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Exhibit 4.17
SPECTRASITE HOLDINGS, INC.
as Issuer
and
UNITED STATES TRUST COMPANY OF NEW YORK
as Trustee
INDENTURE
Dated as of December 20, 2000
12 1/2% Senior Notes due 2010
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TABLE OF CONTENTS
Page
ARTICLE I
SECTION 1.1. Definitions 1
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SECTION 1.2. Other Definitions 18
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SECTION 1.3. Incorporation by Reference of Trust Indenture Act 19
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SECTION 1.4. Rules of Construction 19
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SECTION 1.5. One Class of Notes 20
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ARTICLE II
SECTION 2.1. Form and Dating 20
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SECTION 2.2. Execution and Authentication 20
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SECTION 2.3. Registrar and Paying Agent 21
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SECTION 2.4. Paying Agent to Hold Money in Trust 21
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SECTION 2.5. Noteholder Lists 22
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SECTION 2.6. [Intentionally Omitted] 22
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SECTION 2.7. Replacement Notes 22
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SECTION 2.8. Outstanding Notes 22
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SECTION 2.9. Temporary Notes 22
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SECTION 2.10. Cancellation 23
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SECTION 2.11. Defaulted Interest 23
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SECTION 2.12. CUSIP Numbers 23
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ARTICLE III
SECTION 3.1. Notices to Trustee 24
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SECTION 3.2. Selection of Notes to Be Redeemed 24
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SECTION 3.3. Notice of Redemption 24
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SECTION 3.4. Effect of Notice of Redemption 25
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SECTION 3.5. Deposit of Redemption Price 25
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SECTION 3.6. Notes Redeemed in Part 25
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ARTICLE IV
SECTION 4.1. Payment of Notes 25
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SECTION 4.2. SEC Reports 26
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SECTION 4.3. Limitation on Indebtedness 26
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SECTION 4.4. Limitation on Indebtedness and Preferred Stock of
Restricted Subsidiaries 28
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SECTION 4.5. Limitation on Restricted Payments 30
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SECTION 4.6. Limitation on Restrictions on Distributions from
Restricted Subsidiaries. 32
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SECTION 4.7. Limitation on Sale of Assets and Subsidiary Stock 32
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SECTION 4.8. Limitation on Transactions with Affiliates 35
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SECTION 4.9. Change of Control 36
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SECTION 4.10. Limitation on Sale or Issuance of Capital Stock of
Restricted Subsidiaries 37
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SECTION 4.11. Limitation on Liens 38
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SECTION 4.12. Limitation on Sale/Leaseback Transactions 38
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SECTION 4.13. Compliance with Laws 38
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SECTION 4.14. Compliance Certificate 38
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SECTION 4.15. Further Instruments and Acts 38
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SECTION 4.16. Maintenance of Office or Agency 39
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SECTION 4.17. Corporate Existence 39
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SECTION 4.18. Payment of Taxes and Other Claims 39
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SECTION 4.19. Maintenance of Properties and Insurance 39
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ARTICLE V
SECTION 5.1. When the Issuer May Merge or Transfer Assets 40
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ARTICLE VI
SECTION 6.1. Events of Default 41
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SECTION 6.2. Acceleration 43
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SECTION 6.3. Other Remedies 43
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SECTION 6.4. Waiver of Past Defaults 43
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SECTION 6.5. Control by Majority 43
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SECTION 6.6. Limitation on Suits 44
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SECTION 6.7. Rights of Holders to Receive Payment 44
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SECTION 6.8. Collection Suit by Trustee 44
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SECTION 6.9. Trustee May File Proofs of Claim 44
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SECTION 6.10. Priorities 45
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SECTION 6.11. Undertaking for Costs 45
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SECTION 6.12. Waiver of Stay or Extension Laws 45
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ARTICLE VII
SECTION 7.1. Duties of Trustee 46
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SECTION 7.2. Rights of Trustee 47
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SECTION 7.3. Individual Rights of Trustee 47
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SECTION 7.4. Trustee's Disclaimer 47
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SECTION 7.5. Notice of Defaults 48
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SECTION 7.6. Reports by Trustee to Holders 48
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SECTION 7.7. Compensation and Indemnity 48
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SECTION 7.8. Replacement of Trustee 49
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SECTION 7.9. Successor Trustee by Merger 50
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SECTION 7.10. Eligibility; Disqualification 50
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SECTION 7.11. Preferential Collection of Claims Against Issuer 50
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ARTICLE VIII
SECTION 8.1. Discharge of Liability on Notes; Defeasance 50
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SECTION 8.2. Conditions to Defeasance 51
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SECTION 8.3. Application of Trust Money 52
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SECTION 8.4. Repayment to Issuer 53
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SECTION 8.5. Indemnity for Government Obligations 53
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SECTION 8.6. Reinstatement 53
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ARTICLE IX
SECTION 9.1. Without Consent of Holders 53
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SECTION 9.2. With Consent of Holders 54
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SECTION 9.3. Compliance with Trust Indenture Act 55
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SECTION 9.4. Revocation and Effect of Consents and Waivers 55
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SECTION 9.5. Notation on or Exchange of Notes 55
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SECTION 9.6. Trustee to Sign Amendments 55
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SECTION 9.7. Payment for Consent 56
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ARTICLE X
SECTION 10.1. Trust Indenture Act Controls 56
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SECTION 10.2. Notices 56
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SECTION 10.3. Communication by Holders with Other Holders 57
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SECTION 10.4. Certificate and Opinion as to Conditions Precedent 57
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SECTION 10.5. Statements Required in Certificate or Opinion 57
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SECTION 10.6. When Notes Disregarded 57
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SECTION 10.7. Rules by Trustee, Paying Agent and Registrar 58
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SECTION 10.8. Legal Holidays 58
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SECTION 10.9. Governing Law 58
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SECTION 10.10. No Recourse Against Others 58
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SECTION 10.11. Successors 58
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SECTION 10.12. Multiple Originals 58
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Rule 144A/Regulation S Appendix
Exhibit 1 to Appendix - Form of Initial Note
Exhibit A - Form of Exchange Note and Private Exchange Note
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INDENTURE, dated as of December 20, 2000, between SPECTRASITE
HOLDINGS, INC., a Delaware corporation (as further defined below, the "Issuer"),
and UNITED STATES TRUST COMPANY OF NEW YORK, a bank and trust company organized
under New York banking law, as trustee (the "Trustee").
Each party agrees as follows for the benefit of the other
party and for the equal and ratable benefit of the Holders of the Issuer's
$200,000,000 aggregate principal amount of 12 1/2% Senior Notes due 2010 (the
"Initial Notes") and, if and when issued in exchange for Initial Notes as
provided in the Registration Rights Agreement (as defined in the Appendix
hereto), the Issuer's Series B 12 1/2% Senior Notes due 2010 (the "Exchange
Notes") and, if and when issued pursuant to a private exchange for Initial
Notes, the Issuer's Series B 12 1/2% Senior Notes Due 2010 (the "Private
Exchange Notes," together with the Initial Notes and the Exchange Notes, the
"Notes"):
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1. Definitions
"Adjusted EBITDA" as of any date of determination means the
sum of (i) the EBITDA of the Issuer for the four most recent full fiscal
quarters ending prior to such date, less the Issuer's Tower EBITDA for such
four-quarter period, plus (ii) the product of four times the Issuer's Tower
EBITDA for the most recent quarterly period, which Tower EBITDA for the most
recent quarterly period shall be determined on a pro forma basis after giving
effect to (A) all acquisitions or dispositions of assets made by the Issuer and
its Subsidiaries from the beginning of such quarter through and including such
date of determination (including any related financing transactions) as if such
acquisitions and dispositions had occurred at the beginning of such quarter, (B)
any new lease or Site Management Contract entered into by the Issuer or any
Restricted Subsidiary in the ordinary course of business with respect to Tower
Assets from the beginning of such quarter through and including such date of
determination as if such new lease or Site Management Contract had been signed
at the beginning of such quarter and the rent required by the terms of such
lease or Site Management Contract for such quarter had been received by the
Issuer or a Restricted Subsidiary during such quarter, (C) the loss from the
beginning of such quarter through and including such date of determination of
any lease or Site Management Contract of the Issuer or a Restricted Subsidiary
with respect to any Tower Assets that was in effect on the first day of such
quarter as if such lease or Site Management Contract had not been in effect
during such quarter and no rent under such lease had been received during such
quarter and (D) any rent increases received by the Issuer or any Restricted
Subsidiary during the period beginning on the first day of such quarter and
ending on the date of determination related to leases or Site Management
Contracts on Tower Assets as if such increased rental rate had been in effect at
the beginning of such quarter and such increased amount of rent had been
received by the Issuer or a Restricted Subsidiary during such quarter. For
purposes of making the computation referred to above, (1) acquisitions that have
been made by the Issuer or any of its Restricted Subsidiaries, including through
mergers or consolidations
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and including any related financing transactions, during the reference period or
subsequent to such reference period and on or prior to the date of determination
shall be deemed to have occurred on the first day of the reference period and
EBITDA for such reference period shall be calculated without giving effect to
clause (ii) of the proviso set forth in the definition of Consolidated Net
Income, and (2) the EBITDA attributable to discontinued operations, as
determined in accordance with GAAP, and operations or businesses disposed of
prior to the date of determination shall be excluded.
"Affiliate" of any specified Person means any other Person,
directly or indirectly, controlling or controlled by or under direct or indirect
common control with such specified Person. For the purposes of this definition,
"control" when used with respect to any 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.
"Asset Disposition" means any sale, lease, transfer or other
disposition (or series of related sales, leases, transfers or dispositions) by
the Issuer or any Restricted Subsidiary, including any disposition by means of a
merger, consolidation or similar transaction (each referred to for the purposes
of this definition as a "disposition"), of (i) any shares of Capital Stock of a
Restricted Subsidiary (other than directors' qualifying shares or shares
required by applicable law to be held by a Person other than the Issuer or a
Restricted Subsidiary), (ii) all or substantially all the assets of any division
or line of business of the Issuer or any Restricted Subsidiary or (iii) any
other assets of the Issuer or any Restricted Subsidiary outside of the ordinary
course of business of the Issuer or such Restricted Subsidiary (other than, in
the case of (i), (ii) and (iii) above, (u) a disposition by a Restricted
Subsidiary to the Issuer or by the Issuer or a Restricted Subsidiary to another
Restricted Subsidiary, (v) a disposition that constitutes a Restricted Payment
permitted by Section 4.5, (w) a disposition of assets with a fair market value
of less than $5.0 million, (x) any transaction not prohibited by Section 4.5 or
that constitutes a Permitted Investment, (y) grants of leases or licenses in the
ordinary course of business, and (z) disposals of cash equivalents).
"Attributable Indebtedness" in respect of a Sale/Leaseback
Transaction means, as at the time of determination, the present value
(discounted at the interest rate borne by the Notes, compounded annually) of the
total obligations of the lessee for rental payments during the remaining term of
the lease included in such Sale/Leaseback Transaction (including any period for
which such lease has been extended).
"Average Life" means, as of the date of determination, with
respect to any Indebtedness or Preferred Stock, the quotient obtained by
dividing (i) the sum of the product of the numbers of years from the date of
determination to the dates of each successive scheduled principal payment of
such Indebtedness or redemption or similar payment with respect to such
Preferred Stock multiplied by the amount of such payment by (ii) the sum of all
such payments.
"Board of Directors" means the Board of Directors of the
Issuer or any committee thereof duly authorized to act on behalf of such Board.
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"Business Day" means a day other than a Saturday, Sunday or
other day on which banking institutions in New York State are authorized or
required by law to close.
"Capitalized Lease Obligation" means an obligation that is
required to be classified and accounted for as a capitalized lease for financial
reporting purposes in accordance with GAAP, and the amount of Indebtedness
represented by such obligation shall be the capitalized amount of such
obligation determined in accordance with GAAP.
"Capital Stock" of any Person means any and all shares,
interests, rights to purchase, warrants, options, participation or other
equivalents of or interests in (however designated) equity of such Person,
including any Preferred Stock, but excluding any debt securities convertible
into such equity.
"Change of Control" means the occurrence of any of the
following events:
(i) any "person" (as such term is used in Sections 13(d) and
14(d) of the Exchange Act), other than one or more Permitted Holders,
is or becomes the beneficial owner (as such term is used in Rules
13(d)-3 and 13(d)-5 of the Exchange Act, except that for purposes of
this clause (i) such Person shall be deemed to have "beneficial
ownership" of all shares that any such person has the right to acquire,
whether such right is exercisable immediately or only after the passage
of time), directly or indirectly, of more than 35% of the total voting
power of the Voting Stock of the Issuer; provided, however, that the
Permitted Holders "beneficially own", directly or indirectly, in the
aggregate a lesser percentage of the total voting power of the Voting
Stock of the Issuer than such other Person and do not have the right or
ability by voting power, contract or otherwise to elect or designate
for election a majority of the Board of Directors (for the purposes of
this clause (i), (a) such other person shall be deemed to beneficially
own any Voting Stock of a specified entity held by a parent entity, if
such other person is the beneficial owner, directly or indirectly, of
more than 35% of the voting power of the Voting Stock of such parent
entity and the Permitted Holders "beneficially own", directly or
indirectly, in the aggregate a lesser percentage of the total voting
power of the Voting Stock of such parent entity than such other Person,
and do not have the right or ability by voting power, contract or
otherwise to elect or designate for election a majority of the board of
directors of such parent entity; and (b) the Permitted Holders shall be
deemed to beneficially own any Voting Stock of an entity held by any
other parent entity, so long as the Permitted Holders beneficially own,
directly or indirectly, in the aggregate, a majority of the voting
power of the parent entity's Voting Stock);
(ii) during any period of two consecutive years (or, in the
case this event occurs within the first two years after the Issue Date,
such shorter period as shall have begun on the Issue Date), individuals
who at the beginning of such period constituted the Board of Directors
(together with any new directors whose election by such Board of
Directors or whose nomination for election by the shareholders of the
Issuer was approved by a vote of a majority of the directors of the
Issuer then still in office who were either directors at the beginning
of such period or whose election or nomination for election was
previously so approved) cease for any reason to constitute a majority
of the Board of Directors then in office;
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(iii) the merger or consolidation of the Issuer with or into
another Person or the merger of another Person with or into the Issuer,
and, in the case of any such merger or consolidation, the securities of
the Issuer that are outstanding immediately prior to such transaction
and which represent 100% of the aggregate voting power of the Voting
Stock of the Issuer are changed into or exchanged for cash, securities
or property, unless pursuant to such transaction such securities are
changed into or exchanged for, in addition to any other consideration,
securities of the surviving corporation that represent immediately
after such transaction, at least a majority of the aggregate voting
power of the Voting Stock of the surviving corporation; and
(iv) the sale of all or substantially all of the Issuer's
assets to another person, other than a Permitted Holder or a Person
that is controlled by the Permitted Holders.
"Code" means the Internal Revenue Code of 1986, as amended.
"Completed Broadcast Tower" means a communications tower of at
least 500 feet, other than a Completed Tower, with, as of the date of
determination, (i) at least one broadcast tenant that has executed a definitive
lease or Site Management Contract with the Issuer or any of its Restricted
Subsidiaries and (ii) capacity for at least one other tenant.
"Completed Tower" means a communications transmission tower
with, as of any date of determination, (i) at least one anchor tenant that has
executed a definitive lease or Site Management Contract with the Issuer or any
of its Restricted Subsidiaries and (ii) capacity for at least three tenants.
"Consolidated Indebtedness" as of any date of determination
means (without duplication) (i) the total amount of Indebtedness of the Issuer
and its Restricted Subsidiaries, (ii) the total amount of Indebtedness of any
other Person, to the extent that such Indebtedness has been Guaranteed by the
Issuer or one or more of its Restricted Subsidiaries, and (iii) the aggregate
liquidation value of all Disqualified Stock of the Issuer and all preferred
stock of Restricted Subsidiaries of the Issuer not owned by the Issuer or a
Restricted Subsidiary, in each case, determined on a consolidated basis in
accordance with GAAP.
"Consolidated Interest Expense" means, for any period, the
total interest expense of the Issuer and its consolidated Restricted
Subsidiaries, plus, to the extent not included in such total interest expense,
and to the extent incurred by the Issuer or its Restricted Subsidiaries, without
duplication, (i) interest expense attributable to capital leases and to leases
constituting part of a Sale/Leaseback Transaction, (ii) amortization of debt
discount and debt issuance cost, (iii) capitalized interest, (iv) non-cash
interest expense, (v) commissions, discounts and other fees and charges owed
with respect to letters of credit and bankers' acceptance financing, (vi) net
costs associated with Hedging Obligations (including amortization of fees),
(vii) Preferred Stock dividends paid in respect of all Preferred Stock of the
Issuer and its Subsidiaries held by Persons other than the Issuer or a Wholly
Owned Subsidiary, (viii) interest incurred in connection with Investments in
discontinued operations, (ix) interest accruing on any Indebtedness of any other
Person to the extent such Indebtedness is Guaranteed by (or secured by the
assets of) the Issuer or any Restricted Subsidiary and (x) the cash
contributions to any employee stock ownership plan or similar trust to the
extent such contributions are used by such plan or trust to pay interest
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or fees to any Person (other than the Issuer) in connection with Indebtedness
Incurred by such plan or trust.
"Consolidated Net Income" means, for any period, the net
income (loss) of the Issuer and its consolidated Subsidiaries; provided,
however, that there shall not be included in such Consolidated Net Income:
(i) any net income (loss) of any Person (other than the
Issuer) if such Person is not a Restricted Subsidiary, except that,
subject to the exclusion contained in (iv) below, the Issuer's equity
in the net income of any such Person for such period shall be included
in such Consolidated Net Income up to the aggregate amount of cash
actually distributed by such Person during such period to the Issuer or
a Restricted Subsidiary as a dividend or other distribution (subject,
in the case of a dividend or other distribution paid to a Restricted
Subsidiary, to the limitations contained in clause (iii) below);
(ii) any net income (loss) of any Person acquired by the
Issuer or a Subsidiary in a pooling of interests transaction for any
period prior to the date of such acquisition;
(iii) any net income of any Restricted Subsidiary if such
Restricted Subsidiary is subject to restrictions (other than any
restrictions permitted in Section 4.6), directly or indirectly, on the
payment of dividends or the making of distributions by such Restricted
Subsidiary, directly or indirectly, to the Issuer, except that (A)
subject to the exclusion contained in clause (iv) below the Issuer's
equity in the net income of any such Restricted Subsidiary for such
period shall be included in such Consolidated Net Income up to the
aggregate amount of cash actually distributed by such Restricted
Subsidiary during such period to the Issuer or another Restricted
Subsidiary as a dividend or other distribution (subject, in the case of
a dividend or other distribution paid to another Restricted Subsidiary,
to the limitation contained in this clause) and (B) solely for purposes
of calculating the Indebtedness to Adjusted EBITDA Ratio, the Issuer's
equity in a net loss of any such Restricted Subsidiary for such period
shall be included in determining such Consolidated Net Income;
(iv) any gain or loss realized upon the sale or other
disposition of any assets of the Issuer, its consolidated Subsidiaries
or any other Person (including pursuant to any Sale/Leaseback
Transaction) which is not sold or otherwise disposed of in the ordinary
course of business and any gain or loss realized upon the sale or other
disposition of any Capital Stock of any Person;
(v) any net income or loss of any Unrestricted Subsidiary,
except to the extent distributed to the Issuer or one of its
Subsidiaries;
(vi) any extraordinary gain or loss; and
(vii) the cumulative effect of a change in accounting
principles.
Notwithstanding the foregoing, for the purposes of Section 4.5 only, there shall
be excluded from Consolidated Net Income any dividends, repayments of loans or
advances or other transfers of assets from Unrestricted Subsidiaries to the
Issuer or a Restricted Subsidiary to the extent such
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dividends, repayments or transfers increase the amount of Restricted Payments
permitted under such covenant pursuant to clause (a)(3)(D) thereof.
"Consolidated Tangible Assets" means, with respect to the
Issuer, the total consolidated tangible assets of the Issuer and its Restricted
Subsidiaries, as shown on the most recent internal consolidated balance sheet of
the Issuer and such Restricted Subsidiaries calculated on a consolidated basis
in accordance with GAAP.
"Convertible Notes" means the Issuer's 6 3/4% Senior
Convertible Notes Due 2010.
"Credit Facility" means any debt or credit facility or
commercial paper facility providing for revolving credit loans, term loans,
accounts receivable financing (including through the sale of accounts receivable
to such lenders or to special purpose entities formed to borrow from such
lenders against such accounts receivable) or letters of credit, or other
non-convertible debt securities or other form of debt financing, in each case,
as amended, restated, supplemented, extended, modified, renewed, refunded,
replaced or refinanced in whole or in part from time to time, including any such
amendment, restatement, supplement, extension, modification, renewal, refunding,
replacement or refinancing that increases the amount borrowable thereunder or
alters the maturity thereof.
"Currency Agreement" means in respect of a Person any foreign
exchange contract, currency swap agreement or other similar agreement designed
to protect such Person against fluctuations in currency values as to which such
Person is a party or a beneficiary.
"Default" means any event which is, or after notice or passage
of time or both would be, an Event of Default.
"Disqualified Stock" means, with respect to any Person, any
Capital Stock which by its terms (or by the terms of any security into which it
is convertible or for which it is exchangeable) or upon the happening of any
event (i) matures or is mandatorily redeemable pursuant to a sinking fund
obligation or otherwise, (ii) is convertible or exchangeable at the option of
the holder thereof for Indebtedness or Disqualified Stock or (iii) is redeemable
at the option of the holder thereof, in whole or in part, in each case on or
prior to the 91st day after the Stated Maturity of the Notes; 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 91st day after the Stated Maturity
of the Notes shall not constitute Disqualified Stock if the "asset sale" or
"change of control" provisions applicable to such Capital Stock are not
materially more favorable taken as a whole to the holders of such Capital Stock
than the provisions described under Section 4.9 and Section 4.7.
"EBITDA" for any period means the sum of Consolidated Net
Income, plus the following to the extent deducted in calculating such
Consolidated Net Income: (a) Consolidated Interest Expense; (b) all income tax
expense of the Issuer and its consolidated Restricted Subsidiaries; (c)
depreciation expense of the Issuer and its consolidated Restricted Subsidiaries;
(d) amortization expense of the Issuer and its consolidated Restricted
Subsidiaries (excluding amortization expense attributable to a prepaid cash item
that was paid in a prior period); (e) all
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other non-cash charges of the Issuer and its consolidated Restricted
Subsidiaries (excluding any such non-cash charge to the extent that it
represents an accrual of or reserve for cash expenditures in any future period);
and (f) any premium or penalty paid in connection with repurchasing, redeeming,
retiring, defeasing or acquiring any Indebtedness prior to maturity to the
extent deducted in calculating Consolidated Net Income, in each case for such
period. Notwithstanding the foregoing, the provision for taxes based on the
income or profits of, and the depreciation and amortization and non-cash charges
of, a Restricted Subsidiary shall be added to the Consolidated Net Income to
compute EBITDA only to the extent (and in the same proportion) that the net
income of such Restricted Subsidiary was included in calculating Consolidated
Net Income and only if a corresponding amount would be permitted at the date of
determination to be paid to the Issuer in the form of a dividend by such
Restricted Subsidiary without prior approval (that has not been obtained),
pursuant to the terms of its charter and all agreements, instruments, judgments,
decrees, orders, statutes, rules and governmental regulations applicable to such
Restricted Subsidiary or its stockholders, without in any event giving effect to
any restrictions or limitations permitted in Section 4.6.
"Equity Offering" means a public or private issuance by the
Issuer of common stock of the Issuer for cash.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"GAAP" means generally accepted accounting principles in the
United States of America as in effect as of the Issue Date, including those set
forth in (i) the opinions and pronouncements of the Accounting Principles Board
of the American Institute of Certified Public Accountants, (ii) statements and
pronouncements of the Financial Accounting Standards Board, (iii) such other
statements by such other entity as approved by a significant segment of the
accounting profession and (iv) the rules and regulations of the SEC governing
the inclusion of financial statements (including pro forma financial statements)
in periodic reports required to be filed pursuant to Section 13 of the Exchange
Act, including opinions and pronouncements in staff accounting bulletins and
similar written statements from the accounting staff of the SEC.
"Guarantee" means any obligation, contingent or otherwise, of
any Person directly or indirectly guaranteeing any Indebtedness of any Person
and any obligation, direct or indirect, contingent or otherwise, of such Person
(i) to purchase or pay (or advance or supply funds for the purchase or payment
of) such Indebtedness or other obligation of such Person (whether arising by
virtue of partnership arrangements, or by agreements to keep-well, to purchase
assets, goods, securities or services, to take-or-pay or to maintain financial
statement conditions or otherwise) or (ii) entered into for the purpose of
assuring in any other manner the obligee of such Indebtedness of the payment
thereof or to protect such obligee against loss in respect thereof (in whole or
in part); provided, however, that the term "Guarantee" shall not include
endorsements for collection or deposit in the ordinary course of business. The
term "Guarantee" used as a verb has a corresponding meaning.
"Hedging Obligations" of any Person means the actual
obligations of such Person pursuant to any Interest Rate Agreement or Currency
Agreement.
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"Holder" or "Noteholder" means the Person in whose name a Note
is registered on the Registrar's books.
"Incur" means issue, assume, Guarantee, incur or otherwise
become liable for; provided, however, that any Indebtedness or Capital Stock of
a Person existing at the time such Person becomes a Subsidiary (whether by
merger, consolidation, acquisition or otherwise) shall be deemed to be Incurred
by such Subsidiary at the time it becomes a Subsidiary unless such Indebtedness
or Capital Stock is repaid or redeemed on the date such Person becomes a
Subsidiary. The term "Incurrence" when used as a noun shall have a correlative
meaning.
