As filed with the Securities and Exchange Commission on September 24, 1999
Registration No. 333-
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- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-4
REGISTRATION STATEMENT
Under
The Securities Act of 1933
---------------
CROWN CASTLE INTERNATIONAL CORP.
(Exact name of Registrant as specified in its charter)
Delaware 4899 76-0470458
(State or other (Primary Standard Industrial (I.R.S. Employer
jurisdiction of Classification Number) Identification Number)
incorporation or
organization)
---------------
Mr. Charles C. Green, III
510 Bering Drive
Suite 500
Houston, Texas 77057
(713) 570-3000
(Address, including zip code, and telephone number, including area code, of
Registrant's principal executive offices)
---------------
Copies to:
Stephen L. Burns, Esq.
Cravath, Swaine & Moore
825 Eighth Avenue
New York, New York 10019
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Approximate date of commencement of proposed sale to the public: As soon as
practicable after this Registration Statement becomes effective.
If the securities being registered on this Form are being offered in
connection with the formation of a holding company and there is compliance with
General Instruction G, check the following box. [_]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
CALCULATION OF REGISTRATION FEE
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Proposed
Title of Each Class of Maximum Proposed Maximum
Securities to be Amount to be Offering Price Aggregate Amount of
Registered Registered Per Unit Offering Price(1) Registration Fee(2)
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9 1/2% Senior Notes Due
2011................... $125,000,000 100% $125,000,000 $34,750
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11 1/4% Senior Discount
Notes Due 2011......... $260,000,000 58.829% $152,954,939 $42,521.47(3)
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(1) Estimated solely for the purpose of calculating the registration fee under
Rule 457 of the Securities Act of 1933.
(2) Calculated pursuant to Rule 457(f)(2).
(3) The 11 1/4% Senior Discount Notes Due 2011 were initially sold at a
substantial discount from their principal amount at maturity. The
registration fee with respect to the 11 1/4% Senior Discount Notes Due 2011
was calculated based on its approximate accreted value as of September 24,
1999.
---------------
The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant
shall file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Securities and Exchange Commission, acting
pursuant to said Section 8(a), may determine.
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Subject to Completion
September 24, 1999
PROSPECTUS
CROWN
[LOGO] CASTLE
INTERNATIONAL
CROWN CASTLE INTERNATIONAL CORP.
-------------
OFFER TO EXCHANGE
$125,000,000 PRINCIPAL $260,000,000 PRINCIPAL AMOUNT AT MATURITY
AMOUNT OUTSTANDING OUTSTANDING
9 1/2% SENIOR NOTES DUE 2011 11 1/4% SENIOR DISCOUNT NOTES DUE 2011
FOR
$260,000,000 PRINCIPAL AMOUNT AT MATURITY
FOR 11 1/4% SENIOR DISCOUNT NOTES DUE 2011
$125,000,000 PRINCIPAL
AMOUNT
9 1/2% SENIOR NOTES DUE 2011
The new 9 1/2% Senior Notes Due 2011 and new 11 1/4% Senior Discount Notes
Due 2011, which will be free of the transfer restrictions that apply to the
outstanding, unregistered 9 1/2% Senior Notes Due 2011 and 11 1/4% Senior
Discount Notes Due 2011 you currently hold will have substantially the same
terms as these outstanding old notes. This offer will expire at 5:00 p.m., New
York City time, on , 1999, unless we extend it. The new notes will not
trade on any established exchange.
-------------
Please see "Risk Factors" beginning on page 11 for a discussion of certain
factors you should consider in connection with the exchange offer.
-------------
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of the new notes or determined if this
prospectus is truthful or complete. Any representation to the contrary is a
criminal offense.
-------------
The date of this prospectus is , 1999.
The information in this prospectus is not complete and may be changed. We may
not sell these securities until the registration statement filed with the
Securities and Exchange Commission relating to these securities is effective.
This prospectus is not an offer to sell these securities and it is not
soliciting an offer to buy these securities in any state where the offer or
sale is not permitted.
TABLE OF CONTENTS
Page
----
Where You Can Find More
Information........................ ii
Incorporation of Documents by
Reference.......................... ii
Prospectus Summary.................. 1
Risk Factors........................ 11
Use of Proceeds..................... 21
Selected Financial and Other Data of
CCIC............................... 22
Page
----
The Exchange Offer............... 25
Description of Notes............. 33
Certain U.S. Federal Income Tax
Considerations................. 74
Plan of Distribution............. 75
Legal Matters.................... 76
Experts.......................... 76
Certain Currency Translations.... 76
i
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and other
information with the SEC. Our SEC filings and other information regarding
issuers are available to the public over the Internet at the SEC's web site at
http://www.sec.gov. You may also read and copy any document we file with the
SEC at the SEC's following public reference facilities:
Public Reference Room New York Regional Office Chicago Regional Office
450 Fifth Street, N.W. 7 World Trade Center Citicorp Center
Room 1024 Suite 1300 500 West Madison Street
Washington, D.C. 20549 New York, New York 10048 Suite 1400
Chicago, Illinois 60661-2511
Copies of the documents may also be obtained at prescribed rates by writing to
the Public Reference Section of the SEC at 450 Fifth Street, N.W., Room 1024,
Washington, D.C. 20549. Please call 1-800-SEC-0330 for further information on
the operations of the public reference facilities. Our SEC filings are also
available at the offices of The Nasdaq Stock Market at 1735 K Street, N.W.,
Washington, D.C. 20006.
INCORPORATION OF DOCUMENTS BY REFERENCE
The SEC allows us to "incorporate by reference" the information we file with
them into this prospectus, which means:
. incorporated documents are considered part of this prospectus;
. we can disclose important business and financial information about us
that is not included in or delivered with this prospectus to you by
referring you to those documents; and
. information contained in later-dated documents will supplement, modify
or supersede, as applicable, the information contained in earlier-dated
documents, and information that we subsequently file with the SEC will
automatically update and supersede this incorporated information.
We incorporate by reference into this prospectus the documents listed below,
as amended and supplemented, and all documents filed by us with the SEC under
Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934 after
the date of this prospectus and prior to the time that the exchange offer made
hereby is completed:
. Our annual report on Form 10-K for the fiscal year ended December 31,
1998;
. Our quarterly report on Form 10-Q for the quarterly period ended March
31, 1999;
. Our quarterly report on Form 10-Q for the quarterly period ended June
30, 1999;
. Our current report on Form 8-K dated March 8, 1999;
. Our current report on Form 8-K dated March 15, 1999;
. Our current report on Form 8-K dated March 31, 1999;
. Our current report on Form 8-K dated June 9, 1999, as amended by our
current report on Form 8-K/A dated June 9, 1999;
. Our current report on Form 8-K dated July 12, 1999;
. Our current report on Form 8-K dated July 22, 1999; and
. Our current report on Form 8-K dated September , 1999.
ii
You can obtain any of the filings incorporated by reference in this document
through us or from the SEC through the SEC's web site or at the addresses
listed above. Documents incorporated by reference in this prospectus, except
for any exhibits to those documents that are not expressly incorporated by
reference in those documents, are available from us without charge by
requesting them in writing or by telephone at the following address and
telephone number:
Crown Castle International Corp.
510 Bering Drive
Suite 500
Houston, TX 77057
Attention: Kathy Broussard, Corporate Secretary
Telephone: (713) 570-3100.
If you request any incorporated documents from us, we will mail them to you
by first class mail, or another equally prompt means, within one business day
after we receive your request. However, in order to obtain timely delivery of
these documents, you must make your request no later than five business days
before the expiration date of the exchange offer.
Unless the context requires otherwise, all references in this document to
"this prospectus" include all documents incorporated by reference in this
prospectus.
iii
PROSPECTUS SUMMARY
This summary highlights information contained elsewhere in this prospectus or
incorporated by reference in this prospectus. This summary may not contain all
the information that is important to you. We encourage you to read this entire
prospectus carefully.
The Company
We are a leading owner and operator of towers and transmission networks for
wireless communications and broadcast companies. After giving effect to the
completion of the recent and proposed transactions we describe in this
prospectus, as of June 30, 1999, we owned or managed 7,251 towers, including
5,402 towers in the United States and Puerto Rico and 1,849 towers in the
United Kingdom. Our customers currently include many of the world's major
wireless communications and broadcast companies, including Bell Atlantic
Mobile, BellSouth Mobility, AT&T Wireless, Nextel and the British Broadcasting
Corporation.
Our strategy is to use our leading domestic and international position to
capture the growing opportunities to consolidate ownership of existing towers
and to build new towers created by:
. the transfer to third parties, or outsourcing, of tower ownership and
management by major wireless carriers;
. the need for existing wireless carriers to expand coverage and improve
capacity;
. the additional demand for towers created by new entrants into the
wireless communications industry;
. the privatization of state-run broadcast transmission networks; and
. the introduction of new digital broadcast transmission technology and
other wireless technologies.
Our two main businesses are leasing antenna space on wireless and broadcast
towers that can accommodate multiple tenants and operating networks that
transmit analog and digital broadcast signals, or broadcast transmission
networks. We also provide related services to our customers. We believe that
our full service capabilities are a key competitive advantage in forming
strategic partnerships to acquire large concentrations of towers, or tower
clusters, and in winning contracts for new tower construction.
Our primary business in the United States is the leasing of antenna space to
wireless carriers. After completion of the recent and proposed transactions we
describe in this prospectus, we will have tower clusters in 26 of the 50
largest U.S. metropolitan areas, 23 of which are east of the Mississippi river.
Our primary business in the United Kingdom is the operation of television and
radio broadcast transmission networks. We also lease antenna space to wireless
operators in the United Kingdom on the towers we acquired from the BBC and from
various wireless carriers. Since completing the One2One transaction described
in this prospectus, we now have nationwide broadcast and wireless coverage in
the United Kingdom.
Our principal executive offices are located at 510 Bering Drive, Suite 500,
Houston, Texas 77057, and our telephone number is (713) 570-3000.
1
Growth Strategy
Our objective is to become the premier global owner and operator of towers
and transmission networks for wireless communications and broadcast companies.
Our experience in expanding and marketing our tower clusters, as well as our
experience in operating analog and digital broadcast transmission networks,
positions us to accomplish this objective. The key elements of our growth
strategy are to:
. Maximize utilization of our tower capacity.
. Utilize the expertise of our U.S. and U.K. personnel to capture global
growth opportunities.
. Partner with wireless carriers to assume ownership of their existing
towers.
. Build new towers for wireless carriers and broadcasters.
. Acquire existing broadcast transmission networks.
. Continue to decentralize our management functions.
Recent and Proposed Transactions
We have recently completed or entered into agreements to complete the
transactions described below. Completion of these transactions has and will
continue to result in a significant increase in the size of our operations and
the number of towers that we own and manage. The agreements governing the
transactions that have not yet been closed or that are closing over a series of
closings include a number of important conditions. Therefore, we cannot
guarantee that we will close any of the proposed transactions on the terms
currently contemplated or at all.
Bell Atlantic Joint Venture
On March 31, 1999, we completed the formation of a joint venture with Bell
Atlantic Mobile to own and operate approximately 1,458 towers. These towers
represent substantially all the towers in Bell Atlantic's wireless network in
the eastern and southwestern United States, including markets such as New York,
Philadelphia, Boston, Washington, D.C. and Phoenix. The joint venture will also
build and own the next 500 towers to be built for Bell Atlantic's wireless
communications business. Bell Atlantic leases antenna space on the 1,458 towers
transferred to the joint venture and will lease antenna space on the towers
that the joint venture builds for Bell Atlantic.
BellSouth Transaction
On June 1, 1999, we entered into an agreement with BellSouth to control and
operate, through a sublease, approximately 1,850 towers. These towers represent
substantially all the towers in BellSouth's wireless network in the
southeastern and midwestern United States, including markets such as Miami,
Atlanta, Tampa, Nashville and Indianapolis. We will be responsible for managing
and leasing the available space on BellSouth's towers. We will have the right
to build, control and operate the next 500 towers to be built for BellSouth's
wireless communications business. BellSouth will lease antenna space on the
1,850 towers, as well as on the towers we build for BellSouth. The BellSouth
transaction will close in a series of closings which commenced on June 1, 1999.
As of August 3, 1999, BellSouth had subleased 503 towers to us.
Powertel Acquisition
On June 2, 1999, we completed the purchase of 620 towers from Powertel. These
towers represent substantially all of Powertel's owned towers in its wireless
network in the southeastern and
2
midwestern United States, including such markets as Atlanta, Birmingham,
Jacksonville, Memphis and Louisville, and a number of major connecting highway
corridors in the southeast. These towers are complementary to BellSouth's
towers in the southeast and have minimal coverage overlap. Powertel leases
antenna space on the 620 towers we acquired in the acquisition. We will also
purchase an additional 31 towers from Powertel and have a build-to-suit
agreement through 2000 as to a minimum of 40 towers.
One2One Transaction
On March 31, 1999, Castle Transmission International Ltd, or Castle
Transmission, our U.K. operating subsidiary, acquired the rights to manage,
develop and, at its option, acquire up to 821 towers. These towers represent
substantially all the towers in One2One's nationwide wireless network in the
United Kingdom. We are responsible for managing and leasing available space on
the towers and receive all the income from any such third party leases.
BellSouth DCS Transaction
On July 23, 1999, we entered into an agreement with BellSouth DCS to control
and operate, through a sublease, approximately 773 personal communications
towers from BellSouth DCS. The towers are located in North Carolina, South
Carolina, east Tennessee and parts of Georgia. The terms of the proposed
BellSouth DCS transaction are substantially the same as the BellSouth
transaction described above. The towers are complementary to the towers we have
acquired or are in the process of acquiring through the BellSouth transaction
and the Powertel acquisition. BellSouth DCS will lease space from us on the
towers we acquire from them through this transaction. On August 3, 1999, we
closed on 448 of these towers.
Recent Offerings
On August 3, 1999, we closed the private placement of the old notes.
3
The Offering
Summary of Terms of the Exchange Offer
Background.................. On August 3, 1999, we completed a private
placement of the old notes. In connection with
that private placement, we entered into a
registration rights agreement in which we agreed,
among other things, to deliver this prospectus to
you and to complete an exchange offer. We are
offering to exchange our 9 1/2% Senior Notes Due
2011 which have been registered under the
Securities Act of 1933 for a like principal
amount of our outstanding, unregistered 9 1/2%
Senior Notes Due 2011 and our 11 1/4% Senior
Discount Notes Due 2011 which have been
registered under the Securities Act of 1933 for a
like principal amount at maturity of our
outstanding, unregistered 11 1/4% Senior Discount
Notes Due 2011. Old Notes may only be tendered in
integral multiples of $1,000 principal amount at
maturity.
As of the date of this prospectus, $125,000,000
in aggregate principal amount of our 9 1/2%
Senior Notes Due 2011 and $260,000,000 in
aggregate principal amount at maturity of our 11
1/4% Senior Discount Notes Due 2011 is
outstanding.
Resale of New Notes......... We believe that new notes issued pursuant to the
exchange offer in exchange for old notes may be
offered for resale, resold and otherwise
transferred by you without compliance with the
registration and prospectus delivery provisions
of the Securities Act of 1933, provided that:
. you are acquiring the new notes in the ordinary
course of your business;
. you have not engaged in, do not intend to
engage in, and have no arrangement or
understanding with any person to participate in
the distribution of the new notes; and
. you are not our affiliate as defined under Rule
405 of the Securities Act of 1933.
Each participating broker-dealer that receives
new notes for its own account pursuant to the
exchange offer in exchange for old notes that
were acquired as a result of market-making or
other trading activity must acknowledge that it
will deliver a prospectus in connection with any
resale of new notes. See "Plan of Distribution".
Any holder of old notes who:
(1) is our affiliate,
(2) does not acquire new notes in the ordinary
course of its business,
4
(3) tenders in the exchange offer with the
intention to participate, or for the purpose
of participating, in a distribution of new
notes or
(4) is a broker-dealer that acquired the old
notes directly from us
must comply with the registration and prospectus
delivery requirements of the Securities Act of
1933 in connection with the resale of new notes.
Consequences If You Do Not
Exchange Your Old Notes.... Old notes that are not tendered in the exchange
offer or are not accepted for exchange will
continue to bear legends restricting their
transfer. You will not be able to offer or sell
the old notes unless:
. pursuant to an exemption from the requirements
of the Securities Act of 1933;
. the old notes are registered under the
Securities Act of 1933; or
. the transaction requires neither such an
exemption nor registration,
and after the exchange offer is closed, we will
no longer have an obligation to register the old
notes, except for some limited exceptions. See
"Risk Factors--Failure to Exchange Your Old
Notes".
Expiration Date............. 5:00 p.m., New York City time, on , 1999,
unless we extend the exchange offer.
Certain Conditions to the
Exchange Offer............. The exchange offer is subject to certain
customary conditions, which we may waive.
Special Procedures for
Beneficial Holders......... If you beneficially own old notes which are
registered in the name of a broker, dealer,
commercial bank, trust company or other nominee
and you wish to tender in the exchange offer, you
should contact such registered holder promptly
and instruct such person to tender on your
behalf. If you wish to tender in the exchange
offer on your own behalf, you must, prior to
completing and executing the letter of
transmittal and delivering your old notes, either
arrange to have the old notes registered in your
name or obtain a properly completed bond power
from the registered holder. The transfer of
registered ownership may take considerable time.
Withdrawal Rights........... You may withdraw your tender of old notes at any
time before the offer expires.
5
We will not recognize any gain or loss for
Accounting Treatment........ accounting purposes upon the completion of the
exchange offer. Any expenses of the exchange
offer that we pay will be charged against our
additional paid-in-capital in accordance with
generally accepted accounting principles. See
"The Exchange Offer--Accounting Treatment".
Certain Tax Consequences.... The exchange pursuant to the exchange offer
generally will not be a taxable event for U.S.
Federal income tax purposes.
Use of Proceeds............. We will not receive any proceeds from the
exchange or the issuance of new notes in
connection with the exchange offer.
Exchange Agent.............. United States Trust Company of New York is
serving as exchange agent in connection with the
exchange offer.
Summary Description of the Securities to be Registered
The new notes have the same financial terms and covenants as the old notes,
which are as follows:
The New Cash-Pay Notes
Securities Offered.......... $125.0 million in aggregate principal amount of 9
1/2% Senior Notes Due 2011.
Maturity.................... August 1, 2011.
Interest.................... Annual Rate--9 1/2%. Payment frequency--every six
months on February 1 and August 1. Cash interest
on the new cash-pay notes is payable beginning on
February 1, 2000.
The New Discount Notes
Securities Offered.......... $260.0 million in aggregate principal amount at
maturity ($152.95 in accreted value) of 11 1/4%
Senior Discount Notes Due 2011.
Maturity.................... August 1, 2011.
Interest.................... Annual rate--11 1/4%. Payment frequency--every
six months on February 1 and August 1. First
payment--February 1, 2005. Cash interest on the
new discount notes will not accrue prior to
August 1, 2004.
Original issue discount..... The old discount notes were issued with original
issue discount for U.S. Federal income tax
purposes. The new discount notes will bear the
same amount of original issue discount as the old
discount notes. The new discount notes will
accrete in value through August 1, 2004 at an
annual rate of 11 1/4%, compounding every six
months. Cash interest will not be payable on the
new discount notes until after August 1, 2004.
6
Additional Terms of the New Notes
Ranking..................... The new notes are senior debts. They rank equally
in right of payment with all of our existing and
future senior debt, but will be effectively
junior in right of payment to the extent of the
assets securing our other senior debt. Our only
significant assets are the capital stock of our
subsidiaries, and the new notes will not be
guaranteed by our subsidiaries. As a result, the
new notes will be structurally subordinated to
all debt and other liabilities of our
subsidiaries, including borrowings under their
credit facilities.
Optional redemption......... On or after August 1, 2004, we may redeem some or
all of the notes at any time at the redemption
prices listed in the "Description of Notes"
section under the heading "Optional Redemption".
Before August 1, 2002, we may redeem up to 35% of
the notes with the proceeds of public offerings
of equity or strategic investments in us at the
prices listed in the "Description of Notes"
section under the heading "Optional Redemption".
Mandatory offer to If we sell certain assets or experience specific
repurchase.................. kinds of changes of control, we must offer to
repurchase the notes at the prices listed in the
"Description of Notes" section under the heading
"Repurchase at the Option of Holders".
Basic covenants of We will issue the new notes under two indentures
indenture................... with the United States Trust Company of New York.
Each indenture, among other things, restricts our
ability and the ability of our subsidiaries to:
. borrow money;
. pay dividends on stock or repurchase stock;
. make investments;
. use assets as security in other transactions;
and
. sell assets or merge with or into other
companies.
For more details, see the "Description of the
Notes" section under the heading "Certain
Covenants".
Risk Factors
You should carefully consider all of the information in this prospectus. In
particular, you should evaluate the specific risk factors under "Risk Factors"
for a discussion of certain risks related to your participation in the exchange
offer.
7
Summary Financial and Other Data of CCIC
The summary historical consolidated financial and other data for CCIC set
forth below for each of the four years in the period ended December 31, 1998,
and as of December 31, 1995, 1996, 1997 and 1998, have been derived from the
consolidated financial statements of CCIC, which have been audited by KPMG LLP,
independent certified public accountants. The summary historical consolidated
financial and other data for CCIC set forth below for the six months ended June
30, 1998 and 1999, and as of June 30, 1999, have been derived from the
unaudited consolidated financial statements of CCIC, which include all
adjustments that CCIC considers necessary for a fair presentation of the
financial position and results of operations for those periods. Operating
results for the six months ended June 30, 1998 and 1999 are not necessarily
indicative of the results that may be expected for the entire year. The results
of operations for the six months ended June 30, 1999 are not comparable to the
six months ended June 30, 1998, the results for the year ended December 31,
1998 are not comparable to the year ended December 31, 1997, and the results
for the year ended December 31, 1997 are not comparable to the year ended
December 31, 1996 as a result of business acquisitions completed in 1997, 1998
and 1999. Results of operations of these acquired businesses are included in
CCIC's consolidated financial statements for the periods after the respective
dates of acquisition. The information set forth below should be read in
conjunction with the "Management's Discussion and Analysis of Financial
Condition and Results of Operations--Results of Operations--CCIC" section of
documents, and the consolidated financial statements and related notes of CCIC
included in CCIC's Annual Report on Form 10-K and Quarterly Report on Form 10-
Q, incorporated by reference in this prospectus.
Six Months Ended
Years Ended December 31, June 30,
------------------------------------ ------------------
1995 1996 1997 1998 1998 1999
------- ------- -------- -------- -------- --------
(Dollars in thousands, except per share amounts)
Statement of Operations
Data:
Net revenues:
Site rental and
broadcast
transmission.......... $ 4,052 $ 5,615 $ 11,010 $ 75,028 $ 10,448 $107,503
Network services and
other................. 6 592 20,395 38,050 12,919 25,133
------- ------- -------- -------- -------- --------
Total net revenues... 4,058 6,207 31,405 113,078 23,367 132,636
------- ------- -------- -------- -------- --------
Costs of operations:
Site rental and
broadcast
transmission.......... 1,226 1,292 2,213 26,254 2,418 45,084
Network services and
other................. -- 8 13,137 21,564 7,155 15,157
------- ------- -------- -------- -------- --------
Total costs of
operations.......... 1,226 1,300 15,350 47,818 9,573 60,241
------- ------- -------- -------- -------- --------
General and
administrative......... 729 1,678 6,824 23,571 8,768 17,542
Corporate
development(a)......... 204 1,324 5,731 4,625 2,022 2,940
Restructuring charges... -- -- -- -- -- 1,814
Non-cash compensation
charges(b) ............ -- -- -- 12,758 -- 1,171
Depreciation and
amortization........... 836 1,242 6,952 37,239 7,695 49,519
------- ------- -------- -------- -------- --------
Operating income
(loss)................. 1,063 663 (3,452) (12,933) (4,691) (591)
Other income (expense):
Equity in earnings
(losses) of
unconsolidated
affiliate............. -- -- (1,138) 2,055 525 --
Interest and other
income (expense)(c)... 53 193 1,951 4,220 1,370 4,879
Interest expense and
amortization of
deferred financing
costs................. (1,137) (1,803) (9,254) (29,089) (10,027) (37,842)
------- ------- -------- -------- -------- --------
Loss before income
taxes, minority
interests and
cumulative effect of
change in accounting
principle.............. (21) (947) (11,893) (35,747) (12,823) (33,554)
Provision for income
taxes.................. -- (10) (49) (374) (209) (197)
Minority interests...... -- -- -- (1,654) -- (572)
------- ------- -------- -------- -------- --------
Loss before cumulative
effect of change in
accounting principle... (21) (957) (11,942) (37,775) (13,032) (34,323)
Cumulative effect of
change in accounting
principle for costs of
start-up activities.... -- -- -- -- -- (2,414)
------- ------- -------- -------- -------- --------
Net loss................ (21) (957) (11,942) (37,775) (13,032) (36,737)
Dividends on preferred
stock.................. -- -- (2,199) (5,411) (4,132) (13,022)
------- ------- -------- -------- -------- --------
Net loss after deduction
of dividends on
preferred stock........ $ (21) $ (957) $(14,141) $(43,186) $(17,164) $(49,759)
======= ======= ======== ======== ======== ========
8
Six Months Ended
Years Ended December 31, June 30,
----------------------------------------- --------------------
1995 1996 1997 1998 1998 1999
-------- -------- --------- ---------- -------- ----------
(Dollars in thousands, except per share amounts)
Per common share--basic
and diluted:
Loss before cumulative
effect of change in
accounting
principle............. $ (0.01) $ (0.27) $ (2.27) $ (1.02) $ (1.57) $ (0.43)
Cumulative effect of
change in accounting
principle............. -- -- -- -- -- (0.02)
-------- -------- --------- ---------- -------- ----------
Net loss............... $ (0.01) $ (0.27) $ (2.27) $ (1.02) $ (1.57) $ (0.45)
======== ======== ========= ========== ======== ==========
Common shares
outstanding--basic
and diluted (in
thousands)............ 3,316 3,503 6,238 42,518 10,954 109,791
======== ======== ========= ========== ======== ==========
Other Data:
Site data (at period
end)(d):
Towers owned........... 126 155 240 1,344 361 4,837
Towers managed......... 7 7 133 129 129 13
Rooftop sites managed
(revenue producing)... 41 52 80 135 66 146
-------- -------- --------- ---------- -------- ----------
Total sites owned and
managed............. 174 214 453 1,608 556 4,996
======== ======== ========= ========== ======== ==========
EBITDA(e):
Site rental............ $ 2,697 $ 3,555 $ 7,682 $ 44,661 $ 7,215 $ 57,647
Network services and
other................. (594) (326) 1,549 (2,972) (2,189) (2,794)
Corporate development
expenses(a)........... (204) (1,324) (5,731) (4,625) (2,022) (2,940)
-------- -------- --------- ---------- -------- ----------
Total EBITDA......... $ 1,899 $ 1,905 $ 3,500 $ 37,064 $ 3,004 $ 51,913
======== ======== ========= ========== ======== ==========
Capital expenditures.... $ 161 $ 890 $ 18,035 $ 138,759 $ 52,752 $ 127,564
Summary cash flow
information:
Net cash provided by
(used for) operating
activities............ 1,672 (530) (624) 44,976 (1,972) 35,119
Net cash used for
investing
activities............ (16,673) (13,916) (111,484) (149,248) (52,752) (671,864)
Net cash provided by
financing
activities............ 15,597 21,193 159,843 345,248 50,904 1,047,687
Ratio of earnings to
fixed charges(f)....... -- -- -- -- -- --
Balance Sheet Data (at
period end):
Cash and cash
equivalents............ $ 596 $ 7,343 $ 55,078 $ 296,450 $ 705,924
Property and equipment,
net.................... 16,003 26,753 81,968 592,594 1,615,646
Total assets............ 19,875 41,226 371,391 1,523,230 3,029,094
Total debt.............. 11,182 22,052 156,293 429,710 1,194,681
Redeemable preferred
stock(g)............... 5,175 15,550 160,749 201,063 214,085
Total stockholders'
equity (deficit)....... 619 (210) 41,792 737,562 1,436,398
- --------
(a) Corporate development expenses represent costs incurred in connection with
acquisitions and development of new business initiatives. These expenses
consist primarily of allocated compensation, benefits and overhead costs
that are not directly related to the administration or management of
existing towers. For the year ended December 31, 1997, such expenses
include (1) nonrecurring cash bonuses of $0.9 million paid to certain
executive officers in connection with our initial investment in Castle
Transmission and (2) a nonrecurring cash charge of $1.3 million related to
our purchase of shares of our common stock from our former chief executive
officer in connection with our initial Castle Transmission investment.
(b) Represents charges related to the issuance of stock options to certain
employees and executives.
(c) Includes a $1.2 million fee received in March 1997 as compensation for
leading an investment consortium that provided the equity financing in
connection with our initial Castle Transmission investment.
(d) Represents our aggregate number of sites as of the end of each period.
(e) EBITDA is defined as operating income (loss) plus depreciation and
amortization, non-cash compensation charges and restructuring charges.
EBITDA is presented as additional information because management believes
it to be a useful indicator of our ability to meet debt service and capital
expenditure requirements. It is not, however, intended as an alternative
measure of operating results or cash flow from operations, as
9
determined in accordance with generally accepted accounting principles.
Furthermore, our measure of EBITDA may not be comparable to similarly titled
measures of other companies.
(f) For purposes of computing the ratio of earnings to fixed charges, earnings
represent income (loss) before income taxes, fixed charges and equity in
earnings (losses) of unconsolidated affiliate. Fixed charges consist of
interest expense, the interest component of operating leases and
amortization of deferred financing costs. For the years ended December 31,
1995, 1996, 1997 and 1998, earnings were insufficient to cover fixed
charges by $21,000, $0.9 million, $10.8 million and $37.8 million,
respectively. For the six months ended June 30, 1998 and 1999, earnings
were insufficient to cover fixed charges by $13.3 million and $33.6
million, respectively.
(g) The 1995, 1996 and 1997 amounts represent (1) the senior convertible
preferred stock we privately placed in August 1997 and October 1997, all of
which has been converted into shares of common stock, and (2) Series A
convertible preferred stock, Series B convertible preferred stock and
Series C convertible preferred stock we privately placed in April 1995,
July 1996 and February 1997, respectively, all of which has been converted
into shares of common stock in connection with the completion of our
initial public offering in August 1998. The 1998 and 1999 amounts represent
our exchangeable preferred stock.
10
RISK FACTORS
You should carefully consider the risks described below, as well as the other
information included in this prospectus, when evaluating your participation in
the exchange offer.
Failure to Exchange Your Old Notes--If you fail to exchange your old notes,
they will continue to be restricted securities and may become less liquid.
Old notes which you do not tender or we do not accept will, following the
exchange offer, continue to be restricted securities and you may not offer or
sell them except pursuant to an exemption from, or in a transaction not subject
to, the Securities Act of 1933 and applicable state securities law. We will
issue new notes in exchange for the old notes pursuant to the exchange offer
only following the satisfaction of the procedures and conditions set forth in
"The Exchange Offer--Procedures for Tendering." Such procedures and conditions
include timely receipt by the exchange agent of such old notes, and of a
properly completed and duly executed letter of transmittal.
Because we anticipate that most holders of old notes will elect to exchange
such old notes, we expect that the liquidity of the market for any old notes
remaining after the completion of the exchange offer may be substantially
limited. Any old notes tendered and exchanged in the exchange offer will reduce
the aggregate principal amount at maturity of the old notes outstanding.
Following the exchange offer, if you did not tender your old notes you
generally will not have any further registration rights, and such old notes
will continue to be subject to certain transfer restrictions. Accordingly, the
liquidity of the market for such old notes could be adversely affected. The old
notes are currently eligible for sale pursuant to Rule 144A and Regulation S
through the Private Offerings, Resale and Trading through Automated Linkages
market of the National Association of Securities Dealers, Inc.
Failure to Properly Manage Our Growth--If we are unable to successfully
integrate acquired operations or to manage our existing operations as we grow,
our business will be adversely affected and we may not be able to continue our
current business strategy.
We cannot guarantee that we will be able to successfully integrate acquired
businesses and assets into our business or implement our plans without delay.
If we fail to do so it could have a material adverse effect on our financial
condition and results of operations. We have grown significantly over the past
two years through acquisitions, and such growth continues to be an important
part of our business plan. The addition of over 5,500 towers to our operations
through our recent and proposed transactions has and will continue to increase
our current business considerably and adds operating complexities. Successful
integration of these transactions will depend primarily on our ability to
manage these combined operations and to integrate new management and employees
with and into our existing operations.
Implementation of our acquisition strategy may impose significant strains on
our management, operating systems and financial resources. We regularly
evaluate potential acquisition and joint venture opportunities and are
currently evaluating potential transactions that could involve substantial
expenditures, possibly in the near term. If we fail to manage our growth or
encounter unexpected difficulties during expansion it could have a material
adverse effect on our financial condition and results of operations. The
pursuit and integration of acquisitions and joint venture opportunities will
require substantial attention from our senior management, which will limit the
amount of time they are able to devote to our existing operations.
11
We May Not Complete the Proposed Transactions--If we fail to complete any or
all of the proposed transactions described in this prospectus, we may incur
liquidated damages and will not recognize some of the benefits that we describe
in this prospectus.
If one or more of the proposed transactions we describe in this prospectus is
not completed or is completed on significantly different terms than those
currently contemplated, it could substantially affect the implementation of our
business strategy. If we fail to close these transactions, our ability to offer
tower clusters in major U.S. markets will be impaired. As a result, our future
site rental revenue would be adversely affected. We cannot guarantee that we
will complete any or all of these proposed transactions. The agreements
relating to these proposed transactions contain many conditions that must be
satisfied before we can close these proposed transactions.
In addition, we cannot assure you that the transactions, if and when
completed, will be done so on the terms currently contemplated. For example,
each of the agreements relating to these proposed transactions includes
provisions that could result in our purchasing fewer towers at closing.
Our initial BellSouth transaction is closing in a series of closings. If we
fail to close on all of the contracted towers, BellSouth could terminate our
agreement, rescind the prior closings and retain a $50.0 million liquidated
damages payment. The BellSouth DCS agreement contains similar provisions, with
a liquidated damages amount of $20.0 million. The recission of either BellSouth
transaction would significantly affect our available working capital and could
have a material adverse effect on our ability to implement our business
strategy.
Substantial Level of Indebtedness--Our substantial level of indebtedness could
adversely affect our ability to react to changes in our business. We may also
be limited in our ability to use debt to fund future capital needs.
We have a substantial amount of indebtedness. The following chart sets forth
certain important credit information and is presented as of June 30, 1999,
assuming we had completed the recent offerings and the recent transactions
described in this prospectus, each as of June 30, 1999.
Pro Forma
for Recent and
Proposed
Offerings and
Recent
Transactions
--------------
(Dollars in
thousands)
Total indebtedness......................................... $1,470,192
Redeemable preferred stock................................. 408,989
Stockholders' equity....................................... 1,726,442
Debt and redeemable preferred stock to equity
ratio..................................................... 1.09x
In addition, assuming we had completed these transactions on January 1, 1998,
our earnings for the twelve months ended December 31, 1998, and the six months
ended June 30, 1999, would have been insufficient to cover fixed charges by
$175.2 million and $86.3 million, respectively.
Given our substantial indebtedness, we could be affected in the following
ways:
. We could be more vulnerable to general adverse economic and industry
conditions.
. We may find it more difficult to obtain additional financing to fund
future working capital, capital expenditures and other general corporate
requirements.
12
. We will be required to dedicate a substantial portion of our cash flow
from operations to the payment of principal and interest on our debt,
reducing the available cash flow to fund other projects.
. We may have limited flexibility in planning for, or reacting to, changes
in our business and in the industry.
. We will have a competitive disadvantage relative to other companies with
less debt in our industry.
We cannot guarantee that we will be able to generate enough cash flow from
operations or that we will be able to obtain enough capital to service our debt
or fund our planned capital expenditures. In addition, we may need to refinance
some or all of our indebtedness on or before maturity. We cannot guarantee,
however, that we will be able to refinance our indebtedness on commercially
reasonable terms or at all.
As a Holding Company, We Require Dividends from Subsidiaries to Meet Cash
Requirements or Pay Dividends--If our subsidiaries are unable to dividend cash
to us when we need it, we may be unable to pay dividends or satisfy our
obligations, including interest and principal payments, under our debt
instruments.
Crown Castle International Corp., or CCIC, is a holding company with no
business operations of its own. CCIC's only significant asset is the
outstanding capital stock of its subsidiaries. CCIC conducts all its business
operations through its subsidiaries. Accordingly, CCIC's only source of cash to
pay dividends or make other distributions on its capital stock or to pay
interest and principal on its outstanding indebtedness is distributions
relating to its ownership interest in its subsidiaries from the net earnings
and cash flow generated by such subsidiaries. We currently expect that the
earnings and cash flow of CCIC's subsidiaries will be retained and used by such
subsidiaries in their operations, including to service their respective debt
obligations. Even if we did determine to make a distribution in respect of the
capital stock of CCIC's subsidiaries, there can be no assurance that CCIC's
subsidiaries will generate sufficient cash flow to pay or distribute such a
dividend or funds, or that applicable state law and contractual restrictions,
including negative covenants contained in the debt instruments of such
subsidiaries, would permit such dividends, distributions or payments.
Furthermore, the terms of our U.S. and U.K. credit facilities place
restrictions on our principal subsidiaries' ability to pay dividends or to make
distributions, and in any event, such dividends or distributions may only be
paid if no default has occurred under the applicable instrument. Moreover,
CCIC's subsidiaries are permitted under the terms of their existing debt
instruments to incur additional indebtedness that may restrict or prohibit the
making of distributions, the payment of dividends or the making of loans by
such subsidiaries to CCIC. See "--Our Substantial Level of Indebtedness Could
Adversely Affect Our Financial Condition" and "--Ability to Service Debt."
Ability to Service Debt--To service our indebtedness, we will require a
significant amount of cash from our subsidiaries. An inability to access our
subsidiaries' cash flow may lead to an acceleration of our indebtedness,
including the notes. Currently, the instruments governing our subsidiaries'
indebtedness do not allow sufficient funds to be distributed to CCIC to service
its indebtedness.
If CCIC is unable to refinance its subsidiary debt or renegotiate the terms
of such debt, CCIC may not be able to meet its debt service requirements,
including interest payments on the notes, in the future. Our 9% senior notes
and our 9 1/2% senior notes require annual cash interest payments of
approximately $16.2 million and 11.9 million, respectively. Prior to November
15, 2002, May 15, 2004 and August 1, 2004, the interest expense on our 10 5/8%
discount notes, our 10 3/8% discount notes
13
and our 11 1/4% discount notes, respectively, will be comprised solely of the
amortization of original issue discount. Thereafter, the 10 5/8% discount
notes, the 10 3/8% discount notes and the 11 1/4% discount notes will require
annual cash interest payments of approximately $26.7 million, $51.9 million and
$29.3 million, respectively. Prior to December 15, 2003, we do not expect to
pay cash dividends on our exchangeable preferred stock or, if issued, cash
interest on the exchange debentures. Thereafter, assuming all dividends or
interest have been paid-in-kind, our exchangeable preferred stock or, if
issued, the exchange debentures will require annual cash dividend or interest
payments of approximately $47.8 million.
Restrictive Debt Covenants--The terms of our debt instruments impose
significant restrictions on our ability to take a number of actions that our
management might otherwise believe to be in your best interests. In addition,
if we fail to comply with our covenants our debt could be accelerated.
Currently we have debt instruments in place that restrict our ability to
incur more indebtedness, pay dividends, create liens, sell assets and engage in
certain mergers and acquisitions. Some of our subsidiaries, under their debt
instruments, are also required to maintain specific financial ratios. Our
ability to comply with the restrictions of these instruments and to satisfy our
debt obligations will depend on our future operating performance. If we fail to
comply with the debt restrictions, we will be in default under those
instruments, which in some cases would cause the maturity of substantially all
of our long-term indebtedness to be accelerated.
Our Agreements with TdF Give TdF Substantial Governance and Economic Rights--
The exercise of these rights by TdF could have a material adverse effect on our
business.
We have entered into agreements with TeleDiffusion de France International
S.A., or TdF, an affiliate of France Telecom, that give TdF substantial rights.
The agreements were entered into in order to induce TdF to participate in the
roll-up of our U.K. business, the transaction in which we exchanged shares of
our common stock for shares of CTSH common stock, held by CTSH stockholders
and, as a result, increased our ownership in CTSH to 80%. The TdF agreements
give TdF significant rights relating to the governance of CCIC and our U.K.
business. Our U.K. business currently accounts for a substantial majority of
our revenues. TdF retains significant governance rights even if we acquire the
remaining 20% interest of our U.K. business held by TdF.
TdF's Governance Rights May Restrict Us From Taking Actions Our Board of
Directors Consider to Be in Your Best Interests.
We have granted TdF the ability to govern some of our activities, including
the ability to:
. prohibit us from entering into material acquisitions, issuing new equity
securities and incurring significant indebtedness;
. elect up to two members of our board of directors; and
. elect at least one director to the executive and nominating and
corporate governance committees of our board of directors.
In addition, TdF has significant governance rights over our U.K. business.
Although TdF, through its subsidiary, DFI, currently has only a 20% equity
interest in CTSH, TdF has the right to restrict a number of corporate actions
at CTSH.
TdF's exercise of these rights could be contrary to your interests.
14
TdF Will Be Able to Buy Our Interest, or Require Us to Buy Their Interest, in
Our U.K. Business in Connection with a Sale of CCIC.
Under the circumstances described below, TdF will have the right to acquire
all of our shares in CTSH or to require us to purchase all of TdF's shares in
CTSH, at fair market value in either case. This right will be triggered under
the following circumstances:
. the sale of all or substantially all of our assets;
. a merger, consolidation or similar transaction that would result in any
person owning more than 50% of our voting power or equity securities;
. an unsolicited acquisition by any person of more than 25% of our voting
power or equity securities; or
. other circumstances arising from an acquisition by any person that would
give rise to a right of the BBC to terminate our analog or digital
transmission contracts with the BBC.
Further, immediately before any of these events occur, TdF will have the
right to require us to purchase 50% of their Class A common stock in cash at
the same price we would have to pay once the event occurs.
If we were required to sell our shares in CTSH to TdF, we would no longer own
our U.K. business and would lose all the benefits of owning such business. On
the other hand, if we were required to purchase all of TdF's shares in CTSH
and/or purchase 50% of their Class A common stock, we cannot guarantee that we
would have the necessary funds to do so or that we would be permitted to do so
at the time under our debt instruments. If we did not have sufficient funds, we
would have to seek additional financing. We cannot guarantee, however, that
such financing would be available on commercially reasonable terms or at all.
If such financing were not available, we might be forced to sell assets at
unfavorable prices in order to generate the cash needed to buy the shares from
TdF. In addition, our obligation to purchase TdF's shares could result in an
event of default under our debt instruments.
TdF Has an Option to Put to Us Its Interest in Our U.K. Business Following the
Second Anniversary of the Roll-Up of Our U.K. Business. This Could Result in A
Default Under Our Debt Instruments or Substantial Dilution to Our Other
Stockholders.
If TdF has not exchanged its interest in CTSH for additional interest in CCIC
by the second anniversary of the roll-up of our U.K. business, TdF will have
the right to require us to purchase all of their shares in CTSH, at fair market
value. We may elect to pay either (1) in cash or (2) with our common stock at a
discount of 15% to its market value. We cannot guarantee that we will have
sufficient funds to purchase such shares for cash if TdF were to require us to
purchase their shares of capital stock of CTSH. If we did not have sufficient
funds, we would either need to seek additional financing or purchase the shares
with our common stock. We cannot guarantee that we could obtain such financing
on terms acceptable to us. In addition, the purchase of these shares for cash
could result in an event of default under our debt instruments. If we were to
issue shares of common stock to effect the purchase, this
. would result in substantial dilution to our other stockholders;
. could adversely affect the market prices of the common stock; and
. could impair our ability to raise additional capital through the sale of
our equity securities.
TdF Has Preemptive Rights to Acquire Our Common Stock When We Otherwise Issue
Common Stock. This Could Result in Substantial Dilution to Our Other
Stockholders.
Except in limited circumstances, if we issue any equity securities to any
person, including the closings of the BellSouth transaction, we must offer TdF
the right to purchase, at the same cash
15
price, up to an amount of such equity securities as would be necessary for TdF
and its affiliates to maintain their consolidated ownership percentage in us
before such issuance. TdF exercised these preemptive rights as a result of our
acquisition of Millennium Communications Limited in the United Kingdom on
October 8, 1998, as a result of our contribution of shares of our common stock
to the Bell Atlantic joint venture on March 31, 1999 and as a result of our
equity offering in May 1999. The further exercise of these rights by TdF could
result in substantial dilution to our other stockholders.
We Require Significant Capital to Fund Our Operations and Make Acquisitions--If
we are unable to raise capital in the future, we will be unable to achieve our
currently contemplated business strategy and may not be able to fund our
operations.
We will require substantial capital (1) as we increase the number of towers
we own and manage by partnering with wireless carriers to assume ownership or
control of their existing towers, by pursuing opportunities to build new
towers, or build-to-suit opportunities, for wireless carriers and by pursuing
other tower acquisition opportunities and (2) to acquire existing transmission
networks globally as opportunities arise. If we are unable to raise capital
when our needs arise, we will be unable to pursue our current business strategy
and may not be able to fund our operations.
To fund the execution of our business strategy, including the proposed
transactions described in this prospectus and the construction of new towers
that we have agreed to build, we expect to use the net proceeds of our recent
offerings and borrowings available under our U.S. and U.K. credit facilities.
We will have additional cash needs to fund our operations in the future. We may
also have additional cash needs in the near term if additional tower
acquisitions or build-to-suit opportunities arise. Some of the opportunities
that we are currently pursuing could require significant additional capital. If
we do not otherwise have cash available, or borrowings under our credit
facilities have otherwise been utilized, when our cash need arises, we would be
forced to seek additional debt or equity financing or to forego the
opportunity. In the event we determine to seek additional debt or equity
financing, there can be no assurance that any such financing will be available,
on commercially acceptable terms or at all, or permitted by the terms of our
existing indebtedness.
We May Not Be Able to Construct New Towers at the Pace and in the Locations
that We Desire--If we are unable to do so, we may not be able to satisfy our
current agreements to build new towers and we may have difficulty finding
tenants to lease space on our new towers.
Our growth strategy depends in part on our ability to construct and operate
towers in conjunction with expansion by wireless carriers. If we are unable to
build new towers when wireless carriers require them, or we are unable to build
new towers where we believe the best opportunity to add tenants exists, we
could fail to meet our contractual obligations under build-to-suit agreements,
and we could lose opportunities to lease space on our towers.
As of June 30, 1999, we had over 125 towers under construction. We currently
have plans to commence construction on approximately 600 to 700 additional
towers during fiscal 1999. Our ability to construct these new towers can be
affected by a number of factors beyond our control, including:
. zoning and local permitting requirements and national regulatory
approvals;
. availability of construction equipment and skilled construction
personnel; and
. bad weather conditions.
In addition, as the concern over tower proliferation has grown in recent
years, certain communities have placed restrictions on new tower construction
or have delayed granting permits required for construction. You should consider
that:
. the barriers to new construction may prevent us from building towers
where we want;
16
. we may not be able to complete the number of towers planned for
construction in accordance with the requirements of our customers; and
. we cannot guarantee that there will be a significant need for the
construction of new towers once the wireless carriers complete their
tower networks.
Our Business Depends on the Demand for Wireless Communications--We will be
adversely affected by any slowdown in the growth of, or reduction in demand
for, wireless communications.
Demand for our site rentals depends on demand for communication sites from
wireless carriers, which, in turn, depends on the demand for wireless services.
The demand for our sites depends on many factors which we cannot control,
including:
. the level of demand for wireless services generally;
. the financial condition and access to capital of wireless carriers;
. the strategy of carriers relating to owning or leasing communication
sites;
. changes in telecommunications regulations; and
. general economic conditions.
A slowdown in the growth of, or reduction in, demand in a particular wireless
segment could adversely affect the demand for communication sites. Moreover,
wireless carriers often operate with substantial indebtedness, and financial
problems for our customers could result in accounts receivable going
uncollected, in the loss of a customer and the associated lease revenue or in a
reduced ability of these customers to finance expansion activities. Finally,
advances in technology, such as the development of new satellite and antenna
systems, could reduce the need for land-based, or terrestrial, transmission
networks. The occurrence of any of these factors could have a material adverse
effect on our financial condition and results of operations.
Variability in Demand for Network Services May Reduce the Predictability of Our
Results--Our network services business has historically experienced significant
volatility in demand. As a result, the operating results of our network
services business for any particular period may vary significantly, and should
not be considered as necessarily being indicative of longer-term results.
Demand for our network services fluctuates from period to period and within
periods. These fluctuations are caused by a number of factors, including:
. the timing of customers' capital expenditures;
. annual budgetary considerations of customers;
. the rate and volume of wireless carriers' tower build-outs;
. timing of existing customer contracts; and
. general economic conditions.
While demand for our network services fluctuates, we must incur certain
costs, such as maintaining a staff of network services employees in
anticipation of future contracts, even when there may be no current business.
Furthermore, as wireless carriers complete their build-outs, the need for the
construction of new towers and the demand for our network services could
decrease significantly and could result in fluctuations and, possibly,
significant declines in our operating performance.
17
We Operate our Business in an Increasingly Competitive Industry and Many of Our
Competitors Have Significantly More Resources--As a result of this competition,
we may find it more difficult to achieve favorable lease rates on our towers
and we may be forced to pay more for future tower acquisitions.
We face increasing competition for site rental customers from various sources,
including:
. other large independent tower owners;
. wireless carriers that own and operate their own towers and lease
antenna space to other carriers;
. site development companies that acquire antenna space on existing towers
for wireless carriers and manage new tower construction; and
. traditional local independent tower operators.
Wireless carriers that own and operate their own tower portfolios generally
are substantially larger and have greater financial resources than we have. As
competition for tenants on towers increases, lease rates could be adversely
affected.
In addition, competition for the acquisition of towers is keen, and we expect
it to continue to grow. We not only compete against other independent tower
owners and operators, but also against wireless carriers, broadcasters and site
developers. As competition increases for tower acquisitions, we may be faced
with fewer acquisition opportunities, as well as higher acquisition prices.
While we regularly explore acquisition opportunities, we cannot guarantee that
we will be able to identify suitable towers to acquire in the future.
A Substantial Portion of Our Revenues Is Dependent Upon Agreements with the BBC
and NTL--If we were to lose our contracts with the BBC or our site sharing
agreement with NTL, we would likely lose a substantial portion of our revenues.
Assuming we had completed the recent and proposed transactions described in
this prospectus, each as of January 1, 1999, the BBC would have still accounted
for approximately 28.4% of our revenues for the six-month period ended June 30,
1999.
Our broadcast business is substantially dependent on our contracts with the
BBC. We cannot guarantee that the BBC will renew our contracts or that they
will not attempt to negotiate terms that are not as favorable to us as those in
place now. If we were to lose these BBC contracts, our business, results of
operations and financial condition would be materially adversely affected. The
initial term of our analog transmission contract with the BBC will expire on
March 31, 2007, and our digital transmission contract with the BBC expires on
October 31, 2010. In addition, our digital transmission contract with the BBC
may be terminated by the BBC after five years if the BBC's board of governors
does not believe that digital television in the United Kingdom has enough
viewers.
A substantial portion of our U.K. broadcast transmission operations are
conducted using sites owned by National Transmission Limited, or NTL, our major
competitor in the United Kingdom. NTL also utilizes our sites for their
broadcast operations. This site sharing arrangement with NTL may be terminated
with five years' notice by either us or NTL, and may be terminated sooner upon
a continuing breach of the agreement. The agreement is set to expire on
December 31, 2005. We cannot guarantee that this agreement will not be
terminated, which could have a material adverse effect on our business, results
of operations and financial condition.
18
Extensive Regulations Which Could Change at Any Time and Which We Could Fail to
Comply With Regulate Our Business--If we fail to comply with applicable
regulations, we could be fined or even lose our right to conduct some of our
business.
A variety of foreign, federal, state and local regulations apply to our
business. Failure to comply with applicable requirements may lead to civil
penalties or require us to assume costly indemnification obligations or breach
contractual provisions. We cannot guarantee that existing regulatory policies
will not adversely affect the timing or cost of new tower construction or that
additional regulations will not be adopted which increase delays or result in
additional costs. These factors could have a material adverse effect on our
financial condition and results of operations.
Since we signed our analog transmission contract with the BBC, the BBC has
increased its service requirements to include 24-hour broadcasting on our
transmission network for the BBC's two national television services and a
requirement for us to add a number of additional stations to our network to
extend existing BBC services. The BBC has agreed to increases of approximately
(Pounds)800,000 ($1,261,200) per year in the charges payable by the BBC to us
for these service enhancements. The additional charges, however, may
necessitate an amendment to Castle Transmission's transmission
telecommunications license. We are discussing with OFTEL, the relevant
regulatory authority in the United Kingdom, the most appropriate way to rectify
this situation in order to allow the additional services to be provided to the
BBC in return for the additional agreed payments. There can be no assurance
that we will achieve a favorable resolution of these issues with OFTEL.
Emissions from Our Antennas May Create Health Risks--We could suffer from
future claims if the radio frequency emissions from equipment on our towers is
demonstrated to cause negative health effects.
The government imposes requirements and other guidelines on our towers
relating to radio frequency emissions. The potential connection between radio
frequency emissions and certain negative health effects, including some forms
of cancer, has been the subject of substantial study by the scientific
community in recent years. To date, the results of these studies have been
inconclusive. We cannot guarantee that claims relating to radio frequency
emissions will not arise in the future.
Our International Operations Expose Us to Changes in Foreign Currency Exchange
Rates--If we fail to properly match or hedge the currencies in which we conduct
business, we could suffer losses as a result of changes in currency exchange
rates.
We conduct business in countries outside the United States, which exposes us
to fluctuations in foreign currency exchange rates. We also intend to expand
our international operations in the future. For the six-month period ended June
30, 1999, but without giving effect to the recent and proposed transactions we
describe in this prospectus, approximately 69.0% of our consolidated revenues
would have originated outside the United States, all of which were denominated
in currencies other than U.S. dollars, principally pounds sterling. We have not
historically engaged in significant hedging activities relating to our non-U.S.
dollar operations, and we could suffer future losses as a result of changes in
currency exchange rates.
We Are Heavily Dependent on Our Senior Management--If we lose members of our
senior management, we may not be able to find appropriate replacements on a
timely basis and our business could be adversely affected.
Our existing operations and continued future development are dependent to a
significant extent upon the performance and active participation of certain key
individuals, including our chief executive officer and the chief operating
officers of our principal U.S. and U.K. subsidiaries. We cannot
19
guarantee that we will be successful in retaining the services of these, or
other key personnel. None of our executives have signed noncompetition
agreements. If we were to lose any of these individuals, we may not be able to
find appropriate replacements on a timely basis and our financial condition and
results of operations could be materially adversely affected.
The Notes Are Subject to the Risk of Fraudulent Conveyance Liability--Federal
and state statutes allow courts, under specific circumstances, to void the
notes and require noteholders to return payments received from us.
Various laws enacted for the protection of creditors may apply to our
incurrence of indebtedness, including the issuance of the notes in this
exchange offer. If these laws are held by a court to apply to the notes, you
could be required to return payments you receive on the notes, and the notes
could be voided. If a court were to find in a lawsuit by an unpaid creditor or
representative of creditors that we did not receive fair consideration or
reasonably equivalent value for incurring such indebtedness or obligation and,
at the time of such incurrence, we
. were insolvent;
. were rendered insolvent by reason of such incurrence;
. were engaged in a business or transaction for which our remaining assets
constituted unreasonably small capital; or
. intended to incur or believe we would incur obligations beyond our
ability to pay such obligations as they mature,
such court could, subject to statutes of limitations, determine to invalidate
such indebtedness and obligations as fraudulent conveyances or subordinate such
indebtedness and obligations to existing or future creditors.
Original Issue Discount on the Notes May Limit the Claim of a Holder of
Discount Notes in a Bankruptcy Case Against Us--If a bankruptcy case is
commenced before the discount notes have fully accreted, you may not be able to
recover the portion of the original issue discount that has not yet accrued.
If a bankruptcy case is commenced by or against us under the U.S. Bankruptcy
Code after the issuance of the new discount notes, the claim of a holder of
such new discount notes relating to the principal amount thereof may be limited
to an amount equal to the sum of (1) the initial offering price and (2) that
portion of the original issue discount that is not deemed to constitute
"unmatured interest" for purposes of the U.S. Bankruptcy Code. Any original
issue discount that was not accrued as of any such bankruptcy filing would
constitute "unmatured interest."
There is Currently No Market for the New Notes--If an active trading market for
the new notes does not develop, the liquidity and value of the new notes could
be harmed.
The new discount notes and the new cash-pay notes are new issues of
securities for which there is currently no trading market. Although the
underwriters have advised us that they intend to make a market in the new
notes, the underwriters are not obligated to do so and may discontinue such
market making at any time. We do not intend to apply for listing of the new
notes on any domestic securities exchange or to seek approval for quotation
through an automated quotation system. Accordingly, there can be no assurance
that an active market will develop upon completion of the exchange offer or, if
developed, that such market will be sustained or as to the liquidity of any
market.
20
Year 2000 Compliance Problems Could Affect Our Business--If we are unable to
remedy our year 2000 compliance problems, we may suffer business interruptions,
as well as financial loss and reputational harm.
We are in the process of conducting a comprehensive review of our computer
systems to identify which of our systems will need to be modified, upgraded or
converted to recognize dates after December 31, 1999, which is known as the
year 2000 problem. The failure to correct a material year 2000 problem could
result in a system failure, such as the failure of tower lighting or security
monitoring systems, or miscalculations causing disruption of operations
including, among other things, a temporary inability to process transactions,
send invoices, or engage in similar normal business activities.
We cannot assure you that we will be able to resolve all year 2000 compliance
issues without any future disruption or that we will not incur significant
additional expense in attempting to do so. In addition, if some of our major
suppliers and customers fail to address their own year 2000 compliance issues,
their non-compliance could have a material adverse effect on us and our
operations.
This Prospectus Includes Forward-Looking Statements--If our expectations
reflected in these forward-looking statements prove to be incorrect, our actual
results could differ materially from these expectations.
This prospectus includes "forward-looking statements" within the meaning of
Section 27A of the Securities Act of 1933 and Section 21E of the Securities
Exchange Act of 1934. All statements other than statements of historical facts
included in or incorporated by reference in this document, including, without
limitation, statements under the sections "Summary", "Management's Discussion
and Analysis of Financial Condition and Results of Operations", "Industry
Background" and "Business" and located elsewhere in or incorporated by
reference in this prospectus regarding industry prospects, our prospects and
our financial position are forward-looking statements. Although we believe that
the expectations reflected in such forward-looking statements are reasonable,
we can give no assurance that such expectations will prove to have been
correct. Important factors that could cause actual results to differ materially
from our expectations are disclosed in this prospectus, including, without
limitation, the statements included under "Risk Factors". All subsequent
written and oral forward-looking statements attributable to us or persons
acting on our behalf are expressly qualified in their entirety by the
cautionary statements included in this document. In light of these risks,
uncertainties and assumptions, the forward-looking events discussed in this
prospectus might not occur.
USE OF PROCEEDS
We will not receive any proceeds from the exchange offer.
21
SELECTED FINANCIAL AND OTHER DATA OF CCIC
The selected historical consolidated financial and other data for CCIC set
forth below for each of the four years in the period ended December 31, 1998,
and as of December 31, 1995, 1996, 1997 and 1998, have been derived from the
consolidated financial statements of CCIC, which have been audited by KPMG LLP,
independent certified public accountants. The summary historical consolidated
financial and other data for CCIC set forth below for the six months ended June
30, 1998 and 1999, and as of June 30, 1999, have been derived from the
unaudited consolidated financial statements of CCIC, which include all
adjustments that CCIC considers necessary for a fair presentation of the
financial position and results of operations for those periods. Operating
results for the six months ended June 30, 1998 and 1999 are not necessarily
indicative of the results that may be expected for the entire year. The results
of operations for the six months ended June 30, 1999 are not comparable to the
six months ended June 30, 1998, the results for the year ended December 31,
1998 are not comparable to the year ended December 31, 1997, and the results
for the year ended December 31, 1997 are not comparable to the year ended
December 31, 1996 as a result of business acquisitions completed in 1997, 1998
and 1999. Results of operations of these acquired businesses are included in
CCIC's consolidated financial statements for the periods after the respective
dates of acquisition. The information set forth below should be read in
conjunction with the "Management's Discussion and Analysis of Financial
Condition and Results of Operations--Results of Operations--CCIC" section of
documents and the consolidated financial statements and related notes of CCIC
included in CCIC's Annual Report on Form 10-K and Quarterly Report on Form 10-Q
incorporated by reference in this prospectus.
Six Months Ended
Years Ended December 31, June 30,
---------------------------------- ------------------
1995 1996 1997 1998 1998 1999
------ ------ -------- -------- -------- --------
(Dollars in thousands, except per share amounts)
Statement of Operations
Data:
Net revenues:
Site rental and
broadcast
transmission.......... $4,052 $5,615 $ 11,010 $ 75,028 $ 10,448 $107,503
Network services and
other................. 6 592 20,395 38,050 12,919 25,133
------ ------ -------- -------- -------- --------
Total net revenues... 4,058 6,207 31,405 113,078 23,367 132,636
------ ------ -------- -------- -------- --------
Costs of operations:
Site rental and
broadcast
transmission.......... 1,226 1,292 2,213 26,254 2,418 45,084
Network services and
other................. -- 8 13,137 21,564 7,155 15,157
------ ------ -------- -------- -------- --------
Total costs of
operations.......... 1,226 1,300 15,350 47,818 9,573 60,241
------ ------ -------- -------- -------- --------
General and
administrative......... 729 1,678 6,824 23,571 8,768 17,542
Corporate
development(a)......... 204 1,324 5,731 4,625 2,022 2,940
Restructuring charges... -- -- -- -- -- 1,814
Non-cash compensation
charges(b)............. -- -- -- 12,758 -- 1,171
Depreciation and
amortization........... 836 1,242 6,952 37,239 7,695 49,519
------ ------ -------- -------- -------- --------
Operating income
(loss)................. 1,063 663 (3,452) (12,933) (4,691) (591)
Equity in earnings
(losses) of
unconsolidated
affiliate.............. -- -- (1,138) 2,055 525 --
Interest and other
income (expense)(c).... 53 193 1,951 4,220 1,370 4,879
Interest expense and
amortization of
deferred financing
costs.................. (1,137) (1,803) (9,254) (29,089) (10,027) (37,842)
------ ------ -------- -------- -------- --------
Loss before income
taxes, minority
interests and
cumulative effect of
change in accounting
principle.............. (21) (947) (11,893) (35,747) (12,823) (33,554)
Provision for income
taxes.................. -- (10) (49) (374) (209) (197)
Minority interests...... -- -- -- (1,654) -- (572)
------ ------ -------- -------- -------- --------
Loss before cumulative
effect of change in
accounting principle... (21) (957) (11,942) (37,775) (13,032) (34,323)
Cumulative effect of
change in accounting
principle for costs of
start-up activities.... -- -- -- -- -- (2,414)
------ ------ -------- -------- -------- --------
Net loss................ (21) (957) (11,942) (37,775) (13,032) (36,737)
Dividends on preferred
stock.................. -- -- (2,199) (5,411) (4,132) (13,022)
------ ------ -------- -------- -------- --------
Net loss after deduction
of dividends on
preferred stock........ $ (21) $ (957) $(14,141) $(43,186) $(17,164) $(49,759)
====== ====== ======== ======== ======== ========
Per common share--basic
and diluted:
Loss before cumulative
effect of change in
accounting
principle............. $(0.01) $(0.27) $ (2.27) $ (1.02) $ (1.57) $ (0.43)
Cumulative effect of
change in accounting
principle............. -- -- -- -- -- (0.02)
------ ------ -------- -------- -------- --------
Net loss............... $(0.01) $(0.27) $ (2.27) $ (1.02) $ (1.57) $ (0.45)
====== ====== ======== ======== ======== ========
22
Six Months Ended
Years Ended December 31, June 30,
----------------------------------------- --------------------
1995 1996 1997 1998 1998 1999
-------- -------- --------- ---------- -------- ----------
(Dollars in thousands)
Common shares
outstanding--basic and
diluted (in
thousands)............. 3,316 3,503 6,238 42,518 10,954 109,791
======== ======== ========= ========== ======== ==========
Other Data:
Site data (at period
end)(d):
Towers owned............ 126 155 240 1,344 361 4,837
Towers managed.......... 7 7 133 129 129 13
Rooftop sites managed
(revenue producing).... 41 52 80 135 66 146
-------- -------- --------- ---------- -------- ----------
Total sites owned and
managed................ 174 214 453 1,608 556 4,996
======== ======== ========= ========== ======== ==========
EBITDA(e)............... $ 1,899 $ 1,905 $ 3,500 $ 37,064 $ 3,004 $ 51,913
Capital expenditures.... 161 890 18,035 138,759 52,752 127,564
Summary cash flow
information:
Net cash provided by
(used for) operating
activities............ 1,672 (530) (624) 44,976 (1,972) 35,119
Net cash used for
investing activities.. (16,673) (13,916) (111,484) (149,248) (52,752) (671,864)
Net cash provided by
financing activities.. 15,597 21,193 159,843 345,248 50,904 1,047,687
Ratio of earnings to
fixed charges(f)....... -- -- -- -- -- --
Balance Sheet Data (at
period end):
Cash and cash
equivalents............ $ 596 $ 7,343 $ 55,078 $ 296,450 $ 705,924
Property and equipment,
net.................... 16,003 26,753 81,968 592,594 1,615,646
Total assets............ 19,875 41,226 371,391 1,523,230 3,029,094
Total debt.............. 11,182 22,052 156,293 429,710 1,194,681
Redeemable preferred
stock(g)............... 5,175 15,550 160,749 201,063 214,085
Total stockholders'
equity (deficit)....... 619 (210) 41,792 737,562 1,436,398
- --------
(a) Corporate development expenses represent costs incurred in connection with
acquisitions and development of new business initiatives. These expenses
consist primarily of allocated compensation, benefits and overhead costs
that are not directly related to the administration or management of
existing towers. For the year ended December 31, 1997, such expenses
include (1) nonrecurring cash bonuses of $0.9 million paid to certain
executive officers in connection with our initial investment in Castle
Transmission and (2) a nonrecurring cash charge of $1.3 million related to
our purchase of shares of our common stock from our former chief executive
officer for our initial Castle Transmission investment.
(b) Represents charges related to the issuance of stock options to certain
employees and executives.
(c) Includes a $1.2 million fee received in March 1997 as compensation for
leading an investment consortium that provided the equity financing for our
initial Castle Transmission investment.
(d) Represents our aggregate number of sites of CCIC as of the end of each
period.
(e) EBITDA is defined as operating income (loss) plus depreciation and
amortization, non-cash compensation charges and restructuring charges.
EBITDA is presented as additional information because management believes
it to be a useful indicator of our ability to meet debt service and capital
expenditure requirements. It is not, however, intended as an alternative
measure of operating results or cash flow from operations, as determined in
accordance with generally accepted accounting principles. Furthermore, our
measure of EBITDA may not be comparable to similarly titled measures of
other companies.
(f) For purposes of computing the ratio of earnings to fixed charges, earnings
represent income (loss) before income taxes, fixed charges and equity in
earnings (losses) of unconsolidated affiliate. Fixed charges consist of
interest expense, the interest component of operating leases and
amortization of deferred financing costs. For the years ended December 31,
1995, 1996, 1997 and 1998, earnings were insufficient to cover fixed
charges by $21,000, $0.9 million, $10.8 million and $37.8 million,
respectively. For the six months ended June 30, 1998 and 1999, earnings
were insufficient to cover fixed charges by $13.3 million and $33.6
million, respectively.
(g) The 1995, 1996 and 1997 amounts represent (1) the senior convertible
preferred stock we privately placed in August 1997 and October 1997, all of
which has been converted into shares of common stock, and (2) Series A
convertible preferred stock, Series B convertible preferred stock and the
Series C convertible preferred stock we privately placed in April 1995,
July 1996 and February 1997, respectively, all of which has been converted
into shares of common stock in connection with the completion of our
initial public offering in August 1998. The 1998 and 1999 amounts represent
our exchangeable preferred stock.
----------------
23
The selected quarterly historical consolidated financial data for CCIC set
forth below have been derived from the consolidated financial statements of
CCIC.
Three Months Ended
--------------------------------------------
March 31 June 30 September 30 December 31
-------- -------- ------------ -----------
(Dollars in
thousands, except per share amounts)
1997:
Net revenues...................... $ 1,994 $ 4,771 $ 11,481 $13,159
Gross profit(1)................... 1,731 2,258 5,648 6,418
Net loss......................... (443) (1,706) (4,001) (5,792)
Loss per common share--basic and
diluted......................... (0.13) (0.51) (0.62) (0.69)
1998:
Net revenues..................... $ 11,837 $ 11,530 $ 28,894 $60,817
Gross profit(1).................. 6,244 7,550 15,835 35,631
Net loss......................... (6,606) (6,426) (17,444) (7,299)
Loss per common share--basic and
diluted......................... (0.79) (0.78) (0.33) (0.09)
1999:
Net revenues..................... $ 55,109 $ 77,527
Gross profit(1).................. 29,600 42,795
Loss before cumulative effect of
change in accounting principle.. (13,473) (20,850)
Cumulative effect of change in
accounting principle............ (2,414) --
Net loss......................... (15,887) (20,850)
Per common share--basic and
diluted:
Loss before cumulative effect of
change in accounting
principle...................... (0.21) (0.22)
Cumulative effect of change in
accounting principle........... (0.03) --
Net loss........................ (0.24) (0.22)
- --------
(1) Represents net revenues less costs of operations.
24
THE EXCHANGE OFFER
Purpose of the Exchange Offer
In connection with the sale of the old notes, we entered into a registration
rights agreement with the initial purchasers, under which we agreed to use our
best efforts to file and have declared effective an exchange offer registration
statement under the Securities Act of 1933.
We are making the exchange offer in reliance on the position of the SEC as
set forth in certain no-action letters. However, we have not sought our own no-
action letter. Based upon these interpretations by the SEC, we believe that a
holder of new notes, but not a holder who is our "affiliate" within the meaning
of Rule 405 of the Securities Act of 1933, who exchanges old notes for new
notes in the exchange offer, generally may offer the new notes for resale, sell
the new notes and otherwise transfer the new notes without further registration
under the Securities Act of 1933 and without delivery of a prospectus that
satisfies the requirements of Section 10 of the Securities Act of 1933. This
does not apply, however, to a holder who is our "affiliate" within the meaning
of Rule 405 of the Securities Act of 1933. We also believe that a holder may
offer, sell or transfer the new notes only if the holder acquires the new notes
in the ordinary course of its business and is not participating, does not
intend to participate and has no arrangement or understanding with any person
to participate in a distribution of the new notes.
Any holder of the old notes using the exchange offer to participate in a
distribution of new notes cannot rely on the no-action letters referred to
above. This includes a broker-dealer that acquired old notes directly from us,
but not as a result of market-making activities or other trading activities.
Consequently, the holder must comply with the registration and prospectus
delivery requirements of the Securities Act of 1933 in the absence of an
exemption from such requirements.
Each broker-dealer that receives new notes for its own account in exchange
for old notes, as a result of market-making activities or other trading
activities, must acknowledge that it will deliver a prospectus in connection
with any resale of such new notes. This prospectus, as it may be amended or
supplemented from time to time, may be used by a broker-dealer in connection
with resales of new notes received in exchange for old notes where such old
notes were acquired by such broker-dealer as a result of market-making
activities or other trading activities. The letter of transmittal states that
by acknowledging and delivering a prospectus, a broker-dealer will not be
considered to admit that it is an "underwriter" within the meaning of the
Securities Act of 1933. We have agreed that for a period of 180 days after the
expiration date, we will make this prospectus available to broker-dealers for
use in connection with any such resale. See "Plan of Distribution".
Except as described above, this prospectus may not be used for an offer to
resell, resale or other retransfer of new notes.
The exchange offer is not being made to, nor will we accept tenders for
exchange from, holders of old notes in any jurisdiction in which the exchange
offer or the acceptance of it would not be in compliance with the securities or
blue sky laws of such jurisdiction.
Terms of the Exchange
Upon the terms and subject to the conditions of the exchange offer, we will
accept any and all old notes validly tendered prior to 5:00 p.m., New York City
time, on the expiration date. The date of acceptance for exchange of the old
notes, and completion of the exchange offer, is the exchange date, which will
be the first business day following the expiration date (unless extended as
described
25
in this document). We will issue, on or promptly after the exchange date, an
aggregate principal amount of up to $125,000,000 new cash-pay notes for a like
principal amount of outstanding old cash-pay notes and an aggregate principal
amount at maturity of up to $260,000,000 new discount notes for a like
principal amount at maturity of old discount notes, in each case tendered and
accepted in connection with the exchange offer. The new notes issued in
connection with the exchange offer will be delivered on the earliest
practicable date following the exchange date. Holders may tender some or all of
their old notes in connection with the exchange offer, but only in $1,000
increments of principal amount at maturity.
The terms of the new notes are identical in all material respects to the
terms of the old notes, except that the new notes have been registered under
the Securities Act of 1933 and are issued free from any covenant regarding
registration, including the payment of additional interest upon a failure to
file or have declared effective an exchange offer registration statement or to
complete the exchange offer by certain dates. The new notes will evidence the
same debt as the old notes and will be issued under the same indenture and
entitled to the same benefits under that indenture as the old notes being
exchanged. As of the date of this prospectus, $125,000,000 in aggregate
principal amount of our 9 1/2% Senior Notes Due 2011 and $260,000,000 principal
amount at maturity of our 11 1/4% Senior Discount Notes Due 2011 is
outstanding.
In connection with the issuance of the old notes, we arranged for the old
notes originally purchased by qualified institutional buyers to be issued and
transferable in book-entry form through the facilities of The Depository Trust
Company, acting as depositary. Except as described under "Description of
Notes--Book-Entry, Delivery and Form," the new notes will be issued in the form
of a global note registered in the name of DTC or its nominee and each
beneficial owner's interest in it will be transferable in book-entry form
through DTC. See "Description of Notes--Book-Entry, Delivery and Form."
Holders of old notes do not have any appraisal or dissenters' rights in
connection with the exchange offer. Old notes which are not tendered for
exchange or are tendered but not accepted in connection with the exchange offer
will remain outstanding and be entitled to the benefits of the indenture under
which they were issued, but will not be entitled to any registration rights
under the registration rights agreement.
We shall be considered to have accepted validly tendered old notes if and
when we have given oral or written notice to the exchange agent. The exchange
agent will act as agent for the tendering holders for the purposes of receiving
the new notes from us.
If any tendered old notes are not accepted for exchange because of an invalid
tender, the occurrence of certain other events described in this prospectus or
otherwise, we will return the old notes, without expense, to the tendering
holder as quickly as possible after the expiration date.
Holders who tender old notes will not be required to pay brokerage
commissions or fees or, subject to the instructions in the letter of
transmittal, transfer taxes on exchange of old notes in connection with the
exchange offer. We will pay all charges and expenses, other than certain
applicable taxes described below, in connection with the exchange offer. See
"--Fees and Expenses".
Expiration Date; Extensions; Amendments
The expiration date for the exchange offer is 5:00 p.m., New York City time,
on , 1999, unless extended by us in our sole discretion (but in no event to
a date later than , 1999), in which case the term "expiration date" shall
mean the latest date and time to which the exchange offer is extended.
We reserve the right, in our sole discretion:
. to delay accepting any old notes, to extend the offer or to terminate
the exchange offer if, in our reasonable judgment, any of the conditions
described below shall not have been
26
satisfied, by giving oral or written notice of the delay, extension or
termination to the exchange agent, or
. to amend the terms of the exchange offer in any manner.
If we amend the exchange offer in a manner that we consider material, we
will disclose such amendment by means of a prospectus supplement, and we will
extend the exchange offer for a period of five to ten business days.
If we determine to make a public announcement of any delay, extension,
amendment or termination of the exchange offer, we will do so by making a
timely release through an appropriate news agency.
Interest on the New Notes
Interest on the new cash-pay notes will accrue at the rate of 9 1/2% per
annum from the most recent date to which interest on the cash-pay notes has
been paid or, if no interest has been paid, from the date of the indenture
governing the cash-pay notes. Interest will be payable semiannually in arrears
on February 1 and August 1, commencing on February 1, 2000.
The accreted value of the new discount notes will be calculated from the
original date of issuance of the old discount notes. The new discount notes
will accrete daily at a rate of 11 1/4% per annum, compounded semiannually, to
an aggregate principal amount of $260,000,000 by August 1, 2004. Cash interest
will not accrue on the new discount notes prior to August 1, 2004. Thereafter,
cash interest on the new discount notes will accrue and be payable
semiannually in arrears on February 1 and August 1, commencing on February 1,
2005.
Conditions to the Exchange Offer
Despite any other term of the exchange offer, we will not be required to
accept for exchange, or exchange new notes for, any old notes and may
terminate the exchange offer as provided in this prospectus before the
acceptance of the old notes, if:
(1) any action or proceeding is instituted or threatened in any court or
by or before any governmental agency relating to the exchange offer
which, in our reasonable judgment, might materially impair our ability
to proceed with the exchange offer or materially impair the
contemplated benefits of the exchange offer to us, or any material
adverse development has occurred in any existing action or proceeding
relating to us or any of our subsidiaries;
(2) any change, or any development involving a prospective change, in our
business or financial affairs or any of our subsidiaries has occurred
which, in our reasonable judgment, might materially impair our ability
to proceed with the exchange offer or materially impair the
contemplated benefits of the exchange offer to us;
(3) any law, statute, rule or regulation is proposed, adopted or enacted,
which in our reasonable judgment, might materially impair our ability
to proceed with the exchange offer or materially impair the
contemplated benefits of the exchange offer to us; or
(4) any governmental approval has not been obtained, which approval we, in
our reasonable
discretion, consider necessary for the completion of the exchange offer
as contemplated by this prospectus.
The conditions listed above are for our sole benefit and may be asserted by
us regardless of the circumstances giving rise to any of these conditions. We
may waive these conditions in our reasonable discretion in whole or in part at
any time and from time to time. The failure by us at any time to exercise any
of the above rights shall not be considered a waiver of such right and such
right
27
shall be considered on ongoing right which may be asserted at any time and from
time to time.
If we determine in our reasonable discretion that any of the conditions are
not satisfied, we may:
(1) refuse to accept any old notes and return all tendered old notes to the
tendering holders,
(2) extend the exchange offer and retain all old notes tendered before the
expiration of the exchange offer, subject, however, to the rights of
holders to withdraw these old notes (See "--Withdrawal of Tenders"
below), or
(3) waive unsatisfied conditions relating to the exchange offer and accept
all properly tendered old notes which have not been withdrawn.
Procedures for Tendering
Unless the tender is being made in book-entry form, to tender in the exchange
offer, a holder must
.complete, sign and date the letter of transmittal, or a facsimile of it,
.have the signatures guaranteed if required by the letter of transmittal
and
. mail or otherwise deliver the letter of transmittal or the facsimile,
the old notes and any other required documents, to the exchange agent
prior to 5:00 p.m., New York City time, on the expiration date.
Any financial institution that is a participant in DTC's Book-Entry Transfer
Facility system may make book-entry delivery of the old notes by causing DTC to
transfer the old notes into the exchange agent's account. Although delivery of
old notes may be effected through book-entry transfer into the exchange agent's
account at DTC, the letter of transmittal (or facsimile), with any required
signature guarantees and any other required documents, must, in any case, be
transmitted to and received or confirmed by the exchange agent at its addresses
set forth under the caption "exchange agent" below, prior to 5:00 p.m., New
York City time, on the expiration date. Delivery of documents to DTC in
accordance with its procedures does not constitute delivery to the exchange
agent.
The tender by a holder of old notes will constitute an agreement between us
and the holder in accordance with the terms and subject to the conditions set
forth in this prospectus and in the letter of transmittal.
The method of delivery of old notes and the letter of transmittal and all
other required documents to the exchange agent is at the election and risk of
the holders. Instead of delivery by mail, we recommend that holders use an
overnight or hand delivery service. In all cases, holders should allow
sufficient time to assure delivery to the exchange agent before the expiration
date. No letter of transmittal of old notes should be sent to us. Holders may
request their respective brokers, dealers, commercial banks, trust companies or
nominees to effect the tenders for such holders.
Any beneficial owner whose old notes are registered in the name of a broker,
dealer, commercial bank, trust company or other nominee and who wishes to
tender should contact the registered holder promptly and instruct such
registered holder to tender on behalf of the beneficial owner. If the
beneficial owner wishes to tender on that owner's own behalf, the owner must,
prior to completing and executing the letter of transmittal and delivery of
such owner's old notes, either make appropriate arrangements to register
ownership of the old notes in the owner's name or obtain a properly completed
bond power from the registered holder. The transfer of registered ownership may
take considerable time.
Signature on a letter of transmittal or a notice of withdrawal, must be
guaranteed by an eligible guarantor institution within the meaning of Rule
17Ad-15 under the Securities Exchange Act of 1934, unless the old notes
tendered pursuant thereto are tendered:
. by a registered holder who has not completed the box entitled "Special
Payment Instructions" or "Special Delivery Instructions" on the letter
of transmittal, or
28
. for the account of an eligible guarantor institution.
In the event that signatures on a letter of transmittal or a notice of
withdrawal, are required to be guaranteed, such guarantee must be by:
. a member firm of a registered national securities exchange or of the
National Association of Securities Dealers, Inc.,
. a commercial bank or trust company having an office or correspondent in
the United States or
. an "eligible guarantor institution".
If the letter of transmittal is signed by a person other than the registered
holder of any old notes, the old notes must be endorsed by the registered
holder or accompanied by a properly completed bond power, in each case signed
or endorsed in blank by the registered holder.
If the letter of transmittal or any old notes or bond powers are signed or
endorsed by trustees, executors, administrators, guardians, attorney-in-fact,
officers of corporations or others acting in a fiduciary or representative
capacity, such persons should so indicate when signing, and unless waived by
us, submit evidence satisfactory to us of their authority to act in that
capacity with the letter of transmittal.
We will determine all questions as to the validity, form, eligibility
(including time of receipt) and acceptance and withdrawal of tendered old notes
in our sole discretion. We reserve the absolute right to reject any and all old
notes not properly tendered or any old notes whose acceptance by us would, in
the opinion of our U.S. counsel, be unlawful. We also reserve the right to
waive any defects, irregularities or conditions of tender as to any particular
old notes either before or after the expiration date. Our interpretation of the
terms and conditions of the exchange offer (including the instructions in the
letter of transmittal) will be final and binding, on all parties. Unless
waived, any defects or irregularities in connection with tenders of old notes
must be cured within a time period we will determine. Although we intend to
request the exchange agent to notify holders of defects or irregularities
relating to tenders of old notes, neither we, the exchange agent nor any other
person will have any duty or incur any liability for failure to give such
notification. Tenders of old notes will not be considered to have been made
until such defects or irregularities have been cured or waived. Any old notes
received by the exchange agent that are not properly tendered and as to which
the defects or irregularities have not been cured or waived will be returned by
the exchange agent to the tendering holders, unless otherwise provided in the
letter of transmittal, as soon as practicable following the expiration date.
In addition, we reserve the right, as set forth above under the caption
"Conditions to the Exchange Offer", to terminate the exchange offer.
By tendering, each holder represents to us, among other things, that:
. the new notes acquired in connection with the exchange offer are being
obtained in the ordinary course of business of the person receiving the
new notes, whether or not such person is the holder;
. neither the holder nor any such other person has an arrangement or
understanding with any person to participate in the distribution of such
new notes; and
. neither the holder nor any such other person is our "affiliate" (as
defined in Rule 405 under the Securities Act of 1933).
If the holder is a broker-dealer which will receive new notes for its own
account in exchange of old notes, it will acknowledge that it acquired such old
notes as the result of market-making activities or other trading activities and
it will deliver a prospectus in connection with any resale of such new notes.
See "Plan of Distribution".
29
Guaranteed Delivery Procedures
A holder who wishes to tender its old notes and:
--whose old notes are not immediately available;
--who cannot deliver the holder's old notes, the letter of transmittal or
any other required documents to the exchange agent prior to the expiration
date; or
--who cannot complete the procedures for book-entry transfer, before the
expiration date,
may effect a tender if:
--the tender is made through an eligible guarantor institution;
--before the expiration date, the exchange agent receives from the eligible
guarantor institution:
. a properly completed and duly executed notice of guaranteed delivery
by facsimile transmission, mail or hand delivery,
. the name and address of the holder,
. the certificate number(s) of the old notes and the principal amount
at maturity of old notes tendered, stating that the tender is being
made and guaranteeing that, within three New York Stock Exchange
trading days after the expiration date, the letter of transmittal
and the certificate(s) representing the old notes (or a confirmation
of book-entry transfer), and any other documents required by the
letter of transmittal will be deposited by the eligible guarantor
institution with the exchange agent; and
--the exchange agent receives, within three New York Stock Exchange trading
days after the expiration date, a properly completed and executed letter
of transmittal or facsimile, as well as the certificate(s) representing
all tendered old notes in proper form for transfer or a confirmation of
book-entry transfer, and all other documents required by the letter of
transmittal.
Withdrawal of Tenders
Except as otherwise provided herein, tenders of old notes may be withdrawn at
any time prior to 5:00 p.m., New York City time, on the expiration date.
To withdraw a tender of old notes in connection with the exchange offer, a
written facsimile transmission notice of withdrawal must be received by the
exchange agent at its address set forth herein prior to 5:00 p.m., New York
City time, on the expiration date. Any such notice of withdrawal must:
. specify the name of the person who deposited the old notes to be
withdrawn,
. identify the old notes to be withdrawn (including the certificate number
or numbers and principal amount at maturity of such old notes),
. be signed by the depositor in the same manner as the original signature
on the letter of transmittal by which such old notes were tendered
(including any required signature guarantees) or be accompanied by
documents of transfer sufficient to have the trustee register the
transfer of such old notes into the name of the person withdrawing the
tender, and
. specify the name in which any such old notes are to be registered, if
different from that of the depositor.
We will determine all questions as to the validity, form and eligibility
(including time of receipt) of such withdrawal notices. Any old notes so
withdrawn will be considered not to have been validly tendered for purposes of
the exchange offer and no new notes will be issued unless the old notes
30
withdrawn are validly re-tendered. Any old notes which have been tendered but
which are not accepted for exchange or which are withdrawn will be returned to
the holder without cost to such holder as soon as practicable after withdrawal,
rejection of tender or termination of the exchange offer. Properly withdrawn
old notes may be re-tendered by following one of the procedures described above
under the caption "Procedures for Tendering" at any time prior to the
expiration date.
Exchange Agent
United States Trust Company of New York has been appointed as exchange agent
in connection with the exchange offer. Questions and requests for assistance,
requests for additional copies of this prospectus or of the letter of
transmittal should be directed to the exchange agent, at its offices at 770
Broadway, 13th Floor, New York, NY 10003. The exchange agent's telephone number
is (800) 548-6565 and facsimile number is (212) 420-6152.
Fees and Expenses
We will not make any payment to brokers, dealers or others soliciting
acceptances of the exchange offer. We will pay certain other expenses to be
incurred in connection with the exchange offer, including the fees and expenses
of the exchange agent, accounting and certain legal fees.
Holders who tender their old notes for exchange will not be obligated to pay
any transfer taxes. If, however:
. new notes are to be delivered to, or issued in the name of, any person
other than the registered holder of the old notes tendered, or
. if tendered old notes are registered in the name of any person other than
the person signing the letter of transmittal, or
. if a transfer tax is imposed for any reason other than the exchange of
old notes in connection with the exchange offer,
then the amount of any such transfer taxes (whether imposed on the registered
holder or any other persons) will be payable by the tendering holder. If
satisfactory evidence of payment of such taxes or exemption from them is not
submitted with the letter of transmittal, the amount of such transfer taxes
will be billed directly to the tendering holder.
Accounting Treatment
The new notes will be recorded at the same carrying value as the old notes as
reflected in our accounting records on the date of the exchange. Accordingly,
we will not recognize any gain or loss for accounting purposes upon the
completion of the exchange offer. Any expenses of the exchange offer that we
paid will be charged against our additional paid-in capital in accordance with
generally accepted accounting principles.
Consequences of Failures to Properly Tender Old Notes in the Exchange
Issuance of the new notes in exchange for the old notes under the exchange
offer will be made only after timely receipt by the exchange agent of such old
notes, a properly completed and duly executed letter of transmittal and all
other required documents. Therefore, holders of the old notes desiring to
tender such old notes in exchange for new notes should allow sufficient time to
ensure timely delivery. We are under no duty to give notification of defects or
irregularities of tenders of old notes for exchange. Old notes that are not
tendered or that are tendered but we do not accept, will, following completion
of the exchange offer, continue to be subject to the existing restrictions upon
transfer thereof under the Securities Act of 1933, and, upon completion of the
exchange offer, certain registration rights under the registration rights
agreement will terminate.
