As filed with the Securities and Exchange Commission on May 22, 1998
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-----------------------
SCHEDULE 13E-3
Rule l3e-3 Transaction Statement (Pursuant to Section
13(e) of the Securities Exchange Act of 1934)
PRICELLULAR CORPORATION
(Name of Issuer)
PriCellular Corporation
American Cellular Corporation
Spectrum Equity Investors, L.P.
Brion Applegate
(Name of Person(s) Filing Statement)
Class A Common Stock, $.01 par value
Class B Common Stock, $.01 par value
(Title of Class of Securities)
74150410
(CUSIP Number of Class of Securities)
-----------------------
<TABLE>
<S> <C> <C>
Steven Price Brion Applegate Brian McTernan
PriCellular Corporation Spectrum Equity Investors, L.P. American Cellular Corporation
711 Westchester Avenue 245 Lytton Avenue, Suite 175 1336 Basswood, Suite F
White Plains, New York 10604 Pal Alto, CA 94301 Schaumburg, Illinois 60173
(914) 422-0800 (415) 464-4600 (847) 843-9081
(Name, Address and Telephone Number of Persons Authorized to Receive Notices
and Communications on Behalf of Person(s) Filing Statement)
</TABLE>
-----------------------
Copies to:
John W. Buttrick Scott Haber
Davis Polk & Wardwell Latham & Watkins
450 Lexington Avenue 505 Montgomery Street, 19th Floor
New York, NY 10017 San Francisco, CA 94111
Telephone: (212) 450-4000 (415) 395-8137
-----------------------
May 22, 1998
(Date Information Statement First Published, Sent, or Given to Securityholders)
THIS STATEMENT IS FILED IN CONNECTION WITH (CHECK THE APPROPRIATE BOX):
a. |X| The filing of solicitation materials or an information statement
subject to Regulation 14A, Regulation 14C or Rule 13e-3(c) under the
Securities Exchange Act of 1934.
b. |_| The filing of a registration statement under the Securities Act of 1933.
c. |_| A tender offer.
d. |_| None of the above.
Check the following box if the soliciting materials or information
statement referred to in checking box (a) are preliminary copies: |X|
-----------------------
CALCULATION OF FILING FEE
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TRANSACTION VALUATION AMOUNT OF FILING FEE
- --------------------------------------------------------------------------------
$810,791,740.99(1) $162,158.35
================================================================================
(1) The amount on which the filing fee was calculated was determined as
described in PriCellular's Information Statement on Schedule 14C, which is
incorporated herein by reference.
|X| Check box if any part of the fee is offset as provided by Rule 0-11(a)(2)
and identify the filing with which the offsetting fee was previously paid.
Identify the previous filing by registration statement number, or the Form or
Schedule and the date of its filing.
1) Amount Previously Paid: $162,158.35
2) Form, Schedule or Registration Statement No.: Preliminary Schedule 14C
3) Filing Party: PriCellular Corporation
4) Date Filed: April 6, 1998
================================================================================
This Rule 13E-3 Transaction Statement (the "Schedule 13E-3") relates to the
proposed merger (the "Merger") between American Cellular Corporation ("ACC") and
PriCellular Corporation ("PriCellular" or the "Company") pursuant to an
Agreement and Plan of Merger dated as of March 6, 1998 between ACC and
PriCellular (the "Merger Agreement"). This Schedule 13E-3 is filed jointly by
PriCellular, ACC, Spectrum Equity Investors, L.P. ("Spectrum") and Mr. Brion
Applegate. By filing this Schedule 13E-3, none of the joint signatories concedes
that Rule 13e-3 under the Securities Exchange Act of 1934 is applicable to the
Merger or other transactions contemplated by the Merger Agreement.
In the Merger, ACC will merge with and into PriCellular, with PriCellular
as the surviving corporation. The surviving corporation will change its name to
"American Cellular Corporation" immediately following the Merger. Current
holders of PriCellular Class A Common Stock and Class B Common Stock will
exchange their shares for cash, at $14.00 per share (without interest) and
holders of PriCellular Series A Cumulative Convertible Preferred Stock will
receive an amount in cash equal to $14.00 (without interest) for each share of
common stock into which their preferred stock is convertible at the effective
time of the Merger. Several of PriCellular's principal stockholders (certain
members of the Price family, AT&T Wireless Services, Inc. and The Thomas H. Lee
Company) have already approved the Merger by signing a written stockholders'
consent pursuant to a voting agreement. Spectrum has also approved the Merger by
signing a written consent. Since those stockholders control more than 67% of the
fully-diluted voting power of PriCellular, no further vote is necessary to
approve the Merger.
In connection with the Merger, PriCellular has filed an Information
Statement on Schedule 14C (the "Information Statement" or the "Schedule 14C")
which is being mailed to all holders of PriCellular stock together with this
Schedule 13E-3. A copy of the Merger Agreement is attached as Exhibit A to the
Information Statement.
The cross reference sheet below is being supplied pursuant to General
Instruction F to Schedule 13E-3 and shows the location in the Schedule 14C of
the information required to be included in response to the items of this
Statement. The information in the Schedule 14C, including all Exhibits thereto,
is hereby expressly incorporated herein by reference and the responses to each
item in this Statement are qualified in their entirety by the information
contained in the Schedule 14C.
CROSS REFERENCE SHEET
Where located in
Item in Schedule 13E-3 Schedule 14C
- ----------------------- ------------------
Item 1 (a)...................... Cover Page and "THE COMPANIES"
Item 1 (b)...................... Cover Page and "MARKET PRICE OF AND DIVIDENDS
ON PRICELLULAR COMMON STOCK"
Item 1(c)....................... "MARKET PRICE OF AND DIVIDENDS ON PRICELLULAR
COMMON STOCK"
Item 1 (d)...................... "MARKET PRICE OF AND DIVIDENDS ON PRICELLULAR
COMMON STOCK"
Item 1 (e)...................... **
Item 1(f)....................... "PURCHASES OF PRICELLULAR STOCK BY ACC AND THE
COMPANY"
Item 2.......................... "THE COMPANIES," "MANAGEMENT OF PRICELLULAR"
and "MANAGEMENT OF ACC"
Item 3(a)(1).................... **
Item 3 (a)(2)................... "THE MERGER--Background of the Merger"
Item 3 (b)...................... **
Item 4(a)....................... "THE MERGER," "THE MERGER AGREEMENT," "THE
VOTING AGREEMENT" and "SUMMARY"
Item 4(b)....................... "THE MERGER - Merger Consideration"
Item 5(a)-(g)................... "THE MERGER--Conduct of Business After the
Merger," "THE MERGER--Certain Effects of the
Merger" and "THE MERGER--Merger Financing"
Item 6 (a)...................... "THE MERGER--Merger Financing" and "THE MERGER
AGREEMENT--High Yield Financing"
Item 6(b)....................... "THE MERGER--Expenses of the Transaction" and
"THE MERGER AGREEMENT--Expenses and Fees"
Item 6(c)....................... "THE MERGER--Merger Financing" and "THE MERGER
AGREEMENT--High Yield Financing"
Item 6(d)....................... **
Item 7 (a)-(c).................. "THE MERGER--Background of the Merger," "THE
MERGER--Recommendation of the PriCellular
Board; Reasons for the Merger" and "THE
MERGER--Purpose and Structure of the
Transaction; Reasons of ACC, Spectrum and
Applegate for the Merger; Fairness of the
Transaction"
Item 7 (d)...................... "THE MERGER--Recommendation of the PriCellular
Board; Reasons for the Merger," "THE
MERGER--Certain Effects of the Merger" and "THE
MERGER--Certain Federal Income Tax
Consequences"
Item 8(a)-(b)................... "THE MERGER--Recommendation of the PriCellular
Board; Reasons for the Merger," "THE
MERGER--Opinions of the Financial Advisors to
the PriCellular Board" and "THE MERGER--Purpose
and Structure of the Transaction; Reasons of
ACC, Spectrum and Applegate for the Merger;
Fairness of the Transaction"
Item 8(c)....................... "THE VOTING AGREEMENT" and "SUMMARY"
Item 8(d)...................... "THE MERGER--Recommendation of the PriCellular
Board; Reasons for the Merger" and "THE
MERGER--Opinions of the Financial Advisors to
the PriCellular Board"
Item 8(e)....................... "THE MERGER--Recommendation of the PriCellular
Board; Reasons for the Merger"
Item 8(f) **
Item 9.......................... "THE MERGER-- Recommendation of the PriCellular
Board; Reasons for the Merger," "THE
MERGER--Opinions of the Financial Advisors to
the PriCellular Board" and "THE MERGER--Risks
of Insolvency on Former Stockholders of
PriCellular"
Item 10......................... "SECURITY OWNERSHIP OF MANAGEMENT AND PRINCIPAL
STOCKHOLDERS OF PRICELLULAR" and "
Item 11......................... "THE MERGER--Interests of Certain Persons in
the Merger," "THE VOTING AGREEMENT" and "OTHER
AGREEMENTS"
Item 12(a)...................... "THE VOTING AGREEMENT"
Item 12(b)..................... "THE MERGER--Background of the Merger," "THE
MERGER--Recommendation of the PriCellular
Board; Reasons for the Merger" and "THE
MERGER--Interests of Certain Persons in the
Merger"
Item 13(a)...................... "APPRAISAL RIGHTS OF DISSENTING STOCKHOLDERS"
and Appendix E
Item 13 (b) - (c)............... **
Item 14(a)...................... "SELECTED HISTORICAL FINANCIAL INFORMATION OF
PRICELLULAR" and "MARKET PRICE OF AND DIVIDENDS
ON PRICELLULAR COMMON STOCK"
Item 14(b)...................... **
Item 15(a)...................... "THE MERGER--Interests of Certain Persons in
the Merger"
Item 15(b)...................... **
Item 16......................... "THE COMPANY," "THE MERGER," "THE MERGER
AGREEMENT," "THE VOTING AGREEMENT," "OTHER
AGREEMENTS" and "SECURITY OWNERSHIP OF
MANAGEMENT AND PRINCIPAL STOCKHOLDERS OF
PRICELLULAR"
Item 17(a)...................... *
Item 17(b)(1)................... Appendix C and Appendix D
Item 17(c)(1)................... Appendix B
Item 17(d)...................... **
Item 17(e)...................... Appendix E
Item 17 (f)..................... **
- -------------------
* The information requested by this Item is not required to be included in
the Schedule 14C.
** The Item is inapplicable or the answer thereto is in the negative.
Item 1. Issuer and Class of Securities Subject to the Transaction.
(a) The information set forth in the Information Statement on the cover
page and under the caption "THE COMPANIES" is incorporated herein by reference.
(b) The information set forth in the Information Statement on the cover
page and under the caption "MARKET PRICE OF AND DIVIDENDS ON PRICELLULAR COMMON
STOCK" is incorporated herein by reference.
(c) The information set forth in the Information Statement under the
caption "MARKET PRICE OF AND DIVIDENDS ON PRICELLULAR COMMON STOCK" is
incorporated herein by reference.
(d) The information set forth in the Information Statement under the
caption "MARKET PRICE OF AND DIVIDENDS ON PRICELLULAR COMMON STOCK" is
incorporated herein by reference.
(e) Not applicable.
(f) The information set forth in the Information Statement under the
caption "PURCHASES OF PRICELLULAR STOCK BY ACC AND THE COMPANY" is incorporated
herein by reference.
Item 2. Identity and Background.
(a)-(d) The information set forth in the Information Statement under the
captions "THE COMPANIES," "MANAGEMENT OF PRICELLULAR" and "MANAGEMENT OF ACC" is
incorporated herein by reference. One of the persons filing this statement is
the issuer of the class of equity securities which is the subject of the Rule
13e-3 transaction.
(e)-(f) None of the persons with respect to whom information is provided in
response to this Item was, during the last five years, convicted in a criminal
proceeding (excluding traffic violations or similar misdemeanors), or was,
during the last five years, a party to a civil proceeding of a judicial or
administrative body of competent jurisdiction and as a result of such proceeding
was or is subject to a judgment, decree or final order enjoining further
violations of, or prohibiting activities subject to, Federal or state securities
laws or finding any violation of such laws.
Item 3. Past Contacts, Transactions or Negotiations.
(a)(1) Not Applicable.
(a)(2) The information set forth in the Information Statement under the
caption "THE MERGER--Background of the Merger" is incorporated herein by
reference.
(b) Not applicable.
Item 4. Terms of the Transaction.
(a) The information set forth in the Information Statement under the
captions "THE MERGER," "THE MERGER AGREEMENT," "THE VOTING AGREEMENT" and
"SUMMARY" is incorporated herein by reference.
(b) The information set forth in the Information Statement under the
caption "THE MERGER-- Merger Consideration" is incorporated herein by reference.
Item 5. Plans or Proposals of the Issuer or Affiliate
(a)-(g) The information set forth in the Information Statement under the
captions "THE MERGER--Certain Effects of the Merger," "THE MERGER--Merger
Financing" and "THE MERGER--Conduct of Business After the Merger" is
incorporated herein by reference.
Item 6. Source and Amount of Funds or Other Consideration.
(a) The information set forth in the Information Statement under the
captions "THE MERGER--Merger Financing" and "THE MERGER AGREEMENT--High Yield
Financing" is incorporated herein by reference.
(b) The information set forth in the Information Statement under the
captions "THE MERGER--Expenses of the Transaction" and "THE MERGER
AGREEMENT--Expenses and Fees" is incorporated herein by reference.
(c) The information set forth in the Information Statement under the
captions "THE MERGER--Merger Financing" and "THE MERGER AGREEMENT--High Yield
Financing" is incorporated herein by reference.
(d) Not applicable.
Item 7. Purposes, Alternatives, Reasons and Effects.
(a)-(c) The information set forth in the Information Statement under the
captions "THE MERGER--Background of the Merger," "THE MERGER--Recommendation of
the PriCellular Board; Reasons for the Merger"and "THE MERGER--Purpose and
Structure of the Transaction; Reasons of ACC, Spectrum and Applegate for the
Merger; Fairness of the Transaction" is incorporated herein by reference.
(d) The information set forth in the Information Statement under the
captions "THE MERGER--Recommendation of the PriCellular Board; Reasons for the
Merger," "THE MERGER--Certain Effects of the Merger" and "THE MERGER--Certain
Federal Income Tax Consequences" is incorporated herein by reference.
Item 8. Fairness of the Transaction.
(a)-(b) The information set forth in the Information Statement under the
captions "THE MERGER--Recommendation of the PriCellular Board; Reasons for the
Merger," "THE MERGER--Opinions of the Financial Advisors to the PriCellular
Board" and "THE MERGER--Purpose and Structure of the Transaction; Reasons of
ACC, Spectrum and Applegate for the Merger; Fairness of the Transaction" is
incorporated herein by reference.
(c) The information set forth in the Information Statement under the
captions "THE VOTING AGREEMENT" and "SUMMARY" is incorporated herein by
reference.
(d) The information set forth in the Information Statement under the
captions "THE MERGER--Recommendation of the PriCellular Board; Reasons for the
Merger" and "THE MERGER--Opinions of the Financial Advisors to the PriCellular
Board" is incorporated herein by reference.
(e) The information set forth in the Information Statement under the
caption "THE MERGER--Recommendation of the PriCellular Board; Reasons for the
Merger" is incorporated herein by reference.
(f) Not applicable.
Item 9. Reports, Opinions, Appraisals and Certain Negotiations.
(a)-(c) The information set forth in the Information Statement under the
captions "THE MERGER--Recommendation of the PriCellular Board; Reasons for the
Merger," "THE MERGER--Opinions of the Financial Advisors to the PriCellular
Board" and "THE MERGER--Risks of Insolvency on Former Stockholders of
PriCellular" is incorporated herein by reference.
Item 10. Interest in Securities of the Issuer.
(a)-(b) The information set forth in the Information Statement under the
caption "SECURITY OWNERSHIP OF MANAGEMENT AND PRINCIPAL STOCKHOLDERS OF
PRICELLULAR" is incorporated herein by reference.
Item 11. Contracts, Arrangements or Understandings with Respect to the Issuer's
Securities
The information set forth in the Information Statement under the captions
"THE MERGER--Interests of Certain Persons in the Merger," "THE VOTING AGREEMENT"
and "OTHER AGREEMENTS" is incorporated herein by reference.
Item 12. Present Intention and Recommendation of Certain Persons with Regard to
the Transaction.
(a) The information set forth in the Information Statement under the
caption "THE VOTING AGREEMENT" is incorporated herein by reference.
(b) The information set forth in the Information Statement under the
captions "THE MERGER--Background of the Merger," "THE MERGER--Recommendation of
the PriCellular Board; Reasons for the Merger" and "THE MERGER--Interests of
Certain Persons in the Merger" is incorporated herein by reference.
Item 13. Other Provisions of the Transaction.
(a) The information set forth in the Information Statement under the
caption "APPRAISAL RIGHTS OF DISSENTING STOCKHOLDERS" and in Appendix E to the
Information Statement is incorporated herein by reference.
(b) Not applicable.
(c) Not applicable.
Item 14. Financial Information.
(a) The information set forth in the Information Statement under the
captions "SELECTED HISTORICAL FINANCIAL INFORMATION OF PRICELLULAR" and "MARKET
PRICE OF AND DIVIDENDS ON PRICELLULAR COMMON STOCK" is incorporated herein by
reference, as is the information in PriCellular's Annual Report on Form 10-K for
the year ended December 31, 1997 (as amended) and its quarterly report on Form
10-Q for the quarterly period ended March 31, 1998.
(b) Not applicable.
Item 15. Persons and Assets Employed, Retained or Utilized.
(a) The information set forth in the Information Statement under the
caption "THE MERGER--Interests of Certain Persons in the Merger" is incorporated
herein by reference.
(b) Not applicable.
Item 16. Additional Information.
The information set forth in the Information Statement under the captions
"THE COMPANY," "THE MERGER," "THE MERGER AGREEMENT," "THE VOTING AGREEMENT,"
"OTHER AGREEMENTS" and "SECURITY OWNERSHIP OF MANAGEMENT AND PRINCIPAL
STOCKHOLDERS OF PRICELLULAR" is incorporated herein by reference.
Item 17. Material to be Filed as Exhibits.
99.a.1 --Credit Facilities Commitment Letter dated March 6, 1998 among TD
Securities (USA) Inc., Merrill Lynch Capital Corporation and ACC.
99.a.2 --Indenture for $285,000,000 10 1/2% Senior Notes due 2008, dated
as of May 13, 1998 by and between ACC and Chase Manhattan Bank and
Trust Company, N.A.
99.b.1 --Fairness Opinion of Gleacher NatWest Inc. (incorporated herein by
reference to Appendix C of the Information Statement)
99.b.2 --Fairness Opinion of SBC Warburg Dillon Read Inc. (incorporated
herein by reference to Appendix D of the Information Statement)
99.b.3 --Solvency Opinion of Valuation Research (will be provided when
available)
99.c.1 --Voting Agreement dated as of March 6, 1998 between ACC and certain
stockholders named therein (incorporated herein by reference to
Appendix B of the Information Statement)
99.c.2 --Spectrum Equity Investors, L.P. Side Letter dated as of March 6,
1998
99.c.3 --AT&T Wireless Services, Inc. Consent and Waiver dated as of March
6, 1998
99.d Not Applicable
99.3 --"Appraisal Rights of Dissenting Shareholders" and Section 262 of
the General Corporation Law of the State of Delaware (incorporated
herein by reference to Appendix C of the Information Statement and
the information under the caption "APPRAISAL RIGHTS OF DISSENTING
STOCKHOLDERS")
99.f Not Applicable
SIGNATURE
After due inquiry and to the best of my knowledge and belief, I certify
that the information set forth in this statement is true, complete and correct.
Date: May 22, 1998
AMERICAN CELLULAR CORPORATION PRICELLULAR CORPORATION
By: /s/ Brion Applegate By: /s/ Steven Price
---------------------------- --------------------------
Name: Brion Applegate Name: Steven Price
Title: Chairman Title: President
SPECTRUM EQUITY INVESTORS, L.P. BRION APPLEGATE
By: Spectrum Equity Associates, L.P.
By: /s/ Brion Applegate /s/ Brion Applegate
------------------------------------ ------------------------------
Name: Brion Applegate
Title: General Partner
EXHIBIT INDEX
Exhibit No. Description Page No.
- ----------- ----------- --------
99.a.1 --Credit Facilities Commitment Letter dated March 6, 1998 among TD
Securities (USA) Inc., Merrill Lynch Capital Corporation and ACC.
99.a.2 --Indenture for $285,000,000 10 1/2% Senior Notes due 2008, dated
as of May 13, 1998 by and between ACC and Chase Manhattan Bank and
Trust Company, N.A.
99.b.1 --Fairness Opinion of Gleacher NatWest Inc. (incorporated herein by
reference to Appendix C of the Information Statement)
99.b.2 --Fairness Opinion of SBC Warburg Dillon Read Inc. (incorporated
herein by reference to Appendix D of the Information Statement)
99.b.3 --Solvency Opinion of Valuation Research (will be provided when
available)
99.c.1 --Voting Agreement dated as of March 6, 1998 between ACC and certain
stockholders named therein (incorporated herein by reference to
Appendix B of the Information Statement)
99.c.2 --Spectrum Equity Investors, L.P. Side Letter dated as of March 6,
1998
99.c.3 --AT&T Wireless Services, Inc. Consent and Waiver dated as of March
6, 1998
99.d Not Applicable
99.3 --"Appraisal Rights of Dissenting Shareholders" and Section 262 of
the General Corporation Law of the State of Delaware (incorporated
herein by reference to Appendix C of the Information Statement and
the information under the caption "APPRAISAL RIGHTS OF DISSENTING
STOCKHOLDERS")
99.f Not Applicable
EXHIBIT (a)(1)
March 6, 1998
American Cellular Corporation
c/o Spectrum Equity Investors, L.P.
245 Lytton Avenue
Suite 175
Palo Alto, California 94301
and
c/o Providence Equity Partners L.P.
50 Kennedy Plaza
Providence, RI 02903
Re: Credit Facilities Commitment Letter
Ladies and Gentlemen:
You have advised Toronto Dominion (Texas), Inc. ("TD"), TD
Securities (USA) ("TDSI") and Merrill Lynch Capital Corporation ("Merrill
Lynch") that (i) Spectrum Equity Investors, L.P. and its affiliates ("Spectrum")
and Providence Equity Partners L.P. and its affiliates ("Providence") and a
group of investors arranged by Spectrum and Providence (together with Spectrum
and Providence, the "Investors") have formed American Cellular Corporation
("Newco" or "Borrower") for the purpose of effecting the acquisition (the
"Acquisition") of a company previously identified to us as Livewire ("Target")
pursuant to an agreement and plan of merger (the "Merger Agreement") to be
entered into between Newco and Target; (ii) pursuant to the Merger Agreement,
Newco will merge (the "Merger") with and into Target, with Target as the
survivor; (iii) upon consummation of the Merger, each share of common stock of
Target held by the public stockholders will be converted into the right to
receive $14 per share (not including appraisal rights) in cash; and (iv) the
total purchase price for the equity of Target will not exceed $820 million for
all shares (including appraisal rights).
In addition, you have advised TD, TDSI and Merrill Lynch that,
in connection with the consummation of the Acquisition, (a) the Investors will
purchase for cash at the time of consummation of the Merger from Newco common
equity in an aggregate amount of $25 million and preferred stock (the
"New Preferred") in an aggregate amount of $325 million not requiring any cash
dividends or any redemption or repurchase thereof prior to the final stated
maturity of the Senior Subordinated Notes (as defined below) if the Senior
Subordinated Notes (as defined below) were issued (together, the "Equity
Financing"); (b) Newco will raise gross proceeds of $200 million either from an
offering (the "Securities Offering") of unsecured senior subordinated debt
securities due 2008 with no scheduled principal payments prior to maturity (the
"Senior Subordinated Notes"), or from an unsecured senior subordinated interim
loan (the "Interim Loan"), which would be anticipated to be replaced with debt
securities substantially similar to the Senior Subordinated Notes after the
closing of the Merger (the "Debt Securities") (the Securities Offering or the
take-down under the Interim Loan, the "Senior Subordinated Financing"); and (c)
Newco will enter into the senior secured credit facilities (the "Credit
Facilities") described herein.
In addition, you have advised TD, TDSI and Merrill Lynch that,
upon consummation of the Merger, (i) Target will repay all indebtedness and
terminate all commitments to make extensions of credit under the existing $60
million credit facility of a subsidiary of Target agented by Morgan Guaranty
Trust Company of New York (the "Existing Credit Facility"), and (ii) Borrower
will use its best efforts (with the assistance of Target) to consummate a tender
offer and consent solicitation (the "Note Tender") for all of Target's and its
subsidiaries' 14% Senior Subordinated Discount Notes due 2001, 12-1/4% Senior
Subordinated Discount Notes due 2003, 10-3/4% Senior Convertible Discount Notes
due 2004 (to the extent not converted into common equity), and 10-3/4% Senior
Notes due 2004 (collectively, the "Existing Notes"). To the extent that the Note
Tender is not consummated for all of the Existing Notes, all remaining Existing
Notes will be covenant defeased pursuant to an irrevocable trust to eliminate
all negative covenants therein.
The Acquisition, the Merger, the Senior Subordinated
Financing, the Equity Financing, the repayment of the Existing Credit Facility
and the cancellation of all commitments to make extensions of credit thereunder
(the "Existing Debt Repayment") and the entering into and borrowings under the
Credit Facilities by the parties herein described are herein referred to as the
"Transactions". The Existing Debt Repayment and the Note Tender (and/or
defeasance of all remaining Existing Notes) are herein referred to as the
"Refinancing".
In addition, you have advised TD, TDSI and Merrill Lynch that,
immediately after giving effect to the Transactions, Borrower and its
subsidiaries will have no indebtedness or preferred stock (or direct or indirect
guarantee or other credit support in respect thereof) outstanding other than the
Credit Facilities, the Senior Subordinated Financing, the New Preferred and the
Existing Notes not tendered in the Note Tender covenant defeased as contemplated
herein.
We further understand that the precise structure of the
Transactions will be under continuing consideration, may vary from the foregoing
and that any change from the foregoing will be subject to our mutual agreement.
You have requested that TD commit to provide $500 million and
that Merrill Lynch commit to provide $500 million aggregate principal amount of
$1.0 billion of aggregate principal amount of senior secured credit facilities
(the "Credit Facilities") to finance the Merger and the Refinancing and certain
related fees and expenses, such Credit Facilities comprising (a) three senior
secured term loan facilities in an aggregate principal amount of $850 million
(the "Term Loan Facilities"), such aggregate principal amount to be allocated
among (i) a Term Loan A Facility in an aggregate principal amount of $350
million (the "Term Loan A Facility"), (ii) a Term Loan B Facility in an
aggregate principal amount of $250 million (the "Term Loan B Facility"), and
(iii) a Term Loan C Facility in an aggregate principal amount of $250 million
(the "Term Loan C Facility"), and (b) a senior secured reducing revolving credit
facility in an aggregate principal amount of $150 million (the "Revolving
Facility"). A portion of the Revolving Facility to be mutually determined will
be available as a letter of credit subfacility.
By separate letter agreement Merrill Lynch and TD have
expressed their willingness (subject to the terms and provisions thereof) to
provide to Borrower $200 million aggregate principal amount under the Interim
Loan.
Accordingly, each of TD and Merrill Lynch hereby severally
agrees with you as follows:
Commitment. TD hereby severally commits to provide $500
million and Merrill Lynch hereby severally commits to provide $500 million of
the Credit Facilities to Borrower upon the terms set forth or referred to
herein, in the fee letter (the "Fee Letter") dated the date hereof and delivered
to you,and in the Summary of Terms and Conditions attached hereto (and
incorporated by reference herein) as Exhibit A (the "Term Sheet"). The
conditions precedent to any extension of credit under the Credit Facilities are
set forth herein in Sections 1 and 4 and in the Term Sheet under "Conditions to
Effectiveness and to Initial Loans" and "Conditions to All Extensions of
Credit", subject, however, to the terms of Sections 5 (second paragraph only)
and 9 hereof and to the provisions of the Term Sheet described under
"Termination of Commitments".
It is a condition of TD's commitment hereunder that TD acts as
Administrative Agent and TDSI acts as Co-Syndication Agent and Co-Arranger for
the Credit Facilities and of Merrill Lynch's commitment hereunder that Merrill
Lynch (or one of its affiliates) act as Documentation Agent and as
Co-Syndication Agent and Co-Arranger for the Credit Facilities, it being
understood and agreed that all such agents (together, the "Agents") will perform
all functions and exercise all authority (including, without limitation, (a)
serving as joint co-managers of the syndication effort, (b) selecting counsel
for the Agents, and (c) negotiating definitive documentation for the Credit
Facilities (the "Credit Documents")) customarily performed and exercised by
agent banks in such capacity. The appointment of any co-agents for the Credit
Facilities would be subject to the prior approval of TD, TDSI and Merrill Lynch.
The co-agent title and other titles awarded to syndicate participants would not
entail any role with respect to the matters referred to in this paragraph
without the prior consent of TD, TDSI and Merrill Lynch.
2. Syndication. Each of TD and Merrill Lynch reserves the
right and intends, prior to or after the execution of the Credit Documents, to
syndicate all or a portion of its commitment to one or more financial
institutions (TD, Merrill Lynch and such financial institutions being referred
to herein as the "Lenders") that will become parties to the Credit Documents,
and in that connection, promptly following your acceptance of TD's and Merrill
Lynch's commitment hereunder, TDSI and Merrill Lynch will commence the
syndication of the Credit Facilities to such Lenders. Upon your acceptance of
the commitment of any Lender to provide a portion of the Credit Facilities, TD
and Merrill Lynch shall be released from a portion of its commitment hereunder
in an aggregate amount equal to 50% and 50%, respectively, of the commitment of
such Lender. You agree that no Lender will receive compensation outside the
terms contained herein and in the Fee Letter in order to obtain its commitment
to participate in the Credit Facilities. It is understood and agreed that,
except as otherwise provided in the Fee Letter, the amount and distribution of
the fees and other compensation referred to herein among the Lenders (or any
co-agent) will be at TDSI's and Merrill Lynch's respective sole discretion. It
is understood and agreed that TDSI and Merrill Lynch will jointly manage all
aspects of the syndication (but will consult with you in such matters),
including, without limitation, decisions as to the selection of potential
Lenders reasonably acceptable to you to be approached and when they will be
approached, when their commitments will be accepted, which Lenders will
participate, any naming rights (including the naming of co-agents, subject to
your reasonable approval) and the final allocations of the commitments among the
Lenders (which are likely not to be pro rata across facilities among Lenders).
You agree actively to assist TDSI and Merrill Lynch in
achieving a timely syndication that is satisfactory to TDSI and Merrill Lynch.
The syndication efforts will be accomplished by a variety of means, including
direct contact during the syndication between senior management (including, but
not limited to, the chief executive officer, chief financial officer and
treasurer of Newco and Target) and advisors and affiliates of Newco and Target
on the one hand and the proposed syndicate Lenders on the other hand. To assist
TDSI and Merrill Lynch in their syndication efforts, you agree that you will,
promptly, upon TDSI's or Merrill Lynch's request, (a) provide, and cause your
affiliates and advisors to provide, and use your best efforts to have Target
provide, to TDSI and Merrill Lynch all information reasonably deemed necessary
by TDSI or Merrill Lynch to complete successfully the syndication, including but
not limited to, information and projections (including, without limitation, any
updated projections requested by TDSI or Merrill Lynch contemplated hereby), and
(b) assist, and cause your affiliates and advisors to assist, and use your best
efforts to have Target assist, TDSI and Merrill Lynch in the preparation of a
confidential information memorandum and other marketing materials to be used in
connection with the syndication, including making available representatives of
Newco and/or Target and their respective subsidiaries. You also agree to use
your best efforts to ensure that TDSI's and Merrill Lynch's syndication efforts
benefit from your existing lending relationships. It is understood and agreed
that TDSI and Merrill Lynch shall be entitled, with your prior written consent
(which shall not be unreasonably withheld or delayed), to change the structure
of the Credit Facilities as described herein and in the Term Sheet (provided
that the aggregate principal amount of the Credit Facilities, taken as a whole,
remains the same) if TDSI and Merrill Lynch deem such action advisable in order
to ensure a successful syndication or an optimal credit structure.
Fees. As consideration for TD's and Merrill Lynch's commitment
hereunder and their agreement to arrange, manage, structure and syndicate the
Credit Facilities, you agree to pay to TDSI (on behalf of TD and Merrill Lynch)
the fees as set forth in the Term Sheet and in the Fee Letter. You agree that,
once paid, such fees and any part thereof shall be nonrefundable under any and
all circumstances and regardless of whether the transactions or borrowings
contemplated hereby are consummated.
4. Conditions. TD's and Merrill Lynch's respective commitments
hereunder are subject to the negotiation, execution and delivery of definitive
Credit Documents reasonably satisfactory in all respects to TD, TDSI, Merrill
Lynch and their counsel. Such definitive documentation shall reflect the terms
and conditions set forth herein and in the Term Sheet and contain such other
indemnities, covenants, representations and warranties, events of default,
conditions precedent, security arrangements and other terms and conditions as
are reasonably satisfactory to TD, TDSI, Merrill Lynch and you, modified as
appropriate to reflect the terms of the Transactions; provided, however, that
there shall be no conditions to any extensions of credit other than as set forth
herein in Sections 1 and 4 and in the Term Sheet under "Conditions to
Effectiveness and to Initial Loans" and "Conditions to All Extensions of
Credit". Those matters that are not covered by or made clear under the
provisions hereof or of the Term Sheet are subject to the approval and agreement
of TD, TDSI, Merrill Lynch and you (it being understood that the terms and
conditions of the Credit Documents shall not be inconsistent with the terms and
conditions set forth herein or in the Term Sheet).
TD's and Merrill Lynch's respective commitments hereunder are
also subject to (a) no material adverse change shall have occurred and be
continuing in the loan syndication or financial, banking or capital market
conditions generally from those in effect on the date hereof that, individually
or in the aggregate, could reasonably be expected to adversely affect the
consummation of the Transactions or the ability of TDSI and Merrill Lynch to
syndicate the Credit Facilities; no banking moratorium shall have been declared
by federal or New York State banking authorities and shall be continuing; (b)
none of Newco, Target or any of their respective subsidiaries shall have
syndicated or issued, attempted to syndicate or issue, or announced or
authorized the announcement of the syndication or issuance of any debt facility
or debt security of Newco or Target or any of their respective subsidiaries,
including renewals thereof, other than the Senior Subordinated Financing and the
Credit Facilities; and (c) the satisfaction of the other terms and conditions
set forth or referred to in Section 1 and in the Term Sheet under the captions
"Conditions to Effectiveness and to Initial Loans" and "Conditions to All
Extensions of Credit", however, the commitment hereunder is subject to the
provisions of Sections 5 (second paragraph only) and 9 hereof. For purposes of
this Commitment Letter and the Term Sheet, the "subsidiaries" of Newco shall be
deemed to include those who will become subsidiaries of Newco in connection with
the Transactions.
5. Information and Investigations. You hereby represent and
covenant that (a) all written information and data (excluding financial
projections) concerning Newco, Target, their respective subsidiaries, the
Transactions and the other transactions contemplated hereby (the "Information")
that have been made or will be prepared by or on behalf of you or any of your
affiliates or authorized representatives or advisors and that have been or will
be made available to TD, TDSI or Merrill Lynch by you or on your behalf in
connection with the transactions contemplated hereby, taken as a whole, is and
will be complete and correct in all material respects and does not and will not,
taken as a whole, contain any untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements contained
therein not misleading in light of the circumstances under which such statements
are made, and (b) all financial projections concerning Borrower and its
subsidiaries and the transactions contemplated hereby (the "Projections") that
have been made or will be prepared by or on behalf of you or any of your
affiliates or authorized representatives and that have been or will be made
available to TD, TDSI or Merrill Lynch by you or on behalf of you or any of your
affiliates or authorized representatives or advisors in connection with the
transactions contemplated hereby have been and will be prepared in good faith
based upon assumptions believed by you to be reasonable.
You agree to supplement the Information and the Projections from time to time
until the date of execution and delivery of the Credit Documents (the "Closing
Date") and, if requested by TDSI or Merrill Lynch, for a reasonable period
thereafter necessary to complete the syndication of the Credit Facilities so
that the representations and covenants in the preceding sentence remain correct.
In arranging the Credit Facilities, including the syndication thereof, TDSI and
Merrill Lynch will be using and relying primarily on the Information and the
Projections without independent check or verification thereof.
5. TD, TDSI and Merrill Lynch have conducted a due diligence
investigation of Target and its subsidiaries based on financial and other
information regarding Target and its subsidiaries contained in the documents
filed by Target with the Securities and Exchange Commission prior to the date
hereof and the information and other data provided by or on behalf of Target to
us and specified on Schedule A hereto (collectively, the "Target Information")
and are satisfied with the result thereof as of the date of this Commitment
Letter. TD's and Merrill Lynch's respective commitments hereunder are based upon
the accuracy and completeness of the Target Information. If the Target
Information proves to have been, or TD, TDSI or Merrill Lynch reasonably
concludes that the Target Information is, inaccurate, incomplete or misleading
in any material respect or TD, TDSI or Merrill Lynch shall become aware or
otherwise discover any information, development or other matter concerning
Target or its subsidiaries that is inconsistent in any material respect with the
Target Information or that TD, TDSI or Merrill Lynch reasonably believes has had
or could reasonably be expected to have, individually or in the aggregate, a
material adverse effect on the condition (financial or otherwise), business,
assets or results of operations of Target together with its subsidiaries taken
as a whole (and before and after giving effect to the Transactions) from that
reflected in the draft Form 10-K (including draft audited financial statements
included therein) dated February 19, 1998 of Target for the fiscal year of
Target ended December 31, 1997 delivered by Target to TD, TDSI and Merrill Lynch
prior to the date hereof, then each of TD and Merrill Lynch (a) shall be
entitled to terminate its commitment hereunder (and thereafter have no other or
further obligations hereunder or in connection with the Credit Facilities or any
of the other Transactions) or (b) may, in its sole discretion, suggest
alternative financing amounts or structures that ensure adequate protection for
TD, Merrill Lynch and the other Lenders. In any such event, neither TD nor
Merrill Lynch shall be responsible or liable for any damages which may be
alleged as a result of its failure, in accordance with the terms of this
Commitment Letter, to provide the Credit Facilities.
6. Indemnification and Contribution. By executing this
Commitment Letter, you agree to indemnify and hold harmless TD, TDSI, Merrill
Lynch and each of the other Lenders and their respective officers, directors,
employees, affiliates, agents and controlling persons (TD, TDSI, Merrill Lynch
and each such other person being an "Indemnified Party") from and against any
and all losses, claims, damages and liabilities, joint or several, to which such
Indemnified Party may become subject under any applicable law, or otherwise
related to or arising out of or in connection with or relating to this
Commitment Letter, the Fee Letter, the Term Sheet, the Credit Facilities, the
loans under the Credit Facilities, the use of proceeds of any such loan, any of
the Transactions or any related transaction and the performance by TD, TDSI,
Merrill Lynch or any of their respective affiliates of the services contemplated
by this Commitment Letter and will reimburse any Indemnified Party for any and
all reasonable expenses (including counsel fees and expenses) as they are
incurred in connection with the investigation of or preparation for or defense
of any pending or threatened claim or any action or proceeding arising
therefrom, whether or not such Indemnified Party is a party and whether or not
such claim, action or proceeding is initiated or brought by or on behalf of
Newco, Target or any of their respective affiliates and whether or not any of
the transactions contemplated hereby are consummated or this Commitment Letter
is terminated. You will not be liable under the foregoing indemnification
provision to an Indemnified Party to the extent that any loss, claim, damage,
liability or expense is found in a final non-appealable judgment by a court of
competent jurisdiction to have resulted from such Indemnified Party's bad faith
or gross negligence.