"Indebtedness" means, with respect to any Person on any date
of determination (without duplication):
(i) the principal in respect of (A) indebtedness of such
Person for money borrowed and (B) indebtedness evidenced by notes,
debentures, bonds or other similar instruments for the payment of which
such Person is responsible or liable, including, in each case, any
premium on such indebtedness to the extent such premium has become due
and payable;
(ii) all Capitalized Lease Obligations of such Person and all
Attributable Debt in respect of Sale/Leaseback Transactions entered
into by such Person;
(iii) all obligations of such Person issued or assumed as the
deferred purchase price of property, all conditional sale obligations
of such Person and all obligations of such Person under any title
retention agreement (but excluding trade accounts payable arising in
the ordinary course of business);
(iv) all obligations of such Person for the reimbursement of
any obligor on any letter of credit, banker's acceptance or similar
credit transaction (other than obligations with respect to letters of
credit and other contingent liabilities (but only to the extent such
contingent liabilities are not reflected as liabilities on the
consolidated balance sheet of such Person) securing obligations (other
than obligations described in clauses (i) through (iii) above) entered
into in the ordinary course of business of such Person to the extent
such letters of credit are not drawn upon or, if and to the extent
drawn upon, such drawing is reimbursed no later than the tenth Business
Day following payment on the letter of credit);
(v) the amount of all obligations of such Person with respect
to the redemption, repayment or other repurchase of any Disqualified
Stock or, with respect to any Subsidiary of such Person, the
liquidation preference with respect to, any Preferred Stock (but
excluding, in each case, any accrued dividends);
(vi) all obligations of the type referred to in clauses (i)
through (v) above, of other Persons and all dividends of other Persons
for the payment of which, in either case, such Person is responsible or
liable, directly or indirectly, as obligor, guarantor or otherwise,
including by means of any Guarantee;
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(vii) all obligations of the type referred to in clauses (i)
through (vi) above, of other Persons secured by any Lien on any
property or asset of such Person (whether or not such obligation is
assumed by such Person), the amount of such obligation being deemed to
be the lesser of the value of such property or assets or the amount of
the obligation so secured; and
(viii) to the extent not otherwise included in this
definition, Hedging Obligations of such Person.
The amount of Indebtedness of any Person at any date shall be the outstanding
balance at such date of all unconditional obligations as described above or the
accreted value thereof, in the case of Indebtedness issued with original issue
discount, and the maximum liability, upon the occurrence of the contingency
giving rise to the obligation, of any contingent obligations at such date.
"Indebtedness to Adjusted EBITDA Ratio" as of any date of
determination means the ratio of (i) Consolidated Indebtedness as of such date
to (ii) Adjusted EBITDA.
"Indenture" means this Indenture, as amended or supplemented
from time to time.
"Interest Rate Agreement" means with respect to any Person any
interest rate protection agreement, interest rate future agreement, interest
rate option agreement, interest rate swap agreement, interest rate cap
agreement, interest rate collar agreement, interest rate hedge agreement or
other similar agreement or arrangement designed to protect such Person against
fluctuations in interest rates as to which such Person is a party or a
beneficiary.
"Investment" in any Person means any direct or indirect
advance, loan (other than advances to customers, lessees or licensees in the
ordinary course of business that are recorded as accounts receivable on the
balance sheet of such Person) or other extension of credit (including by way of
Guarantee or similar arrangement) or capital contribution to (by means of any
transfer of cash or other property to others or any payment for property or
services for the account or use of others), or any purchase or acquisition of
Capital Stock, Indebtedness or other similar instruments issued by such Person.
For purposes of the definitions of "Unrestricted Subsidiary" and "Restricted
Payment" and Section 4.5, (i) "Investment" shall include the portion
(proportionate to the Issuer's equity interest in such Subsidiary) of the fair
market value of the net assets of any Subsidiary of the Issuer at the time that
such Subsidiary is designated an Unrestricted Subsidiary; provided, however,
that upon a redesignation of such Subsidiary as a Restricted Subsidiary, the
Issuer shall be deemed to continue to have a permanent "Investment" in an
Unrestricted Subsidiary equal to an amount (if positive) equal to (x) the
Issuer's "Investment" in such Subsidiary at the time of such redesignation less
(y) the portion (proportionate to the Issuer's equity interest in such
Subsidiary) of the fair market value of the net assets of such Subsidiary at the
time that such Subsidiary is so re-designated a Restricted Subsidiary; and (ii)
any property transferred to or from an Unrestricted Subsidiary shall be valued
at its fair market value at the time of such transfer, in each case as
determined in good faith by the Board of Directors and evidenced by a resolution
of such Board of Directors.
"Issue Date" means the date on which the Notes are originally
issued.
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"Legal Holiday" has the meaning ascribed in Section 10.8.
"Lien" means any mortgage, pledge, security interest,
encumbrance, lien or charge of any kind (including any conditional sale or other
title retention agreement or lease in the nature thereof).
"Net Available Cash" from an Asset Disposition means cash
payments received (including any cash payments received by way of deferred
payment of principal pursuant to a note or installment receivable or otherwise
and proceeds from the sale or other disposition of any securities received as
consideration, but only as and when received, but excluding any other
consideration received in the form of assumption by the acquiring Person of
Indebtedness or other obligations relating to such properties or assets or
received in any other non cash form) therefrom, in each case net of (i) all
legal, title, accounting, investment banking and recording tax expenses,
commissions and other fees and expenses incurred, and all Federal, state,
provincial, foreign and local taxes required to be paid or accrued as a
liability under GAAP, as a consequence of such Asset Disposition, (ii) all
payments made on any Indebtedness which is secured by any assets subject to such
Asset Disposition, in accordance with the terms of any Lien upon or other
security arrangement of any kind with respect to such assets, or which must by
its terms, 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,
(iii) all distributions and other payments required to be made to minority
interest holders in Restricted Subsidiaries or joint ventures as a result of
such Asset Disposition, (iv) the deduction of appropriate amounts to be provided
by the seller as a reserve, in accordance with GAAP, against any liabilities
associated with the assets disposed of in such Asset Disposition and retained by
the Issuer or any Restricted Subsidiary after such Asset Disposition, and (v)
any reserves established in respect of the sales price of such asset for
post-closing adjustments, indemnification purposes or employee termination
expenses.
"Net Cash Proceeds", with respect to any issuance or sale of
Capital Stock, means the cash proceeds of such issuance or sale net of
attorneys' fees, accountants' fees, printing costs, underwriters' or placement
agents' fees, discounts or commissions and brokerage, consultant and other fees
and expenses actually incurred in connection with such issuance or sale and net
of taxes paid or payable as a result thereof.
"Non-Recourse Debt" means Indebtedness (i) as to which neither
the Issuer nor any Restricted Subsidiary (a) provides any Guarantee or credit
support of any kind (including any undertaking, Guarantee, indemnity, agreement
or instrument that would constitute Indebtedness) or (b) is directly or
indirectly liable (as a guarantor or otherwise) and (ii) no default with respect
to which (including any rights that the holders thereof may have to take
enforcement action against an Unrestricted Subsidiary) would permit (upon
notice, lapse of time or both) any holder of any other Indebtedness of the
Issuer or any Restricted Subsidiary to declare a default under such other
Indebtedness or cause the payment thereof to be accelerated or payable prior to
its stated maturity.
"Offering Memorandum" means the Offering Memorandum dated
December 15, 2000 relating to the Initial Notes; provided that after the
issuance of Exchange Notes, all
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references herein to "Offering Memorandum" shall be deemed references to the
prospectus contained in the registration statement relating to the Exchange
Notes.
"Officer" means the Chairman of the Board, the President, the
Chief Executive Officer, any Vice President, the Chief Financial Officer, the
Treasurer or the Secretary of the Issuer, as applicable.
"Officer's Certificate" means a certificate signed by any
Officer.
"Opinion of Counsel" means a written opinion that meets the
requirements of Section 10.5 hereof from Dow, Lohnes & Albertson, PLLC, or any
other legal counsel who is reasonably acceptable to the Trustee. The counsel may
be an employee of or counsel to the Issuer or the Trustee.
"Permitted Acquisition Indebtedness" means Indebtedness or
acquired debt in an aggregate principal amount not to exceed $50.0 million at
any one time outstanding, incurred or assumed in connection with the acquisition
of an entity that is engaged in a Permitted Business and that becomes a
Restricted Subsidiary or the acquisition of any assets constituting a business
or line of business as determined by the Board of Directors, that is a Permitted
Business or incurred by such entity or the owner of such assets and outstanding
on the date of such acquisition.
"Permitted Business" means any business conducted by the
Issuer and its Restricted Subsidiaries on the Issue Date and any other business
related, ancillary or complementary to any such business.
"Permitted Holders" means any or all of Stephen H. Clark,
David P. Tomick, Joe L. Finley, Welsh, Carson, Anderson & Stowe, VIII, L.P.,
WCAS Information Partners, L.P., WCAS Capital Partners III, L.P., their
respective general partners, employees of Welsh, Carson, Anderson & Stowe, CIBC
WG Argosy Merchant Fund 2, L.L.C., Co-Investment Merchant Fund 3, LLC, Caravelle
Investment Fund, L.L.C., Tower Parent Corp., Whitney Equity Partners, L.P., J.H.
Whitney III, L.P., Whitney Strategic Partners III, L.P., J.H. Whitney Mezzanine
Fund, L.P., Waller-Sutton Media Partners, L.P., Kitty Hawk Capital Limited
Partnership, III, Kitty Hawk Capital Limited Partnership, IV, Eagle Creek
Capital, L.L.C., The North Carolina Enterprise Fund, L.P., Finley Family Limited
Partnership, and their respective Affiliates.
"Permitted Investment" means an Investment by the Issuer or
any Restricted Subsidiary in (i) the Issuer, a Restricted Subsidiary or a Person
which will, upon the making of such Investment, become a Restricted Subsidiary;
(ii) another Person if as a result of such Investment such other Person is
merged or consolidated with or into, or transfers or conveys all or
substantially all its assets to, the Issuer or a Restricted Subsidiary;
provided, however, that such Person's primary business is a Permitted Business;
(iii) Temporary Cash Investments; (iv) receivables owing to the Issuer or any
Restricted Subsidiary, if created or acquired in the ordinary course of business
and payable or dischargeable in accordance with customary trade terms; provided,
however, that such trade terms may include such concessionary trade terms as the
Issuer or any such Restricted Subsidiary deems reasonable under the
circumstances; (v) payroll, travel and similar advances to cover matters that
are expected at the time of such
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advances ultimately to be treated as expenses for accounting purposes and that
are made in the ordinary course of business; (vi) loans or advances to employees
made in the ordinary course of business consistent with past practice of the
Issuer or such Restricted Subsidiary, but in any event not to exceed $2.0
million in the aggregate outstanding at any one time; (vii) stock, obligations
or securities received in settlement of debts created in the ordinary course of
business and owing to the Issuer or any Restricted Subsidiary or in satisfaction
of judgments or pursuant to any plan of reorganization or similar arrangement
upon the bankruptcy or insolvency of a debtor; (viii) any Person to the extent
such investment represents the non-cash portion of the consideration received
for an Asset Disposition as permitted pursuant to Section 4.7; (ix) Capital
Stock of the Issuer or any Restricted Subsidiary purchased, redeemed or
otherwise acquired or retired for value from members of the Issuer's management
or employees, but in any event not to exceed $2.0 million in aggregate in any
twelve-month period; (x) other Investments in Permitted Businesses not to
exceed, at any one time outstanding (each such Investment being measured as of
the date made and without giving effect to subsequent changes in value), the sum
of (x) $10.0 million and 10% of the Issuer's Consolidated Tangible Assets; (xi)
any Interest Rate Agreement or Currency Agreement; (xii) any acquisition of
assets to the extent the consideration therefor consists of Capital Stock (other
than Disqualified Stock) of the Issuer; (xiii) prepaid expenses, negotiable
instruments held for collection and lease, utility and workers' compensation,
performance and other similar deposits; (xiv) deposits of proceeds or Qualified
Proceeds from Asset Dispositions with a "qualified intermediary," "qualified
trustee" or similar person for purposes of facilitating a "like-kind" exchange
made in accordance with the applicable provisions of the Code; provided,
however, that the making of any Permitted Investment pursuant to this clause
(xiv) will not in any manner violate Section 4.7; (xv) Investments in an amount
not to exceed the Net Cash Proceeds or Qualified Proceeds of the issuance or
sale, other than to a Subsidiary of the Issuer, of Capital Stock of the Issuer,
other than Disqualified Stock, to the extent that such Net Cash Proceeds or
Qualified Proceeds have not been applied to make a Restricted Payment or to
effect other transactions pursuant to Section 4.5 or to the extent such Net Cash
Proceeds or Qualified Proceeds have not been used to Incur Indebtedness; and
(xvi) other Investments not to exceed, at any one time outstanding, $75.0
million.
"Permitted Liens" means, with respect to any person, (a)
pledges or deposits by such Person under worker's compensation laws,
unemployment insurance laws or similar legislation, or good faith deposits in
connection with bids, tenders, contracts (other than for the payment of
Indebtedness) or leases to which such Person is a party, or deposits to secure
public or statutory obligations of such Person or deposits or cash or United
States government bonds to secure surety or appeal bonds to which such Person is
a party, or deposits as security for contested taxes or import duties or for the
payment of rent, in each case incurred in the ordinary course of business; (b)
Liens imposed by law, such as carriers', warehousemen's, landlords' and
mechanics' Liens, in each case for sums not yet due or being contested in good
faith by appropriate proceedings, or judgment Liens not giving rise to an Event
of Default so long as any appropriate legal proceedings which may have been duly
initiated for the review of such judgment shall not have been finally terminated
or the period within which such proceedings may be initiated shall not have
expired; (c) Liens for property taxes not yet subject to penalties for
non-payment or which are being contested in good faith by appropriate
proceedings; (d) Liens in favor of issuers of surety bonds or letters of credit
issued pursuant to the request of and for the account of such Person in the
ordinary course of its business; (e) survey exceptions, encumbrances, easements
or reservations of, or rights of others for, licenses, rights of way,
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sewers, electric lines, telegraph and telephone lines and other similar
purposes, or zoning or other restrictions as to the use of real properties or
liens incidental to the conduct of the business of such Person or to the
ownership of its properties which were not incurred in connection with
Indebtedness and which do not in the aggregate materially adversely affect the
value of said properties or materially impair their use in the operation of the
business of such Person; (f) Liens securing Hedging Obligations so long as the
related Indebtedness is, and is permitted to be under this Indenture, secured by
a Lien on the same property securing such Hedging Obligations; (g) leases and
subleases of real property which do not interfere with the ordinary conduct of
the business of the Issuer or any of its Restricted Subsidiaries, and Liens
securing the obligations (other than Indebtedness) of the Issuer or any of the
Restricted Subsidiaries under any such leases and subleases of real property;
(h) Liens existing as of the date on which the Notes are originally issued and
Liens created by this Indenture; (i) Liens created solely for the purpose of
securing the payment of all or part of the purchase price of assets or property
acquired or constructed in the ordinary course of business after the date on
which the Notes are originally issued; provided, however, that (A) the
Indebtedness secured by such Liens shall have otherwise been permitted to be
issued under this Indenture and (B) such Liens shall not encumber any other
assets or property of the Issuer or any of its Restricted Subsidiaries; (j)
Liens on the assets or property of a Restricted Subsidiary of the Issuer
existing at the time such Restricted Subsidiary became a Subsidiary of the
Issuer and not incurred as a result of (or in connection with or in anticipation
of) such Restricted Subsidiary becoming a Subsidiary of the Issuer; provided,
however, that (A) any such Lien does not by its terms cover any property or
assets after the time such Restricted Subsidiary becomes a Subsidiary which were
not covered immediately prior to such transaction, (B) the Incurrence of the
Indebtedness secured by such Lien shall have otherwise been permitted to be
issued under this Indenture, and (C) such Liens do not extend to or cover any
other property or assets of the Issuer or any of its Restricted Subsidiaries;
(k) Liens securing Indebtedness outstanding under a Credit Facility and any
other Liens securing Indebtedness permitted under this Indenture to be Incurred
by a Restricted Subsidiary; (l) Liens extending, renewing or replacing in whole
or in part a Lien permitted by this Indenture; provided, however, that (A) such
Liens do not extend beyond the property subject to the existing Lien and
improvements and construction on such property and (B) the Indebtedness secured
by the Lien may not exceed the Indebtedness secured at the time by the existing
Lien; (m) Liens Incurred in the ordinary course of business by the Issuer or any
Restricted Subsidiary of the Issuer with respect to obligations that do not
exceed $25.0 million at any one time outstanding and that (i) are not Incurred
in connection with the borrowing of money or the obtaining of advances of credit
(other than trade credit in the ordinary course of business) and (ii) do not in
the aggregate materially detract from the value of the property or materially
impair the use thereof in the operation of business by the Issuer or such
Restricted Subsidiary; (n) Liens in favor of the Issuer or a Restricted
Subsidiary; (o) any interest in or title of a lessor to any property subject to
a Capitalized Lease Obligation permitted to be Incurred under this Indenture;
(p) Liens on the Capital Stock of Unrestricted Subsidiaries; (q) the Liens
granted pursuant to the terms of the Security and Subordination Agreement, as
amended, modified or supplemented from time to time, entered into pursuant to
the terms of the Agreement and Plan of Merger, dated as of February 10, 1999,
among the Issuer, SpectraSite Communications, Inc., SHI Merger Sub, Inc., Nextel
Communications, Inc. and certain of its subsidiaries; (r) Liens, rights of
set-off or similar rights and remedies as to deposit accounts or other funds
maintained with a depository or other financial institution; (s) Liens on
property subject to Capitalized Lease Obligations to the extent
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the related Capitalized Lease Obligation is permitted to be incurred under
Section 4.3 or Section 4.4 of this Indenture; (t) Liens on property of the
Issuer or a Restricted Subsidiary at the time the Issuer or Restricted
Subsidiary acquired the property, including any acquisition by means of a merger
or consolidation with or into the Issuer or any Restricted Subsidiary; provided,
however, that such Liens are not created, incurred or assumed in connection
with, or in contemplation of, such acquisition, provided further, however, that
such Liens may not extend to any other property owned by the Issuer or any
Restricted Subsidiary; and (u) Liens on government securities that secure
Indebtedness, to the extent that such government securities are purchased with
the proceeds of such Indebtedness.
"Person" means any individual, corporation, partnership, joint
venture, limited liability company, association, joint-stock company, trust,
unincorporated organization, government or any agency or political subdivision
thereof or any other entity.
"Preferred Stock", as applied to the Capital Stock of any
Person, means Capital Stock of any class or classes (however designated) which
is preferred as to the payment of dividends or distributions, or as to the
distribution of assets upon any voluntary or involuntary liquidation or
dissolution of such Person, over shares of Capital Stock of any other class of
such Person.
"Principal" of a Note means the principal of the Note plus the
premium, if any, payable on the Note which is due or overdue or is to become due
at the relevant time.
"Qualified Proceeds" means assets that are used or useful in,
or Capital Stock of any Person engaged in, a Permitted Business.
"Refinance" means, in respect of any Indebtedness, to
refinance, extend, renew, refund, repay, prepay, redeem, purchase, defease or
retire, or to issue other Indebtedness in exchange or replacement for, such
indebtedness. "Refinanced" and "Refinancing" shall have correlative meanings.
"Refinancing Indebtedness" means Indebtedness that Refinances
any Indebtedness of the Issuer or any Restricted Subsidiary existing on the date
of this Indenture or Incurred in compliance with this Indenture (including
Indebtedness of the Issuer that Refinances Indebtedness of any Restricted
Subsidiary and Indebtedness of any Restricted Subsidiary that Refinances
Indebtedness of another Restricted Subsidiary) including Indebtedness that
Refinances Refinancing Indebtedness; provided, however, that (i) the Refinancing
Indebtedness has a Stated Maturity no earlier than the earlier of the Stated
Maturity of the Notes and the Stated Maturity of the Indebtedness being
Refinanced, (ii) the Refinancing Indebtedness has an Average Life at the time
such Refinancing Indebtedness is Incurred that is equal to or greater than the
lesser of the Average Life of the Indebtedness being Refinanced and the Average
Life of the Notes and (iii) 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 sum of the aggregate
principal amount (or if issued with original issue discount, the aggregate
accreted value) then outstanding or committed (plus fees and expenses, including
any premium and defeasance costs) under the Indebtedness being Refinanced;
provided further, however, that Refinancing Indebtedness shall not include (x)
Indebtedness of a Subsidiary that Refinances Indebtedness of the Issuer or (y)
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Indebtedness of the Issuer or a Subsidiary that refinances Indebtedness of an
Unrestricted Subsidiary.
"Restricted Payment" with respect to any Person means (i) the
declaration or payment of any dividends or any other distributions of any sort
in respect of its Capital Stock or similar payment to the direct or indirect
holders of its Capital Stock in respect thereof (other than (a) dividends or
distributions payable solely in its Capital Stock (other than Disqualified
Stock), (b) dividends or distributions payable solely to the Issuer or a
Restricted Subsidiary, and (c) pro rata dividends or other distributions made by
a Subsidiary that is not a Wholly Owned Subsidiary to minority stockholders (or
owners of an equivalent interest in the case of a Subsidiary that is an entity
other than a corporation)), (ii) the purchase, redemption or other acquisition
or retirement for value of any Capital Stock of the Issuer held by any Person or
of any Capital Stock of a Restricted Subsidiary held by any Person (other than
the Issuer or a Restricted Subsidiary), other than the exercise by the Issuer of
any option to convert or exchange any Capital Stock into Indebtedness so long as
such Indebtedness is permitted to be Incurred as of the date of such exercise
pursuant to this Indenture, and other than as permitted by clause (ix) of the
definition of "Permitted Investments"; (iii) the purchase, repurchase,
redemption, defeasance or other acquisition or retirement for value, prior to
scheduled maturity, scheduled repayment or scheduled sinking fund payment of any
Subordinated Obligations (other than the purchase, repurchase or other
acquisition of Subordinated Obligations purchased in anticipation of satisfying
a sinking fund obligation, principal installment or final maturity, in each case
due within one year of the date of acquisition); or (iv) the making of any
Investment in any Person (other than a Permitted Investment).
"Restricted Subsidiary" means any Subsidiary of the Issuer
other than an Unrestricted Subsidiary.
"Sale/Leaseback Transaction" means an arrangement relating to
property now owned or hereafter acquired whereby the Issuer or a Restricted
Subsidiary transfers such property to a Person and the Issuer or a Restricted
Subsidiary leases it from such Person.
"SEC" means the U.S. Securities and Exchange Commission.
"Secured Indebtedness" means any Indebtedness of the Issuer
secured by a Lien.
"Securities Act" means the Securities Act of 1933, as amended.
"Senior Indebtedness" means (i) Indebtedness of the Issuer,
whether outstanding on the Issue Date or thereafter Incurred, and (ii) accrued
and unpaid interest (including interest accruing on or after the filing of any
petition in bankruptcy or for reorganization relating to the Issuer to the
extent post-filing interest is allowed in such proceeding) in respect of (A)
indebtedness of the Issuer for money borrowed and (B) indebtedness evidenced by
notes, debentures, bonds or other similar instruments for the payment of which
the Issuer is responsible or liable unless, in the case of (i) and (ii), in the
instrument creating or evidencing the same or pursuant to which the same is
outstanding, it is provided that such obligations are subordinate in right of
payment to the Notes; provided, however, that Senior Indebtedness shall not
include (1) any obligation of the Issuer to any Subsidiary, (2) any liability
for Federal, state, local or
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other taxes owed or owing by the Issuer, (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 of the Issuer (and any accrued and unpaid interest in respect
thereof) which is subordinate or junior in any respect to any other Indebtedness
or other obligation of the Issuer, (5) that portion of any Indebtedness which at
the time of Incurrence is Incurred in violation of this Indenture.
"Significant Subsidiary" means any Restricted Subsidiary that
would be a "Significant Subsidiary" of the Issuer within the meaning of Rule
1-02 under Regulation S-X promulgated by the SEC.
"Site Management Contract" means any agreement pursuant to
which the Issuer or any of its Restricted Subsidiaries has the right to
substantially control Tower Assets and the revenues derived from the rental or
use thereof.
"Stated Maturity" means, with respect to any security, the
date specified in such security as the fixed date on which the payment of
principal of such security is due and payable, including pursuant to any
mandatory redemption provision (but excluding any provision providing for the
repurchase of such security at the option of the holder thereof upon the
happening of any contingency beyond the control of the issuer unless such
contingency has occurred).
"Subordinated Obligation" means any Indebtedness of the Issuer
(whether outstanding on the Issue Date or thereafter Incurred) which is
subordinate or junior in right of payment to the Notes pursuant to a written
agreement.
"Subsidiary" of any Person means any corporation, association,
partnership or other business entity of which more than 50% of the total voting
power of shares of Capital Stock or other interests (including partnership
interests) entitled (without regard to the occurrence of any contingency) to
vote in the election of directors, managers or trustees thereof is at the time
owned or controlled, directly or indirectly, by (i) such Person, (ii) such
Person and one or more Subsidiaries of such Person or (iii) one or more
Subsidiaries of such Person.
"Temporary Cash Investments" means any of the following: (i)
any investment in direct obligations of the United States of America or any
agency thereof or obligations Guaranteed by the United States of America or any
agency thereof, (ii) investments in time deposit accounts, certificates of
deposit and money market deposits maturing within one year of the date of
acquisition thereof issued by a bank or trust company which is organized under
the laws of the United States of America, any state thereof or any foreign
country recognized by the United States of America having capital, surplus and
undivided profits aggregating in excess of $500.0 million (or the foreign
currency equivalent thereof) and whose long-term debt is rated "A" (or such
similar equivalent rating) or higher by at least one nationally recognized
statistical rating organization (as defined in Rule 436 under the Securities
Act) or any money market fund sponsored by a registered broker dealer or mutual
fund distributor, (iii) repurchase obligations with a term of not more than 30
days for underlying securities of the types described in clause (i) above
entered into with a bank meeting the qualifications described in clause (ii)
above, (iv) investments in commercial paper, maturing not more than 270 days
after the date of acquisition,
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issued by a corporation (other than an Affiliate of the Issuer) organized and in
existence under the laws of the United States of America or any foreign country
recognized by the United States of America with a rating at the time as of which
any investment therein is made of "P-1" (or higher) according to Moody's
Investors Service, Inc. or " A-1" (or higher) according to Standard & Poor's
Ratings Group, and (v) investments in securities with maturities of one year or
less from the date of acquisition issued or fully guaranteed by any state,
commonwealth or territory of the United States of America, or by any political
subdivision or taxing authority thereof, and rated at least "A" by Standard &
Poor's Ratings Group or "A" by Moody's Investors Service, Inc.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. ss.ss.
77aaa-77bbbb) as in effect on the date of this Indenture.
"Tower Asset Exchange" means any transaction in which the
Issuer or a Restricted Subsidiary exchanges assets for Tower Assets or Tower
Assets and cash or cash equivalents where the fair market value (evidenced by a
resolution of the Board of Directors) of the Tower Assets and cash or cash
equivalents received by the Issuer and its Restricted Subsidiaries in such
exchange is at least equal to the fair market value of the assets disposed in
such exchange.
"Tower Assets" means communication transmission towers and
related assets that are located on the site of a transmission tower.