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In the event the exchange offer is completed, we will not be required to
register the remaining old notes. Remaining old notes will continue to be
subject to the following restrictions on transfer:
. the remaining old notes may be resold only if registered pursuant to the
Securities Act of 1933, if any exemption from registration is available,
or if neither such registration nor such exemption is required by law,
and
. the remaining old notes will bear a legend restricting transfer in the
absence of registration or an exemption.
We do not currently anticipate that we will register the remaining old notes
under the Securities Act of 1933. To the extent that old notes are tendered and
accepted in connection with the exchange offer, any trading market for
remaining old notes could be adversely affected.
32
DESCRIPTION OF NOTES
General
You can find the definitions of certain terms used in the following summary
under the subheading "Certain Definitions." In this summary, the word "CCIC"
refers only to Crown Castle International Corp. and not to any of its
Subsidiaries.
The old cash-pay notes and the old discount notes were issued under two
separate indentures and the new cash-pay notes and new discount notes will be
issued under these same two indentures, in each case between CCIC and United
States Trust Company of New York, as trustee. The terms of the notes include
those stated in the applicable indenture and those made part of that indenture
by reference to the Trust Indenture Act of 1939, as amended. The new and old
cash-pay notes and the new and old discount notes will, in each case, be
identical in all material respects, except that the new notes have been
registered under the Securities Act of 1933 and are free of any obligation
regarding registration, including the payment of additional interest upon
failure to file or have declared effective an exchange offer registration
statement or to consummate an exchange offer by certain dates.
The following description is a summary of the material provisions of the
indentures and the registration rights agreement. It does not restate the
indentures or the registration rights agreement in their entirety. We urge you
to read the indentures and the registration rights agreement, because they, and
not this description, define your rights as Holders of the notes. A copy of the
indentures and the registration rights agreement is available as set forth
below under "--Additional Information."
Brief Description of the Notes
The cash-pay notes:
. are general obligations of CCIC;
. rank equally with all existing and future senior debt of CCIC,
including the discount notes;
. accrue interest from the date they are issued at a rate of 9 1/2%,
which is payable semiannually; and
. mature on August 1, 2011.
The discount notes:
. are general obligations of CCIC;
. rank equally with all existing and future senior debt of CCIC,
including the cash-pay notes;
. accrete in value, from the date the old discount notes were issued
through August 1, 2004, to their principal amount at maturity;
. accrue interest from August 1, 2004 at a rate of 11 1/4%, which is
payable semiannually; and
. mature on August 1, 2011.
CCIC has covenanted that it will offer to repurchase notes under the
circumstances described in the indentures upon:
. a Change of Control of CCIC; or
. an Asset Sale by CCIC or any of its Restricted Subsidiaries.
Each of the indentures governing the notes also contains the following
covenants:
. Restricted Payments;
. incurrence of Indebtedness and issuance of preferred stock;
. Liens;
33
. dividend and other payment restrictions affecting Subsidiaries;
. merger, consolidation or sale of assets;
. transactions with Affiliates;
. sale and leaseback transactions;
. limitation on issuances and sales of Capital Stock of Restricted
Subsidiaries;
. limitation on issuances of Guarantees of Indebtedness;
. Business Activities; and
. Reports.
The operations of CCIC are conducted through its Subsidiaries, and,
therefore, CCIC depends on the cash flow of its Subsidiaries to meet its
obligations, including its obligations under the notes. CCIC's Subsidiaries
will not be guarantors of the notes, and the notes will be effectively
subordinated to all Indebtedness, including all borrowings under the Senior
Credit Facility, the Bell Atlantic joint venture credit facility, the Castle
Transmission credit facility and the Castle Transmission bonds, and other
liabilities and commitments, including trade payables and lease obligations, of
CCIC's Subsidiaries. Any right of CCIC to receive assets of any of its
Subsidiaries upon the liquidation or reorganization of the Subsidiaries, and
the consequent right of the Holders of the notes to participate in those
assets, will be effectively subordinated to the claims of that Subsidiary's
creditors, except to the extent that CCIC is itself recognized as a creditor of
such Subsidiary. If CCIC is recognized as a creditor of such Subsidiary, the
claims of CCIC would still be subordinate in right of payment to any security
in the assets of that Subsidiary and any indebtedness of that Subsidiary senior
to that held by CCIC. As of March 31, 1999, after giving pro forma effect to
the proposed and recent transactions described in this prospectus, CCIC's
Subsidiaries would have had $498.7 million of Indebtedness outstanding, and
would have had $39.9 million, $6.2 million and $19.8 million of unused
borrowing availability, respectively, under the Senior Credit Facility, the
Bell Atlantic joint venture credit facility and the Castle Transmission credit
facility. The provisions of the Senior Credit Facility, the Bell Atlantic joint
venture credit facility, the Castle Transmission credit facility and the Castle
Transmission bonds contain substantial restrictions on the ability of those
Subsidiaries to dividend or distribute cash flow or assets to CCIC. See "Risk
Factors--As a Holding Company, We Require Dividends from Subsidiaries to Meet
Cash Requirements or Pay Dividends".
As of the date of the indentures, all of CCIC's Subsidiaries will be
Restricted Subsidiaries other than:
(1) CTSH and its subsidiaries; and
(2) Crown Castle Investment Corp. and Crown Castle Investment Corp. II
and their subsidiaries, through which CCIC holds its interest in the Bell
Atlantic joint venture.
However, under certain circumstances, CCIC will be able to designate current
or future Subsidiaries as Unrestricted Subsidiaries. Unrestricted Subsidiaries
will not be subject to many of the restrictive covenants set forth in the
indentures.
Principal, Maturity and Interest
Cash-pay Notes
The cash-pay notes were initially limited in aggregate principal amount to
$125.0 million. The indenture governing the cash-pay notes allows CCIC to issue
up to $75.0 million aggregate principal amount of cash-pay notes in addition to
that initial amount. However, the issuance of any of those additional notes
will be subject to CCIC's ability to incur indebtedness under the covenant
"Incurrence of Indebtedness and Issuance of Preferred Stock" and similar
restrictions in the instruments governing CCIC's other Indebtedness. Any such
additional notes will be treated as part of the same class and series as the
cash-pay notes for purposes of voting under the indenture
34
governing the cash-pay notes. Cash-pay notes will be issued in denominations of
$1,000 in principal amount at maturity and integral multiples of $1,000 in
principal amount at maturity.
The cash-pay notes will mature on August 1, 2011. Interest on the cash-pay
notes will accrue at the rate of 9 1/2% per annum and will be payable in U.S.
dollars semiannually in arrears on February 1 and August 1, commencing on
February 1, 2000. CCIC will make each interest payment to Holders of record on
the immediately preceding January 15 and July 15.
Interest on the cash-pay notes will accrue from the most recent date to which
interest has been paid or, if no interest has been paid, from the date of the
indenture governing the cash-pay notes. Interest will be computed on the basis
of a 360-day year comprised of twelve 30-day months.
Discount Notes
CCIC initially issued discount notes with an aggregate principal amount at
maturity of $260.0 million, which generated gross proceeds of approximately
$150.5 million. The indenture governing the discount notes allows CCIC to issue
up to an additional aggregate principal amount at maturity of $100.0 million
discount notes. The issuance of any of those additional notes will be subject
to CCIC's ability to incur indebtedness under the covenant "Incurrence of
Indebtedness and Issuance of Preferred Stock" and similar restrictions in the
instruments governing CCIC's other Indebtedness. Any such additional notes will
be treated as part of the same class and series as the discount notes for
purposes of voting under the indenture governing the discount notes. Discount
notes will be issued in denominations of $1,000 in principal amount at maturity
and integral multiples of $1,000 in principal amount at maturity.
The old discount notes were issued with original issue discount for U.S.
Federal income tax purposes. The new discount notes will bear the same amount
of original issue discount as the old discount notes.
The discount notes will mature on August 1, 2011. No cash interest will
accrue on the discount notes before August 1, 2004. The Accreted Value of the
discount notes will accrete, representing the amortization of original issue
discount, between the date of original issuance of the old discount notes and
August 1, 2004, on a semiannual bond equivalent basis using a 360-day year
comprised of twelve 30-day months such that the Accreted Value shall be equal
to the full principal amount of the discount notes on August 1, 2004, the Full
Accretion Date. The initial aggregate Accreted Value of the old discount notes
on the date of issuance was approximately $150.5 million, representing the
original price at which the old discount notes were initially offered.
Beginning on August 1, 2004, interest on the discount notes will accrue at the
rate of 11 1/4% per annum and will be payable in U.S. dollars semiannually in
arrears on February 1 and August 1, commencing on February 1, 2005. CCIC will
make each interest payment to Holders of record on the immediately preceding
January 15 and July 15.
Cash interest will accrue on the discount notes from the most recent date to
which interest has been paid or, if no interest has been paid, from the Full
Accretion Date. Interest will be computed on the basis of a 360-day year
comprised of twelve 30-day months.
Methods of Receiving Payments on the Notes
If a Holder has given wire transfer instructions to CCIC, CCIC will make all
payments of principal of, premium, if any, and interest and Special Interest,
if any, on that Holder's notes in accordance with those instructions. All other
payments on the notes will be made at the office or agency of the paying agent
and registrar for the notes within the City and State of New York unless CCIC
elects to make interest payments by check mailed to the Holders at their
address set forth in the register of Holders.
35
Paying Agent and Registrar for the Notes
The trustee under each of the indentures will act as the paying agent and
registrar for each series of notes. CCIC may change the paying agent or
registrar under either indenture without prior notice to the Holders of the
relevant series of notes, and CCIC or any of its Subsidiaries may act as paying
agent or registrar under either indenture.
Transfer and Exchange
A Holder may transfer or exchange notes in accordance with the applicable
indenture. The registrar and the trustee may require a Holder to furnish
appropriate endorsements and transfer documents in connection with a transfer
of notes. Holders will be required to pay all taxes due on transfer. CCIC is
not required to transfer or exchange any notes selected for redemption. Also,
CCIC is not required to transfer or exchange any notes for a period of 15 days
before a selection of notes to be redeemed.
Optional Redemption
Cash-pay Notes
During the first 36 months after the date of original issuance of the old
cash-pay notes, CCIC may on any one or more occasions redeem up to 35% of the
aggregate principal amount of cash-pay notes originally issued at a redemption
price of 109.50% of the principal amount of the cash-pay notes to be redeemed
on the redemption date with the net cash proceeds of one or more Public Equity
Offerings and/or Strategic Equity Investments; provided that:
(1) at least 65% of the aggregate principal amount of cash-pay notes
originally issued remains outstanding immediately after the occurrence of
such redemption, excluding notes held by CCIC or any of its Subsidiaries;
and
(2) the redemption occurs within 60 days of the date of the closing of
the Public Equity Offering or Strategic Equity Investment.
Except pursuant to the preceding paragraph, the cash-pay notes will not be
redeemable at CCIC's option prior to August 1, 2004. On or after August 1,
2004, CCIC may redeem all or a part of the cash-pay notes upon not less than 30
nor more than 60 days' notice, at the redemption prices expressed as
percentages of principal amount set forth below plus accrued and unpaid
interest and Special Interest, if any, on the cash-pay notes redeemed to the
applicable redemption date, subject to the right of Holders of record on the
relevant record date to receive interest due on the relevant interest payment
date, if redeemed during the twelve-month period beginning on August 1 of the
years indicated below:
Year Percentage
---- ----------
2004........................................ 104.750%
2005........................................ 103.167%
2006........................................ 101.583%
2007 and thereafter......................... 100.000%
Discount Notes
During the first 36 months after the date of original issuance of the old
discount notes, CCIC may on any one or more occasions redeem up to 35% of the
aggregate principal amount at maturity of the discount notes originally issued
at a redemption price of 111.25% of the Accreted Value of the discount notes to
be redeemed on the redemption date plus Special Interest, if any, with the net
cash proceeds of one or more Public Equity Offerings and/or Strategic Equity
Investments; provided that:
(1) at least 65% of the aggregate principal amount at maturity of
discount notes originally issued remains outstanding immediately after the
occurrence of such redemption, excluding notes held by CCIC or any of its
Subsidiaries; and
36
(2) the redemption occurs within 60 days of the date of the closing of
the Public Equity Offering or Strategic Equity Investment.
Except pursuant to the preceding paragraph, the discount notes will not be
redeemable at CCIC's option prior to August 1, 2004. On or after August 1,
2004, CCIC may redeem all or a part of the discount notes upon not less than 30
nor more than 60 days' notice, at the redemption prices expressed as
percentages of principal amount set forth below plus accrued and unpaid
interest and Special Interest, if any, on the discount notes redeemed to the
applicable redemption date, subject to the right of Holders of record on the
relevant record date to receive interest due on the relevant interest payment
date, if redeemed during the twelve-month period beginning on August 1 of the
years indicated below:
Year Percentage
---- ----------
2004........................................ 105.625%
2005........................................ 103.750%
2006........................................ 101.875%
2007 and thereafter......................... 100.000%
Selection and Notice
If less than all of the cash-pay notes or discount notes, as the case may be,
are to be redeemed at any time, the trustee under the applicable indenture will
select notes for redemption as follows:
(1) if the notes are listed on any national securities exchange, in
compliance with the requirements of the principal national securities
exchange, if any, on which the notes are listed; or
(2) if the notes are not listed on any national securities exchange, on a
pro rata basis, by lot or by such method as the trustee shall deem fair and
appropriate.
No notes of $1,000 of principal amount at maturity or less will be redeemed
in part. Notices of redemption will be mailed by first class mail at least 30
but not more than 60 days before the redemption date to each Holder of notes to
be redeemed at its registered address. Notices of redemption may not be
conditional.
If any note is to be redeemed in part only, the notice of redemption that
relates to such note shall state the portion of the principal amount of that
note to be redeemed. A new note in principal amount equal to the unredeemed
portion of the original note presented for redemption will be issued in the
name of the Holder thereof upon cancellation of the original note. Notes called
for redemption become due on the date fixed for redemption. On and after the
redemption date, interest ceases to accrue or accrete on notes or portions of
them called for redemption.
Mandatory Redemption
CCIC is not required to make mandatory redemption or sinking fund payments
with respect to the notes.
Repurchase at the Option of Holders
Change of Control
If a Change of Control occurs, each Holder of notes will have the right to
require CCIC to repurchase all or any part, equal to $1,000 or an integral
multiple of $1,000, of such Holder's notes pursuant to the offer described
below (the "Change of Control Offer"). The offer price in any Change of Control
Offer will be payable in cash and will be 101% of the aggregate principal
amount of any cash-pay notes repurchased and any discount notes repurchased
after the Full Accretion Date, in
37
each case plus accrued and unpaid interest and Special Interest on the notes,
if any (subject to the right of Holders of record on the relevant record date
to receive interest due on the relevant interest payment date), to the date of
purchase, and 101% of the Accreted Value of any discount notes purchased prior
to the Full Accretion Date (in either case, the "Change of Control Payment").
Within 30 days following any Change of Control, CCIC will mail a notice to each
Holder describing the transaction or transactions that constitute the Change of
Control and offering to repurchase notes on the date specified in the notice
(the "Change of Control Payment Date"). The Change of Control Payment Date will
be no earlier than 30 days and no later than 60 days from the date the notice
is mailed, pursuant to the procedures required by the applicable indenture and
described in such notice.
On the Change of Control Payment Date, CCIC will, to the extent lawful:
(1) accept for payment all notes or portions of the notes properly
tendered pursuant to the Change of Control Offer;
(2) deposit with the paying agent an amount equal to the Change of
Control Payment in respect of all notes or portions of notes properly
tendered; and
(3) deliver or cause to be delivered to the applicable trustee the notes
so accepted together with an officers' certificate stating the aggregate
principal amount of notes or portions of the notes being purchased by CCIC.
The paying agent will promptly mail to each Holder of notes properly tendered
the Change of Control Payment for such notes, and the applicable trustee will
promptly authenticate and mail, or cause to be transferred by book entry, to
each Holder a replacement note equal in principal amount to any unpurchased
portion of the notes surrendered, if any; provided that the new note will be in
a principal amount at maturity of $1,000 or an integral multiple of $1,000.
The Change of Control provisions described above will be applicable whether
or not any other provisions of the relevant indenture is applicable. CCIC will
comply with the requirements of Section 14(e) of the Securities Exchange Act of
1934 and any other securities laws or regulations to the extent those laws and
regulations are applicable to any Change of Control Offer. If the provisions of
any of the applicable securities laws or securities regulations conflict with
the provisions of the covenant described above, CCIC will comply with the
applicable securities laws and regulations and will not be deemed to have
breached its obligations under the covenant described above by virtue of the
compliance.
The Change of Control purchase feature is a result of negotiations between
CCIC and the initial purchasers of the old notes. Management has no present
intention to engage in a transaction involving a Change of Control, although it
is possible that CCIC would decide to do so in the future. Subject to the
limitations discussed below, CCIC could, in the future, enter into certain
transactions, including acquisitions, refinancings or other recapitalizations,
that would not constitute a Change of Control under the indentures, but that
could increase the amount of Indebtedness outstanding at such time or otherwise
affect CCIC's capital structure. Restrictions on the ability of CCIC to incur
additional Indebtedness are contained in the covenants described under "--
Certain Covenants--Incurrence of Indebtedness and Issuance of Preferred Stock,"
"--Certain Covenants--Liens" and "--Certain Covenants--Sale and Leaseback
Transactions." Such restrictions can only be waived with the consent of the
Holders of a majority in principal amount of the notes then outstanding. Except
for the limitations contained in the covenants, however, the indentures will
not contain any covenants or provisions that may afford Holders of the notes
protection in the event of certain highly leveraged transactions.
The credit facilities of CCIC's Subsidiaries limit CCIC's access to the cash
flow of those Subsidiaries and will, therefore, restrict CCIC's ability to
purchase any notes. Each of these credit facilities also provides that the
occurrence of certain change of control events with respect to CCIC
38
constitutes a default under that credit facility. In the event that a Change of
Control occurs at a time when CCIC's Subsidiaries are prohibited from making
distributions to CCIC to purchase notes, CCIC could cause its Subsidiaries to
seek the consent of the lenders under the credit facilities to allow the
distributions or could attempt to refinance the borrowings that contain the
prohibition. If CCIC does not obtain a consent or repay such borrowings, CCIC
will remain prohibited from purchasing notes. In this case, CCIC's failure to
purchase tendered notes would constitute an Event of Default under the
indentures which would, in turn, constitute a default under the credit
facilities. Future indebtedness of CCIC and its Subsidiaries may contain
prohibitions on the occurrence of certain events that would constitute a Change
of Control or require the indebtedness to be repurchased if a Change of Control
occurs. Moreover, the exercise by the Holders of their right to require CCIC to
repurchase the notes could cause a default under such indebtedness, even if the
Change of Control itself does not, due to the financial effect of such
repurchase on CCIC. Finally, CCIC's ability to pay cash to the Holders of notes
following the occurrence of a Change of Control may be limited by CCIC's then
existing financial resources, including its ability to access the cash flow of
its Subsidiaries. See "Risk Factors--As a Holding Company, We Require Dividends
from Subsidiaries to Meet Cash Requirements on Pay Dividends." There can be no
assurance that sufficient funds will be available when necessary to make any
required repurchases.
CCIC will not be required to make a Change of Control Offer upon a Change of
Control if a third party makes the Change of Control Offer in the manner, at
the times and otherwise in compliance with the requirements set forth in the
indentures applicable to a Change of Control Offer made by CCIC and purchases
all notes properly tendered and not withdrawn under such Change of Control
Offer. The provisions under the indentures relating to CCIC's obligation to
make an offer to repurchase the notes as a result of a Change of Control may be
waived or modified with the written consent of the Holders of a majority in
principal amount of the notes then outstanding.
The definition of Change of Control includes a phrase relating to the sale,
lease, transfer, conveyance or other disposition of "all or substantially all"
of the assets of CCIC and its Restricted Subsidiaries taken as a whole.
Although there is a developing body of case law interpreting the phrase
"substantially all," there is no precise established definition of the phrase
under applicable law. Accordingly, the ability of a Holder of notes to require
CCIC to repurchase the notes as a result of a sale, lease, transfer, conveyance
or other disposition of less than all of the assets of CCIC and its
Subsidiaries taken as a whole to another Person or group may be uncertain.
Asset Sales
CCIC will not, and will not permit any of its Restricted Subsidiaries to,
consummate an Asset Sale unless:
(1) CCIC (or the Restricted Subsidiary, as the case may be) receives
consideration at the time of the Asset Sale at least equal to the fair
market value of the assets or Equity Interests issued or sold or otherwise
disposed of;
(2) fair market value is determined by CCIC's board of directors and
evidenced by a resolution of its board of directors set forth in an
officers' certificate delivered to the trustee under the applicable
indenture; and
(3) except in the case of a Tower Asset Exchange, at least 75% of the
consideration received in such Asset Sale by CCIC or such Restricted
Subsidiary is in the form of cash or Cash Equivalents.
For purposes of this provision, each of the following shall be deemed to be
cash:
(a) any liabilities, as shown on CCIC's or such Restricted Subsidiary's
most recent balance sheet, of CCIC or any Restricted Subsidiary (other than
contingent liabilities and liabilities that
39
are by their terms subordinated to the notes or any guarantee of the notes)
that are assumed by the transferee of any assets pursuant to a customary
novation agreement that releases CCIC or the Restricted Subsidiary from
further liability; and
(b) any securities, notes or other obligations received by CCIC or any
Restricted Subsidiary from the transferee that are converted by CCIC or the
Restricted Subsidiary into cash within 20 days of the applicable Asset
Sale, to the extent of the cash received in that conversion.
Within 365 days after the receipt of any Net Proceeds from an Asset Sale, CCIC
or the Restricted Subsidiary may apply those Net Proceeds to:
(1) reduce Indebtedness under a Credit Facility;
(2) reduce other Indebtedness of any of CCIC's Restricted Subsidiaries;
(3) the acquisition of all or substantially all the assets of a Permitted
Business;
(4) the acquisition of Voting Stock of a Permitted Business from a Person
that is not a Subsidiary of CCIC; provided that, after giving effect to the
acquisition, CCIC or its Restricted Subsidiary owns a majority of the
Voting Stock of that business; or
(5) the making of a capital expenditure or the acquisition of other long-
term assets that are used or useful in a Permitted Business.
Pending the final application of any Net Proceeds, CCIC may temporarily
reduce revolving credit borrowings or otherwise invest the Net Proceeds in any
manner that is not prohibited by the applicable indenture.
Any Net Proceeds from Asset Sales that are not applied or invested as
provided in the preceding paragraph will be deemed to constitute "Excess
Proceeds." When the aggregate amount of Excess Proceeds exceeds $10.0 million,
CCIC will be required to make an offer to all Holders of notes and all holders
of other senior Indebtedness of CCIC containing provisions similar to those set
forth in the indentures relating to the notes with respect to offers to
purchase or redeem with the proceeds of sales of (an "Asset Sale Offer"), to
purchase the maximum principal amount (or accreted value, as applicable) of
notes and such other senior Indebtedness of CCIC that may be purchased out of
the Excess Proceeds. The offer price in any Asset Sale Offer will be payable in
cash and will be 100% of the principal amount of any cash-pay notes or discount
notes purchased after the Full Accretion Date, plus accrued and unpaid interest
to the date of purchase, or 100% of the Accreted Value of discount notes
purchased prior to the Full Accretion Date. In the case of any other senior
Indebtedness, the offer price will be 100% of the principal amount (or accreted
value, as applicable) of the Indebtedness plus accrued and unpaid interest
thereon and Special Interest, if any, to the date of purchase. Each Asset Sale
Offer will be made in accordance with the procedures set forth in the
indentures and the other senior Indebtedness of CCIC. If any Excess Proceeds
remain after consummation of an Asset Sale Offer, CCIC may use the remaining
Excess Proceeds for any purpose not otherwise prohibited by the indentures. If
the aggregate principal amount of notes and the other senior indebtedness of
CCIC tendered into the Asset Sale Offer exceeds the amount of Excess Proceeds,
the trustee will select the notes and such other senior Indebtedness to be
purchased on a pro rata basis. Upon completion of the Asset Sale Offer, the
amount of Excess Proceeds will be reset at zero.
Certain Covenants
Restricted Payments
CCIC will not, and will not permit any of its Restricted Subsidiaries to,
directly or indirectly:
(1) declare or pay any dividend or make any other payment or distribution
on account of CCIC's or any of its Restricted Subsidiaries' Equity
Interests (including, without limitation, any
40
payment in connection with any merger or consolidation involving CCIC or
any of its Restricted Subsidiaries) or to the direct or indirect holders of
CCIC's or any of its Restricted Subsidiaries' Equity Interests in their
capacity as such (other than dividends or distributions payable in Equity
Interests (other than Disqualified Stock) of CCIC or to CCIC or a
Restricted Subsidiary of CCIC);
(2) purchase, redeem or otherwise acquire or retire for value (including
without limitation, in connection with any merger or consolidation
involving CCIC) any Equity Interests of CCIC or any direct or indirect
parent of CCIC (other than any such Equity Interests owned by CCIC or any
of its Restricted Subsidiaries);
(3) make any payment on or with respect to, or purchase, redeem, defease
or otherwise acquire or retire for value any Indebtedness that is
subordinated to the notes, except a payment of interest or principal at
Stated Maturity; or
(4) make any Restricted Investment, (all such payments and other actions
set forth in these clauses (1) through (4) above, including those occuring
since the date of the Senior Discount Note Indenture, being collectively
referred to as "Restricted Payments"),
unless, at the time of and after giving effect to such Restricted Payment:
(1) no Default has occurred and is continuing or would occur as a
consequence of the Restricted Payment; and
(2) CCIC would have been permitted to incur at least $1.00 of additional
Indebtedness pursuant to the Debt to Adjusted Consolidated Cash Flow Ratio
test set forth in the first paragraph of the covenant described below under
the caption "--Incurrence of Indebtedness and Issuance of Preferred Stock";
provided that CCIC and its Restricted Subsidiaries will not be required to
comply with this clause (2) in order to make any Restricted Investment; and
(3) such Restricted Payment, together with the aggregate amount of all
other Restricted Payments made by CCIC and its Restricted Subsidiaries
after the date of the Senior Discount Note Indenture (excluding Restricted
Payments permitted by clauses (2), (3) and (4) of the paragraph of
exceptions below), is less than the sum, without duplication, of:
(a) 100% of the Consolidated Cash Flow of CCIC for the period (taken
as one accounting period) from the beginning of the fiscal quarter
during which the Senior Discount Note Indenture was executed to the end
of CCIC's most recently ended fiscal quarter for which internal
financial statements are available at the time of such Restricted
Payment (or, if the Consolidated Cash Flow for such period is a
deficit, less 100% of the deficit), less 1.75 times the Consolidated
Interest Expense of CCIC since the beginning of the fiscal quarter
during which the Senior Discount Note Indenture was executed; plus
(b) 100% of the aggregate net cash proceeds received by CCIC since
the beginning of the fiscal quarter during which the Senior Discount
Note Indenture was executed as a contribution to its common equity
capital or from the issue or sale of Equity Interests of CCIC (other
than Disqualified Stock and except to the extent such net cash proceeds
are used to incur new Indebtedness outstanding pursuant to clause (11)
of the second paragraph of the covenant described below under the
caption "Incurrence of Indebtedness
and Issuance of Preferred Stock") or from the issue or sale of
Disqualified Stock or debt securities of CCIC that have been converted
into Equity Interests (other than Equity Interests (or Disqualified
Stock or convertible debt securities) sold to a Subsidiary of CCIC and
other than Disqualified Stock or convertible debt securities that have
been converted into Disqualified Stock); plus
41
(c) to the extent that any Restricted Investment that was made after
the date of the Senior Discount Note Indenture is sold for cash or
otherwise liquidated or repaid for cash, the lesser of:
(A) the cash return of capital with respect to the Restricted
Investment (less the cost of disposition, if any), and
(B) the initial amount of the Restricted Investment; plus
(d) to the extent that any Unrestricted Subsidiary of CCIC and all of
its Subsidiaries are designated as Restricted Subsidiaries after the
date of the Senior Discount Note Indenture, the lesser of:
(A) the fair market value of CCIC's Investments in such
Subsidiaries as of the date of such designation, or
(B) the sum of:
(x) the fair market value of CCIC's Investments in such
Subsidiaries as of the date on which such Subsidiaries were
originally designated as Unrestricted Subsidiaries, and
(y) the amount of any Investments made in such Subsidiaries
subsequent to such designation (and treated as Restricted
Payments) by CCIC or any Restricted Subsidiary; provided that:
(i) in the event the Unrestricted Subsidiaries designated
as Restricted Subsidiaries are CTSH and its Subsidiaries, the
references in clauses (A) and (B) of this clause (d) to fair
market value of CCIC's Investments in such Subsidiaries shall
mean the amount by which the fair market value of all such
Investments exceeds 34.3% of the fair market value of CTSH
and its Subsidiaries as a whole; and
(ii) in the event the Unrestricted Subsidiaries designated
as Restricted Subsidiaries are CCA Investment Corp. and its
Subsidiaries, the references in clauses (A) and (B) of this
clause (d) to fair market value of CCIC's Investments in such
Subsidiaries shall mean the amount by which the fair market
value of all such Investments exceeds $250.0 million; plus
(e) 50% of any dividends received by CCIC or a Restricted Subsidiary
after the date of the Senior Discount Note Indenture from an
Unrestricted Subsidiary of CCIC, to the extent that such dividends were
not otherwise included in Consolidated Net Income of CCIC for such
period.
The preceding provisions will not prohibit:
(1) the payment of any dividend within 60 days after the date of
declaration of that dividend, if at said date of declaration such payment
would have complied with the provisions of the indentures;
(2) the making of any Investment or the redemption, repurchase,
retirement, defeasance or other acquisition of any subordinated
Indebtedness or Equity Interests of CCIC in exchange for, or out of the net
cash proceeds from the sale since the beginning of the fiscal quarter
during which the Senior Discount Note Indenture was executed (other than to
a Subsidiary of CCIC) of
42
Equity Interests of CCIC (other than any Disqualified Stock); provided that
the net cash proceeds are not used to incur new Indebtedness pursuant to
clause (11) of the second paragraph of the covenant described below under
the caption "-- Incurrence of Indebtedness and Issuance of Preferred
Stock"; and provided further that, in each case, the amount of any net cash
proceeds that are so utilized will be excluded from clause (3)(b) of the
preceding paragraph;
(3) the defeasance, redemption, repurchase or other acquisition of
subordinated Indebtedness with the net cash proceeds from an incurrence of
Permitted Refinancing Indebtedness;
(4) the payment of any dividend by a Restricted Subsidiary of CCIC to the
Holders of its Equity Interests on a pro rata basis;
(5) the repurchase, redemption or other acquisition or retirement for
value of any Equity Interests of CCIC or any Restricted Subsidiary of CCIC
held by any member of CCIC's (or any of its Restricted Subsidiaries')
management pursuant to any management equity subscription agreement or
stock option agreement in effect as of the date of the Senior Discount Note
Indenture; provided that the aggregate price paid for all of the
repurchased, redeemed, acquired or retired Equity Interests may not exceed:
(a) $500,000 in any twelve-month period, and
(b) $5.0 million in the aggregate; or
(6) the payment of scheduled dividends on CCIC's 12 3/4% Senior
Exchangeable Preferred Stock due 2010, whether paid in cash or in kind
through the issuance of additional shares of such preferred stock, all in
accordance with the certificate of designations governing such preferred
stock as in effect on the date of the Senior Discount Note Indenture.
The board of directors of CCIC may designate any Restricted Subsidiary to be
an Unrestricted Subsidiary if such designation would not cause a Default. For
purposes of making such determination, all outstanding Investments by CCIC and
its Restricted Subsidiaries (except to the extent repaid in cash) in the
Subsidiary so designated will be deemed to be Restricted Payments at the time
of the designation and will reduce the amount available for Restricted Payments
under the first paragraph of this covenant. All of those outstanding
Investments will be deemed to constitute Investments in an amount equal to the
fair market value of the Investments at the time of such designation. Such
designation will only be permitted if the Restricted Payment would be permitted
at the time and if the Restricted Subsidiary otherwise meets the definition of
an Unrestricted Subsidiary. The board of directors of CCIC may designate any
Unrestricted Subsidiary to be a Restricted Subsidiary if the designation would
not cause a Default.
The amount of all Restricted Payments (other than cash) will be the fair
market value on the date of the Restricted Payment of the assets or securities
proposed to be transferred or issued by CCIC or the applicable Restricted
Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair
market value of any property, assets or Investments required by this covenant
to be valued will be valued by the board of directors of CCIC whose resolution
with respect to the determination will be delivered to the trustee.
Incurrence of Indebtedness and Issuance of Preferred Stock
CCIC will not, and will not permit any of its Restricted Subsidiaries to,
directly or indirectly, create, incur, issue, assume, guarantee or otherwise
become directly or indirectly liable, contingently or otherwise, with respect
to (collectively, "incur") any Indebtedness (including Acquired Debt) and that
CCIC will not issue any Disqualified Stock and will not permit any of its
Restricted Subsidiaries
43
to issue any shares of preferred stock; provided that CCIC may incur
Indebtedness (including Acquired Debt) or issue shares of Disqualified Stock
and CCIC's Restricted Subsidiaries may incur Indebtedness (including Acquired
Debt) or issue preferred stock if, in each case, CCIC's Debt to Adjusted
Consolidated Cash Flow Ratio at the time of incurrence of the Indebtedness or
the issuance of the preferred stock, after giving pro forma effect to such
incurrence or issuance as of such date and to the use of proceeds from such
incurrence or issuance as if the same had occurred at the beginning of the most
recently ended four full fiscal quarter period of CCIC for which internal
financial statements are available, would have been no greater than 7.5 to 1.
The first paragraph of this covenant will not prohibit the incurrence of any
of the following items of Indebtedness or to the issuance of any of the
following items of Disqualified Stock or preferred stock (collectively,
"Permitted Debt"):
(1) the incurrence by CCIC or any of its Restricted Subsidiaries of
Indebtedness under Credit Facilities in an aggregate principal amount (with
letters of credit being deemed to have a principal amount equal to the
maximum potential liability of CCIC and its Restricted Subsidiaries
thereunder) at any one time outstanding not to exceed the product of
$150,000 times the number of Completed Towers on the date of such
incurrence;
(2) the incurrence by CCIC and its Restricted Subsidiaries of the
Existing Indebtedness;
(3) the incurrence by CCIC of the Indebtedness represented by the cash-
pay notes and the discount notes issued on the date of the Senior Discount
Note Indenture;
(4) the issuance by CCIC of additional shares of its 12 3/4% Senior
Exchangeable Preferred Stock due 2010 solely for the purpose of paying
dividends thereon and the incurrence by CCIC of Indebtedness represented by
CCIC's 12 3/4% Senior Subordinated Exchange Debentures due 2010;
(5) the incurrence by CCIC or any of its Restricted Subsidiaries of
Indebtedness represented by Capital Lease Obligations, mortgage financings
or purchase money obligations, in each case incurred for the purpose of
financing all or any part of the purchase price or costof construction or
improvement of property, plant or equipment used in the business of CCIC or
such Restricted Subsidiary, in an aggregate principal amount, including all
Permitted Refinancing Indebtedness incurred to refund, refinance or replace
any other Indebtedness incurred pursuant to this clause (5), not to exceed
$10.0 million at any one time outstanding;
(6) the incurrence by CCIC or any of its Restricted Subsidiaries of
Permitted Refinancing Indebtedness in exchange for, or the net proceeds of
which are used to extend, refinance, renew, replace, defease or refund
Indebtedness of CCIC or any of its Restricted Subsidiaries or Disqualified
Stock of CCIC (other than intercompany Indebtedness) that was permitted by
the indentures to be incurred under the first paragraph of this covenant or
clauses (2), (3), (4), (5) or this clause (6) of this paragraph;
(7) the incurrence by CCIC or any of its Restricted Subsidiaries of
intercompany Indebtedness between or among CCIC and any of its Restricted
Subsidiaries; provided, however, that:
(i) if CCIC is the obligor on such Indebtedness, such Indebtedness is
expressly subordinated to the prior payment in full in cash of all
Obligations with respect to the notes of such series and that:
(A) any subsequent issuance or transfer of Equity Interests that
results in any such Indebtedness being held by a Person other than
CCIC or a Restricted Subsidiary, and
44
(B) any sale or other transfer of any such Indebtedness to a
Person that is not either CCIC or a Restricted Subsidiary shall be
deemed, in each case, to constitute an incurrence of the
Indebtedness by CCIC or the Restricted Subsidiary, as the case may
be;
(8) the incurrence by CCIC or any of its Restricted Subsidiaries of
Hedging Obligations that are incurred for the purpose of fixing or hedging
interest rate risk with respect to any floating rate Indebtedness that is
permitted by the terms of the indentures to be outstanding or currency
exchange risk;
(9) the guarantee by CCIC or any of its Restricted Subsidiaries of
Indebtedness of CCIC or a Restricted Subsidiary of CCIC that was permitted
to be incurred by another provision of the indentures;
(10) the incurrence by CCIC or any of its Restricted Subsidiaries of
Acquired Debt in connection with the acquisition of assets or a new
Subsidiary and the incurrence by CCIC's Restricted Subsidiaries of
Indebtedness as a result of the designation of an Unrestricted Subsidiary
as a Restricted Subsidiary; provided that, in the case of any such
incurrence of Acquired Debt, such Acquired Debt was incurred by the prior
owner of such assets or such Restricted Subsidiary prior to such
acquisition by CCIC or one of its Restricted Subsidiaries and was not
incurred in connection with, or in contemplation of, the acquisition by
CCIC or one of its Restricted Subsidiaries; and provided further that, in
the case of any incurrence pursuant to this clause (10), as a result of
such acquisition by CCIC or one of its Restricted Subsidiaries, CCIC's Debt
to Adjusted Consolidated Cash Flow Ratio at the time of incurrence of such
Acquired Debt, after giving pro forma effect to such incurrence as if the
same had occurred at the beginning of the most recently ended four full
fiscal quarter period of CCIC for which internal financial statements are
available, would have been less than CCIC's Debt to Adjusted Consolidated
Cash Flow Ratio for the same period without giving pro forma effect to such
incurrence;
(11) the incurrence by CCIC or any of its Restricted Subsidiaries of
Indebtedness or Disqualified Stock not to exceed, at any one time
outstanding, the sum of:
(i) 2.0 times the aggregate net cash proceeds, plus
(ii) 1.0 times the fair market value of non-cash proceeds (evidenced
by a resolution of the board of directors of CCIC set forth in an
officers' certificate delivered to the trustee),
in each case, from the issuance and sale, other than to a Subsidiary,
of Equity Interests (other than Disqualified Stock) of CCIC since the
beginning of the fiscal quarter during which the Senior Discount Note
Indenture was executed (less the amount of such proceeds used to make
Restricted Payments as provided in clause (3)(b) of the first paragraph
or clause (2) of the second paragraph of the covenant described above
under the caption "--Restricted Payments"); and
(12) the incurrence by CCIC or any of its Restricted Subsidiaries of
additional Indebtedness and/or the issuance by CCIC of Disqualified Stock
in an aggregate principal amount, accreted value or liquidation preference,
as applicable, at any time outstanding, not to exceed $25.0 million.
The indentures also provide that:
(1) CCIC will not incur any Indebtedness that is contractually
subordinated in right of payment to any other Indebtedness of CCIC unless
such Indebtedness is also contractually subordinated in right of payment to
the notes on substantially identical terms; provided,
45
however, that no Indebtedness of CCIC will be deemed to be contractually
subordinated in right of payment to any other Indebtedness of CCIC solely
by virtue of being unsecured; and
(2) CCIC will not permit any of its Unrestricted Subsidiaries to incur
any Indebtedness other than Non-Recourse Debt.
For purposes of determining compliance with this covenant, in the event that
an item of Indebtedness meets the criteria of more than one of the categories
of Permitted Debt described in clauses (1) through (12) above or is entitled to
be incurred pursuant to the first paragraph of this covenant, CCIC will, in its
sole discretion, classify (or later reclassify in whole or in part) such item
of Indebtedness in any manner that complies with this covenant. Accrual of
interest, accretion or amortization of original issue discount and the payment
of interest in the form of additional Indebtedness will not be deemed to be an
incurrence of Indebtedness for purposes of this covenant. Indebtedness under
Credit Facilities outstanding on the date of the indentures shall be deemed to
have been incurred on such date in reliance on the exception provided by clause
(1) of the definition of Permitted Debt. The notes issued on the date of the
indentures shall be deemed to have been incurred on such date in reliance on
the exception provided by clause (11) of the definition of Permitted Debt and
the new notes to be issued in the exchange offer in exchange for these notes
will be deemed to be a Permitted Refinancing under such clause (11).
Liens
CCIC will not, and will not permit any of its Restricted Subsidiaries to,
directly or indirectly, create, incur, assume or suffer to exist any Lien
securing Indebtedness or trade payables on any asset now owned or hereafter
acquired, or any income or profits therefrom or assign or convey any right to
receive income therefrom, except Permitted Liens.
Dividend and Other Payment Restrictions Affecting Subsidiaries
CCIC will not, and will not permit any of its Restricted Subsidiaries to,
directly or indirectly, create or otherwise cause or suffer to exist or become
effective any encumbrance or restriction on the ability of any Restricted
Subsidiary to:
(1) pay dividends or make any other distributions to CCIC or any of its
Restricted Subsidiaries on its Capital Stock or with respect to any other
interest or participation in, or measured by, its profits;
(2) pay any indebtedness owed to CCIC or any of its Restricted
Subsidiaries;
(3) make loans or advances to CCIC or any of its Restricted Subsidiaries;
or
(4) transfer any of its properties or assets to CCIC or any of its
Restricted Subsidiaries.
However, the preceding restrictions will not apply to encumbrances or
restrictions existing under or by reason of:
(1) Existing Indebtedness as in effect on the date of the indentures, and
any amendments, modifications, restatements, renewals, increases,
supplements, refundings, replacements or refinancings thereof; provided
that such amendments, modifications, restatements, renewals, increases,
supplements, refundings, replacements or refinancings are no more
restrictive, taken as a whole, with respect to such dividend and other
payment restrictions than those contained in the applicable series of
Existing Indebtedness as in effect on the date of the indentures;
(2) Indebtedness of any Restricted Subsidiary under any Credit Facility
that is permitted to be incurred pursuant to the covenant under the caption
"Incurrence of Indebtedness and Issuance of Preferred Stock"; provided that
such Credit Facility and Indebtedness contain only
46
such encumbrances and restrictions on such Restricted Subsidiary's ability
to engage in the activities set forth in clauses (1) through (4) of the
preceding paragraph as are, at the time such Credit Facility is entered
into or amended, modified, restated, renewed, increased, supplemented,
refunded, replaced or refinanced, ordinary and customary for a Credit
Facility of that type as determined in the good faith judgment of CCIC's
board of directors (and evidenced in a board resolution), which
determination shall be conclusively binding;
(3) encumbrances and restrictions applicable to any Unrestricted
Subsidiary, as the same are in effect as of the date on which the
Subsidiary becomes a Restricted Subsidiary, and as the same may be amended,
modified, restated, renewed, increased, supplemented, refunded, replaced or
refinanced; provided that such amendments, modifications, restatements,
renewals, increases, supplements, refundings, replacement or refinancings
are no more restrictive, taken as a whole, with respect to the dividend and
other payment restrictions than those contained in the applicable series of
Indebtedness of such Subsidiary as in effect on the date on which such
Subsidiary becomes a Restricted Subsidiary;
(4) any Indebtedness incurred in compliance with the covenant under the
heading "--Incurrence of Indebtedness and Issuance of Preferred Stock" or
any agreement pursuant to which such Indebtedness is issued if the
encumbrance or restriction applies only in the event of a payment default
or default with respect to a financial covenant contained in the
Indebtedness or agreement and the encumbrance or restriction is not
materially more disadvantageous to the Holders of the notes than is
customary in comparable financings (as determined by CCIC) and CCIC
determines that any such encumbrance or restriction will not materially
affect CCIC's ability to pay interest or principal on the notes;
(5) the indentures governing the notes;
(6) applicable law;
(7) any instrument governing Indebtedness or Capital Stock of a Person
acquired by CCIC or any of its Restricted Subsidiaries as in effect at the
time that Person is acquired by CCIC (except to the extent the Indebtedness
was incurred in connection with or in contemplation of the acquisition),
which encumbrance or restriction is not applicable to any Person, or the
properties or assets of any Person, other than the Person, or the property
or assets of the Person, so acquired, provided that, in the case of
Indebtedness, the Indebtedness was permitted by the terms of the indenture
to be incurred;
(8) customary non-assignment provisions in leases or licenses entered
into in the ordinary course of business;
(9) purchase money obligations for property acquired in the ordinary
course of business that impose restrictions of the nature described in
clause (5) in the second paragraph of the covenant described above under
the caption "Incurrence of Indebtedness and Issuance of Preferred Stock" on
the property so acquired;
(10) the provisions of agreements governing Indebtedness incurred
pursuant to clause (4) of the second paragraph of the covenant described
above under the caption "--Incurrence of Indebtedness and Issuance of
Preferred Stock";
(11) any agreement for the sale of a Restricted Subsidiary that restricts
that Restricted Subsidiary pending its sale;
(12) Permitted Refinancing Indebtedness, provided that the restrictions
contained in the agreements governing the Permitted Refinancing
Indebtedness are no more restrictive, taken as a whole, than those
contained in the agreements governing the Indebtedness being refinanced;
47
(13) Liens permitted to be incurred pursuant to the provisions of the
covenant described under the caption "Liens" that limit the right of the
debtor to transfer the assets subject to such Liens;
(14) provisions with respect to the disposition or distribution of assets
or property in joint venture agreements and other similar agreements; and
(15) restrictions on cash or other deposits or net worth imposed by
customers under contracts entered into in the ordinary course of business.
Merger, Consolidation or Sale of Assets
CCIC may not:
(1) consolidate or merge with or into (whether or not CCIC is the
surviving corporation), or
(2) sell, assign, transfer, lease, convey or otherwise dispose of all or
substantially all of its properties or assets in one or more related
transactions, to another corporation, Person or entity, unless:
(a) either:
(A) CCIC is the surviving corporation, or
(B) the entity or the Person formed by or surviving any such
consolidation or merger (if other than CCIC) or to which the sale,
assignment, transfer, lease, conveyance or other disposition shall
have been made is a corporation organized or existing under the laws
of the United States, any state thereof or the District of Columbia;
(b) the entity or Person formed by or surviving any such
consolidation or merger (if other than CCIC) or the entity or Person to
which the sale, assignment, transfer, lease, conveyance or other
disposition shall have been made assumes all the obligations of CCIC
under the notes and the indenture pursuant to a supplemental indenture
in a form reasonably satisfactory to the trustee;
(c) immediately after such transaction no Default exists; and
(d) except in the case of:
(A) a merger of CCIC with or into a Wholly Owned Restricted
Subsidiary of CCIC, and
(B) a merger entered into solely for the purpose of
reincorporating CCIC in another jurisdiction:
(x) in the case of a merger or consolidation in which CCIC is
the surviving corporation, CCIC's Debt to Adjusted Consolidated
Cash Flow Ratio at the time of the transaction, after giving pro
forma effect to the transaction as of such date for balance
sheet purposes and as if the transaction had occurred at the
beginning of the most recently ended four full fiscal quarter
period of CCIC for which internal financial statements are
available for income statement purposes, would have been less
than CCIC's Debt to Adjusted Consolidated Cash Flow Ratio for
the same period without giving pro forma effect to such
transaction, or
(y) in the case of any other such transaction, the Debt to
Adjusted Consolidated Cash Flow of the entity or Person formed
by or surviving any such consolidation or merger (if other than
CCIC), or to which the sale, assignment,
48
transfer, lease, conveyance or other disposition shall have been
made, at the time of the transaction, after giving pro forma
effect to the transaction as of such date for balance sheet
purposes and as if such transaction had occurred at the
beginning of the most recently ended four full fiscal quarter
period of such entity or Person for which internal financial
statements are available for income statement purposes, would
have been less than CCIC's Debt to Adjusted Consolidated Cash
Flow Ratio for the same period without giving pro forma effect
to such transaction; provided that for purposes of determining
the Debt to Adjusted Consolidated Cash Flow Ratio of any entity
or Person for purposes of this clause (y) the entity or Person
will be substituted for CCIC in the definition of Debt to
Adjusted Consolidated Cash Flow Ratio and the defined terms
included therein under the caption "--Certain Definitions".
Transactions with Affiliates
CCIC will not, and will not permit any of its Restricted Subsidiaries to,
make any payment to, or sell, lease, transfer or otherwise dispose of any of
its properties or assets to, or purchase any property or assets from, or enter
into or make or amend any transaction, contract, agreement, understanding,
loan, advance or guarantee with, or for the benefit of, any Affiliate (each of
the foregoing, an "Affiliate Transaction"), unless:
(1) such Affiliate Transaction is on terms that are no less favorable to
CCIC or the relevant Restricted Subsidiary than those that would have been
obtained in a comparable transaction by CCIC or such Restricted Subsidiary
with an unrelated Person; and
(2) CCIC delivers to the trustee:
(a) with respect to any Affiliate Transaction or series of related
Affiliate Transactions involving aggregate consideration in excess of
$1.0 million, a resolution of the board of directors of CCIC set forth
in an officers' certificate certifying that the Affiliate Transaction
complies with clause (1) above and that the Affiliate Transaction has
been approved by a majority of the disinterested members of the board
of directors of CCIC; and
(b) with respect to any Affiliate Transaction or series of related
Affiliate Transactions involving aggregate consideration in excess of
$10.0 million, an opinion as to the fairness to the Holders of the
Affiliate Transaction from a financial point of view issued by an
accounting, appraisal or investment banking firm of national standing.
Notwithstanding the foregoing, the following items will not be deemed to be
Affiliate Transactions:
(1) any employment arrangements with any executive officer of CCIC or a
Restricted Subsidiary that is entered into by CCIC or any of its Restricted
Subsidiaries in the ordinary course of business and consistent with
compensation arrangements of similarly situated executive officers at
comparable companies engaged in Permitted Businesses;
(2) transactions between or among CCIC and/or its Restricted
Subsidiaries;
(3) payment of directors' fees in an aggregate annual amount not to
exceed $25,000 per Person;
(4) Restricted Payments that are permitted by the provisions of the
indentures described above under the caption "--Restricted Payments";
(5) the issuance or sale of Equity Interests (other than Disqualified
Stock) of CCIC; and
49
(6) transactions pursuant to the provisions of the governance agreement,
the rights agreement, the stockholders' agreement, the CTSH shareholders'
agreement, the CTI services agreement, the CTI operating agreement and the
Crown transition agreements, as the same are in effect on the date of the
indentures.
Sale and Leaseback Transactions
CCIC will not, and will not permit any of its Restricted Subsidiaries to,
enter into any sale and leaseback transaction; provided that CCIC or any of its
Restricted Subsidiaries may enter into a sale and leaseback transaction if:
(1) CCIC or such Restricted Subsidiary, as applicable, could have:
(a) incurred Indebtedness in an amount equal to the Attributable Debt
relating to such sale and leaseback transaction pursuant to the Debt to
Adjusted Consolidated Cash Flow Ratio test set forth in the first
paragraph of the covenant described above under the caption "--
Incurrence of Indebtedness and Issuance of Preferred Stock";
(b) incurred a Lien to secure such Indebtedness pursuant to the
covenant described above under the caption "--Liens";
(2) the gross cash proceeds of such sale and leaseback transaction are at
least equal to the fair market value (as determined in good faith by the
board of directors) of the property that is the subject of the sale and
leaseback transaction; and
(3) the transfer of assets in the sale and leaseback transaction is
permitted by, and CCIC applies the proceeds of such transaction in
compliance with, the covenant described above under the caption "--
Repurchase at the Option of Holders--Asset Sales."
Limitation on Issuances and Sales of Capital Stock of Restricted Subsidiaries
CCIC:
(1) will not, and will not permit any of its Restricted Subsidiaries to,
transfer, convey, sell, lease or otherwise dispose of any Equity Interests
in any Restricted Subsidiary of CCIC to any Person (other than CCIC or a
Wholly Owned Restricted Subsidiary of CCIC); and
(2) will not permit any of its Restricted Subsidiaries to issue any of
its Equity Interests (other than, if necessary, shares of its Capital Stock
constituting directors' qualifying shares) to any Person other than to CCIC
or a Wholly Owned Restricted Subsidiary of CCIC, unless, in each such case:
(a) as a result of such transfer, conveyance, sale, lease or other
disposition or issuance such Restricted Subsidiary no longer
constitutes a Subsidiary; and
(b) the cash Net Proceeds from such transfer, conveyance, sale, lease
or other disposition or issuance are applied in accordance with the
covenant described above under the caption "--Repurchase at the Option
of Holders--Asset Sales."
Notwithstanding the foregoing, the issuance or sale of shares of Capital
Stock of any Restricted Subsidiary of CCIC will not violate the provisions of
the immediately preceding sentence if such shares are issued or sold in
connection with:
(x) the formation or capitalization of a Restricted Subsidiary, or
(y) a single transaction or a series of substantially
contemporaneous transactions whereby such Restricted Subsidiary
becomes a Restricted Subsidiary of CCIC by reason of the acquisition
of securities or assets from another Person.
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Limitation on Issuances of Guarantees of Indebtedness
CCIC will not permit any Restricted Subsidiary, directly or indirectly, to
Guarantee or pledge any assets to secure the payment of any other Indebtedness
of CCIC unless such Subsidiary simultaneously executes and delivers a
supplemental indenture to each of the indentures governing the notes providing
for the Guarantee of the payment of the notes by such Subsidiary, which
Guarantee shall be senior to or pari passu with such Subsidiary's Guarantee of
or pledge to secure such other Indebtedness. Notwithstanding the foregoing, any
Guarantee by a Subsidiary of the notes shall provide by its terms that it shall
be automatically and unconditionally released and discharged upon any sale,
exchange or transfer, to any Person other than a Subsidiary of CCIC, of all of
CCIC's stock in, or all or substantially all the assets of, such Subsidiary,
which sale, exchange or transfer is made in compliance with the applicable
provisions of the indentures governing the notes. The form of a Guarantee will
be attached as an exhibit to the indentures.
Business Activities
CCIC will not, and will not permit any Subsidiary to, engage in any business
other than Permitted Businesses, except to the extent as would not be material
to CCIC and its Subsidiaries taken as a whole.
Reports
Whether or not required by the Securities and Exchange Commission, so long as
any notes are outstanding, CCIC will furnish to the Holders of notes:
(1) all quarterly and annual financial information that would be required
to be contained in a filing with the SEC on Forms 10-Q and 10-K if CCIC
were required to file such Forms, including a "Management's Discussion and
Analysis of Financial Condition and Results of Operations" that describes
the financial condition and results of operations of CCIC and its
consolidated Subsidiaries showing in reasonable detail in the footnotes to
the financial statements and in "Management's Discussion and Analysis of
Financial Condition and Results of Operations," in each case to the extent
not prohibited by the SEC's rules and regulations:
(a) the financial condition and results of operations of CCIC and its
Restricted Subsidiaries separate from the financial condition and
results of operations of the Unrestricted Subsidiaries of CCIC; and
(b) the Tower Cash Flow for the most recently completed fiscal
quarter and the Adjusted Consolidated Cash Flow for the most recently
completed four-quarter period) and, with respect to the annual
information only, a report thereon by CCIC's certified independent
accountants; and
(2) all current reports that would be required to be filed with the SEC
on Form 8-K if CCIC were required to file such reports, in each case within
the time periods specified in the CCIC's rules and regulations.
In addition, whether or not required by the rules and regulations of the SEC,
CCIC will file a copy of all such information and reports with the SEC for
public availability within the time periods specified in the SEC's rules and
regulations, unless the SEC will not accept such a filing, and make such
information available to securities analysts and prospective investors upon
request.
Events of Default and Remedies
Each of the following constitutes an Event of Default under the applicable
indenture:
(1) default for 30 days in the payment when due of interest on, or
Special Interest with respect to, the notes;
51
(2) default in payment when due of the principal of or premium, if any,
on the notes;
(3) failure by CCIC or any of its Subsidiaries to comply with the
provisions described under the caption "--Certain Covenants--Merger,
Consolidation or Sale of Assets" or failure by CCIC to consummate a Change
of Control Offer or Asset Sale Offer in accordance with the provisions of
the indentures applicable to the offers;
(4) failure by CCIC or any of its Subsidiaries for 30 days after notice
to comply with any of its other agreements in the indentures or the notes;
(5) default under any mortgage, indenture or instrument under which there
may be issued or by which there may be secured or evidenced any
Indebtedness for money borrowed by CCIC or any of its Significant
Subsidiaries, or the payment of which is guaranteed by CCIC or any of its
Significant Subsidiaries, whether such Indebtedness or guarantee now
exists, or is created after the date of the indentures, which default:
(a) is caused by a failure to pay principal of or premium, if any, or
interest on the Indebtedness prior to the expiration of the grace
period provided in such Indebtedness on the date of the default (a
"Payment Default"); or
(b) results in the acceleration of the 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 under which there has been a Payment Default or the
maturity of which has been so accelerated, aggregates $20.0 million or
more;
(6) failure by CCIC or any of its Significant Subsidiaries to pay final
judgments aggregating in excess of $20.0 million, which judgments are not
paid, discharged or stayed for a period of 60 days; or
(7) certain events of bankruptcy or insolvency described in the
indentures with respect to CCIC or any of its Restricted Subsidiaries.
If any Event of Default occurs and is continuing, the trustee under the
applicable indenture or the Holders of at least 25% in principal amount at
maturity of the then outstanding notes of the applicable series may declare all
the notes of such series to be due and payable immediately. Notwithstanding the
foregoing, in the case of an Event of Default arising from certain events of
bankruptcy or insolvency, with respect to CCIC, all outstanding notes will
become due and payable without further action or notice. Holders of the notes
may not enforce the indentures or the notes except as provided in the
indentures. Subject to certain limitations, Holders of a majority in principal
amount at maturity of the then outstanding notes may direct the trustee under
the applicable indenture in its exercise of any trust or power.
The Holders of a majority in aggregate principal amount at maturity of either
series of the notes then outstanding by notice to the trustee under the
applicable indenture may on behalf of the Holders of all of such series of
notes waive any existing Default or Event of Default and its consequences under
the applicable indenture except a continuing Default or Event of Default in the
payment of interest or Special Interest, if any, on, or the principal of, the
notes.
Each of the indentures provide that if a Default occurs and is continuing and
is known to the trustee, the trustee must mail to each Holder of the relevant
series of notes notice of the Default within 90 days after it occurs. Except in
the case of a Default in the payment of principal of or interest or Special
Interest, if any, on any note, the trustee may withhold notice if and so long
as a committee of its trust officers determines that withholding notice is not
opposed to the interest of the Holders of the notes. In addition, CCIC is
required to deliver to the trustee, within 90 days after the
52
end of each fiscal year, a certificate indicating whether the signers thereof
know of any Default that occurred during the previous year. CCIC is also
required to deliver to the trustee, promptly after the occurrence thereof,
written notice of any event that would constitute a Default, the status thereof
and what action CCIC is taking or proposes to take in respect thereof.
No Personal Liability of Directors, Officers, Employees and Stockholders
No director, officer, employee, incorporator or stockholder of CCIC, as such,
shall have any liability for any obligations of CCIC under the notes, the
indentures or for any claim based on, in respect of, or by reason of, such
obligations or their creation. Each Holder of notes by accepting a note waives
and releases all such liability. The waiver and release are part of the
consideration for issuance of the notes. The waiver may not be effective to
waive liabilities under the federal securities laws, and it is the view of the
SEC that such a waiver is against public policy.
Legal Defeasance and Covenant Defeasance
CCIC may, at its option and at any time, elect to have all of its obligations
discharged with respect to either series of the notes outstanding ("Legal
Defeasance") except for:
(1) the rights of Holders of outstanding notes of such series to receive
payments in respect of the principal of, premium, if any, and interest and
Special Interest, if any, on such notes when such payments are due from the
trust referred to below;
(2) CCIC's obligations with respect to such notes concerning issuing
temporary notes, registration of notes, mutilated, destroyed, lost or
stolen notes and the maintenance of an office or agency for payment and
money for security payments held in trust;
(3) the rights, powers, trusts, duties and immunities of the trustee, and
CCIC's obligations in connection therewith; and
(4) the Legal Defeasance provisions of the applicable indenture.
In addition, CCIC may, at its option and at any time, elect to have the
obligations of CCIC released with respect to certain covenants that are
described in the indentures ("Covenant Defeasance"), and thereafter any
omission to comply with such obligations shall not constitute a Default or
Event of Default with respect to the notes. In the event Covenant Defeasance
occurs, certain events described under "--Events of Default and Remedies", but
not including non-payment and bankruptcy, receivership, rehabilitation and
insolvency events with respect to CCIC, will no longer constitute an Event of
Default with respect to the notes.
In order to exercise either Legal Defeasance or Covenant Defeasance:
(1) CCIC must irrevocably deposit with the trustee, in trust, for the
benefit of the Holders of the applicable series of notes, cash in United
States dollars, non-callable 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, to pay the
principal of, premium, if any, and interest and Special Interest, if any,
on the outstanding notes on the stated maturity or on the applicable
redemption date, as the case may be, and CCIC must specify whether the
notes are being defeased to maturity or to a particular redemption date;
(2) in the case of Legal Defeasance, CCIC shall have delivered to the
trustee under the applicable indenture an opinion of counsel in the United
States reasonably acceptable to the trustee confirming that:
(a) CCIC has received from, or there has been published by, the
Internal Revenue Service a ruling, or
53
(b) since the date of the indentures, 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 the outstanding notes will not recognize income, gain or
loss for federal income tax purposes as a result of such Legal
Defeasance and will be subject to federal income tax on the same
amounts, in the same manner and at the same times as would have been
the case if such Legal Defeasance had not occurred;
(3) in the case of Covenant Defeasance, CCIC shall have delivered to the
trustee under the applicable indenture an opinion of counsel in the United
States reasonably acceptable to the trustee confirming that the Holders of
the outstanding notes of such series 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;
(4) no Default or Event of Default shall have occurred and be continuing
either:
(a) on the date of such deposit, other than a Default or Event of
Default resulting from the borrowing of funds to be applied to such
deposit, or
(b) insofar as Events of Default from bankruptcy or insolvency events
with respect to CCIC are concerned, at any time in the period ending on
the 91st day after the date of deposit;
(5) such Legal Defeasance or Covenant Defeasance will not result in a
breach or violation of, or constitute a default under any material
agreement or instrument, other than the applicable indenture, to which CCIC
or any of its Restricted Subsidiaries is a party or by which CCIC or any of
its Restricted Subsidiaries is bound;
(6) CCIC must have delivered to the trustee an opinion of counsel to the
effect that after the 91st day following the deposit, the trust funds will
not be subject to the effect of any applicable bankruptcy, insolvency,
reorganization or similar laws affecting creditors' rights generally;
(7) CCIC must deliver to the trustee under the applicable indenture an
officers' certificate stating that the deposit was not made by CCIC with
the intent of preferring the Holders of such series of notes over the other
creditors of CCIC with the intent of defeating, hindering, delaying or
defrauding creditors of CCIC or others; and
(8) CCIC must deliver to the trustee under the applicable indenture an
officers' certificate and an opinion of counsel, each stating that all
conditions precedent provided for relating to the Legal Defeasance or the
Covenant Defeasance have been complied with.
Amendment, Supplement and Waiver
Except as described in the two paragraphs below, the Holders of a majority in
principal amount at maturity of the notes outstanding can, with respect to the
relevant series of notes:
(1) consent to any amendment or supplement to the relevant indenture or
the related series of notes; and
(2) waive any existing default under, or the compliance with any
provisions of, the relevant indenture or the related series of notes.
Consents and waivers obtained in connection with a purchase of, or tender
offer or exchange offer for, the relevant series of notes shall be included for
purposes of the previous sentence.
54
Without the consent of each Holder affected, an amendment or waiver with
respect to any notes of a particular series held by a non-consenting Holder may
not :
(1) reduce the principal amount of notes of such series whose Holders
must consent to an amendment, supplement or waiver;
(2) reduce the principal of or change the fixed maturity of any note of a
particular series or alter the provisions with respect to the redemption,
but not any required repurchase in connection with an Asset Sale Offer or
Change of Control Offer, of the notes of such series;
(3) reduce the rate of or change the time for payment of interest on any
note of such series;
(4) waive a Default or Event of Default in the payment of principal of or
premium, if any, or interest or Special Interest, if any, on the notes of a
particular series, excluding a rescission of acceleration of the notes by
the Holders of at least a majority in aggregate principal amount of the
notes of such series and a waiver of the payment default that resulted from
such acceleration;
(5) make any note of a particular series payable in money other than that
stated in the notes of such series;
(6) make any change in the provisions of the applicable indenture
relating to waivers of past Defaults or the rights of Holders of notes of
such series to receive payments of principal of or premium, if any, or
interest or Special Interest, if any, on the notes of such series;
(7) waive a redemption payment, but not any payment upon a required
repurchase in connection with an Asset Sale Offer or Change of Control
Offer, with respect to any note of a particular series;
(8) except as provided under the caption "--Legal Defeasance and Covenant
Defeasance" or in accordance with the terms of any Subsidiary Guarantee,
release a Subsidiary Guarantor from its obligations under its Subsidiary
Guarantee or make any change in a Subsidiary Guarantee that would adversely
affect the Holders of the notes of a particular series; or
(9) make any change in the foregoing amendment and waiver provisions.
Notwithstanding the foregoing, without the consent of any Holder of notes of
a particular series, CCIC and the trustee may amend or supplement the
applicable indenture or the notes of such series to:
(1) cure any ambiguity, defect or inconsistency,
(2) provide for uncertificated notes in addition to or in place of
certificated notes,
(3) provide for the assumption of CCIC's obligations to Holders of notes
of such series in the case of a merger or consolidation,
(4) make any change that would provide any additional rights or benefits
to the Holders of notes of such series or that does not adversely affect
the legal rights under the indenture of any such Holder, or
(5) comply with requirements of SEC in order to effect or maintain the
qualification of the indentures under the Trust Indenture Act.
55
Concerning the Trustee
The indentures contain certain limitations on the rights of the trustee,
should it become a creditor of CCIC, to obtain payment of claims in certain
cases, or to realize on certain property received in respect of any such claim
as security or otherwise. The trustee will be permitted to engage in other
transactions; however, if it acquires any conflicting interest it must
eliminate such conflict within 90 days, apply to the SEC for permission to
continue or resign.
The Holders of a majority in principal amount at maturity of the notes of a
particular series then outstanding will have the right to direct the time,
method and place of conducting any proceeding for exercising any remedy
available to the trustee under the applicable indenture, subject to certain
exceptions. The indentures provide that if an Event of Default occurs and is
not cured, the trustee will be required, in the exercise of its power, to use
the degree of care of a prudent man in the conduct of his own affairs. Subject
to these provisions, the trustee will be under no obligation to exercise any of
its rights or powers under the indentures at the request of any Holder of notes
of a particular series, unless that Holder shall have offered to the trustee
security and indemnity satisfactory to it against any loss, liability or
expense.
Additional Information
Anyone who receives this prospectus may obtain a copy of the indentures and
the registration rights agreement without charge by writing to Crown Castle
International Corp., 510 Bering Drive, Suite 500, Houston, Texas 77057,
Attention: Secretary.
Book-Entry, Delivery and Form
The new notes will be represented by one or more notes in registered, global
form without interest coupons (collectively, the "Global notes"). The Global
notes will be deposited upon issuance with the trustee as custodian for The
Depository Trust Company ("DTC"), in New York, New York, and registered in the
name of DTC or its nominee, in each case for credit to an account of a direct
or indirect participant in DTC as described below.
Except as set forth below, the Global notes may be transferred, in whole and
not in part, only to another nominee of DTC or to a successor of DTC or its
nominee. Beneficial interests in the Global notes may not be exchanged for
notes in certificated form except in the limited circumstances described below.
See "--Exchange of Global Notes for Certificated Notes." Except in the limited
circumstances described below, owners of beneficial interests in the Global
notes will not be entitled to receive physical delivery of new notes in
certificated form. Transfers of beneficial interests in the Global notes will
be subject to the applicable rules and procedures of DTC and its direct or
indirect participants, which may change from time to time.
Depository Procedures
The following description of the operations and procedures of DTC is provided
solely as a matter of convenience. These operations and procedures are solely
within the control of DTC and are subject to changes by DTC from time to time.
CCIC takes no responsibility for these operations and procedures and urges
investors to contact DTC or its participants directly to discuss these matters.
DTC has advised CCIC that DTC is a limited-purpose trust company created to
hold securities for its participating organizations (collectively, the
"Participants") and to facilitate the clearance and settlement of transactions
in those securities between Participants through electronic book-entry changes
in accounts of its Participants. The Participants include securities brokers
and dealers (including the initial purchasers of the old notes (the "Initial
Purchasers")), banks, trust companies
56
clearing corporations and certain other organizations. Access to DTC's system
is also available to other entities such as banks, brokers, dealers and trust
companies that clear through or maintain a custodial relationship with a
Participant, either directly or indirectly (collectively, the "Indirect
Participants"). Persons who are not Participants may beneficially own
securities held by or on behalf of DTC only through the Participants or the
Indirect Participants. The ownership interests in, and transfers of ownership
interests in, each security held by or on behalf of DTC are recorded on the
records of the Participants and Indirect Participants.
DTC has also advised CCIC that, pursuant to procedures established by it:
(1) upon deposit of the Global notes, DTC will credit the accounts of
Participants designated by the Initial Purchasers with portions of the
principal amount of the Global notes; and
(2) ownership of these interests in the Global notes will be shown on,
and the transfer of ownership thereof will be effected only through,
records maintained by DTC (with respect to the Participants) or by the
Participants and the Indirect Participants (with respect to other owners of
beneficial interest in the Global notes).
Except as described below, owners of an interest in the Global notes will not
have new notes registered in their names, will not receive physical delivery of
notes in certificated form and will not be considered the registered owners or
"Holders" thereof under the applicable indenture for any purpose.
Payments in respect of the principal of, and interest and premium and Special
Interest, if any, on a Global note registered in the name of DTC or its nominee
will be payable to DTC in its capacity as the registered Holder under the
indentures. Under the terms of the indentures, CCIC and the trustee will treat
the Persons in whose names the notes, including the Global notes, are
registered as the owners thereof for the purpose of receiving payments and for
all other purposes. Consequently, neither CCIC, the trustee nor any agent of
CCIC or the trustee has or will have any responsibility or liability for:
(1) any aspect of DTC's records or any Participant's or Indirect
Participant's records relating to or payments made on account of beneficial
ownership interest in the Global notes or for maintaining, supervising or
reviewing any of DTC's records or any Participant's or Indirect
Participant's records relating to the beneficial ownership interests in the
Global notes; or
(2) any other matter relating to the actions and practices of DTC or any
of its Participants or Indirect Participants.
DTC has advised CCIC that its current practice, upon receipt of any payment
in respect of securities such as the notes (including principal and interest),
is to credit the accounts of the relevant Participants with the payment on the
payment date unless DTC has reason to believe it will not receive payment on
such payment date. Each relevant Participant is credited with an amount
proportionate to its beneficial ownership of an interest in the principal
amount of the relevant security as shown on the records of DTC. Payments by the
Participants and the Indirect Participants to the beneficial owners of notes
will be governed by standing instructions and customary practices and will be
the responsibility of the Participants or the Indirect Participants and will
not be the responsibility of DTC, the trustee or CCIC. Neither CCIC nor the
trustee will be liable for any delay by DTC or any of its Participants in
identifying the beneficial owners of the notes, and CCIC and the trustee may
conclusively rely on and will be protected in relying on instructions from DTC
or its nominee for all purposes.
Transfers between Participants in DTC will be effected in accordance with
DTC's procedures, and will be settled in same-day funds.
57
DTC has advised CCIC that it will take any action permitted to be taken by a
Holder of notes only at the direction of one or more Participants to whose
account DTC has credited the interests in the Global notes and only in respect
of such portion of the aggregate principal amount of the notes as to which such
Participant or Participants has or have given such direction. However, if there
is an Event of Default under the notes, DTC reserves the right to exchange the
Global notes for legended notes in certificated form, and to distribute such
notes to its Participants.
Although DTC has agreed to the foregoing procedures to facilitate transfers
of interests in the Global notes among participants in DTC, it is under no
obligation to perform or to continue to perform such procedures and may
discontinue such procedures at any time. Neither CCIC nor the trustee nor any
of their respective agents will have any responsibility for the performance by
DTC or its participants or indirect participants of its obligations under the
rules and procedures governing its operations.
Exchange of Global Notes for Certificated Notes
A Global note is exchangeable for definitive new notes in registered
certificated form ("Certificated notes") if:
(1) DTC (a) notifies CCIC that it is unwilling or unable to continue as
depositary for the Global notes and CCIC then fails to appoint a successor
depositary or (b) has ceased to be a clearing agency registered under the
Securities Exchange Act of 1934;
(2) CCIC, at its option, notifies the trustee in writing that it elects
to cause the issuance of the Certificated notes; or
(3) there shall have occurred and be continuing a Default or Event of
Default with respect to the notes.
In addition, beneficial interests in a Global note may be exchanged for
Certificated notes upon prior written notice given to the trustee by or on
behalf of DTC in accordance with the indentures. In all cases, Certificated
notes delivered in exchange for any Global note or beneficial interests in
Global notes will be registered in the names, and issued in any approved
denominations, requested by or on behalf of the depositary (in accordance with
its customary procedures).
Exchange of Certificated Notes for Global Notes
New notes in certificated form may not be exchanged for beneficial interests
in any Global note unless the transferor first delivers to the trustee a
written certificate (in the form provided in the indentures) to the effect that
such transfer will comply with the appropriate transfer restrictions applicable
to such new notes.
Same Day Settlement and Payment
CCIC will make payments in respect of the notes represented by the Global
notes (including principal, premium, if any, interest and Special Interest, if
any) by wire transfer of immediately available funds to the accounts specified
by the Global note Holder. CCIC will make all payments of principal, interest
and premium and Special Interest, if any, with respect to Certificated notes by
wire transfer of immediately available funds to the accounts specified by the
Holders thereof or, if no such account is specified, by mailing a check to each
such Holder's registered address. The notes represented by the Global notes are
expected to trade in DTC's Same-day Funds Settlement System, and any permitted
secondary market trading activity in such notes will, therefore, be required by
DTC to be settled in immediately available funds. CCIC expects that secondary
trading in any Certificated notes will also be settled in immediately available
funds.
58
Registration Rights and Liquidated Damages
Holders of the new notes are not entitled to any registration rights with
respect to the new notes. We and the Initial Purchasers entered into the
registration rights agreement for the benefit of the Holders of transfer
restricted securities on the closing date of the initial purchase of the old
notes by the Initial Purchasers. Pursuant to the registration rights agreement,
we agreed to file with the SEC the exchange offer registration statement on the
appropriate form under the Securities Act of 1933 with respect to the new
notes. The registration statement of which this prospectus is a part
constitutes the exchange offer registration statement. The registration rights
agreement provides that if:
(1) we are not required to file the exchange offer registration statement
or permitted to consummate the exchange offer because the exchange offer is
not permitted by applicable law or SEC policy, or
(2) any Holder of transfer restricted securities notifies us prior to the
20th day following consummation of the exchange offer that:
(a) it is prohibited by law or SEC policy from participating in the
exchange offer;
(b) that it may not resell the new notes acquired by it in the
exchange offer to the public without delivering a prospectus and the
prospectus contained in the exchange offer registration statement is
not appropriate or available for such resales, or
(c) that it is a broker-dealer and owns notes acquired directly from
us or our affiliate,
we will file with the SEC a shelf registration statement to cover resales of
the old notes by the Holders thereof, subject to such Holders satisfying
certain conditions relating to the provision of information in connection with
the shelf registration statement. We have agreed that we will use all
commercially reasonable efforts to cause any such shelf registration statement
to be declared effective as promptly as possible by the SEC.
For purposes of the foregoing, "transfer restricted securities" means each
old note until:
(1) the date on which such old note has been exchanged by a person other
than a broker-dealer for a new note in the exchange offer;
(2) following the exchange by a broker-dealer in the exchange offer of an
old note for a new note, the date on which such new note is sold to a
purchaser who receives from such broker-dealer on or prior to the date of
such sale a copy of the prospectus contained in the exchange offer
registration statement;
(3) the date on which such old note has been effectively registered under
the Securities Act of 1933 and disposed of in accordance with the shelf
registration statement; or
(4) the date on which such old note is distributed to the public pursuant
to Rule 144 under the Securities Act of 1933.
The registration rights agreement provides that:
(1) we will file an exchange offer registration Statement with the SEC on
or prior to 60 days after the closing date,
(2) we will use all commercially reasonable efforts to have the exchange
offer registration statement declared effective by the SEC on or prior to
150 days after the closing date,
59
(3) unless the exchange offer would not be permitted by applicable law or
SEC policy, we will commence the exchange offer and use our best efforts to
issue on or prior to 30 business days after the date on which the exchange
offer registration statement was declared effective by the SEC, new notes
in exchange for all old notes tendered prior thereto in the exchange offer,
and
(4) if obligated to file the shelf registration statement, we will use
our best efforts to file the shelf registration statement with the SEC on
or prior to 45 days after such filing obligation arises and to cause the
shelf registration to be declared effective by the SEC on or prior to 90
days after such obligation arises.
If:
(a) we fail to file any of the registration statements required by the
registration rights agreement on or before the date specified for such
filing,
(b) any of such registration statements is not declared effective by the
SEC on or prior to the date specified for such effectiveness,
(c) we fail to consummate the exchange offer within 30 business days of
the effectiveness target date with respect to the exchange offer
registration statement, or
(d) the shelf registration statement or the exchange offer registration
statement is declared effective but thereafter ceases to be effective or
usable in connection with resales of transfer restricted securities during
the periods specified in the registration rights agreement (each such event
referred to in clauses (a) through (d) above a "Registration Default"),
then we will pay liquidated damages ("Liquidated Damages") to each Holder of
notes, with respect to the first 90-day period immediately following the
occurrence of the first Registration Default in an amount equal to $.05 per
week per $1,000 of the principal amount or accreted value, as the case may be,
of the notes held by each Holder held by such Holder. The amount of the
Liquidated Damages will increase by an additional $.05 per week per $1,000
principal amount or accreted value, as the case may be, of the notes held by
each Holder with respect to each subsequent 90-day period until all
Registration Defaults have been cured, up to a maximum amount of Liquidated
Damages for all Registration Defaults of $.50 per week per $1,000 principal
amount or accreted value, as the case may be, of notes held by a Holder. We
will pay all accrued Liquidated Damages on each interest payment date to the
Holders of record on the immediately preceding record date by wire transfer of
immediately available funds, in the case of the Holder of Global notes, and to
Holders of Certificated notes by wire transfer to the accounts specified by
them or by mailing checks to their registered addresses if no such accounts
have been specified. Following the cure of all Registration Defaults, the
accrual of Liquidated Damages will cease.
Certain Definitions
Set forth below are certain defined terms used in the indentures. Reference
is made to the indentures for a full disclosure of all such terms, as well as
any other capitalized terms used herein for which no definition is provided.
"Accreted Value" means, as of any date of determination the sum of:
(1) the initial Accreted Value (which is $578.89 per $1,000 in principal
amount at maturity of notes); and
(2) the portion of the excess of the principal amount at maturity of each
note over such initial Accreted Value which shall have been amortized
through such date, such amount to be so amortized on a daily basis and
compounded semiannually on each February 1 and August 1 at the rate of 11
1/4% per annum from the date of original issuance of the notes through the
date of determination computed on the basis of a 360-day year of twelve 30-
day months.
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The Accreted Value of any note on or after the Full Accretion Date shall be
equal to 100% of its stated principal amount.
"Acquired Debt" means, with respect to any specified Person:
(1) Indebtedness of any other Person existing at the time such other
Person is merged with or into or became a Subsidiary of such specified
Person, including, without limitation, Indebtedness incurred in connection
with, or in contemplation of, such other Person merging with or into or
becoming a Subsidiary of such specified Person; and
(2) Indebtedness secured by a Lien encumbering any asset acquired by such
specified Person.
"Adjusted Consolidated Cash Flow" means, as of any date of determination, the
sum of:
(1) the Consolidated Cash Flow of CCIC for the four most recent full
fiscal quarters ending immediately prior to such date for which internal
financial statements are available, less CCIC's Tower Cash Flow for such
four-quarter period; plus
(2) the product of four times CCIC's Tower Cash Flow for the most recent
fiscal quarter for which internal financial statements are available.
For purposes of making the computation referred to above:
(1) acquisitions that have been made by CCIC or any of its Restricted
Subsidiaries, including through mergers or consolidations and including any
related financing transactions, during the reference period or subsequent
to such reference period and on or prior to the calculation date shall be
deemed to have occurred on the first day of the reference period and
Consolidated Cash Flow for such reference period shall be calculated
without giving effect to clause (2) of the proviso set forth in the
definition of Consolidated Net Income;
(2 ) the Consolidated Cash Flow attributable to discontinued operations,
as determined in accordance with GAAP, and operations or businesses
disposed of prior to the calculation date, shall be excluded; and
(3) the corporate development expense of CCIC and its Restricted
Subsidiaries calculated in a manner consistent with the audited financial
statements of CCIC included or incorporated by reference in this prospectus
shall be added to Consolidated Cash Flow to the extent it was included in
computing Consolidated Net Income.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For purposes of this definition, "control"
(including, with correlative meanings, the terms "controlling," "controlled by"
and "under common control with"), as used with respect to any Person, shall
mean the possession, directly or indirectly, of the power to direct or cause
the direction of the management or policies of such Person, whether through the
ownership of voting securities, by agreement or otherwise; provided that
beneficial ownership of 10% or more of the Voting Stock of a Person shall be
deemed to be control.
"Asset Sale" means:
(1) the sale, lease, conveyance or other disposition of any assets or
rights (including, without limitation, by way of a sale and leaseback);
provided that the sale, lease, conveyance or other disposition of all or
substantially all of the assets of CCIC and its Subsidiaries taken as a
whole will be governed by the provisions of the indentures described above
under the caption "--Repurchase at the Option of Holders--Change of
Control" and/or the provisions described above under the caption "--
Repurchase at the Option of Holders--Merger, Consolidation or Sale of
Assets" and not by the provisions of the Asset Sale covenant; and
61
(2) the issue or sale by CCIC or any of its Restricted Subsidiaries of
Equity Interests of any of CCIC's Subsidiaries (other than directors'
qualifying shares or shares required by applicable law to be held by a
Person other than CCIC or a Restricted Subsidiary), in the case of either
clause (1) or (2), whether in a single transaction or a series of related
transactions:
(a) that have a fair market value in excess of $1.0 million; or
(b) for net proceeds in excess of $1.0 million.
Notwithstanding the foregoing, the following items shall not be deemed to be
Asset Sales:
(1) a transfer of assets by CCIC to a Restricted Subsidiary or by a
Restricted Subsidiary to CCIC or to another Restricted Subsidiary;
(2) an issuance of Equity Interests by a Subsidiary to CCIC or to another
Restricted Subsidiary;
(3) a transfer or issuance of Equity Interests of an Unrestricted
Subsidiary to an Unrestricted Subsidiary; provided, however, that such
transfer or issuance does not result in a decrease in the percentage of
ownership of the voting securities of such transferee Unrestricted
Subsidiary that are collectively held by CCIC and its Subsidiaries.
(4) a Restricted Payment that is permitted by the covenant described
above under the caption "--Certain Covenants--Restricted Payments";
(5) grants of leases or licenses in the ordinary course of business; and
(6) disposals of Cash Equivalents.
"Asset Sale Offer" has the meaning set forth above under the caption
"Repurchase at the Option of Holders--Asset Sales."
"Attributable Debt" in respect of a sale and leaseback transaction means, at
the time of determination, the present value (discounted at the rate of
interest implicit in such transaction, determined in accordance with GAAP) of
the obligation of the lessee for net rental payments during the remaining term
of the lease included in such sale and leaseback transaction (including any
period for which such lease has been extended or may, at the option of the
lessor, be extended).
"Capital Lease Obligation" means, at the time any determination thereof is to
be made, the amount of the liability in respect of a capital lease that would
at such time be required to be capitalized on a balance sheet in accordance
with GAAP.
"Capital Stock" means:
(1) in the case of a corporation, corporate stock;
(2) in the case of an association or business entity, any and all shares,
interests, participations, rights or other equivalents (however designated)
of corporate stock;
(3) in the case of a partnership or limited liability company,
partnership or membership interests (whether general or limited); and
(4) any other interest or participation that confers on a Person the
right to receive a share of the profits and losses of, or distributions of
assets of, the issuing Person.
"Cash Equivalents" means:
(1) United States dollars;
(2) securities issued or directly and fully guaranteed or insured by the
United States government or any agency or instrumentality thereof (provided
that the full faith and credit of the United States is pledged in support
thereof) having maturities of not more than six months from the date of
acquisition;
62
(3) certificates of deposit and eurodollar time deposits with maturities
of six months or less from the date of acquisition, bankers' acceptances
with maturities not exceeding six months and overnight bank deposits, in
each case with any lender party to the Senior Credit Facility or with any
domestic commercial bank having capital and surplus in excess of $500.0
million and a Thompson Bank Watch Rating of "B" or better;
(4) repurchase obligations with a term of not more than seven days for
underlying securities of the types described in clauses (2) and (3) above
entered into with any financial institution meeting the qualifications
specified in clause (3) above;
(5) commercial paper having the highest rating obtainable from Moody's
Investors Service, Inc. or Standard & Poor's Ratings Group and in each case
maturing within six months after the date of acquisition; and
(6) money market funds at least 95% of the assets of which constitute
Cash Equivalents of the kinds described in clauses (1)-(5) of this
definition.
"Change of Control" means the occurrence of any of the following:
(1) the sale, lease, transfer, conveyance or other disposition (other
than by way of merger or consolidation), in one or a series of related
transactions, of all or substantially all of the assets of CCIC and its
Restricted Subsidiaries, taken as a whole to any "person" (as such term is
used in Section 13(d)(3) of the Securities Exchange Act 1934) other than a
Principal or a Related Party of a Principal;
(2) the adoption of a plan relating to the liquidation or dissolution of
CCIC;
(3) the consummation of any transaction (including, without limitation,
any merger or consolidation) the result of which is that any "person" (as
defined above), other than the Principals and their Related Parties,
becomes the "beneficial owner" (as such term is defined in Rule 13d-3 and
Rule 13d-5 under the Securities Exchange Act 1934, except that a person
shall be deemed to have "beneficial ownership" of all securities that such
person has the right to acquire, whether such right is currently
exercisable or is exercisable only upon the occurrence of a subsequent
condition), directly or indirectly, of more than 50% of the Voting Stock of
CCIC (measured by voting power rather than number of shares); provided that
transfers of Equity Interests in CCIC between or among the beneficial
owners of CCIC's Equity Interests and/or Equity Interests in CTSH, in each
case as of the date of the Indenture, will not be deemed to cause a Change
of Control under this clause (3) so long as no single Person together with
its Affiliates acquires a beneficial interest in more of the Voting Stock
of CCIC than is at the time collectively beneficially owned by the
Principals and their Related Parties;
(4) the first day on which a majority of the members of the board of
directors of CCIC are not Continuing Directors; or
(5) CCIC consolidates with, or merges with or into, any Person, or any
Person consolidates with, or merges with or into, CCIC, in any such event
pursuant to a transaction in which any of the outstanding Voting Stock of
CCIC is converted into or exchanged for cash, securities or other property,
other than any such transaction where:
(a) the Voting Stock of CCIC outstanding immediately prior to such
transaction is converted into or exchanged for Voting Stock (other than
Disqualified Stock) of the surviving or transferee Person constituting
a majority of the outstanding shares of such Voting Stock of such
surviving or transferee Person (immediately after giving effect to such
issuance); or
(b) the Principals and their Related Parties own a majority of such
outstanding shares after such transaction.
"Change of Control Offer" has the meaning set forth above under the caption
"Repurchase at the Option of Holders--Change of Control."
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"Change of Control Payment" has the meaning set forth above under the caption
"Repurchase at the Option of Holders--Change of Control."
"Change of Control Payment Date" has the meaning set forth above under the
caption "Repurchase at the Option of Holders--Change of Control."
"Completed Tower" means any wireless transmission tower owned or managed by
CCIC or any of its Restricted Subsidiaries that, as of any date of
determination:
(1) has at least one wireless communications or broadcast tenant that has
executed a definitive lease with CCIC or any of its Restricted
Subsidiaries, which lease is producing revenue with respect to the tower as
of the date of determination; and
(2) has capacity for at least two tenants in addition to the tenant
referred to in clause (1) of this definition.
