As filed with the Securities and Exchange Commission on October 20, 1999
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
AMERICAN TOWER CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 65-0723837
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
116 Huntington Avenue, Boston, Massachusetts 02116
(Address, including zip code, and telephone number, including area code,
of registrant's principal executive offices)
STEVEN B. DODGE
American Tower Corporation
116 Huntington Avenue
Boston, Massachusetts 02116
(617) 375-7500
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
Copy to:
NORMAN A. BIKALES, ESQ.
Sullivan & Worcester LLP
One Post Office Square
Boston, Massachusetts 02109
(617) 338-2800
Approximate date of commencement of proposed sale to the public: From time to
time after the effective date of this registration statement as determined in
light of market conditions and other factors.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the box. |_|
If any of the securities being registered on this form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. |X|
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. |_|
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. |_|
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. |_|
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CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Title of Each Class of Amount Maximum Maximum Amount of
Securities to be Registered(1) to be Offering Price Aggregate Registration Fee
Registered Per Security(1) Offering Price(1)
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<S> <C> <C> <C> <C>
6.25% Convertible Notes due 2009............. $300,000,000 100% $300,000,000 $83,400
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2.25% Convertible Notes due 2009............. $425,500,000 70.52% $300,062,600 $83,418
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Class A Common Stock, par value $.01 per share 24,797,690(2) N/A N/A N/A(3)
=================================================================================================================================
<FN>
(Footnotes on next page)
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(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457 under the Securities Act of 1933.
(2) Plus such additional indeterminate number of shares of Class A Common
Stock as may become issuable upon conversion of the 6.25% Notes and the
2.25% Notes being registered hereunder by reason of adjustment of the
conversion price.
(3) Pursuant to Rule 457(i) under the Securities Act of 1933 there is no
filing fee with respect to the shares of Class A Common Stock issuable
upon conversion of the 6.25% Notes or 2.25% Notes because no additional
consideration will be received in connection with the exercise of the
conversion privilege.
</FN>
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The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant shall
file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until this Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
<PAGE>
We will amend and complete the information in this prospectus. Although we are
permitted by U.S. federal securities laws to offer these securities using this
prospectus, we may not sell them or accept your offer to buy them until the
documentation filed with the SEC relating to these securities has been declared
effective by the SEC. This prospectus is not an offer to sell these securities
or our solicitation of your offer to buy these securities in any jurisdiction
where that would not be permitted or legal.
SUBJECT TO COMPLETION, DATED October 20, 1999
PROSPECTUS
LOGO
$300,000,000 $425,500,000
6.25% Convertible Notes Due 2009 2.25% Convertible Notes Due 2009
This prospectus relates to:
o $300,000,000 principal amount of 6.25% convertible notes due 2009,
o $425,500,000 principal amount at maturity of 2.25% convertible notes
due 2009, and
o the shares of Class A common stock issuable upon conversion of the
notes.
The notes and the Class A common stock that are offered for resale in this
prospectus are offered for the accounts of their holders. The notes were
initially acquired from us in October 1999 in connection with a private offering
by a group of investment banking firms who resold the notes pursuant to Rule
144A.
The 6.25% notes are convertible at any time prior to maturity into shares
of our Class A common stock at a conversion price of $24.40 per share of Class A
common stock. This is the equivalent to a conversion rate of 40.9836 shares of
Class A common stock for each $1,000 principal amount of the 6.25% notes. We
will pay interest on the 6.25% notes on April 15 and October 15 of each year,
commencing on April 15, 2000.
The 2.25% notes are convertible at any time prior to maturity into shares
of our Class A common stock at a conversion price of $24.00 per share of Class A
common stock, based on the issue price of 70.52% of the principal amount at
maturity. This is the equivalent to a conversion rate of 29.3833 shares of Class
A common stock for each $1,000 principal amount at maturity of the 2.25% notes.
We will pay interest on the 2.25% notes on April 15 and October 15 of each year,
commencing on April 15, 2000.
We may redeem the 6.25% notes on or after October 22, 2002. You may require
us to repurchase the 6.25% notes at a price of $1,000 for each 6.25% note on
October 22, 2006. We may redeem the 2.25% notes on or after October 22, 2003.
You may require us to repurchase the 2.25% notes at a price of $802.93 for each
2.25% note on October 22, 2003. In the case of a repurchase of notes, we have
the right to issue shares of Class A common stock, rather than to pay cash. In
addition, you may require us to repurchase the notes of each series upon a
change in control.
Our Class A common stock is listed on the New York Stock Exchange under the
symbol "AMT." The last reported sale price of the Class A common stock on the
New York Stock Exchange on October 19, 1999 was $18.0625 per share.
Investing in the notes involves risks. See "Risk Factors" beginning on page
12.
We will not receive any of the proceeds from sales of the notes or the
shares by the selling securityholders.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or passed upon the
adequacy or accuracy of this prospectus. Any representation to the contrary is a
criminal offense.
The date of this Prospectus is , 1999.
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TABLE OF CONTENTS
<S> <C> <C> <C>
Summary...............................................1 Description of Capital Stock........................39
The Notes.............................................6 Selling Securityholders.............................42
Selected Financial Data...............................9 Certain Federal Income Tax Consequences.............42
Risk Factors.........................................12 Registration Rights Agreement.......................51
Market Prices and Dividend Policy....................18 Plan of Distribution................................52
Unaudited Pro forma Condensed Legal Matters.......................................54
Consolidated Financial Statements..................19 Experts.............................................54
Description of the Notes.............................29 Where You Can Find More Information.................55
</TABLE>
You should rely only on the information contained or incorporated by
reference in this prospectus. We have not authorized anyone to provide you with
information that is different. This prospectus may only be used where it is
legal to sell these securities. The information in this prospectus may only be
accurate on the date of this prospectus.
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SUMMARY
This summary highlights selected information about us, including our
pending mergers, acquisitions and other transactions. All information in this
prospectus gives effect to pending transactions, unless the context otherwise
indicates. This summary is not complete and may not contain all of the
information that you should consider before investing in the notes. All selling
securityholders must deliver a prospectus to purchasers at or prior to the time
of any sale of the notes or Class A common stock issuable upon conversion of the
notes. You should carefully read this entire prospectus, including the "Risk
Factors" section beginning on page 12 and the financial statements, which are
incorporated by reference from our 1998 Annual Report, March 1999 Quarterly
Report, June 1999 Quarterly Report and the Current Report on Form 8-K, dated
September 17, 1999. We refer to those reports together as the "Historical
Financial Statements."
AMERICAN TOWER
We are a wireless communications and broadcast infrastructure company
operating in three business segments.
o We operate a leading network of communications towers and are the
largest independent operator of broadcast towers in the United
States.
o We provide comprehensive network development services for wireless
service providers and broadcasters.
o We operate a leading teleport business, which transmits video,
voice, data and Internet communications worldwide.
Towers. We believe we are the largest independent owner, operator and
developer of wireless communications towers in the United States. Assuming
consummation of all of the pending transactions, we operate a national network
of more than 9,400 multi-user sites, 8,300 of which are owned or leased towers
and 1,100 of which are managed sites. Our network spans 48 states and the
District of Columbia, with tower clusters in 43 of the 50 largest U.S.
metropolitan statistical areas. Our primary business is the leasing of antenna
space to a diverse range of wireless communications industries, including PCS,
cellular, ESMR, SMR, paging and fixed microwave. Our wireless customers include
AirTouch, Alltell, AT&T, AT&T Wireless Services, Bell Atlantic Mobile,
BellSouth, GTE Mobilnet, Nextel, Omnipoint, PacBell, PageNet, PowerTel, PrimeCo
PCS, Southwestern Bell, Sprint PCS, Teligent, Western Wireless and WinStar.
We believe we are the largest independent operator of broadcast towers with
242 sites in the United States and approximately 200 sites in Mexico. We serve
most of the major radio and television broadcasters, including ABC, AMFM, CBS,
Clear Channel, CNN, Cox, Fox, Infinity, NBC, Paxson, Paramount, Sinclair,
Tribune and Univision.
Network Development Services. We are a leading provider of network
development services and components for both wireless service providers and
broadcasters. We offer full turnkey network development solutions to our
customers, consisting of network design, site acquisition, zoning and other
regulatory approvals, construction management, tower construction and antenna
installation. We also manufacture wireless infrastructure components. We provide
site acquisition services to most of the major wireless service providers and
have constructed or are constructing towers on a build-to-suit basis for
wireless and broadcast companies such as AirTouch, AT&T affiliates, AT&T
Wireless Services, Bell South, Nextel, Omnipoint, Paxson, PrimeCo PCS, Sinclair
and Southwestern Bell.
We have performed network development services for other companies on more
than 10,000 sites, including more than 2,150 sites in 1998. In 1998, we embarked
on a major construction program with an emphasis on build-to-suit projects. We
constructed more than 800 towers, including more than 500 towers for our own
account, at an aggregate cost of approximately $108.0 million. Our 1999 and 2000
business plans call for construction of more
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than 1,250 towers annually, including more than 1,000 towers in each year for
our own account at an estimated annual cost of between $180.0 million and $200.0
million. These figures do not include the construction of broadcast towers.
Teleports. We are a leading video, voice, data and Internet transmission
company, providing services worldwide. We own and operate approximately 110
satellite antennas in various locations across the United States, with major
facilities near New York, Washington, D.C., Dallas and San Francisco. Our
teleports are used by television networks, broadcasters, cable programmers and
many of the leading voice, data and Internet providers. Our customers include
ABC, British Telecom, CBS, CNN, Deutsche Telekom, Fox, MCI Worldcom, TCI,
Telefonica and Uunet.
For the year ended December 31, 1998, we had pro forma net revenues of
$273.1 million and EBITDA of $91.9 million. For the six months ended June 30,
1999, we had pro forma net revenues of $146.5 million and EBITDA of $52.5
million. This pro forma data includes the results of major acquisitions, but not
all of them.
We estimate that our three business segments accounted for the following
percentages of pro forma 1998 operating revenues:
o Towers--56%,
o Network development services--37%, and
o Teleports--7%.
We believe that site leasing activities generate the highest profit
margins. We also believe that leasing activities are likely to grow at a more
rapid rate than other segments of our business because of our pending
acquisitions and our build-to-suit and other construction activities. These
acquisitions and construction activities will increase significantly the number
of antenna sites available for leasing. The industry trend towards outsourcing
infrastructure needs may also result in a decline in our site acquisition and
construction activities for other companies.
We have a diversified base of more than 5,300 customers. Our largest
customer, AirTouch, accounted for approximately 25% of our pro forma annualized
August 1999 operating revenues. Our five largest customers accounted for
approximately 46% of those revenues. Annualized August 1999 revenues may not be
representative of historical revenues because revenues from service activities
are highly variable due to their transactional nature. For example, one
customer, Sprint PCS, accounted for approximately 11% of our pro forma operating
revenues for the six months ended June 30, 1999, principally as a result of
several site acquisition projects during that period.
We estimate that personal communications services ("PCS") accounted for
more than 28% of our pro forma annualized August 1999 operating revenues,
cellular accounted for approximately 16% of those revenues and paging accounted
for approximately 12% of those revenues. We believe that no other industry
sector accounted for as much as 10% of those revenues. We believe, however,
these industry sector percentages may not be indicative of what we will
experience in the future. The importance of the different sectors will probably
change because of the anticipated growth of PCS, cellular and ESMR, compared to
other wireless service providers. The relative contributions of the different
sectors will also be affected as major wireless service providers create
strategic alliances with independent operators, including in our case AirTouch
and AT&T. Finally, the percentage of operating revenues derived from PCS will
also be affected by the decline in our site acquisition and construction
activities for that sector, as providers continue to outsource those
requirements.
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Growth Strategy
We designed our growth strategy to create and then enhance our position as
a leader in each of our business segments. Our goals were:
o to create a national footprint of desirable communications towers in
all major markets in the United States,
o to establish the capacity to serve all of the infrastructure needs
of the wireless service and broadcast industries, and
o to create a leading teleport company with global reach.
We implemented our strategy through a combination of acquisitions and
construction. Acquisitions were pursued initially with independent tower
operators and other consolidators and more recently with major wireless service
providers selling their towers. This acquisition strategy also broadened the
scope of our network development services.
Our strategy has enabled us to create an organization with a depth of
personnel, computer and financial systems, sales and marketing, and engineering
and other technical expertise to take advantage of the growth in wireless
communications, digital television and the Internet. We believe we are well
positioned competitively for growth because we can meet the majority of
infrastructure requirements of wireless communications and digital television
and are playing an increasing role in addressing the Internet's infrastructure
needs. We will continue to pursue our growth strategy by:
o maximizing utilization of antenna sites through targeted sales and
marketing techniques,
o capitalizing on our ability to provide full turnkey network
development solutions principally through build-to-suit projects and
other tower construction activities, and
o pursuing strategic acquisitions, designed principally (a) to take
advantage of divestiture opportunities presented by wireless service
providers, (b) to facilitate entry into new geographic markets and
(c) to complement our construction program.
Recent Developments
Consummated Transactions
Since January 1, 1999, we have consummated more than 45 transactions
involving the acquisition of approximately 1,500 communications sites for an
aggregate purchase price of $945.8 million. This purchase price includes the
payment of approximately $352.2 million in cash, the issuance of 20.7 million
shares of Class A common stock, and the assumption of approximately $145.0
million of debt. The principal transactions were the following:
OmniAmerica merger. In February 1999, we consummated the OmniAmerica
merger. OmniAmerica owned or co-owned 223 towers in 24 states. OmniAmerica also
offered nationwide turnkey tower construction and installation services through
its Specialty Constructors subsidiary and manufactured wireless infrastructure
components. The aggregate consideration was $462.0 million, consisting of the
issuance of 16.8 million shares of Class A common stock and the assumption of
$96.6 million of debt. We also assumed certain Omni employee stock options that
were converted into options to purchase approximately 1.0 million shares of
Class A common stock.
TeleCom merger. In February 1999, we consummated the TeleCom merger.
TeleCom owned or co-owned approximately 271 towers and managed 121
revenue-generating sites in 27 states. The aggregate merger
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consideration was $194.6 million, consisting of the payment of $63.1 million in
cash, the issuance of 3.9 million shares of Class A common stock, and the
assumption of $48.4 million of debt.
Triton PCS acquisition. In September 1999, we acquired 187 wireless
communications towers from Triton PCS, the first member of the AT&T Wireless
Network, for $70.7 million in cash. We expect to consummate the purchase of the
remaining four communications towers for $1.5 million in cash in the fourth
quarter of 1999. The towers are located in Georgia, North Carolina, South
Carolina and Virginia. We will develop a minimum of 100 build-to-suit towers for
Triton PCS and provide turnkey services to Triton PCS for co-location sites
through 2001. The master lease agreement will provide Triton PCS with a 12-year
lease and three, five-year renewal terms for existing towers and future
build-to-suit towers. The initial rents are $1,200 per month, per antenna site,
subject to an annual 3% escalator.
Pending Transactions
We are a party to 15 pending transactions involving the acquisition of more
than 5,070 communications sites and a major teleport complex for an aggregate
purchase price of $1.7 billion. These transactions remain subject to regulatory
approvals in certain cases and other conditions. Our pending transactions
represent a recent shift in our acquisition focus from independent tower
operators and other consolidators to major wireless service providers seeking to
sell their towers. The principal transactions are the following:
AirTouch transaction. In August 1999, we agreed to lease on a long-term
basis 2,100 towers from AirTouch Communications. These towers are located in all
of AirTouch's major markets, other than Los Angeles and San Diego, including
Albuquerque, Atlanta, Cleveland, Denver, Detroit, Minneapolis, Omaha, Phoenix,
Portland, San Francisco and Seattle. At closing, we will pay AirTouch $800.0
million in cash and deliver a five-year warrant to purchase 3,000,000 shares of
Class A common stock at $22.00 per share.
Under the lease, we are entitled to all income generated from leasing space
on the towers and are responsible for the payment of all expenses of the towers,
including ground rent. AirTouch has reserved space on the towers for its
antennas, for which it will pay us a site maintenance charge equal to $1,500 per
month for each non-microwave reserved space and $385 per month for each
microwave reserved space.
At closing we will enter into an exclusive three-year build-to-suit
agreement with AirTouch. Under that agreement, we will have the right to build
all of AirTouch's towers in all of the markets covered by the lease. AirTouch
will enter into a separate master lease covering all towers constructed pursuant
to the build-to-suit agreement. AirTouch will lease space for a period of ten
years and will have the option to extend for five, five-year periods. The rent
will be $1,500 per month for each non-microwave antenna site and $385 per month
for each microwave antenna site, with annual increases of 3%. We expect this
build-to-suit agreement will produce 400 to 500 towers.
The transaction will be closed in stages, subject to the satisfaction of
customary conditions, beginning in the fourth quarter of this year or first
quarter of 2000.
AT&T transaction. In September 1999, we agreed to purchase 1,942 towers
from AT&T. These towers are located throughout the United States and were
constructed by AT&T for its microwave operations. We will enter into a
build-to-suit agreement with AT&T Wireless Services at the initial closing of
the transaction. The purchase price is $260.0 million in cash, subject to
adjustment if all towers are not purchased.
At the initial closing, AT&T will enter into a master lease agreement
covering those towers we will acquire on which it conducts microwave operations.
The lease will have an initial term of ten years, and AT&T will have five,
five-year renewal options. The annual base rent for the microwave operations is
approximately $1.0 million, payable in January of each lease year. In addition,
the rent will be adjusted based upon AT&T's use of the towers, except that any
downward adjustment can be used by AT&T as a credit only against future
additional rent and not
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against the base rent. AT&T currently uses 468 of these towers for its microwave
operations. We expect that as many as 50% of the towers may not be marketable,
at least in the near future, because of location.
AT&T Wireless Services uses and will lease from us space on 90 of the
towers to be purchased by us. At the initial closing, AT&T Wireless Services
will enter into an amendment to its existing master lease with us to lease those
sites at a monthly rent of $1,350 per site, increasing by 4% per year.
Our build-to-suit agreement with AT&T Wireless Services will require it to
present us 1,200 sites nationwide from which we will have the opportunity to
build 1,000 towers. There will be a separate master lease with AT&T Wireless
Services for the build-to-suit towers. The initial term will be ten years, and
AT&T will have three, five-year renewals. The rent for lease supplements entered
into in the initial year is $1,350 per month, per antenna site, increasing
annually by $50 per year for lease supplements entered into in subsequent years.
All rents will be subject to a 4% per annum escalator.
The transaction will be closed in stages, subject to the satisfaction of
customary conditions, including the receipt of all regulatory approvals,
beginning in the fourth quarter of this year or the first quarter of 2000.
UNIsite merger. In June 1999, we agreed to a merger with UNIsite. Based on
UNIsite owning 600 completed towers at closing, the purchase price will be
$205.0 million, $165.0 million of which is payable in cash and $40.0 million in
assumption of UNIsite's debt. The purchase price is subject to adjustment based
on (a) the net working capital and the long-term debt of UNIsite at closing and
(b) the number of completed towers. UNIsite's towers are located primarily in
the Northeast and Midwest. Subject to the satisfaction of customary closing
conditions, including approval under our credit facilities, the UNIsite merger
is expected to be consummated in the first quarter of 2000.
TV Azteca acquisition. In September 1999, we entered into a letter of
intent with TV Azteca, the owner of a major national television broadcast
network in Mexico, relating to approximately 200 broadcast towers. We have
agreed to loan up to $120.0 million to that company and to take over
responsibility for marketing and certain maintenance functions for the towers.
The 20-year loan, which may be extended for an additional 20 years, will bear
net interest at approximately 11% per annum. We will be entitled to receive 100%
of the revenues generated by third party leases on the towers during the term of
the loan. We have made an interim loan of $60.0 million. The interim loan will
mature on the earlier of March 17, 2000 or the closing of the transaction. The
closing is subject to certain conditions, including the execution and delivery
of definitive agreements and the receipt of all necessary regulatory approvals.
Subject to satisfaction of those conditions, definitive agreements are scheduled
to be executed in the fourth quarter of 1999.
ICG transaction. In August 1999, we agreed to acquire all of the stock of
ICG Satellite Services and its subsidiary, Maritime Telecommunications Network,
Inc., for $100.0 million in cash. The acquisition involves a major
around-the-clock teleport facility in New Jersey and a global maritime
telecommunications network headquartered in Miami, Florida. The acquired company
provides voice, data, Internet and compressed video satellite services to major
cruise lines, the U.S. military, Internet-related companies and international
telecommunications customers. The New Jersey teleport and operations center has
12 existing antennas and one under construction that access satellites covering
the continental U.S., South America and the Atlantic Ocean region. The
transaction is expected to close in the fourth quarter of 1999, subject to
satisfaction of customary conditions.
Watson transaction. In July 1999, we agreed to acquire Watson
Communications for $73.0 million in cash. The acquisition involves 11 wireless
and 10 broadcast towers in the San Francisco Bay area and one teleport that
contains nine antennas. The teleport covers the full domestic and the Pacific
international service region. Among the acquired sites is San Bruno Mountain, a
premiere location within the San Francisco market. The transaction is expected
to close in the fourth quarter of 1999, subject to the satisfaction of customary
conditions.
Credit Facilities Amendment. We currently have credit facilities that
provide for borrowings of up to $483.0 million. We are seeking to negotiate new
credit facilities that would provide for borrowings of up to $2.0
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billion. As of October 15, 1999, we had no borrowings under our credit
facilities and available cash of $154.0 million. On a pro forma basis, giving
effect as of that date to all pending transactions, we would have had aggregate
borrowings under our credit facilities of approximately $1.1 billion and no
available cash. We must arrange for additional borrowings or other external
funds in order to complete all of our pending transactions. There is no
assurance that we will successfully negotiate new credit facilities or that we
will obtain our desired new borrowing level. The new credit facilities may
involve different and more restrictive covenants or other terms than our
existing credit facilities. Upon the execution of a new credit facility, we will
be required to recognize an extraordinary loss on extinguishment of debt. If the
new credit facility is executed in the fourth quarter of 1999, such loss would
be approximately $4.5 million, net of a tax benefit of approximately $3.0
million.
Private Placement of the Notes. On October 4, 1999, we closed the
private sale of the notes to institutional investors. Our net proceeds were
approximately $584.0 million, of which we used approximately $368.0 million to
repay all outstanding borrowings under our credit facilities. We invested the
balance in short-term, investment grade securities on an interim basis and will
use those funds to finance pending acquisitions and construction activities.
Our principal executive offices are located at 116 Huntington Avenue,
Boston, Massachusetts 02116. Our telephone number is (617) 375-7500.
THE NOTES
Securities Offered.................... 6.25% notes: $300,000,000 principal
amount of 6.25% Convertible Notes Due
2009 previously issued in a private
placement. We refer to those notes as the
6.25% notes.
2.25% notes: $425,500,000 principal
amount at maturity of 2.25% Convertible
Notes Due 2009 previously issued in a
private placement. This is equivalent to
total proceeds at the issue price of
$300,062,600. We refer to those notes as
the 2.25% notes and, together with the
6.25% notes, as the notes.
Issue Price........................... 6.25% notes: 100% plus accrued interest,
if any, from the date of issue.
2.25% notes: 70.52% plus accrued
interest, if any, from the date of issue.
Interest.............................. 6.25% notes: 6.25% per annum on the
principal amount, payable semiannually in
arrears in cash on April 15 and October
15 of each year, beginning April 15,
2000.
2.25% notes: 2.25% per annum on the
principal amount, payable semiannually in
arrears in cash on April 15 and October
15 of each year, beginning April 15,
2000.
Yield to Maturity..................... 6.25% notes: 6.25% per annum calculated
on a semiannual basis from October 4,
1999.
2.25% notes: 6.25% per annum, calculated
on a semiannual basis giving effect both
to accrued original issue discount and to
accrued interest from October 4, 1999.
Conversion Rights..................... 6.25% notes: You may convert the 6.25%
notes at any time on or before October
15, 2009, unless we have redeemed or
purchased them. The 6.25% notes are
convertible into shares of Class A common
stock at a conversion price of $24.40 per
share. We will deliver 40.9836 shares of
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Class A common stock for each $1,000
principal amount of 6.25% notes. Upon
conversion you will not receive any cash
payment representing accrued interest.
2.25% notes: You may convert the 2.25%
notes at any time on or before October
15, 2009, unless we have redeemed or
purchased them. The 2.25% notes are
convertible into shares of Class A common
stock at a conversion price of $24.00 per
share. We will deliver 29.3833 shares of
Class A common stock for each $1,000
principal amount at maturity of 2.25%
notes. We will not adjust the conversion
rate for accrued original issue discount
or interest. Upon conversion, you will
not receive any cash payment representing
accrued original issue discount or
interest.
The conversion rate of both series of
notes is subject to adjustment in certain
events.
Maturity Date......................... October 15, 2009.
Change in Control..................... If a change in control of our company
occurs, you may require us to purchase
your notes for cash at a price equal to
the principal amount, in the case of the
6.25% notes, and the issue price plus
accrued original issue discount in the
case of the 2.25% notes. In each case we
will also be required to pay accrued and
unpaid interest. Our existing credit
facilities prohibit making these change
in control payments without bank consent
until December 2006.
Optional Redemption................... 6.25% notes: We will not be able to
redeem the 6.25% notes prior to October
22, 2002. Thereafter, we can redeem those
notes, at our option, in whole or in part
at a redemption price initially of
103.125% of the principal amount. The
redemption price declines ratably
immediately after October 15 of each
following year to 100% of the principal
amount in 2005. We are also required to
pay accrued and unpaid interest.
2.25% notes: We will not be able to
redeem the 2.25% notes prior to October
22, 2003. Thereafter, we can redeem those
notes, at our option, in whole or in part
at increasing redemption prices designed
to reflect the accrued original issue
discount. We are also required to pay
accrued and unpaid interest.
Repurchase of Notes at
Your Option......................... 6.25% notes: You may require us to
repurchase all or any of your 6.25% notes
on October 22, 2006 at their principal
amount, together with accrued and unpaid
interest.
2.25% notes: You may require us to
repurchase all or any of your 2.25% notes
on October 22, 2003 at $802.93, which is
its issue price plus accrued original
issue discount, together with accrued and
unpaid interest.
We may, at our option, elect to pay the
repurchase price of each series in cash
or shares of Class A common stock, or any
combination thereof. Our existing credit
facilities require us to pay entirely in
stock unless we obtain bank consent.
Sinking Fund.......................... None.
-7-
<PAGE>
Original Issue Discount
on 2.25% Notes...................... Each 2.25% note was issued with original
issue discount for federal income tax
purposes. The amount of the discount is
the difference between the principal
amount of the 2.25% note at maturity and
its issue price. You should be aware that
accrued original issue discount will be
includable periodically in your gross
income for federal income tax purposes
before conversion, redemption, other
disposition or maturity of your 2.25%
notes, whether or not those notes are
ultimately converted, redeemed, sold to
us or others or paid at maturity.
Ranking............................... The notes of the two series will rank
equally with one another. Both series
will effectively rank junior to
indebtedness outstanding under the credit
facilities since all of that indebtedness
is issued by our subsidiaries and is
secured, directly or indirectly through
guarantees, by the assets of our
subsidiaries.
Registration Rights................... We have agreed to keep the SEC
registration statement that includes this
prospectus useable until October 4, 2001
or any shorter period permitted under the
SEC rules permitting unregistered resales
of privately placed securities. The
interest rate on the notes will increase
if we are not in compliance with this
requirement.
Use of Proceeds....................... We will not receive any proceeds from the
sale by the selling securityholders of
the notes or the shares issuable upon
conversion.
Trading............................... The notes are not listed and trade on the
over-the-counter market. The Class A
common stock is listed on the NYSE under
the symbol "AMT."
Common Stock Outstanding(1).......... 144,466,550 shares of Class A common stock
8,811,940 shares of Class B common stock
2,422,804 shares of Class C common stock
-----------
155,701,294 shares of common stock
===========
(1) The number of shares of common stock outstanding was determined as of
October 1, 1999. This number does not include shares we may issue in the
future upon conversion of other securities. Examples of these future
issuances include: (a) shares of Class A common stock issuable upon
conversion of Class B common stock or Class C common stock, (b) shares
issuable upon exercise of options currently outstanding to purchase an
aggregate of 13,774,198 shares of common stock, (c) 3,000,000 shares
issuable upon exercise of the warrant to be issued in the AirTouch
transaction, or (d) 24,797,690 of Class A common stock issuable upon
conversion of the notes.
-8-
<PAGE>
SELECTED FINANCIAL DATA
We have derived the following selected financial data from our historical
consolidated financial statements and our unaudited pro forma condensed
consolidated financial statements. The selected financial data should be read in
conjunction with the Historical Financial Statements. Prior to our separation
from our former parent on June 4, 1998, we operated as a subsidiary of American
Radio Systems and not as an independent company. Therefore, our results of
operations for that period may be different from what they would have been had
we operated as a separate, independent company.
Year-to-year comparisons are significantly affected by our acquisitions and
construction of towers, both of which have been numerous during the periods
presented. Our principal acquisitions are described in "American Tower--Recent
Developments" under "Summary" on page 3 and in the notes to the Historical
Financial Statements.
The pro forma balance sheet data gives effect, as of June 30, 1999, to the
pro forma transactions not then consummated: the AirTouch transaction, the AT&T
transaction, the UNIsite merger and the notes placement. The pro forma statement
of operations data and other operating data gives effect to the pro forma
transactions, as if each had occurred on January 1, 1998. We use the term pro
forma transactions to mean certain of our major acquisitions and financings as
follows: the OmniAmerica merger, the TeleCom merger, the separation from
American Radio Systems, the ATC merger, the Wauka transaction, the UNIsite
merger, the AirTouch transaction, the AT&T transaction, our public offerings in
July 1998 and February 1999 and our private placements in February and October
1999. Pro forma transactions do not include all of the consummated or pending
acquisitions or pending construction. See "American Tower--Recent Developments"
under "Summary" on page 3 and "Unaudited Pro Forma Condensed Consolidated
Financial Statements" on page 19.
We account for all of the included acquisitions as purchases. This means
that for accounting and financial reporting purposes, we include the results of
the acquired companies or assets with ours only after the closing of the
acquisition. The pro forma financial data reflects certain adjustments, as
explained elsewhere in this prospectus. Therefore, any comparison of the pro
forma financial data with the historical financial data for periods before 1998
is inappropriate. See "Unaudited Pro Forma Condensed Consolidated Financial
Statements" on page 19.
We use the term "tower cash flow" to mean operating income (loss) before
depreciation and amortization, tower separation expenses and corporate general
and administrative expenses. We use the term "tower separation expenses" to
refer to the one-time expenses incurred as a result of our separation from
American Radio Systems. We use "EBITDA" to mean operating income (loss) before
depreciation and amortization and tower separation expenses. "After-tax cash
flow" means income (loss) before extraordinary losses, plus depreciation and
amortization. We do not consider tower cash flow, EBITDA and after-tax cash flow
as a substitute for alternative measures of operating results or cash flow from
operating activities or as a measure of our profitability or liquidity. These
measures of performance are not calculated in accordance with generally accepted
accounting principles. However, we have included them because they are generally
used in the communications site industry as a measure of a company's operating
performance. More specifically, we believe they can assist in comparing company
performances on a consistent basis without regard to depreciation and
amortization. Our concern is that depreciation and amortization can vary
significantly among companies depending on accounting methods, particularly
where acquisitions are involved, or on non-operating factors including
historical cost bases. We believe tower cash flow is useful because it enables
you to compare tower performances before the effect of tower separation and
corporate general and administrative expenses that do not relate directly to
performance.
-9-
<PAGE>
<TABLE>
<CAPTION>
AMERICAN TOWER CORPORATION
Selected Financial Data(1)
July 17, 1995 Year Ended Year Ended Six Months Ended
(inception) December 31, December 31, 1998 June 30, 1999
through ----------- -------------------- ---------------------
December 31, 1995 1996 1997 Historical Pro Forma Historical Pro Forma
----------------- ---- ---- ---------- --------- ---------- ---------
(in thousands, except per share data)
<S> <C> <C> <C> <C> <C> <C> <C>
Statements of Operations Data:
Operating revenues................... $163 $2,897 $17,508 $103,544 $273,092 $101,561 $146,482
---- ------ ------- -------- -------- -------- --------
Operating expenses:
Operating expenses excluding
depreciation and amortization,
tower separation, and corporate
general and administrative expenses 60 1,362 8,713 61,751 172,624 59,020 88,047
Depreciation and amortization...... 57 990 6,326 52,064 212,859 57,808 111,632
Tower separation expenses.......... 12,772 12,772
Corporate general and administrative
expenses......................... 230 830 1,536 5,099 8,599 4,140 5,890
-------- ------- ------- -------- -------- --------- --------
Total operating expenses......... 347 3,182 16,575 131,686 406,854 120,968 205,569
-------- ------- ------- -------- -------- --------- --------
(Loss) income from operations........ (184) (285) 933 (28,142) (133,762) (19,407) (59,087)
Interest expense..................... (3,040) (23,229) (11,539) (59,559)
(114,821)
Interest income and other, net....... 36 251 9,217 9,217 10,737 10,737
Minority interest in net (earnings)
losses of subsidiaries (2) (185) (193) (287) (287) 79 79
-------- ------- ------- -------- -------- --------- --------
Loss before income taxes and
extraordinary losses................. (184) (434) (2,049) (42,441) (239,653) (20,130) (107,830)
Benefit (provision) for income taxes. 74 (45) 473 4,491 70,091 747 31,535
-------- ------- ------- -------- -------- --------- --------
Loss before extraordinary losses..... $(110) $(479) $(1,576) $(37,950)$(169,562) $(19,383) $(76,295)
======== ======= ======= ======== ======== ========= ========
Basic and diluted loss per common share
before extraordinary losses(3)..... $(0.00) $(0.01) $(0.03) $(0.48) $(1.10) $(0.14) $(0.49)
======== ======= ======= ======== ======== ========= ========
Basic and diluted weighted average
common shares outstandings(3)...... 48,732 48,732 48,732 79,786 154,658 143,503 155,519
======== ======= ======= ======== ======== ========= ========
Other Operating Data:
Ratio of earnings to fixed charges(4) -- -- -- -- -- -- --
Tower cash flow...................... $103 $1,535 $8,795 $41,793 $100,468 $42,541 $58,435
EBITDA............................... (127) 705 7,259 36,694 91,869 38,401 52,545
EBITDA margin........................ (N/A) 24.3% 41.5% 35.4% 33.6% 37.8% 35.9%
After-tax cash flow.................. (53) 511 4,750 14,114 43,297 38,425 35,337
Cash provided by (used for) operating
activities......................... (51) 2,230 9,913 18,429 -- 25,844 --
Cash used for investing activities... -- -- (216,783) (350,377) -- (300,787) --
Cash provided by financing activities 63 132 209,092 513,527 -- 441,989 --
<CAPTION>
Six Months Ended
December 31, June 30, 1999
------------- --------------------
1997 1998 Historical Pro Forma
---- ---- ---------- ---------
<S> <C> <C> <C> <C>
Tower Data:
Towers operated at end of period(5)........................................ 674 2,492 3,644 9,271
Towers constructed(6)...................................................... 84 503 445 n/a
-10-
<PAGE>
<CAPTION>
Year Ended December 31,
Historical June 30, 1999
---------- -------------
1995(1) 1996 1997 1998 Historical Pro Forma
------- ---- ---- ---- ---------- ---------
(in thousands)
<S> <C> <C> <C> <C> <C> <C>
Balance Sheet Data:
Cash and cash equivalents................................. $ 12 $2,373 $ 4,596 $ 186,175 $ 353,221 $ 360,147
Working capital (deficiency), excluding current portion of
long-term debt............................................ (40) 663 (2,208) 93,602 352,848 349,748
Property and equipment, net............................... 3,759 19,710 117,618 449,476 725,846 725,846
Unallocated purchase price................................ -- -- -- -- -- 1,367,712
Total assets.............................................. 3,863 37,118 255,357 1,502,343 2,518,576 3,912,127
Long-term debt, including current portion................. -- 4,535 90,176 281,129 284,121 972,057
Convertible notes, net of discount........................ -- -- -- -- -- 600,000
Total stockholders' equity................................ 3,769 29,728 153,208 1,091,746 2,161,933 2,207,433
<FN>
- --------------
(1) We were organized on July 17, 1995.
(2) Represents the minority interest in net (earnings) losses of our non wholly-owned subsidiaries.
(3) Basic and diluted loss per common share before extraordinary losses has been computed using (a) in the case of historical
information, for periods prior to June 4, 1998, the number of shares outstanding following the separation from American Radio
Systems and (b) in the case of pro forma information, the number of shares expected to be outstanding following the pro forma
transactions.
(4) For purposes of calculating this ratio, "earnings" consist of loss before income taxes and extraordinary losses and fixed
charges. "Fixed charges" consist of interest expense, amortization of debt discount and related issuance costs and the
component of rental expense believed by management to be representative of the interest factor on that expense. We had a
deficiency in earnings to fixed charges in each period as follows (in millions): 1995--$184; 1996--$434; 1997--$2,049; 1998
(historical)--$42,441; and 1999 (six months ended June 30, historical)--$20,130.
(5) Includes information with respect to our company only and assumes consummation of all pending transactions, including those
not included in the pro forma transactions. Does not include towers under construction. See Note (6) below.
(6) Includes towers constructed in each period by us, including towers constructed for and owned by third parties. These numbers
do not include towers constructed by companies we acquired during the applicable period.
</FN>
</TABLE>
-11-
<PAGE>
RISK FACTORS
You should consider carefully the following factors and other information
in this prospectus before deciding to invest in our securities.
If we cannot keep raising capital, our growth will be impeded
Without additional capital, we would need to curtail our acquisition and
construction programs. We expect to use borrowed funds for most of this capital.
However, we must continue to satisfy financial ratios and to comply with
financial and other covenants in order to do so. If our revenues and cash flow
do not meet expectations, we may lose our ability to borrow money. These same
factors, as well as market conditions beyond our control, could make it
difficult or impossible for us to sell stock as an alternative to borrowing.
As explained below, we do not have sufficient borrowing capacity under our
credit facilities to finance all of our pending acquisitions. See "Our future
commitments for pending transactions exceed our currently available funds" on
page 14.
Meeting payments on our large debt could be a burden to us
Our high debt level makes us vulnerable to downturns in our operations.
This high debt level requires us to use most of our cash flow to make interest
and principal payments. If we do not generate sufficient cash flow through our
operations to make interest and principal payments, we may be forced to sell
debt or equity securities or to sell some of our core assets. This could be
harmful to our business and to our securityholders. Market conditions or our own
financial situation may require us to make these sales on unattractive terms.
Demand for tower space may be beyond our control
Many of the factors affecting the demand for tower space, and therefore our
cash flow, are beyond our control. Those factors include:
o consumer demand for wireless services,
o the financial condition of wireless service providers and their
preference for owning or leasing antenna sites,
o the growth rate of wireless communications or of a particular
wireless segment,
o the number of wireless service providers in a particular segment,
nationally or locally,
o governmental licensing of broadcast rights,
o zoning, environmental and other government regulations, and
o technological changes.
"Roaming" and "resale" arrangements could also adversely affect demand.
These arrangements enable a wireless service provider to serve customers outside
its license area through agreements with other providers. Wireless service
providers might consider roaming and resale arrangements preferable to leasing
antenna space from us.
-12-
<PAGE>
New tower construction, particularly build-to-suit projects, involves
uncontrollable risks and increasing competition
Our increasing focus on major build-to-suit projects for wireless service
providers entails several unique risks. The first is the greater dependence on a
single customer. Second, because of intense competition for these projects, we
often grant the wireless service provider non-economic lease and control
provisions more favorable than our general terms. Finally, although we have the
benefit of an "anchor" tenant in build-to-suit projects, we may not be able to
find a sufficient number of additional tenants. In fact, one reason wireless
service providers may want build-to-suit arrangements is to share or escape the
costs of an undesirable site. A site may be undesirable because it has high
construction costs or may be considered a poor location by other providers.
Our expanded construction activities also involve other substantial risks.
These risks include:
o increasing our debt and the amount of payments on that debt,
o uncontrollable risks that could delay or increase the cost of a
project,
o increasing competition for construction sites and experienced tower
construction companies, resulting in significantly higher costs and
failure to meet time schedules,
o failing to meet time schedules could result in our paying
significant penalties to prospective tenants, particularly in
build-to-suit situations, and
o possible lack of sufficient experienced personnel to manage an
expanded construction program.
We cannot control the main factors that can prevent, delay or increase the
cost of construction. These factors include:
o zoning and local permitting requirements,
o environmental group opposition,
o availability of skilled construction personnel and construction
equipment,
o adverse weather conditions, and
o federal regulations.
Our acquisition strategy involves increasing acquisition costs, high debt levels
and potential management and integration issues
Increased competition, which we believe will continue, has resulted in
substantially higher acquisition costs, particularly for towers being sold by
wireless service providers. These prices, in turn, result in high debt and debt
service requirements. Equally important, the increased size of our acquisitions
from wireless service providers could create certain problems we have not faced
in the past:
o dependence on a limited number of customers,
o lease and control provisions more favorable to the wireless service
provider than those we give our tenants generally,
o integration of major national networks into our operational systems,
-13-
<PAGE>
o demands on managerial personnel that could divert their attention
from other aspects of our business, and
o potential antitrust constraints, either in local markets or on a
regional or national basis, that could impede future acquisitions or
require selective divestitures at unfavorable prices.
An additional risk is the acquisition of significant numbers of towers that
may have limited marketing potential. See "American Tower--Recent
Developments--Pending Transactions--AT&T transaction" under "Summary" on page 4.
Covenants in our credit facilities could impede our growth strategy and restrict
our ability to pay interest on or redeem or repurchase the notes
Our growth strategy may be impaired by restrictive covenants in our credit
facilities. The most significant of these covenants impose limits on our
aggregate borrowings and require us to meet certain financial ratios and comply
with all of the financial and other covenants in order to borrow funds. Also,
certain types of acquisitions and investments in other companies are limited in
accordance with a formula based, in part, on proceeds of equity offerings and,
in part, on cash flow. Events beyond our control may affect our ability to meet
these requirements. If these covenants restrict our ability to borrow funds, our
acquisition strategy and construction program will be harmed.
Our credit facilities also restrict the ability of our subsidiaries to pay
dividends or make other distributions to the parent company and prohibit those
dividends and other distributions during periods of default. Since we are a
holding company, with no independent operations, we are dependent on our
subsidiaries for funds in order for us to make payments of interest and
principal on the notes.
In addition, our existing credit facilities prohibit us from redeeming or
repurchasing any of the notes without bank consent until December 2006. This
requires us to elect to repurchase the notes with Class A common stock on the
repurchase dates and to obtain bank consent in order to repurchase notes upon
any change in control.
Our new credit facilities, if entered into, may contain different and more
restrictive covenants than our existing credit facilities with respect to
payments of interest on and principal of the notes and on the ability of our
subsidiaries to pay dividends or make other distributions and our ability to
make certain types of acquisitions and investments.
Our future commitments for pending transactions exceed our currently available
funds
We have the ability to borrow approximately $483.0 million under our
existing credit facilities. We also had, as of October 15, 1999, available cash
of $154.0 million. Our future commitments under pending transactions aggregate
$1.7 billion. Accordingly, we must arrange for additional borrowings or other
external funds in order to complete all or some of our pending transactions.
There is no assurance that we will successfully negotiate new credit facilities
or that we will obtain our desired new borrowing level. If we are unable to
complete transactions that we are contractually bound to perform, we may have to
pay liquidated or other damages to the other parties to the agreements. Pursuant
to our agreement with AirTouch, we paid a deposit of $100.0 million, which we
could forfeit if we were unable to close the transaction.
Interest on the notes may not be deductible
If the notes were found to be "corporate acquisition indebtedness" or
"disqualified debt instruments," we would not be entitled to deduct the interest
on the notes for federal income tax purposes. See "Certain Federal Income Tax
Consequences--Our Deductions for Interest and OID on the Notes" on page 48.
-14
<PAGE>
We are dependent on key personnel and would be adversely affected if they leave
The loss of our Chief Executive Officer, Steven B. Dodge, and other
executive officers has a greater likelihood of having a material adverse effect
upon us than it would on most other companies of our size. Our growth strategy
is highly dependent on the efforts of Mr. Dodge and our other executive
officers. Our ability to raise capital is dependent in part on the reputation of
Mr. Dodge. You should be aware that we have not entered into employment
agreements with Mr. Dodge or most of our other executive officers. We may not be
able to retain our executive officers, including those with employment
agreements, or other key personnel or prevent them from competing with us if
they leave.
New technologies could make our tower antenna leasing services less desirable to
potential tenants
Mobile satellite systems and other new technologies could compete with
land-based wireless communications systems, thereby reducing the demand for
tower lease space and other services we provide. The FCC has granted license
applications for several low-earth orbiting satellite systems that are intended
to provide mobile voice or data services. In addition, the emergence of new
technologies could reduce the need for tower-based transmission and reception
and have an adverse affect on our operations. For example, at least one company
is offering systems with devices that can be attached to telephone and utility
lines that could serve as an alternative to certain towers.
The growth in delivery of video services by direct broadcast satellites and
the development and implementation of signal combining technologies, which
permit one antenna to service two different transmission frequencies and,
therefore, two customers, could also reduce the demand for our tower space by
wireless service providers.
We have Year 2000 risks, including some that are unique to tower operation
We, like all companies, face risks associated with the fact that many
computers and computer software programs were not designed to recognize the
change from 1999 to 2000 or are otherwise unable to process dates related to the
turn of the millennium. These computers, and the systems they control, might
malfunction or cease to work unless they are reprogrammed or replaced by the end
of 1999.
One known area of Year 2000 risk for us and for other operators of
communications sites is tower lighting systems. Year 2000-related problems could
prevent our monitoring system from detecting a failure of light systems on our
tower structures, creating a situation where a failed light might not be
automatically reported to air navigation. We and other tower owners are
responsible for providing tower lighting that complies with FCC and FAA
requirements. Our Year 2000 plans and risks are more fully discussed under
"Management's Discussion and Analysis of Financial Condition and Results of
Operations--Year 2000" in the June 1999 Quarterly Report.
We could be harmed if perceived health risks from radio emissions are
substantiated
If a connection between radio emissions and possible negative health
effects, including cancer, were established, we would be materially and
adversely affected. The results of several substantial studies by the scientific
community in recent years have been inconclusive. We and the lessees of antenna
sites on our towers are subject to government regulations relating to radio
frequency emissions. We do not maintain any significant insurance with respect
to these matters.
-15-
<PAGE>
Pro forma financial information is based on estimates and assumptions and may
not be indicative of actual future results
Our actual future results could vary materially and adversely from those
reflected in the pro forma financial information we have included in this
prospectus. That information is based upon a number of assumptions we believe to
be reasonable. However, our two most significant acquisitions, the AirTouch and
AT&T transactions, do not involve the acquisition of businesses. The towers
involved in those acquisitions were operated as part of the wireless service
businesses of AirTouch and AT&T. Separate financial records were not maintained
and financial statements were never prepared for the operation of those towers.
We have, however, compiled certain revenue and expense data of those towers in
the pro forma information. In the case of certain expenses, we have estimated
amounts based on our own experience with comparable towers. Neither our
auditors, AirTouch's auditors, AT&T's auditors nor the initial purchasers have
expressed any opinion or provided any form of assurance with respect to AirTouch
or AT&T's historical data presented in the unaudited pro forma financial
information.
We could have liability under environmental laws
Under various federal, state and local environmental laws, we, as an owner,
lessee or operator of real estate, may be liable for the substantive costs of
remediating soil and groundwater contaminated by hazardous wastes. Some of these
laws may impose responsibility and liability on us even if we did not cause the
contamination or even know about it. Almost all of the towers we own and
operate, other than rooftop towers, are located on parcels of land, which could
result in substantial environmental liability. Our liability often will continue
even if we sell the property.
The notes will effectively rank junior to secured debt under our credit
facilities
Our payment of principal of and interest on the notes will effectively rank
junior to all existing and future debt under our credit facilities. This is so
because the debt under our credit facilities is issued or guaranteed by our
subsidiaries and secured by their assets. The notes will also effectively rank
junior to all other existing and future debt of our subsidiaries. The parent
company has also guaranteed that debt and secured it with its assets, and the
stock of its subsidiaries. As a result, in the event of our insolvency,
liquidation or reorganization, or should any of that debt be accelerated because
of a default, we must pay that debt in full before we can make any payment on
the notes.
There may not be any trading market for the notes
There is no existing trading market for the notes and one may never
develop. Accordingly, you may not be able to sell your notes or sell them at an
acceptable price. If a market were to develop, the notes could trade at prices
that may be higher or lower than the initial offering price depending on many
factors, including prevailing interest rates, the market price of the Class A
common stock, our operating results and the market for similar securities. The
initial purchasers of the notes have advised us that they currently intend to
make a market in the notes of each series. They are not, however, obligated to
do so. Any market making may be discontinued at any time without notice.
Therefore, we cannot assure you as to the liquidity of any trading market for
either series of the notes or that an active market for either series will
develop. We do not intend to list the notes of either series on any securities
exchange or to seek approval for quotation through any automated quotation
system.
Control by our principal stockholders could deter mergers where you could get
more than current market price for your stock
Control by Mr. Dodge and others may have the effect of discouraging a
merger or other takeover of our company in which holders of Class A common stock
may be paid a premium for their shares over then-current market prices. Mr.
Dodge, together with a limited number of our directors, may be able to control
or block the vote
-16-
<PAGE>
on mergers and other matters submitted to the common stockholders. On October 1,
1999, our directors and executive officers, together with their affiliates,
owned "beneficially" approximately 45% of the combined voting power of the
common stock. On that date, Mr. Dodge, together with his affiliates, owned
"beneficially" approximately 29% of the combined voting power.
Our common stock does not pay dividends
We have never paid a dividend on our common stock and do not expect to pay
cash dividends in the foreseeable future.
Our forward-looking statements could prove to be wrong and we might suffer a
material adverse effect
Our forward-looking statements are subject to risks and uncertainties. You
should note that many factors, some of which are discussed in this section or
elsewhere in this prospectus or in the documents we have incorporated by
reference, could affect our company in the future and could cause our results to
differ materially from those expressed in our forward-looking statements.
Forward-looking statements include those regarding our goals, beliefs, plans or
current expectations and other statements regarding matters that are not
historical facts. For example, when we use the words "believe," "expect,"
"anticipate" or similar expressions, we are making forward-looking statements.
Forward-looking statements include statements concerning:
o the outcome of our growth strategy,
o future results of operations,
o liquidity and capital expenditures,
o construction and acquisition activities,
o debt levels and the ability to obtain financing and make payments on
our debt,
o regulatory developments and competitive conditions in the
communications site and wireless carrier industries,
o projected growth of the wireless communications and wireless carrier
industries, and
o general economic conditions.
We are not required to release publicly the results of any revisions to
these forward-looking statements we may make to reflect future events or
circumstances.
-17-
<PAGE>
MARKET PRICES AND DIVIDEND POLICY
Market Price Data
On February 27, 1998, our Class A common stock commenced trading on a
"when-issued" basis on the inter-dealer bulletin board of the over-the-counter
market. Our Class A common stock commenced trading on the NYSE on June 5, 1998
(the day after we separated from American Radio Systems). The following table
presents reported high and low sale prices of our Class A common stock in the
over-the-counter market or on the Composite Tape of the NYSE.
<TABLE>
<CAPTION>
1998 High Low
---- ---- ---
<S> <C> <C>
Quarter Ended March 31 (commencing February 27, 1998).......... $ 20.250 $15.500
Quarter Ended June 30.......................................... 26.125 18.750
Quarter Ended September 30..................................... 28.625 14.375
Quarter Ended December 31...................................... 29.625 13.250
<CAPTION>
1999
----
<S> <C> <C>
Quarter Ended March 31......................................... 30.250 20.500
Quarter Ended June 30.......................................... 26.875 20.500
Quarter Ended September 30..................................... 25.875 19.500
Quarter Ended December 31 (through October 19)................. 20.125 17.5625
</TABLE>
The outstanding shares of common stock and number of registered holders as of
October 1, 1999 were as follows:
<TABLE>
<CAPTION>
Class
----------------------------
A B C
----------- --------- ---------
<S> <C> <C> <C>
Outstanding shares....................................................... 144,466,550 8,811,940 2,422,804
Registered holders....................................................... 539 64 1
</TABLE>
Dividends
We have never paid a dividend on any class of common stock. We anticipate
that we will retain future earnings, if any, to fund the development and growth
of our business. We do not anticipate paying cash dividends on shares of common
stock in the foreseeable future. Our credit facilities restrict the payment of
cash dividends by our subsidiaries. See "Description of Capital Stock--Dividend
Restrictions" on page 41.
-18-
<PAGE>
UNAUDITED PRO FORMA CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
We have included our unaudited pro forma condensed consolidated balance
sheet as of June 30, 1999 and our unaudited pro forma condensed consolidated
statements of operations for the year ended December 31, 1998 and for the six
months ended June 30, 1999. To the extent required, these pro forma statements
have been adjusted for:
o the OmniAmerica merger, the TeleCom merger, the separation from
American Radio Systems, the ATC merger, the Wauka transaction, the
UNIsite merger, the AirTouch transaction and the AT&T transaction,
o our public offerings of Class A common stock in July 1998 and
February 1999 and our private placement in February 1999, and
o the notes placement in October 1999.
The pro forma financial statements do not reflect all of our consummated or
pending acquisitions. The adjustments assume that all pro forma transactions
were consummated on January 1, 1998, in the case of the unaudited pro forma
condensed consolidated statement of operations. The adjustments assume that the
pending pro forma transactions were consummated as of June 30, 1999 in the case
of the unaudited pro forma condensed consolidated balance sheet. You should read
the pro forma financial statements in conjunction with the Historical Financial
Statements. Although the AirTouch transaction and the AT&T transaction do not
involve the acquisition of a business, we have provided pro forma information
related to these transactions, as we believe such information is material to
your investment decision.
The pro forma financial statements may not reflect our financial condition
or our results of operations had these events actually occurred on the date
specified. They may also not reflect our financial condition or our results of
operations of operating as a separate, independent company during the periods.
Finally, they may not reflect our future financial condition or results of
operations.
-19-
<PAGE>
<TABLE>
<CAPTION>
AMERICAN TOWER CORPORATION
UNAUDITED PRO FORMA CONDENSED CONSOLIDATED BALANCE SHEET
JUNE 30, 1999
(in thousands)
Adjustments
for Pro Forma Pro Forma,
Historical Transactions(a) as adjusted
---------- --------------- -----------
ASSETS
<S> <C> <C> <C>
Cash and cash equivalents..................... $ 353,221 $ 6,926 $ 360,147
Accounts receivable, net...................... 38,454 2,384 40,838
Other current assets.......................... 25,501 529 26,030
Notes receivable.............................. 13,624 13,624
Property and equipment, net................... 725,846 725,846
Unallocated purchase price.................... 1,367,712 1,367,712
Intangible assets, net........................ 1,213,374 1,213,374
Deferred tax asset............................ 116,079 116,079
Deposits and other assets..................... 32,477 16,000 48,477
---------- ---------- ----------
Total...................................... $2,518,576 $1,393,551 $3,912,127
========== ========== ==========
<CAPTION>
LIABILITIES AND
STOCKHOLDERS' EQUITY
<S> <C> <C> <C>
Current liabilities, excluding current
portion of long-term debt.................. $ 64,328 $ 12,939 $ 77,267
Deferred income taxes......................... 45,656 45,656
Other long-term liabilities................... 2,545 1,520 4,065
Long-term debt, including current
portion.................................... 284,121 687,936 972,057
Convertible notes, net of discount............ 600,000 600,000
Minority interest............................. 5,649 5,649
Stockholders' equity.......................... 2,161,933 45,500 2,207,433
---------- ---------- ----------
Total..................................... $2,518,576 $1,393,551 $3,912,127
========== ========== ==========
</TABLE>
See Notes to Unaudited Pro Forma Condensed
Consolidated Balance Sheet of American Tower.
-20-
<PAGE>
NOTES TO UNAUDITED PRO FORMA CONDENSED CONSOLIDATED BALANCE SHEET
We have prepared the unaudited pro forma condensed consolidated balance
sheet as of June 30, 1999 to give effect, as of such date, to the AirTouch
transaction, the AT&T transaction, the UNIsite merger and the notes placement,
the only pro forma transactions not completed by that date. See "American
Tower--Recent Developments--Pending Transactions" under "Summary" on page 4 for
a description of those pro forma transactions.
(a) The following table sets forth the pro forma balance sheet adjustments as of
June 30, 1999 (in thousands).
<TABLE>
<CAPTION>
Total
Adjustments
AirTouch AT&T UNIsite Notes for Pro Forma
Transaction Transaction Merger Placement Transactions
----------- ----------- ------ --------- ------------
ASSETS
<S> <C> <C> <C> <C> <C>
Cash and cash equivalents..................................... $ 6,926 $ 6,926
Accounts receivable, net...................................... 2,384 2,384
Other current assets.......................................... 529 529
Unallocated purchase price(1)................................. $845,500 $265,000 257,212 1,367,712
Deposits and other assets..................................... $ 16,000 16,000
-------- -------- -------- -------- ----------
Total...................................................... $845,500 $265,000 $267,051 $ 16,000 $1,393,551
======== ======== ======== ======== ==========
<CAPTION>
LIABILITIES AND STOCKHOLDERS' EQUITY
<S> <C> <C> <C> <C> <C>
Current liabilities, excluding current portion of long-term
debt....................................................... $ 5,000 $ 7,939 $ 12,939
Deferred income taxes......................................... 45,656 45,656
Other long-term liabilities................................... 1,520 1,520
Long-term debt, including current portion..................... $800,000 260,000 211,936 $(584,000) 687,936
Convertible notes, net of discount............................ 600,000 600,000
Stockholders' equity.......................................... 45,500(2) 45,500
-------- -------- -------- -------- ----------
Total...................................................... $845,500 $265,000 $267,051 $ 16,000 $1,393,551
======== ======== ======== ======== ==========
</TABLE>
We will account for all of the pro forma transactions under the purchase
method of accounting.
The following table sets forth the purchase prices and related pro forma
financing of the transactions described above (in millions).
<TABLE>
<CAPTION>
Fair Value of
Purchase Price Borrowings Debt Assumed
<S> <C> <C>
AirTouch transaction.................................................. $ 845.5(1) $ 800.0
AT&T transaction...................................................... 260.0 260.0
UNIsite merger........................................................ 165.0 160.2 $ 51.7
</TABLE>
(1) Upon completion of our evaluation of the purchase price allocations, we
expect that the average life of the assets should approximate 15 years.
(2) We have agreed to issue warrants having a fair value of approximately
$45.5 million to purchase an aggregate of 3,000,000 shares of Class A
common stock at $22.00 per share.
-21-
<PAGE>
<TABLE>
<CAPTION>
AMERICAN TOWER CORPORATION
UNAUDITED PRO FORMA CONDENSED CONSOLIDATED STATEMENT OF OPERATIONS
Year Ended December 31, 1998
(in thousands, except per share data)
Adjustments
for Pro Forma Pro Forma,
Historical Transactions(a) as adjusted
---------- --------------- -----------
<S> <C> <C> <C>
Operating revenues............................ $ 103,544 $ 169,548 $ 273,092
Operating expenses excluding depreciation
and amortization, tower separation, and
corporate general and administrative
expenses................................... 61,751 110,873 172,624
Depreciation and amortization................. 52,064 160,795 212,859
Tower separation expenses..................... 12,772 12,772
Corporate general and administrative
expenses................................... 5,099 3,500 8,599
--------- ---------- ---------
Loss from operations.......................... (28,142) (105,620) (133,762)
--------- ---------- ---------
Other (income) expense:
Interest expense........................... 23,229 91,592 114,821
Interest income and other, net............. (9,217) (9,217)
Minority interest in net earnings of
subsidiaries............................... 287 287
--------- ---------- ---------
Total other (income) expense.................. 14,299 91,592 105,891
--------- ---------- ---------
(Loss) income before income taxes and
extraordinary losses....................... (42,441) (197,212) (239,653)
(Benefit) provision for income taxes(b)....... (4,491) (65,600) (70,091)
--------- ---------- ---------
(Loss) income before extraordinary losses..... $ (37,950) $ (131,612) $(169,562)
========= ========== =========
Basic and diluted (loss) per common share
before extraordinary losses................ $ (0.48) N/A $ (1.10)
========= ========== =========
Basic and diluted common shares
outstanding(c)............................. 79,786 74,872 154,658
========= ========== =========
</TABLE>
See Notes to Unaudited Pro Forma Condensed
Consolidated Statement of Operations.
-22-
<PAGE>
NOTES TO UNAUDITED PRO FORMA
CONDENSED CONSOLIDATED STATEMENT OF OPERATIONS
The unaudited pro forma condensed consolidated statement of operations for
the year ended December 31, 1998 gives effect to the pro forma transactions, as
if each of them had occurred on January 1, 1998. See "American Tower--Recent
Developments--Pending Transactions" under "Summary" on page 4 for a description
of the pending pro forma transactions and Historical Financial Statements for a
description of the other pro forma transactions.
(a) To record the results of operations for the pro forma transactions. We
have adjusted the results of operations to: (1) reverse historical interest
expense; and (2) record an increase of net interest expense of $99.0 million for
the year ended December 31, 1998 as a result of the increased debt after giving
effect to the July 1998 and February 1999 equity financings and the notes
placement.
We have also adjusted the results of operations to reverse historical
depreciation and amortization expense of $20.3 million for the year ended
December 31, 1998 and record depreciation and amortization expense of $160.8
million for the year ended December 31, 1998 based on estimated allocations of
purchase prices. With respect to unallocated purchase price, we have determined
pro forma depreciation and amortization expense based on an expected average
life of 15 years. Debt discount is being amortized using the effective interest
method. Debt issuance costs are being amortized on a straight line basis over
the term of the obligations. Amortization of debt discount and issuance costs
are included within interest expense.
We have not carried forward corporate general and administrative expenses
of the prior owners into the pro forma condensed consolidated financial
statements. These costs represent duplicative facilities and compensation to
owners and/or executives we did not retain, including charges related to the
accelerated vesting of stock options and bonuses that were directly attributable
to the purchase transactions. Because we already maintain our own separate
corporate headquarters, which provides services substantially similar to those
represented by these costs, we do not expect them to recur following the
acquisition. After giving effect to an estimated $3.5 million of incremental
costs, we believe that we have existing management capacity sufficient to
provide the services without incurring additional incremental costs.
-23-
<PAGE>
The following table sets forth the historical results of operations for the
pro forma transactions for the year ended December 31, 1998 (in thousands).
<TABLE>
<CAPTION>
Wauka ATC Separation July OmniAmerica TeleCom February
Transaction Merger From ARS Offering Merger Merger Offerings
----------- ------ ---------- -------- ----------- ------- ---------
<S> <C> <C> <C> <C> <C> <C> <C>
Operating revenues.......... $ 4,736 $11,337 $ 82,313 $ 12,273
Operating expenses
excluding depreciation
and amortization, and
corporate general and
administrative expenses. 2,065 3,936 73,461 2,701
Depreciation and
amortization............. 986 3,125 8,325 5,990
Corporate general and
administrative expenses. 3,520 13,932
------- -------- -------- --------
(Loss) income from
operations............... (1,835) 4,276 527 (10,350)
Other (income) expense:
Interest expense......... 997 3,333 $8,901 $(15,736) 2,638 2,873 $(19,184)
Interest income.......... (660)
Other, net............... 9 5,144 (458) 843
------- -------- -------- -------- -------- -------- --------
(Loss) income before
income taxes............. $(2,841) $ (4,201) $ (8,901) $ 15,736 $ (1,653) $(13,406) $ 19,184
======= ======== ======== ======== ======== ======== ========
<CAPTION>
Total Adjustments
UNIsite AirTouch AT&T Notes Pro Forma for Pro Forma
Merger Transaction Transaction Placement Adjustments Transactions
------ ----------- ----------- --------- ----------- ------------
<S> <C> <C> <C> <C> <C> <C>
Operating revenues........... $ 4,414 $51,566(d) $ 2,909(e) $ 169,548
Operating expenses
excluding depreciation
and amortization, and
corporate general and
administrative expenses... 1,615 19,400(f) 7,695(f) 110,873
Depreciation and
amortization.............. 1,870 $ 140,499 160,795
Corporate general and
administrative expenses... 12,273 (26,225) 3,500
-------- -------- --------- --------- ---------
(Loss) income from
operations................ (11,344) 32,166 (4,786) (114,274) (105,620)
Other (income) expense:
Interest expense.......... 6,320 64,000 20,800 $(7,403) 24,053 91,592
Interest income........... (2,331) 2,991
Other, net................ (27) (5,511)
-------- -------- --------- ------- --------- ---------
(Loss) income before
income taxes.............. $(15,306) $(31,834) $ (25,586) $ 7,403 $(135,807) $(197,212)
======== ======== ========= ======= ========= =========
</TABLE>
(b) To record the tax effect of the pro forma adjustments and impact on
our estimated effective tax rate. The actual effective tax rate may be different
once we determine the final allocation of purchase price.
(c) Includes shares of Class A common stock issued pursuant to: the Wauka
transaction--1.4 million, the ATC Merger--28.8 million, the OmniAmerica
merger--16.8 million, the TeleCom merger--3.9 million, July offering--27.9
million, and the February offerings--26.2 million.
-24-
<PAGE>
(d) Includes additional revenues to be recognized in connection with the
AirTouch lease agreement. Approximately $3.5 million of existing third-party
lease revenues has not been included.
(e) Includes additional revenues to be recognized in connection with the
AT&T and AT&T Wireless Services lease agreements. Approximately $8.8 million of
existing third-party lease revenues has not been included.
(f) The towers involved in each of these acquisitions were operated as
part of the wireless service businesses of AirTouch and AT&T. Accordingly,
separate financial records were not maintained and financial statements were
never prepared for the operation of these towers. In addition to land leases
that we will assume, we have estimated certain operating expenses we would
expect to incur based on our own experience with comparable towers. Such
estimates include expenses related to utilities, repairs and maintenance,
insurance and real estate taxes. These operating expenses are based on
management's best estimate and, as such, the actual expenses may be different
than the estimate presented.
-25-
<PAGE>
<TABLE>
<CAPTION>
AMERICAN TOWER CORPORATION
UNAUDITED PRO FORMA CONDENSED CONSOLIDATED STATEMENT OF OPERATIONS
Six Months Ended June 30, 1999
(in thousands, except per share data)
Adjustments
for Pro Forma Pro Forma,
Historical Transactions(a) as adjusted
---------- --------------- -----------
<S> <C> <C> <C>
Operating revenues............................ $101,561 $44,921 $146,482
Operating expenses excluding depreciation
and amortization and corporate, general
and administrative expenses................ 59,020 29,027 88,047
Depreciation and amortization................. 57,808 53,824 111,632
Corporate general and administrative
expenses................................... 4,140 1,750 5,890
--------- --------- ---------
Loss from operations.......................... (19,407) (39,680) (59,087)
--------- --------- ---------
Other (income) expense:
Interest expense........................... 11,539 48,020 59,559
Interest income and other, net............. (10,737) (10,737)
Minority interest in net losses of
subsidiaries............................. (79) (79)
--------- --------- ---------
Total other (income) expense.................. 723 48,020 48,743
--------- --------- ---------
(Loss) income before income taxes and
extraordinary loss......................... (20,130) (87,700) (107,830)
(Benefit) provision for income taxes(b)....... (747) (30,788) (31,535)
--------- --------- ---------
(Loss) income before extraordinary loss....... $ (19,383) $ (56,912) $ (76,295)
========= ========= =========
Basic and diluted (loss) per common share
before extraordinary loss.................. $ (0.14) N/A $ (0.49)
========= ========= =========
Basic and diluted common shares
outstanding(c)............................. 143,503 12,016 155,519
========= ========= =========
</TABLE>
See Notes to Unaudited Pro Forma Condensed
Consolidated Statement of Operations.
-26-
<PAGE>
NOTES TO UNAUDITED PRO FORMA CONDENSED CONSOLIDATED STATEMENT OF OPERATIONS
The unaudited pro forma condensed consolidated statement of operations for
the six months ended June 30, 1999 gives effect to the pro forma transactions
not consummated as of January 1, 1999. See "American Tower--Recent
Developments--Pending Transactions" under "Summary" on page 4 for a description
of the pending pro forma transactions and the Historical Financial Statements
for a description of the other pro forma transactions.
(a) To record the results of operations for the pro forma transactions. We
have adjusted the results of operations to: (1) reverse historical interest
expense; and (2) record an increase in net interest expense of $51.7 million for
the six months ended June 30, 1999 as a result of the increased debt after
giving effect to the proceeds of the February 1999 equity financings and the
notes placement.
We have also adjusted the results of operations to reverse historical
depreciation and amortization expense of $5.4 million for the six months ended
June 30, 1999 and record depreciation and amortization expense of $53.8 million
for the six months ended June 30, 1999 based on estimated allocations of
purchase prices. With respect to unallocated purchase price, we have determined
pro forma depreciation and amortization expense based on an expected average
life of 15 years. Debt discount is being amortized using the effective interest
method. Debt issuance costs are being amortized on a straight line basis over
the term of the obligation. Amortization of debt discount and issuance costs are
included within interest expense.
We have not carried forward corporate general and administrative expenses
of the prior owners into the pro forma condensed consolidated financial
statements. These costs represent duplicative facilities and compensation to
owners and/or executives we did not retain, including charges related to the
accelerated vesting of stock options and bonuses that were directly attributable
to the purchase transactions. Because we already maintain our own separate
corporate headquarters, which provides services substantially similar to those
represented by these costs, we do not expect them to recur following the
acquisition. After giving effect to an estimated $1.8 million of incremental
costs, we believe that we have existing management capacity sufficient to
provide the services without incurring additional incremental costs.
The following table sets forth the historical results of operations for the
pro forma transactions for the six months ended June 30, 1999 (in thousands).
<TABLE>
<CAPTION>
Total
Adjustments
OmniAmerica TeleCom February UNIsite AirTouch AT&T Notes Pro Forma for Pro Forma
Merger Merger Offerings Merger Transaction Transaction Placement Adjustments Transactions
------ ------ --------- ------ ----------- ----------- --------- ----------- ------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Operating revenues......... $ 12,246 $ 2,029 $ 3,408 $25,783(d) $ 1,455(e) $ 44,921
Operating expenses excluding
depreciation and
amortization, and
corporate general and
administrative expenses. 12,257 549 2,673 9,700(f) 3,848(f) 29,027
Depreciation and
amortization............ 2,372 1,201 1,871 $48,380 53,824
Corporate general and
administrative expenses. 2,882 10,173 5,148 (16,453) 1,750
-------- -------- ------- ------- ------- --------- --------
(Loss) income from
operations.............. (5,265) (9,894) (6,284) 16,083 (2,393) (31,927) (39,680)
Other (income) expense:
Interest expense, net... 746 521 $(1,499) 3,558 $ (3,671) 48,365 48,020
Interest income......... (14) (361) 375
Other, net.............. 816 (106) 381 (1,091)
-------- -------- ------- ------- ------- ------- ------- --------- --------
(Loss) income before
income taxes............ $ (6,813)$(10,309) $ 1,499 $(9,862) $16,083 $(2,393) $ 3,671 $ (79,576) $(87,700)
======== ======== ======= ======= ======= ======= ======= ========= ========
</TABLE>
(b) To record the tax effect of the pro forma adjustments and impact on
our estimated effective tax rate. The actual effective tax rate may be different
once we determine the final allocation of purchase price.
-27-
<PAGE>
(c) Includes shares of Class A common stock issued pursuant to: the
OmniAmerica merger--16.8 million, the TeleCom merger--3.9 million, and the
February offerings--26.2 million.
(d) Includes additional revenues to be recognized in connection with the
AirTouch lease agreement. Approximately $1.7 million of existing third-party
lease revenues has not been included.
(e) Includes additional revenues to be recognized in connection with the
AT&T and AT&T Wireless Services lease agreements. Approximately $4.4 million of
existing third-party lease revenues has not been included.
(f) The towers involved in each of these acquisitions were operated as
part of the wireless service businesses of AirTouch and AT&T. Accordingly,
separate financial records were not maintained and financial statements were
never prepared for the operation of these towers. In addition to land leases
that we will assume, we have estimated certain operating expenses we would
expect to incur based on our own experience with comparable towers. Such
estimates include expenses related to utilities, repairs and maintenance,
insurance and real estate taxes. These operating expenses are based on
management's best estimate and, as such, the actual expenses may be different
than the estimate presented.
-28-
<PAGE>
DESCRIPTION OF THE NOTES
The notes have been issued under two separate indentures, each dated as
of October 4, 1999, between us and The Bank of New York, as trustee. The
following statements are subject to the detailed provisions of the indentures
and are qualified in their entirety by reference to the indentures, copies of
which have been filed as exhibits to the registration statement of which this
prospectus is a part. Wherever particular provisions of the indentures are
referred to, those provisions are incorporated by reference as a part of the
statements made, and the statements are qualified in their entirety by that
reference. Certain terms that are defined in the indentures are used in this
section without definitions.
General
The notes represent our unsecured general obligations convertible into
Class A common stock as described under "Conversion." The principal amount of
the 6.25% notes is $300,000,000. The principal amount of the 2.25% notes is
$425,500,000, which is equivalent to total proceeds at the issue price of
$300,062,600. Notes may be in fully registered form only in denominations of
$1,000 or any multiple thereof. The notes mature on October 15, 2009, unless we
redeem them or you convert them earlier.
The indentures do not contain any restrictions on the payment of
dividends, the incurrence of debt or the repurchase of our equity securities or
any financial covenants.
The two series of notes bear interest at the respective annual rates
set forth on the cover page of this prospectus from their issue date. Interest
is payable semiannually on April 15 and October 15 of each year, commencing on
April 15, 2000, to holders of record at the close of business on the preceding
March 31 and September 30. We may pay interest by mailing a check to holders.
We will make payment of principal and any premium, and you may present
the notes for conversion, registration of transfer and exchange, without service
charge, at the office of our paying agent, initially the trustee, in New York,
and at the corporate trust office of the trustee in New York.
The 2.25% notes were issued at 70.52% or their principal amount at
maturity. The federal income tax consequences of this discount are discussed
under "Certain Federal Income Tax Consequences--Tax Consequences for U.S.
Holders--Original Issue Discount on the 2.25% Notes" on page 44. Original issue
discount means the difference between the issue price of the 2.25% notes and
their principal amount at maturity. The calculation of the accrual of original
issue discount in the period during which a 2.25% note remains outstanding will
be on a semi-annual bond equivalent basis, using a 360-day year composed of
twelve 30-day months. The accrual will begin on October 4, 1999, the first date
of issuance of 2.25% notes.
Conversion
You will be entitled to convert your notes, in denominations of $1,000
principal amount at maturity or multiples thereof, at any time, into shares of
Class A common stock. You determine the number of shares of Class A common stock
issuable upon conversion by dividing the issue price of the notes surrendered
for conversion by the conversion price. The conversion price is shown on the
cover of this prospectus.
Upon conversion, you will not be entitled to any payment or adjustment
on account of accrued and unpaid interest on notes or accrued original issue
discount on 2.25% notes. Our delivery to you of the fixed number of shares of
Class A common stock into which the note is convertible, together with any cash
payment in lieu of any fractional share of Class A common stock, will be deemed
to satisfy all of our obligations to pay the principal amount and accrued
interest on notes and accrued original issue discount on 2.25% notes. Thus, the
accrued interest and accrued original issue discount are deemed to be paid in
full rather than canceled, extinguished or forfeited.
-29-
<PAGE>
With respect to notes that have been acquired, all shares of Class A
common stock distributed upon conversion will be freely transferable without
restriction under the Securities Act, other than by our affiliates. Those shares
will be eligible for receipt on global form through the facilities of the
Depositary.
If you surrender notes for conversion during the period after any
interest record date and prior to the corresponding interest payment date, you
must pay us the interest payable on those notes, unless they have been called
for redemption on a redemption date on or prior to the interest payment date.
You may not convert notes called for redemption after the close of business on
the business day preceding the date fixed for redemption, unless we default in
payment of the redemption price. We will not issue fractional shares of Class A
common stock on a conversion. Rather, we will pay the converting holder an
amount of cash equal to the fair market value of the fractional interest, unless
payment in cash is prohibited by our indebtedness. In that case we will issue
fractional shares.
The initial conversion price per share of Class A common stock is
subject to adjustment in certain events, including upon the occurrence of an
adjustment event. We use the term "adjustment event" to mean the following:
o the issuance of Class A common stock as a dividend or distribution
on Class A common stock,
o certain subdivisions and combinations of the Class A common stock,
o the issuance to all holders of Class A common stock of certain
rights or warrants to purchase Class A common stock, and
o the distribution to all holders of Class A common stock of shares of
our capital stock, evidences of our indebtedness or other assets,
including securities. Excluded from the foregoing are shares of
Class A common stock and rights, warrants, dividends and
distributions referred to above and dividends and distributions in
connection with our liquidation or paid in cash.