"Tower EBITDA" means, for any period, the EBITDA of the Issuer
and its Restricted Subsidiaries for such period that is directly attributable to
site rental revenue, license or management fees paid to manage, lease or
sublease space on communication sites owned, leased or managed by the Issuer
(collectively, "site leasing revenues"), all determined on a consolidated basis
and in accordance with GAAP. Tower EBITDA will not include revenue derived from
the sale of assets. In allocating corporate, general, administrative and other
operating expenses that are not allocated to any particular line of business in
the financial statements of the Issuer, such expenses shall be allocated to the
Issuer's site leasing business in proportion to the percentage of the Issuer's
total revenues for the applicable period that were site leasing revenues.
"Trust Officer" means any trust officer, assistant vice
president, or vice president of the Trustee assigned by the Trustee to
administer this Indenture.
"Trustee" means the party named as such in this Indenture
until a successor replaces it and, thereafter, means such successor.
"2008 Notes" means the Issuer's 12% Senior Discount Notes Due
2008.
"2009 Notes" means the Issuer's 11 1/4% Senior Discount Notes
Due 2009.
"2010 Notes" means the Issuer's 10 3/4% Senior Notes Due 2010
and the Issuer's 127/8% Senior Discount Notes Due 2010.
"Uniform Commercial Code" means the New York Uniform
Commercial Code as in effect from time to time.
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"Unrestricted Subsidiary" means (i) SpectraSite International,
Inc. and any other Subsidiary of the Issuer that at the time of determination
shall be designated an Unrestricted Subsidiary by the Board of Directors in the
manner provided below and (ii) any Subsidiary of an Unrestricted Subsidiary. The
Board of Directors may designate any Subsidiary of the Issuer (including any
newly acquired or newly formed Subsidiary of the Issuer) to be an Unrestricted
Subsidiary unless such Subsidiary or any of its Subsidiaries owns any Capital
Stock or Indebtedness of, or owns or holds any Lien on any property of, the
Issuer or any other Restricted Subsidiary of the Issuer that is not a Subsidiary
of the Subsidiary to be so designated; provided, however, that either (A) the
Subsidiary to be so designated has total consolidated assets of $1,000 or less
or (B) if such Subsidiary has consolidated assets greater than $1,000, then such
designation would be permitted under Section 4.5. The Board of Directors may
designate any Unrestricted Subsidiary to be a Restricted Subsidiary; provided,
however, that (a) immediately after giving effect to such designation no Default
shall have occurred and be continuing and (b) such designation shall be deemed
to be an Incurrence of Indebtedness by a Restricted Subsidiary of any
outstanding Indebtedness of such Unrestricted Subsidiary and such designation
shall only be permitted if such Indebtedness is permitted under this Indenture.
Any such designation by the Board of Directors shall be evidenced to the Trustee
by promptly filing with the Trustee a copy of the resolution of the Board of
Directors giving effect to such designation and an Officer's Certificate
certifying that such designation complied with the foregoing provisions.
"U.S. Government Obligations" means direct obligations (or
certificates representing an ownership interest in such obligations) of the
United States of America (including any agency or instrumentality thereof) for
the payment of which the full faith and credit of the United States of America
is pledged and which are not callable or redeemable at the Issuer's option.
"Voting Stock" of a Person means all classes of Capital Stock
or other interests (including partnership interests) of such Person then
outstanding and normally entitled (without regard to the occurrence of any
contingency) to vote in the election of directors, managers, or trustee thereof.
"Wholly Owned Subsidiary" means a Restricted Subsidiary of the
Issuer all the Capital Stock of which (other than directors' qualifying shares)
is owned by the Issuer or another Wholly Owned Subsidiary.
SECTION 1.2. Other Definitions.
Term Defined in Section
"Affiliate Transaction" 4.8
"Appendix" 2.1
"Authenticating Agent" 2.2
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"Bankruptcy Law" 6.1
"covenant defeasance option" 8.1(b)
"Custodian" 6.1
"Event of Default" 6.1
"legal defeasance option" 8.1(b)
"Offer" 4.7(b)
"Offer Amount" 4.7(c)(2)
"Offer Period" 4.7(c)(2)
"Paying Agent" 2.3
"Purchase Date" 4.7(c)(1)
"Registrar" 2.3
"Successor Issuer" 5.1(i)
SECTION 1.3. Incorporation by Reference of Trust Indenture
Act. The mandatory provisions of the TIA are incorporated by reference in and
made a part of this Indenture. The following TIA terms have the following
meanings:
"Commission" means the SEC.
"indenture securities" means the Notes.
"indenture security holder" means a Holder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the
Trustee.
"obligor" on the indenture securities means the Issuer 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 1.4. 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;
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(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) except as otherwise expressly provided, the principal
amount of any noninterest 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 preference of such Preferred Stock or (ii) the
maximum mandatory redemption or mandatory repurchase price with respect
to such Preferred Stock, whichever is greater; and
(9) except as otherwise expressly provided, all references to
the date the Notes were originally issued shall refer to the date the
Initial Notes were originally issued.
SECTION 1.5. One Class of Notes. The Initial Notes, the
Private Exchange Notes and the Exchange Notes shall vote and consent together on
all matters as one class and none of the Initial Notes, the Private Exchange
Notes or the Exchange Notes shall have the right to vote or consent as a
separate class on any matter.
ARTICLE II
THE NOTES
SECTION 2.1. Form and Dating. Certain provisions relating to
the Initial Notes, the Private Exchange Notes and the Exchange Notes are set
forth in the Rule 144A/Regulation S Appendix attached hereto (the "Appendix"),
which is hereby incorporated in and expressly made a part of this Indenture. The
Initial Notes and the Trustee's certificate of authentication thereof shall be
substantially in the form of Exhibit 1 to the Appendix, which is hereby
incorporated in and expressly made a part of this Indenture. The Exchange Notes,
the Private Exchange Notes and the Trustee's certificate of authentication
thereof shall be substantially in the form of Exhibit A, which is hereby
incorporated by reference and expressly made a part of this Indenture. The Notes
may have notations, legends or endorsements required by law, rule of any
securities exchange or over-the-counter market on which such Notes are then
listed or quoted, or usage, in addition to those set forth on the Appendix and
Exhibit A. The Issuer and the Trustee shall approve the forms of the Notes and
any notation, endorsement or legend on them. Each Note shall be dated the date
of its authentication. The terms of the Notes set forth in the Appendix and
Exhibit A are part of the terms of this Indenture and, to the extent applicable,
the Issuer and the Trustee, by their execution and delivery of this Indenture,
expressly agree to be bound by such terms.
SECTION 2.2. Execution and Authentication. Two Officers
shall sign the Notes for the Issuer by manual or facsimile signature.
If an Officer whose signature is on a Note no longer holds
that office at the time the Trustee authenticates the Note, the Note shall be
valid nevertheless.
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A Note shall not be valid until an authorized signatory of the
Trustee manually authenticates the Note. The signature of the Trustee on a Note
shall be conclusive evidence that such Note has been duly and validly
authenticated and issued under this Indenture.
The Trustee may appoint an agent (the "Authenticating Agent")
reasonably acceptable to the Issuer to authenticate the Notes. Unless limited by
the terms of such appointment, any such Authenticating Agent may authenticate
Notes whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such agent.
SECTION 2.3. Registrar and Paying Agent. The Issuer shall (i)
appoint an agent (the "Registrar") who shall maintain an office or agency where
Notes may be presented for registration of transfer or for exchange and (ii) an
agent (the "Paying Agent") who shall maintain an office or agency where Notes
may be presented for payment. The Registrar shall keep a register of the Notes
and of their transfer and exchange. The Issuer may have one or more
co-registrars and one or more additional paying agents. The term "Paying Agent"
includes any such additional paying agent.
In the event the Issuer shall retain any Person not a party to
this Indenture as an agent hereunder, the Issuer shall enter into an appropriate
agency agreement with any Registrar, Paying Agent or co-registrar not a party to
this Indenture, which shall incorporate the terms of the TIA. The agreement
shall implement the provisions of this Indenture that relate to such agent. The
Issuer shall notify the Trustee of the name and address of each such agent. If
the Issuer 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 7.7. The Issuer or any of its domestically incorporated Wholly Owned
Subsidiaries may act as Paying Agent.
The Issuer initially appoints the Trustee as Registrar and
Paying Agent for the Notes.
SECTION 2.4. Paying Agent to Hold Money in Trust. By at least
11:00 a.m. (New York City time) on the date on which any principal or interest
on any Note is due and payable, the Issuer shall deposit with the Paying Agent a
sum sufficient to pay such principal or interest when due. The Issuer shall
require each Paying Agent (other than the Trustee) to agree in writing that such
Paying Agent shall hold in trust for the benefit of Noteholders or the Trustee
all money held by such Paying Agent for the payment of principal or interest on
the Notes and shall notify the Trustee of any default by the Issuer in making
any such payment. If the Issuer or a Subsidiary acts as Paying Agent, it shall
segregate the money held by it as Paying Agent and hold it as a separate trust
fund. The Issuer at any time may require a Paying Agent (other than the Trustee)
to pay all money held by it to the Trustee and to account for any funds
disbursed by such Paying Agent. Upon complying with this Section, the Paying
Agent (if other than the Issuer or a Subsidiary) shall have no further liability
for the money delivered to the Trustee. Upon any bankruptcy, reorganization or
similar proceeding with respect to the Issuer, the Trustee shall serve as Paying
Agent for the Notes.
SECTION 2.5. Noteholder 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
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Noteholders. If the Trustee or any Paying Agent is not the Registrar, the Issuer
shall cause the Registrar to furnish to the Trustee or any such Paying Agent, in
writing at least five Business Days before each interest payment date and at
such other times as the Trustee or any such Paying Agent 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 Noteholders.
SECTION 2.6. [Intentionally Omitted]
SECTION 2.7. Replacement Notes. If a mutilated Note is
surrendered to the Trustee or if the Holder of a Note shall provide the Issuer
and the Trustee with evidence to their satisfaction that the Note has been lost,
destroyed or wrongfully taken, the Issuer shall issue and the Trustee shall
authenticate a replacement Note if the requirements of Section 8-405 of the
Uniform Commercial Code are met and the Holder satisfies any other reasonable
requirements of the Trustee. If required by the Trustee or the Issuer, such
Holder shall furnish an indemnity bond sufficient in the judgment of the Issuer
and the Trustee to protect the Issuer, the Trustee, the Paying Agent, the
Registrar and any co-registrar from any loss which any of them may suffer if a
Note is replaced. The Issuer and the Trustee may charge the Holder for their
expenses in replacing a Note, including reasonable fees and expenses of counsel.
Every replacement Note is an additional obligation of the Issuer.
SECTION 2.8. Outstanding Notes. Notes outstanding at any time
are all Notes authenticated by the Trustee except for those canceled, those
delivered for cancellation and those described in this Section 2.8 as not
outstanding. A Note does not cease to be outstanding because the Issuer or an
Affiliate of the Issuer holds the Note.
If a Note is replaced pursuant to Section 2.7, it ceases to be
outstanding unless the Trustee and the Issuer receive proof satisfactory to them
that the replaced Note is held by a bona fide purchaser.
If the Paying Agent segregates and holds in trust, in
accordance with this Indenture, on a redemption date or maturity date money
sufficient to pay all principal and interest payable on that date with respect
to the Notes (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
Noteholders on that date pursuant to the terms of this Indenture, then on and
after that date such Notes (or portions thereof) cease to be outstanding and
interest on them ceases to accrue.
SECTION 2.9. Temporary Notes. Until definitive Notes are ready
for delivery, the Issuer may prepare and the Trustee shall authenticate
temporary Notes. Temporary Notes shall be substantially in the form of
definitive Notes but may have variations that the Issuer considers appropriate
for temporary Notes. Without unreasonable delay, the Issuer shall prepare and
the Trustee shall authenticate definitive Notes. After the preparation of
definitive Notes, the temporary Notes shall be exchangeable for definitive Notes
upon surrender of the temporary Notes at any office or agency maintained by the
Issuer for that purpose and such exchange shall be without charge to the Holder.
Upon surrender for cancellation of any one or more temporary Notes, the Issuer
shall execute, and the Trustee shall authenticate and deliver in exchange
therefor, one or more definitive Notes representing an equal principal amount of
Notes. Until so
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exchanged, the Holder of temporary Notes shall in all respects be entitled to
the same benefits under this Indenture as a Holder of definitive Notes.
SECTION 2.10. Cancellation. The Issuer at any time may deliver
Notes to the Trustee for cancellation. The Registrar and the Paying Agent shall
forward to the Trustee for cancellation any Notes surrendered to them for
registration of transfer or exchange or payment. The Trustee shall cancel and
destroy (subject to the record retention requirements of the Exchange Act) all
Notes surrendered for registration of transfer or exchange, payment or
cancellation and deliver a certificate of such destruction to the Issuer unless
the Issuer directs the Trustee to deliver canceled Notes to the Issuer. The
Issuer may not issue new Notes to replace Notes it has redeemed, paid or
delivered to the Trustee for cancellation.
SECTION 2.11. Defaulted Interest. If the Issuer defaults in a
payment of interest on the Notes, the Issuer shall pay defaulted interest (plus
interest on such defaulted interest to the extent lawful) at the rate specified
therefor in the Notes in any lawful manner. The Issuer may pay the defaulted
interest to the Persons who are Noteholders on a subsequent special record date.
The Issuer shall fix or cause to be fixed (or upon the Issuer's failure to do so
the Trustee shall fix) any such special record date and payment date to the
reasonable satisfaction of the Trustee which specified record date shall not be
less than 10 days prior to the payment date for such defaulted interest and
shall promptly mail or cause to be mailed to each Noteholder a notice that
states the special record date, the payment date and the amount of defaulted
interest to be paid. The Issuer shall notify the Trustee in writing of the
amount of defaulted interest proposed to be paid on each Note and the date of
the proposed payment, and at the same time the Issuer shall deposit with the
Trustee an amount of money equal to the aggregate amount proposed to be paid in
respect of such defaulted interest or shall make arrangements satisfactory to
the Trustee for such deposit prior to the date of the proposed payment, such
money when so deposited to be held in trust for the benefit of the Person
entitled to such defaulted interest as provided in this Section 2.11.
SECTION 2.12. CUSIP Numbers. The Issuer in issuing the Notes
may use "CUSIP" numbers (if then generally in use) and, if so, the Trustee shall
use "CUSIP" numbers in notices of redemption as a convenience to Holders;
provided, however, that any such notice may state that no representation is made
as to the correctness of such numbers either as printed on the Notes or as
contained in any notice of a redemption and that reliance may be placed only on
the other identification numbers printed on the Notes, and any such redemption
shall not be affected by any defect in or omission of such numbers.
ARTICLE III
REDEMPTION
SECTION 3.1. Notices to Trustee. If the Issuer elects to
redeem Notes pursuant to paragraph 5 of the Notes (Exhibit 1 to the Appendix),
it shall notify the Trustee and the Paying Agent in writing of the redemption
date and the principal amount of Notes to be redeemed and the redemption price.
The Issuer shall give each notice to the Trustee and the
Paying Agent provided for in this Section at least 60 days before the redemption
date unless the Trustee and the Paying
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Agent consent to a shorter period. Such notice shall be accompanied by an
Officer's Certificate from the Issuer to the effect that such redemption will
comply with the conditions herein. The record date relating to such redemption
shall be selected by the Issuer and set forth in the related notice given to the
Trustee and the Paying Agent, which record date shall be not less than 15 days
prior to the date selected for redemption by the Issuer.
SECTION 3.2. Selection of Notes to Be Redeemed. In the case of
any partial redemption, selection of the Notes for redemption will be made by
the Trustee in compliance with the requirements of the principal national
securities exchange, if any, on which the Notes are listed, or, if the Notes are
not so listed, on a pro rata basis, by lot or by such other method as the
Trustee in its sole discretion shall deem to be fair and appropriate, although
no Note of $1,000 in original principal amount or less will be redeemed in part.
Provisions of this Indenture that apply to Notes called for redemption also
apply to portions of Notes called for redemption. Upon request of the Issuer,
the Trustee shall notify the Issuer of the Notes or portions of Notes to be
redeemed.
SECTION 3.3. Notice of Redemption. At least 30 days but not
more than 60 days before a date for redemption of Notes, the Trustee at the
expense of the Issuer shall mail a notice of redemption by first-class mail to
each Holder of Notes to be redeemed.
The notice shall identify the Notes to be redeemed and shall
state:
(1) the redemption date;
(2) the redemption price;
(3) the name and address of the Paying Agent;
(4) that Notes called for redemption must be surrendered to
the Paying Agent to collect the redemption price plus accrued and
unpaid interest, if any;
(5) if fewer than all the outstanding Notes are to be
redeemed, the identification and principal amounts of the particular
Notes to be redeemed;
(6) that, unless the Issuer 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 Notes (or portion
thereof) called for redemption ceases to accrue on and after the
redemption date;
(7) the CUSIP number, if any, printed on the Notes being
redeemed; and
(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 Notes.
The Trustee shall give the notice of redemption in the
Issuer's name and at the Issuer's expense. In such event, the Issuer shall
provide the Trustee with the information required by this Section 3.3.
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SECTION 3.4. Effect of Notice of Redemption. Once notice of
redemption is mailed, Notes called for redemption shall become due and payable
on the redemption date and at the redemption price stated in the notice. Upon
surrender to the Paying Agent, such Notes shall be paid at the redemption price
stated in the notice, plus accrued and unpaid interest, if any, to the
redemption date; provided that the Issuer shall have deposited the redemption
price with the Paying Agent or the Trustee on or before 11:00 a.m. (New York
City time) on the date of redemption; provided, further, that if the redemption
date is after a regular record date and on or prior to the interest payment
date, the accrued and unpaid interest shall be payable to the Noteholder of the
redeemed Notes 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 3.5. Deposit of Redemption Price. By at least 11:00
a.m. (New York City time) on the date on which any principal of or interest on
any Note is due and payable, the Issuer shall deposit with the Paying Agent (or,
if the Issuer or a Subsidiary is the Paying Agent, shall segregate and hold in
trust) money sufficient to pay the redemption price of and accrued and unpaid
interest, if any, on all Notes to be redeemed on that date other than Notes or
portions of Notes called for redemption which are owned by the Issuer or a
Subsidiary and have been delivered by the Issuer or such Subsidiary to the
Trustee for cancellation.
If the Issuer complies with the preceding paragraph, then,
unless the Issuer defaults in the payment of such redemption price, interest on
the Notes to be redeemed will cease to accrue on and after the applicable
redemption date, whether or not such Notes are presented for payment.
SECTION 3.6. Notes Redeemed in Part. Upon surrender of a Note
that is redeemed in part, the Issuer shall execute and the Trustee shall
authenticate for the Holder (at the Issuer's expense) a new Note equal in a
principal amount to the unredeemed portion of the Note surrendered.
ARTICLE IV
COVENANTS
SECTION 4.1. Payment of Notes. The Issuer shall promptly pay
the principal of and interest on the Notes on the dates and in the manner
provided in the Notes and in this Indenture. Principal and interest shall be
considered paid on the date due if on or before 11:00 a.m. (New York City time)
on such date the Trustee or the Paying Agent holds (or, if the Issuer or a
Subsidiary is the Paying Agent, the segregated account or separate trust fund
maintained by the Issuer or such Subsidiary pursuant to Section 2.4) in
accordance with this Indenture money sufficient to pay all principal and
interest then due and the Trustee or the Paying Agent (or, if the Issuer or a
Subsidiary is the Paying Agent, the Issuer or such Subsidiary), as the case may
be, is not prohibited from paying such money to the Noteholders on that date
pursuant to the terms of this Indenture.
The Issuer shall pay interest on overdue principal at the rate
specified therefor in the Notes, and it shall pay interest on overdue
installments of interest at the same rate to the extent lawful as provided in
Section 2.11.
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Notwithstanding anything to the contrary contained in this
Indenture. the Issuer or the Paying Agent may, to the extent it is required to
do so by law, deduct or withhold income or other similar taxes imposed by the
United States of America or other domestic or foreign taxing authorities from
principal or interest payments hereunder.
SECTION 4.2. SEC Reports. Notwithstanding that the Issuer may
not be required to remain subject to the reporting requirements of Section 13 or
15(d) of the Exchange Act, the Issuer will file with the SEC (unless the SEC
does not permit such filing) and provide the Trustee and Noteholders with the
annual reports and such information, documents and other reports which are
specified in Sections 13 and 15(d) of the Exchange Act. The Issuer also will
comply with the other provisions of TIA ss. 314(a).
SECTION 4.3. Limitation on Indebtedness. (a) The Issuer will
not Incur, directly or indirectly, any Indebtedness unless, on the date of such
Incurrence and after giving effect to such Incurrence and the application of the
proceeds therefrom, the Indebtedness to Adjusted EBITDA Ratio of the Issuer
would be equal to or less than 7.00:1. Accrual of interest, accretion or
amortization of original issue discount and the payment of interest in the form
of additional Indebtedness will not be deemed to be an Incurrence of
Indebtedness for purposes of this covenant.
(b) Notwithstanding the foregoing paragraph (a) and regardless
of the amount of outstanding Indebtedness of the Issuer, the Issuer may Incur
any or all of the following Indebtedness: (i) Indebtedness of the Issuer owing
to and held by any Restricted Subsidiary; provided, however, that any event
which results in any such Restricted Subsidiary ceasing to be a Restricted
Subsidiary or any subsequent transfer of any such Indebtedness (except to
another Restricted Subsidiary) will be deemed, in each case, to constitute the
Incurrence of such Indebtedness by the Issuer; (ii) Indebtedness represented by
the Notes; (iii) Indebtedness of the Issuer outstanding on the Issue Date; (iv)
Indebtedness (including Capitalized Lease Obligations) of the Issuer Incurred to
finance the acquisition, construction or improvement of fixed or capital assets
in an aggregate principal amount (together with the amount of any Indebtedness
then outstanding and Incurred pursuant to clause (b)(vi) of Section 4.4) at any
one time outstanding not to exceed the greater of (x) $25.0 million and (y) an
amount equal to 7.5% of the Issuer's Consolidated Tangible Assets; provided,
that such Indebtedness is Incurred within 180 days after the date of such
acquisition, construction or improvement and does not exceed the fair market
value of such acquired, constructed or improved assets, as determined in good
faith by the Board of Directors; (v) Refinancing Indebtedness Incurred in
respect of any Indebtedness Incurred pursuant to paragraph (a) or pursuant to
clause (ii), (iii) or this clause (v); (vi) Indebtedness (A) in respect of
performance bonds, bankers' acceptances, letters of credit and surety or appeal
bonds provided by the Issuer in the ordinary course of its business and which do
not secure other Indebtedness and (B) under Currency Agreements and Interest
Rate Agreements Incurred which, at the time of Incurrence, is in the ordinary
course of business; provided, however, that, in the case of Currency Agreements
and Interest Rate Agreements, such Currency Agreements and Interest Rate
Agreements are directly related to Indebtedness permitted to be Incurred by the
Issuer pursuant to this Indenture; (vii) Indebtedness represented by Guarantees
by the Issuer of Indebtedness otherwise permitted to be Incurred by a Restricted
Subsidiary pursuant to this Indenture; (viii) Indebtedness of any other Person
existing at the time such other Person is merged with or into the Issuer
outstanding on or prior to the date on which such Person was
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merged with or into the Issuer (other than Indebtedness Incurred in connection
with, or to provide all or any portion of the funds or credit support utilized
to consummate, the transaction or series of related transactions pursuant to
which such Person was merged with or into the Issuer); provided, however, that
on the date of such merger and after giving effect thereto either (x) the Issuer
would be permitted to incur at least $1.00 of additional Indebtedness pursuant
to paragraph (a) of this Section 4.3 or (y) the Issuer would have an
Indebtedness to Adjusted EBITDA Ratio immediately after giving effect to such
merger no greater than the Indebtedness to Adjusted EBITDA Ratio immediately
prior to such merger; (ix) the Incurrence by the Issuer of Indebtedness not to
exceed, at any one time outstanding (together with the amount of any
Indebtedness then outstanding and Incurred pursuant to clause (b)(ix) of Section
4.4), 2.0 times the sum of 100% of the aggregate Net Cash Proceeds and 50% of
the non-cash proceeds received by the Issuer from the issue or sale of Capital
Stock (other than Disqualified Stock) subsequent to July 1, 1999 (other than an
issuance or sale to a Subsidiary of the Issuer and other than an issuance or
sale to an employee stock ownership plan or to a trust established by the Issuer
or any of its Restricted Subsidiaries), less the aggregate amount of such Net
Cash Proceeds used to make Restricted Payments pursuant to clause 3(B) of
paragraph (a) of Section 4.5 or applied pursuant to clause (i)(B) of paragraph
(b) of Section 4.5; (x) other Indebtedness in an aggregate principal amount
outstanding at any time not to exceed $25.0 million (together with the amount of
any Indebtedness and Preferred Stock then outstanding and Incurred pursuant to
clause (b)(x) of Section 4.4); (xi) Indebtedness Incurred by the Issuer's
Subsidiaries in compliance with Section 4.4; (xii) Indebtedness incurred under
Credit Facilities, in an aggregate principal amount outstanding at any time,
together with the amount of any Indebtedness then outstanding and incurred under
Section 4.4(b)(i) of this Indenture, not to exceed the sum of (A) the product of
$200,000 times the number of Completed Towers on the date of incurrence and (B)
the product of $1,000,000 times the number of Completed Broadcast Towers on the
date of such incurrence; provided that the amount of such Indebtedness incurred
pursuant to this clause (B) does not exceed 25% of the cost of acquiring or
constructing such Completed Broadcast Towers; (xiii) Indebtedness representing
the deferred payment of the purchase price for any entity that is engaged in a
Permitted Business and that becomes a Restricted Subsidiary or the acquisition
of any assets constituting a business or line of business, as determined in good
faith by the Board of Directors, that is a Permitted Business, not to exceed at
any one time outstanding, together with any Indebtedness then outstanding and
incurred pursuant to Section 4.4(b)(xi) of this Indenture, 50% of the purchase
price for the related entity or business so acquired; provided, however, that
after giving effect to such acquisition and all Indebtedness incurred in
connection therewith, either (A) the Issuer would have been able to incur at
least $1.00 of additional Indebtedness under this Section 4.3 or (B) the Issuer
would have had an Indebtedness to Adjusted EBITDA Ratio no greater than prior to
such transaction; and (xiv) Permitted Acquisition Indebtedness.
(c) Notwithstanding the foregoing, the Issuer shall not Incur
any Indebtedness pursuant to the foregoing paragraph (b) of this Section 4.3 if
the proceeds thereof are used, directly or indirectly, to Refinance any
Subordinated Obligations unless such new Indebtedness shall (i) be subordinated
to the Notes to at least the same extent as such Subordinated Obligations being
Refinanced and (ii) have a Stated Maturity that is no earlier than the earlier
of the Stated Maturity of the Notes and the Stated Maturity of the Subordinated
Obligations being Refinanced.
