________ on the year indicated, plus, in each case, accrued
interest thereon to the date of redemption:
Redemption
Year Price
---- -----------
2000 %
2001 %
2002 %
and thereafter at a Redemption Price equal to 100% of the principal amount
redeemed.
If at any time there occurs a Change in Control (as defined in the
Indenture) of the Company, then each Holder of a Security shall have the right,
at the Holder's option, to require the Company to repurchase all or any portion
of such Holder's Securities (in $1,000 denominations or integral multiples
thereof), on the date (the "Repurchase Date") that is 45 days after the date of
the Company Notice (as defined in the Indenture) of such Change in Control, at a
purchase price equal to 101% of the principal amount of Securities to be
repurchased (the "Repurchase Price"), together with accrued interest to the
Repurchase Date.
24
To exercise a repurchase right, a Holder shall deliver to the Company
(or an agent designated by the Company in the Company Notice) on or before the
30th day after the date of the Company Notice the Securities to be so
repurchased duly endorsed for transfer to the Company and accompanied by the
repurchase notice hereon duly completed and executed. Such written notice shall
be irrevocable.
The Securities are not subject to any sinking fund.
In the case of a Change in Control, notice of the occurrence of the
Change in Control and of the repurchase rights arising in connection therewith
shall be given, in the manner prescribed above for notices of redemption, on or
before the t day after the occurrence of a Change in Control.
The Company shall not be required (i) to issue, register the transfer
of or exchange any Security during a period beginning at the opening of business
15 days before any selection of Securities to be redeemed and ending at the
close of business on the day of the mailing of the relevant notice of
redemption, 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.
In the event of redemption or repurchase of this Security in part
only, a new Security or Securities for the unredeemed or unrepurchased portion
hereof will be issued in the name of the Holder hereof upon the cancellation
hereof.
The indebtedness evidenced by this Security is, to the extent provided
in the Indenture, subordinate and subject in right of payment to the prior
payment in full of all Senior Indebtedness, and this Security is issued subject
to the provisions of the Indenture with respect thereto. Each Holder of this
Security, by accepting the same, (a) agrees to and shall be bound by such
provisions, (b) authorizes and directs the Trustee on his behalf to take such
action as may be necessary or appropriate to effectuate the subordination so
provided and (c) appoints the Trustee his attorney-in-fact for any and all such
purposes.
If an Event of Default shall occur and be continuing, the principal of
all the Securities may be declared due and payable in the manner and with the
effect provided in the Indenture.
The Indenture contains provisions for defeasance at any time of the
entire indebtedness of this Security or certain restrictive covenants and Events
of Default with respect to this Security, in each case upon compliance with
certain conditions set forth in the Indenture.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereto and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities under the Indenture at
any time by the Company and the Trustee with the consent of the Holders of a
majority in aggregate principal amount of the Securities at the
25
time Outstanding. The Indenture also contains provisions permitting the Holders
of specified percentages in aggregate principal amount of the Securities at the
time Outstanding, on behalf of the Holders of all the Securities, to waive
compliance by the Company with certain provisions of the Indenture and certain
past defaults under the Indenture and their consequences. Any such consent or
waiver by the Holder of this Security shall be conclusive and binding upon such
Holder and upon all future Holders of this Security and of any Security issued
upon the registration of transfer hereof or in exchange herefor or in lieu
hereof, whether or not notation of such consent or waiver is made upon this
Security.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of (and premium, if any) and
interest on this Security at the times, places and rate, and in the coin or
currency, herein prescribed or to repurchase this Security as provided in the
Indenture.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of Securities is registrable in the Security
Register, upon surrender of a Security for registration of transfer at the
office or agency of the Company in the Borough of Manhattan, The City of New
York, or subject to any laws or regulations applicable thereto and to the right
of the Company to terminate the appointment of any such Transfer Agent, at the
offices of the Transfer Agent described herein, or at such other offices or
agencies as the Company may designate, duly endorsed by, or accompanied by a
written instrument of transfer in form satisfactory to the Company and the
Security Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Securities, of authorized
denominations and for the same aggregate principal amount, will be issued to the
designated transferee or transferees.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
The Company, the Trustee and any agent of the Company or the Trustee
may treat, prior to due presentment for registration of transfer, the Person in
whose name a Security is registered as the owner thereof for all purposes,
whether or not the Security be overdue, and neither the Company, the Trustee nor
any such agent shall be affected by notice to the contrary.
A director, officer, employee, stockholder or incorporator, as such,
of the Company shall not have any liability for any obligations of the Company
under the Securities or the Indenture or for any claim based on, in respect of
or by reason of such obligations or their creation. Each Holder of this
Security by accepting this Security waives and releases all such liability. The
waiver and release are part of the consideration for the issuance of this
Security.
26
The Indenture and the Securities shall be governed by and construed in
accordance with the laws of the State of New York as applied to contracts made
and performed within the State of New York, without regard to principles of
conflicts of law.
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
SECTION 203. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
This is one of the Securities referred to in the within-mentioned
Indenture.
AMERICAN BANK NATIONAL ASSOCIATION,
As Trustee
By________________________
Authorized Signatory
SECTION 204. FORM OF REPURCHASE NOTICE.
REPURCHASE NOTICE
The undersigned Holder of this Security hereby irrevocably exercises
the right of repurchase of this Security in accordance with the terms of the
Indenture referred to in this Security, and directs the Company to repurchase
the within Security pursuant and subject to its terms at a price equal to 101%
of the principal amount of the portion of this Security to be repurchased,
together with interest to the Repurchase Date to the undersigned. If Securities
are to be registered in the name of a Person other than the undersigned, the
undersigned will pay all transfer taxes payable with respect thereto.
For this Security to be repurchased the Holder must deliver this
Security with this "Repurchase Notice" form duly completed to the Company (or an
agent of the Company designated by the Company in the Company Notice) on or
before the 30th day after the date of mailing of the Company Notice (or if such
30th day is not a Business Day, the next succeeding Business Day).
Dated:___________________________ Signature:____________________________
(Sign exactly as your name appears on
the front of this Security)
27
Signature Guarantee*: _________________________________
* Participant in a recognized Signature Guarantee Medallion Program (or other
such program acceptable to the Trustee)
28
If Securities are to be registered If only a portion of the Securities
in the name of a Person other than is to be repurchased, please
the Holder, please print such indicate:
Person's name, address, and tax
identification number, if any: _______ 1. Principal amount to be
______________________________________ repurchased:__________
______________________________________ $__________
______________________________________ 2. Amount and denomination of
Securities represented
unrepurchased principal
amount to be issued:
Amount: $_________
Denominations:
$_________
($1,000 or an integral
multiple thereof)
SECTION 205. SECURITIES ISSUABLE IN THE FORM OF A GLOBAL SECURITY.
(a) If the Company shall establish that the Securities are to be
issued in whole or in part in the form of one or more Global Securities, then
the Company shall execute and the Trustee or its agent shall, in accordance with
Section 303 and the Company Order delivered to the Trustee or its agent
thereunder, authenticate and deliver, such Global Security or Securities, which
(i) shall represent, and shall be denominated in an amount equal to the
aggregate principal amount of, the Outstanding Securities to be represented by
such Global Security or Securities, or such portion thereof as the Company shall
specify in a Company Order, (ii) shall be registered in the name of the
Depository for such Global Security or Securities or its nominee, (iii) shall be
delivered by the Trustee or its agent to the Depository or pursuant to the
Depository's instruction and (iv) shall bear a legend substantially to the
following effect: "Unless this certificate is presented by an authorized
representative of the Depository to the Company or its agent for registration of
transfer, exchange, or payment, and any certificate issued is registered in the
name of the nominee of the Depository or in such other name as is requested by
an authorized representative of the Depository (and any payment is made to the
nominee of the Depository or to such other entity as is requested by an
authorized representative of the Depository), any transfer, pledge, or other use
hereof for value or otherwise by or to any person is wrongful inasmuch as the
registered owner hereof, the nominee of the Depository, has an interest herein."
(b) Notwithstanding any other provisions of this Section 205 or of
Section 304, and subject to the provisions of paragraph (c) below, unless the
terms of a Global Security expressly permit such Global Security to be exchanged
in whole or in part for individual Securities, a Global Security may be
transferred, in whole but not in part and in the manner provided in Section 304,
only to a nominee of the Depository for such Global Security, or to the
Depository, or a successor Depository for such Global Security selected or
approved by the Company, or to a nominee of such successor Depository.
29
(c) (i) If at any time the Depository for a Global Security notifies
the Company that it is unwilling or unable to continue as Depository for
such Global Security or if at any time the Depository for the Securities
for such series shall not longer be eligible or in good standing under the
Exchange Act or other applicable statute or regulation, the Company shall
appoint a successor Depository with respect to such Global Security. If a
successor Depository for such Global Security is not appointed by the
Company within 90 days after the Company receives such notice or becomes
aware of such ineligibility, the Company will execute, and the Trustee or
its agent, upon receipt of a Company Request for the authentication and
delivery of individual Securities in exchange for such Global Security,
will authenticate and deliver, individual Securities of like tenor and
terms in an aggregate principal amount equal to the principal amount of the
Global Security in exchange for such Global Security.
(ii) The Company may at any time and in its sole discretion determine
that the Securities or portion thereof issued in the form of one or more
Global Securities shall no longer be represented by such Global Security or
Securities. In such event the Company will execute, and the Trustee, upon
receipt of a Company Request for the authentication and delivery of
individual Securities in exchange in whole or in part for such Global
Security, will authenticate and deliver individual Securities of like tenor
and terms in definitive form in an aggregate principal amount equal to the
principal amount of such Global Security or Securities or portion thereof
in exchange for such Global Security or Securities.
(iii) If specified by the Company with respect to Securities issued
in the form of a Global Security, the Depository for such Global Security
may surrender such Global Security in exchange in whole or in part for
individual Securities of such series of like tenor and terms in definitive
form on such terms as are acceptable to the Company and such Depository.
Thereupon the Company shall execute, and the Trustee or its agent shall
authenticate and deliver, without service charge, (1) to each Person
specified by such Depository a new Security or Securities of like tenor and
terms and of any aggregate principal amount equal to and in exchange for
such Person's beneficial interest as specified by such Depository in the
Global Security; and (2) to such Depository a new Global Security of like
tenor and terms and in an authorized denomination equal to the difference,
if any, between the principal amount of the surrendered Global Security and
the aggregate principal amount of Securities delivered to Holders thereof.
(iv) In any exchange provided for in any of the preceding three
paragraphs, the Company will execute and the Trustee or its agent will
authenticate and deliver individual Securities in definitive registered
form in authorized denominations. Upon the exchange of the entire
principal amount of a Global Security for individual Securities, such
Global Security shall be cancelled by the Trustee or its agent. Except as
provided in the preceding paragraph, Securities issued in exchange for a
Global Security pursuant to this Section shall be registered in such names
and in such authorized denominations as the Depository for such Global
Security, pursuant to instructions from its direct or indirect
30
participants or otherwise, shall instruct the Trustee or the Security
Registrar. The Trustee or the Security Registrar shall deliver at its
Corporate Office such Securities to the persons in whose names such
Securities are so registered.
ARTICLE THREE
The Securities
SECTION 301. TITLE AND TERMS.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is limited to $125 million
except for Securities authenticated and delivered upon registration of transfer
of, or in exchange for, or in lieu of, other Securities pursuant to Section 304,
305, 805 or 1108.
The Securities shall be known and designated as the " %
Subordinated Notes due 2005" of the Company; provided, however, that in the
event the Conversion Condition is satisfied, from and after the Convertible
Redemption Date the Securities shall be known and designated as the " %
Subordinated Notes due 2005" of the Company. The Stated Maturity of the
Securities shall be ___________, 2005, and they shall bear interest at the rate
of ______% per annum (i) with respect to Securities issued on the Issue Date,
from _______, 1995 or the most recent Interest Payment Date on which interest
has been paid or duly provided for and (ii) with respect to any subsequently
issued Securities, from the most recent Interest Payment Date on which interest
has been paid or provided for with respect to the Securities issued on the Issue
Date, payable semi-annually in arrears on _______ and ___________, until the
principal thereof is paid or made available for payment; PROVIDED, HOWEVER, that
in the event that the Conversion Condition is satisfied on or prior to the
Convertible Redemption Date, from and after the Convertible Redemption Date, the
Securities will bear interest at the rate of % per annum.
The principal of (and premium, if any) and interest on the Securities
shall be payable as provided in the form of Securities set forth in Section 202
(any city in which any Paying Agent is located being herein called a "Place of
Payment").
The Securities shall be redeemable as provided in Article Eleven.
The Securities shall be subordinated in right of payment to Senior
Indebtedness as provided in Article Twelve.
The Securities shall be repurchased by the Company if required by the
Holders thereof, as provided in Article Fourteen.
31
SECTION 302. DENOMINATIONS.
The Securities shall be issuable in fully registered form, without
coupons, in denominations of $1,000 and any integral multiple thereof.
SECTION 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
The Securities shall be executed on behalf of the Company by its
Chairman of the Board, its President or one of its Vice Presidents, under its
corporate seal reproduced thereon attested by its Secretary or one of its
Assistant Secretaries. The signature of any of these officers on the Securities
may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Company, shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities executed by the Company to
the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities; and the Trustee in accordance
with such Company Order shall authenticate and deliver such Securities as in
this Indenture provided and not otherwise.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or
be valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such Security
has been duly authenticated and delivered hereunder.
SECTION 304. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE.
The Company shall cause to be kept at the Corporate Office of the
Trustee a register (the "Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration of Securities and of transfers of Securities. The Trustee is
hereby appointed "Security Registrar" for the purpose of registering Securities
and transfers of Securities as herein provided.
Subject to Section 205 upon surrender for registration of transfer of
any Security at an office or agency of the Company designated pursuant to
Section 1002 for such purpose or
32
at the Corporate Office of the Trustee, the Company shall execute, and the
Trustee shall authenticate and deliver, in the name of the designated transferee
or transferees, one or more new Securities of any authorized denominations and
of a like aggregate principal amount.
Subject to Section 205 at the option of the Holder, Securities may be
exchanged for other Securities of any authorized denominations and of a like
aggregate principal amount, upon surrender of the Securities to be exchanged at
any such office or agency. Whenever any Securities are so surrendered for
exchange, the Company shall execute, and the Trustee shall authenticate and
deliver, the Securities which the Holder making the exchange is entitled to
receive.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer
or for exchange shall (if so required by the Company or the Trustee) be duly
endorsed and accompanied by such other documentation as the Company or the
Security Registrar may reasonably require, or be accompanied by a written
instrument of transfer in form satisfactory to the Company and the Security
Registrar duly executed, by the Holder thereof or his attorney only authorized
in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 805 or 1103 not involving any transfer.
The Company shall not be required (i) to issue, register the transfer
of or exchange any Security during a period beginning at the opening of business
15 days before any selection of Securities to be redeemed and ending at the
close of business on the day of mailing of the relevant notice of redemption, 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.
SECTION 305. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES.