You also agree that no Indemnified Party shall have any
liability (whether direct or indirect, in contract or tort or otherwise) to any
of you, Newco, Target or your or their respective security holders or creditors
related to or arising out of or in connection with this Commitment Letter, the
Fee Letter, the Term Sheet, the Credit Facilities, the loans under the Credit
Facilities, the use of proceeds of any such loan, any of the Transactions or any
related transaction or the engagement of TD, TDSI or Merrill Lynch pursuant to,
or the performance by TD, TDSI, Merrill Lynch or any of their respective
affiliates of the services contemplated by this Commitment Letter, except to the
extent that any loss, claim, damage or liability is found in a final
non-appealable judgment by a court of competent jurisdiction to have resulted
from such Indemnified Party's bad faith or gross negligence.
You agree that, without TD's, TDSI's and Merrill Lynch's prior
written consent, neither you nor any of your affiliates or subsidiaries will
settle, compromise or consent to the entry of any judgment in any pending or
threatened claim, action or proceeding in respect of which indemnification has
been or could be sought under the indemnification provisions of this Commitment
Letter (whether or not TD, TDSI, Merrill Lynch or any other Indemnified Party is
an actual or potential party to such claim, action or proceeding), unless such
settlement, compromise or consent (i) includes an unconditional written release
in form and substance satisfactory to the Indemnified Parties of each
Indemnified Party from all liability arising out of such claim, action or
proceeding and (ii) does not include any statement as to or an admission of
fault, culpability or failure to act by or on behalf of any Indemnified Party.
In the event that an Indemnified Party is requested or
required to appear as a witness in any action brought by or on behalf of or
against you or any of your subsidiaries or affiliates in which such Indemnified
Party is not named as a defendant, you agree to reimburse such Indemnified Party
for all reasonable expenses incurred by it in connection with such Indemnified
Party's appearing and preparing to appear as such a witness, including, without
limitation, the reasonable fees and expenses of its legal counsel.
7. Expenses. By executing this Commitment Letter, you agree to
reimburse TD, TDSI, Merrill Lynch and their respective affiliates for their
reasonable out-of-pocket expenses (including, without limitation, expenses of
TD's, TDSI's and Merrill Lynch's due diligence investigation, consultants' fees
(if such consultants are engaged by TD, TDSI and Merrill Lynch with your consent
(which consent shall not be unreasonably withheld or delayed)), syndication
expenses, appraisal and valuation fees and expenses, travel expenses, and the
reasonable fees, disbursements and other charges of counsel) incurred in
connection with the Credit Documents and the negotiation, preparation, execution
and delivery, waiver or modification, administration, collection and enforcement
of this Commitment Letter, the Term Sheet, the Fee Letter and the Credit
Documents and the security arrangements in connection therewith.
8. Confidentiality. You agree that this Commitment Letter, the
Term Sheet, the Fee Letter, the contents of any of the foregoing and TD's,
TDSI's, Merrill Lynch's and/or their respective affiliates' activities pursuant
hereto or thereto is confidential and shall not be disclosed by you to any
person without the prior written consent of TD, TDSI and Merrill Lynch and any
such affiliate, other than to the Investors, Target and the Investors', Target's
and your respective officers, directors, employees, accountants, attorneys and
other advisors, and then only in connection with the Transactions and on a
confidential and need-to-know basis, except that, following your acceptance
hereof (and payment of any fees due and payable upon such acceptance as set
forth in the Fee Letter), you may disclose this Commitment Letter and the Term
Sheet (but not the Fee Letter or any matter related to any information in the
Fee Letter) and you may make such other public disclosures of the terms and
conditions hereof as you are required by applicable law or compulsory legal
process to make; provided, however, that if such disclosure is required by
applicable law or compulsory legal process you agree to give TD, TDSI and
Merrill Lynch reasonable notice to afford TD, TDSI and Merrill Lynch the
opportunity to seek a protective order and to cooperate with TD, TDSI and
Merrill Lynch in securing such a protective order. You agree that you will
permit TD, TDSI and Merrill Lynch to review and approve any reference to TD,
TDSI and Merrill Lynch in connection with the Credit Facilities or the
transactions contemplated hereby contained in any press release or similar
public disclosure prior to public release. You agree that TD, TDSI, Merrill
Lynch and their respective affiliates may share information concerning you and
Target among themselves.
9. Termination. In the event that (i) you have not accepted
this Commitment Letter by 5:00 p.m. (New York City time) on the date hereof or
Newco and Target have not executed a definitive Merger Agreement in form and
substance acceptable to TD, TDSI and Merrill Lynch by 11:59 p.m. (New York City
time) on the date hereof; (ii) the initial extension of credit under the Credit
Facilities does not occur on or before September 15, 1998; (iii) any condition
described in clause (a) or (b) of the second paragraph of Section 4 or under
clause (K) of "Conditions to Effectiveness and to Initial Loans" of the Term
Sheet shall fail to be satisfied; (iv) the Merger Agreement is terminated; or
(v) Target accepts a merger or acquisition proposal other than that of Newco,
this Commitment Letter and TD's and Merrill Lynch's commitment hereunder shall
terminate (upon written notice by TD and Merrill Lynch with respect to clause
(ii) of this sentence) unless TD and Merrill Lynch shall, in their respective
sole discretion, agree to an extension (however, the extension by any of TD or
Merrill Lynch shall not bind the other). Notwithstanding the foregoing, the
compensation, reimbursement, indemnification and confidentiality provisions
hereof and of the Term Sheet and the Fee Letter and Sections 6, 7, 8, 11 and 14
of this Commitment Letter shall survive any termination of this Commitment
Letter or TD's or Merrill Lynch's commitment hereunder (other than any such
termination pursuant to clause (i) above).
10. Assignment, etc. Subject to the last sentence of this
Section 10, this Commitment Letter and TD's or Merrill Lynch's commitment
hereunder shall not be assignable by either party hereto without the prior
written consent of the other party hereto, and any attempted assignment shall be
void and of no effect; provided, however, that nothing contained in this Section
10 shall prohibit TD, TDSI or Merrill Lynch (in their respective sole
discretion) from (i) performing any of its duties hereunder through any of its
affiliates (including in the case of Merrill Lynch, Merrill Lynch, Pierce,
Fenner & Smith Incorporated) and you will owe any related duties (including
those set forth in Section 2 above) to any such affiliate, and (ii) granting
participations in, or selling assignments of all or a portion of, the
commitments or the loans under the Credit Facilities pursuant to arrangements
satisfactory to TD, TDSI and Merrill Lynch. This Commitment Letter is intended
to be solely for the benefit of the parties hereto and is not intended to confer
any benefits upon, or create any rights in favor of, any person other than the
parties hereto. Notwithstanding the foregoing, TD, TDSI and Merrill Lynch
severally agree that you may assign, after the consummation of the Merger, any
or all of your rights and obligations hereunder and under the Fee Letter to
Target; provided, however, that TD and Merrill Lynch shall have received
Target=s written acceptance thereof, and thereafter you will be fully released
with respect to any rights and obligations so assigned and assumed.
11. GOVERNING LAW. THIS COMMITMENT LETTER SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK (WITHOUT
REGARD TO PRINCIPLES OF CONFLICTS OF LAW).
12. Execution in Counterparts. This Commitment Letter may be
executed in any number of counterparts and by different 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. Delivery of an executed counterpart of this Commitment Letter by
telecopier shall be effective as delivery of a manually executed counterpart of
this Commitment Letter.
13. Amendments, etc. No amendment or waiver of any provision
of this Commitment Letter, nor any consent or approval to any departure
therefrom, shall in any event be effective unless the same shall be in writing
and signed by the parties hereto and then any such waiver, consent or approval
shall be effective only in the specific instance and for the specific purpose
for which given. By executing this Commitment Letter, you acknowledge that this
Commitment Letter and the Fee Letter are the only agreements as of the date
hereof between the parties hereto with respect to the Credit Facilities and set
forth the entire understanding of the parties with respect thereto as of the
date hereof.
13. Waiver of Jury Trial. Each of the parties hereto (in each
case on its own behalf and, to the extent permitted by applicable law, on behalf
of its shareholders) waives all right to trial by jury in any action, proceeding
or counterclaim (whether based upon contract, tort or otherwise) related to or
arising out of any of the Transactions, the other transactions contemplated by
this Commitment Letter, or the performance by TD, Merrill Lynch or any of their
respective affiliates of the services contemplated by this Commitment Letter.
15. Public Announcements. You acknowledge that each of TD,
TDSI and Merrill Lynch may, at its option and expense place an announcement in
such newspapers and periodicals as it may choose, stating that TD, TDSI or
Merrill Lynch, as the case may be, has acted in the capacity set forth in this
Commitment Letter.
16. Notices. Any notice given pursuant to any of the
provisions of this Commitment Letter shall be in writing and shall be mailed or
delivered, if to you, at your address set forth on page one of this Commitment
Letter to the attention of Brion Applegate (at Spectrum) and Jonathan Nelson (at
Providence), with a copy to Scott Haber, Esq., at Latham & Watkins, 505
Montgomery, Suite 1900, San Francisco, California 94111; if to TD or TDSI, at TD
Securities (USA) Inc., 31 W. 52nd Street, New York, New York 10019, Attention:
Gordon Paris, and if to Merrill Lynch, at the offices of Merrill Lynch Capital
Corporation, World Financial Center, North Tower, 250 Vesey Street, New York,
New York 10281, Attention: Robert W.M. Stevens, in each case for TD, TDSI and
Merrill Lynch with a copy to Michael E. Michetti, Esq., at Cahill Gordon &
Reindel, 80 Pine Street, New York, New York 10005.
[Signature Page Follows]
Please confirm that the foregoing correctly sets forth our
agreement of the terms hereof and the Fee Letter by signing and returning to the
undersigned the duplicate copy of this letter and Fee Letter enclosed herewith.
Upon your acceptance hereof, this letter shall constitute a binding agreement
between you and us; provided the undersigned shall have received your executed
duplicate copies not later than 5:00 p.m., New York City time, on March 6, 1998,
at which time the undersigned's commitment hereunder will expire in the event
the undersigned has not received such executed duplicate originals.
We are pleased to have this opportunity and we look forward to
working with you on this transaction.
Very truly yours,
TD SECURITIES (USA) INC.
By: /s/ Mary E. Meduski
--------------------------------
Name: Mary E. Meduski
Title: Relationship Manager
MERRILL LYNCH CAPITAL CORPORATION
By: /s/ Robert Stevens
--------------------------------
Name: Robert Stevens
Title: Vice President
Accepted and agreed to as of the date first written above:
AMERICAN CELLULAR CORPORATION
By: /s/ Jonathan M. Nelson
--------------------------------
Name: Jonathan M. Nelson
Title: President
Schedule A
Information Provided by Target
C. Project LiveWire Information Package from DLJ dated
December 22, 1997 (including executive summary, investment
highlights, summary of capitalization, network buildout
summary, interconnection agreement summary, roaming
agreement summary, sample rate plans, competition, severance
arrangements, summary, of Laredo joint venture, tax basis,
operating cash flow summary, 1997 YTD (10/31/97) operating
results (without TN-4), but excluding 1998 operating budget
(without TN-4))
C. Breakdown of wireless license holders in LiveWire markets
C. Breakdown of Pops, percentage ownership, acquisition date,
square miles and Pop density for all LiveWire markets
C. Acquisition cost components (GM Conference 1997)
C. LiveWire Corporation 1998 Digital Strategy Presentation
C. 1998 Initiatives presentation regarding revenue generation,
subscriber generation, promotional programs and public
relations
C. Presentation on Enhanced Features
C. Maps of service area boundaries by cluster
C. Monthly 1996 and 1997 Budget/Actual Performance Schedule as
of December 1997
C. 1997 Budget Summary dated January 21, 1997: Corporate
Office, ConnectOne Communications, Consolidated Omitting
Corporate and ConnectOne Expenses, Duluth, Eau Claire,
Wausau and WI-6A, WI-1, WI-3, WI-4, WI-4 North, WI-4 South,
MI-1, MN-2, MN-3, MN-5, MN-6, Alton/Granite City, OH-7, PA-
9, WV-2, WV-3, Kentucky Cluster Consolidated, NY-5 South
(Blue Zone), NY-5 North (Red Zone), NY-6, Poughkeepsie,
Orange County, Southwest Bell/Laredo Joint Venture, Lubbock
Covenant Not To Compete, Florence Covenant Not To Compete,
AL-4 Covenant Not To Compete.
C. CellularOne Service Agreement and Credit Application
C. Consumer Profile Matrix as of September 24, 1997
C. Business Profile Matrix as of September 24, 1997
C. Credit criteria and procedures
C. Draft of 10K for the year ended December 31, 1997 (draft as
of February 19, 1998 at 10:22 am)
CONFIDENTIAL EXHIBIT A
SUMMARY OF TERMS AND CONDITIONS(1)
Borrower: American Cellular Corporation ("Newco or
"Borrower"), a Delaware corporation which has
been formed by Spectrum Equity Investors,
L.P. ("Spectrum") and Providence Equity
Partners L.P. ("Providence") and a group of
investors arranged by Spectrum and Providence
(together with Spectrum and Providence, the
"Investors") to effect the acquisition of
Livewire.
Administrative Agent: Toronto Dominion (Texas), Inc. ("TD") will
act as administrative agent (the
"Administrative Agent").
Documentation Agent: Merrill Lynch & Co., Merrill Lynch, Pierce,
Fenner & Smith Incorporated ("Merrill Lynch")
will act as documentation agent (the
"Documentation Agent" and together with the
Administrative Agent, the "Agents").
Co-Syndication Agents and TD Securities (USA) Inc. ("TDSI") and Merrill
Arranging Agents: Lynch.
Lenders: TD, Merrill Lynch Capital Corporation
("MLCC") and a syndicate of financial
institutions (the "Lenders") reasonably
acceptable to TDSI, Merrill Lynch and
Borrower.
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1 Capitalized terms used herein and not defined shall have the meanings
assigned to such terms in the attached Credit Facilities Commitment
Letter (the "Commitment Letter"). References herein to "$" or "US$" are
to United States Dollars. For all purposes of this Term Sheet, the
"subsidiaries" of Borrower shall be deemed to include those entities
that will become subsidiaries of Borrower in connection with the
Transactions. References herein to "Borrower" include Target after the
consummation of the Merger.
Credit Facilities: Senior secured credit facilities (the "Credit
Facilities") in an aggregate principal amount
of $1.0 billion to be made available to
Borrower, such Credit Facilities comprising:
(A) Term Loan Facilities. Term loan
facilities in an aggregate principal
amount of $850 million (the "Term Loan
Facilities"), such aggregate principal
amount to be allocated among (i) a Term
Loan A Facility in an aggregate
principal amount of $350 million (the
"Term Loan A Facility")J, (ii) a Term
Loan B Facility in an aggregate
principal amount of $250 million (the
"Term Loan B Facility"), and (iii) a
Term Loan C Facility in an aggregate
principal amount of $250 million (the
"Term Loan C Facility). Loans under the
Term Loan Facilities are herein referred
to as "Term Loans".
(B) Revolving Credit Facility. A
reducing revolving credit facility in an
aggregate principal amount of $150
million (the "Revolving Facility").
Loans under the Revolving Facility are
herein referred to as "Revolving Loans";
the Term Loans and the Revolving Loans
are herein referred to collectively as
"Loans". A portion of the Revolving
Facility to be mutually determined will
be available as a letter of credit
subfacility.
The Agents and Borrower may mutually agree to
reallocate commitment amounts among the
Credit Facilities. To the extent that the
total uses of funds in connection with the
Merger and the Refinancing (as defined below)
is otherwise less than the amount previously
disclosed to the Agents, the aggregate
principal amount of the Credit Facilities
shall, at the sole and absolute discretion of
the Agents, be reduced (before any reduction
of the Senior Subordinated Financing) on a
dollar-for-dollar basis in a manner
acceptable to the Agents.
After the Closing Date, Borrower may request
that any of the Lenders agree (or to the
extent that the existing Lenders have not
agreed within 20 days to provide the
Increased Facility Amount described herein,
new Lenders ("New Lenders") acceptable to the
Agents) to increase the Credit Facilities by
up to $200 million (the "Increased Facility
Amount"), which Increased Facility Amount (x)
shall be allocated among the Revolving
Facility and the Term Loan Facilities or one
or more new term loan facilities in amounts
and with maturities (included any extended
maturity (in the sole discretion of the
Agents) for such portion thereof allocated to
the Revolving Facility) acceptable to the
Agents in their sole discretion and having
terms and provisions no more onerous than
those contained in the Credit Documents (as
defined below under "Documentation"), and (y)
shall require the consent of the Lenders
holding a majority of the Loans and
commitments (the "Majority Lenders");
provided, however, that at the time of the
effectiveness of such increase in the Credit
Facilities, no default or event of default
shall have occurred and be continuing.
Documentation: Usual for facilities and transactions of this
type and reasonably acceptable to Borrower,
the Agents and the Lenders. The documentation
for the Credit Facilities will include, among
others, a credit agreement (the "Credit
Agreement"), guarantees and appropriate
pledge, security interest, mortgage and other
collateral documents (collectively, the
"Credit Documents"). Borrower and each
Guarantor (as defined below under
"Guarantors") are herein referred to as the
"Credit Parties".
Transactions: The Investors have formed a new corporation
("Newco" or "Borrower") for the purpose of
effecting the acquisition (the "Acquisition")
of a company previously identified as
Livewire ("Target") pursuant to an agreement
and plan of merger (the "Merger Agreement")
to be entered into between Newco and Target.
Pursuant to the Merger Agreement, Newco will
merge (the "Merger") with and into Target,
with Target as the survivor. Upon
consummation of the Merger, each share of
common stock of Target held by the public
stockholders will be converted into the right
to receive $14 per share (excluding appraisal
rights) in cash. The total purchase price for
the equity of Target will not exceed $820
million for all shares (including appraisal
rights).
In connection with the consummation of the
Acquisition, (a) the Investors will purchase
for cash at the time of consummation of the
Merger from Newco common equity in an
aggregate amount of $25 million and preferred
stock (the "New Preferred") in an aggregate
amount of $325 million not requiring any cash
dividends or redemption or repurchase thereof
prior to the final stated maturity of the
Senior Subordinated Notes (as defined below)
if the Senior Subordinated Notes were issued
(together, the "Equity Financing"); (b) Newco
will raise gross proceeds of $200 million
either from an offering (the "Securities
Offering") of unsecured senior subordinated
debt securities due 2008 with no scheduled
principal payments prior to maturity (the
"Senior Subordinated Notes"), or from an
unsecured senior subordinated interim loan
(the "Interim Loan"), which would be
anticipated to be replaced with debt
securities (the "Take-out Securities")
substantially similar to the Senior
Subordinated Notes after the closing of the
Merger (the Securities Offering or the
take-down under the Interim Loan, the "Senior
Subordinated Financing"); and (c) Newco will
enter into the senior secured credit
facilities (the "Credit Facilities")
described herein.
In addition, upon consummation of the Merger,
(i) Target will repay all indebtedness and
terminate all commitments to make extensions
of credit under the existing $60 million
credit facility of a subsidiary of Target
agented by Morgan Guaranty Trust Company of
New York (the "Existing Credit Facility"),
and (ii) Borrower will use its best efforts
(with the assistance of Target) to consummate
a tender offer and consent solicitation
(together, the "Note Tender") for all of
Target's and its subsidiaries' 14% Senior
Subordinated Discount Notes due 2001, 12-1/4%
Senior Subordinated Discount Notes due 2003,
10-3/4% Senior Convertible Discount Notes due
2004 (to the extent not converted into common
equity), and 10-3/4% Senior Notes due 2004
(collectively, the "Existing Notes"). To the
extent that the Note Tender is not
consummated for all of the Existing Notes,
all remaining Existing Notes will be covenant
defeased pursuant to an irrevocable trust to
eliminate all negative covenants therein.
The Acquisition, the Merger, the Senior
Subordinated Financing, the Equity Financing,
the repayment of the Existing Credit Facility
and the cancellation of all commitments to
make extensions of credit thereunder (the
"Existing Debt Repayment") and the entering
into and borrowings under the Credit
Facilities by the parties herein described
are herein referred to as the "Transactions".
The Existing Debt Repayment and the Note
Tender (and/or defeasance of all remaining
Existing Notes) are herein referred to as the
"Refinancing".
Availability/Purpose: (A) Term Loan Facilities: Term Loans shall be
available, subject to the conditions set
forth herein and in the Credit Documents, in
a single draw on the date of the consummation
of the Merger to finance the Merger and the
Refinancing and to pay related fees and
expenses.
Amounts borrowed under the Term Loan
Facilities that are repaid or prepaid may not
be reborrowed.
(B) Revolving Facility. The Revolving
Facility will be available, subject to the
terms and conditions set forth herein and in
the Credit Documents, for the purposes
described above (not more than $75 million
drawn at closing unless consented to by the
Agents in their sole discretion) and for
working capital and general corporate
purposes (including acquisitions permitted by
the Credit Agreement) in the form of
revolving loans and letters of credit on and
after the Closing Date until 30 business days
prior to the Revolving Loan Maturity Date (as
defined below under "Final Maturity and
Amortization"). Amounts repaid under the
Revolving Facility may, subject to the
conditions set forth herein, be reborrowed to
the extent of the commitments under the
Revolving Facility then in effect.
Guarantors: Each of Borrower's direct and indirect
subsidiaries existing on the Closing Date or
thereafter created or acquired shall
unconditionally guarantee, on a joint and
several basis, all obligations of Borrower
under the Credit Facilities and under each
interest rate protection agreement entered
into with a Lender or an affiliate of a
Lender.
Each guarantor of any of the Credit
Facilities is herein referred to as a
"Guarantor" and its guarantee is referred to
herein as a "Guarantee."
Security: The Credit Facilities, the Guarantees, and
the obligations of Borrower under each
interest rate protection agreement entered
into with a Lender or an affiliate of a
Lender will be secured by (A) a perfected
first priority lien on, and pledge of, all of
the capital stock and intercompany notes of
each of the direct and indirect subsidiaries
of Borrower existing on the Closing Date or
thereafter created or acquired, and (B) a
perfected first priority lien on, and
security interest in, all of the tangible and
intangible properties and assets (including
all contract rights (including under
partnership agreements, management
agreements, operating agreements, affiliation
agreements and similar agreements) real
property interests, trademarks, trade names,
equipment and proceeds of the foregoing) of
Borrower and its direct and indirect
subsidiaries existing on the Closing Date or
thereafter created or acquired (collectively,
the "Collateral"), except for ----------
those properties and assets which the Agents
shall determine in their sole discretion that
the costs of obtaining such security interest
are excessive in relation to the value of the
security to be afforded thereby (it being
understood that none of the foregoing shall
be subject to any other liens or security
interests, except for certain customary
exceptions to be agreed upon). In addition,
(1) no FCC license need be pledged to the
extent not permitted by law (however
customary arrangements reasonably
satisfactory to the Agents will be made with
respect thereto to grant to the Lenders the
economic benefit thereof), and (2) Borrower
shall have the right to exclude capital
stock, equity interests and licenses (and
other categories of assets to be reasonably
agreed to by Borrower and the Agents) from
the Collateral if inclusion of any such
assets in the Collateral requires the consent
of any governmental authority or other third
party and Borrower has been unable to obtain
such consent after diligent efforts, so long
as a substantial majority of the value of
each such category of assets is included in
the Collateral. All such security interests
will be created pursuant to documentation
satisfactory in all respects to the Agents
and on the Closing Date such security
interests shall have become perfected and the
Agents shall have received satisfactory
evidence as the enforceability and priority
thereof.
Termination of The commitments in respect of the Credit
Commitments: Facilities will terminate in their entirety
on September 15, 1998 if the initial funding
under the Credit Facilities does not occur on
or prior to such date. The unused commitments
in respect of the Term Loan Facilities shall
terminate on the Closing Date immediately
after the making of the Term Loans on such
date. The commitments in respect of each Term
Loan Facility shall terminate with respect to
such Term Loan Facility on the date of the
making of each Term Loan in the amount of
such Term Loan. Commitments once terminated
or reduced may not be reinstated.
Final Maturity and (A) Term Loan Facilities: The Term Loan A
Amortization: Facility will mature on the eight-and-one-
half anniversary of the Closing Date, the
Term Loan B Facility will mature on the ninth
anniversary of the Closing Date, and the Term
Loan C Facility will mature on the nine-and-
one-half anniversary of the Closing Date.
(B) Revolving Facility. The Revolving
Facility will mature on the eight-and-one-
half anniversary of the Closing Date (the
"Revolving Loan Maturity Date").
Reduction Schedule: The Revolving Credit Facility and Term Loan A
Facility will amortize on a quarterly basis
according to the following schedule:
Period Amount of Reduction
------ -------------------
2001 5%
2002 10%
2003 15%
2004 15%
2005 20%
2006 25%
2007 10%
Each of the Term Loan B Facility and the Term
Loan C Facility will amortize 1% per year or
0.25% on a quarterly basis beginning one year
after the Closing Date with a balloon payment
at maturity.
Letters of Credit: Letters of credit under the Revolving
Facility ("Letters of Credit") will be issued
by a Lender selected by the Agents and
reasonably satisfactory to Borrower (in such
capacity, the "L/C Lender"). Each standby
letter of credit shall expire no later than
the earlier of (a) twelve months after its
date of issuance or (b) the fifth business
day prior to the Revolving Loan Maturity
Date. Each trade letter of credit shall
expire no later than the earlier of (a) 180
days after its date of issuance, or (b) the
fifth business day prior to the Revolving
Loan Maturity Date. The issuance of all
Letters of Credit shall be subject to the
customary procedure of the L/C Lender.
Drawings under any Letter of Credit shall be
reimbursed by Borrower on the same business
day. To the extent that the borrower thereof
does not reimburse the L/C Lender on the same
business day, the Lenders under the Revolving
Facility shall be irrevocably obligated to
reimburse the L/C Lender pro rata based upon
their respective commitments, with the amount
of such reimbursement payment being deemed to
be a drawing under the Revolving Facility.
Letter of Credit Fees: Letter of Credit fees will be payable on the
daily average undrawn face amount of each
Letter of Credit at a rate per annum equal to
the applicable margin for Revolving Loans
which are LIBOR rate loans in effect at such
time (but in no event less than $500 per
Letter of Credit), which fees shall be paid
quarterly in arrears, of which an issuing fee
on the face amount of each Letter of Credit
equal to 0.25% per annum (but not less than
$500 per Letter of Credit) shall be payable
to the L/C Lender for its own account, which
fee shall be paid upon issuance.
Interest Rates and Fees: Interest rates and fees in connection with
the Credit Facilities will be as specified on
Annex I attached hereto.
Borrower will be entitled to make borrowings
based on the ABR plus the applicable margin
or LIBOR plus the applicable margin. Borrower
may select interest periods of one, two,
three or six months (or nine or twelve months
if available from all of the Lenders) for
LIBOR borrowings. Interest will be payable in
arrears (i) in the case of ABR Loans, at the
end of each quarter and (ii) in the case of
LIBOR Loans, at the end of each interest
period and, in the case of any interest
period longer than three months, no less
frequently than three months. Interest on all
borrowings shall be calculated on the basis
of the actual number of days elapsed over a
360-day year.
Default Rate: The applicable interest rate (including
applicable margin) plus 2.00% per annum.
Mandatory Prepayments/ The Credit Facilities will be required to be
Reductions in Commitments: prepaid with (a) 75% of annual Excess Cash
Flow (to be defined) (such percentage to be
reduced to 50% with respect to any fiscal
year if the ratio of total debt to Annualized
Operating Cash Flow (to be defined) at the
end of such fiscal year is less than
8.0:1.0), (b) 100% of the net proceeds
(including insurance proceeds if not
reinvested within a specified time period or
if above a threshold amount) of asset sales
and other asset dispositions for proceeds in
excess of a certain threshold to be mutually
agreed not reinvested within a period of time
to be mutually agreed (c) 100% of the net
proceeds of the issuance or incurrence of
debt (other than the Take-out Securities if
the Interim Loan is drawn down) or of any
sale and lease-back for proceeds in excess of
a certain threshold to be mutually agreed,
and (d) 50% of the net proceeds from any
issuance of equity securities in any public
offering or private placement or from any
capital contribution.
Mandatory prepayments will be applied pro
rata between the Term Loan Facilities based
on the aggregate principal amount of Term
Loans then outstanding under each such Term
Loan Facility. Any application to any Term
Loan Facility shall be applied pro rata to
the remaining scheduled amortization payments
under such Term Loan Facility.
Notwithstanding the foregoing, any holder of
Term Loans under the Term Loan B Facility or
the Term Loan C Facility may, with respect to
any mandatory prepayment, to the extent that
Term Loans are then outstanding under the
Term Loan A Facility (after giving effect to
the application of such mandatory prepayment
to the Term Loans under the Term Loan A
Facility), elect not to have mandatory
prepayments applied to such holder's Term
Loans under the Term Loan B Facility or the
Term Loan C Facility, as the case may be, in
which case the aggregate amount so declined
shall be applied to the Term Loans under the
Term Loan A Facility pro rata. To the extent
that the amount to be applied to the
prepayment of Term Loans exceeds the
aggregate amount of Term Loans then
outstanding, such excess shall be applied to
the Revolving Facility to permanently reduce
the commitments thereunder.
Revolving Loans will be immediately prepaid
to the extent that the aggregate extensions
of credit under the Revolving Facility
exceeds the commitments then in effect under
the Revolving Facility. To the extent that
the amount to be applied to the repayment of
the Revolving Loans exceeds the amount
thereof then outstanding, Borrower shall cash
collateralize outstanding Letters of Credit.
Voluntary Prepayments/ (A) Term Loan Facilities: Borrowings under
Reductions in Commitments: the Term Loan Facilities may be prepaid at
any time in whole or in part at the option of
Borrower, in a minimum principal amount and
in multiples to be agreed upon, without
premium or penalty (except, in the case of
LIBOR borrowings, prepayments not made on the
last day of the relevant interest period).
Voluntary prepayments under the Term Loan
Facilities will be applied pro rata among the
Term Loan Facilities and as to any Term Loan
Facility pro rata against the remaining
scheduled amortization payments under such
Term Loan Facility.
Notwithstanding the foregoing, any holder of
Term Loans under the Term Loan B Facility or
the Term Loan C Facility may, with respect to
any voluntary prepayment, to the extent that
Term Loans are then outstanding under the
Term Loan A Facility (after giving effect to
the application of such voluntary prepayment
to Term Loans under the Term Loan A
Facility), elect not to have mandatory
prepayments applied to such holder's Term
Loans under the Term Loan B Facility or the
Term Loan C Facility, as the case may be, in
which case the aggregate amount of such
prepayment so declined shall be applied to
the Term Loans under the Term Loan A Facility
pro rata.
(B) Revolving Facility: The unutilized
portion of the commitments under the
Revolving Facility may be reduced and loans
under the Revolving Facility may be repaid at
any time, in each case, at the option of
Borrower, in a minimum principal amount and
in multiples to be agreed upon, without
premium or penalty (except, in the case of
LIBOR borrowings, prepayments not made on the
last day of the relevant interest period).
Conditions to Effectiveness The effectiveness of the Credit Agreement
and to Initial Loans: and the making of the initial Loans under
the Credit Facilities shall be subject to
reasonable conditions precedent that are
usual and customary for facilities and
transactions of this type (but not any that
are materially inconsistent with the terms
hereof and in the Commitment Letter) and to
those specified herein and in the Commitment
Letter (all such conditions to be satisfied
in a manner reasonably satisfactory in all
respects to the Agents and (to the extent
specified below) the Majority Lenders),
including, but not limited to, execution and
delivery of the Credit Documents reasonably
acceptable in form and substance to the
Agents and the Majority Lenders; delivery of
reasonably satisfactory borrowing
certificates; receipt of valid security
interests as contemplated hereby; accuracy of
representations and warranties (which, with
respect to Target and its subsidiaries, shall
be substantially identical to those in the
draft Merger Agreement provided to the Agents
prior to the date of the Commitment Letter);
absence of defaults, prepayment events or
creation of liens under debt instruments or
other agreements as a result of the
transactions contemplated hereby; evidence of
authority; compliance with applicable laws
and regulations (including but not limited to
ERISA, margin regulations, bank regulatory
limitations and environmental laws); and
adequate insurance.
The making of the initial Loans under the
Credit Facilities will be subject to the
following conditions (in addition to those
above):
(A) The delivery, on or prior to the Closing
Date, of (i) legal opinions in form and
substance reasonably satisfactory to the
Agents, (ii) officers' certificates, together
with the accompanying charter documents and
corporate resolutions, in form and substance
reasonably satisfactory to the Agents, and
(iii) a certificate from the chief financial
officer of Borrower and, at Borrower's
expense, a nationally recognized appraisal
firm or valuation consultant reasonably
satisfactory to the Agents in form and
substance reasonably satisfactory to the
Agents and the Lenders with respect to the
solvency of each Credit Party immediately
after the consummation of the Transactions to
occur on the Closing Date.
(B) Borrower shall have received aggregate gross
proceeds of $200 million from the Senior
Subordinated Financing (which may be
increased (with a dollar-for-dollar decrease
in the Credit Facilities) in an amount
mutually acceptable to the Agents and
Borrower in their respective sole discretion)
pursuant to agreements, and terms and
conditions thereunder, in form and substance
reasonably satisfactory to the Agents (it
being understood that the terms and
conditions set forth in the Interim Loan
Commitment Letter dated March 6, 1998 from
MLCC, TD and TDSI are satisfactory to the
Agents).
(C) The Investors shall have purchased for cash
common equity of Newco in an aggregate amount
of $25 million and the New Preferred (which
shall not have any negative covenants (other
than with respect to dividends or
distributions on, or redemptions of, junior
stock (as defined in the certificate of
designations with respect to the New
Preferred), or redemptions of the New
Preferred) or any requirement for cash
dividends or redemption or repurchase
provisions prior to the final stated maturity
of the Senior Subordinated Notes if the
Senior Subordinated Notes were issued) in an
aggregate amount of $325 million, all on
terms and conditions reasonably satisfactory
to the Agents (it being understood that the
terms and conditions set forth in the draft
Stock Purchase Agreement (draft of March 6,
1998) and in the draft certificate of
designations relating to the New Preferred
(draft of March 6, 1998) provided to the
Agents prior to the date of the Commitment
Letter are satisfactory to the Agents).
(D) The Board of Directors of Newco and Target
shall have authorized and approved the
Transactions and the Agents shall have
received reasonably satisfactory evidence of
the same. Newco and Target shall have
entered into the Merger Agreement, which
shall be in full force and effect. The
terms, conditions and structure of the Merger
and Acquisition and the Merger Agreement
(including all exhibits, appendices,
schedules, annexes and attachments thereto),
including any amendments thereto shall be in
form and substance reasonably satisfactory to
the Agents (it being understood that the
terms and conditions set forth in the draft
Merger Agreement (draft of March 6, 1998)
provided to the Agents prior to the date of
the Commitment Letter are satisfactory to the
Agents). Target shall not have any "poison
pill" rights or shall have redeemed such
rights at a nominal price, or the Agents
shall otherwise be reasonably satisfied that
such rights are null and void with respect to
or inapplicable to the Merger and
Acquisition. The Agents and the Lenders
shall have received copies, certified by
Borrower, of all filings made with any
governmental authority in connection with the
Transactions.
(E) Each of the Transactions and the financing
therefor shall be in compliance with all laws
and regulations, or the Agents and the
Majority Lenders shall have determined such
to be inapplicable to such transactions.
(F) The Merger and each of the other Transactions
(other than extensions of credit under the
Credit Facilities) shall have been
consummated in accordance with the terms
hereof and the terms of the Merger Agreement
and the other documentation therefor (without
the waiver or amendment of any condition
relating to FCC approvals or any other
condition unless consented to by the Agents
and the Majority Lenders) that are in form
and substance reasonably satisfactory to the
Agents and the Majority Lenders (with any
condition therein requiring the satisfaction
of any person other than the Agents or the
Lenders being deemed to require the
satisfaction of the Agents and the Required
Lenders). Newco and Target shall have
complied in all material respects with all
covenants set forth in the Merger Agreement
(without waiver or amendment of any of the
terms thereof unless consented to by the
Agents and the Majority Lenders).
(G) The consideration per share of common stock
in the Merger shall not exceed $14 per share
(excluding appraisal rights) and an aggregate
of $820 million for all shares (including
appraisal rights).
(H) Newco and Target shall have effected the
Existing Debt Repayment on terms and
conditions and pursuant to documentation
reasonably satisfactory to the Agents and
Majority Lenders. All liens in respect of the
Existing Credit Facility shall have been
released and the Agents shall have received
evidence thereof reasonably satisfactory to
the Agents and a "pay-off" letter reasonably
satisfactory to the Agents with respect to
the Existing Credit Facility.
(I) After giving effect to the Transactions and
the other transactions contemplated hereby,
Borrower and its subsidiaries shall have
outstanding no indebtedness or preferred
stock (or direct or indirect guarantee or
other credit support in respect thereof)
outstanding other than the loans under the
Credit Facilities, the Senior Subordinated
Financing, the New Preferred and all
remaining Existing Notes not tendered in the
Note Tender covenant defeased as contemplated
herein (with such adjustment to the aggregate
amount of the Senior Subordinated Financing
(with a dollar-for-dollar reduction of the
Credit Facilities) as the Agents and Borrower
may mutually agree upon in their respective
sole discretion).
(J) Such portion of the Existing Notes not
tendered in the Note Tender shall have been
covenant defeased pursuant to documentation
and arrangements (not including the
defeasance price, which is governed by the
indentures in respect of the Existing Notes)
satisfactory to the Agents such that the
entire amount thereof shall have the benefit
of an irrevocable trust funded with cash and
all negative covenants therein shall have
been thereby eliminated.
(K) There shall not have occurred or become known
(i) any event, occurrence or development of
circumstances or facts which, individually or
in the aggregate, has resulted in or
reasonably could be expected to result in any
material adverse change in the condition
(financial or otherwise), business, assets or
results of operations (each, a "Material
Adverse Change") of Newco or Target, in each
case together with their respective
subsidiaries taken as a whole, as the case
may be (and before and after giving effect to
the Transactions) from that reflected in the
draft Form 10-K (including draft audited
financial statements included therein) of
Target for the fiscal year of Target ended
December 31, 1997 dated February 19, 1998
delivered by Target to the Agents prior to
the date of the Commitment Letter (the "Draft
10-K"), or (ii) any dividend or distribution
of any kind declared or paid by Target on its
capital stock since December 31, 1996, except
as set forth in the Draft 10-K. Target's
Form 10-K for the fiscal year ended December
31, 1997 filed with the Securities and
Exchange Commission shall not differ in any
material respect from the Draft 10-K.