(d) For purposes of determining compliance with this Section
4.3, (i) in the event that an item of Indebtedness meets the criteria of more
than one of the types of
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Indebtedness described above, the Issuer, in its sole discretion, will classify
(and may from time to time reclassify) such item of Indebtedness and only be
required to include the amount and type of such Indebtedness in one of the above
clauses of this Section 4.3 and (ii) an item of Indebtedness may be divided and
classified in more than one of the types of Indebtedness described in this
Section 4.3.
SECTION 4.4. Limitation on Indebtedness and Preferred Stock of
Restricted Subsidiaries. (a) The Issuer shall not permit any Restricted
Subsidiary to Incur, directly or indirectly, any Indebtedness or Preferred Stock
unless, on the date of such Incurrence and after giving effect to such
Incurrence and the application of the net proceeds therefrom, the Indebtedness
to Adjusted EBITDA Ratio of the Issuer would be equal to or less than 7.00:1.
Accrual of interest, accretion or amortization of original issue discount and
the payment of interest in the form of additional Indebtedness will not be
deemed to be an Incurrence of Indebtedness for purposes of this covenant.
(b) Notwithstanding the foregoing paragraph (a) and regardless
of the amount of outstanding Indebtedness of the Restricted Subsidiaries, any
Restricted Subsidiary may Incur any or all of the following Indebtedness: (i)
Indebtedness Incurred under Credit Facilities in an aggregate principal amount
outstanding at any time (together with the amount of any Indebtedness then
outstanding and incurred under clause (b)(xii) of Section 4.3) not to exceed the
sum of (x) the product of $200,000 times the number of Completed Towers on the
date of such Incurrence; and (y) the product of $1,000,000 times the number of
Completed Broadcast Towers on the date of such Incurrence, provided that the
amount of such Indebtedness incurred pursuant to this clause (y) does not exceed
25% of the cost of acquiring or constructing such Completed Broadcast Towers;
(ii) Indebtedness or Preferred Stock of a Restricted Subsidiary issued to and
held by the Issuer or a Restricted Subsidiary; provided, however, that any
subsequent issuance or transfer of any Capital Stock which results in any such
Restricted Subsidiary ceasing to be a Restricted Subsidiary or any subsequent
transfer of such Indebtedness or Preferred Stock (other than to the Issuer or a
Restricted Subsidiary) shall be deemed, in each case, to constitute the
Incurrence of such Indebtedness or Preferred Stock by the issuer thereof; (iii)
Indebtedness or Preferred Stock of a Restricted Subsidiary Incurred and
outstanding on or prior to the date on which such Restricted Subsidiary was
acquired by the Issuer and Indebtedness or Preferred Stock of an entity merged
into a Restricted Subsidiary (other than, in either case, Indebtedness or
Preferred Stock Incurred in connection with, or to provide all or any portion of
the funds or credit support utilized to consummate, the transaction or series of
related transactions pursuant to which such Restricted Subsidiary became a
Restricted Subsidiary or was acquired by the Issuer or such entity was merged
into such Restricted Subsidiary); provided, however, that on the date of such
acquisition or merger and after giving effect thereto, either (x) the Issuer
would have been permitted to incur at least $1.00 of additional Indebtedness
pursuant to paragraph (a) of Section 4.3 or (y) the Issuer would have had an
Indebtedness to Adjusted EBITDA Ratio immediately after giving effect to such
merger or acquisition no greater than the Indebtedness to Adjusted EBITDA Ratio
immediately prior to such transaction; (iv) Indebtedness or Preferred Stock
outstanding on the Issue Date; (v) Refinancing Indebtedness Incurred in respect
of Indebtedness or Preferred Stock referred to in paragraph (a) above or in
clauses (iii) or (iv) of this paragraph or this clause (v); provided, however,
that Indebtedness of the Issuer may not be refinanced pursuant to this clause
(v); (vi) Indebtedness (including Capitalized Lease Obligations) Incurred by a
Subsidiary to finance the acquisition, construction
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or improvement of fixed or capital assets in an aggregate principal amount at
any one time outstanding (together with the amount then outstanding and Incurred
pursuant to clause (b)(iv) of Section 4.3) not to exceed the greater of (x)
$25.0 million and (y) an amount equal to 7.5% of the Issuer's Consolidated
Tangible Assets; provided, that such Indebtedness is Incurred within 180 days
after the date of such acquisition, construction or improvement and does not
exceed the fair market value of such acquired, constructed or improved assets,
as determined in good faith by the Board of Directors; (vii) Indebtedness (A) in
respect of performance bonds, bankers' acceptances, letters of credit and surety
or appeal bonds provided in the ordinary course of its business and which do not
secure other Indebtedness and (B) Incurred under Currency Agreements and
Interest Rate Agreements which, at the time of Incurrence, is in the ordinary
course of business; provided, however, that, in the case of Currency Agreements
and Interest Rate Agreements, such Currency Agreements and Interest Rate
Agreements are directly related to Indebtedness permitted to be Incurred
pursuant to this Indenture; (viii) Indebtedness represented by Guarantees, by a
Subsidiary, of Indebtedness otherwise permitted to be Incurred by the Issuer or
a Subsidiary pursuant to this Indenture; provided that any Subsidiary which
guarantees the 2008 Notes, the 2009 Notes, the 2010 Notes or the Convertible
Notes will guarantee the Notes, in each case on substantially similar terms;
(ix) the Incurrence of Indebtedness not to exceed, at any one time outstanding
(together with the amount of any Indebtedness then outstanding and Incurred
pursuant to clause (b)(ix) of Section 4.3), 2.0 times (A) the sum of 100% of the
aggregate Net Cash Proceeds and 50% of the non-cash proceeds received by the
Issuer from the issue or sale of Capital Stock (other than Disqualified Stock)
subsequent to July 1, 1999, other than an issuance or sale to a Subsidiary or to
an employee stock ownership plan or to a trust established by the Issuer or any
Restricted Subsidiary, less (B) the amount of such Net Cash Proceeds used to
make Restricted Payments pursuant to clause 3(B) of paragraph (a) of Section 4.5
or applied pursuant to clause (i)(B) of paragraph (b) of Section 4.5; (x) other
Indebtedness and Preferred Stock in an aggregate principal and/or liquidation
amount outstanding at any time not to exceed $25.0 million (less the amount of
any Indebtedness then outstanding and Incurred pursuant to clause (b)(x) of
Section 4.3); (xi) Indebtedness representing the deferred payment of the
purchase price for any entity that is engaged in a Permitted Business and that
becomes a Restricted Subsidiary or the acquisition of any assets constituting a
business or line of business, as determined in good faith by the Board of
Directors, that is a Permitted Business, not to exceed at any one time
outstanding, together with any Indebtedness then outstanding and incurred
pursuant to Section 4.3(b)(xiii) of this Indenture, 50% of the purchase price
for the related entity or business so acquired; provided, however, that after
giving effect to such acquisition and all Indebtedness incurred in connection
therewith, either (A) the Issuer would have been able to incur at least $1.00 of
additional Indebtedness under Section 4.3 or (B) the Issuer would have had an
Indebtedness to Adjusted EBITDA Ratio no greater than prior to such transaction;
and (xii) Permitted Acquisition Indebtedness.
(c) For purposes of determining compliance with this Section
4.4, (i) in the event that an item of Indebtedness meets the criteria of more
than one of the types of Indebtedness described above, the Issuer, in its sole
discretion, will classify (and may from time to time reclassify) such item of
Indebtedness and only be required to include the amount and type of such
Indebtedness in one of the above clauses of this Section 4.4 and (ii) an item of
Indebtedness may be divided and classified in more than one of the types of
Indebtedness described in this Section 4.4
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(d) The Issuer will not permit any Unrestricted Subsidiary to
Incur any Indebtedness other than Non-Recourse Debt.
SECTION 4.5. Limitation on Restricted Payments. (a) The Issuer
will not make and will not permit any Restricted Subsidiary to make directly or
indirectly, any Restricted Payment if at the time the Issuer or such Restricted
Subsidiary makes such Restricted Payment: (1) a Default or Event of Default will
have occurred and be continuing (or would result therefrom); (2) except with
respect to making an Investment, the Issuer could not incur at least $1.00 of
additional Indebtedness under paragraph (a) of Section 4.3; or (3) the aggregate
amount of such Restricted Payment and all other Restricted Payments (the amount
so expended, if other than in cash, to be determined in good faith by the Board
of Directors, whose determination will be evidenced by a resolution of such
Board of Directors) declared or made subsequent to the Issue Date would exceed
the sum of: (A) (x) the aggregate EBITDA (or, in the event such EBITDA shall be
a deficit, minus such deficit) accrued subsequent to July 1, 1999 to the most
recent date for which financial information is available to the Issuer, taken as
one accounting period, (y) less 1.4 times Consolidated Interest Expense for the
same period; (B) (x) 100% of the aggregate Net Cash Proceeds (less the aggregate
amount of such Net Cash Proceeds used to Incur Indebtedness pursuant to clause
(b)(ix) of Section 4.3 and clause (b)(ix) of Section 4.4) and (y) 70% of the
GAAP purchase accounting valuation of Qualified Proceeds (with each such
valuation calculated as of the sale date of the Capital Stock received as
consideration therefor), in each case received by the Issuer from the issue or
sale of Capital Stock (other than Disqualified Stock) subsequent to July 1, 1999
(other than an issuance or sale to a Subsidiary of the Issuer and other than an
issuance or sale to an employee stock ownership plan or to a trust established
by the Issuer or any of its Restricted Subsidiaries); (C) the amount by which
Indebtedness of the Issuer is reduced on the Issuer's balance sheet upon the
conversion or exchange (other than by a Restricted Subsidiary) subsequent to
March 15, 2000 of any Indebtedness of the Issuer convertible or exchangeable for
Capital Stock (other than Disqualified Stock) of the Issuer (less the amount of
any cash, or the fair value of any other property, distributed by the Issuer
upon such conversion or exchange); (D) an amount equal to the sum of (i) the net
reduction in Investments in Unrestricted Subsidiaries resulting from dividends,
repayments of loans or advances or other transfers of assets to the Issuer or
any Restricted Subsidiary from Unrestricted Subsidiaries and (ii) the portion
(proportionate to the Issuer's equity interest in such Subsidiary) of the fair
market value of the net assets of an Unrestricted Subsidiary at the time such
Unrestricted Subsidiary is designated a Restricted Subsidiary; provided, that
the foregoing sum shall not exceed, in the case of any Unrestricted Subsidiary,
the amount of Investments previously made by the Issuer or any Restricted
Subsidiary in such Unrestricted Subsidiary, which amount was included in the
calculation of the amount of Restricted Payments; (E) dividends and
distributions received by the Issuer subsequent to March 15, 2000 from
Unrestricted Subsidiaries, to the extent such dividends and distributions are
not otherwise included in calculating EBITDA; and (F) Net Cash Proceeds received
by the Issuer subsequent to March 15, 2000 from Investments that are not
Permitted Investments, to the extent not otherwise included in calculating
EBITDA.
(b) The provisions of the foregoing paragraph (a) of this
Section 4.5 will not prohibit: (i) any purchase, redemption, defeasance or other
acquisition of Capital Stock of the Issuer or Subordinated Obligations made by
exchange for, or out of the net proceeds of the substantially concurrent sale
of, Capital Stock of the Issuer (other than Disqualified Stock and
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other than Capital Stock issued or sold to a Subsidiary of the Issuer or an
employee stock ownership plan or to a trust established by the Issuer or any of
its Subsidiaries); provided, however, that (A) such purchase, redemption,
defeasance or other acquisition will be excluded in the calculation of the
amount of Restricted Payments and (B) to the extent applied toward any such
purchase, redemption, defeasance or other acquisition, the Net Cash Proceeds
from such sale will be excluded from clause (3)(B) of paragraph (a) of this
Section 4.5, clause (b)(ix) of Section 4.3 and clause (b)(ix) of Section 4.4;
(ii) any purchase, redemption, defeasance or other acquisition of Subordinated
Obligations made by exchange for, or out of the net proceeds of the
substantially concurrent sale of, Subordinated Obligations of the Issuer;
provided, however, that (A) the principal amount of such new Indebtedness does
not exceed the principal amount of the Subordinated Obligations being so
redeemed, repurchased, acquired or retired for value (plus the amount of any
premium required to be paid under the terms of the instrument governing the
Subordinated Obligations being so redeemed, repurchased, acquired or retired),
(B) such new Indebtedness is subordinated to the Notes at least to the same
extent as such Subordinated Obligations so purchased, exchanged, redeemed,
repurchased, acquired or retired for value, (C) such new Indebtedness has a
final scheduled maturity date later than the earlier of the final scheduled
maturity date of the Subordinated Obligations being so redeemed, repurchased,
acquired or retired and the final scheduled maturity date of the Notes, (D) such
new Indebtedness has an Average Life equal to or greater than the lesser of the
Average Life of the Indebtedness being so redeemed, repurchased, acquired, or
retired, and the Average Life of the Notes, and (E) any purchase, redemption,
defeasance or other acquisition made pursuant to this clause (b)(ii) will be
excluded in the calculation of the amount of Restricted Payments; (iii)
dividends paid within 60 days after the date of declaration thereof if at such
date of declaration such dividend would have complied with this covenant;
provided, however, that the amount of such dividend will be included in the
calculation of the amount of Restricted Payments; and (iv) purchases of
outstanding shares of the Issuer's capital stock from former employees in an
amount not to exceed $5.0 million in the aggregate; provided, however, that such
purchases will be included in the calculation of the amount of Restricted
Payments; provided, however, that, at the time of, and after giving effect to,
any Restricted Payment permitted by clauses (i), (ii) and (iv), no Default or
Event of Default shall have occurred and be continuing.
(c) The amount of any Investment shall be measured on the date
made and shall not give effect to subsequent changes in value.
SECTION 4.6. Limitation on Restrictions on Distributions from
Restricted Subsidiaries. The Issuer will not, and will not permit any Restricted
Subsidiary to, create or otherwise cause or permit to exist or become effective
any consensual encumbrance or restriction on the ability of any Restricted
Subsidiary to (i) pay dividends or make any other distributions on its Capital
Stock to the Issuer or a Restricted Subsidiary or pay any Indebtedness or other
obligation owed to the Issuer, (ii) make any loans or advances to the Issuer or
(iii) transfer any of its property or assets to the Issuer or any Restricted
Subsidiary, except: (1) any encumbrance or restriction pursuant to a Credit
Facility or any agreement in effect at or entered into on the Issue Date; (2)
any encumbrance or restriction with respect to a Restricted Subsidiary pursuant
to an agreement relating to any Indebtedness or Capital Stock Incurred or issued
by such Restricted Subsidiary on or prior to the date on which such Restricted
Subsidiary was acquired by the Issuer or a Restricted Subsidiary (other than
Indebtedness or Capital Stock Incurred or issued as consideration for, or to
provide any portion of the funds or credit support utilized to consummate
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the transaction or series of related transactions pursuant to which such
Restricted Subsidiary became a Subsidiary or was acquired by the Issuer or a
Restricted Subsidiary) and outstanding on such date; (3) any encumbrance or
restriction pursuant to an agreement effecting a Refinancing of Indebtedness
Incurred pursuant to an agreement referred to in clause (1) or (2) of this
Section 4.6 or contained in any amendment to an agreement referred to in clause
(1) or (2) of this Section 4.6; provided, however, that the encumbrances and
restrictions with respect to such Restricted Subsidiary contained in any such
refinancing agreement or amendment taken as a whole are no less favorable to the
Noteholders than the encumbrances and restrictions with respect to such
Restricted Subsidiary contained in such predecessor agreements as determined in
good faith by the Board of Directors; (4) in the case of clause (iii), any
encumbrance or restriction that restricts in a customary manner the subletting,
assignment or transfer of any property or asset that is subject to a lease,
license or other contract or such lease, license or other such contract; (5) in
the case of clause (iii), contained in security agreements or mortgages securing
Indebtedness of a Restricted Subsidiary to the extent such encumbrance or
restrictions restrict the transfer of the property subject to such security
agreements or mortgages; (6) any restriction with respect to a Restricted
Subsidiary imposed pursuant to an agreement entered into for the sale or
disposition of all or substantially all the Capital Stock or assets of such
Restricted Subsidiary pending the closing of such sale or disposition; (7)
customary provisions with respect to the disposition or distribution of assets
or property in joint venture and other similar agreements; and (8) restrictions
on cash or other deposits or net worth imposed by customers under contracts
entered into in the ordinary course of business; provided that the Board of
Directors in good faith determines that such restrictions will not have a
material adverse impact on the Issuer's ability to make payments on the Notes.
SECTION 4.7. Limitation on Sale of Assets and Subsidiary
Stock. (a) The Issuer will not, and will not permit any Restricted Subsidiary
to, directly or indirectly, consummate any Asset Disposition unless (i) the
Issuer or such Restricted Subsidiary receives consideration at the time of such
Asset Disposition at least equal to the fair market value (including as to the
value of all non cash consideration), as determined in good faith by the Board
of Directors of the shares and assets subject to such Asset Disposition and (ii)
except in the case of a Tower Asset Exchange, at least 75% of the consideration
thereof received by the Issuer or such Restricted Subsidiary is in the form of
cash or cash equivalents.
Within 365 days after the receipt of any Net Available Cash
from an Asset Disposition, the Issuer or the applicable Restricted Subsidiary
may apply such Net Available Cash to: (A) prepay, repay, redeem or purchase
Indebtedness (other than Disqualified Stock) of a Restricted Subsidiary
(provided, that the applicable Restricted Subsidiary also may prepay, repay,
redeem or purchase its own outstanding Indebtedness) or Senior Indebtedness (in
each case other than Indebtedness owed to the Issuer or an Affiliate of the
Issuer); (B) make an offer with respect to the 2008 Notes, the 2009 Notes, the
2010 Notes or the Convertible Notes to the extent required in the indentures
governing the 2008 Notes, the 2009 Notes, the 2010 Notes and the Convertible
Notes, respectively; (C) acquire all or substantially all of the assets of an
entity engaged in a Permitted Business; (D) acquire Voting Stock of an entity
engaged in a Permitted Business from a Person that is not a Subsidiary of the
Issuer; provided, that (x) after giving effect thereto, the Issuer or its
Restricted Subsidiary owns a majority of such Voting Stock and (y) such
acquisition is otherwise made in accordance with this Indenture, including,
without limitation, Section 4.5; or (E) make a capital expenditure or acquire
other long-term assets that are used or
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useful in a Permitted Business. To the extent of the balance of such Net
Available Cash after application in accordance with clauses (A), (B), (C), (D)
or (E), the Issuer shall make an Offer (as defined in Section 4.7(b)) to Holders
of the Notes to purchase Notes pursuant to and subject to the conditions set
forth in paragraph (b) of this Section 4.7.
Notwithstanding the foregoing provisions, the Issuer and its
Restricted Subsidiaries shall not be required to apply any Net Available Cash in
accordance herewith except to the extent that the aggregate Net Available Cash
from all Asset Dispositions which are not applied in accordance with this
covenant exceeds $10.0 million. Pending application of Net Available Cash
pursuant to this covenant, such Net Available Cash shall be invested in
Permitted Investments.
For the purposes of this Section 4.7(a), the following are
deemed to be cash: (x) the assumption by the transferee of Indebtedness of the
Issuer (other than Disqualified Stock of the Issuer and other than Indebtedness
that is subordinated to the Notes) or Indebtedness of any Restricted Subsidiary
and the release of the Issuer or such Restricted Subsidiary from all liability
on such Indebtedness in connection with such Asset Disposition; (y) securities
received by the Issuer or any Restricted Subsidiary from the transferee that are
converted by the Issuer or such Restricted Subsidiary into cash within 20 days
of the applicable Asset Disposition (to the extent of the cash received); and
(z) any liabilities (as shown on the Issuer's or such Restricted Subsidiary's
most recent balance sheet) of the Issuer or any Restricted Subsidiary (other
than contingent liabilities and liabilities that are by their terms subordinated
to the Notes or any guarantee thereof) that are assumed by the transferee of any
such assets pursuant to a customary novation agreement that releases the Issuer
or any such Restricted Subsidiary from further liability.
(b) In the event of an Asset Disposition that requires the
purchase of Notes pursuant to paragraph (a) of this Section 4.7, the Issuer will
be required to purchase Notes tendered pursuant to an offer by the Issuer for
the Notes (the "Offer") at a purchase price of 100% of their principal amount as
of the date of purchase (without premium) plus accrued and unpaid interest to
the date of purchase in accordance with the procedures (including prorating in
the event of oversubscription) set forth in this Indenture. If the aggregate
purchase price of Notes tendered pursuant to the Offer is less than the Net
Available Cash allotted to the purchase of the Notes, the Issuer may use any
remaining Net Available Cash for general corporate purposes not otherwise
prohibited by this Indenture. If the aggregate purchase price of Notes tendered
pursuant to the Offer is greater than the Net Available Cash allotted to the
purchase of the Notes, the Trustee will select the Notes to be purchased on the
basis set forth in paragraph (c) of this Section 4.7. Upon completion of any
required Offer to the holders of the Notes, the amount of Net Available Cash
will be reset at zero. The Issuer shall not be required to make an Offer for
Notes pursuant to this Section 4.7 if the Net Available Cash available therefor
(after application of the proceeds as provided in the second paragraph of
Section 4.7(a)) are less than $10.0 million for all Asset Dispositions (which
lesser amounts shall be carried forward for purposes of determining whether an
Offer is required with respect to the Net Available Cash from any subsequent
Asset Disposition).
(c) (1) Promptly, and in any event within 30 days after the
Issuer becomes obligated to make an Offer, the Issuer shall be obligated to
deliver to the Trustee and send, by
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first-class mail to each Holder, at the address appearing in the security
register, a written notice stating that the Holder may elect to have his Notes
purchased by the Issuer either in whole or in part (subject to prorationing as
hereinafter described in the event the Offer is oversubscribed) in integral
multiples of $1,000 of principal amount, at the applicable purchase price. The
notice shall specify a purchase date not less than 30 days nor more than 60 days
after the date of such notice (the "Purchase Date") and shall contain all
instructions and materials necessary to tender Notes pursuant to the Offer.
(2) Not later than the date upon which written notice of an
Offer is delivered to the Trustee as provided below, the Issuer shall deliver to
the Trustee an Officer's Certificate as to (i) the amount of the Offer (the
"Offer Amount"), (ii) the allocation of the Net Available Cash from the Asset
Dispositions pursuant to which such Offer is being made and (iii) the compliance
of such allocation with the provisions of Section 4.7(a). Upon the expiration of
the period for which the Offer remains open (the "Offer Period"), the Issuer
shall deliver to the Trustee for cancellation the Notes or portions thereof
which have been properly tendered to and are to be accepted by the Issuer. Not
later than 11:00 a.m. (New York City time) on the Purchase Date, the Issuer
shall irrevocably deposit with the Trustee or with a paying agent (or, if the
Issuer is acting as Paying Agent, segregate and hold in trust) an amount in cash
sufficient to pay the Offer Amount for all Notes properly tendered to, not
withdrawn from and accepted by the Issuer. The Trustee shall, on the Purchase
Date, mail or deliver payment to each tendering Holder in the amount of the
purchase price.
(3) Holders electing to have a Note purchased will be required
to surrender the Note, together with all necessary endorsements and other
appropriate materials duly completed, to the Issuer at the address specified in
the notice at least three Business Days prior to the Purchase Date. Holders will
be entitled to withdraw their election in whole or in part if the Trustee or the
Issuer receives not later than one Business Day prior to the Purchase Date, a
facsimile transmission or letter setting forth the name of the Holder, the
principal amount of the Note (which shall be $1,000 in principal amount or an
integral multiple thereof) which was delivered for purchase by the Holder, the
aggregate principal amount of such Note (if any) that remains subject to the
original notice of the Offer and that has been or will be delivered for purchase
by the Issuer and a statement that such Holder is withdrawing his election to
have such Note purchased. If at the expiration of the Offer Period the aggregate
principal amount of Notes surrendered by Holders exceeds the Offer Amount, the
Trustee shall select the Notes to be purchased in accordance with the provisions
of Section 3.2 (with such adjustments as may be deemed appropriate by the
Trustee so that only securities in denominations of $1,000 principal amount, or
integral multiples thereof, shall be purchased). Holders whose Notes are
purchased only in part will be issued new Notes equal in principal amount to the
unpurchased portion of the Notes surrendered.
(4) A Note shall be deemed to have been accepted for purchase
at the time the Trustee, directly or through an agent, mails or delivers payment
therefor to the surrendering Holder.
(d) The Issuer will comply, to the extent applicable, with the
requirements of Section 14(e) of the Exchange Act and any other securities laws
or regulations in connection with the repurchase of Notes pursuant to this
covenant. To the extent that the provisions of any
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securities laws or regulations conflict with provisions of this covenant, the
Issuer will comply with the applicable securities laws and regulations and will
not be deemed to have breached its obligations under this covenant by virtue
thereof.
(e) The provisions of this Section 4.7 shall not apply to any
transaction that is permitted under the provisions of Section 5.1.
SECTION 4.8. Limitation on Transactions with Affiliates. (a)
The Issuer will not, and will not permit any Restricted Subsidiary to, directly
or indirectly, enter into or conduct any transaction or series of transactions
(including the purchase, sale, lease or exchange of any property, employee
compensation arrangements or the rendering of any service) with any Affiliate of
the Issuer (an "Affiliate Transaction") unless (i) the terms of such
transaction, taken as a whole, are no less favorable to the Issuer or such
Restricted Subsidiary, as the case may be, than those that could be obtained at
the time of such transaction in arm's-length dealings with a Person who is not
such an Affiliate; (ii) in the event such Affiliate Transaction involves an
aggregate amount in excess of $5.0 million, the terms of such transaction are
set forth in writing and shall have been approved by a majority of the members
of the Board of Directors having no personal stake in such Affiliate Transaction
(and such majority determines that such Affiliate Transaction satisfies the
criteria in clause (i) above) and (iii) in the event such Affiliate Transaction
involves an aggregate amount in excess of $10.0 million, the Issuer has received
a written opinion from a nationally recognized independent investment banking
firm that such Affiliate Transaction is fair to the Issuer and its Restricted
Subsidiaries from a financial point of view.
