EXHIBIT 4.4
Execution Copy
================================================================================
TeleCorp PCS, Inc.
Senior Subordinated Discount Notes due 2011
-------------------------------
INDENTURE
Dated as of April 6, 2001
-------------------------------
Firstar Bank, N.A.
Trustee
================================================================================
TABLE OF CONTENTS
Page
----
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01. Definitions...................................................................................1
Section 1.02. Other Definitions............................................................................26
Section 1.03. Incorporation by Reference of Trust Indenture Act............................................26
Section 1.04. Rules of Construction........................................................................27
ARTICLE 2
THE SECURITIES
Section 2.01. Initial Securities Issuable in Tranches......................................................27
Section 2.02. Form and Dating..............................................................................28
Section 2.03. Execution and Authentication.................................................................28
Section 2.04. Registrar and Paying Agent...................................................................29
Section 2.05. Paying Agent To Hold Money in Trust..........................................................29
Section 2.06. Securityholder Lists.........................................................................30
Section 2.07. Transfer and Exchange........................................................................30
Section 2.08. Replacement Securities.......................................................................31
Section 2.09. Outstanding Securities.......................................................................31
Section 2.10. Temporary Securities.........................................................................31
Section 2.11. Cancellation.................................................................................32
Section 2.12. Defaulted Interest...........................................................................32
Section 2.13. CUSIP Numbers................................................................................32
ARTICLE 3
REDEMPTION
Section 3.01. Notices to Trustee...........................................................................32
Section 3.02. Selection of Securities To Be Redeemed.......................................................33
Section 3.03. Notice of Redemption.........................................................................33
Section 3.04. Effect of Notice of Redemption...............................................................34
Section 3.05. Deposit of Redemption Price..................................................................34
Section 3.06. Securities Redeemed in Part..................................................................34
-i-
ARTICLE 4
COVENANTS
Section 4.01. Payment of Securities........................................................................34
Section 4.02. Provision of Financial Information...........................................................35
Section 4.03. Limitation on Incurrence of Indebtedness.....................................................35
Section 4.04. Limitation on Restricted Payments............................................................39
Section 4.05. Limitation on Restrictions Affecting Restricted Subsidiaries.................................43
Section 4.06. Limitation on Certain Asset Dispositions.....................................................44
Section 4.07. Limitation on Transactions with Affiliates...................................................46
Section 4.08. Change of Control............................................................................48
Section 4.09. Compliance Certificate.......................................................................49
Section 4.10. Further Instruments and Acts.................................................................49
Section 4.11. Future Subsidiary Guarantors.................................................................49
Section 4.12. [Intentionally Omitted]......................................................................49
Section 4.13. Limitation on Designations of Unrestricted Subsidiaries......................................49
Section 4.14. Limitation on Layered Indebtedness...........................................................50
Section 4.15. Additional Activities........................................................................51
ARTICLE 5
SUCCESSOR COMPANY
Section 5.01. Merger, Consolidation and Certain Sales of Assets............................................51
ARTICLE 6
DEFAULTS AND REMEDIES
Section 6.01. Events of Default............................................................................52
Section 6.02. Acceleration.................................................................................54
Section 6.03. Other Remedies...............................................................................54
Section 6.04. Waiver of Past Defaults......................................................................54
Section 6.05. Control by Majority..........................................................................55
Section 6.06. Limitation on Suits..........................................................................55
Section 6.07. Rights of Holders To Receive Payment.........................................................55
Section 6.08. Collection Suit by Trustee...................................................................56
Section 6.09. Trustee May File Proofs of Claim.............................................................56
Section 6.10. Priorities...................................................................................56
Section 6.11. Undertaking for Costs........................................................................56
Section 6.12. Waiver of Stay or Extension Laws.............................................................57
-ii-
ARTICLE 7
TRUSTEE
Section 7.01. Duties of Trustee............................................................................57
Section 7.02. Rights of Trustee............................................................................58
Section 7.03. Individual Rights of Trustee.................................................................59
Section 7.04. Trustee's Disclaimer.........................................................................59
Section 7.05. Notice of Defaults...........................................................................59
Section 7.06. Reports by Trustee to Holders................................................................59
Section 7.07. Compensation and Indemnity...................................................................59
Section 7.08. Replacement of Trustee.......................................................................60
Section 7.09. Successor Trustee by Merger..................................................................61
Section 7.10. Eligibility; Disqualification................................................................61
Section 7.11. Preferential Collection of Claims Against Company............................................61
Section 7.12. Trustee Acting as Paying Agent or Registrar..................................................62
ARTICLE 8
DISCHARGE OF INDENTURE; DEFEASANCE
Section 8.01. Discharge of Liability on Securities; Defeasance.............................................62
Section 8.02. Conditions to Defeasance.....................................................................63
Section 8.03. Application of Trust Money...................................................................64
Section 8.04. Repayment to Company.........................................................................64
Section 8.05. Indemnity for Government Obligations.........................................................64
Section 8.06. Reinstatement................................................................................64
ARTICLE 9
AMENDMENTS
Section 9.01. Without Consent of Holders...................................................................65
Section 9.02. With Consent of Holders......................................................................66
Section 9.03. Compliance with Trust Indenture Act..........................................................66
Section 9.04. Revocation and Effect of Consents and Waivers................................................66
Section 9.05. Notation on or Exchange of Securities........................................................67
Section 9.06. Trustee To Sign Amendments...................................................................67
Section 9.07. Payment for Consent..........................................................................67
ARTICLE 10
SUBORDINATION
Section 10.01. Agreement To Subordinate.....................................................................68
Section 10.02. Liquidation, Dissolution, Bankruptcy.........................................................68
-iii-
Section 10.03. Default on Senior Indebtedness...............................................................68
Section 10.04. Acceleration of Payment of Securities........................................................69
Section 10.05. When Distribution Must Be Paid Over..........................................................69
Section 10.06. Subrogation..................................................................................69
Section 10.07. Relative Rights..............................................................................70
Section 10.08. Subordination May Not Be Impaired by Company.................................................70
Section 10.09. Rights of Trustee and Paying Agent...........................................................70
Section 10.10. Distribution or Notice to Representative.....................................................70
Section 10.11. Article 10 Not To Prevent Events of Default or Limit Right To Accelerate.....................70
Section 10.12. Trust Moneys Not Subordinated................................................................70
Section 10.13. Trustee Entitled To Rely.....................................................................71
Section 10.14. Trustee To Effectuate Subordination..........................................................71
Section 10.15. Trustee Not Fiduciary for Holders of Senior Indebtedness.....................................71
Section 10.16. Reliance by Holders of Senior Indebtedness on Subordination Provisions.......................71
Section 10.17. Trustee's Compensation Not Prejudiced........................................................72
Section 10.18. Defeasance...................................................................................72
ARTICLE 11
SUBSIDIARY GUARANTEES
Section 11.01. Subsidiary Guarantees........................................................................72
Section 11.02. Limitation on Liability......................................................................74
Section 11.03. Successors and Assigns.......................................................................75
Section 11.04. No Waiver....................................................................................75
Section 11.05. Modification.................................................................................75
Section 11.06. Execution of Supplemental Indenture for Future Subsidiary Guarantors.........................75
ARTICLE 12
SUBORDINATION OF THE SUBSIDIARY GUARANTEES
Section 12.01. Agreement To Subordinate.....................................................................75
Section 12.02. Liquidation, Dissolution, Bankruptcy.........................................................76
Section 12.03. Default on Designated Senior Indebtedness of a Subsidiary Guarantor..........................76
Section 12.04. Demand for Payment...........................................................................77
Section 12.05. When Distribution Must Be Paid Over..........................................................77
Section 12.06. Subrogation..................................................................................77
Section 12.07. Relative Rights..............................................................................77
Section 12.08. Subordination May Not Be Impaired by a Subsidiary Guarantor..................................78
Section 12.09. Rights of Trustee and Paying Agent...........................................................78
Section 12.10. Distribution or Notice to Representative.....................................................78
Section 12.11. Article 12 Not To Prevent Events of Default or Limit Right To Accelerate.....................78
Section 12.12. Trustee Entitled To Rely.....................................................................78
-iv-
Section 12.13. Trustee To Effectuate Subordination..........................................................79
Section 12.14. Trustee Not Fiduciary for Holders of Senior Indebtedness of a Subsidiary Guarantor...........79
Section 12.15. Reliance by Holders of Senior Indebtedness of a Subsidiary Guarantor on Subordination
Provisions................................................................................79
Section 12.16. Defeasance...................................................................................79
ARTICLE 13
SATISFACTION AND DISCHARGE
Section 13.01. Satisfaction and Discharge of Indenture......................................................80
Section 13.02. Application of Trust Money...................................................................80
ARTICLE 14
MISCELLANEOUS
Section 14.01. Trust Indenture Act Controls.................................................................81
Section 14.02. Notices......................................................................................81
Section 14.03. Communication by Holders with Other Holders..................................................81
Section 14.04. Certificate and Opinion as to Conditions Precedent...........................................82
Section 14.05. Statements Required in Certificate or Opinion................................................82
Section 14.06. When Securities Disregarded..................................................................82
Section 14.07. Rules by Trustee, Paying Agent and Registrar.................................................82
Section 14.08. Legal Holidays...............................................................................83
Section 14.10. No Recourse Against Others...................................................................83
Section 14.11. Successors...................................................................................83
Section 14.12. Multiple Originals...........................................................................83
Section 14.13. Table of Contents; Headings..................................................................83
Section 14.14. Acts of Securityholders......................................................................83
Appendix A - Provisions Relating to Initial Securities, Private Exchange Securities and Exchange Securities
Exhibit A - Form of Initial Security
Exhibit B - Form of Exchange Security
Exhibit C - Form of Supplemental Indenture
Exhibit D - Form of Transferee Letter of Representation
-v-
INDENTURE dated as of April 6, 2001 among TeleCorp PCS, Inc., a
Delaware corporation (the "Company") and Firstar Bank, N.A., a national
association under the laws of the United States, as trustee (the "Trustee").
Each party agrees as follows for the benefit of the other parties and
for the equal and ratable benefit of the Holders of the Company's Senior
Subordinated Discount Notes due 2011 issued under this indenture.
ARTICLE 1
Definitions and Incorporation by Reference
Section 1.01. Definitions.
------------
"Accreted Value" means with respect to each Security, (a) as of any
date of determination prior to April 15, 2006, the sum of:
(1) the initial offering price of each Security to the Initial
Purchaser; and
(2) the portion of the excess of the principal amount of each Security
over such initial offering price, which shall have been amortized by the
Company in accordance with GAAP through such date, such amount to be so
amortized on a daily basis and compounded semi-annually on each interest
payment date at the rate of interest to be paid commencing April 15, 2006
as stated in such Security per annum from the date of issuance of such
Security through the date of determination computed on the basis of a 360-
day year of twelve 30-day months, and
(b) as at any time on or after April 15, 2006, the principal amount of
each Security on such date.
"Acquired Indebtedness" means, with respect to any Person,
Indebtedness of such Person:
(1) existing at the time such Person becomes a Restricted Subsidiary;
or
(2) assumed in connection with the acquisition of assets from another
Person, including Indebtedness Incurred in connection with, or in
contemplation of, such Person becoming a Restricted Subsidiary or such
acquisition, as the case may be.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by, or under direct or indirect common
control with, any specified Person. For purposes of this definition, "control"
when used with respect to any Person means the power to direct the management
and policies of such Person, directly or indirectly, whether through the
ownership of voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the foregoing.
"Airadigm" means Airadigm Communications, Inc.
"Annualized Pro Forma Consolidated Operating Cash Flow" of a Person
means Consolidated Cash Flow for the latest two full fiscal quarters for which
consolidated financial statements of such Person are available multiplied by
two. For purposes of calculating "Consolidated Cash Flow" for any period for
purposes of this definition only:
(1) any Subsidiary of such Person that is a Restricted Subsidiary on
the date of the transaction giving rise to the need to calculate
"Annualized Pro Forma Consolidated Operating Cash Flow" (the "Transaction
Date") shall be deemed to have been a Restricted Subsidiary at all times
during such period; and
(2) any Subsidiary of such Person that is not a Restricted Subsidiary
on the Transaction Date shall be deemed not to have been a Restricted
Subsidiary at any time during such period.
In addition to and without limitation of the foregoing, for purposes
of this definition only, "Consolidated Cash Flow" shall be calculated after
giving effect on a pro forma basis for the applicable period to, without
duplication, any Asset Dispositions or Asset Acquisitions (including,
without limitation, any Asset Acquisition giving rise to the need to make
such calculation as a result of such Person or one of its Restricted
Subsidiaries (including any Person who becomes a Restricted Subsidiary as a
result of an Asset Acquisition) Incurring, assuming or otherwise being
liable for Acquired Indebtedness) occurring during the period commencing on
the first day of such two-fiscal-quarter period to and including the
Transaction Date (the "Reference Period"), as if such Asset Disposition or
Asset Acquisition occurred on the first day of the Reference Period.
"Asset Acquisition" means:
(1) any purchase or other acquisition (by means of transfer of cash,
Indebtedness or other property to others or payment for property or
services for the account or use of others or otherwise) of Capital Stock of
any Person by any other Person or any Restricted Subsidiary of such other
Person, in either case, pursuant to which such Person shall become a
Restricted Subsidiary of such other Person or shall be merged with or into
such other Person or any Restricted Subsidiary of such other Person; or
(2) any acquisition by any Person or any Restricted Subsidiary of any
Person of the property or assets of any other Person which constitute all
or substantially all of an operating unit or line of business of such other
Person.
"Asset Disposition" means any sale, transfer or other disposition
(including, without limitation, by merger, consolidation or Sale/Leaseback
Transaction) of:
(1) shares of Capital Stock of a Subsidiary of the Company (other than
directors' qualifying shares);
(2) any License for the provision of wireless telecommunications
services held by the Company or any Restricted Subsidiary (whether by sale
of Capital Stock or otherwise); or
-2-
(3) any other property or assets of the Company or any Subsidiary of
the Company other than in the ordinary course of business;
provided, however, that an Asset Disposition shall not include:
-------- -------
(A) any sale, transfer or other disposition of shares of Capital
Stock, property or assets by a Restricted Subsidiary to the Company or
to any other Restricted Subsidiary or by the Company to any Restricted
Subsidiary;
(B) any sale, transfer or other disposition of defaulted
receivables for collection;
(C) the sale, lease, conveyance or disposition or other transfer
of all or substantially all of the assets of the Company as permitted
under Article 5;
(D) any disposition that constitutes a Change of Control; or
(E) any sale, transfer or other disposition of shares of Capital
Stock of any Marketing Affiliate; provided that such Marketing
--------
Affiliate is not engaged in any activity other than the registration,
holding, maintenance or protection of trademarks and the licensing
thereof; or
(F) any sale, transfer or other disposition that does not
(together with all related sales, transfers or dispositions) involve
aggregate consideration in excess of $15,000,000.
"AT&T Wireless" means AT&T Wireless PCS, LLC, a Delaware corporation.
"Average Life" means, as of the date of determination, with respect to
any Indebtedness for borrowed money or Preferred Stock, the quotient obtained by
dividing:
(1) the sum of the products of the number of years from the date of
determination to the dates of each successive scheduled principal or
liquidation value payments of such Indebtedness or Preferred Stock,
respectively, and the amount of such principal or liquidation value
payments by
(2) the sum of all such principal or liquidation value payments.
"Bank Indebtedness" means any and all amounts payable under or in
respect of a Credit Agreement and any Refinancing Indebtedness with respect
thereto, as amended from time to time, including principal, premium (if any),
interest (including interest accruing on or after the filing of any petition in
bankruptcy or for reorganization relating to the Company whether or not a claim
for post-filing interest is allowed in such proceedings), fees, charges,
expenses, reimbursement obligations, guarantees and all other amounts payable
thereunder or in respect thereof.
"Bankruptcy Law" means Title 11, United States Code, or any similar
------------------
federal or state law for the relief of debtors.
-3-
"board of directors" of any Person means the board of directors,
management committee or other governing body of such Person.
"BTA" means a Basic Trading Area, as defined in 47 C.F.R. (S)24.202.
"Business Day" means any date which is not a Legal Holiday.
"C-Block License" means any License in the C block as set forth in
parts 1 and 24 of Title 47 of the Code of Federal Regulations.
"Capital Lease Obligations" of any Person means the obligations to pay
rent or other amounts under a lease of (or other Indebtedness arrangements
conveying the right to use) real or personal property of such Person which are
required to be classified and accounted for as a capital lease or liability on
the face of a balance sheet of such Person in accordance with GAAP. The amount
of such obligations shall be the capitalized amount thereof in accordance with
GAAP, and the Stated Maturity thereof shall be the date of the last payment of
rent or any other amount due under such lease prior to the first date upon which
such lease may be terminated by the lessee without payment of a penalty.
"Capital Stock" of any Person means any and all shares, interests,
rights to purchase, warrants, options, participations or other equivalents of or
interests in (however designated) of corporate stock or other equity
participations, including partnership interests, whether general or limited, of
such Person.
"Cash Equity Investors" means CB Capital Investors, L.P., Equity-
Linked Investors-II, Private Equity Investors III, L.P., Hoak Communications
Partners, L.P., HCP Capital Fund, L.P., Whitney Equity Partners, L.P., J. H.
Whitney III, L.P., Whitney Strategic Partners III, L.P., Media/Communications
Partners III Limited Partnership, Media/Communications Investors Limited
Partnership, One Liberty Fund III, L.P., One Liberty Fund IV, L.P., Toronto
Dominion Investments, Inc., Northwood Ventures LLC, Northwood Capital Partners
LLC, Gerald Vento, Thomas Sullivan, Gilde International B.V., CIHC, Incorporated
and Dresdner Kleinwort Benson Private Equity LLC, Trillium PCS, LLC, Triune PCS,
LLC, MF Financial, General Electric Capital Corporation, FCA Ventures Pts II,
Southern Farm Bureau, M3 LLC, McCarty Communications, LLC, and Mercury PCS
Investors.
"Cash Equivalents" means:
(1) direct obligations of, or obligations the principal of and
interest on which are unconditionally guaranteed by, the United States of
America (or by any agency thereof to the extent such obligations are backed
by the full faith and credit of the United States of America), in each case
maturing within one year from the date of acquisition thereof;
(2) investments in commercial paper maturing within 365 days from the
date of acquisition thereof and having, at such date of acquisition, the
highest credit rating obtainable from Standard & Poor's Corporation or from
Moody's Investors Service;
-4-
(3) investments in certificates of deposit, banker's acceptance and
time deposits maturing within 365 days from the date of acquisition thereof
issued or guaranteed by or placed with, and money market deposit accounts
issued or offered by, any domestic office of any commercial bank organized
under the laws of the United States of America or any State thereof which
has a combined capital and surplus and undivided profits of not less than
$500,000,000;
(4) fully collateralized repurchase agreements with a term of not more
than 30 days for securities described in clause (1) above and entered into
with a financial institution satisfying the criteria described in clause
(3) above; and
(5) money market funds substantially all of whose assets comprise
securities of the type described in clauses (1) through (3) above.
"Change of Control" means the assurance of any of the following
events:
(1) any "person" or "group" (as such terms are used in Sections 13(d)
and 14(d) of the Exchange Act), other than a Permitted Holder or Permitted
Holders or a person or group controlled by a Permitted Holder or Permitted
Holders, becomes the "beneficial owner" (as defined in Rules 13d-3 and 13d-
5 under the Exchange Act, except that a person shall be deemed to have
"beneficial ownership" of all such securities that such person has the
right to acquire within one year, upon the happening of an event or
otherwise) directly or indirectly, of securities of the Company
representing 50% or more of the combined voting power of the Company's then
outstanding Voting Stock;
(2) the following individuals cease for any reason to constitute more
than a majority of the number of directors then serving on the board of
directors of the Company: individuals who, on the date of this Indenture,
constitute the board of directors of the Company and any new director
(other than a director whose initial assumption of office is in connection
with an actual or threatened election contest, including, but not limited
to, a consent solicitation relating to the election of directors of the
Company) whose appointment or election by the board of directors of the
Company or nomination for election by the Company's stockholders was
approved by the vote of at least two-thirds of the directors then still in
office or whose appointment, election or nomination was previously so
approved or recommended or made in accordance with the terms of the
Stockholders' Agreement; or
(3) the stockholders of the Company shall approve any Plan of
Liquidation (whether or not otherwise in compliance with the provisions of
this Indenture).
"Code" means the Internal Revenue Code of 1986, as amended.
"Common Stock" of any Person means Capital Stock of such Person that
does not rank prior, as to the payment of dividends or as to the distribution of
assets upon any voluntary or involuntary liquidation, dissolution or winding up
of such Person, to shares of Capital Stock of any other class of such Person.
"Commission" means the Securities and Exchange Commission.
-5-
"Communications Act" means the Communications Act of 1934, and any
similar or successor Federal statute, and the rules and regulations and
published policies of the FCC thereunder, all as amended and as the same may be
in effect from time to time.
"Company" means the party named as such in this Indenture until a
successor replaces it and, thereafter, means the successor and, for purposes of
any provision contained herein and required by the TIA, each other obligor on
the indenture securities.
"Company Credit Agreement" means any credit agreement among the
Company, one or more agents (if applicable) and one or more financial
institutions, as lenders, as amended, waived or otherwise modified from time to
time (except to the extent that any such agreement, amendment, waiver or other
modification thereto would be prohibited by the terms of this Indenture, unless
otherwise agreed to by the Required Holders).
"Consolidated Cash Flow" of any Person means, for any period, the
Consolidated Net Income of such Person for such period:
(1) increased (to the extent Consolidated Net Income for such period
has been reduced thereby) by the sum of (without duplication):
(A) Consolidated Interest Expense of such Person for such period;
plus
(B) Consolidated Income Tax Expense of such Person for such
period; plus
(C) the consolidated depreciation and amortization expense of
such Person and its Restricted Subsidiaries for such period; plus
(D) any other non-cash charges of such Person and its Restricted
Subsidiaries for such period except for any non-cash charges that
represent accruals of, or reserves for, cash disbursements to be made
in any future accounting period; and
(2) decreased (to the extent Consolidated Net Income for such period
has been increased thereby) by any non-cash gains from Asset Dispositions.
"Consolidated Income Tax Expense" of any Person means, for any period,
the consolidated provision for income taxes of such Person and its Restricted
Subsidiaries for such period calculated on a consolidated basis in accordance
with GAAP.
"Consolidated Interest Expense" for any Person means, for any period,
without duplication:
(1) the consolidated interest expense included in a consolidated
income statement (without deduction of interest or finance charge income)
of such Person and its Restricted Subsidiaries for such period calculated
on a consolidated basis in accordance with GAAP (including, without
limitation, (a) any amortization of debt discount, (b) the net costs under
Hedging Agreements, (c) all capitalized interest, (d) the interest portion
of
-6-
any deferred payment obligation and (e) all amortization of any premiums,
fees and expenses payable in connection with the Incurrence of any
Indebtedness); plus
(2) the interest component of Capital Lease Obligations paid, accrued
and/or scheduled to be paid or accrued, by such Person and its Restricted
Subsidiaries during such period as determined on a consolidated basis in
accordance with GAAP.
"Consolidated Net Income" of any Person means for any period the
consolidated net income (or loss) of such Person and its Restricted Subsidiaries
for such period determined on a consolidated basis in accordance with GAAP;
provided, however, that there shall be excluded therefrom:
- -------- -------
(1) the net income (or loss) of any Person acquired by such Person or
a Restricted Subsidiary of such Person in a pooling-of-interests
transaction for any period prior to the date of such transaction;
(2) the net income (but not loss) of any Restricted Subsidiary of such
Person which is subject to restrictions which prevent or limit the payment
of dividends or the making of distributions to such Person to the extent of
such restrictions (regardless of any waiver thereof);
(3) the net income of any Person that is not a Restricted Subsidiary
of such Person, except to the extent of the amount of dividends or other
distributions representing such Person's proportionate share of such other
Person's net income for such period actually paid in cash to such Person by
such other Person during such period;
(4) gains or losses (other than for purposes of calculating
Consolidated Net Income under clause (C) of paragraph (a) of Section 4.04)
on Asset Dispositions by such Person or its Restricted Subsidiaries;
(5) all extraordinary gains (but not, other than for purposes of
calculating Consolidated Net Income under clause (C) of paragraph (a) under
Section 4.04, losses) determined in accordance with GAAP; and
(6) in the case of a successor to such Person by consolidation or
merger or as a transferee of such Person's assets, any earnings (or losses)
of the successor corporation prior to such consolidation, merger or
transfer of assets.
"Credit Agreements" means the collective reference to the Company
Credit Agreement, the Wireless Credit Agreement and the Tritel Credit Agreement.
"Custodian" means any receiver, trustee, assignee, liquidator,
custodian or similar official under any Bankruptcy Law.
"Default" means any event that is, or after notice or lapse of time or
both would become, an Event of Default.
-7-
"Designated Covenants" means the covenants contained in Sections 4.03,
4.04(a)(2), 4.04(a)(4), 4.05 and 4.07 (but only as to funds constituting
proceeds from the Securities as determined in the reasonable judgement of the
board of directors of the Company), in each case, including any defined terms
contained therein.
"Designated Senior Indebtedness" of the Company means:
(1) so long as outstanding, Bank Indebtedness; and
(2) so long as outstanding, any other Senior Indebtedness which has at
the time of initial issuance an aggregate outstanding principal amount in
excess of $25,000,000 and which has been so designated as Designated Senior
Indebtedness by the board of directors of the Company at the time of its
initial issuance in a resolution delivered to the Trustee. "Designated
Senior Indebtedness" of a Subsidiary Guarantor has a correlative meaning.
"Designation" has the meaning set forth in Section 4.13.
"Disqualified Stock" of any Person means any Capital Stock of such
Person 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 option of the holder thereof,
in whole or in part, on or prior to the first anniversary of the Stated Maturity
of the Securities; provided, however, that any Capital Stock that would not
-------- -------
constitute Disqualified Stock but for provisions thereof giving holders thereof
the right to require such Person to repurchase or redeem such Capital Stock upon
the occurrence of an "asset sale" or "change of control" occurring prior to the
first anniversary of the Stated Maturity of the Securities shall not constitute
Disqualified Stock if the "asset sale" or "change of control" provisions
applicable to such Capital Stock are no more favorable to the holders of such
Capital Stock than the provisions of Section 4.08.
"Equipment Subsidiary" means any Wholly Owned Subsidiary of the
Company designated as an Equipment Subsidiary under the Company Credit
Agreement.
"Equity Offering" means any public or private sale of Qualified Stock
made on a primary basis by the Company after the date of this Indenture,
including through the issuance or sale of Qualified Stock to one or more
Strategic Equity Investors.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated by the Commission thereunder.