(L) The Lenders shall have received a pro forma
consolidated balance sheet of Target dated as
of the date of the most recently available
financial statements of Target after giving
effect to the Transactions, which balance
sheet shall be consistent in all material
respects with the sources and uses of funds
and the other conditions contemplated hereby
(it being understood that the estimates of
cash on hand and expenses and tender premiums
are subject to change, which may be
significant). Borrower shall also have
provided such other financial information as
the Lenders or the Agents may reasonably
request in connection with the Transactions.
(M) All requisite governmental authorities and
third parties shall have approved or
consented to the Transactions and the other
transactions contemplated hereby to the
extent required, all applicable appeal
periods shall have expired and there shall be
no governmental or judicial action, actual or
threatened, that has had the effect of (or
could reasonably be expected to have the
effect of) restraining, preventing or
imposing materially burdensome conditions on
any of the Transactions or the other
transactions contemplated hereby, except, in
each case, as would not, singly or in the
aggregate, result in a Material Adverse
Change or have a material adverse effect on
the rights or remedies of the Lenders or the
ability of the Credit Parties to perform
their obligations under the Credit Documents.
(N) Any defaults in any material agreements of
Borrower that may result from the
Transactions shall have been resolved or
otherwise addressed in a manner reasonably
satisfactory to the Agents and the Majority
Lenders; no law or regulation shall be
applicable in the reasonable judgment of the
Lenders that restrains, prevents or imposes
material adverse conditions upon any
component of the Transactions or the
financing thereof, including the Credit
Facilities.
(O) All loans and other financing to Borrower
shall be in full compliance with all
applicable requirements of Regulations G, T,
U and X of the Board of Governors of the
Federal Reserve System.
(P) The Agents shall have received reasonably
satisfactory third-party environmental
reports (including Phase I reports) of Target
and its subsidiaries reasonably requested by
the Agents. The Lenders shall have determined
that reasonably satisfactory insurance
relating to Target and its subsidiaries will
be in place after the Merger.
(Q) All accrued fees and expenses (including the
reasonable fees and expenses of counsel to
the Lenders and the Agents) of the Lenders
and the Agents in connection with the Credit
Documents shall have been paid.
(R) The subsidiary of Target which is the issuer
of certain of the Existing Notes shall have
merged (or shall merge concurrently with the
consummation of the Transactions) with and
into Borrower (with Borrower as the
survivor).
(S) The Lenders shall have received the results
of a recent lien, tax and judgment search in
each of the jurisdictions and offices where
assets of each of Newco and Target and their
respective subsidiaries are located or
recorded, and such search shall reveal no
liens on any of their assets except for liens
permitted by the Credit Documents or liens to
be discharged in connection with the
transactions contemplated hereby.
(T) If the Closing Date occurs prior to the
availability of internal financial statements
for June 1998, Annualized Operating Cash Flow
of Target and its consolidated subsidiaries
shall not be less than $106 million. For
purposes of the immediately preceding
calculation only, Annualized Operating Cash
Flow shall be defined as Operating Cash Flow
(as customarily defined in a mutually
acceptable manner, but excluding the Laredo
joint venture) for April and May 1998
multiplied by six (6).
If the Closing Date occurs after the
availability of internal financial statements
for June 1998, Annualized Operating Cash Flow
of Target and its consolidated subsidiaries
for the latest three months for which
internal financial statements are available
shall not be less than $106 million. For
purposes of the immediately preceding
calculation only, Annualized Operating Cash
Flow shall be defined as Operating Cash Flow
(as customarily defined in a mutually
acceptable manner, but excluding the Laredo
joint venture) for such three months
multiplied by four (4).
(U) The Agents shall be reasonably satisfied
that, since the date of the Commitment
Letter, Target has operated its business in
the ordinary course of business consistent
with past practice, including ordinary course
marketing expenses consistent with past
practice.
(V) The Lenders shall have received such other
reasonable and customary legal opinions,
corporate documents and other instruments
and/or certificates as they may reasonably
request.
Conditions to All Each extension of credit under the Credit
Extensions of Credit: Facilities will be subject to the (i)
absence of any Default or Event of Default,
and (ii) continued accuracy of
representations and warranties.
Representations and Customary for facilities similar to the
Warranties: Credit Facilities and such reasonable and
customary additional representations and
warranties as may be required by the Agents,
including, but not limited to (it being
understood that all representations and
warranties relating to Target and its
subsidiaries shall be substantially identical
to those in the draft Merger Agreement
provided to the Agents prior to the date of
the Commitment Letter), no Default or Event
of Default; absence of Material Adverse
Change; receipt of financial statements
(including pro forma financial statements);
absence of undisclosed liabilities or
material contingent liabilities; compliance
with laws; solvency; no conflicts with laws,
charter documents or agreements; good
standing; payment of taxes; ownership of
properties; corporate power and authority; no
burdensome restrictions; inapplicability of
the Investment Company Act; FCC matters;
ERISA matters; environmental matters; labor
matters; absence of material litigation; use
of proceeds and margin regulations; no
material misstatement or omission; validity
and perfection of security interests; absence
of liens and security interests (other than
the Credit Facilities and other pre-existing
liens acceptable to the Lenders); validity,
priority and perfection of security interests
in the Collateral; and accuracy of Newco's
and Target's representations and warranties
in the Merger Agreement.
Affirmative Covenants: Customary for facilities similar to the
Credit Facilities and such reasonable and
customary others as may be required by the
Agents, including, but not limited to,
maintenance of corporate existence and
rights; compliance with laws; performance of
obligations; maintenance of material rights
and privileges; maintenance of properties in
good repair; maintenance of appropriate and
adequate insurance; inspection of books and
properties; consummation of the Merger on the
terms set forth in the Merger Agreement;
payment of taxes and other liabilities;
notice of defaults, litigation and other
adverse action; delivery of financial
statements, financial projections and
compliance certificates; maintenance of
interest rate protection; ERISA compliance;
environmental compliance; and further
assurances. Borrower will use its best
efforts to effect for its benefit and the
benefit of the Lenders the equivalent of a
perfected first priority security interest in
licenses held by subsidiaries of Target.
Negative Covenants: Customary for facilities similar to the
Credit Facilities and such reasonable and
customary others as may be required by the
Agents, including, but not limited to,
limitation on indebtedness (other than the
Increased Facility Amount); limitation on
liens; limitation on further negative
pledges; limitation on loans, investments and
joint ventures; limitation on guarantee or
other contingent obligations; limitation on
restricted payments (including dividends,
redemptions and repurchases of equity
interests (other than pursuant to the Merger
Agreement)); limitation on fundamental
changes (including limitation on mergers
(other than the Merger), acquisitions and
asset sales); limitation on restrictions on
amending Credit Documents; limitation on
issuance, sale or other disposition of
subsidiary stock; limitation on capital
expenditures; limitation on operating leases;
limitation on sale-leaseback transactions;
limitation on sale or discount of
receivables; limitation on transactions with
affiliates; limitation on dividend and other
payment restrictions affecting subsidiaries;
limitation on changes in business conducted;
limitation on amendment of documents relating
to other indebtedness (including the Senior
Subordinated Financing, the Existing Credit
Facility and the Existing Notes) and other
material documents; limitation on creation of
subsidiaries; limitation on designation of
Designated Senior Indebtedness in respect of
the Senior Subordinated Financing; and
limitation on prepayment or repurchase of
other indebtedness (other than in connection
with the Refinancing). No material change
may be made to the Merger Agreement or the
certificate of designations or any other
agreement or instrument with respect to the
New Preferred without the consent of the
Agents and the Majority Lenders. Newco shall
not conduct any business, enter into any
transactions or incur any obligations or
liabilities other than as contemplated herein
in connection with the Transactions and
matters incidental thereto and performance of
its obligations in respect of the
Transactions and the agreements related
thereto.
Financial Covenants: The Credit Facilities will contain financial
covenants appropriate in the context of the
proposed transaction based upon the financial
information provided to the Agents,
including, but not limited to (definitions
and numerical calculations to be set forth in
the Credit Agreement): minimum interest
coverage ratio, minimum fixed charge coverage
ratio, maximum ratio of total debt to
Annualized Operating Cash Flow (to be
defined), maximum ratio of senior debt to
Annualized Operating Cash Flow and minimum
pro forma debt service ratio. The financial
covenants contemplated above will be tested
on a quarterly basis and will apply to
Borrower and its subsidiaries on a
consolidated basis.
Interest Rate Management: An amount reasonably designated by the Agents
of the projected outstandings under the
Credit Facilities must be hedged on terms and
for a period of time satisfactory to the
Agents.
Events of Default: Customary for facilities similar to the
Credit Facilities and others to be specified
by the Agents, including, but not limited to,
nonpayment of principal, interest, fees or
other amounts when due; violation of
covenants; failure of any representation or
warranty to be true in all material respects;
cross-default and cross-acceleration; Change
in Control (to be defined); bankruptcy and
insolvency events; material judgments; ERISA
events; change of control under any other
indebtedness; termination or revocation or
renewal on materially adverse terms of any
FCC license; and actual or asserted (by any
Credit Party) invalidity of any Credit
Document or security interest.
Yield Protection and Usual for facilities and transactions of this
Increased Costs: type, including, but not limited to, in
respect of prepayments (which will include
reimbursement of redeployment costs in the
case of prepayments (or conversion into ABR
Loans) of LIBOR Loans other than at the end
of an interest period), taxes (including but
not limited to gross-up provisions for
withholding taxes imposed by any governmental
authority), indemnity for breakage costs,
changes in capital requirements, guidelines
or policies or their interpretation or
application, illegality, changes in
circumstances, increased costs as a result of
change in law or administration thereof, as a
result of regulatory guidelines or requests,
changes in reserves (to the extent not
included in the interest rate) and other
provisions reasonably deemed necessary by the
Agents or the other Lenders to provide
customary protection for U.S. and non-U.S.
Lenders.
Assignments and No Credit Party may assign its rights or
Participations: obligations in connection with the Credit
Facilities without the prior written consent
of all of the Lenders.
Lenders shall be permitted to assign and
participate Loans, notes and commitments.
Non-pro rata assignments of Loans, notes, and
commitments of the Credit Facilities shall be
permitted. Each assignment (unless to another
Lender or its affiliates) shall be in a
minimum amount of $5 million (unless Borrower
and the Agents otherwise consent or unless
the assigning Lender's exposure is thereby
reduced to $0). Assignments through novation
or otherwise shall be permitted with
Borrower's consent (or, if determined by the
Agents after consultation with prospective
Lenders to be necessary for successful
syndication, without the consent of, but upon
consultation with, Borrower) (such consent
not to be unreasonably withheld, delayed or
conditioned), except that no such consent
need be obtained to effect an assignment to
any Lender (or its affiliates) or if any
event of default has occurred and is
continuing. Participations shall be permitted
without restriction and participants will
have the same benefits as the original
syndicate Lenders with regard to yield
protection and increased costs, collateral
benefits and provision of information on the
Credit Parties (it being understood that with
respect to yield protection and increased
cost provisions, such shall be applicable to
the participant only if the Lender effecting
such participation would have been entitled
thereto). Voting rights of participants will
be subject to customary limitations. In the
case of the Revolving Facility, assignments
will require the consent of the L/C Lender.
Assignees will assume all of the rights and
obligations of the assigning Lender.
Assignments to any Credit Party or any of its
affiliates are prohibited without consent of
all of the Lenders.
Voting: Amendments to and waivers of any provision of
any Credit Document will require the approval
of Lenders holding at least a majority of the
extensions of credit and commitments (the
"Required Lenders"), except that (i) the
consent of all affected Lenders shall be
required with respect to (a) reductions of
principal, interest rates or fees, (b)
extensions of scheduled interest payments or
final maturity or termination of commitments,
(c) change in any provisions requiring the
consent of all the Lenders, (d) any reduction
in the percentage referred to in the
definition of Required Lenders, (e) except as
provided in the Credit Documents, any release
of any Guarantor from its guarantee or any
arrangement providing that any obligation
other than obligations (including the
Increased Facility Amount) under the Credit
Documents to the Lenders (or interest rate
hedges with Lenders or their affiliates) will
be secured by the collateral securing the
Credit Facilities, and (f) waive the
requirement that nine and twelve month LIBOR
interest periods require the consent of all
Lenders, (ii) the consent of all of the
Lenders shall be required with respect to any
release of all or substantially all
collateral securing the Credit Facilities,
(iii) no Lender's commitment shall be
increased without the consent of such Lender,
(iv) the consent of Lenders holding at least
66-2/3% of the extensions of credit and
commitments shall be required with respect to
extensions of scheduled amortization or
reductions in the amount of any amortization
payment, and (v) no waiver or amendment (or
change to the application to scheduled
amortization payments) of the application of
any prepayment as among the Term Loans under
the Term Loan A Facility, Term Loan B
Facility and Term Loan C Facility may be
effected without the consent of the Lenders
holding at least 66-2/3% of the commitments
and/or loans of the affected tranches.
Expenses and Indemnification: In addition to those out-of-pocket expenses
reimbursable under the Commitment Letter, all
out-of-pocket expenses of the Agents (and the
Lenders for enforcement costs and documentary
taxes) associated with the preparation,
execution and delivery of any waiver or
modification (whether or not effective) of,
and the enforcement of, any Credit Document
(including the reasonable fees, disbursements
and other charges of counsel for the Agents)
are to be paid by the Credit Parties. The
Credit Parties will indemnify each of the
Agents and the other Lenders and hold them
harmless from and against all costs, expenses
(including fees, disbursements and other
charges of counsel) and liabilities arising
out of or relating to any litigation or other
proceeding (regardless of whether any Agent
or any such other Lender is a party thereto)
that relate to the Transactions or any
transactions related thereto; provided,
however, that none of any Agent or any such
other Lender will be indemnified for any
cost, expense or liability to the extent
determined by a court of competent
jurisdiction in a final and nonappealable
judgment to have resulted from such person's
gross negligence or bad faith.
Governing Law and Forum: New York.
Waiver of Jury Trial: All parties to the Credit Agreement waive
right to trial by jury.
Counsel for Agents: Cahill Gordon & Reindel.
ANNEX I
-------
Interest Rates and Fees: Borrower will be entitled to make borrowings
at either the LIBOR or ABR, plus (each of the
following, an "Applicable Margin") (A) with
respect to LIBOR Loans, (i) in the case of
Revolving Loans, 2.500% per annum; (ii) in
the case of Loans under the Term Loan A
Facility ("Term A Loans"), 2.500% per annum;
(iii) in the case of Loans under the Tranche
B Term Loan Facility ("Term B Loans"), 2.750%
per annum; and (iv) in the case of Loans
under the Term Loan C Facility ("Term C
Loans"), 3.000% per annum; and (B) with
respect to ABR Loans, (i) in the case of
Revolving Loans, 1.500% per annum; (ii) in
the case of Term A Loans, 1.500% per annum;
(iii) in the case of Term B Loans, 1.750% per
annum; and (iv) in the case of Term C Loans,
2.000% per annum. No LIBOR Loans may be
elected prior to the consummation of the
Merger (or the completion of the primary
syndication of the Credit Facilities as
determined by the Agents, if later).
Notwithstanding the foregoing paragraph, on
and after the first date after the Closing
Date on which Borrower delivers financial
statements and a computation of the ratio of
total debt to Annualized Operating Cash Flow
(the "Leverage Ratio") in accordance with the
Credit Agreement, the Applicable Margin shall
be, when the Leverage Ratio is as set forth
in any of the Tiers set forth in the chart
below, the percentage for each applicable
Loan set forth opposite such Tier in the
chart below:
<TABLE>
- --------------------------------------------------------------------------------------------------------
Revolving Loans
and Term A Loans Term B Loans Term C Loans
-------------------- -------------------- --------------------
Leverage LIBOR ABR LIBOR ABR LIBOR ABR
Tier Ratio MARGIN MARGIN MARGIN MARGIN MARGIN MARGIN
- ---- -------- ------ ------ ------ ------ ------ ------
<S> <C> <C> <C> <C> <C> <C> <C>
- --------------------------------------------------------------------------------------------------------
I less than
9.0:1.0 2.500% 1.500% 2.750% 1.750% 3.000% 2.000%
-
--------------------------------------------------------------------------------------------------------
II less than
9.0: but
greater than
8.0:1.0 2.250% 1.250% 2.750% 1.750% 3.000% 2.000%
-
- --------------------------------------------------------------------------------------------------------
III less than
8.0:1.0 but
greater than
7.0:1.0 1.875% 0.875% 2.750% 1.750% 3.000% 2.000%
-
- --------------------------------------------------------------------------------------------------------
IV less than
7.0:1.0 but
greater than
6.0:1.0 1.625% 0.625% 2.500% 1.500% 2.750% 1.750%
-
- --------------------------------------------------------------------------------------------------------
V less than
6.0:1.0 but
greater than
5.0:1.0 1.375% 0.375% 2.500% 1.500% 2.750% 1.750%
- --------------------------------------------------------------------------------------------------------
VI less than
5.0:1.0 1.125% 0.125% 2.500% 1.500% 2.750% 1.750%
- --------------------------------------------------------------------------------------------------------
</TABLE>
"ABR" means the higher of (i) the corporate
base of interest announced by the
Administrative Agent from time to time,
changing when and as said corporate base rate
changes, and (ii) the Federal Fund Rate plus
0.50% per annum. The corporate base rate is
not necessarily the lowest rate charged by
the Administrative Agent to its customers.
"LIBOR" means the rate determined by the
Administrative Agent to be available to the
Lenders in the London interbank market for
deposits in the amount of, and for a maturity
corresponding to, the amount of the
applicable LIBOR Loan, as adjusted for
maximum statutory reserves.
Commitment fees accrue on the undrawn amount
of the Credit Facilities, commencing on the
date of the making of the initial Loans under
the Credit Facilities. The commitment fee in
respect of the Credit Facilities will be (x)
0.50% per annum so long as the ratio of total
debt to Annualized Operating Cash Flow is
equal to or greater than 7.0:1.0, (y) 0.375%
per annum so long as the ratio of total debt
to Annualized Operating Cash Flow is equal to
or greater than 5.0:1.0 but less than
7.0:1.0, and (z) 0.250% per annum so long as
such ratio is less than 5.0:1.0.
All commitment fees will be payable in
arrears at the end of each quarter and upon
any termination of any commitment, in each
case for the actual number of days elapsed
over a 360-day year.
EXHIBIT (a)(2)
INDENTURE, dated as of May 13, 1998, by and between American
Cellular Corporation, a Delaware corporation (the "Company"), and Chase
Manhattan Bank and Trust Company, National Association, a banking corporation
organized under the laws of the United States of America, as Trustee (the
"Trustee").
Each party hereto agrees as follows for the benefit of each
other party and for the equal and ratable benefit of the Holders of the
Company's 10 1/2% Series A Senior Notes due 2008 (the "Series A Securities" or
the "Initial Securities"), and the 10 1/2% Series B Senior Notes due 2008 (the
"Series B Securities" and, together with the Series A Securities, the
"Securities"), which may be exchanged for the 10 1/2% Series A Senior Notes due
2008:
ARTICLE I.
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1. Definitions.
"Acceleration Notice" shall have the meaning specified in
Section 6.2.
"Acquired Indebtedness" means Indebtedness of a person (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 each case,
other than Indebtedness incurred in connection with, or in contemplation of,
such Person becoming a Restricted Subsidiary or such acquisition, as the case
may be. 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, as the case may be.
"Acquired Person" shall have the meaning as set forth in the definition of
"Permitted Investment."
"Additional Escrow Amount" means that certain equity
contribution from the Equity Investors, in the amount of $20 million, which is
placed in the Escrow and Pledge Account with the net proceeds realized from the
sale of the Notes.
"Affiliate" means, with respect to any specified Person, (i)
any other Person directly or indirectly controlling or controlled by, or under
direct or indirect common control with, such specified Person or (ii) any
officer, director, or controlling stockholder of such other Person. For purposes
of this definition, the term "control" means (a) the power to direct the
management and policies of a Person, directly or through one or more
intermediaries, whether through the ownership of voting securities, by contract,
or otherwise, or (b) without limiting the foregoing, the beneficial ownership of
10% or more of the voting power of the voting common equity of such Person (on a
fully diluted basis) or of warrants or other rights to acquire such equity
(whether or not presently exercisable).
"Agent" means any Registrar, Paying Agent or co-Registrar.
"Annualized Operating Cash Flow" on any date means, with
respect to any Person, the Operating Cash Flow for the Reference Period
multiplied by two.
"Annualized Operating Cash Flow Ratio" on any date (the
"Transaction Date") means, with respect to any Person and its Subsidiaries, the
ratio of (i) consolidated Indebtedness of such Person and its Subsidiaries on
the Transaction Date (after giving pro forma effect to the Incurrence of such
Indebtedness) (and without duplication of any Indebtedness that may be the
obligation of such Person and/or one of its Subsidiaries) divided by (ii) the
aggregate amount of Annualized Operating Cash Flow of such Person (determined on
a pro forma basis after giving effect to all acquisitions or dispositions of
businesses made by such Person and its Subsidiaries from the beginning of the
Reference Period through the Transaction Date as if such acquisition or
disposition 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 Annualized Operating Cash Flow Ratio will be assumed to have
occurred (on a pro forma basis) on the first day of the Reference Period; (b)
the incurrence of any Indebtedness during the Reference Period or subsequent
thereto and on or prior to the Transaction Date (and the application of the
proceeds therefrom to the extent used to retire Indebtedness or to acquire
businesses) will be assumed to have occurred (on a pro forma basis) on the first
day of such Reference Period; (c) Consolidated Interest Expense attributable to
any Indebtedness (whether existing or being incurred) bearing a floating
interest rate shall be computed as if the rate in effect on the Transaction Date
had been the applicable rate for the entire period; and (d) 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. When the foregoing
definition is used in connection with the Company and its Restricted
Subsidiaries, references to a Person and its Subsidiaries in the foregoing
definition shall be deemed to refer to the Company and its Restricted
Subsidiaries.
"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 at
the time of such transfer or transaction.
"Asset Sale" shall have the meaning specified in Section 4.14.
"Asset Sale Amount" shall have the meaning specified in
Section 4.14.
"Asset Sale Offer" shall have the meaning specified in Section
4.14.
"Asset Sale Offer Amount" shall have the meaning specified in
Section 4.14.
"Asset Sale Offer Price" shall have the meaning specified in
Section 4.14.
"Asset Sale Purchase Date" shall have the meaning specified in
Section 4.14.
"Bankruptcy Law" means Title 11, U.S. Code, or any similar
Federal, state or foreign law for the relief of debtors.
"Board of Directors" means, with respect to any Person, the
Board of Directors of such Person or any committee of the Board of Directors of
such Person authorized, with respect to any particular matter, to exercise the
power of the Board of Directors of such Person.
"Board Resolution" means, with respect to any Person, a duly
adopted resolution of the Board of Directors of such Person.
"Business Day" means a day that is not a Legal Holiday.
"Capitalized Lease Obligations" means obligations under a
lease that are required to be capitalized for financial reporting purposes in
accordance with GAAP, and the amount of Indebtedness represented by such
obligations shall be the capitalized amount of such obligations, as determined
in accordance with GAAP.
"Capital Stock" means, with respect to any Person, any capital
stock of such Person and shares, interests, participations or other ownership
interests (however designated) of any Person and any rights (other than debt
securities convertible into capital stock), warrants and options to purchase any
of the foregoing, including (without limitation) each class of common stock and
preferred stock of such Person if such Person is a corporation and each general
and limited partnership interest of such Person if such Person is a partnership.
"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, including funds for which the Trustee,
its parent holding company or any affiliate or subsidiary of the Trustee or such
holding company provide investment advisory or other management services.
"Change of Control" means (i) any sale, transfer or other
conveyance, whether direct or indirect, of all or substantially all of the
assets of the Company, on a consolidated basis, in one transaction or a series
of related transactions, if, immediately after giving effect to such
transaction, any "person" or "group" (as such terms are used for purposes of
Sections 13(d) and 14(d) of the Exchange Act, whether or not applicable), other
than an Excluded Person or Excluded Group, is or becomes the "beneficial owner"
(as such term is used in Rule 13d-3 promulgated pursuant to the Exchange Act),
directly or indirectly, of Voting Stock representing more than 50% of the voting
power of the Voting Stock of the transferee, (ii) any "person" or "group" (as
such terms are used for purposes of Sections 13(d) and 14(d) of the Exchange
Act, whether or not applicable), other than an Excluded Person or Excluded
Group, is or becomes the "beneficial owner" (as such term is used in Rule 13d-3
promulgated pursuant to the Exchange Act), directly or indirectly, of Voting
Stock representing more than 50% of the voting power of the Voting Stock of the
Company then outstanding normally entitled to vote in elections of directors, or
(iii) during any period of 12 consecutive months after the Issue Date,
individuals who at the beginning of any such 12-month period constituted the
Board of Directors of the Company (together with any new directors whose
election by such Board or whose nomination for election by the Excluded Persons
or any Excluded Group or the shareholders of the Company was approved by a vote
of a majority of the directors then still in office who were either directors at
the beginning of such period or whose election or nomination for election was
previously so approved) cease for any reason to constitute a majority of the
Board of Directors of the Company then in office.
"Change of Control Offer" shall have the meaning specified in
Section 11.1.
"Change of Control Offer Period" shall have the meaning
specified in Section 11.1.
"Change of Control Purchase Date" shall have the meaning
specified in Section 11.1.
"Change of Control Purchase Price" shall have the meaning
specified in Section 11.1.
"Closing Price" on any Trading Day with respect to the per
share price of any shares of Capital Stock means the last reported sale price
regular way or, in case no such reported sale takes place on such day, the
average of the reported closing bid and asked prices regular way, in either case
on the New York Stock Exchange or, if such shares of Capital Stock are not
listed or admitted to trading on such exchange, on the principal national
securities exchange on which such shares are listed or admitted to trading or,
if not listed or admitted to trading on any national securities exchange, on
Nasdaq National Market or, if such shares are not listed or admitted to trading
on any national securities exchange or quoted on Nasdaq National Market but the
issuer is a Foreign Issuer (as defined in Rule 3b-4(b) under the Exchange Act)
and the principal securities exchange on which such shares are listed or
admitted to trading is a Designated Offshore Securities Market (as defined in
Rule 902(a) under the Securities Act), the average of the reported closing bid
and asked prices regular way on such principal exchange, or, if such shares are
not listed or admitted to trading on any national securities exchange or quoted
on Nasdaq National Market and the issuer and principal securities exchange do
not meet such requirements, the average of the closing bid and asked prices in
the over-the-counter market as furnished by any New York Stock Exchange member
firm is selected from time to time by the Issuer for that purpose and is
reasonably acceptable to the Trustee.
"Code" means the Internal Revenue Code of 1986, as amended.
"Company" means the party named as such in this Indenture
until a successor replaces it pursuant to the Indenture, and thereafter means
such successor.
"Company Order" or "Company Request" means a written request
or order signed in the name of the Company by any one of its Chairman of the
Board, its President, its Chief Executive Officer, its Chief Financial Officer
or a Vice President (regardless of Vice Presidential designation), and any one
of its Treasurer, or Assistant Treasurer, its Secretary or an Assistant
Secretary, and delivered to the Trustee.
"Consolidated Interest Expense" of any Person means, for any
period, the aggregate amount (without duplication and determined in each case in
accordance with GAAP) of (a) interest expensed or capitalized, paid, accrued, or
scheduled to be paid or accrued (including, in accordance with the following
sentence, interest attributable to the Capitalized Lease Obligations) of such
Person and its consolidated Subsidiaries during such period, including (i)
original issue discount and non-cash interest payments or accruals on any
Indebtedness, (ii) the interest portion of all deferred payment obligations, and
(iii) all commissions, discounts and other fees and charges owed with respect to
bankers' acceptances and letters of credit financings and currency and Interest
Rate Protection Agreements, in each case to the extent attributable to such
period, and (b) the amount of cash dividends accrued or payable by such Person
or any of its consolidated Restricted Subsidiaries in respect of Preferred Stock
(other than by Restricted Subsidiaries of such Person to such Person or such
Person's Wholly Owned Subsidiaries). For purposes of this definition, (x)
interest on a Capitalized Lease Obligation shall be deemed to accrue at an
interest rate reasonably determined by the Company to be the rate of interest
implicit in such Capitalized Lease Obligation in accordance with GAAP and (y)
interest expense attributable to any Indebtedness represented by the guaranty by
such Person or a Subsidiary of such Person of an obligation of another Person
shall be deemed to be the interest expense attributable to the Indebtedness
guaranteed. When the foregoing definition is used in connection with the Company
and its Restricted Subsidiaries, references to a Person and its Subsidiaries in
the foregoing definition shall be deemed to refer to the Company and its
Restricted Subsidiaries.
"Consolidated Net Income" of any Person for any period means
the net income (or loss) of such Person and its consolidated Subsidiaries for
such period, determined (on a consolidated basis) in accordance with GAAP,
adjusted to exclude (only to the extent included in computing such net income
(or loss) and without duplication) (i) all extraordinary gains or losses and all
gains and losses from the sales or other dispositions of assets out of the
ordinary course of business (net of taxes, fees and expenses relating to the
transaction giving rise thereto) for such period), (ii) the net income, if
positive, of any Person, that is not a Subsidiary in which such Person or any of
its Subsidiaries has an interest, except to the extent of the amount of
dividends or distributions actually paid to such Person or a Subsidiary of such
Person that both (x) are actually paid in cash to such Person or a Subsidiary of
such Person during such period and (y) when taken together with all other
dividends and distributions paid during such period in cash to such Person or a
Subsidiary of such Person, are not in excess of such Person's pro rata share of
such other Person's aggregate net income earned during such period, (iii) except
as provided in the definition of "Annualized Operating Cash Flow Ratio," the net
income (or loss) of any Subsidiary acquired in a pooling of interests
transaction for any period prior to the date of such acquisition, (iv) for
purposes of Section 4.3, the net income, if positive, of any Subsidiary of such
Person to the extent that the declaration or payment of dividends or similar
distributions is not at the time permitted by operation of the terms of its
charter or any agreement or instrument applicable to such Subsidiary, and (v)
the cumulative effect of a change in accounting principles. When the foregoing
definition is used in connection with the Company and its Restricted
Subsidiaries, references to a Person and its Subsidiaries in the foregoing
definition shall be deemed to refer to the Company and its Restricted
Subsidiaries.
"Convertible Notes" means the 10 3/4% Senior Subordinated
Convertible Discount Notes due 2004 of PriCellular.
"Corporate Trust Office" means the principal office of the
Trustee at which at any particular time its corporate trust business shall be
administered, which address as of the date hereof is located at 101 California
Street, Suite 2725, San Francisco, California 94111 and, for the purposes
required for Section 4.2 hereunder, c/o The Chase Manhattan Bank, 55 Water
Street, Room 234, North Building, New York, New York 10041.
"Covenant Defeasance" shall have the meaning specified in
Section 8.3.
"Credit Facility" means, that certain Credit Facility to be
entered into among a Restricted Subsidiary of the Company, Merrill Lynch Capital
Corporation, Toronto Dominion (Texas), Inc., and the other financial
institutions a party thereto, as such agreement in whole or in part, may be, in
one or more agreements with one or more bank lending groups, 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 Issuer or any Restricted Subsidiary is a party including
to increase the commitments thereunder or to add or eliminate borrowers or
guarantors thereunder.
"Custodian" means any receiver, trustee, assignee, liquidator,
sequestrator or similar official under any Bankruptcy Law.
"Default" means any event or condition that is, or after
notice or passage of time or both would be, an Event of Default.
"Defaulted Interest" shall have the meaning specified in
Section 2.12.
"Definitive Securities" means Securities that are in the form
of Security attached hereto as Exhibit A that do not include the information
called for by footnotes 1 and 3 thereof.
"Depositary" means, with respect to the Securities issuable or
issued in whole or in part in global form, the person specified in Section 2.3
as the Depositary with respect to the Securities, until a successor shall have
been appointed and become such pursuant to the applicable provision of this
Indenture, and, thereafter, "Depositary" shall mean or include such successor.
"Disqualified Capital Stock" means, with respect to any
Person, Capital Stock of such Person that, by its terms or by the terms of any
security into which it is convertible, exercisable or exchangeable, is, or upon
the happening of any event or the passage of time would be, required to be
redeemed or repurchased (including at the option of the holder thereof) by such
Person or any of its Subsidiaries, in whole or in part, on or prior to the
Stated Maturity of the Securities; provided that (a) Capital Stock will not be
deemed to be Disqualified Capital Stock if it may only be so redeemed or
repurchased solely in consideration of Qualified Capital Stock of the Issuer and
(b) any Capital Stock that would not constitute Disqualified Capital Stock but
for provisions thereof giving holders thereof the right to require such Person
to repurchase or redeem such Capital Stock upon the occurrence of an "asset
sale" or "change of control" occurring prior to the Stated Maturity of the
Securities shall not constitute Disqualified Capital Stock if the "asset sale"
or "change of control" provisions applicable to such Capital Stock are no more
favorable to the holders of such Capital Stock than the provisions contained in
Sections 4.14 and 11.1 hereof and such Capital Stock specifically provides that
such Person will not repurchase or redeem any such stock pursuant to such
provision prior to the Company's repurchase of such Securities as are required
to be repurchased pursuant to the provisions contained in Sections 4.14 and 11.1
hereof.
"Eligible Institution" means a commercial banking institution
that has combined capital and surplus of not less than $500 million or its
equivalent in foreign currency, whose debt is rated "A-3" or higher, "A-" or
higher or "A-" or higher according to Moody's Investor Service, Inc., Standard &
Poor's Ratings Group or Duff & Phelps Credit Rating Co. (or such similar
equivalent rating by at least one "nationally recognized statistical rating
organization" (as defined in Rule 436 under the Securities Act)) respectively,
at the time as of which any investment or rollover therein is made.
"Equity Investors" means collectively, Spectrum Equity
Investors II, L.P., Providence Equity Partners, L.P. and the other Persons
listed as "Principal Stockholders" in the Offering Memorandum.
"Escrow and Pledge Account" means an account established with
the Trustee pursuant to the terms of the Pledge and Escrow Agreement for the
deposit of the net proceeds realized from the sale of the Notes, together with
the Additional Escrow Amount; and after the Merger such account will hold the
Pledged Securities purchased by the Issuer with a portion of the net proceeds
from the Offering.
"Escrow Funds" means the net proceeds of the Offering and an
equity contribution from the Equity Investors of $20.0 million, all held in the
Escrow and Pledge Account pursuant to the Pledge and Escrow Agreement.
"Event of Default" shall have the meaning specified in Section
6.1.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated by the SEC thereunder.
"Exchange Offer Registration Statement" means the registration
statement under the Securities Act contemplated by Section 2.1 of the
Registration Rights Agreement.
"Exchange Securities" means the 10 1/2% Series B Senior Notes
due 2008 to be issued pursuant to this Indenture in connection with the offer to
exchange Exchange Securities for the Initial Securities that may be made by the
Company pursuant to the Registration Rights Agreement.
"Excluded Group" means a "group" (as such term is used in
Sections 13(d) and 14(d) of the Exchange Act) that includes one or more Excluded
Persons; provided that the voting power of the Capital Stock of the Company
"beneficially owned" (as such term is used in Rule 13d-3 promulgated under the
Exchange Act) by such Excluded Persons (without attribution to such Excluded
Persons of the ownership by other members of the "group") represents a majority
of the voting power of the Capital Stock "beneficially owned" (as such term is
used in Rule 13d-3 promulgated under the Exchange Act) by such group.
"Excluded Person" means Spectrum Equity Investors, Providence
Equity Partners and MLC Industries, Inc. and any Affiliate of any of the
foregoing that is directly or indirectly controlling or controlled by, or under
direct or indirect common control with, any of the foregoing.
"Final Put Date" shall have the meaning specified in Section
4.14.
"GAAP" means generally accepted accounting principles set
forth in the opinions and pronouncements of the Accounting Principles Board of
the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board ("FASB") or, if FASB
ceases to exist, any successor thereto; provided, however, that for purposes of
determining compliance with covenants in the Indenture, "GAAP" means such
generally accepted accounting principles as in effect as of the Issue Date.
"Global Security" means a Security that contains the paragraph
referred to in footnote 1 and the additional schedule referred to in footnote 3
to the form of Security attached hereto as Exhibit A.
"Government Securities" means non-callable direct obligations
of, or obligations guaranteed by, the United States of America for the payment
of which obligations or guarantee the full faith and credit of the United States
is pledged and which have a remaining weighted average life to maturity of not
more than the date of the interest payment as to which such Investment in the
Government Security is intended to pay.
"Holder" or "Securityholder" means a Person in whose name a
Security is registered. The Holder of a Security will be treated as the owner of
such Security for all purposes.
"Incur" shall have the meaning specified in Section 4.11.
"Indebtedness" of any Person means, without duplication, (a)
all liabilities and obligations, contingent or otherwise, of such Person, (i) in
respect of borrowed money (whether or not the recourse of the lender is to the
whole of the assets of such Person or only to a portion thereof), (ii) evidenced
by bonds, notes, debentures or similar instruments, (iii) representing the
balance deferred and unpaid of the purchase price of any property or services
except (other than accounts payable or other obligations to trade creditors
which have remained unpaid for greater than 90 days past their original due date
or to financial institutions, which obligations are not being contested in good
faith and for which appropriate reserves have been established) those incurred
in the ordinary course of its business that would constitute ordinarily a trade
payable to trade creditors, (iv) evidenced by bankers' acceptances or similar
instruments issued or accepted by banks, (v) for the payment of money relating
to a Capitalized Lease Obligation, or (vi) evidenced by a letter of credit or a
reimbursement obligation of such Person with respect to any letter of credit;
(b) all obligations of such Person under Interest Rate Protection Agreements;
(c) all liabilities of others of the kind described in the preceding clauses (a)
or (b) that such Person has guaranteed or that is otherwise its legal liability
or which are secured by any assets or property of such Person and all
obligations to purchase, redeem or acquire any Capital Stock; (d) all
Disqualified Capital Stock of such Person and all Preferred Stock of such
Person's Restricted Subsidiaries and (e) any and all deferrals, renewals,
extensions, refinancing and refundings (whether direct or indirect) of, or
amendments, modifications or supplements to, any liability of the kind described
in any of the preceding clauses (a), (b), (c), (d) or this clause (e), whether
or not between or among the same parties; provided that the outstanding
principal amount at any date of any Indebtedness issued with original issue
discount is the face amount of such Indebtedness less the remaining unamortized
portion of the original issue discount of such Indebtedness at such date.
"Indenture" means this Indenture, as amended or supplemented
from time to time in accordance with the terms hereof.
"Initial Purchasers" means Merrill Lynch, Pierce, Fenner &
Smith Incorporated, TD Securities (USA) Inc., and Wasserstein Perella
Securities, Inc.
"Initial Securities" means the 10 1/2% Series A Senior Notes
due 2008, as supplemented from time to time in accordance with the terms hereof,
issued pursuant to this Indenture.
"Interest Payment Date" means the stated due date of an
installment of interest on the Securities.
"Interest Rate Protection Agreement" means, with respect to
any Person, the Obligations of such Person under (a) interest rate swap
agreements, interest rate cap agreements and interest rate collar agreements and
(b) other agreements or arrangements designed to protect such Person against
fluctuations in interest rates. For purposes of this Indenture, the amount of
such obligations shall be the amount determined in respect thereof as of the end
of the then most recently ended fiscal quarter of such Person, based on the
assumption that such obligation had terminated at the end of such fiscal
quarter, and in making such determination, if any agreement relating to such
obligation provides for the netting of amounts payable by and to such Person
thereunder of if any such agreement provides for the simultaneous payment of
amounts by and to such Person, then in each such case, the amount of such
obligations shall be the net amount so determined, plus any premium due upon
default by such Person.