If any mutilated Security is surrendered to the Trustee, the Company
shall execute and the Trustee shall authenticate and deliver in exchange
therefor a new Security of like tenor and principal amount and bearing a number
not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any
Security, and (ii) such security or indemnity
33
as may be required by them to save each of them and any agent of either of them
harmless, then, in the absence of notice to the Company or the Trustee that such
Security has been acquired by a bona fide purchaser, the Company shall execute
and upon its request the Trustee shall authenticate and deliver, in lieu of any
such destroyed, lost or stolen Security, a new Security of like tenor and
principal amount and bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new security, pay such Security on the Payment Date.
Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security issued pursuant to this Section in lieu of any
destroyed, lost or stolen Security shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Security shall be at any time enforceable by anyone, and such new
Security shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Securities duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities.
SECTION 306. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.
Interest on any Security which is payable, and is punctually paid or
duly provided for, on any Interest Payment Date shall be paid to the Person in
whose name that Security (or one or more Predecessor Securities) is registered
at the close of business in the Regular Record Date for such interest.
If the Company defaults in a payment of interest on the Securities, it
shall pay the defaulted interest, plus (to the extent lawful) any interest
payable on the defaulted interest, to the persons who are Holders on a
subsequent Special Record Date, which date shall be the 15th day next preceding
the date fixed by the Company for the payment of defaulted interest, whether or
not such day is a Business Day. At least 15 days before the subsequent Special
Record Date, the Company shall mail to each Holder with a copy to the Trustee a
notice that states the subsequent Special Record Date, the payment date and the
amount of defaulted interest, and interest payable on such defaulted interest,
if any, to be paid.
34
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
SECTION 307. PERSONS DEEMED OWNERS.
The Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name the Security is registered as the owner of
the Security for the purpose of receiving payment of principal of (and premium,
if any) and (subject to Section 306) interest on such Security and for all other
purposes whatsoever, whether or not such Security be overdue, and neither the
Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
SECTION 308. CANCELLATION.
All Securities surrendered for payment, redemption, registration of
transfer or exchange shall, if surrendered to any Person other than the Trustee,
be delivered to the Trustee and shall be promptly cancelled by it. The Company
may at any time deliver to the Trustee for cancellation any Securities
previously authenticated and delivered hereunder which the Company may have
acquired in any manner whatsoever, and all Securities so delivered shall be
promptly cancelled by the Trustee. No Securities shall be authenticated in lieu
of or in exchange for any Securities cancelled as provided in this Section,
except as expressly permitted by this Indenture. All cancelled Securities held
by the Trustee may be destroyed and the Trustee shall furnish to the Company a
certificate with respect to any such destruction upon the written request of the
Company.
SECTION 309. COMPUTATION OF INTEREST.
Interest on the Securities shall be computed on the basis of a 360-day
year comprised of twelve 30-day months.
SECTION 310. CUSIP NUMBERS.
The Company in issuing Securities under the Indenture may use a
"CUSIP" number (if then generally in use) and, if so, the Trustee shall use
"CUSIP" numbers in any repurchase notice as a convenience to Holders; PROVIDED,
HOWEVER, 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 a redemption and that reliance may be placed only on the other
identification numbers printed on the Securities, and any such redemption shall
not
35
be affected by any defect in or omission of such numbers. The Company shall use
its best efforts to cause any Securities issued pursuant to this Indenture after
the Issue Date to bear the same "CUSIP" number as the Securities issued on the
Issue Date.
ARTICLE FOUR
Satisfaction and Discharge
SECTION 401. SATISFACTION AND DISCHARGE OF INDENTURE.
This Indenture shall cease to be of further effect (except as to any
surviving rights of registration of transfer or exchange of Securities herein
expressly provided for), and the Trustee, on demand of and at the expense of the
Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture, when
(1) either
(A) all Securities theretofore authenticated and delivered (other
than (i) Securities which have been destroyed, lost or stolen and which
have been replaced or paid as provided in Section 305 and (ii) Securities
for whose payment money has theretofore been deposited in trust or
segregated and held in trust by the Company and thereafter repaid to the
Company or discharged from such trust, as provided in Section 1003); or
(B) all such Securities not theretofore delivered to the Trustee for
cancellation
(i) have become due and payable, or
(ii) will become due and payable at their
Stated Maturity within one year, or
(iii) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of the Company;
and the Company, in the case of (i), (ii) or (iii) above, has
irrevocably deposited or caused to be deposited with the Trustee as trust
funds in trust for the purpose an amount sufficient to pay and discharge
the entire indebtedness on such Securities not theretofore delivered to the
Trustee for cancellation, for principal (and premium, if any) and interest
to the date of such deposit (in the case of Securities which have become
due and payable) or to the Stated Maturity or Redemption Date, as the case
may be together with irrevocable instructions to the Trustee from the
Company directing
36
the Trustee to apply such funds to the payment thereof at maturity or
redemption, as the case may be;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers' Certificate and
an Opinion of Counsel, each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of this Indenture
have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 606, the obligations of
the Trustee to any Authenticating Agent under Section 611, and, if money shall
have been deposited with the Trustee pursuant to Subclause (B) of clause (1) of
this Section, the obligations of the Trustee under Section 402 and the last
paragraph of Section 1003 shall survive.
SECTION 402. APPLICATION OF TRUST MONEY.
Subject to the provisions of the penultimate paragraph of Section
1003, all money deposited with the Trustee pursuant to Section 401 shall be held
in trust and applied by it, in accordance with the provisions of the Securities
and this Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium, if
any) and interest for whose payment such money has been deposited with the
Trustee.
ARTICLE FIVE
Remedies
SECTION 501. EVENTS OF DEFAULT.
"Event of Default," wherever used herein, means any one of the
following events (whatever the reason for such Event of Default and whether it
shall be occasioned by the provisions of Article Twelve or 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):
(1) default in the payment of the principal of, or premium, if any,
on any of the Securities, when due and payable (at its Stated Maturity,
upon optional redemption, required repurchase or otherwise); or
37
(2) default in the payment of any installment of interest on any of
the Securities, when due and payable for 30 days; or
(3) (a) default in the performance, or breach, of any covenant or
warranty of the Company in this Indenture (other than a default in the
performance, or breach of a covenant or warranty which is specifically
dealt with in clause (1), (2) or in clause (b) of this clause (3)), and
continuance of such default or breach for a period of 30 days after there
has been given, by registered or certified mail, to the Company by the
Trustee or to the Company and the Trustee by the Holders of at least 25% in
principal amount of the then Outstanding Securities a written notice
specifying such default or breach and requiring it to be remedied and
stating that such notice is a "Notice of Default" hereunder; or (b) the
failure by the Company to comply with its obligations under Article Seven,
or a default on the applicable Repurchase Date, in the purchase of
Securities required to be purchased by the Company pursuant to the Company
Notice as to which an offer of repurchase has been mailed to Holders or the
failure to make the required repurchase offer as required hereunder; or
(4) a default or defaults under any mortgage, indenture or instrument
under which there may be issued or by which there may be secured or
evidenced any Indebtedness of the Company (or the payment of which is
guaranteed by the Company) whether such Indebtedness or Guarantee now
exists or is created after the date of this Indenture which default (a) is
caused by a failure to pay when due principal or interest on such
Indebtedness within the grace period provided in such Indebtedness (a
"Payment Default") or (b) results in the acceleration of such Indebtedness
prior to its maturity and, in each case, the principal amount of any such
Indebtedness, together with the principal amount of any other such
Indebtedness under which there has been a Payment Default or the maturity
of which has been so accelerated, aggregates $10 million and such Payment
Default or acceleration of Indebtedness has not been rescinded or annulled
within a period of 10 days after there has been given, by registered or
certified mail, to the Company by the Trustee or to the Company and the
Trustee by the Holders of at least 25% in principal amount of the then
Outstanding Securities a written notice specifying such default and
requiring the Company to cause such Payment Default to be discharged or
cause such acceleration to be rescinded or annulled and stating that such
notice is a "Notice of Default" hereunder; or
(5) one or more judgments in an aggregate amount in excess of $10
million shall have been rendered against the Company or any of its
Subsidiaries, and such judgments remain undischarged or unstayed for a
period of 60 days after such judgment or judgments become final and
nonappealable; or
(6) the entry by a court having jurisdiction in the premises of (A) a
decree or order for relief in respect of the Company in an involuntary case
or proceeding under any applicable United States Federal or state
bankruptcy, insolvency, reorganization or other similar law or (B) a decree
or order adjudging the Company as bankrupt or
38
insolvent, or approving as properly filed a petition seeking
reorganization, arrangement, adjustment or composition of or in respect of
the Company under any applicable United States Federal or state law, or
appointing a custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official of the Company or of any substantial
part of its property, or ordering the winding up or liquidation of its
affairs, and the continuance of any such decree or order for relief or any
such other decree or order unstayed and in effect for a period of 60
consecutive days; or
(7) the commencement by the Company of a voluntary case or proceeding
under any applicable United States Federal or state bankruptcy, insolvency,
reorganization or other similar law or of any other case or proceeding to
be adjudicated a bankrupt or insolvent, or the consent by it to the entry
of a decree or order for relief in respect of the Company 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 the filing
by it of a petition or answer or consent seeking reorganization or relief
under any applicable United States Federal or state law, or the consent by
it to the filing of such petition or to the appointment of or taking
possession by a custodian, receiver, liquidator, assignee, trustee,
sequestrator or similar official of the Company or of any substantial part
of its property, or the making by it of an 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 Company in furtherance of any such action. Subject to the provisions
of Section 601, the Trustee shall not be deemed to have knowledge of a
default under subsections (3), (4), (5), (6) or (7) hereunder unless either
(A) a Responsible Officer of the Trustee shall have actual knowledge of any
such default or (B) the Trustee shall have received written notice thereof
from the Company, from any Holder of a Security, from the holder of any
such indebtedness or from the trustee under any such mortgage, indenture or
other instrument.
SECTION 502. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
(a) If an Event of Default (other than as specified in clause (6) or (7)
of Section 501) occurs and is continuing, then and in every such case the
Trustee or the Holders of not less than 25% in aggregate principal amount of the
then Outstanding Securities may, and the Trustee, upon request of the Holders of
not less than 25% in aggregate principal amount of the then Outstanding
Securities, shall declare the Securities due and payable immediately at their
principal amount (or the Repurchase Price if the Event of Default includes
failure to pay the Repurchase Price) together with accrued and unpaid interest,
if any, to the date the Securities become due and payable, by a notice in
writing to the Company (and to the Trustee if given by Holders), and upon any
such declaration such principal amount (or Repurchase Price) together with
accrued and unpaid interest, if any, to the date the Securities become due and
payable shall become immediately due and payable. If an Event of Default with
respect to the Company specified in clause (6) or (7) of Section 501 occurs, all
principal of, premium applicable to, and
39
accrued interest on all then Outstanding Securities, shall be immediately due
and payable without any declaration or other act on the part of the Trustee or
the Holders.
(b) At any time after such a declaration of acceleration has been made and
before a judgment or decree for payment of the money due has been obtained by
the Trustee as hereinafter in this Article provided, the Holders of a majority
in principal amount of the then Outstanding Securities, by written notice to the
Company and the Trustee, may rescind and annul on behalf of all Holders, such
declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue interest on all then Outstanding Securities,
(B) the principal of (and premium, if any, on)
any Securities which have become due otherwise than by such
declaration of acceleration and interest thereon at the rate borne by
the Securities,
(C) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate borne by the Securities,
and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel;
and
(2) all Events of Default, other than the non-payment of the
principal of Securities which have become due solely by such declaration of
acceleration, have been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 503. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY TRUSTEE.
The Company covenants that if:
(1) a default is made in the payment of any interest on any Security
when such interest becomes due and payable and such default continues for a
period of 30 days, or
(2) a default is made in the payment of the principal of (or premium,
if any, on) any Security at the Stated Maturity thereof including the
payment of the Repurchase Price, on the Repurchase Date,
40
the Company will, upon demand of the Trustee, pay to it, for the benefit of
the Holders of such Securities, the whole amount then due and payable on
such Securities, for principal (and premium, if any) and interest and, to
the extent that payment of such interest shall be legally enforceable,
interest on any overdue principal (and premium, if any) and on any overdue
interest at the rate borne by the Securities and in addition thereto, such
further amount as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the Company or any other obligor upon the Securities and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of
the property of the Company or any other obligor upon the Securities, wherever
situated.
If an Event of Default occurs and is continuing, the Trustee may in
its discretion proceed to protect and enforce its rights and the rights of the
Holders of Securities by such appropriate judicial proceedings as the Trustee
shall deem most effectual to protect and enforce any such rights, whether for
the specific enforcement of any covenant or agreement in this Indenture or in
aid of the exercise of any power granted herein, or to enforce any other proper
remedy.
SECTION 504. TRUSTEE MAY FILE PROOFS OF CLAIM.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor upon the
Securities or the property of the Company or such other obligor or their
creditors, the Trustee (irrespective of whether the principal of the Securities
shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand on
the Company for the payment of overdue principal or interest) shall be entitled
and empowered, by intervention in such proceeding or otherwise,
(i) to file and prove a claim for the whole amount of principal (and
premium, if any) and interest with respect to the Securities and to file
such other papers or documents as may be necessary or advisable in order to
have the claims of the Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel) and of the Holders of Securities allowed in such
judicial proceeding, and
(ii) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
41
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized
by each Holder of Securities to make such payments to the Trustee and, in
the event that the Trustee shall consent to the making of such payments
directly to the Holders of Securities, to pay to the Trustee any amount due
it for the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel, and any other amounts due the Trustee
under Section 606.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder of a Security
any plan of reorganization, agreement, adjustment or composition affecting the
Securities or the rights of any Holder thereof or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding.
SECTION 505. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF SECURITIES.
All rights of action and claims under this Indenture or the Securities
may be prosecuted and enforced by the Trustee without the possession of any of
the Securities or the production thereof in any proceeding relating thereto, and
any such proceeding instituted by the Trustee shall be brought in its own name
as trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel, be for the ratable benefit
of the Holders of the Securities in respect of which such judgment has been
recovered.
SECTION 506. APPLICATION OF MONEY COLLECTED.
Subject to Article Twelve, any money collected by the Trustee pursuant
to this Article shall be applied in the following order, at the date or dates
fixed by the Trustee and, in case of the distribution of such money on account
of principal (or premium, if any) or interest, upon presentation of the
Securities and the notation thereon of the payment if only partially paid and
upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section
606;
SECOND: To the payment of the amounts then due and unpaid for
principal of (and premium, if any) and interest on the Securities in
respect of which or for the benefit of which such money has been collected,
ratably, without preference or priority of any kind, according to the
amounts due and payable on such Securities for principal (and premium, if
any) and interest, respectively; and
THIRD: To the Company, the remainder, if any.
42
The Trustee may fix a record date and a payment date for any payment
to Holders pursuant to this Section 506.
SECTION 507. LIMITATION ON SUITS.