"Exchange and Registration Rights Agreement" means (i) the Exchange
and Registration Rights Agreement, to be dated the date of this Indenture,
between the Company and the Initial Purchaser and (ii) any other substantially
similar agreement among the Company and the purchasers named therein providing
exchange and registration rights to the holders of any Initial Securities issued
under this Indenture.
-8-
"Exchange Securities" means, collectively, debt securities of the
Company that are identical in all material respects to a particular Tranche of
Initial Securities, except for transfer restrictions relating to the relevant
Initial Securities, issued in a like aggregate principal amount at maturity of
the relevant Initial Securities pursuant to an Exchange and Registration Rights
Agreement.
"Exchange Offer" means a registered exchange offer for the Securities
undertaken by the Company pursuant to the Exchange and Registration Rights
Agreement.
"Expiration Date" means the expiration date with respect to any Offer
to Purchase.
"F-Block License" means any License in the F block as set forth in
parts 1 and 24 of Title 47 of the Code of Federal Regulations.
"Fair Market Value" means, with respect to any asset or property, the
price that could be negotiated in an arm's-length free market transaction, for
cash, between a willing seller and a willing buyer, neither of which is under
pressure or compulsion to complete the transaction. Unless otherwise specified
in this Indenture, Fair Market Value shall be determined by the board of
directors of the Company acting in good faith.
"FCC" means the Federal Communications Commission, or any other
similar or successor agency of the Federal government administering the
Communications Act.
"FCC Debt" means Indebtedness owed to the United States Treasury
Department or the FCC that is incurred in connection with the acquisition of a
License.
"Foreign Subsidiaries" of any Person means any Subsidiary that is not
organized under the laws of the United States of America or any State thereof or
the District of Columbia.
"GAAP" means generally accepted accounting principles, consistently
applied, as in effect from time to time in the United States of America, as 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 Accounting Standards Board or in such other
statements by such other entity as is approved by a significant segment of the
accounting profession in the United States.
"Hedging Agreement" means any interest rate, currency or commodity
swap agreement, interest rate, currency or commodity future agreement, interest
rate cap or collar agreement, interest rate, currency or commodity hedge
agreement and any put, call or other agreement designed to protect against
fluctuations in interest rates, currency exchange rates or commodity prices.
"Holder" or "Securityholder" means the Person in whose name a Security
is registered on the registrar's books.
"Incur" means, with respect to any Indebtedness or other obligation of
any Person, to create, issue, incur (including by conversion, exchange or
otherwise), assume,
-9-
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" and "Incurring" shall have meanings correlative to the
foregoing). Indebtedness of any Person or any of its Restricted Subsidiaries
existing at the time such Person becomes a Restricted Subsidiary (or is merged
into, or consolidates with, the Company or any Restricted Subsidiary), whether
or not such Indebtedness was Incurred in connection with, or in contemplation
of, such Person becoming a Restricted Subsidiary (or being merged into, or
consolidated with, the Company or any Restricted Subsidiary), shall be deemed
Incurred at the time any such Person becomes a Restricted Subsidiary or merges
into, or consolidates with, the Company or any Restricted Subsidiary.
"Indebtedness" means (without duplication), with respect to any
Person, whether recourse is to all or a portion of the assets of such Person and
whether or not contingent:
(1) every obligation of such Person for money borrowed;
(2) every obligation of such Person evidenced by bonds, debentures,
notes or other similar instruments, including obligations Incurred in
connection with the acquisition of property, assets or businesses;
(3) every reimbursement obligation of such Person with respect to
letters of credit, bankers' acceptances or similar facilities issued for
the account of such Person;
(4) every obligation of such Person issued or assumed as the deferred
purchase price of property or services (but excluding trade accounts
payable or accrued liabilities arising in the ordinary course of business
which are not overdue or which are being contested in good faith);
(5) every Capital Lease Obligation of such Person;
(6) every net obligation under Hedging Agreements or similar
agreements of such Person; and
(7) every obligation of the type referred to in clauses (1) through
(6) of another Person and all dividends of another Person the payment of
which, in either case, such Person has guaranteed or is responsible or
liable for, directly or indirectly, as obligor, guarantor or otherwise.
Indebtedness shall:
(1) include the liquidation preference and any mandatory redemption
payment obligations in respect of any Disqualified Stock of the Company and
any Restricted Subsidiary and any Preferred Stock of a Subsidiary of the
Company;
(2) never be calculated taking into account any cash and Cash
Equivalents held by such Persons;
-10-
(3) not include obligations arising from agreements of the Company or
a Restricted Subsidiary to provide for indemnification, adjustment of
purchase price,. earn-out or other similar obligations, in each case,
Incurred or assumed in connection with the disposition of any business or
assets of a Restricted Subsidiary.
The amount of any Indebtedness outstanding as of any date shall be:
(1) the accreted value thereof, in the case of any Indebtedness issued
with original issue discount;
(2) the principal amount thereof, in the case of any Indebtedness
other than Indebtedness issued with original issue discount; and
(3) the greater of the maximum repurchase or redemption price or
liquidation preference thereof, in the case of any Disqualified Stock or
Preferred Stock.
"Indenture" means this Indenture as amended or supplemented from time
to time.
"Ineligible Subsidiary" means:
(1) any Special Purpose Subsidiary;
(2) any Subsidiary Guarantor;
(3) any Subsidiary of the Company that, directly or indirectly, owns
any Capital Stock or Indebtedness of, or owns or holds any Lien on any
property of, the Company or any other Subsidiary of the Company that is not
a Subsidiary of the Subsidiary to be so designated; and
(4) any Subsidiary of the Company that, directly or indirectly, owns
any Capital Stock or Indebtedness of, or owns or holds any Lien on any
property of, any other Subsidiary of the Company that is not eligible to be
designated as an Unrestricted Subsidiary.
"Initial Purchaser" means Lucent.
"Initial Securities Resolution" means a resolution authorizing a
Tranche adopted by the board of directors of the Company or by a committee of
Officers or an Officer pursuant to delegation by the board of directors of the
Company.
"Initial Security" or "Initial Securities" means any debt security or
securities issued from time to time under the Indenture excluding any Exchange
Security or Exchange Securities and Private Exchange Security or Private
Exchange Securities.
"Investment" in any Person means any direct or indirect loan, advance,
guarantee or other extension of credit or capital contribution to (by means of
transfers of cash or other property to others or payments for property or
services for the account or use of others or
-11-
otherwise), or purchase or acquisition of Capital Stock, bonds, notes,
debentures or other securities or evidence of Indebtedness issued by, any other
Person.
"Issue Date" means the date on which the Securities are originally
issued.
"Legal Holiday" means a Saturday, Sunday or other day on which banking
institutions in the State of New York are authorized or required by law to
close.
"License" means any broadband Personal Communications Services license
issued by the FCC in connection with the operation of a System.
"License Subsidiary" means any Wholly Owned Restricted Subsidiary of
the Company designated as a License Subsidiary under the Company Credit
Agreement.
"Lien" means, with respect to any property or assets, any mortgage or
deed of trust, pledge, hypothecation, assignment, security interest, lien,
charge, easement (other than any easement not materially impairing usefulness or
marketability), encumbrance, preference, priority or other security agreement
with respect to such property or assets (including, without limitation, any
conditional sale or other title retention agreement having substantially the
same economic effect as any of the foregoing).
"liquidated damages" means any liquidated damages payable under a
Registration Agreement.
"Lucent" means Lucent Technologies Inc., a Delaware corporation.
"Lucent Note Purchase Agreement" means the Note Purchase Agreement
dated as of October 29, 1999, between TeleCorp Wireless and Lucent, as amended
as of the date of this Indenture.
"Management Stockholders" means Gerald T. Vento and Thomas H.
Sullivan.
"Marketing Affiliate" means any Person which engages in no activity
other than the registration, holding, maintenance or protection of trademarks
and the licensing thereof.
"MTA" means a Major Trading Area, as defined in 47 C.F.R. (S)24.202.
"Net Available Proceeds" from any Asset Disposition by any Person
means cash or readily marketable Cash Equivalents received (including by way of
sale or discounting of a note, installment receivable or other receivable, but
excluding any other consideration received in the form of assumption by the
acquiror of Indebtedness or other obligations relating to such properties or
assets or received in any other non-cash form) therefrom by such Person,
including any cash received by way of deferred payment or upon the monetization
or other disposition of any non-cash consideration (including notes or other
securities) received in connection with such Asset Disposition, net of
-12-
(1) all legal, title and recording tax expenses, commissions and other
fees and expenses incurred and all federal, state, foreign and local taxes
accrued as a liability as a consequence of such Asset Disposition;
(2) all payments made by such Person or any of its Restricted
Subsidiaries on any Indebtedness which is secured by such assets in
accordance with the terms of any Lien upon or with respect to such assets
or which must by the terms of such Lien, or in order to obtain a necessary
consent to such Asset Disposition or by applicable law, be repaid out of
the proceeds from such Asset Disposition;
(3) all payments made with respect to liabilities associated with the
assets which are the subject of the Asset Disposition, including, without
limitation, trade payables and other accrued liabilities;
(4) appropriate amounts to be provided by such Person or any
Restricted Subsidiary thereof, as the case may be, as a reserve in
accordance with GAAP against any liabilities associated with such assets
and retained by such Person or any Restricted Subsidiary thereof, as the
case may be, after such Asset Disposition, including, without limitation,
liabilities under any indemnification obligations and severance and other
employee termination costs associated with such Asset Disposition, until
such time as such amounts are no longer reserved or such reserve is no
longer necessary (at which time any remaining amounts will become Net
Available Proceeds to be allocated in accordance with the provisions of
clause (a)(3) of Section 4.06); and
(5) all distributions and other payments made to minority interest
holders in Restricted Subsidiaries of such Person or joint ventures as a
result of such Asset Disposition.
"Net Investment" means the excess of:
(1) the aggregate amount of all Investments made in any Unrestricted
Subsidiary or joint venture by the Company or any Restricted Subsidiary on
or after the date of this Indenture (in the case of an Investment made
other than in cash, the amount shall be the Fair Market Value of such
Investment as determined in good faith by the Board of the Company or such
Restricted Subsidiary); over
(2) the aggregate amount returned in cash on or with respect to such
Investments whether through interest payments, principal payments,
dividends or other distributions or payments; provided, however, that such
-------- -------
payments or distributions shall not be (and have not been) included in
clause (C) of the paragraph (a) of Section 4.04; provided further that,
-------- -------
with respect to all Investments made in any Unrestricted Subsidiary or
joint venture, the amounts referred to in clause (1) above with respect to
such Investments shall not exceed the aggregate amount of all such
Investments made in such Unrestricted Subsidiary or joint venture.
"Offer" means any written offer sent by the Company that is the
subject of an Offer to Purchase.
-13-
"Offering Memorandum" means either (i) the preliminary offering
memorandum, dated March 12, 2001 (as supplemented), relating to the sale by the
Initial Purchaser of Securities in an aggregate principal amount of $171.3
million, or, (ii) if made available to prospective purchasers after March 12,
2001, the final offering memorandum relating to such Securities.
"Offer to Purchase" means an Offer sent by the Company by first class
mail, postage prepaid, to each holder of Securities at such holder's address
appearing in the register for the Securities on the date of the Offer offering
to purchase up to (a) the Accreted Value of the Securities, if such Offer is on
or prior to March 31, 2006, or (b) the principal amount at maturity of the
Securities, if such Offer is after March 31, 2006, specified in such Offer at
the purchase price specified in such Offer (as determined pursuant to this
Indenture). Unless otherwise required by applicable law, the Offer shall
specify an Expiration Date of the Offer to Purchase which shall be not less than
30 days nor more than 60 days after the date of such Offer and a Purchase Date
for purchase of Securities within five Business Days after the Expiration Date.
The Company shall notify the Trustee at least 15 Business Days (or such shorter
period as is acceptable to the Trustee) prior to the mailing of the Offer of the
Company's obligation to make an Offer to Purchase, and the Offer shall be mailed
by the Company or, at the Company's request, by the Trustee in the name and at
the expense of the Company. The Offer shall contain all the information
required by applicable law and this Indenture to be included therein. The Offer
shall contain all instructions and materials necessary to enable holders of
Securities to tender their Securities pursuant to the Offer to Purchase. The
Offer shall also state:
(1) the provision of this Indenture pursuant to which the Offer to
Purchase is being made;
(2) the Expiration Date and the Purchase Date;
(3) the Purchase Amount;
(4) the Purchase Price;
(5) that such holder may tender all or any portion of the Securities
registered in the name of such holder and that any portion of a Security
tendered must be tendered in an integral multiple of $1,000 of principal
amount at maturity;
(6) the place or places where Securities are to be surrendered for
tender pursuant to the Offer to Purchase;
(7) that interest on any Security not tendered or tendered but not
purchased by the Company pursuant to the Offer to Purchase will continue to
accrue;
(8) that on the Purchase Date, the Purchase Price will become due and
payable upon each Security being accepted for payment pursuant to the Offer
to Purchase and that interest thereon shall cease to accrue on and after
the Purchase Date;
(9) that each holder electing to tender all or any portion of a
Security pursuant to the Offer to Purchase shall be required to surrender
such Security at the place or places
-14-
specified in the Offer prior to the close of business on the Expiration
Date (such Security being, if the Company or the Trustee so requires, duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Company and the Trustee duly executed by, the holder
thereof or such holder's attorney duly authorized in writing);
(10) that holders will be entitled to withdraw all or any portion of
Securities tendered if the Company (or its paying agent) receives, not
later than the close of business on the fifth Business Day next preceding
the Expiration Date, a telegram, telex, facsimile transmission or letter
setting forth the name of the holder, the principal amount of the Security
the holder tendered, the certificate number of the Security the holder
tendered and a statement that such holder is withdrawing all or a portion
of such holder's tender;
(11) that (a) if Securities in an aggregate principal amount at
maturity less than or equal to the Purchase Amount are duly tendered and
not withdrawn pursuant to the Offer to Purchase, the Company shall purchase
all such Securities and (b) if Securities in an aggregate principal amount
at maturity in excess of the Purchase Amount are tendered and not withdrawn
pursuant to the Offer to Purchase, the Company shall purchase Securities
having an aggregate principal amount at maturity equal to the Purchase
Amount on a pro rata basis (with such adjustments as may be deemed
appropriate so that only Securities in denominations of $1,000 of principal
amount at maturity or integral multiples thereof shall be purchased); and
(12) that in the case of any holder whose Security is purchased only
in part, 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 an aggregate principal amount at maturity equal to and in
exchange for the unpurchased portion of the Security so tendered.
An Offer to Purchase shall be governed by and effected in accordance with the
provisions above pertaining to any Offer.
"Officer" means the Chief Executive Officer, the Executive Vice
President, the Chief Financial Officer, the Chief Operating Officer, the
President, any Vice President, the Treasurer or any Secretary of the Company or
a Subsidiary of the Company, as the case may be.
"Officers' Certificate" means a certificate signed by two Officers and
delivered to the Trustee.
"Opinion of Counsel" means a written opinion delivered to the Trustee
from legal counsel who is acceptable to the Trustee. The counsel may be an
employee of or counsel to the Company or the Trustee.
"Permitted Asset Swap" means any exchange of assets by the Company or
a Restricted Subsidiary where the Company and/or its Restricted Subsidiaries
receive consideration at least 75% of which consists of (1) cash, (2) assets
that are used or useful in a business carried on by TeleCorp Wireless or Tritel
or their respective Subsidiaries or (3) any combination thereof.
-15-
"Permitted Holder" means:
(1) each of AT&T Wireless, the Cash Equity Investors, the Management
Stockholders, Digital PCS, L.L.C., Wireless 2000, Inc. and any of their
respective Affiliates and the respective successors (by merger,
consolidation, transfer or otherwise) to all or substantially all of the
respective businesses and assets of any of the foregoing; provided that
--------
Triton shall be deemed an Affiliate of AT&T Wireless so long as AT&T
Wireless owns at least 10% of the equity interests of Triton; and
(2) any "person" or "group" (as such terms are used in Sections 13(d)
and 14(d) of the Exchange Act) controlled by one or more persons identified
in clause (1) above.
"Permitted Investments" means:
(1) Investments in Cash Equivalents;
(2) Investments representing Capital Stock or obligations issued to
the Company or any Restricted Subsidiary in the course of the good faith
settlement of claims against any other Person or by reason of a composition
or readjustment of debt or a reorganization of any debtor of the Company or
any Restricted Subsidiary;
(3) deposits including interest-bearing deposits, maintained in the
ordinary course of business in banks;
(4) any Investment in any Person; provided, however, that, after
-------- -------
giving effect to such Investment, such Person is or becomes a Restricted
Subsidiary or such Person is merged, consolidated or amalgamated with or
into, or transfers or conveys substantially all of its assets to, or is
liquidated into, the Company or a Restricted Subsidiary;
(5) trade receivables and prepaid expenses, in each case arising in
the ordinary course of business; provided, however, that such receivables
-------- -------
and prepaid expenses would be recorded as assets of such Person in
accordance with GAAP;
(6) endorsements for collection or deposit in the ordinary course of
business by such Person of bank drafts and similar negotiable instruments
of such other Person received as payment for ordinary course of business
trade receivables;
(7) any interest rate agreements with an unaffiliated Person otherwise
permitted by clause (5) or (6) of paragraph (a) of Section 4.03;
(8) Investments received as consideration for an Asset Disposition in
compliance with the provisions of this Indenture described under Section
4.06;
(9) loans or advances to employees of the Company or any Restricted
Subsidiary in the ordinary course of business in an aggregate amount not to
exceed $5,000,000 in the aggregate at any one time outstanding;
-16-
(10) any Investment acquired by the Company or any of its Restricted
Subsidiaries as a result of a foreclosure by the Company or any of its
Restricted Subsidiaries or in connection with the settlement of any
outstanding Indebtedness or trade payable;
(11) loans and advances to officers, directors and employees for
business-related travel expense, moving expense and other similar expenses,
each incurred in the ordinary course of business;
(12) other Investments (with each such Investment being valued as of
the date made and without giving effect to subsequent changes in value) in
an aggregate amount not to exceed $15,000,000 at any one time outstanding;
(13) Investments in TeleCorp Wireless or Tritel that are used or
useful in their respective businesses or the businesses of their respective
Subsidiaries; and
(14) advances for working capital to, and for the purchase of assets
from, Airadigm in accordance with the agreement described in the Offering
Memorandum in the final paragraph under the heading "Business-Acquisition
History" or an agreement substantially similar thereto in an aggregate
amount not to exceed $110 million.
"Person" means any individual, corporation, limited or general
partnership, joint venture, association, joint stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Plan of Liquidation" means, with respect to any Person, a plan
(including by operation of law) that provides for, contemplates, or the
effectuation of which is preceded or accompanied by (whether or not
substantially contemporaneously):
(1) the sale, lease, conveyance or other disposition of all or
substantially all of the assets of such Person; and
(2) the distribution of all or substantially all of the proceeds of
such sale, lease, conveyance or other disposition and all or substantially
all of the remaining assets of such Person to holders of Capital Stock of
such Person.
"Preferred Stock," as applied to the Capital Stock of any Person,
means Capital Stock of such Person of any class or classes (however designated)
that ranks prior, as to the payment of dividends or as to the distribution of
assets upon any voluntary or involuntary liquidation, dissolution or winding up
of such Person, to shares of Capital Stock of any other class of such Person.
"principal" of a Security means the principal of the Security plus the
premium, if any, payable on the Security which is due or overdue or is to become
due at the relevant time.
"Private Exchange Securities" means, collectively, debt securities of
the Company that are identical in all material respects to the Exchange
Securities, except for transfer restrictions relating to such Private Exchange
Securities, issued by the Company (under the same
-17-
indenture as the Exchange Securities) simultaneously with the delivery of the
Exchange Securities in the Exchange Offer to any Securityholder that holds any
Securities acquired by it that have, or that are reasonably likely to be
determined to have, the status of an unsold allotment in an initial
distribution, or to any Securityholder that is not entitled to participate in
the Exchange Offer, upon the request of any such holder, in exchange for a like
aggregate principal amount at maturity of Securities held by such holder.
"Procurement Contract" means the General Agreement for Purchase of
Personal Communication Systems and Services effective as of May 12, 1998 between
TeleCorp Wireless and the Initial Purchaser, as amended.
"Public Sale" means any underwritten public offering, made on a
primary basis pursuant to a registration statement filed with, and declared
effective by, the Commission in accordance with the Securities Act.
"Purchase Agreement" means the Securities Purchase Agreement dated as
of April 3, 2001 by and among the Company, Lucent Technologies, Inc. and the
Trustee.
"Purchase Amount" means the aggregate principal amount at maturity of
the outstanding Securities offered to be purchased by the Company pursuant to
any Offer to Purchase (including, if less than 100%, the manner by which such
amount has been determined pursuant to a specified provision of this Indenture
requiring such Offer to Purchase).
"Purchase Date" means the settlement date with respect to any Offer to
Purchase.
"Purchase Money Indebtedness" means any Indebtedness (including,
without limitation, Capital Lease Obligations); provided that the net proceeds
of such Indebtedness are utilized solely for the purpose of financing the cost
(including, without limitation, the cost of design, development, site
acquisition, construction, integration, handset manufacture or acquisition or
microwave relocation) of assets used or usable in the business of the borrower
and its Restricted Subsidiaries (including, without limitation, through the
acquisition of Capital Stock of an entity engaged in the business of the
borrower and its Restricted Subsidiaries).
"Purchase Price" means, with respect to any Offer to Purchase, the
purchase price or prices to be paid by the Company for each $1,000 aggregate
principal amount at maturity of Securities accepted for payment (as specified
pursuant to this Indenture).
"Qualified Joint Venture" means any joint venture or other entity in
respect of which not less than 75% of the equity interests and of the voting
power shall be owned by one or more of (a) the Company or its Affiliates, (b)
Thomas H. Sullivan or Gerald T. Vento so long as they collectively hold a
majority of the Voting Stock of the Company at the time the Investment is made,
(c) a principal telecommunications carrier (or an Affiliate of such a carrier)
of the country or international region in which the relevant activities of such
joint venture or other entity are carried on, (d) a principal international
telecommunications carrier (or an affiliate of such a carrier, (e) AT & T
Wireless or its Affiliates, (f) a financial investor that has total assets in
excess of $250,000,000 or (g) an investment fund that has over $250,000,000 of
total assets under management.
-18-
"Qualified License" means, as of the date of determination, any
License covering or adjacent to any geographical area in respect of which the
Company or any Restricted Subsidiary owns, as of the Business Day immediately
prior to such date of determination, at least one other License covering a
substantial portion of such area.
"Qualified Stock" means any Capital Stock of the Company other than
Disqualified Stock.
"Real Property Subsidiary" means any Wholly Owned Subsidiary of the
Company designated by the Company as a Real Property Subsidiary under the
Company Credit Agreement.
"Refinance" means refinance, renew, extend, replace or refund; and
"Refinancing" and "Refinanced" have correlative meanings.
"Refinancing Indebtedness" means Indebtedness that is Incurred to
refund, refinance, replace, renew, repay or extend (including pursuant to any
defeasance or discharge mechanism) any Indebtedness of the Company or any
Restricted Subsidiary existing on the date of this Indenture or Incurred in
compliance with this Indenture (including Indebtedness of the Company that
Refinances Refinancing Indebtedness); provided, however, that:
-------- -------
(1) the Refinancing Indebtedness has a Stated Maturity no earlier than
the Stated Maturity of the Indebtedness being Refinanced;
(2) the Refinancing Indebtedness has an Average Life at the time such
Refinancing Indebtedness is Incurred that is equal to or greater than the
Average Life of the Indebtedness being refinanced;
(3) such Refinancing Indebtedness is Incurred in an aggregate
principal amount (or if issued with original issue discount, an aggregate
issue price) that is equal to or less than the aggregate principal amount
(or if issued with original issue discount, the aggregate accreted value)
then outstanding of the Indebtedness being Refinanced plus the amount of
any premium required to be paid in connection with such Refinancing
pursuant to the terms of the Indebtedness being Refinanced or the amount of
any premium reasonably determined by the issuer of such Indebtedness as
necessary to accomplish such Refinancing by means of a tender offer,
exchange offer or privately negotiated repurchase, plus the expenses of
such issuer reasonably incurred in connection therewith; and
(4) if the Indebtedness being Refinanced is pari passu with the
----------
Securities, such Refinancing Indebtedness is made pari passu with, or
----------
subordinate in right of payment to, the Securities, and, if the
Indebtedness being Refinanced is subordinate in right of payment to the
Securities, such Refinancing Indebtedness is subordinate in right of
payment to the Securities on terms no less favorable to the holders of
Securities than those contained in the Indebtedness being Refinanced;
-19-
provided further, however, that Refinancing Indebtedness shall not include
- ---------------- -------
(A) Indebtedness of a Restricted Subsidiary that Refinances
Indebtedness of the Company; or
(B) Indebtedness of the Company or a Restricted Subsidiary that
Refinances Indebtedness of an Unrestricted Subsidiary.
"Representative" means the trustee, agent or representative (if any)
for an issue of Senior Indebtedness.
"Required Holders" means the holders of a majority in Accreted Value
of the outstanding Securities, voting as a single class.
"Restricted Subsidiary" means any Subsidiary of the Company other than
an Unrestricted Subsidiary.
"Revocation" has the meaning set forth in Section 4.13.
"Sale/Leaseback Transaction" means an arrangement relating to property
owned on the date of this Indenture or thereafter acquired by the Company or a
Restricted Subsidiary whereby the Company or a Restricted Subsidiary transfers
such property to a Person and the Company or such Restricted Subsidiary leases
it from such Person, other than leases between the Company and a Wholly Owned
Subsidiary or between Wholly Owned Subsidiaries.
"Secured Indebtedness" means any Indebtedness of the Company secured
by a Lien. "Secured Indebtedness" of any Subsidiary Guarantor has a correlative
meaning.
"Securities Act" means the Securities Act of 1933, as amended.
"Security" or "Securities" means any Security or Securities issued
under this Indenture, including any Initial Security or Initial Securities or
any Exchange Security or Exchange Securities or any Private Exchange Security or
Private Exchange Securities issued in exchange therefor in connection with an
Exchange Offer undertaken pursuant to the Exchange and Registration Rights
Agreement.
"Securityholder" or "Holder" means the Person in whose name a Security
is registered on the registrar's books.