To the extent permitted by law, we may reduce the conversion price by any amount
for any period of at least 20 days if our board of directors determines that
such reduction would be in our best interests. We may also reduce the conversion
price as our board of directors deems advisable to avoid or diminish any income
tax to holders of Class A common stock resulting from any dividend or
distribution of stock, or rights to acquire stock, or from any event treated as
such for income tax purposes. See "Certain Federal Income Tax Consequences--Tax
Consequences for U.S. Holders--Potential Distributions Resulting from Adjustment
of Conversion Price" on page 46.
If a reorganization event occurs, pursuant to which any holders of
Class A common stock shall be entitled to receive other securities, cash or
other property, then we shall make appropriate provision so that you will have
the right to convert notes only into the kind and amount of the securities, cash
or other property you would have received had you converted your notes
immediately prior to the reorganization event. We use the term "reorganization
event" to mean the following:
o any recapitalization or reclassification of shares of Class A common
stock, other than changes involving par value, or as a result of a
subdivision or combination of the Class A common stock,
o any consolidation or merger involving our company, other than one
that does not result in a reclassification, conversion, exchange or
cancellation of Class A common stock,
o any sale or transfer of all or substantially all of our assets, or
o any compulsory share exchange pursuant to which any holders of Class
A common stock shall be entitled to receive other securities, cash
or other property.
-30-
<PAGE>
Any company that succeeds to us or acquires our assets will be required to
provide in its governing documents the foregoing right and also to provide for
other rights essentially equivalent to those described under this "Conversion"
heading.
Payment of Excess Cash Dividends
If we declare and pay excess cash dividends on the Class A common stock,
then we will pay to you an amount equal to the excess, based on the number of
shares of Class A common stock that you would have received had you converted
all of your notes, unless you convert and receive those dividends as a holder of
Class A common stock. We use the term "excess cash dividends" to mean cash
dividends in an annualized amount per share that exceeds the greater of (a) the
annualized amount per share of the immediately preceding cash dividend on the
Class A common stock, appropriately adjusted for anti-dilution type events, and
(b) 15% of the last sale price of the Class A common stock as of the trading day
immediately preceding the date of declaration of that dividend. Our credit
facilities currently restrict us from paying cash dividends or making excess
cash dividend payments on the notes.
Change in Control
If we experience a change in control, then you will have the right to
require us to repurchase for cash all or a portion of your notes. The repurchase
price of the 6.25% notes is equal to the principal amount of the notes, plus
accrued and unpaid interest, through the day prior to repurchase. The cash
repurchase price of the 2.25% notes is their accreted value, plus accrued and
unpaid interest, through the day prior to repurchase. The repurchase day is 45
days after notice to you. By accreted value we mean the issue price of the 2.25%
notes plus accrued original issue discount. This right to require us to
repurchase the notes will exist upon the occurrence of any change in control
whether or not the relevant transaction has been approved by our management. It
may not be waived by our management. Your exercise of this right will be
irrevocable. We currently must obtain bank approval under our credit facilities,
which approval may not be forthcoming, in order to make any change in control
payments before December 2006.
Your right to require us to repurchase the notes upon a change in control
will not apply if either:
o the last sale price of the Class A common stock for five of the ten
trading days before the date of the change in control equals or
exceeds 105% of the applicable conversion price; or
o the consideration paid for the Class A common stock in a transaction
constituting the change in control consists of cash, securities that
are traded on a national securities exchange or quoted on the National
Association of Securities Dealers, Inc. Automated Quotation System or
the Nasdaq National Market, or a combination of cash and such
securities, and the aggregate fair market value of such consideration
is a least 105% of the conversion price in effect immediately before
the closing of that transaction.
The existence of the right to require us to repurchase the notes upon a
change in control may deter certain mergers, tender offers or other takeover
attempts and may thereby adversely affect the market price of the Class A common
stock.
By a "change in control" we mean:
o any person or group, other than a permitted owner, acquires direct or
indirect beneficial ownership of shares of our capital stock
sufficient to entitle such person to exercise more than 50% of the
total voting power of all classes of our capital stock entitled to
vote generally in elections of directors; an acquisition could occur
by means of an exchange offer, liquidation, tender offer,
consolidation, merger, combination, reclassification, recapitalization
or otherwise, or
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o we sell, lease, exchange or otherwise transfer, in one transaction or
a series of related transactions, all or substantially all of our
assets to any person or group, other than to a permitted owner.
However, a transaction of a type described above that results in the Class A
common stock no longer being listed on a stock exchange or traded on the Nasdaq
National Market would also be treated as a change in control even if a permitted
owner were involved.
We use a "permitted owner" to mean one or more of our principal
stockholders or any person employed by us in a management capacity as of the
original offering of the notes, or any group of which any of them is a member.
We use the terms "person" and "group" as those terms are used in Section
13(d)(3) or 14(d)(2) of the Exchange Act. Our "principal stockholders" are
Steven B. Dodge, Thomas H. Stoner, Hicks, Muse, Tate & Furst Incorporated, Cox
Telecom Towers, Inc. and Clear Channel Communications, Inc. and includes their
affiliates.
Optional Redemption
6.25% notes. We may not redeem 6.25% notes on or prior to October 22, 2002.
After October 22, 2002, at our option, we may redeem 6.25% notes, in whole or in
part, at the following redemption prices, expressed as a percentage of the
principal amount. We are also required to pay any accrued and unpaid interest
upon redemption.
Twelve Months (or shorter period) Commencing Redemption Price
-------------------------------------------- ----------------
October 15, 2002................................... 103.125%
October 15, 2003................................... 102.083
October 15, 2004................................... 101.042
October 15, 2005 and thereafter.................... 100.000
2.25% notes. We may not redeem 2.25% notes on or prior to October 22, 2003.
After October 22, 2003, at our option, we may redeem 2.25% notes, in whole or in
part, at the applicable redemption price. The table below shows redemption
prices of notes per $1,000 principal amount at maturity at October 22, 2003, at
October 15, 2004, at each following October 15 prior to maturity, and at
maturity on October 15, 2009. The prices reflect the accrued original issue
discount calculated through each date. The redemption price of a 2.25% note
redeemed between these dates would include an additional amount reflecting the
additional original issue discount accrued since the next preceding date in the
table to the actual redemption date.
<TABLE>
<CAPTION>
(2) (3)
(1) Original Issue Redemption Price
Redemption Date Note Issue Price Discount (1)+(2)
- --------------- ---------------- -------- -------
<S> <C> <C> <C>
October 22, 2003.................................. $705.20 $97.73 $802.93
October 15, 2004.................................. 705.20 125.28 830.48
October 15, 2005.................................. 705.20 155.14 860.34
October 15, 2006.................................. 705.20 186.90 892.10
October 15, 2007.................................. 705.20 220.68 925.88
October 15, 2008.................................. 705.20 256.60 961.80
October 15, 2009 (maturity)....................... 705.20 294.80 1,000.00
</TABLE>
General. We must give holders at least 20 and not more than 60 calendar
days' notice of the redemption date.
Repurchase of Notes at the Option of the Holder
6.25% notes. On October 22, 2006, we will be required to repurchase, at
your option, any outstanding 6.25% note if certain conditions are met. If you
desire us to repurchase your 6.25% notes, you must give, and not withdraw, a
written repurchase notice to the trustee at any time from the opening of
business on the date that is 20 business days prior to October 22, 2006 until
the close of business on October 22, 2006. The repurchase price of a
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6.25% note will be equal to its principal amount together with accrued and
unpaid interest through the repurchase date.
2.25% notes. On October 22, 2003, we will be required to repurchase, at
your option, any outstanding 2.25% note if certain conditions are met. If you
desire us to repurchase your 2.25% notes, you must give, and not withdraw, a
written repurchase notice to the trustee at any time from the opening of
business on the date that is 20 business days prior to October 22, 2003 until
the close of business on October 22, 2003. The repurchase price of a 2.25% note
will be equal to $802.93, which is its accreted value on October 22, 2003, in
other words, its issue price plus accrued original issue discount, together with
accrued and unpaid interest through the repurchase date.
General. We may, at our option, elect to pay the repurchase price in cash
or shares of Class A common stock, or any combination thereof.
We will be required to give notice on a date not less than 20 business days
prior to the relevant repurchase date to you stating, among other things:
o what portion of the notes we will repurchase for cash and what portion
for Class A common stock,
o if we elect to use Class A common stock, how we calculate its value,
and
o the procedures that you must follow to require us to purchase notes
from you.
If you elect to require us to purchase notes, the repurchase notice given
by you shall state:
o the notes to be delivered by you for purchase by us,
o the portion of the principal amount at maturity of notes to be
purchased; this portion must be $1,000 principal amount at maturity or
an integral multiple of $1,000,
o that the notes are to be purchased by us pursuant to the applicable
provisions of the notes, and
o in the event we elect to pay any portion of the repurchase price in
Class A common stock but the repurchase price is ultimately to be paid
entirely in cash because the conditions to payment of any portion of
the repurchase price in Class A common stock are not satisfied,
whether you elect: (1) to withdraw your repurchase notice as to some
or all of the notes, stating the principal amount at maturity and
certificate numbers of the notes as to which such withdrawal relates,
or (2) to receive cash in respect of all or the applicable portion of
the repurchase price.
If you fail to indicate in the repurchase notice and in any written notice
of withdrawal your choice with respect to your election, you shall be deemed to
have elected to receive cash in respect of the entire repurchase price.
You may withdraw any repurchase notice by a written notice of withdrawal
delivered to the applicable trustee prior to 10:00 a.m. on the repurchase date.
The notice of withdrawal must state the principal amount at maturity, and the
certificate numbers of the notes as to which the withdrawal notice relates and
the principal amount at maturity, if any, which remains subject to the
repurchase notice.
If we elect to pay any portion of the repurchase price in shares of Class A
common stock, we will determine the number of shares of Class A common stock to
be delivered by dividing that portion by the Market Price of a share of Class A
common stock. Our credit facilities require us to make the entire payment in
Class A common stock.
By "Market Price" we mean, in effect, the average of the Sale Prices of the
Class A common stock for the five Trading Day period ending on the third
business day prior to the applicable repurchase date, appropriately adjusted
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to take into account the occurrence of certain events that would result in an
adjustment of the conversion price with respect to the Class A common stock.
By "Sale Price" of the Class A common stock on any date we mean (a) the
closing per share sale price on that date as reported in composite transactions
for the principal United States securities exchange on which the Class A common
stock is traded, (b) if the Class A common stock is not listed on a United
States national or regional securities exchange, as reported by the National
Association of Securities Dealers Automated Quotation System or (c) if no
closing sale price is reported, the average of the bid and ask prices or, if
more than one in either case, the average of the average bid and the average ask
prices will govern.
Because the Market Price of the Class A common stock is determined prior to
the applicable repurchase date, you will bear the market risk with respect to
the value of the Class A common stock to be received from the date we determine
the Market Price to the repurchase date.
Our right to repurchase notes with Class A common stock is subject to our
satisfying various conditions, including:
o the registration of the Class A common stock under the Securities Act
and the Exchange Act, if required; and
o any necessary qualification or registration under applicable state
securities law or the availability of an exemption from that
qualification and registration.
When we determine the actual number of shares of Class A common stock in
accordance with the foregoing provisions, we will publish that information in a
daily newspaper of national circulation.
If the foregoing conditions are not satisfied with respect to a holder or
holders prior to the close of business on the repurchase date, we will pay you
the repurchase price of your tendered notes entirely in cash. We may not change
the form of consideration to be paid once we have given you the applicable
notice, except as described in the prior sentence.
We will comply with the provisions of Rule 13e-4, Rule 14e-1 and any other
tender offer rules under the Exchange Act that may then be applicable and will
file Schedule 13E-4 or any other schedule required thereunder in connection with
any offer by us to purchase notes at your option.
No notes may be purchased for cash at your option if an event of default
continues with respect to the notes described under "Events of Default and
Remedies" immediately below, other than a default in the payment of the
repurchase price with respect to the notes.
Payment of the repurchase price for a note for which a repurchase notice
has been delivered and not validly withdrawn is conditioned upon delivery of the
note, together with necessary endorsements to the applicable trustee at any time
after delivery of such repurchase notice. Payment of the repurchase price for
the note will be made promptly following the later of the repurchase date or the
delivery of the note. If the relevant trustee holds, in accordance with the
terms of its indenture, money or securities sufficient to pay the repurchase
price of the note on the business day following the repurchase date, then,
immediately after the repurchase date, the note will cease to be outstanding and
interest and, in the case of 2.25% notes, original issue discount will cease to
accrue, whether or not you deliver the note to the trustee. In that event, all
of your other rights shall terminate, other than the right to receive the
repurchase price upon delivery of your note.
Our ability to redeem notes and to repurchase notes upon a change in
control or at your option, as described in the three preceding sections, is
restricted under the terms of our credit facilities and is effectively
prohibited during the existence of a default under them. See Notes to
Consolidated Financial Statements of American Tower in the 1998 Annual Report.
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Events of Default and Remedies
An event of default is defined in each indenture as being any of the
following:
o our default in payment of the principal amount at maturity, issue
price plus accrued original issue discount (2.25% notes only),
repurchase price, optional redemption price or any change in control
repurchase price when due, upon maturity, acceleration, redemption or
otherwise, on any of the notes,
o our default for 30 days in payment of any installment of interest on
the notes,
o our default for 60 days after notice in the observance or performance
of any other covenants in the applicable indenture, and
o certain events involving our bankruptcy, insolvency or reorganization.
Each indenture provides that if any event of default exists, the applicable
trustee or the holders of not less than 25% in principal amount of the notes of
a relevant series then outstanding may declare the relevant amount of all notes
of that series to be due and payable immediately. The relevant amount for the
6.25% notes is their principal amount. The relevant amount for the 2.25% notes
is the sum of their issue price plus accrued original issue discount from their
date of issue to the date of acceleration. However, if we cure all defaults,
except the nonpayment of principal and interest with respect to any notes of
that series that become due by acceleration, and certain other conditions are
met, the holders of a majority in principal amount of notes of that series then
outstanding may rescind that acceleration. Holders may similarly waive past
defaults.
The holders of a majority in principal amount of the notes of the relevant
series then outstanding have the right to direct the time, method and place of
conducting any proceedings for any remedy available to the trustee, subject to
certain limitations specified in the relevant indenture.
Each indenture provides that the trustee shall give notice to the holders
of notes of any default, except in payment of principal or interest with respect
to the notes, if the trustee, in good faith, considers it in the interest of the
holders of the notes of that series to do so.
Modification of the Indentures
Each indenture contains provisions permitting us and the trustee, with the
consent of the holders of not less than a majority in principal amount of the
notes of the relevant series at the time outstanding, to modify the indenture
for that series and the rights of the holders of the notes of that series.
However, without the consent of the holder of each note so affected, we cannot
make any modification that will:
o extend the final maturity of any notes,
o reduce the rate or extend the time for payment of interest,
o reduce the principal amount or any premium,
o change the accrual rate or time of payment of original issue discount
on the 2.25% notes,
o change the provisions for redemption at the option of the holders in a
manner adverse to the holders,
o impair or affect the right of a holder to institute suit for the
payment of principal, interest or any premium,
o change the currency in which the notes are payable,
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o impair the right to convert the notes into Class A common stock, or
o reduce the percentage of notes of that series, the consent of the
holders of which is required for any modification.
Global Notes, Book-Entry Form
The notes will be represented by global notes, except as set forth below
under "--Certificated Notes." The global notes will be deposited with, or on
behalf of, DTC and registered in the name of Cede & Co., as DTC's nominee.
Beneficial interests in the global notes will be exchangeable for definitive
certificated notes only in accordance with the terms of the relevant indenture.
DTC is a limited-purpose trust company organized under the New York Banking
Law, a "banking organization" within the meaning of the New York Banking Law, a
member of the Federal Reserve System, a "clearing corporation" within the
meaning of the New York Uniform Commercial Code, and a "clearing agency"
registered pursuant to the provisions of Section 17A of the Exchange Act. DTC
holds securities that its participants deposit with DTC. DTC also facilitates
the settlement among participants of securities transactions, such as transfers
and pledges, in deposited securities through electronic computerized book-entry
changes in participants' accounts, thereby eliminating the need for physical
movement of securities certificates. Direct participants include securities
brokers and dealers, banks, trust companies, clearing corporations, and certain
other organizations. DTC is owned by a number of its direct participants and by
the NYSE, the American Stock Exchange, Inc. and the NASD. Access to DTC's system
is also available to others such as securities brokers and dealers, banks and
trust companies that clear through or maintain a custodial relationship with a
direct participant, either directly or indirectly. The rules applicable to DTC
and its participants are on file with the SEC.
Purchases of interests in global notes under DTC's system must be made by
or through direct participants, which will receive a credit for the interest in
the global notes on DTC's records. The ownership interest of each actual
purchaser of each interest in the global notes (we call it the "beneficial
owner") is in turn to be recorded on the direct and indirect participants'
records. Beneficial owners will not receive written confirmation from DTC of
their purchase, but beneficial owners are expected to receive written
confirmations providing details of the transaction, as well as periodic
statements of their holdings, from the direct or indirect participant through
which the beneficial owner entered into the transaction. Transfers of ownership
interests in the global notes are to be accomplished by entries made on the
books of participants acting on behalf of beneficial owners. Beneficial owners
will not receive certificates representing their ownership interests in global
notes, except in the event that use of the book-entry system for one or more
global notes is discontinued.
To facilitate subsequent transfers, all global notes deposited by
participants with DTC are registered in the name of DTC's partnership nominee,
Cede & Co. The deposit of global notes with DTC and their registration in the
name of Cede & Co. effects no change in beneficial ownership. DTC has no
knowledge of the actual beneficial owners of the global notes. DTC's records
reflect only the identity of the direct participants to whose accounts such
global notes are credited, which may or may not be the beneficial owners. The
participants will remain responsible for keeping account of their holdings on
behalf of their customers.
Conveyance of notices and other communications by DTC to direct
participants, by direct participants to indirect participants and by direct
participants and indirect participants to beneficial owners will be governed by
arrangements among them, subject to any statutory or regulatory requirements as
may be in effect.
Redemption notices will be sent to Cede & Co. If less than all of the
global notes are being redeemed, and unless otherwise notified by either us or
the relevant trustee, DTC's practice is to determine by lot the amount of the
interest of each direct participant in such issue to be redeemed.
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Neither DTC nor Cede & Co. will consent or vote with respect to global
notes. Under its usual procedures, DTC will mail an omnibus proxy to us as soon
as possible after the record date. The omnibus proxy assigns Cede & Co.'s
consenting or voting rights to those direct participants to whose accounts the
global notes are credited on the record date. This is identified in a listing
attached to the omnibus proxy.
Payment of interest on and the redemption price of the global notes will be
made to DTC. DTC's practice is to credit direct participants' accounts on the
payment date in accordance with their respective holdings shown on DTC's records
unless DTC has reason to believe that it will not receive payment on the payment
date. Payments by participants to beneficial owners will be governed by standing
instructions and customary practices as is the case with securities held for the
accounts of customers in bearer form or registered in "street name" and will be
the responsibility of such participant and not of DTC, any agents or us. The
foregoing is subject to any statutory or regulatory requirements as may be in
effect from time to time. Payment of interest on and the redemption price of the
global notes to DTC is our responsibility. Disbursement of payments to direct
participants will be the responsibility of DTC. Disbursement of payments to the
beneficial owners will be the responsibility of direct and indirect
participants.
A beneficial owner must give notice to elect to have its interest in the
global notes purchased or tendered, through its participant, to the paying
agent, and must effect delivery of this interest by causing the direct
participant to transfer the participant's interest in the global notes, on DTC's
records, to the paying agent. The requirement for physical delivery of global
notes in connection with a demand for purchase of a mandatory purchase will be
deemed satisfied when the ownership rights in the global notes are transferred
by direct participants on DTC's records.
DTC may discontinue providing its services as securities depositary with
respect to the global notes at any time by giving reasonable notice to us or to
our agents. Under these circumstances, or if DTC is at any time unable to
continue as depositary and a successor depositary is not appointed by us within
90 days, we will cause notes to be issued in definitive form in exchange for the
global notes.
DTC's management is aware that some computer applications, systems and the
like for processing data, which we refer to collectively as systems, that are
dependent upon calendar dates may encounter Year 2000 problems. DTC has informed
its participants and other members of the financial community that it has
developed and is implementing a program so that its systems, relating to the
timely payment of distributions to securityholders, book-entry deliveries and
settlement of trades within DTC, continue to function appropriately. This
program includes a technical assessment and a remediation plan, each of which is
complete. Additionally, DTC's plan includes a testing phase, which is expected
to be completed within appropriate time frames.
However, DTC's ability to perform properly its services is also dependent
upon other parties, including issuers and their agents, as well as third-party
vendors from whom DTC licenses software and hardware, and third-party vendors on
whom DTC relies for information or the provision of services. This includes
telecommunication and electrical utility service providers. DTC has informed the
financial community that it is in contact with and will continue to contact
third-party vendors from whom DTC acquires services to:
o impress upon them the importance of such services being Year 2000
compliant, and
o determine the extent of their efforts for Year 2000 remediation and,
as appropriate, testing of their services.
In addition, DTC is in the process of developing contingency plans as it deems
appropriate.
According to DTC, the foregoing information with respect to DTC has been
provided to the financial community for informational purposes only and is not
intended to serve as a representation, warranty or contract modification of any
kind. The information in this section concerning DTC and DTC's book-entry system
has been obtained from sources that we believe to be reliable, but we take no
responsibility for the accuracy.
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Neither we, either trustee, any paying agent nor the registrar for the
notes will have any responsibility or liability for any aspect of the records
relating to or payments made on account of beneficial ownership interest in a
global security or for maintaining, supervising or reviewing any records
relating to beneficial ownership interests.
Certificated Notes
The notes represented by the global securities are exchangeable for
certificated notes in definitive form of the same series and of like tenor if:
o DTC notifies us that it is unwilling or unable to continue as
depositary for the global securities and a successor is not appointed
within 90 days or if at any time DTC ceases to be a clearing agency
registered under the Exchange Act,
o an event of default has occurred and is continuing, or
o we, in our discretion and at any time, determine not to have all of
the notes represented by the global securities.
Any notes that are exchangeable pursuant to the preceding sentence are
exchangeable for certificated notes issuable in authorized denominations and
registered in those names as DTC shall direct. Subject to the foregoing, the
global securities are not exchangeable, except for global securities of the same
aggregate denominations to be registered in the name of DTC or its nominee.
Concerning the Trustee
The Bank of New York is a lender under our credit facilities and may
provide other commercial banking services to us in the future.
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DESCRIPTION OF CAPITAL STOCK
The description below summarizes the more important terms of our capital
stock. Because this section is a summary, it does not describe every aspect of
the capital stock. This summary is subject to and qualified in its entirety by
reference to the provisions of our restated certificate of incorporation, as
amended. We refer to it as the "restated certificate." A copy of the restated
certificate has been filed as an exhibit to the registration statement of which
this prospectus is a part. Wherever particular defined terms or provisions of
the restated certificate are referred to, those terms and provisions are
incorporated by reference as a part of the statements made, and the statements
are qualified in their entirety by that reference.
General
Our authorized capital stock consists of 20,000,000 shares of preferred
stock, $.01 par value per share, 500,000,000 shares of Class A common stock,
$.01 par value per share, 50,000,000 shares of Class B common stock, $.01 par
value per share, and 10,000,000 shares of Class C common stock, $.01 par value
per share. The number of outstanding shares of common stock as of October 1,
1999 is shown on page 18.
Preferred Stock
General. Our board of directors will determine the designations,
preferences, limitations and relative rights of the 20,000,000 authorized and
unissued shares of preferred stock, including:
o the distinctive designation of each series and the number of shares
that will constitute the series,
o the voting rights, if any, of shares of the series,
o the dividend rate on the shares of the series, any restriction,
limitation or condition upon the payment of the dividends, whether
dividends will be cumulative, and the dates on which dividends are
payable,
o the prices at which, and the terms and conditions on which, the shares
of the series may be redeemed, if the shares are redeemable,
o the purchase or sinking fund provisions, if any, for the purchase or
redemption of shares of the series,
o any preferential amount payable upon shares of the series upon our
liquidation or the distribution of our assets,
o the price or rates of conversion at which, and the terms and
conditions on which the shares of the series may be converted into
other securities, if the shares are convertible, and
o whether the series can be exchanged, at our option, into debt
securities, and the terms and conditions of any permitted exchange.
The issuance of preferred stock, or the issuance of rights to purchase
preferred stock, could discourage an unsolicited acquisition proposal.
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Common Stock
Dividends. Holders of record of shares of common stock on the record date
fixed by our board of directors are entitled to receive dividends as declared by
our board of directors out of funds legally available for the purpose. No
dividends may be declared or paid in cash or property on any share of any class
of common stock, however, unless simultaneously the same dividend is declared or
paid on each share of the other classes of common stock. Dividends in the form
of shares of stock of any company, including our company or any of our
subsidiaries, are excepted from that requirement. In that case, the shares may
differ as to voting rights to the extent that voting rights now differ among the
different classes of common stock. In the case of any dividend payable in shares
of common stock, holders of each class of common stock are entitled to receive
the same percentage dividend, payable in shares of that class, as the holders of
each other class. Dividends and other distributions on common stock are also
subject to the rights of holders of any series of preferred stock or debt that
may be outstanding from time to time. See "--Dividend Restrictions" on the
following page.
Voting Rights. Holders of shares of Class A common stock and Class B common
stock have the exclusive voting rights and will vote as a single class on all
matters submitted to a vote of the stockholders. The foregoing is subject to the
requirements of Delaware corporate law, special provisions governing election of
directors and the rights of holders of any series of preferred stock that may be
outstanding from time to time. Each share of Class A common stock is entitled to
one vote and each share of Class B common stock is entitled to ten votes. The
holders of the Class A common stock, voting as a separate class, have the right
to elect two independent directors. The Class C common stock is nonvoting except
as otherwise required by Delaware corporate law.
Delaware corporate law requires the affirmative vote of the holders of a
majority of the outstanding shares of any class or series of common stock to
approve, among other things, a change in the designations, preferences and
limitations of the shares of that class or series. The restated certificate,
however, requires the affirmative vote of the holders of not less than 66 2/3%
of the Class A common stock and Class B common stock, voting as a single class,
to amend most of the provisions of the restated certificate, including those
relating to the provisions of the various classes of common stock,
indemnification of directors, exoneration of directors for certain acts and the
super-majority provision.
The restated certificate:
o limits the aggregate voting power of Steven B. Dodge and his
controlled entities to 49.99% of the aggregate voting power of all
shares of capital stock entitled to vote generally for the election of
directors, less the voting power represented by the shares of Class B
common stock acquired by Thomas H. Stoner, a director, and purchasers
affiliated with him in the January 1998 private offering and owned by
them or any of their controlled entities or family members at the
applicable time,
o prohibits future issuances of Class B common stock, except upon
exercise of then outstanding options and pursuant to stock dividends
or stock splits,
o limits transfers of Class B common stock to permitted transferees,
o provides for automatic conversion of the Class B common stock to Class
A common stock if the aggregate voting power of Mr. Dodge, Mr. Stoner
and their respective controlled entities fall below either (a) 50% of
Mr. Dodge's initial aggregate voting power on June 8, 1998; which was
approximately 42.6%; or (b) 20% of the aggregate voting power of all
shares of common stock at the time outstanding, and
o requires the holders of a majority of Class A common stock to approve
amendments adversely affecting the Class A common stock.
On October 1, 1999, our directors and executive officers, together with
their affiliates, owned beneficially approximately 45% of the combined voting
power of our common stock. On that date, Mr. Dodge, together with his
affiliates, owned beneficially approximately 29% of the combined voting power.
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Conversion Provisions. Shares of Class B common stock and Class C common
stock are convertible, at any time at the option of the holder, on a share for
share basis into shares of Class A common stock. The present owner of Class C
common stock can convert that stock only upon the occurrence of a conversion
event or with the consent of our board of directors. Shares of Class B common
stock automatically convert into shares of Class A common stock upon any sale,
transfer, assignment or other disposition other than (a) to permitted
transferees, or (b) pursuant to pledges but not to the pledgee upon foreclosure.
Permitted transferees includes certain family members and other holders of Class
B common stock.
Liquidation Rights. Upon our liquidation, dissolution or winding up the
holders of each class of common stock are entitled to share ratably in all
assets available for distribution after payment in full of creditors and payment
in full to holders of preferred stock then outstanding of any amount required to
be paid to them.
Other Provisions. The holders of common stock are not entitled to
preemptive or subscription rights. The shares of common stock presently
outstanding are validly issued, fully paid and nonassessable.
In any merger, consolidation or business combination, the holders of each
class of common stock must receive the identical consideration to that received
by holders of each other class of common stock, except if shares of common stock
or common stock of any other company are distributed, the shares may differ as
to voting rights to the same extent that voting rights then differ among the
different classes of common stock.
No class of common stock may be subdivided, consolidated, reclassified or
otherwise changed unless, concurrently, the other classes of common stock are
subdivided, consolidated, reclassified or otherwise changed in the same
proportion and in the same manner.
Dividend Restrictions
Our borrower subsidiaries are prohibited under the terms of their credit
facilities from paying cash dividends or making other distributions on, or
making redemptions, purchases or other acquisitions of, their capital stock or
other equity interests, including preferred stock, except that, beginning on
April 15, 2002, if no default exists or would be created thereby under the
credit facilities, our borrower subsidiaries may pay cash dividends or make
other distributions to the extent that restricted payments, as defined in the
credit facilities, do not exceed (a) 50% of excess cash flow, as defined in the
credit facilities, for the preceding calendar year or (b) 50% of the net
proceeds of any debt or equity offering after June 16, 1998.
Delaware Business Combination Provisions
Under Delaware corporate law, certain "business combinations," including
the issuance of equity securities, between a Delaware corporation and any
"interested stockholder" must be approved by the holders of at least 66 2/3% of
the voting stock not owned by the interested stockholder if it occurs within
three years of the date the person became an interested stockholder. The voting
requirement does not apply, however, if, before the acquisition, the
corporation's board of directors approved either the business combination or the
transaction which resulted in the person becoming an interested stockholder.
"Interested stockholder" means any person who owns, directly or indirectly, 15%
or more of the voting power of the corporation's shares of capital stock. The
provision does not apply to Mr. Dodge because our board of directors approved
the transaction pursuant to which he became an interested stockholder.
Listing of Class A Common Stock
Our Class A common stock is traded on the NYSE under the symbol "AMT."
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Transfer Agent and Registrar
The transfer agent and registrar for the common stock is Harris Trust and
Savings Bank, 311 West Monroe Street, Chicago, Illinois 60606 (telephone number
(312) 461-4600).
SELLING SECURITYHOLDERS
The notes were originally issued by us and sold by the initial
purchasers in private transactions exempt from the registration requirements of
the Securities Act to "qualified institutional buyers" (as defined in Rule 144A
under the Securities Act). The selling securityholders, which term includes
their transferees, pledgees, donees or their successors, may from time to time
offer and sell pursuant to this prospectus any or all of the notes and common
stock issuable upon conversion of the notes.
Prior to any use of this prospectus in connection with a resale of the
notes and/or the Class A common stock issuable upon conversion of the notes,
this prospectus will be supplemented to set forth the name and number of shares
beneficially owned by the selling securityholder intending to sell notes and/or
Class A common stock and the principal amount of notes and/or number of shares
of Class A common stock to be offered. The prospectus supplement will also
disclose whether any selling securityholder selling in connection with the
prospectus supplement has held any position or office with, been employed by or
otherwise has had a material relationship with us or any of our affiliates
during the three years prior to the date of the prospectus supplement.
CERTAIN FEDERAL INCOME TAX CONSEQUENCES
The following summary of certain federal income tax consequences is based
upon the Internal Revenue Code of 1986, as amended (the "Code"), Treasury
regulations, and rulings and decisions now in effect, all of which are subject
to change or differing interpretations. We have not sought a ruling from the
Internal Revenue Service with respect to any matter described in this summary.
We can provide no assurance that the IRS or a court will agree with the
statements made in this summary. This summary applies to you only if you hold
the notes and Class A common stock as a capital asset. A capital asset is
generally an asset held for investment rather than as inventory or as property
used in a trade or business. The summary also does not discuss the particular
tax consequences that might be relevant to you if you are subject to special
rules under the federal income tax laws.
Special rules apply, for example, if you are:
o a bank, life insurance company, regulated investment company, or other
financial institution,
o a broker or dealer in securities or foreign currency,
o a person that has a functional currency other than the U.S. dollar,
o a person who acquires the notes or Class A common stock in connection
with your employment or other performance of services,
o a person subject to alternative minimum tax,
o a person who owns the notes or Class A common stock as part of a
straddle, hedging transaction, conversion transaction, or constructive
sale transaction,
o a tax-exempt entity, or
o an expatriate.
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In addition, the following summary does not address all possible tax
consequences. In particular, it does not discuss any estate, gift, state, local,
or foreign tax consequences. For all these reasons, we urge you to consult with
your tax advisor about the federal income tax and other tax consequences of the
acquisition, ownership and disposition of the notes and Class A common stock.
As explained below, the federal income tax consequences of acquiring,
owning and disposing of the notes and Class A common stock depend on whether or
not you are a "U.S. holder." For purposes of this summary, you are a U.S. holder
if you are a beneficial owner of the notes or Class A common stock and for
federal income tax purposes are:
o a citizen or resident of the United States, including an alien
individual who is a lawful permanent resident of the United States or
meets the substantial presence residency test under the federal income
tax laws,
o a corporation, partnership or other entity treated as a corporation or
partnership for federal income tax purposes, that is created or
organized in or under the laws of the United States, any of the fifty
states or the District of Columbia, unless otherwise provided by
Treasury regulations,
o an estate the income of which is subject to federal income taxation
regardless of its source, or
o a trust if a court within the United States is able to exercise
primary supervision over the administration of the trust and one or
more United States persons have the authority to control all
substantial decisions of the trust, or electing trusts in existence on
August 20, 1996 to the extent provided in Treasury regulations,
and if your status as a U.S. holder is not overridden under the provisions of an
applicable tax treaty. Conversely, you are a "non-U.S. holder" if you are a
beneficial owner of the notes or Class A common stock and are not a U.S. holder.
In General
The notes will be treated as indebtedness for federal income tax purposes.
This summary discussion assumes that the IRS will respect this classification.
Payments you might receive on the notes that are for excess cash
dividends paid on Class A common stock should be treated as potential contingent
interest payments and not as distributions on stock potentially taxable as
ordinary dividend income. Further, this summary discussion reflects our
expectation that only a remote possibility exists that (a) you will receive
payments for excess cash dividends on Class A common stock or (b) you will
receive additional interest because of a registration default.
Tax Consequences for U.S. Holders
Interest and Excess Cash Dividend Payments on the Notes
The 6.25% notes and the 2.25% notes are required to pay interest at a
stated fixed rate. You must generally include this stated interest in your gross
income as ordinary interest income:
o when you receive it, if you use the cash method of accounting for
federal income tax purposes, or
o when it accrues, if you use the accrual method of accounting for
federal income tax purposes.
Purchase price for a note that is allocable to prior accrued stated interest may
be treated as offsetting a portion of the interest income from the next
scheduled stated interest payment on the note.
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If you receive a payment equivalent to an excess cash dividend paid on
our Class A common stock or a payment of additional interest for a registration
default, and if the chances of another payment like that occurring in the future
remain remote, then you should report the payment as ordinary interest income in
the manner discussed above, and the tax consequences of the notes should
otherwise remain unchanged. In contrast, if one or more of these types of
payments cease to remain remote in the future, then the notes would be treated
as having been retired and reissued with original issue discount, and the tax
consequences of holding the notes would then be governed by special original
issue discount rules for contingent payment debt instruments. We urge you to
consult your tax advisor on the consequences to you if these events, which we
believe are remote, should occur.
Original Issue Discount on the 2.25% notes
In addition to the stated interest which you must include in income, the
2.25% notes will be treated as having original issue discount ("OID"), which
will generally be taxable to you as interest income. The amount of OID on a
2.25% note is the excess of its stated redemption price at maturity over its
issue price. A 2.25% note's stated redemption price at maturity is the sum of
all payments expected to be received under the terms of the 2.25% note from the
time of issue until maturity, except for the stated interest which is
unconditionally payable semiannually. Its issue price is 70.52% of the principal
amount at maturity.
You will be required under section 1272 of the Code to include in gross
income, irrespective of your method of accounting, a portion of the OID for each
year during which you hold a 2.25% note, even though the cash to which the
income is attributable may not be received until maturity or redemption of the
2.25% note. The timing of the accrual of OID is based on the 2.25% note's yield
to maturity, which is its economic, not its stated, interest rate. The economic
interest rate is equal to the present value discount rate at which all expected
payments on the 2.25% note would have an aggregate present value equal to its
issue price. The yield to maturity of the 2.25% notes is 6.25%, calculated on a
semi-annual basis from October 4, 1999. The amount of any OID included in income
for a taxable year would be calculated by accruing and compounding interest at
the economic interest rate at semiannual intervals corresponding to the payments
of stated interest on the 2.25% notes. This is known as the "constant yield
method" of accruing interest. The excess of the determined constant yield over
the stated interest is the amount of OID included in income for that semiannual
period. The semiannual amounts of OID are then allocated evenly to each day in
the semiannual period, and the sum of the OID allocable to the days in your tax
year constitutes the OID includible in your gross income for the year. You
should consult your tax advisor about the possibility of using different accrual
periods and other assumptions for purposes of computing OID accruals into your
income.
The amount of OID you include in income without actual receipt of cash
increases your basis in your 2.25% notes for federal income tax purposes.
Conversely, your basis is reduced by the actual receipt of OID payments and
principal payments. Similarly, the issue price of the 2.25% notes is adjusted
upward by OID accrued but not received and is decreased by the receipt of
payments of OID and principal. This "adjusted issue price" of a 2.25% note is
especially relevant if you purchase a 2.25% note after its original issue.
Acquisition Premium on the 2.25% notes
If you purchase a 2.25% note at a price in excess of its then adjusted
issue price but below its stated redemption price at maturity, then you will
have paid an acquisition premium equal to this excess. If this happens, then
each of your subsequent accruals of OID into gross income is to be reduced by a
percentage equal to the amount of acquisition premium divided by the remaining
amount of OID to be accrued at the time you purchased the 2.25% note. If instead
you purchase a 2.25% note at a price in excess of its stated redemption price at
maturity, then you need not include any OID accruals into income and the
elective amortization of bond premium described below would apply.
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Amortizable Bond Premium on the Notes
If you purchase a 6.25% note for an amount which, when reduced by the value
of the conversion feature, is greater than its principal amount, or if you
purchase a 2.25% note for an amount which, when reduced by the value of the
conversion feature, is greater than its stated redemption price at maturity,
then you will be treated as having purchased that note with "bond premium" equal
to the excess. You generally may elect to amortize this bond premium over the
remaining term of the note on a constant yield method. The amount amortized in
any year will be treated as a reduction of your interest income from the note
for that year. If you do not make the election, your bond premium on a note will
decrease the gain or increase the loss that you otherwise recognize on the
note's disposition. Any election to amortize bond premium applies to all debt
obligations, other than debt obligations the interest on which is excludable
from gross income, that you hold at the beginning of the first taxable year to
which the election applies and that you thereafter acquire. You may not revoke
an election to amortize bond premium without the consent of the IRS. We urge you
to consult with your tax advisor regarding this election.
Market Discount on the Notes
If you purchase a 6.25% note for an amount less than its principal amount,
or if you purchase a 2.25% note for less than its then adjusted issue price,
then you will be treated as having purchased that note at a "market discount"
equal to the difference, unless the amount of the market discount is less than
the de minimis amount specified under the Code. Under the market discount rules,
you will be required to treat any gain on the sale, exchange, redemption,
retirement, or other taxable disposition of a note, or any appreciation in a
note in the case of a nontaxable disposition such as a gift, as ordinary income
to the extent of the market discount that has not previously been included in
your income and that is treated as having accrued on the note through the date
of disposition. In addition, you may be required to defer, until the maturity of
the note or earlier taxable disposition, the deduction of all or a portion of
the interest expense on any indebtedness incurred or continued to purchase or
carry the note.
Any market discount will be considered to accrue evenly during the period
from the date of your acquisition to the maturity date of the note, unless you
elect to accrue the market discount on a constant yield method. You may also
elect to include market discount in income currently as it accrues, on either an
even or constant yield method. If you do so, your basis in the note will
increase by the amounts you so include in your income. If you make this
election, the rules described above regarding ordinary income on dispositions
and deferral of interest deductions will not apply. This election to include
market discount in income currently, once made, applies to all market discount
obligations acquired on or after the first taxable year to which the election
applies and may not be revoked without the consent of the IRS. We urge you to
consult with your tax advisor regarding these market discount elections.
Redemption or Sale of the Notes
Generally, a redemption or sale of your notes will result in your
recognizing taxable gain or loss equal to the difference between the amount of
cash or property you receive and your adjusted tax basis in the notes. The
preceding rule does not apply to cash or property received that is attributable
to accrued interest, because those amounts would be taxed as interest income in
the manner described above. Your adjusted tax basis in a 6.25% note generally
will be equal to your cost, increased by any market discount included in your
income, and reduced by any bond premium you amortized and principal payments you
received. Your adjusted tax basis in a 2.25% note generally will be equal to
your cost, increased by any OID or market discount included in your income, and
reduced by any bond premium you amortized and OID or principal payments you
received. Subject to the market discount rules described above, your gain or
loss will be capital gain or loss and will be long-term capital gain or loss if
your holding period in the note exceeds one year.
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Repurchase of the Notes at Your Option
If you exercise your repurchase right, then your notes will be exchanged
for an amount of cash and Class A common stock. To the extent the cash or Class
A common stock received constitutes payment of accrued interest, those amounts
will be taxed as interest income in the manner described above. The balance of
the cash and Class A common stock will be treated as proceeds of the exchange
and taxed in the following manner. In an exchange of notes solely for cash, the
repurchase will be treated as a redemption for cash, the consequences of which
are discussed above. In an exchange of notes involving Class A common stock, the
repurchase should constitute a recapitalization in which you will not recognize
any taxable gain except to the extent of the cash you receive, and in which you
will not recognize any loss. Accordingly, your tax basis in the Class A common
stock you receive will equal your adjusted tax basis in the notes you
surrendered, plus the taxable gain you recognized in the recapitalization, minus
the amount of cash that you received in the recapitalization. Your holding
period in the Class A common stock will include your holding period in the notes
you surrendered in the exchange.
Conversion of the Notes into Class A Common Stock
You will generally not recognize any gain or loss on conversion of your
notes solely into shares of Class A common stock. You will have some taxable
gain if you receive cash in lieu of a fractional share of Class A common stock.
The cash will be treated as your receipt of a fractional share, followed by our
redemption of it for cash. The redemption will be treated as a sale of your
Class A common stock which would result in your recognition of gain or loss
equal to the difference between the cash received and your adjusted tax basis in
the fractional share of Class A common stock redeemed. Any gain would be
ordinary income to the extent of any accrued market discount on your notes that
you have not previously included in your income, and otherwise would be capital
gain. Your holding period in the Class A common stock will include your holding
period in the notes you surrendered in the conversion.
Your income tax basis for the shares of Class A common stock received upon
conversion will be equal to the adjusted tax basis of the notes you exchange,
except for any adjustment necessary because of your receipt of cash in lieu of a
fractional share of Class A common stock. Any accrued market discount not
previously included in income as of the date of the conversion of the notes will
carry over to the Class A common stock received on conversion and will give rise
to ordinary income upon the subsequent disposition of that stock.
Distributions on Class A common stock are treated first as ordinary
dividend income to the extent paid out of our current or accumulated earnings
and profits, next as a nontaxable return of capital that reduces your basis in
the stock dollar-for-dollar until the basis has been reduced to zero, and
finally as gain from the sale or exchange of the stock. We do not at this time
anticipate making distributions on the Class A common stock. Subject to the
market discount rules discussed above, your sale or other taxable disposition of
Class A common stock will generally result in capital gain or loss equal to the
difference between the amount of cash or property you receive and your adjusted
tax basis in the stock.
Potential Distributions Resulting from Adjustment of Conversion Price
Your rights to convert your notes into Class A common stock allow for the
conversion price to be adjusted under a number of circumstances, generally to
ensure that you receive an economically equivalent number of shares from a
conversion following stock splits and stock dividends of our Class A common
stock. Section 305 of the Code may treat some of these adjustments as
constructive taxable distributions of stock. This would generally occur if the
conversion price is adjusted for a taxable distribution to the holders of Class
A common stock. Constructive distributions so treated would be taxable first as
dividends to the extent paid out of our current or accumulated earnings and
profits, next as a nontaxable return of capital to the extent of your basis in
the notes, and finally as gain from the sale or exchange of the notes. Your
adjusted tax basis in the notes would be increased by constructive distributions
to you taxable as dividends or gain, and would be unaffected by constructive
distributions that were nontaxable returns of capital. Conversely, a failure to
appropriately adjust the conversion price of the notes could
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result in a constructive distribution to holders of Class A common stock that
would be taxable to them in a similar manner.
Special Tax Consequences for Non-U.S. Holders
The federal income tax attributes of the notes and Class A common stock for
non-U.S. holders are generally comparable to those described above for U.S.
holders. However, special federal income tax rules apply to non-U.S. holders as
described below.
In General
If you are a non-U.S. holder, you will generally not be subject to federal
income taxes on payments of principal, premium, if any, or interest or OID on a
note or upon the sale, exchange, redemption, retirement or other disposition of
a note or Class A common stock, if:
o you do not own directly or indirectly 10% or more of the total voting
power of all classes of our voting stock,
o your income and gain in respect of the note or Class A common stock is
not effectively connected with the conduct of a United States trade or
business,
o you are not a controlled foreign corporation that is related to or
under common control with us,
o we or the applicable withholding agent have received from you a
properly executed, applicable IRS Form W-8 or substantially similar
form in the year in which a payment of interest, OID, principal, or
premium on a note occurs, or in a preceding calendar year to the
extent provided for in the instructions to the applicable IRS Form
W-8,
o in the case of gain upon the sale, exchange, redemption, retirement or
other disposition of a note or Class A common stock recognized by an
individual non-U.S. holder, you were present in the United States for
less than 183 days during the taxable year in which the gain was
recognized, and
o section 897 of the Code, discussed below, does not apply to you.
The IRS Form W-8 or substantially similar form must be signed by you under
penalties of perjury certifying that you are a non-U.S. holder and providing
your name and address. You must inform the withholding agent of any change in
the information on the statement within 30 days of the change. If you hold a
note or Class A common stock through a securities clearing organization or other
qualified financial institution, the organization or institution may provide a
signed statement to the withholding agent. However, in that case, the signed
statement must generally be accompanied by a copy of the executed IRS Form W-8
or substantially similar form that you provided to the organization or
institution.
Except in the case of income or gain that is effectively connected with the
conduct of a United States trade or business, discussed below, interest, OID,
dividends or gain recognized by you which does not qualify for exemption from
taxation will be subject to federal income tax and withholding at a rate of 30%
unless reduced or eliminated by an applicable tax treaty. For example, neither
constructive distributions on notes taxable as dividends, nor excess cash
dividend payments on notes, nor dividends on Class A common stock would qualify
for exemption from taxation, although an applicable tax treaty may reduce the
tax rate on these items to below 30%. You may generally use IRS Form 1001 to
claim tax treaty benefits for calendar years 1999 and 2000, and under new
Treasury regulations discussed below an applicable IRS Form W-8 or substantially
similar form for subsequent calendar years.
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Effectively Connected Income and Gain
If you are a non-U.S. holder whose income and gain in respect of a note or
Class A common stock is effectively connected with the conduct of a United
States trade or business, you will be subject to regular federal income tax on
this income and gain in generally the same manner as U.S. holders, and general
federal income tax return filing requirements will apply. In addition, if you
are a corporation, you may be subject to a branch profits tax equal to 30% of
your effectively connected adjusted earnings and profits for the taxable year,
unless you qualify for a lower rate under an applicable tax treaty. To obtain an
exemption from withholding on interest, dividends, and OID, you may generally
supply to the withholding agent an IRS Form 4224 for calendar years 1999 and
2000, and under new Treasury regulations discussed below an applicable IRS Form
W-8 or substantially similar form for subsequent calendar years.
We believe that we are currently a United States real property holding
corporation, and that we are likely to remain one. Because of this, section 897
of the Code and the applicable Treasury regulations potentially cause any gain
or loss you realize upon a disposition of your notes or Class A common stock to
be treated as effectively connected with the conduct of a trade or business in
the United States, and thus taxable as effectively connected gain in the manner
described above. Section 897 can also cause realized gains that would otherwise
remain unrecognized, for example gains in a recapitalization where you have
required us to repurchase your note in exchange for Class A common stock, to be
recognized in full absent compliance with procedural requirements under section
897. We believe that, provided our Class A common stock continues to be
regularly traded on the New York Stock Exchange, you will not recognize taxable
gain under section 897 on a disposition of a 6.25% or 2.25% note or Class A
common stock, so long as you meet the following three standards:
o you have not directly or indirectly owned, at any time during the
five-year period preceding the disposition, more than 5% of the total
outstanding 6.25% notes or more than 5% of the total outstanding 2.25%
notes;
o you have not directly or indirectly owned more than 5% of the total
outstanding Class A common stock at any time during the five-year
period preceding the disposition; and
o upon the date of your acquisition of any of the notes or any other
interests in our company not regularly traded on an established
securities market, the aggregate fair market value of your directly
and indirectly owned notes, plus any of your other directly or
indirectly owned interests in our company not regularly traded on an
established securities market, does not exceed 5% of the aggregate
value of our outstanding Class A common stock.
We urge you to consult with your tax advisor to determine whether you meet these
three standards, or whether you otherwise qualify for exemption from section 897
of the Code.
Our Deductions for Interest and OID on the Notes
Under section 279 of the Code, deductions otherwise allowable to a
corporation for interest and OID expense may be reduced or eliminated in the
case of "corporate acquisition indebtedness." This is defined generally to
include subordinated convertible debt issued to provide consideration for the
acquisition of stock or a substantial portion of the assets of another
corporation, where the acquiring corporation does not meet statutorily specified
debt/equity ratio and earnings coverage tests. Our deductions for interest and
OID expense on any notes could be reduced or eliminated if the notes so issued
meet the definition of corporate acquisition indebtedness in the year of
issuance. Also, the notes could become corporate acquisition indebtedness in a
subsequent year if we initially meet the debt/equity ratio and earnings coverage
tests, but later fail them in a year during which we issue additional
indebtedness for corporate acquisitions. Because the notes are not expressly
subordinated to any of our unsecured debt, and because the notes have the same
creditor priority as more than an insubstantial amount of our trade debt, we
believe the notes are not subordinated within the meaning of section 279 of the
Code and therefore do not constitute corporate acquisition indebtedness.
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Under section 163(l) of the Code, our deduction for interest and OID
expense on the notes would be disallowed if they are found to be "disqualified
debt instruments." Disqualified debt instruments are debt instruments:
o where a substantial amount of the principal or interest is required to
be paid or converted, or at the option of the issuer or a related
party is payable in or convertible into, issuer equity, or
o which are part of an arrangement that is reasonably expected to result
in a transaction described in the preceding clause.
For these purposes, principal or interest on a debt instrument is treated as
required to be paid in or converted into issuer equity if the payment or
conversion may be required at the option of the holder and that option is
substantially certain to be exercised. We do not believe that principal or
interest on the notes is required to be paid in or converted into our equity
under section 163(l), because principal or interest on our notes may only be
exchanged for equity in our company at the holder's option, and we do not
believe that this option is substantially certain to be exercised. Furthermore,
the legislative history of section 163(l) indicates that the provision is not
intended to apply to debt instruments with a conversion feature where the
conversion price is significantly higher than the market price of the stock on
the issue date of the debt. We believe that the conversion price of the notes
was significantly higher than the market price of our Class A common stock on
the date the notes were issued. Accordingly, we believe that the notes are not
disqualified debt instruments under section 163(l) of the Code. However, our
conclusions in this regard are factual judgments as to which no legal opinion
can be given. In any event, we cannot assure you that the IRS or a court would
agree with our conclusions.
Information Reporting, Income Tax Withholding and Backup Withholding
Information reporting, income tax withholding, and backup withholding may
apply to interest, OID, dividend and other payments to you under the
circumstances discussed below. Amounts withheld are generally not an additional
tax and may be refunded or credited against your federal income tax liability,
provided you furnish the required information to the IRS.
If You are a U.S. Holder. You may be subject to backup withholding at a 31%
rate when you receive interest, OID, and dividends with respect to the notes or
Class A common stock, or when you receive proceeds upon the sale, exchange,
redemption, retirement or other disposition of the notes or Class A common
stock. In general, you can avoid this backup withholding by properly executing
under penalties of perjury an IRS Form W-9 or substantially similar form that
provides:
o your correct taxpayer identification number, and
o a certification that (a) you are exempt from backup withholding
because you are a corporation or come within another enumerated exempt
category, (b) you have not been notified by the IRS that you are
subject to backup withholding, or (c) you have been notified by the
IRS that you are no longer subject to backup withholding.
If you do not provide your correct taxpayer identification number on the IRS
Form W-9 or substantially similar form, you may be subject to penalties imposed
by the IRS.
Unless you have established on a properly executed IRS Form W-9 or
substantially similar form that you are a corporation or come within another
enumerated exempt category, interest, OID, dividend and other payments on the
notes or Class A common stock paid to you during the calendar year, and the
amount of tax withheld, if any, will be reported to you and to the IRS.
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Special Rule for U.S. Holders Beneficially Owned by Non-U.S. Holders. As
stated above, we believe that we are currently a United States real property
holding corporation under section 897 of the Code, and that we are likely to
remain one. Section 1445 of the Code governs income tax withholding for gains
taxable to non-U.S. holders under section 897. It provides that upon a
disposition of the notes or Class A common stock, income tax withholding may be
required of disposing U.S. holders that are partnerships, trusts, estates, and
other entities because of their beneficial ownership by non-U.S. holders. We
believe that, provided our Class A common stock continues to be regularly traded
on the New York Stock Exchange, you will not have to withhold upon a disposition
of the notes or Class A common stock under section 1445 of the Code if you meet
the 5% thresholds discussed above that are applicable to non-U.S. holders on the
disposition of the notes and Class A common stock. We urge you to consult with
your tax advisor to determine whether you meet these standards, or whether you
otherwise qualify for exemption from sections 897 and 1445 of the Code.
Special Rule for Substantial Acquisitions from Non-U.S. Holders. As stated
above, we believe we are currently a United States real property holding
corporation under section 897 of the Code, and we are likely to remain one.
Because of this, section 1445 of the Code may require a person acquiring notes
from a non-U.S. holder to withhold 10% of the purchase price. However, provided
our Class A common stock continues to be regularly traded on the New York Stock
Exchange, this 10% withholding is generally not required for an acquisition of
notes where the purchase price constitutes 5% or less of the then aggregate
value of the outstanding Class A common stock. We urge you to consult with your
tax advisor to determine whether you meet this standard, or whether you
otherwise qualify for exemption from section 1445 of the Code.
If You are a Non-U.S. Holder. The amount of interest, OID, and dividends
paid to you on a note or Class A common stock during each calendar year, and the
amount of tax withheld, if any, will generally be reported to you and to the
IRS. This information reporting requirement applies regardless of whether you
were subject to withholding or whether withholding was reduced or eliminated by
an applicable tax treaty. Also, interest, OID, and dividends paid to you may be
subject to backup withholding at a 31% rate, unless you properly certify your
non-U.S. holder status on an IRS Form W-8 or substantially similar form.
Similarly, information reporting and 31% backup withholding will not apply to
proceeds you receive upon the sale, exchange, redemption, retirement or other
disposition of the notes or Class A common stock, if you properly certify that
you are a non-U.S. holder on an IRS Form W-8 or substantially similar form. Even
without having executed an IRS Form W-8 or substantially similar form, however,
in some cases information reporting and 31% backup withholding will not apply to
proceeds you receive upon the sale, exchange, redemption, retirement or other
disposition of the notes or Class A common stock if you receive those proceeds
through a broker's foreign office.
If you are a non-U.S. holder whose income and gain on the notes or Class A
common stock are effectively connected with the conduct of a United States trade
or business, a slightly different rule may apply to proceeds you receive upon
the sale, exchange, redemption, retirement or other disposition of those
securities. Until you comply with the new Treasury regulations discussed below,
information reporting and 31% backup withholding may apply to you in the same
manner as to a U.S. holder, and thus you may have to execute an IRS Form W-9 or
substantially similar form to prevent the backup withholding.
New Treasury Regulations. New Treasury regulations alter the withholding
rules on interest, OID, dividends, and sale or exchange proceeds paid to you,
effective generally for payments after December 31, 2000 and subject to complex
transition rules. For example, documentation and procedures satisfying the new
Treasury regulations are deemed in some instances to satisfy current law
requirements. In these instances you or the withholding agent may wish to
satisfy the requirements of the new Treasury regulations rather than the
requirements of the Treasury regulations soon to expire. The new Treasury
regulations are complex, and we urge you to consult with your tax advisor to
determine how the new Treasury regulations affect your particular circumstances.
The new Treasury regulations replace old IRS Forms W-8, 1001 and 4224 with
a new series of IRS Forms W-8, which you will generally have to properly execute
earlier than you would have otherwise had to for purposes of providing
replacements for the old IRS forms. For example, you must properly execute the
appropriate new version of IRS Form W-8, or substantially similar form, no later
than December 31, 2000 if you remain a non-U.S. holder of the notes or Class A
common stock on that date. Under the new Treasury regulations, it may also be
possible for
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you to receive payments on those securities through a qualified intermediary
that complies with requisite procedures and provides applicable certification of
your non-U.S. holder status on your behalf. The new Treasury regulations also
clarify withholding agents' standards of reliance on executed IRS Forms W-8 or
substantially similar forms.
If you are a non-U.S. holder claiming benefits under an income tax treaty,
you should be aware that you may be required to obtain a taxpayer identification
number and to certify your eligibility under the applicable treaty's limitations
on benefits article in order to comply with the new Treasury regulations'
certification requirements. The new Treasury regulations also provide special
rules to determine whether, for purposes of determining the applicability of a
tax treaty, amounts paid to a non-U.S. holder that is an entity should be
treated as paid to the entity or to those holding the ownership interests in
that entity, and whether the entity or the holders in the entity are entitled to
benefits under the tax treaty.
REGISTRATION RIGHTS AGREEMENT
On October 4, 1999, we entered into a registration rights agreement with
the initial purchasers for the benefit of the holders of the notes. That
agreement obligates us, at our sole expense, as follows:
o use our reasonable best efforts to file a shelf registration statement
as soon as practicable, but in no event more than 90 days after the
issue of the notes, covering resales of the notes and the Class A
common stock issuable upon their conversion. We refer to those
securities collectively as the "registrable securities;"
o to use our reasonable best efforts to cause the shelf registration
statement to be declared effective under the Securities Act within 150
days after the issue of the notes; and
o to use our reasonable best efforts to keep the shelf registration
statement effective and usable for two years or such other shorter
period as shall be required under Rule 144(k) of the Securities Act.
We are permitted, however, to suspend the use of the shelf
registration statement during certain black-out periods if we
determine in good faith that it is in our best interest and if we
provide the registered holders with written notice of the suspension.
The period may not exceed 30 days in any three-month period and may
not exceed 90 days in the aggregate in any 12-month period. We are
also not required to maintain the shelf registration statement if
prior to the end of that two-year period or other shorter Rule 144(k)
period all the registrable securities have been sold under the shelf
registration statement, transferred under Rule 144 under the
Securities Act or otherwise transferred in a way that eliminates their
Securities Act transfer restrictions for future resales by
non-affiliates.
The registration statement of which this prospectus is a part satisfies the
first two of the foregoing requirements.
We are obligated to:
o provide each holder of registrable securities with copies of this
prospectus;
o notify each such holder when the registration statement has become
effective, and
o take certain other actions as are required to permit unrestricted
resales of the registrable securities.
If you sell registrable securities pursuant to the registration statement,
you (a) will usually be required to be named as a selling securityholder in this
prospectus and to deliver this prospectus to purchasers, (b) will be subject to
certain of the civil liability provisions under the Securities Act in connection
with your sales, and (c) will be bound by the applicable provisions of the
registration rights agreement, including certain indemnification rights and
obligations.
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If a registration default occurs, the interest rate will be increased 0.50%
per annum, subject to certain exceptions. Following the cure of a registration
default, the interest rate will become the rate in effect immediately prior to
the registration default. We use the term "registration default" to mean if:
o we fail to timely file the shelf registration statement with the SEC
within 90 days of closing,
o the SEC has not declared the shelf registration statement effective
within 150 days of closing, or
o we fail to keep the shelf registration statement that has been
declared effective continuously effective and usable, subject to
certain exceptions, for the period required.
Each registrable security contains a legend to the effect that the holder
is deemed to have agreed to be bound by the provisions of the registration
rights agreement.
The summary of certain provisions of the registration rights agreement does
not purport to be complete and is subject to, and is qualified in its entirety
by reference to, all the provisions of the registration rights agreement, a copy
of which has been filed as an exhibit to the registration statement of which
this prospectus is a part.
PLAN OF DISTRIBUTION
The notes and Class A common stock may be sold from time to time to
purchasers directly by the selling securityholders. Alternatively, the selling
securityholders may from time to time offer the notes with discounts,
concessions or commissions from the selling securityholders and/or the
purchasers of the notes and Class A common stock for whom they may act as agent.
The selling securityholders and any such brokers, dealers or agents who
participate in the distribution of the notes and Class A common stock may be
deemed to be "underwriters," and any profits on the sale of the notes and Class
A common stock by them and any discounts, commissions or concessions received by
any such brokers, dealers or agents might be deemed to be underwriting discounts
and commissions under the Securities Act. To the extent the selling
securityholders may be deemed to be underwriters, the selling securityholders
may be subject to certain statutory liabilities, including, but not limited to,
Sections 11, 12 and 17 of the Securities Act and Rule 10b-5 under the Exchange
Act.
The notes and underlying Class A common may be sold from time to time in
one or more transactions at fixed prices, at prevailing market prices at the
time of sale, at varying prices determined at the time of sale or at negotiated
prices. The notes and Class A common stock may be sold by one or more of the
following methods:
o a block trade in which the broker or dealer so engaged will attempt to
sell the notes and Class A common stock issuable upon conversion
thereof as agent but may position and resell a portion of the block as
principal to facilitate the transaction;
o purchases by a broker or dealer as principal and resale by such broker
or dealer for its account pursuant to this prospectus;
o ordinary brokerage transactions and transactions in which the broker
solicits purchasers;
o an exchange distribution in accordance with the rules of such
exchange;
o face-to-face transactions between sellers and purchasers without a
broker-dealer;
o through the writing of options; and
o other transactions.
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At any time a particular offer of the notes and Class A common stock is
made, a revised prospectus or prospectus supplement, if required, will be
distributed which will set forth the aggregate amount and type of securities
being offered and the terms of the offering, including the name or names of any
underwriters, dealers or agents, any discounts, commissions, concessions and
other items constituting compensation from the selling securityholders and any
discounts, commissions or concessions allowed or reallowed or paid to dealers.
The prospectus supplement and, if necessary, a post-effective amendment to the
registration statement of which this prospectus is a part, will be filed with
the SEC to reflect the disclosure of additional information with respect to the
distribution of the notes and Class A common stock. In addition, the notes and
Class A common stock covered by this prospectus may be sold in private
transactions or under Rule 144 rather than pursuant to this prospectus.
We have agreed in the registration rights agreement to keep this prospectus
useable until October 4, 2001 as described under "Registration Rights Agreement"
on page 51. To our knowledge currently no plans, arrangements or understandings
exist between any selling securityholders and any broker, dealer, agent or
underwriter regarding the sale of the securities by the selling securityholders.
We cannot assure you that any selling securityholder will sell any or all of the
securities offered by it under this prospectus or that any selling
securityholder will not transfer, devise or gift such securities by other means
not described in this prospectus.
The selling securityholders and any other person participating in such
distribution will be subject to applicable provisions of the Exchange Act and
the rules and regulations thereunder, including, without limitation, Regulation
M. That regulation may limit the timing of purchases and sales of any of the
notes and Class A common stock by the selling securityholders and any other
participating person. Furthermore, Regulation M of the Exchange Act may restrict
the ability of any person engaged in the distribution of the notes and Class A
common stock to engage in market-making activities with respect to the
particular notes and Class A common stock being distributed for a period of up
to five business days prior to the commencement of the distribution. All of the
foregoing may affect the marketability of the notes and Class A common stock and
the ability of any person or entity to engage in market-making activities with
respect to the notes and Class A common stock.
Pursuant to the registration rights agreement entered into in connection
with our initial private placement, we and each of the selling securityholders
will be indemnified by the other against certain liabilities, including certain
liabilities under the Securities Act, or will be entitled to contribution in
connection with these matters.
We have agreed to pay substantially all of the expenses incidental to the
registration, offering and resale by the selling securityholders of the notes to
the public other than commissions, fees and discounts of underwriters, brokers,
dealers and agents.
We will not receive any of the proceeds of the sale of the notes and
underlying Class A common stock covered by this prospectus.
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LEGAL MATTERS
The validity of the notes and any Class A common stock issuable upon
conversion of such notes have been passed upon for us by Sullivan & Worcester
LLP, Boston, Massachusetts. Sullivan & Worcester LLP, Boston, Massachusetts,
also passed upon certain matters relating to United States federal income tax
considerations for us, as our special tax counsel. Norman A. Bikales, a member
of the firm of Sullivan & Worcester LLP, is the owner of 11,000 shares of Class
A common stock and 41,490 shares of Class B common stock and has an option to
purchase 20,000 shares of Class A common stock at $10.00 per share. An associate
of Sullivan & Worcester LLP has an option to purchase 8,000 shares of Class A
common stock at $18.75 per share. Mr. Bikales and/or associates of that firm
serve as our secretary or assistant secretaries and certain of our subsidiaries.
EXPERTS
The consolidated financial statements of American Tower Corporation as of
December 31, 1998 and 1997 and for each of the years in the three year period
ended December 31, 1998 incorporated by reference in this prospectus from the
Company's Annual Report on Form 10-K, have been audited by Deloitte & Touche
LLP, independent auditors, as stated in their report, which is incorporated
herein by reference, and has been so incorporated in reliance upon the report of
such firm given upon their authority as experts in accounting and auditing.
The following financial statements are incorporated by reference in this
prospectus from the Form 8-K dated September 17, 1999:
o The consolidated financial statements of American Tower Corporation
and subsidiaries as of December 31, 1997 and 1996, and for each of the
years in the three year period ended December 31, 1997 have been
incorporated by reference in this prospectus in reliance upon the
report of KPMG LLP, independent auditors, incorporated by reference in
this prospectus, and upon the authority of said firm as experts in
accounting and auditing.
o The consolidated financial statements of OmniAmerica, Inc. and
Subsidiaries (formerly Specialty Teleconstructors, Inc.) at and for
the year ended June 30, 1998, incorporated by reference in this
prospectus have been audited by Ernst & Young LLP, independent
auditors, as stated in their report incorporated by reference herein,
and are incorporated by reference herein in reliance upon such report
given on the authority of such firm as experts in accounting and
auditing.
o The consolidated financial statements of OmniAmerica, Inc. (formerly
Specialty Teleconstructors, Inc.) as of and for the year ended June
30, 1997 have been incorporated by reference in this prospectus in
reliance upon the report of KPMG LLP, independent auditors,
incorporated by reference in this prospectus, and upon the authority
of said firm as experts in accounting and auditing.
o The financial statements of TeleCom Towers, L.L.C. as of December 31,
1998 and 1997 and for the year ended December 31, 1998 and the three
month period from September 30, 1997 (date of inception) to December
31, 1997 and the financial statements of Telecom Southwest Towers LP,
Telecom Towers Mid-Atlantic LP, and Telecom Towers of the West, L.P.,
as of July 31, 1998 and December 31, 1997 and for the seven month
period ended July 31, 1998 and the year ended December 31, 1997,
incorporated by reference in this prospectus have been audited by
Ernst & Young LLP, independent auditors, as stated in their reports
appearing therein, and as to the seven month period ended July 31,
1998 and the year ended December 31, 1997 as related to Telecom Towers
Mid-Atlantic, LP and as to the year ended December 31, 1998 as related
to Telecom Towers, LLC is based in part on the report of KPMG LLP,
independent auditors, as set forth in their report on the financial
statements of RCC Consultants, Inc. (not separately presented in the
Form 8-K) appearing therein. The financial statements referred to
above are included in reliance upon such reports given upon the
authority of such firms as experts in accounting and auditing.
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o The financial statements of Wauka Communications, Inc. as of October
26, 1998 and December 31, 1997 and for the ten month period ended
October 26, 1998 and year ended December 31, 1997 incorporated by
reference in this prospectus have been audited by Arthur Andersen LLP,
independent auditors, as stated in their report appearing therein.
o The consolidated financial statements of UNIsite, Inc. and
subsidiaries as of December 31, 1998 and 1997 and for each of the
years in the three year period ended December 31, 1998 have been
incorporated by reference in this prospectus in reliance upon the
report of KPMG LLP, independent auditors, incorporated by reference in
this prospectus, and upon the authority of said firm as experts in
accounting and auditing.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and current reports, proxy statements and
other information with the SEC. You may read and copy any reports, statements or
other information on file at the SEC's public reference room at 450 Fifth
Street, N.W., Washington, D.C. 20549. You can request copies of those documents
upon payment of a duplicating fee to the SEC. You may also review a copy of the
registration statement at the SEC's regional offices in Chicago, Illinois and
New York, New York. Please call the SEC at 1-800-SEC-0330 for further
information on the operation of the public reference rooms. You can review our
SEC filings and the registration statement by accessing the SEC's Internet site
at http://www.sec.gov.
The SEC allows us to "incorporate by reference" the information we file
with them. This means that we can disclose important information to you by
referring you to those documents. The information incorporated by reference is
considered to be part of this prospectus. Statements in this prospectus
regarding the contents of any contract or other document may not be complete.
You should refer to the copy of the contract or other document filed as an
exhibit to the registration statement. Later information filed with the SEC will
update and supersede information we have included or incorporated by reference
in this prospectus.
We incorporate by reference the documents listed below and any filings
made after the date of the original filing of the registration statement of
which this prospectus is a part made with the SEC under Section 13(a), 13(c), 14
or 15(d) of the Securities Exchange Act of 1934 until this offering is completed
or terminated:
o our Annual Report on Form 10-K for the fiscal year ended December 31,
1998 (the "1998 Annual Report"),
o our proxy statement for our 1999 annual meeting of stockholders,
o our Quarterly Reports on Form 10-Q for the quarters ended March 31 and
June 30, 1999 (the "March 1999 Quarterly Report" and the "June 1999
Quarterly Report"), and
o (a) our Current Reports on Form 8-K dated January 8, 1999, January 21,
1999, February 12, 1999, February 24, 1999, March 5, 1999, July 16,
1999, September 17, 1999 and September 21, 1999; and (b) our Current
Reports on Form 8-K/A dated January 27, 1999 and March 18, 1999.
We will provide a copy of the documents we incorporate by reference,
excluding exhibits other than those to which we specifically refer. You may
obtain this information at no cost by writing or telephoning us at: 116
Huntington Avenue, Boston, Massachusetts 02116, (617) 375-7500, Attention:
Director of Investor Relations.
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LOGO
<PAGE>
AMERICAN TOWER CORPORATION
REGISTRATION STATEMENT ON FORM S-3
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following expenses are the estimated expenses of the issuance
and distribution of the securities (other than underwriting discounts
and commissions) being registered, all of which will be paid by American
Tower:
Securities and Exchange Commission fee............$ 166,818
New York Stock Exchange listing fee............... 1,500
Accountants' fees and expenses.................... 300,000
Legal fees and expenses........................... 300,000
Miscellaneous..................................... 231,682
--------------
Total.........................................$ 1,000,000
==============
The foregoing, except for the SEC, NYSE and NASD fees, are estimated.
Item 15. Indemnification of Directors and Officers.
Section 145 of the DGCL provides, in effect, that any person made
a party to any action by reason of the fact that he is or was a
director, officer, employee or agent of ATC may and, in certain cases,
must be indemnified by ATC against, in the case of a non-derivative
action, judgments, fines, amounts paid in settlement and reasonable
expenses (including attorney's fees), if in either type of action he
acted in good faith and in a manner he reasonably believed to be in or
not opposed to the best interests of ATC and, in a non-derivative
action, which involves a criminal proceeding, in which such person had
no reasonable cause to believe his conduct was unlawful. This
indemnification does not apply, in a derivative action, to matters as to
which it is adjudged that the director, officer, employee or agent is
liable to ATC, unless upon court order it is determined that, despite
such adjudication of liability, but in view of all the circumstances of
the case, he is fairly and reasonably entitled to indemnity for
expenses.
Article XII of ATC's By-Laws provides that ATC shall indemnify
each person who is or was an officer or director of ATC to the fullest
extent permitted by Section 145 of the DGCL.
Article Sixth of ATC's Restated Certificate states than no
director of ATC shall be personally liable to ATC or its stockholders for
monetary damages for breach of fiduciary duty as a director, except for
(i) breach of the director's duty of loyalty to ATC or its stockholders,
(ii) acts or omissions not in good faith or which involve intentional
misconduct or knowing violation of law, (iii) liability under Section 174
of the DGCL relating to certain unlawful dividends and stock repurchases,
or (iv) any transaction from which the director derived an improper
personal benefit.
Item 16. Exhibits.
Listed below are the exhibits which are filed as part of this
Registration Statement on Form S-3 (according to the number assigned to
them in Item 601 of Regulation S-K).
<TABLE>
<CAPTION>
Exhibit Description of Document Exhibit File No.
No.
<S> <C> <C>
4.1 Indenture, by and between the Company and The Bank of New York
as Trustee, for the 6.25% Notes, dated as of October 4, 1999,
including form of 6.25% Note Filed herewith as Exhibit 4.1
II-1
<PAGE>
4.2 Indenture by and between the Company and The Bank of New York
as Trustee, for the 2.25% Notes, dated as of October 4, 1999,
including the form of 2.25% Note. Filed herewith as Exhibit 4.2
4.3 Form of 6.25% Note (included in Exhibit 4.1) Filed herewith as part of Exhibit 4.1
4.4 Form of 2.25% Note (included in Exhibit 4.2) Filed herewith as part of Exhibit 4.2
4.5 Registration Rights Agreement, by and between the Company and
the Initial Purchasers named therein, dated as of October 4,
1999 Filed herewith as Exhibit 4.5
5 Opinion of Sullivan & Worcester LLP To be filed by amendment
8 Tax Opinion of Sullivan & Worcester LLP To be filed by amendment
12 Statement Regarding Computation of Ratios of Earnings to
Fixed Charges Filed herewith as Exhibit 12
23 Consent of Sullivan & Worcester LLP Contained in the opinion of Sullivan &
Worcester LLP filed herewith as part
of Exhibits 5 and 8
23.1 Independent Auditors' Consent--Deloitte & Touche LLP Filed herewith as Exhibit 23.1
23.2 Consent of KPMG LLP Filed herewith as Exhibit 23.2
23.3 Consent of KPMG LLP Filed herewith as Exhibit 23.3
23.4 Consent of Ernst & Young LLP Filed herewith as Exhibit 23.4
23.5 Consent of Ernst & Young LLP Filed herewith as Exhibit 23.5
23.6 Consent of KPMG LLP Filed herewith as Exhibit 23.6
23.7 Consent of Arthur Andersen LLP Filed herewith as Exhibit 23.7
23.8 Consent of KPMG LLP Filed herewith as Exhibit 23.8
24 Power of Attorney Filed herewith as page II-4 of the
Registration Statement
25 Statement of Eligibility of Trustee on Form T-1 Filed herewith as Exhibit 25
</TABLE>
Item 17. Undertakings.
(a)The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3) of
the Securities Act of 1933;
(ii)To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the
most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental
change in the information set forth in this registration
statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar
value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form
of prospectus filed with the Commission pursuant to Rule
424(b) under the Securities Act of 1933 if, in the aggregate,
the changes in volume and price represent no more than a 20%
change in the maximum aggregate offering price set forth in
the "Calculation of Registration Fee" table in this
registration statement; and
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in this
registration statement or any material change to such
information in this registration statement;
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<PAGE>
provided, however, that the undertakings set forth in paragraphs
(a)(1)(i) and (a)(1)(ii) above do not apply if the registration statement
is on Form S-3 or Form S-8, and the information required to be included
in a post-effective amendment by those paragraphs is contained in
periodic reports filed with or furnished to the Commission by the
Registrant pursuant to Section 13 or 15(d) of the Securities Exchange Act
of 1934 that are incorporated by reference in this registration
statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing
of the Registrant's annual report pursuant to Section 13(a) or 15(d) of
the Securities Exchange Act of 1934 that is incorporated by reference in
the registration statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial bona fide
offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the Registrant pursuant to the provisions referred
to in Item 15 of this registration statement, or otherwise, the
Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as
expressed in the Securities Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities (other
than the payment by the Registrant of expenses incurred or paid by a
director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities
being registered, the Registrant will, unless in the opinion of its
counsel the matter has been settled by controlling precedent, submit to a
court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such
issue.
