1
7
will notify the Unit Agent of any additional requirements in connection with a
particular transfer or exchange.
Following the Separability Date, no Unit Certificates shall be
issued upon transfer or exchange of Unit Certificates, or otherwise.
SECTION 7. Rights of Unit Holders. The registered owner of
a Unit Certificate shall have all the rights and privileges of a registered
owner of the principal amount of Notes represented thereby and the number of
Warrants represented thereby and shall be treated as the registered owner
thereof for all purposes. The Company agrees that it shall be bound by all
provisions of the Indenture, the Notes, the Warrant Agreement and the Warrants
and that the Notes and Warrants represented by each Unit Certificate shall be
deemed legal, valid and binding obligations of the Company and that upon
exercise of the Warrants, the Warrant Shares will be validly issued, fully paid
and nonassessable.
SECTION 8. Unit Agent. The Unit Agent undertakes the duties
and obligations imposed by this Agreement upon the following terms and
conditions, by which the Company and the holders of Units, by their acceptance
thereof, shall be bound:
(a) The statements contained herein and in the Unit
Certificates shall be taken as statements of the Company, and the Unit
Agent assumes no responsibility for the correctness of any of the
same, other than with respect to the certificate of authentication,
except such as describe the Unit Agent or action taken or to be taken
by it. The Unit Agent assumes no responsibility with respect to the
distribution of the Unit Certificates except as herein otherwise
specifically provided.
(b) The Unit Agent shall not be responsible for any
failure of the Company to comply with any of the covenants in this
Agreement, Unit Certificates, the Indenture or the Warrant Agreement
to be complied with by the Company.
(c) The Unit Agent may consult at any time with counsel
satisfactory to it (who may be counsel for the Company) and the Unit
Agent shall incur no liability or responsibility to the Company or to
any holder of any Unit Certificate in respect of any action taken,
suffered or omitted by it hereunder in good faith and in accordance
with the written opinion or the written advice of such counsel.
(d) The Unit Agent shall incur no liability or
responsibility to the Company or to any holder of any Unit Certificate
for any action taken in reliance on any Unit Certificate, certificate
of shares, notice, resolution, waiver, consent, order, certificate, or
other paper, document or instrument reasonably believed by the Unit
Agent
2
8
to be genuine and to have been signed, sent or presented by the proper
party or parties.
(e) The Company agrees to pay to the Unit Agent
reasonable compensation for all services rendered by the Unit Agent in
connection with this Agreement, to reimburse the Unit Agent for all
expenses, taxes and governmental charges and other charges of any kind
and nature incurred by the Unit Agent in connection with this
Agreement and to indemnify the Unit Agent and save it harmless against
any and all losses and liabilities, including judgments, costs and
counsel fees and actual expenses, for any action taken or omitted by
the Unit Agent or arising in connection with this Agreement and the
exercise by the Unit Agent of its rights hereunder and the performance
by the Unit Agent of any of its obligations hereunder except as a
result of the Unit Agent's gross negligence or bad faith or willful
misconduct.
(f) The Unit Agent, and any stockholder, director,
officer, affiliate or employee ("Related Parties") of it, may buy,
sell or deal in any of the Units, Notes, Warrants, Class B Common
Stock or other securities of the Company or become pecuniarily
interested in any transaction in which the Company may be interested,
or contract with or lend money to the Company or otherwise act as
fully and freely as though it were not Unit Agent under this
Agreement. Nothing herein shall preclude the Unit Agent or such
Related Parties from acting in any other capacity for the Company or
for any other legal entity.
(g) The Unit Agent shall act hereunder solely as agent
for the Company, the Trustee and the Warrant Agent, and its duties
shall be determined solely by the provisions hereof. The Unit Agent
shall not be liable for anything which it may do or refrain from doing
in connection with this Agreement except for its own gross negligence
or bad faith or willful misconduct.
(h) No provision of this Agreement shall require the Unit
Agent 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.
(i) The Unit Agent shall be under no obligation to
institute any action, suit or legal proceeding or to take any other
action unless the Company or one or more registered holders of Unit
Certificates shall furnish the Unit Agent with security and indemnity
for any costs and expenses which may be incurred acceptable to the
Unit Agent. This provision shall not affect the power of the Unit
Agent to
3
9
take such action as it may consider proper, whether with or without
any such security or indemnity.
All rights of action under this Agreement or under any of the Units
may be enforced by the Unit Agent without the possession of any of the
Unit Certificates or the production thereof at any trial or other
proceeding relative thereto, and any such action, suit or proceeding
instituted by the Unit Agent shall be brought in its name as Unit
Agent and any recovery of judgment shall be for the ratable benefit of
the registered holders of the Units, as their respective rights or
interests may appear.
(j) Before the Unit Agent acts or refrains from acting
with respect to any matter contemplated by this Unit Agreement, it may
require:
(1) an Officers' Certificate stating that, in the
opinion of the signers, all conditions precedent, if any,
provided for in this Unit Agreement relating to the proposed
action have been complied with; and
(2) an opinion of counsel for the Company stating
that, in the opinion of such counsel, all such conditions
precedent have been complied with.