"Senior Indebtedness" of the Company means the principal of, premium
(if any) and accrued and unpaid interest (including interest accruing on or
after the filing of any petition in bankruptcy or for reorganization of the
Company, regardless of whether or not a claim for post-filing interest is
allowed in such proceedings) on, and fees and other amounts owing in respect of
Bank Indebtedness and all other Indebtedness of the Company, including FCC Debt,
whether outstanding on the date of this Indenture or thereafter Incurred, unless
in the instrument creating or evidencing the same or pursuant to which the same
is outstanding it is provided that such obligations are not superior in right of
payment to the Securities; provided, however, that Senior Indebtedness shall not
-------- -------
include:
-20-
(1) any obligation of the Company to any Subsidiary of the Company;
(2) any liability for federal, state, local or other taxes owed or
owing by the Company;
(3) any accounts payable or other liability to trade creditors arising
in the ordinary course of business (including guarantees thereof or
instruments evidencing such liabilities);
(4) any Indebtedness or obligation of the Company, and any accrued and
unpaid interest in respect thereof, that by its terms is subordinate or
junior in any respect to any other Indebtedness or obligation of the
Company, including any Senior Subordinated Indebtedness of the Company and
any Subordinated Indebtedness of the Company;
(5) any obligations with respect to any Capital Stock; or
(6) any Indebtedness Incurred in violation of this Indenture.
"Senior Indebtedness" of any Subsidiary Guarantor has a correlative meaning.
"Senior Subordinated Indebtedness" of the Company means the Securities
and any other Indebtedness of the Company that specifically provides that such
Indebtedness is to rank pari passu with the Securities in right of payment and
----------
is not subordinated by its terms in right of payment to any Indebtedness or
other obligation of the Company which is not Senior Indebtedness. "Senior
Subordinated Indebtedness" of a Subsidiary Guarantor has a correlative meaning.
"Significant Subsidiary" means any Restricted Subsidiary that would be
a "Significant Subsidiary" of the Company within the meaning of Rule 1-02 under
Regulation S-X promulgated by the Commission; provided that for purposes of
--------
Section 6.01(7) the term "Significant Subsidiary" shall include TeleCorp
Wireless, Tritel and their respective Restricted Subsidiaries.
"Special Default Release Conditions" means the first to occur of the
following events: (i) none of the Securities are then held by the Initial
Purchaser or its Affiliates, (ii) the Company shall have acquired from the
Initial Purchaser, as vendor under the Procurement Contract (in such capacity,
the "Vendor"), shall have deployed and shall have paid all amounts to the Vendor
with respect to one mobile switching center and fifty base stations for Iowa
Markets (as defined in the Procurement Contract) and one mobile switching center
and one hundred base stations for Wisconsin Markets (as defined in the
Procurement Contract) and (iii) the Exchange Notes shall have been issued.
"Special Purpose Subsidiary" means any Equipment Subsidiary, License
Subsidiary or Real Property Subsidiary.
"Stated Maturity" means, with respect to any security, the date
specified in such security as the fixed date on which the final payment of
principal of such security is due and payable, including pursuant to any
mandatory redemption provision (but excluding any provision
-21-
providing for the repurchase of such security at the option of the holder
thereof upon the happening of any contingency beyond the control of the issuer
unless such contingency has occurred).
"Stockholders' Agreement" means the Stockholders' Agreement dated as
of November 13, 2000, among AT&T Wireless, the Cash Equity Investors, the
Management Stockholders and the Company and certain other parties, as such
agreement may be amended from time to time in accordance with the provisions of
such agreement, so long as the terms of any such amendment are no less favorable
to the Securityholders than the terms of the Stockholders' Agreement in effect
on the date of this Indenture.
"Strategic Equity Investor" means any of the Cash Equity Investors,
any Affiliate thereof, any other Person engaged in a business carried on by
TeleCorp Wireless or Tritel or their respective Subsidiaries whose Total Equity
Market Capitalization exceeds $500,000,000 or any other Person who has at least
$100,000,000 total funds under management and who has issued an irrevocable,
unconditional commitment to purchase Qualified Stock of the Company for an
aggregate purchase price that does not exceed 20% of the value of the funds
under management by such Person.
"Subordinated Indebtedness" means any Indebtedness of the Company or
any Subsidiary Guarantor (whether outstanding on the date of this Indenture or
thereafter Incurred) which is by its terms expressly subordinate or junior in
right of payment to the Securities or the Subsidiary Guarantee of any such
Subsidiary Guarantor, as the case may be.
"Subsidiary" of any Person means:
(1) a corporation more than 50% of the outstanding Voting Stock of
which is owned, directly or indirectly, by such Person or by one or more
other Subsidiaries of such Person or by such Person and one or more other
Subsidiaries thereof; or
(2) any other Person (other than a corporation) in which such Person,
or one or more other Subsidiaries of such Person or such Person and one or
more other Subsidiaries thereof, directly or indirectly, has at least a
majority ownership and voting power relating to the policies, management
and affairs thereof.
"Subsidiary Guarantee" means each guarantee of the obligations with
respect to the Securities issued by a Subsidiary of the Company pursuant to the
terms of this Indenture, each such Subsidiary Guarantee having subordination
provisions equivalent to those contained in this Indenture with respect to the
Securities and being substantially in the form prescribed in this Indenture.
"Subsidiary Guarantor" means any Subsidiary of the Company that has
issued a Subsidiary Guarantee.
"System" means, as to any Person, assets constituting a radio
communications system authorized under the rules for wireless communications
services (including any license and the network, marketing, distribution, sales,
customer interface and operations and functions relating thereof) owned and
operated by such Person.
-22-
"TeleCorp Wireless" means TeleCorp Wireless, Inc. (formerly known as
TeleCorp PCS, Inc.), a Delaware corporation.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. (S)(S) 77aaa-
-----
77bbbb) as in effect on the date of this Indenture.
"Total Assets" means the total assets of the Company, as shown on the
most recent quarterly balance sheet of the Company.
"Total Consolidated Indebtedness" of any Person means, at any date of
determination, an amount equal to:
(1) the accreted value of all Indebtedness, in the case of any
Indebtedness issued with original issue discount; plus
(2) the principal amount of all Indebtedness, in the case of any other
Indebtedness, of such Person and its Restricted Subsidiaries outstanding as
of the date of determination.
"Total Equity Market Capitalization" of any Person means, as of any
day of determination, the sum of (a) the product of (1) the aggregate number of
outstanding primary shares of common stock of such Person on such day (which
shall not include any options or warrants on, or securities convertible or
exchangeable into, shares of common stock of such Person) multiplied by (2) the
average closing price of such common stock listed on a national securities
exchange or the Nasdaq National Market System over the 20 consecutive Business
Days immediately preceding such day plus (b) the liquidation value of any
outstanding shares of preferred stock of such Person on such day.
"Total Invested Capital" of any Person means, as of any date of
determination, the sum of, without duplication:
(1) the total amount of equity contributed to such Person as of the
date of this Indenture (as set forth on the December 31, 2000 consolidated
audited balance sheet of such Person); provided, however, that the amount
-------- -------
of equity with respect to Capital Stock issued subsequent to March 31, 2000
in exchange for assets that are used or useful in a business carried on by
TeleCorp Wireless or Tritel or their respective Subsidiaries shall for this
purpose be the Fair Market Value of such assets; plus
(2) irrevocable, unconditional commitments from any Strategic Equity
Investor to purchase Capital Stock of such Person (other than Disqualified
Stock) within 36 months of the date of issuance of such commitment, but in
any event not later than the Stated Maturity of the Securities; provided,
--------
however, that such commitments shall exclude commitments related to any
-------
Investment in any other Person incorporated, formed or created for the
purpose of acquiring one or more Qualified Licenses unless such other
Person shall become a Restricted Subsidiary of such Person; plus
(3) the aggregate net cash proceeds received by a Person from capital
contributions or the issuance or sale of Capital Stock of such Person
-23-
(other than Disqualified Stock, but including Qualified Stock issued upon
the conversion of convertible Indebtedness or upon the exercise of options,
warrants or rights to purchase Qualified Stock) subsequent to the date of
the balance sheet referred to in clause (1), other than issuances or sales
of Capital Stock to a Restricted Subsidiary of such Person and other than
capital contributions from, or issuances or sales of Capital Stock to, any
Strategic Equity Investor in connection with (a) any Investment in any
Person incorporated, formed or created for the purpose of acquiring one or
more Qualified Licenses and (b) any Investment in any Person engaged in a
business carried on by TeleCorp Wireless or Tritel or their respective
Subsidiaries, unless, in either case, such Person shall become a Restricted
Subsidiary; provided, however, such aggregate net cash proceeds shall
-------- -------
exclude any amounts included as commitments to purchase Capital Stock in
the preceding clause (2); plus
(4) the Fair Market Value of assets that are used or useful in a
business carried on by Telecorp Wireless or Tritel or their respective
Subsidiaries or of the Capital Stock of any other Person engaged in a
business carried on by Telecorp Wireless or Tritel or their respective
Subsidiaries received by such Person as a capital contribution or in
exchange for Capital Stock of such Person (other than Disqualified Stock)
subsequent to the date of the balance sheet referred to in clause (1),
other than (x) capital contributions from a Restricted Subsidiary of such
Person or issuance or sales of Capital Stock of such Person to a Restricted
Subsidiary of such Person or (y) the proceeds from the sale of Qualified
Stock to an employee stock ownership plan or other trust established by
such Person or any of its subsidiaries; plus
(5) the aggregate net cash proceeds received by such Person or any
Restricted Subsidiary of such Person from the sale, disposition or
repayment of any Investment made after the date of the balance sheet
referred to in clause (1) and constituting a Restricted Payment in an
amount equal to the lesser of (a) the return of capital with respect to
such Investment and (b) the initial amount of such Investment, in either
case, less the cost of the disposition of such Investment; plus
(6) an amount equal to the consolidated Net Investment of such Person
and/or any of its Restricted Subsidiaries in any Subsidiary that has been
designated as an Unrestricted Subsidiary after the date of this Indenture
upon its redesignation as a Restricted Subsidiary in accordance with
Section 4.13; plus
(7) solely with respect to the calculation of the Total Invested
Capital of TeleCorp Wireless, the cash proceeds from the sale to Lucent of
the Series A Notes issued under the Lucent Note Purchase Agreement (less
payments made by the Company or any of its Subsidiaries with respect to
such Series A Notes (other than payments in the form of additional Series A
Notes)); plus
(8) Total Consolidated Indebtedness of such Person; minus
(9) the aggregate amount of all Restricted Payments (including any
Designation Amount, but other than a Restricted Payment of the type
referred to in
-24-
clause (3)(b) of paragraph (c) of Section 4.04) declared or made on or
after the date of this Indenture.
"Tranche" means all Securities issued hereunder that have the same
stated maturity, interest payment dates and interest rate.
"Tritel" means Tritel, Inc., a Delaware corporation.
"Tritel Credit Agreement" means the Amended and Restated Loan
Agreement dated as of March 31, 1999, as amended, among Tritel PCS, Inc.,
Tritel, Toronto-Dominion (Texas), Inc., as administrative agent, and the banks
party thereto.
"Triton" means Triton PCS, Inc., a Delaware corporation.
"Trustee" means the party named as such in this Indenture until a
successor replaces it and, thereafter, means the successor.
"Trust Officer" means any officer within the Corporate Trust Office
including any Vice President, Managing Director, Assistant Vice President,
Secretary, Assistant Secretary, Treasurer or Assistant Treasurer or any other
officer of the Trustee customarily performing functions similar to those
performed by any of the above designated officers and also, with respect to a
particular matter, any other officer to whom such matter is referred because of
such officer's knowledge and familiarity with the particular subject.
"Uniform Commercial Code" means the New York Uniform Commercial Code
as in effect from time to time.
"Unrestricted Subsidiary" means (1) TeleCorp Wireless, Tritel and
their respective Subsidiaries; provided, however that with respect to the
-------- -------
Designated Covenants (including references to defined terms used in the
Designated Covenants) all references to Restricted Subsidiaries of the Company
shall be deemed to include TeleCorp Wireless, Tritel and their respective
Subsidiaries (other than RW Acquisition, L.L.C. and TeleCorp Acquisition Sub,
L.L.C.), (2) any Subsidiary of the Company and, for purposes of the Designated
Covenants, of TeleCorp Wireless or Tritel (other than, in each case, an
Ineligible Subsidiary) designated after the date of this Indenture as such
pursuant to, and in compliance with, Section 4.13 and (3) any Marketing
Affiliate. Any such designation of any Subsidiary of the Company and, for the
purposes of the Designated Covenants of TeleCorp Wireless or Tritel, may be
revoked by a resolution of the board of directors of the Company delivered to
the Trustee certifying compliance with Section 4.13, subject to the provisions
of Section 4.13. Nothing contained herein shall cause TeleCorp Wireless or
Tritel or any of their Subsidiaries to be a Subsidiary Guarantor hereunder.
"U.S. Government Obligations" means direct obligations (or
certificates representing an ownership interest in such obligations) of the
United States of America (including any agency or instrumentality thereof) for
the payment of which the full faith and credit of the United States of America
is pledged and which are not callable or redeemable at the issuer's option.
-25-
"Voting Stock" of any Person means the Capital Stock of such Person
which ordinarily has voting power for the election of directors (or Persons
performing similar functions) of such Person, whether at all times or only so
long as no senior class of securities has such voting power by reason of any
contingency.
"Wholly Owned Subsidiary" means a Restricted Subsidiary, all of the
outstanding Capital Stock or other ownership interests of which (other than
directors' qualifying shares) shall at the time be owned by the Company and/or
by one or more Wholly Owned Subsidiaries.
"Wireless Credit Agreement" means the Credit Agreement dated as of
July 17, 1998, as amended, waived or otherwise modified from time to time, among
TeleCorp Wireless, the financial institutions named therein as lenders, The
Chase Manhattan Bank, as Administrative Agent and Issuing Bank, TD Securities
(USA) Inc., as Syndication Agent, and Bankers Trust Company, as Documentation
Agent.
Section 1.02. Other Definitions.
-----------------
Term Defined in Section
- ---- ------------------
"Blockage Notice"....................................................... 10.03
"Change of Control Offer"............................................... 4.08(b)
"covenant defeasance option"............................................ 8.01(b)
"cross acceleration provision".......................................... 6.01
"Designation Amount".................................................... 4.13
"Event of Default"...................................................... 6.01
"Guaranteed Obligations"................................................ 11.01
"judgment default provision"............................................ 6.01
"legal defeasance option"............................................... 8.01(b)
"Notice of Default"..................................................... 6.01
"pay its guarantee"..................................................... 12.03
"pay the Securities".................................................... 10.03
"Paying Agent".......................................................... 2.03
"Payment Blockage Period"............................................... 10.03
"protected purchaser"................................................... 2.07
"Registrar"............................................................. 2.03
"Revocation"............................................................ 4.13
"Surviving Entity"...................................................... 5.01(a)
Section 1.03. Incorporation by Reference of Trust Indenture Act. This
-------------------------------------------------
Indenture is subject to the mandatory provisions of the TIA, which are
incorporated by reference in and made a part of this Indenture. The following
TIA terms have the following meanings:
"indenture securities" means the Securities and any Subsidiary
Guarantees.
"indenture security holder" means a Holder or Securityholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
-26-
"obligor" on the indenture securities means the Company, any
Subsidiary Guarantors and any other obligor on the indenture securities. All
other TIA terms used in this Indenture that are defined by the TIA, defined by
TIA reference to another statute or defined by SEC rule have the meanings
assigned to them by such definitions.
Section 1.04. Rules of Construction. Unless the context otherwise
---------------------
requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning assigned
to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) "including" means including without limitation;
(5) words in the singular include the plural and words in the plural
include the singular;
(6) unsecured Indebtedness shall not be deemed to be subordinate or
junior to Secured Indebtedness merely by virtue of its nature as unsecured
Indebtedness;
(7) the principal amount of any non-interest bearing or other discount
security at any date shall be the principal amount thereof that would be
shown on a balance sheet of the issuer dated such date prepared in
accordance with GAAP;
(8) the principal amount of any Preferred Stock shall be (i) the
maximum liquidation value of such Preferred Stock or (ii) the maximum
mandatory redemption or mandatory repurchase price with respect to such
Preferred Stock, whichever is greater.
ARTICLE 2
The Securities
Section 2.01. Initial Securities Issuable in Tranches. The Initial
---------------------------------------
Securities may be issued from time to time in one or more Tranches. Each Tranche
shall be created by an Initial Securities Resolution or one or more indentures
supplemental hereto that establish the terms of the Tranche, which may include
the following:
(a) the title of the Tranche;
(b) the aggregate principal amount of the Tranche;
(c) the interest rate
(d) the forms of the Initial Securities, which may be in the form of
Exhibit A; and
-27-
(e) any terms that may be required by or advisable under U.S. laws.
Except as specified in an Initial Securities Resolution or one or more
indentures supplemental hereto, all Securities issued hereunder shall have the
same terms and provisions. All Securities of one Tranche need not be issued at
the same time and additional Initial Securities, Exchange Securities and Private
Exchange Securities of a particular Tranche shall be issuable pursuant to
Section 2.02.
Section 2.02. Form and Dating. Each Security shall be in one of the
---------------
forms approved from time to time by or pursuant to an Initial Securities
Resolution, or established in one or more indentures supplemental hereto. Any
form of Security approved by or pursuant to an Initial Securities Resolution
must be acceptable as to form to the Trustee, such acceptance to be evidenced by
the Trustee's authentication of Securities in that form or a certificate signed
by a senior officer of the Trustee and delivered to the Company. Provisions
relating to the Initial Securities, the Private Exchange Securities and the
Exchange Securities are set forth in Appendix A , which is hereby incorporated
in and expressly made a part of this Indenture. The (i) Initial Securities and
the Trustee's certificate of authentication and (ii) Private Exchange Securities
and the Trustee's certificate of authentication may each be substantially in the
form of Exhibit A hereto, which is hereby incorporated in and expressly made a
part of this Indenture. The Exchange Securities and the Trustee's certificate of
authentication may each be substantially in the form of Exhibit B hereto, which
is hereby incorporated in and expressly made a part of this Indenture. The
Securities may have notations, legends or endorsements required by law, stock
exchange rule, agreements to which the Company or any Subsidiary Guarantor is
subject, if any, or usage (provided that any such notation, legend or
endorsement is in a form acceptable to the Company). Each Security shall be
dated the date of its authentication. The Securities shall be issuable only in
registered form without interest coupons and only in denominations of $1,000 of
principal amount at maturity and integral multiples thereof.
Section 2.03. Execution and Authentication. One or more Officers shall
----------------------------
sign the Securities for the Company by manual or facsimile signature. If an
Officer whose signature is on a Security no longer holds that office at the time
the Trustee authenticates the Security, the Security shall be valid
nevertheless.
A Security shall not be valid until an authorized signatory of the
Trustee manually signs the certificate of authentication on the Security. The
signature shall be conclusive evidence that the Security has been authenticated
under this Indenture.
Prior to the delivery of a Security to the Trustee for authentication
in any form approved by or pursuant to an Initial Securities Resolution, the
Company shall deliver to the Trustee the Initial Securities Resolution by or
pursuant to which such form of Security has been approved, which Initial
Securities Resolution shall have attached thereto a true and correct copy of the
form of Security which has been approved thereby and which may be substantially
in the forms set out in Exhibit A or Exhibit B (subject to Section 2.02).
The Trustee shall authenticate and make available for delivery
Securities for original issue in an aggregate principal amount at maturity of up
to $750 million in accordance with the provisions of this Indenture and
otherwise as set forth in Appendix A.
-28-
The Trustee may appoint an authenticating agent reasonably acceptable
to the Company to authenticate the Securities. Any such appointment shall be
evidenced by an instrument signed by a Trust Officer, a copy of which shall be
furnished to the Company. Unless limited by the terms of such appointment, an
authenticating agent may authenticate Securities whenever the Trustee may do so.
Each reference in this Indenture to authentication by the Trustee includes
authentication by such agent. An authenticating agent has the same rights as
any Registrar, Paying Agent or agent for service of notices and demands.
Section 2.04. Registrar and Paying Agent. The Company shall maintain
--------------------------
an office or agency where Securities may be presented for registration of
transfer or for exchange (the "Registrar") and an office or agency where
Securities may be presented for payment (the "Paying Agent"). The Registrar
shall keep a register of the Securities and of their transfer and exchange. The
Company may have one or more co-registrars and one or more additional paying
agents. The term "Paying Agent" includes any additional paying agent, and the
term "Registrar" includes any co-registrars. The Company initially appoints the
Trustee as (i) Registrar and Paying Agent in connection with the Securities and
(ii) the Securities Custodian (as defined in Appendix A) with respect to the
Global Securities (as defined in Appendix A).
The Company shall enter into an appropriate agency agreement with any
Registrar or Paying Agent not a party to this Indenture, which shall incorporate
the terms of the TIA. Any such agreement shall implement the provisions of this
Indenture that relate to such agent. The Company shall notify the Trustee of
the name and address of any such agent. If the Company fails to maintain a
Registrar or Paying Agent, the Trustee shall act as such and shall be entitled
to appropriate compensation therefor pursuant to Section 7.07. The Company or
any of its domestically organized Wholly Owned Subsidiaries may act as Registrar
or Paying Agent .
The Company may remove any Registrar or Paying Agent upon written
notice to such Registrar or Paying Agent and to the Trustee; provided, however,
-------- -------
that no such removal shall become effective until (1) acceptance of an
appointment by a successor as evidenced by an appropriate agreement entered into
by the Company and such successor Registrar or Paying Agent, as the case may be,
and delivered to the Trustee or (2) notification to the Trustee that the Company
or the Trustee shall serve as Registrar or Paying Agent until the appointment of
a successor in accordance with clause (1) above. The Registrar or Paying Agent
may resign at any time upon written notice; provided, however, that the Trustee
-------- -------
may resign as Registrar or Paying Agent only if the Trustee also resigns as
Trustee in accordance with Section 7.08.
Section 2.05. Paying Agent To Hold Money in Trust. Prior to each due
-----------------------------------
date of the principal and interest on any Security, the Company shall deposit
with the Paying Agent (or if the Company or a Subsidiary is acting as Paying
Agent, segregate and hold in trust for the benefit of the Persons entitled
thereto) a sum sufficient to pay such principal and interest then so becoming
due. The Company shall require each Paying Agent (other than the Company or the
Trustee) to agree in writing that the Paying Agent shall hold in trust for the
benefit of Securityholders or the Trustee all money held by the Paying Agent for
the payment of principal of or interest on the Securities and shall notify the
Trustee of any default by the Company in making any such payment. If the Company
or a Subsidiary of the Company acts as Paying Agent, it shall segregate the
money held by it as Paying Agent and hold it as a separate trust fund. The
Company at any time may require a Paying Agent to pay all money held by it to
the
-29-
Trustee and to account for any funds disbursed by the Paying Agent. Upon
complying with this Section, the Paying Agent shall have no further liability
for the money delivered to the Trustee.
Section 2.06. Securityholder Lists. The Trustee shall preserve in as
--------------------
current a form as is reasonably practicable the most recent list available to it
of the names and addresses of Securityholders. If the Trustee is not the
Registrar, the Company shall furnish, or cause the Registrar to furnish, to the
Trustee, in writing at least five Business Days before each interest payment
date and at such other times as the Trustee may request in writing, a list in
such form and as of such date as the Trustee may reasonably require of the names
and addresses of Securityholders.
Section 2.07. Transfer and Exchange. The Securities shall be issued in
---------------------
registered form and shall be transferable only upon the surrender of a Security
for registration of transfer and in compliance with Appendix A. When a Security
is presented to the Registrar with a request to register a transfer, the
Registrar shall register the transfer as requested if the requirements of
Section 8-401(a)(l) of the Uniform Commercial Code are met. When Securities are
presented to the Registrar with a request to exchange them for an equal
principal amount at maturity of Securities of other denominations, the Registrar
shall make the exchange as requested if the same requirements are met. To permit
registration of transfers and exchanges, the Company shall execute and the
Trustee shall authenticate Securities (in the form of Exhibit A or Exhibit B, as
appropriate) at the Registrar's request. The Company may require payment of a
sum sufficient to pay all taxes, assessments or other governmental charges in
connection with any transfer or exchange pursuant to this Section 2.07. The
Company shall not be required to make and the Registrar need not register
transfers or exchanges of Securities selected for redemption (except, in the
case of Securities to be redeemed in part, the portion thereof not to be
redeemed) or any Securities for a period of 15 days before a selection of
Securities to be redeemed.
Prior to the due presentation for registration of transfer of any
Security, the Company, any Subsidiary Guarantor, the Trustee, the Paying Agent
and the Registrar may deem and treat the Person in whose name a Security is
registered as the absolute owner of such Security for the purpose of receiving
payment of principal of and interest, if any, on such Security and for all other
purposes whatsoever, whether or not such Security is overdue, and none of the
Company, any Subsidiary Guarantor, the Trustee, the Paying Agent, or the
Registrar shall be affected by notice to the contrary.
Any Holder of a Global Security shall, by acceptance of such Global
Security, agree that transfers of beneficial interest in such Global Security
may be effected only through a book-entry system maintained by (i) the Holder of
such Global Security (or its agent) or (ii) any Holder of a beneficial interest
in such Global Security, and that ownership of a beneficial interest in such
Global Security shall be required to be reflected in a book entry.
All Securities issued upon any transfer or exchange pursuant to the
terms of this Indenture will evidence the same debt and will be entitled to the
same benefits under this Indenture as the Securities surrendered upon such
transfer or exchange.
-30-
Section 2.08. Replacement Securities. If a mutilated Security is
----------------------
surrendered to the Registrar or if the Holder of a Security claims that the
Security has been lost, destroyed or wrongfully taken, the Company shall issue
and the Trustee shall authenticate a replacement Security if the requirements of
Section 8-405 of the Uniform Commercial Code are met, such that the Holder (i)
satisfies the Company and the Trustee within a reasonable time after such Holder
has notice of such loss, destruction or wrongful taking and the Registrar does
not register a transfer prior to receiving such notification, (ii) makes such
request to the Company or the Trustee prior to the Security being acquired by a
protected purchaser as defined in Section 8-303 of the Uniform Commercial Code
(a "protected purchaser") and (iii) satisfies any other reasonable requirements
of the Trustee. If required by the Company or the Trustee, such Holder shall
furnish an indemnity bond sufficient in the judgment of the Company and the
Trustee to protect the Company, the Trustee, the Paying Agent and the Registrar
from any loss that any of them may suffer if a Security is replaced. The Company
and the Trustee may charge the Holder for their expenses in replacing a
Security. In the event any such mutilated, lost, destroyed or wrongfully taken
Security has become or is about to become due and payable, the Company in its
discretion may pay such Security instead of issuing a new Security in
replacement thereof.
Every replacement Security is an additional obligation of the Company.
The provisions of this Section 2.08 are exclusive and shall preclude
(to the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, lost, destroyed or wrongfully taken
Securities.