(d) The undersigned registrant hereby undertakes:
(1) To file an application for the purpose of determining the
eligibility of the trustee to act under subsection (a) of Section 310 of
the Trust Indenture Act in accordance with the rules and regulations
prescribed by the Commission under Section 305(b)(2) of the Act.
(2) That for purposes of determining any liability under the
Securities Act of 1933, the information omitted from the form of
Prospectus filed as part of this Registration Statement in reliance upon
Rule 430A and contained in a form of Prospectus filed by the Registrant
pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act
shall be deemed to be part of this Registration Statement as of the time
it was effective.
(3) That for the purpose of determining any liability under the
Securities Act of 1933, each post-effective amendment that contains a
form of Prospectus shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be initial bona fide offering
thereof.
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<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Company
certifies that it has reasonable grounds to believe that it meets all of
the requirements for filing on Form S-3 and has duly caused this
registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Boston, Commonwealth of
Massachusetts, on the twentieth day of October, 1999.
AMERICAN TOWER CORPORATION
By: /s/ Steven B Dodge
-------------------------------------
Steven B. Dodge
Chairman of the Board, President and
Chief Executive Officer
The undersigned Officers and Directors of American Tower Corporation (the
"Company") hereby severally constitute Joseph L. Winn, Justin D.
Benincasa, Jonathan Black and Norman A. Bikales, and each of them, acting
singly, our true and lawful attorneys to sign for us and in our names in
the capacities indicated below the Company's Registration Statement on
Form S-3 relating to the registration of such securities under the
Securities Act of 1933, as amended, and any and all amendments thereto,
including without limitation any registration statement or post-effective
amendment thereof filed under and meeting the requirements of rule 462(b)
under the Securities Act, hereby ratifying and confirming our signatures
as they may be signed by our attorneys to such Registration Statement and
any and all amendments thereto.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons on
behalf of the Company and in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
<S> <C> <C>
/s/ Steven B. Dodge Chairman, President, Chief Executive October 20, 1999
Steven B. Dodge Officer and Director
/s/ Joseph L. Winn Chief Financial Officer and October 20, 1999
Joseph L. Winn Treasurer
/s/ Justin D. Benincasa Vice President and Corporate October 20, 1999
Justin D. Benincasa Controller
/s/ Alan L. Box Executive Vice President and October 20, 1999
Alan L. Box Director
/s/ Arnold L. Chavkin Director October 20, 1999
Arnold L. Chavkin
/s/ Dean H. Eisner Director October 20, 1999
Dean H. Eisner
II-4
<PAGE>
/s/ Jack D. Furst Director October 20, 1999
Jack D. Furst
/s/ J. Michael Gearon, Jr. Executive Vice President and October 20, 1999
J.Michael Gearon, Jr. Director
/s/ Fred R. Lummis Director October 20, 1999
Fred R. Lummis
/s/ Randall Mays Director October 20, 1999
Randall Mays
/s/ Thomas H. Stoner Director October 20, 1999
Thomas H. Stoner
/s/ Maggie Wilderotter Director October 20, 1999
Maggie Wilderotter
</TABLE>
II-5
<PAGE>
EXHIBIT INDEX
Listed below are the exhibits which are filed as part of this
Registration Statement on Form S-3 (according to the number assigned to
them in Item 601 of Regulation S-K).
<TABLE>
<CAPTION>
Exhibit Description of Document Exhibit File No.
No.
<S> <C> <C>
4.1 Indenture, by and between the Company and The Bank of New York
as Trustee, for the 6.25% Notes, dated as of October 4, 1999,
including form of 6.25% Note Filed herewith as Exhibit 4.1
4.2 Indenture by and between the Company and The Bank of New York
as Trustee, for the 2.25% Notes, dated as of October 4, 1999,
including the form of 2.25% Note. Filed herewith as Exhibit 4.2
4.3 Form of 6.25% Note (included in Exhibit 4.1) Filed herewith as part of Exhibit 4.1
4.4 Form of 2.25% Note (included in Exhibit 4.2) Filed herewith as part of Exhibit 4.2
4.5 Registration Rights Agreement, by and between the Company and
the Initial Purchasers named therein, dated as of October 4,
1999 Filed herewith as Exhibit 4.5
5 Opinion of Sullivan & Worcester LLP To be filed by amendment
8 Tax Opinion of Sullivan & Worcester LLP To be filed by amendment
12 Statement Regarding Computation of Ratios of Earnings to Fixed
Charges Filed herewith as Exhibit 12
23 Consent of Sullivan & Worcester LLP Contained in the opinion of Sullivan &
Worcester LLP filed herewith as part
of Exhibits 5 and 8
23.1 Independent Auditors' Consent--Deloitte & Touche LLP Filed herewith as Exhibit 23.1
23.2 Consent of KPMG LLP Filed herewith as Exhibit 23.2
23.3 Consent of KPMG LLP Filed herewith as Exhibit 23.3
23.4 Consent of Ernst & Young LLP Filed herewith as Exhibit 23.4
23.5 Consent of Ernst & Young LLP Filed herewith as Exhibit 23.5
23.6 Consent of KPMG LLP Filed herewith as Exhibit 23.6
23.7 Consent of Arthur Andersen LLP Filed herewith as Exhibit 23.7
23.8 Consent of KPMG LLP Filed herewith as Exhibit 23.8
24 Power of Attorney Filed herewith as page II-4 of the
Registration Statement
25 Statement of Eligibility of Trustee on Form T-1 Filed herewith as Exhibit 25
</TABLE>
EXHIBIT 4.1
AMERICAN TOWER CORPORATION
THE BANK OF NEW YORK
Trustee
------------------------------------
Indenture
Dated as of October 4, 1999
------------------------------------
$300,000,000
(subject to increase to up to $360,000,000
in the event and to the extent
an option is exercised)
6.25% Convertible Notes Due 2009
<PAGE>
<TABLE>
<CAPTION>
TABLE OF CONTENTS
Page
<S> <C>
PARTIES..................................................................................................1
RECITALS
Authorization of Indenture .....................................................................1
Compliance with Legal Requirements..............................................................1
Purpose of and Consideration for Indenture......................................................1
ARTICLE ONE
DEFINITIONS
SECTION 1.1 Certain Terms Defined..............................................................1
Affiliate..............................................................................2
Agent ..............................................................................2
Board of Directors.....................................................................2
Board Resolution.......................................................................2
Business Day...........................................................................2
Capital Stock..........................................................................3
Cash Equivalents.......................................................................3
Change in Control......................................................................3
Change in Control Repurchase Date......................................................3
Change in Control Repurchase Price.....................................................3
Class A Common Stock...................................................................4
Closing Date...........................................................................4
Common Stock...........................................................................4
Conversion Agent.......................................................................4
Conversion Price.......................................................................4
Corporate Trust Office.................................................................4
Date of Conversion.....................................................................4
Depositary.............................................................................4
Disposition............................................................................4
DTC ..............................................................................5
Equity Interests.......................................................................5
Event of Default.......................................................................5
Excess Amount..........................................................................5
-i-
<PAGE>
Page
Exchange Act...........................................................................5
Global Security........................................................................5
Holder ..............................................................................5
Holder of Securities...................................................................5
Securityholder.........................................................................5
Immediate Family Member................................................................5
Indenture..............................................................................5
Issuer ..............................................................................6
Issuer Notice..........................................................................6
Issuer Order...........................................................................6
Issuer Repurchase Notice...............................................................6
Issuer Repurchase Notice Date..........................................................6
Last Sale Price........................................................................6
NASDAQ ..............................................................................7
Officer ..............................................................................7
Officers' Certificate..................................................................7
Opinion of Counsel.....................................................................7
Outstanding............................................................................7
Paying Agent...........................................................................8
Permitted Owner........................................................................8
Person ..............................................................................8
principal..............................................................................8
Principal Stockholders.................................................................8
Proceeding.............................................................................8
Redemption Date........................................................................9
Redemption Price.......................................................................9
Registrar..............................................................................9
Registration Right Agreement...........................................................9
Related Party..........................................................................9
Repurchase Date........................................................................9
Repurchase Price.......................................................................9
Responsible Officer....................................................................9
Restricted Global Security.............................................................9
Restricted Security...................................................................10
SEC .............................................................................10
Security .............................................................................10
Securities............................................................................10
Securities Act........................................................................10
Subsidiary............................................................................10
Surviving Person......................................................................10
-ii-
<PAGE>
Page
TIA .............................................................................10
Trading Day...........................................................................10
Trustee .............................................................................11
U.S. Government Obligations...........................................................11
ARTICLE TWO
SECURITIES
SECTION 2.1 Form and Dating...................................................................11
SECTION 2.2 Execution and Authentication......................................................12
SECTION 2.3 Registrar, Paying Agent and
Conversion Agent....................................................14
SECTION 2.4 Paying Agent to Hold Money in Trust...............................................15
SECTION 2.5 Holder Lists ....................................................................16
SECTION 2.6 Transfer and Exchange.............................................................16
SECTION 2.7 Replacement Securities............................................................17
SECTION 2.8 Outstanding Securities............................................................17
SECTION 2.9 Temporary Securities..............................................................18
SECTION 2.10 Cancellation ....................................................................18
SECTION 2.11 Defaulted Interest...............................................................19
SECTION 2.12 CUSIP Numbers....................................................................19
SECTION 2.13 Global Securities................................................................19
SECTION 2.14 Transfer Restrictions............................................................22
ARTICLE THREE
COVENANTS
SECTION 3.1 Payment of Principal and Interest.................................................23
SECTION 3.2 Written Statement to Trustee......................................................23
SECTION 3.3 Corporate Existence...............................................................24
SECTION 3.4 Reports by the Issuer.............................................................24
SECTION 3.5 Waiver of Usury Defense...........................................................25
SECTION 3.6 Payment of Excess Cash Dividends..................................................25
SECTION 3.7 Registration Rights...............................................................26
-iii-
<PAGE>
Page
ARTICLE FOUR
REMEDIES OF THE TRUSTEE AND
SECURITYHOLDERS ON EVENT OF DEFAULT
SECTION 4.1 Event of Default Defined;
Acceleration of Maturity; Waiver of
Default.............................................................26
SECTION 4.2 Collection of Indebtedness by
Trustee; Trustee May Prove Debt.....................................29
SECTION 4.3 Application of Proceeds...........................................................32
SECTION 4.4 Suits for Enforcement.............................................................34
SECTION 4.5 Restoration of Rights or Abandonment
of Proceedings......................................................34
SECTION 4.6 Limitations on Suits by
Securityholders.....................................................34
SECTION 4.7 Unconditional Right of
Securityholders to Receive
Principal, Premium and Interest, to
Convert and to Institute Certain
Suits...............................................................35
SECTION 4.8 Powers and Remedies Cumulative; Delay
or Omission Not Waiver of Default...................................36
SECTION 4.9 Control by Securityholders........................................................36
SECTION 4.10 Waiver of Past Defaults..........................................................37
SECTION 4.11 Trustee to Give Notice of Default,
But May Withhold in Certain
Circumstances.......................................................37
SECTION 4.12 Right of Court to Require Filing of
Undertaking to Pay Costs............................................38
SECTION 4.13 Waiver of Stay or Extension Laws.................................................39
ARTICLE FIVE
CONCERNING THE TRUSTEE
SECTION 5.1 Duties and Responsibilities of the
Trustee; During Default; Prior to
Default.............................................................39
-iv-
<PAGE>
Page
SECTION 5.2 Certain Rights of the Trustee.....................................................41
SECTION 5.3 Trustee Not Responsible for Recitals,
Disposition of Securities or
Application of Proceeds Thereof.....................................43
SECTION 5.4 Trustee and Agents May Hold
Securities; Collections, etc........................................43
SECTION 5.5 Compensation and Indemnification of
Trustee and Its Prior Claim.........................................44
SECTION 5.6 Right of Trustee to Rely on Officers'
Certificate, etc....................................................45
SECTION 5.7 Persons Eligible for Appointment as
Trustee.............................................................45
SECTION 5.8 Resignation and Removal; Appointment
of Successor Trustee................................................46
SECTION 5.9 Acceptance of Appointment by
Successor Trustee...................................................48
SECTION 5.10 Merger, Conversion, Consolidation or
Succession to Business of Trustee...................................49
ARTICLE SIX
CONCERNING THE SECURITYHOLDERS
SECTION 6.1 Evidence of Action Taken by
Securityholders.....................................................50
SECTION 6.2 Proof of Execution of Instruments and
of Holding of Securities............................................50
SECTION 6.3 Holders to Be Treated as Owners...................................................50
SECTION 6.4 Securities Owned by Issuer Deemed Not
Outstanding.........................................................51
SECTION 6.5 Right of Revocation of Action Taken...............................................52
SECTION 6.6 Record Date for Consents and Waivers..............................................52
ARTICLE SEVEN
SUPPLEMENTAL INDENTURES
SECTION 7.1 Supplemental Indentures Without
Consent of Securityholders..........................................53
-v-
<PAGE>
Page
SECTION 7.2 Supplemental Indentures with Consent
of Securityholders..................................................55
SECTION 7.3 Effect of Supplemental Indenture..................................................57
SECTION 7.4 Documents to be Given to Trustee..................................................57
SECTION 7.5 Notation on Securities in Respect of
Supplemental Indentures.............................................57
ARTICLE EIGHT
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 8.1 Covenant Not to Merge, Consolidate,
Sell or Convey Property Except
Under Certain Conditions............................................57
SECTION 8.2 Successor Corporation or Entity
Substituted.........................................................58
SECTION 8.3 Opinion of Counsel and Officers'
Certificate to Trustee..............................................59
ARTICLE NINE
SATISFACTION AND DISCHARGE
OF INDENTURE; UNCLAIMED MONEYS
SECTION 9.1 Satisfaction and Discharge of
Indenture...........................................................60
SECTION 9.2 Application by Trustee of Funds
Deposited for Payment of
Securities..........................................................61
SECTION 9.3 Repayment of Moneys Held by Paying
Agent...............................................................62
SECTION 9.4 Return of Moneys Held by Trustee and
Paying Agent Unclaimed for Two
Years...............................................................62
SECTION 9.5 Indemnity for U.S. Government
Obligations.........................................................63
-vi-
<PAGE>
Page
ARTICLE TEN
MISCELLANEOUS PROVISIONS
SECTION 10.1 Partners, Incorporators,
Stockholders, Officers and
Directors of Issue Exempt from
Individual Liability................................................63
SECTION 10.2 Provisions of Indenture for the Sole
Benefit of Parties and
Securityholders.....................................................63
SECTION 10.3 Successors and Assigns of Issuer
Bound by Indenture..................................................63
SECTION 10.4 Notices and Demands on Issuer,
Trustee and Securityholders.........................................64
SECTION 10.5 Officers' Certificates and Opinions
of Counsel; Statements to Be
Contained Therein...................................................65
SECTION 10.6 Payments Due on Saturdays, Sundays
and Legal Holidays..................................................66
SECTION 10.7 Conflict with TIA................................................................67
SECTION 10.8 Communications by Holders with Other
Holders.............................................................67
SECTION 10.9 Issuer to Furnish Trustee Names and
Addresses of Holders................................................67
SECTION 10.10 New York Law to Govern..........................................................67
SECTION 10.11 Counterparts....................................................................68
SECTION 10.12 Effect of Headings..............................................................68
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 11.1 Right of Optional Redemption;
Prices..............................................................68
SECTION 11.2 Notice of Redemption; Partial
Redemptions.........................................................68
SECTION 11.3 Payment of Securities Called for
Redemption..........................................................70
-vii-
<PAGE>
Page
SECTION 11.4 Exclusion of Certain Securities from
Eligibility for Selection for
Redemption..........................................................71
SECTION 11.5 Conversion Arrangement on Call for
Redemption..........................................................72
ARTICLE TWELVE
CONVERSION OF SECURITIES
SECTION 12.1 Conversion Privilege.............................................................73
SECTION 12.2 Exercise of Conversion Privilege.................................................74
SECTION 12.3 Fractional Shares................................................................76
SECTION 12.4 Adjustment of Conversion Price...................................................76
SECTION 12.5 Continuation of Conversion Privilege
in Case of Reclassification,
Reorganization, Change, Merger,
Consolidation or Sale of Assets.....................................81
SECTION 12.6 Notice of Certain Events.........................................................82
SECTION 12.7 Taxes on Conversion..............................................................83
SECTION 12.8 Issuer to Provide Class A Common
Stock...............................................................84
SECTION 12.9 Disclaimer of Responsibility for
Certain Matters.....................................................85
SECTION 12.10 Return of Funds Deposited for
Redemption of Converted Securities..................................86
ARTICLE THIRTEEN
RIGHT TO REQUIRE REDEMPTION UPON CHANGE IN CONTROL
SECTION 13.1 Right to Require Redemption......................................................86
SECTION 13.2 Notices; Method of Exercising
Redemption Right, etc...............................................87
SECTION 13.3 Definition of Change in Control..................................................89
SECTION 13.4 Limitation on Right to Require
Redemption..........................................................90
-viii-
<PAGE>
ARTICLE FOURTEEN
REPURCHASE OF SECURITIES AT OPTION OF THE HOLDER
SECTION 14.1 General ....................................................................91
SECTION 14.2 Issuer's Right to Elect Manner of
Payment of Repurchase Price.........................................93
SECTION 14.3 Repurchase with Cash.............................................................94
SECTION 14.4 Payment by Issuance of Class A
Common Stock........................................................94
SECTION 14.5 Notice of Election...............................................................97
SECTION 14.6 Covenants of the Issuer..........................................................99
SECTION 14.7 Procedure upon Repurchase........................................................99
SECTION 14.8 Taxes ...................................................................100
SECTION 14.9 Effect of Repurchase Notice.....................................................100
SECTION 14.10 Deposit of Repurchase Price....................................................102
SECTION 14.11 Securities Repurchased in Part.................................................102
SECTION 14.12 Issuer to Comply with Securities
Laws Upon Purchase of Securities...................................103
SECTION 14.13 Repayment to the Issuer........................................................103
SIGNATURES ............................................................................104
EXHIBIT A -- FORM OF SECURITY
</TABLE>
-ix-
<PAGE>
THIS INDENTURE, dated as of October 4, 1999 between American
Tower Corporation, a Delaware corporation (the "Issuer"), and The Bank of New
York, a New York banking corporation (the "Trustee"),
W I T N E S S E T H :
WHEREAS, the Issuer has duly authorized the issue of its 6.25%
Convertible Notes Due 2009 (the "Securities") of substantially the tenor and
amount hereinafter set forth;
WHEREAS, the Issuer has duly authorized the execution and
delivery of this Indenture to provide, among other things, for the
authentication, delivery and administration of the Securities; and
WHEREAS, all things necessary to make this Indenture a valid
indenture and agreement according to its terms have been done;
NOW, THEREFORE:
In consideration of the premises and the purchases of the
Securities by the Holders thereof, the Issuer and the Trustee mutually covenant
and agree for the equal and proportionate benefit of the respective Holders from
time to time of the Securities as follows:
ARTICLE ONE
DEFINITIONS
SECTION 1.1 Certain Terms Defined. The following terms (except
as otherwise expressly provided or unless the context otherwise clearly
requires) for all purposes of this Indenture and of any indenture supplemental
hereto shall have the respective meanings specified in this Section. All other
terms used in this Indenture which are defined in the TIA, or the definitions of
which in the Securities Act are referred to in the TIA (except as herein
otherwise expressly provided or unless the context otherwise requires), shall
<PAGE>
have the meaning assigned to such terms in the TIA and the Securities Act as in
force at the date of this Indenture. All accounting terms used herein and not
expressly defined shall have the meanings given to them in accordance with
generally accepted accounting principles, and the term "generally accepted
accounting principles" shall mean such accounting principles which are generally
accepted at the date or time of any computation. The words "herein", "hereof"
and "hereunder" and other words of similar import refer to this Indenture as a
whole and not to any particular Article, Section or other subdivision. The terms
defined in this Article include the plural as well as the singular.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified 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.
"Agent" means any Registrar, Paying Agent or Conversion Agent.
"Board of Directors" means either the Board of Directors of
the Issuer or any committee of such Board duly authorized to act on its behalf.
"Board Resolution" means a copy of one or more resolutions,
certified by the secretary or an assistant secretary of the Issuer to have been
duly adopted by the Board of Directors and to be in full force and effect on the
date of such certification, and delivered to the Trustee.
"Business Day" means a day which in the City and State of New
York is neither Saturday, Sunday, a legal holiday nor a day on which banking
institutions and trust companies are authorized by law or regulation or
executive order to close.
-2-
<PAGE>
"Capital Stock" means (i) in the case of a corporation,
capital stock, (ii) in the case of any association or business entity, any and
all shares, interests, participations, rights or other equivalents (however
designated) or capital stock and (iii) in the case of a partnership, partnership
interests (whether general or limited) and any other interest or participation
that confers on a Person the right to receive a share of the profits and losses
of, or distributions of assets of, such partnership.
"Cash Equivalents" means (i) United States dollars, (ii)
securities issued or directly and fully guaranteed or insured by the United
States government or any agency or instrumentality thereof having maturities of
less than one year from the date of acquisition, (iii) certificates of deposit
and eurodollar time deposits with maturities of less than one year from the date
of acquisition, bankers' acceptances with maturities of less than one year and
overnight bank deposits, in each case with any lender party to the Credit
Agreements or with any domestic commercial bank having capital and surplus in
excess of $500,000,000 and a Keefe Bank Watch Rating of "B" or better, (iv)
repurchase obligations with a term of not more than seven days for underlying
securities of the types described in clauses (ii) and (iii) entered into with
any financial institution meeting the qualifications specified in clause (iii)
above and (v) commercial paper having the highest rating obtainable from Moody's
Investors Service, Inc. or Standard & Poor's Ratings Services, a division of the
McGraw-Hill Companies, Inc., and in each case maturing within nine months after
the date of acquisition.
"Change in Control" has the meaning assigned to it in Section
13.3.
"Change in Control Repurchase Date" has the meaning assigned
to it in Section 13.1.
"Change in Control Repurchase Price" has the meaning assigned
to it in Section 13.1.
-3-
<PAGE>
"Class A Common Stock" means the Class A Common Stock, par
value $0.01 per share, of the Issuer as the same exists at the Closing Date or
as such stock may be reconstituted from time to time.
"Closing Date" means the date (or, if more than one, the
earliest date) of original issuance of the Securities.
"Common Stock" means the Class A Common Stock, the Class B
Common Stock, par value $0.01 per share and the Class C Common Stock, par value
$0.01 per share, of the Issuer as the same exists at the Closing Date or as such
stock may be reconstituted from time to time.
"Conversion Agent" has the meaning assigned to it in Section
2.3.
"Conversion Price" means the principal amount of the
Securities convertible into one share of Class A Common Stock, subject to
adjustment in accordance with Section 12.4.
"Corporate Trust Office" means the office of the Trustee at
which the corporate trust business of the Trustee shall, at any particular time,
be principally administered, which office is, at the date as of which this
Indenture is dated, located at 101 Barclay Street, 21W, New York, NY 10286.
"Date of Conversion" has the meaning assigned to it in Section
12.2.
"Depositary" means with respect to Securities, a clearing
agency that is registered as such under the Exchange Act and is designated by
the Issuer to act as Depositary for such Securities (or any successor securities
clearing agency so registered.)
"Disposition" has the meaning assigned to it in Section 8.1.
-4-
<PAGE>
"DTC" means The Depository Trust Company, a New York
corporation.
"Equity Interests" means Capital Stock and all warrants,
options or other rights to acquire Capital Stock (including any securities that
is convertible into, or exchangeable for, Capital Stock).
"Event of Default" means any event or condition specified as
such in Section 4.1.
"Excess Amount" has the meaning assigned to it in Section 3.6.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Global Security" means a Security that is registered in the
security register kept by the Registrar in the name of a Depositary or a nominee
thereof.
"Holder", "Holder of Securities", "Securityholder" or other
similar terms mean in the case of any Security, the Person in whose name such
Security is registered in the security register kept by the Registrar for that
purpose in accordance with the terms hereof.
"Immediate Family Member" means, with respect to any
individual, such individual's spouse (past or current), descendants (natural or
adoptive, of the whole or half blood) of the parents of such individual, such
individual's grandparents and parents (natural or adoptive), and the
grandparents, parents and descendants of parents (natural or adoptive, of the
whole or half blood) of such individual's spouse (past or current).
"Indenture" means this instrument as originally executed and
delivered or, if amended or supplemented as herein provided, as so amended or
supplemented.
-5-
<PAGE>
"Issuer" means American Tower Corporation, a Delaware
corporation, and, subject to Article Eight, its successors and assigns.
"Issuer Notice" has the meaning assigned to it in Section
13.2.
"Issuer Order" means a written statement, request or order of
the Issuer which is signed in its name by its Chairman of the Board of
Directors, its Chief Executive Officer, its President, a Chief Operating
Officer, a Vice President, or its Chief Financial Officer, and, without
duplication, by its Treasurer, an Assistant Treasurer, its Controller, its
Secretary or an Assistant Secretary, of the Issuer, and delivered to the
Trustee.
"Issuer Repurchase Notice" has the meaning assigned to it in
Section 14.5.
"Issuer Repurchase Notice Date" has the meaning assigned to it
in Section 14.3.
"Last Sale Price" on any day means the last sale price of the
Class A Common Stock as reported on the composite tape for New York Stock
Exchange listed stocks (or if not listed or admitted to trading on such
exchange, then on the principal national securities exchange on which the Class
A Common Stock is listed or admitted to trading, or, if not listed or admitted
to trading on any national securities exchange, on NASDAQ or a similar
organization if NASDAQ is no longer reporting information) on such day or, if no
such sale takes place on such day, the last sale price for such day shall be the
average of the closing bid and asked prices regular way on the New York Stock
Exchange (or, if not listed or admitted to trading on such exchange, then on the
principal national securities exchange on which the Class A Common Stock is
listed or admitted to trading, or, if not listed or admitted to trading on any
national securities exchange, on NASDAQ or a similar organization if NASDAQ is
no longer reporting information) on such day.
-6-
<PAGE>
"NASDAQ" means the National Association of Securities Dealers
Automated Quotations National Market System.
"Officer" means the Chairman of the Board of Directors, the
Chief Executive Officer, the President, a Chief Operating Officer, a Vice
President, the Chief Financial Officer, the Treasurer, an Assistant Treasurer,
the Controller, the Secretary or an Assistant Secretary, of the Issuer.
"Officers' Certificate" means a certificate signed by the
Chairman of the Board of Directors, the Chief Executive Officer, the President,
a Chief Operating Officer, a Vice President, or the Chief Financial Officer and,
without duplication, by the Treasurer, an Assistant Treasurer, Controller, the
Secretary or an Assistant Secretary, of the Issuer, and delivered to the
Trustee. Each such certificate shall include the statements provided for in
Section 10.5, if and to the extent required hereby.
"Opinion of Counsel" means a written opinion, in form and
substance reasonably satisfactory to the Trustee, of counsel, who may be counsel
to the Issuer and who shall be acceptable to the Trustee. Each such opinion
shall include the statements provided for in Section 10.5, if and to the extent
required hereby.
"Outstanding", when used with reference to Securities, shall,
subject to the provision of Section 6.4, mean, as of any particular time, all
Securities authenti cated and delivered by the Trustee under this Indenture,
except
(a) Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(b) Securities, or portions thereof, for the payment or
redemption of which moneys in the necessary amount shall have been
deposited in trust with the Trustee or with any Paying Agent (other
than the Issuer) or shall have been set aside, segregated and
-7-
<PAGE>
held in trust by the Issuer (if the Issuer shall act as its own Paying
Agent), provided that if such Securities are to be redeemed prior to
the maturity thereof, notice of such redemption shall have been given
as herein provided, or provision satisfactory to the Trustee shall have
been made for giving such notice; and
(c) Securities in substitution for which other Securities
shall have been authenticated and delivered, or which shall have been
paid, pursuant to the terms of Section 2.7 (unless proof satisfactory
to the Trustee is presented that any of such Securities is held by a
Person in whose hands such Security is a legal, valid and binding
obligation of the Issuer), Securities converted into Class A Common
Stock pursuant hereto and Securities not deemed Outstanding pursuant to
and for the purposes of the last sentence of Section 11.2.
"Paying Agent" has the meaning assigned to it in Section 2.3.
"Permitted Owner" has the meaning assigned to it in Section
13.3.
"Person" means any individual, corporation, part nership,
limited liability company, joint venture, association, joint stock company,
trust, unincorporated organization or government or any agency or political
subdivision thereof.
"principal" wherever used with reference to the Securities or
any Security or any portion thereof shall be deemed to include "and premium, if
any" whether or not so specified. (Reference is also made to Sections 13.2(c)
and 14.9.)
"Principal Stockholders" has the meaning assigned to it in
Section 13.3.
"Proceeding" has the meaning assigned to it in Section 12.2.
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"Redemption Date", has the meaning assigned to it in Section
11.2.
"Redemption Price", when used with respect to any Security to
be redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Registrar" has the meaning assigned to it in Section 2.3.
"Registration Right Agreement" means the Registration Rights
Agreement, dated as of October 4, 1999, among the Issuer and the initial
purchasers named therein.
"Related Party" with respect to any individual means (i) any
Immediate Family Member of such individual or (ii) any Person, the
beneficiaries, stockholders, partners, owners or Persons beneficially holding an
80% or more controlling interest of which consist of such individual or an
Immediate Family Member.
"Repurchase Date" has the meaning assigned to it in Section
14.1.
"Repurchase Price" has the meaning assigned to it in Section
14.1.
"Responsible Officer", when used with respect to the Trustee
means any officer within the corporate trust department of the Trustee,
including any vice president, assistant vice president, assistant secretary,
assistant treasurer, trust officer or any other officer of the Trustee
customarily performing corporate trust functions similar to those performed by
the Persons who at the time shall be such officers, respectively, or to whom any
corporate trust matter is referred because of such Person's knowledge of and
familiarity with the particular subject and who shall have direct responsibility
for the administration of this Indenture.
"Restricted Global Security" has the meaning assigned to it in
Section 2.1.
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"Restricted Security" means any Security issued in exchange
for an interest in the Restricted Global Security until such time as the
Restricted Security legend contemplated in Section 2.14 need not be provided on
the Security.
"SEC" means the Securities and Exchange Commission or any
successor agency.
"Security" or "Securities" has the meaning stated in the first
recital of this Indenture and more particularly means any securities
authenticated and delivered under this Indenture.
"Securities Act" means the Securities Act of 1933, as amended.
"Subsidiary" means, with respect to any Person, any
corporation, association or other business entity of which more than 50% of the
total voting power of Equity Interests entitled (without regard to the
occurrence of any contingency) to vote in the election of directors, managers or
trustees or other governing body thereof is at the time owned or controlled by
such Person (regardless of whether such Equity Interests are owned directly or
through one or more other Subsidiaries of such Person or a combination thereof).
"Surviving Person" means, with respect to any Person involved
in or that makes any Disposition, the Person formed by or surviving such
Disposition or the Person to which such Disposition is made.
"TIA" (except as otherwise provided in Sections 7.1 and 7.2)
means the Trust Indenture Act of 1939 as in force at the date as of which this
Indenture was originally issued.
"Trading Day" means each Monday, Tuesday, Wednesday, Thursday
and Friday, other than any day on which securities are not traded on the
applicable securities exchange or in the applicable securities market.
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"Trustee" means the entity identified as "Trustee" in the
first paragraph hereof and, subject to the provisions of Article Five, shall
also include any successor trustee. "Trustee" shall also mean or include each
Person who is then a trustee hereunder if at any time there is more than one
such Person.
"U.S. Government Obligations" means direct obliga tions of the
United States of America, backed by its full faith and credit.
ARTICLE TWO
SECURITIES
SECTION 2.1 Form and Dating. The Securities and the Trustee's
certificate of authentication shall be substantially in the form of Exhibit A
(including the legends appearing thereon), the terms of which are incorporated
in and made a part of this Indenture. The Securities may have notations, legends
or endorsements required by law, securities exchange (including NASDAQ) rules,
agreements to which the Issuer is subject or usage, including, if required by
Section 2.13, the legend contem plated thereby. The Issuer shall approve the
form of the Securities and any notation, legend or endorsement on them. Each
Security shall be dated the date of its authentication.
Upon their original issuance, Securities shall be issued in
the form of one or more Global Securities without interest coupons and shall be
registered in the name of DTC, as Depositary, or its nominee and deposited with
the Trustee, as custodian for DTC, for credit by DTC to the respective accounts
of beneficial owners of the Securities represented thereby (or such other
accounts as they may direct). Such Global Security or Securities are
collectively herein called the "Restricted Global Security". The Restricted
Global Security and any Restricted Security shall bear a different CUSIP or
other identifying number from any Security that is not a Restricted Global
Security or Restricted Security.
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SECTION 2.2 Execution and Authentication. Two Officers shall
sign the Securities for the Issuer by manual or facsimile signature. The
Issuer's seal shall be reproduced on the Securities.
If an Officer whose signature is on a Security no longer holds
that office at the time the Trustee authenticates the Security, the Security
shall be valid nevertheless.
A security shall not be valid until the Trustee manually signs
the certificate of authentication on the Security. The signature of the Trustee
shall be conclusive evidence that the Security has been authenticated under this
Indenture.
The Trustee shall authenticate Securities for original issue
in the aggregate principal amount of $300,000,000 upon an Issuer Order;
provided, however, that if the Issuer sells any Securities pursuant to the
option in the Purchase Agreement, dated September 28, 1999, between the Issuer
and the initial purchasers named therein, then the Trustee shall authenticate
Securities for original issue in the aggregate principal amount of up to
$360,000,000 upon an Issuer Order. The Issuer Order shall specify the amount of
Securities to be authenticated and the date on which the original issue of
Securities is to be authenticated. The aggregate principal amount of Securities
outstanding at any time may not exceed the amount set forth in the previous
sentence except as provided in Section 2.7.
The Trustee's authentication of Securities pursuant to the
next preceding paragraph shall be conditioned upon receipt of each of the
following in form and substance reasonably satisfactory to the Trustee on or
prior to the Closing Date:
A. An Officer's Certificate to the effect that:
(1) All conditions required to be satisfied under
this Indenture for the issuance of the
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Securities have been so satisfied on or prior to the Closing
Date; and
(2) No Event of Default shall have occurred and be
continuing.
B. An Opinion of Counsel to the effect that:
(1) The execution and delivery of the Indenture, the
issuance of the Securities and the fulfillment of the terms
herein and therein contemplated will not conflict with the
charter or bylaws of the Issuer, or constitute a breach of or
default under any material agreement, indenture, evidence of
indebtedness, mortgage, deed of trust or other material
agreement or instrument known to such counsel to which the
Issuer is a party or by which it is bound, or any law,
administrative regulation, rule, judgment, order or decree
known to such counsel to be applicable to the Issuer or any of
its properties;
(2) The Indenture has been duly authorized by the
Issuer, executed and delivered by the Issuer, and is a legal,
valid and binding agree ment of the Issuer enforceable in
accordance with its terms, except as such enforceability may
be limited by bankruptcy, insolvency, reorganization,
receivership, moratorium and similar laws affect ing the
rights and remedies of creditors and obligations of debtors
generally and by the effect of general principles of equity,
whether applied by a court of law or equity;
(3) All legally required proceedings by the Issuer in
connection with the authorization and issuances of the
Securities have been duly taken, and all orders, consents or
other authorizations or approvals of any public board or body
legally required for the validity of the Securities have been
obtained; and
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(4) The Securities, when executed and authenticated
in accordance with the terms of this Indenture and delivered
upon payment therefor, will be legal, valid and binding
obligations of the Issuer enforceable in accordance with their
terms, except as such enforceability may be limited by
bankruptcy, insolvency, reorganization, receivership,
moratorium and similar laws affecting the rights and remedies
of creditors and obligations of debtors generally and by the
effect of general principles of equity, whether applied by a
court of law or equity.
The Trustee may appoint an authenticating agent acceptable to
the Issuer to authenticate Securities. Unless limited by the term of such
appointment, an authenticating agent may authenticate Securities whenever the
Trustee may do so. Each reference in this Indenture to authentication by the
Trustee includes authentication by such agent. An authenticating agent has the
same rights as an Agent to deal with the Issuer or an Affiliate of the Issuer.
The Securities shall be issuable only in regis tered form
without coupons and only in denominations of $1,000 and any integral multiple
thereof.
SECTION 2.3 Registrar, Paying Agent and Conver sion Agent. The
Issuer shall maintain in The Borough of Manhattan in The City of New York, New
York, an office or agency where Securities may be presented for registration of
transfer or for exchange ("Registrar"), an office or agency where Securities may
presented for payment and repurchase ("Paying Agent"), an office or agency where
Securities may be presented for conversion ("Conversion Agent") and an office or
agency where notices and demands to or upon the Issuer in respect of the
Securities and this Indenture may be served. The Registrar shall keep a register
of the Securities and of their transfer and exchange. The Issuer may appoint one
or more co-Registrars, one or more additional Paying Agents and one or more
additional Conversion Agents, which may be inside or outside The Borough of
Manhattan. The term "Registrar" includes any co-
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Registrar, the term "Paying Agent" includes any additional Paying Agent and the
term "Conversion Agent" includes any additional Conversion Agent. The Issuer may
change any Registrar, Paying Agent or Conversion Agent without notice to any
Holder. If the Issuer fails to appoint or maintain another person as Registrar,
Paying Agent or Conversion Agent, the Trustee shall act as such. The Issuer or
any Affiliate of the Issuer may act as Registrar or Conversion Agent. Except for
purposes of Article Nine, the Issuer or any Affiliate of the Issuer may act as
Paying Agent.
The Issuer shall enter into an appropriate agency agreement
with any Agent not a party to this Indenture. The agreement shall implement the
provisions of this Indenture that relate to such Agent. The Issuer shall
promptly notify the Trustee of the name and address of any Agent not a party to
this Indenture. If the Issuer fails to maintain a Registrar, Paying Agent,
Conversion Agent or agent for service of notices and demands, or fails to give
the foregoing notice, the Trustee shall act as such.
The Issuer initially appoints the Trustee as Registrar, Paying
Agent, Conversion Agent and agent for service of notices and demands.
SECTION 2.4 Paying Agent to Hold Money in Trust. Not later
than 11:00 a.m., Eastern Standard Time, on each due date of the principal of or
interest on any Securities, the Issuer shall deposit with the Paying Agent a sum
of money in immediately available funds sufficient to pay such principal or
interest so becoming due. Subject to Section 9.2, the Paying Agent shall hold in
trust for the benefit of Securityholders or the Trustee all money held by the
Paying Agent for the payment of principal of or interest on the Securities, and
shall notify the Trustee in writing of any default by the Issuer in making any
such payment. If the Issuer or an Affiliate of the Issuer acts as Paying Agent,
it shall on or before each due date of the principal of or interest on any
Securities segregate the money and hold it as a separate trust fund. The Issuer
at any time may require a Paying Agent to pay all money held by it to the
Trustee, and the Trustee may at any time during the
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continuance of any default, upon written request to a Paying Agent, require such
Paying Agent to forthwith pay to the Trustee all sums so held in trust by such
Paying Agent. Upon doing so, the Paying Agent (other than the Issuer) shall have
no further liability for the money.
SECTION 2.5 Holder Lists. The Trustee shall preserve in as
current a form as is reasonably practicable the most recent list available to it
of the names and addresses of the Holders. If the Trustee is not the Registrar,
the Issuer shall promptly furnish to the Trustee on or 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 for
the names and addresses of the Holders.
SECTION 2.6 Transfer and Exchange. When a Security is
presented to the Registrar with a request to register a transfer thereof, the
Registrar shall register the transfer as requested, and, when Securities are
presented to the Registrar with a request to exchange them for an equal
principal amount of Securities of other authorized denominations, the Registrar
shall make the exchange as requested; provided that 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
Issuer and the Registrar duly executed by the Holder thereof or his attorney
duly authorized in writing. To permit registration of transfers and exchanges,
the Issuer shall execute and the Trustee shall authenticate Securities at the
Issuer's request. The Issuer shall not be required (i) to issue, register the
transfer of or exchange Securities during a period beginning at the opening of
business on a Business Day 15 days before the day of any selection of Securities
for redemption under Section 11.2 and ending at the close of business on the day
of selection, or (ii) to register the transfer of or exchange any Security so
selected for redemption in whole or in part, except the unredeemed portion of
any Security being redeemed in part. Any exchange or transfer shall be without
charge, except that the Issuer may require payment of a sum sufficient to
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cover any tax or other governmental charge that may be imposed in relation
thereto, but this provision shall not apply to any exchange pursuant to Section
7.5 or 11.2. Prior to due presentment for registration of transfer of any
Security, the Trustee, any Agent and the Issuer may deem and treat the Person in
whose name any Security is registered as the absolute owner of such Security for
the purpose of receiving payment of principal of and interest on such Security
and for all other purposes whatsoever, whether or not such Security is overdue,
and none of the Trustee, any Agent or the Issuer shall be affected by notice to
the contrary.
SECTION 2.7 Replacement Securities. If a mutilated Security is
surrendered to the Trustee, or if the Holder of a Security claims that the
Security has been lost, destroyed or wrongfully taken, and neither the Issuer
nor the Trustee has received written notice that such Security has been acquired
by a bona fide purchaser, the Issuer shall issue and the Trustee shall
authenticate a replacement Security if the requirements of Section 8-405 of the
New York Uniform Commercial Code, as in effect on the date of this Indenture,
are met, and there shall have been delivered to the Issuer and the Trustee
evidence to their satisfaction of the loss, destruction or theft of any Security
if such is the case. An indemnity bond will be required that is sufficient in
the judgment of the Issuer and the Trustee to protect the Issuer, the Trustee or
any Agent from any loss which any of them may suffer if a Security is replaced.
The Issuer may charge the Holder for its expenses (including the fees and
expenses of the Trustee) in replacing a Security. Every replacement Security is
an additional obligation of the Issuer. The provisions of this Section 2.7 are
exclusive and shall preclude all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Securities.
SECTION 2.8 Outstanding Securities. The Securities Outstanding
at any time are all of the Securities authenticated by the Trustee, except for
those canceled by it, those delivered to it for cancellation and those described
in this Section 2.8 as not Outstanding.
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If a Security is replaced pursuant to Section 2.7, it ceases
to be Outstanding until a Responsible Officer of the Trustee actually receives
proof satisfactory to it that the replaced Security is held by a bona fide
purchaser.
If the Paying Agent (other than the Issuer or an Affiliate of
the Issuer) holds on a redemption date or maturity date money sufficient to pay
the principal of and accrued interest on Securities payable on that date, then
on and after that date such Securities cease to be Outstanding and interest on
them ceases to accrue.
Subject to Section 6.4, a Security does not cease to be
Outstanding because the Issuer or an Affiliate of the Issuer holds the Security.
SECTION 2.9 Temporary Securities. Until defini tive Securities
are ready for delivery, the Issuer may prepare and, upon the order of the
Issuer, the Trustee shall authenticate temporary Securities. Temporary
Securities shall be substantially in the form of definitive Securities but may
have variations that the Issuer considers appropri ate for temporary Securities.
Without unreasonable delay, the Issuer 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 2.10 Cancellation. The Issuer at any time may deliver
Securities to the Trustee for cancellation. The Registrar, Paying Agent and
Conversion Agent shall forward to the Trustee any Securities surrendered to them
for transfer, exchange, payment or conversion. The Trustee and no one else shall
cancel all Securities surrendered for transfer, exchange, payment, conversion or
cancellation. The Issuer may not issue new Securities to replace Securities it
has paid or delivered to the Trustee for cancellation or which have been
converted. All canceled Securities shall be held by the Trustee and shall be
disposed of in accordance with its customary procedures (and
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certification of their cancellation shall be delivered to the Issuer).
SECTION 2.11 Defaulted Interest. If the Issuer defaults in a
payment of interest on the Securities, it shall pay the defaulted interest in
any lawful manner plus, to the extent lawful, interest payable on the defaulted
interest, to the persons who are Holders on a subsequent special record date,
which date shall be at least five Business Days prior to the payment date, in
each case at the rate provided in the Securities and in Section 3.1. The Issuer
shall fix or cause to be fixed each such special record date and payment date.
At least 15 days before a special record date, the Issuer (or the Trustee in the
name of and at the expense of the Issuer) shall forward to the Holders a notice
prepared by the Issuer that states the special record date, the related payment
date and the amount of such interest to be paid.
SECTION 2.12 CUSIP Numbers. The Issuer in issuing the
Securities may use "CUSIP" numbers (if then generally in use), and, if so, the
Trustee shall use "CUSIP" numbers in notices of redemption as a convenience to
Holders; provided that any such notice may state that no representation is made
as to the correctness of such numbers either as printed on the Securities or as
contained in any notice of redemption and that reliance may be placed only on
the other identification numbers printed on the Securities, and any such
redemption shall not be affected by any defect in or omission of such numbers.
The Company will promptly notify the Trustee of any change in the "CUSIP"
numbers.
SECTION 2.13 Global Securities.
(a) Each Global Security authenticated under this Indenture
shall be registered in the name of the Depositary designated by the Issuer for
such Global Security or a nominee thereof and delivered to such Depositary or a
nominee thereof or custodian therefor, and each such Global Security shall
constitute a single Security for all purposes of this Indenture.
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(b) Notwithstanding any other provision in this Indenture, no
Global Security may be exchanged in whole or in part for Securities registered,
and no transfer of a Global Security in whole or in part may be registered, in
the name of any Person other than the Depositary for such Global Security or a
nominee thereof unless (i) such Depositary (A) has notified the Issuer and the
Trustee in writing that it is unwilling or unable to continue as Depositary for
such Global Security or (B) has ceased to be a clearing agency registered as
such under the Exchange Act or announces an intention permanently to cease
business or does in fact do so, (ii) there shall have occurred and be continuing
an Event of Default with respect to such Global Security, or (iii) the Issuer
delivers an Officers' Certificate to the Trustee stating that the Issuer has
determined not to have all the Securities represented by the Global Security.
(c) If any Global Security is to be exchanged for other
Securities or cancelled in whole, it shall be surrendered by or on behalf of the
Depositary or its nominee to the Trustee, as Registrar, for exchange or
cancellation, as provided in this Article. If any Global Security is to be
exchanged for other Securities or cancelled in part, or if another Security is
to be exchanged in whole or in part for a beneficial interest in any Global
Security, in each case as provided in this Article, then either (i) such Global
Security shall be so surrendered for exchange or cancellation, as provided in
this Article, or (ii) the principal amount thereof shall be reduced or increased
by an amount equal to the portion thereof to be so exchanged or cancelled, or
equal to the principal amount of such other Security to be so exchanged for a
beneficial interest therein, as the case may be, by means of an appropriate
adjustment made on the records of the Trustee, as Registrar, whereupon the
Trustee shall instruct the Depositary or its authorized representative to make a
corresponding adjustment to its records in accordance with its rules and
procedures. Upon any such surrender or adjustment of a Global Security, the
Trustee shall as provided in this Article, authenticate and make available for
delivery any Securities issuable in exchange for such Global Security (or any
portion thereof)
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to or upon the order of, and registered in such names as may be directed in
writing by, the Depositary or its authorized representative. Upon the request of
the Trustee in connection with the occurrence of any of the events specified in
the preceding paragraph, the Issuer shall promptly make available to the Trustee
a reasonable supply of Securities that are not in the form of Global Securities.
The Trustee shall be entitled to rely upon any order, direction or request of
the Depositary or its authorized representative which is given or made pursuant
to this Article if such order, direction or request is given or made in
accordance with the Depositary's rules and procedures.
(d) Every Security authenticated and delivered upon
registration of transfer of, or in exchange for or in lieu of, a Global Security
or any portion thereof, whether pursuant to this Article or otherwise, shall be
authenticated and delivered in the form of, and shall be, a registered Global
Security, unless such Security is registered in the name of a Person other than
the Depositary for such Global Security or a nominee thereof, in which case such
Registered Security shall be authenticated and delivered in definitive, fully
registered form, without interest coupons.
(e) The Depositary or its nominee, as registered owner of a
Global Security, shall be the Holder of such Global Security for all purposes
under the Indenture and the Securities, and owners of beneficial interests in a
Global Security shall hold such interests pursuant to the Depositary's rules and
procedures. Accordingly, any such owner's beneficial interest in a Global
Security will be shown only on, and the transfer of such interest shall be
effected only through, records maintained by the Depositary or its nominee or
its participants and such owners of beneficial interests in a Global Security
will not be considered the owners or holders thereof. Notices given to the
Holders of the Security shall be deemed given if sent to the Depositary. The
Trustee shall have no obligation to the beneficial owners of the Securities.
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(f) Upon the transfer of beneficial interests in a Restricted
Global Security under circumstances permitting the removal of the Restricted
Securities legend contemplated in Section 2.14 if the Securities represented by
such beneficial interest were not in the form of a Global Security, such
transferred beneficial interest shall be represented by a beneficial interest in
a Global Security that is not a Restricted Global Security.
SECTION 2.14 Transfer Restrictions. (a) Securities shall be
stamped or otherwise be imprinted with the legends containing the transfer
restrictions set forth on the face of the text of the Securities attached as
Exhibit A hereto. The legends so provided on the face of the text of the
Securities that relate to Restricted Securities and Restricted Global Securities
may be removed from such Security, upon receipt by the Trustee of an Issuer
Order, (i) two years from the later of issuance of the Security or the date such
Security (or any predecessor) was last acquired from an "affiliate" of the
Issuer within the meaning of Rule 144 under the Securities Act, (ii) in
connection with a sale made pursuant to the volume (and other restrictions) of
Rule 144 under the Securities Act following one year from such time, or (iii) in
connection with any sale in a transaction registered under the Securities Act,
provided that, if the legend is removed and the Security is subsequently held by
such an affiliate of the Issuer, the legend shall be reinstated.
(b) Each Holder of a Security agrees to indemnify the Issuer and the
Trustee against any liability that may result from the transfer, exchange or
assignment of such Holder's security in violation of any provision of this
Indenture and/or applicable United States Federal or state securities law.
(c) The Trustee shall have no obligation or duty to monitor, determine
or inquire as to compliance with any restrictions on transfer imposed under this
Indenture or under applicable law with respect to any transfer of any interest
in any Security (including any transfers between or among Depositary
participants or beneficial owners of
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interest in any Global Security) other than to require delivery of such
certificates and other documentation or evidence as are expressly required by,
and to do so if and when expressly required by the terms of, this Indenture, and
to examine the same to determine substantial compliance as to form with the
express requirements hereof.
ARTICLE THREE
COVENANTS
SECTION 3.1 Payment of Principal and Interest. The Issuer
covenants and agrees that it will duly and punctually pay or cause to be paid
the principal of, and interest on, each of the Securities at the place or
places, at the respective times and in the manner provided in the Securities and
this Indenture. Interest on the Securities shall be computed on the basis of a
360-day year of twelve 30-day months. Each instalment of interest on the
Securities may be paid by mailing checks for such interest payable to or upon
the written order of the Holders of Securities entitled thereto as they shall
appear on the registry books of the Issuer.
SECTION 3.2 Written Statement to Trustee. The Issuer will
deliver to the Trustee, within 120 days after the end of each fiscal year of the
Issuer ending after the date hereof, an Officers' Certificate, stating that in
the course of the performance by the signers of their duties as officers of the
Issuer they would normally have knowledge of any default or non-compliance by
the Issuer in the perfor mance or fulfillment of any covenant, agreement or
condition contained in this Indenture, stating whether or not they have
knowledge of any such default or non-compliance (without regard to any period of
grace or requirement of notice provided hereunder), and, if so, specifying each
such default or non-compliance of which the signers have knowledge and the
nature thereof.
The Issuer shall deliver to the Trustee, as soon as possible and in any
event within five days after the Issuer
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becomes aware of the occurrence of any Event of Default or an event which, with
notice or the lapse of time or both, would constitute an Event of Default, an
Officers' Certificate setting forth the details of such Event of Default or
default and the action which the Issuer proposes to take with respect thereto.
SECTION 3.3 Corporate Existence. Subject to Article Eight, the
Issuer will do or cause to be done all things necessary to preserve and keep in
full force and effect its corporate existence, rights and franchises; provided
that the Issuer shall not be required to preserve its corporate existence or any
such right or franchise if the Issuer shall determine that the preservation
thereof is no longer desirable in the conduct of its business and that the loss
thereof is not disadvantageous in any material respect to the Holders of the
Securities.
SECTION 3.4 Reports by the Issuer. The Issuer covenants to
file with the Trustee, within 15 days after the Issuer is required to file the
same with the SEC, copies of the annual reports and of the information,
documents, and other reports (or copies of such portions of any of the foregoing
as the SEC may from time to time by rules and regulations prescribe) which the
Issuer may be required to file with the SEC pursuant to Section 13 or Section
15(d) of the Exchange Act, or if the Issuer is not required to file information,
documents, or reports pursuant to either of such sections, then to file with the
Trustee, in accordance with rules and regulations prescribed from time to time
by the SEC, such of the supplementary and periodic information, documents, and
reports which may be required pursuant to Section 13 of the Exchange Act; or, in
respect of a security listed and registered on a national securities exchange or
on NASDAQ as may be prescribed from time to time in such rules and regulations.
At any time when the Issuer is not subject to Section 13 or 15(d) of the
Exchange Act, upon request of Holders and prospective purchasers of Securities
or the Class A Common Stock issuable upon conversion thereof, the Issuer will
promptly furnish or cause to be furnished to such holders and prospective
purchasers, copies of the information required to be delivered to such holders
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and prospective purchasers of such securities pursuant to Rule 144A(d)(4) under
the Securities Act (or any successor provision thereto) in order to permit
compliance with Rule 144A in connection with resales by such holders of such
securities. The Issuer will pay the expenses of printing and distributing to
such holders and prospective purchasers all such 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 Issuer's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
SECTION 3.5 Waiver of Usury Defense. The Issuer covenants (to
the extent that it may lawfully do so) that it shall not assert, plead (as a
defense or otherwise) or in any manner whatsoever claim (and shall actively
resist any attempt to compel it to assert, plead or claim) in any action, suit
or proceeding that the interest rate on the Securities violates present or
future usury or other laws relating to the interest payable on any indebtedness
and shall not otherwise avail itself (and shall actively resist any attempt to
compel it to avail itself) of the benefits or advantages of any such laws.
SECTION 3.6 Payment of Excess Cash Dividends. If the Issuer
shall declare and pay cash dividends on its Class A Common Stock in an
annualized per share amount which exceeds the greater of (i) the annualized per
share amount of the immediately preceding cash dividend on its Class A Common
Stock (as adjusted to reflect any of the events listed in Sections 12.4 or 12.5)
and (ii) 15% of the Last Sale Price of the Class A Common Stock as of the
Trading Day immediately preceding the date of declaration of such dividend (the
per share amount of any such per share excess, to the extent of such per share
excess, being herein called an "Excess Amount"), then in any such event the
Holders shall have the right to receive, and the Issuer will pay to
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each such Holder, at the time of the payment of such Class A Common Stock
dividend, an amount equal to such Excess Amount (calculated by the Issuer on the
basis of the number of shares of Class A Common Stock that would have been
issued to a Holder upon conversion of the Securities held by such Holder on the
record date for the payment of such dividend) unless the Holder converts and
receives such dividend as a holder of Class A Common Stock. The Issuer shall
give the Trustee written notice of the payment of Excess Amounts to the Holders.
SECTION 3.7 Registration Rights. The Issuer agrees that the
Holders from time to time of Registrable Securities (as defined in the
Registration Rights Agreement) are entitled to the benefits of the Registration
Rights Agreement. Whenever in this Indenture there is mentioned, in any context,
the payment of interest on, or in respect of, any Security, such mention shall
be deemed to include mention of the payment of liquidated damages on Securities
constituting Registrable Securities as contemplated in Section 3 of the
Registration Rights Agreement to the extent that, in such context, such
liquidated damages are, were or would be payable in respect thereof pursuant to
the provisions of the Registration Rights Agreement.
ARTICLE FOUR
REMEDIES OF THE TRUSTEE AND
SECURITYHOLDERS ON EVENT OF DEFAULT
SECTION 4.1 Event of Default Defined; Accelera tion of
Maturity; Waiver of Default. "Event of Default" with respect to Securities where
used herein, means each one of the following events which shall have occurred
and be continuing (whatever the reason for such Event of Default and whether it
shall be voluntary or involuntary or be effected by operation of law or pursuant
to any judgment, decree or order of any court or any order, rule or regulation
of any administrative or governmental body):
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(a) default in the payment of any instalment of interest upon
any of the Securities as and when the same shall become due and
payable, and continuance of such default for a period of 30 days; or
(b) default in the payment of all or any part of the principal
of or premium, if any, upon any of the Securities as and when the same
shall become due and payable either at maturity, upon any redemption or
acceleration, by declaration or otherwise; or
(c) failure on the part of the Issuer to observe or perform
any other of the covenants or agreements on the part of the Issuer in
the Securities or in this Indenture contained for a period of 60 days
after the date on which written notice specifying such failure, stating
that such notice is a "Notice of Default" hereunder and demanding that
the Issuer remedy the same, shall have been given by registered or
certified mail, return receipt requested, to the Issuer by the Trustee,
or to the Issuer and the Trustee by the Holders of at least 25% in
aggregate principal amount of the Outstanding Securities; or
(d) a court having jurisdiction in the premises shall enter a
decree or order for relief in respect of the Issuer in an involuntary
case or proceeding under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law now or hereafter in
effect, or a decree or order adjudging the Issuer a bankrupt or
insolvent, approving as properly filed a petition seeking
reorganization, assignment, adjustment or composition of, or in respect
of, the Issuer under any applicable Federal or State law or appointing
a receiver, liquidator, assignee, custodian, trustee, sequestrator (or
similar official) of the Issuer or for any substantial part of its
property or ordering the winding up or liquidation of its affairs, and
such decree or order shall remain unstayed and in effect for a period
of 60 consecutive days; or
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(e) the Issuer shall commence a voluntary case or proceeding
under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law now or hereafter in effect, or any
other case or proceeding to be adjudicated a bankrupt or insolvent, or
consent to the entry of an order for relief in an involuntary case or
proceeding under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law or to the commencement
of any bankruptcy or insolvency case or proceeding against it, or to
the filing by it of a petition or answer or consent seeking
reorganization or relief under any applicable Federal or State law, or
consent to the filing of such petition or to the appointment or taking
possession by a receiver, liquidator, assignee, cus todian, trustee or
sequestrator (or similar official) of the Issuer or for any substantial
part of its prop erty, or make any general assignment for the benefit
of creditors, or the admission by it in writing of its inability to pay
its debts generally as they become due, or the taking of corporate
action by the Issuer in furtherance of any such action.
If an Event of Default occurs and is continuing with respect
to the Securities, then, and in each and every such case, unless the principal
of all the Securities shall have already become due and payable, either the
Trustee or the Holders of not less than 25% in aggregate principal amount of the
Securities then Outstanding hereunder, by notice in writing to the Issuer (and
to the Trustee if given by Securityholders), may declare the entire principal of
all the Securities, and the interest accrued thereon, to be due and payable
immediately, and upon any such declaration the same shall become immediately due
and payable. This provision, however, is subject to the condition that if, at
any time after the Securities shall have been so declared due and payable, and
before any judgment or decree for the payment of the moneys due shall have been
obtained or entered as hereinafter provided, the Issuer shall pay or shall
deposit with the Trustee a sum sufficient to pay all matured installments of
interest upon all the Securities and the principal of any and all Securities
which shall have
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become due otherwise than by acceleration (with interest upon such principal
and, to the extent that payment of such interest is enforceable under applicable
law, on overdue installments of interest, at the same rate as the rate of
interest specified in the Securities, to the date of such payment or deposit)
and such amount as shall be sufficient to cover reasonable compensation to the
Trustee and each predecessor Trustee, their respective agents, attorneys and
counsel, and all other expenses and liabilities incurred, and all advances made,
by the Trustee and each predecessor Trustee except as a result of negligence or
bad faith, and if any and all Events of Default under the Indenture, other than
the non-payment of the interest on and principal of Securities which shall have
become due by acceleration, shall have been cured, waived or otherwise remedied
as provided herein--then and in every such case of such a cure the Holders of a
majority in aggregate principal amount of the Securities then Outstanding, by
written notice to the Issuer and to the Trustee, may waive all defaults and
rescind and annul such declaration and its consequences, but no such waiver or
rescission and annulment shall extend to or shall affect any subsequent default
or shall impair any right consequent thereon.
SECTION 4.2 Collection of Indebtedness by Trustee; Trustee May
Prove Debt. The Issuer covenants that (a) in case default shall be made in the
payment of any instalment of interest on any of the Securities when such
interest shall have become due and payable, and such default shall have
continued for a period of 30 days or (b) in case default shall be made in the
payment of all or any part of the principal of or premium, if any, on any of the
Securities when the same shall have become due and payable, whether upon
maturity or upon any redemption or by declaration or otherwise, then upon demand
of the Trustee, the Issuer will pay to the Trustee for the benefit of the
Holders of the Securities the whole amount that then shall have become due and
payable on all such Securities for principal, premium, if any, or interest, as
the case may be (with interest to the date of such payment upon the overdue
principal and, to the extent that payment of such interest is enforceable under
applicable law, on overdue installments
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of interest at the same rate as the rate of interest specified in the
Securities; and in addition thereto, such further amount as shall be sufficient
to cover the costs and expenses of collection, including reasonable compensation
to the Trustee and each predecessor Trustee, their respective agents, attorneys
and counsel, and any expense and liabili ties incurred, and all advances made,
by the Trustee and each predecessor Trustee except as a result of its negligence
or bad faith.
Until such demand is made by the Trustee, the Issuer may pay
the principal of and premium, if any, and interest on the Securities to the
registered Holders, whether or not the Securities be overdue.
In case the Issuer shall fail forthwith to pay such amounts
upon such demand, the Trustee, in its own name and as trustee of an express
trust, shall be entitled and empowered to institute any action or proceedings at
law or in equity for the collection of the sums so due and unpaid, and may
prosecute any such action or proceedings to judgment or final decree, and may
enforce any such judgment or final decree against the Issuer or other obligor
upon the Securi ties and collect in the manner provided by law out of the
property of the Issuer or other obligor upon the Securities, wherever situated,
the moneys adjudged or decreed to be payable.
In case there shall be pending proceedings relative to the
Issuer or any other obligor upon the Securities under Title 11 of the United
States Code or any other applicable Federal or state bankruptcy, insolvency,
reorganization or other similar law, or in case a receiver, assignee or trustee
in bankruptcy or reorganization, liquidator, sequestrator or similar official
shall have been appointed for or taken possession of the Issuer or its property
or such other obligor, or in case of any other comparable judicial proceedings
relative to the Issuer or other obligor upon the Securities, or to the creditors
or property of the Issuer or such other obligor, the Trustee, irrespective of
whether the principal of the Securities shall then be due and payable as therein
expressed or by
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declaration or otherwise and irrespective of whether the Trustee shall have made
any demand pursuant to the provisions of this Section, shall be entitled and
empowered, by intervention in such proceedings or otherwise:
(a) to file and prove a claim or claims for the whole amount
of principal, premium, if any, and interest owing and unpaid in respect
of the Securities, and to file such other papers or documents as may be
necessary or advisable in order to have the claims of the Trustees
(including any claim for reasonable compensation to the Trustee and
each predecessor Trustee, and their respective agents, attorneys and
counsel, and for reimbursement of all expenses and liabilities
incurred, and all advances made, by the Trustee and each predecessor
Trustee, except as a result of negligence or bad faith) and of the
Securityholders allowed in any judicial proceedings relative to the
Issuer or other obligor upon the Securities, or to the creditors or
property of the Issuer or such other obligor,
(b) unless prohibited by applicable law and regulations, to
vote on behalf of the Holders of the Securities in any election of a
trustee or a standby trustee in arrangement, reorganization,
liquidation or other bankruptcy or insolvency proceedings or person
performing similar functions in comparable proceedings, and
(c) to collect and receive any moneys or other property
payable or deliverable on any such claims, and to distribute all
amounts received with respect to the claims of the Securityholders and
of the Trustee on their behalf; and any trustee, receiver, or
liquidator, custodian or other similar official is hereby authorized by
each of the Securityholders to make payments to the Trustee, and, in
the event that the Trustee shall consent to the making of payments
directly to the Securityholders, to pay to the Trustee such amounts as
shall be sufficient to cover reasonable compensation to the Trustee,
each predecessor Trustee
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and their respective agents, attorneys and counsel, and all other
expenses and liabilities incurred, and all advances made, by the
Trustee and each predecessor Trustee except as a result of negligence
or bad faith.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or vote for or accept or adopt on behalf of
any Securityholder any plan of reorganization, arrangement, adjustment or
caption 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 except, as aforesaid, to vote for the election of a trustee
in bankruptcy or similar person.
All rights of action and of asserting claims under this
Indenture, or under any of the Securities, may be prosecuted and enforced by the
Trustee without the possession of any of the Securities or the production
thereof on any trial or other proceedings relative thereto, and any such action
or proceedings instituted by the Trustee shall be brought in its own name as
trustee of an express trust, and any recovery of judgment, subject to the
payment of the expenses, disbursements and compensation of the Trustee, each
predecessor Trustee and their respective agents and attorneys, shall be for the
ratable benefit of the Holders of the Securities.
In any proceedings brought by the Trustee (and also any
proceedings involving the interpretation of any provision of this Indenture to
which the Trustee shall be a party) the Trustee shall be held to represent all
the Holders of the Securities in respect of which such action was taken, and it
shall not be necessary to make any Holders of the Securities parties to any such
proceedings.
SECTION 4.3 Application of Proceeds. Any moneys collected by
the Trustee pursuant to this Article in respect of Securities shall be applied
in the following order at the date or dates fixed by the Trustee and, in case of
the distribution of such moneys on account of principal or interest, upon
presentation of the several Securities and
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stamping (or otherwise noting) thereon the payment, or issuing
Securities in reduced principal amounts in exchange for the presented
Securities if only partially paid, or upon surrender thereof if fully
paid:
FIRST: To the payment of costs and expenses,
including any and all amounts due the Trustee under Section
5.5;
SECOND: In case the principal of the Securities shall
not have become and be then due and payable, to the payment of
interest on the Securities in default in the order of the
maturity of the installments of such interest, with interest
(to the extent that such interest has been collected by the
Trustee) upon the overdue installments of interest at the same
rate as the rate of interest specified in the Securities, such
payments to be made ratably to the person entitled thereto,
without discrimination or preference;
THIRD: In case the principal of the Securities shall
have become and shall be then due and payable, to the payment
of the whole amount then owing and unpaid upon all the
Securities for principal, premium, if any, and interest, with
interest upon the overdue principal and premium, if any, and
(to the extent that such interest has been collected by the
Trustee) upon overdue installments of interest at the same
rate as the rate of interest specified in the Securities; and
in case such moneys shall be insufficient to pay in full the
whole amount so due and unpaid upon the Securities, then to
the payment of such principal, premium, if any, and interest,
without preference or priority of principal (and premium, if
any) over interest, or of interest over principal (and
premium, if any), or of any instalment of interest over any
other instalment of interest, or of any Security over any
other Security, ratably to the aggregate of such principal,
premium, if any, and accrued and unpaid interest; and
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FOURTH: To the payment of the remainder, if any, to
the Issuer or any other person lawfully entitled thereto.
SECTION 4.4 Suits for Enforcement. In case an Event of Default
has occurred, has not been waived and is continuing, the Trustee may in its
discretion proceed to protect and enforce the rights vested in it by this
Indenture by such appropriate judicial proceedings as the Trustee shall deem
most effectual to protect and enforce any of such rights, either at law or in
equity or in bankruptcy or otherwise, whether for the specific enforcement of
any covenant or agreement contained in this Indenture or in aid of the exercise
of any power granted in this Indenture or to enforce any other legal or
equitable right vested in the Trustee by this Indenture or by law.
SECTION 4.5 Restoration of Rights or Abandonment of
Proceedings. In case the Trustee or any Securityholder shall have proceeded to
enforce any right under this Indenture and such proceedings shall have been
discontinued or abandoned for any reason, or shall have been determined
adversely to the Trustee or to such Securityholder, then and in every such case,
subject to any determination in such proceeding, the Issuer, the Trustee and the
Securityholders shall be restored severally and respectively to their former
positions and rights hereunder, and thereafter all rights, remedies and powers
of the Issuer, the Trustee and the Securityholders shall continue as though no
such proceedings had been taken.
SECTION 4.6 Limitations on Suits by Security holders. No
Holder of any Security shall have any right by virtue or by availing of any
provision of this Indenture to institute any action or proceeding, judicial or
otherwise, at law or in equity or in bankruptcy or otherwise upon or under or
with respect to this Indenture, or for the appoint ment of a trustee, receiver,
liquidator, custodian or other similar official or for any other remedy
hereunder, unless such Holder previously shall have given to the Trustee written
notice of a continuing Event of Default as herein before provided, and unless
also the Holders of not less
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than 25% in aggregate principal amount of the Securities then Outstanding shall
have made written request upon a Responsible Officer of the Trustee to institute
such action or proceedings in its own name as trustee hereunder and shall have
offered to the Trustee indemnity satisfactory to it as it may require against
the costs, expenses and liabilities to be incurred therein or thereby and the
Trustee for 45 days after its receipt of such notice, request and offer of
indemnity shall have failed to institute any such action or proceedings and no
direction inconsistent with such written request shall have been given to a
Responsible Officer of the Trustee pursuant to Section 4.9; it being understood
and intended, and being expressly covenanted by the Holder of every Security
with every other Holder of the Securities and the Trustee, that no one or more
Holders of Securities shall have any right in any manner whatever by virtue or
by availing of any provision of this Indenture to affect, disturb or prejudice
the rights of any other Holder of Securities, or to obtain or seek to obtain
priority over or preference to any other such Holder or to enforce any right
under this Indenture, except in the manner herein provided and for the equal,
ratable and common benefit of all Holders of Securities. For the protection and
enforcement of the provisions of this Section, each and every Securityholder and
the Trustee shall be entitled to such relief as can be given either at law or in
equity.
SECTION 4.7 Unconditional Right of Security holders to Receive
Principal, Premium and Interest, to Convert and to Institute Certain Suits.
Notwithstanding any other provision in this Indenture and any provision of any
Security, the right of any Holder of any Security to receive payment of the
principal of and premium, if any, and inter est on such Security on or after the
respective due dates expressed in such Security (or, in the case of redemption,
on the applicable Redemption Date or Repurchase Date), or to convert such
Security in accordance with Article Twelve, or to institute suit for the
enforcement of any such payment on or after such respective dates, or for the
enforcement of such conversion right, shall not be impaired or affected
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without the written consent of such Holder, with a copy thereof to the Trustee.
SECTION 4.8 Powers and Remedies Cumulative; Delay or Omission
Not Waiver of Default. Except as provided in Sections 2.7, no right or remedy
herein conferred upon or reserved to the Trustee or to the Securityholders is
intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at law
or in equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
No delay or omission of the Trustee or of any Holder of any of
the Securities to exercise any right or power accruing upon any Event of Default
occurring and continuing as aforesaid shall impair any such right or power or
shall be construed to be a waiver of any such Event of Default or an
acquiescence therein; and, subject to Section 4.6, every power and remedy given
by this Indenture or by law to the Trustee or to the Securityholders may be
exercised from time to time, and as often as shall be deemed expedient, by the
Trustee or by the Securityholders, as the case may be.
SECTION 4.9 Control by Securityholders. The Holders of a
majority in aggregate principal amount of the Securities at the time Outstanding
shall have the right to direct in writing the time, method, and place of
conducting any proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred on the Trustee; provided that such written
direction shall not be otherwise than in accordance with law and the provisions
of this Indenture; and provided further that (subject to the provisions of
Section 5.1) the Trustee shall have the right to decline to follow any such
direction if the Trustee, being advised by counsel, shall determine that the
action or proceeding so directed may expose the Trustee to personal liability or
if the Trustee in good faith by its board of
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directors or the executive committee thereof shall so determine that the actions
or forbearances specified in or pursuant to such direction would be unduly
prejudicial to the interests of Holders of the Securities not joining in the
giving of said direction, it being understood that (subject to Section 5.1) the
Trustee shall have no duty to ascertain whether or not such actions or
forbearances are unduly prejudicial to such Holders.
Nothing in this Indenture shall impair the right of the
Trustee in its discretion to take any action deemed proper by the Trustee and
which is not inconsistent with such direction by Securityholders.
SECTION 4.10 Waiver of Past Defaults. Prior to the declaration
of the maturity of the Securities as provided in Section 4.1, the Holders of a
majority in aggregate principal amount of the Securities at the time Outstanding
may on behalf of the Holders of all the Securities waive any past default or
Event of Default hereunder and its consequences, except a default in respect of
a covenant or provision hereof which cannot be modified or amended without the
consent of the Holder of each Security affected (including, without limitation,
the provisions with respect to payment of principal of and premium, if any, and
interest on such Security or with respect to conversion of such Security). A
copy of any such waiver or consent shall be delivered to the Trustee.
Upon any such waiver, such default shall cease to exist and be
deemed to have been cured and not to have occurred, and any Event of Default
arising therefrom shall be deemed to have been cured, and not to have occurred
for every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or Event of Default or impair any right consequent
thereon.
SECTION 4.11 Trustee to Give Notice of Default, But May
Withhold in Certain Circumstances. The Trustee shall, at the Issuer's expense,
transmit to the Holders of Securities, as the names and addresses of such
Holders appear on the registry books, notice by mail of all defaults
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known to a Responsible Officer of the Trustee, such notice to be transmitted
within 90 days after the occurrence thereof, unless such defaults shall have
been cured before the giving of such notice (the term "default" or "defaults"
for the purposes of this Section being hereby defined to mean any event or
condition which is, or with notice or lapse of time or both would become, an
Event of Default); provided that, except in the case of default in the payment
of the principal of or premium, if any, or interest on any of the Securities,
the Trustee shall be protected in withholding such notice if and so long as the
board of directors, the executive committee, or a trust committee of directors
or trustees and/or Responsible Officers of the Trustee in good faith determines
that the withholding of such notice is in the interests of the Securityholders.
SECTION 4.12 Right of Court to Require Filing of Undertaking
to Pay Costs. All parties to this Indenture agree, and each Holder of any
Security by his acceptance thereof shall be deemed to have agreed, that any
court may in its discretion require, 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, suffered or omitted by it as Trustee, the filing by any party
litigant in such suit other than the Trustee of an undertaking to pay the costs
of such suit, and that such court may in its discretion assess reasonable costs,
including attorneys' fees, against any party litigant in such suit including the
Trustee, having due regard to the merits and good faith of the claims or
defenses made by such party litigant; but the provisions of this Section shall
not apply to any suit instituted by the Trustee, to any suit instituted by any
Securityholder or group of Securityholders holding in the aggregate more than
10% in aggregate principal amount of the Securities at the time Outstanding, or
to any suit instituted by any Securityholder for the enforcement of the payment
of the principal of or interest on any Security on or after the due date
expressed in such Security or for the enforcement of a right to convert any
Security in accordance with Article Twelve.
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SECTION 4.13 Waiver of Stay or Extension Laws. The Issuer
covenants (to the extent that it may lawfully do so) that it will not at any
time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any stay or extension law wherever enacted, now or at
any time hereafter in force, which may affect the covenants or the performance
of this Indenture; and the Issuer (to the extent that it may lawfully do so)
hereby expressly waives all benefit or advantage of any such law and 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 FIVE
CONCERNING THE TRUSTEE
SECTION 5.1 Duties and Responsibilities of the Trustee; During
Default; Prior to Default. With respect to the Holders of Securities issued
hereunder, the Trustee, prior to the occurrence of an Event of Default and after
the curing or waiving of all Events of Default which may have occurred,
undertakes to perform such duties and only such duties as are specifically set
forth in this Indenture. In case an Event of Default with respect to the
Securities has occurred and is continuing (which has not been cured or waived),
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 their exercise, as a
prudent person would exercise or use under the circumstances in the conduct of
such person's own affairs.