Each Officers' Certificate or opinion of counsel with respect
to compliance with a condition or covenant provided for in this Unit Agreement
shall include:
(1) a statement that the person making such
certificate or opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope
of the examination or investigation upon which the statements
or opinions contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such
person, he or she has made such examination or investigation
as is necessary to enable him or her 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 such person, such condition or covenant has been
complied with.
The Unit Agent shall not be liable for any action it takes or
omits to take in good faith in reliance on any such certificate or opinion.
4
10
(k) In the absence of bad faith on its part, the Unit
Agent 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 Unit Agent and conforming to the
requirements of this Unit Agreement. However, the Unit Agent shall
examine the certificates and opinions to determine whether or not they
conform to the requirements of this Unit Agreement.
(l) The Unit Agent may rely and shall be fully protected
in relying upon any document believed by it to be genuine and to have
been signed or presented by the proper person. The Unit Agent need
not investigate any fact or matter stated in the document.
(m) The Unit Agent may act through agents and shall not
be responsible for the misconduct or negligence of any agent appointed
with due care.
SECTION 9. Resignation and Appointment of
Successor. (a) The Company agrees, for the benefit of the holders from time
to time of the Unit Certificates, that there shall at all times be a Unit Agent
hereunder.
(b) The Unit Agent may at any time resign as Unit Agent
by giving written notice to the Company of such intention on its part,
specifying the date on which its desired resignation shall become effective,
provided that such date shall be at least 90 days after the date on which such
notice is given unless the Company agrees to accept less notice. Upon
receiving such notice of resignation, the Company shall promptly appoint a
successor Unit Agent, qualified as provided in Section 9(d) hereof, by written
instrument in duplicate signed on behalf of the Company, one copy of which
shall be delivered to the resigning Unit Agent and one copy to the successor
Unit Agent. As provided in Section 9(d) hereof, such resignation shall become
effective upon the earlier of (x) the acceptance of the appointment by the
successor Unit Agent or (y) 90 days after receipt by the Company of notice of
such resignation. The Company may, at any time and for any reason, and shall,
upon any event set forth in the next succeeding sentence, remove the Unit Agent
and appoint a successor Unit Agent by written instrument in duplicate,
specifying such removal and the date on which it is intended to become
effective, signed on behalf of the Company, one copy of which shall be
delivered to the Unit Agent being removed and one copy to the successor Unit
Agent. The Unit Agent shall be removed as aforesaid if it shall become
incapable of acting, or shall be adjudged a bankrupt or insolvent, or a
receiver of the Unit Agent or of its property shall be appointed, or any public
officer shall take charge or control of it or of its property or affairs for
the purpose of rehabilitation, conservation or liquidation. Any removal of the
Unit Agent and any appointment of a successor Unit Agent shall become effective
upon acceptance of appointment by the successor Unit Agent as provided in
Section
5
11
9(d). As soon as practicable after appointment of the successor Unit Agent,
the Company shall cause written notice of the change in the Unit Agent to be
given to each of the registered holders of the Units in the manner provided for
in Section 10 hereof.
(c) Upon resignation or removal of the Unit Agent, if the
Company shall fail to appoint a successor Unit Agent within a period of 90 days
after receipt of such notice of resignation or removal, then the holder of any
Unit Certificate or the Unit Agent may apply to a court of competent
jurisdiction for the appointment of a successor to the Unit Agent. Pending
appointment of a successor to the Unit Agent, either by the Company or by such
a court, the duties of the Unit Agent shall be carried out by the Company.
(d) Any successor Unit Agent, whether appointed by the
Company or by a court, shall be a bank or trust company in good standing,
incorporated under the laws of the United States of America or any State
thereof and having, at the time of its appointment, a combined capital surplus
of at least $50 million. Such successor Unit Agent shall execute and deliver
to its predecessor and to the Company an instrument accepting such appointment
hereunder and all the provisions of this Agreement, and thereupon such
successor Unit Agent, without any further act, deed or conveyance, shall become
vested with all the rights, powers, duties and obligations of its predecessor
hereunder, with like effect as if originally named as Unit Agent hereunder, and
such predecessor shall thereupon become obligated to (i) transfer and deliver,
and such successor Unit Agent shall be entitled to receive, all securities,
records or other property on deposit with or held by such predecessor as Unit
Agent hereunder and (ii) upon payment of the amounts then due it pursuant to
Section 8(e) hereof, pay over, and such successor Unit Agent shall be entitled
to receive, all monies deposited with or held by any predecessor Unit Agent
hereunder.
(e) Any corporation or bank into which the Unit Agent
hereunder may be merged or converted, or any corporation or bank with which the
Unit Agent may be consolidated, or any corporation or bank resulting from any
merger, conversion or consolidation to which the Unit Agent shall be a party,
or any corporation or bank to which the Unit Agent shall sell or otherwise
transfer all or substantially all of its corporate trust business, shall be the
successor to the Unit Agent under this Agreement (provided that such
corporation or bank shall be qualified as aforesaid) without the execution or
filing of any document or any further act on the part of any of the parties
hereto.
(f) No Unit Agent under this Unit Agreement shall be
personally liable for any action or omission of any successor Unit Agent.