"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 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 Section 4.3, (i) "Investment" shall
include and be valued at the fair market value of the net assets of any
Restricted Subsidiary at the time that such Restricted Subsidiary is designated
an Unrestricted Subsidiary and shall exclude the fair market value of the net
assets of any Unrestricted Subsidiary at the time that such Unrestricted
Subsidiary is designated a Restricted Subsidiary and (ii) the amount of any
Investment shall be the fair market value of such Investment plus the fair
market value of all additional Investments by the Company or any of its
Restricted Subsidiaries at the time any such Investment is made; provided that,
for purposes of this sentence, the fair market value of net assets in excess of
$5,000,000 shall be as determined by an independent appraiser of national
reputation.
"Issue Date" means the time and date of the first issuance of
the Securities under the Indenture.
"Junior Indebtedness" means Indebtedness of the Company that
(i) requires no payment of principal prior to or on the date on which all
principal of and interest on the Securities is paid in full and (ii) is
subordinate and junior in right of payment to the Securities in all respects.
"Legal Defeasance" shall have the meaning specified in Section
8.2.
"Legal Holiday" shall have the meaning specified in Section
13.7.
"Lien" means any mortgage, lien, pledge, charge, security
interest, or other encumbrance of any kind, whether or not filed, recorded or
otherwise perfected under applicable law (including any conditional sale or
other title retention agreement and any lease deemed to constitute a security
interest and any option or other agreement to give any security interest).
"Marketable U.S. Securities" means: (i) Government Securities;
(ii) any time deposit account, money market deposit and certificate of deposit
maturing not more than 270 days after the date of acquisition issued by, or time
deposit of, an Eligible Institution; (iii) commercial paper maturing not more
than 270 days after the date of acquisition issued by a corporation (other than
an Affiliate of the Issuer) with a rating, at the time as of which any
investment therein is made, of "P-1" or higher according to Moody's Investors
Service, Inc., "A-1" or higher according to Standard & Poor's Ratings Group or
"A-1" or higher according to Duff & Phelps Credit Rating Co. (or such similar
equivalent rating by at least one "nationally recognized statistical rating
organization" (as defined in Rule 436 under the Securities Act)); (iv) any
banker's acceptances or money market deposit accounts issued or offered by an
Eligible Institution; (v) repurchase obligations with a term of not more than 7
days for Government Securities entered into with an Eligible Institution; and
(vi) any fund investing exclusively in investments of the types described in
clauses (i) through (v) above, including funds for which the Trustee, its parent
holding company or any affiliate or subsidiary of the Trustee or such holding
company provides investment advisory or other management services.
"Maturity Date" means, when used with respect to any Security,
the date specified on such Security as the fixed date on which the final
installment of principal of such Security is due and payable (in the absence of
any acceleration thereof pursuant to the provisions of the Indenture regarding
acceleration of Indebtedness or any Change of Control Offer, or Asset Sale
Offer).
"Merger" means the merger of American Cellular Corporation
with and into PriCellular Corporation, pursuant to the Merger Agreement.
"Merger Agreement" means that certain Agreement and Plan of
Merger, dated as of March 6, 1998 between PriCellular Corporation and American
Cellular Corporation.
"Merger Date" means the date upon which the Merger is
consummated.
"Minimum Accumulation Date" shall have the meaning specified
in Section 4.14.
"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 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 (i) 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 and (ii) the
aggregate amount of cash so received which is used to retire any existing Senior
Indebtedness of the Company or Indebtedness of its Restricted Subsidiaries, as
the case may be, which is required to be repaid in connection with such Asset
Sale or is secured by a Lien on the property or assets of the Company or any of
its Restricted Subsidiaries, as the case may be.
"Net Proceeds" means the aggregate net proceeds (including the
fair market value of non-cash proceeds constituting equipment or other assets of
a type generally used in a Related Business an amount reasonably determined by
the Board of Directors of the Company for amounts under $5,000,000 and by a
financial advisor or appraiser of national reputation for equal or greater
amounts) received by a Person from the sale of Qualified Capital Stock (other
than to a Subsidiary of such Person) after payment of out-of-pocket expenses,
commissions and discounts incurred in connection therewith.
"Non-U.S. Person" means a Person that is not a "U.S. Person"
as defined in Regulation S under the Securities Act.
"Notice of Default" shall have the meaning specified in
Section 6.1(3).
"Obligation" means any principal, premium, interest (including
interest accruing subsequent to a bankruptcy or other similar proceeding whether
or not such interest is an allowed claim enforceable against the Company in a
bankruptcy case under Federal bankruptcy law), penalties, fees,
indemnifications, reimbursements, damages and other liabilities payable pursuant
to the terms of the documentation governing any Indebtedness.
"Offering" means the offering of the Securities by the
Company.
"Offering Memorandum" means that certain Offering Memorandum
of the Company, dated May 6, 1998, relating to the original issuance and sale of
the Initial Securities to the Initial Purchasers.
"Officer" means, with respect to the Company, the Chief
Executive Officer, the President, any Vice President, the Chief Financial
Officer, the Treasurer, the Controller, or the Secretary of the Company.
"Officers' Certificate" means, with respect to the Company, a
certificate signed by two Officers or by an Officer and an Assistant Secretary
of the Company, respectively, and otherwise complying with the requirements of
Sections 13.4 and 13.5.
"Old Notes" means the 10 3/4% Senior Notes due 2004 of
PriCellular Wireless Corporation ("Wireless"), the 12 1/4% Senior Subordinated
Notes due 2003 of Wireless and the 14% Senior Subordinated Discount Notes due
2001 of Wireless.
"Operating Cash Flow" of any Person means (a) with respect to
any period, 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 consolidated
Subsidiaries, (ii) depreciation, amortization and other non-cash charges of such
Person and its consolidated 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 consolidated Subsidiaries in accordance with GAAP,
less (c) 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. When the foregoing definition is used in connection with the
Company and its Restricted Subsidiaries, references to a Person and its
Subsidiaries in the foregoing definition shall be deemed to refer to the Company
and its Restricted Subsidiaries.
"Opinion of Counsel" means a written opinion from legal
counsel who is reasonably acceptable to the Trustee complying with the
requirements of Sections 13.4 and 13.5.
"Paying Agent" shall have the meaning specified in Section
2.3.
"Permitted Investment" means (i) Investments in Cash
Equivalents; (ii) Investments in the Company or a Restricted Subsidiary; (iii)
Investments in a Person substantially all of whose assets are of a type
generally used in a Related Business (an "Acquired Person") if, as a result of
such Investments, (A) the Acquired Person immediately thereupon becomes a
Restricted Subsidiary or (B) the Acquired Person immediately thereupon either
(1) is merged or consolidated with or into the Company or any of its Restricted
Subsidiaries and the surviving Person is the Company or a Restricted Subsidiary
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) any securities received in connection with an Asset Sale and any
Investment with the Net Cash Proceeds from any Asset Sale in Capital Stock of a
Person, all or substantially all of whose assets are of a type used in a Related
Business, that complies with Section 4.14; (vi) any guarantee issued by a
Restricted Subsidiary incurred in compliance with the Indenture; (vii) advances
and prepayments for asset purchases in the ordinary course of business in a
Related Business of the Company or a Restricted Subsidiary; (viii) loans made to
certain officers upon the Merger Date, the term of which will not exceed one
year and the aggregate outstanding balance of which will not exceed $2.0
million; (ix) 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; (x) Investments in Permitted Joint Ventures which in the
aggregate at any one time outstanding do not exceed $15.0 million; and (xi)
Investments which in the aggregate at any one time outstanding do not exceed
$5.0 million; provided, however, such Investments may be increased to $10.0
million in the aggregate provided that Wireless' Annualized Operating Cash Flow
Ratio, after giving effect to such Investments, would have been less than 6.25
to 1.00.
"Permitted Joint Venture" means, as applied to any Person, any
other Person (a) engaged in a Related Business, (b) over which such Person is
responsible (either directly or through a services agreement) for day-to-day
operations or otherwise has operational and managerial control or (c) of which
more than forty percent (40%) of the outstanding Voting Stock (other than
directors' qualifying shares) 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.
"Permitted Lien" means (a) Liens existing on the Issue Date;
(b) Liens imposed by governmental authorities for taxes, assessments or other
charges not yet subject to penalty or which are being contested in good faith
and by appropriate proceedings, if adequate reserves with respect thereto are
maintained on the books of the Company in accordance with GAAP; (c) statutory
liens of carriers, warehousemen, mechanics, materialmen, landlords, repairmen or
other like Liens arising by operation of law in the ordinary course of business,
provided that (i) the underlying obligations are not overdue for a period of
more than 30 days, and (ii) such Liens are being contested in good faith and by
appropriate proceedings and adequate reserves with respect thereto are
maintained on the books of the Company in accordance with GAAP; (d) Liens
securing the performance of bids, trade contracts (other than borrowed money),
leases, statutory obligations, surety and appeal bonds, performance bonds and
other obligations of a like nature incurred in the ordinary course of business;
(e) easements, rights-of-way, zoning, similar restrictions and other similar
encumbrances or title defects which, singly or in the aggregate, do not in any
case materially detract from the value of the property, subject thereto (as such
property is used by the Company or any of its Restricted Subsidiaries) or
interfere with the ordinary conduct of the business of the Company or any of its
Restricted Subsidiaries; (f) Liens arising by operation of law in connection
with judgments, only to the extent, for an amount and for a period not resulting
in an Event of Default with respect thereto; (g) pledges or deposits made in the
ordinary course of business in connection with worker's compensation,
unemployment insurance and other types of social security legislation; (h) Liens
in favor of the Trustee arising under the Indenture; (i) Liens securing the
Credit Facility; (j) Liens securing Indebtedness of a Person existing at the
time such Person becomes a Restricted Subsidiary or is merged with or into the
Company or a Restricted Subsidiary, provided that such Liens were in existence
prior to the date of such acquisition, merger or consolidation, were not
incurred in anticipation thereof, and do not extend to any other assets; (k)
Liens arising from Purchase Money Indebtedness permitted under the Indenture;
(l) Liens securing Refinancing Indebtedness Incurred to refinance any
Indebtedness that was previously so secured in a manner no more adverse to the
Holders of the Securities than the terms of the Liens securing such refinanced
Indebtedness; (m) Liens securing Indebtedness (including Capital Lease
Obligations) permitted by clause (vi) of Section 4.11; and (n) Liens in favor of
the Company or a Wholly Owned Restricted Subsidiary.
"Person" means any corporation, individual, joint stock
company, joint venture, partnership, unincorporated association, governmental
regulatory entity, country, state or political subdivision thereof, trust,
municipality or other entity.
"Pledge and Escrow Agreement" means the Pledge and Escrow
Agreement, dated as of the date of the Indenture, between the Company and the
Trustee.
"Pledged Securities" means the securities purchased by the
Company with a portion of the net proceeds from the Offering to be deposited in
the Escrow and Pledge Account.
"Preferred Stock" means Capital Stock, other than common stock
of an issuer having no preferences or privileges as to the payment of dividends
or the distribution of the issuer's assets over any other class of such issuer's
Capital Stock.
"PriCellular" means PriCellular Corporation, a Delaware
corporation.
"PriCellular Class A Shares" means shares of Class A Common
Stock, par value $0.01 per share, of PriCellular.
"PriCellular Class B Shares" means shares of Class B Common
Stock, par value $0.01 per share, of PriCellular.
"PriCellular Class A Preferred Stock" means shares of Series A
Cumulative Convertible Preferred Stock, par value $0.01 per share, of
PriCellular.
"Principal" of any Indebtedness means the principal of such
Indebtedness plus, without duplication, applicable premium, if any, on such
Indebtedness.
"Private Placement Legend" means the legend set forth on the
face of the form of Security attached hereto as Exhibit A.
"Property" means any right or interest in or to property or
assets of any kind whatsoever, whether real, personal or mixed and whether
tangible or intangible.
"Public Equity Offering" means an offer and sale of common
stock (which is Qualified Capital Stock) of the Company, with aggregate proceeds
of at least $50 million pursuant to a registration statement that has been
declared effective by the Commission pursuant to the Securities Act (other than
a registration statement on Form S-8, S-4 or otherwise relating to equity
securities issuable under any employee benefit plan of such corporate entity).
"Purchase Agreement" means that certain Purchase Agreement
dated May 6, 1998 by and among the Company and the Initial Purchasers, as such
agreement may be amended, modified or supplemented from time to time in
accordance with the terms thereof.
"Purchase Money Indebtedness" means Indebtedness of the
Company or its Restricted Subsidiaries Incurred in connection with the purchase
of property or assets for the business of the Company or its Restricted
Subsidiaries, provided that the recourse of the lenders with respect to such
Indebtedness is limited solely to the property or assets so purchased without
further recourse to either the Company or any of its Restricted Subsidiaries.
"Qualified Capital Stock" means any Capital Stock of a Person
that is not Disqualified Capital Stock.
"Record Date" means a Record Date specified in the Securities
whether or not such Record Date is a Business Day.
"Redemption Date," when used with respect to any Security to
be redeemed, means the date fixed for such redemption pursuant to Article III of
this Indenture and Paragraph 5 in the form of Security attached hereto as
Exhibit A.
"Redemption Price," when used with respect to any Security to
be redeemed pursuant to any provision in this Indenture means the price at which
it is to be redeemed pursuant to this Indenture, which shall include, without
duplication, in each case, any accrued and unpaid interest to the Redemption
Date.
"Reference Period" with regard to any Person means the last
two full fiscal quarters of such Person for which financial information (which
the Company shall use its best efforts to compile in a timely manner) in respect
thereof is available ended on or immediately preceding any date upon which any
determination is to be made pursuant to the terms of the Securities or the
Indenture.
"Refinancing Indebtedness" means any Indebtedness of the
Issuer or any of its Restricted Subsidiaries issued in exchange for, or the net
proceeds of which are used to extend, refinance, renew, replace, defease or
refund other Indebtedness of the Issuer or such Restricted Subsidiary (other
than intercompany Indebtedness); provided that: (i) the principal amount (or
accreted value, if applicable) of such Refinancing Indebtedness does not exceed
the principal amount of (or accreted value, if applicable) plus accrued interest
on, the Indebtedness so extended, refinanced, renewed, replaced, defeased or
refunded (plus the amount of reasonable expenses incurred in connection
therewith); (ii) such Refinancing Indebtedness has a final maturity date later
than the final maturity date of, and has a Weighted Average Life equal to or
greater than the Weighted Average Life of, the Indebtedness being extended,
refinanced, renewed, replaced, defeased or refunded; (iii) if the Indebtedness
being extended, refinanced, renewed, replaced, defeased or refunded is
subordinated in right of payment to the Notes, such Refinancing Indebtedness has
a final maturity date later than the final maturity date of, and is subordinated
in right of payment to, the Notes on terms at least as favorable to the holders
of Notes as those contained in the documentation governing the Indebtedness
being extended, refinanced, renewed, replaced, defeased or refunded; and (iv)
such Indebtedness is incurred either by the Issuer or by the Restricted
Subsidiary who is the obligor on the Indebtedness being extended, refinanced,
renewed, replaced, defeased or refunded.
"Registrar" shall have the meaning specified in Section 2.3.
"Registration Rights Agreement" means the Registration Rights
Agreement dated May 13, 1998 by and among the Initial Purchasers and the
Company, as such agreement may be amended, modified or supplemented from time to
time in accordance with the terms thereof.
"Regulation S" means Regulation S under the Securities Act, as
amended from time to time.
"Regulation S Global Securities" means one or more permanent
global Securities in registered form representing the aggregate principal amount
of Securities sold in reliance on Regulation S under the Securities Act.
"Related Business" means any business related to, or
complementary to, the ownership, development, operation, or acquisition of
wireless communications systems as determined by the Board of Directors of the
Company.
"Related Person" means, with respect to any Person, (i) any
Affiliate of such Person or any spouse, immediate family member, or other
relative who has the same principal residence of any Affiliate of such Person
and (ii) any trust in which any Person described in clause (i) above, has a
beneficial interest.
"Restricted Partnership" shall have the meaning specified in
Section 4.19.
"Restricted Payment" means, with respect to any Person, (i)
any dividend or other distribution on shares of Capital Stock of such Person or
any Subsidiary of such Person, (ii) any payment on account of the purchase,
redemption or other acquisition or retirement for value, or any payment in
respect of any amendment (in anticipation of or in connection with any such
retirement, acquisition or defeasance) in whole or in part, of any shares of
Capital Stock of such Person or any Subsidiary of such Person held by Persons
other than such Person or any of its Restricted Subsidiaries, (iii) any
defeasance, redemption, repurchase or other acquisition or retirement for value,
or any payment in respect of any amendment (in anticipation of or in connection
with any such retirement, acquisition or defeasance) in whole or in part, of any
Indebtedness of the Company (other than the scheduled repayment thereof at
maturity and any mandatory redemption or mandatory repurchase thereof pursuant
to the terms thereof) by such Person or a Subsidiary of such Person that is
subordinate in right of payment to the Securities (other than in exchange for
Refinancing Indebtedness permitted to be Incurred under the Indenture and except
for any such defeasance, redemption, repurchase, other acquisition or payment in
respect of Indebtedness held by any Restricted Subsidiary) and (iv) any
Investment (other than a Permitted Investment); provided, however, that the term
"Restricted Payment" does not include (i) any dividend, distribution or other
payment on shares of Capital Stock of the Company or any Restricted Subsidiary
solely in shares of Qualified Capital Stock, (ii) any dividend, distribution or
other payment to the Company, or any dividend to any of its Restricted
Subsidiaries, by any of its Subsidiaries, (iii) any dividend, distribution or
other payment by any Restricted Subsidiary on shares of its Capital Stock that
is paid pro rata to all holders of such Capital Stock, and (iv) the purchase,
redemption or other acquisition or retirement for value of shares of Capital
Stock of any Restricted Subsidiary held by Persons other than the Company or any
of its Restricted Subsidiaries.
"Restricted Period" means the period through and including the
40th day after the later of the commencement of the Offering and the original
issue date of the Securities.
"Restricted Security" means a Security, unless or until it has
been (i) disposed of in a transaction effectively registered under the
Securities Act or (ii) distributed to the public pursuant to Rule 144 (or any
similar provision then in force) under the Securities Act; provided that in no
case shall an Exchange Security issued in accordance with this Indenture and the
terms and provisions of the Registration Rights Agreement be a Restricted
Security.
"Restricted Subsidiary" means any Subsidiary of the Company
which at the time of determination is not an Unrestricted Subsidiary. The Board
of Directors of the Company may designate any Unrestricted Subsidiary to be a
Restricted Subsidiary only if, immediately before and after giving effect to
such designation, there would exist no Default or Event of Default and the
Company could incur at least $1.00 of Indebtedness pursuant to the Annualized
Operating Cash Flow Ratio test of Section 4.11, on a pro forma basis, taking
into account such designation.
"Rule 144A" means Rule 144A under the Securities Act, as
amended from time to time.
"Rule 144A Global Securities" means one or more permanent
Global Securities in registered form representing the aggregate principal amount
of Securities sold in reliance on Rule 144A under the Securities Act.
"SEC" means the Securities and Exchange Commission.
"Securities" means, collectively, the Initial Securities and,
when and if issued as provided in the Registration Rights Agreement, the
Exchange Securities.
"Securities Act" means the Securities Act of 1933, as amended,
and the rules and regulations of the SEC promulgated thereunder.
"Securities Custodian" means the Trustee, as custodian with
respect to the Securities in global form, or any successor entity thereto.
"Senior Indebtedness" means all Indebtedness of the Company
(including, with respect to the Credit Facility, all Obligations) including
interest thereon, whether outstanding on the Issue Date or thereafter issued,
other than (a) Indebtedness that is expressly subordinated or junior in right of
payment to any Indebtedness of the Company, (b) Indebtedness represented by
Disqualified Capital Stock, (c) any liability for federal, state, local or other
taxes owed or owing by the Company, (d) Indebtedness of the Company to any
Subsidiary of the Company or any Affiliate of the Company, (e) trade payables
and (f) Indebtedness incurred in violation of the Indenture.
"Series B Global Securities" means one or more permanent
Global Securities in registered form representing the aggregate principal amount
of Series B Securities exchanged for Series A Securities pursuant to the
Exchange Offer.
"Significant Restricted Subsidiary" means one or more
Restricted Subsidiaries having an aggregate net book value of assets in excess
of 5% of the net book value of the assets of the Company and its Restricted
Subsidiaries on a consolidated basis.
"Special Record Date" for payment of any Defaulted Interest
means a date fixed by the Trustee pursuant to Section 2.12.
"Special Redemption Price" has the meaning set forth in
Section 3.8.
"Special Rights" shall have the meaning specified in Section
4.19.
"Stated Maturity" means the date fixed for the payment of any
principal or premium pursuant to the Indenture and the Securities, including the
Maturity Date, upon redemption, acceleration, Asset Sale Offer, Change of
Control Offer or otherwise.
"Strategic Equity Investor" means any Person which is (or a
controlled Affiliate of any Person which is) engaged in the ownership,
development, operation or acquisition of communications systems and which, as of
the last available annual or quarterly financial statements, has Total Common
Equity of at least $1.0 billion.
"Strategic Equity Offering" means an offer or sale of common
stock or Preferred Stock (other than Disqualified Capital Stock) of the Company,
with aggregate proceeds of at least $50.0 million to a Strategic Equity Investor
other than in connection with or after the occurrence of a Change of Control.
"Subsidiary" with respect to any Person, means (i) a
corporation at least fifty percent of whose Capital Stock with voting power,
under ordinary circumstances, to elect directors is at the time, directly or
indirectly, owned by such Person, by such Person and one or more Subsidiaries of
such Person or by one or more Subsidiaries of such Person, or (ii) a partnership
in which such Person or a Subsidiary of such Person is, at the time, a general
partner of such partnership, or (iii) any Person in which such Person, one or
more Subsidiaries of such Person, or such Person and one or more Subsidiaries of
such Person, directly or indirectly, at the date of determination thereof has
(x) at least a fifty percent ownership interest or (y) the power to elect or
direct the election of the directors or other governing body of such Person.
"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 2.15 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.
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code
ss.ss. 77aaa-77bbbb) as in effect on the date of the execution of this
Indenture.
"Total Common Equity" of any Person means, as of any date of
determination the product of (i) the aggregate number of outstanding primary
shares of common stock of such Person on such day (which shall not include any
options or warrants on, or securities convertible or exchangeable into, shares
of common stock of such Person) and (ii) the average Closing Price of such
common stock over the 20 consecutive Trading Days immediately preceding such
day. If no such Closing Price exists with respect to shares of any such class,
the value of such shares for purposes of clause (ii) of the preceding sentence
shall be determined by the Board of Directors of the Issuer in good faith and
evidenced by a resolution of the Board of Directors filed with the Trustee.
"Trading Day," with respect to a securities exchange or
automated quotation system, means a day on which such exchange or system is open
for a full day of trading.
"Transfer Restricted Securities" means Securities that bear or
are required to bear the legend set forth on the face of the form of Security
attached hereto as Exhibit A.
"Trust Officer" means any officer within the corporate trust
division (or any successor group) of the Trustee or any other officer of the
Trustee customarily performing functions similar to those performed by the
Persons who at that time shall be such officers assigned and duly authorized by
the Trustee to administer its corporate trust matters hereunder, and also means,
with respect to a particular corporate trust matter hereunder, any other officer
of the Trustee to whom such trust matter is referred because of his knowledge of
and familiarity with the particular subject.
"Trustee" means the party named as such in this Indenture
until a successor replaces it in accordance with the provisions of this
Indenture and thereafter means such successor.
"Unrestricted Subsidiary" shall mean any Subsidiary of the
Company that, at the time of determination, shall be an Unrestricted Subsidiary
(as designated by the Board of Directors of the Company, as provided below). The
Board of Directors of the Company may designate any Subsidiary of the Company
(including any newly acquired or newly formed Subsidiary at or prior to the time
it is so formed or acquired) to be an Unrestricted Subsidiary if (a) no Default
or Event of Default is existing or will occur as a consequence thereof, (b) such
Subsidiary does not own any Capital Stock of, or own or hold any Lien on any
property or asset of, the Company or any Restricted Subsidiary that is not a
Subsidiary of the Subsidiary to be so designated and (c) such Subsidiary and
each of its Subsidiaries has not at the time of designation, and does not
thereafter, create, incur, issue, assume, guarantee, or otherwise become
directly or indirectly liable with respect to any Indebtedness pursuant to which
the lender has recourse to any property or assets of the Company or any of its
Restricted Subsidiaries (except that such Subsidiary and its Subsidiaries may
guarantee the Securities); 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, that such designation would be permitted under
Section 4.3. Each such designation shall be evidenced by filing with the Trustee
a certified copy of the resolution giving effect to such designation and an
Officers' Certificate certifying that such designation complied with the
foregoing conditions.
"U.S. Legal Tender Equivalents" means securities issued or
directly and fully guaranteed or insured by the United States of America or any
agency or instrumentality thereof with a maturity of 90 days or less (provided
that the full faith and credit of the United States of America is pledged in
support thereof).
"Voting Stock" means Capital Stock of the Company having
generally the right to vote in the election of a majority of the directors of
the Company or having generally the right to vote with respect to the
organizational matters of the Company.
"Weighted Average Life" means, when applied to any
Indebtedness at any date, the number of years obtained by dividing (i) the sum
of the products obtained by multiplying (a) the amount of each then remaining
installment, sinking fund, serial maturity or other required payments of
principal, including payment at final maturity, in respect thereof, by (b) the
number of years (calculated to the nearest one-twelfth) that will elapse between
such date and the making of such payment, by (ii) the then outstanding principal
amount of such Indebtedness.
"Wholly Owned" means, with respect to a Subsidiary of the
Company, (i) a Subsidiary that is a corporation, of which not less than 99% of
the Capital Stock (except for directors' qualifying shares or certain minority
interests owned by other Persons solely due to local law requirements that there
be more than one stockholder, but which interest is not in excess of what is
required for such purpose) is owned directly by such Person or through one or
more other Wholly Owned Subsidiaries of such Person, or (ii) any entity other
than a corporation in which such Person, directly or indirectly, owns not less
than 99% of the Capital Stock of such entity.
SECTION 1.2. Incorporation by Reference of TIA.
Whenever this Indenture refers to a provision of the TIA, such
provision is incorporated by reference in and made a part of this Indenture. The
following TIA terms used in this Indenture have the following meanings:
"Commission" means the SEC.
"indenture securities" means the Securities.
"indenture securityholder" means a Holder or a Securityholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the
Trustee.
"obligor" on the indenture securities means the Company and
any other obligor on the Securities.
All other TIA terms used in this Indenture that are defined by
the TIA, defined by TIA reference to another statute or defined by SEC rule and
not otherwise defined herein have the meanings assigned to them thereby.
SECTION 1.3. Rules of Construction.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and words in the
plural include the singular;
(5) provisions apply to successive events and transactions;
(6) "herein," "hereof" and other words of similar import refer
to this Indenture as a whole and not to any particular Article, Section or other
subdivision;
(7) references to Sections or Articles means reference to such
Section or Article in this Indenture, unless stated otherwise; and
(8) whenever in this Indenture or the Securities it is
provided that the principal amount with respect to a Security shall be paid,
such provision shall be deemed to require (whether or not so expressly stated)
the simultaneous payment of any accrued and unpaid interest to the date of
payment on such Security payable pursuant to paragraph 1 of the Securities.
ARTICLE II.
THE SECURITIES
SECTION 2.1. Form and Dating.
The Securities and the Trustee's certificate of authentication
in respect thereof shall be substantially in the form of Exhibit A hereto, which
Exhibit is part of this Indenture. The Securities may have notations, legends or
endorsements required by law, stock exchange rule or usage. The Company shall
approve the form of the Securities and any notation, legend or endorsement on
them. Any such notations, legends or endorsements not contained in the form of
Security attached as Exhibit A hereto shall be delivered in writing to the
Trustee. Each Security shall be dated the date of its authentication.
The terms and provisions contained in the forms of Securities
shall constitute, and are hereby expressly made, a part of this Indenture and,
to the extent applicable, the Company and the Trustee, by their execution and
delivery of this Indenture, expressly agree to such terms and provisions and to
be bound thereby.
SECTION 2.2. Execution and Authentication.
Two Officers shall sign, or one Officer shall sign and one
Officer shall attest to, the Securities for the Company by manual or facsimile
signature. The Company's seal shall be impressed, affixed, imprinted or
reproduced on the Securities and may be in facsimile form.
If an Officer whose signature is on a Security was an Officer
at the time of such execution but no longer holds that office at the time the
Trustee authenticates the Security, the Security shall be valid nevertheless and
the Company shall nevertheless be bound by the terms of the Securities and this
Indenture.
A Security shall not be valid until an authorized signatory of
the Trustee manually signs the certificate of authentication on the Security but
such signature shall be conclusive evidence that the Security has been
authenticated pursuant to the terms of this Indenture.
The Trustee shall authenticate Initial Securities for original
issue in the aggregate principal amount of up to $285,000,000 and shall
authenticate Exchange Securities for original issue in the aggregate principal
amount of up to $285,000,000, in each case upon a written order of the Company
in the form of an Officers' Certificate; provided that such Exchange Securities
shall be issuable only upon the valid surrender for cancellation of Initial
Securities of a like aggregate principal amount in accordance with the
Registration Rights Agreement. The Officers' Certificate shall specify the
amount of Securities to be authenticated and the date on which the Securities
are to be authenticated. The aggregate principal amount of Securities
outstanding at any time may not exceed $285,000,000, except as provided in
Section 2.7. Upon the written order of the Company in the form of an Officers'
Certificate, the Trustee shall authenticate Securities in substitution of
Securities originally issued to reflect any name change of the Company.
The Trustee may appoint an authenticating agent acceptable to
the Company to authenticate Securities. Unless otherwise provided in the
appointment, an authenticating agent may authenticate Securities whenever the
Trustee may do so. Each reference in this Indenture to authentication by the
Trustee includes authentication by such agent. An authenticating agent has the
same rights as an Agent to deal with the Company, any Affiliate of the Company,
or any of their respective Subsidiaries.
Securities shall be issuable only in registered form without
coupons in denominations of $1,000 and any integral multiple thereof. Interest
shall be payable in the manner and at the times specified in the form of
Securities attached hereto.
SECTION 2.3. Registrar and Paying Agent.
The Company shall maintain an office or agency in the Borough
of Manhattan, The City of New York, where Securities may be presented for
registration of transfer or for exchange ("Registrar") and an office or agency
where Securities may be presented for payment ("Paying Agent") and where notices
and demands to or upon the Company in respect of the Securities may be served.
The Company may act as Registrar or Paying Agent, except that, for the purposes
of Articles III, VIII, XI and Section 4.14 and as otherwise specified in this
Indenture, neither the Company nor any Affiliate of the Company shall act as
Paying Agent. The Registrar shall keep a register of the Securities and of their
transfer and exchange. The Company may have one or more co-Registrars and one or
more additional Paying Agents. The term "Paying Agent" includes any additional
Paying Agent. The Company hereby initially appoints the Trustee as Registrar and
Paying Agent, and the Trustee hereby agrees so to act.
The Company shall enter into an appropriate written agency
agreement with any Agent not a party to this Indenture, which agreement shall
implement the provisions of this Indenture that relate to such Agent. The
Company shall promptly notify the Trustee in writing of the name and address of
any such Agent. If the Company fails to maintain a Registrar or Paying Agent,
the Trustee shall act as such.
The Company initially appoints The Depository Trust Company
("DTC") to act as Depositary with respect to the Global Securities.
The Company initially appoints the Trustee to act as
Securities Custodian with respect to the Global Securities.
SECTION 2.4. Paying Agent to Hold Assets in Trust.
The Company shall require each Paying Agent other than the
Trustee to agree in writing that each Paying Agent shall hold in trust for the
benefit of the Holders or the Trustee all assets held by the Paying Agent for
the payment of principal of, premium, if any, or interest on, the Securities
(whether such assets have been distributed to it by the Company or any other
obligor on the Securities), and shall promptly notify the Trustee in writing of
any Default in making any such payment. If either of the Company or a Subsidiary
of the Company acts as Paying Agent, it shall segregate such assets and hold
them as a separate trust fund for the benefit of the Holders or the Trustee. The
Company at any time may require a Paying Agent to distribute all assets held by
it to the Trustee and account for any assets disbursed and the Trustee may at
any time during the continuance of any payment Default, upon written request to
a Paying Agent, require such Paying Agent to distribute all assets held by it to
the Trustee and to account for any assets distributed. Upon distribution to the
Trustee of all assets that shall have been delivered by the Company to the
Paying Agent, the Paying Agent (if other than the Company) shall have no further
liability for such assets.
SECTION 2.5. Securityholder Lists.
The Trustee shall preserve in as current a form as is
reasonably practicable the most recent list available to it of the names and
addresses of Holders. If the Trustee is not the Registrar, the Company shall
furnish to the Trustee on or before the third Business Day preceding each
Interest Payment Date and at such other times as the Trustee may request in
writing a list in such form and as of such date as the Trustee reasonably may
require of the names and addresses of Holders.
SECTION 2.6. [INTENTIONALLY OMITTED].
SECTION 2.7. Replacement Securities.
If a mutilated Security is surrendered to the Trustee or if
the Holder of a Security claims and submits an affidavit or other evidence,
satisfactory to the Trustee, to the Trustee to the effect that the Security has
been lost, destroyed or wrongfully taken, the Company shall issue and the
Trustee shall authenticate a replacement Security if the Trustee's requirements
are met. If required by the Trustee or the Company, such Holder must provide an
indemnity bond or other indemnity, sufficient in the judgment of both the
Company and the Trustee, to protect the Company, the Trustee or any Agent from
any loss which any of them may suffer if a Security is replaced. The Company may
charge such Holder for its reasonable, out-of-pocket expenses in replacing a
Security.
Every replacement Security is an additional obligation of the
Company.
SECTION 2.8. Outstanding Securities.
Securities outstanding at any time are all the Securities that
have been authenticated by the Trustee (including any Security represented by a
Global Security) except those canceled by it, those delivered to it for
cancellation, those reductions in the interest in a Global Security effected by
the Trustee hereunder and those described in this Section 2.8 as not
outstanding. A Security does not cease to be outstanding because the Company or
an Affiliate of the Company holds the Security, except as provided in Section
2.9.
If a Security is replaced pursuant to Section 2.7 (other than
a mutilated Security surrendered for replacement), it ceases to be outstanding
unless the Trustee receives proof satisfactory to it that the replaced Security
is held by a bona fide purchaser. A mutilated Security ceases to be outstanding
upon surrender of such Security and replacement thereof pursuant to Section 2.7.
If on a Redemption Date or the Maturity Date the Paying Agent
(other than the Company or an Affiliate of a Company) holds cash sufficient to
pay all of the principal and interest due on the Securities payable on that date
and payment of the Securities called for redemption or payable on such Maturity
Date is not otherwise prohibited pursuant to this Indenture, then on and after
that date such Securities cease to be outstanding and interest on them ceases to
accrue.
SECTION 2.9. Treasury Securities.
In determining whether the Holders of the required principal
amount of Securities have concurred in any direction, amendment, supplement,
waiver or consent, Securities owned by the Company or Affiliates of the Company
shall be disregarded, except that, for the purposes of determining whether the
Trustee shall be protected in relying on any such direction, amendment,
supplement, waiver or consent, only Securities that the Trustee knows are so
owned shall be disregarded.
SECTION 2.10. Temporary Securities.
Until definitive Securities are ready for delivery, the
Company may prepare and the Trustee shall authenticate temporary Securities.
Temporary Securities shall be substantially in the form of definitive Securities
but may have variations that the Company reasonably and in good faith considers
appropriate for temporary Securities. Without unreasonable delay, the Company
shall prepare and the Trustee shall authenticate definitive Securities in
exchange for temporary Securities. Until so exchanged, the temporary Securities
shall in all respects be entitled to the same benefits under this Indenture as
permanent Securities authenticated and delivered hereunder.
SECTION 2.11. Cancellation.
The Company at any time may deliver Securities to the Trustee
for cancellation. The Registrar and the Paying Agent shall forward to the
Trustee any Securities surrendered to them for transfer, exchange or payment.
The Trustee, or at the direction of the Trustee, the Registrar or the Paying
Agent (other than the Company or an Affiliate of the Company), and no one else,
shall cancel and, at the written direction of the Company, shall dispose of all
Securities surrendered for transfer, exchange, payment or cancellation. Subject
to Section 2.7, the Company may not issue new Securities to replace Securities
that have been paid or delivered to the Trustee for cancellation. No Securities
shall be authenticated in lieu of or in exchange for any Securities canceled as
provided in this Section 2.11, except as expressly permitted in the form of
Securities and as permitted by this Indenture.
SECTION 2.12. Defaulted Interest.
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 Record Date for such interest.
Any interest on any Security which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date plus, to the
extent lawful, any interest payable on the defaulted interest (herein called
"Defaulted Interest") shall forthwith cease to be payable to the registered
holder on the relevant Record Date, 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 cash equal to the aggregate amount proposed to be paid in
respect of such Defaulted Interest or shall make arrangements satisfactory to
the Trustee for such deposit prior to the date of the proposed payment, such
cash when deposited to be held in trust for the benefit of the persons entitled
to such Defaulted Interest as provided in this clause (1). 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
mailed as aforesaid, such Defaulted Interest shall be paid to the persons in
whose names the Securities (or their respective predecessor Securities) are
registered 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 shall be deemed
practicable by the Trustee in its sole discretion.
Subject to the foregoing provisions of this Section, each Security delivered
under this Indenture upon 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,
which were carried by such other Security.
SECTION 2.13. Registration, Registration of Transfer and
Exchange.
The Company shall cause the Trustee to keep, so long as it is
the Security Registrar, at the Corporate Trust Office of the Trustee, or such
other office as the Trustee may designate, a register (the register maintained
in such office or in any other office or agency designated pursuant to Section
4.2 being herein sometimes referred to as the "Security Register") in which,
subject to such reasonable regulations as the Security Registrar may prescribe,
the Company shall provide for the registration of Securities and of transfers of
Securities. The Trustee shall initially be the "Security Registrar" for the
purpose of registering Securities and transfers of Securities as herein
provided. The Company may change the Security Registrar or appoint one or more
co-Security Registrars without notice.
Upon surrender for registration of transfer of any Security at
the office or agency of the Company designated pursuant to Section 4.2, 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
the same series of any authorized denomination or denominations, of a like
aggregate principal amount.
Furthermore, any Holder of the Global Security shall, by
acceptance of such Global Security, agree that transfers of beneficial interests
in such Global Security may be effected only through a book-entry system
maintained by the Holder of such Global Security (or its agent), and that
ownership of a beneficial interest in a Security shall be required to be
reflected in a book entry.
At the option of the Holder, Securities may be exchanged for
other Securities of any authorized denomination or denominations, of a like
aggregate principal amount, upon surrender of the Securities to be exchanged at
such office or agency. Whenever any Securities are so surrendered for exchange,
the Company shall execute, and the Trustee shall authenticate and deliver,
Securities of the same series which the Holder making the exchange is entitled
to receive; provided that no exchange of Series A Securities for Series B
Securities shall occur until an Exchange Offer Registration Statement shall have
been declared effective by the Commission and that the Series A Securities
exchanged for the Series B Securities shall be canceled.