No provision of this Indenture shall be construed to relieve
the Trustee from liability for its own negligent action, its own negligent
failure to act or its own wilful misconduct or bad faith, except that
(a) prior to the occurrence of an Event of Default and after
the curing or waiving of all such Events of Default which may have
occurred:
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(i) the duties and obligations of the Trustee with
respect to Securities shall be determined solely by the
express provisions of this Indenture, and the Trustee shall
not be liable except for the performance of such duties and
obligations as are specifically set forth in this Indenture,
and no implied covenants or obligations shall be read into
this Indenture against the Trustee; and
(ii) in the absence of bad faith on the part of the
Trustee, the Trustee may conclusively rely, as to the truth of
the statements and the correct ness of the opinions expressed
therein, upon any resolution, statement, officer's
certificate, or any other certificate, instrument or opinion
furnished to the Trustee and conforming to the requirements of
this Indenture; but in the case of any such statements,
certificates or opinions which by any provision hereof are
specifically required to be furnished to the Trustee, the
Trustee shall be under a duty to examine the same to determine
whether or not they conform to the requirements of this
Indenture;
(b) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer or Responsible Officers of
the Trustee, unless it shall be proved that the Trustee was negligent
in ascertaining the pertinent facts; and
(c) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with the
direction of Holders pursuant to Section 4.9 relating to the time,
method and place of conducting any proceeding for any remedy available
to the Trustee, or exercising any trust or power conferred upon the
Trustee, under this Indenture.
None of the provisions contained in this Indenture shall
require the Trustee to expend or risk its own funds or otherwise incur personal
financial liability in the
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performance of any of its duties or in the exercise of any of its rights or
powers, if there shall be reasonable ground for believing that the repayment of
such funds or adequate indemnity against such liability is not reasonably
assured to it.
SECTION 5.2 Certain Rights of the Trustee. Subject to Section
5.1:
(a) the Trustee may conclusively rely and shall be protected
in acting or refraining from acting upon any resolution, Officers'
Certificate or any other certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond, debenture,
note, coupon, security or other paper or document believed by it to be
genuine and to have been signed or presented by the proper party or
parties;
(b) any request, direction, order or demand of the Issuer
mentioned herein shall be sufficiently evidenced by an Officers'
Certificate (unless other evidence in respect thereof be herein
specifically prescribed); and any resolution of the Board of Directors
may be evidenced to the Trustee by a copy thereof certified by the
Secretary or an Assistant Secretary of the Issuer;
(c) the Trustee may consult with counsel of its selection at
the expense of the Issuer and any advice or Opinion of Counsel shall be
full and complete authorization and protection in respect of any action
taken, suffered or omitted to be taken by it hereunder in good faith
and in accordance with such advice or Opinion of Counsel;
(d) the Trustee shall be under no obligation to exercise any
of the trusts or powers vested in it by this Indenture at the request,
order or direction of any of the Securityholders pursuant to the
provisions of this Indenture, unless such Securityholders shall have
offered to the Trustee security or indemnity satisfactory to the
Trustee against the costs, expenses
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and liabilities which might be incurred therein or thereby;
(e) the Trustee shall not be liable for any action taken,
suffered or omitted by it in good faith and believed by it to be
authorized or within the discretion, rights or powers conferred upon it
by this Indenture;
(f) prior to the occurrence of an Event of Default hereunder
and after the curing or waiver of all Events of Default, the Trustee
shall not be bound to make any investigation into the facts or matters
stated in any resolution, certificate, statement, instrument, opinion,
report, notice, request, consent, order, approval, appraisal, bond,
debenture, note, coupon, security, or other paper or document unless
requested in writing so to do by the Holders of not less than a
majority in aggregate principal amount of the Securities then
Outstanding, but a Responsible Officer of the Trustee, in its
discretion, may make such further inquiries or investigation into such
facts or matters as it may see fit, and, if the Trustee shall determine
to make such inquiry or investigation, it shall be entitled to examine
the books, records and premises of the Issuer, personally or by agent
or attorney; provided that, if the payment within a reasonable time to
the Trustee of the costs, expenses or liabilities likely to be incurred
by it in the making of such investigation is, in the opinion of the
Trustee, not reasonably assured to the Trustee by the security afforded
to it by the terms of this Indenture, the Trustee may require indemnity
satisfactory to the Trustee against such expenses or liabilities as a
condition to proceeding; the expenses of every such examination shall
be paid by the Issuer or, if paid by the Trustee or any predecessor
trustee, shall be repaid by the Issuer upon demand;
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys not
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regularly in its employ and the Trustee shall not be responsible for
any misconduct or negligence on the part of any such agent or attorney
appointed with due care by it hereunder;
(h) the Trustee shall not be deemed to have notice of any
Default or Event of Default unless a Responsible Officer of the Trustee
has actual knowledge thereof or unless written notice of any event
which is in fact such a default is received by the Trustee at the
Corporate Trust Office of the Trustee, and such notice references the
Securities and this Indenture; and
(i) the rights, privileges, protections, immunities and
benefits given to the Trustee, including, without limitation, its right
to be indemnified, are extended to, and shall be enforceable by, the
Trustee in each of its capacities hereunder, and to each agent,
custodian and other Person employed to act hereunder.
SECTION 5.3 Trustee Not Responsible for Recitals, Disposition
of Securities or Application of Proceeds Thereof. The recitals contained herein
and in the Securi ties, except the Trustee's certificates of authentication,
shall be taken as the statements of the Issuer, and the Trustee assumes no
responsibility for the correctness of the same. The Trustee makes no
representation as to the validity or sufficiency of this Indenture or of the
Securi ties. The Trustee shall not be accountable for the use or application by
the Issuer of any of the Securities or of the proceeds thereof.
SECTION 5.4 Trustee and Agents May Hold Securities;
Collections, etc. The Trustee or any agent of the Issuer or the Trustee, in its
individual or any other capacity, may become the owner or pledgee of Securities
with the same rights it would have if it were not the Trustee or such agent and,
subject to Section 5.8, may otherwise deal with the Issuer and receive, collect,
hold and retain
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collections from the Issuer with the same rights it would have if it were not
the Trustee or such agent.
SECTION 5.5 Compensation and Indemnification of Trustee and
Its Prior Claim. The Issuer covenants and agrees to pay to the Trustee from time
to time, and the Trustee shall be entitled to, such compensation as the Company
and the Trustee shall from time to time agree in writing for all services that
the Trustee shall provide hereunder (which compensation shall not be limited by
any provision of law in regard to the compensation of a trustee of an express
trust) and the Issuer covenants and agrees to pay or reimburse the Trustee and
each predecessor Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by or on behalf of it in accordance
with any of the provisions of this Indenture (including the compensation and the
expenses and disbursements of its counsel and of all agents and other persons
not regularly in its employ) except any such expense, disbursement or advance as
may arise from its negligence or bad faith. The Issuer also covenants to
indemnify the Trustee and each predecessor Trustee for, and to hold it harmless
against, any loss, damage, claim, liability or expense including taxes (other
than taxes based upon, measured by or determined by the income of the Trustee),
incurred without negligence or bad faith on its part, arising out of or in
connection with the acceptance or administration of this Indenture or the trusts
hereunder and its duties hereunder, including but not limited to the costs and
expenses of defending itself against or investigating any claim (whether
asserted by the Company, any Holder or any other Person) or liability in
connection with the exercise or performance of any of its powers or duties
hereunder. The obligations of the Issuer under this Section to compensate and
indemnify the Trustee and each predecessor Trustee and to pay or reimburse the
Trustee and each predecessor Trustee for expenses, disbursements and advances
shall constitute additional indebtedness hereunder and shall survive the
satisfaction and discharge of this Indenture. Such additional indebtedness shall
be a senior claim to that of the Securities upon all property and funds held or
collected by the Trustee as such, except funds held in trust
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for the payment of principal of or interest on particular Securities, and the
Securities are hereby subordinated to such senior claim. When the Trustee incurs
expenses or renders services in connection with an Event of Default specified in
Section 4.1 or in connection with Article Four hereof, the expenses (including
the reasonable fees and expenses of its counsel) and the compensation for the
service in connection therewith are intended to constitute expenses of
administration under any bankruptcy law.
SECTION 5.6 Right of Trustee to Rely on Officers' Certificate,
etc. Subject to Sections 5.1 and 5.2, whenever in the administration of the
trusts of this Indenture the Trustee shall deem it necessary or desirable that a
matter be proved or established prior to taking or suffering or omitting any
action hereunder, such matter unless other evidence in respect thereof be herein
specifically prescribed) may, in the absence of negligence or bad faith on the
part of the Trustee, be deemed to be conclusively proved and established by an
Officers' Certificate delivered to the Trustee, and such certificate, in the
absence of negligence or bad faith on the part of the Trustee, shall be full
warrant to the Trustee for any action taken, suffered or omitted by it under the
provisions of this Indenture upon the faith thereof.
SECTION 5.7 Persons Eligible for Appointment as Trustee. The
Trustee hereunder shall at all times be a corporation organized and doing
business under the laws of the United States of America or of any State or the
District of Columbia. The Trustee and its direct parent shall at all times have
a combined capital and surplus of at least $50,000,000, and which is authorized
under such laws to exercise corporate trust powers and is subject to supervision
or examination by Federal, State or District of Columbia authority. If such
corporation publishes reports of condition at least annually, pursuant to law or
to the requirements of the aforesaid supervising or examining authority, then
for the purposes of this Section, the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published. In
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case at any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section, the Trustee shall resign immediately in the manner
and with the effect specified in Section 5.8.
The provisions of this Section 5.7 are in furtherance of and
subject to Section 310(a) of the TIA.
SECTION 5.8 Resignation and Removal; Appointment of Successor
Trustee. (a) The Trustee may at any time resign by giving written notice of
resignation to the Issuer. Upon receiving such notice of resignation, the Issuer
shall promptly appoint a successor trustee by written instrument in duplicate,
executed by authority of the Board of Directors, one copy of each instrument
shall be delivered to the resigning Trustee and one copy to the successor
trustee. If no successor trustee shall have been so appointed and have accepted
appointment within 30 days after the giving of such notice of resignation, the
resigning trustee may petition any court of competent jurisdiction for the
appointment of a successor trustee, or any Security holder who has been a bona
fide Holder of a Security or Securities for at least six months may, subject to
the provisions of Section 4.12, on behalf of himself and all others similarly
situated, petition any such court for the appointment of a successor trustee at
the expense of the Issuer. Such court may thereupon, after such notice, if any,
as it may deem proper and prescribe, appoint a successor trustee.
(b) If at any time any of the following shall occur:
(i) the Trustee shall fail to comply with the pro visions of
Section 310(b) of the TIA after written request therefor by the Issuer
or by any Securityholder who has been a bona fide Holder of a Security
or Securities for at least six months; or
(ii) the Trustee shall cease to be eligible in accordance with
the provisions of Section 5.7 and shall
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fail to resign after written request therefor by the Issuer or by any
Securityholders;
(iii) the Trustee shall became incapable of acting, or shall be
adjudged a bankrupt or insolvent, or a receiver or liquidator of the
Trustee or of its property shall be appointed, or any public officer
shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation;
then, in any such case, the Issuer may remove the Trustee and appoint a
successor trustee by written instrument, in duplicate, executed by order of the
Board of Directors of the Issuer, one copy of which instrument shall be
delivered to the Trustee so removed and one copy to the successor trustee, or
subject to the provisions of Section 4.12, any Securityholder who has been a
bona fide Holder of a Security or Securities for at least six months may on
behalf of himself and all others similarly situated, petition any court of
competent jurisdiction for the removal of the Trustee and the appointment of a
successor trustee. Such court may thereupon, after such notice, if any, as it
may deem proper and prescribe, remove the Trustee and appoint a successor
trustee.
(c) The Holders of a majority in aggregate principal amount of
the Securities at the time Outstanding may at any time remove the Trustee and
appoint a successor trustee by delivering to the Trustee so removed, to the
successor trustee so appointed and to the Issuer the evidence provided for in
Section 6.1 of the action in that regard taken by the Securityholders.
(d) Any resignation or removal of the Trustee and any
appointment of a successor trustee pursuant to any of the provisions of this
Section 5.8 shall become effective upon acceptance of appointment by the
successor trustee as provided in Section 5.9.
(e) The Issuer shall give notice of each resigna tion and each
removal of the Trustee and each appointment of
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a successor trustee by mailing written notice of such event by first-class mail,
postage prepaid, to the Holders of Securities affected as their names and
addresses appear in the Security register. Each notice shall include the name of
the successor trustee and the address of its principal corporate trust office.
SECTION 5.9 Acceptance of Appointment by Succes sor Trustee.
Any successor trustee appointed as provided in Section 5.8 shall execute and
deliver to the Issuer and to its predecessor trustee an instrument accepting
such appointment hereunder, and thereupon the resignation or removal of the
predecessor trustee shall become effective and such successor trustee, without
any further act, deed or conveyance, shall become vested with all rights,
powers, duties and obligations of its predecessor hereunder, with like effect as
if originally named as trustee herein; but, nevertheless, on the written request
of the Issuer or of the successor trustee, upon payment of its charges then
unpaid, the trustee ceasing to act shall, subject to Section 9.4, pay over to
the successor trustee all moneys at the time held by it hereunder and shall
execute and deliver an instrument prepared by the Issuer transferring to such
successor trustee all such rights, powers, duties and obligations. Upon request
of any such successor trustee, the Issuer shall execute any and all instruments
in writing for more fully and certainly vesting in and confirming to such
successor trustee all such rights and powers. Any trustee ceasing to act shall,
nevertheless, retain a prior claim upon all property or funds held or collected
by such trustee to secure any amounts then due it pursuant to the provisions of
Section 5.5.
Upon acceptance of appointment by a successor trustee as
provided in this Section 5.9, the Issuer shall mail notice thereof by
first-class mail to the Holders of Securities at their last addresses as they
shall appear in the Security register. If the acceptance of appointment is
substantially contemporaneous with the resignation, then the notice called for
by the preceding sentence may be combined with the notice called for by Section
5.8. If the Issuer fails to mail such notice within 10 days after acceptance of
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appointment by the successor trustee, the successor trustee shall cause such
notice to be mailed at the expense of the Issuer.
SECTION 5.10 Merger, Conversion, Consolidation or Succession
to Business of Trustee. Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Trustee shall be a
party, or any corporation succeeding to the cor porate trust business of the
Trustee, shall be the successor of the Trustee hereunder without the execution
or filing of any paper or any further act on the part of any of the parties
hereto, anything herein to the contrary notwithstanding; provided that such
corporation shall be qualified under the provisions of Section 310(b) of the TIA
and eligible under the provisions of Section 5.7.
In case at the time such successor to the Trustee shall
succeed to the trusts created by this Indenture any of the Securities shall have
been authenticated but not delivered, any such successor to the Trustee may
adopt the certificate of authentication of any predecessor trustee and deliver
such Securities so authenticated; and, in case at that time any of the
Securities shall not have been authen ticated, any successor to the Trustee may
authenticate such Securities either in the name of any predecessor hereunder or
in the name of the successor trustee; and in all such cases such certificate
shall have the full force which it is anywhere in the Securities or in this
Indenture provided that the certificate of the Trustee shall have; provided that
the right to adopt the certificate of authentication of any predecessor trustee
or to authenticate Securities of any series in the name of any predecessor
trustee shall apply only to its successor or successors by merger, conversion or
consolidation.
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ARTICLE SIX
CONCERNING THE SECURITYHOLDERS
SECTION 6.1 Evidence of Action Taken by Security holders. Any
request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be given or taken by Securityholders may be
embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such Securityholders in person or by an agent duly appointed in
writing; and, except as herein otherwise expressly provided, such action shall
become effective when such instrument or instruments are delivered to the
Trustee. Proof of execution of any such instrument or of a writing appointing
any such agent shall be sufficient for any purpose of this Indenture and
(subject to Sections 5.1 and 5.2) conclusive in favor of the Trustee and the
Issuer, if made in the manner provided in this Article.
SECTION 6.2 Proof of Execution of Instruments and of Holding
of Securities. Subject to Sections 5.1 and 5.2, the fact and date of the
execution of any instrument by any Securityholder or his agent or proxy, or the
authority of such an agent or proxy to execute such an instrument may be proved
(i) by the affidavit of a witness of such execution, (ii) by a certificate of a
notary public (or other officer authorized by law to take acknowledgments of
deeds) as to such execution, or (iii) in accordance with such reasonable rules
and regulations as may be prescribed by the Trustee or in such manner as shall
be reasonably satisfactory to the Trustee. The holding of Securities shall be
proved by the Security register or by a certificate of the registrar thereof.
SECTION 6.3 Holders to Be Treated as Owners. Prior to due
presentment of a Security for registration of transfer, the Issuer, the Trustee,
any Agent and any agent of the Issuer or the Trustee may deem and treat the
person in whose name any Security shall be registered upon the Security register
as the absolute owner of such Security (whether or not such Security shall be
overdue and
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notwithstanding any notation of ownership or other writing thereon) for the
purpose of receiving payment of or on account of the principal of and, subject
to the provisions of this Indenture, interest on such Security and for all other
purposes; and neither the Issuer nor the Trustee nor any Agent or agent of the
Issuer or the Trustee shall be affected by any notice to the contrary. All such
payments so made to any such person, or upon his order, shall be valid, and, to
the extent of the sum or sums so paid, effectual to satisfy and discharge the
liability for moneys payable upon any such Security.
SECTION 6.4 Securities Owned by Issuer Deemed Not Outstanding.
In determining whether the Holders of the requisite principal amount of
Outstanding Securities have concurred in any direction, consent or waiver under
this Indenture, Securities which are owned by the Issuer or any other obligor on
the Securities or any Affiliate of the Issuer or of such other obligor shall be
disregarded and deemed not to be Outstanding for the purpose of any such
determination, except that for the purpose of determining whether the Trustee
shall be protected in relying on any such direction, consent or waiver only
Securities which the Trustee knows are so owned shall be so disregarded. Securi
ties so owned which have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the Trustee in
writing the pledgee's right so to act with respect to such Securities and that
the pledgee is not the Issuer or any other obligor upon the Securities or any
Affiliate of the Issuer or of such other obligor. In case of a dispute as to
such right, the advice of counsel shall be full protection in respect of any
decision made by the Trustee in accordance with such advice. Upon request of the
Trustee, the Issuer shall furnish to the Trustee promptly an Officers'
Certificate listing and identifying all Securities, if any, known by the Issuer
to be owned or held by or for the account of any of the above-described Persons;
and, subject to Sections 5.1 and 5.2, the Trustee shall be entitled to accept
such Officers' Certificate as conclusive evidence of the facts therein set forth
and of the fact that all Securities not listed therein are Outstanding for the
purpose of any such determination.
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SECTION 6.5 Right of Revocation of Action Taken. At any time
prior to (but not after) the evidencing to the Trustee, as provided in Section
6.1, of the taking of any action by the Holders of the percentage in aggregate
principal amount of the Securities specified in this Indenture in connection
with such action, any Holder of a Security the serial number of which is shown
by the evidence to be included among the serial numbers of the Securities the
Holders of which have consented to such action may, by filing written notice at
the Corporate Trust Office and upon proof of holding as provided in this
Article, revoke such action so far as concerns such Security. Except as afore
said any such action taken by the Holder of any Security shall be conclusive and
binding upon such Holder and upon all future Holders and owners of such Security
and of any Securities issued in exchange or substitution therefor or on
registration or transfer thereof, irrespective of whether or not any notation in
regard thereto is made upon any such Security. Any action taken by the Holders
of the percentage in aggregate principal amount of the Securities specified in
this Indenture in connection with such action shall be conclusively binding upon
the Issuer, the Trustee and the Holders of all the Securities.
SECTION 6.6 Record Date for Consents and Waivers. The Issuer
may, but shall not be obligated to, direct the Trustee to establish a record
date for the purpose of determining the Persons entitled to (i) waive any past
default with respect to the Securities in accordance with Section 4.10, (ii)
consent to any supplemental indenture in accordance with Section 7.2 or (iii)
waive compliance with any term, condition or provision of any covenant hereunder
(if the Indenture should expressly provide for such waiver). If a record date is
fixed, the Holders of Securities on such record date, or their duly designated
proxies, and any such Persons, shall be entitled to waive any such past default,
consent to any such supplemental indenture or waive compliance with any such
term, condition or provision, whether or not such Holder remains a Holder after
such record date; provided, however, that unless such waiver or consent is
obtained from the Holders, or duly designated proxies, of the requisite
principal amount of Outstanding
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Securities prior to the date which is the 90th day after such record date, any
such waiver or consent previously given shall automatically and without further
action by any Holder be cancelled and of no further effect.
ARTICLE SEVEN
SUPPLEMENTAL INDENTURES
SECTION 7.1 Supplemental Indentures Without Consent of
Securityholders. The Issuer, when authorized by a resolution of its Board of
Directors, and the Trustee may from time to time and at any time enter into an
indenture or indentures supplemental hereto (which shall conform to the
provisions of the TIA as in force at the date of the execution thereof) for one
or more of the following purposes:
(a) to convey, transfer, assign, mortgage or pledge to the
Trustee as security for the Securities any property or assets;
(b) to evidence the succession of another corporation to the
Issuer, or successive successions, and the assumption by the successor
corporation of the covenants, agreements and obligations of the Issuer
pursuant to Article Eight;
(c) to add to the covenants of the Issuer such further
covenants, restrictions, conditions or provisions (including without
limitation provisions necessary or desirable to qualify this Indenture
under the TIA) as its Board of Directors and the Trustee shall consider
to be for the protection or benefit of the Holders of Securities, and
to make the occurrence, or the occurrence and continuance, of a default
in any such additional
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covenants, restrictions, conditions or provisions an Event of Default
permitting the enforcement of all or any of the several remedies
provided in this Indenture as herein set forth; provided that in
respect of any such additional covenant, restriction, condition or
provision such supplemental indenture may provide for a particular
period of grace after default (which period may be shorter or longer
than that allowed in the case of other defaults) or may provide for an
immediate enforcement upon such an Event of Default or may limit the
remedies available to the Trustee upon such an Event of Default or may
limit the right of the Holders of a majority in aggregate principal
amount of the Securities to waive such an Event of Default;
(d) to cure any ambiguity or to correct or supplement any
provision contained herein or in any supplemental indenture which may
be defective or inconsistent with any other provision contained herein
or in any supplemental indenture or to make such other provision in
regard to matters or questions arising under this Indenture or under
any supplemental indenture as the Board of Directors may deem necessary
or desirable, provided that no such action shall adversely affect the
interests of the Holders of the Securities;
(e) to provide for adjustment of conversion rights pursuant to
Section 12.5; or
(f) to evidence the removal or resignation of the Trustee and
the appointment of a successor Trustee or Trustees pursuant to Article
Five.
The Trustee is hereby authorized to join in the execution of
any such supplemental indenture, to make any further appropriate agreements and
stipulations, which may be therein contained, and to accept the conveyance,
transfer, assignment, mortgage or pledge of any property thereunder, but the
Trustee shall not be obligated to enter into any such supplemental indenture
which affects adversely the Trustee's own rights, duties, immunities or
liabilities under this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of
this Section 7.1 may be executed without the
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consent of the Holders of any of the Securities at the time Outstanding,
notwithstanding any of the provisions of Section 7.2.
SECTION 7.2 Supplemental Indentures with Consent of
Securityholders. With the consent (evidenced as provided in Article Six) of the
Holders of not less than a majority in aggregate principal amount of the
Securities at the time Outstanding, the Issuer, when authorized by a resolution
of its Board of Directors, and the Trustee may, from time to time and at any
time, enter into an indenture or indentures supplemental hereto (which shall
conform to the provisions of the TIA as in force at the date of execution
thereof) for the purpose of adding any provisions to or changing in any manner
or eliminating any of the provisions of this Indenture or of any supplemental
indenture or of modifying in any manner the rights of the Holders of the
Securities; provided that no such supplemental indenture shall (a) extend the
final maturity of any Security, or reduce the principal amount thereof or
premium, if any, thereon, or reduce the rate or extend the time of payment of
interest thereon, or any premium payable upon the redemption thereof, or change
the place of payment where, or the coin or currency in which, any principal,
premium or interest is payable, or reduce or alter the method of calculation of
any amount payable on redemption, repurchase or repayment thereof (or the time
at which any such redemption, repurchase or repayment may be made), or impair or
adversely affect the right of any Securityholder to institute suit for the
payment or conversion thereof or adversely affect the right to convert the
Securities in accordance with Article Twelve, in each case, without the consent
of the Holder of each Security so affected; provided no consent of any Holder of
any Security shall be necessary under this Section 7.2 to permit the Trustee and
the Issuer to execute supplemental indentures pursuant to Section 7.1(e) and
Section 12.5 of this Indenture; or (b) reduce the aforesaid percentage in
principal amount of Outstanding Securities, the consent of the Holders of which
is required for any such supplemental indenture, without the consent of the
Holders of each Security so affected; or (c) reduce the percentage of Securities
necessary to consent to waive any past default
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under this Indenture to less than a majority, without the consent of the Holders
of each Security so affected; or (d) modify any of the provisions of this
Section or Section 4.10, except to increase any such percentage provided in
either such Section or to provide that certain other provisions of this
Indenture cannot be modified or waived without the consent of the Holder of each
Security affected thereby.
Upon the request of the Issuer, accompanied by a copy of a
resolution of the Board of Directors (which resolution may provide general terms
or parameters for such action and may provide that the specific terms of such
action may be determined in accordance with or pursuant to an Issuer Order),
certified by the Secretary or an Assistant Secretary of the Issuer, authorizing
the execution of any such supplemental indenture, and upon the filing with the
Trustee of evidence of the consent of Securityholders and other documents, if
any, required by Section 6.1, the Trustee shall join with the Issuer in the
execution of such supplemental indenture unless such supplemental indenture
adversely affects the Trustee' own rights, duties, immunities or liabilities
under this Indenture or otherwise, in which case the Trustee may in its
discretion, but shall not be obligated to, enter into such supplemental
indenture.
It shall not be necessary for the consent of the
Securityholders under this Section to approve the particular form of any
proposed supplemental indenture, but it shall be sufficient if such consent
shall approve the substance thereof.
Promptly after the execution by the Issuer and the Trustee of
any supplemental indenture pursuant to the provisions of this Section, the
Issuer shall mail a notice thereof by first-class mail to the Holders of
Securities at their addresses as they shall appear on the registry books of the
Issuer, setting forth in general terms the substance of such supplemental
indenture. Any failure of the Issuer to mail such notice, or any defect therein,
shall not, however, in any way impair or affect the validity of any such
supplemental indenture.
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SECTION 7.3 Effect of Supplemental Indenture. Upon the
execution of any supplemental indenture pursuant to the provisions hereof, this
Indenture shall be and be deemed to be modified and amended in accordance
therewith and the respective rights, limitations of rights, obligations, duties
and immunities under this Indenture of the Trustee, the Issuer and the Holders
of Securities shall thereafter be determined, exercised and enforced hereunder
subject in all respects to such modifications and amendments, and all the terms
and conditions of any such supplemental indenture shall be and be deemed to be
part of the terms and conditions of this Indenture for any and all purposes.
SECTION 7.4 Documents to be Given to Trustee. The Trustee,
subject to the provisions of Sections 5.1 and 5.2, may upon request receive an
Officers' Certificate and an Opinion of Counsel as conclusive evidence that any
such supplemental indenture complies with the applicable provisions of this
Indenture.
SECTION 7.5 Notation on Securities in Respect of Supplemental
Indentures. Securities authenticated and delivered after the execution of any
supplemental indenture pursuant to the provisions of this Article may bear a
notation as to any matter provided for by such supplemental indenture. If the
Issuer shall so determine, new Securities so modified as to conform, in the
opinion of the Board of Directors, to any modification of this Indenture
contained in any such supplemental indenture may be prepared by the Issuer,
authenticated by the Trustee and delivered in exchange for the Securities then
Outstanding.
ARTICLE EIGHT
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 8.1 Covenant Not to Merge, Consolidate, Sell or Convey
Property Except Under Certain Conditions. The Issuer may not consolidate or
merge with or into (whether or not the Issuer is the Surviving Person), or sell,
assign, transfer, lease, convey or otherwise dispose of all or
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substantially all of its properties or assets in one or more related
transactions, to another Person (each a "Disposition"), unless:
(i) the Surviving Person is a corporation organized or existing under
the laws of the United States, any state thereof or the District of
Columbia;
(ii) the Surviving Person (if other than the Issuer) assumes all the
obligations of the Issuer under the Securities and this Indenture, and
makes provision for conversion rights in accordance with Section 12.5,
pursuant to a supplemental indenture in a form reasonably satisfactory
to the Trustee; and
(iii) immediately after such Disposition, no Event of Default or event
that, after the giving of notice or the passage of time or both, would
be an Event of Default, shall have occurred and be continuing.
SECTION 8.2 Successor Corporation or Entity Substituted. In
case of any such consolidation, merger, sale or conveyance, and following such
an assumption by the successor corporation, partnership or limited liability
company, such successor corporation, partnership or limited liability company
shall succeed to and be substituted for the Issuer, with the same effect as if
it had been named herein.
Such successor corporation, partnership or limited liability
company may cause to be signed, and may issue either in its own name or in the
name of the Issuer prior to such succession any or all of the Securities
issuable hereunder which theretofore shall not have been signed by the Issuer
and delivered to the Trustee; and, upon the order of such successor corporation,
partnership or limited liability company, instead of the Issuer, and subject to
all the terms, conditions and limitations in this Indenture prescribed, the
Trustee shall authenticate and shall deliver
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any Securities which previously shall have been signed and delivered by the
officers of the Issuer to the Trustee for authentication, and any Securities
which such successor corporation, partnership or limited liability company
thereafter shall cause to be signed and delivered to the Trustee for that
purpose. All of the Securities so issued shall in all respects have the same
legal rank and benefit under this Indenture as the Securities theretofore or
thereafter issued in accordance with the terms of this Indenture as though all
of such Securities had been issued at the date of the execution hereof.
In case of any such consolidation, merger, sale, lease or
conveyance, such changes in phraseology and form (but not in substance) may be
made in the Securities thereafter to be issued as may be appropriate.
In the event of any such sale or conveyance (other than a
conveyance by way of lease), the Issuer or any successor corporation,
partnership or limited liability company which shall theretofore have become
such in the manner described in this Article shall be discharged from all
obligations and covenants under this Indenture and the Securities and may be
liquidated and dissolved.
SECTION 8.3 Opinion of Counsel and Officers' Certificate to
Trustee. The Trustee, subject to the provisions of Sections 5.1 and 5.2, may
upon request receive an Opinion of Counsel prepared in accordance with Section
10.5 and an Officers' Certificate (confirming satisfaction of the conditions of
clauses (i), (ii) and (iii) of Section 8.1) as conclusive evidence that any such
consolidation, merger, sale, lease or conveyance, and any such assumption, and
any such liquidation or dissolution, complies with the applicable provisions of
this Indenture.
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ARTICLE NINE
SATISFACTION AND DISCHARGE
OF INDENTURE; UNCLAIMED MONEYS
SECTION 9.1 Satisfaction and Discharge of Indenture. If at any
time (a) the Issuer shall have paid or caused to be paid the principal of and
premium, if any, and interest on all the Securities then Outstanding hereunder,
as and when the same shall have become due and payable, or (b) the Issuer shall
have delivered to the Trustee for cancellation all Securities theretofore
authenticated (other than any Securities which shall have been destroyed, lost
or stolen and which shall have been replaced or paid as provided in Section 2.7)
or (c) (i) all such Securities not theretofore delivered to the Trustee for
cancellation (x) shall have become due and payable, or (y) are by their terms to
become due and payable within one year or are to be called for redemption within
one year under arrangements reasonably satisfactory to the Trustee for the
giving of notice of redemption, and (ii) the Issuer shall have irrevocably
deposited or caused to be deposited with the Trustee as trust funds the entire
amount in cash (other than moneys repaid by the Trustee or any Paying Agent to
the Issuer in accordance with Section 9.4) or U.S. Government Obligations
maturing as to principal and interest at such times and in such amounts as will
insure the availability of cash, or a combination thereof, sufficient in the
opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, to pay
the principal of and interest on all Securities on each date that such principal
or interest is due and payable; and if, in any such case, the Issuer shall also
pay or cause to be paid all other sums payable hereunder by the Issuer, then
this Indenture shall cease to be of further effect (except as to (i) rights of
registration of transfer, conversion and exchange of Securities, and the
Issuer's right of optional redemption contemplated in clause (c)(i)(y) above
(but not otherwise and not including the Holders' right of redemption or
repurchase contemplated by Article Thirteen or Article Fourteen), (ii)
substitution of apparently mutilated,
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defaced, destroyed, lost or stolen Securities, (iii) rights of the Holders of
Securities to receive payments of principal thereof and premium, if any and
interest thereon upon the original stated due dates therefor (but not upon
acceleration), (iv) the rights, obligations and immunities of the Trustee
hereunder, including any right to compensation and indemnification under Section
5.5, and (v) the rights of the Holders of Securities as beneficiaries hereof
with respect to the property so deposited with the Trustee payable to all or any
of them), and the Trustee, on Issuer Order accompanied by an Officers'
Certificate and an Opinion of Counsel stating that the provisions of this
Section have been complied with and at the cost and expense of the Issuer, shall
execute proper instruments prepared by the Issuer acknowledging such
satisfaction of and discharging this Indenture, provided, that the rights of
Holders of the Securities to receive amounts in respect of principal of,
premium, if any, and interest on the Securities held by them shall not be
delayed longer than required by then-applicable mandatory rules or policies of
any securities exchange upon which the Securities are listed. In addition, in
connection with the satisfaction and discharge pursuant to clause (c)(i)(y)
above, the Trustee shall give notice to the Holders of Securities of such
satisfaction and discharge. The Issuer agrees to reimburse the Trustee for any
costs or expenses thereafter reasonably and properly incurred and to compensate
the Trustee for any services thereafter reasonably and properly rendered by the
Trustee in connection with this Indenture or the Securities.
Notwithstanding the satisfaction and discharge of this
Indenture, the obligations of the Issuer to the Trustee under Section 5.5 shall
survive.
SECTION 9.2 Application by Trustee of Funds Deposited for
Payment of Securities. Subject to Section 9.4, all moneys and securities
deposited with the Trustee pursuant to Section 9.1 shall be held in trust and
applied by it to the payment, either directly or through any Paying Agent
(including the Issuer acting as its own Paying Agent), to the Holders of the
particular Securities for the
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payment or redemption of which such moneys or Securities have been deposited
with the Trustee of all sums due and to become due thereon for principal and
interest; but such moneys or securities need not be segregated from other funds
except to the extent required by law.
SECTION 9.3 Repayment of Moneys Held by Paying Agent. In
connection with the satisfaction and discharge of this Indenture with respect to
Securities, all moneys then held by any Paying Agent under the provisions of
this Indenture shall, upon Issuer Order, be repaid to it or paid to the Trustee
and thereupon such Paying Agent shall be released from all further liability
with respect to such moneys.
SECTION 9.4 Return of Moneys Held by Trustee and Paying Agent
Unclaimed for Two Years. Any moneys deposited with or paid to the Trustee or any
Paying Agent for the payment of the principal of or premium, if any, or interest
on any Security and not applied but remaining unclaimed for two years after the
date upon which such principal, premium or interest shall have become due and
payable shall, upon the written request of the Issuer and unless otherwise
required by mandatory provisions of applicable escheat or abandoned or unclaimed
property law, be repaid to the Issuer by the Trustee or such Paying Agent, and
the Holder of the Securities shall, unless otherwise required by mandatory
provisions of applicable escheat or abandoned or unclaimed property laws,
thereafter look only to the Issuer for any payment which such Holder may be
entitled to collect, and all liability of the Trustee or any Paying Agent with
respect to such moneys shall thereupon cease; provided, however, that the
Trustee or such Paying Agent, before being required to make any such repayment
with respect to moneys deposited with it for any payment, shall, at the expense
of the Issuer, mail by first-class mail to Holders of such Securities at their
addresses as they shall appear on the Security register notice that such moneys
remain and that, after a date specified therein, which shall not be less than 30
days from the date of such mailing, any unclaimed balance of such money then
remaining will be repaid to the Issuer upon Issuer Order.
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SECTION 9.5 Indemnity for U.S. Government Obligations. The
Issuer 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 Section 9.1 or the principal or interest received in respect of such
obligations.
ARTICLE TEN
MISCELLANEOUS PROVISIONS
SECTION 10.1 Partners, Incorporators, Stockholders, Officers
and Directors of Issue Exempt from Individual Liability. No recourse under or
upon any obliga tion, covenant or agreement contained in this Indenture, or in
any Security, or because of any indebtedness evidenced thereby, shall be had
against any incorporator, as such, or against any past, present or future
stockholder, officer or director, as such, of the Issuer or of any partner or
member of the Issuer or of any successor, either directly or through the Issuer
or any successor, under any rule of law, statute or constitutional provision or
by the enforcement of any assessment or by any legal or equitable proceeding or
otherwise, all such liability being expressly waived and released by the
acceptance of the Securities by the Holders thereof and as part of the
consideration for the issue of the Securities.
SECTION 10.2 Provisions of Indenture for the Sole Benefit of
Parties and Securityholders. Nothing in this Indenture or in the Securities,
expressed or implied, shall give or be construed to give to any Person, other
than the parties hereto and their successors and the Holders of the Securities,
any legal or equitable right, remedy or claim under this Indenture or under any
covenant or provision herein contained, all such covenants and provisions being
for the sole benefit of the parties hereto and their successors and the Holders
of the Securities.
SECTION 10.3 Successors and Assigns of Issuer Bound by
Indenture. All the covenants, stipulations,
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promises and agreements in this Indenture contained by or on behalf of the
Issuer shall bind its successors and assigns, whether so expressed or not.
SECTION 10.4 Notices and Demands on Issuer, Trustee and
Securityholders. Any notice or demand which by any provision of this Indenture
is required or permitted to be given or served by the Trustee or by the Holders
of Securities to or on the Issuer may be given or served by being deposited
postage prepaid, first-class mail (except as otherwise specifically provided
herein) addressed (until another address of the Issuer is filed by the Issuer
with the Trustee) to American Tower Corporation, 116 Huntington Avenue, Boston,
MA 02116, Attention: Chief Financial Officer and Secretary. Any notice,
direction, request or demand by the Issuer or any Securityholder to or upon the
Trustee shall be deemed to have been sufficiently given or made, for all
purposes, if given or made at the Corporate Trust Office, Attention: Corporate
Trust Trustee Administration Department.
Where this Indenture provides for notice to Holders, such
notice shall be sufficiently given (except as otherwise specifically provided
herein) if in writing, and mailed, first-class postage prepaid, to each Holder
entitled thereto, at his last address as it appears in the Security register. In
any case where notice to Holders is given by mail, neither the failure to mail
such notice, nor any defect in any notice so mailed, to any particular Holder
shall affect the sufficiency of such notice with respect to other Holders. Where
this Indenture provides for notice in any manner, such notice may be waived in
writing by the Person entitled to receive such notice, either before or after
the event, and such waiver shall be the equivalent of such notice. Waivers of
notice by Holders shall be filed with the Trustee, but such filing shall not be
a condition precedent to the validity of any action taken in reliance upon such
waiver.
In case, by reason of the suspension of or irregu larities in
regular mail service, it shall be impracticable to mail notice to the Issuer and
Securityholders when such
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notice is required to be given pursuant to any provision of this Indenture, then
any manner of giving such notice as shall be satisfactory to the Trustee shall
be deemed to be a sufficient giving of such notice.
SECTION 10.5 Officers' Certificates and Opinions of Counsel;
Statements to Be Contained Therein. Upon any application or demand by the Issuer
to the Trustee to take any action under any of the provisions of this Indenture,
the Issuer shall furnish to the Trustee an Officers' Certificate stating that
all conditions precedent provided for in this Indenture relating to the proposed
action have been complied with and an Opinion of Counsel stating that in the
opinion of such counsel all such conditions precedent have been complied with,
except that in the case of any such application or demand as to which the
furnishing of such documents is specifically required by any provision of this
Indenture relating to such particular application or demand, no additional
certificate or opinion need be furnished.
Each certificate or opinion provided for in this Indenture and
delivered to the Trustee 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 has read such covenant or condition, (b) a
brief statement as to the nature and scope of the examination or investigation
upon the statements or opinions contained in such certificate or opinion 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.
Any certificate, statement or opinion of an officer of the
Issuer may be based, insofar as it relates to legal matters, upon a certificate
or opinion of or represen tations by counsel, unless such officer knows that the
certificate or opinion or representations with respect to the matters upon which
his certificate, statement or opinion may be based as aforesaid are erroneous,
or in the exercise
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of reasonable care should know that the same are erroneous. Any certificate,
statement or opinion of counsel may be based, insofar as it relates to factual
matters, information with respect to which is in the possession of the Issuer,
upon the certificate, statement or opinion of or representa tions by an officer
or officers of the Issuer, unless such counsel knows that the certificate,
statement or opinion or representations with respect to the matters upon which
his certificate, statement or opinion may be based as aforesaid are erroneous,
or in the exercise of reasonable care should know that the same are erroneous.
Any certificate, statement or opinion of an officer of the
Issuer or of counsel may be based, insofar as it relates to accounting matters,
upon a certificate or opinion of or representations by an accountant or firm of
accountants in the employ of the Issuer, unless such officer or counsel, as the
case may be, knows that the certificate or opinion or representations with
respect to the accounting matters upon which his certificate, statement or
opinion may be based as aforesaid are erroneous, or in the exercise of
reasonable care should know that the same are erroneous.
Any certificate or opinion of any independent firm of public
accountants filed with the Trustee shall contain a statement that such firm is
independent.
SECTION 10.6 Payments Due on Saturdays, Sundays and Legal
Holidays. If the date of maturity of interest on or principal of the Securities
or the date fixed for redemp tion or repayment of any Security or the last date
on which a Holder of Securities has a right to convert his Securities shall not
be a Business Day, then (notwithstanding any other provision of this Indenture
or of the Securities) payment of interest or principal or conversion of the
Securities need not be made on such date, but may be made on the next succeeding
Business Day with the same force and effect as if made on the date of maturity
or the date fixed for redemption or repayment or on such last day for
conversion, and no interest shall accrue for the period after such date.
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SECTION 10.7 Conflict with TIA. Whether or not qualified under
the TIA, this Indenture shall be interpreted as though it were so qualified
including provisions required by the TIA or provisions deemed included except as
varied by this Indenture. If any provision hereof limits, qualifies or conflicts
with a provision of the TIA that is required under the TIA to be a part of and
govern this Indenture, the latter provision shall control. If any provision of
this Indenture modifies or excludes any provision of the TIA that may be so
modified or excluded, the latter provision shall be deemed to apply to this
Indenture as so modified or to be excluded, as the case may be.
SECTION 10.8 Communications by Holders with Other Holders.
Securityholders may communicate pursuant to Section 312(b) of the TIA with other
Holders with respect to their rights under this Indenture or the Securities. The
Issuer, the Trustee, the Registrar and any other person shall have the
protection of Section 312(c) of the TIA.
SECTION 10.9 Issuer to Furnish Trustee Names and Addresses of
Holders. The Issuer will furnish or cause to be furnished to the Trustee:
(a) semiannually, not later than February 15 and August 15 in
each year, a list, in such form as the Trustee may reasonably require,
of the names and addresses of the Securityholders as of a date not more
than 15 days prior to the delivery thereof, and
(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Issuer of any such request, a
list of similar form and content as of a date not more than 15 days
prior to the time such list is furnished;
excluding from any such list names and addresses received by the Trustee in the
capacity of Registrar.
SECTION 10.10 New York Law to Govern. This Indenture and each
Security shall be deemed to be a contract under the laws of the State of New
York, and for all
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purposes shall be construed in accordance with the laws of said State, without
regard to principles of conflicts of laws.
SECTION 10.11 Counterparts. This Indenture may be executed in
any number of counterparts, each of which shall be an original; but such
counterparts shall together constitute but one and the same instrument.
SECTION 10.12 Effect of Headings. The Article and Section
headings herein and the Table of Contents are for convenience only and shall not
affect the construction hereof.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 11.1 Right of Optional Redemption; Prices. The Issuer
at its option may, on and after October 22, 2002, redeem all, or from time to
time any part of, the Securities upon payment of the optional Redemption Prices
set forth in the form of Security attached as Exhibit A hereto, together with
accrued interest to the date fixed for redemption.
SECTION 11.2 Notice of Redemption; Partial Redemptions. Notice
of redemption to the Holders of Securities to be redeemed as a whole or in part
shall be given by mailing notice of such redemption by first-class mail, postage
prepaid, at least 20 days and not more than 60 days prior to the date fixed for
redemption to such Holders of Securities at their last addresses as they shall
appear upon the registry books. Any notice which is mailed in the manner herein
provided shall be conclusively presumed to have been duly given, whether or not
the Holder receives the notice. Failure to give notice by mail, or any defect in
the notice to the Holder of any Security designated for redemption as a whole or
in part, shall not affect the validity of the proceedings for the redemption of
any other Security.
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The notice of redemption to each such Holder shall specify the
principal amount of each Security held by such Holder to be redeemed, the date
fixed for redemption (the "Redemption Date"), the CUSIP numbers, the applicable
Redemption Price, the place or places of payment, that payment will be made upon
presentation and surrender of such Securities, that interest accrued to the date
fixed for redemption will be paid as specified in said notice and that on and
after said date interest thereon or on the portions thereof to be redeemed will
cease to accrue, and shall also specify the Conversion Price then in effect and
the date on which the right to convert such Securities or the portions thereof
to be redeemed will expire. In case any Security is to be redeemed in part only
the notice of redemption shall state the portion of the principal amount thereof
to be redeemed and shall state that on and after the date fixed for redemption,
upon surrender of such Security, a new Security or Securities in principal
amount equal to the unredeemed portion thereof will be issued.
The notice of redemption of Securities to be redeemed at the
option of the Issuer shall be given by the Issuer or, at the Issuer's request,
by the Trustee in the name and at the expense of the Issuer.
At least one Business Day prior to the Redemption Date
specified in the notice of redemption given as provided in this Section, the
Issuer will deposit with the Trustee or with one or more Paying Agents (or, if
the Issuer is acting as its own Paying Agent, set aside, segregate and hold in
trust as provided in Section 2.3) an amount of money suffi cient to redeem on
the Redemption Date all the Securities so called for redemption (other than
those theretofore surrendered for conversion pursuant to Article Twelve) at the
appropriate Redemption Price, together with accrued interest to and including
the date fixed for redemption. If any Security called for redemption is
converted pursuant hereto, any money deposited with the Trustee or any Paying
Agent or so segregated and held in trust for the redemption Order, or, if then
held by the Issuer, shall be discharged from such trust. If less than all the
outstanding Securi-
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ties are to be redeemed, the Issuer will deliver to the Trustee at least 10 days
prior to the date of making of the notice of redemption an Officers' Certificate
stating the aggregate principal amount of Securities to be redeemed.
If less than all the Securities are to be redeemed, the
Trustee shall select, by lot, pro rata or by such other manner as it shall deem
appropriate and fair, Securities to be redeemed in whole or in part. Securities
may be redeemed in part in multiples equal to the minimum authorized
denomination for Securities or any multiple thereof. The Trustee shall promptly
notify the Issuer in writing of the Securities selected for redemption and, in
the case of any Securities selected for partial redemption, the principal amount
thereof to be redeemed. For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of Securities
shall relate, in the case of any Security redeemed or to be redeemed only in
part, to the portion of the principal amount of such Security which has been or
is to be redeemed. If any Security selected for partial redemption is
surrendered for conversion after such selection, the converted portion of such
Security shall be deemed (so far as may be) to be the portion selected for
redemption. Upon any redemption of less than all the Securities, for purposes of
the selection for redemption, the Issuer and the Trustee may treat as
Outstanding Securities surrendered for conversion during the period of 15 days
next preceding the mailing of a notice of redemption, and need not treat as
Outstanding any Security authenticated and delivered during such period in
exchange for the unconverted portion of any Security converted in part during
such period.
SECTION 11.3 Payment of Securities Called for Redemption. If
notice of redemption has been given as above provided, the Securities or
portions of Securities specified in such notice shall become due and payable on
the date and at the place stated in such notice at the applicable Redemption
Price, together with interest accrued to and including the date fixed for
redemption, and on and after said date (unless the Issuer shall default in the
payment of
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such Securities at the Redemption Price, together with interest accrued to said
date) interest on the Securities or portions of Securities so called for
redemption shall cease to accrue and such Securities shall cease from and after
the close of business on the Business Day immediately prior to the date fixed
for redemption to be convertible pursuant to the provisions of Article Twelve
or, except as provided in Sections 2.4 and 9.4, be entitled to any benefit or
security under this Indenture, and the Holders thereof shall have no right in
respect of such Securities except the right to receive the applicable Redemption
Price thereof and unpaid interest to and including the date fixed for
redemption. On presentation and surrender of such Securities at a place of
payment specified in said notice, said Securities or the specified portions
thereof shall be paid and redeemed by the Issuer at the applicable Redemption
Price, together with interest accrued thereon to and including the date fixed
for redemption, provided that any payment of interest becoming due on or prior
to the date fixed for redemption shall be payable to the Holders of such
Securities registered as such on the relevant record date subject to the terms
and provisions of Section 2.11 hereof.
If any Security called for redemption shall not be so paid
upon surrender thereof for redemption, the principal shall, until paid or duly
provided for, bear interest from the date fixed for redemption at the rate of
interest specified in such Security and such Security shall remain convertible
pursuant to the provisions of Article Twelve until the principal of such
Security shall have been paid or duly provided for.
Upon presentation of any Security redeemed in part only, the
Issuer shall execute and the Trustee shall authenticate and deliver to or on the
order of the Holder thereof, at the expense of the Issuer, a new Security or
Securities, of authorized denominations, in principal amount equal to the
unredeemed portion of the Security so presented.
SECTION 11.4 Exclusion of Certain Securities from Eligibility
for Selection for Redemption. Securities shall
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be excluded from eligibility for selection for redemption if they are identified
by registration and certificate number in a written statement signed by an
Officer of the Issuer and delivered to the Trustee at least 40 days prior to the
last date on which notice of redemption may be given as being owned of record
and beneficially by, and not pledged or hypothecated by either (a) the Issuer or
(b) an entity specifically identified in such Officers' Certificate directly or
indirectly controlling or controlled by or under direct or indirect common
control with the Issuer.
SECTION 11.5 Conversion Arrangement on Call for Redemption. In
connection with any redemption of the Securities, the Issuer may arrange for the
purchase and conversion of any Securities by an agreement with one or more
investment bankers or other purchasers (the "Purchasers") to purchase such
Securities by paying to the Trustee in trust for the Holders, on or before 11:00
a.m., Eastern Standard Time, on the Redemption Date, an amount not less than the
applicable Redemption Price, together with interest accrued and unpaid to the
Redemption Date, of such Securities. Notwithstanding anything to the contrary
contained in this Article, the obligation of the Issuer to pay the Redemption
Price, together with interest accrued and unpaid to the Redemption Date, shall
be deemed to be satisfied and discharged to the extent such amount is so paid by
such Purchasers. If such an agreement is entered into (a copy of which shall be
filed with the Trustee prior to the close of business on the second Business Day
immediately prior to the Redemption Date), any Securities called for redemption
that are not duly surrendered for conversion by the Holders thereof may, at the
option of the Issuer, be deemed, to the fullest extent permitted by law, and
consistent with any agreement or agreements with such Purchasers, to be acquired
by such Purchasers from such Holders and (notwithstanding anything to the
contrary contained in this Article) surrendered by such Purchasers for
conversion, all as of immediately prior to the close of business on the
Redemption Date (and the right to convert any such Securities shall be extended
through such time), subject to payment of the above amount as aforesaid. At the
written direction of the Issuer, the Trustee shall hold and
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dispose of any such amount paid to it by the Purchasers to the Holders in the
same manner as it would monies deposited with it by the Issuer for the
redemption of Securities. Without the Trustee's prior written consent, no
arrangement between the Issuer and such Purchasers for the purchase and
conversion of any Securities shall increase or otherwise affect any of the
powers, duties, responsibilities or obligations of the Trustee as set forth in
this Indenture, and the Issuer agrees to indemnify the Trustee from, and hold it
harmless against, any loss, liability or expense arising out of or in connection
with any such arrangement for the purchase and conversion of any Securities
between the Issuer and such Purchasers, including the costs and expenses,
including reasonable legal fees, incurred by the Trustee in the defense of any
claim or liability arising out of or in connection with the exercise or
performance of any of its powers, duties, responsibilities or obligations under
this Indenture.
ARTICLE TWELVE
CONVERSION OF SECURITIES
SECTION 12.1 Conversion Privilege. A Holder of a Security may
convert it into Class A Common Stock of the Issuer at any time prior to maturity
at the conversion price then in effect, except that, with respect to any
Security called for redemption, such conversion right shall terminate at the
close of business on the Business Day immediately preceding the Redemption Date,
Change in Control Repurchase Date or Repurchase Date (unless the Issuer shall
default in making the redemption or repurchase payment then due, in which case
the conversion right shall terminate on the date such default is cured and, if
applicable, the provisions of Section 13.2(d) are satisfied). The number of
shares of Class A Common Stock issuable upon conversion of a Security is
determined as follows: divide the principal amount to be converted by the
Conversion Price in effect on the Date of Conversion; round the result to the
nearest 1/100th of a share.
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The initial Conversion Price is stated in the fourth paragraph
of the reverse of the Securities and is subject to adjustment as provided in
this Article.
A Holder may convert a portion of a Security equal to $1,000
principal amount or any integral multiple thereof. Provisions of this Indenture
that apply to conversion of all of a Security also apply to conversion of a
portion of it.
SECTION 12.2 Exercise of Conversion Privilege. In order to
exercise the conversion privilege, the Holder of any Security to be converted
shall surrender such Security to the Issuer at any time during usual business
hours at its office or agency maintained for the purpose as provided in this
Indenture, accompanied by a fully executed written notice, in substantially the
form set forth on the reverse of the Security, that the Holder elects to convert
such Security or a stated portion thereof constituting a multiple of the minimum
authorized denomination thereof, and, if such Security is surrendered for
conversion during the period between the close of business on any record date
for such Security and the opening of business on the related interest payment
date (unless such Security shall have been called for redemption on a Redemption
Date or Change in Control Repurchase Date within such period or on such interest
payment date), accompanied also by payment of an amount equal to the interest
payable on such interest payment date on the portion of the principal amount of
the Security being surrendered for conversion. A Holder of any Security on a
record date for such Security who converts such Security on the related interest
payment date will receive the interest payable on such Security, and such
converting Holder need not include a payment for any such interest upon
surrender of such Security for conversion. Such notice shall also state the name
or names (with address) in which the certificate or certificates for shares of
Class A Common Stock shall be issued. Securities surrendered for conversion
shall (if so required by the Issuer or the Trustee) be duly endorsed by, or be
accompanied by a written instrument or instruments of transfer in form
satisfactory to the Issuer and the Trustee duly executed by, the Holder or his
attorney duly authorized in writing. As promptly as
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practicable after the receipt of such notice and the surrender of such Security
as aforesaid, the Issuer shall, subject to the provisions of Section 12.7, issue
and deliver at such office or agency to such Holder, or on his written order, a
certificate or certificates for the number of full shares of Class A Common
Stock issuable on such conversion of Securities in accordance with the
provisions of this Article and cash, as provided in Section 12.3, in respect of
any fraction of a share of Class A Common Stock otherwise issuable upon such
conversion. Such conversion shall be deemed to have been effected immediately
prior to the close of business on the date (herein called the "Date of
Conversion") on which such notice shall have been received by the Issuer and
such Security shall have been surrendered as aforesaid, and the Person or
Persons in whose name or names any certificate or certificates for shares of
Class A Common Stock shall be issuable upon such conversion shall be deemed to
have become on the Date of Conversion the holder or holders of record of the
shares represented thereby; provided, however, that any such surrender on any
date when the stock transfer books of the Issuer shall be closed shall
constitute the person or persons in whose name or names the certificate or
certificates for such shares are to be issued as the recordholder or holders
thereof for all purposes at the opening of business on the next succeeding day
on which such stock transfer books are open but such conversion shall
nevertheless be at the Conversion Price in effect at the close of business on
the date when such Security shall have been so surrendered with the conversion
notice. In the case of conversion of a portion, but less than all, of a
Security, the Issuer shall execute, and the Trustee shall authenticate and
deliver to the Holder thereof, at the expense of the Issuer, a Security or
Securities in the aggregate principal amount of the unconverted portion of the
Security surrendered. Except as otherwise expressly provided in this Indenture,
no payment or adjustment shall be made for interest accrued on any Security (or
portion thereof) converted or for dividends or distributions on any Class A
Common Stock issued upon conversion of any Security; provided, however, that in
the case of any Securities which are converted after the close of business on a
relevant record date and on or prior to the next succeeding interest
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payment date, installments of interest which are due and payable on the next
succeeding interest payment date shall be payable on such interest payment date
notwithstanding such conversion (unless such Security shall have been called for
redemption on a Redemption Date or Change in Control Repurchase Date after the
close of business on such record date and prior to the opening of business on
such interest payment date) and such interest (whether or not punctually paid or
duly provided for) shall be paid to the Holder of such Securities registered as
such at the close of business on the relevant record date according to their
terms. The Issuer's delivery of the fixed number of shares of Class A Common
Stock into which the Securities are convertible will be deemed to satisfy the
Issuer's obligation to pay the principal amount of the Securities and all
accrued interest that has not previously been (or is not simultaneously being)
paid. The Class A Common Stock is treated as issued first in payment of accrued
interest and then in payment of principal.
SECTION 12.3 Fractional Shares. Except as pro vided below, the
Issuer will not issue fractional shares of Class A Common Stock upon conversion
of Securities. In lieu thereof, in the sole discretion of the Board of
Directors, either (a) such fractional interest will be rounded up to the nearest
full share, or (b) an appropriate amount will be paid in cash by the Issuer,
unless payment in cash is prohibited by the terms of the Issuer's indebtedness,
in which case fractional shares may be issued. If the Issuer shall deliver cash,
such cash shall be in the amount of the fair market value (as determined by the
Board of Directors) of such fractional interest. If more than one Security shall
be surrendered for conversion at one time by the same Holder, the number of full
shares issuable upon conversion thereof shall be computed on the basis of the
aggregate number of Securities, or the specified portions thereof to be
converted, so surrendered.
SECTION 12.4 Adjustment of Conversion Price. The Conversion
Price shall be subject to adjustment from time to time as follows:
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(a) In case the Issuer shall (1) pay a dividend or make a
distribution on Class A Common Stock in shares of Class A Common Stock,
(2) subdivide its outstanding shares of Class A Common Stock into a
greater number of shares or (3) combine its outstanding shares of Class
A Common Stock into a smaller number of shares, the Conversion Price in
effect immediately prior to such action shall be adjusted as provided
below so that the Holder of any Security thereafter surrendered for
conversion shall be entitled to receive the number of shares of Class A
Common Stock which he would have been entitled to receive immediately
following such action had such Security been converted immediately
prior thereto. An adjustment made pursuant to this subsection (a) shall
become effective immedi ately, except as provided in subsection (e)
below, after the record date in the case of a dividend or distribution
and shall become effective immediately after the effective date in the
case of a subdivision or combination.
(b) In case the Issuer shall issue rights, warrants or options
to all holders of Class A Common Stock entitling them for a period
expiring within 45 days after the record date therefor to subscribe for
or purchase shares of Class A Common Stock at a price per share less
than the current market price per share (as determined pursuant to
subsection (d) below) of the Class A Common Stock on the record date
mentioned below, the Conversion Price shall be adjusted to a price,
computed to the nearest cent, so that the same shall equal the price
determined by multiplying:
(1) the Conversion Price in effect immediately prior
to the date of issuance of such rights, warrants or option by
a fraction, of which
(2) the numerator shall be (A) the number of shares
of Class A Common Stock outstanding on the date of issuance of
such rights, warrants or options immediately prior to such
issuance, plus (B) the number of shares which the aggregate
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offering price of the total number of shares so offered for
subscription or purchase would purchase at such current market
price (determined by multiplying such total number of shares
by the exercise price of such rights, warrants or options and
dividing the product so obtained by such current market
price), and of which
(3) the denominator shall be (A) the number of shares
of Class A Common Stock outstanding on the date of issuance of
such rights, warrants or options, immediately prior to such
issuance, plus (B) the number of additional shares of Class A
Common Stock which are so offered for subscription or
purchase.
Such adjustment shall become effective immedi ately, except as
provided in subsection (e) below, after the record date for the
determination of Holders entitled to receive such rights, warrants or
options.
(c) In case the Issuer shall distribute to all holders of
Class A Common Stock evidences of indebtedness, equity securities
(including equity interests in the Issuer's Subsidiaries) other than
Class A Common Stock or other assets (other than cash dividends), or
shall distribute to all holders of Class A Common Stock rights,
warrants or options to subscribe to securities (other than those
referred to in subsection (b) above and dividends and distributions in
connection with the liquidation, dissolution or winding up of the
Issuer), then in each such case the Conversion Price shall be adjusted
so that the same shall equal the price determined by multiplying the
Conversion Price in effect immediately prior to the date of such
distribution by a fraction of which the numerator shall be the current
market price per share (determined as provided in subsection (d) below)
of the Class A Common Stock on the record date mentioned below less the
then fair market value (as determined by the Board of Directors, whose
determination shall be conclusive evidence of such fair market value,
and
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described in a Board Resolution filed with the Trustee) of the
portion of the assets, evidences of indebtedness and equity securities
so distributed or of such subscription rights, warrants or options
applicable to one share of Class A Common Stock, and of which the
denominator shall be such current market price per share of the Class A
Common Stock. For the purposes of this subsection (c), in the event of
a distribution of shares of capital stock or other securities of any
Subsidiary as a dividend on shares of Class A Common Stock, the then
fair market value of the shares of other securities so distributed
shall be deemed to be the market value (determined as provided above)
of such shares or other securities. Such adjustment shall become
effective immediately, except as provided in subsection (e) below,
after the record date for the determination of stockholders entitled to
receive such distribution.
(d) For the purpose of any computation under subsections (b)
and (c) above, the current market price per share of Class A Common
Stock on any date shall be deemed to be the average of the Last Sale
Prices of a share of Class A Common Stock for the five consecutive
Trading Days commencing not more than 20 Trading Days before, and
ending not later than, the earlier of the date in question and the date
before the "ex" date with respect to the issuance or distribution
requiring such computation. For purposes of this paragraph, the term
"'ex' date", when used with respect to any issuance or distribution,
means the first date on which the Class A Common Stock trades regular
way on the principal national securities exchange on which the Class A
Common Stock is listed or admitted to trading (or if not so listed or
admitted on NASDAQ or a similar organization if NASDAQ is no longer
reporting trading information) without the right to receive such
issuance or distribution.
(e) In any case in which this Section shall require that an
adjustment be made immediately follow ing a record date, the Issuer may
elect to defer the
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effectiveness of such adjustment (but in no event until a date later
than the effective time of the event giving rise to such adjustment),
in which case the Issuer shall, with respect to any Security converted
after such record date and before such adjustment shall have become
effective (i) defer making any cash payment pursuant to Section 12.3 or
issuing to the Holder of such Security the number of shares of Class A
Common Stock and other capital stock of the Issuer issuable upon such
conversion in excess of the number of shares of Class A Common Stock
and other capital stock of the Issuer issuable thereupon only on the
basis of the Conversion Price prior to adjustment, and (ii) not later
than five Business Days after such adjustment shall have become
effective, pay to such Holder the appropriate cash payment pursuant to
Section 12.3 and issue to such Holder the additional shares of Class A
Common Stock and other capital stock of the Issuer issuable on such
conversion.
(f) No adjustment in the Conversion Price shall be required if
Securityholders are to participate in the transaction on a basis and
with notice that the Board of Directors determines to be fair and
appropri ate in light of the basis and notice on which holders of Class
A Common Stock participate in the transaction. In addition, no
adjustment in the Conversion Price shall be required unless such
adjustment would require an increase or decrease of at least 1% in the
Conversion Price; provided that any adjustments which by reason of this
subsection (f) are not required to be made shall be carried forward and
taken into account in any subsequent adjustment. All calculations under
this Article shall be made to the nearest cent or to the nearest
one-hundredth of a share, as the case may be.
(g) Whenever the Conversion Price is adjusted as herein
provided, the Issuer shall promptly (i) file with the Trustee and each
conversion agent an Officers' Certificate setting forth the Conversion
Price after such adjustment and setting forth in reasonable detail the
facts requiring such adjustment and the
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calculations on which the adjustment is based, which certificate shall
be conclusive evidence of the correctness of such adjustment and which
shall be made available by the Trustee to the Holders of Securities for
inspection thereof, (ii) mail or cause to be mailed a notice of such
adjustment, setting forth the adjusted Conversion Price and the date on
which such adjustment became or becomes effective, to each Holder of
Securities at his address as the same appears on the registry books of
the Issuer.
To the extent permitted by law, the Issuer from time to time
may reduce the Conversion Price by any amount for any period of at least 20
days, if the Board of Directors has made a determination that such reduction
would be in the best interests of the Issuer, which determination shall be
conclusive. In such case, the Issuer shall give at least 15 days' notice of the
reduction. In addition, at its option, the Issuer may make such reduction in the
Conversion Price as the Board of Directors deems advisable to avoid or diminish
any income tax to holders of Class A Common Stock resulting from any dividend or
distribution of stock (or rights to acquire stock) or from any event treated as
such for income tax purposes.
SECTION 12.5 Continuation of Conversion Privilege in Case of
Reclassification, Reorganization, Change, Merger, Consolidation or Sale of
Assets. If any transaction shall occur, including without limitation (i) any
recapitalization or reclassification of shares of Class A Common Stock (other
than a change in par value, or from par value to no par value, or from no par
value to par value, or as a result of a subdivision or combination of the Class
A Common Stock), (ii) any consolidation or merger of the Issuer with or into
another person or any merger of another person into the Issuer (other than a
consolidation or merger that does not result in a reclassification, conversion,
exchange or cancellation of Class A Common Stock), (iii) any sale or transfer of
all or substantially all of the assets of the Issuer, or (iv) any compulsory
share exchange, pursuant to any of which holders of Class A Common Stock shall
be entitled to receive other securities, cash or other property, then
appropriate provision shall be made so that the Holder of each Security then
Outstanding shall have the right thereafter to convert such Security only into
the kind and amount of the securities, cash or other
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property that would have been receivable upon such recapitalization,
reclassification, consolidation, merger, sale, transfer or share exchange by a
holder of the number of shares of Class A Common Stock issuable upon conversion
of such Security immediately prior to such recapitalization, reclassification,
consolidation, merger, sale, transfer or share exchange, after giving effect to
any adjustment in the conversion price in accordance with this Indenture. The
company formed by such consolidation or resulting from such merger or that
acquires such assets or that acquires the Issuer's shares, as the case may be,
shall make provisions in its certificate of incorporation or other constituent
document to establish such right. Such certificate of incorporation or other
constituent document shall provide for adjustments that, for events subsequent
to the effective date of such certificate of incorporation or other constituent
documents, shall be as nearly equivalent as may be practicable to the relevant
adjustments provided for in Section 12.4 and in this Section.
SECTION 12.6 Notice of Certain Events. In case:
(a) the issuer shall declare a dividend (or any other
distribution) payable to the holders of Class A Common Stock (other
than cash dividends and dividends payable in Class A Common Stock); or
(b) the Issuer shall authorize the granting to the holders of
Class A Common Stock of rights, warrants or options to subscribe for or
purchase any shares of stock of any class or of any other rights,
warrants or options; or
(c) the Issuer shall authorize any reclassifica tion or change
of the Class A Common Stock (other than a subdivision or combination of
its outstanding shares of Class A Common Stock or a change in par
value, or from par value to no par value, or from no par value to
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par value), or any consolidation or merger to which the Issuer is a
party and for which approval of any stock holders of the Issuer is
required, or the sale or conveyance of all or substantially all the
property or business of the Issuer; or
(d) there shall be proposed any voluntary or involuntary
dissolution, liquidation or winding-up of the Issuer;
then, the Issuer shall cause to be filed with the Trustee, and, if other than
the Corporate Trust Office of the Trustee, at the office or agency maintained
for the purpose of conversion of the Securities as provided in Section 2.3, and
shall cause to be mailed to each Holder of Securities, at his address as it
shall appear on the registry books of the Issuer, as promptly as possible but in
any event at least 20 days before the date hereinafter specified (or the earlier
of the dates hereinafter specified, in the event that more than one date is
specified), a notice stating the date on which (1) a record is expected to be
taken for the purpose of such dividend, distribution, rights, warrants or
options, or if a record is not to be taken, the date as of which the holders of
Class A Common Stock of record to be entitled to such dividend, distribution,
rights or warrants are to be determined, or (2) such reclassification, change,
consolidation, merger, sale, transfer, conveyance, dissolution, liquidation or
winding-up is expected to become effective and the date, if any is to be fixed,
as of which it is expected that holders of Class A Common Stock of record shall
be entitled to exchange their shares of Class A Common Stock for securities or
other property deliverable upon such reclassification, change, consolidation,
merger, sale, transfer, conveyance, dissolution, liquidation or winding-up.
SECTION 12.7 Taxes on Conversion. The issuance and delivery of
certificates for shares of Class A Common Stock on conversion of Securities
shall be made without charge to the converting Holder of Securities for such
certificates or for any documentary, stamp or similar issue or transfer taxes
payable to the United States of America or
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any political subdivision or taxing authority thereof in respect of the issuance
or delivery of such certificates; provided, however, that the Issuer shall not
be required to pay any tax which may be payable in respect of any transfer
involved in the issuance of certificates for shares of Class A Common Stock, and
no such issue or delivery shall be made unless and until the Person requesting
such issue or delivery has paid to the Issuer the amount of any such tax or has
established, to the satisfaction of the Issuer, that such tax has been paid.
SECTION 12.8 Issuer to Provide Class A Common Stock. The
Issuer covenants that it will reserve and keep available, free from preemptive
rights, out of its authorized but unissued shares, solely for the purpose of
issue upon conversion of Securities as herein provided, sufficient shares of
Class A Common Stock to provide for the conversion of the Securities from time
to time as such Securities are presented for conversion.
If any shares of Class A Common Stock to be reserved for the
purpose of conversion of Securities hereunder require registration with or
approval of any governmental authority under any Federal or State law before
such shares may be validly issued or delivered upon conversion, then the Issuer
covenants that it will in good faith and as expeditiously as possible endeavor
to secure such registration or approval, as the case may be; provided, however,
that nothing in this Section shall be deemed to affect in any way the
obligations of the Issuer to convert Securities into Class A Common Stock as
provided in this Article.
Before taking any action which would cause an adjustment
reducing the Conversion Price below the then par value, if any, of the Class A
Common Stock, the Issuer will take all corporate action which may, in the
Opinion of Counsel, be necessary in order that the Issuer may validly and
legally issue fully paid and non-assessable shares of Class A Common Stock at
such adjusted Conversion Price.
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The Issuer covenants that all shares of Class A Common Stock
which may be issued upon conversion of Securities will upon issue be duly
authorized, validly issued and fully paid and non-assessable by the Issuer and
free of preemptive rights and of any lien or adverse claim and that, if the
Class A Common Stock is then listed on any national securities exchange or
quoted on NASDAQ, the shares of Class A Common Stock which may be issued upon
conversion of Securities will be similarly listed or quoted at the time of such
issuance.
The Issuer covenants that, upon conversion of Securities as
herein provided, there will be credited to Class A Common Stock par capital from
the consideration for which the shares of Class A Common Stock issuable upon
such conversion are issued an amount per share of Class A Common Stock so issued
as determined by the Board of Directors, which amount shall not be less than the
amount required by law and by the Issuer's certificate of incorporation, as
amended, as in effect on the date of such conversion. For the purposes of this
covenant the net proceeds received by the Issuer from the issuance and sale of
the Securities converted, less any cash conversion, shall be deemed to be the
amount of consideration for which the shares of Class A Common Stock issuable
upon such conversion are issued.
SECTION 12.9 Disclaimer of Responsibility for Certain Matters.
Neither the Trustee nor any Conversion Agent or agent of the Trustee shall at
any time be under any duty or responsibility to any Holder of Securities to
determine whether any facts exist which may require any adjustment of the
Conversion Price, or with respect to the Officers' Certificate referred to in
Section 12.4(g), or with respect to the nature or extent of any such adjustment
when made, or with respect to the method employed, or herein or in any
supplemental indenture provided to be employed, in making the same. Neither the
Trustee nor any Conversion Agent nor any agent of the Trustee shall be
accountable with respect to the validity, registration, listing, or value (or
the kind or amount) of any shares of Class A Common Stock, or of any securities
or cash or other property, which may at any time be issued or delivered upon the
conversion of any
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Security; and neither the Trustee nor any agent of the Trustee nor any
Conversion Agent makes any representation with respect thereto. Neither the
Trustee nor any Conversion Agent nor any agent of the Trustee shall be
responsible for any failure of the Issuer to make any cash payment or to issue,
register the transfer of or deliver any shares of Class A Common Stock or stock
certificates or other securities or property upon the surrender of any Security
for the purpose of conversion or, subject to Sections 5.1 and 5.2, to comply
with any of the covenants of the Issuer contained in this Article.
SECTION 12.10 Return of Funds Deposited for Redemption of
Converted Securities. Any funds which at any time shall have been deposited by
the Issuer or on its behalf with the Trustee or any other Paying Agent for the
purpose of paying the principal of and interest on any of the Securities and
which shall not be required for such purposes because of the conversion of such
Securities, as provided in this Article, shall after such conversion, upon the
written request of the Issuer, be repaid to the Issuer by the Trustee or such
other Paying Agent.
ARTICLE THIRTEEN
RIGHT TO REQUIRE REDEMPTION UPON CHANGE IN CONTROL
SECTION 13.1 Right to Require Redemption. If at any time there
shall occur any Change in Control (as defined below) of the Issuer, then each
Holder shall have the right, at such Holder's option, to require the Issuer to
redeem, and upon the exercise of such right the Issuer shall redeem, all or any
part of such Holder's Securities that is $1,000 in principal amount or any
integral multiple thereof, on the date (the "Change in Control Repurchase Date")
that is 45 days after the date of the Issuer Notice (as defined below) at a
price in cash equal to the principal amount thereof, and accrued and unpaid
interest to the Repurchase Date (the "Change in Control Repurchase Price").
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SECTION 13.2 Notices; Method of Exercising Redemption Right,
etc. (a) Unless the Issuer shall have theretofore called for redemption all the
Securities then Outstanding pursuant to Article Eleven, on or before the 30th
day after the occurrence of a Change in Control, the Issuer or, at the request
of the Issuer, the Trustee, shall forward to all holders of record of the
Securities a notice (the "Issuer Notice") of the occurrence of the Change in
Control and of the redemption right set forth herein arising as a result thereof
in the manner provided in Section 10.4 hereof. The Issuer shall also deliver a
copy of the Issuer Notice to the Trustee prior to or promptly after the mailing
of such Issuer Notice.
Each Issuer Notice shall state:
(1) the Change in Control Repurchase Date;
(2) the date by which the Securities with respect to which
such right is being exercised and the irrevocable written notice
referred to in Section 13.2(b) must be delivered to the Trustee;
(3) the Change in Control Repurchase Price, including and
accrued interest, if any;
(4) a description of the procedure which a Holder must follow
to exercise a redemption right including a form of the irrevocable
written notice referred to in Section 13.2(b); and
(5) the Conversion Price then in effect, the date on which the
right to convert the principal amount of the Securities to be redeemed
will terminate and the place or places where such Securities may be
surrendered for conversion.
No failure of the Issuer to give the Issuer Notice or any
defect therein shall limit any Holder's right to exercise a redemption right or
affect the validity of the proceedings for the redemption of Securities.
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(b) To exercise a redemption right, a Holder shall deliver to
the Trustee on or before the 30th day after the date of the Issuer Notice (i)
irrevocable written notice of the Holder's exercise of such right, which notice
shall set forth the name of the Holder, the amount of the Securities to be
redeemed (which shall be in any authorized denomination), and a statement that
an election to exercise the redemption right is being made thereby, and (ii) the
Securities with respect to which the redemption right is being exercised, duly
endorsed for transfer to the Issuer. Securities held by a securities depositary
may be delivered in such other manner as may be agreed to by such securities
depositary and the Issuer. Such written notice shall be irrevocable. Subject to
the provisions of subsection (d) below, Securities surrendered for redemption
together with such irrevocable written notice shall cease to be convertible from
the date of delivery of such notice. If the Change in Control Repurchase Date
falls after the record date and before the following interest payment date, any
Securities to be redeemed must be accompanied by payment of an amount equal to
the interest thereon which the registered Holder thereof is to receive on such
interest payment date, and, notwithstanding such redemption, such interest
payment will be made by the Issuer to the registered Holder thereof on the
applicable record date.
(c) In the event a redemption right shall be exercised in
accordance with the terms hereof, the Issuer shall pay or cause to be paid the
Change in Control Repurchase Price in cash, to the Holder on the Change in
Control Repurchase Date. The principal of and accrued interest on Securities
payable at the Change in Control Repurchase Price on the Change in Control
Repurchase Date shall be considered to be principal due on such date for
purposes of this Indenture, including Article Four.
(d) If any Security surrendered for redemption shall not be so
redeemed on the Change in Control Repurchase Date, such Security shall be
convertible at any time from the Change in Control Repurchase Date until
redeemed and, until redeemed, continue to bear interest to the extent permitted
by applicable law from the Change in Control
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Repurchase Date at the same rate borne by such Security. The Issuer shall pay to
the Holder of such Security the additional amount arising as a result of the
provisions of this Section 13.2(d) at the same time that it pays the Change in
Control Repurchase Price, and if applicable such Security shall remain
convertible into Class A Common Stock until the Change in Control Repurchase
Price plus any additional amounts owing on such Security shall have been paid or
duly provided for.