SECTION 10. Notices to the Company and Unit Agent, Trustee
and Warrant Agent. Any notice or demand authorized by
6
12
this Agreement to be given or made to or on the Company shall be sufficiently
given or made when and if deposited in the mail, first class or registered,
postage paid, addressed
If to the Company:
PCS Development Corporation
15 South Main Street
Suite 810
Greenville, South Carolina 29601
Attention: Chief Executive Officer
If to the Unit Agent, Warrant Agent or the Trustee:
United States Trust Company of New York
114 West 47th Street
New York, New York 10036
Attention: _____________________
The parties hereto by notice to the other parties may
designate additional or different addresses for subsequent communications or
notice.
Any notice to be mailed to a holder of Units shall be mailed
to him or her at the address that appears on the register of Units maintained
by the Unit Agent. Copies of any such communication shall also be mailed to
the Unit Agent, Trustee and Warrant Agent. The Unit Agent shall furnish the
Company, the Trustee or the Warrant Agent promptly when requested with a list
of registered holders of Units for the purpose of mailing any notice or
communication to the holders of the Notes or Warrants and at such other times
as may be reasonably requested.
SECTION 11. Supplements and Amendments. The Company and the
Unit Agent may from time to time supplement or amend this Agreement without the
approval of any holders of Unit Certificates in order to cure any ambiguity or
to correct or supplement any provision contained herein which may be defective
or inconsistent with any other provision herein, or to make any other
provisions in regard to matters or questions arising hereunder which the
Company, the Trustee, the Warrant Agent and the Unit Agent may deem necessary
or desirable and which shall not in any way materially and adversely affects
the interests of the holders of Unit Certificates. Any amendment or supplement
to this Agreement that has a material adverse effect on the interests of Unit
holders shall require the written consent of registered holders of the then
outstanding Units representing not less than a majority in principal amount of
the then outstanding Units.
SECTION 12. Successors. All the covenants and provisions of
this Agreement by or for the benefit of the Company, the Trustee, the Warrant
Agent or the Unit Agent shall
7
13
bind and inure to the benefit of their respective successors and assigns
hereunder.
SECTION 13. Governing Law. THIS AGREEMENT AND EACH UNIT
CERTIFICATE ISSUED HEREUNDER SHALL BE DEEMED TO BE A CONTRACT MADE UNDER THE
LAWS OF THE STATE OF NEW YORK AND SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF SAID STATE, WITHOUT REGARD TO THE CONFLICT OF LAW
RULES THEREOF.
SECTION 14. Benefits of This Agreement. Nothing in this
Agreement shall be construed to give to any person or corporation other than
the Company, the Trustee, the Warrant Agent, the Unit Agent and the registered
holders of the Unit Certificates any legal or equitable right, remedy or claim
under this Agreement; but this Agreement shall be for the sole and exclusive
benefit of the Company, the Trustee, the Warrant Agent, the Unit Agent and the
registered holders of the Unit Certificates.
SECTION 15. Counterparts. This Agreement may be executed in
any number of counterparts and each of such counterparts shall for all purposes
be deemed to be an original, and all such counterparts shall together
constitute but one and the same instrument.
8
14
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed, as of the day and year first above written.
PCS DEVELOPMENT CORPORATION
By:
-------------------------------------
Name:
Title:
UNITED STATES TRUST COMPANY OF
NEW YORK, as Unit Agent
By:
-------------------------------------
Name:
Title:
UNITED STATES TRUST COMPANY OF
NEW YORK, as Trustee
By:
-------------------------------------
Name:
Title:
UNITED STATES TRUST COMPANY OF
NEW YORK, as Warrant Agent
By:
-------------------------------------
Name:
Title:
9
EXHIBIT A
[FORM OF UNIT CERTIFICATE]
THE NOTE COMPRISING A PART OF THIS SECURITY WAS ISSUED WITH
ORIGINAL ISSUE DISCOUNT WITHIN THE MEANING OF SECTION 1273(a) OF THE INTERNAL
REVENUE CODE OF 1986. THE ISSUE PRICE IS $___ FOR EACH $1,000 OF STATED
PRINCIPAL AMOUNT. THE ORIGINAL ISSUE DISCOUNT IS $__ FOR EACH $1,000 OF STATED
PRINCIPAL AMOUNT. THE ISSUE DATE IS ________, 1996. THE YIELD TO MATURITY IS
_____% COMPOUNDED SEMIANNUALLY. ORIGINAL ISSUE DISCOUNT WILL BE ALLOCATED
BASED ON ACCRUAL PERIODS ENDING ON EACH DATE ON WHICH AN INTEREST PAYMENT IS
DUE AND THE 360 DAYS PER YEAR CONVENTION.
THE EXERCISE OF THE WARRANTS COMPRISING A PART OF THIS
SECURITY (AND THE OWNERSHIP OF CLASS B COMMON STOCK ISSUABLE UPON THE EXERCISE
THEREOF) MAY BE LIMITED BY THE COMPANY IN ORDER TO ENSURE COMPLIANCE WITH THE
RULES AND REGULATIONS OF THE FEDERAL COMMUNICATIONS COMMISSION (THE "FCC"), AND
THE WARRANTS WILL NOT BE EXERCISABLE BY ANY HOLDER IF SUCH EXERCISE WOULD CAUSE
THE COMPANY TO BE IN VIOLATION OF THE COMMUNICATIONS ACT OR THE FCC'S RULES,
REGULATIONS OR POLICIES.
