As filed with the Securities and Exchange Commission on February 12, 1997
Registration No. 333-21331
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
Under
The Securities Act of 1933
360 Communications Company
(Exact name of registrant as specified in its charter)
Delaware 47-0649117
(State or other jurisdiction of (I.R.S. Employer
Incorporation or organization) Identification No.)
8725 W. Higgins Road
Chicago, Illinois 60631-2702
(773) 399-2500
(Address, including zip code and telephone number, including area code of
registrant's principal executive offices)
Kevin C. Gallagher, Esq.
Senior Vice President, General Counsel and Secretary
8725 W. Higgins Road
Chicago, Illinois 60631-2702
(773) 399-2500
(Name, address, including zip code and telephone number, including
area code, of agent for service)
Approximate date of commencement of proposed sale to the public:
From time to time after the effective date of this Registration Statement as
determined by market conditions.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box.|_|
If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box.|X|
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering.|_|
If this form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering.|_|
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box.|_|
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, as amended, or until this Registration Statement
shall become effective on such date as the Commission, acting pursuant to said
Section 8(a), may determine.
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SUBJECT TO COMPLETION, DATED FEBRUARY 12, 1997
PROSPECTUS
360 Communications Company
Debt Securities
Warrants to Purchase Debt Securities
360 Communications Company (the "Company") may offer from time to time
its unsecured senior debt securities (the "Debt Securities") and/or warrants
(the "Warrants") to purchase Debt Securities at prices and on terms to be
determined when an agreement to sell is made or at the time or times of sale, as
the case may be. The Debt Securities and the Warrants offered pursuant to this
Prospectus may be issued in one or more series or issuances, as the case may be,
and the aggregate initial offering price thereof will not exceed $500,000,000.
The Debt Securities and the Warrants are collectively referred to herein as the
"Securities."
This Prospectus will be supplemented by an accompanying prospectus
supplement or supplements ("Prospectus Supplement") that will set forth, in the
case of any Debt Securities for which this Prospectus is being delivered
("Offered Debt Securities"), the form in which such Debt Securities are to be
issued and the designation thereof, the aggregate principal amount, rate or
rates (or method of calculation thereof) and times of payment of interest,
maturity or maturities, the purchase price or prices and initial offering price
or prices, redemption or repurchase provisions, if any, and other specific terms
of such Debt Securities and, in the case of any Warrants for which this
Prospectus is being delivered ("Offered Warrants"), a description of the Debt
Securities for which each such Warrant is exercisable and the offering price, if
any, exercise price, duration, detachability and other specific items of such
Warrants. See "Description of Debt Securities" and "Description of Warrants"
herein.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF
THIS PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
The Company may sell the Securities to or through underwriters, dealers
or agents, or directly to one or more purchasers. The Prospectus Supplement will
set forth the names of underwriters or agents, if any, any applicable
commissions or discounts and the net proceeds to the Company from any such sale.
See "Plan of Distribution" for possible indemnification arrangements for
underwriters, dealers and agents.
The date of this Prospectus is , 1997.
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INFORMATION HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A REGISTRATION
STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE SECURITIES AND
EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY OFFERS TO BUY BE
ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES EFFECTIVE. THIS
PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE SOLICITATION OF AN OFFER
TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES IN ANY STATE IN WHICH
SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR TO REGISTRATION OR
QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
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AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and, in
accordance therewith, files reports, proxy statements and other information with
the Securities and Exchange Commission (the "Commission"). The Registration
Statement of which this Prospectus is a part, as well as reports, proxy
statements and other information filed by the Company with the Commission
pursuant to the informational requirements of the Exchange Act, may be inspected
and copied at the public reference facilities maintained by the Commission at
450 Fifth Street N.W., Washington, D.C. 20549, and at the following Regional
Offices of the Commission: Northeast Regional Office, 7 World Trade Center,
Suite 1300, New York, New York 10048; and Midwest Regional Office, Citicorp
Center, 500 West Madison Street, Suite 1400, Chicago, Illinois 60661. Copies of
such material may be obtained from the Public Reference Section of the
Commission at 450 Fifth Street N.W., Washington, D.C. 20549 at prescribed rates.
Such material may also be accessed electronically by means of the Commission's
Web site maintained on the Internet at http://www.sec.gov. Such reports and
other information concerning the Company can also be inspected at the offices of
the New York Stock Exchange, Inc., 20 Broad Street, New York, New York 10005;
The Chicago Stock Exchange, Incorporated, 440 South LaSalle Street, Chicago,
Illinois 60605; and The Pacific Stock Exchange Incorporated, 301 Pine Street,
San Francisco, California 94104.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents have been filed by the Company with the
Commission pursuant to the Exchange Act and are hereby incorporated herein by
reference and made a part of this Prospectus:
(a) The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1995, as amended and supplemented by Form 10-K/A thereto filed with
the Commission on April 15, 1996.
(b) The Company's Quarterly Reports on Form 10-Q for the quarterly
periods ended March 31, 1996, June 30, 1996 and September 30, 1996.
(c) The Company's Current Reports on Form 8-K dated March 26, 1996,
April 23, 1996, July 16, 1996, October 15, 1996, November 1, 1996 and January
24, 1997.
All documents filed by the Company with the Commission pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of
this Prospectus and prior to the termination of the offering of the Securities
shall be deemed to be incorporated by reference in this Prospectus and to be a
part hereof from the date of filing such documents. Any statement contained in a
document incorporated or deemed to be incorporated by reference herein shall be
deemed to be modified or superseded for purposes of this Prospectus to the
extent that a statement contained herein or in any subsequently filed document
which is deemed to be incorporated by reference herein modifies or supersedes
such statement. Any statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this Prospectus.
