UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
[x] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended September 30, 1996
------------------------------------
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the transition period from to
Commission file number 333-06609-02
SPRINT SPECTRUM FINANCE CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE 43-1746537
(State or other jurisdiction of incorporation (IRS Employer
or organization) Identification No.)
4900 Main Street, Kansas City, Missouri, 64112
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(Address of principal executive offices)
(816) 559-1000
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(Registrant's telephone number, including area code)
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(Former name, former address and former fiscal year,
if changed since last report)
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days.
Yes X No
The Registrant meets the condition set forth in General Instruction H(1)(a) and
(b) of Form 10-Q and is therefore filing this form with the reduced disclosure
format.
<PAGE>
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SPRINT SPECTRUM FINANCE CORPORATION
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FORM 10-Q FOR THE QUARTER ENDED SEPTEMBER 30, 1996
INDEX
Page
Number
------------
Part I - Financial Information
Item 1. Financial Statements................................. 1 - 3
Balance Sheets............................................ 1
Note to Balance Sheet..................................... 2 - 3
Item 2. Management's Discussion and Analysis of Financial
Condition and Results of Operations....................... 4
Part II - Other Information
Item 1. Legal Proceedings.................................... 5
Item 2. Changes in Securities................................ 5
Item 3. Defaults On Senior Securities........................ 5
Item 4. Submission of Matters to a Vote of Security Holders.. 5
Item 5. Other Information.................................... 5
Item 6. Exhibits and Reports on Form 8-K..................... 5
Signature.......................................................... 6
Exhibits
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<TABLE>
<CAPTION>
PART I.
Item 1.
SPRINT SPECTRUM FINANCE CORPORATION
(A wholly-owned subsidiary of Sprint Spectrum L.P.)
BALANCE SHEETS
September 30, May 21,
1996 1996
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(Unaudited) (Inception)
ASSETS
<S> <C> <C>
Receivable from parent............................................... $ 100 $ 100
================== ==================
TOTAL ASSETS......................................................... $ 100 $ 100
================== ==================
STOCKHOLDER'S EQUITY
Common stock, $1.00 par value; 1,000 shares authorized; 100 shares
issued and outstanding............................................ $ 100 $ 100
================== ==================
TOTAL STOCKHOLDER'S EQUITY........................................... $ 100 $ 100
================== ==================
See accompanying notes to balance sheets.
</TABLE>
<PAGE>
PART I.
Item 1.
SPRINT SPECTRUM FINANCE CORPORATION
(A wholly-owned subsidiary of Sprint Spectrum L.P.)
Notes to Balance Sheets
1. General
Sprint Spectrum Finance Corporation ("FinCo"), a Delaware corporation, was
formed on May 21, 1996 and is a wholly-owned subsidiary of Sprint Spectrum L.P.
(the "Partnership").
The Partnership contributed $100 to FinCo on May 21, 1996 in exchange for 100
shares of common stock.
2. Senior Notes and Senior Discount Notes
In August 1996, Sprint Spectrum L.P. and Sprint Spectrum Finance Corporation
(together, the "Issuers") issued $250 million aggregate principal amount of 11%
Senior Notes due 2006 ("the Senior Notes"), and $500 million aggregate principal
amount at maturity of 12 1/2% Senior Discount Notes due 2006 (the "Senior
Discount Notes" and, together with the Senior Notes, the "Notes"). The Senior
Discount Notes were issued at a discount to their aggregate principal amount at
maturity and generated proceeds of approximately $273 million. Cash interest on
the Senior Notes will accrue at a rate of 11% per annum and is payable
semi-annually in arrears on each February 15 and August 15, commencing February
15, 1997. Cash interest will not accrue or be payable on the Senior Discount
Notes prior to August 15, 2001. Thereafter, cash interest on the Senior Discount
Notes will accrue at a rate of 12 1/2% per annum and will be payable
semi-annually in arrears on each February 15 and August 15, commencing February
15, 2002.
On August 15, 2001, the Issuers will be required to redeem an amount equal to
$384.772 per $1,000 principal amount at maturity of each Senior Discount Note
then outstanding ($192 million in aggregate principal amount at maturity,
assuming all of the Senior Discount Notes remain outstanding at such date).
The Senior Notes and Senior Discount Notes are redeemable at the option of
the Issuers, in whole or in part, at any time on or after August 15, 2001 at the
redemption prices set forth below, respectively, plus accrued and unpaid
interest, if any, to the redemption date, if redeemed during the 12 month period
beginning on August 15 of the years indicated below:
Senior Discount
Senior Notes Notes
Year Redemption Price Redemption Price
----- ---------------- ----------------
2001 105.500% 110.000%
2002 103.667% 106.500%
2003 101.833% 103.250%
2004 and thereafter 100.000% 100.000%
In addition, prior to August 15, 1999, the Issuers may redeem up to 35% of the
originally issued principal amount of Senior Notes and Senior Discount Notes (at
maturity). The redemption price of the Senior Notes is equal to 111.0% of the
principal amount of the Senior Notes so redeemed, plus accrued and unpaid
interest, if any to the redemption date with the net proceeds of one or more
public equity offerings (as defined), provided that at least 65% of the
originally issued principal amount of Senior Notes would remain outstanding
immediately after giving effect to such redemption. The redemption price of the
Senior Discount Notes is equal to 112.5% of the accreted value at the redemption
date of the Senior Discount Notes so redeemed, with the net proceeds of one or
more public equity offerings (as defined), provided that at least 65% of the
originally issued principal amount at maturity of the Senior Discount Notes
would remain outstanding immediately after giving effect to such redemption.
The Notes contain certain restrictive covenants, including (among other
requirements) limitations on additional indebtedness, limitations on restricted
payments, limitations on liens, and limitations on dividends and other payment
restrictions affecting restricted subsidiaries (as defined).
<PAGE>
PART I.
Item 2.
SPRINT SPECTRUM FINANCE CORPORATION
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
General
FinCo was formed on May 21, 1996 for the purpose of serving as co-obligor for
the Senior Notes and Senior Discount Notes discussed below. There has been no
operating activity since inception of the Company.
Liquidity and Capital Resources
In August, 1996 the Issuers issued $250 million aggregate principal amount of
the Senior Notes, and $500 million aggregate principal amount at maturity of 12
1/2% Senior Discount Notes. FinCo is co-obligor for the Notes.
Repayment of the Notes will be made by Sprint Spectrum L.P.
The Senior Discount Notes were issued at a discount to their aggregate principal
amount at maturity and generated proceeds of approximately $273 million. Cash
interest on the Senior Notes will accrue at a rate of 11% per annum and is
payable semi-annually in arrears on each February 15 and August 15, commencing
February 15, 1997. Cash interest will not accrue or be payable on the Senior
Discount Notes prior to August 15, 2001. Thereafter, cash interest on the Senior
Discount Notes will accrue at a rate of 12 1/2% per annum and will be payable
semi-annually in arrears on each February 15 and August 15, commencing February
15, 2002. On August 15, 2001, the Issuers will be required to redeem an amount
equal to $384.772 per $1,000 principal amount at maturity of each Senior
Discount Note then outstanding ($192 million in aggregate principal amount at
maturity, assuming all of the Senior Discount Notes remain outstanding at such
date). The proceeds of approximately $509 million from the issuance of the Notes
(net of approximately $14 million of underwriting discounts, commissions, and
offering expenses) will be used by Sprint Spectrum L.P. to fund capital
expenditures, including the buildout of the nationwide PCS network, to fund
working capital as required, to fund operating losses and for other partnership
purposes.
<PAGE>
PART II.
Other Information
Item 1. Legal Proceedings
There were no reportable events during the quarter ended September
30, 1996.
Item 2. Changes in Securities
There were no reportable events during the quarter ended September 30,
1996.
Item 3. Defaults On Senior Securities
There were no reportable events during the quarter ended September 30,
1996.
Item 4. Submission of Matters to Votes of Security Holders
There were no reportable events during the quarter ended September 30,
1996.
Item 5. Other Information
None.
Item 6. Exhibits and Reports on Form 8-K
(a) The following exhibits are filed as part of this report:
3.1 Certificate of Incorporation of Sprint Spectrum Finance Corpo-
ration (incorporated by reference to Form S-1 Registra-
tion
Statement, Registration No. 333-06609, filed on June 21,
1996).
3.2 By-laws of Sprint Spectrum Finance Corporation
(incorporated by reference to Form S-1 Registration Statement,
Registration No. 333-06609, filed on June 21, 1996).
4.1 Senior Note Indenture, dated August 23, 1996, between Sprint
Spectrum L.P., Sprint Spectrum Finance Corporation, and The
Bank of New York, as Trustee.
4.2 Form of Senior Note (included in Exhibit 4.1).
4.3 Senior Discount Note Indenture, dated August 23, 1996, between
Sprint Spectrum L.P., Sprint Spectrum Finance Corporation, and
The Bank of New York, as Trustee.
4.4 Form of Senior Discount Note (included in Exhibit 4.3).
10.1 Registration Rights Agreement dated August 23, 1996 between
Sprint Spectrum L.P., Sprint Spectrum Finance Corporation and
Sprint Corporation.
27 Financial data schedule
(b) Reports on Form 8-K
No reports on Form 8-K were filed during the quarter ended September
30, 1996.
<PAGE>
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
SPRINT SPECTRUM FINANCE CORPORATION
(Registrant)
By: /s/ Robert M. Neumeister
Robert M. Neumeister, Jr.
Chief Financial Officer
Dated: November 12, 1996
<PAGE>
Exhibit 4.1
SPRINT SPECTRUM L.P.
SPRINT SPECTRUM FINANCE CORPORATION,
as Issuers,
and
THE BANK OF NEW YORK,
as Trustee
----------------------------
INDENTURE
Dated as of August 15, 1996
-----------------------
$250,000,000
11% Senior Notes due 2006
<PAGE>
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CROSS-REFERENCE TABLE
TIA Section Indenture Section
ss. 310(a)(1) ............................................... 7.10; 11.1
(a)(2) ............................................... 7.10; 11.1
(a)(3) ............................................... N.A.
(a)(4) ............................................... N.A.
(b) ............................................... 7.8; 7.10; 11.2
(c) ............................................... N.A.
ss. 311(a) ............................................... 7.11
(b) ............................................... 7.11
(c) ............................................... N.A.
ss. 312(a) ............................................... 2.5
(b) ............................................... 11.3
(c) ............................................... 11.3
ss. 313(a) ............................................... 7.6
(b)(1) ............................................... 7.6
(b)(2) ............................................... 7.6
(c) ............................................... 7.6; 11.2
(d) ............................................... 7.6
ss. 314(a) ............................................... 4.6; 4.7; 11.2
(b) ............................................... N.A.
(c)(1) ............................................... 11.4
(c)(2) ............................................... 11.4
(c)(3) ............................................... 11.4
(d) ............................................... N.A.
(e) ............................................... 11.5
(f) ............................................... N.A.
ss. 315(a) ............................................... 7.1(b)
(b) ............................................... 7.5; 11.2
(c) ............................................... 7.1(a)
(d) ............................................... 7.1(c)
(e) ............................................... 6.11
ss. 316(a) (last sentence) ................................... 2.9
(a)(1)(A) ............................................... 6.5
(a)(1)(B) ............................................... 6.4
(a)(2) ............................................... N.A.
(b) ............................................... 6.7
ss. 317(a)(1) ............................................... 6.8
(a)(2) ............................................... 6.9
(b) ............................................... 2.4
ss. 318(a) .............................................. 11.1
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N.A. means Not Applicable.
NOTE: This Cross-Reference Table shall not, for any purpose, be deemed to be a
part of this Indenture.
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<PAGE>
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS AND
INCORPORATION BY REFERENCE
Section Page
1.1 Definitions.......................................... 1
1.2 Incorporation by Reference of Trust
Indenture Act.................................... 24
1.3 Rules of Construction................................ 25
ARTICLE II
THE SECURITIES
2.1 Form and Dating...................................... 25
2.2 Execution and Authentication......................... 25
2.3 Registrar and Paying Agent........................... 26
2.4 Paying Agent To Hold Money in Trust.................. 27
2.5 Securityholder Lists................................. 27
2.6 Transfer and Exchange................................ 28
2.7 Replacement Securities............................... 28
2.8 Outstanding Securities............................... 29
2.9 Treasury Securities.................................. 29
2.10 Temporary Securities................................. 29
2.11 Cancellation......................................... 30
2.12 Defaulted Interest................................... 30
2.13 CUSIP Number......................................... 30
2.14 Deposit of Moneys.................................... 31
ARTICLE III
REDEMPTION
3.1 Election To Redeem; Notices to Trustee............... 31
3.2 Selection of Securities To Be Redeemed............... 31
3.3 Notice of Redemption................................. 32
3.4 Effect of Notice of Redemption....................... 33
3.5 Deposit of Redemption Price.......................... 33
3.6 Securities Redeemed in Part.......................... 34
ARTICLE IV
COVENANTS
4.1 Payment of Securities................................ 34
4.2 Maintenance of Office or Agency...................... 34
4.3 Corporate or Partnership Existence................... 35
4.4 Payment of Taxes and Other Claims.................... 35
4.5 Maintenance of Properties; Insurance;
Books and Records; Compliance with Law........... 36
4.6 Compliance Certificates.............................. 36
4.7 Reports.............................................. 37
4.8 Limitation on Additional Indebtedness................ 38
4.9 Limitation on Restricted Payments.................... 40
4.10 Limitation on Liens Securing Certain
Indebtedness..................................... 43
4.11 Limitation on Issuance of Certain Guarantees
by, and Debt Securities of, Restricted
Subsidiaries..................................... 43
4.12 Limitation on Dividends and Other Payment
Restrictions Affecting Restricted
Subsidiaries..................................... 44
4.13 Disposition of Proceeds of Asset Sales............... 44
4.14 Limitation on Transactions with Equityholders
and Affiliates................................... 48
4.15 Change of Control.................................... 50
4.16 Limitation on Designations of Unrestricted
Subsidiaries..................................... 52
4.17 Limitation on Activities of the Issuers and the
Restricted Subsidiaries.......................... 54
4.18 Limitation on Ownership of Equity Interests
of Restricted Subsidiaries....................... 54
4.19 Amendments to Capital Contribution Agreement......... 54
4.20 Waiver of Stay, Extension or Usury Laws.............. 55
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<PAGE>
ARTICLE V
SUCCESSOR CORPORATION
5.1 Consolidation, Merger, Sale of Assets, Etc........... 55
5.2 Successor Entity Substituted......................... 57
5.3 Status of Subsidiaries............................... 58
ARTICLE VI
DEFAULT AND REMEDIES
6.1 Events of Default.................................... 58
6.2 Acceleration......................................... 60
6.3 Other Remedies....................................... 61
6.4 Waiver of Past Default............................... 61
6.5 Control by Majority.................................. 62
6.6 Limitation on Suits.................................. 62
6.7 Rights of Holders To Receive Payment................. 63
6.8 Collection Suit by Trustee........................... 63
6.9 Trustee May File Proofs of Claim..................... 63
6.10 Priorities........................................... 64
6.11 Undertaking for Costs................................ 65
ARTICLE VII
TRUSTEE
7.1 Duties of Trustee.................................... 65
7.2 Rights of Trustee.................................... 66
7.3 Individual Rights of Trustee......................... 68
7.4 Trustee's Disclaimer................................. 68
7.5 Notice of Defaults................................... 68
7.6 Reports by Trustee to Holders........................ 68
7.7 Compensation and Indemnity........................... 69
7.8 Replacement of Trustee............................... 70
7.9 Successor Trustee by Merger, Etc..................... 71
7.10 Eligibility; Disqualification........................ 71
7.11 Preferential Collection of Claims Against
Issuers.......................................... 72
7.12 Money Held in Trust.................................. 72
7.13 Preferred Collection of Claims....................... 72
ARTICLE VIII
DISCHARGE OF INDENTURE; DEFEASANCE
8.1 Satisfaction and Discharge........................... 72
8.2 Legal Defeasance and Covenant Defeasance............. 73
8.3 Application of Trust Money........................... 76
8.4 Repayment to the Issuers or a Subsidiary
Guarantor........................................ 77
8.5 Reinstatement........................................ 77
ARTICLE IX
AMENDMENTS, SUPPLEMENTS AND WAIVERS
9.1 Without Consent of Holders........................... 78
9.2 With Consent of Holders.............................. 79
9.3 Compliance with Trust Indenture Act.................. 80
9.4 Revocation and Effect of Amendments and
Consents......................................... 80
9.5 Notation on or Exchange of Securities................ 81
9.6 Trustee To Sign Amendments, Etc...................... 82
ARTICLE X
GUARANTEE
10.1 Unconditional Guarantee.............................. 82
10.2 Severability......................................... 83
10.3 Limitation of Liability.............................. 83
10.4 Subsidiary Guarantors May Consolidate, etc.,
on Certain Terms................................. 84
10.5 Contribution......................................... 84
10.6 Waiver of Subrogation................................ 85
10.7 Execution of Guarantee............................... 86
10.8 Waiver of Stay, Extension or Usury Laws.............. 86
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<PAGE>
ARTICLE XI
MISCELLANEOUS
11.1 Trust Indenture Act Controls......................... 87
11.2 Notices.............................................. 87
11.3 Communications by Holders with Other Holders.......... 88
11.4 Certificate and Opinion of Counsel as to
Conditions Precedent............................. 88
11.5 Statements Required in Certificate and Opinion
of Counsel....................................... 88
11.6 Rules by Trustee, Paying Agent, Registrar............ 89
11.7 Legal Holidays....................................... 89
11.8 Governing Law........................................ 89
11.9 No Recourse Against Others........................... 89
11.10 Successors........................................... 90
11.11 Duplicate Originals.................................. 90
11.12 Joint and Several Obligations........................ 90
11.13 Separability......................................... 90
11.14 Table of Contents, Headings, Etc..................... 91
SIGNATURES ..................................................... 92
EXHIBIT A - Form of Security
EXHIBIT B - Form of Subsidiary Guarantee
-iv-
<PAGE>
INDENTURE dated as of August 15, 1996 by and among SPRINT
SPECTRUM L.P., a Delaware limited partnership (the "Company"), SPRINT SPECTRUM
FINANCE CORPORATION, a Delaware corporation ("FinCo" and, together with the
Company, the "Issuers"), and THE BANK OF NEW YORK, a New York banking
corporation, as Trustee (the "Trustee").
The Issuers have duly authorized the execution and delivery of
this Indenture to provide for the issuance of the Securities to be issued as
provided for in this Indenture. All things necessary to make the Securities the
valid and binding obligations of the Issuers, and to make this Indenture a valid
and binding agreement of each of the Issuers, have been done.
The parties hereto agree as follows for the benefit of each
other and for the equal and ratable benefit of the Holders of the Securities:
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION I.1 Definitions.
"Accreted Value" as of any date (the "Specified Date") means,
with respect to each $1,000 principal amount at maturity of the Senior Discount
Notes:
(i) if the Specified Date is one of the following dates
(each a "Semi-Annual Accrual Date"), the amount set forth opposite such
date below:
Semi-Annual Accreted
Accrual Date Value
Issue Date......................................... $546.87
February 15, 1997.................................. 579.48
August 15, 1997.................................... 615.70
February 15, 1998.................................. 654.18
August 15, 1998.................................... 695.07
February 15, 1999.................................. 738.51
August 15, 1999.................................... 784.66
February 15, 2000.................................. 833.71
August 15, 2000.................................... 885.81
February 15, 2001.................................. 941.18
August 15, 2001.................................... $1,000.00;
(ii) if the Specified Date occurs between two Semi-Annual
Accrual Dates, the sum of (a) the Accreted Value for the Semi-Annual
Accrual Date immediately preceding the Specified Date and (b) an amount
equal to the product of (x) the Accreted Value for the immediately
following Semi-Annual Accrual Date less the Accreted Value for the
immediately preceding Semi-Annual Accrual Date and (y) a fraction, the
numerator of which is the number of days actually elapsed from the
immediately preceding Semi-Annual Accrual Date to the Specified Date
and the denominator of which is 180; and
(iii) if the Specified Date is after August 15, 2001, $1,000.
"Acquired Indebtedness" means Indebtedness of a Person
existing at the time such Person becomes a Restricted Subsidiary or assumed in
connection with an Asset Acquisition by such Person and not incurred in
connection with, or in anticipation of, such Person becoming a Restricted
Subsidiary or such Asset Acquisition.
"Affiliate" of any specified Person means any other Person
which, directly or indirectly, controls, is controlled by or is under direct or
indirect common control with, such specified Person. For the purposes of this
definition, (i) "control" when used with respect to any Person means the power
to direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise,
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing and (ii) each of the Partners shall be deemed an Affiliate of the
Company.
"Affiliate Transaction" has the meaning provided in Section
4.14.
"Agent" means any Registrar, Paying Agent or co-registrar.
"Annualized Pro Forma Consolidated Operating Cash Flow" means
Consolidated Operating Cash Flow for the latest two full fiscal quarters for
which consolidated financial statements of the Company are available multiplied
by two. For purposes of calculating "Consolidated Operating Cash Flow" for any
period for purposes of this definition only, (i) any Subsidiary of the Company
that is a Restricted Subsidiary on the date of the transaction giving rise to
the need to calculate "Annualized Pro Forma Consolidated Operating Cash Flow"
(the "Transaction Date") shall be deemed to have been a Restricted Subsidiary at
all times during such period and (ii) any Subsidiary of the Company that is not
a Restricted Subsidiary on the Transaction Date shall be deemed not to have been
a Restricted Subsidiary at any time during such period. In addition to and
without limitation of the foregoing, for purposes of this definition only,
"Consolidated Operating Cash Flow" shall be calculated after giving effect on a
pro forma basis for the applicable period to, without duplication, any Asset
Sales or Asset Acquisitions (including, without limitation, any Asset
Acquisition giving rise to the need to make such calculation as a result of the
Company or one of the Restricted Subsidiaries (including any Person who becomes
a Restricted Subsidiary as a result of the Asset Acquisition) incurring,
assuming or otherwise being liable for Acquired Indebtedness) occurring during
the period commencing on the first day of such two fiscal quarter period to and
including the Transaction Date (the "Reference Period"), as if such Asset Sale
or Asset Acquisition occurred on the first day of the Reference Period.
"APC" means American PCS, L.P., a Delaware limited partner-
ship.
"Asset Acquisition" means (i) any purchase or other
acquisition (by means of transfer of cash or other property to others or payment
for property or services for the account or use of others, or otherwise) of
Equity Interests of any Person by the Company or any Restricted Subsidiary, in
either case, pursuant to which such Person shall become a Restricted Subsidiary
or shall be merged with or into the Company or any Restricted Subsidiary or (ii)
any acquisition by the Company or any Restricted Subsidiary of the assets of any
Person which constitute substantially all of an operating unit or line of
business of such Person.
"Asset Sale" means any direct or indirect sale, conveyance,
transfer, lease or other disposition to any Person other than the Company or a
Wholly-Owned Restricted Subsidiary, in one transaction or a series of related
transactions, of (i) any Equity Interests of any Restricted Subsidiary, (ii) any
FCC license for the provision of wireless telecommunications services held by
the Company or any Restricted Subsidiary (whether by sale of Equity Interests or
otherwise) or (iii) any other property or asset of the Company or any Restricted
Subsidiary outside of the ordinary course of business. For the purposes of this
definition, the term "Asset Sale" shall not include any disposition of
properties or assets of the Company or one or more of the Restricted
Subsidiaries in a transaction that either (x) involves aggregate consideration
of $5.0 million or less or (y) is governed by and complies with Section 5.1.
"Asset Sale Offer" has the meaning provided in Section 4.13.
"Asset Sale Payment Date" has the meaning provided in Section
4.13.
"Available Operating Cash Flow" means, for any period, the
positive cumulative Consolidated Operating Cash Flow realized during such period
or, if such cumulative Consolidated Operating Cash Flow for such period is
negative, the negative amount by which cumulative Consolidated Operating Cash
Flow is less than zero.
"Average Life to Stated Maturity" means, with respect to any
Indebtedness, as at any date of determination, the quotient obtained by dividing
(i) the sum of the products of (a) the number of years (or any fraction thereof)
from such date to the date or dates of each successive scheduled principal
payment (including, without limitation, any sinking fund requirements) of such
Indebtedness multiplied by (b) the amount of each such principal payment by (ii)
the sum of all such principal payments.
"Bank Credit Facility" means the credit facilities
contemplated by the Commitment Letter dated June 7, 1996 among the Company,
Chase Securities Inc. and Chemical Bank, as the same may be amended, modified,
renewed, refunded, replaced or refinanced from time to time.
"Bankruptcy Law" means Title 11 of the U.S. Code or any other
similar Federal, state or foreign law for the relief of debtors.
"Board" of any Person means the board of directors, management
committee or other governing body of such Person. For purposes of this
definition, while the Company is a partnership, "Board" shall mean, with respect
to the Company, the Partnership Board established under the Holdings Partnership
Agreement and any Person to whom appropriate authority has been delegated by
such Partnership Board.
"Business Day" means any day except a Saturday, a Sunday or
any day on which banking institutions in New York, New York or Kansas City,
Missouri, are required or authorized by law or other governmental action to be
closed.
"Cable Partner" means TCI Telephony Services, Inc., Com-
cast Telephony Service and Cox Telephony Partnership.
"Capitalized Lease Obligation" means any obligation to pay
rent or other amounts under a lease of (or other agreement conveying the right
to use) any property (whether real, personal or mixed) that is required to be
classified and accounted for as a capital lease obligation under GAAP and, for
the purpose of this Indenture, the amount of such obligation at any date shall
be the capitalized amount thereof at such date, determined in accordance with
GAAP.
"Cash Equivalents" means (i) any evidence of Indebtedness with
a maturity of 365 days or less issued by or directly, fully and unconditionally
guaranteed or insured by the United States of America or any agency or
instrumentality thereof (provided that the full faith and credit of the United
States of America is pledged in support thereof); (ii) deposits, certificates of
deposit or acceptances with a maturity of 365 days or less of any institution
that is a member of the Federal Reserve System having combined capital and
surplus and undivided profits of not less than $500.0 million; (iii) commercial
paper with a maturity of 365 days or less issued by a corporation (other than an
Affiliate of the Company) incorporated or organized under the laws of the United
States or any state thereof or the District of Columbia and rated at least "A-1"
by S&P or "P-1" by Moody's; (iv) repurchase agreements and reverse repurchase
agreements relating to marketable direct obligations issued by or directly,
fully and unconditionally guaranteed or insured by the United States of America
or any agency or instrumentality thereof (provided that the full faith and
credit of the United States of America is pledged in support thereof), in each
case, maturing within 365 days from the date of of acquisition and (v) any "Cash
Equivalents" as defined in the Bank Credit Facility as in effect on the Issue
Date.
"Change of Control" means the occurrence of any of the
following events: (i) any "person" or "group" (as such terms are used in
Sections 13(d) and 14(d) of the Exchange Act) other than a Permitted Holder or
Permitted Holders or a Person or a group controlled by a Permitted Holder or
Permitted Holders is or becomes the "beneficial owner" (as defined in Rules
13d-3 and 13d-5 under the Exchange Act, except that a Person shall be deemed to
have "beneficial ownership" of all securities that such Person has the right to
acquire, whether such right is exercisable immediately or only after the passage
of time, upon the happening of an event or otherwise), directly or indirectly,
of more than 40% of the total Voting Equity Interests of the Company or
Holdings; provided a Permitted Holder or Permitted Holders or a group controlled
by a Permitted Holder or Permitted Holders does not own a greater percentage of
the total Voting Equity Interests of the Company or Holdings, as the case may
be; (ii) the Company or Holdings consolidates with, or 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
consolidates with, or merges with or into, the Company or Holdings, in any such
event pursuant to a transaction in which the outstanding Voting Equity Interests
of the Company or Holdings are converted into or exchanged for cash, securities
or other property, and immediately after such transaction a "person" or "group"
(as such terms are used in Sections 13(d) and 14(d) of the Exchange Act) other
than a Permitted Holder or Permitted Holders or a Person or group controlled by
a Permitted Holder or Permitted Holders is the "beneficial owner" (as defined in
Rules 13d-3 and 13d-5 under the Exchange Act, except that a person shall be
deemed to have "beneficial ownership" of all securities that such Person has the
right to acquire, whether such right is exercisable immediately or only after
the passage of time, upon the happening of an event or otherwise), directly or
indirectly, of more than 40% of the total Voting Equity Interests of the
surviving or transferee Person; provided a Permitted Holder or Permitted Holders
or a Person or group controlled by a Permitted Holder or Permitted Holders does
not own a greater percentage of the total Voting Equity Interests of such
Person; and (iii) the approval by the holders of Equity Interests of the Company
or Holdings of any plan or proposal for the liquidation or dissolution of the
Company or Holdings.
"Change of Control Date" has the meaning provided in Section
4.15.
"Change of Control Offer" has the meaning provided in Section
4.15.
"Change of Control Payment Date" has the meaning provided in
Section 4.15.
"Commission" means the Securities and Exchange Commission.
"Common Equity Interests" means (i) with respect to a Person
which is a corporation, any and all shares, interests or other participations
in, and other equivalents (however designated and whether voting or nonvoting)
of, such Person's common stock and includes, without limitation, all series and
classes of such common stock and (ii) with respect to a Person which is not a
corporation, Equity Interests which have characteristics similar in all material
respects to those of common stock of a corporation.
"Company" means the party named as such in this Indenture
until a successor replaces it in accordance with the provisions of this
Indenture and, thereafter, means the successor.
"Consolidated Income Tax Expense" means, with respect to any
period, the provision for Federal, state, local, foreign and other income taxes
of the Company and the Restricted Subsidiaries for such period as determined on
a consolidated basis in accordance with GAAP.
"Consolidated Interest Expense" means, with respect to any
period, without duplication, the sum of (i) the interest expense of the Company
and the Restricted Subsidiaries for such period as determined on a consolidated
basis in accordance with GAAP and shall, in any event, include, without
limitation, (a) any amortization of debt discount, (b) the net cost or net
benefit, as the case may be, under any Currency Agreements and Interest Rate
Protection Obligations (including any amortization of discounts), (c) the
interest portion of any deferred payment obligation, (d) all commissions,
discounts and other fees and charges owed with respect to letters of credit,
bills of exchange, promissory notes and bankers' acceptance financing and (e)
all accrued interest, (ii) all but the principal component of Capitalized Lease
Obligations paid, accrued and/or scheduled to be paid or accrued by the Company
and the Restricted Subsidiaries during such period as determined on a
consolidated basis in accordance with GAAP and (iii) the aggregate amount of
dividends and distributions paid or accrued during such period in respect of
Preferred Equity Interests of the Company and the Restricted Subsidiaries (other
than such dividends or distributions paid or accrued on or with respect to
Preferred Equity Interests owned by the Company or a Wholly-Owned Restricted
Subsidiary) determined on a consolidated basis in accordance with GAAP.
"Consolidated Net Income" means, with respect to any period,
the net income (loss) of the Company and the Restricted Subsidiaries for such
period as determined on a consolidated basis in accordance with GAAP, adjusted,
to the extent included in calculating such net income, by excluding, without
duplication, (i) all extraordinary gains or losses, (ii) the portion of net
income (but not losses) of the Company allocable to minority interests in
unconsolidated Persons, except to the extent that cash dividends or
distributions have actually been received by the Company or any Restricted
Subsidiary, (iii) net income (or loss) of any Person combined with the Company
or a Restricted Subsidiary on a "pooling of interests" basis attributable to any
period prior to the date of combination, (iv) gains in respect of any Asset
Sales, (v) the net income of any Unrestricted Subsidiary, except to the extent
that cash dividends or distributions have actually been received by the Company
or a Restricted Subsidiary, (vi) the portion of net income (but not losses) of
the Company allocable to minority interests in Restricted Subsidiaries (other
than a Subsidiary Guarantor) of such person and (vii) the net income of any
Restricted Subsidiary (other than a Subsidiary Guarantor) for such period to the
extent the declaration of dividends or similar distributions by that Restricted
Subsidiary is not at the time permitted, directly or indirectly, by the terms of
its charter or any agreement, instrument, judgment, decree, order, statute, rule
or regulation applicable to that Restricted Subsidiary.
"Consolidated Operating Cash Flow" means, with respect to any
period, the Consolidated Net Income of the Company and the Restricted
Subsidiaries for such period (i) increased by (to the extent included in
computing Consolidated Net Income) the sum of (a) Consolidated Income Tax
Expense for such period; (b) Consolidated Interest Expense for such period; (c)
depreciation of the Company and the Restricted Subsidiaries for such period,
determined on a consolidated basis in accordance with GAAP; (d) amortization of
the Company and the Restricted Subsidiaries for such period, including, without
limitation and without duplication, amortization of any Consolidated Interest
Expense and amortization of capitalized debt issuance costs for such period, all
determined on a consolidated basis in accordance with GAAP; and (e) any other
non-cash charges that were deducted in computing Consolidated Net Income
(excluding any non-cash charge which requires an accrual or reserve for cash
charges for any future period) of the Company and the Restricted Subsidiaries
for such period in accordance with GAAP and (ii) decreased by any non-cash gains
that were included in computing Consolidated Net Income.
"consolidation" means, with respect to the Company, the
consolidation of the accounts of the Restricted Subsidiaries with those of the
Company, all in accordance with GAAP; provided that "consolidation" will not
include consolidation of the accounts of any Unrestricted Subsidiary with the
accounts of the Company.
The term "consolidated" has a correlative meaning to the foregoing.
"covenant defeasance" has the meaning provided in Section 8.2.
"Currency Agreement" means any foreign exchange contract,
currency swap agreement or other similar agreement or arrangement designed to
protect against fluctuations in currency values.
"Debt Instrument" has the meaning provided in Section 6.1.
"Debt Securities" means any debt securities (including any
guarantee of such securities) issued by any Issuer and/or any Restricted
Subsidiary in connection with a public offering (whether or not underwritten) or
a private placement (provided such private placement is underwritten for resale
pursuant to Rule 144A, Regulation S or otherwise under the Securities Act or
sold on an agency basis by a broker-dealer or one of its Affiliates to 10 or
more beneficial holders), it being understood that the term "Debt Securities"
shall not include any evidence of Indebtedness under any of the Vendor Credit
Facilities or the Bank Credit Facility or any other commercial bank borrowings
or similar borrowings, recourse transfers of financial assets, capital leases or
other types of borrowings incurred in a manner not customarily viewed as a
"securities offering."
"Default" means any event that is, or after notice or passage
of time or both would be, an Event of Default.
"Default Amount" means 100% of the principal amount of all
outstanding Securities, plus accrued and unpaid interest, if any, thereon.
"Designation" has the meaning provided in Section 4.16.
"Designation Amount" has the meaning provided in Section 4.16.
"Disinterested Director" means, with respect to any
transaction or series of transactions, a member of the Board of the Company or
Holdings, as the case may be, other than any such Board member who has any
material direct or indirect financial interest in or with respect to such
transaction or series of transactions.
"Disqualified Equity Interest" means, with respect to any
Person, any Equity Interest that, by its terms (or by the terms of any security
into which it is convertible or for which it is mandatorily exchangeable), or
upon the happening of any event, matures or is mandatorily redeemable, pursuant
to a sinking fund obligation or otherwise, or is exchangeable for Indebtedness
at the option of the holder thereof, or is redeemable at the option of the
holder thereof, in whole or in part, on or prior to the final maturity date of
the Securities.
"EquipmentCo" means Sprint Spectrum Equipment Company, L.P., a
Delaware limited partnership.
"Equity Interest" in 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, in such Person.
"Event of Default" has the meaning provided in Section 6.1.
"Excess Proceeds" has the meaning provided in Section 4.13.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Excluded Cash Proceeds" means (i) any net cash proceeds used
to make a concurrent Investment constituting a Restricted Payment pursuant to
clause (iv) of the third paragraph of Section 4.9 and (ii) the first $1.4
billion of net cash proceeds received by the Company after December 31, 1995
from capital contributions in respect of existing Equity Interests (other than
Disqualified Equity Interests) of the Company or from the issue or sale (other
than to a Restricted Subsidiary) of Equity Interests (other than Disqualified
Equity Interests) of the Company; provided that (A) net cash proceeds referred
to in the immediately preceding clause (i), (B) net cash proceeds used to make
an Investment in APC or (C) net cash proceeds used to make an investment
pursuant to clauses (ii) or (iii)(a) of the third paragraph of Section 4.9 shall
not be included as part of the first $1.4 billion referred to in this clause
(ii).
"Fair Market Value" means, with respect to any asset or
property, the price that could be negotiated in an arms'-length free market
transaction, for cash, between a willing seller and a willing buyer, neither of
whom is under pressure or compulsion to complete the transaction. Unless
otherwise specified in this Indenture, Fair Market Value shall be determined by
the Board of the Company acting in good faith.
"FinCo" means the party named as such in this Indenture until
a successor replaces it in accordance with the provisions of this Indenture and,
thereafter, means the successor.
"FCC" means the Federal Communications Commission.
"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 may be approved by a significant segment of
the accounting profession of the United States of America, which are applicable
on the Issue Date.
"guarantee" means, as applied to any obligation, (i) a
guarantee (other than by endorsement of negotiable instruments for collection in
the ordinary course of business), directly or indirectly, in any manner, of any
part or all of such obligation and (ii) an agreement, direct or indirect,
contingent or otherwise, the effect of which is to assure in any way the payment
or performance (or payment of damages in the event of non-performance) of all or
any part of such obligation (other than an agreement to make a capital
contribution that otherwise is permitted by Section 4.9), including, without
limiting the foregoing, the payment of amounts drawn down under letters of
credit.
"Holder" or "Securityholder" means the Person in whose name a
Security is registered on the Registrar's books.
"Holdings" means Sprint Spectrum Holding Company, L.P., a
Delaware limited partnership.
"Holdings Partnership Agreement" means the Amended and
Restated Agreement of Limited Partnership of Holdings dated as of January 31,
1996.
"incur" has the meaning provided in Section 4.8.
"Indebtedness" means, with respect to any Person, without
duplication, (i) any liability, contingent or otherwise, of such Person (a) for
borrowed money (whether or not the recourse of the lender is to the whole of the
assets of such Person or only to a portion thereof), whether as a cash advance,
bill, overdraft or money market facility loan, or (b) evidenced by a note,
debenture or similar instrument or letters of credit (including a purchase money
obligation) or by any book-entry mechanism or (c) for the payment of money
relating to a Capitalized Lease Obligation or other obligation relating to the
deferred purchase price of property or (d) in respect of any Interest Rate
Protection Obligation or any Currency Agreement; (ii) any liability of others of
the kind described in the preceding clause (i) which the Person has guaranteed
or which is otherwise its legal liability; (iii) any obligation secured by a
Lien to which the property or assets of such Person are subject, whether or not
the obligations secured thereby shall have been assumed by or shall otherwise be
such Person's legal liability; and (iv) the greater of the maximum repurchase or
redemption price or liquidation preference of any Disqualified Equity Interests
of such Person or, with respect to any Restricted Subsidiary of such Person, of
any Equity Interests (other than Common Equity Interests) of such Restricted
Subsidiary. In no event shall "Indebtedness" include trade payables incurred in
the ordinary course of business. For purposes of Section 4.8 and for purposes of
Section 6.1, in determining the principal amount of any Indebtedness (l) to be
incurred by the Company or a Restricted Subsidiary or which is outstanding at
any date, (x) the principal amount of any Indebtedness which provides that an
amount less than the principal amount thereof shall be due upon any declaration
of acceleration thereof shall be the accreted value thereof at the date of
determination and (y) effect shall be given to the impact of any Currency
Agreements with respect to such Indebtedness and (2) outstanding at any time
under any Currency Agreement of the Company or any Restricted Subsidiary, the
principal amount shall be the net payment obligation under such Currency
Agreement at such time.
"Indenture" means this Indenture as amended or supplemented
from time to time pursuant to the terms hereof.
"Independent Financial Advisor" means an investment banking
firm of national standing in the United States which, in the good faith judgment
of the Board of the Company, is independent with respect to the Company and its
Affiliates and qualified to perform the task for which it is to be engaged.
"Interest Payment Date," when used with respect to any
Security, means the stated maturity of an installment of interest specified in
such Security.
"Interest Rate Protection Obligation" means the obligation of
any Person pursuant to any arrangement with any other Person whereby, directly
or indirectly, such Person is entitled to receive from time to time periodic
payments calculated by applying either a floating or a fixed rate of interest on
a stated notional amount in exchange for periodic payments made by such Person
calculated by applying a fixed or a floating rate of interest on the same
notional amount and shall include, without limitation, interest rate swaps,
caps, floors, collars, forward interest rate agreements and similar agreements.
"Investment" means, with respect to any Person, any advance,
loan or other extension of credit (including, without limitation, by means of
any guarantee) or any capital contribution to (by means of transfer of property
to others, payment for property or services for the account or use of others, or
otherwise), or any purchase or other acquisition of any Equity Interests, bonds,
notes, debentures or other securities of, any such Person. In addition, any
foreign exchange contract, currency swap agreement or other similar agreement
made or entered into by any Person shall constitute an Investment by such
Person.
"Issue Date" means the date of original issuance of Securities
under this Indenture.
"Issuers" means the Company and FinCo.
"legal defeasance" has the meaning provided in Section 8.2.
"Legal Holiday" means any day other than a Business Day.
"Lien" means any mortgage, charge, pledge, lien (statutory or
other), security interest, hypothecation or assignment for security.
"Lucent Credit Facility" means the credit facility
contemplated by the commitment letter dated June 21, 1996 between the Company
and Lucent Technologies, Inc., as the same may be amended, modified, renewed,
refunded, replaced or refinanced from time to time.
"Material Restricted Subsidiary" means any Restricted
Subsidiary which, at any date of determination, is (i) a "Significant
Subsidiary" (as that term is defined in Regulation S-X, as in effect on the
Issue Date, issued under the Securities Act), and/or (ii) holds any FCC license
for the transmission of wireless telecommunications services and/or (iii) any of
WirelessCo, RealtyCo or EquipmentCo.
"Maturity Date" means, with respect to any Security, the date
specified in such Security as the fixed date on which principal of such Security
is due and payable.
"Moody's" means Moody's Investors Service, Inc.
"Net Cash Proceeds" means, with respect to any Asset Sale, the
proceeds therefrom in the form of cash or Cash Equivalents, including payments
in respect of deferred payment obligations when received in the form of cash or
Cash Equivalents, net of (i) brokerage commissions and other fees and expenses
(including fees and expenses of legal counsel and investment bankers) related to
such Asset Sale, (ii) provisions for all taxes payable as a result of such Asset
Sale, (iii) amounts required to be paid to any Person (other than the Company or
any Restricted Subsidiary) owning a beneficial interest in or having a Lien on
the assets subject to the Asset Sale and (iv) appropriate amounts to be provided
by the Company or any Restricted Subsidiary, as the case may be, as a reserve
required in accordance with GAAP against any liabilities associated with such
Asset Sale and retained by the Company or any Restricted Subsidiary, as the case
may be, after such Asset Sale, including, without limitation, pension and other
post-employment benefit liabilities and liabilities under any indemnification
obligations associated with such Asset Sale.
"Nortel Credit Facility" means the credit facility
contemplated by the commitment letter dated June 11, 1996 between the Company
and Northern Telecom Inc., as the same may be amended, modified, renewed,
refunded, replaced or refinanced from time to time.
"Obligations" means any principal of and interest on, and any
other amounts owing in respect of, the Securities payable pursuant to the terms
of the Securities or this Indenture or upon acceleration, including amounts
received upon the exercise of rights of rescission or other rights of action
(including claims for damages) or otherwise, to the extent relating to the
purchase price of the Securities or amounts corresponding to such principal of,
interest on, or other amounts owing with respect to, the Securities.
"Officer" means the Chief Executive Officer, Chairman of the
Partnership Board, the President, any Vice President, the Chief Financial
Officer, the Treasurer, the Secretary, the Chief Technology Officer, the Chief
Business Development Officer, the Chief Public Relations Officer or any Director
or Partnership Board Representative of either of the Issuers or any Subsidiary
Guarantor, as the case may be.
"Officers' Certificate" means a certificate signed by two
Officers or by an Officer and an Assistant Treasurer or Assistant Secretary of
either of the Issuers or any Subsidiary Guarantor, as the case may be.
"Opinion of Counsel" means a written opinion from legal
counsel who is acceptable to the Trustee, which may include an individual
employed as counsel to an Issuer or a Subsidiary Guarantor.
"Other Senior Debt Pro Rata Share" means the amount of the
applicable Excess Proceeds obtained by multiplying the amount of such Excess
Proceeds by a fraction, (i) the numerator of which is the aggregate accreted
value and/or principal amount, as the case may be, of all Indebtedness (other
than (x) the Securities and (y) Subordinated Indebtedness) of an Issuer and any
Subsidiary Guarantor outstanding at the time of the Asset Sale with respect to
which an Issuer or a Subsidiary Guarantor, as the case may be, is required to
use Excess Proceeds to repay or make an offer to purchase or repay and (ii) the
denominator of which is the sum of (a) the aggregate principal amount of all
Securities outstanding at the time of the Asset Sale, (b) the aggregate Accreted
Value of all Senior Discount Notes outstanding at the time of the Asset Sale and
(c) the aggregate principal amount or the aggregate accreted value, as the case
may be, of all other Indebtedness (other than Subordinated Indebtedness) of an
Issuer or a Subsidiary Guarantor outstanding at the time of the Asset Sale with
respect to which an Issuer or a Subsidiary Guarantor, as the case may be, is
required to use the Excess Proceeds to offer to repay or make an offer to
purchase or repay.
"Pari Passu Debt Securities" means any Debt Securities (and
any guarantee of any Debt Security) which would not constitute Subordinated
Indebtedness.
"Partners" means, collectively, Sprint Enterprises, L.P., TCI
Telephony Services, Inc., Comcast Telephony Service and Cox Telephony
Partnership, to the extent they are Partners in Holdings and any permitted
transferee of such Partner's interest pursuant to the Holdings Partnership
Agreement.
"Paying Agent" has the meaning provided in Section 2.3.
"Permitted Assets" means property or assets that will be used
in a Permitted Business referred to in clause (i) of the definition of
"Permitted Business" (or Equity Interests of any Person that will become a
Restricted Subsidiary as a result of the applicable Asset Sale to the extent
such Person's operations consist of such a Permitted Business).
"Permitted Business" means (i) the delivery or distribution of
telecommunications, voice, data or video services, (ii) any business or activity
reasonably related thereto, including, without limitation, any business
conducted by the Company or any Restricted Subsidiary on the Issue Date and the
acquisition, holding or exploitation of any license relating to the delivery of
the services described in clause (i) of this definition or (iii) any other
business or activity in which the Company and the Restricted Subsidiaries are
expressly contemplated to be engaged pursuant to the provisions of the Holdings
Partnership Agreement as in effect on the Issue Date.
"Permitted Holder" means (i) each of Sprint Corporation,
Tele-Communications, Inc., Comcast Corporation and Cox Communications, Inc. and
the respective successors (by merger, consolidation, transfer or otherwise) to
all or substantially all of the respective businesses and assets of the
foregoing, (ii) any transferee of the assets resulting from a Permitted
Transaction and (iii) each Person controlled by one or more Persons identified
in clause (i) or (ii) of this definition.