(b) The provisions of paragraph (a) of this Section 4.8 shall
not prohibit (i) any Restricted Payment permitted to be made pursuant to Section
4.5, (ii) any issuance of securities, or other payments, awards or grants in
cash, securities or otherwise pursuant to, or the funding of, employment
arrangements, stock options and stock ownership plans approved by the Board of
Directors, or any arrangements relating thereto, (iii) the grant of stock
options or similar rights to employees and directors of the Issuer pursuant to
plans approved by the Board of Directors, (iv) loans or advances to employees in
the ordinary course of business in accordance with the past practices of the
Issuer or its Restricted Subsidiaries, (v) the payment of reasonable fees to
directors of the Issuer and its Restricted Subsidiaries who are not employees of
the Issuer or its Restricted Subsidiaries, (vi) any transaction between the
Issuer and a Restricted Subsidiary or between Restricted Subsidiaries, (vii) the
issuance or sale of any Capital Stock (other than Disqualified Stock) of the
Issuer, (viii) any transaction consummated pursuant to the terms of any
agreement described in the Issuer's Form 10-K for the year ended December 31,
1999 or Forms 10-Q or Forms 8-K filed prior to the Issue Date, including the
exhibits and documents included by reference therein, giving effect to any
subsequent supplements, amendments, modifications or alterations thereof that
are approved by the disinterested members of the Board of Directors, (ix) any
transaction in the ordinary course of business between the Issuer or any
Restricted Subsidiary and any Affiliate of the Issuer relating to the
acquisition, management, construction, leasing or licensing of Tower Assets,
provided, however, that such transaction is on terms that are no less favorable,
taken as a whole, to the Issuer or the relevant Restricted Subsidiary than those
that could have been obtained in a comparable transaction by the Issuer or such
Restricted Subsidiary with an unrelated Person or is otherwise on terms that,
taken as a whole, the Issuer has determined to be fair to the Issuer or the
relevant Restricted
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Subsidiary) and (x) any transaction between the Issuer or any of its Restricted
Subsidiaries and any of its Affiliates involving ordinary course investment
banking, commercial banking or related activities.
SECTION 4.9. Change of Control. (a) Upon the occurrence of a
Change of Control, each Holder shall have the right to require that the Issuer
repurchase all or any part of such Holder's Notes at a purchase price in cash
equal to 101% of the principal amount thereof as of the date of repurchase, plus
accrued and unpaid interest, if any, to the date of repurchase, in accordance
with the terms contemplated in Section 4.9(b).
(b) Within 30 days following any Change of Control, the Issuer
shall mail a notice to each Holder at its registered address with a copy to the
Trustee stating:
(1) that a Change of Control has occurred and that
such Holder has the right to require the Issuer to purchase
such Holder's Notes in denominations of $1,000 principal
amount or any integral multiple thereof at a purchase price in
cash equal to 101% of the principal amount thereof as of the
date of repurchase, plus accrued and unpaid interest, if any,
to the date of repurchase;
(2) the circumstances and relevant facts regarding
such Change of Control (including information with respect to
pro forma historical income, cash flow and capitalization
after giving effect to such Change of Control);
(3) the repurchase date (which shall be no earlier
than 30 days nor later than 60 days from the date such notice
is mailed); and
(4) the instructions determined by the Issuer,
consistent with this Section 4.9, that a Holder must follow in
order to have its Notes purchased by the Issuer.
(c) Holders electing to have a Note purchased will be required
to surrender the Note, together with all necessary endorsements and other
appropriate materials duly completed, to the Issuer at the address specified in
the notice at least three Business Days prior to the purchase date. Holders will
be entitled to withdraw their election if the Trustee or the Issuer receives not
later than one Business Day prior to the purchase date, a facsimile transmission
or letter setting forth the name of the Holder, the principal amount of the Note
which was delivered for purchase by the Holder as to which such notice of
withdrawal is being submitted and a statement that such Holder is withdrawing
his election to have such Note purchased.
(d) On the purchase date, all Notes purchased by the Issuer
under this Section 4.9 shall be delivered to the Trustee for cancellation, and
the Issuer shall pay the purchase price, including premium, if any, plus accrued
and unpaid interest, if any, to the Holders entitled thereto.
(e) The Issuer will comply, to the extent applicable, with the
requirements of Section 14(e) of the Exchange Act and any other securities laws
or regulations in connection with the repurchase of Notes pursuant to this
Section 4.9. To the extent that the provisions of any securities laws or
regulations conflict with provisions of this Section 4.9, the Issuer will
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comply with the applicable securities laws and regulations and will not be
deemed to have breached its obligations under this Section 4.9 by virtue
thereof.
(f) The Issuer will not be required to make an offer pursuant
to this Section 4.9 upon a Change of Control if a third party, in the manner, at
the times and otherwise in compliance with the requirements set forth in this
Indenture applicable to a Change of Control made by the Issuer, makes an offer
to purchase and purchases all Notes validly tendered and not withdrawn under
such offer.
(g) Notwithstanding the occurrence of a Change of Control, the
Issuer shall not be obligated to repurchase the Notes or otherwise comply with
this Section 4.9 if the Issuer has irrevocably elected to redeem all the Notes
in accordance with Article III; provided that the Issuer does not default in its
redemption obligations pursuant to such election.
SECTION 4.10. Limitation on Sale or Issuance of Capital Stock
of Restricted Subsidiaries. The Issuer (i) will not, and will not permit any
Restricted Subsidiary to, transfer, convey, sell, lease or otherwise dispose of
any Capital Stock of any Restricted Subsidiary to any Person (other than to the
Issuer or a Wholly Owned Subsidiary), and (ii) will not permit any Restricted
Subsidiary to issue any of its Capital Stock (other than, to the extent
necessary or mandated by applicable law, shares of its Capital Stock
constituting directors' qualifying shares or the ownership by foreign nationals
of Capital Stock of any Restricted Subsidiary) to any Person other than to the
Issuer or a Subsidiary unless in either case (a) the Issuer's and Restricted
Subsidiary's minority equity interest in such Person after giving effect to any
such disposition, would be permitted under Section 4.5; and (b) the net cash
proceeds from such transfer, conveyance, sale, lease or other disposition are
applied in accordance with Section 4.7.
SECTION 4.11. Limitation on Liens. The Issuer will not, and
will not permit any Restricted Subsidiary to, directly or indirectly, create or
permit to exist any Lien on any of its property or assets (including Capital
Stock), whether owned on the Issue Date or thereafter acquired, securing any
obligation, other than Permitted Liens, unless contemporaneously therewith
effective provision is made to secure the Notes equally and ratably with (or on
a senior basis to, in the case of Subordinated Obligations) such obligation for
so long as such obligation is so secured.
SECTION 4.12. Limitation on Sale/Leaseback Transactions. The
Issuer will not, and will not permit any Restricted Subsidiary to, enter into
any Sale/Leaseback Transaction with respect to any property unless (i) the
Issuer or such Restricted Subsidiary would be entitled to (A) Incur Indebtedness
in an amount equal to the Attributable Indebtedness with respect to such
Sale/Leaseback Transaction pursuant to Section 4.3 and (B) create a Lien on such
property securing such Attributable Indebtedness without equally and ratably
securing the Notes pursuant to Section 4.11, (ii) the net cash proceeds received
by the Issuer or any Restricted Subsidiary in connection with such
Sale/Leaseback Transaction are at least equal to the fair value (as determined
in good faith by the Board of Directors) of such property and (iii) the transfer
of such property is permitted by, and the Issuer or such Restricted Subsidiary
applies the proceeds of such transaction in compliance with, Section 4.7.
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SECTION 4.13. Compliance with Laws. The Issuer shall comply,
and shall cause each of its Restricted Subsidiaries to comply, with all
applicable statutes, rules, regulations, orders and restrictions of the United
States of America, all states and municipalities thereof, and of any
governmental department, commission, board, regulatory authority, bureau, agency
and instrumentality of the foregoing, in respect of the conduct of their
respective businesses and the ownership of their respective properties, except
for such noncompliances as are not in the aggregate reasonably likely to have a
material adverse effect on the financial condition or results of operations of
the Issuer and its Subsidiaries, taken as a whole.
SECTION 4.14. Compliance Certificate. The Issuer shall deliver
to the Trustee within 120 days after the end of each fiscal year of the Issuer
an Officer's Certificate signed by the chief executive officer, the chief
financial officer or the chief accounting officer stating that in the course of
the performance by the signer of his duties as an Officer of the Issuer he would
normally have knowledge of any Default or Event of Default and whether or not
the signers know of any Default or Event of Default that occurred during such
period. If he does, the certificate shall describe the Default or Event of
Default, its status and what action the Issuer is taking or proposes to take
with respect thereto. The Issuer also shall comply with TIA ss. 314(a)(4).
SECTION 4.15. Further Instruments and Acts. Upon reasonable
request of the Trustee, the Issuer will 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 4.16. Maintenance of Office or Agency. The Issuer
shall maintain the office or agency required under Section 2.3. The Issuer shall
give prior written notice to the Trustee of the location, and any change in the
location, of such office or agency. If at any time the Issuer shall fail to
maintain any such required office or agency or shall fail to furnish the Trustee
with the address thereof, such presentations, surrenders, notices and demands
may be made or served at the address of the Trustee set forth in Section 10.2.
SECTION 4.17. Corporate Existence. Except as otherwise
permitted by Article V and Section 4.9, the Issuer shall do or cause to be done,
at its own cost and expense, all things necessary to preserve and keep in full
force and effect its corporate existence and the corporate, partnership or
limited liability company existence of each of its Significant Subsidiaries in
accordance with the respective organizational documents of each such Subsidiary
and the material rights (charter and statutory) and franchises of the Issuer and
each such Subsidiary; provided, however, that the Issuer shall not be required
to preserve, with respect to itself, any material right or franchise and, with
respect to any of its Significant Subsidiaries, any such existence, material
right or franchise, if the Board of Directors shall determine in good faith
(such determination to be evidenced by a board resolution), that the
preservation thereof is no longer desirable in the conduct of the business of
the Issuer and the Subsidiaries, taken as a whole.
SECTION 4.18. Payment of Taxes and Other Claims. The Issuer
shall pay or discharge or cause to be paid or discharged, before the same shall
become delinquent, (i) all material taxes, assessments and governmental charges
(including withholding taxes and any
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penalties, interest and additions to taxes) levied or imposed upon it or any of
its Restricted Subsidiaries or properties of it or any of its Restricted
Subsidiaries and (ii) all lawful claims for labor, materials and supplies that,
if unpaid, might by law become a Lien upon the property of it or any of its
Restricted Subsidiaries; provided, however, that the Issue shall not be required
to pay or discharge or cause to be paid or discharged any such tax, assessment,
charge or claim whose amount, applicability or validity is being contested in
good faith by appropriate proceedings properly instituted and diligently
conducted for which adequate reserves, to the extent required under GAAP, have
been taken.
SECTION 4.19. Maintenance of Properties and Insurance. (a) The
Issuer shall, and shall cause each of its Significant Subsidiaries to, maintain
its material properties in good working order and condition (subject to ordinary
wear and tear) and make or cause to be made all necessary repairs, renewals,
replacements, additions, betterments and improvements thereto and actively
conduct and carry on its business, all as in the reasonable judgment of the
Issuer is necessary so that the business carried on by Issuer and its
Significant Subsidiaries may be actively conducted; provided, however, that
nothing in this Section 4.19 shall prevent the Issuer or any of its Subsidiaries
from discontinuing the operation and maintenance of any of its properties, if
such discontinuance is, in the good faith judgment of the Issuer or the
Subsidiary, as the case may be, desirable in the conduct of their respective
businesses and is not disadvantageous in any material respect to the Holders.
(b) The Issuer shall provide or cause to be provided, for
itself and each of its Significant Subsidiaries, insurance (including
appropriate self-insurance) against loss or damage of the kinds that, in the
good faith judgment of the Issuer, are adequate and appropriate for the conduct
of the business of the Issuer and such Subsidiaries in a prudent manner, with
reputable insurers or with the government of the United States of America, any
state thereof or any agency or instrumentality of such governments, in such
amounts, with such deductibles, and by such methods as shall be customary, in
the good faith judgment of the Issuer, for companies similarly situated in the
industry.
ARTICLE V
SUCCESSOR ISSUER
SECTION 5.1. When the Issuer May Merge or Transfer Assets. The
Issuer will not consolidate with or merge with or into, or convey, transfer or
lease, in one transaction or a series of transactions, all or substantially all
its assets to, any Person, unless:
(i) the resulting, surviving or transferee Person (the
"Successor Issuer") will be a Person organized and existing under the
laws of the United States of America, any State thereof or the District
of Columbia and the Successor Issuer (if not the Issuer) will expressly
assume, by supplemental indenture, executed and delivered to the
Trustee, in form satisfactory to the Trustee, all the obligations of
the Issuer under the Notes and this Indenture;
(ii) immediately after giving effect to such transaction on a
pro forma basis (and treating any Indebtedness which becomes an
obligation of the Successor Issuer or any Restricted Subsidiary as a
result of such transaction as having been Incurred by the
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Successor Issuer or such Restricted Subsidiary at the time of such
transaction), no Default or Event of Default will have occurred and be
continuing;
(iii) except (A) in the case of a merger of the Issuer into a
Wholly Owned Subsidiary, (B) a merger entered into solely for the
purpose of reincorporating the Issuer in another jurisdiction or (C) a
merger the Issuer enters into solely for the purpose of forming a
holding company to hold all of the outstanding capital stock of the
Issuer, immediately after giving effect to such transaction on a pro
forma basis as if such transaction had occurred at the beginning of the
applicable four quarter period, the Issuer or the Person formed by or
surviving any such consolidation or merger (if other than the Issuer),
or to which such conveyance, transfer, lease or other disposition shall
have been made, either (x) would have been permitted to incur at least
$1.00 of additional Indebtedness under Section 4.3(a) or (y) would have
had an Indebtedness to Adjusted EBITDA Ratio immediately after giving
effect to such consolidation, merger, conveyance, transfer, lease or
other disposition no greater than the Indebtedness to Adjusted EBITDA
Ratio immediately prior to such transaction; and
(iv) the Issuer will have delivered to the Trustee an
Officer's Certificate and an Opinion of Counsel, each stating that such
consolidation, merger or transfer and such supplemental indenture (if
any) comply with this Indenture, as set forth in this Indenture.
The Successor Issuer will succeed to, and be substituted for,
and may exercise every right and power of, the Issuer under this Indenture, but
the predecessor Issuer in the case of a conveyance, transfer or lease of all its
assets or substantially all its assets will be released from the obligations
under this Indenture and the Notes, including without limitation the obligation
to pay the principal of and interest on the Notes.
ARTICLE VI
DEFAULTS AND REMEDIES
SECTION 6.1. Events of Default. An "Event of Default" occurs
if:
(1) the Issuer defaults in any payment of interest on any Note
when the same becomes due and payable, and such default continues for a
period of 30 days;
(2) the Issuer defaults in the payment of the principal of any
Note when the same becomes due and payable at its Stated Maturity, upon
optional or mandatory redemption, upon required repurchase, upon
declaration or otherwise;
(3) the Issuer fails to comply with its obligations under
Article V;
(4) the Issuer fails to comply with Section 4.2, 4.3, 4.4,
4.5, 4.6, 4.7, 4.8, 4.9, 4.10, 4.11 or 4.12 (other than a failure to
purchase Notes when required pursuant to Section 4.7 or 4.9, which
failure shall constitute an Event of Default under Section 6.1(2)) and
such failure continues for 30 days after the notice specified below;
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(5) the Issuer fails to comply with any of its agreements in
the Notes or this Indenture (other than those referred to in (1), (2),
(3) or (4) above) and such failure continues for 60 days after the
notice specified below;
(6) the Issuer or any Significant Subsidiary of the Issuer
fails to pay any Indebtedness within any applicable grace period
provided in such Indebtedness 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
$10.0 million or its foreign currency equivalent at the time;
(7) the Issuer or a Significant Subsidiary of the Issuer
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 in which it is the debtor;
(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 enters an order or
decree under any Bankruptcy Law that:
(A) is for relief against the Issuer or any
Significant Subsidiary of the Issuer in an involuntary case;
(B) appoints a Custodian of the Issuer or any
Significant Subsidiary or for any substantial part of its
property of the Issuer or any Significant Subsidiary; or
(C) orders the winding up or liquidation of the
Issuer or any Significant Subsidiary of the Issuer
(or any similar relief is granted under any foreign laws) and the
order, decree or relief remains unstayed and in effect for 90 days; or
(9) any final judgment or decree for the payment of money in
excess of $10.0 million (net of any amounts with respect to which a
creditworthy insurance company has acknowledged full liability (subject
to any deductible amounts of less than $10.0 million required to be
paid by the Issuer or the Significant Subsidiary of the Issuer in
accordance with the applicable insurance policy)) is rendered against
the Issuer or any Significant Subsidiary of the Issuer and either (A)
an enforcement proceeding has been commenced by any creditor upon such
judgment or decree or (B) such judgment or decree remains
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unpaid and outstanding for a period of 60 days following such judgment
and is not discharged, waived or stayed within 10 days after notice.
The foregoing will constitute Events of Default whatever the
reason for any such Event of Default and whether it is voluntary or involuntary
or is effected by operation of law or pursuant to any judgment, decree or order
of any court or any order, rule or regulation of any administrative or
governmental body.
The term "Bankruptcy Law" means Title 11, United States Code,
or any similar Federal or state law for the relief of debtors. The term
"Custodian" means any receiver, trustee, assignee, liquidator, custodian or
similar official under any Bankruptcy Law.
A Default under clause (4), (5) and (9) of this Section 6.1 is
not an Event of Default until the Trustee by notice to the Issuer or the Holders
of at least 25% in aggregate principal amount of the outstanding Notes by notice
to the Issuer give notice of the Default and the Issuer does not cure such
Default within the time specified in said clause (4), (5) or (9) after receipt
of such notice. Such notice must specify the Default, demand that it be remedied
and state that such notice is a "Notice of Default".
The Issuer shall deliver to the Trustee, within 30 days after
it obtains knowledge of the occurrence thereof, written notice in the form of an
Officer's Certificate of any Event of Default under clause (6) of this Section
6.1 and any event which with the giving of notice or the lapse of time would
become an Event of Default under clause (4), (5) or (9) of this Section 6.1 and
what action the Issuer is taking or proposes to take with respect thereto.
SECTION 6.2. Acceleration. If an Event of Default (other than
an Event of Default specified in Section 6.1(7) or (8) with respect to the
Issuer) occurs and is continuing, the Trustee by notice to the Issuer, or the
Holders of at least 25% in aggregate principal amount of the outstanding Notes
by notice to the Issuer, may declare the principal amount of, and accrued but
unpaid interest on all the Notes to be due and payable. Upon such a declaration,
such principal amount and interest shall be due and payable immediately. If an
Event of Default specified in Section 6.1(7) or (8) with respect to the Issuer
occurs and is continuing, the principal amount of, and accrued interest on all
the Notes shall ipso facto become and be immediately due and payable without any
declaration or other act on the part of the Trustee or any Holders. The Holders
of a majority in aggregate principal amount of the outstanding Notes 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 and the Trustee has
been paid all amounts due to it pursuant to Section 7.7. No such rescission
shall affect any subsequent Default or impair any right consequent thereto.
SECTION 6.3. Other Remedies. If an Event of Default occurs and
is continuing, the Trustee may pursue any available remedy to collect the
payment of principal amount of or interest on the Notes or to enforce the
performance of any provision of the Notes or this Indenture.
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The Trustee may maintain a proceeding even if it does not
possess any of the Notes or does not produce any of them in the proceeding. A
delay or omission by the Trustee or any Noteholder 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, to the extent
permitted by law, cumulative.
SECTION 6.4. Waiver of Past Defaults. The Holders of a
majority in aggregate principal amount of the Notes then outstanding by notice
to the Trustee may waive any past or existing Default and its consequences
except (i) a Default in the payment of the principal of or interest on a Note or
(ii) a Default in respect of a provision that under Section 9.2 cannot be
amended without the consent of each Noteholder affected. When a Default is
waived, it is deemed cured, and any Event of Default arising therefrom shall be
deemed to have been cured, but no such waiver shall extend to any subsequent or
other Default or impair any consequent right.
SECTION 6.5. Control by Majority. Upon provision of reasonable
indemnity to the Trustee satisfactory to the Trustee, the Holders of a majority
in aggregate principal amount of the Notes then outstanding may direct the time,
method and place of conducting any proceeding for any remedy available to the
Trustee or of exercising any trust or power conferred on the Trustee. However,
the Trustee, which may rely on opinions of counsel, may refuse to follow any
direction that conflicts with law or this Indenture or, subject to Section 7.1,
that the Trustee determines is unduly prejudicial to the rights of other
Noteholders 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.
SECTION 6.6. Limitation on Suits. A Holder may not pursue
any remedy with respect to this Indenture or the Notes unless:
(i) the Holder gives to the Trustee previous written
notice stating that an Event of Default is continuing;
(ii) the Holders of at least 25% in aggregate principal amount
of the Notes then outstanding make a written request to the Trustee to
pursue the remedy;
(iii) such Holder or Holders offer to the Trustee reasonable
security or indemnity against any loss, liability or expense;
(iv) the Trustee does not comply with the request within 60
days after receipt of the request and the offer of security or
indemnity; and
(v) the Holders of a majority in aggregate principal amount of
the Notes then outstanding do not give the Trustee a direction
inconsistent with such request within such 60-day period.
A Noteholder may not use this Indenture to prejudice the
rights of another Noteholder or to obtain a preference or priority over another
Noteholder.
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SECTION 6.7. Rights of Holders to Receive Payment.
Notwithstanding any other provision of this Indenture, the right of any Holder
to receive payment of the principal amount of and interest on the Notes held by
such Holder, on or after the respective due dates expressed in the Notes, 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.
SECTION 6.8. Collection Suit by Trustee. If an Event of
Default specified in Section 6.1(1) or (2) occurs and is continuing, the Trustee
may recover judgment in its own name and as trustee of an express trust against
the Issuer 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 7.7.
SECTION 6.9. 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 Noteholders allowed
in any judicial proceedings relative to the Issuer, its creditors or its
property and shall be entitled and empowered to collect, receive and distribute
any money or other securities or property payable or deliverable on any such
claims and to distribute the same, 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 7.7.
SECTION 6.10. Priorities. If the Trustee collects any money
or property pursuant to this Article VI, it shall pay out the money or property
in the following order:
FIRST: to the Trustee for amounts due under Section 7.7;
SECOND: to Noteholders for amounts due and unpaid on the
Notes for principal and interest, ratably, without preference or
priority of any kind, according to the amounts due and payable on the
Notes for principal amount and interest, respectively; and
THIRD: to the Issuer or to such party as a court of competent
jurisdiction shall direct.
The Trustee may fix a record date and payment date for any
payment to Noteholders pursuant to this Section 6.10. At least 15 days before
such record date, the Issuer shall mail to each Noteholder and the Trustee 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 and expenses,
against any party litigant in the suit, having due regard to the merits and good
faith of the claims or defenses made by the
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party litigant. This Section 6.11 does not apply to a suit by the Trustee, a
suit by a Holder pursuant to Section 6.7 or a suit by Holders of more than 10%
in aggregate principal amount of the outstanding Notes.
SECTION 6.12. Waiver of Stay or Extension Laws. The Issuer (to
the extent it may lawfully do so) shall not at any time insist upon, or plead,
or in any manner whatsoever claim or take the benefit or advantage of, any stay
or extension law wherever enacted, now or at any time hereafter in force, which
may affect the covenants or the performance of this Indenture; and the Issuer
(to the extent that it may lawfully do so) hereby expressly waives all benefit
or advantage of any such law, and shall not hinder, delay or impede the
execution of any power herein granted to the Trustee, but shall suffer and
permit the execution of every such power as though no such law had been enacted.
ARTICLE VII
TRUSTEE
SECTION 7.1. 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:
(i) the Trustee undertakes to perform such duties and only
such duties as are specifically set forth in this Indenture and the TIA
and no implied covenants or obligations shall be read into this
Indenture against the Trustee; and
(ii) 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, in the case of any such certificates or
opinions which by any provision hereof are specifically required to be
furnished to the Trustee, the Trustee shall 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:
(i) this paragraph does not limit the effect of paragraph
(b) of this Section 7.1;
(ii) 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
(iii) 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 6.5.
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(d) Whether or not therein expressly so provided, every
provision of this Indenture that in any way relates to the Trustee is subject to
paragraphs (a), (b) and (c) of this Section 7.1.
(e) Money held in trust by the Trustee need not be segregated
from other funds except to the extent required by law.
(f) 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.
(g) 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 7.1 and to the provisions of the TIA.
SECTION 7.2. Rights of Trustee. (a) The Trustee may rely upon,
and shall be fully protected from acting or refraining from acting, on any
document believed by it to be genuine and to have been signed or presented by
the proper person. The Trustee need not investigate any fact or matter stated in
the document.
(b) Before the Trustee acts or refrains from acting, it may
request an Officer's Certificate or an Opinion of Counsel or both. The Trustee
shall not be liable for any action it takes or omits to take in good faith in
reliance on the Officer's Certificate or Opinion of Counsel.
(c) The Trustee may act through agents and shall not be
responsible for the misconduct or negligence of any agent appointed with due
care.
(d) The Trustee shall not be liable for any action it takes or
omits to take in good faith 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 of its selection, and
the advice or opinion of counsel with respect to legal matters relating to this
Indenture and the Notes 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 be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders pursuant to this Indenture, unless such Holders
shall have offered to the Trustee reasonable security or indemnity against the
costs, expenses and liabilities which might be incurred by it in compliance with
such request or direction.
(g) The Trustee shall not be charged with knowledge of any
Default or Event of Default with respect to the Notes unless either (1) a Trust
Officer shall have actual knowledge
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of such Default or Event of Default or (2) written notice of such Default or
Event of Default shall have been given to the Trustee by the Issuer or by any
Holder of the Notes.
SECTION 7.3. Individual Rights of Trustee. The Trustee in its
individual or any other capacity may become the owner or pledgee of Notes and
may otherwise deal with the Issuer or its respective Affiliates with the same
rights it would have if it were not Trustee. Any Paying Agent, Registrar,
co-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 7.4. 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 Notes, it shall not be accountable for the Issuer's use of
the proceeds from the Notes, and it shall not be responsible for any statement
of the Issuer in this Indenture or in any document issued in connection with the
sale of the Notes or in the Notes other than the Trustee's certificate of
authentication.
SECTION 7.5. Notice of Defaults. If a Default or an Event of
Default occurs and is continuing and if it is known to the Trustee, the Trustee
must mail to each Noteholder notice of the Default within the earlier of 90 days
after it occurs or 30 days after it is known to a Trust Officer or written
notice of it is received by the Trustee. Except in the case of a Default in
payment of principal of, premium (if any) or interest on any Note, the Trustee
may withhold notice if and so long as a committee of its Trust Officers in good
faith determines that withholding notice is not opposed to the interests of
Noteholders.