The Company will provide without charge to each person, including any
beneficial owner, to whom a copy of this Prospectus is delivered, upon written
or oral request of such person, a copy of any or all of the documents referred
to above which have been or may be incorporated by reference in this Prospectus
(not including the exhibits to such documents, unless such exhibits are
specifically incorporated by reference in such documents). Requests for such
documents should be directed to 360 Communications Company, 8725 W. Higgins
Road, Chicago, Illinois 60631-2702, Attention: Investor Relations, telephone
(773) 399-2500.
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THE COMPANY
The Company is one of the leading and most established wireless
communications companies in the United States. As of December 31, 1996, the
Company served approximately 2 million customers in more than 100 markets in 16
states. The Company's interests in these markets represent approximately 24.2
million Net POPs as of December 31, 1996. The Company also owns, as of December
31, 1996, minority interests in 53 additional cellular telephone markets
representing approximately 4.4 million Net POPs, including markets located in
New York, New York; Chicago, Illinois; Houston, Texas; and Orlando, Florida. The
Company sells and markets wireless voice and data services and related products,
as well as residential long distance service, through a distribution network
consisting of nationally recognized and local dealers, full service retail
stores and a direct sales force. "Net POPs" refers to the estimated population
with respect to a given service area multiplied by the percentage interest that
the Company owns in the entity licensed by the Federal Communications Commission
to operate a cellular communications system within that service area.
The Company was incorporated under the laws of the State of Delaware in
1982. In March 1993, Centel Corporation, then the Company's immediate parent,
merged with a wholly-owned subsidiary of Sprint Corporation ("Sprint"). In
February 1996, the Company, then known as Sprint Cellular Company, changed its
name to 360 Communications Company. On March 7, 1996, Sprint completed the
spin-off of the Company through a pro rata distribution to Sprint shareholders
of all of the Common Stock of the Company.
The Company's principal executive offices are located at 8725 W. Higgins
Road, Chicago, Illinois 60631-2702, and its telephone number is (773) 399-2500.
USE OF PROCEEDS
Unless otherwise indicated in an accompanying Prospectus Supplement, the
net proceeds to be received by the Company from the sale of the Securities will
be available for general corporate purposes of the Company and may be used for
the repayment of short-term debt and borrowings under the Company's revolving
credit facility and for the funding of future acquisitions, capital expenditures
and working capital requirements.
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth the ratio of earnings to fixed charges
for the Company and its subsidiaries for the periods indicated:
Nine Months
Ended
September 30, Years Ended December 31,
----------------------------------
1996 1995 1994 1993 1992 1991
------ ------ ------ ------ ------ ------
Ratio of Earnings to
Fixed Charges(1): ........... 2.23 1.32 -- -- -- --
- ----------
(1) The ratio of earnings to fixed charges have been computed by dividing fixed
charges into the sum of (a) income (loss) before cumulative effects of
changes in accounting principles, less capitalized interest, and with
adjustments to appropriately reflect the Company's majority-owned,
50%-owned and less-than-50%-owned affiliates, (b) income taxes and (c)
fixed charges. Fixed charges consist of interest on all indebtedness and
the interest component of operating rents, with adjustments as appropriate
to reflect the Company's 50%-owned affiliates. For each of the four years
in the period ended December 31, 1994, the deficit of earnings to fixed
charges was $8,912,000, $60,217,000, $94,819,000 and $77,607,000,
respectively.
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DESCRIPTION OF DEBT SECURITIES
The Debt Securities will constitute senior unsecured debt securities of
the Company and will be issued under an Indenture (the "Indenture") to be
entered into between the Company and Citibank, N.A., as trustee (the "Trustee").
A copy of the Indenture is filed as an exhibit to the Registration Statement of
which this Prospectus is a part. The following summaries of certain provisions
of the Indenture do not purport to be complete and are qualified in their
entirety by express reference to the detailed provisions of the Indenture,
including the definitions therein of certain terms. References to article and
section numbers under this heading are to articles and section numbers in the
Indenture. Terms used under this heading or in any Prospectus Supplement
relating to the Offered Debt Securities which are defined under this heading are
so defined solely with reference to the Offered Debt Securities.
General
The Indenture does not limit the aggregate principal amount of Debt
Securities that can be issued thereunder and provides that Debt Securities of
any series may be issued thereunder up to the aggregate principal amount that
may be authorized from time to time by the Company. (Art. Three, Sec. 301) The
Indenture does not limit the aggregate principal amount of other indebtedness or
securities that may be issued by the Company. See "Restrictions Under 1996
Indenture and Credit Facility" below for a description of provisions contained
in the 1996 Indenture (as defined below) and the Credit Facility (as defined
below) that may restrict the Company's ability to issue Debt Securities under
the Indenture.
Reference is made to the applicable Prospectus Supplement for the
following terms of the Offered Debt Securities (among others): (i) the title of
such Offered Debt Securities; (ii) the limit, if any, upon the aggregate
principal amount of such Offered Debt Securities that may be issued; (iii) the
rate or rates, or the method of determination thereof, at which such Offered
Debt Securities will bear interest, if any, and the date or dates from which
such interest shall accrue; (iv) the dates on which such interest will be
payable (each, an "Interest Payment Date") and the regular record dates for the
interest payable on such Interest Payment Dates; (v) the obligation, if any, of
the Company to redeem or purchase such Offered Debt Securities pursuant to any
sinking fund or analogous provisions or at the option of the holder thereof and
the periods within which or the dates on which, the prices at which and the
terms and conditions upon which such Offered Debt Securities will be redeemed or
purchased, in whole or in part, pursuant to such obligations; (vi) the periods
within which or the dates on which, the prices at which and the terms and
conditions upon which such Offered Debt Securities may be redeemed, if any, in
whole or in part, at the option of the Company; (vii) if other than
denominations of $1,000 and any integral multiple thereof, the denominations in
which such Offered Debt Securities will be issuable; (viii) whether such Offered
Debt Securities are to be issued in whole or in part in the form of one or more
global Debt Securities and, if so, the identity of the depositary for such
global Debt Securities; and (ix) any other terms of such Offered Debt Securities
not inconsistent with the provisions of the Indenture.
