<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report
May 25, 1999
VOICESTREAM WIRELESS CORPORATION
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(Exact Name of Registrant as Specified in Charter)
Washington
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(State or Other Jurisdiction of Incorporation)
000-25441 91-1956183
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(Commission File Number) (IRS Employer Identification No.)
3650 131st Avenue SE
Bellevue, WA 98006
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(Address of Principal Executive Offices)
(Zip Code)
Registrant's telephone number, including area code: (425) 653-4600
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- --------------------------------------------------------------------------------
(Former Name or Former Address, if Changed Since Last Report)
<PAGE> 2
ITEM 5. OTHER EVENTS
Sale of Senior Debentures to Nortel Networks Inc.
Nortel Networks Inc. ("Nortel") purchased $400 million of 12% Series A
Senior Debentures Due 2011 (the "Senior Debentures") from VoiceStream Wireless
Corporation ("VoiceStream") in May 1999 pursuant to an indenture between
VoiceStream and Harris Trust Company of California. The Senior Debentures are
limited in aggregate principal amount to $400 million and will mature on May 15,
2011. Interest on the Senior Debentures accrues at 12% per annum and is payable
semiannually in arrears on November 15 and May 15 of each year. On or prior to
May 15, 2004, VoiceStream has the option to pay interest in cash or by issuance
of additional senior notes in the aggregate principal amount equal to the amount
of such interest.
On or after May 15, 2004, the Senior Debentures are subject to
redemption at the option of VoiceStream, in whole or in part, at the redemption
prices set forth below plus accrued and unpaid interest thereon to the
applicable redemption date, if redeemed during the twelve-month period beginning
on May 15 of the years indicated below:
<TABLE>
<CAPTION>
YEAR PERCENTAGE
---- ----------
<S> <C>
2004 106.000%
2005 104.500%
2006 103.000%
2007 101.500%
2008 and thereafter 100.000%
</TABLE>
In addition, at any time prior to May 15, 2002, VoiceStream may redeem
with the proceeds of a public equity offering or strategic equity investment up
to 35% of the aggregate principal amount of the Senior Debentures, plus accrued
and unpaid interest thereon, if any, to the date of redemption, provided that at
least $260 million in aggregate principal amount of the Senior Debentures
remains outstanding immediately after such redemption.
The indenture relating to the Senior Debentures contains certain
restrictive covenants which impose limitations on the operations and activities
of VoiceStream and its subsidiaries, including, but not limited to, limitations
on incurrence of additional indebtedness, issuance of preferred stock and
distributions and transfers by subsidiaries, creation of liens, disposition of
assets, transactions with affiliates and certain investments and transactions.
The indenture relating to the Senior Debentures provides that (a) if
within 120 days from the original issuance of the Senior Debentures VoiceStream
consummates any Debt Offering (as defined in the indenture), and (b) if
VoiceStream delivers to Nortel an opinion of a reputable investment banking firm
to the effect that, taken as a whole, the covenants and events of default
governing the debt securities offered are not less favorable than the covenants
and events of default governing the Senior Debentures, then the covenants and
events of default governing the
<PAGE> 3
Senior Debentures shall be replaced with the covenants and events of default
governing the debt securities offered.
The Purchase Agreement by and between VoiceStream and Nortel, dated May
14, 1999, is attached hereto as Exhibit 4.3. The Debenture Exchange and
Registration Rights Agreement by and between VoiceStream and Nortel, dated May
14, 1999, is attached hereto as Exhibit 4.4. The Indenture by and between
VoiceStream and Harris Trust Company, dated May 14, 1999, is attached hereto as
Exhibit 4.5.
Amendment No. 6 to PCS 1900 Project and Supply Agreement
On May 14, 1999, VoiceStream entered into Amendment No. 6 to PCS 1900
Project and Supply Agreement with Nortel Networks Inc. (the "Amendment"), a copy
of which is attached hereto as Exhibit 10.46. The Amendment and the underlying
agreement relate to the purchase and license of PCS cell-site and switching
systems and equipment, which includes hardware, software and related products
and services. Under the agreement, as amended, VoiceStream has committed to
purchase and license hardware, software and related products and services from
Nortel Networks Inc.
On April 9, 1999, VoiceStream Wireless Corporation (formerly known as
Western PCS Corporation, a Delaware corporation ("WPCS")), merged with and into
VoiceStream, a Washington corporation, in order to effect a reincorporation of
WPCS in Washington State and, accordingly, VoiceStream succeeded to all of
WPCS's rights and obligations under the agreement to which the Amendment
relates. WPCS was formerly an 80.1% subsidiary of Western Wireless Corporation
("Western"). On May 3, 1999, VoiceStream legally separated from Western's other
operations in a tax-free spin-off. Western has previously filed: (a) the
underlying agreement, the PCS 190 Project and Supply Agreement dated June 30,
1995, by and between Western PCS Corporation and Nortel's predecessor (the
"Agreement"), with the Securities and Exchange Commission ("Commission") as
Exhibit 10.2 to Western's registration statement on Form S-1 (Commission Filing
No. 333-2432); (b) Amendment Nos. 1 and 2 to the Agreement, dated July 25, 1996
and October 25, 1996, respectively, with the Commission as Exhibits 10.43 and
10.44, respectively, to Western's registration statement on Form S-4
(Commission File No. 333-14859); (c) Amendment No. 3 to the Agreement, dated
October 14, 1996, with the Commission as Exhibit 10.42 to Western's Form 10-K
for fiscal year 1996 (Commission File No. 000-28160); and (d) Amendment No. 4
to the Agreement, dated March 26, 1998, with the Commission as Exhibit 10.70 to
Western's Form 10-Q/A for quarter ended June 30, 1998 (Commission File No.
000-28160). VoiceStream filed Amendment No. 5 to the Agreement, dated September
17, 1998, with the Commission as Exhibit 10.30 to VoiceStream's registration
statement on Form 10 (Commission File No. 000-25441).
<PAGE> 4
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS
(c) Exhibits.
<TABLE>
<S> <C>
4.3 Purchase Agreement by and between VoiceStream Wireless
Corporation and Nortel Networks Inc., dated May 14, 1999,
relating to 12% Series A Senior Debentures due 2011
4.4 Debenture Exchange and Registration Rights Agreement by
and between VoiceStream Wireless Corporation and Nortel
Networks Inc., dated May 14, 1999, relating to 12% Series
A Senior Debentures due 2011
4.5 Indenture by and between VoiceStream Wireless Corporation
and Harris Trust Company, dated May 14, 1999, relating to
12% Series A Senior Debentures due 2011 and 12% Senior
Debentures due 2011
10.46 Amendment No. 6 to PCS 1900 Project and Supply Agreement
by and between VoiceStream Wireless Corporation and Nortel
Networks Inc.
</TABLE>
<PAGE> 5
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
VOICESTREAM WIRELESS CORPORATION
Dated: May 25, 1999
By /s/ Alan R. Bender
---------------------------------------
Alan R. Bender
Executive Vice President,
General Counsel and Secretary
<PAGE> 6
EXHIBIT INDEX
<TABLE>
<CAPTION>
Number Description
- ------ -----------
<S> <C>
4.3 Purchase Agreement by and between VoiceStream Wireless Corporation
and Nortel Networks Inc., dated May 14, 1999, relating to 12% Series
A Senior Debentures due 2011
4.4 Debenture Exchange and Registration Rights Agreement by and between
VoiceStream Wireless Corporation and Nortel Networks Inc., dated May
14, 1999, relating to 12% Series A Senior Debentures due 2011
4.5 Indenture by and between VoiceStream Wireless Corporation and Harris
Trust Company, dated May 14, 1999, relating to 12% Series A Senior
Debentures due 2011 and 12% Senior Debentures due 2011
10.46 Amendment No. 6 to PCS 1900 Project and Supply Agreement by and
between VoiceStream Wireless Corporation and Nortel Networks Inc.
</TABLE>
<PAGE> 1
EXHIBIT 4.3
VOICESTREAM WIRELESS CORPORATION
12% SERIES A SENIOR DEBENTURES DUE 2011
PURCHASE AGREEMENT
May 14, 1999
Nortel Networks Inc.
2221 Lakeside Blvd.
Richardson, Texas 75082
Dear Sirs:
1. INTRODUCTORY. VoiceStream Wireless Corporation, a Washington
corporation (the "Company"), proposes, subject to the terms and conditions
stated herein, to issue and sell to Nortel Networks Inc. (the "Purchaser") an
aggregate principal amount of $400,000,000 of its 12% Series A Senior Debentures
Due 2011 (the "Initial Debentures") created pursuant to the indenture (the
"Indenture") in the form attached hereto as Exhibit "A". The Initial Debentures
and the Additional Debentures (as defined below) are collectively referred to as
the "Debentures." Holders of Debentures will have the registration rights set
forth in the Registration Rights Agreement between the Company and the Purchaser
attached hereto as Exhibit "B" (the "Registration Rights Agreement"). The United
States Securities Act of 1933, as amended, is herein referred to as the
"Securities Act."
The Company hereby agrees with the Purchaser as follows:
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants to, and agrees with, the Purchaser that:
(a) (i) The Information Statement (the "Information
Statement") filed with the Securities and Exchange Commission (the "Commission")
on April 13, 1999 and prepared by Western Wireless Corporation ("Parent")
describing the distribution of shares of the common stock of the Company to the
holders of the common stock of the Parent (the "Spin-Off"), (ii) the Company's
Form 10/A (the "Form 10/A"), filed with the Commission on April 13, 1999 and
(iii) all subsequent reports (together with the Information Statement and the
Form 10/A, the "Exchange Act Reports") which have been filed by the Company
prior to the date hereof with the Commission or sent to stockholders pursuant to
the Securities Exchange Act of 1934 (the "Exchange Act"), when taken together,
did not include, as of the date of such respective filings, any untrue statement
of a material fact in relation to the Company or the Spin-Off or omit to state
any material fact necessary in relation to the Company or the Spin-Off in order
to make the statements therein, in the light of the circumstances under which
they were made, not misleading. Such documents, when they were filed with the
Commission, conformed in all material respects to, and included all exhibits and
filings required by, the requirements of the Exchange Act and the rules and
regulations of the Commission thereunder.
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(b) The Company has provided to the Purchaser true and
correct copies of each such exhibit to the Form 10/A, as such exhibits are
currently in effect. All such contracts or documents which are so described in,
or filed as an exhibit to, the Form 10/A to which the Company or any of its
Subsidiaries (as hereinafter defined) is a party, have not been amended, have
been duly authorized, executed and delivered by the Company or its Subsidiaries,
constitute valid and binding agreements of the Company or such Subsidiary and
are enforceable against the Company or such Subsidiary in accordance with the
terms thereof except as enforcement thereof may be limited by bankruptcy,
insolvency (including, without limitation, all laws relating to fraudulent
transfers), reorganization, moratorium or similar laws affecting enforcement of
creditors' rights generally and except as enforcement thereof is subject to
general principles of equity (regardless of whether enforcement is considered in
a proceeding in equity or at law). Except as set forth in Schedule 2(b) attached
hereto, no document or contract to which the Company or any Subsidiary is a
party or by which any of them is bound imposes any restriction or prohibition on
the ability of any Subsidiary of the Company (i) to pay, directly or indirectly,
dividends or make any other distributions in respect of its capital stock or any
other ownership interest or participation in, or measured by, its profits, to
the Company or any Subsidiary of the Company or pay any indebtedness or other
obligation owed to the Company or any Subsidiary of the Company; (ii) to make
loans or advances to the Company or any Subsidiary of the Company; or (iii) to
transfer any of its property or assets to the Company or any Subsidiary of the
Company. The Company has made available to the Purchaser true and correct copies
of (i) all acquisition, partnership, joint venture, teaming arrangements or
other similar contracts, arrangements or agreements entered into by the Company
since its organization and currently in effect, and (ii) all loan or credit
agreements or notes entered into by the Company since its organization and
currently in effect.
(c) The Company has been duly incorporated and is an
existing corporation in good standing under the laws of the State of Washington,
with power and authority (corporate and governmental) to own its properties and
conduct its business as described in the Exchange Act Reports; and the Company
is duly qualified to do business as a foreign corporation in good standing in
all other jurisdictions in which its ownership or lease of property or the
conduct of its business requires such qualification except to the extent the
failure to be so qualified or to be in good standing would not have a material
adverse effect on the financial condition, business, properties or results of
operations of the Company and its Subsidiaries taken as a whole (a "Material
Adverse Effect"). The actual capitalization of the Company as of the Effective
Date referred to in the Form 10/A after giving effect to the Spin-Off, will be
as set forth in Schedule 2(c) attached hereto. All of the outstanding capital
stock of the Company has been duly authorized and validly issued, is fully-paid
and nonassessable and was not issued in violation of any preemptive or similar
rights (whether provided contractually or pursuant to any of its articles of
incorporation, by-laws or other organizational documents). All offers and sales
by the Company of the Company's securities which have taken place within the
past three years were at all relevant times exempt from the registration
requirements of the Securities Act or duly registered under the Securities Act,
and were duly registered or the subject of an available exemption from the
requirements of applicable state and foreign securities or blue sky laws. The
Company has a duly authorized capitalization of 300,000,000 shares of Common
Stock, no par value, and 50,000,000 undesignated shares of capital stock, no par
value.
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<PAGE> 3
(d) Schedule 2(d)(i) attached hereto sets forth each of the
Company's subsidiaries (the "Subsidiaries") and its ownership thereof on the
date hereof. Each of such Subsidiaries has been duly organized or formed, as the
case may be, and is validly existing and in good standing as a corporation,
limited liability company or limited partnership, as the case may be, under the
laws of the jurisdiction of its organization or formation, as the case may be,
and each such entity has all requisite corporate, limited liability company or
partnership power and authority, as the case may be, under such laws to own,
lease and operate its properties and conduct its business as now conducted and,
if applicable, as described in the Form 10/A, except for any violations of the
foregoing that would not, individually or in the aggregate, have a Material
Adverse Effect. Each Subsidiary of the Company is duly qualified to do business
and in good standing in all other jurisdictions in which its ownership or lease
of property or the conduct of its business requires such qualification except to
the extent the failure to be so qualified, individually or in the aggregate,
would not have a Material Adverse Effect. All of the issued and outstanding
capital stock of each Subsidiary has been duly authorized and validly issued and
is fully paid and nonassessable; and the capital stock of each Subsidiary
indicated in Schedule 2(d) as being owned by the Company, directly or through
Subsidiaries, is so owned free from all interests, mortgages, deeds of trust,
pledges, liens, encumbrances or claims (collectively, "Encumbrances"), including
restrictions on transferability or voting of such capital stock, except as set
forth on Schedule 2(d)(ii) attached hereto.
(e) The Initial Debentures have been duly and validly
authorized; and when the Initial Debentures have been delivered and paid for
pursuant to this Agreement on the Closing Date (as defined below) and
authenticated in accordance with the terms of the Indenture, will be the legal,
valid and binding obligations of the Company, enforceable against it in
accordance with their terms and entitled to the benefits of the Indenture,
except as (i) enforcement thereof may be limited by bankruptcy, insolvency
(including, without limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or similar laws affecting enforcement of creditors'
rights generally and except as enforcement thereof is subject to general
principles of equity (regardless of whether enforcement is considered in a
proceeding in equity or in law) and (ii) the enforceability of any right to
indemnification provided therein violates the public policy of any law, rule or
regulation; additional Debentures (the "Additional Debentures") have been duly
and validly authorized and reserved for issuance upon payment of interest on the
Debentures in Additional Debentures and if and when so issued will be the legal,
valid and binding obligations of the Company, enforceable against it in
accordance with their terms and entitled to the benefits of the Indenture,
except as (i) enforcement thereof may be limited by bankruptcy, insolvency
(including, without limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or similar laws affecting enforcement of creditors'
rights generally and except as enforcement thereof is subject to general
principles of equity (regardless of whether enforcement is considered in a
proceeding in equity or in law) and (ii) the enforceability of any right to
indemnification provided therein violates the public policy of any law, rule or
regulation; the issuance of the Debentures is not subject to preemptive or other
similar rights.
(f) Except as contemplated by this Agreement, there are no
contracts, agreements or understandings between the Company or any of its
Subsidiaries and any person that would give rise to a claim against the Company
or any of its Subsidiaries or the Purchaser
3
<PAGE> 4
for a brokerage commission, finder's fee or other like payment in connection
with the transactions contemplated by this Agreement.
(g) No consent, approval, authorization, or order of, or
filing with, any governmental agency or body or any court is required for the
consummation of the transactions contemplated by this Agreement or the Indenture
in connection with the issuance and sale of the Debentures by the Company, other
than as may be required under the Securities Act and the Rules and Regulations
of the Commission thereunder with respect to the Registration Rights Agreement
and the transactions contemplated thereunder, and as may be required by
securities or blue sky laws of any state of the United States or of any foreign
jurisdiction in connection with the offer and sale of the Debentures or the
transactions contemplated by the Registration Rights Agreement.
(h) Neither the Company nor any of its Subsidiaries is in
violation of its respective organizational documents or in default in the
performance or observance of any obligation, agreement, covenant or condition
contained in any contract, indenture, mortgage, deed of trust, loan or credit
agreement, note, lease or other agreement or instrument to which any of them is
a party or by which any of them may be bound, or to which any of the property or
assets of any of them is subject, except for such violations or defaults that
would not, individually or in the aggregate, have a Material Adverse Effect; and
(i) the execution, delivery and performance of this Agreement, the Indenture and
the Registration Rights Agreement by the Company, and the consummation by the
Company of the transactions contemplated herein and therein (including the
issuance and sale by the Company of the Debentures in accordance with the
offering and sale restrictions contained in this Agreement), and (ii) compliance
by the Company with its obligations hereunder, under the Indenture, under the
Registration Rights Agreement and under the Debentures, as applicable, will not
(A) whether with or without the giving of notice or the passage of time or both,
constitute a breach of, or default or Repayment Event (as defined below) under,
or result in the creation or imposition of any Encumbrance upon any property or
assets of the Company or any of its Subsidiaries pursuant to, any contract,
indenture, mortgage, deed of trust, loan or credit agreement, note, lease or
other agreement or instrument to which the Company or any of its Subsidiaries is
a party or by which any of them may be bound, or to which any the property or
assets of any of them is subject (except for such conflicts, breaches or
defaults or Encumbrances as would not, individually or in the aggregate, have a
Material Adverse Effect and would not, individually or in the aggregate, affect
the validity or enforceability of this Agreement or the agreements contemplated
hereby) or (B) result in any violation of (1) the provisions of the respective
organizational documents of the Company or any of its Subsidiaries or (2) any
applicable law, statute, rule, regulation, judgment, order, writ or decree of
any government, government instrumentality or court, domestic or foreign, having
jurisdiction over the Company or any of its Subsidiaries or any of their assets,
properties or operations (except for such violations as would not, individually
or in the aggregate, have a Material Adverse Effect and would not, individually
or in the aggregate, materially adversely affect the validity or enforceability
of this Agreement or the agreements contemplated hereby or thereby). As used
herein, a "Repayment Event" means any event or condition which gives the holder
of any note, debenture or other evidence of indebtedness (or any person acting
on such
4
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holder's behalf) the right to require the repurchase, redemption or repayment of
all or a portion of such indebtedness by the Company or any of its Subsidiaries.
(i) The Registration Rights Agreement has been duly
authorized, executed and delivered by the Company, and constitutes a valid and
binding obligation of the Company, enforceable against it in accordance with its
terms, except as (i) enforcement thereof may be limited by bankruptcy,
insolvency (including, without limitation, all laws relating to fraudulent
transfers), reorganization, moratorium or similar laws affecting enforcement of
creditors' rights generally and except as enforcement thereof is subject to
general principles of equity (regardless of whether enforcement is considered in
a proceeding in equity or in law) and (ii) the enforceability of any right to
indemnification provided therein violates the public policy of any law, rule or
regulation. Except as set forth in Schedule 2(i) attached hereto, there are no
persons with registration rights or other similar rights to have any securities
registered by the Company or any of its Subsidiaries under the Securities Act,
and no person has any "piggy-back" or other similar registration rights in
relation to any registration statement to be filed under the Securities Act
pursuant to the Registration Rights Agreement.
(j) The Indenture has been duly authorized, executed and
delivered by the Company, and constitutes a valid and binding obligation of the
Company, enforceable against it in accordance with its terms, except as (i)
enforcement thereof may be limited by bankruptcy, insolvency (including, without
limitation, all laws relating to fraudulent transfers), reorganization,
moratorium or similar laws affecting enforcement of creditors' rights generally
and except as enforcement thereof is subject to general principles of equity
(regardless of whether enforcement is considered in a proceeding in equity or in
law) and (ii) the enforceability of any right to indemnification provided
therein violates the public policy of any law, rule or regulation.
(k) This Agreement has been duly authorized, executed and
delivered by the Company, and constitutes a valid and binding agreement with the
Company enforceable against the Company in accordance with its terms, except as
(i) enforcement thereof may be limited by bankruptcy, insolvency (including,
without limitation, all laws relating to fraudulent transfers), reorganization,
moratorium or similar laws affecting enforcement of creditors' rights generally
and except as enforcement thereof is subject to general principles of equity
(regardless of whether enforcement is considered in a proceeding in equity or in
law) and (ii) the enforceability of any right to indemnification provided herein
violates the public policy of any law, rule or regulation.
(l) Except for violations of any of the following that would
not have a Material Adverse Effect, the Company and its Subsidiaries are in
compliance with all presently applicable provisions of the Employee Retirement
Income Security Act of 1974, as amended, including the regulations and published
interpretations thereunder ("ERISA"); no "reportable event" (as defined in
ERISA) has occurred with respect to any "pension plan" (as defined in Section
3(2) of ERISA) for which the Company or any ERISA Affiliate (as defined below)
would have any liability; neither the Company nor any of its ERISA Affiliates
has incurred and none of them expects to incur liability under (i) Title IV of
ERISA with respect to termination of,
5
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or withdrawal from, any "pension plan" or (ii) Chapter 43 of Subtitle A of the
Internal Revenue Code of 1986, as amended, including the regulations and
published interpretations thereunder (the "Code"); each "pension plan" for which
the Company or any ERISA Affiliate would have liability that is intended to be
qualified under Section 401(a) of the Code is so qualified and nothing has
occurred, whether by action or by failure to act, which would cause the loss of
such qualification; and, with respect to each plan within the meaning of Section
3(3) of ERISA, there has been no breach of Part 4 of Title I for which the
Company or any ERISA Affiliate has been or could be liable. "ERISA Affiliate"
shall mean each entity, whether or not incorporated, considered affiliated with
the Company under Section 414 of the Code.
(m) No labor dispute with the employees of the Company or
any of its Subsidiaries exists or, to the knowledge of the Company, is
threatened that would, individually or in the aggregate, have a Material Adverse
Effect.
(n) To the knowledge of the Company, the Company and its
Subsidiaries own, possess or can acquire on reasonable terms, adequate
trademarks, trade names and other rights to inventions, know-how, patents,
copyrights, confidential information and other intellectual property
(collectively, "intellectual property rights") necessary to conduct the business
now operated by them, or presently employed by them, and have not received any
notice of infringement of or conflict with asserted rights of others with
respect to any intellectual property rights that, if determined adversely to the
Company or any of its Subsidiaries, would, individually or in the aggregate,
have a Material Adverse Effect.
(o) To the knowledge of the Company, (i) all of the
Company's and its Subsidiaries' material products (including products currently
under development) and (ii) all of the Company's and its Subsidiaries' internal
computer systems comprised of software, hardware, databases or embedded control
systems (microprocessor controlled, robotic or other device) related to the
Company's and its Subsidiaries' businesses (collectively, a "Business System"),
that constitutes any material part of, or is used in connection with the use,
operation or enjoyment of, any material tangible or intangible asset or real
property of the Company and its Subsidiaries, including its accounting systems,
will record, store, process and calculate and present calendar dates falling on
and after December 31, 1999, and will calculate any information dependent on or
relating to such dates in the same manner and with the same functionality, data
integrity and performance as the products record, store, process, calculate and
present calendar dates on or before December 31, 1999, or calculate any
information dependent on or relating to such dates (collectively "Year 2000
Compliant"), except to the extent the failure to be Year 2000 Compliant,
individually or in the aggregate, would not have a Material Adverse Effect.
Except as would not, individually or in the aggregate, have a Material Adverse
Effect, to the knowledge of the Company, the Company's material products and the
conduct of the Company's business with its material customers and suppliers will
not be materially adversely affected by the advent of the year 2000, the advent
of the twenty-first century or the transition from the twentieth century through
the year 2000 and into the twenty-first century. Except as set forth on Schedule
2(o) attached hereto and except as would not, individually or in the aggregate,
have a Material Adverse Effect, to the knowledge of the Company, neither the
Company nor any of its Subsidiaries is reasonably likely to incur material
expenses arising from or relating to the failure
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<PAGE> 7
of any of its Business Systems or any products (including all products sold on
or prior to the date hereof) as a result of the advent of the year 2000, the
advent of the twenty-first century or the transition from the twentieth century
through the year 2000.
(p) To the knowledge of the Company, neither the Company nor
any of its Subsidiaries is in violation of any statute, rule, regulation,
decision, order or permit of any governmental agency or body or any court,
domestic or foreign, relating to the use, disposal or release of hazardous or
toxic substances or relating to the protection or restoration of the environment
or human exposure to hazardous or toxic substances (collectively, "environmental
laws"), owns or operates or has ever owned or operated any real property
contaminated with any substance that is subject to any environmental laws, is
liable for any off-site disposal or contamination pursuant to any environmental
laws, or is subject to any claim relating to any environmental laws, which
violation, contamination, liability or claim would, individually or in the
aggregate, have a Material Adverse Effect; and the Company is not aware of any
pending investigation which might lead to such a claim. To the knowledge of the
Company, the Company and its Subsidiaries have obtained all approvals,
authorizations, certificates, consents, licenses, orders and permits or other
similar authorizations of all governmental authorities, or from any other
person, that are required under any environmental law, except for any such
approvals, authorizations, certificates, consents, licenses, orders and permits
or other similar authorizations the absence of which would not, individually or
in the aggregate, have a Material Adverse Effect.
(q) Except as set forth in the Form 10/A, there are no
pending actions, suits or proceedings against or affecting the Company, any of
its Subsidiaries or any of their respective properties that if determined
adversely to the Company or any of its Subsidiaries, would, individually or in
the aggregate, have a Material Adverse Effect, or would materially and adversely
affect the ability of the Company to perform its obligations under this
Agreement, the Registration Rights Agreement or the Debentures; and to the
knowledge of the Company, no such actions, suits or proceedings are threatened.
(r) The Company and its Subsidiaries maintain a system of
internal accounting controls sufficient to provide reasonable assurances that
(i) transactions are executed in accordance with management's general or
specific authorization, (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally accepted
accounting principles and to maintain accountability for assets, (iii) access to
assets is permitted only in accordance with management's general or specific
authorization and (iv) the recorded accountability for assets is compared with
the existing assets at reasonable intervals and appropriate action is taken with
respect to any differences. To the knowledge of the Company, neither the Company
nor any of its Subsidiaries, nor any director, officer, agent, employee or other
person associated with or acting on behalf of the Company or any of its
Subsidiaries, has made, any payment of the Company's funds or its Subsidiaries'
funds or received or retained any funds in violation of any applicable law,
regulation or rule or that would be required to be disclosed in the Form 10/A if
it were a prospectus filed as part of a registration statement on Form S-l under
the Securities Act. To the knowledge of the Company, neither the Company nor any
of its Subsidiaries, nor any director, officer, agent, employee or other person
associated with
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<PAGE> 8
or acting on behalf of the Company or any of its Subsidiaries, has used any
corporate funds for any unlawful contribution, gift, entertainment or other
unlawful expense relating to political activity; made any direct or indirect
unlawful payment to any foreign or domestic government official or employee from
corporate funds; violated or is in violation of any provision of the Foreign
Corrupt Practices Act of 1977; or made any bribe, rebate, payoff, influence
payment, kickback or other unlawful payment.
(s) The financial statements included in the Exchange Act
Reports present fairly the financial position of the Company and its
consolidated Subsidiaries as of the dates shown and their results of operations
and cash flows for the periods shown, and such financial statements have been
prepared in conformity with generally accepted accounting principles in the
United States applied on a consistent basis. Arthur Andersen LLP, which is
reporting upon the audited financial statements and related notes of the Company
included in the Form 10/A, is an independent public accountant with respect to
the Company and its Subsidiaries, in accordance with the provisions of the
Securities Act and the rules and regulations of the Commission thereunder.
(t) Since the date of the latest audited financial
statements included in the Form 10/A or any Exchange Act Report, there has been
no material adverse change, nor any development or event involving a prospective
material adverse change, in the financial condition, business, properties or
results of operations of the Company and its Subsidiaries taken as a whole, and,
there has been no dividend or distribution of any kind declared, paid or made by
the Company on any class of its capital stock.
(u) The Company is not an open-end investment company, unit
investment trust or face-amount certificate company that is or is required to be
registered under Section 8 of the United States Investment Company Act of 1940
(the "Investment Company Act"), and the Company is not a closed-end investment
company required to be registered, but not registered, thereunder; and the
Company is not and, after giving effect to the offering and sale of the
Debentures, will not be an "investment company" as defined in the Investment
Company Act.
(v) The Debentures are eligible for resale pursuant to Rule
144A. No securities of the same class (within the meaning of Rule 144A(d)(3)
under the Securities Act) as the Debentures are listed on any national
securities exchange registered under Section 6 of the Exchange Act or quoted in
a U.S. automated inter-dealer quotation system.
(w) Assuming the accuracy of the representations of the
Purchaser contained in Section 4, the offer and sale of the Debentures in the
manner contemplated by this Agreement will be exempt from the registration
requirements of the Securities Act by reason of Section 4(2) thereof and
Regulation D thereunder.
(x) None of the Company, any of its affiliates or any person
acting on its or their behalf (i) has, within the six-month period prior to the
date hereof, offered or sold in the United States or to any U.S. person (as such
terms are defined in Regulation S under the Securities Act) the Debentures or
any security of the same class or series as the Debentures or (ii) has offered
or will offer or sell the Debentures (A) in the United States by means of any
form
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<PAGE> 9
of general solicitation or general advertising within the meaning of Rule 502(c)
under the Securities Act or (B) with respect to any such securities sold in
reliance on Rule 903 of Regulation S ("Regulation S") under the Securities Act,
by means of any directed selling efforts within the meaning of Rule 902(b) of
Regulation S. The Company, its affiliates and any person acting on their behalf
have complied and will comply with the offering restrictions requirement of
Regulation S. The Company has not entered and will not enter into any
contractual arrangement with respect to the distribution of the Debentures
except for this Agreement or as contemplated by the Registration Rights
Agreement.
(y) The Company is subject to Section 13 or 15(d) of the
Exchange Act.
(z) Except for any incidences of non-compliance that would
not, individually or in the aggregate, have a Material Adverse Effect, the
Company and its Subsidiaries are in compliance with the Communications Act of
1934, as amended by the Telecommunications Act of 1996 (the "Communications
Act"), and with all applicable rules, regulations and policies of the Federal
Communications Commission (the "FCC").
(aa) The Company has provided to the Purchaser a complete and
accurate list of all licenses granted to the Company and its Subsidiaries by the
FCC or other similar governmental agencies, except for any such licenses the
loss or absence of which would not, individually or in the aggregate, have a
Material Adverse Effect (the "Licenses"). All of the Licenses are currently
valid and in full force and effect. Except for any of the following which, if
decided adversely to the Company or any of its Subsidiaries, would not,
individually or in the aggregate, have a Material Adverse Effect, neither the
Company nor any of its Subsidiaries has any knowledge, with respect to the
Licenses, of any investigation, notice of apparent liability, violation,
forfeiture or other order or complaint issued by or before any court or
regulatory body, including the FCC, or of any other proceedings.
(bb) Except for events which would not, individually or in
the aggregate, have a Material Adverse Effect, no event (including, without
limitation, the Spin-Off) has occurred which (i) results in, or after notice or
lapse of time or both would result in, revocation, suspension, adverse
modification, non-renewal, impairment, restriction or termination of, or order
of forfeiture with respect to, any License or (ii) adversely affects or could
reasonably be expected in the future to adversely affect any of the rights of
the Company or any of its Subsidiaries thereunder.
(cc) Except for any violations of the following which would
not, individually or in the aggregate, have a Material Adverse Effect, the
Company and its Subsidiaries have duly filed in a timely manner all filings,
reports, applications, documents, instruments and information required to be
filed by them under the Communications Act, and all such filings are true,
correct and complete.
(dd) Except for failures to file and inaccuracies or
omissions which either individually or in the aggregate would not have a
Material Adverse Effect, the Company and each of its Subsidiaries have timely
filed all Tax Returns required to have been filed by it and all such Tax Returns
are true, correct and complete in all respects; and each affiliated group with
9
<PAGE> 10
which any of the Company and its Subsidiaries files or has filed a consolidated
or combined Tax Return has filed all such Tax Returns that it was required to
file for each taxable period during which any of the Company and its
Subsidiaries was a member of the group and all such consolidated and combined
Tax Returns were correct and complete in all respects. For purposes of this
Agreement, the term "Tax" means all taxes imposed of any nature including
federal, state, local or foreign net income tax, alternative or add-on minimum
tax, profits or excess profits tax, franchise tax, gross income, adjusted gross
income or gross receipts tax, employment related tax (including employee
withholding or employer payroll tax, FICA or FUTA), real or personal property
tax or ad valorem tax, sales or use tax, excise tax, stamp tax or duty, any
withholding or back up withholding tax, value added tax, severance tax,
prohibited transaction tax, premiums tax, occupation tax, together with any
interest or any penalty or addition to tax by any governmental authority
(domestic or foreign) responsible for the imposition of any such tax. The term
"Tax Return" means all returns, reports, forms or other information required to
be filed with respect to any Tax.
(ee) Except for failures to pay which either individually or
in the aggregate would not have a Material Adverse Effect, all Taxes due and
payable by the Company and its Subsidiaries (whether or not shown on any Tax
Return) have been timely paid in full, and all income Taxes owed by any
affiliated group with which any of the Company and its Subsidiaries files or has
filed consolidated or combined Tax Return (whether or not shown on any Tax
Return) have been paid in full for each taxable period during which any of the
Company and the Subsidiaries was a member of the group.
(ff) Except for Taxes which either individually or in the
aggregate would not have a Material Adverse Effect, the charges, accruals and
reserves for Taxes (including deferred Taxes) currently reflected on the
financial statements contained in the Exchange Act Report are adequate to cover
all unpaid Taxes accruing or payable by the Company and its Subsidiaries in
respect of taxable periods that end on or before the Closing Date and for any
taxable periods that begin before the Closing Date and end thereafter to the
extent such Taxes are attributable to the portion of such period ending on the
Closing Date (determined under the closing of the books method of allocation).
(gg) The Spin-Off qualifies as a tax-free distribution
pursuant to Section 355 of the Code and neither the Company nor any of its
Subsidiaries will recognize any gain as a result thereof either directly or
indirectly including without limitation pursuant to Treasury Regulation Section
1.1502-6 (or any similar provision of state, local or foreign law) or pursuant
to any contract or agreement. The ruling letter dated July 28, 1998 addressing
the federal income tax consequences of the Spin-Off issued to Parent by the
Internal Revenue Service (the "IRS"), as supplemented by the letter dated March
25, 1999 issued to Parent by the IRS (collectively, the "Ruling") is in full
force and effect and the Company has no knowledge of any action on its part or
the part of the IRS to amend, modify or terminate such Ruling.
(hh) Each of the Agreement and Plan of Distribution (the
"Distribution Agreement") dated April 9, 1999 between the Company and the
Parent, the Spectrum Allocation and Non-Competition Agreement dated May 3, 1999
between the Company and the Parent (the
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<PAGE> 11
"Non-Competition Agreement"), and the Tax Sharing Agreement dated February 17,
1998, and the First Amendment thereto dated May 3, 1999, in each case between
the Company, the Parent and Hutchinson Telecommunications PCS (USA) Limited (the
"Tax Agreement," and collectively with the Distribution Agreement and the
Non-Competition Agreement, the "Parent Agreements") is a binding and enforceable
obligation of each of the Company and the Parent except as enforcement thereof
may be limited by bankruptcy, insolvency (including, without limitation, all
laws relating to fraudulent transfers), reorganization, moratorium or similar
laws affecting enforcement of creditors' rights generally and except as
enforcement thereof is subject to general principles of equity (regardless of
whether enforcement is considered in a proceeding in equity or in law) and
except for the non-competition provisions of the Non-Competition Agreement, as
to which no representation or warranty is made. Except (i) for the Parent
Agreements, (ii) for any contract, indenture, mortgage, deed of trust, loan or
credit agreement, note, lease or other agreement or instrument disclosed in the
Form 10/A or not required to be so disclosed or (iii) as disclosed in Schedule
2(hh) attached hereto, after giving effect to the Spin-Off and the consummation
of the transactions contemplated by the Distribution Agreement neither the
Company nor any of its Subsidiaries will be parties to, or bound by the terms
of, nor will any of their respective assets be subject to any obligations
arising under, any contract, indenture, mortgage, deed of trust, loan or credit
agreement, note, lease or other agreement or instrument to which the Parent or
any of its subsidiaries (excluding for this purpose, the Company and its
Subsidiaries) is then a party or by which any of them may then be bound. The
shares of Company common stock which are the subject of the Spin-Off are not
subject to any preemptive or similar rights. The completion of the Spin-Off in
the manner described in the Information Statement and as provided in the
Distribution Agreement will not (i) whether with or without the giving of notice
or the passage of time or both, constitute a breach of, or default or Repayment
Event under, or result in the creation or imposition of any Encumbrance upon any
property or assets of the Company, the Parent or any of their respective
subsidiaries pursuant to, any contract, indenture, mortgage, deed of trust, loan
or credit agreement, note, lease or other agreement or instrument to which the
Company, the Parent or any of their respective subsidiaries is a party or by
which any of them may be bound, or to which any of the property or assets of any
of them is subject (except for such conflicts, breaches or defaults or
Encumbrances as would not, individually or in the aggregate, have a Material
Adverse Effect) or (ii) result in any violation of (A) the provisions of the
respective organizational documents of the Company, the Parent or any of their
respective subsidiaries or (B) any applicable law, statute, rule, regulation,
judgment, order, writ or decree of any government, government instrumentality or
court, domestic or foreign, having jurisdiction over the Company, the Parent or
any of their respective subsidiaries or any of their respective assets,
properties or operations (except for such violations as would not, individually
or in the aggregate, have a Material Adverse Effect and would not, individually
or in the aggregate, materially adversely affect the validity or enforceability
of this Agreement or the other agreements contemplated hereby). The distribution
of the common stock of the Company contemplated by the Distribution Agreement
will be exempt from the registration requirements of the Securities Act and will
be exempt from the registration or qualification requirements of all state and
foreign securities or blue sky laws or will have been so registered or
qualified. After giving effect to such the Spin-Off, the Parent will be
"solvent." As used herein, the term "solvent" means that on such date (A) the
fair value of the assets of the Parent, on a consolidated basis with its
subsidiaries, is greater than the total amount of liabilities (including
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<PAGE> 12
contingent liabilities) of the Parent, on a consolidated basis with its
subsidiaries, (B) the present fair salable value of the assets of the Parent, on
a consolidated basis with its subsidiaries, is greater than the amount that will
be required to pay the probable liabilities of the Parent, on a consolidated
basis with its subsidiaries, on its debts as they become absolute and matured,
(C) the Parent, on a consolidated basis with its subsidiaries, is able to pay
its debts and other liabilities, including contingent obligations, as they
mature and (D) the Parent, on a consolidated basis with its subsidiaries, is not
engaged in business or a transaction, and is not about to engage in business or
a transaction, for which it has an unreasonably small capital
3. PURCHASE, SALE AND DELIVERY OF DEBENTURES.
(a) On the basis of the representations, warranties and
agreements herein contained, but subject to the terms and conditions herein set
forth, the Company agrees to sell to the Purchaser, and the Purchaser agrees to
purchase from the Company, the Initial Debentures, at an aggregate purchase
price of $400,000,000.
(b) The Company will deliver, against payment of the
purchase price therefor, the Debentures to be purchased by the Purchaser
hereunder in the form of one or more permanent global certificates in definitive
form (the "Restricted Global Securities"), deposited with Harris Trust Company
of California, as custodian for the Depository Trust Company ("DTC"), and
registered in the name of Cede & Co., as nominee for DTC. Interests in the
Restricted Global Securities will be held only in book-entry form through DTC,
except as provided in the Indenture and in compliance with applicable DTC
policies with respect to definitive certificates ("Certificates") representing
the Debentures registered in the name of the Purchaser or its nominee. Each such
certificate shall include the legends required by the terms of the Indenture.
(c) Payment for the Initial Debentures shall be made by the
Purchaser in Federal (same day) funds by wire transfer to an account previously
designated by the Company, at the office of Gibson, Dunn & Crutcher LLP, 200
Park Avenue, New York, New York 10166-0193 at 10:00 A.M. (Eastern Daylight
Time), on May 14, 1999, or at such other time not later than seven full business
days thereafter as the Purchaser and the Company determine, such time being
herein referred to as the "Closing Date," against delivery to Harris Trust
Company of California, as custodian for the DTC of the Restricted Global
Securities, representing the Initial Debentures.
(d) In consideration of the purchase by the Purchaser of the
Initial Debentures, the Company shall pay to the Purchaser a placement fee (the
"Placement Fee") equal to $30 per Initial Debenture purchased. The Placement Fee
shall be paid by the Company to the Purchaser on the Closing Date by way of
reduction in the payment to be made by the Purchaser pursuant to Section 3(c).
If, prior to the date that is 18 months after the Closing Date, the Purchaser
then holds Debentures and the Company elects to redeem all or a portion of such
Debentures for cash, such redemption will be net of the pro rata portion of the
aggregate Placement Fee, based upon the percentage of the total Initial
Debentures being redeemed. In addition, if the Purchaser sells all of the
Debentures (including all Additional Debentures) acquired hereunder through
underwriters or placement agents prior to the date that is 18 months after the
Closing Date as permitted hereunder or pursuant to the Registration Rights
Agreement, and the aggregate
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<PAGE> 13
commissions or placement fees paid by the Purchaser to such underwriters or
placement agents are less than the aggregate Placement Fee, the Purchaser shall
refund to the Company the difference between such aggregate commissions or
placement fees paid by the Purchaser and the aggregate Placement Fee promptly
following the completion of such sale.
4. REPRESENTATIONS AND AGREEMENTS BY PURCHASER.
(a) The Purchaser represents and warrants to the Company
that it is an "accredited investor" within the meaning of Regulation D under the
Securities Act.
(b) The Purchaser acknowledges that the Debentures have not
been registered under the Securities Act and may not be offered or sold within
the United States for the account or benefit of U.S. persons whether within or
without the United States except pursuant to an exemption from the registration
requirements of the Securities Act. The Purchaser represents and agrees that it
has not offered, sold or delivered and it will not offer, sell or deliver any of
the Debentures in any jurisdiction except under circumstances that will result
in compliance with the applicable laws thereof, and that it will take at its own
expense whatever action is required to permit its purchase and resale of the
Debentures in any such jurisdiction (other than in the United States). Each such
offer of sale shall only be made (i) to persons whom the Purchaser reasonably
believes to be Qualified Institutional Buyers (as defined in Rule 144A under the
Securities Act), (ii) to non-U.S. persons outside the United States (which shall
include dealers or other professional fiduciaries in the United States acting on
a discretionary basis for beneficial owners (other than an estate or trust) that
are non-U.S. persons) to whom the Purchaser reasonably believes offers and sales
of the Debentures may be made in reliance upon Regulation S under the Securities
Act and applicable securities legislation of the relevant jurisdiction, (iii) to
other "accredited investors" within the meaning of Regulation D under the
Securities Act or (iv) as may otherwise be contemplated by the Registration
Rights Agreement. The Purchaser will take reasonable steps to inform, and cause
each of its affiliates to take reasonable steps to inform, persons acquiring
Debentures from the Purchaser or affiliate, as the case may be, in the United
States (the "Subsequent Purchasers") that the Debentures (A) have not been and
will not be registered under the Securities Act, (B) are being sold to such
Subsequent Purchasers without registration under the Securities Act in reliance
on Rule 144A or in accordance with another exemption from registration under the
Securities Act, as the case may be, and (C) may not be offered, sold or
otherwise transferred except in compliance with the Securities Act.
(c) The Purchaser agrees that if it determines to offer and
sell the Debentures, when permitted hereunder, in accordance with Regulation S,
that it will offer and sell such Debentures in accordance with Rule 903 or
Regulation S and that neither the Purchaser nor any of its affiliates, nor any
persons acting on its or their behalf, will engage in any directed selling
efforts with respect to the Debentures, and the Purchaser, its affiliates and
all persons acting on its or their behalf will comply with the offering
restrictions requirement of Regulation S. The Purchaser agrees that, at or prior
to confirmation of sale of the Debentures, other than a sale pursuant to Rule
144A permitted hereunder, the Purchaser will have sent to each distributor,
dealer or person receiving a selling concession, fee or other remuneration that
purchases the
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<PAGE> 14
Debentures from it during the restricted period a confirmation or notice to
substantially the following effect:
"The Securities covered hereby have not been registered under
the U.S. Securities Act of 1933 (the "Securities Act") and may
not be offered or sold except in accordance with Regulation S
(or Rule 144A if available) under the Securities Act."
Unless otherwise defined herein, terms used in this subsection
have the meanings given to them by Regulation S.
(d) Subject to the limitations set forth in clause (f)
below, the Purchaser agrees that if it determines to offer and sell the
Debentures in accordance with Rule 144A under the Securities Act ("Rule 144A"),
that it and each of its affiliates will offer and sell such Debentures in
accordance with Rule 144A under the Securities Act and will not offer or sell
the Debentures in the United States by means of any form of general solicitation
or general advertising within the meaning of Rule 502(c) under the Securities
Act, including, but not limited to (i) any advertisement, article, notice or
other communication published in any newspaper, magazine or similar media or
broadcast over television or radio, or (ii) any seminar or meeting whose
attendees have been invited by any general solicitation or general advertising.
The Purchaser agrees, with respect to resales made in reliance on Rule 144A of
any of the Debentures, to deliver either with the confirmation of such resale or
otherwise prior to settlement of such resale a notice to the effect that the
resale of such Debentures has been made in reliance upon the exemption from the
registration requirements of the Securities Act provided by Rule 144A.
(e) The Purchaser represents and agrees that (i) it has not
offered or sold and, prior to the date that is six months after the date of
issue of the Debentures, will not offer or sell any Debentures when permitted
hereunder, to persons in the United Kingdom except to persons whose ordinary
activities involve them in acquiring, holding, managing or disposing of
investments (as principal or agent) for the purposes of their businesses or
otherwise in circumstances which have not resulted and will not result in an
offer to the public in the United Kingdom within the meaning of the Public
Offers of Securities Regulations 1995; (ii) it has complied and will comply with
all applicable provisions of the Financial Services Act 1986 with respect to
anything done by it in relation to the Debentures in, from or otherwise
involving the United Kingdom; and (iii) it has only issued or passed on and will
only issue or pass on in the United Kingdom any document received by it in
connection with the issue of the Debentures to a person who is of a kind
described in Article 11(3) of the Financial Services Act 1986 (Investment
Advertisements) (Exemptions) Order 1996 or is a person to whom such document may
otherwise lawfully be issued or passed on.
(f) Unless otherwise agreed, the Purchaser shall not,
directly or indirectly, offer or sell the Debentures to third parties until the
earlier of (i) the date which is 120 days after the Closing Date or (ii) the
date of completion of an offering by the Company of high yield debt securities
(the "Note Offering"); provided, however, that the Purchaser may offer (but not
sell, or
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<PAGE> 15
agree to sell) the Debentures to each of NTFC Capital Corporation and Export
Development Corporation.
5. CERTAIN AGREEMENTS OF THE COMPANY. The Company agrees with the
Purchaser that:
(a) Except as provided in Section 5(b), the Company will pay
all expenses incidental to the performance of the Company's obligations under
this Agreement, the Indenture and the Registration Rights Agreement attached
hereto as Exhibit B, including (i) all fees and expenses incurred by the Company
in connection with negotiating this Agreement and the documents attached hereto,
including the fees and expenses of legal counsel and accountants to the Company
and other costs and expenses incurred by the Company in connection therewith,
(ii) all expenses incurred in connection with the execution, issue, packaging
and initial delivery of the Debentures or the Exchange Securities (as defined in
the Registration Rights Agreement, and collectively with the Debentures, the
"Securities"), the preparation and printing of the Securities, any offering
document and amendments and supplements thereto, and any other document relating
to the issuance, offer, sale and delivery of the Securities; (iii) the costs of
qualifying the Securities for trading in the Private Offerings, Resale and
Trading through Automated Linkages (PORTAL) market and any expenses incidental
thereto; (iv) the costs of obtaining ratings for the Securities from such rating
agencies as the Purchaser may reasonably request; (v) the costs of any
advertising approved by the Company in connection with the issue of the
Securities or subsequent resales by the Purchaser of the Securities; (vi) any
expenses (including fees and disbursements of counsel) incurred in connection
with qualification of the Securities for sale under the laws of such
jurisdictions in the United States and Canada as the Purchaser designates and
the preparation and printing of memoranda relating thereto; (vii) all expenses
incurred in printing and distributing preliminary and definitive Offering
Memoranda and Registration Statements (as such terms are defined in the
Registration Rights Agreement) and any amendments and supplements thereto;
(viii) the fees and expenses of the Trustee (or any successor trustee) under the
Indenture or any successor indenture and the fees and expenses of the Trustee's
(or such successor trustee's) legal counsel; (ix) all filing fees with the
Commission in respect of such registrations of the Securities as may be required
pursuant to the Registration Rights Agreement; (x) the fees and expenses of
counsel for the Company and of its independent public accountants, including the
expenses of any special audits or "cold comfort" letters, incurred in connection
with such preliminary and definitive Offering Memoranda and Registration
Statements, and such registrations of the Securities, as may be required
pursuant to the Registration Rights Agreement; (xi) the travel and other
out-of-pocket costs and expenses (including salaries and other compensation of
participating individuals) of making available officers of the Company to attend
and make presentations and answer questions at a meeting or meetings of
prospective investors as contemplated by Sections 1(d) and 4(f) of the
Registration Rights Agreement; (xii) all NASD filing fees incurred in connection
with the offer, sale, delivery or resale of any of the Securities; and (xiii)
the costs of obtaining such CUSIP numbers as may be required for the Securities.
(b) Notwithstanding Section 5(a) hereof, the Purchaser will
reimburse the Company for (i) the reasonable fees and expenses of counsel for
the Company and of its
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<PAGE> 16
independent public accountants, including the expenses of any special audits or
"cold comfort" letters, incurred in connection with any Resale Registration
Statement (as defined in the Registration Rights Agreement) requested by the
Purchaser or any of its Affiliates; (ii) all expenses reasonably incurred in
printing and distributing preliminary and definitive Resale Registration
Statements and any amendments and supplements thereto; and (iii) the reasonable
travel and other out-of-pocket costs and expenses (other than salaries and other
compensation of participating individuals) of the Company incurred in making
available officers of the Company to attend and make presentations and answer
questions at a meeting or meetings of prospective investors as contemplated by
Section 4(f) of the Registration Rights Agreement; provided, however, that the
Purchaser shall not have any obligation to reimburse the Company for any of the
foregoing expenses to the extent that (1) the Company would have incurred such
expenses had the Purchaser not requested the relevant Resale Registration
Statement or (2) such expenses are increased by reason of the Company's exercise
of any Registration Delay (as that term is defined in the Registration Rights
Agreement).