SECTION 7.6. Reports by Trustee to Holders. As promptly as
practicable after each January 15 beginning with the January 15 following the
date of this Indenture, and in any event prior to March 15 in each year, the
Trustee, if applicable, shall mail to each Noteholder a brief report dated as of
such January 15 that complies with TIA ss. 313(a). The Trustee also shall comply
with TIA ss. 313(b). The Trustee shall promptly deliver to the Issuer a copy of
any report it delivers to Holders pursuant to this Section 7.6.
A copy of each report at the time of its mailing to
Noteholders shall be filed by the Trustee with the SEC and each stock exchange
(if any) on which the Notes are listed. The Issuer agrees to notify promptly the
Trustee whenever the Notes become listed on any stock exchange and of any
delisting thereof.
SECTION 7.7. Compensation and Indemnity. The Issuer shall pay
to the Trustee from time to time such compensation for its services as the
Issuer and the Trustee shall from time to time agree in writing. The Trustee's
compensation shall not be limited by any law on compensation of a trustee of an
express trust. The Issuer shall reimburse the Trustee upon request for all
reasonable fees and expenses, including out-of-pocket expenses, incurred or made
by it in connection with the performance of its duties hereunder, including
costs of collection, in addition to such compensation for its services, except
any such expense, disbursement or advance as may arise from its negligence,
willful misconduct or bad faith, unless the Trustee shall have complied with the
applicable standard of care required by the TIA. Such expenses shall include the
reasonable compensation and expenses, disbursements and advances of the
Trustee's agents, counsel, accountants and experts. The Trustee shall provide
the Issuer
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reasonable notice of any expenditure not in the ordinary course of business;
provided that prior approval by the Issuer of any such expenditure shall not be
a requirement for the making of such expenditure nor for reimbursement by the
Issuer thereof. The Issuer shall indemnify each of the Trustee and any
predecessor Trustees (and their respective officers, directors, employees and
agents) against any and all loss, damage, claim, liability or expense (including
reasonable attorneys' fees and expenses) (other than taxes applicable to the
Trustee's compensation hereunder) incurred by it in connection with the
acceptance or administration of this trust and the performance of its duties
hereunder. The Trustee shall notify the Issuer promptly of any claim for which
it may seek indemnity. Failure by the Trustee to so notify the Issuer shall not
relieve the Issuer of its obligations hereunder. The Issuer shall defend the
claim and the Trustee may have separate counsel, and the Issuer will pay the
reasonable fees and expenses of such counsel. The Issuer need not reimburse any
expense or indemnify against any loss, liability or expense incurred by the
Trustee through the Trustee's own willful misconduct, negligence or bad faith,
unless the Trustee shall have complied with the applicable standard of care
required by the TIA.
To secure the Issuer's payment obligations in this Section
7.7, the Trustee shall have a lien prior to the Notes on all money or property
held or collected by the Trustee other than money or property held in trust to
pay principal of and interest on particular Notes.
The Issuer's payment obligations pursuant to this Section 7.7
shall survive the resignation or removal of the Trustee and discharge of this
Indenture. When the Trustee incurs expenses after the occurrence of a Default
specified in Section 6.1(7) or (8) with respect to the Issuer, the expenses are
intended to constitute expenses of administration under the Bankruptcy Law,
provided, however, that this shall not affect the Trustee's rights as set forth
in the preceding paragraph or Section 6.10.
SECTION 7.8. Replacement of Trustee. The Trustee may resign at
any time with 30 days' notice to the Issuer. The Holders of a majority in
principal amount of the Notes then outstanding, may remove the Trustee with 30
days notice to the Trustee and the Issuer and may appoint a successor Trustee.
The Issuer shall remove the Trustee if:
(i) the Trustee fails to comply with Section 7.10;
(ii) the Trustee is adjudged bankrupt or insolvent;
(iii) a receiver or other public officer takes charge of the
Trustee or its property; or
(iv) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns, is removed by the Issuer or by the
Holders of a majority in principal amount of the Notes and such Holders do not
reasonably promptly appoint a successor Trustee, or if a vacancy exists in the
office of Trustee for any reason (the Trustee in such event being referred to
herein as the retiring Trustee), the Issuer shall promptly appoint a successor
Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Issuer. Thereupon the resignation
or removal of the retiring Trustee
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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 Noteholders. 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 7.7.
If a successor Trustee does not take office within 30 days
after the retiring Trustee resigns or is removed, the retiring Trustee or the
Holders of 10% in principal amount of the Notes 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
Noteholder may petition any court of competent jurisdiction for the removal of
the Trustee and the appointment of a successor Trustee.
SECTION 7.9. 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, provided that such corporation shall
be eligible under this Article VII and TIA ss. 3.10(a).
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 Notes 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 Notes so
authenticated; and in case at that time any of the Notes shall not have been
authenticated, any successor to the Trustee may authenticate such Notes either
in the name of any predecessor hereunder or in the name of the successor to the
Trustee; and in all such cases such certificates shall have the full force which
it is anywhere in the Notes or in this Indenture provided that the certificate
of the Trustee shall have.
SECTION 7.10. Eligibility; Disqualification. The Trustee shall
at all times satisfy the requirements of TIA ss. 310(a). The Trustee shall have
a combined capital and surplus of at least $50,000,000 as set forth in its most
recent published annual report of condition. The Trustee shall comply with TIA
ss. 310(b); provided, however, that there shall be excluded from the operation
of TIA ss. 310(b)(1) any indenture or indentures under which other securities or
certificates of interest or participation in other securities of the Issuer are
outstanding if the requirements for such exclusion set forth in TIA ss.
310(b)(1) are met.
SECTION 7.11. Preferential Collection of Claims Against
Issuer. The Trustee shall comply with TIA ss. 311(a), excluding any creditor
relationship listed in TIA ss.311(b). A Trustee who has resigned or been removed
shall be subject to TIA ss. 311(a) to the extent indicated.
ARTICLE VIII
DISCHARGE OF INDENTURE; DEFEASANCE
SECTION 8.1. Discharge of Liability on Notes; Defeasance. (a)
When (i) the Issuer delivers to the Trustee all outstanding Notes (other than
Notes replaced pursuant
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to Section 2.7) for cancellation or (ii) all outstanding Notes have become due
and payable, whether at maturity or as a result of the mailing of a notice of
redemption pursuant to Article III hereof or the Notes will become due and
payable at their Stated Maturity within 91 days, or the Notes are to be called
for redemption within 91 days 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 Issuer, and, in each case of this clause (ii), the Issuer
irrevocably deposits or causes to be deposited with the Trustee funds sufficient
to pay at maturity or upon redemption all outstanding Notes, including interest
thereon to maturity or such redemption date (other than Notes replaced pursuant
to Section 2.7), and if in either case the Issuer pays all other sums payable
hereunder by the Issuer, then this Indenture shall, subject to Section 8.1(c),
cease to be of further effect. The Trustee shall acknowledge satisfaction and
discharge of this Indenture on demand of the Issuer accompanied by an Officer's
Certificate and an Opinion of Counsel from the Issuer that all conditions
precedent provided herein for relating to satisfaction and discharge of this
Indenture have been complied with and at the cost and expense of the Issuer.
(b) Subject to Sections 8.1(c) and 8.2, the Issuer at any time
may terminate (i) all of its obligations under the Notes and this Indenture
("legal defeasance option") or (ii) its obligations under Sections 4.2, 4.3,
4.4, 4.5, 4.6, 4.7, 4.8, 4.9, 4.10, 4.11, 4.12, 4.14, 4.18 and 4.19 and the
operation of Sections 6.1(6), 6.1(7) (but only with respect to a Significant
Subsidiary), 6.1(8) (but only with respect to a Significant Subsidiary), 6.1(9)
and 5.1(iii) ("covenant defeasance option"). The Issuer may exercise its legal
defeasance option notwithstanding its prior exercise of its covenant defeasance
option.
If the Issuer exercises its legal defeasance option, payment
of the Notes may not be accelerated because of an Event of Default. If the
Issuer exercises its covenant defeasance option, payment of the Notes may not be
accelerated because of an Event of Default specified in Section 6.1(4), 6.1(5),
6.1(6), 6.1(7) (but only with respect to a Significant Subsidiary), 6.1(8) (but
only with respect to a Significant Subsidiary), 6.1(9), 6.1(10) or because of
the failure of the Issuer to comply with Section 5.1(iii).
Upon satisfaction of the conditions set forth herein and upon
request of the Issuer, the Trustee shall acknowledge in writing the discharge of
those obligations that the Issuer terminates.
(c) Notwithstanding clauses (a) and (b) above, the Issuer's
obligations in Sections 2.3, 2.4, 2.5, 2.7, 4.1, 4.13, 4.15, 4.16, 4.17, 7.7,
7.8, 8.4, 8.5 and 8.6 shall survive until the Notes have been paid in full.
Thereafter, the Issuer's obligations in Sections 7.7, 8.4 and 8.5 shall survive.
SECTION 8.2. Conditions to Defeasance. The Issuer may
exercise its legal defeasance option or its covenant defeasance option only if:
(i) the Issuer irrevocably deposits or causes to be deposited
in trust with the Trustee money or U.S. Government Obligations which
through the scheduled payment of principal and interest in respect
thereof in accordance with their terms will provide cash at such times
and in such amounts as will be sufficient to pay principal and interest
when
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due on all outstanding Notes (except Notes replaced pursuant to
Section 2.7) to maturity or redemption, as the case may be;
(ii) the Issuer 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 outstanding Notes (except Notes replaced pursuant to
Section 2.7) to maturity or redemption, as the case may be;
(iii) 91 days pass after the deposit is made and during the
91-day period no Default specified in Section 6.1(7) or (8) with
respect to the Issuer occurs which is continuing at the end of the
period;
(iv) the deposit does not constitute a default under any other
material agreement binding on the Issuer;
(v) the Issuer 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;
(vi) in the case of the legal defeasance option, the Issuer
shall have delivered to the Trustee an Opinion of Counsel stating that
(i) the Issuer 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 Noteholders will not recognize
income, gain or loss for federal income tax purposes as a result of
such deposit and 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 deposit and defeasance had not occurred;
(vii) in the case of the covenant defeasance option, the
Issuer shall have delivered to the Trustee an Opinion of Counsel to the
effect that the Noteholders 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 and in the
same manner and at the same times as would have been the case if such
deposit and covenant defeasance had not occurred; and
(viii) the Issuer delivers to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that all conditions
precedent to the defeasance and discharge of the Notes as contemplated
by this Article VIII have been complied with.
Before or after a deposit, the Issuer may make arrangements
satisfactory to the Trustee for the redemption of Notes at a future date in
accordance with Article III.
SECTION 8.3. Application of Trust Money. The Trustee shall
hold in trust money or U.S. Government Obligations deposited with it pursuant to
this Article VIII. It shall
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apply the deposited money and the money from U.S. Government Obligations either
directly or through the Paying Agent as the Trustee may determine and in
accordance with this Indenture to the payment of principal of and interest on
the Notes.
SECTION 8.4. Repayment to Issuer. The Trustee and the Paying
Agent shall promptly turn over to the Issuer 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 Issuer upon written request any money held
by them for the payment of principal or interest that remains unclaimed for one
year after such principal and interest have become due and payable, and,
thereafter, Noteholders entitled to the money must look to the Issuer for
payment as general creditors.
SECTION 8.5. Indemnity for Government Obligations. The Issuer
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 other than
any such tax, fee or other charge which by law is for the account of the Holders
of the defeased Notes; provided that the Trustee shall be entitled to charge any
such tax, fee or other charge to such Holder's account.
SECTION 8.6. Reinstatement. If the Trustee or Paying Agent is
unable to apply any money or U.S. Government Obligations in accordance with this
Article VIII by reason of any legal proceeding or by reason of any order or
judgment of any court or governmental authority enjoining, restraining or
otherwise prohibiting such application, the Issuer's obligations under this
Indenture and the Notes shall be revived and reinstated as though no deposit had
occurred pursuant to this Article VIII until such time as the Trustee or Paying
Agent is permitted to apply all such money or U.S. Government Obligations in
accordance with this Article VIII; provided, however, that, (a) if the Issuer
has made any payment of interest on or principal of any Notes following the
reinstatement of their obligations, the Issuer shall be subrogated to the rights
of the Holders of such Notes to receive such payment from the money or U.S.
Government Obligations held by the Trustee or Paying Agent and (b) unless
otherwise required by any legal proceeding or any order or judgment of any court
or governmental authority, the Trustee or Paying Agent shall return all such
money and U.S. Government Obligations to the Issuer promptly after receiving a
written request therefor at any time, if such reinstatement of the Issuer's
obligations has occurred and continues to be in effect.
ARTICLE IX
AMENDMENTS
SECTION 9.1. Without Consent of Holders. The Issuer and the
Trustee may amend this Indenture or the Notes without notice to or consent of
any Noteholder:
(i) to cure any ambiguity, omission, defect or
inconsistency;
(ii) to comply with Article V;
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(iii) to provide for uncertificated Notes in addition to or in
place of certificated Notes (provided, however, that the uncertificated
Notes are issued in registered form for purposes of Section 163(f) of
the Code or in a manner such that the uncertificated Notes are as
described in Section 163(f)(2)(B) of the Code);
(iv) to add Guarantees with respect to the Notes;
(v) to secure the Notes;
(vi) to add to the covenants of the Issuer for the benefit of
the Noteholders or to surrender any right or power herein conferred
upon the Issuer;
(vii) to make any change that does not, in the good faith
opinion of the Board of Directors, materially and adversely affect the
rights of any Noteholder; and
(viii) to comply with any requirements of the SEC in
connection with qualifying this Indenture under the TIA.
After an amendment under this Section 9.1 becomes effective,
the Issuer shall mail to Noteholders a notice briefly describing such amendment.
The failure to give such notice to all Noteholders, or any defect therein, shall
not impair or affect the validity of an amendment under this Section 9.1.
SECTION 9.2. With Consent of Holders. The Issuer and the
Trustee may amend this Indenture or the Notes without notice to any Noteholder
but with the written consent of the Holders of at least a majority in principal
amount of the Notes then outstanding (including consents obtained in connection
with a tender offer or exchange for Notes). However, without the consent of each
Noteholder of an outstanding Note affected, an amendment may not:
(i) reduce the amount of Notes whose Holders must consent
to an amendment;
(ii) reduce the rate of or extend the time for payment of
interest on any Note;
(iii) reduce the principal of or extend the Stated Maturity of
any Note;
(iv) reduce the premium payable upon the redemption of any
Note or change the time at which any Note may be redeemed in accordance
with Article III;
(v) make any Note payable in money other than that stated in
the Note;
(vi) impair the right of any Holder to receive payment of
principal of and interest on such Holder's Notes 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 Notes; or
(vii) make any change in this second sentence of Section 9.2.
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It shall not be necessary for the consent of the Holders under
this Section 9.2 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 9.2 becomes effective,
the Issuer shall mail to Noteholders a notice briefly describing such amendment.
The failure to give such notice to all Noteholders, or any defect therein, shall
not impair or affect the validity of an amendment under this Section 9.2.
SECTION 9.3. Compliance with Trust Indenture Act. Every
amendment to this Indenture or the Notes shall comply with the TIA as then in
effect.
SECTION 9.4. Revocation and Effect of Consents and Waivers. A
consent to an amendment or a waiver by a Holder of a Note shall bind the Holder
and every subsequent Holder of that Note or portion of the Note that evidences
the same debt as the consenting Holder's Note, even if notation of the consent
or waiver is not made on the Note. After an amendment or waiver becomes
effective, it shall bind every Noteholder.
The Issuer may, but shall not be obligated to, fix a record
date for the purpose of determining the Noteholders 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
Noteholders 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 9.5. Notation on or Exchange of Notes. If an amendment
changes the terms of a Note, the Trustee may require the Holder of the Note to
deliver it to the Trustee. The Trustee may place an appropriate notation on the
Note regarding the changed terms and return it to the Holder. Alternatively, if
the Issuer or the Trustee so determine, the Issuer in exchange for the Note
shall issue and the Trustee shall authenticate a new Note that reflects the
changed terms. Failure to make the appropriate notation or to issue a new Note
shall not affect the validity of such amendment.
SECTION 9.6. Trustee to Sign Amendments. The Trustee shall
sign any amendment authorized pursuant to this Article IX if the amendment does
not materially and 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. 1)
shall be fully protected in relying upon, in addition to the documents required
by Section 10.4, an Officer's Certificate and an Opinion of Counsel stating that
such amendment complies with the provisions of this Article IX.
SECTION 9.7. Payment for Consent. Neither the Issuer nor any
affiliate of the Issuer 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
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amendment of any of the terms or provisions of this Indenture or the Notes
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; provided, however, that Holders
who do not consent, waive or agree to amend this Indenture in the time frame set
forth in such solicitation documents shall not be entitled to any consideration
offered for timely consent, waiver or amendment, even if the consent, waiver or
amendment is agreed to by sufficient Holders to approve such consent, waiver or
amendment to this Indenture.
ARTICLE X
MISCELLANEOUS
SECTION 10.1. 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 provision required by
the TIA shall control.
SECTION 10.2. Notices. Any notice or communication shall be in
writing and delivered in person, transmitted by facsimile machine, or mailed by
first-class mail or overnight air courier guaranteeing next day delivery
addressed as follows:
if to the Issuer:
SpectraSite Holdings, Inc.
100 Regency Forest Drive, Suite 400
Cary, North Carolina 27511
Attention: Chief Financial Officer
if to the Trustee:
United States Trust Company of New York
114 West 47th Street, 25th Floor
New York, New York 10036-1532
Attention: Corporate Trust Administration
The Issuer or the Trustee by notice to the others may
designate additional or different addresses for subsequent notices or
communications.
Any notice or communication mailed to a Noteholder shall be
mailed to the Noteholder at the Noteholder'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 Noteholder or
any defect in it shall not affect its sufficiency with respect to other
Noteholders. Except for a notice to the Trustee, which is deemed given only when
received, and except as otherwise provided in this Indenture, if a notice or
communication is mailed in the manner provided above, it is duly given, whether
or not the addressee receives it
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SECTION 10.3. Communication by Holders with Other Holders.
Noteholders may communicate pursuant to TIA ss. 312(b) with other Noteholders
with respect to their rights under this Indenture or the Notes. The Issuer, the
Trustee, the Registrar and anyone else shall have the protection of TIA ss.
312(c).
SECTION 10.4. Certificate and Opinion as to Conditions
Precedent. Upon any request or application by the Issuer to the Trustee to take
or refrain from taking any action under this Indenture, the Issuer shall furnish
to the Trustee:
(i) an Officer's Certificate in form and substance reasonably
satisfactory to the Trustee stating that, in the opinion of the signer,
all conditions precedent, if any, provided for in this Indenture
relating to the proposed action have been complied with; and
(ii) 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 10.5. 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:
(i) a statement that the individual making such
certificate or opinion has read such covenant or condition;
(ii) 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;
(iii) 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
(iv) a statement as to whether or not, in the opinion of such
individual, such covenant or condition has been complied with.
SECTION 10.6. When Notes Disregarded. In determining whether
the Holders of the required principal amount of Notes have concurred in any
direction, waiver or consent, Notes owned by the Issuer or by any Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with the Issuer 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
Notes which a Trust Officer of the Trustee knows are so owned shall be so
disregarded. Also, subject to the foregoing, only Notes outstanding at the time
shall be considered in any such determination.
SECTION 10.7. Rules by Trustee, Paying Agent and Registrar.
The Trustee may make reasonable rules for action by or at a meeting of
Noteholders. The Registrar and the Paying Agent may make reasonable rules for
their functions.
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SECTION 10.8. Legal Holidays. A "Legal Holiday" is a Saturday,
a Sunday or a day on which banking institutions are not required to be open in
the State of New York. If a payment date is a Legal Holiday, payment shall be
made on the next succeeding day that is not a Legal Holiday, and no interest
shall accrue on such payment for the intervening period. If a regular date is a
Legal Holiday, the record date shall not be affected.
SECTION 10.9. Governing Law. THIS INDENTURE AND THE NOTES
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 10.10. No Recourse Against Others. No director,
officer, employee, incorporator or stockholder of the Issuer, as such, shall
have any liability for any obligations of the Issuer under the Notes, this
Indenture or for any claim based on, in respect of, or by reason of such
obligations or their creation. Each Holder of Notes by accepting a Note waives
and releases all such liability. This waiver and release are part of the
consideration for issuance of the Notes.
SECTION 10.11. Successors. All agreements of the Issuer in
this Indenture and the Notes shall bind its successors. All agreements of the
Trustee in this Indenture shall bind its successors.
SECTION 10.12. 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 10.13. Variable Provisions. The Issuer initially
appoints the Trustee as Paying Agent and Registrar and custodian with respect to
any Global Notes.
SECTION 10.14. Qualification of Indenture. The Issuer shall
qualify this Indenture under the TIA in accordance with the terms and conditions
of the Registration Rights Agreement (as defined in the Appendix hereto) and
shall pay all reasonable costs and expenses (including attorneys' fees for the
Issuer, the Trustee and the Holders) incurred in connection therewith,
including, but not limited to, costs and expenses of qualification of this
Indenture and the Notes. The Trustee shall be entitled to receive from the
Issuer any such Officer's Certificates, Opinions of Counsel or other
documentation as it may reasonably request in connection with any such
qualification of this Indenture under the TIA.
SECTION 10.15. 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 provision hereof.
SECTION 10.16. Severability. In case any provision in this
Indenture or in the Notes shall be invalid, illegal or unenforceable, in any
respect for any reason, the validity, legality and enforceability of any such
provision in every other respect and of the remaining provisions shall not in
any way be affected or impaired thereby.
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IN WITNESS WHEREOF, the parties have caused this Indenture to
be duly executed as of the date first written above.
SPECTRASITE HOLDINGS, INC.
By: /s/ David P. Tomick
-----------------------------------
Name: David P. Tomick
Title: Chief Financial Officer
UNITED STATES TRUST COMPANY OF
NEW YORK, as Trustee
By: /s/ Annette L. Kos
-----------------------------------
Name: Annette L. Kos
Title: Assistant Vice President
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RULE 144A/REGULATION S APPENDIX
INSTITUTIONAL BUYERS
PURSUANT TO RULE 144A AND TO CERTAIN PERSONS IN OFFSHORE
TRANSACTIONS IN RELIANCE ON REGULATION S.
PROVISIONS RELATING TO INITIAL NOTES,
PRIVATE EXCHANGE NOTES AND EXCHANGE NOTES
1. Definitions.
1.1. Definitions. For the purposes of this Appendix the
following terms shall have the meanings indicated below:
"Depositary" means The Depository Trust Company, its nominees
and their respective successors and assigns.
"Exchange Notes" means the 12 1/2% Senior Notes due 2010 to be
issued pursuant to this Indenture in connection with a Registered Exchange Offer
pursuant to the Registration Rights Agreement.
"Initial Purchaser" means CIBC World Markets Corp.
"Initial Notes" means the 12 1/2% Senior Notes due 2010,
issued under this Indenture on or about the date hereof
"Notes" means the Initial Notes, the Exchange Notes and the
Private Exchange Notes, treated as a single class.
"Notes Custodian" means the custodian with respect to a Global
Note (as appointed by the Depositary), or any successor person thereto and shall
initially be the Trustee.
"Private Exchange" means the offer by the Issuer, pursuant to
the Registration Rights Agreement, to the Initial Purchaser to issue 'and
deliver to the Initial Purchaser, in exchange for the Initial Notes held by the
Initial Purchaser as part of its initial distribution, a like aggregate
principal amount of Private Exchange Notes.
"Private Exchange Notes" means the 12 1/2% Senior Notes due
2010, if any, to be issued pursuant to this Indenture to the Initial Purchaser
in a Private Exchange.
"Purchase Agreement" means the Purchase Agreement dated
December 15, 2000, between the Issuer and the Initial Purchaser.
"QIB" means a "qualified institutional buyer" as defined in
Rule 144A.
"Registered Exchange Offer" means the offer by the Issuer,
pursuant to the Registration Rights Agreement, to certain Holders of Initial
Notes, to issue and deliver to such
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Holders, in exchange for the Initial Notes,
a like aggregate principal amount of Exchange Notes registered under the
Securities Act.
"Registration Rights Agreement" means the Registration Rights
Agreement dated as of December 20, 2000 between the Issuer and the Initial
Purchaser.
"Regulation S" means Regulation S under the Securities Act.
"Rule 144A" means Rule 144A under the Securities Act.
"Securities Act" means the Securities Act of 1933, as amended.
"Shelf Registration Statement" means the registration
statement issued by the Issuer, in connection with the offer and sale of Initial
Notes or Private Exchange Notes, pursuant to Section 2 of the Registration
Rights Agreement.
"Transfer Restricted Notes" means Notes that bear or are
required to bear the legend set forth in Section 2.3(b) hereof.
1.2. Other Definitions
Defined
Term in Section
"Agent Members"......................... 2.1(b)
"Global Note"........................... 2.1(a)
2 The Notes.
2.1. Form and Dating. The Initial Notes are being offered and
sold by the Issuer pursuant to the Purchase Agreement.
(a) Global Notes. Initial Notes offered and sold to a QIB in
reliance on Rule 144A or in reliance on Regulation S, in each case as provided
in the Purchase Agreement, shall be issued initially in the form of one or more
permanent global Notes in definitive, fully registered form without interest
coupons with the global securities legend and restricted securities legend set
forth in Exhibit I hereto (each, a "Global Note"), which shall be deposited on
behalf of the purchasers of the Initial Notes represented thereby with the
Trustee as custodian for the Depositary (or with such other custodian as the
Depositary may direct), and registered in the name of the Depositary or a
nominee of the Depositary, duly executed by the Issuer and authenticated by the
Trustee as hereinafter provided. The aggregate principal amount of the Global
Notes may from time to time be increased or decreased by adjustments made on the
records of the Trustee and the Depositary or its nominee as hereinafter
provided.
(b) Book-Entry Provisions. This Section 2. 1 (b) shall
apply only to a Global Note deposited with or on behalf of the Depositary.
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The Issuer shall execute and the Trustee shall, in accordance
with this Section 2.1 (b), authenticate and deliver initially one or more Global
Notes that (i) shall be registered in the name of the Depositary for such Global
Note or Global Notes or in the name of the nominee of such Depositary and (ii)
shall be delivered by the Trustee to such Depositary or pursuant to such
Depositary's instructions or held by the Trustee as custodian for the
Depositary.