"Consolidated Cash Flow" means, with respect to any Person for any period,
the Consolidated Net Income of such Person for such period; plus
(1) provision for taxes based on income or profits of such Person and its
Restricted Subsidiaries for such period, to the extent that such provision
for taxes was included in computing such Consolidated Net Income; plus
(2) consolidated interest expense of such Person and its Restricted
Subsidiaries for such period, whether paid or accrued and whether or not
capitalized (including, without limitation, amortization of debt issuance
costs and original issue discount, non-cash interest payments, the interest
component of any deferred payment obligations, the interest component of
all payments associated with Capital Lease Obligations, commissions,
discounts and other fees and charges incurred in respect of letters of
credit or bankers' acceptance financings, and net payments (if any)
pursuant to Hedging Obligations), to the extent that any such expense was
deducted in computing such Consolidated Net Income; plus
(3) depreciation, amortization (including amortization of goodwill and
other intangibles and other non-cash expenses (excluding any such non-cash
expense to the extent that it represents an accrual of or reserve for cash
expenses in any future period) of such Person and its Restricted
Subsidiaries for such period to the extent that such depreciation,
amortization and other non-cash expenses were deducted in computing such
Consolidated Net Income; minus
(4) non-cash items increasing such Consolidated Net Income for such
period (excluding any items that were accrued in the ordinary course of
business),
in each case on a consolidated basis and determined in accordance with GAAP.
"Consolidated Indebtedness" means, with respect to any Person as of any date
of determination, the sum, without duplication, of:
(1) the total amount of Indebtedness of such Person and its Restricted
Subsidiaries; plus
(2) the total amount of Indebtedness of any other Person, to the extent
that such Indebtedness has been Guaranteed by the referent Person or one or
more of its Restricted Subsidiaries; plus
(3) the aggregate liquidation value of all Disqualified Stock of such
Person and all preferred stock of Restricted Subsidiaries of such Person,
in each case, determined on a consolidated basis in accordance with GAAP.
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"Consolidated Interest Expense" means, with respect to any Person for any
period:
(1) the consolidated interest expense of such Person and its Restricted
Subsidiaries for such period determined in accordance with GAAP, whether
paid or accrued and whether or not capitalized (including, without
limitation, amortization of debt issuance costs and original issue
discount, non-cash interest payments, the interest component of any
deferred payment obligations, the interest component of all payments
associated with Capital Lease Obligations, imputed interest with respect to
Attributable Debt, commissions, discounts and other fees and charges
incurred in respect of letter of credit or bankers' acceptance financings,
and net payments, if any, pursuant to Hedging Obligations); plus
(2) all preferred stock dividends paid or accrued in respect of CCIC's and
its Restricted Subsidiaries' preferred stock to Persons other than CCIC or a
Wholly Owned Restricted Subsidiary of CCIC other than preferred stock dividends
paid by CCIC in shares of preferred stock that is not Disqualified Stock.
"Consolidated Net Income" means, with respect to any Person for any period,
the aggregate of the Net Income of such Person and its Restricted Subsidiaries
for such period, on a consolidated basis, determined in accordance with GAAP;
provided that:
(1) the Net Income (but not loss) of any Person other than CCIC that is not a
Restricted Subsidiary or that is accounted for by the equity method of
accounting shall be included only to the extent of the amount of dividends or
distributions paid in cash to the referent Person or a Restricted Subsidiary
thereof;
(2) the Net Income of any Person acquired in a pooling of interests
transaction for any period prior to the date of such acquisition shall be
excluded;
(3) the cumulative effect of a change in accounting principles shall be
excluded; and
(4) the Net Income (but not loss) of any Unrestricted Subsidiary shall be
excluded whether or not distributed to CCIC or one of its Restricted
Subsidiaries.
"Consolidated Tangible Assets" means, with respect to CCIC, the total
consolidated assets of CCIC and its Restricted Subsidiaries, less the total
intangible assets of CCIC and its Restricted Subsidiaries, as shown on the most
recent internal consolidated balance sheet of CCIC and such Restricted
Subsidiaries calculated on a consolidated basis in accordance with GAAP.
"Continuing Directors" means, as of any date of determination, any member of
the board of directors of CCIC who:
(1) was a member of such board of directors on the date of the
indentures;
(2) was nominated for election or elected to such board of directors with
the approval of a majority of the Continuing Directors who were members of
such board of directors at the time of such nomination or election; or
(3) is a designee of a Principal or was nominated by a Principal.
"Covenant Defeasance" has the meaning set forth above under the caption
"Legal Defeasance and Covenant Defeasance."
"Credit Facilities" means one or more debt facilities (including, without
limitation, the Senior Credit Facility) or commercial paper facilities with
banks or other institutional lenders providing for revolving credit loans, term
loans, receivables financing (including through the sale of receivables to such
lenders or to special purpose entities formed to borrow from such lenders
against such receivables) or letters of credit, in each case, as amended,
restated, modified, renewed, refunded, replaced or refinanced in whole or in
part from time to time.
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"Debt to Adjusted Consolidated Cash Flow Ratio" means, as of any date of
determination, the ratio of:
(1) the Consolidated Indebtedness of CCIC as of such date to
(2) the Adjusted Consolidated Cash Flow of CCIC as of such date.
"Default" means any event that is, or with the passage of time or the giving
of notice or both would be, an Event of Default.
"Disqualified Stock" means any Capital Stock that, by its terms (or by the
terms of any security into which it is convertible or for which it is
exchangeable, in each case, at the option of the holder thereof), or upon the
happening of any event, matures or is mandatorily redeemable, pursuant to a
sinking fund obligation or otherwise, or redeemable at the option of the holder
thereof, in whole or in part, on or prior to the date that is 91 days after the
date on which the notes mature; provided, however, that any Capital Stock that
would constitute Disqualified Stock solely because the holders thereof have the
right to require CCIC to repurchase such Capital Stock upon the occurrence of a
Change of Control or an Asset Sale shall not constitute Disqualified Stock if
the terms of such Capital Stock provide that CCIC may not repurchase or redeem
any such Capital Stock pursuant to such provisions unless such repurchase or
redemption complies with the covenant described above under the caption "--
Certain Covenants--Restricted Payments."
"Eligible Indebtedness" means any Indebtedness other than:
(1) Indebtedness in the form of, or represented by, bonds or other
securities or any guarantee thereof; and
(2) Indebtedness that is, or may be, quoted, listed or purchased and sold
on any stock exchange, automated trading system or over-the-counter or
other securities market (including, without prejudice to the generality of
the foregoing, the market for securities eligible for resale pursuant to
Rule 144A under the Securities Act of 1933).
"Equity Interests" means Capital Stock and all warrants, options or other
rights to acquire Capital Stock (but excluding any debt security that is
convertible into, or exchangeable for, Capital Stock).
"Excess Proceeds" has the meaning set forth above under the caption
"Repurchase at the Option of Holders--Asset Sales."
"Existing Indebtedness" means Indebtedness of CCIC and its Subsidiaries
(other than Indebtedness under the Senior Credit Facility) in existence on the
date of the indentures, until such amounts are repaid.
"Full Accretion Date" means August 1, 2004.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as have been approved by a significant segment of the accounting
profession, which are in effect on the date of the indenture.
"Guarantee" means a guarantee (other than by endorsement of negotiable
instruments for collection in the ordinary course of business), direct or
indirect, in any manner (including, without limitation, by way of a pledge of
assets or through letters of credit or reimbursement agreements in respect
thereof), of all or any part of any Indebtedness.
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"Hedging Obligations" means, with respect to any Person, the obligations of
such Person under:
(1) interest rate swap agreements, interest rate cap agreements and
interest rate collar agreements; and
(2) other agreements or arrangements designed to protect such Person
against fluctuations in interest rates or currency exchange rates.
"Holder" means a Person in whose name a note is registered.
"Indebtedness" means, with respect to any Person, any indebtedness of such
Person, whether or not contingent, in respect of borrowed money or evidenced by
bonds, notes, debentures or similar instruments or letters of credit (or
reimbursement agreements in respect thereof) or banker's acceptances or
representing Capital Lease Obligations or the balance deferred and unpaid of
the purchase price of any property or representing any Hedging Obligations,
except any such balance that constitutes an accrued expense or trade payable,
if and to the extent any of the foregoing indebtedness (other than letters of
credit and Hedging Obligations) would appear as a liability upon a balance
sheet of such Person prepared in accordance with GAAP, as well as all
Indebtedness of others secured by a Lien on any asset of such Person whether or
not such Indebtedness is assumed by such Person (the amount of such
Indebtedness as of any date being deemed to be the lesser of the value of such
property or assets as of such date or the principal amount of such Indebtedness
of such other Person so secured) and, to the extent not otherwise included, the
Guarantee by such Person of any Indebtedness of any other Person. The amount of
any Indebtedness outstanding as of any date shall be:
(1) the accreted value thereof, in the case of any Indebtedness issued
with original issue discount; and
(2) the principal amount thereof, together with any interest thereon that
is more than 30 days past due, in the case of any other Indebtedness.
"Investments" means, with respect to any Person, all investments by such
Person in other Persons (including Affiliates) in the forms of direct or
indirect loans (including guarantees of Indebtedness or other obligations),
advances or capital contributions (excluding commission, travel and similar
advances to officers and employees made in the ordinary course of business),
purchases or other acquisitions for consideration of Indebtedness, Equity
Interests or other securities, together with all items that are or would be
classified as investments on a balance sheet prepared in accordance with GAAP.
If CCIC or any Restricted Subsidiary of CCIC sells or otherwise disposes of any
Equity Interests of any direct or indirect Subsidiary of CCIC or a Restricted
Subsidiary of CCIC issues any of its Equity Interests such that, in each case,
after giving effect to any such sale or disposition, such Person is no longer a
Restricted Subsidiary of CCIC, CCIC shall be deemed to have made an Investment
on the date of any such sale or disposition equal to the fair market value of
the Equity Interests of such Subsidiary not sold or disposed of in an amount
determined as provided in the final paragraph of the covenant described above
under the caption "--Certain Covenants--Restricted Payments."
"Legal Defeasance" has the meaning set forth above under the caption "Legal
Defeasance and Covenant Defeasance."
"Lien" means, with respect to any asset, any mortgage, lien, pledge, charge,
security interest or encumbrance of any kind in respect of such asset, whether
or not filed, recorded or otherwise perfected under applicable law (including
any conditional sale or other title retention agreement, any lease in the
nature thereof, any option or other agreement to sell or give a security
interest in and any filing of or agreement to give any financing statement
under the Uniform Commercial Code (or equivalent statutes) of any
jurisdiction).
67
"Net Income" means, with respect to any Person, the net income (loss) of such
Person, determined in accordance with GAAP and before any reduction in respect
of preferred stock dividends, excluding, however:
(1) any gain or loss, together with any related provision for taxes on
such gain or loss, realized in connection with:
(a) any Asset Sale (including, without limitation, dispositions
pursuant to sale and leaseback transactions); or
(b) the disposition of any securities by such Person or any of its
Restricted Subsidiaries or the extinguishment of any Indebtedness of
such Person or any of its Restricted Subsidiaries; and
(2) any extraordinary gain or loss, together with any related provision
for taxes on such extraordinary gain or loss.
"Net Proceeds" means the aggregate cash proceeds received by CCIC or any of
its Restricted Subsidiaries in respect of any Asset Sale (including, without
limitation, any cash received upon the sale or other disposition of any non-
cash consideration received in any Asset Sale), net of:
(1) the direct costs relating to such Asset Sale (including, without
limitation, legal, accounting and investment banking fees, and sales
commissions) and any relocation expenses incurred as a result thereof;
(2) taxes paid or payable as a result thereof (after taking into account
any available tax credits or deductions and any tax sharing arrangements);
(3) amounts required to be applied to the repayment of Indebtedness
(other than Indebtedness under a Credit Facility) secured by a Lien on the
asset or assets that were the subject of such Asset Sale;
(4) all distributions and other payments required to be made to minority
interest holders in Restricted Subsidiaries as a result of such Asset Sale;
(5) the deduction of appropriate amounts provided by the seller as a
reserve in accordance with GAAP against any liabilities associated with the
assets disposed of in such Asset Sale and retained by CCIC or any
Restricted Subsidiary after such Asset Sale; and
(6) without duplication, any reserves that CCIC's board of directors
determines in good faith should be made in respect of the sale price of
such asset or assets for post closing adjustments;
provided that in the case of any reversal of any reserve referred to in clause
(5) or (6) above, the amount so reversed shall be deemed to be Net Proceeds
from an Asset Sale as of the date of such reversal.
"Non-Recourse Debt" means Indebtedness:
(1) as to which neither CCIC nor any of its Restricted Subsidiaries:
(a) provides credit support of any kind (including any undertaking,
agreement or instrument that would constitute Indebtedness);
(b) is directly or indirectly liable (as a guarantor or otherwise);
or
(c) constitutes the lender;
(2) no default with respect to which (including any rights that the
holders thereof may have to take enforcement action against an Unrestricted
Subsidiary) would permit (upon notice, lapse
68
of time or both) any holder of any other Indebtedness of CCIC or any of its
Restricted Subsidiaries to declare a default on such other Indebtedness or
cause the payment thereof to be accelerated or payable prior to its stated
maturity; and
(3) as to which the lenders have been notified in writing that they will
not have any recourse to the stock or assets of CCIC or any of its
Restricted Subsidiaries (except that this clause (3) will not apply to any
Indebtedness incurred by CTSH and its Subsidiaries prior to the date CTSH
became a Subsidiary).
"Payment Default" has the meaning set forth above under the caption "Events
of Default and Remedies."
"Permitted Business" means any business conducted by CCIC, its Restricted
Subsidiaries or CTSH and its Subsidiaries on the date of the indenture and any
other business related, ancillary or complementary to any such business.
"Permitted Investments" means:
(1) any Investment in CCIC or in a Restricted Subsidiary of CCIC;
(2) any Investment in Cash Equivalents;
(3) any Investment by CCIC or any Restricted Subsidiary of CCIC in a
Person, if as a result of such Investment:
(a) such Person becomes a Restricted Subsidiary of CCIC; or
(b) such Person is merged, consolidated or amalgamated with or into,
or transfers or conveys substantially all of its assets to, or is
liquidated into, CCIC or a Restricted Subsidiary of CCIC;
(4) any Restricted Investment made as a result of the receipt of non-cash
consideration from an Asset Sale that was made pursuant to and in
compliance with the covenant described above under the caption "--
Repurchase at the Option of Holders--Asset Sales";
(5) any acquisition of assets solely in exchange for the issuance of
Equity Interests (other than Disqualified Stock) of CCIC;
(6) receivables created in the ordinary course of business;
(7) loans or advances to employees made in the ordinary course of
business not to exceed $2.0 million at any one time outstanding;
(8) securities and other assets received in settlement of trade debts or
other claims arising in the ordinary course of business;
(9) purchases of additional Equity Interests in CTSH for cash pursuant to
the governance agreement as the same is in effect on the date of the Senior
Discount Note Indenture for aggregate cash consideration not to exceed
$20.0 million since the beginning of the quarter during which the Senior
Discount Note Indenture is executed;
(10) the Investment of up to an aggregate of $100.0 million (each such
Investment being measured as of the date made and without giving effect to
subsequent changes in value); and
(11) other Investments in Permitted Businesses not to exceed an amount
equal to $10.0 million plus 10% of CCIC's Consolidated Tangible Assets at
any one time outstanding (each such Investment being measured as of the
date made and without giving effect to subsequent changes in value).
69
"Permitted Liens" means:
(1) Liens securing Eligible Indebtedness of CCIC under one or more Credit
Facilities that was permitted by the terms of the indentures to be
incurred;
(2) Liens securing any Indebtedness of any of CCIC's Restricted
Subsidiaries that was permitted by the terms of the indentures to be
incurred;
(3) Liens in favor of CCIC;
(4) Liens existing on the date of the indentures;
(5) Liens for taxes, assessments or governmental charges or claims that
are not yet delinquent or that are being contested in good faith by
appropriate proceedings promptly instituted and diligently concluded;
provided that any reserve or other appropriate provision as shall be
required in conformity with GAAP shall have been made therefor;
(6) Liens securing Indebtedness permitted to be incurred under clause (5)
of the second paragraph of the covenant described above under the caption
"--Certain Covenants--Incurrence of Indebtedness and Issuance of Preferred
Stock"; and
(7) Liens incurred in the ordinary course of business of CCIC or any
Restricted Subsidiary of CCIC with respect to obligations that do not
exceed $5.0 million at any one time outstanding and that:
(a) are not incurred in connection with the borrowing of money or the
obtaining of advances or credit (other than trade credit in the
ordinary course of business); and
(b) do not in the aggregate materially detract from the value of the
property or materially impair the use thereof in the operation of
business by CCIC or such Restricted Subsidiary.
"Permitted Refinancing Indebtedness" means any Indebtedness of CCIC 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 CCIC or any of its Restricted Subsidiaries (other than
intercompany Indebtedness); provided that:
(1) the principal amount (or initial accreted value, if applicable) of
such Permitted 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 expenses and prepayment premiums incurred in
connection therewith);
(2) such Permitted Refinancing Indebtedness has a final maturity date
later than the final maturity date of, and has a Weighted Average Life to
Maturity equal to or greater than the Weighted Average Life to Maturity of,
the Indebtedness being extended, refinanced, renewed, replaced, defeased or
refunded;
(3) if the Indebtedness being extended, refinanced, renewed, replaced,
defeased or refunded is subordinated in right of payment to the notes, such
Permitted Refinancing Indebtedness 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
(4) such Indebtedness is incurred either by CCIC or by the Restricted
Subsidiary who is the obligor on the Indebtedness being extended,
refinanced, renewed, replaced, defeased or refunded.
"Person" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
government or agency or political subdivision thereof
70
(including any subdivision or ongoing business of any such entity or
substantially all of the assets of any such entity, subdivision or business).
"Principals" means Berkshire Fund III, Limited Partnership; Berkshire Fund
IV, Limited Partnership; Berkshire Investors LLC; Berkshire Partners LLC;
Centenial Fund IV, L.P.; Centenial Fund V, L.P.; Centenial Entrepreneurs Fund
V, L.P.; Nassau Capital Partners II, L.P.; NAS Partners I, L.L.C., and TdF and
any Related Party of the foregoing.
"Public Equity Offering" means an underwritten primary public offering of
common stock of CCIC pursuant to an effective registration statement under the
Securities Act of 1933.
"Related Party" with respect to any Principal means:
(1) any controlling stockholder, 80% (or more) owned Subsidiary of such
Principal; or
(2) any trust, corporation, partnership or other entity, the
beneficiaries, stockholders, members, partners, owners or Persons
beneficially holding an 80% or more controlling interest of which consist
of such Principal and/or such other Persons referred to in the immediately
preceding clause (1).
"Restricted Investment" means an Investment other than a Permitted
Investment.
"Restricted Subsidiary" of a Person means any Subsidiary of the referent
Person that is not an Unrestricted Subsidiary.
"Senior Credit Facility" means that certain Amended and Restated Loan
Agreement, dated as of July 10, 1998, by and among Key Corporate Capital Inc.
and PNC Bank, National Association, as arrangers and agents for the financial
institutions listed therein, and Crown Communication Inc. and Crown Castle
International Corp. de Puerto Rico, including any related notes, guarantees,
collateral documents, instruments and agreements executed in connection
therewith, and in each case as amended, modified, renewed, refunded, replaced
or refinanced from time to time.
"Senior Discount Note Indenture" means that certain indenture, dated as of
May 15, 1999, between CCIC and the United States Trust Company of New York, as
trustee, governing CCIC's 10 3/8% Senior Discount Notes due 2011.
"Significant Subsidiary" means, with respect to any Person, any Restricted
Subsidiary of such Person that would be a "significant subsidiary" of such
Person as defined in Article 1, Rule 1-02 of Regulation S-X, promulgated
pursuant to the Act, as such Regulation is in effect on the date hereof, except
that all references to "10 percent" in Rule 1-02(w)(1), (2) and (3) shall mean
"5 percent" and that all Unrestricted Subsidiaries of CCIC shall be excluded
from all calculations under Rule 1-02(w).
"Stated Maturity" means, with respect to any installment of interest or
principal on any series of Indebtedness, the date on which such payment of
interest or principal was scheduled to be paid in the original documentation
governing such Indebtedness, and shall not include any contingent obligations
to repay, redeem or repurchase any such interest or principal prior to the date
originally scheduled for the payment thereof.
"Strategic Equity Investment" means a cash contribution to the common equity
capital of CCIC or a purchase from CCIC of common Equity Interests (other than
Disqualified Stock), in either case by or from a Strategic Equity Investor and
for aggregate cash consideration of at least $50.0 million.
"Strategic Equity Investor" means a Person engaged in a Permitted Business
whose Total Equity Market Capitalization exceeds $1.0 billion.
71
"Subsidiary" means, with respect to any Person:
(1) any corporation, association or other business entity of which more
than 50% of the total voting power of shares of Capital Stock entitled
(without regard to the occurrence of any contingency) to vote in the
election of directors, managers or trustees thereof is at the time owned or
controlled, directly or indirectly, by such Person or one or more of the
other Subsidiaries of that Person (or a combination thereof); and
(2) any partnership:
(a) the sole general partner or the managing general partner of which
is such Person or a Subsidiary of such Person; or
(b) the only general partners of which are such Person or of one or
more Subsidiaries of such Person (or any combination thereof).
"Total Equity Market Capitalization" of any Person means, as of any day of
determination, the sum of:
(1) the product of:
(a) 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); multiplied by
(b) the average closing price of such common stock listed on a
national securities exchange or the Nasdaq National Market System over
the 20 consecutive business days immediately preceding such day; plus
(2) the liquidation value of any outstanding shares of preferred stock of
such Person on such day.
"Tower Asset Exchange" means any transaction in which CCIC or one of its
Restricted Subsidiaries exchanges assets for Tower Assets and/or cash or Cash
Equivalents where the fair market value (evidenced by a resolution of the board
of directors set forth in an officers' certificate delivered to the trustee) of
the Tower Assets and cash or Cash Equivalents received by CCIC and its
Restricted Subsidiaries in such exchange is at least equal to the fair market
value of the assets disposed of in such exchange.
"Tower Assets" means wireless transmission towers and related assets that are
located on the site of a transmission tower.
"Tower Cash Flow" means, for any period, the Consolidated Cash Flow of CCIC
and its Restricted Subsidiaries for such period that is directly attributable
to site rental revenue or license fees paid to lease or sublease space on
communication sites owned or leased by CCIC, all determined on a consolidated
basis and in accordance with GAAP. Tower Cash Flow will not include revenue or
expenses attributable to non-site rental services provided by CCIC or any of
its Restricted Subsidiaries to lessees of communication sites or revenues
derived from the sale of assets.
"Unrestricted Subsidiary" means any Subsidiary of CCIC that is designated by
the board of directors as an Unrestricted Subsidiary pursuant to a board
resolution; but only to the extent that such Subsidiary:
(1) has no Indebtedness other than Non-Recourse Debt;
(2) is not party to any agreement, contract, arrangement or understanding
with CCIC or any Restricted Subsidiary of CCIC unless the terms of any such
agreement, contract, arrangement or
72
understanding are no less favorable to CCIC or such Restricted Subsidiary
than those that might be obtained at the time from Persons who are not
Affiliates of CCIC;
(3) is a Person with respect to which neither CCIC nor any of its
Restricted Subsidiaries has any direct or indirect obligation:
(a) to subscribe for additional Equity Interests; or
(b) to maintain or preserve such Person's financial condition or to
cause such Person to achieve any specified levels of operating results;
(4) has not guaranteed or otherwise directly or indirectly provided
credit support for any Indebtedness of CCIC or any of its Restricted
Subsidiaries; and
(5) has at least one director on its board of directors that is not a
director or executive officer of CCIC or any of its Restricted Subsidiaries
and has at least one executive officer that is not a director or executive
officer of CCIC or any of its Restricted Subsidiaries.
Any such designation by the board of directors shall be evidenced to the
trustee by filing with the trustee a certified copy of the board resolution
giving effect to such designation and an officers' certificate certifying that
such designation complied with the foregoing conditions and was permitted by
the covenant described above under the caption "--Certain Covenants--Restricted
Payments." If, at any time, any Unrestricted Subsidiary would fail to meet the
foregoing requirements as an Unrestricted Subsidiary, it shall thereafter cease
to be an Unrestricted Subsidiary for purposes of the Indenture and any
Indebtedness of that Subsidiary shall be deemed to be incurred by a Restricted
Subsidiary of CCIC as of such date (and, if such Indebtedness is not permitted
to be incurred as of such date under the covenant described above under the
caption "--Certain Covenants--Incurrence of Indebtedness and Issuance of
Preferred Stock," CCIC shall be in default of such covenant). The board of
directors of CCIC may at any time designate any Unrestricted Subsidiary to be a
Restricted Subsidiary; provided that the designation shall be deemed to be an
incurrence of Indebtedness by a Restricted Subsidiary of CCIC of any
outstanding Indebtedness of such Unrestricted Subsidiary and the designation
shall only be permitted if:
(1) such Indebtedness is permitted under the covenant described above
under the caption "--Certain Covenants--Incurrence of Indebtedness and
Issuance of Preferred Stock," calculated on a pro forma basis as if such
designation had occurred at the beginning of the four-quarter reference
period; and
(2) no Default would occur or be in existence following such designation.
"Voting Stock" of any Person as of any date means the Capital Stock of such
Person that is at the time entitled to vote in the election of the board of
directors of such Person.
"Weighted Average Life to Maturity" means, when applied to any Indebtedness
at any date, the number of years obtained by dividing:
(1) 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
(2) the then outstanding principal amount of such Indebtedness.
"Wholly Owned Restricted Subsidiary" of any Person means a Restricted
Subsidiary of such Person all of the outstanding Capital Stock or other
ownership interests of which (other than directors' qualifying shares) shall at
the time be owned by such Person or by one or more Wholly Owned Restricted
Subsidiaries of such Person and one or more Wholly Owned Restricted
Subsidiaries of such Person.
73
CERTAIN U.S. FEDERAL INCOME TAX CONSIDERATIONS
The following discussion is a summary of certain U.S. Federal income tax
consequences of the exchange offer to holders of old notes, but is not a
complete analysis of all potential tax effects. The summary below is based upon
the Internal Revenue Code of 1986, as amended (the "Code"), regulations of the
Treasury Department, administrative rulings and pronouncements of the Internal
Revenue Service and judicial decisions, all of which are subject to change,
possibly with retroactive effect. This summary does not address all the U.S.
Federal income tax consequences that may be applicable to particular holders,
including dealers in securities, financial institutions, insurance companies
and tax-exempt organizations. In addition, this summary does not consider the
effect of any foreign, state, local, gift, estate or other tax laws that may be
applicable to a particular holder. This summary applies only to a holder that
acquired old notes at original issue for cash and holds such old notes as a
capital asset within the meaning of Section 1221 of the Code. Holders of old
notes considering the exchange offer should consult their own tax advisors
concerning the U.S. federal income tax consequences in light of their
particular situations as well as any consequences arising under the laws of any
other taxing jurisdiction.
An exchange of old notes for new notes pursuant to the exchange offer will
not be treated as a taxable exchange or other taxable event for U.S. Federal
income tax purposes. Accordingly, there will be no U.S. Federal income tax
consequences to holders who exchange their old notes for new notes in
connection with the exchange offer and any such holder will have the same
adjusted tax basis and holding period in the new notes as it had in the old
notes immediately before the exchange.
The foregoing discussion of certain U.S. Federal income tax considerations
does not consider the facts and circumstances of any particular holder's
situation or status. Accordingly, each holder of old notes should consult its
own tax advisor regarding the tax consequences of the exchange offer to it,
including those under state, foreign and other tax laws.
74
PLAN OF DISTRIBUTION
Each broker-dealer that receives new notes for its own account in connection
with the exchange offer must acknowledge that it will deliver a prospectus in
connection with any resale of such new notes. This prospectus, as it may be
amended or supplemented from time to time, may be used by a broker-dealer in
connection with resales of new notes received in exchange for old notes where
such old notes were acquired as a result of market-making activities or other
trading activities. We have agreed that for a period of 180 days after the
expiration date, we will make available a prospectus, as amended or
supplemented, meeting the requirements of the Securities Act of 1933 to any
broker-dealer for use in connection with any such resale. In addition, until
(90 days after the date of this prospectus), all dealers effecting
transactions in the new notes may be required to deliver a prospectus.
We will not receive any proceeds from any sale of new notes by broker-
dealers. New notes received by broker-dealers for their own account pursuant to
the exchange offer may be sold from time to time in one or more transactions in
the over-the-counter market, in negotiated transactions, through the writing of
options on the new notes or a combination of such methods of resale, at market
prices prevailing at the time of resale, at prices related to such prevailing
market prices or negotiated prices. Any such resale may be made directly to
purchasers or to or through brokers or dealers who may receive compensation in
the form of commissions or concessions from any such broker-dealer or the
purchasers of any such new notes. Any broker-dealer that resells new notes that
were received by it for its own account pursuant to the exchange offer and any
broker or dealer that participates in a distribution of such new notes may be
deemed to be an "underwriter" within the meaning of the Securities Act of 1933,
and any profit on any such resale of new notes and any commissions or
concessions received by any such persons may be deemed to be underwriting
compensation under the Securities Act of 1933. The letter of transmittal states
that by acknowledging that it will deliver and by delivering a prospectus, a
broker-dealer will not be deemed to admit that it is an "underwriter" within
the meaning of the Securities Act of 1933.
75
LEGAL MATTERS
Certain legal matters will be passed upon for us by Cravath, Swaine & Moore,
New York, New York.
EXPERTS
The consolidated financial statements of CCIC at December 31, 1997 and 1998,
and for each of the years in the three-year period ended December 31, 1998, the
financial statements of the Home Service Transmission business of the BBC at
March 31, 1996 and for the year ended March 31, 1996 and the period from April
1, 1996 to February 27, 1997, the consolidated financial statements of CTSH at
March 31, 1997 and December 31, 1997 and for the period from February 28, 1997
to March 31, 1997 and the period from April 1, 1997 to December 31, 1997, the
financial statements of the Bell Atlantic Mobile Tower Operations at December
31, 1998 and for each of the years in the two-year period ended December 31,
1998 and the financial statements of the Powertel Tower Operations at December
31, 1998 and for the year ended December 31, 1998, have been incorporated by
reference in this prospectus in reliance upon the report of KPMG LLP,
independent certified public accountants, and upon the authority of said firm
as experts in accounting and auditing.
CERTAIN CURRENCY TRANSLATIONS
CTSH publishes its consolidated financial statements in pounds sterling. For
the convenience of the reader, this prospectus contains translations of certain
pound sterling amounts into U.S. dollars at specified rates, or, if not so
specified, at the noon buying rate in New York City for cable transfers in
pounds sterling as certified for customs purposes by the Federal Reserve Bank
of New York on June 30, 1999, of (Pounds)1.00 = $1.5765. No representation is
made that the pound sterling amounts have been, could have been or could be
converted into U.S. dollars at the rates indicated or any other rates. On
September 20, 1999, the noon buying rate was (Pounds)1.00 = $1.6200.
76
$125,000,000 9 1/2% Senior Notes Due 2011
$260,000,000 11 1/4 Senior Discount Notes Due 2011
CROWN
[LOGO] CASTLE
INTERNATIONAL
CROWN CASTLE INTERNATIONAL CORP.
Offer to Exchange
all Outstanding 9 1/2% Senior Notes Due 2011 for
9 1/2% Senior Notes Due 2011, which have been Registered under the Securities
Act of 1933
and
all Outstanding 11 1/4% Senior Discount Notes Due 2011,
for 11 1/4% Senior Discount Notes Due 2011, which have been Registered
under the Securities Act of 1933
----------------
Prospectus
, 1999
----------------
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
Item 20. Indemnification of Directors and Officers
Section 145 of the General Corporation Law of the State of Delaware ("DGCL")
provides that a corporation has the power to indemnify any director or officer,
or former director or officer, who was or is a party or is threatened to be
made a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative (other
than an action by or in the right of the corporation) against the expenses
(including attorney's fees), judgments, fines or amounts paid in settlement
actually and reasonably incurred by them in connection with the defense of any
action by reason of being or having been directors or officers, if such person
shall have acted in good faith and in a manner reasonably believed to be in or
not opposed to the best interests of the corporation, and, with respect to any
criminal action or proceeding, provided that such person had no reasonable
cause to believe his conduct was unlawful, except that, if such action shall be
in the right of the corporation, no such indemnification shall be provided as
to any claim, issue or matter as to which such person shall have been judged to
have been liable to the corporation unless and to the extent that the Court of
Chancery of the State of Delaware (the "Court of Chancery"), or any court in
such suit or action was brought, shall determine upon application that, in view
of all of the circumstances of the case, such person is fairly and reasonably
entitled to indemnify for such expenses as such court shall deem proper.
Accordingly, the Restated Certificate of Incorporation of the Company provide
that the Company shall, to the maximum extent permitted under the DGCL
indemnify each person who is or was a director or officer of the Company. The
Company may, by action of the Board of Directors, indemnify other employees and
agents of the Corporation, directors, officers, employees or agents of a
subsidiary, and each person serving as a director, officer, partner, member,
employee or agent or another corporation, partnership, limited liability
company, joint venture, trust or other enterprise, at the request of the
Company, with the same scope and effect as the indemnification of directors and
officers of the Company. Notwithstanding the foregoing, the Company shall be
required to indemnify any person seeking indemnification in connection with a
proceeding (or part thereof) initiated by such person only if such proceeding
(or part thereof) was authorized by the Board of Directors or is a proceeding
to enforce such person's claim to indemnification pursuant to the rights
granted by the Restated Certificate of Incorporation or otherwise by the
Company. The Company may also enter into one or more agreements with any person
which provide for indemnification greater or different than that provided in
the Restated Certificate of Incorporation.
Furthermore, a director of the Company shall not be liable to the Company or
its stockholders for monetary damages for breach of fiduciary duty as a
director, except for liability (1) for any breach of the director's duty of
loyalty to the Company or its stockholders, (2) for acts or omissions not in
good faith or which involve intentional misconduct or a knowing violation of
law, (3) under Section 174 of the DGCL, or (4) for any transaction from which
the director derived an improper personal benefit.
The Company's By-laws provide that each person who was or is made a party or
is threatened to be made a party to or is involved in any manner in any
threatened, pending or completed action, suit, or proceeding, whether civil,
criminal, administrative or investigative ("Proceeding"), by reason of the fact
that he or she or a person of whom he or she is the legal representative is or
was a director or officer of the Company or, while a director or officer of the
Company, a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise shall be indemnified and
held harmless by the Company to the fullest extent permitted by the DGCL. Such
indemnification shall continue as to a person who has ceased to be a director
or officer and shall inure to the benefit of his or her heirs, executors and
administrators; provided, however, that the
II-1
Company shall indemnify any such person seeking indemnification in connection
with a Proceeding (or part thereof) initiated by such person only if such
Proceeding (or part thereof) was authorized by the Board of Directors or is a
Proceeding to enforce such person's claim to indemnification pursuant to the
rights granted by the Company's By-laws. The Company shall pay the expenses
incurred by any person described in the first two sentences of this paragraph
in defending any such Proceeding in advance of its final disposition upon, to
the extent such an undertaking is required by applicable law, receipt of an
undertaking by or on behalf of such person to repay such amount if it shall
ultimately be determined that such person is not entitled to be indemnified by
the Company as authorized in the Company's By-laws or otherwise.
The Company's By-laws further provide that the indemnification and the
advancement of expenses incurred in defending a Proceeding prior to its final
disposition provided by, or granted pursuant to, the Company's By-laws shall
not be exclusive of any other right which any person may have or hereafter
acquire under any statute, provision of the Restated Certificate of
Incorporation, other provision of the Company's By-laws or otherwise. The
Company may also maintain insurance, at its expense, to protect itself and any
person who is or was a director, officer, partner, member, employee or agent of
the Company or a subsidiary or of another corporation, partnership, limited
liability company, joint venture, trust or other enterprise against any
expense, liability or loss, whether or not the Company would have the power to
indemnify such person against such expense, liability or loss under the DGCL.
The Company's By-laws further provide that the Company may, to the extent
authorized from time to time by the Board of Directors, grant rights to
indemnification, and rights to be paid by the Company the expenses incurred in
defending any Proceeding in advance of its final disposition, to any person who
is or was an employee or agent (other than a director or officer) of the
Company or a subsidiary thereof and to any person who is or was serving at the
request of the Company or a subsidiary thereof as a director, officer, partner,
member, employee or agent of another corporation, partnership, limited
liability company, joint venture, trust or other enterprise, including service
with respect to employee benefit plans maintained or sponsored by the Company
or a subsidiary thereof, to the fullest extent of the provisions of the
Company's By-laws with respect to the indemnification and advancement of
expenses of directors and officers of the Company.
Item 21. Exhibits and Financial Statement Schedules
(a) Exhibits
Exhibit
No. Description of Exhibit
------- ----------------------
||2.1 Formation Agreement, dated December 8, 1998, relating to the formation
of Crown Atlantic Company LLC, Crown Atlantic Holding Sub LLC, and
Crown Atlantic Holding Company LLC
v2.2 Letter of Agreement, dated March 5, 1999, between Crown Castle
International Corp. and BellSouth Mobility Inc. (including the Form of
Sublease)
@@2.3 Framework Agreement, dated March 5, 1999, between One2One and Castle
Transmission International Ltd.
@2.4 Amendment Number 1 to Formation Agreement, dated March 31, 1999, among
Crown Castle International Corp., Cellco Partnership, doing business
as Bell Atlantic Mobile, certain Transferring Partnerships and CCA
Investment Corp.
@2.5 Crown Atlantic Company LLC Operating Agreement entered into as of
March 31, 1999 by and between Cellco Partnership, doing business as
Bell Atlantic Mobile, and Crown Atlantic Holding Sub LLC
II-2
Exhibit
No. Description of Exhibit
------- ----------------------
##2.6 Letter of Agreement, dated July 1, 1999, among Crown Castle South,
Inc., BellSouth Personal Communications, Inc. and BellSouth Carolinas
PCS, L.P.
#4.1 Indenture, dated as of August 3, 1999, between Crown Castle
International Corp. and United States Trust Company of New York, as
Trustee, relating to the 9 1/2% Senior Notes Due 2011 (including
exhibits)
#4.2 Indenture, dated as of August 3, 1999, between Crown Castle
International Corp. and United States Trust Company of New York, as
Trustee, relating to the 11 1/4% Senior Discount Notes Due 2011
(including exhibits)
4.3 Registration Rights Agreement, dated August 3, 1999, between Crown
Castle International Corp. and the Purchasers referred to therein
+4.4 Indenture, dated as of November 25, 1997, between Crown Castle
International Corp. and United States Trust Company of New York, as
Trustee, relating to the 10 5/8% Senior Discount Notes Due 2007
(including exhibits)
+4.5 Trust Deed related to (Pounds)125,000,000 9% Guaranteed Bonds Due 2007
among Castle Transmission (Finance) PLC, as Issuer, Castle
Transmission International Ltd. and Castle Transmission Services
(Holdings) Ltd., as Guarantors, and The Law Debenture Trust
Corporation p.l.c., as Trustee, dated May 21, 1997
+4.6 First Supplemental Trust Deed related to (Pounds)125,000,000 9%
Guaranteed Bonds Due 2007 among Castle Transmission (Finance) PLC, as
Issuer, Castle Transmission International Ltd. and Castle Transmission
Services (Holdings) Ltd., as Guarantors, and The Law Debenture Trust
Corporation p.l.c., as Trustee, dated October 17, 1997
+4.7 Amended and Restated Stockholders Agreement among Castle Tower Holding
Corp., Edward C. Hutcheson, Jr., Ted B. Miller, Jr., Robert A. Crown
and Barbara Crown and the persons listed on Schedule I thereto, dated
August 15, 1997
@@4.8 Restated Certificate of Incorporation of Crown Castle International
Corp., dated August 21, 1998
@@4.9 Amended and Restated By-laws of Crown Castle International Corp.,
dated August 21, 1998.
@@4.10 Certificate of Designations, Preferences and Relative, Participating,
Optional and other Special Rights of Preferred Stock and
Qualifications, Limitations and Restrictions thereof of 12 3/4% Senior
Exchangeable Preferred Stock Due 2010 and 12 3/4% Series B Senior
Exchangeable Preferred Stock Due 2010 of Crown Castle International
Corp.
@@4.11 Indenture, dated as of December 21, 1998, between Crown Castle
International Corp. and the United States Trust Company of New York,
as Trustee, relating to the 12 3/4% Senior Subordinated Exchange
Debentures Due 2010 (including exhibits)
4.12 Indenture, dated as of May 17, 1999, between Crown Castle
International Corp. and United States Trust Company of New York, as
Trustee, relating to the 9% Senior Notes Due 2011 (including exhibits)
4.13 Indenture, dated as of May 17, 1999, between Crown Castle
International Corp. and United States Trust Company of New York, as
Trustee, relating to the 10 3/8% Senior Discount Notes Due 2011
(including exhibits)
**5 Opinion of Cravath, Swaine & Moore
23.1 Consent of KPMG LLP
**23.2 Consent of Cravath, Swaine & Moore (included in Exhibit 5)
II-3
Exhibit
No. Description of Exhibit
------- ----------------------
24 Powers of Attorney (included on signature page hereto)
25.1 Statement of Eligibility and Qualification under the Trust Indenture
Act of 1939 of United States Trust Company of New York, as Trustee, on
Form T-1, relating to the 9 1/2% Senior Notes Due 2011
25.2 Statement of Eligibility and Qualification under the Trust Indenture
Act of 1939 of United States Trust Company of New York, as Trustee, on
Form T-1, relating to the 11 1/4% Senior Discount Notes Due 2011
**99.1 Form of Letter of Transmittal
**99.2 Form of Notice of Guaranteed Delivery
**99.3 Form of Letters to Brokers, Dealers, Commercial Banks, Trust Companies
and Other Nominees
**99.4 Form of Letter to Clients
**99.5 Form of Tax Guidelines
- --------
** To be filed by amendment.
+ Incorporated by reference to the exhibits with the corresponding exhibit
numbers in the Registration Statement on Form S-4 previously filed by the
Registrant (Registration No. 333-43873).
|| Incorporated by reference to the exhibit previously filed by the
Registrant on Form 8-K (Registration No. 0-24737) dated December 9, 1998.
v Incorporated by reference to the exhibit previously filed by the
Registrant on Form 8-K (Registration No. 0-24737) dated March 8, 1999.
@ Incorporated by reference to the exhibit previously filed by the
Registrant on Form 8-K (Registration No. 0-24737) dated March 31, 1998.
@@ Incorporated by reference to the exhibits with the corresponding exhibit
numbers in the Registration Statement on Form S-4 previously filed by the
Registrant (Registration No. 333-71715).
# Incorporated by reference to the exhibit previously filed by the
Registrant on Form 10-Q (Registration No. 0-24737) for the quarterly
period ended June 30, 1999.
## Incorporated by reference to the exhibit previously filed by the
Registrant on Form 8-K (Registration No. 0-24737) dated July 12, 1999.
(b) Financial Statement Schedules
Schedules not listed above have been omitted because they are not applicable
or because the required information is contained in the financial statements or
notes thereto.
II-4
Item 22. Undertakings
The undersigned Registrant hereby undertakes that insofar as indemnification
for liabilities arising under the Securities Act of 1933 may be permitted to
directors, officers and controlling persons of the Registrant pursuant to the
foregoing provisions described under Item 20 above, or otherwise, the
Registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Securities Act of 1933 and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment by
the Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of any action,
suit or proceeding) is asserted against the Registrant by such director,
officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act of 1933 and will be
governed by the final adjudication of such issue.
The undersigned Registrant hereby undertakes (i) to respond to requests for
information that is incorporated by reference into the Prospectus pursuant to
Items 4, 10(b), 11, or 13 of Form S-4, within one business day of receipt of
such request, and to send the incorporated documents by first class mail or
other equally prompt means. This undertaking also includes documents filed
subsequent to the effective date of the Registration Statement through the date
of responding to the request.
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to section 13(a) or section 15(d) of the
Securities Exchange Act of 1934 (and where applicable, each filing of an
employee benefit plan's annual report pursuant to section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered herein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
The undersigned Registrant hereby undertakes to supply by means of a post-
effective amendment all information concerning a transaction, and the company
being acquired involved therein, that was not the subject of and included in
the Registration Statement when it became effective.
The undersigned Registrant hereby undertakes as follows: that prior to any
public reoffering of the securities registered hereunder through use of a
prospectus which is a part of this Registration Statement, by any person or
party who is deemed to be an underwriter within the meaning of Rule 145(c), the
undersigned undertakes that such reoffering prospectus will contain the
information called for by the applicable registration form with respect to
reofferings by persons who may be deemed underwriters, in addition to the
information called for by the other Items of the applicable form.
The undersigned Registrant hereby undertakes that every prospectus: (i) that
is filed pursuant to the immediately preceding paragraph or (ii) that purports
to meet the requirements of Section 10(a)(3) of the Securities Act of 1933 and
is used in connection with an offering of securities subject to Rule 415, will
be filed as a part of an amendment to the registration statement and will not
be used until such amendment is effective, and that, for purposes of
determining any liability under the Securities Act of 1933, each such post-
effective amendment shall be deemed to be a new registration statement relating
to the securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
II-5
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Houston, State of Texas,
on this 24th day of September, 1999.
Crown Castle International Corp.,
/s/ Charles C. Green, III
by: ________________________________________
Name: Charles C. Green, III
Title:Executive Vice President and
Chief Financial Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Charles C. Green, III and Wesley D. Cunningham,
and each of them, his true and lawful attorneys-in-fact and agents, with full
power of substitution and resubstitution for him and in his name, place and
stead, in any and all capacities, to sign any and all amendments to this
Registration Statement or any registration statement for this offering that is
to be effective upon the filing pursuant to rule 462(b) under the Securities
Act of 1933, and to file the same, with all exhibits thereto, and other
documents in connection therewith, with the Securities and Exchange Commission,
granting unto said attorneys-in-fact and agents full power and authority to do
and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that each of said
attorney-in-fact or his substitute or substitutes, may lawfully do or cause to
be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement has been signed by the following persons in the capacities indicated
on this 24th day of September, 1999.
Signature Title
--------- -----
/s/ Ted B. Miller, Jr. Chief Executive Officer and Chairman of the
______________________________________ Board
Ted B. Miller, Jr.
/s/ David L. Ivy President and Director
______________________________________
David L. Ivy
/s/ Charles C. Green, III Executive Vice President and Chief Financial
______________________________________ Officer (Principal Financial Officer)
Charles C. Green, III
/s/ Wesley D. Cunningham Senior Vice President, Chief Accounting Officer
______________________________________ and Corporate Controller (Principal Accounting
Wesley D. Cunningham Officer)
/s/ Carl Ferenbach Director
______________________________________
Carl Ferenbach
II-6
Signature Title
--------- -----
/s/ Michel Azibert Director
______________________________________
Michel Azibert
/s/ Bruno Chetaille Director
______________________________________
Bruno Chetaille
/s/ Randall A. Hack Director
______________________________________
Randall A. Hack
/s/ Edward C. Hutcheson, Jr. Director
______________________________________
Edward C. Hutcheson, Jr.
/s/ Robert F. McKenzie Director
______________________________________
Robert F. McKenzie
/s/ William A. Murphy, IV Director
______________________________________
William A. Murphy, IV
/s/ Jeffrey H. Schutz Director
______________________________________
Jeffrey H. Schutz
II-7
EXHIBIT INDEX
Exhibit
No. Description of Exhibit
------- ----------------------
||2.1 Formation Agreement, dated December 8, 1998, relating to the formation
of Crown Atlantic Company LLC, Crown Atlantic Holding Sub LLC, and
Crown Atlantic Holding Company LLC
v2.2 Letter of Agreement, dated March 5, 1999, between Crown Castle
International Corp. and BellSouth Mobility Inc. (including the Form of
Sublease)
@@2.3 Framework Agreement, dated March 5, 1999, between One2One and Castle
Transmission International Ltd.
@2.4 Amendment Number 1 to Formation Agreement, dated March 31, 1999, among
Crown Castle International Corp., Cellco Partnership, doing business
as Bell Atlantic Mobile, certain Transferring Partnerships and CCA
Investment Corp.
@2.5 Crown Atlantic Company LLC Operating Agreement entered into as of
March 31, 1999 by and between Cellco Partnership, doing business as
Bell Atlantic Mobile, and Crown Atlantic Holding Sub LLC
##2.6 Letter of Agreement, dated July 1, 1999, among Crown Castle South,
Inc., BellSouth Personal Communications, Inc. and BellSouth Carolinas
PCS, L.P.
#4.1 Indenture, dated as of August 3, 1999, between Crown Castle
International Corp. and United States Trust Company of New York, as
Trustee, relating to the 9 1/2% Senior Notes Due 2011 (including
exhibits)
#4.2 Indenture, dated as of August 3, 1999, between Crown Castle
International Corp. and United States Trust Company of New York, as
Trustee, relating to the 11 1/4% Senior Discount Notes Due 2011
(including exhibits)
4.3 Registration Rights Agreement, dated August 3, 1999, between Crown
Castle International Corp. and the Purchasers referred to therein
+4.4 Indenture, dated as of November 25, 1997, between Crown Castle
International Corp. and United States Trust Company of New York, as
Trustee, relating to the 10 5/8% Senior Discount Notes Due 2007
(including exhibits)
+4.5 Trust Deed related to (Pounds)125,000,000 9% Guaranteed Bonds Due 2007
among Castle Transmission (Finance) PLC, as Issuer, Castle
Transmission International Ltd. and Castle Transmission Services
(Holdings) Ltd., as Guarantors, and The Law Debenture Trust
Corporation p.l.c., as Trustee, dated May 21, 1997
+4.6 First Supplemental Trust Deed related to (Pounds)125,000,000 9%
Guaranteed Bonds Due 2007 among Castle Transmission (Finance) PLC, as
Issuer, Castle Transmission International Ltd. and Castle Transmission
Services (Holdings) Ltd., as Guarantors, and The Law Debenture Trust
Corporation p.l.c., as Trustee, dated October 17, 1997
+4.7 Amended and Restated Stockholders Agreement among Castle Tower Holding
Corp., Edward C. Hutcheson, Jr., Ted B. Miller, Jr., Robert A. Crown
and Barbara Crown and the persons listed on Schedule I thereto, dated
August 15, 1997
@@4.8 Restated Certificate of Incorporation of Crown Castle International
Corp., dated August 21, 1998
@@4.9 Amended and Restated By-laws of Crown Castle International Corp.,
dated August 21, 1998.
@@4.10 Certificate of Designations, Preferences and Relative, Participating,
Optional and other Special Rights of Preferred Stock and
Qualifications, Limitations and Restrictions thereof of 12 3/4% Senior
Exchangeable Preferred Stock Due 2010 and 12 3/4% Series B Senior
Exchangeable Preferred Stock Due 2010 of Crown Castle International
Corp.
Exhibit
No. Description of Exhibit
------- ----------------------
@@4.11 Indenture, dated as of December 21, 1998, between Crown Castle
International Corp. and the United States Trust Company of New York,
as Trustee, relating to the 12 3/4% Senior Subordinated Exchange
Debentures Due 2010 (including exhibits)
4.12 Indenture, dated as of May 17, 1999, between Crown Castle
International Corp. and United States Trust Company of New York, as
Trustee, relating to the 9% Senior Notes Due 2011 (including exhibits)
4.13 Indenture, dated as of May 17, 1999, between Crown Castle
International Corp. and United States Trust Company of New York, as
Trustee, relating to the 10 3/8% Senior Discount Notes Due 2011
(including exhibits)
**5 Opinion of Cravath, Swaine & Moore
23.1 Consent of KPMG LLP
**23.2 Consent of Cravath, Swaine & Moore (included in Exhibit 5)
24 Powers of Attorney (included on signature page hereto)
25.1 Statement of Eligibility and Qualification under the Trust Indenture
Act of 1939 of United States Trust Company of New York, as Trustee, on
Form T-1, relating to the 9 1/2% Senior Notes Due 2011
25.2 Statement of Eligibility and Qualification under the Trust Indenture
Act of 1939 of United States Trust Company of New York, as Trustee, on
Form T-1, relating to the 11 1/4% Senior Discount Notes Due 2011
**99.1 Form of Letter of Transmittal
**99.2 Form of Notice of Guaranteed Delivery
**99.3 Form of Letters to Brokers, Dealers, Commercial Banks, Trust Companies
and Other Nominees
**99.4 Form of Letter to Clients
**99.5 Form of Tax Guidelines
- --------
** To be filed by amendment.
+ Incorporated by reference to the exhibits with the corresponding exhibit
numbers in the Registration Statement on Form S-4 previously filed by the
Registrant (Registration No. 333-43873).
|| Incorporated by reference to the exhibit previously filed by the
Registrant on Form 8-K (Registration No. 0-24737) dated December 9, 1998.
v Incorporated by reference to the exhibit previously filed by the
Registrant on Form 8-K (Registration No. 0-24737) dated March 8, 1999.
@ Incorporated by reference to the exhibit previously filed by the
Registrant on Form 8-K (Registration No. 0-24737) dated March 31, 1998.
@@ Incorporated by reference to the exhibits with the corresponding exhibit
numbers in the Registration Statement on Form S-4 previously filed by the
Registrant (Registration No. 333-71715).
# Incorporated by reference to the exhibit previously filed by the
Registrant on Form 10-Q (Registration No. 0-24737) for the quarterly
period ended June 30, 1999.
## Incorporated by reference to the exhibit previously filed by the
Registrant on Form 8-K (Registration No. 0-24737) dated July 12, 1999.
EXHIBIT 4.3
EXECUTION COPY
Crown Castle International Corp.
9-1/2% Senior Notes due 2011
11-1/4% Senior Discount Notes due 2011
________________
Exchange and Registration Rights Agreement
------------------------------------------
August 3, 1999
Goldman, Sachs & Co.,
As representative of the several Purchasers
named in Schedule I to the Purchase Agreement
c/o Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Ladies and Gentlemen:
Crown Castle International Corp., a Delaware corporation (the "Company"),
proposes to issue and sell to the Purchasers (as defined herein) upon the terms
set forth in the Purchase Agreement (as defined herein) its 9-1/2% Senior Notes
due 2011 and 11-1/4% Senior Discount Notes due 2011. As an inducement to the
Purchasers to enter into the Purchase Agreement and in satisfaction of a
condition to the obligations of the Purchasers thereunder, the Company agrees
with the Purchasers for the benefit of holders (as defined herein) from time to
time of the Registrable Securities (as defined herein) as follows:
1. Certain Definitions. For purposes of this Agreement, the following
terms shall have the following respective meanings:
"Base Interest" shall mean the interest that would otherwise accrue on
the Securities under the terms thereof and the Indentures, without giving
effect to the provisions of this Agreement.
The term "broker-dealer" shall mean any broker or dealer registered
with the Commission under the Exchange Act.
"Business Day" shall mean any day except Saturday, Sunday or other day
in the City of New York on which banks are authorized or ordered to close.
"Closing Date" shall mean the date on which the Securities are
initially issued.
"Commission" shall mean the United States Securities and Exchange
Commission, or any other federal agency at the time administering the
Exchange
Act or the Securities Act, whichever is the relevant statute for the
particular purpose.
"Effective Time," in the case of (i) an Exchange Registration, shall
mean the time and date as of which the Commission declares the Exchange
Registration Statement effective or as of which the Exchange Registration
Statement otherwise becomes effective and (ii) a Shelf Registration, shall
mean the time and date as of which the Commission declares the Shelf
Registration Statement effective or as of which the Shelf Registration
Statement otherwise becomes effective.
"Electing Holder" shall mean any holder of Registrable Securities that
has returned a completed and signed Notice and Questionnaire to the Company
in accordance with Section 3(d)(ii) or 3(d)(iii) hereof.
"Exchange Act" shall mean the Securities Exchange Act of 1934, or any
successor thereto, as the same shall be amended from time to time.
"Exchange Offer" shall have the meaning assigned thereto in Section
2(a) hereof.
"Exchange Registration" shall have the meaning assigned thereto in
Section 3(c) hereof.
"Exchange Registration Statement" shall have the meaning assigned
thereto in Section 2(a) hereof.
"Exchange Securities" shall have the meaning assigned thereto in
Section 2(a) hereof.
The term "holder" shall mean each of the Purchasers and other persons
who acquire Registrable Securities from time to time (including any
successors or assigns), in each case for so long as such person owns any
Registrable Securities.
"Indentures" shall mean the Indentures, both dated as of August 3,
1999, between the Company and the U.S. Trust Company of New York, as
Trustee, as the same shall be amended from time to time.
"Majority Holders" means the holders of a majority of the aggregate
principal amount at maturity of the Registrable Securities satisfying the
terms and conditions for registration under the Exchange Registration
Statement or the Shelf Registration Statement.
"Notice and Questionnaire" means a Notice of Registration Statement
and Selling Securityholder Questionnaire substantially in the form of
Exhibit A hereto.
The term "person" shall mean a corporation (profit or nonprofit),
association, limited liability company, partnership, organization,
business, individual, government or political subdivision thereof or
governmental agency.
"Purchase Agreement" shall mean the Purchase Agreement, dated as of
July 27, 1999, between the Purchasers and the Company relating to the
Securities.
"Purchasers" shall mean the Purchasers named in Schedule I to the
Purchase Agreement.
"Registrable Securities" shall mean the Securities; provided, however,
that a Security shall cease to be a Registrable Security when (i) in the
circumstances contemplated by Section 2(a) hereof, the Security has been
exchanged for an Exchange Security in an Exchange Offer as contemplated in
Section 2(a) hereof (provided that any Exchange Security that, pursuant to
the last two sentences of Section 2(a), is included in a prospectus for use
in connection with resales by broker-dealers shall be deemed to be a
Registrable Security with respect to Sections 5, 6 and 9 until resale of
such Registrable Security has been effected within the 180-day period
referred to in Section 2(a)); (ii) in the circumstances contemplated by
Section 2(b) hereof, a Shelf Registration Statement registering such
Security under the Securities Act has been declared or becomes effective
and such Security has been sold or otherwise transferred by the holder
thereof in accordance with the Shelf Registration Statement; (iii) such
Security is distributed to the public pursuant to Rule 144 under
circumstances in which any legend borne by such Security relating to
restrictions on transferability thereof, under the Securities Act, is
removed by the Company or pursuant to the Indenturess; (iv) such Security
is eligible to be sold pursuant to Rule 144(k); or (v) such Security shall
cease to be outstanding.
"Registration Default" shall have the meaning assigned thereto in
Section 2(c) hereof.
"Registration Expenses" shall have the meaning assigned thereto in
Section 4 hereof.
"Resale Period" shall have the meaning assigned thereto in Section
2(a) hereof.
"Restricted Holder" shall mean (i) a holder that is an affiliate of
the Company within the meaning of Rule 405, (ii) a holder who acquires
Exchange Securities outside the ordinary course of such holder's business,
(iii) a holder who has arrangements or understandings with any person to
participate in the Exchange Offer for the purpose of distributing Exchange
Securities and (iv) a holder that is a broker-dealer, but only with respect
to Exchange Securities received by such broker-dealer pursuant to an
Exchange Offer in exchange for Registrable Securities acquired by the
broker-dealer directly from the Company.
"Rule 144," "Rule 158," "Rule 405" and "Rule 415" shall mean, in each
case, such rule promulgated under the Securities Act (or any successor
provision), as the same shall be amended from time to time.
"Securities" shall mean, collectively, the 9-1/2% Senior Notes due
2011 and the 11-1/4% Senior Discount Notes due 2011 of the Company to be
issued
and sold to the Purchasers, and securities issued in exchange therefor or
in lieu thereof pursuant to the Indenturess.
"Securities Act" shall mean the Securities Act of 1933, or any
successor thereto, as the same shall be amended from time to time.
"Shelf Registration" shall have the meaning assigned thereto in
Section 2(b) hereof.
"Shelf Registration Statement" shall have the meaning assigned thereto
in Section 2(b) hereof.
"Special Interest" shall have the meaning assigned thereto in Section
2(c) hereof.
"Trust Indenture Act" shall mean the Trust Indenture Act of 1939, or
any successor thereto, and the rules, regulations and forms promulgated
thereunder, all as the same shall be amended from time to time.
Unless the context otherwise requires, any reference herein to a "Section"
or "clause" refers to a Section or clause, as the case may be, of this
Agreement, and the words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Agreement as a whole and not to any particular
Section or other subdivision.
2. Registration Under the Securities Act.
A. Except as set forth in Section 2(b) below, the Company agrees to file
under the Securities Act as soon as practicable, but in no event later than 60
days following the Closing Date, a registration statement relating to an offer
to exchange (such registration statement, the "Exchange Registration Statement",
and such offer, the "Exchange Offer") any and all of the Securities for a like
aggregate principal amount of debt securities issued by the Company, which debt
securities are substantially identical to the Securities (and are entitled to
the benefits of trust indentures which are substantially identical to the
Indentures or are the Indentures and which have been qualified under the Trust
Indenture Act), except that they have been registered pursuant to an effective
registration statement under the Securities Act and do not contain provisions
for the additional interest contemplated in Section 2(c) below (such new debt
securities hereinafter called "Exchange Securities"). The Company agrees to use
all commercially reasonable efforts to cause the Exchange Registration Statement
to become effective under the Securities Act at the earliest possible time, but
in no event later than 150 days following the Closing Date. The Exchange Offer
will be registered under the Securities Act on the appropriate form and will
comply with all applicable tender offer rules and regulations under the Exchange
Act. The Company further agrees to use its best efforts to commence and complete
the Exchange Offer on the earliest practicable date, but no later than 30
Business Days after such registration statement has become effective, hold the
Exchange Offer open for at least 20 Business Days and exchange Exchange
Securities for all Registrable Securities that have been properly tendered and
not withdrawn on or prior to the expiration of the Exchange Offer. The Exchange
Offer will be deemed to have been "completed" only if the debt securities
received by holders other than Restricted Holders in the Exchange Offer for
Registrable Securities are, upon receipt, transferable by each
such holder without restriction under the Securities Act and the Exchange Act
and without material restrictions under the blue sky or securities laws of a
substantial majority of the States of the United States of America. The Exchange
Offer shall be deemed to have been completed upon the earlier to occur of (i)
the Company having exchanged the Exchange Securities for all outstanding
Registrable Securities pursuant to the Exchange Offer and (ii) the Company
having exchanged, pursuant to the Exchange Offer, Exchange Securities for all
Registrable Securities that have been properly tendered and not withdrawn before
the expiration of the Exchange Offer, which shall be on a date that is at least
20 days following the commencement of the Exchange Offer. The Company agrees (x)
to include in the Exchange Registration Statement a prospectus for use in any
resales by any holder of Exchange Securities that is a broker-dealer and (y) to
keep such Exchange Registration Statement effective for a period (the "Resale
Period") beginning when Exchange Securities are first issued in the Exchange
Offer and ending upon the earlier of the expiration of the 180th day after the
Exchange Offer has been completed or such time as such broker-dealers no longer
own any Registrable Securities. With respect to such Exchange Registration
Statement, such holders shall have the benefit of the rights of indemnification
and contribution set forth in Sections 6(a), (c), (d) and (e) hereof.
B. If (i) on or prior to the time the Exchange Offer is completed existing
Commission interpretations are changed such that the debt securities received by
holders other than Restricted Holders in the Exchange Offer for Registrable
Securities are not or would not be, upon receipt, transferable by each such
holder without restriction under the Securities Act, (ii) the Exchange Offer has
not been completed within 225 days following the Closing Date or (iii) the
Exchange Offer is not available to any holder of the Securities, the Company
shall, in lieu of (or, in the case of clause (iii), in addition to) conducting
the Exchange Offer contemplated by Section 2(a), file under the Securities Act
on or prior to 45 days after such filing obligation arises, a "shelf"
registration statement providing for the registration of, and the sale on a
continuous or delayed basis by the holders of, all of the Registrable
Securities, pursuant to Rule 415 or any similar rule that may be adopted by the
Commission (such filing, the "Shelf Registration" and such registration
statement, the "Shelf Registration Statement"). The Company agrees to use all
commercially reasonable efforts (x) to cause the Shelf Registration Statement to
become or be declared effective on or prior to 90 days following the filing of
such Shelf Registration Statement and to keep such Shelf Registration Statement
continuously effective for a period ending on the earlier of the second
anniversary of the Effective Time or such time as there are no longer any
Registrable Securities outstanding, provided, however, that no holder shall be
entitled to be named as a selling securityholder in the Shelf Registration
Statement or to use the prospectus forming a part thereof for resales of
Registrable Securities unless such holder is an Electing Holder, and (y) after
the Effective Time of the Shelf Registration Statement, upon the request of any
holder of Registrable Securities that is not then an Electing Holder, to take
any action reasonably necessary to enable such holder to use the prospectus
forming a part thereof for resales of Registrable Securities, including, without
limitation, any action necessary to identify such holder as a selling
securityholder in the Shelf Registration Statement, provided, however, that
nothing in this clause (y) shall relieve any such holder of the obligation to
return a completed and signed Notice and Questionnaire to the Company in
accordance with Section 3(d)(iii) hereof. The Company further agrees to
supplement or make amendments to the Shelf Registration Statement, as and when
required by the rules, regulations or instructions applicable to the
registration form used by the Company for such Shelf Registration Statement or
by the Securities Act or rules and regulations thereunder for
shelf registration and the Company agrees to furnish to each Electing Holder
copies of any such supplement or amendment prior to its being used or promptly
following its filing with the Commission.
C. In the event that (i) the Company has not filed the Exchange
Registration Statement or Shelf Registration Statement on or before the date on
which such registration statement is required to be filed pursuant to Section
2(a) or 2(b), respectively, or (ii) such Exchange Registration Statement or
Shelf Registration Statement has not become effective or been declared effective
by the Commission on or before the date on which such registration statement is
required to become or be declared effective pursuant to Section 2(a) or 2(b),
respectively, or (iii) the Exchange Offer has not been completed within 30
Business Days following the initial effective date of the Exchange Registration
Statement relating to the Exchange Offer (if the Exchange Offer is then required
to be made) or (iv) any Exchange Registration Statement or Shelf Registration
Statement required by Section 2(a) or 2(b) hereof is filed and declared
effective but shall thereafter either be withdrawn by the Company or shall
become subject to an effective stop order issued pursuant to Section 8(d) of the
Securities Act suspending the effectiveness of such registration statement
(except as specifically permitted herein) without being succeeded immediately by
an additional registration statement filed and declared effective (each such
event referred to in clauses (i) through (iv), a "Registration Default" and each
period during which a Registration Default has occurred and is continuing, a
"Registration Default Period"), then, as liquidated damages for such
Registration Default, subject to the provisions of Section 9(b), special
interest ("Special Interest"), in addition to the Base Interest, shall accrue in
an amount equal to $0.05 per week per $1,000 in principal amount at maturity of
Registrable Securities for each week or portion thereof that the Registration
Default Period continues for the first 90-day period immediately following the
occurrence of such Registration Default. The amount of the liquidated damages
shall increase by an additional $0.05 per week per $1,000 in principal amount at
maturity of Registrable Securities with respect to each subsequent 90-day period
until all Registration Defaults have been cured, up to a maximum amount of
liquidated damages for all Registration Defaults of $.50 per week per $1,000 in
principal amount at maturity of Registrable Securities.
D. The Company shall take all actions necessary or advisable to be taken
by it to ensure that the transactions contemplated herein are effected as so
contemplated.
E. Any reference herein to a registration statement as of any time shall
be deemed to include any document incorporated, or deemed to be incorporated,
therein by reference as of such time and any reference herein to any post-
effective amendment to a registration statement as of any time shall be deemed
to include any document incorporated, or deemed to be incorporated, therein by
reference as of such time.
3. Registration Procedures.
If the Company files a registration statement pursuant to Section 2(a) or
Section 2(b), the following provisions shall apply:
A. at or before the Effective Time of the Exchange Registration Statement
or the Shelf Registration Statement, as the case may be, the Company shall
qualify the Indentures under the Trust Indenture Act of 1939;
B. in the event that such qualification would require the appointment of a
new trustee under the Indentures, the Company shall appoint a new trustee
thereunder pursuant to the applicable provisions of the Indentures;
C. in connection with the Company's obligations with respect to the
registration of Exchange Securities as contemplated by Section 2(a) (the
"Exchange Registration"), if applicable, the Company shall:
D. prepare and file with the Commission, in no event later than 60 days
following the Closing Date, an Exchange Registration Statement on any form which
may be utilized by the Company and which shall permit the Exchange Offer and
resales of Exchange Securities by broker-dealers during the Resale Period to be
effected as contemplated by Section 2(a), and use all commercially reasonable
efforts to cause such Exchange Registration Statement to become effective in no
event later than 150 days following the Closing Date;
E. promptly file with the Commission such amendments and supplements to
such Exchange Registration Statement and the prospectus included therein as may
be necessary to effect and maintain the effectiveness of such Exchange
Registration Statement for the periods and purposes contemplated in Section 2(a)
hereof and as may be required by the applicable rules and regulations of the
Commission and the instructions applicable to the form of such Exchange
Registration Statement, and promptly provide each broker-dealer holding Exchange
Securities with such number of copies of the prospectus included therein (as
then amended or supplemented), in conformity in all material respects with the
requirements of the Securities Act and the Trust Indenture Act and the rules and
regulations of the Commission thereunder, as such broker-dealer reasonably may
request prior to the expiration of the Resale Period, for use in connection with
resales of Exchange Securities;
F. promptly notify each broker-dealer that has requested or received
copies of the prospectus included in such registration statement, and confirm
such advice in writing, (A) when such Exchange Registration Statement or the
prospectus included therein or any prospectus amendment or supplement or post-
effective amendment has been filed, and, with respect to such Exchange
Registration Statement or any post-effective amendment, when the same has become
effective, (B) of any comments by the Commission and by the blue sky or
securities commissioner or regulator of any state with respect thereto or any
request by the Commission for amendments or supplements to such Exchange
Registration Statement or prospectus or for additional information, (C) of the
issuance by the Commission of any stop order suspending the effectiveness of
such Exchange Registration Statement or the initiation or threatening of any
proceedings for that purpose, (D) if at any time the representations and
warranties of the Company contemplated by Section 5 cease to be true and correct
in all material respects, (E) of the receipt by the Company of any notification
with respect to the suspension of the qualification of the Exchange Securities
for sale in any jurisdiction or the initiation or threatening of any proceeding
for such purpose, or (F) at any time during the Resale Period when a prospectus
is required to be delivered under the Securities Act, that such Exchange
Registration Statement, prospectus, prospectus amendment or supplement or post-
effective amendment does not conform in all material respects to the applicable
requirements of the Securities Act and the Trust Indenture Act and the rules and
regulations of the Commission thereunder or contains an untrue statement of a
material
fact or omits to state any material fact required to be stated therein or
necessary to make the statements therein not misleading in light of the
circumstances then existing;
G. in the event that the Company would be required, pursuant to Section
3(e)(iii)(F) above, to notify any broker-dealers holding Exchange Securities,
without delay prepare and furnish to each such holder a reasonable number of
copies of a prospectus supplemented or amended so that, as thereafter delivered
to purchasers of such Exchange Securities during the Resale Period, such
prospectus shall conform in all material respects to the applicable requirements
of the Securities Act and the Trust Indenture Act and the rules and regulations
of the Commission thereunder and shall not contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading in light of the
circumstances then existing;
H. use its best efforts to obtain the withdrawal of any order suspending
the effectiveness of such Exchange Registration Statement or any post-effective
amendment thereto at the earliest practicable date;
I. use its best efforts to (A) register or qualify the Exchange Securities
under the securities laws or blue sky laws of such jurisdictions as are
contemplated by Section 2(a) no later than the commencement of the Exchange
Offer, (B) keep such registrations or qualifications in effect and comply with
such laws so as to permit the continuance of offers, sales and dealings therein
in such jurisdictions until the expiration of the Resale Period and (C) take any
and all other actions as may be reasonably necessary or advisable to enable each
broker-dealer holding Exchange Securities to consummate the disposition thereof
in such jurisdictions; provided, however, that the Company shall not be required
for any such purpose to (1) qualify as a foreign corporation in any jurisdiction
wherein it would not otherwise be required to qualify but for the requirements
of this Section 3(c)(vi), (2) consent to general service of process in any such
jurisdiction or (3) make any changes to its certificate of incorporation or by-
laws or any agreement between it and its stockholders;
J. use its best efforts to obtain the consent or approval of each
governmental agency or authority, whether federal, state or local, which may be
required to effect the Exchange Registration, the Exchange Offer and the
offering and sale of Exchange Securities by broker-dealers during the Resale
Period;
K. provide a CUSIP number for all Exchange Securities, not later than the
applicable Effective Time;
L. comply with all applicable rules and regulations of the Commission and
shall make generally available to its securityholders within eighteen months
after the effective date of such Exchange Registration Statement, an earning
statement (which need not be audited) of the Company and its subsidiaries
complying with Section 11(a) of the Securities Act (including, at the option of
the Company, Rule 158 thereunder).
M. in connection with the Company's obligations with respect to the Shelf
Registration, if applicable, the Company shall:
N. prepare and file with the Commission as soon as practicable but in any
case within the time periods specified in Section 2(b), a Shelf Registration
Statement on any form which may be utilized by the Company and which shall
register all of the Registrable Securities for resale by the holders thereof in
accordance with such method or methods of disposition as may be specified by
such of the holders as, from time to time, may be Electing Holders and use its
best efforts to cause such Shelf Registration Statement to become effective
within the time periods specified in Section 2(b);
O. not less than 25 calendar days prior to the Effective Time of the Shelf
Registration Statement, mail the Notice and Questionnaire to the holders of
Registrable Securities; no holder shall be entitled to be named as a selling
securityholder in the Shelf Registration Statement as of the Effective Time, and
no holder shall be entitled to use the prospectus forming a part thereof for
resales of Registrable Securities at any time, unless such holder has returned a
completed and signed Notice and Questionnaire to the Company by the deadline for
response set forth therein; provided, however, holders of Registrable Securities
shall have at least 20 calendar days from the date on which the Notice and
Questionnaire is first mailed to such holders to return a fully completed and
signed Notice and Questionnaire to the Company;
P. after the Effective Time of the Shelf Registration Statement, upon the
request of any holder of Registrable Securities that is not then an Electing
Holder, promptly send a Notice and Questionnaire to such holder; provided that
the Company shall not be required to take any action to name such holder as a
selling securityholder in the Shelf Registration Statement or to enable such
holder to use the prospectus forming a part thereof for resales of Registrable
Securities until such holder has returned a completed and signed Notice and
Questionnaire to the Company;
Q. promptly prepare and file with the Commission such amendments and
supplements to such Shelf Registration Statement and the prospectus included
therein as may be necessary to effect and maintain the effectiveness of such
Shelf Registration Statement for the period specified in Section 2(b) hereof and
as may be required by the applicable rules and regulations of the Commission and
the instructions applicable to the form of such Shelf Registration Statement,
and furnish to the Electing Holders copies of any such supplement or amendment
promptly following its filing with the Commission;
R. comply with the provisions of the Securities Act with respect to the
disposition of all of the Registrable Securities covered by such Shelf
Registration Statement in accordance with the intended methods of disposition by
the Electing Holders provided for in such Shelf Registration Statement;
S. provide (A) the Electing Holders, (B) the underwriters (which term, for
purposes of this Agreement, shall include a person deemed to be an underwriter
within the meaning of Section 2(a)(11) of the Securities Act), if any, thereof,
(C) any sales or placement agent therefor, (D) counsel for any such underwriter
or agent and (E) not more than one counsel for all the Electing Holders the
opportunity to participate in the preparation of such Shelf Registration
Statement, each prospectus included therein or filed with the Commission and
each amendment or supplement thereto;
T. for a reasonable period prior to the filing of such Shelf Registration
Statement, and throughout the period specified in Section 2(b), make available
at reasonable times at
the Company's principal place of business or such other reasonable place for
inspection by the persons referred to in Section 3(d)(vi) who shall certify to
the Company that they have a current intention to sell the Registrable
Securities pursuant to the Shelf Registration such financial and other
information and books and records of the Company, and cause the officers and
employees, counsel and independent certified public accountants of the Company
to respond to such inquiries as shall be reasonably necessary, in the judgment
of the respective counsel referred to in such Section, to conduct a reasonable
investigation within the meaning of Section 11 of the Securities Act; provided,
however, that each such party shall be required to maintain in confidence and
not to disclose to any other person any information or records reasonably
designated by the Company as being confidential, until such time as (A) such
information becomes a matter of public record (whether by virtue of its
inclusion in such registration statement of otherwise) through a third party
without an accompanying obligation of confidentiality, or (B) such person shall
be required so to disclose such information pursuant to a subpoena or order of
any court or other governmental agency or body having jurisdiction over the
matter (subject to the requirements of such order, and only after such person
shall have given the Company prompt prior written notice of such requirement),
or (C) such information is required to be set forth in such Shelf Registration
Statement or the prospectus included therein or in an amendment to such Shelf
Registration Statement or an amendment or supplement to such prospectus in order
that such Shelf Registration Statement, prospectus, amendment or supplement, as
the case may be, complies with applicable requirements of the federal securities
laws and the rules and regulations of the Commission and does not contain an
untrue statement of a material fact or omit to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading in light of the circumstances then existing;
U. promptly notify each of the Electing Holders, any sales or placement
agent therefor and any underwriter thereof (which notification may be made
through any managing underwriter that is a representative of such underwriter
for such purpose) and confirm such advice in writing, (A) when such Shelf
Registration Statement or the prospectus included therein or any prospectus
amendment or supplement or post-effective amendment has been filed, and, with
respect to such Shelf Registration Statement or any post-effective amendment,
when the same has become effective, (B) of any comments by the Commissioner and
by the blue sky or securities commissioner or regulator of any state with
respect thereto or any request by the Commission for amendments or supplements
to such Shelf Registration Statement or prospectus or for additional
information, (C) of the issuance by the Commission of any stop order suspending
the effectiveness of such Shelf Registration Statement or the initiation or
threatening of any proceedings for that purpose, (D) if at any time the
representations and warranties of the Company contemplated by Section 3(d)(xvii)
or Section 5 cease to be true and correct in all material respects, (E) of the
receipt by the Company of any notification with respect to the suspension of the
qualification of the Registrable Securities for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose, or (F) if at any
time when a prospectus is required to be delivered under the Securities Act,
that such Shelf Registration Statement, prospectus, prospectus amendment or
supplement or post-effective amendment does not conform in all material respects
to the applicable requirements of the Securities Act and the Trust Indenture Act
and the rules and regulations of the Commission thereunder or contains an untrue
statement of a material fact or omits to state any material fact required to be
stated therein or necessary to make the statements therein not misleading in
light of the circumstances then existing;
V. use its best efforts to obtain the withdrawal of any order suspending
the effectiveness of such registration statement or any post-effective amendment
thereto at the earliest practicable date;
W. if requested by any managing underwriter or underwriters, any placement
or sales agent or any Electing Holder, promptly incorporate in a prospectus
supplement or post-effective amendment such information as is required by the
applicable rules and regulations of the Commission and as such managing
underwriter or underwriters, such agent or such Electing Holder specifies should
be included therein relating to the terms of the sale of such Registrable
Securities, including information with respect to the principal amount of
Registrable Securities being sold by such Electing Holder or agent or to any
underwriters, the name and description of such Electing Holder, agent or
underwriter, the offering price of such Registrable Securities and any discount,
commission or other compensation payable in respect thereof, the purchase price
being paid therefor by such underwriters and with respect to any other terms of
the offering of the Registrable Securities to be sold by such Electing Holder or
agent or to such underwriters; and make all required filings of such prospectus
supplement or post-effective amendment promptly after notification of the
matters to be incorporated in such prospectus supplement or post-effective
amendment;
X. furnish to each Electing Holder, each placement or sales agent, if any,
therefor, each underwriter, if any, thereof and the respective counsel referred
to in Section 3(d)(vi) an executed copy (or, in the case of an Electing Holder,
a conformed copy) of such Shelf Registration Statement, each such amendment and
supplement thereto (in each case including all exhibits thereto (in the case of
an Electing Holder of Registrable Securities, upon request) and documents
incorporated by reference therein) and such number of copies of such Shelf
Registration Statement (excluding exhibits thereto and documents incorporated by
reference therein unless specifically so requested by such Electing Holder,
agent or underwriter, as the case may be) and of the prospectus included in such
Shelf Registration Statement (including each preliminary prospectus and any
summary prospectus), in conformity in all material respects with the applicable
requirements of the Securities Act and the Trust Indenture Act and the rules and
regulations of the Commission thereunder, and such other documents, as such
Electing Holder, agent, if any, and underwriter, if any, may reasonably request
in order to facilitate the offering and disposition of the Registrable
Securities owned by such Electing Holder, offered or sold by such agent or
underwritten by such underwriter and to permit such Electing Holder, agent and
underwriter to satisfy the prospectus delivery requirements of the Securities
Act; and the Company hereby consents to the use of such prospectus (including
such preliminary and summary prospectus) and any amendment or supplement thereto
by each such Electing Holder and by any such agent and underwriter, in each case
in the form most recently provided to such person by the Company, in connection
with the offering and sale of the Registrable Securities covered by the
prospectus (including such preliminary and summary prospectus) or any supplement
or amendment thereto;
Y. use its best efforts to (A) register or qualify the Registrable
Securities to be included in such Shelf Registration Statement under such
securities laws or blue sky laws of such jurisdictions as any Electing Holder
and each placement or sales agent, if any, therefor and underwriter, if any,
thereof shall reasonably request, (B) keep such registrations or qualifications
in effect and comply with such laws so as to permit the continuance of offers,
sales and dealings therein in such jurisdictions during the period
the Shelf Registration is required to remain effective under Section 2(b) above
and for so long as may be necessary to enable any such Electing Holder, agent or
underwriter to complete its distribution of Securities pursuant to such Shelf
Registration Statement and (C) take any and all other actions as may be
reasonably necessary or advisable to enable each such Electing Holder, agent, if
any, and underwriter, if any, to consummate the disposition in such
jurisdictions of such Registrable Securities; provided, however, that the
Company shall not be required for any such purpose to (1) qualify as a foreign
corporation in any jurisdiction wherein it would not otherwise be required to
qualify but for the requirements of this Section 3(d)(xii), (2) consent to
general service of process in any such jurisdiction or (3) make any changes to
its certificate of incorporation or by-laws or any agreement between it and its
stockholders;
Z. use its best efforts to obtain the consent or approval of each
governmental agency or authority, whether federal, state or local, which may be
required to effect the Shelf Registration or the offering or sale in connection
therewith or to enable the selling holder or holders to offer, or to consummate
the disposition of, their Registrable Securities;
AA. Unless any Registrable Securities shall be in book-entry only form,
cooperate with the Electing Holders and the managing underwriters, if any, to
facilitate the timely preparation and delivery of certificates representing
Registrable Securities to be sold, and which certificates shall not bear any
restrictive legends; and, in the case of an underwritten offering, enable such
Registrable Securities to be in such denominations and registered in such names
as the managing underwriters may request at least two business days prior to any
sale of the Registrable Securities;
BB. provide a CUSIP number for all Registrable Securities, not later than
the applicable Effective Time;
CC. enter into one or more underwriting agreements, engagement letters,
agency agreements, "best efforts" underwriting agreements or similar agreements,
as appropriate, including customary provisions relating to indemnification and
contribution, and take such other actions in connection therewith as the
Majority Holders shall request in order to expedite or facilitate the
disposition of such Registrable Securities;
DD. whether or not an agreement of the type referred to in Section
3(d)(xvi) hereof is entered into and whether or not any portion of the offering
contemplated by the Shelf Registration is an underwritten offering or is made
through a placement or sales agent or any other entity, (A) make such
representations and warranties to the Electing Holders and the placement or
sales agent, if any, therefor and the underwriters, if any, thereof in form,
substance and scope as are customarily made in connection with an offering of
debt securities pursuant to any appropriate agreement or to a registration
statement filed on the form applicable to the Shelf Registration; (B) obtain an
opinion of counsel to the Company in customary form and covering such matters,
of the type customarily covered by such an opinion, as the Majority Holders may
reasonably request, addressed to such Electing Holder or Electing Holders and
the placement or sales agent, if any, therefor and the underwriters, if any,
thereof and dated the effective date of such Shelf Registration Statement (and
if such Shelf Registration Statement contemplates an underwritten offering of a
part or all of the Registrable Securities, dated the date of the closing under
the underwriting agreement relating thereto) it being agreed that the matters
to be covered by such opinion shall include in form, substance and scope those
matters set forth in Section 7(b) of the Purchase Agreement; (C) obtain a "cold
comfort" letter or letters from the independent certified public accountants of
the Company addressed to the selling Electing Holders, the placement or sales
agent, if any, therefor or the underwriters, if any, thereof, dated (i) the
effective date of such Shelf Registration Statement and (ii) the effective date
of any prospectus supplement to the prospectus included in such Shelf
Registration Statement or post-effective amendment to such Shelf Registration
Statement which includes unaudited or audited financial statements as of a date
or for a period subsequent to that of the latest such statements included in
such prospectus (and, if such Shelf Registration Statement contemplates an
underwritten offering pursuant to any prospectus supplement to the prospectus
included in such Shelf Registration Statement or post-effective amendment to
such Shelf Registration Statement which includes unaudited or audited financial
statements as of a date or for a period subsequent to that of the latest such
statements included in such prospectus, dated the date of the closing under the
underwriting agreement relating thereto), such letter or letters to be in
customary form and covering such matters of the type customarily covered by
letters of such type; (D) deliver such documents and certificates, including
officers' certificates, as may be reasonably requested by the Majority Holders
to evidence the accuracy of the representations and warranties made pursuant to
clause (A) above or those contained in Section 5(a) hereof and the compliance
with or satisfaction of any agreements or conditions contained in the
underwriting agreement or other agreement entered into by the Company; and (E)
undertake such obligations relating to expense reimbursement, indemnification
and contribution as are provided in Section 6 hereof;
EE. notify in writing each holder of Registrable Securities of any
proposal by the Company to amend or waive any provision of this Agreement
pursuant to Section 9(h) hereof and of any amendment or waiver effected pursuant
thereto, each of which notices shall contain the text of the amendment or waiver
proposed or effected, as the case may be;
FF. in the event that any broker-dealer registered under the Exchange Act
shall underwrite any Registrable Securities or participate as a member of an
underwriting syndicate or selling group or "assist in the distribution" (within
the meaning of the Conduct Rules (the "Conduct Rules") of the National
Association of Securities Dealers, Inc. ("NASD") or any successor thereto, as
amended from time to time) thereof, whether as a holder of such Registrable
Securities or as an underwriter, a placement or sales agent or a broker or
dealer in respect thereof, or otherwise, assist such broker-dealer in complying
with the requirements of such Conduct Rules, including by (A) if such Conduct
Rules shall so require, engaging a "qualified independent underwriter" (as
defined in such Conduct Rules) to participate in the preparation of the Shelf
Registration Statement relating to such Registrable Securities, to exercise
usual standards of due diligence in respect thereto and, if any portion of the
offering contemplated by such Shelf Registration Statement is an underwritten
offering or is made through a placement or sales agent, to recommend the yield
of such Registrable Securities, (B) indemnifying any such qualified independent
underwriter to the extent of the indemnification of underwriters provided in
Section 6 hereof, and (C) providing such information to such broker-dealer as
may be required in order for such broker-dealer to comply with the requirements
of the Conduct Rules;
GG. comply with all applicable rules and regulations of the Commission,
and shall make generally available to its securityholders within eighteen months
after the effective date of such Shelf Registration Statement, an earning
statement (which need not be audited) of the Company and its subsidiaries
complying with Section 11(a) of the Securities Act (including, at the option of
the Company, Rule 158 thereunder); and
HH. if the Securities have been rated prior to the initial sale of the
Securities, use its best efforts to confirm that such ratings will apply to the
Registrable Securities covered by a Shelf Registration Statement, or (B) if the
Securities were not previously rated, use commercially reasonable efforts to
cause the Registrable Securities covered by the Shelf Registration Statement to
be rated with the appropriate rating agencies, if so requested by the Majority
Holders.
II. In the event that the Company would be required, pursuant to Section
3(d)(viii)(F) above, to notify the Electing Holders, the placement or sales
agent, if any, therefor and the managing underwriters, if any, thereof, the
Company shall without delay prepare and furnish to each of the Electing Holders,
to each placement or sales agent, if any, and to each such underwriter, if any,
a reasonable number of copies of a prospectus supplemented or amended so that,
as thereafter delivered to purchasers of Registrable Securities, such prospectus
shall conform in all material respects to the applicable requirements of the
Securities Act and the Trust Indenture Act and the rules and regulations of the
Commission thereunder and shall not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein not misleading in light of the circumstances then
existing. Each Electing Holder agrees that upon receipt of any notice from the
Company pursuant to Section 3(d)(viii)(F) hereof, such Electing Holder shall
forthwith discontinue the disposition of Registrable Securities pursuant to the
Shelf Registration Statement applicable to such Registrable Securities until
such Electing Holder shall have received copies of such amended or supplemented
prospectus, and if so directed by the Company, such Electing Holder shall
deliver to the Company (at the Company's expense) all copies, then in such
Electing Holder's possession of the prospectus covering such Registrable
Securities at the time of receipt of such notice.