(c) The Purchaser will pay all expenses incidental to the
performance of the Purchaser's obligations under this Agreement, the Indenture
and the Registration Rights Agreement attached hereto as Exhibit B, including
(i) all fees, costs and expenses incurred by the Purchaser in connection with
negotiating this Agreement and the documents attached hereto, including the fees
and expenses of legal counsel to the Purchaser and of TD Securities, Inc. in its
capacity as financial advisor to the Purchaser and other costs and expenses
incurred by the Purchaser in connection therewith; (ii) the fees and expenses of
counsel for the Purchaser incurred in connection with such Resale Registration
Statements as may be requested by the Purchaser pursuant to the Registration
Rights Agreement; (iii) all fees, costs and expenses of the Purchaser and its
underwriters or placement agents (and their respective counsel) incurred in
connection with the exchange of the Exchange Securities for the Debentures or
the offer for resale or resale of any Securities pursuant to the Offering
Memorandum, the Exchange Registration Statement, the Shelf Registration
Statement (as such terms are defined in the Registration Rights Agreement) or
any Resale Registration Statement; (iv) all agency fees and commissions,
underwriting discounts and commissions, and placement fees payable in connection
with the resale of any of the Securities; (v) the costs and expenses (including
attorneys' fees and expenses) of such underwriters and placement agents as the
Purchaser may engage in connection with such Resale Registration Statements as
may be requested by the Purchaser pursuant to the Registration Rights Agreement;
and (vi) the costs and expenses of a meeting or meetings of prospective
investors as contemplated by Sections 1(d) and 4(f) of the Registration Rights
Agreement other than those costs and expenses to be borne by the Company as
provided in Sections 5(a) and (b) hereof; provided, however, that at the Closing
the Company will pay to the Purchaser the sum of $250,000 as reimbursement for
the fees and expenses incurred by the Purchaser in connection with negotiating
this Agreement and the documents attached hereto, including the fees and
expenses of legal counsel to the Purchaser and of TD Securities, Inc. in its
capacity as financial advisor to the Purchaser and other costs and expenses
incurred by the Purchaser in connection therewith, it being understood by the
Company that the Purchaser has represented to the Company that such fees and
expenses incurred through the date of this Agreement are not less than the
foregoing sum of $250,000.
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(d) Following the expiration of the time period described in
Section 4(f), until the earlier of (i) the completion of the sale by the
Purchaser of all of the Debentures to third parties, (ii) a period of 90 days
following the expiration of the time period described in Section 4(f) or (iii)
the date upon which the Company files the Exchange Offer Registration Statement
(as defined in the Registration Rights Agreement), without the prior written
consent of the Purchaser neither the Company nor any of its Subsidiaries will
offer, sell, contract to sell, pledge or otherwise dispose of, directly or
indirectly, or file with the Commission a registration statement under the
Securities Act covering the sale by the Company of any of the following
securities if to do so would reasonably be expected to have a material adverse
effect on the sale of the Debentures subject thereto:
(i) (A) any preferred stock or (B) any other
securities of the Company which are substantially similar to the Debentures,
(ii) any debentures, notes or other evidence of
indebtedness of the Company or any other debt securities of the Company, or
(iii) any other securities which are convertible into,
or exercisable or exchangeable for, any of the securities described in clauses
(i) and (ii),
except the offer, sale, contract to sell, or other disposition of (A) the
Debentures, (B) substantially similar notes or other debt securities issued
pursuant to a registered "A/B exchange" in respect of notes or other debt
securities sold by the Company pursuant to Section 4(2) of or Regulation S or
Rule 144A promulgated under the Securities Act, (C) securities issued or
delivered upon conversion, exchange or exercise (in each case, other than at the
option of the Company) of any other securities of the Company or any of its
subsidiaries outstanding on the date hereof, or (D) securities issued in
connection with mergers, acquisitions or similar transactions.
(e) The Company will not and will cause its affiliates not
to make any offer or sale of securities of the Company of any class if, as a
result of the doctrine of "integration" referred to in Rule 502 under the
Securities Act, such offer or sale would render invalid (for the purpose of (i)
the sale of the Debentures by the Company to the Purchaser or (ii) the resale of
the Debentures by the Purchaser to subsequent purchasers during the period
described in Section 5(b) hereof) the exemption from the registration
requirements of the Securities Act provided by Section 4(2) thereof or by Rule
144A thereunder or otherwise.
(f) During the period of two years after the Closing Date,
the Company will not, and will not permit any of its affiliates (as defined in
Rule 144 under the Securities Act) to, resell any of the Debentures that have
been reacquired by any of them.
(g) During the period of two years after the Closing Date,
the Company will not be or become an open-end investment company, unit
investment trust or face-amount certificate company that is or is required to be
registered under Section 8 of the Investment Company Act, and the Company is
not, or will not be or become, a closed-end investment company required to be
registered under the Investment Company Act.
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<PAGE> 18
(h) Until the Purchaser shall have notified the Company of
the completion of the resale of the Debentures, neither the Company nor any of
its affiliates has or will, either alone or with one or more other persons, bid
for or purchase for any account in which it or any of its affiliates has a
beneficial interest any Debentures or attempt to induce any person to purchase
any Debentures; and neither it nor any of its affiliates will make bids or
purchases for the purpose of creating actual, or apparent, active trading in, or
of raising the price of, the Debentures.
(i) The Company will cause each Offered Security to bear the
legend set forth in Section 3 above until such legend shall no longer be
necessary or advisable because the Debentures are no longer subject to the
restrictions on transfer described therein.
(j) If the Company does not consummate a Debt Offering (as
defined in the Indenture) within 120 days after the Closing Date, the Company
will amend the Indenture to reflect the fact that the mandatory covenant
amendment provisions of Section 1020(a) of the Indenture are no longer
applicable.
(k) If a supplemental Indenture is prepared for purposes of
an amendment to the Indenture arising under Section 1020(a) thereof, the Company
will deliver a copy of such supplemental Indenture to the Purchaser and will
provide the Purchaser reasonable opportunity to comment upon such supplemental
Indenture prior to the execution thereof.
(l) As promptly as practicable (and in any event prior to
the issuance of any Additional Debentures for the account of any person other
than the Purchaser), the Company will prepare a supplemental indenture to
provide that, if the Company elects to pay any interest by the issuance of
Additional Debentures as permitted under the Indenture, (i) such Additional
Debentures shall be issued in an amount that is allocable in denominations of
$1,000 and integral multiples thereof among each of direct and indirect
participants in the registered owner of the global notes that have beneficial
interests in the Debentures, as determined pursuant to procedures reasonably
acceptable to the Company and the Trustee and (ii) any interest then due that is
not paid by issuance of such Additional Debentures shall be paid in cash and
distributed among such direct and indirect participants, as determined pursuant
to procedures reasonably acceptable to the Company and the Trustee. The Company
and the Purchaser hereby acknowledge and agree that any such supplemental
indenture will be covered by Section 901 of the Indenture.
6. CONDITIONS OF THE OBLIGATIONS OF THE PURCHASER. The obligation
of the Purchaser to purchase and pay for the Initial Debentures will be subject
to the accuracy of the representations and warranties on the part of the Company
herein, to the accuracy of the written statements of officers of the Company
made pursuant to the provisions hereof, to the performance by the Company of its
obligations hereunder and to the following additional conditions precedent:
(a) The Purchaser shall have received a letter, dated as of
a date not more than five (5) days prior to the Closing Date, of Arthur Andersen
LLP, in agreed form, confirming that they are independent public accountants
within the meaning of the Securities Act and the
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<PAGE> 19
applicable published rules and regulations thereunder ("Rules and Regulations")
and stating to the effect that:
(i) in their opinion the financial statements
examined by them and included in the Exchange Act Reports comply as to
form in all material respects with the applicable accounting
requirements of the Securities Act and the related published Rules and
Regulations; and
(ii) on the basis of a reading of the latest
available interim financial statements of the Company, inquiries of
certain officials of the Company who have responsibility for financial
and accounting matters and other specified procedures, nothing came to
their attention that caused them to believe that:
(A) as of a date not more than five (5) days
prior to the Closing Date, there was any change in the capital
stock or additional paid-in capital, increase in short-term
indebtedness or long-term debt and capital lease obligations of
the Company and its consolidated Subsidiaries or any decreases
in consolidated net current assets or stockholders' equity of
the consolidated companies as compared with amounts shown on the
December 31, 1998 consolidated balance sheet included in the
Exchange Act Reports; or
(B) for the period from December 31, 1998 to
a date not more than five (5) days prior to the Closing Date
there were any decreases, as compared with the corresponding
period in the preceding year, in consolidated operating
revenues, increase in operating loss, increase in the total
amount of net loss, or increase in the amount that earnings were
inadequate to cover combined fixed charges and preferred stock
dividends, except in all cases set forth in clauses (A) and (B)
above for changes, increases or decreases which are described in
such letter.
(b) Between the date of this Agreement and the Closing Date
there shall not have been a material adverse change in, or the occurrence of an
event, condition or state of facts that could reasonably be expected to have a
material adverse change in, the financial condition, business, properties or
results of operations of the Company and its Subsidiaries taken as a whole.
(c) The Purchaser shall have received an opinion, dated the
Closing Date, of Friedman Kaplan & Seiler LLP, counsel for the Company,
substantially in the form of Exhibit "C" hereto.
(d) The Purchaser shall have received an opinion, dated the
Closing Date, of Gurman Blask & Freedman, Chartered, telecommunications counsel
for the Company, substantially in the form of Exhibit "D" hereto.
(e) The Purchaser shall have received a certificate, dated
the Closing Date, of the Chief Executive Officer or any Vice President and a
principal financial or accounting officer
19
<PAGE> 20
of the Company in which such officers, to the best of their knowledge after
reasonable investigation, shall state (i) that the representations and
warranties of the Company in this Agreement that are not, by their terms,
qualified by a materiality standard, including, without limitation, by a
reference to the absence or non-occurrence of a Material Adverse Effect, are
true and correct, except for such inaccuracies therein as would not,
individually or in the aggregate, have a Material Adverse Effect, (ii) that the
representations and warranties of the Company in this Agreement that are, by
their terms, qualified by a materiality standard, including, without limitation,
by a reference to the absence or non-occurrence of a Material Adverse Effect,
are true and correct, (iii) that the Company has complied with all agreements
and satisfied all conditions on its part to be performed or satisfied hereunder
at or prior to the Closing Date, and that, subsequent to the dates of the most
recent financial statements contained in the Exchange Act Reports there has been
no material adverse change, nor any development or event involving a prospective
material adverse change, in the condition (financial or other), business,
properties or results of operations of the Company and its Subsidiaries, taken
as a whole, except as set forth in or as described in such certificate.
(f) The Purchaser shall have received from counsel for the
Purchaser, such opinion or opinions, dated the Closing Date, with respect to the
incorporation of the Company, the validity of the Debentures, the exemption from
registration for the offer and sale of the Debentures by the Company to the
Purchaser and such other related matters as the Purchaser may require, and the
Company shall have furnished to such counsel such documents as they request for
the purpose of enabling them to pass upon such matters.
(g) The Purchaser shall have received an opinion, dated the
Closing Date, of Preston, Gates & Ellis LLP, Washington counsel for the Company,
substantially in the form of Exhibit "E" hereto.
(h) The Company's Articles of Incorporation and Bylaws shall
be in the forms attached hereto as Exhibit "F" and Exhibit "G," respectively.
(i) The Spin-Off shall have been completed in the manner
described in the Information Statement and in accordance with the Distribution
Agreement as in effect on the date hereof.
(j) Each of the Parent Agreements shall have been duly
authorized, executed and delivered and shall then be in full force and effect in
the forms thereof included as Exhibits to the Form 10/A.
(k) The Registration Rights Agreement shall have been duly
authorized, executed and delivered by the Company in the form thereof attached
hereto as Exhibit B and shall be in full force and effect.
(l) At the Closing, counsel for the Purchaser shall have
been furnished with such documents and opinions as they may require for the
purpose of enabling them to pass upon the issuance and sale of the Debentures as
herein contemplated, or in order to evidence the accuracy of any of the
representations or warranties, or the fulfillment of any of the conditions,
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<PAGE> 21
herein contained; and all proceedings taken by the Company in connection with
the issuance and sale of the Debentures as herein contemplated shall be
satisfactory in form and substance to the Purchaser and counsel for the
Purchaser.
7. INDEMNIFICATION AND CONTRIBUTION.
(a) The Company will indemnify and hold harmless the
Purchaser against any losses, claims, damages or liabilities, joint or several,
to which the Purchaser 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
the Exchange Act Reports or any offering document used by the Purchaser in
connection with a resale of the Debentures permitted hereunder, 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 the
Purchaser for any legal or other expenses reasonably incurred by the 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, 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 the Purchaser specifically for use therein; provided further,
however, that with respect to any untrue statement or alleged untrue statement
in or omission or alleged omission from any offering document, the indemnity
agreement contained in this subsection (a) shall not inure to the benefit of the
Purchaser if the Purchaser sold the Debentures concerned to the person asserting
any such losses, claims, damages or liabilities, to the extent that such sale
was an initial resale by the Purchaser and any such loss, claim, damage or
liability of the Purchaser results from the fact that there was not sent or
given to such person, at or prior to the written confirmation of the sale of
such Debentures to such person, a copy of the offering document if the Company
had previously furnished copies thereof to the Purchaser and such offering
document corrected such untrue statement or omission or alleged untrue statement
or omission.
(b) The Purchaser will 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 breach of the representations of the
Purchaser contained herein or any offering document used by the Purchaser in
connection with a resale of the Debentures permitted hereunder, 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 the Purchaser
specifically for use therein, and will reimburse any legal or other expenses
reasonably incurred by the Company
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<PAGE> 22
in connection with investigating or defending any such loss, claim, damage,
liability or action as such expenses are incurred.
(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
otherwise than under subsection (a) or (b) above. In case any such action is
brought against any indemnified party, it shall notify 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
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 Purchaser on the other from the offering of
the Debentures 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 Purchaser 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 the Purchaser on the other shall be deemed to be in the same proportion as
the total net proceeds from the offering (before deducting expenses) received by
the Company bear to the total discounts and commissions received by the
Purchaser from the Company under this Agreement. 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 the Purchaser
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 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
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<PAGE> 23
connection with investigating or defending any action or claim which is the
subject of this subsection (d). Notwithstanding the provisions of this
subsection (d), the Purchaser shall not be required to contribute any amount in
excess of the amount by which the total price at which the Debentures purchased
by it were resold exceeds the amount of any damages which the Purchaser has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission.
(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 person, if any, who controls
the Purchaser within the meaning of the Securities Act or the Exchange Act; and
the obligations of the Purchaser under this Section shall be in addition to any
liability which the Purchaser may otherwise have and shall extend, upon the same
terms and conditions, to each person, if any, who controls the Company within
the meaning of the Securities Act or the Exchange Act.
8. SURVIVAL OF CERTAIN REPRESENTATIONS AND OBLIGATIONS. The
respective indemnities, agreements, representations, warranties and other
statements of the Company or its officers and of the Purchaser set forth in or
made pursuant to this Agreement will remain in full force and effect, regardless
of any investigation, or statement as to the results thereof, made by or on
behalf of the Purchaser, the Company or any of their respective representatives,
officers or directors or any controlling person, and will survive delivery of
and payment for the Initial Debentures by the Purchaser, and the parties hereto
may bring a cause of action against any other party hereto for any breach of any
such agreements, representations, warranties and other statements. If for any
reason the purchase of the Initial Debentures by the Purchaser is not
consummated, the Company shall remain responsible for the expenses to be paid or
reimbursed by it pursuant to Sections 5(a) and (c) and the respective
obligations of the Company and the Purchaser pursuant to Section 7 shall remain
in effect.
9. NOTICES. All communications hereunder will be in writing and, if
sent to the Purchaser will be mailed, delivered or faxed and confirmed to the
Purchaser at Nortel Networks Inc., 2221 Lakeside Blvd., Richardson, Texas 75082
(facsimile: 972-684-3679), Attention: Vice President, Customer Finance, North
America, with a copy to Gibson, Dunn & Crutcher LLP, 333 S. Grand Avenue, Los
Angeles, California 90071 (facsimile: 213-229-6979), Attention: Bruce D. Meyer
or, if sent to the Company, will be mailed, delivered or electronically
transmitted and confirmed to it at 3650 131st Avenue SE, Bellevue, WA 98006
(facsimile: 425-586-8090), Attention: General Counsel.
10. SUCCESSORS. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the
controlling persons referred to in Section 7, and no other person will have any
right or obligation hereunder.
12. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
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<PAGE> 24
13. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD
TO PRINCIPLES OF CONFLICTS OF LAWS.
14. KNOWLEDGE. As used herein, the phrases "to the knowledge of the
Company," "to the Company's knowledge," "has any knowledge" or other similar
knowledge qualifiers shall refer to the actual knowledge of any of the directors
or executive officers of the Company and the actual knowledge of any of the
directors or executive officers of any Subsidiaries of the Company, in each case
after reasonable due inquiry.
The Company hereby submits to the non-exclusive jurisdiction of the
Federal and state courts in the Borough of Manhattan in The City of New York in
any suit or proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby.
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<PAGE> 25
If the foregoing is in accordance with the Purchaser's understanding of
our agreement, kindly sign and return to us one of the counterparts hereof,
whereupon it will become a binding agreement between the Company and the
Purchaser in accordance with its terms.
Very truly yours,
VOICESTREAM WIRELESS CORPORATION
By: /s/ Cregg Baumbaugh
-------------------------------------
Name: Cregg Baumbaugh
Title: Executive Vice President
The foregoing Purchase Agreement
is hereby confirmed and accepted
as of the date first above written.
NORTEL NETWORKS INC.
By: /s/ Michael McCorkle
---------------------------------
Name: Michael McCorkle
Title: Director, Customer Finance
Purchase Agreement
S-1
<PAGE> 1
EXHIBIT 4.4
VOICESTREAM WIRELESS CORPORATION
12% SERIES A SENIOR DEBENTURES DUE 2011
DEBENTURE EXCHANGE AND
REGISTRATION RIGHTS AGREEMENT
May 14, 1999
Nortel Networks Inc.
2221 Lakeside Boulevard
Richardson, Texas 75082-4399
Dear Sirs:
VoiceStream Wireless Corporation, a Washington corporation (the
"Company"), proposes to issue and sell to Nortel Networks Inc. (the "Initial
Purchaser"), upon the terms set forth in a purchase agreement dated as of May
14, 1999 (the "Purchase Agreement"), $400,000,000 principal amount of its 12%
Series A Senior Debentures due 2011 (the "Debentures") issued under an indenture
dated as of May 14, 1999 (the "Indenture"). As an inducement to the Initial
Purchaser, the Company agrees with the Initial Purchaser, for the benefit of the
holders from time to time of Transfer Restricted Securities (including, without
limitation, the Initial Purchaser, collectively, the "Holders"), as follows:
1. SALE NOT INVOLVING PUBLIC DISTRIBUTION. Upon the earlier to
occur of (i) one hundred twenty (120) days after the Issue Date and (ii) the
tenth (10th) business day after the date that the Company has consummated the
offering and sale of any high yield debt securities (in either case, the
"Required Delivery Date"), the provisions of this Section 1 shall be applicable:
(a) Initial Offering Memorandum. The Company shall, not later than
the Required Delivery Date, deliver to the Initial Purchaser a confidential
offering memorandum (the "Initial Offering Memorandum"), with respect to the
Initial Securities, pursuant to which the Initial Purchaser may offer to sell
the Initial Securities in transactions intended to qualify for the exemption
from registration under the Securities Act of 1933, as amended (the "Securities
Act") afforded by Rule 144A or by Regulation S promulgated under the Securities
Act. The Initial Offering Memorandum shall be reasonably satisfactory as to form
and substance to the Initial Purchaser; provided that such Initial Offering
Memorandum shall be in a form customary for a Rule 144A/Regulation S Offering
Memorandum for similar securities where the initial purchaser is an investment
banking firm (i.e., in the nature of a Form S-1 Registration Statement); and
provided further that, as to substance, the Initial Purchaser shall be entitled
to require changes in the Initial Offering Memorandum only to the extent that
such changes are related to disclosure that the Initial Purchaser believes is
necessary to comply with applicable law, including, without limitation, Rule
10b-5 promulgated under the Exchange Act. If, in its reasonable discretion, the
Initial Purchaser elects to delay the offering or sale of the Initial
Securities, the Company agrees
<PAGE> 2
to make any modifications, supplements or amendments to the Initial Offering
Memorandum that would be required so that the Initial Offering Memorandum, when
delivered by the Initial Purchaser in connection with the offering or sale of
the Initial Securities, will comply with applicable law, including, without
limitation Rule 10b-5 promulgated under the Exchange Act.
(b) Selection of Placement Agents. The investment banker or
investment bankers and manager or managers that will act as placement agent with
respect to any offering pursuant to the Initial Offering Memorandum (the
"Placement Agents") will be selected by the Initial Purchaser; provided that
each Placement Agent must be reasonably satisfactory to the Company.
(c) Placement Agent Agreement. Subject to Section 8, the Company
shall enter into a placement agent agreement in customary form, containing
customary issuer indemnification provisions, with the Placement Agents and shall
take all such other action, if any, as the Initial Purchaser shall reasonably
request in order to facilitate the disposition of the Initial Securities
pursuant to the Initial Offering Memorandum.
(d) Cooperation of the Company. The Company shall provide full
cooperation to the Initial Purchaser, the Placement Agents and any other agents
of the Initial Purchaser or the Placement Agents, in any offering pursuant to
the Initial Offering Memorandum, including by making available upon reasonable
advance notice the officers of the Company from time to time to attend and make
presentations and answer questions regarding the business and prospects of the
Company at a meeting or meetings of prospective investors provided such
availability does not unreasonably interfere with the Company's business.
2. EXCHANGE OFFER.
(a) Exchange Offer Registration Statement. Unless the Company is
prohibited by applicable law or by applicable interpretations thereof by the
staff of the Securities and Exchange Commission (the "Commission"), the Company
shall prepare and, not later than the Required Filing Date, file with the
Commission a registration statement (the "Exchange Offer Registration
Statement") on an appropriate form under the Securities Act, with respect to a
proposed offer (the "Registered Exchange Offer"), to each Holder of Initial
Securities that is not prohibited by any applicable law or any policy of the
Commission from participating in the Registered Exchange Offer, to issue and
deliver to such Holder, in exchange for its respective Initial Securities, a
like aggregate principal amount of the Company's 12% Senior Debentures due 2011
(the "Exchange Debentures") identical in all material respects to the Initial
Securities (except for the transfer restrictions relating to the Initial
Securities) that would be registered under the Securities Act (such Exchange
Debentures and (as the context may require) any Additional Securities issued in
respect thereof, the "Exchange Securities"). The Company shall use its best
efforts to cause such Exchange Offer Registration Statement to become effective
under the Securities Act within forty-five (45) days after (or if the 45th day
is not a business day, the first business day thereafter) the Required Filing
Date and shall keep such Exchange Offer Registration Statement effective for not
less than thirty (30) days (or longer, if required by applicable law) after the
date that notice of the Registered Exchange Offer is mailed to the Holders (such
period being called the "Exchange Offer Registration Period"). Notwithstanding
anything herein to the contrary, the
2
<PAGE> 3
Company shall not, without the Initial Purchaser's written consent, file the
Exchange Offer Registration Statement prior to the Required Filing Date if the
offering and sale of the Initial Securities pursuant to the Initial Offering
Memorandum has not been consummated on or prior to such date.
(b) Commencement and Duration of Exchange Offer Registration Period.
Following the declaration of the effectiveness of the Exchange Offer
Registration Statement, the Company shall promptly commence the Registered
Exchange Offer, it being the objective of such Registered Exchange Offer to
enable each Holder of Initial Securities electing to exchange such Initial
Securities for Exchange Securities (assuming that such Holder is not the Initial
Purchaser or an Affiliate thereof or an Affiliate of the Company, acquires the
Exchange Securities in the ordinary course of such Holder's business, has no
arrangements or understandings with any person to participate in the
distribution of the Exchange Securities and is not prohibited by any law or
policy of the Commission from participating in the Registered Exchange Offer) to
trade such Exchange Securities from and after their receipt without any
limitations or restrictions under the Securities Act and without material
restrictions under the securities laws of the states of the United States. The
Company shall be entitled to close the Registered Exchange Offer on the 30th day
after commencement thereof provided that the Company has accepted all of the
Initial Securities theretofore validly tendered in accordance with the terms of
the Registered Exchange Offer.
(c) Certain Prospectus Delivery Requirements. The Company
acknowledges that, pursuant to current interpretations by the Commission's staff
of Section 5 of the Securities Act, in the absence of an applicable exemption
therefrom, (i) if a Participating Dealer elects to sell Exchange Securities
acquired in exchange for Initial Securities, it is required to deliver a
prospectus, which prospectus shall contain the information set forth (x) in
Annex A hereto on the cover of such prospectus, (y) in Annex B hereto in the
"Exchange Offer Procedures" and the "Purpose of the Exchange Offer" sections of
such prospectus and (z) in Annex C hereto in the "Plan of Distribution" section
of such prospectus, in connection with such sale and (ii) if the Initial
Purchaser elects to sell Exchange Securities acquired in exchange for Initial
Securities, it is required to deliver a prospectus, which prospectus shall
contain the information required by Items 507 or 508 of Regulation S-K under the
Securities Act, as applicable, in connection with such sale, which information
the Initial Purchaser agrees to provide in a timely manner.
(d) Effectiveness of Exchange Offer Registration Statement. The
Company shall use its best efforts to keep the Exchange Offer Registration
Statement effective and to amend and supplement the prospectus contained
therein, in order to permit such prospectus to be lawfully delivered by all
persons subject to the prospectus delivery requirements of the Securities Act
for such period of time as such persons must comply with such requirements in
order to resell the Exchange Securities; provided, however, that (i) in the case
where such prospectus and any amendment or supplement thereto must be delivered
by a Participating Dealer or the Initial Purchaser, such period shall be the
lesser of ninety (90) days and the date on which all Participating Dealers and
the Initial Purchaser have sold all Exchange Securities held by them (unless
such period is extended pursuant to Section 7(l) below) and (ii) the Company
shall make such prospectus and any amendment or supplement thereto, available to
any broker-dealer for
3
<PAGE> 4
use in connection with any resale of any Exchange Securities for a period of not
less than ninety (90) days after the consummation of the Registered Exchange
Offer.
(e) Private Exchange. If, at the end of the Exchange Offer
Registration Period, the Initial Purchaser holds any Initial Securities, the
Company, simultaneously with the delivery of the Exchange Securities pursuant to
the Registered Exchange Offer, shall issue and deliver to the Initial Purchaser
upon the written request of the Initial Purchaser, in exchange (the "Private
Exchange") for such Initial Securities, a like principal amount of Exchange
Debentures identical in all material respects (including the existence of
restrictions on transfer under the Securities Act and the securities laws of the
several states of the United States) to the Initial Securities (such Exchange
Debentures and (as the context may require) any Additional Securities issued in
respect thereof, are referred to herein as "Private Exchange Securities;" the
Initial Securities, the Exchange Securities and the Private Exchange Securities
are herein collectively called the "Securities").
(f) Registered Exchange Offer Procedures. In connection with the
Registered Exchange Offer, the Company shall:
(i) mail to each Holder a copy of the final prospectus
forming part of the Exchange Offer Registration Statement, together with an
appropriate letter of transmittal and related documents;
(ii) keep the Registered Exchange Offer open for not less
than thirty (30) days (or longer, if required by applicable law) after the date
notice thereof is mailed to the Holders;
(iii) utilize the services of a depositary for the Registered
Exchange Offer with an address in the Borough of Manhattan, The City of New
York;
(iv) permit Holders to withdraw tendered Initial Securities
at any time prior to the close of business, New York time, on the last business
day on which the Registered Exchange Offer shall remain open; and
(v) otherwise comply with all applicable laws.
(g) Exchange of Securities. As soon as practicable after the close
of the Registered Exchange Offer or Private Exchange, as the case may be, the
Company shall:
(i) accept for exchange all the Initial Securities validly
tendered and not withdrawn pursuant to the Registered Exchange Offer or the
Private Exchange, as the case may be;
(ii) deliver to the Trustee under the Indenture (the
"Trustee") for cancellation all Initial Securities so accepted for exchange; and
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(iii) cause the Trustee to authenticate and deliver promptly
Exchange Securities or Private Exchange Securities, as the case may be, equal in
principal amount to the Initial Securities of any Holder validly tendered.
(h) Cancellation of Initial Securities. If a Registered Exchange
Offer or a Private Exchange is to be consummated, upon delivery of the Initial
Securities by Holders to the Company (or to such other Person as directed by the
Company) in exchange for the Exchange Securities or the Private Exchange
Securities, as the case may be, the Company shall mark, or cause to be marked,
on the Initial Securities so exchanged that such Initial Securities are being
canceled in exchange for the Exchange Securities or the Private Exchange
Securities, as the case may be; in no event shall the Initial Securities be
marked as redeemed or otherwise satisfied.
(i) Interest. Interest, including Special Interest, if any, on each
Exchange Security or Private Exchange Security issued pursuant to the Registered
Exchange Offer or Private Exchange will accrue from the last interest payment
date on which interest was paid on the Initial Security surrendered in exchange
therefor or, if no interest has been paid on such Initial Security, from the
Issue Date.
(j) Representations of Exchanging Holders. Each Holder tendering
Initial Securities in the Registered Exchange Offer shall, as a condition of
receiving Exchange Securities, be required to represent to the Company that at
the time of the consummation of the Registered Exchange Offer (i) any Exchange
Securities received by such Holder will be acquired in the ordinary course of
business, (ii) such Holder will have no arrangements or understanding with any
person to participate in the distribution of the Initial Securities or the
Exchange Securities within the meaning of the Securities Act, (iii) such Holder
is not an "affiliate," as defined in Rule 405 promulgated under the Securities
Act, of the Company or if it is an affiliate, such Holder will comply with the
registration and prospectus delivery requirements of the Securities Act to the
extent applicable, (iv) if such Holder is not a broker-dealer, that it is not
engaged in, and does not intend to engage in, the distribution of the Exchange
Securities, (v) if such Holder is a broker-dealer, that it will receive Exchange
Securities for its own account in exchange for Initial Securities that were
acquired as a result of market-making activities or other trading activities and
that it will deliver a prospectus in connection with any resale of such Exchange
Securities and (vi) that such Holder is not the Initial Purchaser or an
Affiliate of the Initial Purchaser.
3. SHELF REGISTRATION. If, (i) because of any change in applicable
law or in applicable interpretations thereof by the staff of the Commission, the
Company is not permitted to effect the Registered Exchange Offer, as
contemplated by Section 2 hereof, (ii) the Registered Exchange Offer is not
consummated within seventy-five (75) days after the Required Filing Date, (iii)
the Initial Purchaser or any of its Affiliates Beneficially Owns any Securities
immediately after the closing of the sale of Initial Securities pursuant to the
Initial Offering Memorandum or (iv) any other Holder of Initial Securities
(other than a Participating Dealer) is not eligible to participate in the
Registered Exchange Offer or, in the case of any Holder (other than a
Participating Dealer) that participates in the Registered Exchange Offer, such
Holder
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<PAGE> 6
receives Securities that are Transfer Restricted Securities on the date of the
exchange, the provisions of this Section 3 shall be applicable:
(a) Shelf Registration Statement. The Company shall prepare and, not
later than the Required Filing Date, file with the Commission and thereafter
shall use its best efforts to cause to be declared effective under the
Securities Act not later than the end of the Exchange Offer Registration Period
or, if the Registered Exchange Offer is not consummated, seventy-five (75) days
after the Required Filing Date a registration statement or statements (each, a
"Shelf Registration Statement") on an appropriate form under the Securities Act
relating to the offer and sale of Transfer Restricted Securities by such Holders
thereof from time to time in accordance with the methods of distribution
specified by the Initial Purchaser or such Holders and permitted by Rule 415
promulgated under the Securities Act, as set forth in the Shelf Registration
Statement (hereinafter, the "Shelf Registration"); provided, however, that such
Holder (other than the Initial Purchaser) shall be entitled to have the
Securities held by it registered under such Shelf Registration Statement only if
(i) such Holder agrees in writing to be bound by all the provisions of this
Agreement applicable to such Holder, (ii) agrees to sell such Securities on the
basis reasonably provided in the Shelf Registration Statement and (iii) promptly
upon the request of the Company furnishes to the Company in writing all
information regarding such Holder as is required to be included in the Shelf
Registration Statement pursuant to applicable law and completes and returns all
other questionnaires, powers of attorney, indemnities, underwriting agreements,
lock-up letters and other documents reasonably requested under the terms of such
underwriting arrangements.
(b) Notice to Holders. Not less than twenty (20) days prior to the
Shelf Registration Required Filing Date, the Company shall notify each such
Holder of Transfer Restricted Securities of its intention to file the Shelf
Registration Statement and shall request from each Holder wishing to register
its Transfer Restricted Securities under the Shelf Registration Statement such
information regarding such Holder as is required to be included in the Shelf
Registration Statement pursuant to applicable law.
(c) Effectiveness of Shelf Registration Statement. Subject to
Section 3(d), the Company shall use its best efforts to cause the Shelf
Registration Statement to become effective not later than seventy-five (75) days
after the Required Filing Date and to keep the Shelf Registration Statement
continuously effective and complete in order to permit the prospectus included
therein to be lawfully delivered by the Holders of the Securities registered
thereunder, until the later to occur of (i) the date upon which all the
Securities registered under the Shelf Registration Statement held by persons
other than the Initial Purchaser (A) have been sold pursuant thereto or (B) are
eligible for sale under Rule 144(k) under the Securities Act and (ii) the date
upon which neither the Initial Purchaser nor any of its Affiliates Beneficially
Owns any Securities. The Company shall be deemed not to have used its best
efforts to keep the Shelf Registration Statement effective during the requisite
period if it voluntarily takes any action for which the Company does not have a
bona fide business purpose that would result in Holders of Securities covered
thereby not being able to offer and sell such Securities during that period,
unless such action is required by applicable law or is otherwise permitted to be
taken pursuant to this Agreement.
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<PAGE> 7
(d) Shelf Blackouts. The Company shall have the right (each a "Shelf
Blackout Right") to delay the effectiveness of the Shelf Registration Statement,
to suspend the use of the preliminary or final Prospectus forming a part thereof
either before or after the effectiveness of the Shelf Registration Statement,
and to restrict Holders of Securities registered under the Shelf Registration
Statement from making sales of Securities in reliance on such Shelf Registration
Statement by written notice to such Holders, in each such case, if the Chairman
of the Board, the President or the Chief Financial Officer of the Company
determines, in good faith, that offers or sales of the Securities registered
under the Shelf Registration Statement would require disclosure that would
either (y) materially interfere with an acquisition, divestiture, financing or
other transaction that is material to the Company and its subsidiaries, taken as
a whole, and that is pending or contemplated by the Company to occur or be
announced publicly or (z) require premature disclosure of material non-public
information not otherwise required to be disclosed that the Company has a bona
fide business purpose for preserving as confidential. If the Company exercises a
Shelf Blackout Right pursuant to this Section 3(d), the Company shall promptly
advise the Holders of Securities registered, or to be registered, under the
Shelf Registration Statement in writing of the exercise of such Shelf Blackout
Right and when such restrictions are no longer applicable.
(e) Post-Effective Shelf Holders. The Company agrees to take the
necessary steps, including, without limitation, filing a prospectus supplement
to the prospectus included in the Shelf Registration Statement pursuant to Rule
424(b)(3) promulgated under the Securities Act, to permit each Holder that
acquires Transfer Restricted Securities following the effectiveness of the Shelf
Registration Statement to sell such Securities pursuant to the Shelf
Registration Statement; provided that such Holder provides all information
regarding such Holder as is required to be included in the Shelf Registration
Statement pursuant to applicable law.
4. DEMAND REGISTRATION RIGHTS. For so long as the Initial Purchaser
or any of its Affiliates Beneficially Owns any Securities, and whether or not
the Company has complied with the provisions of Sections 1, 2 and 3, the
provisions of this Section 4 shall be applicable:
(a) Resale Registration. Upon the written request from time to time
of the Initial Purchaser, the Company shall, as promptly as practicable (but,
subject to Section 4(b), in no event more than forty-five (45) days after
requested pursuant to this Section 4), file with the Commission and thereafter
shall use its best efforts to cause to be declared effective as soon as possible
thereafter a registration statement or statements (each, a "Resale Registration
Statement" and, together with the Exchange Offer Registration Statement and the
Shelf Registration Statement, the "Registration Statements") on an appropriate
form under the Securities Act (including, to the extent available under
applicable law, by way of an amendment to the Shelf Registration Statement)
relating to an underwritten or other offer and sale of the Transfer Restricted
Securities Beneficially Owned by the Initial Purchaser or any of its Affiliates
in accordance with the methods of distribution set forth in the Resale
Registration Statement (hereinafter, the "Resale Registration"). Notwithstanding
anything herein to the contrary, the Company shall not be obligated to file a
Resale Registration Statement (or amend the Shelf Registration Statement, if
appropriate) pursuant to this Section 4 (i) earlier than the Required Filing
Date, or (ii) more than four (4) times, or (iii) unless the aggregate principal
amount of
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<PAGE> 8
Securities to be registered under a Resale Registration Statement is equal to or
greater than Seventy-Five Million Dollars ($75,000,000), or (iv) earlier than
one hundred eighty (180) days after the effectiveness of the last effective
Resale Registration Statement if a Resale Registration Statement shall have
theretofore become effective.
(b) Registration Delays. Subject to the last sentence of this
Section 4(b), at any time prior to the date on which a Resale Registration
Statement becomes effective, the Company shall have the right to delay the
filing of, and delay the effectiveness of, a Resale Registration Statement, if
the Chairman of the Board, the President or the Chief Financial Officer of the
Company determines, in good faith, that the filing of the Resale Registration
Statement or the making of offers or sales of the Securities registered under
the Resale Registration Statement would require disclosure that would either (y)
materially interfere with an acquisition, divestiture, financing or other
transaction that is material to the Company and its subsidiaries, taken as a
whole, and that is pending or contemplated by the Company to occur or be
announced publicly or (z) require premature disclosure of material non-public
information not otherwise required to be disclosed that the Company has a bona
fide business purpose for preserving as confidential (a "Registration Delay").
The Company may not exercise a Registration Delay unless notice has previously
been or is concurrent with such exercise provided to the Initial Purchaser that
the Company has restricted, pursuant to Section 3(d), sales of Securities
registered under the Shelf Registration Statement. If the Company exercises any
Registration Delay, the Company will give the Initial Purchaser prompt written
notice as soon as the conditions that gave rise to such Registration Delay are
no longer in effect. If the Company exercises a Registration Delay, the Company
shall, as applicable, file the requested Resale Registration Statement and
secure the effectiveness thereof, in each case as soon as practicable after the
conditions that gave rise to such Registration Delay are no longer in effect. As
provided in Section 6 hereof, the Initial Purchaser and its Affiliates shall be
entitled to receive Liquidated Damages with respect to the Transfer Restricted
Securities that are to be registered under the Resale Registration Statement if,
notwithstanding such Registration Delay, such Resale Registration Statement (or
the relevant amendment to the Shelf Registration Statement) shall not have been
filed not later than ninety (90) days after a request has been made by the
Initial Purchaser under Section 4(a) for the filing of such Resale Registration
Statement or declared effective not later than one hundred twenty (120) days
after a request has been made by the Initial Purchaser under Section 4(a) for
the filing of such Resale Registration Statement.
(c) Effectiveness of Resale Registration Statement. The Company
shall use its best efforts to keep the Resale Registration Statement effective
and complete in order to permit the prospectus included therein to be lawfully
delivered by the Managing Underwriters thereunder for so long as dealers are
required to deliver a prospectus under Section 4(3) of the Securities Act and
any rule promulgated thereunder. The Company shall be deemed not to have used
its best efforts to keep the Resale Registration Statement effective during the
requisite period if it voluntarily takes any action for which the Company does
not have a bona fide business purpose that would result in the Initial Purchaser
not being able to offer and sell the Securities registered thereunder during
that period or would result in any dealer not being able to satisfy statutory
prospectus delivery requirements, unless such action is required by applicable
law or is otherwise permitted to be taken pursuant to this Agreement.
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<PAGE> 9
(d) Selection of Managing Underwriters. The investment banker or
investment bankers and manager or managers that will underwrite, or act as
placement agents with respect to, any offering pursuant to a Resale Registration
(the "Managing Underwriters") will be selected by the Initial Purchaser;
provided that Managing Underwriters must be reasonably satisfactory to the
Company.
(e) Underwriting Agreement. Subject to Section 8, the Company shall
enter into an underwriting agreement in customary form, containing customary
issuer indemnification provisions, with the Managing Underwriters with respect
to each Resale Registration and shall take all such other action, if any, as the
Initial Purchaser shall reasonably request in order to facilitate the
disposition of the Securities pursuant to the Resale Registration.
(f) Cooperation of the Company. The Company shall provide full
cooperation to the Initial Purchaser and the Managing Underwriters and any other
agents of the Initial Purchaser or the Managing Underwriters, in any offering
pursuant to a Resale Registration Statement, including by making available upon
reasonable advance notice the officers of the Company from time to time to
attend and make presentations and answer questions regarding the business and
prospects of the Company at a meeting or meetings of prospective investors
provided such availability does not unreasonably interfere with the Company's
business.
5. TRIGGERING EVENTS; REMEDIES.
(a) Triggering Events. Any of the following events shall constitute
a "Triggering Event" for purposes of this Agreement:
(i) If, by the Required Filing Date, the Exchange Offer
Registration Statement is required to have been filed pursuant to Section 2(a)
but has not been filed with the Commission;
(ii) If the Exchange Offer Registration Statement is not
required to be filed pursuant to Section 2(a) and the Shelf Registration
Statement is required to be filed pursuant to Section 3 but shall not have been
filed with the Commission by the Required Filing Date;
(iii) If, by forty-five (45) days after the Required Filing
Date, the Exchange Offer Registration Statement is required to have been filed
pursuant to Section 2(a) but has not been declared effective by the Commission;
(iv) If the Exchange Offer Registration Statement is not
required to be filed pursuant to Section 2(a) and the Shelf Registration
Statement is required to be and has been filed pursuant to Section 3 but shall
not have been declared effective by the Commission by the date that is
forty-five (45) days after the Required Filing Date;
(v) If, by seventy-five (75) days after the Required Filing
Date, the Exchange Offer Registration Statement is required to have been filed
pursuant to Section 2(a) but the Registered Exchange Offer relating to the
Securities has not been commenced or, if commenced, all Initial Securities
validly tendered pursuant thereto have not been accepted for exchange; or
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<PAGE> 10
(vi) If the Exchange Offer Registration Statement is not
required to be filed pursuant to Section 2(a) and the Shelf Registration
Statement is required to be and has been filed pursuant to Section 3 but shall
fail, whether or not due to the exercise of a Shelf Blackout Right, to be
continuously effective and complete (except for one period not to exceed thirty
(30) consecutive days in any twelve month period) in order to permit the
prospectus included therein to be lawfully delivered by the Holders of the
Securities registered thereunder (other than the Initial Purchaser and its
Affiliates), until the later to occur of the date upon which all the Securities
registered under the Shelf Registration Statement held by persons other than the
Initial Purchaser (A) have been sold pursuant thereto or (B) are eligible for
sale under Rule 144(k) under the Securities Act.
(b) Special Interest. If any Triggering Event has occurred, interest
will accrue on the Securities (in addition to the twelve percent (12%) stated
interest rate for the Securities) (the "Step-Up") at a rate of one-half of one
percent (0.5%) per annum (the "Special Interest") of the principal amount of the
Securities for the period from the occurrence of the Triggering Event until such
time (the "Step-Down Date") as no Triggering Event is in effect. For each ninety
(90) day period that the Triggering Event continues, the per annum rate of such
Special Interest shall increase (each such increase, an "Additional Step-Up") by
an additional one-half of one percent (0.5%) per annum provided, that the sum of
the Step-Up and all Additional Step-Ups shall in no event exceed two percent
(2.0%) per annum in the aggregate. On the Step-Down Date, the interest rate will
be restored to its twelve percent (12%) stated interest rate. Notwithstanding
the foregoing, the Initial Purchaser, on behalf of itself and its Affiliates,
hereby waives any right it may otherwise have to receive Special Interest upon
the occurrence and during the continuance of a Triggering Event described in
Section 5(a)(vi).
(c) Payment of Special Interest. Any Special Interest due pursuant
to this Section 5 shall be payable in arrears in cash or in kind to the extent
interest is permitted to be paid in kind pursuant to Section 301 of the
Indenture, on each scheduled interest payment date for the Securities,
commencing with the first scheduled interest payment date following the
occurrence of the applicable Triggering Event.
6. LIQUIDATED DAMAGES.
(a) Special Triggering Events. Any of the following shall constitute
a "Special Triggering Event" for purposes of this Agreement:
(i) If, by the Required Delivery Date, the Company has not
prepared and delivered to the Initial Purchaser the Initial Offering Memorandum
satisfying all of the terms and conditions of Section 1(a);
(ii) If the Exchange Offer Registration Statement is required
to be and has been filed pursuant to Section 2(a) and the Shelf Registration
Statement relating to the Securities is required to be filed pursuant to Section
3 but has not been filed with the Commission by the Required Filing Date;
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(iii) If the Exchange Offer Registration Statement is required
to be and has been filed pursuant to Section 2(a) and, whether or not due to the
exercise of a Shelf Blackout Right, the Shelf Registration Statement is required
to be and has been filed pursuant to Section 3 but has not been declared
effective by the Commission not later than seventy-five (75) days after the
Required Filing Date;
(iv) If the Exchange Offer Registration Statement is required
to be and has been filed pursuant to Section 2(a) and the Shelf Registration
Statement is required to be and has been filed pursuant to Section 3 but shall
fail, whether or not due to the exercise of a Shelf Blackout Right, to be
continuously effective and complete (except for one period not to exceed thirty
(30) consecutive days in any twelve month period) in order to permit the
prospectus included therein to be lawfully delivered by the Holders of the
Securities registered thereunder (other than the Initial Purchaser and its
Affiliates and, provided the Registered Exchange Offer has been consummated, any
Holders that were eligible to participate in the Registered Exchange Offer),
until the later to occur of the date upon which all the Securities registered
under the Shelf Registration Statement held by persons other than the Initial
Purchaser (A) have been sold pursuant thereto or (B) are eligible for sale under
Rule 144(k) under the Securities Act;
(v) If, by forty-five (45) days (or, if the Company
exercises a Registration Delay, by ninety (90) days) after a request has been
made by the Initial Purchaser pursuant to Section 4(a) for the filing of a
Resale Registration Statement, a Resale Registration Statement that is
responsive to such request has not been filed with the Commission;
(vi) If, by ninety (90) days (or, if the Company exercises a
Registration Delay, by one hundred twenty (120) days) after a request has been
made by the Initial Purchaser under Section 4(a) for the filing of a Resale
Registration Statement, a Resale Registration Statement that is responsive to
such request has not been declared effective by the Commission;
(vii) If, (A) the Company shall have provided to the Initial
Purchaser an Offering Memorandum, (B) during the period that the Initial
Purchaser is engaged in selling efforts thereunder changes in such Offering
Memorandum are necessary in order that such Offering Memorandum neither contains
an untrue statement of a material fact nor omits to state a material fact
required to be stated therein or necessary to make the statements therein (in
light of the circumstances under which they were made) not misleading and (C)
the Company shall not have provided to the Initial Purchaser for its use an
amendment to or supplement of such Offering Memorandum that neither contains an
untrue statement of a material fact nor omits to state a material fact required
to be stated therein or necessary to make the statements therein (in light of
the circumstances under which they were made) not misleading; or
(viii) if, at any time after the Resale Registration Statement
relating to the Securities is declared effective (A) the Resale Registration
Statement thereafter ceases to be effective; or (B) the Resale Registration
Statement or the related prospectus ceases to be usable in connection with
resales of Transfer Restricted Securities, in any such case during the periods
specified herein because either (1) an event occurs as a result of which the
related prospectus forming part of the Resale Registration Statement would
include any untrue statement of a
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material fact or omit to state any material fact necessary to make the
statements therein in light of the circumstances under which they were made not
misleading or (2) it shall be necessary to amend such Registration Statement or
supplement the related prospectus in order to comply with the Securities Act or
the Exchange Act or the respective rules promulgated thereunder, in either case
where such post-effective amendment is not yet effective and needs to be
declared effective to permit the Initial Purchaser to use the related
prospectus.
(b) Liquidated Damages. Upon the occurrence of a Special Triggering
Event and for so long as such Special Triggering Event continues,
(i) if such Special Triggering Event is described in clauses
(i) or (vii) of Section 6(a), the Initial Purchaser shall be entitled to demand
that the Company prepare a confidential offering memorandum (a "Triggered
Offering Memorandum" and, together with the Initial Offering Memorandum,
"Offering Memoranda") with respect to any Initial Securities held by the Initial
Purchaser, pursuant to which the Initial Purchaser shall offer to sell such
Initial Securities in transactions intended to qualify for the exemption from
registration under the Securities Act afforded by Rule 144A promulgated
thereunder, which Triggered Offering Memorandum shall be subject to all of the
provisions of the last sentence of Section 1(a) and the provisions of Sections
1(b), (c) and (d);
(ii) if such Special Triggering Event is described in any
clause of Section 6(a) other than clause (iv), the Company shall pay to the
Initial Purchaser, in arrears on each interest payment date with respect to the
Securities Beneficially Owned by the Initial Purchaser or any of its Affiliates,
an amount in cash or in kind to the extent interest may be paid in kind pursuant
to Section 301 of the Indenture as liquidated damages equal to the amount of
Special Interest that would have been accrued with respect to any Securities
Beneficially Owned by the Initial Purchaser or any of its Affiliates had such
Special Triggering Event been a Triggering Event; and
(iii) if such Special Triggering Event is described in clause
(ii), (iii) or (iv) of Section 6(a), the Company shall pay to each Participating
Dealer and to each Holder of Securities registered under the Shelf Registration
Statement (other than the Initial Purchaser and its Affiliates and, provided the
Registered Exchange Offer has been consummated, any Holders that were eligible
to participate in the Registered Exchange Offer), in arrears on each interest
payment date, with respect to any Transfer Restricted Securities held by such
Participating Dealer or such Holder, an amount in cash or in kind to the extent
interest is payable in kind pursuant to Section 301 of the Indenture as
liquidated damages equal to the amount of Special Interest that would have
accrued with respect to any such Transfer Restricted Securities held by such
Participating Dealer or such Holder had such Special Triggering Event been a
Triggering Event.
(c) Special Shelf Trigger; Special Liquidated Damages. If the
Exchange Offer Registration Statement is required to be and has been filed
pursuant to Section 2(a) and the Shelf Registration Statement is required to be
and has been filed pursuant to Section 3 but shall fail, whether or not due to
the exercise of a Shelf Blackout Right, to be effective and complete and
available for sales of Securities by the Initial Purchaser and its Affiliates
pursuant thereto (A) for
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a total of not less than forty-five (45) days or for a period of not less than
thirty (30) consecutive days during each calendar quarter or (B) for a period of
not less than sixty (60) consecutive days at least once during each calendar
year (in any case, a "Special Shelf Trigger"), the Company shall pay to the
Initial Purchaser:
(i) Not later than fifteen (15) days after the end of each
calendar quarter ending after the effectiveness of the Shelf Registration
Statement, an amount in cash or in kind to the extent interest may be paid in
kind pursuant to Section 301 of the Indenture as special liquidated damages
equal to the product of:
(A) the Quarterly Rate (expressed as a decimal)
multiplied by
(B) the average daily aggregate principal amount of
Securities Beneficially Owned by the Initial Purchaser or any of its Affiliates
during such calendar quarter multiplied by
(C) the greater of (x) a fraction, (I) the numerator
of which is the excess of the Proration Factor multiplied by thirty (30) over
the number of consecutive days during such calendar quarter that the Shelf
Registration Statement was effective and (II) the denominator of which is the
Proration Factor multiplied by thirty (30) or (y) a fraction, (I) the numerator
of which is the excess of the Proration Factor multiplied by forty-five (45)
over the total number of days during such calendar quarter that the Shelf
Registration Statement was effective and (II) the denominator of which is the
Proration Factor multiplied by forty-five (45).
With respect to the calendar quarter in which the Shelf Registration Statement
initially becomes effective, special liquidated damages shall be payable to the
Initial Purchaser pursuant to this Section 6(c)(i) only if the Shelf
Registration Statement shall have initially become effective at least thirty
(30) days prior to the end of such calendar quarter, in which event the
Proration Factor for purposes of this Section 6(c)(i) shall be equal to a
fraction, the numerator of which is the number of days in such calendar quarter
including and after the date on which the Shelf Registration Statement initially
becomes effective and the denominator of which is the total number of days in
such calendar quarter. For any calendar quarter other than the calendar quarter
in which the Shelf Registration Statement initially becomes effective, the
Proration Factor shall be equal to one (1). For purposes of this Section
6(c)(i), "Quarterly Rate" shall mean the Applicable Percentage multiplied by a
fraction, the numerator of which is the number of days in such calendar quarter
and the denominator of which is three hundred sixty-five (365) and "Applicable
Percentage" shall mean, with respect to any calendar quarter, one-half of one
percent (0.5%) multiplied by the number of consecutive calendar quarters,
including the calendar quarter for which such calculation is being made, with
respect to which any special liquidated damages are or were payable to the
Initial Purchaser pursuant to Section 6(c)(i); provided, however, that the
Applicable Percentage shall not exceed two percent (2.0%).