"Permitted Investments" means any of the following: (i)
Investments in any Restricted Subsidiary (including any Person that pursuant to
such Investment becomes a Restricted Subsidiary) and any Person that is merged
or consolidated with or into, or transfers or conveys all or substantially all
of its assets to, the Company or any Restricted Subsidiary at the time such
Investment is made; (ii) Investments in Cash Equivalents; (iii) Investments in
Currency Agreements and Interest Rate Protection Obligations permitted by
Section 4.8; (iv) loans or advances to officers or employees of the Company and
the Restricted Subsidiaries in the ordinary course of business for bona fide
business purposes of the Company and the Restricted Subsidiaries (including
travel and moving expenses) not in excess of $5.0 million in the aggregate at
any one time outstanding; (v) Investments in evidences of Indebtedness,
securities or other property received from another Person by the Company or any
of the Restricted Subsidiaries in connection with any bankruptcy proceeding or
by reason of a composition or readjustment of debt or a reorganization of such
Person or as a result of foreclosure, perfection or enforcement of any Lien in
exchange for evidences of Indebtedness, securities or other property of such
Person held by the Company or any of the Restricted Subsidiaries, or for other
liabilities or obligations of such other Person to the Company or any of the
Restricted Subsidiaries that were created in accordance with the terms of this
Indenture; and (vi) Investments made by the Company and the Restricted
Subsidiaries as a result of consideration received in connection with an Asset
Sale made in compliance with Section 4.13.
"Permitted Transaction" with respect to a Partner means a
transaction or series of related transactions in which (i) such Partner ceases
to be a Subsidiary of its Parent or such Partner Transfers its Interest to a
Person that is not a Controlled Affiliate of such Partner and (ii) the new
Parent of such Partner (or such Partner if it is its own Parent) or the Parent
of the transferee of the Interest after giving effect to such transaction, or
the last transaction in a series of related transactions, owns, directly and
indirectly through its Controlled Affiliates, all or a Substantial Portion of
the cable television system assets (in the case of a Cable Partner) or long
distance telecommunications business assets (in the case of Sprint Corporation)
owned by the Parent of such Partner, directly and indirectly through its
Controlled Affiliates, immediately prior to the commencement of such transaction
or series of transactions. As used herein, "Substantial Portion" means (x) in
the case of a Cable Partner, cable television systems serving 75% or more of the
aggregate number of basic subscribers served by cable television systems in the
United States of America (including its territories and possessions other than
Puerto Rico) owned by the Parent of such Cable Partner, directly and indirectly
through its Controlled Affiliates, and (y) in the case of Sprint Corporation,
long distance telecommunications business assets serving 75% or more of the
aggregate number of customers served by the long distance telecommunications
business in the United States of America (including its territories and
possessions other than Puerto Rico) owned by the Parent of Sprint Corporation,
directly and indirectly through its Controlled Affiliates. All capitalized terms
used in this definition and not otherwise defined in this Indenture shall have
the meanings ascribed to them in the Holdings Partnership Agreement.
"Person" means any individual, corporation, partnership,
limited liability company, joint venture, association, joint-stock company,
trust, unincorporated organization or government or any agency or political
subdivision thereof.
"principal" of a debt security (including the Securities)
means the principal amount of the security plus, when appropriate, the premium,
if any, on the security. Such amount shall, if applicable, be calculated by
reference to the last sentence of "Indebtedness."
"Public Equity Offering" means an underwritten public offering
of Common Equity Interests made on a primary basis by the Company, Holdings or a
Special Purpose Corporation pursuant to a registration statement filed with, and
declared effective by, the Commission in accordance with the Securities Act;
provided that Holdings or the Special Purpose Corporation, as the case may be,
shall contribute as equity to, or purchase Common Equity Interests in, the
Company with proceeds from the Initial Public Offering of not less than the
greater of (x) $100.0 million or (y) the amount required to effect any
redemption pursuant to Paragraph 7 of the Securities.
"RealtyCo" means Sprint Spectrum Realty Company, L.P., a
Delaware limited partnership.
"Redemption Date" means, with respect to any Security, the
date on which such Security is to be redeemed by the Company pursuant to the
terms of the Securities.
"Refinancing Indebtedness" means (i) Indebtedness of the
Company to the extent the proceeds thereof are used solely to refinance (whether
by amendment, renewal, extension or refunding) Indebtedness of the Company or
any of the Restricted Subsidiaries and (ii) Indebtedness of any Restricted
Subsidiary to the extent the proceeds thereof are used solely to refinance
(whether by amendment, renewal, extension or refunding) Indebtedness of such
Restricted Subsidiary, in each such event, incurred under the first paragraph of
Section 4.8 or clause (a) of the second paragraph of such Section; provided that
(a) the principal amount of Refinancing Indebtedness incurred pursuant to this
definition (or, if such Refinancing Indebtedness provides for an amount less
than the principal amount thereof to be due and payable upon a declaration of
acceleration of the maturity thereof, the accreted value of such Indebtedness)
shall not exceed the principal amount or accreted value, as the case may be, of
the Indebtedness refinanced, plus the amount of any premium required to be paid
in connection with such refinancing pursuant to the terms of such Indebtedness
or the amount of any premium reasonably determined by the Board of the Company
as necessary to accomplish such refinancing by means of a tender offer or
privately negotiated purchase, plus the amount of reasonable expenses in
connection therewith and (b) in the case of Refinancing Indebtedness incurred by
an Issuer or a Subsidiary Guarantor, such Indebtedness has an Average Life to
Stated Maturity greater than or equal to either (A) the Average Life to Stated
Maturity of the Indebtedness refinanced or (B) the remaining Average Life to
Stated Maturity of the Securities and (iii) if the Indebtedness to be refinanced
is Subordinated Indebtedness of an Issuer or a Subsidiary Guarantor, the
Indebtedness to be incurred pursuant to this definition shall also be
Subordinated Indebtedness of the Issuer or the Subsidiary Guarantor, as
applicable, whose Indebtedness is to be refinanced.
"Registrar" has the meaning provided in Section 2.3.
"Replacement Assets" has the meaning provided in Section 4.13.
"Resolution" means, with respect to any Person, a copy of a
resolution certified by the Secretary or Assistant Secretary of such Person to
have been duly adopted by its Board and to be in full force and effect on the
date of such certification, and delivered to the Trustee.
"Restricted Payment" means any of the following: (i) the
declaration or payment of any dividend or distribution on Equity Interests of
the Company or any Restricted Subsidiary or any payment made to the direct or
indirect holders (in their capacities as such), including any Special Purpose
Corporation, of Equity Interests of the Company or any Restricted Subsidiary
(other than dividends or distributions) (a) payable solely in Equity Interests
(other than Disqualified Equity Interests) of the Company or in options,
warrants or other rights to purchase Equity Interests (other than Disqualified
Equity Interests) of the Company, (b) paid to the Company or a Wholly-Owned
Restricted Subsidiary or (c) paid in respect of Equity Interests of a Restricted
Subsidiary to Persons other than the Company or Wholly-Owned Restricted
Subsidiaries (on not more favorable than a pro rata basis with dividends or
distributions then being paid in respect of Equity Interests held by the Company
or a Wholly-Owned Restricted Subsidiary); (ii) the purchase, redemption or other
acquisition or retirement for value of any Equity Interests of the Company or a
Restricted Subsidiary (other than any such Equity Interests owned by the Company
or a Wholly-Owned Restricted Subsidiary); (iii) the making of any principal
payment on, or the purchase, redemption, defeasance or other acquisition or
retirement for value, prior to any scheduled maturity, scheduled repayment or
scheduled sinking fund payment, of any Subordinated Indebtedness of an Issuer or
any Subsidiary Guarantor (other than any such subordinated Indebtedness owned by
the Company or a Restricted Subsidiary); or (iv) the making of any Investment
(other than a Permitted Investment) in any Person (other than an Investment by a
Restricted Subsidiary in the Company or an Investment by the Company or a
Restricted Subsidiary in either (x) a Restricted Subsidiary or (y) a Person that
becomes a Restricted Subsidiary as a result of such Investment).
"Restricted Subsidiary" means any Subsidiary of the Company
that has not been designated by the Board of the Company, by a Resolution
delivered to the Trustee, as an Unrestricted Subsidiary pursuant to and in
compliance with Section 4.16. Any such Designation may be revoked by a
Resolution of the Company delivered to the Trustee, subject to the provisions of
such Section.
"Revocation" has the meaning provided in Section 4.16.
"S&P" means Standard & Poor's Corporation.
"Securities" means the 11% Senior Notes Due 2006 issued,
authenticated and delivered under this Indenture, as amended or supplemented
from time to time pursuant to the terms of this Indenture.
"Securities Act" means the Securities Act of 1933, as amended.
"Senior Discount Notes" means the 12 1/2% Senior Discount
Notes due 2006 of the Issuers.
"Senior Discount Notes Indenture" means the indenture
governing the Senior Discount Notes dated as of August 15, 1996 by and among the
Issuers and The Bank of New York, as Trustee, as amended or supplemented from
time to time.
"Special Purpose Corporation" means a corporation formed to
own Common Equity Interests of the Company or Holdings.
"Subordinated Debt Securities" means any Debt Securities (and
any guarantee of any Debt Security) that would constitute Subordinated
Indebtedness.
"Subordinated Indebtedness" of any Person means any
Indebtedness of such Person that is expressly subordinated in right of payment
to any other Indebtedness of such Person.
"Subsidiary" means, with respect to any Person, (i) any
corporation of which the outstanding Equity Interests having at least a majority
of the votes entitled to be cast in the election of directors shall at the time
be owned, directly or indirectly, by such Person, or (ii) any other Person of
which at least a majority in value of Equity Interests or Voting Equity
Interests is at the time, directly or indirectly, owned by such Person.
"Subsidiary Guarantee" has the meaning provided in Section
4.11.
"Subsidiary Guarantor" means a Restricted Subsidiary that
issues a Subsidiary Guarantee pursuant to Section 4.11.
"Surviving Entity" has the meaning provided in Section 5.1.
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code
ss.ss. 77aaa-77bbbb) as in effect on the date of this Indenture.
"Total Consolidated Indebtedness" means, at any date of
determination, an amount equal to the aggregate principal amount of all
Indebtedness of the Company and the Restricted Subsidiaries outstanding as of
the date of determination.
"Total Invested Capital" means, at any time of determination,
the sum of, without duplication, (i) the total amount of equity contributed to
the Company as set forth on the March 31, 1996 consolidated balance sheet of the
Company, plus (ii) the aggregate net cash proceeds received by the Company from
capital contributions or the issuance or sale of Equity Interests (other than
Disqualified Equity Interests but including Equity Interests issued upon the
conversion of convertible Indebtedness or from the exercise of options, warrants
or rights to purchase Equity Interests (other than Disqualified Equity
Interests)) subsequent to the Issue Date, other than to a Restricted Subsidiary,
plus (iii) the aggregate net cash proceeds received by the Company or any
Restricted Subsidiary from the sale, disposition or repayment of any Investment
made after the Issue Date and constituting a Restricted Payment in an amount
equal to the lesser of (a) the return of capital with respect to such Investment
and (b) the initial amount of such Investment, in either case, less the cost of
the disposition of such Investment, plus (iv) an amount equal to the
consolidated net Investment on the date of Revocation made by the Company and/or
any of the Restricted Subsidiaries in any Subsidiary that has been designated as
an Unrestricted Subsidiary after the Issue Date upon its redesignation as a
Restricted Subsidiary in accordance with Section 4.16, plus (v) Total
Consolidated Indebtedness, minus (vi) the aggregate amount of all Restricted
Payments (including any Designation Amount, but other than a Restricted Payment
of the type referred to in clause (iii)(b) of the third paragraph of Section
4.9) declared or made from and after the Issue Date.
"Trust Officer" means an officer or assistant officer of the
Trustee assigned to the corporate trustee department (or any successor group) of
the Trustee, or any successor to such department or, in the case of a successor
trustee, an officer or assistant officer assigned to the department, division or
group performing the corporate trust work of such successor.
"Trustee" means the party named as such in this Indenture
until a successor replaces it in accordance with the provisions of this
Indenture and thereafter means such successor.
"Unrestricted Subsidiary" means any Subsidiary of the Company
(other than FinCo, WirelessCo, RealtyCo and EquipmentCo) designated after the
Issue Date as such pursuant to and in compliance with Section 4.16. Any such
designation may be revoked by a Resolution of the Company delivered to the
Trustee, subject to the provisions of such Section 4.16.
"U.S. Government Obligations" has the meaning provided in
Section 8.2(d).
"U.S. Legal Tender" means such coin or currency of the United
States of America as at the time of payment shall be legal tender for the pay-
ment of public and private debts.
"Vendor Credit Facilities" means, collectively, (i) the Lucent
Credit Facility; (ii) the Nortel Credit Facility; and (iii) any other credit
facility entered into with any vendor or supplier (or any financial institution
acting on behalf of such a vendor or supplier); provided that, in the case of
each of clauses (i), (ii) and (iii), the Indebtedness thereunder is incurred
solely for the purpose of financing the cost (including the cost of design,
development, site acquisition, construction, integration, handset manufacture or
acquisition or microwave relocation) of wireless telecommunications networks or
systems or for which the Company or any Restricted Subsidiary has obtained the
applicable licenses or authorizations to utilize the radio frequencies necessary
for the operation of such systems or networks.
"Voting Equity Interests" means, with respect to any Person,
Equity Interests of any class or kind ordinarily having the power to vote for
the election of directors, managers or other voting members of the governing
body of such Person.
"Wholly-Owned Restricted Subsidiary" means any Restricted
Subsidiary of which 100% of the outstanding Equity Interests is owned by the
Company or another Wholly-Owned Restricted Subsidiary. For purposes of this
definition, (i) any directors' qualifying shares or investments by foreign
nationals mandated by applicable law and (ii) Equity Interests of a Person not
to exceed 1% of the total voting power of all outstanding Equity Interests of
such Person and representing a right to receive not greater than 1% of the
profits of such partnership shall be disregarded in determining the ownership of
a Restricted Subsidiary.
"Wholly-Owned Subsidiary" means, with respect to any Person,
any other Person 100% of whose outstanding Equity Interests are owned by such
Person or another Wholly-Owned Restricted Subsidiary of such Person. For
purposes of this definition, (i) any directors' qualifying shares or investments
by foreign nationals mandated by applicable law and (ii) Equity Interests of a
Person not to exceed 1% of the total voting power of all outstanding Equity
Interests of such Person and representing a right to receive not greater than 1%
of the profits of such partnership shall be disregarded in determining the
ownership of a Subsidiary.
"WirelessCo" means WirelessCo, L.P., a Delaware limited part-
nership.
SECTION I.2 Incorporation by Reference
of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the
provision shall be deemed incorporated by reference in and made a part of this
Indenture. The following TIA terms used in this Indenture have the following
meanings:
(a) "indenture securities" means the Securities;
(b) "indenture security holder" means a Holder or Securi-
tyholder;
(c) "indenture to be qualified" means this Indenture;
(d) "indenture trustee" or "institutional trustee" means
the Trustee; and
(e) "obligor" on the indenture securities means the Company,
FinCo, each Subsidiary Guarantor, if any, or any other obligor on the
Securities.
All other TIA terms used in this Indenture that are defined by
the TIA, defined by TIA reference to another statute or defined by Commission
rule and not otherwise defined herein have the meanings so assigned to them
therein.
SECTION I.3 Rules of Construction.
Unless the context otherwise requires:
(a) a term has the meaning assigned to it;
(b) "or" is not exclusive;
(c) words in the singular include the plural, and words
in the plural include the singular;
(d) "herein," "hereof" and other words of similar import
refer to this Indenture as a whole and not to any particular Article, Section or
other Subsection; and
(e) unless otherwise specified herein, all accounting terms
used herein shall be interpreted, all accounting determinations
hereunder shall be made, and all financial statements required to be
delivered hereunder shall be prepared in accordance with GAAP.
ARTICLE II
THE SECURITIES
SECTION II.1 Form and Dating.
The Securities and the Trustee's certificates of
authentication with respect thereto shall be substantially in the form set forth
in Exhibit A, which is annexed hereto and hereby incorporated in and expressly
made a part of this Indenture. The Securities may have notations, legends or
endorsements (including notations relating to any Subsidiary Guarantee) required
by law, rule or usage to which the Issuers or any Subsidiary Guarantor are
subject. Each Security shall be dated the date of its authentication. The terms
and provisions contained in the Securities shall constitute, and are expressly
made, a part of this Indenture.
SECTION II.2 Execution and Authentication.
Two Officers (each of whom shall have been duly authorized by
all requisite partnership or corporate action, as the case may be) shall execute
the Securities on behalf of each of the Issuers by manual or facsimile
signature.
If an Officer whose signature is on a Security no longer holds
that office at the time the Trustee authenticates the Security or at any time
thereafter, the Security shall be valid nevertheless.
A Security shall not be valid until an authorized officer of
the Trustee manually signs the certificate of authentication on the Security.
Such signature shall be conclusive evidence that the Security has been
authenticated under this Indenture.
The Trustee shall authenticate Securities for original issue
in an aggregate principal amount not to exceed $250,000,000 upon receipt of the
Officers' Certificates of each of the Issuers signed by two Officers of each of
the Issuers directing the Trustee to authenticate the Securities and certifying
that all conditions precedent to the issuance of the Securities contained herein
have been complied with. The aggregate principal amount of Securities
outstanding at any time may not exceed $250,000,000, except as provided in
Section 2.8.
The Trustee may appoint an authenticating agent acceptable to
the Issuers to authenticate Securities. Unless limited by the terms of such
appointment, an authenticating agent may authenticate Securities whenever the
Trustee may do so. Each reference in this Indenture to authentication by the
Trustee includes authentication by such agent. Such authenticating agent shall
have the same rights as the Trustee in any dealings hereunder with the Issuers
or with any of the Issuers' Affiliates.
The Securities shall be issuable in fully registered form
only, without coupons, in denominations of $1,000 principal amount and any
integral multiple thereof.
SECTION II.3 Registrar and Paying Agent.
The Issuers shall maintain an office or agency (which shall be
located in the Borough of Manhattan in The City of New York, State of New York)
where (a) Securities may be presented for registration of transfer or for
exchange (the "Registrar"), (b) Securities may be presented for payment (the
"Paying Agent") and (c) notices and demands to or upon the Issuers and any
Subsidiary Guarantor in respect of the Securities, the Subsidiary Guarantees and
this Indenture may be served. The Registrar shall keep a register of the
Securities and of their transfer and exchange. The Issuers may have one or more
co-registrars and one or more additional paying agents. The term "Paying Agent"
includes any additional paying agent. Neither the Issuers nor any Affiliate
thereof may act as Paying Agent.
The Issuers shall enter into an appropriate agency agreement
with any Agent not a party to this Indenture that shall incorporate the
provisions of the TIA. The agreement shall implement the provisions of this
Indenture that relate to such Agent. The Issuers shall notify the Trustee of the
name and address of any such Agent. If the Issuers fail to maintain a Registrar
or Paying Agent, or fail to give the foregoing notice, the Trustee shall act as
such.
The Company initially appoints the Trustee located at the
address set forth in Section 11.2 as Registrar, Paying Agent and agent for
service of notices and demands in connection with the Securities, any Subsidiary
Guarantee and this Indenture.
SECTION II.4 Paying Agent To Hold Money in Trust.
Each Paying Agent shall hold in trust for the benefit of the
Securityholders or the Trustee all money held by the Paying Agent for the
payment of principal of or interest on the Securities (whether such money has
been paid to it by the Issuers or any other obligor on the Securities), and the
Issuers and the Paying Agent shall notify the Trustee of any default by the
Issuers (or any other obligor on the Securities) in making any such payment.
Money held in trust by the Paying Agent need not be segregated except as
required by law and in no event shall the Paying Agent be liable for any
interest on any money received by it hereunder. The Issuers at any time may
require the Paying Agent to pay all money held by it to the Trustee and account
for any funds disbursed and the Trustee may at any time during the continuance
of any Event of Default specified in Section 6.1(a)(i) or (ii), upon written
request to the Paying Agent, require such Paying Agent to pay forthwith all
money so held by it to the Trustee and to account for any funds disbursed. Upon
making such payment, the Paying Agent shall have no further liability for the
money delivered to the Trustee.
SECTION II.5 Securityholder Lists.
The Trustee shall preserve in as current a form as is
reasonably practicable the most recent list available to it of the names and
addresses of the Holders of Securities. If the Trustee is not the Registrar, the
Issuers shall furnish to the Trustee at least five Business Days before each
Interest Payment Date, and at such other times as the Trustee may request in
writing, a list in such form and as of such date as the Trustee may reasonably
require of the names and addresses of the Holders of Securities, if any.
SECTION II.6 Transfer and Exchange.
(a) When Securities are presented to the Registrar or a
co-registrar with a request from the Holder of such Securities to register a
transfer, the Registrar shall register the transfer as requested. Every Security
presented or surrendered for registration of transfer or exchange shall be duly
endorsed or be accompanied by a written instrument of transfer in form
satisfactory to the Issuers and the Registrar, duly executed by the Holder
thereof or his attorneys duly authorized in writing.
At the option of the Holder, Securities may be exchanged for
other Securities of any authorized denomination or denominations, of a like
aggregate principal amount, upon surrender of the Securities to be exchanged at
the office or agency maintained for such purpose pursuant to Section 2.3.
To permit registrations of transfers and exchanges, the
Issuers shall issue and execute and the Trustee shall authenticate new
Securities evidencing such transfer or exchange at the Registrar's request.
SECTION II.7 Replacement Securities.
If a mutilated Security is surrendered to the Registrar or the
Trustee or if the Holder of a Security claims that the Security has been lost,
destroyed or wrongfully taken, the Issuers shall issue and the Trustee shall
authenticate a replacement Security. If required by the Trustee or the Issuers,
an indemnity bond shall be posted, sufficient in the judgment of each of the
Issuers and the Trustee to protect the Issuers, the Trustee or any Paying Agent
from any loss that any of them may suffer if such Security is replaced. The
Issuers may charge such Holder for the Issuers' reasonable out-of-pocket
expenses in replacing such Security and the Trustee may charge the Issuers for
the Trustee's expenses in replacing such Security. Every replacement Security
shall constitute an additional obligation of each of the Issuers.
SECTION II.8 Outstanding Securities.
Securities outstanding at any time are all Securities that
have been authenticated by the Trustee except for (a) those cancelled by it, (b)
those delivered to it for cancellation, (c) to the extent set forth in Sections
8.1 and 8.2, on or after the date on which the conditions set forth in Section
8.1 or 8.2 have been satisfied, those Securities theretofore authenticated and
delivered by the Trustee hereunder and (d) those described in this Section 2.8
as not outstanding. Subject to Section 2.9, a Security does not cease to be
outstanding because the Issuers or one of their Affiliates holds the Security.
If a Security is replaced pursuant to Section 2.7, it ceases
to be outstanding unless the Trustee receives an Officer's Certificate stating
that the replaced Security is held by a bona fide purchaser in whose hands such
Security is a legal, valid and binding obligation of each of the Issuers.
If the Paying Agent holds, in its capacity as such, on any
Maturity Date or on any optional redemption date, money sufficient to pay all
accrued interest and principal with respect to such Securities payable on that
date and is not prohibited from paying such money to the Holders thereof
pursuant to the terms of this Indenture, then on and after that date such
Securities cease to be outstanding and interest on them ceases to accrue.
SECTION II.9 Treasury Securities.
In determining whether the Holders of the required principal
amount of Securities have concurred in any declaration of acceleration or notice
of default or direction, waiver or consent or any amendment, modification or
other change to this Indenture, Securities owned by the Issuers or an Affiliate
of an Issuer shall be disregarded as though they were not outstanding, except
that for the purposes of determining whether the Trustee shall be protected in
relying on any such direction, waiver or consent or any amendment, modification
or other change to this Indenture, only Securities that the Trustee actually
knows are so owned shall be so disregarded.
SECTION II.10 Temporary Securities.
Until definitive Securities are prepared and ready for
delivery, the Issuers may prepare and the Trustee shall authenticate temporary
Securities. Temporary Securities shall be substantially in the form of
definitive Securities but may have variations that the Issuers consider
appropriate for temporary Securities. Without unreasonable delay, the Issuers
shall prepare and the Trustee shall authenticate definitive Securities in
exchange for temporary Securities. Until such exchange, temporary Securities
shall be entitled to the same rights, benefits and privileges as definitive
Securities.
SECTION II.11 Cancellation.
The Issuers at any time may deliver Securities to the Trustee
for cancellation. The Registrar and the Paying Agent shall forward to the
Trustee any Securities surrendered to them for registration of transfer,
exchange or payment or purchase. The Trustee shall cancel all Securities
surrendered for registration of transfer, exchange, payment, replacement or
cancellation or purchase and return such Securities to the Issuers. The Issuers
may not reissue or resell, or issue new Securities to replace, Securities that
the Issuers have redeemed or paid or purchased, or that have been delivered to
the Trustee for cancellation.
SECTION II.12 Defaulted Interest.
If the Issuers default on a payment of interest on the
Securities, they shall pay the defaulted interest, plus (to the extent permitted
by law) any interest payable on the defaulted interest, in accordance with the
terms hereof, to the Persons who are Holders of Securities on a subsequent
special record date, which date shall be at least five Business Days prior to
the payment date. The Issuers shall fix such special record date and payment
date in a manner satisfactory to the Trustee. At least 15 days before such
special record date, the Issuers shall mail to each Holder of Securities a
notice that states the special record date, the payment date and the amount of
defaulted interest, and interest payable on such defaulted interest, if any, to
be paid.
SECTION II.13 CUSIP Number.
The Issuers in issuing the Securities may use a "CUSIP"
number, and if so, such CUSIP number shall be included in notices of redemption
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 Securities and that reliance may be
placed only on the other identification numbers printed on the Securities. The
Issuers will promptly notify the Trustee of any change in the CUSIP number.
SECTION II.14 Deposit of Moneys.
On each Interest Payment Date and Maturity Date and on any
Business Day immediately following any acceleration of the Securities pursuant
to Section 6.2, the Issuers shall have deposited with the Paying Agent in
immediately available funds money sufficient to make cash payments, if any, due
on such Interest Payment Date, Maturity Date or Business Day, as the case may
be, in a timely manner that permits the Trustee to remit payment to the Holders
on such Interest Payment Date, Maturity Date or Business Day, as the case may
be.
ARTICLE III
REDEMPTION
SECTION III.1 Election To Redeem; Notices to Trustee.
If the Issuers elect to redeem Securities pursuant to
Paragraph 6 or 7 of the Securities, they shall notify the Trustee and the Paying
Agent in writing of the Redemption Date and the principal amount of Securities
to be redeemed.
The Issuers shall give each notice provided for in this
Section 3.1 at least 30 days before the Redemption Date (unless a shorter notice
shall be agreed to by the Trustee in writing), together with an Officers'
Certificate of each of the Issuers stating that such redemption will comply with
the conditions contained herein and in the Securities.
SECTION III.2 Selection of Securities To Be Redeemed.
If less than all of the Securities are to be redeemed, the
Trustee shall select the Securities to be redeemed in compliance with the
requirements of the principal national securities exchange, if any, on which the
Securities are listed or, if the Securities are not then listed on a national
securities exchange, on a pro rata basis, by lot or by such other method as the
Trustee deems fair and appropriate; provided that any redemption pursuant to
Paragraph 7 of the Securities shall be made on a pro rata basis or on as nearly
a pro rata basis as is practicable (subject to the procedures of The Depository
Trust Company) based on the aggregate principal amount of Securities held by
each Holder. The Trustee shall make the selection from the Securities
outstanding and not previously called for redemption. The Trustee shall promptly
notify the Issuers in writing of such Securities selected for redemption and, in
the case of Securities selected for partial redemption, the principal amount to
be redeemed. The Trustee may select for redemption portions of the principal
amount of Securities that have denominations equal to or larger than $1,000
principal amount. Securities and portions of them the Trustee selects shall be
in amounts of $1,000 principal amount or integral multiples thereof. Provisions
of this Indenture that apply to Securities called for redemption also apply to
portions of Securities called for redemption.
SECTION III.3 Notice of Redemption.
At least 30 days but not more than 60 days before a Redemption
Date, the Issuers shall mail or cause the mailing of a notice of redemption by
first-class mail to each Holder of Securities to be redeemed at such Holder's
registered address. A copy of such notice shall be mailed to the Trustee on the
same day the notice is mailed to Holders of Securities.
The notice shall identify the Securities to be redeemed and
shall state:
(a) the Redemption Date;
(b) the paragraph of the Securities pursuant to which the
Securities are being redeemed;
(c) the redemption price and the amount of accrued
interest, if any, to be paid;
(d) the name and address of the Paying Agent;
(e) that Securities called for redemption must be
surrendered to the Paying Agent to collect the redemption price and accrued
interest, if any;
(f) that, unless the Issuers default in making the redemption
payment, interest on Securities called for redemption ceases to accrue
on and after the Redemption Date and the only remaining right of the
Holders of such Securities is to receive payment of the redemption
price upon surrender to the Paying Agent of the Securities redeemed;
(g) if any Security is to be redeemed in part, the portion of
the principal amount (equal to $1,000 or any integral multiple thereof)
of such Security to be redeemed and that, on or after the Redemption
Date, upon surrender of such Security, a new Security or Securities in
aggregate principal amount equal to the unredeemed portion thereof will
be issued without charge to the Securityholder;
(h) if less than all of the Securities are to be redeemed, the
identification of the particular Securities (or portion thereof) to be
redeemed, as well as the aggregate principal amount of Securities to be
redeemed and the aggregate principal amount of Securities to be
outstanding after such partial redemption; and
(i) the CUSIP number, if any, pursuant to Section 2.13.
At the Issuers' request, the Trustee shall give the notice of
redemption in the Issuers' name and at the Issuers' expense.
SECTION III.4 Effect of Notice of Redemption.
Once notice of redemption is mailed, Securities called for
redemption become due and payable on the Redemption Date and at the redemption
price. Upon surrender to the Paying Agent, such Securities shall be paid at the
redemption price plus accrued interest, if any, to the Redemption Date, but
interest installments whose maturity is on or prior to such Redemption Date will
be payable on the relevant Interest Payment Dates to the Holders that would
otherwise have been entitled thereto pursuant to this Indenture and the
Securities.
SECTION III.5 Deposit of Redemption Price.
At least one Business Day prior to the Redemption Date, the
Issuers shall deposit with the Paying Agent U.S. Legal Tender sufficient to pay
the redemption price of and accrued interest, if any, on all Securities or
portions thereof to be redeemed on that date.
If any Security surrendered for redemption in the manner
provided in the Securities shall not be so paid on the Redemption Date due to
the failure of the Issuers to deposit with the Paying Agent U.S. Legal Tender,
the principal and accrued and unpaid interest, if any, thereon shall, until paid
or duly provided for, bear interest as provided in Section 4.1 with respect to
any payment default.
SECTION III.6 Securities Redeemed in Part.
Upon the surrender to the Paying Agent of a Security that is
redeemed in part, the Issuers shall execute and the Trustee shall authenticate
for the Holder a new Security equal in principal amount to the principal amount
of the unredeemed portion of the Security surrendered.
ARTICLE IV
COVENANTS
SECTION IV.1 Payment of Securities.
The Issuers shall pay the principal of and interest on the
Securities on the dates and in the manner provided in the Securities and this
Indenture.
An installment of principal or interest shall be considered
paid on the date due if the Trustee or the Paying Agent holds on such date U.S.
Legal Tender designated for and sufficient to pay such installment.
The Issuers shall pay cash interest on overdue principal and
(to the extent permitted by law) on overdue installments of interest at the rate
borne by the Securities. Interest will be computed on the basis of a 360-day
year comprised of twelve 30-day months.
SECTION IV.2 Maintenance of Office or Agency.
The Issuers shall maintain the office or agency required under
Section 2.3. The Issuers will give prompt written notice to the Trustee of the
location, and any change in the location, of each such office or agency. If at
any time the Issuers shall fail to maintain any such required office or agency
or shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the
address of the Trustee set forth in Section 11.2.
The Issuers may also from time to time designate one or more
other offices or agencies where the Securities may be presented or surrendered
for any or all such purposes and may from time to time rescind such
designations; provided that no such designation or rescission shall in any
manner relieve the Issuers of their obligation to maintain an office or agency
in the Borough of Manhattan, The City of New York, for such purposes. The
Issuers 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 Issuers hereby initially designate the corporate trust
office of the Trustee set forth in Section 11.2 as an agency of the Issuers with
respect to the Securities in accordance with Section 2.3.
SECTION IV.3 Corporate or Partnership Existence.
Subject to Article V, the Issuers shall do or cause to be
done, at their own cost and expense, all things necessary to, and will cause
each Restricted Subsidiary to, preserve and keep in full force and effect the
corporate or partnership existence and rights (charter and statutory), licenses
and/or franchises of each of the Issuers and each Restricted Subsidiary;
provided that none of the Issuers or any Restricted Subsidiaries shall be
required to preserve any such rights, licenses or franchises if such rights,
licenses or franchises will be replaced or if the Board of the Company shall
reasonably determine that the preservation thereof is no longer desirable in the
conduct of the business of the Issuers or such Restricted Subsidiary, as the
case may be, and the loss thereof is not adverse in any material respect to the
Holders; provided, further, that any Restricted Subsidiary may be wound up and
liquidated into an Issuer or any other Restricted Subsidiary.
SECTION IV.4 Payment of Taxes and Other Claims.
The Issuers shall pay or discharge or cause to be paid or
discharged, before the same shall become delinquent, (a) all taxes, assessments
and governmental charges levied or imposed upon their or their Subsidiaries'
income, profits or property and (b) all lawful claims for labor, materials and
supplies that, if unpaid, might by law become a Lien upon the property of an
Issuer or a Restricted Subsidiary; provided that the Issuers shall not be
required to pay or discharge or cause to be paid or discharged any such tax,
assessment, charge or claim whose amount, applicability or validity is being
contested in good faith by appropriate negotiations or proceedings and for which
disputed amounts any reserves required in accordance with GAAP have been made.
SECTION IV.5 Maintenance of Properties; Insurance;
Books and Records; Compliance with Law.
(a) Each of the Issuers shall, and shall cause each of the
Restricted Subsidiaries to, at all times cause all properties used or useful in
the conduct of its business to be maintained and kept in good condition, repair
and working order (reasonable wear and tear excepted) and supplied with all
necessary equipment, and shall cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereto.
(b) Each of the Issuers shall, and shall cause each of the
Restricted Subsidiaries to, maintain insurance (which may include
self-insurance) in such amounts and covering such risks as are usually and
customarily carried with respect to similar facilities according to their
respective locations.
(c) Each of the Issuers shall, and shall cause each of the
Subsidiaries to, keep proper books of record and account, in which full and
correct entries shall be made of all of its financial transactions and the
assets and business, in accordance with GAAP consistently applied.
(d) Each of the Issuers shall and shall cause each of the
Subsidiaries to comply with all statutes, laws, ordinances, or government rules
and regulations to which it is subject, non-compliance with which would
materially adversely affect the business, earnings, properties, assets or
financial condition of the Issuers and the Restricted Subsidiaries, taken as a
whole.
SECTION IV.6 Compliance Certificates.
(a) Each of the Issuers shall deliver to the Trustee, within
45 days after the end of each of the first three quarters of the Issuers' fiscal
year, and within 90 days after the end of such fiscal year, an Officers'
Certificate stating (i) that a review of the activities of the respective Issuer
during the preceding fiscal quarter or year, as the case may be, has been made
under the supervision of the signing Officers with a view to determining whether
the respective Issuer has kept, observed, performed and fulfilled its
obligations under this Indenture and (ii) that, to the best knowledge of each
Officer signing such certificate, the respective Issuer has kept, observed,
performed and fulfilled each and every covenant and condition contained in this
Indenture and is not in default in the performance or observance of any of the
terms, provisions, conditions and covenants hereof (or, if a Default or Event of
Default shall have occurred, describing all such Defaults or Events of Default
of which such Officers may have knowledge, their status and what action the
defaulting Issuer is taking or proposes to take with respect thereto).
(b) The annual financial statements delivered pursuant to
Section 4.7 shall be accompanied by a written statement of the Company's
independent public accountants that in making the examination necessary for
certification of such annual financial statements nothing as to which such
accountants have professional competence has come to their attention that would
lead them to believe that either of the Issuers has violated any provisions of
this Indenture as to which such accountants have professional competence, 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.
(c) Each of the Issuers shall, so long as any of the
Securities are outstanding, deliver to the Trustee, promptly after any Officer
of either of the Issuers becomes aware of any Default or Event of Default, an
Officers' Certificate specifying such Default or Event of Default and what
action the applicable Issuer is taking or proposes to take with respect thereto.
SECTION IV.7 Reports.
So long as any of the Securities are outstanding, the Company
will file with the Commission the annual reports, quarterly reports and other
documents that the Company would have been required to file with the Commission
pursuant to Sections 13(a) and 15(d) of the Exchange Act whether or not the
Company is then obligated to file reports pursuant to such Sections, and the
Company will promptly provide to all registered Holders of the Securities and
file, within 30 days of filing with the Commission, with the Trustee copies of
such reports and documents.
Delivery of such reports, information and documents to the
Trustee is for informational purposes only and the Trustee's receipt of such
shall not constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Issuers'
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
SECTION IV.8 Limitation on Additional
Indebtedness.
The Company will not, and will not permit any Restricted
Subsidiary to, create, incur, assume, issue, guarantee or in any other manner
become directly or indirectly liable, contingently or otherwise, for or with
respect to (in any such case, to "incur") any Indebtedness (including any
Acquired Indebtedness); provided that the Issuers and the Restricted
Subsidiaries may incur Indebtedness (including Acquired Indebtedness) if after
giving pro forma effect to such incurrence (including the application or use of
the net proceeds therefrom to repay Indebtedness or make any Restricted Payment)
either (a) the ratio of (x) Total Consolidated Indebtedness to (y) Annualized
Pro Forma Consolidated Operating Cash Flow would be less than (A) 7.0 to 1.0, if
the Indebtedness is to be incurred prior to July 1, 2002, or (B) 6.0 to 1.0, if
the Indebtedness is to be incurred on or after July 1, 2002, or (b) in the case
of any incurrence of Indebtedness prior to July 1, 2002 only, Total Consolidated
Indebtedness would be equal to or less than 70% of Total Invested Capital.
Notwithstanding the foregoing, the Issuers and, to the extent
specified, the Restricted Subsidiaries will be permitted to incur each and all
of the following (each of which shall be given independent effect):
(a) Indebtedness under the Securities, any Subsidiary
Guarantee and this Indenture;
(b) Indebtedness of the Issuers and the Restricted Sub-
sidiaries outstanding from time to time pursuant to any of the Vendor Credit
Facilities;
(c) Indebtedness of the Issuers and the Restricted
Subsidiaries outstanding from time to time pursuant to the Bank Credit
Facility in an aggregate principal amount at any one time outstanding
not to exceed $2.0 billion;
(d) Indebtedness of an Issuer or a Restricted Subsidiary owed
to and held by an Issuer or another Restricted Subsidiary so long as
any such Indebtedness owing by an Issuer is unsecured and subordinated
in right of payment to the Securities, except that (x) any direct or
indirect transfer of such Indebtedness by an Issuer or a Restricted
Subsidiary (other than to an Issuer or a Restricted Subsidiary), as the
case may be, or (y) any direct or indirect sale, transfer or other
disposition by an Issuer or a Restricted Subsidiary of Equity Interests
of a Restricted Subsidiary that is owed Indebtedness of an Issuer or a
Restricted Subsidiary such that it ceases to be a Restricted Subsidiary
shall, in each such event, be an incurrence of Indebtedness by the
Issuer or such Restricted Subsidiary, as the case may be, subject to
the other provisions of this Section 4.8;
(e) Interest Rate Protection Obligations of an Issuer or a
Restricted Subsidiary relating to Indebtedness of an Issuer or a
Restricted Subsidiary otherwise permitted under this Indenture that are
entered into for the purpose of protecting against fluctuations in
interest rates in respect of such Indebtedness and not for speculative
purposes;
(f) Indebtedness of an Issuer or a Restricted Subsidiary under
Currency Agreements; provided that (x) such Currency Agreements relate
to Indebtedness otherwise permitted under this Indenture or the
purchase price of goods purchased or sold by an Issuer or a Restricted
Subsidiary in the ordinary course of its business and (y) such Currency
Agreements do not increase the Indebtedness or other obligations of an
Issuer or a Restricted Subsidiary outstanding other than as a result of
fluctuations in foreign currency exchange rates or by reason of fees,
indemnities and compensation payable thereunder;
(g) Indebtedness of an Issuer or a Restricted Subsidiary
represented by letters of credit for the account of an Issuer or a
Restricted Subsidiary in order to provide security for workers'
compensation claims, payment obligations in connection with
self-insurance or similar requirements in the ordinary course of
business;
(h) other Indebtedness of the Issuers and the Restricted
Subsidiaries in an aggregate principal amount not to exceed $100 million at any
one time outstanding; and
(i) Refinancing Indebtedness.
Indebtedness of a Person existing at the time such Person
becomes a Restricted Subsidiary or which is secured by a Lien on an asset
acquired by the Company or a Restricted Subsidiary (whether or not such
Indebtedness is assumed by the acquiring Person) shall be deemed incurred at the
time the Person becomes a Restricted Subsidiary or at the time of the asset
acquisition, as the case may be.
SECTION IV.9 Limitation on Restricted Payments.
The Company will not, and will not permit any of the
Restricted Subsidiaries to, make, directly or indirectly, any Restricted Payment
on or prior to December 31, 1999; and, thereafter, will not, and will not permit
any of the Restricted Subsidiaries to, make, directly or indirectly, any
Restricted Payments unless:
(i) no Default shall have occurred and be continuing at
of or after giving effect to such Restricted Payment;
(ii) immediately after giving effect to such Restricted
Payment, the Company would be able to incur $1.00 of additional
Indebtedness under clause (a) of the proviso to the first paragraph of
Section 4.8; and
(iii) immediately after giving effect to such Restricted
Payment, the aggregate amount of all Restricted Payments declared or
made on or after the Issue Date (including any Designation Amount)
would not exceed an amount equal to the sum of, without duplication,
(1) the amount of (x) the Available Operating Cash Flow of the Company
after December 31, 1999 through the end of the latest full fiscal
quarter for which consolidated financial statements of the Company are
available preceding the date of such Restricted Payment (treated as a
single accounting period) less (y) 150% of the cumulative Consolidated
Interest Expense of the Company after December 31, 1999 through the end
of the latest full fiscal quarter for which consolidated financial
statements of the Company are available preceding the date of such
Restricted Payment (treated as a single accounting period), plus (2)
the aggregate net cash proceeds (other than Excluded Cash Proceeds)
received by the Company as a capital contribution in respect of
existing Equity Interests (other than Disqualified Equity Interests) of
the Company made after the Issue Date or from the issue or sale (other
than to a Restricted Subsidiary) by the Company of its Equity Interests
(other than Disqualified Equity Interests) made after the Issue Date,
plus (3) the aggregate net cash proceeds received by the Company or any
Restricted Subsidiary from the sale, disposition or repayment (other
than to the Company or a Restricted Subsidiary) of any Investment
(other than an Investment made pursuant to clause (vi) of the following
paragraph) made after the Issue Date and constituting a Restricted
Payment in an amount equal to the lesser of (x) the return of capital
with respect to such Investment and (y) the initial amount of such
Investment, in either case, less the cost of disposition of such
Investment, plus (4) an amount equal to the consolidated net Investment
on the date of Revocation made by the Company and/or any of the
Restricted Subsidiaries in any Subsidiary that has been designated as
an Unrestricted Subsidiary after the Issue Date upon its redesignation
as a Restricted Subsidiary in accordance with Section 4.16. For
purposes of the preceding clause (2), the value of the aggregate net
cash proceeds received by the Company upon the issuance of Equity
Interests either upon the conversion of convertible Indebtedness or in
exchange for outstanding Indebtedness or upon the exercise of options,
warrants or rights will be the net cash proceeds received upon the
issuance of such Indebtedness, options, warrants or rights plus the
incremental amount received by the Company upon the conversion,
exchange or exercise thereof.
For purposes of determining the amount expended for Restricted
Payments, cash distributed shall be valued at the face amount thereof and
property other than cash shall be valued at its Fair Market Value.
The provisions of this Section 4.9 shall not prohibit (i) the
payment of any dividend or distribution within 60 days after the date of
declaration thereof, if at such date of declaration such payment would comply
with the provisions of this Indenture; (ii) so long as no Default shall have
occurred and be continuing, the purchase, redemption, retirement or other
acquisition of any Equity Interests of the Company out of the net cash proceeds
of the substantially concurrent capital contribution in respect of existing
Equity Interests (other than Disqualified Equity Interests) of the Company or
from the issue or sale (other than to a Restricted Subsidiary) of Equity
Interests (other than Disqualified Equity Interests) of the Company; provided
that any such net cash proceeds are excluded from clause (iii)(2) of the second
preceding paragraph; (iii) so long as no Default shall have occurred and be
continuing, the purchase, redemption, retirement, defeasance or other
acquisition of Subordinated Indebtedness of an Issuer made by exchange for or
conversion into, or out of the net cash proceeds of, a concurrent issue and sale
(other than to a Restricted Subsidiary) of (a) Equity Interests (other than
Disqualified Equity Interests) of the Company (provided that any such net cash
proceeds are excluded from clause (iii)(2) of the second preceding paragraph) or
(b) other Subordinated Indebtedness of an Issuer that has an Average Life to
Stated Maturity equal to or greater than the Average Life to Stated Maturity of
the Subordinated Indebtedness being purchased, redeemed, retired, defeased or
otherwise acquired; (iv) so long as no Default shall have occurred and be
continuing, the making of a direct or indirect Investment constituting a
Restricted Payment out of the proceeds of a concurrent capital contribution in
respect of existing Equity Interests (other than Disqualified Equity Interests)
of the Company or from the issue or sale (other than to a Restricted Subsidiary)
of Equity Interests (other than Disqualified Equity Interests) of the Company;
provided that any such net cash proceeds are excluded from clause (iii)(2) of
the second preceding paragraph; (v) so long as no Default shall have occurred or
be continuing and provided the Company is then a partnership for federal income
tax purposes, distributions in respect of, and repurchases of, Equity Interests
of the Company owned by the Partners, to the extent necessary to pay current tax
liabilities payable in respect of income of the Company in an amount not to
exceed in any calendar year the product of (a) the ordinary income from trade or
business activities and giving effect to other items of income, loss and
deduction reported by the Company for the most recently ended tax year for
federal income tax purposes multiplied by (b) a percentage equal to the sum of
(x) the highest applicable federal corporate income tax rate for such tax year
(expressed as a percentage) plus (y) 5% multiplied by the excess of 100% over
the highest applicable federal corporate income tax rate for such tax year
(expressed as a percentage); provided that nothing in this clause (v) shall be
redeemed to permit any such distribution or repurchase to pay any tax
liabilities of the Company's partners resulting from the conversion of the
Company from partnership to corporate form; (vi) so long as no Default shall
have occurred and be continuing, any direct or indirect Investment constituting
a Restricted Payment by the Company or any Restricted Subsidiary in any Person
(including any Unrestricted Subsidiary) whose operations consist principally of,
or has been formed principally to operate, a Permitted Business in an amount not
to exceed $100 million in the aggregate at any time outstanding; or (vii) any
transfer of any Investment in APC held by the Company or any Restricted
Subsidiary to Holdings or any Wholly-Owned Subsidiary of Holdings; provided APC
has not been made a Restricted Subsidiary under Section 4.16.