JJ. In the event of a Shelf Registration, in addition to the information
required to be provided by each Electing Holder in its Notice and Questionnaire,
the Company may require such Electing Holder to furnish to the Company such
additional information regarding such Electing Holder and such Electing Holder's
intended method of distribution of Registrable Securities as may be required in
order to comply with the Securities Act. Each such Electing Holder agrees to
notify the Company as promptly as practicable of any inaccuracy or change in
information previously furnished by such Electing Holder to the Company or of
the occurrence of any event in either case as a result of which any prospectus
relating to such Shelf Registration contains or would contain an untrue
statement of a material fact regarding such Electing Holder or such Electing
Holder's intended method of disposition of such Registrable Securities or omits
to state any material fact regarding such Electing Holder or such Electing
Holder's intended method of disposition of such Registrable Securities required
to be stated therein or necessary to make the statements therein not misleading
in light of the circumstances then existing, and promptly to furnish to the
Company any additional information required to correct and update any previously
furnished information or required so that such prospectus shall not contain,
with respect to such Electing Holder or the disposition
of such Registrable Securities, an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances then existing.
KK. Until the expiration of two years after the Closing Date, the Company
will not, and will not permit any of its "affiliates" (as defined in Rule 144)
to, resell any of the Securities that have been reacquired by any of them except
pursuant to an effective registration statement under the Securities Act.
3. Registration Expenses.
The Company agrees to bear and to pay or cause to be paid promptly all
expenses incident to the Company's performance of or compliance with this
Agreement, including (a) all Commission and any NASD registration, filing and
review fees and expenses including fees and disbursements of counsel for the
Majority Holders in connection with such registration, filing and review, (b)
all fees and expenses in connection with the qualification of the Securities for
offering and sale under the State securities and blue sky laws referred to in
Section 3(d)(xii) hereof and determination of their eligibility for investment
under the laws of such jurisdictions as the Majority Holders may designate,
including any fees and disbursements of the above designated counsel referred to
in subclause (a) above in connection with such qualification and determination,
(c) all expenses relating to the preparation, printing, production, distribution
and reproduction of each registration statement required to be filed hereunder,
each prospectus included therein or prepared for distribution pursuant hereto,
each amendment or supplement to the foregoing, the expenses of preparing the
Securities for delivery and the expenses of printing or producing any
underwriting agreements, agreements among underwriters, selling agreements and
blue sky or legal investment memoranda and all other documents in connection
with the offering, sale or delivery of Securities to be disposed of (including
certificates representing the Securities), (d) messenger, telephone and delivery
expenses relating to the offering, sale or delivery of Securities and the
preparation of documents referred to in clause (c) above, (e) fees and expenses
of the Trustee under the Indentures, any agent of the Trustee and the counsel
for the Trustee and of any collateral agent or custodian, (f) internal expenses
(including all salaries and expenses of the Company's officers and employees
performing legal or accounting duties), (g) fees, disbursements and expenses of
counsel and independent certified public accountants of the Company (including
the expenses of any opinions or "cold comfort" letters required by or incident
to such performance and compliance), (h) fees, disbursements and expenses of any
"qualified independent underwriter" engaged pursuant to Section 3(d)(xix)
hereof, (i) fees, disbursements and expenses of one counsel for the Electing
Holders retained in connection with a Shelf Registration, as selected by the
Majority Holders (which counsel shall be reasonably satisfactory to the
Company), (j) any fees charged by securities rating services for rating the
Securities, and (k) fees, expenses and disbursements of any other persons,
including special experts, retained by the Company in connection with such
registration (collectively, the "Registration Expenses"). To the extent that any
Registration Expenses are incurred, assumed or paid by any holder of Registrable
Securities or any placement or sales agent therefor or underwriter thereof, the
Company shall reimburse such person for the full amount of the Registration
Expenses so incurred, assumed or paid promptly after receipt of a request
therefor. Notwithstanding the foregoing, the holders of the Registrable
Securities being registered shall pay all agency fees and commissions and
underwriting discounts and commissions attributable to the
sale of such Registrable Securities and the fees and disbursements of any
counsel or other advisors or experts retained by such holders (severally or
jointly), other than the counsel and experts specifically referred to above.
4. Representations and Warranties.
The Company represents and warrants to, and agrees with, each Purchaser and
each of the holders from time to time of Registrable Securities that:
A. Each registration statement covering Registrable Securities and
each prospectus (including any preliminary or summary prospectus) contained
therein or furnished pursuant to Section 3(d) or Section 3(c) hereof and
any further amendments or supplements to any such registration statement or
prospectus, when it becomes effective or is filed with the Commission, as
the case may be, and, in the case of an underwritten offering of
Registrable Securities, at the time of the closing under the underwriting
agreement relating thereto, will conform in all material respects to the
requirements of the Securities Act and the Trust Indenture Act and the
rules and regulations of the Commission thereunder and will not contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading; and at all times subsequent to the Effective Time when a
prospectus would be required to be delivered under the Securities Act,
other than from (i) such time as a notice has been given to holders of
Registrable Securities pursuant to Section 3(d)(viii)(F) or Section
3(c)(iii)(F) hereof until (ii) such time as the Company furnishes an
amended or supplemented prospectus pursuant to Section 3(e) or Section
3(c)(iv) hereof, each such registration statement, and each prospectus
(including any summary prospectus) contained therein or furnished pursuant
to Section 3(d) or Section 3(c) hereof, as then amended or supplemented,
will conform in all material respects to the requirements of the Securities
Act and the Trust Indenture Act and the rules and regulations of the
Commission thereunder and will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading in the
light of the circumstances then existing; provided, however, that this
representation and warranty shall not apply to any statements or omissions
made in reliance upon and in conformity with information furnished in
writing to the Company by a holder of Registrable Securities expressly for
use therein.
B. Any documents incorporated by reference in any prospectus
referred to in Section 5(a) hereof, when they become or became effective or
are or were filed with the Commission, as the case may be, will conform or
conformed in all material respects to the requirements of the Securities
Act or the Exchange Act, as applicable, and none of such documents will
contain or contained an untrue statement of a material fact or will omit or
omitted to state a material fact required to be stated therein or necessary
to make the statements therein not misleading; provided, however, that this
representation and warranty shall not apply to any statements or omissions
made in reliance upon and in conformity with information furnished in
writing to the Company by a holder of Registrable Securities expressly for
use therein.
C. The compliance by the Company with all of the provisions of this
Agreement and the consummation of the transactions herein contemplated will
not conflict with or result in a breach of any of the terms or provisions
of, or constitute a default under, any Indentures, mortgage, deed of trust,
loan agreement or other agreement or instrument to which the Company or any
subsidiary of the Company is a party or by which the Company or any
subsidiary of the Company is bound or to which any of the property or
assets of the Company or any subsidiary of the Company is subject, nor will
such action result in any violation of the provisions of the certificate of
incorporation, as amended, or the by-laws of the Company or any statute or
any order, rule or regulation of any court or governmental agency or body
having jurisdiction over the Company or any subsidiary of the Company or
any of their properties; and no consent, approval, authorization, order,
registration or qualification of or with any such court or governmental
agency or body is required for the consummation by the Company of the
transactions contemplated by this Agreement, except the registration under
the Securities Act of the Securities, qualification of the Indentures under
the Trust Indenture Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under State securities
or blue sky laws in connection with the offering and distribution of the
Securities.
D. This Agreement has been duly authorized, executed and delivered
by the Company.
5. Indemnification.
A. Indemnification by the Company. The Company will indemnify and hold
harmless each of the holders of Registrable Securities included in an Exchange
Registration Statement, each of the Electing Holders of Registrable Securities
included in a Shelf Registration Statement and each person who participates as a
placement or sales agent or as an underwriter in any offering or sale of such
Registrable Securities against any losses, claims, damages or liabilities, joint
or several, to which such holder, agent or underwriter may become subject under
the Securities Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in any
Exchange Registration Statement or Shelf Registration Statement, as the case may
be, under which such Registrable Securities were registered under the Securities
Act, or any preliminary, final or summary prospectus contained therein or
furnished by the Company to any such holder, Electing Holder or underwriter, or
any amendment or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
will reimburse such holder, such Electing Holder, such agent and such
underwriter for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such action or claim as such
expenses are incurred; provided, however, that the Company shall not be liable
to any such person in any such case to the extent that any such loss, claim,
damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in such
registration statement, or preliminary, final or summary prospectus, or
amendment or supplement thereto, in reliance upon and in conformity with written
information furnished to the Company by such person expressly for use therein.
B. Indemnification by the Holders and any Agents and Underwriters. The
Electing Holders of such Registrable Securities included in any registration
statement filed pursuant to Section 2(b) and 2(a) hereof and each person who
participates as an underwriter in any offering of such Registrable Securities,
severally and not jointly, agrees to (i) indemnify and hold harmless the Company
and all other holders of Registrable Securities, against any losses, claims,
damages or liabilities to which the Company or such other holders of Registrable
Securities may become subject, under the Securities Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon an untrue statement or alleged untrue statement
of a material fact contained in such registration statement, or any preliminary,
final or summary prospectus contained therein or furnished by the Company to any
such Electing Holder, agent or underwriter, or any amendment or supplement
thereto, or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, in each case to the extent, but only to
the extent, that such untrue statement or alleged untrue statement or omission
or alleged omission was made in reliance upon and in conformity with written
information furnished to the Company by such Electing Holder, or underwriter
expressly for use therein, and (ii) reimburse the Company for any legal or other
expenses reasonably incurred by the Company in connection with investigating or
defending any such action or claim as such expenses are incurred; provided,
however, that no such Electing Holder or underwriter shall be required to
undertake liability to any person under this Section 6(b) for any amounts in
excess of the dollar amount of the proceeds to be received by such Electing
Holder from the sale of such Electing Holder's Registrable Securities pursuant
to such registration.
C. Notices of Claims, Etc. Promptly after receipt by an indemnified party
under Section 6 (a) or (b) hereof of written notice of the commencement of any
action, such indemnified party shall, if a claim in respect thereof is to be
made against an indemnifying party pursuant to the indemnification provisions of
or contemplated by this Section 6, notify such indemnifying party in writing of
the commencement of such action; but the failure to so notify the indemnifying
party will not relieve the indemnifying party from liability under Section 6 (a)
or (b) hereof unless and to the extent it did not otherwise learn of such action
and such failure results in the forfeiture by the indemnifying party of
substantial rights and defenses. In case any such action shall be brought
against any indemnified party and it shall notify an indemnifying party of the
commencement thereof, such indemnifying party shall be entitled to participate
therein and, to the extent that it shall wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel reasonably satisfactory to such indemnified party (who shall not, except
with the consent of the indemnified party, be counsel to the indemnifying
party), and, after notice from the indemnifying party to such indemnified party
of its election so to assume the defense thereof, such indemnifying party shall
not be liable to such indemnified party for any legal expenses of other counsel
or any other expenses, in each case subsequently incurred by such indemnified
party, in connection with the defense thereof other than reasonable costs of
investigation. No indemnifying party shall, without the written consent of the
indemnified party, effect the settlement or compromise of, or consent to the
entry of any judgment with respect to, any pending or threatened action or claim
in respect of which indemnification or contribution may be sought hereunder
(whether or not the indemnified party is an actual or potential party to such
action or claim) unless such settlement, compromise or judgment (i) includes an
unconditional release of the indemnified party from all liability arising out
of such action or claim and (ii) does not include a statement as to or an
admission of fault, culpability or a failure to act by or on behalf of any
indemnified party.
D. Contribution. If for any reason the indemnification provisions
contemplated by Section 6(a) or Section 6(b) hereof are unavailable to or
insufficient to hold harmless an indemnified party in respect of any losses,
claims, damages or liabilities (or actions in respect thereof) referred to
therein, then each indemnifying party shall contribute to the amount paid or
payable to such indemnified party as a result of such losses, claims, damages or
liabilities (or actions in respect thereof) in such proportion as is appropriate
to reflect the relative fault of the indemnifying party and the indemnified
party in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities (or actions in respect thereof), as well
as any other relevant equitable considerations. The relative fault of such
indemnifying party and indemnified party shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact or omission or alleged omission to state a material fact relates to
information supplied by such indemnifying party or by such indemnified party,
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The parties hereto
agree that it would not be just and equitable if contributions pursuant to this
Section 6(d) were determined by pro rata allocation (even if the holders or any
agents or underwriters or all of them were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to in this Section 6(d). The amount paid or
payable by an indemnified party as a result of the losses, claims, damages, or
liabilities (or actions in respect thereof) referred to above shall be deemed to
include any legal or other fees or expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action
or claim. Notwithstanding the provisions of this Section 6(d), no holder shall
be required to contribute any amount in excess of the amount by which the dollar
amount of the proceeds received by such holder from the sale of any Registrable
Securities (after deducting any fees, discounts and commissions applicable
thereto) exceeds the amount of any damages which such holder has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission, and no underwriter shall be required to contribute any
amount in excess of the amount by which the total price at which the Registrable
Securities underwritten by it and distributed to the public were offered to the
public exceeds the amount of any damages which such underwriter has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
The holders' and any underwriters' obligations in this Section 6(d) to
contribute shall be several in proportion to the principal amount of Registrable
Securities registered or underwritten, as the case may be, by them and not
joint.
E. The obligations of the Company under this Section 6 shall be in
addition to any liability which the Company may otherwise have and shall extend,
upon the same terms and conditions, to each officer, director and partner of
each holder, agent and underwriter and each person, if any, who controls any
holder, agent or underwriter within the meaning of the Securities Act; and the
obligations of the holders and any agents or underwriters contemplated by this
Section 6 shall be in addition to any liability which the
respective holder, agent or underwriter may otherwise have and shall extend,
upon the same terms and conditions, to each officer and director of the Company
and to each person, if any, who controls the Company within the meaning of the
Securities Act.
6. Underwritten Offerings.
A. Selection of Underwriters. If any of the Registrable Securities covered
by the Shelf Registration are to be sold pursuant to an underwritten offering,
the managing underwriter or underwriters thereof shall be designated by the
Majority Holders of the Registrable Securities to be included in such offering,
provided that such designated managing underwriter or underwriters is or are
reasonably acceptable to the Company.
B. Participation by Holders. Each holder of Registrable Securities hereby
agrees with each other such holder that no such holder may participate in any
underwritten offering hereunder unless such holder (i) agrees to sell such
holder's Registrable Securities on the basis provided in any underwriting
arrangements approved by the persons entitled hereunder to approve such
arrangements and (ii) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents reasonably
required under the terms of such underwriting arrangements.
7. Rule 144.
The Company covenants to the holders of Registrable Securities that to the
extent it shall be required to do so under the Exchange Act, the Company shall
timely file the reports required to be filed by it under the Exchange Act or the
Securities Act (including the reports under Sections 13 and 15(d) of the
Exchange Act referred to in subparagraph (c)(1) of Rule 144 adopted by the
Commission under the Securities Act) and the rules and regulations adopted by
the Commission thereunder, and shall take such further action as any holder of
Registrable Securities may reasonably request, all to the extent required from
time to time to enable such holder to sell Registrable Securities without
registration under the Securities Act within the limitations of the exemption
provided by Rule 144 under the Securities Act, as such Rule may be amended from
time to time, or any similar or successor rule or regulation hereafter adopted
by the Commission. Upon the request of any holder of Registrable Securities in
connection with that holder's sale pursuant to Rule 144, the Company shall
deliver to such holder a written statement as to whether it has complied with
such requirements.
8. Miscellaneous.
A. No Inconsistent Agreements. The Company represents, warrants,
covenants and agrees that it has not granted, and shall not grant, registration
rights with respect to Registrable Securities or any other securities which
would be inconsistent with the terms contained in this Agreement.
B. Specific Performance. The parties hereto acknowledge that there would
be no adequate remedy at law if the Company fails to perform any of its
obligations hereunder and that the Purchasers and the holders from time to time
of the Registrable Securities may be irreparably harmed by any such failure, and
accordingly agree that the Purchasers and such holders, in addition to any other
remedy to which they may be entitled at law or in equity, shall be entitled to
compel specific performance of the obligations of the
Company under this Agreement in accordance with the terms and conditions of this
Agreement, in any court of the United States or any State thereof having
jurisdiction.
C. Notices. All notices, requests, claims, demands, waivers and other
communications hereunder shall be in writing and shall be deemed to have been
duly given when received as follows: if to (i) the Company, to it at 510 Bering
Drive, Suite 500, Houston, Texas 77057; (ii) a holder, to it at the address of
such holder set forth in the security register or other records of the Company;
or (iii) to such other address as the Company or any such holder may have
furnished to the other in writing in accordance herewith; provided, that notices
of change of address shall be effective only upon receipt.
D. Parties in Interest. All the terms and provisions of this Agreement
shall be binding upon, shall inure to the benefit of and shall be enforceable by
the parties hereto and the holders from time to time of the Registrable
Securities and the respective successors and assigns of the parties hereto and
such holders. In the event that any transferee of any holder of Registrable
Securities shall acquire Registrable Securities, in any manner, whether by gift,
bequest, purchase, operation of law or otherwise, such transferee shall, without
any further writing or action of any kind, be deemed a beneficiary hereof for
all purposes and such Registrable Securities shall be held subject to all of the
terms of this Agreement, and by taking and holding such Registrable Securities
such transferee shall be entitled to receive the benefits of, and be
conclusively deemed to have agreed to be bound by all of the applicable terms
and provisions of this Agreement. If the Company shall so request, any such
successor, assign or transferee shall agree in writing to acquire and hold the
Registrable Securities subject to all of the applicable terms hereof.
E. Survival. The respective indemnities, agreements, representations,
warranties and each other provision set forth in this Agreement or made pursuant
hereto shall remain in full force and effect regardless of any investigation (or
statement as to the results thereof) made by or on behalf of any holder of
Registrable Securities, any director, officer or partner of such holder, any
agent or underwriter or any director, officer or partner thereof, or any
controlling person of any of the foregoing, and shall survive delivery of and
payment for the Registrable Securities pursuant to the Purchase Agreement and
the transfer and registration of Registrable Securities by such holder and the
consummation of an Exchange Offer.
F. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
G. Headings. The descriptive headings of the several Sections and
paragraphs of this Agreement are inserted for convenience only, do not
constitute a part of this Agreement and shall not affect in any way the meaning
or interpretation of this Agreement.
H. Entire Agreement; Amendments. This Agreement and the other writings
referred to herein (including the Indentures and the form of Securities) or
delivered pursuant hereto which form a part hereof contain the entire
understanding of the parties with respect to its subject matter. This Agreement
supersedes all prior agreements and understandings between the parties with
respect to its subject matter. This Agreement may be amended and the observance
of any term of this Agreement may be waived
(either generally or in a particular instance and either retroactively or
prospectively) only by a written instrument duly executed by the Company and the
Majority Holders of the Registrable Securities at the time outstanding. Each
holder of any Registrable Securities at the time or thereafter outstanding shall
be bound by any amendment or waiver effected pursuant to this Section 9(g),
whether or not any notice, writing or marking indicating such amendment or
waiver appears on such Registrable Securities or is delivered to such holder.
I. Inspection. For so long as this Agreement shall be in effect, this
Agreement and a complete list of the names and addresses of all the holders of
Registrable Securities shall be made available for inspection and copying on any
business day by any holder of Registrable Securities for proper purposes only
(which shall include any purpose related to the rights of the holders of
Registrable Securities under the Securities, the Indentures and this Agreement)
at the offices of the Company at the address thereof set forth in Section 9(b)
above and at the office of the Trustee under the Indentures.
J. Counterparts. This agreement may be executed by the parties in
counterparts, each of which shall be deemed to be an original, but all such
respective counterparts shall together constitute one and the same instrument.
If the foregoing is in accordance with your understanding, please sign and
return to us ten counterparts hereof, and upon the acceptance hereof by you, on
behalf of each of the Purchasers, this letter and such acceptance hereof shall
constitute a binding agreement between each of the Purchasers and the Company.
It is understood that your acceptance of this letter on behalf of each of the
Purchasers is pursuant to the authority set forth in a form of Agreement among
Purchasers, the form of which shall be submitted to the Company for examination
upon request, but without warranty on your part as to the authority of the
signers thereof.
Very truly yours,
Crown Castle International Corp.
By: /s/ E. Blake Hawk
____________________________________
Name: E. Blake Hawk
Title: Executive Vice President
Accepted as of the date hereof:
Goldman, Sachs & Co.
Salomon Smith Barney, Inc.
Lehman Brothers Inc.
Credit Suisse First Boston Corporation
By: /s/ Goldman, Sachs & Co.
_______________________________________
(Goldman, Sachs & Co.)
EXHIBIT A
Crown Castle International Corp.
INSTRUCTION TO DTC PARTICIPANTS
-------------------------------
(Date of Mailing)
URGENT - IMMEDIATE ATTENTION REQUESTED
DEADLINE FOR RESPONSE: ________*
---------------------
The Depository Trust Company ("DTC") has identified you as a DTC Participant
through which beneficial interests in the Crown Castle International Corp. (the
"Company") 9-1/2% Senior Notes due 2011 (the "Senior Notes") and 11-1/4% Senior
Discount Notes due 2011 (the "Senior Discount Notes," and, together with the
Senior Notes, the "Securities") are held.
The Company is in the process of registering the Securities under the Securities
Act of 1933 for resale by the beneficial owners thereof. In order to have their
Securities included in the registration statement, beneficial owners must
complete and return the enclosed Notice of Registration Statement and Selling
Securityholder Questionnaire.
It is important that beneficial owners of the Securities receive a copy of the
- ------------------------------------------------------------------------------
enclosed materials as soon as possible as their rights to have the Securities
- --------------------------------------
included in the registration statement depend upon their returning the Notice
and Questionnaire by _______. Please forward a copy of the enclosed documents
to each beneficial owner that holds interests in the Securities through you. If
you require more copies of the enclosed materials or have any questions
pertaining to this matter, please contact the General Counsel of Crown Castle
International Corp., 510 Bering Drive, Suite 500, Houston, Texas 77057,
telephone: (713) 570-3000.
_______________________________
* Not less than 20 days from date of mailing.
A-1
Crown Castle International Corp.
Notice of Registration Statement
and
Selling Securityholder Questionnaire
------------------------------------
(Date)
Reference is hereby made to the Agreement (the "Exchange and Registration Rights
Agreement") between Crown Castle International Corp. (the "Company") and the
Purchasers named therein. Pursuant to the Exchange and Registration Rights
Agreement, the Company has filed with the United States Securities and Exchange
Commission (the "Commission") a registration statement on Form __ (the "Shelf
Registration Statement") for the registration and resale under Rule 415 of the
Securities Act of 1933, as amended (the "Securities Act"), of the Company's 9-
1/2% Senior Notes due 2011 (the "Senior Notes") and 11-1/4% Senior Discount
Notes due 2011 (the "Senior Discount Notes" and, together with the Senior Notes,
the "Securities"). A copy of the Exchange and Registration Rights Agreement is
attached hereto. All capitalized terms not otherwise defined herein shall have
the meanings ascribed thereto in the Exchange and Registration Rights Agreement.
Each beneficial owner of Registrable Securities is entitled to have the
Registrable Securities beneficially owned by it included in the Shelf
Registration Statement. In order to have Registrable Securities included in the
Shelf Registration Statement, this Notice of Registration Statement and Selling
Securityholder Questionnaire ("Notice and Questionnaire") must be completed,
executed and delivered to the Company's counsel at the address set forth herein
for receipt ON OR BEFORE _________. Beneficial owners of Registrable Securities
who do not complete, execute and return this Notice and Questionnaire by such
date (i) will not be named as selling securityholders in the Shelf Registration
Statement and (ii) may not use the Prospectus forming a part thereof for resales
of Registrable Securities.
Certain legal consequences arise from being named as a selling securityholder in
the Shelf Registration Statement and related Prospectus. Accordingly, holders
and beneficial owners of Registrable Securities are advised to consult their own
securities law counsel regarding the consequences of being named or not being
named as a selling securityholder in the Shelf Registration Statement and
related Prospectus.
A-2
ELECTION
The undersigned holder (the "Selling Securityholder") of Registrable Securities
hereby elects to include in the Shelf Registration Statement the Registrable
Securities beneficially owned by it and listed below in Item (3). The
undersigned, by signing and returning this Notice and Questionnaire, agrees to
be bound with respect to such Registrable Securities by the terms and conditions
of this Notice and Questionnaire and the Exchange and Registration Rights
Agreement, including, without limitation, Section 6 of the Exchange and
Registration Rights Agreement, as if the undersigned Selling Securityholder were
an original party thereto.
Upon any sale of Registrable Securities pursuant to the Shelf Registration
Statement, the Selling Securityholder will be required to deliver to the Company
and Trustee the Notice of Transfer set forth in Appendix A to the Prospectus and
as Exhibit B to the Exchange and Registration Rights Agreement.
The Selling Securityholder hereby provides the following information to the
Company and represents and warrants that such information is accurate and
complete:
A-3
NOTICE AND QUESTIONNAIRE
(1)
(a) Full Legal Name of Selling Securityholder:
(b) Full Legal Name of Registered Holder (if not the same as in (a) above)
of Registrable Securities Listed in Item (3) below are held:
(c) Full Legal Name of DTC Participant (if applicable and if not the same
as (b) above) Through Which Registrable Securities Listed in Item (3)
below are Held:
(2) Address for Notices to Selling Securityholder:
Telephone: ____________
Fax: ____________
Contact Person: ____________
(3) Beneficial Ownership of Registrable Securities:
Except as set forth below in this Item (3), the undersigned does not
beneficially own any Securities.
(a) Principal amount of Registrable Securities beneficially owned:
CUSIP No(s). of such Registrable Securities:
(b) Principal amount of Securities of the Company other than Registrable
Securities beneficially owned:
CUSIP No(s). of such other Securities:
(c) Principal amount of Registrable Securities which the undersigned
wishes to be included in the Shelf Registration Statement:
CUSIP No(s). of such Registrable Securities to be included in the
Shelf Registration Statement:
(4) Beneficial Ownership of Other Securities of the Company:
Except as set forth below in this Item (4), the undersigned Selling
Securityholder is not the beneficial or registered owner of any other securities
of the Company, other than the Securities listed above in Item (3).
State any exceptions here:
(5) Relationships with the Company:
A-4
Except as set forth below, neither the Selling Securityholder nor any of
its affiliates, officers, directors or principal equity holders (5% or more) has
held any position or office or has had any other material relationship with the
Company (or its predecessors or affiliates) during the past three years.
State any exceptions here:
________________________________________________________________________________
________________________________________________________________________________
(6) Plan of Distribution:
Except as set forth below, the undersigned Selling Securityholder intends
to distribute the Registrable Securities listed above in Item (3) only as
follows (if at all): Such Registrable Securities may be sold from time to time
directly by the undersigned Selling Securityholder or, alternatively, through
underwriters, broker-dealers or agents. If the Registrable Securities are sold
through underwriters or broker-dealers, the Selling Securityholder will be
responsible for underwriting discounts or commissions or agents' commissions.
Such Registrable Securities may be sold in one or more transactions at fixed
prices, at prevailing market prices at the time of sale, at varying prices
determined at the time of sale, or at negotiated prices. Such sales may be
effected in transactions (which may involve crosses or block transactions) (i)
on any national securities exchange or quotation service on which the Registered
Securities may be listed or quoted at the time of sale, (ii) in the over-the-
counter market, (iii) in transactions otherwise than on such exchanges or
services or in the over-the-counter market, or (iv) through the writing of
options. In connection with sales of the Registrable Securities or otherwise,
the Selling Securityholder may enter into hedging transactions with broker-
dealers, which may in turn engage in short sales of the Registrable Securities
in the course of hedging the positions they assume. The Selling Securityholder
may also sell Registrable Securities short and deliver Registrable Securities to
close out such short positions, or loan or pledge Registrable Securities to
broker-dealers that in turn may sell such securities.
State any exceptions here:___________________________________________________
________________________________________________________________________
By signing below, the Selling Securityholder acknowledges that it understands
its obligation to comply, and agrees that it will comply, with the provisions of
the Exchange Act and the rules and regulations thereunder, particularly
Regulation M.
In the event that the Selling Securityholder transfers all or any portion of the
Registrable Securities listed in Item (3) above after the date on which such
information is provided to the Company, the Selling Securityholder agrees to
notify the transferee(s) at the time of the transfer of its rights and
obligations under this Notice and Questionnaire and the Exchange and
Registration Rights Agreement.
By signing below, the Selling Securityholder consents to the disclosure of the
information contained herein in its answers to Items (1) through (6) above and
the inclusion of such information in the Shelf Registration Statement and
related Prospectus. The Selling Securityholder understands that such information
will be relied upon by the Company in connection with the preparation of the
Shelf Registration Statement and related Prospectus.
In accordance with the Selling Securityholder's obligation under Section 3(d) of
the Exchange and Registration Rights Agreement to provide such information as
may be required by law for inclusion in the Shelf Registration Statement, the
Selling Securityholder
A-5
agrees to promptly notify the Company of any inaccuracies or changes in the
information provided herein which may occur subsequent to the date hereof at any
time while the Shelf Registration Statement remains in effect. All notices
hereunder and pursuant to the Exchange and Registration Rights Agreement shall
be made in writing, by hand-delivery, first-class mail, or air courier
guaranteeing overnight delivery as follows:
(i) To the Company: Crown Castle International Corp.
510 Bering Drive, Suite 500
Houston, Texas 77057
Attention: General Counsel
(ii) With a copy to: Cravath, Swaine & Moore
Worldwide Plaza
825 Eighth Avenue
New York, New York 10019
Attention: Stephen L. Burns, Esq.
Once this Notice and Questionnaire is executed by the Selling Securityholder and
received by the Company's counsel, the terms of this Notice and Questionnaire,
and the representations and warranties contained herein, shall be binding on,
shall inure to the benefit of and shall be enforceable by the respective
successors, heirs, personal representatives, and assigns of the Company and the
Selling Securityholder (with respect to the Registrable Securities beneficially
owned by such Selling Securityholder and listed in Item (3) above). This
Agreement shall be governed in all respects by the laws of the State of New
York.
IN WITNESS WHEREOF, the undersigned, by authority duly given, has caused this
Notice and Questionnaire to be executed and delivered either in person or by its
duly authorized agent.
Dated: _____________________
Selling Securityholder
(Print/type full legal name of beneficial owner of Registrable
Securities)
By:_____________________________
Name:
Title:
PLEASE RETURN THE COMPLETED AND EXECUTED NOTICE AND QUESTIONNAIRE FOR RECEIPT ON
OR BEFORE ______ TO THE COMPANY'S COUNSEL AT:
Crown Castle International Corp.
510 Bering Drive, Suite 500
Houston, Texas 77057
Attention: General Counsel
A-6
Exhibit B
NOTICE OF TRANSFER PURSUANT TO REGISTRATION STATEMENT
U.S. Trust Company of New York
Crown Castle International Corp.
c/o U.S. Trust Company of New York
114 West 47th Street
25th Floor
New York, New York 10036
Attention: Trust Officer
Re: Crown Castle International Corp. (the "Company")
9-1/2% Senior Notes due 2011 (the "Senior Notes")
11-1/4% Senior Discount Notes due 2011 (the "Senior Discount Notes")
Dear Sirs:
Please be advised that __________ has transferred $_______ aggregate principal
amount of the above referenced Senior Notes and/or $_______ aggregate principal
amount at maturity of the above-referenced Notes pursuant to an effective
Registration Statement on Form ________ (File No. 333-________) filed by the
Company.
We hereby certify that the prospectus delivery requirements, if any, of the
Securities Act of 1933, as amended, have been satisfied and that the above-named
beneficial owner of the Senior Notes and/or the Senior Discount Notes is named
as a "Selling Securityholder" in the Prospectus dated ________ or in supplements
thereto, and that the aggregate principal amount at maturity of the Senior Notes
and/or the Senior Discount Notes transferred are the Notes and/or the Senior
Discount Notes listed in such Prospectus opposite such owner's name.
Dated:
Very truly yours,
(Name)
By:
-----------------------
(Authorized Signature)
B-1
EXHIBIT 4.12
================================================================================
EXECUTION COPY
CROWN CASTLE INTERNATIONAL CORP.
ISSUER
$330,000,000
9% SENIOR NOTES DUE 2011
------------------------
INDENTURE
Dated as of May 17, 1999
------------------------
United States Trust Company of New York
Trustee
------------------------
================================================================================
CROSS-REFERENCE TABLE*
Trust Indenture
Act Section Indenture Section
310 (a)(1)............................................................. 7.10
(a)(2)............................................................. 7.10
(a)(3)............................................................. N.A.
(a)(4)............................................................. N.A.
(a)(5)............................................................. 7.10
(b)................................................................ 7.10
(c)................................................................ N.A.
311 (a)................................................................ 7.11
(b)................................................................ 7.11
(c)................................................................ N.A.
312 (a)................................................................ 2.05
(b)................................................................ 11.03
(c)................................................................ 11.03
313 (a)................................................................ 7.06
(b)(1)............................................................. N.A.
(b)(2)............................................................. 7.07
(c)................................................................ 7.06;11.02
(d)................................................................ 7.06
314 (a)................................................................ 4.03;11.02
(b)................................................................ N.A.
(c)(1)............................................................. 11.04
(c)(2)............................................................. 11.04
(c)(3)............................................................. N.A.
(d)................................................................ N.A.
(e)................................................................ 11.05
(f)................................................................ N.A.
315 (a)................................................................ 7.01
(b)................................................................ 7.05;11.02
(c)................................................................ 7.01
(d)................................................................ 7.01
(e)................................................................ 6.11
316 (a) (last sentence)................................................ 2.09
(a)(1)(A).......................................................... 6.05
(a)(1)(B).......................................................... 6.04
(a)(2)............................................................. N.A.
(b)................................................................ 6.07
(c)................................................................ 2.12
317 (a)(1)............................................................. 6.08
(a)(2)............................................................. 6.09
(b)................................................................ 2.04
318 (a)................................................................ 11.01
(b)................................................................ N.A.
(c)................................................................ 11.01
N.A. means not applicable.
* This Cross Reference Table is not part of the Indenture.
TABLE OF CONTENTS
Page
ARTICLE 1 DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01. Definitions........................................................................................1
Section 1.02. Other Definitions..................................................................................20
Section 1.03. Incorporation by Reference of Trust Indenture Act..................................................20
Section 1.04. Rules of Construction..............................................................................20
ARTICLE 2 THE NOTES
Section 2.01. Form and Dating....................................................................................21
Section 2.02. Execution and Authentication.......................................................................22
Section 2.03. Registrar and Paying Agent.........................................................................22
Section 2.04. Paying Agent to Hold Money in Trust................................................................22
Section 2.05. Holder Lists.......................................................................................23
Section 2.06. Transfer and Exchange..............................................................................23
Section 2.07. Replacement Notes..................................................................................26
Section 2.08. Outstanding Notes..................................................................................26
Section 2.09. Treasury Notes.....................................................................................27
Section 2.10. Temporary Notes....................................................................................27
Section 2.11. Cancellation.......................................................................................27
Section 2.12. Defaulted Interest.................................................................................27
ARTICLE 3 REDEMPTION AND PREPAYMENT
Section 3.01. Notices to Trustee.................................................................................28
Section 3.02. Selection of Notes to Be Redeemed..................................................................28
Section 3.03. Notice of Redemption...............................................................................28
Section 3.04. Effect of Notice of Redemption.....................................................................29
Section 3.05. Deposit of Redemption Price........................................................................29
Section 3.06. Notes Redeemed in Part.............................................................................30
Section 3.07. Optional Redemption................................................................................30
Section 3.08. Mandatory Redemption...............................................................................30
Section 3.09. Offer to Purchase by Application of Excess Proceeds................................................31
ARTICLE 4 COVENANTS
Section 4.01. Payment of Notes...................................................................................32
Section 4.02. Maintenance of Office or Agency....................................................................33
Section 4.03. Reports............................................................................................33
Section 4.04. Compliance Certificate.............................................................................34
Section 4.05. Taxes..............................................................................................34
Section 4.06. Stay, Extension and Usury Laws.....................................................................35
Section 4.07. Restricted Payments................................................................................35
Section 4.08. Dividend and Other Payment Restrictions Affecting Subsidiaries.....................................38
Section 4.09. Incurrence of Indebtedness and Issuance of Preferred Stock.........................................40
Section 4.10. Asset Sales........................................................................................43
Section 4.11. Transactions with Affiliates......................................................................44
Section 4.12. Liens..............................................................................................45
Section 4.13. Business Activities................................................................................45
i
Section 4.14. Corporate Existence................................................................................45
Section 4.15. Offer to Repurchase Upon Change of Control.........................................................46
Section 4.16. Sale and Leaseback Transactions....................................................................47
Section 4.17. Limitation on Issuances and Sales of Capital Stock of Restricted Subsidiaries......................48
Section 4.18. Limitation on Issuances of Guarantees of Indebtedness..............................................48
ARTICLE 5 SUCCESSORS
Section 5.01. Merger, Consolidation, or Sale of Assets...........................................................49
Section 5.02. Successor Corporation Substituted..................................................................50
ARTICLE 6 DEFAULTS AND REMEDIES
Section 6.01. Events of Default..................................................................................50
Section 6.02. Acceleration.......................................................................................51
Section 6.03. Other Remedies.....................................................................................52
Section 6.04. Waiver of Past Defaults............................................................................52
Section 6.05. Control by Majority................................................................................52
Section 6.06. Limitation on Suits................................................................................52
Section 6.07. Rights of Holders of Notes to Receive Payment......................................................53
Section 6.08. Collection Suit by Trustee.........................................................................53
Section 6.09. Trustee May File Proofs of Claim...................................................................53
Section 6.10. Priorities.........................................................................................54
Section 6.11. Undertaking for Costs..............................................................................54
ARTICLE 7 TRUSTEE
Section 7.01. Duties of Trustee..................................................................................54
Section 7.02. Rights of Trustee..................................................................................55
Section 7.03. Individual Rights of Trustee.......................................................................56
Section 7.04. Trustee's Disclaimer...............................................................................56
Section 7.05. Notice of Defaults.................................................................................56
Section 7.06. Reports by Trustee to Holders of the Notes.........................................................56
Section 7.07. Compensation and Indemnity.........................................................................57
Section 7.08. Replacement of Trustee.............................................................................57
Section 7.09. Successor Trustee by Merger, etc...................................................................58
Section 7.10. Eligibility; Disqualification......................................................................58
Section 7.11. Preferential Collection of Claims Against Company..................................................59
ARTICLE 8 LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.01. Option to Effect Legal Defeasance or Covenant Defeasance...........................................59
Section 8.02. Legal Defeasance and Discharge.....................................................................59
Section 8.03. Covenant Defeasance................................................................................60
Section 8.04. Conditions to Legal or Covenant Defeasance.........................................................60
Section 8.05. Deposited Money and Government Securities to be Held in Trust; Other Miscellaneous Provisions......61
Section 8.06. Repayment to Company...............................................................................62
Section 8.07. Reinstatement......................................................................................62
ARTICLE 9 AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.01. Without Consent of Holders of Notes................................................................62
Section 9.02. With Consent of Holders of Notes...................................................................63
ii
Section 9.03. Compliance with Trust Indenture Act................................................................64
Section 9.04. Revocation and Effect of Consents..................................................................65
Section 9.05. Notation on or Exchange of Notes...................................................................65
Section 9.06. Trustee to Sign Amendments, etc....................................................................65
ARTICLE 10 NOTE GUARANTEES
Section 10.01. Guarantee.........................................................................................65
Section 10.02. Limitation on Guarantor Liability.................................................................66
Section 10.03. Execution and Delivery of Note Guarantee..........................................................67
Section 10.04. Guarantors May Consolidate, etc., on Certain Terms................................................67
Section 10.05. Releases Following Sale of Assets.................................................................68
ARTICLE 11 MISCELLANEOUS
Section 11.01. Trust Indenture Act Controls......................................................................68
Section 11.02. Notices...........................................................................................68
Section 11.03. Communication by Holders of Notes with Other Holders of Notes.....................................70
Section 11.04. Certificate and Opinion as to Conditions Precedent................................................70
Section 11.05. Statements Required in Certificate or Opinion.....................................................70
Section 11.06. Rules by Trustee and Agents.......................................................................70
Section 11.07. No Personal Liability of Directors, Officers, Employees and Stockholders..........................71
Section 11.08. Governing Law.....................................................................................71
Section 11.09. No Adverse Interpretation of Other Agreements.....................................................71
Section 11.10. Successors........................................................................................71
Section 11.11. Severability......................................................................................71
Section 11.12. Counterpart Originals.............................................................................71
Section 11.13. Table of Contents, Headings, etc..................................................................71
EXHIBITS
Exhibit A FORM OF NOTE
Exhibit B FORM OF NOTATION OF GUARANTEE
Exhibit C FORM OF SUPPLEMENTAL INDENTURE TO BE DELIVERED BY SUBSEQUENT GUARANTORS
iii
INDENTURE dated as of May 17, 1999 between Crown Castle International
Corp., a Delaware corporation (the "Company"), and United States Trust Company
of New York, as trustee (the "Trustee").
The Company and the Trustee agree as follows for the benefit of each other
and for the equal and ratable benefit of the Holders of the 9% Senior Notes due
2011 (the "Notes"):
ARTICLE 1
DEFINITIONS AND INCORPORATION
BY REFERENCE
Section 1.01. Definitions.
"Acquired Debt" means, with respect to any specified Person:
(1) Indebtedness of any other Person existing at the time such other Person
is merged with or into or became a Subsidiary of such specified Person,
including, without limitation, Indebtedness incurred in connection
with, or in contemplation of, such other Person merging with or into or
becoming a Subsidiary of such specified Person; and
(2) Indebtedness secured by a Lien encumbering any asset acquired by such
specified Person.
"Adjusted Consolidated Cash Flow" means, as of any date of determination,
the sum of:
(1) the Consolidated Cash Flow of the Company for the four most recent full
fiscal quarters ending immediately prior to such date for which
internal financial statements are available, less the Company's Tower
Cash Flow for such four-quarter period; plus
(2) the product of four times the Company's Tower Cash Flow for the most
recent fiscal quarter for which internal financial statements are
available.
For purposes of making the computation referred to above:
(1) acquisitions that have been made by the Company or any of its Restricted
Subsidiaries, including through mergers or consolidations and including
any related financing transactions, during the reference period or
subsequent to such reference period and on or prior to the calculation
date shall be deemed to have occurred on the first day of the reference
period and Consolidated Cash Flow for such reference period shall be
calculated without giving effect to clause (2) of the proviso set forth
in the definition of Consolidated Net Income;
(2) the Consolidated Cash Flow attributable to discontinued operations, as
determined in accordance with GAAP, and operations or businesses disposed
of prior to the calculation date, shall be excluded; and
(3) the corporate development expense of the Company and its Restricted
Subsidiaries calculated in a manner consistent with the audited financial
statements of the Company included in the Prospectus shall be added to
Consolidated Cash Flow to the extent it was included in computing
Consolidated Net Income.
1
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For purposes of this definition, ''control''
(including, with correlative meanings, the terms ''controlling,'' ''controlled
by'' and ''under common control with''), as used with respect to any Person,
shall mean the possession, directly or indirectly, of the power to direct or
cause the direction of the management or policies of such Person, whether
through the ownership of voting securities, by agreement or otherwise; provided
that beneficial ownership of 10% or more of the Voting Stock of a Person shall
be deemed to be control.
"Agent" means any Registrar, Paying Agent or co-registrar.
"Applicable Procedures" means, with respect to any transfer or exchange of
or for beneficial interests in any Global Note, the rules and procedures of the
Depositary, Euroclear and Cedel that apply to such transfer or exchange.
"Asset Sale" means:
(1) the sale, lease, conveyance or other disposition of any assets or rights
(including, without limitation, by way of a sale and leaseback); provided
that the sale, lease, conveyance or other disposition of all or
substantially all of the assets of the Company and its Subsidiaries taken
as a whole will be governed by the Section 4.15 and Article 5 hereof and
not by Section 4.10 hereof; and
(2) the issue or sale by the Company or any of its Restricted Subsidiaries of
Equity Interests of any of the Company's Subsidiaries (other than
directors' qualifying shares or shares required by applicable law to be
held by a Person other than the Company or a Restricted Subsidiary), in
the case of either clause (1) or (2), whether in a single transaction or
a series of related transactions:
(a) that have a fair market value in excess of $1.0 million; or
(b) for net proceeds in excess of $1.0 million.
Notwithstanding the foregoing, the following items shall not be deemed to be
Asset Sales:
(1) a transfer of assets by the Company to a Restricted Subsidiary or by a
Restricted Subsidiary to the Company or to another Restricted Subsidiary;
(2) an issuance of Equity Interests by a Subsidiary to the Company or to
another Restricted Subsidiary;
(3) a transfer or issuance of Equity Interests of an Unrestricted Subsidiary
to an Unrestricted Subsidiary; provided, however, that such transfer or
issuance does not result in a decrease in the percentage of ownership of
the voting securities of such transferee Unrestricted Subsidiary that are
collectively held by the Company and its Subsidiaries.
(4) a Restricted Payment that is permitted by Section 4.07 hereof ;
(5) grants of leases or licenses in the ordinary course of business; and
(6) disposals of Cash Equivalents.
''Attributable Debt'' in respect of a sale and leaseback transaction means,
at the time of determination, the present value (discounted at the rate of
interest implicit in such transaction,
2
determined in accordance with GAAP) of the obligation of the lessee for net
rental payments during the remaining term of the lease included in such sale and
leaseback transaction (including any period for which such lease has been
extended or may, at the option of the lessor, be extended).
"Bankruptcy Law" means Title 11, U.S. Code or any similar federal or state
law for the relief of debtors.
"Board of Directors" means the Board of Directors of the Company, or any
authorized committee of the Board of Directors.
"Broker-Dealer" means any broker or dealer registered under the Exchange
Act.
"Business Day" means any day other than a Legal Holiday.
"Capital Lease Obligation" means, at the time any determination thereof is
to be made, the amount of the liability in respect of a capital lease that would
at such time be required to be capitalized on a balance sheet in accordance with
GAAP.
"Capital Stock" means:
(1) in the case of a corporation, corporate stock;
(2) in the case of an association or business entity, any and all shares,
interests, participations, rights or other equivalents (however
designated) of corporate stock;
(3) in the case of a partnership or limited liability company, partnership
or membership interests (whether general or limited); and
(4) any other interest or participation that confers on a Person the right
to receive a share of the profits and losses of, or distributions of
assets of, the issuing Person.
"Cash Equivalents" means:
(1) United States dollars;
(2) securities issued or directly and fully guaranteed or insured by the
United States government or any agency or instrumentality thereof
(provided that the full faith and credit of the United States is
pledged in support thereof) having maturities of not more than six
months from the date of acquisition;
(3) certificates of deposit and eurodollar time deposits with maturities of
six months or less from the date of acquisition, bankers' acceptances
with maturities not exceeding six months and overnight bank deposits,
in each case with any lender party to the Senior Credit Facility or
with any domestic commercial bank having capital and surplus in excess
of $500.0 million and a Thompson Bank Watch Rating of "B" or better;
3
(4) repurchase obligations with a term of not more than seven days for
underlying securities of the types described in clauses (2) and (3)
above entered into with any financial institution meeting the
qualifications specified in clause (3) above;
(5) commercial paper having the highest rating obtainable from Moody's
Investors Service, Inc. or Standard & Poor's Ratings Group and in each
case maturing within six months after the date of acquisition; and
(6) money market funds at least 95% of the assets of which constitute Cash
Equivalents of the kinds described in clauses (1)-(5) of this
definition.
"CCAIC" means CCA Investment Corp., which is an indirect wholly owned
Subsidiary of the Company and was formed to hold the Company's Equity Interests
in Crown Atlantic Holding Company LLC.
"Cedel" means Cedel Bank, S.A.
"Change of Control" means the occurrence of any of the following:
(1) the sale, lease, transfer, conveyance or other disposition (other than
by way of merger or consolidation), in one or a series of related
transactions, of all or substantially all of the assets of the Company
and its Restricted Subsidiaries, taken as a whole to any ''person'' (as
such term is used in Section 13(d)(3) of the Exchange Act) other than a
Principal or a Related Party of a Principal;
(2) the adoption of a plan relating to the liquidation or dissolution of
the Company;
(3) the consummation of any transaction (including, without limitation, any
merger or consolidation) the result of which is that any ''person'' (as
defined above), other than the Principals and their Related Parties,
becomes the ''beneficial owner'' (as such term is defined in Rule 13d-3
and Rule 13d-5 under the Exchange Act, except that a person shall be
deemed to have ''beneficial ownership'' of all securities that such
person has the right to acquire, whether such right is currently
exercisable or is exercisable only upon the occurrence of a subsequent
condition), directly or indirectly, of more than 50% of the Voting
Stock of the Company (measured by voting power rather than number of
shares); provided that transfers of Equity Interests in the Company
between or among the beneficial owners of the Company's Equity
Interests and/or Equity Interests in CTSH, in each case as of the date
hereof, will not be deemed to cause a Change of Control under this
clause (3) so long as no single Person together with its Affiliates
acquires a beneficial interest in more of the Voting Stock of the
Company than is at the time collectively beneficially owned by the
Principals and their Related Parties;
(4) the first day on which a majority of the members of the Board of
Directors are not Continuing Directors; or
(5) the Company consolidates with, or merges with or into, any Person, or
any Person consolidates with, or merges with or into, the Company, in
any such event pursuant to a
4
transaction in which any of the outstanding Voting Stock of the Company
is converted into or exchanged for cash, securities or other property,
other than any such transaction where:
(a) the Voting Stock of the Company outstanding immediately prior to
such transaction is converted into or exchanged for Voting Stock
(other than Disqualified Stock) of the surviving or transferee
Person constituting a majority of the outstanding shares of such
Voting Stock of such surviving or transferee Person (immediately
after giving effect to such issuance); or
(b) the Principals and their Related Parties own a majority of such
outstanding shares after such transaction.
"Company" means Crown Castle International Corp., and any and all
successors thereto.
"Completed Tower" means any wireless transmission tower owned or managed by
the Company or any of its Restricted Subsidiaries that, as of any date of
determination:
(1) has at least one wireless communications or broadcast tenant that has
executed a definitive lease with the Company or any of its Restricted
Subsidiaries, which lease is producing revenue with respect to the
tower as of the date of determination; and
(2) has capacity for at least two tenants in addition to the tenant
referred to in clause (1) of this definition.
"Consolidated Cash Flow" means, with respect to any Person for any period,
the Consolidated Net Income of such Person for such period; plus
(1) provision for taxes based on income or profits of such Person and its
Restricted Subsidiaries for such period, to the extent that such
provision for taxes was included in computing such Consolidated Net
Income; plus
(2) consolidated interest expense of such Person and its Restricted
Subsidiaries for such period, whether paid or accrued and whether or
not capitalized (including, without limitation, amortization of debt
issuance costs and original issue discount, non-cash interest payments,
the interest component of any deferred payment obligations, the
interest component of all payments associated with Capital Lease
Obligations, imputed interest with respect to Attributable Debt,
commissions, discounts and other fees and charges incurred in respect
of letters of credit or bankers' acceptance financings, and net
payments (if any) pursuant to Hedging Obligations), to the extent that
any such expense was deducted in computing such Consolidated Net
Income; plus
(3) depreciation, amortization (including amortization of goodwill and
other intangibles and other non-cash expenses (excluding any such non-
cash expense to the extent that it represents an accrual of or reserve
for cash expenses in any future period) of such Person and its
Restricted Subsidiaries for such period to the extent that such
depreciation, amortization and other non-cash expenses were deducted in
computing such Consolidated Net Income; minus
5
(4) non-cash items increasing such Consolidated Net Income for such period
(excluding any items that were accrued in the ordinary course of
business),
in each case on a consolidated basis and determined in accordance with GAAP.
"Consolidated Indebtedness" means, with respect to any Person as of any
date of determination, the sum, without duplication, of
(1) the total amount of Indebtedness of such Person and its Restricted
Subsidiaries; plus
(2) the total amount of Indebtedness of any other Person, to the extent
that such Indebtedness has been Guaranteed by the referent Person or
one or more of its Restricted Subsidiaries; plus
(3) the aggregate liquidation value of all Disqualified Stock of such
Person and all preferred stock of Restricted Subsidiaries of such
Person, in each case, determined on a consolidated basis in accordance
with GAAP.
"Consolidated Interest Expense" means, with respect to any Person for any
period:
(1) the consolidated interest expense of such Person and its Restricted
Subsidiaries for such period determined in accordance with GAAP,
whether paid or accrued and whether or not capitalized (including,
without limitation, amortization of debt issuance costs and original
issue discount, non-cash interest payments, the interest component of
any deferred payment obligations, the interest component of all
payments associated with Capital Lease Obligations, imputed interest
with respect to Attributable Debt, commissions, discounts and other
fees and charges incurred in respect of letter of credit or bankers'
acceptance financings, and net payments, if any, pursuant to Hedging
Obligations); plus
(2) all preferred stock dividends paid or accrued in respect of the
Company's and its Restricted Subsidiaries' preferred stock to Persons
other than the Company or a Wholly Owned Restricted Subsidiary of the
Company other than preferred stock dividends paid by the Company in
shares of preferred stock that is not Disqualified Stock.
"Consolidated Net Income" means, with respect to any Person for any period,
the aggregate of the Net Income of such Person and its Restricted Subsidiaries
for such period, on a consolidated basis, determined in accordance with GAAP;
provided that
(1) the Net Income (but not loss) of any Person other than the Company that
is not a Restricted Subsidiary or that is accounted for by the equity
method of accounting shall be included only to the extent of the amount
of dividends or distributions paid in cash to the referent Person or a
Restricted Subsidiary thereof;
(2) the Net Income of any Person acquired in a pooling of interests
transaction for any period prior to the date of such acquisition shall
be excluded;
(3) the cumulative effect of a change in accounting principles shall be
excluded; and
6
(4) the Net Income (but not loss) of any Unrestricted Subsidiary shall be
excluded whether or not distributed to the Company or one of its
Restricted Subsidiaries.
"Consolidated Tangible Assets" means, with respect to the Company, the
total consolidated assets of the Company and its Restricted Subsidiaries, less
the total intangible assets of the Company and its Restricted Subsidiaries, as
shown on the most recent internal consolidated balance sheet of the Company and
such Restricted Subsidiaries calculated on a consolidated basis in accordance
with GAAP.
"Continuing Directors" means, as of any date of determination, any member
of the Board of Directors who:
(1) was a member of such Board of Directors on the date hereof;
(2) was nominated for election or elected to such Board of Directors with
the approval of a majority of the Continuing Directors who were members
of such Board of Directors at the time of such nomination or election;
or
(3) is a designee of a Principal or was nominated by a Principal.
"Corporate Trust Office of the Trustee" shall be at the address of the
Trustee specified in Section 11.02 hereof or such other address as to which the
Trustee may give notice to the Company.
"Credit Facilities" means one or more debt facilities (including, without
limitation, the Senior Credit Facility) or commercial paper facilities with
banks or other institutional lenders providing for revolving credit loans, term
loans, receivables financing (including through the sale of receivables to such
lenders or to special purpose entities formed to borrow from such lenders
against such receivables) or letters of credit, in each case, as amended,
restated, modified, renewed, refunded, replaced or refinanced in whole or in
part from time to time.
"Crown Transaction Agreements" means, collectively:
(1) the Crown Memorandum of Understanding among the Company, Robert A.
Crown and Barbara A. Crown, dated as of July 2, 1998;
(2) the Crown Services Agreement between the Company and Robert A.
Crown, dated as of July 2, 1998; and
(3) the Registration Rights Crown Side Letter Agreement, among the
Company, Robert A. Crown and Barbara A. Crown, dated as of August 18, 1998.
"CTI" means Castle Transmission International Limited.
"CTI Operating Agreement" means the memorandum of understanding among the
Company, CTSH, CTI and TdF, dated as of August 21, 1998, relating to the
development of certain business opportunities outside of the United States and
the provision of certain business support and technical services in connection
therewith.
7
"CTI Services Agreement" means the amended and restated services agreement
between CTI and TdF, dated as of August 21, 1998, relating to the provision of
certain services to CTI.
"CTSH" means Crown Transmission Services (Holdings) Ltd and its successors.
"CTSH Shareholders' Agreement" means the agreement entered into by the
Company, CTSH and TdF, dated as of August 21, 1998, to govern the relationship
between the Company and Tdf as shareholders of CTSH.
"Custodian" means the Trustee, as Custodian with respect to the Notes in
global form, or any successor entity thereto.
"Debt to Adjusted Consolidated Cash Flow Ratio" means, as of any date of
determination, the ratio of:
(1) the Consolidated Indebtedness of the Company as of such date to
(2) the Adjusted Consolidated Cash Flow of the Company as of such date.
"Default" means any event that is, or with the passage of time or the
giving of notice or both would be, an Event of Default.
"Definitive Note" means a certificated Note registered in the name of the
Holder thereof and issued in accordance with Section 2.06 hereof, substantially
in the form of Exhibit A hereto except that such Note shall not bear the Global
Note Legend and shall not have the "Schedule of Exchanges of Interests in the
Global Note" attached thereto.
"Depositary" means, with respect to the Notes issuable or issued in whole
or in part in global form, the Person specified in Section 2.03 hereof as the
Depositary with respect to the Notes, and any and all successors thereto
appointed as depositary hereunder and having become such pursuant to the
applicable provision of this Indenture.
"Discount Notes" means the 10-3/8% Senior Discount Notes Due 2011 issued
pursuant to an indenture dated of even date herewith.
"Disqualified Stock" means any Capital Stock that, by its terms (or by the
terms of any security into which it is convertible or for which it is
exchangeable, in each case, at the option of the holder thereof), or upon the
happening of any event, matures or is mandatorily redeemable, pursuant to a
sinking fund obligation or otherwise, or redeemable at the option of the holder
thereof, in whole or in part, on or prior to the date that is 91 days after the
date on which the Notes mature; provided, however, that any Capital Stock that
would constitute Disqualified Stock solely because the holders thereof have the
right to require the Company to repurchase such Capital Stock upon the
occurrence of a Change of Control or an Asset Sale shall not constitute
Disqualified Stock if the terms of such Capital Stock provide that the Company
may not repurchase or redeem any such Capital Stock pursuant to such provisions
unless such repurchase or redemption complies with Section 4.07 hereof.
"Eligible Indebtedness" means any Indebtedness other than:
8
(1) Indebtedness in the form of, or represented by, bonds or other
securities or any guarantee thereof; and
(2) Indebtedness that is, or may be, quoted, listed or purchased and sold
on any stock exchange, automated trading system or over-the-counter or
other securities market (including, without prejudice to the generality
of the foregoing, the market for securities eligible for resale
pursuant to Rule 144A under the Securities Act).
"Equity Interests" means Capital Stock and all warrants, options or other
rights to acquire Capital Stock (but excluding any debt security that is
convertible into, or exchangeable for, Capital Stock).
"Euroclear" means Morgan Guaranty Trust Company of New York, Brussels
office, as operator of the Euroclear system.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Existing Indebtedness" means Indebtedness of the Company and its
Subsidiaries (other than Indebtedness under the Senior Credit Facility) in
existence on the date hereof, until such amounts are repaid.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as have been approved by a significant segment of the accounting
profession, which are in effect on the date hereof.
"Global Note Legend" means the legend set forth in Section 2.06(f), which
is required to be placed on all Global Notes issued under this Indenture.
"Global Notes" means the global Notes substantially in the form of Exhibit
A hereto.
"Governance Agreement" means the agreement among the Company, TdF and its
affiliates, dated as of August 21, 1998, to provide for certain rights and
obligations of the Company, TdF and its affiliates with respect to the
management of the Company.
"Government Securities" means direct obligations of, or obligations
guaranteed by, the United States of America, and the payment for which the
United States pledges its full faith and credit.
"Guarantee" means a guarantee (other than by endorsement of negotiable
instruments for collection in the ordinary course of business), direct or
indirect, in any manner (including, without limitation, by way of a pledge of
assets or through letters of credit or reimbursement agreements in respect
thereof), of all or any part of any Indebtedness. The term "Guarantor" shall
mean any Person Guaranteeing any obligation.
"Hedging Obligations" means, with respect to any Person, the obligations of
such Person under:
9
(1) interest rate swap agreements, interest rate cap agreements and
interest rate collar agreements; and
(2) other agreements or arrangements designed to protect such Person
against fluctuations in interest rates or currency exchange rates.
"Holder" means a Person in whose name a Note is registered.
"Indebtedness" means, with respect to any Person, any indebtedness of such
Person, whether or not contingent, in respect of borrowed money or evidenced by
bonds, notes, debentures or similar instruments or letters of credit (or
reimbursement agreements in respect thereof) or banker's acceptances or
representing Capital Lease Obligations or the balance deferred and unpaid of the
purchase price of any property or representing any Hedging Obligations, except
any such balance that constitutes an accrued expense or trade payable, if and to
the extent any of the foregoing indebtedness (other than letters of credit and
Hedging Obligations) would appear as a liability upon a balance sheet of such
Person prepared in accordance with GAAP, as well as all Indebtedness of others
secured by a Lien on any asset of such Person whether or not such Indebtedness
is assumed by such Person (the amount of such Indebtedness as of any date being
deemed to be the lesser of the value of such property or assets as of such date
or the principal amount of such Indebtedness of such other Person so secured)
and, to the extent not otherwise included, the Guarantee by such Person of any
Indebtedness of any other Person. The amount of any Indebtedness outstanding as
of any date shall be:
(1) the accreted value thereof, in the case of any Indebtedness issued with
original issue discount; and
(2) the principal amount thereof, together with any interest thereon that
is more than 30 days past due, in the case of any other Indebtedness.
"Indenture" means this Indenture, as amended or supplemented from time to
time.
"Indirect Participant" means a Person who holds a beneficial interest in a
Global Note through a Participant.
"Investments" means, with respect to any Person, all investments by such
Person in other Persons (including Affiliates) in the forms of direct or
indirect loans (including guarantees of Indebtedness or other obligations),
advances or capital contributions (excluding commission, travel and similar
advances to officers and employees made in the ordinary course of business),
purchases or other acquisitions for consideration of Indebtedness, Equity
Interests or other securities, together with all items that are or would be
classified as investments on a balance sheet prepared in accordance with GAAP.
If the Company or any Restricted Subsidiary of the Company sells or otherwise
disposes of any Equity Interests of any direct or indirect Subsidiary of the
Company or a Restricted Subsidiary of the Company issues any of its Equity
Interests such that, in each case, after giving effect to any such sale or
disposition, such Person is no longer a Restricted Subsidiary of the Company,
the Company shall be deemed to have made an Investment on the date of any such
sale or disposition equal to the fair market value of the Equity Interests of
such Subsidiary not sold or disposed of in an amount determined as provided in
the final paragraph of Section 4.07 hereof.
10
"Legal Holiday" means a Saturday, a Sunday or a day on which banking
institutions in the City of New York or at a place of payment are authorized by
law, regulation or executive order to remain closed. If a payment date is a
Legal Holiday at a place of payment, payment may be made at that place on the
next succeeding day that is not a Legal Holiday, and no interest shall accrue on
such payment for the intervening period.
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such asset,
whether or not filed, recorded or otherwise perfected under applicable law
(including any conditional sale or other title retention agreement, any lease in
the nature thereof, any option or other agreement to sell or give a security
interest in and any filing of or agreement to give any financing statement under
the Uniform Commercial Code (or equivalent statutes) of any jurisdiction).
"Net Income" means, with respect to any Person, the net income (loss) of
such Person, determined in accordance with GAAP and before any reduction in
respect of preferred stock dividends, excluding, however:
(1) any gain or loss, together with any related provision for taxes on such
gain or loss, realized in connection with:
(a) any Asset Sale (including, without limitation, dispositions pursuant
to sale and leaseback transactions); or
(b) the disposition of any securities by such Person or any of its
Restricted Subsidiaries or the extinguishment of any Indebtedness of
such Person or any of its Restricted Subsidiaries; and
(2) any extraordinary gain or loss, together with any related provision for
taxes on such extraordinary gain or loss.
"Net Proceeds" means the aggregate cash proceeds received by the Company or
any of its Restricted Subsidiaries in respect of any Asset Sale (including,
without limitation, any cash received upon the sale or other disposition of any
non-cash consideration received in any Asset Sale), net of:
(1) the direct costs relating to such Asset Sale (including, without
limitation, legal, accounting and investment banking fees, and sales
commissions) and any relocation expenses incurred as a result thereof;
(2) taxes paid or payable as a result thereof (after taking into account
any available tax credits or deductions and any tax sharing
arrangements);
(3) amounts required to be applied to the repayment of Indebtedness (other
than Indebtedness under a Credit Facility) secured by a Lien on the
asset or assets that were the subject of such Asset Sale;
(4) all distributions and other payments required to be made to minority
interest holders in Restricted Subsidiaries as a result of such Asset
Sale;
11
(5) the deduction of appropriate amounts provided by the seller as a
reserve in accordance with GAAP against any liabilities associated with
the assets disposed of in such Asset Sale and retained by the Company
or any Restricted Subsidiary after such Asset Sale; and
(6) without duplication, any reserves that Board of Directors determines in
good faith should be made in respect of the sale price of such asset or
assets for post closing adjustments;
provided that in the case of any reversal of any reserve referred to in clause
(5) or (6) above, the amount so reversed shall be deemed to be Net Proceeds from
an Asset Sale as of the date of such reversal.
"Non-Recourse Debt" means Indebtedness:
(1) as to which neither the Company nor any of its Restricted Subsidiaries:
(a) provides credit support of any kind (including any undertaking,
agreement or instrument that would constitute Indebtedness);
(b) is directly or indirectly liable (as a guarantor or otherwise); or
(c) constitutes the lender;
(2) no default with respect to which (including any rights that the holders
thereof may have to take enforcement action against an Unrestricted
Subsidiary) would permit (upon notice, lapse of time or both) any
holder of any other Indebtedness of the Company or any of its
Restricted Subsidiaries to declare a default on such other Indebtedness
or cause the payment thereof to be accelerated or payable prior to its
stated maturity; and
(3) as to which the lenders have been notified in writing that they will
not have any recourse to the stock or assets of the Company or any of
its Restricted Subsidiaries (except that this clause (3) will not apply
to any Indebtedness incurred by CTSH and its Subsidiaries prior to the
date CTSH became a Subsidiary).
"Notes" has the meaning assigned to it in the preamble to this Indenture.
"Obligations" means any principal, interest, penalties, fees,
indemnifications, reimbursements, damages and other liabilities payable under
the documentation governing any Indebtedness.
"Offering" means the offering of the Notes by the Company.
"Officer" means, with respect to any Person, the Chairman of the Board, the
Chief Executive Officer, the President, the Chief Operating Officer, the Chief
Financial Officer, the Treasurer, any Assistant Treasurer, the Controller, the
Secretary or any Vice-President of such Person.
"Officers' Certificate" means a certificate signed on behalf of the Company
by two Officers of the Company, one of whom must be the principal executive
officer, the principal financial officer, the treasurer or the principal
accounting officer of the Company, that meets the requirements of Section 11.04
hereof.
12
"Opinion of Counsel" means an opinion from legal counsel who is reasonably
acceptable to the Trustee, that meets the requirements of Section 11.04 hereof.
The counsel may be an employee of or counsel to the Company, any Subsidiary of
the Company or the Trustee.
"Participant" means, with respect to the Depositary, Euroclear or Cedel, a
Person who has an account with the Depositary, Euroclear or Cedel, respectively
(and, with respect to DTC, shall include Euroclear and Cedel).
"Permitted Business" means any business conducted by the Company, its
Restricted Subsidiaries or CTSH and its Subsidiaries on the date hereof and any
other business related, ancillary or complementary to any such business.
"Permitted Investments" means:
(1) any Investment in the Company or in a Restricted Subsidiary of the
Company;
(2) any Investment in Cash Equivalents;
(3) any Investment by the Company or any Restricted Subsidiary of the
Company in a Person, if as a result of such Investment:
(a) such Person becomes a Restricted Subsidiary of the Company; or
(b) such Person is merged, consolidated or amalgamated with or into, or
transfers or conveys substantially all of its assets to, or is
liquidated into, the Company or a Restricted Subsidiary of the
Company;
(4) any Restricted Investment made as a result of the receipt of non-cash
consideration from an Asset Sale that was made pursuant to and in
compliance with Section 4.10 hereof;
(5) any acquisition of assets solely in exchange for the issuance of Equity
Interests (other than Disqualified Stock) of the Company;
(6) receivables created in the ordinary course of business;
(7) loans or advances to employees made in the ordinary course of business
not to exceed $2.0 million at any one time outstanding;
(8) securities and other assets received in settlement of trade debts or
other claims arising in the ordinary course of business;
(9) purchases of additional Equity Interests in CTSH for cash pursuant to
the Governance Agreement as the same is in effect on the date hereof
for aggregate cash consideration not to exceed $20.0 million since the
beginning of the quarter during which this Indenture is executed;
(10) the Investment of up to an aggregate of $100.0 million (each such
Investment being measured as of the date made and without giving effect
to subsequent changes in value); and
13
(11) other Investments in Permitted Businesses not to exceed an amount equal
to $10.0 million plus 10% of the Company's Consolidated Tangible Assets
at any one time outstanding (each such Investment being measured as of
the date made and without giving effect to subsequent changes in
value).
"Permitted Liens" means:
(1) Liens securing Eligible Indebtedness of the Company under one or more
Credit Facilities that was permitted by the terms hereof to be
incurred;
(2) Liens securing any Indebtedness of any of the Company's Restricted
Subsidiaries that was permitted by the terms hereof to be incurred;
(3) Liens in favor of the Company;
(4) Liens existing on the date hereof;
(5) Liens for taxes, assessments or governmental charges or claims that are
not yet delinquent or that are being contested in good faith by
appropriate proceedings promptly instituted and diligently concluded;
provided that any reserve or other appropriate provision as shall be
required in conformity with GAAP shall have been made therefor;
(6) Liens securing Indebtedness permitted to be incurred under clause (5)
of the second paragraph of Section 4.09 hereof; and
(7) Liens incurred in the ordinary course of business of the Company or any
Restricted Subsidiary of the Company with respect to obligations that
do not exceed $5.0 million at any one time outstanding and that:
(a) are not incurred in connection with the borrowing of money or the
obtaining of advances or credit (other than trade credit in the
ordinary course of business); and
(b) do not in the aggregate materially detract from the value of the
property or materially impair the use thereof in the operation of
business by the Company or such Restricted Subsidiary.
"Permitted Refinancing Indebtedness" means any Indebtedness of the Company
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 Company or any of its Restricted Subsidiaries
(other than intercompany Indebtedness); provided that:
(1) the principal amount (or initial accreted value, if applicable) of such
Permitted 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 expenses and prepayment premiums incurred
in connection therewith);
14
(2) such Permitted Refinancing Indebtedness has a final maturity date later
than the final maturity date of, and has a Weighted Average Life to
Maturity equal to or greater than the Weighted Average Life to Maturity
of, the Indebtedness being extended, refinanced, renewed, replaced,
defeased or refunded;
(3) if the Indebtedness being extended, refinanced, renewed, replaced,
defeased or refunded is subordinated in right of payment to the Notes,
such Permitted Refinancing Indebtedness 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
(4) such Indebtedness is incurred either by the Company or by the
Restricted Subsidiary who is the obligor on the Indebtedness being
extended, refinanced, renewed, replaced, defeased or refunded.
"Person" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
government or agency or political subdivision thereof (including any subdivision
or ongoing business of any such entity or substantially all of the assets of any
such entity, subdivision or business).
"Principals" means Berkshire Fund III, Limited Partnership; Berkshire Fund
IV, Limited Partnership; Berkshire Investors LLC; Berkshire Partners LLC;
Centenial Fund IV, L.P.; Centenial Fund V, L.P.; Centenial Entrepreneurs Fund V,
L.P.; Nassau Capital Partners II, L.P.; NAS Partners I, L.L.C., and TdF and any
Related Party of the foregoing.
"Prospectus" means the prospectus, dated as of May 12, 1999, included in
the Company's registration statement (File No. 333-74553) relating to the
offering of the Notes, dated as of May 12, 1999, as amended or supplemented by
any prospectus supplement and by all other amendments thereto, including post-
effective amendments, and all material incorporated by reference in such
prospectus.
"Public Equity Offering" means an underwritten primary public offering of
common stock of the Company pursuant to an effective registration statement
under the Securities Act.
"Related Party" with respect to any Principal means:
(1) any controlling stockholder, 80% (or more) owned Subsidiary of such
Principal; or
(2) any trust, corporation, partnership or other entity, the beneficiaries,
stockholders, members, partners, owners or Persons beneficially holding
an 80% or more controlling interest of which consist of such Principal
and/or such other Persons referred to in the immediately preceding
clause (1).
"Responsible Office" with respect to the Trustee, means any officer within
the Corporate Trust Administration of the Trustee (or any successor group of the
Trustee) or any other officer of the Trustee customarily performing functions
similar to those performed by any of the above designated officers and also
means, with respect to a particular corporate trust matter, any other officer to
whom such matter is referred because of his knowledge of and familiarity with
the particular subject.
15
"Restricted Investment" means an Investment other than a Permitted
Investment.
"Restricted Subsidiary" of a Person means any Subsidiary of the referent
Person that is not an Unrestricted Subsidiary.
""Rights Agreements" means the agreement between the Company and
ChaseMellon Shareholders Services, L.L.C., as rights agent, dated as of August
21, 1998, relating to the dividend declared by the Company consisting of the
right to purchase 1/100th of a share of the Company's Series A Participating
Cumulative Preferred Stock, par value $.01 per share.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended.
"Senior Credit Facility" means that certain Amended and Restated Loan
Agreement, dated as of July 10, 1998, by and among Key Corporate Capital Inc.
and PNC Bank, National Association, as arrangers and agents for the financial
institutions listed therein, and Crown Communication Inc. and Crown Castle
International Corp. de Puerto Rico, including any related notes, guarantees,
collateral documents, instruments and agreements executed in connection
therewith, and in each case as amended, modified, renewed, refunded, replaced or
refinanced from time to time.
"Significant Subsidiary" means, with respect to any Person, any Restricted
Subsidiary of such Person that would be a ''significant subsidiary'' of such
Person as defined in Article 1, Rule 1-02 of Regulation S-X, promulgated
pursuant to the Act, as such Regulation is in effect on the date hereof, except
that all references to ''10 percent'' in Rule 1-02(w)(1), (2) and (3) shall mean
''5 percent'' and that all Unrestricted Subsidiaries of the Company shall be
excluded from all calculations under Rule 1-02(w).
"Stated Maturity" means, with respect to any installment of interest or
principal on any series of Indebtedness, the date on which such payment of
interest or principal was scheduled to be paid in the original documentation
governing such Indebtedness, and shall not include any contingent obligations to
repay, redeem or repurchase any such interest or principal prior to the date
originally scheduled for the payment thereof.
"Stockholders' Agreement" means the agreement among the Company and certain
stockholders of the Company, dated as of August 21, 1998, to provide for certain
rights and obligations of the Company and such stockholders with respect to the
governance of the Company and such stockholders' shares of Common Stock and/or
Class A Common Stock of the Company.
"Strategic Equity Investment" means a cash contribution to the common
equity capital of the Company or a purchase from the Company of common Equity
Interests (other than Disqualified Stock), in either case by or from a Strategic
Equity Investor and for aggregate cash consideration of at least $50.0 million.
"Strategic Equity Investor" means a Person engaged in a Permitted Business
whose Total Equity Market Capitalization exceeds $1.0 billion.
16
"Subsidiary" means, with respect to any Person:
(1) any corporation, association or other business entity of which more
than 50% of the total voting power of shares of Capital Stock entitled
(without regard to the occurrence of any contingency) to vote in the
election of directors, managers or trustees thereof is at the time
owned or controlled, directly or indirectly, by such Person or one or
more of the other Subsidiaries of that Person (or a combination
thereof); and
(2) any partnership:
(a) the sole general partner or the managing general partner of which is
such Person or a Subsidiary of such Person; or
(b) the only general partners of which are such Person or of one or more
Subsidiaries of such Person (or any combination thereof).
"TdF" means TeleDiffusion de France International S.A.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. (S)(S) 77aaa-77bbbb)
as in effect on the date on which this Indenture is qualified under the TIA.
"Total Equity Market Capitalization" of any Person means, as of any day of
determination, the sum of:
(1) the product of:
(a) 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); multiplied by
(b) the average closing price of such common stock listed on a national
securities exchange or the Nasdaq National Market System over the 20
consecutive business days immediately preceding such day; plus
(2) the liquidation value of any outstanding shares of preferred stock of
such Person on such day.
"Tower Asset Exchange" means any transaction in which the Company or one of
its Restricted Subsidiaries exchanges assets for Tower Assets and/or cash or
Cash Equivalents where the fair market value (evidenced by a resolution of the
Board of Directors set forth in an Officers' Certificate delivered to the
Trustee) of the Tower Assets and cash or Cash Equivalents received by the
Company and its Restricted Subsidiaries in such exchange is at least equal to
the fair market value of the assets disposed of in such exchange.
"Tower Assets" means wireless transmission towers and related assets that
are located on the site of a transmission tower.
17
"Tower Cash Flow" means, for any period, the Consolidated Cash Flow of the
Company and its Restricted Subsidiaries for such period that is directly
attributable to site rental revenue or license fees paid to lease or sublease
space on communication sites owned or leased by the Company, all determined on a
consolidated basis and in accordance with GAAP. Tower Cash Flow will not include
revenue or expenses attributable to non-site rental services provided by the
Company or any of its Restricted Subsidiaries to lessees of communication sites
or revenues derived from the sale of assets.
"Trustee" means the party named as such above until a successor replaces it
in accordance with the applicable provisions of this Indenture and thereafter
means the successor serving hereunder.
"Unrestricted Subsidiary" means any Subsidiary of the Company that is
designated by the Board of Directors as an Unrestricted Subsidiary pursuant to a
board resolution; but only to the extent that such Subsidiary:
(1) has no Indebtedness other than Non-Recourse Debt;
(2) is not party to any agreement, contract, arrangement or understanding
with the Company or any Restricted Subsidiary of the Company unless the
terms of any such agreement, contract, arrangement or understanding are
no less favorable to the Company or such Restricted Subsidiary than
those that might be obtained at the time from Persons who are not
Affiliates of the Company;
(3) is a Person with respect to which neither the Company nor any of its
Restricted Subsidiaries has any direct or indirect obligation:
(a) to subscribe for additional Equity Interests; or
(b) to maintain or preserve such Person's financial condition or to cause
such Person to achieve any specified levels of operating results;
(4) has not guaranteed or otherwise directly or indirectly provided credit
support for any Indebtedness of the Company or any of its Restricted
Subsidiaries; and
(5) has at least one director on its Board of Directors that is not a
director or executive officer of the Company or any of its Restricted
Subsidiaries and has at least one executive officer that is not a
director or executive officer of the Company or any of its Restricted
Subsidiaries.
Any such designation by the Board of Directors shall be evidenced to the
Trustee by filing with the trustee a certified copy of the board resolution
giving effect to such designation and an Officers' Certificate certifying that
such designation complied with the foregoing conditions and was permitted by
Section 4.07 hereof. If, at any time, any Unrestricted Subsidiary would fail
to meet the foregoing requirements as an Unrestricted Subsidiary, it shall
thereafter cease to be an Unrestricted Subsidiary for purposes of this
Indenture, and any Indebtedness of that Subsidiary shall be deemed to be
incurred by a Restricted Subsidiary of the Company as of such date (and, if such
Indebtedness is not permitted to be incurred as of such date under Section 4.09
hereof, the Company shall be in default of Section 4.09 hereof). The Board of
Directors may at any time designate any Unrestricted Subsidiary to be a
Restricted Subsidiary; provided that the designation shall be deemed to be an
incurrence of Indebtedness by a Restricted Subsidiary of the Company of any
outstanding Indebtedness of such Unrestricted
18
Subsidiary and the designation shall only be permitted if (1) such Indebtedness
is permitted under Section 4.09 hereof, calculated on a pro forma basis as if
such designation had occurred at the beginning of the four-quarter reference
period and (2) no Default would occur or be in existence following such
designation.
"U.S. Person" means a U.S. person as defined in Rule 902(o) under the
Securities Act.
"Voting Stock" of any Person as of any date means the Capital Stock of such
Person that is at the time entitled to vote in the election of the board of
directors of such Person.
"Weighted Average Life to Maturity" means, when applied to any Indebtedness
at any date, the number of years obtained by dividing:
(1) 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
(2) the then outstanding principal amount of such Indebtedness.
"Wholly Owned Restricted Subsidiary" of any Person means a Restricted
Subsidiary of such Person all of the outstanding Capital Stock or other
ownership interests of which (other than directors' qualifying shares) shall at
the time be owned by such Person or by one or more Wholly Owned Restricted
Subsidiaries of such Person or by such Person and one or more Wholly Owned
Restricted Subsidiaries of such Person.
19
Section 1.02. Other Definitions.
Defined in
Term Section
- ---- -------
"Affiliate Transaction"........................................................... 4.11
"Asset Sale Offer"................................................................ 3.09
"Authentication Order"............................................................ 2.02
"Change of Control Offer"......................................................... 4.15
"Change of Control Payment"....................................................... 4.15
"Change of Control Payment Date".................................................. 4.15
"Covenant Defeasance"............................................................. 8.03
"Event of Default"................................................................ 6.01
"Excess Proceeds"................................................................. 4.10
"incur"........................................................................... 4.09
"Legal Defeasance"................................................................ 8.02
"Offer Amount".................................................................... 3.09
"Offer Period".................................................................... 3.09
"Paying Agent".................................................................... 2.03
"Payment Default"................................................................. 6.01
"Permitted Debt".................................................................. 4.09
"Purchase Date"................................................................... 3.09
"Registrar"....................................................................... 2.03
"Restricted Payments"............................................................. 4.07
Section 1.03. Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the 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:
"indenture securities" means the Notes;
"indenture security Holder" means a Holder of a Note;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the Trustee; and
"obligor" on the Notes means the Company and any successor obligor upon
the Notes.
All other terms used in this Indenture that are defined by the TIA,
defined by the TIA's reference to another statute or defined by SEC rule under
the TIA have the meanings so assigned to them.
Section 1.04. Rules of Construction.
Unless the context otherwise requires:
20
(a) a term has the meaning assigned to it;
(b) an accounting term not otherwise defined has the meaning assigned to
it in accordance with GAAP;
(c) "or" is not exclusive;
(d) words in the singular include the plural, and in the plural include
the singular;
(e) provisions apply to successive events and transactions; and
(f) references to sections of or rules under the Securities Act shall be
deemed to include substitute, replacement or successor sections or rules adopted
by the SEC from time to time.
ARTICLE 2
THE NOTES
Section 2.01. Form and Dating.
(a) General. The Notes and the Trustee's certificate of authentication
shall be substantially in the form of Exhibit A hereto. The Notes may have
notations, legends or endorsements required by law, stock exchange rule or
usage. Each Note shall be dated the date of its authentication. The Notes
shall be in denominations of $1,000 and integral multiples thereof.
The terms and provisions contained in the Notes shall constitute, and are
hereby expressly made, a part of this Indenture and 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. However, to the extent any provision of
any Note conflicts with the express provisions of this Indenture, the provisions
of this Indenture shall govern and be controlling.
(b) Global Notes. Notes issued in global form shall be substantially in
the form of Exhibit A attached hereto (including the Global Note Legend thereon
and the "Schedule of Exchanges of Interests in the Global Note" attached
thereto). Notes issued in definitive form shall be substantially in the form of
Exhibit A attached hereto (but without the Global Note Legend thereon and
without the "Schedule of Exchanges of Interests in the Global Note" attached
thereto). Each Global Note shall represent such of the outstanding Notes as
shall be specified therein and each shall provide that it shall represent the
aggregate principal amount of outstanding Notes from time to time endorsed
thereon and that the aggregate principal amount of outstanding Notes represented
thereby may from time to time be reduced or increased, as appropriate, to
reflect exchanges and redemptions. Any endorsement of a Global Note to reflect
the amount of any increase or decrease in the aggregate principal amount of
outstanding Notes represented thereby shall be made by the Trustee or the
Custodian, at the direction of the Trustee, in accordance with instructions
given by the Holder thereof as required by Section 2.06 hereof.
(d) Euroclear and Cedel Procedures Applicable. The provisions of the
"Operating Procedures of the Euroclear System" and "Terms and Conditions
Governing Use of Euroclear" and the "General Terms and Conditions of Cedel Bank"
and "Customer Handbook" of Cedel Bank shall be
21
applicable to transfers of beneficial interests in Global Notes that are held by
Participants through Euroclear or Cedel Bank.
Section 2.02. Execution and Authentication.
Two Officers shall sign the Notes for the Company by manual or facsimile
signature. The Company's seal shall be reproduced on the Notes and may be in
facsimile form.
If an Officer whose signature is on a Note no longer holds that office at
the time a Note is authenticated, the Note shall nevertheless be valid.
A Note shall not be valid until authenticated by the manual signature of
the Trustee. The signature shall be conclusive evidence that the Note has been
authenticated under this Indenture.
The Trustee shall, upon a written order of the Company signed by two
Officers (an "Authentication Order"), authenticate Notes for original issue up
to the aggregate principal amount stated in paragraph 4 of the Notes. The
aggregate principal amount of Notes outstanding at any time may not exceed such
amount except as provided in Section 2.08 hereof.
The Trustee may appoint an authenticating agent acceptable to the Company
to authenticate Notes. An authenticating agent may authenticate Notes whenever
the Trustee may do so. Each reference in this Indenture to authentication by
the Trustee includes authentication by such agent. An authenticating agent has
the same rights as an Agent to deal with Holders or an Affiliate of the Company.
Section 2.03. Registrar and Paying Agent.
The Company shall maintain an office or agency where Notes may be
presented for registration of transfer or for exchange ("Registrar") and an
office or agency where Notes may be presented for payment ("Paying Agent"). The
Registrar shall keep a register of the Notes and of their transfer and exchange.
The Company may appoint one or more co-registrars and one or more additional
paying agents. The term "Registrar" includes any co-registrar and the term
"Paying Agent" includes any additional paying agent. The Company may change any
Paying Agent or Registrar without notice to any Holder. The Company shall
notify the Trustee in writing of the name and address of any Agent not a party
to this Indenture. If the Company fails to appoint or maintain another entity
as Registrar or Paying Agent, the Trustee shall act as such. The Company or any
of its Subsidiaries may act as Paying Agent or Registrar.
The Company initially appoints The Depository Trust Company ("DTC") to act
as Depositary with respect to the Global Notes.
The Company initially appoints the Trustee to act as the Registrar and
Paying Agent and to act as Custodian with respect to the Global Notes.
Section 2.04. Paying Agent to Hold Money in Trust.
The Company shall require each Paying Agent other than the Trustee to
agree in writing that the Paying Agent will hold in trust for the benefit of the
Holders or the Trustee all money held by the Paying Agent for the payment of
principal of, or premium, if any, or interest on the Notes, and will
22
notify the Trustee of any default by the Company in making any such payment.
While any such default continues, the Trustee may require a Paying Agent to pay
all money held by it to the Trustee. The Company at any time may require a
Paying Agent to pay all money held by it to the Trustee. Upon payment over to
the Trustee, the Paying Agent (if other than the Company or a Subsidiary) shall
have no further liability for the money. If the Company or a Subsidiary acts as
Paying Agent, it shall segregate and hold in a separate trust fund for the
benefit of the Holders all money held by it as Paying Agent. Upon any bankruptcy
or reorganization proceedings relating to the Company, the Trustee shall serve
as Paying Agent for the Notes.
Section 2.05. Holder Lists.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
all Holders and shall otherwise comply with TIA (S) 312(a). If the Trustee is
not the Registrar, the Company shall furnish to the Trustee at least seven
Business Days before each interest payment date and at such other times as the
Trustee may request in writing, a list in such form and as of such date as the
Trustee may reasonably require of the names and addresses of the Holders of
Notes, and the Company shall otherwise comply with TIA (S) 312(a).
Section 2.06. Transfer and Exchange.
