EXHIBIT 4.1
=====================================
PHONETEL TECHNOLOGIES, INC.,
As Issuer,
THE SUBSIDIARY GUARANTORS
named on Schedule I hereto
AND
MARINE MIDLAND BANK,
As Trustee
INDENTURE
Dated as of December 18, 1996
$125,000,000
12% SENIOR NOTES DUE 2006
=====================================
CROSS-REFERENCE TABLE*
Trust Indenture
Act Section Indenture Section
310(a)(1)......................................... 7.10
(a)(2)....................................... 7.10
(a)(3)....................................... N.A.**
(a)(4)....................................... N.A.
(a)(5)....................................... 7.10
(b).......................................... 7.10
(c).......................................... N.A.
311(a)............................................ 7.11
(b).......................................... 7.11
(c).......................................... N.A.
312(a)............................................ 2.05
(b).......................................... 11.03
(c).......................................... 11.03
313(a)............................................ 7.06
(b)(1)....................................... 7.06
(b)(2)....................................... 7.06
(c).......................................... 7.06; 11.02
(d).......................................... 7.06
314(a)............................................ 4.02; 4.03;
............................................. 11.02
(b).......................................... 4.18
(c)(1)....................................... 11.04
(c)(2)....................................... 11.04
(c)(3)....................................... N.A.
(d).......................................... 4.18
(e).......................................... 11.05
(f).......................................... N.A.
315(a)............................................ 7.01
(b).......................................... 7.05
(c).......................................... 7.01
(d).......................................... 7.01
(e).......................................... 6.11
316(a)(last sentence)............................. 2.09
(a)(1)(A).................................... 6.05
(a)(1)(B).................................... 6.04
(a)(2)....................................... N.A.
(b).......................................... 6.04; 6.07
(c).......................................... 2.13
317(a)(1)......................................... 6.08
(a)(2)....................................... 6.09
(b).......................................... 2.04
318(a)............................................ 11.01
- ----------
* This Cross-Reference Table is not part of the Indenture.
** Not applicable.
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS AND INCORPORATION
BY REFERENCE
SECTION 1.01. Definitions........................................... 1
SECTION 1.02. Other Definitions..................................... 17
SECTION 1.03. Incorporation by Reference of TIA .................... 18
SECTION 1.04. Rules of Construction................................. 18
ARTICLE II
THE NOTES
SECTION 2.01. Form and Dating....................................... 18
SECTION 2.02. Execution and Authentication.......................... 19
SECTION 2.03. Registrar; Paying Agent; Depositary................... 20
SECTION 2.04. Paying Agent To Hold Money in Trust................... 20
SECTION 2.05. Holder Lists.......................................... 21
SECTION 2.06. Transfer and Exchange................................. 21
SECTION 2.07. Replacement Notes..................................... 22
SECTION 2.08. Outstanding Notes..................................... 22
SECTION 2.09. Treasury Notes........................................ 23
SECTION 2.10. Temporary Notes....................................... 23
SECTION 2.11. Cancellation.......................................... 23
SECTION 2.12. Defaulted Interest.................................... 24
SECTION 2.13. Record Date........................................... 24
SECTION 2.14. CUSIP Number.......................................... 24
SECTION 2.15. Book-Entry Provisions for Global Notes................ 24
ARTICLE III
REDEMPTION
SECTION 3.01. Redemption Provisions................................. 26
SECTION 3.02. Notice to Trustee..................................... 27
SECTION 3.03. Selection of Notes To Be Redeemed..................... 27
SECTION 3.04. Notice of Redemption.................................. 28
SECTION 3.05. Effect of Notice of Redemption........................ 28
SECTION 3.06. Deposit of Redemption Price........................... 29
SECTION 3.07. Notes Redeemed in Part................................ 29
ARTICLE IV
COVENANTS
SECTION 4.01. Payment of Principal, Premium and Interest............ 29
SECTION 4.02. Provision of Financial Statements..................... 30
SECTION 4.03. Compliance Certificate................................ 31
SECTION 4.04. Stay, Extension and Usury Laws........................ 32
SECTION 4.05. Limitation on Restricted Payments..................... 32
SECTION 4.06. Corporate Existence................................... 34
SECTION 4.07. Limitation on Incurrence of Indebtedness.............. 34
SECTION 4.08. Taxes................................................. 36
SECTION 4.09. Limitation on Dividends and Other Payment
Restrictions Affecting Subsidiaries................ 36
SECTION 4.10. Maintenance of Office or Agency....................... 37
SECTION 4.11. Change of Control..................................... 38
SECTION 4.12. Special Offer upon Failure To Consummate Cherokee
Acquisition........................................ 40
SECTION 4.13. Limitation on Asset Sales............................. 42
SECTION 4.14. Limitation on Issuance and Sale of Preferred
Stock of Subsidiaries.............................. 44
SECTION 4.15. Future Subsidiary Guarantors.......................... 45
SECTION 4.16. Maintenance of Properties............................. 45
SECTION 4.17. Maintenance of Insurance.............................. 45
SECTION 4.18. Deposit of Trust Funds with Trustee
Pending Consummation of Cherokee Acquisition....... 45
SECTION 4.19. Limitation on Transactions with Interested
Persons............................................ 47
SECTION 4.20. Limitation on Lines of Business....................... 48
SECTION 4.21. Limitation on Liens................................... 48
ARTICLE V
SUCCESSORS
SECTION 5.01. Merger, Consolidation and Sale of Assets.............. 49
SECTION 5.02. Surviving Person Substituted.......................... 49
ARTICLE VI
DEFAULTS AND REMEDIES
SECTION 6.01. Events of Default..................................... 50
SECTION 6.02. Acceleration.......................................... 52
SECTION 6.03. Other Remedies........................................ 52
SECTION 6.04. Waiver of Past Defaults............................... 53
SECTION 6.05. Control by Majority of Holders........................ 53
SECTION 6.06. Limitation of Suits by Holders........................ 53
SECTION 6.07. Rights of Holders To Receive Payment.................. 54
SECTION 6.08. Collection Suit by Trustee............................ 54
SECTION 6.09. Trustee May File Proofs of Claim...................... 54
SECTION 6.10. Priorities............................................ 55
SECTION 6.11. Undertaking for Costs................................. 55
ARTICLE VII
TRUSTEE
SECTION 7.01. Duties of Trustee..................................... 56
SECTION 7.02. Rights of Trustee..................................... 57
SECTION 7.03. Individual Rights of Trustee.......................... 58
SECTION 7.04. Trustee's Disclaimer.................................. 58
SECTION 7.05. Notice to Holders of Defaults and Events of Default... 58
SECTION 7.06. Reports by Trustee to Holders......................... 59
SECTION 7.07. Compensation and Indemnity............................ 59
SECTION 7.08. Replacement of Trustee................................ 60
SECTION 7.09. Successor Trustee by Merger, Etc...................... 61
SECTION 7.10. Eligibility; Disqualification......................... 61
SECTION 7.11. Preferential Collection of Claims Against Company..... 61
ARTICLE VIII
DISCHARGE OF INDENTURE
SECTION 8.01. Discharge of Liability on Notes; Defeasance........... 62
SECTION 8.02. Conditions to Defeasance.............................. 63
SECTION 8.03. Application of Trust Money............................ 64
SECTION 8.04. Repayment to Company.................................. 64
SECTION 8.05. Indemnity for U.S. Government Obligations............. 64
SECTION 8.06. Reinstatement......................................... 65
ARTICLE IX
AMENDMENTS
SECTION 9.01. Amendments and Supplements Permitted
Without Consent of Holders......................... 65
SECTION 9.02. Amendments and Supplements Requiring
Consent of Holders ................................ 66
SECTION 9.03. Compliance with TIA................................... 67
SECTION 9.04. Revocation and Effect of Consents..................... 67
SECTION 9.05. Notation on or Exchange of Notes...................... 68
SECTION 9.06. Trustee Protected..................................... 68
ARTICLE X
SUBSIDIARY GUARANTEES
SECTION 10.01. Subsidiary Guarantees................................. 69
SECTION 10.02. Trustee To Include Paying Agents...................... 71
SECTION 10.03. Limits on Subsidiary Guarantees....................... 71
SECTION 10.04. Execution of Subsidiary Guarantee..................... 71
SECTION 10.05. Stay, Extension and Usury Laws........................ 72
SECTION 10.06. Payment............................................... 72
ARTICLE XI
MISCELLANEOUS
SECTION 11.01. Trust Indenture Act Controls.......................... 72
SECTION 11.02. Notices............................................... 73
SECTION 11.03. Communication by Holders with Other Holders........... 74
SECTION 11.04. Certificate and Opinion as to Conditions Precedent.... 74
SECTION 11.05. Statements Required in Certificate or Opinion......... 75
SECTION 11.06. Rules by Trustee and Agents........................... 75
SECTION 11.07. Legal Holidays........................................ 75
SECTION 11.08. No Recourse Against Others............................ 75
SECTION 11.09. Counterparts.......................................... 76
SECTION 11.10. Initial Appointments, Compliance Certificates......... 76
SECTION 11.11. Governing Law......................................... 76
SECTION 11.12. No Adverse Interpretation of Other Agreements......... 76
SECTION 11.13. Successors............................................ 76
SECTION 11.14. Severability.......................................... 76
SECTION 11.15. No Recourse Against Others............................ 77
SECTION 11.16. Table of Contents, Headings, Etc...................... 77
SCHEDULE ISUBSIDIARY GUARANTORS EXISTING ON THE ISSUE DATE
EXHIBIT A FORM OF NOTE
EXHIBIT A-1 FORM OF NOTATION ON NOTE RELATING TO GUARANTEE
EXHIBIT B FORM OF BOOK-ENTRY LEGEND AND
SCHEDULE OF EXCHANGES OF GLOBAL NOTE
THIS INDENTURE, dated as of December 18, 1996, is by and
among (i) PhoneTel Technologies, Inc., an Ohio corporation (the
"Company"), as issuer of the 12% Senior Notes due 2006, (ii) each
Subsidiary of the Company existing on the Issue Date as set forth on
Schedule I hereto and each of the Company's Subsidiaries which becomes a
guarantor of the Notes in compliance with Section 4.15 and executes a
supplemental indenture in which such Subsidiary agrees to be bound by the
terms of this Indenture, as guarantors of the Company's obligations under
this Indenture and the Notes (each a "Subsidiary Guarantor"), and (iii)
Marine Midland Bank, as trustee (the "Trustee").
The Company, each Subsidiary Guarantor and the Trustee
agree as follows for the benefit of each other and for the equal and
ratable benefit of the holders of the Notes:
ARTICLE I
DEFINITIONS AND INCORPORATION
BY REFERENCE
SECTION 1.01. Definitions.
"Acquired Debt" means, with respect to any specified
Person, Indebtedness of any other Person (the "Acquired Person") existing
at the time the Acquired Person merges with or into, or becomes a
Subsidiary of, such specified Person, including Indebtedness incurred in
connection with, or in contemplation of, the Acquired Person merging with
or into, or becoming a Subsidiary of, such specified Person.
"Affiliate" means, with respect to any specified Person,
any other Person directly or indirectly controlling or controlled by or
under direct or indirect common control with such specified Person. For
purposes of this definition, "control" (including, with correlative
meanings, the terms "controlling," "controlled by" and "under common
control with") of any Person means the possession, directly or
indirectly, of the power to direct or cause the direction of the
management or policies of such Person, whether through the ownership of
voting securities, by agreement or otherwise.
"Agent" means any Registrar, Paying Agent, or
co-registrar.
"Asset Acquisition" means (a) an Investment by the Company
or any Subsidiary of the Company in any other Person pursuant to which
such Person shall become a Subsidiary of the Company or shall be merged
with or into the Company or any Subsidiary of the Company, (b) the
acquisition by the Company or any Subsidiary of the Company of the assets
of any Person which constitute all or substantially all of the assets of
such Person or any division or line (whether based on product or
geography) of business of such Person or (c) the acquisition by the
Company or any Subsidiary of the Company of any public pay telephones
from any Person other than the manufacturer (or an Affiliate thereof or
special purpose finance entity related thereto) of such telephones in a
transaction involving consideration having a Fair Market Value equal to
or greater than $250,000.
"Asset Sale" means (i) any sale, lease, conveyance or
other disposition by the Company or any Subsidiary of the Company of any
assets (including by way of a sale-and-leaseback) other than in the
ordinary course of business (provided that the sale, lease, conveyance or
other disposition of all or substantially all of the assets of the
Company shall not be an "Asset Sale" but instead shall be governed by the
provisions of Section 5.01), or (ii) the issuance or sale of Capital
Stock of any Subsidiary of the Company, in each case, whether in a single
transaction or a series of related transactions, to any Person (other
than to the Company or a Subsidiary Guarantor), provided that the term
"Asset Sale" shall not include (i) any simultaneous exchange of public
pay telephones and related location agreements of the Company or any of
its Subsidiaries for public pay telephones and related location
agreements of another Person with equivalent Fair Market Value; provided
that the number of pay telephones so exchanged in any calendar year shall
not exceed 10% of (A) the sum of the number of pay telephones owned by
the Company and its Subsidiaries on January 1 of such year and the number
of pay telephones acquired by the Company and its Subsidiaries since
January 1 of such year less (B) the number of pay telephones sold by the
Company and its Subsidiaries since January 1 of such year, and (ii) any
disposition or dispositions during any twelve-month period of assets or
property having a Fair Market Value of less than $250,000 in the
aggregate.
"Bankruptcy Law" means Title 11, United States Bankruptcy
Code of 1978, as amended, or any similar United States federal or state
law relating to bankruptcy, insolvency, receivership, winding up,
liquidation, reorganization or relief of debtors, or any amendment to,
succession to or change in any such law.
"Board of Directors" means the Company's board of
directors or, except with respect to clause (c) of the definition of a
Change of Control, any authorized committee of such board of directors.
"Business Day" means any day other than a Legal Holiday.
"Capital Lease Obligations" of any Person means the
obligations to pay rent or other amounts under a lease of (or other
Indebtedness arrangements conveying the right to use) real or personal
property of such Person which are required to be classified and accounted
for as a capital lease or liability on the face of a balance sheet of
such Person in accordance with GAAP. The amount of such obligations shall
be the capitalized amount thereof in accordance with GAAP and the stated
maturity thereof shall be the date of the last payment of rent or any
other amount due under such lease prior to the first date upon which such
lease may be terminated by the lessee without payment of a penalty.
"Capital Stock" of any Person means any and all shares,
interests, rights to purchase, warrants, options, participations or other
equivalents of or interests in (however designated) corporate stock or
other equity participations, including partnership interests, whether
general or limited, of such Person, including any Preferred Stock.
"Cash Equivalents" means (i) marketable direct obligations
issued or guaranteed by the United States of America, or any governmental
entity or agency or political subdivision thereof (provided, that the
full faith and credit of the United States of America is pledged in
support thereof) maturing within one year of the date of purchase; (ii)
commercial paper issued by corporations, each of which shall have a
consolidated net worth of at least $500 million, maturing within 180 days
from the date of the original issue thereof, and rated "P-1" or better by
Moody's Investors Service or "A-1" or better by Standard & Poor's or an
equivalent rating or better by any other nationally recognized securities
rating agency; (iii) certificates of deposit issued or acceptances
accepted by or guaranteed by any bank or trust company organized under
the laws of the United States of America or any state thereof or the
District of Columbia, in each case having capital, surplus and undivided
profits totalling more than $500 million, maturing within one year of the
date of purchase; and (iv) money market accounts with a bank or trust
company of a type described in clause (iii).
"Change of Control" means the occurrence of any of the
following events:
(a) any "person" or "group" (as such terms are used in
Sections 13(d) and 14(d) of the Exchange Act), other than the Permitted
Holders, becomes the "beneficial owner" (as defined in Rules 13d-3 and
13d-5 under the Exchange Act, except that a person or group shall be
deemed to have beneficial ownership of all shares of Capital Stock that
such person or group has the right to acquire regardless of when such
right is first exercisable), directly or indirectly, of more than 35% of
the total voting power represented by the outstanding Voting Stock of the
Company;
(b) the Company merges with or into another Person or
sells, assigns, conveys, transfers, leases or otherwise disposes of all
or substantially all of its assets to any Person, or any Person merges
with or into the Company, in any such event pursuant to a transaction in
which the outstanding Voting Stock of the Company is converted into or
exchanged for cash, securities or other property, other than any such
transaction where (x) the outstanding Voting Stock of the Company is
converted into or exchanged for Voting Stock (other than Disqualified
Stock) of the surviving or transferee corporation and (y) immediately
after such transaction no "person" or "group" (as such terms are used in
Sections 13(d) and 14(d) of the Exchange Act), disregarding the Permitted
Holders, is the "beneficial owner" (as defined in Rules 13d-3 and 13d-5
under the Exchange Act, except that a person or group shall be deemed to
have beneficial ownership of all shares of Capital Stock that such person
or group has the right to acquire regardless of when such right is first
exercisable), directly or indirectly, of more than 35% of the total
voting power represented by the outstanding Voting Stock of the surviving
or transferee corporation;
(c) during any consecutive two-year period, individuals
who at the beginning of such period constituted the Board of Directors of
the Company (together with any new directors whose election by the Board
of Directors of the Company or whose nomination for election by the
stockholders of the Company was approved by (x) a vote of at least a
majority of the directors 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 (as described in this clause (x) or
in the following clause (y)) or (y) Permitted Holders that are
"beneficial owners" (as defined in Rules 13d-3 and 13d-5 under the
Exchange Act) of a majority of the total voting power represented by the
outstanding Voting Stock of the Company) cease for any reason to
constitute a majority of the Board of Directors then in office; or
(d) the Company is liquidated or dissolved or adopts a
plan of liquidation.
"Cherokee Acquisition" means the acquisition by the
Company of all of the capital stock of Cherokee Communications Inc.
("Cherokee") pursuant to the Agreement and Plan of Merger dated as of
November 21, 1996, among the Company, Cherokee, PhoneTel CCI, Inc. and
all of the shareholders of Cherokee.
"Commission" means the Securities and Exchange Commission.
"Company" means PhoneTel Technologies, Inc., an Ohio
corporation, unless and until a successor replaces it in accordance with
Article V and thereafter means such successor.
"Concurrent Offering" means the public offering by the
Company of up to 7,762,500 shares of its common stock, $.01 par value, as
contemplated by the related prospectus dated December 13, 1996, including
the sale of any such shares of common stock in connection with the
exercise of any over-allotment options granted to the underwriters of
such public offering.
"Consolidated EBITDA" is defined to mean, for any period,
the sum of the amounts for such period of (i) Consolidated Net Income,
(ii) Consolidated Interest Expense, (iii) income taxes, to the extent
such amount was deducted in calculating Consolidated Net Income (other
than income taxes (either positive or negative) attributable to
extraordinary and non-recurring gains or losses or sales of assets), (iv)
depreciation expense, to the extent such amount was deducted in
calculating Consolidated Net Income, (v) amortization expense, to the
extent such amount was deducted in calculating Consolidated Net Income,
and (vi) all other non-cash items reducing Consolidated Net Income, less
all non-cash items increasing Consolidated Net Income, all as determined
on a consolidated basis for the Company and its Subsidiaries in
conformity with GAAP; provided that, if any Subsidiary of the Company is
not a Wholly-Owned Subsidiary of the Company, Consolidated EBITDA shall
be reduced (to the extent not otherwise reduced in accordance with GAAP)
by an amount equal to (A) the amount of the Consolidated Net Income
attributable to such Subsidiary multiplied by (B) the quotient of (1) the
number of shares of outstanding common stock of such Subsidiary not owned
on the last day of such period by the Company or any of its Subsidiaries
divided by (2) the total number of shares of outstanding common stock of
such Subsidiary on the last day of such period.
"Consolidated Fixed Charge Coverage Ratio" means, on any
determination date (the "Transaction Date"), the ratio of (i)
Consolidated EBITDA for the four fiscal quarters for which financial
information in respect thereof is available immediately prior to such
Transaction Date (the "Reference Period") to (ii) the aggregate
Consolidated Fixed Charges during such Reference Period. In making the
foregoing calculation, (A) pro forma effect shall be given to (1) any
Indebtedness Incurred subsequent to the end of the Reference Period and
prior to the Transaction Date, (2) any Indebtedness Incurred during such
Reference Period to the extent such Indebtedness is outstanding at the
Transaction Date, and (3) any Indebtedness to be Incurred on the
Transaction Date, in each case as if such Indebtedness had been Incurred
on the first day of such Reference Period and after giving pro forma
effect to the application of the proceeds thereof as if such application
had occurred on such first day, (B) Consolidated Interest Expense
attributable to interest on any Indebtedness (whether existing or being
Incurred) computed on a pro forma basis and bearing a floating interest
rate shall be computed as if the rate in effect on the Transaction Date
(taking into account any Interest Rate Agreement applicable to such
Indebtedness if such Interest Rate Agreement has a remaining term in
excess of 12 months) had been the applicable rate for the entire period,
(C) there shall be excluded from Consolidated Fixed Charges any
Consolidated Fixed Charges related to any amount of Indebtedness,
Disqualified Stock, or obligations under leases that were outstanding
during such Reference Period or thereafter but that are not outstanding
or are to be repaid on the Transaction Date, except for Consolidated
Interest Expense accrued (as adjusted pursuant to clause (B) above)
during such Reference Period under a revolving credit or similar
arrangement to the extent of the commitment thereunder (or under any
successor revolving credit or similar arrangement) in effect on the
Transaction Date, (D) pro forma effect shall be given to asset sales and
asset acquisitions (including giving pro forma effect to the application
of proceeds of any asset sales) that occur during such Reference Period
or thereafter and on or prior to the Transaction Date as if they had
occurred and such proceeds had been applied on the first day of such
Reference Period, (E) with respect to any such Reference Period
commencing prior to the Issue Date, the issuance of the Notes shall be
deemed to have taken place on the first day of such Reference Period, and
(F) pro forma effect shall be given to asset sales and asset acquisitions
(including giving pro forma effect to the application of proceeds of any
asset sale) that have been made by any Person that has become a
Subsidiary of the Company or has been merged with or into the Company or
any Subsidiary of the Company during such Reference Period or subsequent
to such period and prior to the Transaction Date and that would have
constituted Asset Sales or Asset Acquisitions had such transactions
occurred when such person was a Subsidiary of the Company as if such
asset dispositions or asset acquisitions were Asset Sales or Asset
Acquisitions that occurred on the first day of such Reference Period;
provided that to the extent that clause (D) or (F) of this sentence
requires that pro forma effect be given to an asset acquisition or asset
disposition, such pro forma calculation shall be based upon the four full
fiscal quarters immediately preceding the Transaction Date of the person,
or division or line of business of the person, or property, that is
acquired or disposed of, for which financial information is available.
"Consolidated Fixed Charges" is defined to mean, for any
period, the sum (without duplication) of (i) Consolidated Interest
Expense for such period, (ii) all but the principal component of rentals
in respect of Capitalized Lease Obligations paid, accrued, or scheduled
to be paid or to be accrued by the Company and its Subsidiaries during
such period, and (iii) cash dividends declared or paid in respect of any
Preferred Stock of the Company and its Subsidiaries during such period
(other than dividends paid or payable to the Company or a Wholly-Owned
Subsidiary of the Company), in each case as determined on a consolidated
basis in accordance with GAAP consistently applied. For purposes of this
definition, the amount of any cash dividends declared or paid will be
deemed to be equal to the amount of such dividends multiplied by a
fraction, the numerator of which is one and the denominator of which is
one minus the maximum statutory combined Federal, state, local and
foreign income tax rate then applicable to the Company and its
Subsidiaries (expressed as a decimal between one and zero) on a
consolidated basis.
"Consolidated Interest Expense" means, with respect to any
period, the interest expense of the Company and its Subsidiaries for such
period, determined on a consolidated basis in accordance with GAAP
consistently applied, including, without limitation, (a) amortization of
debt discount, (b) the net payments, if any, under interest rate
contracts (including amortization of discounts), (c) the interest portion
of any deferred payment obligation and (d) accrued interest.