The Indenture does not contain any covenants or other provisions that
are specifically intended to afford holders of the Debt Securities special
protection in the event of a highly leveraged transaction.
Ranking
The Debt Securities will be senior unsecured obligations of the Company,
will rank pari passu in right of payment with all existing and future
unsubordinated, unsecured indebtedness of the Company ("Senior Indebtedness"),
including indebtedness under the 1996 Indenture and the Credit Facility, and
will be senior in right of payment to all future subordinated indebtedness of
the Company. (Art. Three, Sec. 301) As of December 31, 1996, $900 million of the
Company's senior notes issued under an Indenture (the "1996 Indenture") dated as
of March 7, 1996 between the Company and Citibank, N.A., as Trustee, were
outstanding and approximately $680 million in borrowings were outstanding under
the Amended and Restated Credit Agreement (the "Credit Facility") dated as of
October 31, 1996 among the Company and a number of banks and institutional
lenders. As of December 31, 1996, $122 million in aggregate principal amount of
debt subordinated to the Senior Indebtedness was outstanding.
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All existing and future indebtedness and other liabilities of the
Company's subsidiaries, however, will be effectively senior in right of payment
to the Debt Securities. Claims of creditors of the Company's subsidiaries,
including trade creditors, will generally have a priority as to the assets of
such subsidiaries over the claims of the Company and the holders of the
Company's indebtedness, including the Debt Securities. The Indenture does not
limit the amount of indebtedness that may be incurred by subsidiaries of the
Company.
The Debt Securities will be obligations exclusively of the Company.
Since the operations of the Company are primarily conducted through subsidiaries
of the Company, the cash flow and the consequent ability to service debt,
including the Debt Securities, of the Company is primarily dependent upon the
earnings of such subsidiaries and the distribution of those earnings to, or upon
loans or other payments of funds by, such subsidiaries to the Company. The
payment of dividends and the making of loans and advances to the Company by its
subsidiaries may be subject to statutory or contractual restrictions, are
dependent upon the earnings of such subsidiaries and are subject to various
business considerations.
Payment of Debt Securities; Transfers; Exchanges
Except as may be provided in the applicable Prospectus Supplement,
interest, if any, on each Offered Debt Security payable on each Interest Payment
Date will be paid by check mailed to the person in whose name such Debt Security
is registered (the registered holder of any Debt Security being herein called a
"Holder") as of the close of business on the regular record date relating to
such Interest Payment Date; provided, however, that interest payable at maturity
(whether at stated maturity, upon redemption or otherwise, hereinafter
"Maturity") will be paid to the person to whom principal is paid. However, if
there has been a default in the payment of interest on any Debt Security, such
defaulted interest may be payable to the Holder of such Debt Security as of the
close of business on a date selected by the Trustee not more than 15 days and
not less than 10 days prior to the date proposed by the Company for payment of
such defaulted interest.
Principal of and premium, if any, and interest, if any, on the Debt
Securities at Maturity will be payable upon presentation of the Debt Securities
at the principal corporate trust office of the Trustee in New York, New York.
The Company may change the place of payment on the Debt Securities, may appoint
one or more paying agents (including the Company) and may remove any paying
agent, all in its discretion. The applicable Prospectus Supplement will identify
any new place of payment and any paying agent appointed, and will disclose the
removal of any paying agent effected, prior to the date of such Prospectus
Supplement.
The transfer of Debt Securities may be registered and Debt Securities
may be exchanged for other Debt Securities of authorized denominations and of
like tenor and aggregate principal amount, at the principal corporate trust
office of the Trustee in New York, New York. The Company may change the place
for registration of transfer of the Debt Securities, may appoint one or more
additional security registrars or transfer agents (including the Company) and
may remove any security registrar or transfer agent appointed, all in its
discretion. The applicable Prospectus Supplement will identify any new place for
registration of transfer and any additional security registrar or transfer agent
appointed, and will disclose the removal of any security registrar or transfer
agent effected, prior to the date of such Prospectus Supplement. No service
charge will be made for any transfer or exchange of the Debt Securities, but the
Company may require payment of a sum sufficient to cover any tax or other
governmental charge payable in connection therewith. (Art. Three, Sec. 305) The
Company will not be required (a) to issue, register the transfer of or exchange
Debt Securities during a period of 15 days prior to giving any notice of
redemption or (b) to issue, register the transfer of or exchange any Debt
Security selected for redemption in whole or in part, except the unredeemed
portion of any Debt Security being redeemed in part.
Purchase at the Option of Holders Upon a Change of Control
Upon the occurrence of a Change of Control Triggering Event (as defined
below), each Holder of Debt Securities of any series subject to such Change of
Control Triggering Event shall have the right to require the Company to purchase
all or any part (equal to $1,000 or an integral multiple thereof) of such
Holder's Debt Securities
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pursuant to the offer described below (the "Change of Control Offer") at a
purchase price equal to 101% of the principal amount thereof, plus accrued and
unpaid interest thereon, if any, to the purchase date (the "Change of Control
Purchase Price"). Without the appropriate consent of the Holders of the Debt
Securities of such series, neither the Board of Directors of the Company nor the
Trustee may waive the provisions of the Indenture requiring the Company to make
a Change of Control Offer upon a Change of Control Triggering Event with respect
to the Debt Securities of such series. (Art. Ten, Sec. 1001)
Within 30 days following any Change of Control Triggering Event, the
Company shall (i) cause a notice of the Change of Control Offer to be sent at
least once to the Dow Jones News Service or similar business news service in the
United States and (ii) mail a notice to the Trustee and each Holder of Debt
Securities of any series subject to such Change of Control Triggering Event
stating (1) that a Change of Control Triggering Event has occurred and a Change
of Control Offer is being made pursuant to the covenant in the Indenture
entitled "Repurchase of Securities at Option of the Holder Upon a Change of
Control" and that all Debt Securities of such series timely tendered will be
accepted for payment; (2) the purchase price and the purchase date, which shall
be, subject to any contrary requirement of applicable law, a business day no
earlier than 30 days nor later than 60 days from the date such notice is mailed
(the "Change of Control Payment Date"); (3) that any Debt Security of such
series (or portion thereof) accepted for payment (and duly paid on the Change of
Control Payment Date) pursuant to the Change of Control Offer shall cease to
accrue interest after the Change of Control Payment Date; (4) that any Debt
Securities of such series (or portions thereof) not tendered will continue to
accrue interest; (5) a description of the transaction or transactions
constituting the Change of Control Triggering Event; and (6) the procedures that
Holders of Debt Securities of such series must follow in order to tender their
Debt Securities (or portions thereof) for payment and the procedures that
Holders of Debt Securities of such series must follow in order to withdraw an
election to tender their Debt Securities (or portions thereof) for payment.