(a) Transfer and Exchange of Global Notes. A Global Note may not be
transferred as a whole except by the Depositary to a nominee of the Depositary,
by a nominee of the Depositary to the Depositary or to another nominee of the
Depositary, or by the Depositary or any such nominee to a successor Depositary
or a nominee of such successor Depositary. All Global Notes will be exchanged
by the Company for Definitive Notes if (i) the Company delivers to the Trustee
notice from the Depositary that it is unwilling or unable to continue to act as
Depositary or that it is no longer a clearing agency registered under the
Exchange Act and, in either case, a successor Depositary is not appointed by the
Company within 120 days after the date of such notice from the Depositary or
(ii) the Company in its sole discretion determines that the Global Notes (in
whole but not in part) should be exchanged for Definitive Notes and delivers a
written notice to such effect to the Trustee. Upon the occurrence of either of
the preceding events in (i) or (ii) above, Definitive Notes shall be issued in
such names as the Depositary shall instruct the Trustee. Global Notes also may
be exchanged or replaced, in whole or in part, as provided in Sections 2.07 and
2.10 hereof. Every Note authenticated and delivered in exchange for, or in lieu
of, a Global Note or any portion thereof, pursuant to this Section 2.06, or
Section 2.07 or 2.10 hereof, shall be authenticated and delivered in the form
of, and shall be, a Global Note. A Global Note may not be exchanged for another
Note other than as provided in this Section 2.06(a); however, beneficial
interests in a Global Note may be transferred and exchanged as provided in
Section 2.06(b), (c) or (f) hereof.
(b) Transfer and Exchange of Beneficial Interests in the Global Notes.
The transfer and exchange of beneficial interests in the Global Notes shall be
effected through the Depositary, in accordance with the provisions of this
Indenture and the Applicable Procedures. Transfers of beneficial interests in
the Global Notes also shall require compliance with either subparagraph (i) or
(ii) below, as applicable, as well as one or more of the other following
subparagraphs, as applicable:
(i) Transfer of Beneficial Interests in the Same Global Note.
Beneficial interests in any Global Note may be transferred to Persons who
take delivery thereof in the form of a beneficial
23
interest in the same Global Note. No written orders or instructions shall be
required to be delivered to the Registrar to effect the transfers described in
this Section 2.06(b)(i).
(ii) All Other Transfers and Exchanges of Beneficial Interests in
Global Notes. In connection with all transfers and exchanges of beneficial
interests that are not subject to Section 2.06(b)(i) above, the transferor of
such beneficial interest must deliver to the Registrar either (A) (1) a
written order from a Participant or an Indirect Participant given to the
Depositary in accordance with the Applicable Procedures directing the
Depositary to credit or cause to be credited a beneficial interest in another
Global Note in an amount equal to the beneficial interest to be transferred
or exchanged and (2) instructions given in accordance with the Applicable
Procedures containing information regarding the Participant account to be
credited with such increase or (B) (1) a written order from a Participant or
an Indirect Participant given to the Depositary in accordance with the
Applicable Procedures directing the Depositary to cause to be issued a
Definitive Note in an amount equal to the beneficial interest to be
transferred or exchanged and (2) instructions given by the Depositary to the
Registrar containing information regarding the Person in whose name such
Definitive Note shall be registered to effect the transfer or exchange
referred to in (1) above. Upon satisfaction of all of the requirements for
transfer or exchange of beneficial interests in Global Notes contained in
this Indenture and the Notes or otherwise applicable under the Securities
Act, the Trustee shall adjust the principal amount of the relevant Global
Note(s) pursuant to Section 2.06(g) hereof.
(c) Transfer or Exchange of Beneficial Interests for Definitive Notes.
If any holder of a beneficial interest in a Global Note proposes to exchange
such beneficial interest for a Definitive Note or to transfer such beneficial
interest to a Person who takes delivery thereof in the form of a Definitive
Note, then, upon satisfaction of the conditions set forth in Section
2.06(b)(ii) hereof, the Trustee shall cause the aggregate principal amount of
the applicable Global Note to be reduced accordingly pursuant to Section
2.06(g) hereof, and the Company shall execute and the Trustee shall
authenticate and deliver to the Person designated in the instructions a
Definitive Note in the appropriate principal amount. Any Definitive Note
issued in exchange for a beneficial interest pursuant to this Section 2.06(c)
shall be registered in such name or names and in such authorized denomination
or denominations as the holder of such beneficial interest shall instruct the
Registrar through instructions from the Depositary and the Participant or
Indirect Participant.
(d) Transfer and Exchange of Definitive Notes for Beneficial Interests
in Global Notes. A Holder of a Definitive Note may exchange such Note for a
beneficial interest in a Global Note or transfer such Definitive Notes to a
Person who takes delivery thereof in the form of a beneficial interest in a
Global Note at any time. Upon receipt of a request for such an exchange or
transfer, the Trustee shall cancel the applicable Definitive Note and
increase or cause to be increased the aggregate principal amount of one of
the Global Notes.
(e) Transfer and Exchange of Definitive Notes for Definitive Notes. Upon
request by a Holder of Definitive Notes and such requesting Holder's presenting
or surrendering to the Registrar of the Definitive Notes duly endorsed or
accompanied by a written instruction of transfer in form satisfactory to the
Registrar duly executed by such Holder or by its attorney, duly authorized in
writing, the Registrar shall register the transfer or exchange of Definitive
Notes.
(f) Legends. Each Global Note shall bear a legend in substantially the
following form:
24
"THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE
GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL
OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES
EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED
PURSUANT TO SECTION 2.06 OF THE INDENTURE, (II) THIS GLOBAL NOTE MAY BE
EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(a) OF THE INDENTURE,
(III) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT
TO SECTION 2.11 OF THE INDENTURE AND (IV) THIS GLOBAL NOTE MAY BE TRANSFERRED TO
A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF CROWN CASTLE
INTERNATIONAL CORP."
(g) Cancellation and/or Adjustment of Global Notes. At such time as all
beneficial interests in a particular Global Note have been exchanged for
Definitive Notes or a particular Global Note has been redeemed, repurchased or
canceled in whole and not in part, each such Global Note shall be returned to or
retained and canceled by the Trustee in accordance with Section 2.11 hereof. At
any time prior to such cancellation, if any beneficial interest in a Global Note
is exchanged for or transferred to a Person who will take delivery thereof in
the form of a beneficial interest in another Global Note or for Definitive
Notes, the principal amount of Notes represented by such Global Note shall be
reduced accordingly and an endorsement shall be made on such Global Note by the
Trustee or by the Depositary at the direction of the Trustee to reflect such
reduction; and if the beneficial interest is being exchanged for or transferred
to a Person who will take delivery thereof in the form of a beneficial interest
in another Global Note, such other Global Note shall be increased accordingly
and an endorsement shall be made on such Global Note by the Trustee or by the
Depositary at the direction of the Trustee to reflect such increase.
(h) General Provisions Relating to Transfers and Exchanges.
(i) To permit registrations of transfers and exchanges, the Company
shall execute and the Trustee shall authenticate Global Notes and Definitive
Notes upon the Company's order or at the Registrar's request.
(ii) No service charge shall be made to a holder of a beneficial
interest in a Global Note or to a Holder of a Definitive Note for any
registration of transfer or exchange, but the Company may require payment of
a sum sufficient to cover any transfer tax or similar governmental charge
payable in connection therewith (other than any such transfer taxes or
similar governmental charge payable upon exchange or transfer pursuant to
Sections 2.10, 3.06, 3.09, 4.10, 4.15 and 9.05 hereof).
(iii) The Registrar shall not be required to register the transfer of
or exchange any Note selected for redemption in whole or in part, except the
unredeemed portion of any Note being redeemed in part.
(iv) All Global Notes and Definitive Notes issued upon any
registration of transfer or exchange of Global Notes or Definitive Notes
shall be the valid obligations of the Company, evidencing the same debt, and
entitled to the same benefits under this Indenture, as the Global Notes or
Definitive Notes surrendered upon such registration of transfer or exchange.
(v) The Company shall not be required (A) to issue, to register the
transfer of or to exchange any Notes during a period beginning at the opening
of business 15 days before the day of
25
any selection of Notes for redemption under Section 3.02 hereof and ending at
the close of business on the day of selection, (B) to register the transfer of
or to exchange any Note so selected for redemption in whole or in part, except
the unredeemed portion of any Note being redeemed in part or (C) to register the
transfer of or to exchange a Note between a record date and the next succeeding
Interest Payment Date.
(vi) Prior to due presentment for the registration of a transfer of
any Note, the Trustee, any Agent and the Company may deem and treat the
Person in whose name any Note is registered as the absolute owner of such
Note for the purpose of receiving payment of principal of and interest on
such Notes and for all other purposes, and none of the Trustee, any Agent or
the Company shall be affected by notice to the contrary.
(vii) The Trustee shall authenticate Global Notes and Definitive Notes
in accordance with the provisions of Section 2.02 hereof.
(viii) All certifications, certificates and Opinions of Counsel
required to be submitted to the Registrar pursuant to this Section 2.06 to
effect a registration of transfer or exchange may be submitted by facsimile.
Section 2.07. Replacement Notes.
If any mutilated Note is surrendered to the Trustee or the Company and the
Trustee receives evidence to its satisfaction of the destruction, loss or theft
of any Note, the Company shall issue and the Trustee, upon receipt of an
Authentication Order, shall authenticate a replacement Note if the Trustee's
requirements are met. If required by the Trustee or the Company, an indemnity
bond must be supplied by the Holder that is sufficient in the judgment of the
Trustee and the Company to protect the Company, the Trustee, any Agent and any
authenticating agent from any loss that any of them may suffer if a Note is
replaced. The Company may charge for its expenses in replacing a Note.
Every replacement Note is an additional obligation of the Company and
shall be entitled to all of the benefits of this Indenture equally and
proportionately with all other Notes duly issued hereunder.
Section 2.08. Outstanding Notes.
The Notes outstanding at any time are all the Notes authenticated by the
Trustee except for those canceled by it, those delivered to it for cancellation,
those reductions in the interest in a Global Note effected by the Trustee in
accordance with the provisions hereof, and those described in this Section as
not outstanding. Except as set forth in Section 2.09 hereof, a Note does not
cease to be outstanding because the Company or an Affiliate of the Company holds
the Note; however, Notes held by the Company or a Subsidiary of the Company
shall not be deemed to be outstanding for purposes of Section 3.07(b) hereof.
If a Note is replaced pursuant to Section 2.07 hereof, it ceases to be
outstanding unless the Trustee receives proof satisfactory to it that the
replaced Note is held by a bona fide purchaser.
If the principal amount of any Note is considered paid under Section 4.01
hereof, it ceases to be outstanding and interest on it ceases to accrue.
26
If the Paying Agent (other than the Company, a Subsidiary or an Affiliate
of any thereof) holds, on a redemption date or maturity date, money sufficient
to pay Notes payable on that date, then on and after that date such Notes shall
be deemed to be no longer outstanding and shall cease to accrue interest.
Section 2.09. Treasury Notes.
In determining whether the Holders of the required principal amount of
Notes have concurred in any direction, waiver or consent, Notes owned by the
Company, or by any Person directly or indirectly controlling or controlled by or
under direct or indirect common control with the Company, shall be considered as
though not outstanding, except that for the purposes of determining whether the
Trustee shall be protected in relying on any such direction, waiver or consent,
only Notes that the Trustee knows are so owned shall be so disregarded.
Section 2.10. Temporary Notes.
Until certificates representing Notes are ready for delivery, the Company
may prepare and the Trustee, upon receipt of an Authentication Order, shall
authenticate temporary Notes. Temporary Notes shall be substantially in the
form of certificated Notes but may have variations that the Company considers
appropriate for temporary Notes and as shall be reasonably acceptable to the
Trustee. Without unreasonable delay, the Company shall prepare and the Trustee
shall authenticate definitive Notes in exchange for temporary Notes.
Holders of temporary Notes shall be entitled to all of the benefits of
this Indenture.
Section 2.11. Cancellation.
The Company at any time may deliver Notes to the Trustee for cancellation.
The Registrar and Paying Agent shall forward to the Trustee any Notes
surrendered to them for registration of transfer, exchange or payment. The
Trustee and no one else shall cancel all Notes surrendered for registration of
transfer, exchange, payment, replacement or cancellation and shall destroy
canceled Notes (subject to the record retention requirement of the Exchange
Act). Certification of the destruction of all canceled Notes shall be delivered
to the Company. The Company may not issue new Notes to replace Notes that it
has paid or that have been delivered to the Trustee for cancellation.
Section 2.12. Defaulted Interest.
If the Company defaults in a payment of interest on the Notes, it shall
pay the defaulted interest in any lawful manner, plus, to the extent lawful,
interest payable on the defaulted interest, to the Persons who are Holders on a
subsequent special record date, in each case at the rate provided in the Notes
and in Section 4.01 hereof. The Company shall notify the Trustee in writing of
the amount of defaulted interest proposed to be paid on each Note and the date
of the proposed payment. The Company shall fix or cause to be fixed each such
special record date and payment date, provided that no such special record date
shall be less than 10 days prior to the related payment date for such defaulted
interest. At least 15 days before the special record date, the Company (or, upon
the written request of the Company, the Trustee in the name and at the expense
of the Company) shall mail or cause to be mailed to Holders a notice that states
the special record date, the related payment date and the amount of such
interest to be paid.
27
ARTICLE 3
REDEMPTION AND PREPAYMENT
Section 3.01. Notices to Trustee.
If the Company elects to redeem Notes pursuant to the optional redemption
provisions of Section 3.07 hereof, it shall furnish to the Trustee, at least 30
days but not more than 60 days before a redemption date, an Officers'
Certificate setting forth (1) the clause of this Indenture pursuant to which the
redemption shall occur, (2) the redemption date, (3) the principal amount of
Notes to be redeemed and (4) the redemption price (expressed as a percentage of
the principal amount).
Section 3.02. Selection of Notes to Be Redeemed.
If less than all of the Notes are to be redeemed or purchased in an offer
to purchase at any time, the Trustee shall select the Notes to be redeemed as
follows:
(1) if the Notes are listed on any national securities exchange, in
compliance with the requirements of the principal national securities exchange,
if any, on which the Notes are listed; or
(2) if the Notes are not listed on any national securities exchange, on a
pro rata basis, by lot or by such other method as the Trustee shall deem fair
and appropriate.
No Notes of $1,000 of principal amount or less will be redeemed in part.
Except as provided in the preceding sentence, provisions of this Indenture that
apply to Notes called for redemption also apply to portions of Notes called for
redemption. Notices of redemption will be mailed by first class mail at least
30 but not more than 60 days before the redemption date to each Holder of Notes
to be redeemed at its registered address. Notices of redemption may not be
conditional.
If any Note is to be redeemed in part only, the notice of redemption that
relates to such Note shall state the portion of the principal amount of that
Note to be redeemed. A new Note in principal amount equal to the unredeemed
portion of the original Note presented for redemption will be issued in the name
of the Holder thereof upon cancellation of the original Note. Notes called for
redemption become due on the date fixed for redemption. On and after the
redemption date, interest ceases to accrue or accrete on Notes or portions of
them called for redemption.
Section 3.03. Notice of Redemption.
Subject to the provisions of Section 3.09 hereof, at least 30 days but not
more than 60 days before a redemption date, the Company shall mail or cause to
be mailed, by first class mail, a notice of redemption to each Holder whose
Notes are to be redeemed at its registered address.
The notice shall identify the Notes to be redeemed and shall state:
(1) the redemption date;
(2) the redemption price;
28
(3) if any Note is being redeemed in part, the portion of the principal
amount of such Note to be redeemed and that, after the redemption date upon
surrender of such Note, a new Note or Notes in principal amount equal to the
unredeemed portion shall be issued upon cancellation of the original Note;
(4) the name and address of the Paying Agent;
(5) that Notes called for redemption must be surrendered to the Paying
Agent to collect the redemption price;
(6) that, unless the Company defaults in making such redemption payment,
interest on Notes called for redemption ceases to accrue on and after the
redemption date;
(7) the paragraph of the Notes and/or Section of this Indenture pursuant
to which the Notes called for redemption are being redeemed; and
(8) that no representation is made as to the correctness or accuracy of
the CUSIP number, if any, listed in such notice or printed on the Notes.
At the Company's request, the Trustee shall give the notice of redemption
in the Company's name and at its expense; provided, however, that the Company
shall have delivered to the Trustee, at least 45 days prior to the redemption
date, an Officers' Certificate requesting that the Trustee give such notice and
setting forth the information to be stated in such notice as provided in the
preceding paragraph.
Section 3.04. Effect of Notice of Redemption.
Once notice of redemption is mailed in accordance with Section 3.03
hereof, Notes called for redemption become irrevocably due and payable on the
redemption date at the redemption price. A notice of redemption may not be
conditional.
Section 3.05. Deposit of Redemption Price.
One Business Day prior to the redemption date, the Company shall deposit
with the Trustee or with the Paying Agent money sufficient to pay the redemption
price of and accrued interest on all Notes to be redeemed on that date. The
Trustee or the Paying Agent shall promptly return to the Company any money
deposited with the Trustee or the Paying Agent by the Company in excess of the
amounts necessary to pay the redemption price of, and accrued interest on, all
Notes to be redeemed.
If the Company complies with the provisions of the preceding paragraph, on
and after the redemption date, interest shall cease to accrue on the Notes or
the portions of Notes called for redemption. If a Note is redeemed on or after
an interest record date but on or prior to the related interest payment date,
then any accrued and unpaid interest shall be paid to the Person in whose name
such Note was registered at the close of business on such record date. If any
Note called for redemption shall not be so paid upon surrender for redemption
because of the failure of the Company to comply with the preceding paragraph,
interest shall be paid on the unpaid principal, from the redemption date until
such principal is paid, and, to the extent lawful, on any interest not paid on
such unpaid principal, in each case at the rate provided in the Notes and in
Section 4.01 hereof.
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Section 3.06. Notes Redeemed in Part.
Upon surrender of a Note that is redeemed in part, the Company shall issue
and, upon the Company's written request, the Trustee shall authenticate for the
Holder at the expense of the Company a new Note equal in principal amount to the
unredeemed portion of the Note surrendered.
Section 3.07. Optional Redemption.
(a) Except as provided in clause (b) of this Section 3.07, the Notes will
not be redeemable at the Company's option prior to May 15 , 2004. On or after
May 15, 2004, the Company may redeem all or a part of the Notes upon not less
than 30 nor more than 60 days' notice, at the redemption prices (expressed as
percentages of principal amount) set forth below plus accrued and unpaid
interest, if any, on the Notes redeemed to the applicable redemption date
(subject to the right of Holders of record on the relevant record date to
receive interest due on the relevant interest payment date), if redeemed during
the twelve-month period beginning on May 15 of the years indicated below:
Year Percentage
- ---- ----------
2004........................................................................... 104.5%
2005........................................................................... 103.0%
2006........................................................................... 101.5%
2007 and thereafter............................................................ 100.0%
(b) Notwithstanding the provisions of clause (a) of this Section 3.07, at
any time during the first 36 months after the date of the original issuance of
the Notes, the Company may on any one or more occasions redeem up to 35% of the
aggregate principal amount of the Notes originally issued at a redemption price
equal to 109.0% of the aggregate principal amount of the Notes to be redeemed on
the redemption date with the net cash proceeds of one or more Public Equity
Offerings and/or Strategic Equity Investments provided that:
(1) at least 65% of the aggregate principal amount of the Notes originally
issued remains outstanding immediately after the occurrence of such redemption
(excluding Notes held by the Company or any of its Subsidiaries); and
(2) the redemption occurs within 60 days of the date of the closing of
such Public Equity Offering or Strategic Equity Investment.
(c) Any redemption pursuant to this Section 3.07 shall be made pursuant to
the provisions of Section 3.01 through 3.06 hereof.
Section 3.08. Mandatory Redemption.
The Company shall not be required to make mandatory redemption or sinking
fund payments with respect to the Notes.
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Section 3.09. Offer to Purchase by Application of Excess Proceeds.
In the event that, pursuant to Section 4.10 hereof, the Company shall be
required to commence an offer to all Holders to purchase Notes (an "Asset Sale
Offer"), it shall follow the procedures specified below.
The Asset Sale Offer shall remain open for a period of 20 Business Days
following its commencement and no longer, except to the extent that a longer
period is required by applicable law (the "Offer Period"). No later than five
Business Days after the termination of the Offer Period (the "Purchase Date"),
the Company shall purchase the principal amount (or accreted value, as
applicable) of Notes and other senior Indebtedness of the Company required to be
purchased pursuant to Section 4.10 hereof (on a pro rata basis if Notes and
other senior Indebtedness of the Company tendered are in excess of the Excess
Proceeds) (which maximum amount shall be the "Offer Amount") or, if less than
the Offer Amount has been tendered, all Notes and other senior Indebtedness
tendered in response to the Asset Sale Offer. Payment for any Notes so
purchased shall be made in the same manner as interest payments are made.
If the Purchase Date is on or after an interest record date and on or
before the related interest payment date, any accrued and unpaid interest shall
be paid to the Person in whose name a Note is registered at the close of
business on such record date, and no additional interest shall be payable to
Holders who tender Notes pursuant to the Asset Sale Offer.
Upon the commencement of an Asset Sale Offer, the Company shall send, by
first class mail, a notice to the Trustee and each of the Holders, with a copy
to the Trustee. The notice shall contain all instructions and materials
necessary to enable such Holders to tender Notes pursuant to the Asset Sale
Offer. The Asset Sale Offer shall be made to all Holders. The notice, which
shall govern the terms of the Asset Sale Offer, shall state:
(a) that the Asset Sale Offer is being made pursuant to this Section 3.09
and Section 4.10 hereof and the length of time the Asset Sale Offer shall remain
open;
(b) the Offer Amount, the purchase price and the Purchase Date;
(c) that any Note not tendered or accepted for payment shall continue to
accrete or accrue interest;
(d) that, unless the Company defaults in making such payment, any Note
accepted for payment pursuant to the Asset Sale Offer shall cease to accrete or
accrue interest after the Purchase Date;
(e) that Holders electing to have a Note purchased pursuant to an Asset
Sale Offer may elect to have Notes purchased in integral multiples of $1,000
only;
(f) that Holders electing to have a Note purchased pursuant to any Asset
Sale Offer shall be required to surrender the Note, with the form entitled
"Option of Holder to Elect Purchase" on the reverse of the Note completed, or
transfer by book-entry transfer, to the Company, a depositary, if appointed by
the Company, or a Paying Agent at the address specified in the notice at least
three days before the Purchase Date;
31
(g) that Holders shall be entitled to withdraw their election if the
Company, the depositary or the Paying Agent, as the case may be, receives, not
later than the expiration of the Offer Period, a telegram, telex, facsimile
transmission or letter setting forth the name of the Holder, the principal
amount of the Note the Holder delivered for purchase and a statement that such
Holder is withdrawing his election to have such Note purchased;
(h) that, if the aggregate principal amount (or accreted value, as
applicable) of Notes and other senior Indebtedness of the Company surrendered by
Holders exceeds the Offer Amount, the Company shall select the Notes to be
purchased on a pro rata basis (with such adjustments as may be deemed
appropriate by the Company so that only Notes in denominations of $1,000, or
integral multiples thereof, shall be purchased); and
(i) that Holders whose Notes were purchased only in part shall be issued
new Notes equal in principal amount to the unpurchased portion of the Notes
surrendered (or transferred by book-entry transfer).
On or before the Purchase Date, the Company shall, to the extent lawful,
accept for payment, on a pro rata basis to the extent necessary, the Offer
Amount of Notes or portions thereof tendered pursuant to the Asset Sale Offer,
or if less than the Offer Amount has been tendered, all Notes and other senior
Indebtedness tendered, and shall deliver to the Trustee an Officers' Certificate
stating that such Notes or portions thereof were accepted for payment by the
Company in accordance with the terms of this Section 3.09. The Company, the
Depositary or the Paying Agent, as the case may be, shall promptly (but in any
case not later than five days after the Purchase Date) mail or deliver to each
tendering Holder an amount equal to the purchase price of the Notes tendered by
such Holder and accepted by the Company for purchase, and the Company shall
promptly issue a new Note, and the Trustee, upon written request from the
Company shall authenticate and mail or deliver such new Note to such Holder, in
a principal amount equal to any unpurchased portion of the Note surrendered.
Any Note not so accepted shall be promptly mailed or delivered by the Company to
the Holder thereof. The Company shall publicly announce the results of the
Asset Sale Offer on the Purchase Date.
Other than as specifically provided in this Section 3.09, any purchase
pursuant to this Section 3.09 shall be made pursuant to the provisions of
Sections 3.01 through 3.06 hereof.
ARTICLE 4
COVENANTS
Section 4.01. Payment of Notes.
The Company shall pay or cause to be paid the principal of, premium, if
any, and interest on the Notes on the dates and in the manner provided in the
Notes. Principal, premium, if any, and interest shall be considered paid on the
date due if the Paying Agent, if other than the Company or a Subsidiary thereof,
holds as of 10:00 a.m. Eastern Time on the due date money deposited by the
Company in immediately available funds and designated for and sufficient to pay
all principal, premium, if any, and interest then due.
The Company shall pay interest (including post-petition interest in any
proceeding under any Bankruptcy Law) on overdue principal at the rate equal to
1% per annum in excess of the then applicable
32
interest rate on the Notes to the extent lawful; it shall pay interest
(including post-petition interest in any proceeding under any Bankruptcy Law) on
overdue installments of interest (without regard to any applicable grace period)
at the same rate to the extent lawful.
Section 4.02. Maintenance of Office or Agency.
The Company shall maintain in the Borough of Manhattan, the City of New
York, an office or agency (which may be an office of the Trustee or an affiliate
of the Trustee, Registrar or co-registrar) where Notes may be surrendered for
registration of transfer or for exchange and where notices and demands to or
upon the Company in respect of the Notes 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 Corporate Trust Office of the
Trustee.
The Company may also from time to time designate one or more other offices
or agencies where the Notes may be presented or surrendered for any or all such
purposes and may from time to time rescind such designations; provided, however,
that no such designation or rescission shall in any 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 designates the Corporate Trust Office of the Trustee as
one such office or agency of the Company in accordance with Section 2.03 hereof.
Section 4.03. Reports.
Whether or not required by the SEC, so long as any Notes are outstanding,
the Company shall furnish to the Holders of Notes:
(1) all quarterly and annual financial information that would be
required to be contained in a filing with the SEC on Forms 10-Q and 10-K if
the Company were required to file such Forms, including a ''Management's
Discussion and Analysis of Financial Condition and Results of Operations''
that describes the financial condition and results of operations of the
Company and its consolidated Subsidiaries (showing in reasonable detail, in
the footnotes to the financial statements and in the ''Management's
Discussion and Analysis of Financial Condition and Results of Operations''
(in each case to the extent not prohibited by the SEC's rules and
regulations):
(a) the financial condition and results of operations of the
Company and its Restricted Subsidiaries separate from the financial
condition and results of operations of the Unrestricted Subsidiaries
of the Company; and
(b) the Tower Cash Flow for the most recently completed fiscal
quarter and the Adjusted Consolidated Cash Flow for the most recently
completed four-quarter period) and, with respect to the annual
information only, a report thereon by the Company's certified
independent accountants; and
33
(2) all current reports that would be required to be filed with the
SEC on Form 8-K if the Company were required to file such reports, in each
case within the time periods specified in the Company's rules and
regulations.
In addition, whether or not required by the rules and regulations of the
SEC, the Company shall file a copy of all such information and reports with the
SEC for public availability within the time periods specified in the SEC's rules
and regulations (unless the SEC will not accept such a filing) and make such
information available to securities analysts and prospective investors upon
request. The Company shall at all times comply with TIA (S) 314(a).
Section 4.04. Compliance Certificate.
(1) The Company shall deliver to the Trustee, within 90 days after the
end of each fiscal year, an Officers' Certificate stating that a review of
the activities of the Company and 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 its obligations under this Indenture, and further
stating, as to each such Officer signing such certificate, that to the best
of his or her knowledge the Company has kept, observed, performed and
fulfilled each and every covenant contained in this Indenture and is not in
default in the performance or observance of any of the terms, provisions
and conditions of this Indenture (or, if a Default or Event of Default
shall have occurred, describing all such Defaults or Events of Default of
which he or she may have knowledge and what action the Company is taking or
proposes to take with respect thereto) and that to the best of his or her
knowledge no event has occurred and remains in existence by reason of which
payments on account of the principal of or interest, if any, on the Notes
is prohibited or if such event has occurred, a description of the event and
what action the Company is taking or proposes to take with respect thereto.
(2) So long as not contrary to the then current recommendations of the
American Institute of Certified Public Accountants, the year-end financial
statements delivered pursuant to Section 4.03(a) above shall be accompanied
by a written statement of the Company's independent public accountants (who
shall be a firm of established national reputation) that in making the
examination necessary for certification of such financial statements,
nothing has come to their attention that would lead them to believe that
the Company has violated any provisions of Article 4 or Article 5 hereof
or, if any such violation has occurred, specifying the nature and period of
existence thereof, it being understood that such accountants shall not be
liable directly or indirectly to any Person for any failure to obtain
knowledge of any such violation.
(3) The Company shall, so long as any of the Notes are outstanding,
deliver to the Trustee, forthwith upon any Officer becoming aware of any
Default or Event of Default, an Officers' Certificate specifying such
Default or Event of Default and what action the Company is taking or
proposes to take with respect thereto.
Section 4.05. Taxes.
The Company shall pay, and shall cause each of its Subsidiaries to pay,
prior to delinquency, all material taxes, assessments, and governmental levies
except such as are contested in good faith and by
34
appropriate proceedings or where the failure to effect such payment is not
adverse in any material respect to the Holders of the Notes.
Section 4.06. Stay, Extension and Usury Laws.
The Company covenants (to the extent that it may lawfully do so) that it
shall not at any time insist upon, plead, or in any manner whatsoever claim or
take the benefit or advantage of, any stay, extension or usury law wherever
enacted, now or at any time hereafter in force, that may affect the covenants or
the performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such
law, and covenants that it shall not, by resort to any such law, hinder, delay
or impede the execution of any power herein granted to the Trustee, but shall
suffer and permit the execution of every such power as though no such law has
been enacted.
Section 4.07. Restricted Payments.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly:
(1) declare or pay any dividend or make any other payment or
distribution on account of the Company's or any of its Restricted
Subsidiaries' Equity Interests (including, without limitation, any payment
in connection with any merger or consolidation involving the Company or any
of its Restricted Subsidiaries) or to the direct or indirect holders of the
Company's or any of its Restricted Subsidiaries' Equity Interests in their
capacity as such (other than dividends or distributions payable in Equity
Interests (other than Disqualified Stock) of the Company or to the Company
or a Restricted Subsidiary of the Company);
(2) purchase, redeem or otherwise acquire or retire for value
(including without limitation, in connection with any merger or
consolidation involving the Company) any Equity Interests of the Company or
any direct or indirect parent of the Company (other than any such Equity
Interests owned by the Company or any of its Restricted Subsidiaries);
(3) make any payment on or with respect to, or purchase, redeem,
defease or otherwise acquire or retire for value any Indebtedness that is
subordinated to the Notes, except a payment of interest or principal at
Stated Maturity; or
(4) make any Restricted Investment, (all such payments and other
actions set forth in these clauses (1) through (4) above being collectively
referred to as ''Restricted Payments''),
unless, at the time of and after giving effect to such Restricted Payment:
(1) no Default has occurred and is continuing or would occur as a
consequence of the Restricted Payment; and
(2) the Company would have been permitted to incur at least $1.00 of
additional Indebtedness pursuant to the Debt to Adjusted Consolidated Cash
Flow Ratio test set forth in the first paragraph of Section 4.09 hereof;
provided that the Company and its Restricted Subsidiaries shall not be
required to comply with this clause (2) in order to make any Restricted
Investment; and
35
(3) such Restricted Payment, together with the aggregate amount of all
other Restricted Payments made by the Company and its Restricted
Subsidiaries after the date hereof (excluding Restricted Payments permitted
by clauses (2), (3) and (4) of the paragraph of exceptions below), is less
than the sum, without duplication, of:
(a) 100% of the Consolidated Cash Flow of the Company for the
period (taken as one accounting period) from the beginning of the
fiscal quarter during which this Indenture is executed to the end of
the Company's most recently ended fiscal quarter for which internal
financial statements are available at the time of such Restricted
Payment (or, if the Consolidated Cash Flow for such period is a
deficit, less 100% of the deficit), less 1.75 times the Consolidated
Interest Expense of the Company since the beginning of the fiscal
quarter during which this Indenture is executed; plus
(b) 100% of the aggregate net cash proceeds received by the
Company since the beginning of the fiscal quarter during which this
Indenture is executed as a contribution to its common equity capital
or from the issue or sale of Equity Interests of the Company (other
than Disqualified Stock and except to the extent such net cash
proceeds are used to incur new Indebtedness outstanding pursuant to
clause (11) of the second paragraph of Section 4.09 hereof) or from
the issue or sale of Disqualified Stock or debt securities of the
Company that have been converted into Equity Interests (other than
Equity Interests (or Disqualified Stock or convertible debt
securities) sold to a Subsidiary of the Company and other than
Disqualified Stock or convertible debt securities that have been
converted into Disqualified Stock); plus
(c) to the extent that any Restricted Investment that was made
after the date hereof is sold for cash or otherwise liquidated or
repaid for cash, the lesser of:
(A) the cash return of capital with respect to the
Restricted Investment (less the cost of disposition, if any), and
(B) the initial amount of the Restricted Investment; plus
(d) to the extent that any Unrestricted Subsidiary of the Company
and all of its Subsidiaries are designated as Restricted Subsidiaries
after the date hereof, the lesser of:
(A) the fair market value of the Company's Investments in
such Subsidiaries as of the date of such designation; or
(B) the sum of:
(x) the fair market value of the Company's Investments
in such Subsidiaries as of the date on which such
Subsidiaries were originally designated as Unrestricted
Subsidiaries, and
(y) the amount of any Investments made in such
Subsidiaries subsequent to such designation (and treated as
Restricted Payments) by the Company or any Restricted
Subsidiary;
36
provided that:
(i) in the event the Unrestricted Subsidiaries designated as
Restricted Subsidiaries are CTSH and its Subsidiaries, the
references in clauses (A) and (B) of this clause (d) to fair
market value of the Company's Investments in such Subsidiaries
shall mean the amount by which the fair market value of all such
Investments exceeds 34.3% of the fair market value of CTSH and
its Subsidiaries as a whole; and
(ii) in the event the Unrestricted Subsidiaries designated
as Restricted Subsidiaries are CCAIC and its Subsidiaries, the
references in clauses (A) and (B) of this clause (d) to fair
market value of the Company's Investments in such Subsidiaries
shall mean the amount by which the fair market value of all such
Investments exceeds $250.0 million; plus
(e) 50% of any dividends received by the Company or a Restricted
Subsidiary after the date hereof from an Unrestricted Subsidiary of
the Company, to the extent that such dividends were not otherwise
included in Consolidated Net Income of the Company for such period.
The preceding provisions shall not prohibit:
(1) the payment of any dividend within 60 days after the date of
declaration of that dividend, if at said date of declaration such payment
would have complied with the provisions of this Indenture;
(2) the making of any Investment or the redemption, repurchase,
retirement, defeasance or other acquisition of any subordinated
Indebtedness or Equity Interests of the Company in exchange for, or out of
the net cash proceeds from the sale since the beginning of the fiscal
quarter during which this Indenture is executed (other than to a Subsidiary
of the Company) of Equity Interests of the Company (other than any
Disqualified Stock); provided that the net cash proceeds are not used to
incur new Indebtedness pursuant to clause (11) of the second paragraph of
Section 4.09 hereof); and provided further that, in each case, the amount
of any net cash proceeds that are so utilized will be excluded from clause
(3)(b) of the preceding paragraph;
(3) the defeasance, redemption, repurchase or other acquisition of
subordinated Indebtedness with the net cash proceeds from an incurrence of
Permitted Refinancing Indebtedness;
(4) the payment of any dividend by a Restricted Subsidiary of the
Company to the holders of its Equity Interests on a pro rata basis;
(5) the repurchase, redemption or other acquisition or retirement for
value of any Equity Interests of the Company or any Restricted Subsidiary
of the Company held by any member of the Company's (or any of its
Restricted Subsidiaries') management pursuant to any management equity
subscription agreement or stock option agreement in effect as of the date
hereof; provided that the aggregate price paid for all of the repurchased,
redeemed, acquired or retired Equity
37
Interests may not exceed (a) $500,000 in any twelve-month period and (b)
$5.0 million in the aggregate; or
(6) the payment of scheduled dividends on the Company's 12-3/4% Senior
Exchangeable Preferred Stock due 2010, whether paid in cash or in kind
through the issuance of additional shares of such preferred stock, all in
accordance with the certificate of designations governing such preferred
stock as in effect on the date hereof.
The Board of Directors may designate any Restricted Subsidiary to be an
Unrestricted Subsidiary if such designation would not cause a Default. For
purposes of making such determination, all outstanding Investments by the
Company and its Restricted Subsidiaries (except to the extent repaid in cash) in
the Subsidiary so designated will be deemed to be Restricted Payments at the
time of the designation and will reduce the amount available for Restricted
Payments under the first paragraph in this Section 4.07. All of those
outstanding Investments will be deemed to constitute Investments in an amount
equal to the fair market value of the Investments at the time of such
designation. Such designation will only be permitted if the Restricted Payment
would be permitted at the time and if the Restricted Subsidiary otherwise meets
the definition of an Unrestricted Subsidiary. The Board of Directors may
designate any Unrestricted Subsidiary to be a Restricted Subsidiary if the
designation would not cause a Default.
The amount of all Restricted Payments (other than cash) will be the fair
market value on the date of the Restricted Payment of the assets or securities
proposed to be transferred or issued by the Company or the applicable Restricted
Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair
market value of any property, assets or Investments required by this covenant to
be valued will be valued by the Board of Directors whose resolution with respect
to the determination will be delivered to the Trustee.
Section 4.08. Dividend and Other Payment Restrictions Affecting Subsidiaries.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to
exist or become effective any encumbrance or restriction on the ability of any
Restricted Subsidiary to:
(1) pay dividends or make any other distributions to the Company or
any of its Restricted Subsidiaries on its Capital Stock or with respect to
any other interest or participation in, or measured by, its profits;
(2) pay any indebtedness owed to the Company or any of its Restricted
Subsidiaries;
(3) make loans or advances to the Company or any of its Restricted
Subsidiaries; or
(4) transfer any of its properties or assets to the Company or any of
its Restricted Subsidiaries.
The preceding restrictions shall not apply to encumbrances or restrictions
existing under or by reason of:
38
(1) Existing Indebtedness as in effect on the date hereof, and any
amendments, modifications, restatements, renewals, increases, supplements,
refundings, replacements or refinancings thereof; provided that such
amendments, modifications, restatements, renewals, increases, supplements,
refundings, replacements or refinancings are no more restrictive, taken as
a whole, with respect to such dividend and other payment restrictions than
those contained in the applicable series of Existing Indebtedness as in
effect on the date hereof;
(2) Indebtedness of any Restricted Subsidiary under any Credit
Facility that is permitted to be incurred pursuant to Section 4.09 hereof;
provided that such Credit Facility and Indebtedness contain only such
encumbrances and restrictions on such Restricted Subsidiary's ability to
engage in the activities set forth in clauses (1) through (4) of the
preceding paragraph as are, at the time such Credit Facility is entered
into or amended, modified, restated, renewed, increased, supplemented,
refunded, replaced or refinanced, ordinary and customary for a Credit
Facility of that type as determined in the good faith judgment of the Board
of Directors (and evidenced in a board resolution), which determination
shall be conclusively binding;
(3) encumbrances and restrictions applicable to any Unrestricted
Subsidiary, as the same are in effect as of the date on which the
Subsidiary becomes a Restricted Subsidiary, and as the same may be amended,
modified, restated, renewed, increased, supplemented, refunded, replaced or
refinanced; provided that such amendments, modifications, restatements,
renewals, increases, supplements, refundings, replacement or refinancings
are no more restrictive, taken as a whole, with respect to the dividend and
other payment restrictions than those contained in the applicable series of
Indebtedness of such Subsidiary as in effect on the date on which such
Subsidiary becomes a Restricted Subsidiary;
(4) any Indebtedness incurred in compliance with Section 4.09 hereof
or any agreement pursuant to which such Indebtedness is issued if the
encumbrance or restriction applies only in the event of a payment default
or default with respect to a financial covenant contained in the
Indebtedness or agreement and the encumbrance or restriction is not
materially more disadvantageous to the Holders of the Notes than is
customary in comparable financings (as determined by the Company) and the
Company determines that any such encumbrance or restriction will not
materially affect the Company's ability to pay interest or principal on the
Notes;
(5) this Indenture;
(6) applicable law;
(7) any instrument governing Indebtedness or Capital Stock of a Person
acquired by the Company or any of its Restricted Subsidiaries as in effect
at the time that Person is acquired by the Company (except to the extent
the Indebtedness was incurred in connection with or in contemplation of the
acquisition), which encumbrance or restriction is not applicable to any
Person, or the properties or assets of any Person, other than the Person,
or the property or assets of the Person, so acquired, provided that, in the
case of Indebtedness, the Indebtedness was permitted by the terms hereof to
be incurred;
(8) customary non-assignment provisions in leases or licenses entered
into in the ordinary course of business;
39
(9) purchase money obligations for property acquired in the ordinary
course of business that impose restrictions of the nature described in
clause (5) in the second paragraph of Section 4.09 hereof on the property
so acquired;
(10) the provisions of agreements governing Indebtedness incurred
pursuant to clause (4) of the second paragraph of Section 4.09 hereof;
(11) any agreement for the sale of a Restricted Subsidiary that
restricts that Restricted Subsidiary pending its sale;
(12) Permitted Refinancing Indebtedness, provided that the
restrictions contained in the agreements governing the Permitted
Refinancing Indebtedness are no more restrictive, taken as a whole, than
those contained in the agreements governing the Indebtedness being
refinanced;
(13) Liens permitted to be incurred pursuant to the provisions of
Section 4.12 hereof that limit the right of the debtor to transfer the
assets subject to such Liens;
(14) provisions with respect to the disposition or distribution of
assets or property in joint venture agreements and other similar
agreements; and
(15) restrictions on cash or other deposits or net worth imposed by
customers under contracts entered into in the ordinary course of business.
Section 4.09. Incurrence of Indebtedness and Issuance of Preferred Stock.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, create, incur, issue, assume, guarantee
or otherwise become directly or indirectly liable, contingently or otherwise,
with respect to (collectively, ''incur'') any Indebtedness (including Acquired
Debt) and that the Company will not issue any Disqualified Stock and will not
permit any of its Restricted Subsidiaries to issue any shares of preferred
stock; provided that the Company may incur Indebtedness (including Acquired
Debt) or issue shares of Disqualified Stock and the Company's Restricted
Subsidiaries may incur Indebtedness (including Acquired Debt) or issue preferred
stock if, in each case, the Company's Debt to Adjusted Consolidated Cash Flow
Ratio at the time of incurrence of the Indebtedness or the issuance of the
preferred stock, after giving pro forma effect to such incurrence or issuance as
of such date and to the use of proceeds from such incurrence or issuance as if
the same had occurred at the beginning of the most recently ended four full
fiscal quarter period of the Company for which internal financial statements are
available, would have been no greater than 7.5 to 1.
The provisions of the first paragraph of this Section 4.09 shall not
prohibit the incurrence of any of the following items of Indebtedness or to the
issuance of any of the following items of Disqualified Stock or preferred stock
(collectively, ''Permitted Debt''):
(1) the incurrence by the Company or any of its Restricted
Subsidiaries of Indebtedness under Credit Facilities in an aggregate
principal amount (with letters of credit being deemed to have a principal
amount equal to the maximum potential liability of the Company and its
Restricted Subsidiaries thereunder) at any one time outstanding not to
exceed the product of $150,000 times the number of Completed Towers on the
date of such incurrence;
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(2) the incurrence by the Company and its Restricted Subsidiaries of
the Existing Indebtedness;
(3) the incurrence by the Company of the Indebtedness represented by
the Notes and the Discount Notes, each issued on the date hereof;
(4) the issuance by the Company of additional shares of its 12 3/4%
Senior Exchangeable Preferred Stock due 2010 solely for the purpose of
paying dividends thereon and the incurrence by the Company of Indebtedness
represented by the Company's 12 3/4% Senior Subordinated Exchange
Debentures due 2010;
(5) the incurrence by the Company or any of its Restricted
Subsidiaries of Indebtedness represented by Capital Lease Obligations,
mortgage financings or purchase money obligations, in each case incurred
for the purpose of financing all or any part of the purchase price or cost
of construction or improvement of property, plant or equipment used in the
business of the Company or such Restricted Subsidiary, in an aggregate
principal amount, including all Permitted Refinancing Indebtedness incurred
to refund, refinance or replace any other Indebtedness incurred pursuant to
this clause (5), not to exceed $10.0 million at any one time outstanding;
(6) the incurrence by the Company or any of its Restricted
Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the
net proceeds of which are used to extend, refinance, renew, replace,
defease or refund Indebtedness of the Company or any of its Restricted
Subsidiaries or Disqualified Stock of the Company (other than intercompany
Indebtedness) that was permitted by this Indenture to be incurred under the
first paragraph of this Section 4.09 or clauses (2), (3), (4), (5) or this
clause (6) of this paragraph;
(7) the incurrence by the Company or any of its Restricted
Subsidiaries of intercompany Indebtedness between or among the Company and
any of its Restricted Subsidiaries; provided, however, that:
(i) if the Company is the obligor on such Indebtedness, such
Indebtedness is expressly subordinated to the prior payment in full in
cash of all Obligations with respect to the Notes of such series and
that:
(ii)(A) any subsequent issuance or transfer of Equity Interests
that results in any such Indebtedness being held by a Person other
than the Company or a Restricted Subsidiary, and
(B) any sale or other transfer of any such Indebtedness to a
Person that is not either the Company or a Restricted Subsidiary shall
be deemed, in each case, to constitute an incurrence of the
Indebtedness by the Company or the Restricted Subsidiary, as the case
may be;
(8) the incurrence by the Company or any of its Restricted
Subsidiaries of Hedging Obligations that are incurred for the purpose of
fixing or hedging interest rate risk with respect to any floating rate
Indebtedness that is permitted by the terms of this Indenture to be
outstanding or currency exchange risk;
41
(9) the guarantee by the Company or any of its Restricted
Subsidiaries of Indebtedness of the Company or a Restricted Subsidiary of
the Company that was permitted to be incurred by another provision of this
Indenture;
(10) the incurrence by the Company or any of its Restricted
Subsidiaries of Acquired Debt in connection with the acquisition of assets
or a new Subsidiary and the incurrence by the Company's Restricted
Subsidiaries of Indebtedness as a result of the designation of an
Unrestricted Subsidiary as a Restricted Subsidiary; provided that, in the
case of any such incurrence of Acquired Debt, such Acquired Debt was
incurred by the prior owner of such assets or such Restricted Subsidiary
prior to such acquisition by the Company or one of its Restricted
Subsidiaries and was not incurred in connection with, or in contemplation
of, the acquisition by the Company or one of its Restricted Subsidiaries;
and provided further that, in the case of any incurrence pursuant to this
clause (10), as a result of such acquisition by the Company or one of its
Restricted Subsidiaries, the Company's Debt to Adjusted Consolidated Cash
Flow Ratio at the time of incurrence of such Acquired Debt, after giving
pro forma effect to such incurrence as if the same had occurred at the
beginning of the most recently ended four full fiscal quarter period of the
Company for which internal financial statements are available, would have
been less than the Company's Debt to Adjusted Consolidated Cash Flow Ratio
for the same period without giving pro forma effect to such incurrence;
(11) the incurrence by the Company or any of its Restricted
Subsidiaries of Indebtedness or Disqualified Stock not to exceed, at any
one time outstanding, the sum of:
(i) 2.0 times the aggregate net cash proceeds, plus
(ii) 1.0 times the fair market value of non-cash proceeds
(evidenced by a resolution of the Board of Directors set forth in an
Officers' Certificate delivered to the Trustee),
in each case, from the issuance and sale, other than to a Subsidiary, of
Equity Interests (other than Disqualified Stock) of the Company since the
beginning of the fiscal quarter during which this Indenture is executed
(less the amount of such proceeds used to make Restricted Payments as
provided in clause (3)(b) of the first paragraph or clause (2) of the
second paragraph of Section 4.07 hereof); and
(12) the incurrence by the Company or any of its Restricted
Subsidiaries of additional Indebtedness and/or the issuance by the Company
of Disqualified Stock in an aggregate principal amount, accreted value or
liquidation preference, as applicable, at any time outstanding, not to
exceed $25.0 million.
In addition, the Company shall not:
(1) incur any Indebtedness that is contractually subordinated in right
of payment to any other Indebtedness of the Company unless such
Indebtedness is also contractually subordinated in right of payment to the
Notes on substantially identical terms; provided, however, that no
Indebtedness of the Company will be deemed to be contractually subordinated
in right of payment to any other Indebtedness of the Company solely by
virtue of being unsecured; and
42
(2) permit any of its Unrestricted Subsidiaries to incur any
Indebtedness other than Non-Recourse Debt.
For purposes of determining compliance with this Section 4.09, in the event
that an item of Indebtedness meets the criteria of more than one of the
categories of Permitted Debt described in clauses (1) through (12) above or is
entitled to be incurred pursuant to the first paragraph of this Section 4.09,
the Company shall, in its sole discretion, classify (or later reclassify in
whole or in part) such item of Indebtedness in any manner that complies with
this Section 4.09. Accrual of interest, accretion or amortization of original
issue discount and the payment of interest in the form of additional
Indebtedness shall not be deemed to be an incurrence of Indebtedness for
purposes of this Section 4.09. Indebtedness under Credit Facilities outstanding
on the date hereof shall be deemed to have been incurred on such date in
reliance on the exception provided by clause (1) of the definition of Permitted
Debt.
Section 4.10. Asset Sales.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, consummate an Asset Sale unless:
(1) the Company (or the Restricted Subsidiary, as the case may be) receives
consideration at the time of the Asset Sale at least equal to the fair market
value of the assets or Equity Interests issued or sold or otherwise disposed
of;
(2) fair market value is determined by the Board of Directors and evidenced
by a resolution of the Board of Directors set forth in an Officers'
Certificate delivered to the Trustee; and
(3) except in the case of a Tower Asset Exchange, at least 75% of the
consideration received in such Asset Sale by the Company or such Restricted
Subsidiary is in the form of cash or Cash Equivalents.
For purposes of this provision, each of the following shall be deemed to be
cash:
(a) any liabilities, as shown on the Company's or such Restricted
Subsidiary's most recent balance sheet, of the Company's or any Restricted
Subsidiary (other than contingent liabilities and liabilities that are by
their terms subordinated to the Notes or any guarantee of the Notes) that
are assumed by the transferee of any assets pursuant to a customary
novation agreement that releases the Company or the Restricted Subsidiary
from further liability; and
(b) any securities, notes or other obligations received by the Company
or any Restricted Subsidiary from the transferee that are converted by the
Company or the Restricted Subsidiary into cash within 20 days of the
applicable Asset Sale, to the extent of the cash received in that
conversion.
Within 365 days after the receipt of any Net Proceeds from an Asset Sale, the
Company or the Restricted Subsidiary may apply those Net Proceeds to:
(1) reduce Indebtedness under a Credit Facility;
(2) reduce other Indebtedness of any of the Restricted Subsidiaries;
(3) the acquisition of all or substantially all the assets of a Permitted
Business;
43
(4) the acquisition of Voting Stock of a Permitted Business from a Person
that is not a Subsidiary of the Company; provided that, after giving effect to
the acquisition, the Company or its Restricted Subsidiary owns a majority of
the Voting Stock of that business; or
(5) the making of a capital expenditure or the acquisition of other long-
term assets that are used or useful in a Permitted Business.
Pending the final application of any Net Proceeds, the Company may temporarily
reduce revolving credit borrowings or otherwise invest the Net Proceeds in any
manner that is not prohibited by this Indenture.
Any Net Proceeds from Asset Sales that are not applied or invested as provided
in the preceding paragraph shall be deemed to constitute "Excess Proceeds". When
the aggregate amount of Excess Proceeds exceeds $10.0 million, the Company shall
make an Asset Sale Offer to all Holders of Notes, and all holders of other
senior Indebtedness of the Company containing provisions similar to those set
forth in this Indenture with respect to offers to purchase or redeem with the
proceeds of sales of assets, to purchase the maximum principal amount (or
accreted value, as applicable) of Notes and such other senior Indebtedness of
the Company that may be purchased out of the Excess Proceeds. The offer price in
any Asset Sale Offer will be payable in cash and will be 100% of the principal
amount of the Notes, plus accrued and unpaid interest to the date of purchase,
if any. In the case of any other senior Indebtedness, the offer price shall be
100% of the principal amount (or accreted value, as applicable) of the
Indebtedness plus accrued and unpaid interest thereon, if any, to the date of
purchase. Each Asset Sale Offer shall be made in accordance with the procedures
set forth herein and the other senior Indebtedness of the Company. If any Excess
Proceeds remain after consummation of an Asset Sale Offer, the Company may use
the remaining Excess Proceeds for any purpose not otherwise prohibited by this
Indenture. If the aggregate principal amount of Notes and the other senior
Indebtedness of the Company tendered into the Asset Sale Offer exceeds the
amount of Excess Proceeds, the Trustee shall select the Notes and such other
senior Indebtedness to be purchased on a pro rata basis. Upon completion of the
Asset Sale Offer, the amount of Excess Proceeds shall be reset at zero.
Section 4.11. Transactions with Affiliates.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, make any payment to, or sell, lease, transfer or otherwise
dispose of any of its properties or assets to, or purchase any property or
assets from, or enter into or make or amend any transaction, contract,
agreement, understanding, loan, advance or guarantee with, or for the benefit
of, any Affiliate (each of the foregoing, an ''Affiliate Transaction''), unless:
(1) such Affiliate Transaction is on terms that are no less favorable
to the Company or the relevant Restricted Subsidiary than those that would
have been obtained in a comparable transaction by the Company or such
Restricted Subsidiary with an unrelated Person; and
(2) the Company delivers to the Trustee:
(a) with respect to any Affiliate Transaction or series of
related Affiliate Transactions involving aggregate consideration in
excess of $1.0 million, a resolution of the Board of Directors set
forth in an Officers' Certificate certifying that the Affiliate
Transaction complies with clause (1) above and that the Affiliate
Transaction has been approved by a majority of the disinterested
members of the Board of Directors; and
44
(b) with respect to any Affiliate Transaction or series of
related Affiliate Transactions involving aggregate consideration in
excess of $10.0 million, an opinion to the Holders of the Notes as to
the fairness of the Affiliate Transaction from a financial point of
view issued by an accounting, appraisal or investment banking firm of
national standing.
Notwithstanding the foregoing, the following items shall not be deemed
Affiliate Transactions:
(1) any employment arrangements with any executive officer of the
Company or a Restricted Subsidiary that is entered into by the Company or
any of its Restricted Subsidiaries in the ordinary course of business and
consistent with compensation arrangements of similarly situated executive
officers at comparable companies engaged in Permitted Businesses;
(2) transactions between or among the Company and/or its Restricted
Subsidiaries;
(3) payment of directors fees in an aggregate annual amount not to
exceed $25,000 per Person;
(4) Restricted Payments that are permitted under Section 4.07 hereof;
(5) the issuance or sale of Equity Interests (other than Disqualified
Stock) of the Company; and
(6) transactions pursuant to the provisions of the Governance
Agreement, the Rights Agreement, the Stockholders' Agreement, the CTSH
Shareholders' Agreement, the CTI Services Agreement, the CTI Operating
Agreement and the Crown Transition Agreements, as the same are in effect on
the date hereof.
Section 4.12. Liens.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, create, incur, assume or suffer to
exist any Lien securing Indebtedness or trade payables on any asset now owned or
hereafter acquired, or any income or profits therefrom or assign or convey any
right to receive income therefrom, except Permitted Liens.
Section 4.13. Business Activities.
The Company shall not, and shall not permit any Subsidiary to, engage in
any business other than Permitted Businesses, except to the extent as would not
be material to the Company and its Subsidiaries taken as a whole.
Section 4.14. Corporate Existence.
Subject to Article 5 hereof, the Company shall do or cause to be done all
things necessary to preserve and keep in full force and effect:
45
(1) its corporate existence, and the corporate, partnership or other
existence of each of its Subsidiaries, in accordance with the respective
organizational documents (as the same may be amended from time to time) of
the Company or any such Subsidiary and
(2) the rights (charter and statutory), licenses and franchises of the
Company and its Subsidiaries; provided, however, that the Company shall not
be required to preserve any such right, license or franchise, or the
corporate, partnership or other existence of any of its Subsidiaries, if
the Board of Directors shall determine that the preservation thereof is no
longer desirable in the conduct of the business of the Company and its
Subsidiaries, taken as a whole, and that the loss thereof is not adverse in
any material respect to the Holders of the Notes.
Section 4.15. Offer to Repurchase Upon Change of Control.
If a Change of Control occurs, the Company shall make an offer (a "Change
of Control Offer") to each Holder to repurchase all or any part (equal to $1,000
or an integral multiple thereof) of each Holder's Notes at a purchase price, in
cash, equal to 101% of the aggregate principal amount of the Notes repurchased,
plus accrued and unpaid interest thereon, if any, (subject to the right of
Holders of record on the relevant record date to receive interest due on the
relevant interest payment date), to the date of purchase (the "Change of Control
Payment"). Within 30 days following any Change of Control, the Company shall
mail a notice to each Holder describing the transaction or transactions that
constitute a change of control and stating:
(1) that the Change of Control Offer is being made pursuant to this
covenant and that all Notes tendered will be accepted for payment;
(2) the purchase price and the purchase date, which shall be no
earlier than 30 days and no later than 60 days from the date such notice is
mailed (the "Change of Control Payment Date");
(3) that any Note not tendered will continue to accrue interest;
(4) that, unless the Company defaults in the payment of the Change of
Control Payment, all Notes accepted for payment pursuant to the Change of
Control Offer shall cease to accrue interest after the Change of Control
Payment Date;
(5) that Holders electing to have any Notes purchased pursuant to a
Change of Control Offer will be required to surrender the Notes, with the
form entitled "Option of Holder to Elect Purchase" on the reverse of the
Notes completed, to the Paying Agent at the address specified in the notice
prior to the close of business on the third Business Day preceding the
Change of Control Payment Date;
(6) that Holders will be entitled to withdraw their election if the
Paying Agent receives, not later than the close of business on the second
Business Day preceding the Change of Control Payment Date, a telegram,
telex, facsimile transmission or letter setting forth the name of the
Holder, the principal amount of Notes delivered for purchase, and a
statement that such Holder is withdrawing his election to have the Notes
purchased; and
46
(7) that Holders whose Notes are being purchased only in part will be
issued new Notes equal in principal amount to the unpurchased portion of
the Notes surrendered, which unpurchased portion must be equal to $1,000 in
principal amount or an integral multiple thereof.
On the Change of Control Payment Date, the Company shall, to the
extent lawful,
(1) accept for payment all Notes or portions of the Notes properly
tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the Change of
Control Payment in respect of all Notes or portions of the Notes so
tendered; and
(3) deliver or cause to be delivered to the Trustee the Notes so
accepted together with an Officers' Certificate stating the aggregate
principal amount of Notes or portions thereof being purchased by the
Company.
The Paying Agent shall promptly mail to each Holder of Notes properly
tendered payment in an amount equal to the purchase price for the Notes (the
"Change of Control Payment"), and the Trustee shall promptly authenticate and
mail (or cause to be transferred by book entry) to each Holder a new Note equal
in principal amount to any unpurchased portion of the Notes surrendered by such
Holder, if any; provided, that each such new Note shall be in a principal amount
of $1,000 or an integral multiple thereof. The Company shall publicly announce
the results of the Change of Control Offer on or as soon as practicable after
the Change of Control Payment Date.
The Change of Control provisions described above shall be applicable
whether or not any other provisions of this Indenture are applicable. The
Company shall comply with the requirements of Section 14(e) of the Exchange Act
and any other securities laws or regulations to the extent those laws and
regulations are applicable to any Change of Control Offer. If the provisions of
any of the applicable securities laws or securities regulations conflict with
the provisions of this Section 4.15, the Company shall comply with the
applicable securities laws and regulations and shall not be deemed to have
breached its obligations under this Section 4.15 by virtue of the compliance.
The Company shall not be required to make a Change of Control Offer upon a
Change of Control if a third party makes the Change of Control Offer in the
manner, at the times and otherwise in compliance with the requirements set forth
in this Indenture applicable to a Change of Control Offer made by the Company
and purchases all Notes properly tendered and not withdrawn under such Change of
Control Offer. The provisions under this Indenture relating to the Company's
obligation to make an offer to repurchase the Notes as a result of a Change of
Control may be waived or modified with the written consent of the Holders of a
at least a majority in principal amount of the Notes then outstanding.
Section 4.16. Sale and Leaseback Transactions.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, enter into any sale and leaseback transaction; provided,
however, that the Company or any of its Restricted Subsidiaries may enter into a
sale and leaseback transaction if:
(1) the Company or such Restricted Subsidiary, as applicable, could
have:
47
(a) incurred Indebtedness in an amount equal to the Attributable
Debt relating to such sale and leaseback transaction pursuant to the
Debt to Adjusted Consolidated Cash Flow Ratio test set forth in the
first paragraph of Section 4.09 hereof; or
(b) incurred a Lien to secure such Indebtedness pursuant to the
provisions of Section 4.12 hereof;
(2) the gross cash proceeds of such sale and leaseback transaction are
at least equal to the fair market value (as determined in good faith by the
Board of Directors) of the property that is the subject of the sale and
leaseback transaction; and
(3) the transfer of assets in the sale and leaseback transaction is
permitted by, and the Company applies the proceeds of such transaction in
compliance with, Section 4.10 hereof.
Section 4.17. Limitation on Issuances and Sales of Capital Stock of Restricted
Subsidiaries.
The Company:
(1) shall not, and shall not permit any of its Restricted Subsidiaries
to, transfer, convey, sell, lease or otherwise dispose of any Equity
Interests in any Restricted Subsidiary of the Company to any Person (other
than the Company or a Wholly Owned Restricted Subsidiary of the Company);
and
(2) shall not permit any of its Restricted Subsidiaries to issue any
of its Equity Interests (other than, if necessary, shares of its Capital
Stock constituting directors' qualifying shares) to any Person other than
to the Company or a Wholly Owned Restricted Subsidiary of the Company,
unless, in each such case:
(a) as a result of such transfer, conveyance, sale, lease or
other disposition or issuance, such Restricted Subsidiary no longer
constitutes a Subsidiary; and
(b) the cash Net Proceeds from such transfer, conveyance, sale,
lease or other disposition or issuance are applied in accordance with
Section 4.10 hereof.
Notwithstanding the foregoing, the issuance or sale of shares of Capital
Stock of any Restricted Subsidiary of the Company will not violate the
provisions of the immediately preceding sentence if such shares are issued or
sold in connection with (x) the formation or capitalization of a Restricted
Subsidiary or (y) a single transaction or a series of substantially
contemporaneous transactions whereby such Restricted Subsidiary becomes a
Restricted Subsidiary of the Company by reason of the acquisition of securities
or assets from another Person.
Section 4.18. Limitation on Issuances of Guarantees of Indebtedness.
The Company shall not permit any Restricted Subsidiary, directly or
indirectly, to Guarantee or pledge any assets to secure the payment of any other
Indebtedness of the Company unless such Subsidiary simultaneously executes and
delivers a supplemental indenture to this Indenture governing the Notes
providing for the Guarantee of the payment of the Notes by such Subsidiary,
which Guarantee shall be senior to or pari passu with such Subsidiary's
Guarantee of or pledge to secure such other Indebtedness. Notwithstanding the
foregoing, any Guarantee by a Subsidiary of the Notes shall provide
48
by its terms that it shall be automatically and unconditionally released and
discharged upon any sale, exchange or transfer, to any Person other than a
Subsidiary of the Company, of all of the Company's stock in, or all or
substantially all the assets of, such Subsidiary, which sale, exchange or
transfer is made in compliance with the applicable provisions of this Indenture.
The form of such Guarantee is attached as Exhibit C hereto.
ARTICLE 5
SUCCESSORS
Section 5.01. Merger, Consolidation or Sale of Assets.
The Company shall not:
(1) consolidate or merge with or into (whether or not the Company is the
surviving corporation); or
(2) sell, assign, transfer, lease, convey or otherwise dispose of all or
substantially all of its properties or assets in one or more related
transactions, to another corporation, Person or entity, unless:
(a) either (A) the Company is the surviving corporation; or (B) the
entity or the Person formed by or surviving any such consolidation or merger (if
other than the Company) or to which the sale, assignment, transfer, lease,
conveyance or other disposition shall have been made is a corporation organized
or existing under the laws of the United States, any state thereof or the
District of Columbia;
(b) the entity or Person formed by or surviving any such consolidation
or merger (if other than the Company) or the entity or Person to which the sale,
assignment, transfer, lease, conveyance or other disposition shall have been
made assumes all the Obligations of the Company under the Notes and this
Indenture pursuant to a supplemental indenture in a form reasonably satisfactory
to the Trustee;
(c) immediately after such transaction no Default exists; and
(d) except in the case of (A) a merger of the Company with or into a
Wholly Owned Restricted Subsidiary of the Company and (B) a merger entered into
solely for the purpose of reincorporating the Company in another jurisdiction:
(x) in the case of a merger or consolidation in which the Company is the
surviving corporation, the Company's Debt to Adjusted Consolidated Cash Flow
Ratio at the time of the transaction, after giving pro forma effect to the
transaction as of such date for balance sheet purposes and as if the transaction
had occurred at the beginning of the most recently ended four full fiscal
quarter period of the Company for which internal financial statements are
available for income statement purposes, would have been less than the Company's
Debt to Adjusted Consolidated Cash Flow Ratio for the same period without giving
pro forma effect to such transaction, or
(y) in the case of any other such transaction, the Debt to Adjusted
Consolidated Cash Flow of the entity or Person formed by or surviving any such
consolidation or merger (if other than the Company), or to which the sale,
assignment, transfer, lease, conveyance or other disposition shall have been
made, at the time of the transaction, after giving pro forma effect to the
transaction as of such date for balance sheet purposes and as if such
transaction had occurred at the beginning of the most recently
49
ended four full fiscal quarter period of such entity or Person for which
internal financial statements are available for income statement purposes, would
have been less than the Company's Debt to Adjusted Consolidated Cash Flow Ratio
for the same period without giving pro forma effect to such transaction;
provided that for purposes of determining the Debt to Adjusted Consolidated Cash
Flow Ratio of any entity or Person for purposes of this clause (d) the entity or
Person will be substituted for the Company in the definition of Debt to Adjusted
Consolidated Cash Flow Ratio and the defined terms included therein under
Section 4.09 hereof.
Section 5.02. Successor Corporation Substituted.
Upon any consolidation or merger, or any sale, assignment, transfer,
lease, conveyance or other disposition of all or substantially all of the assets
of the Company in accordance with Section 5.01 hereof, the successor corporation
formed by such consolidation or into or with which the Company is merged or to
which such sale, assignment, transfer, lease, conveyance or other disposition is
made shall succeed to, and be substituted for (so that from and after the date
of such consolidation, merger, sale, lease, conveyance or other disposition, the
provisions of this Indenture referring to the "Company" shall refer instead to
the successor corporation and not to the Company), and may exercise every right
and power of the Company under this Indenture with the same effect as if such
successor Person had been named as the Company herein; provided, however, that
the predecessor Company shall not be relieved from the obligation to pay the
principal of and interest on the Notes except in the case of a sale of all of
the Company's assets that meets the requirements of Section 5.01 hereof.
ARTICLE 6
DEFAULTS AND REMEDIES
Section 6.01. Events of Default.
Each of the following constitutes an Event of Default:
(1) default for 30 days in the payment when due of interest on the Notes;
(2) default in payment when due of the principal of or premium, if any, on
the Notes;
(3) failure by the Company or any of its Subsidiaries to comply with the
provisions described under Article 5 hereof or failure by CCIC to consummate
a Change of Control Offer or Asset Sale Offer in accordance with the
provisions of this Indenture;
(4) failure by the Company or any of its Subsidiaries for 30 days after
notice by the Trustee or the Holders of at least 25% in the aggregate
principal amount of the Notes then outstanding, voting as a single class, to
comply with any of its other agreements in the Indenture or the Notes;
(5) default under any mortgage, indenture or instrument under which there
may be issued or by which there may be secured or evidenced any Indebtedness
for money borrowed by the Company or any of its Significant Subsidiaries (or
the payment of which is guaranteed by the Company or any of its Significant
Subsidiaries) whether such Indebtedness or guarantee now exists, or is
created after the date of this Indenture, which default:
(a) is caused by a failure to pay principal of or premium, if any, or
interest on the Indebtedness prior to the expiration of the grace period
provided in such Indebtedness on the date of the default (a "Payment
Default"); or
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(b) results in the acceleration of the 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 under which there has been a Payment Default or the maturity
of which has been so accelerated, aggregates $20.0 million or more;
(6) failure by the Company or any of its Significant Subsidiaries to pay
final judgments aggregating in excess of $20.0 million, which judgments are
not paid, discharged or stayed for a period of 60 days; or
(7) the Company or any of its Restricted Subsidiaries pursuant to or
within the meaning of Bankruptcy Law:
(a) commences a voluntary case,
(b) consents to the entry of an order for relief against it in an
involuntary case,
(c) consents to the appointment of a Custodian of it or for all or
substantially all of its property,
(d) makes a general assignment for the benefit of its creditors, or
(e) generally is not paying its debts as they become due; or
(8) a court of competent jurisdiction enters an order or decree under any
Bankruptcy Law that:
(a) is for relief against the Company or any of its Restricted
Subsidiaries in an involuntary case;
(b) appoints a Custodian of the Company or any of its Restricted
Subsidiaries or for all or substantially all of the property of the Company
or any of its Restricted Subsidiaries; or
(c) orders the liquidation of the Company or any of its Restricted
Subsidiaries;
and the order or decree remains unstayed and in effect for 60 consecutive days.
Section 6.02. Acceleration.
If any Event of Default occurs and is continuing, the Trustee or the
Holders of at least 25% in principal amount of the then outstanding Notes may
declare all the Notes to be due and payable immediately. Upon any such
declaration, the principal of, and accrued and unpaid interest if any, on such
Notes shall become due and payable immediately. Notwithstanding the foregoing,
if an Event of Default specified in clause (7) or (8) of Section 6.01 hereof
occurs with respect to the Company or any of its Restricted Subsidiaries, all
outstanding Notes shall be due and payable immediately without further action or
notice. The Holders of a majority in aggregate principal amount of the then
outstanding Notes by written notice to the Trustee may on behalf of all of the
Holders rescind an acceleration and its consequences if the rescission would not
conflict with any judgment or decree and if all existing Events of Default
(except nonpayment of principal, interest or premium that has become due solely
because of the acceleration) have been cured or waived.
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Section 6.03. Other Remedies.
If an Event of Default occurs and is continuing, the Trustee may pursue
any available remedy to collect the payment of principal of, premium, if any,
and interest on the Notes or to enforce the performance of any provision of the
Notes or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any of
the Notes or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Holder of a Note in exercising any right or
remedy accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. All remedies
are cumulative to the extent permitted by law.
Section 6.04. Waiver of Past Defaults.
Holders of not less than a majority in aggregate principal amount of the
then outstanding Notes by notice to the Trustee may on behalf of the Holders of
all of the Notes waive an existing Default or Event of Default and its
consequences hereunder, except a continuing Default or Event of Default in the
payment of the principal of, premium, if any, or interest on, the Notes
(including in connection with an offer to purchase) (provided, however, that the
Holders of a majority in aggregate principal amount of the then outstanding
Notes may rescind an acceleration and its consequences, including any related
payment default that resulted from such acceleration). Upon any such waiver,
such Default shall cease to exist, and any Event of Default arising therefrom
shall be deemed to have been cured for every purpose of this Indenture; but no
such waiver shall extend to any subsequent or other Default or impair any right
consequent thereon.
Section 6.05. Control by Majority.
Holders of a majority in principal amount of the then outstanding Notes
may direct the time, method and place of conducting any proceeding for
exercising any remedy available to the Trustee or exercising any trust or power
conferred on it. However, the Trustee may refuse to follow any direction that
conflicts with law or this Indenture that the Trustee determines may be unduly
prejudicial to the rights of other Holders of Notes or that may involve the
Trustee in personal liability.
Section 6.06. Limitation on Suits.
A Holder of a Note may pursue a remedy with respect to this Indenture or
the Notes only if:
(1) the Holder of a Note gives to the Trustee written notice of a
continuing Event of Default;
(2) the Holders of at least 25% in principal amount of the then
outstanding Notes make a written request to the Trustee to pursue the remedy;
(3) such Holder of a Note or Holders of Notes offer and, if requested,
provide to the Trustee indemnity satisfactory to the Trustee against any loss,
liability or expense;
(4) the Trustee does not comply with the request within 60 days after
receipt of the request and the offer and, if requested, the provision of
indemnity; and
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(5) during such 60-day period the Holders of a majority in principal
amount of the then outstanding Notes do not give the Trustee a direction
inconsistent with the request.
A Holder of a Note may not use this Indenture to prejudice the rights of
another Holder of a Note or to obtain a preference or priority over another
Holder of a Note.
Section 6.07. Rights of Holders of Notes to Receive Payment.
Notwithstanding any other provision of this Indenture, the right of any
Holder of a Note to receive payment of principal of, premium, if any, and
interest on the Note, on or after the respective due dates expressed in the Note
(including in connection with an offer to purchase), or to bring suit for the
enforcement of any such payment on or after such respective dates, shall not be
impaired or affected without the consent of such Holder.
Section 6.08. Collection Suit by Trustee.
If an Event of Default specified in Section 6.01(a) or (b) occurs and is
continuing, the Trustee is authorized to recover judgment in its own name and as
trustee of an express trust against the Company for the whole amount of
principal of, premium, if any, and interest remaining unpaid on the Notes and
interest on overdue principal and, to the extent lawful, interest and such
further amount as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel.
Section 6.09. Trustee May File Proofs of Claim.
The Trustee is authorized to file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and the
Holders of the Notes allowed in any judicial proceedings relative to the Company
(or any other obligor upon the Notes), its creditors or its property and shall
be entitled and empowered to collect, receive and distribute any money or other
property payable or deliverable on any such claims and any Custodian 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 to
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 7.07 hereof. To the extent that the payment of any such compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, and
any other amounts due the Trustee under Section 7.07 hereof out of the estate in
any such proceeding, shall be denied for any reason, payment of the same shall
be secured by a Lien on, and shall be paid out of, any and all distributions,
dividends, money, securities and other properties that the Holders may be
entitled to receive in such proceeding whether in liquidation or under any plan
of reorganization or arrangement or otherwise. 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 Notes or the rights of any Holder, or to authorize the
Trustee to vote in respect of the claim of any Holder in any such proceeding.
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Section 6.10. Priorities.
If the Trustee collects any money pursuant to this Article, it shall pay
out the money in the following order:
First: to the Trustee, its agents and attorneys for amounts due under
Section 7.07 hereof, including payment of all compensation, expense and
liabilities incurred, and all advances made, by the Trustee and the costs and
expenses of collection;
Second: to Holders of Notes for amounts due and unpaid on the Notes
for principal, premium, if any, and interest, ratably, without preference or
priority of any kind, according to the amounts due and payable on the Notes
for principal, premium, if any and interest, respectively; and
Third: to the Company or to such party as a court of competent
jurisdiction shall direct.
The Trustee may fix a record date and payment date for any payment to
Holders of Notes pursuant to this Section 6.10.
Section 6.11. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted by
it as a Trustee, a court in its discretion may require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in the suit, having due regard to
the merits and good faith of the claims or defenses made by the party litigant.
This Section does not apply to a suit by the Trustee, a suit by a Holder of a
Note pursuant to Section 6.07 hereof, or a suit by Holders of more than 10% in
principal amount of the then outstanding Notes.
ARTICLE 7
TRUSTEE
Section 7.01. Duties of Trustee.
(a) If an Event of Default has occurred and is continuing, the Trustee
shall exercise such of the rights and powers vested in it by this Indenture, and
use the same degree of care and skill in its exercise, as a prudent person would
exercise or use under the circumstances in the conduct of such person's own
affairs.
(b) Except during the continuance of an Event of Default:
(i) the duties of the Trustee shall be determined solely by the express
provisions of this Indenture and the Trustee need perform only those duties that
are specifically set forth in this Indenture and no others, and no implied
covenants or obligations shall be read into this Indenture against the Trustee;
and
54
(ii) in the absence of bad faith on its part, the Trustee may conclusively
rely, as to the truth of the statements and the correctness of the opinions
expressed therein, upon certificates or opinions furnished to the Trustee and
conforming to the requirements of this Indenture. However, the Trustee shall
examine the certificates and opinions to determine whether or not they conform
to the requirements of this Indenture.
(c) The Trustee may not be relieved from liabilities for its own negligent
action, its own negligent failure to act, or its own willful misconduct, except
that:
(i) this paragraph does not limit the effect of paragraph (b) of this
Section;
(ii) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer, unless it is proved that the Trustee was
negligent in ascertaining the pertinent facts; and
(iii) the Trustee shall not be liable with respect to any action it takes
or omits to take in good faith in accordance with a direction received by it
pursuant to Section 6.05 hereof.
(d) Whether or not therein expressly so provided, every provision of this
Indenture that in any way relates to the Trustee is subject to paragraphs (a),
(b), and (c) of this Section.
(e) No provision of this Indenture shall require the Trustee to expend or
risk its own funds or incur any liability. The Trustee shall be under no
obligation to exercise any of its rights and powers under this Indenture at the
request of any Holders, unless such Holder shall have offered to the Trustee
security and indemnity satisfactory to it against any loss, liability or
expense.
(f) The Trustee shall not be liable for interest on any money received by
it except as the Trustee may agree in writing with the Company. Money held in
trust by the Trustee need not be segregated from other funds except to the
extent required by law.
Section 7.02. Rights of Trustee.
(a) The Trustee may conclusively rely upon 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 require an
Officers' Certificate or an Opinion of Counsel or both. The Trustee shall not
be liable for any action it takes or omits to take in good faith in reliance on
such Officers' Certificate or Opinion of Counsel. The Trustee may consult with
counsel and the written and oral advice of such counsel or any Opinion of
Counsel shall be full and complete authorization and protection from liability
in respect of any action taken, suffered or omitted by it hereunder in good
faith and in reliance thereon.
(c) The Trustee may act through its attorneys and agents and shall not be
responsible for the misconduct or negligence of any agent appointed with due
care.
(d) The Trustee shall not be liable for any action it takes or omits to
take in good faith that it believes to be authorized or within the rights or
powers conferred upon it by this Indenture.
55
(e) Unless otherwise specifically provided in this Indenture, any demand,
request, direction or notice from the Company shall be sufficient if signed by
an Officer of the Company.
(f) The Trustee shall be under no obligation to exercise any of the rights
or powers vested in it by this Indenture at the request or direction of any of
the Holders unless such Holders shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses and liabilities that might be
incurred by it in compliance with such request or direction.
Section 7.03. Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become the owner
or pledgee of Notes and may otherwise deal with the Company or any Affiliate of
the Company with the same rights it would have if it were not Trustee. However,
in the event that the Trustee acquires any conflicting interest it must
eliminate such conflict within 90 days, apply to the SEC for permission to
continue as trustee or resign. Any Agent may do the same with like rights and
duties. The Trustee is also subject to Sections 7.10 and 7.11 hereof.
Section 7.04. Trustee's Disclaimer.
The Trustee shall not be responsible for and makes no representation as to
the validity or adequacy of this Indenture or the Notes, it shall not be
accountable for the Company's use of the proceeds from the Notes or any money
paid to the Company or upon the Company's direction under any provision of this
Indenture, it shall not be responsible for the use or application of any money
received by any Paying Agent other than the Trustee, and it shall not be
responsible for any statement or recital herein or any statement in the Notes or
any other document in connection with the sale of the Notes or pursuant to this
Indenture other than its certificate of authentication.
Section 7.05. Notice of Defaults.
If a Default or Event of Default occurs and is continuing and if it is
known to the Trustee, the Trustee shall mail to Holders of Notes a notice of the
Default or Event of Default within 90 days after it occurs. Except in the case
of a Default or Event of Default in payment of principal of, premium, if any, or
interest on any Note, the Trustee may withhold the notice if and so long as a
committee of its Responsible Officers in good faith determines that withholding
the notice is in the interests of the Holders of the Notes.
Section 7.06. Reports by Trustee to Holders of the Notes.
Within 60 days after each May 15 beginning with the May 15 following the
date of this Indenture, and for so long as Notes remain outstanding, the Trustee
shall mail to the Holders of the Notes a brief report dated as of such reporting
date that complies with TIA (S) 313(a) (but if no event described in TIA (S)
313(a) has occurred within the twelve months preceding the reporting date, no
report need be transmitted). The Trustee also shall comply with TIA (S) 313(b).
The Trustee shall also transmit by mail all reports as required by TIA (S)
313(c).
A copy of each report at the time of its mailing to the Holders of Notes
shall be mailed to the Company and filed with the SEC and each stock exchange on
which the Notes are listed in accordance
56
with TIA (S) 313(d). The Company shall promptly notify the Trustee when the
Notes are listed on any stock exchange.
Section 7.07. Compensation and Indemnity.
The Company shall pay to the Trustee from time to time reasonable
compensation for its acceptance of this Indenture and services hereunder. 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 promptly
upon request for all reasonable disbursements, advances and expenses incurred or
made by it in addition to the compensation for its services. Such expenses
shall include the reasonable compensation, disbursements and expenses of the
Trustee's agents and counsel.
The Company shall indemnify the Trustee against any and all losses,
liabilities or expenses incurred by it arising out of or in connection with the
acceptance or administration of its duties under this Indenture, including the
costs and expenses of enforcing this Indenture against the Company (including
this Section 7.07) and defending itself against any claim (whether asserted by
the Company or any Holder or any other person) or liability in connection with
the exercise or performance of any of its powers or duties hereunder, except to
the extent any such loss, liability or expense may be attributable to its
negligence or bad faith. The Trustee shall notify the Company promptly of any
claim for which it may seek indemnity. Failure by the Trustee to so notify the
Company shall not relieve the Company of its obligations hereunder. The Company
shall defend the claim and the Trustee shall cooperate in the defense. The
Trustee may have separate counsel and the Company shall pay the reasonable fees
and expenses of such counsel. The Company need not pay for any settlement made
without its consent, which consent shall not be unreasonably withheld.
The obligations of the Company under this Section 7.07 shall survive the
satisfaction and discharge of this Indenture.
To secure the Company's payment obligations in this Section, the Trustee
shall have a Lien prior to the Notes on all money or property held or collected
by the Trustee, except that held in trust to pay principal and interest on
particular Notes. Such Lien shall survive the satisfaction and discharge of
this Indenture.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.01(g) or (h) hereof occurs, the expenses and the
compensation for the services (including the fees and expenses of its agents and
counsel) are intended to constitute expenses of administration under any
Bankruptcy Law.
The Trustee shall comply with the provisions of TIA (S) 313(b)(2) to the
extent applicable.
Section 7.08. Replacement of Trustee.
A resignation or removal of the Trustee and appointment of a successor
Trustee shall become effective only upon the successor Trustee's acceptance of
appointment as provided in this Section.
The Trustee may resign in writing at any time and be discharged from the
trust hereby created by so notifying the Company. The Holders of a majority in
principal amount of the then outstanding
57
Notes may remove the Trustee by so notifying the Trustee and the Company in
writing. The Company may remove the Trustee if:
(a) the Trustee fails to comply with Section 7.10 hereof;
(b) the Trustee is adjudged a bankrupt or an insolvent or an order for
relief is entered with respect to the Trustee under any Bankruptcy Law;
(c) a Custodian or 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 Holders
of a majority in principal amount of the then outstanding Notes may appoint a
successor Trustee to replace the successor Trustee appointed by the Company.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company, or
the Holders of at least 10% in principal amount of the then outstanding Notes
may petition any court of competent jurisdiction for the appointment of a
successor Trustee.
If the Trustee, after written request by any Holder who has been a Holder
for at least six months, fails to comply with Section 7.10, such Holder may
petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its appointment
to the retiring Trustee and to the Company. Thereupon, the resignation or
removal of the retiring Trustee shall become effective, and the successor
Trustee shall have all the rights, powers and duties of the Trustee under this
Indenture. The successor Trustee shall mail a notice of its succession to
Holders. The retiring Trustee shall promptly transfer all property held by it
as Trustee to the successor Trustee, provided all sums owing to the Trustee
hereunder have been paid and subject to the Lien provided for in Section 7.07
hereof. Notwithstanding replacement of the Trustee pursuant to this Section
7.08, the Company's obligations under Section 7.07 hereof shall continue for the
benefit of the retiring Trustee.
Section 7.09. Successor Trustee by Merger, etc.
If the Trustee consolidates, merges or converts into, or transfers all or
substantially all of its corporate trust business to, another corporation, the
successor corporation without any further act shall be the successor Trustee.
Section 7.10. Eligibility; Disqualification.
There shall at all times be a Trustee hereunder that is a corporation
organized and doing business under the laws of the United States of America or
of any state thereof that is authorized under such laws to exercise corporate
trustee power, that is subject to supervision or examination by federal or state
authorities and that has a combined capital and surplus of at least $75 million
as set forth in its most recent published annual report of condition.
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This Indenture shall always have a Trustee who satisfies the requirements
of TIA (S) 310(a)(1), (2) and (5). The Trustee is subject to TIA (S) 310(b).
Section 7.11. Preferential Collection of Claims Against Company.
The Trustee is subject to TIA (S) 311(a), excluding any creditor
relationship listed in TIA (S) 311(b). A Trustee who has resigned or been
removed shall be subject to TIA (S) 311(a) to the extent indicated therein.
ARTICLE 8
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.01. Option to Effect Legal Defeasance or Covenant Defeasance.
The Company may, at the option of its Board of Directors evidenced by a
resolution set forth in an Officers' Certificate, at any time, elect to have
either Section 8.02 or 8.03 hereof be applied to all outstanding Notes upon
compliance with the conditions set forth below in this Article Eight.
Section 8.02. Legal Defeasance and Discharge.
Upon the Company's exercise under Section 8.01 hereof of the option
applicable to this Section 8.02, the Company shall, subject to the satisfaction
of the conditions set forth in Section 8.04 hereof, be deemed to have been
discharged from its obligations with respect to all outstanding Notes on the
date the conditions set forth below are satisfied (hereinafter, "Legal
Defeasance"). For this purpose, Legal Defeasance means that the Company shall
be deemed to have paid and discharged the entire Indebtedness represented by the
outstanding Notes, which shall thereafter be deemed to be "outstanding" only for
the purposes of Section 8.05 hereof and the other Sections of this Indenture
referred to in (1) and (2) below, and to have satisfied all its other
obligations under such Notes 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 provisions which shall survive
until otherwise terminated or discharged hereunder:
(1) the rights of Holders of outstanding Notes to receive solely from the
trust fund described in Section 8.04 hereof, and as more fully set forth in such
Section, payments in respect of the principal of, premium, if any, and interest
on such Notes when such payments are due;
(2) the Company's obligations with respect to such Notes under Article 2
and Section 4.02 hereof;
(3) the rights, powers, trusts, duties and immunities of the Trustee
hereunder and the Company's obligations in connection therewith; and
(4) this Article Eight.
Subject to compliance with this Article Eight, the Company may exercise
its option under this Section 8.02 notwithstanding the prior exercise of its
option under Section 8.03 hereof.
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Section 8.03. Covenant Defeasance.
Upon the Company's exercise under Section 8.01 hereof of the option
applicable to this Section 8.03, the Company shall, subject to the satisfaction
of the conditions set forth in Section 8.04 hereof, be released from its
obligations under the covenants contained in Sections 4.07, 4.08, 4.09, 4.10,
4.11, 4.12, 4.13, 4.15, 4.16, 4.17 and 4.18 hereof and clause (4) of Section
5.01 hereof with respect to the outstanding Notes on and after the date the
conditions set forth in Section 8.04 are satisfied (hereinafter, "Covenant
Defeasance"), and the Notes 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 (it being
understood that such Notes shall not be deemed outstanding for accounting
purposes). For this purpose, Covenant Defeasance means that, with respect to
the outstanding Notes, the Company may omit to comply with and shall have no
liability in respect of any term, condition or limitation set forth in any such
covenant, whether directly or indirectly, by reason of any reference elsewhere
herein to any such covenant or by reason of any reference in any such covenant
to any other provision herein or in any other document and such omission to
comply shall not constitute a Default or an Event of Default under Section 6.01
hereof, but, except as specified above, the remainder of this Indenture and such
Notes shall be unaffected thereby. In addition, upon the Company's exercise
under Section 8.01 hereof of the option applicable to this Section 8.03 hereof,
subject to the satisfaction of the conditions set forth in Section 8.04 hereof,
Sections 6.01(3) through 6.01(6) hereof shall not constitute Events of Default.
Section 8.04. Conditions to Legal or Covenant Defeasance.