All Securities issued upon any registration of transfer or
exchange of Securities shall be the valid obligations of the Company, evidencing
the same Indebtedness, and 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, repurchase or redemption, 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 a Holder for any
registration of transfer, exchange or redemption of Securities, except for any
tax or other governmental charge that may be imposed in connection therewith,
other than all exchanges pursuant to Section 2.1, 2.2, 2.7, 2.10, 2.13, 3.7,
4.14, 9.5 or 11.1 not involving any transfer.
The Company shall not be required (a) to issue, register the
transfer of or exchange any Security during a period beginning at the opening of
business 15 days before the mailing of a notice of redemption of the Securities
selected for redemption under Section 3.3 and ending at the close of business on
the day of such mailing or (b) to register the transfer of or exchange any
Security so selected for redemption in whole or in part, except the unredeemed
portion of Securities being redeemed in part.
Every Security shall be subject to the restrictions on
transfer provided in the legend required to be set forth on the face of each
Security as indicated on the form of Security attached hereto as Exhibit A, and
the restrictions set forth in this Section 2.13, and the Holder of each
Security, by such Holder's acceptance thereof (or interest therein), agrees to
be bound by such restrictions on transfer.
Except as provided in the preceding paragraph, any Security
authenticated and delivered upon registration of transfer of, or in exchange
for, or in lieu of, any Global Security, whether pursuant to this Section 2.13,
Section 2.7, 2.10, 3.7 or 9.5 or otherwise, shall also be a Global Security and
bear the legend indicated on the form of Security attached hereto as Exhibit A.
SECTION 2.14. Book Entry Provisions for Global Securities.
(a) Each Global Security initially shall (i) be registered in
the name of the Depositary for such Global Security or the nominee of such
Depositary, (ii) be deposited with, or on behalf of, the Depositary or with the
Trustee as custodian for such Depositary and (iii) bear legends indicated on the
form of Security attached hereto as Exhibit A.
Members of, or participants in, the Depositary ("Agent
Members") shall have no rights under this Indenture with respect to any Global
Security held on their behalf by the Depositary, or the Trustee as its
custodian, or under such Global Security, and the Depositary may be treated by
the Company, the Trustee and any agent of the Company or the Trustee as the
absolute owner of such Global Security for all purposes whatsoever.
Notwithstanding the foregoing, nothing herein shall prevent the Company, the
Trustee or any agent of the Company or the Trustee from giving effect to any
written certification, proxy or other authorization furnished by the Depositary
or shall impair, as between the Depositary and its Agent Members, the operation
of customary practices governing the exercise of the rights of a holder of any
Security.
(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,
and in either case the Company fails to appoint a successor Depositary, (ii) the
Company, at its option, 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 (iii) 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 such Global Security.
(c) If any Global Security is to be exchanged for other
Securities or canceled 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 Two. If any Global Security is to be
exchanged for other Securities or canceled 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 Two or (ii) the principal
amount thereof shall be reduced or increased by an amount equal to the portion
thereof to be so exchanged or canceled, or equal to the principal amount of such
other Security to be so exchanged for a beneficial interest therein, as the case
may be, by means of an appropriate adjustment made on the records of the
Trustee, as 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 this
Section 2.14(c) and as otherwise provided in this Article Two, 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 Two 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 Two 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 2.15. Special Transfer and Exchange Provisions.
(a) Certain Transfers and Exchanges. Transfers and exchanges
of Securities and beneficial interests in a Global Security of the kinds
specified in this Section 2.15 shall be made only in accordance with this
Section 2.15.
(i) Rule 144A Global Security to Regulation S Global Security.
If the owner of a beneficial interest in the Rule 144A Global Security wishes at
any time to transfer such interest to a Person who wishes to acquire the same in
the form of a beneficial interest in the Regulation S Global Security, such
transfer may be effected only in accordance with the provisions of this
paragraph and paragraph (iv) below and subject to the Applicable Procedures.
Upon receipt by the Trustee, as Security Registrar, of (a) an order given by the
Depositary or its authorized representative directing that a beneficial interest
in the Regulation S Global Security in a specified principal amount be credited
to a specified Agent Member's account and that a beneficial interest in the Rule
144A Global Security in an equal principal amount be debited from another
specified Agent Member's account and (b) a Regulation S Certificate in the form
of Exhibit B hereto, satisfactory to the Trustee and duly executed by the owner
of such beneficial interest in the Rule 144A Global Security or his attorney
duly authorized in writing, then the Trustee, as Security Registrar but subject
to paragraph (iv) below, shall reduce the principal amount of the Rule 144A
Global Security and increase the principal amount of the Regulation S Global
Security by such specified principal amount as provided in Section 2.14(c).
(ii) Regulation S Global Security to Rule 144A Global
Security. If the owner of a beneficial interest in the Regulation S Global
Security wishes at any time to transfer such interest to a Person who wishes to
acquire the same in the form of a beneficial interest in the Rule 144A Global
Security, such transfer may be effected only in accordance with this paragraph
(ii) and subject to the Applicable Procedures. Upon receipt by the Trustee, as
Security Registrar, of (a) an order given by the Depositary or its authorized
representative directing that a beneficial interest in the Rule 144A Global
Security in a specified principal amount be credited to a specified Agent
Member's account and that a beneficial interest in the Regulation S Global
Security in an equal principal amount be debited from another specified Agent
Member's account and (b) if such transfer is to occur during the Restricted
Period, a Restricted Securities Certificate in the form of Exhibit C hereto,
satisfactory to the Trustee and duly executed by the owner of such beneficial
interest in the Regulation S Global Security or his attorney duly authorized in
writing, then the Trustee, as Security Registrar, shall reduce the principal
amount of the Regulation S Global Security and increase the principal amount of
the Rule 144A Global Security by such specified principal amount as provided in
Section 2.14(c).
(iii) Exchanges between Global Security and Non-Global
Security. A beneficial interest in a Global Security may be exchanged for a
Security that is not a Global Security as provided in Section 2.15(b); provided
that, if such interest is a beneficial interest in the Rule 144A Global
Security, or if such interest is a beneficial interest in the Regulation S
Global Security and such exchange is to occur during the Restricted Period, then
such interest shall bear the Private Placement Legend (subject in each case to
Section 2.15(b).
(iv) Regulation S Global Security to be Held Through Euroclear
or Cedel during Restricted Period. The Company shall use its best efforts to
cause the Depositary to ensure that, until the expiration of the Restricted
Period, beneficial interests in the Regulation S Global Security may be held
only in or through accounts maintained at the Depositary by Euroclear or Cedel
(or by Agent Members acting for the account thereof), and no person shall be
entitled to effect any transfer or exchange that would result in any such
interest being held otherwise than in or through such an account; provided that
this paragraph (iv) shall not prohibit any transfer or exchange of such an
interest in accordance with paragraph (ii) above.
(a) Private Placement Legends. Rule 144A Securities and their
Successor Securities and Regulation S Securities and their Successor Securities
shall bear a Private Placement Legend, subject to the following:
(i) subject to the following clauses of this Section
2.15(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 Private
Placement Legend borne by such Global Security while represented thereby;
(ii) subject to the following clauses of this Section
2.15(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 Private Placement Legend borne by such
other Security;
(iii) 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,
shall not bear a Private Placement Legend;
(iv) at any time after the Securities may be freely
transferred without registration under the Securities Act or without being
subject to transfer restrictions pursuant to the Securities Act, a new Security
which does not bear a Private Placement 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 the Trustee has received an Unrestricted Securities
Certificate substantially in the form of Exhibit D hereto, satisfactory to the
Trustee and duly executed by the Holder of such legended Security or his
attorney duly authorized in writing, and after such date and receipt of such
certificate, the Trustee shall authenticate and deliver such a new Security in
exchange for or in lieu of such other Security as provided in this Article II;
(v) a new Security which does not bear a Private
Placement 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 II; and
(vi) notwithstanding the foregoing provisions of this
Section 2.15(b), a Successor Security of a Security that does not bear a
particular form of Private Placement 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 Private Placement Legend in exchange for such Successor
Security as provided in this Article II.
By its acceptance of any Security bearing the Private
Placement Legend, each Holder of such a Security acknowledges the restrictions
on transfer of such Security set forth in this Indenture and in the Private
Placement Legend and agrees that it will transfer such Security only as provided
in this Indenture.
The Security Registrar shall retain copies of all letters,
notices and other written communications received pursuant to Section 2.14 or
this Section 2.15. The Company shall have the right to inspect and make copies
of all such letters, notices or other written communications at any reasonable
time upon the giving of reasonable written notice to the Security Registrar.
In the event that Regulation S is amended during the term of
this Indenture to alter the applicable holding period, all reference in this
Indenture to a holding period for Non-U.S. Persons will be deemed to include
such amendment.
SECTION 2.16. CUSIP Numbers.
Neither the Company nor the Trustee shall have any
responsibility for any defect in the CUSIP number that appears on any Security,
check, advice of payment or redemption notice, and any such document may contain
a statement to the effect that CUSIP numbers have been assigned by an
independent service for convenience of reference and that neither the Company
nor the Trustee shall be liable for any inaccuracy in such numbers.
ARTICLE III.
REDEMPTION
SECTION 3.1. Rights of Redemption.
(a) In addition to the provisions of Sections 4.14 and 11.1
hereof, the Securities are subject to redemption at any time on or after May 15,
2003, at the option of the Company, in whole or in part, subject to the
conditions, and at the Redemption Prices, specified in the form of Security
attached hereto as Exhibit A, together with accrued and unpaid interest, if any,
to the Redemption Date (subject to the rights of holders of record on relevant
record dates to receive interest due on an interest payment date).
(b) In addition, at any time prior to May 15, 2001, the
Company, at its option, may use the net cash proceeds of one or more Public
Equity Offerings or Strategic Equity Offerings in a single transaction or a
series of related transactions to redeem up to an aggregate of 35% of the
aggregate principal amount of Securities originally issued under this Indenture
at a redemption price equal to 110.5% of the aggregate principal amount thereof,
plus accrued and unpaid interest thereon, if any, to the redemption date;
provided that at least 65% of the initial aggregate principal amount of
Securities remains outstanding immediately after the occurrence of such
redemption. In order to effect the foregoing redemption, the Company must mail a
notice of redemption no later than 30 days after the closing of the related
Public Equity Offering or Strategic Equity Offering and must consummate such
redemption within 60 days of the closing of the Public Equity Offering or
Strategic Equity Offering.
SECTION 3.2. Notices to Trustee.
If the Company elects to redeem Securities pursuant to
Paragraph 5 of the Securities, or is required to redeem Securities pursuant to
Section 3.8 of this Indenture or Paragraph 13 of the Securities, it shall notify
the Trustee in writing of the Redemption Date and the principal amount of
Securities to be redeemed and whether it wants the Trustee to give notice of
redemption to the Holders.
If the Company elects to reduce the principal amount of
Securities to be redeemed pursuant to Paragraph 5 of the Securities by crediting
against any such redemption Securities it has not previously delivered to the
Trustee for cancellation, it shall so notify the Trustee of the amount of the
reduction and deliver such Securities with such notice, provided that no Initial
Securities received by the Company in exchange for Exchange Securities may be
made the basis for such credit.
The Company shall give each notice to the Trustee provided for
in this Section 3.2 at least 45 days before the Redemption Date (unless a
shorter notice shall be satisfactory to the Trustee). Any such notice may be
canceled at any time prior to notice of such redemption being mailed to any
Holder and shall thereby be void and of no effect.
SECTION 3.3. Selection of Securities to Be Redeemed.
If less than all of the Securities are to be redeemed pursuant
to Paragraph 5 thereof, and in the case of a redemption pursuant to Section 3.8
of this Indenture or Paragraph 13 of the Securities, the Trustee shall select
the Securities or portions thereof for redemption on a pro rata basis, by lot or
in such other manner as the Trustee shall determine to be fair and appropriate
and in such manner as complies with any applicable Depositary, legal and stock
exchange requirements. The Trustee shall make the selection from the Securities
outstanding and not previously called for redemption and shall promptly notify
the Company in writing of the Securities selected for redemption and, in the
case of any Security selected for partial redemption, the principal amount
thereof to be redeemed. Securities in denominations of $1,000 may be redeemed
only in whole. The Trustee may select for redemption portions (equal to $1,000
or any integral multiple thereof) of the principal of Securities that have
denominations larger than $1,000. Provisions of this Indenture that apply to
Securities called for redemption also apply to portions of Securities called for
redemption.
SECTION 3.4. Notice of Redemption.
At least 30 days but not more than 60 days before a Redemption
Date (other than in connection with a Special Mandatory Redemption, which
requires at least seven days notice), the Company shall mail a notice of
redemption by first-class mail, postage prepaid, to the Trustee and each Holder
whose Securities are to be redeemed to such Holder's last address as then shown
upon the books of the Registrar. At the Company's request, the Trustee shall
give the notice of redemption in the Company's name and at the Company's
expense. Each notice for redemption shall identify the Securities to be redeemed
and shall state:
(1) the Redemption Date;
(2) the Redemption Price, including the amount of accrued and
unpaid interest, if any, to be paid upon such redemption;
(3) the name, address and telephone number of the Paying
Agent;
(4) that Securities called for redemption must be surrendered
to the Paying Agent at the address specified in such notice to collect the
Redemption Price;
(5) that, unless (a) the Company defaults in its obligation to
deposit cash with the Paying Agent in accordance with Section 3.6 hereof or (b)
such redemption payment is prohibited pursuant to this Indenture, interest on
Securities (or portion thereof) called for redemption ceases to accrue on and
after the Redemption Date and the only remaining right of the Holders of such
Securities is to receive payment of the Redemption Price, including any accrued
and unpaid interest to the Redemption Date, upon surrender to the Paying Agent
of the Securities called for redemption and to be redeemed;
(6) if any Security is being redeemed in part, the portion of
the principal amount, equal to $1,000 or any integral multiple thereof, of such
Security to be redeemed and that, after the Redemption Date, and upon surrender
of such Security, a new Security or Securities in aggregate principal amount
equal to the unredeemed portion thereof will be issued;
(7) if less than all the Securities are to be redeemed, the
identification of the particular Securities (or portion thereof) to be redeemed,
as well as the aggregate principal amount of such Securities to be redeemed and
the aggregate principal amount of Securities to be outstanding after such
partial redemption;
(8) the CUSIP number of the Securities to be redeemed; and
(9) that the notice is being sent pursuant to this Section 3.4
and pursuant to the optional redemption provisions of Paragraph 5 of the
Securities or pursuant to the mandatory redemption provisions of Section 3.8 of
this Indenture and Paragraph 13 of the Securities.
SECTION 3.5. Effect of Notice of Redemption.
Once notice of redemption is mailed in accordance with Section
3.4, Securities called for redemption become due and payable on the Redemption
Date and at the Redemption Price, including any accrued and unpaid interest to
the Redemption Date. Upon surrender to the Trustee or Paying Agent, such
Securities called for redemption shall be paid at the Redemption Price,
including interest, if any, accrued and unpaid to the Redemption Date; provided
that if the Redemption Date is after a regular Record Date and on or prior to
the Interest Payment Date, the accrued interest shall be payable to the Holder
of the redeemed Securities registered on the relevant Record Date; and provided,
further, that if a Redemption Date is a Legal Holiday, payment shall be made on
the next succeeding Business Day and no interest shall accrue for the period
from such Redemption Date to such succeeding Business Day.
SECTION 3.6. Deposit of Redemption Price.
On or prior to the Redemption Date, the Company shall deposit
with the Paying Agent (other than the Company or an Affiliate of the Company)
cash sufficient to pay the Redemption Price of, including any accrued and unpaid
interest on, all Securities to be redeemed on such Redemption Date (other than
Securities or portions thereof called for redemption on that date that have been
delivered by the Company to the Trustee for cancellation). The Paying Agent
shall promptly return to the Company any cash so deposited which is not required
for that purpose.
If the Company complies with the preceding paragraph and the
other provisions of this Article III and payment of the Securities called for
redemption is not prohibited under this Indenture, interest on the Securities to
be redeemed will cease to accrue on the applicable Redemption Date, whether or
not such Securities are presented for payment. Notwithstanding anything herein
to the contrary, if any Security surrendered for redemption in the manner
provided in the Securities shall not be so paid upon surrender for redemption
because of the failure of the Company to comply with the preceding paragraph,
interest shall continue to accrue and be paid from the Redemption Date until
such payment is made on the unpaid principal, and, to the extent lawful, on any
interest not paid on such unpaid principal, in each case at the rate and in the
manner provided in Section 4.1 hereof and the Securities.
SECTION 3.7. Securities Redeemed in Part.
Upon surrender of a Security that is to be redeemed in part,
the Company shall execute and the Trustee shall authenticate and deliver to the
Holder, without service charge to the Holder, a new Security or Securities equal
in principal amount to the unredeemed portion of the Security surrendered.
SECTION 3.8. Special Mandatory Redemption.
(a) In addition to any payments required by Section 11.1
hereof, if consummation of the Merger has not occurred on or prior to the
earlier to occur of (i) termination of the Merger Agreement or (ii) 150 days
after the Issue Date if the Escrow Funds have not been released by that time
(provided that the 150-day period may be extended at the option of the Company
up to an additional 120 days if (A) the Company shall have deposited an
additional amount (to be reasonably determined by the Initial Purchasers on the
same basis as the determination of the Additional Escrow Amount) in the Escrow
and Pledge Account for the benefit of the holders of the Securities, (B) the
basis under which the Merger Agreement is not satisfied on such 150th day
relates to pending Federal Communications Commission or other governmental or
regulatory approvals, (C) the lenders under the Credit Facility shall, in their
discretion, have extended their commitment to lend no earlier than the date to
which such escrow has been extended, (D) the Company shall have issued a press
release in a reasonably commercial manner and notified the Trustee with respect
to such extension of the escrow period and (E) the Company shall have provided
the Trustee with an Officers' Certificate as to satisfaction of the above
conditions) the Company shall redeem all of the outstanding Securities upon at
least seven (7) days' prior written notice to the Holders with the Escrow Funds
delivered to the Paying Agent pursuant to the terms of the Pledge and Escrow
Agreement, at a redemption price equal to the Special Redemption Price, plus
accrued and unpaid interest, if any, to the date of redemption (the "Special
Mandatory Redemption").
(b) Once a date for any such redemption has been publicly
announced, it shall not be changed. The Trustee shall promptly notify the
Holders of the date fixed for any redemption pursuant to this Section 3.8.
(c) "Special Redemption Price" means, with respect to any
Securities as of any date of redemption with respect thereto, an amount equal to
101% of the principal amount thereof.
(d) Other than as specifically provided in this Section 3.8,
any redemption pursuant to this Section 3.8 shall be made pursuant to the
provisions of Section 3.1 through 3.7 hereof.
ARTICLE IV.
COVENANTS
SECTION 4.1. Payment of Securities.
The Company shall pay the principal of and interest on the
Securities on the dates and in the manner provided in the Securities. An
installment of principal of or interest on the Securities shall be considered
paid by the Company on the date it is due if the Trustee or Paying Agent (other
than the Company or an Affiliate of the Company) holds for the benefit of the
Holders, on or before 10:00 a.m. New York City time on that date, cash deposited
and designated for and sufficient to pay the installment. The Company shall pay
interest on overdue principal and on overdue installments of interest at the
rate specified in the Securities compounded semi-annually, to the extent lawful.
SECTION 4.2. Maintenance of Office or Agency.
The Company shall maintain in the Borough of Manhattan, The
City of New York, 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 shall
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 address of the Trustee set forth in Section 13.2.
The Company may also from time to time designate one or more other offices or
agencies where the Securities may be presented or surrendered for any or all
such purposes and may from time to time rescind such designations; provided,
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, The City of New York, for such purposes. The Company shall give
prompt written notice to the Trustee of any such designation or rescission and
of any change in the location of any such other office or agency. The Company
hereby initially designates the Corporate Trust Office of the Trustee at 55
Water Street, Room 234, North Building, New York, New York 10041 as such office.
SECTION 4.3. Limitation on Restricted Payments.
The Company will not, and will not permit any of its
Restricted Subsidiaries to, directly or indirectly, make any Restricted Payment,
if, immediately prior or after giving effect thereto (a) a Default or an Event
of Default would exist, (b) the Company would not be permitted to incur at least
$1.00 of additional Indebtedness pursuant to the Annualized Operating Cash Flow
Ratio provision set forth in the second paragraph of Section 4.11, or (c) the
aggregate amount of all Restricted Payments made by the Company and its
Restricted Subsidiaries, including such proposed Restricted Payment (if not made
in cash, then the fair market value of any property used therefor) from and
after the Issue Date and on or prior to the date of such Restricted Payment,
shall exceed the sum of (i) the amount determined by subtracting (x) 2.0 times
the aggregate Consolidated Interest Expense of the Company for the period (taken
as one accounting period) from the Issue Date to the last day of the last full
fiscal quarter prior to the date of the proposed Restricted Payment (the
"Computation Period") from (y) Operating Cash Flow of the Company for the
Computation Period, plus (ii) the aggregate Net Proceeds received by the Company
from the sale (other than to a Subsidiary of the Company) of its Qualified
Capital Stock after the Issue Date and on or prior to the date of such
Restricted Payment (other than any such Net Proceeds received by the Company in
connection with the financing of the Merger) plus (iii) to the extent not
otherwise included in clauses (i) or (ii), above, an amount equal to the net
reduction in Investments in Unrestricted Subsidiaries resulting from payments of
dividends, repayment of loans or advances, or other transfers of assets, in each
case to the Company or any Wholly Owned Restricted Subsidiary of the Company
from Unrestricted Subsidiaries, or from redesignations of Unrestricted
Subsidiaries as Restricted Subsidiaries (valued in each case as provided in the
definition of "Investments"), not to exceed, in the case of any Unrestricted
Subsidiary, the amount of Investments previously made by the Company and any
Restricted Subsidiary in such Unrestricted Subsidiary.
Notwithstanding the foregoing, the provisions set forth in
clause (b) or (c) of the immediately preceding paragraph will not prohibit (and
the provision set forth in clause (a) of the immediately preceding paragraph
will not prohibit the payment described in clause (ii)) (i) the use of an
aggregate of $2.5 million to be used for Restricted Payments not otherwise
permitted by this Section 4.3 (provided that only $1.0 million of such amount
may be used for Restricted Payments prior to one year after the Issue Date and
such $1.0 million amount prior to one year after the Issue Date may not be used
to make (a) dividends or other distributions on shares of Capital Stock of the
Company or any of its Subsidiaries or (b) pay management or other similar fees
to equity investors (or their Affiliates) in the Company), (ii) the payment of
any dividend within 60 days after the date of its declaration if such dividend
could have been made on the date of its declaration in compliance with the
foregoing provisions and (iii) the redemption, defeasance, repurchase or other
acquisition or retirement of any Indebtedness or Capital Stock of the Company or
its Restricted Subsidiaries either in exchange for or out of the Net Proceeds of
the substantially concurrent sale (other than to a Subsidiary of the Company) of
Qualified Capital Stock (in the case of any redemption, defeasance, repurchase
or other acquisition or retirement of any Junior Indebtedness or Capital Stock
of the Company or its Restricted Subsidiaries) or Junior Indebtedness (in the
case of any redemption, defeasance, repurchase or other acquisition or
retirement of any Indebtedness of the Company or its Restricted Subsidiaries) of
the Company, (iv) the payment of management or other similar fees to equity
investors (or their Affiliates) in the Company in an amount not to exceed $1.0
million in the aggregate in any fiscal year, (v) the purchase, redemption or
other acquisition or retirement for value of Capital Stock of the Company from
employees, former employees, directors, former directors, consultants and former
consultants of the Company or any of its Subsidiaries pursuant to the terms of
the agreements pursuant to which such Capital Stock was acquired in an amount
not to exceed $2.5 million in the aggregate in any calendar year, (vi)
repurchases of Capital Stock of the Company deemed to occur upon exercise of
stock options if such Capital Stock represents a portion of the exercise price
of such options and (vii) acquisitions or repurchases or other payments in
respect of PriCellular Class A Shares, PriCellular Class B Shares, PriCellular
Series A Preferred Stock or the Convertible Notes, in each case of PriCellular
or options or warrants to purchase any of the foregoing pursuant to the Merger
Agreement.
In determining the aggregate amount expended for Restricted
Payments in accordance with clause (c) of the first paragraph of this Section
4.3, 100% of the amounts expended under clauses (i) through (v) of the
immediately preceding paragraph shall be deducted.
SECTION 4.4. Corporate Existence.
Subject to Article V, the Company shall do or cause to be done
all things necessary to preserve and keep in full force and effect its corporate
existence and the corporate or other existence of each of its Restricted
Subsidiaries in accordance with the respective organizational documents of each
of them and the rights (charter and statutory) and corporate franchises of the
Company and each of the Company's Restricted Subsidiaries; provided, however,
that the Company shall not be required to preserve, with respect to itself, any
right or franchise, and with respect to any Restricted Subsidiaries of the
Company, any such existence, right or franchise, if (a) the Board of Directors
of the Company shall determine that the preservation thereof is no longer
desirable in the conduct of the business of such entity and (b) the loss thereof
is not disadvantageous in any material respect to the Holders.
SECTION 4.5. Payment Of Taxes And Other Claims.
Except with respect to immaterial items, the Company shall,
and shall cause each of its Restricted Subsidiaries to, pay or discharge or
cause to be paid or discharged, before the same shall become delinquent, (i) all
taxes, assessments and governmental charges (including withholding taxes and any
penalties, interest and additions to taxes) levied or imposed upon the Company
or any of its Restricted Subsidiaries or any of their respective properties and
assets and (ii) all lawful claims, whether for labor, materials, supplies,
services or anything else, which have become due and payable and which by law
have or may become a Lien upon the property and assets 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 and for which disputed
amounts adequate reserves have been established in accordance with GAAP.
SECTION 4.6. Maintenance of Properties and Insurance.
The Company shall cause all material properties used or useful
to the conduct of its business and the business of each of its Restricted
Subsidiaries to be maintained and kept in good condition, repair and working
order (reasonable wear and tear excepted) and shall cause to be made all
necessary repairs, renewals, replacements, betterments and improvements thereof,
all as in its reasonable judgment may be necessary, so that the business carried
on in connection therewith may be properly conducted at all times; provided,
however, that nothing in this Section 4.6 shall prevent the Company from
discontinuing any operation or maintenance of any of such properties, or
disposing of any of them, if such discontinuance or disposal is (a), in the
judgment of the Board of Directors of the Company, desirable in the conduct of
the business of such entity and (b) not disadvantageous in any material respect
to the Holders.
The Company shall provide, or cause to be provided, for itself
and each of its Restricted Subsidiaries, insurance (including appropriate
self-insurance) against loss or damage of the kinds that, in the reasonable,
good faith opinion of the Company is adequate and appropriate for the conduct of
the business of the Company and such Restricted Subsidiaries in a prudent
manner, with (except for self-insurance) reputable insurers or with the
government of the United States of America or an agency or instrumentality
thereof, in such amounts, with such deductibles, and by such methods as shall be
customary, in the reasonable, good faith opinion of the Company and adequate and
appropriate for the conduct of the business of the Company and such Restricted
Subsidiaries in a prudent manner for entities similarly situated in the
industry, unless failure to provide such insurance (together with all other such
failures) would not have a material adverse effect on the financial condition or
results of operations of the Company or such Restricted Subsidiaries.
SECTION 4.7. Compliance Certificate; Notice of Default.
(a) The Company shall deliver to the Trustee within 120 days
after the end of its fiscal year an Officers' Certificate complying with Section
314(a)(4) of the TIA and stating that a review of its activities and the
activities of its Subsidiaries during the preceding fiscal year has been made
under the supervision of the signing Officers with a view to determining whether
the Company has kept, observed, performed and fulfilled their obligations under
this Indenture and further stating, as to each such Officer signing such
certificate, whether or not the signer knows of any failure by the Company or
any Subsidiary of the Company to comply with any conditions or covenants in this
Indenture and, if such signer does know of such a failure to comply, the
certificate shall describe such failure with particularity. The Officers'
Certificate shall also notify the Trustee should the relevant fiscal year end on
any date other than the current fiscal year end date.
(b) The Company shall, so long as any of the Securities are
outstanding, deliver to the Trustee, promptly upon becoming aware of any
Default, Event of Default or fact which would prohibit the making of any payment
to or by the Trustee in respect of the Securities, an Officers' Certificate
specifying such Default, Event of Default or fact and what action the Company is
taking or proposes to take with respect thereto. The Trustee shall not be deemed
to have knowledge of any Default, any Event of Default or any such fact unless
one of its Trust Officers receives notice thereof from the Company or any of the
Holders.
SECTION 4.8. Provision of Financial Statements.
After the earlier to occur of the consummation of the Exchange
Offer and the 120th calendar day following the Merger Date, whether or not the
Company is subject to Section 13(a) or 15(d) of the Exchange Act, the Company
will, to the extent permitted under the Exchange Act, file with the Commission
the annual reports, quarterly reports and other documents which the Company
would have been required to file with the Commission pursuant to Section 13(a)
or 15(d) if the Company were so subject, such documents to be filed with the
Commission on or prior to the date (the "Required Filing Date") by which the
Company would have been required so to file such documents if the Company were
so subject. The Company will also in any event (x) within 15 days of each
Required Filing Date (i) transmit by mail to all holders, as their names and
addresses appear in the security register, without cost to such holders and (ii)
file with the Trustee copies of the annual reports, quarterly reports and other
documents which the Company would have been required to file with the Commission
pursuant to Section 13(a) or 15(d) of the Exchange Act if the Company were
subject to either of such Sections and (y) if filing such documents by the
Company with the Commission is not permitted under the Exchange Act, promptly
upon written request and payment of the reasonable cost of duplication and
delivery, supply copies of such documents to any prospective holder at the
Company's cost. So long as any of the Initial Securities remain outstanding, the
Company will make available to any prospective purchaser of Initial Securities
or beneficial owner of Securities in connection with any sale thereof the
information required by Rule 144(d)(4) under the Securities Act, until such time
as the Company has either exchanged the Initial Securities for Exchange
Securities or until such time as the holders thereof have disposed of such
Initial Securities pursuant to an effective registration statement under the
Securities Act.
SECTION 4.9. [INTENTIONALLY OMITTED].
SECTION 4.10. Limitation on Transactions with Related Persons.
The Company will not, and will not permit any of its
Restricted Subsidiaries or Unrestricted Subsidiaries to, enter into any
contract, agreement, arrangement or transaction with any Related Person (each a
"Related Person Transaction"), or any series of Related Person Transactions,
except for transactions (a) entered into pursuant to clause (iv) of Section 4.3
and (b) made in good faith, the terms of which are (i) fair and reasonable to
the Company or such Subsidiary, as the case may be, and (ii) are at least as
favorable as the terms which could be obtained by the Company or such
Subsidiary, as the case may be, in a comparable transaction made on an arm's
length basis with Persons who are not Related Persons.
Without limiting the foregoing, (a) with respect to any
Related Person Transaction or series of Related Person Transactions with an
aggregate value in excess of $1,000,000, the Company delivers an officers'
certificate to the Trustee certifying that such Related Person Transaction or
series of Related Person Transactions satisfies clauses (i) and (ii) in the
preceding paragraph, and (b) any Related Person Transaction or series of Related
Person Transactions with an aggregate value in excess of $5,000,000 must either
first be approved by a majority of the Board of Directors of the Company who are
disinterested in the subject matter of the transaction pursuant to a Board
Resolution or the Company must first obtain a favorable written opinion from an
independent financial advisor of national reputation as to the fairness from a
financial point of view of such transaction to the Company or such Subsidiary,
as the case may be.
Notwithstanding the foregoing, the following shall not
constitute Related Person Transactions: (i) reasonable and customary payments on
behalf of directors, officers or employees of the Company or any of its
Restricted Subsidiaries, or in reimbursement of reasonable and customary
payments or reasonable and customary expenditures made or incurred by such
Persons as directors, officers or employees, (ii) any contract, agreement,
arrangement, or transaction solely between or among the Company and any of its
Wholly Owned Restricted Subsidiaries or between or among Wholly Owned Restricted
Subsidiaries of the Company, (iii) any Restricted Payment of the type described
by clauses (i) and (ii) of the definition thereof made to all stockholders on a
pro rata basis and not prohibited by Section 4.3, (iv) any loan or advance by
the Company or a Restricted Subsidiary to employees of the Company or a
Restricted Subsidiary (i) prior to one year from the Issue Date, in an aggregate
amount at any one time outstanding not to exceed $2,000,000, and (ii) thereafter
in the ordinary course of business in an aggregate amount at any one time
outstanding not to exceed $300,000, (v) any payment pursuant to a tax-sharing
agreement between the Company and any other Person with which the Company is
required or permitted to file a consolidated tax return or with which the
Company is or could be part of a consolidated group for tax purposes, which
payments are not in excess of the tax liabilities attributable solely to the
Company and its Restricted Subsidiaries (as a consolidated group) and (vi) any
transaction pursuant to an agreement in existence on the date of the Indenture
or on the Merger Date or any amendment thereto (so long as any such amendment is
not disadvantageous to the Holders in any material respect).
SECTION 4.11. Limitation on Incurrence of Additional
Indebtedness.
The Company will not, and will not permit any of its
Restricted Subsidiaries to, directly or indirectly, issue, create, incur,
assume, guarantee or otherwise directly or indirectly become liable for
(including as a result of an acquisition), or otherwise become responsible for,
contingently or otherwise (individually or collectively, to "Incur" or, as
appropriate, an "Incurrence"), any Indebtedness. Neither the accrual of interest
(including the issuance of "pay in kind" securities or similar instruments in
respect of such accrued interest) pursuant to the terms of Indebtedness Incurred
in compliance with this covenant, nor the accretion of original issue discount,
nor the mere extension of the maturity of any Indebtedness shall be deemed to be
an Incurrence of Indebtedness.
Notwithstanding the foregoing, if there exists no Default or
Event of Default immediately prior and subsequent thereto, the Company may Incur
Indebtedness and any Restricted Subsidiary may Incur Acquired Indebtedness if
the Company's Annualized Operating Cash Flow Ratio, after giving effect to the
Incurrence of such Indebtedness, would have been less than 8.5 to 1.0 at any
time prior to December 31, 2000 and 8.0 to 1.0 thereafter, and the application
of the proceeds therefrom.
In addition, the foregoing limitations will not apply to the
Incurrence of the following; provided that, except in the case of clauses (i),
(vii), (viii) and (xi) below, there exists no Default or Event of Default
immediately prior and subsequent thereto:
(i) Indebtedness of the Company or any of its Restricted
Subsidiaries under a Credit Facility in an aggregate principal amount at any one
time outstanding not to exceed $1.0 billion, reduced by (a) permanent reductions
in commitments in satisfaction of the Net Cash Proceeds application requirement
set forth in Section 4.14, (b) permanent reductions in amounts outstanding
pursuant to scheduled amortizations and mandatory prepayments in accordance with
the terms thereof (to the extent actually made), (c) the principal amount of the
Old Notes that at the relevant date of determination is outstanding after
consummation of the Merger and the transactions consummated substantially
contemporaneously therewith (other than Old Notes which have been properly
defeased) and (d) any Indebtedness outstanding pursuant to clause (xiv);
(ii) Indebtedness of a Restricted Subsidiary under one or more
bank credit facilities provided such Indebtedness could be incurred by the
Issuer under the Annualized Operating Cash Flow Ratio provision set forth in the
second paragraph of this covenant;
(iii) Indebtedness of the Company evidenced by the Securities;
(iv) Indebtedness represented by the Old Notes or the
Convertible Notes that remain outstanding after consummation of the Merger and
the transactions consummated substantially contemporaneously therewith;
(v) Indebtedness between the Company and any Restricted
Subsidiary of the Company or between Restricted Subsidiaries of the Company,
provided that, in the case of Indebtedness of the Company, such obligations
shall be unsecured and subordinated in all respects to the Holders' rights
pursuant to the Securities and the Company's guarantee under the Credit
Facility;
(vi) Capitalized Lease Obligations and Purchase Money
Indebtedness in an aggregate amount or aggregate principal amount, as the case
may be, outstanding at any time not to exceed in the aggregate $20,000,000,
provided that in the case of Purchase Money Indebtedness, such Indebtedness
shall not constitute more than 100% of the cost (determined in accordance with
GAAP) to the Company or such Restricted Subsidiary of the property purchased or
leased with the proceeds thereof;
(vii) Indebtedness of the Company or any Restricted Subsidiary
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 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 to the extent none of the foregoing results in the obligation to
repay an obligation for money borrowed by any Person and are limited in
aggregate amount to no greater than 10% of the fair market value of such
business, assets or Restricted Subsidiary so disposed of;
(viii) any guarantee by any Restricted Subsidiary made in
accordance with the provisions of Section 4.20;
(ix) Indebtedness Incurred by the Company or any of its
Restricted Subsidiaries in connection with the acquisition of a new Restricted
Subsidiary, the majority of whose revenues for the most recent twelve months for
which audited or unaudited financial statements are available are from a Related
Business, or of property, business or assets which, or Capital Stock of a Person
all or substantially all of whose assets, are a type generally used in a Related
Business; provided that such Indebtedness was Incurred by the prior owner of
such Restricted Subsidiary, property, business, assets or Capital Stock prior to
such contemplation of, such acquisition by the Company or one of its Restricted
Subsidiaries and was not Incurred in connection with, or in contemplation of,
such acquisition by the Company or one of its Restricted Subsidiaries; and
provided, further, that the principal amount (or accreted value, as applicable)
of such Indebtedness, together with any other outstanding Indebtedness Incurred
pursuant to this clause (ix), does not exceed $25.0 million at any one time
outstanding;
(x) Indebtedness of the Company or any Restricted Subsidiary
under standby letters of credit or reimbursement obligations with respect
thereto issued in the ordinary course of business and consistent with industry
practices limited in aggregate amount to $5.0 million at any one time
outstanding;
(xi) Interest Rate Protection Obligations relating to (A)
Indebtedness of the Company or any Restricted Subsidiary (which Indebtedness is
otherwise permitted to be Incurred under this covenant) or (B) Indebtedness for
which a lender has provided a commitment in an amount reasonably anticipated to
be Incurred by the Company or any Restricted Subsidiary in the 12 months after
such Interest Rate Protection Obligations has been Incurred; provided, however,
that the notional principal amount of such Interest Rate Protection Obligation
does not exceed the principal amount of the Indebtedness (including Indebtedness
subject to commitments) to which such Interest Rate Protection Obligations
relate;
(xii) Indebtedness of the Company (other than Indebtedness
permitted by clauses (i) through (xi) or (xiv) hereof) not to exceed $75.0
million at any one time outstanding;
(xiii) Refinancing Indebtedness Incurred to extend, renew,
replace or refund Indebtedness permitted under clauses (iii) or (iv) of this
paragraph (plus any reasonably determined prepayment premium necessary to
accomplish such refinancing and such reasonable fees and expenses incurred in
connection therewith); and
(xiv) Refinancing Indebtedness Incurred by the Company to
extend, renew, replace or refund Indebtedness permitted under clause (i) of this
paragraph (plus any reasonably determined prepayment premium necessary to
accomplish such refinancing and such reasonable fees and expenses incurred in
connection therewith).