(ii) Not later than fifteen (15) days after the end of each
calendar year ending after the effectiveness of the Shelf Registration
Statement, an amount in cash or in kind to the extent interest may be paid in
kind pursuant to Section 301 of the Indenture as special liquidated damages
equal to the product of:
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(A) the Applicable Percentage multiplied by
(B) the average daily aggregate principal amount of
Securities Beneficially Owned by the Initial Purchaser or any of its Affiliates
during such calendar year multiplied by
(C) a fraction, (I) the numerator of which is the
excess of the Proration Factor multiplied by sixty (60) over the greatest number
of consecutive days during such calendar year that the Shelf Registration
Statement was effective and (II) the denominator of which is the Proration
Factor multiplied by sixty (60).
With respect to the calendar year in which the Shelf Registration Statement
initially becomes effective, special liquidated damages shall be payable to the
Initial Purchaser pursuant to this Section 6(c)(ii) only if the Shelf
Registration Statement shall have initially become effective at least sixty (60)
days prior to the end of such calendar year, in which event the Proration Factor
for purposes of this Section 6(c)(ii) shall be equal to a fraction, the
numerator of which is the number of days in such calendar year including and
after the date on which the Shelf Registration Statement initially becomes
effective and the denominator of which is the total number of days in such
calendar year. For any calendar year other than the calendar year in which the
Shelf Registration Statement initially becomes effective, the Proration Factor
shall be equal to one (1). For purposes of Section 6(c)(ii), "Applicable
Percentage" shall mean, with respect to any calendar year, the greater of
one-half of one percent (0.5%) or the Applicable Percentage in effect under
Section 6(c)(i) for the last quarter in such calendar year.
Notwithstanding anything in this Section 6(c) to the contrary, the amount paid
by the Company to the Initial Purchaser pursuant to this Section 6(c) with
respect to any calendar year shall in no event exceed the product of the
Proration Factor multiplied by two percent (2.0%) multiplied by the average
daily aggregate principal amount of Securities Beneficially Owned by the Initial
Purchaser or any of its Affiliates during such calendar year.
(d) Multiple Events.
(i) The parties intend that the definitions of Triggering
Event and Special Triggering Event shall be mutually exclusive. If,
notwithstanding such intention, a Triggering Event and a Special Triggering
Event are deemed to be in effect with respect to the same day, the Special
Interest or Special Damages payable by the Company with respect to each such day
shall be the greater of the amount payable with respect to such day under
Section 5(b) or 6(b) and only such greater amount shall be so payable.
(ii) Notwithstanding Section 6(d)(i), if a Special Shelf
Trigger shall have occurred with respect to any calendar quarter, then the
amount of Special Interest, Special Damages or special liquidated damages, as
the case may be, payable by the Company to the Initial Purchaser with respect to
such calendar quarter shall be the greater of the amount payable to the Initial
Purchaser pursuant to Section 6(c) or the amount payable to the Initial
Purchaser under Section 5(b) or 6(b), as the case may be, and only such greater
amount shall be so payable.
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7. CERTAIN PROCEDURES. In connection with any Shelf Registration
contemplated by Section 3 hereof, any Resale Registration Statement contemplated
by Section 4 hereof, any Registered Exchange Offer contemplated by Section 2
hereof and any Offering Memorandum contemplated by Section 1 or 6(b)(i) hereof,
the provisions of this Section 7 shall be applicable:
(a) Compliance with Applicable Rules. Notwithstanding any other
provisions of this Agreement to the contrary, the Company shall cause (i) any
Registration Statement filed pursuant to this Agreement and the related
prospectus and any amendment or supplement thereto, as of the effective date of
such Registration Statement, amendment or supplement, to comply as to form in
all material respects with the applicable requirements of the Securities Act and
the rules and regulations of the Commission and (ii) any Registration Statement
filed pursuant to this Agreement and the related prospectus and any amendment or
supplement thereto, and any Offering Memorandum, as of the effective date of
such Registration Statement, amendment or supplement or as of the date of such
Offering Memorandum, not to contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary in
order to make the statements therein, in light of the circumstances under which
they were made, not misleading.
(b) Preparation of Registration Statements and Offering Memoranda.
The Company shall:
(i) furnish to the Initial Purchaser, prior to the filing
thereof with the Commission, a copy of each Registration Statement and each
amendment thereof and each supplement, if any, to the prospectus included
therein and, in the event that such Registration Statement is a Resale
Registration Statement or the Initial Purchaser (with respect to any Transfer
Restricted Securities) is participating in the Registered Exchange Offer or a
Shelf Registration, reflect in each such document, when so filed with the
Commission, such comments as the Initial Purchaser reasonably may propose;
provided, that, as to substance, the Initial Purchaser shall be entitled to
require changes in such Registration Statement only to the extent that such
changes are related to disclosure that the Initial Purchaser believes is
necessary to comply with applicable law including, without limitation, Rule
10b-5 promulgated under the Exchange Act;
(ii) furnish to the Initial Purchaser, prior to the
publication thereof, a copy of each Offering Memorandum and each amendment
thereof and reflect in each such document, when so published, such comments as
the Initial Purchaser reasonably may propose; provided that, as to substance,
the Initial Purchaser shall be entitled to require changes in such Offering
Memorandum only to the extent that such changes are related to disclosure that
the Initial Purchaser believes is necessary to comply with applicable law
including, without limitation, Rule 10b-5 promulgated under the Exchange Act;
(iii) include the information set forth in Annex A hereto on
the cover, in Annex B hereto in the "Exchange Offer Procedures" and the "Purpose
of the Exchange Offer" sections and in Annex C hereto in the "Plan of
Distribution" section of the prospectus forming a part of
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<PAGE> 16
the Exchange Offer Registration Statement and include the information set forth
in Annex D hereto in the Letter of Transmittal delivered pursuant to such
Registered Exchange Offer;
(iv) if requested by the Initial Purchaser, include the
information required by Items 507 or 508 of Regulation S-K under the Securities
Act, as applicable, in the prospectus forming a part of the Exchange Offer
Registration Statement;
(v) include within the prospectus contained in the Exchange
Offer Registration Statement a section entitled "Plan of Distribution,"
reasonably acceptable to the Initial Purchaser, which shall contain a summary
statement of the positions taken or policies made by the staff of the Commission
with respect to the potential "underwriter" status of any Participating Dealer,
whether such positions or policies have been publicly disseminated by the staff
of the Commission or such positions or policies, in the reasonable judgment of
the Company and the Initial Purchaser based upon advice of their respective
counsel (which may be in-house counsel), represent the prevailing views of the
staff of the Commission; and
(vi) in the case of a Shelf Registration or Resale
Registration, include the names of the Holders who propose to sell Securities
pursuant to the Shelf Registration Statement or the Resale Registration
Statement, as selling securityholders.
(c) Notices. The Company shall give prompt written notice to the
Initial Purchaser, the Holders of Restricted Transfer Securities and (in the
case of the Exchange Offer Registration Statement) any Participating Dealer from
whom the Company has received prior written notice that it will be a
Participating Dealer in the Registered Exchange Offer (which notice pursuant to
clauses (ii)-(v) hereof shall be accompanied by an instruction to suspend the
use of the prospectus until the requisite changes have been made):
(i) when a Registration Statement or any amendment thereto
has been filed with the Commission and when the Registration Statement or any
post-effective amendment thereto has become effective;
(ii) of any request by the Commission for amendments or
supplements to a Registration Statement or to the prospectus included therein or
for additional information;
(iii) of the issuance by the Commission of any stop order
suspending the effectiveness of any Registration Statement or the initiation of
any proceedings for that purpose;
(iv) of the receipt by the Company or its legal counsel of
any notification with respect to the suspension of the qualification of the
Securities for sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose; and
(v) of the happening of any event that requires the Company
to make changes in any Registration Statement or the related prospectus in order
that such Registration Statement or such prospectus does not contain an untrue
statement of a material fact nor omit to state a material fact required to be
stated therein or necessary to make the statements therein (in the case
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<PAGE> 17
of the prospectus, in light of the circumstances under which they were made) not
misleading, which written notice need not provide any detail as to the nature of
such event.
(d) Suspension Orders. The Company shall use its best efforts to
obtain the withdrawal at the earliest possible time of any order suspending the
effectiveness of a Registration Statement.
(e) Copies of Exchange Offer Registration Statement. The Company
shall deliver to each Participating Dealer, to the Initial Purchaser and to the
Placement Agents, and to any other Holder who so requests, without charge, at
least one copy of the Exchange Offer Registration Statement and any
post-effective amendment thereto, including financial statements and schedules
and, if the Initial Purchaser, any such Holder or any Placement Agent requests,
all exhibits thereto (including those, if any, incorporated by reference).
(f) Copies of Shelf Registration Statement and Resale Registration
Statements. The Company shall furnish to each Holder of Securities registered
pursuant to the Shelf Registration Statement or a Resale Registration Statement
and to the Managing Underwriters, if any, without charge, at least one copy of
the Shelf Registration Statement or the Resale Registration Statement, as the
case may be, and any post-effective amendment thereto, including financial
statements and schedules and, if any Holder or any Managing Underwriter so
requests in writing, all exhibits thereto (including those, if any, incorporated
by reference).
(g) Copies of Prospectus Included in Exchange Offer Registration
Statement. The Company shall deliver to the Initial Purchaser, any Participating
Dealer, the Placement Agents and such other persons as may be required to
deliver a prospectus following the Registered Exchange Offer, without charge, as
many copies of the final prospectus included in the Exchange Offer Registration
Statement and any amendment or supplement thereto as such persons may reasonably
request. The Company consents, subject to the provisions of this Agreement, to
the use of the prospectus or any amendment or supplement thereto by the Initial
Purchaser, if necessary, any Participating Dealer and such other persons
required to deliver a prospectus following the Registered Exchange Offer in
connection with the offering and sale of the Exchange Securities covered by the
prospectus, or any amendment or supplement thereto, included in such Exchange
Offer Registration Statement.
(h) Copies of Prospectuses Included in Shelf Registration Statement
and Resale Registration Statements. With respect to the Shelf Registration
Statement and any Resale Registration Statement, deliver to each Holder of
Securities registered pursuant thereto and to the Managing Underwriters, if any,
without charge, as many copies of the prospectus (including each preliminary
prospectus) included in such Registration Statement and any amendment or
supplement thereto as such Holder or Managing Underwriter may reasonably
request. The Company consents, subject to the provisions of this Agreement, to
the use of the prospectus (including each preliminary prospectus) or any
amendment or supplement thereto by each of the selling Holders of the Securities
registered pursuant to the Shelf Registration Statement or any Resale
Registration Statement and by any Managing Underwriters in connection with the
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<PAGE> 18
offering and sale of the Securities covered by the prospectus, or any amendment
or supplement thereto, included in such Registration Statement.
(i) Copies of Offering Memoranda. The Company shall deliver to the
Initial Purchaser and to the Placement Agents, without charge, as many copies of
each of the Offering Memoranda and any amendment or supplement thereto as the
Initial Purchaser or Placement Agents may reasonably request. The Company
consents, subject to the provisions of this Agreement, to the use of the
Offering Memoranda or any amendment or supplement thereto by the Initial
Purchaser and by any Placement Agent in connection with the offering and sale of
the Securities covered by each Offering Memorandum, or any amendment or
supplement thereto.
(j) Blue Sky Matters. Prior to any public offering of the Securities
pursuant to any Registration Statement or to a sale pursuant to an Offering
Memorandum, the Company shall register or qualify or cooperate with the Holders
of the Securities included therein and their respective counsel in connection
with the registration or qualification of the Securities for offer and sale
under the securities or "blue sky" laws of such states of the United States as
any Holder of the Securities reasonably requests in writing and do any and all
other acts or things necessary or advisable to enable the offer and sale in such
jurisdictions of such Securities; provided, however, that the Company shall not
be required to (i) qualify generally to do business in any jurisdiction where it
is not then so qualified or (ii) take any action which would subject it to
general service of process or to taxation in any jurisdiction where it is not
then so subject.
(k) Certificates Representing Securities. The Company shall
cooperate with the Holders of the Securities covered by any Registration
Statement or Offering Memorandum to facilitate the timely preparation and
delivery of certificates representing the Securities to be sold pursuant to any
Registration Statement or Offering Memorandum in such denominations and
registered in such names as such Holders may request a reasonable period of time
prior to sales of the Securities pursuant to such Registration Statement or
Offering Memorandum and, in the case of sales pursuant to a Registration
Statement, free of any restrictive legends.
(l) Post-Effective Amendments. Upon the occurrence of any event
contemplated by paragraphs (ii) through (v) of Section 7(c) above during the
period for which the Company is required to maintain an effective Registration
Statement, the Company shall promptly prepare and file a post-effective
amendment to the Registration Statement or a supplement to the related
prospectus and any other required document so that, as thereafter delivered to
Holders of the Initial Securities or purchasers of Securities, the prospectus
will not contain an 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 light of the circumstances under which they were made, not
misleading. If the Company notifies the Initial Purchaser, the Holders of the
Securities included in any Registration Statement and (to the extent applicable)
any known Participating Dealer in accordance with paragraphs (ii) through (v) of
Section 7(c) above to suspend the use of the prospectus until the requisite
changes to the prospectus have been made, then the Initial Purchaser, such
Holders of the Securities and any such Participating Dealers shall suspend use
of such prospectus, and the period of effectiveness of the Shelf Registration
Statement provided for in Section 3 above or the Exchange Offer Registration
Statement provided for in Section 2 above
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or the Resale Registration Statement provided for in Section 4 above, as the
case may be, shall be extended by the number of days from and including the date
of the giving of such notice to and including the date when the Initial
Purchaser, the Holders of the Securities and (to the extent applicable) any
known Participating Dealer shall have received such amended or supplemented
prospectus pursuant to this Section 7(l).
(m) Updates of Offering Memoranda. The Company will give prompt
written notice to the Initial Purchaser of the happening of any event that
requires the Company to make changes in any Offering Memorandum in order that
such Offering Memorandum neither contains an untrue statement of a material fact
nor omits to state a material fact required to be stated therein or necessary to
make the statements therein (in light of the circumstances under which they were
made) not misleading, which written notice need not provide any detail as to the
nature of such event. Upon the occurrence of any such event, the Company shall
promptly prepare an amendment or supplement to such Offering Memorandum and any
other required document so that, as thereafter delivered by Holders of the
Securities covered thereby to purchasers of Securities, such Offering Memorandum
will not contain an 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 light of the circumstances under which they were made) not
misleading. If the Company so notifies the Initial Purchaser to suspend the use
of an Offering Memorandum until the requisite changes to such Offering
Memorandum have been made, then the Initial Purchaser shall suspend use of such
Offering Memorandum until the requisite changes have been made.
(n) CUSIP Numbers. Not later than the effective date of the
applicable Registration Statement, the Company will provide CUSIP numbers for
the Initial Securities, the Exchange Securities or the Private Exchange
Securities, as the case may be, and provide the Transfer Agent, as applicable,
with printed certificates for the Initial Securities, the Exchange Securities or
the Private Exchange Securities, as the case may be, in forms eligible for
deposit with The Depository Trust Company.
(o) Earnings Statement. The Company will comply with all rules and
regulations of the Commission to the extent and so long as they are applicable
to the Registered Exchange Offer, the Shelf Registration or the Resale
Registration, and will make generally available to its securityholders (or
otherwise provide in accordance with Section 11(a) of the Securities Act) an
earnings statement satisfying the provisions of Section 11(a) of the Securities
Act, no later than forty-five (45) days after the end of a twelve (12)-month
period (or ninety (90) days, if such period is a fiscal year) beginning with the
first month of the Company's first fiscal quarter commencing after the effective
date of the Registration Statement, which statement shall cover such 12-month
period.
(p) Information Regarding Holders. The Company may require each
Holder of Securities to be sold pursuant to the Shelf Registration Statement or
Resale Registration Statement to furnish to the Company such information
regarding the Holder and the distribution of the Securities as the Company may
from time to time reasonably require for inclusion in the such Registration
Statement, and the Company may exclude from such registration the Securities
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<PAGE> 20
of any Holder that fails to furnish or, if necessary, update such information
within a reasonable time after receiving such request.
(q) Due Diligence. In the case of the Shelf Registration, any Resale
Registration or any Offering Memorandum, the Company shall (i) make reasonably
available for inspection by (A) in the case of any Offering Memorandum, the
Initial Purchaser and any attorney, accountant or other agent retained by the
Initial Purchaser and (B) in the case of the Shelf Registration Statement or any
Resale Registration Statement, the Holders of the Securities being registered
thereunder, any Managing Underwriter, any underwriter participating in any
disposition pursuant to the Shelf Registration Statement or Resale Registration
Statement, as the case may be, and any attorney, accountant or other agent
retained by such Holders of the Securities, any such Managing Underwriter or any
such other underwriter all relevant financial and other records, pertinent
corporate documents and properties of the Company and (ii) cause the Company's
officers, directors, employees, accountants and auditors to supply all relevant
information reasonably requested by the Initial Purchaser, such Holders of the
Securities, any such Managing Underwriter or any such underwriter, attorney,
accountant or agent in connection with such Registration Statement, in each case
as shall be reasonably necessary to enable such persons, to conduct a reasonable
investigation within the meaning of Section 11 of the Securities Act, whether or
not applicable; provided, however, that the foregoing inspection and information
gathering set forth in clause (ii) shall be coordinated on behalf of the Initial
Purchaser and the other parties, by one counsel (the "Designated Counsel")
designated by and on behalf of Holders of a majority of the Securities covered
by such Registration Statement; provided further, however, that each such party
shall be required to maintain in confidence and not to disclose to any other
person any information or records reasonably designated by the Company as being
confidential, until such time as (X) such information becomes a matter of public
record (whether by virtue of its inclusion in such Registration Statement or
otherwise, except by disclosure by such party in breach of this Agreement), or
(Y) such person shall be required so to disclose such information pursuant to
the subpoena or order of any court or other governmental agency or body having
jurisdiction over the matter (subject to, and only to the extent required by,
the requirements of such order, and only after such person shall have given the
Company prompt prior written notice of such requirement), or (Z) such
information is required to be set forth in such Offering Memorandum or such
Registration Statement or the prospectus included therein or in an amendment to
such Offering Memorandum or such Registration Statement or an amendment or
supplement to such prospectus in order that such Offering Memorandum,
Registration Statement, prospectus, amendment or supplement, as the case may be,
does not contain an untrue statement of a material fact or omit to state therein
a material fact required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances then existing.
(r) Opinion of Counsel and Comfort Letter with respect to Registered
Exchange Offer. In the case of the Registered Exchange Offer, if requested by
the Initial Purchaser or any known Participating Dealer, the Company shall cause
(i) its counsel to deliver to the Initial Purchaser or such Participating Dealer
signed opinions in the form required by Sections 6(c), (d) and (g) of the
Purchase Agreement with such changes as are customary in connection with the
preparation of a Registration Statement and (ii) its independent public
accountants to deliver to
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the Initial Purchaser or such Participating Dealer a comfort letter, in
customary form, meeting the requirements as to the substance thereof as set
forth in Section 6(a) of the Purchase Agreement, with appropriate date changes.
(s) Opinion of Counsel; Officers' Certificates; Comfort Letter. In
the case of any Shelf Registration, any Resale Registration or any offering
pursuant to an Offering Memorandum, the Company, if requested by the Designated
Counsel, shall cause:
(i) its counsel to deliver an opinion and updates thereof
relating to the Securities in customary form addressed to the Holders of the
Securities to be sold pursuant to such Registration Statement or Offering
Memorandum and the underwriters or placement agents, if any, acting with respect
thereto and dated, in the case of the initial opinion, the effective date of the
applicable Shelf Registration Statement, Resale Registration Statement or
Offering Memorandum (it being agreed that the matters to be covered by such
opinion shall include, without limitation and to the extent applicable, the due
incorporation and good standing of the Company and its subsidiaries; the
qualification of the Company and its subsidiaries to transact business as
foreign corporations; the due authorization, execution and delivery of the
relevant agreement of the type referred to in Section 1(c) or 4(d) hereof; the
due authorization, execution, authentication and issuance, and the validity and
enforceability, of the applicable Securities; the absence of material legal or
governmental proceedings involving the Company and its subsidiaries; the absence
of governmental approvals required to be obtained in connection with the
Registration Statement, the offering and sale of the applicable Securities, or
any agreement of the type referred to in Section 1(c) or 4(d) hereof and the
compliance as to form of such Registration Statement and any documents
incorporated by reference therein with the requirements of the Securities Act
(or in the case of an Offering Memorandum, the form of registration statement
that would be available to the Company if the relevant Securities were being
sold pursuant to an effective registration statement under the Securities Act).
Such opinion shall also state that no facts have come to its attention which
lead such counsel to believe that, as of the date of the opinion and as of the
effective date of the Registration Statement or most recent post-effective
amendment thereto, as the case may be, the Registration Statement and the
prospectus included therein, as then amended or supplemented, and from any
documents incorporated by reference therein contain any untrue statement of a
material fact or omit to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading in the light
of the circumstances existing at the time that such documents were filed with
the Commission under the Exchange Act (it being understood that such counsel
shall not be required to express any opinion as to the financial statements and
related notes, the financial projections and other financial and accounting data
included therein or appended thereto));
(ii) its officers to execute and deliver all customary
documents and certificates and updates thereof requested by the Designated
Counsel; and
(iii) its independent public accountants to provide to the
selling Holders of the applicable Securities and any underwriter or placement
agent acting with respect thereto a comfort letter in customary form and
covering matters of the type customarily covered in
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comfort letters in connection with primary underwritten offerings, subject to
receipt of appropriate documentation as contemplated, and only if permitted, by
Statement of Auditing Standards No. 72.
(t) Broker-Dealers. In the event that any broker-dealer registered
under the Exchange Act shall underwrite any Securities or participate as a
member of an underwriting syndicate or selling group or "assist in the
distribution" (within the meaning of the Conduct Rules of the National
Association of Securities Dealers, Inc. ("NASD")) thereof, whether as a Holder
of such Securities or as an underwriter, a placement or sales agent or a broker
or dealer in respect thereof, or otherwise, the Company shall assist such
broker-dealer in complying with the requirements of such Conduct Rules,
including, without limitation, by (i) if Rule 2720 thereto shall so require,
engaging a "qualified independent underwriter" (as defined in Rule 2720) to
participate in the preparation of the Registration Statement or Offering
Memorandum relating to such Securities, to exercise usual standards of due
diligence in respect thereto and, if any portion of the offering contemplated by
such Registration Statement or Offering Memorandum is an underwritten offering
or is made through a placement or sales agent, to recommend the yield of such
Securities, (ii) indemnifying any such qualified independent underwriter to the
extent of the indemnification of underwriters provided in Section 9 hereof and
(iii) providing such information to such broker-dealer as may be required in
order for such broker-dealer to comply with the requirements of the Conduct
Rules of the NASD.
(u) Best Efforts. The Company shall use its best efforts to take all
other steps necessary to effect the registration of the Securities covered by a
Registration Statement contemplated hereby.
(v) Certain Restrictions on Sales. The Company agrees that, without
the prior written consent of the Initial Purchaser, during the thirty (30) days
preceding and the sixty (60) days following the effectiveness of a Resale
Registration Statement or during the sixty (60) days following the date that the
Company shall have provided the Initial Purchaser an Offering Memorandum for its
use, as applicable, neither the Company nor any of its subsidiaries will offer,
sell, contract to sell, pledge or otherwise dispose of, directly or indirectly,
or file with the Commission a registration statement under the Securities Act
covering the sale by the Company or any of its subsidiaries of any of the
following securities if to do so would reasonably be expected to have a material
adverse effect on the sale of the Securities subject thereto:
(i) any debentures, notes, other evidences of indebtedness
or redeemable preferred stock of the Company or any of its subsidiaries that are
substantially similar to the Securities, or
(ii) any other securities that are convertible into, or
exercisable or exchangeable for any of the securities described in clause (i),
except the offer, sale, contract to sell, or other disposition of (A) the
Securities, (B) substantially similar notes or other debt securities issued
pursuant to a registered "A/B exchange" in respect of notes or other debt
securities sold by the Company pursuant to Section 4(2) of or Regulation S or
Rule 144A promulgated under the Securities Act, (C) securities issued or
delivered upon
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conversion, exchange or exercise (in each case, other than at the option of the
Company) of any other securities of the Company or any of its subsidiaries
outstanding on the date hereof, or (D) securities issued in connection with
mergers, acquisitions or similar transactions.
(w) Best Efforts to Limit Third Party Sales. The Company agrees
that, upon the written request of the Initial Purchaser, the Company will use
its best efforts to exercise such rights as it may have under agreements or
instruments to which it or any of its subsidiaries are a party or under which
they may have rights to cause such third parties as the Initial Purchaser may
identify, not to offer, sell, contract to sell, pledge or otherwise dispose of,
directly or indirectly, during the thirty (30) days preceding and the sixty (60)
days following the effectiveness of a Resale Registration Statement or the date
that the Company shall have provided the Initial Purchaser an Offering
Memorandum for its use, as applicable, any of the following securities if to do
so would reasonably be expected to have a material adverse effect on the sale of
the Securities subject to such Registration Statement or Offering Memorandum:
(i) any debentures, notes, other evidences of indebtedness
or redeemable preferred stock of the Company or any of its subsidiaries that are
substantially similar to the Securities, or
(ii) any other securities that are convertible into, or
exercisable or exchangeable for any of the securities described in clause (i).
(y) No "Piggyback" Registration Rights. The Company agrees that,
without the prior written consent of the Initial Purchaser, neither the Company
nor any of its subsidiaries will grant to any third party the right (i.e.,
so-called "piggy-back" registration rights") to register for sale pursuant to
any Resale Registration Statement requested by the Initial Purchaser any of the
following securities if to do so would reasonably be expected to have a material
adverse effect on the sale of the Securities subject thereto:
(i) any debentures, notes, other evidences of indebtedness
or redeemable preferred stock of the Company or any of its subsidiaries that are
substantially similar to the Securities, or
(ii) any other securities that are convertible into, or
exercisable or exchangeable for any of the securities described in clause (i).
8. EXPENSES.
(a) Expenses of the Company; Reimbursement Obligation. The Company
(i) shall bear all of its own costs, fees and expenses incurred in connection
with the performance of its obligations hereunder, including, without
limitation, those costs, fees and expenses described in Section 5(a) of the
Purchase Agreement, subject, however, to (i) the obligation of the Initial
Purchaser to reimburse the Company for certain costs, fees and expenses of the
Company to the extent provided in Section 5(b) of the Purchase Agreement and
(ii) concurrently with the execution hereof, is reimbursing the Initial
Purchaser for certain costs, fees and expenses of the Initial Purchaser to the
extent provided in the proviso to Section 5(c) of the Purchase Agreement.
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(b) Expenses of the Initial Purchaser; Reimbursement Obligation. The
Initial Purchaser (i) shall bear all of its own costs, fees and expenses
incurred in connection with this Agreement, including, without limitation, those
costs, fees and expenses described in Section 5(c) of the Purchase Agreement,
subject, however, to the obligation of the Company to reimburse the Initial
Purchaser, concurrently with the execution hereof, for certain costs, fees and
expenses of the Initial Purchaser to the extent provided in the proviso to
Section 5(c) of the Purchase Agreement and (ii) shall reimburse the Company for
certain costs, fees and expenses of the Company to the extent provided in
Section 5(b) of the Purchase Agreement.
(c) Expenses of the Holders Other than the Initial Purchaser. Each
Holder (other than the Initial Purchaser), shall bear all of its own costs, fees
and expenses incurred in connection with this Agreement, including, without
limitation, (i) the fees and expenses of counsel for such Holder incurred in
connection with the Exchange Offer Registration Statement or the Shelf
Registration Statement; (ii) all costs, fees and expenses of such Holder
incurred in connection with the Registered Exchange or the Private Exchange, as
the case may be; and (iii) all agency fees and commissions, underwriting
discounts and commissions, and placement fees payable in connection with the
resale of any of the Securities.
9. INDEMNIFICATION.
(a) Indemnification by the Company with Respect to Registration
Statements. The Company agrees to indemnify and hold harmless each Holder of
Securities, any Participating Dealer and each person, if any, who controls such
Holder or such Participating Dealer within the meaning of Section 15 of the
Securities Act or Section 20(a) of the Exchange Act from and against any losses,
claims, damages or liabilities, joint or several, or any actions in respect
thereof (including, but not limited to, any losses, claims, damages, liabilities
or actions relating to purchases and sales of the Securities), as incurred, to
which each such indemnified party may become subject under the Securities Act,
the Exchange Act or otherwise, insofar as such losses, claims, damages,
liabilities or actions arise out of or are based upon any untrue statement or
alleged untrue statement of a material fact contained in a Registration
Statement or prospectus or in any amendment or supplement thereto or in any
preliminary prospectus relating to the Registered Exchange Offer, the Private
Exchange, the Shelf Registration or a Resale Registration, or arise out of, or
are based upon, the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading, and, subject to Section 9(e), shall reimburse, as incurred, such
indemnified parties for any legal or other expenses reasonably incurred by them
in connection with investigating or defending any such loss, claim, damage,
liability or action in respect thereof; provided, however, that (i) the Company
shall not be liable in any such case to the extent that such loss, claim, damage
or liability arises out of or is based upon any untrue statement or alleged
untrue statement or omission or alleged omission made in a Registration
Statement or prospectus or in any amendment or supplement thereto or in any
preliminary prospectus relating to the Shelf Registration or a Resale
Registration in reliance upon and in conformity with written information
pertaining to such Holder or Participating Dealer and furnished to the Company
by or on behalf of such Holder specifically for inclusion therein, (ii) with
respect to any untrue statement or omission or alleged untrue statement or
omission made in any prospectus relating to the
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Exchange Offer Registration Statement, the Shelf Registration Statement or the
Resale Registration Statement, the indemnity agreement contained in this Section
9(a) shall not inure to the benefit of any Holder or Participating Dealer from
whom the person asserting any such losses, claims, damages or liabilities
purchased the Securities concerned, to the extent that a prospectus relating to
such Securities was required to be delivered by such Holder or Participating
Dealer under the Securities Act in connection with such purchase and any such
loss, claim, damage or liability of such Holder or Participating Dealer results
from the fact that there was not sent or given to such person, at or prior to
the written confirmation of the sale of such Securities to such person, a copy
of the final prospectus, as amended or supplemented, if the Company had
previously furnished copies thereof to such Holder or Participating Dealer; and
(iii) if (A) the Company notified the Initial Purchaser, each Holder of
Securities and each known Participating Dealer to suspend the use and delivery
of any prospectus and (B) promptly delivered an amended or supplemental
prospectus not containing an untrue statement or omission to the Initial
Purchaser, each Holder of Securities and each known Participating Dealer, then
the Company shall not be liable in any case to the extent such loss, claim,
damage or liability arises out of or is based upon any untrue statement or
alleged untrue statement or omission or alleged omission made in a prospectus or
in any amendment or supplement thereto or in any preliminary prospectus relating
to the Registered Exchange Offer, the Private Exchange, the Shelf Registration
or a Resale Registration if such prospectus or preliminary prospectus was
delivered in connection with the offering or sale of the Securities by any
person receiving notice pursuant to clause (A) hereof after the date of such
notice; provided further, however, that this indemnity agreement will be in
addition to any liability which the Company may otherwise have to such
indemnified party. The Company shall also indemnify the Managing Underwriters
and any other underwriters, their officers and directors and each person who
controls such Managing Underwriters or other underwriters within the meaning of
Section 15 of the Securities Act or Section 20(a) of the Exchange Act to the
same extent as provided above with respect to the indemnification of the Holders
of the Securities if requested by such Holders.
(b) Indemnification by the Holders with Respect to a Registration
Statement. Each Holder of the Securities, severally and not jointly, will
indemnify and hold harmless the Company, each director of the Company, each
officer of the Company who signed the Registration Statement and each other
person, if any, who controls the Company within the meaning of Section 15 of the
Securities Act or Section 20(a) of the Exchange Act from and against any losses,
claims, damages or liabilities or any actions in respect thereof, as incurred,
to which the Company or any such controlling person may become subject under the
Securities Act, the Exchange Act or otherwise, insofar as such losses, claims,
damages, liabilities or actions arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in a
Registration Statement or prospectus or in any amendment or supplement thereto
or in any preliminary prospectus relating to the Shelf Registration or a Resale
Registration, or arise out of or are based upon the omission or alleged omission
to state therein a material fact necessary to make the statements therein not
misleading, in light of the circumstances under which they were made, but in
each case only to the extent that the untrue statement or omission or alleged
untrue statement or omission was made in reliance upon and in conformity with
written information pertaining to such Holder and furnished to the Company by or
on behalf of such Holder specifically for inclusion therein; and, subject to
Section 9(e) and to the limitation
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<PAGE> 26
set forth immediately preceding this clause, shall reimburse, as incurred, the
Company for any legal or other expenses reasonably incurred by the Company or
any such controlling person in connection with investigating or defending any
loss, claim, damage, liability or action in respect thereof. This indemnity
agreement will be in addition to any liability which such Holder may otherwise
have to the Company or any of its controlling persons.
(c) Indemnification by the Company with Respect to Offering
Memoranda. The Company agrees to indemnify and hold harmless the Initial
Purchaser and each person, if any, who controls the Initial Purchaser within the
meaning of Section 15 of the Securities Act or Section 20(a) of the Exchange Act
from and against any losses, claims, damages or liabilities, joint or several,
or any actions in respect thereof (including, but not limited to, any losses,
claims, damages, liabilities or actions relating to purchases and sales of the
Securities), as incurred, to which each such indemnified party may become
subject under the Securities Act, the Exchange Act or otherwise, insofar as such
losses, claims, damages, liabilities or actions arise out of or are based upon
any untrue statement or alleged untrue statement of a material fact contained in
an Offering Memorandum or in any amendment or supplement thereto, or arise out
of, or are based upon, the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and, subject to Section 9(e), shall reimburse, as
incurred, such indemnified parties for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such loss,
claim, damage, liability or action in respect thereof; provided, however, that
(i) the Company shall not be liable in any such case to the extent that such
loss, claim, damage or liability arises out of or is based upon any untrue
statement or alleged untrue statement or omission or alleged omission made in an
Offering Memorandum or in any amendment or supplement thereto in reliance upon
and in conformity with written information pertaining to the Initial Purchaser
and furnished to the Company by or on behalf of the Initial Purchaser
specifically for inclusion therein, (ii) with respect to any untrue statement or
omission or alleged untrue statement or omission made in any Offering
Memorandum, the indemnity agreement contained in this Section 9(c) shall not be
available for the benefit of the Initial Purchaser, to the extent that the
Offering Memorandum was required to be delivered by the Initial Purchaser to any
person purchasing Securities from the Initial Purchaser and any such loss,
claim, damage or liability of the Initial Purchaser results from the fact that
there was not sent or given to such person, at or prior to the written
confirmation of the sale of such Securities to such person, a copy of the
Offering Memorandum, as amended or supplemented, if the Company had previously
furnished copies thereof to the Initial Purchaser; and (iii) if (A) the Company
notified the Initial Purchaser to suspend the use and delivery of any Offering
Memorandum and (B) promptly delivered an amended Offering Memorandum not
containing an untrue statement or omission to the Initial Purchaser, then the
Company shall not be liable in any case to the extent such loss, claim, damage
or liability arises out of or is based upon any untrue statement or alleged
untrue statement or omission or alleged omission made in an Offering Memorandum
if such Offering Memorandum was delivered in connection with the offering or
sale of the Securities by the Initial Purchaser after the date of the notice
given pursuant to clause (A) hereof; provided further, however, that this
indemnity agreement will be in addition to any liability which the Company may
otherwise have to such indemnified party. The Company shall also indemnify the
Placement Agents, their officers and directors and each person who controls such
Placement Agents within the meaning of Section 15
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<PAGE> 27
of the Securities Act or Section 20(a) of the Exchange Act to the same extent as
provided above with respect to the indemnification of the Holders of the
Securities if requested by such Holders.
(d) Indemnification by the Initial Purchaser with Respect to an
Offering Memorandum. The Initial Purchaser will indemnify and hold harmless the
Company, each director of the Company and each other person, if any, who
controls the Company within the meaning of Section 15 of the Securities Act or
Section 20(a) of the Exchange Act from and against any losses, claims, damages
or liabilities or any actions in respect thereof, as incurred, to which the
Company or any such controlling person may become subject under the Securities
Act, the Exchange Act or otherwise, insofar as such losses, claims, damages,
liabilities or actions arise out of or are based upon any untrue statement or
alleged untrue statement of a material fact contained in an Offering Memorandum
or in any amendment or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact necessary to make
the statements therein not misleading, in light of the circumstances under which
they were made, but in each case only to the extent that the untrue statement or
omission or alleged untrue statement or omission was made in reliance upon and
in conformity with written information pertaining to the Initial Purchaser and
furnished to the Company by or on behalf of the Initial Purchaser specifically
for inclusion therein; and, subject to Section 9(e) and to the limitation set
forth immediately preceding this clause, shall reimburse, as incurred, the
Company for any legal or other expenses reasonably incurred by the Company or
any such controlling person in connection with investigating or defending any
loss, claim, damage, liability or action in respect thereof. This indemnity
agreement will be in addition to any liability which the Initial Purchaser may
otherwise have to the Company or any of its controlling persons.
(e) Indemnification Procedures. Promptly after receipt by an
indemnified party under this Section 9 of notice of the commencement of any
action or proceeding (including a governmental investigation), such indemnified
party will, if a claim in respect thereof is to be made against the indemnifying
party under this Section 9, notify the indemnifying party of the commencement
thereof; but the omission so to notify the indemnifying party will not, in any
event, relieve the indemnifying party from any obligations to any indemnified
party other than the indemnification obligation provided in subsection (a), (b),
(c) or (d), as the case may be, 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 reasonably
satisfactory to such indemnified party (in which case such indemnified party
shall be entitled, at its option, to engage at the indemnifying party's cost,
separate counsel reasonably satisfactory to the indemnifying party to act on
behalf of all indemnified parties in connection with such action), and after
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 9 for any legal or other expenses, other
than reasonable costs of investigation, subsequently incurred by such
indemnified party in connection with the defense thereof. 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
27
<PAGE> 28
settlement provides for the payment of money damages only which are paid by the
indemnifying party. Notwithstanding the foregoing, no settlement shall release
the indemnifying party of its indemnification obligations under this Section 9
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
(f) Contribution. If the indemnification provided for in this
Section 9 is unavailable or insufficient to hold harmless an indemnified party
under subsection (a), (b), (c) or (d), as the case may be, 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 (or
actions in respect thereof) referred to in subsection (a), (b), (c) or (d), as
the case may be, above (i) in such proportion as is appropriate to reflect the
relative benefits received by the indemnifying party or parties on the one hand
and the indemnified party on the other or (ii) if the allocation provided by the
foregoing clause (i) 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 indemnifying party or parties on
the one hand and the indemnified party on the other in connection with the
statements or omissions that resulted in such losses, claims, damages or
liabilities (or actions in respect thereof) as well as any other relevant
equitable considerations. The relative fault of the parties 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 on the one hand or
such Holder or such other indemnified party, as the case may be, on the other,
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The amount paid by
an indemnified party as a result of the losses, claims, damages or liabilities
referred to in the first sentence of this Section 9(f) 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 Section 9(f). Notwithstanding any other provision of this
Section 9(f), the Holders of the Securities shall not be required to contribute
any amount in excess of the amount by which the net proceeds received by such
Holders from the sale of the Securities pursuant to a Registration Statement or
an Offering Memorandum exceeds the amount of damages which such Holders have
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 Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 9(f), each person, if
any, who controls such indemnified party within the meaning of Section 15 of the
Securities Act or Section 20(a) of the Exchange Act shall have the same rights
to contribution as such indemnified party and each director of the Company, each
officer of the Company who signed the Registration Statement, if applicable, and
each other person, if any, who controls the Company within the meaning of
Section 15 of the Securities Act or Section 20(a) of the Exchange Act shall have
the same rights to contribution as the Company.
(g) Survival. The agreements contained in this Section 9 shall
survive the sale of the Securities pursuant to a Registration Statement or an
Offering Memorandum and shall remain in
28
<PAGE> 29
full force and effect, regardless of any termination or cancellation of this
Agreement or any investigation made by or on behalf of any indemnified party.
10. AVAILABILITY OF INFORMATION.
(a) Certain Required Information. Whether or not required by the
Commission, so long as any Securities are outstanding, the Company will furnish
to the Holders of Securities within the time periods specified in the
Commission's rules and regulations:
(i) all quarterly and annual financial information that
would be required to be contained in a filing with the Commission on Forms 10-Q
and 10-K if the Company were required to file such Forms and, with respect to
the annual information only, a report thereon by the Company's certified
independent accountants; and
(ii) all current reports that would be required to be filed
with the Commission on Form 8-K if the Company were required to file such
reports.
The information under paragraph (i) will include:
(x) a "Management's Discussion and Analysis of Financial
Condition and Results of Operations" ("MD&A") that describes the financial
condition and results of operations of the Company and its consolidated
Subsidiaries (as defined in the Certificate of Designation); and
(y) an MD&A and other information in reasonable detail
regarding the financial condition and results of operations of the Company and
its Restricted Subsidiaries (as defined in the Certificate of Designation)
separate from the financial condition and results of operations of the
Unrestricted Subsidiaries (as defined in the Certificate of Designation) of the
Company, which other information may be furnished either on the face of the
financial statements or in the footnotes thereto.
(b) Additional Information Required if Company is Not a Reporting
Company. In addition, at anytime that the Company is not subject to Section 13
or 15(d) of the Exchange Act, the Company will promptly furnish or cause to be
furnished to the Initial Purchaser and, upon the request of Holders and
prospective purchasers of the Securities, to such Holders and prospective
purchasers, copies of the information required to be delivered to Holders and
prospective purchasers of the Securities pursuant to Rule 144A(d)(4) promulgated
under the Securities Act (or any successor provision thereto) in order to permit
compliance with Rule 144A promulgated under the Securities Act in connection
with resales by the Initial Purchaser or such Holders.
(c) Timely Reporting. For so long as the Company is subject to
Section 13 or 15(d) of the Exchange Act, the Company will timely file all
reports required under Section 13 or 15(d), as the case may be, of the Exchange
Act.
11. DEFINITIONS. Capitalized terms used in this Agreement shall have
the following meanings:
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<PAGE> 30
"Additional Securities" means Debentures issued by the Company to
Holders of the then outstanding Debentures as interest on such outstanding
debentures in accordance with the Indenture.
"Additional Step-Up" is defined in Section 5(b) of this Agreement.
"Affiliate" of any Person means any other Person directly or indirectly
controlling or controlled by or under direct or indirect common control with
such Person. For the purposes of this definition, "control" when used with
respect to any Person means the power to direct the management and policies of
such Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Beneficially Own" and "Beneficial Owner" have the meanings set forth in
Rules 13d-3 and 13d-5 under the Exchange Act whether or not applicable.
"Commission" is defined in Section 2(a) of this Agreement.
"Company" is defined in the Preamble to this Agreement.
"Debentures" is defined in the Preamble to this Agreement.
"Designated Counsel" is defined in Section 7(q) of this Agreement.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Exchange Debentures" is defined in Section 2(a) of this Agreement.
"Exchange Offer Registration Period" is defined in Section 2(a) of this
Agreement.
"Exchange Offer Registration Statement" is defined in Section 2(a) of
this Agreement.
"Exchange Securities" is defined in Section 2(a) of this Agreement.
"Holders" is defined in the Preamble to this Agreement.
"Indenture" is defined in the Preamble to this Agreement.
"Initial Offering Memorandum" is defined in Section 1(a) of this
Agreement.
"Initial Purchaser" is defined in the Preamble to this Agreement.
"Initial Securities" means the Debentures purchased by the Initial
Purchaser pursuant to the Purchase Agreement and (as the context may require)
any Additional Securities issued in respect thereof, in each case whether or not
such Securities are held by the Initial Purchaser at any relevant time.
"Issue Date" means the date of original issuance of the Debentures.
30
<PAGE> 31
"Managing Underwriters" is defined in Section 4(d) of this Agreement.
"NASD" is defined in Section 7(t) of this Agreement.
"Note Offering" is defined in Section 1 of this Agreement.
"Offering Memoranda" is defined in Section 6(b)(i) of this Agreement.
"Participating Dealer" any broker-dealer that is a Beneficial Owner of
Exchange Securities received by such broker-dealer in the Registered Exchange
Offer.
"Person" means any individual, corporation, partnership, joint venture,
trust, unincorporated organization or government or any agency or political
subdivision thereof.
"Placement Agents" is defined in Section 1(b) of this Agreement.
"Private Exchange" is defined in Section 2(e) of this Agreement.
"Private Exchange Securities" is defined in Section 2(e) of this
Agreement.
"Purchase Agreement" is defined in the Preamble to this Agreement.
"Registered Exchange Offer" is defined in Section 2(a) of this
Agreement.
"Registration Delay" is defined in Section 4(b) of this Agreement.
"Registration Statements" is defined in Section 4(a) of this Agreement.
"Required Delivery Date" is defined in Section 1 of this Agreement.
"Required Filing Date" means 45 days after (or if such 45th day is not a
business day, the first business day thereafter) the date of the closing of the
sale of Initial Securities pursuant to the Initial Offering Memorandum.
"Resale Registration" is defined in Section 4(a) of this Agreement.
"Resale Registration Statement" is defined in Section 4(a) of this
Agreement.
"Securities" is defined in Section 2(e) of this Agreement.
"Securities Act" is defined in Section 1(a) of this Agreement.
"Shelf Blackout Right" is defined in Section 3(d) of this Agreement.
"Shelf Registration" is defined in Section 3(a) of this Agreement.
"Shelf Registration Statement" is defined in Section 3(a) of this
Agreement.
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"Special Shelf Trigger" is defined in Section 6(c) of this Agreement.
"Special Triggering Event" is defined in Section 6(a) of this Agreement.
"Step-Down Date" is defined in Section 5(b) of this Agreement.
"Step-Up" is defined in Section 5(b) of this Agreement.
"Transfer Restricted Securities" means any of the Securities until such
time as (i) such Security has been exchanged pursuant to the Registered Exchange
Offer by any person other than a broker-dealer for a freely transferable
Exchange Security; (ii) such Security is sold by a broker-dealer who received
such Security in exchange for another Transfer Restricted Security pursuant to
the Registered Exchange Offer and in turn sells such Security to a purchaser who
receives from such broker-dealer on or prior to the date of such sale a copy of
the prospectus contained in the Exchange Offer Registration Statement; (iii)
such Security has been effectively registered under the Securities Act and
disposed of in accordance with the Shelf Registration Statement or a Resale
Registration Statement; (iv) such Security is distributed to the public pursuant
to Rule 144 promulgated under the Securities Act, or (v) such Security is
salable to the public pursuant to Rule 144(k) promulgated under the Securities
Act unless such Security is Beneficially Owned by the Initial Purchaser or any
Affiliate of the Initial Purchaser.
"Trustee" is defined in Section 2(g)(ii) of this Agreement.
"Triggered Offering Memorandum" is defined in Section 6(b)(i) of this
Agreement.
"Triggering Event" is defined in Section 5(a) of this Agreement.
12. MISCELLANEOUS.
(a) 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, except by written agreement or
instrument executed by the Company and the Initial Purchaser.
(b) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand delivery, first-class mail,
facsimile transmission, or air courier which guarantees overnight delivery:
(i) if to a Holder of the Securities, at the most current
address given by such Holder to the Company in accordance with the provisions of
this Section 12(b).
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<PAGE> 33
(ii) if to the Initial Purchaser, at the following address:
Nortel Networks Inc.
2221 Lakeside Boulevard
Richardson, Texas 75082-4399
Attention: Vice President,
Customer Finance, North America
Telecopier: (972) 684-3679
with a copy to:
Gibson, Dunn & Crutcher LLP
333 South Grand Avenue
Los Angeles, California 90071
Attention: Bruce D. Meyer, Esq.
Telecopier: (213) 229-7520
(iii) if to the Company, at its address as follows:
VoiceStream Wireless Corporation
3650 131st Avenue S.E.
Bellevue, Washington 98006
Attention: General Counsel
Telecopier: (425) 586-8090
with a copy to:
Friedman Kaplan & Seiler LLP
875 Third Avenue, 8th Floor
New York, New York 10022-6225
Attention: Barry Adelman, Esq./
Gregg Lerner, Esq.
Telecopier: (212) 355-6401
All such notices and communications shall be deemed to have been duly given: at
the time delivered by hand, if personally delivered; three business days after
being deposited in the mail, postage prepaid, if mailed; when receipt is
acknowledged by recipient's facsimile machine operator, if sent by facsimile
transmission; and on the day delivered, if sent by overnight air courier
guaranteeing next day delivery.
(c) No Inconsistent Agreements. The Company has not, as of the date
hereof, entered into, nor shall it, on or after the date hereof, enter into, any
agreement with respect to its securities that is inconsistent with the rights
granted to the Holders herein or otherwise conflicts with the provisions hereof.
Notwithstanding anything to the contrary contained in this Agreement, it is
hereby acknowledged and agreed that the Company shall have no liability for
monetary damages to the Initial Purchaser or any Holder for any breaches,
failures to comply or violations by it of this Agreement (other than Sections 8
and 9) except as expressly provided in Section 9 hereof; provided, however, in
the event that the Company breaches, fails to comply or
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<PAGE> 34
violates the provisions of Section 1, 2, 3, 4, 7 or 10 hereof, the Holders shall
be entitled to equitable relief, including injunction and specific performance;
provided further, however, that, notwithstanding anything herein to the
contrary, in the case of the occurrence of a Triggering Event or a Special
Triggering Event, the sole recourse and rights of the Holders or the Initial
Purchaser and the Participating Dealers, as the case may be, are those set forth
in Section 5 or 6, as the case may be, and in Sections 202 and 301 of the
Indenture.
(d) Successors and Assigns. This Agreement shall be binding upon the
Company and the Initial Purchaser and their respective successors and assigns.
The benefits of this Agreement are intended to be for the benefit of and may be
enforced by any Holder of Transfer Restricted Securities. The benefits of this
Agreement may be assigned in whole or in part by the Initial Purchaser to any
Person that purchases or otherwise acquires all or any rights in any Transfer
Restricted Securities.
(e) Counterparts; Facsimiles. 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, and may be executed
by facsimile.
(f) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(g) GOVERNING LAW; Submission to Jurisdiction. THIS AGREEMENT SHALL
BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS.
Each of the Company and the Initial Purchaser hereby submits to the
non-exclusive jurisdiction of the Federal and state courts in the Borough of
Manhattan in The City of New York in any suit or proceeding arising out of or
relating to this Agreement or the transactions contemplated thereby.
(h) Severability. If any one or more of the provisions contained
herein, or the application thereof in any circumstance, is held invalid, illegal
or unenforceable, the validity, legality and enforceability of any such
provision in every other respect and of the remaining provisions contained
herein shall not be affected or impaired thereby.
(i) Securities Held by the Company. Whenever the consent or approval
of Holders of a specified percentage of principal amount of Securities is
required hereunder, Securities held by the Company or its affiliates (other than
subsequent Holders of Securities if such subsequent Holders are deemed to be
affiliates solely by reason of their holdings of such Securities) shall not be
counted in determining whether such consent or approval was given by the Holders
of such required percentage.
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If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this Debenture Exchange and Registration Rights Agreement, along with all
counterparts, will become a binding agreement between the Initial Purchaser and
the Company in accordance with its terms.
Very truly yours,
VOICESTREAM WIRELESS CORPORATION
By: /s/ Cregg Baumbaugh
-------------------------------------
Name: Cregg Baumbaugh
Title: Executive Vice President
S-1
<PAGE> 36
The foregoing Debenture Exchange and Registration Rights Agreement is hereby
confirmed and accepted as of the date first above written:
NORTEL NETWORKS INC.