(Art. Ten, Sec. 1001)
Under the Indenture, a "Change of Control Triggering Event" is defined
as the occurrence of both a Change of Control (as defined below) and a Rating
Decline (as defined below) with respect to the Debt Securities of any series.
"Change of Control" is defined as the occurrence of any of the following events:
(i) any "person" or "group" (within the meaning of Sections 13(d) and 14(d) of
the Exchange Act (provided that a group formed solely for the purpose of voting
securities shall not be deemed to be a group for purposes of this definition))
is or becomes the "beneficial owner" (as defined in Rule 13d-3 under the
Exchange Act), directly or indirectly, of 35% or more of the total voting power
of the fully diluted Voting Stock (defined as all classes of capital stock
normally entitled to vote in the election of directors) of the Company; (ii)
during any period of two consecutive years, individuals who at the beginning of
such period constituted the Board of Directors of the Company (together with new
directors whose election by the Board of Directors of the Company or whose
nomination for election by the shareholders of the Company was approved by a
vote of 66 2/3% of the directors of the Company then still in office who were
either directors at the beginning of such period or whose election or nomination
for election was previously so approved) cease for any reason to constitute a
majority of the Board of Directors of the Company then in office; (iii) the
Company consolidates or merges with or into any other Persons (as defined below)
or any other Person consolidates or merges with or into the Company, in either
case, other than a consolidation or merger (a) with a wholly-owned subsidiary of
the Company in which all of the Voting Stock of the Company outstanding
immediately prior to the effectiveness thereof is changed into or exchanged for
substantially the same consideration or (b) pursuant to a transaction in which
the outstanding Voting Stock of the Company is changed into or exchanged for
cash, securities or other property with the effect that the "beneficial owners"
(as such term is used in Section 13(d) of the Exchange Act) of the outstanding
Voting Stock of the Company immediately prior to such transaction, beneficially
own, directly or indirectly, more than 50% of the total voting power of the
fully diluted Voting Stock of the surviving corporation immediately following
such transaction; or (iv) the Company sells, conveys, transfers or leases,
directly or indirectly, all or substantially all of its assets to any Person
other than a wholly-owned subsidiary of the Company. "Person" is defined as any
individual, corporation, company (including any limited liability company),
partnership, joint venture, trust, unincorporated organization or government or
any agency or political subdivision thereof.
A "Rating Decline" with respect to the Debt Securities of any series is
defined under the Indenture as the occurrence of the following on, or within 90
days after the date of public notice of the occurrence of a Change of
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Control or of the intention by the Company to effect a Change of Control
(which period shall be extended so long as the rating assigned to the Debt
Securities of such series is under publicly announced consideration for the
possible downgrade by any of Standard & Poor's Rating Group, a division of
McGraw Hill, Inc. ("S&P"), Duff & Phelps Credit Rating Co. ("Duff & Phelps") and
Moody's Investors Service, Inc. ("Moody's") (or any successor to the respective
rating agency businesses thereof, collectively, the "Rating Agencies")): (a) in
the event the Debt Securities of such series are assigned an Investment Grade
Rating (as defined below) by at least two of the three Rating Agencies on the
Rating Date (as defined below), the rating assigned to the Debt Securities of
such series by at least two of the three Rating Agencies shall be below an
Investment Grade Rating; or (b) in the event the Debt Securities of such series
are rated below an Investment Grade Rating by at least two of the three Rating
Agencies on the Rating Date, the rating assigned to the Debt Securities of such
series by at least two of the three Rating Agencies shall be decreased by one or
more gradations (including gradations within rating categories as well as
between rating categories). "Investment Grade Rating" is defined as a rating
equal to or higher than Baa3 (or the equivalent) by Moody's, BBB- (or the
equivalent) by S&P and BBB- (or the equivalent) by Duff & Phelps. "Rating Date"
is defined as the date which is 90 days prior to the earlier of (i) a Change of
Control and (ii) public notice of the occurrence of a Change of Control or the
intention of the Company to effect a Change of Control.
The Company will comply to the extent then applicable and required by law
with the requirements of Rule 14e-1 under the Exchange Act and any other
securities laws and regulations thereunder in connection with the purchase of
Debt Securities in connection with a Change of Control. To the extent that the
provisions of any securities laws or regulations conflict with the provisions
relating to the Change of Control Offer, the Company will comply with the
applicable securities laws and regulations and will not be deemed to have
breached its obligations described above by virtue thereof. (Art. Ten, Sec.
1002)
Except as described above with respect to a Change of Control Triggering
Event and except as may be set forth in the applicable Prospectus Supplement,
the Holders of the Debt Securities of any series are not entitled to any other
rights to require the Company to purchase or redeem their Debt Securities in the
event of a takeover, recapitalization or similar restructuring.