(e) Any Security which is to be redeemed only in part shall be
surrendered at any office or agency of the Issuer designated for that purpose
pursuant to Section 2.3 (with, if the Issuer or the Trustee so requires, due
endorsement by, or a written instrument of transfer in form satisfactory to the
Issuer and the Trustee duly executed by, the Holder thereof or his attorney duly
authorized in writing), and the Issuer shall execute, and the Trustee shall
authenticate and deliver to the Holder of such Security without service charge,
a new Security or Securities, of any authorized denomination as requested by
such Holder, in aggregate principal amount equal to and in exchange for the
unredeemed portion of the Security so surrendered.
SECTION 13.3 Definition of Change in Control. A "Change in
Control" is deemed to have occurred when (i) any person or group other than one
or more of the Principal Stockholders (as hereinafter defined) or any person
employed by the Issuer in a management capacity as of September 28, 1999 (or any
group of which any of them is a member, collectively, a "Permitted Owner"),
acquires beneficial ownership of, directly or indirectly, shares of capital
stock of the Issuer sufficient to entitle such person to exercise more than 50%
of the total voting power of all classes of capital stock entitled to vote in
elections of directors (whether by means of an exchange offer, liquidation,
tender offer, consolidation, merger, combination, reclassification,
recapitalization or otherwise), or (ii) the Issuer sells, leases, exchanges or
transfers (in one transaction or a series of related transactions) all or
substantially all of its assets to any
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person or group (in each instance, as the term "person" or "group" is used in
Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934, as
amended), other than one or more Permitted Owners, provided that any transaction
described in (i) or (ii) (whether or not in any such case to or involving a
Permitted Owner) that results in the Class A Common Stock (or a successor common
equity security into which the Securities become convertible pursuant to Section
12.4) no longer being listed on a national securities exchange or traded on
NASDAQ shall also be considered a Change in Control. "Principal Stockholders"
means Steven B. Dodge, Thomas H. Stoner, Hicks, Muse, Tate & Furst Incorporated,
Cox Telecom Towers, Inc. and Clear Channel Communications, Inc. and their
Affiliates.
SECTION 13.4 Limitation on Right to Require Redemption.
Notwithstanding anything herein to the contrary, no Holder shall have any right
to require redemption pursuant to this Article if either (i) the Last Sale Price
(or if on any such Trading Day the Class A Common Stock is not quoted by any
organization referred to in the definition of Last Sale Price, the fair value of
the Class A Common Stock on such day, as conclusively determined by the Board of
Directors) on any five Trading Days during the 10 Trading Day period immediately
preceding the date of the Change in Control shall equal or exceed 105% of the
Conversion Price in effect on such Trading Days or (ii) with respect to any
transaction described in clause (i) of Section 13.3, or any transaction
described in clause (ii) of Section 13.3 (so long as such transaction is
accompanied by or immediately followed by the complete liquidation and
dissolution of the Issuer), all the consideration to be paid for the Class A
Common Stock or the assets, as the case may be, in the transaction or
transactions constituting the Change in Control (A) has an aggregate fair market
value of at least 105% of the Conversion Price with respect to such Holder's
Securities in effect immediately prior to the closing of such transaction and
(B) consists of cash, securities traded on a national securities exchange or
quoted on NASDAQ or a combination of cash and securities.
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ARTICLE FOURTEEN
REPURCHASE OF SECURITIES AT OPTION OF THE HOLDER
SECTION 14.1 General. Securities shall be purchased by the
Issuer as of October 22, 2006 (the "Repurchase Date"), at the repurchase price
(the "Repurchase Price") set forth in the form of Security attached as Exhibit A
hereto, at the option of the Holder thereof, upon:
(1) delivery to the Paying Agent, by the Holder of a written
notice of purchase (the "Repurchase Notice") at any time from the
opening of business on the date that is 20 Business Days prior to the
Repurchase Date until the close of business on the Repurchase Date
stating:
(A) the certificate number of the Security which the
Holder will deliver to be purchased,
(B) the portion of the principal amount of the
Security which the Holder will deliver to be purchased, which
portion must be $1,000 or an integral multiple thereof,
(C) that such Security shall be purchased as of the
Repurchase Date pursuant to the terms and conditions specified
in the Securities and in this Indenture, and
(D) in the event the Issuer elects, pursuant to
Section 14.2, to pay the Repurchase Price, in whole or in
part, in shares of Class A Common Stock but such portion of
the Repurchase Price shall ultimately be payable to such
Holder entirely in cash because any of the conditions to
payment of the Repurchase Price in Class A Common Stock is not
satisfied prior to the close of business on the Repurchase
Date, as set forth in Section 14.4, whether such Holder elects
(i) to withdraw such Repurchase Notice as to some or all of
the Securities to which such Repurchase Notice
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relates (stating the principal amount and certificate numbers
of the Securities as to which such withdrawal shall relate),
or (ii) to receive cash in respect of the entire Repurchase
Price for all Securities (or portions thereof) to which such
Repurchase Notice relates; and
(2) delivery of such Security to the Paying Agent prior to, on
or after the Repurchase Date (together with all necessary endorsements)
at the offices of the Paying Agent, such delivery being a condition to
receipt by the Holder of the Repurchase Price therefor; provided,
however, that the Repurchase Price shall be so paid pursuant to this
Article only if the Security so delivered to the Trustee shall conform
in all respects to the description thereof in the related Repurchase
Notice.
If a Holder, in such Holder's Repurchase Notice and in any
written notice of withdrawal delivered by such Holder pursuant to the terms of
Section 14.9, fails to indicate such Holder's choice with respect to the
election set forth in clause (D) of Section 14.1(1), such Holder shall be deemed
to have elected to receive cash in respect of the Repurchase Price for all
Securities subject to such Repurchase Notice in the circumstances set forth in
such clause (D).
The Issuer shall purchase from the Holder thereof, pursuant to
this Article, a portion of a Security if the principal amount of such portion is
$1,000 or an integral multiple of $1,000. Provisions of this Indenture that
apply to the purchase of all of a Security also apply to the purchase of such
portion of such Security.
Any purchase by the Issuer contemplated pursuant to the
provisions of this Article shall be consummated by the delivery of the
consideration to be received by the Holder promptly following the later of the
Repurchase Date and the time of delivery of the Security.
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Notwithstanding anything herein to the contrary, any Holder
delivering to the Paying Agent a Repurchase Notice contemplated by this Section
14.1 shall have the right to withdraw such Repurchase Notice at any time prior
to the close of business on the Repurchase Date by delivery of a written notice
of withdrawal to the Paying Agent in accordance with Section 14.9.
The Paying Agent shall promptly notify the Issuer of the
receipt by it of any Repurchase Notice or written notice of withdrawal thereof.
SECTION 14.2 Issuer's Right to Elect Manner of Payment of
Repurchase Price. The Securities to be purchased pursuant to Section 14.1 may be
paid for, at the election of the Issuer, in cash or Class A Common Stock, or in
any combination of cash and Class A Common Stock, subject to the conditions set
forth in Sections 14.3 and 14.4. The Issuer shall designate, in the Issuer
Repurchase Notice delivered pursuant to Section 14.5, whether the Issuer will
purchase the Securities for cash or Class A Common Stock, or, if a
combination thereof, the percentages of the Repurchase Price of Securities in
respect of which it will pay in cash or Class A Common Stock; provided that the
Issuer will pay cash for fractional interests in Class A Common Stock unless
payment in cash is prohibited by the terms of the Issuer's indebtedness, in
which case fractional shares may be issued. For purposes of determining the
existence of potential fractional interests, all Securities subject to purchase
by the Issuer held by a Holder shall be considered together (no matter how many
separate certificates are to be presented). Each Holder whose Securities are
purchased pursuant to this Article shall receive the same percentage of cash or
Class A Common Stock in payment of the Repurchase Price for such Securities,
except (i) as provided in Section 14.4 with regard to the payment of cash in
lieu of fractional shares of Class A Common Stock and (ii) in the event that the
Issuer is unable to purchase the Securities of a Holder or Holders for Class A
Common Stock because any necessary qualifications or registrations of the Class
A Common Stock under applicable state securities laws cannot be obtained, the
Issuer may purchase the Securities of such Holder or
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Holders for cash. The Issuer may not change its election with respect to the
consideration (or components or percentages of components thereof) to be paid
once the Issuer has given its Issuer Repurchase Notice to Securityholders except
pursuant to this Section 14.2 or pursuant to Section 14.4 in the event of a
failure to satisfy, prior to the close of business on the Repurchase Date, any
condition to the payment of the Repurchase Price, in whole or in part, in Class
A Common Stock.
At least three Business Days before the Issuer Repurchase
Notice Date, the Issuer shall deliver an Officers' Certificate to the Trustee
specifying:
(1) the manner of payment selected by the Issuer,
(2) the information required by Section 14.5,
(3) if the Issuer elects to pay the Repurchase Price, or a
specified percentage thereof, in Class A Common Stock, that the
conditions to such manner of payment set forth in Section 14.4 have
been or will be complied with, and
(4) whether the Issuer desires the Trustee to give the Issuer
Repurchase Notice required by Section 14.5.
SECTION 14.3 Repurchase with Cash. On the Repurchase Date, at
the option of the Issuer, the Repurchase Price of Securities in respect of which
a Repurchase Notice pursuant to Section 14.1 has been given, or a specified
percentage thereof, may be paid by the Issuer with cash equal to the aggregate
Repurchase Price of such Securities. If the Issuer elects to purchase Securities
with cash, the Issuer Repurchase Notice, as provided in Section 14.5, shall be
sent to Holders (and the Depositary shall distribute to beneficial owners as
required by applicable law) not less than 20 Business Days prior to the
Repurchase Date (the "Issuer Repurchase Notice Date").
SECTION 14.4 Payment by Issuance of Class A Common Stock. On
the Repurchase Date, at the option of the
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Issuer, the Repurchase Price of Securities in respect of which a Repurchase
Notice pursuant to Section 14.1 has been given, or a specified percentage
thereof, may be paid by the Issuer by the issuance of a number of shares of
Class A Common Stock equal to the quotient obtained by dividing (i) the amount
of cash to which the Securityholders would have been entitled had the Issuer
elected to pay all or such specified percentage, as the case may be, of the
Repurchase Price of such Securities in cash by (ii) the Market Price of a share
of Class A Common Stock, subject to the next succeeding paragraph.
The Issuer will not issue a fractional share of Class A Common
Stock in payment of the Repurchase Price. Instead the Issuer will pay cash for
the current market value of the fractional share. The current market value of a
fraction of a share shall be determined by multiplying the Market Price by such
fraction and rounding the product to the nearest whole cent. It is understood
that if a Holder elects to have more than one Security purchased, the number of
shares of Class A Common Stock shall be based on the aggregate amount of
Securities to be purchased.
If the Issuer elects to purchase the Securities by the
issuance of shares of Class A Common Stock, the Issuer Repurchase Notice, as
provided in Section 14.5, shall be sent to the Holders (and the Depositary shall
distribute to beneficial owners as required by applicable law) not later than
the Issuer Repurchase Notice Date.
The Issuer's right to exercise its election to purchase the
Securities pursuant to this Article through the issuance of shares of Class A
Common Stock shall be conditioned upon:
(1) the Issuer's not having given its Issuer Repurchase Notice
of an election to pay entirely in cash and its giving a timely Issuer
Repurchase Notice of election to purchase all or a specified percentage
of the Securities with Class A Common Stock as provided herein;
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(2) the registration of the shares of Class A Common Stock to
be issued in respect of the payment of the Repurchase Price under the
Securities Act or the Exchange Act, in each case, if required;
(3) any necessary qualification or registration under
applicable state securities laws or the availability of an exemption
from such qualification and registration; and
(4) the receipt by the Trustee of an Officers' Certificate and
an Opinion of Counsel each stating that (A) the terms of the issuance
of the Class A Common Stock are in conformity with this Indenture and
(B) the shares of Class A Common Stock to be issued by the Issuer in
payment of the Repurchase Price in respect of Securities have been duly
authorized and, when issued and delivered pursuant to the terms of this
Indenture in payment of the Repurchase Price in respect of the
Securities, will be validly issued, fully paid and non-assessable and,
to the best of such counsel's knowledge, free from preemptive rights,
and, in the case of such Officers' Certificate, stating that conditions
(1), (2) and (3) above and the information publication requirement set
forth in the second sentence of the next succeeding paragraph have been
satisfied and, in the case of such Opinion of Counsel, stating that
conditions (2) and (3) above have been satisfied.
Such Officers' Certificate shall also set forth the number of
shares of Class A Common Stock to be issued for each $1,000 principal
amount of Securities and the Last Sale Price of a share of Class A
Common Stock on each Trading Day during the period commencing on the
first Trading Day of the period during which the Market Price is
calculated and ending on the Repurchase
Date. The Issuer may pay the Repurchase Price (or any portion thereof)
in Class A Common Stock only if the information necessary to calculate
the Market Price is published in a daily newspaper of national
circulation. If the foregoing conditions are not satisfied with
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respect to a Holder or Holders prior to the close of business on the
Repurchase Date and the Issuer has elected to purchase the Securities
pursuant to this Article through the issuance of shares of Class A
Common Stock, the Issuer shall pay the entire Repurchase Price of the
Securities of such Holder or Holders in cash.
The "Market Price" means the average of the Last Sale Prices
of the Class A Common Stock for the five Trading Day period ending on
(if the third Business Day prior to the Repurchase Date is a Trading
Day, or if not, then on the last Trading Day prior to) the third
Business Day prior to the Repurchase Date, appropriately adjusted to
take into account the occurrence, during the period commencing on the
first of such Trading Days during such five Trading Day period and
ending on the Repurchase Date, of any event described in Sections
12.4(a), 12.4(b) or 12.4(c), subject, however, to the conditions set
forth in Section 12.4(f).
SECTION 14.5 Notice of Election. The Issuer's notice of
election to purchase with cash or Class A Common Stock or any combination
thereof shall be sent to the Holders (and to beneficial owners as required by
applicable law) in the manner provided in Section 10.4 at the time specified in
Section 14.3 or 14.4, as applicable (the "Issuer Repurchase Notice"). Such
Issuer Repurchase Notice shall state the manner of payment elected and shall
contain the following information:
In the event the Issuer has elected to pay the Repurchase
Price (or a specified percentage thereof) with Class A Common Stock,
the Issuer Repurchase Notice
shall:
(1) state that each Holder will receive Class A
Common Stock with a Market Price determined as of a specified
date prior to the Repurchase Date equal to such specified
percentage of the Repurchase Price of the Securities held by
such
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Holder (except any cash amount to be paid in lieu of
fractional shares);
(2) set forth the method of calculating the Market
Price of the Class A Common Stock as required by Section 14.4;
and
(3) state that, because the Market Price of Class A
Common Stock will be determined prior to the Repurchase Date,
Holders will bear the market risk with respect to the value of
the Class A Common Stock to be received from the date such
Market Price is determined to the Repurchase Date.
In any case, each Issuer Repurchase Notice shall include a
form of Repurchase Notice to be completed by a Securityholder and shall
state:
(A) the Repurchase Price and the Conversion Price;
(B) the name and address of the Paying Agent and the
Conversion Agent;
(C) that Securities as to which a Repurchase Notice
has been given may be converted pursuant to Article Twelve
only if the applicable Repurchase Notice has been withdrawn in
accordance with the terms of this Indenture;
(D) that Securities must be surrendered to the Paying
Agent to collect payment;
(E) that the Repurchase Price for any security as to
which a Repurchase Notice has been given and not withdrawn
will be paid promptly following the later of the Repurchase
Date and the time of surrender of such Security as described
in (D) above;
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(F) the procedures the Holder must follow to exercise
rights under this Article and a brief description of those
rights;
(G) briefly, the conversion rights of the Securities;
and
(H) the procedures for withdrawing a Repurchase
Notice (including, without limitation, for a conditional
withdrawal pursuant to the terms of Section 14.1(1)(D) or
Section 14.9).
At the Issuer's request, the Trustee shall give such Issuer
Repurchase Notice in the Issuer's name and at the Issuer's expense; provided,
however, that, in all cases, the text of such Issuer Repurchase Notice shall be
prepared by the Issuer.
Upon determination of the actual number of shares of Class A
Common Stock to be issued for each $1,000 principal amount of Securities, the
Issuer will publish such determination in a newspaper of national circulation.
SECTION 14.6 Covenants of the Issuer. All shares of Class A
Common Stock delivered upon purchase of the Securities shall be newly issued
shares or treasury shares, shall be duly authorized, validly issued, fully paid
and non-assessable by the Issuer and shall be free of preemptive rights of any
lien or adverse claim.
If the Class A Common Stock is then listed on any national
securities exchange or quoted on NASDAQ, the shares of Class A Common Stock to
be issued to purchase Securities will be similarly listed or quoted at the time
of such issuance.
SECTION 14.7 Procedure upon Repurchase. The Issuer shall
deposit cash (in respect of a cash purchase under Section 14.3 or for fractional
interests, as applicable) or shares of Class A Common Stock, or a combination
thereof, as applicable, at the time and in the manner as provided in Section
14.10, sufficient to pay the
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aggregate Repurchase Price of all Securities to be purchased on the Repurchase
Date pursuant to this Article. As soon as practicable after the Repurchase Date,
the Issuer shall deliver to each Holder entitled to receive Class A Common Stock
through the Paying Agent a certificate for the number of full shares of Class A
Common Stock issuable in payment of the Repurchase Price and cash in lieu of any
fractional interests. The Person in whose name the certificate for Class A
Common Stock is registered shall be treated as a holder of record of shares of
Class A Common Stock on the Business Day following the Repurchase Date. Subject
to Section 14.4, no payment or adjustment will be made for dividends on the
Class A Common Stock the record date for which occurred on or prior to the
Repurchase Date.
SECTION 14.8 Taxes. If a Holder of a Security is paid in Class
A Common Stock, the Issuer shall pay any documentary, stamp or similar issue or
transfer taxes payable to the United Sates of America or any political
subdivision or taxing authority thereof in respect of the issuance or delivery
of such Class A Common Stock; provided, however, that the Issuer shall not be
required to pay any tax which may be payable in respect of any transfer involved
in the issuance of shares of Class A Common Stock, and no such issue or delivery
shall be made unless and until the Person requesting such issue or delivery has
paid to the Issuer or the Paying Agent the amount of any such tax or has
established, to the satisfaction of the Issuer or the Paying Agent, that such
tax has been paid. Nothing herein shall preclude any income tax withholding
required by law or regulations.
SECTION 14.9 Effect of Repurchase Notice. Upon receipt by the
Paying Agent of the Repurchase Notice, the Holder of the Security in respect of
which such Repurchase Notice was given shall (unless such Repurchase Notice is
withdrawn as specified in the following two paragraphs) thereafter be entitled
to receive solely the Repurchase Price with respect to such Security. The
Repurchase Price shall be paid to such Holder, subject to receipt of funds
and/or securities by the Paying Agent, promptly following the later of (x) the
Repurchase Date with respect to such
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Security (provided the conditions in Section 14.1 have been satisfied) and (y)
the time of delivery of such Security to the Paying Agent by the Holder thereof
in the manner required by Section 14.1. Securities in respect of which a
Repurchase Notice has been given by the Holder thereof may not be converted
pursuant to Article Twelve on or after the date of the delivery of such
Repurchase Notice unless such Repurchase Notice has first been validly withdrawn
as specified in the following two paragraphs. The principal of Securities
payable as the Repurchase Price on the Repurchase Date shall be considered to be
principal due on such date for purposes of this Indenture, including Article
Four.
A Repurchase Notice may be withdrawn by means of a written
notice of withdrawal delivered to the office of the Paying Agent in accordance
with the Repurchase Notice at any time prior to the close of business on the
Repurchase Date specifying:
(1) the certificate number of the Security in respect of which
such notice of withdrawal is being submitted;
(2) the principal amount of the Security with respect to which
such notice of withdrawal is being submitted; and
(3) the principal amount, if any, of such Security which
remains subject to the original Repurchase Notice and which has been or
will be delivered for purchase by the Issuer.
A written notice of withdrawal of a Repurchase Notice may be
in the form set forth in the preceding paragraph or may be in the form of (i) a
conditional withdrawal contained in a Repurchase Notice pursuant to the terms of
Section 14.1(1)(D) or (ii) a conditional withdrawal containing the information
set forth in Section 14.1(1)(D) and the preceding paragraph and contained in a
written notice of withdrawal delivered to the Paying Agent as set forth in the
preceding paragraph.
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There shall be no purchase of any Securities pursuant to this
Article (other than through the issuance of Class A Common Stock in payment of
the Repurchase Price, including cash in lieu of fractional shares) if there has
occurred (prior to, on or after, as the case may be, the giving, by the Holders
of such Securities, of the required Repurchase Notice) and is continuing an
Event of Default (other than a default in the payment of the Repurchase Price
with respect to such Securities). The Paying Agent will promptly return to the
respective Holders thereof any Securities (x) with respect to which a Repurchase
Notice has been withdrawn in compliance with this Indenture, or (y) held by it
during the continuance of an Event of Default (other than a default in the
payment of the Repurchase Price with respect to such Securities) in which case,
upon such return, the Repurchase Notice with respect thereto shall be deemed to
have been withdrawn.
SECTION 14.10 Deposit of Repurchase Price. Prior to 11:00 a.m.
(New York City time) on the Repurchase Date the Issuer shall deposit with the
Trustee or with one or more Paying Agents (or, if the Issuer is acting as its
own Paying Agent, shall segregate and hold in trust as provided in Section 2.3)
an amount of money (in immediately available funds if deposited on such Business
Day) or Class A Common Stock, if permitted hereunder, sufficient to pay the
aggregate Repurchase Price of all of the Securities or portions thereof that are
to be purchased as of the Repurchase Date.
SECTION 14.11 Securities Repurchased in Part. Any Security
which is to be purchased only in part shall be surrendered at the office of the
Paying Agent (with, if the Issuer or the Trustee so requires, due endorsement
by, or a written instrument of transfer in form satisfactory to the Issuer or
the Trustee duly executed by, the Holder thereof or such Holder's attorney duly
authorized in writing) and the Issuer shall execute and the Trustee shall
authenticate and deliver to the Holder of such Security, without service charge,
a new Security or Securities, of any authorized denomination as requested by
such Holder in aggregate principal amount equal to, and in exchange for, the
portion
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of the principal amount of the Security so surrendered which is not purchased.
SECTION 14.12 Issuer to Comply with Securities Laws Upon
Purchase of Securities. In connection with any offer to purchase or purchase of
Securities under this Article (provided that such offer or purchase constitutes
an "issuer tender offer" for purposes of Rule 13e-4 (which term, as used herein,
includes any successor provision thereto) under the Exchange Act at the time of
such offer or purchase), the Issuer shall (i) comply with Rule 13e-4 and Rule
14e-1 under the Exchange Act, (ii) file the related Schedule 13E-4 (or any
successor schedule, form or report) under the Exchange Act, and (iii) otherwise
comply with all Federal and state securities laws so as to permit the rights and
obligations under this Article to be exercised in the time and in the manner
specified in this Article.
SECTION 14.13 Repayment to the Issuer. The Trustee and any
Paying Agent shall return to the Issuer any cash or shares of Class A Common
Stock that remain unclaimed as provided in Section 9.4, together with interest
or dividends, if any, thereon held by them for the payment of the Repurchase
Price upon Issuer Order; provided, however, that to the extent that the
aggregate amount of cash or shares of Class A Common Stock deposited by the
Issuer pursuant to Section 14.10 exceeds the aggregate Repurchase Price of the
Securities or portions thereof which the Issuer is obligated to purchase as of
the Repurchase Date, then promptly after the Business Day following the
Repurchase Date the Trustee shall return any such excess to the Issuer together
with interest or dividends, if any, thereon.
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IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, all as of October 4, 1999.
AMERICAN TOWER CORPORATION
By /s/ Joseph L. Winn
Name: Joseph L. Winn
Title: Chief Financial Officer
Attest:
By /s/ Adam Benjamin
Name: Adam Benjamin
Title: Assistant Secretary
THE BANK OF NEW YORK, not in
its individual capacity
but solely as Trustee
By /s/ Van Brown
Name: Van Brown
Title: Assistant Vice President
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EXHIBIT A
[FORM OF FACE OF SECURITY]
THE FOLLOWING LEGEND SHALL APPEAR ON THE FACE OF EACH RESTRICTED SECURITY OTHER
THAN ANY RESTRICTED GLOBAL SECURITY:
THIS SECURITY (OR ITS PREDECESSOR) AND ANY CLASS A COMMON
STOCK ISSUED ON CONVERSION HEREOF HAVE NOT BEEN REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE
SECURITIES LAW AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED
EXCEPT (A)(1) TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT
PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL
BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (2) PURSUANT TO AN
EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144
THEREUNDER (IF AVAILABLE), OR (3) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT, AND (B) IN ACCORDANCE WITH ALL APPLICABLE
SECURITIES LAWS OF THE STATES OF THE UNITED STATES.
EACH PURCHASER OF THIS SECURITY IS HEREBY NOTIFIED THAT THE
SELLER OF THIS SECURITY MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF
SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER.
THE FOLLOWING LEGEND SHALL APPEAR ON THE FACE OF EACH RESTRICTED GLOBAL
SECURITY:
THE SECURITIES EVIDENCED BY THIS GLOBAL SECURITY (OR THEIR
PREDECESSORS) AND ANY CLASS A COMMON STOCK ISSUED ON CONVERSION OF THOSE
SECURITIES HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAW AND MAY NOT
BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE ABSENCE OF
REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM.
<PAGE>
EACH BENEFICIAL OWNER OF AN INTEREST IN ANY OF THE SECURITIES
EVIDENCED BY THIS GLOBAL SECURITY (INCLUDING ANY PARTICIPANT IN THE DEPOSITARY
HOLDING THE GLOBAL SECURITY THAT IS SHOWN AS HOLDING SUCH AN INTEREST ON THE
RECORDS OF SUCH DEPOSITARY AND EACH BENEFICIAL OWNER THAT HOLDS THROUGH ANY SUCH
PARTICIPANT) AGREES FOR THE BENEFIT OF AMERICAN TOWER CORPORATION (THE "ISSUER")
THAT (I) ANY BENEFICIAL INTEREST IN THE SECURITIES AND ANY SHARES OF CLASS A
COMMON STOCK ISSUABLE UPON THEIR CONVERSION MAY BE RESOLD, PLEDGED OR OTHERWISE
TRANSFERRED ONLY (A)(1) TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A
QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE
SECURITIES ACT PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (2)
PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY
RULE 144 THEREUNDER (IF AVAILABLE), OR (3) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT, AND (B) IN ACCORDANCE WITH ALL APPLICABLE
SECURITIES LAWS OF THE STATES OF THE UNITED STATES AND (II) THE BENEFICIAL OWNER
WILL, AND EACH SUBSEQUENT BENEFICIAL OWNER OF AN INTEREST IN ANY OF THE
SECURITIES EVIDENCED BY THIS GLOBAL SECURITY OR ANY CLASS A COMMON STOCK
ISSUABLE UPON CONVERSION THEREOF IS REQUIRED TO, NOTIFY ANY PURCHASER OF ANY
BENEFICIAL INTEREST IN THE SECURITIES OR SUCH CLASS A COMMON STOCK ISSUABLE UPON
ITS CONVERSION FROM IT OF THE RESALE RESTRICTIONS REFERRED TO IN (I) ABOVE.
EACH PURCHASER OF ANY BENEFICIAL INTEREST IN THE SECURITIES IS
HEREBY NOTIFIED THAT THE SELLER OF SUCH BENEFICIAL INTEREST MAY BE RELYING ON
THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY
RULE 144A THEREUNDER.
THE FOLLOWING LEGEND SHALL APPEAR ON THE FACE OF EACH GLOBAL SECURITY:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE
INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE
DEPOSITARY OR A NOMINEE OF THE DEPOSITARY, WHICH MAY BE TREATED BY THE ISSUER,
THE TRUSTEE
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<PAGE>
AND ANY AGENT THEREOF AS OWNER AND HOLDER OF THIS SECURITY FOR ALL PURPOSES.
THE FOLLOWING LEGEND SHALL APPEAR ON THE FACE OF EACH GLOBAL SECURITY FOR WHICH
THE DEPOSITORY TRUST COMPANY IS TO BE THE DEPOSITARY:
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"),
TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT,
AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH
OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
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<PAGE>
No. $
[CUSIP NO.]
American Tower Corporation
6.25% Convertible Notes Due 2009
American Tower Corporation (the "Issuer"), for value received
hereby promises to pay to _________ or registered assigns the principal sum of
_________ Dollars (which principal amount may from time to time be increased or
decreased to such other principal amounts (which, taken together with the
principal amounts of all other Outstanding Securities, shall not exceed
$360,000,000 in the aggregate at any time) by adjustments made on the records of
the Trustee hereinafter referred to in accordance with the Indenture) at the
Issuer's office or agency for said purpose in the Borough of Manhattan, The City
of New York, on October 15, 2009, in 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, and to pay interest, semi-annually on April 15 and
October 15 of each year and at maturity, on said principal sum in like coin or
currency at the rate per annum set forth above beginning on April 15, 2000, or
from the most recent date to which interest has been paid or duly provided for
on the Securities. The interest so payable on any April 15 or October 15 will,
except as otherwise provided in the Indenture referred to on the reverse hereof,
be paid to the person in whose name this Security is registered at the close of
business on the March 31 or September 30 preceding such April 15 or October 15,
whether or not such day is a business day; provided that interest may be paid,
at the option of the Issuer, by mailing a check therefor payable to the
registered Holder entitled thereto at his last address as it appears on the
Security register.
Reference is made to the further provisions set forth on the
reverse hereof, including without limitation
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provisions giving the Holder hereof the right to convert this Security into
Class A Common Stock of the Issuer on the terms and subject to the conditions
and limitations referred to on the reverse hereof, as more fully specified in
the Indenture. Such further provisions shall for all purposes have the same
effect as though fully set forth at this place.
This Security shall not be valid or obligatory until the
certificate of authentication hereon shall have been duly signed by the Trustee
acting under the Indenture.
IN WITNESS WHEREOF, the Issuer has caused this instrument to
be duly executed under its corporate seal.
Dated:
[Seal]
AMERICAN TOWER CORPORATION
By____________________________
By____________________________
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<PAGE>
[FORM OF REVERSE OF SECURITY]
American Tower Corporation
6.25% Convertible Notes Due 2009
This Security is one of a duly authorized issue of debt
securities of the Issuer, limited to up to the aggregate principal amount of
$300,000,000, or up to $360,000,000 if an option is fully exercised (except as
otherwise provided in the Indenture defined below), issued or to be issued
pursuant to an indenture dated as of October 4, 1999 (the "Indenture"), duly
executed and delivered by the Issuer to The Bank of New York, as Trustee (the
"Trustee"). Reference is hereby made to the Indenture and all indentures
supplemental thereto for a description of the rights, limitations of rights,
obligations, duties and immunities thereunder of the Trustee, the Issuer and the
Holders (the word "Holders" or "Holder" meaning the registered Holders or
registered Holder) of the Securities. Terms used but not otherwise defined
herein shall have the meanings assigned thereto in the Indenture.
In case an Event of Default, as defined in the Indenture,
shall have occurred and be continuing, the principal of all the Securities and
interest accrued thereon may be declared due and payable, in the manner and with
the effect, and subject to the conditions, provided in the Indenture. The
Indenture provides that in certain events a declaration of default, a default,
or the consequences of either of them may be waived by the Holders of a majority
in aggregate principal amount of the Securities then outstanding except a
default in the payment of principal, Change in Control Repurchase Price or
Repurchase Price of or premium, if any, or interest on any of the Securities or
in respect of the conversion of any of the Securities. Any such consent or
waiver by the Holder of this Security (unless revoked as provided in the
Indenture) shall be conclusive and binding upon such Holder and upon all future
Holders and owners of this Security and any Security which
-6-
<PAGE>
may be issued in exchange or substitution hereof, whether or not any notation
thereof is made upon this Security or such other Securities.
The Indenture permits the Issuer and the Trustee, without the
consent of any of the Holders under the circumstances described in Section 7.1
of the Indenture, and with the consent of the Holders of not less than a
majority in aggregate principal amount of the Securities at the time
outstanding, evidenced as in the Indenture provided, to execute supplemental
indentures adding any provisions to or changing in any manner or eliminating any
of the provisions of the Indenture or of any supplemental indenture or modifying
in any manner the rights of the Holders of the Securities; provided that no such
supplemental indenture shall (a) extend the final maturity of any Security, or
reduce the principal amount thereof or premium, if any, thereon, or reduce the
rate or extend the time of payment of interest thereon, or any premium payable
on the redemption thereof, or change the place of payment where, or the coin or
currency in which, any principal, premium or interest is payable, or reduce or
alter the method of computation of any amount payable on redemption, repurchase
or repayment thereof (or the time at which such redemption, repurchase or
repayment may be made), or impair or adversely affect the right of any
Securityholder to institute suit for the payment or conversion thereof or
adversely affect the right to convert the Securities into Class A Common Stock
of the Issuer, in each case, without the consent of the Holder of the Security
so affected; provided no consent of any Holder of any Security will be necessary
to permit the Trustee and the Issuer to execute supplemental
-7-
<PAGE>
indentures under the circumstances provided in Section 7.1(e) and Section 12.5
of the Indenture, or (b) reduce the aforesaid percentage in principal amount of
Securities, the consent of the Holders of which is required for any such
supplemental indenture, without the consent of the Holders of each Security so
affected, or (c) reduce the percentage of Securities necessary to consent to
waive any past default under the Indenture to less than a majority, without the
consent of the Holders of each Security so affected; or (d) modify any of the
provisions of the Indenture relating to supplemental indentures or waivers of
past defaults, except to increase any percentage provided for in Section 4.10 or
Section 7.2 of the Indenture or to provide that certain other provisions of the
Indenture cannot be modified or waived without the consent of the Holder of each
Security affected thereby.
Subject to the provisions of the Indenture, the Holder of this
Security has the right, at his option, at any time until and including, but not
after the close of business on, October 15, 2009 (except that, in case this
Security or a portion hereof shall be called for redemption and the Issuer shall
not thereafter default in making due provision for the payment of the redemption
price, such right shall terminate with respect to this Security or such portion
hereof at the close of business on the Business Day prior to the date fixed for
redemption), to convert the principal amount of this Security, or any portion
thereof which is $1,000 or an integral multiple of $1,000, into fully paid and
non-assessable shares of Class A Common Stock of the Issuer, as said shares
shall be constituted at the date of conversion, at the conversion price of
$24.40 in principal amount of Securities for each share of such Class A Common
Stock, or at the adjusted conversion price in effect at the date of conversion
if an adjustment has been made, determined as provided in the Indenture, upon
surrender of this Security to the Issuer at the office or agency of the Issuer
maintained for that purpose in the Borough of Manhattan, The City of New York,
together with a fully executed notice substantially in the form set forth at the
foot hereof that the Holder elects so to convert this Security (or any portion
hereof which is an integral multiple of $1,000 principal amount) and, if this
Security is surrendered for conversion during the period between the close of
business on March 31 or September 30 in any year and the opening of business on
the following April 15 or October 15 and has not been called for redemption on a
redemption date within such period (or on such April 15 or October 15), or
within five days after such period, accompanied by payment of an amount equal to
the interest payable on such April 15 or October 15 on the principal amount of
the Security being surrendered for conversion. Except as provided in the
preceding sentence or as otherwise
-8-
<PAGE>
expressly provided in the Indenture, no payment or adjustment shall be made on
account of interest accrued on this Security (or portion thereof) so converted
or on account of any dividend or distribution on any such Common Stock issued
upon conversion, but the Holder of record of this Security on March 31 or
September 30 shall be entitled to receive interest on such Security on the
succeeding April 15 or October 15 notwithstanding the conversion of such
Security prior to such April 15 or October 15. If so required by the Issuer or
the Trustee, this Security, upon surrender for conversion as aforesaid, shall be
duly endorsed by, or be accompanied by instruments of transfer, in form
satisfactory to the Issuer, duly executed by, the Holder or by his duly
authorized attorney. The conversion price from time to time in effect is subject
to adjustment as provided in the Indenture. No fractions of shares will be
issued on conversion. In the sole discretion of the Board of Directors, any
fractional interest may be rounded up to the nearest full share, or an
adjustment in cash will be made for any fractional interest, in either case in
accordance with and as provided in the Indenture.
No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligation of the Issuer,
which is absolute and unconditional, to pay the principal of and premium, if
any, and interest on this Security at the place, times, and rate, and in the
currency, herein prescribed.
The Securities are issuable only as registered Securities
without coupons in denominations of $1,000 and any integral multiple of $1,000.
In the manner and subject to the limitations provided in the
Indenture, this Security may be exchanged for a like aggregate principal amount
of Securities of other authorized denominations.
Upon due presentment for registration of transfer of this
Security at the above-mentioned office or agency of the Issuer, a new Security
or Securities of authorized denominations, for a like aggregate principal
amount, will
-9-
<PAGE>
be issued to the transferee as provided in the Indenture. No service charge
shall be made for any such transfer, but the Issuer may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
relation thereto.
The Securities may be redeemed at the option of the Issuer as
a whole, or from time to time in part, on and after October 22, 2002, upon
mailing a notice of such redemption not less than 20 nor more than 60 days prior
to the date fixed for redemption to the Holders of Securities to be redeemed,
all as provided in the Indenture, at the following redemption prices (expressed
in percentages of the principal amount) together in each case with accrued
interest to the date fixed for redemption: If rendered during the twelve-month
period beginning October 15, of each year indicated,
Year Redemption Price
---- ----------------
2002 103.125%
2003 102.083
2004 101.042
2005 and thereafter 100%
The Securities do not have the benefit of any sinking fund
obligations.
If at any time there shall occur any Change in Control as
defined in the Indenture with respect to the Issuer, each Holder of Securities
shall, except as otherwise provided in the Indenture, have the right, at such
Holder's option but subject to the conditions set forth in the Indenture, to
require the Issuer to redeem on the Change in Control Repurchase Date as defined
in the Indenture all or any part of such Holder's Securities that is $1,000 or
an integral multiple thereof at a Change in Control Repurchase Price equal to
the principal amount thereof, and accrued and unpaid interest, if any, up to but
excluding the Change in Control Repurchase Date.
-10-
<PAGE>
Subject to payment by the Issuer of a sum suffi cient to pay
the amount due on redemption, interest on this Security (or portion hereof if
this Security is redeemed in part) shall cease to accrue upon the date duly
fixed for redemption of this Security (or portion hereof if this Security is
redeemed in part).
Subject to the terms and conditions of the Indenture, the
Issuer shall become obligated to purchase, at the option of the Holder, the
Securities held by such Holder on October 22, 2006 (the "Repurchase Date") at
the Repurchase Price of 100% of the principal amount thereof, plus accrued and
unpaid interest, if any, up to but excluding the Repurchase Date, upon delivery
of a Repurchase Notice containing the information set forth in the Indenture, at
any time from the opening of business on the date that is 20 Business Days prior
to the Repurchase Date until the close of business on the Repurchase Date and
upon delivery of the Securities to the Paying Agent by the Holder as set forth
in the Indenture.
The Repurchase Price may be paid, at the option of the Issuer,
in cash or by the issuance and delivery of shares of Class A Common Stock of the
Issuer, or in any combination thereof.
Holders have the right to withdraw any Repurchase Notice by
delivering to the Paying Agent a written notice of withdrawal in accordance with
the provisions of the Indenture.
If cash (and/or securities if permitted under the Indenture)
sufficient to pay the Repurchase Price of all Securities or portions thereof to
be purchased as of the Repurchase Date, is deposited with the Trustee or a
Paying Agent on the Repurchase Date, interest ceases to accrue on such
Securities (or portions thereof) immediately after such Repurchase Date, and the
Holder thereof shall have no other rights as such (other than the right to
receive the Repurchase Price upon surrender of such Security).
-11-
<PAGE>
The Holder of this Security and the Class A Common Stock
issuable on the conversion hereof is entitled to the benefits of a Registration
Rights Agreement executed by the Issuer. Whenever in this Security there is a
reference to the payment of interest on, or in respect of, a Security, such
mention shall be deemed to include mention of the payment of liquidated damages
to the extent payable as contemplated in such Registration Rights Agreement.
The Issuer, the Trustee and any authorized agent of the Issuer
or the Trustee may deem and treat the registered Holder hereof as the absolute
owner of this Security (whether or not this Security shall be overdue and
notwithstanding any notation of ownership or other writing hereon made by anyone
other than the Issuer or the Trustee or any authorized agent of the Issuer or
the Trustee), for the purpose of receiving payment of, or on account of, the
principal hereof and premium, if any, and, subject to the provisions on the face
hereof, interest hereon and for all other purposes, and neither the Issuer nor
the Trustee nor any authorized agent of the Issuer or the Trustee shall be
affected by any notice to the contrary.
No recourse shall be had for the payment of the principal of
or premium, if any, or the interest on this Security, for any claim based
hereon, or otherwise in respect hereof, or based on or in respect of the
Indenture or any indenture supplemental thereto, against any incorporator, as
such, or against any past, present or future stockholder, officer or director,
as such, of the Issuer or of any partner or member of the Issuer or of any
successor, either directly or through the Issuer or any successor, whether by
virtue of any constitution, statute or rule of law or by the enforcement of any
assessment or penalty or otherwise, all such liability being, by the acceptance
thereof and as part of the consideration for the issue hereof, expressly waived
and released.
The Indenture and this Security shall be governed by and
construed in accordance with the laws of the State of New York.
-12-
<PAGE>
[FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This is one of the Securities described in the
within-mentioned Indenture.
THE BANK OF NEW YORK,
as Trustee
_______________________________
Authorized Signatory
-13-
<PAGE>
[FORM OF CONVERSION NOTICE]
To: American Tower Corporation
The undersigned owner of this Security hereby: (i) irrevocably
exercises the option to convert this Security, or the portion hereof below
designated, for shares of Class A Common Stock of American Tower Corporation in
accordance with the terms of the Indenture referred to in this Security and (ii)
directs that such shares of Class A Common Stock deliverable upon the
conversion, together with any check in payment for fractional shares and any
Security(ies) representing any unconverted principal amount hereof, be issued
and delivered to the registered Holder hereof unless a different name has been
indicated below. If shares and/or Security(ies) are to be delivered registered
in the name of a person other than the undersigned, the undersigned will pay all
transfer taxes payable with respect thereto. Any amount required to be paid by
the undersigned on account of interest accompanies this Security.
Dated:
_______________________________
Signature
Fill in for registration of shares if to be delivered, and of Securities if to
be issued, otherwise than to and in the name of the registered Holder.
_______________________________
Social Security or Other
Taxpayer Identifying Number
_______________________________
(Name)
_______________________________
(Street Address)
_______________________________
(City, State and Zip Code)
(Please print name and address)
Principal Amount to Be Converted:
(if less than all)
$__________________________________
-14-
<PAGE>
[FORM OF OPTION OF HOLDER TO ELECT REDEMPTION
UPON CHANGE IN CONTROL]
If you want to elect to have this Security purchased in its
entirety by the Issuer pursuant to Article Thirteen of the Indenture, check the
box:
/ /
If you want to elect to have only a part of this Security
purchased by the Issuer pursuant to Article Thirteen of the Indenture, state the
principal amount:
$
Dated: Your Signature:____________________
(Sign exactly as name appears
on the face of this Security)
Signature
Guarantee:________________________________
(Signature must be guaranteed by a member
firm of the New York Stock Exchange or a
commercial bank or trust company)
-15-
EXHIBIT 4.2
AMERICAN TOWER CORPORATION
THE BANK OF NEW YORK
Trustee
------------------------------------
Indenture
Dated as of October 4, 1999
------------------------------------
$425,500,000
(subject to increase to up to $468,050,000 in the event and
to the extent
an option is exercised)
2.25% Convertible Notes Due 2009
<PAGE>
<TABLE>
<CAPTION>
TABLE OF CONTENTS
Page
<S> <C>
PARTIES............................................................................................. 1
RECITALS
Authorization of Indenture.................................................................... 1
Compliance with Legal Requirements............................................................ 1
Purpose of and Consideration for Indenture.................................................... 1
ARTICLE ONE
DEFINITIONS
SECTION 1.1 Certain Terms Defined..............................................................1
Affiliate..............................................................................2
Agent ..............................................................................2
Board of Directors.....................................................................2
Board Resolution.......................................................................2
Business Day...........................................................................2
Capital Stock..........................................................................3
Cash Equivalents.......................................................................3
Change in Control......................................................................3
Change in Control Repurchase Date......................................................3
Change in Control Repurchase Price.....................................................3
Class A Common Stock...................................................................4
Closing Date...........................................................................4
Common Stock...........................................................................4
Conversion Agent.......................................................................4
Conversion Price.......................................................................4
Corporate Trust Office.................................................................4
Date of Conversion.....................................................................4
Depositary.............................................................................4
Disposition............................................................................4
DTC ..............................................................................5
Equity Interests.......................................................................5
Event of Default.......................................................................5
Excess Amount..........................................................................5
Exchange Act...........................................................................5
Global Security........................................................................5
-i-
<PAGE>
Holder ..............................................................................5
Holder of Securities...................................................................5
Immediate Family Member................................................................5
Indenture..............................................................................5
Issue Price............................................................................5
Issuer ..............................................................................6
Issuer Notice..........................................................................6
Issuer Order...........................................................................6
Issuer Repurchase Notice...............................................................6
Issuer Repurchase Notice Date..........................................................6
Last Sale Price........................................................................6
NASDAQ ..............................................................................7
Officer ..............................................................................7
Officers' Certificate..................................................................7
Opinion of Counsel.....................................................................7
Original Issue Discount................................................................7
Outstanding............................................................................7
Paying Agent...........................................................................8
Permitted Owner........................................................................8
Person ..............................................................................8
principal..............................................................................9
Principal Stockholders.................................................................9
Proceeding.............................................................................9
Redemption Date........................................................................9
Redemption Price.......................................................................9
Registrar..............................................................................9
Registration Rights Agreement..........................................................9
Related Party..........................................................................9
Repurchase Date........................................................................9
Repurchase Price.......................................................................9
Responsible Officer...................................................................10
Restricted Global Security............................................................10
Restricted Security...................................................................10
SEC .............................................................................10
Security .............................................................................10
Securities............................................................................10
Securities Act........................................................................10
Securityholder.........................................................................5
Subsidiary............................................................................10
Surviving Person......................................................................11
TIA .............................................................................11
Trading Day...........................................................................11
-ii-
<PAGE>
Trustee .............................................................................11
U.S. Government Obligations...........................................................11
ARTICLE TWO
SECURITIES
SECTION 2.1 Form and Dating...................................................................11
SECTION 2.2 Execution and Authentication......................................................12
SECTION 2.3 Registrar, Paying Agent and
Conversion Agent..............................................................15
SECTION 2.4 Paying Agent to Hold Money in Trust...............................................16
SECTION 2.5 Holder Lists ....................................................................16
SECTION 2.6 Transfer and Exchange.............................................................16
SECTION 2.7 Replacement Securities............................................................17
SECTION 2.8 Outstanding Securities............................................................18
SECTION 2.9 Temporary Securities..............................................................18
SECTION 2.10 Cancellation ....................................................................19
SECTION 2.11 Defaulted Interest...............................................................19
SECTION 2.12 CUSIP Numbers....................................................................19
SECTION 2.13 Global Securities................................................................20
SECTION 2.14 Transfer Restrictions............................................................22
ARTICLE THREE
COVENANTS
SECTION 3.1 Payment of Principal and Interest.................................................23
SECTION 3.2 Written Statement to Trustee......................................................24
SECTION 3.3 Corporate Existence...............................................................24
SECTION 3.4 Reports by the Issuer.............................................................24
SECTION 3.5 Waiver of Usury Defense...........................................................25
SECTION 3.6 Payment of Excess Cash Dividends..................................................26
SECTION 3.7 Registration Rights...............................................................26
SECTION 3.8 Calculation of Original Issue
Discount......................................................................27
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<PAGE>
ARTICLE FOUR
REMEDIES OF THE TRUSTEE AND
SECURITYHOLDERS ON EVENT OF DEFAULT
SECTION 4.1 Event of Default Defined;
Acceleration of Maturity; Waiver of
Default.......................................................................27
SECTION 4.2 Collection of Indebtedness by
Trustee; Trustee May Prove Debt...............................................30
SECTION 4.3 Application of Proceeds...........................................................33
SECTION 4.4 Suits for Enforcement.............................................................34
SECTION 4.5 Restoration of Rights or Abandonment
of Proceedings................................................................35
SECTION 4.6 Limitations on Suits by
Securityholders...............................................................35
SECTION 4.7 Unconditional Right of
Securityholders to Receive
Principal, Premium and Interest, to
Convert and to Institute Certain
Suits.........................................................................36
SECTION 4.8 Powers and Remedies Cumulative; Delay
or Omission Not Waiver of Default.............................................36
SECTION 4.9 Control by Securityholders........................................................37
SECTION 4.10 Waiver of Past Defaults..........................................................38
SECTION 4.11 Trustee to Give Notice of Default,
But May Withhold in Certain
Circumstances.................................................................38
SECTION 4.12 Right of Court to Require Filing of
Undertaking to Pay Costs......................................................39
SECTION 4.13 Waiver of Stay or Extension Laws.................................................39
ARTICLE FIVE
CONCERNING THE TRUSTEE
SECTION 5.1 Duties and Responsibilities of the
Trustee; During Default; Prior to
Default.......................................................................40
SECTION 5.2 Certain Rights of the Trustee.....................................................42
-iv-
<PAGE>
SECTION 5.3 Trustee Not Responsible for Recitals,
Disposition of Securities or
Application of Proceeds Thereof...............................................44
SECTION 5.4 Trustee and Agents May Hold
Securities; Collections, etc..................................................44
SECTION 5.5 Compensation and Indemnification of
Trustee and Its Prior Claim...................................................44
SECTION 5.6 Right of Trustee to Rely on Officers'
Certificate, etc..............................................................46
SECTION 5.7 Persons Eligible for Appointment as
Trustee.......................................................................46
SECTION 5.8 Resignation and Removal; Appointment
of Successor Trustee..........................................................47
SECTION 5.9 Acceptance of Appointment by
Successor Trustee.............................................................49
SECTION 5.10 Merger, Conversion, Consolidation or
Succession to Business of Trustee.............................................49
ARTICLE SIX
CONCERNING THE SECURITYHOLDERS
SECTION 6.1 Evidence of Action Taken by
Securityholders...............................................................50
SECTION 6.2 Proof of Execution of Instruments and
of Holding of Securities......................................................51
SECTION 6.3 Holders to Be Treated as Owners...................................................51
SECTION 6.4 Securities Owned by Issuer Deemed Not
Outstanding...................................................................52
SECTION 6.5 Right of Revocation of Action Taken...............................................52
SECTION 6.6 Record Date for Consents and Waivers..............................................53
ARTICLE SEVEN
SUPPLEMENTAL INDENTURES
SECTION 7.1 Supplemental Indentures Without
Consent of Securityholders....................................................54
SECTION 7.2 Supplemental Indentures with Consent
of Securityholders............................................................55
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<PAGE>
SECTION 7.3 Effect of Supplemental Indenture..................................................57
SECTION 7.4 Documents to be Given to Trustee..................................................58
SECTION 7.5 Notation on Securities in Respect of
Supplemental Indentures.............................................58
ARTICLE EIGHT
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 8.1 Covenant Not to Merge, Consolidate,
Sell or Convey Property Except
Under Certain Conditions......................................................58
SECTION 8.2 Successor Corporation or Entity
Substituted...................................................................59
SECTION 8.3 Opinion of Counsel and Officers'
Certificate to Trustee........................................................60
ARTICLE NINE
SATISFACTION AND DISCHARGE
OF INDENTURE; UNCLAIMED MONEYS
SECTION 9.1 Satisfaction and Discharge of
Indenture.....................................................................60
SECTION 9.2 Application by Trustee of Funds
Deposited for Payment of
Securities....................................................................62
SECTION 9.3 Repayment of Moneys Held by Paying
Agent.........................................................................62
SECTION 9.4 Return of Moneys Held by Trustee and
Paying Agent Unclaimed for Two
Years.........................................................................63
SECTION 9.5 Indemnity for U.S. Government
Obligations...................................................................63
-vi-
<PAGE>
ARTICLE TEN
MISCELLANEOUS PROVISIONS
SECTION 10.1 Partners, Incorporators,
Stockholders, Officers and
Directors of Issue Exempt from
Individual Liability..........................................................64
SECTION 10.2 Provisions of Indenture for the Sole
Benefit of Parties and
Securityholders...............................................................64
SECTION 10.3 Successors and Assigns of Issuer
Bound by Indenture............................................................64
SECTION 10.4 Notices and Demands on Issuer,
Trustee and Securityholders...................................................64
SECTION 10.5 Officers' Certificates and Opinions
of Counsel; Statements to Be
Contained Therein.............................................................66
SECTION 10.6 Payments Due on Saturdays, Sundays
and Legal Holidays............................................................67
SECTION 10.7 Conflict with TIA................................................................67
SECTION 10.8 Communications by Holders with Other
Holders.......................................................................68
SECTION 10.9 Issuer to Furnish Trustee Names and
Addresses of Holders..........................................................68
SECTION 10.10 New York Law to Govern..........................................................68
SECTION 10.11 Counterparts....................................................................68
SECTION 10.12 Effect of Headings..............................................................69
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 11.1 Right of Optional Redemption;
Prices........................................................................69
SECTION 11.2 Notice of Redemption; Partial
Redemptions...................................................................69
SECTION 11.3 Payment of Securities Called for
Redemption....................................................................71
SECTION 11.4 Exclusion of Certain Securities from
Eligibility for Selection for
Redemption....................................................................72
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<PAGE>
SECTION 11.5 Conversion Arrangement on Call for
Redemption....................................................................73
ARTICLE TWELVE
CONVERSION OF SECURITIES
SECTION 12.1 Conversion Privilege.............................................................74
SECTION 12.2 Exercise of Conversion Privilege.................................................75
SECTION 12.3 Fractional Shares................................................................77
SECTION 12.4 Adjustment of Conversion Price...................................................77
SECTION 12.5 Continuation of Conversion Privilege
in Case of Reclassification,
Reorganization, Change, Merger,
Consolidation or Sale of Assets...............................................82
SECTION 12.6 Notice of Certain Events.........................................................83
SECTION 12.7 Taxes on Conversion..............................................................84
SECTION 12.8 Issuer to Provide Class A Common
Stock.........................................................................85
SECTION 12.9 Disclaimer of Responsibility for
Certain Matters...............................................................86
SECTION 12.10 Return of Funds Deposited for
Redemption of Converted Securities............................................87
ARTICLE THIRTEEN
RIGHT TO REQUIRE REDEMPTION UPON CHANGE IN CONTROL
SECTION 13.1 Right to Require Redemption......................................................87
SECTION 13.2 Notices; Method of Exercising
Redemption Right, etc.........................................................88
SECTION 13.3 Definition of Change in Control..................................................90
SECTION 13.4 Limitation on Right to Require
Redemption....................................................................91
ARTICLE FOURTEEN
REPURCHASE OF SECURITIES AT OPTION OF THE HOLDER
SECTION 14.1 General .........................................................................92
-viii-
<PAGE>
SECTION 14.2 Issuer's Right to Elect Manner of
Payment of Repurchase Price...................................................94
SECTION 14.3 Repurchase with Cash.............................................................95
SECTION 14.4 Payment by Issuance of Class A
Common Stock..................................................................95
SECTION 14.5 Notice of Election...............................................................98
SECTION 14.6 Covenants of the Issuer.........................................................100
SECTION 14.7 Procedure upon Repurchase.......................................................100
SECTION 14.8 Taxes ...................................................................101
SECTION 14.9 Effect of Repurchase Notice.....................................................101
SECTION 14.10 Deposit of Repurchase Price....................................................103
SECTION 14.11 Securities Repurchased in Part.................................................103
SECTION 14.12 Issuer to Comply with Securities
Laws Upon Purchase of Securities.............................................104
SECTION 14.13 Repayment to the Issuer........................................................104
</TABLE>
SIGNATURES
EXHIBIT A -- FORM OF SECURITY
-ix-
<PAGE>
THIS INDENTURE, dated as of October 4, 1999 between American
Tower Corporation, a Delaware corporation (the "Issuer"), and The Bank of New
York, a New York banking corporation (the "Trustee"),
W I T N E S S E T H :
WHEREAS, the Issuer has duly authorized the issue of its 2.25%
Convertible Notes Due 2009 (the "Securities") of substantially the tenor and
amount hereinafter set forth;
WHEREAS, the Issuer has duly authorized the execution and
delivery of this Indenture to provide, among other things, for the
authentication, delivery and administration of the Securities; and
WHEREAS, all things necessary to make this Indenture a valid
indenture and agreement according to its terms have been done;
NOW, THEREFORE:
In consideration of the premises and the purchases of the
Securities by the Holders thereof, the Issuer and the Trustee mutually covenant
and agree for the equal and proportionate benefit of the respective Holders from
time to time of the Securities as follows:
ARTICLE ONE
DEFINITIONS
SECTION 1.1 Certain Terms Defined. The following terms (except
as otherwise expressly provided or unless the context otherwise clearly
requires) for all purposes of this Indenture and of any indenture supplemental
hereto shall have the respective meanings specified in this Section. All other
terms used in this Indenture which are defined in the TIA, or the definitions of
which in the Securities Act are referred to in the TIA (except as herein
otherwise expressly provided or unless the context otherwise requires), shall
<PAGE>
have the meaning assigned to such terms in the TIA and the Securities Act as in
force at the date of this Indenture. All accounting terms used herein and not
expressly defined shall have the meanings given to them in accordance with
generally accepted accounting principles, and the term "generally accepted
accounting principles" shall mean such accounting principles which are generally
accepted at the date or time of any computation. The words "herein", "hereof"
and "hereunder" and other words of similar import refer to this Indenture as a
whole and not to any particular Article, Section or other subdivision. The terms
defined in this Article include the plural as well as the singular.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified 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.
"Agent" means any Registrar, Paying Agent or Conversion Agent.
"Board of Directors" means either the Board of Directors of
the Issuer or any committee of such Board duly authorized to act on its behalf.
"Board Resolution" means a copy of one or more resolutions,
certified by the secretary or an assistant secretary of the Issuer to have been
duly adopted by the Board of Directors and to be in full force and effect on the
date of such certification, and delivered to the Trustee.
"Business Day" means a day which in the City and State of New
York is neither Saturday, Sunday, a legal holiday nor a day on which banking
institutions and trust companies are authorized by law or regulation or
executive order to close.
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"Capital Stock" means (i) in the case of a corporation,
capital stock, (ii) in the case of any association or business entity, any and
all shares, interests, participations, rights or other equivalents (however
designated) or capital stock and (iii) in the case of a partnership, partnership
interests (whether general or limited) and any other interest or participation
that confers on a Person the right to receive a share of the profits and losses
of, or distributions of assets of, such partnership.
"Cash Equivalents" means (i) United States dollars, (ii)
securities issued or directly and fully guaranteed or insured by the United
States government or any agency or instrumentality thereof having maturities of
less than one year from the date of acquisition, (iii) certificates of deposit
and eurodollar time deposits with maturities of less than one year from the date
of acquisition, bankers' acceptances with maturities of less than one year and
overnight bank deposits, in each case with any lender party to the Credit
Agreements or with any domestic commercial bank having capital and surplus in
excess of $500,000,000 and a Keefe Bank Watch Rating of "B" or better, (iv)
repurchase obligations with a term of not more than seven days for underlying
securities of the types described in clauses (ii) and (iii) entered into with
any financial institution meeting the qualifications specified in clause (iii)
above and (v) commercial paper having the highest rating obtainable from Moody's
Investors Service, Inc. or Standard & Poor's Ratings Services, a division of the
McGraw-Hill Companies, Inc., and in each case maturing within nine months after
the date of acquisition.
"Change in Control" has the meaning assigned to it in Section
13.3.
"Change in Control Repurchase Date" has the meaning assigned
to it in Section 13.1.
"Change in Control Repurchase Price" has the meaning assigned
to it in Section 13.1.
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"Class A Common Stock" means the Class A Common Stock, par
value $0.01 per share, of the Issuer as the same exists at the Closing Date or
as such stock may be reconstituted from time to time.
"Closing Date" means the date (or, if more than one, the
earliest date) of original issuance of the Securities.
"Common Stock" means the Class A Common Stock, the Class B
Common Stock, par value $0.01 per share and the Class C Common Stock, par value
$0.01 per share, of the Issuer as the same exists at the Closing Date or as such
stock may be reconstituted from time to time.
"Conversion Agent" has the meaning assigned to it in Section
2.3.
"Conversion Price" means the Issue Price of the Securities
convertible into one share of Class A Common Stock, subject to adjustment in
accordance with Section 12.4.
"Corporate Trust Office" means the office of the Trustee at
which the corporate trust business of the Trustee shall, at any particular time,
be principally administered, which office is, at the date as of which this
Indenture is dated, located at 101 Barclay Street, 21W, New York, NY 10286.
"Date of Conversion" has the meaning assigned to it in Section
12.2.
"Depositary" means with respect to Securities, a clearing
agency that is registered as such under the Exchange Act and is designated by
the Issuer to act as Depositary for such Securities (or any successor securities
clearing agency so registered.)
"Disposition" has the meaning assigned to it in Section 8.1.
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"DTC" means The Depository Trust Company, a New York
corporation.
"Equity Interests" means Capital Stock and all warrants,
options or other rights to acquire Capital Stock (including any securities that
is convertible into, or exchangeable for, Capital Stock).
"Event of Default" means any event or condition specified as
such in Section 4.1.
"Excess Amount" has the meaning assigned to it in Section 3.6.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Global Security" means a Security that is registered in the
security register kept by the Registrar in the name of a Depositary or a nominee
thereof.
"Holder", "Holder of Securities", "Securityholder" or other
similar terms mean in the case of any Security, the Person in whose name such
Security is registered in the security register kept by the Registrar for that
purpose in accordance with the terms hereof.
"Immediate Family Member" means, with respect to any
individual, such individual's spouse (past or current), descendants (natural or
adoptive, of the whole or half blood) of the parents of such individual, such
individual's grandparents and parents (natural or adoptive), and the
grandparents, parents and descendants of parents (natural or adoptive, of the
whole or half blood) of such individual's spouse (past or current).
"Indenture" means this instrument as originally executed and
delivered or, if amended or supplemented as herein provided, as so amended or
supplemented.
"Issue Price" means, in connection with the original issuance
of a Security, the initial issue price per
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$1,000 principal amount at maturity at which the Security is sold as set forth
on the face of the Security.
"Issuer" means American Tower Corporation, a Delaware
corporation, and, subject to Article Eight, its successors and assigns.
"Issuer Notice" has the meaning assigned to it in Section
13.2.
"Issuer Order" means a written statement, request or order of
the Issuer which is signed in its name by its Chairman of the Board of
Directors, its Chief Executive Officer, its President, a Chief Operating
Officer, a Vice President, or its Chief Financial Officer, and, without
duplication, by its Treasurer, an Assistant Treasurer, its Controller, its
Secretary or an Assistant Secretary, of the Issuer, and delivered to the
Trustee.
"Issuer Repurchase Notice" has the meaning assigned to it in
Section 14.5.
"Issuer Repurchase Notice Date" has the meaning assigned to it
in Section 14.3.
"Last Sale Price" on any day means the last sale price of the
Class A Common Stock as reported on the composite tape for New York Stock
Exchange listed stocks (or if not listed or admitted to trading on such
exchange, then on the principal national securities exchange on which the Class
A Common Stock is listed or admitted to trading, or, if not listed or admitted
to trading on any national securities exchange, on NASDAQ or a similar
organization if NASDAQ is no longer reporting information) on such day or, if no
such sale takes place on such day, the last sale price for such day shall be the
average of the closing bid and asked prices regular way on the New York Stock
Exchange (or, if not listed or admitted to trading on such exchange, then on the
principal national securities exchange on which the Class A Common Stock is
listed or admitted to trading, or, if not listed or admitted to trading on any
national
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securities exchange, on NASDAQ or a similar organization if NASDAQ is no longer
reporting information) on such day.
"NASDAQ" means the National Association of Securities Dealers
Automated Quotations National Market System.
"Officer" means the Chairman of the Board of Directors, the
Chief Executive Officer, the President, a Chief Operating Officer, a Vice
President, the Chief Financial Officer, the Treasurer, an Assistant Treasurer,
the Controller, the Secretary or an Assistant Secretary, of the Issuer.
"Officers' Certificate" means a certificate signed by the
Chairman of the Board of Directors, the Chief Executive Officer, the President,
a Chief Operating Officer, a Vice President, or the Chief Financial Officer and,
without duplication, by the Treasurer, an Assistant Treasurer, Controller, the
Secretary or an Assistant Secretary, of the Issuer, and delivered to the
Trustee. Each such certificate shall include the statements provided for in
Section 10.5, if and to the extent required hereby.
"Opinion of Counsel" means a written opinion, in form and
substance reasonably satisfactory to the Trustee, of counsel, who may be counsel
to the Issuer and who shall be acceptable to the Trustee. Each such opinion
shall include the statements provided for in Section 10.5, if and to the extent
required hereby.
"Original Issue Discount" of any Security means the difference
between the Issue Price and the principal amount at maturity of the Security as
set forth on the face of the Security. For purposes of this Indenture and the
Securities, accrual of Original Issue Discount shall be calculated on the basis
of a 360-day year of twelve 30-day months, compounded semi-annually.
"Outstanding", when used with reference to Securities, shall,
subject to the provision of Section 6.4, mean, as of any particular time, all
Securities authenti-
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cated and delivered by the Trustee under this Indenture, except
(a) Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(b) Securities, or portions thereof, for the payment or
redemption of which moneys in the necessary amount shall have been
deposited in trust with the Trustee or with any Paying Agent (other
than the Issuer) or shall have been set aside, segregated and held in
trust by the Issuer (if the Issuer shall act as its own Paying Agent),
provided that if such Securities are to be redeemed prior to the
maturity thereof, notice of such redemption shall have been given as
herein provided, or provision satisfactory to the Trustee shall have
been made for giving such notice; and
(c) Securities in substitution for which other Securities
shall have been authenticated and delivered, or which shall have been
paid, pursuant to the terms of Section 2.7 (unless proof satisfactory
to the Trustee is presented that any of such Securities is held by a
Person in whose hands such Security is a legal, valid and binding
obligation of the Issuer), Securities converted into Class A Common
Stock pursuant hereto and Securities not deemed Outstanding pursuant to
and for the purposes of the last sentence of Section 11.2.
"Paying Agent" has the meaning assigned to it in Section 2.3.
"Permitted Owner" has the meaning assigned to it
in Section 13.3.
"Person" means any individual, corporation, part nership,
limited liability company, joint venture, association, joint stock company,
trust, unincorporated organization or government or any agency or political
subdivision thereof.
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"principal" wherever used with reference to the Securities or
any Security or any portion thereof shall be deemed to include "and premium, if
any", accrued Original Issue Discount and Issue Price whether or not so
specified, except that "principal amount" shall mean principal amount at
maturity of the Securities whether or not so specified. (Reference is also made
to Sections 13.2(c) and 14.9.)
"Principal Stockholders" has the meaning assigned to it in
Section 13.3.
"Proceeding" has the meaning assigned to it in Section 12.2.
"Redemption Date", has the meaning assigned to it in Section
11.2.
"Redemption Price", when used with respect to any Security to
be redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Registrar" has the meaning assigned to it in Section 2.3.
"Registration Rights Agreement" means the Registration Rights
Agreement, dated as of October 4, 1999, among the Issuer and the initial
purchasers named therein.
"Related Party" with respect to any individual means (i) any
Immediate Family Member of such individual or (ii) any Person, the
beneficiaries, stockholders, partners, owners or Persons beneficially holding an
80% or more controlling interest of which consist of such individual or an
Immediate Family Member.
"Repurchase Date" has the meaning assigned to it in Section
14.1.
"Repurchase Price" has the meaning assigned to it in Section
14.1.
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"Responsible Officer", when used with respect to the Trustee
means any officer within the corporate trust department of the Trustee,
including any vice president, assistant vice president, assistant secretary,
assistant treasurer, trust officer or any other officer of the Trustee
customarily performing corporate trust functions similar to those performed by
the Persons who at the time shall be such officers, respectively, or to whom any
corporate trust matter is referred because of such Person's knowledge of and
familiarity with the particular subject and who shall have direct responsibility
for the administration of this Indenture.
"Restricted Global Security" has the meaning assigned to it in
Section 2.1.
"Restricted Security" means any Security issued in exchange
for an interest in the Restricted Global Security until such time as the
Restricted Security legend contemplated in Section 2.14 need not be provided on
the Security.
"SEC" means the Securities and Exchange Commission or any
successor agency.
"Security" or "Securities" has the meaning stated in the first
recital of this Indenture and more particularly means any securities
authenticated and delivered under this Indenture.
"Securities Act" means the Securities Act of 1933, as amended.
"Subsidiary" means, with respect to any Person, any
corporation, association or other business entity of which more than 50% of the
total voting power of Equity Interests entitled (without regard to the
occurrence of any contingency) to vote in the election of directors, managers or
trustees or other governing body thereof is at the time owned or controlled by
such Person (regardless of whether such Equity Interests are owned directly or
through one or
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more other Subsidiaries of such Person or a combination thereof).
"Surviving Person" means, with respect to any Person involved
in or that makes any Disposition, the Person formed by or surviving such
Disposition or the Person to which such Disposition is made.
"TIA" (except as otherwise provided in Sections 7.1 and 7.2)
means the Trust Indenture Act of 1939 as in force at the date as of which this
Indenture was originally issued.
"Trading Day" means each Monday, Tuesday, Wednesday, Thursday
and Friday, other than any day on which securities are not traded on the
applicable securities exchange or in the applicable securities market.
"Trustee" means the entity identified as "Trustee" in the
first paragraph hereof and, subject to the provisions of Article Five, shall
also include any successor trustee. "Trustee" shall also mean or include each
Person who is then a trustee hereunder if at any time there is more than one
such Person.
"U.S. Government Obligations" means direct obliga tions of the
United States of America, backed by its full faith and credit.
ARTICLE TWO
SECURITIES
SECTION 2.1 Form and Dating. The Securities and the Trustee's
certificate of authentication shall be substantially in the form of Exhibit A
(including the legends appearing thereon), the terms of which are incorporated
in and made a part of this Indenture. The Securities may have notations, legends
or endorsements required by law (including the Internal Revenue Code of 1986, as
amended), securities exchange (including NASDAQ)
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rules, agreements to which the Issuer is subject or usage, including, if
required by Section 2.13, the legend contem plated thereby. The Issuer shall
approve the form of the Securities and any notation, legend or endorsement on
them. Each Security shall be dated the date of its authentication.
Upon their original issuance, Securities shall be issued in
the form of one or more Global Securities without interest coupons and shall be
registered in the name of DTC, as Depositary, or its nominee and deposited with
the Trustee, as custodian for DTC, for credit by DTC to the respective accounts
of beneficial owners of the Securities represented thereby (or such other
accounts as they may direct). Such Global Security or Securities are
collectively herein called the "Restricted Global Security". The Restricted
Global Security and any Restricted Security shall bear a different CUSIP or
other identifying number from any Security that is not a Restricted Global
Security or Restricted Security.
SECTION 2.2 Execution and Authentication. Two Officers shall
sign the Securities for the Issuer by manual or facsimile signature. The
Issuer's seal shall be reproduced on the Securities.
If an Officer whose signature is on a Security no longer holds
that office at the time the Trustee authenticates the Security, the Security
shall be valid nevertheless.
A security shall not be valid until the Trustee manually signs
the certificate of authentication on the Security. The signature of the Trustee
shall be conclusive evidence that the Security has been authenticated under this
Indenture.
The Trustee shall authenticate Securities for original issue
in the aggregate principal amount of $425,500,000 upon an Issuer Order;
provided, however, that if the Issuer sells any Securities pursuant to the
option in the Purchase Agreement, dated September 28, 1999, between the Issuer
and the initial purchasers named therein, then
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the Trustee shall authenticate Securities for original issue in the aggregate
principal amount of up to $468,050,000 upon an Issuer Order. The Issuer Order
shall specify the amount of Securities to be authenticated and the date on which
the original issue of Securities is to be authenticated. The aggregate principal
amount of Securities outstanding at any time may not exceed the amount set forth
in the previous sentence except as provided in Section 2.7.
The Trustee's authentication of Securities pursuant to the
next preceding paragraph shall be conditioned upon receipt of each of the
following in form and substance reasonably satisfactory to the Trustee on or
prior to the Closing Date:
A. An Officer's Certificate to the effect that:
(1) All conditions required to be satisfied under
this Indenture for the issuance of the Securities have been so
satisfied on or prior to the Closing Date; and
(2) No Event of Default shall have occurred and be
continuing.
B. An Opinion of Counsel to the effect that:
(1) The execution and delivery of the Indenture, the
issuance of the Securities and the fulfillment of the terms
herein and therein contemplated will not conflict with the
charter or bylaws of the Issuer, or constitute a breach of or
default under any material agreement, indenture, evidence of
indebtedness, mortgage, deed of trust or other material
agreement or instrument known to such counsel to which the
Issuer is a party or by which it is bound, or any law,
administrative regulation, rule, judgment, order or decree
known to such counsel to be applicable to the Issuer or any of
its properties;
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(2) The Indenture has been duly authorized by the
Issuer, executed and delivered by the Issuer, and is a legal,
valid and binding agree ment of the Issuer enforceable in
accordance with its terms, except as such enforceability may
be limited by bankruptcy, insolvency, reorganization,
receivership, moratorium and similar laws affect ing the
rights and remedies of creditors and obligations of debtors
generally and by the effect of general principles of equity,
whether applied by a court of law or equity;
(3) All legally required proceedings by the Issuer in
connection with the authorization and issuances of the
Securities have been duly taken, and all orders, consents or
other authorizations or approvals of any public board or body
legally required for the validity of the Securities have been
obtained; and
(4) The Securities, when executed and authenticated
in accordance with the terms of this Indenture and delivered
upon payment therefor, will be legal, valid and binding
obligations of the Issuer enforceable in accordance with their
terms, except as such enforceability may be limited by
bankruptcy, insolvency, reorganization, receivership,
moratorium and similar laws affecting the rights and remedies
of creditors and obligations of debtors generally and by the
effect of general principles of equity, whether applied by a
court of law or equity.
The Trustee may appoint an authenticating agent acceptable to
the Issuer to authenticate Securities. Unless limited by the term of such
appointment, an authenticating agent may authenticate Securities whenever the
Trustee may do so. Each reference in this Indenture to authentication by the
Trustee includes authentication by such agent. An authenticating agent has the
same rights as an Agent to deal with the Issuer or an Affiliate of the Issuer.
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The Securities shall be issuable only in regis tered form
without coupons and only in denominations of $1,000 principal amount and any
integral multiple thereof.
SECTION 2.3 Registrar, Paying Agent and Conver sion Agent. The
Issuer shall maintain in The Borough of Manhattan in The City of New York, New
York, an office or agency where Securities may be presented for registration of
transfer or for exchange ("Registrar"), an office or agency where Securities may
presented for payment and repurchase ("Paying Agent"), an office or agency where
Securities may be presented for conversion ("Conversion Agent") and an office or
agency where notices and demands to or upon the Issuer in respect of the
Securities and this Indenture may be served. The Registrar shall keep a register
of the Securities and of their transfer and exchange. The Issuer may appoint one
or more co-Registrars, one or more additional Paying Agents and one or more
additional Conversion Agents, which may be inside or outside The Borough of
Manhattan. The term "Registrar" includes any co-Registrar, the term "Paying
Agent" includes any additional Paying Agent and the term "Conversion Agent"
includes any additional Conversion Agent. The Issuer may change any Registrar,
Paying Agent or Conversion Agent without notice to any Holder. If the Issuer
fails to appoint or maintain another person as Registrar, Paying Agent or
Conversion Agent, the Trustee shall act as such. The Issuer or any Affiliate of
the Issuer may act as Registrar or Conversion Agent. Except for purposes of
Article Nine, the Issuer or any Affiliate of the Issuer may act as Paying Agent.
The Issuer shall enter into an appropriate agency agreement
with any Agent not a party to this Indenture. The agreement shall implement the
provisions of this Indenture that relate to such Agent. The Issuer shall
promptly notify the Trustee of the name and address of any Agent not a party to
this Indenture. If the Issuer fails to maintain a Registrar, Paying Agent,
Conversion Agent or agent for service of notices and demands, or fails to give
the foregoing notice, the Trustee shall act as such.
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The Issuer initially appoints the Trustee as Registrar, Paying
Agent, Conversion Agent and agent for service of notices and demands.