"Consolidated Net Income" means, with respect to any
period, the net income (or loss) of the Company and its Subsidiaries for
such period, determined on a consolidated basis in accordance with GAAP
consistently applied, adjusted, to the extent included in calculating
such net income (or loss), by excluding, without duplication, (i) all
extraordinary gains and losses (net of fees and expenses relating to the
transaction giving rise thereto), (ii) the portion of net income (or
loss) of the Company and its Subsidiaries allocable to interests in
unconsolidated Persons, except to the extent of the amount of dividends
or distributions actually paid to the Company or its Subsidiaries by such
other Person during such period, (iii) net income (or loss) of any Person
combined with the Company or any of its Subsidiaries on a "pooling of
interests" basis attributable to any period prior to the date of
combination, (iv) net gain but not losses in respect of Asset Sales, or
(v) the net income of any Subsidiary of the Company to the extent that
the declaration of dividends or similar distributions by that Subsidiary
of that income to the Company is not at the time permitted, directly or
indirectly, by operation of the terms of its charter or any agreement,
instrument, judgment, decree, order, statute, rule or governmental
regulation applicable to that Subsidiary or its stockholders.
"Consolidated Net Worth" means, with respect to any Person
on any date, the equity of the common and preferred stockholders of such
Person and its Subsidiaries as of such date, determined on a consolidated
basis in accordance with GAAP consistently applied.
"Corporate Trust Office" shall be at the address of the
Trustee specified in Section 11.02 or such other address as the Trustee
may give notice to the Company.
"Credit Facility" means the Credit Agreement to be entered
into among the Company and one or more lending institutions, as the same
may be amended, modified, renewed, refunded, replaced or refinanced from
time to time, including (i) any related notes, letters of credit,
guarantees, collateral documents, instruments and agreements executed in
connection therewith, and in each case as amended, modified, renewed,
refunded, replaced or refinanced from time to time, and (ii) any notes,
guarantees, collateral documents, instruments and agreements executed in
connection with any such amendment, modification, renewal, refunding,
replacement or refinancing.
"Custodian" means any custodian, receiver, trustee,
assignee, liquidator or similar official under any Bankruptcy Law.
"Default" means any event that is, or after the giving of
notice or passage of time or both would be, an Event of Default.
"Depositary" means, with respect to Notes issued in the
form of one or more Global Notes, DTC or another Person designated as
Depositary by the Company, which Person must be a clearing agency
registered under Section 17A of the Exchange Act.
"Disposition" means, with respect to any Person, any
merger, consolidation or other business combination involving such Person
(whether or not such Person is the Surviving Person) or the sale,
assignment, transfer, lease, conveyance or other disposition of all or
substantially all of such Person's assets.
"Disqualified Stock" means any Capital Stock that, by its
terms (or by the terms of any security into which it is convertible or
for which it is exchangeable), or upon the happening of any event,
matures or is mandatorily redeemable, pursuant to a sinking fund
obligation or otherwise, or is redeemable at the option of the holder
thereof, in whole or in part on or prior to the stated maturity of the
Notes.
"Dollars" and "$" mean lawful money of the United States
of America.
"DTC" means The Depository Trust Company.
"Eligible Pay Telephones" means, unless otherwise defined
in the Credit Facility which definition shall control for purposes of the
Indenture, only those telephones (a) in which the lenders under the
Credit Facility have a first priority security interest, (b) which are
located in the continental United States, (c) which are in full
operation, (d) which, in the opinion of a majority of the lenders under
the Credit Facility, are in good operating condition and are not obsolete
or unmerchantable, and (e) which are subject to a valid Telephone
Placement Agreement and a valid OSP Agreement, provided, however, that a
telephone shall not be deemed to be an Eligible Pay Telephone if a
majority of the lenders under the Credit Facility, in their reasonable
judgment, determine that such telephone should not be included in such
definition regardless of whether such telephone meets the requirements of
clauses (a) through (e).
"Equity Offering" means (i) an underwritten public
offering of Capital Stock (other than Disqualified Stock) of the Company
subsequent to the Issue Date (excluding Capital Stock which may be issued
upon exercise of any over-allotment option exercisable after the Issue
Date and granted in connection with the Concurrent Offering), pursuant to
an effective registration statement filed under the Securities Act, or
(ii) any private placement of Capital Stock (other than Disqualified
Stock) of the Company subsequent to the Issue Date, in either case the
net proceeds of which to the Company (after deducting any underwriting
discounts and commissions) exceed $25 million.
"Exchange Act" means the Securities Exchange Act of 1934,
as amended.
"Fair Market Value" means, with respect to any asset, the
price (after taking into account any liabilities relating to such asset)
which could be negotiated in an arm's length free market transaction, for
cash, between a willing seller and a willing buyer, neither of which is
under pressure or compulsion to complete the transaction; provided that,
except with respect of any Asset Sale which involves an asset or assets
the value of which could reasonably be expected to exceed $250,000, the
Fair Market Value of any such asset or assets shall be determined by the
Board of Directors of the Company, acting in good faith, and shall be
evidenced by resolutions of the Board of Directors of the Company
delivered to the Trustee; and provided, further, that the Fair Market
Value of a location agreement shall be the present value of the revenue
to be received by the Company under such agreement until the expiration
of the term of such agreement, without giving effect to any rights to
renew or extend such agreement, based on the actual amount of revenue,
net of related costs associated with the telephone or telephones covered
by such agreement, received by the Company under such agreement for the
most recent fiscal quarter.
"GAAP" means generally accepted accounting principles set
forth in the opinions and pronouncements of the Accounting Principles
Board of the American Institute of Certified Public Accountants and
statements and pronouncements of the Financial Accounting Standards Board
or in such other statements by such other entity as have been approved by
a significant segment of the accounting profession, which are in effect
on the Issue Date.
"Global Note" means a Note evidencing all or part of the
Notes issued to the Depositary in accordance with Section 2.15 and
bearing the legend described in Exhibit B.
"guarantee" by any Person means any obligation, contingent
or otherwise, of such Person guaranteeing any Indebtedness of any other
Person (the "primary obligor") in any manner, whether directly or
indirectly, and including, without limitation, any obligation of such
Person (i) to purchase or pay (or advance or supply funds for the
purchase or payment of) such Indebtedness or to purchase (or to advance
or supply funds for the purchase of) any security for the payment of such
Indebtedness, (ii) to purchase property, securities or services for the
purpose of assuring the holder of such Indebtedness of the payment of
such Indebtedness, or (iii) to maintain working capital, equity capital
or other financial statement condition or liquidity of the primary
obligor so as to enable the primary obligor to pay such Indebtedness (and
"guaranteed," "guaranteeing" and "guarantor" shall have meanings
correlative to the foregoing); provided, however, that the guarantee by
any Person shall not include endorsements by such Person for collection
or deposit, in either case, in the ordinary course of business.
"Holder" means any person in whose name a Note is
registered.
"Indebtedness" means, with respect to any Person, without
duplication, and whether or not contingent, (i) all indebtedness of such
Person for borrowed money or for the deferred purchase price of property
or services or which is evidenced by a note, bond, debenture or similar
instrument, (ii) all Capital Lease Obligations of such Person, (iii) all
obligations of such Person in respect of letters of credit or bankers'
acceptances issued or created for the account of such Person, (iv) all
Interest Rate Agreement Obligations of such Person, (v) all liabilities
secured by any Lien on any property owned by such Person even if such
Person has not assumed or otherwise become liable for the payment thereof
to the extent of the lesser of (x) the amount of the Obligation so
secured and (y) the Fair Market Value of the property subject to such
Lien, (vi) all obligations to purchase, redeem, retire, or otherwise
acquire for value any Capital Stock of such Person, or any warrants,
rights or options to acquire such Capital Stock, now or hereafter
outstanding, (vii) to the extent not included in (vi), all Disqualified
Stock issued by such Person, valued at the greater of its voluntary or
involuntary maximum fixed repurchase price plus accrued and unpaid
dividends thereon, and (viii) to the extent not otherwise included, any
guarantee by such Person of any other Person's indebtedness or other
obligations described in clauses (i) through (vii) above. "Indebtedness"
of the Company and its Subsidiaries shall not include current trade
payables incurred in the ordinary course of business and payable in
accordance with customary practices, and non-interest bearing installment
obligations and accrued liabilities incurred in the ordinary course of
business which are not more than 90 days past due. For purposes hereof,
the "maximum fixed repurchase price" of any Disqualified Stock which does
not have a fixed repurchase price shall be calculated in accordance with
the terms of such Disqualified Stock as if such Disqualified Stock were
purchased on any date on which Indebtedness shall be required to be
determined pursuant to this Indenture, and if such price is based upon,
or measured by the fair market value of, such Disqualified Stock, such
fair market value is to be determined in good faith by the board of
directors of the issuer of such Disqualified Stock.
"Indenture" means this Indenture as amended or
supplemented from time to time.
"Independent Director" means a director of the Company
other than a director (i) who (apart from being a director of the Company
or any Subsidiary) is an employee or Affiliate of the Company or a
Subsidiary of the Company or has held any such position during the
previous five years, (ii) who is a director, employee or Affiliate of
another party to the transaction in question, or (iii) who has, or who
has been appointed to the Board of Directors by a shareholder who has, a
direct or indirect financial interest in the transaction in question.
"Insolvency or Liquidation Proceeding" means, with respect
to any Person, any liquidation, dissolution or winding up of such Person,
or any bankruptcy, reorganization, insolvency, receivership or similar
proceeding with respect to such Person, whether voluntary or involuntary.
"Interest Rate Agreement Obligations" means, with respect
to any Person, the Obligations of such Person under (i) interest rate
swap agreements, interest rate cap agreements and interest rate collar
agreements, and (ii) other agreements or arrangements designed to protect
such Person against fluctuations in interest rates.
"Investments" means, with respect to any Person, all
investments by such Person in other Persons (including Affiliates of such
Person) in the form of loans, guarantees, advances or capital
contributions (excluding commission, travel, relocation expenses and
similar loans and advances to officers and employees made in the ordinary
course of business), purchases or other acquisitions for consideration of
Indebtedness, Capital Stock or other securities and all other items that
are or would be classified as investments on a balance sheet prepared in
accordance with GAAP. "Investments" shall exclude extensions of trade
credit (including extensions of credit in respect of equipment leases) by
the Company and its Subsidiaries in the ordinary course of business in
accordance with normal trade practices of the Company or such Subsidiary,
as the case may be.
"Issue" means create, issue, assume, guarantee, incur or
otherwise become, directly or indirectly, liable for any Indebtedness or
Capital Stock, as applicable; provided, however, that any Indebtedness or
Capital Stock of a Person existing at the time such Person becomes a
Subsidiary (whether by designation, merger, consolidation, acquisition or
otherwise) shall be deemed to be issued by such Subsidiary at the time it
becomes a Subsidiary. For this definition, the terms "issuing," "issuer,"
"issuance" and "issued" have meanings correlative to the foregoing.
"Issue Date" means the date of original issuance of the
Notes.
"Legal Holiday" means a Saturday, a Sunday or a day on
which banking institutions in the City of New York, or in the city in
which the principal office of the Trustee is located, are not required to
be open.
"Lien" means, with respect to any asset, any mortgage,
lien, pledge, charge, security interest or encumbrance of any kind in
respect of such asset, whether or not filed, recorded or otherwise
perfected under applicable law (including any conditional sale or other
title retention agreement, any lease in the nature thereof, any option or
other agreement to sell or give a security interest in any asset and any
filing of, or agreement to give, any financing statement under the
Uniform Commercial Code (or equivalent statutes) of any jurisdiction).
"Net Proceeds" means, with respect to any Asset Sale by
any Person, the aggregate cash proceeds received by such Person and/or
its Affiliates in respect of such Asset Sale, which amount is equal to
the excess, if any, of (i) the cash received by such Person and/or its
Affiliates (including any cash payments received by way of deferred
payment pursuant to, or monetization of, a note, an equity security or
installment receivable or otherwise, but only as and when received) in
connection with such Asset Sale, over (ii) the sum of (a) the amount of
any Indebtedness that is secured by such asset and which is required to
be repaid by such Person in connection with such Asset Sale, plus (b) all
fees, commissions and other expenses incurred by such Person in
connection with such Asset Sale, plus (c) provision for taxes, including
income taxes, attributable to the Asset Sale or attributable to required
prepayments or repayments of Indebtedness with the proceeds of such Asset
Sale, plus (d) a reasonable reserve for the after-tax cost of any
indemnification payments (fixed or contingent) attributable to seller's
indemnities to purchaser in respect of such Asset Sale undertaken by the
Company or any of its Subsidiaries in connection with such Asset Sale
plus (e) if such Person is a Subsidiary of the Company, any dividends or
distributions payable to holders of minority interests in such Subsidiary
from the proceeds of such Asset Sale.
"Notes" means the 12% Senior Notes due 2006, including the
Subsidiary Guarantees, as amended or supplemented from time to time in
accordance with the terms hereof that are issued pursuant to this
Indenture.
"Notes Custodian" means the Trustee, as custodian with
respect to the Notes in global form, or any successor entity thereto.
"Obligations" means any principal, interest, penalties,
fees, indemnifications, reimbursement obligations, damages and other
liabilities payable under the documentation governing any Indebtedness.
"Officer" means, with respect to any Person, the Chairman,
the President, the Treasurer, any Assistant Treasurer, the Controller,
the Secretary, any Assistant Secretary or any Vice-President of such
Person.
"Officers' Certificate" means a certificate signed by two
Officers of the Company which shall include at least one of the Chairman,
the President or any Vice President and otherwise complying with the
applicable requirements of Sections 11.04 and 11.05.
"Opinion of Counsel" means a written opinion in form and
substance satisfactory to, and from legal counsel acceptable to, the
Trustee (such counsel may be an employee of or counsel to the Company or
the Trustee) and complying with the applicable requirements of Sections
11.04 and 11.05.
"OSP Agreement" means any agreement with an operator
service provider pursuant to which commissions, fees or surcharges are to
be paid to the Company or one of its Subsidiaries on all or a portion of
the long distance traffic relating to any pay telephones owned or leased
by or to the Company or one of its Subsidiaries.
"Other Senior Debt" means Indebtedness of the Company
ranking pari passu in right of payment with the Notes and Indebtedness of
a Subsidiary Guarantor ranking pari passu in right of payment with the
Subsidiary Guarantees, in each case, the terms of which require that Net
Proceeds be used to permanently reduce (and thereby also reduce
commitments relating to) such Indebtedness.
"Other Senior Debt Pro Rata Share" means a fraction, (i)
the numerator of which is the aggregate principal amount of Other Senior
Debt outstanding on the date Net Proceeds are received and (ii) the
denominator of which is the sum of (x) the aggregate principal amount of
Notes outstanding on such date and (y) the aggregate principal amount of
any Other Senior Debt outstanding on such date.
"Pari Passu Indebtedness" means any Indebtedness of the
Company or a Subsidiary Guarantor which ranks pari passu in right of
payment with the Notes or the Subsidiary Guarantee of such Subsidiary
Guarantor, as the case may be (whether or not such Indebtedness is
secured by any Lien).
"Permitted Holders" means (i) Peter G. Graf; (ii) his
spouse and lineal descendants; (iii) in the event of the incompetence or
death of any of the Persons described in clauses (i) and (ii), such
Person's estate, executor, administrator, committee or other personal
representative; (iv) any trusts created for the benefit of the Persons
described in clause (i) or (ii); (v) each of Internationale Nederlanden
(U.S.) Capital Corporation and Cerberus Partners, L.P.; or (vi) any
Person controlled by any of the Persons described in clause (i), (ii),
(iv) or (v). For purposes of this definition, "control," as used with
respect to any Person, shall mean the possession, directly or indirectly,
of the power to direct or cause the direction of the management and
policies of such Person, whether through ownership of voting securities
or by contract or otherwise.
"Permitted Investments" means (i) any Investment in the
Company or any Subsidiary Guarantor; (ii) any Investments in Cash
Equivalents; (iii) any Investment in a Person (an "Acquired Person") if,
as a result of such Investment, (a) the Acquired Person becomes a
Subsidiary Guarantor, or (b) the Acquired Person either (1) is merged,
consolidated or amalgamated with or into the Company or a Subsidiary
Guarantor and the Company or such Subsidiary Guarantor is the Surviving
Person, or (2) transfers or conveys substantially all of its assets to,
or is liquidated into, the Company or a Subsidiary Guarantor; (iv)
Investments in accounts and notes receivable acquired in the ordinary
course of business; (v) Interest Rate Agreement Obligations permitted
pursuant to Section 4.07(b)(vi); (vi) loans to employees the proceeds of
which are used to pay taxes due in respect of stock grants to such
employees in an amount not to exceed in the aggregate $1 million in each
of calendar year 1997 and 1998 and $750,000 in calendar year 1999; and
(vii) Investments, not to exceed $2.5 million at any time outstanding, in
joint ventures in which Cherokee or any of its Subsidiaries is a party as
of the Issue Date and which relate solely to certain public pay
telephones located in Mexico that are to be acquired in connection with
the Cherokee Acquisition.
"Permitted Liens" means (i) (A) Liens on assets or
property of the Company that secure Indebtedness outstanding under the
Credit Facility pursuant to Section 4.07(b)(i); (B) Liens securing up to
$25 million of additional Indebtedness outstanding under the Credit
Facility incurred pursuant to the Consolidated Fixed Charge Coverage
Ratio in Section 4.07(a); and (C) Liens securing up to $25 million of
additional Indebtedness, if the Consolidated Fixed Charge Coverage Ratio
at the time of such incurrence, after giving effect to such Indebtedness,
is 3.0 to 1.0; (ii) Liens securing Indebtedness of a Person existing at
the time that such Person is merged into or consolidated with the Company
or a Subsidiary of the Company, provided that such Liens were in
existence prior to the contemplation of such merger or consolidation and
do not extend to any assets other than those of such Person; (iii) Liens
on property acquired by the Company or a Subsidiary; provided that such
Liens were in existence prior to the contemplation of such acquisition
and do not extend to any other property; (iv) Liens in favor of the
Company or any Subsidiary of the Company; (v) Liens incurred, or pledges
and deposits in connection with, workers' compensation, unemployment
insurance and other social security benefits, and leases, appeal bonds
and other obligations of like nature incurred by the Company or any
Subsidiary of the Company in the ordinary course of business; (vi) Liens
imposed by law, including, without limitation, mechanics', carriers',
warehousemen's, materialmen's, suppliers' and vendors' Liens, incurred by
the Company or any Subsidiary of the Company in the ordinary course of
business; (vii) Liens for ad valorem, income or property taxes or
assessments and similar charges which either are not delinquent or are
being contested in good faith by appropriate proceedings for which the
Company has set aside on its books reserves to the extent required by
GAAP; (viii) Liens created under this Indenture; (ix) Liens securing
Capital Lease Obligations on property subject to the applicable lease;
(x) Liens securing Interest Rate Agreement Obligations; (xi) Liens
securing Purchase Money Indebtedness, provided that such Liens relate
only to the property or assets acquired and such Liens are created within
90 days of the acquisition of such property or assets; and (xii) Liens
Incurred as a result of the filing of financing statements in connection
with the credit agreement dated as of March 15, 1996, as amended through
November 22, 1996, among the Company, Internationale Nederlanden (U.S.)
Capital Corporation, Cerberus Partners, L.P. and the lenders named
therein, that are subject to an effective termination agreement, provided
that all of such financing statements are terminated within ninety days
of the Issue Date.
"Person" means any individual, corporation, partnership,
joint venture, association, joint-stock company, limited liability
company, trust, unincorporated organization or government or any agency
or political subdivision thereof.
"Physical Notes" has the meaning set forth in Section
2.15.
"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 Capital Stock of any
other class of such Person.
"Prospectus" means the final prospectus relating to the
public offering of the Notes dated December 13, 1996.
"Purchase Money Indebtedness" means Indebtedness of the
Company and its Subsidiaries incurred in connection with the purchase of
property or assets for the business of the Company and its Subsidiaries.
"Restricted Investment" means an Investment other than a
Permitted Investment.
"Restricted Payment" means (i) any dividend or other
distribution declared or paid on any Capital Stock of the Company or any
of its Subsidiaries (other than dividends or distributions payable solely
in Capital Stock (other than Disqualified Stock) of the Company or such
Subsidiary or dividends or distributions payable to the Company or any
Subsidiary Guarantor); (ii) any payment to purchase, redeem or otherwise
acquire or retire for value any Capital Stock of the Company or any
Subsidiary of the Company or other Affiliate of the Company (other than
any Capital Stock owned by the Company or any Subsidiary Guarantor);
(iii) any payment to purchase, redeem, defease or otherwise acquire or
retire for value any Subordinated Indebtedness prior to the maturity
thereof; or (iv) any Restricted Investment.
"Securities Act" means the Securities Act of 1933, as
amended.
"Special Offer Notice Date" means March 18, 1997.
"Subordinated Indebtedness" means any Indebtedness of the
Company or a Subsidiary Guarantor if the instrument creating or
evidencing such Indebtedness or pursuant to which such Indebtedness is
outstanding expressly provides that such Indebtedness is subordinated in
right of payment to the Notes or the Subsidiary Guarantee of such
Subsidiary Guarantor, as the case may be.
"Subsidiary" of any Person means (i) any corporation more
than 50% of the outstanding Voting Stock of which is owned or controlled,
directly or indirectly, by such Person or by one or more other
Subsidiaries of such Person, or by such Person and one or more other
Subsidiaries thereof, or (ii) any limited partnership of which such
Person or any Subsidiary of such Person is a general partner, or (iii)
any other Person (other than a corporation or limited partnership) in
which such Person, or one or more other Subsidiaries of such Person, or
such Person and one or more other Subsidiaries thereof, directly or
indirectly, has more than 50% of the outstanding partnership or similar
interests or has the power, by contract or otherwise, to direct or cause
the direction of the policies, management and affairs thereof.
"Subsidiary Guarantees" means the guarantees of the Notes
issued by the Subsidiary Guarantors.
"Subsidiary Guarantor" means (i) each Subsidiary of the
Company existing on the Issue Date, (ii) each of the Company's
Subsidiaries which becomes a guarantor of the Notes in compliance with
the provisions pursuant to Section 4.17 and (iii) each of the Company's
Subsidiaries executing a supplemental indenture in which such Subsidiary
agrees to be bound by the terms of this Indenture.
"Surviving Person" means, with respect to any Person
involved in or that makes any Disposition, the Person formed by or
surviving such Disposition or the Person to which such Disposition is
made.
"Telephone Placement Agreement" shall mean any agreement
between the Company or one of its Subsidiaries and another person
pursuant to which the Company or such Subsidiary installs one or more
telephones on property or properties owned, leased or operated by such
person and pays to such person a fee or percentage of revenues earned
from such telephone(s), and such other compensation as may be provided
pursuant thereto, in return for such installation right.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C.
ss.ss. 77aaa-77bbbb), as amended by the Trust Indenture Reform Act of
1990, and as in effect on the Issue Date.
"Trustee" means Marine Midland Bank until a successor
replaces it in accordance with the applicable provisions of this
Indenture and thereafter means such successor.
"Trust Officer" means any officer of the Trustee assigned
by the Trustee to administer the Indenture, or in the case of a successor
trustee, an officer assigned to the department, division or group
performing the corporation trust work of such successor and assigned to
administer this Indenture.
"U.S. Government Obligations" means direct obligations of
the United States of America for the payment of which the full faith and
credit of the United States of America is pledged, provided that no U.S.
Government Obligation shall be callable at the Issuer's option prior to
the stated maturity date of the Notes.
"Voting Stock" means, with respect to any Person, Capital
Stock of such Person of the class or classes pursuant to which the
holders thereof have the general voting power under ordinary
circumstances to elect at least a majority of the board of directors,
managers or trustees of such Person (irrespective of whether or not at
the time stock of any other class or classes shall have or might have
voting power by reason of the happening of any contingency).
"Weighted Average Life to Maturity" means, with respect to
any Indebtedness at any date, the number of years obtained by dividing
(i) the sum of the products obtained by multiplying (a) the amount of
each then remaining installment, sinking fund, serial maturity or other
required scheduled payment of principal, including payment at final
maturity, in respect thereof, with (b) the number of years (calculated to
the nearest one-twelfth) that will elapse between such date and the
making of such payment, by (ii) the then outstanding aggregate principal
amount of such Indebtedness.
"Wholly-Owned Subsidiary" means any Subsidiary of which
100% of the outstanding Capital Stock is owned by the Company or another
Wholly-Owned Subsidiary. For purposes of this definition, any director's
qualifying shares or investments by foreign nationals mandated by
applicable law shall be disregarded in determining the ownership of a
Subsidiary.
SECTION 1.02. Other Definitions.