The following shall be the conditions to the application of either Section
8.02 or 8.03 hereof to the outstanding Notes:
In order to exercise either Legal Defeasance or Covenant Defeasance:
(1) the Company must irrevocably deposit with the Trustee, in trust, for
the benefit of the Holders, cash in United States dollars, non-callable
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, to pay the principal of, premium, if any, and interest on the
outstanding Notes on the stated date for payment thereof or on the applicable
redemption date, as the case may be;
(2) in the case of an election under Section 8.02 hereof, the Company
shall have delivered to the Trustee an Opinion of Counsel in the United States
reasonably acceptable to the Trustee confirming that:
(a) the Company has received from, or there has been published by, the
Internal Revenue Service a ruling; or
(b) since the date of this Indenture, there has been a change in the
applicable federal income tax law, in either case to the effect that, and
based thereon such Opinion of Counsel shall confirm that, the Holders of
the outstanding Notes will not recognize income, gain or loss for federal
income tax purposes as a result of such Legal Defeasance and will be
subject to federal income tax on the same amounts, in the same manner and
at the same times as would have been the case if such Legal Defeasance had
not occurred;
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(3) in the case of an election under Section 8.03 hereof, the Company
shall have delivered to the Trustee an Opinion of Counsel in the United States
reasonably acceptable to the Trustee confirming that the Holders of the
outstanding Notes 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;
(4) no Default or Event of Default shall have occurred and be continuing
either:
(a) on the date of such deposit (other than a Default or Event of
Default resulting from the borrowing of funds to be applied to such
deposit); or
(b) insofar as Sections 6.01(7) or 6.01(8) hereof are concerned, at
any time in the period ending on the 91st day after the date of deposit;
(5) such Legal Defeasance or Covenant Defeasance shall not result in a
breach or violation of, or constitute a default under, any material agreement or
instrument (other than this Indenture) to which the Company or any of its
Restricted Subsidiaries is a party or by which the Company or any of its
Restricted Subsidiaries is bound;
(6) the Company shall have delivered to the Trustee an Opinion of Counsel
to the effect that on the 91st day following the deposit, the trust funds will
not be subject to the effect of any applicable bankruptcy, insolvency,
reorganization or similar laws affecting creditors' rights generally;
(7) the Company shall have delivered to the Trustee an Officers'
Certificate stating that the deposit was not made by the Company with the intent
of preferring the Holders over any other creditors of the Company or with the
intent of defeating, hindering, delaying or defrauding any other creditors of
the Company or others; and
(8) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for or relating to the Legal Defeasance or the Covenant
Defeasance have been complied with.
Section 8.05. Deposited Money and Government Securities to be Held in Trust;
Other Miscellaneous Provisions.
Subject to Section 8.06 hereof, all money and non-callable Government
Securities (including the proceeds thereof) deposited with the Trustee (or other
qualifying trustee, collectively for purposes of this Section 8.05, the
"Trustee") pursuant to Section 8.04 hereof in respect of the outstanding Notes
shall be held in trust and applied by the Trustee, in accordance with the
provisions of such Notes and this Indenture, to the payment, either directly or
through any Paying Agent (including the Company acting as Paying Agent) as the
Trustee may determine, to the Holders of such Notes 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.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the cash or non-callable Government
Securities deposited pursuant to
61
Section 8.04 hereof or the principal and interest received in respect thereof
other than any such tax, fee or other charge which by law is for the account of
the Holders of the outstanding Notes.
Anything in this Article Eight to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon the request
of the Company any money or non-callable Government Securities held by it as
provided in Section 8.04 hereof which, in the opinion of a nationally recognized
firm of independent public accountants expressed in a written certification
thereof delivered to the Trustee (which may be the opinion delivered under
Section 8.04(a) hereof), are in excess of the amount thereof that would then be
required to be deposited to effect an equivalent Legal Defeasance or Covenant
Defeasance.
Section 8.06. Repayment to Company.
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 Note and remaining unclaimed for two years after such principal,
and premium, if any, or interest has become due and payable shall be paid to the
Company on its request or (if then held by the Company) shall be discharged from
such trust; and the Holder of such Note 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, and all liability of the Company as
trustee thereof, shall thereupon cease; provided, however, that the Trustee or
such Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, in the New York Times and The
Wall Street Journal (national edition), notice that such money remains unclaimed
and that, after a date specified therein, which shall not be less than 30 days
from the date of such notification or publication, any unclaimed balance of such
money then remaining will be repaid to the Company.
Section 8.07. Reinstatement.
If the Trustee or Paying Agent is unable to apply any United States
dollars or non-callable Government Securities in accordance with Section 8.02 or
8.03 hereof, 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 Notes
shall be revived and reinstated as though no deposit had occurred pursuant to
Section 8.02 or 8.03 hereof until such time as the Trustee or Paying Agent is
permitted to apply all such money in accordance with Section 8.02 or 8.03
hereof, as the case may be; provided, however, that, if the Company makes any
payment of principal of, premium, if any, or interest on any Note following the
reinstatement of its obligations, the Company shall be subrogated to the rights
of the Holders of such Notes to receive such payment from the money held by the
Trustee or Paying Agent.
ARTICLE 9
AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.01. Without Consent of Holders of Notes.
Notwithstanding Section 9.02 of this Indenture, the Company and the
Trustee may amend or supplement this Indenture or the Notes without the consent
of any Holder of Notes:
62
(1) to cure any ambiguity, defect or inconsistency;
(2) to provide for uncertificated Notes in addition to or in place of
certificated Notes;
(3) to provide for the assumption of the Company's obligations to the
Holders of the Notes by a successor to the Company pursuant to Article 5 hereof;
(4) to make any change that would provide any additional rights or
benefits to the Holders of the Notes or that does not adversely affect the legal
rights hereunder of any Holder of Notes; or
(5) to comply with requirements of the SEC in order to effect or maintain
the qualification of this Indenture under the TIA.
Upon the request of the Company accompanied by a resolution of its Board
of Directors authorizing the execution of any such amended or supplemental
Indenture, and upon receipt by the Trustee of the documents described in Section
7.02 hereof, the Trustee shall join with the Company in the execution of any
amended or supplemental Indenture authorized or permitted by the terms of this
Indenture and to make any further appropriate agreements and stipulations that
may be therein contained, but the Trustee shall not be obligated to enter into
such amended or supplemental Indenture that affects its own rights, duties or
immunities under this Indenture or otherwise.
Section 9.02. With Consent of Holders of Notes.
Except as provided below in this Section 9.02, the Company and the Trustee
may amend or supplement this Indenture (including Section 3.09, 4.10 and 4.15
hereof) and the Notes with the consent of the Holders of at least a majority in
principal amount of the Notes then outstanding, voting as a single class
(including, without limitation, consents obtained in connection with a tender
offer or exchange offer for, or purchase of, the Notes), and, subject to
Sections 6.04 and 6.07 hereof, any existing Default or Event of Default (other
than a Default or Event of Default in the payment of the principal of, premium,
if any, or interest on the Notes, except a payment default resulting from an
acceleration that has been rescinded) or compliance with any provision of this
Indenture or the Notes may be waived with the consent of the Holders of a
majority in principal amount of the then outstanding Notes, voting as a single
class (including consents obtained in connection with a tender offer or exchange
offer for, or purchase of, the Notes). Section 2.08 hereof shall determine
which Notes are considered to be "outstanding" for purposes of this Section
9.02.
Upon the request of the Company accompanied by a resolution of its Board
of Directors authorizing the execution of any such amended or supplemental
Indenture, and upon the filing with the Trustee of evidence satisfactory to the
Trustee of the consent of the Holders of Notes as aforesaid, and upon receipt by
the Trustee of the documents described in Section 7.02 hereof, the Trustee shall
join with the Company in the execution of such amended or supplemental Indenture
unless such amended or supplemental Indenture directly affects the Trustee's own
rights, duties or immunities under this Indenture or otherwise, in which case
the Trustee may in its discretion, but shall not be obligated to, enter into
such amended or supplemental Indenture.
It shall not be necessary for the consent of the Holders of Notes under
this Section 9.02 to approve the particular form of any proposed amendment or
waiver, but it shall be sufficient if such consent approves the substance
thereof.
63
After an amendment, supplement or waiver under this Section becomes
effective, the Company shall mail to the Holders of Notes affected thereby a
notice briefly describing the amendment, supplement or waiver. Any failure of
the Company to mail such notice, or any defect therein, shall not, however, in
any way impair or affect the validity of any such amended or supplemental
Indenture or waiver. Subject to Sections 6.04 and 6.07 hereof, the Holders of a
majority in aggregate principal amount of the Notes then outstanding, voting as
a single class, may waive compliance in a particular instance by the Company
with any provision of this Indenture or the Notes. However, without the consent
of each Holder affected, an amendment or waiver under this Section 9.02 may not
(with respect to any Notes held by a non-consenting Holder):
(1) reduce the principal amount of Notes whose Holders must consent to an
amendment, supplement or waiver;
(2) reduce the principal of or change the fixed maturity of any Note or
alter or waive any of the provisions with respect to the redemption of the
Notes, except as provided above with respect to Sections 3.09, 4.10 and 4.15
hereof;
(3) reduce the rate of or change the time for payment of interest,
including default interest, on any Note;
(4) waive a Default or Event of Default in the payment of principal of or
premium, if any, or interest on the Notes (except a rescission of acceleration
of the Notes by the Holders of at least a majority in aggregate principal amount
of the then outstanding Notes and a waiver of the payment default that resulted
from such acceleration);
(5) make any Note payable in money other than that stated in the Notes;
(6) make any change in the provisions of this Indenture relating to
waivers of past Defaults or the rights of Holders of Notes to receive payments
of principal of, or premium, if any, or interest on the Notes;
(7) waive a redemption payment (but not any payment pursuant to Sections
3.09, 4.10 or 4.15 hereof) with respect to any Note;
(8) except as provided under Article Eight hereof or in accordance with
the terms of any Note Guarantee, release any Guarantor from any of its
obligations under its Note Guarantee or make any change in a Note Guarantee that
would adversely affect the Holders of the Notes; or
(9) make any change in Section 6.04 or 6.07 hereof or in the foregoing
amendment and waiver provisions.
Section 9.03. Compliance with Trust Indenture Act.
Every amendment or supplement to this Indenture or the Notes shall be set
forth in a amended or supplemental Indenture that complies with the TIA as then
in effect.
64
Section 9.04. Revocation and Effect of Consents.
Until an amendment, supplement or waiver becomes effective, a consent to
it by a Holder of a Note is a continuing consent by the Holder of a Note and
every subsequent Holder of a Note or portion of a Note that evidences the same
debt as the consenting Holder's Note, even if notation of the consent is not
made on any Note. However, any such Holder of a Note or subsequent Holder of a
Note may revoke the consent as to its Note if the Trustee receives written
notice of revocation before the date the waiver, supplement or amendment becomes
effective. An amendment, supplement or waiver becomes effective in accordance
with its terms and thereafter binds every Holder.
Section 9.05. Notation on or Exchange of Notes.
The Trustee may place an appropriate notation about an amendment,
supplement or waiver on any Note thereafter authenticated. The Company in
exchange for all Notes may issue and the Trustee shall, upon receipt of an
Authentication Order, authenticate new Notes that reflect the amendment,
supplement or waiver.
Failure to make the appropriate notation or issue a new Note shall not
affect the validity and effect of such amendment, supplement or waiver.
Section 9.06. Trustee to Sign Amendments, etc.
The Trustee shall sign any amended or supplemental Indenture authorized
pursuant to this Article Nine if the amendment or supplement does not adversely
affect the rights, duties, liabilities or immunities of the Trustee. The
Company may not sign an amendment or supplemental Indenture until the Board of
Directors approves it. In executing any amended or supplemental indenture, the
Trustee shall be entitled to receive and (subject to Section 7.01 hereof) shall
be fully protected in relying upon, in addition to the documents required by
Section 11.04 hereof, an Officer's Certificate and an Opinion of Counsel stating
that the execution of such amended or supplemental indenture is authorized or
permitted by this Indenture.
ARTICLE 10
NOTE GUARANTEES
Section 10.01. Guarantee.
The provisions of this Article 10 shall apply only to those Subsidiaries
of the Company, if any, that execute one or more supplemental indentures to this
Indenture in the form of Exhibit C to this Indenture in compliance with the
requirements of Section 4.18 of this Indenture.
Subject to this Article 10, each of the Guarantors hereby, jointly and
severally, unconditionally guarantees to each Holder of a Note authenticated and
delivered by the Trustee and to the Trustee and its successors and assigns,
irrespective of the validity and enforceability of this Indenture, the Notes or
the obligations of the Company hereunder or thereunder, that: (a) the principal
of and interest on the Notes will be promptly paid in full when due, whether at
maturity, by acceleration, redemption or otherwise, and interest on the overdue
principal of and interest on the Notes, if any, if lawful, and all other
obligations of the Company to the Holders or the Trustee hereunder or thereunder
will be promptly paid
65
in full or performed, all in accordance with the terms hereof and thereof; and
(b) in case of any extension of time of payment or renewal of any Notes or any
of such other obligations, that same will be promptly paid in full when due or
performed in accordance with the terms of the extension or renewal, whether at
stated maturity, by acceleration or otherwise. Failing payment when due of any
amount so guaranteed or any performance so guaranteed for whatever reason, the
Guarantors shall be jointly and severally obligated to pay the same immediately.
Each Guarantor agrees that this is a guarantee of payment and not a guarantee of
collection.
The Guarantors hereby agree that their obligations hereunder shall be
unconditional, irrespective of the validity, regularity or enforceability of the
Notes or this Indenture, the absence of any action to enforce the same, any
waiver or consent by any Holder of the Notes with respect to any provisions
hereof or thereof, the recovery of any judgment against the Company, any action
to enforce the same or any other circumstance which might otherwise constitute a
legal or equitable discharge or defense of a guarantor. Each Guarantor hereby
waives diligence, presentment, demand of payment, filing of claims with a court
in the event of insolvency or bankruptcy of the Company, any right to require a
proceeding first against the Company, protest, notice and all demands whatsoever
and covenant that this Note Guarantee shall not be discharged except by complete
performance of the obligations contained in the Notes and this Indenture.
If any Holder or the Trustee is required by any court or otherwise to
return to the Company, the Guarantors or any Custodian, trustee, liquidator or
other similar official acting in relation to either the Company or the
Guarantors, any amount paid by either to the Trustee or such Holder, this Note
Guarantee, to the extent theretofore discharged, shall be reinstated in full
force and effect.
Each Guarantor agrees that it shall not be entitled to any right of
subrogation in relation to the Holders in respect of any obligations guaranteed
hereby until payment in full of all obligations guaranteed hereby. Each
Guarantor further agrees that, as between the Guarantors, on the one hand, and
the Holders and the Trustee, on the other hand, (x) the maturity of the
obligations guaranteed hereby may be accelerated as provided in Article 6 hereof
for the purposes of this Note Guarantee, notwithstanding any stay, injunction or
other prohibition preventing such acceleration in respect of the obligations
guaranteed hereby, and (y) in the event of any declaration of acceleration of
such obligations as provided in Article 6 hereof, such obligations (whether or
not due and payable) shall forthwith become due and payable by the Guarantors
for the purpose of this Note Guarantee. The Guarantors shall have the right to
seek contribution from any non-paying Guarantor so long as the exercise of such
right does not impair the rights of the Holders under the Guarantee.
Section 10.02. Limitation on Guarantor Liability.
Each Guarantor, and by its acceptance of Notes, each Holder, hereby
confirms that it is the intention of all such parties that the Note Guarantee of
such Guarantor not constitute a fraudulent transfer or conveyance for purposes
of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent
Transfer Act or any similar federal or state law to the extent applicable to any
Note Guarantee. To effectuate the foregoing intention, the Trustee, the Holders
and the Guarantors hereby irrevocably agree that the obligations of such
Guarantor will, after giving effect to such maximum amount and all other
contingent and fixed liabilities of such Guarantor that are relevant under such
laws, and after giving effect to any collections from, rights to receive
contribution from or payments made by or on behalf of any other Guarantor in
respect of the obligations of such other Guarantor under this
66
Article 10, result in the obligations of such Guarantor under its Note Guarantee
not constituting a fraudulent transfer or conveyance.
Section 10.03. Execution and Delivery of Note Guarantee.
To evidence its Note Guarantee set forth in Section 10.01, each Guarantor
hereby agrees that a notation of such Note Guarantee substantially in the form
included in Exhibit E shall be endorsed by an Officer of such Guarantor on each
Note authenticated and delivered by the Trustee and that this Indenture shall be
executed on behalf of such Guarantor by its President or one of its Vice
Presidents.
Each Guarantor hereby agrees that its Note Guarantee set forth in Section
10.01 shall remain in full force and effect notwithstanding any failure to
endorse on each Note a notation of such Note Guarantee.
If an Officer whose signature is on this Indenture or on the Note
Guarantee no longer holds that office at the time the Trustee authenticates the
Note on which a Note Guarantee is endorsed, the Note Guarantee shall be valid
nevertheless.
The delivery of any Note by the Trustee, after the authentication thereof
hereunder, shall constitute due delivery of the Note Guarantee set forth in this
Indenture on behalf of the Guarantors.
In the event that the Company creates or acquires any new Subsidiaries
subsequent to the date of this Indenture, if required by Section 4.18 hereof,
the Company shall cause such Subsidiaries to execute supplemental indentures to
this Indenture and Note Guarantees in accordance with Section 4.18 hereof and
this Article 10, to the extent applicable.
Section 10.04. Guarantors May Consolidate, etc., on Certain Terms.
Except as otherwise provided in Section 10.05, no Guarantor may
consolidate with or merge with or into (whether or not such Guarantor is the
surviving Person) another Person whether or not affiliated with such Guarantor
unless:
(a) subject to Section 10.05 hereof, the Person formed by or surviving any
such consolidation or merger (if other than a Guarantor or the Company)
unconditionally assumes all the obligations of such Guarantor, pursuant to a
supplemental indenture in form and substance reasonably satisfactory to the
Trustee, under the Notes, the Indenture and the Note Guarantee on the terms set
forth herein or therein; and
(b) immediately after giving effect to such transaction, no Default or
Event of Default exists.
In case of any such consolidation, merger, sale or conveyance and upon the
assumption by the successor Person, by supplemental indenture, executed and
delivered to the Trustee and satisfactory in form to the Trustee, of the Note
Guarantee endorsed upon the Notes and the due and punctual performance of all of
the covenants and conditions of this Indenture to be performed by the Guarantor,
such successor Person shall succeed to and be substituted for the Guarantor with
the same effect as if it had been named herein as a Guarantor. Such successor
Person thereupon may cause to be signed any or all of the Note Guarantees to be
endorsed upon all of the Notes issuable hereunder which theretofore shall not
have been signed by the Company and delivered to the Trustee. All the Note
Guarantees so
67
issued shall in all respects have the same legal rank and benefit under this
Indenture as the Note Guarantees theretofore and thereafter issued in accordance
with the terms of this Indenture as though all of such Note Guarantees had been
issued at the date of the execution hereof.
Except as set forth in Articles 4 and 5 hereof, and notwithstanding
clauses (a) and (b) above, nothing contained in this Indenture or in any of the
Notes shall prevent any consolidation or merger of a Guarantor with or into the
Company or another Guarantor, or shall prevent any sale or conveyance of the
property of a Guarantor as an entirety or substantially as an entirety to the
Company or another Guarantor.
Section 10.05. Releases Following Sale of Assets.
In the event of a sale or other disposition of all of the assets of any
Guarantor, by way of merger, consolidation or otherwise, or a sale or other
disposition of all to the capital stock of any Guarantor, in each case to a
Person that is not (either before or after giving effect to such transactions) a
Subsidiary of the Company, then such Guarantor (in the event of a sale or other
disposition, by way of merger, consolidation or otherwise, of all of the capital
stock of such Guarantor) or the corporation acquiring the property (in the event
of a sale or other disposition of all or substantially all of the assets of such
Guarantor) will be released and relieved of any obligations under its Note
Guarantee; provided that the Net Proceeds of such sale or other disposition are
applied in accordance with the applicable provisions of this Indenture,
including without limitation Section 4.10 hereof. Upon delivery by the Company
to the Trustee of an Officers' Certificate and an Opinion of Counsel to the
effect that such sale or other disposition was made by the Company in accordance
with the provisions of this Indenture, including without limitation Section 4.10
hereof, the Trustee shall execute any documents reasonably required in order to
evidence the release of any Guarantor from its obligations under its Note
Guarantee.
Any Guarantor not released from its obligations under its Note Guarantee
shall remain liable for the full amount of principal of and interest on the
Notes and for the other obligations of any Guarantor under this Indenture as
provided in this Article 10.
ARTICLE 11
MISCELLANEOUS
Section 11.01. Trust Indenture Act Controls.
If any provision of this Indenture limits, qualifies or conflicts with the
duties imposed by TIA (S)318(c), the imposed duties shall control.
Section 11.02. Notices.
Any notice or communication by the Company or the Trustee to the others is
duly given if in writing and delivered in Person or mailed by first class mail
(registered or certified, return receipt requested), telex, telecopier or
overnight air courier guaranteeing next day delivery, to the others' address:
68
If to the Company:
Crown Castle International Corp.
510 Bering Drive, Suite 500
Houston, Texas 77057
Telecopier No.: (713) 570-3150
Attention: Chief Financial Officer
With a copy to:
Cravath, Swaine & Moore
825 Eighth Avenue
New York, New York 10019
Telecopier No.: (212) 474-3700
Attention: Stephen L. Burns, Esq.
If to the Trustee:
Unites States Trust Company of New York
114 West 47th Street, 25th Floor
New York, New York 10036
Telecopier No.: (212) 852-1626
Attention: Gerard F. Ganey
Corporate Trust Division
The Company or the Trustee, by notice to the others, may designate
additional or different addresses for subsequent notices or communications.
All notices and communications (other than those sent to Holders) shall be
deemed to have been duly given: at the time delivered by hand, if personally
delivered; five Business Days after being deposited in the mail, postage
prepaid, if mailed; when answered back, if telexed; when receipt acknowledged,
if telecopied; and the next Business Day after timely delivery to the courier,
if sent by overnight air courier guaranteeing next day delivery.
Any notice or communication to a Holder shall be mailed by first class
mail, certified or registered, return receipt requested, or by overnight air
courier guaranteeing next day delivery to its address shown on the register kept
by the Registrar. Any notice or communication shall also be so mailed to any
Person described in TIA (S) 313(c), to the extent required by the TIA. Failure
to mail a notice or communication to a Holder or any defect in it shall not
affect its sufficiency with respect to other Holders.
If a notice or communication is mailed in the manner provided above within
the time prescribed, it is duly given, whether or not the addressee receives it.
If the Company mails a notice or communication to Holders, it shall mail a
copy to the Trustee and each Agent at the same time.
69
Section 11.03. Communication by Holders of Notes with Other Holders of Notes.
Holders may communicate pursuant to TIA (S) 312(b) with other Holders with
respect to their rights under this Indenture or the Notes. The Company, the
Trustee, the Registrar and anyone else shall have the protection of TIA (S)
312(c).
Section 11.04. Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company to the Trustee to take any
action under this Indenture, the Company shall furnish to the Trustee:
(a) an Officers' Certificate in form and substance reasonably satisfactory
to the Trustee (which shall include the statements set forth in Section 11.05
hereof) stating that, in the opinion of the signers, all conditions precedent
and covenants, if any, provided for in this Indenture relating to the proposed
action have been satisfied; and
(b) an Opinion of Counsel in form and substance reasonably satisfactory to
the Trustee (which shall include the statements set forth in Section 11.05
hereof) stating that, in the opinion of such counsel, all such conditions
precedent and covenants have been satisfied.
Section 11.05. Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture (other than a certificate provided
pursuant to TIA (S) 314(a)(4)) shall comply with the provisions of TIA (S)
314(e) and shall include:
(a) a statement that the Person making such certificate or opinion has
read such covenant or condition;
(b) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(c) a statement that, in the opinion of such Person, he or she 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
satisfied; and
(d) a statement as to whether or not, in the opinion of such Person, such
condition or covenant has been satisfied.
Section 11.06. Rules by Trustee and Agents.
The Trustee may make reasonable rules for action by or at a meeting of
Holders. The Registrar or Paying Agent may make reasonable rules and set
reasonable requirements for its functions; provided that no such rule shall
conflict with the terms of this Indenture or the TIA.
70
Section 11.07. No Personal Liability of Directors, Officers, Employees and
Stockholders.
No past, present or future director, officer, employee, incorporator or
stockholder of the Company, as such, shall have any liability for any
obligations of the Company under the Notes, this Indenture or for any claim
based on, in respect of, or by reason of, such obligations or their creation.
Each Holder by accepting a Note waives and releases all such liability. The
waiver and release are part of the consideration for issuance of the Notes.
Section 11.08. Governing Law.
THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO
CONSTRUE THIS INDENTURE, THE NOTES WITHOUT GIVING EFFECT TO APPLICABLE
PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF
ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
Section 11.09. No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret any other indenture, loan or
debt agreement of the Company or its Subsidiaries or of any other Person. Any
such indenture, loan or debt agreement may not be used to interpret this
Indenture.
Section 11.10. Successors.
All agreements of the Company in this Indenture and the Notes shall bind
its successors. All agreements of the Trustee in this Indenture shall bind its
successors.
Section 11.11. Severability.
In case any provision in this Indenture or in the Notes shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
Section 11.12. Counterpart Originals.
The parties may sign any number of copies of this Indenture. Each signed
copy shall be an original, but all of them together represent the same
agreement.
Section 11.13. Table of Contents, Headings, etc.
The Table of Contents, Cross-Reference Table and Headings of the Articles
and Sections of this Indenture have been inserted for convenience of reference
only, are not to be considered a part of this Indenture and shall in no way
modify or restrict any of the terms or provisions hereof.
[Signatures on following page]
71
SIGNATURES
Dated as of May 17, 1999
Crown Castle International Corp.
By: /s/ Blake Hawk
--------------------------------
Name: E. Blake Hawk
Title: Executive Vice President
Attest:
/s/ Kathy Broussard
- --------------------------------
Name: Kathy Broussard
Title: Vice President/Secretary
United States Trust Company of New York
By: /s/ M Ciesmelewski
--------------------------------
Name: Margaret Ciesmelewski
Title: Assistant Vice President
Attest:
/s/ Jason Gregory
- --------------------------------
Authorized Signatory
Date:
[Face of Note]
- --------------------------------------------------------------------------------
CUSIP/CINS
-------------
9% Senior Notes due 2011
No. $
--- ------------
CROWN CASTLE INTERNATIONAL CORP.
promises to pay to or its registered assigns,
-----------------------
the principal sum of DOLLARS
-----------------------------------------------------
on May 15, 2011.
Interest Payment Dates: May 15 and November 15
Record Dates: May 1 and November 1
Dated: May 17, 1999
CROWN CASTLE INTERNATIONAL CORP.
By:
--------------------------------------
Name:
Title:
By:
--------------------------------------
Name:
Title:
(SEAL)
This is one of the [Global] Notes referred to
in the within-mentioned Indenture:
United States Trust Company of New York,
as Trustee
By:
--------------------------------------
Authorized Signatory
- --------------------------------------------------------------------------------
A-1
[Back of Note]
9% Senior Notes due 2011
[Insert the Global Note Legend, if applicable pursuant to the provisions of the
Indenture]
Capitalized terms used herein shall have the meanings assigned to them in
the Indenture referred to below unless otherwise indicated.
1. Interest. Crown Castle International Corp., a Delaware corporation
(the "Company"), promises to pay interest on the principal amount of this Note
at 9% per annum from May 17, 1999 until maturity. The Company will pay interest
semi-annually in arrears on May 15 and November 15 of each year, or if any such
day is not a Business Day, on the next succeeding Business Day (each an
"Interest Payment Date"). Interest on the Notes will accrue from the most recent
date to which interest has been paid or, if no interest has been paid, from the
date of issuance; provided that if there is no existing Default in the payment
of interest, and if this Note is authenticated between a record date referred to
on the face hereof and the next succeeding Interest Payment Date, interest shall
accrue from such next succeeding Interest Payment Date; provided, further, that
the first Interest Payment Date shall be November 15, 1999. The Company shall
pay interest (including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue principal and premium, if any, from time to time on
demand at a rate that is 1% per annum in excess of the rate then in effect; it
shall pay interest (including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue installments of interest (without regard to any
applicable grace periods) from time to time on demand at the same rate to the
extent lawful. Interest will be computed on the basis of a 360-day year of
twelve 30-day months.
2. Method of Payment. The Company will pay interest on the Notes (except
defaulted interest) to the Persons who are registered Holders of Notes at the
close of business on the May 1 or November 1 next preceding the Interest Payment
Date, even if such Notes are canceled after such record date and on or before
such Interest Payment Date, except as provided in Section 2.12 of the Indenture
with respect to defaulted interest. The Notes will be payable as to principal,
premium, if any, and interest at the office or agency of the Company maintained
for such purpose within or without the City and State of New York, or, at the
option of the Company, payment of interest may be made by check mailed to the
Holders at their addresses set forth in the register of Holders, and provided
that payment by wire transfer of immediately available funds will be required
with respect to principal of and interest, premium on, all Global Notes and all
other Notes the Holders of which shall have provided wire transfer instructions
to the Company or the Paying Agent. Such payment shall be in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts.
3. Paying Agent and Registrar. Initially, United States Trust Company of
New York, the Trustee under the Indenture, will act as Paying Agent and
Registrar. The Company may change any Paying Agent or Registrar without notice
to any Holder. The Company or any of its Subsidiaries may act in any such
capacity.
4. Indenture. The Company issued the Notes under an Indenture dated as
of May 17, 1999 ("Indenture") between the Company and the Trustee. The terms of
the Notes include those stated in the Indenture and those made part of the
Indenture by reference to the Trust Indenture Act of 1939, as amended (15 U.S.
Code (S)(S) 77aaa-77bbbb) (the "Trust Indenture Act"). The Notes are subject to
all such terms, and Holders are referred to the Indenture and the Trust
Indenture Act for a statement of such terms. To the extent any provision of this
Note conflicts with the express provisions of the Indenture, the
A-2
provisions of the Indenture shall govern and be controlling. The Notes are
obligations of the Company limited to $330.0 million in aggregate principal
amount.
5. Optional Redemption.
(a) Except as provided in clause (b) of this Paragraph 5, the Notes will
not be redeemable at the Company's option prior to May 15 , 2004. On or after
May 15, 2004, the Company may redeem all or a part of the Notes upon not less
than 30 nor more than 60 days' notice, at the redemption prices (expressed as
percentages of principal amount) set forth below plus accrued and unpaid
interest if any, on the Notes redeemed to the applicable redemption date
(subject to the right of Holders of record on the relevant record date to
receive interest due on the relevant interest payment date), if redeemed during
the twelve-month period beginning on May 15 of the years indicated below:
Year Percentage
- ---- ----------
2004........................................................................... 104.5%
2005........................................................................... 103.0%
2006........................................................................... 101.5%
2007 and thereafter............................................................ 100.0%
(b) Notwithstanding the provisions of clause (a) of this Paragraph 5, at
any time during the first 36 months after the date of the original issuance of
the Notes, the Company may on any one or more occasions redeem up to 35% of the
aggregate principal amount of the Notes originally issued at a redemption price
equal to 109% of the aggregate principal amount of the Notes to be redeemed on
the redemption date with the net cash proceeds of one or more Public Equity
Offerings and/or Strategic Equity Investments provided that:
(1) at least 65% of the aggregate principal amount of the Notes originally
issued remains outstanding immediately after the occurrence of such redemption
(excluding Notes held by the Company or any of its Subsidiaries); and
(2) the redemption occurs within 60 days of the date of the closing of
such Public Equity Offering or Strategic Equity Investment.
6. Mandatory Redemption.
Except as set forth in paragraph 7 below, the Company shall not be
required to make mandatory redemption payments with respect to the Notes.
7. Repurchase at Option of Holder.
(a) If there is a Change of Control, the Company shall be required to make
an offer (a "Change of Control Offer") to repurchase all or any part (equal to
$1,000 or an integral multiple thereof) of each Holder's Notes at a purchase
price equal to 101% of the aggregate principal amount thereof plus accrued and
unpaid interest thereon, if any, to the date of purchase (the "Change of Control
Payment"). Within 30 days following any Change of Control, the Company shall
mail a notice to each Holder setting forth the procedures governing the Change
of Control Offer as required by the Indenture.
(b) If the Company or a Restricted Subsidiary consummates any Asset Sales
when the aggregate amount of Excess Proceeds exceeds $10 million, the Company
shall commence an offer to all
A-3
Holders of Notes (as "Asset Sale Offer") pursuant to Section 3.09 of the
Indenture to purchase the maximum principal amount of Notes that may be
purchased out of the Excess Proceeds at an offer price in cash in an amount
equal to 100% of the principal amount thereof plus accrued and unpaid interest
thereon, if any, to the date fixed for the closing of such offer, in accordance
with the procedures set forth in the Indenture. To the extent that the aggregate
amount of Notes tendered pursuant to an Asset Sale Offer is less than the Excess
Proceeds, the Company (or such Restricted Subsidiary) may use such deficiency
for any purpose not otherwise prohibited by the Indenture. If the aggregate
principal amount of Notes surrendered by Holders thereof exceeds the amount of
Excess Proceeds, the Trustee shall select the Notes to be purchased on a pro
rata basis. Holders of Notes that are the subject of an offer to purchase will
receive an Asset Sale Offer from the Company prior to any related purchase date
and may elect to have such Notes purchased by completing the form entitled
"Option of Holder to Elect Purchase" on the reverse of the Notes.
8. Notice of Redemption. Notice of redemption will be mailed at least 30
days but not more than 60 days before the redemption date to each Holder whose
Notes are to be redeemed at its registered address. Notes in denominations
larger than $1,000 may be redeemed in part but only in whole multiples of
$1,000, unless all of the Notes held by a Holder are to be redeemed. On and
after the redemption date interest ceases to accrue on Notes or portions thereof
called for redemption.
9. Denominations, Transfer, Exchange. The Notes are in registered form
without coupons in denominations of $1,000 and integral multiples of $1,000.
The transfer of Notes may be registered and Notes may be exchanged as provided
in the Indenture. The Registrar and the Trustee may require a Holder, among
other things, to furnish appropriate endorsements and transfer documents and the
Company may require a Holder to pay any taxes and fees required by law or
permitted by the Indenture. The Company need not exchange or register the
transfer of any Note or portion of a Note selected for redemption, except for
the unredeemed portion of any Note being redeemed in part. Also, the Company
need not exchange or register the transfer of any Notes for a period of 15 days
before a selection of Notes to be redeemed or during the period between a record
date and the corresponding Interest Payment Date.
10. Persons Deemed Owners. The registered Holder of a Note may be
treated as its owner for all purposes.
11. Amendment, Supplement and Waiver. Subject to certain exceptions, the
Indenture or the Notes may be amended or supplemented with the consent of the
Holders of at least a majority in principal amount of the then outstanding
Notes, and any existing default or compliance with any provision of the
Indenture or the Notes may be waived with the consent of the Holders of a
majority in principal amount of the then outstanding Notes. Without the consent
of any Holder of Notes, the Indenture or the Notes may be amended or
supplemented to cure any ambiguity, defect or inconsistency, to provide for
uncertificated Notes in addition to or in place of certificated Notes, to
provide for the assumption of the Company's obligations to Holders of the Notes
in case of a merger or consolidation, to make any change that would provide any
additional rights or benefits to the Holders of the Notes or that does not
adversely affect the legal rights under the Indenture of any such Holder, or to
comply with the requirements of the Securities and Exchange Commission in order
to effect or maintain the qualification of the Indenture under the Trust
Indenture Act.
12. Defaults and Remedies. Events of Default include: (i) default for 30
days in the payment when due of interest on the Notes; (ii) default in payment
when due of principal of or premium,
A-4
if any, on the Notes, (iii) failure by the Company or any of its Subsidiaries to
comply with Section 3.09, 4.10, 4.15 or 5.01 of the Indenture; (iv) failure by
the Company or any of its Subsidiaries for 30 days after notice to the Company
by the Trustee or the Holders of at least 25% in principal amount of the Notes
then outstanding to comply with certain other agreements in the Indenture or the
Notes; (v) default under certain other agreements relating to Indebtedness of
the Company which default (a) is caused by a failure to pay principal of or
premium, if any, or interest on such Indebtedness prior to the expiration of the
grace period provided in such Indebtedness on the date of such default or (b)
results in the acceleration of such Indebtedness prior to its express maturity;
(vi) certain final judgments for the payment of money that remain undischarged
for a period of 60 days; and (vii) certain events of bankruptcy or insolvency
with respect to the Company or any of its Restricted Subsidiaries. If any Event
of Default occurs and is continuing, the Trustee or the Holders of at least 25%
in principal amount of the then outstanding Notes may declare all the Notes to
be due and payable. Notwithstanding the foregoing, in the case of an Event of
Default arising from certain events of bankruptcy or insolvency, all outstanding
Notes will become due and payable without further action or notice. Holders may
not enforce the Indenture or the Notes except as provided in the Indenture.
Subject to certain limitations, Holders of a majority in principal amount of the
then outstanding Notes may direct the Trustee in its exercise of any trust or
power. The Trustee may withhold from Holders of the Notes notice of any
continuing Default or Event of Default (except a Default or Event of Default
relating to the payment of principal or interest) if it determines that
withholding notice is in their interest. The Holders of a majority in aggregate
principal amount of the Notes then outstanding by notice to the Trustee may on
behalf of the Holders of all of the Notes waive any existing Default or Event of
Default and its consequences under the Indenture except a continuing Default or
Event of Default in the payment of interest on, or the principal of, the Notes.
The Company is required to deliver to the Trustee annually a statement regarding
compliance with the Indenture, and the Company is required upon becoming aware
of any Default or Event of Default, to deliver to the Trustee a statement
specifying such Default or Event of Default.
13. Trustee Dealings with Company. The Trustee, in its individual or any
other capacity, may make loans to, accept deposits from, 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.
14. No Recourse Against Others. A director, officer, employee,
incorporator or stockholder, of the Company, as such, shall not have any
liability for any obligations of the Company under the Notes or the Indenture or
for any claim based on, in respect of, or by reason of, such obligations or
their creation. Each Holder by accepting a Note waives and releases all such
liability. The waiver and release are part of the consideration for the
issuance of the Notes.
15. Authentication. This Note shall not be valid until authenticated by
the manual signature of the Trustee or an authenticating agent.
16. Abbreviations. Customary abbreviations may be used in the name of a
Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (=
tenants by the entireties), JT TEN (= joint tenants with right of survivorship
and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts
to Minors Act).
17. CUSIP Numbers. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Company has caused
CUSIP numbers to be printed on the Notes and the Trustee may use CUSIP numbers
in notices of redemption as a convenience to Holders.
A-5
No representation is made as to the accuracy of such numbers either as printed
on the Notes or as contained in any notice of redemption and reliance may be
placed only on the other identification numbers placed thereon.
The Company will furnish to any Holder upon written request and without charge a
copy of the Indenture. Requests may be made to: Crown Castle International
Corp., 510 Bering Drive, Suite 500, Houston, Texas 77057, Attention: Chief
Financial Officer.
A-6
Assignment Form
To assign this Note, fill in the form below:
(I) or (we) assign and transfer this Note to:
-----------------------------------
(Insert assignee's legal name)
- --------------------------------------------------------------------------------
(Insert assignee's soc. sec. or tax I.D. no.)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
and irrevocably appoint
--------------------------------------------------------
to transfer this Note on the books of the Company. The agent may substitute
another to act for him.
Date:
-----------------
Your Signature:
----------------------------
(Sign exactly as your name appears on
the face of this Note)
Signature Guarantee*:
-----------------------
* Participant in a recognized Signature Guarantee Medallion Program (or other
signature guarantor acceptable to the Trustee).
A-7
Option of Holder to Elect Purchase
If you want to elect to have this Note purchased by the Company pursuant
to Section 4.10 or 4.15 of the Indenture, check the appropriate box below:
[ ] Section 4.10 [ ] Section 4.15
If you want to elect to have only part of the Note purchased by the
Company pursuant to Section 4.10 or Section 4.15 of the Indenture, state the
amount you elect to have purchased:
$
---------------------
Date:
-------------------
Your Signature:
-------------------------------
(Sign exactly as your name appears on
the face of this Note)
Tax Identification No.:
---------------------------
Signature Guarantee*:
------------------------
* Participant in a recognized Signature Guarantee Medallion Program (or other
signature guarantor acceptable to the Trustee).
A-8
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE*
The following exchanges of a part of this Global Note for an interest in
another Global Note or for a Definitive Note, or exchanges of a part of another
Global Note or Definitive Note for an interest in this Global Note, have been
made:
Principal Amount of Signature of
Amount of decrease Amount of increase this Global Note authorized officer
in in following such of
Principal Amount of Principal Amount of decrease Trustee or Note
Date of Exchange this Global Note this Global Note (or increase) Custodian
- ------------------- -------------------- -------------------- ---------------------- -------------------
* This schedule should be included only if the Note is issued in global form.
- --------------------------------------------------------------------------------
A-9
EXHIBIT B
FORM OF SUPPLEMENTAL INDENTURE
TO BE DELIVERED BY SUBSEQUENT GUARANTORS
Supplemental Indenture (this "Supplemental Indenture"), dated as of
________, among __________________ (the "Guaranteeing Subsidiary"), a
subsidiary of CROWN CASTLE INTERNATIONAL CORP. (or its permitted successor), a
Delaware corporation (the "Company"), the Company, the other Guarantors (as
defined in the Indenture referred to herein) and UNITED STATES TRUST COMPANY OF
NEW YORK, as trustee under the Indenture referred to below (the "Trustee").
W I T N E S S E T H
WHEREAS, the Company has heretofore executed and delivered to the Trustee
an indenture (the "Indenture"), dated as of May 17, 1999 providing for the
issuance of an aggregate principal amount of up to $330.0 million of 9% Senior
Notes due 2011 (the "Notes");
WHEREAS, the Indenture provides that under certain circumstances the
Guaranteeing Subsidiary shall execute and deliver to the Trustee a supplemental
indenture pursuant to which the Guaranteeing Subsidiary shall unconditionally
guarantee all of the Company's Obligations under the Notes and the Indenture on
the terms and conditions set forth herein (the "Note Guarantee"); and
WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee is
authorized to execute and deliver this Supplemental Indenture.
NOW THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt of which is hereby acknowledged, the
Guaranteeing Subsidiary and the Trustee mutually covenant and agree for the
equal and ratable benefit of the Holders of the Notes as follows:
1. Capitalized Terms. Capitalized terms used herein without definition
shall have the meanings assigned to them in the Indenture.
2. Agreement to Guarantee. The Guaranteeing Subsidiary hereby agrees as
follows:
(a) Along with all Guarantors named in the Indenture, to jointly and
severally Guarantee to each Holder of a Note authenticated and
delivered by the Trustee and to the Trustee and its successors
and assigns, irrespective of the validity and enforceability of
the Indenture, the Notes or the obligations of the Company
hereunder or thereunder, that:
(i) the principal of and interest on the Notes will be promptly
paid in full when due, whether at maturity, by acceleration,
redemption or otherwise, and interest on the overdue
principal of and interest on the Notes, if any, if lawful,
and all other obligations of the Company to the Holders or
the Trustee hereunder or thereunder will be promptly paid in
full or performed, all in accordance with the terms hereof
and thereof; and
B-1
(ii) in case of any extension of time of payment or renewal of
any Notes or any of such other obligations, that same will
be promptly paid in full when due or performed in accordance
with the terms of the extension or renewal, whether at
stated maturity, by acceleration or otherwise. Failing
payment when due of any amount so guaranteed or any
performance so guaranteed for whatever reason, the
Guarantors shall be jointly and severally obligated to pay
the same immediately.
(b) The obligations hereunder shall be unconditional, irrespective of
the validity, regularity or enforceability of the Notes or the
Indenture, the absence of any action to enforce the same, any
waiver or consent by any Holder of the Notes with respect to any
provisions hereof or thereof, the recovery of any judgment
against the Company, any action to enforce the same or any other
circumstance which might otherwise constitute a legal or
equitable discharge or defense of a guarantor.
(c) The following is hereby waived: diligence, presentment, demand
of payment, filing of claims with a court in the event of
insolvency or bankruptcy of the Company, any right to require a
proceeding first against the Company, protest, notice and all
demands whatsoever.
(d) This Note Guarantee shall not be discharged except by complete
performance of the obligations contained in the Notes and the
Indenture.
(e) If any Holder or the Trustee is required by any court or
otherwise to return to the Company, the Guarantors, or any
Custodian, Trustee, liquidator or other similar official acting
in relation to either the Company or the Guarantors, any amount
paid by either to the Trustee or such Holder, this Note
Guarantee, to the extent theretofore discharged, shall be
reinstated in full force and effect.
(f) The Guaranteeing Subsidiary shall not be entitled to any right of
subrogation in relation to the Holders in respect of any
obligations guaranteed hereby until payment in full of all
obligations guaranteed hereby.
(g) As between the Guarantors, on the one hand, and the Holders and
the Trustee, on the other hand, (x) the maturity of the
obligations guaranteed hereby may be accelerated as provided in
Article 6 of the Indenture for the purposes of this Note
Guarantee, notwithstanding any stay, injunction or other
prohibition preventing such acceleration in respect of the
obligations guaranteed hereby, and (y) in the event of any
declaration of acceleration of such obligations as provided in
Article 6 of the Indenture, such obligations (whether or not due
and payable) shall forthwith become due and payable by the
Guarantors for the purpose of this Note Guarantee.
B-2
(h) The Guarantors shall have the right to seek contribution from any
non-paying Guarantor so long as the exercise of such right does
not impair the rights of the Holders under the Guarantee.
(i) Pursuant to Section 10.02 of the Indenture, after giving effect
to any maximum amount and any other contingent and fixed
liabilities that are relevant under any applicable Bankruptcy or
fraudulent conveyance laws, and after giving effect to any
collections from, rights to receive contribution from or payments
made by or on behalf of any other Guarantor in respect of the
obligations of such other Guarantor under Article 10 of the
Indenture shall result in the obligations of such Guarantor under
its Note Guarantee not constituting a fraudulent transfer or
conveyance.
3 Execution and Delivery. Each Guaranteeing Subsidiary agrees that the
Note Guarantees shall remain in full force and effect notwithstanding any
failure to endorse on each Note a notation of such Note Guarantee.
4. Guaranteeing Subsidiary May Consolidate, Etc. on Certain Terms.
(a) The Guaranteeing Subsidiary may not consolidate with or merge with or
into (whether or not such Guarantor is the surviving Person) another
corporation, Person or entity whether or not affiliated with such
Guarantor unless:
(i) subject to Section 10.05 of the Indenture, the Person formed by
or surviving any such consolidation or merger (if other than a
Guarantor or the Company) unconditionally assumes all the
obligations of such Guarantor, pursuant to a supplemental
indenture in form and substance reasonably satisfactory to the
Trustee, under the Notes, the Indenture and the Note Guarantee on
the terms set forth herein or therein; and
(ii) immediately after giving effect to such transaction, no Default
or Event of Default exists.
(b) In case of any such consolidation, merger, sale or conveyance and upon
the assumption by the successor corporation, by supplemental
indenture, executed and delivered to the Trustee and satisfactory in
form to the Trustee, of the Note Guarantee endorsed upon the Notes and
the due and punctual performance of all of the covenants and
conditions of the Indenture to be performed by the Guarantor, such
successor corporation shall succeed to and be substituted for the
Guarantor with the same effect as if it had been named herein as a
Guarantor. Such successor corporation thereupon may cause to be
signed any or all of the Note Guarantees to be endorsed upon all of
the Notes issuable hereunder which theretofore shall not have been
signed by the Company and delivered to the Trustee. All the Note
Guarantees so issued shall in all respects have the same legal rank
and benefit under the Indenture as the Note Guarantees theretofore and
thereafter issued in accordance with the terms of the Indenture as
though all of such Note Guarantees had been issued at the date of the
execution hereof.
B-3
(c) Except as set forth in Articles 4 and 5 of the Indenture, and
notwithstanding clauses (a) and (b) above, nothing contained in the
Indenture or in any of the Notes shall prevent any consolidation or
merger of a Guarantor with or into the Company or another Guarantor,
or shall prevent any sale or conveyance of the property of a Guarantor
as an entirety or substantially as an entirety to the Company or
another Guarantor.
5. Releases.
(a) In the event of a sale or other disposition of all of the assets of
any Guarantor, by way of merger, consolidation or otherwise, or a sale
or other disposition of all to the capital stock of any Guarantor,
then such Guarantor (in the event of a sale or other disposition, by
way of merger, consolidation or otherwise, of all of the capital stock
of such Guarantor) or the corporation acquiring the property (in the
event of a sale or other disposition of all or substantially all of
the assets of such Guarantor) will be released and relieved of any
obligations under its Note Guarantee; provided that the Net Proceeds
of such sale or other disposition are applied in accordance with the
applicable provisions of the Indenture, including without limitation
Section 4.10 of the Indenture. Upon delivery by the Company to the
Trustee of an Officers' Certificate and an Opinion of Counsel to the
effect that such sale or other disposition was made by the Company in
accordance with the provisions of the Indenture, including without
limitation Section 4.10 of the Indenture, the Trustee shall execute
any documents reasonably required in order to evidence the release of
any Guarantor from its obligations under its Note Guarantee.
(b) Any Guarantor not released from its obligations under its Note
Guarantee shall remain liable for the full amount of principal of and
interest on the Notes and for the other obligations of any Guarantor
under the Indenture as provided in Article 10 of the Indenture.
6. No Recourse Against Others. No past, present or future director,
officer, employee, incorporator, stockholder or agent of the Guaranteeing
Subsidiary, as such, shall have any liability for any obligations of the Company
or any Guaranteeing Subsidiary under the Notes, any Note Guarantees, the
Indenture or this Supplemental Indenture or for any claim based on, in respect
of, or by reason of, such obligations or their creation. Each Holder of the
Notes by accepting a Note waives and releases all such liability. The waiver
and release are part of the consideration for issuance of the Notes. Such
waiver may not be effective to waive liabilities under the federal securities
laws and it is the view of the Commission that such a waiver is against public
policy.
7. NEW YORK LAW TO GOVERN. THE INTERNAL LAW OF THE STATE OF NEW YORK
SHALL GOVERN AND BE USED TO CONSTRUE THIS SUPPLEMENTAL INDENTURE BUT WITHOUT
GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT
THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
8. Counterparts The parties may sign any number of copies of this
Supplemental Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement.
9. Effect of Headings. The Section headings herein are for convenience
only and shall not affect the construction hereof.
B-4
10. The Trustee. The Trustee shall not be responsible in any manner
whatsoever for or in respect of the validity or sufficiency of this Supplemental
Indenture or for or in respect of the recitals contained herein, all of which
recitals are made solely by the Guaranteeing Subsidiary and the Company.
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed and attested, all as of the date first above
written.
Dated:
--------------
[Guaranteeing Subsidiary]
By:
----------------------------------------
Name:
Title:
Crown Castle International Corp.
By:
----------------------------------------
Name:
Title:
[Other Guarantors]
By:
----------------------------------------
Name:
Title
United States Trust Company of New York
as Trustee
By:
----------------------------------------
Name:
Title:
B-5
EXHIBIT C
FORM OF NOTATION OF GUARANTEE
For value received, each Guarantor (which term includes any successor
Person under the Indenture) has, jointly and severally, unconditionally
guaranteed, to the extent set forth in the Indenture and subject to the
provisions in the Indenture dated as of May 17, 1999 (the "Indenture") among
CROWN CASTLE INTERNATIONAL CORP. and UNITED STATES TRUST COMPANY OF NEW YORK, as
trustee (the "Trustee"), (a) the due and punctual payment of the principal of,
premium, if any, and interest on the Notes (as defined in the Indenture),
whether at maturity, by acceleration, redemption or otherwise, the due and
punctual payment of interest on overdue principal and premium, and, to the
extent permitted by law, interest, and the due and punctual performance of all
other obligations of the Company to the Holders or the Trustee all in accordance
with the terms of the Indenture and (b) in case of any extension of time of
payment or renewal of any Notes or any of such other obligations, that the same
will be promptly paid in full when due or performed in accordance with the terms
of the extension or renewal, whether at stated maturity, by acceleration or
otherwise. The obligations of the Guarantors to the Holders of Notes and to the
Trustee pursuant to the Note Guarantee and the Indenture are expressly set forth
in Article 10 of the Indenture and reference is hereby made to the Indenture for
the precise terms of the Note Guarantee. Each Holder of a Note, by accepting
the same, agrees to and shall be bound by such provisions.
[Name of Guarantor(s)]
By:
---------------------------------------
Name:
Title:
C-1
EXHIBIT 4.13
================================================================================
EXECUTION COPY
CROWN CASTLE INTERNATIONAL CORP.
ISSUER
10-3/8 % SENIOR DISCOUNT NOTES DUE 2011
------------------------------
INDENTURE
Dated as of May 17, 1999
------------------------------
United States Trust Company of New York
Trustee
------------------------------
================================================================================
CROSS-REFERENCE TABLE*
Trust Indenture
Act Section Indenture Section
310 (a)(1)............................................................. 7.10
(a)(2)............................................................. 7.10
(a)(3)............................................................. N.A.
(a)(4)............................................................. N.A.
(a)(5)............................................................. 7.10
(b)................................................................ 7.10
(c)................................................................ N.A.
311 (a)................................................................ 7.11
(b)................................................................ 7.11
(c)................................................................ N.A.
312 (a)................................................................ 2.05
(b)................................................................ 11.03
(c)................................................................ 11.03
313 (a)................................................................ 7.06
(b)(1)............................................................. N.A.
(b)(2)............................................................. 7.07
(c)................................................................ 7.06;11.02
(d)................................................................ 7.06
314 (a)................................................................ 4.03;11.02
(b)................................................................ N.A.
(c)(1)............................................................. 11.04
(c)(2)............................................................. 11.04
(c)(3)............................................................. N.A.
(d)................................................................ N.A.
(e)................................................................ 11.05
(f)................................................................ N.A.
315 (a)................................................................ 7.01
(b)................................................................ 7.05,11.02
(c)................................................................ 7.01
(d)................................................................ 7.01
(e)................................................................ 6.11
316 (a) (last sentence)................................................ 2.09
(a)(1)(A).......................................................... 6.05
(a)(1)(B).......................................................... 6.04
(a)(2)............................................................. N.A.
(b)................................................................ 6.07
(c)................................................................ 2.12
317 (a)(1)............................................................. 6.08
(a)(2)............................................................. 6.09
(b)................................................................ 2.04
318 (a)................................................................ 11.01
(b)................................................................ N.A.
(c)................................................................ 11.01
N.A. means not applicable.
* This Cross Reference Table is not part of the Indenture.
TABLE OF CONTENTS
Page
ARTICLE 1 DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01. Definitions........................................................................................1
Section 1.02. Other Definitions..................................................................................19
Section 1.03. Incorporation by Reference of Trust Indenture Act..................................................19
Section 1.04. Rules of Construction..............................................................................20
ARTICLE 2 THE NOTES
Section 2.01. Form and Dating....................................................................................20
Section 2.02. Execution and Authentication.......................................................................21
Section 2.03. Registrar and Paying Agent.........................................................................21
Section 2.04. Paying Agent to Hold Money in Trust................................................................22
Section 2.05. Holder Lists.......................................................................................22
Section 2.06. Transfer and Exchange..............................................................................22
Section 2.07. Replacement Notes..................................................................................25
Section 2.08. Outstanding Notes..................................................................................26
Section 2.09. Treasury Notes.....................................................................................26
Section 2.10. Temporary Notes....................................................................................26
Section 2.11. Cancellation.......................................................................................26
Section 2.12. Defaulted Interest.................................................................................27
ARTICLE 3 REDEMPTION AND PREPAYMENT
Section 3.01. Notices to Trustee.................................................................................27
Section 3.02. Selection of Notes to Be Redeemed..................................................................27
Section 3.03. Notice of Redemption...............................................................................28
Section 3.04. Effect of Notice of Redemption.....................................................................28
Section 3.05. Deposit of Redemption Price........................................................................28
Section 3.06. Notes Redeemed in Part.............................................................................29
Section 3.07. Optional Redemption................................................................................29
Section 3.08. Mandatory Redemption...............................................................................30
Section 3.09. Offer to Purchase by Application of Excess Proceeds................................................30
ARTICLE 4 COVENANTS
Section 4.01. Payment of Notes...................................................................................31
Section 4.02. Maintenance of Office or Agency....................................................................32
Section 4.03. Reports............................................................................................32
Section 4.04. Compliance Certificate.............................................................................33
Section 4.05. Taxes..............................................................................................34
Section 4.06. Stay, Extension and Usury Laws.....................................................................34
Section 4.07. Restricted Payments................................................................................34
Section 4.08. Dividend and Other Payment Restrictions Affecting Subsidiaries.....................................37
Section 4.09. Incurrence of Indebtedness and Issuance of Preferred Stock.........................................39
Section 4.10. Asset Sales........................................................................................42
Section 4.11. Transactions with Affiliates......................................................................43
Section 4.12. Liens..............................................................................................44
Section 4.13. Business Activities................................................................................44
Section 4.14. Corporate Existence................................................................................44
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Section 4.15. Offer to Repurchase Upon Change of Control.........................................................44
Section 4.16. Sale and Leaseback Transactions....................................................................46
Section 4.17. Limitation on Issuances and Sales of Capital Stock of Restricted Subsidiaries......................46
Section 4.18. Limitation on Issuances of Guarantees of Indebtedness..............................................47
ARTICLE 5 SUCCESSORS
Section 5.01. Merger, Consolidation, or Sale of Assets...........................................................47
Section 5.02. Successor Corporation Substituted..................................................................48
ARTICLE 6 DEFAULTS AND REMEDIES
Section 6.01. Events of Default..................................................................................49
Section 6.02. Acceleration.......................................................................................50
Section 6.03. Other Remedies.....................................................................................50
Section 6.04. Waiver of Past Defaults............................................................................50
Section 6.05. Control by Majority................................................................................51
Section 6.06. Limitation on Suits................................................................................51
Section 6.07. Rights of Holders of Notes to Receive Payment......................................................51
Section 6.08. Collection Suit by Trustee.........................................................................51
Section 6.09. Trustee May File Proofs of Claim...................................................................51
Section 6.10. Priorities.........................................................................................52
Section 6.11. Undertaking for Costs..............................................................................52
ARTICLE 7 TRUSTEE
Section 7.01. Duties of Trustee..................................................................................53
Section 7.02. Rights of Trustee..................................................................................54
Section 7.03. Individual Rights of Trustee.......................................................................54
Section 7.04. Trustee's Disclaimer...............................................................................54
Section 7.05. Notice of Defaults.................................................................................54
Section 7.06. Reports by Trustee to Holders of the Notes.........................................................55
Section 7.07. Compensation and Indemnity.........................................................................55
Section 7.08. Replacement of Trustee.............................................................................56
Section 7.09. Successor Trustee by Merger, etc...................................................................57
Section 7.10. Eligibility; Disqualification......................................................................57
Section 7.11. Preferential Collection of Claims Against Company..................................................57
ARTICLE 8 LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.01. Option to Effect Legal Defeasance or Covenant Defeasance...........................................57
Section 8.02. Legal Defeasance and Discharge.....................................................................57
Section 8.03. Covenant Defeasance................................................................................58
Section 8.04. Conditions to Legal or Covenant Defeasance.........................................................58
Section 8.05. Deposited Money and Government Securities to be Held in Trust; Other Miscellaneous Provisions......59
Section 8.06. Repayment to Company...............................................................................60
Section 8.07. Reinstatement......................................................................................60
ARTICLE 9 AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.01. Without Consent of Holders of Notes................................................................61
Section 9.02. With Consent of Holders of Notes...................................................................61
Section 9.03. Compliance with Trust Indenture Act................................................................63
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Section 9.04. Revocation and Effect of Consents..................................................................63
Section 9.05. Notation on or Exchange of Notes...................................................................63
Section 9.06. Trustee to Sign Amendments, etc....................................................................63
ARTICLE 10 NOTE GUARANTEES
Section 10.01. Guarantee.........................................................................................63
Section 10.02. Limitation on Guarantor Liability.................................................................64
Section 10.03. Execution and Delivery of Note Guarantee..........................................................65
Section 10.04. Guarantors May Consolidate, etc., on Certain Terms................................................65
Section 10.05. Releases Following Sale of Assets.................................................................66
ARTICLE 11 MISCELLANEOUS
Section 11.01. Trust Indenture Act Controls......................................................................66
Section 11.02. Notices...........................................................................................66
Section 11.03. Communication by Holders of Notes with Other Holders of Notes.....................................68
Section 11.04. Certificate and Opinion as to Conditions Precedent................................................68
Section 11.05. Statements Required in Certificate or Opinion.....................................................68
Section 11.06. Rules by Trustee and Agents.......................................................................68
Section 11.07. No Personal Liability of Directors, Officers, Employees and Stockholders..........................68
Section 11.08. Governing Law.....................................................................................69
Section 11.09. No Adverse Interpretation of Other Agreements.....................................................69
Section 11.10. Successors........................................................................................69
Section 11.11. Severability......................................................................................69
Section 11.12. Counterpart Originals.............................................................................69
Section 11.13. Table of Contents, Headings, etc..................................................................69
EXHIBITS
Exhibit A FORM OF NOTE
Exhibit B FORM OF NOTATION OF GUARANTEE
Exhibit C FORM OF SUPPLEMENTAL INDENTURE TO BE DELIVERED BY SUBSEQUENT GUARANTORS
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INDENTURE dated as of May 17, 1999 between Crown Castle International
Corp., a Delaware corporation (the "Company"), and United States Trust Company
of New York, as trustee (the "Trustee").
The Company and the Trustee agree as follows for the benefit of each other
and for the equal and ratable benefit of the Holders of the 10-3/8% Senior
Discount Notes due 2011 (the "Notes"):
ARTICLE 1
DEFINITIONS AND INCORPORATION
BY REFERENCE
Section 1.01. Definitions.
"Accreted Value" means, as of any date of determination the sum of:
(1) the initial Accreted Value (which is $603.39 per $1,000 in principal
amount at maturity of Notes); and
(2) the portion of the excess of the principal amount at maturity of each
note over such initial Accreted Value which shall have been amortized
through such date, such amount to be so amortized on a daily basis and
compounded semiannually on each May 15 and November 15 at the rate of 10-
3/8% per annum from the date of original issuance of the Notes through
the date of determination computed on the basis of a 360-day year of
twelve 30-day months.
The Accreted Value of any Note on or after the Full Accretion Date shall be
equal to 100% of its stated principal amount at maturity.
"Acquired Debt" means, with respect to any specified Person:
(1) Indebtedness of any other Person existing at the time such other Person
is merged with or into or became a Subsidiary of such specified Person,
including, without limitation, Indebtedness incurred in connection
with, or in contemplation of, such other Person merging with or into or
becoming a Subsidiary of such specified Person; and
(2) Indebtedness secured by a Lien encumbering any asset acquired by such
specified Person.
''Adjusted Consolidated Cash Flow'' means, as of any date of determination,
the sum of:
(1) the Consolidated Cash Flow of the Company for the four most recent full
fiscal quarters ending immediately prior to such date for which
internal financial statements are available, less the Company's Tower
Cash Flow for such four-quarter period; plus
(2) the product of four times the Company's Tower Cash Flow for the most
recent fiscal quarter for which internal financial statements are
available.
For purposes of making the computation referred to above:
(1) acquisitions that have been made by the Company or any of its Restricted
Subsidiaries, including through mergers or consolidations and including
any related financing transactions, during the reference period or
subsequent to such reference period and on or prior to the calculation
date shall be deemed to have occurred on the first day of the reference
period and
Consolidated Cash Flow for such reference period shall be calculated
without giving effect to clause (2) of the proviso set forth in the
definition of Consolidated Net Income;
(2) the Consolidated Cash Flow attributable to discontinued operations, as
determined in accordance with GAAP, and operations or businesses disposed
of prior to the calculation date, shall be excluded; and
(3) the corporate development expense of the Company and its Restricted
Subsidiaries calculated in a manner consistent with the audited financial
statements of the Company included in the Prospectus shall be added to
Consolidated Cash Flow to the extent it was included in computing
Consolidated Net Income.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For purposes of this definition, ''control''
(including, with correlative meanings, the terms ''controlling,'' ''controlled
by'' and ''under common control with''), as used with respect to any Person,
shall mean the possession, directly or indirectly, of the power to direct or
cause the direction of the management or policies of such Person, whether
through the ownership of voting securities, by agreement or otherwise; provided
that beneficial ownership of 10% or more of the Voting Stock of a Person shall
be deemed to be control.
"Agent" means any Registrar, Paying Agent or co-registrar.
"Applicable Procedures" means, with respect to any transfer or exchange of
or for beneficial interests in any Global Note, the rules and procedures of the
Depositary, Euroclear and Cedel that apply to such transfer or exchange.
"Asset Sale" means:
(1) the sale, lease, conveyance or other disposition of any assets or rights
(including, without limitation, by way of a sale and leaseback); provided
that the sale, lease, conveyance or other disposition of all or
substantially all of the assets of the Company and its Subsidiaries taken
as a whole will be governed by the Section 4.15 and Article 5 hereof and
not by Section 4.10 hereof; and
(2) the issue or sale by the Company or any of its Restricted Subsidiaries of
Equity Interests of any of the Company's Subsidiaries (other than
directors' qualifying shares or shares required by applicable law to be
held by a Person other than the Company or a Restricted Subsidiary), in
the case of either clause (1) or (2), whether in a single transaction or
a series of related transactions:
(a) that have a fair market value in excess of $1.0 million; or
(b) for net proceeds in excess of $1.0 million.
Notwithstanding the foregoing, the following items shall not be deemed to be
Asset Sales:
(1) a transfer of assets by the Company to a Restricted Subsidiary or by a
Restricted Subsidiary to the Company or to another Restricted Subsidiary;
(2) an issuance of Equity Interests by a Subsidiary to the Company or to
another Restricted Subsidiary;
(3) a transfer or issuance of Equity Interests of an Unrestricted Subsidiary
to an Unrestricted Subsidiary; provided, however, that such transfer or
issuance does not result in a decrease in the
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percentage of ownership of the voting securities of such transferee
Unrestricted Subsidiary that are collectively held by the Company and its
Subsidiaries;
(4) a Restricted Payment that is permitted by Section 4.07 hereof;
(5) grants of leases or licenses in the ordinary course of business; and
(6) disposals of Cash Equivalents.
"Attributable Debt" in respect of a sale and leaseback transaction means,
at the time of determination, the present value (discounted at the rate of
interest implicit in such transaction, determined in accordance with GAAP) of
the obligation of the lessee for net rental payments during the remaining term
of the lease included in such sale and leaseback transaction (including any
period for which such lease has been extended or may, at the option of the
lessor, be extended).
"Bankruptcy Law" means Title 11, U.S. Code or any similar federal or state
law for the relief of debtors.
"Board of Directors" means the Board of Directors of the Company, or any
authorized committee of the Board of Directors.
"Broker-Dealer" means any broker or dealer registered under the Exchange
Act.
"Business Day" means any day other than a Legal Holiday.
"Capital Lease Obligation" means, at the time any determination thereof is
to be made, the amount of the liability in respect of a capital lease that would
at such time be required to be capitalized on a balance sheet in accordance with
GAAP.
"Capital Stock" means:
(1) in the case of a corporation, corporate stock;
(2) in the case of an association or business entity, any and all shares,
interests, participations, rights or other equivalents (however
designated) of corporate stock;
(3) in the case of a partnership or limited liability company, partnership
or membership interests (whether general or limited); and
(4) any other interest or participation that confers on a Person the right
to receive a share of the profits and losses of, or distributions of
assets of, the issuing Person.
"Cash Equivalents" means:
(1) United States dollars;
(2) securities issued or directly and fully guaranteed or insured by the
United States government or any agency or instrumentality thereof
(provided that the full faith and credit of the United States is
pledged in support thereof) having maturities of not more than six
months from the date of acquisition;
3
(3) certificates of deposit and eurodollar time deposits with maturities of
six months or less from the date of acquisition, bankers' acceptances
with maturities not exceeding six months and overnight bank deposits,
in each case with any lender party to the Senior Credit Facility or
with any domestic commercial bank having capital and surplus in excess
of $500.0 million and a Thompson Bank Watch Rating of ''B'' or better;
(4) repurchase obligations with a term of not more than seven days for
underlying securities of the types described in clauses (2) and (3)
above entered into with any financial institution meeting the
qualifications specified in clause (3) above;
(5) commercial paper having the highest rating obtainable from Moody's
Investors Service, Inc. or Standard & Poor's Ratings Group and in each
case maturing within six months after the date of acquisition; and
(6) money market funds at least 95% of the assets of which constitute Cash
Equivalents of the kinds described in clauses (1)-(5) of this
definition.
"CCAIC" means CCA Investment Corp., which is an indirect wholly owned
Subsidiary of the Company and was formed to hold the Company's Equity Interests
in Crown Atlantic Holding Company LLC.
"Cedel" means Cedel Bank, S.A.
"Change of Control" means the occurrence of any of the following:
(1) the sale, lease, transfer, conveyance or other disposition (other than
by way of merger or consolidation), in one or a series of related
transactions, of all or substantially all of the assets of the Company
and its Restricted Subsidiaries, taken as a whole to any ''person'' (as
such term is used in Section 13(d)(3) of the Exchange Act) other than a
Principal or a Related Party of a Principal;
(2) the adoption of a plan relating to the liquidation or dissolution of
the Company;
(3) the consummation of any transaction (including, without limitation, any
merger or consolidation) the result of which is that any ''person'' (as
defined above), other than the Principals and their Related Parties,
becomes the ''beneficial owner'' (as such term is defined in Rule 13d-3
and Rule 13d-5 under the Exchange Act, except that a person shall be
deemed to have ''beneficial ownership'' of all securities that such
person has the right to acquire, whether such right is currently
exercisable or is exercisable only upon the occurrence of a subsequent
condition), directly or indirectly, of more than 50% of the Voting
Stock of the Company (measured by voting power rather than number of
shares); provided that transfers of Equity Interests in the Company
between or among the beneficial owners of the Company's Equity
Interests and/or Equity Interests in CTSH, in each case as of the date
hereof, will not be deemed to cause a Change of Control under this
clause (3) so long as no single Person together with its Affiliates
acquires a beneficial interest in more of the Voting Stock of the
Company than is at the time collectively beneficially owned by the
Principals and their Related Parties;
(4) the first day on which a majority of the members of the Board of
Directors are not Continuing Directors; or
4
(5) the Company consolidates with, or merges with or into, any Person, or
any Person consolidates with, or merges with or into, the Company, in
any such event pursuant to a transaction in which any of the
outstanding Voting Stock of the Company is converted into or exchanged
for cash, securities or other property, other than any such transaction
where:
(a) the Voting Stock of the Company outstanding immediately prior to
such transaction is converted into or exchanged for Voting Stock
(other than Disqualified Stock) of the surviving or transferee
Person constituting a majority of the outstanding shares of such
Voting Stock of such surviving or transferee Person (immediately
after giving effect to such issuance); or
(b) the Principals and their Related Parties own a majority of such
outstanding shares after such transaction.
"Company" means Crown Castle International Corp., and any and all
successors thereto.
"Completed Tower" means any wireless transmission tower owned or managed by
the Company or any of its Restricted Subsidiaries that, as of any date of
determination:
(1) has at least one wireless communications or broadcast tenant that has
executed a definitive lease with the Company or any of its Restricted
Subsidiaries, which lease is producing revenue with respect to the
tower as of the date of determination; and
(2) has capacity for at least two tenants in addition to the tenant
referred to in clause (1) of this definition.
"Consolidated Cash Flow" means, with respect to any Person for any period,
the Consolidated Net Income of such Person for such period; plus
(1) provision for taxes based on income or profits of such Person and its
Restricted Subsidiaries for such period, to the extent that such
provision for taxes was included in computing such Consolidated Net
Income; plus
(2) consolidated interest expense of such Person and its Restricted
Subsidiaries for such period, whether paid or accrued and whether or
not capitalized (including, without limitation, amortization of debt
issuance costs and original issue discount, non-cash interest payments,
the interest component of any deferred payment obligations, the
interest component of all payments associated with Capital Lease
Obligations, commissions, discounts and other fees and charges incurred
in respect of letters of credit or bankers' acceptance financings, and
net payments (if any) pursuant to Hedging Obligations), to the extent
that any such expense was deducted in computing such Consolidated Net
Income; plus
(3) depreciation, amortization (including amortization of goodwill and
other intangibles and other non-cash expenses (excluding any such non-
cash expense to the extent that it represents an accrual of or reserve
for cash expenses in any future period) of such Person and its
Restricted Subsidiaries for such period to the extent that such
depreciation, amortization and other non-cash expenses were deducted in
computing such Consolidated Net Income; minus
5
(4) non-cash items increasing such Consolidated Net Income for such period
(excluding any items that were accrued in the ordinary course of
business),
in each case on a consolidated basis and determined in accordance with GAAP.
"Consolidated Indebtedness" means, with respect to any Person as of any
date of determination, the sum, without duplication, of
(1) the total amount of Indebtedness of such Person and its Restricted
Subsidiaries; plus
(2) the total amount of Indebtedness of any other Person, to the extent
that such Indebtedness has been Guaranteed by the referent Person or
one or more of its Restricted Subsidiaries; plus
(3) the aggregate liquidation value of all Disqualified Stock of such
Person and all preferred stock of Restricted Subsidiaries of such
Person, in each case, determined on a consolidated basis in accordance
with GAAP.
"Consolidated Interest Expense" means, with respect to any Person for any
period:
(1) the consolidated interest expense of such Person and its Restricted
Subsidiaries for such period determined in accordance with GAAP,
whether paid or accrued and whether or not capitalized (including,
without limitation, amortization of debt issuance costs and original
issue discount, non-cash interest payments, the interest component of
any deferred payment obligations, the interest component of all
payments associated with Capital Lease Obligations, imputed interest
with respect to Attributable Debt, commissions, discounts and other
fees and charges incurred in respect of letter of credit or bankers'
acceptance financings, and net payments, if any, pursuant to Hedging
Obligations); plus
(2) all preferred stock dividends paid or accrued in respect of the
Company's and its Restricted Subsidiaries' preferred stock to Persons
other than the Company or a Wholly Owned Restricted Subsidiary of the
Company other than preferred stock dividends paid by the Company in
shares of preferred stock that is not Disqualified Stock.
"Consolidated Net Income" means, with respect to any Person for any period,
the aggregate of the Net Income of such Person and its Restricted Subsidiaries
for such period, on a consolidated basis, determined in accordance with GAAP;
provided that
(1) the Net Income (but not loss) of any Person other than the Company that
is not a Restricted Subsidiary or that is accounted for by the equity
method of accounting shall be included only to the extent of the amount
of dividends or distributions paid in cash to the referent Person or a
Restricted Subsidiary thereof;
(2) the Net Income of any Person acquired in a pooling of interests
transaction for any period prior to the date of such acquisition shall
be excluded;
(3) the cumulative effect of a change in accounting principles shall be
excluded; and
(4) the Net Income (but not loss) of any Unrestricted Subsidiary shall be
excluded whether or not distributed to the Company or one of its
Restricted Subsidiaries.
6
"Consolidated Tangible Assets" means, with respect to the Company, the
total consolidated assets of the Company and its Restricted Subsidiaries, less
the total intangible assets of the Company and its Restricted Subsidiaries, as
shown on the most recent internal consolidated balance sheet of the Company and
such Restricted Subsidiaries calculated on a consolidated basis in accordance
with GAAP.
"Continuing Directors" means, as of any date of determination, any member
of the Board of Directors who:
(1) was a member of such Board of Directors on the date hereof;
(2) was nominated for election or elected to such Board of Directors with
the approval of a majority of the Continuing Directors who were members
of such Board of Directors at the time of such nomination or election;
or
(3) is a designee of a Principal or was nominated by a Principal.
"Corporate Trust Office of the Trustee" shall be at the address of the
Trustee specified in Section 11.02 hereof or such other address as to which the
Trustee may give notice to the Company.
"Credit Facilities" means one or more debt facilities (including, without
limitation, the Senior Credit Facility) or commercial paper facilities with
banks or other institutional lenders providing for revolving credit loans, term
loans, receivables financing (including through the sale of receivables to such
lenders or to special purpose entities formed to borrow from such lenders
against such receivables) or letters of credit, in each case, as amended,
restated, modified, renewed, refunded, replaced or refinanced in whole or in
part from time to time.
"Crown Transaction Agreements" means, collectively:
(1) the Crown Memorandum of Understanding among the Company, Robert A.
Crown and Barbara A. Crown, dated as of July 2, 1998;
(2) the Crown Services Agreement between the Company and Robert A. Crown,
dated as of July 2, 1998; and
(3) the Registration Rights Crown Side Letter Agreement, among the Company,
Robert A. Crown and Barbara A. Crown, dated as of August 18, 1998.
"CTI" means Castle Transmission International Limited.
"CTI Operating Agreement" means the memorandum of understanding among the
Company, CTSH, CTI and TdF, dated as of August 21, 1998, relating to the
development of certain business opportunities outside of the United States and
the provision of certain business support and technical services in connection
therewith.
"CTI Services Agreement" means the amended and restated services agreement
between CTI and TdF, dated as of August 21, 1998, relating to the provision of
certain services to CTI.
"CTSH" means Crown Transmission Services (Holdings) Ltd and its successors.
7
"CTSH Shareholders' Agreement" means the agreement entered into by the
Company, CTSH and TdF, dated as of August 21, 1998, to govern the relationship
between the Company and Tdf as shareholders of CTSH.
"Custodian" means the Trustee, as Custodian with respect to the Notes in
global form, or any successor entity thereto.
"Debt to Adjusted Consolidated Cash Flow Ratio" means, as of any date of
determination, the ratio of:
(1) the Consolidated Indebtedness of the Company as of such date to
(2) the Adjusted Consolidated Cash Flow of the Company as of such date.
"Default" means any event that is, or with the passage of time or the
giving of notice or both would be, an Event of Default.
"Definitive Note" means a certificated Note registered in the name of the
Holder thereof and issued in accordance with Section 2.06 hereof, substantially
in the form of Exhibit A hereto except that such Note shall not bear the Global
Note Legend and shall not have the "Schedule of Exchanges of Interests in the
Global Note" attached thereto.
"Depositary" means, with respect to the Notes issuable or issued in whole
or in part in global form, the Person specified in Section 2.03 hereof as the
Depositary with respect to the Notes, and any and all successors thereto
appointed as depositary hereunder and having become such pursuant to the
applicable provision of this Indenture.
"Disqualified Stock" means any Capital Stock that, by its terms (or by the
terms of any security into which it is convertible or for which it is
exchangeable, in each case, at the option of the holder thereof), or upon the
happening of any event, matures or is mandatorily redeemable, pursuant to a
sinking fund obligation or otherwise, or redeemable at the option of the holder
thereof, in whole or in part, on or prior to the date that is 91 days after the
date on which the Notes mature; provided, however, that any Capital Stock that
would constitute Disqualified Stock solely because the holders thereof have the
right to require the Company to repurchase such Capital Stock upon the
occurrence of a Change of Control or an Asset Sale shall not constitute
Disqualified Stock if the terms of such Capital Stock provide that the Company
may not repurchase or redeem any such Capital Stock pursuant to such provisions
unless such repurchase or redemption complies with Section 4.07 hereof.
"Eligible Indebtedness" means any Indebtedness other than:
(1) Indebtedness in the form of, or represented by, bonds or other
securities or any guarantee thereof; and
(2) Indebtedness that is, or may be, quoted, listed or purchased and sold
on any stock exchange, automated trading system or over-the-counter or
other securities market (including, without prejudice to the generality
of the foregoing, the market for securities eligible for resale
pursuant to Rule 144A under the Securities Act).
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"Equity Interests" means Capital Stock and all warrants, options or other
rights to acquire Capital Stock (but excluding any debt security that is
convertible into, or exchangeable for, Capital Stock).
"Euroclear" means Morgan Guaranty Trust Company of New York, Brussels
office, as operator of the Euroclear system.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Existing Indebtedness" means Indebtedness of the Company and its
Subsidiaries (other than Indebtedness under the Senior Credit Facility) in
existence on the date hereof, until such amounts are repaid.
"Full Accretion Date" means May 15, 2004.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as have been approved by a significant segment of the accounting
profession, which are in effect on the date hereof.
"Global Note Legend" means the legend set forth in Section 2.06(f), which
is required to be placed on all Global Notes issued under this Indenture.
"Global Notes" means the global Notes substantially in the form of Exhibit
A hereto.
"Governance Agreement" means the agreement among the Company, TdF and its
affiliates, dated as of August 21, 1998, to provide for certain rights and
obligations of the Company, TdF and its affiliates with respect to the
management of the Company.
"Government Securities" means direct obligations of, or obligations
guaranteed by, the United States of America, and the payment for which the
United States pledges its full faith and credit.
"Guarantee" means a guarantee (other than by endorsement of negotiable
instruments for collection in the ordinary course of business), direct or
indirect, in any manner (including, without limitation, by way of a pledge of
assets or through letters of credit or reimbursement agreements in respect
thereof), of all or any part of any Indebtedness. The term "Guarantor" shall
mean any Person Guaranteeing any obligation.
"Hedging Obligations" means, with respect to any Person, the obligations of
such Person under:
(1) interest rate swap agreements, interest rate cap agreements and
interest rate collar agreements; and
(2) other agreements or arrangements designed to protect such Person
against fluctuations in interest rates or currency exchange rates.
"Holder" means a Person in whose name a Note is registered.
9
"Indebtedness" means, with respect to any Person, any indebtedness of such
Person, whether or not contingent, in respect of borrowed money or evidenced by
bonds, notes, debentures or similar instruments or letters of credit (or
reimbursement agreements in respect thereof) or banker's acceptances or
representing Capital Lease Obligations or the balance deferred and unpaid of the
purchase price of any property or representing any Hedging Obligations, except
any such balance that constitutes an accrued expense or trade payable, if and to
the extent any of the foregoing indebtedness (other than letters of credit and
Hedging Obligations) would appear as a liability upon a balance sheet of such
Person prepared in accordance with GAAP, as well as all Indebtedness of others
secured by a Lien on any asset of such Person whether or not such Indebtedness
is assumed by such Person (the amount of such Indebtedness as of any date being
deemed to be the lesser of the value of such property or assets as of such date
or the principal amount of such Indebtedness of such other Person so secured)
and, to the extent not otherwise included, the Guarantee by such Person of any
Indebtedness of any other Person. The amount of any Indebtedness outstanding as
of any date shall be:
(1) the accreted value thereof, in the case of any Indebtedness issued with
original issue discount; and
(2) the principal amount thereof, together with any interest thereon that
is more than 30 days past due, in the case of any other Indebtedness.
"Indenture" means this Indenture, as amended or supplemented from time to
time.
"Indirect Participant" means a Person who holds a beneficial interest in a
Global Note through a Participant.
"Investments" means, with respect to any Person, all investments by such
Person in other Persons (including Affiliates) in the forms of direct or
indirect loans (including guarantees of Indebtedness or other obligations),
advances or capital contributions (excluding commission, travel and similar
advances to officers and employees made in the ordinary course of business),
purchases or other acquisitions for consideration of Indebtedness, Equity
Interests or other securities, together with all items that are or would be
classified as investments on a balance sheet prepared in accordance with GAAP.
If the Company or any Restricted Subsidiary of the Company sells or otherwise
disposes of any Equity Interests of any direct or indirect Subsidiary of the
Company or a Restricted Subsidiary of the Company issues any of its Equity
Interests such that, in each case, after giving effect to any such sale or
disposition, such Person is no longer a Restricted Subsidiary of the Company,
the Company shall be deemed to have made an Investment on the date of any such
sale or disposition equal to the fair market value of the Equity Interests of
such Subsidiary not sold or disposed of in an amount determined as provided in
the final paragraph of Section 4.07 hereof.
"Legal Holiday" means a Saturday, a Sunday or a day on which banking
institutions in the City of New York or at a place of payment are authorized by
law, regulation or executive order to remain closed. If a payment date is a
Legal Holiday at a place of payment, payment may be made at that place on the
next succeeding day that is not a Legal Holiday, and no interest shall accrue on
such payment for the intervening period.
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such asset,
whether or not filed, recorded or otherwise perfected under applicable law
(including any conditional sale or other title retention agreement, any lease in
the nature thereof, any option or other agreement to sell or give a security
interest in and any filing of or
10
agreement to give any financing statement under the Uniform Commercial Code (or
equivalent statutes) of any jurisdiction).
"Net Income" means, with respect to any Person, the net income (loss) of
such Person, determined in accordance with GAAP and before any reduction in
respect of preferred stock dividends, excluding, however:
(1) any gain or loss, together with any related provision for taxes on such
gain or loss, realized in connection with:
(a) any Asset Sale (including, without limitation, dispositions pursuant
to sale and leaseback transactions); or
(b) the disposition of any securities by such Person or any of its
Restricted Subsidiaries or the extinguishment of any Indebtedness of
such Person or any of its Restricted Subsidiaries; and
(2) any extraordinary gain or loss, together with any related provision for
taxes on such extraordinary gain or loss.
"Net Proceeds" means the aggregate cash proceeds received by the Company or
any of its Restricted Subsidiaries in respect of any Asset Sale (including,
without limitation, any cash received upon the sale or other disposition of any
non-cash consideration received in any Asset Sale), net of:
(1) the direct costs relating to such Asset Sale (including, without
limitation, legal, accounting and investment banking fees, and sales
commissions) and any relocation expenses incurred as a result thereof;
(2) taxes paid or payable as a result thereof (after taking into account
any available tax credits or deductions and any tax sharing
arrangements);
(3) amounts required to be applied to the repayment of Indebtedness (other
than Indebtedness under a Credit Facility) secured by a Lien on the
asset or assets that were the subject of such Asset Sale;
(4) all distributions and other payments required to be made to minority
interest holders in Restricted Subsidiaries as a result of such Asset
Sale;
(5) the deduction of appropriate amounts provided by the seller as a
reserve in accordance with GAAP against any liabilities associated with
the assets disposed of in such Asset Sale and retained by the Company
or any Restricted Subsidiary after such Asset Sale; and
(6) without duplication, any reserves that Board of Directors determines in
good faith should be made in respect of the sale price of such asset or
assets for post closing adjustments;
provided that in the case of any reversal of any reserve referred to in clause
(5) or (6) above, the amount so reversed shall be deemed to be Net Proceeds from
an Asset Sale as of the date of such reversal.
"Non-Recourse Debt" means Indebtedness:
11
(1) as to which neither the Company nor any of its Restricted Subsidiaries:
(a) provides credit support of any kind (including any undertaking,
agreement or instrument that would constitute Indebtedness);
(b) is directly or indirectly liable (as a guarantor or otherwise); or
(c) constitutes the lender;
(2) no default with respect to which (including any rights that the holders
thereof may have to take enforcement action against an Unrestricted
Subsidiary) would permit (upon notice, lapse of time or both) any
holder of any other Indebtedness of the Company or any of its
Restricted Subsidiaries to declare a default on such other Indebtedness
or cause the payment thereof to be accelerated or payable prior to its
stated maturity; and
(3) as to which the lenders have been notified in writing that they will
not have any recourse to the stock or assets of the Company or any of
its Restricted Subsidiaries (except that this clause (3) will not apply
to any Indebtedness incurred by CTSH and its Subsidiaries prior to the
date CTSH became a Subsidiary).
"Notes" has the meaning assigned to it in the preamble to this Indenture.
"Obligatons" means any principal, interest, penalties, fees,
indemnifications, reimbursements, damages and other liabilities payable under
the documentation governing any Indebtedness.
"Offering" means the offering of the Notes by the Company.
"Officer" means, with respect to any Person, the Chairman of the Board, the
Chief Executive Officer, the President, the Chief Operating Officer, the Chief
Financial Officer, the Treasurer, any Assistant Treasurer, the Controller, the
Secretary or any Vice-President of such Person.
"Officers' Certificate" means a certificate signed on behalf of the Company
by two Officers of the Company, one of whom must be the principal executive
officer, the principal financial officer, the treasurer or the principal
accounting officer of the Company, that meets the requirements of Section 11.04
hereof.
"Opinion of Counsel" means an opinion from legal counsel who is reasonably
acceptable to the Trustee, that meets the requirements of Section 11.04 hereof.
The counsel may be an employee of or counsel to the Company, any Subsidiary of
the Company or the Trustee.
"Participant" means, with respect to the Depositary, Euroclear or Cedel, a
Person who has an account with the Depositary, Euroclear or Cedel, respectively
(and, with respect to DTC, shall include Euroclear and Cedel).
"Permitted Business" means any business conducted by the Company, its
Restricted Subsidiaries or CTSH and its Subsidiaries on the date hereof and any
other business related, ancillary or complementary to any such business.