Members of, or participants in, the Depositary ("Agent
Members") shall have no rights under this Indenture with respect to any Global
Note held on their behalf by the Depositary or by the Trustee as the custodian
of the Depositary or under such Global Note, and the Depositary may be treated
by the Issuer, the Trustee and any agent of the Issuer or the Trustee as the
absolute owner of such Global Note for all purposes whatsoever. Notwithstanding
the foregoing, nothing herein shall prevent the Issuer, the Trustee or any agent
of the Issuer or the Trustee from giving effect to any written certification,
proxy or other authorization furnished by the Depositary or impair, as between
the Depositary and its Agent Members, the operation of customary practices of
such Depositary governing the exercise of the rights of a holder of a beneficial
interest in any Global Note.
(c) Certificated Notes. Except as provided in Section 2.1 or
Section 2.3 or 2.4, owners of beneficial interests in Global Notes will not be
entitled to receive physical delivery of certificated Notes.
2.2. Authentication. The Trustee shall authenticate and
deliver: (1) Initial Notes for original issue in an aggregate principal amount
of U.S. $200,000,000 and (2) Exchange Notes or Private Exchange Notes for issue
only in a Registered Exchange Offer or a Private Exchange, respectively,
pursuant to the Registration Rights Agreement, for a like principal amount of
Initial Notes, in each case upon a written order of the Issuer signed by two
Officers or by an Officer and either an Assistant Treasurer or an Assistant
Secretary of the Issuer. Such order shall specify the amount of the Notes to be
authenticated and the date on which the original issue of Notes is to be
authenticated and whether the Notes are to be Initial Notes, Exchange Notes or
Private Exchange Notes. The aggregate principal amount of Notes outstanding at
any time may not exceed U.S. $200,000,000 except as provided in Section 2.7 of
this Indenture.
2.3. Transfer and Exchange.
(a) Transfer and Exchange of Global Notes. (i) The transfer
and exchange of Global Notes or beneficial interests therein shall be effected
through the Depositary, in accordance with this Indenture (including applicable
restrictions on transfer set forth herein, if any) and the procedures of the
Depositary therefor. A transferor of a beneficial interest in a Global Note
shall deliver to the Registrar a written order given in accordance with the
Depositary's procedures containing information regarding the participant account
of the Depositary to be credited with a beneficial interest in the Global Note.
The Registrar shall, in accordance with such instructions instruct the
Depositary to credit to the account of the Person specified in such instructions
a beneficial interest in the Global Note and to debit the account of the Person
making the transfer of the beneficial interest in the Global Note being
transferred.
(ii) Notwithstanding any other provisions of this Appendix
(other than the provisions set forth in Section 2.4), a Global Note may not be
transferred as a whole except
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by the Depositary to a nominee of the Depositary or by a nominee of the
Depositary to the Depositary of another nominee of the Depositary or by the
Depositary or any such nominee to a successor Depositary or a nominee of such
successor Depositary.
(iii) In the event that a Global Note is exchanged for Notes
in definitive registered form pursuant to Section 2.4 of this Appendix or
Section 2.9 of this Indenture prior to the consummation of a Registered Exchange
Offer or the effectiveness of a Shelf Registration Statement with respect to
such Notes, such Notes may be exchanged only in accordance with such procedures
as are substantially consistent with the provisions of this Section 2.3
(including the certification requirements set forth on the reverse of the
Initial Notes intended to ensure that such transfers comply with Rule 144A or
Regulation S, as the case may be) and such other procedures as may from time to
time be adopted by the Issuer.
(b) Legend. (i) Except as permitted by the following
paragraphs (ii), (iii) and (iv), each Note certificate evidencing the Global
Notes (and all Notes issued in exchange therefor or in substitution thereof)
shall bear a legend in substantially the following form:
"THIS NOTE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY, MAY
NOT BE OFFERED OR SOLD WITHIN THE UNITED STATES OR TO, OR FOR THE
ACCOUNT OR BENEFIT OF, U.S. PERSONS, EXCEPT AS SET FORTH IN THE
FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF, THE HOLDER (1)
REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED
IN RULE 144A UNDER THE SECURITIES ACT), OR (B) IT IS AN "INSTITUTIONAL
ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(A)(1), (2), (3) OR (7) OR
REGULATION D UNDER THE SECURITIES ACT) (AN "INSTITUTIONAL ACCREDITED
INVESTOR") OR (C) IT IS NOT A U.S. PERSON AND IS ACQUIRING THIS NOTE IN
AN OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE
SECURITIES ACT, (2) AGREES THAT IT WILL NOT RESELL OR OTHERWISE
TRANSFER THIS NOTE EXCEPT (A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF,
(B) TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A
UNDER THE SECURITIES ACT, (C) INSIDE THE UNITED STATES TO AN
INSTITUTIONAL ACCREDITED INVESTOR THAT, PRIOR TO SUCH TRANSFER,
FURNISHES TO THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN
REPRESENTATIONS AND AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER
OF THIS NOTE (THE FORM OF WHICH LETTER CAN BE OBTAINED FROM THE
TRUSTEE) AND, IF SUCH TRANSFER IS IN RESPECT OF AN AGGREGATE PRINCIPAL
AMOUNT OF NOTES AT THE TIME OF TRANSFER OF LESS THAN $100,000, AN
OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY THAT SUCH TRANSFER IS IN
COMPLIANCE WITH THE SECURITIES ACT, (D) OUTSIDE THE UNITED STATES IN AN
OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904 OF REGULATION S UNDER
THE SECURITIES ACT OR (E) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT AND (3) AGREES THAT IT WILL DELIVER
TO EACH PERSON TO WHOM THIS NOTE IS TRANSFERRED A NOTICE SUBSTANTIALLY
TO THE EFFECT OF THIS
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LEGEND. IN CONNECTION WITH ANY TRANSFER OF THIS NOTE, THE HOLDER
MUST CHECK THE APPROPRIATE BOX SET FORTH ON THE REVERSE HEREOF
RELATING TO THE MANNER OF SUCH TRANSFER AND SUBMIT THIS CERTIFICATE TO
THE TRUSTEE. IF THE PROPOSED TRANSFEREE IS AN INSTITUTIONAL
ACCREDITED INVESTOR, THE HOLDER MUST, PRIOR TO SUCH TRANSFER,
FURNISH TO THE TRUSTEE AND THE COMPANY SUCH CERTIFICATIONS, LEGAL
OPINIONS OR OTHER INFORMATION AS EITHER OF THEM MAY REASONABLY
REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN
EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT. AS USED HEREIN, THE TERMS "OFFSHORE
TRANSACTION," "UNITED STATES" AND "U.S. PERSON" HAVE THE MEANINGS GIVEN
TO THEM BY REGULATION S UNDER THE SECURITIES ACT. THE INDENTURE
CONTAINS A PROVISION REQUIRING THE TRUSTEE TO REFUSE TO REGISTER ANY
TRANSFER OF THIS NOTE IN VIOLATION OF THE FOREGOING RESTRICTIONS."
(ii) Upon any sale or transfer of a Transfer Restricted Note
(including any Transfer Restricted Note represented by a Global Note) pursuant
to Rule 144 under the Securities Act, in the case of any Transfer Restricted
Note that is represented by a Global Note, the Registrar shall permit the Holder
thereof to exchange such Transfer Restricted Note for a certificated Note that
does not bear the legend set forth above and rescind any restriction on the
transfer of such Transfer Restricted Note, if the Holder certifies in writing to
the Registrar that its request for such exchange was made in reliance on Rule
144 (such certification to be in the form set forth on the reverse of the Note).
(iii) After a transfer of any Initial Securities or Private
Exchange Securities during the period of the effectiveness of and pursuant to a
Shelf Registration Statement with respect to such Initial Securities or Private
Exchange Securities, as the case may be, all requirements pertaining to legends
on such Initial Securities or such Private Exchange Notes will cease to apply,
but the requirements requiring such Initial Notes or such Private Exchange Notes
issued to certain Holders be issued in global form will continue to apply, and
Initial Notes or Private Exchange Notes in global form without legends will be
available to the transferee of the Holder of such Initial Notes or Private
Exchange Notes upon exchange of such transferring Holder's Initial Notes or
Private Exchange Notes or directions to transfer such Holder's interest in the
Global Note, as applicable.
(iv) Upon the consummation of a Registered Exchange Offer with
respect to the Initial Notes pursuant to which Holders of such Initial Notes are
offered Exchange Notes in exchange for their Initial Notes, all requirements
pertaining to such Initial Notes that Initial Notes issued to certain Holders be
issued in global form will continue to apply and Initial Notes in global form
with the restricted securities legend set forth in Exhibit 1 hereto will be
available to Holders of such Initial Notes that do not exchange their Initial
Notes, and Exchange Notes in global form without the restriction securities
legend will be available to Holders that exchange such Initial Notes in such
Registered Exchange Offer.
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(v) Upon the consummation of a Private Exchange with respect
to the Initial Notes pursuant to which Holders of such Initial Notes are offered
Private Exchange Notes in exchange for their Initial Notes, all requirements
pertaining to such Initial Notes that Initial Notes issued to certain Holders be
issued in global form will still apply, and Private Exchange Notes in global
form with the restricted securities legend set forth in Exhibit 1 hereto will be
available to Holders that exchange such Initial Notes in such Private Exchange.
(c) Cancellation or Adjustment of Global Note. At such time as
all beneficial interests in a Global Note have either been exchanged for
certificated Notes, redeemed, repurchased or canceled, such Global Note shall be
returned to the Depositary for cancellation or retained and canceled by the
Trustee. At any time prior to such cancellation, if any beneficial interest in a
Global Note is exchanged for certificated Notes, redeemed, repurchased or
canceled, the principal amount of Notes represented by such Global Note shall be
reduced and an adjustment shall be made on the books and records of the Trustee
(if it is then the Notes Custodian for such Global Note) with respect to such
Global Note, by the Trustee or the Notes Custodian, to reflect such reduction.
(d) Obligations with Respect to Transfers and Exchanges of
Notes. (i) To permit registrations of transfers and exchanges, the Issuer shall
execute and the Trustee shall authenticate certificated Notes and Global Notes
at the Registrar's or any co-registrar's request, subject to terms and
conditions of this Indenture.
(ii) No service charge shall be made for any registration of
transfer or exchange, but the Issuer may require payment of a sum sufficient to
cover any transfer tax, assessments, or similar governmental charge payable in
connection therewith (other than any such transfer taxes, assessments or similar
governmental charge payable upon exchange or transfer pursuant to Sections 3.6,
4.7, 4.9 and Section 9.5 of this Indenture).
(iii) The Registrar or any co-registrar shall not be required
to register the transfer of or exchange of (a) any certificated Note selected
for redemption in whole or in part pursuant to Article III of this Indenture,
except the unredeemed portion of any certificated Note being redeemed in part,
or (b) any Note for a period beginning 15 Business Days before the mailing of a
notice of an offer to repurchase or redeem Notes or 15 Business Days before an
interest payment date.
(iv) Prior to the due presentation for registration of
transfer of any Note, the Issuer, the Trustee, the Paying Agent, the Registrar
or any co-registrar may deem and treat the person in whose name a Note is
registered as the absolute owner of such Note for the purpose of receiving
payment of principal of and interest on such Note and for all other purposes
whatsoever, whether or not such Note is overdue, and none of the Issuer, the
Trustee, the Paying Agent, the Registrar or any co-registrar shall be affected
by notice to the contrary.
(v) All Notes issued on any transfer or exchange pursuant to
the terms of this Indenture shall evidence the same debt and shall be entitled
to the same benefits under this Indenture as the Notes surrendered upon such
transfer or exchange.
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(e) No Obligation of the Trustee or the Issuer. (i) The
Trustee and the Issuer shall have no responsibility or obligation to any
beneficial owner of a Global Note, a member of, or a participant in the
Depositary or other Person with respect to the accuracy of the records of the
Depositary or its nominee or of any participant or member thereof, with respect
to any ownership interest in the Notes or with respect to the delivery to any
participant, member, beneficial owner or other Person (other than the
Depositary) of any notice (including any notice of redemption) or the payment of
any amount, under or with respect to such Notes. All notices and communications
to be given to the Holders and all payments to be made to Holders under the
Notes shall be given or made only to or upon the order of the registered Holders
(which shall be the Depositary or its nominee in the case of a Global Note). The
rights of beneficial owners in any Global Note shall be exercised only through
the Depositary subject to the applicable rules and procedures of the Depositary.
The Trustee and the Issuer may rely and shall be fully protected in relying upon
information furnished by the Depositary with respect to its members,
participants and any beneficial owners.
(ii) The Trustee and the Issuer shall have no obligation or
duty to monitor, determine or inquire as to compliance with any restrictions on
transfer imposed under this Indenture or under applicable law with respect to
any transfer of any interest in any Note (including any transfers between or
among Depositary participants, members or beneficial owners in any Global Note)
other than to require delivery of such certificates and other documentation or
evidence as are expressly required by, and to do so if and when expressly
required by, the terms of this Indenture, and to examine the same to determine
substantial compliance as to form with the express requirements hereof.
2.4. Certificated Notes. (a) A Global Note deposited with the
Depositary or with the Trustee as custodian for the Depositary pursuant to
Section 2.1 shall be transferred to the beneficial owners thereof in the form of
certificated Notes in an aggregate principal amount equal to the principal
amount of such Global Note, in exchange for such Global Note, only if such
transfer complies with Section 2.3 and (i) the Depositary notifies the Issuer
that it is unwilling or unable to continue as Depositary for such Global Note or
if at any time such Depositary ceases to be a "clearing agency" registered under
the Exchange Act and a successor depositary is not appointed by the Issuer
within 90 days of such notice, or (ii) an Event of Default has occurred and is
continuing or (iii) the Issuer, in its sole discretion, notifies the Trustee in
writing that it elects to cause the issuance of certificated Notes under this
Indenture.
(b) Any Global Note that is transferable to the beneficial
owners thereof pursuant to this Section shall be surrendered by the Depositary
to the Trustee, to be so transferred, in whole or from time to time in part,
without charge, and the Trustee shall authenticate and deliver, upon such
transfer of each portion of such Global Note, an equal aggregate principal
amount of certificated Initial Notes of authorized denominations. Any portion of
a Global Note transferred pursuant to this Section shall be executed,
authenticated and delivered only in denominations of $1,000 any integral
multiple thereof and registered in such names as the Depositary shall direct.
Any certificated Initial Note delivered in exchange for an interest in the
Global Note shall, except as otherwise provided by Section 2.3(d), bear the
restricted securities legend set forth in Exhibit 1 hereto.
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(c) Subject to the provisions of Section 2.4(b), the
registered Holder of a Global Note may grant proxies and otherwise authorize any
Person, including Agent Members and Persons that may hold interests through
Agent Members, to take any action which a Holder is entitled to take under this
Indenture or the Notes.
(d) In the event of the occurrence of any of the events
specified in Section 2.4(a), the Issuer will promptly make available to the
Trustee a reasonable supply of certificated Notes in definitive, fully
registered form without interest coupons.
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EXHIBIT 1
TO RULE 144A/REGULATION S
APPENDIX
[FORM OF FACE OF INITIAL NOTE]
[Global Notes Legend]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"),
NEW YORK, NEW YORK, TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF
CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC (AND ANY PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS
THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN
WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH
SUCCESSOR'S NOMINEES, AND TRANSFERS OF PORTIONS OF THIS GLOBAL NOTE SHALL BE
LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE
INDENTURE REFERRED TO ON THE REVERSE HEREOF.
[Restricted Securities Legend]
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY, MAY NOT BE
OFFERED OR SOLD WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT
OF, U.S. PERSONS, EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY ITS
ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT (A) IT IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT), OR (B)
IT IS AN "INSTITUTIONAL ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(A)(1), (2),
(3) OR (7) OR REGULATION D UNDER THE SECURITIES ACT) (AN "INSTITUTIONAL
ACCREDITED INVESTOR") OR (C) IT IS NOT A U.S. PERSON AND IS ACQUIRING THIS NOTE
IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE SECURITIES
ACT, (2) AGREES THAT IT WILL NOT RESELL OR OTHERWISE TRANSFER THIS NOTE EXCEPT
(A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF, (B) TO A QUALIFIED INSTITUTIONAL
BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (C) INSIDE THE
UNITED STATES TO AN INSTITUTIONAL ACCREDITED INVESTOR THAT, PRIOR TO SUCH
TRANSFER,
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FURNISHES TO THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND
AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER OF THIS NOTE (THE FORM OF
WHICH LETTER CAN BE OBTAINED FROM THE TRUSTEE) AND, IF SUCH TRANSFER IS IN
RESPECT OF AN AGGREGATE PRINCIPAL AMOUNT OF NOTES AT THE TIME OF TRANSFER OF
LESS THAN $100,000, AN OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY THAT SUCH
TRANSFER IS IN COMPLIANCE WITH THE SECURITIES ACT, (D) OUTSIDE THE UNITED STATES
IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904 OF REGULATION S UNDER THE
SECURITIES ACT OR (E) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT AND (3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS
NOTE IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN
CONNECTION WITH ANY TRANSFER OF THIS NOTE, THE HOLDER MUST CHECK THE APPROPRIATE
BOX SET FORTH ON THE REVERSE HEREOF RELATING TO THE MANNER OF SUCH TRANSFER AND
SUBMIT THIS CERTIFICATE TO THE TRUSTEE. IF THE PROPOSED TRANSFEREE IS AN
INSTITUTIONAL ACCREDITED INVESTOR, THE HOLDER MUST, PRIOR TO SUCH TRANSFER,
FURNISH TO THE TRUSTEE AND THE COMPANY SUCH CERTIFICATIONS, LEGAL OPINIONS OR
OTHER INFORMATION AS EITHER OF THEM MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH
TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT
SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. AS USED HEREIN,
THE TERMS "OFFSHORE TRANSACTION," "UNITED STATES" AND "U.S. PERSON" HAVE THE
MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT. THE INDENTURE
CONTAINS A PROVISION REQUIRING THE TRUSTEE TO REFUSE TO REGISTER ANY TRANSFER OF
THIS NOTE IN VIOLATION OF THE FOREGOING RESTRICTIONS.
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SPECTRASITE HOLDINGS, INC.
No. 1 Principal Amount $100,000,000
CUSIP NO. 84760TAM2
12 1/2% Senior Note due 2010
SpectraSite Holdings, Inc., a Delaware corporation, promises
to pay to __________, or registered assigns, the principal sum of ONE HUNDRED
MILLION Dollars on November 15, 2010.
Interest Payment Dates: May 15 and November 15.
Record Dates: May 1 and November 1.
Additional provisions of this Note are set forth on the other
side of this Note.
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Dated: SPECTRASITE HOLDINGS, INC.
By:
---------------------------
By:
---------------------------
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
This is one of the Notes referred to in the Indenture.
UNITED STATES TRUST COMPANY OF NEW YORK
as Trustee
By:
----------------------------
Authorized Signatory
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SPECTRASITE HOLDINGS, INC.
No. 2 Principal Amount $99,900,000
CUSIP NO. 84760TAM2
12 1/2% Senior Note due 2010
SpectraSite Holdings, Inc., a Delaware corporation, promises
to pay to __________, or registered assigns, the principal sum of NINETY NINE
MILLION NINE HUNDRED THOUSAND Dollars on November 15, 2010.
Interest Payment Dates: May 15 and November 15.
Record Dates: May 1 and November 1.
Additional provisions of this Note are set forth on the other
side of this Note.
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Dated: SPECTRASITE HOLDINGS, INC.
By:
--------------------------
By:
--------------------------
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
This is one of the Notes referred to in the Indenture.
UNITED STATES TRUST COMPANY OF NEW YORK
as Trustee
By:
-------------------------
Authorized Signatory
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SPECTRASITE HOLDINGS, INC.
No. 3 Principal Amount $100,000
CUSIP NO. U84561AE6
12 1/2% Senior Note due 2010
SpectraSite Holdings, Inc., a Delaware corporation, promises
to pay to __________, or registered assigns, the principal sum of ONE HUNDRED
THOUSAND Dollars on November 15, 2010.
Interest Payment Dates: May 15 and November 15.
Record Dates: May 1 and November 1.
Additional provisions of this Note are set forth on the other
side of this Note.
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Dated: SPECTRASITE HOLDINGS, INC.
By:
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By:
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TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
This is one of the Notes referred to in the Indenture.
UNITED STATES TRUST COMPANY OF NEW YORK
as Trustee
By:
-------------------------------
Authorized Signatory
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[FORM OF REVERSE SIDE OF INITIAL NOTE]
(Reverse of Note)
12 1/2% Senior Note due 2010
1. Interest
SpectraSite Holdings, Inc., a Delaware corporation (such
corporation, and its successors and assigns under the Indenture hereinafter
referred to, being herein called the "Issuer"), promises to pay interest on the
principal amount of this Note at the rate per annum shown above; provided,
however, that if a Registration Default (as defined in the Registration Rights
Agreement) occurs, additional cash interest will accrue on this Note at a rate
of 0.50% per annum from and including the date on which any such Registration
Default shall occur to but excluding the date on which all Registration Defaults
have been cured, calculated on the principal amount of this Note as of the date
on which such interest is payable; provided, however, that in no event shall the
aggregate amount of such additional interest exceed 0.50% per annum. Such
interest is payable in addition to any other interest payable from time to time
with respect to this Note. The Trustee will not be deemed to have notice of a
Registration Default until it shall have received actual notice of such
Registration Default.
The Notes will accrete interest at a rate of 12 1/2% per annum
from the Issue Date, payable semi-annually commencing May 15, 2001, to Holders
of record at the close of business on the May 1 or November 1 immediately
preceding the interest payment date of May 15 and November 15 of each year. The
Issuer shall pay interest on overdue principal at 1% per annum in excess of the
rate borne by the Notes to the extent lawful. Interest will be computed on the
basis of a 360-day year of twelve 30-day months.
2. Method of Payment
By at least 11:00 a.m. (New York City time) on the date on
which any principal of or interest on any Note is due and payable, the Issuer
shall irrevocably deposit with the Trustee or the Paying Agent money sufficient
to pay such principal and/or interest. The Issuer will pay interest (except
defaulted interest) to the Persons who are registered Holders of Notes at the
close of business on the May 1 or November 1 next preceding the interest payment
date even if Notes are cancelled, repurchased or redeemed after the record date
and on or before the interest payment date. Holders must surrender Notes to a
Paying Agent to collect principal payments. The Issuer will pay principal and
interest in money of the United States that at the time of payment is legal
tender for payment of public and private debts. However, the Issuer may pay
principal and interest by check payable in such money. It may mail an interest
check to a Holder's registered address.
3. Paying Agent and Registrar
Initially, United States Trust Company of New York, a national
banking association (the "Trustee"), will act as Paying Agent and Registrar. The
Issuer may appoint and
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change any Paying Agent, Registrar or co-registrar without notice to any
Noteholder. The Issuer or any of its domestically incorporated Wholly Owned
Subsidiaries may act as Paying Agent.
4. Indenture
The Issuer issued the Notes under an Indenture dated as of
December 20, 2000 (as it may be amended or supplemented from time to time in
accordance with the terms thereof, the "Indenture"), between the Issuer and the
Trustee. The terms of the Notes include those stated in the Indenture and those
made part of the Indenture by reference to the Trust Indenture Act of 1939, as
amended (15 U.S.C. ss.ss. 77aaa-77bbbb) as in effect on the date of the
Indenture (the "TIA"). Capitalized terms used herein and not defined herein have
the meanings ascribed thereto in the Indenture. The Notes are subject to all
such terms, and Noteholders are referred to the Indenture and the TIA for a
statement of those terms.
The Notes are unsecured senior obligations of the Issuer
limited to $200,000,000 aggregate principal amount (subject to Section 2.7 of
the Indenture), all of which are being offered on the Issue Date.
This Note is one of the Initial Notes referred to in the
Indenture. The Notes include the Initial Notes and any Private Exchange Notes
and Exchange Notes issued in exchange for the Initial Notes pursuant to the
Indenture and the Registration Rights Agreement. The Initial Notes., the Private
Exchange Notes and the Exchange Notes are treated as a single class of
securities under the Indenture. The Indenture imposes certain limitations on the
Incurrence of Indebtedness by the Issuer and its Restricted Subsidiaries, the
payment of dividends and other distributions on the Capital Stock of the Issuer
and its Restricted Subsidiaries, the purchase or redemption of Capital Stock of
the Issuer and Capital Stock of such Restricted Subsidiaries, certain purchases
or redemptions of Subordinated Obligations, the sale or transfer of assets and
Capital Stock of Restricted Subsidiaries, the issuance or sale of Capital Stock
of Restricted Subsidiaries, the investments of the Issuer and its Subsidiaries
and transactions with Affiliates. In addition, the Indenture limits the ability
of the Issuer and its Restricted Subsidiaries to restrict distributions and
dividends from Restricted Subsidiaries.
5. Redemption
Except as set forth in the following paragraph, the Notes will
not be redeemable at the option of the Issuer prior to November 15, 2005.
Thereafter, the Notes will be redeemable, at the Issuer's option, in whole or in
part, at any time or from time to time, upon not less than 30 nor more than 60
days' prior notice mailed by first-class mail to each Holder's registered
address, at the following redemption prices (expressed as a percentage of the
principal amount), plus accrued and unpaid interest, if any, on such principal
amount to the redemption date (subject to the right of Holders of record on the
relevant record date to receive interest due on the relevant interest payment
date), if redeemed during the 12-month period commencing on November 15 of the
years set forth below:
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Period Redemption Price
2005................................. 106.250%
2006................................. 104.167%
2007................................. 102.083%
2008 and thereafter.................. 100.000%
In addition, at any time and from time to time prior to
November 15, 2003, the Issuer may redeem in the aggregate up to 35% of the
aggregate principal amount of the Notes with the proceeds of one or more Equity
Offerings, at a redemption price (expressed as a percentage of the principal
amount thereof) of 112.5% plus accrued and unpaid interest, if any, to the
redemption date (subject to the right of Holders of record on the relevant
record date to receive interest due on the relevant interest payment date);
provided, however, that at least 65% of the aggregate principal amount of the
Notes must remain outstanding after each such redemption (excluding Notes held
by the Issuer or any of its Subsidiaries); provided further that such redemption
shall occur within 90 days of the date of closing of such Equity Offering.
6. Notice of Redemption
Notice of redemption will be mailed at least 30 days but not
more than 60 days before the redemption date by first-class mail to each Holder
of Notes to be redeemed at his registered address. Notes in denominations of
principal amount larger than $1,000 may be redeemed in part but only in whole
multiples of $1,000. If money sufficient to pay the redemption price of and
accrued and unpaid interest on all Notes (or portions thereof) to be redeemed on
the redemption date is deposited with the Paying Agent on or before the
redemption date and certain other conditions are satisfied, on and after such
date interest ceases to accrue on such Notes (or such portions thereof) called
for redemption.