PCS DEVELOPMENT CORPORATION
Units Consisting of $___________ Aggregate Principal Amount ____% Senior
Discount Notes due 2006 and Warrants to Purchase ______ Warrant Shares of Class
B Common Stock
No. _____ CUSIP No. ____
PCS Development Corporation, a Delaware corporation (the
"Company," which term includes any successor corporation), hereby certifies
that ___________________ is the owner of ______ Units as described above,
transferable only on the books of the Company by the holder thereof in person
or by his or her duly authorized attorney, on surrender of the Certificate
properly endorsed.
Each Unit consists of one $1,000 principal amount _____%
Senior Discount Note due 2006 of the Company (collectively, the "Notes") and
___ warrants (collectively, the "Warrants") to purchase ___ shares of Class B
Common Stock of the Company, par value $1.00 per share (the "Class B Common
Stock"). This Unit is issued pursuant to the Unit Agreement (the "Unit
Agreement") dated as of ________, 1996 between the Company and United States
Trust Company of New York, (the "Unit Agent") and is subject to the terms and
provisions contained therein, to all of which terms and provisions the holder
of this Unit Certificate consents by acceptance hereof. The terms of the Notes
are governed by an Indenture (the "Indenture") dated as of ________, 1996
between the Company and United States Trust Company of New York, as Trustee
(the "Trustee"), and are subject to the terms and provisions contained therein,
to all of which terms and provisions the holder of this Unit Certificate
consents by acceptance hereof.
A-1
10
The terms of the Warrants are governed by a Warrant Agreement
dated __________, 1996 (the "Warrant Agreement") between the Company and United
States Trust Company of New York, as Warrant Agent (the "Warrant Agent") and
are subject to the terms and provisions contained therein, to all of which
terms and provisions the holder of this Unit Certificate consents by acceptance
hereof. The Company will furnish to any Holder of a Security upon written
request and without charge a copy of the Unit Agreement, the Indenture and the
Warrant Agreement. Requests may be made to: PCS Development Corporation, 15
South Main Street, Suite 810, Greenville, South Carolina 29601, Attn: Chief
Financial Officer.
The Notes and Warrants represented by this Unit Certificate
shall be non-detachable and not separately transferable until the earliest to
occur of: (i) _______, 1996, (ii) such earlier date as may be determined by
Lehman Brothers Inc. and specified to the Company, the Trustee, the Warrant
Agent and the Unit Agent in writing, (iii) the occurrence of a Change of
Control, and (iv) in the event of an Offer to Purchase in connection with any
Asset Sale (each as defined in the Indenture) the date the Company mails notice
thereof to the holders of the Notes.
Dated:
PCS DEVELOPMENT CORPORATION
By:
-------------------------------------
Name:
Title:
By:
-------------------------------------
Name:
Title:
Certificate of Authentication: This
is one of the Units referred to
in the above mentioned Unit
Agreement.
UNITED STATES TRUST COMPANY OF
NEW YORK, as Unit Agent
By:
--------------------------------------
Authorized Signatory
A-2
11
PCS DEVELOPMENT CORPORATION
Units Consisting of $___________ Aggregate Principal Amount of _____%
Senior Discount Notes due 2006 and Warrants to Purchase ______ Shares
of Class B Common Stock
I. PROVISIONS RELATING TO THE NOTES
1. Principal and Interest.
The Company will pay the principal of this Note on ________,
2006.
The Company promises to pay interest on the principal amount
of this Note on each Interest Payment Date, as set forth below, at the rate per
annum shown above (subject to adjustment as provided below).
Interest will be payable semiannually (to the holders of
record of the Notes at the close of business on the _______ or _______
immediately preceding the Interest Payment Date) on each Interest Payment Date,
commencing _______, 2001; provided that no interest shall accrue on the
principal amount of this Note prior to _______, 2001 and no interest shall be
paid on this Note prior to _______, 2001.
From and after _______, 2001, interest on the Notes will
accrue from the most recent date to which interest has been paid or, if no
interest has been paid, from _______, 2001; provided that, if there is no
existing default in the payment of interest and this Note is authenticated
between a Regular Record Date referred to on the face hereof and the next
succeeding Interest Payment Date, interest shall accrue from such Interest
Payment Date. Interest will be computed on the basis of a 360-day year of
twelve 30-day months.
The Company shall pay interest on overdue principal and
premium, if any, and interest on overdue installments of interest, to the
extent lawful, at a rate per annum that is ___% in excess of the rate otherwise
payable.
2. Method of Payment.
The Company will pay principal provided above and interest
(except defaulted interest) on the principal amount of the Notes as provided
above on each _______ and _______ to the persons who are Holders (as reflected
in the Security Register at the close of business on _______ and _______
immediately
12
preceding the Interest Payment Date), in each case, even if the Note is
canceled on registration of transfer or registration of exchange after such
record date; provided that, with respect to the payment of principal, the
Company will not make payment to the Holder unless this Note is surrendered to
a Paying Agent.