SECTION 2.4 Paying Agent to Hold Money in Trust. Not later
than 11:00 a.m., Eastern Standard Time, on each due date of the principal of or
interest on any Securities, the Issuer shall deposit with the Paying Agent a sum
of money in immediately available funds sufficient to pay such principal or
interest so becoming due. Subject to Section 9.2, the Paying Agent shall hold in
trust for the benefit of Securityholders or the Trustee all money held by the
Paying Agent for the payment of principal of or interest on the Securities, and
shall notify the Trustee in writing of any default by the Issuer in making any
such payment. If the Issuer or an Affiliate of the Issuer acts as Paying Agent,
it shall on or before each due date of the principal of or interest on any
Securities segregate the money and hold it as a separate trust fund. The Issuer
at any time may require a Paying Agent to pay all money held by it to the
Trustee, and the Trustee may at any time during the continuance of any default,
upon written request to a Paying Agent, require such Paying Agent to forthwith
pay to the Trustee all sums so held in trust by such Paying Agent. Upon doing
so, the Paying Agent (other than the Issuer) shall have no further liability for
the money.
SECTION 2.5 Holder Lists. The Trustee shall preserve in as
current a form as is reasonably practicable the most recent list available to it
of the names and addresses of the Holders. If the Trustee is not the Registrar,
the Issuer shall promptly furnish to the Trustee on or 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 for
the names and addresses of the Holders.
SECTION 2.6 Transfer and Exchange. When a Security is
presented to the Registrar with a request to register a transfer thereof, the
Registrar shall register the transfer as requested, and, when Securities are
presented to the Registrar with a request to exchange them
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for an equal principal amount of Securities of other authorized denominations,
the Registrar shall make the exchange as requested; provided that 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 Issuer and the Registrar duly executed by the Holder thereof
or his attorney duly authorized in writing. To permit registration of transfers
and exchanges, the Issuer shall execute and the Trustee shall authenticate
Securities at the Issuer's request. The Issuer shall not be required (i) to
issue, register the transfer of or exchange Securities during a period beginning
at the opening of business on a Business Day 15 days before the day of any
selection of Securities for redemption under Section 11.2 and ending at the
close of business on the day of selection, or (ii) to register the transfer of
or exchange any Security so selected for redemption in whole or in part, except
the unredeemed portion of any Security being redeemed in part. Any exchange or
transfer shall be without charge, except that the Issuer may require payment of
a sum sufficient to cover any tax or other governmental charge that may be
imposed in relation thereto, but this provision shall not apply to any exchange
pursuant to Section 7.5 or 11.2. Prior to due presentment for registration of
transfer of any Security, the Trustee, any Agent and the Issuer may deem and
treat the Person in whose name any Security is registered as the absolute owner
of such Security for the purpose of receiving payment of principal of and
interest on such Security and for all other purposes whatsoever, whether or not
such Security is overdue, and none of the Trustee, any Agent or the Issuer shall
be affected by notice to the contrary.
SECTION 2.7 Replacement Securities. If a mutilated Security is
surrendered to the Trustee, or if the Holder of a Security claims that the
Security has been lost, destroyed or wrongfully taken, and neither the Issuer
nor the Trustee has received written notice that such Security has been acquired
by a bona fide purchaser, the Issuer shall issue and the Trustee shall
authenticate a replacement Security if the requirements of Section 8-405 of the
New
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York Uniform Commercial Code, as in effect on the date of this Indenture, are
met, and there shall have been delivered to the Issuer and the Trustee evidence
to their satisfaction of the loss, destruction or theft of any Security if such
is the case. An indemnity bond will be required that is sufficient in the
judgment of the Issuer and the Trustee to protect the Issuer, the Trustee or any
Agent from any loss which any of them may suffer if a Security is replaced. The
Issuer may charge the Holder for its expenses (including the fees and expenses
of the Trustee) in replacing a Security. Every replacement Security is an
additional obligation of the Issuer. The provisions of this Section 2.7 are
exclusive and shall preclude all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Securities.
SECTION 2.8 Outstanding Securities. The Securities Outstanding
at any time are all of the Securities authenticated by the Trustee, except for
those canceled by it, those delivered to it for cancellation and those described
in this Section 2.8 as not Outstanding.
If a Security is replaced pursuant to Section 2.7, it ceases
to be Outstanding until a Responsible Officer of the Trustee actually receives
proof satisfactory to it that the replaced Security is held by a bona fide
purchaser.
If the Paying Agent (other than the Issuer or an Affiliate of
the Issuer) holds on a redemption date or maturity date money sufficient to pay
the principal of and accrued interest on Securities payable on that date, then
on and after that date such Securities cease to be Outstanding and interest on
them ceases to accrue.
Subject to Section 6.4, a Security does not cease to be
Outstanding because the Issuer or an Affiliate of the Issuer holds the Security.
SECTION 2.9 Temporary Securities. Until defini tive Securities
are ready for delivery, the Issuer may prepare and, upon the order of the
Issuer, the Trustee shall authenticate temporary Securities. Temporary
Securities
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shall be substantially in the form of definitive Securities but may have
variations that the Issuer considers appropri ate for temporary Securities.
Without unreasonable delay, the Issuer 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 2.10 Cancellation. The Issuer at any time may deliver
Securities to the Trustee for cancellation. The Registrar, Paying Agent and
Conversion Agent shall forward to the Trustee any Securities surrendered to them
for transfer, exchange, payment or conversion. The Trustee and no one else shall
cancel all Securities surrendered for transfer, exchange, payment, conversion or
cancellation. The Issuer may not issue new Securities to replace Securities it
has paid or delivered to the Trustee for cancellation or which have been
converted. All canceled Securities shall be held by the Trustee and shall be
disposed of in accordance with its customary procedures (and certification of
their cancellation shall be delivered to the Issuer).
SECTION 2.11 Defaulted Interest. If the Issuer defaults in a
payment of interest on the Securities, it shall pay the defaulted interest in
any lawful manner plus, to the extent lawful, interest payable on the defaulted
interest, to the persons who are Holders on a subsequent special record date,
which date shall be at least five Business Days prior to the payment date, in
each case at the rate provided in the Securities and in Section 3.1. The Issuer
shall fix or cause to be fixed each such special record date and payment date.
At least 15 days before a special record date, the Issuer (or the Trustee in the
name of and at the expense of the Issuer) shall forward to the Holders a notice
prepared by the Issuer that states the special record date, the related payment
date and the amount of such interest to be paid.
SECTION 2.12 CUSIP Numbers. The Issuer in issuing the
Securities may use "CUSIP" numbers (if then
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generally in use), and, if so, the Trustee shall use "CUSIP" numbers in notices
of redemption as a convenience to Holders; provided that any such notice may
state that no representation is made as to the correctness of such numbers
either as printed on the Securities or as contained in any notice of redemption
and that reliance may be placed only on the other identification numbers printed
on the Securities, and any such redemption shall not be affected by any defect
in or omission of such numbers. The Company will promptly notify the Trustee of
any change in the "CUSIP" numbers.
SECTION 2.13 Global Securities.
(a) Each Global Security authenticated under this Indenture
shall be registered in the name of the Depositary designated by the Issuer for
such Global Security or a nominee thereof and delivered to such Depositary or a
nominee thereof or custodian therefor, and each such Global Security shall
constitute a single Security for all purposes of this Indenture.
(b) Notwithstanding any other provision in this Indenture, no
Global Security may be exchanged in whole or in part for Securities registered,
and no transfer of a Global Security in whole or in part may be registered, in
the name of any Person other than the Depositary for such Global Security or a
nominee thereof unless (i) such Depositary (A) has notified the Issuer and the
Trustee in writing that it is unwilling or unable to continue as Depositary for
such Global Security or (B) has ceased to be a clearing agency registered as
such under the Exchange Act or announces an intention permanently to cease
business or does in fact do so, (ii) there shall have occurred and be continuing
an Event of Default with respect to such Global Security, or (iii) the Issuer
delivers an Officers' Certificate to the Trustee stating that the Issuer has
determined not to have all the Securities represented by the Global Security.
(c) If any Global Security is to be exchanged for other
Securities or cancelled in whole, it shall be surrendered by or on behalf of the
Depositary or its nominee
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to the Trustee, as Registrar, for exchange or cancellation, as provided in this
Article. If any Global Security is to be exchanged for other Securities or
cancelled in part, or if another Security is to be exchanged in whole or in part
for a beneficial interest in any Global Security, in each case as provided in
this Article, then either (i) such Global Security shall be so surrendered for
exchange or cancellation, as provided in this Article, or (ii) the principal
amount thereof shall be reduced or increased by an amount equal to the portion
thereof to be so exchanged or cancelled, or equal to the principal amount of
such other Security to be so exchanged for a beneficial interest therein, as the
case may be, by means of an appropriate adjustment made on the records of the
Trustee, as Registrar, whereupon the Trustee shall instruct the Depositary or
its authorized representative to make a corresponding adjustment to its records
in accordance with its rules and procedures. Upon any such surrender or
adjustment of a Global Security, the Trustee shall as provided in this Article,
authenticate and make available for delivery any Securities issuable in exchange
for such Global Security (or any portion thereof) to or upon the order of, and
registered in such names as may be directed in writing by, the Depositary or its
authorized representative. Upon the request of the Trustee in connection with
the occurrence of any of the events specified in the preceding paragraph, the
Issuer shall promptly make available to the Trustee a reasonable supply of
Securities that are not in the form of Global Securities. The Trustee shall be
entitled to rely upon any order, direction or request of the Depositary or its
authorized representative which is given or made pursuant to this Article if
such order, direction or request is given or made in accordance with the
Depositary's rules and procedures.
(d) Every Security authenticated and delivered upon
registration of transfer of, or in exchange for or in lieu of, a Global Security
or any portion thereof, whether pursuant to this Article or otherwise, shall be
authenticated and delivered in the form of, and shall be, a registered Global
Security, unless such Security is registered in the name of a Person other than
the Depositary for such Global Security or a nominee thereof, in which case
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such Registered Security shall be authenticated and delivered in definitive,
fully registered form, without interest coupons.
(e) The Depositary or its nominee, as registered owner of a
Global Security, shall be the Holder of such Global Security for all purposes
under the Indenture and the Securities, and owners of beneficial interests in a
Global Security shall hold such interests pursuant to the Depositary's rules and
procedures. Accordingly, any such owner's beneficial interest in a Global
Security will be shown only on, and the transfer of such interest shall be
effected only through, records maintained by the Depositary or its nominee or
its participants and such owners of beneficial interests in a Global Security
will not be considered the owners or holders thereof. Notices given to the
Holders of the Security shall be deemed given if sent to the Depositary. The
Trustee shall have no obligation to the beneficial owners of the Securities.
(f) Upon the transfer of beneficial interests in a Restricted
Global Security under circumstances permitting the removal of the Restricted
Securities legend contemplated in Section 2.14 if the Securities represented by
such beneficial interest were not in the form of a Global Security, such
transferred beneficial interest shall be represented by a beneficial interest in
a Global Security that is not a Restricted Global Security.
SECTION 2.14 Transfer Restrictions. (a) Securities shall be
stamped or otherwise be imprinted with the legends containing the transfer
restrictions set forth on the face of the text of the Securities attached as
Exhibit A hereto. The legends so provided on the face of the text of the
Securities that relate to Restricted Securities and Restricted Global Securities
may be removed from such Security, upon receipt by the Trustee of an Issuer
Order, (i) two years from the later of issuance of the Security or the date such
Security (or any predecessor) was last acquired from an "affiliate" of the
Issuer within the meaning of Rule 144 under the Securities Act, (ii) in
connection with a sale made pursuant to the volume (and
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other restrictions) of Rule 144 under the Securities Act following one year from
such time, or (iii) in connection with any sale in a transaction registered
under the Securities Act, provided that, if the legend is removed and the
Security is subsequently held by such an affiliate of the Issuer, the legend
shall be reinstated.
(b) Each Holder of a Security agrees to indemnify the Issuer and the
Trustee against any liability that may result from the transfer, exchange or
assignment of such Holder's security in violation of any provision of this
Indenture and/or applicable United States Federal or state securities law.
(c) The Trustee shall have no obligation or duty to monitor, determine
or inquire as to compliance with any restrictions on transfer imposed under this
Indenture or under applicable law with respect to any transfer of any interest
in any Security (including any transfers between or among Depositary
participants or beneficial owners of interest in any Global Security) other than
to require delivery of such certificates and other documentation or evidence as
are expressly required by, and to do so if and when expressly required by the
terms of, this Indenture, and to examine the same to determine substantial
compliance as to form with the express requirements hereof.
ARTICLE THREE
COVENANTS
SECTION 3.1 Payment of Principal and Interest. The Issuer
covenants and agrees that it will duly and punctually pay or cause to be paid
the principal of, and interest on, each of the Securities at the place or
places, at the respective times and in the manner provided in the Securities and
this Indenture. Interest on the Securities shall be computed on the basis of a
360-day year of twelve 30-day months. Each instalment of interest on the
Securities may be paid by mailing checks for such interest payable to or upon
the written order of the Holders of
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Securities entitled thereto as they shall appear on the registry books of the
Issuer.
SECTION 3.2 Written Statement to Trustee. The Issuer will
deliver to the Trustee, within 120 days after the end of each fiscal year of the
Issuer ending after the date hereof, an Officers' Certificate, stating that in
the course of the performance by the signers of their duties as officers of the
Issuer they would normally have knowledge of any default or non-compliance by
the Issuer in the perfor mance or fulfillment of any covenant, agreement or
condition contained in this Indenture, stating whether or not they have
knowledge of any such default or non-compliance (without regard to any period of
grace or requirement of notice provided hereunder), and, if so, specifying each
such default or non-compliance of which the signers have knowledge and the
nature thereof.
The Issuer shall deliver to the Trustee, as soon as possible and in any
event within five days after the Issuer becomes aware of the occurrence of any
Event of Default or an event which, with notice or the lapse of time or both,
would constitute an Event of Default, an Officers' Certificate setting forth the
details of such Event of Default or default and the action which the Issuer
proposes to take with respect thereto.
SECTION 3.3 Corporate Existence. Subject to Article Eight, the
Issuer will do or cause to be done all things necessary to preserve and keep in
full force and effect its corporate existence, rights and franchises; provided
that the Issuer shall not be required to preserve its corporate existence or any
such right or franchise if the Issuer shall determine that the preservation
thereof is no longer desirable in the conduct of its business and that the loss
thereof is not disadvantageous in any material respect to the Holders of the
Securities.
SECTION 3.4 Reports by the Issuer. The Issuer covenants to
file with the Trustee, within 15 days after the Issuer is required to file the
same with the SEC, copies of the annual reports and of the information,
documents, and
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other reports (or copies of such portions of any of the foregoing as the SEC may
from time to time by rules and regulations prescribe) which the Issuer may be
required to file with the SEC pursuant to Section 13 or Section 15(d) of the
Exchange Act, or if the Issuer is not required to file information, documents,
or reports pursuant to either of such sections, then to file with the Trustee,
in accordance with rules and regulations prescribed from time to time by the
SEC, such of the supplementary and periodic information, documents, and reports
which may be required pursuant to Section 13 of the Exchange Act; or, in respect
of a security listed and registered on a national securities exchange or on
NASDAQ as may be prescribed from time to time in such rules and regulations. At
any time when the Issuer is not subject to Section 13 or 15(d) of the Exchange
Act, upon request of Holders and prospective purchasers of Securities or the
Class A Common Stock issuable upon conversion thereof, the Issuer will promptly
furnish or cause to be furnished to such holders and prospective purchasers,
copies of the information required to be delivered to such holders and
prospective purchasers of such securities pursuant to Rule 144A(d)(4) under the
Securities Act (or any successor provision thereto) in order to permit
compliance with Rule 144A in connection with resales by such holders of such
securities. The Issuer will pay the expenses of printing and distributing to
such holders and prospective purchasers all such 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 Issuer's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
SECTION 3.5 Waiver of Usury Defense. The Issuer covenants (to
the extent that it may lawfully do so) that it shall not assert, plead (as a
defense or otherwise) or in any manner whatsoever claim (and shall actively
resist any attempt to compel it to assert, plead or claim) in any
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action, suit or proceeding that the interest rate on the Securities violates
present or future usury or other laws relating to the interest payable on any
indebtedness and shall not otherwise avail itself (and shall actively resist any
attempt to compel it to avail itself) of the benefits or advantages of any such
laws.
SECTION 3.6 Payment of Excess Cash Dividends. If the Issuer
shall declare and pay cash dividends on its Class A Common Stock in an
annualized per share amount which exceeds the greater of (i) the annualized per
share amount of the immediately preceding cash dividend on its Class A Common
Stock (as adjusted to reflect any of the events listed in Sections 12.4 or 12.5)
and (ii) 15% of the Last Sale Price of the Class A Common Stock as of the
Trading Day immediately preceding the date of declaration of such dividend (the
per share amount of any such per share excess, to the extent of such per share
excess, being herein called an "Excess Amount"), then in any such event the
Holders shall have the right to receive, and the Issuer will pay to each such
Holder, at the time of the payment of such Class A Common Stock dividend, an
amount equal to such Excess Amount (calculated by the Issuer on the basis of the
number of shares of Class A Common Stock that would have been issued to a Holder
upon conversion of the Securities held by such Holder on the record date for the
payment of such dividend) unless the Holder converts and receives such dividend
as a holder of Class A Common Stock. The Issuer shall give the Trustee written
notice of the payment of Excess Amounts to the Holders.
SECTION 3.7 Registration Rights. The Issuer agrees that the
Holders from time to time of Registrable Securities (as defined in the
Registration Rights Agreement) are entitled to the benefits of the Registration
Rights Agreement. Whenever in this Indenture there is mentioned, in any context,
the payment of interest on, or in respect of, any Security, such mention shall
be deemed to include mention of the payment of liquidated damages on Securities
constituting Registrable Securities as contemplated in Section 3 of the
Registration Rights Agreement to the extent that, in such context, such
liquidated damages are, were or
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would be payable in respect thereof pursuant to the provisions of the
Registration Rights Agreement.
SECTION 3.8 Calculation of Original Issue Discount. The Issuer
shall file with the Trustee promptly at the end of each calendar year (i) a
written notice specifying the amount of Original Issue Discount (including daily
rates and accrual periods) accrued on Outstanding Securities as of the end of
such year and (ii) such other specific information relating to such Original
Issue Discount as may then be relevant under the Internal Revenue Code of 1986,
as amended from time to time.
ARTICLE FOUR
REMEDIES OF THE TRUSTEE AND
SECURITYHOLDERS ON EVENT OF DEFAULT
SECTION 4.1 Event of Default Defined; Accelera tion of
Maturity; Waiver of Default. "Event of Default" with respect to Securities where
used herein, means each one of the following events which shall have occurred
and be continuing (whatever the reason for such Event of Default and whether it
shall be voluntary or involuntary or be effected by operation of law or pursuant
to any judgment, decree or order of any court or any order, rule or regulation
of any administrative or governmental body):
(a) default in the payment of any instalment of interest upon
any of the Securities as and when the same shall become due and
payable, and continuance of such default for a period of 30 days; or
(b) default in the payment of all or any part of the principal
of or premium, if any, upon any of the Securities as and when the same
shall become due and payable either at maturity, upon any redemption or
acceleration, by declaration or otherwise; or
(c) failure on the part of the Issuer to observe or perform
any other of the covenants or agreements on
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the part of the Issuer in the Securities or in this Indenture contained
for a period of 60 days after the date on which written notice
specifying such failure, stating that such notice is a "Notice of
Default" hereunder and demanding that the Issuer remedy the same, shall
have been given by registered or certified mail, return receipt
requested, to the Issuer by the Trustee, or to the Issuer and the
Trustee by the Holders of at least 25% in aggregate principal amount of
the Outstanding Securities; or
(d) a court having jurisdiction in the premises shall enter a
decree or order for relief in respect of the Issuer in an involuntary
case or proceeding under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law now or hereafter in
effect, or a decree or order adjudging the Issuer a bankrupt or
insolvent, approving as properly filed a petition seeking
reorganization, assignment, adjustment or composition of, or in respect
of, the Issuer under any applicable Federal or State law or appointing
a receiver, liquidator, assignee, custodian, trustee, sequestrator (or
similar official) of the Issuer or for any substantial part of its
property or ordering the winding up or liquidation of its affairs, and
such decree or order shall remain unstayed and in effect for a period
of 60 consecutive days; or
(e) the Issuer shall commence a voluntary case or proceeding
under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law now or hereafter in effect, or any
other case or proceeding to be adjudicated a bankrupt or insolvent, or
consent to the entry of an order for relief in an involuntary case or
proceeding under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law or to the commencement
of any bankruptcy or insolvency case or proceeding against it, or to
the filing by it of a petition or answer or consent seeking
reorganization or relief under any applicable Federal or State law, or
consent to the filing of such petition or to the appointment or taking
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possession by a receiver, liquidator, assignee, custodian, trustee or
sequestrator (or similar official) of the Issuer or for any substantial
part of its prop erty, or make any general assignment for the benefit
of creditors, or the admission by it in writing of its inability to pay
its debts generally as they become due, or the taking of corporate
action by the Issuer in furtherance of any such action.
If an Event of Default occurs and is continuing with respect
to the Securities, then, and in each and every such case, unless the sum of the
Issue Price plus accrued Original Issue Discount from the Closing Date of all
the Securities shall have already become due and payable, either the Trustee or
the Holders of not less than 25% in aggregate principal amount of the Securities
then Outstanding hereunder, by notice in writing to the Issuer (and to the
Trustee if given by Securityholders), may declare the sum of the Issue Price
plus accrued Original Issue Discount from the Closing Date of all the
Securities, and the interest accrued thereon, to be due and payable immediately,
and upon any such declaration the same shall become immediately due and payable.
This provision, however, is subject to the condition that if, at any time after
the Securities shall have been so declared due and payable, and before any
judgment or decree for the payment of the moneys due shall have been obtained or
entered as hereinafter provided, the Issuer shall pay or shall deposit with the
Trustee a sum sufficient to pay all matured installments of interest upon all
the Securities and the principal of any and all Securities which shall have
become due otherwise than by acceleration (with interest upon such principal
and, to the extent that payment of such interest is enforceable under applicable
law, on overdue installments of interest, at the same rate as the rate of
interest specified in the Securi ties (giving effect to accrual of Original
Issue Discount), to the date of such payment or deposit) and such amount as
shall be sufficient to cover reasonable compensation to the Trustee and each
predecessor Trustee, their respective agents, attorneys and counsel, and all
other expenses and liabilities incurred, and all advances made, by the Trustee
and each predecessor Trustee except as a result of
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negligence or bad faith, and if any and all Events of Default under the
Indenture, other than the non-payment of the interest on and principal of
Securities which shall have become due by acceleration, shall have been cured,
waived or otherwise remedied as provided herein--then and in every such case of
such a cure the Holders of a majority in aggre gate principal amount of the
Securities then Outstanding, by written notice to the Issuer and to the Trustee,
may waive all defaults and rescind and annul such declaration and its
consequences, but no such waiver or rescission and annulment shall extend to or
shall affect any subsequent default or shall impair any right consequent
thereon.
SECTION 4.2 Collection of Indebtedness by Trustee; Trustee May
Prove Debt. The Issuer covenants that (a) in case default shall be made in the
payment of any instalment of interest on any of the Securities when such
interest shall have become due and payable, and such default shall have
continued for a period of 30 days or (b) in case default shall be made in the
payment of all or any part of the principal of or premium, if any, on any of the
Securities when the same shall have become due and payable, whether upon
maturity or upon any redemption or by declaration or otherwise, then upon demand
of the Trustee, the Issuer will pay to the Trustee for the benefit of the
Holders of the Securities the whole amount that then shall have become due and
payable on all such Securities for principal, premium, if any, or interest, as
the case may be (with interest to the date of such payment upon the overdue
principal and, to the extent that payment of such interest is enforceable under
applicable law, on overdue installments of interest at the same rate as the rate
of interest specified in the Securities, giving effect to accrual of Original
Issue Discount); and in addition thereto, such further amount as shall be
sufficient to cover the costs and expenses of collection, including reasonable
compensation to the Trustee and each predecessor Trustee, their respective
agents, attorneys and counsel, and any expense and liabili ties incurred, and
all advances made, by the Trustee and each predecessor Trustee except as a
result of its negligence or bad faith.
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Until such demand is made by the Trustee, the Issuer may pay
the principal of and premium, if any, and interest on the Securities to the
registered Holders, whether or not the Securities be overdue.
In case the Issuer shall fail forthwith to pay such amounts
upon such demand, the Trustee, in its own name and as trustee of an express
trust, shall be entitled and empowered to institute any action or proceedings at
law or in equity for the collection of the sums so due and unpaid, and may
prosecute any such action or proceedings to judgment or final decree, and may
enforce any such judgment or final decree against the Issuer or other obligor
upon the Securi ties and collect in the manner provided by law out of the
property of the Issuer or other obligor upon the Securities, wherever situated,
the moneys adjudged or decreed to be payable.
In case there shall be pending proceedings relative to the
Issuer or any other obligor upon the Securities under Title 11 of the United
States Code or any other applicable Federal or state bankruptcy, insolvency,
reorganization or other similar law, or in case a receiver, assignee or trustee
in bankruptcy or reorganization, liquidator, sequestrator or similar official
shall have been appointed for or taken possession of the Issuer or its property
or such other obligor, or in case of any other comparable judicial proceedings
relative to the Issuer or other obligor upon the Securities, or to the creditors
or property of the Issuer or such other obligor, the Trustee, irrespective of
whether the principal of the Securities shall then be due and payable as therein
expressed or by declaration or otherwise and irrespective of whether the Trustee
shall have made any demand pursuant to the provisions of this Section, shall be
entitled and empowered, by intervention in such proceedings or otherwise:
(a) to file and prove a claim or claims for the whole amount
of principal, premium, if any, and interest owing and unpaid in respect
of the Securities, and to file such other papers or documents as may be
necessary or advisable in order to have the claims of
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the Trustees (including any claim for reasonable compensation to the
Trustee and each predecessor Trustee, and their respective agents,
attorneys and counsel, and for reimbursement of all expenses and
liabilities incurred, and all advances made, by the Trustee and each
predecessor Trustee, except as a result of negligence or bad faith) and
of the Securityholders allowed in any judicial proceedings relative to
the Issuer or other obligor upon the Securities, or to the creditors or
property of the Issuer or such other obligor,
(b) unless prohibited by applicable law and regulations, to
vote on behalf of the Holders of the Securities in any election of a
trustee or a standby trustee in arrangement, reorganization,
liquidation or other bankruptcy or insolvency proceedings or person
performing similar functions in comparable proceedings, and
(c) to collect and receive any moneys or other property
payable or deliverable on any such claims, and to distribute all
amounts received with respect to the claims of the Securityholders and
of the Trustee on their behalf; and any trustee, receiver, or
liquidator, custodian or other similar official is hereby authorized by
each of the Securityholders to make payments to the Trustee, and, in
the event that the Trustee shall consent to the making of payments
directly to the Securityholders, to pay to the Trustee such amounts as
shall be sufficient to cover reasonable compensation to the Trustee,
each predecessor Trustee and their respective agents, attorneys and
counsel, and all other expenses and liabilities incurred, and all
advances made, by the Trustee and each predecessor Trustee except as a
result of negligence or bad faith.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or vote for or accept or adopt on behalf of
any Securityholder any plan of reorganization, arrangement, adjustment or
caption affecting the Securities or the rights of any Holder
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thereof, or to authorize the Trustee to vote in respect of the claim of any
Securityholder in any such proceeding except, as aforesaid, to vote for the
election of a trustee in bankruptcy or similar person.
All rights of action and of asserting claims under this
Indenture, or under any of the Securities, may be prosecuted and enforced by the
Trustee without the possession of any of the Securities or the production
thereof on any trial or other proceedings relative thereto, and any such action
or proceedings instituted by the Trustee shall be brought in its own name as
trustee of an express trust, and any recovery of judgment, subject to the
payment of the expenses, disbursements and compensation of the Trustee, each
predecessor Trustee and their respective agents and attorneys, shall be for the
ratable benefit of the Holders of the Securities.
In any proceedings brought by the Trustee (and also any
proceedings involving the interpretation of any provision of this Indenture to
which the Trustee shall be a party) the Trustee shall be held to represent all
the Holders of the Securities in respect of which such action was taken, and it
shall not be necessary to make any Holders of the Securities parties to any such
proceedings.
SECTION 4.3 Application of Proceeds. Any moneys collected by
the Trustee pursuant to this Article in respect of Securities shall be applied
in the following order at the date or dates fixed by the Trustee and, in case of
the distribution of such moneys on account of principal or interest, upon
presentation of the several Securities and stamping (or otherwise noting)
thereon the payment, or issuing Securities in reduced principal amounts in
exchange for the presented Securities if only partially paid, or upon surrender
thereof if fully paid:
FIRST: To the payment of costs and expenses, including any and
all amounts due the Trustee under Section 5.5;
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SECOND: In case the principal of the Securities shall not have
become and be then due and payable, to the payment of interest on the
Securities in default in the order of the maturity of the installments
of such interest, with interest (to the extent that such interest has
been collected by the Trustee) upon the overdue installments of
interest at the same rate as the rate of interest specified in the
Securities (giving effect to accrual of Original Issue Discount), such
payments to be made ratably to the person entitled thereto, without
discrimination or preference;
THIRD: In case the principal of the Securities shall have
become and shall be then due and payable, to the payment of the whole
amount then owing and unpaid upon all the Securities for principal,
premium, if any, and interest, with interest upon the overdue principal
and premium, if any, and (to the extent that such interest has been
collected by the Trustee) upon overdue installments of interest at the
same rate as the rate of interest specified in the Securities (giving
effect to accrual of Original Issue Discount); and in case such moneys
shall be insufficient to pay in full the whole amount so due and unpaid
upon the Securities, then to the payment of such principal, premium, if
any, and interest, without preference or priority of principal (and
premium, if any) over interest, or of interest over principal (and
premium, if any), or of any instalment of interest over any other
instalment of interest, or of any Security over any other Security,
ratably to the aggregate of such principal, premium, if any, and
accrued and unpaid interest; and
FOURTH: To the payment of the remainder, if any, to the Issuer
or any other person lawfully entitled thereto.
SECTION 4.4 Suits for Enforcement. In case an Event of Default
has occurred, has not been waived and is continuing, the Trustee may in its
discretion proceed to protect and enforce the rights vested in it by this
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Indenture by such appropriate judicial proceedings as the Trustee shall deem
most effectual to protect and enforce any of such rights, either at law or in
equity or in bankruptcy or otherwise, whether for the specific enforcement of
any covenant or agreement contained in this Indenture or in aid of the exercise
of any power granted in this Indenture or to enforce any other legal or
equitable right vested in the Trustee by this Indenture or by law.
SECTION 4.5 Restoration of Rights or Abandonment of
Proceedings. In case the Trustee or any Securityholder shall have proceeded to
enforce any right under this Indenture and such proceedings shall have been
discontinued or abandoned for any reason, or shall have been determined
adversely to the Trustee or to such Securityholder, then and in every such case,
subject to any determination in such proceeding, the Issuer, the Trustee and the
Securityholders shall be restored severally and respectively to their former
positions and rights hereunder, and thereafter all rights, remedies and powers
of the Issuer, the Trustee and the Securityholders shall continue as though no
such proceedings had been taken.
SECTION 4.6 Limitations on Suits by Security holders. No
Holder of any Security shall have any right by virtue or by availing of any
provision of this Indenture to institute any action or proceeding, judicial or
otherwise, at law or in equity or in bankruptcy or otherwise upon or under or
with respect to this Indenture, or for the appoint ment of a trustee, receiver,
liquidator, custodian or other similar official or for any other remedy
hereunder, unless such Holder previously shall have given to the Trustee written
notice of a continuing Event of Default as herein before provided, and unless
also the Holders of not less than 25% in aggregate principal amount of the
Securities then Outstanding shall have made written request upon a Responsible
Officer of the Trustee to institute such action or proceedings in its own name
as trustee hereunder and shall have offered to the Trustee indemnity
satisfactory to it as it may require against the costs, expenses and liabilities
to be incurred therein or thereby and the Trustee for 45 days after its receipt
of such notice,
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request and offer of indemnity shall have failed to institute any such action or
proceedings and no direction inconsistent with such written request shall have
been given to a Responsible Officer of the Trustee pursuant to Section 4.9; it
being understood and intended, and being expressly covenanted by the Holder of
every Security with every other Holder of the Securities and the Trustee, that
no one or more Holders of Securities shall have any right in any manner whatever
by virtue or by availing of any provision of this Indenture to affect, disturb
or prejudice the rights of any other Holder of Securities, or to obtain or seek
to obtain priority over or preference to any other such Holder or to enforce any
right under this Indenture, except in the manner herein provided and for the
equal, ratable and common benefit of all Holders of Securities. For the
protection and enforcement of the provisions of this Section, each and every
Securityholder and the Trustee shall be entitled to such relief as can be given
either at law or in equity.
SECTION 4.7 Unconditional Right of Security holders to Receive
Principal, Premium and Interest, to Convert and to Institute Certain Suits.
Notwithstanding any other provision in this Indenture and any provision of any
Security, the right of any Holder of any Security to receive payment of the
principal of and premium, if any, and inter est on such Security on or after the
respective due dates expressed in such Security (or, in the case of redemption,
on the applicable Redemption Date or Repurchase Date), or to convert such
Security in accordance with Article Twelve, or to institute suit for the
enforcement of any such payment on or after such respective dates, or for the
enforcement of such conversion right, shall not be impaired or affected without
the written consent of such Holder, with a copy thereof to the Trustee.
SECTION 4.8 Powers and Remedies Cumulative; Delay or Omission
Not Waiver of Default. Except as provided in Sections 2.7, no right or remedy
herein conferred upon or reserved to the Trustee or to the Securityholders is
intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by
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law, be cumulative and in addition to every other right and remedy given
hereunder or now or hereafter existing at law or in equity or otherwise. The
assertion or employment of any right or remedy hereunder, or otherwise, shall
not prevent the concurrent assertion or employment of any other appropriate
right or remedy.
No delay or omission of the Trustee or of any Holder of any of
the Securities to exercise any right or power accruing upon any Event of Default
occurring and continuing as aforesaid shall impair any such right or power or
shall be construed to be a waiver of any such Event of Default or an
acquiescence therein; and, subject to Section 4.6, every power and remedy given
by this Indenture or by law to the Trustee or to the Securityholders may be
exercised from time to time, and as often as shall be deemed expedient, by the
Trustee or by the Securityholders, as the case may be.
SECTION 4.9 Control by Securityholders. The Holders of a
majority in aggregate principal amount of the Securities at the time Outstanding
shall have the right to direct in writing the time, method, and place of
conducting any proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred on the Trustee; provided that such written
direction shall not be otherwise than in accordance with law and the provisions
of this Indenture; and provided further that (subject to the provisions of
Section 5.1) the Trustee shall have the right to decline to follow any such
direction if the Trustee, being advised by counsel, shall determine that the
action or proceeding so directed may expose the Trustee to personal liability or
if the Trustee in good faith by its board of directors or the executive
committee thereof shall so determine that the actions or forbearances specified
in or pursuant to such direction would be unduly prejudicial to the interests of
Holders of the Securities not joining in the giving of said direction, it being
understood that (subject to Section 5.1) the Trustee shall have no duty to
ascertain whether or not such actions or forbearances are unduly prejudicial to
such Holders.
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Nothing in this Indenture shall impair the right of the
Trustee in its discretion to take any action deemed proper by the Trustee and
which is not inconsistent with such direction by Securityholders.
SECTION 4.10 Waiver of Past Defaults. Prior to the declaration
of the maturity of the Securities as provided in Section 4.1, the Holders of a
majority in aggregate principal amount of the Securities at the time Outstanding
may on behalf of the Holders of all the Securities waive any past default or
Event of Default hereunder and its consequences, except a default in respect of
a covenant or provision hereof which cannot be modified or amended without the
consent of the Holder of each Security affected (including, without limitation,
the provisions with respect to payment of principal of and premium, if any, and
interest on such Security or with respect to conversion of such Security). A
copy of any such waiver or consent shall be delivered to the Trustee.
Upon any such waiver, such default shall cease to exist and be
deemed to have been cured and not to have occurred, and any Event of Default
arising therefrom shall be deemed to have been cured, and not to have occurred
for every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or Event of Default or impair any right consequent
thereon.
SECTION 4.11 Trustee to Give Notice of Default, But May
Withhold in Certain Circumstances. The Trustee shall, at the Issuer's expense,
transmit to the Holders of Securities, as the names and addresses of such
Holders appear on the registry books, notice by mail of all defaults known to a
Responsible Officer of the Trustee, such notice to be transmitted within 90 days
after the occurrence thereof, unless such defaults shall have been cured before
the giving of such notice (the term "default" or "defaults" for the purposes of
this Section being hereby defined to mean any event or condition which is, or
with notice or lapse of time or both would become, an Event of Default);
provided that, except in the case of default in the payment of the principal of
or premium, if any, or interest on any
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of the Securities, the Trustee shall be protected in withholding such notice if
and so long as the board of directors, the executive committee, or a trust
committee of directors or trustees and/or Responsible Officers of the Trustee in
good faith determines that the withholding of such notice is in the interests of
the Securityholders.
SECTION 4.12 Right of Court to Require Filing of Undertaking
to Pay Costs. All parties to this Indenture agree, and each Holder of any
Security by his acceptance thereof shall be deemed to have agreed, that any
court may in its discretion require, 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, suffered or omitted by it as Trustee, the filing by any party
litigant in such suit other than the Trustee of an undertaking to pay the costs
of such suit, and that such court may in its discretion assess reasonable costs,
including attorneys' fees, against any party litigant in such suit including the
Trustee, having due regard to the merits and good faith of the claims or
defenses made by such party litigant; but the provisions of this Section shall
not apply to any suit instituted by the Trustee, to any suit instituted by any
Securityholder or group of Securityholders holding in the aggregate more than
10% in aggregate principal amount of the Securities at the time Outstanding, or
to any suit instituted by any Securityholder for the enforcement of the payment
of the principal of or interest on any Security on or after the due date
expressed in such Security or for the enforcement of a right to convert any
Security in accordance with Article Twelve.
SECTION 4.13 Waiver of Stay or Extension Laws. The Issuer
covenants (to the extent that it may lawfully do so) that it will not at any
time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any stay or extension law wherever enacted, now or at
any time hereafter in force, which may affect the covenants or the performance
of this Indenture; and the Issuer (to the extent that it may lawfully do so)
hereby expressly waives all benefit or advantage of any such law and covenants
that it will not hinder, delay or impede the
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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 FIVE
CONCERNING THE TRUSTEE
SECTION 5.1 Duties and Responsibilities of the Trustee; During
Default; Prior to Default. With respect to the Holders of Securities issued
hereunder, the Trustee, prior to the occurrence of an Event of Default and after
the curing or waiving of all Events of Default which may have occurred,
undertakes to perform such duties and only such duties as are specifically set
forth in this Indenture. In case an Event of Default with respect to the
Securities has occurred and is continuing (which has not been cured or waived),
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 their exercise, as a
prudent person would exercise or use under the circumstances in the conduct of
such person's own affairs.
No provision of this Indenture shall be construed to relieve
the Trustee from liability for its own negligent action, its own negligent
failure to act or its own wilful misconduct or bad faith, except that
(a) prior to the occurrence of an Event of Default and after
the curing or waiving of all such Events of Default which may have
occurred:
(i) the duties and obligations of the Trustee with
respect to Securities shall be determined solely by the
express provisions of this Indenture, and the Trustee shall
not be liable except for the performance of such duties and
obligations as are specifically set forth in this Indenture,
and no implied covenants or obligations shall be read into
this Indenture against the Trustee; and
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(ii) in the absence of bad faith on the part of the
Trustee, the Trustee may conclusively rely, as to the truth of
the statements and the correct ness of the opinions expressed
therein, upon any resolution, statement, officer's
certificate, or any other certificate, instrument or opinion
furnished to the Trustee and conforming to the requirements of
this Indenture; but in the case of any such statements,
certificates or opinions which by any provision hereof are
specifically required to be furnished to the Trustee, the
Trustee shall be under a duty to examine the same to determine
whether or not they conform to the requirements of this
Indenture;
(b) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer or Responsible Officers of
the Trustee, unless it shall be proved that the Trustee was negligent
in ascertaining the pertinent facts; and
(c) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with the
direction of Holders pursuant to Section 4.9 relating to the time,
method and place of conducting any proceeding for any remedy available
to the Trustee, or exercising any trust or power conferred upon the
Trustee, under this Indenture.
None of the provisions contained in this Indenture shall
require the Trustee to expend or risk its own funds or otherwise incur personal
financial liability in the performance of any of its duties or in the exercise
of any of its rights or powers, if there shall be reasonable ground for
believing that the repayment of such funds or adequate indemnity against such
liability is not reasonably assured to it.
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SECTION 5.2 Certain Rights of the Trustee. Subject to Section
5.1:
(a) the Trustee may conclusively rely and shall be protected
in acting or refraining from acting upon any resolution, Officers'
Certificate or any other certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond, debenture,
note, coupon, security or other paper or document believed by it to be
genuine and to have been signed or presented by the proper party or
parties;
(b) any request, direction, order or demand of the Issuer
mentioned herein shall be sufficiently evidenced by an Officers'
Certificate (unless other evidence in respect thereof be herein
specifically prescribed); and any resolution of the Board of Directors
may be evidenced to the Trustee by a copy thereof certified by the
Secretary or an Assistant Secretary of the Issuer;
(c) the Trustee may consult with counsel of its selection at
the expense of the Issuer and any advice or Opinion of Counsel shall be
full and complete authorization and protection in respect of any action
taken, suffered or omitted to be taken by it hereunder in good faith
and in accordance with such advice or Opinion of Counsel;
(d) the Trustee shall be under no obligation to exercise any
of the trusts or powers vested in it by this Indenture at the request,
order or direction of any of the Securityholders pursuant to the
provisions of this Indenture, unless such Securityholders shall have
offered to the Trustee security or indemnity satisfactory to the
Trustee against the costs, expenses and liabilities which might be
incurred therein or thereby;
(e) the Trustee shall not be liable for any action taken,
suffered or omitted by it in good faith and believed by it to be
authorized or within the
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discretion, rights or powers conferred upon it by this Indenture;
(f) prior to the occurrence of an Event of Default hereunder
and after the curing or waiver of all Events of Default, the Trustee
shall not be bound to make any investigation into the facts or matters
stated in any resolution, certificate, statement, instrument, opinion,
report, notice, request, consent, order, approval, appraisal, bond,
debenture, note, coupon, security, or other paper or document unless
requested in writing so to do by the Holders of not less than a
majority in aggregate principal amount of the Securities then
Outstanding, but a Responsible Officer of the Trustee, in its
discretion, may make such further inquiries or investigation into such
facts or matters as it may see fit, and, if the Trustee shall determine
to make such inquiry or investigation, it shall be entitled to examine
the books, records and premises of the Issuer, personally or by agent
or attorney; provided that, if the payment within a reasonable time to
the Trustee of the costs, expenses or liabilities likely to be incurred
by it in the making of such investigation is, in the opinion of the
Trustee, not reasonably assured to the Trustee by the security afforded
to it by the terms of this Indenture, the Trustee may require indemnity
satisfactory to the Trustee against such expenses or liabilities as a
condition to proceeding; the expenses of every such examination shall
be paid by the Issuer or, if paid by the Trustee or any predecessor
trustee, shall be repaid by the Issuer upon demand;
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys not regularly in its employ and the Trustee
shall not be responsible for any misconduct or negligence on the part
of any such agent or attorney appointed with due care by it hereunder;
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(h) the Trustee shall not be deemed to have notice of any
Default or Event of Default unless a Responsible Officer of the Trustee
has actual knowledge thereof or unless written notice of any event
which is in fact such a default is received by the Trustee at the
Corporate Trust Office of the Trustee, and such notice references the
Securities and this Indenture; and
(i) the rights, privileges, protections, immunities and
benefits given to the Trustee, including, without limitation, its right
to be indemnified, are extended to, and shall be enforceable by, the
Trustee in each of its capacities hereunder, and to each agent,
custodian and other Person employed to act hereunder.
SECTION 5.3 Trustee Not Responsible for Recitals, Disposition
of Securities or Application of Proceeds Thereof. The recitals contained herein
and in the Securi ties, except the Trustee's certificates of authentication,
shall be taken as the statements of the Issuer, and the Trustee assumes no
responsibility for the correctness of the same. The Trustee makes no
representation as to the validity or sufficiency of this Indenture or of the
Securi ties. The Trustee shall not be accountable for the use or application by
the Issuer of any of the Securities or of the proceeds thereof.
SECTION 5.4 Trustee and Agents May Hold Securities;
Collections, etc. The Trustee or any agent of the Issuer or the Trustee, in its
individual or any other capacity, may become the owner or pledgee of Securities
with the same rights it would have if it were not the Trustee or such agent and,
subject to Section 5.8, may otherwise deal with the Issuer and receive, collect,
hold and retain collections from the Issuer with the same rights it would have
if it were not the Trustee or such agent.
SECTION 5.5 Compensation and Indemnification of Trustee and
Its Prior Claim. The Issuer covenants and agrees to pay to the Trustee from time
to time, and the
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Trustee shall be entitled to, such compensation as the Company and the Trustee
shall from time to time agree in writing for all services that the Trustee shall
provide hereunder (which compensation shall not be limited by any provision of
law in regard to the compensation of a trustee of an express trust) and the
Issuer covenants and agrees to pay or reimburse the Trustee and each predecessor
Trustee upon its request for all reasonable expenses, disbursements and advances
incurred or made by or on behalf of it in accordance with any of the provisions
of this Indenture (including the compensation and the expenses and disbursements
of its counsel and of all agents and other persons not regularly in its employ)
except any such expense, disbursement or advance as may arise from its
negligence or bad faith. The Issuer also covenants to indemnify the Trustee and
each predecessor Trustee for, and to hold it harmless against, any loss, damage,
claim, liability or expense including taxes (other than taxes based upon,
measured by or determined by the income of the Trustee), incurred without
negligence or bad faith on its part, arising out of or in connection with the
acceptance or administration of this Indenture or the trusts hereunder and its
duties hereunder, including but not limited to the costs and expenses of
defending itself against or investigating any claim (whether asserted by the
Company, any Holder or any other Person) or liability in connection with the
exercise or performance of any of its powers or duties hereunder. The
obligations of the Issuer under this Section to compensate and indemnify the
Trustee and each predecessor Trustee and to pay or reimburse the Trustee and
each predecessor Trustee for expenses, disbursements and advances shall
constitute additional indebtedness hereunder and shall survive the satisfaction
and discharge of this Indenture. Such additional indebtedness shall be a senior
claim to that of the Securities upon all property and funds held or collected by
the Trustee as such, except funds held in trust for the payment of principal of
or interest on particular Securities, and the Securities are hereby subordinated
to such senior claim. When the Trustee incurs expenses or renders services in
connection with an Event of Default specified in Section 4.1 or in connection
with Article Four hereof, the expenses (including the reasonable fees and
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expenses of its counsel) and the compensation for the service in connection
therewith are intended to constitute expenses of administration under any
bankruptcy law.
SECTION 5.6 Right of Trustee to Rely on Officers' Certificate,
etc. Subject to Sections 5.1 and 5.2, whenever in the administration of the
trusts of this Indenture the Trustee shall deem it necessary or desirable that a
matter be proved or established prior to taking or suffering or omitting any
action hereunder, such matter unless other evidence in respect thereof be herein
specifically prescribed) may, in the absence of negligence or bad faith on the
part of the Trustee, be deemed to be conclusively proved and established by an
Officers' Certificate delivered to the Trustee, and such certificate, in the
absence of negligence or bad faith on the part of the Trustee, shall be full
warrant to the Trustee for any action taken, suffered or omitted by it under the
provisions of this Indenture upon the faith thereof.
SECTION 5.7 Persons Eligible for Appointment as Trustee. The
Trustee hereunder shall at all times be a corporation organized and doing
business under the laws of the United States of America or of any State or the
District of Columbia. The Trustee and its direct parent shall at all times have
a combined capital and surplus of at least $50,000,000, and which is authorized
under such laws to exercise corporate trust powers and is subject to supervision
or examination by Federal, State or District of Columbia authority. If such
corporation publishes reports of condition at least annually, pursuant to law or
to the requirements of the aforesaid supervising or examining authority, then
for the purposes of this Section, the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published. In case at any time the
Trustee shall cease to be eligible in accordance with the provisions of this
Section, the Trustee shall resign immediately in the manner and with the effect
specified in Section 5.8.
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The provisions of this Section 5.7 are in furtherance of and
subject to Section 310(a) of the TIA.
SECTION 5.8 Resignation and Removal; Appointment of Successor
Trustee. (a) The Trustee may at any time resign by giving written notice of
resignation to the Issuer. Upon receiving such notice of resignation, the Issuer
shall promptly appoint a successor trustee by written instrument in duplicate,
executed by authority of the Board of Directors, one copy of each instrument
shall be delivered to the resigning Trustee and one copy to the successor
trustee. If no successor trustee shall have been so appointed and have accepted
appointment within 30 days after the giving of such notice of resignation, the
resigning trustee may petition any court of competent jurisdiction for the
appointment of a successor trustee, or any Security holder who has been a bona
fide Holder of a Security or Securities for at least six months may, subject to
the provisions of Section 4.12, on behalf of himself and all others similarly
situated, petition any such court for the appointment of a successor trustee at
the expense of the Issuer. Such court may thereupon, after such notice, if any,
as it may deem proper and prescribe, appoint a successor trustee.
(b) If at any time any of the following shall occur:
(i) the Trustee shall fail to comply with the pro visions of
Section 310(b) of the TIA after written request therefor by the Issuer
or by any Securityholder who has been a bona fide Holder of a Security
or Securities for at least six months; or
(ii) the Trustee shall cease to be eligible in accordance with
the provisions of Section 5.7 and shall fail to resign after written
request therefor by the Issuer or by any Securityholders;
(iii) the Trustee shall became incapable of acting, or shall
be adjudged a bankrupt or insolvent, or a receiver or liquidator of the
Trustee or of its property shall be appointed, or any public officer
shall take charge or control of the Trustee or of its
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property or affairs for the purpose of rehabilitation, conservation or
liquidation;
then, in any such case, the Issuer may remove the Trustee and appoint a
successor trustee by written instrument, in duplicate, executed by order of the
Board of Directors of the Issuer, one copy of which instrument shall be
delivered to the Trustee so removed and one copy to the successor trustee, or
subject to the provisions of Section 4.12, any Securityholder who has been a
bona fide Holder of a Security or Securities for at least six months may on
behalf of himself and all others similarly situated, petition any court of
competent jurisdiction for the removal of the Trustee and the appointment of a
successor trustee. Such court may thereupon, after such notice, if any, as it
may deem proper and prescribe, remove the Trustee and appoint a successor
trustee.
(c) The Holders of a majority in aggregate principal amount of
the Securities at the time Outstanding may at any time remove the Trustee and
appoint a successor trustee by delivering to the Trustee so removed, to the
successor trustee so appointed and to the Issuer the evidence provided for in
Section 6.1 of the action in that regard taken by the Securityholders.
(d) Any resignation or removal of the Trustee and any
appointment of a successor trustee pursuant to any of the provisions of this
Section 5.8 shall become effective upon acceptance of appointment by the
successor trustee as provided in Section 5.9.
(e) The Issuer shall give notice of each resigna tion and each
removal of the Trustee and each appointment of a successor trustee by mailing
written notice of such event by first-class mail, postage prepaid, to the
Holders of Securities affected as their names and addresses appear in the
Security register. Each notice shall include the name of the successor trustee
and the address of its principal corporate trust office.
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SECTION 5.9 Acceptance of Appointment by Succes sor Trustee.
Any successor trustee appointed as provided in Section 5.8 shall execute and
deliver to the Issuer and to its predecessor trustee an instrument accepting
such appointment hereunder, and thereupon the resignation or removal of the
predecessor trustee shall become effective and such successor trustee, without
any further act, deed or conveyance, shall become vested with all rights,
powers, duties and obligations of its predecessor hereunder, with like effect as
if originally named as trustee herein; but, nevertheless, on the written request
of the Issuer or of the successor trustee, upon payment of its charges then
unpaid, the trustee ceasing to act shall, subject to Section 9.4, pay over to
the successor trustee all moneys at the time held by it hereunder and shall
execute and deliver an instrument prepared by the Issuer transferring to such
successor trustee all such rights, powers, duties and obligations. Upon request
of any such successor trustee, the Issuer shall execute any and all instruments
in writing for more fully and certainly vesting in and confirming to such
successor trustee all such rights and powers. Any trustee ceasing to act shall,
nevertheless, retain a prior claim upon all property or funds held or collected
by such trustee to secure any amounts then due it pursuant to the provisions of
Section 5.5.
Upon acceptance of appointment by a successor trustee as
provided in this Section 5.9, the Issuer shall mail notice thereof by
first-class mail to the Holders of Securities at their last addresses as they
shall appear in the Security register. If the acceptance of appointment is
substantially contemporaneous with the resignation, then the notice called for
by the preceding sentence may be combined with the notice called for by Section
5.8. If the Issuer fails to mail such notice within 10 days after acceptance of
appointment by the successor trustee, the successor trustee shall cause such
notice to be mailed at the expense of the Issuer.
SECTION 5.10 Merger, Conversion, Consolidation or Succession
to Business of Trustee. Any corporation into which the Trustee may be merged or
converted or with which
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it may be consolidated, or any corporation resulting from any merger, conversion
or consolidation to which the Trustee shall be a party, or any corporation
succeeding to the cor porate trust business of the Trustee, shall be the
successor of the Trustee hereunder without the execution or filing of any paper
or any further act on the part of any of the parties hereto, anything herein to
the contrary notwithstanding; provided that such corporation shall be qualified
under the provisions of Section 310(b) of the TIA and eligible under the
provisions of Section 5.7.
In case at the time such successor to the Trustee shall
succeed to the trusts created by this Indenture any of the Securities shall have
been authenticated but not delivered, any such successor to the Trustee may
adopt the certificate of authentication of any predecessor trustee and deliver
such Securities so authenticated; and, in case at that time any of the
Securities shall not have been authen ticated, any successor to the Trustee may
authenticate such Securities either in the name of any predecessor hereunder or
in the name of the successor trustee; and in all such cases such certificate
shall have the full force which it is anywhere in the Securities or in this
Indenture provided that the certificate of the Trustee shall have; provided that
the right to adopt the certificate of authentication of any predecessor trustee
or to authenticate Securities of any series in the name of any predecessor
trustee shall apply only to its successor or successors by merger, conversion or
consolidation.
ARTICLE SIX
CONCERNING THE SECURITYHOLDERS
SECTION 6.1 Evidence of Action Taken by Security holders. Any
request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be given or taken by Securityholders may be
embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such Securityholders in person or by an agent duly appointed in
writing; and,
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except as herein otherwise expressly provided, such action shall become
effective when such instrument or instruments are delivered to the Trustee.
Proof of execution of any such instrument or of a writing appointing any such
agent shall be sufficient for any purpose of this Indenture and (subject to
Sections 5.1 and 5.2) conclusive in favor of the Trustee and the Issuer, if made
in the manner provided in this Article.
SECTION 6.2 Proof of Execution of Instruments and of Holding
of Securities. Subject to Sections 5.1 and 5.2, the fact and date of the
execution of any instrument by any Securityholder or his agent or proxy, or the
authority of such an agent or proxy to execute such an instrument may be proved
(i) by the affidavit of a witness of such execution, (ii) by a certificate of a
notary public (or other officer authorized by law to take acknowledgments of
deeds) as to such execution, or (iii) in accordance with such reasonable rules
and regulations as may be prescribed by the Trustee or in such manner as shall
be reasonably satisfactory to the Trustee. The holding of Securities shall be
proved by the Security register or by a certificate of the registrar thereof.
SECTION 6.3 Holders to Be Treated as Owners. Prior to due
presentment of a Security for registration of transfer, the Issuer, the Trustee,
any Agent and any agent of the Issuer or the Trustee may deem and treat the
person in whose name any Security shall be registered upon the Security register
as the absolute owner of such Security (whether or not such Security shall be
overdue and notwithstanding any notation of ownership or other writing thereon)
for the purpose of receiving payment of or on account of the principal of and,
subject to the provisions of this Indenture, interest on such Security and for
all other purposes; and neither the Issuer nor the Trustee nor any Agent or
agent of the Issuer or the Trustee shall be affected by any notice to the
contrary. All such payments so made to any such person, or upon his order, shall
be valid, and, to the extent of the sum or sums so paid, effectual to satisfy
and discharge the liability for moneys payable upon any such Security.
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SECTION 6.4 Securities Owned by Issuer Deemed Not Outstanding.
In determining whether the Holders of the requisite principal amount of
Outstanding Securities have concurred in any direction, consent or waiver under
this Indenture, Securities which are owned by the Issuer or any other obligor on
the Securities or any Affiliate of the Issuer or of such other obligor shall be
disregarded and deemed not to be Outstanding for the purpose of any such
determination, except that for the purpose of determining whether the Trustee
shall be protected in relying on any such direction, consent or waiver only
Securities which the Trustee knows are so owned shall be so disregarded. Securi
ties so owned which have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the Trustee in
writing the pledgee's right so to act with respect to such Securities and that
the pledgee is not the Issuer or any other obligor upon the Securities or any
Affiliate of the Issuer or of such other obligor. In case of a dispute as to
such right, the advice of counsel shall be full protection in respect of any
decision made by the Trustee in accordance with such advice. Upon request of the
Trustee, the Issuer shall furnish to the Trustee promptly an Officers'
Certificate listing and identifying all Securities, if any, known by the Issuer
to be owned or held by or for the account of any of the above-described Persons;
and, subject to Sections 5.1 and 5.2, the Trustee shall be entitled to accept
such Officers' Certificate as conclusive evidence of the facts therein set forth
and of the fact that all Securities not listed therein are Outstanding for the
purpose of any such determination.
SECTION 6.5 Right of Revocation of Action Taken. At any time
prior to (but not after) the evidencing to the Trustee, as provided in Section
6.1, of the taking of any action by the Holders of the percentage in aggregate
principal amount of the Securities specified in this Indenture in connection
with such action, any Holder of a Security the serial number of which is shown
by the evidence to be included among the serial numbers of the Securities the
Holders of which have consented to such action may, by filing written notice at
the Corporate Trust Office and upon proof of holding as provided in this
Article, revoke such
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action so far as concerns such Security. Except as afore said any such action
taken by the Holder of any Security shall be conclusive and binding upon such
Holder and upon all future Holders and owners of such Security and of any
Securities issued in exchange or substitution therefor or on registration or
transfer thereof, irrespective of whether or not any notation in regard thereto
is made upon any such Security. Any action taken by the Holders of the
percentage in aggregate principal amount of the Securities specified in this
Indenture in connection with such action shall be conclusively binding upon the
Issuer, the Trustee and the Holders of all the Securities.
SECTION 6.6 Record Date for Consents and Waivers. The Issuer
may, but shall not be obligated to, direct the Trustee to establish a record
date for the purpose of determining the Persons entitled to (i) waive any past
default with respect to the Securities in accordance with Section 4.10, (ii)
consent to any supplemental indenture in accordance with Section 7.2 or (iii)
waive compliance with any term, condition or provision of any covenant hereunder
(if the Indenture should expressly provide for such waiver). If a record date is
fixed, the Holders of Securities on such record date, or their duly designated
proxies, and any such Persons, shall be entitled to waive any such past default,
consent to any such supplemental indenture or waive compliance with any such
term, condition or provision, whether or not such Holder remains a Holder after
such record date; provided, however, that unless such waiver or consent is
obtained from the Holders, or duly designated proxies, of the requisite
principal amount of Outstanding Securities prior to the date which is the 90th
day after such record date, any such waiver or consent previously given shall
automatically and without further action by any Holder be cancelled and of no
further effect.
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ARTICLE SEVEN
SUPPLEMENTAL INDENTURES
SECTION 7.1 Supplemental Indentures Without Consent of
Securityholders. The Issuer, when authorized by a resolution of its Board of
Directors, and the Trustee may from time to time and at any time enter into an
indenture or indentures supplemental hereto (which shall conform to the
provisions of the TIA as in force at the date of the execution thereof) for one
or more of the following purposes:
(a) to convey, transfer, assign, mortgage or pledge to the
Trustee as security for the Securities any property or assets;
(b) to evidence the succession of another corporation to the
Issuer, or successive successions, and the assumption by the successor
corporation of the covenants, agreements and obligations of the Issuer
pursuant to Article Eight;
(c) to add to the covenants of the Issuer such further
covenants, restrictions, conditions or provisions (including without
limitation provisions necessary or desirable to qualify this Indenture
under the TIA) as its Board of Directors and the Trustee shall consider
to be for the protection or benefit of the Holders of Securities, and
to make the occurrence, or the occurrence and continuance, of a default
in any such additional covenants, restrictions, conditions or
provisions an Event of Default permitting the enforcement of all or any
of the several remedies provided in this Indenture as herein set forth;
provided that in respect of any such additional covenant, restriction,
condition or provision such supplemental indenture may provide for a
particular period of grace after default (which period may be shorter
or longer than that allowed in the case of other defaults) or may
provide for an immediate enforcement upon such an Event of Default or
may limit
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the remedies available to the Trustee upon such an Event of Default or
may limit the right of the Holders of a majority in aggregate principal
amount of the Securities to waive such an Event of Default;
(d) to cure any ambiguity or to correct or supplement any
provision contained herein or in any supplemental indenture which may
be defective or inconsistent with any other provision contained herein
or in any supplemental indenture or to make such other provision in
regard to matters or questions arising under this Indenture or under
any supplemental indenture as the Board of Directors may deem necessary
or desirable, provided that no such action shall adversely affect the
interests of the Holders of the Securities;
(e) to provide for adjustment of conversion rights pursuant to
Section 12.5; or
(f) to evidence the removal or resignation of the Trustee and
the appointment of a successor Trustee or Trustees pursuant to Article
Five.
The Trustee is hereby authorized to join in the execution of
any such supplemental indenture, to make any further appropriate agreements and
stipulations, which may be therein contained, and to accept the conveyance,
transfer, assignment, mortgage or pledge of any property thereunder, but the
Trustee shall not be obligated to enter into any such supplemental indenture
which affects adversely the Trustee's own rights, duties, immunities or
liabilities under this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of
this Section 7.1 may be executed without the consent of the Holders of any of
the Securities at the time Outstanding, notwithstanding any of the provisions of
Section 7.2.
SECTION 7.2 Supplemental Indentures with Consent of
Securityholders. With the consent (evidenced as provided
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in Article Six) of the Holders of not less than a majority in aggregate
principal amount of the Securities at the time Outstanding, the Issuer, when
authorized by a resolution of its Board of Directors, and the Trustee may, from
time to time and at any time, enter into an indenture or indentures supplemental
hereto (which shall conform to the provisions of the TIA as in force at the date
of execution thereof) for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of any
supplemental indenture or of modifying in any manner the rights of the Holders
of the Securities; provided that no such supplemental indenture shall (a) extend
the final maturity of any Security, or reduce the principal amount thereof or
premium, if any, thereon, or reduce the rate or extend the time of payment of
interest thereon, or any premium payable upon the redemption thereof, or change
the rate of accrual or extend the time of payment in connection with Original
Issue Discount thereon, or change the place of payment where, or the coin or
currency in which, any principal, premium or interest is payable, or reduce or
alter the method of calculation of any amount payable on redemption, repurchase
or repayment thereof (or the time at which any such redemption, repurchase or
repayment may be made), or impair or adversely affect the right of any
Securityholder to institute suit for the payment or conversion thereof or
adversely affect the right to convert the Securities in accordance with Article
Twelve, in each case, without the consent of the Holder of each Security so
affected; provided no consent of any Holder of any Security shall be necessary
under this Section 7.2 to permit the Trustee and the Issuer to execute
supplemental indentures pursuant to Section 7.1(e) and Section 12.5 of this
Indenture; or (b) reduce the aforesaid percentage in principal amount of
Outstanding Securities, the consent of the Holders of which is required for any
such supplemental indenture, without the consent of the Holders of each Security
so affected; or (c) reduce the percentage of Securities necessary to consent to
waive any past default under this Indenture to less than a majority, without the
consent of the Holders of each Security so affected; or (d) modify any of the
provisions of this Section or Section 4.10, except to increase any such
percentage
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provided in either such Section or to provide that certain other provisions of
this Indenture cannot be modified or waived without the consent of the Holder of
each Security affected thereby.
Upon the request of the Issuer, accompanied by a copy of a
resolution of the Board of Directors (which resolution may provide general terms
or parameters for such action and may provide that the specific terms of such
action may be determined in accordance with or pursuant to an Issuer Order),
certified by the Secretary or an Assistant Secretary of the Issuer, authorizing
the execution of any such supplemental indenture, and upon the filing with the
Trustee of evidence of the consent of Securityholders and other documents, if
any, required by Section 6.1, the Trustee shall join with the Issuer in the
execution of such supplemental indenture unless such supplemental indenture
adversely affects the Trustee' own rights, duties, immunities or liabilities
under this Indenture or otherwise, in which case the Trustee may in its
discretion, but shall not be obligated to, enter into such supplemental
indenture.
It shall not be necessary for the consent of the
Securityholders under this Section to approve the particular form of any
proposed supplemental indenture, but it shall be sufficient if such consent
shall approve the substance thereof.
Promptly after the execution by the Issuer and the Trustee of
any supplemental indenture pursuant to the provisions of this Section, the
Issuer shall mail a notice thereof by first-class mail to the Holders of
Securities at their addresses as they shall appear on the registry books of the
Issuer, setting forth in general terms the substance of such supplemental
indenture. Any failure of the Issuer to mail such notice, or any defect therein,
shall not, however, in any way impair or affect the validity of any such
supplemental indenture.
SECTION 7.3 Effect of Supplemental Indenture. Upon the
execution of any supplemental indenture pursuant to the provisions hereof, this
Indenture shall be and be deemed
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to be modified and amended in accordance therewith and the respective rights,
limitations of rights, obligations, duties and immunities under this Indenture
of the Trustee, the Issuer and the Holders of Securities shall thereafter be
determined, exercised and enforced hereunder subject in all respects to such
modifications and amendments, and all the terms and conditions of any such
supplemental indenture shall be and be deemed to be part of the terms and
conditions of this Indenture for any and all purposes.
SECTION 7.4 Documents to be Given to Trustee. The Trustee,
subject to the provisions of Sections 5.1 and 5.2, may upon request receive an
Officers' Certificate and an Opinion of Counsel as conclusive evidence that any
such supplemental indenture complies with the applicable provisions of this
Indenture.
SECTION 7.5 Notation on Securities in Respect of Supplemental
Indentures. Securities authenticated and delivered after the execution of any
supplemental indenture pursuant to the provisions of this Article may bear a
notation as to any matter provided for by such supplemental indenture. If the
Issuer shall so determine, new Securities so modified as to conform, in the
opinion of the Board of Directors, to any modification of this Indenture
contained in any such supplemental indenture may be prepared by the Issuer,
authenticated by the Trustee and delivered in exchange for the Securities then
Outstanding.
ARTICLE EIGHT
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 8.1 Covenant Not to Merge, Consolidate, Sell or Convey
Property Except Under Certain Conditions. The Issuer may not consolidate or
merge with or into (whether or not the Issuer is the Surviving Person), or sell,
assign, transfer, lease, convey or otherwise dispose of all or substantially all
of its properties or assets in one or more related transactions, to another
Person (each a "Disposition"), unless:
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(i) the Surviving Person is a corporation organized or existing under
the laws of the United States, any state thereof or the District of
Columbia;
(ii) the Surviving Person (if other than the Issuer) assumes all the
obligations of the Issuer under the Securities and this Indenture, and
makes provision for conversion rights in accordance with Section 12.5,
pursuant to a supplemental indenture in a form reasonably satisfactory
to the Trustee; and
(iii) immediately after such Disposition, no Event of Default or event
that, after the giving of notice or the passage of time or both, would
be an Event of Default, shall have occurred and be continuing.
SECTION 8.2 Successor Corporation or Entity Substituted. In
case of any such consolidation, merger, sale or conveyance, and following such
an assumption by the successor corporation, partnership or limited liability
company, such successor corporation, partnership or limited liability company
shall succeed to and be substituted for the Issuer, with the same effect as if
it had been named herein.
Such successor corporation, partnership or limited liability
company may cause to be signed, and may issue either in its own name or in the
name of the Issuer prior to such succession any or all of the Securities
issuable hereunder which theretofore shall not have been signed by the Issuer
and delivered to the Trustee; and, upon the order of such successor corporation,
partnership or limited liability company, instead of the Issuer, and subject to
all the terms, conditions and limitations in this Indenture prescribed, the
Trustee shall authenticate and shall deliver any Securities which previously
shall have been signed and delivered by the officers of the Issuer to the
Trustee for authentication, and any Securities which such successor corporation,
partnership or limited liability company
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thereafter shall cause to be signed and delivered to the Trustee for that
purpose. All of the Securities so issued shall in all respects have the same
legal rank and benefit under this Indenture as the Securities theretofore or
thereafter issued in accordance with the terms of this Indenture as though all
of such Securities had been issued at the date of the execution hereof.
In case of any such consolidation, merger, sale, lease or
conveyance, such changes in phraseology and form (but not in substance) may be
made in the Securities thereafter to be issued as may be appropriate.
In the event of any such sale or conveyance (other than a
conveyance by way of lease), the Issuer or any successor corporation,
partnership or limited liability company which shall theretofore have become
such in the manner described in this Article shall be discharged from all
obligations and covenants under this Indenture and the Securities and may be
liquidated and dissolved.
SECTION 8.3 Opinion of Counsel and Officers' Certificate to
Trustee. The Trustee, subject to the provisions of Sections 5.1 and 5.2, may
upon request receive an Opinion of Counsel prepared in accordance with Section
10.5 and an Officers' Certificate (confirming satisfaction of the conditions of
clauses (i), (ii) and (iii) of Section 8.1) as conclusive evidence that any such
consolidation, merger, sale, lease or conveyance, and any such assumption, and
any such liquidation or dissolution, complies with the applicable provisions of
this Indenture.
ARTICLE NINE
SATISFACTION AND DISCHARGE
OF INDENTURE; UNCLAIMED MONEYS
SECTION 9.1 Satisfaction and Discharge of Indenture. If at any
time (a) the Issuer shall have paid or caused to be paid the principal of and
premium, if any, and interest on all the Securities then Outstanding hereunder,
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as and when the same shall have become due and payable, or (b) the Issuer shall
have delivered to the Trustee for cancellation all Securities theretofore
authenticated (other than any Securities which shall have been destroyed, lost
or stolen and which shall have been replaced or paid as provided in Section 2.7)
or (c) (i) all such Securities not theretofore delivered to the Trustee for
cancellation (x) shall have become due and payable, or (y) are by their terms to
become due and payable within one year or are to be called for redemption within
one year under arrangements reasonably satisfactory to the Trustee for the
giving of notice of redemption, and (ii) the Issuer shall have irrevocably
deposited or caused to be deposited with the Trustee as trust funds the entire
amount in cash (other than moneys repaid by the Trustee or any Paying Agent to
the Issuer in accordance with Section 9.4) or U.S. Government Obligations
maturing as to principal and interest at such times and in such amounts as will
insure the availability of cash, or a combination thereof, sufficient in the
opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, to pay
the principal of and interest on all Securities on each date that such principal
or interest is due and payable; and if, in any such case, the Issuer shall also
pay or cause to be paid all other sums payable hereunder by the Issuer, then
this Indenture shall cease to be of further effect (except as to (i) rights of
registration of transfer, conversion and exchange of Securities, and the
Issuer's right of optional redemption contemplated in clause (c)(i)(y) above
(but not otherwise and not including the Holders' right of redemption or
repurchase contemplated by Article Thirteen or Article Fourteen), (ii)
substitution of apparently mutilated, defaced, destroyed, lost or stolen
Securities, (iii) rights of the Holders of Securities to receive payments of
principal thereof and premium, if any and interest thereon upon the original
stated due dates therefor (but not upon acceleration), (iv) the rights,
obligations and immunities of the Trustee hereunder, including any right to
compensation and indemnification under Section 5.5, and (v) the rights of the
Holders of Securities as beneficiaries hereof with respect to the property so
deposited with the
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Trustee payable to all or any of them), and the Trustee, on Issuer Order
accompanied by an Officers' Certificate and an Opinion of Counsel stating that
the provisions of this Section have been complied with and at the cost and
expense of the Issuer, shall execute proper instruments prepared by the Issuer
acknowledging such satisfaction of and discharging this Indenture, provided,
that the rights of Holders of the Securities to receive amounts in respect of
principal of, premium, if any, and interest on the Securities held by them shall
not be delayed longer than required by then-applicable mandatory rules or
policies of any securities exchange upon which the Securities are listed. In
addition, in connection with the satisfaction and discharge pursuant to clause
(c)(i)(y) above, the Trustee shall give notice to the Holders of Securities of
such satisfaction and discharge. The Issuer agrees to reimburse the Trustee for
any costs or expenses thereafter reasonably and properly incurred and to
compensate the Trustee for any services thereafter reasonably and properly
rendered by the Trustee in connection with this Indenture or the Securities.
Notwithstanding the satisfaction and discharge of this
Indenture, the obligations of the Issuer to the Trustee under Section 5.5 shall
survive.
SECTION 9.2 Application by Trustee of Funds Deposited for
Payment of Securities. Subject to Section 9.4, all moneys and securities
deposited with the Trustee pursuant to Section 9.1 shall be held in trust and
applied by it to the payment, either directly or through any Paying Agent
(including the Issuer acting as its own Paying Agent), to the Holders of the
particular Securities for the payment or redemption of which such moneys or
Securities have been deposited with the Trustee of all sums due and to become
due thereon for principal and interest; but such moneys or securities need not
be segregated from other funds except to the extent required by law.
SECTION 9.3 Repayment of Moneys Held by Paying Agent. In
connection with the satisfaction and discharge of this Indenture with respect to
Securities, all moneys then
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held by any Paying Agent under the provisions of this Indenture shall, upon
Issuer Order, be repaid to it or paid to the Trustee and thereupon such Paying
Agent shall be released from all further liability with respect to such moneys.
SECTION 9.4 Return of Moneys Held by Trustee and Paying Agent
Unclaimed for Two Years. Any moneys deposited with or paid to the Trustee or any
Paying Agent for the payment of the principal of or premium, if any, or interest
on any Security and not applied but remaining unclaimed for two years after the
date upon which such principal, premium or interest shall have become due and
payable shall, upon the written request of the Issuer and unless otherwise
required by mandatory provisions of applicable escheat or abandoned or unclaimed
property law, be repaid to the Issuer by the Trustee or such Paying Agent, and
the Holder of the Securities shall, unless otherwise required by mandatory
provisions of applicable escheat or abandoned or unclaimed property laws,
thereafter look only to the Issuer for any payment which such Holder may be
entitled to collect, and all liability of the Trustee or any Paying Agent with
respect to such moneys shall thereupon cease; provided, however, that the
Trustee or such Paying Agent, before being required to make any such repayment
with respect to moneys deposited with it for any payment, shall, at the expense
of the Issuer, mail by first-class mail to Holders of such Securities at their
addresses as they shall appear on the Security register notice that such moneys
remain and that, after a date specified therein, which shall not be less than 30
days from the date of such mailing, any unclaimed balance of such money then
remaining will be repaid to the Issuer upon Issuer Order.
SECTION 9.5 Indemnity for U.S. Government Obligations. The
Issuer 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 Section 9.1 or the principal or interest received in respect of such
obligations.
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ARTICLE TEN
MISCELLANEOUS PROVISIONS
SECTION 10.1 Partners, Incorporators, Stockholders, Officers
and Directors of Issue Exempt from Individual Liability. No recourse under or
upon any obliga tion, covenant or agreement contained in this Indenture, or in
any Security, or because of any indebtedness evidenced thereby, shall be had
against any incorporator, as such, or against any past, present or future
stockholder, officer or director, as such, of the Issuer or of any partner or
member of the Issuer or of any successor, either directly or through the Issuer
or any successor, under any rule of law, statute or constitutional provision or
by the enforcement of any assessment or by any legal or equitable proceeding or
otherwise, all such liability being expressly waived and released by the
acceptance of the Securities by the Holders thereof and as part of the
consideration for the issue of the Securities.
SECTION 10.2 Provisions of Indenture for the Sole Benefit of
Parties and Securityholders. Nothing in this Indenture or in the Securities,
expressed or implied, shall give or be construed to give to any Person, other
than the parties hereto and their successors and the Holders of the Securities,
any legal or equitable right, remedy or claim under this Indenture or under any
covenant or provision herein contained, all such covenants and provisions being
for the sole benefit of the parties hereto and their successors and the Holders
of the Securities.