By: /s/ Michael W. McCorkle
----------------------------------
Name: Michael W. McCorkle
Title: Director, Customer Finance
S-2
<PAGE> 37
ANNEX A
Each broker-dealer that receives Exchange Securities for its own account
pursuant to an Exchange Offer must acknowledge that it will deliver a prospectus
in connection with any resale of such Exchange Securities. The Letter of
Transmittal states that by so acknowledging and by delivering a prospectus, a
broker-dealer will not be deemed to admit that it is an "underwriter" within the
meaning of the Securities Act. This Prospectus, as it may be amended or
supplemented from time to time, may be used by a broker-dealer in connection
with resales of Exchange Securities received in exchange for Initial Securities
where such Initial Securities were acquired by such broker-dealer as a result of
market-making activities or other trading activities. The Company has agreed
that, for a period of 90 days after the Expiration Date (as defined herein), it
will make this Prospectus available to any broker-dealer for use in connection
with any such resale. See "Plan of Distribution."
A-1
<PAGE> 38
ANNEX B
Each broker-dealer that receives Exchange Securities for its own account
in exchange for Initial Securities, where such Initial Securities were acquired
by such broker-dealer as a result of market-making activities or other trading
activities, must acknowledge that it will deliver a prospectus in connection
with any resale of such Exchange Securities. See "Plan of Distribution."
B-1
<PAGE> 39
ANNEX C
PLAN OF DISTRIBUTION
Each broker-dealer that receives Exchange Securities for its own account
pursuant to an Exchange Offer must acknowledge that it will deliver a prospectus
in connection with any resale of such Exchange Securities. This Prospectus, as
it may be amended or supplemented from time to time, may be used by a
broker-dealer in connection with resales of Exchange Securities received in
exchange for Initial Securities where such Initial Securities were acquired as a
result of market-making activities or other trading activities. The Company has
agreed that, for a period of 90 days after the Expiration Date, it will make
this prospectus, as amended or supplemented, available to any broker-dealer for
use in connection with any such resale. In addition, until ______________, 2000,
all dealers effecting transactions in the Exchange Securities may be required to
deliver a prospectus.(1)
The Company will not receive any proceeds from any sale of Exchange
Securities by broker-dealers. Exchange Securities received by broker-dealers for
their own account pursuant to an Exchange Offer may be sold from time to time in
one or more transactions, including private sales directly or through brokers or
agents, in the over-the-counter market, in negotiated transactions or at fixed
prices, through brokers acting as agents in transactions that may involve block
transactions, through special offerings at market prices available at the time
of sale, through the writing of options on the Exchange Securities or a
combination of such methods of resale, at market prices prevailing at the time
of resale, at prices related to such prevailing market prices or negotiated
prices. Any such resale may be made directly to purchasers or to or through
brokers or dealers who may receive compensation in the form of commissions or
concessions from any such broker-dealer or the purchasers of any such Exchange
Securities. Any broker-dealer that resells Exchange Securities that were
received by it for its own account pursuant to an Exchange Offer and any broker
or dealer that participates in a distribution of such Exchange Securities may be
deemed to be an "underwriter" within the meaning of the Securities Act and any
profit on any such resale of Exchange Securities and any commission or
concessions received by any such persons may be deemed to be underwriting
compensation under the Securities Act. The Letter of Transmittal states that, by
acknowledging that it will deliver and by delivering a prospectus, a
broker-dealer will not be deemed to admit that it is an "underwriter" within the
meaning of the Securities Act.
For a period of 90 days after the Expiration Date the Company will
promptly send additional copies of this Prospectus and any amendment or
supplement to this Prospectus to any broker-dealer that requests such documents
in the Letter of Transmittal. The Company has agreed to pay all expenses
incidental to the Exchange Offer (including the expenses of one counsel for the
Holders of the Securities) other than commissions or concessions of any brokers
or dealers and will indemnify the Holders of the Securities (including any
broker-dealers) against certain liabilities, including liabilities under the
Securities Act.
C-1
<PAGE> 40
- ----------
(1) In addition, the legend required by Item 502(e) of Regulation S-K will
appear on the back cover page of the Exchange Offer prospectus.
C-2
<PAGE> 41
ANNEX D
[ ] CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10
ADDITIONAL COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY
AMENDMENTS OR SUPPLEMENTS THERETO.
Name:
----------------------------------------
Address:
----------------------------------------
----------------------------------------
If the undersigned is not a broker-dealer, the undersigned represents
that it is not engaged in, and does not intend to engage in, a distribution of
Exchange Securities. If the undersigned is a broker-dealer that will receive
Exchange Securities for its own account in exchange for Initial Securities that
were acquired as a result of market-making activities or other trading
activities, it acknowledges that it will deliver a prospectus in connection with
any resale of such Exchange Securities; however, by so acknowledging and by
delivering a prospectus, the undersigned will not be deemed to admit that it is
an "underwriter" within the meaning of the Securities Act.
D-1
<PAGE> 1
EXHIBIT 4.5
VOICESTREAM WIRELESS CORPORATION
TO
HARRIS TRUST COMPANY OF CALIFORNIA, as Trustee
---------------
INDENTURE
Dated as of May 14, 1999
---------------
$400,000,000
12% Series A Senior Debentures due 2011
12% Senior Debentures due 2011
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<S> <C> <C>
ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION..............1
SECTION 101. DEFINITIONS.....................................................1
SECTION 102. COMPLIANCE CERTIFICATES AND OPINIONS...........................24
SECTION 103. FORM OF DOCUMENTS DELIVERED TO TRUSTEE.........................25
SECTION 104. ACTS OF HOLDERS; RECORD DATE...................................25
SECTION 105. NOTICES, ETC., TO TRUSTEE AND COMPANY..........................26
SECTION 106. NOTICE TO HOLDERS; WAIVER......................................26
SECTION 107. CONFLICT WITH TRUST INDENTURE ACT..............................27
SECTION 108. EFFECT OF HEADINGS AND TABLE OF CONTENTS.......................27
SECTION 109. SUCCESSORS AND ASSIGNS.........................................27
SECTION 110. SEPARABILITY CLAUSE............................................27
SECTION 111. BENEFITS OF INDENTURE..........................................27
SECTION 112. GOVERNING LAW..................................................27
SECTION 113. LEGAL HOLIDAYS.................................................28
SECTION 114. COUNTERPARTS...................................................28
ARTICLE TWO SECURITY FORMS......................................................28
SECTION 201. FORMS GENERALLY................................................28
SECTION 202. FORM OF FACE OF SECURITY.......................................29
SECTION 203. FORM OF REVERSE OF SECURITY....................................32
SECTION 204. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION................36
ARTICLE THREE THE SECURITIES......................................................36
SECTION 301. TITLE AND TERMS................................................36
SECTION 302. DENOMINATIONS..................................................38
SECTION 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING.................38
SECTION 304. TEMPORARY SECURITIES...........................................39
SECTION 305. GLOBAL SECURITIES..............................................39
SECTION 306. REGISTRATION; REGISTRATION OF TRANSFER AND EXCHANGE GENERALLY;
CERTAIN TRANSFERS AND EXCHANGES; SECURITIES ACT LEGENDS........40
SECTION 307. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES...............44
SECTION 308. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.................44
</TABLE>
i
<PAGE> 3
<TABLE>
<S> <C> <C>
SECTION 309. PERSONS DEEMED OWNERS..........................................45
SECTION 310. CANCELLATION...................................................46
SECTION 311. COMPUTATION OF INTEREST........................................46
ARTICLE FOUR SATISFACTION AND DISCHARGE..........................................46
SECTION 401. SATISFACTION AND DISCHARGE OF INDENTURE........................46
SECTION 402. APPLICATION OF TRUST MONEY.....................................47
ARTICLE FIVE REMEDIES............................................................48
SECTION 501. EVENTS OF DEFAULT..............................................48
SECTION 502. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.............50
SECTION 503. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT
BY TRUSTEE. ...................................................51
SECTION 504. TRUSTEE MAY FILE PROOFS OF CLAIM...............................52
SECTION 505. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF SECURITIES....52
SECTION 506. APPLICATION OF MONEY COLLECTED.................................52
SECTION 507. LIMITATION ON SUITS............................................53
SECTION 508. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL
PREMIUM AND INTEREST...........................................53
SECTION 509. RESTORATION OF RIGHTS AND REMEDIES.............................54
SECTION 510. RIGHTS AND REMEDIES CUMULATIVE.................................54
SECTION 511. DELAY OR OMISSION NOT WAIVER...................................54
SECTION 512. CONTROL BY HOLDERS.............................................54
SECTION 513. WAIVER OF PAST DEFAULTS........................................55
SECTION 514. UNDERTAKING FOR COSTS..........................................55
SECTION 515. WAIVER OF STAY OR EXTENSION LAWS...............................55
ARTICLE SIX THE TRUSTEE.........................................................56
SECTION 601. CERTAIN DUTIES AND RESPONSIBILITIES............................56
SECTION 602. NOTICE OF DEFAULTS.............................................56
SECTION 603. CERTAIN RIGHTS OF TRUSTEE......................................56
SECTION 604. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES.........58
SECTION 605. MAY HOLD SECURITIES............................................58
SECTION 606. MONEY HELD IN TRUST............................................58
SECTION 607. COMPENSATION AND REIMBURSEMENT.................................59
SECTION 608. DISQUALIFICATION; CONFLICTING INTERESTS........................59
SECTION 609. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY........................60
SECTION 610. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR..............60
SECTION 611. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.........................61
</TABLE>
ii
<PAGE> 4
<TABLE>
<S> <C> <C>
SECTION 612. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS....61
SECTION 613. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY..............62
SECTION 614. APPOINTMENT OF AUTHENTICATING AGENT............................62
ARTICLE SEVEN HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY...................63
SECTION 701. COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF HOLDERS......63
SECTION 702. PRESERVATION OF INFORMATION; COMMUNICATIONS TO HOLDERS.........64
SECTION 703. REPORTS BY TRUSTEE.............................................64
ARTICLE EIGHT CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE................65
SECTION 801. COMPANY MAY CONSOLIDATE, ETC. ONLY ON CERTAIN TERMS............65
SECTION 802. SUCCESSOR SUBSTITUTED..........................................66
ARTICLE NINE SUPPLEMENTAL INDENTURES.............................................66
SECTION 901. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.............66
SECTION 902. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS................67
SECTION 903. EXECUTION OF SUPPLEMENTAL INDENTURES...........................68
SECTION 904. EFFECT OF SUPPLEMENTAL INDENTURES..............................68
SECTION 905. CONFORMITY WITH TRUST INDENTURE ACT............................68
SECTION 906. REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES.............68
SECTION 907. NOTICE OF SUPPLEMENTAL INDENTURE...............................69
ARTICLE TEN COVENANTS...........................................................69
SECTION 1001. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST.....................69
SECTION 1002. MAINTENANCE OF OFFICE OR AGENCY................................69
SECTION 1003. MONEY FOR SECURITY PAYMENTS TO BE HELD IN TRUST................69
SECTION 1004. EXISTENCE......................................................71
SECTION 1005. MAINTENANCE OF PROPERTIES......................................71
SECTION 1006. PAYMENT OF TAXES AND OTHER CLAIMS..............................71
SECTION 1007. MAINTENANCE OF INSURANCE.......................................71
SECTION 1008. LIMITATION ON CONSOLIDATED INDEBTEDNESS........................72
</TABLE>
iii
<PAGE> 5
<TABLE>
<S> <C> <C>
SECTION 1009. LIMITATION ON PREFERRED STOCK OF RESTRICTED SUBSIDIARIES.......74
SECTION 1010. LIMITATION ON RESTRICTED PAYMENTS..............................75
SECTION 1011. LIMITATIONS CONCERNING DISTRIBUTIONS AND TRANSFERS
BY RESTRICTED SUBSIDIARIES.....................................77
SECTION 1012. LIMITATIONS ON LIENS...........................................78
SECTION 1013. LIMITATION ON TRANSACTIONS WITH AFFILIATES
AND RELATED PERSONS............................................79
SECTION 1014. LIMITATION ON ASSET SALES AND SALES OF SUBSIDIARY STOCK........80
SECTION 1015. SALE AND LEASEBACK TRANSACTIONS................................82
SECTION 1016. CHANGE OF CONTROL..............................................83
SECTION 1017. STATEMENT BY OFFICERS AS TO DEFAULT; COMPLIANCE CERTIFICATES...85
SECTION 1018. WAIVER OF CERTAIN COVENANTS....................................85
SECTION 1019. PROVISION OF FINANCIAL INFORMATION.............................86
SECTION 1020. OPTION TO CONFORM TO HIGH YIELD NOTES..........................87
SECTION 1021. PAYMENTS FOR CONSENT...........................................91
SECTION 1022. INVESTMENT COMPANY ACT COMPLIANCE..............................91
SECTION 1023. BUSINESS.......................................................91
ARTICLE ELEVEN REDEMPTION OF SECURITIES............................................92
SECTION 1101. RIGHT OF REDEMPTION............................................92
SECTION 1102. APPLICABILITY OF ARTICLE ELEVEN................................92
SECTION 1103. ELECTION TO REDEEM; NOTICE TO TRUSTEE..........................92
SECTION 1104. SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED..............92
SECTION 1105. NOTICE OF REDEMPTION...........................................93
SECTION 1106. DEPOSIT OF REDEMPTION PRICE....................................93
SECTION 1107. SECURITIES PAYABLE ON REDEMPTION DATE..........................93
SECTION 1108. SECURITIES REDEEMED IN PART....................................94
ARTICLE TWELVE DEFEASANCE AND COVENANT DEFEASANCE..................................94
SECTION 1201. COMPANY'S OPTION TO EFFECT DEFEASANCE OR COVENANT DEFEASANCE...94
SECTION 1202. DEFEASANCE AND DISCHARGE.......................................94
SECTION 1203. COVENANT DEFEASANCE............................................95
SECTION 1204. CONDITIONS TO DEFEASANCE OR COVENANT DEFEASANCE................95
SECTION 1205. DEPOSITED MONEY AND U.S. GOVERNMENT OBLIGATIONS TO BE HELD IN
TRUST; OTHER MISCELLANEOUS PROVISIONS..........................97
SECTION 1206. REINSTATEMENT..................................................97
</TABLE>
iv
<PAGE> 6
Reconciliation and tie between Trust Indenture Act of 1939 and
Indenture, dated as of May 14, 1999.
<TABLE>
<CAPTION>
TRUST INDENTURE ACT SECTION INDENTURE SECTION
- --------------------------- -----------------
<S> <C> <C>
Section 310 (a)(1)..................................................... 609
(a)(2)..................................................... 609
(a)(3)..................................................... Not applicable
(a)(4)..................................................... Not applicable
(a)(5)..................................................... 608
(b)........................................................ 608
610
(c)........................................................ Not applicable
Section 311 (a)........................................................ 613
(b)........................................................ 613
(c) Not applicable
Section 312 (a)........................................................ 701
702(a)
(b)........................................................ 702(b)
(c)........................................................ 702(c)
Section 313 (a)........................................................ 703(a)
(b)(1)..................................................... Not applicable
(b)(2)..................................................... 703(a)
(c)........................................................ 703(a)
106
(d)........................................................ 703(b)
Section 314 (a)........................................................ 704
(b)........................................................ Not applicable
(c)(1)..................................................... 102
(c)(2)..................................................... 102
(c)(3)..................................................... Not applicable
(d)........................................................ Not applicable
(e)........................................................ 102
Section 315 (a)........................................................ 601
603
(b)........................................................ 602
106
(c)........................................................ 601(a)
(d)........................................................ 601(b)
(e)........................................................ 514
</TABLE>
A-1
<PAGE> 7
<TABLE>
<CAPTION>
TRUST INDENTURE ACT SECTION INDENTURE SECTION
- --------------------------- -----------------
<S> <C> <C>
Section 316 (a)(last sentence)......................................... 101
(a)(1)(A).................................................. 512
(a)(1)(B).................................................. 513
(a)(2)..................................................... Not applicable
(b)........................................................ 508
Section 317 (a)(1)..................................................... 503
(a)(2)..................................................... 504
(b)........................................................ 1003
Section 318 (a)........................................................ 107
</TABLE>
----------------------------
This Reconciliation and tie shall not, for any purpose, be deemed to be
a part of the Indenture.
A-ii
<PAGE> 8
INDENTURE, dated as of May 14, 1999 (this "Indenture"), between
VoiceStream Wireless Corporation, a corporation duly organized and existing
under the laws of the State of Washington (herein called the "Company"), having
its principal office at 3650 131st Avenue SE, Suite 400, Bellevue, Washington
98006, and Harris Trust Company of California, a trust company duly organized
and existing under the laws of the State of California, as Trustee (herein
called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the creation of an issue of its 12%
Series A Senior Debentures due 2011 (the "Original Securities"), and 12% Senior
Debentures due 2011 (the "Exchange Securities," and together with the Original
Securities, the "Securities"), and to provide therefor the Company has duly
authorized the execution and delivery of this Indenture. All things necessary to
make the Securities, when executed by the Company and authenticated and
delivered hereunder and duly issued by the Company, the valid obligations of the
Company, and to make this Indenture a valid agreement of the Company, in
accordance with their and its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of the Securities, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. DEFINITIONS.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as the
singular;
(2) all other terms used herein which are defined in the
Trust Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have
the meanings assigned to them in accordance with GAAP (whether or not
such is indicated herein), and, except as otherwise herein expressly
provided, the term "GAAP" with respect to any computation required or
permitted hereunder shall mean such accounting principles as are in
effect at the date of such computation;
<PAGE> 9
(4) unless otherwise specifically set forth herein, all
calculations or determinations of a Person shall be performed or made on
a consolidated basis in accordance with GAAP but shall not include the
assets and liabilities or income of Unrestricted Subsidiaries, except to
the extent of dividends and distributions actually paid to the Company
or one of its Wholly Owned Restricted Subsidiaries; and
(5) 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.
Certain terms, used principally in Articles Six and Ten, are defined as
provided in such Articles.
"Acquired Indebtedness" means Indebtedness of a Person (including an
Unrestricted Subsidiary) (i) existing at the time such Person becomes a
Restricted Subsidiary or (ii) assumed in connection with the acquisition of
assets from such Person, in the case of both of the preceding clause (i) and
clause (ii), other than Indebtedness incurred in connection with, or in
contemplation of, such Person becoming a Restricted Subsidiary or such
acquisition. Acquired Indebtedness shall be deemed to be Incurred on the date of
the related acquisition of assets from any Person or the date the acquired
Person becomes a Restricted Subsidiary.
"Acquired Person" has the meaning specified in the definition of
Permitted Investment.
"Act," when used with respect to any Holder, has the meaning specified
in Section 104.
"Additional Securities" has the meaning set forth in Section 301.
"Additional Step-Up" has the meaning specified in the form of the
Securities set forth in Section 202.
"Administrative Agent" means the Person or Persons designated as the
administrative agent or the agent under a Credit Facility.
"Affiliate" of any Person means any other Person directly or indirectly
controlling or controlled by or under direct or indirect common control with
such Person. For the purposes of this definition, "control" when used with
respect to any Person means the power to direct the management and policies of
such Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Affiliated Holder" means the Company, any Subsidiary of the Company or
any Affiliates of the Company that control, are controlled by or are under
common control with the Company, directly or indirectly.
"Agent Member" means any member of, or participant in, the Depositary.
2
<PAGE> 10
"Annualized Operating Cash Flow" of any Person means, with respect to
any Reference Period, the Operating Cash Flow of such Person for such Reference
Period multiplied by two.
"Applicable Premium" means, with respect to any Security being redeemed
or paid on any Redemption Date, the greater of (i) 1.0% of the principal amount
of such Security being redeemed or paid or (ii) the excess of (A) the present
value at such Redemption Date of (1) the redemption price of such Security being
redeemed or paid at May 15, 2004 (such redemption price being set forth in the
table in Section 2.03 hereof) plus (2) all required interest payments due on
such Security being redeemed or paid through May 15, 2004 (such interest to be
deemed to be payable in cash for purposes of such determination (assuming a 360
day year consisting of 12 30-day months) but excluding unpaid interest accrued
since the most recent Interest Payment Date), computed on a semi-annual basis
using a discount rate equal to the Treasury Rate plus 75 basis points over (B)
the principal amount of such Security being redeemed or paid.
"Applicable Procedures" means, with respect to any transfer or
transaction involving a Global Security or beneficial interest therein, the
rules and procedures of the Depositary for such Security, Euroclear and CEDEL,
in each case to the extent applicable to such transaction and as in effect from
time to time.
"Asset Sale" has the meaning specified in Section 1014.
"Authenticating Agent" means any Person authorized by the Trustee to act
on behalf of the Trustee to authenticate Securities.
"Average Life" means, as of the date of determination, with respect to
any Indebtedness or Redeemable Stock, the quotient obtained by dividing (i) the
sum of the products of the numbers of years from the date of determination to
the dates of each successive scheduled principal payment of such Indebtedness or
redemption or similar payment with respect to such Redeemable Stock multiplied
by the amount of such payment by (ii) the sum of all such payments.
"Beneficial Owner" has the meaning specified in Section 1016.
"Board of Directors" of a Person which is a corporation, means either
the board of directors of that Person or any duly authorized committee of that
board.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors of the Company, to be in full force and effect on the
date of such certification and delivered to the Trustee.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which banking institutions in New York City or the
States of Washington or California are authorized or obligated by law or
executive order to close.
3
<PAGE> 11
"Capitalization Ratio" of any Person on any date (for purposes of this
definition the "Transaction Date") means, with respect to any Person and its
Restricted Subsidiaries, the ratio of (i) Consolidated Indebtedness of such
Person and its Restricted Subsidiaries on the Transaction Date to (ii) the Total
Invested Capital of such Person and its Restricted Subsidiaries on the
Transaction Date.
"Capital Lease Obligation" means that portion of any obligation of a
Person as lessee under a lease which is required to be capitalized on the
balance sheet of such lessee in accordance with GAAP.
"Capital Stock" means, with respect to any Person, any and all shares,
interests, participations or other equivalents (however designated, including
voting and non-voting) of equity of such Person.
"Cash Equivalents" means (i) securities issued or directly and fully
guaranteed or insured by the United States of America or any agency or
instrumentality thereof PROVIDED that the full faith and credit of the United
States of America is pledged in support thereof), in each case maturing within
one year after the date of acquisition, (ii) time deposits and certificates of
deposit and commercial paper issued by the parent corporation of any domestic
commercial bank of recognized standing having capital and surplus in excess of
$500 million and commercial paper issued by others rated at least A-2 or the
equivalent thereof by Standard & Poor's Corporation or at least P-2 or the
equivalent thereof by Moody's Investors Service, Inc. and in each case maturing
within one year after the date of acquisition and (iii) investments in money
market funds substantially all of whose assets comprise securities of the types
described in Clauses (i) and (ii) above.
"CEDEL" means Cedel Bank, S.A. (or any successor securities clearing
agency).
"Change of Control" has the meaning specified in Section 1016.
"Commission" means the United States Securities and Exchange Commission,
as from time to time constituted, created under the Exchange Act, or, if at any
time after the execution of this instrument such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then the
body performing such duties at such time.
"Common Stock" of any Person means Capital Stock of such Person that
does not rank prior, as to the payment of dividends or as to the distribution of
assets upon any voluntary or involuntary liquidation, dissolution or winding up
of such Person, to shares of Capital Stock of any other class of such Person.
"Company" means the Person named as the "Company" in the first paragraph
of this instrument until a successor Person shall have become such pursuant to
the applicable provisions of this Indenture and thereafter "Company" shall mean
such successor Person.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its Chairman of the Board, its President or
a Vice President, and by its
4
<PAGE> 12
Treasurer, an Assistant Treasurer, its Secretary or an Assistant
Secretary, and delivered to the Trustee.
"Consolidated Indebtedness" of any Person means at any date the
aggregate amount of all Indebtedness of such Person and its Restricted
Subsidiaries at such date.
"Consolidated Interest Expense" of any Person means for any period the
total interest expense of such Person and its Restricted Subsidiaries, whether
paid or accrued, determined on a consolidated basis in accordance with GAAP
(taking into account the effect of any Interest Hedge Agreements but without
deduction of interest income) of such Person and its Restricted Subsidiaries for
such period, including without limitation or duplication (or, to the extent not
so included, with the addition of): (i) the portion of any rental obligation in
respect of any Capital Lease Obligation allocable to interest expense in
accordance with GAAP; (ii) the amortization of debt issuance costs and
Indebtedness discounts; (iii) any payments or fees with respect to letters of
credit, bankers' acceptances or similar facilities; (iv) fees and other costs
with respect to Interest Hedge Agreements; (v) the portion of any rental
obligations in respect of any Sale and Leaseback Transaction allocable to
interest expense (determined as if such were treated as a Capital Lease
Obligation); (vi) non-cash interest payments and commissions, discounts and
other fees and charges incurred in respect of any receivables facility; (vii)
Preferred Stock dividends accrued or payable by such Person or any Restricted
Subsidiary of such Person other than dividends on Qualified Capital Stock of
such Person; (viii) interest accruing on any Indebtedness of any other Person to
the extent such Indebtedness is Guaranteed by (or secured by the assets of) such
Person or any Restricted Subsidiary of such Person; (ix) the cash contributions
to any employee stock ownership plan or similar trust to the extent such
contributions are used by such plan or trust to pay interest or fees to any
Person (other than such Person or any Restricted Subsidiary of such Person) in
connection with Indebtedness Incurred by such plan or trust. For the purposes of
Section 1010, Consolidated Interest Expense shall be adjusted to give effect to
the treatment of Restricted Subsidiaries that are not Wholly Owned Subsidiaries
in the manner referred to in the last sentence of the definition of Operating
Cash Flow.
"Consolidated Net Income" of any Person means for any period the net
income (or loss) of such Person and its Restricted Subsidiaries for such period
determined on a consolidated basis in accordance with GAAP; PROVIDED that there
shall be excluded therefrom (to the extent included and without duplication) (i)
the net income (or loss) of any Person acquired by such Person or a Restricted
Subsidiary of such Person after the date of this Indenture in a
pooling-of-interests transaction for any period prior to the date of such
transaction, (ii) the net income (or loss) of any Person that is not a
Restricted Subsidiary of such Person except to the extent of the amount of
dividends or other distributions actually paid in cash to such Person or a
Restricted Subsidiary of such Person by such other Person during such period,
(iii) any gains or losses from sales or other dispositions of Capital Stock or
other assets (including pursuant to any Sale and Leaseback Transactions) other
than sales of assets acquired and held for resale in the ordinary course of
business, (iv) for purposes of Section 1010 only, the net income, if positive,
of any Restricted Subsidiary to the extent that the declaration or payment of
dividends or similar distributions by such Restricted Subsidiary of such net
income is not at that time permitted by the operation of the terms of its
charter or any agreement, instrument, judgment, decree, order,
5
<PAGE> 13
statute, rule or governmental regulations applicable to such Restricted
Subsidiary, (v) all extraordinary gains and extraordinary losses and (vi) the
cumulative effect of a change in accounting principles.
"Corporate Trust Office" means the principal office of the Trustee at
601 South Figueroa Street, 49th Floor, Los Angeles, California 90017 at which at
any particular time its corporate trust business shall be administered, or its
operations center in Chicago, Illinois, or such other location designated by the
Trustee in a report pursuant to Section 703(a).
"Credit Facility" means, collectively, that certain Loan Agreement dated
as of June 26, 1998, by and among VoiceStream PCS Holding L.L.C., a Delaware
limited liability company (as successor to Western PCS Holding Corporation),
Toronto Dominion (Texas), Inc., as administrative agent, and the agents and
lenders named therein, and such additional loan or credit facilities now or
hereafter existing among the Company or a Restricted Subsidiary of the Company
and one or more equipment vendors or lending groups consisting principally of
banks or other financial institutions, in each case as such agreements in whole
or in part, may be amended, renewed, extended, substituted, refinanced,
restructured, replaced, supplemented or otherwise modified, in whole or in part,
from time to time (including, without limitation, any successive renewals,
extensions, substitutions, refinancings, restructurings, replacements,
supplementations or other modifications of the foregoing) to which the Company
or any Restricted Subsidiary is a party including to increase the commitments
thereunder or to add or eliminate borrowers or guarantors thereunder; PROVIDED
that any such substitution, refinancing, restructuring or replacement shall be
pursuant to one or more agreements with equipment vendors or lending groups
consisting principally of banks or other financial institutions.
"Cumulative Interest Expense" means the total amount of Consolidated
Interest Expense of the Company and its Restricted Subsidiaries for the period
beginning on January 1, 2001 through and including the end of the last fiscal
quarter preceding the date of any proposed Restricted Payment for which
financial statements have been delivered to the Trustee.
"Cumulative Operating Cash Flow" means Operating Cash Flow of the
Company and its Restricted Subsidiaries for the period beginning on January 1,
2001 through and including the end of the last fiscal quarter preceding the date
of any proposed Restricted Payment for which financial statements have been
delivered to the Trustee.
"Debenture Exchange and Registration Rights Agreement" means the
Debenture Exchange and Registration Rights Agreement, dated as of the date
hereof, between the Company and the Initial Purchaser, as such agreement may be
amended, supplemented or otherwise modified from time to time.
"Debenture Issue Date" means the time and date of the first issuance of
a Security hereunder.
"Debt Offering" means a bona fide public offering or private placement
by the Company to Persons other than Affiliated Holders pursuant to an indenture
or purchase agreement,
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<PAGE> 14
(including an offering to be made pursuant to Rule 144A, but excluding any
Credit Facility) of any high yield notes or other high yield debt securities, in
each case which are Pari Passu with the Securities, yielding net proceeds to the
Company of at least $150 million.
"Debt Securities" means those securities issued pursuant to a Debt
Offering.
"Defaulted Interest" has the meaning specified in Section 308.
"Depositary" means a clearing agency registered under the Exchange Act
that is designated to act as Depositary for the Securities until a successor
Depositary shall have become such pursuant to the applicable provisions of this
Indenture, and thereafter "Depositary" shall mean such successor Depositary. The
Depositary will initially be DTC.
"Designated Senior Indebtedness" means Indebtedness under any Credit
Facility.
"Distribution Compliance Period" means the period through and including
the 40th day after the later of (i) the Debenture Issue Date and (ii) the
commencement of the offering of Original Securities pursuant to the Purchase
Agreement.
"DTC" means The Depository Trust Company, a New York corporation.
"Exchange Offer" means an offer made pursuant to an effective
registration statement under the Securities Act by the Company to exchange
securities substantially identical to Outstanding Securities (except for the
differences provided for herein) for Exchange Securities.
"Exchange Registration Statement" means a registration statement of the
Company under the Securities Act registering Exchange Securities for
distribution pursuant to the Exchange Offer.
"Exchange Securities" means the Securities of the Company designated as
such in the first paragraph of the recitals, all of which are to be issued
pursuant to the Exchange Offer or sold pursuant to the Resale Registration
Statement and their Successor Securities.
"Euroclear" means the Euroclear Clearance System (or any successor
securities clearing agency).
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" refers to the Securities Exchange Act of 1934, as
amended.
"Expiration Date" has the meaning specified in the definition of Offer
to Purchase.
"Fair Market Value" means, with respect to any assets or Person, the
price which could be negotiated in an arm's-length free market transaction, for
cash, between a willing seller and a willing buyer, neither of whom is under
undue pressure or compulsion to complete the transaction. Fair Market Value will
be determined (i) if such Person or assets have a Fair Market Value not in
excess of $5 million, by any officer of the Company and evidenced by an
Officers'
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<PAGE> 15
Certificate, dated within 30 days of the relevant transaction, (ii) if such
Person or assets has a Fair Market Value of $5 million or more but less than $25
million, by a majority of the Board of Directors of the Company and evidenced by
a Board Resolution, dated within 30 days of the relevant transaction, and (iii)
if such Person or assets has a Fair Market Value of $25 million or more, by a
majority of the Board of Directors of the Company and evidenced by a Board
Resolution, dated within 30 days of the relevant transaction, based on an
appraisal of an independent appraiser of national reputation.
"GAAP" means generally accepted accounting principles in the United
States of America as in effect from time to time, including those set forth in
(i) the opinions and pronouncements of the Accounting Principles Board of the
American Institute of Certified Public Accountants, (ii) statements and
pronouncements of the Financial Accounting Standards Board, (iii) such other
statements by such other entity as approved by a significant segment of the
accounting profession and (iv) the rules and regulations of the Commission
governing the inclusion of financial statements (including pro forma financial
statements) in periodic reports required to be filed pursuant to Section 13 of
the Exchange Act, including opinions and pronouncements in staff accounting
bulletins and similar written statements from the accounting staff of the
Commission. All ratios and computations based on GAAP contained in this
Indenture shall be computed in conformity with GAAP.
"Global Securities" has the meaning set forth in Section 201.
"Guarantee" means any obligation, contingent or otherwise, of any Person
directly or indirectly guaranteeing any Indebtedness of any other Person and any
obligation, direct or indirect, contingent or otherwise, of such Person (i) to
purchase or pay (or advance or supply funds for the purchase or payment of) such
Indebtedness of such other Person or (ii) entered into for the purpose of
assuring in any other manner the obligee of such Indebtedness of the payment
thereof or to protect such obligee against loss in respect thereof (in whole or
in part); PROVIDED, HOWEVER, that the term "Guarantee" shall not include
endorsements for collection or deposit in the ordinary course of business. The
term "Guarantee" used as a verb has a corresponding meaning.
"Holder" means a Person in whose name a Security is registered in the
Security Register.
"Incur" means, with respect to any Indebtedness or other obligation of
any Person, to create, issue, incur (by conversion, exchange or otherwise),
assume, Guarantee or otherwise become liable in respect of such Indebtedness or
other obligation or the recording, as required pursuant to generally accepted
accounting principles or otherwise, of any such Indebtedness or other obligation
on the balance sheet of such Person (and "Incurrence," "Incurred," "Incurrable"
and "Incurring" shall have meanings correlative to the foregoing); PROVIDED,
HOWEVER, that a change in generally accepted accounting principles that results
in an obligation of such Person that exists at such time becoming Indebtedness
shall not be deemed an Incurrence of such Indebtedness.
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<PAGE> 16
"Indebtedness" means (without duplication), with respect to any Person,
whether recourse is to all or a portion of the assets of such Person and whether
or not contingent, (i) every obligation of such Person for money borrowed, (ii)
every obligation of such Person evidenced by bonds, debentures, notes or similar
instruments, including obligations Incurred under receivables or factoring
facilities, (iii) every reimbursement obligation of such Person with respect to
letters of credit, bankers' acceptances or similar facilities issued for the
account of such Person, (iv) every obligation of such Person issued or assumed
as the deferred purchase price of property or services (but excluding trade
accounts payable or accrued liabilities arising in the ordinary course of
business on customary terms), (v) every Capital Lease Obligation of such Person,
(vi) the maximum fixed redemption or repurchase price of Redeemable Stock of
such Person at the time of determination, (vii) every obligation to pay rent or
other payment amounts of such Person with respect to any Sale and Leaseback
Transaction to which such Person is a party, (viii) all obligations under
Interest Hedge Agreements, (ix) every obligation of the type referred to in
Clauses (i) through (viii) of another Person and all dividends of another Person
the payment of which, in either case, such Person has Guaranteed or is
responsible or liable, directly or indirectly, as obligor, guarantor or
otherwise or which is secured by a Lien on any asset of such Person and (x) the
liquidation value of Preferred Stock of a Subsidiary of such Person issued and
outstanding and held by other than such Person (or one of its Wholly Owned
Restricted Subsidiaries); PROVIDED that for all purposes of this Indenture, (A)
the amount outstanding at any time of (1) any Indebtedness issued with original
issue discount is the face amount of such Indebtedness less the unamortized
portion of the original issue discount of such Indebtedness at the time of its
issuance as determined in conformity with GAAP, (2) any Guarantee or other
contingent obligation is the maximum liability of such Person thereunder, (3)
any Indebtedness that is not recourse to such Person except the assets securing
such Indebtedness is the lesser of (x) the Fair Market Value of such assets and
(y) the amount of the Indebtedness, (4) obligations under an Interest Hedge
Agreement that is designed solely to protect the Company or its Restricted
Subsidiaries against fluctuations in interest rates with respect to their
respective outstanding Indebtedness shall be considered to be Indebtedness only
to the extent that such Interest Hedging Agreement may increase the amount of
Indebtedness of the Company or any of its Restricted Subsidiaries other than as
a result of fluctuations in interest rates or by reason of fees, and (5) any
other Indebtedness is the principal amount thereof, together with any interest
thereon that is more than 30 days past due, (B) money borrowed at the time of
the Incurrence of any Indebtedness in order to pre-fund the payment of interest
on such Indebtedness shall be deemed not to be "Indebtedness" to the extent of
the amounts held in an escrow or similar account to be held for the benefit of
or to be paid to the relevant lender as interest or its equivalent and (C)
Indebtedness shall not include any liability for federal, state, local or other
taxes. For purposes of clauses (vi) and (x) above, the "maximum fixed redemption
or repurchase price" of any Redeemable Stock that does not have a fixed
redemption or repurchase price shall be calculated in accordance with the terms
of such Redeemable Stock as if such Redeemable Stock were purchased or redeemed
on any date on which Indebtedness shall be required to be determined pursuant to
the Indenture, and if such price is based upon, or measured by, the fair market
value of such Redeemable Stock (or any equity security for which it may be
exchanged or converted), such fair market value shall be determined in good
faith by the Board of Directors of such Person, which determination shall be
evidenced by a Board Resolution.
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<PAGE> 17
"Indenture" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof.
"Initial Purchaser" means Nortel Networks Inc.
"Initial Regulation S Securities" means the Securities, if any, sold by
the Initial Purchaser in the initial offering contemplated by the Purchase
Agreement in reliance on Regulation S.
"Interest Hedge Agreements" means any interest rate swap, cap, collar,
floor, caption or swaption agreements, or any similar arrangements designed to
hedge the risk of variable interest rate volatility or to reduce interest costs,
arising at any time between the Company or any Restricted Subsidiary, on the one
hand, and any Person (other than an Affiliate of the Company or any Restricted
Subsidiary), on the other hand, as such agreement or arrangement may be
modified, supplemented and in effect from time to time.
"Interest Payment Date" means the Stated Maturity of an installment of
interest on the Securities.
"Investment" by any Person in any other Person means (without
duplication): (a) the acquisition (whether by purchase, merger, consolidation or
otherwise) by such Person (whether for cash, property, services, securities or
otherwise) of capital stock, bonds, notes, debentures, partnership, limited
liability company or other ownership interests or other securities of such other
Person or any agreement to make any such acquisition; (b) the making by such
Person of any deposit with, or advance, loan or other extension of credit to,
such other Person (including the purchase of property from another Person
subject to an understanding or agreement, contingent or otherwise, to resell
such property to such other Person) or any commitment to make any such advance,
loan or extension; (c) the entering into by such Person of any Guarantee of, or
other contingent obligation with respect to, Indebtedness or other liability of
such other Person; (d) the making of any capital contribution by such Person to
such other Person; and (e) the designation by the Board of Directors of the
Company of any Person to be an Unrestricted Subsidiary. For purposes of this
Indenture, (i) "Investment" shall include and be valued at the Fair Market Value
of such Person's PRO RATA interest in the net assets of any Restricted
Subsidiary at the time that such Restricted Subsidiary is designated an
Unrestricted Subsidiary and shall exclude the lesser of (A) the Fair Market
Value of such Person's PRO RATA interest in the net assets of any Unrestricted
Subsidiary at the time that such Unrestricted Subsidiary is designated a
Restricted Subsidiary and (B) the Fair Market Value of the amount of such
Person's Investments (other than Permitted Investments) at the time deemed to be
made in (net of cash distributions received from) such Unrestricted Subsidiary
since the date of this Indenture, and (ii) the amount of any Investment shall be
the Fair Market Value of such Investment at the time any such Investment is
made.
"Leverage Ratio" of any Person on any date (for purposes of this
definition, the "Transaction Date") means, with respect to any Person and its
Restricted Subsidiaries, the ratio of (i) Consolidated Indebtedness of such
Person and its Restricted Subsidiaries on the
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<PAGE> 18
Transaction Date (after giving pro forma effect to the Incurrence of any
Indebtedness on such Transaction Date) to (ii) the aggregate amount of
Annualized Operating Cash Flow of such Person for the Reference Period
(determined on a pro forma basis after giving effect to all acquisitions and
dispositions of businesses made by such Person and its Restricted Subsidiaries
from the beginning of the Reference Period through the Transaction Date as if
such acquisitions and dispositions had occurred at the beginning of such
Reference Period); PROVIDED, that for purposes of such computation, in
calculating Annualized Operating Cash Flow and Consolidated Indebtedness: (a)
the transaction giving rise to the need to calculate the Leverage Ratio will be
assumed to have occurred (on a pro forma basis) on the first day of the
Reference Period; (b) all members of the consolidated group of such Person on
the Transaction Date that were acquired during the Reference Period shall be
deemed to be members of the consolidated group of such Person for the entire
Reference Period; and (c) the Indebtedness and Annualized Operating Cash Flow of
any Restricted Subsidiary that is not a Wholly Owned Restricted Subsidiary shall
be determined in accordance with the actual percentage of the Person's common
equity interest in such Restricted Subsidiary on the date of determination of
the Leverage Ratio (thus, for example, in the case of a Restricted Subsidiary in
which such Person owns a 51% common equity interest, 51% of such Subsidiary's
Indebtedness and of such Subsidiary's Annualized Operating Cash Flow would be
included in the calculation of such Person's aggregate Indebtedness and
Annualized Operating Cash Flow, respectively). When the foregoing definition is
used in connection with the Company and its Restricted Subsidiaries, references
to a Person and its Restricted Subsidiaries in the foregoing definition shall be
deemed to refer to the Company and its Restricted Subsidiaries.
"License" means any license relating to Telecommunications Businesses of
the referent Person or any of its Restricted Subsidiaries granted by the Federal
Communications Commission that entitles the holder to use the radio channels
covered thereby, subject to compliance with applicable rules and regulations, in
connection with such Telecommunications Businesses.
"Lien" means, with respect to any property or assets, any mortgage or
deed of trust, pledge, hypothecation, assignment, deposit arrangement, security
interest, lien, charge, easement (other than any easement not materially
impairing usefulness or marketability), encumbrance, preference, priority or
other security agreement or preferential arrangement of any kind or nature
whatsoever on or with respect to such property or assets (including, without
limitation, any conditional sale or other title retention agreement having
substantially the same economic effect as any of the foregoing).
"Maturity" means, when used with respect to any Security, the date on
which the principal of such Security becomes due and payable as therein or
herein provided, whether at the Stated Maturity or by declaration of
acceleration, call for redemption or otherwise.
"Net Cash Proceeds" means the aggregate amount of cash and Cash
Equivalents received by the Company and its Restricted Subsidiaries in respect
of an Asset Sale (including upon the conversion to cash and Cash Equivalents of
(a) any note or installment receivable at any time or (b) any other property as
and when any cash and Cash Equivalents are
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<PAGE> 19
received in respect of any property received in an Asset Sale but only to the
extent such cash and Cash Equivalents are received within one year after such
Asset Sale), less the sum of all reasonable out-of-pocket fees, commissions and
other expenses incurred in connection with such Asset Sale, including the amount
(estimated in good faith by the Board of Directors of the Company) of income,
franchise, sales and other applicable taxes required to be paid by the Company
or any Restricted Subsidiary of the Company in connection with such Asset Sale.
"Non-Recourse Debt" means Indebtedness: (a) as to which neither the
Company nor any of its Restricted Subsidiaries (i) provides credit support of
any kind (including any Guarantee, undertaking, agreement or instrument that
would constitute Indebtedness but excluding any pledge of Capital Stock
permitted under Section 1012); or (ii) is directly or indirectly liable (as a
guarantor or otherwise); or (iii) constitutes the lender; (b) no default with
respect to which (including any rights that the holders thereof may have to take
enforcement action against any Unrestricted Subsidiary) would permit (upon
notice, lapse of time or both) any holder of any other Indebtedness of the
Company or any of its Restricted Subsidiaries to declare a default on such other
Indebtedness or cause the payment thereof to be accelerated or payable before
its stated maturity; and (c) the holders of which have been notified in writing
that they will not have any recourse to the stock or assets of the Company or
any of its Restricted Subsidiaries (except as expressly permitted under Section
1012).
"Notice of Default" has the meaning specified in Section 501.
"Offer" has the meaning specified in the definition of Offer to
Purchase.
"Offer to Purchase" means a written offer (the "Offer") sent by the
Company to each Holder at his address appearing in the Security Register on the
date of the Offer offering to purchase up to the principal amount of Securities
specified in such Offer at the purchase price specified in such Offer (as
determined pursuant to this Indenture). Unless otherwise required by applicable
law, the Offer shall specify an expiration date (the "Expiration Date") of the
Offer to Purchase which, subject to any contrary requirements of applicable law,
shall be not less than 30 days nor more than 60 days after the date of such
Offer to Purchase and a settlement date (the "Purchase Date") for purchase of
Securities within 5 Business Days after the Expiration Date. The Company shall
notify the Trustee at least 15 Business Days (or such shorter period as is
acceptable to the Trustee) prior to the mailing of the Offer of the Company's
obligation to make an Offer to Purchase, and the Offer shall be mailed by the
Company or, at the Company's request, by the Trustee in the name and at the
expense of the Company. The Offer shall contain information concerning the
business of the Company and its Subsidiaries which the Company in good faith
believes will enable such Holders to make an informed decision with respect to
the Offer to Purchase (which at a minimum will include (i) the most recent
annual and quarterly financial statements and "Management's Discussion and
Analysis of Financial Condition and Results of Operations" contained in the
documents required to be filed with the Trustee pursuant to Section 1019 (which
requirements may be satisfied by delivery of such documents together with the
Offer), (ii) a description of material developments in the Company's business
subsequent to the date of the latest of such financial statements referred to in
Clause (i) (including a description of the events requiring the Company to make
the Offer to Purchase), (iii) if applicable, appropriate pro forma financial
information concerning the Offer to
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<PAGE> 20
Purchase and the events requiring the Company to make the Offer to Purchase and
(iv) any other information required by applicable law to be included therein.
The Offer shall contain all instructions and materials necessary to enable such
Holders to tender Securities pursuant to the Offer to Purchase. The Offer shall
also state:
(1) the Section of this Indenture pursuant to which the
Offer to Purchase is being made;
(2) the Expiration Date and the Purchase Date;
(3) the aggregate principal amount of the Outstanding
Securities offered to be purchased by the Company pursuant to the Offer
to Purchase (including, if less than 100%, the manner by which such has
been determined pursuant to the Section hereof requiring the Offer to
Purchase) (the "Purchase Amount");
(4) the purchase price to be paid by the Company for each
$1,000 aggregate principal amount of Securities accepted for payment (as
specified pursuant to this Indenture) (the "Purchase Price");
(5) that the Holder may tender all or any portion of the
Securities registered in the name of such Holder and that any portion of
a Security tendered must be tendered in an integral multiple of $1,000
principal amount;
(6) the place or places where Securities are to be
surrendered for tender pursuant to the Offer to Purchase;
(7) that on the Purchase Date the Purchase Price will become
due and payable upon each Security accepted for payment pursuant to the
Offer to Purchase and that interest thereon shall cease to accrue on and
after the Purchase Date;
(8) that each Holder electing to tender a Security pursuant
to the Offer to Purchase will be required to surrender such Security at
the place or places specified in the Offer prior to the close of
business on the Expiration Date (such Security being, if the Company or
the Trustee so requires, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Company and the
Trustee duly executed by, the Holder thereof or his attorney duly
authorized in writing);
(9) that Holders will be entitled to withdraw all or any
portion of Securities tendered if the Company (or its Paying Agent)
receives, not later than the close of business on the Expiration Date, a
telegram, telex, facsimile transmission or letter setting forth the name
of the Holder, the principal amount of the Security the Holder tendered,
the certificate number of the Security the Holder tendered and a
statement that such Holder is withdrawing all or a portion of his
tender;
(10) that (a) if Securities in an aggregate principal amount
less than or equal to the Purchase Amount are duly tendered and not
withdrawn pursuant to the Offer to
13
<PAGE> 21
Purchase, the Company shall purchase all such Securities and (b) if
Securities in an aggregate principal amount in excess of the Purchase
Amount are tendered and not withdrawn pursuant to the Offer to Purchase,
the Company shall purchase Securities having an aggregate principal
amount equal to the Purchase Amount on a pro rata basis (with such
adjustments as may be deemed appropriate so that only Securities in
denominations of $1,000 or integral multiples thereof shall be
purchased); and
(11) that in case of any Holder whose Security is purchased
only in part, the Company shall execute, and the Trustee shall
authenticate and deliver to the Holder of such Security without service
charge, a new Security or Securities, of any authorized denomination as
requested by such Holder, in an aggregate principal amount equal to and
in exchange for the unpurchased portion of the Security so tendered.
Any Offer to Purchase shall be governed by and effected in accordance with the
Offer for such Offer to Purchase.
"Officers' Certificate" means a certificate signed by two officers at
least one of whom shall be the Chairman of the Board, President, Vice President,
Treasurer, Assistant Treasurer, Secretary or Assistant Secretary of the Company
and delivered to the Trustee.
"Operating Cash Flow" for any Person for any period means (a) the
Consolidated Net Income of such Person for such period, plus (b) the sum,
without duplication (and only to the extent such amounts are deducted from net
revenues in determining such Consolidated Net Income), of (i) the provisions for
income taxes for such period for such Person and its Restricted Subsidiaries,
(ii) depreciation, amortization and other non-cash charges of such Person and
its Restricted Subsidiaries and (iii) Consolidated Interest Expense of such
Person for such period, determined, in each case, on a consolidated basis for
such Person and its Subsidiaries in accordance with GAAP, less (c) the sum,
without duplication (and only to the extent such amounts are included in such
Consolidated Net Income) of (i) all extraordinary gains of such Person and its
Subsidiaries during such period and (ii) the amount of all cash payments made
during such period by such Person and its Subsidiaries to the extent such
payments relate to non-cash charges that were added back in determining
Operating Cash Flow for such period or for any prior period, less (d) non-cash
credits increasing Consolidated Net Income for such period; and in the case of a
Restricted Subsidiary that is not a Wholly Owned Restricted Subsidiary, the
determination of the percentage of the Operating Cash Flow of such Restricted
Subsidiary that is to be included in the calculation of the Company's Leverage
Ratio shall be made on a pro forma basis on the assumption that the percentage
of the Company's common equity interest in such Restricted Subsidiary throughout
the applicable Reference Period was equivalent to its common equity interest on
the date of the determination. Notwithstanding the foregoing, for purposes of
Section 1010 only, the provision for income taxes and the depreciation,
amortization and other non-cash charges of a Subsidiary of the referent Person
shall be added to Consolidated Net Income to compute Operating Cash Flow only to
the extent that (and in same proportion as) the net income of such Subsidiary
was included in calculating the Consolidated Net Income of such Person and only
if a corresponding amount would be permitted at the date of determination to be
dividended to the Company by such Subsidiary without prior governmental approval
(that has
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<PAGE> 22
not been obtained), and without direct or indirect restriction pursuant to the
terms of its charter and all agreements, instruments, judgments, decrees,
orders, statutes, rules and regulations applicable to that Subsidiary or the
holders of its equity interests. When the foregoing definition is used in
connection with the Company, references to a Person and its Subsidiaries in the
foregoing definition shall be deemed to refer to the Company and its Restricted
Subsidiaries. For the purposes of Section 1010 only, the determination of the
percentage of the Operating Cash Flow of a Restricted Subsidiary that is not a
Wholly Owned Restricted Subsidiary that is to be included in the calculation of
the Company's Operating Cash Flow shall be made on a quarter by quarter basis
based on the percentage of the Company's common equity interest in such
Restricted Subsidiary on the last day of each quarter during the relevant
period.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Company, and who shall be reasonably acceptable to the Trustee,
delivered to the Trustee.
"Original Securities" means the Securities of the Company designated in
the first paragraph of the recitals.
"Outstanding," when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, EXCEPT:
(i) Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Trustee or any
Paying Agent (other than the Company) in trust or set aside and
segregated in trust by the Company (if the Company shall act as its own
Paying Agent) for the Holders of such Securities; PROVIDED that, if such
Securities are to be redeemed, notice of such redemption has been duly
given pursuant to this Indenture or provision therefor satisfactory to
the Trustee has been made; and
(iii) Securities which have been paid pursuant to Section 307
or in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any
such Securities in respect of which there shall have been presented to
the Trustee proof satisfactory to it that such Securities are held by a
bona fide purchaser in whose hands such Securities are valid obligations
of the Company;
PROVIDED, HOWEVER, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Securities owned
by the Company or any other obligor upon the Securities or any Affiliate of the
Company or of such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be protected
in relying upon any such request, demand, authorization, direction, notice,
consent or waiver, only Securities which the Trustee knows to be so owned shall
be so disregarded. Securities so owned which have been pledged in good faith may
be regarded as Outstanding if the pledgee
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<PAGE> 23
establishes to the satisfaction of the Trustee the pledgee's right so to act
with respect to such Securities and that the pledgee is not the Company or any
other obligor upon the Securities or any Affiliate of the Company or of such
other obligor.