Restricted Payments made pursuant to clause (i) of the
immediately preceding paragraph shall be included in making the determination of
available amounts under clause (iii) of the third preceding paragraph and
Restricted Payments made pursuant to clauses (ii), (iii), (iv), (v) and (vii) of
the immediately preceding paragraph shall not be included in making the
determination of available amounts under clause (iii) of the third preceding
paragraph.
SECTION IV.10 Limitation on Liens Securing
Certain Indebtedness.
The Company will not, and will not permit any Restricted
Subsidiary to, create, incur, assume or suffer to exist any Liens upon any
property or assets of the Company or any Restricted Subsidiary securing either
(i) Subordinated Debt Securities unless the Securities and the Subsidiary
Guarantees, as applicable, are secured by a Lien on such property or assets that
is senior in priority to the Liens securing such Subordinated Debt Securities or
(ii) Pari Passu Debt Securities unless the Securities and the Subsidiary
Guarantees, as applicable, are equally and ratably secured with the Liens
securing such Pari Passu Debt Securities.
SECTION IV.11 Limitation on Issuance of Certain
Guarantees by, and Debt Securities
of, Restricted Subsidiaries.
The Company will not permit (i) any Restricted Subsidiary to,
directly or indirectly, guarantee any Debt Securities of any of the Issuers or
(ii) any Restricted Subsidiary to issue any Debt Securities, unless, in either
such case, such Restricted Subsidiary simultaneously executes and delivers a
guarantee (a "Subsidiary Guarantee") of the Securities in accordance with
Article X. Any such Subsidiary Guarantee shall not be subordinate in right of
payment to any Indebtedness of the Restricted Subsidiary providing the
Subsidiary Guarantee.
SECTION IV.12 Limitation on Dividends and Other
Payment Restrictions Affecting
Restricted Subsidiaries.
The Company will not, and will not permit any Restricted
Subsidiary to, directly or indirectly, create or otherwise enter into or cause
to become effective any consensual encumbrance or restriction of any kind on the
ability of any Restricted Subsidiary to (i) pay dividends, in cash or otherwise,
or make any distributions on its Equity Interests or any other interest or
participation in, or measured by, its profits owned by the Company or any
Restricted Subsidiary, (ii) pay any Indebtedness owed to the Company or a
Restricted Subsidiary, (iii) make any Investment in the Company or any
Restricted Subsidiary or (iv) transfer any of its property or assets to the
Company or any Restricted Subsidiary, except for (a) any such customary
encumbrance or restriction contained in a security document creating a Lien
permitted under this Indenture to the extent relating to the property or asset
subject to such Lien (including, without limitation, customary restrictions
relating to assets securing any indebtedness under any of the Vendor Credit
Facilities or the Bank Credit Facility under the applicable security documents),
(b) any such encumbrance or restriction with respect to a Restricted Subsidiary
that is not a Restricted Subsidiary on the Issue Date, which encumbrance or
restriction is in existence at the time such Person becomes a Restricted
Subsidiary but not created in contemplation thereof and which encumbrance or
restriction pertains only to that Restricted Subsidiary and (c) any such
encumbrance or restriction imposed pursuant to an agreement that has been
entered into for the sale or disposition of all or substantially all of the
Equity Interests or assets of such Restricted Subsidiary.
SECTION IV.13 Disposition of Proceeds of
Asset Sales.
The Company will not, and will not permit any Restricted
Subsidiary to, make any Asset Sale unless (i) the Company or such Restricted
Subsidiary, as the case may be, receives consideration at the time of such Asset
Sale at least equal to the Fair Market Value of the assets sold or otherwise
disposed of and (ii) at least 80% of such consideration consists of cash or Cash
Equivalents; provided that the amount of any liabilities of the Company or such
Restricted Subsidiary that are assumed (and from which the Company or such
Restricted Subsidiary is unconditionally released) in connection with such Asset
Sale by the transferee or purchaser of such assets or on behalf of such
transferee or purchaser by a third party shall be deemed to be cash for purposes
of this clause (ii); provided, further, that up to $25.0 million of
consideration in the aggregate that is not in the form of cash or Cash
Equivalents may be received in excess of the amount permitted by the foregoing
provisions during the term of the Securities. The Company or the applicable
Restricted Subsidiary, as the case may be, may (i) apply such Net Cash Proceeds
within 365 days of receipt thereof to repay an amount of Indebtedness (other
than Subordinated Indebtedness) of an Issuer or any Subsidiary Guarantor of the
Company or any Subsidiary Guarantor in an amount not exceeding the Other Senior
Debt Pro Rata Share of Excess Proceeds and elect to permanently reduce the
amount of the commitments thereunder by the amount of the Indebtedness so
repaid, (ii) apply such Net Cash Proceeds within 365 days of the receipt thereof
to to repay Indebtedness (other than Subordinated Indebtedness) of any
Restricted Subsidiary (other than a Subsidiary Guarantor) and elect to
permanently reduce the amount of the commitments thereunder by the amount of the
Indebtedness so repaid or (iii) apply such Net Cash Proceeds within 365 days of
receipt thereof to an investment in properties and assets that will be used in a
Permitted Business (or in Equity Interests of any Person that will become a
Restricted Subsidiary as a result of such investment to the extent such Person's
operations consist of Permitted Businesses) of the Company or any Restricted
Subsidiary ("Replacement Assets"). Net Cash Proceeds from any Asset Sale that
are neither used as set forth in clause (ii) of the preceding sentence nor
invested in Replacement Assets within such 365-day period shall constitute
"Excess Proceeds." Any Excess Proceeds not used as set forth in clause (i) of
the second preceding sentence within such 365-day period shall constitute "Offer
Excess Proceeds" subject to disposition as set forth below.
When the aggregate amount of Offer Excess Proceeds equals or
exceeds $20.0 million, the Issuers shall make an offer to purchase Securities
(an "Asset Sale Offer"), on a Business Day not more than 60 days after the day
the amount of Offer Excess Proceeds equals or exceeds $20.0 million (an "Asset
Sale Payment Date") from all holders of Securities, at a price in cash equal to
100% of the principal amount of the Securities, plus accrued and unpaid
interest, if any, thereon to the applicable Asset Sale Payment Date. Each Asset
Sale Offer shall remain open for a period of 20 Business Days or such longer
period as may be required by law. To the extent that the aggregate purchase
price for the Securities tendered pursuant to an Asset Sale Offer is less than
the Offer Excess Proceeds available for such offer, the Company and the
Restricted Subsidiaries may use such deficiency for general partnership or
corporate purposes, as the case may be, including to repay after Indebtedness.
It is agreed that, notwithstanding anything herein to the contrary, if holders
of other Debt Securities (including the Senior Notes, but other than
Subordinated Indebtedness) of the Issuers or any Subsidiary Guarantor are
entitled to have a similar offer to purchase their Debt Securities made to them,
such other offer shall be conducted and consummated simultaneously with the
Asset Sale Offer for the Securities. If the aggregate Accreted Value and/or
principal amount of the Securities and other Debt Securities (other than
Subordinated Indebtedness) validly tendered pursuant to an Asset Sale Offer or
contractually required offer to purchase under this Indenture, the Senior
Discount Note Indenture or any instrument or agreement governing Debt Securities
(other than Subordinated Indebtedness) exceeds the Offer Excess Proceeds, the
Securities to be purchased will be selected on a pro rata basis among the
holders of Securities, Senior Discount Notes and such Debt Securities (based
upon the principal amount of the Securities, the Accreted Value of, the Senior
Discount Notes and/or the principal amount or accreted value, as the case may
be, of such Debt Securities tendered by each holder thereof). Upon completion of
such Asset Sale Offer, the amount of Excess Proceeds shall be reset to zero.
Notwithstanding the two immediately preceding paragraphs, the
Company and the Restricted Subsidiaries shall be permitted to consummate an
Asset Sale without complying with such paragraphs to the extent (i) at least 80%
of the consideration for such Asset Sale consists of cash, Cash Equivalents
and/or Permitted Assets and (ii) such consideration at the time of such Asset
Sale is at least equal to the Fair Market Value of the assets sold or otherwise
disposed of; provided that (x) any Net Cash Proceeds received by the Company or
any of the Restricted Subsidiaries in connection with any such Asset Sale shall
be subject to the provisions of the two immediately preceding paragraphs and (y)
if any of the assets disposed of are assets otherwise required to be held by
WirelessCo, RealtyCo or EquipmentCo under Section 4.18, the Permitted Assets
received shall be held by, or promptly transferred to, WirelessCo, RealtyCo or
EquipmentCo.
Not less than 30 nor more than 60 days before the Asset Sale
Payment Date, the Issuers shall send, by first class mail, a notice to every
Holder of Securities, with a copy to the Trustee and Paying Agent. The notice,
which shall govern the terms of the Asset Sale Offer, shall include such
disclosures as are required by law and shall state:
(1) that the Asset Sale Offer is being made pursuant to
this Section 4.13;
(2) the purchase price to be paid for Securities purchased
pursuant to the Asset Sale Offer (including the amount of accrued
interest, if any) and the Asset Sale Payment Date;
(3) that any Security not tendered will continue to
accrue interest;
(4) that, unless the Company defaults in making payment
therefor, any Security accepted for payment pursuant to the Asset Sale
Offer shall cease to accrue interest after the Asset Sale Payment Date;
(5) that Holders electing to have a Security purchased
pursuant to the Asset Sale Offer will be required to surrender the
Security, with the form entitled "Option of Holder to Elect Purchase"
on the reverse of the Security completed, to the Paying Agent at the
address specified in the notice prior to the close of business on the
Asset Sale Payment Date;
(6) that Holders will be entitled to withdraw their election
if the Paying Agent receives, not later than the second Business Day
prior to the Asset Sale Payment Date, a facsimile transmission or
letter setting forth the name of the Holder, the principal amount of
the Security the Holder delivered for purchase and a statement that
such Holder is withdrawing his election to have such Security
purchased; and
(7) that Holders whose Securities are purchased only in part
will be issued new Securities in a principal amount equal to the
unpurchased portion of the Securities surrendered.
On or before the Asset Sale Payment Date, the Company shall
(i) accept for payment Securities or portions thereof tendered pursuant to the
Asset Sale Offer in accordance with this Section 4.13, (ii) deposit with the
Paying Agent U.S. Legal Tender sufficient to pay the purchase price, plus
accrued interest, if any, of all Securities to be purchased in accordance with
this Section 4.13 and (iii) deliver to the Trustee Securities so accepted
together with an Officers' Certificate stating the Securities or portions
thereof being purchased by the Company. The Paying Agent shall promptly mail to
the Holders of Securities so accepted payment in an amount equal to the purchase
price, plus accrued interest, if any, thereon. For purposes of this Section
4.13, the Trustee shall act as the Paying Agent.
If the Company is required to make an Asset Sale Offer, the
Company will comply with all applicable tender offer laws and regulations,
including, to the extent applicable, Section 14(e) and Rule 14e-1 under the
Exchange Act, and any other applicable Federal or state securities laws and
regulations and any applicable requirements of any securities exchange on which
the Securities are listed.
SECTION IV.14 Limitation on Transactions with
Equityholders and Affiliates.
The Company will not, and will not permit, cause, or suffer
any Restricted Subsidiary to, conduct any business or enter into, renew or
extend any transaction or series of related transactions (including, without
limitation, the purchase, sale, lease or exchange of property or assets, or the
rendering of any service) with or for the benefit of any of their respective
Affiliates or any beneficial holder of 5% or more of any class of Equity
Interests of the Company (each an "Affiliate Transaction"), except on terms that
are no less favorable to the Company or such Restricted Subsidiary than those
that could reasonably be obtained in a comparable arm's-length transaction with
a Person that is not such a holder or Affiliate. Each Affiliate Transaction
involving aggregate payments or other Fair Market Value in excess of $15.0
million shall be approved by (i) if the Company is a Wholly-Owned Subsidiary of
Holdings, either (a) if the current provisions of Section 8.6 ("Interested Party
Transactions") of the Holdings Partnership Agreement are in effect, members of
the Board of Holdings exercising votes representing at least a majority (or such
other percentage vote as required by the Holdings Partnership Agreement) of
votes entitled to be exercised by members of such Board selected by the Partners
not having any financial interest in any such Affiliate Transaction, or (b) if
the current provisions of Section 8.6 ("Interested Party Transactions") of the
Holdings Partnership Agreement are not in effect, a majority of the
Disinterested Directors of Holdings, in each case, as evidenced by a Resolution
of the Board of Holdings and (ii) if the Company is not a Wholly-Owned
Subsidiary of Holdings, a majority of the Disinterested Directors of the Company
as evidenced by a Resolution of the Company. In the event the Company obtains a
written opinion from an Independent Financial Advisor stating that the terms of
an Affiliate Transaction are fair to the Company or a Restricted Subsidiary, as
the case may be, from a financial point of view, it shall conclusively meet the
requirements of the first sentence of this paragraph and there shall be no need
to comply with the second sentence of this paragraph.
Notwithstanding the foregoing, the restrictions set forth in
this Section 4.14 shall not apply to (i) transactions between or among the
Company and/or any of the Restricted Subsidiaries, (ii) any dividend or
distribution permitted by Section 4.9, (iii) directors' fees, indemnification
and similar arrangements, officers' indemnification, employee stock option or
employee benefit plans and employee salaries and bonuses paid or created in the
ordinary course of business, (iv) any Affiliate Transaction pursuant to any
agreement in effect on the Issue Date, as the same shall be amended from time to
time; provided that any material amendment shall be required to comply with the
provisions of the preceding paragraph of this Section 4.14, (v) transactions
involving the marketing of products and services of the Company or any
Restricted Subsidiary jointly with products and services of an Affiliate of the
Company or a beneficial holder of 5% or more of any class of Equity Interests of
the Company (such holder or Affiliate bring a "Related Party"); provided all
payments made by the Company or any Restricted Subsidiary to the Related Party
are made to reimburse the Related Party for its share of any expenses incurred
by the Related Party on behalf of the Company or any Restricted Subsidiary, (vi)
transactions involving the leasing or sharing or other use by the Company or any
Restricted Subsidiary of communications network facilities (including, without
limitation, cable or fiber lines, equipment or transmission capacity) of a
Related Party on terms that are no less favorable (when taken as a whole) to the
Company or such Restricted Subsidiary, as applicable, than those available from
such Related Party to unaffiliated third parties, (vii) transactions involving
the provision of telecommunication services by a Related Party in the ordinary
course of its business to the Company or any Restricted Subsidiary, or by the
Company or any Restricted Subsidiary to a Related Party, on terms that are no
less favorable (when taken as a whole) to the Company or such Restricted
Subsidiary, as applicable, than those available from such Related Party to
unaffiliated third parties, and (viii) any sales agency agreements pursuant to
which a Partner or any of its Affiliates has the right to market any or all of
the products or services of the Company or any of the Restricted Subsidiaries on
a "most favored nation" basis (without regard to volume), as contemplated by the
Holdings Partnership Agreement as in effect on the Issue Date.
SECTION IV.15 Change of Control.
(a) Upon the occurrence of a Change of Control (the date of
such occurrence being the "Change of Control Date"), the Issuers shall notify
the holders of the Securities, in the manner prescribed by this Indenture, of
such occurrence and shall make an offer to purchase (a "Change of Control
Offer"), on a Business Day (the "Change of Control Payment Date") not later than
60 days following the Change of Control Date, all Securities then outstanding at
a purchase price equal to 101% of the principal amount of the Securities, plus
accrued and unpaid interest, if any, thereon to the Change of Control Payment
Date. The Change of Control Offer shall remain open for at least 20 Business
Days or such longer period as may be required by law and until the close of
business on the Change of Control Payment Date. The Issuers' obligations under
this Section 4.15 may be satisfied if a third party makes the Change of Control
Offer in the manner, at the times and otherwise in compliance with the
requirements applicable to a Change of Control Offer made by the Issuers and
purchases all Securities validly tendered and not withdrawn under such Change of
Control Offer.
(b) Not less than 30 days nor more than 60 days before the
Change of Control Payment Date, the Issuers shall send, by first class mail, a
notice to each Holder of Securities, with a copy to the Trustee and the Paying
Agent. The notice, which shall govern the terms of the Change of Control Offer,
shall include such disclosures as are required by law and shall state:
(i) that a Change of Control Offer is being made pursuant to
this Section 4.15 and that all Securities tendered will be accepted for
payment;
(ii) the purchase price (including the amount of accrued
interest, if any) for each Security and the Change of Control Payment
Date;
(iii) that any Security not tendered for payment will con-
tinue to accrue interest in accordance with the terms thereof;
(iv) that, unless the Issuers default on making the payment,
any Security or portion thereof accepted for payment pursuant to the
Change of Control Offer shall cease to accrue interest after the Change
of Control Payment Date;
(v) that Holders electing to have Securities or any portion
thereof purchased pursuant to a Change of Control Offer will be
required to surrender their Securities to the Paying Agent at the
address specified in the notice prior to 5:00 p.m., New York City time,
on the Business Day preceding the Change of Control Payment Date with
the "Option of Holder to Elect Purchase" on the reverse thereof
completed and must complete any form of letter of transmittal proposed
by the Issuers and acceptable to the Trustee and the Paying Agent;
(vi) that Holders of Securities will be entitled to withdraw
their election if the Paying Agent receives, not later than 5:00 p.m.,
New York City time, on the Business Day preceding the Change of Control
Payment Date, a tested telex, facsimile transmission or letter setting
forth the name of the Holder, the principal amount of Securities the
Holder delivered for purchase and a statement that such Holder is
withdrawing his election to have such Securities purchased; and
(vii) that Holders whose Securities are purchased only in part
will be issued Securities equal in principal amount to the unpurchased
portion of the Securities surrendered.
On the Change of Control Payment Date, the Issuers shall (i)
accept for payment Securities or portions thereof tendered pursuant to the
Change of Control Offer, (ii) deposit with the Paying Agent U.S. Legal Tender
sufficient to pay the purchase price of all Securities or portions thereof so
tendered and accepted and (iii) deliver to the Trustee the Securities so
accepted together with an Officers' Certificate of each of the Issuers setting
forth the Securities or portions thereof tendered to and accepted for payment by
the Issuers. The Paying Agent shall promptly (but in any case no later than 10
calendar days after the Change of Control Payment Date) mail or deliver to the
Holders of Securities so accepted payment in an amount equal to the purchase
price, and the Trustee shall promptly authenticate and mail or deliver to such
Holders a new Security equal in principal amount to any unpurchased portion of
the Security surrendered. Any Securities not so accepted shall be promptly
mailed or delivered by the Issuers to the Holder thereof.
For purposes of this Section 4.15, the Trustee shall act as
Paying Agent.
In connection with the purchase of Securities pursuant to a
Change of Control Offer, the Issuers shall comply with all applicable tender
offer laws and regulations, including, to the extent applicable, Section 14(e)
and Rule 14(e)-1 under the Exchange Act, and any other applicable Federal or
state securities laws and regulations and any applicable requirements of any
securities exchange on which the Securities are listed.
SECTION IV.16 Limitation on Designations of
Unrestricted Subsidiaries.
The Company may designate any Subsidiary of the Company (other
than FinCo, WirelessCo, RealtyCo and EquipmentCo) as an "Unrestricted
Subsidiary" under this Indenture (a "Designation") only if:
(i) no Default shall have occurred and be continuing at the
time of or after giving effect to such Designation; and
(ii) the Company would be permitted under this Indenture to
make an Investment at the time of Designation (assuming the
effectiveness of such Designation) in an amount (the "Designation
Amount") equal to the Fair Market Value of the aggregate amount of its
Investments in such Subsidiary on such date; and
(iii) except in the case of a Subsidiary in which an
Investment is being made pursuant to and as permitted by the third
paragraph of Section 4.9, the Company would be permitted to incur $1.00
of additional Indebtedness pursuant to clause (a) of the proviso to the
first paragraph of Section 4.8 at the time of Designation (assuming the
effectiveness of such Designation).
In the event of any such Designation, the Company shall be
deemed to have made an Investment constituting a Restricted Payment pursuant to
Section 4.9 for all purposes of this Indenture in the Designation Amount. The
Company shall not, and shall not permit any Restricted Subsidiary to, at any
time (x) provide direct or indirect credit support for or a guarantee of any
Indebtedness of any Unrestricted Subsidiary (including of any undertaking,
agreement or instrument evidencing such Indebtedness), (y) be directly or
indirectly liable for any Indebtedness of any Unrestricted Subsidiary or (z) be
directly or indirectly liable for any Indebtedness which provides that the
Holder thereof may (upon notice, lapse of time or both) declare a default
thereon or cause the payment thereof to be accelerated or payable prior to its
final scheduled maturity upon the occurrence of a default with respect to any
Indebtedness of any Unrestricted Subsidiary (including any right to take
enforcement action against such Unrestricted Subsidiary), except, in the case of
clause (x) or (y), to the extent permitted under Section 4.9.
Notwithstanding anything herein to the contrary, APC shall
not, at any time, be considered a Restricted Subsidiary absent a Revocation in
compliance with the following paragraph.
The Company may revoke any Designation of a Subsidiary as an
Unrestricted Subsidiary (a "Revocation"), whereupon such Subsidiary shall then
constitute a Restricted Subsidiary, if:
(a) no Default shall have occurred and be continuing at
the time of and after giving effect to such Revocation; and
(b) all Liens and Indebtedness of such Unrestricted Subsidiary
outstanding immediately following such Revocation would, if incurred at
such time, have been permitted to be incurred for all purposes of this
Indenture.
All Designations and Revocations must be evidenced by
Resolutions of the Company delivered to the Trustee certifying compliance with
the foregoing provisions.
SECTION IV.17 Limitation on Activities of
the Issuers and the Restricted
Subsidiaries.
(i) The Company will not, and will not permit any Restricted
Subsidiary to, engage in any business other than a Permitted Business and (ii)
FinCo will not own any operating assets or other properties or conduct any
business other than to serve as an Issuer and obligor on the Securities and
other Indebtedness permitted under this Indenture.
SECTION IV.18 Limitation on Ownership of Equity
Interests of Restricted Subsidiaries.
Notwithstanding any other provision of this Indenture to the
contrary, (i) each of WirelessCo, RealtyCo, EquipmentCo and FinCo shall at all
times remain a direct Wholly-Owned Restricted Subsidiary of the Company (except
that FinCo may be merged with and into the Company or a Wholly-Owned Restricted
Subsidiary if the Company or such Wholly-Owned Restricted Subsidiary is then a
corporation) and (ii) none of WirelessCo, RealtyCo or EquipmentCo will, directly
or indirectly, sell, convey, transfer, lease or otherwise dispose of any assets
or property used or useful in the operation of the business of the Company and
the Restricted Subsidiaries in the geographic areas for which the Company or a
Restricted Subsidiary owns or holds an FCC license for the transmission of
wireless telecommunications services on the Issue Date other than, in the case
of this clause (ii), to a Person not an Affiliate of the Company or any of the
Restricted Subsidiaries or to a Wholly-Owned Subsidiary if all of the
outstanding Equity Interests of such Wholly-Owned Subsidiary are concurrently
sold to a Person that is not an Affiliate of the Company or any of the
Restricted Subsidiaries, in each case in compliance with Section 4.13.
Notwithstanding the foregoing, WirelessCo, RealtyCo, EquipmentCo and FinCo may
issue Disqualified Equity Interests that do not entitle the Holders thereof to
participate in the earnings, profits or cash flow of such Restricted Subsidiary
pursuant to and in compliance with Section 4.8.
SECTION IV.19 Amendments to Capital
Contribution Agreement.
The Company will not amend, modify or waive, or refrain from
enforcing, any provision of the Capital Contribution Agreement dated as of July
15, 1996 among Sprint Corporation, Tele-Communications, Inc., Comcast
Corporation, Cox Communications, Inc. and the Company in any manner adverse to
the Company or the holders of the Securities in any material respect.
SECTION IV.20 Waiver of Stay, Extension
or Usury Laws.
Each of the Issuers covenants, and each Subsidiary Guarantor
shall be deemed to covenant, (to the extent permitted by law) 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 or extension law or any usury law or other law
that would prohibit or forgive the Issuers or such Subsidiary Guarantor, as the
case may be, from paying all or any portion of the principal of or interest on
the Securities as contemplated herein, wherever enacted, now or at any time
hereafter in force, or that may affect the covenants or the performance of this
Indenture; and (to the extent permitted by law) each of the Issuers hereby
expressly waives and each Subsidiary Guarantor shall be deemed to expressly
waive, all benefit or advantage of any such law, and covenants, and each
Subsidiary Guarantor shall be deemed to covenant, that it will not hinder, delay
or impede the execution of any power herein granted to the Trustee, but will
suffer and permit the execution of every such power as though no such law had
been enacted.
ARTICLE V
SUCCESSOR CORPORATION
SECTION V.1 Consolidation, Merger, Sale
of Assets, Etc.
The Company will not, in any transaction or series of
transactions, merge or consolidate with or into, or sell, assign, convey,
transfer, lease or otherwise dispose of all or substantially all of its
properties and assets as an entirety to, any Person or Persons, and the Company
will not permit any of the Restricted Subsidiaries to enter into any such
transaction or series of transactions if such transaction or series of
transactions, in the aggregate, would result in a sale, assignment, conveyance,
transfer, lease or other disposition of all or substantially all of the
properties and assets of the Company and the Restricted Subsidiaries, taken as a
whole, to any other Person or Persons, unless at the time of and after giving
effect thereto:
(i) either (a) if the transaction or series of transactions is
a merger or consolidation, the Company shall be the surviving Person of
such merger or consolidation, or (b) the Person formed by any such
consolidation or into which the Company or such Restricted Subsidiary
is merged or to which the properties and assets of the Company and/or
any Restricted Subsidiary, as the case may be, are transferred (any
such surviving Person or transferee Person being a "Surviving Entity")
shall be a partnership or corporation organized and existing under the
laws of the United States of America, any state thereof or the District
of Columbia and shall expressly assume by a supplemental indenture
executed and delivered to the Trustee, in form reasonably satisfactory
to the Trustee, all the obligations of the Company under the Securities
and this Indenture, and, in each case, this Indenture shall remain in
full force and effect;
(ii) immediately before and immediately after giving effect to
such transaction or series of transactions on a pro forma basis
(including, without limitation, any Indebtedness incurred or
anticipated to be incurred in connection with or in respect of such
transaction or series of transactions), no Default shall have occurred
and be continuing;
(iii) immediately after giving effect to such transaction or
series of transactions on a pro forma basis (including, without
limitation, any Indebtedness incurred or anticipated to be incurred in
connection with or in respect of such transaction or series of
transactions), the Company or the Surviving Entity, as the case may be,
could incur $1.00 of additional Indebtedness pursuant to the proviso to
the first paragraph of clause (a) of Section 4.8; provided that in the
event of a conversion of the Company from partnership to corporate form
in a transaction the primary purpose of which is to effect such
conversion and in which no additional Indebtedness is incurred or
anticipated to be incurred by the Company, the Surviving Entity or any
Restricted Subsidiary, the Surviving Entity shall not be required to be
able to incur such $1.00 of additional Indebtedness; and
(iv) the Company or its surviving entity, as the case may be,
shall deliver, or cause to be delivered, to the Trustee, in form and
substance reasonably satisfactory to the Trustee, an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, transfer, lease, assignment or other disposition
and the supplemental indenture in respect thereof comply with the
requirements of this Indenture.
Each Subsidiary Guarantor (other than any Subsidiary Guarantor
whose Subsidiary Guarantee is to be released in accordance with the terms of the
Subsidiary Guarantee and this Indenture in connection with any transaction
complying with the provisions of Section 4.17) will not, and the Company will
not cause or permit any Subsidiary Guarantor to, consolidate with or merge with
or into any Person other than the Company or another Subsidiary Guarantor
unless: (a) the entity formed by or surviving any such consolidation or merger
(if other than the Subsidiary Guarantor) is a corporation or partnership
organized and existing under the laws of the United States or any state thereof
or the District of Columbia; (b) such entity assumes by supplemental indenture
all of the obligations of the Subsidiary Guarantor under its Subsidiary
Guarantee; (c) immediately after giving effect to such transaction, no Default
or Event of Default shall have occurred and be continuing; and (d) immediately
after giving effect to such transaction and the use of any net proceeds
therefrom on a pro forma basis, the Company could satisfy the provisions of
clause (iii) of the first paragraph of this Section. Any merger or consolidation
of a Subsidiary Guarantor with and into the Company (with the Company being the
Surviving Entity) or another Subsidiary Guarantor need only comply with clause
(ii) of the first paragraph of this Section.
SECTION V.2 Successor Entity Substituted.
Upon any consolidation, combination, merger or any transfer of
all or substantially all of the assets of a Person subject to, and in accordance
with Section 5.1, the Surviving Entity formed by such consolidation or
combination or into which the Company is merged or to which such transfer is
made shall succeed to, and be substituted for, and may exercise every right and
power of, the Company under this Indenture with the same effect as if such
Surviving Entity had been named as the Company herein; provided that, solely for
purposes of computing Available Operating Cash Flow for purposes of clause (iii)
of the first paragraph of Section 4.9, the Available Operating Cash Flow of any
Persons other than the Company and the Restricted Subsidiaries shall only be
included for periods subsequent to the effective time of such consolidation,
combination, merger or transfer of assets.
SECTION V.3 Status of Subsidiaries.
For all purposes of this Indenture and the Securities
(including the provisions of this Article V and Sections 4.8, 4.9 and 4.10),
Subsidiaries of any Surviving Entity will, upon such transaction or series of
transactions, become Restricted Subsidiaries or Unrestricted Subsidiaries as
provided pursuant to Section 4.16 and all Indebtedness, and all Liens on
property or assets, of the Company and the Restricted Subsidiaries immediately
prior to such transaction or series of transactions will be deemed to have been
incurred to upon such transaction or series of transactions; provided that in
the event of a conversion of the Company from partnership to corporate form in a
transaction the purpose of which is to effect such conversion and in which no
additional Indebtedness is incurred or anticipated to be incurred by the
Company, the Surviving Entity or any Restricted Subsidiary, no Indebtedness of
the Company and the Restricted Subsidiaries shall be deemed to have been
incurred upon such transaction or series of transactions.
ARTICLE VI
DEFAULT AND REMEDIES
SECTION VI.1 Events of Default.
(a) An "Event of Default" occurs if:
(i) there is a default in the payment of the principal of the
Securities when due, at maturity, upon redemption or otherwise
(including pursuant to a Change of Control Offer or an Asset Sale
Offer); or
(ii) there is a default in the payment of interest on the
Securities when it becomes due and payable and continuance of such
default for a period of 30 days; or
(iii) there is a default in the performance, or breach, of
any covenant described in Section 5.1; or
(iv) there is a default in the performance of or compliance
with, or breach of, any term, covenant, condition or provision of the
Securities or this Indenture (other than those specified in clause (i),
(ii) or (iii) above) and such default continues for a period of 30 days
after written notice to the Company thereof by the Trustee or holders
of at least 25% of the aggregate principal amount of the Securities
then outstanding; or
(v) either (a) one or more default or defaults in the payment
of any principal under one or more agreements, instruments, mortgages,
bonds, debentures or other evidences of Indebtedness (each, a "Debt
Instrument") under which the Company or one or more Restricted
Subsidiaries or the Company and one or more Restricted Subsidiaries
then have outstanding Indebtedness in excess of $50.0 million,
individually or in the aggregate, or (b) any other default or defaults
under one or more Debt Instruments under which the Company or one or
more Restricted Subsidiaries or the Company and one or more Restricted
Subsidiaries then have outstanding Indebtedness in excess of $50.0
million, individually or in the aggregate, and, in the case of this
clause (b), either (x) such Indebtedness is already due and payable in
full by its terms or (y) such default or defaults have resulted in the
acceleration of the maturity of such Indebtedness; or
(vi) one or more judgments, orders or decrees of any court or
regulatory or administrative agency of competent jurisdiction for the
payment of money in excess of $50.0 million, either individually or in
the aggregate, shall be entered against the Company or any Restricted
Subsidiary or any of their respective properties and shall not be
discharged or fully bonded and there shall have been a period of 60
days after the date on which any period for appeal has expired and
during which a stay of enforcement of such judgment, order or decree
shall not be in effect; or
(vii) any holder of at least $50.0 million in aggregate
principal amount of Indebtedness of the Company or any of the
Restricted Subsidiaries, or its trustee, agent or representative, shall
commence (or have commenced on its behalf) judicial proceedings to
foreclose upon assets of the Company or any of the Restricted
Subsidiaries having an aggregate Fair Market Value, individually or in
the aggregate, in excess of $50.0 million or shall have exercised any
right under applicable law or applicable security documents to take
ownership of any such assets in lieu of foreclosure; or
(viii) any Subsidiary Guarantee ceases to be in full force and
effect or is declared null and void or a Subsidiary Guarantor denies
that it has any further liability under its Subsidiary Guarantee or
gives notice to such effect; or
(ix) an Issuer, any Subsidiary Guarantor or any Material
Restricted Subsidiary (a) admits in writing its inability to pay its
debts generally as they become due, (b) commences a voluntary case or
proceeding under any Bankruptcy Law with respect to itself, (c)
consents to the entry of a judgment, decree or order for relief against
it in an involuntary case or proceeding under any Bankruptcy Law, (d)
consents to the appointment of a Custodian (as defined below) of it or
for substantially all of its property, (e) consents to or acquiesces in
the institution of a bankruptcy or an insolvency proceeding against it,
(f) makes a general assignment for the benefit of its creditors or (g)
takes any partnership or corporate action, as the case may be, to
authorize or effect any of the foregoing;
(x) a court of competent jurisdiction enters a judgment,
decree or order for relief in respect of an Issuer, any Subsidiary
Guarantor or any Material Restricted Subsidiary in an involuntary case
or proceeding under any Bankruptcy Law, which shall (a) approve as
properly filed a petition seeking reorganization, arrangement,
adjustment or composition in respect of an Issuer, any Subsidiary
Guarantor or any Material Restricted Subsidiary, (b) appoint a
Custodian of an Issuer, a Subsidiary Guarantor or any Material
Restricted Subsidiary or for substantially all of any of their property
or (c) order the winding-up or liquidation of its affairs; and such
judgment, decree or order shall remain unstayed and in effect for a
period of 60 consecutive days.
(b) For purposes of this Article VI: the term "Custodian"
means any receiver, interim receiver, receiver and manager, trustee, assignee,
liquidator, sequestrator or similar official charged with maintaining possession
or control over property for one or more creditors, whether under any Bankruptcy
Law or otherwise.
SECTION VI.2 Acceleration.
If an Event of Default (other than an Event of Default
specified in Section 6.1(a)(ix) or (x) with respect to an Issuer) occurs and is
continuing, the Holders of at least 25% in principal amount of the outstanding
Securities may, by written notice to the Issuers and the Trustee, and the
Trustee upon the request of the Holders of not less than 25% in principal amount
of the outstanding Securities shall by written notice to the Issuers, declare
the Default Amount to be due and payable immediately. Upon any such declaration
such amounts shall become due and payable immediately. If an Event of Default
specified in Section 6.1(a)(ix) or (x) occurs and is continuing with respect to
an Issuer, then the Default Amount shall ipso facto become and be immediately
due and payable without any declaration or other act on the part of the Trustee
or any Holder. The Holders of a majority in aggregate principal amount of
outstanding Securities may, by notice to the Trustee, rescind such declaration
of acceleration if all existing Events of Default have been cured or waived,
other than the non-payment of the Default Amount and any accrued interest on the
Securities that has become due solely as a result of such acceleration and if
the rescission of acceleration would not conflict with any judgment or decree.
No such rescission shall affect any subsequent default or impair any right
consequent thereto.
SECTION VI.3 Other Remedies.
If an Event of Default occurs and is continuing, the Trustee
may pursue any available remedy by proceeding at law or in equity to collect the
payment of principal of or interest on the Securities, or to enforce the
performance of any provision of the Securities, this Indenture or any Subsidiary
Guarantee.
All rights of action and claims under this Indenture, or the
Securities or any Subsidiary Guarantee may be enforced by the Trustee even if
the Trustee does not possess any of the Securities or does not produce any of
them in the proceeding. A delay or omission by the Trustee or any Securityholder
in exercising any right or remedy accruing upon an Event of Default shall not
impair the right or remedy or constitute a waiver of or acquiescence in the
Event of Default. No remedy is exclusive of any other remedy. All available
remedies are cumulative to the extent permitted by law.
SECTION VI.4 Waiver of Past Default.
Subject to Sections 6.7 and 9.2, the Holders of, in the
aggregate, a majority in aggregate principal amount of the outstanding
Securities by notice to the Trustee may waive an existing Default or Event of
Default and its consequences, except a Default specified in Section 6.1(a)(i) or
(ii) or in respect of any provision hereof that cannot be modified or amended
without the consent of the Holder so affected pursuant to Section 9.2. When a
Default or Event of Default is so waived, it shall be deemed cured and shall
cease to exist.
SECTION VI.5 Control by Majority.
The Holders of at least a majority in principal amount of the
outstanding Securities 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; provided that the Trustee may refuse to follow any
direction that (i) conflicts with law or this Indenture, (ii) the Trustee
determines may be unduly prejudicial to the rights of another Securityholder, or
(iii) may involve the Trustee in personal liability unless the Trustee has
indemnification satisfactory to it in its sole discretion against any loss or
expense caused by its following such direction; and provided, further, that the
Trustee may take any other action deemed proper by the Trustee that is not
inconsistent with such direction.
SECTION VI.6 Limitation on Suits.
A Securityholder may not pursue any remedy with respect to
this Indenture, the Securities or any Subsidiary Guarantee unless:
(a) the Holder gives to the Trustee written notice of a
continuing Event of Default;
(b) the Holders of at least 25% in principal amount of
the outstanding Securities make a written request to the Trustee to
pursue a remedy;
(c) such Holder or Holders offer and, if requested, provide to
the Trustee security or indemnity reasonably satisfactory to the
Trustee against any loss, liability or expense;
(d) the Trustee does not comply with the request within
30 days after receipt of the request and the offer and, if requested,
provision of indemnity; and
(e) during such 30-day period the Holders of a majority in
principal amount of the outstanding Securities do not give the Trustee
a direction inconsistent with the request.
The foregoing limitations shall not apply to a suit instituted
by a Holder for the enforcement of the payment of the Default Amount, principal
of or accrued interest on the Securities on or after the respective due dates
set forth or provided for in the Securities.
A Securityholder may not use this Indenture to obtain a
preference or priority over any other Securityholder.
SECTION VI.7 Rights of Holders To Receive Payment.
Notwithstanding any other provision of this Indenture, the
right of any Holder to receive payment of the Default Amount, principal of and
interest on a Security, on or after the respective due dates expressed or
provided for in the Security, or to bring suit for the enforcement of any such
payment on or after such respective dates, is absolute and unconditional and
shall not be impaired or affected without the consent of such Holder.
SECTION VI.8 Collection Suit by Trustee.
If an Event of Default specified in Section 6.1(a)(i) or (ii)
occurs and is continuing, the Trustee may recover judgment in its own name and
as trustee of an express trust against the Issuers or any other obligor on the
Securities for the whole amount of principal and accrued interest remaining
unpaid, together with interest overdue on principal and, to the extent that
payment of such interest is lawful, interest on overdue installments of
interest, in each case at the interest rate borne by the Securities and 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.
SECTION VI.9 Trustee May File Proofs of Claim.
The Trustee shall be entitled and empowered to file such
proofs of claim and other papers or documents as may be necessary or advisable
in order to have the claims of the Trustee (including any claim for the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel) and the Securityholders allowed in any judicial
proceedings relative to the Issuers or any Subsidiary Guarantor (or any other
obligor upon the Securities), their creditors or their property and shall be
entitled and empowered to collect and receive any monies or other property
payable or deliverable on any such claims and to distribute the same, and any
Custodian in any such judicial proceedings is hereby authorized by each
Securityholder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the
Securityholders, to pay to the Trustee any amount due to it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agent and
counsel, and any other amounts due the Trustee under Section 7.7. Nothing herein
contained shall be deemed to authorize the Trustee to authorize or consent to or
accept or adopt on behalf of any Securityholder any plan of reorganization,
arrangement, adjustment or composition affecting the Securities or the rights of
any Holder thereof, or to authorize the Trustee to vote in respect of the claim
of any Securityholder in any such proceeding.
SECTION VI.10 Priorities.
If the Trustee collects any money pursuant to this Article VI,
it shall pay out such money in the following order:
First: to the Trustee for amounts due under Section 7.7;
Second: to Holders for interest accrued on the Securities,
ratably, without preference or priority of any kind, according to the
amounts due and payable on the Securities for interest;
Third: to Holders for principal amounts owing under the
Securities, ratably, without preference or priority of any kind,
according to the amounts due and payable on the Securities for
principal; and
Fourth: to the Issuers or any Subsidiary Guarantor, as their
respective interests may appear.
The Trustee, upon prior written notice to the Issuers, may fix
a record date and payment date for any payment to Securityholders pursuant to
this Section 6.10.
SECTION VI.11 Undertaking for Costs.
In any suit for the enforcement of any right or remedy under
this Indenture or in any suit against the Trustee for any action taken or
omitted by it as Trustee, a court in its discretion may require the filing by
any party litigant in the suit of an undertaking to pay the costs of the suit,
and the court in its discretion may assess reasonable costs, including
reasonable attorneys' fees, against any party litigant in the suit, having due
regard to the merits and good faith of the claims or defenses made by the party
litigant. This Section 6.11 does not apply to a suit by the Trustee, a suit by a
Holder pursuant to Section 6.7 or a suit by Holders of more than 10% in
aggregate principal amount of the outstanding Securities.
ARTICLE VII
TRUSTEE
SECTION VII.1 Duties of Trustee.
(a) If an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture and use the same degree of care and skill in its exercise as a prudent
person would exercise or use under the circumstances in the conduct of such
person's own affairs.
(b) Except during the continuance of an Event of Default:
(i) The Trustee undertakes to perform such duties as are
specifically set forth in this Indenture and no implied covenants or
obligations shall be read into this Indenture against the Trustee.
(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.
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(i) this paragraph does not limit the effect of paragraph (b)
of this Section 7.1;
(ii) the Trustee shall not be liable for any error of judgment
made in good faith by a Trust Officer, unless it is proved that the
Trustee was negligent in ascertaining the pertinent facts; and
(iii) the Trustee shall not be liable with respect to any
action it takes or omits to take in good faith and reasonably believed
by it to be authorized or within the discretion or rights or powers
conferred upon it by this Indenture.
(d) No provision of this Indenture shall require the Trustee
to expend or risk its own funds or otherwise incur any financial liability in
the performance of any of its duties hereunder or in the exercise of any of its
rights or powers if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it.
(e) Every provision of this Indenture that in any way relates
to the Trustee is subject to paragraphs (a), (b), (c) and (d) of this Section
7.1.
(f) The Trustee may refuse to perform any duty or exercise any
right or power unless it is provided adequate funds to enable it to do so and it
receives indemnity satisfactory to it in its sole discretion against any loss,
liability, fee or expense.
SECTION VII.2 Rights of Trustee.
Subject to TIA ss.ss. 315(a)-(d) and except as provided in
Section 7.1:
(a) The Trustee may rely upon any document believed by it to
be genuine and to have been signed or presented by the proper Person.
The Trustee shall not be bound to make any investigation into the facts
or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of indebtedness or other
paper or document, but the Trustee, in its discretion, may make such
further inquiry or investigation into such facts or matters as it may
see fit, and, if the Trustee shall determine to make such further
inquiry or investigation, it shall be entitled, upon reasonable notice,
to examine the books, records and premises of the Issuers, personally
or by agent or attorney at the sole cost of the Company and shall incur
no liability or additional liability of any kind by reason of such
inquiry or investigation.
(b) Before the Trustee acts or refrains from acting with
respect to any matter contemplated by this Indenture, it may require an
Officers' Certificate from each of the Issuers or an Opinion of Counsel
from each of the Issuers, that shall conform to the provisions of
Section 11.5. The Trustee shall not be liable for any action it takes
or omits to take in good faith in reliance on such certificate 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
(other than the negligence or willful misconduct of an agent who is an
employee of the Trustee) appointed with due care.
(d) The Trustee shall not be liable for any action it takes or
omits to take in good faith that it reasonably believes to be
authorized or within its rights or powers; provided, however, that the
foregoing shall apply only if the Trustee's conduct does not constitute
negligence or bad faith.
(e) The Trustee may consult with counsel of its selection and
the advice or opinion of such counsel as to matters of law shall be
full and complete authorization and protection from liability in
respect of any action taken, omitted or suffered by it hereunder in
good faith and in accordance with the advice or opinion of such
counsel.
(f) The Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request
or direction of any Holder pursuant to this Indenture, unless such
Holder shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction.
SECTION VII.3 Individual Rights of Trustee.
The Trustee in its individual capacity or any other capacity
may become the owner or pledgee of Securities and may otherwise deal with the
Issuers or their Affiliates with the same rights it would have if it were not
Trustee. Any Agent may do the same with like rights. However, the Trustee is
subject to Sections 7.10 and 7.11.
SECTION VII.4 Trustee's Disclaimer.
The Trustee shall not be responsible for and makes no
representation as to the validity or adequacy of this Indenture, the Securities
or any Subsidiary Guarantee, it shall not be accountable for the Company's use
of the proceeds from the issuance of the Securities and it shall not be
responsible for any statement of the Issuers in this Indenture or any document
issued in connection with the sale of Securities or any statement in the
Securities other than the Trustee's certificate of authentication.
SECTION VII.5 Notice of Defaults.
If a Default or an Event of Default with respect to the
Securities occurs and is continuing and is known to the Trustee, the Trustee
shall give notice of the Default or Event of Default within 30 days after the
Trustee acquires knowledge of the occurrence thereof to all Holders as their
names and addresses appear on the Register, unless such Default shall have been
cured or waived before the mailing of such notice. Except in the case of a
Default or an Event of Default in payment of principal of or interest on any
Security, the Trustee may withhold the notice to the Securityholders if a
committee of its Trust Officers in good faith determines that withholding the
notice is in the interest of Securityholders.
SECTION VII.6 Reports by Trustee to Holders.
To the extent required by TIA ss. 313(a), within 60 days after
May 15 of each year commencing with 1997 and for as long as there are Securities
outstanding hereunder, the Trustee shall mail to each Securityholder the
Trustee's brief report dated as of such date that complies with TIA ss. 313(a).
The Trustee also shall comply with TIA ss. 313(b) and TIA ss. 313(c) and (d). A
copy of such report at the time of its mailing to Securityholders shall be filed
with the Commission, if required, and each stock exchange, if any, on which the
Securities are listed.
SECTION VII.7 Compensation and Indemnity.
The Issuers shall pay to the Trustee, the Paying Agent and the
Registrar from time to time such compensation as shall be agreed to in writing
from time to time by the Trustee and the Issuers for their respective services
rendered hereunder. The Trustee's, the Paying Agent's and the Registrar's
compensation shall not be limited by any law on compensation of a trustee of an
express trust. The Issuers shall reimburse the Trustee, the Paying Agent and the
Registrar upon request for all reasonable out-of-pocket disbursements, expenses
and advances (including reasonable fees and expenses of counsel) incurred or
made by each of them in addition to the compensation for their respective
services. Such expenses shall include the reasonable compensation, out-of-pocket
disbursements and expenses of the Trustee's, the Paying Agent's and the
Registrar's agents and counsel.