Defined in
Term Section
"Asset Sale Offer"................................. 4.13
"Asset Sale Offer Purchase Date"................... 4.13
"Asset Sale Offer Trigger Date".................... 4.13
"Change of Control Offer".......................... 4.11
"Change of Control Purchase Date".................. 4.11
"Collateral Account"............................... 4.18
"Covenant Defeasance Option"....................... 8.01
"Event of Default"................................. 6.01
"Excess Proceeds".................................. 4.13
"Final Special Offer Purchase Date"................ 4.12
"Incur"............................................ 4.07
"Interested Person"................................ 4.19
"Legal Defeasance Option".......................... 8.01
"Notice of Default"................................ 6.01
"Participants"..................................... 2.15
"Paying Agent"..................................... 2.03
"Payment Restriction".............................. 4.09
"Permitted Indebtedness"........................... 4.07
"Permitted Payments"............................... 4.05
"Purchase Date".................................... 3.08
"Refinancing Indebtedness"......................... 4.07
"Registrar"........................................ 2.03
"Required Filing Dates"............................ 4.02
"Special Offer".................................... 4.12
"Special Offer Price".............................. 4.12
"Special Offer Purchase Date"...................... 4.12
"Trustee Expenses"................................. 6.08
"Trust Funds"...................................... 4.18
SECTION 1.03. Incorporation by Reference of TIA.
Whenever this Indenture refers to a provision of the Trust
Indenture Act of 1939, as amended, the provision is incorporated by
reference in, and made a part of, this Indenture. Any terms incorporated
by reference in this Indenture that are defined by the TIA, defined by
the TIA's reference to another statute or defined by Commission rule
under the TIA have the meanings so assigned to them therein.
SECTION 1.04. Rules of Construction.
Unless the context otherwise requires: (1) a term has the
meaning assigned to it in this Indenture; (2) an accounting term not
otherwise defined herein has the meaning assigned to it under GAAP; (3)
"or" is not exclusive; (4) words in the singular include the plural, and
in the plural include the singular; (5) provisions apply to successive
events and transactions; and (6) unless otherwise specified, any
reference to a Section or Article refers to such Section or Article of
this Indenture.
ARTICLE II
THE NOTES
SECTION 2.01. Form and Dating.
The Notes and the Trustee's certificate of authentication
shall be substantially in the form of Exhibit A, and the notation thereon
relating to the Subsidiary Guarantees shall be substantially in the form
of Exhibit A-1. The Notes may have notations, legends or endorsements
required by law, stock exchange rule or usage. The Company and the
Trustee shall approve the form of the Notes and any notation, legend or
endorsement on them. Each Note shall be dated the date of its issuance
and shall show the date of its authentication.
The terms and provisions contained in the Notes and the
Subsidiary Guarantees shall constitute, and are hereby expressly made, a
part of this Indenture and, to the extent applicable, the Company, the
Subsidiary Guarantors and the Trustee, by their execution and delivery of
this Indenture, expressly agree to such terms and provisions and to be
bound thereby.
SECTION 2.02. Execution and Authentication.
Two Officers of the Company, one of whom must be the
Secretary or an assistant secretary, shall sign each Note for the Company
by manual or facsimile signature. If an Officer whose signature is on a
Note no longer holds that office at the time the Note is authenticated,
the Note shall nevertheless be valid. Each Subsidiary Guarantor shall
execute the Subsidiary Guarantee in the manner set forth in Section
10.04.
A Note shall not be valid until authenticated by the
manual signature of the Trustee, and the Trustee's signature shall be
conclusive evidence that the Note has been authenticated under this
Indenture. The form of Trustee's certificate of authentication to be
borne by the Notes shall be substantially as set forth in Exhibit A. The
Trustee may appoint an authenticating agent acceptable to the Company to
authenticate Notes. Unless limited by the terms of such appointment, an
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. An authenticating agent has the
same rights as an Agent to deal with the Company or any of its
Affiliates.
The Trustee shall authenticate Notes for original issue in
the aggregate principal amount of $125,000,000 upon receipt of (i) a
written order of the Company specifying the amount of Notes to be
authenticated and the date on which the Notes are to be authenticated and
(ii) an Officers' Certificate and an Opinion of Counsel, each complying
with Section 314(c) of the TIA and Sections 11.04 and 11.05. The
aggregate principal amount of Notes outstanding at any time may not
exceed $125,000,000, except as provided in Section 2.07. Upon receipt of
a written order of the Company, the Trustee shall authenticate Notes in
substitution of Notes originally issued to reflect any name change of the
Company.
The Notes shall initially be issued in the form of one or
more permanent Global Notes, substantially in the form set forth in
Exhibit A. Global Notes shall be registered in the name of a nominee of
the Depositary and deposited with the Trustee, at its New York office, in
its capacity as Notes Custodian, duly executed by the Company and
authenticated by the Trustee as hereinafter provided. Each Global Note
shall evidence such of the outstanding Notes as shall be specified
therein and each shall provide that it shall evidence the aggregate
principal amount of outstanding Notes from time to time endorsed thereon,
and that the aggregate principal amount of outstanding Notes represented
thereby may from time to time be reduced or increased, as applicable, to
reflect exchanges, redemptions, and other similar transactions. Any
endorsement of a Global Note to reflect the amount of any increase or
decrease in the amount of outstanding Notes represented thereby shall be
made by the Trustee or the Notes Custodian, at the direction of the
Trustee, in accordance with instructions given by the Holder thereof.
The Notes shall be issuable only in registered form
without coupons in denominations of $1,000 and any integral multiple
thereof.
SECTION 2.03. Registrar; Paying Agent; Depositary.
The Company shall maintain an office or agency (the
"Registrar") where Notes may be presented for registration of transfer or
for exchange and an office or agency (the "Paying Agent") where Notes may
be presented for payment. The Registrar shall keep a register of the
Notes and of their transfer and exchange. The Company may appoint one or
more co-registrars and one or more additional paying agents. The term
"Paying Agent" includes any additional paying agent. The Company may
change the Paying Agent, Registrar or co-registrar without prior notice
to any Holder. The Company shall notify the Trustee and the Trustee shall
notify the Holders of the name and address of any Agent not a party to
this Indenture. The Company shall enter into an appropriate agency
agreement with any Agent not a party to this Indenture, and such
agreement shall incorporate the provisions of the TIA and implement the
provisions of this Indenture that relate to such Agent.
The Company initially appoints the Trustee as Registrar,
Paying Agent and agent for service of notices and demands in connection
with the Notes. If the Company fails to appoint or maintain a Registrar
and/or Paying Agent, the Trustee shall act as such, and shall be entitled
to appropriate compensation in accordance with Section 7.07.
The Company initially appoints DTC to act as Depositary
with respect to any Global Notes and initially appoints the Trustee to
act as Notes Custodian with respect to any Global Notes.
SECTION 2.04. Paying Agent To Hold Money in Trust.
The Company shall require each Paying Agent other than the
Trustee to agree in writing that the Paying Agent will hold in trust for
the benefit of the Holders or the Trustee all money the Paying Agent
holds for the redemption or purchase of the Notes or for the payment of
principal of, or premium, if any, or interest on, the Notes, and will
notify the Trustee of any default by the Company in providing the Paying
Agent with sufficient funds to redeem or purchase Notes or make any
payment on the Notes as and to the extent required to be redeemed,
purchased or paid under the terms of this Indenture. While any such
default continues, the Trustee may require the Paying Agent to pay all
money it holds to the Trustee. The Company at any time may require the
Paying Agent to pay all money it holds to the Trustee. Upon payment over
to the Trustee, the Paying Agent (if other than the Company or any of its
Affiliates) shall have no further liability for the money it delivered to
the Trustee. If the Company or any of its Subsidiaries acts as Paying
Agent, it shall segregate and hold in a separate trust fund for the
Holders' benefit all money it holds as Paying Agent.
SECTION 2.05. Holder Lists.
The Trustee shall preserve in as current a form as is
reasonably practicable the most recent list available to it of the names
and addresses of Holders and shall otherwise comply with Section 312(a)
of the TIA. If the Trustee is not the Registrar, the Company shall
furnish to the Trustee, semiannually at least fifteen Business Days
before each interest payment date and at such other times as the Trustee
may request in writing, within 30 days after receipt by the Company of
any such request, a list in such form and as of such date as the Trustee
may reasonably require that sets forth the names and addresses of, and
the aggregate principal amount of Notes held by, each Holder, and the
Company shall otherwise comply with Section 312(a) of the TIA.
SECTION 2.06. Transfer and Exchange.
Subject to the provisions of Section 2.15, when Notes are
presented to the Registrar or a co-registrar with a request to register a
transfer or to exchange them for an equal principal amount of Notes of
other denominations, the Registrar shall register the transfer or make
the exchange if its requirements for such transaction are met; provided,
however, that any Note presented or surrendered for registration of
transfer or exchange shall be duly endorsed or accompanied by a written
instruction of transfer in form satisfactory to the Registrar and the
Trustee duly executed by the Holder of such Note or by its attorney duly
authorized in writing. To permit registrations of transfers and
exchanges, the Company shall Issue (and the Subsidiary Guarantors shall
execute the Subsidiary Guarantee endorsed thereon), and the Trustee shall
authenticate, Notes at the Registrar's request. The Trustee shall notify
the Company of all such registered transfers and exchanges within five
Business Days of the occurrence of such transfer or exchange.
Neither the Company nor the Registrar shall be required to
issue, register the transfer of or exchange any Note (i) during a period
beginning at the opening of business 15 days before the day of the
mailing of notice of any redemption from the Company and ending at the
close of business on the day the notice of redemption is sent to Holders,
(ii) selected for redemption, in whole or in part, except the unredeemed
portion of any Note being redeemed in part may be transferred or
exchanged, and (iii) during any Change of Control Offer or Special Offer
or Asset Sale Offer if such Note is tendered pursuant to such Change of
Control Offer or Special Offer or Asset Sale Offer and not withdrawn.
No service charge shall be made for any registration of
transfer or exchange (except as otherwise expressly permitted herein),
but the Company may require payment of a sum sufficient to cover any
transfer tax or similar governmental charge payable in connection
therewith (other than any such transfer tax or similar governmental
charge payable upon exchange pursuant to Section 2.10, 3.07 or 9.05,
which the Company shall pay).
Prior to due presentment for registration of transfer of
any Note, the Trustee, any Agent and the Company may deem and treat the
Person in whose name any Note is registered as the absolute owner of such
Note (whether or not such Note shall be overdue and notwithstanding any
notation of ownership or other writing on such Note made by anyone other
than the Company, the Registrar or any co-registrar) for the purpose of
receiving payment of principal of, and premium, if any, and interest on,
such Note and for all other purposes, and notice to the contrary shall
not affect the Trustee, any Agent or the Company.
Any Holder of the Global Note shall, by acceptance of such
Global Note, agree that transfers of beneficial interests in such Global
Note may be effected only through a book-entry system (as described in
Section 2.15) maintained by the Depositary (or its agent), and that
ownership of a beneficial interest in the Global Note shall be required
to be reflected in a book entry.
SECTION 2.07. Replacement Notes.
If any mutilated Note is surrendered to the Trustee, or if
the Company and the Trustee receive evidence to their satisfaction of the
destruction, loss or theft of any Note, the Company shall issue and the
Trustee shall, upon receipt of a written order in the form of an
Officers' Certificate, authenticate a replacement Note if the Trustee's
requirements are met, and each such replacement Note shall be an
additional Obligation of the Company. If the Trustee or the Company
requires, the Holder must supply an indemnity bond that is sufficient in
the judgment of the Trustee and the Company to protect the Company, the
Trustee, any Agent or any authenticating agent from any loss that any of
them may suffer if a Note is replaced. The Company and the Trustee may
charge for their reasonable expenses in replacing a Note.
SECTION 2.08. Outstanding Notes.
The Notes outstanding at any time are all the Notes the
Trustee has authenticated except those it has cancelled, those delivered
to it for cancellation, and those described in this Section 2.08 as not
outstanding. If a Note is replaced pursuant to Section 2.07, it ceases to
be outstanding unless the Trustee receives proof satisfactory to it that
a bona fide purchaser holds the replaced Note. If the entire principal
of, and premium, if any, and accrued interest on, any Note is considered
paid under Section 4.01, it ceases to be outstanding and interest on it
ceases to accrue. Subject to Section 2.09, a Note does not cease to be
outstanding because the Company or any Affiliate of the Company holds
such Note.
SECTION 2.09. Treasury Notes.
In determining whether the Holders of the required
principal amount of Notes have concurred in any direction, waiver or
consent, Notes owned by the Company or any Affiliate of the Company shall
be considered as though they are not outstanding; provided, however, that
for the purpose of determining whether the Trustee shall be protected in
relying on any such direction, waiver or consent, only Notes that the
Trustee knows are so owned shall be so disregarded. Notwithstanding the
foregoing, Notes that the Company or any Affiliate of the Company offers
to purchase or acquires pursuant to an exchange offer, tender offer or
otherwise shall not be deemed to be owned by the Company or any Affiliate
of the Company until legal title to such Notes passes to the Company or
such Affiliate, as the case may be.
SECTION 2.10. Temporary Notes.
Until definitive Notes are ready for delivery, the Company
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 Company considers appropriate for temporary Notes.
Without unreasonable delay, the Company shall prepare and the Trustee,
upon receipt of a written order in the form of an Officers' Certificate,
shall authenticate definitive Notes in exchange for temporary Notes.
Until such exchange, temporary Notes shall be entitled to the same
rights, benefits and privileges as definitive Notes.
SECTION 2.11. Cancellation.
The Company at any time may deliver Notes to the Trustee
for cancellation. The Registrar, any co-registrar, the Paying Agent, the
Company and its Subsidiaries shall forward to the Trustee any Notes
surrendered to them for registration of transfer, exchange, replacement,
payment (including all Notes called for redemption and all Notes accepted
for payment pursuant to an Offer) or cancellation, and the Trustee shall
cancel all such Notes and shall destroy all cancelled Notes (subject to
the record retention requirements of the Exchange Act) and deliver a
certificate of their destruction to the Company unless, by written order
signed by two Officers of the Company, the Company shall direct that
cancelled Notes be returned to it. The Company may not issue new Notes to
replace any Notes that have been cancelled by the Trustee or that have
been delivered to the Trustee for cancellation. If the Company or any
Affiliate of the Company acquires any Notes (other than by redemption
pursuant to Section 3.01 or an Offer pursuant to Section 4.11, 4.12 or
4.13), such acquisition shall not operate as a redemption or satisfaction
of the Indebtedness represented by such Notes unless and until such Notes
are delivered to the Trustee for cancellation.
SECTION 2.12. Defaulted Interest.
If the Company defaults in a payment of interest on the
Notes, it shall pay the defaulted interest in any lawful manner plus, to
the extent lawful, interest payable on the defaulted interest, to Holders
on a subsequent special record date, in each case at the rate provided in
the Notes and Section 4.01. The Company shall, with the Trustee's
consent, fix or cause to be fixed each such special record date and
payment date. At least 15 days before the special record date, the
Company (or, at the request of the Company, the Trustee in the name of,
and at the expense of, the Company) shall mail a notice that states the
special record date, the related payment date and the amount of interest
to be paid.
SECTION 2.13. Record Date
The record date for purposes of determining the identity
of holders of Notes entitled to vote or consent to any action by vote or
consent authorized or permitted under this Indenture shall be determined
as provided for in Section 316(c) of the TIA.
SECTION 2.14. CUSIP Number.
A "CUSIP" number will be printed on the Notes, and the
Trustee shall use the CUSIP number in notices of redemption, purchase or
exchange as a convenience to Holders; provided that any such notice may
state that no representation is made as to the correctness or accuracy of
the CUSIP number printed in the notice or on the Notes and that reliance
may be placed only on the other identification numbers printed on the
Notes. The Company will promptly notify the Trustee of any change in the
CUSIP number.
SECTION 2.15. Book-Entry Provisions for Global Notes.
(a) The Global Notes initially shall (i) be registered in
the name of the Depositary or the nominee of such Depositary, (ii) be
delivered to the Trustee as custodian for such Depositary and (iii) bear
legends as set forth in Exhibit B.
Members of, or participants in, the Depositary
("Participants") shall have no rights under this Indenture with respect
to any Global Note held on their behalf by the Depositary, or the Trustee
as its custodian, or under the Global Note, and the Depositary may be
treated by the Company, the Trustee and any agent of the Company or the
Trustee as the absolute owner of the Global Note for all purposes
whatsoever. Notwithstanding the foregoing, nothing herein shall prevent
the Company, the Trustee or any agent of the Company 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
Participants, the operation of customary practices governing the exercise
of the rights of a Holder of any Note.
(b) Transfers of Global Notes shall be limited to
transfers in whole, but not in part, to the Depositary, its successors or
their respective nominees. Interests of beneficial owners in the Global
Notes may be transferred or exchanged for certificated notes ("Physical
Notes") in accordance with the rules and procedures of the Depositary. In
addition, Physical Notes shall be transferred to all beneficial owners in
exchange for their beneficial interests in Global Notes if (i) the
Depositary notifies the Company that it is unwilling or unable to
continue as Depositary for any Global Note and a successor depositary is
not appointed by the Company within 30 days of such notice or (ii) an
Event of Default has occurred and is continuing and the Registrar has
received a request from the Depositary to issue Physical Notes.
(c) In connection with any transfer or exchange of a
portion of the beneficial interest in any Global Note to beneficial
owners pursuant to paragraph (b), the Registrar shall (if one or more
Physical Notes are to be issued) reflect on its books and records the
date and a decrease in the principal amount of the Global Note in an
amount equal to the principal amount of the beneficial interest in the
Global Note to be transferred or exchanged, and the Company shall execute
(and the Subsidiary Guarantors shall execute the Subsidiary Guarantee
endorsed thereon), and the Trustee, pursuant to instructions set forth in
an Officers' Certificate from the Company, shall authenticate and
deliver, one or more Physical Notes of like tenor and amount.
(d) In connection with the transfer or exchange of Global
Notes as an entirety to beneficial owners pursuant to paragraph (b), the
Global Notes shall be deemed to be surrendered to the Trustee for
cancellation, and the Company shall execute (and the Subsidiary
Guarantors shall execute the Subsidiary Guarantee endorsed thereon), and
the Trustee, pursuant to instructions set forth in an Officers'
Certificate from the Company, shall authenticate and deliver, to each
beneficial owner identified by the Depositary in exchange for its
beneficial interest in the Global Notes, an equal aggregate principal
amount of Physical Notes of authorized denominations.
(e) Upon consummation of any redemption pursuant to
Section 3.01 or any Offer pursuant to Sections 4.11, 4.12 or 4.13, the
Registrar shall reflect on its book and records the date and a decrease
in the principal amount of the Global Note in an amount equal to the
aggregate principal amount being redeemed or purchased by the Company.
The Global Note shall be deemed to be surrendered to the Trustee by the
Notes Custodian and the Company shall execute (and the Subsidiary
Guarantors shall execute the Subsidiary Guarantee endorsed thereon), and
the Trustee, pursuant to instructions set forth in an Officers'
Certificate from the Company, shall authenticate and deliver to the Notes
Custodian, a new Global Note reflecting such reduction in principal
amount outstanding.
(f) The Holder of any Global Note may grant proxies and
otherwise authorize any person, including Participants and persons that
may hold interests through Participants, to take any action which a
Holder is entitled to take under this Indenture or the Notes.
ARTICLE III
REDEMPTION
SECTION 3.01. Redemption Provisions.
The Notes are not redeemable at the Company's option prior
to December 15, 2001. On and after such date, the Notes will be subject
to redemption at the option of the Company, in whole or in part, at the
redemption prices (expressed as percentages of the principal amount of
the Notes) set forth below, plus accrued and unpaid interest to the date
fixed for redemption, if redeemed during the twelve-month period
beginning on December 15 of the years indicated below.
Year Percentage
2001................................. 106.0%
2002................................. 104.0%
2003................................. 102.0%
2004 and thereafter.................. 100.0%
Notwithstanding the foregoing, at any time prior to
December 15, 1999, the Company, at its option, may redeem from time to
time up to 40% of the aggregate principal amount of the Notes originally
issued with the net cash proceeds of one or more Equity Offerings, other
than the Concurrent Offering at a redemption price equal to 112% of the
principal amount thereof, together with accrued and unpaid interest to
the date fixed for redemption; provided, however, that at least $75
million in aggregate principal amount of the Notes remains outstanding
immediately after any such redemption.
SECTION 3.02. Notice to Trustee.
If the Company elects to redeem Notes pursuant to Section
3.01, it shall furnish to the Trustee, at least 30 but not more than 60
days before notice of any redemption is to be mailed to Holders, an
Officers' Certificate stating that the Company is redeeming Notes
pursuant to Section 3.01, the date notice of redemption is to be mailed
to Holders, the redemption date, the aggregate principal amount of Notes
to be redeemed, the redemption price for such Notes, the amount of
accrued and unpaid interest on such Notes as of the redemption date and,
if applicable, the manner in which Notes are to be selected for
redemption, in accordance with Section 3.03, if less than all outstanding
Notes are to be redeemed. If the Trustee is not the Registrar, the
Company shall, concurrently with delivery of its notice to the Trustee of
a redemption, cause the Registrar to deliver to the Trustee a certificate
(upon which the Trustee may rely) setting forth the name of, and the
aggregate principal amount of Notes held by each Holder.
The Company will also provide the Trustee with any
additional information that the Trustee reasonably requests in connection
with any redemption.
SECTION 3.03. Selection of Notes To Be Redeemed.
If less than all outstanding Notes are to be redeemed by
the Company, the Trustee, on behalf of the Company, shall select the
outstanding Notes to be redeemed 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 listed on such an exchange the
Trustee, on behalf of the Company, shall select the outstanding Notes to
be redeemed on a pro rata basis, by lot or by any other method that the
Trustee deems fair and appropriate; provided, that a redemption pursuant
to the provisions relating to Equity Offerings will be on a pro rata
basis. Notes redeemed in part shall only be redeemed in integral
multiples of $1,000. If the Company elects to mail notice of a redemption
to Holders, the Trustee shall at least five days prior to the date notice
of redemption is to be mailed, (i) select, on behalf of the Company, the
Notes to be redeemed from Notes outstanding not previously called for
redemption, and (ii) notify the Company of the names of each Holder of
Notes selected for redemption, the principal amount of Notes held by each
such Holder and the principal amount of such Holder's Notes that are to
be redeemed. The Trustee shall select for redemption Notes or portions of
Notes in principal amounts of $1,000 or integral multiples of $1,000.
Except as provided in the preceding sentence, provisions of this
Indenture that apply to Notes called for redemption also apply to
portions of Notes called for redemption. The Trustee shall notify the
Company promptly of the Notes or portions of Notes to be called for
redemption. The Company shall notify the Trustee of its acceptance for
payment of the Notes selected for redemption.
SECTION 3.04. Notice of Redemption.
(a) At least 30 days but not more than 60 days before any
redemption date, the Company shall mail by first class mail a notice of
redemption to each Holder of Notes that are to be redeemed. With respect
to any redemption of Notes, the notice shall identify the Notes or
portions thereof, if applicable, to be redeemed and shall state: (1) the
redemption date; (2) the redemption price for the Notes and the amount of
unpaid and accrued interest on such Notes as of the date of redemption;
(3) the paragraph of the Notes pursuant to which the Notes called for
redemption are being redeemed; (4) if any Note is being redeemed in part,
the portion of the principal amount of such Note to be redeemed and that,
after the redemption date, upon surrender of such Note, a new Note or
Notes in principal amount equal to the unredeemed portion will be issued;
(5) the name and address of the Paying Agent; (6) that Notes called for
redemption must be surrendered to the Paying Agent to collect the
redemption price for, and any accrued and unpaid interest on, such Notes;
(7) that, unless the Company defaults in making such redemption payment,
interest on Notes called for redemption ceases to accrue on and after the
redemption date; and (8) that no representation is made as to the
correctness or accuracy of the CUSIP number listed in such notice and
printed on the Notes.
(b) At the Company's request, the Trustee shall (at the
Company's expense) give the notice of any redemption to Holders;
provided, however, that the Company shall deliver to the Trustee, at
least 45 days prior to the date of any optional redemption and at least
10 days prior to the date that notice of such redemption is to be mailed
to Holders, an Officers' Certificate that (i) requests the Trustee to
give notice of the redemption to Holders, (ii) sets forth the information
to be provided to Holders in the notice of redemption, as set forth in
the preceding paragraph, and (iii) sets forth the aggregate principal
amount of Notes to be redeemed and the amount of accrued and unpaid
interest thereon as of the redemption date. If the Trustee is not a
Registrar, the Company shall, concurrently with any such request, cause
the Registrar to deliver to the Trustee a certificate (upon which the
Trustee may rely) setting forth the name of, the address of, and the
aggregate principal amount of Notes held by, each Holder.