"Pari Passu," when used with respect to the ranking of any Indebtedness
of any Person in relation to other Indebtedness of such Person, means that each
such Indebtedness (a) either (i) is not subordinated in right of Payment to any
other Indebtedness of such Person or (ii) is subordinate in right of payment to
the same Indebtedness of such Person as is the other and is so subordinate to
the same extent and (b) is not subordinate in right of payment to the other or
to any other Indebtedness of such Person as to which the other is not so
subordinate.
"Paying Agent" means any Person authorized by the Company to pay the
principal of (and premium, if any) or interest on any Securities on behalf of
the Company.
"Permitted Holder" has the meaning specified in Section 1016.
"Permitted Investments" means (i) Investments in Cash Equivalents; (ii)
Investments by the Company or a Restricted Subsidiary in the Company or a
Restricted Subsidiary of the Company; (iii) Investments in a Person
substantially all of whose assets are of a type generally used in a
Telecommunications Business (an "Acquired Person") if, as a result of such
Investments, (A) the Acquired Person immediately thereupon becomes a Restricted
Subsidiary of the Company or (B) the Acquired Person immediately thereupon
either (1) is merged or consolidated with or into the Company or any Restricted
Subsidiary of the Company or (2) transfers or conveys all or substantially all
of its assets to, or is liquidated into, the Company or any of its Restricted
Subsidiaries; (iv) Investments in accounts and notes receivable acquired in the
ordinary course of business; (v) advances and prepayments for asset purchases in
the ordinary course of business in a Telecommunications Business of the Company
or a Restricted Subsidiary; and (vi) customary loans or advances made in the
ordinary course of business to officers, directors or employees of the Company
or any of its Restricted Subsidiaries for travel, entertainment, and moving and
other relocation expenses; PROVIDED, that the matters referenced in clause (iii)
above shall not be Permitted Investments if made at any time that an Event of
Default or event which with notice or lapse of time or both would become an
Event of Default has occurred and is continuing; and PROVIDED FURTHER that, for
purposes of Section 1010 only, Investments shall exclude all Investments made
(since the date of this Indenture and treated as a Restricted Payment) in a
Person which thereafter qualify as Permitted Investments pursuant to clause
(iii) above, in each case valued at the lesser of (A) Fair Market Value at the
time such Investment is deemed to be a Permitted Investment and (B) Fair Market
Value of the amount of such Investment at the time deemed to be made (net of
cash or other distributions received therefrom or other amounts received in
respect thereof).
"Permitted Joint Venture" means, as applied to any Person, any
corporation or other entity (a) engaged in the acquisition, ownership, operation
and management of assets in the Telecommunications Business, (b) over which such
Person is responsible (either directly or through a services agreement) for
day-to-day operations or otherwise has a technical services or comparable
agreement that provides such Person with such rights, duties and obligations as
are
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substantially similar to those rights, duties and obligations of the Company (as
assignee of Western Wireless Corporation) under that certain Technical Services
Agreement dated July 30, 1996, as amended, with respect to Cook Inlet Western
Wireless PV/SS PCS, L.P., (c) of which more than forty percent (40%) of the
outstanding Capital Stock (other than directors' qualifying shares) having
ordinary Voting Power to elect its board of directors, regardless of the
existence at the time of a right of the holders of any class or classes of
securities of such corporation to exercise such Voting Power by reason of the
happening of any contingency, in the case of a corporation, or more than forty
percent (40%) of the outstanding ownership interests, in the case of an entity
other than a corporation, is at the time owned directly or indirectly by such
Person, or by one or more Subsidiaries of such Person, or by such Person and by
one or more Restricted Subsidiaries of such Person, and (d) that is formed
pursuant to an arms' length negotiation between such Person and the other
parties to such Permitted Joint Venture Investment that satisfies the
requirements of Section 1013, if applicable.
"Permitted Joint Venture Investment" means (i) any payment on account of
the purchase, redemption, retirement or acquisition of (A) any shares of Capital
Stock or other ownership interests of a Permitted Joint Venture or (B) any
option, warrant or other right to acquire shares of Capital Stock or ownership
interests of a Permitted Joint Venture or (ii) any loan, advance, lease, capital
contribution to, or Investment in, or payment of a Guarantee of any obligation
of a Permitted Joint Venture.
"Person" means any individual, corporation, partnership, joint venture,
trust, unincorporated organization or government or any agency or political
subdivision thereof.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 307 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"Preferred Stock" means, with respect to any Person, any and all shares
of Capital Stock of such Person that have preferential rights to any other
Capital Stock of such Person with respect to dividends or redemptions or upon
liquidation.
"Public Equity Offering" means an underwritten public offering of Common
Stock of the Company pursuant to an effective registration statement filed with
the Commission in accordance with the Securities Act with aggregate net proceeds
of not less than $100 million.
"Purchase Agreement" means the Purchase Agreement, dated as of the date
hereof, between the Company and the Initial Purchaser, as such agreement may be
amended. supplemented or otherwise modified from time to time.
"Purchase Amount" has the meaning specified in the definition of Offer
to Purchase.
"Purchase Date" has the meaning specified in the definition of Offer to
Purchase.
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"Purchase Price" has the meaning specified in the definition of Offer to
Purchase.
"Qualified Capital Stock" means, with respect to any Person, any and all
shares of Capital Stock other than Redeemable Stock issued by such Person after
the date of this Indenture.
"Qualified Capital Stock Proceeds" means, with respect to any Person,
(a) in the case of any issuance or sale of Qualified Capital Stock (other than
to a Subsidiary of such Person or an employee stock ownership plan or to a trust
established by the Company or any of its Subsidiaries for the benefit of any of
their employees), the aggregate cash proceeds received by such Person, net of
attorneys' fees, accountants' fees, underwriters' or placement agents' fees,
discounts or commissions and brokerage, consultant and other fees Incurred by
such Person or any of its Subsidiaries in connection with such issuance or sale;
and (b) in the case of any exchange, exercise, conversion or surrender of any
Redeemable Stock or Indebtedness of such Person issued (other than to any
Subsidiary) for cash after the Debenture Issue Date for or into shares of
Qualified Capital Stock of such Person, the liquidation value of the Redeemable
Stock or the net book value of such Indebtedness as adjusted on the books of
such Person to the date of such exchange, exercise, conversion or surrender,
plus (y) any additional amount paid by the securityholders to such Person upon
such exchange, exercise, conversion or surrender and less (z) any and all
payments made to the securityholders, and all attorneys' fees, accountants'
fees, underwriters' or placement agents' fees, discounts or commissions and
brokerage, consultant and other fees Incurred by such Person or any of its
Subsidiaries in connection therewith.
"Qualifying Event" means any Public Equity Offering or any Strategic
Equity Investment.
"Redeemable Stock" of any Person means any equity security of such
Person that by its terms or otherwise is required to be redeemed prior to the
final Stated Maturity of the Securities or is redeemable at the option of the
holder thereof at any time prior to the final Stated Maturity of the Securities;
PROVIDED that any Capital Stock that would not constitute Redeemable Stock but
for provisions thereof giving holders thereof the right to require such Person
to repurchase or redeem such Capital Stock upon the occurrence of a "change of
control" occurring prior to the final Stated Maturity of the Securities shall
not constitute Redeemable Stock if the "change of control" provisions applicable
to such Capital Stock taken as a whole are no more favorable to the holders of
such Capital Stock than the provisions contained in Section 1016 of this
Indenture (and in any event provide no greater premium than the provisions
contained in Section 1016 of this Indenture) and such Capital Stock specifically
provides that such Person will not repurchase or redeem any such stock pursuant
to such provisions prior to the Company's repurchase of such Securities as are
required to be repurchased pursuant to Section 1016.
"Redemption Date" when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"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.
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"Reference Period" with regard to any Person means the last two full
fiscal quarters of such Person immediately preceding any date upon which any
determination is to be made pursuant to the terms of the Securities or this
Indenture for which financial statements have been delivered to the Trustee.
"Refinance" means, in respect of any Indebtedness, to refinance, extend,
renew, refund, repay, prepay, redeem, defease or retire, or to issue other
Indebtedness in exchange or replacement for, such Indebtedness. "Refinanced" and
"Refinancing" shall have correlative meanings.
"Refinancing Indebtedness" means Indebtedness that Refinances any
Indebtedness of the Company or any Restricted Subsidiary existing on the
Debenture Issue Date or Incurred in compliance with this Indenture, including
Indebtedness that Refinances Refinancing Indebtedness; PROVIDED, HOWEVER, that
(i) such Refinancing Indebtedness has a final maturity no earlier than the final
maturity of the Indebtedness being Refinanced, (ii) such Refinancing
Indebtedness has an Average Life at the time such Refinancing Indebtedness is
Incurred that is equal to or greater than the Average Life of the Indebtedness
being Refinanced and (iii) such Refinancing Indebtedness has an aggregate
principal amount (or if Incurred with original issue discount, an aggregate
issue price) that is equal to or less than the aggregate principal amount (or if
Incurred with original issue discount, the aggregate accreted value) then
outstanding or committed (plus accrued interest on the principal amount of
Indebtedness Refinanced, and fees and expenses, including any premium and
defeasance costs) under the Indebtedness being Refinanced; PROVIDED FURTHER,
HOWEVER, that Refinancing Indebtedness shall not include (x) Indebtedness of a
Subsidiary that Refinances Indebtedness of the Company (unless such Subsidiary
was obligated under, or a guarantor of, the Indebtedness being Refinanced) or
(y) Indebtedness of the Company or a Restricted Subsidiary that Refinances
Indebtedness of an Unrestricted Subsidiary.
"Registered Securities" means the Exchange Securities and all other
Securities sold or otherwise disposed of pursuant to an effective registration
statement under the Securities Act, together with their respective Successor
Securities.
"Regular Record Date" for the interest payable on any Interest Payment
Date means the May 1 or November 1 (whether or not a Business Day), as the case
may be, next preceding such Interest Payment Date.
"Regulation S" means Regulation S under the Securities Act (or any
successor provision), as it may be amended from time to time.
"Regulation S Global Security" has the meaning specified in Section 201.
"Related Person" of any Person means any other Person owning (a) 5% or
more of the outstanding Common Stock of such Person or (b) 5% or more of the
Voting Power of such Person.
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"Resale Registration Statement" means a shelf registration statement
under the Securities Act filed by the Company, if required by, and meeting the
requirements of, the Notes Exchange and Registration Rights Agreement,
registering the Original Securities for resale.
"Restricted Global Security" has the meaning specified in Section 201.
"Restricted Payments" means, with respect to any Person, (i) any
declaration or payment of a dividend or other distribution of any sort on any
shares of Capital Stock of such Person or any Restricted Subsidiary of such
Person (including any payment in connection with any merger or consolidation
involving such Person or any of its Restricted Subsidiaries, but excluding (A) a
dividend or other distribution payable solely in shares of Qualified Capital
Stock of such Person or options, warrants or other rights to acquire Qualified
Capital Stock of such Person and (B) any declaration or payment of a dividend or
other distribution by a Restricted Subsidiary to the Company or another
Restricted Subsidiary), (ii) any payment on the account of the purchase,
redemption, retirement or acquisition (including by way of issuing any
Indebtedness or Redeemable Stock in exchange for Capital Stock) of (A) any
shares of Capital Stock of such Person or any Restricted Subsidiary of such
Person (including, in the case of a Restricted Subsidiary, Capital Stock of the
Company) held by other than such Person or any of its Restricted Subsidiaries or
(B) any option, warrant or other right to acquire shares of Capital Stock of
such Person or any Restricted Subsidiary of such Person held by a Person other
than such Person or any of its Restricted Subsidiaries (including, in the case
of a Restricted Subsidiary, any option, warrant or other right to acquire shares
of Capital Stock of the Company), in each case other than pursuant to the
cashless exercise of options or pursuant to the acquisition by the Company or
any Restricted Subsidiary of the Company of Capital Stock of a Restricted
Subsidiary of the Company not owned by the Company or another Restricted
Subsidiary for a price not greater than the Fair Market Value of such Capital
Stock, (iii) any Investment (other than a Permitted Investment) made by such
Person and (iv) any redemption, defeasance, purchase, repurchase or other
acquisition or retirement for value prior to any scheduled maturity, scheduled
repayment or scheduled sinking fund payment, of any Subordinated Indebtedness of
such Person (other than the purchase, repurchase, or other acquisition of
Subordinated Indebtedness purchased in anticipation of satisfying a sinking fund
obligation, principal installment or final maturity, in each case due within one
year of the date of acquisition); PROVIDED, that the term "Restricted Payment"
does not include the payment of a dividend or other distribution by any
Restricted Subsidiary on shares of its Capital Stock that is paid pro rata to
all holders of such Capital Stock.
"Restricted Subsidiary" of any Person means any Subsidiary of such
Person other than an Unrestricted Subsidiary.
"Rule 144" means Rule 144 under the Securities Act (or any successor
provision) as it may be amended from time to time.
"Rule 144A" means Rule 144A under the Securities Act (or any successor
provision), as it may be amended from time to time.
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"Rule 144A Securities" means the Securities purchased by the Initial
Purchaser from the Company pursuant to the Purchase Agreement, other than the
Initial Regulation S Securities.
"Sale and Leaseback Transaction" of any Person means an arrangement with
any lender or investor or to which such lender or investor is a party providing
for the leasing by such Person of any property or asset of such Person which has
been or is being sold or transferred by such Person more than 270 days after the
acquisition thereof or the completion of construction or commencement of
operation thereof to such lender or investor or to any person to whom funds have
been or are to be advanced by such lender or investor on the security of such
property or asset. The stated maturity of such arrangement shall be the date of
the last payment of rent or any other amount due under such arrangement prior to
the first date on which such arrangement may be terminated by the lessee without
payment of a penalty.
"Securities" means securities designated in the first paragraph of the
recitals of the Company and includes the Exchange Securities.
"Securities Act" means the Securities Act of 1933, as amended.
"Securities Act Legend" means a legend substantially in the form of the
legend required in the form of Security set forth in Section 202 to be placed
upon a Rule 144A Security or an Initial Regulation S Security.
"Security Registrar" and "Security Register" have the respective
meanings specified in Section 306.
"Special Interest" has the meaning specified in the form of the
Securities set forth in Section 202.
"Stated Maturity," when used with respect to any Security or any
installment of interest thereon, means the date specified in such Security as
the date on which the principal of such Security or such installment of interest
is due and payable.
"Step-Down Date" has the meaning specified in the form of the Securities
set forth in Section 202.
"Step-Up" has the meaning specified in the form of the Securities set
forth in Section 202.
"Strategic Equity Investment" means an investment in Qualified Capital
Stock of the Company made by a Strategic Investor in an aggregate amount of not
less than $100 million.
"Strategic Investor" means a Person (other than an Affiliate of the
Company or a Person who by virtue of such Investment becomes such an Affiliate)
engaged in one or more Telecommunications Businesses with an equity market
capitalization at the time such Person makes a Strategic Equity Investment in
the Company in excess of $2 billion.
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"Subordinated Indebtedness" means Indebtedness of the Company that is
subordinated in right of payment to the Securities.
"Subsidiary" of any Person means (i) any corporation of which more than
fifty percent (50%) of the outstanding Capital Stock (other than directors'
qualifying shares) having ordinary Voting Power to elect its board of directors,
regardless of the existence at the time of a right of the holders of any class
or classes of securities of such corporation to exercise such Voting Power by
reason of the happening of any contingency, or any entity other than a
corporation of which more than fifty percent (50%) of the outstanding ownership
interests, is at the time owned directly or indirectly by such Person, or by one
or more Subsidiaries of such Person, or by such Person and one or more
Subsidiaries of such Person, or (ii) any other entity which is directly or
indirectly controlled or capable of being controlled by such Person, or by one
or more Subsidiaries of such Person, or by such Person and one or more
Subsidiaries of such Person.
"Successor Company" has the meaning specified in Section 801.
"Successor Security" of any particular Security means every Security
issued after, and evidencing all or a portion of the same debt as that evidenced
by, such particular Security; and, for the purposes of this definition, any
Security authenticated and delivered under Section 307 in exchange for or in
lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Security.
"Telecommunications Business" means the business of (i) transmitting, or
providing services relating to the transmission of, voice, video or data through
owned or leased wireline or wireless transmission facilities, (ii) creating,
developing, constructing, installing, repairing, maintaining or marketing
communications-related systems, network equipment and facilities, software and
other products, or (iii) evaluating, owning, operating, participating in or
pursuing any other business that is primarily related to those identified in
Clause (i) or (ii) above (in the case of this Clause (iii), however, in a manner
consistent with the Company's manner of business on the date of this Indenture),
and shall, in any event, include all businesses in which the Company or any of
its Subsidiaries is engaged on the date of this Indenture or has entered into
agreements to engage in or to acquire a company to engage in or contemplate
engaging in, as expressly set forth in the Company's Form 10/A filed with the
Commission on April 13, 1999; PROVIDED that the determination of what
constitutes a Telecommunications Business shall be made in good faith by the
Company's Board of Directors.
"Total Invested Capital" means at any time of determination, the sum of,
without duplication, (i) $1.4 billion, plus (ii) the aggregate net cash proceeds
and the aggregate net Fair Market Value of property other than cash received by
the Company from the issuance or sale of Qualified Capital Stock including
Qualified Capital Stock of the Company issued upon the conversion of convertible
debt or from the exercise of options, warrants or rights to purchase Qualified
Capital Stock subsequent to the Debenture Issue Date (other than to a Subsidiary
of the Company or an employee stock ownership plan or to a trust established by
the Company or any of its Subsidiaries for the benefit of any of their
employees); plus (iii) the aggregate net cash proceeds received by the Company
or any Restricted Subsidiary of the Company from the sale,
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disposition or repayment of any Investment made after the Debenture Issue Date,
and constituting a Restricted Payment in an amount equal to the lesser of (a)
the return of capital with respect to such Investment and (b) the amount of such
Investment made, in either case, less the cost of the disposition of such
Investment, net of taxes, plus (iv) an amount equal to the consolidated net
Investment (as of the date of determination) the Company and/or any of the
Restricted Subsidiaries of the Company has made in any Subsidiary that has been
designated as an Unrestricted Subsidiary after the Debenture Issue Date, upon
its redesignation as a Restricted Subsidiary in accordance with Section 1010,
plus (v) Consolidated Indebtedness minus (vi) the aggregate amount of all
Restricted Payments declared or made on or after the Debenture Issue Date.
"Treasury Rate" means, as of any Redemption Date, the yield to maturity
as of such Redemption Date of United States Treasury securities with a constant
maturity (as compiled and published in the most recent Federal Reserve
Statistical Release H.15 (519) that has become publicly available at least two
Business Days prior to the Redemption Date (or, if such Statistical Release is
no longer published, any publicly available source of similar market data)) most
nearly equal to the period from the Redemption Date to May 15, 2004; PROVIDED,
HOWEVER, that if the period from the Redemption Date to May 15, 2004 is less
than one year, the weekly average yield on actually traded United States
Treasury securities adjusted to a constant maturity of one year shall be used.
"Triggering Event" has the meaning specified in the form of the
Securities set forth in Section 202.
"Trustee" means the Person named as the "Trustee" in the first paragraph
of this instrument until a successor Trustee shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Trustee" shall mean
such successor Trustee.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force
at the date as of which this instrument was executed, except as provided in
Section 905; PROVIDED, HOWEVER, that in the event the Trust Indenture Act of
1939 is amended after such date, "Trust Indenture Act" means, to the extent
required by any such amendment, the Trust Indenture Act of 1939 as so amended.
"U.S. Government Obligations" has the meaning specified in Section 1204.
"Unrestricted Subsidiary" of any Person means (i) any Subsidiary of such
Person that at the time of determination shall be designated an Unrestricted
Subsidiary by the Board of Directors of such Person in the manner provided below
and (ii) any Subsidiary of an Unrestricted Subsidiary. The Board of Directors of
any Person may designate any Restricted Subsidiary to be an Unrestricted
Subsidiary unless such Subsidiary owns any Capital Stock of, or owns or holds
any Lien on any property of, such Person or any Restricted Subsidiary; PROVIDED
that either (A) the Subsidiary to be so designated has total assets of $1,000 or
less or (B) if such Subsidiary has assets greater than $1,000, such Person's PRO
RATA interest in the Fair Market Value of the net assets of such Subsidiary at
the time of such designation would be permitted as an Investment
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<PAGE> 31
under Section 1010. The Board of Directors of any Person may designate any
Unrestricted Subsidiary to be a Restricted Subsidiary of such Person, PROVIDED
that immediately after giving effect to such designation (x) such Person would
be permitted to Incur $1.00 of additional Indebtedness pursuant to the first
paragraph of Section 1008 and (y) no Event of Default or event which with notice
or lapse of time or both would become an Event of Default has occurred and is
continuing. Any such designation by the Board of Directors shall be evidenced by
a Board Resolution submitted to the Trustee.
"Voting Agreement" means that Voting Agreement dated May 3, 1999 among
the Company and certain of its securityholders.
"Voting Power" of any Person means the aggregate number of votes of all
classes of Capital Stock of such Person which ordinarily have voting power for
the election of directors of such Person.
"Voting Stock" has the meaning specified in Section 1016.
"Wholly Owned Restricted Subsidiary" of any Person means a Restricted
Subsidiary of such Person all of the outstanding Capital Stock or other
ownership interests of which (other than directors' qualifying shares) shall at
the time be owned by such Person or by one or more Wholly Owned Restricted
Subsidiaries of such Person or by such Person and one or more Wholly Owned
Restricted Subsidiaries of such Person.
SECTION 102. COMPLIANCE CERTIFICATES AND OPINIONS.
Upon any application or request by the Company to the Trustee to take
any action under any provision of this Indenture, the Company shall furnish to
the Trustee such certificates and opinions as may be required under the Trust
Indenture Act. Each such certificate or opinion shall be given in the form of an
Officers' Certificate, if to be given by an officer of the Company, or an
Opinion of Counsel, if to be given by counsel, and shall comply with the
requirements of the Trust Indenture Act and any other requirement set forth in
this Indenture.
Every certificate or opinion with respect to compliance with a condition
or covenant provided for in this Indenture shall include
(1) a statement that each individual signing such
certificate or opinion has read such covenant or condition and the
definitions herein relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such
individual, he has made such examination or investigation as in its
reasonable judgment is necessary to enable him to express an informed
opinion as to whether or not such covenant or condition has been
complied with; and
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(4) a statement as to whether or not, in the opinion of each
such individual, such condition or covenant has been complied with.
SECTION 103. FORM OF DOCUMENTS DELIVERED TO TRUSTEE.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows that the certificate or
opinion or representations with respect to the matters upon which his
certificate or opinion is based are erroneous. Any certificate or opinion of
counsel may be based, insofar as it relates to factual matters, upon a
certificate or opinion of, or representations by, an officer or officers of the
Company stating that the information with respect to such factual matters is in
the possession of the Company, unless such counsel knows that the certificate or
opinion or representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 104. ACTS OF HOLDERS; RECORD DATE.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are received
by the Trustee and, where it is hereby expressly required, by the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. 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 Section 601) conclusive in favor of the Trustee and
the Company, if made in the manner provided in this Section 104.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person
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executing the same, may also be proved in any other manner which the Trustee
reasonably deems sufficient.
(c) The Company may, in the circumstances permitted by the Trust
Indenture Act, fix any day as the record date for the purpose of determining the
Holders entitled to give or take any request, demand, authorization, direction,
notice, consent, waiver or other action, or to vote on any action, authorized or
permitted to be given or taken by Holders. If not set by the Company prior to
the first solicitation of a Holder made by any Person in respect of any such
action, or, in the case of any such vote, prior to such vote, the record date
for any such action or vote shall be the 30th day (or, if later, the date of the
most recent list of Holders required to be provided pursuant to Section 701)
prior to such first solicitation or vote, as the case may be. With regard to any
record date, only the Holders on such date (or their duly designated proxies)
shall be entitled to give or take, or vote on, the relevant action.
(d) The ownership of Securities shall be proved by the Security
Register.
(e) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Security shall bind every future Holder
of the same Security and the Holder of every Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustee or the
Company in reliance thereon, whether or not notation of such action is made upon
such Security.
SECTION 105. NOTICES, ETC., TO TRUSTEE AND COMPANY.
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other document provided or permitted by this Indenture to
be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or
filed in writing to or with the Trustee at its Corporate Trust Office,
Attention: Trust Officer, or
(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage
prepaid, to the Company, Attention: Chief Executive Officer, addressed
to it at the address of its principal office specified in the first
paragraph of this instrument or at any other address previously
furnished in writing to the Trustee by the Company with a copy to its
General Counsel.
SECTION 106. NOTICE TO HOLDERS; WAIVER.
Where this Indenture provides for communication with or notice to
Holders, such notice shall be sufficiently given (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage prepaid, to
each Holder, at his address as it appears in the Security Register, not later
than the latest date (if any), and not earlier than the earliest date (if any),
prescribed for the giving of such notice. In any case where notice to Holders is
given by mail, neither the
26
<PAGE> 34
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 regular mail service or by reason
of any other cause it shall be impracticable to give such notice by mail, then
such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder.
SECTION 107. CONFLICT WITH TRUST INDENTURE ACT.
If any provision hereof limits, qualifies or conflicts with a provision
of the Trust Indenture Act that is required under such Act to be part of and
govern this Indenture, the latter provision shall control. If any provision of
this Indenture modifies or excludes any provision of the Trust Indenture Act
that may be so modified or excluded, the provision of this Indenture shall be
deemed to apply.
SECTION 108. EFFECT OF HEADINGS AND TABLE OF CONTENTS.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
SECTION 109. SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Indenture by the Company shall bind
its successors and assigns, whether so expressed or not.
SECTION 110. SEPARABILITY CLAUSE.
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 111. BENEFITS OF INDENTURE.
Nothing in this Indenture or in the Securities, express or implied,
shall give to any Person, other than the parties hereto and their successors
hereunder, and the Holders of Securities, any benefit or any legal or equitable
right, remedy or claim under this Indenture.
SECTION 112. GOVERNING LAW.
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO PRINCIPLES
OF CONFLICT OF LAWS.
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<PAGE> 35
SECTION 113. LEGAL HOLIDAYS.
In any case where any Interest Payment Date, Redemption Date, Purchase
Date or Stated Maturity of any Security shall not be a Business Day, then
(notwithstanding any other provision of this Indenture or of the Securities)
payment of interest or principal (and premium, if any) 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 Interest Payment Date, Redemption Date or Purchase
Date, or at the Stated Maturity, PROVIDED that no interest shall accrue for the
period from and after such Interest Payment Date, Redemption Date, Purchase Date
or Stated Maturity, as the case may be if such payment is made on such next
succeeding Business Day.
SECTION 114. COUNTERPARTS.
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, and all of which
counterparts shall together constitute but one and the same instrument.
ARTICLE TWO
SECURITY FORMS
SECTION 201. FORMS GENERALLY.
The Securities and the Trustee's certificates of authentication shall be
in substantially the forms set forth in this Article Two, with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture, and may have such letters, numbers or other marks
of identification and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange or as may,
consistently herewith, be determined by the officers executing such Securities,
as evidenced by their execution of the Securities.
The definitive Securities shall be printed, lithographed or engraved or
produced by any combination of these methods on steel engraved borders or may be
produced in any other manner permitted by the rules of any securities exchange
on which the Securities may be listed, all as determined by the officers
executing such Securities, as evidenced by their execution of such Securities.
The Rule 144A Securities shall initially be represented by one or more
Securities in registered, global form without coupons (collectively, the
"Restricted Global Security"). The Initial Regulation S Securities shall
initially be represented by one or more Securities in registered, global form
without interest coupons (collectively, the "Regulation S Global Security" and,
together with the Restricted Global Security, the "Global Securities"). The
Global Securities shall be deposited upon issuance with the Trustee as custodian
for DTC and registered in the name of DTC or its nominee, in each case for
credit to an account of a direct or indirect participant in DTC as described
below. Prior to the expiration of the Distribution Compliance Period, beneficial
interests in the Regulation S Global Security may only be held through Euroclear
or CEDEL (as indirect participants in DTC), unless exchanged for interests in
the
28
<PAGE> 36
Restricted Global Security in accordance with the transfer and certification
requirements described in this Indenture.
SECTION 202. FORM OF FACE OF SECURITY.
The Global Security (including beneficial interests in the Global
Security and, subject to Section 306(c), their Successor Securities) shall be
subject to certain restrictions on transfer and shall bear a legend in
substantially the following form:
THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE OR OTHER
SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN
MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS THE TRANSACTION IS
EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT AND SUCH OTHER APPLICABLE SECURITIES LAWS. THE HOLDER OF THIS SECURITY BY
ITS ACCEPTANCE HEREOF (1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL
BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT ("RULE 144A")) OR (B)
IT IS NOT A U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN "OFFSHORE
TRANSACTION" PURSUANT TO RULE 903 OR 904 OF REGULATION S UNDER THE SECURITIES
ACT ("REGULATION S"), (2) AGREES THAT IT WILL NOT OFFER, SELL OR OTHERWISE
TRANSFER THIS SECURITY EXCEPT (A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF, (B)
PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE
SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE
PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT
OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN
THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS
AND SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE
MEANING OF REGULATION S, PURSUANT TO RULE 904 OF REGULATION S, OR (E) PURSUANT
TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT AND (3) AGREES THAT IT WILL GIVE TO EACH PERSON TO WHOM THIS
SECURITY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND;
PROVIDED THAT THE COMPANY AND THE TRUSTEE AND THE SECURITIES REGISTRAR, AS
APPLICABLE SHALL HAVE THE RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER (I)
PURSUANT TO CLAUSE (D) OR (E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL,
CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM, AND (II) IN
EACH OF THE FOREGOING CASES, TO REQUIRE THAT A CERTIFICATION OF TRANSFER IN THE
FORM APPEARING ON THE OTHER SIDE OF THIS SECURITY IS COMPLETED AND DELIVERED BY
THE TRANSFEROR TO THE COMPANY AND THE TRUSTEE, THE
29
<PAGE> 37
TRANSFER AGENT AND THE SECURITIES REGISTRAR, AS APPLICABLE. AS USED HEREIN, THE
TERMS "OFFSHORE TRANSACTION," "UNITED STATES" AND "U.S. PERSON" HAVE THE
RESPECTIVE MEANINGS GIVEN TO THEM BY REGULATION S.
[IF THE SECURITY IS A GLOBAL SECURITY, THEN INSERT -- THIS SECURITY IS A
GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND
IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS SECURITY
MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A SECURITY REGISTERED, AND NO
TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF
ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE THEREOF, EXCEPT IN THE
LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.]
[IF THE SECURITY IS A GLOBAL SECURITY AND THE DEPOSITORY TRUST COMPANY
IS TO BE THE DEPOSITARY THEREFOR, THEN INSERT -- 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.]
12% [SERIES A] SENIOR DEBENTURES DUE 2011
No. ________ $__________
[If Regulation S Global Security - CUSIP Number __________]
[If Restricted Global Security - CUSIP Number __________]
[If an Exchange Security - CUSIP Number __________]
VoiceStream Wireless Corporation, a corporation duly organized and
existing under the laws of Washington (herein called the "Company," which term
includes any successor Person under the Indenture hereinafter referred to), for
value received, hereby promises to pay to _______________, or registered
assigns, the principal sum of ___________ Dollars [IF THE SECURITY IS A GLOBAL
SECURITY, THEN INSERT -- , or such other principal amount as may be set forth in
the records of the Trustee hereinafter referred to in accordance with the
Indenture, on May 15, 2011, and to pay interest in cash thereon from [insert the
date of issuance or the relevant Interest Payment Date with respect to
Additional Securities (as applicable)], semi-annually on May 15 and November 15
in each year, commencing on November 15, 1999, at the rate of 12% per annum,
until the principal hereof is paid or made available for payment, and (to
30
<PAGE> 38
the extent that the payment of such interest shall be legally enforceable) at
the rate of 13% per annum on any overdue principal and premium, if any, and on
any overdue installment of interest until paid. [IF THE SECURITY IS AN ORIGINAL
SECURITY, THEN INSERT --, PROVIDED that if a "Triggering Event" (as defined in
the Debenture Exchange and Registration Rights Agreement) shall occur (PROVIDED
that no more than one Triggering Event shall be deemed to be in effect at any
one time), then interest will accrue (in addition to the stated interest on this
Security) (the "Step-Up") at a rate of 0.5% per annum on the principal amount of
the Securities for the period from the occurrence of the Triggering Event until
such time (the "Step-Down Date") as no Triggering Event is in effect. Special
Interest (as defined below) shall be payable in cash semi-annually in arrears on
each May 15 and November 15. For each 90-day period that the Triggering Event
continues, the per annum rate of such Special Interest shall increase (each such
increase, an "Additional Step-Up") by an additional 0.5% per annum, PROVIDED
that the sum of the Step-Up and all Additional Step-Ups shall in no event exceed
2.0% per annum in the aggregate. On the Step-Down Date the interest rate will be
restored to its initial rate. The Company shall provide the Trustee with written
notice of the date of any Triggering Event and the Step-Down Date. Interest
accruing as a result of the Step-Up or an Additional Step-Up is referred to
herein as "Special Interest."] The interest so payable, and punctually paid or
duly provided for, on any Interest Payment Date will, as provided in such
Indenture, be paid to the Person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest, which shall be May 1 or November 1 (whether or
not a Business Day), as the case may be, next preceding such Interest Payment
Date. [IF THE SECURITY IS AN ORIGINAL SECURITY, THEN INSERT --, PROVIDED that
any accrued and unpaid interest (including Special Interest) on this Security
upon the issuance of an Exchange Security in exchange for this Security shall
cease to be payable to the Holder hereof and shall be payable on the next
Interest Payment Date for such Exchange Security to the Holder thereof on the
related Regular Record Date] Any such interest not so punctually paid or duly
provided for will forthwith cease to be payable to the Holder on such Regular
Record Date and may either be paid to the Person in whose name this Security (or
one or more Predecessor Securities) is registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest to be fixed by
the Trustee, notice of which shall be given to Holders of Securities not less
than 10 days prior to such Special Record Date, or be paid at any time in any
other lawful manner not inconsistent with the requirements of any securities
exchange on which the Securities may be listed, and upon such notice as may be
required by such exchange, all as more fully provided in the Indenture.
In lieu of making cash payment of interest (including any Special
Interest) due on or before May 15, 2004, the Company may at its option elect to
pay such interest, in whole or in part, by the issuance of Additional Securities
to the Holders on the respective Interest Payment Date. The principal amount of
Additional Securities issued in lieu of cash payment shall be equal to the
amount of interest payable on such Interest Payment Date (including any Special
Interest) that is not paid in cash on such date.
Subject to the preceding paragraph, payment of the principal of (and
premium, if any) and interest on this Security will be made at the Corporate
Trust Office or at the office or agency of the Company maintained for that
purpose in the Borough of Manhattan, New York City, in such
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<PAGE> 39
coin or currency of the United States of America as at the time of payment is
legal tender for payment of public and private debts; PROVIDED, HOWEVER, that at
the option of the Company payment of interest may be made by check mailed to the
address of the Person entitled thereto as such address shall appear in the
Security Register (or as provided in the immediately preceding paragraph, if
applicable).
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
Dated:
VOICESTREAM WIRELESS CORPORATION
By:
-------------------------------------
Name:
Title:
Attest:
- ----------------------------------
Name:
-----------------------------
Title:
---------------------------
SECTION 203. FORM OF REVERSE OF SECURITY.
This Security is one of a duly authorized issue of securities of the
Company designated as its 12% [Series A] Senior Debentures due 2011 (herein
called the "Securities"), issued and to be issued under an Indenture, dated as
of May 14, 1999 (herein called the "Indenture"), between the Company and Harris
Trust Company of California, as Trustee (herein called the "Trustee," which term
includes any successor trustee under the Indenture), to which Indenture and all
indentures supplemental thereto reference is hereby made for a statement of the
respective rights, limitations of rights, duties and immunities thereunder of
the Company, the Trustee and the Holders of the Securities and of the terms upon
which the Securities are, and are to be, authenticated and delivered. The
Securities are limited (except as otherwise provided herein or in the Indenture
referred to above) in aggregate principal amount to $400,000,000.
On or after May 15, 2004, the Securities may be redeemed at any time at
the option of the Company, in whole or from time to time in part, at the
following Redemption Prices (expressed
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<PAGE> 40
as percentages of the principal amount thereof). If redeemed during the 12-month
period beginning May 15 of the years indicated,
<TABLE>
<CAPTION>
YEAR REDEMPTION PRICE
---- ----------------
<S> <C>
2004 106.000%
2005 104.500%
2006 103.000%
2007 101.500%
2008 and thereafter 100.000%
</TABLE>
together in the case of any such redemption with accrued interest to but
excluding the Redemption Date, but any interest installment whose Stated
Maturity is on or prior to such Redemption Date will be payable to the Holders
of such Securities, or one or more Predecessor Securities, of record at the
close of business on the relevant Record Dates referred to on the face hereof,
all as provided in the Indenture.
Notwithstanding the foregoing, at any time prior to May 15, 2002, the
Company may redeem up to 35% of the aggregate principal amount of Securities
(including Additional Securities) actually issued under the Indenture from the
net cash proceeds of a Qualifying Event at a Redemption Price equal to 112.0% of
the aggregate principal amount thereof, together with accrued and unpaid
interest to but excluding the Redemption Date; PROVIDED, that at least $260
million in aggregate principal amount of Securities (including Additional
Securities) remains outstanding immediately following such redemption. Any such
redemption must be made within 30 days after the related Qualifying Event.
In addition, at any time prior to May 15, 2004, the Securities may also
be redeemed at the option of the Company, in whole but not in part, upon the
occurrence of a Change of Control (but in no event may any such redemption occur
more than 90 days after the occurrence of such Change of Control) at a
redemption price equal to 100% of the principal amount thereof plus the
Applicable Premium as of, and accrued and unpaid interest, if any, to, the
Redemption Date therefor.
Notice of any optional redemption of any Securities (or portion thereof)
will be given to the Holders at their addresses appearing in the Security
Register not less than 30 nor more than 60 days prior to the Redemption Date.
The notice of redemption shall state the Redemption Date, the Redemption Price,
if less than all the Outstanding Securities are to be redeemed, principal
amounts of the particular Securities to be redeemed, that on the Redemption Date
the Redemption Price will become due and payable upon each Security to be
redeemed and the place or places where such Securities are to be surrendered for
payment of the Redemption Price. If less than all of the Securities are to be
redeemed, the particular Securities to be redeemed shall be selected not more
than 60 days prior to the Redemption Date by the Trustee by such method as the
Trustee deems fair and appropriate.
The Securities do not have the benefit of any sinking fund obligations.
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<PAGE> 41
In the event of redemption or purchase pursuant to an Offer to Purchase
of this Security in part only, a new Security or Securities for the unredeemed
or unpurchased portion hereof will be issued in the name of the Holder hereof
upon the cancellation hereof.
If an Event of Default shall occur and be continuing, the principal of
all the Securities may be declared or automatically become due and payable in
the manner and with the effect provided in the Indenture.
The Indenture provides that, subject to certain conditions, if (i)
certain Net Cash Proceeds are available to the Company as a result of Asset
Sales or (ii) a Change of Control occurs, the Company shall be required to make
an Offer to Purchase for Securities.
The Indenture contains provisions for defeasance at any time of (i) the
entire indebtedness of this Security or (ii) certain restrictive covenants and
Events of Default with respect to this Security, in each case upon compliance
with certain conditions set forth therein. The Indenture permits, with certain
exceptions as therein provided, the amendment thereof and the modification of
the rights and obligations of the Company and the rights of the Holders of the
Securities under the Indenture at any time by the Company and the Trustee with
the consent of the Holders of a majority in aggregate principal amount of the
Securities at the time Outstanding. The Indenture also contains provisions
permitting the Holders of specified percentages in aggregate principal amount of
the Securities at the time Outstanding, on behalf of the Holders of all the
Securities, to waive compliance by the Company with certain provisions of the
Indenture and certain past defaults under the Indenture and their consequences.
Any such consent or waiver by the Holder of this Security shall be conclusive
and binding upon such Holder and upon all future Holders of this Security and of
any Security issued upon the registration of transfer hereof or in exchange
herefor or in lieu hereof, whether or not notation of such consent or waiver is
made upon this Security.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of (and premium, if any) and
interest on this Security at the time, place and rate, and in the coin or
currency (or Additional Securities if permitted hereunder), herein prescribed.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the
Corporate Trust Office or at the office or agency of the Company in the Borough
of Manhattan, New York City, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Company and the Security
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Securities, of authorized denominations
and for the same aggregate principal amount, will be issued to the designated
transferee or transferees.
The Securities are issuable only in registered form without coupons in
denominations of $1,000 and any integral multiple thereof. As provided in the
Indenture and subject to certain limitations therein set forth, Securities are
exchangeable for a like aggregate principal amount of
34
<PAGE> 42
Securities of a different authorized denomination, as requested by the Holder
surrendering the same.
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name this Security is registered as the owner hereof for all
purposes, whether or not this Security be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
Interest on this Security shall be computed on the basis of a 360-day
year of twelve 30-day months; PROVIDED that any Special Interest shall be
computed on the basis of a 365 or 366 day year, as the case may be, and the
number of days actually elapsed.
All terms used in this Security which are not defined herein but which
are defined in the Indenture shall have the meanings assigned to them in the
Indenture. The Indenture and this Security shall be governed by and construed in
accordance with the laws of the State of New York.
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased in its entirety by
the Company pursuant to Section 1014, 1015 or 1016 of the Indenture, check the
box:
[ ]
If you want to elect to have only a part of this Security purchased by
the Company pursuant to Section 1014, 1015 or 1016 of the Indenture, state the
amount: $_______
Dated:
Your Signature:
-------------------------
(Sign exactly as name
appears on the other side
of this Security)
Signature Guarantee:
----------------------------------------
(Signature must be guaranteed by an
eligible guarantor institution which is
a member of or participant in the
Securities Transfer Agent Medallion
Program (STAMP))
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<PAGE> 43
SECTION 204. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
This is one of the Securities referred to in the within-mentioned
Indenture.
Harris Trust Company of California,
as Trustee
By:
-------------------------------------
Authorized Officer
ARTICLE THREE
THE SECURITIES
SECTION 301. TITLE AND TERMS.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is limited to $400,000,000
except for Securities authenticated and delivered as Additional Securities
pursuant to the fifth paragraph of this Section, and except for Securities
authenticated and delivered upon registration of transfer of, or in exchange
for, or in lieu of, other Securities pursuant to Section 304, 305, 306, 307, 906
or 1108 or in connection with an Offer to Purchase pursuant to Section 1014,
1015 or 1016.
Subject to Section 303, the Trustee shall authenticate Securities for
original issue on the date of this Indenture in the aggregate principal amount
of $400,000,000. With respect to any Securities issued after the date of this
Indenture in lieu of payment of cash interest (including Special Interest) as
permitted by the fifth paragraph of this Section 301, there shall be established
in or pursuant to a resolution of the Board of Directors of the Company, and
subject to Section 303, set forth, or determined in the manner provided in an
Officers' Certificate, or established in one or more indentures supplemental
hereto, prior to the issuance of such Securities ("Additional Securities"):
(1) the aggregate principal amount of such Securities that
may be authenticated and delivered under this Indenture in payment of
interest otherwise payable in cash pursuant to this Indenture;
(2) the issuance date of such Securities that may be
authenticated and delivered under this Indenture; and
(3) that such Additional Securities shall be issuable in the
same form as the then Outstanding Securities (i.e., as either a Global
Security or as non-Global Securities and, if the Exchange Securities
have been issued, as Exchange Securities) and having the same terms as
the then Outstanding Securities and the same depositaries.
The Original Securities shall be known and designated as the "12% Series
A Senior Debentures due 2011" and the Exchange Securities shall be known and
designated as the "12% Senior Debentures due 2011," in each case, of the
Company. Their Stated Maturity shall be
36
<PAGE> 44
May 15, 2011 and they shall bear interest at the rate of 12% per annum, from the
Debenture Issue Date or from the most recent Interest Payment Date to which
interest has been paid in cash or duly provided for, as the case may be, payable
semi-annually on May 15 and November 15, commencing on November 15, 1999, to the
Holders of record on the immediately preceding May 1 and November 1, until the
principal thereof is paid or made available for payment; PROVIDED, HOWEVER, with
respect to Original Securities, that if a Triggering Event occurs (PROVIDED that
no more than one Triggering Event shall be deemed to be in effect at any one
time), then a Step-Up will occur for the period from the occurrence of the
Triggering Event until the Step-Down Date; PROVIDED, FURTHER, that for each
90-day period that the Triggering Event continues, an Additional Step-Up shall
occur; and PROVIDED, FURTHER, that the sum of the Step-Up and all Additional
Step-Ups shall in no event exceed 2.0% per annum in the aggregate. On the
Step-Down Date the interest rate will be restored to its initial rate. The
Company shall provide the Trustee with written notice of the date of any
Triggering Event and the Step-Down Date. The interest so payable, and punctually
paid or duly provided for in respect of any Security, on any Interest Payment
Date will, as provided in this Indenture, be paid to the Person in whose name
such Security (or one or more Predecessor Securities) is registered at the close
of business on the Regular Record Date for such interest, which shall be May 1
or November 1 (whether or not a Business Day), as the case may be, next
preceding such Interest Payment Date. Accrued Special Interest, if any, shall be
paid in cash (or Additional Securities if permitted hereunder) in arrears
semiannually on May 15 and November 15 in each year and the amount of accrued
Special Interest shall be determined on the basis of the number of days actually
elapsed and computed as provided in Section 311.
The principal of (and premium, if any) and interest on the Securities
shall be payable at the Corporate Trust Office or at the office or agency of the
Company in the City and State of New York maintained for such purpose; PROVIDED,
HOWEVER, that at the option of the Company payment of interest may be made by
check mailed to the address of the Person entitled thereto as such address shall
appear in the Security Register.
In lieu of making cash payment of interest (including any Special
Interest) due on or before May 15, 2004, the Company may at its option elect to
pay such interest, in whole or in part, by the issuance of Additional Securities
to the Holders on the respective Interest Payment Date. The principal amount of
Additional Securities issued in lieu of cash payment shall be equal to the
amount of interest payable on such Interest Payment Date (including any Special
Interest) that is not paid in cash on such date.
The Securities shall be subject to repurchase by the Company pursuant to
an Offer to Purchase as provided in Sections 1014, 1015 and 1016.
The Securities shall be redeemable as provided in Article Eleven.
The Securities shall be subject to defeasance at the option of the
Company as provided in Article Twelve.
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<PAGE> 45
SECTION 302. DENOMINATIONS.
The Securities shall be issuable only in registered form without coupons
and only in denominations of $1,000 and any integral multiples thereof.
SECTION 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
The Securities shall be executed on behalf of the Company by its
Chairman of the Board, its President or one of its Vice Presidents, attested by
its Secretary, one of its Assistant Secretaries or its Chief Financial Officer.
The signature of any of these officers on the Securities may be manual or
facsimile.
Securities bearing the manual or facsimile signatures of individuals who
were at any time the proper Officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities, including Additional
Securities, executed by the Company to the Trustee for authentication, together
with a Company Order for the authentication and delivery of such Securities; and
the Trustee in accordance with such Company Order shall authenticate and deliver
such Securities as in this Indenture provided and not otherwise.
At any time and from time to time after the execution and delivery of
this Indenture and after the effectiveness of a registration statement under the
Securities Act with respect thereto, the Company may deliver Exchange Securities
executed by the Company to the Trustee for authentication, together with a
Company Order for the authentication and delivery of such Exchange Securities
and a like principal amount of Original Securities for cancellation in
accordance with Section 310 of this Indenture, and the Trustee in accordance
with such Company Order shall authenticate and deliver such Securities. Prior to
authenticating such Exchange Securities, and accepting any additional
responsibilities under this Indenture in relation to such Securities, the
Trustee shall be entitled to receive, if requested, and (subject to Section 601)
shall be fully protected in relying upon, an Opinion of Counsel stating in
substance
(a) that all conditions hereunder precedent to the
authentication and delivery of such Exchange Securities have been
complied with and that such Securities, when such Exchange Securities
have been duly authenticated and delivered by the Trustee (and subject
to any other conditions specified in such Opinion of Counsel), have been
duly issued and delivered and will constitute valid and legally binding
obligations of the Company enforceable in accordance with their terms,
subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or
affecting creditors' rights and to general equity principles; and
(b) that the issuance of such Securities in exchange for
Original Securities has been effected in compliance with the Securities
Act.
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Each Security shall be dated the date of its authentication. No Security
shall be entitled to any benefit under this Indenture or be valid or obligatory
for any purpose unless there appears on such Security a certificate of
authentication substantially in the form provided for herein executed by the
Trustee by manual signature, and such certificate upon any Security shall be
conclusive evidence, and the only evidence, that such Security has been duly
authenticated and delivered hereunder.
SECTION 304. TEMPORARY SECURITIES.
Pending the preparation of definitive Securities, the Company may
execute, and upon Company Order the Trustee shall authenticate and deliver,
temporary Securities which are printed, lithographed, typewritten, mimeographed
or otherwise produced, in any authorized denomination, substantially of the
tenor of the definitive Securities in lieu of which they are issued and with
such appropriate insertions, omissions, substitutions and other variations as
the officers executing such Securities may determine, as evidenced by their
execution of such Securities. If temporary Securities are issued, the Company
will cause definitive Securities to be prepared without unreasonable delay.
After the preparation of definitive Securities, the temporary Securities shall
be exchangeable for definitive Securities upon surrender of the temporary
Securities at any office or agency of the Company designated pursuant to Section
1002, without charge to the Holder. Upon surrender for cancellation of any one
or more temporary Securities the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a like principal amount of
definitive Securities of authorized denominations. Until so exchanged the
temporary Securities shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities.
SECTION 305. GLOBAL SECURITIES.
(a) Each Global Security authenticated under this Indenture shall be
registered in the name of the Depositary designated by the Company 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 Company 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,
(ii) there shall have occurred and be continuing an Event of Default with
respect to such Global Security, (iii) the Company executes and delivers to the
Trustee a Company Order stating that it elects to cause the issuance of the
Securities in certificated form and that all Global Securities shall be
exchanged in whole for Securities that are not Global Securities (in which case
such exchange shall be effected by the Trustee) or (iv) pursuant to the
following sentence. All or any portion of a Global Security may be exchanged for
a Security that has a like aggregate principal amount and is not a Global
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Security, upon 20 days' prior request made by the Depositary or its authorized
representative to the Trustee.
(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 Security Registrar, for exchange or
cancellation as provided in this Article Three. 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, then either (i) such Global Security shall be so surrendered for
exchange or cancellation as provided in this Article Three 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 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 Security Registrar, whereupon the Trustee, in accordance with the
Applicable Procedures, shall instruct the Depositary or its authorized
representative to make a corresponding adjustment to its records. Upon any such
surrender or adjustment of a Global Security, the Trustee shall, subject to
Section 305(b) and as otherwise provided in this Article Three, authenticate and
deliver 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 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 Company 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 Three if such order, direction or request is given
or made in accordance with the Applicable 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 Three, Section 906, 1014, 1015, 1016
or 1108 or otherwise, shall be authenticated and delivered in the form of, and
shall be, a 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.
(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 Applicable 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 Agent Members.
SECTION 306. REGISTRATION; REGISTRATION OF TRANSFER AND EXCHANGE GENERALLY;
CERTAIN TRANSFERS AND EXCHANGES; SECURITIES ACT LEGENDS.
(a) REGISTRATION; REGISTRATION OF TRANSFER AND EXCHANGE GENERALLY.
The Company shall cause to be kept at the Corporate Trust Office a register (the
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register maintained in such office and in any other office or agency designated
pursuant to Section 1002 being herein sometimes collectively referred to as the
"Security Register") in which, subject to such reasonable regulations as it may
prescribe, the Company shall provide for the registration of Securities and of
transfers and exchanges of Securities. The Trustee is hereby appointed "Security
Registrar" for the purpose of registering Securities and transfers and exchanges
of Securities as herein provided. Such Security Register shall distinguish
between Original Securities and Exchange Securities.