No Holder of any Security shall have any right to institute any
proceeding, judicial or otherwise, with respect to this Indenture, or for the
appointment of a receiver or trustee, or for any other remedy hereunder, unless
(1) such Holder has previously given written notice to the Trustee of
a continuing Event of Default;
(2) the Holders of not less than 25% in aggregate principal amount of
the then Outstanding Securities shall have made written request to the
Trustee to institute such proceedings in respect of such Event of Default
in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity satisfactory to the Trustee against the costs, expenses and
liabilities to be incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a majority
in principal amount of the then Outstanding Securities;
it being understood and intended that no one or more Holders shall have any
right in any manner whatever by virtue of, or by availing of, any provision of
this Indenture to affect, disturb or prejudice the rights of any other Holders,
or to obtain or to seek to obtain priority or preference over any other Holders
or to enforce any right under this Indenture, except in the manner herein
provided and for the equal and ratable benefit of all the Holders.
SECTION 508. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL, PREMIUM AND
INTEREST.
Notwithstanding any other provision in this Indenture, the Holder of
any Security shall have the right, which is absolute and unconditional, to
receive payment of the principal of (and premium, if any) and (subject to
Section 306) interest, if any, on such Security on the respective Stated
Maturities expressed in such Security (or, in the case of redemption or
repurchase, on the Redemption Date or Repurchase Date) and to institute suit for
the
43
enforcement of any such payment, and such rights shall not be impaired without
the consent of such Holder.
SECTION 509. RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any Holder of a Security has instituted any
proceeding to enforce any right or remedy under this Indenture and such
proceeding has been discontinued or abandoned for any reason, or has been
determined adversely to the Trustee or to such Holder, then and in every such
case, subject to any determination in such proceeding, the Company, the Trustee
and the Holders of Securities shall be restored severally and respectively to
their former positions hereunder and thereafter all rights and remedies of the
Trustee and the Holders shall continue as though no such proceeding has been
instituted.
SECTION 510. RIGHTS AND REMEDIES CUMULATIVE.
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities in the last paragraph
of Section 305, no right or remedy herein conferred upon or reserved to the
Trustee or to the Holders of Securities is intended to be exclusive of any other
right or remedy, and every right and remedy shall, to the extent permitted by
law, be cumulative and in addition to every other right and remedy given
hereunder or now or hereafter existing at law or in equity or otherwise. The
assertion or employment of any right or remedy hereunder, or otherwise, shall
not prevent the concurrent assertion or employment of any other appropriate
right or remedy.
SECTION 511. DELAY OR OMISSION NOT WAIVER.
No delay or omission of the Trustee or of any Holder of any Security
to exercise any right or remedy accruing upon any Event of Default shall impair
any such right or remedy or constitute a waiver of any such Event of Default or
an acquiescence therein. Every right and remedy given by this Article or by law
to the Trustee or to the Holders of Securities may be exercised from time to
time, and as often as may be deemed expedient, by the Trustee or by the Holders
of Securities, as the case may be.
SECTION 512. CONTROL BY HOLDERS.
The Holders of not less than a majority in principal amount of the
then Outstanding Securities shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee or
exercising any trust or power conferred on the Trustee, PROVIDED that
44
(1) such direction shall not be in conflict with any rule of law or
with this Indenture,
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction, and
(3) reasonable indemnity satisfactory to the Trustee against the
costs, expenses (including reasonable fees of its counsel) and liabilities
shall have been offered the Trustee.
SECTION 513. WAIVER OF PAST DEFAULTS.
The Holders of not less than a majority in principal amount of the
then Outstanding Securities may on behalf of the Holders of all the Securities
waive any past default hereunder and its consequences, except a default
(1) in the payment of the principal of (or premium, if any) or
interest on any Security, or
(2) in respect of a covenant or provision hereof which under Article
Eight cannot be modified or amended without the consent of the Holder of
each then Outstanding Security affected.
Upon any such waiver, such Default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
SECTION 514. UNDERTAKING FOR COSTS.
All parties to this Indenture agree, and each Holder of a 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 of an undertaking to pay the costs of such suit, and that such court may in
its discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to any suit instituted by the
Company, to any suit instituted by the Trustee, to any suit instituted by any
Holder, or group of Holders, holding in the aggregate more than 25% in principal
amount of the then Outstanding Securities, or to any suit instituted by any
Holder of any Security for the enforcement of the payment of the principal of
(or premium, if any) or interest on any Security
45
on or after the respective Stated Maturities expressed in such Security (or, in
the case of redemption, on or after the Redemption Date or, in the case of
repurchase, on or after the Repurchase Date).
SECTION 515. WAIVER OF STAY OR EXTENSION LAWS.
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead, or in any manner whatsoever claim
or take the benefit or advantage of, any stay or extension of law wherever
enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law
and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
ARTICLE SIX
The Trustee
SECTION 601. CERTAIN DUTIES AND RESPONSIBILITIES.
(a) Except during the continuance of an Event of Default,
(1) the Trustee undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture, and no implied
covenants or obligations shall be read into this Indenture against the
Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions furnished to
the Trustee and conforming to the requirements of this Indenture; but in
the case of any such 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) In case an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise, as a
prudent man would exercise or use under the circumstances in the conduct of his
own affairs.
46
(c) 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, EXCEPT that
(1) this Subsection shall not be construed to limit the effect of
Subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer, unless it shall be proved that the
Trustee was negligent in ascertaining the pertinent facts;
(3) 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 the Holders of a majority in principal amount of the then Outstanding
Securities, 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; and
(4) no provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial liability in
the performance of any of its duties hereunder, or in the exercise of any
of its rights or powers, if it shall have reasonable grounds for believing
that repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured to it.
(d) Whether or not therein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of this
Section.
SECTION 602. CERTAIN RIGHTS OF TRUSTEE.
Subject to the provisions of Section 601:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document believed by it to be genuine and to have been signed or presented
by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors may be sufficiently evidenced by a
Board Resolution;
(c) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any
47
action hereunder, the Trustee (unless other evidence be herein specifically
prescribed) may, in the absence of bad faith on its part, rely upon an
Officers' Certificate;
(d) the Trustee may consult with counsel and the written advice of
such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction
of any of the Holders of Securities pursuant to this Indenture, unless such
Holders shall have offered to the Trustee reasonable security or indemnity
against the costs, expenses and liabilities which might be incurred by it
in compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such further inquiry
or investigation into such facts or matters as it may see fit, and, if the
Trustee shall determine to make such further inquiry or investigation, it
shall be entitled to examine the books, records and premises of the
Company, personally or by agent or attorney;
(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 and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder;
(h) matters shall not be deemed known to the Trustee unless such
matters are known to a Responsible Officer of the Trustee; and
(i) except with respect to Section 1001, the Trustee shall have no
duty to inquire as to the performance of the Company's covenants in Article
Ten hereof. In addition, the Trustee shall not be deemed to have knowledge
of any Default or Event of Default except (i) any Event of Default
occurring pursuant to Section 501(1), 501(2) or 1001, or (ii) any Default
or Event of Default of which the Trustee shall have received written
notification or obtained actual knowledge.
SECTION 603. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES.
The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Company, and the Trustee assumes no responsibility for their correctness.
The Trustee makes no representations as to the validity or
48
sufficiency of this Indenture or of the Securities. The Trustee shall not be
accountable for the use or application by the Company of Securities or the
proceeds thereof.
SECTION 604. MAY HOLD SECURITIES.
The Trustee, any Authenticating Agent, any Paying Agent, any Transfer
Agent, any Security Registrar or any other agent of the Company, in its
individual or any other capacity, may become the owner or pledgee of Securities
and may otherwise deal with the Company with the same rights it would have if it
were not Trustee, Authenticating Agent, Paying Agent, Transfer Agent, Security
Registrar or such other agent.
SECTION 605. MONEY HELD IN TRUST.
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall be
under no liability for interest on any money received by it hereunder except as
otherwise agreed with the Company.
SECTION 606. COMPENSATION AND REIMBURSEMENT.
The Company agrees
(1) to pay to the Trustee from time to time such compensation as
shall be agreed upon in writing for all services rendered by it hereunder
(which compensation shall not be limited by any provision of law in regard
to the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in the administration of the
trusts set forth in this Indenture (including the reasonable compensation
and the expenses and disbursements of its agents and counsel), except any
such expense, disbursement or advance as may be attributable to its
negligence or bad faith; and
(3) to indemnify the Trustee for, and to hold it harmless against,
any loss, liability or expense incurred without negligence or bad faith on
its part, arising out of or in connection with the acceptance or
administration of this trust, including the costs and expenses (including
the reasonable expenses and disbursements of its counsel) of defending
itself against any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder.
SECTION 607. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.
49
There shall at all times be a Trustee hereunder which shall be a
corporation organized and doing business under the laws of the United States of
America, any State thereof or the District of Columbia, authorized under such
laws to exercise corporate trust powers, having a combined capital and surplus
of at least $50 million subject to supervision or examination by Federal or
State authority. If such corporation publishes reports of condition at least
annually, pursuant to law or to the requirements of said supervising or
examining authority, then for the purposes of this Section, the combined capital
and surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. If at
any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and with
the effect hereinafter specified in this Article.
SECTION 608. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee under Section 609.
(b) The Trustee may resign at any time by giving written notice
thereof to the company. If an instrument of acceptance by a successor Trustee
shall not have been delivered to the Trustee within 30 days after the giving of
such notice of resignation, the resigning Trustee may petition any court of
competent Jurisdiction for the appointment of a successor Trustee.
(c) The Trustee may be removed at any time by Act of the Holders of a
majority in principal amount of the then Outstanding Securities delivered to the
Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 613(a) after
written request therefor by the Company or by any Holder of a Security who
has been a bona fide Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 607 and
shall fail to resign after written request therefor by the Company or by
any such Holder of a Security, or
(3) the Trustee shall become incapable of acting or shall be adjudged
a bankrupt or insolvent or a receiver of the Trustee or of its property
shall be appointed 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,
50
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee, or (ii) subject to Section 514, any Holder of a Security who has been a
bona fide Holder of a Security for at least six months may, on behalf of himself
and all others similarly situated, petition any court of competent jurisdiction
for the removal of the Trustee and the appointment of a successor Trustee.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause, the
Company, by a Board Resolution, shall promptly appoint a successor Trustee. If,
within one year after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee shall be appointed by Act of the
Holders of a majority in principal amount of the then Outstanding Securities
delivered to the Company and the retiring Trustee, the successor Trustee so
appointed shall, forthwith upon its acceptance of such appointment, become the
successor Trustee and supersede the successor Trustee appointed by the Company.
If no successor Trustee shall have been so appointed by the Company or the
Holders of Securities and accepted appointment in the manner hereinafter
provided, any Holder of a Security who has been a bona fide Holder of a Security
for at least six months may, on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for the appointment of a
successor Trustee.
(f) The Company shall give notice of each resignation and each
removal of the Trustee and each appointment of a successor Trustee to the
Holders of Securities in the manner provided in Section 105. Each notice shall
include the name of the successor Trustee and the address of its Corporate
Office.
SECTION 609. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
Every successor Trustee appointed hereunder shall execute, acknowledge
and deliver to the Company and to the retiring Trustee an instrument accepting
such appointment, and thereupon the resignation or removal of the retiring
Trustee shall become effective and such successor Trustee, without any further
act, deed or conveyance, shall become vested with all the rights, powers, trusts
and duties of the retiring Trustee; but, on request of the Company or the
successor Trustee, such retiring Trustee shall, upon payment of its fees and
expenses in accordance with Section 606, execute and deliver an instrument
transferring to such successor Trustee all the rights, powers and trusts of the
retiring Trustee and shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder. Upon
request of any such successor Trustee, the Company shall execute any and all
instruments for more fully and certainly vesting in and confirming to such
successor Trustee all such rights, powers and trusts.
No successor Trustee shall accept its appointment unless at the time
of such acceptance such successor Trustee shall be qualified and eligible under
this Article.
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SECTION 610. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities.
SECTION 611. APPOINTMENT OF AUTHENTICATING AGENT.
The Trustee may appoint an Authenticating Agent or Agents which shall
be authorized to act on behalf of the Trustee to authenticate Securities issued
upon original issue and upon exchange, registration of transfer or partial
redemption or partial repurchase or pursuant to Section 305, and Securities so
authenticated shall be entitled to the benefits of this Indenture and shall be
valid and obligatory for all purposes as if authenticated by the Trustee
hereunder. Wherever reference is made in this Indenture to the authentication
and delivery of Securities by the Trustee or the Trustee's certificate of
authentication, such reference shall be deemed to include authentication and
delivery on behalf of the Trustee by an Authenticating Agent and a certificate
of authentication executed on behalf of the Trustee by an Authenticating Agent.
Each Authenticating Agent shall be acceptable to the Company and shall at all
times be a corporation organized and doing business under the laws of the United
States of America, any State thereof or the District of Columbia, authorized
under such laws to act as Authenticating Agent, having a combined capital and
surplus of not less than $50 million and subject to supervision or examination
by Federal or State authority. If such Authenticating Agent publishes reports
of condition at least annually, pursuant to law or to the requirements of said
supervising or examining authority, then for the purposes of this Section, the
combined capital and surplus of such Authenticating Agent shall be deemed to be
its combined capital and surplus as set forth in its most recent report of
condition so published. If at any time an Authenticating Agent shall cease to
be eligible in accordance with the provisions of this Section, such
Authenticating Agent shall resign immediately in the manner and with the effect
specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
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An Authenticating Agent may resign at any time by giving written
notice thereof to the Trustee and to the Company. The Trustee may at any time
terminate the agency of an Authenticating Agent by giving written notice thereof
to such Authenticating Agent and to the Company. Upon receiving such a notice
of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall mail written notice of
such appointment by first-class mail, postage prepaid, to all Holders as their
names and addresses appear in the Security Register. Any successor
Authenticating Agent upon acceptance of its appointment hereunder shall become
vested with all the rights, powers and duties of its predecessor hereunder, with
like effect as if originally named as an Authenticating Agent. No successor
Authenticating Agent shall be appointed unless eligible under the provisions of
this Section.
The Trustee agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section, and the
Trustee shall be entitled to be reimbursed for such payments, subject to the
provisions of Section 606.
If an appointment is made pursuant to this Section, the Securities may
have endorsed thereon, in addition to the Trustee's certificate of
authentication, an alternate certificate of authentication in the following
form:
This is one of the Securities described in the within-mentioned
Indenture.
American Bank National Association
------------------------------
As Trustee
By
----------------------------
As Authenticating Agent
By
----------------------------
Authorized Officer
SECTION 612. NOTICE OF DEFAULTS.
Within 90 days after the occurrence of any Default hereunder, the
Trustee shall give to the Holders of Securities notice as provided in Section
105 of such default hereunder known to the Trustee, unless such Default shall
have been cured or waived; PROVIDED, HOWEVER, that, in the case of a Default in
the payment of the principal of (or premium, if
53
any) or interest on any Security, 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 Responsible Officers of the Trustee in good
faith determines that the withholding of such notice is in the interest of the
Holders of Securities.
SECTION 613. DISQUALIFICATION; CONFLICTING INTERESTS.