"Permitted Investments" means:
12
(1) any Investment in the Company or in a Restricted Subsidiary of the
Company;
(2) any Investment in Cash Equivalents;
(3) any Investment by the Company or any Restricted Subsidiary of the
Company in a Person, if as a result of such Investment:
(a) such Person becomes a Restricted Subsidiary of the Company; or
(b) such Person is merged, consolidated or amalgamated with or into, or
transfers or conveys substantially all of its assets to, or is
liquidated into, the Company or a Restricted Subsidiary of the
Company;
(4) any Restricted Investment made as a result of the receipt of non-cash
consideration from an Asset Sale that was made pursuant to and in
compliance with Section 4.10 hereof;
(5) any acquisition of assets solely in exchange for the issuance of Equity
Interests (other than Disqualified Stock) of the Company;
(6) receivables created in the ordinary course of business;
(7) loans or advances to employees made in the ordinary course of business
not to exceed $2.0 million at any one time outstanding;
(8) securities and other assets received in settlement of trade debts or
other claims arising in the ordinary course of business;
(9) purchases of additional Equity Interests in CTSH for cash pursuant to
the governance agreement as the same is in effect on the date hereof
for aggregate cash consideration not to exceed $20.0 million since the
beginning of the quarter during which this Indenture is executed;
(10) the Investment of up to an aggregate of $100.0 million (each such
Investment being measured as of the date made and without giving effect
to subsequent changes in value); and
(11) other Investments in Permitted Businesses not to exceed an amount equal
to $10.0 million plus 10% of the Company's Consolidated Tangible Assets
at any one time outstanding (each such Investment being measured as of
the date made and without giving effect to subsequent changes in
value).
"Permitted Liens" means:
(1) Liens securing Eligible Indebtedness of the Company under one or more
Credit Facilities that was permitted by the terms hereof to be
incurred;
(2) Liens securing any Indebtedness of any of the Company's Restricted
Subsidiaries that was permitted by the terms hereof to be incurred;
(3) Liens in favor of the Company;
13
(4) Liens existing on the date hereof;
(5) Liens for taxes, assessments or governmental charges or claims that are
not yet delinquent or that are being contested in good faith by
appropriate proceedings promptly instituted and diligently concluded;
provided that any reserve or other appropriate provision as shall be
required in conformity with GAAP shall have been made therefor;
(6) Liens securing Indebtedness permitted to be incurred under clause (5)
of the second paragraph of Section 4.09 hereof; and
(7) Liens incurred in the ordinary course of business of the Company or any
Restricted Subsidiary of the Company with respect to obligations that
do not exceed $5.0 million at any one time outstanding and that:
(a) are not incurred in connection with the borrowing of money or the
obtaining of advances or credit (other than trade credit in the
ordinary course of business); and
(b) do not in the aggregate materially detract from the value of the
property or materially impair the use thereof in the operation of
business by the Company or such Restricted Subsidiary.
"Permitted Refinancing Indebtedness" means any Indebtedness of the Company
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 Company or any of its Restricted Subsidiaries
(other than intercompany Indebtedness); provided that:
(1) the principal amount (or initial accreted value, if applicable) of such
Permitted 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 expenses and prepayment premiums incurred
in connection therewith);
(2) such Permitted Refinancing Indebtedness has a final maturity date later
than the final maturity date of, and has a Weighted Average Life to
Maturity equal to or greater than the Weighted Average Life to Maturity
of, the Indebtedness being extended, refinanced, renewed, replaced,
defeased or refunded;
(3) if the Indebtedness being extended, refinanced, renewed, replaced,
defeased or refunded is subordinated in right of payment to the Notes,
such Permitted Refinancing Indebtedness 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
(4) such Indebtedness is incurred either by the Company or by the
Restricted Subsidiary who is the obligor on the Indebtedness being
extended, refinanced, renewed, replaced, defeased or refunded.
"Person" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
government or agency or political subdivision thereof
14
(including any subdivision or ongoing business of any such entity or
substantially all of the assets of any such entity, subdivision or business).
"Principals" means Berkshire Fund III, Limited Partnership; Berkshire Fund
IV, Limited Partnership; Berkshire Investors LLC; Berkshire Partners LLC;
Centenial Fund IV, L.P.; Centenial Fund V, L.P.; Centenial Entrepreneurs Fund V,
L.P.; Nassau Capital Partners II, L.P.; NAS Partners I, L.L.C., and TdF and any
Related Party of the foregoing.
"Prospectus" means the prospectus included in a registration statement of
the Company relating to the offering of the Notes at the time such Registration
Statement is declared effective, as amended or supplemented by any prospectus
supplement and by all other amendments thereto, including post-effective
amendments, and all material incorporated by reference in such Prospectus.
"Public Equity Offering" means an underwritten primary public offering of
common stock of the Company pursuant to an effective registration statement
under the Securities Act.
"Related Party" with respect to any Principal means:
(1) any controlling stockholder, 80% (or more) owned Subsidiary of such
Principal; or
(2) any trust, corporation, partnership or other entity, the beneficiaries,
stockholders, members, partners, owners or Persons beneficially holding
an 80% or more controlling interest of which consist of such Principal
and/or such other Persons referred to in the immediately preceding
clause (1).
"Responsible Officer" with respect to the Trustee, means any officer within
the Corporate Trust Administration of the Trustee (or any successor group of the
Trustee) or any other officer of the Trustee customarily performing functions
similar to those performed by any of the above designated officers and also
means, with respect to a particular corporate trust matter, any other officer to
whom such matter is referred because of his knowledge of and familiarity with
the particular subject.
"Restricted Investment" means an Investment other than a Permitted
Investment.
"Restricted Subsidiary" of a Person means any Subsidiary of the referent
Person that is not an Unrestricted Subsidiary.
"Rights Agreement" means the agreement between the Company and ChaseMellon
Shareholders Services, L.L.C., as rights agent, dated as of August 21, 1998,
relating to the dividend declared by the Company consisting of the right to
purchase 1/100th of a share of the Company's Series A Participating Cumulative
Preferred Stock, par value $.01 per share.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended.
"Senior Credit Facility" means that certain Amended and Restated Loan
Agreement, dated as of July 10, 1998, by and among Key Corporate Capital Inc.
and PNC Bank, National Association, as arrangers and agents for the financial
institutions listed therein, and Crown Communication Inc. and Crown Castle
International Corp. de Puerto Rico, including any related notes, guarantees,
collateral
15
documents, instruments and agreements executed in connection therewith, and in
each case as amended, modified, renewed, refunded, replaced or refinanced from
time to time.
"Senior Notes" means the 9% Senior Notes Due 2011 issued pursuant to an
indenture dated of even date herewith.
"Significant Subsidiary" means, with respect to any Person, any Restricted
Subsidiary of such Person that would be a ''significant subsidiary'' of such
Person as defined in Article 1, Rule 1-02 of Regulation S-X, promulgated
pursuant to the Act, as such Regulation is in effect on the date hereof, except
that all references to ''10 percent'' in Rule 1-02(w)(1), (2) and (3) shall mean
''5 percent'' and that all Unrestricted Subsidiaries of the Company shall be
excluded from all calculations under Rule 1-02(w).
"Stated Maturity" means, with respect to any installment of interest or
principal on any series of Indebtedness, the date on which such payment of
interest or principal was scheduled to be paid in the original documentation
governing such Indebtedness, and shall not include any contingent obligations to
repay, redeem or repurchase any such interest or principal prior to the date
originally scheduled for the payment thereof.
"Stockholders' Agreement" means the agreement among the Company and certain
stockholders of the Company, dated as of August 21, 1998, to provide for certain
rights and obligations of the Company and such stockholders with respect to the
governance of the Company and such stockholders' shares of Common Stock and/or
Class A Common Stock of the Company.
"Strategic Equity Investment" means a cash contribution to the common
equity capital of the Company or a purchase from the Company of common Equity
Interests (other than Disqualified Stock), in either case by or from a Strategic
Equity Investor and for aggregate cash consideration of at least $50.0 million.
"Strategic Equity Investor" means a Person engaged in a Permitted Business
whose Total Equity Market Capitalization exceeds $1.0 billion.
"Subsidiary" means, with respect to any Person:
(1) any corporation, association or other business entity of which more
than 50% of the total voting power of shares of Capital Stock entitled
(without regard to the occurrence of any contingency) to vote in the
election of directors, managers or trustees thereof is at the time
owned or controlled, directly or indirectly, by such Person or one or
more of the other Subsidiaries of that Person (or a combination
thereof); and
(2) any partnership:
(a) the sole general partner or the managing general partner of which is
such Person or a Subsidiary of such Person; or
(b) the only general partners of which are such Person or of one or more
Subsidiaries of such Person (or any combination thereof).
"TdF" means TeleDiffusion de France International S.A.
16
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. (S)(S) 77aaa-77bbbb)
as in effect on the date on which this Indenture is qualified under the TIA.
"Total Equity Market Capitalization" of any Person means, as of any day of
determination, the sum of:
(1) the product of:
(a) 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); multiplied by
(b) the average closing price of such common stock listed on a national
securities exchange or the Nasdaq National Market System over the 20
consecutive business days immediately preceding such day; plus
(2) the liquidation value of any outstanding shares of preferred stock of
such Person on such day.
"Tower Asset Exchange" means any transaction in which the Company or one of
its Restricted Subsidiaries exchanges assets for Tower Assets and/or cash or
Cash Equivalents where the fair market value (evidenced by a resolution of the
Board of Directors set forth in an Officers' Certificate delivered to the
Trustee) of the Tower Assets and cash or Cash Equivalents received by the
Company and its Restricted Subsidiaries in such exchange is at least equal to
the fair market value of the assets disposed of in such exchange.
"Tower Assets" means wireless transmission towers and related assets that
are located on the site of a transmission tower.
"Tower Cash Flow" means, for any period, the Consolidated Cash Flow of
the Company and its Restricted Subsidiaries for such period that is directly
attributable to site rental revenue or license fees paid to lease or sublease
space on communication sites owned or leased by the Company, all determined on a
consolidated basis and in accordance with GAAP. Tower Cash Flow will not include
revenue or expenses attributable to non-site rental services provided by the
Company or any of its Restricted Subsidiaries to lessees of communication sites
or revenues derived from the sale of assets.
"Trustee" means the party named as such above until a successor replaces it
in accordance with the applicable provisions of this Indenture and thereafter
means the successor serving hereunder.
"Unrestricted Subsidiary" means any Subsidiary of the Company that is
designated by the Board of Directors as an Unrestricted Subsidiary pursuant to a
board resolution; but only to the extent that such Subsidiary:
(1) has no Indebtedness other than Non-Recourse Debt;
(2) is not party to any agreement, contract, arrangement or understanding
with the Company or any Restricted Subsidiary of the Company unless the
terms of any such agreement, contract, arrangement or understanding are
no less favorable to the Company or such Restricted Subsidiary than
those that might be obtained at the time from Persons who are not
Affiliates of the Company;
17
(3) is a Person with respect to which neither the Company nor any of its
Restricted Subsidiaries has any direct or indirect obligation:
(a) to subscribe for additional Equity Interests; or
(b) to maintain or preserve such Person's financial condition or to cause
such Person to achieve any specified levels of operating results;
(4) has not guaranteed or otherwise directly or indirectly provided credit
support for any Indebtedness of the Company or any of its Restricted
Subsidiaries; and
(5) has at least one director on its Board of Directors that is not a
director or executive officer of the Company or any of its Restricted
Subsidiaries and has at least one executive officer that is not a
director or executive officer of the Company or any of its Restricted
Subsidiaries.
Any such designation by the Board of Directors shall be evidenced to the
Trustee by filing with the trustee a certified copy of the board resolution
giving effect to such designation and an Officers' Certificate certifying that
such designation complied with the foregoing conditions and was permitted by
Section 4.07 hereof. If, at any time, any Unrestricted Subsidiary would fail
to meet the foregoing requirements as an Unrestricted Subsidiary, it shall
thereafter cease to be an Unrestricted Subsidiary for purposes of this
Indenture, and any Indebtedness of that Subsidiary shall be deemed to be
incurred by a Restricted Subsidiary of the Company as of such date (and, if such
Indebtedness is not permitted to be incurred as of such date under Section 4.09
hereof, the Company shall be in default of Section 4.09 hereof). The Board of
Directors may at any time designate any Unrestricted Subsidiary to be a
Restricted Subsidiary; provided that the designation shall be deemed to be an
incurrence of Indebtedness by a Restricted Subsidiary of the Company of any
outstanding Indebtedness of such Unrestricted Subsidiary and the designation
shall only be permitted if (1) such Indebtedness is permitted under Section 4.09
hereof, calculated on a pro forma basis as if such designation had occurred at
the beginning of the four-quarter reference period and (2) no Default would
occur or be in existence following such designation.
"U.S. Person" means a U.S. person as defined in Rule 902(o) under the
Securities Act.
"Voting Stock" of any Person as of any date means the Capital Stock of such
Person that is at the time entitled to vote in the election of the board of
directors of such Person.
"Weighted Average Life to Maturity" means, when applied to any Indebtedness
at any date, the number of years obtained by dividing:
(1) 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
(2) the then outstanding principal amount of such Indebtedness.
18
"Wholly Owned Restricted Subsidiary" of any Person means a Restricted
Subsidiary of such Person all of the outstanding Capital Stock or other
ownership interests of which (other than directors' qualifying shares) shall at
the time be owned by such Person or by one or more Wholly Owned Restricted
Subsidiaries of such Person or by such Person and one or more Wholly Owned
Restricted Subsidiaries of such Person.
Section 1.02. Other Definitions.
Defined in
Term Section
- ---- ------------
"Affiliate Transaction"........................................................... 4.11
"Asset Sale"...................................................................... 4.10
"Asset Sale Offer"................................................................ 3.09
"Authentication Order"............................................................ 2.02
"Change of Control Offer"......................................................... 4.15
"Change of Control Payment"....................................................... 4.15
"Change of Control Payment Date".................................................. 4.15
"Covenant Defeasance"............................................................. 8.03
"Event of Default"................................................................ 6.01
"Excess Proceeds"................................................................. 4.10
"incur"........................................................................... 4.09
"Legal Defeasance"................................................................ 8.02
"Offer Amount".................................................................... 3.09
"Offer Period".................................................................... 3.09
"Paying Agent".................................................................... 2.03
"Payment Default"................................................................. 6.01
"Permitted Debt".................................................................. 4.09
"Purchase Date"................................................................... 3.09
"Registrar"....................................................................... 2.03
"Restricted Payments"............................................................. 4.07
Section 1.03. Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the 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:
"indenture securities" means the Notes;
"indenture security Holder" means a Holder of a Note;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the Trustee; and
"obligor" on the Notes means the Company and any successor obligor upon
the Notes.
19
All other terms used in this Indenture that are defined by the TIA,
defined by the TIA's reference to another statute or defined by SEC rule under
the TIA have the meanings so assigned to them.
Section 1.04. Rules of Construction.
Unless the context otherwise requires:
(a) a term has the meaning assigned to it;
(b) an accounting term not otherwise defined has the meaning assigned to
it in accordance with GAAP;
(c) "or" is not exclusive;
(d) words in the singular include the plural, and in the plural include
the singular;
(e) provisions apply to successive events and transactions; and
(f) references to sections of or rules under the Securities Act shall be
deemed to include substitute, replacement or successor sections or rules adopted
by the SEC from time to time.
ARTICLE 2
THE NOTES
Section 2.01. Form and Dating.
(a) General. The Notes and the Trustee's certificate of authentication
shall be substantially in the form of Exhibit A hereto. The Notes may have
notations, legends or endorsements required by law, stock exchange rule or
usage. Each Note shall be dated the date of its authentication. The Notes
shall be in denominations of $1,000 and integral multiples thereof.
The terms and provisions contained in the Notes shall constitute, and are
hereby expressly made, a part of this Indenture and 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. However, to the extent any provision of
any Note conflicts with the express provisions of this Indenture, the provisions
of this Indenture shall govern and be controlling.
(b) Global Notes. Notes issued in global form shall be substantially in
the form of Exhibit A attached hereto (including the Global Note Legend thereon
and the "Schedule of Exchanges of Interests in the Global Note" attached
thereto). Notes issued in definitive form shall be substantially in the form of
Exhibit A attached hereto (but without the Global Note Legend thereon and
without the "Schedule of Exchanges of Interests in the Global Note" attached
thereto). Each Global Note shall represent such of the outstanding Notes as
shall be specified therein and each shall provide that it shall represent the
aggregate principal amount at maturity of outstanding Notes from time to time
endorsed thereon and that the aggregate principal amount at maturity of
outstanding Notes represented thereby may from time to time be reduced or
increased, as appropriate, to reflect exchanges and redemptions. Any
endorsement of a Global Note to reflect the amount of any increase or decrease
in the aggregate principal amount at maturity of outstanding Notes represented
thereby shall be made by the Trustee or the Custodian, at the
20
direction of the Trustee, in accordance with instructions given by the Holder
thereof as required by Section 2.06 hereof.
(d) Euroclear and Cedel Procedures Applicable. The provisions of the
"Operating Procedures of the Euroclear System" and "Terms and Conditions
Governing Use of Euroclear" and the "General Terms and Conditions of Cedel Bank"
and "Customer Handbook" of Cedel Bank shall be applicable to transfers of
beneficial interests in Global Notes that are held by Participants through
Euroclear or Cedel Bank.
Section 2.02. Execution and Authentication.
Two Officers shall sign the Notes for the Company by manual or facsimile
signature. The Company's seal shall be reproduced on the Notes and may be in
facsimile form.
If an Officer whose signature is on a Note no longer holds that office at
the time a Note is authenticated, the Note shall nevertheless be valid.
A Note shall not be valid until authenticated by the manual signature of
the Trustee. The signature shall be conclusive evidence that the Note has been
authenticated under this Indenture.
The Trustee shall, upon a written order of the Company signed by two
Officers (an "Authentication Order"), authenticate Notes for original issue up
to the aggregate principal amount at maturity stated in paragraph 4 of the
Notes. The aggregate principal amount at maturity of Notes outstanding at any
time may not exceed such amount except as provided in Section 2.08 hereof.
The Trustee may appoint an authenticating agent acceptable to the Company
to authenticate Notes. An authenticating agent may authenticate Notes whenever
the Trustee may do so. Each reference in this Indenture to authentication by
the Trustee includes authentication by such agent. An authenticating agent has
the same rights as an Agent to deal with Holders or an Affiliate of the Company.
Section 2.03. Registrar and Paying Agent.
The Company shall maintain an office or agency where Notes may be
presented for registration of transfer or for exchange ("Registrar") and an
office or agency where Notes may be presented for payment ("Paying Agent"). The
Registrar shall keep a register of the Notes and of their transfer and exchange.
The Company may appoint one or more co-registrars and one or more additional
paying agents. The term "Registrar" includes any co-registrar and the term
"Paying Agent" includes any additional paying agent. The Company may change any
Paying Agent or Registrar without notice to any Holder. The Company shall
notify the Trustee in writing of the name and address of any Agent not a party
to this Indenture. If the Company fails to appoint or maintain another entity
as Registrar or Paying Agent, the Trustee shall act as such. The Company or any
of its Subsidiaries may act as Paying Agent or Registrar.
The Company initially appoints The Depository Trust Company ("DTC") to act
as Depositary with respect to the Global Notes.
The Company initially appoints the Trustee to act as the Registrar and
Paying Agent and to act as Custodian with respect to the Global Notes.
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Section 2.04. Paying Agent to Hold Money in Trust.
The Company shall require each Paying Agent other than the Trustee to
agree in writing that the Paying Agent will hold in trust for the benefit of the
Holders or the Trustee all money held by the Paying Agent for the payment of
principal of, or premium, if any, or interest on the Notes, and will notify the
Trustee of any default by the Company in making any such payment. While any
such default continues, the Trustee may require a Paying Agent to pay all money
held by it to the Trustee. The Company at any time may require a Paying Agent
to pay all money held by it to the Trustee. Upon payment over to the Trustee,
the Paying Agent (if other than the Company or a Subsidiary) shall have no
further liability for the money. If the Company or a Subsidiary acts as Paying
Agent, it shall segregate and hold in a separate trust fund for the benefit of
the Holders all money held by it as Paying Agent. Upon any bankruptcy or
reorganization proceedings relating to the Company, the Trustee shall serve as
Paying Agent for the Notes.
Section 2.05. Holder Lists.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
all Holders and shall otherwise comply with TIA (S) 312(a). If the Trustee is
not the Registrar, the Company shall furnish to the Trustee at least seven
Business Days before each interest payment date and at such other times as the
Trustee may request in writing, a list in such form and as of such date as the
Trustee may reasonably require of the names and addresses of the Holders of
Notes, and the Company shall otherwise comply with TIA (S) 312(a).
Section 2.06. Transfer and Exchange.
(a) Transfer and Exchange of Global Notes. A Global Note may not be
transferred as a whole except by the Depositary to a nominee of the Depositary,
by a nominee of the Depositary to the Depositary or to another nominee of the
Depositary, or by the Depositary or any such nominee to a successor Depositary
or a nominee of such successor Depositary. All Global Notes will be exchanged
by the Company for Definitive Notes if (i) the Company delivers to the Trustee
notice from the Depositary that it is unwilling or unable to continue to act as
Depositary or that it is no longer a clearing agency registered under the
Exchange Act and, in either case, a successor Depositary is not appointed by the
Company within 120 days after the date of such notice from the Depositary or
(ii) the Company in its sole discretion determines that the Global Notes (in
whole but not in part) should be exchanged for Definitive Notes and delivers a
written notice to such effect to the Trustee. Upon the occurrence of either of
the preceding events in (i) or (ii) above, Definitive Notes shall be issued in
such names as the Depositary shall instruct the Trustee. Global Notes also may
be exchanged or replaced, in whole or in part, as provided in Sections 2.07 and
2.10 hereof. Every Note authenticated and delivered in exchange for, or in lieu
of, a Global Note or any portion thereof, pursuant to this Section 2.06, or
Section 2.07 or 2.10 hereof, shall be authenticated and delivered in the form
of, and shall be, a Global Note. A Global Note may not be exchanged for another
Note other than as provided in this Section 2.06(a); however, beneficial
interests in a Global Note may be transferred and exchanged as provided in
Section 2.06(b), (c) or (f) hereof.
(b) Transfer and Exchange of Beneficial Interests in the Global Notes.
The transfer and exchange of beneficial interests in the Global Notes shall be
effected through the Depositary, in accordance with the provisions of this
Indenture and the Applicable Procedures. Transfers of beneficial interests in
the Global Notes also shall require compliance with either subparagraph (i) or
(ii) below, as applicable, as well as one or more of the other following
subparagraphs, as applicable:
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(i) Transfer of Beneficial Interests in the Same Global Note.
Beneficial interests in any Global Note may be transferred to Persons who
take delivery thereof in the form of a beneficial interest in the same Global
Note. No written orders or instructions shall be required to be delivered to
the Registrar to effect the transfers described in this Section 2.06(b)(i).
(ii) All Other Transfers and Exchanges of Beneficial Interests in
Global Notes. In connection with all transfers and exchanges of beneficial
interests that are not subject to Section 2.06(b)(i) above, the transferor of
such beneficial interest must deliver to the Registrar either (A) (1) a
written order from a Participant or an Indirect Participant given to the
Depositary in accordance with the Applicable Procedures directing the
Depositary to credit or cause to be credited a beneficial interest in another
Global Note in an amount equal to the beneficial interest to be transferred
or exchanged and (2) instructions given in accordance with the Applicable
Procedures containing information regarding the Participant account to be
credited with such increase or (B) (1) a written order from a Participant or
an Indirect Participant given to the Depositary in accordance with the
Applicable Procedures directing the Depositary to cause to be issued a
Definitive Note in an amount equal to the beneficial interest to be
transferred or exchanged and (2) instructions given by the Depositary to the
Registrar containing information regarding the Person in whose name such
Definitive Note shall be registered to effect the transfer or exchange
referred to in (1) above. Upon satisfaction of all of the requirements for
transfer or exchange of beneficial interests in Global Notes contained in
this Indenture and the Notes or otherwise applicable under the Securities
Act, the Trustee shall adjust the principal amount at maturity of the
relevant Global Note(s) pursuant to Section 2.06(g) hereof.
(c) Transfer or Exchange of Beneficial Interests for Definitive Notes.
If any holder of a beneficial interest in a Global Note proposes to exchange
such beneficial interest for a Definitive Note or to transfer such beneficial
interest to a Person who takes delivery thereof in the form of a Definitive
Note, then, upon satisfaction of the conditions set forth in Section
2.06(b)(ii) hereof, the Trustee shall cause the aggregate principal amount at
maturity of the applicable Global Note to be reduced accordingly pursuant to
Section 2.06(g) hereof, and the Company shall execute and the Trustee shall
authenticate and deliver to the Person designated in the instructions a
Definitive Note in the appropriate principal amount at maturity. Any
Definitive Note issued in exchange for a beneficial interest pursuant to this
Section 2.06(c) shall be registered in such name or names and in such
authorized denomination or denominations as the holder of such beneficial
interest shall instruct the Registrar through instructions from the
Depositary and the Participant or Indirect Participant.
(d) Transfer and Exchange of Definitive Notes for Beneficial Interests
in Global Notes. A Holder of a Definitive Note may exchange such Note for a
beneficial interest in a Global Note or transfer such Definitive Notes to a
Person who takes delivery thereof in the form of a beneficial interest in a
Global Note at any time. Upon receipt of a request for such an exchange or
transfer, the Trustee shall cancel the applicable Definitive Note and
increase or cause to be increased the aggregate principal amount at maturity
of one of the Global Notes.
(e) Transfer and Exchange of Definitive Notes for Definitive Notes.
Upon request by a Holder of Definitive Notes and such requesting Holder's
presenting or surrendering to the Registrar of the Definitive Notes duly
endorsed or accompanied by a written instruction of transfer in form
satisfactory to the Registrar duly executed by such Holder or by its
attorney, duly authorized in writing, the Registrar shall register the
transfer or exchange of Definitive Notes.
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(f) Legends. The following legends shall appear on the face of all
Global Notes and Definitive Notes issues under this Indenture unless
specifically stated otherwise in the applicable provisions of this Indenture.
(i) Global Note Legend. Each Global Note shall bear a legend in
substantially the following form:
"THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE
GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL
OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES
EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED
PURSUANT TO SECTION 2.06 OF THE INDENTURE, (II) THIS GLOBAL NOTE MAY BE
EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(a) OF THE INDENTURE,
(III) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT
TO SECTION 2.11 OF THE INDENTURE AND (IV) THIS GLOBAL NOTE MAY BE TRANSFERRED TO
A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF CROWN CASTLE
INTERNATIONAL CORP."
(ii) Original Issue Discount Legend. Each Note shall bear a legend in
substantially the following form:
"THE FOLLOWING INFORMATION IS PROVIDED SOLELY FOR PURPOSES OF APPLYING THE
UNITED STATES FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT RULES TO THIS NOTE.
THE ISSUE DATE OF THIS NOTE IS MAY 17, 1999. THE ISSUE PRICE OF THIS NOTE IS
$603.39 PER $1000.00 OF INITIAL PRINCIPAL AMOUNT AT MATURITY. THIS NOTE IS
ISSUED WITH $396.61 OF ORIGINAL ISSUE DISCOUNT PER $1000.00 OF INITIAL PRINCIPAL
AMOUNT AT MATURITY. THE YIELD TO MATURITY OF THIS NOTE IS 10%".
(g) Cancellation and/or Adjustment of Global Notes. At such time as all
beneficial interests in a particular Global Note have been exchanged for
Definitive Notes or a particular Global Note has been redeemed, repurchased or
canceled in whole and not in part, each such Global Note shall be returned to or
retained and canceled by the Trustee in accordance with Section 2.11 hereof. At
any time prior to such cancellation, if any beneficial interest in a Global Note
is exchanged for or transferred to a Person who will take delivery thereof in
the form of a beneficial interest in another Global Note or for Definitive
Notes, the principal amount at maturity of Notes represented by such Global Note
shall be reduced accordingly and an endorsement shall be made on such Global
Note by the Trustee or by the Depositary at the direction of the Trustee to
reflect such reduction; and if the beneficial interest is being exchanged for or
transferred to a Person who will take delivery thereof in the form of a
beneficial interest in another Global Note, such other Global Note shall be
increased accordingly and an endorsement shall be made on such Global Note by
the Trustee or by the Depositary at the direction of the Trustee to reflect such
increase.
(h) General Provisions Relating to Transfers and Exchanges.
(i) To permit registrations of transfers and exchanges, the Company
shall execute and the Trustee shall authenticate Global Notes and Definitive
Notes upon the Company's order or at the Registrar's request.
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(ii) No service charge shall be made to a holder of a beneficial
interest in a Global Note or to a Holder of a Definitive Note for any
registration of transfer or exchange, but the Company may require payment of
a sum sufficient to cover any transfer tax or similar governmental charge
payable in connection therewith (other than any such transfer taxes or
similar governmental charge payable upon exchange or transfer pursuant to
Sections 2.10, 3.06, 3.09, 4.10, 4.15 and 9.05 hereof).
(iii) The Registrar shall not be required to register the transfer of
or exchange any Note selected for redemption in whole or in part, except the
unredeemed portion of any Note being redeemed in part.
(iv) All Global Notes and Definitive Notes issued upon any registration
of transfer or exchange of Global Notes or Definitive Notes shall be the
valid obligations of the Company, evidencing the same debt, and entitled to
the same benefits under this Indenture, as the Global Notes or Definitive
Notes surrendered upon such registration of transfer or exchange.
(v) The Company shall not be required (A) to issue, to register the
transfer of or to exchange any Notes during a period beginning at the opening
of business 15 days before the day of any selection of Notes for redemption
under Section 3.02 hereof and ending at the close of business on the day of
selection, (B) to register the transfer of or to exchange any Note so
selected for redemption in whole or in part, except the unredeemed portion of
any Note being redeemed in part or (C) to register the transfer of or to
exchange a Note between a record date and the next succeeding Interest
Payment Date.
(vi) Prior to due presentment for the registration of a transfer of any
Note, the Trustee, any Agent and the Company may deem and treat the Person in
whose name any Note is registered as the absolute owner of such Note for the
purpose of receiving payment of principal of and interest on such Notes and
for all other purposes, and none of the Trustee, any Agent or the Company
shall be affected by notice to the contrary.
(vii) The Trustee shall authenticate Global Notes and Definitive Notes
in accordance with the provisions of Section 2.02 hereof.
(viii) All certifications, certificates and Opinions of Counsel
required to be submitted to the Registrar pursuant to this Section 2.06 to
effect a registration of transfer or exchange may be submitted by facsimile.
Section 2.07. Replacement Notes.
If any mutilated Note is surrendered to the Trustee or the Company and the
Trustee receives evidence to its satisfaction of the destruction, loss or theft
of any Note, the Company shall issue and the Trustee, upon receipt of an
Authentication Order, shall authenticate a replacement Note if the Trustee's
requirements are met. If required by the Trustee or the Company, an indemnity
bond must be supplied by the Holder that is sufficient in the judgment of the
Trustee and the Company to protect the Company, the Trustee, any Agent and any
authenticating agent from any loss that any of them may suffer if a Note is
replaced. The Company may charge for its expenses in replacing a Note.
Every replacement Note is an additional obligation of the Company and
shall be entitled to all of the benefits of this Indenture equally and
proportionately with all other Notes duly issued hereunder.
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Section 2.08. Outstanding Notes.
The Notes outstanding at any time are all the Notes authenticated by the
Trustee except for those canceled by it, those delivered to it for cancellation,
those reductions in the interest in a Global Note effected by the Trustee in
accordance with the provisions hereof, and those described in this Section as
not outstanding. Except as set forth in Section 2.09 hereof, a Note does not
cease to be outstanding because the Company or an Affiliate of the Company holds
the Note; however, Notes held by the Company or a Subsidiary of the Company
shall not be deemed to be outstanding for purposes of Section 3.07(b) hereof.
If a Note is replaced pursuant to Section 2.07 hereof, it ceases to be
outstanding unless the Trustee receives proof satisfactory to it that the
replaced Note is held by a bona fide purchaser.
If the principal amount at maturity of any Note is considered paid under
Section 4.01 hereof, it ceases to be outstanding and interest on it ceases to
accrue.
If the Paying Agent (other than the Company, a Subsidiary or an Affiliate
of any thereof) holds, on a redemption date or maturity date, money sufficient
to pay Notes payable on that date, then on and after that date such Notes shall
be deemed to be no longer outstanding and shall cease to accrue interest.
Section 2.09. Treasury Notes.
In determining whether the Holders of the required principal amount at
maturity of Notes have concurred in any direction, waiver or consent, Notes
owned by the Company, or by any Person directly or indirectly controlling or
controlled by or under direct or indirect common control with the Company, shall
be considered as though not outstanding, except that for the purposes of
determining whether the Trustee shall be protected in relying on any such
direction, waiver or consent, only Notes that the Trustee knows are so owned
shall be so disregarded.
Section 2.10. Temporary Notes.
Until certificates representing Notes are ready for delivery, the Company
may prepare and the Trustee, upon receipt of an Authentication Order, shall
authenticate temporary Notes. Temporary Notes shall be substantially in the
form of certificated Notes but may have variations that the Company considers
appropriate for temporary Notes and as shall be reasonably acceptable to the
Trustee. Without unreasonable delay, the Company shall prepare and the Trustee
shall authenticate definitive Notes in exchange for temporary Notes.
Holders of temporary Notes shall be entitled to all of the benefits of
this Indenture.
Section 2.11. Cancellation.
The Company at any time may deliver Notes to the Trustee for cancellation.
The Registrar and Paying Agent shall forward to the Trustee any Notes
surrendered to them for registration of transfer, exchange or payment. The
Trustee and no one else shall cancel all Notes surrendered for registration of
transfer, exchange, payment, replacement or cancellation and shall destroy
canceled Notes (subject to the record retention requirement of the Exchange
Act). Certification of the destruction of all canceled Notes shall be delivered
to the Company. The Company may not issue new Notes to replace Notes that it
has paid or that have been delivered to the Trustee for cancellation.
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Section 2.12. Defaulted Interest.
If the Company defaults in a payment of interest on the Notes, it shall
pay the defaulted interest in any lawful manner, plus, to the extent lawful,
interest payable on the defaulted interest, to the Persons who are Holders on a
subsequent special record date, in each case at the rate provided in the Notes
and in Section 4.01 hereof. The Company shall notify the Trustee in writing of
the amount of defaulted interest proposed to be paid on each Note and the date
of the proposed payment. The Company shall fix or cause to be fixed each such
special record date and payment date, provided that no such special record date
shall be less than 10 days prior to the related payment date for such defaulted
interest. At least 15 days before the special record date, the Company (or, upon
the written request of the Company, the Trustee in the name and at the expense
of the Company) shall mail or cause to be mailed to Holders a notice that states
the special record date, the related payment date and the amount of such
interest to be paid.
ARTICLE 3
REDEMPTION AND PREPAYMENT
Section 3.01. Notices to Trustee.
If the Company elects to redeem Notes pursuant to the optional redemption
provisions of Section 3.07 hereof, it shall furnish to the Trustee, at least 30
days but not more than 60 days before a redemption date, an Officers'
Certificate setting forth (1) the clause of this Indenture pursuant to which the
redemption shall occur, (2) the redemption date, (3) the principal amount at
maturity of Notes to be redeemed and (4) the redemption price (expressed as a
percentage of the principal amount at maturity).
Section 3.02. Selection of Notes to Be Redeemed.
If less than all of the Notes are to be redeemed or purchased in an offer
to purchase at any time, the Trustee shall select the Notes to be redeemed as
follows:
(1) if the Notes are listed on any national securities exchange, in
compliance with the requirements of the principal national securities exchange,
if any, on which the Notes are listed; or
(2) if the Notes are not listed on any national securities exchange, on a
pro rata basis, by lot or by such other method as the Trustee shall deem fair
and appropriate.
No Notes of $1,000 of principal amount at maturity or less will be
redeemed in part. Except as provided in the preceding sentence, provisions of
this Indenture that apply to Notes called for redemption also apply to portions
of Notes called for redemption. Notices of redemption will be mailed by first
class mail at least 30 but not more than 60 days before the redemption date to
each Holder of Notes to be redeemed at its registered address. Notices of
redemption may not be conditional.
If any Note is to be redeemed in part only, the notice of redemption that
relates to such Note shall state the portion of the principal amount at
maturity of that Note to be redeemed. A new Note in principal amount at
maturity equal to the unredeemed portion of the original Note presented for
redemption will be issued in the name of the Holder thereof upon cancellation of
the original Note. Notes called for redemption become due on the date fixed for
redemption. On and after the redemption date, interest ceases to accrue or
accrete on Notes or portions of them called for redemption.
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Section 3.03. Notice of Redemption.
Subject to the provisions of Section 3.09 hereof, at least 30 days but not
more than 60 days before a redemption date, the Company shall mail or cause to
be mailed, by first class mail, a notice of redemption to each Holder whose
Notes are to be redeemed at its registered address.
The notice shall identify the Notes to be redeemed and shall state:
(1) the redemption date;
(2) the redemption price;
(3) if any Note is being redeemed in part, the portion of the principal
amount at maturity of such Note to be redeemed and that, after the redemption
date upon surrender of such Note, a new Note or Notes in principal amount at
maturity equal to the unredeemed portion shall be issued upon cancellation of
the original Note;
(4) the name and address of the Paying Agent;
(5) that Notes called for redemption must be surrendered to the Paying
Agent to collect the redemption price;
(6) that, unless the Company defaults in making such redemption payment,
interest on Notes called for redemption ceases to accrue on and after the
redemption date;
(7) the paragraph of the Notes and/or Section of this Indenture pursuant
to which the Notes called for redemption are being redeemed; and
(8) that no representation is made as to the correctness or accuracy of
the CUSIP number, if any, listed in such notice or printed on the Notes.
At the Company's request, the Trustee shall give the notice of redemption
in the Company's name and at its expense; provided, however, that the Company
shall have delivered to the Trustee, at least 45 days prior to the redemption
date, an Officers' Certificate requesting that the Trustee give such notice and
setting forth the information to be stated in such notice as provided in the
preceding paragraph.
Section 3.04. Effect of Notice of Redemption.
Once notice of redemption is mailed in accordance with Section 3.03
hereof, Notes called for redemption become irrevocably due and payable on the
redemption date at the redemption price. A notice of redemption may not be
conditional.
Section 3.05. Deposit of Redemption Price.
One Business Day prior to the redemption date, the Company shall deposit
with the Trustee or with the Paying Agent money sufficient to pay the redemption
price of and accrued interest on all Notes, if any, to be redeemed on that date.
The Trustee or the Paying Agent shall promptly return to the Company any money
deposited with the Trustee or the Paying Agent by the Company in excess of the
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amounts necessary to pay the redemption price of, and accrued interest, if any,
on all Notes to be redeemed.
If the Company complies with the provisions of the preceding paragraph, on
and after the redemption date, Accreted Value will cease to accrete on the Notes
or the portions of the Notes called for redemption prior to the Full Accretion
Date, or interest shall cease to accrue on the Notes or the portions of Notes
called for redemption on or after the Full Accretion Date. If a Note is
redeemed on or after an interest record date but on or prior to the related
interest payment date, then any accrued and unpaid interest shall be paid to the
Person in whose name such Note was registered at the close of business on such
record date. If any Note called for redemption shall not be so paid upon
surrender for redemption because of the failure of the Company to comply with
the preceding paragraph, interest shall be paid on the unpaid principal, from
the redemption date until such principal is paid, and, to the extent lawful, on
any interest not paid on such unpaid principal, in each case at the rate
provided in the Notes and in Section 4.01 hereof.
Section 3.06. Notes Redeemed in Part.
Upon surrender of a Note that is redeemed in part, the Company shall issue
and, upon the Company's written request, the Trustee shall authenticate for the
Holder at the expense of the Company a new Note equal in principal amount at
maturity to the unredeemed portion of the Note surrendered.
Section 3.07. Optional Redemption.
(a) Except as provided in clause (b) of this Section 3.07, the Notes will
not be redeemable at the Company's option prior to May 15 , 2004. On or after
May 15, 2004, the Company may redeem all or a part of the Notes upon not less
than 30 nor more than 60 days' notice, at the redemption prices (expressed as
percentages of principal amount at maturity) set forth below plus accrued and
unpaid interest, if any, on the Notes redeemed to the applicable redemption date
(subject to the right of Holders of record on the relevant record date to
receive interest due on the relevant interest payment date), if redeemed during
the twelve-month period beginning on May 15 of the years indicated below:
Year Percentage
- ---- ----------------
2004........................................................................... 105.187%
2005........................................................................... 103.458%
2006........................................................................... 101.729%
2007 and thereafter............................................................ 100.000%
(b) Notwithstanding the provisions of clause (a) of this Section 3.07, at
any time during the first 36 months after the date of the original issuance of
the Notes, the Company may on any one or more occasions redeem up to 35% of the
aggregate principal amount at maturity of the Notes originally issued at a
redemption price equal to 110.375% of the Accreted Value of the Notes to be
redeemed on the redemption date with the net cash proceeds of one or more Public
Equity Offerings and/or Strategic Equity Investments provided that:
(1) at least 65% of the aggregate principal amount at maturity of the
Notes originally issued remains outstanding immediately after the occurrence of
such redemption (excluding Notes held by the Company or any of its
Subsidiaries); and
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(2) the redemption occurs within 60 days of the date of the closing of
such Public Equity Offering or Strategic Equity Investment.
(c) Any redemption pursuant to this Section 3.07 shall be made pursuant to
the provisions of Section 3.01 through 3.06 hereof.
Section 3.08. Mandatory Redemption.
The Company shall not be required to make mandatory redemption or sinking
fund payments with respect to the Notes.
Section 3.09. Offer to Purchase by Application of Excess Proceeds.
In the event that, pursuant to Section 4.10 hereof, the Company shall be
required to commence an offer to all Holders to purchase Notes (an "Asset Sale
Offer"), it shall follow the procedures specified below.
The Asset Sale Offer shall remain open for a period of 20 Business Days
following its commencement and no longer, except to the extent that a longer
period is required by applicable law (the "Offer Period"). No later than five
Business Days after the termination of the Offer Period (the "Purchase Date"),
the Company shall purchase the Accreted Value or principal amount, as the case
may be, of Notes required to be purchased pursuant to Section 4.10 hereof (the
"Offer Amount") or, if less than the Offer Amount has been tendered, all Notes
tendered in response to the Asset Sale Offer. Payment for any Notes so
purchased shall be made in the same manner as interest payments are made.
If the Purchase Date is on or after an interest record date and on or
before the related interest payment date, any accrued and unpaid interest shall
be paid to the Person in whose name a Note is registered at the close of
business on such record date, and no additional interest shall be payable to
Holders who tender Notes pursuant to the Asset Sale Offer.
Upon the commencement of an Asset Sale Offer, the Company shall send, by
first class mail, a notice to the Trustee and each of the Holders, with a copy
to the Trustee. The notice shall contain all instructions and materials
necessary to enable such Holders to tender Notes pursuant to the Asset Sale
Offer. The Asset Sale Offer shall be made to all Holders. The notice, which
shall govern the terms of the Asset Sale Offer, shall state:
(a) that the Asset Sale Offer is being made pursuant to this Section 3.09
and Section 4.10 hereof and the length of time the Asset Sale Offer shall remain
open;
(b) the Offer Amount, the purchase price and the Purchase Date;
(c) that any Note not tendered or accepted for payment shall continue to
accrete or accrue interest;
(d) that, unless the Company defaults in making such payment, any Note
accepted for payment pursuant to the Asset Sale Offer shall cease to accrete or
accrue interest after the Purchase Date;
(e) that Holders electing to have a Note purchased pursuant to an Asset
Sale Offer may elect to have Notes purchased in integral multiples of $1,000
only;
30
(f) that Holders electing to have a Note purchased pursuant to any Asset
Sale Offer shall be required to surrender the Note, with the form entitled
"Option of Holder to Elect Purchase" on the reverse of the Note completed, or
transfer by book-entry transfer, to the Company, a depositary, if appointed by
the Company, or a Paying Agent at the address specified in the notice at least
three days before the Purchase Date;
(g) that Holders shall be entitled to withdraw their election if the
Company, the depositary or the Paying Agent, as the case may be, receives, not
later than the expiration of the Offer Period, a telegram, telex, facsimile
transmission or letter setting forth the name of the Holder, the principal
amount at maturity of the Note the Holder delivered for purchase and a statement
that such Holder is withdrawing his election to have such Note purchased;
(h) that, if the aggregate principal amount at maturity of Notes
surrendered by Holders exceeds the Offer Amount, the Company shall select the
Notes to be purchased on a pro rata basis (with such adjustments as may be
deemed appropriate by the Company so that only Notes in denominations of $1,000,
or integral multiples thereof, shall be purchased); and
(i) that Holders whose Notes were purchased only in part shall be issued
new Notes equal in principal amount at maturity to the unpurchased portion of
the Notes surrendered (or transferred by book-entry transfer).
On or before the Purchase Date, the Company shall, to the extent lawful,
accept for payment, on a pro rata basis to the extent necessary, the Offer
Amount of Notes or portions thereof tendered pursuant to the Asset Sale Offer,
or if less than the Offer Amount has been tendered, all Notes tendered, and
shall deliver to the Trustee an Officers' Certificate stating that such Notes or
portions thereof were accepted for payment by the Company in accordance with the
terms of this Section 3.09. The Company, the Depositary or the Paying Agent, as
the case may be, shall promptly (but in any case not later than five days after
the Purchase Date) mail or deliver to each tendering Holder an amount equal to
the purchase price of the Notes tendered by such Holder and accepted by the
Company for purchase, and the Company shall promptly issue a new Note, and the
Trustee, upon written request from the Company shall authenticate and mail or
deliver such new Note to such Holder, in a principal amount at maturity equal to
any unpurchased portion of the Note surrendered. Any Note not so accepted shall
be promptly mailed or delivered by the Company to the Holder thereof. The
Company shall publicly announce the results of the Asset Sale Offer on the
Purchase Date.
Other than as specifically provided in this Section 3.09, any purchase
pursuant to this Section 3.09 shall be made pursuant to the provisions of
Sections 3.01 through 3.06 hereof.
ARTICLE 4
COVENANTS
Section 4.01. Payment of Notes.
The Company shall pay or cause to be paid the principal of, premium, if
any, and interest on the Notes on the dates and in the manner provided in the
Notes. Principal, premium, if any, and interest shall be considered paid on the
date due if the Paying Agent, if other than the Company or a Subsidiary thereof,
holds as of 10:00 a.m. Eastern Time on the due date money deposited by the
Company in
31
immediately available funds and designated for and sufficient to pay all
principal, premium, if any, and interest then due.
The Company shall pay interest (including post-petition interest in any
proceeding under any Bankruptcy Law) on overdue principal at the rate equal to
1% per annum in excess of the then applicable interest rate on the Notes to the
extent lawful; it shall pay interest (including post-petition interest in any
proceeding under any Bankruptcy Law) on overdue installments of interest
(without regard to any applicable grace period) at the same rate to the extent
lawful.
Section 4.02. Maintenance of Office or Agency.
The Company shall maintain in the Borough of Manhattan, the City of New
York, an office or agency (which may be an office of the Trustee or an affiliate
of the Trustee, Registrar or co-registrar) where Notes may be surrendered for
registration of transfer or for exchange and where notices and demands to or
upon the Company in respect of the Notes 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 Corporate Trust Office of the
Trustee.
The Company may also from time to time designate one or more other offices
or agencies where the Notes may be presented or surrendered for any or all such
purposes and may from time to time rescind such designations; provided, however,
that no such designation or rescission shall in any 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 designates the Corporate Trust Office of the Trustee as
one such office or agency of the Company in accordance with Section 2.03 hereof.
Section 4.03. Reports.
Whether or not required by the SEC, so long as any Notes are outstanding,
the Company shall furnish to the Holders of Notes:
(1) all quarterly and annual financial information that would be
required to be contained in a filing with the SEC on Forms 10-Q and 10-K if
the Company were required to file such Forms, including a ''Management's
Discussion and Analysis of Financial Condition and Results of Operations''
that describes the financial condition and results of operations of the
Company and its consolidated Subsidiaries (showing in reasonable detail, in
the footnotes to the financial statements and in the ''Management's
Discussion and Analysis of Financial Condition and Results of Operations''
(in each case to the extent not prohibited by the SEC's rules and
regulations):
(a) the financial condition and results of operations of the
Company and its Restricted Subsidiaries separate from the financial
condition and results of operations of the Unrestricted Subsidiaries
of the Company; and
(b) the Tower Cash Flow for the most recently completed fiscal
quarter and the Adjusted Consolidated Cash Flow for the most recently
completed four-quarter period)
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and, with respect to the annual information only, a report thereon by
the Company's certified independent accountants; and
(2) all current reports that would be required to be filed with the
SEC on Form 8-K if the Company were required to file such reports, in each
case within the time periods specified in the Company's rules and
regulations.
In addition, whether or not required by the rules and regulations of the
SEC, the Company shall file a copy of all such information and reports with the
SEC for public availability within the time periods specified in the SEC's rules
and regulations (unless the SEC will not accept such a filing) and make such
information available to securities analysts and prospective investors upon
request. The Company shall at all times comply with TIA (S) 314(a).
Section 4.04. Compliance Certificate.
(1) The Company shall deliver to the Trustee, within 90 days after the
end of each fiscal year, an Officers' Certificate stating that a review of
the activities of the Company and 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 its obligations under this Indenture, and further
stating, as to each such Officer signing such certificate, that to the best
of his or her knowledge the Company has kept, observed, performed and
fulfilled each and every covenant contained in this Indenture and is not in
default in the performance or observance of any of the terms, provisions
and conditions of this Indenture (or, if a Default or Event of Default
shall have occurred, describing all such Defaults or Events of Default of
which he or she may have knowledge and what action the Company is taking or
proposes to take with respect thereto) and that to the best of his or her
knowledge no event has occurred and remains in existence by reason of which
payments on account of the principal of or interest, if any, on the Notes
is prohibited or if such event has occurred, a description of the event and
what action the Company is taking or proposes to take with respect thereto.
(2) So long as not contrary to the then current recommendations of the
American Institute of Certified Public Accountants, the year-end financial
statements delivered pursuant to Section 4.03(a) above shall be accompanied
by a written statement of the Company's independent public accountants (who
shall be a firm of established national reputation) that in making the
examination necessary for certification of such financial statements,
nothing has come to their attention that would lead them to believe that
the Company has violated any provisions of Article 4 or Article 5 hereof
or, if any such violation has occurred, specifying the nature and period of
existence thereof, it being understood that such accountants shall not be
liable directly or indirectly to any Person for any failure to obtain
knowledge of any such violation.
(3) The Company shall, so long as any of the Notes are outstanding,
deliver to the Trustee, forthwith upon any Officer becoming aware of any
Default or Event of Default, an Officers' Certificate specifying such
Default or Event of Default and what action the Company is taking or
proposes to take with respect thereto.
33
Section 4.05. Taxes.
The Company shall pay, and shall cause each of its Subsidiaries to pay,
prior to delinquency, all material taxes, assessments, and governmental levies
except such as are contested in good faith and by appropriate proceedings or
where the failure to effect such payment is not adverse in any material respect
to the Holders of the Notes.
Section 4.06. Stay, Extension and Usury Laws.
The Company covenants (to the extent that it may lawfully do so) that it
shall not at any time insist upon, plead, or in any manner whatsoever claim or
take the benefit or advantage of, any stay, extension or usury law wherever
enacted, now or at any time hereafter in force, that may affect the covenants or
the performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such
law, and covenants that it shall not, by resort to any such law, hinder, delay
or impede the execution of any power herein granted to the Trustee, but shall
suffer and permit the execution of every such power as though no such law has
been enacted.
Section 4.07. Restricted Payments.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly:
(1) declare or pay any dividend or make any other payment or
distribution on account of the Company's or any of its Restricted
Subsidiaries' Equity Interests (including, without limitation, any payment
in connection with any merger or consolidation involving the Company or any
of its Restricted Subsidiaries) or to the direct or indirect holders of the
Company's or any of its Restricted Subsidiaries' Equity Interests in their
capacity as such (other than dividends or distributions payable in Equity
Interests (other than Disqualified Stock) of the Company or to the Company
or a Restricted Subsidiary of the Company);
(2) purchase, redeem or otherwise acquire or retire for value
(including without limitation, in connection with any merger or
consolidation involving the Company) any Equity Interests of the Company or
any direct or indirect parent of the Company (other than any such Equity
Interests owned by the Company or any of its Restricted Subsidiaries);
(3) make any payment on or with respect to, or purchase, redeem,
defease or otherwise acquire or retire for value any Indebtedness that is
subordinated to the Notes, except a payment of interest or principal at
Stated Maturity; or
(4) make any Restricted Investment, (all such payments and other
actions set forth in these clauses (1) through (4) above being collectively
referred to as ''Restricted Payments''),
unless, at the time of and after giving effect to such Restricted Payment:
(1) no Default has occurred and is continuing or would occur as a
consequence of the Restricted Payment; and
(2) the Company would have been permitted to incur at least $1.00 of
additional Indebtedness pursuant to the Debt to Adjusted Consolidated Cash
Flow Ratio test set forth in the first paragraph of Section 4.09 hereof;
provided that the Company and its Restricted Subsidiaries
34
shall not be required to comply with this clause (2) in order to make any
Restricted Investment; and
(3) such Restricted Payment, together with the aggregate amount of all
other Restricted Payments made by the Company and its Restricted
Subsidiaries after the date hereof (excluding Restricted Payments permitted
by clauses (2), (3) and (4) of the paragraph of exceptions below), is less
than the sum, without duplication, of:
(a) 100% of the Consolidated Cash Flow of the Company for the
period (taken as one accounting period) from the beginning of the
fiscal quarter during which this Indenture is executed to the end of
the Company's most recently ended fiscal quarter for which internal
financial statements are available at the time of such Restricted
Payment (or, if the Consolidated Cash Flow for such period is a
deficit, less 100% of the deficit), less 1.75 times the Consolidated
Interest Expense of the Company since the beginning of the fiscal
quarter during which this Indenture is executed; plus
(b) 100% of the aggregate net cash proceeds received by the
Company since the beginning of the fiscal quarter during which this
Indenture is executed as a contribution to its common equity capital
or from the issue or sale of Equity Interests of the Company (other
than Disqualified Stock and except to the extent such net cash
proceeds are used to incur new Indebtedness outstanding pursuant to
clause (11) of the second paragraph of Section 4.09 hereof) or from
the issue or sale of Disqualified Stock or debt securities of the
Company that have been converted into Equity Interests (other than
Equity Interests (or Disqualified Stock or convertible debt
securities) sold to a Subsidiary of the Company and other than
Disqualified Stock or convertible debt securities that have been
converted into Disqualified Stock); plus
(c) to the extent that any Restricted Investment that was made
after the date hereof is sold for cash or otherwise liquidated or
repaid for cash, the lesser of:
(A) the cash return of capital with respect to the
Restricted Investment (less the cost of disposition, if any), and
(B) the initial amount of the Restricted Investment; plus
(d) to the extent that any Unrestricted Subsidiary of the Company
and all of its Subsidiaries are designated as Restricted Subsidiaries
after the date hereof, the lesser of:
(A) the fair market value of the Company's Investments in
such Subsidiaries as of the date of such designation; or
(B) the sum of:
(x) the fair market value of the Company's Investments
in such Subsidiaries as of the date on which such
Subsidiaries were originally designated as Unrestricted
Subsidiaries, and
(y) the amount of any Investments made in such
Subsidiaries subsequent to such designation (and treated as
Restricted Payments) by the Company or any Restricted
Subsidiary;
35
provided that:
(i) in the event the Unrestricted Subsidiaries designated as
Restricted Subsidiaries are CTSH and its Subsidiaries, the
references in clauses (A) and (B) of this clause (d) to fair
market value of the Company's Investments in such Subsidiaries
shall mean the amount by which the fair market value of all such
Investments exceeds 34.3% of the fair market value of CTSH and
its Subsidiaries as a whole; and
(ii) in the event the Unrestricted Subsidiaries designated
as Restricted Subsidiaries are CCAIC and its Subsidiaries, the
references in clauses (A) and (B) of this clause (d) to fair
market value of the Company's Investments in such Subsidiaries
shall mean the amount by which the fair market value of all such
Investments exceeds $250.0 million; plus
(e) 50% of any dividends received by the Company or a Restricted
Subsidiary after the date hereof from an Unrestricted Subsidiary of
the Company, to the extent that such dividends were not otherwise
included in Consolidated Net Income of the Company for such period.
The preceding provisions shall not prohibit:
(1) the payment of any dividend within 60 days after the date of
declaration of that dividend, if at said date of declaration such payment
would have complied with the provisions of this Indenture;
(2) the making of any Investment or the redemption, repurchase,
retirement, defeasance or other acquisition of any subordinated
Indebtedness or Equity Interests of the Company in exchange for, or out of
the net cash proceeds from the sale since the beginning of the fiscal
quarter during which this Indenture is executed (other than to a Subsidiary
of the Company) of Equity Interests of the Company (other than any
Disqualified Stock); provided that the net cash proceeds are not used to
incur new Indebtedness pursuant to clause (11) of the second paragraph of
Section 4.09 hereof); and provided further that, in each case, the amount
of any net cash proceeds that are so utilized will be excluded from clause
(3)(b) of the preceding paragraph;
(3) the defeasance, redemption, repurchase or other acquisition of
subordinated Indebtedness with the net cash proceeds from an incurrence of
Permitted Refinancing Indebtedness;
(4) the payment of any dividend by a Restricted Subsidiary of the
Company to the holders of its Equity Interests on a pro rata basis;
(5) the repurchase, redemption or other acquisition or retirement for
value of any Equity Interests of the Company or any Restricted Subsidiary
of the Company held by any member of the Company's (or any of its
Restricted Subsidiaries') management pursuant to any management equity
subscription agreement or stock option agreement in effect as of the date
hereof; provided that the aggregate price paid for all of the repurchased,
redeemed, acquired or retired Equity Interests may not exceed (a) $500,000
in any twelve-month period and (b) $5.0 million in the aggregate; or
36
(6) the payment of scheduled dividends on the Company's 123/4% Senior
Exchangeable Preferred Stock due 2010, whether paid in cash or in kind
through the issuance of additional shares of such preferred stock, all in
accordance with the certificate of designations governing such preferred
stock as in effect on the date hereof.
The Board of Directors may designate any Restricted Subsidiary to be an
Unrestricted Subsidiary if such designation would not cause a Default. For
purposes of making such determination, all outstanding Investments by the
Company and its Restricted Subsidiaries (except to the extent repaid in cash) in
the Subsidiary so designated will be deemed to be Restricted Payments at the
time of the designation and will reduce the amount available for Restricted
Payments under the first paragraph in this Section 4.07. All of those
outstanding Investments will be deemed to constitute Investments in an amount
equal to the fair market value of the Investments at the time of such
designation. Such designation will only be permitted if the Restricted Payment
would be permitted at the time and if the Restricted Subsidiary otherwise meets
the definition of an Unrestricted Subsidiary. The Board of Directors may
designate any Unrestricted Subsidiary to be a Restricted Subsidiary if the
designation would not cause a Default.
The amount of all Restricted Payments (other than cash) will be the fair
market value on the date of the Restricted Payment of the assets or securities
proposed to be transferred or issued by the Company or the applicable Restricted
Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair
market value of any property, assets or Investments required by this covenant to
be valued will be valued by the Board of Directors whose resolution with respect
to the determination will be delivered to the Trustee.
Section 4.08. Dividend and Other Payment Restrictions Affecting Subsidiaries.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to
exist or become effective any encumbrance or restriction on the ability of any
Restricted Subsidiary to:
(1) pay dividends or make any other distributions to the Company or
any of its Restricted Subsidiaries on its Capital Stock or with respect to
any other interest or participation in, or measured by, its profits;
(2) pay any indebtedness owed to the Company or any of its Restricted
Subsidiaries;
(3) make loans or advances to the Company or any of its Restricted
Subsidiaries; or
(4) transfer any of its properties or assets to the Company or any of
its Restricted Subsidiaries.
The preceding restrictions shall not apply to encumbrances or restrictions
existing under or by reason of:
(1) Existing Indebtedness as in effect on the date hereof, and any
amendments, modifications, restatements, renewals, increases, supplements,
refundings, replacements or refinancings thereof; provided that such
amendments, modifications, restatements, renewals, increases, supplements,
refundings, replacements or refinancings are no more restrictive, taken as
a whole, with respect to such dividend and other payment restrictions than
those contained in the applicable series of Existing Indebtedness as in
effect on the date hereof;
37
(2) Indebtedness of any Restricted Subsidiary under any Credit
Facility that is permitted to be incurred pursuant to Section 4.09 hereof;
provided that such Credit Facility and Indebtedness contain only such
encumbrances and restrictions on such Restricted Subsidiary's ability to
engage in the activities set forth in clauses (1) through (4) of the
preceding paragraph as are, at the time such Credit Facility is entered
into or amended, modified, restated, renewed, increased, supplemented,
refunded, replaced or refinanced, ordinary and customary for a Credit
Facility of that type as determined in the good faith judgment of the Board
of Directors (and evidenced in a board resolution), which determination
shall be conclusively binding;
(3) encumbrances and restrictions applicable to any Unrestricted
Subsidiary, as the same are in effect as of the date on which the
Subsidiary becomes a Restricted Subsidiary, and as the same may be amended,
modified, restated, renewed, increased, supplemented, refunded, replaced or
refinanced; provided that such amendments, modifications, restatements,
renewals, increases, supplements, refundings, replacement or refinancings
are no more restrictive, taken as a whole, with respect to the dividend and
other payment restrictions than those contained in the applicable series of
Indebtedness of such Subsidiary as in effect on the date on which such
Subsidiary becomes a Restricted Subsidiary;
(4) any Indebtedness incurred in compliance with Section 4.09 hereof
or any agreement pursuant to which such Indebtedness is issued if the
encumbrance or restriction applies only in the event of a payment default
or default with respect to a financial covenant contained in the
Indebtedness or agreement and the encumbrance or restriction is not
materially more disadvantageous to the Holders of the Notes than is
customary in comparable financings (as determined by the Company) and the
Company determines that any such encumbrance or restriction will not
materially affect the Company's ability to pay interest or principal on the
Notes;
(5) this Indenture;
(6) applicable law;
(7) any instrument governing Indebtedness or Capital Stock of a Person
acquired by the Company or any of its Restricted Subsidiaries as in effect
at the time that Person is acquired by the Company (except to the extent
the Indebtedness was incurred in connection with or in contemplation of the
acquisition), which encumbrance or restriction is not applicable to any
Person, or the properties or assets of any Person, other than the Person,
or the property or assets of the Person, so acquired, provided that, in the
case of Indebtedness, the Indebtedness was permitted by the terms hereof to
be incurred;
(8) customary non-assignment provisions in leases or licenses entered
into in the ordinary course of business;
(9) purchase money obligations for property acquired in the ordinary
course of business that impose restrictions of the nature described in
clause (5) in the second paragraph of Section 4.09 hereof on the property
so acquired;
(10) the provisions of agreements governing Indebtedness incurred
pursuant to clause (4) of the second paragraph of Section 4.09 hereof;
38
(11) any agreement for the sale of a Restricted Subsidiary that
restricts that Restricted Subsidiary pending its sale;
(12) Permitted Refinancing Indebtedness, provided that the
restrictions contained in the agreements governing the Permitted
Refinancing Indebtedness are no more restrictive, taken as a whole, than
those contained in the agreements governing the Indebtedness being
refinanced;
(13) Liens permitted to be incurred pursuant to the provisions of
Section 4.12 hereof that limit the right of the debtor to transfer the
assets subject to such Liens;
(14) provisions with respect to the disposition or distribution of
assets or property in joint venture agreements and other similar
agreements; and
(15) restrictions on cash or other deposits or net worth imposed by
customers under contracts entered into in the ordinary course of business.
Section 4.09. Incurrence of Indebtedness and Issuance of Preferred Stock.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, create, incur, issue, assume, guarantee
or otherwise become directly or indirectly liable, contingently or otherwise,
with respect to (collectively, ''incur'') any Indebtedness (including Acquired
Debt) and that the Company will not issue any Disqualified Stock and will not
permit any of its Restricted Subsidiaries to issue any shares of preferred
stock; provided that the Company may incur Indebtedness (including Acquired
Debt) or issue shares of Disqualified Stock and the Company's Restricted
Subsidiaries may incur Indebtedness (including Acquired Debt) or issue preferred
stock if, in each case, the Company's Debt to Adjusted Consolidated Cash Flow
Ratio at the time of incurrence of the Indebtedness or the issuance of the
preferred stock, after giving pro forma effect to such incurrence or issuance as
of such date and to the use of proceeds from such incurrence or issuance as if
the same had occurred at the beginning of the most recently ended four full
fiscal quarter period of the Company for which internal financial statements are
available, would have been no greater than 7.5 to 1.
The provisions of the first paragraph of this Section 4.09 shall not
prohibit the incurrence of any of the following items of Indebtedness or to the
issuance of any of the following items of Disqualified Stock or preferred stock
(collectively, ''Permitted Debt''):
(1) the incurrence by the Company or any of its Restricted
Subsidiaries of Indebtedness under Credit Facilities in an aggregate
principal amount (with letters of credit being deemed to have a principal
amount equal to the maximum potential liability of the Company and its
Restricted Subsidiaries thereunder) at any one time outstanding not to
exceed the product of $150,000 times the number of Completed Towers on the
date of such incurrence;
(2) the incurrence by the Company and its Restricted Subsidiaries of
the Existing Indebtedness;
(3) the incurrence by the Company of the Indebtedness represented by
the Notes and the Senior Notes, each issued on the date hereof;
(4) the issuance by the Company of additional shares of its 12 3/4%
Senior Exchangeable Preferred Stock due 2010 solely for the purpose of
paying dividends thereon and the incurrence
39
by the Company of Indebtedness represented by the Company's 12 3/4% Senior
Subordinated Exchange Debentures due 2010;
(5) the incurrence by the Company or any of its Restricted
Subsidiaries of Indebtedness represented by Capital Lease Obligations,
mortgage financings or purchase money obligations, in each case incurred
for the purpose of financing all or any part of the purchase price or cost
of construction or improvement of property, plant or equipment used in the
business of the Company or such Restricted Subsidiary, in an aggregate
principal amount, including all Permitted Refinancing Indebtedness incurred
to refund, refinance or replace any other Indebtedness incurred pursuant to
this clause (5), not to exceed $10.0 million at any one time outstanding;
(6) the incurrence by the Company or any of its Restricted
Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the
net proceeds of which are used to extend, refinance, renew, replace,
defease or refund Indebtedness of the Company or any of its Restricted
Subsidiaries or Disqualified Stock of the Company (other than intercompany
Indebtedness) that was permitted by this Indenture to be incurred under the
first paragraph of this Section 4.09 or clauses (2), (3), (4), (5) or this
clause (6) of this paragraph;
(7) the incurrence by the Company or any of its Restricted
Subsidiaries of intercompany Indebtedness between or among the Company and
any of its Restricted Subsidiaries; provided, however, that:
(i) if the Company is the obligor on such Indebtedness, such
Indebtedness is expressly subordinated to the prior payment in full in
cash of all Obligations with respect to the Notes of such series and
that:
(ii)(A) any subsequent issuance or transfer of Equity Interests
that results in any such Indebtedness being held by a Person other
than the Company or a Restricted Subsidiary, and
(B) any sale or other transfer of any such Indebtedness to a
Person that is not either the Company or a Restricted Subsidiary shall
be deemed, in each case, to constitute an incurrence of the
Indebtedness by the Company or the Restricted Subsidiary, as the case
may be;
(8) the incurrence by the Company or any of its Restricted
Subsidiaries of Hedging Obligations that are incurred for the purpose of
fixing or hedging interest rate risk with respect to any floating rate
Indebtedness that is permitted by the terms of this Indenture to be
outstanding or currency exchange risk;
(9) the guarantee by the Company or any of its Restricted Subsidiaries
of Indebtedness of the Company or a Restricted Subsidiary of the Company
that was permitted to be incurred by another provision of this Indenture;
(10) the incurrence by the Company or any of its Restricted
Subsidiaries of Acquired Debt in connection with the acquisition of assets
or a new Subsidiary and the incurrence by the Company's Restricted
Subsidiaries of Indebtedness as a result of the designation of an
Unrestricted Subsidiary as a Restricted Subsidiary; provided that, in the
case of any such
40
incurrence of Acquired Debt, such Acquired Debt was incurred by the prior
owner of such assets or such Restricted Subsidiary prior to such
acquisition by the Company or one of its Restricted Subsidiaries and was
not incurred in connection with, or in contemplation of, the acquisition by
the Company or one of its Restricted Subsidiaries; and provided further
that, in the case of any incurrence pursuant to this clause (10), as a
result of such acquisition by the Company or one of its Restricted
Subsidiaries, the Company's Debt to Adjusted Consolidated Cash Flow Ratio
at the time of incurrence of such Acquired Debt, after giving pro forma
effect to such incurrence as if the same had occurred at the beginning of
the most recently ended four full fiscal quarter period of the Company for
which internal financial statements are available, would have been less
than the Company's Debt to Adjusted Consolidated Cash Flow Ratio for the
same period without giving pro forma effect to such incurrence;
(11) the incurrence by the Company or any of its Restricted
Subsidiaries of Indebtedness or Disqualified Stock not to exceed, at any
one time outstanding, the sum of:
(i) 2.0 times the aggregate net cash proceeds, plus
(ii) 1.0 times the fair market value of non-cash proceeds
(evidenced by a resolution of the Board of Directors set forth in an
Officers' Certificate delivered to the Trustee),
in each case, from the issuance and sale, other than to a
Subsidiary, of Equity Interests (other than Disqualified Stock) of the
Company since the beginning of the fiscal quarter during which this
Indenture is executed (less the amount of such proceeds used to make
Restricted Payments as provided in clause (3)(b) of the first paragraph or
clause (2) of the second paragraph of Section 4.07 hereof); and
(12) the incurrence by the Company or any of its Restricted
Subsidiaries of additional Indebtedness and/or the issuance by the Company
of Disqualified Stock in an aggregate principal amount, accreted value or
liquidation preference, as applicable, at any time outstanding, not to
exceed $25.0 million.
In addition, the Company shall not:
(1) incur any Indebtedness that is contractually subordinated in right
of payment to any other Indebtedness of the Company unless such
Indebtedness is also contractually subordinated in right of payment to the
Notes on substantially identical terms; provided, however, that no
Indebtedness of the Company will be deemed to be contractually subordinated
in right of payment to any other Indebtedness of the Company solely by
virtue of being unsecured; and
(2) permit any of its Unrestricted Subsidiaries to incur any
Indebtedness other than Non-Recourse Debt.
For purposes of determining compliance with this covenant, in the event
that an item of Indebtedness meets the criteria of more than one of the
categories of Permitted Debt described in clauses (1) through (12) above or is
entitled to be incurred pursuant to the first paragraph of this covenant, the
Company shall, in its sole discretion, classify (or later reclassify in whole or
in part) such item of Indebtedness in any manner that complies with this
covenant. Accrual of interest, accretion or amortization of original issue
discount and the payment of interest in the form of additional Indebtedness
shall not be deemed to be an incurrence of Indebtedness for purposes of this
covenant. Indebtedness
41
under Credit Facilities outstanding on the date hereof shall be deemed to have
been incurred on such date in reliance on the exception provided by clause (1)
of the definition of Permitted Debt.
Section 4.10. Asset Sales.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, consummate an Asset Sale unless:
(1) the Company (or the Restricted Subsidiary, as the case may be) receives
consideration at the time of the Asset Sale at least equal to the fair market
value of the assets or Equity Interests issued or sold or otherwise disposed
of;
(2) fair market value is determined by the Board of Directors and evidenced
by a resolution of the Board of Directors set forth in an Officers'
Certificate delivered to the Trustee; and
(3) except in the case of a Tower Asset Exchange, at least 75% of the
consideration received in such Asset Sale by the Company or such Restricted
Subsidiary is in the form of cash or Cash Equivalents.
For purposes of this provision, each of the following shall be deemed to be
cash:
(a) any liabilities, as shown on the Company's or such Restricted
Subsidiary's most recent balance sheet, of the Company's or any Restricted
Subsidiary (other than contingent liabilities and liabilities that are by
their terms subordinated to the Notes or any guarantee of the Notes) that
are assumed by the transferee of any assets pursuant to a customary
novation agreement that releases the Company or the Restricted Subsidiary
from further liability; and
(b) any securities, notes or other obligations received by the Company
or any Restricted Subsidiary from the transferee that are converted by the
Company or the Restricted Subsidiary into cash within 20 days of the
applicable Asset Sale, to the extent of the cash received in that
conversion.
Within 365 days after the receipt of any Net Proceeds from an Asset Sale, the
Company or the Restricted Subsidiary may apply those Net Proceeds to:
(1) reduce Indebtedness under a Credit Facility;
(2) reduce other Indebtedness of any of the Restricted Subsidiaries;
(3) the acquisition of all or substantially all the assets of a Permitted
Business;
(4) the acquisition of Voting Stock of a Permitted Business from a Person
that is not a Subsidiary of the Company; provided that, after giving effect to
the acquisition, the Company or its Restricted Subsidiary owns a majority of
the Voting Stock of that business; or
(5) the making of a capital expenditure or the acquisition of other long-
term assets that are used or useful in a Permitted Business.
Pending the final application of any Net Proceeds, the Company may temporarily
reduce revolving credit borrowings or otherwise invest the Net Proceeds in any
manner that is not prohibited by this Indenture.
Any Net Proceeds from Asset Sales that are not applied or invested as provided
in the preceding paragraph shall be deemed to constitute "Excess Proceeds". When
the aggregate amount of Excess Proceeds exceeds $10.0 million, the Company shall
make an Asset Sale Offer to all Holders of Notes, and all holders of other
senior Indebtedness of the Company containing provisions similar to those set
42
forth in this Indenture with respect to offers to purchase or redeem with the
proceeds of sales of assets, to purchase the maximum principal amount (or
accreted value, as applicable) of Notes and such other senior Indebtedness of
the Company that may be purchased out of the Excess Proceeds. The offer price in
any Asset Sale Offer will be payable in cash and will be 100% of the Accreted
Value of the Notes redeemed prior to the Full Accretion Date, or 100% of the
principal amount of the Notes redeemed after the Full Accretion Date, plus
accrued and unpaid interest to the date of purchase, if any. In the case of any
other senior Indebtedness, the offer price shall be 100% of the principal amount
(or accreted value, as applicable) of the Indebtedness plus accrued and unpaid
interest thereon, if any, to the date of purchase. Each Asset Sale Offer shall
be made in accordance with the procedures set forth herein and the other senior
Indebtedness of the Company. If any Excess Proceeds remain after consummation of
an Asset Sale Offer, the Company may use the remaining Excess Proceeds for any
purpose not otherwise prohibited by this Indenture. If the aggregate principal
amount, or Accreted Value, as applicable, of Notes and the other senior
Indebtedness of the Company tendered into the Asset Sale Offer exceeds the
amount of Excess Proceeds, the Trustee shall select the Notes and such other
senior Indebtedness to be purchased on a pro rata basis. Upon completion of the
Asset Sale Offer, the amount of Excess Proceeds shall be reset at zero.
Section 4.11. Transactions with Affiliates.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, make any payment to, or sell, lease, transfer or otherwise
dispose of any of its properties or assets to, or purchase any property or
assets from, or enter into or make or amend any transaction, contract,
agreement, understanding, loan, advance or guarantee with, or for the benefit
of, any Affiliate (each of the foregoing, an ''Affiliate Transaction''), unless:
(1) such Affiliate Transaction is on terms that are no less favorable
to the Company or the relevant Restricted Subsidiary than those that would
have been obtained in a comparable transaction by the Company or such
Restricted Subsidiary with an unrelated Person; and
(2) the Company delivers to the Trustee:
(a) with respect to any Affiliate Transaction or series of
related Affiliate Transactions involving aggregate consideration in
excess of $1.0 million, a resolution of the Board of Directors set
forth in an Officers' Certificate certifying that the Affiliate
Transaction complies with clause (1) above and that the Affiliate
Transaction has been approved by a majority of the disinterested
members of the Board of Directors; and
(b) with respect to any Affiliate Transaction or series of
related Affiliate Transactions involving aggregate consideration in
excess of $10.0 million, an opinion to the Holders of the Notes as to
the fairness of the Affiliate Transaction from a financial point of
view issued by an accounting, appraisal or investment banking firm of
national standing.
Notwithstanding the foregoing, the following items shall not be deemed
Affiliate Transactions:
(1) any employment arrangements with any executive officer of the
Company or a Restricted Subsidiary that is entered into by the Company or
any of its Restricted Subsidiaries in the ordinary course of business and
consistent with compensation arrangements of similarly situated executive
officers at comparable companies engaged in Permitted Businesses;
(2) transactions between or among the Company and/or its Restricted
Subsidiaries;
43
(3) payment of directors fees in an aggregate annual amount not to
exceed $25,000 per Person;
(4) Restricted Payments that are permitted under Section 4.07 hereof;
(5) the issuance or sale of Equity Interests (other than Disqualified
Stock) of the Company; and
(6) transactions pursuant to the provisions of the Governance
Agreement, the Rights Agreement, the Stockholders' Agreement, the CTSH
Shareholders' Agreement, the CTI Services Agreement, the CTI Operating
Agreement and the Crown Transition Agreements, as the same are in effect on
the date hereof.
Section 4.12. Liens.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, create, incur, assume or suffer to
exist any Lien securing Indebtedness or trade payables on any asset now owned or
hereafter acquired, or any income or profits therefrom or assign or convey any
right to receive income therefrom, except Permitted Liens.
Section 4.13. Business Activities.
The Company shall not, and shall not permit any Subsidiary to, engage in
any business other than Permitted Businesses, except to the extent as would not
be material to the Company and its Subsidiaries taken as a whole.
Section 4.14. Corporate Existence.
Subject to Article 5 hereof, the Company shall do or cause to be done all
things necessary to preserve and keep in full force and effect:
(1) its corporate existence, and the corporate, partnership or other
existence of each of its Subsidiaries, in accordance with the respective
organizational documents (as the same may be amended from time to time) of
the Company or any such Subsidiary and
(2) the rights (charter and statutory), licenses and franchises of the
Company and its Subsidiaries; provided, however, that the Company shall not
be required to preserve any such right, license or franchise, or the
corporate, partnership or other existence of any of its Subsidiaries, if
the Board of Directors shall determine that the preservation thereof is no
longer desirable in the conduct of the business of the Company and its
Subsidiaries, taken as a whole, and that the loss thereof is not adverse in
any material respect to the Holders of the Notes.
Section 4.15. Offer to Repurchase Upon Change of Control.
If a Change of Control occurs, the Company shall make an offer (a "Change
of Control Offer") to each Holder to repurchase all or any part (equal to $1,000
or an integral multiple thereof) of each Holder's Notes at a purchase price, in
cash, equal to 101% of the Accreted Value of the Notes repurchased prior to the
Full Accretion Date and 101% of the aggregate principal amount at maturity of
the Notes repurchased after the Full Accretion Date, plus accrued and unpaid
interest thereon, if any, (subject to the right of Holders of record on the
44
relevant record date to receive interest due on the relevant interest payment
date), to the date of purchase (the "Change of Control Payment"). Within 30
days following any Change of Control, the Company shall mail a notice to each
Holder describing the transaction or transactions that constitute a change of
control and stating:
(1) that the Change of Control Offer is being made pursuant to this
covenant and that all Notes tendered will be accepted for payment;
(2) the purchase price and the purchase date, which shall be no
earlier than 30 days and no later than 60 days from the date such notice is
mailed (the "Change of Control Payment Date");
(3) that any Note not tendered will continue to accrete or accrue
interest;
(4) that, unless the Company defaults in the payment of the Change of
Control Payment, all Notes accepted for payment pursuant to the Change of
Control Offer shall cease to accrete or accrue interest after the Change of
Control Payment Date;
(5) that Holders electing to have any Notes purchased pursuant to a
Change of Control Offer will be required to surrender the Notes, with the
form entitled "Option of Holder to Elect Purchase" on the reverse of the
Notes completed, to the Paying Agent at the address specified in the notice
prior to the close of business on the third Business Day preceding the
Change of Control Payment Date;
(6) that Holders will be entitled to withdraw their election if the
Paying Agent receives, not later than the close of business on the second
Business Day preceding the Change of Control Payment Date, a telegram,
telex, facsimile transmission or letter setting forth the name of the
Holder, the principal amount at maturity of Notes delivered for purchase,
and a statement that such Holder is withdrawing his election to have the
Notes purchased; and
(7) that Holders whose Notes are being purchased only in part will be
issued new Notes equal in principal amount at maturity to the unpurchased
portion of the Notes surrendered, which unpurchased portion must be equal
to $1,000 in principal amount at maturity or an integral multiple thereof.
On the Change of Control Payment Date, the Company shall, to the
extent lawful,
(1) accept for payment all Notes or portions of the Notes properly
tendered pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the Change of
Control Payment in respect of all Notes or portions of the Notes so
tendered; and
(3) deliver or cause to be delivered to the Trustee the Notes so
accepted together with an Officers' Certificate stating the aggregate
principal amount at maturity of Notes or portions thereof being purchased
by the Company.
The Paying Agent shall promptly mail to each Holder of Notes properly
tendered payment in an amount equal to the purchase price for the Notes (the
"Change of Control Payment"), and the Trustee shall promptly authenticate and
mail (or cause to be transferred by book entry) to each Holder a new Note equal
in principal amount at maturity to any unpurchased portion of the Notes
surrendered by such
45
Holder, if any; provided, that each such new Note shall be in a principal amount
at maturity of $1,000 or an integral multiple thereof. The Company shall
publicly announce the results of the Change of Control Offer on or as soon as
practicable after the Change of Control Payment Date.
The Change of Control provisions described above shall be applicable
whether or not any other provisions of this Indenture are applicable. The
Company shall comply with the requirements of Section 14(e) of the Exchange Act
and any other securities laws or regulations to the extent those laws and
regulations are applicable to any Change of Control Offer. If the provisions of
any of the applicable securities laws or securities regulations conflict with
the provisions of this Section 4.15, the Company shall comply with the
applicable securities laws and regulations and shall not be deemed to have
breached its obligations under this Section 4.15 by virtue of the compliance.
The Company shall not be required to make a Change of Control Offer upon a
Change of Control if a third party makes the Change of Control Offer in the
manner, at the times and otherwise in compliance with the requirements set forth
in this Indenture applicable to a Change of Control Offer made by the Company
and purchases all Notes properly tendered and not withdrawn under such Change of
Control Offer. The provisions under this Indenture relating to the Company's
obligation to make an offer to repurchase the Notes as a result of a Change of
Control may be waived or modified with the written consent of the Holders of a
at least a majority in principal amount at maturity of the Notes then
outstanding.
Section 4.16. Sale and Leaseback Transactions.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, enter into any sale and leaseback transaction; provided,
however, that the Company or any of its Restricted Subsidiaries may enter into a
sale and leaseback transaction if:
(1) the Company or such Restricted Subsidiary, as applicable, could
have:
(a) incurred Indebtedness in an amount equal to the Attributable
Debt relating to such sale and leaseback transaction pursuant to the
Debt to Adjusted Consolidated Cash Flow Ratio test set forth in the
first paragraph of Section 4.09 hereof; or
(b) incurred a Lien to secure such Indebtedness pursuant to the
provisions of Section 4.12 hereof;
(2) the gross cash proceeds of such sale and leaseback transaction are
at least equal to the fair market value (as determined in good faith by the
Board of Directors) of the property that is the subject of the sale and
leaseback transaction; and
(3) the transfer of assets in the sale and leaseback transaction is
permitted by, and the Company applies the proceeds of such transaction in
compliance with, Section 4.10 hereof.
Section 4.17. Limitation on Issuances and Sales of Capital Stock of Restricted
Subsidiaries.
The Company:
(1) shall not, and shall not permit any of its Restricted Subsidiaries
to, transfer, convey, sell, lease or otherwise dispose of any Equity
Interests in any Restricted Subsidiary of the Company to any Person (other
than the Company or a Wholly Owned Restricted Subsidiary of the Company);
and
46
(2) shall not permit any of its Restricted Subsidiaries to issue any
of its Equity Interests (other than, if necessary, shares of its Capital
Stock constituting directors' qualifying shares) to any Person other than
to the Company or a Wholly Owned Restricted Subsidiary of the Company,
unless, in each such case:
(a) as a result of such transfer, conveyance, sale, lease or
other disposition or issuance, such Restricted Subsidiary no longer
constitutes a Subsidiary; and
(b) the cash Net Proceeds from such transfer, conveyance, sale,
lease or other disposition or issuance are applied in accordance with
Section 4.10 hereof.
Notwithstanding the foregoing, the issuance or sale of shares of Capital
Stock of any Restricted Subsidiary of the Company will not violate the
provisions of the immediately preceding sentence if such shares are issued or
sold in connection with (x) the formation or capitalization of a Restricted
Subsidiary or (y) a single transaction or a series of substantially
contemporaneous transactions whereby such Restricted Subsidiary becomes a
Restricted Subsidiary of the Company by reason of the acquisition of securities
or assets from another Person.
Section 4.18. Limitation on Issuances of Guarantees of Indebtedness.
The Company shall not permit any Restricted Subsidiary, directly or
indirectly, to Guarantee or pledge any assets to secure the payment of any other
Indebtedness of the Company unless such Subsidiary simultaneously executes and
delivers a supplemental indenture to this Indenture governing the Notes
providing for the Guarantee of the payment of the Notes by such Subsidiary,
which Guarantee shall be senior to or pari passu with such Subsidiary's
Guarantee of or pledge to secure such other Indebtedness. Notwithstanding the
foregoing, any Guarantee by a Subsidiary of the Notes shall provide by its terms
that it shall be automatically and unconditionally released and discharged upon
any sale, exchange or transfer, to any Person other than a Subsidiary of the
Company, of all of the Company's stock in, or all or substantially all the
assets of, such Subsidiary, which sale, exchange or transfer is made in
compliance with the applicable provisions of this Indenture. The form of such
Guarantee is attached as Exhibit C hereto.
ARTICLE 5
SUCCESSORS
Section 5.01. Merger, Consolidation, or Sale of Assets.
The Company shall not:
(1) consolidate or merge with or into (whether or not the Company is the
surviving corporation); or
(2) sell, assign, transfer, lease, convey or otherwise dispose of all or
substantially all of its properties or assets in one or more related
transactions, to another corporation, Person or entity, unless:
(a) either (A) the Company is the surviving corporation; or (B) the
entity or the Person formed by or surviving any such consolidation or merger (if
other than the Company) or to which the sale, assignment, transfer, lease,
conveyance or other disposition shall have been made is a corporation organized
or existing under the laws of the United States, any state thereof or the
District of Columbia;
47
(b) the entity or Person formed by or surviving any such consolidation
or merger (if other than the Company) or the entity or Person to which the sale,
assignment, transfer, lease, conveyance or other disposition shall have been
made assumes all the Obligations of the Company under the Notes and this
Indenture pursuant to a supplemental indenture in a form reasonably satisfactory
to the Trustee;
(c) immediately after such transaction no Default exists; and
(d) except in the case of (A) a merger of the Company with or into a
Wholly Owned Restricted Subsidiary of the Company and (B) a merger entered into
solely for the purpose of reincorporating the Company in another jurisdiction:
(x) in the case of a merger or consolidation in which the Company is the
surviving corporation, the Company's Debt to Adjusted Consolidated Cash Flow
Ratio at the time of the transaction, after giving pro forma effect to the
transaction as of such date for balance sheet purposes and as if the transaction
had occurred at the beginning of the most recently ended four full fiscal
quarter period of the Company for which internal financial statements are
available for income statement purposes, would have been less than the Company's
Debt to Adjusted Consolidated Cash Flow Ratio for the same period without giving
pro forma effect to such transaction, or
(y) in the case of any other such transaction, the Debt to Adjusted
Consolidated Cash Flow of the entity or Person formed by or surviving any such
consolidation or merger (if other than the Company), or to which the sale,
assignment, transfer, lease, conveyance or other disposition shall have been
made, at the time of the transaction, after giving pro forma effect to the
transaction as of such date for balance sheet purposes and as if such
transaction had occurred at the beginning of the most recently ended four full
fiscal quarter period of such entity or Person for which internal financial
statements are available for income statement purposes, would have been less
than the Company's Debt to Adjusted Consolidated Cash Flow Ratio for the same
period without giving pro forma effect to such transaction; provided that for
purposes of determining the Debt to Adjusted Consolidated Cash Flow Ratio of any
entity or Person for purposes of this clause (d) the entity or Person will be
substituted for the Company in the definition of Debt to Adjusted Consolidated
Cash Flow Ratio and the defined terms included therein under Section 1.01
hereof.
Section 5.02. Successor Corporation Substituted.
Upon any consolidation or merger, or any sale, assignment, transfer,
lease, conveyance or other disposition of all or substantially all of the assets
of the Company in accordance with Section 5.01 hereof, the successor corporation
formed by such consolidation or into or with which the Company is merged or to
which such sale, assignment, transfer, lease, conveyance or other disposition is
made shall succeed to, and be substituted for (so that from and after the date
of such consolidation, merger, sale, lease, conveyance or other disposition, the
provisions of this Indenture referring to the "Company" shall refer instead to
the successor corporation and not to the Company), and may exercise every right
and power of the Company under this Indenture with the same effect as if such
successor Person had been named as the Company herein; provided, however, that
the predecessor Company shall not be relieved from the obligation to pay the
principal of and interest on the Notes except in the case of a sale of all of
the Company's assets that meets the requirements of Section 5.01 hereof.