The Company will pay principal, premium, if any, and, as
provided above, interest in money of the United States that at the time of
payment is legal tender for payment of public and private debts. However, the
Company may pay principal, premium, if any, and interest by its check payable
in such money. It may mail an interest check to a Holder's registered address
(as reflected in the Security Register). If a payment date is a date other
than a Business Day at a place of payment, payment may be made at that place on
the next succeeding day that is a Business Day and no interest shall accrue for
the intervening period.
3. Paying Agent and Registrar.
Initially, the Trustee will act as authenticating agent,
Paying Agent and Registrar. The Company may change any authenticating agent,
Paying Agent or Registrar without notice. The Company, any Subsidiary or any
Affiliate of any of them may act as Paying Agent, Registrar or co-Registrar.
4. Indenture; Limitations.
The Company issued the Notes under an Indenture dated as of
July __, 1996 (the "Indenture"), between the Company and United States Trust
Company of New York, as trustee (the "Trustee"). Capitalized terms herein are
used as defined in the Indenture unless otherwise indicated. The terms of the
Notes include those stated in the Indenture and those made part of the
Indenture by reference to the TIA. The Notes are subject to all such terms,
and Holders are referred to the Indenture and the TIA for a statement of all
such terms. To the extent permitted by applicable law, in the event of any
inconsistency between the terms of this Note and the terms of the Indenture,
the terms of the Indenture shall control.
The Notes are senior, unsecured obligations of the Company
ranking pari passu in right of payment with all existing and future
unsubordinated unsecured Indebtedness of the Company and senior in right of
payment to all existing and future subordinated Indebtedness of the Company.
The Indenture limits the original aggregate principal amount at maturity of the
Notes to $_______.
5. Optional Redemption.
The Notes will be redeemable, at the Company's option, in
whole or in part, at any time or from time to time, on or after ,
2001 and prior to maturity, upon not less than 30 nor more than 60 days' prior
notice mailed by first class
-2-
13
mail to each Holders' last address as it appears in the Security Register, at
the following Redemption Prices (expressed in percentages of principal amount
at maturity), plus accrued and unpaid interest, if any, to the Redemption Date
(subject to the right of Holders of record on the relevant Regular Record Date
that is on or prior to the Redemption Date to receive interest due on an
Interest Payment Date), if redeemed during the 12-month period commencing on
_______ __ of the applicable years set forth below:
Redemption
YEAR Price
---- -----
2001 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . %
2002 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . %
2003 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . %
2004 and thereafter . . . . . . . . . . . . . . . . . . . . . . . 100.000%
Notwithstanding the foregoing, prior to , 1999,
the Company may on any one or more occasions redeem up to 33% of the aggregate
principal amount of the Notes at a redemption price of % of the Accreted
Value thereof with the net proceeds of either (A) one or more public offerings
of common stock of the Company registered under the Securities Act or (B) a
sale by the Company of at least $25.0 million of its Capital Stock (other than
Redeemable Stock or Preferred Stock) to a Strategic Equity Investor in a single
transaction; provided in each case that at least 67% of the aggregate principal
amount at maturity of the Notes remains outstanding immediately after the
occurrence of any such redemption; and provided, further, that any such
redemption shall occur within 90 days of the date of the closing of any such
public offering of common stock or sale to Strategic Equity Investor of Capital
Stock (other than Redeemable Stock or Preferred Stock) of the Company, as the
case may be.
6. Notice of Redemption.
Notice of any optional redemption will be mailed at least 30
days but not more than 60 days before the Redemption Date to each Holder of
Notes to be redeemed at his last address as it appears in the Security
Register. Notes in original denominations larger than $1,000 may be redeemed
in part. On and after the Redemption Date, interest ceases to accrue on Notes
or portions of Notes called for redemption, unless the Company defaults in the
payment of the Redemption Price.
7. Repurchase upon Change in Control.
Within 30 days of the occurrence of any Change of Control,
each Holder shall have the right to require the repurchase of its Notes by the
Company in cash pursuant to the offer described in the Indenture at a purchase
price equal to 101% of the Accreted Value thereof plus accrued and unpaid
-3-
14
interest, if any, to the date of purchase (the "Change of Control Payment").
A notice of such Change of Control will be mailed within 30
days after any Change of Control occurs to each Holder at his last address as
it appears in the Security Register. Notes in original denominations larger
than $1,000 may be sold to the Company in part. On and after the Change of
Control Payment Date, interest ceases to accrue on Notes or portions of Notes
surrendered for purchase by the Company, unless the Company defaults in the
payment of the Change of Control Payment.
8. Denominations; Transfer; Exchange.
The Notes are in registered form without coupons in
denominations of $1,000 of principal amount at maturity and multiples of $1,000
in excess thereof. A Holder may register the transfer or exchange of Notes in
accordance with the Indenture. The Registrar may require a Holder, among other
things, to furnish appropriate endorsements and transfer documents and to pay
any taxes and fees required by law or permitted by the Indenture. The
Registrar need not register the transfer or exchange of any Notes selected for
redemption. Also, it need not register the transfer or exchange of any Notes
for a period of 15 days before a selection of Notes to be redeemed is made.