The Issuers shall indemnify each of the Trustee, any
predecessor Trustee, the Paying Agent and the Registrar for, and hold each of
them harmless against, any claim, demand, expense (including but not limited to
their respective reasonable attorneys' fees and expenses), loss or liability,
including taxes (other than taxes based upon, measured by or determined by the
income of the Trustee) incurred by each of them arising out of or in connection
with the administration of this Indenture and their respective duties hereunder
or thereunder. Each of the Trustee, the Paying Agent and the Registrar shall
notify the Issuers promptly of any claim asserted against it for which it may
seek indemnity. However, failure by the Trustee, the Paying Agent or the
Registrar to so notify the Issuers shall not relieve the Issuers of their
obligations hereunder. The Issuers need not reimburse any expense or indemnify
against any loss or liability incurred by the Trustee, the Paying Agent or the
Registrar through the Trustee's, the Paying Agent's or the Registrar's, as the
case may be, own willful misconduct, negligence or bad faith.
To secure the Issuers' payment obligations in this Section 7.7
and in Section 6.9 (insofar as the Trustee is concerned), each of the Trustee,
the Paying Agent and the Registrar shall have a lien prior to the Securities on
all money or property held or collected by it, in its capacity as Trustee,
Paying Agent or Registrar, as the case may be, except money or property held in
trust to pay principal of or interest on particular Securities. Such lien shall
survive the satisfaction and discharge of this Indenture or any other
termination under the Bankruptcy Law.
Subject to any other rights available to the Trustee, the
Registrar and the Paying Agent under any Bankruptcy Law, when any of the
Trustee, the Paying Agent and the Registrar incurs expenses or renders services
after an Event of Default specified in Section 6.1(a)(ix) or (x) with respect to
an Issuer occurs, the parties hereto and the Securityholders, by acceptance of
the Securities, hereby agree that the expenses and the compensation for the
services are intended to constitute expenses of administration under any
Bankruptcy Law.
The provisions of this Section 7.7 shall survive the
termination of this Indenture.
SECTION VII.8 Replacement of Trustee.
The Trustee may resign at any time by so notifying the Issuers
in writing, such resignation to be effective upon the appointment of a successor
Trustee. The Holders of a majority in principal amount of the outstanding
Securities may remove the Trustee by so notifying the Trustee in writing and may
appoint a successor Trustee with the Issuers' consent, which consent shall not
be unreasonably withheld. The Issuers may remove the Trustee if:
(a) the Trustee fails to comply with Section 7.10;
(b) the Trustee is adjudged a bankrupt or an insolvent;
(c) a receiver or other public officer takes charge of
the Trustee or its property; or
(d) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in
the office of the Trustee for any reason (the Trustee in such event being
referred to herein as the retiring Trustee), the Issuers shall promptly appoint
a successor Trustee. Within one year after the successor Trustee takes office,
the Holders of a majority in principal amount of the Securities may appoint a
successor Trustee to replace the successor Trustee appointed by the Issuers.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Issuers. Immediately after that,
the retiring Trustee shall transfer all property held by it as Trustee to the
successor Trustee (subject to the lien provided in Section 7.7), 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. A successor Trustee shall mail notice of its succession to each
Securityholder.
If a successor Trustee does not take office within 30 days
after the retiring Trustee resigns or is removed, the retiring Trustee, the
Issuers or the Holders of at least 25% in principal amount of the outstanding
Securities may petition any court of competent jurisdiction for the appointment
of a successor Trustee.
If the Trustee fails to comply with Section 7.10, any
Securityholder may petition any court of competent jurisdiction for the removal
of the Trustee and the appointment of a successor Trustee.
Notwithstanding replacement of the Trustee pursuant to this
Section 7.8, the Issuers' obligations under Section 7.7 shall continue for the
benefit of the retiring Trustee.
SECTION VII.9 Successor Trustee by Merger, Etc.
If the Trustee consolidates with, merges or converts into, or
transfers all or substantially all of its corporate trust business to, another
corporation or national banking association, the resulting, surviving or
transferee corporation or national banking association without any further act
shall be the successor Trustee provided such corporation shall be otherwise
qualified and eligible under this Article VII.
SECTION VII.10 Eligibility; Disqualification.
This Indenture shall always have a Trustee who satisfies the
requirements of TIA ss. 310(a)(1) and (2). The Trustee shall have a combined
capital and surplus of at least $50,000,000 as set forth in its most recent
published annual report of condition. The Trustee shall comply with TIA ss.
310(b) subject to its rights to apply for a stay of its duty to resign under the
penultimate paragraph of TIA ss. 310(b). The provisions of TIA ss. 310 shall
refer to the Issuers and any Subsidiary Guarantor as obligors in respect of the
Securities.
SECTION VII.11 Preferential Collection of
Claims Against Issuers.
The Trustee shall comply with TIA ss. 311(a), excluding any
creditor relationship listed in TIA ss. 311(b). A Trustee who has resigned or
been removed shall be subject to TIA ss. 311(a) to the extent indicated therein.
The provisions of TIA ss. 311 shall refer to the Issuers and any Subsidiary
Guarantor, if applicable, as obligors in respect of the Securities.
SECTION VII.12 Money Held in Trust.
Money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required by law. The Trustee
shall be under no liability for interest on any money received by it hereunder
except as otherwise agreed in writing with the Issuers.
SECTION VII.13 Preferred Collection of Claims.
If and when the Trustee shall be or become a creditor of the
Issuers (or any other obligor upon the Securities), the Trustee shall be subject
to the provisions of the TIA regarding the collection of claims against the
Issuers (or any such other obligor).
ARTICLE VIII
DISCHARGE OF INDENTURE; DEFEASANCE
SECTION VIII.1 Satisfaction and Discharge.
This Indenture will be discharged and will cease to be of
further effect (except as to surviving rights of registration of transfer or
exchange of the Securities, as expressly provided for in this Indenture) as to
all outstanding Securities when:
(1) either (a) all the Securities, theretofore authenticated
and delivered (except lost, stolen or destroyed Securities that have
been replaced or paid and Securities for whose payment money has
theretofore been deposited in trust or segregated and held in trust by
the Issuers and thereafter repaid to the Issuers or discharged from
such trust) have been delivered to the Trustee for cancellation or (b)
all Securities not theretofore delivered to the Trustee for
cancellation have become due and payable and the Issuers have
irrevocably deposited or caused to be deposited with the Trustee U.S.
Legal Tender in an amount sufficient to pay and discharge the entire
Indebtedness on the Securities not theretofore delivered to the Trustee
for cancellation, for principal of and interest on the Securities to
the date of deposit together with irrevocable instructions from the
Issuers directing the Trustee to apply such funds to the payment
thereof at maturity or redemption, as the case may be;
(2) the Issuers have paid all other sums payable under
this Indenture by them; and
(3) each of the Issuers has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel stating that all
conditions precedent under this Indenture relating to the satisfaction
and discharge of this Indenture have been complied with.
SECTION VIII.2 Legal Defeasance and Covenant
Defeasance.
(a) The Issuers may, at their option by Resolution, at any
time, with respect to the Securities, elect to have either paragraph (b) or
paragraph (c) below be applied to the outstanding Securities upon compliance
with the conditions set forth in paragraph (d).
(b) Upon the Issuers' exercise under paragraph (a) of the
option applicable to this paragraph (b), the Issuers and any Subsidiary
Guarantor, if any, shall be deemed to have been released and discharged from its
obligations with respect to the outstanding Securities on the date the
conditions set forth below are satisfied (hereinafter, "legal defeasance"). For
this purpose, such legal defeasance means that the Issuers shall be deemed to
have paid and discharged the entire indebtedness represented by the outstanding
Securities, which shall thereafter be deemed to be "outstanding" only for the
purposes of paragraph (e) below and the other Sections of and matters under this
Indenture referred to in (i) and (ii) below, and to have satisfied all its other
obligations under such Securities and this Indenture insofar as such Securities
are concerned (and the Trustee, at the expense of the Issuers, shall execute
proper instruments acknowledging the same), except for the following that shall
survive until otherwise terminated or discharged hereunder: (i) the rights of
Holders of outstanding Securities to receive solely from the trust fund
described in paragraph (d) below and as more fully set forth in such paragraph,
payments in respect of the principal of and interest on such Securities when
such payments are due, (ii) the Issuers' obligations with respect to such
Securities under Sections 2.2, 2.3, 2.6, 2.7, 2.8, 4.1, 4.2 and 4.19, and, with
respect to the Trustee, under Sections 7.7 and 7.8, (iii) the rights, powers,
trusts, duties and immunities of the Trustee hereunder and (iv) this Section 8.2
and Sections 8.3, 8.4 and 8.5. Subject to compliance with this Section 8.2, the
Issuers may exercise their option under this paragraph (b) notwithstanding the
prior exercise of their option under paragraph (c) below with respect to the
Securities.
(c) Upon the Issuers' exercise under paragraph (a) of the
option applicable to this paragraph (c), the Issuers shall be released and
discharged from their obligations under any covenant contained in Article V and
in Sections 4.4 through 4.18 (except for obligations mandated by the TIA) with
respect to the outstanding Securities on and after the date the conditions set
forth below are satisfied (hereinafter, "covenant defeasance"), and the
Securities and each Subsidiary Guarantee, if any, shall thereafter be deemed to
be not "outstanding" for the purpose of any direction, waiver, consent or
declaration or act of Holders (and the consequences of any thereof) in
connection with such covenants, but shall continue to be deemed "outstanding"
for all other purposes hereunder. For this purpose, such covenant defeasance
means that, with respect to the outstanding Securities, the Issuers and any
Subsidiary Guarantor, if any, may omit to comply with and shall have no
liability in respect of any term, condition or limitation set forth in any such
covenant, whether directly or indirectly, by reason of any reference elsewhere
herein to any such covenant or by reason of any reference in any such covenant
to any other provision herein or in any other document and such omission to
comply shall not constitute a Default or an Event of Default under Sections
6.1(a)(iii) or 6.1(a)(iv), but, except as specified above, the remainder of this
Indenture and such Securities shall be unaffected thereby.
(d) The following shall be the conditions to application
of either paragraph (b) or paragraph (c) above to the outstanding Securities:
(i) the Issuers must irrevocably deposit with the Trustee, in
trust, for the benefit of the holders of the Securities, cash in United
States Dollars, direct non-callable obligations of, or non-callable
obligations guaranteed by, the United States of America for the payment
of which obligation or guarantee the full faith and credit of the
United States is pledged ("U.S. Government Obligations"), or a
combination thereof, in such amounts as will be sufficient to pay the
principal of and interest on the outstanding Securities to redemption
or maturity (except lost, stolen or destroyed Securities that have been
replaced or paid);
(ii) each of the Issuers shall have delivered to the Trustee
an Opinion of Counsel to the effect that the holders of the outstanding
Securities will not recognize income, gain or loss for Federal income
tax purposes as a result of such legal defeasance or 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 legal defeasance or covenant defeasance had not
occurred (in the case of legal defeasance, such opinion must refer to
and be based upon a ruling of the Internal Revenue Service or a change
in applicable Federal income tax laws);
(iii) no Default under this Indenture shall have occurred and
be continuing on the date of such deposit;
(iv) such legal defeasance or covenant defeasance shall not
cause the Trustee to have a conflicting interest with respect to any
securities of the Issuers;
(v) such legal defeasance or covenant defeasance shall not
result in a breach or violation of, or constitute a default under, any
agreement or instrument to which the Issuers or any of their
Subsidiaries is a party or by which it is bound;
(vi) each of the Issuers shall have delivered to the Trustee
an Opinion of Counsel to the effect that after the 91st day following
their deposit, the trust funds will not be subject to the effect of any
applicable bankruptcy, insolvency, reorganization or similar laws
affecting creditors' rights generally or to the rights of any creditor
of the Issuers or any Subsidiary Guarantor other than those continuing
rights of the applicable holders of Securities; and
(vii) each of the Issuers shall have delivered to the Trustee
an Officers' Certificate and an Opinion of Counsel, each stating that
all conditions precedent under this Indenture to either legal
defeasance or covenant defeasance, as the case may be, have been
complied with.
(e) All United States Dollars and U.S. Government Obligations
(including the proceeds thereof) deposited with the Trustee (or other qualifying
trustee, collectively for purposes of this paragraph (e), the "Trustee")
pursuant to paragraph (d) above in respect of the outstanding Securities shall
be held in trust and applied by the Trustee, in accordance with the provisions
of such Securities and this Indenture, to the payment, either directly or
through any Paying Agent as the Trustee may determine, to the Holders of such
Securities of all sums due and to become due thereon in respect of principal and
interest, but such money need not be segregated from other funds except to the
extent required by law.
The Issuers shall pay and indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against the U.S. Government
Obligations deposited pursuant to paragraph (d) above or the principal and
interest received in respect thereof other than any such tax, fee or other
charge that by law is for the account of the Holders of the outstanding
Securities.
Anything in this Section 8.2 to the contrary notwithstanding,
the Trustee shall deliver or pay to the Issuers from time to time upon the
request, in writing, by the Issuers any money or U.S. Government Obligations
held by it as provided in paragraph (d) above that, in the opinion of a
nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, are in excess of the
amount thereof that would then be required to be deposited to effect an
equivalent legal defeasance or covenant defeasance.
SECTION VIII.3 Application of Trust Money.
The Trustee shall hold in trust money or U.S. Government
Obligations deposited with it pursuant to Sections 8.1 and 8.2, and 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 interest on the
Securities.
SECTION VIII.4 Repayment to the Issuers or a
Subsidiary Guarantor.
Subject to Sections 7.7, 8.1 and 8.2, the Trustee and the
Paying Agent shall promptly pay to the Issuers, or if deposited with the Trustee
by any Subsidiary Guarantor, to such Subsidiary Guarantor upon receipt by the
Trustee and the Paying Agent of Officers' Certificates stating the amount to
which each of the Issuers or such Subsidiary Guarantor, as the case may be, is
entitled, any excess money, determined in accordance with Section 8.2(e), held
by it at any time. The Trustee and the Paying Agent shall pay to the Issuers or
such Subsidiary Guarantor, as the case may be, upon receipt by the Trustee or
the Paying Agent, as the case may be, of Officers' Certificates stating the
amount to which the Issuers or such Subsidiary Guarantor, as the case may be, is
entitled, any money held by it for the payment of principal or interest that
remains unclaimed for two years after payment to the Holders is required;
provided, however, that the Trustee and the Paying Agent before being required
to make any payment may, but need not, at the expense of the Issuers, mail by
first-class mail to each Holder of Securities entitled to such money at such
Holder's address as set forth on the Register notice that such money remains
unclaimed and that after a date specified therein, which shall be at least one
year from the date of such publication or mailing, any unclaimed balance of such
money then remaining will be repaid to the Issuers or such Subsidiary Guarantor,
as the case may be. After payment to the Issuers or such Subsidiary Guarantor,
as the case may be, Securityholders entitled to money must look solely to the
Issuers and such Subsidiary Guarantor for payment as general creditors unless an
applicable abandoned property law designates another Person, and all liability
of the Trustee or Paying Agent with respect to such money shall thereupon cease.
SECTION VIII.5 Reinstatement.
With respect to the circumstances referred to in Section 8.1
and 8.2, if the Trustee or Paying Agent is unable to apply any money or U.S.
Government Obligations in accordance with this Indenture 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, then
and only then the Issuers' and any Subsidiary Guarantor's (if any) obligations
under this Indenture and the Securities shall be revived and reinstated as
though no deposit had been made pursuant to this Indenture 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 Indenture; provided, that if the
Issuers or any such Subsidiary Guarantor has made any payment of principal of or
interest on any Securities because of the reinstatement of its obligations, the
Issuers or any such Subsidiary Guarantor, as the case may be, shall be
subrogated to the rights of the Holders of such Securities to receive such
payment from the money or U.S. Government Obligations held by the Trustee or
Paying Agent.
ARTICLE IX
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION IX.1 Without Consent of Holders.
The Issuers and any Subsidiary Guarantors, when authorized by
Resolutions of their respective Boards, and the Trustee may amend, waive or
supplement this Indenture and the Securities without notice to or consent of any
Securityholder:
(a) to cure any ambiguity, defect or inconsistency, pro-
vided that such amendment or supplement does not adversely affect the
rights of any Holder;
(b) to comply with any requirements of the Commission
under the TIA;
(c) to evidence the succession in accordance with Article V
hereof of another Person and the assumption by any such successor of
the covenants of any of the Issuers or any Subsidiary Guarantor herein
and in the Securities;
(d) to evidence and provide for the acceptance of
appointment hereunder by a successor Trustee with respect to the
Securities;
(e) to make any change that does not adversely affect the
rights of any Holder; or
(f) to add a Subsidiary Guarantor pursuant to Section
4.11.
SECTION IX.2 With Consent of Holders.
Subject to Section 6.7 and the provisions of this Section 9.2,
the Issuers and any Subsidiary Guarantors, when authorized by Resolutions of
their respective Boards, and the Trustee may amend or supplement this Indenture
or the Securities in any respect with the written consent of the Holders of not
less than a majority in aggregate principal amount of the Securities then
outstanding. Subject to Section 6.7 and the provisions of this Section 9.2, the
Holders of, in the aggregate, at least a majority in aggregate principal amount
of the outstanding Securities affected may waive compliance by the Issuers or
any Subsidiary Guarantor with any provision of this Indenture, the Securities or
any Subsidiary Guarantee, as the case may be, without notice to any other
Securityholder.
Notwithstanding the foregoing, without the consent of each
Securityholder affected, an amendment, supplement or waiver, including a waiver
pursuant to Section 6.4, may not:
(a) reduce the principal amount of, extend the fixed
maturity of, or alter the redemption provisions of, the Securities;
(b) change the currency in which any Securities or the
accrued interest thereon is payable;
(c) reduce the percentage in principal amount of outstanding
Securities which must consent to an amendment, supplement or waiver or
consent to take any action under this Indenture, the Securities or any
Subsidiary Guarantees;
(d) impair the right to institute suit for the enforce-
ment of any payment on or with respect to the Securities or any Subsid-
iary Guarantee;
(e) waive a default in payment with respect to the
Securities;
(f) reduce the rate or extend the time for payment of in-
terest on the Securities;
(g) alter the obligation to purchase the Securities in
accordance with this Indenture following the occurrence of an Asset
Sale or a Change of Control or waive any default in the performance
thereof;
(h) adversely affect the ranking of the Securities or any
Subsidiary Guarantees;
(i) release any Subsidiary Guarantee other than in accor-
dance with this Indenture; or
(j) modify this Section 9.2 or Section 6.4.
It shall not be necessary for the consent of the Holders under
this Section 9.2 to approve the particular form of any proposed amendment,
supplement or waiver, but it shall be sufficient if such consent approves the
substance thereof.
After an amendment or waiver under this Section 9.2 becomes
effective, the Issuers shall mail to the Holders affected thereby a notice
briefly describing the amendment or waiver. Any failure of the Issuers to mail
such notice, or any defect therein, shall not, however, in any way impair or
affect the validity of any such amendment or waiver.
Promptly after the execution by the Issuers and any Subsidiary
Guarantors and the Trustee of any supplemental indenture pursuant to the
provisions of this Section 9.2, the Trustee shall give notice thereof, at the
expense of the Issuers, to the Holders of then outstanding Securities, by
mailing a notice thereof by first-class mail to such Holders at their addresses
as they shall appear on the books of the Registrar, and such notice shall set
forth in general terms the substance of such supplemental indenture. Any failure
of the Trustee to give such notice, or any defect therein, shall not, however,
in any way impair or affect the validity of any such supplemental indenture.
SECTION IX.3 Compliance with Trust Indenture Act.
Every amendment to or supplement of this Indenture or the
Securities or any Subsidiary Guarantee shall comply with the TIA as then in
effect.
SECTION IX.4 Revocation and Effect of Amendments
and Consents.
Until an amendment or waiver becomes effective, a consent to
it by a Holder is a continuing consent by the Holder and every subsequent Holder
of that Security or portion of that Security that evidences the same debt as the
consenting Holder's Security, even if notation of the consent is not made on any
Security. Any such Holder or subsequent Holder, however, may revoke the consent
as to his Security or portion of a Security. Such revocation shall be effective
only if the Trustee receives the notice of revocation before the date the
amendment, supplement or waiver becomes effective. Notwithstanding the above,
nothing in this paragraph shall impair the right of any Securityholder under ss.
316(b) of the TIA.
The Issuers may, but shall not be obligated to, fix a record
date for the purpose of determining the Holders of Securities entitled to
consent to any amendment, supplement or waiver. If a record date is fixed, then
notwithstanding the second and third sentences of the immediately preceding
paragraph, those Persons who were Holders of Securities at such record date (or
their duly designated proxies), and only those Persons, shall be entitled to
consent to such amendment, supplement or waiver or to revoke any consent
previously given, whether or not such Persons continue to be Holders of
Securities after such record date. Such consent shall be effective only for
actions taken within 90 days after such record date.
After an amendment, supplement or waiver becomes effective, it
shall bind every Securityholder (and every subsequent Securityholder), unless it
makes a change described in any of clauses (a) through (j) of Section 9.2; if it
makes such a change, the amendment, supplement or waiver shall bind every Holder
consenting thereto and every subsequent Holder of a Security or portion of a
Security that evidences the same debt as the consenting Holder's Security.
SECTION IX.5 Notation on or Exchange of Securities.
If an amendment, supplement or waiver changes the terms of a
Security, the Trustee shall (in accordance with the specific direction of the
Issuers) request the Holder of the Security to deliver it to the Trustee. The
Trustee shall (in accordance with the specific direction of the Issuers) place
an appropriate notation on the Security about the changed terms and return it to
the Holder. Alternatively, if the Issuers or the Trustee so determines, the
Issuers in exchange for the Security shall issue and the Trustee shall
authenticate a new Security that reflects the changed terms. Failure to make the
appropriate notation or issue a new Security shall not affect the validity and
effect of such amendment, supplement or waiver.
SECTION IX.6 Trustee To Sign Amendments, Etc.
The Trustee shall sign any amendment, supplement or waiver
authorized pursuant to this Article IX if the amendment, supplement or waiver
does not adversely affect the rights, duties or immunities of the Trustee. If it
does, the Trustee may, but need not, sign it.
ARTICLE X
GUARANTEE
SECTION X.1 Unconditional Guarantee.
Each Subsidiary Guarantor, if any, hereby unconditionally
guarantees in accordance with the provisions of Section 4.11, to each Holder of
a Security authenticated and delivered by the Trustee and to the Trustee and its
successors and assigns, that: (i) the principal of and interest on the
Securities will be promptly paid in full when due, subject to any applicable
grace period, whether at maturity, by acceleration or otherwise and interest on
the overdue principal, if any, and interest on any interest, to the extent
lawful, of the Securities to the Holders or the Trustee will be promptly paid in
full or performed, all in accordance with the terms hereof and thereof; and (ii)
in case of any extension of time of payment or renewal of any Securities, the
same will be promptly paid in full when due or performed in accordance with the
terms of the extension or renewal, subject to any applicable grace period,
whether at stated maturity, by acceleration or otherwise, subject, however, in
the case of clauses (i) and (ii) above, to the limitations set forth in Section
10.03. Each Subsidiary Guarantor, if any, hereby agrees that its obligations
hereunder shall be unconditional, irrespective of the validity, regularity or
enforceability of the Securities or this Indenture, the absence of any action to
enforce the same, any waiver or consent by any Holder of the Securities with
respect to any provisions hereof or thereof, the recovery of any judgment
against the Issuers, and action to enforce the same or any other circumstance
that might otherwise constitute a legal or equitable discharge or defense of a
guarantor. Each Subsidiary Guarantor, if any, hereby waives diligence,
presentment, demand of payment, filing of claims with a court in the event of
insolvency or bankruptcy of the Issuers, any right to require a proceeding first
against the Issuers, protest, notice and all demands whatsoever and covenants
that its Subsidiary Guarantee will not be discharged except by complete
performance of the obligations contained in the Securities, this Indenture and
in its Subsidiary Guarantee. If any Securityholder or the Trustee is required by
any court or otherwise to return to the Issuers, any Subsidiary Guarantor or any
custodian, trustee, liquidator or other similar official acting in relation to
the Issuers or any such Subsidiary Guarantor, any amount paid by the Issuers or
any such Subsidiary Guarantor to the Trustee or such Securityholder, each
Subsidiary Guarantee to the extent theretofore discharged, shall be reinstated
in full force and effect. Each Subsidiary Guarantor further agrees that, as
between it and all other Subsidiary Guarantors, on the one hand, and the Holders
and the Trustee, on the other hand, (x) the maturity of the obligations
guaranteed hereby may be accelerated as provided in Article VI for the purposes
of a Subsidiary Guarantee notwithstanding any stay, injunction or other
prohibition preventing such acceleration in respect of the obligations
guaranteed hereby, and (y) in the event of any acceleration of such obligations
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.
SECTION X.2 Severability.
In case any provision of this Article X 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 X.3 Limitation of Liability.
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 any 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 its Subsidiary Guarantee shall be
limited to the maximum amount as will, after giving effect to all other
contingent and fixed liabilities of such Subsidiary Guarantor and after giving
effect to any collections from or payments made by or on behalf of any of the
other Subsidiary Guarantors in respect of the obligations of such other
Subsidiary Guarantors under the other Subsidiary Guarantees or pursuant to
Section 10.05, result in the obligations of such Subsidiary Guarantor under its
Subsidiary Guarantee not constituting such fraudulent transfer or conveyance.
SECTION X.4 Subsidiary Guarantors May
Consolidate, etc., on Certain Terms.
(a) Nothing contained in this Indenture or in the Securities
shall prevent any consolidation or merger of a Subsidiary Guarantor with or into
an Issuer or another Subsidiary Guarantor or shall prevent any sale of assets or
conveyance of the property of a Subsidiary Guarantor as an entirety or
substantially as an entirety, to an Issuer or another Subsidiary Guarantor. Upon
any such consolidation, merger, sale or conveyance, the Subsidiary Guarantee
given by such Subsidiary Guarantor shall no longer have any force or effect.
(b) Upon the sale or disposition as an entirety (whether by
merger, stock purchase, asset sale or otherwise) of a Subsidiary Guarantor (or
all or substantially all its assets) to a Person that is not a Subsidiary of the
Company and which sale or disposition is otherwise in compliance with Section
4.17 and the other terms of this Indenture, such Subsidiary Guarantor shall be
deemed released from all obligations under this Article X without any further
action required on the part of the Trustee or any Holder.
The Trustee shall deliver an appropriate instrument evidencing
such release upon receipt of a request by the Issuers accompanied by Officers'
Certificates and Opinions of Counsel certifying as to the compliance with this
Section 10.04. Any Subsidiary Guarantor not so released remains liable for the
full amount of principal of and interest on the Securities as provided in this
Article X.
SECTION X.5 Contribution.
In order to provide for just and equitable contribution among
the Subsidiary Guarantors, the Subsidiary Guarantors agree, inter se, that in
the event any payment or distribution is made by any Subsidiary Guarantor (a
"Funding Guarantor") under any of the Subsidiary Guarantees, such Funding
Guarantor shall be entitled to a contribution from all other Subsidiary
Guarantors in a pro rata amount based on the Adjusted Net Assets (as defined
below) of each of the Subsidiary Guarantors (including the Funding Guarantor)
for all payments, damages and expenses incurred by that Funding Guarantor in
discharging the Issuers' obligations with respect to the Securities or any
obligations of any of the other Subsidiary Guarantors with respect to any of the
Subsidiary Guarantees. "Adjusted Net Assets" of any Person at any date shall
mean the lesser of the amount by which (x) the fair value of the property of
such Person exceeds the total amount of liabilities, including, without
limitation, contingent liabilities (after giving effect to all other fixed and
contingent liabilities incurred or assumed on such date), but excluding
liabilities under a Subsidiary Guarantee of such Person at such date and (y) the
present fair salable value of the assets of such Person at such date exceeds the
amount that will be required to pay the probable liability of such Person on its
debts (after giving effect to all other fixed and contingent liabilities
incurred or assumed on such date), excluding debt in respect of the Subsidiary
Guarantee of such Person, as they become absolute and matured.
SECTION X.6 Waiver of Subrogation.
Until all Obligations under each of the Subsidiary Guarantees,
the Securities and this Indenture are paid in full, each of the Subsidiary
Guarantors hereby irrevocably waives any claims or other rights that it may now
or hereafter acquire against the Issuers that arise from the existence, payment,
performance or enforcement of its obligations under its Subsidiary Guarantee and
this Indenture, including, without limitation, any right of subrogation,
reimbursement, exoneration, indemnification and any right to participate in any
claim or remedy of any Holder of Securities against the Issuers, whether or not
such claim, remedy or right arises in equity, or under contract, statute or
common law, including, without limitation, the right to take or receive from the
Issuers, directly or indirectly, in cash or other property or by set-off or in
any other manner, payment or security on account of such claim or other rights.
If any amount shall be paid to any of the Subsidiary Guarantors in violation of
the preceding sentence and the Securities shall not have been paid in full, such
amount shall have been deemed to have been paid to such Person for the benefit
of, and held in trust for the benefit of, the Holders of the Securities, and
shall, forthwith be paid to the Trustee for the benefit of such Holders to be
credited and applied upon the Securities, whether matured or unmatured, in
accordance with the terms of this Indenture. Each of the Subsidiary Guarantors
acknowledges that it will receive direct and indirect benefits from the
financing arrangements contemplated by this Indenture and that the waiver set
forth in this Section 10.06 is knowingly made in contemplation of such benefits.
SECTION X.7 Execution of Guarantee.
To evidence their guarantee to the Securityholders set forth
in this Article X, each Subsidiary Guarantor hereby agrees to execute a
Subsidiary Guarantee in substantially the form of Exhibit B to this Indenture,
which shall be endorsed on each Security 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 Security a notation of a
Subsidiary Guarantee. A Subsidiary Guarantee shall be signed on behalf of a
Subsidiary Guarantor by two Officers, or an Officer and an Assistant Secretary,
or one Officer shall sign and one Officer or an Assistant Secretary (each of
whom shall, in each case, have been duly authorized by all requisite corporate
or partnership actions) shall attest to the Subsidiary Guarantee prior to the
authentication of the Security on which it is endorsed, and the delivery of such
Security by the Trustee, after the authentication thereof hereunder, shall
constitute due delivery of the Subsidiary Guarantee on behalf of such Subsidiary
Guarantor. Such signatures upon a Subsidiary Guarantee may be by manual or
facsimile signature of such officers and may be imprinted or otherwise
reproduced on the Subsidiary Guarantee and in case any such officer who shall
have signed a Subsidiary Guarantee shall cease to be such officer before the
Security on which the Subsidiary Guarantee is endorsed shall have been
authenticated and delivered by the Trustee or disposed of by the Issuers, such
Security 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 X.8 Waiver of Stay, Extension or Usury
Laws.
Each Subsidiary Guarantor, if any, 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 or
extension law or any usury law or other law that would prohibit or forgive such
Subsidiary Guarantor from performing a Subsidiary Guarantee as contemplated
herein, wherever enacted, now or at any time hereafter in force, or which may
affect the covenants or the performance of this Indenture; and (to the extent
that it may lawfully do so) each Subsidiary Guarantor, if any, hereby expressly
waives all benefit or advantage of any such law, and covenants that it will not
hinder, delay or impede the execution of any power herein granted to the
Trustee, but will suffer and permit the execution of every such power as though
no such law had been enacted.
ARTICLE XI
MISCELLANEOUS
SECTION XI.1 Trust Indenture Act Controls.
If and to the extent that any provision of this Indenture
limits, qualifies or conflicts with the duties imposed by, or with another
provision (an "incorporated provision") included in this Indenture by operation
of, Sections 310 to 318, inclusive, of the TIA, such imposed duties or
incorporated provision shall control.
SECTION XI.2 Notices.
Any notice or communication shall be deemed given if in
writing and delivered in Person or mailed by first-class mail, addressed as
follows, and received by the addressee:
(a) if to the Issuers or any Subsidiary Guarantor:
Sprint Spectrum L.P.
4900 Main Street
12th Floor
Kansas City, Missouri 64112
Attention: Joseph M. Gensheimer, Esq.
(b) if to the Trustee:
The Bank of New York
101 Barclay Street
Floor 21 West
New York, New York 10286
Attention: Corporate Trust Trustee Administration
The Issuers or the Trustee by notice to the other may
designate additional or different addresses for subsequent notices or
communications.
Any notice or communication mailed to a Holder of a Security,
including any notice delivered in connection with TIA ss. 310(b), TIA ss.
313(c), TIA ss. 314(a) and TIA ss. 315(b), shall be mailed to him, first-class
postage prepaid, at his address as it appears on the registration books of the
Registrar and shall be deemed given to him if so mailed within the time
prescribed.
Failure to mail a notice or communication to a Securityholder
or any defect in it shall not affect its sufficiency with respect to other
Securityholders. Except for a notice to the Trustee, which is deemed given only
when received, if a notice or communication is mailed in the manner provided
above, it is duly given, whether or not the addressee receives it.
SECTION XI.3 Communications by Holders with Other
Holders.
Securityholders may communicate pursuant to TIA ss. 312(b)
with other Securityholders with respect to their rights under this Indenture or
the Securities. The Issuers, the Trustee, the Registrar and any other Person
shall have the protection of TIA ss. 312(c).
SECTION XI.4 Certificate and Opinion of Counsel
as to Conditions Precedent.
Upon any request or application by the Issuers or any
Subsidiary Guarantor to the Trustee to take any action under this Indenture, the
Issuers or any Subsidiary Guarantor, as the case may be, shall furnish to the
Trustee (a) Officers' Certificates in form and substance satisfactory to the
Trustee stating that, in the opinion of the signers, all conditions precedent,
if any, provided for in this Indenture relating to the proposed action have been
complied with, (b) Opinions of Counsel in form and substance satisfactory to the
Trustee stating that, in the opinion of such counsel, all such conditions have
been complied with and (c) where applicable, a certificate or opinion by an
accountant that complies with TIA ss. 314(c).
SECTION XI.5 Statements Required in Certificate
and Opinion of Counsel.
Each certificate and Opinion of Counsel with respect to
compliance with a condition or covenant provided for in this Indenture shall
include:
(a) a statement that the Person making such certificate
or Opinion of Counsel has read such covenant or condition;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements contained in
such certificate or Opinion of Counsel are based;
(c) 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
(d) a statement as to whether or not, in the opinion of
such Person, such condition or covenant has been complied with.
SECTION XI.6 Rules by Trustee, Paying Agent,
Registrar.
The Trustee may make reasonable rules in accordance with the
Trustee's customary practices for action by or at a meeting of Securityholders.
The Paying Agent or Registrar may make reasonable rules for its functions.
SECTION XI.7 Legal Holidays.
If a payment date is a Legal Holiday at a place of payment,
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 XI.8 Governing Law.
The internal laws of the State of New York shall govern this
Indenture, the Securities and any Subsidiary Guarantees without regard to
principles of conflict of laws.
SECTION XI.9 No Recourse Against Others.
A trustee, director, officer, employee, stockholder, partner,
organizer or incorporator, as such, of the Issuers or a Subsidiary Guarantor
(including Sprint Spectrum Holding Company, L.P. and the Partners (and the
Affiliates of the Partners)) shall not have any liability for any obligations
of the Issuers or a Subsidiary Guarantor under the
Securities, this Indenture or any Subsidiary Guarantee or for any claim based
on, in respect of or by reason of such obligations or their creation. Each
Securityholder by accepting a Security waives and releases all such liability.
SECTION XI.10 Successors.
All agreements of the Issuers and any Subsidiary Guarantors in
this Indenture, the Securities and any Subsidiary Guarantees shall bind their
respective successors. All agreements of the Trustee in this Indenture shall
bind its successor.
SECTION XI.11 Duplicate Originals.
The parties may sign any number of copies of this Indenture.
Each signed copy shall be an original, but all of them together represent the
same agreement.
SECTION XI.12 Joint and Several Obligations.
Each of the Issuers shall have joint and several liability in
respect of all obligations hereunder. Each Issuer hereby acknowledges that this
Agreement is the independent and several obligation of each of the Issuers and
may be enforced against either Issuer separately, whether or not enforcement of
any right or remedy hereunder has been sought against any other party hereto.
Each Issuer hereby expressly waives, with respect to any of the amounts owing
hereunder by any other Issuer in respect of the obligations (collectively, the
"Other Obligations"), diligence, presentment, demand of payment, protest and all
notices whatsoever, and any requirement that any other party exhaust any right,
power or remedy or proceed against such other Issuer under this Indenture or
against any other Person under any other guarantee of, or security for, any of
such Other Obligations.
SECTION XI.13 Separability.
In case any provision in this Indenture, the Securities or in
any Subsidiary Guarantee 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, and a Holder shall have no claim
therefor against any party hereto.
SECTION XI.14 Table of Contents, Headings, Etc.
The table of contents, cross-reference sheet and headings of
the Articles and Sections of this Indenture have been inserted for convenience
of reference only, and are not to be considered a part hereof, and shall in no
way modify or restrict any of the terms or provisions hereof.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed as of the date first written above.
SPRINT SPECTRUM L.P., as
Co-Issuer
By: Sprint Spectrum Holding
Company, L.P., its
General Partner
By: /s/ Robert M. Neumeister, Jr.
Name: Robert M. Neumeister, Jr.
Title: Chief Financial Officer
SPRINT SPECTRUM FINANCE
CORPORATION, as Co-Issuer
By: /s/ Robert M. Neumeister, Jr.
Name: Robert M. Neumeister, Jr.
Title: Chief Financial Officer
THE BANK OF NEW YORK,
as Trustee
By: /s/ Paul J. Schmalzel
Name: Paul J. Schmalzel
Title: Assistant Treasurer
<PAGE>
Exhibit A
SPRINT SPECTRUM L.P.
SPRINT SPECTRUM FINANCE CORPORATION
Cusip No.: 85207FAA6
No. $
11% SENIOR NOTE DUE 2006
Each of SPRINT SPECTRUM L.P. and SPRINT SPECTRUM FINANCE CORPORATION
promises to pay to Cede & Co. or registered assigns upon surrender hereof the
principal sum of Two Hundred and Fifty Million Dollars on August 15, 2006.
Interest Payment Dates: February 15, August 15 and at stated maturity.
By: Sprint Spectrum L.P.
By: Sprint Spectrum Holding
Company, L.P., its General
Partner
By:
Name:
Title:
By:
Name:
Title:
By: Sprint Spectrum Finance
Corporation
By:
Name:
Title:
By:
Name:
Title:
Dated:
<PAGE>
Certificate of Authentication
This is one of the Senior Notes due 2006 referred to in the
within-mentioned Indenture.
THE BANK OF NEW YORK, as Trustee
By:
Authorized Signatory
<PAGE>
(REVERSE OF SECURITY)
SPRINT SPECTRUM L.P.
SPRINT SPECTRUM FINANCE CORPORATION
11% SENIOR NOTE DUE 2006
1. Interest. SPRINT SPECTRUM L.P., a Delaware limited
partnership (the "Company"), and SPRINT SPECTRUM FINANCE CORPORATION, a Delaware
corporation ("FinCo" and, together with the Company, the "Issuers"), promise to
pay to the registered holder of this Security, until the principal hereof is
paid or duly provided for, interest on the principal amount set forth on the
face of this Security at a rate of 11% per annum. Interest on the Securities
will accrue from and including the most recent date to which interest has been
paid or duly provided for or, if no interest has been paid or duly provided for,
from and including August 23, 1996 through but excluding the date on which
interest is paid or duly provided for. Interest shall be payable in arrears on
each February 15 and August 15 and at stated maturity, commencing February 15,
1997. Interest will be computed on the basis of a 360-day year of twelve 30-day
months. Interest on overdue principal and on overdue installments of interest
will accrue at the rate of interest borne by this Security. Interest on any
overdue principal or interest shall be payable on demand.
2. Method of Payment. The Issuers will pay interest on the
Securities (except defaulted interest) to the registered Holder of this
Security. Holders must surrender Securities to a Paying Agent to collect
principal payments. The Issuers will pay principal and interest in money of the
United States that at the time of payment is legal tender for the payment of
public and private debts ("U.S. Legal Tender"). However, the Issuers may pay
principal and interest by wire transfer of Federal funds or interest by check
payable in U.S.
Legal Tender.
3. Paying Agent. Initially, The Bank of New York (the
"Trustee") will act as a Paying Agent. The Issuers may change any Paying Agent
without notice. Neither the Issuers nor any of their Affiliates may act as Pay-
ing Agent.
4. Indenture. The Issuers issued the Securities under an
Indenture dated as of August 15, 1996 (the "Indenture") among the Issuers and
the Trustee. This Security is one of an issue of Securities of the Issuers
issued, or to be issued, under the Indenture. Capitalized terms herein are used
as defined in the Indenture unless otherwise defined herein. The terms of the
Securities 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 amended from time to time. The Securities are subject to all
such terms, and Holders are referred to the Indenture and such Act for a
statement of them. The Securities are senior obligations of the Issuers limited
in aggregate principal amount to $250,000,000.
5. Subsidiary Guarantees. This Security may after the
date hereof be entitled to certain Subsidiary Guarantees made for the benefit of
the Holders pursuant to Section 4.11 of the Indenture.
6. Optional Redemption. The Issuers, at their option, may
redeem all or any of the Securities, in whole or in part, at any time on or
after August 15, 2001, at the redemption prices (expressed as percentages of
principal amount) set forth below, plus accrued and unpaid interest, if any, to
the redemption date, if redeemed during the 12-month period beginning on August
15 of the years indicated below:
Year Redemption Price
2001.................................... 105.500%
2002.................................... 103.667%
2003.................................... 101.833%
2004 and thereafter..................... 100.00%
7. Redemption Upon Public Equity Offering. Prior to August 15,
1999, the Issuers may redeem up to 35% of the originally issued principal amount
of the Securities at a redemption price equal to 111% of the principal amount of
the Securities so redeemed with the net proceeds of one or more Public Equity
Offerings of Common Equity Interests of (i) the Company, (ii) Holdings or (iii)
a Special Purpose Corporation, in any case, resulting in gross proceeds to (or
contributed to the Company in respect of Common Equity Interests) of at least
$100 million in the aggregate; provided that at least 65% of the originally
issued principal amount of the Securities would remain outstanding immediately
after giving effect to such redemption.
8. Notice of Redemption. Notice of redemption will be mailed
at least 30 days but not more than 60 days before the redemption date to each
Holder of Securities to be redeemed. On and after the Redemption Date, unless
the Issuers default in making the redemption payment, interest ceases to accrue
on Securities or portions thereof called for redemption.
9. Offers To Purchase. The Indenture provides that upon the
occurrence of a Change of Control or an Asset Sale and subject to further
limitations contained therein, the Issuers shall make an offer to purchase
outstanding Securities in accordance with the procedures set forth in the
Indenture.
10. Denominations. The Securities are in registered form
without coupons and only in denominations of $1,000 of principal amount and in-
tegral multiples thereof.
11. Persons Deemed Owners. The registered Holder of this
Security may be treated as the owner of this Security for all purposes.
12. Unclaimed Money. If money for the payment of principal or
interest remains unclaimed for one year, the Trustee or Paying Agent will pay
the money back to the Issuers or a Subsidiary Guarantor, as the case may be, at
its request. After that, Holders entitled to the money must look to the Issuers
or a Subsidiary Guarantor for payment as general creditors unless an "abandoned
property" law designates another Person.
13. Amendment, Supplement, Waiver, Etc. The Issuers, any
Subsidiary Guarantors and the Trustee (if a party thereto) may, without the
consent of the Holders of any outstanding Securities, amend, waive or supplement
the Indenture, the Securities or any Subsidiary Guarantee for certain specified
purposes, including, among other things, curing ambiguities, defects or
inconsistencies, maintaining the qualification of the Indenture under the Trust
Indenture Act of 1939, as amended, and making any change that does not adversely
affect the rights of any Holder. Other amendments and modifications of the
Indenture, the Securities or any Subsidiary Guarantee may be made by the
Issuers, any Subsidiary Guarantor and the Trustee with the consent of the
Holders of not less than a majority of the aggregate principal amount of the
outstanding Securities, subject to certain exceptions requiring the consent of
the Holders of the particular Securities to be affected.
14. Successor Corporation. When a successor corporation or
partnership, as the case may be, assumes all the obligations of its predecessor
under the Securities or a Subsidiary Guarantee, as the case may be, and the
Indenture and the transaction complies with the terms of Article V of the
Indenture, the predecessor corporation or partnership, as the case may be, will,
except as provided in Article V, be released from those obligations.
15. Restrictive Covenants. The Indenture contains certain
covenants that, among other things, limit the ability of the Company and the
Restricted Subsidiaries to make restricted payments, to incur indebtedness, to
create liens, to sell assets, to permit restrictions on dividends and other
payments by Restricted Subsidiaries to the Company, to consolidate, merge or
sell all or substantially all of its assets, to engage in transactions with
affiliates or to engage in certain businesses. The limitations are subject to a
number of important qualifications and exceptions. The Company must annually
report to the Trustee on compliance with such limitations.
16. Defaults and Remedies. Events of Default are set forth in
the Indenture. Subject to certain limitations in the Indenture, if an Event of
Default (other than an Event of Default specified in Section 6.1(a)(ix) or (x)
of the Indenture with respect to an Issuer) occurs and is continuing, then the
Holders of not less than 25% in aggregate principal amount of the outstanding
Securities may, and the Trustee upon the request of the Holders of not less than
25% in aggregate principal amount of the outstanding Securities shall, declare
the Default Amount of and any accrued interest on all of the Securities to be
due and payable immediately. If an Event of Default specified in Section
6.1(a)(ix) or (x) of the Indenture occurs with respect to an Issuer, the Default
Amount shall ipso facto become and be immediately due and payable without any
declaration or other act on the part of the Trustee or any Holder. Holders may
not enforce the Indenture, the Securities or any Subsidiary Guarantee except as
provided in the Indenture. The Trustee may require indemnity satisfactory to it
before it enforces the Indenture, the Securities or any Subsidiary Guarantee.
Subject to certain limitations, Holders of a majority in principal amount of the
then outstanding Securities may direct the Trustee in its exercise of any trust
or power. The Trustee may withhold from Holders notice of any continuing default
(except a default in payment of the Default Amount, principal or interest) if it
determines that withholding notice is in their interests.
17. Trustee Dealings with Issuers. The Trustee, in its
individual or any other capacity, may make loans to, accept deposits from, and
perform services for the Issuers or their Affiliates, and may otherwise deal
with the Issuers or their Affiliates, as if it were not Trustee.
18. No Recourse Against Others. A director, officer, employee,
partner, stockholder or incorporator, as such, of the Issuers or any Subsidiary
Guarantor (including Holdings and the Partners (and the Affiliates of the
Partners)) shall not have any liability for any obligations of the Issuers or
any such Subsidiary Guarantor under the Indenture, the Securities or any
Subsidiary Guarantee or for any claim based on, in respect of, or by reason of,
such obligations or their creation. Each Holder by accepting a Security waives
and releases all such liability. The waiver and release are part of the
consideration for the issue of the Securities and any Subsidiary Guarantee.
19. Discharge. The Issuers' and any Subsidiary Guarantor's
obligations pursuant to the Indenture will be discharged, except for obligations
pursuant to certain sections thereof, subject to the terms of the Indenture,
upon the payment of all the Securities or upon the irrevocable deposit with the
Trustee of U.S. Legal Tender or U.S. Government Obligations sufficient to pay
when due principal of and interest on the Securities to maturity or redemption,
as the case may be.
20. Authentication. This Security shall not be valid un-
til the Trustee signs the certificate of authentication on the other side of
this Security.
The internal laws of the State of New York shall govern this
Security without regard to principles of conflict of laws.