Upon surrender for registration of transfer of any Security at an office
or agency of the Company designated pursuant to Section 1002 for such purpose,
the Company shall execute, and the Trustee shall authenticate and deliver, in
the name of the designated transferee or transferees, one or more new Securities
of any authorized denominations, of a like aggregate principal amount and
bearing such restrictive legends as may be required by this Indenture.
At the option of the Holder, Securities may be exchanged for new
Securities of any authorized denominations, of a like aggregate principal amount
and bearing such restrictive legends as may be required by this Indenture, upon
surrender of the Securities to be exchanged at such office or agency. Whenever
any Securities are so surrendered for exchange, the Company shall execute, and
the Trustee shall authenticate and deliver, the Securities which the Holder
making the exchange is entitled to receive.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and (except for the differences between Original Securities and Exchange
Securities provided for herein) entitled to the same benefits under this
Indenture, as the Securities surrendered upon such registration of transfer or
exchange.
Every Security presented or surrendered for registration of transfer or
for exchange shall (if so required by the Company or the Trustee) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed, by the
Holder thereof or his attorney duly authorized in writing.
No service charge shall be made to the Holders for any registration of
transfer or exchange of Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any registration of transfer or exchange of Securities, other
than exchanges pursuant to Section 304, 305, 306, 906, 1014, 1015, 1016 or 1108
not involving any transfer.
The Company shall not be required (i) to issue, register the transfer of
or exchange any Security during a period beginning at the opening of business 15
days before the day of the mailing of a notice of redemption of Securities
selected for redemption under Section 1104 and ending at the close of business
on the day of such mailing, 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.
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(b) CERTAIN TRANSFERS AND EXCHANGES. Notwithstanding any other
provision of this Indenture or the Securities, transfers and exchanges of
Securities and beneficial interests in a Global Security of the kinds specified
in this Section 306(b) shall be made only in accordance with this Section 306(b)
(with reference to Section 305).
(i) EXCHANGES BETWEEN THE RESTRICTED GLOBAL SECURITY AND THE
REGULATION S GLOBAL SECURITY.
(A) Beneficial interests in the Restricted Global
Security may be exchanged for beneficial interests in the
Regulation S Global Security and vice versa only in connection
with a transfer of such interest. Such transfers are subject to
compliance with the certification requirements described below.
(B) A beneficial interest in the Restricted Global
Security may be transferred to a Person who takes delivery in
the form of an interest in the Regulation S Global Security,
whether before or after the expiration of the Distribution
Compliance Period, only upon receipt by the Trustee of a written
certification on behalf of the transferor to the effect that
such transfer is being made in accordance with Rule 904 of
Regulation S or (if available) Rule 144 under the Securities Act
and that, if such transfer occurs prior to the expiration of the
Distribution Compliance Period, the interest transferred will be
held immediately thereafter through Euroclear or CEDEL.
(C) Prior to the expiration of the Distribution
Compliance Period, a beneficial interest in the Regulation S
Global Security may be transferred to a person who takes
delivery in the form of an interest in the Restricted Global
Security only upon receipt by the Trustee of a written
certification on behalf of the transferor to the effect that
such transfer is being made to a person who the transferor
reasonably believes is a qualified institutional buyer acquiring
for its own account or the account of a qualified institutional
buyer in a transaction complying with Rule 144A and any
applicable securities laws of the states of the United States
and other jurisdictions. After the expiration of the
Distribution Compliance Period, this certification requirement
shall no longer apply to such transfers. Any such exchange of a
beneficial interest in the Regulation S Global Security for a
beneficial interest in the Restricted Global Security or vice
versa will be effected in DTC by means of an instruction
originated by the Trustee through the DTC Deposit/Withdrawal at
Custodian ("DWAC") system and an appropriate adjustment shall be
made in the records of the Security Register to reflect a
decrease in the principal amount of the relevant Global
Security.
(D) Any beneficial interest in one of the Global
Securities that is exchanged for an interest in the other Global
Security shall cease to be an interest in such Global Security
and shall become an interest in the other Global Security.
Accordingly, such interest shall thereafter be subject to all
transfer restrictions and
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other procedures applicable to beneficial interests in such
other Global Security for as long as it remains such an
interest.
(ii) EXCHANGES OF BOOK-ENTRY SECURITIES FOR CERTIFICATED
SECURITIES. A beneficial interest in a Global Security may not be
exchanged for a Security in certificated form unless (A) DTC (x)
notifies the Company that it is unwilling or unable to continue as
Depositary for the Global Security or (y) has ceased to be a clearing
agency registered under the Exchange Act, and in either case the Company
fails to appoint a successor Depository, (B) the Company, at its option,
notifies the Trustee in writing that it elects to cause the issuance of
the Securities in certificated form or (C) there shall have occurred and
be continuing an Event of Default or any event which after notice or
lapse of time or both would be an Event of Default with respect to the
Securities. In all cases, certificated Securities delivered in exchange
for any Global Security or beneficial interests therein shall be
registered in the names, and issued in any approved denominations,
requested by or on behalf of the Depositary (in accordance with its
customary procedures). Any certificated Security issued in exchange for
an interest in a Global Security shall bear the legend restricting
transfers that is borne by such Global Security.
(iii) SECURITIES ACT LEGENDS. Rule 144A Securities and their
respective Successor Securities shall bear a Securities Act Legend, and
Initial Regulation S Securities and their Successor Securities shall
bear a Securities Act Legend, subject to the following:
(A) subject to the following Clauses of this Section
306(b), a Security or any portion thereof which is exchanged,
upon transfer or otherwise, for a Global Security or any portion
thereof shall bear the Securities Act Legend borne by such
Global Security while represented thereby;
(B) subject to the following Clauses of this Section
306(b), a new Security which is not a Global Security and is
issued in exchange for another Security (including a Global
Security) or any portion thereof, upon transfer or otherwise,
shall bear the Securities Act Legend borne by such other
Security;
(C) Registered Securities shall not bear a
Securities Act Legend;
(D) a new Security which does not bear a Securities
Act Legend may be issued in exchange for or in lieu of a
Security (other than a Global Security) or any portion thereof
which bears such a legend if, in the Company's judgment, placing
such a legend upon such new Security is not necessary to ensure
compliance with the registration requirements of the Securities
Act, and the Trustee, at the direction of the Company, shall
authenticate and deliver such a new Security as provided in this
Article Three; and
(E) notwithstanding the foregoing provisions of this
Section 306(b), a Successor Security of a Security that does not
bear a particular form of Securities
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Act Legend shall not bear such form of legend unless the Company
has reasonable cause to believe that such Successor Security is
a "restricted security" within the meaning of Rule 144, in which
case the Trustee, at the direction of the Company, shall
authenticate and deliver a new Security bearing a Securities Act
Legend in exchange for such Successor Security as provided in
this Article Three.
SECTION 307. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES.
If any mutilated Security is surrendered to the Trustee, the Company
shall execute and the Trustee shall authenticate and deliver in exchange
therefor a new Security of like tenor and principal amount and bearing a number
not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i) evidence
to their satisfaction of the destruction, loss or theft of any Security and (ii)
such security or indemnity as may be required by them to save each of them and
any agent of either of them harmless, then, in the absence of notice to the
Company or the Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall execute and upon its request the Trustee shall
authenticate and deliver, in lieu of any such destroyed, lost or stolen
Security, a new Security of like tenor and principal amount and bearing a number
not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or Stolen Security has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security issued pursuant to this Section in lieu of any
destroyed, lost or stolen Security shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities.
SECTION 308. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.
Interest on any Security which is payable, and is punctually paid or
duly provided for, on any Interest Payment Date shall be paid to the Person in
whose name that Security (or one or more Predecessor Securities) is registered
at the close of business on the Regular Record Date for such interest.
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Any interest on any Security which is payable, but is not punctually
paid or duly provided for, on any Interest Payment Date (herein called
"Defaulted Interest") shall forthwith cease to be payable to the Holder on the
relevant Regular Record Date by virtue of having been held by such Holder, and
such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Securities (or their
respective Predecessor Securities) are registered at the close of
business on a Special Record Date for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The Company
shall notify the Trustee in writing of the amount of Defaulted Interest
proposed to be paid on each Security and the date of the proposed
payment, and at the same time the Company shall deposit with the Trustee
an amount of money equal to the aggregate amount proposed to be paid in
respect of such Defaulted Interest, such money when deposited to be held
in trust for the benefit of the Persons entitled to such Defaulted
Interest as in this Clause provided. Thereupon the Trustee shall fix a
Special Record Date for the payment of such Defaulted Interest which
shall be not more than 15 days and not less than 10 days prior to the
date of the proposed payment and not less than 10 days after the receipt
by the Trustee of the notice of the proposed payment. The Trustee shall
promptly notify the Company of such Special Record Date and, in the name
and at the expense of the Company, shall cause notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor
to be mailed, first-class postage prepaid, to each Holder at his address
as it appears in the Security Register, not less than 10 days prior to
such Special Record Date. Notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor having been so
mailed, such Defaulted Interest shall be paid to the Persons in whose
names the Securities (or their respective Predecessor Securities) are
registered at the close of business on such Special Record Date and
shall no longer be payable pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted Interest
in any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities may be listed, and upon such
notice as may be required by such exchange, if, after notice given by
the Company to the Trustee of the proposed payment pursuant to this
Clause, such manner of payment shall be deemed practicable by the
Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue interest, which were carried by such other Security.
SECTION 309. PERSONS DEEMED OWNERS.
Prior to due presentment of a Security for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name such
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Security is registered as the owner of such security for the purpose of
receiving payment of principal of (and premium, if any) and (subject to Section
308) interest on such Security and for all other purposes whatsoever, whether or
not such Security be overdue, and neither the Company, the Trustee nor any agent
of the Company or the Trustee shall be affected by notice to the contrary.
None of the Company, the Trustee, any Paying Agent or the Security
Registrar will have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests of a Global Security or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interests.
SECTION 310. CANCELLATION.
All Securities surrendered for payment, redemption, registration of
transfer or exchange or for credit against any Offer to Purchase, pursuant to
Section 1014, 1015 or 1016, shall, if surrendered to any Person other than the
Trustee, be delivered to the Trustee and shall be promptly cancelled by it. The
Company may at any time deliver to the Trustee for cancellation any Securities
previously authenticated and delivered hereunder which the Company may have
acquired in any manner whatsoever, and all Securities so delivered shall be
promptly cancelled by the Trustee. No Securities shall be authenticated in lieu
of or in exchange for any Securities cancelled as provided in this Section 310,
except as expressly permitted by this Indenture. All cancelled Securities held
by the Trustee shall (subject to the record-retention requirements of the
Exchange Act) be disposed of as directed by a Company Order.
SECTION 311. COMPUTATION OF INTEREST.
Interest on the Securities shall be computed on the basis of a 360-day
year of twelve 30-day months; PROVIDED, HOWEVER, that any Special Interest shall
be computed on the basis of a 365- or 366-day year, as the case may be, and the
number of days actually elapsed.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. SATISFACTION AND DISCHARGE OF INDENTURE.
This Indenture shall cease to be of further effect (except as to any
surviving rights of registration of transfer or exchange of Securities herein
expressly provided for), and the Trustee, on demand of and at the expense of the
Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture (including, but not limited to, Article Twelve
hereof), when
(1) either
(A) all Securities theretofore authenticated and
delivered (other than (i) Securities which have been destroyed,
lost or stolen and which have been replaced or paid as provided
in Section 307 and (ii) Securities for whose payment
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money has theretofore been deposited in trust or segregated and
held in trust by the Company and thereafter repaid to the
Company or discharged from such trust, as provided in Section
1003) have been delivered to the Trustee for cancellation; or
(B) all such Securities not theretofore delivered to
the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their
Stated Maturity within one year, or
(iii) are to be called for redemption within
one year under arrangements satisfactory to the Trustee
for the giving of notice of redemption by the Trustee in
the name, and at the expense, of the Company,
and the Company, in the case of (i), (ii) or (iii) above, has
deposited or caused to be deposited with the Trustee as trust
funds in trust for the purpose an amount sufficient to pay and
discharge the entire indebtedness on such Securities not
theretofore delivered to the Trustee for cancellation, for
principal (and premium, if any) and interest to the date of such
deposit (in the case of Securities which have become due and
payable) or to the Stated Maturity or Redemption Date, as the
case may be;
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein PROVIDED that relate to the satisfaction and discharge
of this Indenture have been satisfied.
Notwithstanding the satisfaction and discharge of this Indenture pursuant to
this Article Four, the obligations of the Company to the Trustee under Section
607, the obligations of the Trustee to any Authenticating Agent under Section
614 and, if money shall have been deposited with the Trustee pursuant to
subclause (B) of Clause (1) of this Section, the obligations of the Trustee
under Section 402 and the last paragraph of Section 1003 shall survive.
SECTION 402. APPLICATION OF TRUST MONEY.
Subject to the provisions of the last paragraph of Section 1003, all
money deposited with the Trustee pursuant to Section 401 shall be held in trust
and applied by it, in accordance with the provisions of the Securities and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
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determine, to the Persons entitled thereto, of the principal (and premium, if
any) and interest for whose payment such money has been deposited with the
Trustee.
ARTICLE FIVE
REMEDIES
SECTION 501. EVENTS OF DEFAULT.
"Event of Default," wherever used herein, means any one of the following
events (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):
(1) failure to pay the principal of (or premium, if any, on)
any Security at its Maturity; or
(2) failure to pay any interest upon any Security for a
period of 30 days or more after it becomes due and payable; or
(3) failure to make timely any Offer to Purchase required to
be made pursuant to Section 1014, 1015 or 1016 or, on the applicable
Purchase Date, to purchase Securities required to be purchased by the
Company pursuant to Section 1014, 1015 or 1016; or
(4) failure to perform or comply with, or breach of, Article
Eight; or
(5) failure to perform, or breach of, any covenant or
agreement of the Company in this Indenture (other than a covenant or
agreement a default in whose performance or whose breach is elsewhere in
this Section 501 specifically addressed), and continuance of such
failure or breach for a period of 30 days after there has been given, by
registered or certified mail, to the Company by the Trustee or to the
Company and the Trustee by the Holders of at least 25% in aggregate
principal amount of the Outstanding Securities a written notice
specifying such failure or breach and requiring it to be remedied and
stating that such notice is a "Notice of Default" hereunder; or
(6) a default or defaults under any bond(s), debenture(s),
note(s) or other evidence(s) of Indebtedness by the Company or any
Restricted Subsidiary of the Company or under any mortgage(s),
indenture(s) or instrument(s) under which there may be issued or by
which there may be secured or evidenced any Indebtedness of such type by
the Company or any such Restricted Subsidiary with a principal amount
then outstanding, individually or in the aggregate, in excess of $5
million, whether such Indebtedness now exists or shall hereafter be
created, which default or defaults result in the acceleration of the
payment of such Indebtedness or shall constitute a failure to pay any
portion of the principal of such Indebtedness at maturity after the
expiration of any applicable grace period with respect thereto or shall
have resulted in such Indebtedness becoming or being declared due and
payable prior to the date on which it would otherwise have become due
and payable; or
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(7) a final judgment or final judgments for the payment of
money are entered against the Company or any Restricted Subsidiary of
the Company in an aggregate amount in excess of $5 million, which
judgments remain undischarged, unstayed or unbonded for a period (during
which execution shall not be effectively stayed) of 60 days after the
right to appeal has expired; or
(8) the entry by a court having jurisdiction in the premises
of (A) a decree or order for relief in respect of the Company or any
Restricted Subsidiary of the Company in an involuntary case or
proceeding under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or (B) a decree or order adjudging
the Company or any such Restricted Subsidiary a bankrupt or insolvent,
or approving as properly filed a petition seeking reorganization,
arrangement, adjustment or composition of or in respect of the Company
or any such Restricted Subsidiary under any applicable Federal or State
law, or appointing a custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official of the Company or any such
Restricted Subsidiary or of any substantial part of the property of the
Company or any such Restricted Subsidiary, or ordering the winding up or
liquidation of the affairs of the Company or any such Restricted
Subsidiary, and the continuance of any such decree or order for relief
or any such other decree or order unstayed and in effect for a period of
60 consecutive days; or
(9) the commencement by the Company or any Restricted
Subsidiary of the Company of a voluntary case or proceeding under any
applicable Federal or State bankruptcy, insolvency, reorganization or
other similar law or of any other case or proceeding to be adjudicated a
bankrupt or insolvent, or the consent by the Company or any such
Restricted Subsidiary to the entry of a decree or order for relief in
respect of the Company or any Restricted Subsidiary of the Company 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
the Company or any Restricted Subsidiary of the Company, or the filing
by the Company or any such Restricted Subsidiary of a petition or answer
or consent seeking reorganization or relief under any applicable Federal
or State law, or the consent by the Company or any such Restricted
Subsidiary to the filing of such petition or to the appointment of or
taking possession by a custodian, receiver, liquidator, assignee,
trustee, sequestrator or similar official of the Company or any
Restricted Subsidiary of the Company or of any substantial part of the
property of the Company or any Restricted Subsidiary of the Company, or
the making by the Company or any Restricted Subsidiary of the Company of
an assignment for the benefit of creditors, or the admission by the
Company or any such Restricted Subsidiary in writing of its inability to
pay its debts generally as they become due, or the taking of corporate
action by the Company or any such Restricted Subsidiary in furtherance
of any such action.
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SECTION 502. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
Subject to Section 1020, if an Event of Default (other than an Event of
Default specified in Section 501(8) or (9)) shall occur and be continuing, then
and in every such case the Trustee or the Holders of not less than 25% in
aggregate principal amount of the Outstanding Securities may declare the
principal of all the Securities to be due and payable immediately, by a notice
in writing to the Company (and to the Trustee if given by Holders), and upon any
such declaration such principal (and premium, if any) and any accrued interest
shall become immediately due and payable. If an Event of Default specified in
Section 501(8) or (9) occurs, the principal of (and premium, if any) and any
accrued interest on the Securities then Outstanding shall IPSO FACTO become
immediately due and payable without any declaration or other act on the part of
the Trustee or any Holder.
At any time after such a declaration of acceleration has been made and
before a judgment or decree based on acceleration for payment of the money due
has been obtained by the Trustee as hereinafter provided in this Article Five,
the Holders of a majority in aggregate principal amount of the Outstanding
Securities, by written notice to the Company and the Trustee, may rescind and
annul such declaration of acceleration and its consequences if
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue interest on all Securities,
(B) the principal of (and premium, if any, on) any
Securities which have become due otherwise than by such
declaration of acceleration (including any Securities required
to have been purchased on the Purchase Date pursuant to an Offer
to Purchase made by the Company) and, to the extent that payment
of such interest is lawful, interest thereon at the rate
provided by the Securities,
(C) to the extent that payment of such interest is
lawful, interest upon overdue interest at the rate provided by
the Securities, and
(D) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and
counsel;
and
(2) all Events of Default, other than the nonpayment of the
principal of Securities which have become due solely by reason of such
declaration of acceleration, have been cured or waived as provided in
Section 513;
PROVIDED THAT, if (i) pursuant to either Section 1020(a) or 1020(b) the Other
Covenants and the Other Events of Default set forth in a Debt Offering have been
incorporated into this
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Indenture, (ii) the holders of the Debt Securities shall have caused the
acceleration of the payment thereof, (iii) the payment of the Outstanding
Securities has been accelerated based solely on an Event of Default under one or
more Applicable Default Provisions (as defined in Section 1020) and (iv) the
holders of the Debt Securities, prior to the Termination Date (as defined in
Section 1020), rescind and annul such acceleration of the Debt Securities, then
any such acceleration of the Outstanding Securities shall be, without further
action by the Trustees or the Holders, rescinded and annulled.
No such rescission shall affect any subsequent default or impair any
right consequent thereon.
SECTION 503. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY TRUSTEE.
The Company covenants that if
(1) default is made in the payment of any interest on any
Security when such interest becomes due and payable and such default
continues for a period of 30 days, or
(2) default is made in the payment of the principal of (or
premium, if any, on) any Security at the Maturity thereof or, with
respect to any Security required to have been purchased pursuant to an
Offer to Purchase made by the Company, at the Purchase Date thereof,
the Company shall, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such
Securities for principal (and premium, if any) and interest, and, to the extent
that payment of such interest shall be legally enforceable, interest on any
overdue principal (and premium, if any) and on any overdue interest, at the rate
provided by the Securities, and, in addition thereto, such further amount as
shall be sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand, the
Trustee, in its own name and as Trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the Company or any other obligor upon the Securities and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of
the property of the Company or any other obligor upon the Securities wherever
situated.
Subject to Section 1020, if an Event of Default occurs and is
continuing, the Trustee may in its discretion proceed to protect and enforce its
rights and the rights of the Holders by such appropriate judicial proceedings as
the Trustee shall deem most effectual to protect and enforce any such rights,
whether for the specific enforcement of any covenant or agreement in this
Indenture or in aid of the exercise of any power granted herein, or to enforce
any other proper remedy.
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SECTION 504. TRUSTEE MAY FILE PROOFS OF CLAIM.
In case of any judicial proceeding relative to the Company (or any other
obligor upon the Securities), its property or its creditors, the Trustee shall
be entitled and empowered, by intervention in such proceeding or otherwise, to
take any and all actions authorized under the Trust Indenture Act in order to
have claims of the Holders and the Trustee allowed in any such proceeding. In
particular, the Trustee shall be authorized to collect and receive any moneys or
other property payable or deliverable on any such claims and to distribute the
same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator
or other similar official in any such judicial proceeding is hereby authorized
by each Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the Holders, to
pay to the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 607.
No provision of this Indenture shall be deemed to authorize the Trustee
to authorize or consent to or accept or adopt on behalf of any Holder any plan
of reorganization, arrangement adjustment or composition affecting the
Securities or the rights of any Holder thereof or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding; PROVIDED,
HOWEVER, that the Trustee may, on behalf of the Holders, vote for the election
of a trustee in bankruptcy or similar official and may be a member of the
creditors' committee.
SECTION 505. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF SECURITIES.
All rights of action and claims under this Indenture or the Securities
may be prosecuted and enforced by the Trustee without the possession of any of
the Securities or the production thereof in any proceeding relating thereto, and
any such proceeding instituted by the Trustee shall be brought in its own name
as trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
SECTION 506. APPLICATION OF MONEY COLLECTED.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal (or premium,
if any) or interest, upon presentation of the Securities and the notation
thereon of the payment if only partially paid and upon surrender thereof if
fully paid:
FIRST: To the payment of all amounts due the Trustee under
Section 607; and
SECOND: To the payment of the amounts then due and unpaid for
principal of (and premium, if any) and interest on the Securities in
respect of which or for the benefit of which such money has been
collected, ratably, without preference or priority of any
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kind, according to the amounts due and payable on such Securities for
principal (and premium, if any) and interest, respectively.
SECTION 507. LIMITATION ON SUITS.
Subject to Section 1020, no Holder of any Security shall have any right
to institute any proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless
(1) such Holder has previously given written notice to the
Trustee of an Event of Default;
(2) the Holders of not less than 25% in aggregate principal
amount of the Outstanding Securities shall have made written request to
the Trustee to institute proceedings in respect of such Event of Default
in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such
notice, request or offer of indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written request has
been given to the Trustee during such 60 day period by the Holders of a
majority in aggregate principal amount of the Outstanding Securities;
it being understood and intended that no one or more Holders shall have any
right in any manner whatever, by virtue of, or by availing of, any provision of
this Indenture to affect, disturb or prejudice the rights of any other Holders,
or to obtain or to seek to obtain priority or preference over any other Holders
or to enforce any right under this Indenture, except in the manner herein
provided and for the equal and ratable benefit of all the Holders.
SECTION 508. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL PREMIUM AND
INTEREST.
Notwithstanding any other provision in this Indenture, the Holder of any
Security shall have the right, which is absolute and unconditional, to receive
payment of the principal of (and premium, if any) and (subject to Section 308)
interest on such Security on the respective Stated Maturities expressed in such
Security (or, in the case of redemption, on the Redemption Date or, in the case
of an Offer to Purchase made by the Company and required to be accepted as to
such Security, on the Purchase Date) and to institute suit for the enforcement
of any such payment, on or after such respective dates and such rights shall not
be impaired without the consent of such Holder.
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SECTION 509. RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders shall
be restored severally and respectively to their former positions hereunder and
thereafter all rights and remedies of the Trustee and the Holders shall continue
as though no such proceeding had been instituted.
SECTION 510. RIGHTS AND REMEDIES CUMULATIVE.
Except as otherwise provided with respect to the replacement or payment
of mutilated, destroyed, lost or stolen Securities in the last paragraph of
Section 307, no right or remedy herein conferred upon or reserved to the Trustee
or to the Holders 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, otherwise, shall not prevent the concurrent assertion
or employment of any other appropriate right or remedy.
SECTION 511. DELAY OR OMISSION NOT WAIVER.
No delay or omission of the Trustee or of any Holder of any Security to
exercise any right or remedy accruing upon any Event of Default shall impair any
such right or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by this Article Five or by
law to the Trustee or to the Holders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by the Holders, as the case
may be.
SECTION 512. CONTROL BY HOLDERS.
The Holders of a majority in aggregate principal amount of the
Outstanding Securities shall have the right to direct the time, method and place
of conducting any proceeding for any remedy available to the Trustee or
exercising any trust or power conferred on the Trustee, PROVIDED that
(1) such direction shall not be in conflict with any rule of
law or with this Indenture,
(2) the Trustee may take any other action deemed proper by
the Trustee which is not inconsistent with such direction, and
(3) subject to the provisions of Section 601, 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 not lawfully be taken or if the
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Trustee in good faith shall determine that the action or proceedings so
directed might involve the Trustee in personal liability or if the
Trustee in good faith shall so determine that the actions or
forbearances specified in or pursuant to such direction shall be unduly
prejudicial to the interest of holders of the Securities not joining in
the giving of said direction, it being understood that the Trustee shall
have no duty to ascertain whether or not such actions or forbearances
are unduly prejudicial to such holders.
SECTION 513. WAIVER OF PAST DEFAULTS.
Subject to Section 1020, the Holders of not less than a majority in
aggregate principal amount of the Outstanding Securities may on behalf of the
Holders of all the Securities waive any past default hereunder and its
consequences, except a default
(1) in the payment of the principal of (or premium, if any)
or interest on any Security (including any Security which is required to
have been purchased pursuant to an Offer to Purchase which has been made
by the Company), or
(2) in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent of the
Holder of each Outstanding Security affected.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
SECTION 514. UNDERTAKING FOR COSTS.
In any suit for the enforcement of any right or remedy under this
Indenture, or in any suit against the Trustee for any action taken, suffered or
omitted by it as Trustee, a court may require any party litigant in such suit to
file an undertaking to pay the costs of such suit, and may assess costs against
any such party litigant, in the manner and to the extent provided in the Trust
Indenture Act. This Section 514 does not apply to a suit by the Trustee, a suit
by a Holder pursuant to Section 508 or a suit by the Holders of more than 10% in
aggregate principal amount of the Securities.
SECTION 515. WAIVER OF STAY OR EXTENSION LAWS.
The Company 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 Company (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.
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ARTICLE SIX
THE TRUSTEE
SECTION 601. CERTAIN DUTIES AND RESPONSIBILITIES.
(a) The duties and responsibilities of the Trustee shall be as
provided in this Indenture and by the Trust Indenture Act. Notwithstanding the
foregoing, no provision of this Indenture shall require the Trustee to expend or
risk its own funds or otherwise incur any financial liability in the performance
of any of its duties hereunder, or in the exercise of any of its rights or
powers, if it shall have reasonable grounds for believing that repayment of such
funds or adequate indemnity against such risk or liability is not reasonably
assured to it. If a default or an Event of Default has occurred and is
continuing, the Trustee shall exercise the rights and powers vested in it by
this Indenture and use the same degree of care and skill in their exercise as a
prudent Person would exercise or use under the circumstances in the conduct of
such Person's own affairs. Whether or not therein expressly so provided, every
provision of this Indenture relating to the conduct or affecting the liability
of or affording protection to the Trustee shall be subject to the provisions of
this Section 601.
(b) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(1) this Section 601(b) does not limit the effect of Section
603;
(2) the Trustee shall not be liable for any error of
judgment made in good faith by a Trust Officer unless it is proved that
the Trustee was negligent in ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect to any
action it takes or omits to take in good faith in accordance with a
direction received by it pursuant to Section 512.
SECTION 602. NOTICE OF DEFAULTS.
The Trustee shall give the Holders notice of any default hereunder
within 90 days after the occurrence thereof as and to the extent provided by the
Trust Indenture Act. For the purpose of this Section 602, the term "default"
means any event which is, or after notice or lapse of time or both would become,
an Event of Default. Except in the case of a default or an Event of Default in
payment of principal of (and premium, if any, on) or interest on any Securities,
the Trustee may withhold the notice to the Holders if and so long as a committee
of its trust officers in good faith determines that withholding such notice is
in the interests of the Holders.
SECTION 603. CERTAIN RIGHTS OF TRUSTEE.
Subject to the provisions of Section 601:
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(a) the Trustee shall undertake to perform such duties as
are specifically set forth in this Indenture and no implied covenants or
obligations shall be read into this Indenture against the Trustee;
(b) in the absence of bad faith in its part, the Trustee may
rely and shall be protected in acting or refraining from acting upon any
resolution, certificate, Officers' Certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or
document believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(c) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order
and any resolution of the Board of Directors of the Company may be
sufficiently evidenced by a Board Resolution;
(d) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, the Trustee
(unless other evidence be herein specifically prescribed) may, in the
absence of bad faith on its part, rely upon an Officers' Certificate;
(e) before the Trustee acts or refrains from acting, the
Trustee may consult with counsel and the written advice of such counsel
or any Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon;
(f) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders pursuant to this Indenture, unless such
Holders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction;
(g) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness or
other paper or document unless requested to do so by the Holders of not
less than a majority in aggregate principal amount of the Securities
then Outstanding, but the Trustee, in its discretion, may make such
further inquiry or investigation into such facts or matters as it may
see fit, and, if the Trustee shall determine to make such further
inquiry or investigation, it shall be entitled to examine the books,
records and premises of the Company, personally or by agent or attorney;
(h) 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 and the Trustee shall not be responsible for
any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder;
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(i) the Trustee shall not be required to give any bond or
surety in respect of the performance of its powers and duties hereunder;
(j) the Trustee shall not be bound to ascertain or inquire
as to the performance or observance of any covenants, conditions or
agreements on the part of the Company, except as otherwise provided
herein, but the Trustee may require of the Company full information and
advice as to the performance of the covenants, conditions and agreements
contained herein and shall be entitled in connection herewith to examine
the books, records and premises of the Company; and
(k) except for (i) a default under Sections 501(1), (2) or
(3) hereof, or (ii) any other event of which the Trustee has "actual
knowledge" and which event, with the giving of notice or the passage of
time or both, would constitute an Event of Default under this Indenture,
the Trustee shall not be deemed to have notice of any default or Event
of Default unless specifically notified in writing of such event by the
Company or the Holders of not less than 25% in aggregate principal
amount of the Securities then Outstanding. As used herein, the term
"actual knowledge" means the actual fact or statement of knowing,
without any duty to make any investigation with regard thereto.
SECTION 604. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES.
The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Company, and the Trustee assumes no responsibility for their correctness.
The Trustee makes no representations as to the validity or sufficiency of this
Indenture or of the Securities. The Trustee shall not be accountable for the use
or application by the Company of Securities or the proceeds thereof.
SECTION 605. MAY HOLD SECURITIES.
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company, in its individual or any other
capacity, may become the owner or pledgee of Securities and, subject to Sections
608 and 613, may otherwise deal with the Company with the same rights it would
have if it were not Trustee, Authenticating Agent, Paying Agent, Security
Registrar or such other agent.
SECTION 606. MONEY HELD IN TRUST.
Money held by the Trustee in trust hereunder need not be segregated from
other funds except to the extent required by law. The Trustee shall be under no
liability for interest on any money received by it hereunder except as otherwise
agreed with the Company.
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SECTION 607. COMPENSATION AND REIMBURSEMENT.
The Company agrees
(1) to pay to the Trustee from time to time, and the Trustee
shall be entitled to, reasonable compensation for all services rendered
by it hereunder (which compensation shall not be limited by any
provision of law in regard to the compensation of a trustee of an
express trust);
(2) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in accordance
with any provision of this Indenture, including costs of collection
(including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or
willful misconduct; and
(3) to indemnify the Trustee for, and to hold it harmless
against, any loss, liability or expense incurred without negligence or
willful misconduct on its part, arising out of or in connection with the
acceptance or administration of this trust, including the costs and
expenses of defending itself against or investigating any claim or
liability in connection with the exercise or performance of any of its
powers or duties hereunder. The Trustee's costs and expenses of
enforcing this right to indemnification shall also be paid by the
Company.
The obligations of the Company under this Section 607 shall survive the
satisfaction and discharge of this Indenture and the resignation or removal of
the Trustee. As security for the performance of such obligations of the Company,
the Trustee shall have a claim prior to 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 (and premium, if any) and interest on particular
Securities. When the Trustee incurs expenses or renders services in connection
with an Event of Default specified in Article Five hereof, the expenses
(including reasonable fees and expenses of its counsel (including in-house
counsel)) and the compensation for the services in connection therewith are
intended to constitute expense of administration under any applicable bankruptcy
law.
SECTION 608. DISQUALIFICATION; CONFLICTING INTERESTS.
If the Trustee has or shall acquire a conflicting interest within the
meaning of the Trust Indenture Act, the Trustee shall either eliminate such
interest or resign, to the extent and in the manner provided by, and subject to
the provisions of, the Trust Indenture Act and this Indenture. Neither the
Company nor any Person directly or indirectly controlling, or controlled by, or
under common control with the Company shall serve as the Trustee.
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SECTION 609. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.
There shall at all times be a Trustee hereunder which shall be a Person
that is eligible pursuant to the Trust Indenture Act to act as such and has (or
in the case of a Person included in a bank holding company system, the related
bank holding company shall have) a combined capital and surplus of at least $50
million and its (or its affiliate's) corporate trust office in New York City. If
such Person publishes reports of condition at least annually, pursuant to law or
to the requirements of said supervising or examining authority, then for the
purposes of this Section 609, the combined capital and surplus of such Person
shall be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. If at any time the Trustee shall cease
to be eligible in accordance with the provisions of this Section 609, it shall
resign immediately in the manner and with the effect hereinafter specified in
this Article Six.
SECTION 610. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article Six shall become effective until the
acceptance of appointment by the successor Trustee under Section 611.
(b) The Trustee may resign at any time by giving written notice
thereof to the Company. If an instrument of acceptance by a successor Trustee
shall not have been delivered to the Trustee 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.
(c) The Trustee may be removed at any time by Act of the Holders of
a majority in principal amount of the Outstanding Securities, delivered to the
Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 608 after
written request therefor by the Company or by any Holder who has been a
bona fide Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 609
and shall fail to resign after written request therefor by the Company
or by any such Holder, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver 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, (i) the Company by a Board Resolution may remove the
Trustee, or (ii) subject to Section 514, any Holder who has been a bona fide
Holder of a Security for at least
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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.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause, the
Company, by a Board Resolution, shall promptly appoint a successor Trustee. If,
within one year after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee shall be appointed by Act of the
Holders of a majority in principal amount of the Outstanding Securities
delivered to the Company and the retiring Trustee, the successor Trustee so
appointed shall, forthwith upon its acceptance of such appointment, become the
successor Trustee and supersede the successor Trustee appointed by the Company.
If no successor Trustee shall have been so appointed by the Company or the
Holders and accepted appointment in the manner hereinafter provided, any Holder
who has been a bona fide Holder of a Security for at least six months may, on
behalf of himself and all others similarly situated, petition any court of
competent jurisdiction for the appointment of a successor Trustee.
(f) The Company shall give notice of each resignation and each
removal of the Trustee and each appointment of a successor Trustee to all
Holders in the manner provided in Section 106. Each notice shall include the
name of the successor Trustee and the address of its Corporate Trust Office.
SECTION 611. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
Every successor Trustee appointed hereunder shall execute, acknowledge
and deliver to the Company and to the retiring Trustee an instrument accepting
such appointment, and thereupon the resignation or removal of the retiring
Trustee shall become effective and such successor Trustee, without any further
act, deed or conveyance, shall become vested with all the rights, powers, trusts
and duties of the retiring Trustee; but, on request of the Company or the
successor Trustee, such retiring Trustee shall, upon payment of its charges,
execute and deliver an instrument transferring to such successor Trustee all the
rights, powers and trusts of the retiring Trustee and shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder. Upon request of any such successor Trustee, the
Company shall execute any and all instruments for more fully and certainly
vesting in and confirming to such successor Trustee all such rights, powers and
trusts.
No successor Trustee shall accept its appointment unless at the time of
such acceptance such successor Trustee shall be qualified and eligible under
this Article Six.
SECTION 612. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS.
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 all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article Six,
without the
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execution or filing of any paper or any further act on the part of any of the
parties hereto. In case any Securities shall have been authenticated, but not
delivered, by the Trustee then in office, any successor by merger, conversion or
consolidation to such authenticating Trustee may adopt such authentication and
deliver the Securities so authenticated with the same effect as if such
successor Trustee had itself authenticated such Securities.
SECTION 613. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
If and when the Trustee shall be or become a creditor, directly or
indirectly, secured or unsecured, of the Company (or any other obligor upon the
Securities), the Trustee shall be subject to the provisions of the Trust
Indenture Act regarding the collection of claims against the Company (or any
such other obligor).
SECTION 614. APPOINTMENT OF AUTHENTICATING AGENT.
The Trustee may appoint an Authenticating Agent or Agents which shall be
authorized to act on behalf of the Trustee to authenticate Securities issued
upon original issue and upon exchange, registration of transfer, partial
conversion or partial redemption or pursuant to Section 307, and Securities so
authenticated shall be entitled to the benefits of this Indenture and shall be
valid and obligatory for all purposes as if authenticated by the Trustee
hereunder. Wherever reference is made in this Indenture to the authentication
and delivery of Securities by the Trustee or the Trustee's certificate of
authentication, such reference shall be deemed to include authentication and
delivery on behalf of the Trustee by an Authenticating Agent and a certificate
of authentication executed on behalf of the Trustee by an Authenticating Agent.
Each Authenticating Agent shall be acceptable to the Company and shall at all
times be a corporation organized and doing business under the laws of the United
States of America, any State thereof or the District of Columbia, authorized
under such laws to act as Authenticating Agent, having (or in the case of a
corporation included in a bank holding company system, the related bank holding
company having) a combined capital and surplus of not less than $50 million and
subject to supervision or examination by Federal or State authority. If such
Authenticating Agent publishes reports of condition at least annually, pursuant
to law or to the requirements of said supervising or examining authority, then
for the purposes of this Section, the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time an
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, such Authenticating Agent shall resign immediately
in the manner and with the effect specified in this Section 614.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the Corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this
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Section, without the execution or filing of any paper or any further act on the
part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and to the Company. The Trustee may at any time terminate
the agency of an Authenticating Agent by giving written notice thereof to such
Authenticating Agent and to the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section 614, the Trustee may appoint a successor
Authenticating Agent which shall be acceptable to the Company and shall mail
written notice of such appointment by first-class mail, postage prepaid, to all
Holders as their names and addresses appear in the Security Register. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section 614.
The Trustee agrees to pay to each Authenticating Agent from time to time
reasonable compensation for its services under this Section 614, and the Trustee
shall be entitled to be reimbursed for such payments, subject to the provisions
of Section 607.
If an appointment is made pursuant to this Section 614, the Securities
may have endorsed thereon, in addition to the Trustee's certificate of
authentication, an alternative certificate of authentication in the following
form:
This is one of the Securities described in the within-mentioned
Indenture.
Harris Trust Company of California,
As Trustee
By:
-------------------------------------
As Authenticating Agent
By:
-------------------------------------
Authorized Officer
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF HOLDERS.
The Company will furnish or cause to be furnished to the Trustee
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(a) semi-annually, not more than 15 days after each Regular
Record Date, a list, in such form as the Trustee may reasonably require,
of the names and addresses of the Holders as of such Regular Record
Date, and
(b) at such other times as the Trustee may request in
writing, within 30 days after the receipt by the Company 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 its
capacity as Security Registrar.
SECTION 702. PRESERVATION OF INFORMATION; COMMUNICATIONS TO HOLDERS.
(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders contained in the most
recent list furnished to the Trustee as provided in Section 701 and the names
and addresses of Holders received by the Trustee in its capacity as Security
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 701 upon receipt of a new list so furnished.
(b) The rights of Holders to communicate with other Holders with
respect to their rights under this Indenture or under the Securities and the
corresponding rights and duties of the Trustee, shall be as provided by the
Trust Indenture Act.
(c) Every Holder of Securities, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor the Trustee
nor any agent of either of them shall be held accountable by reason of any
disclosure of information as to the names and addresses of Holders made pursuant
to the Trust Indenture Act.
SECTION 703. REPORTS BY TRUSTEE.
(a) The Trustee shall transmit to the Holders such reports as may be
required pursuant to the Trust Indenture Act as promptly as practicable after
each May 15 and beginning on May 15, 2000, or at such other time as may be
provided in the Trust Indenture Act and in the manner provided in the Trust
Indenture Act.
(b) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock exchange upon
which the Securities are listed, with the Commission and with the Company. The
Company will notify the Trustee when the Securities are listed on any stock
exchange.
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ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. COMPANY MAY CONSOLIDATE, ETC. ONLY ON CERTAIN TERMS.
The Company (a) shall not consolidate with or merge into any other
Person; (b) shall not permit any other Person to consolidate with or merge into
the Company; and (c) shall not, directly or indirectly, in one transaction or a
series of transactions, transfer, convey, sell, lease or otherwise dispose of
all or substantially all of the properties and assets of the Company and its
Restricted Subsidiaries, taken as a whole, to any Person; UNLESS, in any such
transaction:
(1) immediately after giving effect to such transaction and
treating any Indebtedness Incurred by the Company or a Restricted
Subsidiary of the Company as a result of such transaction as having been
Incurred by the Company or such Restricted Subsidiary at the time of
such transaction, no Event of Default, and no event which, after notice
or lapse of time, or both, would become an Event of Default, shall have
occurred and be continuing;
(2) (x) the Company is the surviving entity or (y) in the
case the Company shall consolidate with or merge into another Person or
shall directly or indirectly, in one transaction or a series of
transactions, transfer, convey, sell, lease or otherwise dispose of all
or substantially all of the properties and assets of the Company and its
Restricted Subsidiaries, taken as a whole, the Person formed by such
consolidation or into which the Company is merged or the Person which
acquires, directly or indirectly, in one transaction or a series of
transactions, by transfer, conveyance, sale, lease or other disposition
all or substantially all of the properties and assets of the Company and
its Restricted Subsidiaries, taken as a whole (for purposes of this
Article Eight, a "Successor Company"), shall be a corporation, shall be
organized and validly existing under the laws of the United States of
America, any State thereof or the District of Columbia and shall
expressly assume by an indenture supplemental hereto executed and
delivered to the Trustee, in form satisfactory to the Trustee, the due
and punctual payment of the principal of (and premium, if any) and
interest on all the Securities and the performance of every covenant of
this Indenture on the part of the Company to be performed or observed;
(3) immediately after giving effect to such transaction, and
treating any Indebtedness Incurred by the Company or any Restricted
Subsidiary as a result of such transaction as having been Incurred at
the time of such transaction, either (x) the Company or the Successor
Company would be permitted to Incur at least $1.00 of additional
Indebtedness pursuant to the first paragraph under Section 1008 or (y)
the Company's Leverage Ratio on a pro forma basis (as provided in the
definition of Leverage Ratio) is equal to or less than the Company's
Leverage Ratio immediately prior to such transaction; and
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(4) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance, transfer, lease or disposition and,
if a supplemental indenture is required in connection with such
transaction, such supplemental indenture, complies with this Article
Eight and that all conditions precedent herein provided for relating to
such transaction have been complied with, and, with respect to such
Officers' Certificate, setting forth the manner of determination of the
compliance by the Company with Clause (3) of Section 801, or, if
applicable, of the compliance by the Successor Company as required
pursuant to the foregoing.
SECTION 802. SUCCESSOR SUBSTITUTED.
Upon any consolidation of the Company with, or merger of the Company
into, any other Person or any transfer, conveyance, sale, lease or other
disposition of all or substantially all of the properties and assets of the
Company and its Restricted Subsidiaries, taken as a whole, in accordance with
Section 801, the Successor Company shall succeed to, and be substituted for, and
may exercise every right and power of, the Company under this Indenture with the
same effect as if such successor Person had been named as the Company herein and
thereafter; PROVIDED, that the predecessor Person, except in the case of a
lease, shall be relieved of all obligations and covenants under this Indenture
and the Securities.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.
Without the consent of any Holders, the Company, when authorized by a
Board Resolution, and the Trustee, at any time and from time to time, may enter
into one or more indentures supplemental hereto, in form satisfactory to the
Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the
Company and the assumption by any such successor of the covenants of the
Company herein and in the Securities; or
(2) to add to the covenants of the Company for the benefit
of the Holders, or to surrender any right or power herein conferred upon
the Company; or
(3) to secure the Securities pursuant to the requirements of
Section 1012 or otherwise; or
(4) to comply with any requirements of the Commission in
order to effect and maintain the qualification of this Indenture under
the Trust Indenture Act; or
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(5) to cure any ambiguity, to correct or supplement any provision
herein which may be inconsistent with any other provision herein, or to
make any other provisions with respect to matters or questions arising
under this Indenture which shall not be inconsistent with the provisions
of this Indenture, PROVIDED such action pursuant to this Clause (5)
shall not adversely affect the interests of the Holders in any material
respect;
(6) to provide for the issuance of Additional Securities
pursuant to Section 301; or
(7) to provide for amendments required by Section 1020.
SECTION 902. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.
With the consent of the Holders of not less than a majority in principal
amount of the Outstanding Securities, by Act of said Holders delivered to the
Company and the Trustee, the Company, when authorized by a Board Resolution, and
the Trustee may enter into an indenture or indentures supplemental hereto for
the purpose of adding any provisions to or changing in any manner or eliminating
any of the provisions of this Indenture or of modifying in any manner the rights
of the Holders under this Indenture; PROVIDED, HOWEVER, that no such
supplemental indenture shall, without the consent of the Holder of each
Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or any
installment of interest on, any Security, or reduce the principal amount
thereof or the rate of interest thereon or any premium payable thereon,
or change the place of payment where, or the coin or currency (or
Additional Securities if permitted hereunder) in which, the principal
of, or any premium or the interest on any Security is payable, or impair
the right to institute suit for the enforcement of any such payment on
or with respect to any Security (or, in the case of redemption, on or
after the Redemption Date or, in the case of an Offer to Purchase which
has been made, on or after the applicable Purchase Date), or
(2) subject to Section 1020, reduce the percentage in
aggregate principal amount of the Outstanding Securities, the consent of
whose Holders is required to amend this Indenture or for any such
supplemental indenture, or the consent of whose Holders is required for
any waiver (of compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences) provided for in this
Indenture, or
(3) modify any of the provisions of this Section 902,
Section 513 or Section 1018, except to increase any percentage specified
in any such provision or to provide that certain other provisions of
this Indenture cannot be modified or waived without the consent of the
Holder of each Outstanding Security affected thereby, or
(4) modify any of the provisions of this Indenture relating
to the subordination of the Securities in a manner adverse to the
Holders, or
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(5) following the mailing of an Offer with respect to an
Offer to Purchase pursuant to Sections 1014, 1015 or 1016, modify the
provisions of this Indenture with respect to such Offer to Purchase in a
manner adverse to such Holder.
Notice shall be given to all Holders and the Trustee at least 10
Business Days prior to the adoption of any proposed amendment pursuant to this
Section 902. It shall not be necessary for any Act of Holders under this Section
902 to approve the particular form of any proposed supplemental indenture, but
it shall be sufficient if such Act shall approve the substance thereof.
SECTION 903. EXECUTION OF SUPPLEMENTAL INDENTURES.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article Nine or the modifications
thereby of the trusts created by this Indenture, the Trustee shall be entitled
to receive, and (subject to Section 601) shall be fully protected in relying
upon, an Opinion of Counsel stating that the execution of such supplemental
indenture is authorized pursuant to, is permitted by, and that all conditions
precedent have been met under, this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
SECTION 904. EFFECT OF SUPPLEMENTAL INDENTURES.
Upon the execution of any supplemental indenture under this Article
Nine, this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all purposes and
every Holder of Securities theretofore or thereafter authenticated and delivered
hereunder shall be bound thereby.
SECTION 905. CONFORMITY WITH TRUST INDENTURE ACT.
Every supplemental indenture executed pursuant to this Article Nine
shall conform to the requirements of the Trust Indenture Act.
SECTION 906. REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES.
Securities authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article Nine may bear a notation in form
approved by the Trustee as to any matter provided for in such supplemental
indenture. If the Company shall so determine, new Securities so modified as to
conform, in the opinion of the Trustee and the Company, to any such supplemental
indenture may be prepared and executed by the Company and authenticated and
delivered by the Trustee in exchange for Outstanding Securities.
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SECTION 907. NOTICE OF SUPPLEMENTAL INDENTURE.
Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to Section 902, the Company shall transmit to
the Holders a notice setting forth the substance of such supplemental indenture.
ARTICLE TEN
COVENANTS
SECTION 1001. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST.
The Company will duly and punctually pay the principal of (and premium,
if any) and interest on the Securities in accordance with the terms of the
Securities and this Indenture.
SECTION 1002. MAINTENANCE OF OFFICE OR AGENCY.
The Company will maintain in the Borough of Manhattan, New York City, an
office or agency where Securities may be presented or surrendered for payment,
where Securities may be surrendered for registration of transfer or exchange and
where notices and demands to or upon the Company in respect of the Securities
and this Indenture may be served. The Company will give prompt written notice to
the Trustee of the location, and any change in the location, of such office or
agency. If at any time the Company shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee, and the Company hereby appoints the
Trustee as its agent to receive all such presentations, surrenders, notices and
demands.
The Company may also from time to time designate one or more other
offices or agencies (in or outside the Borough of Manhattan, New York City)
where the Securities may be presented or surrendered for any or all such
purposes and may from time to time rescind such designations; PROVIDED, HOWEVER,
that no such designation or rescission shall in any manner relieve the Company
of its obligation to maintain an office or agency in the Borough of Manhattan,
New York City, for such purposes. The Company will give prompt written notice to
the Trustee of any such designation or rescission and of any change in the
location of any such other office or agency.
SECTION 1003. MONEY FOR SECURITY PAYMENTS TO BE HELD IN TRUST.
Subject to the right of the Company to pay interest (including Special
Interest) in Additional Securities pursuant to Section 301, if the Company shall
at any time act as its own Paying Agent, it will, on or before each due date of
the principal of (and premium, if any) or interest on any of the Securities
segregate and hold in trust for the benefit of the Persons entitled thereto a
sum sufficient to pay the principal (and premium, if any) or interest so
becoming due (or Additional Securities if permitted hereunder) until such sums
(or Additional Securities) shall be paid to such Persons or otherwise disposed
of as herein provided and will promptly notify the Trustee of its action or
failure so to act.
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Subject to the right of the Company to pay interest (including Special
Interest) in Additional Securities pursuant to Section 301, whenever the Company
shall have one or more Paying Agents, other than the Company, it will, prior to
each due date of the principal of (and premium, if any) or interest on any
Securities, deposit with such Paying Agent(s) a sum sufficient to pay the
principal (and premium, if any) or interest so becoming due (or Additional
Securities if permitted hereunder), such sum or Additional Securities to be held
in trust for the benefit of the Persons entitled to such principal, premium or
interest, and (unless such Paying Agent(s) is the Trustee) the Company will
promptly notify the Trustee of its action or failure so to act.
The Company will cause each Paying Agent other than the Trustee to
execute and deliver to the Trustee an instrument in which such Paying Agent
shall agree with the Trustee, subject to the provisions of this Section 1003,
that such Paying Agent will:
(1) hold all sums (and Additional Securities) held by it for the
payment of the principal of (and premium, if any) or interest on Securities in
trust for the benefit of the Persons entitled thereto until such sums (and
Additional Securities) shall be paid to such Persons or otherwise disposed of as
herein provided;
(2) give the Trustee notice of any default by the Company (or any
other obligor upon the Securities) in the making of any payment of principal
(and premium, if any) or interest; and
(3) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums (and
Additional Securities) so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such sums.