If the Trustee has or shall acquire a conflicting interest within the
meaning of the Trust Indenture Act, the Trustee shall either eliminate such
interest or resign, to the extent and in the manner provided by, and subject to
the provisions of, the Trust Indenture Act and this Indenture.
SECTION 614. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
If and when the Trustee shall be or become a creditor of the Company
or any other obligor upon the Securities), the Trustee shall be subject to the
provisions of the Trust Indenture Act regarding the collection of claims against
the Company (or any such other obligor).
ARTICLE SEVEN
Consolidation, Merger, Conveyance, Transfer or Lease
SECTION 701. COMPANY MAY CONSOLIDATE, ETC. ONLY ON CERTAIN TERMS.
The Company will not, in any transaction or series of transactions,
consolidate with or merge with or into any other Person or convey, transfer or
lease its properties and assets substantially as an entirety to any Person, and
the Company may not permit any Person to consolidate with or merge into the
Company or convey, transfer or lease its properties and assets substantially as
an entirety to the Company, unless:
(1) in case the Company will consolidate with or merge into
another Person or convey, transfer or lease its properties and assets
substantially as an entirety to any Person, such Person (any such surviving
Person or transferee Person being the "Surviving Person") shall be a corporation
or partnership, shall be organized and validly existing under the laws of the
United States of America or any political subdivision thereof and shall
expressly assume by supplemental indenture reasonably satisfactory to the
Trustee the due and punctual payment of the principal of and premium, if any,
and interest on all the Securities and the performance of every covenant of the
Indenture on the part of the Company to be performed or observed; and
54
(2) immediately after giving effect to such transaction, no
Default or Event of Default shall have happened and be continuing; and
(3) the Company or the Surviving Person, as the case may be,
after giving effect to such transactions or series of transactions on a pro
forma basis (including any Indebtedness Incurred or anticipated to be Incurred
in connection with or in respect of such transaction or series of transactions )
could Incur $1.00 of additional Indebtedness (other than Permitted Indebtedness)
under Section 1008; provided, however, that this clause (3) shall not prohibit
the merger of a Wholly Owned Subsidiary into the Company.
SECTION 702. SUCCESSOR SUBSTITUTED.
Upon any consolidation of the Company with, or merger of the Company
into, any other Person or any conveyance, transfer or lease of the properties
and assets of the Company substantially as an entirety in accordance with
Section 701, the successor Person formed by such consolidation or into which the
Company is merged or to which such conveyance, transfer or lease is made shall
succeed to, and be substituted for, and may exercise every right and power of,
the Company under this Indenture with the same effect as if such successor
Person had been named as the Company herein. When such successor Person duly
assumes all of the obligations of the Company pursuant hereto and pursuant to
the Securities, the predecessor Person shall be relieved of all obligations and
covenants under this Indenture and the Securities.
ARTICLE EIGHT
Supplemental Indentures
SECTION 801. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.
Without the consent of any Holders of Securities, the Company, when
authorized by a Board Resolution, and the Trustee, at any time and from time to
time, may enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Company and
the assumption by any such successor of the covenants of the Company herein
and in the Securities in accordance with Article Seven; or
(2) to add to the covenants of the Company for the benefit of the
Holders of Securities, or to surrender any right or power herein conferred
upon the Company; or
(3) to secure the Securities; or
55
(4) to provide for uncertificated Securities, as well as, or in the
place of certificated Securities; or
(5) to make any change to this Indenture necessary to cause the
Indenture to comply with the Trust Indenture Act even if such change is
inconsistent with another provision hereof; or to cure any ambiguity, to
correct or supplement any provision herein which may be inconsistent with
any other provision herein, or to make any other provisions with respect to
matters or questions arising under this Indenture, PROVIDED such action
pursuant to this clause (5) shall not adversely affect the interests of the
Holders in any material respect.
SECTION 802. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.
With the consent of the Holders of not less than a majority in
principal amount of the then Outstanding Securities, by Act of said Holders
delivered to the Company and the Trustee, the Company, when authorized by a
Board of Resolution, and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of
modifying in any manner the rights of the Holders of Securities under this
Indenture; PROVIDED, HOWEVER, that no such supplemental indenture shall, without
the consent of the Holder of each then Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or any
installment of interest on, any Security, or reduce the principal amount
thereof or the rate of interest thereon or any premium payable upon the
redemption thereof, or the Repurchase Price or change the Place of Payment
where, or the coin or currency in which, any Security or any premium or the
interest thereon is payable, or impair the right to institute suit for the
enforcement of any such payment on or after the Stated Maturity thereof
(or, in the case of a redemption or repurchase, on or after the Redemption
Date or Repurchase Date), or modify the provisions of this Indenture with
respect to the subordination of the Securities in a manner adverse to the
Holders, or
(2) reduce the percentage in principal amount of the then Outstanding
Securities, the consent of whose Holders is required for any such
supplemental indenture, or the consent of whose Holders is required for any
waiver (of compliance with certain provisions of this Indenture or certain
defaults hereunder and their consequences) provided for in this Indenture,
or
(3) change the obligation of the Company to maintain an office or
agency in the Borough of Manhattan, The City of New York, or
56
(4) modify any of the provisions of this Section, Section 513 or
Section 1016, except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or waived
without the consent of the Holder of each then Outstanding Security
affected thereby.
It shall not be necessary for any Act of Holders of Securities under
this Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such Act shall approve the substance
thereof.
Notwithstanding the foregoing, a supplemental indenture changing or
adding any provision of this Indenture (whether entered into pursuant to Section
801 or Section 802) shall not make any change or addition that affects the
rights under Article Twelve in a manner adverse to any holder of an issue of
Senior Indebtedness unless the holders of such issue of Senior Indebtedness
pursuant to its terms consent to the change or addition.
SECTION 803. EXECUTION OF SUPPLEMENTAL INDENTURES.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 601) shall be fully protected in relying upon, an
opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
SECTION 804. EFFECT OF SUPPLEMENTAL INDENTURES.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
SECTION 805. NOTATION ON OR EXCHANGE OF SECURITIES.
(a) If an amendment, supplement or waiver changes the terms of a
Security, the Trustee may require the Holder of the Security to deliver it to
the Trustee or require the Holder to put an appropriate notation on the
Security. The Trustee may place an appropriate notation on the Security about
the changed terms and return it to the Holder. Alternatively, if the Company or
the Trustee so determines, the Company in exchange for the Security shall issue
and the Trustee shall authenticate a new Security that reflects the changed
terms. Any failure
57
to make the appropriate notation or to issue a new Security shall not affect the
validity of such amendment, supplement or waiver.
(b) In the event the Conversion Condition is satisfied, if the
Company or the Trustee so determines, the Holders shall deliver their Securities
to the Trustee and the Company shall issue and the Trustee shall authenticate a
new certificate in exchange for such Securities that reflects (i) the
designation of the Securities as the " % Subordinated Notes due 2005" of the
Company and (ii) the Satsifaction of the Conversion Condition.
SECTION 806. NOTICE OF SUPPLEMENTAL INDENTURES.
Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provisions of Section 802, the Company
shall give notice, setting forth in general terms the substance of such
supplemental indenture, in the manner provided in Section 105. Any failure of
the Company to give such notice, or any defect therein, shall not in any way
impair or affect the validity of any such supplemental indenture.
SECTION 807. CONFORMITY WITH TRUST INDENTURE ACT.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
ARTICLE NINE
Meetings of Holders of Securities
SECTION 901. PURPOSES FOR WHICH MEETINGS MAY BE CALLED.
A meeting of Holders of Securities may be called at any time and from
time to time pursuant to this Article to make, give or take any request, demand,
authorization, direction, notice, consent, election, waiver or other action
provided by this Indenture to be made, given or taken by Holders of Securities.
SECTION 902. CALL, NOTICE AND PLACE OF MEETINGS.
(a) The Trustee may at any time call a meeting of Holders of
Securities for any purpose specified in Section 901, to be held at such time and
at such place in the Borough of Manhattan, The City of New York as the Trustee
shall determine. Notice of every meeting of Holders of Securities, setting
forth the time and the place of such meeting and in general terms the action
proposed to be taken at such meeting, shall be given, in the manner provided
58
in Section 105, not less than 20 nor more than 60 days prior to the date fixed
for the meeting.
(b) In case at any time the Company, pursuant to a Board Resolution,
or the Holders of at least 10% in principal amount of the then Outstanding
Securities shall have requested the Trustee to call a meeting of the Holders of
Securities for any purpose specified in section 901, by written request setting
forth in reasonable detail the action proposed to be taken at the meeting, and
the Trustee shall not have mailed the notice of such meeting within 20 days
after receipt of such request or shall not thereafter proceed to cause the
meeting to be held as provided herein, then the Company or the Holders of
Securities in the amount above specified, as the case may be, may determine the
time and the place in the Borough of Manhattan, The City of New York for such
meeting and may call such meeting for such purposes by giving notice thereof as
provided in subsection (a) of this Section.
SECTION 903. PERSONS ENTITLED TO VOTE AT MEETINGS.
To be entitled to vote at any meeting of Holders of Securities, a
Person shall be (1) a Holder of one or more then Outstanding Securities, or (2)
a Person appointed by an instrument as proxy for a Holder or Holders of one or
more outstanding Securities by such Holder or Holders. The only Persons who
shall be entitled to be present or to speak at such meeting of Holders shall be
the Persons entitled to vote at such meetings and their counsel, any
representatives of the Trustee and its counsel and any representatives of the
Company and its counsel.
SECTION 904. QUORUM; ACTION.
The Persons entitled to vote a majority in principal amount of the
then Outstanding Securities shall constitute a quorum. In the absence of a
quorum within 30 minutes of the time appointed for any such meeting, the meeting
shall, if convened at the request of Holders of Securities, be dissolved. In
any other case the meeting may be adjourned for a period of not less than 10
days as determined by the chairman of the meeting prior to the adjournment of
such meeting. In the absence of a quorum at any such adjourned meeting, such
adjourned meeting may be further adjourned for a period of not less than 10 days
as determined by the chairman of the meeting prior to the adjournment of such
adjourned meeting. Notice of the reconvening of any adjourned meeting shall be
given as provided in Section 902(a), except that such notice need be given only
once not less than five days prior to the date on which the meeting is scheduled
to be reconvened.
Subject to the requirements of Section 802, any resolution passed or
decision taken at any meeting of Holders of Securities duly held in accordance
with this Section shall be binding on all the Holders of the Securities, whether
or not present or represented at the meeting.
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SECTION 905. DETERMINATION OF VOTING RIGHTS;
CONDUCT AND ADJOURNMENT OF MEETINGS.
(a) Notwithstanding any other provisions of this Indenture, the
Trustee may make such reasonable regulations as it may deem advisable for any
meeting of Holders of Securities in regard to proof of the holding of Securities
and of the appointment of proxies and in regard to the appointment and duties of
inspectors of votes, the submission and examination of proxies, certificates and
other evidence of the right to vote, and such other matters concerning the
conduct of the meeting as it shall deem appropriate. Except as otherwise
permitted or required by any such regulations, the holding of Securities shall
be proved in the manner specified in Section 103 and the appointment of any
proxy shall be proved in the manner specified in Section 103. Such regulations
may provide that written instruments appointing proxies, regular on their face,
may be presumed valid and genuine without the proof specified in Section 103 or
other proof.
(b) The Trustee shall, by an instrument in writing, appoint a
temporary chairman of the meeting, unless the meeting shall have been called by
the Company or by Holders of Securities as provided in Section 902(b), in which
case the Company or the Holders of Securities calling the meeting, as the case
may be, shall in like manner appoint a temporary chairman. A permanent chairman
and a permanent secretary of the meeting shall be elected by vote of the Persons
entitled to vote a majority in principal amount of the then Outstanding
Securities represented at the meeting.
(c) At any meeting each Holder of a Security or proxy shall be
entitled to one vote for each $1,000 principal amount of Securities held or
represented by him; PROVIDED, HOWEVER, that no vote shall be cast or counted at
any meeting in respect of any Security challenged as not outstanding and ruled
by the chairman of the meeting to be not Outstanding. The chairman of the
meeting shall have no right to vote, except as a Holder of a Security or proxy.
(d) Any meeting of Holders of Securities duly called pursuant to
Section 902 at which a quorum is present may be adjourned from time to time by
Persons entitled to vote a majority in principal amount of the then Outstanding
Securities represented at the meeting; and the meeting may be held as so
adjourned without further notice.
SECTION 906. COUNTING VOTES AND RECORDING ACTION OF MEETINGS.
The vote upon any resolution submitted to any meeting of Holders of
Securities shall be by written ballots on which shall be subscribed the
signature of the Holders of Securities or of their representatives by proxy and
the principal amounts and serial numbers of the Outstanding Securities held or
represented by them. The permanent chairman of the meeting shall appoint two
inspectors of votes who shall count all votes cast at the meeting for or against
any resolution and who shall make and file with the secretary of the meeting
their verified writ-
60
ten reports in duplicate of all votes cast at the meeting. A record, at least
in duplicate, of the proceedings of each meeting of Holders of Securities shall
be prepared by the secretary of the meeting and there shall be attached to said
record the original reports of the inspectors of votes on any vote by ballot
taken thereat and affidavits by one or more persons having knowledge of the
facts setting forth a copy of the notice of the meeting and showing that said
notice was given a provided in Section 902 and, if applicable, Section 904.
Each copy shall be signed and verified by the affidavits of the permanent
chairman and secretary of the meeting and one such copy shall be delivered to
the Company and another to the Trustee to be preserved by the Trustee, the
latter to have attached thereto the ballots voted at the meeting. Any record so
signed and verified shall be conclusive evidence of the matters therein stated.
SECTION 907. ACTION BY WRITTEN CONSENT.
Notwithstanding any other provisions of this Article Nine, holders may
take any action permitted to be taken pursuant to Section 901 herein by written
consent.
ARTICLE TEN
Covenants
SECTION 1001. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST.
The Company will duly and punctually pay the principal of (and
premium, if any) and interest on the Securities in accordance with the terms of
the Securities and this Indenture.
SECTION 1002. MAINTENANCE OF OFFICE OR AGENCY.
The Company hereby appoints the corporate office of the Trustee as its
agent in the Borough of Manhattan, The City of New York, where Securities may be
presented or surrendered for payment, and for registration of transfer or
exchange and where notices and demands to or upon the Company in respect of the
Securities and this Indenture may be served.
The Company may at any time and from time to time vary or terminate
the appointment of any such agent or appoint any additional agents for any or
all of such purposes; PROVIDED, HOWEVER, that the Company will maintain in the
Borough of Manhattan, The City of New York, an office or agency where Securities
may be presented or surrendered for payment, where Securities may be surrendered
for registration of transfer or exchange, and where notices and demands to or
upon the Company in respect of the Securities and this Indenture may be served.
The Company will give prompt written notice to the Trustee and the Holders of
the appointment or termination of any such agent and of the location and any
change in the location of any such office or agency.
61
If at any time the Company shall fail to maintain any such required
office or agency in the Borough of Manhattan, The City of New York or shall fail
to furnish the Trustee with the address thereof, presentations and surrenders
may be made (subject to the limitations described in the preceding paragraph) at
and notices and demands may be served on the Corporate Office of the Trustee,
and the Company hereby appoints the same as its agent to receive such respective
presentations, surrenders, notices and demands.