The Company will furnish to any Holder upon written request
and without charge a copy of the Indenture. Requests may be made to:
SPRINT SPECTRUM L.P.
4900 Main Street
12th Floor
Kansas City, Missouri 64112
Attention: Joseph M. Gensheimer, Esq.
<PAGE>
ASSIGNMENT FORM
If you the Holder want to assign this Security, fill in the form below and have
your signature guaranteed:
I or we assign and transfer this Security to
(Insert assignee's social security or tax ID number) __________
(Print or type assignee's name, address and zip code)
and irrevocably appoint
agent to transfer this Security on the books of the Issuers. The agent may sub-
stitute another to act for him.
Date:______________ Your Signature:
(Sign exactly as your name appears on the
other side of this Security)
Signature Guarantee:
<PAGE>
OPTION OF HOLDER TO ELECT PURCHASE
If you wish to have this Security purchased by the Issuers pursuant to
Section 4.13 or 4.15 of the Indenture, check the Box: [ ]
If you wish to have a portion of this Security purchased by
the Issuers pursuant to Section 4.13 or 4.15 of the Indenture, state the amount:
$------------
Date: ________________ Your Signature: ____________________
Signature Guarantee: _______________________
<PAGE>
EXHIBIT B
SUBSIDIARY GUARANTEE
The undersigned hereby unconditionally guarantees on a senior
unsecured basis to the Holder of this Security the payments of principal of and
interest on this Security in the amounts and at the time when due and interest
on the overdue principal and interest, if any, of this Security, if lawful, and
the payment or performance of all other obligations of the Issuers under the
Indenture or the Securities, to the Holder of this Security and the Trustee, all
in accordance with and subject to the terms and limitations of this Security,
Article X of the Indenture and this Subsidiary Guarantee. This Subsidiary
Guarantee will become effective in accordance with Article X of the Indenture
and its terms shall be evidenced therein. The validity and enforceability of any
Subsidiary Guarantee shall not be affected by the fact that it is not affixed to
any particular Security.
The obligations of the undersigned to the Holders of
Securities and to the Trustee pursuant to this Subsidiary Guarantee and the
Indenture are expressly set forth in Article X of the Indenture and reference is
hereby made to the Indenture for the precise terms of this Subsidiary Guarantee
and all of the other provisions of the Indenture to which this Subsidiary
Guarantee relates.
The internal laws of the State of New York shall govern this
Subsidiary Guarantee without regard to principles of conflict of laws.
[ ]
By:
Name:
Title:
By:
Name:
Title:
Exhibit 4.3
SPRINT SPECTRUM L.P.
SPRINT SPECTRUM FINANCE CORPORATION,
as Issuers,
and
THE BANK OF NEW YORK,
as Trustee
----------------------------
INDENTURE
Dated as of August 15, 1996
-----------------------
$500,000,000 Principal Amount at Maturity
12 1/2% Senior Discount Notes due 2006
<PAGE>
CROSS-REFERENCE TABLE
TIA Section Indenture Section
ss. 310(a)(1) .............................................. 7.10; 11.1
(a)(2) ................................................ 7.10; 11.1
(a)(3) ................................................ N.A.
(a)(4) ................................................ N.A.
(b) ................................................ 7.8; 7.10; 11.2
(c) ................................................ N.A.
ss. 311(a) .............................................. 7.11
(b) ................................................ 7.11
(c) ................................................ N.A.
ss. 312(a) .............................................. 2.5
(b) ................................................ 11.3
(c) ................................................ 11.3
ss. 313(a) .............................................. 7.6
(b)(1) ................................................ 7.6
(b)(2) ................................................ 7.6
(c) ................................................ 7.6; 11.2
(d) ................................................ 7.6
ss. 314(a) .............................................. 4.6; 4.7; 11.2
(b) ................................................ N.A.
(c)(1) ................................................ 11.4
(c)(2) ................................................ 11.4
(c)(3) ................................................ 11.4
(d) ................................................ N.A.
(e) ................................................ 11.5
(f) ................................................ N.A.
ss. 315(a) .............................................. 7.1(b)
(b) ................................................ 7.5; 11.2
(c) ................................................ 7.1(a)
(d) ................................................ 7.1(c)
(e) ................................................ 6.11
ss. 316(a) (last sentence) .................................... 2.9
(a)(1)(A) ................................................ 6.5
(a)(1)(B) ................................................ 6.4
(a)(2) ................................................ N.A.
(b) ................................................ 6.7
ss. 317(a)(1) .............................................. 6.8
(a)(2) ................................................ 6.9
(b) ................................................ 2.4
ss. 318(a) .............................................. 11.1
- --------------------
N.A. means Not Applicable.
NOTE:This Cross-Reference Table shall not, for any purpose, be deemed to be a
part of this Indenture.
-i-
<PAGE>
TABLE OF CONTENTS
Section Page
ARTICLE I
DEFINITIONS AND
INCORPORATION BY REFERENCE
1.1 Definitions.......................................... 1
1.2 Incorporation by Reference of Trust
Indenture Act.................................... 23
1.3 Rules of Construction................................ 23
ARTICLE II
THE SECURITIES
2.1 Form and Dating...................................... 24
2.2 Execution and Authentication......................... 24
2.3 Registrar and Paying Agent........................... 25
2.4 Paying Agent To Hold Money in Trust.................. 25
2.5 Securityholder Lists................................. 26
2.6 Transfer and Exchange................................ 26
2.7 Replacement Securities............................... 27
2.8 Outstanding Securities............................... 27
2.9 Treasury Securities.................................. 28
2.10 Temporary Securities................................. 28
2.11 Cancellation......................................... 28
2.12 Defaulted Interest................................... 28
2.13 CUSIP Number......................................... 29
2.14 Deposit of Moneys.................................... 29
ARTICLE III
REDEMPTION
3.1 Election To Redeem; Notices to Trustee............... 29
3.2 Selection of Securities To Be Redeemed............... 30
3.3 Notice of Redemption................................. 30
3.4 Effect of Notice of Redemption....................... 32
3.5 Deposit of Redemption Price.......................... 32
3.6 Securities Redeemed in Part.......................... 32
ARTICLE IV
COVENANTS
4.1 Payment of Securities................................ 32
4.2 Maintenance of Office or Agency...................... 33
4.3 Corporate or Partnership Existence................... 33
4.4 Payment of Taxes and Other Claims.................... 34
4.5 Maintenance of Properties; Insurance;
Books and Records; Compliance with Law........... 34
4.6 Compliance Certificates.............................. 35
4.7 Reports.............................................. 35
4.8 Limitation on Additional Indebtedness................ 36
4.9 Limitation on Restricted Payments.................... 38
4.10 Limitation on Liens Securing Certain
Indebtedness..................................... 41
4.11 Limitation on Issuance of Certain Guarantees
by, and Debt Securities of, Restricted
Subsidiaries..................................... 41
4.12 Limitation on Dividends and Other Payment
Restrictions Affecting Restricted
Subsidiaries..................................... 41
4.13 Disposition of Proceeds of Asset Sales............... 42
4.14 Limitation on Transactions with Equityholders
and Affiliates................................... 46
4.15 Change of Control.................................... 47
4.16 Limitation on Designations of Unrestricted
Subsidiaries..................................... 49
4.17 Limitation on Activities of the Issuers and
the Restricted Subsidiaries...................... 51
4.18 Limitation on Ownership of Equity Interests
of Restricted Subsidiaries....................... 51
4.19 Amendments to Capital Contribution
Agreement........................................ 52
4.20 Waiver of Stay, Extension or Usury Laws.............. 52
-ii-
<PAGE>
ARTICLE V
SUCCESSOR CORPORATION
5.1 Consolidation, Merger, Sale of Assets, Etc........... 52
5.2 Successor Entity Substituted......................... 54
5.3 Status of Subsidiaries............................... 55
ARTICLE VI
DEFAULT AND REMEDIES
6.1 Events of Default.................................... 55
6.2 Acceleration......................................... 57
6.3 Other Remedies....................................... 58
6.4 Waiver of Past Default............................... 58
6.5 Control by Majority.................................. 58
6.6 Limitation on Suits.................................. 59
6.7 Rights of Holders To Receive Payment................. 59
6.8 Collection Suit by Trustee........................... 60
6.9 Trustee May File Proofs of Claim..................... 60
6.10 Priorities........................................... 61
6.11 Undertaking for Costs................................ 61
ARTICLE VII
TRUSTEE
7.1 Duties of Trustee.................................... 61
7.2 Rights of Trustee.................................... 63
7.3 Individual Rights of Trustee......................... 64
7.4 Trustee's Disclaimer................................. 64
7.5 Notice of Defaults................................... 65
7.6 Reports by Trustee to Holders........................ 65
7.7 Compensation and Indemnity........................... 66
7.8 Replacement of Trustee............................... 66
7.9 Successor Trustee by Merger, Etc..................... 67
7.10 Eligibility; Disqualification........................ 67
7.11 Preferential Collection of Claims Against
Issuers.......................................... 68
7.12 Money Held in Trust.................................. 68
7.13 Preferred Collection of Claims....................... 68
ARTICLE VIII
DISCHARGE OF INDENTURE; DEFEASANCE
8.1 Satisfaction and Discharge........................... 68
8.2 Legal Defeasance and Covenant Defeasance.............. 69
8.3 Application of Trust Money........................... 72
8.4 Repayment to the Issuers or a Subsidiary
Guarantor........................................ 72
8.5 Reinstatement........................................ 73
ARTICLE IX
AMENDMENTS, SUPPLEMENTS AND WAIVERS
9.1 Without Consent of Holders........................... 74
9.2 With Consent of Holders.............................. 74
9.3 Compliance with Trust Indenture Act.................. 76
9.4 Revocation and Effect of Amendments and
Consents......................................... 76
9.5 Notation on or Exchange of Securities................. 77
9.6 Trustee To Sign Amendments, Etc...................... 77
-iii-
<PAGE>
ARTICLE X
GUARANTEE
10.1 Unconditional Guarantee.............................. 77
10.2 Severability......................................... 78
10.3 Limitation of Liability.............................. 78
10.4 Subsidiary Guarantors May Consolidate, etc.,
on Certain Terms................................. 80
10.5 Contribution......................................... 80
10.6 Waiver of Subrogation................................ 81
10.7 Execution of Guarantee............................... 82
10.8 Waiver of Stay, Extension or Usury Laws.............. 82
ARTICLE XI
MISCELLANEOUS
11.1 Trust Indenture Act Controls......................... 82
11.2 Notices.............................................. 82
11.3 Communications by Holders with Other Holders......... 83
11.4 Certificate and Opinion of Counsel as to
Conditions Precedent............................. 83
11.5 Statements Required in Certificate and Opinion
of Counsel....................................... 84
11.6 Rules by Trustee, Paying Agent, Registrar............ 84
11.7 Legal Holidays....................................... 84
11.8 Governing Law........................................ 85
11.9 No Recourse Against Others........................... 85
11.10 Successors........................................... 85
11.11 Duplicate Originals.................................. 85
11.12 Joint and Several Obligation......................... 85
11.13 Separability......................................... 86
11.14 Table of Contents, Headings, Etc..................... 86
SIGNATURES ..................................................... 93
EXHIBIT A - Form of Security
EXHIBIT B - Form of Subsidiary Guarantee
-iv-
<PAGE>
INDENTURE dated as of August 15, 1996 by and among SPRINT
SPECTRUM L.P., a Delaware limited partnership (the "Company"), SPRINT SPECTRUM
FINANCE CORPORATION, a Delaware corporation ("FinCo" and, together with the
Company, the "Issuers"), and THE BANK OF NEW YORK, a New York banking
corporation, as Trustee (the "Trustee").
The Issuers have duly authorized the execution and delivery of
this Indenture to provide for the issuance of the Securities to be issued as
provided for in this Indenture. All things necessary to make the Securities the
valid and binding obligations of the Issuers, and to make this Indenture a valid
and binding agreement of each of the Issuers, have been done.
The parties hereto agree as follows for the benefit of each
other and for the equal and ratable benefit of the Holders of the Securities:
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION I.1 Definitions.
"Accreted Value" as of any date (the "Specified Date") means,
with respect to each $1,000 principal amount at maturity of the Securities:
(i) if the Specified Date is one of the following dates
(each a "Semi-Annual Accrual Date"), the amount set forth opposite such
date below:
Semi-Annual Accreted
Accrual Date Value
Issue Date........................................ $546.87
February 15, 1997................................. 579.48
August 15, 1997................................... 615.70
February 15, 1998................................. 654.18
August 15, 1998................................... 695.07
February 15, 1999................................. 735.51
August 15, 1999................................... 784.66
February 15, 2000................................. 833.71
August 15, 2000................................... 885.81
February 15, 2001................................. 941.18
August 15, 2001................................... $1,000.00;
(ii) if the Specified Date occurs between two Semi-Annual
Accrual Dates, the sum of (a) the Accreted Value for the Semi-Annual
Accrual Date immediately preceding the Specified Date and (b) an amount
equal to the product of (x) the Accreted Value for the immediately
following Semi-Annual Accrual Date less the Accreted Value for the
immediately preceding Semi-Annual Accrual Date and (y) a fraction, the
numerator of which is the number of days actually elapsed from the
immediately preceding Semi-Annual Accrual Date to the Specified Date
and the denominator of which is 180; and
(iii) if the Specified Date is after August 15, 2001, $1,000.
"Acquired Indebtedness" means Indebtedness of a Person
existing at the time such Person becomes a Restricted Subsidiary or assumed in
connection with an Asset Acquisition by such Person and not incurred in
connection with, or in anticipation of, such Person becoming a Restricted
Subsidiary or such Asset Acquisition.
"Affiliate" of any specified Person means any other Person
which, directly or indirectly, controls, is controlled by or is under direct or
indirect common control with, such specified Person. For the purposes of this
definition, (i) "control" when used with respect to any Person means the power
to direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise,
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing and (ii) each of the Partners shall be deemed an Affiliate of the
Company.
"Affiliate Transaction" has the meaning provided in Section
4.14.
"Agent" means any Registrar, Paying Agent or co-registrar.
"Annualized Pro Forma Consolidated Operating Cash Flow" means
Consolidated Operating Cash Flow for the latest two full fiscal quarters for
which consolidated financial statements of the Company are available multiplied
by two. For purposes of calculating "Consolidated Operating Cash Flow" for any
period for purposes of this definition only, (i) any Subsidiary of the Company
that is a Restricted Subsidiary on the date of the transaction giving rise to
the need to calculate "Annualized Pro Forma Consolidated Operating Cash Flow"
(the "Transaction Date") shall be deemed to have been a Restricted Subsidiary at
all times during such period and (ii) any Subsidiary of the Company that is not
a Restricted Subsidiary on the Transaction Date shall be deemed not to have been
a Restricted Subsidiary at any time during such period. In addition to and
without limitation of the foregoing, for purposes of this definition only,
"Consolidated Operating Cash Flow" shall be calculated after giving effect on a
pro forma basis for the applicable period to, without duplication, any Asset
Sales or Asset Acquisitions (including, without limitation, any Asset
Acquisition giving rise to the need to make such calculation as a result of the
Company or one of the Restricted Subsidiaries (including any Person who becomes
a Restricted Subsidiary as a result of the Asset Acquisition) incurring,
assuming or otherwise being liable for Acquired Indebtedness) occurring during
the period commencing on the first day of such two fiscal quarter period to and
including the Transaction Date (the "Reference Period"), as if such Asset Sale
or Asset Acquisition occurred on the first day of the Reference Period.
"APC" means American PCS, L.P., a Delaware limited partner-
ship.
"Asset Acquisition" means (i) any purchase or other
acquisition (by means of transfer of cash or other property to others or payment
for property or services for the account or use of others, or otherwise) of
Equity Interests of any Person by the Company or any Restricted Subsidiary, in
either case, pursuant to which such Person shall become a Restricted Subsidiary
or shall be merged with or into the Company or any Restricted Subsidiary or (ii)
any acquisition by the Company or any Restricted Subsidiary of the assets of any
Person which constitute substantially all of an operating unit or line of
business of such Person.
"Asset Sale" means any direct or indirect sale, conveyance,
transfer, lease or other disposition to any Person other than the Company or a
Wholly-Owned Restricted Subsidiary, in one transaction or a series of related
transactions, of (i) any Equity Interests of any Restricted Subsidiary, (ii) any
FCC license for the provision of wireless telecommunications services held by
the Company or any Restricted Subsidiary (whether by sale of Equity Interests or
otherwise) or (iii) any other property or asset of the Company or any Restricted
Subsidiary outside of the ordinary course of business. For the purposes of this
definition, the term "Asset Sale" shall not include any disposition of
properties or assets of the Company or one or more of the Restricted
Subsidiaries in a transaction that either (x) involves aggregate consideration
of $5.0 million or less or (y) is governed by and complies with Section 5.1.
"Asset Sale Offer" has the meaning provided in Section 4.13.
"Asset Sale Payment Date" has the meaning provided in Section
4.13.
"Available Operating Cash Flow" means, for any period, the
positive cumulative Consolidated Operating Cash Flow realized during such period
or, if such cumulative Consolidated Operating Cash Flow for such period is
negative, the negative amount by which cumulative Consolidated Operating Cash
Flow is less than zero.
"Average Life to Stated Maturity" means, with respect to any
Indebtedness, as at any date of determination, the quotient obtained by dividing
(i) the sum of the products of (a) the number of years (or any fraction thereof)
from such date to the date or dates of each successive scheduled principal
payment (including, without limitation, any sinking fund requirements) of such
Indebtedness multiplied by (b) the amount of each such principal payment by (ii)
the sum of all such principal payments.
"Bank Credit Facility" means the credit facilities
contemplated by the Commitment Letter dated June 7, 1996 among the Company,
Chase Securities Inc. and Chemical Bank, as the same may be amended, modified,
renewed, refunded, replaced or refinanced from time to time.
"Bankruptcy Law" means Title 11 of the U.S. Code or any other
similar Federal, state or foreign law for the relief of debtors.
"Board" of any Person means the board of directors, management
committee or other governing body of such Person. For purposes of this
definition, while the Company is a partnership, "Board" shall mean, with respect
to the Company, the Partnership Board established under the Holdings Partnership
Agreement and any Person to whom appropriate authority has been delegated by
such Partnership Board.
"Business Day" means any day except a Saturday, a Sunday or
any day on which banking institutions in New York, New York or Kansas City,
Missouri, are required or authorized by law or other governmental action to be
closed.
"Cable Partner" means each of TCI Telephony Services, Inc.,
Comcast Telephony Service and Cox Telephony Partnership.
"Capitalized Lease Obligation" means any obligation to pay
rent or other amounts under a lease of (or other agreement conveying the right
to use) any property (whether real, personal or mixed) that is required to be
classified and accounted for as a capital lease obligation under GAAP and, for
the purpose of this Indenture, the amount of such obligation at any date shall
be the capitalized amount thereof at such date, determined in accordance with
GAAP.
"Cash Equivalents" means (i) any evidence of Indebtedness with
a maturity of 365 days or less issued by or directly, fully and unconditionally
guaranteed or insured by the United States of America or any agency or
instrumentality thereof (provided that the full faith and credit of the United
States of America is pledged in support thereof); (ii) deposits, certificates of
deposit or acceptances with a maturity of 365 days or less of any institution
that is a member of the Federal Reserve System having combined capital and
surplus and undivided profits of not less than $500.0 million; (iii) commercial
paper with a maturity of 365 days or less issued by a corporation (other than an
Affiliate of the Company) incorporated or organized under the laws of the United
States or any state thereof or the District of Columbia and rated at least "A-1"
by S&P or "P-1" by Moody's; (iv) repurchase agreements and reverse repurchase
agreements relating to marketable direct obligations issued by or directly,
fully and unconditionally guaranteed or insured by the United States of America
or any agency or instrumentality thereof (provided that the full faith and
credit of the United States of America is pledged in support thereof), in each
case, maturing within 365 days from the date of acquisition and (v) any "Cash
Equivalents" as defined in the Bank Credit Facility as in effect on the Issue
Date.
"Change of Control" means the occurrence of any of the
following events: (i) any "person" or "group" (as such terms are used in
Sections 13(d) and 14(d) of the Exchange Act) other than a Permitted Holder or
Permitted Holders or a Person or group controlled by a Permitted Holder or
Permitted Holders is or becomes the "beneficial owner" (as defined in Rules
13d-3 and 13d-5 under the Exchange Act, except that a Person shall be deemed to
have "beneficial ownership" of all securities that such Person has the right to
acquire, whether such right is exercisable immediately or only after the passage
of time, upon the happening of an event or otherwise), directly or indirectly,
of more than 40% of the total Voting Equity Interests of the Company or
Holdings; provided a Permitted Holder or Permitted Holders or a group controlled
by a Permitted Holder or Permitted Holders does not own a greater percentage of
the total Voting Equity Interests of the Company or Holdings, as the case may
be; (ii) the Company or Holdings consolidates with, or 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
consolidates with, or merges with or into, the Company or Holdings, in any such
event pursuant to a transaction in which the outstanding Voting Equity Interests
of the Company or Holdings are converted into or exchanged for cash, securities
or other property, and immediately after such transaction a "person" or "group"
(as such terms are used in Sections 13(d) and 14(d) of the Exchange Act) other
than a Permitted Holder or Permitted Holders or a Person or group controlled by
a Permitted Holder or Permitted Holders is the "beneficial owner" (as defined in
Rules 13d-3 and 13d-5 under the Exchange Act, except that a Person shall be
deemed to have "beneficial ownership" of all securities that such Person has the
right to acquire, whether such right is exercisable immediately or only after
the passage of time, upon the happening of an event or otherwise), directly or
indirectly, of more than 40% of the total Voting Equity Interests of the
surviving or transferee Person; provided a Permitted Holder or Permitted Holders
or a Person or group controlled by a Permitted Holder or Permitted Holders does
not own a greater percentage of the total Voting Equity Interests of such
Person; and (iii) the approval by the holders of Equity Interests of the Company
or Holdings of any plan or proposal for the liquidation or dissolution of the
Company or Holdings.
"Change of Control Date" has the meaning provided in Section
4.15.
"Change of Control Offer" has the meaning provided in Section
4.15.
"Change of Control Payment Date" has the meaning provided in
Section 4.15.
"Commission" means the Securities and Exchange Commission.
"Common Equity Interests" means (i) with respect to a Person
which is a corporation, any and all shares, interests or other participations
in, and other equivalents (however designated and whether voting or nonvoting)
of, such Person's common stock and includes, without limitation, all series and
classes of such common stock and (ii) with respect to a Person which is not a
corporation, Equity Interests which have characteristics similar in all material
respects to those of common stock of a corporation.
"Company" means the party named as such in this Indenture
until a successor replaces it in accordance with the provisions of this
Indenture and, thereafter, means the successor.
"Consolidated Income Tax Expense" means, with respect to any
period, the provision for Federal, state, local, foreign and other income taxes
of the Company and the Restricted Subsidiaries for such period as determined on
a consolidated basis in accordance with GAAP.
"Consolidated Interest Expense" means, with respect to any
period, without duplication, the sum of (i) the interest expense of the Company
and the Restricted Subsidiaries for such period as determined on a consolidated
basis in accordance with GAAP and shall, in any event, include, without
limitation, (a) any amortization of debt discount, (b) the net cost or net
benefit, as the case may be, under any Currency Agreements and Interest Rate
Protection Obligations (including any amortization of discounts), (c) the
interest portion of any deferred payment obligation, (d) all commissions,
discounts and other fees and charges owed with respect to letters of credit,
bills of exchange, promissory notes and bankers' acceptance financing and (e)
all accrued interest, (ii) all but the principal component of Capitalized Lease
Obligations paid, accrued and/or scheduled to be paid or accrued by the Company
and the Restricted Subsidiaries during such period as determined on a
consolidated basis in accordance with GAAP and (iii) the aggregate amount of
dividends and distributions paid or accrued during such period in respect of
Preferred Equity Interests of the Company and the Restricted Subsidiaries (other
than such dividends or distributions paid or accrued on or with respect to
Preferred Equity Interests owned by the Company or a Wholly-Owned Restricted
Subsidiary) determined on a consolidated basis in accordance with GAAP.
"Consolidated Net Income" means, with respect to any period,
the net income (loss) of the Company and the Restricted Subsidiaries for such
period as determined on a consolidated basis in accordance with GAAP, adjusted,
to the extent included in calculating such net income, by excluding, without
duplication, (i) all extraordinary gains or losses, (ii) the portion of net
income (but not losses) of the Company allocable to minority interests in
unconsolidated Persons, except to the extent that cash dividends or
distributions have actually been received by the Company or any Restricted
Subsidiary, (iii) net income (or loss) of any Person combined with the Company
or a Restricted Subsidiary on a "pooling of interests" basis attributable to any
period prior to the date of combination, (iv) gains in respect of any Asset
Sales, (v) the net income of any Unrestricted Subsidiary, except to the extent
that cash dividends or distributions have actually been received by the Company
or a Restricted Subsidiary, (vi) the portion of net income (but not losses) of
the Company allocable to minority interests in Restricted Subsidiaries (other
than a Subsidiary Guarantor) of such person and (vii) the net income of any
Restricted Subsidiary (other than a Subsidiary Guarantor) for such period to the
extent the declaration of dividends or similar distributions by that Restricted
Subsidiary is not at the time permitted, directly or indirectly, by the terms of
its charter or any agreement, instrument, judgment, decree, order, statute, rule
or regulation applicable to that Restricted Subsidiary.
"Consolidated Operating Cash Flow" means, with respect to any
period, the Consolidated Net Income of the Company and the Restricted
Subsidiaries for such period (i) increased by (to the extent included in
computing Consolidated Net Income) the sum of (a) Consolidated Income Tax
Expense for such period; (b) Consolidated Interest Expense for such period; (c)
depreciation of the Company and the Restricted Subsidiaries for such period,
determined on a consolidated basis in accordance with GAAP; (d) amortization of
the Company and the Restricted Subsidiaries for such period, including, without
limitation and without duplication, amortization of any Consolidated Interest
Expense and amortization of capitalized debt issuance costs for such period, all
determined on a consolidated basis in accordance with GAAP; and (e) any other
non-cash charges that were deducted in computing Consolidated Net Income
(excluding any non-cash charge which requires an accrual or reserve for cash
charges for any future period) of the Company and the Restricted Subsidiaries
for such period in accordance with GAAP and (ii) decreased by any non-cash gains
that were included in computing Consolidated Net Income.
"consolidation" means, with respect to the Company, the
consolidation of the accounts of the Restricted Subsidiaries with those of the
Company, all in accordance with GAAP; provided that "consolidation" will not
include consolidation of the accounts of any Unrestricted Subsidiary with the
accounts of the Company.
The term "consolidated" has a correlative meaning to the foregoing.
"covenant defeasance" has the meaning provided in Section 8.2.
"Currency Agreement" means any foreign exchange contract,
currency swap agreement or other similar agreement or arrangement designed to
protect against fluctuations in currency values.
"Debt Instrument" has the meaning provided in Section 6.1.
"Debt Securities" means any debt securities (including any
guarantee of such securities) issued by any Issuer and/or any Restricted
Subsidiary in connection with a public offering (whether or not underwritten) or
a private placement (provided such private placement is underwritten for resale
pursuant to Rule 144A, Regulation S or otherwise under the Securities Act or
sold on an agency basis by a broker-dealer or one of its Affiliates to 10 or
more beneficial holders), it being understood that the term "Debt Securities"
shall not include any evidence of Indebtedness under any of the Vendor Credit
Facilities or the Bank Credit Facility or any other commercial bank borrowings
or similar borrowings, recourse transfers of financial assets, capital leases or
other types of borrowings incurred in a manner not customarily viewed as a
"securities offering."
"Default" means any event that is, or after notice or passage
of time or both would be, an Event of Default.
"Default Amount" means, (i) as of any date prior to August 15,
2001, the Accreted Value of all outstanding Securities (plus any applicable
premium thereon) as of such date and (ii) as of any date on or after August 15,
2001, 100% of the principal amount at maturity of all outstanding Securities
(plus any applicable premium thereon), plus accrued and unpaid interest, if any,
thereon.
"Designation" has the meaning provided in Section 4.16.
"Designation Amount" has the meaning provided in Section 4.16.
"Disinterested Director" means, with respect to any
transaction or series of transactions, a member of the Board of the Company or
Holdings, as the case may be, other than any such Board member who has any
material direct or indirect financial interest in or with respect to such
transaction or series of transactions.
"Disqualified Equity Interest" means, with respect to any
Person, any Equity Interest that, by its terms (or by the terms of any security
into which it is convertible or for which it is mandatorily exchangeable), or
upon the happening of any event, matures or is mandatorily redeemable, pursuant
to a sinking fund obligation or otherwise, or is exchangeable for Indebtedness
at the option of the holder thereof, or is redeemable at the option of the
holder thereof, in whole or in part, on or prior to the final maturity date of
the Securities.
"EquipmentCo" means Sprint Spectrum Equipment Company, L.P., a
Delaware limited partnership.
"Equity Interest" in 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, in such Person.
"Event of Default" has the meaning provided in Section 6.1.
"Excess Proceeds" has the meaning provided in Section 4.13.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Excluded Cash Proceeds" means (i) any net cash proceeds used
to make a concurrent Investment constituting a Restricted Payment pursuant to
clause (iv) of the third paragraph of Section 4.9 and (ii) the first $1.4
billion of net cash proceeds received by the Company after December 31, 1995
from capital contributions in respect of existing Equity Interests (other than
Disqualified Equity Interests) of the Company or from the issue or sale (other
than to a Restricted Subsidiary) of Equity Interests (other than Disqualified
Equity Interests) of the Company; provided that (A) net cash proceeds referred
to in the immediately preceding clause (i), (B) net cash proceeds used to make
an Investment in APC or (C) net cash proceeds used to make an investment
pursuant to clauses (ii) or (iii)(a) of the third paragraph of Section 4.9 shall
not be included as part of the first $1.4 billion referred to in this clause
(ii).
"Fair Market Value" means, with respect to any asset or
property, the price that could be negotiated in an arms'-length free market
transaction, for cash, between a willing seller and a willing buyer, neither of
whom is under pressure or compulsion to complete the transaction. Unless
otherwise specified in this Indenture, Fair Market Value shall be determined by
the Board of the Company acting in good faith.
"FinCo" means the party named as such in this Indenture until
a successor replaces it in accordance with the provisions of this Indenture and,
thereafter, means the successor.
"FCC" means the Federal Communications Commission.
"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 may be approved by a significant segment of
the accounting profession of the United States of America, which are applicable
on the Issue Date.
"guarantee" means, as applied to any obligation, (i) a
guarantee (other than by endorsement of negotiable instruments for collection in
the ordinary course of business), directly or indirectly, in any manner, of any
part or all of such obligation and (ii) an agreement, direct or indirect,
contingent or otherwise, the effect of which is to assure in any way the payment
or performance (or payment of damages in the event of non-performance) of all or
any part of such obligation (other than an agreement to make a capital
contribution that otherwise is permitted by Section 4.9), including, without
limiting the foregoing, the payment of amounts drawn down under letters of
credit.
"Holder" or "Securityholder" means the Person in whose name a
Security is registered on the Registrar's books.
"Holdings" means Sprint Spectrum Holding Company, L.P., a Del-
aware limited partnership.
"Holdings Partnership Agreement" means the Amended and
Restated Agreement of Limited Partnership of Holdings dated as of January 31,
1996.
"incur" has the meaning provided in Section 4.8.
"Indebtedness" means, with respect to any Person, without
duplication, (i) any liability, contingent or otherwise, of such Person (a) for
borrowed money (whether or not the recourse of the lender is to the whole of the
assets of such Person or only to a portion thereof), whether as a cash advance,
bill, overdraft or money market facility loan, or (b) evidenced by a note,
debenture or similar instrument or letters of credit (including a purchase money
obligation) or by any book-entry mechanism or (c) for the payment of money
relating to a Capitalized Lease Obligation or other obligation relating to the
deferred purchase price of property or (d) in respect of any Interest Rate
Protection Obligation or any Currency Agreement; (ii) any liability of others of
the kind described in the preceding clause (i) which the Person has guaranteed
or which is otherwise its legal liability; (iii) any obligation secured by a
Lien to which the property or assets of such Person are subject, whether or not
the obligations secured thereby shall have been assumed by or shall otherwise be
such Person's legal liability; and (iv) the greater of the maximum repurchase or
redemption price or liquidation preference of any Disqualified Equity Interests
of such Person or, with respect to any Restricted Subsidiary of such Person, of
any Equity Interests (other than Common Equity Interests) of such Restricted
Subsidiary. In no event shall "Indebtedness" include trade payables incurred in
the ordinary course of business. For purposes of Section 4.8 and for purposes of
Section 6.1, in determining the principal amount of any Indebtedness (l) to be
incurred by the Company or a Restricted Subsidiary or which is outstanding at
any date, (x) the principal amount of any Indebtedness which provides that an
amount less than the principal amount thereof shall be due upon any declaration
of acceleration thereof shall be the accreted value thereof at the date of
determination and (y) effect shall be given to the impact of any Currency
Agreements with respect to such Indebtedness and (2) outstanding at any time
under any Currency Agreement of the Company or any Restricted Subsidiary, the
principal amount shall be the net payment obligation under such Currency
Agreement at such time.
"Indenture" means this Indenture as amended or supplemented
from time to time pursuant to the terms hereof.
"Independent Financial Advisor" means an investment banking
firm of national standing in the United States which, in the good faith judgment
of the Board of the Company, is independent with respect to the Company and its
Affiliates and qualified to perform the task for which it is to be engaged.
"Interest Payment Date," when used with respect to any
Security, means the stated maturity of an installment of interest specified in
such Security.
"Interest Rate Protection Obligation" means the obligation of
any Person pursuant to any arrangement with any other Person whereby, directly
or indirectly, such Person is entitled to receive from time to time periodic
payments calculated by applying either a floating or a fixed rate of interest on
a stated notional amount in exchange for periodic payments made by such Person
calculated by applying a fixed or a floating rate of interest on the same
notional amount and shall include, without limitation, interest rate swaps,
caps, floors, collars, forward interest rate agreements and similar agreements.
"Investment" means, with respect to any Person, any advance,
loan or other extension of credit (including, without limitation, by means of
any guarantee) or any capital contribution to (by means of transfer of property
to others, payment for property or services for the account or use of others, or
otherwise), or any purchase or other acquisition of any Equity Interests, bonds,
notes, debentures or other securities of, any such Person. In addition, any
foreign exchange contract, currency swap agreement or other similar agreement
made or entered into by any Person shall constitute an Investment by such
Person.
"Issue Date" means the date of original issuance of Securities
under this Indenture.
"Issuers" means the Company and FinCo.
"legal defeasance" has the meaning provided in Section 8.2.
"Legal Holiday" means any day other than a Business Day.
"Lien" means any mortgage, charge, pledge, lien (statutory or
other), security interest, hypothecation or assignment for security.
"Lucent Credit Facility" means the credit facility
contemplated by the commitment letter dated June 21, 1996 between the Company
and Lucent Technologies, Inc., as the same may be amended, modified, renewed,
refunded, replaced or refinanced from time to time.
"Material Restricted Subsidiary" means any Restricted
Subsidiary which, at any date of determination, is (i) a "Significant
Subsidiary" (as that term is defined in Regulation S-X, as in effect on the
Issue Date, issued under the Securities Act), and/or (ii) holds any FCC license
for the transmission of wireless telecommunications services and/or (iii) any of
WirelessCo, RealtyCo or EquipmentCo.
"Maturity Date" means, with respect to any Security, the date
specified in such Security as the fixed date on which principal of such Security
is due and payable.
"Moody's" means Moody's Investors Service, Inc.
"Net Cash Proceeds" means, with respect to any Asset Sale, the
proceeds therefrom in the form of cash or Cash Equivalents, including payments
in respect of deferred payment obligations when received in the form of cash or
Cash Equivalents, net of (i) brokerage commissions and other fees and expenses
(including fees and expenses of legal counsel and investment bankers) related to
such Asset Sale, (ii) provisions for all taxes payable as a result of such Asset
Sale, (iii) amounts required to be paid to any Person (other than the Company or
any Restricted Subsidiary) owning a beneficial interest in or having a Lien on
the assets subject to the Asset Sale and (iv) appropriate amounts to be provided
by the Company or any Restricted Subsidiary, as the case may be, as a reserve
required in accordance with GAAP against any liabilities associated with such
Asset Sale and retained by the Company or any Restricted Subsidiary, as the case
may be, after such Asset Sale, including, without limitation, pension and other
post-employment benefit liabilities and liabilities under any indemnification
obligations associated with such Asset Sale.
"Nortel Credit Facility" means the credit facility
contemplated by the commitment letter dated June 11, 1996 between the Company
and Northern Telecom Inc., as the same may be amended, modified, renewed,
refunded, replaced or refinanced from time to time.
"Obligations" means any principal of, premium, if any, and
interest on, and any other amounts owing in respect of, the Securities payable
pursuant to the terms of the Securities or this Indenture or upon acceleration,
including amounts received upon the exercise of rights of rescission or other
rights of action (including claims for damages) or otherwise, to the extent
relating to the purchase price of the Securities or amounts corresponding to
such principal, premium, if any, interest on, or other amounts owing with
respect to, the Securities.
"Officer" means the Chief Executive Officer, Chairman of the
Partnership Board, the President, any Vice President, the Chief Financial
Officer, the Treasurer, the Secretary, the Chief Technology Officer, the Chief
Business Development Officer, the Chief Public Relations Officer or any Director
or Partnership Board Representative of either of the Issuers or any Subsidiary
Guarantor, as the case may be.
"Officers' Certificate" means a certificate signed by two
Officers or by an Officer and an Assistant Treasurer or Assistant Secretary of
either of the Issuers or any Subsidiary Guarantor, as the case may be.
"Opinion of Counsel" means a written opinion from legal
counsel who is acceptable to the Trustee, which may include an individual
employed as counsel to an Issuer or a Subsidiary Guarantor.
"Other Senior Debt Pro Rata Share" means the amount of the
applicable Excess Proceeds obtained by multiplying the amount of such Excess
Proceeds by a fraction, (i) the numerator of which is the aggregate accreted
value and/or principal amount, as the case may be, of all Indebtedness (other
than (x) the Securities and (y) Subordinated Indebtedness) of an Issuer and any
Subsidiary Guarantor outstanding at the time of the Asset Sale with respect to
which an Issuer or a Subsidiary Guarantor, as the case may be, is required to
use Excess Proceeds to repay or make an offer to purchase or repay and (ii) the
denominator of which is the sum of (a) the aggregate Accreted Value of all
Securities outstanding at the time of the Asset Sale Offer, (b) the aggregate
principal amount of all Senior Notes outstanding at the time of the Asset Sale
Offer and (c) the aggregate principal amount or the aggregate accreted value, as
the case may be, of all other Indebtedness (other than Subordinated
Indebtedness) of an Issuer or a Subsidiary Guarantor outstanding at the time of
the Asset Sale Offer with respect to which an Issuer or a Restricted Subsidiary,
as the case may be, is required to use the Excess Proceeds to offer to repay or
make an offer to purchase.
"Pari Passu Debt Securities" means any Debt Securities (and
any guarantee of any Debt Security) which would not constitute Subordinated
Indebtedness.
"Partners" means, collectively, Sprint Enterprises, L.P., TCI
Telephony Services, Inc., Comcast Telephony Service and Cox Telephony
Partnership, to the extent they are Partners in Holdings and any permitted
transferee of such Partner's interest pursuant to the Holdings Partnership
Agreement.
"Paying Agent" has the meaning provided in Section 2.3.
"Permitted Assets" means property or assets that will be used
in a Permitted Business referred to in clause (i) of the definition of
"Permitted Business" (or Equity Interests of any Person that will become a
Restricted Subsidiary as a result of the applicable Asset Sale to the extent
such Person's operations consist of such a Permitted Business).
"Permitted Business" means (i) the delivery or distribution of
telecommunications, voice, data or video services, (ii) any business or activity
reasonably related thereto, including, without limitation, any business
conducted by the Company or any Restricted Subsidiary on the Issue Date and the
acquisition, holding or exploitation of any license relating to the delivery of
the services described in clause (i) of this definition or (iii) any other
business or activity in which the Company and the Restricted Subsidiaries are
expressly contemplated to be engaged pursuant to the provisions of the Holdings
Partnership Agreement as in effect on the Issue Date.
"Permitted Holder" means (i) each of Sprint Corporation,
Tele-Communications, Inc., Comcast Corporation and Cox Communications, Inc. and
the respective successors (by merger, consolidation, transfer or otherwise) to
all or substantially all of the respective businesses and assets of the
foregoing, (ii) any transferee of the assets resulting from a Permitted
Transaction and (iii) each Person controlled by one or more Persons identified
in clause (i) or (ii) of this definition.
"Permitted Investments" means any of the following: (i)
Investments in any Restricted Subsidiary (including any Person that pursuant to
such Investment becomes a Restricted Subsidiary) and any Person that is merged
or consolidated with or into, or transfers or conveys all or substantially all
of its assets to, the Company or any Restricted Subsidiary at the time such
Investment is made; (ii) Investments in Cash Equivalents; (iii) Investments in
Currency Agreements and Interest Rate Protection Obligations permitted by
Section 4.8; (iv) loans or advances to officers or employees of the Company and
the Restricted Subsidiaries in the ordinary course of business for bona fide
business purposes of the Company and the Restricted Subsidiaries (including
travel and moving expenses) not in excess of $5.0 million in the aggregate at
any one time outstanding; (v) Investments in evidences of Indebtedness,
securities or other property received from another Person by the Company or any
of the Restricted Subsidiaries in connection with any bankruptcy proceeding or
by reason of a composition or readjustment of debt or a reorganization of such
Person or as a result of foreclosure, perfection or enforcement of any Lien in
exchange for evidences of Indebtedness, securities or other property of such
Person held by the Company or any of the Restricted Subsidiaries, or for other
liabilities or obligations of such other Person to the Company or any of the
Restricted Subsidiaries that were created in accordance with the terms of this
Indenture; and (vi) Investments made by the Company and the Restricted
Subsidiaries as a result of consideration received in connection with an Asset
Sale made in compliance with Section 4.13.
"Permitted Transaction" with respect to a Partner means a
transaction or series of related transactions in which (i) such Partner ceases
to be a Subsidiary of its Parent or such Partner Transfers its Interest to a
Person that is not a Controlled Affiliate of such Partner and (ii) the new
Parent of such Partner (or such Partner if it is its own Parent) or the Parent
of the transferee of the Interest after giving effect to such transaction, or
the last transaction in a series of related transactions, owns, directly and
indirectly through its Controlled Affiliates, all or a Substantial Portion of
the cable television system assets (in the case of a Cable Partner) or long
distance telecommunications business assets (in the case of Sprint Corporation)
owned by the Parent of such Partner, directly and indirectly through its
Controlled Affiliates, immediately prior to the commencement of such transaction
or series of transactions. As used herein, "Substantial Portion" means (x) in
the case of a Cable Partner, cable television systems serving 75% or more of the
aggregate number of basic subscribers served by cable television systems in the
United States of America (including its territories and possessions other than
Puerto Rico) owned by the Parent of such Cable Partner, directly and indirectly
through its Controlled Affiliates, and (y) in the case of Sprint Corporation,
long distance telecommunications business assets serving 75% or more of the
aggregate number of customers served by the long distance telecommunications
business in the United States of America (including its territories and
possessions other than Puerto Rico) owned by the Parent of Sprint Corporation,
directly and indirectly through its Controlled Affiliates. All capitalized terms
used in this definition and not otherwise defined in this Indenture shall have
the meanings ascribed to them in the Holdings Partnership Agreement.
"Person" means any individual, corporation, partnership,
limited liability company, joint venture, association, joint-stock company,
trust, unincorporated organization or government or any agency or political
subdivision thereof.
"principal" of a debt security (including the Securities)
means the principal amount of the security plus, when appropriate, the premium,
if any, on the security. Such amount shall, if applicable, be calculated by
reference to the last sentence of "Indebtedness" and, with respect to the
Securities, shall mean the Accreted Value, plus any premium, for periods prior
to August 15, 2001.
"Public Equity Offering" means an underwritten public offering
of Common Equity Interests made on a primary basis by the Company, Holdings or a
Special Purpose Corporation pursuant to a registration statement filed with, and
declared effective by, the Commission in accordance with the Securities Act;
provided that Holdings or the Special Purpose Corporation, as the case may be,
shall contribute as equity to, or purchase Common Equity Interests in, the
Company with proceeds from the Initial Public Offering of not less than the
greater of (x) $100.0 million or (y) the amount required to effect any
redemption pursuant to Paragraph 8 of the Securities.
"RealtyCo" means Sprint Spectrum Realty Company, L.P., a
Delaware limited partnership.
"Redemption Date" means, with respect to any Security, the
date on which such Security is to be redeemed by the Company pursuant to the
terms of the Securities.
"Refinancing Indebtedness" means (i) Indebtedness of the
Company to the extent the proceeds thereof are used solely to refinance (whether
by amendment, renewal, extension or refunding) Indebtedness of the Company or
any of the Restricted Subsidiaries and (ii) Indebtedness of any Restricted
Subsidiary to the extent the proceeds thereof are used solely to refinance
(whether by amendment, renewal, extension or refunding) Indebtedness of such
Restricted Subsidiary, in each such event, incurred under the first paragraph of
Section 4.8 or clause (a) of the second paragraph of such Section; provided that
(a) the principal amount of Refinancing Indebtedness incurred pursuant to this
definition (or, if such Refinancing Indebtedness provides for an amount less
than the principal amount thereof to be due and payable upon a declaration of
acceleration of the maturity thereof, the accreted value of such Indebtedness)
shall not exceed the principal amount or accreted value, as the case may be, of
the Indebtedness refinanced, plus the amount of any premium required to be paid
in connection with such refinancing pursuant to the terms of such Indebtedness
or the amount of any premium reasonably determined by the Board of the Company
as necessary to accomplish such refinancing by means of a tender offer or
privately negotiated purchase, plus the amount of reasonable expenses in
connection therewith and (b) in the case of Refinancing Indebtedness incurred by
an Issuer or a Subsidiary Guarantor, such Indebtedness has an Average Life to
Stated Maturity greater than or equal to either (A) the Average Life to Stated
Maturity of the Indebtedness refinanced or (B) the remaining Average Life to
Stated Maturity of the Securities and (iii) if the Indebtedness to be refinanced
is Subordinated Indebtedness of an Issuer or a Subsidiary Guarantor, the
Indebtedness to be incurred pursuant to this definition shall also be
Subordinated Indebtedness of the Issuer or the Subsidiary Guarantor, as
applicable, whose Indebtedness is to be refinanced.
"Registrar" has the meaning provided in Section 2.3.
"Replacement Assets" has the meaning provided in Section 4.13.
"Resolution" means, with respect to any Person, a copy of a
resolution certified by the Secretary or Assistant Secretary of such Person to
have been duly adopted by its Board and to be in full force and effect on the
date of such certification, and delivered to the Trustee.