7. Put Provisions
Upon a Change of Control, any Holder of Notes will have the
right to cause the Issuer to repurchase all or any part of the Notes of such
Holder at a repurchase price equal to 101% of the principal amount thereof as of
the date of repurchase, plus accrued and unpaid interest, if any, to the date of
repurchase as provided in, and subject to the terms of, the Indenture.
8. Registration Rights
The Issuer is party to a Registration Rights Agreement, dated
as of December 20, 2000, between the Issuer and CIBC World Markets Corp.
pursuant to which it is obligated to pay Additional Interest (as defined
therein) upon the occurrence of certain Registration Defaults (as defined
therein).
9. Denominations; Transfer; Exchange
The Notes are in registered form without coupons in
denominations of principal amount of $1,000 and whole multiples of $1,000. A
Holder may register, transfer or exchange Notes in accordance with the
Indenture. The Registrar may require a Holder, among other things, to furnish
appropriate endorsements or transfer documents and to pay any taxes and fees
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required by law or permitted by the Indenture. The Registrar need not register
the transfer of or exchange (i) any Notes selected for redemption (except, in
the case of a Note to be redeemed in part, the portion of the Note not to be
redeemed) for a period beginning 15 business days before a selection of Notes to
be redeemed and ending on the date of such selection or (ii) any Notes for a
period beginning 15 business days before an interest payment date and ending on
such interest payment date.
10. Persons Deemed Owners
The registered holder of this Note may be treated as the owner
of it for all purposes.
11. Unclaimed Money
If money for the payment of principal or interest remains
unclaimed for one year after the date of payment of principal and interest, the
Trustee or Paying Agent shall pay the money back to the Issuer at its request
unless an abandoned property law designates another Person. After any such
payment, Holders entitled to the money must look only to the Issuer and not to
the Trustee for payment.
12. Defeasance
Subject to certain conditions set forth in the Indenture, the
Issuer at any time may terminate some or all of its obligations under the Notes
and the Indenture if the Issuer deposits with the Trustee money or U.S.
Government Obligations for the payment of principal of and interest on the Notes
to redemption or maturity, as the case may be.
13. Amendment, Waiver
Subject to certain exceptions set forth in the Indenture, (i)
the Indenture or the Notes may be amended with the written consent of the
Holders of at least a majority in principal amount of the outstanding Notes and
(ii) any default or noncompliance with any provision may be waived with the
written consent of the Holders of a majority in principal amount of the
outstanding Notes. Subject to certain exceptions set forth in the Indenture,
without the consent of any Noteholder, the Issuer and the Trustee may amend the
Indenture or the Notes to cure any ambiguity, omission, defect or inconsistency,
or to comply with Article V of the Indenture, or to provide for uncertificated
Notes in addition to or in place of certificated Notes, or to add guarantees
with respect to the Notes or to secure the Notes, or to add additional covenants
of or surrender rights and powers conferred on the Issuer, or to make any change
that does not materially and adversely affect the rights of any Noteholder, or
to comply with any request of the SEC in connection with qualifying the
Indenture under the Act.
14. Defaults and Remedies
Under the Indenture, Events of Default include (i) a default
in any payment of interest on any Note when due, continued for 30 days, (ii) a
default in the payment of principal of any Note when due at its Stated Maturity,
upon optional or mandatory redemption, upon required repurchase, upon
declaration or otherwise, (iii) the failure by the Issuer to comply with its
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obligations under Article V of the Indenture, (iv) the failure by the Issuer to
comply for 30 days after notice with any of its obligations under the covenants
described under Section 4.2, 4.3, 4.4, 4.5, 4.6, 4.7, 4.8, 4.9, 4.10, 4.11 or
4.12 of the Indenture (in each case, other than a failure to purchase Notes),
(v) the failure by the Issuer to comply for 60 days after notice with its other
agreements contained in the Indenture, (vi) the failure by the Issuer or any
Significant Subsidiary of the Issuer 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 $10.0 million or its foreign
currency equivalent, (vii) certain events of bankruptcy, insolvency or
reorganization of the Issuer or any Significant Subsidiary of the Issuer or
(viii) any final judgment or decree for the payment of money in excess of $10.0
million (net of any amounts with respect to which a creditworthy insurance
company has acknowledged full liability (subject to any deductible amounts of
less than $10.0 million required to be paid by the Issuer or the Significant
Subsidiary of the Issuer in accordance with the applicable insurance policy)) is
rendered against the Issuer or any Significant Subsidiary of the Issuer and
either (A) an enforcement proceeding has been commenced by any creditor upon
such judgment or decree or (B) such judgment or decree remains unpaid and
outstanding for a period of 60 days following such judgment and is not
discharged, waived or stayed within 10 days after notice. If an Event of Default
occurs and is continuing, the Trustee or the Holders of at least 25% in
aggregate principal amount of the Notes may declare all the Notes to be due and
payable immediately. Certain events of bankruptcy or insolvency are Events of
Default which will result in the Notes being due and payable immediately upon
the occurrence of such Events of Default.
Noteholders may not enforce the Indenture or the Notes except
as provided in the Indenture. The Trustee may refuse to enforce the Indenture or
the Notes unless it receives reasonable indemnity or security. Subject to
certain limitations, Holders of a majority in principal amount of the Notes may
direct the Trustee in its exercise of any trust or power. The Trustee may
withhold from Noteholders notice of any continuing Default or Event of Default
(except a Default or Event of Default in payment of principal or interest) if it
determines that withholding notice is not opposed to their interest.
15. Trustee Dealings with the Issuer
Subject to certain limitations set forth in the Indenture, the
Trustee under the Indenture, in its individual or any other capacity, may become
the owner or pledgee of Notes and may otherwise deal with and collect
obligations owed to it by the Issuer or its Affiliates and may otherwise deal
with the Issuer or its Affiliates with the same rights it would have if it were
not Trustee.
16. No Recourse Against Others
No director, officer, employee, incorporator or stockholder of
the Issuer, as such, shall have any liability for any obligations of the Issuer
under the Notes, the Indenture or for any claim based on, in respect of, or by
reason of such obligations or their creation. Each Holder of Notes by accepting
a Note waives and releases all such liability. This waiver and release are part
of the consideration for issuance of the Notes.
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17. Authentication
This Note shall not be valid until an authorized signatory of
the Trustee (or an authenticating agent acting on its behalf) manually signs the
certificate of authentication on the other side of this Note.
18. Abbreviations
Customary abbreviations may be used in the name of a
Noteholder or an assignee, such as TEN COM (=tenants in common), TEN ENT
(=tenants by the entirety), JT TEN (=joint tenants with rights of survivorship
and not as tenants in common), CUST (=custodian) and U/G/M/A (=Uniform Gift to
Minors Act).
19. CUSIP Numbers
Pursuant to a recommendation promulgated by the Committee on
Uniform Security Identification Procedures, the Issuer has caused CUSIP numbers
to be printed on the Notes and has directed the Trustee to use CUSIP numbers in
notices of redemption as a convenience to Noteholders. No representation is made
as to the accuracy of such numbers either as printed on the Notes or as
contained in any notice of redemption and reliance may be placed only on the
other identification numbers placed thereon.
20. GOVERNING LAW
THIS NOTE 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.
The Issuer will furnish to any Noteholder upon written request
and without charge to the Noteholder a copy of the Indenture which has in it the
text of this Note in larger type. Requests may be made to: SpectraSite Holdings,
Inc., 100 Regency Forest Drive, Suite 400, Cary, North Carolina 27511,
Attention: Chief Financial Officer.
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ASSIGNMENT FORM
To assign this Note, fill in the form below:
I or we assign and transfer this Note to:
(Print or type assignee's name, address and zip code)
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint
agent to transfer this Note on the books of the Issuer. The agent may substitute
another to act for him.
Date: Your Signature:__________________
Sign exactly as your name appears on the other side
of this Note.
Signature Guarantee:
(Signature must be guaranteed by a participant in a
recognized Signature Guarantee Medallion Program or
other signature guarantor program reasonably
acceptable to the Trustee)
In connection with any transfer or exchange of any of the Notes evidenced by
this certificate occurring prior to the date that is two years after the later
of the date of original issuance of such Notes and the last date, if any, on
which such Notes were owned by the Issuer or any Affiliate of the Issuer, the
undersigned confirms that such Notes are being transferred:
CHECK ONE BOX BELOW:
[ ] (1) to the Issuer; or
[ ] (2) pursuant to an effective registration statement under the
Securities Act of 1933; or
[ ] (3) inside the United States to a "qualified institutional
buyer" (as defined in Rule 144A under the Securities Act of
1933) that purchases for its own account or for the account of
a qualified institutional buyer to whom notice is given that
such transfer is being made in reliance on Rule 144A, in each
case pursuant to and in compliance with Rule 144A under the
Securities Act of 1933; or
[ ] (4) outside the United States in an offshore transaction
within the meaning of Regulation S under the Securities Act in
compliance with Rule 904 under the Securities Act of 1933.
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Unless one of the boxes is checked, the Trustee will refuse to register any of
the Notes evidenced by this certificate in the name of any Person other than the
registered holder thereof; provided, however, that if box (4) is checked, the
Trustee may require, prior to registering any such transfer of the Notes, such
legal opinions, certifications and other information as the Issuer has
reasonably requested to confirm that such transfer is being made pursuant to an
exemption from, or in a transaction not subject to, the registration
requirements of the Securities Act of 1933, as amended, such as the exemption
provided by Rule 144 under such Act.
Date: Your Signature: ___________________
Sign exactly as your name appears on the other side
of this Note.
Signature Guarantee:
(Signature must be guaranteed by a participant in a
recognized Signature Guarantee Medallion Program or
other signature guarantor program reasonably
acceptable to the Trustee)
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TO BE COMPLETED BY PURCHASER IF (3) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing
this Note for its own account or an account with respect to which it exercises
sole investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act of
1933, as amended, and is aware that the sale to it is being made in reliance on
Rule 144A and acknowledges that it has received such information regarding the
Issuer as the undersigned has requested pursuant to Rule 144A or has determined
not to request such information and that it is aware that the transferor is
relying upon the undersigned's foregoing representations in order to claim the
exemption from registration provided by Rule 144A.
Date: Your Signature:_______________
NOTICE: To be executed by an
executive officer
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Issuer
pursuant to Section 4.7 or 4.9 of the Indenture, check the appropriate box:
Section 4.7 [ ]
Section 4.9 [ ]
If you want to elect to have only part of this Note purchased
by the Issuer pursuant to Section 4.7 or 4.9 of the Indenture, state the amount
you elect to have purchased (must be integral multiple of $1,000):
$
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[TO BE ATTACHED TO GLOBAL NOTES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL NOTE
The following increases or decreases in this Global Note have been made:
Date of Exchange Amount of decrease in Amount of increase in Principal Amount Signature of
Principal Amount of Principal Amount of of this Global Note authorized
this Global Note this Global Note following such officer of Trustee or
decrease or increase Notes Custodian
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EXHIBIT A
[FORM OF FACE OF EXCHANGE NOTE
[OR PRIVATE EXCHANGE NOTE]]
1
2
SPECTRASITE HOLDINGS, INC.
No.__ Principal Amount $________________
CUSIP NO.__________
12 1/2% Senior Note Due 2010
SpectraSite Holdings, Inc., a Delaware corporation, promises
to pay to _____________, or registered assigns, the principal sum of
__________________ Dollars on November 15, 2010.
Interest Payment Dates: May 15 and November 15.
Record Dates: May 1 and November 1.
Additional provisions of this Note are set forth on the other
side of this Note.
- --------
1 1[If the Security is to be issued in global form add the Global
Securities Legend from Exhibit 1 to Appendix A and the attachment from
such Exhibit 1 captioned "[TO BE ATTACHED TO GLOBAL SECURITIES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY".]
2 2[If the Security is a Private Exchange Security issued in a Private
Exchange to an Initial Purchaser holding an unsold portion of its
initial allotment, add the Restricted Securities Legend from Exhibit 1
to Appendix A and replace the Assignment Form included in such Exhibit
1.]
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Dated: SPECTRASITE HOLDINGS, INC.
By:
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By:
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TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
This is one of the Notes referred to in the Indenture.
UNITED STATES TRUST COMPANY OF NEW YORK
as Trustee
By: _________________________
Authorized Signatory
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[FORM OF REVERSE SIDE OF EXCHANGE NOTE
[OR PRIVATE EXCHANGE NOTE]]
12 1/2% Senior Note due 2010
1. Interest
SpectraSite Holdings, Inc., a Delaware corporation (such
corporation, and its successors and assigns under the Indenture hereinafter
referred to, being herein called the "Issuer"), promises to pay interest on the
principal amount of this Note at the rate per annum shown above[; provided,
however, that if a Registration Default (as defined in the Registration Rights
Agreement) occurs, additional cash interest will accrue on this Note at a rate
of 0.50% per annum from and including the date on which any such Registration
Default shall occur to but excluding the date on which all Registration Defaults
have been cured, calculated on the principal amount of this Note as of the date
on which such interest is payable; provided, however, that in no event shall the
aggregate amount of such additional interest exceed 0.50% per annum. Such
interest is payable in addition to any other interest payable from time to time
with respect to this Note. The Trustee will not be deemed to have notice of a
Registration Default until it shall have received actual notice of such
Registration Default].
The Notes will accrue interest at a rate of 12 1/2% from the
Issue Date, payable semi-annually commencing May 15, 2001, to Holders of record
at the close of business on the May 1 or November 1 immediately preceding the
interest payment date of May 1 and November 1 of each year. The Issuer shall pay
interest on overdue principal at 1% per annum in excess of the rate borne by the
Notes to the extent lawful. Interest will be computed on the basis of a 360-day
year of twelve 30-day months.
2. Method of Payment
By at least 11:00 a.m. (New York City time) on the date on
which any principal of or interest on any Note is due and payable, the Issuer
shall irrevocably deposit with the Trustee or the Paying Agent money sufficient
to pay such principal and/or interest. The Issuer will pay interest (except
defaulted interest) to the Persons who are registered Holders of Notes at the
close of business on the May 1 or November 1 next preceding the interest payment
date even if Notes are cancelled, repurchased or redeemed after the record date
and on or before the interest payment date. Holders must surrender Notes to a
Paying Agent to collect principal payments. The Issuer will pay principal and
interest in money of the United States that at the time of payment is legal
tender for payment of public and private debts. However, the Issuer may pay
principal and interest by check payable in such money. It may mail an interest
an interest check to a Holder's registered address.
3. Paying Agent and Registrar
Initially, United States Trust Company of New York, a national
banking association (the "Trustee"), will act as Paying Agent and Registrar. The
Issuer may appoint and change any Paying Agent, Registrar or co-registrar
without notice to any Noteholder. The Issuer or any of its domestically
incorporated Wholly Owned Subsidiaries may act as Paying Agent.
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4. Indenture
The Issuer issued the Notes under an Indenture dated as of
December 20, 2000 (as it may be amended or supplemented from time to time in
accordance with the terms thereof, the "Indenture"), between the Issuer and the
Trustee. The terms of the Notes include those stated in the Indenture and those
made part of the Indenture by reference to the Trust Indenture Act of 1939, as
amended (15 U.S.C. ss.ss. 77aaa-77bbbb) as in effect on the date of the
Indenture (the "TIA"). Capitalized terms used herein and not defined herein have
the meanings ascribed thereto in the Indenture. The Notes are subject to all
such terms, and Noteholders are referred to the Indenture and the TIA for a
statement of those terms.
The Notes are unsecured senior obligations of the Issuer
limited to $200,000,000 aggregate principal amount (subject to Section 2.7 of
the Indenture), all of which are being offered on the Issue Date.
This Note is one of the Exchange Notes referred to in the
Indenture. The Notes include the Initial Notes and any Private Exchange Notes
and Exchange Notes issued in exchange for the Initial Notes pursuant to the
Indenture and the Registration Rights Agreement. The Initial Notes, the Private
Exchange Notes and the Exchange Notes are treated as a single class of
securities under the Indenture. The Indenture imposes certain limitations on the
Incurrence of Indebtedness by the Issuer and its Restricted Subsidiaries, the
payment of dividends and other distributions on the Capital Stock of the Issuer
and its Restricted Subsidiaries, the purchase or redemption of Capital Stock of
the Issuer and Capital Stock of such Restricted Subsidiaries, certain purchases
or redemptions of Subordinated Obligations, the sale or transfer of assets and
Capital Stock of Restricted Subsidiaries, the issuance or sale of Capital Stock
of Restricted Subsidiaries, the investments of the Issuer and its Subsidiaries
and transactions with Affiliates. In addition, the Indenture limits the ability
of the Issuer and its Restricted Subsidiaries to restrict distributions and
dividends from Restricted Subsidiaries.
5. Redemption
Except as set forth in the following paragraph, the Notes will
not be redeemable at the option of the Issuer prior to November 15, 2005.
Thereafter, the Notes will be redeemable, at the Issuer's option, in whole or in
part, at any time or from time to time, upon not less than 30 nor more than 60
days' prior notice mailed by first-class mail to each Holder's registered
address, at the following redemption prices (expressed as a percentage of the
principal amount), plus accrued and unpaid interest, if any, on such principal
amount to the redemption date (subject to the right of Holders of record on the
relevant record date to receive interest due on the relevant interest payment
date), if redeemed during the 12-month period commencing on November 15 of the
years set forth below:
Period Redemption Price
------ ----------------
2005............................... 106.250%
2006............................... 104.167%
2007............................... 102.083%
2008 and thereafter................ 100.000%
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In addition, at any time and from time to time prior to
November 15, 2003, the Issuer may redeem in the aggregate up to 35% of the
aggregate principal amount of the Notes with the proceeds of one or more Equity
Offerings, at a redemption price (expressed as a percentage of the principal
amount thereof) of 112.5% plus accrued and unpaid interest, if any, to the
redemption date (subject to the right of Holders of record on the relevant
record date to receive interest due on the relevant interest payment date);
provided, however, that at least 65% of the aggregate principal amount of the
Notes must remain outstanding after each such redemption (excluding Notes held
by the Issuer or any of its Subsidiaries); provided further, that such
redemption shall occur within 90 days of the date of closing of such Equity
Offering.
6. Notice of Redemption
Notice of redemption will be mailed at least 30 days but not
more than 60 days before the redemption date by first-class mail to each Holder
of Notes to be redeemed at his registered address. Notes in denominations of
principal amount larger than $1,000 may be redeemed in part but only in whole
multiples of $1,000. If money sufficient to pay the redemption price of and
accrued and unpaid interest on all Notes (or portions thereof) to be redeemed on
the redemption date is deposited with the Paying Agent on or before the
redemption date and certain other conditions are satisfied, on and after such
date interest ceases to accrue on such Notes (or such portions thereof) called
for redemption.
7. Put Provisions
Upon a Change of Control, any Holder of Notes will have the
right to cause the Issuer to repurchase all or any part of the Notes of such
Holder at a repurchase price equal to 101% of the principal amount thereof as of
the date of repurchase, plus accrued and unpaid interest, if any, to the date of
repurchase as provided in, and subject to the terms of, the Indenture.
8. Denominations, Transfer, Exchange
The Notes are in registered form without coupons in
denominations of principal amount of $1,000 and whole multiples of $1,000. A
Holder may register, transfer or exchange Notes in accordance with the
Indenture. The Registrar may require a Holder, among other things, to furnish
appropriate endorsements or transfer documents and to pay any taxes and fees
required by law or permitted by the Indenture. The Registrar need not register
the transfer of or exchange (i) any Notes selected for redemption (except, in
the case of a Note to be redeemed in part, the portion of the Note not to be
redeemed) for a period beginning 15 business days before a selection of Notes to
be redeemed and ending on the date of such selection or (ii) any Notes for a
period beginning 15 business days before an interest payment date and ending on
such interest payment date.
9. Persons Deemed Owners
The registered holder of this Note may be treated as the owner
of it for all purposes.
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10. Unclaimed Money
If money for the payment of principal or interest remains
unclaimed for one year after the date of payment of principal and interest, the
Trustee or Paying Agent shall pay the money back to the Issuer at its request
unless an abandoned property law designates another Person. After any such
payment, Holders entitled to the money must look only to the Issuer and not to
the Trustee for payment.
11. Defeasance
Subject to certain conditions set forth in the Indenture, the
Issuer at any time may terminate some or all of its obligations under the Notes
and the Indenture if the Issuer deposits with the Trustee money or U.S.
Government Obligations for the payment of principal of and interest on the Notes
to redemption or maturity, as the case may be.
12. Amendment, Waiver
Subject to certain exceptions set forth in the Indenture, (i)
the Indenture or the Notes may be amended with the written consent of the
Holders of at least a majority in principal amount of the outstanding Notes and
(ii) any default or noncompliance with any provision may be waived with the
written consent of the Holders of a majority in principal amount of the
outstanding Notes. Subject to certain exceptions set forth in the Indenture,
without the consent of any Noteholder, the Issuer and the Trustee may amend the
Indenture or the Notes to cure any ambiguity, omission, defect or inconsistency,
or to comply with Article V of the Indenture, or to provide for uncertificated
Notes in addition to or in place of certificated Notes, or to add guarantees
with respect to the Notes or to secure the Notes, or to add additional covenants
of or surrender rights and powers conferred on the Issuer, or to make any change
that does not materially and adversely affect the rights of any Noteholder, or
to comply with any request of the SEC in connection with qualifying the
Indenture under the Act.
13. Defaults and Remedies
Under the Indenture, Events of Default include (i) a default
in any payment of interest on any Note when due, continued for 30 days, (ii) a
default in the payment of principal of any Note when due at its Stated Maturity,
upon optional or mandatory redemption, upon required repurchase, upon
declaration or otherwise, (iii) the failure by the Issuer to comply with its
obligations under Article V of the Indenture, (iv) the failure by the Issuer to
comply for 30 days after notice with any of its obligations under the covenants
described under Section 4.2, 4.3, 4.4, 4.5, 4.6, 4.7, 4.8, 4.9, 4.10, 4.11 or
4.12 of the Indenture (in each case, other than a failure to purchase Notes),
(v) the failure by the Issuer to comply for 60 days after notice with its other
agreements contained in the Indenture, (vi) the failure by the Issuer or any
Significant Subsidiary of the Issuer 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 $10.0 million or its foreign
currency equivalent, (vii) certain events of bankruptcy, insolvency or
reorganization of the Issuer or any Significant Subsidiary of the Issuer or
(viii) any final judgment or decree for the payment of money in excess of $10.0
million (net of any amounts with respect to which a creditworthy
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insurance company has acknowledged full liability (subject to any deductible
amounts of less than $10.0 million required to be paid by the Issuer or the
Significant Subsidiary of the Issuer in accordance with the applicable insurance
policy)) is rendered against the Issuer or any Significant Subsidiary of the
Issuer and either (A) an enforcement proceeding has been commenced by any
creditor upon such judgment or decree or (B) such judgment or decree remains
unpaid and outstanding for a period of 60 days following such judgment and is
not discharged, waived or stayed within 10 days after notice. If an Event of
Default occurs and is continuing, the Trustee or the Holders of at least 25% in
aggregate principal amount of the Notes may declare all the Notes to be due and
payable immediately. Certain events of bankruptcy or insolvency are Events of
Default which will result in the Notes being due and payable immediately upon
the occurrence of such Events of Default.
Noteholders may not enforce the Indenture or the Notes except
as provided in the Indenture. The Trustee may refuse to enforce the Indenture or
the Notes unless it receives reasonable indemnity or security. Subject to
certain limitations, Holders of a majority in principal amount of the Notes may
direct the Trustee in its exercise of any trust or power. The Trustee may
withhold from Noteholders notice of any continuing Default or Event of Default
(except a Default or Event of Default in payment of Principal or interest) if it
determines that withholding notice is not opposed to their interest.
14. Trustee Dealings with the Issuer
Subject to certain limitations set forth in the Indenture, the
Trustee under the Indenture, in its individual or any other capacity, may become
the owner or pledgee of Notes and may otherwise deal with and collect
obligations owed to it by the Issuer or its Affiliates and may otherwise deal
with the Issuer or its Affiliates with the same rights it would have if it were
not Trustee.
15. No Recourse Against Others
No director, officer, employee, incorporator or stockholder of
the Issuer, as such, shall have any liability for any obligations of the Issuer
under the Notes, the Indenture or for any claim based on, in respect of, or by
reason of such obligations or their creation. Each Holder of Notes by accepting
a Note waives and releases all such liability. This waiver and release are part
of the consideration for issuance of the Notes.
16. Authentication
This Note shall not be valid until an authorized signatory of
the Trustee (or an authenticating agent acting on its behalf) manually signs the
certificate of authentication on the other side of this Note.
17. Abbreviations
Customary abbreviations may be used in the name of a
Noteholder or an assignee, such as TEN COM (=tenants in common), TEN ENT
(=tenants by the entirety), JT TEN (=joint tenants with rights of survivorship
and not as tenants in common), CUST (=custodian) and U/G/M/A (=Uniform Gift to
Minors Act).
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18. CUSIP Numbers
Pursuant to a recommendation promulgated by the Committee on
Uniform Security Identification Procedures the Issuer has caused CUSIP numbers
to be printed on the Notes and has directed the Trustee to use CUSIP numbers in
notices of redemption as a convenience to Noteholders. No representation is made
as to the accuracy of such numbers either as printed on the Notes or as
contained in any notice of redemption and reliance may be placed only on the
other identification numbers placed thereon.
19. GOVERNING LAW
THIS NOTE 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.
The Issuer will furnish to any Noteholder upon written request
and without charge to the Noteholder a copy of the Indenture which has in it the
text of this Note in larger type. Requests may be made to: SpectraSite Holdings,
Inc., 100 Regency Forest Drive, Suite 400, Cary, North Carolina 27511,
Attention: Chief Financial Officer.
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ASSIGNMENT FORM
To assign this Note, fill in the form below:
I or we assign and transfer this Note to:
(Print or type assignee's name, address and zip code)
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint
agent to transfer this Note on the books of the Issuer. The agent may substitute
another to act for him.
Date: Your
Signature:____________________
Sign exactly as
your name appears
on the other side
of this Note.
Signature Guarantee: _________________________
(Signature must be guaranteed by a participant in a
recognized Signature Guarantee Medallion Program or
other signature guarantor program reasonably
acceptable to the Trustee)
OPTION-OF-HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Issuer
pursuant to Section 4.7 or 4.9 of the Indenture, check the appropriate box:
Section 4.7 [ ]
Section 4.9 [ ]
If you want to elect to have only part of this Note purchased
by the Issuer pursuant to Section 4.7 or 4.9 of the Indenture, state the amount
you elect to have purchased (must be integral multiple of $1,000):
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