The 1996 Indenture contains change of control repayment provisions
substantially identical to those contained in the Indenture. The occurrence of
certain of the events that would constitute a Change of Control under the
Indenture and the 1996 Indenture would constitute an event of default under the
Credit Facility. If the Company is not able to obtain requisite consents or
waivers from the lenders under the Credit Facility, the Company may be unable to
fulfill its repurchase obligations following a Change of Control Triggering
Event, thereby resulting in a default under the Indenture and the 1996 Indenture
and permitting the pursuit of remedies thereunder. Future Senior Indebtedness of
the Company may also contain prohibitions of certain events that would
constitute a Change of Control or require such Senior Indebtedness to be
repurchased upon a Change of Control. Moreover, the exercise by the Holders of
Debt Securities of any series of their right to require the Company to
repurchase such Debt Securities could cause a default under such Senior
Indebtedness, even if the Change of Control Triggering Event itself does not,
due to the financial effect of such repurchase obligation on the Company.
Finally, the Company's ability to pay cash to the Holders upon a repurchase may
be limited by the Company's then existing financial resources. In the event that
a Change of Control Offer occurs at a time when the Company does not have
sufficient available funds to pay the Change of Control Purchase Price for all
Debt Securities tendered pursuant to such offer, or a time when the Company is
prohibited from purchasing such Debt Securities (and the Company is unable
either to obtain the consent of the holders of the relevant indebtedness or to
repay such indebtedness), an Event of Default (as defined below) would occur
under the Indenture.
Redemption
Any terms for the optional or mandatory redemption of Offered Debt
Securities by the Company (other than as discussed above under "Purchase at the
Option of Holders Upon a Change of Control") will be set forth in the applicable
Prospectus Supplement. Except as may otherwise be provided in the applicable
Prospectus Supplement with respect to Offered Debt Securities redeemable at the
option of the Holder, such Offered Debt Securities will be
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redeemable only upon notice, by mail, not less than 30 or more than 60 days
prior to the date fixed for redemption, and if less than all of the Offered Debt
Securities of any series, or any tranche thereof, are to be redeemed, the
particular Offered Debt Securities will be selected by such methods as the
Trustee deems fair and appropriate. (Art. Four, Sec. 403 and 404)
Events of Default
The following constitute "Events of Default" under the Indenture with
respect to each series of Debt Securities outstanding thereunder:
(a) failure to pay any interest on any Debt Security of such series within
30 days after the same becomes due and payable;
(b) failure to pay the principal of, or premium, if any, on any Debt
Security of such series when the same becomes due and payable at maturity, upon
acceleration, optional redemption, required purchase (including purchases
described above under "Purchase at the Option of Holders Upon a Change of
Control") or otherwise;
(c) failure to perform or breach of any covenant or warranty of the Company
in the Indenture described under "Certain Covenants" below for 30 days after
written notice to the Company by the Trustee, or to the Company and the Trustee
by the Holders of at least 25% in principal amount of the Debt Securities of
such series outstanding under the Indenture as provided in the Indenture;
(d) failure to perform or breach of any other covenant or warranty of the
Company in the Indenture (other than a covenant or warranty of the Company in
the Indenture solely for the benefit of one or more series of Debt Securities
other than the Debt Securities of such series) for 60 days after written notice
to the Company by the Trustee, or to the Company and the Trustee by the Holders
of at least 25% in principal amount of the Debt Securities of such series
outstanding under the Indenture as provided in the Indenture;
(e) failure of the Company or any Restricted Subsidiary to pay when due
within any applicable grace period principal, interest or premium aggregating
$25 million or more with respect to any indebtedness of the Company or any
Restricted Subsidiary (as defined below) (including indebtedness under the 1996
Indenture and the Credit Facility) or the acceleration of any such indebtedness;
(f) any final judgment or decree for the payment of money in an uninsured
aggregate amount in excess of $25 million shall be rendered against the Company
or any Restricted Subsidiary and shall not be waived, satisfied or discharged
for any period of 60 consecutive days during which a stay of enforcement shall
not be in effect;
(g) certain events of bankruptcy, insolvency or reorganization with respect
to the Company or any Restricted Subsidiary; and
(h) any other Event of Default specified with respect to Debt Securities of
such series. (Art. Eight, Sec. 801)
No Event of Default with respect to the Debt Securities of a series
necessarily constitutes an Event of Default with respect to the Debt Securities
of any other series issued under the Indenture. A "Default," with respect to the
Debt Securities of any series, is defined as any event which is, or after notice
or passage of time or both would be, an Event of Default with respect to the
Debt Securities of such series.
Remedies
If an Event of Default with respect to any series of Debt Securities
occurs and is continuing, then either the
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Trustee or the Holders of not less than 25% in principal amount of the
outstanding Debt Securities of such series may declare the principal amount (or
if the Debt Securities of such series are discount notes or similar Debt
Securities, such portion of the principal amount of such Debt Securities as may
be specified in the terms thereof) of all the Debt Securities of such series to
be due and payable immediately; provided, however, that if an Event of Default
occurs and is continuing with respect to more than one series of Debt
Securities, the Trustee or the Holders of not less than 25% in aggregate
principal amount of the outstanding Debt Securities of all such series,
considered as one class, may make such declaration of acceleration and not the
Holders of the Debt Securities of any one of such series.