48
ARTICLE 6
DEFAULTS AND REMEDIES
Section 6.01. Events of Default.
Each of the following constitutes an Event of Default:
(1) default for 30 days in the payment when due of interest on the Notes;
(2) default in payment when due of the principal of or premium, if any, on
the Notes;
(3) failure by the Company or any of its Subsidiaries to comply with the
provisions described under Article 5 hereof or failure by CCIC to consummate
a Change of Control Offer or Asset Sale Offer in accordance with the
provisions of this Indenture;
(4) failure by the Company or any of its Subsidiaries for 30 days after
notice by the Trustee or the Holders of at least 25% in aggregate principal
amount at maturity of the Notes then outstanding viting as a single class, to
comply with any of its other agreements in the Indenture or the Notes;
(5) default under any mortgage, indenture or instrument under which there
may be issued or by which there may be secured or evidenced any Indebtedness
for money borrowed by the Company or any of its Significant Subsidiaries (or
the payment of which is guaranteed by the Company or any of its Significant
Subsidiaries) whether such Indebtedness or guarantee now exists, or is
created after the date of this Indenture, which default:
(a) is caused by a failure to pay principal of or premium, if any, or
interest on the Indebtedness prior to the expiration of the grace period
provided in such Indebtedness on the date of the default (a ''Payment
Default''); or
(b) results in the acceleration of the 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 under which there has been a Payment Default or the maturity
of which has been so accelerated, aggregates $20.0 million or more;
(6) failure by the Company or any of its Significant Subsidiaries to pay
final judgments aggregating in excess of $20.0 million, which judgments are
not paid, discharged or stayed for a period of 60 days; or
(7) the Company or any of its Restricted Subsidiaries pursuant to or
within the meaning of Bankruptcy Law:
(a) commences a voluntary case,
(b) consents to the entry of an order for relief against it in an
involuntary case,
(c) consents to the appointment of a Custodian of it or for all or
substantially all of its property,
(d) makes a general assignment for the benefit of its creditors, or
(e) generally is not paying its debts as they become due; or
(8) a court of competent jurisdiction enters an order or decree under any
Bankruptcy Law that:
49
(a) is for relief against the Company or any of its Restricted
Subsidiaries in an involuntary case;
(b) appoints a Custodian of the Company or any of its Restricted
Subsidiaries or for all or substantially all of the property of the Company
or any of its Restricted Subsidiaries; or
(c) orders the liquidation of the Company or any of its Restricted
Subsidiaries;
and the order or decree remains unstayed and in effect for 60 consecutive days.
Section 6.02. Acceleration.
If any Event of Default occurs and is continuing, the Trustee or the
Holders of at least 25% in principal amount at maturity of the then outstanding
Notes may declare all the Notes to be due and payable immediately. Upon any
such declaration, the principal of, and accrued and unpaid interest if any, on
such Notes shall become due and payable immediately. Notwithstanding the
foregoing, if an Event of Default specified in clause (7) or (8) of Section 6.01
hereof occurs with respect to the Company or any of its Restricted Subsidiaries,
all outstanding Notes shall be due and payable immediately without further
action or notice. The Holders of a majority in aggregate principal amount at
maturity of the then outstanding Notes by written notice to the Trustee may on
behalf of all of the Holders rescind an acceleration and its consequences if the
rescission would not conflict with any judgment or decree and if all existing
Events of Default (except nonpayment of principal, interest or premium that has
become due solely because of the acceleration) have been cured or waived.
Section 6.03. Other Remedies.
If an Event of Default occurs and is continuing, the Trustee may pursue
any available remedy to collect the payment of principal of, premium, if any,
and interest on the Notes or to enforce the performance of any provision of the
Notes or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any of
the Notes or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Holder of a Note in exercising any right or
remedy accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. All remedies
are cumulative to the extent permitted by law.
Section 6.04. Waiver of Past Defaults.
Holders of not less than a majority in aggregate principal amount at
maturity of the then outstanding Notes by notice to the Trustee may on behalf of
the Holders of all of the Notes waive an existing Default or Event of Default
and its consequences hereunder, except a continuing Default or Event of Default
in the payment of the principal of, premium, if any, or interest on, the Notes
(including in connection with an offer to purchase) (provided, however, that the
Holders of a majority in aggregate principal amount at maturity of the then
outstanding Notes may rescind an acceleration and its consequences, including
any related payment default that resulted from such acceleration). Upon any
such waiver, such Default shall cease to exist, and any Event of Default arising
therefrom shall be deemed to have been cured for every purpose of this
Indenture; but no such waiver shall extend to any subsequent or other Default or
impair any right consequent thereon.
50
Section 6.05. Control by Majority.
Holders of a majority in principal amount at maturity of the then
outstanding Notes may direct the time, method and place of conducting any
proceeding for exercising any remedy available to the Trustee or exercising any
trust or power conferred on it. However, the Trustee may refuse to follow any
direction that conflicts with law or this Indenture that the Trustee determines
may be unduly prejudicial to the rights of other Holders of Notes or that may
involve the Trustee in personal liability.
Section 6.06. Limitation on Suits.
A Holder of a Note may pursue a remedy with respect to this Indenture or
the Notes only if:
(1) the Holder of a Note gives to the Trustee written notice of a
continuing Event of Default;
(2) the Holders of at least 25% in principal amount at maturity of the
then outstanding Notes make a written request to the Trustee to pursue the
remedy;
(3) such Holder of a Note or Holders of Notes offer and, if requested,
provide to the Trustee indemnity satisfactory to the Trustee against any loss,
liability or expense;
(4) the Trustee does not comply with the request within 60 days after
receipt of the request and the offer and, if requested, the provision of
indemnity; and
(5) during such 60-day period the Holders of a majority in principal
amount at maturity of the then outstanding Notes do not give the Trustee a
direction inconsistent with the request.
A Holder of a Note may not use this Indenture to prejudice the rights of
another Holder of a Note or to obtain a preference or priority over another
Holder of a Note.
Section 6.07. Rights of Holders of Notes to Receive Payment.
Notwithstanding any other provision of this Indenture, the right of any
Holder of a Note to receive payment of principal of, premium, if any, and
interest on the Note, on or after the respective due dates expressed in the Note
(including in connection with an offer to purchase), or to bring suit for the
enforcement of any such payment on or after such respective dates, shall not be
impaired or affected without the consent of such Holder.
Section 6.08. Collection Suit by Trustee.
If an Event of Default specified in Section 6.01(a) or (b) occurs and is
continuing, the Trustee is authorized to recover judgment in its own name and as
trustee of an express trust against the Company for the whole amount of
principal of, premium, if any, and interest remaining unpaid on the Notes and
interest on overdue principal and, to the extent lawful, interest and such
further amount as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel.
Section 6.09. Trustee May File Proofs of Claim.
The Trustee is authorized to file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable
51
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel) and the Holders of the Notes allowed in any judicial proceedings
relative to the Company (or any other obligor upon the Notes), its creditors or
its property and shall be entitled and empowered to collect, receive and
distribute any money or other property payable or deliverable on any such claims
and any Custodian 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 to 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 7.07 hereof. To the extent that the
payment of any such compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 7.07 hereof out of the estate in any such proceeding, shall be denied
for any reason, payment of the same shall be secured by a Lien on, and shall be
paid out of, any and all distributions, dividends, money, securities and other
properties that the Holders may be entitled to receive in such proceeding
whether in liquidation or under any plan of reorganization or arrangement or
otherwise. 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 Notes or
the rights of any Holder, or to authorize the Trustee to vote in respect of the
claim of any Holder in any such proceeding.
Section 6.10. Priorities.
If the Trustee collects any money pursuant to this Article, it shall pay
out the money in the following order:
First: to the Trustee, its agents and attorneys for amounts due under
Section 7.07 hereof, including payment of all compensation, expense and
liabilities incurred, and all advances made, by the Trustee and the costs and
expenses of collection;
Second: to Holders of Notes for amounts due and unpaid on the Notes
for principal, premium, if any, and interest, ratably, without preference or
priority of any kind, according to the amounts due and payable on the Notes
for principal, premium, if any and interest, respectively; and
Third: to the Company or to such party as a court of competent
jurisdiction shall direct.
The Trustee may fix a record date and payment date for any payment to
Holders of Notes pursuant to this Section 6.10.
Section 6.11. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted by
it as a Trustee, a court in its discretion may require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in the suit, having due regard to
the merits and good faith of the claims or defenses made by the party litigant.
This Section does not apply to a suit by the Trustee, a suit by a Holder of a
Note pursuant to Section 6.07 hereof, or a suit by Holders of more than 10% in
principal amount at maturity of the then outstanding Notes.
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ARTICLE 7
TRUSTEE
Section 7.01. Duties of Trustee.
(a) If an Event of Default has occurred and is continuing, the Trustee
shall exercise such of the rights and powers vested in it by this Indenture, and
use the same degree of care and skill in its exercise, as a prudent person would
exercise or use under the circumstances in the conduct of such person's own
affairs.
(b) Except during the continuance of an Event of Default:
(i) the duties of the Trustee shall be determined solely by the express
provisions of this Indenture and the Trustee need perform only those duties that
are specifically set forth in this Indenture and no others, and no implied
covenants or obligations shall be read into this Indenture against the Trustee;
and
(ii) in the absence of bad faith on its part, the Trustee may conclusively
rely, as to the truth of the statements and the correctness of the opinions
expressed therein, upon certificates or opinions furnished to the Trustee and
conforming to the requirements of this Indenture. However, the Trustee shall
examine the certificates and opinions to determine whether or not they conform
to the requirements of this Indenture.
(c) The Trustee may not be relieved from liabilities for its own negligent
action, its own negligent failure to act, or its own willful misconduct, except
that:
(i) this paragraph does not limit the effect of paragraph (b) of this
Section;
(ii) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer, unless it is proved that the Trustee was
negligent in ascertaining the pertinent facts; and
(iii) the Trustee shall not be liable with respect to any action it takes
or omits to take in good faith in accordance with a direction received by it
pursuant to Section 6.05 hereof.
(d) Whether or not therein expressly so provided, every provision of this
Indenture that in any way relates to the Trustee is subject to paragraphs (a),
(b), and (c) of this Section.
(e) No provision of this Indenture shall require the Trustee to expend or
risk its own funds or incur any liability. The Trustee shall be under no
obligation to exercise any of its rights and powers under this Indenture at the
request of any Holders, unless such Holder shall have offered to the Trustee
security and indemnity satisfactory to it against any loss, liability or
expense.
(f) The Trustee shall not be liable for interest on any money received by
it except as the Trustee may agree in writing with the Company. Money held in
trust by the Trustee need not be segregated from other funds except to the
extent required by law.
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Section 7.02. Rights of Trustee.
(a) The Trustee may conclusively rely upon 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 require an
Officers' Certificate or an Opinion of Counsel or both. The Trustee shall not
be liable for any action it takes or omits to take in good faith in reliance on
such Officers' Certificate or Opinion of Counsel. The Trustee may consult with
counsel and the written and oral advice of such counsel or any Opinion of
Counsel shall be full and complete authorization and protection from liability
in respect of any action taken, suffered or omitted by it hereunder in good
faith and in reliance thereon.
(c) The Trustee may act through its attorneys and agents and shall not be
responsible for the misconduct or negligence of any agent appointed with due
care.
(d) The Trustee shall not be liable for any action it takes or omits to
take in good faith that it believes to be authorized or within the rights or
powers conferred upon it by this Indenture.
(e) Unless otherwise specifically provided in this Indenture, any demand,
request, direction or notice from the Company shall be sufficient if signed by
an Officer of the Company.
(f) The Trustee shall be under no obligation to exercise any of the rights
or powers vested in it by this Indenture at the request or direction of any of
the Holders unless such Holders shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses and liabilities that might be
incurred by it in compliance with such request or direction.
Section 7.03. Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become the owner
or pledgee of Notes and may otherwise deal with the Company or any Affiliate of
the Company with the same rights it would have if it were not Trustee. However,
in the event that the Trustee acquires any conflicting interest it must
eliminate such conflict within 90 days, apply to the SEC for permission to
continue as trustee or resign. Any Agent may do the same with like rights and
duties. The Trustee is also subject to Sections 7.10 and 7.11 hereof.
Section 7.04. Trustee's Disclaimer.
The Trustee shall not be responsible for and makes no representation as to
the validity or adequacy of this Indenture or the Notes, it shall not be
accountable for the Company's use of the proceeds from the Notes or any money
paid to the Company or upon the Company's direction under any provision of this
Indenture, it shall not be responsible for the use or application of any money
received by any Paying Agent other than the Trustee, and it shall not be
responsible for any statement or recital herein or any statement in the Notes or
any other document in connection with the sale of the Notes or pursuant to this
Indenture other than its certificate of authentication.
Section 7.05. Notice of Defaults.
If a Default or Event of Default occurs and is continuing and if it is
known to the Trustee, the Trustee shall mail to Holders of Notes a notice of the
Default or Event of Default within 90 days after it
54
occurs. Except in the case of a Default or Event of Default in payment of
principal of, premium, if any, or interest on any Note, the Trustee may withhold
the notice if and so long as a committee of its Responsible Officers in good
faith determines that withholding the notice is in the interests of the Holders
of the Notes.
Section 7.06. Reports by Trustee to Holders of the Notes.
Within 60 days after each May 15 beginning with the May 15 following the
date of this Indenture, and for so long as Notes remain outstanding, the Trustee
shall mail to the Holders of the Notes a brief report dated as of such reporting
date that complies with TIA (S) 313(a) (but if no event described in TIA (S)
313(a) has occurred within the twelve months preceding the reporting date, no
report need be transmitted). The Trustee also shall comply with TIA (S) 313(b).
The Trustee shall also transmit by mail all reports as required by TIA (S)
313(c).
A copy of each report at the time of its mailing to the Holders of Notes
shall be mailed to the Company and filed with the SEC and each stock exchange on
which the Notes are listed in accordance with TIA (S) 313(d). The Company shall
promptly notify the Trustee when the Notes are listed on any stock exchange.
Section 7.07. Compensation and Indemnity.
The Company shall pay to the Trustee from time to time reasonable
compensation for its acceptance of this Indenture and services hereunder. 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 promptly
upon request for all reasonable disbursements, advances and expenses incurred or
made by it in addition to the compensation for its services. Such expenses
shall include the reasonable compensation, disbursements and expenses of the
Trustee's agents and counsel.
The Company shall indemnify the Trustee against any and all losses,
liabilities or expenses incurred by it arising out of or in connection with the
acceptance or administration of its duties under this Indenture, including the
costs and expenses of enforcing this Indenture against the Company (including
this Section 7.07) and defending itself against any claim (whether asserted by
the Company or any Holder or any other person) or liability in connection with
the exercise or performance of any of its powers or duties hereunder, except to
the extent any such loss, liability or expense may be attributable to its
negligence or bad faith. The Trustee shall notify the Company promptly of any
claim for which it may seek indemnity. Failure by the Trustee to so notify the
Company shall not relieve the Company of its obligations hereunder. The Company
shall defend the claim and the Trustee shall cooperate in the defense. The
Trustee may have separate counsel and the Company shall pay the reasonable fees
and expenses of such counsel. The Company need not pay for any settlement made
without its consent, which consent shall not be unreasonably withheld.
The obligations of the Company under this Section 7.07 shall survive the
satisfaction and discharge of this Indenture.
To secure the Company's payment obligations in this Section, the Trustee
shall have a Lien prior to the Notes on all money or property held or collected
by the Trustee, except that held in trust to pay principal and interest on
particular Notes. Such Lien shall survive the satisfaction and discharge of
this Indenture.
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When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.01(g) or (h) hereof occurs, the expenses and the
compensation for the services (including the fees and expenses of its agents and
counsel) are intended to constitute expenses of administration under any
Bankruptcy Law.
The Trustee shall comply with the provisions of TIA (S) 313(b)(2) to the
extent applicable.
Section 7.08. Replacement of Trustee.
A resignation or removal of the Trustee and appointment of a successor
Trustee shall become effective only upon the successor Trustee's acceptance of
appointment as provided in this Section.
The Trustee may resign in writing at any time and be discharged from the
trust hereby created by so notifying the Company. The Holders of a majority in
principal amount at maturity of the then outstanding Notes may remove the
Trustee by so notifying the Trustee and the Company in writing. The Company may
remove the Trustee if:
(a) the Trustee fails to comply with Section 7.10 hereof;
(b) the Trustee is adjudged a bankrupt or an insolvent or an order for
relief is entered with respect to the Trustee under any Bankruptcy Law;
(c) a Custodian or 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 Holders
of a majority in principal amount at maturity of the then outstanding Notes may
appoint a successor Trustee to replace the successor Trustee appointed by the
Company.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company, or
the Holders of at least 10% in principal amount at maturity of the then
outstanding Notes may petition any court of competent jurisdiction for the
appointment of a successor Trustee.
If the Trustee, after written request by any Holder who has been a Holder
for at least six months, fails to comply with Section 7.10, such Holder may
petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its appointment
to the retiring Trustee and to the Company. Thereupon, the resignation or
removal of the retiring Trustee shall become effective, and the successor
Trustee shall have all the rights, powers and duties of the Trustee under this
Indenture. The successor Trustee shall mail a notice of its succession to
Holders. The retiring Trustee shall promptly transfer all property held by it
as Trustee to the successor Trustee, provided all sums owing to the Trustee
hereunder have been paid and subject to the Lien provided for in Section 7.07
hereof. Notwithstanding replacement of the Trustee pursuant to this Section
7.08, the Company's obligations under Section 7.07 hereof shall continue for the
benefit of the retiring Trustee.
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Section 7.09. Successor Trustee by Merger, etc.
If the Trustee consolidates, merges or converts into, or transfers all or
substantially all of its corporate trust business to, another corporation, the
successor corporation without any further act shall be the successor Trustee.
Section 7.10. Eligibility; Disqualification.
There shall at all times be a Trustee hereunder that is a corporation
organized and doing business under the laws of the United States of America or
of any state thereof that is authorized under such laws to exercise corporate
trustee power, that is subject to supervision or examination by federal or state
authorities and that has a combined capital and surplus of at least $75 million
as set forth in its most recent published annual report of condition.
This Indenture shall always have a Trustee who satisfies the requirements
of TIA (S) 310(a)(1), (2) and (5). The Trustee is subject to TIA (S) 310(b).
Section 7.11. Preferential Collection of Claims Against Company.
The Trustee is subject to TIA (S) 311(a), excluding any creditor
relationship listed in TIA (S) 311(b). A Trustee who has resigned or been
removed shall be subject to TIA (S) 311(a) to the extent indicated therein.
ARTICLE 8
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.01. Option to Effect Legal Defeasance or Covenant Defeasance.
The Company may, at the option of its Board of Directors evidenced by a
resolution set forth in an Officers' Certificate, at any time, elect to have
either Section 8.02 or 8.03 hereof be applied to all outstanding Notes upon
compliance with the conditions set forth below in this Article Eight.
Section 8.02. Legal Defeasance and Discharge.
Upon the Company's exercise under Section 8.01 hereof of the option
applicable to this Section 8.02, the Company shall, subject to the satisfaction
of the conditions set forth in Section 8.04 hereof, be deemed to have been
discharged from its obligations with respect to all outstanding Notes on the
date the conditions set forth below are satisfied (hereinafter, "Legal
Defeasance"). For this purpose, Legal Defeasance means that the Company shall
be deemed to have paid and discharged the entire Indebtedness represented by the
outstanding Notes, which shall thereafter be deemed to be "outstanding" only for
the purposes of Section 8.05 hereof and the other Sections of this Indenture
referred to in (1) and (2) below, and to have satisfied all its other
obligations under such Notes 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 provisions which shall survive
until otherwise terminated or discharged hereunder:
(1) the rights of Holders of outstanding Notes to receive solely from the
trust fund described in Section 8.04 hereof, and as more fully set forth in such
Section, payments in respect of the principal of, premium, if any, and interest
on such Notes when such payments are due;
57
(2) the Company's obligations with respect to such Notes under Article 2
and Section 4.02 hereof;
(3) the rights, powers, trusts, duties and immunities of the Trustee
hereunder and the Company's obligations in connection therewith; and
(4) this Article Eight.
Subject to compliance with this Article Eight, the Company may exercise
its option under this Section 8.02 notwithstanding the prior exercise of its
option under Section 8.03 hereof.
Section 8.03. Covenant Defeasance.
Upon the Company's exercise under Section 8.01 hereof of the option
applicable to this Section 8.03, the Company shall, subject to the satisfaction
of the conditions set forth in Section 8.04 hereof, be released from its
obligations under the covenants contained in Sections 4.07, 4.08, 4.09, 4.10,
4.11, 4.12, 4.13, 4.15, 4.16, 4.17 and 4.18 hereof and clause (4) of Section
5.01 hereof with respect to the outstanding Notes on and after the date the
conditions set forth in Section 8.04 are satisfied (hereinafter, "Covenant
Defeasance"), and the Notes 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 (it being
understood that such Notes shall not be deemed outstanding for accounting
purposes). For this purpose, Covenant Defeasance means that, with respect to
the outstanding Notes, the Company may omit to comply with and shall have no
liability in respect of any term, condition or limitation set forth in any such
covenant, whether directly or indirectly, by reason of any reference elsewhere
herein to any such covenant or by reason of any reference in any such covenant
to any other provision herein or in any other document and such omission to
comply shall not constitute a Default or an Event of Default under Section 6.01
hereof, but, except as specified above, the remainder of this Indenture and such
Notes shall be unaffected thereby. In addition, upon the Company's exercise
under Section 8.01 hereof of the option applicable to this Section 8.03 hereof,
subject to the satisfaction of the conditions set forth in Section 8.04 hereof,
Sections 6.01(3) through 6.01(6) hereof shall not constitute Events of Default.
Section 8.04. Conditions to Legal or Covenant Defeasance.
The following shall be the conditions to the application of either Section
8.02 or 8.03 hereof to the outstanding Notes:
In order to exercise either Legal Defeasance or Covenant Defeasance:
(1) the Company must irrevocably deposit with the Trustee, in trust, for
the benefit of the Holders, cash in United States dollars, non-callable
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, to pay the principal of, premium, if any, and interest on the
outstanding Notes on the stated date for payment thereof or on the applicable
redemption date, as the case may be;
(2) in the case of an election under Section 8.02 hereof, the Company
shall have delivered to the Trustee an Opinion of Counsel in the United States
reasonably acceptable to the Trustee confirming that:
58
(a) the Company has received from, or there has been published by, the
Internal Revenue Service a ruling; or
(b) since the date of this Indenture, there has been a change in the
applicable federal income tax law, in either case to the effect that, and
based thereon such Opinion of Counsel shall confirm that, the Holders of
the outstanding Notes will not recognize income, gain or loss for federal
income tax purposes as a result of such Legal Defeasance and will be
subject to federal income tax on the same amounts, in the same manner and
at the same times as would have been the case if such Legal Defeasance had
not occurred;
(3) in the case of an election under Section 8.03 hereof, the Company
shall have delivered to the Trustee an Opinion of Counsel in the United States
reasonably acceptable to the Trustee confirming that the Holders of the
outstanding Notes 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;
(4) no Default or Event of Default shall have occurred and be continuing
either:
(a) on the date of such deposit (other than a Default or Event of
Default resulting from the borrowing of funds to be applied to such
deposit); or
(b) insofar as Sections 6.01(7) or 6.01(8) hereof are concerned, at
any time in the period ending on the 91st day after the date of deposit;
(5) such Legal Defeasance or Covenant Defeasance shall not result in a
breach or violation of, or constitute a default under, any material agreement or
instrument (other than this Indenture) to which the Company or any of its
Restricted Subsidiaries is a party or by which the Company or any of its
Restricted Subsidiaries is bound;
(6) the Company shall have delivered to the Trustee an Opinion of Counsel
to the effect that on the 91st day following the deposit, the trust funds will
not be subject to the effect of any applicable bankruptcy, insolvency,
reorganization or similar laws affecting creditors' rights generally;
(7) the Company shall have delivered to the Trustee an Officers'
Certificate stating that the deposit was not made by the Company with the intent
of preferring the Holders over any other creditors of the Company or with the
intent of defeating, hindering, delaying or defrauding any other creditors of
the Company or others; and
(8) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for or relating to the Legal Defeasance or the Covenant
Defeasance have been complied with.
Section 8.05. Deposited Money and Government Securities to be Held in Trust;
Other Miscellaneous Provisions.
Subject to Section 8.06 hereof, all money and non-callable Government
Securities (including the proceeds thereof) deposited with the Trustee (or other
qualifying trustee, collectively for purposes of this Section 8.05, the
"Trustee") pursuant to Section 8.04 hereof in respect of the outstanding Notes
shall be held in trust and applied by the Trustee, in accordance with the
provisions of such Notes and this
59
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as Paying Agent) as the Trustee may determine, to
the Holders of such Notes 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.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the cash or non-callable Government
Securities deposited pursuant to Section 8.04 hereof or the principal and
interest received in respect thereof other than any such tax, fee or other
charge which by law is for the account of the Holders of the outstanding Notes.
Anything in this Article Eight to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon the request
of the Company any money or non-callable Government Securities held by it as
provided in Section 8.04 hereof which, in the opinion of a nationally recognized
firm of independent public accountants expressed in a written certification
thereof delivered to the Trustee (which may be the opinion delivered under
Section 8.04(a) hereof), are in excess of the amount thereof that would then be
required to be deposited to effect an equivalent Legal Defeasance or Covenant
Defeasance.
Section 8.06. Repayment to Company.
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 Note and remaining unclaimed for two years after such principal,
and premium, if any, or interest has become due and payable shall be paid to the
Company on its request or (if then held by the Company) shall be discharged from
such trust; and the Holder of such Note 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, and all liability of the Company as
trustee thereof, shall thereupon cease; provided, however, that the Trustee or
such Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, in the New York Times and The
Wall Street Journal (national edition), notice that such money remains unclaimed
and that, after a date specified therein, which shall not be less than 30 days
from the date of such notification or publication, any unclaimed balance of such
money then remaining will be repaid to the Company.
Section 8.07. Reinstatement.
If the Trustee or Paying Agent is unable to apply any United States
dollars or non-callable Government Securities in accordance with Section 8.02 or
8.03 hereof, 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 Notes
shall be revived and reinstated as though no deposit had occurred pursuant to
Section 8.02 or 8.03 hereof until such time as the Trustee or Paying Agent is
permitted to apply all such money in accordance with Section 8.02 or 8.03
hereof, as the case may be; provided, however, that, if the Company makes any
payment of principal of, premium, if any, or interest on any Note following the
reinstatement of its obligations, the Company shall be subrogated to the rights
of the Holders of such Notes to receive such payment from the money held by the
Trustee or Paying Agent.
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ARTICLE 9
AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.01. Without Consent of Holders of Notes.
Notwithstanding Section 9.02 of this Indenture, the Company and the
Trustee may amend or supplement this Indenture or the Notes without the consent
of any Holder of Notes:
(1) to cure any ambiguity, defect or inconsistency;
(2) to provide for uncertificated Notes in addition to or in place of
certificated Notes;
(3) to provide for the assumption of the Company's obligations to the
Holders of the Notes by a successor to the Company pursuant to Article 5 hereof;
(4) to make any change that would provide any additional rights or
benefits to the Holders of the Notes or that does not adversely affect the legal
rights hereunder of any Holder of Notes; or
(5) to comply with requirements of the SEC in order to effect or maintain
the qualification of this Indenture under the TIA.
Upon the request of the Company accompanied by a resolution of its Board
of Directors authorizing the execution of any such amended or supplemental
Indenture, and upon receipt by the Trustee of the documents described in Section
7.02 hereof, the Trustee shall join with the Company in the execution of any
amended or supplemental Indenture authorized or permitted by the terms of this
Indenture and to make any further appropriate agreements and stipulations that
may be therein contained, but the Trustee shall not be obligated to enter into
such amended or supplemental Indenture that affects its own rights, duties or
immunities under this Indenture or otherwise.
Section 9.02. With Consent of Holders of Notes.
Except as provided below in this Section 9.02, the Company and the Trustee
may amend or supplement this Indenture (including Section 3.09, 4.10 and 4.15
hereof) and the Notes with the consent of the Holders of at least a majority in
principal amount at maturity of the Notes then outstanding, voting as a single
class, (including, without limitation, consents obtained in connection with a
tender offer or exchange offer for, or purchase of, the Notes), and, subject to
Sections 6.04 and 6.07 hereof, any existing Default or Event of Default (other
than a Default or Event of Default in the payment of the principal of, premium,
if any, or interest on the Notes, except a payment default resulting from an
acceleration that has been rescinded) or compliance with any provision of this
Indenture or the Notes may be waived with the consent of the Holders of a
majority in principal amount at maturity of the then outstanding Notes, voting
as a single class, (including consents obtained in connection with a tender
offer or exchange offer for, or purchase of, the Notes). Section 2.08 hereof
shall determine which Notes are considered to be "outstanding" for purposes of
this Section 9.02.
Upon the request of the Company accompanied by a resolution of its Board
of Directors authorizing the execution of any such amended or supplemental
Indenture, and upon the filing with the Trustee of evidence satisfactory to the
Trustee of the consent of the Holders of Notes as aforesaid, and upon receipt by
the Trustee of the documents described in Section 7.02 hereof, the Trustee shall
join with the Company in the execution of such amended or supplemental Indenture
unless such amended or supplemental Indenture directly affects the Trustee's own
rights, duties or immunities under this
61
Indenture or otherwise, in which case the Trustee may in its discretion, but
shall not be obligated to, enter into such amended or supplemental Indenture.
It shall not be necessary for the consent of the Holders of Notes under
this Section 9.02 to approve the particular form of any proposed amendment or
waiver, but it shall be sufficient if such consent approves the substance
thereof.
After an amendment, supplement or waiver under this Section becomes
effective, the Company shall mail to the Holders of Notes affected thereby a
notice briefly describing the amendment, supplement or waiver. Any failure of
the Company to mail such notice, or any defect therein, shall not, however, in
any way impair or affect the validity of any such amended or supplemental
Indenture or waiver. Subject to Sections 6.04 and 6.07 hereof, the Holders of a
majority in aggregate principal amount at maturity of the Notes then
outstanding, voting as a single class, may waive compliance in a particular
instance by the Company with any provision of this Indenture or the Notes.
However, without the consent of each Holder affected, an amendment or waiver
under this Section 9.02 may not (with respect to any Notes held by a non-
consenting Holder):
(1) reduce the principal amount at maturity of Notes whose Holders must
consent to an amendment, supplement or waiver;
(2) reduce the principal of or change the fixed maturity of any Note or
alter or waive any of the provisions with respect to the redemption of the
Notes, except as provided above with respect to Sections 3.09, 4.10 and 4.15
hereof;
(3) reduce the rate of or change the time for payment of interest,
including default interest, on any Note;
(4) waive a Default or Event of Default in the payment of principal of or
premium, if any, or interest on the Notes (except a rescission of acceleration
of the Notes by the Holders of at least a majority in aggregate principal amount
at maturity of the then outstanding Notes and a waiver of the payment default
that resulted from such acceleration);
(5) make any Note payable in money other than that stated in the Notes;
(6) make any change in the provisions of this Indenture relating to
waivers of past Defaults or the rights of Holders of Notes to receive payments
of principal of, or premium, if any, or interest on the Notes;
(7) waive a redemption payment (but not any payment pursuant to Sections
3.09, 4.10 or 4.15 hereof) with respect to any Note;
(8) except as provided under Article Eight hereof or in accordance with
the terms of any Note Guarantee, release any Guarantor from any of its
obligations under its Note Guarantee or make any change in a Note Guarantee that
would adversely affect the Holders of the Notes; or
(9) make any change in Section 6.04 or 6.07 hereof or in the foregoing
amendment and waiver provisions.
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Section 9.03. Compliance with Trust Indenture Act.
Every amendment or supplement to this Indenture or the Notes shall be set
forth in a amended or supplemental Indenture that complies with the TIA as then
in effect.
Section 9.04. Revocation and Effect of Consents.
Until an amendment, supplement or waiver becomes effective, a consent to
it by a Holder of a Note is a continuing consent by the Holder of a Note and
every subsequent Holder of a Note or portion of a Note that evidences the same
debt as the consenting Holder's Note, even if notation of the consent is not
made on any Note. However, any such Holder of a Note or subsequent Holder of a
Note may revoke the consent as to its Note if the Trustee receives written
notice of revocation before the date the waiver, supplement or amendment becomes
effective. An amendment, supplement or waiver becomes effective in accordance
with its terms and thereafter binds every Holder.
Section 9.05. Notation on or Exchange of Notes.
The Trustee may place an appropriate notation about an amendment,
supplement or waiver on any Note thereafter authenticated. The Company in
exchange for all Notes may issue and the Trustee shall, upon receipt of an
Authentication Order, authenticate new Notes that reflect the amendment,
supplement or waiver.
Failure to make the appropriate notation or issue a new Note shall not
affect the validity and effect of such amendment, supplement or waiver.
Section 9.06. Trustee to Sign Amendments, etc.
The Trustee shall sign any amended or supplemental Indenture authorized
pursuant to this Article Nine if the amendment or supplement does not adversely
affect the rights, duties, liabilities or immunities of the Trustee. The
Company may not sign an amendment or supplemental Indenture until the Board of
Directors approves it. In executing any amended or supplemental indenture, the
Trustee shall be entitled to receive and (subject to Section 7.01 hereof) shall
be fully protected in relying upon, in addition to the documents required by
Section 11.04 hereof, an Officer's Certificate and an Opinion of Counsel stating
that the execution of such amended or supplemental indenture is authorized or
permitted by this Indenture.
ARTICLE 10
NOTE GUARANTEES
Section 10.01. Guarantee.
The provisions of this Article 10 shall apply only to those Subsidiaries
of the Company, if any, that execute one or more supplemental indentures to this
Indenture in the form of Exhibit C to this Indenture in compliance with the
requirements of Section 4.18 of this Indenture.
Subject to this Article 10, each of the Guarantors hereby, jointly and
severally, unconditionally guarantees to each Holder of a Note authenticated and
delivered by the Trustee and to the Trustee and its successors and assigns,
irrespective of the validity and enforceability of this Indenture, the Notes or
the obligations of the Company hereunder or thereunder, that: (a) the principal
of and interest on the Notes
63
will be promptly paid in full when due, whether at maturity, by acceleration,
redemption or otherwise, and interest on the overdue principal of and interest
on the Notes, if any, if lawful, and all other obligations of the Company to the
Holders or the Trustee hereunder or thereunder will be promptly paid in full or
performed, all in accordance with the terms hereof and thereof; and (b) in case
of any extension of time of payment or renewal of any Notes or any of such other
obligations, that same will be promptly paid in full when due or performed in
accordance with the terms of the extension or renewal, whether at stated
maturity, by acceleration or otherwise. Failing payment when due of any amount
so guaranteed or any performance so guaranteed for whatever reason, the
Guarantors shall be jointly and severally obligated to pay the same immediately.
Each Guarantor agrees that this is a guarantee of payment and not a guarantee of
collection.
The Guarantors hereby agree that their obligations hereunder shall be
unconditional, irrespective of the validity, regularity or enforceability of the
Notes or this Indenture, the absence of any action to enforce the same, any
waiver or consent by any Holder of the Notes with respect to any provisions
hereof or thereof, the recovery of any judgment against the Company, any action
to enforce the same or any other circumstance which might otherwise constitute a
legal or equitable discharge or defense of a guarantor. Each Guarantor hereby
waives diligence, presentment, demand of payment, filing of claims with a court
in the event of insolvency or bankruptcy of the Company, any right to require a
proceeding first against the Company, protest, notice and all demands whatsoever
and covenant that this Note Guarantee shall not be discharged except by complete
performance of the obligations contained in the Notes and this Indenture.
If any Holder or the Trustee is required by any court or otherwise to
return to the Company, the Guarantors or any Custodian, trustee, liquidator or
other similar official acting in relation to either the Company or the
Guarantors, any amount paid by either to the Trustee or such Holder, this Note
Guarantee, to the extent theretofore discharged, shall be reinstated in full
force and effect.
Each Guarantor agrees that it shall not be entitled to any right of
subrogation in relation to the Holders in respect of any obligations guaranteed
hereby until payment in full of all obligations guaranteed hereby. Each
Guarantor further agrees that, as between the Guarantors, on the one hand, and
the Holders and the Trustee, on the other hand, (x) the maturity of the
obligations guaranteed hereby may be accelerated as provided in Article 6 hereof
for the purposes of this Note Guarantee, notwithstanding any stay, injunction or
other prohibition preventing such acceleration in respect of the obligations
guaranteed hereby, and (y) in the event of any declaration of acceleration of
such obligations as provided in Article 6 hereof, such obligations (whether or
not due and payable) shall forthwith become due and payable by the Guarantors
for the purpose of this Note Guarantee. The Guarantors shall have the right to
seek contribution from any non-paying Guarantor so long as the exercise of such
right does not impair the rights of the Holders under the Guarantee.
Section 10.02. Limitation on Guarantor Liability.
Each Guarantor, and by its acceptance of Notes, each Holder, hereby
confirms that it is the intention of all such parties that the Note Guarantee of
such Guarantor not constitute a fraudulent transfer or conveyance for purposes
of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent
Transfer Act or any similar federal or state law to the extent applicable to any
Note Guarantee. To effectuate the foregoing intention, the Trustee, the Holders
and the Guarantors hereby irrevocably agree that the obligations of such
Guarantor will, after giving effect to such maximum amount and all other
contingent and fixed liabilities of such Guarantor that are relevant under such
laws, and after giving effect to any collections from, rights to receive
contribution from or payments made by
64
or on behalf of any other Guarantor in respect of the obligations of such other
Guarantor under this Article 10, result in the obligations of such Guarantor
under its Note Guarantee not constituting a fraudulent transfer or conveyance.
Section 10.03. Execution and Delivery of Note Guarantee.
To evidence its Note Guarantee set forth in Section 10.01, each Guarantor
hereby agrees that a notation of such Note Guarantee substantially in the form
included in Exhibit E shall be endorsed by an Officer of such Guarantor on each
Note authenticated and delivered by the Trustee and that this Indenture shall be
executed on behalf of such Guarantor by its President or one of its Vice
Presidents.
Each Guarantor hereby agrees that its Note Guarantee set forth in Section
10.01 shall remain in full force and effect notwithstanding any failure to
endorse on each Note a notation of such Note Guarantee.
If an Officer whose signature is on this Indenture or on the Note
Guarantee no longer holds that office at the time the Trustee authenticates the
Note on which a Note Guarantee is endorsed, the Note Guarantee shall be valid
nevertheless.
The delivery of any Note by the Trustee, after the authentication thereof
hereunder, shall constitute due delivery of the Note Guarantee set forth in this
Indenture on behalf of the Guarantors.
In the event that the Company creates or acquires any new Subsidiaries
subsequent to the date of this Indenture, if required by Section 4.18 hereof,
the Company shall cause such Subsidiaries to execute supplemental indentures to
this Indenture and Note Guarantees in accordance with Section 4.18 hereof and
this Article 10, to the extent applicable.
Section 10.04. Guarantors May Consolidate, etc., on Certain Terms.
Except as otherwise provided in Section 10.05, no Guarantor may
consolidate with or merge with or into (whether or not such Guarantor is the
surviving Person) another Person whether or not affiliated with such Guarantor
unless:
(a) subject to Section 10.05 hereof, the Person formed by or surviving any
such consolidation or merger (if other than a Guarantor or the Company)
unconditionally assumes all the obligations of such Guarantor, pursuant to a
supplemental indenture in form and substance reasonably satisfactory to the
Trustee, under the Notes, the Indenture and the Note Guarantee on the terms set
forth herein or therein; and
(b) immediately after giving effect to such transaction, no Default or
Event of Default exists.
In case of any such consolidation, merger, sale or conveyance and upon the
assumption by the successor Person, by supplemental indenture, executed and
delivered to the Trustee and satisfactory in form to the Trustee, of the Note
Guarantee endorsed upon the Notes and the due and punctual performance of all of
the covenants and conditions of this Indenture to be performed by the Guarantor,
such successor Person shall succeed to and be substituted for the Guarantor with
the same effect as if it had been named herein as a Guarantor. Such successor
Person thereupon may cause to be signed any or all of the Note Guarantees to be
endorsed upon all of the Notes issuable hereunder which theretofore shall not
have been signed by the Company and delivered to the Trustee. All the Note
Guarantees so issued shall in all respects have the same legal rank and benefit
under this Indenture as the Note
65
Guarantees theretofore and thereafter issued in accordance with the terms of
this Indenture as though all of such Note Guarantees had been issued at the date
of the execution hereof.
Except as set forth in Articles 4 and 5 hereof, and notwithstanding
clauses (a) and (b) above, nothing contained in this Indenture or in any of the
Notes shall prevent any consolidation or merger of a Guarantor with or into the
Company or another Guarantor, or shall prevent any sale or conveyance of the
property of a Guarantor as an entirety or substantially as an entirety to the
Company or another Guarantor.
Section 10.05. Releases Following Sale of Assets.
In the event of a sale or other disposition of all of the assets of any
Guarantor, by way of merger, consolidation or otherwise, or a sale or other
disposition of all to the capital stock of any Guarantor, in each case to a
Person that is not (either before or after giving effect to such transactions) a
Subsidiary of the Company, then such Guarantor (in the event of a sale or other
disposition, by way of merger, consolidation or otherwise, of all of the capital
stock of such Guarantor) or the corporation acquiring the property (in the event
of a sale or other disposition of all or substantially all of the assets of such
Guarantor) will be released and relieved of any obligations under its Note
Guarantee; provided that the Net Proceeds of such sale or other disposition are
applied in accordance with the applicable provisions of this Indenture,
including without limitation Section 4.10 hereof. Upon delivery by the Company
to the Trustee of an Officers' Certificate and an Opinion of Counsel to the
effect that such sale or other disposition was made by the Company in accordance
with the provisions of this Indenture, including without limitation Section 4.10
hereof, the Trustee shall execute any documents reasonably required in order to
evidence the release of any Guarantor from its obligations under its Note
Guarantee.
Any Guarantor not released from its obligations under its Note Guarantee
shall remain liable for the full amount of principal of and interest on the
Notes and for the other obligations of any Guarantor under this Indenture as
provided in this Article 10.
ARTICLE 11
MISCELLANEOUS
Section 11.01. Trust Indenture Act Controls.
If any provision of this Indenture limits, qualifies or conflicts with the
duties imposed by TIA (S)318(c), the imposed duties shall control.
Section 11.02. Notices.
Any notice or communication by the Company or the Trustee to the others is
duly given if in writing and delivered in Person or mailed by first class mail
(registered or certified, return receipt requested), telex, telecopier or
overnight air courier guaranteeing next day delivery, to the others' address:
66
If to the Company:
Crown Castle International Corp.
510 Bering Drive, Suite 500
Houston, Texas 77057
Telecopier No.: (713) 570-3150
Attention: Chief Financial Officer
With a copy to:
Cravath, Swaine & Moore
825 Eighth Avenue
New York, New York 10019
Telecopier No.: (212) 474-3700
Attention: Stephen L. Burns, Esq.
If to the Trustee:
Unites States Trust Company of New York
114 West 47th Street, 25th Floor
New York, New York 10036
Telecopier No.: (212) 852-1626
Attention: Gerard F. Ganey
Corporate Trust Division
The Company or the Trustee, by notice to the others, may designate
additional or different addresses for subsequent notices or communications.
All notices and communications (other than those sent to Holders) shall be
deemed to have been duly given: at the time delivered by hand, if personally
delivered; five Business Days after being deposited in the mail, postage
prepaid, if mailed; when answered back, if telexed; when receipt acknowledged,
if telecopied; and the next Business Day after timely delivery to the courier,
if sent by overnight air courier guaranteeing next day delivery.
Any notice or communication to a Holder shall be mailed by first class
mail, certified or registered, return receipt requested, or by overnight air
courier guaranteeing next day delivery to its address shown on the register kept
by the Registrar. Any notice or communication shall also be so mailed to any
Person described in TIA (S) 313(c), to the extent required by the TIA. Failure
to mail a notice or communication to a Holder or any defect in it shall not
affect its sufficiency with respect to other Holders.
If a notice or communication is mailed in the manner provided above within
the time prescribed, it is duly given, whether or not the addressee receives it.
If the Company mails a notice or communication to Holders, it shall mail a
copy to the Trustee and each Agent at the same time.
67
Section 11.03. Communication by Holders of Notes with Other Holders of Notes.
Holders may communicate pursuant to TIA (S) 312(b) with other Holders with
respect to their rights under this Indenture or the Notes. The Company, the
Trustee, the Registrar and anyone else shall have the protection of TIA (S)
312(c).
Section 11.04. Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company to the Trustee to take any
action under this Indenture, the Company shall furnish to the Trustee:
(a) an Officers' Certificate in form and substance reasonably satisfactory
to the Trustee (which shall include the statements set forth in Section 11.05
hereof) stating that, in the opinion of the signers, all conditions precedent
and covenants, if any, provided for in this Indenture relating to the proposed
action have been satisfied; and
(b) an Opinion of Counsel in form and substance reasonably satisfactory to
the Trustee (which shall include the statements set forth in Section 11.05
hereof) stating that, in the opinion of such counsel, all such conditions
precedent and covenants have been satisfied.
Section 11.05. Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture (other than a certificate provided
pursuant to TIA (S) 314(a)(4)) shall comply with the provisions of TIA (S)
314(e) and shall include:
(a) a statement that the Person making such certificate or opinion has
read such covenant or condition;
(b) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(c) a statement that, in the opinion of such Person, he or she 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
satisfied; and
(d) a statement as to whether or not, in the opinion of such Person, such
condition or covenant has been satisfied.
Section 11.06. Rules by Trustee and Agents.
The Trustee may make reasonable rules for action by or at a meeting of
Holders. The Registrar or Paying Agent may make reasonable rules and set
reasonable requirements for its functions; provided that no such rule shall
conflict with the terms of this Indenture or the TIA.
Section 11.07. No Personal Liability of Directors, Officers, Employees and
Stockholders.
No past, present or future director, officer, employee, incorporator or
stockholder of the Company, as such, shall have any liability for any
obligations of the Company under the Notes, this Indenture or for any claim
based on, in respect of, or by reason of, such obligations or their creation.
68
Each Holder by accepting a Note waives and releases all such liability. The
waiver and release are part of the consideration for issuance of the Notes.
Section 11.08. Governing Law.
THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO
CONSTRUE THIS INDENTURE, THE NOTES WITHOUT GIVING EFFECT TO APPLICABLE
PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF
ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
Section 11.09. No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret any other indenture, loan or
debt agreement of the Company or its Subsidiaries or of any other Person. Any
such indenture, loan or debt agreement may not be used to interpret this
Indenture.
Section 11.10. Successors.
All agreements of the Company in this Indenture and the Notes shall bind
its successors. All agreements of the Trustee in this Indenture shall bind its
successors.
Section 11.11. Severability.
In case any provision in this Indenture or in the Notes shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
Section 11.12. Counterpart Originals.
The parties may sign any number of copies of this Indenture. Each signed
copy shall be an original, but all of them together represent the same
agreement.
Section 11.13. Table of Contents, Headings, etc.
The Table of Contents, Cross-Reference Table and Headings of the Articles
and Sections of this Indenture have been inserted for convenience of reference
only, are not to be considered a part of this Indenture and shall in no way
modify or restrict any of the terms or provisions hereof.
[Signatures on following page]
69
SIGNATURES
Dated as of May 17, 1999
Crown Castle International Corp.
By: /s/ Blake Hawk
---------------------------------
Name: E. Blake Hawk
Title: Executive Vice President
Attest:
/s/ Kathy Broussard
- ---------------------------------
Name: Kathy Broussard
Title: Vice President/Secretary
United States Trust Company of New York
By: /s/ M Ciesmelewski
---------------------------------
Name: Margaret Ciesmelewski
Title: Assistant Vice President
Attest:
/s/ Jason Gregory
- ---------------------------------
Authorized Signatory
Date:
[Face of Note]
- --------------------------------------------------------------------------------
THE FOLLOWING INFORMATION IS PROVIDED SOLELY FOR PURPOSES OF APPLYING THE UNITED
STATES FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT RULES TO THIS NOTE. THE ISSUE
DATE OF THIS NOTE IS MAY 17, 1999. THE ISSUE PRICE OF THIS NOTE IS $603.39 PER
$1000.00 OF INITIAL PRINCIPAL AMOUNT AT MATURITY. THIS NOTE IS ISSUED WITH
$396.61 OF ORIGINAL ISSUE DISCOUNT PER $1000.00 OF INITIAL PRINCIPAL AMOUNT AT
MATURITY. THE YIELD TO MATURITY OF THIS NOTE IS 10-3/8%.
CUSIP/CINS ____________
10-3/8% Senior Discount Notes due 2011
No. ___ $____________
CROWN CASTLE INTERNATIONAL CORP.
promises to pay to CEDE & CO. or registered assigns,
the principal sum of DOLLARS
--------------------------------------
on May 15, 2011.
Interest Payment Dates: May 15 and November 15
Record Dates: May 1 and November 1
Dated: May 17, 1999
CROWN CASTLE INTERNATIONAL CORP.
By:
---------------------------------
Name:
Title:
By:
---------------------------------
Name:
Title:
(SEAL)
This is one of the Notes referred to
in the within-mentioned Indenture:
United States Trust Company of New York,
as Trustee
By: __________________________________
Authorized Signatory
________________________________________________________________________________
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[Back of Note]
10-3/8% Senior Discount Notes due 2011
[Insert the Global Note Legend, if applicable pursuant to the provisions of the
Indenture]
Capitalized terms used herein shall have the meanings assigned to them in
the Indenture referred to below unless otherwise indicated.
1. Interest. No cash interest will accrue on the Notes before May 15,
2004. The Accreted Value of the Notes will accrete between May 17, 1999 and May
15, 2004, on a semiannual bond equivalent basis using a 360-day year comprised
of twelve 30-day months such that the Accreted Value shall be equal to the
principal amount of the Notes on November 15, 2004. The initial Accreted Value
of the Notes will be $301,695,000. Crown Castle International Corp., a Delaware
corporation (the "Company"), promises to pay interest on the principal amount of
this Note at 10-3/8% per annum from November 15, 2004 until maturity. The
Company will pay interest semi-annually in arrears on May 15 and November 15 of
each year, or if any such day is not a Business Day, on the next succeeding
Business Day (each an "Interest Payment Date"). Interest on the Notes will
accrue from the most recent date to which interest has been paid or, if no
interest has been paid, from the date of issuance; provided that if there is no
existing Default in the payment of interest, and if this Note is authenticated
between a record date referred to on the face hereof and the next succeeding
Interest Payment Date, interest shall accrue from such next succeeding Interest
Payment Date; provided, further, that the first Interest Payment Date shall be
November 15, 2004. The Company shall pay interest (including post-petition
interest in any proceeding under any Bankruptcy Law) on overdue principal and
premium, if any, from time to time on demand at a rate that is 1% per annum in
excess of the rate then in effect; it shall pay interest (including post-
petition interest in any proceeding under any Bankruptcy Law) on overdue
installments of interest (without regard to any applicable grace periods) from
time to time on demand at the same rate to the extent lawful. Interest will be
computed on the basis of a 360-day year of twelve 30-day months.
2. Method of Payment. The Company will pay interest on the Notes (except
defaulted interest) to the Persons who are registered Holders of Notes at the
close of business on the May 1 or November 1 next preceding the Interest Payment
Date, even if such Notes are canceled after such record date and on or before
such Interest Payment Date, except as provided in Section 2.12 of the Indenture
with respect to defaulted interest. The Notes will be payable as to principal,
premium, if any, and interest at the office or agency of the Company maintained
for such purpose within or without the City and State of New York, or, at the
option of the Company, payment of interest may be made by check mailed to the
Holders at their addresses set forth in the register of Holders, and provided
that payment by wire transfer of immediately available funds will be required
with respect to principal of and interest, premium on, all Global Notes and all
other Notes the Holders of which shall have provided wire transfer instructions
to the Company or the Paying Agent. Such payment shall be in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts.
3. Paying Agent and Registrar. Initially, United States Trust Company of
New York, the Trustee under the Indenture, will act as Paying Agent and
Registrar. The Company may change any Paying Agent or Registrar without notice
to any Holder. The Company or any of its Subsidiaries may act in any such
capacity.
4. Indenture. The Company issued the Notes under an Indenture dated as
of May 17, 1999 ("Indenture") between the Company and the Trustee. The terms of
the Notes include those stated in the Indenture and those made part of the
Indenture by reference to the Trust Indenture Act of 1939, as
A-2
amended (15 U.S. Code (S)(S) 77aaa-77bbbb) (the "Trust Indenture Act"). The
Notes are subject to all such terms, and Holders are referred to the Indenture
and such Act for a statement of such terms. To the extent any provision of this
Note conflicts with the express provisions of the Indenture, the provisions of
the Indenture shall govern and be controlling. The Notes are obligations of the
Company limited to $666.0 million in aggregate principal amount at maturity.
5. Optional Redemption.
(a) Except as provided in clause (b) of this Paragraph 5, the Notes will
not be redeemable at the Company's option prior to May 15, 2004. On or after
May 15, 2004, the Company may redeem all or a part of the Notes upon not less
than 30 nor more than 60 days' notice, at the redemption prices (expressed as
percentages of principal amount at maturity) set forth below plus accrued and
unpaid interest if any, on the Notes redeemed to the applicable redemption date
(subject to the right of Holders of record on the relevant record date to
receive interest due on the relevant interest payment date), if redeemed during
the twelve-month period beginning on May 15 of the years indicated below:
Year Percentage
- ---- ----------------
2004........................................................................... 105.187%
2005........................................................................... 103.458%
2006........................................................................... 101.729%
2007 and thereafter............................................................ 100.000%
(b) Notwithstanding the provisions of clause (a) of this Paragraph 5, at
any time during the first 36 months after the date of the original issuance of
the Notes, the Company may on any one or more occasions redeem up to 35% of the
aggregate principal amount at maturity of the Notes originally issued at a
redemption price equal to 110.375% of Accreted Value of the Notes to be redeemed
on the redemption date with the net cash proceeds of one or more Public Equity
Offerings and/or Strategic Equity Investments provided that:
(1) at least 65% of the aggregate principal amount at maturity of the
Notes originally issued remains outstanding immediately after the occurrence of
such redemption (excluding Notes held by the Company or any of its
Subsidiaries); and
(2) the redemption occurs within 60 days of the date of the closing of
such Public Equity Offering or Strategic Equity Investment.
6. Mandatory Redemption.
Except as set forth in paragraph 7 below, the Company shall not be
required to make mandatory redemption payments with respect to the Notes.
7. Repurchase at Option of Holder.
(a) If there is a Change of Control, the Company shall be required to make
an offer (a "Change of Control Offer") to repurchase all or any part (equal to
$1,000 or an integral multiple thereof) of each Holder's Notes at a purchase
price equal to 101% of the Accreted Value of the Notes repurchased prior to the
Full Accretion Date and 101% of the aggregate principal amount of the Notes
repurchased on or after the Full Accretion Date plus accrued and unpaid interest
thereon, if any, to the date of purchase (the "Change of Control Payment").
Within 30 days following any Change of Control, the Company
A-3
shall mail a notice to each Holder setting forth the procedures governing the
Change of Control Offer as required by the Indenture.
(b) If the Company or a Restricted Subsidiary consummates any Asset Sales
when the aggregate amount of Excess Proceeds exceeds $10 million, the Company
shall commence an offer to all Holders of Notes (as "Asset Sale Offer") pursuant
to Section 3.09 of the Indenture to purchase the maximum principal amount of
Notes that may be purchased out of the Excess Proceeds at an offer price in cash
in an amount equal to 100% of the Accreted Value of the Notes purchased before
the Full Accretion Date and 100% of the principal amount of the Notes
repurchased on or after the Full Accretion Date, plus accrued and unpaid
interest thereon, if any, to the date fixed for the closing of such offer, in
accordance with the procedures set forth in the Indenture. To the extent that
the aggregate amount of Notes tendered pursuant to an Asset Sale Offer is less
than the Excess Proceeds, the Company (or such Restricted Subsidiary) may use
such deficiency for any purpose not otherwise prohibited by the Indenture. If
the Accreted Value or aggregate principal amount, as the case may be, of Notes
surrendered by Holders thereof exceeds the amount of Excess Proceeds, the
Trustee shall select the Notes to be purchased on a pro rata basis. Holders of
Notes that are the subject of an offer to purchase will receive an Asset Sale
Offer from the Company prior to any related purchase date and may elect to have
such Notes purchased by completing the form entitled "Option of Holder to Elect
Purchase" on the reverse of the Notes.
8. Notice of Redemption. Notice of redemption will be mailed at least 30
days but not more than 60 days before the redemption date to each Holder whose
Notes are to be redeemed at its registered address. Notes in denominations
larger than $1,000 may be redeemed in part but only in whole multiples of
$1,000, unless all of the Notes held by a Holder are to be redeemed. On and
after the redemption date interest ceases to accrue on Notes or portions thereof
called for redemption.
9. Denominations, Transfer, Exchange. The Notes are in registered form
without coupons in denominations of $1,000 and integral multiples of $1,000.
The transfer of Notes may be registered and Notes may be exchanged as provided
in the Indenture. The Registrar and the Trustee may require a Holder, among
other things, to furnish appropriate endorsements and transfer documents and the
Company may require a Holder to pay any taxes and fees required by law or
permitted by the Indenture. The Company need not exchange or register the
transfer of any Note or portion of a Note selected for redemption, except for
the unredeemed portion of any Note being redeemed in part. Also, the Company
need not exchange or register the transfer of any Notes for a period of 15 days
before a selection of Notes to be redeemed or during the period between a record
date and the corresponding Interest Payment Date.
10. Persons Deemed Owners. The registered Holder of a Note may be
treated as its owner for all purposes.
11. Amendment, Supplement and Waiver. Subject to certain exceptions, the
Indenture or the Notes may be amended or supplemented with the consent of the
Holders of at least a majority in principal amount at maturity of the then
outstanding Notes, and any existing default or compliance with any provision of
the Indenture or the Notes may be waived with the consent of the Holders of a
majority in principal amount at maturity of the then outstanding Notes. Without
the consent of any Holder of Notes, the Indenture or the Notes may be amended or
supplemented to cure any ambiguity, defect or inconsistency, to provide for
uncertificated Notes in addition to or in place of certificated Notes, to
provide for the assumption of the Company's obligations to Holders of the Notes
in case of a merger or consolidation, to make any change that would provide any
additional rights or benefits to the Holders of
A-4
the Notes or that does not adversely affect the legal rights under the Indenture
of any such Holder, or to comply with the requirements of the Securities and
Exchange Commission in order to effect or maintain the qualification of the
Indenture under the Trust Indenture Act.
12. Defaults and Remedies. Events of Default include: (i) default for 30
days in the payment when due of interest on the Notes; (ii) default in payment
when due of principal of or premium, if any, on the Notes, (iii) failure by the
Company or any of its Subsidiaries to comply with Section 3.09, 4.10, 4.15 or
5.01 of the Indenture; (iv) failure by the Company or any of its Subsidiaries
for 30 days after notice to the Company by the Trustee or the Holders of at
least 25% in principal amount at maturity of the Notes then outstanding to
comply with certain other agreements in the Indenture or the Notes; (v) default
under certain other agreements relating to Indebtedness of the Company which
default results in the acceleration of such Indebtedness prior to its express
maturity; (vi) certain final judgments for the payment of money that remain
undischarged for a period of 60 days; and (vii) certain events of bankruptcy or
insolvency with respect to the Company or any of its Restricted Subsidiaries.
If any Event of Default occurs and is continuing, the Trustee or the Holders of
at least 25% in principal amount at maturity of the then outstanding Notes may
declare all the Notes to be due and payable. Notwithstanding the foregoing, in
the case of an Event of Default arising from certain events of bankruptcy or
insolvency, all outstanding Notes will become due and payable without further
action or notice. Holders may not enforce the Indenture or the Notes except as
provided in the Indenture. Subject to certain limitations, Holders of a
majority in principal amount at maturity of the then outstanding Notes may
direct the Trustee in its exercise of any trust or power. The Trustee may
withhold from Holders of the Notes notice of any continuing Default or Event of
Default (except a Default or Event of Default relating to the payment of
principal or interest) if it determines that withholding notice is in their
interest. The Holders of a majority in aggregate principal amount at maturity
of the Notes then outstanding by notice to the Trustee may on behalf of the
Holders of all of the Notes waive any existing Default or Event of Default and
its consequences under the Indenture except a continuing Default or Event of
Default in the payment of interest on, or the principal of, the Notes. The
Company is required to deliver to the Trustee annually a statement regarding
compliance with the Indenture, and the Company is required upon becoming aware
of any Default or Event of Default, to deliver to the Trustee a statement
specifying such Default or Event of Default.
13. Trustee Dealings with Company. The Trustee, in its individual or any
other capacity, may make loans to, accept deposits from, 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.
14. No Recourse Against Others. A director, officer, employee,
incorporator or stockholder, of the Company, as such, shall not have any
liability for any obligations of the Company under the Notes or the Indenture or
for any claim based on, in respect of, or by reason of, such obligations or
their creation. Each Holder by accepting a Note waives and releases all such
liability. The waiver and release are part of the consideration for the
issuance of the Notes.
15. Authentication. This Note shall not be valid until authenticated by
the manual signature of the Trustee or an authenticating agent.
16. Abbreviations. Customary abbreviations may be used in the name of a
Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (=
tenants by the entireties), JT TEN (= joint tenants with right of survivorship
and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts
to Minors Act).
A-5
17. CUSIP Numbers. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Company has caused
CUSIP numbers to be printed on the Notes and the Trustee may use CUSIP numbers
in notices of redemption as a convenience to Holders. No representation is made
as to the accuracy of such numbers either as printed on the Notes or as
contained in any notice of redemption and reliance may be placed only on the
other identification numbers placed thereon.
The Company will furnish to any Holder upon written request and without charge a
copy of the Indenture. Requests may be made to: Crown Castle International
Corp., 510 Bering Drive, Suite 500, Houston, Texas 77057, Attention: Chief
Financial Officer.
A-6
Assignment Form
To assign this Note, fill in the form below:
(I) or (we) assign and transfer this Note to:
--------------------------------
(Insert assignee's legal name)
- --------------------------------------------------------------------------------
(Insert assignee's soc. sec. or tax I.D. no.)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
and irrevocably appoint
--------------------------------------------------------
to transfer this Note on the books of the Company. The agent may substitute
another to act for him.
Date:
------------
Your Signature:
-----------------------------------------
(Sign exactly as your name appears on the face of this Note)
Signature Guarantee*:
-------------------------
* Participant in a recognized Signature Guarantee Medallion Program (or other
signature guarantor acceptable to the Trustee).
A-7
Option of Holder to Elect Purchase
If you want to elect to have this Note purchased by the Company pursuant
to Section 4.10 or 4.15 of the Indenture, check the appropriate box below:
[ ] Section 4.10 [ ] Section 4.15
If you want to elect to have only part of the Note purchased by the
Company pursuant to Section 4.10 or Section 4.15 of the Indenture, state the
amount you elect to have purchased:
$
---------------
Date:
---------------
Your Signature:
-----------------------------------------
(Sign exactly as your name appears on the face of this Note)
Tax Identification No.:
---------------------------
Signature Guarantee*:
---------------------------
* Participant in a recognized Signature Guarantee Medallion Program (or other
signature guarantor acceptable to the Trustee).
A-8
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE*
The following exchanges of a part of this Global Note for an interest in
another Global Note or for a Definitive Note, or exchanges of a part of another
Global Note or Definitive Note for an interest in this Global Note, have been
made:
Principal amount at Signature of
Amount of decrease Amount of increase maturity of authorized officer
in in this Global Note of
Principal amount at Principal amount at following such Trustee or Note
Date of Exchange maturity of maturity of decrease Custodian
- ------------------- this Global Note this Global Note (or increase) -------------------
-------------------- -------------------- ---------------------
* This schedule should be included only if the Note is issued in global form.
- --------------------------------------------------------------------------------
A-9
EXHIBIT B
FORM OF SUPPLEMENTAL INDENTURE
TO BE DELIVERED BY SUBSEQUENT GUARANTORS
Supplemental Indenture (this "Supplemental Indenture"), dated as of
________, among __________________ (the "Guaranteeing Subsidiary"), a
subsidiary of CROWN CASTLE INTERNATIONAL CORP. (or its permitted successor), a
Delaware corporation (the "Company"), the Company, the other Guarantors (as
defined in the Indenture referred to herein) and UNITED STATES TRUST COMPANY OF
NEW YORK, as trustee under the Indenture referred to below (the "Trustee").
W I T N E S S E T H
WHEREAS, the Company has heretofore executed and delivered to the Trustee
an indenture (the "Indenture"), dated as of May 17, 1999 providing for the
issuance of an aggregate principal amount at maturity of up to $666.0 million of
10% Senior Discount Notes due 2011 (the "Notes");
WHEREAS, the Indenture provides that under certain circumstances the
Guaranteeing Subsidiary shall execute and deliver to the Trustee a supplemental
indenture pursuant to which the Guaranteeing Subsidiary shall unconditionally
guarantee all of the Company's Obligations under the Notes and the Indenture on
the terms and conditions set forth herein (the "Note Guarantee"); and
WHEREAS, pursuant to Section 9.1 of the Indenture, the Trustee is
authorized to execute and deliver this Supplemental Indenture.
NOW THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt of which is hereby acknowledged, the
Guaranteeing Subsidiary and the Trustee mutually covenant and agree for the
equal and ratable benefit of the Holders of the Notes as follows:
1. Capitalized Terms. Capitalized terms used herein without definition
shall have the meanings assigned to them in the Indenture.
2. Agreement to Guarantee. The Guaranteeing Subsidiary hereby agrees as
follows:
(a) Along with all Guarantors named in the Indenture, to jointly and
severally Guarantee to each Holder of a Note authenticated and
delivered by the Trustee and to the Trustee and its successors
and assigns, irrespective of the validity and enforceability of
the Indenture, the Notes or the obligations of the Company
hereunder or thereunder, that:
(i) the principal of and interest on the Notes will be promptly
paid in full when due, whether at maturity, by acceleration,
redemption or otherwise, and interest on the overdue
principal of and interest on the Notes, if any, if lawful,
and all other obligations of the Company to the Holders or
the Trustee hereunder or thereunder will be promptly paid in
full or performed, all in accordance with the terms hereof
and thereof; and
B-1
(ii) in case of any extension of time of payment or renewal of
any Notes or any of such other obligations, that same will
be promptly paid in full when due or performed in accordance
with the terms of the extension or renewal, whether at
stated maturity, by acceleration or otherwise. Failing
payment when due of any amount so guaranteed or any
performance so guaranteed for whatever reason, the
Guarantors shall be jointly and severally obligated to pay
the same immediately.
(b) The obligations hereunder shall be unconditional, irrespective of
the validity, regularity or enforceability of the Notes or the
Indenture, the absence of any action to enforce the same, any
waiver or consent by any Holder of the Notes with respect to any
provisions hereof or thereof, the recovery of any judgment
against the Company, any action to enforce the same or any other
circumstance which might otherwise constitute a legal or
equitable discharge or defense of a guarantor.
(c) The following is hereby waived: diligence, presentment, demand
of payment, filing of claims with a court in the event of
insolvency or bankruptcy of the Company, any right to require a
proceeding first against the Company, protest, notice and all
demands whatsoever.
(d) This Note Guarantee shall not be discharged except by complete
performance of the obligations contained in the Notes and the
Indenture.
(e) If any Holder or the Trustee is required by any court or
otherwise to return to the Company, the Guarantors, or any
Custodian, Trustee, liquidator or other similar official acting
in relation to either the Company or the Guarantors, any amount
paid by either to the Trustee or such Holder, this Note
Guarantee, to the extent theretofore discharged, shall be
reinstated in full force and effect.
(f) The Guaranteeing Subsidiary shall not be entitled to any right of
subrogation in relation to the Holders in respect of any
obligations guaranteed hereby until payment in full of all
obligations guaranteed hereby.
(g) As between the Guarantors, on the one hand, and the Holders and
the Trustee, on the other hand, (x) the maturity of the
obligations guaranteed hereby may be accelerated as provided in
Article 6 of the Indenture for the purposes of this Note
Guarantee, notwithstanding any stay, injunction or other
prohibition preventing such acceleration in respect of the
obligations guaranteed hereby, and (y) in the event of any
declaration of acceleration of such obligations as provided in
Article 6 of the Indenture, such obligations (whether or not due
and payable) shall forthwith become due and payable by the
Guarantors for the purpose of this Note Guarantee.
B-2
(h) The Guarantors shall have the right to seek contribution from any
non-paying Guarantor so long as the exercise of such right does
not impair the rights of the Holders under the Guarantee.
(i) Pursuant to Section 10.02 of the Indenture, after giving effect
to any maximum amount and any other contingent and fixed
liabilities that are relevant under any applicable Bankruptcy or
fraudulent conveyance laws, and after giving effect to any
collections from, rights to receive contribution from or payments
made by or on behalf of any other Guarantor in respect of the
obligations of such other Guarantor under Article 10 of the
Indenture shall result in the obligations of such Guarantor under
its Note Guarantee not constituting a fraudulent transfer or
conveyance.
3 Execution and Delivery. Each Guaranteeing Subsidiary agrees that the
Note Guarantees shall remain in full force and effect notwithstanding any
failure to endorse on each Note a notation of such Note Guarantee.
4. Guaranteeing Subsidiary May Consolidate, Etc. on Certain Terms.
(a) The Guaranteeing Subsidiary may not consolidate with or merge with or
into (whether or not such Guarantor is the surviving Person) another
corporation, Person or entity whether or not affiliated with such
Guarantor unless:
(i) subject to Section 10.05 of the Indenture, the Person formed by
or surviving any such consolidation or merger (if other than a
Guarantor or the Company) unconditionally assumes all the
obligations of such Guarantor, pursuant to a supplemental
indenture in form and substance reasonably satisfactory to the
Trustee, under the Notes, the Indenture and the Note Guarantee on
the terms set forth herein or therein; and
(ii) immediately after giving effect to such transaction, no Default
or Event of Default exists.
(b) In case of any such consolidation, merger, sale or conveyance and upon
the assumption by the successor corporation, by supplemental
indenture, executed and delivered to the Trustee and satisfactory in
form to the Trustee, of the Note Guarantee endorsed upon the Notes and
the due and punctual performance of all of the covenants and
conditions of the Indenture to be performed by the Guarantor, such
successor corporation shall succeed to and be substituted for the
Guarantor with the same effect as if it had been named herein as a
Guarantor. Such successor corporation thereupon may cause to be
signed any or all of the Note Guarantees to be endorsed upon all of
the Notes issuable hereunder which theretofore shall not have been
signed by the Company and delivered to the Trustee. All the Note
Guarantees so issued shall in all respects have the same legal rank
and benefit under the Indenture as the Note Guarantees theretofore and
thereafter issued in accordance with the terms of the Indenture as
though all of such Note Guarantees had been issued at the date of the
execution hereof.
B-3
(c) Except as set forth in Articles 4 and 5 of the Indenture, and
notwithstanding clauses (a) and (b) above, nothing contained in the
Indenture or in any of the Notes shall prevent any consolidation or
merger of a Guarantor with or into the Company or another Guarantor,
or shall prevent any sale or conveyance of the property of a Guarantor
as an entirety or substantially as an entirety to the Company or
another Guarantor.
5. Releases.
(a) In the event of a sale or other disposition of all of the assets of
any Guarantor, by way of merger, consolidation or otherwise, or a sale
or other disposition of all to the capital stock of any Guarantor,
then such Guarantor (in the event of a sale or other disposition, by
way of merger, consolidation or otherwise, of all of the capital stock
of such Guarantor) or the corporation acquiring the property (in the
event of a sale or other disposition of all or substantially all of
the assets of such Guarantor) will be released and relieved of any
obligations under its Note Guarantee; provided that the Net Proceeds
of such sale or other disposition are applied in accordance with the
applicable provisions of the Indenture, including without limitation
Section 4.10 of the Indenture. Upon delivery by the Company to the
Trustee of an Officers' Certificate and an Opinion of Counsel to the
effect that such sale or other disposition was made by the Company in
accordance with the provisions of the Indenture, including without
limitation Section 4.10 of the Indenture, the Trustee shall execute
any documents reasonably required in order to evidence the release of
any Guarantor from its obligations under its Note Guarantee.
(b) Any Guarantor not released from its obligations under its Note
Guarantee shall remain liable for the full amount of principal of and
interest on the Notes and for the other obligations of any Guarantor
under the Indenture as provided in Article 10 of the Indenture.
6. No Recourse Against Others. No past, present or future director,
officer, employee, incorporator, stockholder or agent of the Guaranteeing
Subsidiary, as such, shall have any liability for any obligations of the Company
or any Guaranteeing Subsidiary under the Notes, any Note Guarantees, the
Indenture or this Supplemental Indenture or for any claim based on, in respect
of, or by reason of, such obligations or their creation. Each Holder of the
Notes by accepting a Note waives and releases all such liability. The waiver
and release are part of the consideration for issuance of the Notes. Such
waiver may not be effective to waive liabilities under the federal securities
laws and it is the view of the Commission that such a waiver is against public
policy.
7. NEW YORK LAW TO GOVERN. THE INTERNAL LAW OF THE STATE OF NEW YORK
SHALL GOVERN AND BE USED TO CONSTRUE THIS SUPPLEMENTAL INDENTURE BUT WITHOUT
GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT
THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
8. Counterparts The parties may sign any number of copies of this
Supplemental Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement.
9. Effect of Headings. The Section headings herein are for convenience
only and shall not affect the construction hereof.
B-4
10. The Trustee. The Trustee shall not be responsible in any manner
whatsoever for or in respect of the validity or sufficiency of this Supplemental
Indenture or for or in respect of the recitals contained herein, all of which
recitals are made solely by the Guaranteeing Subsidiary and the Company.
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed and attested, all as of the date first above
written.
Dated:______________
[Guaranteeing Subsidiary]
By:
---------------------------------------
Name:
Title:
Crown Castle International Corp.
By:
---------------------------------------
Name:
Title:
[Other Guarantors]
By:
---------------------------------------
Name:
Title
United States Trust Company of New York
as Trustee
By:
---------------------------------------
Name:
Title:
B-5
EXHIBIT C
FORM OF NOTATION OF GUARANTEE
For value received, each Guarantor (which term includes any successor
Person under the Indenture) has, jointly and severally, unconditionally
guaranteed, to the extent set forth in the Indenture and subject to the
provisions in the Indenture dated as of May 17, 1999 (the "Indenture") among
CROWN CASTLE INTERNATIONAL CORP. and UNITED STATES TRUST COMPANY OF NEW YORK, as
trustee (the "Trustee"), (a) the due and punctual payment of the principal of,
premium, if any, and interest on the Notes (as defined in the Indenture),
whether at maturity, by acceleration, redemption or otherwise, the due and
punctual payment of interest on overdue principal and premium, and, to the
extent permitted by law, interest, and the due and punctual performance of all
other obligations of the Company to the Holders or the Trustee all in accordance
with the terms of the Indenture and (b) in case of any extension of time of
payment or renewal of any Notes or any of such other obligations, that the same
will be promptly paid in full when due or performed in accordance with the terms
of the extension or renewal, whether at stated maturity, by acceleration or
otherwise. The obligations of the Guarantors to the Holders of Notes and to the
Trustee pursuant to the Note Guarantee and the Indenture are expressly set forth
in Article 10 of the Indenture and reference is hereby made to the Indenture for
the precise terms of the Note Guarantee. Each Holder of a Note, by accepting
the same, agrees to and shall be bound by such provisions.
[Name of Guarantor(s)]
By:
---------------------------------------
Name:
Title:
C-1
EXHIBIT 23.1
The Board of Directors
Crown Castle International Corp.:
We consent to incorporation by reference in the registration statement on
Form S-4 of Crown Castle International Corp. of our report dated February 24,
1999, relating to the consolidated balance sheets of Crown Castle International
Corp. and subsidiaries as of December 31, 1998, and 1997, and the related
consolidated statements of operations and comprehensive income, stockholders'
equity (deficit), and cash flows for each of the years in the three-year period
ended December 31, 1998, the financial statements of the Home Service
Transmission business of the BBC at March 31, 1996 and for the year ended March
31, 1996 and the period from April 1, 1996 to February 27, 1997, the
consolidated financial statements of CTSH at March 31, 1997 and December 31,
1997 and for the period from February 28, 1997 to March 31, 1997 and the period
from April 1, 1997 to December 31, 1997, the financial statements of the Bell
Atlantic Mobile Tower Operations at December 31, 1998 and for each of the two
years in the period ended December 31, 1998 and the financial statements of the
Powertel Tower Operations at December 31, 1998 and for the year ended December
31, 1998, and all related schedules, which report appears in the December 31,
1998 annual report on Form 10-K of Crown Castle International Corp.
/s/ KPMG LLP
Houston, Texas
September 24, 1999
EXHIBIT 25.1
FORM T-1
==============================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
__________________
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
__________________
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) _______
__________________
UNITED STATES TRUST COMPANY OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-3818954
(Jurisdiction of incorporation (I.R.S. employer
if not a U.S. national bank) identification No.)
114 West 47th Street 10036-1532
New York, NY (Zip Code)
(Address of principal
executive offices)
__________________
Crown Castle International Corp.
(Exact name of obligor as specified in its charter)
Delaware 76-0470458
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
510 Bering Drive, Suite 500 77057
Houston, Texas (Zip Code)
(Address of principal executive offices)
__________________
9-1/2% Senior Discount Notes due 2011
(Title of the indenture securities)
==============================================
- 2 -
GENERAL
1. General Information
-------------------
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to which it
is subject.
Federal Reserve Bank of New York (2nd District), New York, New York
(Board of Governors of the Federal Reserve System)
Federal Deposit Insurance Corporation, Washington, D.C.
New York State Banking Department, Albany, New York
(b) Whether it is authorized to exercise corporate trust powers.
The trustee is authorized to exercise corporate trust powers.
2. Affiliations with the Obligor
-----------------------------
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None
3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14 and 15:
Crown Castle International Corp. currently is not in default under any of
its outstanding securities for which United States Trust Company of New
York is Trustee. Accordingly, responses to Items 3, 4, 5, 6, 7, 8, 9, 10,
11, 12, 13, 14 and 15 of Form T-1 are not required under General
Instruction B.
16. List of Exhibits
----------------
T-1.1 -- Organization Certificate, as amended, issued by the State
of New York Banking Department to transact business as a
Trust Company, is incorporated by reference to Exhibit T-
1.1 to Form T-1 filed on September 15, 1995 with the
Commission pursuant to the Trust Indenture Act of 1939, as
amended by the Trust Indenture Reform Act of 1990
(Registration No. 33-97056).
- 3 -
16. List of Exhibits (cont'd)
----------------
T-1.2 -- Included in Exhibit T-1.1.
T-1.3 -- Included in Exhibit T-1.1.
T-1.4 -- The By-Laws of United States Trust Company of New York, as
amended, is incorporated by reference to Exhibit T-1.4 to
Form T-1 filed on September 15, 1995 with the Commission
pursuant to the Trust Indenture Act of 1939, as amended by
the Trust Indenture Reform Act of 1990 (Registration No.
33-97056).
T-1.6 -- The consent of the trustee required by Section 321(b) of
the Trust Indenture Act of 1939, as amended by the Trust
Indenture Reform Act of 1990.
T-1.7 -- A copy of the latest report of condition of the trustee
pursuant to law or the requirements of its supervising or
examining authority.
NOTE
====
As of September 17, 1999, the trustee had 2,999,020 shares of Common Stock
outstanding, all of which are owned by its parent company, U.S. Trust
Corporation. The term "trustee" in Item 2, refers to each of United States Trust
Company of New York and its parent company, U. S. Trust Corporation.
In answering Item 2 in this statement of eligibility as to matters peculiarly
within the knowledge of the obligor or its directors, the trustee has relied
upon information furnished to it by the obligor and will rely on information to
be furnished by the obligor and the trustee disclaims responsibility for the
accuracy or completeness of such information.
__________________
Pursuant to the requirements of the Trust Indenture Act of 1939, the trustee,
United States Trust Company of New York, a corporation organized and existing
under the laws of the State of New York, has duly caused this statement of
eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in the City of New York, and State of New York, on the 17th day
of September, 1999.
UNITED STATES TRUST COMPANY
OF NEW YORK, Trustee
By: /s/ Margaret Ciesmelewski
-----------------------------
Margaret Ciesmelewski
Assistant Vice President
Exhibit T-1.6
-------------
The consent of the trustee required by Section 321(b) of the Act.
United States Trust Company of New York
114 West 47th Street
New York, NY 10036
January 7, 1997
Securities and Exchange Commission
450 5th Street, N.W.
Washington, DC 20549
Gentlemen:
Pursuant to the provisions of Section 321(b) of the Trust Indenture Act of 1939,
as amended by the Trust Indenture Reform Act of 1990, and subject to the
limitations set forth therein, United States Trust Company of New York ("U.S.
Trust") hereby consents that reports of examinations of U.S. Trust by Federal,
State, Territorial or District authorities may be furnished by such authorities
to the Securities and Exchange Commission upon request therefor.
Very truly yours,
UNITED STATES TRUST COMPANY
OF NEW YORK
/s/ Gerard F. Ganey
----------------------------
By: Gerard F. Ganey
Senior Vice President
EXHIBIT T-1.7
UNITED STATES TRUST COMPANY OF NEW YORK
CONSOLIDATED STATEMENT OF CONDITION
JUNE 30, 1999
-------------
($ IN THOUSANDS)
ASSETS
- ------
Cash and Due from Banks $ 237,532
Short-Term Investments 155,678
Securities, Available for Sale 505,561
Loans 2,312,569
Less: Allowance for Credit Losses 17,486
----------
Net Loans 2,295,083
Premises and Equipment 56,119
Other Assets 128,087
----------
Total Assets $3,378,060
==========
LIABILITIES
- -----------
Deposits:
Non-Interest Bearing $ 815,644
Interest Bearing 1,931,882
----------
Total Deposits 2,747,526
Short-Term Credit Facilities 310,113
Accounts Payable and Accrued Liabilities 131,638
----------
Total Liabilities $3,189,277
==========
STOCKHOLDER'S EQUITY
- --------------------
Common Stock 14,995
Capital Surplus 53,041
Retained Earnings 121,974
Unrealized Loss on Securities
Available for Sale (Net of Taxes) (1,227)
----------
Total Stockholder's Equity 188,783
----------
Total Liabilities and
Stockholder's Equity $3,378,060
==========
I, Richard E. Brinkmann, Managing Director & Comptroller of the named bank do
hereby declare that this Statement of Condition has been prepared in conformance
with the instructions issued by the appropriate regulatory authority and is true
to the best of my knowledge and belief.
Richard E. Brinkmann, Managing Director & Controller
August 23, 1999
EXHIBIT 25.2
FORM T-1
==============================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
__________________
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
__________________
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) _______
__________________
UNITED STATES TRUST COMPANY OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-3818954
(Jurisdiction of incorporation (I.R.S. employer
if not a U.S. national bank) identification No.)
114 West 47th Street 10036-1532
New York, NY (Zip Code)
(Address of principal
executive offices)
__________________
Crown Castle International Corp.
(Exact name of obligor as specified in its charter)
Delaware 76-0470458
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
510 Bering Drive, Suite 500 77057
Houston, Texas (Zip Code)
(Address of principal executive offices)
_________________
11-1/4% Senior Discount Notes due 2011
(Title of the indenture securities)
==============================================
- 2 -
GENERAL
1. General Information
-------------------
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to which it
is subject.
Federal Reserve Bank of New York (2nd District), New York, New York
(Board of Governors of the Federal Reserve System)
Federal Deposit Insurance Corporation, Washington, D.C.
New York State Banking Department, Albany, New York
(b) Whether it is authorized to exercise corporate trust powers.
The trustee is authorized to exercise corporate trust powers.
2. Affiliations with the Obligor
-----------------------------
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None
3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14 and 15:
Crown Castle International Corp. currently is not in default under any of
its outstanding securities for which United States Trust Company of New York
is Trustee. Accordingly, responses to Items 3, 4, 5, 6, 7, 8, 9, 10, 11, 12,
13, 14 and 15 of Form T-1 are not required under General Instruction B.
16. List of Exhibits
----------------
T-1.1 -- Organization Certificate, as amended, issued by the State of
New York Banking Department to transact business as a Trust
Company, is incorporated by reference to Exhibit T-1.1 to
Form T-1 filed on September 15, 1995 with the Commission
pursuant to the Trust Indenture Act of 1939, as amended by
the Trust Indenture Reform Act of 1990 (Registration No. 33-
97056).
- 3 -
16. List of Exhibits (cont'd)
----------------
T-1.2 -- Included in Exhibit T-1.1.
T-1.3 -- Included in Exhibit T-1.1.
T-1.4 -- The By-Laws of United States Trust Company of New York, as
amended, is incorporated by reference to Exhibit T-1.4 to Form
T-1 filed on September 15, 1995 with the Commission pursuant
to the Trust Indenture Act of 1939, as amended by the Trust
Indenture Reform Act of 1990 (Registration No. 33-97056).
T-1.6 -- The consent of the trustee required by Section 321(b) of the
Trust Indenture Act of 1939, as amended by the Trust Indenture
Reform Act of 1990.
T-1.7 -- A copy of the latest report of condition of the trustee
pursuant to law or the requirements of its supervising or
examining authority.
NOTE
====
As of September 17, 1999, the trustee had 2,999,020 shares of Common Stock
outstanding, all of which are owned by its parent company, U.S. Trust
Corporation. The term "trustee" in Item 2, refers to each of United States
Trust Company of New York and its parent company, U. S. Trust Corporation.
In answering Item 2 in this statement of eligibility as to matters peculiarly
within the knowledge of the obligor or its directors, the trustee has relied
upon information furnished to it by the obligor and will rely on information to
be furnished by the obligor and the trustee disclaims responsibility for the
accuracy or completeness of such information.
__________________
Pursuant to the requirements of the Trust Indenture Act of 1939, the trustee,
United States Trust Company of New York, a corporation organized and existing
under the laws of the State of New York, has duly caused this statement of
eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in the City of New York, and State of New York, on the 17th day
of September, 1999.
UNITED STATES TRUST COMPANY
OF NEW YORK, Trustee
By: /s/ Margaret Ciesmelewski
--------------------------
Margaret Ciesmelewski
Assistant Vice President
Exhibit T-1.6
-------------
The consent of the trustee required by Section 321(b) of the Act.
United States Trust Company of New York
114 West 47th Street
New York, NY 10036
January 7, 1997
Securities and Exchange Commission
450 5th Street, N.W.
Washington, DC 20549
Gentlemen:
Pursuant to the provisions of Section 321(b) of the Trust Indenture Act of 1939,
as amended by the Trust Indenture Reform Act of 1990, and subject to the
limitations set forth therein, United States Trust Company of New York ("U.S.
Trust") hereby consents that reports of examinations of U.S. Trust by Federal,
State, Territorial or District authorities may be furnished by such authorities
to the Securities and Exchange Commission upon request therefor.
Very truly yours,
UNITED STATES TRUST COMPANY
OF NEW YORK
/s/Gerard F. Ganey
-----------------------
By: Gerard F. Ganey
Senior Vice President
EXHIBIT T-1.7
UNITED STATES TRUST COMPANY OF NEW YORK
CONSOLIDATED STATEMENT OF CONDITION
JUNE 30, 1999
-------------
($ IN THOUSANDS)
ASSETS
- ------
Cash and Due from Banks $ 237,532
Short-Term Investments 155,678
Securities, Available for Sale 505,561
Loans 2,312,569
Less: Allowance for Credit Losses 17,486
----------
Net Loans 2,295,083
Premises and Equipment 56,119
Other Assets 128,087
----------
Total Assets $3,378,060
==========
LIABILITIES
- -----------
Deposits:
Non-Interest Bearing $ 815,644
Interest Bearing 1,931,882
----------
Total Deposits 2,747,526
Short-Term Credit Facilities 310,113
Accounts Payable and Accrued Liabilities 131,638
----------
Total Liabilities $3,189,277
==========
STOCKHOLDER'S EQUITY
- --------------------
Common Stock 14,995
Capital Surplus 53,041
Retained Earnings 121,974
Unrealized Loss on Securities
Available for Sale (Net of Taxes) (1,227)
----------
Total Stockholder's Equity 188,783
----------
Total Liabilities and
Stockholder's Equity $3,378,060
==========
I, Richard E. Brinkmann, Managing Director & Comptroller of the named bank do
hereby declare that this Statement of Condition has been prepared in conformance
with the instructions issued by the appropriate regulatory authority and is true
to the best of my knowledge and belief.
Richard E. Brinkmann, Managing Director & Controller
August 23, 1999