SECTION 1003. MONEY FOR SECURITIES; PAYMENTS TO BE HELD
IN TRUST; NOTICE REGARDING PAYING AGENTS.
If the Company shall at any time act as its own Paying Agent, it will,
on or before each due date of the principal of (and premium, if any) or
interest, if any, on any of the Securities, segregate and hold in trust for the
benefit of the Persons entitled thereto a sum sufficient to pay the principal
(and premium, if any) or interest so becoming due until such sums shall be paid
to such Persons or otherwise disposed of as herein provided and will promptly
notify the Trustee of its actions or failure so to act.
Whenever the Company shall have one or more Paying Agents, it will,
prior to each due date of the principal of (and premium, if any) or interest, if
any, on any Securities, deposit with a Paying Agent a sum sufficient to pay the
principal (and premium, if any) or interest so becoming due, such sum to be held
in trust for the benefit of the Persons entitled to such principal, premium or
interest, and (unless such Paying Agent is the Trustee) the Company will
promptly notify the Trustee of its action or failure so to act.
The Company will cause each Paying Agent other than the Trustee to
execute and deliver to the Trustee an instrument in which such Paying Agent
shall agree with the Trustee, subject to the provisions of this Section, that
such Paying Agent will:
(1) hold all sums held by it for the payment of the principal of (and
premium, if any) or interest, if any, on Securities in trust for the
benefit of the Persons entitled thereto until such sums shall be paid to
such Persons or otherwise disposed of as herein provided;
(2) give the Trustee written notice of any default by the Company (or
any other obligor upon the Securities) in the making of any payment of
principal (and premium, if any) or interest, if any; and
(3) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so
held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Pay-
62
ing Agent to pay, to the Trustee all sums held in trust by the Company or such
Paying Agent, such sums to be held by the Trustee upon the same trusts as those
upon which such sums were held by the Company or such Paying Agent; and, upon
such payment by any Paying Agent to the Trustee, such Paying Agent shall be
released from all further liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of (and premium, if
any) or interest, if any, on any Security and remaining unclaimed for two years
after such principal (and premium, if any) or interest has become due and
payable shall be paid to the Company on Company Request, or (if then held by the
Company) shall be discharged from such trust; and any Holder shall thereafter,
as an unsecured general creditor, look only to the Company for payment thereof,
and all liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall thereupon
cease.
Prior to the appointment of any Paying Agent (other than the Trustee)
by the Company, the Company shall give written notice of such appointment (which
notice shall include the address for purposes of notice hereunder of such Paying
Agent) to the holders of each issue of Senior Indebtedness in accordance with
the terms of each such issue.
SECTION 1004. EXISTENCE.
Subject to Article Seven, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its existence,
rights (charter and statutory) and franchise; PROVIDED, HOWEVER, that the
Company shall not be required to preserve any such right or franchise if the
Board of Directors shall determine that the preservation thereof is no longer
desirable in the conduct of the business of the Company and that the loss
thereof is not disadvantageous in any material respect to the Holders.
SECTION 1005. MAINTENANCE OF PROPERTIES.
The Company will cause all properties used or useful in the conduct of
its business or the business of any Subsidiary to be maintained and kept in good
condition, repair and working order and supplied with all necessary equipment
and will cause to be made all necessary repairs, renewals, replacements,
betterments and improvements thereof, all as in the judgment of the Company may
be necessary so that the business carried on in connection therewith may be
properly and advantageously conducted at all times; PROVIDED, HOWEVER, that
nothing in this Section shall prevent the Company from discontinuing the
operation or maintenance of any of such properties if such discontinuance is, in
the judgment of the Company, desirable in the conduct of its business or the
business of any Subsidiary and not disadvantageous in any material respect to
the Holders.
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SECTION 1006. PAYMENT OF TAXES AND OTHER CLAIMS.
The Company will pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (1) all taxes, assessments and
governmental charges levied or imposed upon the Company or any Subsidiary or
upon the income, profits or property of the Company or any Subsidiary, and (2)
all lawful claims for labor, materials and supplies which, if unpaid, might by
law become a Lien upon the property of the Company or any Subsidiary; PROVIDED,
HOWEVER, that the Company shall not be required to pay or discharge or cause to
be paid or discharged any such tax, assessment, charge or claim whose amount,
applicability or validity is being contested in good faith by appropriate
proceedings.
SECTION 1007. LIMITATION ON TRANSACTIONS WITH AFFILIATES.
The Company will not, and will not permit any of its Subsidiaries to,
directly or indirectly, enter into or permit to exist any transaction
(including, without limitation, the purchase, sale, lease or exchange of any
property or the rendering of any service) with or for the benefit of, an
Affiliate of the Company or any Subsidiary (other than transactions between the
Company and a Wholly Owned Subsidiary of the Company) (an "Affiliate
Transaction"), other than Affiliate Transactions on terms that are no less
favorable in the aggregate than those that might reasonably have been obtained
in a comparable transaction on an arm's length basis from a Person that is not
an Affiliate; PROVIDED that neither the Company nor any of its Subsidiaries
shall enter into an Affiliate Transaction or series of related Affiliate
Transactions involving a value of $10 million or more, unless a majority of the
disinterested members of the Board of Directors of the Company determines in
good faith as evidenced by a Board Resolution that the terms are no less
favorable in the aggregate to the Company than those that might reasonably have
been obtained in a comparable transaction on an arm's length basis from a Person
that is not an Affiliate.
SECTION 1008. LIMITATION ON INCURRENCE OF ADDITIONAL INDEBTEDNESS.
(a) Except as set forth in this Section 1008, the Company will
not, and will not permit any of its Subsidiaries to, Incur any Indebtedness
(including Acquired Indebtedness) other than Permitted Indebtedness.
(b) Notwithstanding Section 1008(a), the Company and its Subsidiaries
may Incur Indebtedness if (i) no Default or Event of Default shall have occurred
and be continuing at the time of or as a consequence of the Incurrence of such
Indebtedness and (ii) after giving effect to the Incurrence of such Indebtedness
(and all other Indebtedness Incurred since the end of the most recently
completed fiscal quarter of the Company preceding the date of determination),
Indebtedness of the Company calculated on a consolidated basis in accordance
with GAAP, shall not be more than the greater of (x) the product of the EBITDA
of the Company for the four most recent fiscal quarters for which financial
information is available,
64
multiplied by ten (10) for the period beginning with the Issue Date through July
__, 1997 and multiplied by eight thereafter and (y) the product of Financed Pops
as of the last day of such four fiscal quarter period multiplied by $70. The
calculations in the preceding sentence shall be made assuming in the case of
acquisitions or dispositions which occurred during such four-quarter period or
subsequent to such four-quarter period and on or prior to the date of the
transaction giving rise to the calculations referred to in the preceding
sentence, that such acquisitions or dispositions occurred (on a pro forma basis)
on the first day of such four-quarter period.
SECTION 1009. LIMITATION ON RESTRICTED PAYMENTS.
The Company will not, directly or indirectly:
(i) declare or pay any dividend on, or make any distribution to
the holders of, any shares of the Company's Capital Stock (other than
dividends or distributions payable in its Capital Stock (other than
Disqualified Capital Stock) or in options, warrants or other rights to
purchase Capital Stock (other than Disqualified Capital Stock)), or
(ii) purchase, redeem or otherwise acquire or retire for value,
Capital Stock of the Company (including options, warrants or other
rights to acquire such Capital Stock), or
(iii) make any Investment other than a Permitted Investment;
(each of the foregoing actions set forth in clauses (i) through (iii) being
referred to as a "Restricted Payment") unless, at the time of such Restricted
Payment, and after giving effect thereto:
(a) no Default or Event of Default shall have occurred and be
continuing;
(b) after giving effect to such Restricted Payment (and all
other Restricted Payments made since the end of the most recently
completed fiscal quarter of the Company preceding the date of
determination) and the Incurrence of any Indebtedness the net proceeds
of which are used to finance such Restricted Payment (and such other
Restricted Payments), the Company could incur $1.00 of additional
Indebtedness under Section 1008(b), other than Permitted Indebtedness;
and
(c)(1) after giving effect to such Restricted Payment, the
aggregate amount of all Restricted Payments (including those made
pursuant to clause (c)(2) below) made on or after July 1, 1995 shall
not exceed the sum of (i) the amount determined by subtracting (x) 1.5
times the Consolidated Interest Expense of the
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Company for the period (taken as one accounting period) from July 1,
1995 to the last day of the fiscal quarter preceding the date of the
Restricted Payment (the "Computation Period") from (y) EBITDA of the
Company for the Computation Period, plus (ii) the aggregate net
proceeds, including the fair market value of property other than cash
(as determined by the Board of Directors, whose good faith
determination shall be evidenced by a resolution filed with the
Trustee), received by the Company from the issuance or sale on or
after the Issue Date of any shares of its Capital Stock (excluding
Disqualified Capital Stock, but including Capital Stock issued upon
the conversion of, or exchange for, any Indebtedness convertible into
or exchangeable for Capital Stock of the Company (other than
Disqualified Capital Stock) or options, warrants or rights to purchase
Capital Stock of the Company (other than Disqualified Capital Stock))
to any Person (other than a Subsidiary of the Company); provided,
however, that in the event the Conversion Condition is satisfied, the
aggregate net proceeds received by the Company from the issuance of
its Capital Stock in respect of the conversion of the 6 3/4%
Convertible Subordinated Debentures due 2009 shall be excluded from
the aggregate net proceeds received by the Company pursuant to this
clause (ii).
For purposes of clause (c)(ii) above, the value of the aggregate
net proceeds received by the Company from the issuance or sale of its
Capital Stock upon the conversion or exercise of any other securities
convertible into or exchangeable for Capital Stock of the Company will
be deemed to be an amount equal to (a) the sum of (i) (x) in the case
of Indebtedness convertible into shares of Capital Stock, the
principal amount or accreted value (whichever is less) of such
Indebtedness on the date of such conversion or exchange or (y) in the
case of options, warrants or other rights to purchase shares of
Capital Stock, the cash proceeds, if any, received by the Company upon
issuance of such options, warrants or other rights, and (ii) the
additional cash consideration, if any, received by the Company upon
conversion or exchange, less any payment on account of fractional
shares, MINUS (b) all expenses incurred in connection with such
issuance or sale.
(2) The Company may make Restricted Payments not subject to clauses
(b) and (c)(1) above in an aggregate amount not to exceed $10 million on or
after July 1, 1995.
Notwithstanding the foregoing, these provisions do not prohibit: (1)
the payment of any dividend or making of any distribution within 60 days after
the date of its declaration if the dividend or distribution would have been
permitted on the date of declaration; (2) the acquisition of Capital Stock
either (i) solely in exchange for shares of Qualified Capital Stock, or (ii)
through the application of net proceeds of a substantially concurrent sale for
cash (other
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than to a Subsidiary of the Company) of shares of Qualified Capital Stock; (3)
the elimination of fractional shares or warrants; and (4) the purchase for value
of shares of Capital Stock of the Company held by directors, officers or
employees upon death, disability, retirement, termination of employment not to
exceed $1 million; PROVIDED that in the case of clauses (2), (3), and (4) no
Default or Event of Default shall have occurred or be continuing at the time of
such payment or as a result thereof. In determining the aggregate amount of
Restricted Payments made subsequent to the Issue Date, amounts expended pursuant
to clauses (1), 2(ii), (3) and (4) shall be included in such calculation.
SECTION 1010. LIMITATION ON DIVIDEND AND OTHER PAYMENT
RESTRICTIONS AFFECTING SUBSIDIARIES.
The Company will not, and will not permit any of its Subsidiaries to,
directly or indirectly, create or otherwise cause or permit to exist, or become
effective any encumbrance or restriction on the ability of any Subsidiary to (a)
pay dividends or make any other distributions on its Capital Stock, (b) make
loans or advances or to pay any Indebtedness or other obligation owed to the
Company or a Subsidiary of the Company or (c) transfer any of its properties or
assets to the Company, except for such encumbrances or restrictions existing
under or by reason of: (1) applicable law; (2) the Indenture; (3) customary
non-assignment provisions of any lease governing a leasehold interest of the
Company or any Subsidiary of the Company; (4) any instrument governing Acquired
Indebtedness, which encumbrance or restriction is not applicable to the Company
or any Subsidiary of the Company, or the properties or assets of the Company or
any Subsidiary of the Company, other than the Person, the properties or assets
so acquired and which encumbrance or restriction was not put in place in
anticipation of or in connection with such acquisition; (5) agreements existing
on the Issue Date; (6) security agreements permitted by the Indenture securing
Indebtedness permitted by the Indenture to the extent such security agreements
restrict the transfer of the property subject thereto; (7) the Credit Agreements
as in effect on the Issue Date; or (8) an agreement effecting a refinancing,
modification, replacement, renewal, restatement, refunding, deferral, extension,
substitution, supplement, reissuance or resale of Indebtedness issued, assumed
or incurred pursuant to an agreement referred to in clause (2), (4), (5), (6) or
(7) above; PROVIDED, HOWEVER, that the provisions relating to such encumbrance
or restriction contained in any such refinancing, replacement or substitution
agreement are not less favorable to the Company in any material respect in the
reasonable judgment of the Board of Directors of the Company than the provisions
relating to such encumbrance or restriction contained in agreements referred to
in such clause (2), (4), (5), (6) or (7).
SECTION 1011. PROVISION OF FINANCIAL INFORMATION.
The Company shall deliver to the Trustee and mail to each Holder,
within 15 days after it files them with the Commission, copies of its annual
report and of the information, documents and other reports (or copies of such
portions of any of the foregoing as the
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Commission may by rules and regulations prescribe) which the Company is required
to file with the Commission pursuant to Section 13 or 15(d) of the Exchange Act.
Notwithstanding that the Company may not be required to remain subject to the
reporting requirements of Section 13 or 15(d) of the Exchange Act, the Company
shall continue to file with the Commission and provide the Trustee and Holders
with such annual reports and such information, documents and other reports (or
copies of such portions of any of the foregoing as the Commission may be rules
and regulations prescribe) which are specified in Section 13 and 15(d) of the
Exchange Act. The Company also shall comply with the other provisions of
Section 314(a) of the Trust Indenture Act.
SECTION 1012. INVESTMENT COMPANY ACT.
The Company shall, and shall cause its Subsidiaries to, operate their
respective businesses so as not to be required to register as investment
companies under the Investment Company Act of 1940, as amended.
SECTION 1013. NOTICE OF DEFAULT.
The Company shall notify the Trustee and any Paying Agent in writing
of each and every default or Event of Default as soon as practicable after the
occurrence thereof is known to the Company.
SECTION 1014. PROHIBITION ON INCURRENCE OF SUBSIDIARY INDEBTEDNESS.
After the Issue Date, the Company shall not permit any of its
Subsidiaries to incur any Indebtedness other than (i) Indebtedness incurred
pursuant to a Senior Secured Credit Facility, (ii) Vendor Financing Indebtedness
and (iii) Intercompany Indebtedness. After the Issue Date, the Company shall
not permit any of its Subsidiaries to issue any Preferred Stock (other than to
the Company or a Wholly Owned Subsidiary of the Company).