"Restricted Payment" means any of the following: (i) the
declaration or payment of any dividend or distribution on Equity Interests of
the Company or any Restricted Subsidiary or any payment made to the direct or
indirect holders (in their capacities as such), including any Special Purpose
Corporation, of Equity Interests of the Company or any Restricted Subsidiary
(other than dividends or distributions) (a) payable solely in Equity Interests
(other than Disqualified Equity Interests) of the Company or in options,
warrants or other rights to purchase Equity Interests (other than Disqualified
Equity Interests) of the Company, (b) paid to the Company or a Wholly-Owned
Restricted Subsidiary or (c) paid in respect of Equity Interests of a Restricted
Subsidiary to Persons other than the Company or Wholly-Owned Restricted
Subsidiaries (on not more favorable than a pro rata basis with dividends or
distributions then being paid in respect of Equity Interests held by the Company
or a Wholly-Owned Restricted Subsidiary); (ii) the purchase, redemption or other
acquisition or retirement for value of any Equity Interests of the Company or a
Restricted Subsidiary (other than any such Equity Interests owned by the Company
or a Wholly-Owned Restricted Subsidiary); (iii) the making of any principal
payment on, or the purchase, redemption, defeasance or other acquisition or
retirement for value, prior to any scheduled maturity, scheduled repayment or
scheduled sinking fund payment, of any Subordinated Indebtedness of an Issuer or
any Subsidiary Guarantor (other than any such subordinated Indebtedness owned by
the Company or a Restricted Subsidiary); or (iv) the making of any Investment
(other than a Permitted Investment) in any Person (other than an Investment by a
Restricted Subsidiary in the Company or an Investment by the Company or a
Restricted Subsidiary in either (x) a Restricted Subsidiary or (y) a Person that
becomes a Restricted Subsidiary as a result of such Investment).
"Restricted Subsidiary" means any Subsidiary of the Company
that has not been designated by the Board of the Company, by a Resolution
delivered to the Trustee, as an Unrestricted Subsidiary pursuant to and in
compliance with Section 4.16. Any such Designation may be revoked by a
Resolution of the Company delivered to the Trustee, subject to the provisions of
such Section.
"Revocation" has the meaning provided in Section 4.16.
"S&P" means Standard & Poor's Corporation.
"Securities" means the 12 1/2% Senior Discount Notes Due 2006
issued, authenticated and delivered under this Indenture, as amended or
supplemented from time to time pursuant to the terms of this Indenture.
"Securities Act" means the Securities Act of 1933, as amended.
"Senior Notes" means the 11% Senior Notes due 2006 of the
Issuers.
"Senior Notes Indenture" means the indenture governing the
Senior Notes dated as of August 15, 1996 by and among the Issuers and The Bank
of New York, as Trustee, as amended or supplemented from time to time.
"Special Purpose Corporation" means a corporation formed to
own Common Equity Interests of the Company or Holdings.
"Subordinated Debt Securities" means any Debt Securities (and
any guarantee of any Debt Security) that would constitute Subordinated
Indebtedness.
"Subordinated Indebtedness" of any Person means any
Indebtedness of such Person that is expressly subordinated in right of payment
to any other Indebtedness of such Person.
"Subsidiary" means, with respect to any Person, (i) any
corporation of which the outstanding Equity Interests having at least a majority
of the votes entitled to be cast in the election of directors shall at the time
be owned, directly or indirectly, by such Person, or (ii) any other Person of
which at least a majority in value of Equity Interests or Voting Equity
Interests is at the time, directly or indirectly, owned by such Person.
"Subsidiary Guarantee" has the meaning provided in Section
4.11.
"Subsidiary Guarantor" means a Restricted Subsidiary that
issues a Subsidiary Guarantee pursuant to Section 4.11.
"Surviving Entity" has the meaning provided in Section 5.1.
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code
ss.ss. 77aaa-77bbbb) as in effect on the date of this Indenture.
"Total Consolidated Indebtedness" means, at any date of
determination, an amount equal to the aggregate principal amount of all
Indebtedness of the Company and the Restricted Subsidiaries outstanding as of
the date of determination.
"Total Invested Capital" means, at any time of determination,
the sum of, without duplication, (i) the total amount of equity contributed to
the Company as set forth on the March 31, 1996 consolidated balance sheet of the
Company, plus (ii) the aggregate net cash proceeds received by the Company from
capital contributions or the issuance or sale of Equity Interests (other than
Disqualified Equity Interests but including Equity Interests issued upon the
conversion of convertible Indebtedness or from the exercise of options, warrants
or rights to purchase Equity Interests (other than Disqualified Equity
Interests)) subsequent to the Issue Date, other than to a Restricted Subsidiary,
plus (iii) the aggregate net cash proceeds received by the Company or any
Restricted Subsidiary from the sale, disposition or repayment of any Investment
made after the Issue Date and constituting a Restricted Payment in an amount
equal to the lesser of (a) the return of capital with respect to such Investment
and (b) the initial amount of such Investment, in either case, less the cost of
the disposition of such Investment, plus (iv) an amount equal to the
consolidated net Investment on the date of Revocation made by the Company and/or
any of the Restricted Subsidiaries in any Subsidiary that has been designated as
an Unrestricted Subsidiary after the Issue Date upon its redesignation as a
Restricted Subsidiary in accordance with Section 4.16, plus (v) Total
Consolidated Indebtedness, minus (vi) the aggregate amount of all Restricted
Payments (including any Designation Amount, but other than a Restricted Payment
of the type referred to in clause (iii)(b) of the third paragraph of Section
4.9) declared or made from and after the Issue Date.
"Trust Officer" means an officer or assistant officer of the
Trustee assigned to the corporate trust department (or any successor group) of
the Trustee, or any successor to such department or, in the case of a successor
trustee, an officer or assistant officer assigned to the department, division or
group performing the corporate trust work of such successor.
"Trustee" means the party named as such in this Indenture
until a successor replaces it in accordance with the provisions of this
Indenture and thereafter means such successor.
"Unrestricted Subsidiary" means any Subsidiary of the Company
(other than FinCo, WirelessCo, RealtyCo and EquipmentCo) designated after the
Issue Date as such pursuant to and in compliance with Section 4.16. Any such
designation may be revoked by a Resolution of the Company delivered to the
Trustee, subject to the provisions of such Section 4.16.
"U.S. Government Obligations" has the meaning provided in Sec-
tion 8.2(d).
"U.S. Legal Tender" means such coin or currency of the
United States of America as at the time of payment shall be legal tender for the
payment of public and private debts.
"Vendor Credit Facilities" means, collectively, (i) the Lucent
Credit Facility; (ii) the Nortel Credit Facility; and (iii) any other credit
facility entered into with any vendor or supplier (or any financial institution
acting on behalf of such a vendor or supplier); provided that, in the case of
each of clauses (i), (ii) and (iii), the Indebtedness thereunder is incurred
solely for the purpose of financing the cost (including the cost of design,
development, site acquisition, construction, integration, handset manufacture or
acquisition or microwave relocation) of wireless telecommunications networks or
systems or for which the Company or any Restricted Subsidiary has obtained the
applicable licenses or authorizations to utilize the radio frequencies necessary
for the operation of such systems or networks.
"Voting Equity Interests" means, with respect to any Person,
Equity Interests of any class or kind ordinarily having the power to vote for
the election of directors, managers or other voting members of the governing
body of such Person.
"Wholly-Owned Restricted Subsidiary" means any Restricted
Subsidiary of which 100% of the outstanding Equity Interests is owned by the
Company or another Wholly-Owned Restricted Subsidiary. For purposes of this
definition, (i) any directors' qualifying shares or investments by foreign
nationals mandated by applicable law and (ii) Equity Interests of a Person not
to exceed 1% of the total voting power of all outstanding Equity Interests of
such Person and representing a right to receive not greater than 1% of the
profits of such partnership shall be disregarded in determining the ownership of
a Restricted Subsidiary.
"Wholly-Owned Subsidiary" means, with respect to any Person,
any other Person 100% of whose outstanding Equity Interests are owned by such
Person or another Wholly-Owned Restricted Subsidiary of such Person. For
purposes of this definition, (i) any directors' qualifying shares or investments
by foreign nationals mandated by applicable law and (ii) Equity Interests of a
Person not to exceed 1% of the total voting power of all outstanding Equity
Interests of such Person and representing a right to receive not greater than 1%
of the profits of such partnership shall be disregarded in determining the
ownership of a Subsidiary.
"WirelessCo" means WirelessCo, L.P., a Delaware limited part-
nership.
SECTION I.2 Incorporation by Reference
of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the
provision shall be deemed incorporated by reference in and made a part of this
Indenture. The following TIA terms used in this Indenture have the following
meanings:
(a) "indenture securities" means the Securities;
(b) "indenture security holder" means a Holder or
Securityholder;
(c) "indenture to be qualified" means this Indenture;
(d) "indenture trustee" or "institutional trustee" means
the Trustee; and
(e) "obligor" on the indenture securities means the Company,
FinCo, each Subsidiary Guarantor, if any, or any other obligor on the
Securities.
All other TIA terms used in this Indenture that are defined by
the TIA, defined by TIA reference to another statute or defined by Commission
rule and not otherwise defined herein have the meanings so assigned to them
therein.
SECTION I.3 Rules of Construction.
Unless the context otherwise requires:
(a) a term has the meaning assigned to it;
(b) "or" is not exclusive;
(c) words in the singular include the plural, and words
in the plural include the singular;
(d) "herein," "hereof" and other words of similar im-
port refer to this Indenture as a whole and not to any particular Article,
Section or other Subsection; and
(e) unless otherwise specified herein, all accounting terms
used herein shall be interpreted, all accounting determinations
hereunder shall be made, and all financial statements required to be
delivered hereunder shall be prepared in accordance with GAAP.
ARTICLE II
THE SECURITIES
SECTION II.1 Form and Dating.
The Securities and the Trustee's certificates of
authentication with respect thereto shall be substantially in the form set forth
in Exhibit A, which is annexed hereto and hereby incorporated in and expressly
made a part of this Indenture. The Securities may have notations, legends or
endorsements (including notations relating to any Subsidiary Guarantee) required
by law, rule or usage to which the Issuers or any Subsidiary Guarantor are
subject. Each Security shall be dated the date of its authentication. The terms
and provisions contained in the Securities shall constitute, and are expressly
made, a part of this Indenture.
SECTION II.2 Execution and Authentication.
Two Officers (each of whom shall have been duly authorized by
all requisite partnership or corporate action, as the case may be) shall execute
the Securities on behalf of each of the Issuers by manual or facsimile
signature.
If an Officer whose signature is on a Security no longer holds
that office at the time the Trustee authenticates the Security or at any time
thereafter, the Security shall be valid nevertheless.
A Security shall not be valid until an authorized officer of
the Trustee manually signs the certificate of authentication on the Security.
Such signature shall be conclusive evidence that the Security has been
authenticated under this Indenture.
The Trustee shall authenticate Securities for original issue
in an aggregate principal amount at maturity not to exceed $500,000,000 upon
receipt of the Officers' Certificates of each of the Issuers signed by two
Officers of each of the Issuers directing the Trustee to authenticate the
Securities and certifying that all conditions precedent to the issuance of the
Securities contained herein have been complied with. The aggregate principal
amount at maturity of Securities outstanding at any time may not exceed
$500,000,000, except as provided in Section 2.8.
The Trustee may appoint an authenticating agent acceptable to
the Issuers to authenticate Securities. Unless limited by the terms of such
appointment, an authenticating agent may authenticate Securities whenever the
Trustee may do so. Each reference in this Indenture to authentication by the
Trustee includes authentication by such agent. Such authenticating agent shall
have the same rights as the Trustee in any dealings hereunder with the Issuers
or with any of the Issuers' Affiliates.
The Securities shall be issuable in fully registered form
only, without coupons, in denominations of $1,000 principal amount at maturity
and any integral multiple thereof.
SECTION II.3 Registrar and Paying Agent.
The Issuers shall maintain an office or agency (which shall be
located in the Borough of Manhattan in The City of New York, State of New York)
where (a) Securities may be presented for registration of transfer or for
exchange (the "Registrar"), (b) Securities may be presented for payment (the
"Paying Agent") and (c) notices and demands to or upon the Issuers and any
Subsidiary Guarantor in respect of the Securities, the Subsidiary Guarantees and
this Indenture may be served. The Registrar shall keep a register of the
Securities and of their transfer and exchange. The Issuers may have one or more
co-registrars and one or more additional paying agents. The term "Paying Agent"
includes any additional paying agent. Neither the Issuers nor any Affiliate
thereof may act as Paying Agent.
The Issuers shall enter into an appropriate agency agreement
with any Agent not a party to this Indenture that shall incorporate the
provisions of the TIA. The agreement shall implement the provisions of this
Indenture that relate to such Agent. The Issuers shall notify the Trustee of the
name and address of any such Agent. If the Issuers fail to maintain a Registrar
or Paying Agent, or fail to give the foregoing notice, the Trustee shall act as
such.
The Company initially appoints the Trustee located at the
address set forth in Section 11.2 as Registrar, Paying Agent and agent for
service of notices and demands in connection with the Securities, any Subsidiary
Guarantee and this Indenture.
SECTION II.4 Paying Agent To Hold Money in Trust.
Each Paying Agent shall hold in trust for the benefit of the
Securityholders or the Trustee all money held by the Paying Agent for the
payment of principal of or interest on the Securities (whether such money has
been paid to it by the Issuers or any other obligor on the Securities), and the
Issuers and the Paying Agent shall notify the Trustee of any default by the
Issuers (or any other obligor on the Securities) in making any such payment.
Money held in trust by the Paying Agent need not be segregated except as
required by law and in no event shall the Paying Agent be liable for any
interest on any money received by it hereunder. The Issuers at any time may
require the Paying Agent to pay all money held by it to the Trustee and account
for any funds disbursed and the Trustee may at any time during the continuance
of any Event of Default specified in Section 6.1(a)(i) or (ii), upon written
request to the Paying Agent, require such Paying Agent to pay forthwith all
money so held by it to the Trustee and to account for any funds disbursed. Upon
making such payment, the Paying Agent shall have no further liability for the
money delivered to the Trustee.
SECTION II.5 Securityholder Lists.
The Trustee shall preserve in as current a form as is
reasonably practicable the most recent list available to it of the names and
addresses of the Holders of Securities. If the Trustee is not the Registrar, the
Issuers shall furnish to the Trustee at least five Business Days before each
Interest Payment Date, and at such other times as the Trustee may request in
writing, a list in such form and as of such date as the Trustee may reasonably
require of the names and addresses of the Holders of Securities, if any.
SECTION II.6 Transfer and Exchange.
(a) When Securities are presented to the Registrar or a
co-registrar with a request from the Holder of such Securities to register a
transfer, the Registrar shall register the transfer as requested. Every Security
presented or surrendered for registration of transfer or exchange shall be duly
endorsed or be accompanied by a written instrument of transfer in form
satisfactory to the Issuers and the Registrar, duly executed by the Holder
thereof or his attorneys duly authorized in writing.
At the option of the Holder, Securities may be exchanged for
other Securities of any authorized denomination or denominations, of a like
aggregate principal amount at maturity, upon surrender of the Securities to be
exchanged at the office or agency maintained for such purpose pursuant to
Section 2.3.
To permit registrations of transfers and exchanges, the
Issuers shall issue and execute and the Trustee shall authenticate new
Securities evidencing such transfer or exchange at the Registrar's request.
SECTION II.7 Replacement Securities.
If a mutilated Security is surrendered to the Registrar or the
Trustee or if the Holder of a Security claims that the Security has been lost,
destroyed or wrongfully taken, the Issuers shall issue and the Trustee shall
authenticate a replacement Security. If required by the Trustee or the Issuers,
an indemnity bond shall be posted, sufficient in the judgment of each of the
Issuers and the Trustee to protect the Issuers, the Trustee or any Paying Agent
from any loss that any of them may suffer if such Security is replaced. The
Issuers may charge such Holder for the Issuers' reasonable out-of-pocket
expenses in replacing such Security and the Trustee may charge the Issuers for
the Trustee's expenses in replacing such Security. Every replacement Security
shall constitute an additional obligation of each of the Issuers.
SECTION II.8 Outstanding Securities.
Securities outstanding at any time are all Securities that
have been authenticated by the Trustee except for (a) those cancelled by it, (b)
those delivered to it for cancellation, (c) to the extent set forth in Sections
8.1 and 8.2, on or after the date on which the conditions set forth in Section
8.1 or 8.2 have been satisfied, those Securities theretofore authenticated and
delivered by the Trustee hereunder and (d) those described in this Section 2.8
as not outstanding. Subject to Section 2.9, a Security does not cease to be
outstanding because the Issuers or one of their Affiliates holds the Security.
If a Security is replaced pursuant to Section 2.7, it ceases
to be outstanding unless the Trustee receives an Officer's Certificate stating
that the replaced Security is held by a bona fide purchaser in whose hands such
Security is a legal, valid and binding obligation of each of the Issuers.
If the Paying Agent holds, in its capacity as such, on any
Maturity Date or on any optional redemption date, money sufficient to pay all
accrued interest and principal with respect to such Securities payable on that
date and is not prohibited from paying such money to the Holders thereof
pursuant to the terms of this Indenture, then on and after that date such
Securities cease to be outstanding and interest on them ceases to accrue.
SECTION II.9 Treasury Securities.
In determining whether the Holders of the required principal
amount at maturity of Securities have concurred in any declaration of
acceleration or notice of default or direction, waiver or consent or any
amendment, modification or other change to this Indenture, Securities owned by
the Issuers or an Affiliate of an Issuer shall be disregarded as though they
were not outstanding, except that for the purposes of determining whether the
Trustee shall be protected in relying on any such direction, waiver or consent
or any amendment, modification or other change to this Indenture, only
Securities that the Trustee actually knows are so owned shall be so disregarded.
SECTION II.10 Temporary Securities.
Until definitive Securities are prepared and ready for
delivery, the Issuers may prepare and the Trustee shall authenticate temporary
Securities. Temporary Securities shall be substantially in the form of
definitive Securities but may have variations that the Issuers consider
appropriate for temporary Securities. Without unreasonable delay, the Issuers
shall prepare and the Trustee shall authenticate definitive Securities in
exchange for temporary Securities. Until such exchange, temporary Securities
shall be entitled to the same rights, benefits and privileges as definitive
Securities.
SECTION II.11 Cancellation.
The Issuers at any time may deliver Securities to the Trustee
for cancellation. The Registrar and the Paying Agent shall forward to the
Trustee any Securities surrendered to them for registration of transfer,
exchange or payment or purchase. The Trustee shall cancel all Securities
surrendered for registration of transfer, exchange, payment, replacement or
cancellation or purchase and return such Securities to the Issuers. The Issuers
may not reissue or resell, or issue new Securities to replace, Securities that
the Issuers have redeemed or paid or purchased, or that have been delivered to
the Trustee for cancellation.
SECTION II.12 Defaulted Interest.
If the Issuers default on a payment of interest on the
Securities, they shall pay the defaulted interest, plus (to the extent permitted
by law) any interest payable on the defaulted interest, in accordance with the
terms hereof, to the Persons who are Holders of Securities on a subsequent
special record date, which date shall be at least five Business Days prior to
the payment date. The Issuers shall fix such special record date and payment
date in a manner satisfactory to the Trustee. At least 15 days before such
special record date, the Issuers shall mail to each Holder of Securities a
notice that states the special record date, the payment date and the amount of
defaulted interest, and interest payable on such defaulted interest, if any, to
be paid.
SECTION II.13 CUSIP Number.
The Issuers in issuing the Securities may use a "CUSIP"
number, and if so, such CUSIP number shall be included in notices of redemption
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 Securities and that reliance may be
placed only on the other identification numbers printed on the Securities. The
Issuers will promptly notify the Trustee of any change in the CUSIP number.
SECTION II.14 Deposit of Moneys.
On each Interest Payment Date and Maturity Date and on any
Business Day immediately following any acceleration of the Securities pursuant
to Section 6.2, the Issuers shall have deposited with the Paying Agent in
immediately available funds money sufficient to make cash payments, if any, due
on such Interest Payment Date, Maturity Date or Business Day, as the case may
be, in a timely manner that permits the Trustee to remit payment to the Holders
on such Interest Payment Date, Maturity Date or Business Day, as the case may
be.
ARTICLE III
REDEMPTION
SECTION III.1 Election To Redeem; Notices to Trustee.
If the Issuers elect to redeem Securities pursuant to
Paragraph 7 or 8 of the Securities, they shall notify the Trustee and the Paying
Agent in writing of the Redemption Date and the principal amount at maturity of
Securities to be redeemed.
The Issuers shall give each notice provided for in this
Section 3.1 at least 30 days before the Redemption Date (unless a shorter notice
shall be agreed to by the Trustee in writing), together with an Officers'
Certificate of each of the Issuers stating that such redemption will comply with
the conditions contained herein and in the Securities.
SECTION III.2 Selection of Securities To Be Redeemed.
(a) If the mandatory redemption of Securities pursuant to
Paragraph 6 of the Securities would result in an outstanding Security in a
denomination (i) of less than $1,000 principal amount at maturity or (ii) other
than an integral multiple of $1,000 principal amount at maturity, such Security
will be redeemed (x) in whole, in the case of clause (i), or (y) by an
additional amount so that such Security will be in a denomination of an integral
multiple of $1,000 principal amount at maturity, in the case of clause (ii).
(b) If less than all of the Securities are to be redeemed
pursuant to Paragraph 7 or 8 of the Securities, the Trustee shall select the
Securities to be redeemed in compliance with the requirements of the principal
national securities exchange, if any, on which the Securities are listed or, if
the Securities are not then listed on a national securities exchange, on a pro
rata basis, by lot or by such other method as the Trustee deems fair and
appropriate; provided that any redemption pursuant to Paragraph 8 of the
Securities shall be made on a pro rata basis or on as nearly a pro rata basis as
is practicable (subject to the procedures of The Depository Trust Company) based
on the aggregate principal amount at maturity of Securities held by each Holder.
The Trustee shall make such selection from the Securities outstanding and not
previously called for redemption. The Trustee shall promptly notify the Issuers
in writing of such Securities selected for redemption and, in the case of
Securities selected for partial redemption, the principal amount at maturity to
be redeemed. The Trustee may select for redemption pursuant to Paragraph 7 or 8
of the Securities portions of the principal amount at maturity of Securities
that have denominations equal to or larger than $1,000 principal amount at
maturity. Securities and portions of them the Trustee so selects shall be in
amounts of $1,000 principal amount at maturity or integral multiples thereof.
(c) Provisions of this Indenture that apply to Securities
called for redemption also apply to portions of Securities called for
redemption.
SECTION III.3 Notice of Redemption.
At least 30 days but not more than 60 days before a Redemption
Date, the Issuers shall mail or cause the mailing of a notice of redemption by
first-class mail to each Holder of Securities to be redeemed at such Holder's
registered address. A copy of such notice shall be mailed to the Trustee on the
same day the notice is mailed to Holders of Securities.
The notice shall identify the Securities to be redeemed and
shall state:
(a) the Redemption Date;
(b) the paragraph of the Securities pursuant to which the
Securities are being redeemed;
(c) the redemption price and the amount of accrued in-
terest, if any, to be paid;
(d) the name and address of the Paying Agent;
(e) that Securities called for redemption must be
surrendered to the Paying Agent to collect the redemption price and accrued
interest, if any;
(f) that, unless the Issuers default in making the redemption
payment, Accreted Value and interest on Securities called for
redemption ceases to accrete or accrue, as the case may be, on and
after the Redemption Date and the only remaining right of the Holders
of such Securities is to receive payment of the redemption price upon
surrender to the Paying Agent of the Securities redeemed;
(g) if any Security is to be redeemed in part, the portion of
the principal amount at maturity of such Security to be redeemed and
that, on or after the Redemption Date, upon surrender of such Security,
a new Security or Securities in aggregate principal amount at maturity
equal to the unredeemed portion thereof will be issued without charge
to the Securityholder;
(h) if less than all of the Securities are to be redeemed, the
identification of the particular Securities (or portion thereof) to be
redeemed, as well as the aggregate principal amount at maturity of
Securities to be redeemed and the aggregate principal amount at
maturity of Securities to be outstanding after such partial redemption;
and
(i) the CUSIP number, if any, pursuant to Section 2.13.
At the Issuers' request, the Trustee shall give the notice of
redemption in the Issuers' name and at the Issuers' expense.
SECTION III.4 Effect of Notice of Redemption.
Once notice of redemption is mailed, Securities called for
redemption become due and payable on the Redemption Date and at the redemption
price. Upon surrender to the Paying Agent, such Securities shall be paid at the
redemption price plus accrued interest, if any, to the Redemption Date, but
interest installments whose maturity is on or prior to such Redemption Date will
be payable on the relevant Interest Payment Dates to the Holders that would
otherwise have been entitled thereto pursuant to this Indenture and the
Securities.
SECTION III.5 Deposit of Redemption Price.
At least one Business Day prior to the Redemption Date, the
Issuers shall deposit with the Paying Agent U.S. Legal Tender sufficient to pay
the redemption price of and accrued interest, if any, on all Securities or
portions thereof to be redeemed on that date.
If any Security surrendered for redemption in the manner
provided in the Securities shall not be so paid on the Redemption Date due to
the failure of the Issuers to deposit with the Paying Agent U.S. Legal Tender,
the principal, premium, if any, and accrued and unpaid interest, if any, thereon
shall, until paid or duly provided for, bear interest as provided in Section 4.1
with respect to any payment default.
SECTION III.6 Securities Redeemed in Part.
Upon the surrender to the Paying Agent of a Security that is
redeemed in part, the Issuers shall execute and the Trustee shall authenticate
for the Holder a new Security equal in principal amount at maturity to the
principal amount at maturity of the unredeemed portion of the Security
surrendered.
ARTICLE IV
COVENANTS
SECTION IV.1 Payment of Securities.
The Issuers shall pay the principal of, premium, if any, and
interest on the Securities on the dates and in the manner provided in the
Securities and this Indenture.
An installment of principal, premium or interest shall be
considered paid on the date due if the Trustee or the Paying Agent holds on such
date U.S. Legal Tender designated for and sufficient to pay such installment.
The Issuers shall pay cash interest on overdue principal and
(to the extent permitted by law) on overdue installments of interest at the rate
borne by the Securities. Interest will be computed on the basis of a 360-day
year comprised of twelve 30-day months.
<PAGE>
SECTION IV.2 Maintenance of Office or Agency.
The Issuers shall maintain the office or agency required under
Section 2.3. The Issuers will give prompt written notice to the Trustee of the
location, and any change in the location, of each such office or agency. If at
any time the Issuers shall fail to maintain any such required office or agency
or shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the
address of the Trustee set forth in Section 11.2.
The Issuers may also from time to time designate one or more
other offices or agencies where the Securities may be presented or surrendered
for any or all such purposes and may from time to time rescind such
designations; provided that no such designation or rescission shall in any
manner relieve the Issuers of their obligation to maintain an office or agency
in the Borough of Manhattan, The City of New York, for such purposes. The
Issuers 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 Issuers hereby initially designate the corporate trust
office of the Trustee set forth in Section 11.2 as an agency of the Issuers with
respect to the Securities in accordance with Section 2.3.
SECTION IV.3 Corporate or Partnership Existence.
Subject to Article V, the Issuers shall do or cause to be
done, at their own cost and expense, all things necessary to, and will cause
each Restricted Subsidiary to, preserve and keep in full force and effect the
corporate or partnership existence and rights (charter and statutory), licenses
and/or franchises of each of the Issuers and each Restricted Subsidiary;
provided that none of the Issuers or any Restricted Subsidiaries shall be
required to preserve any such rights, licenses or franchises if such rights,
licenses or franchises will be replaced or if the Board of the Company shall
reasonably determine that the preservation thereof is no longer desirable in the
conduct of the business of the Issuers or such Restricted Subsidiary, as the
case may be, and the loss thereof is not adverse in any material respect to the
Holders; provided, further, that any Restricted Subsidiary may be wound up and
liquidated into an Issuer or any other Restricted Subsidiary.
SECTION IV.4 Payment of Taxes and Other Claims.
The Issuers shall pay or discharge or cause to be paid or
discharged, before the same shall become delinquent, (a) all taxes, assessments
and governmental charges levied or imposed upon their or their Subsidiaries'
income, profits or property and (b) all lawful claims for labor, materials and
supplies that, if unpaid, might by law become a Lien upon the property of an
Issuer or a Restricted Subsidiary; provided that the Issuers shall not be
required to pay or discharge or cause to be paid or discharged any such tax,
assessment, charge or claim whose amount, applicability or validity is being
contested in good faith by appropriate negotiations or proceedings and for which
disputed amounts any reserves required in accordance with GAAP have been made.
SECTION IV.5 Maintenance of Properties;
Insurance; Books and Records; Compliance
with Law.
(a) Each of the Issuers shall, and shall cause each of the
Restricted Subsidiaries to, at all times cause all properties used or useful in
the conduct of its business to be maintained and kept in good condition, repair
and working order (reasonable wear and tear excepted) and supplied with all
necessary equipment, and shall cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereto.
(b) Each of the Issuers shall, and shall cause each of the
Restricted Subsidiaries to, maintain insurance (which may include
self-insurance) in such amounts and covering such risks as are usually and
customarily carried with respect to similar facilities according to their
respective locations.
(c) Each of the Issuers shall, and shall cause each of the
Subsidiaries to, keep proper books of record and account, in which full and
correct entries shall be made of all of its financial transactions and the
assets and business, in accordance with GAAP consistently applied.
(d) Each of the Issuers shall and shall cause each of the
Subsidiaries to comply with all statutes, laws, ordinances, or government rules
and regulations to which it is subject, non-compliance with which would
materially adversely affect the business, earnings, properties, assets or
financial condition of the Issuers and the Restricted Subsidiaries, taken as a
whole.
SECTION IV.6 Compliance Certificates.
(a) Each of the Issuers shall deliver to the Trustee, within
45 days after the end of each of the first three quarters of the Issuers' fiscal
year, and within 90 days after the end of such fiscal year, an Officers'
Certificate stating (i) that a review of the activities of the respective Issuer
during the preceding fiscal quarter or year, as the case may be, has been made
under the supervision of the signing Officers with a view to determining whether
the respective Issuer has kept, observed, performed and fulfilled its
obligations under this Indenture and (ii) that, to the best knowledge of each
Officer signing such certificate, the respective Issuer has kept, observed,
performed and fulfilled each and every covenant and condition contained in this
Indenture and is not in default in the performance or observance of any of the
terms, provisions, conditions and covenants hereof (or, if a Default or Event of
Default shall have occurred, describing all such Defaults or Events of Default
of which such Officers may have knowledge, their status and what action the
defaulting Issuer is taking or proposes to take with respect thereto).
(b) The annual financial statements delivered pursuant to
Section 4.7 shall be accompanied by a written statement of the Company's
independent public accountants that in making the examination necessary for
certification of such annual financial statements nothing as to which such
accountants have professional competence has come to their attention that would
lead them to believe that either of the Issuers has violated any provisions of
this Indenture as to which such accountants have professional competence, 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.
(c) Each of the Issuers shall, so long as any of the
Securities are outstanding, deliver to the Trustee, promptly after any Officer
of either of the Issuers becomes aware of any Default or Event of Default, an
Officers' Certificate specifying such Default or Event of Default and what
action the applicable Issuer is taking or proposes to take with respect thereto.
SECTION IV.7 Reports.
So long as any of the Securities are outstanding, the Company
will file with the Commission the annual reports, quarterly reports and other
documents that the Company would have been required to file with the Commission
pursuant to Sections 13(a) and 15(d) of the Exchange Act whether or not the
Company is then obligated to file reports pursuant to such Sections, and the
Company will promptly provide to all registered Holders of the Securities and
file, within 30 days of filing with the Commission, with the Trustee copies of
such reports and documents.
Delivery of such reports, information and documents to the
Trustee is for informational purposes only and the Trustee's receipt of such
shall not constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Issuers'
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
SECTION IV.8 Limitation on Additional
Indebtedness.
The Company will not, and will not permit any Restricted
Subsidiary to, create, incur, assume, issue, guarantee or in any other manner
become directly or indirectly liable, contingently or otherwise, for or with
respect to (in any such case, to "incur") any Indebtedness (including any
Acquired Indebtedness); provided that the Issuers and the Restricted
Subsidiaries may incur Indebtedness (including Acquired Indebtedness) if after
giving pro forma effect to such incurrence (including the application or use of
the net proceeds therefrom to repay Indebtedness or make any Restricted Payment)
either (a) the ratio of (x) Total Consolidated Indebtedness to (y) Annualized
Pro Forma Consolidated Operating Cash Flow would be less than (A) 7.0 to 1.0, if
the Indebtedness is to be incurred prior to July 1, 2002, or (B) 6.0 to 1.0, if
the Indebtedness is to be incurred on or after July 1, 2002, or (b) in the case
of any incurrence of Indebtedness prior to July 1, 2002 only, Total Consolidated
Indebtedness would be equal to or less than 70% of Total Invested Capital.
Notwithstanding the foregoing, the Issuers and, to the extent
specified, the Restricted Subsidiaries will be permitted to incur each and all
of the following (each of which shall be given independent effect):
(a) Indebtedness under the Securities, any Subsidiary
Guarantee and this Indenture;
(b) Indebtedness of the Issuers and the Restricted Sub-
sidiaries outstanding from time to time pursuant to any of the Vendor Credit
Facilities;
(c) Indebtedness of the Issuers and the Restricted
Subsidiaries outstanding from time to time pursuant to the Bank Credit
Facility in an aggregate principal amount at any one time outstanding
not to exceed $2.0 billion;
(d) Indebtedness of an Issuer or a Restricted Subsidiary owed
to and held by an Issuer or another Restricted Subsidiary so long as
any such Indebtedness owing by an Issuer is unsecured and subordinated
in right of payment to the Securities, except that (x) any direct or
indirect transfer of such Indebtedness by an Issuer or a Restricted
Subsidiary (other than to an Issuer or a Restricted Subsidiary), as the
case may be, or (y) any direct or indirect sale, transfer or other
disposition by an Issuer or a Restricted Subsidiary of Equity Interests
of a Restricted Subsidiary that is owed Indebtedness of an Issuer or a
Restricted Subsidiary such that it ceases to be a Restricted Subsidiary
shall, in each such event, be an incurrence of Indebtedness by the
Issuer or such Restricted Subsidiary, as the case may be, subject to
the other provisions of this Section 4.8;
(e) Interest Rate Protection Obligations of an Issuer or a
Restricted Subsidiary relating to Indebtedness of an Issuer or a
Restricted Subsidiary otherwise permitted under this Indenture that are
entered into for the purpose of protecting against fluctuations in
interest rates in respect of such Indebtedness and not for speculative
purposes;
(f) Indebtedness of an Issuer or a Restricted Subsidiary under
Currency Agreements; provided that (x) such Currency Agreements relate
to Indebtedness otherwise permitted under this Indenture or the
purchase price of goods purchased or sold by an Issuer or a Restricted
Subsidiary in the ordinary course of its business and (y) such Currency
Agreements do not increase the Indebtedness or other obligations of an
Issuer or a Restricted Subsidiary outstanding other than as a result of
fluctuations in foreign currency exchange rates or by reason of fees,
indemnities and compensation payable thereunder;
(g) Indebtedness of an Issuer or a Restricted Subsidiary
represented by letters of credit for the account of an Issuer or a
Restricted Subsidiary in order to provide security for workers'
compensation claims, payment obligations in connection with
self-insurance or similar requirements in the ordinary course of
business;
(h) other Indebtedness of the Issuers and the Re-
stricted Subsidiaries in an aggregate principal amount not to exceed $100
million at any one time outstanding; and
(i) Refinancing Indebtedness.
Indebtedness of a Person existing at the time such Person
becomes a Restricted Subsidiary or which is secured by a Lien on an asset
acquired by the Company or a Restricted Subsidiary (whether or not such
Indebtedness is assumed by the acquiring Person) shall be deemed incurred at the
time the Person becomes a Restricted Subsidiary or at the time of the asset
acquisition, as the case may be.
SECTION IV.9 Limitation on Restricted Payments.
The Company will not, and will not permit any of the
Restricted Subsidiaries to, make, directly or indirectly, any Restricted Payment
on or prior to December 31, 1999; and, thereafter, will not, and will not permit
any of the Restricted Subsidiaries to, make, directly or indirectly, any
Restricted Payments unless:
(i) no Default shall have occurred and be continuing at
the time of or after giving effect to such Restricted Payment;
(ii) immediately after giving effect to such Restricted
Payment, the Company would be able to incur $1.00 of additional
Indebtedness under clause (a) of the proviso to the first paragraph of
Section 4.8; and
(iii) immediately after giving effect to such Restricted
Payment, the aggregate amount of all Restricted Payments declared or
made on or after the Issue Date (including any Designation Amount)
would not exceed an amount equal to the sum of, without duplication,
(1) the amount of (x) the Available Operating Cash Flow of the Company
after December 31, 1999 through the end of the latest full fiscal
quarter for which consolidated financial statements of the Company are
available preceding the date of such Restricted Payment (treated as a
single accounting period) less (y) 150% of the cumulative Consolidated
Interest Expense of the Company after December 31, 1999 through the end
of the latest full fiscal quarter for which consolidated financial
statements of the Company are available preceding the date of such
Restricted Payment (treated as a single accounting period), plus (2)
the aggregate net cash proceeds (other than Excluded Cash Proceeds)
received by the Company as a capital contribution in respect of
existing Equity Interests (other than Disqualified Equity Interests) of
the Company made after the Issue Date or from the issue or sale (other
than to a Restricted Subsidiary) by the Company of its Equity Interests
(other than Disqualified Equity Interests) made after the Issue Date,
plus (3) the aggregate net cash proceeds received by the Company or any
Restricted Subsidiary from the sale, disposition or repayment (other
than to the Company or a Restricted Subsidiary) of any Investment
(other than an Investment made pursuant to clause (vi) of the following
paragraph) made after the Issue Date and constituting a Restricted
Payment in an amount equal to the lesser of (x) the return of capital
with respect to such Investment and (y) the initial amount of such
Investment, in either case, less the cost of disposition of such
Investment, plus (4) an amount equal to the consolidated net Investment
on the date of Revocation made by the Company and/or any of the
Restricted Subsidiaries in any Subsidiary that has been designated as
an Unrestricted Subsidiary after the Issue Date upon its redesignation
as a Restricted Subsidiary in accordance with Section 4.16. For
purposes of the preceding clause (2), the value of the aggregate net
cash proceeds received by the Company upon the issuance of Equity
Interests either upon the conversion of convertible Indebtedness or in
exchange for outstanding Indebtedness or upon the exercise of options,
warrants or rights will be the net cash proceeds received upon the
issuance of such Indebtedness, options, warrants or rights plus the
incremental amount received by the Company upon the conversion,
exchange or exercise thereof.
For purposes of determining the amount expended for Restricted
Payments, cash distributed shall be valued at the face amount thereof and
property other than cash shall be valued at its Fair Market Value.
The provisions of this Section 4.9 shall not prohibit (i) the
payment of any dividend or distribution within 60 days after the date of
declaration thereof, if at such date of declaration such payment would comply
with the provisions of this Indenture; (ii) so long as no Default shall have
occurred and be continuing, the purchase, redemption, retirement or other
acquisition of any Equity Interests of the Company out of the net cash proceeds
of the substantially concurrent capital contribution in respect of existing
Equity Interests (other than Disqualified Equity Interests) of the Company or
from the issue or sale (other than to a Restricted Subsidiary) of Equity
Interests (other than Disqualified Equity Interests) of the Company; provided
that any such net cash proceeds are excluded from clause (iii)(2) of the second
preceding paragraph; (iii) so long as no Default shall have occurred and be
continuing, the purchase, redemption, retirement, defeasance or other
acquisition of Subordinated Indebtedness of an Issuer made by exchange for or
conversion into, or out of the net cash proceeds of, a concurrent issue and sale
(other than to a Restricted Subsidiary) of (a) Equity Interests (other than
Disqualified Equity Interests) of the Company (provided that any such net cash
proceeds are excluded from clause (iii)(2) of the second preceding paragraph) or
(b) other Subordinated Indebtedness of an Issuer that has an Average Life to
Stated Maturity equal to or greater than the Average Life to Stated Maturity of
the Subordinated Indebtedness being purchased, redeemed, retired, defeased or
otherwise acquired; (iv) so long as no Default shall have occurred and be
continuing, the making of a direct or indirect Investment constituting a
Restricted Payment out of the proceeds of a concurrent capital contribution in
respect of existing Equity Interests (other than Disqualified Equity Interests)
of the Company or from the issue or sale (other than to a Restricted Subsidiary)
of Equity Interests (other than Disqualified Equity Interests) of the Company;
provided that any such net cash proceeds are excluded from clause (iii)(2) of
the second preceding paragraph; (v) so long as no Default shall have occurred or
be continuing and provided the Company is then a partnership for federal income
tax purposes, distributions in respect of, and repurchases of, Equity Interests
of the Company owned by the Partners, to the extent necessary to pay current tax
liabilities payable in respect of income of the Company in an amount not to
exceed in any calendar year the product of (a) the ordinary income from trade or
business activities and giving effect to other items of income, loss and
deduction reported by the Company for the most recently ended tax year for
federal income tax purposes multiplied by (b) a percentage equal to the sum of
(x) the highest applicable federal corporate income tax rate for such tax year
(expressed as a percentage) plus (y) 5% multiplied by the excess of 100% over
the highest applicable federal corporate income tax rate for such tax year
(expressed as a percentage); provided that nothing in this clause (v) shall be
redeemed to permit any such distribution or repurchase to pay any tax
liabilities of the Company's partners resulting from the conversion of the
Company from partnership to corporate form; (vi) so long as no Default shall
have occurred and be continuing, any direct or indirect Investment constituting
a Restricted Payment by the Company or any Restricted Subsidiary in any Person
(including any Unrestricted Subsidiary) whose operations consist principally of,
or has been formed principally to operate, a Permitted Business in an amount not
to exceed $100 million in the aggregate at any time outstanding; or (vii) any
transfer of any Investment in APC held by the Company or any Restricted
Subsidiary to Holdings or any Wholly-Owned Subsidiary of Holdings; provided APC
has not been made a Restricted Subsidiary under Section 4.16.
Restricted Payments made pursuant to clause (i) of the
immediately preceding paragraph shall be included in making the determination of
available amounts under clause (iii) of the third preceding paragraph and
Restricted Payments made pursuant to clauses (ii), (iii), (iv), (v) and (vii) of
the immediately preceding paragraph shall not be included in making the
determination of available amounts under clause (iii) of the third preceding
paragraph.
SECTION IV.10 Limitation on Liens Securing
Certain Indebtedness.
The Company will not, and will not permit any Restricted
Subsidiary to, create, incur, assume or suffer to exist any Liens upon any
property or assets of the Company or any Restricted Subsidiary securing either
(i) Subordinated Debt Securities unless the Securities and the Subsidiary
Guarantees, as applicable, are secured by a Lien on such property or assets that
is senior in priority to the Liens securing such Subordinated Debt Securities or
(ii) Pari Passu Debt Securities unless the Securities and the Subsidiary
Guarantees, as applicable, are equally and ratably secured with the Liens
securing such Pari Passu Debt Securities.
SECTION IV.11 Limitation on Issuance of Certain
Guarantees by, and Debt Securities
of, Restricted Subsidiaries.
The Company will not permit (i) any Restricted Subsidiary to,
directly or indirectly, guarantee any Debt Securities of any of the Issuers or
(ii) any Restricted Subsidiary to issue any Debt Securities, unless, in either
such case, such Restricted Subsidiary simultaneously executes and delivers a
guarantee (a "Subsidiary Guarantee") of the Securities in accordance with
Article X. Any such Subsidiary Guarantee shall not be subordinate in right of
payment to any Indebtedness of the Restricted Subsidiary providing the
Subsidiary Guarantee.
SECTION IV.12 Limitation on Dividends and Other
Payment Restrictions Affecting
Restricted Subsidiaries.
The Company will not, and will not permit any Restricted
Subsidiary to, directly or indirectly, create or otherwise enter into or cause
to become effective any consensual encumbrance or restriction of any kind on the
ability of any Restricted Subsidiary to (i) pay dividends, in cash or otherwise,
or make any distributions on its Equity Interests or any other interest or
participation in, or measured by, its profits owned by the Company or any
Restricted Subsidiary, (ii) pay any Indebtedness owed to the Company or a
Restricted Subsidiary, (iii) make any Investment in the Company or any
Restricted Subsidiary or (iv) transfer any of its property or assets to the
Company or any Restricted Subsidiary, except for (a) any such customary
encumbrance or restriction contained in a security document creating a Lien
permitted under this Indenture to the extent relating to the property or asset
subject to such Lien (including, without limitation, customary restrictions
relating to assets securing any indebtedness under any of the Vendor Credit
Facilities or the Bank Credit Facility under the applicable security documents),
(b) any such encumbrance or restriction with respect to a Restricted Subsidiary
that is not a Restricted Subsidiary on the Issue Date, which encumbrance or
restriction is in existence at the time such Person becomes a Restricted
Subsidiary but not created in contemplation thereof and which encumbrance or
restriction pertains only to that Restricted Subsidiary and (c) any such
encumbrance or restriction imposed pursuant to an agreement that has been
entered into for the sale or disposition of all or substantially all of the
Equity Interests or assets of such Restricted Subsidiary.
SECTION IV.13 Disposition of Proceeds of
Asset Sales.
The Company will not, and will not permit any Restricted
Subsidiary to, make any Asset Sale unless (i) the Company or such Restricted
Subsidiary, as the case may be, receives consideration at the time of such Asset
Sale at least equal to the Fair Market Value of the assets sold or otherwise
disposed of and (ii) at least 80% of such consideration consists of cash or Cash
Equivalents; provided that the amount of any liabilities of the Company or such
Restricted Subsidiary that are assumed (and from which the Company or such
Restricted Subsidiary is unconditionally released) in connection with such Asset
Sale by the transferee or purchaser of such assets or on behalf of such
transferee or purchaser by a third party shall be deemed to be cash for purposes
of this clause (ii); provided, further, that up to $25.0 million of
consideration in the aggregate that is not in the form of cash or Cash
Equivalents may be received in excess of the amount permitted by the foregoing
provisions during the term of the Securities. The Company or the applicable
Restricted Subsidiary, as the case may be, may (i) apply such Net Cash Proceeds
within 365 days of receipt thereof to repay an amount of Indebtedness (other
than Subordinated Indebtedness) of an Issuer or any Subsidiary Guarantor of the
Company or any Subsidiary Guarantor in an amount not exceeding the Other Senior
Debt Pro Rata Share of Excess Proceeds and elect to permanently reduce the
amount of the commitments thereunder by the amount of the Indebtedness so
repaid, (ii) apply such Net Cash Proceeds within 365 days of the receipt thereof
to repay Indebtedness (other than Subordinated Indebtedness) of any Restricted
Subsidiary (other than a Subsidiary Guarantor) and elect to permanently reduce
the amount of the commitments thereunder by the amount of the Indebtedness so
repaid or (iii) apply such Net Cash Proceeds within 365 days of receipt thereof
to an investment in properties and assets that will be used in a Permitted
Business (or in Equity Interests of any Person that will become a Restricted
Subsidiary as a result of such investment to the extent such Person's operations
consist of Permitted Businesses) of the Company or any Restricted Subsidiary
("Replacement Assets"). Net Cash Proceeds from any Asset Sale that are neither
used as set forth in clause (ii) of the preceding sentence nor invested in
Replacement Assets within such 365-day period shall constitute "Excess
Proceeds." Any Excess Proceeds not used as set forth in clause (i) of the second
preceding sentence within such 365-day period shall constitute "Offer Excess
Proceeds" subject to disposition as set forth below.