At any time after the declaration of acceleration with respect to the
Debt Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained, the Event or Events of Default
giving rise to such declaration of acceleration will, without further act, be
deemed to have been waived, and such declaration and its consequences will,
without further act, be deemed to have been rescinded and annulled, if:
(a) the Company has paid or deposited with the Trustee a sum sufficient to
pay:
(1) all overdue interest on all Debt Securities of such series;
(2) the principal of and premium, if any, on any Debt Securities of such
series which have become due otherwise than by such declaration of acceleration
and interest thereon at the rate or rates prescribed therefore in such Debt
Securities;
(3) interest upon overdue interest at the rate or rates prescribed therefor
in such Debt Securities, to the extent that payment of such interest is lawful;
and
(4) all amounts due to the Trustee under the Indenture; and
(b) any other Event or Events of Default with respect to the Debt
Securities of such series, other than the nonpayment of the principal of the
Debt Securities of such series which has become due solely by such declaration
of acceleration, have been cured or waived as provided in the Indenture. (Art.
Eight, Sec. 802)
If an Event of Default with respect to the Debt Securities of any series
occurs and is continuing, the Holders of a majority in principal amount of the
outstanding Debt Securities of such series will have the right to direct the
time, method and place of conducting any proceeding for any remedy available to
the Trustee, or exercising any trust or power conferred on the Trustee, with
respect to the Debt Securities of such series; provided, however, that if an
Event of Default occurs and is continuing with respect to more than one series
of Debt Securities, the Holders of a majority in aggregate principal amount of
the outstanding Debt Securities of all such series, considered as one class,
will have the right to make such direction, and not the Holders of the Debt
Securities of any one of such series. (Art. Eight, Sec. 812) The Trustee is not
required to exercise any of the rights and powers vested in it under the
Indenture at the request or direction of any Holder unless such Holder shall
have offered to the Trustee reasonable security or indemnity against the costs,
expenses and liabilities which might be incurred by it in compliance with such
request or direction. (Art. Nine, Sec. 903) The right of a Holder of any Debt
Security of such series to institute a proceeding with respect to the Indenture
is subject to certain conditions precedent, but each Holder has an absolute
right to receive payment of principal and premium, if any, and interest, if any,
when due and to institute suit for the enforcement of any such payment. (Art.
Eight, Sec. 807 and 808) The Indenture provides that the Trustee is required,
within 90 days after the occurrence of any Default thereunder with respect to
the Debt Securities of a series, to give the Holders of the Debt Securities of
such series notice of any Default known to it, unless cured or waived; provided,
however, that, except in the case of a Default in the payment of principal of or
premium, if any, or interest, if any, on any Debt Securities of such series, the
Trustee may withhold such notice if the Trustee determines that it is in the
interest of such Holders to do so; and provided, further, that in the case of a
default of the character specified above in clauses (c) and (d) under "Events of
Default," no such notice shall be given to such Holders until at least 75 days
after the occurrence thereof. (Art. Nine, Sec. 902)
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The Company will be required to furnish annually to the Trustee a statement
as to the performance by the Company of certain of its obligations under the
Indenture and as to any default in such performance. (Art. Six, Sec. 606)
Certain Covenants
Limitation on Liens. The Indenture provides that the Company shall not, and
shall not permit any Restricted Subsidiary to, directly or indirectly, incur or
suffer to exist, any mortgage, pledge, security interest or lien ("Lien") upon
any of its property or assets, whether now owned or hereinafter acquired, or any
interest therein or any income or profits therefrom, unless it has made or will
make effective provision whereby the Debt Securities will be secured by such
Lien equally and ratably with (or prior to) all other Indebtedness (defined as
any indebtedness, secured or unsecured, contingent or otherwise, which is for
borrowed money) of the Company or any Restricted Subsidiary secured by such Lien
for so long as any such other Indebtedness of the Company or any Restricted
Subsidiary shall be so secured. (Art. Six, Sec. 602)
The foregoing limitation does not apply to (i) Liens incurred by the
Company or any Restricted Subsidiary if, after giving effect to such incurrence
on a pro forma basis, the amount of the total Indebtedness of the Company and
the Restricted Subsidiaries that is secured by a Lien does not exceed 15% of the
product of (a) the sum of the Pro Forma EBITDA (as defined below) of the Company
for the most recent four consecutive fiscal quarters and (b) 6.5; (ii) Liens on
property existing on March 7, 1996; (iii) Liens on property to secure any
extension, renewal, refinancing, replacement or refunding, in whole or in part,
of any Indebtedness secured by Liens referred to in any of clauses (i), (ii),
(viii) or (xi) of this paragraph; (iv) Liens for taxes, assessments or
governmental charges or levies if the same shall not at the time be delinquent
or thereafter can be paid without penalty, or are being contested in good faith
and by appropriate proceedings; (v) Liens imposed by law, such as carriers',
warehousemen's and mechanics' Liens and other similar Liens arising in the
ordinary course of business which secure payment of obligations not more than 60
days past due or are being contested in good faith and by appropriate
proceedings; (vi) Liens incurred in the ordinary course of business to secure
performance of obligations with respect to statutory or regulatory requirements,
performance or return-of-money bonds, surety bonds or other obligations of a
like nature and incurred in a manner consistent with industry practice; (vii)
Liens incurred to secure appeal bonds and judgment and attachment Liens, in each
case in connection with litigation or legal proceedings which are being
contested in good faith by appropriate proceedings so long as reserves have been
established to the extent required by generally accepted accounting principles
as in effect at such time and so long as such Liens do not encumber assets by an
amount in excess of $25 million; (viii) Liens on property at the time the
Company or any Restricted Subsidiary acquired or constructed such property,
including any acquisition by means of a merger or consolidation with or into the
Company or such Restricted Subsidiary; (ix) other Liens on the property of the
Company or any Restricted Subsidiary incidental to the conduct of their
respective businesses or the ownership of their respective properties which were
not created in connection with the incurrence of Indebtedness or the obtaining
of advances or credit and which do not in the aggregate materially detract from
the value of their respective properties or materially impair the use thereof in
the operation of their respective businesses; (x) pledges or deposits under
workmen's compensation laws, unemployment insurance laws or similar legislation,
or good faith deposits in connection with bids, tenders, contracts (other than
for the payment of Indebtedness) or leases to which the Company or any
Restricted Subsidiary is a party, or deposits to secure public or statutory
obligations of the Company or any Restricted Subsidiary or deposits for the
payment of rent, in each case incurred in the ordinary course of business; (xi)
Liens on the property of a Person at the time such Person becomes a Restricted
Subsidiary; provided, however, that any such Lien may not extend to any other
property of the Company or any other Restricted Subsidiary which is not a direct
subsidiary of such Person; provided, further however, that any such Lien was not
incurred in anticipation of or in connection with the transaction or series of
related transactions pursuant to which such Person became a Restricted
Subsidiary; (xii) utility easements, building restrictions and such other
encumbrances or charges against real property as are of a nature generally
existing with respect to properties of a similar character; or (xiii) Liens in
favor of the Trustee securing the obligations of the Company under the Indenture
(collectively, "Permitted Liens").