Section 2.09. Outstanding Securities. Securities outstanding at any
----------------------
time are all Securities authenticated by the Trustee except for those canceled
by it, those delivered to it for cancellation and those described in this
Section 2.09 as not outstanding. Subject to Section 14.06, a Security does not
cease to be outstanding because the Company or an Affiliate of the Company holds
the Security.
If a Security is replaced pursuant to Section 2.08, it ceases to be
outstanding unless the Trustee and the Company receive proof satisfactory to
them that the replaced Security is held by a protected purchaser.
If the Paying Agent segregates and holds in trust, in accordance with
this Indenture, on a redemption date or maturity date money sufficient to pay
all principal and interest and liquidated damages payable on that date with
respect to the Securities (or portions thereof) to be redeemed or maturing, as
the case may be, and the Paying Agent is not prohibited from paying such money
to the Securityholders on that date pursuant to the terms of this Indenture,
then on and after that date such Securities (or portions thereof) cease to be
outstanding and interest on them ceases to accrue.
Section 2.10. Temporary Securities. In the event that Definitive
--------------------
Securities (as defined in Appendix A) are to be issued under the terms of this
Indenture, until such Definitive Securities are ready for delivery, the Company
may prepare and the Trustee shall authenticate temporary Securities. Temporary
Securities shall be substantially in the form of Definitive Securities but may
have variations that the Company considers appropriate for temporary Securities.
Without unreasonable delay, the Company shall prepare and the Trustee shall
-31-
authenticate Definitive Securities and deliver them in exchange for temporary
Securities upon surrender of such temporary Securities at the office or agency
of the Company, without charge to the Holder.
Section 2.11. Cancellation. The Company at any time may deliver
------------
Securities to the Trustee for cancellation. The Registrar and the Paying Agent
shall forward to the Trustee any Securities surrendered to them for registration
of transfer, exchange or payment. The Trustee and no one else shall cancel all
Securities surrendered for registration of transfer, exchange, payment or
cancellation and deliver canceled Securities to the Company pursuant to written
direction by an Officer. The Company may not issue new Securities to replace
Securities it has redeemed, paid or delivered to the Trustee for cancellation.
The Trustee shall not authenticate Securities in place of canceled Securities
other than pursuant to the terms of this Indenture.
Section 2.12. Defaulted Interest. If the Company defaults in a payment
------------------
of interest on the Securities, the Company shall pay the defaulted interest
(plus interest on such defaulted interest to the extent lawful) in any lawful
manner. The Company may pay the defaulted interest to the Persons who are
Securityholders on a subsequent special record date. The Company shall fix or
cause to be fixed any such special record date and payment date to the
reasonable satisfaction of the Trustee and shall promptly mail or cause to be
mailed to each Securityholder a notice that states the special record date, the
payment date and the amount of defaulted interest to be paid.
Section 2.13. CUSIP Numbers. The Company in issuing the Securities may
-------------
use CUSIP numbers (if then generally in use) and, if so, the Trustee shall use
CUSIP numbers in notices of redemption solely as a convenience to Holders;
provided, however, that any such notice may state that (i) none of the Company,
any Subsidiary Guarantor, the Trustee or the Paying Agent shall be responsible
for selection or use of such CUSIP numbers, (ii) no representation is made as to
the correctness of such CUSIP numbers either as printed on the Securities or as
contained in any notice of a redemption and (iii) reliance may be placed only on
the other identification numbers printed on the Securities, and any such
redemption shall not be affected by any defect in or omission of such numbers.
ARTICLE 3
Redemption
Section 3.01. Notices to Trustee. If the Company elects to redeem
------------------
Securities pursuant to paragraph 5 of the Securities, it shall notify the
Trustee in writing of the redemption date and the principal amount at maturity
of Securities to be redeemed.
The Company shall give each notice to the Trustee provided for in this
Section 3.01 at least 60 days before the redemption date unless the Trustee
consents to a shorter period. Such notice shall be accompanied by an Officers'
Certificate (which Officers' Certificate shall comply with the requirements of
Section 14.04(1) and 14.05) and an Opinion of Counsel (which Opinion of Counsel
shall comply with the requirements of Section 14.04(2) and 14.05) from the
Company to the effect that such redemption will comply with the conditions
herein. If
-32-
fewer than all the Securities are to be redeemed, the record date relating to
such redemption shall be selected by the Company and given to the Trustee, which
record date shall be not fewer than 15 days after the date of notice to the
Trustee. Any such notice may be canceled at any time prior to notice of such
redemption being mailed to any Holder and shall thereby be void and of no
effect.
Section 3.02. Selection of Securities To Be Redeemed. If fewer than
--------------------------------------
all the Securities are to be redeemed, the Trustee shall select the Securities
to be redeemed pro rata or by lot or by a method that complies with applicable
legal and securities exchange requirements, if any, and that the Trustee in its
sole discretion shall deem to be fair and appropriate and in accordance with
methods generally used at the time of selection by fiduciaries in similar
circumstances; provided that the Trustee shall select for redemption a pro rata
portion of each Tranche of Securities then outstanding. The Trustee shall make
the selection from outstanding Securities not previously called for redemption.
The Trustee may select for redemption portions of the principal amount at
maturity of Securities that have denominations larger than $1,000. Securities
and portions thereof the Trustee selects shall be in amounts of $1,000 of
principal amount at maturity or a whole multiple of $1,000 thereof. Provisions
of this Indenture that apply to Securities called for redemption also apply to
portions of Securities called for redemption. The Trustee shall notify the
Company promptly of the Securities or portions of Securities to be redeemed. For
greater certainty, all Tranches of Securities issued pursuant to this Indenture
shall be treated together for purposes of this Article 3.
Section 3.03. Notice of Redemption. At least 30 days but not more than
--------------------
60 days before a date for redemption of Securities, the Company shall mail a
notice of redemption by first-class mail to each Holder of Securities to be
redeemed at such Holder's registered address.
The notice shall identify the Securities to be redeemed and shall
state:
(1) the redemption date;
(2) the redemption price and the amount of accrued interest to the
redemption date;
(3) the name and address of the Paying Agent;
(4) that Securities called for redemption must be surrendered to the
Paying Agent to collect the redemption price;
(5) if fewer than all the outstanding Securities are to be redeemed,
the certificate numbers of certificated securities and principal amounts at
maturity of the particular Securities to be redeemed;
(6) that, unless the Company defaults in making such redemption
payment or the Paying Agent is prohibited from making such payment pursuant
to the terms of this Indenture, interest on Securities (or portion thereof)
called for redemption ceases to accrue on and after the redemption date;
(7) the CUSIP number, if any, printed on the Securities being
redeemed; and
-33-
(8) that no representation is made as to the correctness or accuracy
of the CUSIP number, if any, listed in such notice or printed on the
Securities.
At the Company's written request, the Trustee shall give the notice of
redemption in the Company's name and at the Company's expense. In such event,
the Company shall provide the Trustee with the information required by this
Section.
Section 3.04. Effect of Notice of Redemption. Once notice of
------------------------------
redemption is mailed, Securities called for redemption become due and payable on
the redemption date and at the redemption price stated in the notice. Upon
surrender to the Paying Agent, such Securities shall be paid at the redemption
price stated in the notice, plus accrued interest and liquidated damages, if
any, to the redemption date; provided, however, that if the redemption date is
-------- -------
after a regular record date and on or prior to the interest payment date, the
accrued interest shall be payable to the Securityholder of the redeemed
Securities registered on the relevant record date. Failure to give notice or any
defect in the notice to any Holder shall not affect the validity of the notice
to any other Holder.
Section 3.05. Deposit of Redemption Price. Prior to 10:00 a.m. on the
---------------------------
redemption date, the Company shall deposit with the Paying Agent (or, if the
Company or a Subsidiary is the Paying Agent, shall segregate and hold in trust)
money sufficient to pay the redemption price of and accrued interest and
liquidated damages (if any) on all Securities to be redeemed on that date other
than Securities or portions of Securities called for redemption that have been
delivered by the Company to the Trustee for cancellation. On and after the
redemption date, interest will cease to accrue on Securities or portions thereof
called for redemption so long as the Company has deposited with the Paying Agent
funds sufficient to pay the principal of, plus accrued and unpaid interest and
liquidated damages (if any) on, the Securities to be redeemed.
Section 3.06. Securities Redeemed in Part. Upon surrender of a
---------------------------
Security that is redeemed in part, the Company shall execute and the Trustee
shall authenticate for the Holder (at the Company's expense) a new Security
equal in principal amount at maturity to the unredeemed portion of the Security
surrendered.
ARTICLE 4
Covenants
Section 4.01. Payment of Securities. The Company shall promptly pay
---------------------
the principal of and interest on the Securities on the dates and in the manner
provided in the Securities and in this Indenture. Principal and interest shall
be considered paid on the date due if on such date the Trustee or the Paying
Agent holds in accordance with this Indenture money sufficient to pay all
principal and interest then due and the Trustee or the Paying Agent, as the case
may be, is not prohibited from paying such money to the Securityholders on that
date pursuant to the terms of this Indenture.
-34-
The Company shall pay interest on overdue principal at the rate
specified therefor in the Securities, and it shall pay interest on overdue
installments of interest at the same rate to the extent lawful.
Section 4.02. Provision of Financial Information.
----------------------------------
(a) Whether or not required by the rules and regulations of the
Commission, so long as any Securities are outstanding, the Company shall furnish
to the holders of Securities:
(1) all quarterly and annual financial information that would be
required to be contained in a filing with the Commission on Forms 10-Q and
10-K if the Company were required to file such forms, including a section
entitled "Management's Discussion and Analysis of Financial Condition and
Results of Operations" that describes the financial condition and results
of operations of the Company and its consolidated Subsidiaries and, with
respect to annual information only, a report thereon by the Company's
certified independent accountants; and
(2) all current reports that would be required to be filed with the
Commission on Form 8-K if the Company were required to file such reports,
in each case within the time period specified in the Commission's rules and
regulations.
(b) Following the consummation of the Exchange Offer contemplated by
the Exchange and Registration Rights Agreement, whether or not required by the
rules and regulations of the Commission, the Company shall file a copy of all
such information and reports specified in Sections 4.02(a)(1) and 4.02(a)(2)
with the Commission for public availability within the time periods specified in
the Commission's rules and regulations (unless the Commission will not accept
such a filing) and make such information available to prospective investors upon
request. In addition, the Company shall, for so long as any Securities remain
outstanding, furnish to the holders of Securities, upon request, the information
required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.
The Company shall also comply with Section 314(a) of the TIA.
Section 4.03. Limitation on Incurrence of Indebtedness.
----------------------------------------
(a) The Company shall not, and shall not cause or permit any
Restricted Subsidiary to, directly or indirectly, Incur any Indebtedness
(including Acquired Indebtedness), except:
(1) Indebtedness of the Company or any Subsidiary Guarantor if,
immediately after giving effect to the Incurrence of such Indebtedness and
the receipt and application of the net proceeds therefrom (including,
without limitation, the application or use of the net proceeds therefrom to
repay Indebtedness, consummate an Asset Acquisition or make any Restricted
Payment):
(a) the ratio of (x) Total Consolidated Indebtedness to (y)
Annualized Pro Forma Consolidated Operating Cash Flow would be less
than: 8.0 to 1.0 if the Indebtedness is to be Incurred prior to April
15, 2006; or 7.0 to 1.0 if the Indebtedness is to be Incurred on or
after April 15, 2006; or
-35-
(b) in the case of any Incurrence of Indebtedness prior to April
15, 2006 only, Total Consolidated Indebtedness would be equal to or
less than 75% of Total Invested Capital of the Company;
(2) Indebtedness of TeleCorp Wireless and its Restricted Subsidiaries,
if immediately after giving effect to the Incurrence of such Indebtedness
and the receipt and application of the net proceeds therefrom (including,
without limitation, the application or use of the net proceeds therefrom to
repay Indebtedness, consummate an Asset Acquisition or make any Restricted
Payment):
(a) the ratio of (x) Total Consolidated Indebtedness of TeleCorp
Wireless and its Restricted Subsidiaries to (y) Annualized Pro Forma
Consolidated Operating Cash Flow of TeleCorp Wireless and its
Restricted Subsidiaries would be less than: 8.0 to 1.0 if the
Indebtedness is to be Incurred prior to April 1, 2005; or 6.5 to 1.0
if the Indebtedness is to be Incurred on or after April 1, 2005; or
(b) in the case of any Incurrence of Indebtedness prior to April
1, 2005 only, Total Consolidated Indebtedness would be equal to or
less than 75% of Total Invested Capital of TeleCorp Wireless;
(3) Indebtedness of Tritel and its Restricted Subsidiaries, if
immediately after giving effect to the Incurrence of such Indebtedness and
the receipt and application of the net proceeds therefrom (including,
without limitation, the application or use of the net proceeds therefrom to
repay Indebtedness, consummate an Asset Acquisition or make any Restricted
Payment):
(a) the ratio of (x) Total Consolidated Indebtedness of Tritel
and its Restricted Subsidiaries to (y) Annualized Pro Forma
Consolidated Operating Cash Flow of Tritel and its Restricted
Subsidiaries would be less than: 8.0 to 1.0 if the Indebtedness is to
be Incurred prior to June 30, 2005; or 6.5 to 1.0 if the Indebtedness
is to be Incurred on or after June 30, 2005; or
(b) in the case of any Incurrence of Indebtedness prior to June
30, 2005 only, Total Consolidated Indebtedness of Tritel and its
Restricted Subsidiaries would be equal to or less than 75% of Total
Invested Capital of Tritel;
(4) Bank Indebtedness of
(a) the Company and its Restricted Subsidiaries (excluding for
this purpose TeleCorp Wireless and Tritel and their respective
Subsidiaries);
(b) TeleCorp Wireless and its Restricted Subsidiaries; and
(c) Tritel and its Restricted Subsidiaries,
-36-
respectively, in each case, in an aggregate principal amount not to exceed
$1,000,000,000 at any time outstanding;
(5) Purchase Money Indebtedness of the Company or any of its
Restricted Subsidiaries;
(6) Indebtedness owed by the Company to any Restricted Subsidiary or
Indebtedness owed by a Restricted Subsidiary to the Company or another
Restricted Subsidiary; provided, however, that, upon either (a) the
-------- -------
transfer or other disposition by such Restricted Subsidiary or the Company
of any Indebtedness so permitted under this clause (4) to a Person other
than the Company or another Restricted Subsidiary or (b) the issuance
(other than of directors' qualifying shares), sale, transfer or other
disposition of shares of Capital Stock or other ownership interests
(including by consolidation or merger) of such Restricted Subsidiary to a
Person other than the Company or another such Restricted Subsidiary, the
exception provided by this clause (4) shall no longer be applicable to such
Indebtedness and such Indebtedness shall be deemed to have been Incurred at
the time of any such issuance, sale, transfer or other disposition, as the
case may be;
(7) Indebtedness of the Company or any Restricted Subsidiary under any
Hedging Agreement to the extent entered into to protect the Company or such
Restricted Subsidiary from fluctuations in interest rates on any other
Indebtedness permitted under this Indenture (including the Securities),
currency exchange rates or commodity prices and not for speculative
purposes;
(8) Refinancing Indebtedness Incurred to Refinance any Indebtedness
Incurred under the prior clause (1), (2), (3) or (5) above, or (15) below,
the Securities, any Subsidiary Guarantees, Indebtedness existing on the
date of this Indenture, or any Refinancing Indebtedness in respect of
Refinancing Indebtedness Incurred pursuant to this clause (8);
(9) Indebtedness of the Company under the Securities and Indebtedness
of the Subsidiary Guarantors under the Subsidiary Guarantees, in each case
Incurred in accordance with this Indenture; provided that the maximum
principal amount at maturity of Securities issued hereunder in one or more
Tranches shall not exceed $750 million.
(10) Capital Lease Obligations of
(a) the Company and its Restricted Subsidiaries (excluding for
this purpose TeleCorp Wireless and Tritel and their respective
Subsidiaries);
(b) TeleCorp Wireless and its Restricted Subsidiaries; and
(c) Tritel and its Restricted Subsidiaries;
(d) respectively, in each case, in an aggregate principal amount
not in excess of the greater of $50,000,000 or 5.0% of Total Assets at
any time outstanding;
-37-
(11) FCC Debt assumed in connection with any acquisition after the
date of this Indenture;
(12) Indebtedness incurred in connection with the acquisition relating
to Airadigm not in excess of $110,000,000 at any time outstanding;
(13) Indebtedness of the Company or any Restricted Subsidiary
consisting of a guarantee of Indebtedness of the Company or a Restricted
Subsidiary that was permitted to be Incurred by another provision of this
Section 4.03;
(14) Indebtedness of the Company or any Restricted Subsidiary in
respect of statutory obligations, performance, surety or appeal bonds or
other obligations of a like nature Incurred in the ordinary course of
business;
(15) Indebtedness of a Restricted Subsidiary existing at the time such
Restricted Subsidiary was acquired by the Company (other than Indebtedness
Incurred in connection with, or in contemplation of, the transaction or
series of related transactions pursuant to which such Restricted Subsidiary
was acquired by the Company); provided, however, that on the date such
Restricted Subsidiary is acquired by the Company, the Company would have
been able to Incur $1.00 of additional Indebtedness pursuant to clause (1)
above after giving effect to the Incurrence of such Indebtedness pursuant
to this clause (15) and the acquisition of such Restricted Subsidiary; and
(16) Indebtedness of
(a) the Company and its Restricted Subsidiaries (excluding for
this purpose TeleCorp Wireless and Tritel and their respective
Subsidiaries);
(b) TeleCorp Wireless and its Restricted Subsidiaries; and
(c) Tritel and its Restricted Subsidiaries;
respectively, in each case, not otherwise permitted to be Incurred pursuant
to clauses (1) through (15) above which, together with any other
outstanding Indebtedness Incurred pursuant to this clause (16),
respectively, in each case, has an aggregate principal amount not in excess
of $100,000,000 at any time outstanding;
provided, however, that upon a merger or consolidation of any or all
-------- -------
of the Company, TeleCorp Wireless and Tritel, the limits set forth in clauses
(2), (3), (4), (10) and (16), respectively, for the Surviving Entity shall be
equal to the aggregate of the applicable limits for the consolidated or merged
entities. Without limiting the generality of the foregoing, such Surviving
Entity and its Restricted Subsidiaries shall be permitted to incur Bank
Indebtedness in an aggregate principal amount equal to the sum of the applicable
Bank Indebtedness for the consolidated or merged entities.
(b) Indebtedness of a Person existing at the time such Person becomes
a Restricted Subsidiary or which is secured by a Lien on an asset acquired by
the Company or a Restricted Subsidiary (whether or not such Indebtedness is
assumed by the acquiring person)
-38-
shall be deemed Incurred at the time the Person becomes a Restricted Subsidiary
or at the time of the asset acquisition, as the case may be.
(c) For purposes of determining compliance with this Section 4.03:
(1) in the event that an item of Indebtedness meets the criteria of
more than one of the categories of Indebtedness permitted pursuant to
clauses (1) through (14) above, the Company shall, in its sole discretion,
be permitted to classify such item of Indebtedness in any manner that
complies with this Section 4.03 and may from time to time reclassify such
items of Indebtedness in any manner that would comply with this Section
4.03 at the time of such reclassification;
(2) Indebtedness permitted by this Section 4.03 need not be permitted
solely by reference to one provision permitting such Indebtedness but may
be permitted in part by one such provision and in part by one or more other
provisions of this Section 4.03 permitting such Indebtedness;
(3) in the event that Indebtedness meets the criteria of more than one
of the types of Indebtedness described in this Section 4.03, the Company,
in its sole discretion, shall classify such Indebtedness and only be
required to include the amount of such Indebtedness in one of such clauses;
and
(4) accrual of interest (including interest paid-in-kind) and the
accretion of accreted value shall not be deemed to be an Incurrence of
Indebtedness for purposes of this Section 4.03.
(d) Notwithstanding any other provision of this Section 4.03:
(1) the maximum amount of Indebtedness that the Company or any
Restricted Subsidiary may Incur pursuant to this Section 4.03 shall not be
deemed to be exceeded solely as a result of fluctuations in the exchange
rates of currencies; and
(2) Indebtedness Incurred pursuant to any of the Credit Agreements
prior to or on the date of this Indenture shall be treated as Incurred
pursuant to clause (2) of paragraph (a) of this Section 4.03.
Section 4.04. Limitation on Restricted Payments.
---------------------------------
(a) The Company shall not, and shall not cause or permit any
Restricted Subsidiary to, directly or indirectly, on or prior to June 30, 2004;
(1) declare or pay any dividend, or make any distribution of any kind
or character (whether in cash, property or securities), in respect of any
class of Capital Stock of the Company, excluding any dividends or
distributions payable solely in shares of Qualified Stock of the Company or
in options, warrants or other rights to acquire Qualified Stock of the
Company;
-39-
(2) purchase, redeem or otherwise acquire or retire for value any
shares of Capital Stock of the Company, any options, warrants or rights to
purchase or acquire such shares or any securities convertible or
exchangeable into such shares (other than any such shares of Capital Stock,
options, warrants, rights or securities that are owned by the Company or a
Restricted Subsidiary);
(3) make any Investment (other than a Permitted Investment) in any
Person other than the Company, a Restricted Subsidiary or, subject to
Section 4.15, Qualified Joint Ventures; or
(4) redeem, defease, repurchase, retire or otherwise acquire or retire
for value, prior to its scheduled maturity, repayment or any sinking fund
payment, Subordinated Indebtedness,
each of the transactions described in clauses (1) through (4) (other than any
exception to any such clause) being a "Restricted Payment"; and at any time
after June 30, 2004, the Company shall not, and shall not cause or permit any
Restricted Subsidiary to, directly or indirectly, make a Restricted Payment if,
at the time thereof:
(A) Default or an Event of Default shall have occurred and be
continuing at the time of or after giving effect to such Restricted
Payment;
(B) immediately after giving effect to such Restricted Payment, the
Company could not Incur at least $1.00 of additional Indebtedness pursuant
to clause (1) of Section 4.03; and
(C) immediately upon giving effect to such Restricted Payment, the
aggregate amount of all Restricted Payments declared or made on or after
the date of this Indenture (including any Designation Amount) exceeds the
sum (without duplication) of:
(1) the amount of (x) the Consolidated Cash Flow of the Company
after June 30, 2004, through the end of the latest full fiscal quarter
for which consolidated financial statements of the Company are
available preceding the date of such Restricted Payment (treated as a
single accounting period), less (y) 150% of the cumulative
Consolidated Interest Expense of the Company after June 30, 2004,
through the end of the latest full fiscal quarter for which
consolidated financial statements of the Company are available
preceding the date of such Restricted Payment (treated as a single
accounting period); plus
(2) the aggregate net cash proceeds received by the Company as a
capital contribution in respect of Qualified Stock or from the
proceeds of a sale of Qualified Stock made after the date of this
Indenture (excluding in each case (x) the proceeds from a sale of
Qualified Stock to a Restricted Subsidiary and (y) the proceeds from a
sale of Qualified Stock to an employee stock ownership plan or other
trust established by the Company or any of its Subsidiaries); plus
(3) the aggregate net cash proceeds received by the Company or
any Restricted Subsidiary from the sale, disposition or repayment
(other than to the
-40-
Company or a Restricted Subsidiary) of any Investment made after the
date of this Indenture and constituting a Restricted Payment in an
amount equal to the lesser of (x) the return of capital with respect
to such Investment and (y) the initial amount of such Investment, in
either case, less the cost of disposition of such Investment; plus
(4) an amount equal to the consolidated Net Investment on the
date of Revocation made by the Company and/or any Restricted
Subsidiary in any Subsidiary of the Company that has been designated
as an Unrestricted Subsidiary after the date of this Indenture upon
its redesignation as a Restricted Subsidiary in accordance with
Section 4.13.
(b) For purposes of:
(1) the preceding clause (a)(C)(2), the value of the aggregate net
cash proceeds received by the Company from, or as a capital contribution in
connection with, the issuance of Qualified Stock either upon the conversion
of convertible Indebtedness of the Company or any of its Restricted
Subsidiaries or in exchange for outstanding Indebtedness of the Company or
any of its Restricted Subsidiaries or upon the exercise of options,
warrants or rights shall be the net cash proceeds received by the Company
or any Restricted Subsidiary upon the issuance of such Indebtedness,
options, warrants or rights plus the incremental amount received by the
Company or any Restricted Subsidiary upon the conversion, exchange or
exercise thereof;
(2) the preceding clause (a)(C)(4), the value of the consolidated Net
Investment on the date of Revocation shall be equal to the Fair Market
Value of the aggregate amount of the Company's and/or any Restricted
Subsidiary's Investments in such Subsidiary of the Company on the
applicable date of Designation; and
(3) determining the amount expended for Restricted Payments, cash
distributed shall be valued at the face amount thereof and property other
than cash shall be valued at its Fair Market Value on the date such
Restricted Payment is made by the Company or a Restricted Subsidiary, as
the case may be.
(c) The provisions of this Section 4.04 shall not prohibit:
(1) the payment of any dividend or distribution within 60 days after
the date of declaration thereof, if at such date of declaration such
payment would comply with the provisions of this Indenture;
(2) so long as no Default or Event of Default shall have occurred and
be continuing, the purchase, redemption, retirement or other acquisition of
any Capital Stock of the Company out of the net cash proceeds of the
substantially concurrent capital contribution to the Company in connection
with Qualified Stock or out of the net cash proceeds received by the
Company from the substantially concurrent issue or sale (other than to a
Restricted Subsidiary or to an employee stock ownership plan or other trust
established by the Company or any of its Subsidiaries) of Qualified Stock;
provided that any such net cash proceeds shall be excluded from clause
--------
(a)(C)(2);
-41-
(3) so long as no Default or Event of Default shall have occurred and
be continuing, the purchase, redemption, retirement, defeasance or other
acquisition of Subordinated Indebtedness of the Company made by exchange
for or conversion into, or out of the net cash proceeds received by the
Company, or out of a capital contribution to the Company in connection with
a substantially concurrent issue and sale (other than to a Restricted
Subsidiary) of, (a) Qualified Stock (provided that (x) any such net cash
proceeds are excluded from clause (a)(C)(2), and (y) such proceeds, if from
a sale other than a Public Sale, are not applied to optionally redeem
Securities on or prior to June 30, 2004) or (b) other Subordinated
Indebtedness of the Company that has an Average Life equal to or greater
than the Average Life of the Subordinated Indebtedness being purchased,
redeemed, retired, defeased or otherwise acquired and that is subordinated
in right of payment to the Securities at least to the same extent as the
Subordinated Indebtedness being purchased, redeemed, retired, defeased or
otherwise acquired;
(4) so long as no Default or Event of Default shall have occurred and
be continuing, the making of a direct or indirect Investment constituting a
Restricted Payment in an amount not to exceed the amount of the net cash
proceeds of capital contributions in respect of Qualified Stock or from the
issue or sale (other than to a Restricted Subsidiary) of Qualified Stock of
the Company, in each case made no more than one year prior to the date of
such investment; provided that (a) any such net cash proceeds are excluded
from clause (a)(C)(2), and (b) such proceeds, if from a sale other than a
Public Sale, are not applied to optionally redeem Securities on or prior to
June 30, 2004;
(5) so long as no Default or Event of Default has occurred and is
continuing, the repurchase, redemption, acquisition or retirement for value
of any Capital Stock of the Company held by any member of management or
former member of management of the Company or any of its Subsidiaries
pursuant to any management equity subscription agreement, stock option
agreement, restricted stock agreement, put agreement or other similar
agreement; provided that (a) the aggregate amount of such dividends or
distributions shall not exceed $10,000,000 in any twelve-month period, (b)
any unused amount in any twelve-month period may be carried forward to one
or more future twelve-month periods and (c) the aggregate of all unused
amounts that may be carried forward to any future twelve-month period shall
not exceed $20,000,000.