SECTION 3.05. Effect of Notice of Redemption.
Once notice of redemption is mailed, Notes called for
redemption become due and payable on the redemption date at the price set
forth in the Note.
SECTION 3.06. Deposit of Redemption Price.
(a) On or prior to any redemption date, the Company shall
deposit with the Trustee or with the Paying Agent money sufficient to pay
the redemption price of, and accrued interest on, all Notes to be
redeemed on that date. The Trustee or the Paying Agent shall return to
the Company, no later than five days after any redemption date, any money
(including accrued interest) that exceeds the amount necessary to pay the
redemption price of, and accrued interest on, all Notes redeemed.
(b) If the Company complies with Section 3.06(a), interest
on the Notes to be redeemed will cease to accrue on such Notes on the
applicable redemption date, whether or not such Notes are presented for
payment. If a Note is redeemed on or after an interest record date but on
or prior to the related interest payment date, then any accrued and
unpaid interest shall be paid to the Person in whose name such Note was
registered at the close of business of such record date. If any Note
called for redemption shall not be so paid upon surrender for redemption
because of the failure of the Company to comply with the preceding
paragraph, to the extent lawful, the Company shall pay interest on the
overdue principal, premium, if any, and interest from the redemption date
until such principal, premium and interest are paid, at a rate equal to
2% per annum in excess of the then applicable interest rate on the Notes
compounded semi-annually as provided in the Notes and Section 4.01.
SECTION 3.07. Notes Redeemed in Part.
Subject to Section 2.15, upon surrender of a Note that is
redeemed in part, the Company shall issue and the Trustee shall
authenticate for the Holder at the Company's expense a new Note equal in
principal amount to the unredeemed portion of the Note surrendered.
ARTICLE IV
COVENANTS
SECTION 4.01. Payment of Principal, Premium and Interest.
The Company shall pay the principal of, and premium, if
any, and interest on, the Notes on the dates and in the manner provided
in the Notes and in this Indenture.
Holders must surrender their Notes to the Paying Agent to
collect principal payments. Principal, premium, or interest shall be
considered paid on the date due if, by 11 a.m. Eastern Standard Time on
such date, the Company has deposited with the Paying Agent money in
immediately available funds designated for and sufficient to pay such
principal, premium or interest. The Paying Agent shall return to the
Company, no later than five days following the date of payment, any money
(including accrued interest) that exceeds the amount then due and payable
on the Notes.
The Company shall pay interest on overdue principal,
premium and interest (without regard to any applicable grace period) at a
rate equal to 2% per annum in excess of the then applicable interest rate
on the Notes, compounded semiannually.
Payments of the principal of, premium (if any) and
interest on any Global Notes will be made to the Depositary or its
nominee, as the case may be, as the registered owner thereof. None of the
Company, the Trustee nor any Paying Agent will have any responsibility or
liability for any aspect of the records relating to or payments made on
account of beneficial ownership interests in any Global Notes or for
maintaining, supervising or reviewing any records relating to such
beneficial ownership interest.
SECTION 4.02. Provision of Financial Statements.
Whether or not the Company is then subject to Section
13(a) or 15(d) of the Exchange Act, the Company will file with the
Commission, so long as any Notes are outstanding, the annual reports,
quarterly reports and other periodic reports which the Company would have
been required to file with the Commission pursuant to such Section 13(a)
or 15(d) if the Company were so subject, and such documents shall be
filed with the Commission on or prior to the respective dates (the
"Required Filing Dates") by which the Company would have been required so
to file such documents if the Company were so subject. The Company will
also, in any event, (i) within 15 days of each Required Filing Date, (a)
transmit by mail to all holders of Notes, as their names and addresses
appear in the Note register, without cost to such holders and (b) file
with the Trustee copies of the annual reports, quarterly reports and
other periodic reports which the Company would have been required to file
with the Commission pursuant to Section 13(a) or 15(d) of the Exchange
Act if the Company were subject to such Sections and (ii) if filing such
documents by the Company with the Commission is prohibited under the
Exchange Act, promptly upon written request and payment of the reasonable
cost of duplication and delivery, supply copies of such documents to any
prospective Holder at the Company's cost. In addition, the Company will
file with the Commission and with the Trustee, in accordance with rules
and regulations prescribed by the Commission, such additional
information, documents and reports with respect to compliance with the
conditions and covenants provided for herein as may be required by such
rules and regulations.
SECTION 4.03. Compliance Certificate.
The Company shall deliver to the Trustee, within 135 days
after the end of each fiscal year of the Company, an Officers'
Certificate, which shall be executed, on behalf of the Company by two
Officers, at least one of which shall be the principal executive officer,
principal financial officer or principal accounting officer of the
Company, stating that (i) a review of the activities of the Company and
its Subsidiaries during the preceding fiscal year has been made to
determine whether the Company has kept, observed, performed and fulfilled
all of its obligations under this Indenture and the Notes, (ii) such
review was supervised by the Officers of the Company signing such
certificate, and (iii) that to the best knowledge of each Officer signing
such certificate, (a) the Company has kept, observed, performed and
fulfilled each and every condition and covenant contained in this
Indenture and is not in default in the performance or observance of any
of the terms, provisions and conditions of this Indenture (or, if a
Default or Event of Default occurred, describing all such Defaults or
Events of Default of which each such Officer may have knowledge and what
action the Company has taken or proposes to take with respect thereto),
and (b) no event has occurred and remains in existence by reason of which
payments on account of the principal of, or premium, if any, or interest
on, the Notes are prohibited or if such event has occurred, a description
of the event and what action the Company is taking or proposes to take
with respect thereto. The Officers' Certificate shall also notify the
Trustee should the Company elect to change the manner in which it fixes
its fiscal year end. For purposes of this paragraph, such compliance
shall be determined without regard to any period of grace or requirement
of notice provided hereunder.
So long as not contrary to the then current
recommendations of the American Institute of Certified Public
Accountants, the annual financial statements delivered pursuant to
Section 4.02 shall be accompanied by a written statement of the Company's
independent public accountants (who shall be a firm of established
national reputation reasonably satisfactory to the Trustee) that in
making the examination necessary for certification of such financial
statements nothing has come to their attention that would lead them to
believe that the Company has violated any provision of Section 4.01,
4.05, 4.07, 4.08, 4.09, 4.11, 4.12, 4.13, 4.14, 4.15, 4.16, 4.17 or 4.18
or Article V or, if any such violation has occurred, specifying the
nature and period of existence thereof, it being understood that such
accountants shall not be liable directly or indirectly to any Person for
any failure to obtain knowledge of any such violation.
The Company will, so long as any of the Notes are
outstanding, deliver to the Trustee, promptly after any Officer of the
Company becomes aware of any Default or Event of Default, an Officers'
Certificate specifying such Default or Event of Default and what action
the Company is taking or proposes to take with respect thereto.
The Company shall deliver to the Trustee such other
information or documents reasonably requested by the Trustee in
connection with the compliance by the Trustee or the Company with the
TIA.
SECTION 4.04. Stay, Extension and Usury Laws.
The Company covenants (to the extent that it may lawfully
do so) that it will not at any time insist upon, plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay, extension
or usury law wherever enacted, now or at any time hereafter in force,
that might affect the covenants or the performance of its obligations
under this Indenture and the Notes; and the Company (to the extent it may
lawfully do so) hereby expressly waives all benefit or advantage of any
such law, and covenants that it will not, by resort to any such law,
hinder, delay or impede the execution of any power granted to the Trustee
pursuant to this Indenture, but will suffer and permit the execution of
every such power as though no such law has been enacted.
SECTION 4.05. Limitation on Restricted Payments.
(a) The Company will not, and will not permit any of its
Subsidiaries to, directly or indirectly, make any Restricted Payment,
unless at the time of and immediately after giving effect to the proposed
Restricted Payment (with the value of any such Restricted Payment, if
other than cash, to be determined by the Board of Directors in good faith
and which determination shall be conclusive and evidenced by a board
resolution), (i) no Default or Event of Default (and no event that, after
notice or lapse of time, or both, would become an "event of default"
under the terms of any Indebtedness of the Company or its Subsidiaries)
shall have occurred and be continuing or would occur as a consequence
thereof, (ii) the Company could incur at least $1.00 of additional
Indebtedness pursuant to the provisions of Section 4.07(a) and (iii) the
aggregate amount of all Restricted Payments made after the Issue Date
shall not exceed the sum of (a) 50% of cumulative Consolidated Net Income
of the Company (or, in the case such cumulative Consolidated Net Income
shall be negative, less 100% of such deficit) since the end of the fiscal
quarter in which the Issue Date occurs through the last day of the most
recent fiscal quarter, plus (b) the aggregate amount of all net cash
proceeds received after the Issue Date by the Company (but excluding the
net cash proceeds received by the Company from the Concurrent Offering)
from the issuance and sale (other than to a Subsidiary of the Company) of
Capital Stock of the Company (other than Disqualified Stock) and the
principal amount of Indebtedness of the Company or any Subsidiary
Guarantor that had been converted into or exchanged for Capital Stock of
the Company and, in either case, to the extent that such proceeds are not
used to redeem, repurchase, retire or otherwise acquire Capital Stock or
any Indebtedness of the Company or any of its Subsidiaries pursuant to
clause (ii) of Section 4.05(b), plus (c) in the case of the disposition
or repayment of any Investment for cash, which Investment constituted a
Restricted Payment made after the Issue Date, an amount equal to the
lesser of the return of capital with respect to such Investment and the
cost of such Investment, in either case, reduced (but not below zero) by
the excess, if any, of the cost of the disposition of such Investment
over the gain, if any, realized by the Company or such Subsidiary in
respect of such disposition.
(b) The provisions of Section 4.05(a) will not prohibit,
so long as there is no Default or Event of Default continuing, the
following actions (collectively, "Permitted Payments"):
(i) the payment of any dividend within 60 days after the
date of declaration thereof, if at such declaration date such
payment would have been permitted under this Indenture, and such
payment shall be deemed to have been paid on such date of
declaration for purposes of clause (iii) of Section 4.05(a);
(ii) the redemption, repurchase, retirement, defeasance
or other acquisition of any Capital Stock or any Indebtedness of
the Company in exchange for, or out of the proceeds of, the
substantially concurrent sale (other than to a Subsidiary of the
Company) of Capital Stock of the Company (other than any
Disqualified Stock);
(iii) the repurchase, redemption or other repayment of
any Subordinated Debt of the Company or a Subsidiary Guarantor in
exchange for, by conversion into or solely out of the proceeds of
the substantially concurrent sale (other than to a Subsidiary of
the Company) of Subordinated Debt of the Company or such
Subsidiary Guarantor with a Weighted Average Life to Maturity
equal to or greater than the then remaining Weighted Average Life
to Maturity of the Subordinated Debt repurchased, redeemed or
repaid;
(iv) the redemption, repurchase, retirement, defeasance
or other acquisition of Capital Stock of the Company or any
options or stock appreciation rights related to Capital Stock of
the Company held by officers or employees (or their estates or
beneficiaries of estates) upon death, disability, retirement or
termination of employment; provided that the amount of Permitted
Payments made under this clause (iv) shall not exceed $1 million
per annum;
(v) any redemption of the Company's 14% Cumulative
Redeemable Convertible Preferred Stock (i) having an aggregate
stated value of $5.5 million out of the proceeds of the issuance
of the Notes or the Concurrent Offering or (ii) at its stated
maturity out of the proceeds of a concurrent issuance of Capital
Stock (other than Disqualified Stock); and
(vi) Restricted Investments received as consideration in
connection with an Asset Sale made in compliance with the
Indenture.
(c) In computing the amount of Restricted Payments for
purposes of Section 4.05(a)(iii), Restricted Payments made under Sections
4.05(b)(iv) and 4.05(b)(vi) shall be included and Restricted Payments
made under Sections 4.05(b)(i), 4.05(b)(ii), 4.05(b)(iii) and Section
4.05(b)(v) shall be excluded.
SECTION 4.06. Corporate Existence.
The Company will do or cause to be done all things
necessary to preserve and keep in full force and effect its corporate
existence and the corporate, partnership or other existence of each of
its Subsidiaries in accordance with the respective organizational
documents of each of its Subsidiaries and the rights (charter and
statutory), licenses and franchises of the Company and each of its
Subsidiaries; provided, however, that the Company shall not be required
to preserve any such right, license or franchise, or the corporate,
partnership or other existence of any of its Subsidiaries, if the Board
of Directors shall determine that the preservation thereof is no longer
desirable in the conduct of the business of the Company and its
Subsidiaries taken as a whole, and that the loss thereof is not adverse
in any material respect to the Holders.
SECTION 4.07. Limitation on Incurrence of Indebtedness.
(a) The Company will not, and will not permit any of its
Subsidiaries to, issue, create, incur, assume or directly or indirectly
guarantee or in any other manner become directly or indirectly liable for
("Incur") any Indebtedness (including Acquired Debt), except for
Permitted Indebtedness, unless at the time of and immediately after
giving pro forma effect to such incurrence, the Consolidated Fixed Charge
Coverage Ratio of the Company and its Subsidiaries would be greater than
(x) 1.5 to 1.0 if the Indebtedness is incurred prior to December 31,
1997, (y) 2.25 to 1.0 if the Indebtedness is Incurred prior to December
31, 1998 or (z) 2.5 to 1.0 if the Indebtedness is incurred on or after
December 31, 1998.
(b) Section 4.07(a) will not apply to the Incurrence of
any of the following (collectively, "Permitted Indebtedness"):
(i) Indebtedness of the Company Incurred under the Credit
Facility in an aggregate principal amount at any time outstanding
not to exceed the sum of (1) 80% of the net amount of accounts
receivable (as determined under GAAP) of the Company and the
Subsidiaries plus (2) an amount equal to $1,300 multiplied by the
number of Eligible Pay Telephones, in each case as determined in
good faith by the Company at the time of each incurrence of
Indebtedness under the Credit Facility; provided that in no event
shall the aggregate principal amount of Indebtedness outstanding
at any one time under the Credit Facility permitted pursuant to
this clause (i) exceed $25 million less the aggregate amount of
any other principal payments thereunder constituting permanent
reductions of such Indebtedness pursuant to and in accordance
with the covenant described under Section 4.13; and provided,
further, that in no event shall the aggregate principal amount of
Indebtedness outstanding at any one time under the Credit
Facility pursuant to this Section 4.07(b)(i) which was Incurred
for working capital purposes exceed $15 million;
(ii) Indebtedness of the Company under the Notes and the
Indenture and of any Subsidiary Guarantor represented by a
Subsidiary Guarantee and other Indebtedness of the Company and
the Subsidiary Guarantors outstanding on the Issue Date;
(iii) Indebtedness owed by any Subsidiary of the Company
to the Company or to a Subsidiary Guarantor, or owed by the
Company to any Subsidiary Guarantor; provided that any such
Indebtedness shall be held by a Person which is either the
Company or a Subsidiary Guarantor and provided, further, that (A)
any such Indebtedness of a Subsidiary of the Company shall not be
subordinated to any other Indebtedness of such Subsidiary and (B)
any such Indebtedness owed to a Subsidiary Guarantor shall be
unsecured and shall be subordinated to the payment when due of
the Notes and, provided, further, that an incurrence of
additional Indebtedness which is not permitted under this clause
(iii) shall be deemed to have occurred upon either (a) the
transfer or other disposition of any such Indebtedness to a
Person other than the Company or a Subsidiary of the Company or
(b) the sale, lease, transfer or other disposition of shares of
Capital Stock (including by consolidation or merger) of any such
Subsidiary of the Company to a Person other than the Company or a
Subsidiary Guarantor such that such Subsidiary ceases to be a
Subsidiary Guarantor;
(iv) Indebtedness of the Company or any Subsidiary
Guarantor consisting of guarantees of any Indebtedness of the
Company or any Subsidiary Guarantor which Indebtedness has been
Incurred in accordance with the provisions of the Indenture;
(v) Indebtedness arising with respect to Interest Rate
Agreement Obligations Incurred for the purpose of fixing or
hedging interest rate risk with respect to any floating rate
Indebtedness that is permitted by the terms of the Indenture to
be outstanding; provided, however, that the notional principal
amount of such Interest Rate Agreement Obligation does not exceed
the principal amount of the Indebtedness to which such Interest
Rate Agreement Obligation relates; and
(vi) Indebtedness of the Company or a Subsidiary of the
Company incurred in connection with or given in exchange for the
renewal, extension, substitution, refunding, defeasance,
refinancing or replacement of any Indebtedness permitted to be
incurred or outstanding under the Consolidated Fixed Charge
Coverage Ratio of the first paragraph of this covenant or
pursuant to clause (ii) above ("Refinancing Indebtedness");
provided that (a) the principal amount of such Refinancing
Indebtedness shall not exceed the principal amount of the
Indebtedness so renewed, extended, substituted, refunded,
defeased, refinanced or replaced (plus the premiums or other
payments paid in connection therewith (which shall not exceed the
stated amount of any premium or other payments required to be
paid in connection with such a refinancing pursuant to the terms
of the Indebtedness being renewed, extended, substituted,
refunded, defeased, refinanced or replaced) and the expenses
incurred in connection therewith); (b) the Refinancing
Indebtedness shall have a Weighted Average Life to Maturity equal
to or greater than the Weighted Average Life to Maturity of the
Indebtedness being renewed, extended, substituted, refunded,
defeased, refinanced or replaced; and (c) such Refinancing
Indebtedness shall not rank senior to, and shall be at least as
subordinated, in right of payment to the Notes or the Subsidiary
Guarantees, as the case may be, as the Indebtedness being
renewed, extended, substituted, refunded, defeased, refinanced or
replaced.
SECTION 4.08. Taxes.
The Company shall, and shall cause each of its
Subsidiaries to, pay prior to delinquency all taxes, assessments and
governmental levies the failure of which to pay could reasonably be
expected to result in a material adverse effect on the condition
(financial or otherwise), business or results of operations of the
Company and its Subsidiaries taken as a whole, except for those taxes
contested in good faith by appropriate proceedings.
SECTION 4.09. Limitation on Dividends and Other
Payment Restrictions Affecting Subsidiaries.
The Company will not, and will not permit any of its
Subsidiaries to, directly or indirectly, create or otherwise cause or
suffer to exist or become effective any encumbrance or restriction on the
ability of any Subsidiary of the Company to (i) pay dividends or make any
other distributions to the Company or any other Subsidiary of the Company
on its Capital Stock or with respect to any other interest or
participation in, or measured by, its profits, or pay any Indebtedness
owed to the Company or any other Subsidiary of the Company, (ii) make
loans or advances to the Company or any other Subsidiary of the Company,
or (iii) transfer any of its properties or assets to the Company or any
other Subsidiary of the Company (collectively, "Payment Restrictions"),
except for such encumbrances or restrictions existing under or by reason
of (a) the Credit Facility as in effect on the Issue Date and any
amendments, restatements, renewals, replacements or refinancings thereof;
provided that such amendments, restatements, renewals, replacements or
refinancings are no more restrictive in the aggregate with respect to
such dividend and other payment restrictions than those contained in the
Credit Facility immediately prior to any such amendment, restatement,
renewal, replacement or refinancing, (b) applicable law, (c) any
instrument governing Indebtedness or Capital Stock of an Acquired Person
acquired by the Company or any of its Subsidiaries as in effect at the
time of such acquisition (except to the extent such Indebtedness was
incurred in connection with such acquisition); provided that such
restriction is not applicable to any Person, or the properties or assets
of any Person, other than the Acquired Person, (d) customary
non-assignment provisions in leases entered into in the ordinary course
of business and consistent with past practices, (e) Purchase Money
Indebtedness for property acquired in the ordinary course of business
that only impose restrictions on the property so acquired, (f) an
agreement for the sale or disposition of the Capital Stock or assets of
such Subsidiary; provided that such restriction is only applicable to
such Subsidiary or assets, as applicable, and such sale or disposition
otherwise is permitted under the covenant described under Section 4.13;
and provided, further, that such restriction or encumbrance shall be
effective only for a period from the execution and delivery of such
agreement through a termination date not later than 270 days after such
execution and delivery, (g) Refinancing Indebtedness permitted under this
Indenture; provided that the restrictions contained in the agreements
governing such Refinancing Indebtedness are no more restrictive in the
aggregate than those contained in the agreements governing the
Indebtedness being refinanced immediately prior to such refinancing, (h)
any agreement in effect on the Issue Date and (i) provisions in security
agreements relating to secured Indebtedness of a Subsidiary to the extent
such provisions restrict the transfer of the property that is the subject
of such security agreements.
SECTION 4.10. Maintenance of Office or Agency.
The Company will maintain in the Borough of Manhattan, the
City of New York, an office or an agency (which may be an office of any
Agent) where Notes may be surrendered for registration of transfer or
exchange and where notices and demands to or upon the Company in respect
of the Notes and this Indenture may be served. The Company will give
prompt written notice to the Trustee of any change in the location of
such office or agency. If at any time the Company shall fail to furnish
the Trustee with the address thereof, such presentations, surrenders,
notices and demands may be made or served at the Corporate Trust Office.
The Company may also from time to time designate one or
more other offices or agencies where the Notes may be presented or
surrendered for any or all such purposes and may from time to time
rescind such designations; provided, however, that no such designation or
rescission shall in any matter relieve the Company of its obligations to
maintain an office or agency in the Borough of Manhattan, the City of New
York, for such purposes. The Company will give prompt written notice to
the Trustee of any such designation or rescission and of any change in
the location of any such other office or agency.
The Company hereby designates the Corporate Trust Office
of the Trustee as one such office or agency of the Company in accordance
with Section 2.03.
SECTION 4.11. Change of Control.
(a) In the event of a Change of Control, the Company will
make an offer to purchase all of the then outstanding Notes at a purchase
price in cash equal to 101% of the aggregate principal amount thereof,
plus accrued and unpaid interest to the date of purchase, in accordance
with the terms set forth below in Section 4.11(b)-(e) (a "Change of
Control Offer").
(b) Within 30 days following the occurrence of any Change
of Control, the Company shall mail to each Holder at such Holder's
registered address a notice stating: (i) that a Change of Control has
occurred and that such Holder has the right to require the Company to
repurchase all or a portion (equal to $1,000 or an integral multiple
thereof) of such Holder's Notes at a purchase price in cash equal to 101%
of the aggregate principal amount thereof, plus accrued and unpaid
interest to the date of purchase (the "Change of Control Purchase Date"),
which shall be a Business Day, specified in such notice, that is not
earlier than 30 days or later than 60 days from the date such notice is
mailed, (ii) the amount of accrued and unpaid interest as of the Change
of Control Purchase Date, (iii) that any Note not tendered will continue
to accrue interest, (iv) that, unless the Company defaults in the payment
of the purchase price for the Notes payable pursuant to the Change of
Control Offer, any Notes accepted for payment pursuant to the Change of
Control Offer shall cease to accrue interest on and after the Change of
Control Purchase Date, (v) that Holders electing to tender any Note or
portion thereof will be required to surrender their Note, with a form
entitled "Option of Holder to Elect Purchase" completed, to the Paying
Agent at the address specified in the notice prior to the close of
business on the Business Day preceding the Change of Control Purchase
Date, provided, that, Holders electing to tender only a portion of any
Note must tender a principal amount of $1,000 or integral multiples
thereof; (vi) that Holders will be entitled to withdraw their election to
tender Notes if the Paying Agent receives, not later than the close of
business on the third Business Day preceding the Change of Control
Purchase Date, a telegram, facsimile transmission or letter setting forth
the name of the Holder, the principal amount of Notes delivered for
purchase, and a statement that such Holder is withdrawing his election to
have such Notes purchased; and (vii) that, subject to Section 2.15,
Holders whose Notes are accepted for payment in part will be issued new
Notes equal in principal amount to the unpurchased portion of Notes
surrendered, provided, that, only Notes in a principal amount of $1,000
or integral multiples thereof will be accepted for payment in part.
(c) The Company shall furnish to the Trustee, at least
seven Business Days before notice of the corresponding Change of Control
Offer is to be mailed to Holders, an Officers' Certificate setting forth
that the Change of Control Offer is being made pursuant to Section 4.11,
the Change of Control Purchase Date, the maximum principal amount of
Notes the Company is offering to purchase pursuant to such Change of
Control Offer, the purchase price for such Notes and the amount of
accrued and unpaid interest on such Notes as of the Change of Control
Purchase Date.