SECTION 10.3 Successors and Assigns of Issuer Bound by
Indenture. All the covenants, stipulations, promises and agreements in this
Indenture contained by or on behalf of the Issuer shall bind its successors and
assigns, whether so expressed or not.
SECTION 10.4 Notices and Demands on Issuer, Trustee and
Securityholders. Any notice or demand which by any provision of this Indenture
is required or permitted to be given or served by the Trustee or by the Holders
of
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Securities to or on the Issuer may be given or served by being deposited postage
prepaid, first-class mail (except as otherwise specifically provided herein)
addressed (until another address of the Issuer is filed by the Issuer with the
Trustee) to American Tower Corporation, 116 Huntington Avenue, Boston, MA 02116,
Attention: Chief Financial Officer and Secretary. Any notice, direction, request
or demand by the Issuer or any Securityholder to or upon the Trustee shall be
deemed to have been sufficiently given or made, for all purposes, if given or
made at the Corporate Trust Office, Attention: Corporate Trust Trustee
Administration Department.
Where this Indenture provides for notice to Holders, such
notice shall be sufficiently given (except as otherwise specifically provided
herein) if in writing, and mailed, first-class postage prepaid, to each Holder
entitled thereto, at his last address as it appears in the Security register. In
any case where notice to Holders is given by mail, neither the failure to mail
such notice, nor any defect in any notice so mailed, to any particular Holder
shall affect the sufficiency of such notice with respect to other Holders. Where
this Indenture provides for notice in any manner, such notice may be waived in
writing by the Person entitled to receive such notice, either before or after
the event, and such waiver shall be the equivalent of such notice. Waivers of
notice by Holders shall be filed with the Trustee, but such filing shall not be
a condition precedent to the validity of any action taken in reliance upon such
waiver.
In case, by reason of the suspension of or irregu larities in
regular mail service, it shall be impracticable to mail notice to the Issuer and
Securityholders when such notice is required to be given pursuant to any
provision of this Indenture, then any manner of giving such notice as shall be
satisfactory to the Trustee shall be deemed to be a sufficient giving of such
notice.
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SECTION 10.5 Officers' Certificates and Opinions of Counsel;
Statements to Be Contained Therein. Upon any application or demand by the Issuer
to the Trustee to take any action under any of the provisions of this Indenture,
the Issuer shall furnish to the Trustee an Officers' Certificate stating that
all conditions precedent provided for in this Indenture relating to the proposed
action have been complied with and an Opinion of Counsel stating that in the
opinion of such counsel all such conditions precedent have been complied with,
except that in the case of any such application or demand as to which the
furnishing of such documents is specifically required by any provision of this
Indenture relating to such particular application or demand, no additional
certificate or opinion need be furnished.
Each certificate or opinion provided for in this Indenture and
delivered to the Trustee 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 has read such covenant or condition, (b) a
brief statement as to the nature and scope of the examination or investigation
upon the statements or opinions contained in such certificate or opinion 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.
Any certificate, statement or opinion of an officer of the
Issuer may be based, insofar as it relates to legal matters, upon a certificate
or opinion of or represen tations by counsel, unless such officer knows that the
certificate or opinion or representations with respect to the matters upon which
his certificate, statement or opinion may be based as aforesaid are erroneous,
or in the exercise of reasonable care should know that the same are erroneous.
Any certificate, statement or opinion of counsel may be based, insofar as it
relates to factual matters, information with respect to which is in the
possession of the Issuer, upon the certificate, statement or opinion of or
representa-
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tions by an officer or officers of the Issuer, unless such counsel knows that
the certificate, statement or opinion or representations with respect to the
matters upon which his certificate, statement or opinion may be based as
aforesaid are erroneous, or in the exercise of reasonable care should know that
the same are erroneous.
Any certificate, statement or opinion of an officer of the
Issuer or of counsel may be based, insofar as it relates to accounting matters,
upon a certificate or opinion of or representations by an accountant or firm of
accountants in the employ of the Issuer, unless such officer or counsel, as the
case may be, knows that the certificate or opinion or representations with
respect to the accounting matters upon which his certificate, statement or
opinion may be based as aforesaid are erroneous, or in the exercise of
reasonable care should know that the same are erroneous.
Any certificate or opinion of any independent firm of public
accountants filed with the Trustee shall contain a statement that such firm is
independent.
SECTION 10.6 Payments Due on Saturdays, Sundays and Legal
Holidays. If the date of maturity of interest on or principal of the Securities
or the date fixed for redemp tion or repayment of any Security or the last date
on which a Holder of Securities has a right to convert his Securities shall not
be a Business Day, then (notwithstanding any other provision of this Indenture
or of the Securities) payment of interest or principal or conversion of the
Securities need not be made on such date, but may be made on the next succeeding
Business Day with the same force and effect as if made on the date of maturity
or the date fixed for redemption or repayment or on such last day for
conversion, and no interest shall accrue for the period after such date.
SECTION 10.7 Conflict with TIA. Whether or not qualified under
the TIA, this Indenture shall be interpreted as though it were so qualified
including provisions required by the TIA or provisions deemed included except as
varied by this Indenture. If any provision hereof limits, qualifies or conflicts
with a provision of the TIA that is required
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under the TIA to be a part of and govern this Indenture, the latter provision
shall control. If any provision of this Indenture modifies or excludes any
provision of the TIA that may be so modified or excluded, the latter provision
shall be deemed to apply to this Indenture as so modified or to be excluded, as
the case may be.
SECTION 10.8 Communications by Holders with Other Holders.
Securityholders may communicate pursuant to Section 312(b) of the TIA with other
Holders with respect to their rights under this Indenture or the Securities. The
Issuer, the Trustee, the Registrar and any other person shall have the
protection of Section 312(c) of the TIA.
SECTION 10.9 Issuer to Furnish Trustee Names and Addresses of
Holders. The Issuer will furnish or cause to be furnished to the Trustee:
(a) semiannually, not later than February 15 and August 15 in
each year, a list, in such form as the Trustee may reasonably require,
of the names and addresses of the Securityholders as of a date not more
than 15 days prior to the delivery thereof, and
(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Issuer of any such request, a
list of similar form and content as of a date not more than 15 days
prior to the time such list is furnished;
excluding from any such list names and addresses received by the Trustee in the
capacity of Registrar.
SECTION 10.10 New York Law to Govern. This Indenture and each
Security shall be deemed to be a contract under the laws of the State of New
York, and for all purposes shall be construed in accordance with the laws of
said State, without regard to principles of conflicts of
laws.
SECTION 10.11 Counterparts. This Indenture may be executed in
any number of counterparts, each of which
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shall be an original; but such counterparts shall together constitute but one
and the same instrument.
SECTION 10.12 Effect of Headings. The Article and Section
headings herein and the Table of Contents are for convenience only and shall not
affect the construction hereof.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 11.1 Right of Optional Redemption; Prices. The Issuer
at its option may, on and after October 22, 2003, redeem all, or from time to
time any part of, the Securities upon payment of the optional Redemption Prices
set forth in the form of Security attached as Exhibit A hereto, together with
accrued interest to the date fixed for redemption.
SECTION 11.2 Notice of Redemption; Partial Redemptions. Notice
of redemption to the Holders of Securities to be redeemed as a whole or in part
shall be given by mailing notice of such redemption by first-class mail, postage
prepaid, at least 20 days and not more than 60 days prior to the date fixed for
redemption to such Holders of Securities at their last addresses as they shall
appear upon the registry books. Any notice which is mailed in the manner herein
provided shall be conclusively presumed to have been duly given, whether or not
the Holder receives the notice. Failure to give notice by mail, or any defect in
the notice to the Holder of any Security designated for redemption as a whole or
in part, shall not affect the validity of the proceedings for the redemption of
any other Security.
The notice of redemption to each such Holder shall specify the
principal amount of each Security held by such Holder to be redeemed, the date
fixed for redemption (the "Redemption Date"), the CUSIP numbers, the applicable
Redemption Price, the place or places of payment, that
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payment will be made upon presentation and surrender of such Securities, that
interest accrued to the date fixed for redemption will be paid as specified in
said notice and that on and after said date interest and Original Issue Discount
thereon or on the portions thereof to be redeemed will cease to accrue, and
shall also specify the Conversion Price then in effect and the date on which the
right to convert such Securities or the portions thereof to be redeemed will
expire. In case any Security is to be redeemed in part only the notice of
redemption shall state the portion of the principal amount thereof to be
redeemed and shall state that on and after the date fixed for redemption, upon
surrender of such Security, a new Security or Securities in principal amount
equal to the unredeemed portion thereof will be issued.
The notice of redemption of Securities to be redeemed at the
option of the Issuer shall be given by the Issuer or, at the Issuer's request,
by the Trustee in the name and at the expense of the Issuer.
At least one Business Day prior to the Redemption Date
specified in the notice of redemption given as provided in this Section, the
Issuer will deposit with the Trustee or with one or more Paying Agents (or, if
the Issuer is acting as its own Paying Agent, set aside, segregate and hold in
trust as provided in Section 2.3) an amount of money suffi cient to redeem on
the Redemption Date all the Securities so called for redemption (other than
those theretofore surrendered for conversion pursuant to Article Twelve) at the
appropriate Redemption Price (which includes accrued Original Issue Discount),
together with accrued interest to and including the date fixed for redemption.
If any Security called for redemption is converted pursuant hereto, any money
deposited with the Trustee or any Paying Agent or so segregated and held in
trust for the redemption of such Security shall be paid to the Issuer upon
Issuer Order, or, if then held by the Issuer, shall be discharged from such
trust. If less than all the outstanding Securities are to be redeemed, the
Issuer will deliver to the Trustee at least 10 days prior to the date of making
of the notice of
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redemption an Officers' Certificate stating the aggregate principal amount of
Securities to be redeemed.
If less than all the Securities are to be redeemed, the
Trustee shall select, by lot, pro rata or by such other manner as it shall deem
appropriate and fair, Securities to be redeemed in whole or in part. Securities
may be redeemed in part in multiples equal to the minimum authorized
denomination for Securities or any multiple thereof. The Trustee shall promptly
notify the Issuer in writing of the Securities selected for redemption and, in
the case of any Securities selected for partial redemption, the principal amount
thereof to be redeemed. For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of Securities
shall relate, in the case of any Security redeemed or to be redeemed only in
part, to the portion of the principal amount of such Security which has been or
is to be redeemed. If any Security selected for partial redemption is
surrendered for conversion after such selection, the converted portion of such
Security shall be deemed (so far as may be) to be the portion selected for
redemption. Upon any redemption of less than all the Securities, for purposes of
the selection for redemption, the Issuer and the Trustee may treat as
Outstanding Securities surrendered for conversion during the period of 15 days
next preceding the mailing of a notice of redemption, and need not treat as
Outstanding any Security authenticated and delivered during such period in
exchange for the unconverted portion of any Security converted in part during
such period.
SECTION 11.3 Payment of Securities Called for Redemption. If
notice of redemption has been given as above provided, the Securities or
portions of Securities specified in such notice shall become due and payable on
the date and at the place stated in such notice at the applicable Redemption
Price, together with interest accrued to and including the date fixed for
redemption, and on and after said date (unless the Issuer shall default in the
payment of such Securities at the Redemption Price, together with interest
accrued to said date) interest and Original Issue
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Discount on the Securities or portions of Securities so called for redemption
shall cease to accrue and such Securities shall cease from and after the close
of business on the Business Day immediately prior to the date fixed for
redemption to be convertible pursuant to the provisions of Article Twelve or,
except as provided in Sections 2.4 and 9.4, be entitled to any benefit or
security under this Indenture, and the Holders thereof shall have no right in
respect of such Securities except the right to receive the applicable Redemption
Price thereof and unpaid interest to and including the date fixed for
redemption. On presentation and surrender of such Securities at a place of
payment specified in said notice, said Securities or the specified portions
thereof shall be paid and redeemed by the Issuer at the applicable Redemption
Price, together with interest accrued thereon to and including the date fixed
for redemption, provided that any payment of interest becoming due on or prior
to the date fixed for redemption shall be payable to the Holders of such
Securities registered as such on the relevant record date subject to the terms
and provisions of Section 2.11 hereof.
If any Security called for redemption shall not be so paid
upon surrender thereof for redemption, the principal shall, until paid or duly
provided for, bear interest from the date fixed for redemption at the rate of
interest specified in such Security (giving effect to accrual of Original Issue
Discount) and such Security shall remain convertible pursuant to the provisions
of Article Twelve until the principal of such Security shall have been paid or
duly provided for.
Upon presentation of any Security redeemed in part only, the
Issuer shall execute and the Trustee shall authenticate and deliver to or on the
order of the Holder thereof, at the expense of the Issuer, a new Security or
Securities, of authorized denominations, in principal amount equal to the
unredeemed portion of the Security so presented.
SECTION 11.4 Exclusion of Certain Securities from Eligibility
for Selection for Redemption. Securities shall
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be excluded from eligibility for selection for redemption if they are identified
by registration and certificate number in a written statement signed by an
Officer of the Issuer and delivered to the Trustee at least 40 days prior to the
last date on which notice of redemption may be given as being owned of record
and beneficially by, and not pledged or hypothecated by either (a) the Issuer or
(b) an entity specifically identified in such Officers' Certificate directly or
indirectly controlling or controlled by or under direct or indirect common
control with the Issuer.
SECTION 11.5 Conversion Arrangement on Call for Redemption. In
connection with any redemption of the Securities, the Issuer may arrange for the
purchase and conversion of any Securities by an agreement with one or more
investment bankers or other purchasers (the "Purchasers") to purchase such
Securities by paying to the Trustee in trust for the Holders, on or before 11:00
a.m., Eastern Standard Time, on the Redemption Date, an amount not less than the
applicable Redemption Price, together with interest accrued and unpaid to the
Redemption Date, of such Securities. Notwithstanding anything to the contrary
contained in this Article, the obligation of the Issuer to pay the Redemption
Price, together with interest accrued and unpaid to the Redemption Date, shall
be deemed to be satisfied and discharged to the extent such amount is so paid by
such Purchasers. If such an agreement is entered into (a copy of which shall be
filed with the Trustee prior to the close of business on the second Business Day
immediately prior to the Redemption Date), any Securities called for redemption
that are not duly surrendered for conversion by the Holders thereof may, at the
option of the Issuer, be deemed, to the fullest extent permitted by law, and
consistent with any agreement or agreements with such Purchasers, to be acquired
by such Purchasers from such Holders and (notwithstanding anything to the
contrary contained in this Article) surrendered by such Purchasers for
conversion, all as of immediately prior to the close of business on the
Redemption Date (and the right to convert any such Securities shall be extended
through such time), subject to payment of the above amount as aforesaid. At the
written direction of the Issuer, the Trustee shall hold and
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dispose of any such amount paid to it by the Purchasers to the Holders in the
same manner as it would monies deposited with it by the Issuer for the
redemption of Securities. Without the Trustee's prior written consent, no
arrangement between the Issuer and such Purchasers for the purchase and
conversion of any Securities shall increase or otherwise affect any of the
powers, duties, responsibilities or obligations of the Trustee as set forth in
this Indenture, and the Issuer agrees to indemnify the Trustee from, and hold it
harmless against, any loss, liability or expense arising out of or in connection
with any such arrangement for the purchase and conversion of any Securities
between the Issuer and such Purchasers, including the costs and expenses,
including reasonable legal fees, incurred by the Trustee in the defense of any
claim or liability arising out of or in connection with the exercise or
performance of any of its powers, duties, responsibilities or obligations under
this Indenture.
ARTICLE TWELVE
CONVERSION OF SECURITIES
SECTION 12.1 Conversion Privilege. A Holder of a Security may
convert it into Class A Common Stock of the Issuer at any time prior to maturity
at the conversion price then in effect, except that, with respect to any
Security called for redemption, such conversion right shall terminate at the
close of business on the Business Day immediately preceding the Redemption Date,
Change in Control Repurchase Date or Repurchase Date (unless the Issuer shall
default in making the redemption or repurchase payment then due, in which case
the conversion right shall terminate on the date such default is cured and, if
applicable, the provisions of Section 13.2(d) are satisfied). The number of
shares of Class A Common Stock issuable upon conversion of a Security is
determined as follows: divide the Issue Price to be converted by the Conversion
Price in effect on the Date of Conversion; round the result to the nearest
1/100th of a share.
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The initial Conversion Price is stated in the fourth paragraph
of the reverse of the Securities and is subject to adjustment as provided in
this Article.
A Holder may convert a portion of a Security equal to $1,000
principal amount or any integral multiple thereof. Provisions of this Indenture
that apply to conversion of all of a Security also apply to conversion of a
portion of it.
SECTION 12.2 Exercise of Conversion Privilege. In order to
exercise the conversion privilege, the Holder of any Security to be converted
shall surrender such Security to the Issuer at any time during usual business
hours at its office or agency maintained for the purpose as provided in this
Indenture, accompanied by a fully executed written notice, in substantially the
form set forth on the reverse of the Security, that the Holder elects to convert
such Security or a stated portion thereof constituting a multiple of the minimum
authorized denomination thereof, and, if such Security is surrendered for
conversion during the period between the close of business on any record date
for such Security and the opening of business on the related interest payment
date (unless such Security shall have been called for redemption on a Redemption
Date or Change in Control Repurchase Date within such period or on such interest
payment date), accompanied also by payment of an amount equal to the interest
payable on such interest payment date on the portion of the principal amount of
the Security being surrendered for conversion. A Holder of any Security on a
record date for such Security who converts such Security on the related interest
payment date will receive the interest payable on such Security, and such
converting Holder need not include a payment for any such interest upon
surrender of such Security for conversion. Such notice shall also state the name
or names (with address) in which the certificate or certificates for shares of
Class A Common Stock shall be issued. Securities surrendered for conversion
shall (if so required by the Issuer or the Trustee) be duly endorsed by, or be
accompanied by a written instrument or instruments of transfer in form
satisfactory to the Issuer and the Trustee duly executed by, the Holder or his
attorney duly authorized in writing. As promptly as
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practicable after the receipt of such notice and the surrender of such Security
as aforesaid, the Issuer shall, subject to the provisions of Section 12.7, issue
and deliver at such office or agency to such Holder, or on his written order, a
certificate or certificates for the number of full shares of Class A Common
Stock issuable on such conversion of Securities in accordance with the
provisions of this Article and cash, as provided in Section 12.3, in respect of
any fraction of a share of Class A Common Stock otherwise issuable upon such
conversion. Such conversion shall be deemed to have been effected immediately
prior to the close of business on the date (herein called the "Date of
Conversion") on which such notice shall have been received by the Issuer and
such Security shall have been surrendered as aforesaid, and the Person or
Persons in whose name or names any certificate or certificates for shares of
Class A Common Stock shall be issuable upon such conversion shall be deemed to
have become on the Date of Conversion the holder or holders of record of the
shares represented thereby; provided, however, that any such surrender on any
date when the stock transfer books of the Issuer shall be closed shall
constitute the person or persons in whose name or names the certificate or
certificates for such shares are to be issued as the recordholder or holders
thereof for all purposes at the opening of business on the next succeeding day
on which such stock transfer books are open but such conversion shall
nevertheless be at the Conversion Price in effect at the close of business on
the date when such Security shall have been so surrendered with the conversion
notice. In the case of conversion of a portion, but less than all, of a
Security, the Issuer shall execute, and the Trustee shall authenticate and
deliver to the Holder thereof, at the expense of the Issuer, a Security or
Securities in the aggregate principal amount of the unconverted portion of the
Security surrendered. Except as otherwise expressly provided in this Indenture,
no payment or adjustment shall be made for interest or Original Issue Discount
accrued on any Security (or portion thereof) converted or for dividends or
distributions on any Class A Common Stock issued upon conversion of any
Security; provided, however, that in the case of any Securities which are
converted after the close of business on a relevant record date and on or prior
to the
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next succeeding interest payment date, installments of interest which are due
and payable on the next succeeding interest payment date shall be payable on
such interest payment date notwithstanding such conversion (unless such Security
shall have been called for redemption on a Redemption Date or Change in Control
Repurchase Date after the close of business on such record date and prior to the
opening of business on such interest payment date) and such interest (whether or
not punctually paid or duly provided for) shall be paid to the Holder of such
Securities registered as such at the close of business on the relevant record
date according to their terms. The Issuer's delivery of the fixed number of
shares of Class A Common Stock into which the Securities are convertible will be
deemed to satisfy the Issuer's obligation to pay the principal amount at
maturity of the Securities and all accrued interest and Original Issue Discount
that has not previously been (or is not simultaneously being) paid. The Class A
Common Stock is treated as issued first in payment of accrued interest and
Original Issue Discount and then in payment of principal.
SECTION 12.3 Fractional Shares. Except as pro vided below, the
Issuer will not issue fractional shares of Class A Common Stock upon conversion
of Securities. In lieu thereof, in the sole discretion of the Board of
Directors, either (a) such fractional interest will be rounded up to the nearest
full share, or (b) an appropriate amount will be paid in cash by the Issuer,
unless payment in cash is prohibited by the terms of the Issuer's indebtedness,
in which case fractional shares may be issued. If the Issuer shall deliver cash,
such cash shall be in the amount of the fair market value (as determined by the
Board of Directors) of such fractional interest. If more than one Security shall
be surrendered for conversion at one time by the same Holder, the number of full
shares issuable upon conversion thereof shall be computed on the basis of the
aggregate number of Securities, or the specified portions thereof to be
converted, so surrendered.
SECTION 12.4 Adjustment of Conversion Price. The Conversion
Price shall be subject to adjustment from time to time as follows:
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(a) In case the Issuer shall (1) pay a dividend or make a
distribution on Class A Common Stock in shares of Class A Common Stock,
(2) subdivide its outstanding shares of Class A Common Stock into a
greater number of shares or (3) combine its outstanding shares of Class
A Common Stock into a smaller number of shares, the Conversion Price in
effect immediately prior to such action shall be adjusted as provided
below so that the Holder of any Security thereafter surrendered for
conversion shall be entitled to receive the number of shares of Class A
Common Stock which he would have been entitled to receive immediately
following such action had such Security been converted immediately
prior thereto. An adjustment made pursuant to this subsection (a) shall
become effective immedi ately, except as provided in subsection (e)
below, after the record date in the case of a dividend or distribution
and shall become effective immediately after the effective date in the
case of a subdivision or combination.
(b) In case the Issuer shall issue rights, warrants or options
to all holders of Class A Common Stock entitling them for a period
expiring within 45 days after the record date therefor to subscribe for
or purchase shares of Class A Common Stock at a price per share less
than the current market price per share (as determined pursuant to
subsection (d) below) of the Class A Common Stock on the record date
mentioned below, the Conversion Price shall be adjusted to a price,
computed to the nearest cent, so that the same shall equal the price
determined by multiplying:
(1) the Conversion Price in effect immediately prior
to the date of issuance of such rights, warrants or option by
a fraction, of which
(2) the numerator shall be (A) the number of shares
of Class A Common Stock outstanding on the date of issuance of
such rights, warrants or options immediately prior to such
issuance, plus (B) the number of shares which the aggregate
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offering price of the total number of shares so offered for
subscription or purchase would purchase at such current market
price (determined by multiplying such total number of shares
by the exercise price of such rights, warrants or options and
dividing the product so obtained by such current market
price), and of which
(3) the denominator shall be (A) the number of shares
of Class A Common Stock outstanding on the date of issuance of
such rights, warrants or options, immediately prior to such
issuance, plus (B) the number of additional shares of Class A
Common Stock which are so offered for subscription or
purchase.
Such adjustment shall become effective immedi ately, except as
provided in subsection (e) below, after the record date for the
determination of Holders entitled to receive such rights, warrants or
options.
(c) In case the Issuer shall distribute to all holders of
Class A Common Stock evidences of indebtedness, equity securities
(including equity interests in the Issuer's Subsidiaries) other than
Class A Common Stock or other assets (other than cash dividends), or
shall distribute to all holders of Class A Common Stock rights,
warrants or options to subscribe to securities (other than those
referred to in subsection (b) above and dividends and distributions in
connection with the liquidation, dissolution or winding up of the
Issuer), then in each such case the Conversion Price shall be adjusted
so that the same shall equal the price determined by multiplying the
Conversion Price in effect immediately prior to the date of such
distribution by a fraction of which the numerator shall be the current
market price per share (determined as provided in subsection (d) below)
of the Class A Common Stock on the record date mentioned below less the
then fair market value (as determined by the Board of Directors, whose
determination shall be conclusive evidence of such fair market value,
and
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described in a Board Resolution filed with the Trustee) of the portion
of the assets, evidences of indebtedness and equity securities so
distributed or of such subscription rights, warrants or options
applicable to one share of Class A Common Stock, and of which the
denominator shall be such current market price per share of the Class A
Common Stock. For the purposes of this subsection (c), in the event of
a distribution of shares of capital stock or other securities of any
Subsidiary as a dividend on shares of Class A Common Stock, the then
fair market value of the shares of other securities so distributed
shall be deemed to be the market value (determined as provided above)
of such shares or other securities. Such adjustment shall become
effective immediately, except as provided in subsection (e) below,
after the record date for the determination of stockholders entitled to
receive such distribution.
(d) For the purpose of any computation under subsections (b)
and (c) above, the current market price per share of Class A Common
Stock on any date shall be deemed to be the average of the Last Sale
Prices of a share of Class A Common Stock for the five consecutive
Trading Days commencing not more than 20 Trading Days before, and
ending not later than, the earlier of the date in question and the date
before the "ex" date with respect to the issuance or distribution
requiring such computation. For purposes of this paragraph, the term
"'ex' date", when used with respect to any issuance or distribution,
means the first date on which the Class A Common Stock trades regular
way on the principal national securities exchange on which the Class A
Common Stock is listed or admitted to trading (or if not so listed or
admitted on NASDAQ or a similar organization if NASDAQ is no longer
reporting trading information) without the right to receive such
issuance or distribution.
(e) In any case in which this Section shall require that an
adjustment be made immediately follow ing a record date, the Issuer may
elect to defer the
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effectiveness of such adjustment (but in no event until a date later
than the effective time of the event giving rise to such adjustment),
in which case the Issuer shall, with respect to any Security converted
after such record date and before such adjustment shall have become
effective (i) defer making any cash payment pursuant to Section 12.3 or
issuing to the Holder of such Security the number of shares of Class A
Common Stock and other capital stock of the Issuer issuable upon such
conversion in excess of the number of shares of Class A Common Stock
and other capital stock of the Issuer issuable thereupon only on the
basis of the Conversion Price prior to adjustment, and (ii) not later
than five Business Days after such adjustment shall have become
effective, pay to such Holder the appropriate cash payment pursuant to
Section 12.3 and issue to such Holder the additional shares of Class A
Common Stock and other capital stock of the Issuer issuable on such
conversion.
(f) No adjustment in the Conversion Price shall be required if
Securityholders are to participate in the transaction on a basis and
with notice that the Board of Directors determines to be fair and
appropri ate in light of the basis and notice on which holders of Class
A Common Stock participate in the transaction. In addition, no
adjustment in the Conversion Price shall be required unless such
adjustment would require an increase or decrease of at least 1% in the
Conversion Price; provided that any adjustments which by reason of this
subsection (f) are not required to be made shall be carried forward and
taken into account in any subsequent adjustment. All calculations under
this Article shall be made to the nearest cent or to the nearest
one-hundredth of a share, as the case may be.
(g) Whenever the Conversion Price is adjusted as herein
provided, the Issuer shall promptly (i) file with the Trustee and each
conversion agent an Officers' Certificate setting forth the Conversion
Price after such adjustment and setting forth in reasonable detail the
facts requiring such adjustment and the
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calculations on which the adjustment is based, which certificate shall
be conclusive evidence of the correctness of such adjustment and which
shall be made available by the Trustee to the Holders of Securities for
inspection thereof, (ii) mail or cause to be mailed a notice of such
adjustment, setting forth the adjusted Conversion Price and the date on
which such adjustment became or becomes effective, to each Holder of
Securities at his address as the same appears on the registry books of
the Issuer.
To the extent permitted by law, the Issuer from time to time
may reduce the Conversion Price by any amount for any period of at least 20
days, if the Board of Directors has made a determination that such reduction
would be in the best interests of the Issuer, which determination shall be
conclusive. In such case, the Issuer shall give at least 15 days' notice of the
reduction. In addition, at its option, the Issuer may make such reduction in the
Conversion Price as the Board of Directors deems advisable to avoid or diminish
any income tax to holders of Class A Common Stock resulting from any dividend or
distribution of stock (or rights to acquire stock) or from any event treated as
such for income tax purposes.
SECTION 12.5 Continuation of Conversion Privilege in Case of
Reclassification, Reorganization, Change, Merger, Consolidation or Sale of
Assets. If any transaction shall occur, including without limitation (i) any
recapitalization or reclassification of shares of Class A Common Stock (other
than a change in par value, or from par value to no par value, or from no par
value to par value, or as a result of a subdivision or combination of the Class
A Common Stock), (ii) any consolidation or merger of the Issuer with or into
another person or any merger of another person into the Issuer (other than a
consolidation or merger that does not result in a reclassification, conversion,
exchange or cancellation of Class A Common Stock), (iii) any sale or transfer of
all or substantially all of the assets of the Issuer, or (iv) any compulsory
share exchange, pursuant to any of which holders of Class A Common Stock shall
be entitled to receive other securities, cash or other
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property, then appropriate provision shall be made so that the Holder of each
Security then Outstanding shall have the right thereafter to convert such
Security only into the kind and amount of the securities, cash or other property
that would have been receivable upon such recapitalization, reclassification,
consolidation, merger, sale, transfer or share exchange by a holder of the
number of shares of Class A Common Stock issuable upon conversion of such
Security immediately prior to such recapitalization, reclassification,
consolidation, merger, sale, transfer or share exchange, after giving effect to
any adjustment in the conversion price in accordance with this Indenture. The
company formed by such consolidation or resulting from such merger or that
acquires such assets or that acquires the Issuer's shares, as the case may be,
shall make provisions in its certificate of incorporation or other constituent
document to establish such right. Such certificate of incorporation or other
constituent document shall provide for adjustments that, for events subsequent
to the effective date of such certificate of incorporation or other constituent
documents, shall be as nearly equivalent as may be practicable to the relevant
adjustments provided for in Section 12.4 and in this Section.
SECTION 12.6 Notice of Certain Events. In case:
(a) the issuer shall declare a dividend (or any other
distribution) payable to the holders of Class A Common Stock (other
than cash dividends and dividends payable in Class A Common Stock); or
(b) the Issuer shall authorize the granting to the holders of
Class A Common Stock of rights, warrants or options to subscribe for or
purchase any shares of stock of any class or of any other rights,
warrants or options; or
(c) the Issuer shall authorize any reclassifica tion or change
of the Class A Common Stock (other than a subdivision or combination of
its outstanding shares of Class A Common Stock or a change in par
value, or from par value to no par value, or from no par value to
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par value), or any consolidation or merger to which the Issuer is a
party and for which approval of any stock holders of the Issuer is
required, or the sale or conveyance of all or substantially all the
property or business of the Issuer; or
(d) there shall be proposed any voluntary or involuntary
dissolution, liquidation or winding-up of the Issuer;
then, the Issuer shall cause to be filed with the Trustee, and, if other than
the Corporate Trust Office of the Trustee, at the office or agency maintained
for the purpose of conversion of the Securities as provided in Section 2.3, and
shall cause to be mailed to each Holder of Securities, at his address as it
shall appear on the registry books of the Issuer, as promptly as possible but in
any event at least 20 days before the date hereinafter specified (or the earlier
of the dates hereinafter specified, in the event that more than one date is
specified), a notice stating the date on which (1) a record is expected to be
taken for the purpose of such dividend, distribution, rights, warrants or
options, or if a record is not to be taken, the date as of which the holders of
Class A Common Stock of record to be entitled to such dividend, distribution,
rights or warrants are to be determined, or (2) such reclassification, change,
consolidation, merger, sale, transfer, conveyance, dissolution, liquidation or
winding-up is expected to become effective and the date, if any is to be fixed,
as of which it is expected that holders of Class A Common Stock of record shall
be entitled to exchange their shares of Class A Common Stock for securities or
other property deliverable upon such reclassification, change, consolidation,
merger, sale, transfer, conveyance, dissolution, liquidation or winding-up.
SECTION 12.7 Taxes on Conversion. The issuance and delivery of
certificates for shares of Class A Common Stock on conversion of Securities
shall be made without charge to the converting Holder of Securities for such
certificates or for any documentary, stamp or similar issue or transfer taxes
payable to the United States of America or
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any political subdivision or taxing authority thereof in respect of the issuance
or delivery of such certificates; provided, however, that the Issuer shall not
be required to pay any tax which may be payable in respect of any transfer
involved in the issuance of certificates for shares of Class A Common Stock, and
no such issue or delivery shall be made unless and until the Person requesting
such issue or delivery has paid to the Issuer the amount of any such tax or has
established, to the satisfaction of the Issuer, that such tax has been paid.
SECTION 12.8 Issuer to Provide Class A Common Stock. The
Issuer covenants that it will reserve and keep available, free from preemptive
rights, out of its authorized but unissued shares, solely for the purpose of
issue upon conversion of Securities as herein provided, sufficient shares of
Class A Common Stock to provide for the conversion of the Securities from time
to time as such Securities are presented for conversion.
If any shares of Class A Common Stock to be reserved for the
purpose of conversion of Securities hereunder require registration with or
approval of any governmental authority under any Federal or State law before
such shares may be validly issued or delivered upon conversion, then the Issuer
covenants that it will in good faith and as expeditiously as possible endeavor
to secure such registration or approval, as the case may be; provided, however,
that nothing in this Section shall be deemed to affect in any way the
obligations of the Issuer to convert Securities into Class A Common Stock as
provided in this Article.
Before taking any action which would cause an adjustment
reducing the Conversion Price below the then par value, if any, of the Class A
Common Stock, the Issuer will take all corporate action which may, in the
Opinion of Counsel, be necessary in order that the Issuer may validly and
legally issue fully paid and non-assessable shares of Class A Common Stock at
such adjusted Conversion Price.
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The Issuer covenants that all shares of Class A Common Stock
which may be issued upon conversion of Securities will upon issue be duly
authorized, validly issued and fully paid and non-assessable by the Issuer and
free of preemptive rights and of any lien or adverse claim and that, if the
Class A Common Stock is then listed on any national securities exchange or
quoted on NASDAQ, the shares of Class A Common Stock which may be issued upon
conversion of Securities will be similarly listed or quoted at the time of such
issuance.
The Issuer covenants that, upon conversion of Securities as
herein provided, there will be credited to Class A Common Stock par capital from
the consideration for which the shares of Class A Common Stock issuable upon
such conversion are issued an amount per share of Class A Common Stock so issued
as determined by the Board of Directors, which amount shall not be less than the
amount required by law and by the Issuer's certificate of incorporation, as
amended, as in effect on the date of such conversion. For the purposes of this
covenant the net proceeds received by the Issuer from the issuance and sale of
the Securities converted, less any cash conversion, shall be deemed to be the
amount of consideration for which the shares of Class A Common Stock issuable
upon such conversion are issued.
SECTION 12.9 Disclaimer of Responsibility for Certain Matters.
Neither the Trustee nor any Conversion Agent or agent of the Trustee shall at
any time be under any duty or responsibility to any Holder of Securities to
determine whether any facts exist which may require any adjustment of the
Conversion Price, or with respect to the Officers' Certificate referred to in
Section 12.4(g), or with respect to the nature or extent of any such adjustment
when made, or with respect to the method employed, or herein or in any
supplemental indenture provided to be employed, in making the same. Neither the
Trustee nor any Conversion Agent nor any agent of the Trustee shall be
accountable with respect to the validity, registration, listing, or value (or
the kind or amount) of any shares of Class A Common Stock, or of any securities
or cash or other property, which may at any time be issued or delivered upon the
conversion of any
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Security; and neither the Trustee nor any agent of the Trustee nor any
Conversion Agent makes any representation with respect thereto. Neither the
Trustee nor any Conversion Agent nor any agent of the Trustee shall be
responsible for any failure of the Issuer to make any cash payment or to issue,
register the transfer of or deliver any shares of Class A Common Stock or stock
certificates or other securities or property upon the surrender of any Security
for the purpose of conversion or, subject to Sections 5.1 and 5.2, to comply
with any of the covenants of the Issuer contained in this Article.
SECTION 12.10 Return of Funds Deposited for Redemption of
Converted Securities. Any funds which at any time shall have been deposited by
the Issuer or on its behalf with the Trustee or any other Paying Agent for the
purpose of paying the principal of and interest on any of the Securities and
which shall not be required for such purposes because of the conversion of such
Securities, as provided in this Article, shall after such conversion, upon the
written request of the Issuer, be repaid to the Issuer by the Trustee or such
other Paying Agent.
ARTICLE THIRTEEN
RIGHT TO REQUIRE REDEMPTION UPON CHANGE IN CONTROL
SECTION 13.1 Right to Require Redemption. If at any time there shall
occur any Change in Control (as defined below) of the Issuer, then each Holder
shall have the right, at such Holder's option, to require the Issuer to redeem,
and upon the exercise of such right the Issuer shall redeem, all or any part of
such Holder's Securities that is $1,000 in principal amount or any integral
multiple thereof, on the date (the "Change in Control Repurchase Date") that is
45 days after the date of the Issuer Notice (as defined below) at a price in
cash equal to the sum of the Issue Price thereof plus accrued Original Issue
Discount to the Repurchase Date, and accrued and unpaid interest to the
Repurchase Date (the "Change in Control Repurchase Price").
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SECTION 13.2 Notices; Method of Exercising Redemption Right, etc. (a)
Unless the Issuer shall have theretofore called for redemption all the
Securities then Outstanding pursuant to Article Eleven, on or before the 30th
day after the occurrence of a Change in Control, the Issuer or, at the request
of the Issuer, the Trustee, shall forward to all holders of record of the
Securities a notice (the "Issuer Notice") of the occurrence of the Change in
Control and of the redemption right set forth herein arising as a result thereof
in the manner provided in Section 10.4 hereof. The Issuer shall also deliver a
copy of the Issuer Notice to the Trustee prior to or promptly after the mailing
of such Issuer Notice.
Each Issuer Notice shall state:
(1) the Change in Control Repurchase Date;
(2) the date by which the Securities with respect to which
such right is being exercised and the irrevocable written notice
referred to in Section 13.2(b) must be delivered to the Trustee;
(3) the Change in Control Repurchase Price, including accrued
Original Issue Discount and accrued interest, if any;
(4) a description of the procedure which a Holder must follow
to exercise a redemption right including a form of the irrevocable
written notice referred to in Section 13.2(b); and
(5) the Conversion Price then in effect, the date on which the
right to convert the principal amount of the Securities to be redeemed
will terminate and the place or places where such Securities may be
surrendered for conversion.
No failure of the Issuer to give the Issuer Notice or any
defect therein shall limit any Holder's right to exercise a redemption right or
affect the validity of the proceedings for the redemption of Securities.
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(b) To exercise a redemption right, a Holder shall deliver to
the Trustee on or before the 30th day after the date of the Issuer Notice (i)
irrevocable written notice of the Holder's exercise of such right, which notice
shall set forth the name of the Holder, the amount of the Securities to be
redeemed (which shall be in any authorized denomination), and a statement that
an election to exercise the redemption right is being made thereby, and (ii) the
Securities with respect to which the redemption right is being exercised, duly
endorsed for transfer to the Issuer. Securities held by a securities depositary
may be delivered in such other manner as may be agreed to by such securities
depositary and the Issuer. Such written notice shall be irrevocable. Subject to
the provisions of subsection (d) below, Securities surrendered for redemption
together with such irrevocable written notice shall cease to be convertible from
the date of delivery of such notice. If the Change in Control Repurchase Date
falls after the record date and before the following interest payment date, any
Securities to be redeemed must be accompanied by payment of an amount equal to
the interest thereon which the registered Holder thereof is to receive on such
interest payment date, and, notwithstanding such redemption, such interest
payment will be made by the Issuer to the registered Holder thereof on the
applicable record date.
(c) In the event a redemption right shall be exercised in
accordance with the terms hereof, the Issuer shall pay or cause to be paid the
Change in Control Repurchase Price in cash, to the Holder on the Change in
Control Repurchase Date. The Issue Price of and accrued Original Issue Discount
and accrued interest on Securities payable at the Change in Control Repurchase
Price on the Change in Control Repurchase Date shall be considered to be
principal due on such date for purposes of this Indenture, including Article
Four.
(d) If any Security surrendered for redemption shall not be so
redeemed on the Change in Control Repurchase Date, such Security shall be
convertible at any time from the Change in Control Repurchase Date until
redeemed and, until redeemed, continue to bear interest (giving effect to
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accrual of Original Issue Discount) to the extent permitted by applicable law
from the Change in Control Repurchase Date at the same rate borne by such
Security. The Issuer shall pay to the Holder of such Security the additional
amount arising as a result of the provisions of this Section 13.2(d) at the same
time that it pays the Change in Control Repurchase Price, and if applicable such
Security shall remain convertible into Class A Common Stock until the Change in
Control Repurchase Price plus any additional amounts owing on such Security
shall have been paid or duly provided for.
(e) Any Security which is to be redeemed only in part shall be
surrendered at any office or agency of the Issuer designated for that purpose
pursuant to Section 2.3 (with, if the Issuer or the Trustee so requires, due
endorsement by, or a written instrument of transfer in form satisfactory to the
Issuer and the Trustee duly executed by, the Holder thereof or his attorney duly
authorized in writing), and the Issuer shall execute, and the Trustee shall
authenticate and deliver to the Holder of such Security without service charge,
a new Security or Securities, of any authorized denomination as requested by
such Holder, in aggregate principal amount equal to and in exchange for the
unredeemed portion of the Security so surrendered.
SECTION 13.3 Definition of Change in Control. A "Change in
Control" is deemed to have occurred when (i) any person or group other than one
or more of the Principal Stockholders (as hereinafter defined) or any person
employed by the Issuer in a management capacity as of September 28, 1999 (or any
group of which any of them is a member, collectively, a "Permitted Owner"),
acquires beneficial ownership of, directly or indirectly, shares of capital
stock of the Issuer sufficient to entitle such person to exercise more than 50%
of the total voting power of all classes of capital stock entitled to vote in
elections of directors (whether by means of an exchange offer, liquidation,
tender offer, consolidation, merger, combination, reclassification,
recapitalization or otherwise), or (ii) the Issuer sells, leases, exchanges or
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transfers (in one transaction or a series of related transactions) all or
substantially all of its assets to any person or group (in each instance, as the
term "person" or "group" is used in Section 13(d)(3) or 14(d)(2) of the
Securities Exchange Act of 1934, as amended), other than one or more Permitted
Owners, provided that any transaction described in (i) or (ii) (whether or not
in any such case to or involving a Permitted Owner) that results in the Class A
Common Stock (or a successor common equity security into which the Securities
become convertible pursuant to Section 12.4) no longer being listed on a
national securities exchange or traded on NASDAQ shall also be considered a
Change in Control. "Principal Stockholders" means Steven B. Dodge, Thomas H.
Stoner, Hicks, Muse, Tate & Furst Incorporated, Cox Telecom Towers, Inc. and
Clear Channel Communications, Inc. and their Affiliates.
SECTION 13.4 Limitation on Right to Require Redemption.
Notwithstanding anything herein to the contrary, no Holder shall have any right
to require redemption pursuant to this Article if either (i) the Last Sale Price
(or if on any such Trading Day the Class A Common Stock is not quoted by any
organization referred to in the definition of Last Sale Price, the fair value of
the Class A Common Stock on such day, as conclusively determined by the Board of
Directors) on any five Trading Days during the 10 Trading Day period immediately
preceding the date of the Change in Control shall equal or exceed 105% of the
Conversion Price in effect on such Trading Days or (ii) with respect to any
transaction described in clause (i) of Section 13.3, or any transaction
described in clause (ii) of Section 13.3 (so long as such transaction is
accompanied by or immediately followed by the complete liquidation and
dissolution of the Issuer), all the consideration to be paid for the Class A
Common Stock or the assets, as the case may be, in the transaction or
transactions constituting the Change in Control (A) has an aggregate fair market
value of at least 105% of the Conversion Price with respect to such Holder's
Securities in effect immediately prior to the closing of such transaction and
(B) consists of cash, securities traded on a national securities exchange or
quoted on NASDAQ or a combination of cash and securities.
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ARTICLE FOURTEEN
REPURCHASE OF SECURITIES AT OPTION OF THE HOLDER
SECTION 14.1 General. Securities shall be purchased by the
Issuer as of October 22, 2003 (the "Repurchase Date"), at the repurchase price
(the "Repurchase Price") set forth in the form of Security attached as Exhibit A
hereto, at the option of the Holder thereof, upon:
(1) delivery to the Paying Agent, by the Holder of a written
notice of purchase (the "Repurchase Notice") at any time from the
opening of business on the date that is 20 Business Days prior to the
Repurchase Date until the close of business on the Repurchase Date
stating:
(A) the certificate number of the Security which the
Holder will deliver to be purchased,
(B) the portion of the principal amount of the
Security which the Holder will deliver to be purchased, which
portion must be $1,000 or an integral multiple thereof,
(C) that such Security shall be purchased as of the
Repurchase Date pursuant to the terms and conditions specified
in the Securities and in this Indenture, and
(D) in the event the Issuer elects, pursuant to
Section 14.2, to pay the Repurchase Price, in whole or in
part, in shares of Class A Common Stock but such portion of
the Repurchase Price shall ultimately be payable to such
Holder entirely in cash because any of the conditions to
payment of the Repurchase Price in Class A Common Stock is not
satisfied prior to the close of business on the Repurchase
Date, as set forth in Section 14.4, whether such Holder elects
(i) to withdraw such Repurchase Notice as to some or all
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of the Securities to which such Repurchase Notice relates
(stating the principal amount and certificate numbers of the
Securities as to which such withdrawal shall relate), or (ii)
to receive cash in respect of the entire Repurchase Price for
all Securities (or portions thereof) to which such Repurchase
Notice relates; and
(2) delivery of such Security to the Paying Agent prior to, on
or after the Repurchase Date (together with all necessary endorsements)
at the offices of the Paying Agent, such delivery being a condition to
receipt by the Holder of the Repurchase Price therefor; provided,
however, that the Repurchase Price shall be so paid pursuant to this
Article only if the Security so delivered to the Trustee shall conform
in all respects to the description thereof in the related Repurchase
Notice.
If a Holder, in such Holder's Repurchase Notice and in any
written notice of withdrawal delivered by such Holder pursuant to the terms of
Section 14.9, fails to indicate such Holder's choice with respect to the
election set forth in clause (D) of Section 14.1(1), such Holder shall be deemed
to have elected to receive cash in respect of the Repurchase Price for all
Securities subject to such Repurchase Notice in the circumstances set forth in
such clause (D).
The Issuer shall purchase from the Holder thereof, pursuant to
this Article, a portion of a Security if the principal amount of such portion is
$1,000 or an integral multiple of $1,000. Provisions of this Indenture that
apply to the purchase of all of a Security also apply to the purchase of such
portion of such Security.
Any purchase by the Issuer contemplated pursuant to the
provisions of this Article shall be consummated by the delivery of the
consideration to be received by the Holder promptly following the later of the
Repurchase Date and the time of delivery of the Security.
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Notwithstanding anything herein to the contrary, any Holder
delivering to the Paying Agent a Repurchase Notice contemplated by this Section
14.1 shall have the right to withdraw such Repurchase Notice at any time prior
to the close of business on the Repurchase Date by delivery of a written notice
of withdrawal to the Paying Agent in accordance with Section 14.9.
The Paying Agent shall promptly notify the Issuer of the
receipt by it of any Repurchase Notice or written notice of withdrawal thereof.
SECTION 14.2 Issuer's Right to Elect Manner of Payment of
Repurchase Price. The Securities to be purchased pursuant to Section 14.1 may be
paid for, at the election of the Issuer, in cash or Class A Common Stock, or in
any combination of cash and Class A Common Stock, subject to the conditions set
forth in Sections 14.3 and 14.4. The Issuer shall designate, in the Issuer
Repurchase Notice delivered pursuant to Section 14.5, whether the Issuer will
purchase the Securities for cash or Class A Common Stock, or, if a combination
thereof, the percentages of the Repurchase Price of Securities in respect of
which it will pay in cash or Class A Common Stock; provided that the Issuer will
pay cash for fractional interests in Class A Common Stock unless payment in cash
is prohibited by the terms of the Issuer's indebtedness, in which case
fractional shares may be issued. For purposes of determining the existence of
potential fractional interests, all Securities subject to purchase by the Issuer
held by a Holder shall be considered together (no matter how many separate
certificates are to be presented). Each Holder whose Securities are purchased
pursuant to this Article shall receive the same percentage of cash or Class A
Common Stock in payment of the Repurchase Price for such Securities, except (i)
as provided in Section 14.4 with regard to the payment of cash in lieu of
fractional shares of Class A Common Stock and (ii) in the event that the Issuer
is unable to purchase the Securities of a Holder or Holders for Class A Common
Stock because any necessary qualifications or registrations of the Class A
Common Stock under applicable state securities laws cannot be obtained, the
Issuer may purchase the Securities of such Holder or
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Holders for cash. The Issuer may not change its election with respect to the
consideration (or components or percentages of components thereof) to be paid
once the Issuer has given its Issuer Repurchase Notice to Securityholders except
pursuant to this Section 14.2 or pursuant to Section 14.4 in the event of a
failure to satisfy, prior to the close of business on the Repurchase Date, any
condition to the payment of the Repurchase Price, in whole or in part, in Class
A Common Stock.
At least three Business Days before the Issuer Repurchase
Notice Date, the Issuer shall deliver an Officers' Certificate to the Trustee
specifying:
(1) the manner of payment selected by the Issuer,
(2) the information required by Section 14.5,
(3) if the Issuer elects to pay the Repurchase Price, or a
specified percentage thereof, in Class A Common Stock, that the
conditions to such manner of payment set forth in Section 14.4 have
been or will be complied with, and
(4) whether the Issuer desires the Trustee to give the Issuer
Repurchase Notice required by Section 14.5.
SECTION 14.3 Repurchase with Cash. On the Repurchase Date, at
the option of the Issuer, the Repurchase Price of Securities in respect of which
a Repurchase Notice pursuant to Section 14.1 has been given, or a specified
percentage thereof, may be paid by the Issuer with cash equal to the aggregate
Repurchase Price of such Securities. If the Issuer elects to purchase Securities
with cash, the Issuer Repurchase Notice, as provided in Section 14.5, shall be
sent to Holders (and the Depositary shall distribute to beneficial owners as
required by applicable law) not less than 20 Business Days prior to the
Repurchase Date (the "Issuer Repurchase Notice Date").
SECTION 14.4 Payment by Issuance of Class A Common Stock. On
the Repurchase Date, at the option of the
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Issuer, the Repurchase Price of Securities in respect of which a Repurchase
Notice pursuant to Section 14.1 has been given, or a specified percentage
thereof, may be paid by the Issuer by the issuance of a number of shares of
Class A Common Stock equal to the quotient obtained by dividing (i) the amount
of cash to which the Securityholders would have been entitled had the Issuer
elected to pay all or such specified percentage, as the case may be, of the
Repurchase Price of such Securities in cash by (ii) the Market Price of a share
of Class A Common Stock, subject to the next succeeding paragraph.
The Issuer will not issue a fractional share of Class A Common
Stock in payment of the Repurchase Price. Instead the Issuer will pay cash for
the current market value of the fractional share. The current market value of a
fraction of a share shall be determined by multiplying the Market Price by such
fraction and rounding the product to the nearest whole cent. It is understood
that if a Holder elects to have more than one Security purchased, the number of
shares of Class A Common Stock shall be based on the aggregate amount of
Securities to be purchased.
If the Issuer elects to purchase the Securities by the
issuance of shares of Class A Common Stock, the Issuer Repurchase Notice, as
provided in Section 14.5, shall be sent to the Holders (and the Depositary shall
distribute to beneficial owners as required by applicable law) not later than
the Issuer Repurchase Notice Date.
The Issuer's right to exercise its election to purchase the
Securities pursuant to this Article through the issuance of shares of Class A
Common Stock shall be conditioned upon:
(1) the Issuer's not having given its Issuer Repurchase Notice
of an election to pay entirely in cash and its giving a timely Issuer
Repurchase Notice of election to purchase all or a specified percentage
of the Securities with Class A Common Stock as provided herein;
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(2) the registration of the shares of Class A Common Stock to
be issued in respect of the payment of the Repurchase Price under the
Securities Act or the Exchange Act, in each case, if required;
(3) any necessary qualification or registration under
applicable state securities laws or the availability of an exemption
from such qualification and registration; and
(4) the receipt by the Trustee of an Officers' Certificate and
an Opinion of Counsel each stating that (A) the terms of the issuance
of the Class A Common Stock are in conformity with this Indenture and
(B) the shares of Class A Common Stock to be issued by the Issuer in
payment of the Repurchase Price in respect of Securities have been duly
authorized and, when issued and delivered pursuant to the terms of this
Indenture in payment of the Repurchase Price in respect of the
Securities, will be validly issued, fully paid and non-assessable and,
to the best of such counsel's knowledge, free from preemptive rights,
and, in the case of such Officers' Certificate, stating that conditions
(1), (2) and (3) above and the information publication requirement set
forth in the second sentence of the next succeeding paragraph have been
satisfied and, in the case of such Opinion of Counsel, stating that
conditions (2) and (3) above have been satisfied.
Such Officers' Certificate shall also set forth the number of
shares of Class A Common Stock to be issued for each $1,000 principal
amount of Securities and the Last Sale Price of a share of Class A
Common Stock on each Trading Day during the period commencing on the
first Trading Day of the period during which the Market Price is
calculated and ending on the Repurchase Date. The Issuer may pay the
Repurchase Price (or any portion thereof) in Class A Common Stock only
if the information necessary to calculate the Market Price is published
in a daily newspaper of national circulation. If the foregoing
conditions are not satisfied with
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respect to a Holder or Holders prior to the close of business on the
Repurchase Date and the Issuer has elected to purchase the Securities
pursuant to this Article through the issuance of shares of Class A
Common Stock, the Issuer shall pay the entire Repurchase Price of the
Securities of such Holder or Holders in cash.
The "Market Price" means the average of the Last Sale Prices
of the Class A Common Stock for the five Trading Day period ending on (if the
third Business Day prior to the Repurchase Date is a Trading Day, or if not,
then on the last Trading Day prior to) the third Business Day prior to the
Repurchase Date, appropriately adjusted to take into account the occurrence,
during the period commencing on the first of such Trading Days during such five
Trading Day period and ending on the Repurchase Date, of any event described in
Sections 12.4(a), 12.4(b) or 12.4(c), subject, however, to the conditions set
forth in Section 12.4(f).
SECTION 14.5 Notice of Election. The Issuer's notice of
election to purchase with cash or Class A Common Stock or any combination
thereof shall be sent to the Holders (and to beneficial owners as required by
applicable law) in the manner provided in Section 10.4 at the time specified in
Section 14.3 or 14.4, as applicable (the "Issuer Repurchase Notice"). Such
Issuer Repurchase Notice shall state the manner of payment elected and shall
contain the following information:
In the event the Issuer has elected to pay the Repurchase
Price (or a specified percentage thereof) with Class A Common Stock,
the Issuer Repurchase Notice
shall:
(1) state that each Holder will receive Class A
Common Stock with a Market Price determined as of a specified
date prior to the Repurchase Date equal to such specified
percentage of the Repurchase Price of the Securities held by
such
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Holder (except any cash amount to be paid in lieu of
fractional shares);
(2) set forth the method of calculating the Market
Price of the Class A Common Stock as required by Section 14.4;
and
(3) state that, because the Market Price of Class A
Common Stock will be determined prior to the Repurchase Date,
Holders will bear the market risk with respect to the value of
the Class A Common Stock to be received from the date such
Market Price is determined to the Repurchase Date.
In any case, each Issuer Repurchase Notice shall include a
form of Repurchase Notice to be completed by a Securityholder and shall
state:
(A) the Repurchase Price and the Conversion Price;
(B) the name and address of the Paying Agent and the
Conversion Agent;
(C) that Securities as to which a Repurchase Notice
has been given may be converted pursuant to Article Twelve
only if the applicable Repurchase Notice has been withdrawn in
accordance with the terms of this Indenture;
(D) that Securities must be surrendered to the Paying
Agent to collect payment;
(E) that the Repurchase Price for any security as to
which a Repurchase Notice has been given and not withdrawn
will be paid promptly following the later of the Repurchase
Date and the time of surrender of such Security as described
in (D) above;
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(F) the procedures the Holder must follow to exercise
rights under this Article and a brief description of those
rights;
(G) briefly, the conversion rights of the Securities;
and
(H) the procedures for withdrawing a Repurchase
Notice (including, without limitation, for a conditional
withdrawal pursuant to the terms of Section 14.1(1)(D) or
Section 14.9).
At the Issuer's request, the Trustee shall give such Issuer
Repurchase Notice in the Issuer's name and at the Issuer's expense; provided,
however, that, in all cases, the text of such Issuer Repurchase Notice shall be
prepared by the Issuer.
Upon determination of the actual number of shares of Class A
Common Stock to be issued for each $1,000 principal amount of Securities, the
Issuer will publish such determination in a newspaper of national circulation.
SECTION 14.6 Covenants of the Issuer. All shares of Class A
Common Stock delivered upon purchase of the Securities shall be newly issued
shares or treasury shares, shall be duly authorized, validly issued, fully paid
and non-assessable by the Issuer and shall be free of preemptive rights of any
lien or adverse claim.
If the Class A Common Stock is then listed on any national
securities exchange or quoted on NASDAQ, the shares of Class A Common Stock to
be issued to purchase Securities will be similarly listed or quoted at the time
of such issuance.
SECTION 14.7 Procedure upon Repurchase. The Issuer shall
deposit cash (in respect of a cash purchase under Section 14.3 or for fractional
interests, as applicable) or shares of Class A Common Stock, or a combination
thereof, as applicable, at the time and in the manner as provided in Section
14.10, sufficient to pay the
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aggregate Repurchase Price of all Securities to be purchased on the Repurchase
Date pursuant to this Article. As soon as practicable after the Repurchase Date,
the Issuer shall deliver to each Holder entitled to receive Class A Common Stock
through the Paying Agent a certificate for the number of full shares of Class A
Common Stock issuable in payment of the Repurchase Price and cash in lieu of any
fractional interests. The Person in whose name the certificate for Class A
Common Stock is registered shall be treated as a holder of record of shares of
Class A Common Stock on the Business Day following the Repurchase Date. Subject
to Section 14.4, no payment or adjustment will be made for dividends on the
Class A Common Stock the record date for which occurred on or prior to the
Repurchase Date.
SECTION 14.8 Taxes. If a Holder of a Security is paid in Class
A Common Stock, the Issuer shall pay any documentary, stamp or similar issue or
transfer taxes payable to the United Sates of America or any political
subdivision or taxing authority thereof in respect of the issuance or delivery
of such Class A Common Stock; provided, however, that the Issuer shall not be
required to pay any tax which may be payable in respect of any transfer involved
in the issuance of shares of Class A Common Stock, and no such issue or delivery
shall be made unless and until the Person requesting such issue or delivery has
paid to the Issuer or the Paying Agent the amount of any such tax or has
established, to the satisfaction of the Issuer or the Paying Agent, that such
tax has been paid. Nothing herein shall preclude any income tax withholding
required by law or regulations.
SECTION 14.9 Effect of Repurchase Notice. Upon receipt by the
Paying Agent of the Repurchase Notice, the Holder of the Security in respect of
which such Repurchase Notice was given shall (unless such Repurchase Notice is
withdrawn as specified in the following two paragraphs) thereafter be entitled
to receive solely the Repurchase Price with respect to such Security. The
Repurchase Price shall be paid to such Holder, subject to receipt of funds
and/or securities by the Paying Agent, promptly following the later of (x) the
Repurchase Date with respect to such
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Security (provided the conditions in Section 14.1 have been satisfied) and (y)
the time of delivery of such Security to the Paying Agent by the Holder thereof
in the manner required by Section 14.1. Securities in respect of which a
Repurchase Notice has been given by the Holder thereof may not be converted
pursuant to Article Twelve on or after the date of the delivery of such
Repurchase Notice unless such Repurchase Notice has first been validly withdrawn
as specified in the following two paragraphs. The Issue Price of and accrued
Original Discount on Securities payable as the Repurchase Price on the
Repurchase Date shall be considered to be principal due on such date for
purposes of this Indenture, including Article Four.
A Repurchase Notice may be withdrawn by means of a written
notice of withdrawal delivered to the office of the Paying Agent in accordance
with the Repurchase Notice at any time prior to the close of business on the
Repurchase Date specifying:
(1) the certificate number of the Security in respect of which
such notice of withdrawal is being submitted;
(2) the principal amount of the Security with respect to which
such notice of withdrawal is being submitted; and
(3) the principal amount, if any, of such Security which
remains subject to the original Repurchase Notice and which has been or
will be delivered for purchase by the Issuer.
A written notice of withdrawal of a Repurchase Notice may be
in the form set forth in the preceding paragraph or may be in the form of (i) a
conditional withdrawal contained in a Repurchase Notice pursuant to the terms of
Section 14.1(1)(D) or (ii) a conditional withdrawal containing the information
set forth in Section 14.1(1)(D) and the preceding paragraph and contained in a
written notice of withdrawal delivered to the Paying Agent as set forth in the
preceding paragraph.
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There shall be no purchase of any Securities pursuant to this
Article (other than through the issuance of Class A Common Stock in payment of
the Repurchase Price, including cash in lieu of fractional shares) if there has
occurred (prior to, on or after, as the case may be, the giving, by the Holders
of such Securities, of the required Repurchase Notice) and is continuing an
Event of Default (other than a default in the payment of the Repurchase Price
with respect to such Securities). The Paying Agent will promptly return to the
respective Holders thereof any Securities (x) with respect to which a Repurchase
Notice has been withdrawn in compliance with this Indenture, or (y) held by it
during the continuance of an Event of Default (other than a default in the
payment of the Repurchase Price with respect to such Securities) in which case,
upon such return, the Repurchase Notice with respect thereto shall be deemed to
have been withdrawn.
SECTION 14.10 Deposit of Repurchase Price. Prior to 11:00 a.m.
(New York City time) on the Repurchase Date the Issuer shall deposit with the
Trustee or with one or more Paying Agents (or, if the Issuer is acting as its
own Paying Agent, shall segregate and hold in trust as provided in Section 2.3)
an amount of money (in immediately available funds if deposited on such Business
Day) or Class A Common Stock, if permitted hereunder, sufficient to pay the
aggregate Repurchase Price of all of the Securities or portions thereof that are
to be purchased as of the Repurchase Date.
SECTION 14.11 Securities Repurchased in Part. Any Security
which is to be purchased only in part shall be surrendered at the office of the
Paying Agent (with, if the Issuer or the Trustee so requires, due endorsement
by, or a written instrument of transfer in form satisfactory to the Issuer or
the Trustee duly executed by, the Holder thereof or such Holder's attorney duly
authorized in writing) and the Issuer shall execute and the Trustee shall
authenticate and deliver to the Holder of such Security, without service charge,
a new Security or Securities, of any authorized denomination as requested by
such Holder in aggregate principal amount equal to, and in exchange for, the
portion
-103-
<PAGE>
of the principal amount of the Security so surrendered which is not purchased.
SECTION 14.12 Issuer to Comply with Securities Laws Upon
Purchase of Securities. In connection with any offer to purchase or purchase of
Securities under this Article (provided that such offer or purchase constitutes
an "issuer tender offer" for purposes of Rule 13e-4 (which term, as used herein,
includes any successor provision thereto) under the Exchange Act at the time of
such offer or purchase), the Issuer shall (i) comply with Rule 13e-4 and Rule
14e-1 under the Exchange Act, (ii) file the related Schedule 13E-4 (or any
successor schedule, form or report) under the Exchange Act, and (iii) otherwise
comply with all Federal and state securities laws so as to permit the rights and
obligations under this Article to be exercised in the time and in the manner
specified in this Article.
SECTION 14.13 Repayment to the Issuer. The Trustee and any
Paying Agent shall return to the Issuer any cash or shares of Class A Common
Stock that remain unclaimed as provided in Section 9.4, together with interest
or dividends, if any, thereon held by them for the payment of the Repurchase
Price upon Issuer Order; provided, however, that to the extent that the
aggregate amount of cash or shares of Class A Common Stock deposited by the
Issuer pursuant to Section 14.10 exceeds the aggregate Repurchase Price of the
Securities or portions thereof which the Issuer is obligated to purchase as of
the Repurchase Date, then promptly after the Business Day following the
Repurchase Date the Trustee shall return any such excess to the Issuer together
with interest or dividends, if any, thereon.
-104-
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, all as of October 4, 1999.
AMERICAN TOWER CORPORATION
By /s/ Joseph L. Winn
Name: Joseph L. Winn
Title: Chief Financial Officer
Attest:
By /s/ Adam Benjamin
Name: Adam Benjamin
Title: Assistant Secretary
THE BANK OF NEW YORK, not in
its individual capacity but
solely as Trustee
By /s/ Van Brown
Name: Van Brown
Title: Assistant Vice President
-105-
<PAGE>
EXHIBIT A
[FORM OF FACE OF SECURITY]
THE FOLLOWING LEGEND SHALL APPEAR ON THE FACE OF EACH SECURITY:
THIS SECURITY IS ISSUED WITH ORIGINAL ISSUE DISCOUNT. THE ISSUE PRICE IS $705.20
PER $1,000 PRINCIPAL AMOUNT AT MATURITY. THE ISSUE DATE IS OCTOBER 4, 1999. THE
YIELD TO MATURITY IS 6.25% PER ANNUM.
THE FOLLOWING LEGEND SHALL APPEAR ON THE FACE OF EACH RESTRICTED SECURITY OTHER
THAN ANY RESTRICTED GLOBAL SECURITY:
THIS SECURITY (OR ITS PREDECESSOR) AND ANY CLASS A COMMON
STOCK ISSUED ON CONVERSION HEREOF HAVE NOT BEEN REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE
SECURITIES LAW AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED
EXCEPT (A)(1) TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT
PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL
BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (2) PURSUANT TO AN
EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144
THEREUNDER (IF AVAILABLE), OR (3) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT, AND (B) IN ACCORDANCE WITH ALL APPLICABLE
SECURITIES LAWS OF THE STATES OF THE UNITED STATES.
EACH PURCHASER OF THIS SECURITY IS HEREBY NOTIFIED THAT THE
SELLER OF THIS SECURITY MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF
SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER.
<PAGE>
THE FOLLOWING LEGEND SHALL APPEAR ON THE FACE OF EACH RESTRICTED GLOBAL
SECURITY:
THE SECURITIES EVIDENCED BY THIS GLOBAL SECURITY (OR THEIR
PREDECESSORS) AND ANY CLASS A COMMON STOCK ISSUED ON CONVERSION OF THOSE
SECURITIES HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAW AND MAY NOT
BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE ABSENCE OF
REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM.
EACH BENEFICIAL OWNER OF AN INTEREST IN ANY OF THE SECURITIES
EVIDENCED BY THIS GLOBAL SECURITY (INCLUDING ANY PARTICIPANT IN THE DEPOSITARY
HOLDING THE GLOBAL SECURITY THAT IS SHOWN AS HOLDING SUCH AN INTEREST ON THE
RECORDS OF SUCH DEPOSITARY AND EACH BENEFICIAL OWNER THAT HOLDS THROUGH ANY SUCH
PARTICIPANT) AGREES FOR THE BENEFIT OF AMERICAN TOWER CORPORATION (THE "ISSUER")
THAT (I) ANY BENEFICIAL INTEREST IN THE SECURITIES AND ANY SHARES OF CLASS A
COMMON STOCK ISSUABLE UPON THEIR CONVERSION MAY BE RESOLD, PLEDGED OR OTHERWISE
TRANSFERRED ONLY (A)(1) TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A
QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE
SECURITIES ACT PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (2)
PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY
RULE 144 THEREUNDER (IF AVAILABLE), OR (3) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT, AND (B) IN ACCORDANCE WITH ALL APPLICABLE
SECURITIES LAWS OF THE STATES OF THE UNITED STATES AND (II) THE BENEFICIAL OWNER
WILL, AND EACH SUBSEQUENT BENEFICIAL OWNER OF AN INTEREST IN ANY OF THE
SECURITIES EVIDENCED BY THIS GLOBAL SECURITY OR ANY CLASS A COMMON STOCK
ISSUABLE UPON CONVERSION THEREOF IS REQUIRED TO, NOTIFY ANY PURCHASER OF ANY
BENEFICIAL INTEREST IN THE SECURITIES OR SUCH CLASS A COMMON STOCK ISSUABLE UPON
ITS CONVERSION FROM IT OF THE RESALE RESTRICTIONS REFERRED TO IN (I) ABOVE.
EACH PURCHASER OF ANY BENEFICIAL INTEREST IN THE SECURITIES IS
HEREBY NOTIFIED THAT THE SELLER OF SUCH
-2-
<PAGE>
BENEFICIAL INTEREST MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF
SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER.
THE FOLLOWING LEGEND SHALL APPEAR ON THE FACE OF EACH GLOBAL SECURITY:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE
INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE
DEPOSITARY OR A NOMINEE OF THE DEPOSITARY, WHICH MAY BE TREATED BY THE ISSUER,
THE TRUSTEE AND ANY AGENT THEREOF AS OWNER AND HOLDER OF THIS SECURITY FOR ALL
PURPOSES. THE FOLLOWING LEGEND SHALL APPEAR ON THE FACE OF EACH GLOBAL SECURITY
FOR WHICH THE DEPOSITORY TRUST COMPANY IS TO BE THE DEPOSITARY:
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"),
TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT,
AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH
OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
-3-
<PAGE>
No. $
[CUSIP NO.]
American Tower Corporation
2.25% Convertible Notes Due 2009
American Tower Corporation (the "Issuer"), for value received
hereby promises to pay to _________ or registered assigns the principal sum of
_________ Dollars (which principal amount may from time to time be increased or
decreased to such other principal amounts (which, taken together with the
principal amounts of all other Outstanding Securities, shall not exceed
$468,050,000 in the aggregate at any time) by adjustments made on the records of
the Trustee hereinafter referred to in accordance with the Indenture) at the
Issuer's office or agency for said purpose in the Borough of Manhattan, The City
of New York, on October 15, 2009, in 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, and to pay interest, semi-annually on April 15 and
October 15 of each year and at maturity, on said principal sum in like coin or
currency at the rate per annum set forth above beginning on April 15, 2000, or
from the most recent date to which interest has been paid or duly provided for
on the Securities. The interest so payable on any April 15 or October 15 will,
except as otherwise provided in the Indenture referred to on the reverse hereof,
be paid to the person in whose name this Security is registered at the close of
business on the March 31 or September 30 preceding such April 15 or October 15,
whether or not such day is a business day; provided that interest may be paid,
at the option of the Issuer, by mailing a check therefor payable to the
registered Holder entitled thereto at his last address as it appears on the
Security register.
Reference is made to the further provisions set forth on the
reverse hereof, including without limitation
-4-
<PAGE>
provisions giving the Holder hereof the right to convert this Security into
Class A Common Stock of the Issuer on the terms and subject to the conditions
and limitations referred to on the reverse hereof, as more fully specified in
the Indenture. Such further provisions shall for all purposes have the same
effect as though fully set forth at this place.
This Security shall not be valid or obligatory until the
certificate of authentication hereon shall have been duly signed by the Trustee
acting under the Indenture.
IN WITNESS WHEREOF, the Issuer has caused this instrument to
be duly executed under its corporate seal.
Dated:
[Seal]
AMERICAN TOWER CORPORATION
By____________________________
By____________________________
-5-
<PAGE>
[FORM OF REVERSE OF SECURITY]
American Tower Corporation
2.25% Convertible Notes Due 2009
This Security is one of a duly authorized issue of debt
securities of the Issuer, limited to up to the aggregate principal amount of
$425,500,000, or up to $468,050,000 if an option is fully exercised (except as
otherwise provided in the Indenture defined below), issued or to be issued
pursuant to an indenture dated as of October 4, 1999 (the "Indenture"), duly
executed and delivered by the Issuer to The Bank of New York, as Trustee (the
"Trustee"). Reference is hereby made to the Indenture and all indentures
supplemental thereto for a description of the rights, limitations of rights,
obligations, duties and immunities thereunder of the Trustee, the Issuer and the
Holders (the word "Holders" or "Holder" meaning the registered Holders or
registered Holder) of the Securities. Terms used but not otherwise defined
herein shall have the meanings assigned thereto in the Indenture.
In case an Event of Default, as defined in the Indenture,
shall have occurred and be continuing, the sum of the Issue Price plus accrued
Original Issue Discount of all the Securities and interest accrued thereon may
be declared due and payable, in the manner and with the effect, and subject to
the conditions, provided in the Indenture. The Indenture provides that in
certain events a declaration of default, a default, or the consequences of
either of them may be waived by the Holders of a majority in aggregate principal
amount of the Securities then outstanding except a default in the payment of
principal, Change in Control Repurchase Price or Repurchase Price of or premium,
if any, or interest or accrued Original Issue Discount on any of the Securities
or in respect of the conversion of any of the Securities. Any such consent or
waiver by the Holder of this Security (unless revoked as provided in the
Indenture) shall be conclusive and binding upon such Holder and upon
-6-
<PAGE>
all future Holders and owners of this Security and any Security which may be
issued in exchange or substitution hereof, whether or not any notation thereof
is made upon this Security or such other Securities.
The Indenture permits the Issuer and the Trustee, without the
consent of any of the Holders under the circumstances described in Section 7.1
of the Indenture, and with the consent of the Holders of not less than a
majority in aggregate principal amount of the Securities at the time
outstanding, evidenced as in the Indenture provided, to execute supplemental
indentures adding any provisions to or changing in any manner or eliminating any
of the provisions of the Indenture or of any supplemental indenture or modifying
in any manner the rights of the Holders of the Securities; provided that no such
supplemental indenture shall (a) extend the final maturity of any Security, or
reduce the principal amount thereof or premium, if any, thereon, or reduce the
rate or extend the time of payment of interest thereon, or any premium payable
on the redemption thereof, or change the rate of accrual or extend the time of
payment in connection with Original Issue Discount thereon, or change the place
of payment where, or the coin or currency in which, any principal, premium or
interest is payable, or reduce or alter the method of computation of any amount
payable on redemption, repurchase or repayment thereof (or the time at which
such redemption, repurchase or repayment may be made), or impair or adversely
affect the right of any Securityholder to institute suit for the payment or
conversion thereof or adversely affect the right to convert the Securities into
Class A Common Stock of the Issuer, in each case, without the consent of the
Holder of the Security so affected; provided no consent of any Holder of any
Security will be necessary to permit the Trustee and the Issuer to execute
supplemental indentures under the circumstances provided in Section 7.1(e) and
Section 12.5 of the Indenture, or (b) reduce the aforesaid percentage in
principal amount of Securities, the consent of the Holders of which is required
for any such supplemental indenture, without the consent of the Holders of each
Security so affected, or (c) reduce the percentage of Securities necessary to
consent to waive any past default under the
-7-
<PAGE>
Indenture to less than a majority, without the consent of the Holders of each
Security so affected; or (d) modify any of the provisions of the Indenture
relating to supplemental indentures or waivers of past defaults, except to
increase any percentage provided for in Section 4.10 or Section 7.2 of the
Indenture or to provide that certain other provisions of the Indenture cannot be
modified or waived without the consent of the Holder of each Security affected
thereby.
Subject to the provisions of the Indenture, the Holder of this
Security has the right, at his option, at any time until and including, but not
after the close of business on, October 15, 2009 (except that, in case this
Security or a portion hereof shall be called for redemption and the Issuer shall
not thereafter default in making due provision for the payment of the redemption
price, such right shall terminate with respect to this Security or such portion
hereof at the close of business on the Business Day prior to the date fixed for
redemption), to convert the principal amount of this Security, or any portion
thereof which is $1,000 or an integral multiple of $1,000, into fully paid and
non-assessable shares of Class A Common Stock of the Issuer, as said shares
shall be constituted at the date of conversion, at the conversion price of
$24.00 in Issue Price of Securities for each share of such Class A Common Stock,
or at the adjusted conversion price in effect at the date of conversion if an
adjustment has been made, determined as provided in the Indenture, upon
surrender of this Security to the Issuer at the office or agency of the Issuer
maintained for that purpose in the Borough of Manhattan, The City of New York,
together with a fully executed notice substantially in the form set forth at the
foot hereof that the Holder elects so to convert this Security (or any portion
hereof which is an integral multiple of $1,000 principal amount) and, if this
Security is surrendered for conversion during the period between the close of
business on March 31 or September 30 in any year and the opening of business on
the following April 15 or October 15 and has not been called for redemption on a
redemption date within such period (or on such April 15 or October 15), or
within five days after such period, accompanied by payment of an amount equal to
the interest
-8-
<PAGE>
payable on such April 15 or October 15 on the principal amount of the Security
being surrendered for conversion. Except as provided in the preceding sentence
or as otherwise expressly provided in the Indenture, no payment or adjustment
shall be made on account of interest or Original Issue Discount accrued on this
Security (or portion thereof) so converted or on account of any dividend or
distribution on any such Common Stock issued upon conversion, but the Holder of
record of this Security on March 31 or September 30 shall be entitled to receive
interest on such Security on the succeeding April 15 or October 15
notwithstanding the conversion of such Security prior to such April 15 or
October 15. If so required by the Issuer or the Trustee, this Security, upon
surrender for conversion as aforesaid, shall be duly endorsed by, or be
accompanied by instruments of transfer, in form satisfactory to the Issuer, duly
executed by, the Holder or by his duly authorized attorney. The conversion price
from time to time in effect is subject to adjustment as provided in the
Indenture. No fractions of shares will be issued on conversion. In the sole
discretion of the Board of Directors, any fractional interest may be rounded up
to the nearest full share, or an adjustment in cash will be made for any
fractional interest, in either case in accordance with and as provided in the
Indenture.