Under the Indenture, "Pro Forma EBITDA," for any period, is defined as the
EBITDA (as defined below) of
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the Company and the Restricted Subsidiaries as determined on a consolidated
basis in accordance with generally accepted accounting principles, adjusted to
reflect the acquisition or sale of assets by the Company or any Restricted
Subsidiary during such period. "EBITDA," for any period, is defined as an amount
equal to (i) the sum of (a) consolidated net income of the Company and the
Restricted Subsidiaries for such period, plus (b) the provision for taxes for
such period based on income or profits to the extent such income or profits were
included in computing consolidated net income and any provision for taxes
utilized in computing net loss under clause (a) hereof, plus (c) consolidated
interest expense of the Company and the Restricted Subsidiaries for such period,
plus (d) depreciation for such period on a consolidated basis, plus (e)
amortization of intangibles for such period on a consolidated basis, plus (f)
any other non-cash items reducing consolidated net income for such period, minus
(ii) all non-cash items increasing consolidated net income for such period, all
determined in accordance with generally accepted accounting principles
consistently applied.
Designation of Restricted and Unrestricted Subsidiaries. The Board of
Directors of the Company may designate an Unrestricted Subsidiary as a
Restricted Subsidiary or designate a Restricted Subsidiary as an Unrestricted
Subsidiary at any time; provided, however, that (i) immediately after giving
effect to such designation, there exist no Liens (other than Permitted Liens) on
the property of the Company or any Restricted Subsidiary and (ii) an officers'
certificate with respect to such designation is delivered to the Trustee within
75 days after the end of the fiscal quarter in which such designation is made
(or, in the case of a designation made during the last fiscal quarter of the
Company's fiscal year, within 120 days after the end of such fiscal year), which
officers' certificate shall state the effective date of such designation. (Art.
Six, Sec. 603)
A "Restricted Subsidiary" is defined under the Indenture as (i) any
Subsidiary (as defined below) of the Company existing on and after the date that
the first series of Debt Securities are authenticated under the Indenture (the
"Issue Date") unless such Subsidiary shall have been designated an Unrestricted
Subsidiary as permitted under the Indenture and (ii) an Unrestricted Subsidiary
which is redesignated as a Restricted Subsidiary as permitted under the
Indenture. An "Unrestricted Subsidiary" is defined as (i) any Subsidiary of the
Company in existence on the Issue Date that is not a Restricted Subsidiary, (ii)
any Subsidiary of an Unrestricted Subsidiary and (iii) any Subsidiary of the
Company which is designated after the Issue Date as an Unrestricted Subsidiary
as permitted under the Indenture and not thereafter designated as a Restricted
Subsidiary. A "Subsidiary" is defined as any corporation, partnership, joint
venture, association or other business entity, whether now existing or hereafter
organized or acquired, (a) in the case of a corporation, of which at least 50%
of the total voting power of the Voting Stock is held by the Company or any of
its Subsidiaries and the Company or any of its Subsidiaries has the power to
direct the management, policies and affairs thereof; or (b) in the case of a
partnership, joint venture, association or other business entity, with respect
to which the Company or any of its Subsidiaries has the power to direct or cause
the direction of the management and policies of such entity, by contract or
otherwise, if in accordance with generally accepted accounting principles such
entity is consolidated with the Company for financial statement purposes.