(6) payments or distributions to dissenting stockholders pursuant to
applicable law in connection with a consolidation, merger or transfer of
assets that complies with the provisions of this Indenture applicable to
mergers, consolidations and transfers of all or substantially all of the
property and assets of the Company;
(7) the repurchase, redemption or other acquisition or retirement for
value of the Company's Capital Stock to the extent necessary in the good
faith judgment of the board of directors of the Company evidenced by a
board resolution delivered to the Trustee to prevent the loss or secure the
renewal or reinstatement of any material license or franchise held by the
Company or any Restricted Subsidiary from any government agency; provided
that no Capital Stock shall be repurchased, redeemed or otherwise acquired
from any Permitted Holder pursuant to this clause (7);
-42-
(8) the repurchase of Indebtedness subordinated to the Securities at a
purchase price not greater than 101% of the principal amount thereof (plus
accrued and unpaid interest) pursuant to a mandatory offer to repurchase
made upon the occurrence of a Change of Control; provided that the Company
first make an Offer to Purchase the Securities (and repurchase all tendered
notes) under this Indenture pursuant to the provisions of Section 4.08 of
this Indenture; or
(9) loans to the Management Stockholders to fund the purchase of up to
10,490 shares of the Company's class E common stock.
(d) Restricted Payments made pursuant to clauses (1), (5), (6) and (8)
of paragraph (c) shall be included in making the determination of available
amounts under clause (C) of paragraph (a) and Restricted Payments made pursuant
to clauses (2), (3), (7) and (9) of paragraph (c) shall not be included in
making the determination of available amounts under clause (C) of paragraph (a).
Section 4.05. Limitation on Restrictions Affecting Restricted
-----------------------------------------------
Subsidiaries. The Company shall not, and shall not cause or permit any
- ------------
Restricted Subsidiary to, directly or indirectly, create or otherwise cause or
suffer to exist any consensual encumbrances or restrictions of any kind on the
ability of any Restricted Subsidiary to:
(1) pay, directly or indirectly, dividends, in cash or otherwise, or
make any other distributions in respect of its Capital Stock or pay any
Indebtedness or other obligation owed to the Company or any other
Restricted Subsidiary;
(2) make any Investment in the Company or any other Restricted
Subsidiary; or
(3) transfer any of its property or assets to the Company or any other
Restricted Subsidiary,
except for such encumbrances or restrictions existing under or by reason of:
(A) any agreement in effect on the date of this Indenture as any
such agreement is in effect on such date;
(B) any agreement relating to any Indebtedness Incurred by such
Restricted Subsidiary prior to the date on which such Restricted
Subsidiary was acquired by the Company and outstanding on such date
and not Incurred in anticipation or contemplation of becoming a
Restricted Subsidiary; provided, however, that such encumbrance or
restriction shall not apply to any property or assets of the Company
or any Restricted Subsidiary other than such Restricted Subsidiary;
(C) customary provisions contained in an agreement which has been
entered into for the sale or disposition of all or substantially all
of the Capital Stock or assets of a Restricted Subsidiary;
-43-
provided, however, that such encumbrance or restriction is applicable only to
- -------- -------
such Restricted Subsidiary or its property and assets;
(D) any agreement effecting a Refinancing or amendment of
Indebtedness Incurred pursuant to any agreement referred to in clause
(A) or (B) above; provided, however, that the provisions contained in
-------- -------
such Refinancing or amendment agreement relating to such encumbrance
or restriction are no more restrictive in any material respect than
the provisions contained in the agreement that is the subject thereof
in the reasonable judgment of the board of directors of the Company;
(E) this Indenture;
(F) applicable law or any applicable rule, regulation or order;
(G) customary provisions restricting subletting or assignment of
any lease governing any leasehold interest of any Restricted
Subsidiary;
(H) purchase money obligations for property acquired in the
ordinary course of business that impose restrictions of the type
referred to in clause (3) of this Section 4.05;
(I) restrictions of the type referred to in clause (3) of this
Section 4.05 contained in security agreements securing Indebtedness of
a Restricted Subsidiary to the extent that such Liens restrict the
transfer of property subject to such agreements; and
(J) any agreement entered into by TeleCorp Wireless or Tritel and
their respective Restricted Subsidiaries after the date of this
Indenture which in the reasonable judgment of the board of directors
of the Company does not create a material likelihood that the Company
will not be able to pay when due all scheduled payments of principal
and interest at the times and in the manner contemplated by the
Indenture and the Notes.
Section 4.06. Limitation on Certain Asset Dispositions.
----------------------------------------
(a) The Company shall not, and shall not cause or permit any
Restricted Subsidiary (which for purposes of this covenant does not include
TeleCorp Wireless or Tritel or their respective Subsidiaries) to, directly or
indirectly, make any Asset Disposition unless:
(1) the Company or such Restricted Subsidiary, as the case may be,
receives consideration for such Asset Disposition at least equal to the
Fair Market Value of the assets sold or disposed of as determined by the
board of directors of the Company in good faith and evidenced by a
resolution of such board of directors filed with the Trustee;
-44-
(2) other than in the case of a Permitted Asset Swap, not less than
75% of the consideration received by the Company or such Restricted
Subsidiary from the disposition consists of:
(A) cash or Cash Equivalents;
(B) the assumption of Indebtedness (other than non-recourse
Indebtedness or any Subordinated Indebtedness) of the Company or such
Restricted Subsidiary or other obligations relating to such assets
(accompanied by an irrevocable and unconditional release of the
Company or such Restricted Subsidiary from all liability on the
Indebtedness or other obligations assumed); or
(C) notes, other obligations or common stock received by the
Company or such Restricted Subsidiary from such transferee that are
converted by the Company or such Restricted Subsidiary into cash or
Cash Equivalents concurrently with the receipt of such notes or other
obligations (to the extent of the cash actually received by the
Company); and
(3) all Net Available Proceeds, less any amounts invested within 365
days of such Asset Disposition to acquire all or substantially all of the
assets of, or a majority of the Voting Stock of, an entity primarily
engaged in a business carried on by TeleCorp Wireless or Tritel or their
respective Subsidiaries, to make a capital expenditure or to acquire other
long-term assets that are used or useful in a business carried on by
TeleCorp Wireless or Tritel or their respective Subsidiaries, are applied,
on or prior to the 365th day after such Asset Disposition, unless and to
the extent that the Company shall determine to make an Offer to Purchase,
to the permanent reduction and prepayment of any Senior Indebtedness of the
Company then outstanding (including a permanent reduction of the
commitments in respect thereof).
(b) Any Net Available Proceeds from any Asset Disposition which is
subject to the immediately preceding sentence that are not applied as
provided in the immediately preceding sentence shall be used promptly after
the expiration of the 365th day after such Asset Disposition (or earlier if
the Company so elects) to make an Offer to Purchase outstanding Securities
at a purchase price in cash equal to (A) 100% of the Accreted Value on the
Purchase Date, if such Purchase Date is after April 15, 2006, and (B) 100%
of the principal amount at maturity plus accrued and unpaid interest to the
Purchase Date, if such Purchase Date is after April 15. 2006, provided,
--------
however, that if the Company elects (or is required by the terms of any
-------
other Senior Subordinated Indebtedness) an offer may be made ratably to
purchase the Securities and such other Senior Subordinated Indebtedness.
Notwithstanding the foregoing, the Company may defer making any Offer to
Purchase outstanding Securities (and any offer to purchase other Senior
Subordinated Indebtedness ratably)
-45-
until there are aggregate unutilized Net Available Proceeds from Asset
Dispositions otherwise subject to the two immediately preceding sentences
equal to or in excess of $15,000,000 (at which time the entire unutilized
Net Available Proceeds from Asset Dispositions otherwise subject to the two
immediately preceding sentences, and not just the amount in excess of
$15,000,000, shall be applied as required pursuant to this paragraph). Any
remaining Net Available Proceeds following the completion of the required
Offer to Purchase (and any offer to purchase other Senior Subordinated
Indebtedness ratably) may be used by the Company for any other purpose
(subject to the other provisions of this Indenture), and the amount of Net
Available Proceeds then required to be otherwise applied in accordance with
this Section 4.06 shall be reset to zero. These provisions shall not apply
to a transaction consummated in compliance with the provisions of Section
5.01.
(c) Pending application as set forth above, the Net Available Proceeds
of any Asset Disposition may be invested in cash or Cash Equivalents or
used to reduce temporarily Indebtedness outstanding under any revolving
credit agreement to which the Company is a party and pursuant to which it
has Incurred Indebtedness.
(d) The Company shall comply, to the extent applicable, with the
requirements of Section 14(e) of the Exchange Act and any other securities
laws or regulations in connection with the repurchase of Securities
pursuant to this Section 4.06. To the extent that the provisions of any
securities laws or regulations conflict with provisions of this Section
4.06, the Company shall be required to comply with the applicable
securities laws and regulations and shall not be deemed to have breached
its obligations under this Section 4.06 by virtue thereof.
Section 4.07. Limitation on Transactions with Affiliates.
------------------------------------------
(a) The Company shall not, and shall not cause or permit any
Restricted Subsidiary to, directly or indirectly, conduct any business or
enter into, renew or extend any transaction with any of their respective
Affiliates, including, without limitation, the purchase, sale, lease or
exchange of property, the rendering of any service or the making of any
guarantee, loan, advance or Investment, either directly or indirectly,
unless the terms of such transaction are at least as favorable as the terms
that could be obtained at such time by the Company or such Restricted
Subsidiary, as the case may be, in a comparable transaction made on an
arm's-length basis with a Person that is not such an Affiliate; provided,
--------
however, that:
-------
(1) in any transaction involving aggregate consideration in excess of
$10,000,000, the Company shall deliver an Officers' Certificate to the
Trustee stating that a majority of the disinterested directors of the board
of directors of the Company or such Restricted Subsidiary, as the case may
be, have determined, in their good faith judgment, that the terms of such
transaction are at least as favorable as the terms that could be obtained
by the Company or such Restricted Subsidiary, as the case may be, in a
comparable transaction made on an arms'-length basis between unaffiliated
parties; and
(2) if the aggregate consideration is in excess of $25,000,000, the
Company shall also deliver to the Trustee, prior to the consummation of the
transaction, the favorable written opinion of a nationally recognized
accounting, appraisal or investment banking firm as to the fairness of the
transaction to the holders of the Securities, from a financial point of
view; provided, however, that the requirements set forth in this clause (2)
-------- -------
shall not apply in the case of exchanges of licenses and related assets
between the Company or any of their Subsidiaries and AT&T Corp. or AT&T
Wireless Services, Inc. and any of their Subsidiaries so long as the Fair
Market Value of licenses and related assets exchanged by the Company or any
of its Subsidiaries shall not exceed $50,000,000.
-46-
(b) Notwithstanding the foregoing, the restrictions set forth in this
Section 4.07 shall not apply to:
(1) transactions between or among the Company and/or any Restricted
Subsidiaries;
(2) any Restricted Payment or Permitted Investment permitted by Section
4.04;
(3) directors' fees, indemnification and similar arrangements, officers'
indemnification, employment agreements, employee stock option or employee
benefit plans and employee salaries and bonuses paid or created in the ordinary
course of business;
(4) any transactions pursuant to agreements existing on the date of this
Indenture and described in the Offering Memorandum on terms substantially
consistent with those set forth in the Offering Memorandum;
(5) transactions with AT&T Corp. or AT&T Wireless Services, Inc. or any of
their Affiliates relating to the marketing or provision of telecommunication
services or related hardware, software or equipment on terms that are no less
favorable (when taken as a whole) to the Company or such Restricted Subsidiary,
as applicable, than those available from unaffiliated third parties;
(6) transactions involving the leasing or sharing or other use by the
Company or any Restricted Subsidiary of communications network facilities
(including, without limitation, cable or fiber lines, equipment or transmission
capacity) of any Affiliate of the Company (such Affiliate being a "Related
Party") on terms that are no less favorable (when taken as a whole) to the
Company or such Restricted Subsidiary, as applicable, than those available from
such Related Party to unaffiliated third parties;
(7) transactions involving the provision of telecommunication services by a
Related Party in the ordinary course of its business to the Company or any
Restricted Subsidiary, or by the Company or any Restricted Subsidiary to a
Related Party, on terms that are no less favorable (when taken as a whole) to
the Company or such Restricted Subsidiary, as applicable, than those available
from such Related Party to unaffiliated third parties;
(8) any sales agency agreements pursuant to which an Affiliate has the
right to market any or all of the products or services of the Company or any of
the Restricted Subsidiaries;
(9) transactions involving the sale, transfer or other disposition of any
shares of Capital Stock of any Marketing Affiliate; provided that such Marketing
--------
Affiliate is not engaged in any activity other than the registration, holding,
maintenance or protection of trademarks and the licensing thereof; and
-47-
(10) customary commercial banking, investment banking, underwriting,
placement agent or financial advisory fees paid in connection with services
rendered to the Company and its subsidiaries in the ordinary course.
Section 4.08. Change of Control.
-----------------
(a) Upon the occurrence of a Change of Control, each holder of
Securities shall have the right to require the Company to repurchase all or any
part of such holder's Securities at a purchase price in cash equal to (1) 101%
of the Accreted Value on the Purchase Date, if such date is on or before April
15, 2006, or (2) 101% of the principal amount at maturity, if such date is after
April 15, 2006, plus accrued and unpaid interest, if any, to the Purchase Date
(subject to the right of holders of record on the relevant record date to
receive interest due on the relevant interest payment date).
(b) Within 30 days following any Change of Control, the Company shall
be required to mail a notice to each holder of Securities, with a copy to the
Trustee (the "Change of Control Offer"), stating that the Company is commencing
an Offer to Purchase all outstanding Securities at a purchase price in cash
equal to (1) 101% of the Accreted Value on the Purchase Date, if such date is on
or before April 15, 2006, or (2) 101% of the principal amount at maturity if
such date is after April 15, 2006, plus accrued and unpaid interest, if any, to
the Purchase Date (subject to the right of holders of record on the relevant
record date to receive interest due on the relevant interest payment date).
(c) The Company shall not be required to make a Change of Control
Offer upon a Change of Control if a third party makes the Change of Control
Offer in the manner, at the times and otherwise in compliance with the
requirements set forth in this Indenture applicable to a Change of Control Offer
made by the Company. The Company's obligation to make a Change of Control Offer
will be reinstated unless such third party purchases all Securities validly
tendered and not withdrawn under such Change of Control Offer in accordance with
its terms.
(d) The Company shall be required to comply, to the extent applicable,
with the requirements of Section 14(e) of the Exchange Act and any other
securities laws or regulations in connection with the repurchase of Securities
pursuant to this Section 4.08. To the extent that the provisions of any
securities laws or regulations conflict with provisions of this Section 4.08,
the Company shall be required to comply with the applicable securities laws and
regulations and shall not be deemed to have breached its obligations under this
Section 4.08 by virtue thereof.
(e) In the event that, at the time of a Change of Control, the terms
of the Bank Indebtedness restrict or prohibit the repurchase of Securities
pursuant to this Section 4.08, then, prior to the mailing of the notice to
holders of Securities as provided in the immediately following paragraph, but in
any event within 30 days following any Change of Control, the Company shall be
required to:
(1) repay in full all Bank Indebtedness; or
-48-
(2) obtain the requisite consent under the agreements governing such
Bank Indebtedness to permit the repurchase of the Securities as required by
this Section 4.08.
(f) Notwithstanding any other provisions in this Section 4.08, the
Company shall not be required to make a Change of Control Offer upon (a) any
merger with or acquisition of TeleCorp Wireless, Tritel and/or Triton by the
Company or any of its wholly-owned Affiliates or wholly-owned Subsidiaries, or
(b) any acquisition of or merger with the Company and/or its Subsidiaries by AT
&T Wireless or any of its wholly-owned Affiliates.
Section 4.09. Compliance Certificate. The Company shall deliver to the
----------------------
Trustee within 120 days after the end of each fiscal year of the Company an
Officers' Certificate stating that in the course of the performance by the
signers of their duties as Officers of the Company they would normally have
knowledge of any Default and whether or not the signers know of any Default that
occurred during such period. If they do, the certificate shall describe the
Default, its status and what action the Company is taking or proposes to take
with respect thereto. The Company also shall comply with Section 314(a)(4) of
the TIA (including the making of all representations and warranties mandated
thereby).
Section 4.10. Further Instruments and Acts. Upon request of the
----------------------------
Trustee, the Company shall execute and deliver such further instruments and do
such further acts as may be reasonably necessary or proper to carry out more
effectively the purpose of this Indenture.
Section 4.11. Future Subsidiary Guarantors. The Company shall cause
----------------------------
each Restricted Subsidiary (excluding any Foreign Subsidiary) that Incurs
Indebtedness to become a Subsidiary Guarantor, and, if applicable, execute and
deliver to the Trustee a supplemental indenture in the form set forth in Exhibit
C pursuant to which such Restricted Subsidiary will guarantee payment of the
Securities; provided that the Company shall not cause any Special Purpose
Subsidiary to become a Subsidiary Guarantor unless such Special Purpose
Subsidiary Incurs Indebtedness other than Indebtedness in respect of the Company
Credit Agreement (or any Refinancing Indebtedness Incurred to Refinance such
Indebtedness) or FCC Debt. Each Subsidiary Guarantee will be limited to an
amount not to exceed the maximum amount that can be guaranteed by that
Restricted Subsidiary without rendering the Subsidiary Guarantee, as it relates
to such Restricted Subsidiary, voidable under applicable law relating to
fraudulent conveyance or fraudulent transfer or similar laws affecting the
rights of creditors generally.
Section 4.12. [Intentionally Omitted].
-----------------------
Section 4.13. Limitation on Designations of Unrestricted Subsidiaries.
-------------------------------------------------------
(a) The Company may designate any Subsidiary of the Company (other
than an Ineligible Subsidiary) as an "Unrestricted Subsidiary" under this
Indenture (a "Designation") only if:
(1) no Default or Event of Default shall have occurred and be
continuing at the time of or after giving effect to such Designation;
(2) the Company would be permitted under this Indenture to make an
Investment at the time of Designation (assuming the effectiveness of such
Designation) in
-49-
an amount (the "Designation Amount") equal to the Fair Market Value of the
aggregate amount of its Investments in such Subsidiary on such date; and
(3) except in the case of a Subsidiary of the Company in which an
Investment is being made pursuant to, and as permitted by, paragraph (c) of
Section 4.04, the Company would be permitted to Incur $1.00 of additional
Indebtedness pursuant to clause (a)(1) of Section 4.03 at the time of
Designation (assuming the effectiveness of such Designation).
(b) In the event of any such Designation, the Company shall be deemed
to have made an Investment constituting a Restricted Payment pursuant to Section
4.04 for all purposes of this Indenture in the Designation Amount.
(c) The Company may revoke any Designation of a Subsidiary as an
Unrestricted Subsidiary (a "Revocation"), whereupon such Subsidiary shall then
constitute a Restricted Subsidiary, if no Default shall have occurred and be
continuing at the time of and after giving effect to such Revocation. In the
event of any such Revocation, the Company shall be deemed to continue to have a
permanent Investment in an Unrestricted Subsidiary constituting a Restricted
Payment pursuant Section 4.04 for all purposes under this Indenture in an amount
(if positive) equal to:
(1) the Fair Market Value of the aggregate amount of the Company's
Investments in such Subsidiary at the time of such Revocation; less
(2) the portion (proportionate to the Company's equity interest in
such Subsidiary) of the Fair Market Value of the net assets of such
Subsidiary at the time of such Revocation.
(d) All Designations and Revocations must be evidenced by a resolution
of the board of directors of the Company delivered to the Trustee
certifying compliance with the foregoing provisions.
Section 4.14. Limitation on Layered Indebtedness. The Company shall
----------------------------------
not:
(1) directly or indirectly Incur any Indebtedness that by its terms
would expressly rank senior in right of payment to the Securities and rank
subordinate in right of payment to any other Indebtedness of the Company;
or
(2) cause or permit any Subsidiary Guarantor to, and no Subsidiary
Guarantor shall, directly or indirectly, Incur any Indebtedness that by its
terms would expressly rank senior in right of payment to the Subsidiary
Guarantee of such Subsidiary Guarantor and rank subordinate in right of
payment to any other Indebtedness of such Subsidiary Guarantor;
provided that no Indebtedness shall be deemed to be subordinated solely by
- --------
virtue of being unsecured.
-50-
Section 4.15. Additional Activities. The Company shall not and shall
---------------------
not permit any Restricted Subsidiary to utilize or contribute all or any portion
of the proceeds from the Securities (as determined in the reasonable judgment of
the board of directors of the Company) to any entity or joint venture that is
not a Qualified Joint Venture.
ARTICLE 5
Successor Company
Section 5.01. Merger, Consolidation and Certain Sales of Assets.
-------------------------------------------------
(a) The Company shall not consolidate or merge with or into any
Person, or sell, assign, lease, convey or otherwise dispose of (or cause or
permit any Restricted Subsidiary to consolidate or merge with or into any
Person, or to sell, assign, lease, convey or otherwise dispose of) all or
substantially all of the Company's assets (determined on a consolidated basis
for the Company and the Restricted Subsidiaries), whether as an entirety or
substantially an entirety in one transaction or a series of related
transactions, including by way of liquidation or dissolution, to any Person
unless, in each such case:
(1) the entity formed by or surviving any such consolidation or merger
(if other than the Company or such Restricted Subsidiary, as the case may
be), or to which such sale, assignment, lease, conveyance or other
disposition shall have been made (the "Surviving Entity"), is a corporation
organized and existing under the laws of the United States, any state
thereof or the District of Columbia;
(2) the Surviving Entity assumes by supplemental indenture all of the
obligations of the Company on the Securities and under this Indenture;
(3) immediately after giving effect to such transaction and the use of
any net proceeds therefrom on a pro forma basis, the Company or the
Surviving Entity, as the case may be, could Incur at least $1.00 of
Indebtedness pursuant to clause (1) of Section 4.03; provided, however that
-------- -------
this clause (3) shall not apply in the case of a merger between or among
the Company and any of TeleCorp Wireless, Tritel or Triton;
(4) immediately after giving effect to such transaction and treating
any Indebtedness which becomes an obligation of the Company or any of its
Restricted Subsidiaries as a result of such transactions as having been
Incurred by the Company or such Restricted Subsidiary, as the case may be,
at the time of the transaction, no Default or Event of Default shall have
occurred and be continuing; and
(5) the Company delivers to the Trustee an Officers' Certificate and
an Opinion of Counsel, each stating that such merger, consolidation or sale
of assets and such supplemental indenture, if any, comply with this
Indenture.
The provisions of this paragraph (a) shall not apply to any merger of a
Restricted Subsidiary with or into the Company or a Wholly Owned Subsidiary, the
release of any Subsidiary Guarantor in accordance with the terms of its
Subsidiary Guarantee and this Indenture in connection with any
-51-
transaction complying with the provisions of Section 4.06, or any acquisition by
merger or otherwise of TeleCorp Wireless, Tritel and/or Triton by the Company or
its Wholly Owned Subsidiaries.
The Company shall not permit any Subsidiary Guarantor to consolidate or merge
with or into any Person, or sell, assign, lease, convey or otherwise dispose of
all or substantially all of such Subsidiary Guarantor's assets, whether as an
entirety or substantially an entirety in one transaction or a series of related
transactions, including by way of liquidation or dissolution, to any Person
unless, in each such case:
(1) the entity formed by or surviving any such consolidation or merger
(if other than such Subsidiary Guarantor), or to which such sale,
assignment, lease, conveyance or other disposition shall have been made, is
a corporation organized and existing under the laws of the United States,
any state thereof or the District of Columbia;
(2) such corporation assumes by supplemental indenture all of the
obligations of the Subsidiary Guarantor, if any, under its Subsidiary
Guarantee;
(3) immediately after giving effect to such transaction and treating
any Indebtedness which becomes an obligation of such Subsidiary Guarantor
as a result of such transactions as having been Incurred by such Subsidiary
Guarantor at the time of the transaction, no Default or Event of Default
shall have occurred and be continuing; and
(4) the Company delivers to the Trustee an Officers' Certificate and
an Opinion of Counsel, each stating that such merger, consolidation or sale
of assets and such supplemental indenture, if any, comply with this
Indenture.