SECTION 1015. ANNUAL STATEMENTS BY OFFICERS AS TO DEFAULT.
The Company will deliver to the Trustee, within 120 days after the end
of each fiscal year of the Company ending after the date hereof, an Officers'
Certificate, stating whether or not to the best knowledge of the signers thereof
the Company is in default in the performance and observance of any of the terms,
provisions and conditions of Sections 1001 to 1015, inclusive, and if the
Company shall be in default, specifying all such defaults and the nature and
status thereof of which they may have knowledge.
SECTION 1016. LIMITATION ON LIENS WITH RESPECT TO PARI PASSU
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OR SUBORDINATED INDEBTEDNESS.
The Company will not, and will not permit any Subsidiary of the
Company to Incur as security for any Pari Passu Indebtedness or Subordinated
Indebtedness (including any assumption, Guarantee or other liability with
respect thereto by any Subsidiary of the Company), any Lien of any kind upon any
property or assets (including any intercompany notes) of the Company or any
Subsidiary of the Company, or any income or profits therefrom, unless the
Securities are directly secured equally and ratably with (or prior to in the
case of Subordinated Indebtedness) the obligation or liability secured by such
Lien, except for any Lien securing Acquired Indebtedness; provided that any such
Lien only extends to the assets that were subject to such Lien securing such
Acquired Indebtedness prior to the related acquisition by the Company.
SECTION 1017. WAIVER OF CERTAIN COVENANTS.
The Company may omit in any particular instance to comply with any
covenant or condition set forth in Sections 1001 to 1016, inclusive, if before
the time for such compliance the Holders of at least a majority in principal
amount of the then Outstanding Securities shall, by Act of such Holders, either
waive such compliance in such instance or generally waive compliance with such
covenant or condition, but no such waiver shall extend to or affect such
covenant or condition except to the extent so expressly waived, and, until such
waiver shall become effective, the obligations of the Company and the duties of
the Trustee in respect of any such covenant or condition, if any, shall remain
in full force and effect.
ARTICLE ELEVEN
Redemption of Securities
SECTION 1101. RIGHT OF REDEMPTION.
The Securities may be redeemed at the Company's option, in whole or in
part from time to time, at any time on or after _________, 2000 at the
Redemption Prices (expressed as a percentage of the principal amount) specified
in the form of Securities hereinbefore set forth in Section 202, together with
accrued interest to the Redemption Date.
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SECTION 1102. APPLICABILITY OF ARTICLE.
Redemption of Securities at the election of the Company, as permitted
by any provision of this Indenture, shall be made in accordance with such
provision and this Article.
SECTION 1103. ELECTION TO REDEEM; NOTICE TO TRUSTEE.
The election of the Company to redeem any Securities pursuant to
Section 1101 shall be evidenced by a Board Resolution. In case of any
redemption at the election of the Company of less than all the Securities, the
Company shall, at least 60 days prior to the Redemption Date fixed by the
Company (unless a shorter notice shall be satisfactory to the Trustee), notify
the Trustee of such Redemption Date and of the principal amount of Securities to
be redeemed. In the event of a redemption at the election of the Company of all
the Securities, the Company shall, at least 10 days prior to the date on which
notice of such redemption is given to the Holders (unless a shorter notice shall
be satisfactory to the Trustee), notify the Trustee of such redemption
(including the proposed Redemption Date).
SECTION 1104. SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED.
If less than all the Securities are to be redeemed, the particular
Securities to be redeemed shall be selected not more than 45 days prior to the
Redemption Date by the Trustee, from the then Outstanding Securities not
previously called for redemption, in compliance with the requirements of the
principal national securities exchange, if any, on which the Securities are
listed or, if the Securities are not then listed on a national securities
exchange, on a PRO RATA basis, by lot or by such method as the Trustee shall
deem fair and appropriate and which may provide for the selection for redemption
of portions of the principal amount of Securities; PROVIDED, HOWEVER, that no
such partial redemption shall reduce the principal amount of a Security not
redeemed to less than $1,000.
The Trustee shall promptly notify the Company and each Security
Registrar 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 Securities redeemed or to be redeemed only in part, to the
portion of the principal amount of such Securities which has been or is to be
redeemed.
SECTION NOTICE OF REDEMPTION.
(a) Notice of redemption shall be given to the Holders of the
Securities to be redeemed in the manner provided in Section 105 not less than 30
nor more than 60 days prior to the Redemption Date.
All notice of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
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(3) if less than all the then Outstanding Securities are to be
redeemed, the identification (and, in the case of partial redemption, the
principal amounts) of the particular Securities to be redeemed, and the
aggregate principal amount of Securities which will be Outstanding after
such partial redemption,
(4) that on the Redemption Date the Redemption Price will become due
and payable upon each such Security to be redeemed and that interest
thereon will cease to accrue on and after said date,
(5) the place or places where such Securities are to be surrendered
for payment of the Redemption Price, and
(6) the CUSIP Number, if any, applicable to the Securities.
In the case of partial redemption, the notice shall specify the last
date on which exchanges or transfers of Securities may be made pursuant to
Section 304, and the serial numbers and the portions thereof called for
redemption.
(b) The Trustee, or the Company, as the case may be, shall also
concurrently with giving the notice referred to in Section 1105(a) mail a copy
of such notice to holders of Designated Senior Indebtedness.
(c) Notice of redemption of Securities to be redeemed at the election
of the Company shall be given by the Company or, at the Company's request, by
the Trustee in the name and at the expense of the Company.
SECTION 1106. DEPOSIT OF REDEMPTION PRICE.
At least one Business Day prior to any Redemption Date, the Company
shall deposit with the Trustee or with a Paying Agent (or, if the Company is
acting as its own Paying Agent, segregate and hold in trust as provided in
Section 1003) an amount of money sufficient to pay the Redemption Price of, and
(except if the Redemption Date shall be an Interest Payment Date) accrued
interest on, all the Securities which are to be redeemed on that date, together
with an Officers' Certificate to the effect that such redemption is not
prohibited by the terms of any outstanding issue of Senior Indebtedness.
SECTION 1107. SECURITIES PAYABLE ON REDEMPTION DATE.
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Notice of redemption having been given as aforesaid, the Securities so
to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest. Upon surrender of any
such Security for redemption in accordance with said notice, such Security shall
be paid by the Company at the Redemption Price, together with accrued interest
to the Redemption Date; PROVIDED, HOWEVER, that installments of interest on
Securities whose Stated Maturity is on or prior to the Redemption Date shall be
payable to the Holders of such Securities registered as such at the close of
business on the relevant Record Date according to their terms and the provisions
of Section 306.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium, if any) shall,
until paid, bear interest from the Redemption Date at the rate borne by the
Security.
SECTION 1108. SECURITIES REDEEMED IN PART.
Any Security which is to be redeemed only in part shall be surrendered
at an office or agency of the Company designated for that purpose pursuant to
Section 1002 (with, if the Company or the Trustee so requires, due endorsement
by, or a written instrument of transfer in form satisfactory to the Company and
the Trustee duly executed by, the Holder thereof or his attorney duly authorized
in writing), and the Company 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 principal of the Security so surrendered.
ARTICLE TWELVE
Subordination of Securities
SECTION 1201. SECURITIES SUBORDINATE TO SENIOR INDEBTEDNESS.
The Company covenants and agrees, and each Holder of a Security, by
his acceptance thereof, likewise covenants and agrees, that, to the extent and
in the manner hereinafter set forth in this Article, the Indebtedness
represented by the Securities, the payment of the principal of (and premium, if
any) and interest on each and all of the Securities are hereby expressly made
subordinate and subject in right of payment to the prior payment in full of all
Senior Indebtedness of the Company and shall rank PARI PASSU in right of payment
with the Company's 8.75% Convertible Senior Subordinated Notes due 2001.
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SECTION 1202. PAYMENT OVER OF PROCEEDS UPON DISSOLUTION, ETC.
In the event of any payment or distribution of assets to creditors
upon (a) any insolvency or bankruptcy case or proceeding, or any receivership,
liquidation, reorganization or other similar case or proceeding in connection
therewith, relative to the Company or to its creditors, as such, or to its
assets, or (b) any liquidation, dissolution or other winding up of the Company,
whether voluntary or involuntary and whether or not involving insolvency or
bankruptcy, or (c) any assignment for the benefit of creditors or any other
marshalling of assets and liabilities of the Company, then and in any such event
the Holders of Senior Indebtedness shall be first entitled to receive payment in
full of all amounts due or to become due on or in respect of all Senior
Indebtedness in cash or Cash Equivalents (including, without limitation,
interest accruing after commencement of any case or proceeding referenced in
clause (a)), or provision shall be made for such payment, before the Holders of
the Securities are entitled to receive any payment with respect to the principal
of or premium, if any, or interest on the Securities or the Trustee is entitled
to receive any payment hereunder, and to that end the holders of Senior
Indebtedness shall be entitled to receive, for application to the payment
thereof, any payment or distribution of any kind or character, whether in cash,
property or securities, which may be payable or deliverable in respect of the
Securities in any such case, proceeding, dissolution, liquidation or other
winding up or event.
In the event that, notwithstanding the foregoing provisions of this
Section, the Trustee or the Holder of any Security shall have received any
payment or distribution of assets of the Company of any kind or character,
whether in cash, property or securities when such payment or distribution is
prohibited by the first paragraph of this Section 1202, before all Senior
Indebtedness is paid in full or payment thereof provided for, and if either (a)
such fact shall, at or prior to the time of such payment or distribution, have
been made known to the Trustee or, as the case may be, such Holder, or (b) the
Trustee has not received notice from the Company that all Senior Indebtedness
has been paid in full or payment thereof provided for, then and in such event
such payment or distribution shall be paid over or delivered forthwith to the
trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee, agent
or other Person making payment or distribution of assets of the Company for
application to the payment of all Senior Indebtedness remaining unpaid, to the
extent necessary to pay all Senior Indebtedness in full, after giving effect to
any concurrent payment or distribution to or for the holders of Senior
Indebtedness.
For purposes of this Article only, the words "cash, property or
securities" shall not be deemed to include shares of stock of the Company as
reorganized or readjusted, or securities of the Company or any other corporation
provided for by a plan of reorganization or readjustment which are subordinated
in right of payment to all Senior Indebtedness which may at the time be
outstanding to the same extent as, or to a greater extent than, the Securities
are so subordinated as provided in this Article. The consolidation of the
Company with, or the merger of the Company into, another Person or the
liquidation or dissolution of the Company following the conveyance or transfer
of its properties and assets substantially as an entirety to another Person upon
the terms and conditions set forth in Article Seven shall not be deemed a
73
dissolution, winding up, liquidation, reorganization, assignment for the benefit
of creditors or marshalling of assets and liabilities of the Company for the
purposes of this Section if the Person formed by such consolidation or into
which the Company is merged or the Person which acquires by conveyance or
transfer such properties and assets substantially as an entirety, as the case
may be, shall, as a part of such consolidation, merger, conveyance or transfer,
comply with the conditions set forth in Article Seven.
SECTION 1203. NO PAYMENT WHEN SENIOR INDEBTEDNESS IN DEFAULT.
In the event that
(a) any default in the payment of principal of (or premium, if any)
or interest on any Senior Indebtedness beyond any applicable grace period
with respect thereto has occurred and is continuing, or
(b) an event of default with respect to any Senior Indebtedness shall
have occurred and shall have resulted in such Senior Indebtedness becoming
or being declared due and payable prior to the date on which it otherwise
would have become due and payable, unless and until such event of default
shall have been cured or waived or shall have ceased to exist and such
acceleration shall have been rescinded or annulled, or
(c) an event of default in respect to any Designated Senior
Indebtedness shall have occurred permitting the holders of such Designated
Senior Indebtedness (or a trustee on behalf of the holders thereof) to
declare such Designated Senior Indebtedness due and payable prior to the
date on which it would otherwise have become due and payable, which shall
be the subject of an Enforcement Notice (as defined below) given to the
Trustee by any holders of such Designated Senior Indebtedness, unless and
until the Enforcement Notice shall have been withdrawn or such event of
default shall have been cured or waived or shall have ceased to exist, or
(d) any judicial proceeding shall be pending with respect to any such
Default in (a), (b), or (c), or
(e) any of the Securities become or are declared due and payable
prior to the date on which they otherwise would have become due and payable
because of a default under this Indenture and such default or acceleration
under this Indenture constitutes a default with respect to any outstanding
issue of Designated Senior Indebtedness and such default in respect of
Designated Senior Indebtedness is not cured or waived or does not cease to
exist,
then no payment shall be made by the Company on account of principal of or
premiums, if any, or interest on, the Securities, on account of any obligations
to make payments to the Trustee hereunder or on account of the repurchase or
other acquisition of Securities.
In the event that, notwithstanding the foregoing, the Trustee or the
Holder of any Security shall have received any payment prohibited by the
foregoing provisions of this Section 1203 then and in such event such payment
shall be held in trust for the holders of Senior Indebtedness and shall be paid
over and delivered forthwith to the Company or as a court or competent
jurisdiction shall direct for application to the payment of any due and unpaid
Senior Indebtedness to the extent necessary to pay all such due and unpaid
Senior Indebtedness in cash or Cash Equivalents, after giving effect to any
concurrent payment to or for the holder of Senior Indebtedness.
"Enforcement Notice" for purposes of this Section shall mean a written
notice delivered by any holder of an issue of Designated Senior Indebtedness
which shall state that facts constituting an event of default (other than a
default in payment) have occurred, describe in reasonable detail the nature of
the event of default and any facts constituting any other event of default
(other than a default in payment) then known to the holder of such Designated
Senior Indebtedness delivering such notice and shall indicate the intention of
such holder of Designated Senior Indebtedness, subject to such holder's right to
withdraw such notice, to initiate judicial proceedings with respect to any of
the events of default so identified. An Enforcement Notice may be withdrawn by
the holder of such Designated Senior Indebtedness at any time. An Enforcement
Notice shall be deemed to have been withdrawn and shall not affect any payments
on the Securities if the holder of such Designated Senior Indebtedness within
150 days of giving the Enforcement Notice to the Trustee does not commence and
diligently pursue a judicial proceeding with respect to the events of default
identified in such Enforcement Notice. After an Enforcement Notice is withdrawn
or deemed withdrawn, the Company shall promptly resume making any and all
payments on the Securities, including missed payments. The holders of any issue
of Designated Senior Indebtedness shall not be entitled to give more than one
Enforcement Notice with respect to all defaults known to such holders at the
time of giving any such Enforcement Notice during any consecutive twelve-month
period; PROVIDED, HOWEVER, that if an event of default with respect to such
Designated Senior Indebtedness has resulted in an Enforcement Notice and such
event of default has been waived or been cured by an amendment to the Designated
Senior Indebtedness, an Enforcement Notice may be given by any holder of such
issue of Designated Senior Indebtedness within such twelve-month period with
respect to an event of default relating to any term or condition of such waiver
or amendment.