9. Persons Deemed Owners.
A registered Holder shall be treated as the owner of a Note
for all purposes.
10. Unclaimed Money.
If money for the payment of principal, premium, if any, or
interest remains unclaimed for two years, the Trustee and the Paying Agent will
pay the money back to the Company at its request. After that, Holders entitled
to the money must look to the Company for payment, unless an abandoned property
law designates another Person, and all liability of the Trustee and such Paying
Agent with respect to such money shall cease.
11. Discharge Prior to Redemption or Maturity.
If the Company deposits with the Trustee money or U.S.
Government Obligations sufficient to pay the then outstanding principal of,
premium, if any, and accrued interest on the Notes (a) to redemption or
maturity, the Company will be discharged from the Indenture and the Notes,
except in certain circumstances for certain sections thereof, and (b) to the
Stated Maturity, the Company will be discharged from certain covenants set
forth in the Indenture.
-4-
15
12. Amendment; Supplement; Waiver.
Subject to certain exceptions, the Indenture or the Notes may
be amended or supplemented with the consent of the Holders of at least a
majority in principal amount of the Notes then outstanding, and any existing
default or compliance with any provision may be waived with the consent of the
Holders of at least a majority in principal amount of the Notes then
outstanding. Without notice to or the consent of any Holder, the parties
thereto may amend or supplement the Indenture or the Notes to, among other
things, cure any ambiguity, defect or inconsistency and make any change that
does not materially and adversely affect the rights of any Holder.
13. Restrictive Covenants.
The Indenture imposes certain limitations on the ability of
the Company and its Restricted Subsidiaries, among other things, to Incur
Indebtedness, make Restricted Payments, use the proceeds from Asset Sales,
engage in transactions with Affiliates or, with respect to the Company, merge,
consolidate or transfer substantially all of its assets. Within 90 days after
the end of the last fiscal quarter of each year, the Company must report to the
Trustee on compliance with such limitations.
14. Successor Persons.
When a successor person or other entity assumes all the
obligations of its predecessor under the Notes and the Indenture, the
predecessor person will be released from those obligations.
15. Defaults and Remedies.
The following events constitute "Events of Default" in the
Indenture: (a) default in the payment of principal of (or premium, if any, on)
any Note when the same becomes due and payable, whether at maturity, upon
acceleration, redemption or otherwise; (b) default in the payment of interest
on any Note when the same becomes due and payable, and such default continues
for a period of 30 days; (c) default in the payment of principal (or premium,
if any) and interest on Notes required to be purchased pursuant to an Offer to
Purchase as described under the "Limitation on Asset Sales" covenant and under
"Repurchase of Notes upon a Change of Control" when due and payable; (d)
failure to perform or comply with the provisions described under the
"Consolidation, Merger and Sale of Assets" covenant; (e) default in the
performance of or breach of any other covenant or agreement of the Company in
the Indenture or under the Notes and such default or breach continues for a
period of 60 consecutive days after written notice by the Trustee or the
Holders of 25% or more in aggregate principal amount of the Notes; (f) there
occurs with respect to any issue or issues of Indebtedness of the Company or
any Restricted Subsidiary having an outstanding principal amount of $5 million
or more in the aggregate for all
-5-
16
such issues of all such Persons, whether such Indebtedness now exists or shall
hereafter be created, (I) an event of default that has caused the holder
thereof to declare such Indebtedness to be due and payable prior to its Stated
Maturity and/or (II) the failure to make a payment when due of principal,
premium, if any, or interest and such defaulted payment shall not have been
made, waived or extended by the earliest of (x) the expiration of any
applicable grace period and (y) the 30th day after such payment default; (g)
any final judgment or order (not covered by insurance) for the payment of money
in excess of $5 million in the aggregate for all such final judgments or orders
against all such Persons (treating any deductibles, self-insurance or retention
as not so covered) shall be rendered against the Company or any Restricted
Subsidiary and shall not be paid or discharged, and there shall be any period
of 60 consecutive days following entry of the final judgment or order that
causes the aggregate amount for all such final judgments or orders outstanding
and not paid or discharged against all such Persons to exceed $5 million during
which a stay of enforcement of such final judgment or order, by reason of a
pending appeal or otherwise, shall not be in effect; (h) a court having
jurisdiction in the premises enters a decree or order for (A) relief in respect
of the Company or any Restricted Subsidiary in an involuntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, (B) appointment of a receiver, liquidator, assignee, custodian,
trustee, sequestrator or similar official of the Company or any Restricted
Subsidiary or for all or substantially all of the property and assets of the
Company or any Restricted Subsidiary or (C) the winding up or liquidation of
the affairs of the Company or any Restricted Subsidiary and, in each case, such
decree or order shall remain unstayed and in effect for a period of 30
consecutive days; or (i) the Company or any Restricted Subsidiary (A) commences
a voluntary case under any applicable bankruptcy, insolvency or other similar
law now or hereafter in effect, or consents to the entry of an order for relief
in an involuntary case under any such law, (B) consents to the appointment of
or taking possession by a receiver, liquidator, assignee, custodian, trustee,
sequestrator or similar official of the Company or any Restricted Subsidiary or
for all or substantially all of the property and assets of the Company or any
Restricted Subsidiary or (C) effects any general assignment for the benefit of
creditors.