The Company will also provide the Trustee a copy of the
notice sent to holders pursuant to Section 4.11(b) and any additional
information that the Trustee reasonably requests in connection with any
Change of Control Offer.
(d) On the Change of Control Purchase Date, the Company
will (i) accept for payment all Notes or portions thereof tendered
pursuant to the Change of Control Offer, (ii) deposit with the Paying
Agent the aggregate purchase price of all Notes or portions thereof
accepted for payment and any accrued and unpaid interest on such Notes as
of the Change of Control Purchase Date, and (iii) deliver or cause to be
delivered to the Trustee all Notes tendered pursuant to the Change of
Control Offer, together with an Officers' Certificate stating the Notes
or portions thereof being purchased by the Company. If less than all
Notes tendered pursuant to the Change of Control Offer are to be
purchased by the Company for any reason consistent with this Indenture,
the Trustee, on behalf of the Company, shall select the outstanding Notes
to be purchased by the Company 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 listed on such an exchange, the Trustee
on behalf of the Company, shall select the outstanding Notes to be
purchased, on a pro rata basis, by lot or by such method as the Trustee
deems fair and appropriate; provided that Notes purchased in part shall
only be purchased in integral multiples of $1,000. The Paying Agent shall
promptly mail to each Holder of Notes or portions thereof accepted for
payment an amount equal to the purchase price for such Notes plus any
accrued and unpaid interest thereon, and the Company shall execute and
issue and the Trustee shall promptly authenticate and mail to such Holder
of Notes accepted for payment in part a new Note equal in principal
amount to any unpurchased portion of the Notes, and any Note not accepted
for payment in whole or in part for any reason consistent with this
Indenture shall be promptly returned to the Holder of such Note. On and
after a Change of Control Purchase Date, interest will cease to accrue on
the Notes or portions thereof accepted for payment, unless the Company
defaults in the payment of the purchase price therefor. The Company will
announce the results of the Change of Control Offer to Holders of the
Notes on or as soon as practicable after the Change of Control Purchase
Date.
(e) The Company will comply with the applicable tender
offer rules, including the requirements of Rule 14e-1 under the Exchange
Act, and all other applicable securities laws and regulations in
connection with any Change of Control Offer.
SECTION 4.12. Special Offer upon Failure To Consummate Cherokee Acquisition.
(a) In the event the Cherokee Acquisition is not
consummated prior to the Special Offer Notice Date, the Company will be
obligated to make an offer to purchase up to $35 million aggregate
principal amount of Notes at a price equal to 101% of such principal
amount, plus accrued and unpaid interest to the date of purchase, in
accordance with the terms set forth below in Section 4.12(b)-(e) (a
"Special Offer").
(b) On the Special Offer Notice Date, the Company shall
mail to each Holder, at such Holder's registered address, a notice
stating: (i) that the Cherokee Acquisition has not occurred and the
Company is offering to purchase $35 million aggregate principal amount of
Notes at a purchase price (the "Special Offer Price") in cash equal to
101% of the aggregate principal amount thereof plus accrued and unpaid
interest to the date of purchase (the "Special Offer Purchase Date"),
which shall be a Business Day, specified in such notice, that is not
earlier than 30 days or later than 60 days (such 60th day or, if not a
Business Day, the immediately preceding Business Day being referred to as
the "Final Special Offer Purchase Date") from the date such notice is
mailed, (ii) the amount of accrued and unpaid interest as of the
specified Special Offer Purchase Date, (iii) that any Note not tendered
will continue to accrue interest, (iv) that unless the Company defaults
in the payment of the purchase price for the Notes payable pursuant to
the Special Offer, any Notes accepted for payment pursuant to the Special
Offer shall cease to accrue interest on and after the Special Offer
Purchase Date, (v) that Holders electing to tender any Note or portion
thereof will be required to surrender their Note with a form entitled
"Option of Holder to Elect Purchase" completed, to the Paying Agent at
the address specified in the notice prior to the close of business on the
Business Day preceding the Special Offer Purchase Date, provided, that,
Holders electing to tender only a portion of any Note must tender a
principal amount of $1,000 or integral multiples thereof; (vi) that
Holders will be entitled to withdraw their election to tender Notes if
the Paying Agent receives, not later than the close of business on the
third Business Day preceding the Special Offer Purchase Date, a telegram,
facsimile transmission or letter setting forth the name of the Holder,
the principal amount of Notes delivered for purchase, and a statement
that such Holder is withdrawing his election to have such Notes
purchased; and (vii) that, subject to Section 2.15, Holders whose Notes
are accepted for payment in part will be issued new Notes equal in
principal amount to the unpurchased portion of Notes surrendered,
provided, that, only Notes in principal amount of $1,000 or integral
multiples thereof will be accepted for payment in part.
(c) The Company shall furnish to the Trustee, at least
seven Business Days before notice of the corresponding Special Offer is
to be mailed to Holders, an Officers' Certificate setting forth (i) that,
if the Cherokee Acquisition is not consummated prior to the Special Offer
Notice Date, the Special Offer will be made pursuant to Section 4.12,
(ii) the Special Offer Purchase Date, (iii) that the Company is offering
to purchase $35 million principal amount of Notes pursuant to such
Special Offer, (iv) the Special Offer Purchase Price for such Notes and
(v) the amount of accrued and unpaid interest on such Notes as of the
Special Offer Purchase Date.
The Company will also provide the Trustee with a copy of
the notice sent to holders pursuant to Section 4.12(b) and additional
information that the Trustee reasonably requests in connection with any
Special Offer.
(d) On the Special Offer Purchase Date, the Company will
(i) accept for payment $35 million aggregate principal amount of Notes or
such lesser amount as is tendered pursuant to the Special Offer and (ii)
deliver or cause to be delivered to the Trustee all Notes tendered
pursuant to the Special Offer, together with an Officers' Certificate
stating the Notes or portions thereof being purchased by the Company, and
the Trustee will apply the Trust Funds to the purchase of such Notes. If
less than all Notes tendered pursuant to the Special Offer are accepted
for payment by the Company for any reason consistent with the Indenture,
selection of the Notes to be purchased by the Company shall be 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 method as the Trustee
shall deem fair and appropriate; provided that Notes accepted for payment
in part shall only be purchased in integral multiples of $1,000. The
Paying Agent shall promptly mail to each holder of Notes or portions
thereof accepted for payment an amount equal to the purchase price for
such Notes plus any accrued and unpaid interest thereon, and, subject to
Section 2.15, the Company shall execute and issue and the Trustee shall
promptly authenticate and mail to such holder of Notes accepted for
payment in part a new Note equal in principal amount to any unpurchased
portion of the Notes, and any Note not accepted for payment in whole or
in part for any reason consistent with this Indenture shall be promptly
returned to the holder of such Note. On and after the Special Offer
Purchase Date, interest will cease to accrue on the Notes or portions
thereof accepted for payment, unless the Company defaults in the payment
of the purchase price therefor. The Company will announce the results of
the Special Offer to Holders of the Notes on or as soon as practicable
after the Special Offer Purchase Date.
(e) The Company will comply with the applicable tender
offer rules, including the requirements of Rule 14e-1 under the Exchange
Act, and all other applicable securities laws and regulations in
connection with any Special Offer.
SECTION 4.13. Limitation on Asset Sales.
(a) The Company will not, and will not permit any of its
Subsidiaries to, make any Asset Sale unless (i) the Company or such
Subsidiary, as the case may be, receives consideration at the time of
such Asset Sale at least equal to the fair market value (determined by
the Board of Directors in good faith, which determination shall be
evidenced by a board resolution) of the assets or other property sold or
disposed of in the Asset Sale, and (ii) at least 75% of such
consideration is in the form of cash or Cash Equivalents; provided that
for purposes of this covenant "cash" shall include the amount of any
liabilities (other than liabilities that are by their terms subordinated
to the Notes or any Subsidiary Guarantee) of the Company or such
Subsidiary (as shown on the Company's or such Subsidiary's most recent
balance sheet or in the notes thereto) that are assumed by the transferee
of any such assets or other property in such Asset Sale (and excluding
any liabilities that are incurred in connection with or in anticipation
of such Asset Sale), but only to the extent that such assumption is
effected on a basis under which there is no further recourse to the
Company or any of its Subsidiaries with respect to such liabilities.
(b) Within 270 days after any Asset Sale, the Company may
elect to apply or cause to be applied the Net Proceeds from such Asset
Sale to (a) repay amounts outstanding under the Credit Facility, and
permanently reduce the commitments or amounts available to be borrowed
thereunder by the same amount, (b) repay amounts outstanding under Other
Senior Debt that is secured by the asset being sold, to the extent
repayment is required by the terms of the agreement governing the same,
(c) use no more than the Other Senior Debt Pro Rata Share of such Net
Cash Proceeds to repay amounts outstanding under Other Senior Debt and/or
(d) make an investment in, or acquire assets directly or reasonably
related to, the business of the Company and its Subsidiaries existing on
the Issue Date. Pending the final application of any such Net Proceeds,
the Company may temporarily reduce amounts outstanding under the Credit
Facility or temporarily invest such Net Proceeds in any manner permitted
by this Indenture. Any Net Proceeds from an Asset Sale not applied or
invested as provided in the first sentence of this paragraph within 270
days of such Asset Sale will be deemed to constitute "Excess Proceeds" on
the 271st day after such Asset Sale.
(c) Not later than 10 Business Days after any date (an
"Asset Sale Offer Trigger Date") that the aggregate amount of Excess
Proceeds exceeds $10,000,000, the Company shall commence an offer to
purchase the maximum principal amount of Notes that may be purchased out
of all such Excess Proceeds (an "Asset Sale Offer") at a price in cash
equal to 100% of the principal amount thereof, plus accrued and unpaid
interest to the date of purchase (the "Asset Sale Offer Purchase Date").
The offer to purchase shall remain open for a minimum of 20 business days
or such longer period as is required by law. To the extent that any
Excess Proceeds remain after completion of an Asset Sale Offer, the
Company may use the remaining amount for general corporate purposes and
such amount shall no longer constitute "Excess Proceeds."
(d) Within 10 Business Days following any Asset Sale Offer
Trigger Date, the Company shall mail to each holder of Notes at such
holder's registered address a notice stating: (i) that an Asset Sale
Offer Trigger Date has occurred and that the Company is offering to
purchase the maximum principal amount of Notes that may be purchased out
of the Excess Proceeds at an offer price in cash equal to 100% of the
principal amount thereof, plus accrued and unpaid interest to the Asset
Sale Offer Purchase Date, which shall be a Business Day, specified in
such notice, that is not earlier than 30 days or later than 60 days from
the date such notice is mailed, (ii) the amount of accrued and unpaid
interest as of the Asset Sale Offer Purchase Date, (iii) that any Note
not tendered will continue to accrue interest, (iv) that, unless the
Company defaults in the payment of the purchase price for the Notes
payable pursuant to the Asset Sale Offer, any Notes accepted for payment
pursuant to the Asset Sale Offer shall cease to accrue interest on and
after the Asset Sale Offer Purchase Date, (v) that Holders electing to
tender any Note or portion thereof will be required to surrender their
Note, with a form entitled "Option of Holder to Elect Purchase"
completed, to the Paying Agent at the address specified in the notice
prior to the close of business on the Business Day preceding the Asset
Sale Offer Purchase Date; provided that Holders electing to tender only a
portion of any Note must tender a principal amount of $1,000 or integral
multiples thereof; (vi) that Holders will be entitled to withdraw their
election to tender Notes if the Paying Agent receives, not later than the
close of business on the third Business Day preceding the Asset Sale
Offer Purchase Date, a telegram, facsimile transmission or letter setting
forth the name of the Holder, the principal amount of Notes delivered for
purchase, and a statement that such Holder is withdrawing his election to
have such Notes purchased; and (vii) that, subject to Section 2.15,
Holders whose Notes are accepted for payment in part will be issued new
Notes equal in principal amount to the unpurchased portion of Notes
surrendered; provided that only Notes in a principal amount of $1,000 or
integral multiples thereof will be accepted for payment in part.
(e) The Company shall furnish to the Trustee, at least
seven Business Days before notice of the corresponding Asset Sale Offer
is to be mailed to Holders, an Officers' Certificate setting forth that
the Asset Sale Offer is being made pursuant to Section 4.13, the Asset
Sale Offer Purchase Date, the maximum principal amount of Notes the
Company is offering to purchase pursuant to such Asset Sale Offer, the
purchase price for such Notes and the amount of accrued and unpaid
interest on such Notes as of the Asset Sale Offer Purchase Date.
The Company will also provide the Trustee a copy of the
notice sent to holders pursuant to Section 4.13(d) and any additional
information that the Trustee reasonably requests in connection with any
Asset Sale Offer.
(f) On the Asset Sale Offer Purchase Date, the Company
will (i) accept for payment the maximum principal amount of Notes or
portions thereof tendered pursuant to the Asset Sale Offer that can be
purchased out of Excess Proceeds from such Asset Sale, (ii) deposit with
the Paying Agent the aggregate purchase price of all Notes or portions
thereof accepted for payment and any accrued and unpaid interest on such
Notes as of the Asset Sale Offer Purchase Date, and (iii) deliver or
cause to be delivered to the Trustee all Notes tendered pursuant to the
Asset Sale Offer, together with an Officers' Certificate stating the
Notes or portions thereof being purchased by the Company. If less than
all Notes tendered pursuant to the Asset Sale Offer are to be purchased
by the Company for any reason consistent with this Indenture, the
Trustee, on behalf of the Company, shall select the outstanding Notes to
be purchased by the Company 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 listed on such an exchange, the Trustee
on behalf of the Company, shall select the outstanding Notes to be
purchased, on a pro rata basis, by lot or by such method as the Trustee
deems fair and appropriate; provided that Notes purchased in part shall
only be purchased in integral multiples of $1,000. The Paying Agent shall
promptly mail to each holder of Notes or portions thereof accepted for
payment an amount equal to the purchase price for such Notes plus any
accrued and unpaid interest thereon, and, subject to Section 2.15, the
Company shall execute and issue and the Trustee shall promptly
authenticate and mail to such Holder of Notes accepted for payment in
part a new Note equal in principal amount to any unpurchased portion of
the Notes, and any Note not accepted for payment in whole or in part
shall be promptly returned to the Holder of such Note. On and after an
Asset Sale Offer Purchase Date, interest will cease to accrue on the
Notes or portions thereof accepted for payment, unless the Company
defaults in the payment of the purchase price therefor. The Company will
announce the results of the Asset Sale Offer to Holders on or as soon as
practicable after the Asset Sale Offer Purchase Date.
(g) The Company will comply with the applicable tender
offer rules, including the requirements of Rule 14e-1 under the Exchange
Act, and all other applicable securities laws and regulations in
connection with any Asset Sale Offer.
SECTION 4.14. Limitation on Issuance and Sale of
Preferred Stock of Subsidiaries.
The Company (a) will not, and will not permit any
Subsidiary of the Company to, transfer, convey, sell or otherwise dispose
of any shares of Preferred Stock of such Subsidiary or any other
Subsidiary (other than to the Company or a Subsidiary Guarantor) and (b)
will not permit any Subsidiary of the Company to issue shares of its
Preferred Stock, or securities convertible into, or warrants, rights or
options to subscribe for or purchase shares of, its Preferred Stock to
any person other than to the Company or a Subsidiary Guarantor.
SECTION 4.15. Future Subsidiary Guarantors.
The Company shall cause each Subsidiary of the Company
formed or acquired after the Issue Date to issue a Subsidiary Guarantee
and execute and deliver an indenture supplemental to this Indenture as a
Subsidiary Guarantor.
SECTION 4.16. Maintenance of Properties.
The Company will cause all properties used in the conduct
of its business or the business of any Subsidiary of the Company to be
maintained and kept in good condition, repair and working order and
supplied with all necessary equipment and will cause to be made all
necessary repairs, renewals, replacements, betterments and improvements
thereof, all as in the judgment of the Company advantageously conducted
at all times; provided, however, that nothing in this Section shall
prevent the Company or any Subsidiary of the Company from (i)
discontinuing the operation or maintenance of any of such properties if
such discontinuance is, as determined by the Board of Directors in good
faith, desirable in the conduct of the business of the Company or of any
of its Subsidiaries, (ii) making an Asset Sale that complies with Section
4.13 or (iii) entering into a transaction permitted by Section 5.01 or
10.01(e), as applicable.
SECTION 4.17. Maintenance of Insurance.
The Company shall, and shall cause each of its
Subsidiaries to, keep at all times all of their properties which are of
an insurable nature insured against loss or damage with insurers believed
by the Company to be responsible to the extent that property of similar
character usually is so insured by corporations similarly situated and
owning like properties in accordance with good business practice.
SECTION 4.18. Deposit of Trust Funds with Trustee
Pending Consummation of Cherokee Acquisition.
(a) On the Issue Date, the Company shall deliver to the
Trustee one or more checks for an aggregate amount of $37,076,700 which
amount consists of $35 million plus an additional amount sufficient to
consummate the Special Offer on May 16, 1997 (the "Final Special Offer
Purchase Date") at the Special Offer Price, and the Trustee shall
promptly deposit such check or checks into the Collateral Account (as
defined in Section 4.18(b)).
(b) The Company shall maintain with the Trustee, an
account (the "Collateral Account") designated "Marine Midland Bank, as
Trustee," which account shall be under the sole dominion and control of
the Trustee. Amounts on deposit in the Collateral Account shall be held
as cash or shall be invested and reinvested from time to time, as
directed in writing by the Company, in Cash Equivalents, which shall be
held in the Collateral Account. Any income, including any interest or
capital gains received with respect to the balance from time to time
standing to the credit of the Collateral Account, shall remain, or be
deposited, in the Collateral Account. The Trustee shall have the power to
sell or liquidate the investments in the Collateral Account whenever the
Trustee shall be required pursuant to Section 4.18(d) to release all or
any portion of the amounts in the Collateral Account to permit the
consummation of the Cherokee Acquisition or to employ such amounts to
effect a Special Offer with respect to of the Notes. Subject to Article
VII hereof, the Trustee, solely in its individual capacity, hereby waives
any rights it may have in such individual capacity to the Collateral
Account and all rights and interest therein, including, without
limitation, any such rights arising through counterclaim, defense,
recoupment, charge, lien or right of set-off. The Trustee shall not have
any liability for any loss suffered as a result of any investment made as
provided above, any liquidation of any such investment prior to its
maturity, or the failure of any authorized person of the Company to give
the Trustee written instruction to invest or reinvest the amounts in the
Collateral Account or any earnings thereon.
(c) In order to secure the full and punctual payment and
performance of the Company's obligation to offer to purchase Notes in the
event the Cherokee Acquisition is not consummated on or prior to the
Special Offer Notice Date, the Company hereby grants to the Trustee, for
the benefit of the Holders, a continuing security interest in and to all
checks described in Section 4.18(a), the Collateral Account and all Cash
and Cash Equivalents held therein and credited thereto (such amounts
collectively, the "Trust Funds"), whether now owned or existing or
hereafter acquired or arising. The Trustee shall have no obligation to
file any financing statement or otherwise take any action to maintain or
perfect any such security interest.
(d) The Trustee shall hold the Trust Funds, for the
benefit of the Holders, until the earliest to occur of:
(A) (x) the date of consummation of the Cherokee
Acquisition as specified in an Officers' Certificate from the
Company to the Trustee (1) stating that the Cherokee Acquisition
is to be consummated on a date specified therein, which shall be
at least two Business Days (or such shorter period as the Company
and the Trustee shall mutually agree) after the date of such
Officers' Certificate, (2) stating that such consummation will
be, in all material respects, in accordance with the terms and
conditions described in the Prospectus, and (3) requesting the
Trustee to release the Trust Funds on the date of such
consummation to the order of the Company or its assignee for
application to the concurrent consummation of the Cherokee
Acquisition; and (y) receipt by the Trustee of an Opinion of
Counsel to the effect that all conditions precedent described in
the preceding clause (x) have been satisfied; or
(B) the Special Offer Purchase Date, as specified in an
Officers' Certificate from the Company to the Trustee in
accordance with Section 4.12(c).
(e) On the date of consummation of the Cherokee
Acquisition, and following such acquisition, the Holders' security
interest in the Collateral Account shall terminate and the Trustee shall
release the Trust Funds in immediately available funds to the order of
the Company or its assigns, as specified in the Officers' Certificate
delivered pursuant to Section 4.18(d)(A).
(f) On the Special Offer Purchase Date as specified in an
Officers' Certificate delivered pursuant to Section 4.12(c), the Trustee
shall apply the Trust Funds in accordance with Section 4.12(d) and the
Holders' security interest in the Collateral Account shall terminate on
and as of such Special Offer Purchase Date.
(g) Any amounts remaining in the Collateral Account on the
Special Offer Purchase Date after application of the Trust Funds as
specified in Section 4.18(f) shall be paid by the Trustee to the Company.
(h) The Company will comply with Sections 314(b) and
314(d) of the TIA, as applicable, including, without limitation,
providing an Opinion of Counsel with respect to Section 3.14(b) and the
certificates or opinions of counsel with respect to Section 3.14(d), in
connection with the deposit and release of the Trust Funds.
SECTION 4.19. Limitation on Transactions with Interested Persons.
The Company will not, and will not permit any of its
Subsidiaries to, directly or indirectly, enter into or suffer to exist
any transaction or series of related transactions (including, without
limitation, the sale, purchase, exchange or lease of assets, property or
services) with any Affiliate of the Company or any beneficial owner of
five percent or more of any class of Capital Stock of the Company or any
Subsidiary of the Company or any officer or director of the foregoing
(each, an "Interested Person") unless (i) such transaction or series of
transactions is on terms that are no less favorable to the Company or
such Subsidiary, as the case may be, than would be available in a
comparable transaction in arm's-length dealings with an unrelated third
party, and (ii) (a) with respect to any transaction or series of
transactions involving aggregate payments in excess of $100,000, the
Company delivers an Officers' Certificate to the Trustee certifying that
such transaction or series of related transactions complies with clause
(i) above and such transaction or series of related transactions has been
approved by a majority of the members of the Board of Directors of the
Company (and approved by a majority of the Independent Directors or, in
the event there is only one Independent Director, by such Independent
Director), and (b) with respect to any transaction or series of
transactions involving aggregate payments in excess of $2 million, the
Company delivers to the Trustee an opinion to the effect that such
transaction or series of transactions is fair to the Company or such
Subsidiary from a financial point of view issued by an investment banking
firm of national standing. Notwithstanding the foregoing, this provision
will not apply to (i) employment agreements or compensation or employee
benefit arrangements with (including, without limitation, any stock
options granted to) any officer, director or employee of the Company
entered into in the ordinary course of business (including customary
benefits thereunder), (ii) any transaction entered into by or among the
Company or any Subsidiary Guarantor and one or more Subsidiary
Guarantors, (iii) transactions pursuant to agreements existing on the
Issue Date, including, without limitation, the Credit Facility and (iv)
loans or advances to officers of the Company for bona fide business
purposes of the Company in the ordinary course of business not in the
excess of $500,000 in the aggregate at any one time outstanding.
SECTION 4.20. Limitation on Lines of Business.
The Company will not, and will not permit any Subsidiary
of the Company to, engage in or conduct any business other than the
ownership and operation of public pay telephones and lines of business
integral or ancillary thereto; provided, that, the primary business of
the Company and its Subsidiaries shall continue to be the ownership and
operation of public pay telephones.
SECTION 4.21. Limitation on Liens.
The Company will not, and will not permit any Subsidiary
of the Company to, directly or indirectly, create, incur, assume or
suffer to exist any Lien (other than Permitted Liens) on any asset now
owned or hereafter acquired, or any income or profits therefrom or assign
or convey any right to receive income therefrom to secure any
Indebtedness unless simultaneously therewith (a) if the Lien is created
by the Company, the Notes and (b) if the Lien is created by a Subsidiary
of the Company, the Subsidiary Guarantees are, in each case, secured
equally and ratably, in the case of Liens securing Indebtedness that is
not Subordinated Debt, and on a senior priority basis, in the case of
Liens securing Subordinated Debt.
ARTICLE V
SUCCESSORS
SECTION 5.01. Merger, Consolidation and Sale of Assets.