The provisions of this Section shall not apply to any payment with
respect to which Section 1202 would be applicable.
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SECTION 1204. PAYMENT PERMITTED IF NO DEFAULT.
Nothing contained in this Article or elsewhere in this Indenture or in
any of the Securities shall prevent (a) the Company, at any time except during
the pendency of any case, proceeding, dissolution, liquidation or other winding
up, assignment for the benefit of creditors or other marshalling of assets and
liabilities of the Company referred to in Section 1202 or under the conditions
described in Section 1203, from making payment at any time of principal (and
premium, if any) or interest on the Securities, or making payments to the
Trustee hereunder, or (b) the application by the Trustee of any money deposited
with it hereunder to the payment of obligations hereunder to the Trustee or to
the payment of or on account of the principal of (and premium, if any) or
interest on, the Securities or the retention of such payment by the Holders,
unless, at the time of such application by the Trustee, the Trustee has
knowledge of the existence of any facts which prohibit the making of any payment
by the Trustee.
SECTION 1205. SUBROGATION TO RIGHTS OF HOLDERS OF SENIOR INDEBTEDNESS.
Subject to the payment in full of all Senior Indebtedness, the Holders
of the Securities shall be subrogated to the extent of the payments or
distributions made to the holders of such Senior Indebtedness pursuant to the
provisions of this Article (equally and ratably with the holders of all
indebtedness of the Company which by its express terms is subordinated to
indebtedness of the Company to substantially the same extent as the Securities
are subordinated and is entitled to like rights of subrogation) to the rights of
the holders of such Senior Indebtedness to receive payments and distributions of
cash, property and securities applicable to the Senior Indebtedness until the
principal of (and premium, if any) and interest on the Securities shall be paid
in full. For purposes of such subrogation, no payments or distributions to the
holders of the Senior Indebtedness of any cash, property or securities to which
the Holders of the Securities or the Trustee would be entitled except for the
provisions of this Article, and no payments over pursuant to the provisions of
this Article to the holders of Senior Indebtedness by Holders of the Securities
or the Trustee, shall, as among the Company, its creditors (other than holders
of Senior Indebtedness) and the Holders of the Securities, be deemed to be a
payment or distribution by the Company to or on account of the Senior
Indebtedness.
SECTION 1206. PROVISIONS SOLELY TO DEFINE RELATIVE RIGHTS.
The provisions of this Article are and are intended solely for the
purpose of defining the relative rights of the Holders of the Securities on the
one hand and the holders of Senior Indebtedness on the other hand. Nothing
contained in this Article or elsewhere in this Indenture or in the Securities is
intended to or shall (a) impair, as among the Company, its creditors (other than
holders of Senior Indebtedness) and the Holders of the Securities, the
obligation of the Company, which is absolute and unconditional (and which,
subject to the rights under this Article of the holders of Senior Indebtedness,
is intended to rank equally with all
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other general obligations of the Company), to pay to the Holders of the
Securities the principal of (and premium, if any) and interest on, the
Securities as and when the same shall become due and payable in accordance with
their terms; or (b) affect the relative rights against the Company of the
Holders of the Securities and creditors of the Company other than the holders of
Senior Indebtedness; or (c) prevent the Trustee or the Holder of any Security
from exercising all remedies otherwise permitted by applicable law upon default
under this Indenture, subject to the rights, if any, under this Article of the
holders of Senior Indebtedness to receive cash, property and securities
otherwise payable or deliverable to the Trustee or such Holder.
SECTION 1207. TRUSTEE TO EFFECTUATE SUBORDINATION.
Each Holder of a Security by his acceptance thereof authorizes and
directs the Trustee on his behalf to take such action as may be necessary or
appropriate to effectuate the subordination provided in this Article and
appoints the Trustee his attorney-in-fact for any and all such purposes.
SECTION 1208. NO WAIVER OF SUBORDINATION PROVISIONS.
No right of any present or future holder of any Senior Indebtedness to
enforce subordination as herein provided shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of the Company
or by any act or failure to act, in good faith, by any such holder, or by any
non-compliance by the Company with the terms, provisions and covenants of this
Indenture, regardless of any knowledge thereof any such holder may have or be
otherwise charged with.
Without in any way limiting the generality of the foregoing paragraph,
the holders of Senior Indebtedness may, at any time and from time to time,
without the consent of or notice to the Trustee or the Holders of the
Securities, without incurring responsibility to the Holders of the Securities
and without impairing or releasing the subordination provided in this Article or
the obligations hereunder of the Holders of the Securities to the holders of
Senior Indebtedness, do any one or more of the following: (i) change the
manner, place or terms of payment or extend the time of payment of, or renew or
alter, Senior Indebtedness or any security therefor, or increase the amounts
outstanding thereunder or otherwise amend or supplement in any manner Senior
Indebtedness or any instrument evidencing the same or any agreement under which
Senior Indebtedness is outstanding or is secured; (ii) sell, exchange, release
or otherwise deal with any property pledged, mortgaged or otherwise securing
Senior Indebtedness; (iii) release any Person liable in any manner for the
Senior Indebtedness, including, without limitation, any guarantor thereof; (iv)
exercise or refrain from exercising any rights against the Company and any other
Person; and (v) otherwise deal freely with the Company or any other Person.
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SECTION 1209. NOTICE TO TRUSTEE.
The Company shall give prompt written notice to the Trustee of any
fact known to the Company which would prohibit the making of any payment to or
by the Trustee in respect of the Securities. Notwithstanding the provisions of
this Article or any other provision of this Indenture, the Trustee shall not be
charged with knowledge of the existence of any facts which would prohibit the
making of any payment to or by the Trustee in respect of the Securities, unless
and until the Trustee shall have received written notice thereof from the
Company or a holder of Senior Indebtedness or from any trustee therefor at
least one business day prior to a payment date; and, prior to the receipt of
any such written notice, the Trustee, subject to the provisions of Section
601, shall be entitled in all respects to assume that no such facts exist.
Subject to the provisions of Section 601, the Trustee shall be
entitled to rely on the delivery to it of a written notice by a Person
representing himself to be a holder of Senior Indebtedness (or a trustee
therefor) to establish that such notice has been given by a holder of Senior
Indebtedness (or a trustee therefor). In the event that the Trustee determines
in good faith that further evidence is required with respect to the right of any
Person as a holder of Senior Indebtedness to participate in any payment or
distribution pursuant to this Article, the Trustee may request such Person to
furnish evidence to the reasonable satisfaction of the Trustee as to the amount
of Senior Indebtedness held by such Person, the extent to which such Person is
entitled to participate in such payment or distribution and any other facts
pertinent to the rights of such Person under this Article, and if such evidence
is not furnished, the Trustee may defer any payment to such Person pending
judicial determination as to the right of such Person to receive such payment.
SECTION 1210. RELIANCE ON JUDICIAL ORDER OR CERTIFICATE OF LIQUIDATING AGENT.
Upon any payment or distribution of assets of the Company referred to
in this Article, the Trustee, subject to the provisions of Section 601, and the
Holders of the Securities shall be entitled to rely upon any order or decree
entered by any court of competent jurisdiction in which such insolvency,
bankruptcy, receivership, liquidation, reorganization, dissolution, winding up
or similar case or proceeding is pending, or a certificate of the trustee in
bankruptcy, receiver, liquidating trustee, custodian, assignee for the benefit
of creditors, agent or other Person making such payment or distribution,
delivered to the Trustee or to the Holders of Securities, for the purpose of
ascertaining the Persons entitled to participate in such payment or
distribution, the holders of the Senior Indebtedness and other indebtedness of
the Company, the amount thereof or payable thereon, the amount or amounts paid
or distributed thereon and all other facts pertinent thereto or to this Article.
SECTION 1211. TRUSTEE NOT FIDUCIARY FOR HOLDERS OF SENIOR INDEBTEDNESS.
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The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Indebtedness, but shall have only such obligations to such
holders as are expressly set forth in this Article.
SECTION 1212. RIGHTS OF TRUSTEE AS HOLDER OF SENIOR
INDEBTEDNESS; PRESERVATION OF TRUSTEE'S RIGHTS.
The Trustee in its individual capacity shall be entitled to all the
rights set forth in this Article with respect to any Senior Indebtedness which
may at any time be held by it, to the same extent as any other holder of Senior
Indebtedness, and nothing in this Indenture shall deprive the Trustee of any of
its rights as such holder.
SECTION 1213. ARTICLE APPLICABLE TO PAYING AGENTS.
In case at any time any Paying Agent other than the Trustee shall have
been appointed by the Company and be then acting hereunder, the term "Trustee"
as used in this Article shall in such case (unless the context otherwise
requires) be construed as extending to and including such Paying Agent within
its meaning as fully for all intents and purposes as if such Paying Agent were
named in this Article in addition to or in place of the Trustee; PROVIDED,
HOWEVER, that this Section shall not apply to the Company or any Affiliate of
the Company if it or such Affiliate acts as Paying Agent.
SECTION 1214. CERTAIN CONVERSIONS DEEMED PAYMENT.
For the purposes of this Article only, (1) the issuance and delivery
of junior securities upon repurchase or other acquisition of Securities pursuant
to Article Fourteen shall not be deemed to constitute a payment or distribution
on account of the principal of or premium or interest on, Securities or on
account of the purchase or other acquisition of Securities, and (2) the payment,
issuance or delivery of cash, property or securities (other than junior
securities) upon repurchase or other acquisition of a Security shall be deemed
to constitute payment on account of the principal of such Security. For the
purposes of this Section, the term "junior securities" means (a) shares of any
stock of any class of the Company and (b) securities of the Company which are
subordinated in right of payment to all Senior Indebtedness which may be
outstanding at the time of issuance or delivery of such securities to the same
extent as, or to a greater extent than, the Securities are so subordinated as
provided in this Article.
SECTION 1215. OFFICER'S CERTIFICATE.
If there occurs an event referred to in Section 1202 or 1203, the
Company shall promptly give to the Trustee an Officers' Certificate (upon which
the Trustee may conclusively
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rely unless it has actual knowledge to the contrary) which identifies the
holders of all Senior Indebtedness (or their trustee or other representative)
and the principal amount of Senior Indebtedness then outstanding by each such
holder.
ARTICLE THIRTEEN
Holders' Lists and Reports by Trustee and Company
SECTION 1301. COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF HOLDERS.
The Company will furnish or cause to be furnished to the Trustee:
(a) semiannually, not more than 15 days after each and
a list, in such form as the Trustee may reasonably require, of the names
and addresses of the Holders of Securities as of such Regular Record Date,
as the case may be; and
(b) at such other times as the Trustee may request in writing, within
30 days after the receipt by the Company of any such request, a list of
similar form and content, such list to be dated as of a date not more than
15 days prior to the time such list is furnished;
notwithstanding the foregoing subsections (a) and (b), at such times as the
Trustee is the Security Registrar and Paying Agent, no such list shall be
required to be furnished.
SECTION 1302. PRESERVATION OF INFORMATION; COMMUNICATIONS TO HOLDERS.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 1301 and the names and
addresses of Holders received by the Trustee in any capacity as Security
Registrar or Paying Agent. The Trustee may destroy any list furnished to it as
provided in Section 1301 upon receipt of a new list so furnished.
(b) The rights of Holders to communicate with other Holders with
respect to their rights under this Indenture or under the Securities, and the
corresponding rights and duties of the Trustee, shall be as provided by the
Trust Indenture Act.
(c) Every Holder of Securities, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor the Trustee
nor any agent of either of them shall be held accountable by reason of any
disclosure of information as to the names and addresses of Holders made pursuant
to the Trust Indenture Act.
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SECTION 1303. REPORTS BY TRUSTEE.
Within 60 days after May 15 of each year commencing with the year
1996, the Trustee shall transmit to Holders such reports concerning the Trustee
and its actions under this Indenture to the extent required pursuant to the
Trust Indenture Act at the times and in the manner provided pursuant thereto. A
copy of each such report shall, at the time of such transmission to Holders, be
filed by the Trustee with each stock exchange upon which the Securities are
listed, with the Commission and with the Company. The Company will promptly
notify the Trustee when the Securities are listed on any stock exchange.
SECTION 1304. REPORTS BY COMPANY.
The Company shall file with the Trustee and the Commission, and
transmit to Holders, such information, documents and other reports, and such
summaries thereof, as may be required pursuant to the Trust Indenture Act at the
times and in the manner provided pursuant to such Act; provided that any such
information, documents or reports required to be filed with the Commission
pursuant to Section 13 or 15(d) of the Exchange Act shall be filed with the
Trustee within 15 days after the same is so required to be filed with the
Commission.
ARTICLE FOURTEEN
Repurchase of Securities at the Option
of the Holder Upon Change in Control
SECTION 1401. RIGHT TO REQUIRE REPURCHASE.
In the event that there shall occur a Change in Control (as
hereinafter defined) with respect the Company, then each Holder of a Security
shall have the right, at the Holder's option, to require the Company to
repurchase, and upon the exercise of such right the Company shall repurchase,
all or any portion of such Holder's Securities (except that any Security must be
repurchased in $1,000 denominations or integral multiples thereof on the date
(the "Repurchase Date") that is 45 days after the date of the Company Notice (as
defined in Section 1402(A)) at a purchase price equal to 101% of the principal
amount of Securities to be repurchased (the "Repurchase Price"), together with
accrued interest, if any, to the Repurchase Date.
SECTION 1402. NOTICES; METHOD OF EXERCISING REPURCHASE RIGHT, ETC.
(a) Unless the Company shall have theretofore called for redemption
all the then Outstanding Securities pursuant to Article Eleven, on or before the
30th day after the occurrence of a Change in Control, the Company or, at the
written request of the Company, the
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Trustee, shall give at least once to all Holders in the manner provided in
Section 105 notice (the "Company Notice") of the occurrence of the Change in
Control and of the repurchase right set forth herein arising as a result
thereof. The Company shall also (a) concurrently with giving the Company Notice
referred to in the preceding sentence, mail a copy of such notice of a
repurchase right to holders of Senior Indebtedness in the manner provided for in
each such issue of Senior Indebtedness and (b) deliver a copy of such notice of
a repurchase right to the Trustee. The Company will comply with the
requirements of Rule 14e-1 under the Exchange Act and any other securities laws
and regulations thereunder to the extent such laws and regulations are
applicable in connection with the repurchase of Securities pursuant to a Change
of Control.
All notices of a repurchase right shall state:
(1) the Repurchase Date,
(2) the date by which the repurchase right must
be exercised,
(3) the Repurchase Price,
(4) a description of the procedure which a Holder must
follow to exercise a repurchase right, and
(5) the CUSIP Number applicable to the Securities.
No failure of the Company to give the foregoing notice or defect
therein shall limit any Holder's right to exercise a repurchase right or affect
the validity of the proceedings for the repurchase of Securities, if any.
(b) To exercise a repurchase right, a Holder shall deliver to the
Company at any office or agency of the Company maintained for that purpose
pursuant to Section 1002 on or before the 30th day after the date of the mailing
of the Company Notice the Securities to be so repurchased, duly endorsed or
assigned to the Company in blank, with the repurchase notice appearing on the
Security duly completed and executed. Such written notice shall be irrevocable.