No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligation of the Issuer,
which is absolute and unconditional, to pay the principal of and premium, if
any, and interest on this Security at the place, times, and rate, and in the
currency, herein prescribed.
The Securities are issuable only as registered Securities
without coupons in denominations of $1,000 principal amount and any integral
multiple of $1,000.
In the manner and subject to the limitations provided in the
Indenture, this Security may be exchanged for a like aggregate principal amount
of Securities of other authorized denominations.
-9-
<PAGE>
Upon due presentment for registration of transfer of this
Security at the above-mentioned office or agency of the Issuer, a new Security
or Securities of authorized denominations, for a like aggregate principal
amount, will be issued to the transferee as provided in the Indenture. No
service charge shall be made for any such transfer, but the Issuer may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in relation thereto.
The Securities may be redeemed at the option of the Issuer as
a whole, or from time to time in part, on and after October 22, 2003, upon
mailing a notice of such redemption not less than 20 nor more than 60 days prior
to the date fixed for redemption to the Holders of Securities to be redeemed,
all as provided in the Indenture, at the following redemption prices per $1,000
principal amount (which prices reflect accrued Original Issue Discount
calculated to each such date), together in each case with accrued interest to
the date fixed for redemption. The redemption price of a Security redeemed
between such dates would include an additional amount reflecting the additional
Original Issue Discount accrued since the next preceding date in the table to
the actual date fixed for redemption.
(1) (2) (3)
Accrued
Security Issue Original Issue Redemption Price
Redemption Date Price Discount (1) + (2)
- --------------------------------------------------------------------------------
October 22, 2003 $705.20 $ 97.73 $ 802.93
October 15, 2004 $705.20 $125.28 $ 830.48
October 15, 2005 $705.20 $155.14 $ 860.34
October 15, 2006 $705.20 $186.90 $ 892.10
October 15, 2007 $705.20 $220.68 $ 925.88
October 15, 2008 $705.20 $256.60 $ 961.80
October 15, 2009 $705.20 $294.80 $1,000.00
The Securities do not have the benefit of any sinking fund
obligations.
If at any time there shall occur any Change in Control as
defined in the Indenture with respect to the
-10-
<PAGE>
Issuer, each Holder of Securities shall, except as otherwise provided in the
Indenture, have the right, at such Holder's option but subject to the conditions
set forth in the Indenture, to require the Issuer to redeem on the Change in
Control Repurchase Date as defined in the Indenture all or any part of such
Holder's Securities that is $1,000 principal amount or an integral multiple
thereof at a Change in Control Repurchase Price equal to the sum of the Issue
Price thereof plus accrued Original Issue Discount to the Repurchase Date, and
accrued and unpaid interest, if any, up to but excluding the Change in Control
Repurchase Date.
Subject to payment by the Issuer of a sum suffi cient to pay
the amount due on redemption, interest and Original Issue Discount on this
Security (or portion hereof if this Security is redeemed in part) shall cease to
accrue upon the date duly fixed for redemption of this Security (or portion
hereof if this Security is redeemed in part).
Subject to the terms and conditions of the Indenture, the
Issuer shall become obligated to purchase, at the option of the Holder, the
Securities held by such Holder on October 22, 2003 (the "Repurchase Date") at
the Repurchase Price of $802.93 per $1,000 principal amount thereof (equal to
the Issue Price thereof plus accrued Original Issue Discount thereon to the
Repurchase Date), plus accrued and unpaid interest, if any, up to but excluding
the Repurchase Date, upon delivery of a Repurchase Notice containing the
information set forth in the Indenture, at any time from the opening of business
on the date that is 20 Business Days prior to the Repurchase Date until the
close of business on the Repurchase Date and upon delivery of the Securities to
the Paying Agent by the Holder as set forth in the Indenture.
The Repurchase Price may be paid, at the option of the Issuer,
in cash or by the issuance and delivery of shares of Class A Common Stock of the
Issuer, or in any combination thereof.
Holders have the right to withdraw any Repurchase Notice by
delivering to the Paying Agent a written notice of
-11-
<PAGE>
withdrawal in accordance with the provisions of the Indenture.
If cash (and/or securities if permitted under the Indenture)
sufficient to pay the Repurchase Price of all Securities or portions thereof to
be purchased as of the Repurchase Date, is deposited with the Trustee or a
Paying Agent on the Repurchase Date, interest and Original Issue Discount ceases
to accrue on such Securities (or portions thereof) immediately after such
Repurchase Date, and the Holder thereof shall have no other rights as such
(other than the right to receive the Repurchase Price upon surrender of such
Security).
The Holder of this Security and the Class A Common Stock
issuable on the conversion hereof is entitled to the benefits of a Registration
Rights Agreement executed by the Issuer. Whenever in this Security there is a
reference to the payment of interest on, or in respect of, a Security, such
mention shall be deemed to include mention of the payment of liquidated damages
to the extent payable as contemplated in such Registration Rights Agreement.
The Issuer, the Trustee and any authorized agent of the Issuer
or the Trustee may deem and treat the registered Holder hereof as the absolute
owner of this Security (whether or not this Security shall be overdue and
notwithstanding any notation of ownership or other writing hereon made by anyone
other than the Issuer or the Trustee or any authorized agent of the Issuer or
the Trustee), for the purpose of receiving payment of, or on account of, the
principal hereof, accrued Original Issue Discount hereon and premium, if any,
and, subject to the provisions on the face hereof, interest hereon and for all
other purposes, and neither the Issuer nor the Trustee nor any authorized agent
of the Issuer or the Trustee shall be affected by any notice to the contrary.
No recourse shall be had for the payment of the principal of
or premium, if any, or the interest on this Security, for any claim based
hereon, or otherwise in respect hereof, or based on or in respect of the
Indenture
-12-
<PAGE>
or any indenture supplemental thereto, against any incorporator, as such, or
against any past, present or future stockholder, officer or director, as such,
of the Issuer or of any partner or member of the Issuer or of any successor,
either directly or through the Issuer or any successor, whether by virtue of any
constitution, statute or rule of law or by the enforcement of any assessment or
penalty or otherwise, all such liability being, by the acceptance thereof and as
part of the consideration for the issue hereof, expressly waived and released.
The Indenture and this Security shall be governed by and
construed in accordance with the laws of the State of New York.
-13-
<PAGE>
[FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This is one of the Securities described in the
within-mentioned Indenture.
THE BANK OF NEW YORK,
as Trustee
__________________________
Authorized Signatory
-14-
<PAGE>
[FORM OF CONVERSION NOTICE]
To: American Tower Corporation
The undersigned owner of this Security hereby: (i) irrevocably
exercises the option to convert this Security, or the portion hereof below
designated, for shares of Class A Common Stock of American Tower Corporation in
accordance with the terms of the Indenture referred to in this Security and (ii)
directs that such shares of Class A Common Stock deliverable upon the
conversion, together with any check in payment for fractional shares and any
Security(ies) representing any unconverted principal amount hereof, be issued
and delivered to the registered Holder hereof unless a different name has been
indicated below. If shares and/or Security(ies) are to be delivered registered
in the name of a person other than the undersigned, the undersigned will pay all
transfer taxes payable with respect thereto. Any amount required to be paid by
the undersigned on account of interest accompanies this Security.
Dated:
__________________________
Signature
Fill in for registration of shares if to be delivered, and of Securities if to
be issued, otherwise than to and in the name of the registered Holder.
__________________________
Social Security or Other
Taxpayer Identifying Number
_______________________________________
(Name)
_______________________________________
(Street Address)
_______________________________________
(City, State and Zip Code)
(Please print name and address)
Principal Amount to Be Converted:
(if less than all)
$_____________________________
-15-
<PAGE>
[FORM OF OPTION OF HOLDER TO ELECT REDEMPTION
UPON CHANGE IN CONTROL]
If you want to elect to have this Security purchased in its
entirety by the Issuer pursuant to Article Thirteen of the Indenture, check the
box:
/ /
If you want to elect to have only a part of this Security
purchased by the Issuer pursuant to Article Thirteen of the Indenture, state the
principal amount:
$
Dated: Your Signature:____________________
(Sign exactly as name appears
on the face of this Security)
Signature
Guarantee:__________________________________
(Signature must be guaranteed by a member
firm of the New York Stock Exchange or a
commercial bank or trust company)
-16-
EXHIBIT 4.5
REGISTRATION RIGHTS AGREEMENT
Dated as of October 4, 1999
Among
AMERICAN TOWER CORPORATION
as Issuer
and
CREDIT SUISSE FIRST BOSTON CORPORATION
DEUTSCHE BANK SECURITIES INC.
LEHMAN BROTHERS INC.
MORGAN STANLEY & CO. INCORPORATED
BANC OF AMERICA SECURITIES LLC
BEAR, STEARNS & CO. INC.
GOLDMAN, SACHS & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
SALOMON SMITH BARNEY INC.
as Initial Purchasers
<PAGE>
<TABLE>
<CAPTION>
TABLE OF CONTENTS
Page
<S> <C> <C>
1. Definitions.....................................................................................1
2. Shelf Registration..............................................................................5
3. Additional Interest.............................................................................7
4. Registration Procedures.........................................................................9
5. Registration Expenses..........................................................................19
6. Indemnification................................................................................20
7. Rules 144 and 144A.............................................................................24
8. Underwritten Registrations.....................................................................24
9. Representations and Warranties.................................................................25
10. Miscellaneous..................................................................................27
(a) No Inconsistent Agreements............................................................27
(b) Adjustments Affecting Registrable
Securities............................................................................27
(c) Amendments and Waivers................................................................27
(d) Notices...............................................................................28
(e) Successors and Assigns................................................................29
(f) Counterparts..........................................................................29
(g) Headings..............................................................................29
(h) Governing Law.........................................................................29
(i) Severability..........................................................................30
(j) Securities Held by the Company or Its
Affiliates............................................................................30
(k) Third Party Beneficiaries.............................................................30
(l) Entire Agreement......................................................................30
</TABLE>
-i-
<PAGE>
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is dated as of
October 4, 1999, among American Tower Corporation, a Delaware corporation (the
"Company"), and Credit Suisse First Boston Corporation, Deutsche Bank Securities
Inc., Lehman Brothers Inc., Morgan Stanley & Co. Incorporated, Banc of America
Securities LLC, Bear, Stearns & Co. Inc., Goldman, Sachs & Co., Merrill Lynch,
Pierce, Fenner & Smith Incorporated and Salomon Smith Barney Inc. (individually,
an "Initial Purchaser"; together, the "Initial Purchasers").
This Agreement is entered into in connection with the Purchase
Agreement, dated September 28, 1999, between the Company and the Initial
Purchasers (the "Purchase Agreement"), which provides for the issuance and sale
by the Company to the Initial Purchasers of the Company's 6.25% Convertible
Notes Due 2009 ("Standard Notes") and its 2.25% Convertible Notes Due 2009
("Discount Notes" and, collectively, the "Convertible Notes"). In order to
induce the Initial Purchasers to enter into the Purchase Agreement, the Company
has agreed to provide the registration rights set forth in this Agreement for
the benefit of the Initial Purchasers and their direct and indirect transferees
and assigns. The execution and delivery of this Agreement is a condition to the
Initial Purchasers' obligation to purchase the Convertible Notes under the
Purchase Agreement.
The parties hereby agree as follows:
1. Definitions.
As used in this Agreement, the following terms shall have the following
meanings:
Additional Interest: See Section 3(a) hereof.
Advice: See Section 4 hereof.
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Agreement: See the first introductory paragraph hereto.
Amount of Registrable Securities: (a) With respect to Standard Notes
constituting Registrable Securities, their aggregate principal amount, (b) with
respect to Discount Notes constituting Registrable Securities, the aggregate
Issue Price (as defined in the Discount Indenture) of such Discount Notes plus
the accrued Original Issue Discount (as defined in the Discount Indenture)
thereon through the time of computing the Amount of Registrable Securities, (c)
with respect to Underlying Shares constituting Registrable Securities, the
aggregate number of such Underlying Shares multiplied by the Conversion Price
(as defined in the Indenture relating to the Convertible Notes upon the
conversion of which such Underlying Shares were issued) in effect at the time of
computing the Amount of Registrable Securities or, if no such Convertible Notes
are then outstanding, the last Conversion Price that was in effect under such
Indenture when any such Convertible Notes were last outstanding, and (d) with
respect to combinations thereof, the sum of (a), (b) and (c) for the relevant
Registrable Securities.
Certificate Shares: See Section 9 hereof.
Closing Date: A Closing Date as defined in the Purchase Agreement.
Company: See the first introductory paragraph hereto.
Convertible Notes: See the second introductory paragraph hereto.
Damages Payment Date: See Section 3(c) hereof.
Depositary: The Depository Trust Company until a successor is appointed
by the Company.
Discount Indenture: The Indenture, dated as of October 4, 1999, between
the Company and The Bank of New
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York, as Trustee, pursuant to which the Discount Notes are issued, as amended or
supplemented from time to time.
Discount Notes: See the second introductory paragraph hereto.
Effectiveness Date: The 150th day after the Issue Date.
Effectiveness Period: See Section 2 hereof.
Exchange Act: The Securities Exchange Act of 1934, as amended, and the
rules and regulations of the SEC promul gated thereunder.
Filing Date: The 90th day after the Issue Date.
Global Certificate: See Section 9 hereof.
Holder: Any holder of Registrable Securities.
Indemnified Person: See Section 6(c) hereof.
Indemnifying Person: See Section 6(c) hereof.
Indenture: The Standard Indenture or the Discount Indenture, or both,
as the context requires.
Initial Purchaser: See the first introductory paragraph hereto.
Initial Purchasers: See the first introductory paragraph hereto.
Initial Shelf Registration: See Section 2(a) hereof.
Inspectors: See Section 4(n) hereof.
Issue Date: The latest Closing Date on which the Convertible Notes were
issued and sold to the Initial Purchasers pursuant to the Purchase Agreement.
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NASD: See Section 4(q) hereof.
Participant: See Section 6(a) hereof.
Person: An individual, partnership, corporation, limited liability
company, unincorporated association, trust or joint venture, or a governmental
agency or political subdivision thereof.
Prospectus: The prospectus included in any Registra tion Statement
(including, without limitation, any prospectus subject to completion and a
prospectus that includes any information previously omitted from a prospectus
filed as part of an effective registration statement in reliance upon Rule 430A
promulgated under the Securities Act), as amended or supplemented by any
prospectus supplement, and all other amendments and supplements to the
Prospectus, including post-effective amendments, and all material incorporated
by reference or deemed to be incorporated by reference in such Prospectus.
Purchase Agreement: See the second introductory paragraph hereto.
Records: See Section 4(n) hereof.
Registrable Securities: All Convertible Notes and all Underlying Shares
upon original issuance thereof and at all times subsequent thereto until the
earliest to occur of (i) a Registration Statement covering such Convertible
Notes and Underlying Shares has been declared effective by the SEC and such
Convertible Notes and Underlying Shares have been disposed of in accordance with
such effective Registration Statement, (ii) such Convertible Notes and
Underlying Shares are sold in compliance with Rule 144 or could (except with
respect to affiliates of the Company within the meaning of the Securities Act)
be sold in compliance with paragraph (k) of such Rule 144, or (iii) such
Convertible Notes and any Underlying Shares cease to be outstanding.
Registration Default: See Section 3(a) hereof.
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Registration Statement: Any registration statement of the Company filed
with the SEC pursuant to the provisions of this Agreement, including the
Prospectus, amendments and supplements to such registration statement, including
post-effective amendments, all exhibits and all material incorpo rated by
reference or deemed to be incorporated by reference in such registration
statement.
Rule 144: Rule 144 promulgated under the Securities Act, as such Rule
may be amended from time to time, or any similar rule (other than Rule 144A) or
regulation hereafter adopted by the SEC providing for offers and sales of
securities made in compliance therewith resulting in offers and sales by
subsequent holders that are not affiliates of an issuer of such securities being
free of the registration and prospectus delivery requirements of the Securities
Act.
Rule 144A: Rule 144A promulgated under the Securities Act, as such Rule
may be amended from time to time, or any similar rule (other than Rule 144) or
regulation hereafter adopted by the SEC.
Rule 415: Rule 415 promulgated under the Securities Act, as such Rule
may be amended from time to time, or any similar rule or regulation hereafter
adopted by the SEC.
SEC: The Securities and Exchange Commission.
Securities Act: The Securities Act of 1933, as amended, and the rules
and regulations of the SEC promulgated thereunder.
Shelf Registration: See Section 2(b) hereof.
Standard Indenture: The Indenture, dated as of October 4, 1999, between
the Company and The Bank of New York, as Trustee, pursuant to which the Standard
Notes are issued, as amended or supplemented from time to time.
Standard Notes: See the second introductory paragraph hereto.
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Subsequent Shelf Registration: See Section 2(b) hereof.
TIA: The Trust Indenture Act of 1939, as amended, and the rules and
regulations of the SEC promulgated thereunder.
Trustee: The Trustee under the Indenture.
Underlying Shares: The shares of the Company's Class A Common Stock,
par value $.01 per share, issuable upon conversion of the Convertible Notes.
Underwritten registration or underwritten offering: A registration in
which securities of the Company are sold to an underwriter for reoffering to the
public.
2. Shelf Registration
(a) Shelf Registration. The Company shall as
promptly as reasonably practicable file with
the SEC a Registration Statement for an
offering to be made on a continuous basis
pursuant to Rule 415 covering all of the
Registrable Securities (the "Initial Shelf
Registration"). The Company shall use its
reasonable best efforts to file with the SEC
the Initial Shelf Registration on or prior
to the Filing Date. The Initial Shelf
Registration shall be on Form S-3 or another
appropriate form permitting registration of
such Registrable Securities for resale by
Holders in the manner or manners designated
by them (including, without limitation, one
or more underwritten offerings). The Company
shall not permit any securities other than
the Registrable Securities to be included in
the Initial Shelf
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Registration or any Subsequent Shelf
Registration (as defined below). By its
execution hereof on behalf of itself and the
other Initial Purchasers, Credit Suisse
First Boston Corporation also hereby waives
on its own behalf its right under the
Registration Rights Agreement, dated
February 4, 1999, between the Company and
it, to include any securities in a
Registration Statement filed pursuant to
this Agreement.
The Company shall use its reasonable best efforts to cause the Initial
Shelf Registration to be declared effective under the Securities Act on or prior
to the Effectiveness Date and to keep the Initial Shelf Registration
continuously effective under the Securities Act until the date that is 24 months
from the Issue Date (as it may be shortened pursuant to clause (i) or clause
(ii) immediately following, the "Effectiveness Period"), or such shorter period
ending when (i) all the shares of Registrable Securities covered by the Initial
Shelf Registration have been sold in the manner set forth and as contemplated in
the Initial Shelf Registration, (ii) the date on which all the Registrable
Securities (x) held by persons who are not affiliates of the Company may be
resold pursuant to Rule 144(k) under the Securities Act or (y) cease to be
outstanding, or (iii) a Subsequent Shelf Registration covering all of the
Registrable Securities has been declared effective under the Securities Act.
(b) Subsequent Shelf Registrations. If the
Initial Shelf Registration or any Subsequent
Shelf Registration ceases to be effective
for any reason at any time during the
Effectiveness Period (other than because of
the sale of all of the securities registered
thereunder),
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the Company shall use its reasonable best
efforts to obtain the prompt withdrawal of
any order suspending the effectiveness
thereof, and in any event shall within 45
days of such cessation of effectiveness
amend the Initial Shelf Registration in a
manner to obtain the withdrawal of the order
suspending the effectiveness thereof, or
file an additional "shelf" Registration
Statement pursuant to Rule 415 covering all
of the Registrable Securities (a "Subsequent
Shelf Registration"). If a Subsequent Shelf
Registration is filed, the Company shall use
its reasonable best efforts to cause the
Subsequent Shelf Registration to be declared
effective under the Securities Act as soon
as practicable after such filing and to keep
such Registration Statement continuously
effective for the remainder of the
Effectiveness Period. As used herein the
term "Shelf Registration" means the Initial
Shelf Registration and any Subsequent Shelf
Registration.
(c) Supplements and Amendments. The Company
shall promptly supplement and amend the
Shelf Registration if required by the rules,
regulations or instructions applicable to
the registration form used for such Shelf
Registration, if required by the Securities
Act, or if reasonably requested by the
Holders of a majority of the Amount of
Registrable Securities covered by such
Registration Statement or
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by any underwriter of such Registrable
Securities.
3. Additional Interest
(a) The Company and the Initial Purchasers agree
that the Holders of Convertible Notes will
suffer damages if the Company fails to
fulfill its obligations under Section 2
hereof and that it would not be feasible to
ascertain the extent of such damages with
precision. Accordingly, the Company agrees
to pay, as liquidated damages, additional
interest on the Registrable Securities
("Additional Interest") as follows if any of
the following events occur (each such event
in clauses (i) through (iii) below a
"Registration Default"):
(i) If on or prior to the Filing Date, the Initial Shelf
Registration has not been filed with the SEC;
(ii) If on or prior to the Effectiveness Date, the Initial Shelf
Registration has not been declared effective by the SEC; or
(iii) If after the Initial Shelf Registration is declared effective
(A) the Initial Shelf Registration thereafter ceases to be
effective and a Subsequent Shelf Registration covering the
Registrable Securities has not become effective or (B) a Shelf
Registration or the related prospectus ceases to be usable
(except as permitted in Section 3(b) hereof) in connection
with resales of Registrable Securities during the periods
specified herein because either (1) any event occurs as a
result of which the
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related prospectus forming part of such Shelf Registration
would include any untrue statement of a material fact or omit
to state any material fact necessary to make the statements
therein in the light of the circumstances under which they
were made not misleading, or (2) it shall be necessary to
amend such Shelf Registration or supplement the related
prospectus, to comply with the Securities Act or the Exchange
Act or the respective rules thereunder.
Additional Interest shall accrue on outstanding Convertible Notes
constituting Registrable Securities over and above the interest set forth in the
title of the Convertible Notes and shall accrue on outstanding Underlying Shares
constituting Registrable Securities, in each case from and including the date on
which any such Registration Default shall occur to but excluding the date on
which all such Registration Defaults have been cured, at a rate of 0.50% per
annum of the Amount of such Registrable Securities. The Company shall notify the
Trustee within one business day after each and every date on which a
Registration Default occurs.
(b) A Registration Default referred to in
Section 3(a)(iii)(B) hereof shall be deemed
not to have occurred and be continuing in
relation to the Shelf Registration or the
related prospectus if (i) such Registration
Default has occurred solely as a result of
(x) the filing of a post-effective amendment
to such Shelf Registration to incorporate
annual audited financial information with
respect to the Company where such
post-effective amendment is not yet
effective and needs to be declared effective
to permit Holders to use the related
prospectus or (y) other material events with
respect to the
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Company that would need to be described in
such Shelf Registration or the related
prospectus and (ii) in the case of clause
(y), the Company is proceeding promptly and
in good faith to amend or supplement such
Shelf Registration and related prospectus to
describe such events; provided, however,
that in any case if such Registration
Default occurs for a continuous period in
excess of 30 days, Additional Interest shall
be payable in accordance with Section 3(a)
hereof from the day such Registration
Default occurs until such Registration
Default is cured.
(c) Any amount of Additional Interest due
pursuant to clause (i), (ii) or (iii) of
Section 3(a) hereof will be payable in cash
on each April 15 and October 15 (a "Damages
Payment Date") to the Holder to whom regular
interest is payable on such Damages Payment
Date with respect to Convertible Notes that
are Registrable Securities and to the Person
that is a registered Holder 15 days prior to
such Damages Payment Date with respect to
Underlying Shares that are Registrable
Securities. The amount of Additional
Interest for Registrable Securities will be
determined by multiplying the applicable
Additional Interest rate by the Amount of
such Registrable Securities on the Damages
Payment Date following such Registration
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Default in the case of the first such
payment of Additional Interest with respect
to a Registration Default (and thereafter at
the next succeeding Damages Payment Date
until the cure of such Registration
Default), multiplied by a fraction, the
numerator of which is the number of days
such Additional Interest rate was applicable
during such period (determined on the basis
of a 360-day year comprised of twelve 30-day
months), and the denominator of which is
360.
4. Registration Procedures
In connection with the filing of any Registration Statement pursuant to
Section 2 hereof, the Company shall effect such registrations to permit the sale
of the securities covered thereby in accordance with the intended method or
methods of disposition thereof, and pursuant thereto and in connection with any
Registration Statement filed by the Company hereunder the Company shall:
(a) Prepare and file with the SEC prior to the
Filing Date, a Registration Statement or
Registration Statements as prescribed by
Section 2 hereof, and use its reasonable
best efforts to cause each such Registration
Statement to become effective and remain
effective as provided herein; provided,
however, that the Company shall furnish to
and afford the Holders of the Registrable
Securities covered by such Registration
Statement, their counsel and the managing
underwriters, if any, a reasonable
opportunity to review copies of all
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such documents (including copies of any
documents to be incorporated by reference
therein and all exhibits thereto) proposed
to be filed (in each case where possible at
least five business days prior to such
filing and where not possible as promptly as
possible). The Company shall not file any
Registration Statement or Pro spectus or any
amendments or supplements thereto if the
Holders of a majority in Amount of the
Registrable Securities covered by such
Registration Statement, their counsel, or
the managing underwriters, if any, shall
reasonably object.
(b) Prepare and file with the SEC such
amendments and post-effective amendments to
each Shelf Registration, as may be necessary
to keep such Registration Statement
continuously effective for the Effectiveness
Period; cause the related Prospectus to be
supplemented by any Prospectus supplement
required by applicable law, and as so
supplemented to be filed pursuant to Rule
424 (or any similar provisions then in
force) promulgated under the Securities Act;
and comply with the provisions of the Secu
rities Act and the Exchange Act applicable
to it with respect to the disposition of all
securities covered by such Registration
Statement as so amended or in such
Prospectus as so supplemented. The Company
shall be deemed not to have used its
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reasonable best efforts to keep a
Registration Statement effective during the
Effectiveness Period if it voluntarily takes
any action that would result in selling
Holders of the Registrable Securities
covered thereby not being able to sell such
Registrable Securities during that period
unless such action is required by applicable
law or unless the Company complies with this
Agreement, including without limitation the
provisions of Section 4(k) hereof and the
last paragraph of Section 4(t) hereof.
(c) Notify the selling Holders of shares of
Registrable Securities, their counsel and
the managing underwriters, if any, promptly
(but in any event within two business days),
and confirm such notice in writing, (i) when
a Prospectus or any prospectus supplement or
post-effective amendment has been filed,
and, with respect to a Reg istration
Statement or any post-effective amendment,
when the same has become effective under the
Securities Act (including in such notice a
written statement that any Holder may, upon
request, obtain, at the sole expense of the
Company, one conformed copy of such
Registration Statement or post-effective
amendment including financial statements and
schedules, documents incorporated or deemed
to be incorporated by reference and
exhibits), (ii) (A) of the receipt of any
written comments by the SEC
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or its staff, (B) of the request by the SEC
or its staff for amendments or supplements
to a Registration Statement or a Prospectus,
or (C) of the issuance by the SEC of any
stop order suspending the effectiveness of a
Registration Statement or of any order
preventing or suspending the use of any
preliminary prospectus or the initiation of
any proceedings for that purpose, (iii) if
at any time when a prospectus is required by
the Securities Act to be delivered in
connection with sales of the Registrable
Securities the representations and
warranties of the Company contained in any
agreement (including any underwriting
agreement), contemplated by Section 4(m)
hereof cease to be true and correct in all
material respects, (iv) of the happening of
any event, the existence of any condition or
any information becoming known that makes
any statement made in such Registration
Statement or related Prospectus or any
document incorporated or deemed to be
incorporated therein by reference untrue in
any material respect or that requires the
making of any changes in or amendments or
supplements to such Registration Statement,
Prospectus or documents so that, in the case
of the Registration Statement, it will not
contain any untrue statement of a material
fact or omit to state any material fact
required to be stated therein or necessary
to make the
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statements therein not misleading, and that
in the case of the Prospectus, it will not
contain any untrue statement of a material
fact or omit to state any material fact
required to be stated therein or necessary
to make the statements therein, in the light
of the circumstances under which they were
made, not misleading and (v) of the
Company's determination that a
post-effective amendment to a Registration
Statement would be appropriate.
(d) Use its reasonable best efforts to prevent
the issuance of any order suspending the
effectiveness of a Registration Statement or
of any order preventing or suspending the
use of a Prospectus and, if any such order
is issued, to use its reasonable best
efforts to obtain the withdrawal of any such
order at the earliest possible moment.
(e) If requested by the managing underwriter or
underwriters (if any), or the Holders of a
majority in Amount of the Registrable
Securities being sold in connection with an
underwritten offering, (i) promptly
incorporate in a prospectus supplement or
post-effective amendment such information as
the managing underwriter or underwriters (if
any), such Holders or counsel for any of
them determine is reasonably necessary to be
included therein, (ii) make all required
filings of
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such prospectus supplement or such
post-effective amendment as soon as
reasonably practicable after the Company has
received notification of the matters to be
incorporated in such prospectus supplement
or post-effective amendment and (iii)
supplement or make amendments to such
Registration Statement.
(f) Furnish to each selling Holder of
Registrable Securities and to counsel and
each managing underwriter, if any, at the
sole expense of the Company, one conformed
copy of the Registration Statement or
Registration Statements and each
post-effective amendment thereto, including
financial statements and schedules, and, if
requested, all documents incorporated or
deemed to be incorporated therein by
reference and all exhibits.
(g) Deliver to each selling Holder of
Registrable Securities, their respective
counsel, and the underwriters, if any, at
the sole expense of the Company, as many
copies of the Prospectus (including each
form of preliminary prospectus) and each
amendment or supplement thereto and any
documents incorporated by reference therein
as such Persons may reasonably request; and,
subject to the second paragraph of Section
4(t) hereof, the Company hereby consents to
the use of such Prospectus and each
amendment or supplement thereto by each of
the
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selling Holders of Registrable Securities
and the underwriters or agents, if any, and
dealers (if any), in connection with the
offering and sale of the Registrable
Securities covered by such Prospectus and
any amendment or supplement thereto.
(h) Prior to any public offering of Registrable
Securities, to use its reasonable best
efforts to register or qualify, to the
extent required by applicable law, and to
cooperate with the selling Holders of
Registrable Securities, the managing
underwriter or underwriters, if any, and
their respective counsel in connection with
the registration or qualification (or
exemption from such registration or
qualification) of such Registrable
Securities or offer and sale under the
securities or Blue Sky laws of such
jurisdictions within the United States as
any selling Holder, or the managing
underwriter or underwriters reasonably
request; provided, however, that where
Registrable Securities are offered other
than through an underwritten offering, the
Company agrees to cause the Company's
counsel to perform Blue Sky investigations
and file registrations and qualifications
required to be filed pursuant to this
Section 4(h); keep each such registration or
qualification (or exemption therefrom)
effective during the period such
Registration Statement
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is required to be kept effective and do any
and all other acts or things reasonably
necessary or advisable to enable the
disposition in such jurisdictions of the
Registrable Securities covered by the
applicable Registration Statement; provided,
however, that the Company shall not be
required to qualify as a foreign corporation
or to execute a general consent to service
of process in any jurisdiction or subject
itself to taxation generally in any
jurisdiction.
(i) Cooperate with the selling Holders of
Registrable Securities and the managing
underwriter or underwriters, if any, to
facilitate the timely preparation and
delivery of certificates representing shares
of Registrable Securities to be sold, which
certificates shall not bear any restrictive
legends and shall be in a form eligible for
deposit with The Depository Trust Company;
and enable such shares of Registrable
Securities to be in such denominations and
registered in such names as the managing
underwriter or underwriters, if any, or
Holders may reasonably request.
(j) Use its reasonable best efforts to cause the
Registrable Securities covered by the Shelf
Registration Statement to be registered with
or approved by such other governmental
agencies or authorities as may be necessary
to
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enable the seller or sellers thereof or the
underwriter or underwriters, if any, to
consummate the disposition of such
Registrable Securities, except as may be
required solely as a consequence of the
nature of such selling Holder's business, in
which case the Company will cooperate in all
reasonable respects with the filing of such
Registration Statement and the granting of
such approvals.
(k) Upon the occurrence of any event
contemplated by paragraph 4(c)(ii)(C),
4(c)(iv) or 4(c)(v) hereof, as promptly as
practicable prepare and (subject to Section
4(a) hereof) file with the SEC, at the sole
expense of the Company, a supplement or
post-effective amendment to the Registration
Statement or a supplement to the related
Prospectus or any document incorporated or
deemed to be incorporated therein by
reference, or file any other required
document so that, as thereafter delivered to
the purchasers of the Registrable Securities
being sold thereunder, any such Prospectus
will not contain an untrue statement of a
material fact or omit to state a material
fact required to be stated therein or
necessary to make the statements therein, in
the light of the circumstances under which
they were made, not misleading; provided,
however, that the Company may delay
preparing, filing and distributing any such
supplement or amendment (and continue the
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suspension of the use of the Prospectus) if
the Company determines in good faith that
such supplement or amendment would, in the
reasonable judgment of the Company, (i)
interfere with or affect the negotiation or
completion of a transaction that is being
contemplated by the Company (whether or not
a final decision has been made to undertake
such transaction) or (ii) involve initial or
continuing disclosure obligations that are
not in the best interests of the Company's
shareholders at such time; provided,
further, that neither such delay nor such
suspension with respect to all matters in
clause (i) or (ii) shall extend for a period
of more than 30 days in any three-month
period or more than 90 days for all such
periods in any twelve-month period and shall
not affect the Company's obligation to pay
Additional Interest as contemplated in
Section 3.
(l) Prior to the effective date of the first
Regis tration Statement relating to the
Registrable Securities, (i) provide the
Trustee with certificates for the Regis
trable Securities in a form eligible for
deposit with The Depository Trust Company
and (ii) provide a CUSIP number for the
Registrable Securities.
(m) In connection with any underwritten offering
of Registrable Securities pursuant to
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a Shelf Registration, enter into an
underwriting agreement as is customary in
underwritten offerings of securities similar
to the Registrable Securities and take all
such other actions as are reasonably
requested by the managing underwriter or
underwriters; in order to expedite or
facilitate the registration or the
disposition of such Registrable Securities
and, in such connection, (i) make such
representations and warranties to, and
covenants with, the underwriters with
respect to the business of the Company and
its subsidiaries (including any acquired
business, properties or entity, if
applicable) and the Registration Statement,
Prospectus and documents, if any,
incorporated or deemed to be incorporated by
reference therein, in each case, as are
customarily made by issuers to underwriters
in underwritten offerings of securities
similar to the Registrable Securities and
confirm the same in writing if and when
requested; (ii) obtain the written opinion
of counsel to the Company and written
updates thereof in form, scope and substance
reasonably satisfactory to the managing
underwriter or underwriters, addressed to
the underwriters covering the matters
customarily covered in opinions requested in
underwritten offerings of securities similar
to the Registrable Securities and such other
matters as may be reasonably requested by
the managing
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underwriter or underwriters; (iii) obtain
"cold comfort" letters and updates thereof
in form, scope and substance reasonably
satisfactory to the managing underwriter or
underwriters from the independent certified
public accountants of the Company (and, if
necessary, any other independent certified
public accountants of any subsidiary of the
Company or of any business acquired by the
Company for which financial statements and
financial data are, or are required to be,
included or incorporated by reference in the
Registration Statement), addressed to each
of the underwriters, such letters to be in
customary form and covering matters of the
type customarily covered in "cold comfort"
letters in con nection with underwritten
offerings of securities similar to the
Registrable Securities and such other
matters as reasonably requested by the
managing underwriter or underwriters; and
(iv) if an underwriting agreement is entered
into, the same shall contain indemnification
provisions and procedures no less favorable
than those set forth in Section 6 hereof (or
such other provisions and procedures
acceptable to Holders of a majority in
Amount of Registrable Securities covered by
such Registration Statement and the managing
underwriter or underwriters or agents) with
respect to all parties to be indemnified
pursuant to said Section. The above shall be
done
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at each closing under such underwriting
agreement, or as and to the extent required
thereunder.
(n) Make available for inspection by any selling
Holder of such Registrable Securities being
sold, any underwriter participating in any
such disposition of Registrable Securities,
if any, and any attorney, accountant or
other agent retained by any such selling
Holder, or underwriter (collectively, the
"Inspectors"), at the offices where normally
kept, during reasonable business hours at
such time or times as shall be mutually
convenient for the Company and the
Inspectors as a group, all financial and
other records, pertinent corporate documents
and instruments of the Company and its
subsidiaries (collectively, the "Records")
as shall be reasonably necessary to enable
them to exercise any applicable due
diligence responsibilities, and cause the
officers, directors and employees of the
Company and its subsidiaries to supply all
information reasonably requested by any such
Inspector in connection with such
Registration Statement. Records that the
Company determines, in good faith, to be
confidential and any Records that it
notifies the Inspectors are confidential
shall not be disclosed by any Inspector
unless (i) the disclosure of such Records is
necessary to avoid or correct a
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material misstatement or material omission
in such Registration Statement, (ii) the
release of such Records is ordered pursuant
to a subpoena or other order from a court of
competent jurisdiction, (iii) disclosure of
such information is, in the opinion of
counsel for any Inspector, necessary or
advisable in connection with any action,
claim, suit or proceeding, directly,
involving or potentially involving such
Inspector and arising out of, based upon,
relating to, or involving this Agreement or
any transactions contemplated hereby or
arising hereunder or (iv) the information in
such Records has been made generally
available to the public other than through
the acts of such Inspector. Each selling
Holder of such Registrable Securities will
be required to agree that information
obtained by it as a result of such
inspections shall be deemed confidential and
shall not be used by it as the basis for any
market transactions in the securities of the
Company unless and until such information is
generally available to the public. Each
selling Holder of such Registrable
Securities will be required to further agree
that it will, upon learning that disclosure
of such Records is sought in a court of
competent jurisdiction, give notice to the
Company and allow the Company to undertake
appropriate action to prevent disclosure of
the Records deemed
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<PAGE>
confidential at the Company's sole expense.
(o) Provide (A) the Holders of the Registrable
Securities to be included in such
registration statement and not more than one
counsel for all the Holders of such
Registrable Securities, (B) the underwriters
(which term, for purposes of this
Registration Rights Agreement, shall include
a person deemed to be an underwriter within
the meaning of Section 2(11) of the
Securities Act), if any, thereof, (C) the
sales or placement agent, if any, thereof,
and (D) one counsel for such underwriters or
agents, reasonable opportunity to
participate in the preparation of such
registration statement, each prospectus
included therein or filed with the SEC, and
each amendment or supplement thereto.
(p) Comply with all applicable rules and
regulations of the SEC and make generally
available to its securityholders earning
statements satisfying the provisions of
Section 11(a) of the Securities Act and Rule
158 thereunder (or any similar rule
promulgated under the Securities Act) no
later than 45 days after the end of any
12-month period (or 90 days after the end of
any 12-month period if such period is a
fiscal year) (i) commencing at the end of
any fiscal quarter in which Registrable
Securities are sold to underwriters in a
firm commitment or best efforts
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<PAGE>
underwritten offering and (ii) if not sold
to underwriters in such an offering,
commencing on the first day of the first
fiscal quarter of the Company after the
effective date of a Registration Statement,
which statements shall cover said 12-month
periods.
(q) Cooperate with each seller of Registrable
Securities covered by any Registration
Statement and each underwriter, if any,
participating in the disposition of such
Registrable Securities and their respective
counsel in connection with any filings
required to be made with the National
Association of Securities Dealers, Inc. (the
"NASD"), including if the Rules of Fair
Practice and the ByLaws of the NASD or any
successor thereto, as amended from time to
time (including Schedule E thereto) so
require, engaging a "qualified independent
underwriter" ("QIU") as contemplated therein
and making Records available to such QIU as
though it were a participating underwriter
for the purposes of Section 4(n) and
otherwise applying the provisions of this
Agreement to such QIU (including
indemnification) as though it were a
participating underwriter.
(r) Cause the Indenture to be qualified under
the TIA not later than the effective date of
the first Registration Statement relating to
the Registrable Securities; and in
connection
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<PAGE>
therewith, cooperate with the Trustee and
the Holders of the Registrable Securities to
effect such changes to the Indenture as may
be required for the Indenture to be so
qualified in accordance with the terms of
the TIA; and execute, and use its reasonable
best efforts to cause the Trustee to
execute, all documents as may be required to
effect such changes, and all other forms and
documents required to be filed with the SEC
to enable the Indenture to be so qualified
in a timely manner.
(s) Use its reasonable best efforts to cause the
Registrable Securities covered by a
Registration Statement, to be rated with the
appropriate rating agencies, if so requested
by the Holders of a majority in Amount of
Registrable Securities covered by such
Registration Statement, or the managing
underwriter or underwriters, if any.
(t) Use its reasonable best efforts to take all
other steps necessary or advisable to effect
the registration of the Registrable
Securities covered by a Registration
Statement contemplated hereby.
The Company may require each seller of Registrable Securities as to
which any registration is being effected to furnish to the Company such
information regarding such seller and the distribution of such Registrable
Securities as the Company may, from time to time, reasonably request to the
extent necessary or advisable to comply with the
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Securities Act. The Company may exclude from such registration the Registrable
Securities of any seller who unreasonably fails to furnish such information
within a reasonable time after receiving such request. Each seller as to which
any Shelf Registration is being effected agrees to furnish promptly to the
Company all information required to be disclosed in order to make the
information previously furnished to the Company by such seller not materially
misleading or to omit to state any material fact required to be stated therein
or necessary to make the statements therein not misleading in light of the
circumstances under which they were made.
Each Holder of Registrable Securities agrees by acquisition of such
Registrable Securities that, upon actual receipt of any notice from the Company
of the happening of any event of the kind described in Section 4(c)(ii)(C),
4(c)(iv) or 4(c)(v) hereof, such Holder will forthwith discontinue disposition
of such Registrable Securities covered by such Registration Statement or
Prospectus until such Holder's receipt of the copies of the supplemented or
amended Prospectus contemplated by Section 4(k) hereof, or until it is advised
in writing (the "Advice") by the Company that the use of the applicable
Prospectus may be resumed, and has received copies of any amendments or
supplements thereto.
5. Registration Expenses
(a) All fees and expenses incident to the
performance of or compliance with this
Agreement by the Company shall be borne by
the Company whether or not a Shelf
Registration is filed or becomes effective,
including, without limitation, (i) all
registration and filing fees (including,
without limitation, (A) fees with respect to
filings required to be made with the NASD in
connection with an underwritten offering and
(B) fees and expenses
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of compliance with state securities or Blue
Sky laws (including, without limitation,
reasonable fees and disbursements of counsel
in connection with Blue Sky qualifications
of the Registrable Securities and
determination of the eligibility of the
Registrable Securities for investment under
the laws of such jurisdictions as provided
in Section 4(h) hereof, in the case of
Registrable Securities), (ii) printing
expenses, including, without limitation,
expenses of printing certificates for
Registrable Securities in a form eligible
for deposit with The Depository Trust
Company and of printing prospectuses if the
printing of prospectuses is requested by the
managing underwriter or underwriters, if
any, by the Holders of a majority of shares
of the Registrable Securities included in
any Registration Statement, (iii) messenger,
telephone and delivery expenses, (iv) fees
and disbursements of counsel for the Company
and fees and disbursements of special
counsel for the sellers of Registrable
Securities (subject to the provisions of
Section 5(b) hereof), (v) fees and
disbursements of all independent certified
public accountants referred to in Section
4(m)(iii) hereof (including, without
limitation, the expenses of any special
audit and "cold comfort" letters required by
or incident to such performance), (vi)
rating agency fees, (vii)
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Securities Act liability insurance, if the
Company desires such insurance, (viii) fees
and expenses of all other Persons retained
by the Company, (ix) internal expenses of
the Company (including, without limitation,
all salaries and expenses of officers and
employees of the Company performing legal or
accounting duties), (x) the expense of any
annual audit, (xi) the fees and expenses
incurred in connection with the listing of
the securities to be registered on any
securities exchange, if applicable, and
(xii) the expenses relating to printing,
word processing and distributing all
Registration Statements, underwriting
agreements, securities sales agreements,
indentures and any other documents necessary
in order to comply with this Agreement.
(b) The Company shall reimburse the Holders of
the Registrable Securities being registered
in a Shelf Regis tration for the reasonable
fees and disbursements of not more than one
counsel (in addition to appropriate local
counsel) chosen by the Holders of a majority
in Amount of the Registrable Securities to
be included in such Registration Statement
and other reasonable out-of-pocket expenses
of such Holders of Registrable Securities
incurred in connection with the registration
and sale of the Registrable Securities
pursuant to any Registration Statement.
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<PAGE>
6. Indemnification
(a) The Company will indemnify and hold harmless
each Holder of Registrable Securities, each
Person that participates as an underwriter
or sales agent in any sale of such
Registrable Securities (each a
"Participant") against any losses, claims,
damages or liabilities, joint or several, to
which such Participant may become subject,
under the Securities Act or the Exchange Act
or otherwise, insofar as such losses,
claims, damages or liabilities (or actions
in respect thereof) arise out of or are
based upon any untrue statement or alleged
untrue statement of any material fact
contained in any Registration Statement or
Prospectus, or any amendment or supplement
thereto or any related preliminary
prospectus or arise out of or are based upon
the omission or alleged omission to state
therein a material fact necessary in order
to make the statements therein, in the light
of the circumstances under which they were
made, not misleading, and will reimburse
each Purchaser for any legal or other
expenses reasonably incurred by such
Purchaser in connection with investigating
or defending any such loss, claim, damage,
liability or action as such expenses are
incurred; provided, however, that the
Company will not be liable in any such case
to the extent that any such loss, claim,
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<PAGE>
damage or liability arises out of or is
based upon an untrue statement or alleged
untrue statement in or omission or alleged
omission from any of such documents in
reliance upon and in conformity with written
information furnished to the Company by any
Participant specifically for use therein;
provided, further, that the Company will not
be liable if such untrue statement or
omission or alleged untrue statement or
omission was contained or made in any
preliminary prospectus and corrected in the
Prospectus or any amendment or supplement
thereto and the Prospectus does not contain
any other untrue statement or omission or
alleged untrue statement or omission of a
material fact that was the subject matter of
the related proceeding and any such loss,
liability, claim, damage or expense suffered
or incurred by the Participants resulted
from any action, claim or suit by any Person
who purchased Registrable Securities that is
the subject thereof from such Participant
and it is established in the related
proceeding that such Participant failed to
deliver or provide a copy of the Prospectus
(as amended or supplemented) to such Person
with or prior to the confirmation of the
sale of such Registrable Securities sold to
such Person if required by applicable law,
unless such failure to deliver or provide a
copy of the Prospectus (as amended or
supplemented) was a result of
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<PAGE>
noncompliance by the Company with Section 4
of this Agreement.
(b) The Company may require, as a condition to
including Registrable Securities in any
Registration Statement, that the related
Participants agree severally and not jointly
to indemnify and hold harmless the Company
against any losses, claims, damages or
liabilities to which the Company may become
subject, under the Securities Act or the
Exchange Act or otherwise, insofar as such
losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or
are based upon any untrue statement or
alleged untrue statement of any material
fact contained in any Registration Statement
or Prospectus, or any amendment or
supplement thereto, or any related
prospectus, or arise out of or are based
upon the omission or the alleged omission to
state therein a material fact necessary in
order to make the statements therein, in the
light of the circumstances under which they
were made, not misleading, in each case to
the extent, but only to the extent, that
such untrue statement or alleged untrue
statement or omission or alleged omission
was made in reliance upon and in conformity
with written information furnished to the
Company by such Participant specifically for
use therein, and will reimburse any legal or
other expenses reasonably incurred by the
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<PAGE>
Company in connection with investigating or
defending any such loss, claim, damage,
liability or action as such expenses are
incurred. The liability of any Participant
under this subsection shall in no event
exceed the net proceeds received by such
Participant from sales of Registrable
Securities giving rise to such obligations.
(c) Promptly after receipt by an indemnified
party under this Section of notice of the
commencement of any action, such indemnified
party will, if a claim in respect thereof is
to be made against the indemnifying party
under subsection (a) or (b) above, notify
the indemnifying party of the commencement
thereof; but the omission so to notify the
indemnifying party will not relieve it from
any liability which it may have to any
indemnified party other wise than under
subsection (a) or (b) above. In case any
such action is brought against any
indemnified party and it notifies the
indemnifying party of the commencement
thereof, the indemnifying party will be
entitled to participate therein and, to the
extent that it may wish, jointly with any
other indemnifying party similarly notified,
to assume the defense thereof, with counsel
satisfactory to such indemnified party (who
shall not, except with the consent of the
indemnified party, be counsel to the
indemnifying party), and after
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<PAGE>
notice from the indemnifying party to such
indemnified party of its election so to
assume the defense thereof, the indemnifying
party will not be liable to such indemnified
party under this Section for any legal or
other expenses subsequently incurred by such
indemnified party in connection with the
defense thereof other than reasonable costs
of investigation. No indemnifying party
shall, without the prior written consent of
the indemnified party, effect any settlement
of any pending or threatened action in
respect of which any indemnified party is or
could have been a party and indemnity could
have been sought hereunder by such
indemnified party unless such settlement
includes an unconditional release of such
indemnified party from all liability on any
claims that are the subject matter of such
action.
(d) If the indemnification provided for in this
Section is unavailable or insufficient to
hold harmless an indemnified party under
subsection (a) or (b) above, then each
indemnifying party shall contribute to the
amount paid or payable by such indemnified
party as a result of the losses, claims,
damages or liabilities referred to in
subsection (a) or (b) above (i) in such
proportion as is appropriate to reflect the
relative benefits received by the Company on
the one hand and the Participants on the
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<PAGE>
other from the offering of the Registrable
Securities or (ii) if the allocation
provided by clause (i) above is not
permitted by applicable law, in such
proportion as is appropriate to reflect not
only the relative benefits referred to in
clause (i) above but also the relative fault
of the Company on the one hand and the
Participants on the other in connection with
the statements or omissions which resulted
in such losses, claims, damages or
liabilities as well as any other relevant
equitable considerations. The relative
benefits received by the Company on the one
hand and any Participant on the other shall
be deemed to be in the same proportion as
the total net proceeds from the initial
offering of the Registrable Securities
(before deducting expenses) received by the
Company bear to the total net proceeds
received by such Participant from sales of
Registrable Securities giving rise to such
obligations. The relative fault shall be
determined by reference to, among other
things, whether the untrue or alleged untrue
statement of a material fact or the omission
or alleged omission to state a material fact
relates to information supplied by the
Company or such Participant and the parties'
relative intent, knowledge, access to
information and opportunity to correct or
prevent such untrue statement or omission.
The amount paid by an indemnified
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<PAGE>
party as a result of the losses, claims,
damages or liabilities referred to in the
first sentence of this subsection (d) shall
be deemed to include any legal or other
expenses reasonably incurred by such
indemnified party in connection with
investigating or defending any action or
claim which is the subject of this
subsection (d). Notwithstanding the
provisions of this subsection (d), no
Participant shall be required to contribute
any amount in excess of the amount by which
the net proceeds received by such
Participant from sales of Registrable
Securities exceeds the amount of any damages
which such Participant has otherwise been
required to pay by reason of such untrue or
alleged untrue statement or omission or
alleged omission. No person guilty of
fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall
be entitled to contribution from any person
who was not guilty of such fraudulent
misrepresentation. The Participants'
obligations in this subsection (d) to
contribute are several in proportion to
their respective Amounts of Registrable
Securities registered pursuant to this
Agreement, and not joint.
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<PAGE>
(e) The obligations of the Company under this
Section shall be in addition to any
liability which the Company may otherwise
have and shall extend, upon the same terms
and conditions, to each officer, director
and partner of each Participant and to each
Person, if any, who controls any Participant
within the meaning of the Securities Act or
the Exchange Act; and the obligations of the
Participant under this Section shall be in
addition to any liability which the
respective Participants otherwise have and
shall extend, upon the same terms and
conditions, to each officer and director of
the Company and to each Person, if any, who
controls the Company within the meaning of
the Securities Act or the Exchange Act.
7. Rules 144 and 144A.
The Company covenants that it will file the reports required to be
filed by it under the Securities Act and the Exchange Act and the rules and
regulations adopted by the SEC thereunder in a timely manner in accordance with
the requirements of the Securities Act and the Exchange Act and such rules and
regulations and, if at any time the Company is not required to file such
reports, it will, upon the request of any Holder of Registrable Securities, make
publicly available annual reports and such information, documents and other
reports of the type specified in Sections 13 and 15(d) of the Exchange Act. The
Company further covenants for so long as any Registrable Securities remain
outstanding, to make available to any Holder or beneficial owner of Registrable
Securities in connection with any sale thereof and any prospective purchaser of
such Registrable Securities from such Holder or beneficial owner, the
information required by Rule 144A(d)(4) under the
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<PAGE>
Securities Act in order to permit resales of such Registrable Securities
pursuant to Rule 144A.
8. Underwritten Registrations.
If any of the Registrable Securities covered by any Shelf Registration
is to be sold in an underwritten offer ing, the investment banker or investment
bankers and manager or managers that will manage the offering will be selected
by the Holders of a majority in Amount of such Registrable Securities included
in such offering and reasonably acceptable to the Company.
No Holder of Registrable Securities may participate in any underwritten
registration hereunder unless such Holder (a) agrees to sell such Holder's
Registrable Securities on the basis provided in any underwriting arrangements
approved by the Persons entitled hereunder to approve such arrangements and (b)
completes and executes all questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents required under the terms of such
underwriting arrangements.
9. Representations and Warranties.
The Company represents and warrants to, and agrees with, each Purchaser
and each of the Holders from time to time of Registrable Securities that:
(a) Each registration statement covering
Registrable Securities and each prospectus
(including any preliminary or summary
prospectus) contained therein or furnished
pursuant to this Agreement and any further
amendments or supplements to any such
registration statement or prospectus, when
it becomes effective or is filed with the
SEC, as the case may be, and, in the case of
an underwritten offering of Registrable
Securities, at the time
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<PAGE>
of the closing under the underwriting
agreement relating thereto, will conform in
all material respects to the requirements of
the Securities Act and the TIA and the rules
and regulations of the SEC and any such
registration statement and any amendment
thereto will not include any untrue
statement of a material fact or omit to
state any material fact required to be
stated therein or necessary to make the
statements therein not misleading and any
such prospectus or any amendment or
supplement thereto will not include any
untrue statement of a material fact or omit
to state a material fact required to be
stated therein or necessary to make the
statements therein not misleading in light
of the circumstances then existing; and at
all times subsequent to the effective time
of any such registration statement when a
prospectus would be required to be delivered
under the Securities Act, other than from
(i) such time as a notice has been given to
Holders of Registrable Securities pursuant
to the last paragraph of Section 4(t) or
pursuant to Section 4(k) hereof until (ii)
such time as the Company furnishes an
amended or supplemented prospectus pursuant
to Section 4(k) hereof or otherwise gives an
Advice, each such registration statement,
and each prospectus (including any summary
prospectus) con tained therein or furnished
pursuant to Section 4(k) or Section 4(g)
hereof, as then
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amended or supplemented, will conform in all
material respects to the requirements of the
Securities Act and the TIA and the rules and
regulations of the Commission and will not
include any untrue statement of any material
fact or omit to state a material fact
required to be stated therein or necessary
to make the statements therein not
misleading in the light of the circumstances
then existing; provided, however, that this
representation and warranty does not apply
to any statements or omissions from a
registration statement or prospectus
(including any preliminary or summary
prospectus) based upon written information
furnished to the Company by any underwriter,
sales agent or Holder specifically for use
therein.
(b) Any documents incorporated by reference in
any prospectus referred to in Section 4(a)
hereof, when they become or became effective
or are or were filed with the SEC, as the
case may be, will conform or conformed in
all material respects to the requirements of
the Securities Act or the Exchange Act, as
applicable, and none of such documents will
include or included any untrue statement of
a material fact or will omit or omitted to
state any material fact required to be
stated therein or necessary to make the
statements therein not misleading; provided,
however, that this
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<PAGE>
representation and warranty does not apply
to any statements or omissions from a
registration statement or the prospectus
(including any preliminary or summary
prospectus) based upon written information
furnished to the Company by any underwriter,
sales agent or Holder specifically for use
therein.
(c) The issuance and sale of the Registrable
Securities did not and will not, and the
execution, delivery and performance of this
Agreement and the consummation of the
transactions herein contemplated will not,
result in a breach or violation of any of
the terms and provisions of, or constitute a
default under, any statute, rule,
regulation, order or policy of any
governmental agency or body or any court,
domestic or foreign, having jurisdiction
over the Company or any subsidiary of the
Company or any of their properties, the
Credit Agreements (as defined in the
Purchase Agreement) or any other agreement
or instrument to which the Company or any
such subsidiary is a party or by which the
Company or any such subsidiary is bound or
to which the Company or any such subsidiary
has agreed to become bound, or to which any
of the properties of the Company or any such
subsidiary is subject, or the charter or
by-laws (or other constituent document) of
the Company or any such subsidiary.
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<PAGE>
10. Miscellaneous
(a) No Inconsistent Agreements. The Company has
not, as of the date hereof, and the Company
shall not, after the date of this Agreement,
enter into any agreement with respect to any
of its securities that is inconsistent with
the rights granted to the Holders of
Registrable Securities in this Agreement or
otherwise conflicts with the provisions
hereof. The Company has not entered and will
not enter into any agreement with respect to
any of its securities that will grant to any
Person piggyback registration rights with
respect to a Registration Statement, except
to the extent any existing right has
heretofore been waived.
(b) Adjustments Affecting Registrable
Securities. The Company shall not, directly
or indirectly, take any action with respect
to the Registrable Securities as a class
that would adversely affect the ability of
the Holders of Registrable Securities to
include such Registrable Securities in a
registration undertaken pursuant to this
Agreement.
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<PAGE>
(c) Amendments and Waivers. The provisions of
this Agreement may not be amended, modified
or supplemented, and waivers or consents to
departures from the provisions hereof may
not be given, otherwise than with the prior
written consent of the Company and the
Holders of not less than a majority in
Amount of the then outstanding Registrable
Securities; provided, however, that Section
6 and this Section 10(c) may not be amended,
modified or supplemented without the prior
written consent of the Company and each
Holder (including, in the case of an
amendment, modification or supplement of
Section 6, any person who was a Holder of
Registrable Securities, disposed of pursuant
to any Registration Statement).
Notwithstanding the foregoing, a waiver or
consent to depart from the provisions hereof
with respect to a matter that relates
exclusively to the rights of Holders of
Registrable Securities whose securities are
being sold pursuant to a Registration
Statement and that does not directly or
indirectly affect, impair, limit or
compromise the rights of other Holders of
Registrable Securities may be given by
Holders of at least a
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majority in Amount of the Registrable
Securities being sold by such Holders
pursuant to such Registration Statement;
provided, however, that the provisions of
this sentence may not be amended, modified
or supplemented except in accordance with
the provisions of the immediately preceding
sentence.
(d) Notices. All notices and other
communications provided for or permitted
hereunder shall be made in writing by
hand-delivery, registered first-class mail,
next-day air courier or facsimile:
(1) if to a Holder of the Registrable Securities, at the most current
address of such Holder on the Security Register (as defined in the Indenture),
in the case of Convertible Notes, and the stock ledger of the Company, in the
case of Class A Common Stock, with a copy in like manner to the Initial
Purchasers as follows:
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CREDIT SUISSE FIRST BOSTON CORPORATION
DEUTSCHE BANK SECURITIES INC.
LEHMAN BROTHERS INC.
MORGAN STANLEY & CO. INCORPORATED
BANC OF AMERICA SECURITIES LLC
BEAR, STEARNS & CO. INC.
GOLDMAN, SACHS & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
SALOMON SMITH BARNEY INC.
c/o Credit Suisse First Boston Corporation
Eleven Madison Avenue
New York, New York 10010
Facsimile No: (212) 325-8278
Attention: Investment Banking Department
Transactions Advisory Group
with a copy to:
Sullivan & Cromwell
125 Broad Street
New York, New York 10004
Facsimile No.: (212) 558-3588
Attention: John T. Bostelman, Esq.
(2) if to the Initial Purchasers, at the addresses specified in Section
10(d)(1);
(3) if to the Company, at the addresses as follows:
American Tower Corporation
116 Huntington Avenue
Boston, Massachusetts 02116
Facsimile No.: (617) 375-7575
Attention: Chief Financial Officer
with copies to:
Sullivan & Worcester LLP
One Post Office Square
Boston, Massachusetts 02109
Facsimile No.: (617) 338-2880
Attention: Norman Bikales, Esq.
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<PAGE>
All such notices and communications shall be deemed to have been duly
given: when delivered by hand, if personally delivered; five business days after
being deposited in the mail, postage prepaid, if mailed; one business day after
being timely delivered to a next-day air courier; and when receipt is
acknowledged by the addressee, if sent by facsimile.
(e) Successors and Assigns. This Agreement shall
inure to the benefit of and be binding upon
the successors and assigns of each of the
parties hereto, including the Holders;
provided, however, that this Agreement shall
not inure to the benefit of or be binding
upon a successor or assign of a Holder
unless and except to the extent such
successor or assign holds Registrable
Securities.
(f) Counterparts. This Agreement may be executed
in any number of counterparts and by the
parties hereto in separate counterparts,
each of which when so executed shall be
deemed to be an original and all of which
taken together shall constitute one and the
same agreement.
(g) Headings. The headings in this Agreement are
for convenience of reference only and shall
not limit or otherwise affect the meaning
hereof.
(h) Governing Law. THIS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK, AS
APPLIED TO
-48-
<PAGE>
CONTRACTS MADE AND PERFORMED WHOLLY WITHIN
THE STATE OF NEW YORK, WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAW. EACH OF THE
PARTIES HERETO AGREES TO SUBMIT TO THE
JURISDICTION OF THE COURTS OF THE STATE OF
NEW YORK IN ANY ACTION OR PROCEEDING ARISING
OUT OF OR RELATING TO THIS AGREEMENT.
(i) Severability. If any term, provision,
covenant or restriction of this Agreement is
held by a court of competent jurisdiction to
be invalid, illegal, void or unenforceable,
the remainder of the terms, provisions,
covenants and restrictions set forth herein
shall remain in full force and effect and
shall in no way be affected, impaired or
invalidated, and the parties hereto shall
use their best efforts to find and employ an
alternative means to achieve the same or
substantially the same result as that
contemplated by such term, provision,
covenant or restriction. It is hereby
stipulated and declared to be the intention
of the parties that they would have executed
the remaining terms, provisions, covenants
and restrictions without including any of
such that may be hereafter declared invalid,
illegal, void or unenforceable.
(j) Securities Held by the Company or Its
Affiliates. Whenever the consent or approval
of Holders of a specified percentage in
Amount of Registrable Securities is required
-49-
<PAGE>
hereunder, Registrable Securities held by
the Company or its affiliates (as such term
is defined in Rule 405 under the Securities
Act) shall not be counted in determining
whether such consent or approval was given
by the Holders of such required percentage.
(k) Third Party Beneficiaries. Holders of
Registrable Securities are intended third
party beneficiaries of this Agreement and
this Agreement may be enforced by such
Persons.
(l) Entire Agreement. This Agreement, together
with the Purchase Agreement and the
Indenture, is intended by the parties as a
final and exclusive statement of the
agreement and understanding of the parties
hereto in respect of the subject matter
contained herein and therein and any and all
prior oral or written agreements,
representations, or warranties, contracts,
understandings, correspondence,
conversations and memoranda between the
Initial Purchasers on the one hand and the
Company on the other, or between or among
any agents, representatives, parents,
subsidiaries, affiliates, predecessors in
interest or successors in interest with
respect to the subject matter hereof and
thereof are merged herein and replaced
hereby.
-50-
<PAGE>
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
AMERICAN TOWER CORPORATION
By: /s/ Joseph L. Winn
Name: Joseph L. Winn
Title: Chief Financial Officer
CREDIT SUISSE FIRST BOSTON
CORPORATION
DEUTSCHE BANK SECURITIES INC.
LEHMAN BROTHERS INC.
MORGAN STANLEY & CO. INCORPORATED
BANC OF AMERICA SECURITIES LLC
BEAR, STEARNS & CO. INC.
GOLDMAN, SACHS & CO.
MERRILL LYNCH, PIERCE, FENNER &
SMITH INCORPORATED
SALOMON SMITH BARNEY INC.
By: CREDIT SUISSE FIRST BOSTON
CORPORATION
By: /s/ Kristin M. Allen
Name: Kristin M. Allen
Title: Managing Director
-51-
Exhibit 12
Ratio of Earnings to Fixed Charges
American Tower Corporation
The following table reflects the computation of the ratio of earnings to fixed
charges for the periods presented.
<TABLE>
<CAPTION>
Period From July 17, 1995 Six Months
(Incorporation) Year ended December 31, Ended
to December 31, 1995 1996 1997 1998 June 30, 1999
-------------------- ---- ---- ---- -------------
<S> <C> <C> <C> <C> <C>
Computation of Earnings:
Loss Before Income Taxes and
Extraordinary Loss . . . . . . . . . $ (184) $ (434) $ (2,049) $ (42,441) $ (20,130)
Add:
Interest Expense . . . . . . . . . . - - 3,040 23,229 11,539
Operating Leases . . . . . . . . . . 2 126 633 3,245 2,971
------- ------- --------- ---------- ----------
Earnings as Adjusted . . . . . . . . (182) (308) 1,624 (15,967) (5,620)
Computation of Fixed Charges:
Interest Expense . . . . . . . . . . - - 3,040 23,229 11,539
Operating Leases . . . . . . . . . . 2 126 633 3,245 2,971
------- ------- --------- ---------- ----------
Fixed Charges . . . . . . . . . . . 2 126 3,673 26,474 14,510
Ratio of Earnings to Fixed Charges - - .44 - -
Deficiency in Earnings Required to
Cover Fixed Charges . . . . . . . . $ 184 $ 434 $ 2,049 $42,441 $20,130
<FN>
(1) Interest expense includes amortization of deferred financing costs for the year ended December 31, 1997, 1998 and the six
months ended June 1999. Interest expense also includes redeemable preferred stock dividends for the year ended December 31,
1998.
(2) For purposes of this calculation "earnings" consist of loss before income taxes, extraordinary losses and fixed charges.
"Fixed Charges" consist of interest expense, amortization of debt discount and related issuance costs and the component of
rental expense associated with operating leases believed by management to be representative of the interest factor thereon
(30%).
</FN>
</TABLE>
Exhibit 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
American Tower Corporation on Form S-3 of our report dated March 4, 1999,
appearing in the Annual Report on Form 10-K of American Tower Corporation for
the year ended December 31, 1998 and to the reference to us under the heading
"Experts" in the Prospectus, which is part of this Registration Statement.
/s/ Deloitte & Touche LLP
Boston, Massachusetts
October 18, 1999
Exhibit 23.2
Accountants' Consent
The Board of Directors
UNIsite, Inc. and Subsidiaries:
We consent to the incorporation by reference in the registration statement on
Form S-3 of American Tower Corporation of our report dated March 31, 1999, with
respect to the consolidated balance sheets of UNIsite, Inc. and Subsidiaries as
of December 31, 1998 and 1997, and the related consolidated statements of
operations, redeemable convertible preferred stock and stockholders' deficit,
and cash flows for each of the years in the three-year period ended December 31,
1998 which report appears in the Form 8-K of American Tower Corporation dated
September 17, 1999.
Tampa, Florida
October 15, 1999 /s/ KPMG LLP
Exhibit 23.3
Independent Auditors' Consent
The Board of Directors
OmniAmerica, Inc. (formerly Specialty Teleconstructors, Inc.):
We consent to the incorporation by reference in the registration statement on
Form S-3 dated October 20, 1999 of American Tower Corporation of our report
dated August 29, 1997, with respect to the consolidated balance sheet of
OmniAmerica, Inc. and subsidiaries (formerly Specialty Teleconstructors, Inc.)
as of June 30, 1997, and the related consolidated statements of earnings,
stockholders' equity, and cash flows for the year ended June 30, 1997, which
report appears in the Form 8-K of American Tower Corporation dated September 17,
1999, and to the reference to our firm under the heading "Experts" in the
prospectus.
Albuquerque, New Mexico
October 15, 1999 /s/ KPMG LLP
Exhibit 23.4
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement on Form S-3 and related Prospectus of American Tower
Corporation for the registration of 6.25% and 2.25% convertible notes due 2009
and Class A common stock and to the incorporation by reference therein of our
report dated September 16, 1998, with respect to the consolidated financial
statements of OmniAmerica, Inc. and Subsidiaries (formerly Specialty
Teleconstructors, Inc.) at and for the year ended June 30, 1998, included in
American Tower Corporation's Form 8-K.
Dallas, Texas
October 14, 1999 /s/ Ernst & Young LLP
Exhibit 23.5
Consent of Independent Auditors
We consent to the incorporation by reference in the Registration Statement (Form
S-3 No. 333-00000) of American Tower Corporation of our reports dated April 1,
1999 with respect to the financial statements of TeleCom Towers, LLC as of
December 31, 1998 and 1997 and for the year ended December 31, 1998 and the
period from September 30, 1997 (inception) to December 31, 1997 and the
financial statements of TeleCom Towers Mid-Atlantic, LP, TeleCom Towers of the
West, LP and TeleCom Southwest Towers, LP as of July 31, 1998 and December 31,
1997 and for the seven months ended July 31, 1998 and the year ended December
31, 1997, included in the Form 8-K of American Tower Corporation dated September
17, 1999, filed with the Securities and Exchange Commission.
Vienna, Virginia
October 15, 1999 /s/ Ernst & Young LLP
Exhibit 23.6
ACCOUNTANT'S CONSENT
The Board of Directors and Stockholder
RCC Consultants, Inc.:
We consent to the use our reports, dated February 24, 1999 incorporated herein
by reference and to the reference to our firm under the heading "Experts" in the
prospectus.
Short Hills, New Jersey
October 15, 1999 /s/ KPMG LLP
Exhibit 23.7
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement on Form S-3 of American Tower
Corporation of our report dated November 25, 1998 included in Wauka
Communications, Inc.'s financial statements for the period ended October 26,
1998 and to all references of our Firm included in or made a part of this
registration statement.
Atlanta, Georgia
October 15, 1999 /s/ Arthur Anderson LLP
Exhibit 23.8
CONSENT OF INDEPENDENT AUDITORS
The Board of Directors
American Tower Corporation
We consent to the incorporation by reference in the registration statement on
Form S-3 of American Tower Corporation dated October 20, 1999 of our report
dated January 23, 1998, with respect to the consolidated financial statements of
American Tower Corporation and subsidiaries (old ATC) as of December 31, 1997
and 1996, and for each of the years in the three year period ended December 31,
1997, which report appears in the Form 8-K of American Tower Corporation dated
September 17, 1999, and to the reference to our firm under the heading "Experts"
in the prospectus.
Houston, Texas
October 18, 1999 /s/ KPMG LLP
Exhibit 25
========================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) |__|
-------------
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
One Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
-------------
AMERICAN TOWER CORPORATION
(Exact name of obligor as specified in its charter)
Delaware 65-0723837
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
116 Huntington Avenue
Boston, Massachusetts 02116
(Address of principal executive offices) (Zip code)
-------------
6.25% Convertible Notes due 2009
2.25% Convertible Notes due 2009
(Title of the indenture securities)
========================================================================
<PAGE>
1. General information. Furnish the following information as to the
Trustee:
(a) Name and address of each examining or supervising authority to which
it is subject.
- --------------------------------------------------------------------------------
Name Address
- --------------------------------------------------------------------------------
Superintendent of Banks of the 2 Rector Street, New York,
State of New York N.Y. 10006, and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York,
N.Y. 10045
Federal Deposit Insurance Washington, D.C. 20429
Corporation
New York Clearing House Association New York, New York 10005
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
2. Affiliations with Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
16. List of Exhibits.
Exhibits identified in parentheses below, on file with the Commission,
are incorporated herein by reference as an exhibit hereto, pursuant to
Rule 7a-29 under the Trust Indenture Act of 1939 (the "Act") and 17
C.F.R. 229.10(d).
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which contains
the authority to commence business and a grant of powers to
exercise corporate trust powers. (Exhibit 1 to Amendment No. 1 to
Form T-1 filed with Registration Statement No. 33-6215, Exhibits
1a and 1b to Form T-1 filed with Registration Statement No.
33-21672 and Exhibit 1 to Form T-1 filed with Registration
Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to
Form T-1 filed with Registration Statement No. 33-31019.)
6. The consent of the Trustee required by Section 321(b) of the
Act. (Exhibit 6 to Form T-1 filed with Registration Statement
No. 33-44051.)
7. A copy of the latest report of condition of the Trustee published
pursuant to law or to the requirements of its supervising or
examining authority.
-2-
<PAGE>
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New
York, a corporation organized and existing under the laws of the State of New
York, has duly caused this statement of eligibility to be signed on its behalf
by the undersigned, thereunto duly authorized, all in The City of New York, and
State of New York, on the 19th day of October, 1999.
THE BANK OF NEW YORK
By: /s/ MICHAEL CULHANE
Name: MICHAEL CULHANE
Title: VICE PRESIDENT
<PAGE>
- --------------------------------------------------------------------------------
Consolidated Report of Condition of
THE BANK OF NEW YORK
of One Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business June 30, 1999,
published in accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
Dollar Amounts
In Thousands
<S> <C>
ASSETS
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin.. $5,597,807
Interest-bearing balances........................... 4,075,775
Securities:
Held-to-maturity securities......................... 785,167
Available-for-sale securities....................... 4,159,891
Federal funds sold and Securities purchased under
agreements to resell................................ 2,476,963
Loans and lease financing receivables:
Loans and leases, net of unearned
income...............38,028,772
LESS: Allowance for loan and
lease losses............568,617
LESS: Allocated transfer risk
reserve........................16,352
Loans and leases, net of unearned income,
allowance, and reserve............................ 37,443,803
Trading Assets......................................... 1,563,671
Premises and fixed assets (including capitalized
leases)............................................. 683,587
Other real estate owned................................ 10,995
Investments in unconsolidated subsidiaries and
associated companies................................ 184,661
Customers' liability to this bank on acceptances
outstanding......................................... 812,015
Intangible assets...................................... 1,135,572
Other assets........................................... 5,607,019
------------
Total assets........................................... $64,536,926
===========
<PAGE>
LIABILITIES
Deposits:
In domestic offices................................. $26,488,980
Noninterest-bearing.......................10,626,811
Interest-bearing..........................15,862,169
In foreign offices, Edge and Agreement
subsidiaries, and IBFs............................ 20,655,414
Noninterest-bearing..........................156,471
Interest-bearing..........................20,498,943
Federal funds purchased and Securities sold under
agreements to repurchase............................ 3,729,439
Demand notes issued to the U.S.Treasury................ 257,860
Trading liabilities.................................... 1,987,450
Other borrowed money:
With remaining maturity of one year or less......... 496,235
With remaining maturity of more than one year
through three years............................... 465
With remaining maturity of more than three years.... 31,080
Bank's liability on acceptances executed and
outstanding......................................... 822,455
Subordinated notes and debentures...................... 1,308,000
Other liabilities...................................... 2,846,649
------------
Total liabilities...................................... 58,624,027
===========
EQUITY CAPITAL
Common stock........................................... 1,135,284
Surplus................................................ 815,314
Undivided profits and capital reserves................. 4,001,767
Net unrealized holding gains (losses) on
available-for-sale securities....................... ( 7,956)
Cumulative foreign currency translation adjustments.... ( 31,510)
------------
Total equity capital................................... 5,912,899
------------
Total liabilities and equity capital................... $64,536,926
===========
</TABLE>
<PAGE>
I, Thomas J. Mastro, Senior Vice President and Comptroller of the
above-named bank do hereby declare that this Report of Condition has been
prepared in conformance with the instructions issued by the Board of Governors
of the Federal Reserve System and is true to the best of my knowledge and
belief.
Thomas J. Mastro
We, the undersigned directors, attest to the correctness of this Report
of Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
Thomas A. Reyni
Alan R. Griffith Directors
Gerald L. Hassell
- --------------------------------------------------------------------------------