For purposes of clause (i)(c) above, the transactions
consummated substantially contemporaneously with the Merger may include, without
limitation, the repayment of Old Notes outstanding Merger Date within one
Business Day of the Merger Date if the Company, upon consummation of the Merger,
shall have, pursuant to such instruments acceptable to the agent lender under
the Credit Facility, (i) caused to be set aside sufficient funds borrowed by it
or a Restricted Subsidiary under the Credit Facility to make such repayment and
(ii) shall have given irrevocable instructions to the lender under such Credit
Facility, in a form acceptable to such agent lender, to direct borrowed funds to
the repayment of such Old Notes no later than the Business Day immediately
following the Merger Date.
SECTION 4.12. Limitations on Restricting Subsidiary Dividends.
The Company will not, and will not permit any of its
Restricted Subsidiaries to, directly or indirectly, create, assume or suffer to
exist any consensual encumbrance or restriction on the ability of any Restricted
Subsidiary of the Company to pay dividends or make other distributions on the
Capital Stock of any Restricted Subsidiary of the Company or pay or satisfy any
obligation to the Company or any of its Restricted Subsidiaries or otherwise
transfer assets or make or pay loans or advances to the Company or any of its
Restricted Subsidiaries, except encumbrances and restrictions existing under (i)
this Indenture and the Securities, (ii) the Credit Facility as in effect on the
Merger Date or thereafter (provided that any such encumbrance or restriction
does not restrict dividends by any Restricted Subsidiary to the Company or any
other Restricted Subsidiary in an amount equal to the interest payments on the
Securities then due, except if a payment default or any default under any
financial maintenance covenant under the Credit Facility shall have occurred and
be continuing or would arise therefrom; and provided, further, that any such
encumbrances or restrictions incurred under a Credit Facility after the Merger
Date shall not result in such encumbrances or restrictions being less favorable
in the aggregate in any material respect to the holders of the Securities than
the encumbrances or restrictions incurred under the Credit Facility on the
Merger Date, as determined in good faith by the Board of Directors of that
Company), (iii) any applicable law or any governmental or administrative
regulation or order, (iv) Refinancing Indebtedness permitted under this
Indenture, provided that the restrictions contained in the instruments governing
such Refinancing Indebtedness are no more restrictive in the aggregate than
those contained in the instruments governing the Indebtedness being refinanced
immediately prior to such refinancing, (v) restrictions with respect solely to a
Restricted Subsidiary of the Company imposed pursuant to a binding agreement
which has been entered into for the sale or disposition of all or substantially
all of the Capital Stock or assets of such Restricted Subsidiary, provided such
restrictions apply solely to the Capital Stock or assets being sold of such
Restricted Subsidiary, (vi) restrictions contained in any agreement relating to
a Person or real or tangible personal property acquired after the Issue Date
which are not applicable to any Person or property, other than the Person or
property so acquired and which were not put in place in connection with, or in
contemplation of, such acquisition, (vii) any agreement (other than those
referred to in clause (vi)) of a Person acquired by the Company or a Restricted
Subsidiary of the Company, which restrictions existed at the time of acquisition
or (viii) encumbrances or restrictions contained in the documentation governing
a Permitted Joint Venture permitted pursuant to clause (ix) of the definition of
"Permitted Investment." Notwithstanding the foregoing, neither (a) customary
provisions restricting subletting or assignment of any lease entered into the
ordinary course of business, consistent with past practices nor (b) Liens on
assets securing Senior Indebtedness, shall in and of themselves be considered a
restriction on the ability of the applicable Restricted Subsidiary to transfer
such agreement or assets, as the case may be.
SECTION 4.13. Limitations on Liens.
The Company will not and will not permit any Restricted
Subsidiary, directly or indirectly, to Incur or suffer to exist any Lien (other
than Permitted Liens) upon any of its property or assets, whether now owned or
hereafter acquired.
SECTION 4.14. Limitation on Asset Sales and Sales of
Subsidiary Stock.
The Company will not, and will not permit any of its
Restricted Subsidiaries to, in one or a series of related transactions, convey,
sell, transfer, assign or otherwise dispose of, directly or indirectly, any of
its property, businesses or assets, including by merger or consolidation, and
including any sale or other transfer or issuance of any Capital Stock of any
Restricted Subsidiary of the Company, whether by the Company or a Restricted
Subsidiary (an "Asset Sale"), unless (1)(a) within one year after the date of
such Asset Sale, an amount equal to the Net Cash Proceeds therefrom (the "Asset
Sale Amount") are applied (i) to the optional redemption of the Securities in
accordance with the terms of Article III of this Indenture and other
Indebtedness of the Company ranking on a parity with the Securities from time to
time outstanding with similar provisions requiring the Company to make an offer
to purchase or to redeem such Indebtedness with the proceeds from asset sales,
pro rata in proportion to the respective principal amounts (or accreted values
in the case of Indebtedness issued with an original issue discount) of the
Securities and such other Indebtedness then outstanding or (ii) to the
repurchase of the Securities and such other Indebtedness pursuant to an
irrevocable, unconditional offer (the "Asset Sale Offer") to repurchase such
Indebtedness at a purchase price (the "Asset Sale Offer Price") of 100% of the
principal amount thereof in the case of the Securities or 100% of the principal
amount (or accreted value in the case of Indebtedness issued with an original
issue discount) of such Indebtedness, plus, in each case, accrued interest to
the date of payment, made within one year of such Asset Sale or (b) within one
year of such Asset Sale, the Asset Sale Amount is (i) invested (or committed,
pursuant to a binding commitment subject only to reasonable, customary closing
conditions, to be invested, and in fact is so invested, within an additional 90
days) in tangible assets and property (other than notes, obligations or
securities), which in the good faith reasonable judgment of the Board of
Directors of the Company are of a type used in a Related Business, or Capital
Stock of a Person (which, if such Person becomes a Subsidiary of the Company by
virtue of such Asset Sale, shall initially be designated a Restricted
Subsidiary) all or substantially all of whose assets and property (in the good
faith reasonable judgment of the Board of Directors of the Company) are of a
type used in a Related Business (provided that, with respect to such Capital
Stock, all of the requirements of the last proviso of clause (v) of the
following paragraph shall have been satisfied) or (ii) used to permanently
retire Senior Indebtedness or Indebtedness of any Restricted Subsidiary, (2)
with respect to any transaction or related series of transactions of securities,
property or assets with an aggregate fair market value in excess of $2,500,000,
at least 75% of the value of consideration for the assets disposed of in such
Asset Sale (excluding (a) Senior Indebtedness (and any Refinancing Indebtedness
issued to refinance any such Indebtedness) assumed by a transferee which
assumption permanently reduces the amount of Indebtedness outstanding on the
Issue Date and permitted to have been Incurred pursuant to Section 4.11
(including that in the case of a revolver or similar arrangement that makes
credit available, such commitment is permanently reduced by such amount), (b)
Purchase Money Indebtedness secured exclusively by the assets subject to such
Asset Sale which is assumed by a transferee and (c) marketable securities that
are promptly converted into cash or Cash Equivalents) consists of cash or Cash
Equivalents, provided that any cash or Cash Equivalents received within 12
months following any such Asset Sale upon conversion of any property or assets
(other than in the form of cash or Cash Equivalents) received in consideration
of such Asset Sale shall be applied promptly in the manner required of Net Cash
Proceeds of any such Asset Sale as set forth above, (3) no Default or Event of
Default shall occur or be continuing after giving effect to, on a pro forma
basis, such Asset Sale, and (4) the Board of Directors of the Company determines
in good faith that the Company or such Restricted Subsidiary, as applicable,
would receive fair market value in consideration of such Asset Sale. An Asset
Sale Offer may be deferred until the accumulated Net Cash Proceeds from Asset
Sales not applied to the uses set forth in (1)(b) above exceeds $5,000,000 and
each Asset Sale Offer shall remain open for 20 Business Days following its
commencement and no longer, except as otherwise required by applicable law (the
"Asset Sale Offer Period"). Upon expiration of the Asset Sale Offer Period, the
Company shall apply the Asset Sale Amount, plus an amount equal to accrued
interest to the purchase of all Indebtedness properly tendered (on a pro rata
basis as described above if the Asset Sale Amount is insufficient to purchase
all Indebtedness so tendered) at the Asset Sale Offer Price (together with
accrued interest).
Notwithstanding the foregoing provisions of the prior
paragraph:
(i) the Company and its Restricted Subsidiaries may, in the
ordinary course of business, convey, sell, lease, transfer, assign or otherwise
dispose of assets acquired and held for resale in the ordinary course of
business;
(ii) the Company and its Restricted Subsidiaries may convey,
sell, lease, transfer, assign or otherwise dispose of assets pursuant to and in
accordance with Section 5.1;
(iii) the Company and its Restricted Subsidiaries may sell or
dispose of damaged, worn out or other obsolete property in the ordinary course
of business so long as such property is no longer necessary for the proper
conduct of the business of the Company or such Restricted Subsidiary, as
applicable;
(iv) the Company and its Restricted Subsidiaries may convey,
sell, lease, transfer, assign or otherwise dispose of assets to the Company or
any of its Wholly Owned Restricted Subsidiaries; and
(v) the Company and its Restricted Subsidiaries may, in the
ordinary course of business (or, if otherwise than in the ordinary course of
business, upon receipt of a favorable written opinion by an independent
financial advisor of national reputation as to the fairness from a financial
point of view to the Company or such Restricted Subsidiary of the proposed
transaction), exchange all or a portion of its property, businesses or assets
for property, businesses or assets which, or Capital Stock of a Person all or
substantially all of whose assets, are of a type used in a Related Business
(provided that such Person shall initially be designated a Restricted Subsidiary
if such Person becomes a Subsidiary of the Company by virtue of such Asset
Sale), or a combination of any such property, businesses, or assets, or Capital
Stock of such a Person and cash or Cash Equivalents; provided that (i) there
shall not exist immediately prior or subsequent thereto a Default or an Event of
Default, (ii) a majority of the independent directors of the Board of Directors
of the Company shall have approved a resolution of the Board of Directors that
such exchange is fair to the Company or such Restricted Subsidiary, as the case
may be, and (iii) any cash or Cash Equivalents received pursuant to any such
exchange shall be applied in the manner applicable to Net Cash Proceeds from an
Asset Sale as set forth pursuant to the provisions of the immediately preceding
paragraph of this covenant; and provided, further, that any Capital Stock of a
Person received in an Asset Sale pursuant to this clause (v) shall be owned
directly by the Company or a Restricted Subsidiary and, when combined with the
Capital Stock of such Person already owned by the Company and its Restricted
Subsidiaries, shall constitute a majority of the voting power and Capital Stock
of such Person.
Restricted Payments that are made in compliance with, and are
counted against amounts available to be made as Restricted Payments pursuant to
clause (c) of Section 4.3, without giving effect to clause (i) of the second
paragraph thereof, shall not be deemed to be Asset Sales.
Any Asset Sale Offer shall be made in compliance with all
applicable laws, rules, and regulations, including, if applicable, Regulation
14E of the Exchange Act and the rules and regulations thereunder and all other
applicable Federal and state securities laws, and any provisions of this
Indenture that conflict with such laws shall be deemed to be superseded by the
provisions of such laws.
The Company shall accumulate all Net Cash Proceeds and the
aggregate amount of such accumulated Net Cash Proceeds not used for the purposes
permitted and within the time provided by this Section 4.14 is referred to as
the "Accumulated Amount."
For purposes of this Section 4.14, "Minimum Accumulation Date"
means each date on which the Accumulated Amount exceeds $5,000,000. Not later
than 10 Business Days after each Minimum Accumulation Date, the Company will
commence an Asset Sale Offer to the Holders and holders of other Indebtedness of
the Company ranking pari passu in right of payment with the Securities from time
to time outstanding with similar provisions requiring the Company to make an
offer to purchase or to redeem such Indebtedness with the proceeds from asset
sales to purchase, on a pro rata basis in proportion to the respective principal
amounts (or accreted values in the case of Indebtedness issued with an original
issue discount) of the Securities and such other Indebtedness then outstanding,
for cash, Securities and such other Indebtedness that will have an aggregate
principal amount (and accreted value, as applicable)(the "Asset Sale Offer
Amount") on the purchase date equal to the Accumulated Amount, at a purchase
price equal to the Asset Sale Offer Price, plus accrued but unpaid interest, if
any, to, and including, the date of purchase (the "Asset Sale Purchase Date"),
which date shall be no later than 30 Business Days after the first date on which
the Asset Sale Offer is required to be made. Notice of an Asset Sale Offer will
be sent 20 Business Days prior to the close of business on the earlier of (a)
the third Business Day prior to the Asset Sale Purchase Date and (b) the third
Business Day following the expiration of the Asset Sale Offer (such earlier date
being the "Final Put Date"), by first-class mail, by the Company to each Holder
at its registered address, with a copy to the Trustee. The notice to the Holders
will contain all information, instructions and materials required by applicable
law or otherwise material to such Holders' decision to tender Securities
pursuant to the Asset Sale Offer. The notice to Holders, which (to the extent
consistent with the Indenture) shall govern the terms of the Asset Sale Offer,
shall state:
(1) that the Asset Sale Offer is being made pursuant to such
notice and this Section 4.14;
(2) the Asset Sale Offer Amount, the Asset Sale Offer Price
(including the amount of accrued and unpaid interest), the Final Put Date, and
the Asset Sale Purchase Date, which Asset Sale Purchase Date shall be on or
prior to 40 Business Days following the Minimum Accumulation Date;
(3) that any Security or portion thereof not tendered or
accepted for payment will continue to accrue interest;
(4) that, unless the Company defaults in depositing cash with
the Paying Agent in accordance with the penultimate paragraph of this Section
4.14 or such payment is otherwise prevented, any Security, or portion thereof,
accepted for payment pursuant to the Asset Sale Offer shall cease to accrue
interest after the Asset Sale Purchase Date;
(5) that Holders electing to have a Security, or portion
thereof, purchased pursuant to an Asset Sale Offer will be required to surrender
the Security, with the form entitled "Option of Holder to Elect Purchase" on the
reverse of the Security completed, to the Paying Agent (which may not for
purposes of this Section 4.14, notwithstanding anything this Indenture to the
contrary, be the Company or any Affiliate of the Company) at the address
specified in the notice prior to the close of business on the Final Put Date;
(6) that Holders will be entitled to withdraw their elections,
in whole or in part, if the Paying Agent (which may not for purposes of this
Section 4.14, notwithstanding any other provision of this Indenture, be the
Company or any Affiliate of the Company) receives, up to the close of business
on the Final Put Date, a telegram, telex, facsimile transmission or letter
setting forth the name of the Holder, the principal amount of the Securities the
Holder is withdrawing and a statement that such Holder is withdrawing his
election to have such principal amount of Securities purchased;
(7) that if Indebtedness in a principal amount in excess of
the principal amount of Securities to be acquired pursuant to the Asset Sale
Offer is tendered and not withdrawn, the Company shall purchase Indebtedness on
a pro rata basis in proportion to the respective principal amounts (or accreted
values in the case of Indebtedness issued with an original issue discount)
thereof (with such adjustments as may be deemed appropriate by the Company so
that only Securities in denominations of $1,000 or integral multiples of $1,000
shall be acquired);
(8) that Holders whose Securities were purchased only in part
will be issued new Securities equal in principal amount to the unpurchased
portion of the Securities surrendered; and
(9) a brief description of the circumstances and relevant
facts regarding such Asset Sales.
On or before an Asset Sale Purchase Date, the Company shall
(i) accept for payment Securities or portions thereof properly tendered and not
properly withdrawn pursuant to the Asset Sale Offer on or before the Final Put
Date (on a pro rata basis if required pursuant to paragraph (7) hereof), (ii)
deposit with the Paying Agent cash sufficient to pay the Asset Sale Offer Price
for all Securities or portions thereof so tendered and accepted and (iii)
deliver to the Trustee Securities so accepted together with an Officers'
Certificate stating the Securities or portions thereof being purchased by the
Company. The Paying Agent shall on each Asset Sale Purchase Date mail or deliver
to Holders of Securities so accepted payment in an amount equal to the Asset
Sale Offer Price for such Securities, and the Trustee shall promptly
authenticate and mail or deliver to such Holders a new Security equal in
principal amount to any unpurchased portion of the Security surrendered. Any
Security not so accepted shall be promptly mailed or delivered by the Company to
the Holder thereof. The Trustee shall not be deemed to have notice of any Asset
Sale Purchase Date unless a Trust Officer receives notice thereof from the
Company or any Holder.
If the amount required to acquire all Indebtedness properly
tendered by Holders pursuant to the Asset Sale Offer (the "Acceptance Amount")
made pursuant to this Section 4.14 is less than the Asset Sale Offer Amount, the
excess of the Asset Sale Offer Amount over the Acceptance Amount may be used by
the Company for general corporate purposes without restriction, unless otherwise
restricted by the other provisions of the Indenture. Upon consummation of any
Asset Sale Offer made in accordance with the terms of the Indenture, the
Accumulated Amount will be reduced to zero irrespective of the amount of
Indebtedness tendered pursuant to the Asset Sale Offer.
SECTION 4.15. Waiver of Stay, Extension or Usury Laws.
The Company covenants (to the extent that it may lawfully do
so) that it will not at any time insist upon, plead, or in any manner whatsoever
claim or take the benefit or advantage of, any stay or extension law or any
usury law or other law which would prohibit or forgive the Company from paying
all or any portion of the principal of, premium of, or interest on the
Securities as contemplated herein, wherever enacted, now or at any time
hereafter in force, or which may affect the covenants or the performance of this
Indenture; and (to the extent that it may lawfully do so) the Company 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.
SECTION 4.16. INTENTIONALLY OMITTED.
SECTION 4.17. INTENTIONALLY OMITTED.
SECTION 4.18. Limitation on Lines of Business.
Neither the Company nor any of its Restricted Subsidiaries
shall directly or indirectly engage in any line or lines of business activity
other than that which, in the reasonable, good faith judgment of the Board of
Directors of the Company, is a Related Business.
SECTION 4.19. Restriction on Sale and Issuance of Subsidiary
Stock.
The Company will not sell, and will not permit any of its
Restricted Subsidiaries to issue or sell, any shares of Capital Stock of any
Restricted Subsidiary of the Company to any Person other than the Company or a
Wholly Owned Restricted Subsidiary of the Company, except for shares of common
stock with no preferences or special rights or privileges and with no redemption
or prepayment provisions ("Special Rights"); provided that, in the case of a
Restricted Subsidiary that is a partnership or joint venture partnership (a
"Restricted Partnership") the Company or any of its Restricted Subsidiaries may
sell or such Restricted Partnership may issue or sell Capital Stock of such
Restricted Partnership with Special Rights no more favorable than those held by
the Company or such Restricted Subsidiary in such Restricted Partnership.
SECTION 4.20. Limitation on Issuances of Guarantee of
Indebtedness.
(a) The Company will not cause or permit any Restricted
Subsidiary (which is not a Guarantor), directly or indirectly, to guarantee,
assume or in any other manner become liable with respect to any Indebtedness of
the Company (other than under the Credit Facility) unless such Restricted
Subsidiary simultaneously executes and delivers a supplemental indenture to the
Indenture providing for a Guarantee of the Securities on the same terms as the
guarantee of such Indebtedness except that (A) such guarantee need not be
secured unless required pursuant to Section 4.13 and (B) if such Indebtedness is
by its terms expressly subordinated in right of payment to the Securities, any
such assumption, guarantee or other liability of such Restricted Subsidiary with
respect to such Indebtedness shall be subordinated to such Restricted
Subsidiary's Guarantee of the Securities at least to the same extent as such
Indebtedness is subordinated to the Securities; provided, however, that the
foregoing shall not apply to Indebtedness of any Restricted Subsidiary that
would otherwise be covered solely by reason of the Company's guarantee of such
Indebtedness.
(b) Notwithstanding the foregoing, any Guarantee by a
Restricted Subsidiary of the Securities shall provide by its terms that it (and
all Liens securing the same) shall be automatically and unconditionally released
and discharged upon any sale, exchange or transfer, to any Person not an
Affiliate of the Company, all of the Company's Capital Stock in, or all or
substantially all the assets of, such Restricted Subsidiary, which transaction
is in compliance with the terms of the Indenture and such Restricted Subsidiary
is released from all guarantees, if any, by it of other Indebtedness of the
Company or any Restricted Subsidiaries and (ii) the release by the holders of
the Indebtedness of the Company described in clause (a) above of their security
interest or their guarantee by such Restricted Subsidiary (including any deemed
release upon payment in full of all obligations under such Indebtedness), at
such time as (A) no other Indebtedness of the Company has been secured or
guaranteed by such Restricted Subsidiary, as the case may be, or (B) the holders
of all such other Indebtedness which is secured or guaranteed by such Restricted
Subsidiary also release their security interest in or guarantee by such
Restricted Subsidiary (including any deemed release upon payment in full of all
obligations under such Indebtedness).
ARTICLE V.
SUCCESSOR CORPORATION
SECTION 5.1. Limitation on Merger, Sale or Consolidation.
The Company will not consolidate with or merge with or into
another Person other than in connection with the Merger, or sell, lease, convey,
transfer or otherwise dispose of all or substantially all of its assets
(computed on a consolidated basis), whether in a single transaction or a series
of related transactions, to another Person or group of affiliated Persons,
unless (i) either (a) the Company is the continuing entity or (b) the resulting,
surviving or transferee entity is a corporation organized under the laws of the
United States, any state thereof or the District of Columbia and expressly
assumes by supplemental indenture all of the obligations of the Company in
connection with the Securities and this Indenture; (ii) no Default or Event of
Default shall exist or shall occur immediately after giving effect on a pro
forma basis to such transaction; (iii) immediately after giving effect to such
transaction on a pro forma basis, the consolidated resulting surviving or
transferee entity would immediately thereafter be permitted to incur at least
$1.00 of additional Indebtedness pursuant to the Annualized Operating Cash Flow
Ratio provision set forth in the second paragraph of Section 4.11; and (iv) the
Company shall have delivered to the Trustee an Officers' Certificate confirming
compliance with the requirements of this Section 5.1.
For purposes of this Section, the sale, lease, conveyance,
assignment, transfer or other disposition of all or substantially all of the
properties and assets of one or more Restricted Subsidiaries of the Company,
which properties and assets, if held by the Company instead of such Restricted
Subsidiaries, would constitute all or substantially all of the properties and
assets of the Company on a consolidated basis, shall be deemed to be the
transfer of all or substantially all of the properties and assets of the
Company.
SECTION 5.2. Successor Corporation Substituted.
Upon any consolidation or merger or any transfer (other than a
lease) of all or substantially all of the assets of the Company (other than a
transfer that results in the transfer of assets constituting or accounting for
less than 95% of the consolidated assets (as of the last balance sheet available
to the Company), revenues, or Operating Cash Flow of the Company (as of the last
twelve month period for which financial statements are available to the
Company)) in accordance with the foregoing, the successor corporation formed by
such consolidation or into which the Company is merged or to which such transfer
is made, shall succeed to, and be substituted for, and may exercise every right
and power of, the Company under this Indenture with the same effect as if such
successor corporation had been named therein as the Company, and the Company
shall be released from the obligations under the Securities and this Indenture.
ARTICLE VI.
EVENTS OF DEFAULT AND REMEDIES
SECTION 6.1. 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 caused voluntarily or involuntarily or effected, without limitation, 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) the failure by the Company to pay any installment of
interest on the Securities as and when the same becomes due and payable, and (x)
with respect to the first six Interest Payment Dates, the continuance of any
such failure for 10 days and (y) with respect to any installment of interest
after the first six Interest Payment Dates, the continuance of such failure for
a period of 30 days;
(2) the failure by the Company to pay all or any part of the
principal, or premium, if any, on the Securities when and as the same becomes
due and payable at maturity, redemption, by acceleration or otherwise,
including, without limitation, payment of the Change of Control Purchase Price
in accordance with Article XI, or the Asset Sale Offer Price in accordance with
Section 4.14;
(3) the failure by the Company to observe or perform any other
covenant, agreement or warranty, contained in the Securities or this Indenture
(other than a default in the performance of any covenant or agreement which is
specifically dealt with elsewhere in this Section 6.1), or failure by the
Company to cause each Unrestricted Subsidiary to comply with clause (c) of the
definition of "Unrestricted Subsidiary," and the continuance of such failure 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 Holders of at
least 25% in aggregate principal amount of the Securities outstanding, a written
notice specifying such default or breach, requiring it to be remedied and
stating that such notice is a "Notice of Default" hereunder;
(4) a decree, judgment, or order by a court of competent
jurisdiction shall have been entered adjudging the Company or any of its
Significant Restricted Subsidiaries as bankrupt or insolvent, or approving as
properly filed a petition seeking reorganization of the Company or any of its
Significant Restricted Subsidiaries under any bankruptcy or similar law, and
such decree or order shall have continued undischarged and unstayed for a period
of 60 days; or a decree or order of a court of competent jurisdiction over the
appointment of a receiver, liquidator, trustee, or assignee in bankruptcy or
insolvency of the Company, any of its Significant Restricted Subsidiaries, or of
the property of any such Person, or for the winding up or liquidation of the
affairs of any such Person, shall have been entered, and such decree, judgment,
or order shall have remained in force undischarged and unstayed for a period of
60 days;
(5) the Company or any of its Significant Restricted
Subsidiaries shall institute proceedings to be adjudicated a voluntary bankrupt,
or shall consent to the filing of a bankruptcy proceeding against it, or shall
file a petition or answer or consent seeking reorganization under any bankruptcy
or similar law or similar statute, or shall consent to the filing of any such
petition, or shall consent to the appointment of a Custodian, receiver,
liquidator, trustee, or assignee in bankruptcy or insolvency of it or any of its
assets or property, or shall make a general assignment for the benefit of
creditors, or shall admit in writing its inability to pay its debts generally as
they become due, or shall, within the meaning of any Bankruptcy Law, become
insolvent, fails generally to pay its debts as they become due, or takes any
corporate action in furtherance of or to facilitate, conditionally or otherwise,
any of the foregoing;
(6) one or more defaults in any Indebtedness for money
borrowed by the Company or any of its Restricted Subsidiaries (or the payment of
which is guaranteed by the Company or any of its Restricted Subsidiaries),
whether such Indebtedness or guarantee now exists or is created after the Issue
Date, which default results from the failure to pay Indebtedness at its final
maturity date or results in the acceleration of such Indebtedness prior to its
express maturity and, in each case, the principal amount of any such
Indebtedness, together with the principal amount of any other such Indebtedness
which was not paid at its final maturity date or the maturity of which has been
so accelerated, aggregates $10,000,000 or more; or
(7) final unsatisfied judgments not covered by insurance
aggregating in excess of $10,000,000 at any one time rendered against the
Company or any of its Restricted Subsidiaries and not stayed, bonded or
discharged within 60 days.
If a Default of which the Trustee has actual knowledge occurs
and is continuing, the Trustee must, within 90 days after the occurrence of such
default, give to the Holders notice of such default.
SECTION 6.2. Acceleration of Maturity Date; Rescission and
Annulment.
If an Event of Default occurs and is continuing (other than an
Event of Default specified in Section 6.1(4) or (5)) relating to the Company or
any Restricted Subsidiary, then in every such case, unless the principal of all
of the Securities shall have already become due and payable, either the Trustee
or the Holders of not less than 25% in aggregate principal amount of the
Securities then outstanding, by notice in writing to the Company (and to the
Trustee if given by Holders) (an "Acceleration Notice"), may declare all of the
principal of the Securities (or the Change of Control Purchase Price if the
Event of Default includes failure to pay the Change of Control Purchase Price)
(or the Special Redemption Price, plus accrued and unpaid interest, if any, to
the date of redemption, in connection with any Special Mandatory Redemption, if
the Event of Default relates to failure to make payment in connection with the
Special Mandatory Redemption), determined as set forth below, including in each
case accrued interest thereon to be due and payable immediately. If an Event of
Default specified in Section 6.1(4) or (5) above relating to the Company or any
Significant Restricted Subsidiary occurs, all principal (or the Change of
Control Purchase Price or Special Redemption Price, as applicable) and accrued
interest thereon will be immediately due and payable on all outstanding
Securities without any declaration or other act on the part of Trustee or the
Holders.
At any time after such a declaration of acceleration being
made and before a judgment or decree for payment of the money due has been
obtained by the Trustee as hereinafter provided in this Article VI, the Holders
of a majority in aggregate principal amount of then outstanding Securities, by
written notice to the Company and the Trustee, may rescind, on behalf of all
Holders, any such declaration of acceleration if:
(1) the Company has paid or deposited with the Trustee cash
sufficient to pay (A) all overdue interest on all Securities, (B) the principal
of (and premium, if any, applicable to any Securities which would become due
otherwise than by such declaration of acceleration, and interest thereon at the
rate borne by the Securities, (C) to the extent that payment of such interest is
lawful, interest upon overdue interest at the rate borne by the Securities, (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 non-payment of the
principal of, premium, if any, and interest on Securities which have become due
solely by such declaration of acceleration, have been cured or waived as
provided in Section 6.12, including, if applicable, any Event of Default
relating to the covenants contained in Section 11.1.
Notwithstanding the previous sentence of this Section 6.2, no waiver shall be
effective against any Holder for any Event of Default or event which with notice
or lapse of time or both would be an Event of Default with respect to any
covenant or provision which cannot be modified or amended without the consent of
the Holder of each outstanding Security affected thereby, unless all such
affected Holders agree, in writing, to waive such Event of Default or other
event. No such waiver shall cure or waive any subsequent default or impair any
right consequent thereon.
SECTION 6.3. Collection of Indebtedness and Suits for
Enforcement by Trustee.
The Company covenants that if an Event of Default in payment
of principal, premium, or interest specified in clause (1) or (2) of Section 6.1
occurs and is continuing, 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, 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 borne by the Securities, and, in addition thereto, such
further amount as shall be sufficient to cover the reasonable costs and expenses
of collection, including compensation to, and 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 in favor
of the Holders, 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.
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 effective 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.
SECTION 6.4. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or
other judicial proceeding relative to the Company or any other obligor upon the
Securities or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of the Securities
shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand on
the Company for the payment of overdue principal or interest) shall be entitled
and empowered, by intervention in such proceeding or otherwise to take any and
all actions under the TIA, including (1) to file and prove a claim for the whole
amount of principal (and premium, if any) and interest owing and unpaid in
respect of the Securities and to file such other papers or documents as may be
necessary or advisable in order to have the claims of the Trustee (including any
claim for the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agent and counsel) and of the Holders allowed in such judicial
proceeding, and (2) 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 7.7.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any 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.
SECTION 6.5. 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 in favor of the Holders, and any
recovery of judgment shall, after provision for the payment of compensation to,
and 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 6.6. Priorities.
Any money collected by the Trustee pursuant to this Article VI
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,
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 Trustee in payment of all amounts due
pursuant to Section 7.7;
SECOND: To the Holders in payment of the amounts then due
and unpaid for principal of, 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 kind, according to the amounts due and
payable on such Securities for principal, premium
(if any) and interest, respectively; and
THIRD: To whomsoever may be lawfully entitled thereto,
the remainder, if any.
SECTION 6.7. Limitation on Suits.
No Holder of any Security shall have any right to order or
direct the Trustee 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 (A) such Holder has previously given
written notice to the Trustee of a continuing Event of Default; (B) the Holders
of not less than 25% in principal amount of then 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; (C) such Holder or
Holders have offered to the Trustee reasonable security or indemnity against the
costs, expenses and liabilities to be incurred or reasonably probable to be
incurred in compliance with such request; (D) the Trustee for 60 days after its
receipt of such notice, request and offer of indemnity has failed to institute
any such proceeding; and (E) 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 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 6.8. Unconditional Right of Holders to Receive
Principal, Premium and Interest.
Notwithstanding any other provision of 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
accrued interest on, such Security on the Maturity Date of such payments as
expressed in such Security (in the case of redemption, the Redemption Price on
the applicable Redemption Date, in the case of the Change of Control Purchase
Price, on the applicable Change of Control Purchase Date, and in the case of an
Asset Sale Offer, the Asset Sale Offer Price on the Asset Sale Purchase Date,
and to institute suit for the enforcement of any such payment after such
respective dates, and such rights shall not be impaired without the consent of
such Holder.
SECTION 6.9. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities in Section 2.7, 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, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
SECTION 6.10. Delay or Omission Not Waiver.
No delay or omission by the Trustee or by any Holder of any
Security to exercise any right or remedy arising upon any Event of Default shall
impair the exercise of any such right or remedy or constitute a waiver of any
such Event of Default. Every right and remedy given by this Article VI 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 6.11. Control by Holders.
The Holder or Holders of a majority in aggregate principal
amount of then outstanding Securities will 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 upon the Trustee, provided
that (1) such direction shall not be in conflict with any rule of law or with
this Indenture, (2) the Trustee shall not determine that the action so directed
would be unjustly prejudicial to the Holders not taking part in such direction,
(3) the Trustee may take any other action deemed proper by the Trustee which is
not inconsistent with such direction, (4) the Trustee may require
indemnification to its satisfaction before taking any action in accordance with
such direction and (5) the Trustee shall not be liable with respect to any
action so taken in good faith.
SECTION 6.12. Waiver of Past Default.
Subject to Section 6.8, the Holder or Holders of not less than
a majority in aggregate principal amount of the outstanding Securities may, on
behalf of all Holders, prior to the declaration of the acceleration of the
maturity of the Securities, waive any past default hereunder and its
consequences, except a default (A) in the payment of the principal of, premium,
if any, or interest on, any Security as specified in clauses (1) and (2) of
Section 6.1, or (B) in respect of a covenant or provision hereof which, under
Article IX, 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 the exercise of any right arising
therefrom.
SECTION 6.13. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any
Security by his acceptance thereof shall be deemed to have agreed, that any
court may in its discretion require, in any suit for the enforcement of any
right or remedy under this Indenture, or in any suit against the Trustee for any
action taken, suffered or omitted to be taken by it as Trustee, the filing by
any party litigant in such suit of an undertaking to pay the costs of such suit,
and that such court may in its discretion assess reasonable costs, including
reasonable attorneys' fees, against any party litigant in such suit, having due
regard to the merits and good faith of the claims or defenses made by such party
litigant; but the provisions of this Section 6.13 shall not apply to any suit
instituted by the Company, to any suit instituted by the Trustee, to any suit
instituted by any Holder, or group of Holders, holding in the aggregate more
than 10% in aggregate principal amount of the outstanding Securities, or to any
suit instituted by any Holder for enforcement of the payment of principal of, or
premium (if any) or interest on, any Security on or after the Maturity Date
expressed in such Security (including, in the case of redemption, on or after
the Redemption Date).
SECTION 6.14. 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 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.
ARTICLE VII.
TRUSTEE
The Trustee hereby accepts the trust imposed upon it by this
Indenture and covenants and agrees to perform the same, as herein expressed.
SECTION 7.1. Duties of Trustee.
(a) If a Default or an Event of Default has occurred and is
continuing, the Trustee shall exercise such of the rights and powers vested in
it by this Indenture and use the same degree of care and skill in their exercise
as a prudent Person would exercise or use under the circumstances in the conduct
of his own affairs.
(b) Except during the continuance of a Default or an Event of
Default:
(1) The Trustee need perform only those duties as are
specifically set forth in this Indenture and no others, and no covenants or
obligations shall be implied in or read into this Indenture which are adverse to
the Trustee.
(2) In the absence of bad faith on its part, the
Trustee may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or opinions
furnished to the Trustee and conforming to the requirements of this Indenture.
However, the Trustee shall examine the certificates and opinions to determine
whether or not they conform to the requirements of this Indenture.
(a) 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 paragraph does not limit the effect of
paragraph (b) of this Section 7.1.
(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.
(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 6.11.
(a) 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.
(b) Every provision of this Indenture that in any way relates
to the Trustee is subject to paragraphs (a), (b), (c), (d) and (f) of this
Section 7.1 and shall extend to the Registrar and Paying Agent.
(c) The Trustee shall not be liable for interest on any assets
received by it except as the Trustee may agree in writing with the Company.
Assets held in trust by the Trustee need not be segregated from other assets
except to the extent required by law.
SECTION 7.2. Rights of Trustee.
Subject to Section 7.1:
(a) The Trustee may rely on any document believed by it to be
genuine and to have been signed or presented by the proper Person. The Trustee
need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may
consult with counsel and may require an Officers' Certificate or an Opinion of
Counsel, which shall conform to Sections 13.4 and 13.5. The Trustee shall not be
liable for any action it takes or omits to take in good faith in reliance on
such certificate or advice of counsel.
(c) The Trustee may act through its attorneys and agents and
shall not be responsible for the misconduct or negligence of any agent appointed
with due care.
(d) The Trustee will not be liable for any action it takes or
omits to take in good faith which it believes to be authorized or within its
rights or powers conferred upon it by this Indenture.
(e) The Trustee will not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, notice, request, direction, consent, order, bond,
debenture, or other paper or document, but the Trustee, in its discretion, may
make such further inquiry or investigation into such facts or matters as it may
see fit and, if the Trustee shall determine to make such further inquiry or
investigation it shall be entitled to examine the books, records and premises of
the Company personally or by agent or attorney.
(f) The Trustee will be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request, order or
direction of any of the Holders, pursuant to the provisions of this Indenture,
unless such Holders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which may be incurred
therein or thereby.
(g) Unless otherwise specifically provided for in this
Indenture, any demand, request, direction or notice from the Company shall be
sufficient if signed by an Officer of the Company.
(h) The Trustee shall have no duty to inquire as to the
performance of the covenants in Article IV hereof. In addition, the Trustee
shall not be deemed to have knowledge of any Default or Event of Default
hereunder or under the Pledge and Escrow Agreement except (i) any Event of
Default occurring pursuant to Sections 6.1(1) or 6.1(2) (excluding failure to
pay a Change of Control Purchase Price or Asset Sale Purchase Price), or (ii)
any Default or Event of Default of which the Trustee shall have received written
notification or obtained actual knowledge. In the absence of such actual
knowledge or notice, the Trustee may conclusively assume that no default has
occurred and is continuing under this Indenture.
(i) The permissive rights of the Trustee to do things
enumerated in this Indenture shall not be construed as a duty unless so
specified herein.
SECTION 7.3. Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become
the owner or pledgee of Securities and may otherwise deal with the Company or
any of the Company's Subsidiaries, or their respective Affiliates with the same
rights it would have if it were not Trustee. Any Agent may do the same with like
rights. However, the Trustee must comply with Sections 7.10 and 7.11.
SECTION 7.4. Trustee's Disclaimer.
The Trustee makes no representation as to the validity,
adequacy or priority of this Indenture or the Securities and it shall not be
accountable for the Company's use of the proceeds from the Securities, and it
shall not be responsible for any statement in the Securities, other than the
Trustee's certificate of authentication, or the use or application of any funds
received by a Paying Agent other than the Trustee.
SECTION 7.5. Notice of Default.
If a Default or an Event of Default occurs and is continuing
and if it is actually known to the Trustee, the Trustee shall mail to each
Securityholder notice of the uncured Default or Event of Default within 90 days
after such Default or Event of Default occurs. Except in the case of a Default
or an Event of Default in payment of principal (or premium, if any) of, or
interest on, any Security (including the payment of the Change of Control
Purchase Price on the Change of Control Purchase Date, the payment of the
Redemption Price on the Redemption Date and the payment of the Asset Sale Offer
Price on the Asset Sale Purchase Date), the Trustee may withhold the notice if
and so long as a Trust Officer in good faith determines that withholding the
notice is in the interest of the Securityholders.