ARTICLE 6
Defaults and Remedies
Section 6.01. Events of Default. An Event of Default occurs under this
-----------------
Indenture if:
(1) the Company defaults in any payment of interest on any Security
when due and payable, whether or not such payment shall be prohibited by
Article 10, continued for 30 days;
(2) the Company defaults in the payment of the Accreted Value or
principal of any Security when due and payable at its Stated Maturity, upon
required redemption or repurchase, upon declaration or otherwise, whether
or not such payment shall be prohibited by Article 10;
(3) the Company fails to comply with its obligations under Section
5.01;
(4) the Company fails to comply for 30 days after notice with any of
its obligations under Section 4.02, 4.03, 4.04, 4.05, 4.06, 4.07, 4.08,
4.11, 4.13, 4.14 or 4.15
-52-
(in each case, other than a failure to purchase Securities when required
under Section 4.06 or 4.08);
(5) the Company fails to comply for 60 days after notice with its
other agreements contained in this Indenture or the Securities (other than
those referred to in clause (1), (2), (3) or (4) above;
(6) the Company or any Significant Subsidiary fails to pay any
Indebtedness within any applicable grace period after final maturity or the
acceleration of any such Indebtedness by the holders thereof because of a
default if the total amount of such Indebtedness unpaid or accelerated
exceeds $15,000,000 or its foreign currency equivalent (the "cross
acceleration provision") and such failure continues for 10 days after
receipt of the notice specified below;
(7) the Company or any Significant Subsidiary pursuant to or within
the meaning of any Bankruptcy Law:
(A) commences a voluntary case;
(B) consents to the entry of an order for relief against it in an
involuntary case;
(C) consents to the appointment of a Custodian of it or for any
substantial part of its property; or
(D) makes a general assignment for the benefit of its creditors
or takes any comparable action under any foreign laws relating to
insolvency;
(8) a court of competent jurisdiction renders a final judgment or
decree (not subject to appeal) for the payment of money in excess of
$15,000,000 or its foreign currency equivalent at the time it is entered
against the Company or a Significant Subsidiary and such judgment or decree
is not discharged, waived or stayed if:
(A) an enforcement proceeding thereon is commenced by any
creditor; or
(B) such judgment or decree remains outstanding for a period of
60 days following such judgment and is not discharged, waived or
stayed (the "judgment default provision");
(9) any Subsidiary Guarantee ceases to be in full force and effect
(except as contemplated by the terms thereof) or any Subsidiary Guarantor
or Person acting by or on behalf of such Subsidiary Guarantor denies or
disaffirms such Subsidiary Guarantor's obligations under this Indenture or
any Subsidiary Guarantee and such Default continues for 10 days after
receipt of the notice specified below; or
(10) at any time prior to the occurrence of any of the Special Default
Release Conditions, the Company shall be in default of or shall breach any
of its obligations
-53-
under the Procurement Contract and as a result thereof the Procurement
Contract shall have terminated or been terminated; provided that the
--------
Company shall have been given any notice of such default or breach as
required under the Procurement Contract and any cure period thereunder
shall have expired.
The foregoing shall constitute Events of Default whatever the reason
for any such Event of Default and whether it is voluntary or involuntary or is
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.
A Default under clause (4), (5), (6) or (8) shall not constitute an
Event of Default until the Trustee or the holders of at least 25% in Accreted
Value of the outstanding Securities, voting as a single class, notify the
Company of the Default and the Company does not cure such Default within the
time specified in clauses (4), (5), (6) or (8) after receipt of such notice.
Such notice must specify the Default, demand that it be remedied and state that
such notice is a "Notice of Default".
Section 6.02. Acceleration. If an Event of Default (other than an
------------
Event of Default specified in clause (7) of Section 6.01 with respect to the
Company) occurs and is continuing, the Trustee by notice to the Company, or the
Holders of at least 25% in Accreted Value of the outstanding Securities, voting
as a single class, by notice to the Company, may declare the principal of and
accrued but unpaid interest on all the Securities to be due and payable. Upon
such a declaration, such principal and interest shall be due and payable
immediately. If an Event of Default specified in clause (7) of Section 6.01 with
respect to the Company occurs, the principal of and interest on all the
Securities shall ipso facto become and be immediately due and payable without
---- -----
any declaration or other act on the part of the Trustee or any Securityholders.
The Required Holders by notice to the Trustee may rescind an acceleration and
its consequences if the rescission would not conflict with any judgment or
decree and if all existing Events of Default have been cured or waived except
nonpayment of principal or interest that has become due solely because of
acceleration. No such rescission shall affect any subsequent Default or impair
any right consequent thereto. Prior to April 15, 2006, the portion of principal
of all Securities that is declared and otherwise due and payable pursuant to
this Section 6.02 shall be the Accreted Value of such Securities as of the date
of declaration.
Section 6.03. Other Remedies. If an Event of Default occurs and is
--------------
continuing, the Trustee may pursue any available remedy to collect the payment
of principal of or interest on the Securities or to enforce the performance of
any provision of the Securities or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any
of the Securities or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Securityholder in exercising any right or remedy
accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. No remedy is
exclusive of any other remedy. All available remedies are cumulative.
Section 6.04. Waiver of Past Defaults. The Required Holders by notice
-----------------------
to the Trustee may waive an existing Default and its consequences except (i) a
Default in the payment
-54-
of the Accreted Value of, principal amount at maturity of, or interest on a
Security or (ii) a Default arising from the failure to redeem or purchase any
Security when required pursuant to the terms of this Indenture or (iii) a
Default in respect of a provision that under Section 9.02 cannot be amended
without the consent of each Securityholder affected. When a Default is waived,
it is deemed cured, but no such waiver shall extend to any subsequent or other
Default or impair any consequent right.
Section 6.05. Control by Majority. The Required Holders may direct the
-------------------
time, method and place of conducting any proceeding for any remedy available to
the Trustee or of exercising any trust or power conferred on the Trustee.
However, the Trustee may refuse to follow any direction that conflicts with law
or this Indenture or, subject to Section 7.01, that the Trustee determines is
unduly prejudicial to the rights of other Securityholders or would involve the
Trustee in personal liability; provided, however, that the Trustee may take any
-------- -------
other action deemed proper by the Trustee that is not inconsistent with such
direction. Prior to taking any action hereunder, the Trustee shall be entitled
to indemnification satisfactory to it in its sole discretion against all losses
and expenses caused by taking or not taking such action.
Section 6.06. Limitation on Suits. Except to enforce the right to
-------------------
receive payment of principal, premium (if any) or interest when due, no
Securityholder may pursue any remedy with respect to this Indenture or the
Securities unless:
(1) the Holder gives to the Trustee written notice stating that an
Event of Default is continuing;
(2) the Holders of at least 25% in Accreted Value of the outstanding
Securities, voting as a single class, make a written request to the Trustee
to pursue the remedy;
(3) such Holder or Holders offer to the Trustee security or indemnity
reasonably satisfactory to the Trustee against any loss, liability or
expense;
(4) the Trustee does not comply with the request within 60 days after
receipt of the request and the offer of security or indemnity; and
(5) the Required Holders do not give the Trustee a direction
inconsistent with the request during such 60-day period.
A Securityholder may not use this Indenture to prejudice the rights of
another Securityholder or to obtain a preference or priority over another
Securityholder.
Section 6.07. Rights of Holders To Receive Payment. Notwithstanding
------------------------------------
any other provision of this Indenture, the right of any Holder to receive
payment of principal of and liquidated damages and interest on the Securities
held by such Holder, on or after the respective due dates expressed in the
Securities, or to bring suit for the enforcement of any such payment on or after
such respective dates, shall not be impaired or affected without the consent of
such Holder.
-55-
Section 6.08. Collection Suit by Trustee. If an Event of Default
--------------------------
specified in clause (1) or (2) of Section 6.01 occurs and is continuing, the
Trustee may recover judgment in its own name and as trustee of an express trust
against the Company for the whole amount then due and owing (together with
interest on any unpaid interest to the extent lawful) and the amounts provided
for in Section 7.07.
Section 6.09. Trustee May File Proofs of Claim. The Trustee may file
--------------------------------
such proofs of claim and other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee and the Securityholders
allowed in any judicial proceedings relative to the Company, any Subsidiary or
Subsidiary Guarantor, their creditors or their property and, unless prohibited
by law or applicable regulations, may vote on behalf of the Holders in any
election of a trustee in bankruptcy or other Person performing similar
functions, and any Custodian in any such judicial proceeding is hereby
authorized by each Holder to make payments to the Trustee and, in the event that
the Trustee shall consent to the making of such payments directly to the
Holders, to pay to the Trustee any amount due it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and its counsel, and any other amounts due the Trustee under Section 7.07.
Section 6.10. Priorities. If the Trustee collects any money or
----------
property pursuant to this Article 6, it shall pay out the money or property in
the following order:
FIRST: to the Trustee for amounts due under Section 7.07;
SECOND: to holders of Senior Indebtedness of the Company to the extent
required by Article 10;
THIRD: to Securityholders for amounts due and unpaid on the Securities
for principal and interest, ratably, and any liquidated damages without
preference or priority of any kind, according to the amounts due and payable on
the Securities for principal, any liquidated damages and interest, respectively;
and
FOURTH: to the Company.
The Trustee may fix a record date and payment date for any payment to
Securityholders pursuant to this Section. At least 15 days before such record
date, the Trustee shall mail to each Securityholder and the Company a notice
that states the record date, the payment date and amount to be paid.
Section 6.11. Undertaking for Costs. In any suit for the enforcement
---------------------
of any right or remedy under this Indenture or in any suit against the Trustee
for any action taken or omitted by it as Trustee, a court in its discretion may
require the filing by any party litigant in the suit of an undertaking to pay
the costs of the suit, and the court in its discretion may assess reasonable
costs, including reasonable attorneys' fees, against any party litigant in the
suit, having due regard to the merits and good faith of the claims or defenses
made by the party litigant. This Section 6.11 does not apply to a suit by the
Trustee, a suit by a Holder pursuant to Section 6.07 or a suit by Holders of
more than 10% in aggregate principal amount at maturity of the Securities.
-56-
Section 6.12. Waiver of Stay or Extension Laws. Neither the Company
--------------------------------
nor any Subsidiary Guarantor (to the extent it may lawfully do so) shall at any
time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any stay or extension law wherever enacted, now or at
any time hereafter in force, which may affect the covenants or the performance
of this Indenture; and the Company and each Subsidiary Guarantor (to the extent
that it may lawfully do so) hereby expressly waives all benefit or advantage of
any such law, and shall not hinder, delay or impede the execution of any power
herein granted to the Trustee, but shall suffer and permit the execution of
every such power as though no such law had been enacted.
ARTICLE 7
Trustee
Section 7.01. Duties of Trustee.
-----------------
(a) If an Event of Default has occurred and is continuing, the Trustee
shall exercise the rights and powers vested in it by this Indenture and use the
same degree of care and skill in their exercise as a prudent Person would
exercise or use under the circumstances in the conduct of such Person's own
affairs.
(b) Except during the continuance of an Event of Default:
(1) the Trustee undertakes to perform such duties and only such duties
as are specifically set forth in this Indenture and no implied covenants or
obligations shall be read into this Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions furnished to
the Trustee and conforming to the requirements of this Indenture. However,
the Trustee shall examine the certificates and opinions to determine
whether or not they conform to the requirements of this Indenture.
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(1) this paragraph does not limit the effect of paragraph (b) of this
Section;
(2) the Trustee shall not be liable for any error of judgment made in
good faith by a Trust Officer unless it is proved that the Trustee was
negligent in ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.05.
-57-
(d) Every provision of this Indenture that in any way relates to the
Trustee is subject to paragraphs (a), (b) and (c) of this Section 7.01.
(e) The Trustee shall not be liable for interest on any money received
by it except as the Trustee may agree in writing with the Company.
(f) Money held in trust by the Trustee need not be segregated from
other funds except to the extent required by law.
(g) No provision of this Indenture shall require the Trustee to expend
or risk its own funds or otherwise incur financial liability in the
performance of any of its duties hereunder or in the exercise of any of its
rights or powers, if it shall have reasonable grounds to believe that
repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured to it.
(h) Every provision of this Indenture relating to the conduct or
affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section 7.01 and to the provisions of the
TIA.
Section 7.02. Rights of Trustee.
-----------------
(a) The Trustee may conclusively rely and shall be fully protected in
acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture or other paper or document believed to be
genuine and to have been signed or presented by the proper party or
parties.
(b) Before the Trustee acts or refrains from acting, it may require an
Officers' Certificate or an Opinion of Counsel. The Trustee shall not be
liable for any action it takes or omits to take in good faith in reliance
on the Officers' Certificate or Opinion of Counsel.
(c) The Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through, agents,
attorneys, custodians or nominees and the Trustee shall not be responsible
for any misconduct or negligence on the part of any agent, attorney,
custodian or nominee appointed with due care by it hereunder.
(d) The Trustee shall not be liable for any action it takes or omits
to take in good faith which it believes to be authorized or within its
rights or powers; provided, however, that the Trustee's conduct does not
-------- -------
constitute willful misconduct or negligence.
(e) The Trustee may consult with counsel, and the advice or opinion of
counsel with respect to legal matters relating to this Indenture and the
Securities shall be full and complete authorization and protection from
liability in respect to any action taken, omitted or suffered by it
hereunder in good faith and in accordance with the advice or opinion of
such counsel.
(f) The Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval,
bond, debenture, note or other paper or document unless
-58-
requested in writing to do so by the Required Holders, 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 shall not be accountable for the use by the Company of
the proceeds of the Securities.
Section 7.03. Individual Rights of Trustee. The Trustee in its
----------------------------
individual or any other capacity may become the owner or pledgee of Securities
and may otherwise deal with the Company or its Affiliates with the same rights
it would have if it were not Trustee. Any Paying Agent, Registrar or co-paying
agent may do the same with like rights. However, the Trustee must comply with
Sections 7.10 and 7.11.
Section 7.04. Trustee's Disclaimer. The Trustee shall not be
--------------------
responsible for and makes no representation as to the validity or adequacy of
this Indenture or the Securities, it shall not be accountable for the Company's
use of the proceeds from the Securities, and it shall not be responsible for any
statement of the Company in this Indenture or in any document issued in
connection with the sale of the Securities or in the Securities other than the
Trustee's certificate of authentication.
Section 7.05. Notice of Defaults. If a Default occurs and is
------------------
continuing and if it is actually known to a Trust Officer, the Trustee shall
mail to each Securityholder notice of the Default within the earlier of 90 days
after it occurs or 30 days after it actually becomes known to a Trust Officer.
Except in the case of a Default in payment of principal of or interest on any
Security (including payments pursuant to the mandatory redemption provisions of
such Security, if any), the Trustee may withhold the notice if and so long as a
committee of its Trust Officers in good faith determines that withholding the
notice is in the interests of Securityholders.
Section 7.06. Reports by Trustee to Holders. As promptly as
-----------------------------
practicable after each May 15 beginning with the May 15 following the date of
this Indenture, and in any event prior to July 15 in each year, the Trustee
shall mail to each Securityholder a brief report dated as of July 15 that
complies with Section 313(a) of the TIA. The Trustee shall also comply with
Section 313(b) of the TIA.
A copy of each report at the time of its mailing to Securityholders
shall be filed with the Commission and each stock exchange (if any) on which the
Securities are listed. The Company agrees to notify promptly the Trustee in
writing whenever the Securities become listed on any stock exchange and of any
delisting thereof.
Section 7.07. Compensation and Indemnity. The Company shall pay to the
--------------------------
Trustee from time to time reasonable compensation for its services. The
Trustee's compensation shall not be limited by any law on compensation of a
trustee of an express trust. The Company shall reimburse the Trustee upon
request for all reasonable out-of-pocket expenses incurred or made by it,
including costs of collection, in addition to the compensation for its services.
Such expenses shall include the reasonable compensation and expenses,
disbursements and advances of the Trustee's agents, counsel, accountants and
experts. The Company and each Subsidiary
-59-
Guarantor, jointly and severally shall indemnify the Trustee, its directors,
officers, employees and agents against any and all loss, liability or expense
(including reasonable attorneys' fees and expenses) incurred by or in connection
with the administration of this trust and the performance of its duties
hereunder. The Trustee shall notify the Company of any claim for which it may
seek indemnity promptly upon obtaining actual knowledge thereof; provided,
--------
however, that any failure so to notify the Company shall not relieve the Company
- -------
or any Subsidiary Guarantor of its indemnity obligations hereunder. The Company
shall defend the claim and the indemnified party shall provide reasonable
cooperation at the Company's expense in the defense. Such indemnified parties
may have separate counsel and the Company and the Subsidiary Guarantors, as
applicable shall pay the fees and expenses of such counsel; provided, however,
-------- -------
that the Company shall not be required to pay such fees and expenses if it
assumes such indemnified parties' defense and, in such indemnified parties'
reasonable judgment, there is no conflict of interest between the Company and
the Subsidiary Guarantor, as applicable, and such parties in connection with
such defense. The Company need not reimburse any expense or indemnify against
any loss, liability or expense incurred by an indemnified party through such
party's own willful misconduct, negligence or bad faith.
To secure the Company's payment obligations in this Section 7.07, the
Trustee shall have a lien prior to the Securities on all money or property held
or collected by the Trustee other than money or property held in trust to pay
principal of and interest and any liquidated damages on particular Securities.
The Company's payment obligations pursuant to this Section 7.07 shall
survive the satisfaction or discharge of this Indenture, any rejection or
termination of this Indenture under any Bankruptcy Law or the resignation or
removal of the Trustee. When the Trustee incurs expenses after the occurrence
of a Default specified in clause (7) or (8) of Section 6.01 with respect to the
Company, the expenses are intended to constitute expenses of administration
under the Bankruptcy Law.
Section 7.08. Replacement of Trustee. The Trustee may resign at any
----------------------
time by so notifying the Company. The Required Holders may remove the Trustee by
so notifying the Trustee and may appoint a successor Trustee. The Company shall
remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged bankrupt or insolvent;
(3) a receiver or other public officer takes charge of the Trustee or
its property;
(4) the Trustee otherwise becomes incapable of acting; or
(5) the Trustee increases its fees (exclusive of fees for
extraordinary services) by more than 10% in any twelve month period.
If the Trustee resigns, is removed by the Company or by the Required
Holders and such Required Holders do not reasonably promptly appoint a successor
Trustee, or if a
-60-
vacancy exists in the office of Trustee for any reason (the Trustee in such
event being referred to herein as the retiring Trustee), the Company shall
promptly appoint a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee shall mail a notice of its
succession to Securityholders. The retiring Trustee shall promptly transfer all
property held by it as Trustee to the successor Trustee, subject to the lien
provided for in Section 7.07.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee or the Holders of
10% in Accreted Value of the outstanding Securities, voting as a single class,
may petition any court of competent jurisdiction for the appointment of a
successor Trustee.
If the Trustee fails to comply with Section 7.10, any Securityholder
may petition any court of competent jurisdiction for the removal of the Trustee
and the appointment of a successor Trustee.
Notwithstanding the replacement of the Trustee pursuant to this
Section, the Company's obligations under Section 7.07 shall continue for the
benefit of the retiring Trustee.
Section 7.09. Successor Trustee by Merger. If the Trustee consolidates
---------------------------
with, merges or converts into, or transfers all or substantially all its
corporate trust business or assets to, another corporation or banking
association, the resulting, surviving or transferee corporation without any
further act shall be the successor Trustee.
In case at the time such successor or successors by merger, conversion
or consolidation to the Trustee shall succeed to the trusts created by this
Indenture any of the Securities shall have been authenticated but not delivered,
any such successor to the Trustee may adopt the certificate of authentication of
any predecessor trustee, and deliver such Securities so authenticated; and in
case at that time any of the Securities shall not have been authenticated, any
successor to the Trustee may authenticate such Securities in the name of the
successor to the Trustee; and in all such cases such certificates shall have the
full force which it is anywhere in the Securities or in this Indenture provided
that the certificate of the Trustee shall have.
Section 7.10. Eligibility; Disqualification. The Trustee shall at all
-----------------------------
times satisfy the requirements of Section 310(a) of the TIA. The Trustee shall
have a combined capital and surplus of at least $100,000,000 as set forth in its
most recent published annual report of condition. The Trustee shall comply with
Section 3.01(b) of the TIA; provided, however, that there shall be excluded from
the operation of Section 3.01(b)(1) of the TIA any indenture or indentures under
which other securities or certificates of interest or participation in other
securities of the Company are outstanding if the requirements for such exclusion
set forth in Section 3.01(b)(1) of the TIA are met.
Section 7.11. Preferential Collection of Claims Against Company. The
-------------------------------------------------
Trustee shall comply with Section 311(a) of the TIA, excluding any creditor
relationship listed in
-61-
Section 311(b) of the TIA. A Trustee who has resigned or been removed shall be
subject to Section 311(a) of the TIA to the extent indicated.
Section 7.12. Trustee Acting as Paying Agent or Registrar. In the
-------------------------------------------
event that the Trustee is also acting as a Paying Agent or Registrar hereunder,
the rights and protections afforded to the Trustee pursuant to this Article 7
shall also be afforded to such Paying Agent or Registrar.
ARTICLE 8
Discharge of Indenture; Defeasance
Section 8.01. Discharge of Liability on Securities; Defeasance.
------------------------------------------------
(a) When (i) the Company delivers to the Trustee all outstanding
Securities (other than Securities replaced pursuant to Section 2.08) for
cancellation or (ii) all outstanding Securities have become due and payable,
whether at maturity or as a result of the mailing of a notice of redemption
pursuant to Article 3, and the Company irrevocably deposits with the Trustee
funds or U.S. Government Obligations on which payment of principal and interest
when due will be sufficient to pay at maturity or upon redemption all
outstanding Securities, including interest thereon to maturity or such
redemption date (other than Securities replaced pursuant to Section 2.08), and
if in either case the Company pays all other sums payable hereunder by the
Company, then this Indenture shall, subject to Section 8.01(c), cease to be of
further effect. The Trustee shall acknowledge satisfaction and discharge of this
Indenture on demand of the Company accompanied by an Officers' Certificate and
an Opinion of Counsel and at the cost and expense of the Company.
(b) Subject to Sections 8.01(c) and 8.02, the Company at any time may
terminate (i) all of its obligations under the Securities and this Indenture
("legal defeasance option") or (ii) its obligations under Sections 4.02, 4.03,
4.04, 4.05, 4.06, 4.07, 4.08, 4.09, 4.10, 4.11, 4.13, 4.14 and 4.15 and the
operation of Section 5.01(a)(3), 6.01(4), 6.01(6), 6.01(7) (with respect to
Significant Subsidiaries of the Company only) and 6.01(8) (with respect to
Significant Subsidiaries of the Company only) ("covenant defeasance option").
The Company may exercise its legal defeasance option notwithstanding its prior
exercise of its covenant defeasance option. In the event that the Company
terminates all of its obligations under the Securities and this Indenture by
exercising its legal defeasance option, the obligations under the Subsidiary
Guarantees shall each be terminated simultaneously with the termination of such
obligations.
If the Company exercises its legal defeasance option, payment of the
Securities may not be accelerated because of an Event of Default. If the
Company exercises its covenant defeasance option, payment of the Securities may
not be accelerated because of an Event of Default specified in Section 6.01(4),
6.01(6), 6.01(7) (with respect to Significant Subsidiaries of the Company only)
or 6.01(8) because of the failure of the Company to comply with clauses (3) and
(4) of Section 5.01(a).
-62-
Upon satisfaction of the conditions set forth herein and upon request
of the Company, the Trustee shall acknowledge in writing the discharge of those
obligations that the Company terminates.
(c) Notwithstanding clauses (a) and (b) above, the Company's
obligations in Sections 2.04, 2.05, 2.06, 2.07, 2.08, 2.09, 2.10, 7.07, 7.08 and
in this Article 8 shall survive until the Securities have been paid in full.
Thereafter, the Company's obligations in Sections 7.07, 8.04 and 8.05 shall
survive.
Section 8.02. Conditions to Defeasance. The Company may exercise its
------------------------
legal defeasance option or its covenant defeasance option only if:
(1) the Company irrevocably deposits in trust with the Trustee money
or U.S. Government Obligations for the payment of principal, premium (if
any) and interest on the Securities to maturity or redemption, as the case
may be;
(2) the Company delivers to the Trustee a certificate from a
nationally recognized firm of independent accountants expressing their
opinion that the payments of principal and interest when due and without
reinvestment on the deposited U.S. Government Obligations plus any
deposited money without investment will provide cash at such times and in
such amounts as will be sufficient to pay principal and interest when due
on all the Securities to maturity or redemption, as the case may be;
(3) 123 days pass after the deposit is made and during the 123-day
period no Default specified in clause (7) or (8) of Section 6.01 with
respect to the Company occurs which is continuing at the end of the period;
(4) the deposit does not constitute a default under any other
agreement binding on the Company and is not prohibited by Article 10;
(5) the Company delivers to the Trustee an Opinion of Counsel to the
effect that the trust resulting from the deposit does not constitute, or is
qualified as, a regulated investment company under the Investment Company
Act of 1940;
(6) in the case of the legal defeasance option, the Company shall have
delivered to the Trustee an Opinion of Counsel stating that (i) the Company
has received from, or there has been published by, the Internal Revenue
Service a ruling, or (ii) since the date of this Indenture there has been a
change in the applicable Federal income tax law, in either case to the
effect that, and based thereon such Opinion of Counsel shall confirm that,
the Securityholders will not recognize income, gain or loss for Federal
income tax purposes as a result of such defeasance and will be subject to
Federal income tax on the same amounts, in the same manner and at the same
times as would have been the case if such defeasance had not occurred;
(7) in the case of the covenant defeasance option, the Company shall
have delivered to the Trustee an Opinion of Counsel to the effect that the
Securityholders will not recognize income, gain or loss for Federal income
tax purposes as a result of such covenant defeasance and will be subject to
Federal income tax on the same amounts, in
-63-
the same manner and at the same times as would have been the case if such
covenant defeasance had not occurred; and
(8) the Company delivers to the Trustee an Officers' Certificate and
an Opinion of Counsel, each stating that all conditions precedent to the
defeasance and discharge of the Securities as contemplated by this Article
8 have been complied with. Before or after a deposit, the Company may make
arrangements satisfactory to the Trustee for the redemption of Securities
at a future date in accordance with Article 3.
Section 8.03. Application of Trust Money. The Trustee shall hold in
--------------------------
trust money or U.S. Government Obligations deposited with it pursuant to this
Article 8. It shall apply the deposited money and the money from U.S. Government
Obligations through the Paying Agent and in accordance with this Indenture to
the payment of principal of and interest on the Securities. Money and securities
so held in trust are not subject to Article 10.
Section 8.04. Repayment to Company. The Trustee and the Paying Agent
--------------------
shall promptly turn over to the Company upon request any excess money or
securities held by them at any time.
Subject to any applicable abandoned property law, the Trustee and the
Paying Agent shall pay to the Company upon written request any money held by
them for the payment of principal or interest that remains unclaimed for two
years, and, thereafter, Securityholders entitled to the money must look to the
Company for payment as general creditors.
Section 8.05. Indemnity for Government Obligations. The Company shall
------------------------------------
pay and shall indemnify the Trustee against any tax, fee or other charge imposed
on or assessed against deposited U.S. Government Obligations or the principal
and interest received on such U.S. Government Obligations.
Section 8.06. Reinstatement. If the Trustee or Paying Agent is unable
-------------
to apply any money or U.S. Government Obligations in accordance with this
Article 8 by reason of any legal proceeding or by reason of any order or
judgment of any court or governmental authority enjoining, restraining or
otherwise prohibiting such application, the Company's obligations under this
Indenture and the Securities shall be revived and reinstated as though no
deposit had occurred pursuant to this Article 8 until such time as the Trustee
or Paying Agent is permitted to apply all such money or U.S. Government
Obligations in accordance with this Article 8; provided, however, that, if the
Company has made any payment of interest on or principal of any Securities
because of the reinstatement of its obligations, the Company shall be subrogated
to the rights of the Holders of such Securities to receive such payment from the
money or U.S. Government Obligations held by the Trustee or Paying Agent.