When the aggregate amount of Offer Excess Proceeds equals or
exceeds $20.0 million, the Issuers shall make an offer to purchase Securities
(an "Asset Sale Offer"), on a Business Day not more than 60 days after the day
the amount of Offer Excess Proceeds equals or exceeds $20.0 million (an "Asset
Sale Payment Date") from all holders of Securities, at a price in cash equal to
(a) 100% of the Accreted Value on the applicable Asset Sale Payment Date, if
such Asset Sale Payment Date is on or before August 15, 2001, and (b) 100% of
the principal amount at maturity of the Securities, plus accrued and unpaid
interest, if any, thereon to the applicable Asset Sale Payment Date, if such
Asset Sale Payment Date is after August 15, 2001. Each Asset Sale Offer shall
remain open for a period of 20 Business Days or such longer period as may be
required by law. To the extent that the aggregate purchase price for the
Securities tendered pursuant to an Asset Sale Offer is less than the Offer
Excess Proceeds available for such offer, the Company and the Restricted
Subsidiaries may use such deficiency for general partnership or corporate
purposes, as the case may be, including to repay other Indebtedness. It is
agreed that, notwithstanding anything herein to the contrary, if holders of
other Debt Securities (including the Senior Notes, but other than Subordinated
Indebtedness) of the Issuers or any Subsidiary Guarantor are entitled to have a
similar offer to purchase their Debt Securities made to them, such other offer
shall be conducted and consummated simultaneously with the Asset Sale Offer for
the Securities. If the aggregate Accreted Value and/or principal amount of the
Securities and other Debt Securities (including the Senior Notes, but other than
Subordinated Indebtedness) validly tendered pursuant to an Asset Sale Offer or
contractually required offer to purchase under this Indenture, the Senior Note
Indenture or any instrument or agreement governing Debt Securities (other than
Subordinated Indebtedness) exceeds the Offer Excess Proceeds, the Securities to
be purchased will be selected on a pro rata basis among the holders of
Securities, Senior Notes and such Debt Securities (based upon the Accreted Value
of the Securities, the principal amount of the Senior Notes and/or the principal
amount or accreted value, as the case may be, of such Debt Securities tendered
by each holder thereof). Upon completion of such Asset Sale Offer, the amount of
Excess Proceeds shall be reset to zero.
Notwithstanding the two immediately preceding paragraphs, the
Company and the Restricted Subsidiaries shall be permitted to consummate an
Asset Sale without complying with such paragraphs to the extent (i) at least 80%
of the consideration for such Asset Sale consists of cash, Cash Equivalents
and/or Permitted Assets and (ii) such consideration at the time of such Asset
Sale is at least equal to the Fair Market Value of the assets sold or otherwise
disposed of; provided that (x) any Net Cash Proceeds received by the Company or
any of the Restricted Subsidiaries in connection with any such Asset Sale shall
be subject to the provisions of the two immediately preceding paragraphs and (y)
if any of the assets disposed of are assets otherwise required to be held by
WirelessCo, RealtyCo or EquipmentCo under Section 4.18, the Permitted Assets
received shall be held by, or promptly transferred to, WirelessCo, RealtyCo or
EquipmentCo.
Not less than 30 nor more than 60 days before the Asset Sale
Payment Date, the Issuers shall send, by first class mail, a notice to every
Holder of Securities, with a copy to the Trustee and Paying Agent. The notice,
which shall govern the terms of the Asset Sale Offer, shall include such
disclosures as are required by law and shall state:
(1) that the Asset Sale Offer is being made pursuant to
this Section 4.13;
(2) the purchase price to be paid for Securities purchased
pursuant to the Asset Sale Offer (including the amount of accrued
interest, if any) and the Asset Sale Payment Date;
(3) that any Security not tendered will continue to
accrete Accreted Value and accrue interest, as the case may be;
(4) that, unless the Company defaults in making payment
therefor, any Security accepted for payment pursuant to the Asset Sale
Offer shall cease to accrete Accreted Value and accrue interest, as the
case may be, after the Asset Sale Payment Date;
(5) that Holders electing to have a Security purchased
pursuant to the Asset Sale Offer will be required to surrender the
Security, with the form entitled "Option of Holder to Elect Purchase"
on the reverse of the Security completed, to the Paying Agent at the
address specified in the notice prior to the close of business on the
Asset Sale Payment Date;
(6) that Holders will be entitled to withdraw their election
if the Paying Agent receives, not later than the second Business Day
prior to the Asset Sale Payment Date, a facsimile transmission or
letter setting forth the name of the Holder, the principal amount at
maturity of the Security the Holder delivered for purchase and a
statement that such Holder is withdrawing his election to have such
Security purchased; and
(7) that Holders whose Securities are purchased only in part
will be issued new Securities in a principal amount at maturity equal
to the unpurchased portion of the Securities surrendered.
On or before the Asset Sale Payment Date, the Company shall
(i) accept for payment Securities or portions thereof tendered pursuant to the
Asset Sale Offer in accordance with this Section 4.13, (ii) deposit with the
Paying Agent U.S. Legal Tender sufficient to pay the purchase price, plus
accrued interest, if any, of all Securities to be purchased in accordance with
this Section 4.13 and (iii) deliver to the Trustee Securities so accepted
together with an Officers' Certificate stating the Securities or portions
thereof being purchased by the Company. The Paying Agent shall promptly mail to
the Holders of Securities so accepted payment in an amount equal to the purchase
price, plus accrued interest, if any, thereon. For purposes of this Section
4.13, the Trustee shall act as the Paying Agent.
If the Company is required to make an Asset Sale Offer, the
Company will comply with all applicable tender offer laws and regulations,
including, to the extent applicable, Section 14(e) and Rule 14e-1 under the
Exchange Act, and any other applicable Federal or state securities laws and
regulations and any applicable requirements of any securities exchange on which
the Securities are listed.
SECTION IV.14 Limitation on Transactions with
Equityholders and Affiliates.
The Company will not, and will not permit, cause, or suffer
any Restricted Subsidiary to, conduct any business or enter into, renew or
extend any transaction or series of related transactions (including, without
limitation, the purchase, sale, lease or exchange of property or assets, or the
rendering of any service) with or for the benefit of any of their respective
Affiliates or any beneficial holder of 5% or more of any class of Equity
Interests of the Company (each an "Affiliate Transaction"), except on terms that
are no less favorable to the Company or such Restricted Subsidiary than those
that could reasonably be obtained in a comparable arm's-length transaction with
a Person that is not such a holder or Affiliate. Each Affiliate Transaction
involving aggregate payments or other Fair Market Value in excess of $15.0
million shall be approved by (i) if the Company is a Wholly-Owned Subsidiary of
Holdings, either (a) if the current provisions of Section 8.6 ("Interested Party
Transactions") of the Holdings Partnership Agreement are in effect, members of
the Board of Holdings exercising votes representing at least a majority (or such
other percentage vote as required by the Holdings Partnership Agreement) of
votes entitled to be exercised by members of such Board selected by the Partners
not having any financial interest in any such Affiliate Transaction, or (b) if
the current provisions of Section 8.6 ("Interested Party Transactions") of the
Holdings Partnership Agreement are not in effect, a majority of the
Disinterested Directors of Holdings, in each case, as evidenced by a Resolution
of the Board of Holdings and (ii) if the Company is not a Wholly-Owned
Subsidiary of Holdings, a majority of the Disinterested Directors of the Company
as evidenced by a Resolution of the Company. In the event the Company obtains a
written opinion from an Independent Financial Advisor stating that the terms of
an Affiliate Transaction are fair to the Company or a Restricted Subsidiary, as
the case may be, from a financial point of view, it shall conclusively meet the
requirements of the first sentence of this paragraph and there shall be no need
to comply with the second sentence of this paragraph.
Notwithstanding the foregoing, the restrictions set forth in
this Section 4.14 shall not apply to (i) transactions between or among the
Company and/or any of the Restricted Subsidiaries, (ii) any dividend or
distribution permitted by Section 4.9, (iii) directors' fees, indemnification
and similar arrangements, officers' indemnification, employee stock option or
employee benefit plans and employee salaries and bonuses paid or created in the
ordinary course of business, (iv) any Affiliate Transaction pursuant to any
agreement in effect on the Issue Date, as the same shall be amended from time to
time; provided that any material amendment shall be required to comply with the
provisions of the preceding paragraph of this Section 4.14, (v) transactions
involving the marketing of products and services of the Company or any
Restricted Subsidiary jointly with products and services of an Affiliate of the
Company or a beneficial holder of 5% or more of any class of Equity Interests of
the Company (such holder or Affiliate bring a "Related Party"); provided all
payments made by the Company or any Restricted Subsidiary to the Related Party
are made to reimburse the Related Party for its share of any expenses incurred
by the Related Party on behalf of the Company or any Restricted Subsidiary, (vi)
transactions involving the leasing or sharing or other use by the Company or any
Restricted Subsidiary of communications network facilities (including, without
limitation, cable or fiber lines, equipment or transmission capacity) of a
Related Party on terms that are no less favorable (when taken as a whole) to the
Company or such Restricted Subsidiary, as applicable, than those available from
such Related Party to unaffiliated third parties, (vii) transactions involving
the provision of telecommunication services by a Related Party in the ordinary
course of its business to the Company or any Restricted Subsidiary, or by the
Company or any Restricted Subsidiary to a Related Party, on terms that are no
less favorable (when taken as a whole) to the Company or such Restricted
Subsidiary, as applicable, than those available from such Related Party to
unaffiliated third parties, and (viii) any sales agency agreements pursuant to
which a Partner or any of its Affiliates has the right to market any or all of
the products or services of the Company or any of the Restricted Subsidiaries on
a "most favored nation" basis (without regard to volume), as contemplated by the
Holdings Partnership Agreement as in effect on the Issue Date.
SECTION IV.15 Change of Control.
(a) Upon the occurrence of a Change of Control (the date of
such occurrence being the "Change of Control Date"), the Issuers shall notify
the holders of the Securities, in the manner prescribed by this Indenture, of
such occurrence and shall make an offer to purchase (a "Change of Control
Offer"), on a Business Day (the "Change of Control Payment Date") not later than
60 days following the Change of Control Date, all Securities then outstanding at
a purchase price equal to (i) 101% of the Accreted Value on the Change of
Control Payment Date of the Securities, if the Change of Control Payment Date is
on or before August 15, 2001, and (ii) 101% of the principal amount at maturity
of the Securities, plus accrued and unpaid interest, if any, thereon to the
Change of Control Payment Date, if such date is after August 15, 2001. The
Change of Control Offer shall remain open for at least 20 Business Days or such
longer period as may be required by law and until the close of business on the
Change of Control Payment Date. The Issuers' obligations under this Section 4.15
may be satisfied if a third party makes the Change of Control Offer in the
manner, at the times and otherwise in compliance with the requirements
applicable to a Change of Control Offer made by the Issuers and purchases all
Securities validly tendered and not withdrawn under such Change of Control
Offer.
(b) Not less than 30 days nor more than 60 days before the
Change of Control Payment Date, the Issuers shall send, by first class mail, a
notice to each Holder of Securities, with a copy to the Trustee and the Paying
Agent. The notice, which shall govern the terms of the Change of Control Offer,
shall include such disclosures as are required by law and shall state:
(i) that a Change of Control Offer is being made pursuant to
this Section 4.15 and that all Securities tendered will be accepted for
payment;
(ii) the purchase price (including the amount of accrued
interest, if any) for each Security and the Change of Control Payment
Date;
(iii) that any Security not tendered for payment will continue
to accrete Accreted Value and accrue interest, as the case may be, in
accordance with the terms thereof;
(iv) that, unless the Issuers default on making the payment,
any Security or portion thereof accepted for payment pursuant to the
Change of Control Offer shall cease to accrete Accreted Value and
accrue interest, as the case may be, after the Change of Control
Payment Date;
(v) that Holders electing to have Securities or any portion
thereof purchased pursuant to a Change of Control Offer will be
required to surrender their Securities to the Paying Agent at the
address specified in the notice prior to 5:00 p.m., New York City time,
on the Business Day preceding the Change of Control Payment Date with
the "Option of Holder to Elect Purchase" on the reverse thereof
completed and must complete any form of letter of transmittal proposed
by the Issuers and acceptable to the Trustee and the Paying Agent;
(vi) that Holders of Securities will be entitled to withdraw
their election if the Paying Agent receives, not later than 5:00 p.m.,
New York City time, on the Business Day preceding the Change of Control
Payment Date, a tested telex, facsimile transmission or letter setting
forth the name of the Holder, the principal amount at maturity of
Securities the Holder delivered for purchase and a statement that such
Holder is withdrawing his election to have such Securities purchased;
and
(vii) that Holders whose Securities are purchased only in part
will be issued Securities equal in principal amount at maturity to the
unpurchased portion of the Securities surrendered.
On the Change of Control Payment Date, the Issuers shall (i)
accept for payment Securities or portions thereof tendered pursuant to the
Change of Control Offer, (ii) deposit with the Paying Agent U.S. Legal Tender
sufficient to pay the purchase price of all Securities or portions thereof so
tendered and accepted and (iii) deliver to the Trustee the Securities so
accepted together with an Officers' Certificate of each of the Issuers setting
forth the Securities or portions thereof tendered to and accepted for payment by
the Issuers. The Paying Agent shall promptly (but in any case no later than 10
calendar days after the Change of Control Payment Date) mail or deliver to the
Holders of Securities so accepted payment in an amount equal to the purchase
price, and the Trustee shall promptly authenticate and mail or deliver to such
Holders a new Security equal in principal amount at maturity to any unpurchased
portion of the Security surrendered. Any Securities not so accepted shall be
promptly mailed or delivered by the Issuers to the Holder thereof.
For purposes of this Section 4.15, the Trustee shall act as
Paying Agent.
In connection with the purchase of Securities pursuant to a
Change of Control Offer, the Issuers shall comply with all applicable tender
offer laws and regulations, including, to the extent applicable, Section 14(e)
and Rule 14(e)-1 under the Exchange Act, and any other applicable Federal or
state securities laws and regulations and any applicable requirements of any
securities exchange on which the Securities are listed.
SECTION IV.16 Limitation on Designations of
Unrestricted Subsidiaries.
The Company may designate any Subsidiary of the Company (other
than FinCo, WirelessCo, RealtyCo and EquipmentCo) as an "Unrestricted
Subsidiary" under this Indenture (a "Designation") only if:
(i) no Default shall have occurred and be continuing at
the time of or after giving effect to such Designation; and
(ii) the Company would be permitted under this Indenture to
make an Investment at the time of Designation (assuming the
effectiveness of such Designation) in an amount (the "Designation
Amount") equal to the Fair Market Value of the aggregate amount of its
Investments in such Subsidiary on such date; and
(iii) except in the case of a Subsidiary in which an
Investment is being made pursuant to and as permitted by the third
paragraph of Section 4.9, the Company would be permitted to incur $1.00
of additional Indebtedness pursuant to clause (a) of the proviso to the
first paragraph of Section 4.8 at the time of Designation (assuming the
effectiveness of such Designation).
In the event of any such Designation, the Company shall be
deemed to have made an Investment constituting a Restricted Payment pursuant to
Section 4.9 for all purposes of this Indenture in the Designation Amount. The
Company shall not, and shall not permit any Restricted Subsidiary to, at any
time (x) provide direct or indirect credit support for or a guarantee of any
Indebtedness of any Unrestricted Subsidiary (including of any undertaking,
agreement or instrument evidencing such Indebtedness), (y) be directly or
indirectly liable for any Indebtedness of any Unrestricted Subsidiary or (z) be
directly or indirectly liable for any Indebtedness which provides that the
Holder thereof may (upon notice, lapse of time or both) declare a default
thereon or cause the payment thereof to be accelerated or payable prior to its
final scheduled maturity upon the occurrence of a default with respect to any
Indebtedness of any Unrestricted Subsidiary (including any right to take
enforcement action against such Unrestricted Subsidiary), except, in the case of
clause (x) or (y), to the extent permitted under Section 4.9.
Notwithstanding anything herein to the contrary, APC shall
not, at any time, be considered a Restricted Subsidiary absent a Revocation in
compliance with the following paragraph.
The Company may revoke any Designation of a Subsidiary as an
Unrestricted Subsidiary (a "Revocation"), whereupon such Subsidiary shall then
constitute a Restricted Subsidiary, if:
(a) no Default shall have occurred and be continu-
ing at the time of and after giving effect to such Revocation; and
(b) all Liens and Indebtedness of such Unrestricted Subsidiary
outstanding immediately following such Revocation would, if incurred at
such time, have been permitted to be incurred for all purposes of this
Indenture.
All Designations and Revocations must be evidenced by
Resolutions of the Company delivered to the Trustee certifying compliance with
the foregoing provisions.
SECTION IV.17 Limitation on Activities of
the Issuers and the Restricted
Subsidiaries.
(i) The Company will not, and will not permit any Restricted
Subsidiary to, engage in any business other than a Permitted Business and (ii)
FinCo will not own any operating assets or other properties or conduct any
business other than to serve as an Issuer and obligor on the Securities and
other Indebtedness permitted under this Indenture.
SECTION IV.18 Limitation on Ownership of Equity
Interests of Restricted Subsidiaries.
Notwithstanding any other provision of this Indenture to the
contrary, (i) each of WirelessCo, RealtyCo, EquipmentCo and FinCo shall at all
times remain a direct Wholly-Owned Restricted Subsidiary of the Company (except
that FinCo may be merged with and into the Company or a Wholly-Owned Restricted
Subsidiary if the Company or such Wholly-Owned Restricted Subsidiary is then a
corporation) and (ii) none of WirelessCo, RealtyCo or EquipmentCo will, directly
or indirectly, sell, convey, transfer, lease or otherwise dispose of any assets
or property used or useful in the operation of the business of the Company and
the Restricted Subsidiaries in the geographic areas for which the Company or a
Restricted Subsidiary owns or holds an FCC license for the transmission of
wireless telecommunications services on the Issue Date other than, in the case
of this clause (ii), to a Person not an Affiliate of the Company or any of the
Restricted Subsidiaries or to a Wholly-Owned Subsidiary if all of the
outstanding Equity Interests of such Wholly-Owned Subsidiary are concurrently
sold to a Person that is not an Affiliate of the Company or any of the
Restricted Subsidiaries, in each case in compliance with Section 4.13.
Notwithstanding the foregoing, WirelessCo, RealtyCo, EquipmentCo and FinCo may
issue Disqualified Equity Interests that do not entitle the Holders thereof to
participate in the earnings, profits or cash flow of such Restricted Subsidiary
pursuant to and in compliance with Section 4.8.
SECTION IV.19 Amendments to Capital
Contribution Agreement
The Company will not amend, modify or waive, or refrain from
enforcing, any provision of the Capital Contribution Agreement dated as of July
15, 1996 among Sprint Corporation, Tele-Communications, Inc., Comcast
Corporation, Cox Communications, Inc. and the Company in any manner adverse to
the Company or the holders of the Securities in any material respect.
SECTION IV.20 Waiver of Stay, Extension
or Usury Laws.
Each of the Issuers covenants, and each Subsidiary Guarantor
shall be deemed to covenant, (to the extent permitted by law) 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 or extension law or any usury law or other law
that would prohibit or forgive the Issuers or such Subsidiary Guarantor, as the
case may be, from paying all or any portion of the principal of or interest on
the Securities as contemplated herein, wherever enacted, now or at any time
hereafter in force, or that may affect the covenants or the performance of this
Indenture; and (to the extent permitted by law) each of the Issuers hereby
expressly waives and each Subsidiary Guarantor shall be deemed to expressly
waive, all benefit or advantage of any such law, and covenants, and each
Subsidiary Guarantor shall be deemed to covenant, that it will not hinder, delay
or impede the execution of any power herein granted to the Trustee, but will
suffer and permit the execution of every such power as though no such law had
been enacted.
ARTICLE V
SUCCESSOR CORPORATION
SECTION V.1 Consolidation, Merger, Sale
of Assets, Etc.
The Company will not, in any transaction or series of
transactions, merge or consolidate with or into, or sell, assign, convey,
transfer, lease or otherwise dispose of all or substantially all of its
properties and assets as an entirety to, any Person or Persons, and the Company
will not permit any of the Restricted Subsidiaries to enter into any such
transaction or series of transactions if such transaction or series of
transactions, in the aggregate, would result in a sale, assignment, conveyance,
transfer, lease or other disposition of all or substantially all of the
properties and assets of the Company and the Restricted Subsidiaries, taken as a
whole, to any other Person or Persons, unless at the time of and after giving
effect thereto:
(i) either (a) if the transaction or series of transactions
is a merger or consolidation, the Company shall be the surviving Person
of such merger or consolidation, or (b) the Person formed by any such
consolidation or into which the Company or such Restricted Subsidiary
is merged or to which the properties and assets of the Company and/or
any Restricted Subsidiary, as the case may be, are transferred (any
such surviving Person or transferee Person being a "Surviving Entity")
shall be a partnership or corporation organized and existing under the
laws of the United States of America, any state thereof or the District
of Columbia and shall expressly assume by a supplemental indenture
executed and delivered to the Trustee, in form reasonably satisfactory
to the Trustee, all the obligations of the Company under the Securities
and this Indenture, and, in each case, this Indenture shall remain in
full force and effect;
(ii) immediately before and immediately after giving effect
to such transaction or series of transactions on a pro forma basis
(including, without limitation, any Indebtedness incurred or
anticipated to be incurred in connection with or in respect of such
transaction or series of transactions), no Default shall have occurred
and be continuing;
(iii) immediately after giving effect to such transaction or
series of transactions on a pro forma basis (including, without
limitation, any Indebtedness incurred or anticipated to be incurred in
connection with or in respect of such transaction or series of
transactions), the Company or the Surviving Entity, as the case may be,
could incur $1.00 of additional Indebtedness pursuant to the proviso to
the first paragraph of clause (a) of Section 4.8; provided that in the
event of a conversion of the Company from partnership to corporate form
in a transaction the primary purpose of which is to effect such
conversion and in which no additional Indebtedness is incurred or
anticipated to be incurred by the Company, the Surviving Entity or any
Restricted Subsidiary, the Surviving Entity shall not be required to be
able to incur such $1.00 of additional Indebtedness; and
(iv) the Company or its surviving entity, as the case may be,
shall deliver, or cause to be delivered, to the Trustee, in form and
substance reasonably satisfactory to the Trustee, an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, transfer, lease, assignment or other disposition
and the supplemental indenture in respect thereof comply with the
requirements of this Indenture.
Each Subsidiary Guarantor (other than any Subsidiary Guarantor
whose Subsidiary Guarantee is to be released in accordance with the terms of the
Subsidiary Guarantee and this Indenture in connection with any transaction
complying with the provisions of Section 4.17) will not, and the Company will
not cause or permit any Subsidiary Guarantor to, consolidate with or merge with
or into any Person other than the Company or another Subsidiary Guarantor
unless: (a) the entity formed by or surviving any such consolidation or merger
(if other than the Subsidiary Guarantor) is a corporation or partnership
organized and existing under the laws of the United States or any state thereof
or the District of Columbia; (b) such entity assumes by supplemental indenture
all of the obligations of the Subsidiary Guarantor under its Subsidiary
Guarantee; (c) immediately after giving effect to such transaction, no Default
or Event of Default shall have occurred and be continuing; and (d) immediately
after giving effect to such transaction and the use of any net proceeds
therefrom on a pro forma basis, the Company could satisfy the provisions of
clause (iii) of the first paragraph of this Section. Any merger or consolidation
of a Subsidiary Guarantor with and into the Company (with the Company being the
Surviving Entity) or another Subsidiary Guarantor need only comply with clause
(ii) of the first paragraph of this Section.
SECTION V.2 Successor Entity Substituted.
Upon any consolidation, combination, merger or any transfer of
all or substantially all of the assets of a Person subject to, and in accordance
with Section 5.1, the Surviving Entity formed by such consolidation or
combination or into which the Company is merged or to which such transfer is
made shall succeed to, and be substituted for, and may exercise every right and
power of, the Company under this Indenture with the same effect as if such
Surviving Entity had been named as the Company herein; provided that, solely for
purposes of computing Available Operating Cash Flow for purposes of clause (iii)
of the first paragraph of Section 4.9, the Available Operating Cash Flow of any
Persons other than the Company and the Restricted Subsidiaries shall only be
included for periods subsequent to the effective time of such consolidation,
combination, merger or transfer of assets.
SECTION V.3 Status of Subsidiaries.
For all purposes of this Indenture and the Securities
(including the provisions of this Article V and Sections 4.8, 4.9 and 4.10),
Subsidiaries of any Surviving Entity will, upon such transaction or series of
transactions, become Restricted Subsidiaries or Unrestricted Subsidiaries as
provided pursuant to Section 4.16 and all Indebtedness, and all Liens on
property or assets, of the Company and the Restricted Subsidiaries immediately
prior to such transaction or series of transactions will be deemed to have been
incurred to upon such transaction or series of transactions; provided that in
the event of a conversion of the Company from partnership to corporate form in a
transaction the purpose of which is to effect such conversion and in which no
additional Indebtedness is incurred or anticipated to be incurred by the
Company, the Surviving Entity or any Restricted Subsidiary, no Indebtedness of
the Company and the Restricted Subsidiaries shall be deemed to have been
incurred upon such transaction or series of transactions.
ARTICLE VI
DEFAULT AND REMEDIES
SECTION VI.1 Events of Default.
(a) An "Event of Default" occurs if:
(i) there is a default in the payment of the principal of,
or premium, if any, on the Securities when due, at maturity, upon
redemption or otherwise (including pursuant to a Change of Control
Offer or an Asset Sale Offer); or
(ii) there is a default in the payment of interest on the
Securities when it becomes due and payable and continuance of such
default for a period of 30 days; or
(iii) there is a default in the performance, or breach, of
any covenant described in Section 5.1; or
(iv) there is a default in the performance of or compliance
with, or breach of, any term, covenant, condition or provision of the
Securities or this Indenture (other than those specified in clause (i)
or (ii) above) and such default continues for a period of 30 days after
written notice to the Company thereof by the Trustee or holders of at
least 25% of the aggregate principal amount at maturity of the
Securities then outstanding; or
(v) either (a) one or more default or defaults in the
payment of any principal under one or more agreements, instruments,
mortgages, bonds, debentures or other evidences of Indebtedness (each,
a "Debt Instrument") under which the Company or one or more Restricted
Subsidiaries or the Company and one or more Restricted Subsidiaries
then have outstanding Indebtedness in excess of $50.0 million,
individually or in the aggregate, or (b) any other default or defaults
under one or more Debt Instruments under which the Company or one or
more Restricted Subsidiaries or the Company and one or more Restricted
Subsidiaries then have outstanding Indebtedness in excess of $50.0
million, individually or in the aggregate, and, in the case of this
clause (b), either (x) such Indebtedness is already due and payable in
full by its terms or (y) such default or defaults have resulted in the
acceleration of the maturity of such Indebtedness; or
(vi) one or more judgments, orders or decrees of any court or
regulatory or administrative agency of competent jurisdiction for the
payment of money in excess of $50.0 million, either individually or in
the aggregate, shall be entered against the Company or any Restricted
Subsidiary or any of their respective properties and shall not be
discharged or fully bonded and there shall have been a period of 60
days after the date on which any period for appeal has expired and
during which a stay of enforcement of such judgment, order or decree
shall not be in effect; or
(vii) any holder of at least $50.0 million in aggregate
principal amount of Indebtedness of the Company or any of the
Restricted Subsidiaries, or its trustee, agent or representative, shall
commence (or have commenced on its behalf) judicial proceedings to
foreclose upon assets of the Company or any of the Restricted
Subsidiaries having an aggregate Fair Market Value, individually or in
the aggregate, in excess of $50.0 million or shall have exercised any
right under applicable law or applicable security documents to take
ownership of any such assets in lieu of foreclosure; or
(viii) any Subsidiary Guarantee ceases to be in full force and
effect or is declared null and void or a Subsidiary Guarantor denies
that it has any further liability under its Subsidiary Guarantee or
gives notice to such effect; or
(ix) an Issuer, any Subsidiary Guarantor or any Material
Restricted Subsidiary (a) admits in writing its inability to pay its
debts generally as they become due, (b) commences a voluntary case or
proceeding under any Bankruptcy Law with respect to itself, (c)
consents to the entry of a judgment, decree or order for relief against
it in an involuntary case or proceeding under any Bankruptcy Law, (d)
consents to the appointment of a Custodian (as defined below) of it or
for substantially all of its property, (e) consents to or acquiesces in
the institution of a bankruptcy or an insolvency proceeding against it,
(f) makes a general assignment for the benefit of its creditors or (g)
takes any partnership or corporate action, as the case may be, to
authorize or effect any of the foregoing;
(x) a court of competent jurisdiction enters a judgment,
decree or order for relief in respect of an Issuer, any Subsidiary
Guarantor or any Material Restricted Subsidiary in an involuntary case
or proceeding under any Bankruptcy Law, which shall (a) approve as
properly filed a petition seeking reorganization, arrangement,
adjustment or composition in respect of an Issuer, any Subsidiary
Guarantor or any Material Restricted Subsidiary, (b) appoint a
Custodian of the Company or any of its Subsidiaries or for
substantially all of any of their property or (c) order the winding-up
or liquidation of its affairs; and such judgment, decree or order shall
remain unstayed and in effect for a period of 60 consecutive days.
(b) For purposes of this Article VI: the term "Custodian"
means any receiver, interim receiver, receiver and manager, trustee, assignee,
liquidator, sequestrator or similar official charged with maintaining possession
or control over property for one or more creditors, whether under any Bankruptcy
Law or otherwise.
SECTION VI.2 Acceleration.
If an Event of Default (other than an Event of Default
specified in Section 6.1(a)(ix) or (x) with respect to an Issuer) occurs and is
continuing, the Holders of at least 25% in principal amount at maturity of the
outstanding Securities may, by written notice to the Issuers and the Trustee,
and the Trustee upon the request of the Holders of not less than 25% in
principal amount at maturity of the outstanding Securities shall by written
notice to the Issuers, declare the Default Amount to be due and payable
immediately. Upon any such declaration such amounts shall become due and payable
immediately. If an Event of Default specified in Section 6.1(a)(ix) or (x)
occurs and is continuing with respect to an Issuer, then the Default Amount
shall ipso facto become and be immediately due and payable without any
declaration or other act on the part of the Trustee or any Holder. The Holders
of a majority in aggregate principal amount at maturity of outstanding
Securities may, by notice to the Trustee, rescind such declaration of
acceleration if all existing Events of Default have been cured or waived, other
than the non-payment of the Default Amount and any accrued interest on the
Securities that has become due solely as a result of such acceleration and if
the rescission of acceleration would not conflict with any judgment or decree.
No such rescission shall affect any subsequent default or impair any right
consequent thereto.
SECTION VI.3 Other Remedies.
If an Event of Default occurs and is continuing, the Trustee
may pursue any available remedy by proceeding at law or in equity to collect the
payment of principal of or interest on the Securities, or to enforce the
performance of any provision of the Securities, this Indenture or any Subsidiary
Guarantee.
All rights of action and claims under this Indenture, or the
Securities or any Subsidiary Guarantee may be enforced by the Trustee even if
the Trustee does not possess any of the Securities or does not produce any of
them in the proceeding. A delay or omission by the Trustee or any Securityholder
in exercising any right or remedy accruing upon an Event of Default shall not
impair the right or remedy or constitute a waiver of or acquiescence in the
Event of Default. No remedy is exclusive of any other remedy. All available
remedies are cumulative to the extent permitted by law.
SECTION VI.4 Waiver of Past Default.
Subject to Sections 6.7 and 9.2, the Holders of, in the
aggregate, a majority in aggregate principal amount at maturity of the
outstanding Securities by notice to the Trustee may waive an existing Default or
Event of Default and its consequences, except a Default specified in Section
6.1(a)(i) or (ii) or in respect of any provision hereof that cannot be modified
or amended without the consent of the Holder so affected pursuant to Section
9.2. When a Default or Event of Default is so waived, it shall be deemed cured
and shall cease to exist.
SECTION VI.5 Control by Majority.
The Holders of at least a majority in principal amount at
maturity of the outstanding Securities 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; provided that the Trustee may refuse to
follow any direction that (i) conflicts with law or this Indenture, (ii) the
Trustee determines may be unduly prejudicial to the rights of another
Securityholder, or (iii) may involve the Trustee in personal liability unless
the Trustee has indemnification satisfactory to it in its sole discretion
against any loss or expense caused by its following such direction; and
provided, further, that the Trustee may take any other action deemed proper by
the Trustee that is not inconsistent with such direction.
SECTION VI.6 Limitation on Suits.
A Securityholder may not pursue any remedy with respect to
this Indenture, the Securities or any Subsidiary Guarantee unless:
(a) the Holder gives to the Trustee written notice of a
continuing Event of Default;
(b) the Holders of at least 25% in principal amount
at maturity of the outstanding Securities make a written request to
the Trustee to pursue a remedy;
(c) such Holder or Holders offer and, if requested, provide to
the Trustee security or indemnity reasonably satisfactory to the
Trustee against any loss, liability or expense;
(d) the Trustee does not comply with the request
within 30 days after receipt of the request and the offer and, if re-
quested, provision of indemnity; and
(e) during such 30-day period the Holders of a majority in
principal amount at maturity of the outstanding Securities do not give
the Trustee a direction inconsistent with the request.
The foregoing limitations shall not apply to a suit instituted
by a Holder for the enforcement of the payment of the Default Amount, principal
of or accrued interest on the Securities on or after the respective due dates
set forth or provided for in the Securities.
A Securityholder may not use this Indenture to obtain a
preference or priority over any other Securityholder.
SECTION VI.7 Rights of Holders To Receive Payment.
Notwithstanding any other provision of this Indenture, the
right of any Holder to receive payment of the Default Amount, principal of and
interest on a Security, on or after the respective due dates expressed or
provided for in the Security, or to bring suit for the enforcement of any such
payment on or after such respective dates, is absolute and unconditional and
shall not be impaired or affected without the consent of such Holder.
SECTION VI.8 Collection Suit by Trustee.
If an Event of Default specified in Section 6.1(a)(i) or (ii)
occurs and is continuing, the Trustee may recover judgment in its own name and
as trustee of an express trust against the Issuers or any other obligor on the
Securities for the whole amount of principal and accrued interest remaining
unpaid, together with interest overdue on principal and, to the extent that
payment of such interest is lawful, interest on overdue installments of
interest, in each case at the interest rate borne by the Securities and 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.
SECTION VI.9 Trustee May File Proofs of Claim.
The Trustee shall be entitled and empowered to file such
proofs of claim and other papers or documents as may be necessary or advisable
in order to have the claims of the Trustee (including any claim for the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel) and the Securityholders allowed in any judicial
proceedings relative to the Issuers or any Subsidiary Guarantor (or any other
obligor upon the Securities), their creditors or their property and shall be
entitled and empowered to collect and receive any monies or other property
payable or deliverable on any such claims and to distribute the same, and any
Custodian in any such judicial proceedings is hereby authorized by each
Securityholder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the
Securityholders, to pay to the Trustee any amount due to it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agent and
counsel, and any other amounts due the Trustee under Section 7.7. Nothing herein
contained shall be deemed to authorize the Trustee to authorize or consent to or
accept or adopt on behalf of any Securityholder any plan of reorganization,
arrangement, adjustment or composition affecting the Securities or the rights of
any Holder thereof, or to authorize the Trustee to vote in respect of the claim
of any Securityholder in any such proceeding.
SECTION VI.10 Priorities.
If the Trustee collects any money pursuant to this Article VI,
it shall pay out such money in the following order:
First: to the Trustee for amounts due under Section 7.7;
Second: to Holders for interest accrued on the Securities,
ratably, without preference or priority of any kind, according to
the amounts due and payable on the Securities for interest;
Third: to Holders for Accreted Value or principal amounts,
as the case may be, owing under the Securities, ratably, without
preference or priority of any kind, according to the amounts due
and payable on the Securities for principal; and
Fourth: to the Issuers or any Subsidiary Guarantor, as their
respective interests may appear.
The Trustee, upon prior written notice to the Issuers, may fix
a record date and payment date for any payment to Securityholders pursuant to
this Section 6.10.
SECTION VI.11 Undertaking for Costs.
In any suit for the enforcement of any right or remedy under
this Indenture or in any suit against the Trustee for any action taken or
omitted by it as Trustee, a court in its discretion may require the filing by
any party litigant in the suit of an undertaking to pay the costs of the suit,
and the court in its discretion may assess reasonable costs, including
reasonable attorneys' fees, against any party litigant in the suit, having due
regard to the merits and good faith of the claims or defenses made by the party
litigant. This Section 6.11 does not apply to a suit by the Trustee, a suit by a
Holder pursuant to Section 6.7 or a suit by Holders of more than 10% in
aggregate principal amount at maturity of the outstanding Securities.
ARTICLE VII
TRUSTEE
SECTION VII.1 Duties of Trustee.
(a) If an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture and use the same degree of care and skill in its exercise as a prudent
person would exercise or use under the circumstances in the conduct of such
person's own affairs.
(b) Except during the continuance of an Event of Default:
(i) The Trustee undertakes to perform such duties as are
specifically set forth in this Indenture and no implied covenants or
obligations shall be read into this Indenture against the Trustee.
(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.
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(i) this paragraph does not limit the effect of paragraph
(b) of this Section 7.1;
(ii) the Trustee shall not be liable for any error of
judgment made in good faith by a Trust Officer, unless it is proved
that the Trustee was negligent in ascertaining the pertinent facts; and
(iii) the Trustee shall not be liable with respect to any
action it takes or omits to take in good faith and reasonably believed
by it to be authorized or within the discretion or rights or powers
conferred upon it by this Indenture.
(d) No provision of this Indenture shall require the Trustee
to expend or risk its own funds or otherwise incur any financial liability in
the performance of any of its duties hereunder or in the exercise of any of its
rights or powers if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it.
(e) Every provision of this Indenture that in any way relates
to the Trustee is subject to paragraphs (a), (b), (c) and (d) of this Section
7.1.
(f) The Trustee may refuse to perform any duty or exercise any
right or power unless it is provided adequate funds to enable it to do so and it
receives indemnity satisfactory to it in its sole discretion against any loss,
liability, fee or expense.
SECTION VII.2 Rights of Trustee.
Subject to TIA ss.ss. 315(a)-(d) and except as provided in
Section 7.1:
(a) The Trustee may rely upon any document believed by it to
be genuine and to have been signed or presented by the proper Person.
The Trustee shall not be bound to make any investigation into the facts
or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of indebtedness or other
paper or document, but the Trustee, in its discretion, may make such
further inquiry or investigation into such facts or matters as it may
see fit, and, if the Trustee shall determine to make such further
inquiry or investigation, it shall be entitled, upon reasonable notice,
to examine the books, records and premises of the Issuers, personally
or by agent or attorney at the sole cost of the Company and shall incur
no liability or additional liability of any kind by reason of such
inquiry or investigation.
(b) Before the Trustee acts or refrains from acting with
respect to any matter contemplated by this Indenture, it may require an
Officers' Certificate from each of the Issuers or an Opinion of Counsel
from each of the Issuers, that shall conform to the provisions of
Section 11.5. The Trustee shall not be liable for any action it takes
or omits to take in good faith in reliance on such certificate 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
(other than the negligence or willful misconduct of an agent who is an
employee of the Trustee) appointed with due care.
(d) The Trustee shall not be liable for any action it takes or
omits to take in good faith that it reasonably believes to be
authorized or within its rights or powers; provided, however, that the
foregoing shall apply only if the Trustee's conduct does not constitute
negligence or bad faith.
(e) The Trustee may consult with counsel of its selection and
the advice or opinion of such counsel as to matters of law shall be
full and complete authorization and protection from liability in
respect of any action taken, omitted or suffered by it hereunder in
good faith and in accordance with the advice or opinion of such
counsel.
(f) The Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request
or direction of any Holder pursuant to this Indenture, unless such
Holder shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction.
SECTION VII.3 Individual Rights of Trustee.
The Trustee in its individual capacity or any other capacity
may become the owner or pledgee of Securities and may otherwise deal with the
Issuers or their Affiliates with the same rights it would have if it were not
Trustee. Any Agent may do the same with like rights. However, the Trustee is
subject to Sections 7.10 and 7.11.
SECTION VII.4 Trustee's Disclaimer.
The Trustee shall not be responsible for and makes no
representation as to the validity or adequacy of this Indenture, the Securities
or any Subsidiary Guarantee, it shall not be accountable for the Company's use
of the proceeds from the issuance of the Securities and it shall not be
responsible for any statement of the Issuers in this Indenture or any document
issued in connection with the sale of Securities or any statement in the
Securities other than the Trustee's certificate of authentication.
SECTION VII.5 Notice of Defaults.
If a Default or an Event of Default with respect to the
Securities occurs and is continuing and is known to the Trustee, the Trustee
shall give notice of the Default or Event of Default within 30 days after the
Trustee acquires knowledge of the occurrence thereof to all Holders as their
names and addresses appear on the Register, unless such Default shall have been
cured or waived before the mailing of such notice. Except in the case of a
Default or an Event of Default in payment of principal of or interest on any
Security, the Trustee may withhold the notice to the Securityholders if a
committee of its Trust Officers in good faith determines that withholding the
notice is in the interest of Securityholders.
SECTION VII.6 Reports by Trustee to Holders.
To the extent required by TIA ss. 313(a), within 60 days after
May 15 of each year commencing with 1997 and for as long as there are Securities
outstanding hereunder, the Trustee shall mail to each Securityholder the
Trustee's brief report dated as of such date that complies with TIA ss. 313(a).
The Trustee also shall comply with TIA ss. 313(b) and TIA ss. 313(c) and (d). A
copy of such report at the time of its mailing to Securityholders shall be filed
with the Commission, if required, and each stock exchange, if any, on which the
Securities are listed.
SECTION VII.7 Compensation and Indemnity.
The Issuers shall pay to the Trustee, the Paying Agent and the
Registrar from time to time such compensation as shall be agreed to in writing
from time to time by the Trustee and the Issuers for their respective services
rendered hereunder. The Trustee's, the Paying Agent's and the Registrar's
compensation shall not be limited by any law on compensation of a trustee of an
express trust. The Issuers shall reimburse the Trustee, the Paying Agent and the
Registrar upon request for all reasonable out-of-pocket disbursements, expenses
and advances (including reasonable fees and expenses of counsel) incurred or
made by each of them in addition to the compensation for their respective
services. Such expenses shall include the reasonable compensation, out-of-pocket
disbursements and expenses of the Trustee's, the Paying Agent's and the
Registrar's agents and counsel.
The Issuers shall indemnify each of the Trustee, any
predecessor Trustee, the Paying Agent and the Registrar for, and hold each of
them harmless against, any claim, demand, expense (including but not limited to
their respective reasonable attorneys' fees and expenses), loss or liability,
including taxes (other than taxes based upon, measured by or determined by the
income of the Trustee) incurred by each of them arising out of or in connection
with the administration of this Indenture and their respective duties hereunder
or thereunder. Each of the Trustee, the Paying Agent and the Registrar shall
notify the Issuers promptly of any claim asserted against it for which it may
seek indemnity. However, failure by the Trustee, the Paying Agent or the
Registrar to so notify the Issuers shall not relieve the Issuers of their
obligations hereunder. The Issuers need not reimburse any expense or indemnify
against any loss or liability incurred by the Trustee, the Paying Agent or the
Registrar through the Trustee's, the Paying Agent's or the Registrar's, as the
case may be, own willful misconduct, negligence or bad faith.
To secure the Issuers' payment obligations in this Section 7.7
and in Section 6.9 (insofar as the Trustee is concerned), each of the Trustee,
the Paying Agent and the Registrar shall have a lien prior to the Securities on
all money or property held or collected by it, in its capacity as Trustee,
Paying Agent or Registrar, as the case may be, except money or property held in
trust to pay principal of or interest on particular Securities. Such lien shall
survive the satisfaction and discharge of this Indenture or any other
termination under the Bankruptcy Law.
Subject to any other rights available to the Trustee, the
Registrar and the Paying Agent under any Bankruptcy Law, when any of the
Trustee, the Paying Agent and the Registrar incurs expenses or renders services
after an Event of Default specified in Section 6.1(a)(ix) or (x) with respect to
an Issuer occurs, the parties hereto and the Securityholders, by acceptance of
the Securities, hereby agree that the expenses and the compensation for the
services are intended to constitute expenses of administration under any
Bankruptcy Law.
The provisions of this Section 7.7 shall survive the
termination of this Indenture.
SECTION VII.8 Replacement of Trustee.
The Trustee may resign at any time by so notifying the Issuers
in writing, such resignation to be effective upon the appointment of a successor
Trustee. The Holders of a majority in principal amount at maturity of the
outstanding Securities may remove the Trustee by so notifying the Trustee in
writing and may appoint a successor Trustee with the Issuers' consent, which
consent shall not be unreasonably withheld. The Issuers may remove the Trustee
if:
(a) the Trustee fails to comply with Section 7.10;
(b) the Trustee is adjudged a bankrupt or an insolvent;
(c) a receiver or other public officer takes charge of
the Trustee or its property; or
(d) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in
the office of the Trustee for any reason (the Trustee in such event being
referred to herein as the retiring Trustee), the Issuers shall promptly appoint
a successor Trustee. Within one year after the successor Trustee takes office,
the Holders of a majority in principal amount of the Securities may appoint a
successor Trustee to replace the successor Trustee appointed by the Issuers.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Issuers. Immediately after that,
the retiring Trustee shall transfer all property held by it as Trustee to the
successor Trustee (subject to the lien provided in Section 7.7), 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. A successor Trustee shall mail notice of its succession to each
Securityholder.
If a successor Trustee does not take office within 30 days
after the retiring Trustee resigns or is removed, the retiring Trustee, the
Issuers or the Holders of at least 25% in principal amount at maturity of the
outstanding Securities may petition any court of competent jurisdiction for the
appointment of a successor Trustee.
If the Trustee fails to comply with Section 7.10, any
Securityholder may petition any court of competent jurisdiction for the removal
of the Trustee and the appointment of a successor Trustee.
Notwithstanding replacement of the Trustee pursuant to this
Section 7.8, the Issuers' obligations under Section 7.7 shall continue for the
benefit of the retiring Trustee.
SECTION VII.9 Successor Trustee by Merger, Etc.
If the Trustee consolidates with, merges or converts into, or
transfers all or substantially all of its corporate trust business to, another
corporation or national banking association, the resulting, surviving or
transferee corporation or national banking association without any further act
shall be the successor Trustee provided such corporation shall be otherwise
qualified and eligible under this Article VII.
SECTION VII.10 Eligibility; Disqualification.
This Indenture shall always have a Trustee who satisfies the
requirements of TIA ss. 310(a)(1) and (2). The Trustee shall have a combined
capital and surplus of at least $50,000,000 as set forth in its most recent
published annual report of condition. The Trustee shall comply with TIA ss.
310(b) subject to its rights to apply for a stay of its duty to resign under the
penultimate paragraph of TIA ss. 310(b). The provisions of TIA ss. 310 shall
refer to the Issuers and any Subsidiary Guarantor as obligors in respect of the
Securities.
SECTION VII.11 Preferential Collection of
Claims Against Issuers.
The Trustee shall comply with TIA ss. 311(a), excluding any
creditor relationship listed in TIA ss. 311(b). A Trustee who has resigned or
been removed shall be subject to TIA ss. 311(a) to the extent indicated therein.
The provisions of TIA ss. 311 shall refer to the Issuers and any Subsidiary
Guarantor, if applicable, as obligors in respect of the Securities.
SECTION VII.12 Money Held in Trust.
Money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required by law. The Trustee
shall be under no liability for interest on any money received by it hereunder
except as otherwise agreed in writing with the Issuers.
SECTION VII.13 Preferred Collection of Claims.