Any money (and Additional Securities) deposited with the Trustee or any
Paying Agent, or then held by the Company, in trust for the payment of the
principal of (and premium, if any) or interest on any Security and remaining
unclaimed for two years after such principal (and premium, if any) or interest
has become due and payable shall be paid to the Company on Company Request, or
(if then held by the Company) shall be discharged from such trust; and the
Holder of such Security shall thereafter, as an unsecured general creditor, look
only to the Company for payment thereof, and all liability of the Trustee or
such Paying Agent with respect to such trust money, and all liability of the
Company as trustee thereof, shall thereupon cease; PROVIDED, HOWEVER, that the
Trustee or such Paying Agent, before being required to make any such repayment,
may at the expense of the Company cause to be published once, in a newspaper
published in the English language, customarily published on each Business Day
and of general circulation in New York City, notice that such money (and
Additional Securities)
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remains unclaimed and that, after a date specified therein, which shall not be
less than 30 days from the date of such publication, any unclaimed balance of
such money then remaining will be repaid to the Company.
SECTION 1004. EXISTENCE.
Subject to Article Eight, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its existence,
rights (charter and statutory) and franchises; PROVIDED, HOWEVER, that the
Company shall not be required to preserve any such right or franchise if the
Board of Directors of the Company in good faith shall determine that the
preservation thereof is no longer desirable in the conduct of the business of
the Company and that the loss thereof is not disadvantageous in any material
respect to the Holders.
SECTION 1005. MAINTENANCE OF PROPERTIES.
The Company will cause all properties used or useful in the conduct of
its business or the business of any Restricted Subsidiary of the Company to be
maintained and kept in good condition, repair and working order and supplied
with all necessary equipment and will cause to be made all necessary repairs,
renewals, replacements, betterments and improvements thereof, all as in the
judgment of the Company may be necessary so that the business carried on in
connection therewith may be properly and advantageously conducted at all times;
PROVIDED, HOWEVER, that nothing in this Section shall prevent the Company from
discontinuing the operation or maintenance of any of such properties if such
discontinuance is, as determined by the Board of Directors of the Company in
good faith, desirable in the conduct of its business or the business of any such
Restricted Subsidiary and not disadvantageous in any material respect to the
Holders.
SECTION 1006. PAYMENT OF TAXES AND OTHER CLAIMS.
The Company will pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (l) all taxes, assessments and
governmental charges levied or imposed upon the Company or any of its Restricted
Subsidiaries or upon the income, profits or property of the Company or any of
its Restricted Subsidiaries, and (2) all lawful claims for labor, materials and
supplies which, if unpaid, might by law become a lien upon the property of the
Company or any of its Restricted Subsidiaries; PROVIDED, HOWEVER, that the
Company shall not be required to pay or discharge or cause to be paid or
discharged any such tax, assessment, charge or claim whose amount, applicability
or validity is being contested in good faith by appropriate proceedings.
SECTION 1007. MAINTENANCE OF INSURANCE.
The Company shall, and shall cause its Restricted Subsidiaries to, keep
at all times all of their properties which are of an insurable nature insured
against loss or damage with insurers believed by the Company to be responsible
to the extent that property of similar character is usually so insured by
corporations similarly situated and owning like properties in accordance with
good business practice.
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SECTION 1008. LIMITATION ON CONSOLIDATED INDEBTEDNESS.
The Company shall not, and shall not permit its Restricted Subsidiaries
to, Incur any Indebtedness, except that the Company may Incur Indebtedness if:
(y) there exists no Event of Default or an event which with notice
or lapse of time or both would become an Event of Default immediately prior and
subsequent thereto, and
(z) either of the following conditions shall be met:
(A) if such Indebtedness is Incurred prior to December 31,
2003, the Company's Capitalization Ratio, after giving pro forma effect
to such Incurrence, is less than or equal to 75%, or
(B) after giving pro forma effect to such Incurrence, the
Company's Leverage Ratio on a pro forma basis would have been less than:
<TABLE>
<CAPTION>
FOR THE PERIOD RATIO
-------------- -----
<S> <C>
Prior to January 1, 2004......... 9.0 to 1.0
On or after January 1, 2004...... 8.0 to 1.0
</TABLE>
Notwithstanding the foregoing paragraph, if there exists no Event of
Default or an event which with notice or lapse of time or both would become an
Event of Default immediately prior and subsequent thereto, the Company and/or
any Restricted Subsidiary of the Company, as the case may be, may Incur the
following Indebtedness without regard to the foregoing limitations:
(i) Indebtedness evidenced by the Securities issued under
this Indenture;
(ii) Indebtedness Incurred by the Company or any Restricted
Subsidiary under one or more Credit Facilities in an aggregate principal
amount not to exceed $1.5 billion at any time outstanding under all
Credit Facilities, reduced by permanent reductions resulting from
repayment thereof due to the application of Net Cash Proceeds as set
forth in Section 1014;
(iii) Indebtedness Incurred by any Restricted Subsidiary under
any Credit Facility, PROVIDED that such Indebtedness could have been
Incurred by the Company under the first paragraph of this Section 1008;
(iv) Indebtedness of the Company or any Restricted Subsidiary
of the Company owing to the Company or any Restricted Subsidiary of the
Company ("Intercompany Indebtedness"); PROVIDED that (A) in the case of
any such Indebtedness of the Company, such obligations shall be
unsecured and subordinated in all respects to the Holders' rights
pursuant to the Securities and (B) if any event occurs that causes a
Restricted Subsidiary to no longer be a Restricted Subsidiary, then this
Clause (iv) shall no longer be applicable to all Indebtedness owed by
the Company or any of its
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other Restricted Subsidiaries to such former Restricted Subsidiary and
such event shall be deemed to be an Incurrence of such Indebtedness;
(v) Refinancing Indebtedness in respect of Indebtedness
Incurred pursuant to the first paragraph of this Section 1008, or
pursuant to this paragraph of Section 1008 (other than Clause (ii),
(iii) or (iv) thereof);
(vi) Indebtedness Incurred by the Company or any Restricted
Subsidiary of the Company under Interest Hedge Agreements to hedge
interest on permitted Indebtedness, PROVIDED, that the notional
principal amount of any such Interest Hedge Agreements does not exceed
the principal amount of Indebtedness to which such Interest Hedge
Agreements relate;
(vii) Capital Lease Obligations of the Company or any
Restricted Subsidiary of the Company, in each case incurred for the
purpose of financing all or any part of the purchase price or cost of
construction or improvement of property, plant or equipment used in the
business of the Company or such Restricted Subsidiary, which do not
exceed $25 million in the aggregate for the Company and all such
Restricted Subsidiaries at any time outstanding;
(viii) any Guarantee by any Restricted Subsidiary of any
Indebtedness Incurred under any Credit Facility in compliance with this
Section 1008;
(ix) Indebtedness (including Acquired Indebtedness) incurred
by the Company or any of its Restricted Subsidiaries after the Debenture
Issue Date to finance the construction, acquisition or improvement
(including the cost of design, development, installation or integration)
of telecommunications assets, including equipment, inventory, network
assets, Licenses or rights to use Licenses;
(x) in addition to Indebtedness permitted pursuant to clause
(ix) of this paragraph, Acquired Indebtedness incurred by the Company or
a Restricted Subsidiary of the Company in connection with the
acquisition of assets used in a Telecommunications Business or the
Capital Stock of an entity engaged in the Telecommunications Business,
PROVIDED that, on a pro forma basis after giving effect to the
Incurrence of such Indebtedness, the Company shall be able to Incur
$1.00 of additional Indebtedness pursuant to the provisions described
under the first paragraph of this Section 1008;
(xi) Indebtedness of the Company evidenced by senior notes or
senior discount notes with aggregate gross proceeds to the Company not
in excess of $300 million issued prior to January 1, 2000 (plus
additional senior notes issued in lieu of cash interest on such senior
notes or accretion on such senior discount notes, as the case may be);
(xii) Indebtedness of the Company or any of its Restricted
Subsidiaries under (or constituting reimbursement obligations with
respect to) letters of credit, performance or surety bonds or similar
instruments issued in connection with the ordinary course of a
Telecommunications Business, including letters of credit in respect of
workers'
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compensation claims or self-insurance, PROVIDED, HOWEVER that upon the
drawing of any such letter of credit or other instrument, such
obligations are reimbursed within 90 days following such drawing;
(xiii) Indebtedness arising from agreements providing for
indemnification, adjustment of purchase price or similar obligations, or
from guarantees or letters of credit, surety bonds or performance bonds
securing any obligations of the Company or any of its Restricted
Subsidiaries pursuant to such agreements, in any case Incurred in
connection with the disposition of any business, assets or Restricted
Subsidiary of the Company (other than guaranties of Indebtedness
Incurred by any Person acquiring all or any portion of such business,
assets or Restricted Subsidiary of the Company for the purpose of
financing such acquisition), in an amount not to exceed the gross
proceeds actually received by the Company or any Restricted Subsidiary
in connection with such disposition; and
(xiv) Indebtedness of the Company or any Restricted Subsidiary
of the Company, other than Indebtedness permitted pursuant to Clauses
(i) through (xiii) above, which does not exceed $50 million at any time
outstanding or committed.
SECTION 1009. LIMITATION ON PREFERRED STOCK OF RESTRICTED SUBSIDIARIES.
The Company shall not permit any Restricted Subsidiary of the Company to
create or issue any Preferred Stock except:
(i) Preferred Stock outstanding on the date of this
Indenture;
(ii) Preferred Stock issued to and held by the Company or any
Wholly Owned Restricted Subsidiary of the Company;
(iii) Preferred Stock issued by a Person prior to the time
such Person became a direct or indirect Restricted Subsidiary of the
Company;
(iv) Preferred Stock issued by a Restricted Subsidiary the
proceeds of which are used to refinance outstanding Preferred Stock of a
Restricted Subsidiary, PROVIDED that (a) the liquidation value of the
refinancing Preferred Stock does not exceed the liquidation value so
refinanced plus financing fees and other expenses associated with such
refinancing and (b) such refinancing Preferred Stock has no mandatory
redemptions prior to (and in no greater amounts than) the Preferred
Stock being refinanced; and
(v) Preferred Stock issued by a Restricted Subsidiary with a
cumulative liquidation preference in an amount which could have been
Incurred at the time of such issuance as Indebtedness under the first
paragraph of Section 1008 of this Indenture; PROVIDED that the aggregate
amount of Indebtedness evidenced by all such Preferred Stock at any time
outstanding shall not exceed $250 million (plus additional Preferred
Stock issued in lieu of cash dividends on such Preferred Stock if the
issuance of such
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additional Preferred Stock is, at the time of its issuance, permitted
under the first paragraph of Section 1008 of this Indenture).
SECTION 1010. LIMITATION ON RESTRICTED PAYMENTS.
The Company shall not, and shall not permit any Restricted Subsidiary of
the Company to, make any Restricted Payments, unless after giving effect
thereto:
(1) no Event of Default or event that with notice or lapse
of time or both would become an Event of Default shall have occurred and
is continuing;
(2) the Company would be permitted to Incur an additional
$1.00 of Indebtedness pursuant to the first paragraph of Section 1008;
and
(3) the aggregate of all Restricted Payments made on or
after the Debenture Issue Date does not exceed the sum of
(A) Cumulative Operating Cash Flow less 1.5 times
Cumulative Interest Expense;
(B) 100% of the aggregate Qualified Capital Stock
Proceeds of the Company after the Debenture Issue Date;
(C) an amount equal to the sum of (i) the net
reduction in Investments (other than reductions in Permitted
Investments and other than reductions in Investments made under
Clause (iv) of the following paragraph that did not constitute
Restricted Payments for purposes of the calculation set forth in
this first paragraph of Section 1010) in any Person resulting
from payments of interest on Indebtedness, dividends, repayments
of loans or advances, or other transfers of assets, in each case
to the Company or any Restricted Subsidiary or from the Net Cash
Proceeds from the sale of any such Investment (except, in each
case, to the extent any such proceeds or other amounts are
included in the calculation of Consolidated Net Income) and (ii)
the portion (proportionate to the Company's equity interest in
such Subsidiary) of the Fair Market Value of the net assets of
an Unrestricted Subsidiary at the time such Unrestricted
Subsidiary is designated a Restricted Subsidiary; PROVIDED,
HOWEVER, that the foregoing sum shall not exceed, in the case of
any Person (including any Unrestricted Subsidiary), the amount
of Investments previously made (and treated as a Restricted
Payment) by the Company or any Restricted Subsidiary in such
Person; and
(D) $25 million.
The foregoing provisions of the first paragraph of this Section 1010
shall not be violated, so long as no Event of Default or event which with notice
or lapse of time or both would become an Event of Default has occurred and is
continuing, by reason of:
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(i) the payment of any dividend within 60 days after
declaration thereof if at the declaration date such payment would have complied
with the foregoing provisions of the first paragraph of this Section 1010;
(ii) any Refinancing of any Indebtedness otherwise permitted
under Clause (v) of Section 1008;
(iii) the redemption, defeasance, repurchase or other
acquisition or retirement of any Capital Stock of the Company, any Capital Stock
of any Restricted Subsidiary or any Indebtedness prior to its scheduled maturity
either in exchange for or out of the net cash proceeds of the substantially
concurrent sale (other than to a Subsidiary of the Company or an employee stock
ownership plan or to a trust established by the Company or any of its
Subsidiaries for the benefit of any of their employees) of Qualified Capital
Stock of the Company (or in the case of Subordinated Indebtedness, the net cash
proceeds of the substantially concurrent Incurrence of Subordinated Indebtedness
permitted under Clause (v) of Section 1008);
(iv) Permitted Joint Venture Investments;
(v) Investments after the Debenture Issue Date (including
acquisitions of any Telecommunications Business and including Investments in
Unrestricted Subsidiaries) out of Qualified Capital Stock Proceeds from the
substantially concurrent sale (other than to a Subsidiary of the Company or an
employee stock ownership plan or to a trust established by the Company or any of
its Subsidiaries for the benefit of any of their employees) of Qualified Capital
Stock of the Company, plus an aggregate amount not to exceed $200 million, for
all such Investments made after the Debenture Issue Date in reliance upon this
Clause (v);
(vi) the redemption, defeasance, repurchase or other
acquisition or retirement of any Capital Stock of the Company held by any member
of management or employee of the Company or any Subsidiary pursuant to any
management equity subscription agreement or stock option agreement or similar
agreement, or otherwise upon their death, disability, retirement or termination
of employment or departure from the Board of Directors of the Company or any
Subsidiary; PROVIDED that the aggregate price paid for all such redeemed,
defeased, repurchased or otherwise acquired or retired Capital Stock does not
exceed $2,000,000 in any fiscal year of the Company;
(vii) the redemption, defeasance, repurchase or other
acquisition or retirement of any Capital Stock of the Company or any Restricted
Subsidiary, to the extent necessary in the good faith judgment of the Board of
Directors of the Company to prevent the loss or secure the renewal or
reinstatement of any material license or franchise held by the Company or any
Restricted Subsidiary from any governmental agency;
(viii) the repurchase of Subordinated Indebtedness at a
purchase price not greater than 101% of the principal amount thereof (plus
accrued and unpaid interest) pursuant to a mandatory offer to repurchase made
after a Change of Control, PROVIDED that the Company first makes an Offer to
Repurchase the Securities (and repurchases all tendered Securities) under this
Indenture pursuant to Section 1016; and
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(ix) Restricted Payments after the Debenture Issue Date, in
addition to Restricted Payments permitted pursuant to Clauses (i) through (viii)
of this paragraph, in the aggregate after the Debenture Issue Date not in excess
of $50 million.
None of the payments or Investments described in Clauses (ii), (vi) and (viii)
of the second paragraph of this Section 1010, as well as none of the first $100
million, in the aggregate, of the Investments made under Clause (iv) of this
paragraph, shall constitute Restricted Payments for purposes of the calculation
under the first paragraph of this Section 1010. Conversely, all of the payments
or Investments described in Clauses (i), (iii), (v), (vii) and (ix) of the
second paragraph of this Section 1010, as well as all of the Investments
described in Clause (iv) of this paragraph that are in excess of the first $100
million, in the aggregate, of the payments made under such Clause (iv), shall
constitute Restricted Payments for purposes of the calculation under the first
paragraph of this Section 1010.
SECTION 1011. LIMITATIONS CONCERNING DISTRIBUTIONS AND TRANSFERS BY RESTRICTED
SUBSIDIARIES.
The Company shall not, and shall not permit any Restricted Subsidiary of
the Company to, create or otherwise cause or suffer to exist any consensual
restriction or prohibition on the ability of any Restricted Subsidiary of the
Company (i) to pay, directly or indirectly, dividends or make any other
distributions in respect of its Capital Stock or any other ownership interest or
participation in, or measured by, its profits, to the Company or any Restricted
Subsidiary of the Company or pay any Indebtedness or other obligation owed to
the Company or any Restricted Subsidiary of the Company; (ii) to make loans or
advances to the Company or any Restricted Subsidiary of the Company; or (iii) to
transfer any of its property or assets to the Company or any Restricted
Subsidiary of the Company, except, in any such case, any restriction or
prohibition:
(a) pursuant to any agreement in effect on the Debenture Issue Date,
or
(b) pursuant to an agreement entered into after the Debenture Issue
Date relating to any Indebtedness the Incurrence of which is permitted under
this Indenture, PROVIDED, HOWEVER, that the provisions contained in such
agreement relating to such encumbrance or restriction are, taken as a whole, no
more restrictive in any material respect than those contained in the Credit
Facility as in effect on the Debenture Issue Date or are no more restrictive in
any material respect than those contained in this Indenture, or
(c) pursuant to an agreement relating to any Indebtedness of such
Restricted Subsidiary which was outstanding or committed prior to the date on
which such Restricted Subsidiary was acquired by the Company other than in
anticipation of becoming a Restricted Subsidiary, or
(d) pursuant to an agreement effecting a renewal, extension,
refinancing or refunding of any agreement described in Clauses (a) through (c)
above; PROVIDED, HOWEVER, that the provisions contained in such renewal,
extension, refinancing or refunding agreement relating to
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such encumbrance or restriction are no more restrictive in any material respect
than the provisions contained in the agreement the subject thereof, or
(e) existing under or by reason of applicable law, or
(f) customary provisions restricting subletting or assignment of
property subject to any lease governing any leasehold interest of any Restricted
Subsidiary, or
(g) purchase money obligations for property acquired in the ordinary
course of business that impose restrictions of the type referred to in Clause
(iii) of this Section 1011 on such acquired property, or
(h) restrictions of the type referred to in Clause (iii) of this
Section 1011 contained in security agreements securing Indebtedness of a
Restricted Subsidiary to the extent that such Liens were otherwise Incurred in
accordance with Section 1012 and restrict the transfer of the collateral subject
to such agreements without restricting the transfer of other property, or
(i) customary provisions in joint venture agreements and other
similar agreements entered into in the ordinary course of business.
SECTION 1012. LIMITATIONS ON LIENS.
The Company shall not, and shall not permit any Restricted Subsidiary of
the Company to, Incur or suffer to exist any Lien on or with respect to any
property or assets now owned or hereafter acquired to secure any Indebtedness
that ranks in right of payment Pari Passu with or subordinate to the Securities
without making, or causing such Restricted Subsidiary to make, effective
provision for securing the Securities (i) equally and ratably with such
Indebtedness as to such property for so long as such Indebtedness will be so
secured or (ii) in the event such Indebtedness is Indebtedness of the Company or
a Restricted Subsidiary which is subordinate in right of payment to the
Securities prior to such Indebtedness as to such property for so long as such
Indebtedness will be so secured. The foregoing restrictions shall not apply to:
(a) Liens existing on the Debenture Issue Date in respect of any
Indebtedness that exists on the Debenture Issue Date;
(b) Liens to secure Indebtedness (including without limitation
obligations in respect of any letters of credit) outstanding under any Credit
Facility;
(c) Liens in favor of the Company or Liens in favor of a Wholly
Owned Restricted Subsidiary of the Company on the assets or Capital Stock of
another Wholly Owned Restricted Subsidiary of the Company;
(d) Liens to secure Indebtedness outstanding or committed for the
purpose of financing all or any part of the purchase price or the cost of
construction or improvement of the equipment or other property subject to such
Liens; PROVIDED, HOWEVER, that (I) the principal amount of any Indebtedness
secured by such a Lien does not exceed 100% of such
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purchase price or cost, (II) such Lien does not extend to or cover any property
other than such item of property or any improvements on such item and (III) the
Incurrence of such Indebtedness is permitted by Clause (ix) or (x) of the second
paragraph of Section 1008;
(e) Liens on property existing immediately prior to the time of
acquisition thereof (and not Incurred in anticipation of such acquisition or the
financing thereof);
(f) Liens to secure Indebtedness to Refinance (or successive
Refinancings), in whole or in part, Indebtedness secured by any Lien referred to
in the foregoing Clauses (a), (c) and (d) so long as such Lien does not extend
to any other property and the principal amount of the Indebtedness so secured is
not increased except as otherwise permitted under Clause (v) of the second
paragraph of Section 1008; or
(g) Liens on any Capital Stock of any Unrestricted Subsidiary
securing Indebtedness of such Subsidiary that is Non-Recourse Debt;
(h) Liens to secure the performance of statutory obligations, surety
or appeal bonds, performance bonds or other obligations of a like nature
incurred in the ordinary course of business (other than obligations for the
payment of money);
(i) Liens for taxes, assessments or governmental charges or claims
that are not yet delinquent or that are being contested in good faith by
appropriate proceedings promptly instituted and diligently concluded, PROVIDED
that any reserve or other appropriate provision as shall be required in
conformity with GAAP shall have been made therefor;
(j) carriers', warehousemen's, mechanics', landlords',
materialmen's, repairmen's or other like Liens arising in the ordinary course of
business in respect of obligations that are not yet due, are bonded or are being
contested in good faith and by appropriate proceedings if adequate reserves with
respect thereto are maintained on the books of the Company or such Restricted
Subsidiary, as the case may be, in accordance with GAAP; and
(k) Liens securing Interest Hedge Agreements entered into in the
ordinary course of business on any property also securing the permitted
Indebtedness to which such Interest Hedge Agreements relate.
SECTION 1013. LIMITATION ON TRANSACTIONS WITH AFFILIATES AND RELATED PERSONS.
The Company shall not, and shall not permit any Restricted Subsidiary of
the Company to, enter into any transaction (including, without limitation, any
purchase, sale, lease or exchange of property or the rendering of any service)
involving aggregate consideration in excess of $1 million with or to any
Affiliate or Related Person of the Company, unless (a) such transaction is on
terms no less favorable to the Company or such Restricted Subsidiary than those
which might be obtained in arms' length transactions with a third party at the
time, (b) if such transaction involves aggregate consideration in excess of $5
million, a majority of the disinterested members of the Board of Directors of
the Company determines (which determination will be evidenced by
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a Board Resolution delivered to the Trustee) that (i) such transaction is in the
best interests of the Company or such Restricted Subsidiary and (ii) such
transaction is on terms that are no less favorable to the Company or such
Restricted Subsidiary than those which might be obtained in arm's-length
transactions with a third party at the time and (c) if such transaction involves
aggregate consideration in excess of $10 million (in addition to the provisions
of the foregoing Clause (b)) the Company receives a written opinion from an
investment banking firm of national reputation delivered to the Trustee to the
effect that such transaction is fair to the Company or such Restricted
Subsidiary from a financial point of view; PROVIDED, that that this Section 1013
shall not apply to:
(u) customary directors' fees and indemnification arrangements in
the ordinary course of business,
(v) customary payment of compensation to employees, officers or
consultants in the ordinary course of business,
(w) loans or advances to officers or employees of the Company or any
Subsidiary of the Company to pay business related travel expenses or reasonable
relocation costs of such officers or employees in connection with their
employment by the Company or any Subsidiary of the Company,
(x) transactions between or among the Company and/or its Restricted
Subsidiaries (other than a Restricted Subsidiary in which an Affiliate or
Related Person of the Company, other than a Wholly Owned Subsidiary, owns any
Capital Stock or any option, warrant or other right to purchase Capital Stock),
(y) Restricted Payments that are permitted under either paragraph of
Section 1010, and
(z) payments and other transactions contemplated by any agreement as
in effect on the Debenture Issue Date and disclosed in the Company's Form 10/A
filed with the Commission on April 13, 1999 (or not required to be disclosed
therein pursuant to the rules and forms of the Commission) or any agreement in
effect at the time that an entity becomes a Restricted Subsidiary or is merged
into the Company (and was not entered into in anticipation of such acquisition),
or any amendment thereto or replacement of such agreement (so long as any such
amendment or replacement is not disadvantageous to the Holders in any material
respect).
SECTION 1014. LIMITATION ON ASSET SALES AND SALES OF SUBSIDIARY STOCK.
The Company shall not, and shall not permit any Restricted Subsidiary of
the Company to, in one transaction or a series of related transactions, convey,
sell, transfer, assign or otherwise dispose of, directly or indirectly, any of
its property, business or assets, including any sale or other transfer or
issuance of any Capital Stock of any Restricted Subsidiary of the Company,
whether owned on the date of this Indenture or thereafter acquired that results
in aggregate net proceeds that have a Fair Market Value over $15 million (an
"Asset Sale") unless:
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(a) such Asset Sale is for Fair Market Value,
(b) at least 80% of the value of the consideration for such Asset
Sale consists of (i) cash, (ii) the assumption by the transferee (and release of
the Company or such Restricted Subsidiary, as the case may be) of Indebtedness
of the Company that ranks Pari Passu with the Securities or Indebtedness of such
Restricted Subsidiary, (iii) assets used in or equity interests of
Telecommunications Businesses or (iv) notes, obligations or other marketable
securities (collectively "Marketable Securities") that are immediately converted
into cash, PROVIDED, that neither the Company nor any of its Restricted
Subsidiaries shall be permitted to receive any assets of the types described in
Clause (iii) or (iv) above in any such Asset Sale unless an Investment in such
assets is a Permitted Investment or is permitted under the terms of Section
1010, and
(c) the Net Cash Proceeds therefrom are applied on or prior to the
date that is 365 days after the date of such Asset Sale (i) to the repayment of
any Indebtedness of such Restricted Subsidiary or (ii) to the repurchase on a
pro rata basis (based on the respective outstanding principal amounts) of (A)
the Securities pursuant to an Offer to Purchase (an "Asset Sale Offer")
described below and (B) other Indebtedness that is Pari Passu with the
Securities if such purchase is required pursuant to the terms of such Pari Passu
Indebtedness or (iii) to the purchase of assets used in or equity interests of
Telecommunications Businesses or to the purchase of such assets or equity
interests pursuant to a binding agreement to purchase such assets or equity
interests that is entered into with a Person who is neither the Company nor an
Affiliate of the Company within said 365 days and such transaction is
consummated and the Net Cash Proceeds therefrom are so applied within 18 months
after the date of such Asset Sale.
Notwithstanding the foregoing paragraph:
(i) any Restricted Subsidiary of the Company may convey,
sell, lease, transfer or otherwise dispose of any or all of its assets
(upon voluntary liquidation or otherwise) to the Company or a Wholly
Owned Restricted Subsidiary of the Company; and
(ii) any merger or consolidation of the Company, or any
direct or indirect transfer, conveyance, sale, lease or other
disposition of all or substantially all of the properties and assets of
the Company (determined on a consolidated basis, including its
Subsidiaries) in one or more related transactions to any Person shall be
governed by Article Eight and this Section 1014 shall not apply.
The Company may defer an Asset Sale Offer until the accumulated Net Cash
Proceeds not applied to the uses set forth in Subsections (c)(i) or (c)(iii) in
the first paragraph of this Section 1014 exceeds $5 million. An Asset Sale Offer
shall remain open for a period of 20 Business Days following its commencement
and no longer, except to the extent that a longer period is required by
applicable law (the "Asset Sale Offer Period"). No later than five Business Days
after the termination of the Asset Sale Offer Period (the "Asset Sale Purchase
Date"), the Company will purchase the principal amount of Securities required to
be purchased pursuant to this Section 1014 (the "Asset Sale Offer Amount") at a
purchase price equal to 100% of the
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principal amount of the Securities plus accrued and unpaid interest to but
excluding the date of the purchase or, if less than the Asset Sale Offer Amount
has been tendered, all Securities tendered in response to the Asset Sale Offer.
Payment for any Securities so purchased will be made in the same manner as
interest payments are made.
If the Asset Sale Purchase Date is on or after a Regular Record Date and
on or before the related Interest Payment Date, any accrued and unpaid interest
will be paid to the Person in whose name a Security is registered at the close
of business on such Regular Record Date, and no additional interest will be
payable to Holders who tender Securities pursuant to the Asset Sale Offer.
On or before the Asset Sale Purchase Date, the Company will, to the
extent lawful, accept for payment, on a pro rata basis to the extent necessary,
the Asset Sale Offer Amount of Securities or portions thereof tendered pursuant
to the Asset Sale Offer, or if less than the Asset Sale Offer Amount has been
tendered, all Securities tendered, and will deliver to the Trustee an Officers'
Certificate stating that such Securities or portions thereof were accepted for
payment by the Company in accordance with the terms of this covenant. The
Company, the Depositary or the Paying Agent, as the case may be, will promptly
(but in any case not later than five days after the Asset Sale Purchase Date)
mail or deliver to each tendering Holder an amount equal to the purchase price
of the Securities tendered by such Holder and accepted by the Company for
purchase, and the Company will promptly issue a new Security, and the Trustee,
upon written request from the Company will authenticate and mail or deliver such
new Security to such Holder, in a principal amount equal to any unpurchased
portion of the Security surrendered. Any Security not so accepted will be
promptly mailed or delivered by the Company to the Holder thereof. The Company
will publicly announce the results of the Asset Sale Offer on the Asset Sale
Purchase Date.
SECTION 1015. SALE AND LEASEBACK TRANSACTIONS.
The Company shall not, and shall not permit any Restricted Subsidiary of
the Company to, enter into any Sale and Leaseback Transaction unless (i) no
Event of Default or event that, with the lapse of time or the giving of notice,
or both, would be an Event of Default then exists, (ii) the Company or such
Restricted Subsidiary would be entitled under Sections 1008 and 1012, without
being required to secure the Securities equally and ratably, to incur a Lien on
the property or asset being sold or transferred under Section 1012 to Incur and
secure Indebtedness in an amount equal to the present value of the minimum
rental payments called for during the term of the lease constituting part of
such transaction, determined in accordance with generally accepted accounting
principles, discounted at a rate that, at the inception of the lease, the lessee
would have incurred to borrow over a similar term the funds necessary to
purchase the leased assets and (iii) the Net Cash Proceeds generated by such
transaction are applied to the uses set forth in Subsection (c) of Section 1014
within the time period set forth in Section 1014.
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SECTION 1016. CHANGE OF CONTROL.
(a) Upon the occurrence of a Change in Control, each Holder of a
Security shall have the right to have such Security repurchased by the Company
on the terms and conditions set forth in this Section 1016 and this Indenture.
The Company shall, within 30 days following the date of the consummation of a
transaction resulting in a Change of Control, mail to each Holder of Securities
an Offer to Purchase all Outstanding Securities at a purchase price equal to
101% of the aggregate principal amount thereof plus accrued and unpaid interest,
if any, to but excluding the Purchase Date (a "Change of Control Offer"). A
Change of Control Offer shall remain open for a period of 20 Business Days
following its commencement and no longer, except to the extent that a longer
period is required by applicable law (the "Change of Control Offer Period"). No
later than five Business Days after the termination of the Change of Control
Offer Period (the "Change of Control Purchase Date"), the Company shall purchase
all Securities tendered in response to the Change of Control Offer. Payment for
any Securities so purchased shall be made in the same manner as interest
payments are made.
If the Change of Control Purchase Date is on or after a Regular Record
Date and on or before the related Interest Payment Date, any accrued and unpaid
interest will be paid to the Person in whose name a Security is registered at
the close of business on such Regular Record Date, and no additional interest
will be payable to Holders who tender Securities pursuant to the Change of
Control Offer.
On or before the Change of Control Purchase Date, the Company will, to
the extent lawful, accept for payment all Securities or portions thereof
tendered, and will deliver to the Trustee an Officers' Certificate stating that
such Securities or portions thereof were accepted for payment by the Company in
accordance with the terms of this covenant. The Company, the Depositary or the
Paying Agent, as the case may be, will promptly (but in any case not later than
five days after the Change of Control Purchase Date) mail or deliver to each
tendering Holder an amount equal to the purchase price of the Securities
tendered by such Holder and accepted by the Company for purchase, and the
Company will promptly issue a new Security, and the Trustee, upon written
request from the Company will authenticate and mail or deliver such new Security
to such Holder, in a principal amount equal to any unpurchased portion of the
Security surrendered. Any Security not so accepted will be promptly mailed or
delivered by the Company to the Holder thereof. The Company will publicly
announce the results of the Change of Control Offer on the Change of Control
Purchase Date.
(b) As used in this Section 1016:
"Beneficial Owner" has the meaning set forth in Rules 13d-3 and 13d-5
under the Exchange Act (as such rules are in effect on the Debenture Issue Date
whether or not applicable), except that a Person shall be deemed to have
"beneficial ownership" of all shares that any such Person has the right to
acquire, whether such right is exerciseable immediately or only after the
passage of time. "Beneficial Ownership" and "Beneficially Own" shall have
correlative meanings.
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"Change of Control" means the occurrence of any of the following:
(i) the sale, transfer, conveyance or other disposition
(other than by way of merger or consolidation), in one or a series of
related transactions, directly or indirectly, of all or substantially
all of the assets of the Company and its Subsidiaries taken as an
entirety to any "person" or "group" (as such terms are used for purposes
of Sections 13(d) and 14(d) of the Exchange Act as in effect on the
Debenture Issue Date, whether or not applicable) other than a Wholly
Owned Restricted Subsidiary of the Company;
(ii) the Company consolidates or merges with or into any
other Person, other than a consolidation or merger (a) of the Company
with or into a Wholly Owned Restricted Subsidiary of the Company or (b)
pursuant to which the outstanding Voting Stock of the Company is changed
into or exchanged for cash, securities or other property with the effect
that the Beneficial Owners of the outstanding Voting Stock of the
Company, immediately prior to such transaction, Beneficially Own,
directly or indirectly, more than 50% of the Voting Stock (measured by
voting power rather than number of shares) of the surviving corporation
immediately following such transaction;
(iii) the liquidation or dissolution of the Company or
approval by the Board of Directors of the Company of any such event;
(iv) any "person" or "group" (as such terms are used in
Sections 13(d) and 14(d) of the Exchange Act as in effect on the
Debenture Issue Date, whether or not applicable), other than a Permitted
Holder, is or becomes the Beneficial Owner, directly or indirectly, of
more than 50% of the Voting Stock (measured by voting power rather than
number of shares) of the Company, whether as a result of the issuance of
securities of the Company, any merger, consolidation, liquidation or
dissolution of the Company, any direct or indirect transfer of
securities by any Permitted Holder or otherwise; or
(v) during any period of 24 consecutive months, individuals
who at the beginning of such period constituted the Board of Directors
of the Company (together with any new directors whose election by such
Board of Directors or whose nomination for election by the stockholders
of the Company was approved by a vote of at least a majority of the
directors of the Company then still in office who were either directors
at the beginning of such period or whose election or nomination for
election was previously so approved), cease for any reason to constitute
a majority of the Board of Directors of the Company then in office.
An issuance of Voting Stock by the Company will not, of itself, constitute a
Change of Control unless the conditions specified in Clause (iv) of this
definition shall be satisfied whether by reason of such issuance or otherwise.
"Permitted Holder" means any Person that is a party to the Voting
Agreement on the Debenture Issue Date.
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"Voting Stock" of any Person as of any date means the Capital Stock of
such Person that is at the time entitled to vote in the election of the Board of
Directors of such Person.
(c) The Company will comply with any tender offer rules under the
Exchange Act which may then be applicable, including Rule 14e-l thereunder, in
connection with any Offer to Purchase (whether pursuant to Section 1014 or
Section 1015 or this Section 1016).
SECTION 1017. STATEMENT BY OFFICERS AS TO DEFAULT; COMPLIANCE CERTIFICATES.
(a) The Company shall deliver to the Trustee, within 90 days after
the end of each fiscal year of the Company ending after the date hereof an
Officers' Certificate, stating whether or not to the best knowledge of the
signers thereof the Company has performed its obligations under this Indenture
and whether or not the Company is in default in the performance and observance
of any of the terms, provisions and conditions of this Indenture and if the
Company shall be in default, specifying all such defaults and the nature and
status thereof of which they may have knowledge.
(b) The Company shall deliver to the Trustee, as soon as possible
and in any event within 10 days after the Company becomes aware or should
reasonably become aware of the occurrence of an 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, the period of existence thereof and the action that the
Company proposes to take with respect thereto.
(c) The Company shall deliver to the Trustee within 90 days after
the end of each fiscal year a written statement by the Company's independent
public accountants stating (A) that their audit examination has included a
review of the terms of this Indenture and the Securities as they relate to
accounting matters, and (B) whether, in connection with their audit examination,
any event which, with notice or the lapse of time or both, would constitute an
Event of Default has come to their attention and, if such default has come to
their attention, specifying the nature and period of the existence thereof.
SECTION 1018. WAIVER OF CERTAIN COVENANTS.
The Company may omit in any particular instance to comply with any
covenant or condition set forth in Sections 801, 1014, 1015 and 1016, if before
the time for such compliance the Holders of at least a majority in aggregate
principal amount of the Outstanding Securities shall, by Act of such Holders,
either waive such compliance in such instance or generally waive compliance with
such covenant or condition, but no such waiver shall extend to or affect such
covenant or condition except to the extent so expressly waived, and, until such
waiver shall become effective, the obligations of the Company and the duties of
the Trustee in respect of any such covenant or condition shall remain in full
force and effect; PROVIDED, HOWEVER, subject to Section 1020, with respect to an
Offer to Purchase as to which an Offer has been mailed, no such waiver may be
made or shall be effective against any Holders tendering
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Securities pursuant to such Offer, and the Company may not omit to comply with
the terms of such Offer as to such Holder.
SECTION 1019. PROVISION OF FINANCIAL INFORMATION.
The Company shall file with the Commission, and provide to the Trustee
and the Holders, annual reports and such other information, documents and other
reports, and such summaries thereof, as may be required pursuant to the Trust
Indenture Act at the times and in the manner provided pursuant to the Trust
Indenture Act; PROVIDED that whether or not the Company is subject to the
reporting requirements of Section 13 or 15(d) of the Exchange Act, the Company
shall deliver to the Trustee and to each Holder, within 15 days after it is or
would have been required to file with the Commission if the Company were subject
to the requirements of Section 13 or 15(d) of the Exchange Act:
(1) all quarterly and annual financial information that would be
required to be contained in a filing with the Commission on Forms 10-Q and 10-K
if the Company were required to file such Forms and, with respect to the annual
information only, a report thereon by the Company's certified independent
accountants; and
(2) all current reports that would be required to be filed with the
Commission on Form 8-K if the Company were required to file such reports.
The information under clause (1) will include:
(a) a "Management's Discussion and Analysis of Financial
Condition and Results of Operations" ("MD&A") that describes the financial
condition and results of operations of the Company and its consolidated
Subsidiaries; and
(b) an MD&A and other information in reasonable detail
regarding the financial condition and results of operations of the Company and
its Restricted Subsidiaries separate from the financial condition and results of
operations of the Unrestricted Subsidiaries of the Company, which other
information may be furnished either on the face of the financial statements or
in the footnotes thereto.
In addition, whether or not required by the Commission, the Company will
file a copy of all such information and reports with the Commission for public
availability (unless the Commission will not accept such a filing) within the
time periods specified in the Commission's rules and regulations and make such
information available to securities analysts and prospective investors upon
request. In addition, the Company, for so long as any Securities remain
outstanding, will furnish to the Holders and to securities analysts and
prospective investors, upon their request, the information required to be
delivered pursuant to Rule 144A(d)(4) under the Securities Act.
If the Company at any time is not subject to the reporting requirements
of Section 13 or Section 15(d) of the Exchange Act (or any successor provisions)
at any time while any Security constitutes a "restricted security" within the
meaning of Rule 144, it will take all actions
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necessary to permit resales of the Securities (or any successor securities) to
be made pursuant to Rule 144A, including furnishing to any holder of such a
security (or a beneficial interest therein), or to any prospective purchaser
designated by such holder, or to securities analysts designated by such holder,
upon the request of such holder, such financial and other information as may be
required to be delivered under paragraph (d) (4) of Rule 144A to permit such
resales and such information that would be required if the Company were subject
to the informational requirements of Sections 13 or 15(d) of the Exchange Act.
SECTION 1020. OPTION TO CONFORM TO HIGH YIELD NOTES.
(a) If, within the period expiring 120 days from the Debenture Issue
Date (such period, the "Mandatory Covenant Package Period"), the Company
effectuates a Debt Offering, the Company shall furnish to the Trustee and the
Holders of the Outstanding Securities a copy of the indenture or financing
agreement setting forth the terms of the Debt Offering as promptly as
practicable after the closing of the Debt Offering. If the Company delivers to
the Trustee and the Initial Purchaser an opinion of an investment banking firm
of recognized national standing (which investment banking firm shall be
acceptable to the Initial Purchaser, such acceptance not to be unreasonably
withheld, delayed or conditioned) to the effect that, taken as a whole, (i) the
covenants (corresponding to the Affected Covenants) of the Debt Securities (the
"Other Covenants") and (ii) the events of default (corresponding to the Affected
Events of Default) of the Debt Securities (the "Other Events of Default") are
not less favorable to the holders of such Debt Securities than the Affected
Covenants and the Affected Events of Default, then:
(i) the Other Covenants and the Other Events of Default shall
replace, without any further action or approval by the Company, the
Trustee or the Holders of the Securities (except for execution of a
supplemental indenture by the Company and the Trustee under clause (ii)
below), the Affected Covenants and the Affected Events of Default,
mutatis mutandis;
(ii) as promptly as practicable after the closing of any such
transaction, the Company and the Trustee shall execute a supplemental
indenture setting forth the Other Covenants and the Other Events of
Default (and the related definitions of defined terms utilized in such
Other Covenants and such Other Events of Default) as a restatement of
the Affected Covenants and the Affected Events of Default in this
Indenture and the form of Security, together with any other covenants of
a nature that would typically be included in indenture articles
pertaining to mergers or covenants included in the indenture or other
instrument governing the Debt Securities not corresponding to covenants
included in this Indenture and the form of Security (and, if the Debt
Securities are secured by collateral or guarantees, comparable
provisions which shall apply equally and ratably), including in each
case such conforming adjustments as may be deemed necessary or
appropriate with reference to the other provisions of this Indenture and
form of Security;
(iii) until the Termination Date, (A) there shall not exist an Event
of Default hereunder based on an Applicable Default Provision, unless,
until and for so long
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as there exists an event of default pursuant to the indenture or other
instrument governing such Debt Securities, and (B) neither the Trustee
nor the Holders of the Securities shall have any rights to declare the
principal of the Securities to be due or exercise any other remedy
hereunder based on an Event of Default under an Applicable Default
Provision unless and until the requisite holders of the Debt Securities
have so declared the principal thereof to be due or have determined to
exercise remedies thereunder following an event of default under the
indenture or other instrument governing such Debt Securities, in which
case effective at such time the Holders of the Securities shall have the
right to declare the principal hereof to be due and to exercise the
remedies hereunder in respect of such Event of Default, PROVIDED, that
this clause (iii) shall not prevent the existence of an Event of Default
(or the exercise of remedies based upon such Event of Default) that
arises under the provisions of the Indenture other than the Applicable
Default Provisions;
(iv) until the Termination Date, if and to the extent that the
holders of the Debt Securities have waived, or subsequently do waive,
any event of default (or an event or condition that upon the passage of
time or giving of notice, or both, would constitute an event of default)
pursuant to the indenture or other instrument governing such Debt
Securities, then the Holders of the Securities shall be deemed to have
likewise waived the corresponding Event of Default (or event or
condition) hereunder, PROVIDED that this clause (iv) shall not result in
the waiver of any Event of Default (or other event or condition) that
arises under provisions of the Indenture other than the Applicable
Default Provisions;
(v) if any holders of the Debt Securities receive any consent,
waiver or other fee, any increase in interest, any advanced prepayment
or redemption, any additional offer to repurchase or any advance of
payment dates in connection with any forbearance under clause (iii)
above, any waiver under clause (iv) above or any deletion of covenants
under clause (vi) below, then the Holders of the Securities shall not be
restricted under clause (iii), the Holders of the Securities shall not
be deemed to have waived the corresponding Event of Default (or event or
condition) under clause (iv) and the Indenture shall not be amended to
delete such covenants under clause (vi), as the case may be, unless the
Holders of the Securities are provided a corresponding and proportionate
fee, change or other opportunity, as applicable;
(vi) If at any time until the Termination Date, the Indenture or
other instrument governing the Debt Securities is amended, supplemented
or modified to revise the Other Covenants and Other Events of Default,
to provide covenants in addition to the provisions of the Other
Covenants and Other Events of Default as theretofore in effect, to
delete any covenants that correspond to any Affected Covenants or to
provide for any increase in interest, any advanced prepayment or
redemption, any additional offer to repurchase or any advance of payment
dates, then, and in each such case, each revised or additional covenant
set forth in such amendment,
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supplement or modification shall be incorporated into this Indenture for
the remaining term of such covenant (superseding, as long as in effect,
any corresponding predecessor covenant set forth in this Indenture),
each such deleted covenant shall be deleted from this Indenture and a
corresponding and proportionate change shall be made in the interest,
prepayment, redemption, offer to repurchase or payment dates in this
Indenture and the form of Security, in each case without any further
action or approval by the Company, the Trustee or the Holders of the
Securities, except for execution of a supplemental indenture by the
Company and the Trustee; as promptly as practicable after the
effectiveness of any such change, the Company and the Trustee shall
execute a supplemental indenture setting forth such revised or
additional covenants, such deleted covenants or such other terms (and
the related definitions of defined terms utilized in such covenants or
other terms), including such conforming adjustments as may be deemed
necessary or appropriate with reference to the other provisions of this
Indenture and the form of Security.
(vii) If at any time until the Termination Date, the Indenture or
other instrument governing the Debt Securities is amended, supplemented
or modified to provide collateral securing the Debt Securities or
guarantees securing the Debt Securities, then the Company shall make,
and cause its Restricted Subsidiary to make, effective provision for
securing the Securities equally and ratably with the Debt Securities as
to such collateral for so long as the Debt Securities will be so secured
and the Company shall cause any such guarantor to guarantee equally and
ratably with the Debt Securities the payment of the Securities; as
promptly as practicable, the Company and the Trustee shall execute a
supplemental indenture providing for such collateral or guarantees,
appropriate provisions required under the Trust Indenture Act and other
customary indenture provisions for securities secured by collateral or
guarantees.
(b) If the Company shall not effectuate a Debt Offering prior to the
expiration of the Mandatory Covenant Package Period that meets the requirements
of Section 1020(a) and thereafter, the Company effectuates a Debt Offering
(whether or not such Debt Offering would meet the requirements of Section
1020(a)), the Company shall furnish to the Trustee and the Holders of the
Outstanding Securities a copy of the indenture or financing agreement setting
forth the terms of such Debt Offering as promptly as practicable after the
closing of such Debt Offering. The Holders of the Outstanding Securities shall
have the option, for a period of 90 days after the date such copy is furnished
to the Trustee and such Holders, such option to be exercised, if at all, by the
Holders of a majority of the Outstanding Securities, to elect to have the Other
Covenants and the Other Events of Default set forth in such Debt Offering to be
incorporated into this Indenture using procedures substantially identical to
those set forth in Section 1020(a), PROVIDED that, upon such election and
corresponding incorporation, the provisions of Section 1020(a)(iii), (iv), (v),
(vi) and (vii) shall also apply.
(c) The provisions of Section 1020(a) and 1020(b) shall only apply
to the first Debt Offering occurring after the Debenture Issue Date and shall
not apply to any subsequent public
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offering or private placement of senior notes or debentures by the Company
whether or not the same would constitute a Debt Offering.
(d) As used in this Section 1020:
"Affected Covenants" means the covenants set forth in Article Eight or
this Article Ten and the related definitions of defined terms utilized in such
covenants, as well as the definition of Applicable Premium and the corresponding
Change of Control redemption provisions set forth in Section 203, together with
any revised or additional covenants that become applicable under Section
1020(a)(ii), (vi) or (vii); PROVIDED, that "Affected Covenants" shall not
include the covenants set forth in Sections 1001, 1002, 1003, 1004, 1017 or 1019
or this Section 1020.
"Affected Events of Default" means the Events of Default set forth in
Section 501 and the related definitions of defined terms utilized in such Events
of Default PROVIDED, that "Affected Events of Default" shall not include the
Events of Default set forth in Section 501(1), (2), (8) or (9).
"Applicable Default Provisions" means any provisions of the Other Events
of Default (and the related definitions of defined terms utilized in such Other
Events of Default) that correspond to any of the Affected Events of Default or
are additional events of default that do not correspond to any provision in
Section 501 as in effect on the Debenture Issue Date; PROVIDED, that (i) an
Other Event of Default corresponding to Section 501(3) shall be an Applicable
Default Provision only if an event of default in the indenture governing the
Debt Securities exists based on a failure to make a required offer to purchase
or a failure to make a required purchase of Debt Securities that relates to at
least the same proportion of the Debt Securities as the proportion of Securities
subject to such a failure under this Indenture, (ii) an Other Event of Default
corresponding to Section 501(5) shall be an Applicable Default Provision only if
it relates to a covenant or agreement that is an Affected Covenant and (iii) an
Other Event of Default corresponding to Section 501(6) shall be an Applicable
Default Provision only if the Debt that has been accelerated is not the Debt
Securities.
"Termination Date" means the earliest to occur of:
(A) the fifth anniversary of the Debenture Issue Date,
(B) the first date on which either:
(i) the outstanding principal amount of the Debt
Securities is less than an amount equal to sixty-five percent
(65%) of the original principal amount of the Debt Securities
(including any additional Debt Securities paid in lieu of cash
interest) provided that such reduction is due solely to Debt
Securities that are acquired and canceled pursuant to mandatory
cash repurchase offers that are made on a pro rata basis (and on
comparable terms) to the holders of Debt Securities and the
holders of the Securities; or
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(ii) the outstanding principal amount of the Debt
Securities is less than an amount equal to eighty percent (80%)
of the original principal amount of the Debt Securities
(including any additional Debt Securities paid in lieu of cash
interest) where such reduction is due other than solely pursuant
to mandatory cash repurchases as described in clause (B)(i)
above;
(C) the first date on which more than fifteen percent (15%) of the
outstanding principal amount of the Debt Securities is held by
Affiliated Holders (other than Debt Securities held by an Affiliated
Holder that is acting in the capacity of a managing underwriter or a
placement agent pursuant to the initial distribution of the Debt
Securities);
(D) the occurrence of an Event of Default under Section 501(8) or
(9),
(E) the commencement of an exchange offer or tender offer to holders
of the Debt Securities (other than (i) a tender offer that does not
result in a Termination Date under clause (B) above or (ii) an exchange
offer analogous to the exchange offer contemplated by Section 2 of the
Debenture Exchange and Registration Rights Agreement) or
(F) the refunding, replacement or refinancing of the Debt
Securities.
SECTION 1021. PAYMENTS FOR CONSENT
Neither the Company nor any of its Subsidiaries will, directly or
indirectly, pay or cause to be paid any consideration, whether by way of
interest, fee or otherwise, to any Holder of any Securities for or as an
inducement to any consent, waiver or amendment of any of the terms or provisions
of this Indenture or the Securities unless such consideration is offered to be
paid or is paid to all Holders of the Securities that consent, waive or agree to
amend in the time frame set forth in the solicitation documents relating to such
consent, waiver or agreement.
SECTION 1022. INVESTMENT COMPANY ACT COMPLIANCE
Neither the Company nor any Restricted Subsidiary will take any action,
or otherwise permit to exist any circumstance, that would require the Company or
such Restricted Subsidiary to register as an "investment company" under the
Investment Company Act.
SECTION 1023. BUSINESS
The Company will not, and will not permit any Subsidiary to, engage in
any business other than the businesses engaged in on the date hereof or the
Telecommunications Business, except to the extent the other business is not
material to the Company and its Restricted Subsidiaries taken as a whole.
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ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. RIGHT OF REDEMPTION.
The Securities may be redeemed at the election of the Company, as a
whole or from time to time in part, at the Redemption Prices specified in the
form of Security set forth in Article Two together with accrued interest to but
excluding the Redemption Date.
SECTION 1102. APPLICABILITY OF ARTICLE ELEVEN.
Redemption of Securities at the election of the Company, as permitted by
any provision of this Indenture, shall be made in accordance with such provision
and this Article Eleven.