-64-
ARTICLE 9
Amendments
Section 9.01. Without Consent of Holders.
--------------------------
(a) Without the consent of any Holder of Securities, the Company, the
Subsidiary Guarantors and the Trustee may amend this Indenture to:
(1) cure any ambiguity, omission, defect or inconsistency;
(2) comply with Article 5;
(3) provide for uncertificated Securities in addition to, or in place
of, certificated Securities; provided, however, that the uncertificated
-------- -------
Securities are issued in registered form for purposes of Section 163(f) of
the Code, or in a manner such that the uncertificated Securities are
described in Section 163(f)(2)(B) of the Code;
(4) make any change in Article 10 or Article 12 that would limit or
terminate the benefits available to any holder of Senior Indebtedness of
the Company (or any Representative thereof) under Article 10 or Article 12;
(5) add additional guarantees with respect to the Securities;
(6) secure the Securities;
(7) add to the covenants of the Company for the benefit of the
Securityholders;
(8) surrender any right or power herein conferred upon the Company;
(9) make any change that does not adversely affect the rights of any
Securityholder;
(10) provide for the creation and issuance of any Tranche of
Securities or of any additional Securities of a particular Tranche,
including the issuance of the Exchange Securities or Private Exchange
Securities, subject to the provisions of this Indenture; or
(11) comply with any requirement of the Commission in connection with
the qualification of this Indenture under the TIA.
(b) No amendment may be made under this Section 9.01, that adversely
affects the rights under Article 10 or Article 12 of any holder of Senior
Indebtedness of the Company then outstanding unless the holders of such Senior
Indebtedness (or any group or representative thereof authorized to give a
consent) consent to such change.
(c) After an amendment under this Section 9.01 becomes effective, the
Company shall mail to Securityholders a notice briefly describing such
amendment. The failure
-65-
to give such notice to all Securityholders, or any defect therein, shall not
impair or affect the validity of the amendment.
Section 9.02. With Consent of Holders. The Company, the Subsidiary
-----------------------
Guarantors and the Trustee may amend this Indenture or the Securities without
notice to any Securityholder but with the written consent of the Required
Holders (including consents obtained in connection with a tender offer or
exchange for the Securities). However, without the consent of each
Securityholder affected, an amendment may not:
(1) reduce the amount of Securities whose Holders must consent to an
amendment;
(2) reduce the rate of, or extend the time for payment of, interest or
any liquidated damages on any Security;
(3) reduce the principal of, or extend the Stated Maturity of, any
Security;
(4) reduce the premium payable upon the redemption of any Security or
change the time at which any Security may be redeemed in accordance with
Article 3;
(5) make any Security payable in money other than that stated in the
Security;
(6) impair the right of any Holder of Securities to receive payment of
principal of and interest or any liquidated damages on such Holder's
Securities on or after the due dates therefor or to institute suit for the
enforcement of any payment on or with respect to such Holder's Securities;
or
(7) make any change in the amendment provisions which require the
consent of each Holder of Securities or in the waiver provisions.
It shall not be necessary for the consent of the Holders under this
Section 9.02 to approve the particular form of any proposed amendment, but it
shall be sufficient if such consent approves the substance thereof.
After an amendment under this Section 9.02 becomes effective, the
Company shall mail to Securityholders a notice briefly describing such
amendment. The failure to give such notice to all Securityholders, or any
defect therein, shall not impair or affect the validity of an amendment under
this Section 9.02.
Section 9.03. Compliance with Trust Indenture Act. Every amendment to
-----------------------------------
this Indenture or the Securities shall comply with the TIA as then in effect.
Section 9.04. Revocation and Effect of Consents and Waivers. A consent
---------------------------------------------
to an amendment or a waiver by a Holder of a Security shall bind the Holder and
every subsequent Holder of that Security or portion of the Security that
evidences the same debt as the consenting Holder's Security, even if notation of
the consent or waiver is not made on the Security. However, any such Holder or
subsequent Holder may revoke the consent or waiver as to such Holder's Security
or portion of the Security if the Trustee receives the notice of revocation
-66-
before the date on which the Trustee receives an Officers' Certificate from the
Company certifying that the requisite number of consents have been received.
After an amendment or waiver becomes effective, it shall bind every
Securityholder. An amendment or waiver becomes effective upon the (i) receipt by
the Company or the Trustee of the requisite number of consents, (ii)
satisfaction of conditions to effectiveness as set forth in this Indenture and
any indenture supplemental hereto containing such amendment or waiver and (iii)
execution of such amendment or waiver (or supplemental indenture) by the Company
and the Trustee.
The Company may, but shall not be obligated to, fix a record date for
the purpose of determining the Securityholders entitled to give their consent or
take any other action described above or required or permitted to be taken
pursuant to this Indenture. If a record date is fixed, then notwithstanding the
immediately preceding paragraph, those Persons who were Securityholders at such
record date (or their duly designated proxies), and only those Persons, shall be
entitled to give such consent or to revoke any consent previously given or to
take any such action, whether or not such Persons continue to be Holders after
such record date. No such consent shall be valid or effective for more than 120
days after such record date.
Section 9.05. Notation on or Exchange of Securities. If an amendment
-------------------------------------
changes the terms of a Security, the Trustee may require the Holder of the
Security to deliver it to the Trustee. The Trustee may place an appropriate
notation on the Security regarding 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. Failure to make the appropriate
notation or to issue a new Security shall not affect the validity of such
amendment.
Section 9.06. Trustee To Sign Amendments. The Trustee shall sign any
--------------------------
amendment authorized pursuant to this Article 9 if the amendment does not
adversely affect the rights, duties, liabilities or immunities of the Trustee.
If it does, the Trustee may but need not sign it. In signing such amendment the
Trustee shall be entitled to receive indemnity reasonably satisfactory to it and
to receive, and (subject to Section 7.01) shall be fully protected in relying
upon, an Officers' Certificate and an Opinion of Counsel stating that such
amendment is authorized or permitted by this Indenture and that such amendment
is the legal, valid and binding obligation of the Company and the Subsidiary
Guarantors enforceable against them in accordance with its terms, subject to
customary exceptions, and complies with the provisions hereof (including Section
9.03).
Section 9.07. Payment for Consent. Neither the Company nor any
-------------------
Affiliate of the Company shall, directly or indirectly, pay or cause to be paid
any consideration, whether by way of interest, fee or otherwise, to any Holder
for or as an inducement to any consent, waiver or amendment of any of the terms
or provisions of this Indenture or the Securities unless such consideration is
offered to be paid to all Holders that so consent, waive or agree to amend in
the time frame set forth in solicitation documents relating to such consent,
waiver or agreement.
-67-
ARTICLE 10
Subordination
Section 10.01. Agreement To Subordinate. The Company agrees, and each
------------------------
Securityholder by accepting a Security agrees, that the Indebtedness evidenced
by the Securities is subordinated in right of payment, to the extent and in the
manner provided in this Article 10, to the prior payment in full of all Senior
Indebtedness of the Company and that the subordination is for the benefit of and
enforceable by the holders of such Senior Indebtedness. The Securities shall in
all respects rank pari passu with all other Senior Subordinated Indebtedness of
---- -----
the Company, and only Indebtedness of the Company that is Senior Indebtedness of
the Company shall rank senior to the Securities in accordance with the
provisions set forth herein. For purposes of this Article 10, the Indebtedness
evidenced by the Securities shall be deemed to include the liquidated damages
payable pursuant to the provisions set forth in the Securities and the
Registration Agreement. All provisions of this Article 10 shall be subject to
Section 10.12.
Section 10.02. Liquidation, Dissolution, Bankruptcy. Upon any payment
------------------------------------
or distribution of the assets of the Company to creditors upon a total or
partial liquidation or a total or partial dissolution of the Company or in a
bankruptcy, reorganization, insolvency, receivership or similar proceeding
relating to the Company or its property:
(1) holders of Senior Indebtedness of the Company shall be entitled to
receive payment in full of such Senior Indebtedness before Securityholders
shall be entitled to receive any payment of principal of or interest on the
Securities; and
(2) until the Senior Indebtedness of the Company is paid in full, any
payment or distribution to which Securityholders would be entitled but for
this Article 10 shall be made to holders of such Senior Indebtedness as
their interests may appear, except that Securityholders may receive shares
of stock and any debt securities that are subordinated to such Senior
Indebtedness to at least the same extent as the Securities.
Section 10.03. Default on Senior Indebtedness. The Company may not pay
------------------------------
the principal of, premium (if any) or interest on the Securities or make any
deposit pursuant to Section 8.01 and may not otherwise repurchase, redeem or
otherwise retire any Securities (collectively, "pay the Securities") if (i) any
Designated Senior Indebtedness of the Company is not paid when due or (ii) any
other default on such Designated Senior Indebtedness occurs and the maturity of
such Designated Senior Indebtedness is accelerated in accordance with its terms
unless, in either case, (x) the default has been cured or waived and any such
acceleration has been rescinded or (y) such Designated Senior Indebtedness has
been paid in full; provided, however, that the Company may pay the Securities
-------- -------
without regard to the foregoing if the Company and the Trustee receive written
notice approving such payment from the Representative of such Designated Senior
Indebtedness with respect to which either of the events set forth in clause (i)
or (ii) of this sentence has occurred and is continuing. During the continuance
of any default (other than a default described in clause (i) or (ii) of the
preceding sentence) with respect to any Designated Senior Indebtedness of the
Company pursuant to which the maturity thereof may be accelerated immediately
without further notice (except such notice as may be required to effect such
acceleration) or the expiration of any applicable grace periods,
-68-
the Company may not pay the Securities for a period (a "Payment Blockage
Period") commencing upon the receipt by the Trustee (with a copy to the Company)
of written notice (a "Blockage Notice") of such default from the Representative
of such Designated Senior Indebtedness specifying an election to effect a
Payment Blockage Period and ending 179 days thereafter (or earlier if such
Payment Blockage Period is terminated (i) by written notice to the Trustee and
the Company from the Person or Persons who gave such Blockage Notice, (ii) by
repayment in full of such Designated Senior Indebtedness or (iii) because the
default giving rise to such Blockage Notice is no longer continuing).
Notwithstanding the provisions described in the immediately preceding sentence
(but subject to the provisions contained in the first sentence of this Section
10.03), unless the holders of such Designated Senior Indebtedness or the
Representative of such holders shall have accelerated the maturity of such
Designated Senior Indebtedness, the Company may resume payments on the
Securities after the end of such Payment Blockage Period. Not more than one
Blockage Notice may be given in any consecutive 360-day period, irrespective of
the number of defaults with respect to Designated Senior Indebtedness during
such period; provided, however, that if any Blockage Notice within such 360-day
-------- -------
period is given by or on behalf of any holders of Designated Senior Indebtedness
other than the Bank Indebtedness, the Representative of the Bank Indebtedness
may give another Blockage Notice within such period; provided further, however,
-------- ------- -------
that in no event may the total number of days during which any Payment Blockage
Period or Periods is in effect exceed 179 days in the aggregate during any 360
consecutive day period. For purposes of this Section 10.03, no default or event
of default that existed or was continuing on the date of the commencement of any
Payment Blockage Period with respect to the Designated Senior Indebtedness
initiating such Payment Blockage Period shall be, or be made, the basis of the
commencement of a subsequent Payment Blockage Period by the Representative of
such Designated Senior Indebtedness, whether or not within a period of 360
consecutive days, unless such default or event of default shall have been cured
or waived for a period of not less than 90 consecutive days.
Section 10.04. Acceleration of Payment of Securities. If payment of
-------------------------------------
the Securities is accelerated because of an Event of Default, the Company or the
Trustee shall promptly notify the holders of the Designated Senior Indebtedness
of the Company (or their Representative) of the acceleration. If any Designated
Senior Indebtedness of the Company is outstanding, the Company may not pay the
Securities until five Business Days after such holders or the Representative of
such Designated Senior Indebtedness receive notice of such acceleration and,
thereafter, may pay the Securities only if this Article 10 otherwise permits
payment at that time.
Section 10.05. When Distribution Must Be Paid Over. If a distribution
-----------------------------------
is made to Securityholders that because of this Article 10 should not have been
made to them, the Securityholders who receive the distribution shall hold it in
trust for holders of Senior Indebtedness of the Company and pay it over to them
as their interests may appear.
Section 10.06. Subrogation. After all Senior Indebtedness of the
-----------
Company is paid in full and until the Securities are paid in full,
Securityholders shall be subrogated to the rights of holders of such Senior
Indebtedness to receive distributions applicable to Senior Indebtedness. A
distribution made under this Article 10 to holders of such Senior Indebtedness
which otherwise would have been made to Securityholders is not, as between the
Company and Securityholders, a payment by the Company on such Senior
Indebtedness.
-69-
Section 10.07. Relative Rights. This Article 10 defines the relative
---------------
rights of Securityholders and holders of Senior Indebtedness of the Company.
Nothing in this Indenture shall:
(1) impair, as between the Company and Securityholders, the obligation
of the Company, which is absolute and unconditional, to pay principal of
and interest on and liquidated damages in respect of, the Securities in
accordance with their terms; or
(2) prevent the Trustee or any Securityholder from exercising its
available remedies upon a Default, subject to the rights of holders of
Senior Indebtedness of the Company to receive distributions otherwise
payable to Securityholders.
Section 10.08. Subordination May Not Be Impaired by Company. No right
--------------------------------------------
of any holder of Senior Indebtedness of the Company to enforce the subordination
of the Indebtedness evidenced by the Securities shall be impaired by any act or
failure to act by the Company or by its failure to comply with this Indenture.
Section 10.09. Rights of Trustee and Paying Agent. Notwithstanding
----------------------------------
Section 10.03, the Trustee or Paying Agent may continue to make payments on the
Securities and shall not be charged with knowledge of the existence of facts
that would prohibit the making of any such payments unless, not less than two
Business Days prior to the date of such payment, a Trust Officer of the Trustee
receives notice satisfactory to it that payments may not be made under this
Article 10. The Company, the Registrar, the Paying Agent, a Representative or a
holder of Senior Indebtedness of the Company may give the notice; provided,
--------
however, that, if an issue of Senior Indebtedness of the Company has a
- -------
Representative, only the Representative may give the notice.
The Trustee in its individual or any other capacity may hold Senior
Indebtedness of the Company with the same rights it would have if it were not
Trustee. The Registrar and the Paying Agent may do the same with like rights.
The Trustee shall be entitled to all the rights set forth in this Article 10
with respect to any Senior Indebtedness of the Company which may at any time be
held by it, to the same extent as any other holder of such Senior Indebtedness;
and nothing in Article 7 shall deprive the Trustee of any of its rights as such
holder. Nothing in this Article 10 shall apply to claims of, or payments to,
the Trustee under or pursuant to Section 7.07.
Section 10.10. Distribution or Notice to Representative. Whenever a
----------------------------------------
distribution is to be made or a notice given to holders of Senior Indebtedness
of the Company, the distribution may be made and the notice given to their
Representative (if any).
Section 10.11. Article 10 Not To Prevent Events of Default or Limit
----------------------------------------------------
Right To Accelerate. The failure to make a payment pursuant to the Securities by
- -------------------
reason of any provision in this Article 10 shall not be construed as preventing
the occurrence of a Default. Nothing in this Article 10 shall have any effect on
the right of the Securityholders or the Trustee to accelerate the maturity of
the Securities.
Section 10.12. Trust Moneys Not Subordinated. Notwithstanding anything
-----------------------------
contained herein to the contrary, payments from money or the proceeds of U.S.
Government Obligations held in trust under Article 8 by the Trustee for the
payment of principal of and
-70-
interest on the Securities shall not be subordinated to the prior payment of any
Senior Indebtedness of the Company or subject to the restrictions set forth in
this Article 10, and none of the Securityholders shall be obligated to pay over
any such amount to the Company or any holder of Senior Indebtedness of the
Company or any other creditor of the Company.
Section 10.13. Trustee Entitled To Rely. Upon any payment or
------------------------
distribution pursuant to this Article 10, the Trustee and the Securityholders
shall be entitled to rely conclusively (i) upon any order or decree of a court
of competent jurisdiction in which any proceedings of the nature referred to in
Section 10.02 are pending, (ii) upon a certificate of the liquidating trustee or
agent or other Person making such payment or distribution to the Trustee or to
the Securityholders or (iii) upon the Representatives for the holders of Senior
Indebtedness of the Company for the purpose of ascertaining the Persons entitled
to participate in such payment or distribution, the holders of such 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 10. In the event that the Trustee
determines, in good faith, that evidence is required with respect to the right
of any Person as a holder of Senior Indebtedness of the Company to participate
in any payment or distribution pursuant to this Article 10, the Trustee may
request such Person to furnish evidence to the reasonable satisfaction of the
Trustee as to the amount of such Senior Indebtedness held by such Person, the
extent to which such Person is entitled to participate in such payment or
distribution and other facts pertinent to the rights of such Person under this
Article 10, and, if such evidence is not furnished, the Trustee may defer any
payment to such Person pending judicial determination as to the right of such
Person to receive such payment. The provisions of Sections 7.01 and 7.02 shall
be applicable to all actions or omissions of actions by the Trustee pursuant to
this Article 10.
Section 10.14. Trustee To Effectuate Subordination. Each
-----------------------------------
Securityholder by accepting a Security authorizes and directs the Trustee on his
behalf to take such action as may be necessary or appropriate to acknowledge or
effectuate the subordination between the Securityholders and the holders of
Senior Indebtedness of the Company as provided in this Article 10 and appoints
the Trustee as attorney-in-fact for any and all such purposes.
Section 10.15. Trustee Not Fiduciary for Holders of Senior
-------------------------------------------
Indebtedness. The Trustee shall not be deemed to owe any fiduciary duty to the
- ------------
holders of Senior Indebtedness of the Company and shall not be liable to any
such holders if it shall mistakenly pay over or distribute to Securityholders or
the Company or any other Person, money or assets to which any holders of Senior
Indebtedness of the Company shall be entitled by virtue of this Article 10 or
otherwise.
Section 10.16. Reliance by Holders of Senior Indebtedness on
---------------------------------------------
Subordination Provisions. Each Securityholder by accepting a Security
- ------------------------
acknowledges and agrees that the foregoing subordination provisions are, and are
intended to be, an inducement and a consideration to each holder of any Senior
Indebtedness of the Company, whether such Senior Indebtedness was created or
acquired before or after the issuance of the Securities, to acquire and continue
to hold, or to continue to hold, such Senior Indebtedness and such holder of
such Senior Indebtedness shall be deemed conclusively to have relied on such
subordination provisions in acquiring and continuing to hold, or in continuing
to hold, such Senior Indebtedness.
-71-
Section 10.17. Trustee's Compensation Not Prejudiced. Nothing in this
-------------------------------------
Article shall apply to amounts due to the Trustee pursuant to other sections of
this Indenture.
Section 10.18. Defeasance. The terms of this Article 10 shall not
----------
apply to payments from money or the proceeds of U.S. Government Obligations held
in trust by the Trustee for the payment of principal of and interest on the
Securities pursuant to the provisions described in Section 8.03.
ARTICLE 11
Subsidiary Guarantees
Section 11.01. Subsidiary Guarantees. Each Subsidiary Guarantor hereby
---------------------
jointly and severally irrevocably and unconditionally guarantees, as a primary
obligor and not merely as a surety, to each Holder and to the Trustee and its
successors and assigns (a) the full and punctual payment when due, whether at
Stated Maturity, by acceleration, by redemption or otherwise, of all obligations
of the Company under this Indenture (including obligations to the Trustee) and
the Securities, whether for payment of principal of, interest on or liquidated
damages in respect of, the Securities and all other monetary obligations of the
Company under this Indenture and the Securities and (b) the full and punctual
performance within applicable grace periods of all other obligations of the
Company whether for expenses, indemnification or otherwise under this Indenture
and the Securities (all the foregoing being hereinafter collectively called the
"Guaranteed Obligations"). Each Subsidiary Guarantor further agrees that the
Guaranteed Obligations may be extended or renewed, in whole or in part, without
notice or further assent from each such Subsidiary Guarantor, and that each such
Subsidiary Guarantor shall remain bound under this Article 11 notwithstanding
any extension or renewal of any Guaranteed Obligation.
Each Subsidiary Guarantor waives presentation to, demand of, payment
from and protest to the Company of any of the Guaranteed Obligations and also
waives notice of protest for nonpayment. Each Subsidiary Guarantor waives
notice of any default under the Securities or the Guaranteed Obligations. The
obligations of each Subsidiary Guarantor hereunder shall not be affected by (a)
the failure of any Holder or the Trustee to assert any claim or demand or to
enforce any right or remedy against the Company or any other Person under this
Indenture, the Securities or any other agreement or otherwise; (b) any extension
or renewal of any thereof; (c) any rescission, waiver, amendment or modification
of any of the terms or provisions of this Indenture, the Securities or any other
agreement; (d) the release of any security held by any Holder or the Trustee for
the Guaranteed Obligations or any of them; (e) the failure of any Holder or
Trustee to exercise any right or remedy against any other guarantor of the
Guaranteed Obligations; or (f) any change in the ownership of such Subsidiary
Guarantor, except as provided in Section 11.02(b).
Each Subsidiary Guarantor hereby waives any right to which it may be
entitled to have its obligations hereunder divided among the Subsidiary
Guarantors, such that such Subsidiary Guarantor's obligations would be less than
the full amount claimed. Each Subsidiary Guarantor hereby waives any right to
which it may be entitled to have the assets of the Company first be used and
depleted as payment of the Company's or such Subsidiary Guarantor's
-72-
obligations hereunder prior to any amounts being claimed from or paid by such
Subsidiary Guarantor hereunder. Each Subsidiary Guarantor hereby waives any
right to which it may be entitled to require that the Company be sued prior to
an action being initiated against such Subsidiary Guarantor.
Each Subsidiary Guarantor further agrees that its Subsidiary Guarantee
herein constitutes a guarantee of payment, performance and compliance when due
(and not a guarantee of collection) and waives any right to require that any
resort be had by any Holder or the Trustee to any security held for payment of
the Guaranteed Obligations.
The Subsidiary Guarantee of each Subsidiary Guarantor is, to the
extent and in the manner set forth in Article 12, subordinated and subject in
right of payment to the prior payment in full of the principal of and premium,
if any, and interest on all Senior Indebtedness of the relevant Subsidiary
Guarantor and is made subject to such provisions of this Indenture.
Except as expressly set forth in Sections 8.01(b), 11.02 and 11.06,
the obligations of each Subsidiary Guarantor hereunder shall not be subject to
any reduction, limitation, impairment or termination for any reason, including
any claim of waiver, release, surrender, alteration or compromise, and shall not
be subject to any defense of setoff, counterclaim, recoupment or termination
whatsoever or by reason of the invalidity, illegality or unenforceability of the
Guaranteed Obligations or otherwise. Without limiting the generality of the
foregoing, the obligations of each Subsidiary Guarantor herein shall not be
discharged or impaired or otherwise affected by the failure of any Holder or the
Trustee to assert any claim or demand or to enforce any remedy under this
Indenture, the Securities or any other agreement, by any waiver or modification
of any thereof, by any default, failure or delay, willful or otherwise, in the
performance of the obligations, or by any other act or thing or omission or
delay to do any other act or thing which may or might in any manner or to any
extent vary the risk of any Subsidiary Guarantor or would otherwise operate as a
discharge of any Subsidiary Guarantor as a matter of law or equity.
Each Subsidiary Guarantor agrees that its Subsidiary Guarantee shall
remain in full force and effect until payment in full of all the Guaranteed
Obligations (except as otherwise provided in Section 8.01(b)). Each Subsidiary
Guarantor further agrees that its Subsidiary Guarantee herein shall continue to
be effective or be reinstated, as the case may be, if at any time payment, or
any part thereof, of principal of or interest on any Guaranteed Obligation is
rescinded or must otherwise be restored by any Holder or the Trustee upon the
bankruptcy or reorganization of the Company or otherwise.
In furtherance of the foregoing and not in limitation of any other
right which any Holder or the Trustee has at law or in equity against any
Subsidiary Guarantor by virtue hereof, upon the failure of the Company to pay
the principal of or interest on any Guaranteed Obligation when and as the same
shall become due, whether at maturity, by acceleration, by redemption or
otherwise, or to perform or comply with any other Guaranteed Obligation, each
Subsidiary Guarantor hereby promises to and shall, upon receipt of written
demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the
Holders or the Trustee an amount equal to the sum of (i) the unpaid principal
amount of such Guaranteed Obligations, (ii) accrued and unpaid interest
-73-
on such Guaranteed Obligations (but only to the extent not prohibited by law)
and (iii) all other monetary obligations of the Company to the Holders and the
Trustee.
Each Subsidiary Guarantor agrees that it shall not be entitled to any
right of subrogation in relation to the Holders in respect of any Guaranteed
Obligations guaranteed hereby until payment in full of all Guaranteed
Obligations and all obligations to which the Guaranteed Obligations are
subordinated as provided in Article 12. Each Subsidiary Guarantor further
agrees that, as between it, on the one hand, and the Holders and the Trustee, on
the other hand, (x) the maturity of the Guaranteed Obligations guaranteed hereby
may be accelerated as provided in Article 6 for the purposes of any Subsidiary
Guarantee herein, notwithstanding any stay, injunction or other prohibition
preventing such acceleration in respect of the Guaranteed Obligations guaranteed
hereby, and (y) in the event of any declaration of acceleration of such
Guaranteed Obligations as provided in Article 6, such Guaranteed Obligations
(whether or not due and payable) shall forthwith become due and payable by such
Subsidiary Guarantor for the purposes of this Section 11.01.
Each Subsidiary Guarantor also agrees to pay any and all costs and
expenses (including reasonable attorneys' fees and expenses) incurred by the
Trustee or any Holder in enforcing any rights under this Section 11.01.
Upon request of the Trustee, each Subsidiary Guarantor shall execute
and deliver such further instruments and do such further acts as may be
reasonably necessary or proper to carry out more effectively the purpose of this
Indenture.
Section 11.02. Limitation on Liability.
-----------------------
(a) Any term or provision of this Indenture to the contrary
notwithstanding, the maximum, aggregate amount of the Guaranteed Obligations
guaranteed hereunder by any Subsidiary Guarantor shall not exceed the maximum
amount that can be hereby guaranteed without rendering this Indenture, as it
relates to such Subsidiary Guarantor, voidable under applicable law relating to
fraudulent conveyance or fraudulent transfer or similar laws affecting the
rights of creditors generally.