If a bankruptcy or insolvency default with respect to the
Company or any Restricted Subsidiary occurs and is continuing, Accreted Value
of, premium, if any, and accrued interest, if any, on the Notes automatically
become due and payable. Holders may not enforce the Indenture or the Notes
except as provided in the Indenture. The Trustee may require indemnity
satisfactory to it before it enforces the Indenture or the Notes. Subject to
certain limitations, Holders of at least a majority in principal amount of the
Notes then outstanding may direct the Trustee in its exercise of any trust or
power.
-6-
17
16. Trustee Dealings with Company.
The Trustee under the Indenture, in its individual or any
other capacity, may make loans to, accept deposits from and perform services
for the Company or its Affiliates and may otherwise deal with the Company or
its Affiliates as if it were not the Trustee.
17. No Recourse Against Others.
No incorporator or any past, present or future partner,
shareholder, other equity holder, officer, director, employee or controlling
person as such, of the Company or of any successor Person shall have any
liability for any obligations of the Company under the Notes or the Indenture
or for any claim based on, in respect of or by reason of, such obligations or
their creation. Each Holder by accepting a Note waives and releases all such
liability. The waiver and release are part of the consideration for the
issuance of the Notes.
18. Authentication.
This Note shall not be valid until the Trustee or
authenticating agent signs the certificate of authentication on the other side
of this Note.
19. Abbreviations.
Customary abbreviations may be used in the name of a Holder or
an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the
entireties), JT TEN (= joint tenants with right of survivorship and not as
tenants in common), CUST (= Custodian) and U/G/M/A (= Uniform Gifts to Minors
Act).
The Company will furnish to any Holder upon written request
and without charge a copy of the Indenture. Requests may be made to PCS
Development Corporation, 15 South Main Street, Suite 810, Greenville, South
Carolina 29601, Attention: Chief Financial Officer.
II. PROVISIONS RELATING TO THE WARRANTS
The Warrants are part of a duly authorized issue of Warrants
expiring at 5:00 p.m., New York City time, on the earlier to occur of (a) 180
days after an Exercise Event which causes such Warrants to become exercisable
or (b) __________, 2006 (the "Expiration Date"), each of which represents the
right to purchase from the Company at any time on or after the Exercisability
Date (as defined in the Warrant Agreement) one share of Class B Common Stock,
par value $1.00 per share, of the Company, subject to adjustment as set forth
in the Warrant Agreement. The Warrants are issued pursuant to a Warrant
Agreement dated as of ______, 1996 (the "Warrant Agreement"),
-7-
18
duly executed and delivered by the Company and UNITED STATES TRUST COMPANY OF
NEW YORK, a New York corporation, not in its individual capacity but solely as
Warrant Agent (the "Warrant Agent"), which Warrant Agreement is hereby
incorporated by reference in and made a part of this instrument and is hereby
referred to for a description of the rights, limitation of rights, obligations,
duties and immunities thereunder of the Warrant Agent, the Company and the
holders (the words "holders" or "holder" meaning the registered holders or
registered holder) of the Warrants.
"Exercise Event" means, with respect to each Warrant as to
which such event is applicable, the date of the earliest of: (1) the occurrence
of a Change of Control (as defined in the Warrant Agreement), (2) the
consummation of a Public Equity Offering after which there shall exist a Public
Market (each as defined in the Warrant Agreement), and (3) _______, 2006.
Warrants may be exercised at any time from 9:00 a.m. on or
after the date of occurrence of an Exercise Event, or if the Exercise Event
occurs prior to the Separability Date (as defined in the Warrant Agreement),
the Separability Date, until 5:00 p.m., New York City time on the date of
expiration as described above. If all of the items required for exercise of
Warrants evidenced by Warrant Certificates are received by the Warrant Agent at
or prior to 2:00 p.m., New York City time, on a Business Day, the exercise of
the Warrant to which such items relate will be effective on such Business Day.
If any such items are received after 2:00 p.m., New York City time, on a
Business Day, the exercise of the Warrants to which such item relates will be
deemed to be effective on the next succeeding Business Day. Notwithstanding
the foregoing, in the case of an exercise of Warrants on ______, 2006, if all
of the items required for exercise of this Warrant are received by the Warrant
Agent at or prior to 5:00 p.m., New York City time, on such Expiration Date,
the exercise of the Warrants to which such items relate will be effective on
the Expiration Date.
As soon as practicable after the exercise of any Warrant or
Warrants, the Company shall issue or cause to be issued to or upon the written
order of the registered holder of a Warrant Certificate, a certificate or
certificates evidencing the Warrant Shares to which such holder is entitled, in
fully registered form. Such certificate or certificates evidencing the Warrant
Shares shall be deemed to have been issued and any persons who are designated
to be named therein shall be deemed to have become the holder of record of such
Warrant Shares as of the close of business on the date upon which the exercise
of this Warrant was deemed to be effective as provided in the preceding
paragraph.