SECTION 1103. ELECTION TO REDEEM; NOTICE TO TRUSTEE.
The election of the Company to redeem any Securities pursuant to Section
1101 shall be evidenced by a Board Resolution. In case of any redemption at the
election of the Company of less than all the Securities, the Company shall, at
least 60 days prior to the Redemption Date fixed by the Company (unless a
shorter notice shall be satisfactory to the Trustee), notify the Trustee of such
Redemption Date and of the principal amount of Securities to be redeemed.
SECTION 1104. SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED.
If less than all the Securities are to be redeemed, the particular
Securities to be redeemed shall be selected not more than 60 days prior to the
Redemption Date by the Trustee, from the Outstanding Securities not previously
called for redemption, by prorating, as nearly as may be practicable, the
principal amount of Securities to be redeemed. In any proration pursuant to this
Section 1104, the Trustee shall make such adjustments, reallocations and
eliminations as it shall deem proper (and in compliance with the requirements of
the principal national securities exchange, if any, on which the Securities are
listed) to the end that the principal amount of Securities so prorated shall be
$1,000 or a multiple thereof, by increasing or decreasing or eliminating the
amount which would be allocable to any Holder on the basis of exact proportion
by an amount not exceeding $1,000.
The Trustee shall promptly notify the Company and each Security
Registrar 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 Securities redeemed or to be redeemed only in part, to the
portion of the principal amount of such Securities which has been or is to be
redeemed.
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SECTION 1105. NOTICE OF REDEMPTION.
Notice of redemption shall be given by first-class mail, postage
prepaid, mailed not less than 30 nor more than 60 days prior to the Redemption
Date, to each Holder of securities to be redeemed, at his address appearing in
the Security Register.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Securities are to be
redeemed, the identification (and, in the case of partial redemption,
the principal amounts) of the particular Securities to be redeemed,
(4) that on the Redemption Date the Redemption Price will
become due and payable upon each such Security to be redeemed and that
interest thereon will cease to accrue on and after said date and
(5) the place or places where such Securities are to be
surrendered for payment of the Redemption Price.
Notice of redemption of Securities to be redeemed at the election of the
Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
SECTION 1106. DEPOSIT OF REDEMPTION PRICE.
Prior to any Redemption Date, the Company shall deposit with the Trustee
or with a Paying Agent (or, if the Company is acting as its own Paying Agent,
segregate and hold in trust as provided in Section 1003) an amount of money
sufficient to pay the Redemption Price of, and (except if the Redemption Date
shall be an Interest Payment Date) accrued interest on, all the Securities which
are to be redeemed on that date.
SECTION 1107. SECURITIES PAYABLE ON REDEMPTION DATE.
If a notice of redemption has been given as aforesaid, the Securities to
be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest. Upon surrender of any
such Security for redemption in accordance with said notice, such Security shall
be paid by the Company at the Redemption Price, together with accrued interest
to the Redemption Date; PROVIDED, HOWEVER, that installments of interest whose
Stated Maturity is on or prior to the Redemption Date shall be payable to the
Holders of such Securities, or one or more Predecessor Securities, registered as
such at the close of business on the relevant Record Dates
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according to their terms and the provisions of Section 308. If any Security
called for redemption shall not be so paid upon surrender thereof for
redemption, the principal (and premium, if any) shall, until paid, bear interest
from the Redemption Date at the rate provided by the Security.
SECTION 1108. SECURITIES REDEEMED IN PART.
Any Security which is to be redeemed only in part shall be surrendered
at any office or agency of the Company designated for that purpose pursuant to
Section 1002 (with, if the Company or the Trustee so requires, due endorsement
by, or a written instrument of transfer in form satisfactory to the Company and
the Trustee duly executed by, the Holder thereof or his attorney duly authorized
in writing), and the Company shall execute, and the Trustee shall authenticate
and deliver to the Holder of such Security without service charge, a new
Security or Securities, of any authorized denomination as requested by such
Holder, in aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Security so surrendered.
ARTICLE TWELVE
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1201. COMPANY'S OPTION TO EFFECT DEFEASANCE OR COVENANT DEFEASANCE.
The Company may at its option by Board Resolution, at any time, elect to
have either Section 1202 or Section 1203 applied to the Outstanding Securities
upon compliance with the conditions set forth below in this Article Twelve.
SECTION 1202. DEFEASANCE AND DISCHARGE.
Upon the Company's exercise of the option provided in Section 1201
applicable to this Section 1202, the Company shall be deemed to have been
discharged from its obligations with respect to the Outstanding Securities on
the date the conditions set forth below are satisfied (hereinafter,
"defeasance"). For this purpose, such defeasance means that the Company shall be
deemed to have paid and discharged the entire indebtedness represented by the
Outstanding Securities, which shall thereafter be deemed to be "Outstanding"
only for the purposes of Section 1205 and the other Sections of this Indenture
referred to in Clauses (A) and (B) below, and to have satisfied all its other
obligations under such Securities and this Indenture insofar as such Securities
are concerned (and the Trustee, at the expense of the Company, shall execute
proper instruments acknowledging the same), except for the following which shall
survive until otherwise terminated or discharged hereunder: (A) the rights of
Holders of such Securities to receive, solely from the trust fund described in
Section 1204 and as more fully set forth in such Section, payments in respect of
the principal of (and premium, if any) and interest on such Securities when such
payments are due, (B) the Company's obligations with respect to such Securities
under Sections 304, 305, 306, 307, 1002 and 1003, (C) the rights, powers,
trusts, duties and immunities of the Trustee hereunder and (D) this Article
Twelve. Subject to compliance with this Article Twelve, the Company may exercise
its option under this Section 1202 notwithstanding the prior exercise of its
option under Section 1203.
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SECTION 1203. COVENANT DEFEASANCE.
Upon the Company's exercise of the option provided in Section 1201
applicable to this Section, (i) the Company shall be released from its
obligations under Sections 1005 through 1016, inclusive, and Clauses (3) and (4)
of Section 801, and (ii) the occurrence of an event specified in Sections
501(3), 501(4) (with respect to Clauses (1), (3) or (4) of Section 801), 501(5)
(with respect to any of Sections 1005 through 1016, inclusive), 501(6) and
501(7) shall not be deemed to be an Event of Default (hereinafter, "covenant
defeasance"). For this purpose, such covenant defeasance means that the Company
may omit to comply with and shall have no liability in respect of any term,
condition or limitation set forth in any such Section, Clause or Article or by
reason of any reference in any such Section, Clause or Article to any other
provision herein or in any other document, but the remainder of this Indenture
and such Securities shall be unaffected thereby.
SECTION 1204. CONDITIONS TO DEFEASANCE OR COVENANT DEFEASANCE.
The following shall be the conditions to application of either Section
1202 or Section 1203 to the then Outstanding Securities:
(1) The Company shall irrevocably have deposited or caused
to be deposited with the Trustee (or another trustee satisfying the
requirements of Section 609 who shall agree to comply with the
provisions of this Article Twelve applicable to it) as trust funds in
trust for the purpose of making the following payments, specifically
pledged as security for, and dedicated solely to, the benefit of the
Holders of such Securities, (A) money in an amount, or (B) U.S.
Government Obligations which through the scheduled payment of principal
and interest in respect thereof in accordance with their terms, without
the need for reinvestment, will provide, not later than one day before
the due date of any payment, money in an amount, or (C) 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 and discharge, and which shall
be applied by the Trustee (or other qualifying trustee) to pay and
discharge, the principal of (and premium, if any,) and each installment
of interest, if any, on the Outstanding Securities on the Stated
Maturity of such principal or installment of interest in accordance with
the terms of this Indenture and of such Securities. For this purpose,
"U.S. Government Obligations" means securities that are (x) direct
obligations of the United States of America for the payment of which its
full faith and credit is pledged or (y) obligations of a Person
controlled or supervised by and acting as an agency or instrumentality
of the United States of America the payment of which is unconditionally
guaranteed as a full faith and credit obligation by the United States of
America, which, in either case, are not callable or redeemable at the
option of the issuer thereof, and shall also include a depository
receipt issued by a bank (as defined in Section 3(a)(2) of the
Securities Act) as custodian with respect to any such U.S. Government
Obligation or a specific payment of principal of or interest on any such
U.S. Government Obligation held by such custodian for the account of the
holder of such depository receipt, PROVIDED that (except as required by
law) such custodian is not authorized to make any deduction
95
<PAGE> 103
from the amount payable to the holder of such depository receipt from
any amount received by the custodian in respect of the U.S. Government
Obligation or the specific payment of principal of or interest on the
U.S. Government Obligation evidenced by such depository receipt.
(2) In the case of an election under Section 1202, the
Company shall have delivered to the Trustee an Opinion of Counsel
stating that (x) the Company has received from, or there has been
published by, the Internal Revenue Service a ruling, or (y) since the
date of this Indenture there has been a change in the applicable federal
income tax law, in either case to the effect that, and based thereon
such opinion shall confirm that, the Holders of the Outstanding
Securities will not recognize gain or loss for federal income tax
purposes as a result of such deposit, defeasance and discharge and will
be subject to federal income tax on the same amount, in the same manner
and at the same times as would have been the case if such deposit,
defeasance and discharge had not occurred.
(3) In the case of an election under Section 1203, the
Company shall have delivered to the Trustee an Opinion of Counsel to the
effect that the Holders of the Outstanding Securities will not recognize
gain or loss for federal income tax purposes as a result of such deposit
and covenant defeasance and will be subject to federal income tax on the
same amount, in the same manner and at the same times as would have been
the case if such deposit covenant defeasance and discharge had not
occurred.
(4) The Company shall have delivered to the Trustee an
Officers' Certificate to the effect that the Securities, if then listed
on any securities exchange, will not be delisted as a result of such
deposit.
(5) Such defeasance or covenant defeasance shall not cause
the Trustee to have a conflicting interest as defined in Section 608 and
for purposes of the Trust Indenture Act with respect to any securities
of the Company.
(6) No Event of Default or event that, with notice or lapse
of time or both, would become an Event of Default shall have occurred
and be continuing on the date of such deposit or, insofar as Section
501(8) is concerned, at any time during the period ending on the 121st
day after the date of such deposit (it being understood that this
condition shall not be deemed satisfied until the expiration of such
period).
(7) Such defeasance or covenant defeasance shall not result
in a breach or violation of, or constitute a default under, any other
agreement or instrument to which the Company is a party or by which it
is bound.
(8) The Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent relating to either the defeasance under Section
1202 or the covenant defeasance under Section 1203 (as the case may be)
have been satisfied.
96
<PAGE> 104
(9) Such defeasance or covenant defeasance shall not result
in the trust arising from such deposit constituting an investment
company as defined in the Investment Company Act of 1940, as amended, or
such trust shall be qualified under such act or exempt from regulation
thereunder.
SECTION 1205. DEPOSITED MONEY AND U.S. GOVERNMENT OBLIGATIONS TO BE HELD IN
TRUST; OTHER MISCELLANEOUS PROVISIONS.
Subject to the provisions of the last paragraph of Section 1003, all
money and U.S. Government Obligations (including the proceeds thereof) deposited
with the Trustee (or other qualifying trustee -- collectively, for purposes of
this Section 1205, the "Trustee") pursuant to Section 1204 in respect of the
Securities shall be held in trust and applied by the Trustee, in accordance with
the provisions of such Securities and this Indenture, to the payment, either
directly or through any Paying Agent (including the Company acting as its own
Paying Agent) as the Trustee may determine, to the Holders of such Securities,
of all sums due and to become due thereon in respect of principal (and premium,
if any) and interest, but such money need not be segregated from other funds
except to the extent required by law.
The Company 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 1204 or the principal and interest received in
respect thereof other than any such tax, fee or other charge which by law is for
the account of the Holders of the Outstanding Securities.
Anything in this Article Twelve to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon Company
Request any money or U.S. Government Obligations held by it as provided in
Section 1204 which, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, are in excess of the amount thereof which would then
be required to be deposited to effect an equivalent defeasance or covenant
defeasance.
SECTION 1206. REINSTATEMENT.
If the Trustee or the Paying Agent is unable to apply any money in
accordance with Section 1202 or 1203 by reason of any order or judgment of any
court or governmental authority enjoining, restraining or otherwise prohibiting
such application, then the Company's obligations under this Indenture and the
Securities shall be revived and reinstated as though no deposit had occurred
pursuant to this Article Twelve until such time as the Trustee or Paying agent
is permitted to apply all such money in accordance with Section 1202 or 1203;
PROVIDED, HOWEVER, that if the Company makes any payment of principal of (and
premium, if any) or interest on any Security following the reinstatement of its
obligations, the Company shall be subrogated to the rights of the Holders of
such Securities to receive such payment from the money held by the Trustee or
the Paying Agent.
97
<PAGE> 105
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed and attested, all as of the day and year first above written.
VOICESTREAM WIRELESS CORPORATION
By: /s/ Cregg Baumbaugh
-------------------------------------
Name: Cregg Baumbaugh
Title: Executive Vice President
Attest:
/s/ Alan R. Bender, Secretary
- --------------------------------------
HARRIS TRUST COMPANY OF CALIFORNIA,
as Trustee
By: /s/ Esther Cervantes
-------------------------------------
Name: Esther Cervantes
Title: Vice President
Attest:
/s/ Kimberly A. Vann
- --------------------------------------
98
<PAGE> 106
VOICESTREAM WIRELESS CORPORATION
12% SERIES A SENIOR DEBENTURES DUE 2011
THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE OR OTHER
SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN
MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS THE TRANSACTION IS
EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT AND SUCH OTHER APPLICABLE SECURITIES LAWS. THE HOLDER OF THIS SECURITY BY
ITS ACCEPTANCE HEREOF (1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL
BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT ("RULE 144A")) OR (B)
IT IS NOT A U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN "OFFSHORE
TRANSACTION" PURSUANT TO RULE 903 OR 904 OF REGULATION S UNDER THE SECURITIES
ACT ("REGULATION S"), (2) AGREES THAT IT WILL NOT OFFER, SELL OR OTHERWISE
TRANSFER THIS SECURITY EXCEPT (A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF, (B)
PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE
SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE
PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT
OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN
THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS
AND SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE
MEANING OF REGULATION S, PURSUANT TO RULE 904 OF REGULATION S, OR (E) PURSUANT
TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT AND (3) AGREES THAT IT WILL GIVE TO EACH PERSON TO WHOM THIS
SECURITY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND;
PROVIDED THAT THE COMPANY AND THE TRUSTEE AND THE SECURITIES REGISTRAR, AS
APPLICABLE SHALL HAVE THE RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER (I)
PURSUANT TO CLAUSE (D) OR (E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL,
CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM, AND (II) IN
EACH OF THE FOREGOING CASES, TO REQUIRE THAT A CERTIFICATION OF TRANSFER IN THE
FORM APPEARING ON THE OTHER SIDE OF THIS SECURITY IS COMPLETED AND DELIVERED BY
THE TRANSFEROR TO THE COMPANY AND THE TRUSTEE, THE TRANSFER AGENT AND THE
SECURITIES REGISTRAR, AS APPLICABLE. AS USED HEREIN, THE TERMS "OFFSHORE
TRANSACTION," "UNITED STATES" AND "U.S. PERSON" HAVE THE RESPECTIVE MEANINGS
GIVEN TO THEM BY REGULATION S.
A-1
<PAGE> 107
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A
NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A
SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY BE
REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE
THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO 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.
12% SERIES A SENIOR DEBENTURES DUE 2011
No. 1 $200,000,000
CUSIP Number 928615AA1
VoiceStream Wireless Corporation, a corporation duly organized and
existing under the laws of Washington (herein called the "Company," which term
includes any successor Person under the Indenture hereinafter referred to), for
value received, hereby promises to pay to Cede & Co., Inc., or registered
assigns, the principal sum of Two Hundred Million Dollars ($200,000,000), or
such other principal amount as may be set forth in the records of the Trustee
hereinafter referred to in accordance with the Indenture, on May 15, 2011, and
to pay interest in cash thereon from May 14, 1999, semi-annually on May 15 and
November 15 in each year, commencing on November 15, 1999, at the rate of 12%
per annum, until the principal hereof is paid or made available for payment, and
(to the extent that the payment of such interest shall be legally enforceable)
at the rate of 13% per annum on any overdue principal and premium, if any, and
on any overdue installment of interest until paid, PROVIDED that if a
"Triggering Event" (as defined in the Debenture Exchange and Registration Rights
Agreement) shall occur (PROVIDED that no more than one Triggering Event shall be
deemed to be in effect at any one time), then interest will accrue (in addition
to the stated interest on this Security) (the "Step-Up") at a rate of 0.5% per
annum on the principal amount of the Securities for the period from the
occurrence of the Triggering Event until such time (the "Step-Down Date") as no
Triggering Event is in effect. Special Interest (as defined below) shall be
payable in cash semi-annually in arrears on each May 15 and November 15. For
each 90-day period that the Triggering Event
A-2
<PAGE> 108
continues, the per annum rate of such Special Interest shall increase (each such
increase, an "Additional Step-Up") by an additional 0.5% per annum, PROVIDED
that the sum of the Step-Up and all Additional Step-Ups shall in no event exceed
2.0% per annum in the aggregate. On the Step-Down Date the interest rate will be
restored to its initial rate. The Company shall provide the Trustee with written
notice of the date of any Triggering Event and the Step-Down Date. Interest
accruing as a result of the Step-Up or an Additional Step-Up is referred to
herein as "Special Interest." The interest so payable, and punctually paid or
duly provided for, on any Interest Payment Date will, as provided in such
Indenture, be paid to the Person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest, which shall be May 1 or November 1 (whether or
not a Business Day), as the case may be, next preceding such Interest Payment
Date, PROVIDED that any accrued and unpaid interest (including Special Interest)
on this Security upon the issuance of an Exchange Security in exchange for this
Security shall cease to be payable to the Holder hereof and shall be payable on
the next Interest Payment Date for such Exchange Security to the Holder thereof
on the related Regular Record Date. Any such interest not so punctually paid or
duly provided for will forthwith cease to be payable to the Holder on such
Regular Record Date and may either be paid to the Person in whose name this
Security (or one or more Predecessor Securities) is registered at the close of
business on a Special Record Date for the payment of such Defaulted Interest to
be fixed by the Trustee, notice of which shall be given to Holders of Securities
not less than 10 days prior to such Special Record Date, or be paid at any time
in any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities may be listed, and upon such notice
as may be required by such exchange, all as more fully provided in the
Indenture.
In lieu of making cash payment of interest (including any Special
Interest) due on or before May 15, 2004, the Company may at its option elect to
pay such interest, in whole or in part, by the issuance of Additional Securities
to the Holders on the respective Interest Payment Date. The principal amount of
Additional Securities issued in lieu of cash payment shall be equal to the
amount of interest payable on such Interest Payment Date (including any Special
Interest) that is not paid in cash on such date.
Subject to the preceding paragraph, payment of the principal of (and
premium, if any) and interest on this Security will be made at the Corporate
Trust Office or at the office or agency of the Company maintained for that
purpose in the Borough of Manhattan, New York City, in such coin or currency of
the United States of America as at the time of payment is legal tender for
payment of public and private debts; PROVIDED, HOWEVER, that at the option of
the Company payment of interest may be made by check mailed to the address of
the Person entitled thereto as such address shall appear in the Security
Register (or as provided in the immediately preceding paragraph, if applicable).
Reference is hereby made to the further provisions of this Security set
forth on pages A-5 to A-9 following the signature page hereof, which further
provisions shall for all purposes have the same effect as if set forth at this
place.
[Signature Page To Follow]
A-3
<PAGE> 109
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the pages following the signature page hereof by manual
signature, this Security shall not be entitled to any benefit under the
Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
Dated: May 14, 1999
VOICESTREAM WIRELESS CORPORATION
By:
-------------------------------------
Name:
Title:
Attest:
- -------------------------------------
Name:
--------------------------------
Title:
-------------------------------
[Authentication Page to Follow]
A-4
<PAGE> 110
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities referred to in the within-mentioned
Indenture.
Harris Trust Company of California,
as Trustee
By:
-------------------------------------
Authorized Officer
A-5
<PAGE> 111
This Security is one of a duly authorized issue of securities of the
Company designated as its 12% Series A Senior Debentures due 2011 (herein called
the "Securities"), issued and to be issued under an Indenture, dated as of May
14, 1999 (herein called the "Indenture"), between the Company and Harris Trust
Company of California, as Trustee (herein called the "Trustee," which term
includes any successor trustee under the Indenture), to which Indenture and all
indentures supplemental thereto reference is hereby made for a statement of the
respective rights, limitations of rights, duties and immunities thereunder of
the Company, the Trustee and the Holders of the Securities and of the terms upon
which the Securities are, and are to be, authenticated and delivered. The
Securities are limited (except as otherwise provided herein or in the Indenture
referred to above) in aggregate principal amount to $400,000,000.
On or after May 15, 2004, the Securities may be redeemed at any time at
the option of the Company, in whole or from time to time in part, at the
following Redemption Prices (expressed as percentages of the principal amount
thereof). If redeemed during the 12-month period beginning May 15 of the years
indicated,
<TABLE>
<CAPTION>
YEAR REDEMPTION PRICE
---- ----------------
<S> <C>
2004 106.000%
2005 104.500%
2006 103.000%
2007 101.500%
2008 and thereafter 100.000%
</TABLE>
together in the case of any such redemption with accrued interest to but
excluding the Redemption Date, but any interest installment whose Stated
Maturity is on or prior to such Redemption Date will be payable to the Holders
of such Securities, or one or more Predecessor Securities, of record at the
close of business on the relevant Record Dates referred to on the face hereof,
all as provided in the Indenture.
Notwithstanding the foregoing, at any time prior to May 15, 2002, the
Company may redeem up to 35% of the aggregate principal amount of Securities
(including Additional Securities) actually issued under the Indenture from the
net cash proceeds of a Qualifying Event at a Redemption Price equal to 112.0% of
the aggregate principal amount thereof, together with accrued and unpaid
interest to but excluding the Redemption Date; PROVIDED, that at least $260
million in aggregate principal amount of Securities (including Additional
Securities) remains outstanding immediately following such redemption. Any such
redemption must be made within 30 days after the related Qualifying Event.
In addition, at any time prior to May 15, 2004, the Securities may also
be redeemed at the option of the Company, in whole but not in part, upon the
occurrence of a Change of Control (but in no event may any such redemption occur
more than 90 days after the occurrence of such Change of Control) at a
redemption price equal to 100% of the principal amount thereof plus the
Applicable Premium as of, and accrued and unpaid interest, if any, to, the
Redemption Date therefor.
A-6
<PAGE> 112
Notice of any optional redemption of any Securities (or portion thereof)
will be given to the Holders at their addresses appearing in the Security
Register not less than 30 nor more than 60 days prior to the Redemption Date.
The notice of redemption shall state the Redemption Date, the Redemption Price,
if less than all the Outstanding Securities are to be redeemed, principal
amounts of the particular Securities to be redeemed, that on the Redemption Date
the Redemption Price will become due and payable upon each Security to be
redeemed and the place or places where such Securities are to be surrendered for
payment of the Redemption Price. If less than all of the Securities are to be
redeemed, the particular Securities to be redeemed shall be selected not more
than 60 days prior to the Redemption Date by the Trustee by such method as the
Trustee deems fair and appropriate.
The Securities do not have the benefit of any sinking fund obligations.
In the event of redemption or purchase pursuant to an Offer to Purchase
of this Security in part only, a new Security or Securities for the unredeemed
or unpurchased portion hereof will be issued in the name of the Holder hereof
upon the cancellation hereof.
If an Event of Default shall occur and be continuing, the principal of
all the Securities may be declared or automatically become due and payable in
the manner and with the effect provided in the Indenture.
The Indenture provides that, subject to certain conditions, if (i)
certain Net Cash Proceeds are available to the Company as a result of Asset
Sales or (ii) a Change of Control occurs, the Company shall be required to make
an Offer to Purchase for Securities.
The Indenture contains provisions for defeasance at any time of (i) the
entire indebtedness of this Security or (ii) certain restrictive covenants and
Events of Default with respect to this Security, in each case upon compliance
with certain conditions set forth therein. The Indenture permits, with certain
exceptions as therein provided, the amendment thereof and the modification of
the rights and obligations of the Company and the rights of the Holders of the
Securities under the Indenture at any time by the Company and the Trustee with
the consent of the Holders of a majority in aggregate principal amount of the
Securities at the time Outstanding. The Indenture also contains provisions
permitting the Holders of specified percentages in aggregate principal amount of
the Securities at the time Outstanding, on behalf of the Holders of all the
Securities, to waive compliance by the Company with certain provisions of the
Indenture and certain past defaults under the Indenture and their consequences.
Any such consent or waiver by the Holder of this Security shall be conclusive
and binding upon such Holder and upon all future Holders of this Security and of
any Security issued upon the registration of transfer hereof or in exchange
herefor or in lieu hereof, whether or not notation of such consent or waiver is
made upon this Security.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of (and premium, if any) and
interest on this Security at the time, place and rate, and in the coin or
currency (or Additional Securities if permitted hereunder), herein prescribed.
A-7
<PAGE> 113
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the
Corporate Trust Office or at the office or agency of the Company in the Borough
of Manhattan, New York City, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Company and the Security
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Securities, of authorized denominations
and for the same aggregate principal amount, will be issued to the designated
transferee or transferees.
The Securities are issuable only in registered form without coupons in
denominations of $1,000 and any integral multiple thereof. As provided in the
Indenture and subject to certain limitations therein set forth, Securities are
exchangeable for a like aggregate principal amount of Securities of a different
authorized denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name this Security is registered as the owner hereof for all
purposes, whether or not this Security be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
Interest on this Security shall be computed on the basis of a 360-day
year of twelve 30-day months; PROVIDED that any Special Interest shall be
computed on the basis of a 365 or 366 day year, as the case may be, and the
number of days actually elapsed.
All terms used in this Security which are not defined herein but which
are defined in the Indenture shall have the meanings assigned to them in the
Indenture. The Indenture and this Security shall be governed by and construed in
accordance with the laws of the State of New York.
A-8
<PAGE> 114
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased in its entirety by
the Company pursuant to Section 1014, 1015 or 1016 of the Indenture, check the
box:
[ ]
If you want to elect to have only a part of this Security purchased by
the Company pursuant to Section 1014, 1015 or 1016 of the Indenture, state the
amount: $_______
Dated:
Your Signature:
-------------------------
(Sign exactly as name
appears on the other side
of this Security)
Signature Guarantee:
----------------------------------------
(Signature must be guaranteed by an
eligible guarantor institution which is
a member of or participant in the
Securities Transfer Agent Medallion
Program (STAMP))
A-9
<PAGE> 115
VOICESTREAM WIRELESS CORPORATION
12% SERIES A SENIOR DEBENTURES DUE 2011
THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE OR OTHER
SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN
MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS THE TRANSACTION IS
EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT AND SUCH OTHER APPLICABLE SECURITIES LAWS. THE HOLDER OF THIS SECURITY BY
ITS ACCEPTANCE HEREOF (1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL
BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT ("RULE 144A")) OR (B)
IT IS NOT A U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN "OFFSHORE
TRANSACTION" PURSUANT TO RULE 903 OR 904 OF REGULATION S UNDER THE SECURITIES
ACT ("REGULATION S"), (2) AGREES THAT IT WILL NOT OFFER, SELL OR OTHERWISE
TRANSFER THIS SECURITY EXCEPT (A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF, (B)
PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE
SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE
PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT
OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN
THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS
AND SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE
MEANING OF REGULATION S, PURSUANT TO RULE 904 OF REGULATION S, OR (E) PURSUANT
TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT AND (3) AGREES THAT IT WILL GIVE TO EACH PERSON TO WHOM THIS
SECURITY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND;
PROVIDED THAT THE COMPANY AND THE TRUSTEE AND THE SECURITIES REGISTRAR, AS
APPLICABLE SHALL HAVE THE RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER (I)
PURSUANT TO CLAUSE (D) OR (E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL,
CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM, AND (II) IN
EACH OF THE FOREGOING CASES, TO REQUIRE THAT A CERTIFICATION OF TRANSFER IN THE
FORM APPEARING ON THE OTHER SIDE OF THIS SECURITY IS COMPLETED AND DELIVERED BY
THE TRANSFEROR TO THE COMPANY AND THE TRUSTEE, THE TRANSFER AGENT AND THE
SECURITIES REGISTRAR, AS APPLICABLE. AS USED HEREIN, THE TERMS "OFFSHORE
TRANSACTION," "UNITED STATES" AND "U.S. PERSON" HAVE THE RESPECTIVE MEANINGS
GIVEN TO THEM BY REGULATION S.
A-1
<PAGE> 116
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A
NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A
SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY BE
REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE
THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO 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.
12% SERIES A SENIOR DEBENTURES DUE 2011
No. 2 $200,000,000
CUSIP Number 928615AA1
VoiceStream Wireless Corporation, a corporation duly organized and
existing under the laws of Washington (herein called the "Company," which term
includes any successor Person under the Indenture hereinafter referred to), for
value received, hereby promises to pay to Cede & Co., Inc., or registered
assigns, the principal sum of Two Hundred Million Dollars ($200,000,000), or
such other principal amount as may be set forth in the records of the Trustee
hereinafter referred to in accordance with the Indenture, on May 15, 2011, and
to pay interest in cash thereon from May 14, 1999, semi-annually on May 15 and
November 15 in each year, commencing on November 15, 1999, at the rate of 12%
per annum, until the principal hereof is paid or made available for payment, and
(to the extent that the payment of such interest shall be legally enforceable)
at the rate of 13% per annum on any overdue principal and premium, if any, and
on any overdue installment of interest until paid, PROVIDED that if a
"Triggering Event" (as defined in the Debenture Exchange and Registration Rights
Agreement) shall occur (PROVIDED that no more than one Triggering Event shall be
deemed to be in effect at any one time), then interest will accrue (in addition
to the stated interest on this Security) (the "Step-Up") at a rate of 0.5% per
annum on the principal amount of the Securities for the period from the
occurrence of the Triggering Event until such time (the "Step-Down Date") as no
Triggering Event is in effect. Special Interest (as defined below) shall be
payable in cash semi-annually in arrears on each May 15 and November 15. For
each 90-day period that the Triggering Event
A-2
<PAGE> 117
continues, the per annum rate of such Special Interest shall increase (each such
increase, an "Additional Step-Up") by an additional 0.5% per annum, PROVIDED
that the sum of the Step-Up and all Additional Step-Ups shall in no event exceed
2.0% per annum in the aggregate. On the Step-Down Date the interest rate will be
restored to its initial rate. The Company shall provide the Trustee with written
notice of the date of any Triggering Event and the Step-Down Date. Interest
accruing as a result of the Step-Up or an Additional Step-Up is referred to
herein as "Special Interest." The interest so payable, and punctually paid or
duly provided for, on any Interest Payment Date will, as provided in such
Indenture, be paid to the Person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest, which shall be May 1 or November 1 (whether or
not a Business Day), as the case may be, next preceding such Interest Payment
Date, PROVIDED that any accrued and unpaid interest (including Special Interest)
on this Security upon the issuance of an Exchange Security in exchange for this
Security shall cease to be payable to the Holder hereof and shall be payable on
the next Interest Payment Date for such Exchange Security to the Holder thereof
on the related Regular Record Date. Any such interest not so punctually paid or
duly provided for will forthwith cease to be payable to the Holder on such
Regular Record Date and may either be paid to the Person in whose name this
Security (or one or more Predecessor Securities) is registered at the close of
business on a Special Record Date for the payment of such Defaulted Interest to
be fixed by the Trustee, notice of which shall be given to Holders of Securities
not less than 10 days prior to such Special Record Date, or be paid at any time
in any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities may be listed, and upon such notice
as may be required by such exchange, all as more fully provided in the
Indenture.
In lieu of making cash payment of interest (including any Special
Interest) due on or before May 15, 2004, the Company may at its option elect to
pay such interest, in whole or in part, by the issuance of Additional Securities
to the Holders on the respective Interest Payment Date. The principal amount of
Additional Securities issued in lieu of cash payment shall be equal to the
amount of interest payable on such Interest Payment Date (including any Special
Interest) that is not paid in cash on such date.
Subject to the preceding paragraph, payment of the principal of (and
premium, if any) and interest on this Security will be made at the Corporate
Trust Office or at the office or agency of the Company maintained for that
purpose in the Borough of Manhattan, New York City, in such coin or currency of
the United States of America as at the time of payment is legal tender for
payment of public and private debts; PROVIDED, HOWEVER, that at the option of
the Company payment of interest may be made by check mailed to the address of
the Person entitled thereto as such address shall appear in the Security
Register (or as provided in the immediately preceding paragraph, if applicable).
Reference is hereby made to the further provisions of this Security set
forth on pages A-5 to A-9 following the signature page hereof, which further
provisions shall for all purposes have the same effect as if set forth at this
place.
[Signature Page to Follow]
A-3
<PAGE> 118
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the pages following the signature page hereof by manual
signature, this Security shall not be entitled to any benefit under the
Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
Dated: May 14, 1999
VOICESTREAM WIRELESS CORPORATION
By:
-------------------------------------
Name:
Title:
Attest:
- -------------------------------------
Name:
--------------------------------
Title:
-------------------------------
[Authentication Page to Follow]
A-4
<PAGE> 119
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities referred to in the within-mentioned
Indenture.
Harris Trust Company of California,
as Trustee
By:
-------------------------------------
Authorized Officer
A-5
<PAGE> 120
This Security is one of a duly authorized issue of securities of the
Company designated as its 12% Series A Senior Debentures due 2011 (herein called
the "Securities"), issued and to be issued under an Indenture, dated as of May
14, 1999 (herein called the "Indenture"), between the Company and Harris Trust
Company of California, as Trustee (herein called the "Trustee," which term
includes any successor trustee under the Indenture), to which Indenture and all
indentures supplemental thereto reference is hereby made for a statement of the
respective rights, limitations of rights, duties and immunities thereunder of
the Company, the Trustee and the Holders of the Securities and of the terms upon
which the Securities are, and are to be, authenticated and delivered. The
Securities are limited (except as otherwise provided herein or in the Indenture
referred to above) in aggregate principal amount to $400,000,000.
On or after May 15, 2004, the Securities may be redeemed at any time at
the option of the Company, in whole or from time to time in part, at the
following Redemption Prices (expressed as percentages of the principal amount
thereof). If redeemed during the 12-month period beginning May 15 of the years
indicated,
<TABLE>
<CAPTION>
YEAR REDEMPTION PRICE
---- ----------------
<S> <C>
2004 106.000%
2005 104.500%
2006 103.000%
2007 101.500%
2008 and thereafter 100.000%
</TABLE>
together in the case of any such redemption with accrued interest to but
excluding the Redemption Date, but any interest installment whose Stated
Maturity is on or prior to such Redemption Date will be payable to the Holders
of such Securities, or one or more Predecessor Securities, of record at the
close of business on the relevant Record Dates referred to on the face hereof,
all as provided in the Indenture.
Notwithstanding the foregoing, at any time prior to May 15, 2002, the
Company may redeem up to 35% of the aggregate principal amount of Securities
(including Additional Securities) actually issued under the Indenture from the
net cash proceeds of a Qualifying Event at a Redemption Price equal to 112.0% of
the aggregate principal amount thereof, together with accrued and unpaid
interest to but excluding the Redemption Date; PROVIDED, that at least $260
million in aggregate principal amount of Securities (including Additional
Securities) remains outstanding immediately following such redemption. Any such
redemption must be made within 30 days after the related Qualifying Event.
In addition, at any time prior to May 15, 2004, the Securities may also
be redeemed at the option of the Company, in whole but not in part, upon the
occurrence of a Change of Control (but in no event may any such redemption occur
more than 90 days after the occurrence of such Change of Control) at a
redemption price equal to 100% of the principal amount thereof plus the
Applicable Premium as of, and accrued and unpaid interest, if any, to, the
Redemption Date therefor.
A-6
<PAGE> 121
Notice of any optional redemption of any Securities (or portion thereof)
will be given to the Holders at their addresses appearing in the Security
Register not less than 30 nor more than 60 days prior to the Redemption Date.
The notice of redemption shall state the Redemption Date, the Redemption Price,
if less than all the Outstanding Securities are to be redeemed, principal
amounts of the particular Securities to be redeemed, that on the Redemption Date
the Redemption Price will become due and payable upon each Security to be
redeemed and the place or places where such Securities are to be surrendered for
payment of the Redemption Price. If less than all of the Securities are to be
redeemed, the particular Securities to be redeemed shall be selected not more
than 60 days prior to the Redemption Date by the Trustee by such method as the
Trustee deems fair and appropriate.
The Securities do not have the benefit of any sinking fund obligations.
In the event of redemption or purchase pursuant to an Offer to Purchase
of this Security in part only, a new Security or Securities for the unredeemed
or unpurchased portion hereof will be issued in the name of the Holder hereof
upon the cancellation hereof.
If an Event of Default shall occur and be continuing, the principal of
all the Securities may be declared or automatically become due and payable in
the manner and with the effect provided in the Indenture.
The Indenture provides that, subject to certain conditions, if (i)
certain Net Cash Proceeds are available to the Company as a result of Asset
Sales or (ii) a Change of Control occurs, the Company shall be required to make
an Offer to Purchase for Securities.
The Indenture contains provisions for defeasance at any time of (i) the
entire indebtedness of this Security or (ii) certain restrictive covenants and
Events of Default with respect to this Security, in each case upon compliance
with certain conditions set forth therein. The Indenture permits, with certain
exceptions as therein provided, the amendment thereof and the modification of
the rights and obligations of the Company and the rights of the Holders of the
Securities under the Indenture at any time by the Company and the Trustee with
the consent of the Holders of a majority in aggregate principal amount of the
Securities at the time Outstanding. The Indenture also contains provisions
permitting the Holders of specified percentages in aggregate principal amount of
the Securities at the time Outstanding, on behalf of the Holders of all the
Securities, to waive compliance by the Company with certain provisions of the
Indenture and certain past defaults under the Indenture and their consequences.
Any such consent or waiver by the Holder of this Security shall be conclusive
and binding upon such Holder and upon all future Holders of this Security and of
any Security issued upon the registration of transfer hereof or in exchange
herefor or in lieu hereof, whether or not notation of such consent or waiver is
made upon this Security.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of (and premium, if any) and
interest on this Security at the time, place and rate, and in the coin or
currency (or Additional Securities if permitted hereunder), herein prescribed.
A-7
<PAGE> 122
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the
Corporate Trust Office or at the office or agency of the Company in the Borough
of Manhattan, New York City, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Company and the Security
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Securities, of authorized denominations
and for the same aggregate principal amount, will be issued to the designated
transferee or transferees.
The Securities are issuable only in registered form without coupons in
denominations of $1,000 and any integral multiple thereof. As provided in the
Indenture and subject to certain limitations therein set forth, Securities are
exchangeable for a like aggregate principal amount of Securities of a different
authorized denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name this Security is registered as the owner hereof for all
purposes, whether or not this Security be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
Interest on this Security shall be computed on the basis of a 360-day
year of twelve 30-day months; PROVIDED that any Special Interest shall be
computed on the basis of a 365 or 366 day year, as the case may be, and the
number of days actually elapsed.
All terms used in this Security which are not defined herein but which
are defined in the Indenture shall have the meanings assigned to them in the
Indenture. The Indenture and this Security shall be governed by and construed in
accordance with the laws of the State of New York.
A-8
<PAGE> 123
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased in its entirety by
the Company pursuant to Section 1014, 1015 or 1016 of the Indenture, check the
box:
[ ]
If you want to elect to have only a part of this Security purchased by
the Company pursuant to Section 1014, 1015 or 1016 of the Indenture, state the
amount: $_______
Dated:
Your Signature:
-------------------------
(Sign exactly as name
appears on the other side
of this Security)
Signature Guarantee:
----------------------------------------
(Signature must be guaranteed by an
eligible guarantor institution which is
a member of or participant in the
Securities Transfer Agent Medallion
Program (STAMP))
A-9
<PAGE> 1
EXHIBIT 10.46
AMENDMENT NO. 6
TO
PCS 1900 PROJECT AND SUPPLY AGREEMENT
BETWEEN
VOICESTREAM WIRELESS CORPORATION
AND
NORTEL NETWORKS INC.
This Agreement is made as of this 14th day of May, 1999 ("Effective Date No.
6"), by and between VoiceStream Wireless Corporation, a Washington corporation
with offices located at 3650 131st Avenue SE, Bellevue, Washington 98006
("Buyer") and Nortel Networks Inc. (formerly Northern Telecom Inc.), a Delaware
corporation with offices located at 2221 Lakeside Boulevard, Richardson, Texas
75082 (hereinafter referred to as "Seller").
WHEREAS, Buyer's predecessor in interest, VoiceStream Wireless Corporation
(formerly known as Western PCS Corporation, a Delaware corporation ("WPCS")) and
Seller entered into a PCS 1900 Project and Supply Agreement dated June 30, 1995
(as heretofore amended by Amendments No. 1-5, as amended hereby and as hereafter
amended the "Supply Agreement"); and
WHEREAS, on April 9th, 1999 WPCS was merged with and into Buyer in order to
effect a reincorporation of WPCS in Washington State and, accordingly, Buyer
succeeded to all of WPCS's rights and obligations under the Supply Agreement;
and
WHEREAS, Buyer and Seller now wish to further amend the Supply Agreement by
adding additional terms and conditions associated with, among other things,
Buyer's acquisition of Seller's Equipment and Services for deployment in certain
new markets and expansions of existing markets and revising the discount
structure.
NOW, THEREFORE, in consideration of the mutual covenants herein contained, Buyer
and Seller agree to amend the Supply Agreement as follows:
1. (a) Amend the definition of the term "Buyer" so that it includes not
only VoiceStream Wireless Corporation, but also any entity in which VoiceStream
Wireless Corporation owns directly or indirectly more than fifty percent (50%)
of the equity or voting power.
(b) Amend Article 1, Section 1.1 "Add-on Equipment" by deleting it in
its entirety and replacing it with the following:
1.1 "Add-on Equipment" shall mean Equipment other than the
Equipment initially provided for Buyer's Network as set
forth in Section 1.1 through
<PAGE> 2
EXHIBIT 10.46
1.5 of Annex 1 (as amended) and the Equipment provided for
the Initial Build of New Markets.
(c) Amend Article 1, Section 1.12 "Initial Network" by deleting it in
its entirety and replacing it with the following:
1.12 "Initial Network" shall mean any market other than a New
Market.
(d) Amend Article 1, by adding the following new Section 1.20, and
renumbering the remaining Sections accordingly:
1.20 "New Market" shall mean any of the following markets: (i)
the San Antonio, Texas market, (ii) the Austin, Texas
market, (iii) the Chicago, Illinois market, (iv) the
Milwaukee, Wisconsin market, (v) the Dallas, Texas market,
(vi) any other U.S. market for which Buyer acquires, after
Effective Date No. 6, a license to operate, (vii) any U.S.
market for which Buyer has a license but for which as of
Effective Date No. 6, Buyer has not constructed a System
or (viii) expansions of existing markets into BTAs in
which Buyer is not operating as of Effective Date No. 6.
The foregoing markets are referred to herein collectively
as "New Markets". Buyer and Seller shall mutually agree
upon a Statement of Work/Project Schedule (Annex 2) and an
Initial Project Schedule (Annex 9) for each New Market,
with respect to which Buyer elects to order Equipment
and/or Services from Seller. Except as expressly set forth
in Section 5.9 (as amended by this Amendment No. 6), Buyer
shall not be required to order Equipment or Services for a
New Market from Seller.
2. Amend Article 1, Section 1.36 "Term" (as heretofore amended by Amendment
No. 4) by deleting the words ...*... and replacing them with the words ...*...
3. Amend Article 1, Section 1.37 "Warranty Period" by adding the following
new Subsections:
1.37.2.1 With respect to NSS Hardware (excluding OEM
Equipment) installed after Effective Date No. 6, a period of
...*... from the date of Commissioning.
1.37.3.1 With respect to Software installed after Effective
Date No. 6, a period of ...*... from the date of Installation of
the basic operating Software onto the Hardware, which ...*...
period shall commence with Installation of each new Software
release licensed for use by Buyer.
<PAGE> 3
EXHIBIT 10.46
1.37.4.1 With respect to Merchandise installed after
Effective Date No. 6, a period of ...*... from the shipment date
of such Merchandise.
4. Amend Article 5, Section 5.9 by deleting it and restating it in its
entirety as follows:
"Buyer understands that it has a firm obligation to purchase,
license and take delivery of no less than ...*... of Equipment
and Services (net of discounts and incentives but before credits
and before Handset Funds) from Seller during the Term of this
Supply Agreement (the "Commitment"). Such Commitment includes
Buyer's award to Seller of the "Initial Build" of the ...*...
markets. For the purposes of this Supply Agreement, Initial Build
shall mean the minimum configuration of NSS and BSS Equipment
required to support commercial launch by Buyer in a market.
If funding is made available by Seller to Cook Inlet Voice Stream
PCS L.L.C. ("CIVS") per a separate financing agreement with
substantially the same terms as specified in Exhibits A and B
attached hereto (the "CIVS Facilities"), this Supply Agreement
will be deemed amended to increase the Commitment in the
following manner:
(a) If CIVS acquires the Chicago BTA license and the
Dallas BTA license, by final grant from the FCC, or
earlier than final grant at Buyer's sole discretion, then
CIVS/Buyer will award the Initial Build of the Chicago and
Dallas markets to Seller and the increase in the
Commitment is equal to x, where x equals the amount
calculated by multiplying the Applicable Percentage times
...*.... In this case, the Applicable Percentage is
calculated as (i) the amount of funds made available by
Seller under the CIVS Facilities divided by (ii) ...*...;
or
(b) If CIVS does not acquire the Chicago BTA license,
but does acquire the Dallas BTA license, by final grant
from the FCC, or earlier than final grant at Buyer's sole
discretion, then CIVS will award the Initial Build of the
Dallas market to Seller and the increase in the Commitment
is equal to x, where x equals the amount calculated by
multiplying the Applicable Percentage times ...*.... In
this case, the Applicable Percentage is calculated as (i)
the amount of funds made available by Seller under the
CIVS Facilities divided by (ii) ...*....
(c) If CIVS does not acquire the Dallas BTA license,
but does acquire the Chicago BTA license, by final grant
from the FCC, or earlier than the final grant at Buyer's
sole discretion, then CIVS/Buyer will award the Initial
Build of the Chicago market to Seller and the increase in
the Commitment is equal to x, where x equals the amount
calculated by
<PAGE> 4
EXHIBIT 10.46
multiplying the Applicable Percentage times ...*.... In
this case, the Applicable Percentage is calculated as (i)
the amount of funds made available by Seller under the
CIVS Facilities divided by (ii) ...*....
(d) If CIVS acquires neither the Chicago nor the Dallas
BTA licenses, by final grant from the FCC, then CIVS will
award the Initial Build of another combination of licenses
for BTAs or groups of BTAs and the increase in the
Commitment is equal to x, where x equals the amount
calculated by multiplying the Applicable Percentage times
...*.... In this case, the Applicable Percentage is
calculated as (i) the amount of funds made available by
Seller under the CIVS Facilities divided by (ii) ...*....
Any such increased Commitment shall be contingent on the
provision of financing by Seller, the terms of which have been
substantively agreed on as set forth in the CIVS Facilities.
The parties agree that if CIVS/Buyer fails without cause to
satisfy the Commitment applicable under clauses (a), (b), (c) or
(d) above, then Seller shall not be obligated to extend any
additional credit under the CIVS Facilities over and above the
amount of financing that would have been available under the
above ratios had such Commitment been the amount CIVS/Buyer
purchased at the time of such failure.
5. Amend Article 5, by adding the following new Subsections 5.3 and 5.4 and
renumbering the remaining Sections accordingly:
5.3 With respect to payment for Equipment shipped to New
Markets for an Initial Build, Seller shall invoice Buyer or CIVS,
as applicable, in accordance with the following schedule:
5.3.1 ...*... of the Purchase Order Price shall be invoiced on
shipment of the Equipment; and
5.3.2 ...*... of the Purchase Order Price shall be invoiced on
the date of Final Acceptance.
5.4 With respect to payment for all Purchase Orders for
Equipment for the Initial Networks which are issued after
Effective Date No. 6 and for Purchase Orders for Equipment
shipped to New Markets which are issued after the Initial Build
of such New Market, Seller shall invoice Buyer ...*... of the
Purchase Order Price upon shipment of the Equipment.
<PAGE> 5
EXHIBIT 10.46
5.4.1 Payments due under Section 5.3 and this Section 5.4 shall
be paid to Seller within thirty (30) days following the date of
Seller's invoice therefor.
6. Amend Subsection 23.1 as follows:
(a) Amend Subsection 23.1.1 by inserting the words "or
indirectly" after the word "directly" in the first sentence.
(b) Add the following new Subsections 23.1.3 and 23.1.4:
23.1.3 Seller agrees that CIVS and Cook Inlet Western Wireless
PV/SS PCS L.P. ("Cook Inlet") shall be considered a "Buyer
Affiliate" for purposes of this Supply Agreement and as such
shall be entitled to purchase Seller's Equipment and Services
pursuant to the terms and conditions of this Supply Agreement and
shall also be entitled to all prices, discounts, incentives,
credits and Handset Funds set forth in this Supply Agreement. In
this regard CIVS shall be entitled to all rights and benefits
available to Cook Inlet under this Supply Agreement and Cook
Inlet shall be entitled to all the rights and benefits available
to CIVS under this Supply Agreement. In the event entities other
than CIVS and/or Cook Inlet become Buyer Affiliates after
Effective Date No. 6, such entities may, subject to the
provisions of 23.1.4 place orders pursuant to the terms of this
Supply Agreement and shall be entitled to all prices, discounts,
Handset Funds, and incentives, with the exception of: SubSection
12.10 (as heretofore amended by Amendment No. 4), Section 1.9 and
SubSection 1.9.1 et. seq., Section 1.10 and SubSection 1.10.1 et.
seq., Section 1.11 and SubSection 1.11.1, and Section 1.14 set
forth in Annex 1 (as amended by this Amendment No. 6).
23.1.4 In the event Buyer or a Buyer Affiliate acquires any
interest in an entity which (i) as a result of or after such
acquisition qualifies as a Buyer Affiliate and (ii) has an
existing contractual agreement with Seller for the supply of GSM
infrastructure Equipment and Services, Seller agrees that such
entity may at Buyer's discretion: (a) continue to acquire
Equipment and Services under its existing contractual agreement
or (b) immediately commence purchasing Equipment and Services
pursuant to the terms and conditions of this Supply Agreement. If
Buyer elects option (b) above, such entity's existing contractual
agreement to purchase Equipment and Services shall terminate and
be of no further force or effect except with respect to
warranties and other provisions relating to Equipment or Services
purchased prior to such termination; provided, however, that
option (b) above shall not be available if the acquired entity's
existing contractual agreement with Seller contains pricing,
volume purchase and/or exclusivity terms that are tied to the
provision to such entity of Seller financing, unless applicable
commitments under such existing contractual agreement have been
met or such financing has been repaid.
<PAGE> 6
EXHIBIT 10.46
7. Amend Annex 1 by adding the following new Sections, attached hereto as
Exhibit C (it being understood that Sections 1.6 and the Initial Purchase Order
for the Equipment and Services set forth herein shall be subject to Section 17
of this Supply Agreement respecting Change Orders, including, without
limitation, Sections 17.1, 17.5 and 17.6).
8. Amend Annex 1, Section 1.7.8 (as heretofore amended by Amendment No. 3)
by inserting the words "or New Market" after the words "each MTA market" or "a
specific MTA".
9. Amend Annex 1 by adding the following new Sections 1.8.1 - 1.15:
...*...
12. Amend Annex 1, Section 2.2 (amended by Amendment No. 3) by deleting it
in its entirety and replacing it with the following new Section, attached hereto
and incorporated herein as Exhibit E.
Except as specifically modified herein, the Agreement shall in all respects
continue in full force and effect.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 6 to be
duly executed by their representatives being thereunto duly authorized.
VOICESTREAM WIRELESS CORPORATION NORTEL NETWORKS INC.
By: /s/ Bob Stapleton By: /s/ Douglas Patterson
- -------------------------------- --------------------------------
Name: Bob Stapleton Name: Douglas Patterson
- -------------------------------- --------------------------------
Title: President Title: VP, Finance
- -------------------------------- --------------------------------
Date: May 14, 1999 Date: May 12, 1999
- -------------------------------- --------------------------------