(b) A Subsidiary Guarantee as to any Subsidiary Guarantor shall
terminate and be of no further force or effect and such Subsidiary Guarantor
shall be deemed to be released from all obligations under this Article 11 upon
(i) the merger or consolidation of such Subsidiary Guarantor with or into any
Person other than the Company or a Subsidiary or Affiliate of the Company where
such Subsidiary Guarantor is not the surviving entity of such consolidation or
merger or (ii) the sale by the Company or any Subsidiary of the Company (or any
pledgee of the Company) of a majority of the Capital Stock of such Subsidiary
Guarantor, where, after such sale, such Subsidiary Guarantor is no longer a
Subsidiary of the Company; provided, however, that each such merger,
-------- -------
consolidation or sale (or, in the case of a sale by such a pledgee, the
disposition of the proceeds of such sale) shall comply with Section 4.06 and
Section 5.01(b). At the written request of the Company, the Trustee shall
execute and deliver an appropriate instrument evidencing such release.
-74-
Section 11.03. Successors and Assigns. This Article 11 shall be
----------------------
binding upon each Subsidiary Guarantor and its successors and assigns and shall
inure to the benefit of the successors and assigns of the Trustee and the
Holders and, in the event of any transfer or assignment of rights by any Holder
or the Trustee, the rights and privileges conferred upon that party in this
Indenture and in the Securities shall automatically extend to and be vested in
such transferee or assignee, all subject to the terms and conditions of this
Indenture.
Section 11.04. No Waiver. Neither a failure nor a delay on the part of
---------
either the Trustee or the Holders in exercising any right, power or privilege
under this Article 11 shall operate as a waiver thereof, nor shall a single or
partial exercise thereof preclude any other or further exercise of any right,
power or privilege. The rights, remedies and benefits of the Trustee and the
Holders herein expressly specified are cumulative and not exclusive of any other
rights, remedies or benefits which either may have under this Article 11 at law,
in equity, by statute or otherwise.
Section 11.05. Modification. No modification, amendment or waiver of
------------
any provision of this Article 11, nor the consent to any departure by any
Subsidiary Guarantor therefrom, shall in any event be effective unless the same
shall be in writing and signed by the Trustee, and then such waiver or consent
shall be effective only in the specific instance and for the purpose for which
given. No notice to or demand on any Subsidiary Guarantor in any case shall
entitle such Subsidiary Guarantor to any other or further notice or demand in
the same, similar or other circumstances.
Section 11.06. Execution of Supplemental Indenture for Future
----------------------------------------------
Subsidiary Guarantors. Each Subsidiary which is required to become a Subsidiary
- ---------------------
Guarantor pursuant to Section 4.11 shall promptly execute and deliver to the
Trustee a supplemental indenture in the form of Exhibit C hereto pursuant to
which such Subsidiary shall become a Subsidiary Guarantor under this Article 11
and shall guarantee the Guaranteed Obligations. Concurrently with the execution
and delivery of such supplemental indenture, the Company shall deliver to the
Trustee an Opinion of Counsel and an Officers' Certificate to the effect that
such supplemental indenture has been duly authorized, executed and delivered by
such Subsidiary and that, subject to the application of bankruptcy, insolvency,
moratorium, fraudulent conveyance or transfer and other similar laws relating to
creditors' rights generally and to the principles of equity, whether considered
in a proceeding at law or in equity, the Subsidiary Guarantee of such Subsidiary
Guarantor is a legal, valid and binding obligation of such Subsidiary Guarantor,
enforceable against such Subsidiary Guarantor in accordance with its terms.
ARTICLE 12
Subordination of the Subsidiary Guarantees
Section 12.01. Agreement To Subordinate. Each Subsidiary Guarantor
------------------------
agrees, and each Securityholder by accepting a Security agrees, that the
obligations of a Subsidiary Guarantor hereunder are subordinated in right of
payment, to the extent and in the manner provided in this Article 12, to the
prior payment in full of all Senior Indebtedness of such Subsidiary Guarantor
and that the subordination is for the benefit of and enforceable by the holders
of such Senior Indebtedness of such Subsidiary Guarantor. The obligations
hereunder
-75-
with respect to a Subsidiary Guarantor shall in all respects rank pari passu
---- -----
with all other Senior Subordinated Indebtedness of such Subsidiary Guarantor and
shall rank senior to all existing and future Subordinated Obligations of such
Subsidiary Guarantor; and only Indebtedness of such Subsidiary Guarantor that is
Senior Indebtedness of such Subsidiary Guarantor shall rank senior to the
obligations of such Subsidiary Guarantor in accordance with the provisions set
forth herein.
Section 12.02. Liquidation, Dissolution, Bankruptcy. Upon any payment
------------------------------------
or distribution of the assets of a Subsidiary Guarantor to creditors upon a
total or partial liquidation or a total or partial dissolution of such
Subsidiary Guarantor or in a bankruptcy, reorganization, insolvency,
receivership or similar proceeding relating to such Subsidiary Guarantor and its
properties:
(1) holders of Senior Indebtedness of such Subsidiary Guarantor shall
be entitled to receive payment in full of such Senior Indebtedness before
Securityholders shall be entitled to receive any payment pursuant to any
Guaranteed Obligations from such Subsidiary Guarantor; and
(2) until the Senior Indebtedness of such Subsidiary Guarantor is paid
in full, any payment or distribution to which Securityholders would be
entitled but for this Article 12 shall be made to holders of such Senior
Indebtedness as their respective interests may appear, except that
Securityholders may receive shares of stock and any debt securities that
are subordinated to such Senior Indebtedness to at least the same extent as
the Guarantees.
Section 12.03. Default on Designated Senior Indebtedness of a
----------------------------------------------
Subsidiary Guarantor. A Subsidiary Guarantor may not make any payment pursuant
- --------------------
to any of the Guaranteed Obligations or repurchase, redeem or otherwise retire
any Securities (collectively, "pay its Guarantee") if (i) any Designated Senior
Indebtedness of such Subsidiary Guarantor is not paid when due or (ii) any other
default on Designated Senior Indebtedness of such Subsidiary Guarantor occurs
and the maturity of such Designated Senior Indebtedness is accelerated in
accordance with its terms unless, in either case, (x) the default has been cured
or waived and any such acceleration has been rescinded or (y) such Designated
Senior Indebtedness has been paid in full; provided, however, that such
-------- -------
Subsidiary Guarantor may pay its Guarantee without regard to the foregoing if
such Subsidiary Guarantor and the Trustee receive written notice approving such
payment from the Representative of the holders of such Designated Senior
Indebtedness with respect to which either of the events in clause (i) or (ii) of
this sentence has occurred and is continuing. During the continuance of any
default (other than a default described in clause (i) or (ii) of the preceding
sentence) with respect to any Designated Senior Indebtedness of a Subsidiary
Guarantor pursuant to which the maturity thereof may be accelerated immediately
without further notice (except such notice as may be required to effect such
acceleration) or the expiration of any applicable grace periods, such Subsidiary
Guarantor may not pay its Guarantee for a Payment Blockage Period commencing
upon the receipt by the Trustee (with a copy to such Subsidiary Guarantor and
the Company) of a Blockage Notice of such default from the Representative of the
holders of the Designated Senior Indebtedness of such Subsidiary Guarantor
specifying an election to effect a Payment Blockage Period and ending 179 days
thereafter (or earlier if such Payment Blockage Period is terminated (i) by
written notice to the
-76-
Trustee (with a copy to such Subsidiary Guarantor and the Company) from the
Person or Persons who gave such Blockage Notice, (ii) because such Designated
Senior Indebtedness has been repaid in full or (iii) because the default giving
rise to such Blockage Notice is no longer continuing). Notwithstanding the
provisions described in the immediately preceding sentence (but subject to the
provisions contained in the first sentence of this Section 12.03), unless the
holders of such Designated Senior Indebtedness or the Representative of such
holders shall have accelerated the maturity of such Designated Senior
Indebtedness, such Subsidiary Guarantor may resume paying its Guarantee after
such Payment Blockage Period, including any missed payments. Not more than one
Blockage Notice may be given with respect to a Subsidiary Guarantor in any
consecutive 360-day period, irrespective of the number of defaults with respect
to Designated Senior Indebtedness of such Subsidiary Guarantor during such
period.
Section 12.04. Demand for Payment. If payment of the Securities is
------------------
accelerated because of an Event of Default and a demand for payment is made on a
Subsidiary Guarantor pursuant to Article 11, the Trustee shall promptly notify
the holders of the Designated Senior Indebtedness of such Subsidiary Guarantor
(or the Representative of such holders) of such demand. If any Designated Senior
Indebtedness of such Subsidiary Guarantor is outstanding, such Subsidiary
Guarantor may not pay its Guarantee until five Business Days after such holders
or the Representative of the holders of the Designated Senior Indebtedness of
such Subsidiary Guarantor receive notice of such demand and, thereafter, may pay
its Guarantee only if this Article 12 otherwise permits payment at that time.
Section 12.05. When Distribution Must Be Paid Over. If a payment or
-----------------------------------
distribution is made to Securityholders that because of this Article 12 should
not have been made to them, the Securityholders who receive the payment or
distribution shall hold such payment or distribution in trust for holders of the
Senior Indebtedness of the relevant Subsidiary Guarantor and pay it over to them
as their respective interests may appear.
Section 12.06. Subrogation. After all Senior Indebtedness of a
-----------
Subsidiary Guarantor is paid in full and until the Securities are paid in full
in cash, Securityholders shall be subrogated to the rights of holders of Senior
Indebtedness of such Subsidiary Guarantor to receive distributions applicable to
Designated Senior Indebtedness of such Subsidiary Guarantor. A distribution made
under this Article 12 to holders of Senior Indebtedness of such Subsidiary
Guarantor which otherwise would have been made to Securityholders is not, as
between such Subsidiary Guarantor and Securityholders, a payment by such
Subsidiary Guarantor on Senior Indebtedness of such Subsidiary Guarantor.
Section 12.07. Relative Rights. This Article 12 defines the relative
---------------
rights of Securityholders and holders of Senior Indebtedness of a Subsidiary
Guarantor. Nothing in this Indenture shall:
(1) impair, as between a Subsidiary Guarantor and Securityholders, the
obligation of a Subsidiary Guarantor which is absolute and unconditional,
to make payments with respect to the Guaranteed Obligations to the extent
set forth in Article 11; or
-77-
(2) prevent the Trustee or any Securityholder from exercising its
available remedies upon a default by a Subsidiary Guarantor under its
obligations with respect to the Guaranteed Obligations, subject to the
rights of holders of Senior Indebtedness of such Subsidiary Guarantor to
receive distributions otherwise payable to Securityholders.
Section 12.08. Subordination May Not Be Impaired by a Subsidiary
-------------------------------------------------
Guarantor. No right of any holder of Senior Indebtedness of a Subsidiary
- ---------
Guarantor to enforce the subordination of the obligations of such Subsidiary
Guarantor hereunder shall be impaired by any act or failure to act by such
Subsidiary Guarantor or by its failure to comply with this Indenture.
Section 12.09. Rights of Trustee and Paying Agent. Notwithstanding
----------------------------------
Section 12.03, the Trustee or the Paying Agent may continue to make payments on
the Securities and shall not be charged with knowledge of the existence of facts
that would prohibit the making of any such payments unless, not less than two
Business Days prior to the date of such payment, a Trust Officer of the Trustee
receives notice satisfactory to it that payments may not be made under this
Article 12. A Subsidiary Guarantor, the Registrar or co-registrar, the Paying
Agent, a Representative or a holder of Senior Indebtedness of a Subsidiary
Guarantor may give the notice; provided, however, that if an issue of Senior
-------- -------
Indebtedness of a Subsidiary Guarantor has a Representative, only the
Representative may give the notice.
The Trustee in its individual or any other capacity may hold Senior
Indebtedness of a Subsidiary Guarantor with the same rights it would have if it
were not Trustee. The Registrar and co-registrar and the Paying Agent may do
the same with like rights. The Trustee shall be entitled to all the rights set
forth in this Article 12 with respect to any Senior Indebtedness of a Subsidiary
Guarantor which may at any time be held by it, to the same extent as any other
holder of Senior Indebtedness of such Subsidiary Guarantor; and nothing in
Article 7 shall deprive the Trustee of any of its rights as such holder.
Nothing in this Article 12 shall apply to claims of, or payments to, the Trustee
under or pursuant to Section 7.07.
Section 12.10. Distribution or Notice to Representative. Whenever a
----------------------------------------
distribution is to be made or a notice given to holders of Senior Indebtedness
of a Subsidiary Guarantor, the distribution may be made and the notice given to
their Representative (if any).
Section 12.11. Article 12 Not To Prevent Events of Default or Limit
----------------------------------------------------
Right To Accelerate. The failure of a Subsidiary Guarantor to make a payment on
- -------------------
any of its obligations by reason of any provision in this Article 12 shall not
be construed as preventing the occurrence of a default by such Subsidiary
Guarantor under such obligations. Nothing in this Article 12 shall have any
effect on the right of the Securityholders or the Trustee to make a demand for
payment on a Subsidiary Guarantor pursuant to Article 11.
Section 12.12. Trustee Entitled To Rely. Upon any payment or
------------------------
distribution pursuant to this Article 12, the Trustee and the Securityholders
shall be entitled to rely conclusively (i) upon any order or decree of a court
of competent jurisdiction in which any proceedings of the nature referred to in
Section 12.02 are pending, (ii) upon a certificate of the liquidating trustee or
agent or other Person making such payment or distribution to the Trustee or to
the Securityholders or (iii) upon the Representatives for the holders of Senior
Indebtedness of
-78-
a Subsidiary Guarantor for the purpose of ascertaining the Persons entitled to
participate in such payment or distribution, the holders of the Senior
Indebtedness of a Subsidiary Guarantor and other Indebtedness of a Subsidiary
Guarantor, the amount thereof or payable thereon, the amount or amounts paid or
distributed thereon and all other facts pertinent thereto or to this Article 12.
In the event that the Trustee determines, in good faith, that evidence is
required with respect to the right of any Person as a holder of Senior
Indebtedness of a Subsidiary Guarantor to participate in any payment or
distribution pursuant to this Article 12, the Trustee may request such Person to
furnish evidence to the reasonable satisfaction of the Trustee as to the amount
of Senior Indebtedness of such Subsidiary Guarantor held by such Person, the
extent to which such Person is entitled to participate in such payment or
distribution and other facts pertinent to the rights of such Person under this
Article 12, and, if such evidence is not furnished, the Trustee may defer any
payment to such Person pending judicial determination as to the right of such
Person to receive such payment. The provisions of Sections 7.01 and 7.02 shall
be applicable to all actions or omissions of actions by the Trustee pursuant to
this Article 12.
Section 12.13. Trustee To Effectuate Subordination. Each
-----------------------------------
Securityholder by accepting a Security authorizes and directs the Trustee on his
or her behalf to take such action as may be necessary or appropriate to
acknowledge or effectuate the subordination between the Securityholders and the
holders of Senior Indebtedness of each of the Subsidiary Guarantors as provided
in this Article 12 and appoints the Trustee as attorney-in-fact for any and all
such purposes.
Section 12.14. Trustee Not Fiduciary for Holders of Senior
-------------------------------------------
Indebtedness of a Subsidiary Guarantor. The Trustee shall not be deemed to owe
- --------------------------------------
any fiduciary duty to the holders of Senior Indebtedness of a Subsidiary
Guarantor and shall not be liable to any such holders if it shall mistakenly pay
over or distribute to Securityholders or the relevant Subsidiary Guarantor or
any other Person, money or assets to which any holders of Senior Indebtedness of
such Subsidiary Guarantor shall be entitled by virtue of this Article 12 or
otherwise.
Section 12.15. Reliance by Holders of Senior Indebtedness of a
-----------------------------------------------
Subsidiary Guarantor on Subordination Provisions. Each Securityholder by
- ------------------------------------------------
accepting a Security acknowledges and agrees that the foregoing subordination
provisions are, and are intended to be, an inducement and a consideration to
each holder of any Senior Indebtedness of a Subsidiary Guarantor, whether such
Senior Indebtedness was created or acquired before or after the issuance of the
Securities, to acquire and continue to hold, or to continue to hold, such Senior
Indebtedness and such holder of Senior Indebtedness shall be deemed conclusively
to have relied on such subordination provisions in acquiring and continuing to
hold, or in continuing to hold, such Senior Indebtedness.
Section 12.16. Defeasance. The terms of this Article 12 shall not
----------
apply to payments from money or the proceeds of U.S. Government Obligations held
in trust by the Trustee for the payment of principal of and interest on the
Securities pursuant to the provisions described in Section 8.03.
-79-
ARTICLE 13
Satisfaction and Discharge
Section 13.01. Satisfaction and Discharge of Indenture. This Indenture
---------------------------------------
shall be discharged and shall cease to be of further effect (except as to
surviving rights of registration of transfer or exchange of Securities as
expressly provided for herein) as to all outstanding Securities hereunder, and
the Trustee, upon Company Request and at the expense of the Company, shall
execute proper instruments acknowledging satisfaction and discharge of this
Indenture, when
(a) either (1) all such Securities theretofore authenticated and
delivered (other than lost, stolen or destroyed Securities which have been
replaced or paid as provided in Section 2.08) have been delivered to the Trustee
for cancellation; or (2) all Securities not theretofore delivered to the Trustee
for cancellation (x) have become due and payable, (y) will become due and
payable at their Stated Maturity within one year, or (z) 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 or any Subsidiary Guarantor has
irrevocably deposited or caused to be deposited with the Trustee as trust funds
in trust an amount in United States dollars or direct obligations of, or
obligations the principal of and interest on which are unconditionally
guaranteed by, the United States of America (or by any agency thereof to the
extent such obligations are backed by the full faith and credit of the United
States of America), in each case maturing prior to the date the Securities have
become due and payable, the Stated Maturity of the Securities or the relevant
redemption date for the Notes, as the case may be, sufficient to pay and
discharge the entire Indebtedness on the Securities not theretofore delivered to
the Trustee for cancellation, including the principal of, premium, if any, and
accrued interest at maturity, Stated Maturity or redemption date;
(b) the Company or any Subsidiary Guarantor has paid or caused to be
paid all other sums payable hereunder by the Company and any Subsidiary
Guarantor; and
(c) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that (i) all conditions precedent herein
relating to the satisfaction and discharge hereof have been complied with and
(ii) such satisfaction and discharge will not result in a breach or violation
of, or constitute a default under, this Indenture or any other material
agreement or instrument to which the Company, any Subsidiary Guarantor or any
Subsidiary is a party or by which the Company, any Subsidiary Guarantor or any
of the Company's Subsidiaries is bound.
Notwithstanding the satisfaction and discharge hereof, the obligations
of the Company to the Trustee under Section 7.07 and, if United States dollars
shall have been deposited with the Trustee pursuant to subclause (2) of
subsection (a) of this Section 13.01, the obligations of the Trustee under
Section 13.02 shall survive.
Section 13.02. Application of Trust Money. Subject to the provisions
--------------------------
of the last paragraph of Section 2.05, all United States dollars deposited with
the Trustee pursuant to
-80-
Section 13.1 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 of, premium, if any, and interest on, the Securities for whose payment
such United States dollars have been deposited with the Trustee.
ARTICLE 14
Miscellaneous
Section 14.01. Trust Indenture Act Controls. If any provision of this
----------------------------
Indenture limits, qualifies or conflicts with another provision which is
required to be included in this Indenture by the TIA, the required provision
shall control.
Section 14.02. Notices. Any notice or communication shall be in
-------
writing and delivered in person or mailed by first-class mail addressed as
follows:
if to the Company:
TeleCorp PCS, Inc.
1010 N. Glebe Road, Suite 800
Arlington, VA 22201
(703) 236-1100
Attention of: Thomas H. Sullivan, Esq.
if to the Trustee:
Firstar Bank, N.A.
101 East Fifth Street
St. Paul, Minnesota 55101
Attention of: Corporate Trust Department
The Company or the Trustee by notice to the other may designate
additional or different addresses for subsequent notices or communications.
Any notice or communication mailed to a Securityholder shall be mailed
to the Securityholder at the Securityholder's address as it appears on the
registration books of the Registrar and shall be sufficiently given if so mailed
within the time prescribed.
Failure to mail a notice or communication to a Securityholder or any
defect in it shall not affect its sufficiency with respect to other
Securityholders. If a notice or communication is mailed in the manner provided
above, it is duly given, whether or not the addressee receives it.
Section 14.03. Communication by Holders with Other Holders.
-------------------------------------------
Securityholders may communicate pursuant to Section 312(b) of the TIA with other
Securityholders with respect
-81-
to their rights under this Indenture or the Securities. The Company, the
Trustee, the Registrar and anyone else shall have the protection of Section
312(c) of the TIA.
Section 14.04. Certificate and Opinion as to Conditions Precedent.
--------------------------------------------------
Upon any request or application by the Company to the Trustee to take or refrain
from taking any action under this Indenture, the Company shall furnish to the
Trustee:
(1) an Officers' Certificate in form and substance reasonably
satisfactory to the Trustee stating that, in the opinion of the signers,
all conditions precedent, if any, provided for in this Indenture relating
to the proposed action have been complied with; and
(2) an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee stating that, in the opinion of such counsel,
all such conditions precedent have been complied with.
Section 14.05. Statements Required in Certificate or Opinion. Each
---------------------------------------------
certificate or opinion with respect to compliance with a covenant or condition
provided for in this Indenture shall include:
(1) a statement that the individual making such certificate or opinion
has read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of such individual, he has made
such examination or investigation as is necessary to enable him to express
an informed opinion as to whether or not such covenant or condition has
been complied with; and
(4) a statement as to whether or not, in the opinion of such
individual, such covenant or condition has been complied with.
Section 14.06. When Securities Disregarded. In determining whether the
---------------------------
Holders of the required Accreted Value have concurred in any direction, waiver
or consent, Securities owned by the Company, any Subsidiary Guarantor or by any
Person directly or indirectly controlling or controlled by or under direct or
indirect common control with the Company or any Subsidiary Guarantor shall be
disregarded and deemed not to be outstanding, except that, for the purpose of
determining whether the Trustee shall be protected in relying on any such
direction, waiver or consent, only Securities which the Trustee knows are so
owned shall be so disregarded. Subject to the foregoing, only Securities
outstanding at the time shall be considered in any such determination.
Section 14.07. Rules by Trustee, Paying Agent and Registrar. The
--------------------------------------------
Trustee may make reasonable rules for action by or a meeting of Securityholders.
The Registrar and the Paying Agent may make reasonable rules for their
functions.
-82-
Section 14.08. Legal Holidays. If a payment date is a Legal Holiday,
--------------
payment shall be made on the next succeeding day that is not a Legal Holiday,
and no interest shall accrue for the intervening period. If a regular record
date is a Legal Holiday, the record date shall not be affected.
Section 14.09. GOVERNING LAW. THIS INDENTURE AND THE SECURITIES
-------------
SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
NEW YORK BUT WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW
TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE
REQUIRED THEREBY.
Section 14.10. No Recourse Against Others. A director, officer,
--------------------------
employee or stockholder, as such, of the Company shall not have any liability
for any obligations of the Company under the Securities or this Indenture or for
any claim based on, in respect of or by reason of such obligations or their
creation. By accepting a Security, each Securityholder shall waive and release
all such liability. The waiver and release shall be part of the consideration
for the issue of the Securities.
Section 14.11. Successors. All agreements of the Company and each
----------
Subsidiary Guarantor in this Indenture and the Securities shall bind its
successors. All agreements of the Trustee in this Indenture shall bind its
successors.
Section 14.12. Multiple Originals. The parties may sign any number of
------------------
copies of this Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement. One signed copy is enough to prove this
Indenture.
Section 14.13. Table of Contents; Headings. The table of contents,
---------------------------
cross- reference sheet and headings of the Articles and Sections of this
Indenture have been inserted for convenience of reference only, are not intended
to be considered a part hereof and shall not modify or restrict any of the terms
or provisions hereof.
Section 14.14. Acts of Securityholders. (a) Any request, demand,
-----------------------
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be given or taken by Securityholders or Securityholders of any
Tranche may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Securityholders in person or by an
agent duly appointed in writing or may be embodied in or evidenced by an
electronic transmission which identifies the documents containing the proposal
on which such consent is requested and certifies such Securityholders' consent
thereto and agreement to be bound thereby; and, except as herein otherwise
expressly provided, such action shall become effective when such instrument or
instruments are delivered to the Trustee, and, where it is hereby expressly
required, to the Company.
(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 to such
execution or by the certificate of any notary public or other officer authorized
by law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution
-83-
thereof. Where such execution is by an officer of a corporation or a member of a
partnership, on behalf of such corporation or partnership, such certificate or
affidavit shall also constitute sufficient proof of his authority. The fact and
date of the execution of any such instrument or writing, or the authority of the
person executing the same, may also be proved in any other manner which the
Trustee deems sufficient.
(c) The ownership of Securities shall be proved by the Security
Register.
(d) If the Company shall solicit from the Holders any request, demand,
authorization, direction, notice, consent, waiver or other action, the Company
may, at its option, by resolution of the board of directors of the Company, fix
in advance a record date for the determination of Holders entitled to give such
request, demand, authorization, direction, notice, consent, waiver or other
action, but the Company shall have no obligation to do so. Such record date
shall be the later of 10 days prior to the first solicitation of such action or
the date of the most recent list of Holders furnished to the Trustee pursuant to
Section 2.05. If such a record date is fixed, such request, demand,
authorization, direction, notice, consent, waiver or other action may be given
before or after the record date, but only the Holders of record at the close of
business on the record date shall be deemed to be Holders for the purposes of
determining whether Holders of the requisite proportion of Securities
outstanding have authorized or agreed or consented to such request, demand,
authorization, direction, notice, consent, waiver or other action, and for that
purpose the Securities outstanding shall be computed as of the record date;
provided that no such authorization, agreement or consent by the Holders on the
record date shall be deemed effective unless it shall become effective pursuant
to the provisions of this Indenture not later than six months after the record
date, and that no such authorization, agreement or consent may be amended,
withdrawn or revoked once given by a Holder, unless the Company shall provide
for such amendment, withdrawal or revocation in conjunction with such
solicitation of authorizations, agreements or consents or unless and to the
extent required by applicable law.
(e) Any request, demand, authorization, direction, notice, consent,
waiver or other action by the Holder of any Security shall bind 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 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.
-84-
IN WITNESS WHEREOF, the parties have caused this Indenture to be duly
executed as of the date first written above.
TELECORP PCS, INC.,
by /s/ Thomas H. Sullivan
__________________________________
Name: Thomas H. Sullivan
Title: Executive Vice President and Chief
Financial Officer
FIRSTAR BANK, N.A., as Trustee,
by /s/ Frank Leslie
__________________________________
Name: Frank Leslie
Title: Vice President