(a) The Company shall not consolidate or merge with or
into (whether or not the Company is the Surviving Person), or, directly
or indirectly through one or more Subsidiaries, sell, assign, transfer,
lease, convey or otherwise dispose of all or substantially all of its
properties or assets in one or more related transactions, to another
Person or Persons (other than a Subsidiary Guarantor) unless (i) the
Surviving Person is a corporation organized or existing under the laws of
the United States, any state thereof or the District of Columbia; (ii)
the Surviving Person (if other than the Company) assumes all the
obligations of the Company under this Indenture and the Notes pursuant to
a supplemental indenture in a form reasonably satisfactory to the
Trustee; (iii) at the time of and immediately after such Disposition, no
Default or Event of Default shall have occurred and be continuing; and
(iv) the Surviving Person will (A) have Consolidated Net Worth
(immediately after giving effect to the Disposition on a pro forma basis)
equal to or greater than the Consolidated Net Worth of the Company
immediately preceding the transaction, and (B) at the time of such
Disposition and after giving pro forma effect thereto, the Surviving
Person would be permitted to issue at least $1.00 of additional
Indebtedness pursuant to Section 4.07(a).
(b) Prior to the consummation of any proposed Disposition,
merger or consolidation of the Company or a Subsidiary Guarantor or the
sale of all or substantially all of the assets of the Company or a
Subsidiary Guarantor (other than a Disposition by the Company to a
Subsidiary Guarantee or by a Subsidiary Guarantor to the Company or
another Subsidiary Guarantor or a merger or consolidation of a Subsidiary
Guarantor with, and involving only, the Company or another Subsidiary
Guarantor), the Company shall deliver to the Trustee an Officers'
Certificate stating that such transaction complies with Article V or
Section 10.01(e), as the case may be, of this Indenture and an Opinion of
Counsel stating that such transaction and the supplemental indenture, if
required, comply with Article V or Section 10.01(e), as the case may be,
of this Indenture.
SECTION 5.02. Surviving Person Substituted.
In the event of any transaction (other than a lease)
described in and complying with the conditions listed in Section 5.01(a)
in which the Company or the Subsidiary Guarantor, as the case may be, is
not the Surviving Person and the Surviving Person is to assume all the
obligations of the Company or the Subsidiary Guarantor under the Notes,
the Subsidiary Guarantee, as applicable, and this Indenture pursuant to a
supplemental indenture, such Surviving Person shall succeed to, and be
substituted for, and may exercise every right and power of, the Company
or the Subsidiary Guarantor, and the Company or the Subsidiary Guarantor
would be discharged from its obligations under this Indenture, the Notes
or its Subsidiary Guarantee, as the case may be, provided, that solely
for the purpose of calculating amounts described in clause (iii) of
Section 4.05(a), any such Surviving Person shall only be deemed to have
succeeded to and be substituted for the Company with respect to the
period subsequent to the effective time of such transaction (and the
Company (before giving effect to such transaction) shall be deemed to be
the "Company" for such purposes for all prior periods).
ARTICLE VI
DEFAULTS AND REMEDIES
SECTION 6.01. Events of Default.
(a) Each of the following constitutes an "Event of
Default":
(i) a default for 30 days in the payment when due of
interest on any Note (whether or not prohibited by the
subordination provisions of this Indenture);
(ii) a default in the payment when due of principal on
any Note (whether or not prohibited by the subordination
provisions of this Indenture), whether upon maturity,
acceleration, optional or mandatory redemption, required
repurchase or otherwise;
(iii) failure to perform or comply with any covenant,
agreement or warranty in this Indenture (other than the defaults
specified in clauses (i) and (ii) above) which failure continues
for 30 days after written notice thereof has been given to the
Company by the Trustee or to the Company and the Trustee by the
Holders of at least 25% in aggregate principal amount of the then
outstanding Notes;
(iv) except as permitted by this Indenture, any
Subsidiary Guarantee shall for any reason cease to be, or be
asserted in writing by any Subsidiary Guarantor or the Company
not to be, in full force and effect and enforceable in accordance
with its terms;
(v) the occurrence of one or more defaults under any
agreements, indentures or instruments under which the Company or
any Subsidiary of the Company then has outstanding Indebtedness
in excess of $5 million in the aggregate and, if not already
matured at its final maturity in accordance with its terms, such
Indebtedness shall have been accelerated;
(vi) one or more judgments, orders or decrees for the
payment of money in excess of $5 million either individually or
in the aggregate shall be entered against the Company or any
Subsidiary of the Company or any of their respective properties
and which judgments, orders or decrees are not paid, discharged,
bonded or stayed for a period of 60 days after their entry;
(vii) any holder or holders of at least $5 million in
aggregate principal amount of Indebtedness of the Company or any
Subsidiary of the Company after a default under such
Indebtedness, (a) shall notify the Company or the Trustee of the
intended sale or disposition of any assets of the Company or any
Subsidiary of the Company with an aggregate fair market value (as
determined in good faith by the Board of Directors, which
determination shall be evidenced by a board resolution),
individually or in the aggregate, of at least $5 million that
have been pledged to or for the benefit of such holder or holders
to secure such Indebtedness or (b) shall commence proceedings, or
take any action (including by way of set-off), to retain in
satisfaction of such Indebtedness or to collect on, seize,
dispose of or apply in satisfaction of such Indebtedness, such
assets of the Company or any Subsidiary of the Company (including
funds on deposit or held pursuant to lock-box and other similar
arrangements);
(viii) there shall have been the entry by a court of
competent jurisdiction of (a) a decree or order for relief in
respect of the Company or any Subsidiary of the Company in an
involuntary case or proceeding under any applicable Bankruptcy
Law or (b) a decree or order adjudging the Company or any
Subsidiary of the Company bankrupt or insolvent, or seeking
reorganization, arrangement, adjustment or composition of or in
respect of the Company or any Subsidiary of the Company under any
applicable federal or state law, or appointing a custodian,
receiver, liquidator, assignee, trustee, sequestrator (or other
similar official) of the Company or any Subsidiary of the Company
or of any substantial part of their respective properties, or
ordering the winding up or liquidation of their affairs, and any
such decree or order for relief shall continue to be in effect,
or any such other decree or order shall be unstayed and in
effect, for a period of 60 days; or
(ix) (a) the Company or any Subsidiary of the Company
commences a voluntary case or proceeding under any applicable
Bankruptcy Law or any other case or proceeding to be adjudicated
bankrupt or insolvent, (b) the Company or any Subsidiary of the
Company consents to the entry of a decree or order for relief in
respect of the Company or such Subsidiary of the Company in an
involuntary case or proceeding under any applicable Bankruptcy
Law or to the commencement of any bankruptcy or insolvency case
or proceeding against it, (c) the Company or any Subsidiary of
the Company files a petition or answer or consent seeking
reorganization or relief under any applicable federal or state
law, (d) the Company or any Subsidiary of the Company (x)
consents to the filing of such petition or the appointment of or
taking possession by, a custodian, receiver, liquidator,
assignee, trustee, sequestrator or other similar official of the
Company or such Subsidiary of the Company or of any substantial
part of their respective property, (y) makes an assignment for
the benefit of creditors or (z) admits in writing its inability
to pay its debts generally as they become due or (e) the Company
or any Subsidiary of the Company takes any corporate action in
furtherance of any such actions in this paragraph (ix).
(b) Any notice of default delivered to the Company by the
Trustee or by Holders of Notes with a copy to the Trustee must specify
the Default, demand that it be remedied and state that the notice is a
"Notice of Default."
SECTION 6.02. Acceleration.
If any Event of Default (other than an Event of Default
specified under Section 6.01(a)(viii) or (ix) with respect to the Company
or any Subsidiary Guarantor) occurs and is continuing, the Trustee or the
Holders of at least 25% in aggregate principal amount of the then
outstanding Notes may, and the Trustee at the request of such Holders
shall, declare all the Notes to be due and payable immediately. In the
case of an Event of Default arising from the events specified in Sections
6.01(a)(viii) or (ix) with respect to the Company or any Subsidiary
Guarantor, the principal of, premium, if any, and any accrued and unpaid
interest on all outstanding Notes shall ipso facto become immediately due
and payable without further action or notice.
SECTION 6.03. Other Remedies.
If an Event of Default occurs and is continuing, the
Trustee may pursue any available remedy to collect the payment of
principal of, or premium, if any, or interest on, the Notes or to enforce
the performance of any provision of the Notes or this Indenture. 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 Holder 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. All
remedies are cumulative to the extent permitted by law.
SECTION 6.04. Waiver of Past Defaults.
The Holders of a majority in aggregate principal amount of
the Notes then outstanding by notice to the Trustee may on behalf of the
Holders of all of the Notes waive any existing Default or Event of
Default and its consequences under this Indenture except (i) a continuing
Default or Event of Default in the payment of the principal of, or
premium, if any, or interest on, the Notes (which may only be waived with
the consent of each Holder of Notes affected), or (ii) in respect of a
covenant or provision which under this Indenture cannot be modified or
amended without the consent of each Holder of Notes affected. Subject to
certain limitations, holders of a majority in principal amount of the
then outstanding Notes may direct the Trustee in its exercise of any
trust or power. The Trustee may withhold from holders of the Notes notice
of any continuing Default or Event of Default (except a Default or Event
of Default relating to the payment of principal, premium or interest) if
it determines that withholding notice is in their interest.
SECTION 6.05. Control by Majority of Holders.
Subject to Section 7.01(e), the Holders of a majority in
aggregate principal amount of the then outstanding Notes may direct the
time, method and place of conducting any proceeding for any remedy
available to the Trustee or exercising any trust or power conferred on it
by this Indenture. However, the Trustee may (i) refuse to follow any
direction that conflicts with law or this Indenture, that the Trustee
determines may be unduly prejudicial to the rights of other Holders, or
would involve the Trustee in personal liability or (ii) take any
additional actions deemed proper by the Trustee that is not inconsistent
with such direction.
SECTION 6.06. Limitation of Suits by Holders.
A Holder may pursue a remedy with respect to this
Indenture or the Notes only if: (1) the Holder gives to the Trustee
notice of a continuing Event of Default; (2) the Holders of at least 25%
in principal amount of the then outstanding Notes make a request to the
Trustee to pursue the remedy; (3) such Holder or Holders offer to the
Trustee indemnity satisfactory to the Trustee against any loss, liability
or expense; (4) the Trustee does not comply with the request within 60
days after receipt of the request and the offer of indemnity; and (5)
during such 60-day period the Holders of a majority in aggregate
principal amount of the then outstanding Notes do not give the Trustee a
direction inconsistent with the request. A Holder may not use this
Indenture to prejudice the rights of another Holder or to obtain a
preference or priority over another Holder. Holders of the Notes may not
enforce this Indenture, except as provided herein.
SECTION 6.07. Rights of Holders To Receive Payment.
Notwithstanding any other provision of this Indenture, the
right of any Holder to receive payment of principal of, and premium, if
any, and interest on, a Note, on or after a respective due date expressed
in the Note, or to bring suit for the enforcement of any such payment on
or after such respective date, shall not be impaired or affected without
the consent of the Holder.
SECTION 6.08. Collection Suit by Trustee.
If an Event of Default specified in Section 6.01(a)(i) or
(a)(ii) occurs and is continuing, the Trustee is authorized to recover
judgment in its own name and as trustee of an express trust against the
Company for (i) the principal, premium, if any, and interest remaining
unpaid on the Notes, (ii) interest on overdue principal and premium, if
any, and, to the extent lawful, interest, and (iii) such further amount
as shall be sufficient to cover the costs and expenses of collection,
including the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel ("Trustee Expenses").
SECTION 6.09. Trustee May File Proofs of Claim.
The Trustee may file such proofs of claim and other papers
or documents as may be necessary or advisable to have the claims of the
Trustee (including any claim for Trustee Expenses and for amounts due
under Section 7.07) and the Holders allowed in any Insolvency or
Liquidation Proceeding relative to the Company (or any other obligor upon
the Notes), its creditors or its property and shall be entitled and
empowered to collect, receive and distribute to Holders any money or
other property payable or deliverable on any such claims and each Holder
authorizes any Custodian in any such Insolvency or Liquidation Proceeding
to make such payments to the Trustee, and if the Trustee shall consent to
the making of such payments directly to the Holders any such Custodian is
hereby authorized to make such payments directly to the Holders, and to
pay to the Trustee any amount due to it hereunder for Trustee Expenses,
and any other amounts due the Trustee under Section 7.07; provided,
however, that the Trustee shall not be authorized to (i) consent to,
accept or adopt on behalf of any Holder any plan of reorganization,
arrangement, adjustment or composition affecting the Notes or the rights
of any Holder, or (ii) vote in respect of the claim of any Holder in any
such Insolvency or Liquidation Proceeding. To the extent that the payment
of any such Trustee Expenses, and any other amounts due the Trustee under
Section 7.07 out of the estate in any such proceeding, shall be denied
for any reason, payment of the same shall be secured by a Lien on, and
shall be paid out of, any and all distributions, dividends, money,
securities and other properties which the Holders may be entitled to
receive in such proceeding, whether in liquidation or under any plan of
reorganization or arrangement or otherwise.
SECTION 6.10. Priorities.
If the Trustee collects any money pursuant to this Article
VI, it shall pay out the money in the following order:
First: to the Trustee for Trustee Expenses for amounts
due under Section 7.07;
Second: to Holders for amounts due and unpaid on the
Notes for principal, premium, if any, and
interest, ratably, without preference or priority
of any kind, according to the amounts due and
payable on the Notes for principal, premium, if
any, and interest, respectively; and
Third: to the Company 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 Holders.
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 a Trustee, a court in its discretion may
require the filing by any party litigant in the suit of an undertaking to
pay the costs of the suit, and the court in its discretion may assess
reasonable costs, including reasonable attorneys' fees, against any party
litigant in the suit, having due regard to the merits and good faith of
the claims or defenses made by the party litigant. This Section 6.11 does
not apply to a suit by the Trustee, a suit by a Holder pursuant to
Section 6.07, or a suit by Holders of more than 10% in principal amount
of the then outstanding Notes.
ARTICLE VII
TRUSTEE
SECTION 7.01. Duties of Trustee.
(a) If an Event of Default occurs (and has not been cured)
the Trustee shall (i) exercise the rights and powers vested in it by this
Indenture, and (ii) use the same degree of care and skill in exercising
such rights and powers as a prudent man would exercise or use under the
circumstances in the conduct of his own affairs. The Trustee shall not be
charged with knowledge of any default or Event of Default unless either
(1) a Trust Officer of the Trustee shall have actual knowledge 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 any Holder or by
the Company or any obligor on the Notes.
(b) Except during the continuance of an Event of Default:
(i) the Trustee's duties shall be determined solely by the express
provisions of this Indenture and the Trustee need perform only those
duties that are specifically set forth in this Indenture and no others,
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, the Trustee shall examine the certificates and
opinions to determine whether they conform to this Indenture's
requirements.
(c) The Trustee shall 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 Section 7.01(c) does not limit
the effect of Section 7.01(b); (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 it receives pursuant to Section 6.02, 6.04 or 6.05.
(d) Every provision of this Indenture that in any way
relates to the Trustee shall be subject to this Section 7.01.
(e) No provision of this Indenture shall require the
Trustee to expend or risk its own funds or incur any liability. The
Trustee shall be under no obligation to exercise any of its rights and
powers under this Indenture at the request of any Holders unless such
Holders shall have offered to the Trustee security and indemnity
satisfactory to it against any loss, liability or expense.
(f) The Trustee shall not be liable for interest on any
money received by it except as it may agree in writing with the Company.
Except as specified in Section 4.18 with respect to the Trust Funds,
money held in trust by the Trustee need not be segregated from other
funds except to the extent required by law.
SECTION 7.02. Rights of Trustee.
(a) The Trustee may rely, and shall be fully protected in
acting or refraining from acting, on any document it believes in good
faith 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 any
such document, but the Trustee, in its discretion, may make such further
inquiry or investigation into such facts or matter as it may see fit,
and, if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and
premises of the Company, personally or by agent or attorney.
(b) Before the Trustee acts or refrains from acting, it
may require an Officers' 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 such Officers' Certificate or Opinion of
Counsel; provided that such action or omission does not constitute gross
negligence. The Trustee may consult with counsel and advice of such
counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it under this Indenture in good faith and in reliance on such
advice or opinion.
(c) The Trustee may act through its attorneys and 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 in good faith that it believes to be authorized or within
its rights or powers.
(e) Unless otherwise specifically provided in this
Indenture, any demand, request, direction or notice from the Company
shall be sufficient if signed by an Officer of the Company.
SECTION 7.03. 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
Company or any of its Affiliates with the same rights it would have if it
were not Trustee. However, if the Trustee acquires any conflicting
interest it must eliminate such conflict within 90 days, apply to the
Commission for permission to continue as Trustee, or resign. Each Agent
shall have the same rights as the Trustee under this Section 7.03.
SECTION 7.04. Trustee's Disclaimer.
The Trustee shall not be responsible for and makes no
representation as to the validity or adequacy of this Indenture, the
Notes or the Prospectus; it shall not be accountable for the Company's
use of the proceeds from the Notes or for any money paid to the Company
or upon the Company's direction under any provisions of this Indenture;
it shall not be responsible for the use or application of any money that
any Paying Agent other than the Trustee receives; and, it shall not be
responsible for any statement or recital in this Indenture or any
statement in the Notes or any other document executed in connection with
the sale of the Notes or pursuant to this Indenture other than its
certificate of authentication.
SECTION 7.05. Notice to Holders of Defaults and Events of Default.
If a Default or Event of Default occurs and is continuing
and if it is known to the Trustee, the Trustee shall mail to Holders a
notice of the Default or Event of Default within 90 days after it occurs.
Except in the case of a Default or Event of Default in payment on any
Note (including any failure to redeem Notes called for redemption or any
failure to purchase Notes tendered pursuant to an Offer that are required
to be purchased by the terms of this Indenture), the Trustee may withhold
the notice if and so long as the board of directors, the executive
committee or a committee of its Trust Officers determines in good faith
that withholding such notice is in the Holders' interests.
SECTION 7.06. Reports by Trustee to Holders.
On or before June 15 in each year following the date
hereof, so long as any Notes are outstanding hereunder, the Trustee shall
mail to Holders a brief report dated as of such reporting date that
complies with Section 313(a) of the TIA (but if no event described in
Section 313(a) of the TIA has occurred within the twelve months preceding
the reporting date, no report need be transmitted). The Trustee also
shall comply with Section 313(b)(2) of the TIA. The Trustee shall also
transmit by mail all reports as required by Section 313(c) of the TIA.
Within 90 days after any Special Offer, or after the
consummation of the Cherokee Acquisition, if applicable, the Trustee
shall mail to Holders a brief report with respect to the release of the
Trust Funds that complies with Section 313(b) of the TIA.
A copy of each report at the time of its mailing to
Holders shall be filed with the Commission and each stock exchange, if
any, on which the Notes are listed. The Company shall notify the Trustee
when the Notes are listed on any stock exchange.
SECTION 7.07. Compensation and Indemnity.
The Company shall pay to the Trustee from time to time
reasonable compensation for its services hereunder, as mutually agreed
upon by the Company and the Trustee. The Trustee's compensation shall not
be limited by any law on compensation of a trustee of an express trust.
The Company shall reimburse the Trustee upon request for all reasonable
disbursements, advances and expenses it incurs or makes in addition to
the compensation for its services. Such expenses shall include the
reasonable compensation, disbursements and expenses of the Trustee's
agents and counsel.
The Company shall indemnify the Trustee and each of its
directors, officers, employees, agents, representatives and counsel
against any and all losses, liabilities or expenses the Trustee incurs
arising out of or in connection with the acceptance or administration of
its duties under this Indenture, including, without limitation, the
reasonable costs and expenses of defending itself against any claim in
liability in connection with the exercise or performance of any of its
rights, powers or duties under this Indenture, except as set forth below.
The Trustee shall notify the Company promptly of any claim for which it
may seek indemnity; provided, however, that failure by the Trustee to
provide the Company with any such notice shall not relieve the Company of
any of its obligations under this Section 7.07. The Trustee shall
cooperate in the defense of any such claim. The Trustee may have separate
counsel and the Company shall pay the reasonable fees and expenses of
such counsel. The Company need not pay for any settlement made without
its consent, which consent shall not be unreasonably withheld.
The Company's obligations under this Section 7.07 shall
survive the resignation or removal of the Trustee, satisfaction and
discharge of this Indenture or termination of this Indenture. The Company
need not reimburse any expense or indemnify against any loss or liability
the Trustee incurs as a result of its negligence or willful misconduct.
To secure payment of the Company's obligations under this
Section 7.07, the Trustee shall have a Lien prior to the Notes on all
money or property the Trustee holds or collects, except the Trust Funds
and any other funds from time to time held in trust or as security to pay
principal of, and premium, if any, and interest on, particular Notes.
Such Lien shall survive the resignation or removal of the Trustee, the
satisfaction and discharge of this Indenture or the termination of this
Indenture.
When the Trustee incurs expenses or renders services after
an Event of Default specified in Section 6.01(a)(viii) or (ix) occurs,
the expenses and the compensation for the services (including the fees
and expenses of its agents and counsel) are intended to constitute
administrative expenses under any Bankruptcy Law without any need to
demonstrate substantial contribution under Bankruptcy Law.
SECTION 7.08. Replacement of Trustee.
A resignation or removal of the Trustee and appointment of
a successor Trustee shall become effective only upon the successor
Trustee's acceptance of appointment as provided in this Section 7.08.
The Trustee may resign and be discharged from the trust
hereby created by so notifying the Company. The Holders of a majority in
aggregate principal amount of the then outstanding Notes may remove the
Trustee by so notifying the Trustee and the Company. The Company may
remove the Trustee if: (i) the Trustee fails to comply with Section 7.10;
(ii) the Trustee is adjudged a bankrupt or an insolvent or an order for
relief is entered with respect to the Trustee under any Bankruptcy Law;
(iii) a Custodian or public officer takes charge of the Trustee or its
property; or (iv) the Trustee becomes incapable of performing the
services of the Trustee hereunder.
If the Trustee resigns or is removed or if a vacancy
exists in the office of Trustee for any reason, the Company shall
promptly appoint a successor Trustee; provided that the Holders of a
majority in aggregate principal amount of the then outstanding Notes may
appoint a successor Trustee to replace any successor Trustee appointed by
Company.
If a successor Trustee does not take office within 60 days
after the retiring Trustee resigns or is removed, the retiring Trustee,
the Company or the Holders of at least 10% in principal amount of the
then outstanding 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
Holder may petition any court of competent jurisdiction for the removal
of the Trustee and the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of
its appointment to the retiring Trustee and to the Company. Thereupon,
the resignation or removal of the retiring Trustee shall become effective
and the successor Trustee shall have all the rights, powers and duties of
the Trustee under this Indenture. The successor Trustee shall mail a
notice of its appointment to Holders. The retiring Trustee shall promptly
transfer all property it holds as Trustee to the successor Trustee;
provided that all sums owing to the retiring Trustee hereunder have been
paid. Notwithstanding replacement of the Trustee pursuant to this Section
7.08, the Company's obligations under Section 7.07 shall continue for the
retiring Trustee's benefit with respect to expenses and liabilities
relating to the retiring Trustee's activities prior to being replaced.
SECTION 7.09. Successor Trustee by Merger, Etc.
If the Trustee consolidates, merges or converts into, or
transfers all or substantially all of its corporate trust business to
another corporation, the successor corporation without any further act
shall be the successor Trustee.
SECTION 7.10. Eligibility; Disqualification.
The Trustee shall at all times (i) be a corporation
organized and doing business under the laws of the United States of
America, of any state thereof, or the District of Columbia authorized
under such laws to exercise corporate trust powers, (ii) be subject to
supervision or examination by federal or state authority, (iii) have a
combined capital and surplus of at least $100 million as set forth in its
most recently published annual report of condition, and (iv) satisfy the
requirements of Sections 310(a)(1),(2) and (5) of the TIA. The Trustee is
subject to Section 310(b) of the TIA.
SECTION 7.11. Preferential Collection of Claims Against Company.
The Trustee is subject to Section 311(a) of the TIA,
excluding any creditor relationship listed in Section 311(b) of the TIA.
A Trustee who has resigned or been removed shall be subject to Section
311(a) of the TIA to the extent indicated therein.
ARTICLE VIII
DISCHARGE OF INDENTURE
SECTION 8.01. Discharge of Liability on Notes; Defeasance.