(c) In the event a repurchase right shall be exercised in accordance
with the terms hereof, the Company shall pay or cause to be paid the Repurchase
Price in cash to the Holder on the Repurchase Date, together with accrued and
unpaid interest to the Repurchase Date payable with respect to the Securities as
to which the repurchase right has been exercised; provided, however, that
installments of interest on Securities which Stated Maturity is on or prior to
the Repurchase Date shall be payable to the Holders of such Securities, or one
or more Predecessor Securities, registered as such at the close of business on
the relevant Record Date according to their terms and the provisions of Section
306.
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(d) If any Security surrendered for repurchase shall not be so paid
on the Repurchase Date, the principal shall, until paid, bear interest to the
extent permitted by applicable law from the Repurchase Date at the rate borne by
the Security.
(e) Any Security which is to be repurchased only in part shall be
surrendered at any office or agency of the Company designated for that purpose
pursuant to Section 1002 (with, if the Company or the Trustee so requires from
Holders of Securities, due endorsement by, or a written instrument of transfer
in form satisfactory to the Company and the Trustee duly executed by, the holder
thereof or his attorney duly authorized in writing), and the Company 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 unrepurchased portion of the principal of the Security
so surrendered.
SECTION 1403. CERTAIN DEFINITIONS.
For purposes of this Article:
(a) the term "Associate" of any Person, means (1) any corporation or
organization (other than the Company or a Subsidiary of the Company or any
Person controlled directly or indirectly (as defined in the definitions of
Affiliate in Section 101) by the Company or a Subsidiary of the Company) of
which such Person is an officer or general partner or is, directly or
indirectly, the beneficial owner of 10% or more of any class of equity
securities, (2) any trust or other estate in which such Person has a
substantial beneficial interest or as to which such Person serves as
trustee or in a similar fiduciary capacity, and (3) any relative or spouse
of such Person, or any relative of such spouse, who has the same home as
such Person or who is a director or officer of the Company or any of its
parents or Subsidiaries;
(b) the term "beneficial owner" shall be determined in accordance
with Rule 13d-3, as in effect on the Issue Date, promulgated by the
Securities and Exchange Commission pursuant to the Exchange Act and for the
purpose of this Article Fourteen, "Person" shall include any syndicate or
group which would be deemed to be a "person" under Section 13(d)(3) of such
Act as in effect on the date of the original execution of this Indenture,
and beneficial ownership of any Person shall include beneficial ownership
by any Associate of such Person; and
(c) a "Change in Control" of the Company shall be deemed to have
occurred at such time as (i) any Person (including any syndicate or group
deemed to be a "person" under Section 13(d)(3) of the Exchange Act) is or
becomes the beneficial owner, directly or indirectly, through a purchase,
merger or other acquisition transaction or series of transactions, of more
than 40% of the total voting power of all shares of Capital Stock of the
Company entitled to vote in elections of directors, (ii) during any period
of two
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consecutive years, individuals who at the beginning of such period
constituted the Board of Directors of the Company (together with any new
directors whose election by such Board or whose nomination for election by
the shareholders of the Company was approved by a vote of a majority of the
directors of the Company still in office who were either directors at the
beginning of such period or whose election or nomination for election was
previously so approved) cease for any reason to constitute a majority of
the Board of Directors of the Company then in office, or (iii) the Company
consolidates with or merges with or into another corporation or conveys,
transfers or leases all or substantially all of its assets to any person,
in either event pursuant to a transaction in which the outstanding shares
of capital stock of the Company entitled to vote in the election of
directors is changed into or exchanged for cash, securities or other
property (excluding, however, any such transaction where the outstanding
shares of the Company entitled to vote in the election of directors is
changed into or exchanged for (x) voting stock of the surviving or
transferee corporation which is neither Disqualified Capital Stock nor
Exchangeable Stock or (y) cash, securities and other property in an amount
which could be paid by the Company as a Restricted Payment (and such amount
will be treated as a Restricted Payment for all purposes of the
Indenture)).
ARTICLE FIFTEEN
Defeasance and Covenant Defeasance
SECTION 1501. COMPANY'S OPTION TO EFFECT DEFEASANCE
OR COVENANT DEFEASANCE.
The Company may elect, at its option at any time, to have Section 1502
or Section 1503 applied to the Outstanding Securities (as a whole and not in
part) upon compliance with the conditions set forth below in this Article. Any
such election shall be evidenced by a Board Resolution.
SECTION 1502 DEFEASANCE AND DISCHARGE.
Upon the Company's exercise of its option to have this Section applied
to the Outstanding Securities (as a whole and not in part), the Company shall be
deemed to have been discharged from its obligations with respect to such
Securities as provided in this Section on and after the date the conditions set
forth in Section 1504 are satisfied (hereinafter called "Defeasance"), and
thereafter such Securities shall not be subject to redemption pursuant thereto.
For this purpose, such Defeasance means that the Company shall be deemed to have
paid and discharged the entire indebtedness represented by such Securities and
to have satisfied all its other obligations under such Securities and this
Indenture insofar as such Securities are concerned (and the Trustee, at the
expense of the Company, shall execute proper instruments acknowledging the
same), subject to the following which shall survive until otherwise terminated
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or discharged hereunder: (1) the rights of Holders of such Securities to
receive, solely from the trust fund described in Section 1504 and as more fully
set forth in such Section, payments in respect of the principal of and any
premium and interest on such Securities when payments are due, (2) the Company's
obligations with respect to such Securities under Sections 305, 306, 1002 and
1003, (3) the rights, powers, trusts, duties and immunities of the Trustee
hereunder and (4) this Article. Subject to compliance with this Article, the
Company may exercise its option to have this Section applied to the then
Outstanding Securities (as a whole and not in part) notwithstanding the prior
exercise of its option to have Section 1503 applied to such Securities.
SECTION 1503. COVENANT DEFEASANCE.
Upon the Company's exercise of its option to have this Section applied
to the Outstanding Securities (as a whole and not in part), (1) the Company
shall be released from its obligations under Sections 1005 through 1011,
inclusive, Sections 1014 and 1016 and any covenant provided pursuant to Section
801(2) and (2) the occurrence of any event specified in Section 501(3)(a) (with
respect to any of Sections 1005 through 1011, inclusive, Section 1014 and any
such covenants provided pursuant to Section 801(2)) or Section 501(5) shall be
deemed not to be or result in an Event of Default, in each case with respect to
such Securities as provided in this Section on and after the date the conditions
set forth in Section 1504 are satisfied (hereinafter called "Covenant
Defeasance"). For this purpose, such Covenant Defeasance means that, with
respect to such Securities, the Company may omit to comply with and shall have
no liability in respect of any term, condition or limitation set forth in any
such specified Section (to the extent so specified in the case of Section
501(5)), whether directly or indirectly, by reason of any reference elsewhere
herein to any such Section or by reason of any reference in any such Section to
any other provision herein or in any other document, but the remainder of this
Indenture and such Securities shall be unaffected thereby.
SECTION 1504. CONDITIONS TO DEFEASANCE OR COVENANT
DEFEASANCE.
The following shall be the conditions to the application of Section
1502 or Section 1503 to the Outstanding Securities:
(1) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee which satisfies the
requirements contemplated by Section 607 and agrees to comply with the
provisions of this Article applicable to it) as trust funds in trust for
the purpose of making the following payments, specifically pledged as
security for, and dedicated solely to, the benefits of the Holders of such
Securities, (A) money in an amount, or (B) U.S. Government Obligations
which through the scheduled payment of principal and interest in respect
thereof in accordance with their terms will provide, not later than one day
before the due date of any payment, money in an amount, or (C) a
combination thereof, in each case sufficient, in the opinion of a
nationally recognized firm of independent public accountants expressed in a
written
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certification thereof delivered to the Trustee, to pay and discharge, and
which shall be applied by the Trustee (or any such other qualifying
trustee) to pay and discharge, the principal of and any instalment of
interest on such Securities then outstanding, in accordance with the terms
of this Indenture and such Securities. As used herein, "U.S. Government
Obligation" means (x) any security which is (i) a direct obligation of the
United States of America for the payment of which the full faith and credit
of the United States of America is pledged or (ii) an obligation of a
Person controlled or supervised by and acting as an agency or
instrumentality of the United States of America the payment of which is
unconditionally guaranteed as a full faith and credit obligation by the
United States of America, which, in either case (i) or (ii), is not
callable or redeemable at the option of the issuer thereof, and (y) any
depositary receipt issued by a bank (as defined in Section 3(a) (2) of the
Securities Act) as custodian with respect to any U.S. Government Obligation
which is specified in clause (x) above and held by such bank for the
account of the holder of such depositary receipt, or with respect to any
specific payment of principal of or interest on any U.S. Government
Obligation which is so specified and held, PROVIDED that (except as
required by law) such custodian is not authorized to make any deduction
from the amount payable to the holder of such depositary receipt from any
amount received by the custodian in respect of the U.S. Government
Obligation or the specific payment of principal or interest evidenced by
such depositary receipt.
(2) In the event of an election to have Section 1502 apply to the
Outstanding Securities, the Company shall have delivered to the Trustee an
Opinion of Counsel stating that (A) the Company has received from, or there
has been published by, the Internal Revenue Service a ruling or (B) since
the date of this instrument, there has been a change in the applicable
Federal income tax law, in either case (A) or (B) to the effect that, and
based thereon such opinion shall confirm that, the Holders of such
Securities will not recognize gain or loss for Federal income tax purposes
as a result of the deposit, Defeasance and discharge to be effected with
respect to such Securities and will be subject to Federal income tax on the
same amount, in the same manner and at the same times as would be the case
if such deposit, Defeasance and discharge were not to occur.
(3) In the event of an election to have Section 1503 apply to the
Outstanding Securities, the Company shall have delivered to the Trustee an
Opinion of Counsel to the effect that the Holders of such Securities will
not recognize gain or loss for Federal income tax purposes as a result of
the deposit and Covenant Defeasance to be effected with respect to such
Securities and will be subject to Federal income tax on the same amount, in
the same manner and at the same times as would be the case if such deposit
and Covenant Defeasance were not to occur.
(4) No Default with respect to the Outstanding Securities shall have
occurred and be continuing at the time of such deposit or, with regard to
any such event specified in Sections 501(6) and (7), at any time on or
prior to the 90th day after the date of such
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deposit (it being understood that this condition shall not be deemed
satisfied until after such 90th day).
(5) Such Defeasance or Covenant Defeasance shall not cause the
Trustee to have a conflicting interest within the meaning of the Trust
Indenture Act (assuming all Securities are in default within the meaning of
such Act).
(6) Such Defeasance or Covenant Defeasance shall not result in a
breach or violation of, or constitute a default under, this Indenture or
any other agreement or instrument to which the Company is a party or by
which it is bound.
(7) Such Defeasance or Covenant Defeasance shall not result in the
trust arising from such deposit constituting an investment company within
the meaning of the Investment Company Act of 1940 unless such trust shall
be registered under such Act or exempt from registration thereunder.
(8) The Company shall have delivered to the Trustee an Opinion of
Counsel to the effect that (A) the trust funds will not be subject to any
rights of holders of Senior Indebtedness, including, without limitation,
those arising under this Indenture and (B) after the 91st day following the
deposit, the trust funds will not be subject to the effect of any
applicable bankruptcy, insolvency, reorganization or similar laws affecting
creditors' rights generally.
(9) No event or condition shall exist that would prevent the Company
from making payments of the principal of and interest on the Securities on
the date of such deposit or at any time ending on the 91st day after the
date of such deposit.
(10) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent with respect to such Defeasance or Covenant Defeasance have been
complied with.
In the event all or any portion of the Securities are to be redeemed
through such irrevocable trust, the Company must make arrangements satisfactory
to the Trustee, at the time of such deposit, for the giving of notice of such
redemption or redemptions by the Trustee in the name and at the expense of the
Company.
In the event that the Company takes the necessary action to comply with the
provisions described in this Section 1504 and the Securities are declared due
and payable because of the occurrence of an Event of Default, the Company will
remain liable for all amounts due on the Securities at the time of acceleration
resulting from such Event of Default in excess of the amount of money and U.S.
Government Obligations deposited with the Trustee pursuant to this Section 1504
at the time of such acceleration.
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SECTION 1505. DEPOSITED MONEY AND U.S. GOVERNMENT OBLIGATIONS
TO BE HELD IN TRUST; MISCELLANEOUS PROVISIONS.
Subject to the provisions of the last paragraph of Section 1003, all
money and U.S. Government Obligations (including the proceeds thereof) deposited
with the Trustee or other qualifying trustee (solely for purposes of this
Section and Section 1506, the Trustee and any such other trustee are referred to
collectively as the ("Trustee") pursuant to Section 1504 in respect of the then
Outstanding Securities shall be held in trust and applied by the Trustee, in
accordance with the provisions of such Securities and this Indenture, to the
payment, either directly or through any such Paying Agent (including the Company
acting as its own Paying Agent) as the Trustee may determine, to the Holders of
such Securities, of all sums due and to become due thereon in respect of
principal and any premium and interest, but money so held in trust need not be
segregated from other funds except to the extent required by law.
The Company shall pay and indemnify the Trustee against any tax, fee
or other charge imposed on or assessed against the U.S. Government Obligations
deposited pursuant to Section 1504 or the principal and interest received in
respect thereof other than any such tax, fee or other charge which by law is for
the account of the Holders of Outstanding Securities.
Anything in this Article to the contrary notwithstanding, the Trustee
shall deliver or pay to the Company from time to time upon Company Request any
money or U.S. Government Obligations held by it as provided in Section 1504
which, in the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to the
Trustee, are in excess of the amount thereof which would then be required to be
deposited to effect the Defeasance or Covenant Defeasance, as the case may be,
with respect to the Outstanding Securities.
SECTION 1506. REINSTATEMENT.
If the Trustee or the Paying Agent is unable to apply any money in
accordance with this Article with respect to any Securities by reason of any
order or judgment of any court or governmental authority enjoining, restraining,
or otherwise prohibiting such application, then the obligations under this
Indenture and such Securities from which the Company has been discharged or
released pursuant to Section 1502 or 1503 shall be revived and reinstated as
though no deposit had occurred pursuant to this Article with respect to such
Securities, until such time as the Trustee or Paying Agent is permitted to apply
all money held in trust pursuant to Section 1505 with respect to such Securities
in accordance with this Article; PROVIDED, HOWEVER, that if the Company makes
any payment of principal of or any premium or interest on any such Security
following such reinstatement of its obligations, the Company shall be subrogated
to the rights (if any) of the Holders of such Securities to receive such payment
from the money so held in trust.
____________________
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This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this indenture to
be duly executed, and their respective corporate seals to be hereunto affixed
and attested, all as of the day and year first above written.
COMMNET CELLULAR INC.
By
----------------------
Name:
Title:
Attest:
- -------------------------
AMERICAN BANK NATIONAL
ASSOCIATION
as Trustee
By
-----------------------
Name:
Title:
Attest:
- -------------------------
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