The Warrant Agreement provides that the Company will not be
required to issue fractional shares of Class B Common Stock upon exercise of
the Warrants or distribute certificates
-8-
19
that evidence fractional shares of Class B Common Stock. In lieu of fractional
shares of Class B Common Stock, there shall be paid to the registered holder of
this Warrant Certificate at the time such Warrant Certificate is exercised an
amount in cash equal to the same fraction of the Current Market Value (as
defined in the Warrant Agreement) per share on the Business Day preceding the
date this Warrant Certificate is surrendered for exercise.
The Company is party to a Registration Rights Agreement
pursuant to which it has certain registration obligations with respect to the
Class B Common Stock issuable upon exercise of the Warrants.
Warrant Certificates, when surrendered at any office or agency
maintained by the Company for that purpose by the registered holder thereof in
person or by legal representative or attorney duly authorized in writing, may
be exchanged for a new Warrant Certificate or new Warrant Certificates
evidencing in the aggregate a like number of Warrants, in the manner and
subject to the limitations provided in the Warrant Agreement, without charge
except for any tax or other governmental charge imposed in connection therewith.
Upon due presentment for registration of transfer of this
Warrant Certificate at any office or agency maintained by the Company for that
purpose, a new Warrant Certificate evidencing in the aggregate a like number of
Warrants shall be issued to the transferee in exchange for this Warrant
Certificate, subject to the limitations provided in the Warrant Agreement,
without charge except for any tax or other governmental charge imposed in
connection therewith.
The Company and the Warrant Agent may deem and treat the
registered holder hereof as the absolute owner of this Warrant Certificate
(notwithstanding any notation of ownership or other writing hereon made by
anyone) for the purpose of any exercise hereof and for all other purposes, and
neither the Company nor the Warrant Agent shall be affected by any notice to
the contrary.
Upon the occurrence of an Exercise Event, the Company shall
have the right to make an offer to purchase all outstanding Warrants and
Warrant Shares in cash, within 120 days after such Exercise Event, at a price
equal to the Current Market Value thereof. The offers to purchase set forth in
this and the preceding paragraph will be made in the manner and upon the terms
set forth in the Warrant Agreement.
The Warrant Agreement provides that (i) subject to certain
exceptions upon the issuance of any dividend or distribution pro rata to all
holders of Common Stock, the holders will be entitled to such dividend or
distribution on the terms set forth in the Warrant Agreement and (ii) upon the
occurrence of certain events the number of Warrant Shares of Class B Common
-9-
20
Stock issuable upon the exercise of each Warrant shall be adjusted.
The term "Business Day" shall mean any day on which (i) banks
in New York City, (ii) the principal national securities exchange or market, if
any, on which the Common Stock is listed or admitted to trading and (iii) the
principal national securities exchange or market, if any, on which the Warrants
are listed or admitted to trading are open for business.
-10-
21
ASSIGNMENT FORM
I or we assign and transfer this Unit to
________________________________________________________________________________
________________________________________________________________________________
(Print or type name, address and zip code of assignee)
________________________________________________________________________________
(Insert Social Security or other identifying number of assignee)
and irrevocably appoint_________________________________________________________
agent to transfer this Unit on the books of the Company. The agent may
substitute another to act for him.
Dated:__________________ Signed:_______________________________________________
(Sign exactly as name appears on
the other side of this Unit)
Signature Guarantee:____________________________________________________________
Participant in a recognized Signature Guarantee
Medallion Program (or other signature guarantor
program reasonably acceptable to the Trustee)
22
SCHEDULE OF EXCHANGES OF CERTIFICATED UNITS(1)
The following exchanges of a part of this Global Unit for certificated Units
have been made:
Number of Units of
Decrease in Increase in this Global Signature of
Number of Number of Unit following authorized
Units of this Units of this such decrease officer of
Date of Exchange Global Unit Global Unit (or increase) Unit Agent
- ----------------------------------------------------------------------------------------
- ----------------------------------
(1) This is to be included only if the Unit is in global form.
23
EXHIBIT B
FORM OF LEGEND FOR GLOBAL UNIT
Any Global Unit authenticated and delivered hereunder shall
bear a legend (which would be in addition to any other legends required in the
case of a Restricted Security) in substantially the following form:
THIS SECURITY IS A GLOBAL UNIT WITHIN THE MEANING OF THE UNIT
AGREEMENT HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A
DEPOSITORY OR A NOMINEE OF A DEPOSITORY OR A SUCCESSOR DEPOSITORY.
THIS SECURITY IS NOT EXCHANGEABLE FOR SECURITIES REGISTERED IN THE
NAME OF A PERSON OTHER THAN THE DEPOSITORY OR ITS NOMINEE EXCEPT IN
THE LIMITED CIRCUMSTANCES DESCRIBED IN THE UNIT AGREEMENT, AND NO
TRANSFER OF THIS SECURITY (OTHER THAN A TRANSFER OF THIS SECURITY AS A
WHOLE BY THE DEPOSITORY TO A NOMINEE OF THE DEPOSITORY OR BY A NOMINEE
OF THE DEPOSITORY TO THE DEPOSITORY OR ANOTHER NOMINEE OF THE
DEPOSITORY) MAY BE REGISTERED EXCEPT IN THE LIMITED CIRCUMSTANCES
DESCRIBED IN THE UNIT AGREEMENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION
("DTC"), TO ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE &
CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.