(a) Subject to Sections 8.01(c), 8.02 and 8.06, this
Indenture shall cease to be of any further effect as to all outstanding
Notes and Subsidiary Guarantees after (i) either (a) all Notes heretofore
authenticated and delivered (other than Notes replaced pursuant to
Section 2.07) have been delivered to the Trustee for cancellation or (b)
all Notes not previously delivered for cancellation have become due and
payable and the Company has irrevocably deposited or caused to be
deposited with the Trustee an amount in United States dollars sufficient
to pay and discharge the entire indebtedness on such Notes not previously
delivered to the Trustee for cancellation, for the principal of, premium,
if any, and interest to the date of repayment, (ii) the Company has paid
or caused to be paid all other sums payable under this Indenture and
(iii) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel each stating that all conditions precedent
under this Indenture relating to the satisfaction and discharge of this
Indenture have been complied with.
(b) Subject to Sections 8.01(c), 8.02, and 8.06, the
Company at any time may terminate (i) all its obligations under this
Indenture and the Notes ("Legal Defeasance Option"), or (ii) its
obligations under Sections 4.02, 4.03, 4.05, 4.06, 4.07, 4.08, 4.09,
4.11, 4.12, 4.13, 4.14, 4.15, 4.16, 4.17, 4.18 and Article V ("Covenant
Defeasance Option"). The Company may exercise its Legal Defeasance Option
notwithstanding its prior exercise of its Covenant Defeasance Option.
If the Company exercises its Legal Defeasance Option,
payment of the Notes may not be accelerated because of an Event of
Default. If the Company exercises its Covenant Defeasance Option, payment
of the Notes may not be accelerated because of an Event of Default
specified in Section 6.01(a)(iii).
Upon satisfaction of the conditions set forth in Section
8.02 and upon the Company's request (and at the Company's expense), the
Trustee shall acknowledge in writing the discharge of those obligations
that the Company has terminated.
(c) Notwithstanding Sections 8.01(a) and (b), the
Company's obligations under Sections 2.03, 2.04, 2.05, 2.06, 2.07, 4.01,
4.04, 4.10, 7.07, 7.08, 8.04, 8.05, and 8.06, and the obligations of the
Trustee and the Paying Agent under Section 8.04 shall survive until the
Notes have been paid in full. Thereafter, the Company's obligations under
Sections 7.07 and 8.05 and the obligations of the Company, Trustee and
Paying Agent under Section 8.04 shall survive.
SECTION 8.02. Conditions to Defeasance.
In order to exercise either its Legal Defeasance Option
and give effect thereto ("Legal Defeasance") or its Covenant Defeasance
Option and give effect thereto ("Covenant Defeasance"), (i) the Company
shall irrevocably deposit with the Trustee, as trust funds in trust, for
the benefit of the Holders, cash in United States dollars, U.S.
Government Obligations, or a combination thereof, maturing as to
principal and interest in such amounts as will be sufficient, without
consideration of any reinvestment of such interest, in the opinion of a
nationally recognized firm of independent public accountants or a
nationally recognized investment banking firm, to pay and discharge the
principal of, premium, if any, and interest on the outstanding Notes on
the stated maturity of such principal or installment of principal or
interest; (ii) in the case of Legal Defeasance, the Company shall have
delivered to the Trustee an Opinion of Counsel confirming that (A) the
Company has received from, or there has been published by, the Internal
Revenue Service a ruling or (B) since the date of this 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 Holders will not recognize income, gain or loss for
federal income tax purposes as a result of such Legal 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 Legal
Defeasance had not occurred; (iii) in the case of Covenant Defeasance,
the Company shall have delivered to the Trustee an Opinion of Counsel
confirming that the Holders will not recognize income, gain or loss for
federal income tax purposes as a result of such Covenant Defeasance and
will be subject to federal income tax on the same amounts, in the same
manner and at the same times as would have been the case if such Covenant
Defeasance had not occurred; (iv) no Default or Event of Default shall
have occurred and be continuing on the date of such deposit or insofar as
clauses (viii) and (ix) under Section 6.01 are concerned, at any time
during the period ending on the 91st day after the date of deposit; (v)
such Legal Defeasance or Covenant Defeasance shall not result in a breach
or violation of, or constitute a Default under, this Indenture or any
other material agreement or instrument to which the Company is a party or
by which it is bound; (vi) the Company shall have delivered to the
Trustee an Opinion of Counsel to the effect that (A) the trust funds will
not be subject to any rights of holders of Indebtedness of the Company or
any Subsidiary Guarantor, including, without limitation, those arising
under this Indenture, after the 91st day following the deposit and (B)
after the 91st day following the deposit, the trust funds will not be
subject to the effect of any applicable bankruptcy, insolvency,
reorganization or similar laws affecting creditors' rights generally;
(vii) the Company shall have delivered to the Trustee an Officers'
Certificate stating that the deposit was not made by the Company with the
intent of preferring the Holders of the Notes over the other creditors
of the Company or with the intent of defeating, hindering, delaying or
defrauding creditors of the Company or others; (viii) no event or
condition shall exist that would prevent the Company from making payments
of the principal of, premium, if any, and interest on the Notes on the
date of such deposit or at any time ending on the 91st day after the date
of such deposit; and (ix) the Company shall have delivered to the Trustee
an Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent provided for relating to either the Legal Defeasance
or the Covenant Defeasance, as the case may be, have been complied with.
SECTION 8.03. Application of Trust Money.
The Trustee or Paying Agent shall hold in trust money
and/or U.S. Government Obligations deposited with it pursuant to this
Article VIII. The Trustee or Paying Agent shall apply the deposited money
and the money from U.S. Government Obligations in accordance with this
Indenture to the payment of principal of, and premium, if any, and
interest on, the Notes.
SECTION 8.04. Repayment to Company.
After the Notes have been paid in full, the Trustee and
the Paying Agent shall promptly turn over to the Company any excess money
or securities held by them upon the written direction of the Company.
Any money deposited with the Trustee or a Paying Agent
pursuant to this Article VIII for the payment of the principal of,
premium, if any, or interest on, any Note that remains unclaimed for two
years after becoming due and payable shall be paid to the Company on its
request; and the Holder of such Note shall thereafter, as an unsecured
general creditor, look only to the Company for payment thereof, and all
liability of the Trustee or such Paying Agent with respect to such money
shall cease; provided, however, that the Trustee or such Paying Agent,
before being required to make any such repayment, shall at the expense of
the Company cause to be published once, in The New York Times and The
Wall Street Journal (national edition), notice that such money remains
unclaimed and that, after a date specified therein, which shall not be
less than 30 days from the date of such notification or publication, any
unclaimed balance of such money then remaining will be repaid to the
Company.
SECTION 8.05. Indemnity for U.S. Government Obligations.
The Company shall pay and shall indemnify the Trustee and
any Paying Agent against any tax, fee or other charge imposed on or
assessed against cash and/or U.S. Government Obligations deposited with
it pursuant to Section 4.18 or this Article VIII or imposed on or
assessed against the principal and interest received on such cash and/or
U.S. Government Obligations.
SECTION 8.06. Reinstatement.
If the Trustee or Paying Agent is unable to apply any
money or U.S. Government Obligations in accordance with this Article 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 Company'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 if the Company has made any payment of principal of, or
premium, if any, or interest on, any Notes because of the reinstatement
of its obligations under this Indenture and the Notes, the Company shall
be subrogated to the Holders' rights to receive such payment from the
money or U.S. Government Obligations held by the Trustee or Paying Agent.
ARTICLE IX
AMENDMENTS
SECTION 9.01. Amendments and Supplements Permitted
Without Consent of Holders.
(a) Notwithstanding Section 9.02, the Company, the
Subsidiary Guarantors and the Trustee may amend or supplement this
Indenture or the Notes without the consent of any Holder to: (i) cure any
ambiguity, defect or inconsistency; (ii) provide for uncertificated Notes
in addition to or in place of certificated Notes; (iii) provide for the
assumption of the Company's obligations to the Holders in the event of
any Disposition involving the Company that is permitted under Article V
in which the Company is not the Surviving Person; (iv) make any change
that would provide any additional rights or benefits to Holders or does
not adversely affect the interests of any Holder; (v) comply with the
requirements of the Commission in order to effect or maintain the
qualification of this Indenture under the TIA; or (vi) add additional
Subsidiary Guarantors pursuant to Section 4.15.
(b) Upon the Company's request, after receipt by the
Trustee of a resolution of the Board of Directors authorizing the
execution of any amended or supplemental indenture, the Trustee shall
join with the Company and the Subsidiary Guarantors in the execution of
any amended or supplemental indenture authorized or permitted by the
terms of this Indenture and to make any future appropriate agreements and
stipulations that may be contained in any such amended or supplemental
indenture, but the Trustee shall not be obligated to enter into an
amended or supplemental indenture that affects its own rights, duties, or
immunities under this Indenture or otherwise.
SECTION 9.02. Amendments and Supplements Requiring
Consent of Holders.
(a) Except as otherwise provided in Sections 6.04, 9.01(a)
and 9.02(c), this Indenture and the Notes may be amended or supplemented
with the written consent of the Holders of at least a majority in
aggregate principal amount of the then outstanding Notes (including
consents obtained in connection with a tender offer or exchange offer for
the Notes), and any existing Default or Event of Default or compliance
with any provision of this Indenture or the Notes may be waived with the
consent of Holders of at least a majority in principal amount of the then
outstanding Notes (including consents obtained in connection with a
tender offer or exchange offer for the Notes).
(b) Upon the Company's request and after receipt by the
Trustee of a resolution of the Board of Directors authorizing the
execution of any supplemental indenture, evidence of the Holders'
consent, and the documents described in Section 9.06, the Trustee shall
join with the Company and the Subsidiary Guarantors in the execution of
such amended or supplemental indenture unless such amended or
supplemental indenture affects the Trustee's own rights, duties, or
immunities under this Indenture or otherwise, in which case the Trustee
may in its discretion, but not be obligated to, enter into such amended
or supplemental indenture.
(c) No such modification or amendment may, without the
consent of the Holder of each outstanding Note affected thereby: (i)
change the stated maturity of the principal of, or any installment of
interest on, any Note, or reduce the principal amount thereof or the rate
of interest thereon or any premium payable upon the redemption thereof,
or change the coin or currency or the manner in which the principal of
any Note or any premium or the interest thereon is payable, or impair the
right to institute suit for the enforcement of any such payment after the
stated maturity thereof (or, in the case of redemption, on or after the
redemption date); (ii) extend the time for payment of interest on the
Notes; (iii) alter the redemption provisions in the Notes or this
Indenture in a manner adverse to any Holder of the Notes; (iv) amend,
change or modify the obligation of the Company to make and consummate a
Change of Control Offer in the event of a Change of Control or modify any
of the provisions or definitions with respect thereto; (v) reduce the
percentage in principal amount of outstanding Notes, the consent of whose
holders is required for any amended or supplemental indenture or the
consent of whose holders is required for any waiver of compliance with
any provision of this Indenture or any Default hereunder and the
consequences provided for hereunder; (vi) modify any of the provisions of
this Indenture relating to any amended or supplemental indentures
requiring the consent of Holders or relating to the waiver of past
defaults or relating to the waiver of any covenant, except to increase
the percentage of outstanding Notes required for such actions or to
provide that any other provision of this Indenture cannot be modified or
waived without the consent of the Holder of each Note affected thereby;
(vii) except as otherwise permitted under Section 5.01, consent to the
assignment or transfer by the Company of any of its rights and
obligations under this Indenture; (viii) alter the ranking of the Notes
or the Subsidiary Guarantees in a manner adverse to holders of the Notes;
or (ix) amend, change or modify the obligation of the Company to make and
consummate a Special Offer or any of the definitions related thereto in a
manner adverse to any holder of Notes.
(d) It shall not be necessary for the consent of the
Holders under this Section 9.02 to approve the particular form of any
proposed amendment or waiver, but it shall be sufficient if such consent
approves the substance thereof. After an amendment, supplement or waiver
under this Section 9.02 becomes effective, the Company shall mail to each
Holder affected thereby a notice briefly describing the amendment,
supplement or waiver. Any failure of the Company to mail such notice, or
any defect therein, shall not, however, in any way impair or affect the
validity of any such amended or supplemental indenture or waiver.
SECTION 9.03. Compliance with TIA.
Every amendment or supplement to this Indenture or the
Notes shall be set forth in an amended supplemental indenture that
complies with the TIA as then in effect.
SECTION 9.04. Revocation and Effect of Consents.
(a) Until an amendment, supplement or waiver becomes
effective, a consent to it by a Holder is a continuing consent by the
Holder and every subsequent Holder of a Note or portion of a Note that
evidences the same Indebtedness as the consenting Holder's Note, even if
notation of the consent is not made on any Note. However, any such Holder
or subsequent Holder may revoke the consent as to his or her Note or
portion of a Note if the Trustee receives the notice of revocation before
the date on which the Trustee receives an Officers' Certificate
certifying that the Holders of the requisite principal amount of Notes
have consented to the amendment or waiver.
(b) The Company may, but shall not be obligated to, fix a
record date for the purpose of determining the Holders of Notes entitled
to consent to any amendment or waiver. If a record date is fixed, then
notwithstanding the provisions of the immediately preceding paragraph,
those Persons who were Holders of Notes at such record date (or their
duly designated proxies), and only those Persons, shall be entitled to
consent to such amendment or waiver or to revoke any consent previously
given, whether or not such Persons continue to be Holders of Notes after
such record date. No consent shall be valid or effective for more than 90
days after such record date unless consents from Holders of the principal
amount of Notes required hereunder for such amendment or waiver to be
effective shall have also been given and not revoked within such 90-day
period.
(c) After an amendment or waiver becomes effective it
shall bind every Holder, unless it is of the type described in Section
9.02(c), in which case the amendment or waiver shall only bind each
Holder that consented to it and every subsequent Holder of a Note that
evidences the same debt as the consenting Holder's Note.
SECTION 9.05. Notation on or Exchange of Notes.
The Trustee may place an appropriate notation about an
amendment, supplement or waiver on any Note thereafter authenticated. The
Company in exchange for all Notes may issue and the Trustee shall
authenticate new Notes that reflect the amendment, supplement or waiver.
Failure to make the appropriate notation or issue a new Note shall not
affect the validity and effect of such amendment, supplement or waiver.
SECTION 9.06. Trustee Protected.
The Trustee shall sign any amendment or supplemental
indenture authorized pursuant to this Article IX if the amendment does
not adversely affect the rights, duties, liabilities or immunities of the
Trustee. If it does, the Trustee may, but need not, sign it. In signing
such amendment or supplemental indenture, the Trustee shall be entitled
to receive and, subject to Section 7.01, shall be fully protected in
relying upon, an Officers' Certificate and Opinion of Counsel pursuant to
Sections 11.04 and 11.05 as conclusive evidence that such amendment or
supplemental indenture is authorized or permitted by this Indenture, that
it is not inconsistent herewith, and that it will be valid and binding
upon the Company in accordance with its terms.
ARTICLE X
SUBSIDIARY GUARANTEES
SECTION 10.01. Subsidiary Guarantees.
(a) Each Subsidiary Guarantor hereby, jointly and
severally, unconditionally guarantees, on a senior unsecured basis, to
each Holder of a Note authenticated and delivered by the Trustee that:
(i) the principal of, premium, if any, and interest on the Notes will be
promptly paid in full when due, whether at maturity, by acceleration,
redemption or otherwise, and interest on the overdue principal of and
interest on the Notes, if any, to the extent lawful, and all other
Obligations of the Company to the Holders or the Trustee under this
Indenture and the Notes will be promptly paid in full, all in accordance
with the terms of this Indenture and the Notes; and (ii) in case of any
extension of time of payment or renewal of any Notes or any of such other
Obligations, that the Notes will be promptly paid in full when due in
accordance with the terms of such extension or renewal, whether at stated
maturity, by acceleration or otherwise. In the event that the Company
fails to pay any amount guaranteed by the Subsidiary Guarantors for any
reason whatsoever, the Subsidiary Guarantors will be jointly and
severally obligated to pay such amount immediately. The Subsidiary
Guarantors hereby further agree that their Obligations under this
Indenture and the Notes shall be unconditional and absolute, regardless
of the validity, legality or enforceability of this Indenture or the
Notes, the absence of any action to enforce this Indenture or the Notes,
any waiver or consent by any Holder with respect to any provisions of
this Indenture or the Notes, any modification or amendment of, or
supplement to, this Indenture or the Notes, the recovery of any judgment
against the Company or any action to enforce any such judgment, or any
other circumstance that might otherwise constitute a legal or equitable
discharge or defense of a Subsidiary Guarantor. Each Subsidiary Guarantor
hereby waives diligence, presentment, demand of payment, filing of claims
with a court in the event of insolvency or bankruptcy of the Company, any
right to require a proceeding first against the Company, protest, notice
and all demands whatsoever and covenants that its Subsidiary Guarantee of
the Company's Obligations under this Indenture and the Notes will not be
discharged except by complete performance by the Company or another
Guarantor of such Obligations. If any Holder or the Trustee is required
by any court or otherwise to return to the Company, any Subsidiary
Guarantor or a Custodian of the Company or a Subsidiary Guarantor any
amount paid by the Company or any Subsidiary Guarantor to the Trustee or
such Holder, the Subsidiary Guarantee of the Company's Obligations under
this Indenture and the Notes by each Subsidiary Guarantor shall, to the
extent previously discharged as a result of any such payment, be
immediately reinstated and be in full force and effect. Each Subsidiary
Guarantor hereby acknowledges and agrees that, as between the Subsidiary
Guarantors, on the one hand, and the Holders and the Trustee, on the
other hand, (x) the maturity of the Company's Obligations under this
Indenture and the Notes may be accelerated as provided in Article VI for
purposes of the Subsidiary Guarantees notwithstanding any stay,
injunction or other prohibition preventing such acceleration, and (y) in
the event of any declaration of acceleration of the Company's Obligations
under this Indenture and the Notes as provided in Article VI, such
Obligations (whether or not due and payable) shall forthwith become due
and payable by the Subsidiary Guarantors for the purpose of the
Subsidiary Guarantees.
(b) Each Subsidiary Guarantor hereby waives all rights of
subrogation, contribution, reimbursement and indemnity, and all other
rights, that such Subsidiary Guarantor would have against the Company at
any time as a result of any payment in respect of its Subsidiary
Guarantee (whether contractual, under section 509 of the Bankruptcy Code,
or otherwise).
(c) Each Subsidiary Guarantor that makes or is required to
make any payment in respect of its Subsidiary Guarantee shall be entitled
to seek contribution from the other Subsidiary Guarantors to the extent
permitted by applicable law; provided that each Subsidiary Guarantor
agrees that any such claim for contribution that such Subsidiary
Guarantor may have against any other Subsidiary Guarantor shall be
subrogated to the prior payment in full in cash of all Obligations owed
to Holders under or in respect of the Notes.
(d) Upon the sale or disposition (whether by merger, stock
purchase, asset sale or otherwise) of a Subsidiary Guarantor (or
substantially all of its assets) to an entity which is not a Subsidiary
of the Company, which is otherwise in compliance with this Indenture,
such Subsidiary Guarantor shall be deemed released from all its
obligations under its Subsidiary Guarantee; provided that any such
termination shall occur only to the extent that all obligations of such
Subsidiary Guarantor under all of its guarantees of, and under all of its
pledges of assets or other security interests which secure, other
Indebtedness of the Company shall also terminate upon such release, sale
or transfer.
(e) Each Subsidiary Guarantor may consolidate with or
merge into or sell its assets to the Company or another Subsidiary
Guarantor without limitation. A Subsidiary Guarantor may consolidate with
or merge into or sell its assets to a corporation other than the Company
or another Subsidiary Guarantor (whether or not affiliated with such
Subsidiary Guarantor, but subject to the provisions described in Section
10.01(d)), provided that (a) if the Surviving Person is not the
Subsidiary Guarantor, the Surviving Person agrees to assume such
Subsidiary Guarantor's obligations under its Subsidiary Guarantee and all
its obligations under this Indenture and (b) such transaction does not
(i) violate any covenants set forth in this Indenture or (ii) result in a
Default or Event of Default under this Indenture immediately thereafter
that is continuing.
SECTION 10.02. Trustee To Include Paying Agents.
In case at any time any Paying Agent other than the
Trustee shall have been appointed by the Company, the term "Trustee" as
used in this Article X shall (unless the context shall otherwise require)
be construed as extending to and including such Paying Agent within its
meaning as fully and for all intents and purposes as if such Paying Agent
were named in this Article X in place of the Trustee.
SECTION 10.03. Limits on Subsidiary Guarantees.
Each Subsidiary Guarantor, and by its acceptance hereof
each Holder, hereby confirms that it is the intention of all such parties
that the guarantee by each Subsidiary Guarantor pursuant to its
Subsidiary Guarantee not constitute a fraudulent transfer or conveyance
for purposes of the Bankruptcy Law, the Uniform Fraudulent Conveyance
Act, the Uniform Fraudulent Transfer Act or any similar Federal or state
law. To effectuate the foregoing intention, the Holders and each
Subsidiary Guarantor hereby irrevocably agree that the obligations of
each Subsidiary Guarantor under the Subsidiary Guarantees shall be
limited to the maximum amount as will, after giving effect to all other
contingent and fixed liabilities of each Subsidiary Guarantor, result in
the obligations of each Subsidiary Guarantor under the Subsidiary
Guarantees not constituting such fraudulent transfer or conveyance.
SECTION 10.04. Execution of Subsidiary Guarantee.
To evidence its Subsidiary Guarantee set forth in this
Article X, each Subsidiary Guarantor hereby agrees to execute the
Subsidiary Guarantee in substantially the form included in Exhibit A,
which shall be endorsed on each Note ordered to be authenticated and
delivered by the Trustee. Each Subsidiary Guarantor hereby agrees that
its Subsidiary Guarantee set forth in this Article X shall remain in full
force and effect notwithstanding any failure to endorse on each Note a
notation of such Subsidiary Guarantee. Each such Subsidiary Guarantee
shall be signed on behalf of each Subsidiary Guarantor by an Officer (who
shall have been duly authorized by all requisite corporate actions), and
the delivery of such Note by the Trustee, after the authentication
thereof hereunder, shall constitute due delivery of such Subsidiary
Guarantee on behalf of such Subsidiary Guarantor. Such signatures upon
the Subsidiary Guarantee may be by manual or facsimile signature of such
Officer and may be imprinted or otherwise reproduced on the Subsidiary
Guarantee, and in case any such Officer who shall have signed the
Subsidiary Guarantee shall cease to be such Officer before the Note on
which such Subsidiary Guarantee is endorsed shall have been authenticated
and delivered by the Trustee or disposed of by the Company, such Note
nevertheless may be authenticated and delivered or disposed of as though
the person who signed the Subsidiary Guarantee had not ceased to be such
Officer of the Subsidiary Guarantor.
SECTION 10.05. Stay, Extension and Usury Laws.
Each Subsidiary Guarantor covenants (to the extent that it
may lawfully do so) that it will not at any time insist upon, plead, or
in any manner whatsoever claim or take the benefit or advantage of, any
stay, extension or usury law wherever enacted, now or at any time
hereafter in force, that would prohibit or forgive each Subsidiary
Guarantor from performing its Subsidiary Guarantee as contemplated herein
or which might affect the covenants or the performance of this Indenture
and Notes; and each such Subsidiary Guarantor (to the extent it may
lawfully do so) hereby expressly waives all benefit or advantage of any
such law, and covenants that it will not, by resort to any such law,
hinder, delay or impede the execution of any power granted to the Trustee
pursuant to this Indenture, but will suffer and permit the execution of
every such power as though no such law has been enacted.
SECTION 10.06. Payment.
A payment on account of or with respect to any Subsidiary
Guarantee shall include, without limitation, any direct or indirect
payment of principal, premium or interest with respect to or in
connection with any optional redemption or purchase provisions, any
direct or indirect payment payable by reason of any other Indebtedness or
Obligation being subordinated to the Subsidiary Guarantees, and any
direct or indirect payment or recovery on any claim as a Holder relating
to or arising out of this Indenture or any Subsidiary Guarantee, or the
issuance of any Subsidiary Guarantee, or the transactions contemplated by
this Indenture or referred to herein.
ARTICLE XI
MISCELLANEOUS
SECTION 11.01. Trust Indenture Act Controls.
If any provisions of this Indenture limits, qualifies, or
conflicts with the duties imposed by operation of Section 318(c) of the
TIA, the imposed duties shall control.
SECTION 11.02. Notices.
Any notice or communication by the Company, any Subsidiary
Guarantor or the Trustee to the other is duly given if in writing and
delivered in person, mailed by registered or certified mail, postage
prepaid, return receipt requested or delivered by telecopier or overnight
air courier guaranteeing next day delivery to the other's address:
If to the Company or to any Subsidiary Guarantor:
PhoneTel Technologies, Inc.