SECTION 7.6. Reports by Trustee to Holders.
Within 60 days after each May 15 beginning with the May 15
following the date of this Indenture, the Trustee shall, if required by law,
mail to each Securityholder a brief report dated as of such May 15 that complies
with TIA ss. 313(a). The Trustee also shall comply with TIA ss.ss. 313(b) and
313(c).
The Company shall promptly notify the Trustee in writing if
the Securities become listed on any stock exchange or automatic quotation
system.
A copy of each report at the time of its mailing to
Securityholders shall be mailed to the Company and filed with the SEC and each
stock exchange, if any, on which the Securities are listed.
SECTION 7.7. Compensation and Indemnity.
The Company agrees to pay to the Trustee from time to time
reasonable compensation for its services. The Trustee's compensation shall not
be limited by any law on compensation of a trustee of an express trust. The
Company shall reimburse the Trustee upon request for all reasonable
disbursements, expenses and advances incurred or made by it. Such expenses shall
include the reasonable compensation, disbursements and expenses of the Trustee's
agents, accountants, experts and counsel.
The Company agrees to indemnify the Trustee (in its capacity
as Trustee) and each of its officers, directors, attorneys-in-fact and agents
for, and hold it harmless against, any claim, demand, expense (including but not
limited to reasonable compensation, disbursements and expenses of the Trustee's
agents and counsel), loss or liability incurred by it without negligence or
willful misconduct on its part, arising out of or in connection with the
administration of this trust and its rights or duties hereunder including the
reasonable costs and expenses of defending itself against any claim or liability
in connection with the exercise or performance of any of its powers or duties
hereunder. The Trustee shall notify the Company promptly of any claim asserted
against the Trustee for which it may seek indemnity. The Company shall defend
the claim and the Trustee shall provide reasonable cooperation at the Company's
expense in the defense. The Trustee may have separate counsel and the Company
shall pay the reasonable fees and expenses of such counsel; provided that the
Company will not be required to pay such fees and expenses if they assume the
Trustee's defense and there is no conflict of interest between the Company and
the Trustee in connection with such defense. The Company need not pay for any
settlement made without their written consent. The Company need not reimburse
any expense or indemnify against any loss or liability to the extent incurred by
the Trustee through its negligence or willful misconduct.
To secure the Company's payment obligations in this Section
7.7., the Trustee shall have a lien prior to the Securities on all assets held
or collected by the Trustee, in its capacity as Trustee, except assets held in
trust to pay principal and premium, if any, of or interest on particular
Securities.
When the Trustee incurs expenses or renders services after an
Event of Default specified in Section 6.1(4) or (5) occurs, the expenses and the
compensation for the services are intended to constitute expenses of
administration under any Bankruptcy Law.
The Company's obligations under this Section 7.7 and any lien
arising hereunder shall survive the resignation or removal of the Trustee, the
discharge of the Company's obligations pursuant to Article VIII of this
Indenture and any rejection or termination of this Indenture under any
Bankruptcy Law.
SECTION 7.8. Replacement of Trustee.
The Trustee may resign by so notifying the Company in writing.
The Holder or Holders of a majority in principal amount of the outstanding
Securities may remove the Trustee by so notifying the Company and the Trustee in
writing and may appoint a successor trustee with the Company's consent. The
Company may remove the Trustee if:
(a) the Trustee fails to comply with Section 7.10;
(b) the Trustee is adjudged bankrupt or insolvent;
(c) a receiver, Custodian, or other public officer takes
charge of the Trustee or its property; or
(d) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the office of
Trustee for any reason, the Company shall promptly appoint a successor Trustee.
Within one year after the successor Trustee takes office, the Holder or Holders
of a majority in principal amount of the Securities may appoint a successor
Trustee to replace the successor Trustee appointed by the Company. A successor
Trustee shall deliver a written acceptance of its appointment to the retiring
Trustee and to the Company. Immediately after that and provided that all sums
owing to the trustee provided for in Section 7.7 have been paid, the retiring
Trustee shall transfer all property held by it as trustee to the successor
Trustee, subject to the lien provided in Section 7.7, the resignation or removal
of the retiring Trustee shall become effective, and the successor Trustee shall
have all the rights, powers and duties of the Trustee under this Indenture. A
successor Trustee shall mail notice of its succession to each Holder.
If a successor Trustee does not take office within 60 days
after the retiring Trustee resigns or is removed, the retiring Trustee, the
Company or the Holder or Holders of at least 10% in principal amount of the
outstanding Securities may petition any court of competent jurisdiction for the
appointment of a successor Trustee.
If the Trustee fails to comply with Section 7.10, any
Securityholder may petition any court of competent jurisdiction for the removal
of the Trustee and the appointment of a successor Trustee.
Notwithstanding replacement of the Trustee pursuant to this
Section 7.8, the Company's obligations under Section 7.7 shall continue for the
benefit of the retiring Trustee.
SECTION 7.9. Successor Trustee by Merger, Etc.
If the Trustee consolidates with, merges or converts into, or
transfers all or substantially all of its corporate trust business to, another
corporation, the resulting, surviving or transferee corporation without any
further act shall, if such resulting, surviving or transferee corporation is
otherwise eligible hereunder, be the successor Trustee.
SECTION 7.10. Eligibility; Disqualification.
The Trustee shall at all times satisfy the requirements of TIA
ss. 310(a)(1), (2) and (5). The Trustee shall have a combined capital and
surplus of at least $10,000,000 as set forth in its most recent published annual
report of condition. The Trustee shall comply with TIA ss. 310(b).
SECTION 7.11. Preferential Collection of Claims against
Company.
The Trustee shall comply with TIA ss. 311(a), excluding any
creditor relationship listed in TIA ss. 311(b). A Trustee who has resigned or
been removed shall be subject to TIA ss. 311(a) to the extent indicated.
SECTION 7.12. Wire Transfers and Investments.
(a) The Trustee shall be authorized to seek confirmation of
fund transfer instructions by telephone call-back to the person or persons
designated on Exhibit E hereto, and the Trustee may rely upon the confirmations
of any one purporting to be the person or persons so designated. The persons and
telephone numbers for call-backs may be changed only in a writing actually
received and acknowledged by the Trustee. The parties to this Indenture
acknowledge that such security procedure is commercially reasonable.
(b) It is understood that the Trustee and the beneficiary's
bank in any funds transfer may rely solely upon any account numbers or similar
identifying number provided by either of the other parties hereto to identify
(i) the beneficiary, (ii) the beneficiary's bank, or (iii) an order it executes
using any such identifying number, even where its use may result in a person
other than the beneficiary being paid, or the transfer of funds to a bank other
than the beneficiary's bank or an intermediary bank designated.
(c) All money held by the Trustee in any of the accounts or
funds established pursuant hereto shall be invested in Marketable U.S.
Securities upon receipt of a Company Request. In the absence of such Company
Request, the Trustee shall invest in those items described in clause (vi) of the
definition of Marketable U.S. Securities. The Trustee may act as principal or
agent in the acquisition or disposition of investments. The Trustee shall not be
responsible for any loss of any investment made in accordance herewith.
ARTICLE VIII.
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
SECTION 8.1. Option to Effect Legal Defeasance or Covenant
Defeasance.
The Company may, at its option and at any time, elect to have
Section 8.2 or Section 8.3 applied to all outstanding Securities upon compliance
with the conditions set forth below in this Article VIII.
SECTION 8.2. Legal Defeasance and Discharge.
Upon the Company's exercise under Section 8.1 of the option
applicable to this Section 8.2, the Company shall be deemed to have been
discharged from its obligations with respect to all outstanding Securities on
the date the conditions set forth below are satisfied (hereinafter, "Legal
Defeasance"). For this purpose, such Legal 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 8.5 and the other Sections of
this Indenture referred to in (a) and (b) below, and to have satisfied all its
other obligations under such Securities and this Indenture (and the Trustee, on
demand of and 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
outstanding Securities to receive solely from the trust fund described in
Section 8.4, and as more fully set forth in such Section 8.4, payments in
respect of the principal of, 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 2.4, 2.7, 2.10, 2.13, 2.14, 2.15 and 4.2, (c) the
rights, powers, trusts, duties and immunities of the Trustee hereunder and the
Company's obligations in connection therewith and (d) this Article VIII. Subject
to compliance with this Article VIII, the Company may exercise its option under
this Section 8.2 notwithstanding the prior exercise of its option under Section
8.3 with respect to the Securities.
SECTION 8.3. Covenant Defeasance.
Upon the Company's exercise under Section 8.1 of the option
applicable to this Section 8.3, the Company shall be released from its
obligations under the covenants contained in Sections 4.3, 4.5, 4.6, 4.7, 4.8,
4.10, 4.11, 4.12, 4.13, 4.14, 4.18, 4.19, 4.20 and Article V (other than the
obligation of any successor to assume the obligations of the Company hereunder)
with respect to the outstanding Securities on and after the date the conditions
set forth below are satisfied (hereinafter, "Covenant Defeasance"), and the
Securities shall thereafter be deemed not "outstanding" for the purposes of any
direction, waiver, consent or declaration or act of Holders (and the
consequences of any thereof) in connection with such covenants, but shall
continue to be deemed "outstanding" for all other purposes hereunder. For this
purpose, such Covenant Defeasance means that, with respect to the outstanding
Securities, the Company need not comply with and shall have no liability in
respect of any term, condition or limitation set forth in any such covenant,
whether directly or indirectly, by reason of any reference elsewhere herein to
any such covenant or by reason of any reference in any such covenant to any
other provision herein or in any other document, but, except as specified above,
the remainder of this Indenture and such Securities shall be unaffected thereby.
SECTION 8.4. Conditions to Legal or Covenant Defeasance.
The following shall be the conditions to the application of
either Section 8.2 or Section 8.3 to the outstanding Securities:
(a) The Company shall irrevocably have deposited or caused to
be deposited with the Trustee (or another trustee satisfying the requirements of
Section 7.10 who shall agree to comply with the provisions of this Article VIII
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, U.S. Legal Tender, Government
Securities or a combination thereof, in such amounts, as in each case will be
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, premium, if
any, and interest on such Securities on the Stated Maturity or on the applicable
Redemption Date of such principal or installment of principal of, premium, if
any, or interest on such Securities and the Holders of Securities must have a
valid, perfected, exclusive security interest in such trust; provided that the
Trustee shall have been irrevocably instructed to apply such U.S. Legal Tender
or Government Securities to said payments with respect to the Securities.
(b) In the case of an election under Section 8.2, the Company
shall have delivered to the Trustee an Opinion of Counsel in the United States
reasonably acceptable to the Trustee confirming that (i) the Company has
received from, or there has been published by, the Internal Revenue Service a
ruling or (ii) since the date hereof, there has been a change in the applicable
Federal income tax law, in either case to the effect that, and based thereon
such Opinion of Counsel shall confirm that, the Holders of such Securities will
not recognize income, gain or loss for Federal income tax purposes as a result
of such Legal Defeasance and will be subject to Federal income tax in the same
amount, in the same manner and at the same times as would have been the case if
such Legal Defeasance had not occurred;
(c) In the case of an election under Section 8.3, the Company
shall have delivered to the Trustee an Opinion of Counsel in the United States
reasonably acceptable to such Trustee confirming that the Holders of such
Securities will not recognize income, gain or loss for Federal income tax
purposes as a result of such Covenant Defeasance and will be subject to Federal
income tax on the same amounts, in the same manner and at the same times as
would have been the case if such Covenant Defeasance had not occurred;
(d) No Default or Event of Default shall have occurred and be
continuing on the date of such deposit or, in so far as Section 6.1(4) or 6.1(5)
is concerned, at any time during the period ending on the 91st day after the
date of such deposit (it being understood that this condition is a condition
subsequent which shall not be deemed satisfied until the expiration of such
period, but in the case of Covenant Defeasance, the covenants which are defeased
under Section 8.3 will cease to be in effect unless an Event of Default under
Section 6.1(4) or 6.1(5) occurs during such period);
(e) Such Legal Defeasance or Covenant Defeasance shall not
result in a breach or violation of, or constitute a default under this Indenture
or any other material agreement or instrument to which the Company or any of its
Subsidiaries is a party or by which the Company or any of its Subsidiaries is
bound;
(f) In the case of an election under either Section 8.2 or
8.3, the Company shall have delivered to the Trustee an Officers' Certificate
stating that the deposit made by the Company pursuant to its election under
Section 8.2 or 8.3 was not made by the Company with the intent of preferring the
Holders of such Notes over any other creditors of the Company or with the intent
of defeating, hindering, delaying or defrauding creditors of the Company or
others; and
(g) The Company shall have delivered to the Trustee an
Officers' Certificate stating that all conditions precedent provided for or
relating to either the Legal Defeasance under Section 8.2 or the Covenant
Defeasance under Section 8.3 (as the case may be) have been complied with as
contemplated by this Section 8.4.
SECTION 8.5. Deposited U.S. Legal Tender and Government
Securities to be Held in Trust; Other Miscellaneous Provisions.
Subject to Section 8.6, all, U.S. Legal Tender and Government
Securities (including the proceeds thereof) deposited with the Trustee (or other
qualifying trustee, collectively for purposes of this Section 8.5, the
"Trustee") pursuant to Section 8.4 in respect of the outstanding Securities
shall be held in trust and applied by the Trustee, in accordance with the
provisions of such Securities and this Indenture, to the payment, either
directly or through any Paying Agent as the Trustee may determine, to the
Holders of such Securities of all sums due and to become due thereon in respect
of principal, premium, if any, and interest, but such money need not be
segregated from other funds except to the extent required by law.
SECTION 8.6. Repayment to the Company.
Subject to any applicable escheat or abandoned property laws,
any money deposited with the Trustee or any Paying Agent, or then held by the
Company, in trust for the payment of the principal of, 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 within sixty (60) days after termination of such two-year
period; and the Holder of such Security shall thereafter look only to the
Company for payment thereof, and all liability of the Trustee or such Paying
Agent with respect to such trust money shall thereupon cease. The Trustee shall
not be liable to the Company or any Holder for interest on funds held by it for
the payment and discharge of the interest, or premium (if any) on or principal
of any of the Securities to any Holder. The Company shall not be liable for any
interest on the sums paid to it pursuant to this paragraph and shall not be
regarded as a trustee of such money.
SECTION 8.7. Reinstatement.
If the Trustee or Paying Agent is unable to apply any U.S.
Legal Tender or Government Securities in accordance with Section 8.2 or 8.3, as
the case may be, 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 Section 8.2
or 8.3 until such time as the Trustee or Paying Agent is permitted to apply such
money in accordance with Sections 8.2 and 8.3, as the case may be; provided,
however, that, if the Company makes any payment of principal of, 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 cash held by the Trustee or Paying Agent.
ARTICLE IX.
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.1. Supplemental Indentures Without Consent of
Holders.
Without the consent of any Holder, the Company, when
authorized by Board Resolutions, 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 cure any ambiguity, defect, or inconsistency, 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 (1) shall not adversely
affect the interests of any Holder in any respect;
(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 to make any other change that does not adversely affect the rights of
any Holder, provided that the Company has delivered to the Trustee an Opinion of
Counsel stating that such change does not adversely affect the rights of any
Holder;
(3) to provide for collateral or guarantors for the
Securities;
(4) to evidence the succession of another Person to the
Company, and the assumption by any such successor of the obligations of the
Company, herein and in the Securities in accordance with Article V;
(5) to comply with the TIA; or
(6) to provide for the issuance and authorization of the
Exchange Securities.
SECTION 9.2. Amendments, Supplemental Indentures and Waivers
with Consent of Holders.
Subject to Section 6.8, with the consent of the Holders of not
less than a majority in aggregate principal amount of then outstanding
Securities, by written act of said Holders delivered to the Company and the
Trustee, the Company, when authorized by Board Resolutions, and the Trustee may
amend or supplement this Indenture or the Securities or 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
the Securities or of modifying in any manner the rights of the Holders under
this Indenture or the Securities. Subject to Section 6.8, the Holder or Holders
of not less than a majority, in principal amount of then outstanding Securities
may waive compliance by the Company with any provision of this Indenture or the
Securities. Notwithstanding any of the above, however, no such amendment,
supplemental indenture or waiver shall, without the consent of the Holder of
each outstanding Security affected thereby:
(1) reduce the percentage of principal amount of Securities
whose Holders must consent to an amendment, supplement or waiver of any
provision of this Indenture or the Securities;
(2) reduce the rate or extend the time for payment of interest
on any Security;
(3) reduce the principal amount of any Security, the Change of
Control Purchase Price, the Asset Sale Offer Price or the Redemption Price;
(4) change the Stated Maturity or the Change of Control
Purchase Date, the Asset Sale Purchase Date, the Asset Sale Offer Period, or the
Change of Control Offer Period of any Security;
(5) alter the redemption provisions of Article III or
paragraph 5 of the Securities or the terms or provisions of Section 4.14 or the
terms or provisions of Article XI, in any case, in a manner adverse to any
Holder;
(6) make any changes in the provisions concerning waivers of
Defaults or Events of Default by Holders of the Securities or the rights of
Holders to recover the principal or premium of, interest on, or redemption
payment with respect to, any Security, including without limitation any changes
in Section 6.8, 6.12 or this third sentence of this Section 9.2;
(7) make the principal of, or the interest on, any Security
payable with anything or in any manner other than as provided for in this
Indenture (including changing the place of payment where, or the coin or
currency in which, any Security or any premium or the interest thereon is
payable) and the Securities as in effect on the date hereof; or
(8) make the Securities subordinated in right of payment to
any extent or under any circumstances to any other indebtedness.
It shall not be necessary for the consent of the Holders under
this Section 9.2 to approve the particular form of any proposed amendment,
supplement or waiver, but it shall be sufficient if such consent approves the
substance thereof.
After an amendment, supplement or waiver under this Section
9.2 becomes effective, the Company shall mail to the Holders affected thereby a
notice briefly describing the amendment, supplement or waiver. Any failure of
the Company to mail such notice, or any defect therein, shall not, however, in
any way impair or affect the validity of any such supplemental indenture or
waiver.
After an amendment, supplement or waiver under this Section
9.2 or Section 9.4 becomes effective, it shall bind each Holder.
In connection with any amendment, supplement or waiver under
this Article IX, the Company may, but shall not be obligated to, offer to any
Holder who consents to such amendment, supplement or waiver, or to all Holders,
consideration for such Holder's consent to such amendment, supplement or waiver.
SECTION 9.3. Compliance with TIA.
Every amendment, waiver or supplement of this Indenture or the
Securities shall comply with the TIA as then in effect.
SECTION 9.4. Revocation and Effect of Consents.
Until an amendment, waiver or supplement becomes effective, a
consent to it by a Holder is a continuing consent by the Holder and every
subsequent Holder of a Security or portion of a Security that evidences the same
debt as the consenting Holder's Security, even if notation of the consent is not
made on any Security. However, any such Holder or subsequent Holder may revoke
the consent as to his Security or portion of his Security by written notice to
the Company or the Person designated by the Company as the Person to whom
consents should be sent if such revocation is received by the Company or such
Person before the date on which the Trustee receives an Officers' Certificate
certifying that the Holders of the requisite principal amount of Securities have
consented (and not theretofore revoked such consent) to the amendment,
supplement or waiver.
The Company may, but shall not be obligated to, fix a record
date for the purpose of determining the Holders entitled to consent to any
amendment, supplement or waiver, which record date shall be the date so fixed by
the Company notwithstanding the provisions of the TIA. If a record date is
fixed, then notwithstanding the last sentence of the immediately preceding
paragraph, those Persons who were Holders at such record date, and only those
Persons (or their duly designated proxies), shall be entitled to revoke any
consent previously given, whether or not such Persons continue to be Holders
after such record date. No such consent shall be valid or effective for more
than 90 days after such record date.
After an amendment, supplement or waiver becomes effective, it
shall bind every Securityholder, unless it makes a change described in any of
clauses (1) through (8) of Section 9.2, in which case, the amendment, supplement
or waiver shall bind only each Holder of a Security who has consented to it and
every subsequent Holder of a Security or portion of a Security that evidences
the same debt as the consenting Holder's Security; provided that any such waiver
shall not impair or affect the right of any Holder to receive payment of
principal and premium of and interest on a Security, on or after the respective
dates set for such amounts to become due and payable expressed in such Security,
or to bring suit for the enforcement of any such payment on or after such
respective dates.
SECTION 9.5. Notation on or Exchange of Securities.
If an amendment, supplement or waiver changes the terms of a
Security, the Trustee may require the Holder of the Security to deliver it to
the Trustee or require the Holder to put an appropriate notation on the
Security. The Trustee may place an appropriate notation on the Security about
the changed terms and return it to the Holder. Alternatively, if the Company or
the Trustee so determines, the Company in exchange for the Security shall issue
and the Trustee shall authenticate a new Security that reflects the changed
terms. Any failure to make the appropriate notation or to issue a new Security
shall not affect the validity of such amendment, supplement or waiver.
SECTION 9.6. Trustee to Sign Amendments, Etc.
The Trustee shall execute any amendment, supplement or waiver
authorized pursuant to this Article IX; provided that the Trustee may, but shall
not be obligated to, execute any such amendment, supplement or waiver which
affects the Trustee's own rights, duties or immunities under this Indenture. The
Trustee shall be entitled to receive, and shall be fully protected in relying
upon, an Opinion of Counsel stating that the execution of any amendment,
supplement or waiver authorized pursuant to this Article IX is authorized or
permitted by this Indenture.
ARTICLE X.
[TITLE MISSING(?)]
SECTION 10.1. Security.
(a) At the Release Time (as defined in the Pledge and Escrow
Agreement) which shall occur on or about the Merger Date, the Trustee shall
purchase, for the benefit of the Holders of the Securities a portfolio of
securities initially consisting of Government Securities in such amount as will
be sufficient upon receipt of scheduled interest and/or principal payments of
such Pledged Securities, in the opinion of a nationally recognized firm of
independent public accountants selected by the Company, to provide for payment
in full of the first six scheduled interest payments due on the outstanding
Securities (unless already paid) and shall be held by the Trustee in the Escrow
and Pledge Account pending disposition pursuant to the Pledge and Escrow
Agreement.
(b) Each Holder, by its acceptance of a Security, consents and
agrees to the terms of the Pledge and Escrow Agreement (including, without
limitation, the provisions providing for foreclosure and release of the Pledged
Securities) as the same may be in effect or may be amended from time to time in
accordance with its terms, and authorizes and directs the Trustee to enter into
the Pledge and Escrow Agreement and to perform its respective obligations and
exercise its respective rights thereunder in accordance therewith. The Company
will do or cause to be done all such acts and things as may be necessary or
proper, as the case may be required by the provisions of the Pledge and Escrow
Agreement, to assure and confirm to the Trustee the security interest in the
Pledged Securities contemplated hereby, by the Pledge and Escrow Agreement or
any part thereof, as from time to time constituted, so as to render the same
available for the security and benefit of this Indenture and of the Securities
secured hereby, according to the intent and purposes herein expressed. The
Company shall take, or shall cause to be taken, any and all actions reasonably
required (and any action reasonably requested by the Trustee) to cause the
Pledge and Escrow Agreement to create and maintain, as security for the
obligations of the Company under this Indenture and the Securities, valid and
enforceable first priority liens in and on all the Pledged Securities, in favor
of the Trustee, superior to and prior to the rights of third Persons and subject
to no other Liens. The Trustee shall not be liable for the validity, sufficiency
or priority of the funds or Pledged Securities held under the Pledge and Escrow
Agreement or for the maintenance of the perfection of any funds or securities
held therein.
(c) The release of any Pledged Securities pursuant to the
Pledge and Escrow Agreement will not be deemed to impair the security under this
Indenture in contravention of the provisions hereof if and to the extent the
Pledged Securities are released pursuant to this Indenture and the Pledge and
Escrow Agreement. To the extent applicable, the Company shall cause TIA Section
314(d) relating to the release of property or securities from the Lien and
security interest of the Pledge and Escrow Agreement (other than pursuant to
Section 9(e) and 9(g) thereof) and relating to the substitution therefor of any
property or securities to be subjected to the Lien and security interest of the
Pledge and Escrow Agreement to be complied with. Any certificate or opinion
required by TIA Section 314(d) may be made by an Officer of the Company, except
in cases where TIA Section 314(d) requires that such certificate or opinion be
made by an independent Person, which Person shall be an independent engineer,
appraiser or other expert selected by the Company.
(d) The Trustee, in its sole discretion and without the
consent of the Holders, may, and at the request of the Holders of at least 25%
in aggregate principal amount of Securities then outstanding and upon receipt of
indemnity satisfactory to it shall, on behalf of the Holders, take all actions
it deems necessary or appropriate in order to (i) enforce any of the terms of
the Pledge and Escrow Agreement and (ii) collect and receive any and all amounts
payable in respect of the obligations of the Company thereunder. The Trustee
shall have power to institute and to maintain such suits and proceedings as the
Trustee may deem expedient to preserve or protect its interests and the
interests of the Holders in the Pledged Securities (including power to institute
and maintain suits or proceedings to restrain the enforcement of or compliance
with any legislative or other governmental enactment, rule or order that may be
unconstitutional or otherwise invalid if the enforcement of, or compliance with,
such enactment, rule or order would impair the security interest hereunder or be
prejudicial to the interests of the Holders or of the Trustee).
ARTICLE XI.
RIGHT TO REQUIRE REPURCHASE
SECTION 11.1. Repurchase of Securities at Option of the Holder
Upon a Change of Control.
(a) In the event that a Change of Control has occurred, each
Holder of Securities will have the right, at such Holder's option, pursuant to
an irrevocable and unconditional offer by the Company (the "Change of Control
Offer"), to require the Company to repurchase all or any part (equal to $1,000
principal amount or an integral multiple thereof) of such Holder's Securities,
on a date (the "Change of Control Purchase Date") that is no later than 45
Business Days after the occurrence of such Change of Control at a cash price
(the "Change of Control Purchase Price") equal to 101% of the aggregate
principal amount thereof, together with any accrued and unpaid interest to the
Change of Control Purchase Date. The Change of Control Offer shall be made
within 30 Business Days following a Change of Control and shall remain open for
20 Business Days following its commencement (the "Change of Control Offer
Period"). Upon expiration of the Change of Control Offer Period, the Company
shall purchase all Securities properly tendered in response to the Change of
Control Offer.
(b) In the event that, pursuant to this Section 11.1, the
Company shall be required to commence such an offer to purchase Securities (a
"Change of Control Offer"), the Company shall follow the procedures set forth in
this Section 11.1 as follows:
(1) the Company shall provide the Trustee with notice
of the Change of Control Offer at least 5 Business Days before the commencement
of any Change of Control Offer; and
(2) on or before the commencement of any Change of
Control Offer, the Company or the Trustee (upon the request and at the expense
of the Company) shall send, by first-class mail, a notice to each of the
Holders, which (to the extent consistent with this Indenture) shall govern the
terms of the Change of Control Offer and shall state:
(i) that the Change of Control Offer is
being made pursuant to such notice and this Section 11.1 and that all
Securities, or portions thereof, tendered will be accepted for payment;
(ii) the Change of Control Purchase Price
(including the amount of accrued and unpaid interest), the Change of Control
Purchase Date and the Change of Control Put Date (as defined below);
(iii) that any Security, or portion thereof,
not tendered or accepted for payment will continue to accrue interest;
(iv) that, unless the Company defaults in
depositing cash with the Paying Agent in accordance with the last paragraph of
this clause (b) or such payment is prevented, any Security, or portion thereof,
accepted for payment pursuant to the Change of Control Offer shall cease to
accrue interest after the Change of Control Purchase Date;
(v) that Holders electing to have a
Security, or portion thereof, purchased pursuant to a Change of Control Offer
will be required to surrender the Security, with the form entitled "Option of
Holder to Elect Purchase" on the reverse of the Security completed, to the
Paying Agent (which may not for purposes of this Section 11.1, notwithstanding
anything in this Indenture to the contrary, be the Company or any Affiliate of
the Company) at the address specified in the notice prior to the close of
business on the earlier of (a) the third Business Day prior to the Change of
Control Purchase Date and (b) the third Business Day following the expiration of
the Change of Control Offer (such earlier date being the "Change of Control Put
Date");
(vi) that Holders will be entitled to
withdraw their election, in whole or in part, if the Paying Agent (which may not
for purposes of this Section 11.1, notwithstanding anything in this Indenture to
the contrary, be the Company or any Affiliate of the Company) receives, up to
the close of business (5:00 p.m. New York Time) on the Change of Control Put
Date, a telegram, telex, facsimile transmission or letter setting forth the name
of the Holder, the principal amount of the Securities the Holder is withdrawing
and a statement that such Holder is withdrawing his election to have such
principal amount of Securities purchased; and
(vii) a brief description of the events
resulting in such Change of Control.
On or before the Change of Control Purchase Date, the Company
will (i) accept for payment Securities or portions thereof properly tendered and
not properly withdrawn pursuant to the Change of Control Offer, (ii) deposit
with the Paying Agent cash sufficient to pay the Change of Control Purchase
Price (together with accrued and unpaid interest) of all Securities so tendered
and (iii) deliver to the Trustee Securities so accepted together with an
Officers' Certificate listing the Securities or portions thereof being purchased
by the Company. The Paying Agent promptly will deliver to the Holders of
Securities so accepted payment in an amount equal to the Change of Control
Purchase Price (together with any accrued and unpaid interest), and the Trustee
will promptly authenticate and mail or deliver to such Holders a new Security
equal in principal amount to any unpurchased portion of the Security
surrendered. Any Securities not so accepted will be promptly mailed or delivered
by the Company to the Holder thereof. The Company will announce publicly the
results of the Change of Control Offer on or as soon as practicable after the
Change of Control Purchase Date.
Any Change of Control Offer will be made in compliance with
all applicable laws, rules and regulations, including, if applicable, Regulation
14E under the Exchange Act and the rules thereunder and all other applicable
Federal and state securities laws and the Company may modify a Change of Control
Offer to the extent necessary to effect such compliance.
ARTICLE XII.
[RESERVED]
ARTICLE XIII.
MISCELLANEOUS
SECTION 13.1. TIA Controls.
If any provision of this Indenture limits, qualifies, or
conflicts with the duties imposed by operation of the TIA, the imposed duties,
upon qualification of this Indenture under the TIA, shall control.
SECTION 13.2. Notices.
Any notices or other communications to the Company or the
Trustee required or permitted hereunder shall be in writing, and shall be
sufficiently given if made by hand delivery, by telex, by telecopier or
registered or certified mail, postage prepaid, return receipt requested,
addressed as follows:
if to the Company:
American Cellular Corporation
1336 Basswood Street
Suite F
Schaumburg, Illinois 60173
Attention: Chief Financial Officer
Telecopy: 847-843-9091
if to the Trustee:
Chase Manhattan Bank and Trust Company, National Association
101 California Street, Suite 2725
San Francisco, CA 94111
Attention: Hank Helley
Telecopy: 415-693-8850
Any party by notice to each other party may designate
additional or different addresses as shall be furnished in writing by such
party. Any notice or communication to any party shall be deemed to have been
given or made as of the date so delivered, if personally delivered; when
answered back, if telexed; when receipt is acknowledged, if telecopied; and five
Business Days after mailing if sent by registered or certified mail, postage
prepaid (except that a notice of change of address shall not be deemed to have
been given until actually received by the addressee).
Any notice or communication mailed to a Securityholder shall
be mailed to him by first class mail or other equivalent means at his address as
it appears on the registration books of the Registrar and shall be sufficiently
given to him if so mailed within the time prescribed.
Failure to mail a notice or communication to a Securityholder
or any defect in it shall not affect its sufficiency with respect to other
Securityholders. If a notice or communication is mailed in the manner provided
above, it is duly given, whether or not the addressee receives it.
SECTION 13.3. Communications by Holders with Other Holders.
Securityholders may communicate pursuant to TIA ss. 312(b)
with other Securityholders with respect to their rights under this Indenture or
the Securities. The Company, the Trustee, the Registrar and any other Person
shall have the protection of TIA ss. 312(c).
SECTION 13.4. Certificate and Opinion as to Conditions
Precedent.
Upon any request or application by the Company to the Trustee
to take any action under this Indenture, such Person shall furnish to the
Trustee:
(1) an Officers' Certificate (in form and substance reasonably
satisfactory to the Trustee) stating that, in the opinion of the signers, all
conditions precedent, if any, provided for in this Indenture relating to the
proposed action have been complied with; and
(2) an Opinion of Counsel (in form and substance reasonably
satisfactory to the Trustee) stating that, in the opinion of such counsel, all
such conditions precedent have been complied with.
SECTION 13.5. Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(1) a statement that the Person making such certificate or
opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions contained in
such certificate or opinion are based;
(3) a statement that, in the opinion of such Person, he has
made such examination or investigation as is necessary to enable him to express
an informed opinion as to whether or not such covenant or condition has been
complied with; and
(4) a statement as to whether or not, in the opinion of each
such Person, such condition or covenant has been complied with; provided,
however, that with respect to matters of fact an Opinion of Counsel may rely on
an Officers' Certificate or certificates of public officials.
SECTION 13.6. Rules by Trustee, Paying Agent, Registrar.
The Trustee may make reasonable rules for action by or at a
meeting of Securityholders. The Paying Agent or Registrar may make reasonable
rules for its functions.
SECTION 13.7. Legal Holidays.
A "Legal Holiday" is a Saturday, a Sunday or a day on which
banking institutions in New York, New York or San Francisco, California are
authorized or obligated by law or executive order to close. If a payment date is
a Legal Holiday at such place, payment may be made at such place on the next
succeeding day that is not a Legal Holiday, and no interest shall accrue for the
intervening period.
SECTION 13.8. Governing Law.
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO
CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF NEW YORK. THE COMPANY HEREBY
IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY NEW YORK STATE COURT SITTING IN
THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK OR ANY FEDERAL COURT SITTING IN
THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK IN RESPECT OF ANY SUIT, ACTION
OR PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE AND THE SECURITIES,
AND IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND
UNCONDITIONALLY, JURISDICTION OF THE AFORESAID COURTS. THE COMPANY IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT IT MAY EFFECTIVELY DO SO UNDER APPLICABLE LAW, ANY
OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY
SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT AND ANY CLAIM THAT ANY
SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN
INCONVENIENT FORUM. NOTHING HEREIN SHALL AFFECT THE RIGHT OF THE TRUSTEE OR ANY
SECURITYHOLDER TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO
COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST THE COMPANY IN ANY OTHER
JURISDICTION.
SECTION 13.9. No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another indenture,
loan or debt agreement of the Company or any of its respective Subsidiaries. Any
such indenture, loan or debt agreement may not be used to interpret this
Indenture.
SECTION 13.10. No Recourse against Others.
No direct or indirect employee, stockholder, director or
officer, as such, past, present or future of the Company, or any successor
entity, shall have any personal liability in respect of the obligations of the
Company under the Securities or this Indenture by reason of his or its status as
such stockholder, employee, director or officer. Each Securityholder by
accepting a Security waives and releases all such liability. Such waiver and
release are part of the consideration for the issuance of the Securities.
SECTION 13.11. Successors.
All agreements of the Company in this Indenture and the
Securities shall bind its successor. All agreements of the Trustee in this
Indenture shall bind its successor.
SECTION 13.12. Duplicate Originals.
All parties may sign any number of copies or counterparts of
this Indenture. Each signed copy or counterpart shall be an original, but all of
them together shall represent the same agreement.
SECTION 13.13. Severability.
In case any one or more of the provisions in this Indenture or
in the Securities shall be held invalid, illegal or unenforceable, in any
respect for any reason, the validity, legality and enforceability of any such
provision in every other respect and of the remaining provisions shall not in
any way be affected or impaired thereby, it being intended that all of the
provisions hereof shall be enforceable to the full extent permitted by law.
SECTION 13.14. Table of Contents, Headings, Etc.
The Table of Contents, Cross-Reference Table and headings of
the Articles and the Sections of this Indenture have been inserted for
convenience of reference only, are not to be considered a part hereof and shall
in no way modify or restrict any of the terms or provisions hereof.
SECTION 13.15. Qualification of Indenture.
The Company shall qualify this Indenture under the TIA in
accordance with the terms and conditions of the Registration Rights Agreement
and shall pay all costs and expenses (including attorneys' fees for the Company
and the Trustee) incurred in connection therewith, including, but not limited
to, costs and expenses of qualification of the Indenture and the Securities and
printing this Indenture and the Securities. The Trustee shall be entitled to
receive from the Company any such Officers' Certificates, Opinions of Counsel or
other documentation as it may reasonably request in connection with any such
qualification of this Indenture under the TIA.
SECTION 13.16. Registration Rights.
Certain Holders of the Securities are entitled to certain
registration rights with respect to such Securities pursuant to, and subject to
the terms of, the Registration Rights Agreement.
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed as of the date first written above.
AMERICAN CELLULAR CORPORATION,
a Delaware corporation
By:
-------------------------------------
Name:
Title:
CHASE MANHATTAN BANK AND TRUST COMPANY,
NATIONAL ASSOCIATION, Trustee
By:
-------------------------------------
Name:
Title:
EXHIBIT A
[FORM OF SECURITY]
10 1/2% SERIES [A/B] SENIOR NOTE DUE 2008
No. $______________
CUSIP No.
American Cellular Corporation, a Delaware corporation
(hereinafter called the "Company," which term includes any successors under the
Indenture hereinafter referred to), for value received, hereby promises to pay
to Cede & Co., or registered assigns, the principal sum of $_____________
Dollars, on May 15, 2008.
Interest Payment Dates: May 15 and November 15; commencing
November 15, 1998.
Record Dates: May 1 and November 1.
Reference is made to the further provisions of this Security
on the reverse side, which will, for all purposes, have the same effect as if
set forth at this place.
IN WITNESS WHEREOF, the Company has caused this Instrument to
be duly executed under its corporate seal.
Dated: AMERICAN CELLULAR CORPORATION,
a Delaware corporation
By:
-------------------------------------
Name:
Title:
By:
-------------------------------------
Name:
Title:
<PAGE>
[FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This is one of the Securities described in the
within-mentioned Indenture.
CHASE MANHATTAN BANK AND TRUST COMPANY,
NATIONAL ASSOCIATION, as Trustee
By:
-----------------------------------------
Authorized Signatory
Dated:
AMERICAN CELLULAR CORPORATION
10 1/2% Series [A/B] Senior Note due 2008
Unless and until it is exchanged in whole or in part for
Securities in definitive form, this Security may not be transferred except as a
whole by the Depositary to a nominee of the Depositary or by a nominee of the
Depositary to the Depositary or another nominee of the Depositary or by the
Depositary or any such nominee to a successor Depositary or a nominee of such
successor Depositary. Unless this certificate is presented by an authorized
representative of The Depository Trust Company, a New York corporation, ("DTC"),
to the Company 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.(1)
THE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE 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 SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION AS SET FORTH BELOW. BY ITS ACQUISITION HEREOF, THE
HOLDER (1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS
DEFINED IN RULE 144A UNDER THE SECURITIES ACT ("RULE 144A")) OR (B) IT IS NOT A
U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION, (2)
AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY PRIOR TO THE DATE
WHICH IS TWO YEARS AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE
LAST DATE ON WHICH THE COMPANY OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF
THIS SECURITY (OR ANY PREDECESSOR OF THIS SECURITY) ONLY (A) TO THE COMPANY, (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 INSIDE THE UNITED STATES, 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) OUTSIDE THE UNITED STATES PURSUANT TO OFFERS AND SALE TO NON-U.S.