If and when the Trustee shall be or become a creditor of the
Issuers (or any other obligor upon the Securities), the Trustee shall be subject
to the provisions of the TIA regarding the collection of claims against the
Issuers (or any such other obligor).
ARTICLE VIII
DISCHARGE OF INDENTURE; DEFEASANCE
SECTION VIII.1 Satisfaction and Discharge.
This Indenture will be discharged and will cease to be of
further effect (except as to surviving rights of registration of transfer or
exchange of the Securities, as expressly provided for in this Indenture) as to
all outstanding Securities when:
(1) either (a) all the Securities, theretofore authenticated
and delivered (except lost, stolen or destroyed Securities that have
been replaced or paid and Securities for whose payment money has
theretofore been deposited in trust or segregated and held in trust by
the Issuers and thereafter repaid to the Issuers or discharged from
such trust) have been delivered to the Trustee for cancellation or (b)
all Securities not theretofore delivered to the Trustee for
cancellation have become due and payable and the Issuers have
irrevocably deposited or caused to be deposited with the Trustee U.S.
Legal Tender in an amount sufficient to pay and discharge the entire
Indebtedness on the Securities not theretofore delivered to the Trustee
for cancellation, for principal of, premium, if any, and interest on
the Securities to the date of deposit together with irrevocable
instructions from the Issuers directing the Trustee to apply such funds
to the payment thereof at maturity or redemption, as the case may be;
(2) the Issuers have paid all other sums payable under
this Indenture by them; and
(3) each of the Issuers has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel stating that all
conditions precedent under this Indenture relating to the satisfaction
and discharge of this Indenture have been complied with.
SECTION VIII.2 Legal Defeasance and Covenant
Defeasance.
(a) The Issuers may, at their option by Resolution, at any
time, with respect to the Securities, elect to have either paragraph (b) or
paragraph (c) below be applied to the outstanding Securities upon compliance
with the conditions set forth in paragraph (d).
(b) Upon the Issuers' exercise under paragraph (a) of the
option applicable to this paragraph (b), the Issuers and any Subsidiary
Guarantor, if any, shall be deemed to have been released and discharged from its
obligations with respect to the outstanding Securities on the date the
conditions set forth below are satisfied (hereinafter, "legal defeasance"). For
this purpose, such legal defeasance means that the Issuers shall be deemed to
have paid and discharged the entire indebtedness represented by the outstanding
Securities, which shall thereafter be deemed to be "outstanding" only for the
purposes of paragraph (e) below and the other Sections of and matters under this
Indenture referred to in (i) and (ii) below, and to have satisfied all its other
obligations under such Securities and this Indenture insofar as such Securities
are concerned (and the Trustee, at the expense of the Issuers, shall execute
proper instruments acknowledging the same), except for the following that shall
survive until otherwise terminated or discharged hereunder: (i) the rights of
Holders of outstanding Securities to receive solely from the trust fund
described in paragraph (d) below and as more fully set forth in such paragraph,
payments in respect of the principal of, premium, if any, and interest on such
Securities when such payments are due, (ii) the Issuers' obligations with
respect to such Securities under Sections 2.2, 2.3, 2.6, 2.7, 2.8, 4.1, 4.2 and
4.19, and, with respect to the Trustee, under Sections 7.7 and 7.8, (iii) the
rights, powers, trusts, duties and immunities of the Trustee hereunder and (iv)
this Section 8.2 and Sections 8.3, 8.4 and 8.5. Subject to compliance with this
Section 8.2, the Issuers may exercise their option under this paragraph (b)
notwithstanding the prior exercise of their option under paragraph (c) below
with respect to the Securities.
(c) Upon the Issuers' exercise under paragraph (a) of the
option applicable to this paragraph (c), the Issuers shall be released and
discharged from their obligations under any covenant contained in Article V and
in Sections 4.4 through 4.18 (except for obligations mandated by the TIA) with
respect to the outstanding Securities on and after the date the conditions set
forth below are satisfied (hereinafter, "covenant defeasance"), and the
Securities and each Subsidiary Guarantee, if any, shall thereafter be deemed to
be not "outstanding" for the purpose of any direction, waiver, consent or
declaration or act of Holders (and the consequences of any thereof) in
connection with such covenants, but shall continue to be deemed "outstanding"
for all other purposes hereunder. For this purpose, such covenant defeasance
means that, with respect to the outstanding Securities, the Issuers and any
Subsidiary Guarantor, if any, may omit to comply with and shall have no
liability in respect of any term, condition or limitation set forth in any such
covenant, whether directly or indirectly, by reason of any reference elsewhere
herein to any such covenant or by reason of any reference in any such covenant
to any other provision herein or in any other document and such omission to
comply shall not constitute a Default or an Event of Default under Sections
6.1(a)(iii) or 6.1(a)(iv), but, except as specified above, the remainder of this
Indenture and such Securities shall be unaffected thereby.
(d) The following shall be the conditions to appli-
cation of either paragraph (b) or paragraph (c) above to the outstanding
Securities:
(i) the Issuers must irrevocably deposit with the Trustee,
in trust, for the benefit of the holders of the Securities, cash in
United States Dollars, direct non-callable obligations of, or
non-callable obligations guaranteed by, the United States of America
for the payment of which obligation or guarantee the full faith and
credit of the United States is pledged ("US Government Obligations"),
or a combination thereof, in such amounts as will be sufficient to pay
the principal of, premium, if any, and interest on the outstanding
Securities to redemption or maturity (except lost, stolen or destroyed
Securities that have been replaced or paid);
(ii) each of the Issuers shall have delivered to the Trustee
an Opinion of Counsel to the effect that the holders of the outstanding
Securities will not recognize income, gain or loss for Federal income
tax purposes as a result of such legal defeasance or covenant 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 or covenant legal defeasance had not
occurred (in the case of legal defeasance, such opinion must refer to
and be based upon a ruling of the Internal Revenue Service or a change
in applicable Federal income tax laws);
(iii) no Default under this Indenture shall have
occurred and be continuing on the date of such deposit;
(iv) such legal defeasance or covenant defeasance shall not
cause the Trustee to have a conflicting interest with respect to any
securities of the Issuers;
(v) such legal defeasance or covenant defeasance shall not
result in a breach or violation of, or constitute a default under, any
agreement or instrument to which the Issuers or any of their
Subsidiaries is a party or by which it is bound;
(vi) each of the Issuers shall have delivered to the Trustee
an Opinion of Counsel to the effect that after the 91st day following
their deposit, the trust funds will not be subject to the effect of any
applicable bankruptcy, insolvency, reorganization or similar laws
affecting creditors' rights generally or to the rights of any creditor
of the Issuers or any Subsidiary Guarantor other than those continuing
rights of the applicable holders of Securities; and
(vii) each of the Issuers shall have delivered to the Trustee
an Officers' Certificate and an Opinion of Counsel, each stating that
all conditions precedent under this Indenture to either legal
defeasance or covenant defeasance, as the case may be, have been
complied with.
(e) All United States Dollars and U.S. Government Obligations
(including the proceeds thereof) deposited with the Trustee (or other qualifying
trustee, collectively for purposes of this paragraph (e), the "Trustee")
pursuant to paragraph (d) above in respect of the outstanding Securities shall
be held in trust and applied by the Trustee, in accordance with the provisions
of such Securities and this Indenture, to the payment, either directly or
through any Paying Agent as the Trustee may determine, to the Holders of such
Securities of all sums due and to become due thereon in respect of principal,
premium and interest, but such money need not be segregated from other funds
except to the extent required by law.
The Issuers shall pay and indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against the U.S. Government
Obligations deposited pursuant to paragraph (d) above or the principal, premium,
if any, and interest received in respect thereof other than any such tax, fee or
other charge that by law is for the account of the Holders of the outstanding
Securities.
Anything in this Section 8.2 to the contrary notwithstanding,
the Trustee shall deliver or pay to the Issuers from time to time upon the
request, in writing, by the Issuers any money or U.S. Government Obligations
held by it as provided in paragraph (d) above that, in the opinion of a
nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, are in excess of the
amount thereof that would then be required to be deposited to effect an
equivalent legal defeasance or covenant defeasance.
SECTION VIII.3 Application of Trust Money.
The Trustee shall hold in trust money or U.S. Government
Obligations deposited with it pursuant to Sections 8.1 and 8.2, and shall apply
the deposited money and the money from U.S. Government Obligations in accordance
with this Indenture to the payment of principal of, premium, if any, and
interest on the Securities.
SECTION VIII.4 Repayment to the Issuers or a
Subsidiary Guarantor.
Subject to Sections 7.7, 8.1 and 8.2, the Trustee and the
Paying Agent shall promptly pay to the Issuers, or if deposited with the Trustee
by any Subsidiary Guarantor, to such Subsidiary Guarantor upon receipt by the
Trustee and the Paying Agent of Officers' Certificates stating the amount to
which each of the Issuers or such Subsidiary Guarantor, as the case may be, is
entitled, any excess money, determined in accordance with Section 8.2(e), held
by it at any time. The Trustee and the Paying Agent shall pay to the Issuers or
such Subsidiary Guarantor, as the case may be, upon receipt by the Trustee or
the Paying Agent, as the case may be, of Officers' Certificates stating the
amount to which the Issuers or such Subsidiary Guarantor, as the case may be, is
entitled, any money held by it for the payment of principal, premium, if any, or
interest that remains unclaimed for two years after payment to the Holders is
required; provided, however, that the Trustee and the Paying Agent before being
required to make any payment may, but need not, at the expense of the Issuers,
mail by first-class mail to each Holder of Securities entitled to such money at
such Holder's address as set forth on the Register notice that such money
remains unclaimed and that after a date specified therein, which shall be at
least one year from the date of such publication or mailing, any unclaimed
balance of such money then remaining will be repaid to the Issuers or such
Subsidiary Guarantor, as the case may be. After payment to the Issuers or such
Subsidiary Guarantor, as the case may be, Securityholders entitled to money must
look solely to the Issuers and such Subsidiary Guarantor for payment as general
creditors unless an applicable abandoned property law designates another Person,
and all liability of the Trustee or Paying Agent with respect to such money
shall thereupon cease.
SECTION VIII.5 Reinstatement.
With respect to the circumstances referred to in Section 8.1
and 8.2, if the Trustee or Paying Agent is unable to apply any money or U.S.
Government Obligations in accordance with this Indenture 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, then
and only then the Issuers' and any Subsidiary Guarantor's (if any) obligations
under this Indenture and the Securities shall be revived and reinstated as
though no deposit had been made pursuant to this Indenture 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 Indenture; provided, that if the
Issuers or any such Subsidiary Guarantor has made any payment of principal of,
premium, if any, or interest on any Securities because of the reinstatement of
its obligations, the Issuers or any such Subsidiary Guarantor, as the case may
be, shall be subrogated to the rights of the Holders of such Securities to
receive such payment from the money or U.S. Government Obligations held by the
Trustee or Paying Agent.
ARTICLE IX
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION IX.1 Without Consent of Holders.
The Issuers and any Subsidiary Guarantors, when authorized by
Resolutions of their respective Boards, and the Trustee may amend, waive or
supplement this Indenture and the Securities without notice to or consent of any
Securityholder:
(a) to cure any ambiguity, defect or inconsistency,
provided that such amendment or supplement does not adversely
affect the rights of any Holder;
(b) to comply with any requirements of the Commission un-
der the TIA;
(c) to evidence the succession in accordance with Article V
hereof of another Person and the assumption by any such successor of
the covenants of any of the Issuers or any Subsidiary Guarantor herein
and in the Securities;
(d) to evidence and provide for the acceptance of
appointment hereunder by a successor Trustee with respect to the
Securities;
(e) to make any change that does not adversely affect the
rights of any Holder; or
(f) to add a Subsidiary Guarantor pursuant to Section
4.11.
SECTION IX.2 With Consent of Holders.
Subject to Section 6.7 and the provisions of this Section 9.2,
the Issuers and any Subsidiary Guarantors, when authorized by Resolutions of
their respective Boards, and the Trustee may amend or supplement this Indenture
or the Securities in any respect with the written consent of the Holders of not
less than a majority in aggregate principal amount at maturity of the Securities
then outstanding. Subject to Section 6.7 and the provisions of this Section 9.2,
the Holders of, in the aggregate, at least a majority in aggregate principal
amount at maturity of the outstanding Securities affected may waive compliance
by the Issuers or any Subsidiary Guarantor with any provision of this Indenture,
the Securities or any Subsidiary Guarantee, as the case may be, without notice
to any other Securityholder.
Notwithstanding the foregoing, without the consent of each
Securityholder affected, an amendment, supplement or waiver, including a waiver
pursuant to Section 6.4, may not:
(a) reduce the principal amount of or Accreted Value
of, extend the fixed maturity of, or alter the redemption provisions
of, the Securities;
(b) change the currency in which any Securities or any
premium or the accrued interest thereon is payable;
(c) reduce the percentage in principal amount of outstanding
Securities which must consent to an amendment, supplement or waiver or
consent to take any action under this Indenture, the Securities or any
Subsidiary Guarantees;
(d) impair the right to institute suit for the en-
forcement of any payment on or with respect to the Securities or any
Subsidiary Guarantee;
(e) waive a default in payment with respect to the Secur-
ities;
(f) reduce the rate or extend the time for payment of in-
terest on the Securities or amend the rate of accretion on the Secu-
rities or amend the definition of Accreted Value;
(g) alter the obligation to purchase the Securities in
accordance with this Indenture following the occurrence of an Asset
Sale or a Change of Control or waive any default in the performance
thereof;
(h) adversely affect the ranking of the Securities or any
Subsidiary Guarantees;
(i) release any Subsidiary Guarantee other than in accor-
dance with this Indenture; or
(j) modify this Section 9.2 or Section 6.4.
It shall not be necessary for the consent of the Holders under
this Section 9.2 to approve the particular form of any proposed amendment,
supplement or waiver, but it shall be sufficient if such consent approves the
substance thereof.
After an amendment or waiver under this Section 9.2 becomes
effective, the Issuers shall mail to the Holders affected thereby a notice
briefly describing the amendment or waiver. Any failure of the Issuers to mail
such notice, or any defect therein, shall not, however, in any way impair or
affect the validity of any such amendment or waiver.
Promptly after the execution by the Issuers and any Subsidiary
Guarantors and the Trustee of any supplemental indenture pursuant to the
provisions of this Section 9.2, the Trustee shall give notice thereof, at the
expense of the Issuers, to the Holders of then outstanding Securities, by
mailing a notice thereof by first-class mail to such Holders at their addresses
as they shall appear on the books of the Registrar, and such notice shall set
forth in general terms the substance of such supplemental indenture. Any failure
of the Trustee to give such notice, or any defect therein, shall not, however,
in any way impair or affect the validity of any such supplemental indenture.
SECTION IX.3 Compliance with Trust Indenture Act.
Every amendment to or supplement of this Indenture or the
Securities or any Subsidiary Guarantee shall comply with the TIA as then in
effect.
SECTION IX.4 Revocation and Effect of Amendments
and Consents.
Until an amendment or waiver becomes effective, a consent to
it by a Holder is a continuing consent by the Holder and every subsequent Holder
of that Security or portion of that Security that evidences the same debt as the
consenting Holder's Security, even if notation of the consent is not made on any
Security. Any such Holder or subsequent Holder, however, may revoke the consent
as to his Security or portion of a Security. Such revocation shall be effective
only if the Trustee receives the notice of revocation before the date the
amendment, supplement or waiver becomes effective. Notwithstanding the above,
nothing in this paragraph shall impair the right of any Securityholder under ss.
316(b) of the TIA.
The Issuers may, but shall not be obligated to, fix a record
date for the purpose of determining the Holders of Securities entitled to
consent to any amendment, supplement or waiver. If a record date is fixed, then
notwithstanding the second and third sentences of the immediately preceding
paragraph, those Persons who were Holders of Securities at such record date (or
their duly designated proxies), and only those Persons, shall be entitled to
consent to such amendment, supplement or waiver or to revoke any consent
previously given, whether or not such Persons continue to be Holders of
Securities after such record date. Such consent shall be effective only for
actions taken within 90 days after such record date.
After an amendment, supplement or waiver becomes effective, it
shall bind every Securityholder (and every subsequent Securityholder), unless it
makes a change described in any of clauses (a) through (j) of Section 9.2; if it
makes such a change, the amendment, supplement or waiver shall bind every Holder
consenting thereto and every subsequent Holder of a Security or portion of a
Security that evidences the same debt as the consenting Holder's Security.
SECTION IX.5 Notation on or Exchange of Securities.
If an amendment, supplement or waiver changes the terms of a
Security, the Trustee shall (in accordance with the specific direction of the
Issuers) request the Holder of the Security to deliver it to the Trustee. The
Trustee shall (in accordance with the specific direction of the Issuers) place
an appropriate notation on the Security about the changed terms and return it to
the Holder. Alternatively, if the Issuers or the Trustee so determines, the
Issuers in exchange for the Security shall issue and the Trustee shall
authenticate a new Security that reflects the changed terms. Failure to make the
appropriate notation or issue a new Security shall not affect the validity and
effect of such amendment, supplement or waiver.
SECTION IX.6 Trustee To Sign Amendments, Etc.
The Trustee shall sign any amendment, supplement or waiver
authorized pursuant to this Article IX if the amendment, supplement or waiver
does not adversely affect the rights, duties or immunities of the Trustee. If it
does, the Trustee may, but need not, sign it.
ARTICLE X
GUARANTEE
SECTION X.1 Unconditional Guarantee.
Each Subsidiary Guarantor, if any, hereby unconditionally
guarantees in accordance with the provisions of Section 4.11, to each Holder of
a Security authenticated and delivered by the Trustee and to the Trustee and its
successors and assigns, the Securities that: (i) the principal of, premium, if
any, and interest on the Securities will be promptly paid in full when due,
subject to any applicable grace period, whether at maturity, by acceleration or
otherwise and interest on the overdue principal, if any, and interest on any
interest, to the extent lawful, of the Securities to the Holders or the Trustee
will be promptly paid in full or performed, all in accordance with the terms
hereof and thereof; and (ii) in case of any extension of time of payment or
renewal of any Securities, the same will be promptly paid in full when due or
performed in accordance with the terms of the extension or renewal, subject to
any applicable grace period, whether at stated maturity, by acceleration or
otherwise, subject, however, in the case of clauses (i) and (ii) above, to the
limitations set forth in Section 10.03. Each Subsidiary Guarantor, if any,
hereby agrees that its obligations hereunder shall be unconditional,
irrespective of the validity, regularity or enforceability of the Securities or
this Indenture, the absence of any action to enforce the same, any waiver or
consent by any Holder of the Securities with respect to any provisions hereof or
thereof, the recovery of any judgment against the Issuers, and action to enforce
the same or any other circumstance that might otherwise constitute a legal or
equitable discharge or defense of a guarantor. Each Subsidiary Guarantor, if
any, hereby waives diligence, presentment, demand of payment, filing of claims
with a court in the event of insolvency or bankruptcy of the Issuers, any right
to require a proceeding first against the Issuers, protest, notice and all
demands whatsoever and covenants that its Subsidiary Guarantee will not be
discharged except by complete performance of the obligations contained in the
Securities, this Indenture and in its Subsidiary Guarantee. If any
Securityholder or the Trustee is required by any court or otherwise to return to
the Issuers, any Subsidiary Guarantor or any custodian, trustee, liquidator or
other similar official acting in relation to the Issuers or any such Subsidiary
Guarantor, any amount paid by the Issuers or any such Subsidiary Guarantor to
the Trustee or such Securityholder, each Subsidiary Guarantee to the extent
theretofore discharged, shall be reinstated in full force and effect. Each
Subsidiary Guarantor further agrees that, as between it and all other Subsidiary
Guarantors, on the one hand, and the Holders and the Trustee, on the other hand,
(x) the maturity of the obligations guaranteed hereby may be accelerated as
provided in Article VI for the purposes of a Subsidiary Guarantee
notwithstanding any stay, injunction or other prohibition preventing such
acceleration in respect of the obligations guaranteed hereby, and (y) in the
event of any acceleration of such obligations 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.
SECTION X.2 Severability.
In case any provision of this Article X 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 X.3 Limitation of Liability.
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 any 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 its Subsidiary Guarantee shall be
limited to the maximum amount as will, after giving effect to all other
contingent and fixed liabilities of such Subsidiary Guarantor and after giving
effect to any collections from or payments made by or on behalf of any of the
other Subsidiary Guarantors in respect of the obligations of such other
Subsidiary Guarantors under the other Subsidiary Guarantees or pursuant to
Section 10.05, result in the obligations of such Subsidiary Guarantor under its
Subsidiary Guarantee not constituting such fraudulent transfer or conveyance.
SECTION X.4 Subsidiary Guarantors May
Consolidate, etc., on Certain Terms.
(a) Nothing contained in this Indenture or in the Securities
shall prevent any consolidation or merger of a Subsidiary Guarantor with or into
an Issuer or another Subsidiary Guarantor or shall prevent any sale of assets or
conveyance of the property of a Subsidiary Guarantor as an entirety or
substantially as an entirety, to an Issuer or another Subsidiary Guarantor. Upon
any such consolidation, merger, sale or conveyance, the Subsidiary Guarantee
given by such Subsidiary Guarantor shall no longer have any force or effect.
(b) Upon the sale or disposition as an entirety (whether by
merger, stock purchase, asset sale or otherwise) of a Subsidiary Guarantor (or
all or substantially all its assets) to a Person that is not a Subsidiary of the
Company and which sale or disposition is otherwise in compliance with Section
4.17 and the other terms of this Indenture, such Subsidiary Guarantor shall be
deemed released from all obligations under this Article X without any further
action required on the part of the Trustee or any Holder.
The Trustee shall deliver an appropriate instrument evidencing
such release upon receipt of a request by the Issuers accompanied by Officers'
Certificates and Opinions of Counsel certifying as to the compliance with this
Section 10.04. Any Subsidiary Guarantor not so released remains liable for the
full amount of principal of and interest on the Securities as provided in this
Article X.
SECTION X.5 Contribution.
In order to provide for just and equitable contribution among
the Subsidiary Guarantors, the Subsidiary Guarantors agree, inter se, that in
the event any payment or distribution is made by any Subsidiary Guarantor (a
"Funding Guarantor") under any of the Subsidiary Guarantees, such Funding
Guarantor shall be entitled to a contribution from all other Subsidiary
Guarantors in a pro rata amount based on the Adjusted Net Assets (as defined
below) of each of the Subsidiary Guarantors (including the Funding Guarantor)
for all payments, damages and expenses incurred by that Funding Guarantor in
discharging the Issuers' obligations with respect to the Securities or any
obligations of any of the other Subsidiary Guarantors with respect to any of the
Subsidiary Guarantees. "Adjusted Net Assets" of any Person at any date shall
mean the lesser of the amount by which (x) the fair value of the property of
such Person exceeds the total amount of liabilities, including, without
limitation, contingent liabilities (after giving effect to all other fixed and
contingent liabilities incurred or assumed on such date), but excluding
liabilities under a Subsidiary Guarantee of such Person at such date and (y) the
present fair salable value of the assets of such Person at such date exceeds the
amount that will be required to pay the probable liability of such Person on its
debts (after giving effect to all other fixed and contingent liabilities
incurred or assumed on such date), excluding debt in respect of the Subsidiary
Guarantee of such Person, as they become absolute and matured.
SECTION X.6 Waiver of Subrogation.
Until all Obligations under each of the Subsidiary Guarantees,
the Securities and this Indenture are paid in full, each of the Subsidiary
Guarantors hereby irrevocably waives any claims or other rights that it may now
or hereafter acquire against the Issuers that arise from the existence, payment,
performance or enforcement of its obligations under its Subsidiary Guarantee and
this Indenture, including, without limitation, any right of subrogation,
reimbursement, exoneration, indemnification and any right to participate in any
claim or remedy of any Holder of Securities against the Issuers, whether or not
such claim, remedy or right arises in equity, or under contract, statute or
common law, including, without limitation, the right to take or receive from the
Issuers, directly or indirectly, in cash or other property or by set-off or in
any other manner, payment or security on account of such claim or other rights.
If any amount shall be paid to any of the Guarantors in violation of the
preceding sentence and the Securities shall not have been paid in full, such
amount shall have been deemed to have been paid to such Person for the benefit
of, and held in trust for the benefit of, the Holders of the Securities, and
shall, forthwith be paid to the Trustee for the benefit of such Holders to be
credited and applied upon the Securities, whether matured or unmatured, in
accordance with the terms of this Indenture. Each of the Subsidiary Guarantors
acknowledges that it will receive direct and indirect benefits from the
financing arrangements contemplated by this Indenture and that the waiver set
forth in this Section 10.06 is knowingly made in contemplation of such benefits.
SECTION X.7 Execution of Guarantee.
To evidence their guarantee to the Securityholders set forth
in this Article X, each Subsidiary Guarantor hereby agrees to execute a
Subsidiary Guarantee in substantially the form of Exhibit B to this Indenture,
which shall be endorsed on each Security 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 Security a notation of a
Subsidiary Guarantee. A Subsidiary Guarantee shall be signed on behalf of a
Subsidiary Guarantor by two Officers, or an Officer and an Assistant Secretary,
or one Officer shall sign and one Officer or an Assistant Secretary (each of
whom shall, in each case, have been duly authorized by all requisite corporate
or partnership actions) shall attest to the Subsidiary Guarantee prior to the
authentication of the Security on which it is endorsed, and the delivery of such
Security by the Trustee, after the authentication thereof hereunder, shall
constitute due delivery of the Subsidiary Guarantee on behalf of such Subsidiary
Guarantor. Such signatures upon a Subsidiary Guarantee may be by manual or
facsimile signature of such officers and may be imprinted or otherwise
reproduced on the Subsidiary Guarantee and in case any such officer who shall
have signed a Subsidiary Guarantee shall cease to be such officer before the
Security on which the Subsidiary Guarantee is endorsed shall have been
authenticated and delivered by the Trustee or disposed of by the Issuers, such
Security 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 X.8 Waiver of Stay, Extension or Usury
Laws.
Each Subsidiary Guarantor, if any, 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 or
extension law or any usury law or other law that would prohibit or forgive such
Subsidiary Guarantor from performing a Subsidiary Guarantee as contemplated
herein, wherever enacted, now or at any time hereafter in force, or which may
affect the covenants or the performance of this Indenture; and (to the extent
that it may lawfully do so) each Subsidiary Guarantor, if any, hereby expressly
waives all benefit or advantage of any such law, and covenants that it will not
hinder, delay or impede the execution of any power herein granted to the
Trustee, but will suffer and permit the execution of every such power as though
no such law had been enacted.
ARTICLE XI
MISCELLANEOUS
SECTION XI.1 Trust Indenture Act Controls.
If and to the extent that any provision of this Indenture
limits, qualifies or conflicts with the duties imposed by, or with another
provision (an "incorporated provision") included in this Indenture by operation
of, Sections 310 to 318, inclusive, of the TIA, such imposed duties or
incorporated provision shall control.
<PAGE>
SECTION XI.2 Notices.
Any notice or communication shall be deemed given if in
writing and delivered in Person or mailed by first-class mail, addressed as
follows, and received by the addressee:
(a) if to the Issuers or any Subsidiary Guarantor:
Sprint Spectrum L.P.
4900 Main Street
12th Floor
Kansas City, Missouri 64112
Attention: Joseph M. Gensheimer, Esq.
(b) if to the Trustee:
The Bank of New York
101 Barclay Street
Floor 21 West
New York, New York 10286
Attention: Corporate Trust Trustee
Administration
The Issuers or the Trustee by notice to the other may
designate additional or different addresses for subsequent notices or
communications.
Any notice or communication mailed to a Holder of a Security,
including any notice delivered in connection with TIA ss. 310(b), TIA ss.
313(c), TIA ss. 314(a) and TIA ss. 315(b), shall be mailed to him, first-class
postage prepaid, at his address as it appears on the registration books of the
Registrar and shall be deemed given to him if so mailed within the time
prescribed.
Failure to mail a notice or communication to a Securityholder
or any defect in it shall not affect its sufficiency with respect to other
Securityholders. Except for a notice to the Trustee, which is deemed given only
when received, if a notice or communication is mailed in the manner provided
above, it is duly given, whether or not the addressee receives it.
SECTION XI.3 Communications by Holders with Other
Holders.
Securityholders may communicate pursuant to TIA ss. 312(b)
with other Securityholders with respect to their rights under this Indenture or
the Securities. The Issuers, the Trustee, the Registrar and any other Person
shall have the protection of TIA ss. 312(c).
SECTION XI.4 Certificate and Opinion of Counsel
as to Conditions Precedent.
Upon any request or application by the Issuers or any
Subsidiary Guarantor to the Trustee to take any action under this Indenture, the
Issuers or any Subsidiary Guarantor, as the case may be, shall furnish to the
Trustee (a) Officers' Certificates in form and substance satisfactory to the
Trustee stating that, in the opinion of the signers, all conditions precedent,
if any, provided for in this Indenture relating to the proposed action have been
complied with, (b) Opinions of Counsel in form and substance satisfactory to the
Trustee stating that, in the opinion of such counsel, all such conditions have
been complied with and (c) where applicable, a certificate or opinion by an
accountant that complies with TIA ss. 314(c).
<PAGE>
SECTION XI.5 Statements Required in Certificate
and Opinion of Counsel.
Each certificate and Opinion of Counsel with respect to
compliance with a condition or covenant provided for in this Indenture shall
include:
(a) a statement that the Person making such certifi-
cate or Opinion of Counsel has read such covenant or condition;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements contained in
such certificate or Opinion of Counsel are based;
(c) 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
(d) a statement as to whether or not, in the opinion of
such Person, such condition or covenant has been complied with.
SECTION XI.6 Rules by Trustee, Paying Agent,
Registrar.
The Trustee may make reasonable rules in accordance with the
Trustee's customary practices for action by or at a meeting of Securityholders.
The Paying Agent or Registrar may make reasonable rules for its functions.
SECTION XI.7 Legal Holidays.
If a payment date is a Legal Holiday at a place of payment,
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 XI.8 Governing Law.
The internal laws of the State of New York shall govern this
Indenture, the Securities and any Subsidiary Guarantees without regard to
principles of conflict of laws.
SECTION XI.9 No Recourse Against Others.
A trustee, director, officer, employee, stockholder, partner,
organizer or incorporator, as such, of the Issuers or a Subsidiary Guarantor
(including Sprint Spectrum Holding Company, L.P. and the Partners (and the
Affiliates of the Partners)) shall not have any liability for any obligations of
the Issuers or a Subsidiary Guarantor under the Securities, this Indenture or
any Subsidiary Guarantee or for any claim based on, in respect of or by reason
of such obligations or their creation. Each Securityholder by accepting a
Security waives and releases all such liability.
SECTION XI.10 Successors.
All agreements of the Issuers and any Subsidiary Guarantor in
this Indenture, the Securities and any Subsidiary Guarantees shall bind their
respective successors. All agreements of the Trustee in this Indenture shall
bind its successor.
SECTION XI.11 Duplicate Originals.
The parties may sign any number of copies of this Indenture.
Each signed copy shall be an original, but all of them together represent the
same agreement.
SECTION XI.12 Joint and Several Obligations.
Each of the Issuers shall have joint and several liability in
respect of all obligations hereunder. Each Issuer hereby acknowledges that this
Agreement is the independent and several obligation of each of the Issuers and
may be enforced against either Issuer separately, whether or not enforcement of
any right or remedy hereunder has been sought against any other party hereto.
Each Issuer hereby expressly waives, with respect to any of the amounts owing
hereunder by any other Issuer in respect of the obligations (collectively, the
"Other Obligations"), diligence, presentment, demand of payment, protest and all
notices whatsoever, and any requirement that any other party exhaust any right,
power or remedy or proceed against such other Issuer under this Indenture or
against any other Person under any other guarantee of, or security for, any of
such Other Obligations.
SECTION XI.13 Separability.
In case any provision in this Indenture, the Securities or in
any Subsidiary Guarantee 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, and a Holder shall have no claim
therefor against any party hereto.
SECTION XI.14 Table of Contents, Headings, Etc.
The table of contents, cross-reference sheet and headings of
the Articles and Sections of this Indenture have been inserted for convenience
of reference only, and are not to be considered a part hereof, and shall in no
way modify or restrict any of the terms or provisions hereof.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed as of the date first written above.
SPRINT SPECTRUM L.P., as
Co-Issuer
By: Sprint Spectrum Holding
Company, L.P., its
General Partner
By: /s/ Robert M. Neumeister, Jr.
Name: Robert M. Neumeister, Jr.
Title: Chief Financial Officer
SPRINT SPECTRUM FINANCE
CORPORATION, as Co-Issuer
By: /s/ Robert M. Neumeister, Jr.
Name: Robert M. Neumeister, Jr.
Title: Chief Financial Officer
THE BANK OF NEW YORK,
as Trustee
By: /s/ Paul J. Schmalzel
Name: Paul J. Schmalzel
Title: Assistant Treasurer
<PAGE>
Exhibit A
SPRINT SPECTRUM L.P.
SPRINT SPECTRUM FINANCE CORPORATION
This Security is issued with original issue discount for purposes of Section
1271 et seq. of the Internal Revenue Code. For each $1,000 of principal amount
of this Security, the issue price is $546.87 and the amount of original issue
discount is $453.13. The issue date of the this Security is August 23, 1996 and
the yield to maturity is 12-1/2%.
Cusip No.: 85207FAB4
No. $
12 1/2% SENIOR DISCOUNT NOTE DUE 2006
Each of SPRINT SPECTRUM L.P. and SPRINT SPECTRUM FINANCE CORPORATION
promises to pay to Cede & Co. or registered assigns upon surrender hereof the
principal sum of Dollars on August 15, 2006.
Interest Payment Dates: February 15, August 15 and at stated maturity.
By: Sprint Spectrum L.P.
By: Sprint Spectrum Holding
Company, L.P., its
General Partner
By:
Name:
Title:
By:
Name:
Title:
<PAGE>
By: Sprint Spectrum Finance
Corporation
By:
Name:
Title:
By:
Name:
Title:
Dated:
<PAGE>
Certificate of Authentication
This is one of the Senior Discount Notes due 2006 referred to in the
within-mentioned Indenture.
THE BANK OF NEW YORK, as Trustee
By:
Authorized Signatory
<PAGE>
(REVERSE OF SECURITY)
SPRINT SPECTRUM L.P.
SPRINT SPECTRUM FINANCE CORPORATION
12 1/2% SENIOR DISCOUNT NOTE DUE 2006
<PAGE>
1. Interest. SPRINT SPECTRUM L.P., a Delaware limited partnership (the
"Company"), and SPRINT SPECTRUM FINANCE CORPORATION, a Delaware corporation
("FinCo" and, together with the Company, the "Issuers"), promise to pay to
the registered holder of this Security, until the principal hereof is paid
or duly provided for, interest on the principal amount set forth on the
face of this Security at a rate of 12 1/2% per annum. Interest on the
Securities will accrue from and including the most recent date to which
interest has been paid or duly provided for or, if no interest has been
paid or duly provided for, from and including August 15, 2001 through but
excluding the date on which interest is paid or duly provided for. Interest
shall be payable in arrears on each February 15 and August 15 and at stated
maturity, commencing February 15, 2002. Interest will be computed on the
basis of a 360-day year of twelve 30-day months.
The principal of this Security shall not bear or accrue interest until
August 15, 2001, except in the case of a default in payment of principal
and/or premium, if any, upon acceleration, redemption or purchase and, in
such case, the overdue principal and any overdue premium shall bear
interest at the rate of 12 1/2% per annum (compounded semiannually on each
February 15 and August 15) (to the extent that the payment of such interest
shall be legally enforceable), from the dates such amounts are due until
they are paid or duly provided for. To the extent, but only to the extent,
interest on amounts in default constituting original issue discount prior
to August 15, 2001 is not permitted by law, original issue discount shall
continue to accrete until paid or duly provided for. On or after August 15,
2001, interest on overdue principal and premium, if any, and, to the extent
permitted by law, on overdue installments of interest will accrue, until
the principal and premium, if any, is paid or duly provided for, at the
rate of 12 1/2% per annum. Interest on any overdue principal or premium
shall be payable on demand.
2. Method of Payment. The Issuers will pay interest on the Securities
(except defaulted interest) to the registered Holder of this Security.
Holders must surrender Securities to a Paying Agent to collect principal
payments. The Issuers will pay principal, premium, if any, and interest in
money of the United States that at the time of payment is legal tender for
the payment of public and private debts ("U.S. Legal Tender"). However, the
Issuers may pay principal, premium, if any, and interest by wire transfer
of Federal funds or interest by check payable in U.S. Legal Tender.
3. Paying Agent. Initially, The Bank of New York (the "Trustee") will
act as a Paying Agent. The Issuers may change any Paying Agent without
notice. Neither the Issuers nor any of their Affiliates may act as Paying
Agent.
4. Indenture. The Issuers issued the Securities under an Indenture
dated as of August 15, 1996 (the "Indenture") among the Issuers and the
Trustee. This Security is one of an issue of Securities of the Issuers
issued, or to be issued, under the Indenture. Capitalized terms herein are
used as defined in the Indenture unless otherwise defined herein. The terms
of the Securities 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 amended from time to time. The Securities are
subject to all such terms, and Holders are referred to the Indenture and
such Act for a statement of them. The Securities are senior obligations of
the Issuers limited in aggregate principal amount at maturity to
$500,000,000.
5. Subsidiary Guarantees. This Security may after the date hereof be
entitled to certain Subsidiary Guarantees made for the benefit of the
Holders pursuant to Section 4.11 of the Indenture.
6. Mandatory Accreted Interest Redemption. On August 15, 2001, the
Issuers are required to redeem an amount equal to $384.772 per $1,000
principal amount at maturity of each Security outstanding on a pro rata
basis at a redemption price of 100% of the principal amount at maturity of
the Securities so redeemed. If the redemption of a Security pursuant to
this Paragraph 6 would result in an outstanding Security in a denomination
(i) of less than $1,000 principal amount at maturity or (ii) other than an
integral multiple of $1,000 principal amount at maturity, such Security
will be redeemed (a) in whole, in the case of clause (i), or (b) by an
additional amount so that such Security will be in a denomination of an
integral multiple of $1,000 principal amount at maturity, in the case of
clause (ii).
7. Optional Redemption. The Issuers, at their option, may redeem all
or any of the Securities, in whole or in part, at any time on or after
August 15, 2001, at the redemption prices (expressed as percentages of
principal amount at maturity) set forth below, plus accrued and unpaid
interest, if any, to the redemption date, if redeemed during the 12-month
period beginning on August 15 of the years indicated below:
Year Redemption Price
2001............................................... 110.00%
2002............................................... 106.50%
2003............................................... 103.25%
2004 and thereafter................................ 100.00%
8. Redemption Upon Public Equity Offering. Prior to August 15, 1999,
the Issuers may redeem up to 35% of the originally issued principal amount
at maturity of the Securities at a redemption price equal to 112.5% of the
Accreted Value at the redemption date of the Securities so redeemed with
the net proceeds of one or more Public Equity Offerings of Common Equity
Interests of (i) the Company, (ii) Holdings or (iii) a Special Purpose
Corporation, in any case, resulting in gross proceeds to (or contributed to
the Company in respect of Common Equity Interests) of at least $100 million
in the aggregate; provided that at least 65% of the originally issued
principal amount at maturity of the Securities would remain outstanding
immediately after giving effect to such redemption.
9. Notice of Redemption. Notice of redemption will be mailed at least
30 days but not more than 60 days before the redemption date to each Holder
of Securities to be redeemed. On and after the Redemption Date, unless the
Issuers default in making the redemption payment, Accreted Value ceases to
accrete and interest ceases to accrue on Securities or portions thereof
called for redemption.
10. Offers To Purchase. The Indenture provides that upon the
occurrence of a Change of Control or an Asset Sale and subject to further
limitations contained therein, the Issuers shall make an offer to purchase
outstanding Securities in accordance with the procedures set forth in the
Indenture.
11. Denominations. The Securities are in registered form without
coupons and only in denominations of $1,000 of principal amount at maturity
and integral multiples thereof.
12. Persons Deemed Owners. The registered Holder of this Security may
be treated as the owner of this Security for all purposes.
13. Unclaimed Money. If money for the payment of principal or interest
remains unclaimed for one year, the Trustee or Paying Agent will pay the
money back to the Issuers or a Subsidiary Guarantor, as the case may be, at
its request. After that, Holders entitled to the money must look to the
Issuers or a Subsidiary Guarantor for payment as general creditors unless
an "abandoned property" law designates another Person.
14. Amendment, Supplement, Waiver, Etc. The Issuers, any Subsidiary
Guarantors and the Trustee (if a party thereto) may, without the consent of
the Holders of any outstanding Securities, amend, waive or supplement the
Indenture, the Securities or any Subsidiary Guarantee for certain specified
purposes, including, among other things, curing ambiguities, defects or
inconsistencies, maintaining the qualification of the Indenture under the
Trust Indenture Act of 1939, as amended, and making any change that does
not adversely affect the rights of any Holder. Other amendments and
modifications of the Indenture, the Securities or any Subsidiary Guarantee
may be made by the Issuers, any Subsidiary Guarantor and the Trustee with
the consent of the Holders of not less than a majority of the aggregate
principal amount at maturity of the outstanding Securities, subject to
certain exceptions requiring the consent of the Holders of the particular
Securities to be affected.
15. Successor Corporation. When a successor corporation or
partnership, as the case may be, assumes all the obligations of its
predecessor under the Securities or a Subsidiary Guarantee, as the case may
be, and the Indenture and the transaction complies with the terms of
Article V of the Indenture, the predecessor corporation or partnership, as
the case may be, will, except as provided in Article V, be released from
those obligations.
16. Restrictive Covenants. The Indenture contains certain covenants
that, among other things, limit the ability of the Company and the
Restricted Subsidiaries to make restricted payments, to incur indebtedness,
to create liens, to sell assets, to permit restrictions on dividends and
other payments by Restricted Subsidiaries to the Company, to consolidate,
merge or sell all or substantially all of its assets, to engage in
transactions with affiliates or to engage in certain businesses. The
limitations are subject to a number of important qualifications and
exceptions. The Company must annually report to the Trustee on compliance
with such limitations.
17. Defaults and Remedies. Events of Default are set forth in the
Indenture. Subject to certain limitations in the Indenture, if an Event of
Default (other than an Event of Default specified in Section 6.1(a)(ix) or
(x) of the Indenture with respect to an Issuer) occurs and is continuing,
then the Holders of not less than 25% in aggregate principal amount at
maturity of the outstanding Securities may, and the Trustee upon the
request of the Holders of not less than 25% in aggregate principal amount
at maturity of the outstanding Securities shall, declare the Default Amount
of and any accrued interest on all of the Securities to be due and payable
immediately. If an Event of Default specified in Section 6.1(a)(ix) or (x)
of the Indenture occurs with respect to an Issuer, the Default Amount shall
ipso facto become and be immediately due and payable without any
declaration or other act on the part of the Trustee or any Holder. Holders
may not enforce the Indenture, the Securities or any Subsidiary Guarantee
except as provided in the Indenture. The Trustee may require indemnity
satisfactory to it before it enforces the Indenture, the Securities or any
Subsidiary Guarantee. Subject to certain limitations, Holders of a majority
in principal amount at maturity of the then outstanding Securities may
direct the Trustee in its exercise of any trust or power. The Trustee may
withhold from Holders notice of any continuing default (except a default in
payment of the Default Amount, principal or interest) if it determines that
withholding notice is in their interests.
18. Trustee Dealings with Issuers. The Trustee, in its individual or
any other capacity, may make loans to, accept deposits from, and perform
services for the Issuers or their Affiliates, and may otherwise deal with
the Issuers or their Affiliates, as if it were not Trustee.
19. No Recourse Against Others. A director, officer, employee,
partner, stockholder or incorporator, as such, of the Issuers or any
Subsidiary Guarantor (including Holdings and the Partners (and the
Affiliates of the Partners)) shall not have any liability for any
obligations of the Issuers or any such Subsidiary Guarantor under the
Indenture, the Securities or any Subsidiary Guarantee or for any claim
based on, in respect of, or by reason of, such obligations or their
creation. Each Holder by accepting a Security waives and releases all such
liability. The waiver and release are part of the consideration for the
issue of the Securities and any Subsidiary Guarantee.
20. Discharge. The Issuers' and any Subsidiary Guarantor's obligations
pursuant to the Indenture will be discharged, except for obligations
pursuant to certain sections thereof, subject to the terms of the
Indenture, upon the payment of all the Securities or upon the irrevocable
deposit with the Trustee of U.S. Legal Tender or U.S. Government
Obligations sufficient to pay when due principal of and interest on the
Securities to maturity or redemption, as the case may be.
21. Authentication. This Security shall not be valid until the Trustee
signs the certificate of authentication on the other side of this Security.
The internal laws of the State of New York shall govern this Security
without regard to principles of conflict of laws.
The Company will furnish to any Holder upon written request and
without charge a copy of the Indenture. Requests may be made to:
SPRINT SPECTRUM, L.P.
4900 Main Street
12th Floor
Kansas City, Missouri 64112
Attention: Joseph M. Gensheimer, Esq.
<PAGE>
ASSIGNMENT FORM
If you the Holder want to assign this Security, fill in the form below and have
your signature guaranteed:
I or we assign and transfer this Security to
(Insert assignee's social security or tax ID number) __________
(Print or type assignee's name, address and zip code)
and irrevocably appoint agent to transfer this Security on the books of the
Issuers. The agent may substitute another to act for him.
Date:______________ Your Signature:
(Sign exactly as your name appears on the
other side of this Security)
Signature Guarantee:
<PAGE>
OPTION OF HOLDER TO ELECT PURCHASE
If you wish to have this Security purchased by the Issuers pursuant to
Section 4.13 or 4.15 of the Indenture, check the Box: [ ]
If you wish to have a portion of this Security purchased by the Issuers
pursuant to Section 4.13 or 4.15 of the Indenture, state the amount:
$------------
Date: ________________ Your Signature: ____________________
Signature Guarantee: _______________________
<PAGE>
EXHIBIT B
SUBSIDIARY GUARANTEE
The undersigned hereby unconditionally guarantees on a senior
unsecured basis to the Holder of this Security the payments of principal of,
premium, if any, and interest on this Security in the amounts and at the time
when due and interest on the overdue principal, premium, if any, and interest,
if any, of this Security, if lawful, and the payment or performance of all other
obligations of the Issuers under the Indenture or the Securities, to the Holder
of this Security and the Trustee, all in accordance with and subject to the
terms and limitations of this Security, Article X of the Indenture and this
Subsidiary Guarantee. This Subsidiary Guarantee will become effective in
accordance with Article X of the Indenture and its terms shall be evidenced
therein. The validity and enforceability of any Subsidiary Guarantee shall not
be affected by the fact that it is not affixed to any particular Security.
The obligations of the undersigned to the Holders of
Securities and to the Trustee pursuant to this Subsidiary Guarantee and the
Indenture are expressly set forth in Article X of the Indenture and reference is
hereby made to the Indenture for the precise terms of this Subsidiary Guarantee
and all of the other provisions of the Indenture to which this Subsidiary
Guarantee relates.
The internal laws of the State of New York shall govern this
Subsidiary Guarantee without regard to principles of conflict of laws.
[ ]
By:
Name:
Title:
By:
Name:
Title:
<TABLE> <S> <C>
<ARTICLE> 5
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> DEC-31-1996
<PERIOD-END> SEP-30-1996
<CASH> 0
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0
0
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