1127 Euclid Avenue
Suite 650
Cleveland, Ohio 44115-1601
Attention: Tammy Martin
Telephone: (216) 623-2588
Facsimile: (216) 623-2578
With a copy to:
Skadden, Arps, Slate, Meagher & Flom LLP
919 Third Avenue
New York, New York 10022
Attention: Stephen Banker
Telephone: (212) 735-3000
Facsimile: (212) 735-2000
If to the Trustee:
Marine Midland Bank
140 Broadway, 12th Floor
New York, New York 10005
Attention: Corporate Trust Administration Department
Facsimile: (212) 658-6425
The Company or the Trustee by notice to the other may
designate additional or different addresses for subsequent notices or
communications.
All notices and communications (other than those sent to
Holders) shall be deemed to have been duly given: at the time delivered
by hand, if personally delivered; the date receipt is acknowledged, if
mailed by registered or certified mail; when confirmation is received, if
telecopied; and the next Business Day after timely delivery to the
courier, if sent by overnight air courier guaranteeing next day delivery.
Any notice or communication to a Holder shall be mailed by
first-class mail to his or her address shown on the register maintained
by the Registrar. Failure to mail a notice or communication to a Holder
or any defect in it shall not affect its sufficiency with respect to
other Holders. If a notice or communication is mailed in the manner
provided above within the time prescribed, it is duly given, whether or
not the addressee receives it. If the Company mails a notice or
communication to Holders, it shall mail a copy to the Trustee and each
Agent at the same time.
SECTION 11.03. Communication by Holders with Other Holders.
Holders may communicate pursuant to Section 312(b) of the
TIA with other Holders with respect to their rights under this Indenture
or the Notes. The Company, the Trustee, the Registrar and any other
Person shall have the protection of Section 312(c) of the TIA.
SECTION 11.04. Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company to the
Trustee to take any action under this Indenture, the Company shall
furnish to the Trustee: (a) an Officers' Certificate (which shall include
the statements set forth in Section 11.05) stating that, in the opinion
of the signers, all conditions precedent and covenants, if any, provided
for in this Indenture relating to the proposed action have been complied
with; and (b) an Opinion of Counsel (which shall include the statements
set forth in Section 11.05) stating that, in the opinion of such counsel,
all such conditions precedent provided for in this Indenture relating to
the proposed action have been complied with.
SECTION 11.05. Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance
with a condition or covenant provided for in this Indenture (other than a
certificate provided pursuant to Section 314(a)(4) of the TIA) shall
include: (1) a statement that the Person making such certificate or
opinion has read such covenant or condition; (2) a brief statement as to
the nature and scope of the examination or investigation upon which the
statements or opinions contained in such certificate or opinion are
based; (3) a statement that, in the opinion of such Person, he has made
such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or
condition has been complied with; and (4) a statement as to whether, in
such Person's opinion, such condition or covenant has been complied with.
SECTION 11.06. Rules by Trustee and Agents.
The Trustee may make reasonable rules for action by or at
a meeting of Holders. The Registrar or Paying Agent may make reasonable
rules and set reasonable requirements for its functions.
SECTION 11.07. Legal Holidays.
If a payment date is a Legal Holiday, payment may be made
at that place on the next succeeding day that is not a Legal Holiday, and
no interest shall accrue for the intervening period.
SECTION 11.08. No Recourse Against Others.
No director, officer, employee, incorporator or
stockholder of the Company or any Subsidiary Guarantor shall have any
liability for any obligation of the Company or any Subsidiary Guarantor
under this Indenture, the Notes or the Subsidiary Guarantees. Each Holder
by accepting a Note (including Subsidiary Guarantees) waives and releases
such Persons from all such liability and such waiver and release is part
of the consideration for the issuance of the Notes.
SECTION 11.09. Counterparts.
This Indenture may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement.
SECTION 11.10. Initial Appointments, Compliance Certificates.
The Company initially appoints the Trustee as Paying
Agent, Registrar and authenticating agent. The first compliance
certificate to be delivered by the Company to the Trustee pursuant to
Section 4.03 shall be for the fiscal year ending on December 31, 1996.
SECTION 11.11. Governing Law.
The laws of the State of New York shall govern this
Indenture and the Notes, without regard to the conflict of laws
provisions thereof.
SECTION 11.12. No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another
indenture, loan or debt agreement of the Company or any of its
Subsidiaries, and no other indenture, loan or debt agreement may be used
to interpret this Indenture.
SECTION 11.13. Successors.
All agreements of the Company in this Indenture and the
Notes shall bind any successor of the Company. All agreements of the
Trustee in this Indenture shall bind its successor.
SECTION 11.14. Severability.
If any provision in this Indenture or in the Notes shall
be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
SECTION 11.15. No Recourse Against Others.
No director, officer, employee, incorporator, or
stockholder of the Company shall have any liability for any obligations
of the Company under the Indenture or the Notes. Each Holder by accepting
a Note waives and releases such persons from all such liability, and such
waiver and release is part of the consideration for the issuance of the
Notes.
SECTION 11.16. Table of Contents, Headings, Etc.
The Table of Contents, Cross-Reference Table, and headings
of the Articles and Sections of this Indenture have been inserted for
convenience of reference only, are not to be considered a part of this
Indenture, and shall in no way modify or restrict any of the terms or
provisions of this Indenture.
SIGNATURES
THE COMPANY:
PHONETEL TECHNOLOGIES, INC.
By: /s/ Peter Graf
Name: Peter Graf
Title: Chairman
THE SUBSIDIARY GUARANTORS:
PUBLIC TELEPHONE CORPORATION
WORLD COMMUNICATIONS, INC.
PARAMOUNT COMMUNICATION SYSTEMS, INC.
NORTHERN FLORIDA TELEPHONE CORPORATION
PAYPHONES OF AMERICA, INC.
PHONETEL CCI, INC.
For each of the above:
By: /s/ Peter Graf
Name: Peter Graf
Title: Chairman
MARINE MIDLAND BANK,
as Trustee
By: /s/ Marcia Markowski
Name: Marcia Markowski
Title: Corporate Trust Officer
Schedule I
Subsidiary Guarantors Existing on the Issue Date
Name of Subsidiary Jurisdiction of Incorporation
1. Public Telephone Corporation Indiana
2. World Communications, Inc. Missouri
3. Paramount Communication
Systems, Inc. Florida
4. Northern Florida Telephone
Corporation Florida
5. Payphones of America, Inc. Ohio
6. PhoneTel CCI, Inc. Texas
[FORM OF NOTE]
EXHIBIT A
(Face of Note)
CUSIP No. 71921HAA7
PHONETEL TECHNOLOGIES, INC.
12% Senior Note due 2006
No. 001 $125,000,000
PhoneTel Technologies, Inc., an Ohio corporation
(hereinafter called the "Company," which term includes any successor
entity under the Indenture hereinafter referred to), for value received,
hereby promises to pay to CEDE & CO. or registered assigns, the principal
sum of One Hundred and Twenty-Five Million Dollars on December 15, 2006.
Interest Payment Dates: June 15, and December 15,
commencing June 15, 1997.
Record Dates: June 1 and December 1.
Reference is hereby made to the further provisions of this
Note set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
IN WITNESS WHEREOF, the Company has caused this Note to be
signed manually or by facsimile by its duly authorized officers.
Dated: December 18, 1996
PHONETEL TECHNOLOGIES, INC.
By:
Name:
Title:
By:
Name:
Title:
CERTIFICATE OF AUTHENTICATION
This is one of the 12% Senior Notes due 2006 referred to in the within
mentioned Indenture.
MARINE MIDLAND BANK, as Trustee
By: ______________________
Authorized Signatory
(Back of Note)
12% SENIOR NOTE DUE 2006
1. Interest. PhoneTel Technologies, Inc. (the "Company")
promises to pay interest on the principal amount of this Note at the rate
and in the manner specified below. Interest on this Note will accrue at
12% per annum from the date this Note is issued until maturity and will
be payable semiannually in cash on June 15 and December 15 of each year,
or if any such day is not a Business Day on the next succeeding Business
Day (each an "Interest Payment Date"). Interest on this Note will accrue
from the most recent date on which interest has been paid or, if no
interest has been paid, from the date of original issuance; provided that
the first Interest Payment Date shall be June 15, 1997. The Company shall
pay interest on overdue principal and premium, if any, from time to time
on demand at the rate of 2% per annum in excess of the interest rate then
in effect and shall pay interest on overdue installments of interest
(without regard to any applicable grace periods) from time to time on
demand at the same rate 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. The Company will pay interest on
this Note (except defaulted interest) to the Person who is the registered
Holder of this Note at the close of business on the record date for the
next Interest Payment Date even if such Note is cancelled after such
record date and on or before such Interest Payment Date. Holders must
surrender Notes to a Paying Agent to collect principal payments on such
Notes. The Company will pay principal, premium, if any, 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 Company may pay
principal, premium, if any, and interest by check payable in such money,
and any such check may be mailed to a Holder's registered address and, in
the case of a Global Note, may pay principal, premium, if any, and
interest by wire transfer of immediately available funds to the account
specified by the Holder thereof.
3. Paying Agent and Registrar. Marine Midland Bank (the
"Trustee") will initially act as the Paying Agent and Registrar. The
Company may appoint additional paying agents or co-registrars, and change
the Paying Agent, any additional paying agent, the Registrar or any
co-registrar without prior notice to any Holder. The Company or any of
its Affiliates may act in any such capacity.
4. Indenture. The Company issued the Notes under an
Indenture, dated as of December 18, 1996 (the "Indenture"), by and among
the Company, as issuer of the Notes, each Subsidiary of the Company
existing on the Issue Date as set forth in Schedule I to the Indenture
and each of the Company's Subsidiaries which becomes a guarantor of the
Notes in compliance with the provisions set forth under Section 4.15 of
the Indenture and executes a supplemental indenture in which such
Subsidiary agrees to be bound by the terms of the Indenture as guarantors
of the Company's obligations under the Indenture and the Notes (each a
"Subsidiary Guarantor") 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 (15 U.S. Code ss.ss.
77aaa-77bbbb) as in effect on the date of the original issuance of the
Notes (the "Trust Indenture Act"). The Notes are subject to, and
qualified by, all such terms, certain of which are summarized herein, and
Holders are referred to the Indenture and the Trust Indenture Act for a
statement of such terms (all capitalized terms not defined herein shall
have the meanings assigned them in the Indenture). The Notes are
unsecured general obligations of the Company limited to $125,000,000 in
aggregate principal amount.
5. Redemption Provisions. The Notes are not redeemable at
the Company's option prior to December 15, 2001. On and after such date,
the Notes will be subject to redemption at the option of the Company, in
whole or in part, at the redemption prices (expressed as percentages of
the principal amount of the Notes) set forth below, plus accrued and
unpaid interest to the date of redemption, if redeemed during the
twelve-month period beginning on December 15 of the years indicated
below:
Year Percentage
2001......................................... 106.0%
2002......................................... 104.0%
2003......................................... 102.0%
2004 and thereafter.......................... 100.0%
Notwithstanding the foregoing, at any time prior to
December 15, 1999, the Company, at its option, may redeem from time to
time up to 40% of the aggregate principal amount of the Notes originally
issued with the net cash proceeds of one or more Equity Offerings, other
than the Concurrent Offering, at a redemption price equal to 112% of the
principal amount thereof, together with accrued and unpaid interest to
the date of redemption; provided, however, that at least $75 million in
aggregate principal amount of the Notes remains outstanding immediately
after any such redemption.
6. Mandatory Offers.
(a) Within 30 days after any Change of Control, 10
Business Days following any Asset Sale Trigger Date, or on the Special
Offer Notice Date, as the case may be, the Company shall mail a notice to
each Holder stating a number of items as set forth in Sections 4.11 (with
respect to Change of Control Offers) or 4.12 (with respect to a Special
Offer) or 4.13 (with respect to Asset Sale Offers) of the Indenture.
(b) Holders may tender all or, subject to Section 8 below,
any portion of their Notes in an Offer by completing the form below
entitled "OPTION OF HOLDER TO ELECT PURCHASE."
(c) Promptly after consummation of an Offer, (i) the
Paying Agent shall mail to each Holder of Notes or portions thereof
accepted for payment an amount equal to the purchase price for, plus any
accrued and unpaid interest on, such Notes, (ii) with respect to any
tendered Note not accepted for payment in whole or in part, the Trustee
shall return such Note to the Holder thereof, and (iii) with respect to
any Note accepted for payment in part, the Trustee shall authenticate and
mail to each such Holder a new Note equal in principal amount to the
unpurchased portion of the tendered Note.
(d) The Company will (i) announce the results of the Offer
to Holders on or as soon as practicable after the applicable purchase
date, and (ii) comply with the applicable tender offer rules, including
the requirements of Rule 14e-1 under the Securities Exchange Act of 1934,
as amended, and all other applicable securities laws and regulations in
connection with any Offer.
7. Notice of Redemption. At least 30 days but not more
than 60 days before any redemption date, the Company shall mail by first
class mail a notice of redemption to each Holder of Notes or portions
thereof that are to be redeemed.
8. Notes to Be Redeemed or Purchased. The Notes may be
redeemed or purchased in part, but only in whole multiples of $1,000
unless all Notes held by a Holder are to be redeemed or purchased. On and
after any date on which Notes are redeemed or purchased, interest ceases
to accrue on the Notes or portions thereof called for redemption or
accepted for purchase on such date.
9. Denominations, Transfer, Exchange. The Notes are in
registered form without coupons in denominations of $1,000 and integral
multiples thereof. The transfer of Notes may be registered and Notes may
be exchanged as provided in the Indenture. Holders seeking to transfer or
exchange their Notes may be required, among other things, to furnish
appropriate endorsements and transfer documents and to pay any taxes and
fees required by law or permitted by the Indenture.
Neither the Company nor the Registrar shall be required to
issue, register the transfer of or exchange any Note (i) during a period
beginning at the opening of business 15 days before the day of the
mailing of notice of any redemption from the Company and ending at the
close of business on the day the notice of redemption is sent to Holders,
(ii) selected for redemption, in whole or in part, except the unredeemed
portion of any Note being redeemed in part may be transferred or
exchanged, and (iii) during any Change of Control Offer or Special Offer
or Asset Sale Offer if such Note is tendered pursuant to such Change of
Control Offer or Special Offer or Asset Sale Offer and not withdrawn.
10. Persons Deemed Owners. The registered holder of a Note
may be treated as its owner for all purposes.
11. Amendments and Waivers.
(a) Subject to certain exceptions, the Indenture and the
Notes may be amended or supplemented with the written consent of the
Holders of at least a majority in aggregate principal amount of the then
outstanding Notes, and any existing Default or Event of Default or
compliance with any provision of the Indenture or the Notes may be waived
with the consent of the Holders of at least a majority in principal
amount of the then outstanding Notes.
(b) Notwithstanding Section 11(a) above, the Company and
the Trustee may amend or supplement the Indenture or the Notes without
the consent of any Holder to: cure any ambiguity, defect or
inconsistency; provide for uncertificated Notes in addition to or in
place of certificated Notes; provide for the assumption of the Company's
obligations to the Holders in the event of any Disposition involving the
Company that is permitted under Article V and in which the Company is not
the Surviving Person; make any change that would provide any additional
rights or benefits to Holders or not adversely affect the interests of
any Holder; comply with the requirements of the Commission in order to
effect or maintain the qualification of the Indenture under the Trust
Indenture Act; or provide for additional Subsidiary Guarantors.
(c) Certain provisions of the Indenture cannot be amended,
supplemented or waived without the consent of each Holder of Notes
affected.
12. Defaults and Remedies. Events of Default include:
default for 30 days in the payment when due of interest on the Notes;
default in the payment when due of principal on the Notes; failure to
perform or comply with certain covenants, agreements or warranties in the
Indenture which failure continues for 30 days after receipt of notice
from the Trustee or Holders of at least 25% of the outstanding Notes;
defaults under and acceleration prior to maturity, or failure to pay at
maturity, of certain other Indebtedness; except as permitted under the
Indenture, any Subsidiary Guarantee shall cease for any reason to be in
full force and effect; certain judgments that remain undischarged for a
period of 60 days after their entry; dispositions by holders of certain
Indebtedness following a default under such Indebtedness of assets of the
Company or any Subsidiary pledged to secure such Indebtedness and certain
events of bankruptcy or insolvency involving the Company or any
Subsidiary. If an Event of Default occurs and is continuing, the Trustee
or the Holders of at least 25% in principal amount of the Notes may
declare all outstanding Notes to be due and payable immediately in an
amount equal to the principal amount of and premium on, if any, such
Notes, plus any accrued and unpaid interest; provided, however, that in
the case of an Event of Default arising from certain events of bankruptcy
or insolvency involving the Company or any Subsidiary Guarantor, the
principal amount of and premium on, if any, and any accrued and unpaid
interest on, the Notes becomes due and payable immediately without
further action or notice. Subject to certain exceptions, Holders of a
majority in aggregate principal amount of the then outstanding Notes may
direct the time, method and place of conducting any proceeding for any
remedy available to the Trustee or exercising any trust or power
conferred on it by the Indenture; provided that the Trustee may refuse to
follow any direction that conflicts with law or the Indenture, that the
Trustee determines may be unduly prejudicial to the rights of other
Holders, or would involve the Trustee in personal liability. The Trustee
may withhold from Holders notice of any continuing default (except a
payment Default) if it determines that such withholding is in their
interests.
13. Subsidiary Guarantees. Payment of principal, premium,
if any, and interest (including interest on overdue principal and overdue
interest, to the extent lawful) on the Notes and all other Obligations of
the Company to the Holders or the Trustee under the Indenture and the
Notes is, jointly and severally, unconditionally guaranteed by each of
the Subsidiary Guarantors pursuant to and subject to the terms of Article
X of the Indenture.
14. Trustee Dealings with Company. The Trustee in its
individual or any other capacity may become the owner or pledgee of Notes
and may otherwise deal with the Company or any of 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 Company shall have any
liability for any obligation of the Company under the Indenture or the
Notes. Each Holder by accepting a Note waives and releases such Persons
from all such liability, and such waiver and release is part of the
consideration for the issuance of the Notes.
16. Successor Substituted. Upon the merger, consolidation
or other business combination involving the Company or one or more
Subsidiary Guarantors of the Company, or upon the sale, assignment,
transfer, conveyance or other disposition of all or substantially all of
the Company's or a Subsidiary Guarantor's properties and assets, the
Surviving Person (if other than the Company or a Subsidiary Guarantor, as
the case may be) resulting from such disposition shall assume all of the
obligations of the Company or the Subsidiary Guarantor under the Notes or
the Subsidiary Guarantee, as applicable, and the Indenture and shall
succeed to, and be substituted for, and may exercise every right and
power of, the Company or the Subsidiary Guarantor under the Indenture
with the same effect as if such Surviving Person had been named as the
Company or a Subsidiary Guarantor in the Indenture.
17. Governing Law. This Note shall be governed by and
construed in accordance with the laws of the State of New York, without
regard to the conflict of laws provisions thereof.
18. Authentication. This Note shall not be valid until
authenticated by the manual signature of the Trustee or an authenticating
agent.
19. Abbreviations. Customary abbreviations may be used in
the name of a Holder or an assignee, such as TEN COM (= tenants in
common), TEN ENT (= tenants by the entireties), JT TEN (= joint tenants
with right of survivorship and not as tenants in common), CUST (=
Custodian), and U/G/M/A (= Uniform Gifts to Minors Act).
20. CUSIP Numbers. Pursuant to a recommendation
promulgated by the Committee on Uniform Note Identification Procedures,
the Company 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 Holders. 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 printed on the securities.
The Company will furnish to any Holder upon written
request and without charge a copy of the Indenture, which has in it the
text of this Note in larger type. Request may be made to: PhoneTel
Technologies, Inc., 1127 Euclid Avenue, Suite 650, Cleveland, Ohio
44115-1601, Attention: Secretary.
ASSIGNMENT FORM
To assign this Note, fill in the form below:
FOR VALUE RECEIVED the undersigned hereby sell(s),
assigns(s) and transfer(s) unto
Please insert social security or other identifying number
of assignee
Please print or typewrite name and address including
zip code of assignee
the within Note and all rights thereunder, hereby irrevocably
constituting and appointing ___________________________ to transfer
said Note on the books of the Company.
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*:
- --------
* The Holder's signature must be guaranteed by an eligible
guarantor that is a member of one of the following recognized
signature guarantee programs: (A) The SECURITIES TRANSFER AGENTS
MEDALLION PROGRAM; (B) The NEW YORK STOCK EXCHANGE MEDALLION
SIGNATURE PROGRAM; or (C) The STOCK EXCHANGES MEDALLION PROGRAM.
EXHIBIT A-1
FORM OF NOTATION ON NOTE
RELATING TO GUARANTEE
Each Subsidiary Guarantor, jointly and severally,
unconditionally guarantees, to the extent set forth in the Indenture and
subject to the provisions of the Indenture that: (i) the principal of,
premium, if any, and interest on the Notes will be promptly paid in full
when due, whether at maturity, by acceleration, redemption or otherwise,
and interest on the overdue principal of and interest on the Notes, if
any, to the extent lawful, and all other Obligations of the Company to
the Holders or the Trustee under the Indenture and the Notes will be
promptly paid in full, all in accordance with the terms of the Indenture
and the Notes; and (ii) in case of any extension of time of payment or
renewal of any Notes or any of such other Obligations, that the Notes
will be promptly paid in full when due in accordance with the terms of
such extension or renewal, whether at stated maturity, by acceleration or
otherwise.
The obligations of each Subsidiary Guarantor to the
Holders of Notes and the Trustee pursuant to this guarantee and the
Indenture are set forth in Article X of the Indenture, to which reference
is hereby made.
Subsidiary Guarantors:
PUBLIC TELEPHONE CORPORATION
WORLD COMMUNICATIONS, INC.
PARAMOUNT COMMUNICATION SYSTEMS INC.
NORTHERN FLORIDA TELEPHONE CORPORATION
PAYPHONES OF AMERICA, INC.
PHONETEL CCI, INC.
For each of the above:
By:______________________________
Name:
Title:
OPTION OF HOLDER TO ELECT PURCHASE
If you elect to have this Note purchased by the Company
pursuant to Section 4.11 of the Indenture, check the box:
If you elect to have this Note purchased by the Company
pursuant to Section 4.12 of the Indenture, check the box:
If you elect to have this Note purchased by the Company
pursuant to Section 4.13 of the Indenture, check the box:
If you elect to have only part of this Note purchased by
the Company pursuant to Section 4.11 or 4.12 or 4.13 of the Indenture,
state the amount (multiples of $1,000 only):
$----------------
Date: _________________ Your Signature: ________________________
(Sign exactly as your name appears
on the other side of this Note)
Signature Guarantee:*_____________________________
- --------
* The Holder's signature must be guaranteed by an eligible
guarantor that is a member of one of the following recognized
signature guarantee programs: (A) The SECURITIES TRANSFER AGENTS
MEDALLION PROGRAM; (B) The NEW YORK STOCK EXCHANGE MEDALLION
SIGNATURE PROGRAM; or (C) The STOCK EXCHANGES MEDALLION PROGRAM.
EXHIBIT B
FORM OF LEGEND FOR BOOK-ENTRY NOTES
Any Global Note authenticated and delivered hereunder
shall bear a legend in substantially the following form:
THIS SECURITY IS A GLOBAL NOTE WITHIN THE MEANING OF THE
INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME
OF A DEPOSITARY OR A NOMINEE OF A DEPOSITARY OR A SUCCESSOR
DEPOSITARY. THIS SECURITY IS NOT EXCHANGEABLE FOR SECURITIES
REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR
ITS NOMINEE EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE
INDENTURE, AND NO TRANSFER OF THIS SECURITY (OTHER THAN A
TRANSFER OF THIS SECURITY AS A WHOLE BY THE DEPOSITARY TO A
NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO
THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY) MAY BE
REGISTERED EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE
INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION ("DTC"), TO ISSUER OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS
AN INTEREST HEREIN.
SCHEDULE OF EXCHANGES
The following exchanges of a part of this Global Notes for
Physical Note have been made:
Amount of increase Principal Amount of Signature of
Amount of decrease in Principal this Global Note authorized officer
Date of in Principal Amount Amount of this following such of Trustee or Note
Exchange of this Global Note Global Note decrease (or increase) Custodian
- -------- ------------------- ------------------ ---------------------- ------------------