PERSONS IN AN OFFSHORE TRANSACTION WITHIN THE MEANING OF REGULATION S UNDER THE
SECURITIES ACT OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE COMPANY'S AND
THE TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER (I) PURSUANT TO
CLAUSES (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 CERTIFICATE OF TRANSFER IN THE
FORM APPEARING ON THE OTHER SIDE OF THIS SECURITY IS COMPLETED AND DELIVERED BY
THE TRANSFEROR TO THE TRUSTEE. AS USED HEREIN, THE TERMS "UNITED STATES,"
"OFFSHORE TRANSACTION," AND "U.S. PERSON" HAVE THE RESPECTIVE MEANINGS GIVEN TO
THEM BY REGULATION S UNDER THE SECURITIES ACT.(2)
1. Interest.
American Cellular Corporation, a Delaware corporation
(hereinafter called the "Company," which term includes any successors under the
Indenture hereinafter referred to), promises to pay interest on the principal
amount of this Security at the rate and in the manner specified below. Interest
will accrue at 10 1/2% per annum and will be payable semi-annually in cash on
each May 15 and November 15, commencing November 15, 1998, or if any such day is
not a Business Day on the next succeeding Business Day (each an "Interest
Payment Date") to Holders of record of the Securities at the close of business
on the immediately preceding May 1 or November 1, whether or not a Business Day
(each, a "Record Date").
The Holder of this Series A Security is entitled to the
benefits of the Registration Rights Agreement among the Company and the Initial
Purchasers, dated May 13, 1998, pursuant to which, subject to the terms and
conditions thereof, the Company is obligated to consummate the Exchange Offer
pursuant to which the Holder of this Security shall have the right to exchange
this Security for 10 1/2% Senior Notes due 2008, Series B (herein called the
"Series B Securities") in like principal amount as provided therein. The Series
A Securities and the Series B Securities are together referred to as the
"Securities." The Series A Securities rank pari passu in right of payment with
the Series B Securities.
In the event that (a) the Exchange Offer Registration
Statement is not filed with the Commission on or prior to the 60th calendar day
following the Merger Date, (b) the Exchange Offer Registration Statement has not
been declared effective on or prior to the 120th calendar day following the
Merger Date or (c) the Exchange Offer is not consummated or a Shelf Registration
Statement is not declared effective, in either case, on or prior to the 150th
calendar day following the Merger Date (each such event referred to in clauses
(a) through (c) above, a "Registration Default"), the interest rate borne by the
Series A Securities shall be increased by one-quarter of one percent per annum
upon the occurrence of each Registration Default, which rate (as increased as
aforesaid) will increase by an additional one quarter of one percent each 90-day
period that such additional interest continues to accrue under any such
circumstance, with an aggregate maximum increase in the interest rate equal to
one percent (1%) per annum. Following the cure of all Registration Defaults the
accrual of additional interest will cease and the interest rate will revert to
the original rate. Interest will be computed on the basis of a 360-day year
consisting of twelve 30-day months. Interest shall accrue from the most recent
date to which interest has been paid or, if no interest has been paid, from the
date of issuance. To the extent lawful, the Company shall pay interest on
overdue principal at the rate of the then applicable interest rate on the
Securities; it shall pay interest on overdue installments of interest (without
regard to any applicable grace periods) at the same rate to the extent lawful.
2. Method of Payment.
The Company shall pay interest on the Securities (except
defaulted interest) to the Persons who are the registered Holders at the close
of business on the Record Date immediately preceding the Interest Payment Date.
Holders must surrender Securities to a Paying Agent to collect principal
payments. Except as provided below, the Company shall pay principal and interest
in such coin or currency of the United States of America as at the time of
payment shall be legal tender for payment of public and private debts ("U.S.
Legal Tender"). However, the Company may pay principal and interest by wire
transfer of Federal funds, or interest by its check payable in such U.S. Legal
Tender. The Company may deliver any such interest payment to the Paying Agent or
the Company may mail any such interest payment to a Holder at the Holder's
registered address.
3. Paying Agent and Registrar.
Initially, Chase Manhattan Bank and Trust Company, National
Association (the "Trustee") will act as Paying Agent and Registrar. The Company
may change any Paying Agent, Registrar or co-Registrar without notice to the
Holders. The Company or any of its Subsidiaries may, subject to certain
exceptions, act as Paying Agent, Registrar or co-Registrar.
4. Indenture.
The Company issued the Securities under an Indenture, dated as
of May 13, 1998 (the "Indenture"), between the Company and the Trustee.
Capitalized terms herein are used as defined in the Indenture unless otherwise
defined herein. The terms of the Securities include those stated in the
Indenture and those made part of the Indenture by reference to the Trust
Indenture Act, as in effect on the date of the Indenture. The Securities are
subject to all such terms, and Holders of Securities are referred to the
Indenture and said Act for a statement of them. The Securities are general
obligations of the Company limited in aggregate principal amount to
$285,000,000.
5. Redemption.
The Securities are subject to redemption at any time on or
after May 15, 2003, at the option of the Company, in whole or in part, on not
less then 30 nor more than 60 days' prior notice, in amounts of $1,000 or an
integral multiple thereof, at the following redemption prices (expressed as
percentages of the principal amount), if redeemed during the 12 month period
beginning May 15 of the years indicated below:
Year Redemption Price
---- ----------------
2003 105.250%
2004 103.500%
2005 101.750%
2006 and thereafter 100.000%
In addition, at any time prior to May 15, 2001, the Company,
at its option, may use the net cash proceeds of one or more Public Equity
Offerings or Strategic Equity Offerings in a single transaction or a series of
related transactions to redeem up to an aggregate of 35% of the aggregate
principal amount of Securities originally issued under this Indenture at a
redemption price equal to 110.5% of the aggregate principal amount thereof, plus
accrued and unpaid interest thereon, if any, to the Redemption Date; provided
that at least 65% of the initial aggregate principal amount of Securities
remains outstanding immediately after the occurrence of such redemption. In
order to effect the foregoing redemption, the Company must mail a notice of
redemption no later than 30 days after the closing of the related Public Equity
Offering or Strategic Equity Offering and must consummate such redemption within
60 days of the closing of the Public Equity Offering or Strategic Equity
Offering.
In the case of a partial redemption, the Trustee shall select
the Securities or portions thereof for redemption on a pro rata basis, by lot,
or in such other manner as it deems appropriate and fair. The Securities may be
redeemed in part in multiples of $1,000 only.
Any such redemption will comply with Article III of the
Indenture.
6. Notice of Redemption.
Notice of redemption will be sent by first class mail, at
least 30 days and not more than 60 days prior to the Redemption Date to the
Holder of each Security to be redeemed at such Holder's last address as then
shown upon the registry books of the Registrar.
Notice of a Special Mandatory Redemption will be given upon
seven days' prior written notice to the Holders.
Any notice which relates to a Security to be redeemed in part
only must state the portion of the principal amount to be redeemed and must
state that on and after the date fixed for redemption, upon surrender of such
Security, a new Security or Securities in a principal amount equal to the
unredeemed portion thereof will be issued. On and after the date fixed for
redemption, interest will cease to accrue on the portions of the Securities
called for redemption.
7. Denominations; Transfer; Exchange.
The Securities are in registered form, without coupons, in
denominations of $1,000 and integral multiples of $1,000. A Holder may register
the transfer of, or exchange Securities in accordance with, the Indenture. The
Registrar may require a Holder, among other things, to furnish appropriate
endorsements and transfer documents and to pay any taxes and fees required by
law or permitted by the Indenture. The Registrar need not register the transfer
of or exchange any Securities selected for redemption prior to 15 days after the
notice of redemption.
8. Persons Deemed Owners.
The registered Holder of a Security may be treated as the
owner of it for all purposes.
9. Unclaimed Money.
If money for the payment of principal or interest remains
unclaimed for two years, the Trustee and the Paying Agent(s) will pay the money
back to the Company. After that, all liability of the Trustee and such Paying
Agent(s) with respect to such money shall cease.
10. Discharge Prior to Redemption or Maturity.
Except as set forth in the Indenture, if the Company
irrevocably deposits with the Trustee, in trust, for the benefit of the Holders,
U.S. Legal Tender and Government Securities or a combination thereof, in such
amounts as will be sufficient in the opinion of a nationally recognized firm of
independent public accountants selected by the Trustee, to pay the principal of,
premium, if any, and interest on the Securities to redemption or maturity and
comply with the other provisions of the Indenture relating thereto, the Company
will be discharged from certain provisions of the Indenture and the Securities
(including the financial covenants, but excluding their obligation to pay the
principal of and interest on the Securities). Upon satisfaction of certain
additional conditions set forth in the Indenture, the Company may elect to have
its obligations discharged with respect to outstanding Securities.
11. Amendment; Supplement; Waiver.
Subject to certain exceptions, the Indenture or the Securities
may be amended or supplemented with the written consent of the Holders of at
least a majority in aggregate principal amount of the Securities then
outstanding, and any existing Default or Event of Default or compliance with any
provision may be waived with the consent of the Holders of a majority in
aggregate principal amount of the Securities then outstanding. Without notice to
or consent of any Holder, the parties thereto may amend or supplement the
Indenture or the Securities to, among other things, cure any ambiguity, defect
or inconsistency, or make any other change that does not adversely affect the
rights of any Holder of a Security.
12. Restrictive Covenants.
The Indenture imposes certain limitations on the ability of
the Company and its Restricted Subsidiaries to, among other things, incur
additional Indebtedness and Disqualified Capital Stock, pay dividends or make
certain other restricted payments, enter into certain transactions with
Affiliates, incur Liens, sell assets, merge or consolidate with any other Person
or transfer (by lease, assignment or otherwise) substantially all of the
properties and assets of the Company. The limitations are subject to a number of
important qualifications and exceptions. The Company must periodically report to
the Trustee on compliance with such limitations.
13. Repurchase at Option of Holder; Special Mandatory
Redemption.
(a) If there is a Change of Control, the Company shall be
required to offer to purchase on the Change of Control Purchase Date all
outstanding Securities at a purchase price equal to 101% of the principal amount
thereof, together with any accrued and unpaid interest, to the Change of Control
Purchase Date. Holders of Securities will receive a Change of Control Offer from
the Company prior to any related Change of Control Purchase Date and may elect
to have such Securities purchased by properly tendering such Securities pursuant
to the Change of Control Offer.
(b) The Indenture imposes certain limitations on the ability
of the Company and its Restricted Subsidiaries to sell assets. In the event the
proceeds from a permitted Asset Sale exceed certain amounts, as specified in the
Indenture, the Company will be required either to reinvest the proceeds of such
Asset Sale as described in the Indenture or to make an offer to purchase each
Holder's Securities at 100% of the principal amount thereof, plus accrued
interest, if any, to the purchase date.
(c) If the consummation of the Merger has not occurred on or
prior to the earlier to occur of (i) termination of the Merger Agreement or (ii)
150 days after the Issue Date if the Escrow Funds have not been released by that
time (provided that the 150-day period may be extended at the option of the
Company up to an additional 120 days if the Extension Condition has been
satisfied) the Company is required to purchase all of the outstanding Securities
with the Escrow Funds, at a redemption price equal to 101% of the principal
amount thereof, plus accrued and unpaid interest, if any, to the date of
redemption.
14. Successors.
When a successor assumes all the obligations of its
predecessor under the Securities and the Indenture, the predecessor will be
released from those obligations.
15. Defaults and Remedies.
If an Event of Default occurs and is continuing (other than as
Event of Default relating to certain events of bankruptcy, insolvency or
reorganization), then in every such case, unless the principal of all of the
Securities shall have already become due and payable, either the Trustee or the
Holders of 25% in aggregate principal amount of Securities then outstanding may
declare all the Securities to be due and payable immediately in the manner and
with the effect provided in the Indenture. The Holders of Securities may not
enforce the Indenture or the Securities except as provided in the Indenture. The
Trustee may require indemnity satisfactory to it before it enforces the
Indenture or the Securities. Subject to certain limitations, Holders of a
majority in aggregate principal amount of the Securities then outstanding may
direct the Trustee in its exercise of any trust or power. The Trustee may
withhold from Holders of Securities notice of any continuing Default or Event of
Default (except a Default in payment of principal or interest), if it determines
that withholding notice is in their interest.
16. Collateral.
The payment of the Securities will be secured by Pledged
Securities held in an account to secure and fund the first six scheduled
interest payments on the Securities. Once the first six scheduled interest
payments are made, the Securities will be unsecured.
17. Trustee Dealings with Company.
The Trustee under the Indenture, in its individual or any
other capacity, may make loans to, accept deposits from, perform investment
advisory or other management services and perform services for the Company or
its Affiliates, and may otherwise deal with the Company or its Affiliates as if
it were not the Trustee.
18. No Recourse Against Others.
No stockholder, director, officer or employee, as such, past,
present or future, of the Company or any successor corporation shall have any
personal liability in respect of the obligations of the Company under the
Securities or the Indenture by reason of his or its status as such stockholder,
director, officer or employee. Each Holder of a Security by accepting a Security
waives and releases all such liability. The waiver and release are part of the
consideration for the issuance of the Securities.
19. Authentication.
This Security shall not be valid until the Trustee or
authenticating agent signs the certificate of authentication on the other side
of this Security.
20. Abbreviations and Defined Terms.
Customary abbreviations may be used in the name of a Holder of
a Security or an assignee, such as: TEN COM (= tenants in common), TEN ENT (=
tenants by the entireties), JT TEN (= joint tenants with right of survivorship
and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts
to Minors Act).
21. CUSIP Numbers.
Pursuant to a recommendation promulgated by the Committee on
Uniform Security Identification Procedures, the Company will cause CUSIP numbers
to be printed on the Securities as a convenience to the Holders of the
Securities. No representation is made as to the accuracy of such numbers as
printed on the Securities and reliance may be placed only on the other
identification numbers printed hereon.
22. Additional Rights of Holders of Transfer Restricted
Securities.
In addition to the rights provided to Holders of Securities
under the Indenture, Holders of Securities shall have all the rights set forth
in the Registration Rights Agreement.
[FORM OF] ASSIGNMENT
I or we assign this Security to
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Print or type name, address and zip code of assignee)
Please insert Social Security or other identifying number of
assignee __________ _____________________ and irrevocably appoint __________
agent to transfer this Security on the books of the Company. The agent may
substitute another to act for him.
Dated:_________________________ Signed:______________________________
- --------------------------------------------------------------------------------
(Sign exactly as name appears on the other side of this Security)
Signature(s) must be guaranteed by an eligible guarantor
institution (banks, stock brokers, savings and loan associations and credit
unions with membership in an approved signature guarantee medallion program)
pursuant to Securities and Exchange Commission Rule 17Ad-15.
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the
Company pursuant to Section 4.14 or Article XI of the Indenture, check the
appropriate box: |_| Section 4.14 |_| Article XI
If you want to elect to have only part of this Security
purchased by the Company pursuant to Section 4.14 or Article XI of the
Indenture, as the case may be, state the principal amount you want to be
purchased: $__________
Dated:_________________________ Signed:______________________________
- --------------------------------------------------------------------------------
(Sign exactly as name appears on the other side of this Security)
SCHEDULE OF EXCHANGES OF DEFINITIVE SECURITIES(3)
The following exchanges of a part of this Global Security for
Definitive Securities have been made:
<TABLE>
Principal Amount of Signature of
Amount of decrease Amount of increase this Global authorized officer
in Principal in Principal Amount Security following of Trustee or
Amount of this of this Global such decrease (or Securities
Date of Exchange Global Security Security increase) Custodian
- ---------------------- -------------------- --------------------- --------------------- --------------------
<S> <C> <C> <C> <C>
</TABLE>
EXHIBIT B
REGULATION S CERTIFICATE
(For transfers pursuant to ss. 2.15(a)(i) of the Indenture)
Chase Manhattan Bank and Trust Company,
National Association
101 California Street
Suite 2725
San Francisco, California 94111
Re: 10 1/2% Senior Notes due 2008 of American Cellular
Corporation (the "Securities")
Reference is made to the Indenture, dated as of May 13, 1998
(the "Indenture"), between American Cellular Corporation, a Delaware corporation
(the "Company"), and Chase Manhattan Bank and Trust Company, National
Association, as Trustee. Terms used herein and defined in the Indenture or in
Regulation S or Rule 144 under the U.S. Securities Act of 1933 (the "Securities
Act") are used herein as so defined.
This certificate relates to US$____________ principal amount
of Securities, which are evidenced by the following certificate(s) (the
"Specified Securities"):
CUSIP No(s).____________________________________
CERTIFICATE No(s).______________________________
The person in whose name this certificate is executed below
(the "Undersigned") hereby certifies that either (i) it is the sole beneficial
owner of the Specified Securities or (ii) it is acting on behalf of all the
beneficial owners of the Specified Securities and is duly authorized by them to
do so. Such beneficial owner or owners are referred to herein collectively as
the "Owner." The Specified Securities are represented by a Global Security and
are held through the Depositary or an Agent Member in the name of the
Undersigned, as or on behalf of the Owner.
The Owner has requested that the Specified Securities be
transferred to a person (the "Transferee") who will take delivery in the form of
a Regulation S Global Security. In connection with such transfer, the Owner
hereby certifies that, unless such transfer is being effected pursuant to an
effective registration statement under the Securities Act, it is being effected
in accordance with Rule 904 or Rule 144 under the Securities Act and with all
applicable securities laws of the states of the United States and other
jurisdictions. Accordingly, the Owner hereby further certifies as follows:
(1) Rule 904 Transfers. If the transfer is being effected in
accordance with Rule 904:
(A) the Owner is not a distributor of the Securities,
an affiliate of the Company or any such distributor or a person acting
on behalf of any of the foregoing;
(B) the offer of the Specified Securities was not
made to a person in the United States;
(C) either:
(i) at the time the buy order was
originated, the Transferee was outside the United States or
the Owner and any person acting on its behalf reasonably
believed that the Transferee was outside the United States, or
(ii) the transaction is being executed in,
on or through the facilities of the Eurobond market, as
regulated by the Association of International Bond Dealers, or
another designated offshore securities market and neither the
Owner nor any person acting on its behalf knows that the
transaction has been prearranged with a buyer in the United
States;
(D) no directed selling efforts have been made in the
United States by or on behalf of the Owner or any affiliate thereof;
(E) if the Owner is a dealer in securities or has
received a selling concession, fee or other remuneration in respect of
the Specified Securities, and the transfer is to occur during the
Restricted Period, then the requirements of Rule 904(c)(1) have been
satisfied; and
(F) the transaction is not part of a plan or scheme
to evade the registration requirements of the Securities Act.
(2) Rule 144 Transfers. If the transfer is being effected
pursuant to Rule 144:
(A) the transfer is occurring after a holding period
of at least one year (computed in accordance with paragraph (d) of Rule
144) has elapsed since the Specified Securities were last acquired from
the Company or from an affiliate of the Company, whichever is later,
and is being effected in accordance with the applicable amount, manner
of sale and notice requirements of Rule 144; or
(B) the transfer is occurring after a holding period
of at least two years has elapsed since the Specified Securities were
last acquired from the Company or from an affiliate of the Company,
whichever is later, and the Owner is not, and during the preceding
three months has not been, an affiliate of the Company.
This certificate and the statements contained herein are made
for your benefit and the benefit of the Company and the Initial Purchasers.
Dated: (Print the name of the Undersigned, as such
term is defined in the second paragraph of
this certificate.)
By:
---------------------------------------
Name:
Title:
(If the Undersigned is a corporation,
partnership or fiduciary, the title of the
person signing on behalf of the
Undersigned must be stated.)
EXHIBIT C
RESTRICTED SECURITIES CERTIFICATE
(For transfers pursuant to ss. 2.15(a)(ii) of the Indenture)
Chase Manhattan Bank and Trust Company,
National Association
101 California Street
Suite 2725
San Francisco, California 94111
Re: 10 1/2% Senior Notes due 2008 of American Cellular
Corporation (the "Securities")
Reference is made to the Indenture, dated as of May 13, 1998
(the "Indenture"), between American Cellular Corporation, a Delaware corporation
(the "Company") and Chase Manhattan Bank and Trust Company, National
Association, as Trustee. Terms used herein and defined in the Indenture or in
Rule 144A or Rule 144 under the U.S. Securities Act of 1933 (the "Securities
Act") are used herein as so defined.
This certificate relates to US$_____________ principal amount
of Securities, which are evidenced by the following certificate(s) (the
"Specified Securities"):
CUSIP No(s)._______________________________________________
ISIN No(s). If any.________________________________________
CERTIFICATE No(s)._________________________________________
The person in whose name this certificate is executed below
(the "Undersigned") hereby certifies that either (i) it is the sole beneficial
owner of the Specified Securities or (ii) it is acting on behalf of all the
beneficial owners of the Specified Securities and is duly authorized by them to
do so. Such beneficial owner or owners are referred to herein collectively as
the "Owner." The Specified Securities are represented by a Global Security and
are held through the Depositary or an Agent Member in the name of the
Undersigned, as or on behalf of the Owner.
The Owner has requested that the Specified Securities be
transferred to a person (the "Transferee") who will take delivery in the form of
a Restricted Security. In connection with such transfer, the Owner hereby
certifies that, unless such transfer is being effected pursuant to an effective
registration statement under the Securities Act, it is being effected in
accordance with Rule 144A or Rule 144 under the Securities Act and all
applicable securities laws of the states of the United States and other
jurisdictions.
Accordingly, the Owner hereby further certifies as follows:
(1) Rule 144A Transfers. If the transfer is being effected in
accordance with Rule 144A:
(A) the Specified Securities are being transferred to
a person that the Owner and any person acting on its behalf
reasonably believe is a "qualified institutional buyer" within
the meaning of Rule 144A, acquiring for its own account or for
the account of a qualified institutional buyer; and
(B) the Owner and any person acting on its behalf
have taken reasonable steps to ensure that the Transferee is
aware that the Owner may be relying on Rule 144A in connection
with the transfer; and
(2) Rule 144 Transfers. If the transfer is being effected
pursuant to Rule 144:
(A) the transfer is occurring after a holding period
of at least one year (computed in accordance with paragraph
(d) of Rule 144) has elapsed since the Specified Securities
were last acquired from the Company or from an affiliate of
the Company, whichever is later, and is being effected in
accordance with the applicable amount, manner of sale and
notice requirements of Rule 144; or
(B) the transfer is occurring after a holding period
of at least two years has elapsed since the Specified
Securities were last acquired from the Company or from an
affiliate of the Company, whichever is later, and the Owner is
not, and during the preceding three months has not been, an
affiliate of the Company.
This certificate and the statements contained herein are made
for your benefit and the benefit of the Company and the Initial Purchasers.
Dated: (Print the name of the Undersigned, as such
term is defined in the second paragraph of
this certificate.)
By:
---------------------------------------
Name:
Title:
(If the Undersigned is a corporation,
partnership or fiduciary, the title of the
person signing on behalf of the
Undersigned must be stated.)
EXHIBIT D
UNRESTRICTED SECURITIES CERTIFICATE
(For removal of Securities Act Legends pursuant to ss. 2.15(b))
Chase Manhattan Bank and Trust Company,
National Association
101 California Street
Suite 2725
San Francisco, California 94111
Re: 10 1/2% Senior Notes due 2008 of American Cellular
Corporation (the "Securities")
Reference is made to the Indenture, dated as of May 13, 1998
(the "Indenture"), between American Cellular Corporation, a Delaware corporation
(the "Company"), and Chase Manhattan Bank and Trust Company, National
Association, as Trustee. Terms used herein and defined in the Indenture or in
Rule 144 under the U.S. Securities Act of 1933 (the "Securities Act") are used
herein as so defined.
This certificate relates to US$_____________ principal amount
of Securities, which are evidenced by the following certificate(s) (the
"Specified Securities"):
CUSIP No(s). ___________________________
CERTIFICATE No(s). _____________________
The person in whose name this certificate is executed below
(the "Undersigned") hereby certifies that either (i) it is the sole beneficial
owner of the Specified Securities or (ii) it is acting on behalf of all the
beneficial owners of the Specified Securities and is duly authorized by them to
do so. Such beneficial owner or owners are referred to herein collectively as
the "Owner". If the Specified Securities are represented by a Global Security,
they are held through the Depositary or an Agent Member in the name of the
Undersigned, as or on behalf of the Owner. If the Specified Securities are not
represented by a Global Security, they are registered in the name of the
Undersigned, as or on behalf of the Owner.
The Owner has requested that the Specified Securities be
exchanged for Securities bearing no Private Placement Legend pursuant to Section
2.15(b) of the Indenture. In connection with such exchange, the Owner hereby
certifies that the exchange is occurring after a holding period of at least two
years (computed in accordance with paragraph (d) of Rule 144) has elapsed since
the Specified Securities were last acquired from the Company or from an
affiliate of the Company, whichever is later, and the Owner is not, and during
the preceding three months has not been, an affiliate of the Company. The Owner
also acknowledges that any future transfers of the Specified Securities must
comply with all applicable securities laws of the states of the United States
and other jurisdictions.
This certificate and the statements contained herein are made
for your benefit and the benefit of the Company and the Initial Purchasers.
Dated: (Print the name of the Undersigned, as such
term is defined in the second paragraph of
this certificate.)
By:
---------------------------------------
Name:
Title:
(If the Undersigned is a corporation,
partnership or fiduciary, the title of the
person signing on behalf of the
Undersigned must be stated.)
EXHIBIT E
Telephone Number(s) for Call-Backs and
Person(s) Designated to Confirm Funds Transfer Instructions
If to the Company:
Name Telephone Number
1. John Fujii (847) 843-9081
2. Brian McTernan (847) 843-9081
Execution Copy
===============================================================================
AMERICAN CELLULAR CORPORATION
Issuer,
and
CHASE MANHATTAN BANK AND TRUST COMPANY,
NATIONAL ASSOCIATION
Trustee
---------------------------
INDENTURE
Dated as of May 13, 1998
---------------------------
$285,000,000
10 1/2% Senior Notes due 2008
===============================================================================
TABLE OF CONTENTS
Page
----
ARTICLE I. DEFINITIONS AND INCORPORATION BY REFERENCE....................1
SECTION 1.1. Definitions..............................................1
SECTION 1.2. Incorporation by Reference of TIA.......................21
SECTION 1.3. Rules of Construction...................................21
ARTICLE II. THE SECURITIES...............................................22
SECTION 2.1. Form and Dating.........................................22
SECTION 2.2. Execution and Authentication............................22
SECTION 2.3. Registrar and Paying Agent..............................23
SECTION 2.4. Paying Agent to Hold Assets in Trust....................24
SECTION 2.5. Securityholder Lists....................................24
SECTION 2.6. [INTENTIONALLY OMITTED].................................24
SECTION 2.7. Replacement Securities..................................24
SECTION 2.8. Outstanding Securities..................................25
SECTION 2.9. Treasury Securities.....................................25
SECTION 2.10. Temporary Securities....................................25
SECTION 2.11. Cancellation............................................26
SECTION 2.12. Defaulted Interest......................................26
SECTION 2.13. Registration, Registration of Transfer and Exchange.....27
SECTION 2.14. Book Entry Provisions for Global Securities.............28
SECTION 2.15. Special Transfer and Exchange Provisions................30
SECTION 2.16. CUSIP Numbers...........................................32
ARTICLE III. REDEMPTION...................................................33
SECTION 3.1. Rights of Redemption....................................33
SECTION 3.2. Notices to Trustee......................................33
SECTION 3.3. Selection of Securities to Be Redeemed..................34
SECTION 3.4. Notice of Redemption....................................34
SECTION 3.5. Effect of Notice of Redemption..........................35
SECTION 3.6. Deposit of Redemption Price.............................35
SECTION 3.7. Securities Redeemed in Part.............................36
SECTION 3.8. Special Mandatory Redemption............................36
ARTICLE IV. COVENANTS....................................................37
SECTION 4.1. Payment of Securities...................................37
SECTION 4.2. Maintenance of Office or Agency.........................37
SECTION 4.3. Limitation on Restricted Payments.......................37
SECTION 4.4. Corporate Existence.....................................39
SECTION 4.5. Payment Of Taxes And Other Claims.......................39
SECTION 4.6. Maintenance of Properties and Insurance.................39
SECTION 4.7. Compliance Certificate; Notice of Default...............40
SECTION 4.8. Provision of Financial Statements.......................40
SECTION 4.9. [INTENTIONALLY OMITTED].................................41
SECTION 4.10. Limitation on Transactions with Related Persons.........41
SECTION 4.11. Limitation on Incurrence of Additional Indebtedness.....42
SECTION 4.12. Limitations on Restricting Subsidiary Dividends.........44
SECTION 4.13. Limitations on Liens....................................45
SECTION 4.14. Limitation on Asset Sales and Sales of
Subsidiary Stock......................................45
SECTION 4.15. Waiver of Stay, Extension or Usury Laws.................50
SECTION 4.16. INTENTIONALLY OMITTED...................................50
SECTION 4.17. INTENTIONALLY OMITTED...................................50
SECTION 4.18. Limitation on Lines of Business.........................50
SECTION 4.19. Restriction on Sale and Issuance of
Subsidiary Stock......................................50
SECTION 4.20. Limitation on Issuances of Guarantee of Indebtedness....51
ARTICLE V. SUCCESSOR CORPORATION........................................51
SECTION 5.1. Limitation on Merger, Sale or Consolidation.............51
SECTION 5.2. Successor Corporation Substituted.......................52
ARTICLE VI. EVENTS OF DEFAULT AND REMEDIES...............................52
SECTION 6.1. Events of Default.......................................52
SECTION 6.2. Acceleration of Maturity Date; Rescission and
Annulment.............................................54
SECTION 6.3. Collection of Indebtedness and Suits for
Enforcement by Trustee................................55
SECTION 6.4. Trustee May File Proofs of Claim........................55
SECTION 6.5. Trustee May Enforce Claims Without Possession
of Securities.........................................56
SECTION 6.6. Priorities..............................................56
SECTION 6.7. Limitation on Suits.....................................57
SECTION 6.8. Unconditional Right of Holders to Receive Principal,
Premium and Interest..................................57
SECTION 6.9. Rights and Remedies Cumulative..........................57
SECTION 6.10. Delay or Omission Not Waiver............................58
SECTION 6.11. Control by Holders......................................58
SECTION 6.12. Waiver of Past Default..................................58
SECTION 6.13. Undertaking for Costs...................................58
SECTION 6.14. Restoration of Rights and Remedies......................59
ARTICLE VII. TRUSTEE......................................................59
SECTION 7.1. Duties of Trustee.......................................59
SECTION 7.2. Rights of Trustee.......................................60
SECTION 7.3. Individual Rights of Trustee............................61
SECTION 7.4. Trustee's Disclaimer....................................61
SECTION 7.5. Notice of Default.......................................62
SECTION 7.6. Reports by Trustee to Holders...........................62
SECTION 7.7. Compensation and Indemnity..............................62
SECTION 7.8. Replacement of Trustee..................................63
SECTION 7.9. Successor Trustee by Merger, Etc........................64
SECTION 7.10. Eligibility; Disqualification...........................64
SECTION 7.11. Preferential Collection of Claims against Company.......64
SECTION 7.12. Wire Transfers and Investments..........................64
ARTICLE VIII. LEGAL DEFEASANCE AND COVENANT DEFEASANCE.....................65
SECTION 8.1. Option to Effect Legal Defeasance or
Covenant Defeasance...................................65
SECTION 8.2. Legal Defeasance and Discharge..........................65
SECTION 8.3. Covenant Defeasance.....................................65
SECTION 8.4. Conditions to Legal or Covenant Defeasance..............66
SECTION 8.5. Deposited U.S. Legal Tender and Government
Securities to be Held in Trust; Other
Miscellaneous Provisions..............................67
SECTION 8.6. Repayment to the Company................................68
SECTION 8.7. Reinstatement...........................................68
ARTICLE IX. AMENDMENTS, SUPPLEMENTS AND WAIVERS..........................68
SECTION 9.1. Supplemental Indentures Without Consent of Holders......68
SECTION 9.2. Amendments, Supplemental Indentures and
Waivers with Consent of Holders.......................69
SECTION 9.3. Compliance with TIA.....................................70
SECTION 9.4. Revocation and Effect of Consents.......................70
SECTION 9.5. Notation on or Exchange of Securities...................71
SECTION 9.6. Trustee to Sign Amendments, Etc.........................71
ARTICLE X. [TITLE MISSING(?)]...........................................72
SECTION 10.1. Security................................................72
ARTICLE XI. RIGHT TO REQUIRE REPURCHASE..................................73
SECTION 11.1. Repurchase of Securities at Option of the Holder
Upon a Change of Control..............................73
ARTICLE XII. [RESERVED]...................................................75
ARTICLE XIII. MISCELLANEOUS................................................75
SECTION 13.1. TIA Controls............................................75
SECTION 13.2. Notices.................................................75
SECTION 13.3. Communications by Holders with Other Holders............76
SECTION 13.4. Certificate and Opinion as to Conditions Precedent......76
SECTION 13.5. Statements Required in Certificate or Opinion...........76
SECTION 13.6. Rules by Trustee, Paying Agent, Registrar...............77
SECTION 13.7. Legal Holidays..........................................77
SECTION 13.8. Governing Law...........................................77
SECTION 13.9. No Adverse Interpretation of Other Agreements...........78
SECTION 13.10. No Recourse against Others..............................78
SECTION 13.11. Successors..............................................78
SECTION 13.12. Duplicate Originals.....................................78
SECTION 13.13. Severability............................................78
SECTION 13.14. Table of Contents, Headings, Etc........................78
SECTION 13.15. Qualification of Indenture..............................79
SECTION 13.16. Registration Rights.....................................79
SIGNATURES....................................................................97
EXHIBIT A - FORM OF SECURITY.................................................A-1
EXHIBIT B - REGULATION S CERTIFICATE.........................................B-1
EXHIBIT C - RESTRICTED SECURITIES CERTIFICATE................................C-1
EXHIBIT D - UNRESTRICTED SECURITIES CERTIFICATE..............................D-1
EXHIBIT E - TELEPHONE NUMBER(S) FOR CALL-BACKS...............................E-1
CROSS-REFERENCE TABLE
TIA Section Indenture Section
- ----------- -----------------
310(a)(1) 7.10
(a)(2) 7.10
(a)(3) N.A.
(a)(4) N.A.
(a)(5) 7.10
(b) 7.8; 7.10
(c) N.A.
311(a) 7.11
(b) 7.11
(c) N.A.
312(a) 2.5
(b) 13.3
(c) 13.3
313(a) 7.6
(b)(1) 7.6
(b)(2) 7.6
(c) 7.6; 13.2
(d) 7.6
314(a) 4.8; 13.2
(b) N.A.
(c)(1) 2.2; 7.2; 13.4
(c)(2) 7.2; 13.4
(c)(3) N.A.
(d) N.A.
(e) 13.5
(f) N.A.
315(a) 7.1(b)
(b) 7.5; 7.6; 13.2
(c) 7.1(a)
(d) 2.8; 6.11; 7.1(b)(c)
(e) 6.13
316(a) (last sentence) 2.9
(a)(1)(A) 6.11
(a)(1)(B) 6.12
(a)(2) N.A.
(b) 6.12; 6.8; 6.7
317(a)(1) 6.3
(a)(2) 6.4
(b) 2.4
318(a) 13.1
N.A. means not applicable.
Note:This Cross-Reference Table shall not, for any purpose, be deemed to be a
part of the Indenture.
- --------
(1) This paragraph should only be added if the Security is issued in global
form.
(2) This Private Placement Legend should appear on the face of any Series A
Securities authenticated and delivered hereunder unless and until (i) an Initial
Security is sold under an effective Registration Statement or (ii) an Initial
Security is exchanged for a Series B Security in connection with an effective
Registration Statement, in each case pursuant to the Registration Rights
Agreement. (3) This schedule should only be added if the Security is issued in
global form.
Exhibit (c)(2)
[LETTERHEAD OF SPECTRUM EQUITY INVESTORS, L.P.]
March 6, 1998
PriCellular Corporation
711 Westchester Avenue
White Plains, NY 10604
Dear Sirs:
This will confirm that we hereby agree to be bound by Section 4.05 of
the Voting Agreement dated as of the date hereof by and among American Cellular
Corporation, and the holders of PriCellular Corporation ("PriCellular") but only
with respect to the shares of PriCellular Series A Preferred Stock we own.
SPECTRUM EQUITY INVESTORS, L.P.
By: Spectrum Equity Associates, L.P.
its General Partner
By: /s/ Brion Applegate
---------------------------------
Name: Brion Applegate
Title: General Partner
Exhibit (c)(3)
CONSENT AND WAIVER
CONSENT AND WAIVER dated as of March 6, 1998 by PRICELLULAR
CORPORATION, a Delaware corporation (the "Company"), and AT&T WIRELESS
SERVICES, INC., a Delaware corporation, formerly known as McCaw Cellular
Communications, Inc. ("AWS").
W I T N E S S E T H :
WHEREAS, the parties hereto have entered into a stockholders
agreement dated as of April 28, 1994 and a Consent and Waiver dated as of
November 15, 1994, an Amendment dated as of July 28, 1995, a Consent and
Waiver dated as of August 18, 1995, a Consent and Waiver dated as of September
21, 1995 and a Consent and Waiver dated as of December 28, 1995 (as so
amended, the "Agreement");
WHEREAS, the Company has entered into an Agreement and Plan of
Merger (the "Merger Agreement") dated as of March 6, 1998 with American
Cellular Corporation, a Delaware corporation ("Buyer"), which provides, among
other things, for the merger (the "Merger") of Buyer with and into the Company,
with the result that the Company will be the surviving corporation; and
WHEREAS, pursuant to Section 4 of the Agreement the Company may not
merge into any other corporation without the prior written consent of AWS;
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1. Consent to Merger and Waiver of Rights. (a) AWS hereby
waives any and all rights AWS may have arising under Section 4 of the
Agreement in connection with the Merger as set forth in the Merger Agreement.
(b) This Consent and Waiver will only be effective if (i) pursuant to the
terms of the Merger all outstanding shares of Class A Common Stock and Class B
Common Stock of the Company will be converted into the right to receive an
amount in cash equal to not less than $14.00 per share; (ii) there is no
material change to the Merger Agreement and (iii) the beneficial owners of
Buyer's equity securities at closing are Spectrum Equity Investors, Buyer's
management, financial institutions and other entities that are pooled
investment partnerships or similar entities.
(c) This Consent and Waiver shall not be deemed to be an agreement by
AWS to vote its shares in favor of the proposed Merger.
SECTION 2. Governing Law. THIS CONSENT AND WAIVER SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 3. Counterparts; Effectiveness. This Consent and Waiver
may be signed in any number of counterparts, each of which shall be an
original, with the same effect as if the signatures thereto and hereto were
upon the same instrument. This Consent and Waiver shall become effective as
of the date hereof when each party hereto shall have received a duly executed
counterpart hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Consent and
Waiver to be duly executed as of the date first above written.
PRICELLULAR CORPORATION
By /s/ Steven Price
------------------------------
Name: Steven Price
Title: Chief Executive Officer
AT&T WIRELESS SERVICES, INC.
By /s/ Mufit Cinali
------------------------------
Name: Mufit Cinali
Title: Financial Vice President