Merger, Consolidation and Sale of Assets
The Indenture provides that the Company shall not merge or consolidate
with, or into, any other entity (other than a merger of a wholly-owned
subsidiary of the Company into the Company) or sell, transfer, assign, lease,
convey or otherwise dispose of all or substantially all of its property or
assets in any one transaction or series of transactions unless (a) the entity
formed by or surviving any such consolidation or merger (if the Company is not
the surviving entity) or the Person to which such sale, transfer, assignment,
lease or conveyance is made (the "Surviving Entity") shall be a corporation
organized and existing under the laws of the United States or a State thereof or
the District of Columbia and such corporation expressly assumes, by supplemental
indenture in form satisfactory to the Trustee, executed and delivered to the
Trustee by such corporation, the due and punctual payment of the principal of,
premium, if any, and interest on all the Debt Securities according to their
tenor, and the due and punctual performance and observance of all the covenants
and conditions of the Indenture to be performed by the Company; (b) in the case
of a sale, transfer, assignment, lease, conveyance or other disposition of all
or substantially all of the Company's property or assets, such property or
assets shall have been transferred as an entirety or virtually as an entirety to
one Person; and (c) immediately before and after giving effect to such
transaction or series of transactions, no Default or
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Event of Default shall have occurred and be continuing. (Art. Eleven, Sec. 1101)
In connection with any consolidation merger or transfer, the Company shall
deliver or cause to be delivered to the Trustee, in form and substance
reasonably satisfactory to the Trustee, an officers' certificate and an opinion
of counsel, each stating that such consolidation merger, or transfer and the
supplemental indenture in respect thereto comply with the Indenture and that all
conditions precedent therein provided for relating to such transaction or
transactions have been complied with. (Art. Eleven, Sec. 1101)
Modification of Indenture
Without the consent of any Holders of Debt Securities, the Company and
the Trustee may enter into one or more supplemental indentures for any of the
following purposes:
(a) to evidence the succession of another person to the Company and the
assumption by any such successor of the covenants of the Company in the
Indenture and the Debt Securities pursuant to a consolidation, merger or
conveyance of substantially all of the Company's assets as described above under
"Merger, Consolidation and Sale of Assets;" or
(b) to add to the covenants of the Company for the benefit of the Holders
of all or any series of outstanding Debt Securities or to surrender any right or
power conferred upon the Company by the Indenture; or
(c) to add any additional Events of Default with respect to all or any
series of outstanding Debt Securities; or
(d) to change or eliminate any provision of the Indenture or to add any new
provision to the Indenture; provided that if such change, elimination or
addition will adversely affect the interest of the Holders of Debt Securities of
any series in any material respect such change, elimination or addition will
become effective with respect to such series only when there is no Debt Security
of such series remaining outstanding under the Indenture; or
(e) to provide collateral security for all series of Debt Securities; or
(f) to establish the form or terms of Debt Securities of any series as
permitted by the Indenture; or
(g) to evidence and provide for the acceptance of the appointment of a
successor Trustee under the Indenture with respect to the Debt Securities of one
or more series and to add or change any of the provisions of the Indenture as
shall be necessary to provide for or to facilitate the administration of the
trusts under the Indenture by more than one trustee; or
(h) to provide for the procedures required to permit the utilization of a
non-certificated system of registration for any series of Debt Securities; or
(i) to change any place where (1) the principal of and premium, if any, and
interest, if any, on Debt Securities of any series, or any tranche thereof,
shall be payable, (2) any Debt Securities of any series, or any tranche thereof,
may be surrendered for registration of transfer, (3) Debt Securities of any
series, or any tranche thereof, may be surrendered for exchange and (4) notices
and demands to or upon the Company in respect of the Debt Securities of any
series, or any tranche thereof, and the Indenture may be served, subject to
certain exceptions; or
(j) to cure any ambiguity, defect or inconsistency or to make any other
provisions with respect to matters and questions arising under the Indenture,
provided such provisions shall not adversely affect the
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interests of the Holders of Debt Securities of any series in any material
respect. (Art. Twelve, Sec. 1201)
Defeasance
The Company at any time may terminate all of its obligations under the
Debt Securities of any series and the Indenture with respect to the Debt
Securities of such series ("legal defeasance"), except for certain
obligations, including those respecting the defeasance trust and obligations
to register the transfer or exchange of the Debt Securities of such series, to
replace mutilated, destroyed, lost or stolen Debt Securities of such series
and to maintain a registrar and paying agent in respect of the Debt Securities
of such series by taking the action described below. By taking such action,
the Company at any time may terminate its obligations under the covenants
described above under "Certain Covenants" and the provisions discussed above
in clauses (c), (e), (f) and (g) (in the case of such clause (g), with respect
to Restricted Subsidiaries only) under "Events of Default" ("covenant
defeasance").
The Company may exercise its legal defeasance option with respect to the
Debt Securities of any series notwithstanding its prior exercise of its
covenant defeasance option with respect to the Debt Securities of such series.
If the Company exercises its legal defeasance option with respect to the Debt
Securities of any series, payment of the Debt Securities of such series may
not be accelerated because of the occurrence of an Event of Default with
respect to such Debt Securities. If the Company exercises its covenant
defeasance option with respect to the Debt Securities of any series, payment
of the Debt Securities of such series may not be accelerated because of the
occurrence of an Event of Default specified in clauses (c), (e), (f) or (g)
(in the case of such clause (g), with respect to Restricted Subsidiaries only)
under "Events of Default" above.
In order to exercise either defeasance option with respect to the Debt
Securities of any series, the Company must irrevocably deposit in trust with
the Trustee money or U.S. Obligations (as defined below) sufficient for the
payment of principal and interest on the Debt Securities of such series to
maturity and must comply with certain other conditions, including the delivery
to the Trustee of an opinion of counsel to the effect that Holders of the Debt
Securities of such series will not recognize income, gain or loss for Federal
income tax purposes as a result of such deposit and defeasance and will be
subject to Federal income tax on the same amount and in the same manner and at
the same times as would have been the case if such deposit and defeasance had
not occurred (and, in the case of legal defeasance only, such opinion of
counsel must be based on a ruling of the Internal Revenue Service or other
change in applicable Federal income tax law). (Art. Seven, Sec. 701) "U.S.
Government Obligations" is defined as direct obligations (or certificates
representing an ownership interest in such obligations) of the United States
(including any agency or instrumentality thereof) for the payment of which the
full faith and credit of the United States is pledged and which are not
callable or redeemable at the issuer's option.
Restrictions Under 1996 Indenture and Credit Facility
The 1996 Indenture contains restrictions with respect to the Company and
the Restricted Subsidiaries. Under the 1996 Indenture, during any period of
time that the ratings assigned to the senior notes outstanding thereunder by
two or more of the three Rating Agencies are below Investment Grade Ratings or
withdrawn, the Company and the Restricted Subsidiaries will be restricted from
(a) incurring additional indebtedness, other than certain permitted
indebtedness, unless the ratio of (i) the outstanding indebtedness of the
Company and the Restricted Subsidiaries divided by (ii) the sum of the Pro
Forma EBITDA of the Company and the Restricted Subsidiaries for the most
recent four consecutive fiscal quarters would not exceed 6.5 as a result of
such incurrence; (b) making restricted payments (defined generally as
dividends and distributions, payments to purchase, redeem, acquire or retire
capital stock, warrants, rights or options of the Company or its affiliates
and investments, other than certain permitted investments, in other Persons);
(c) selling assets under certain circumstances; (d) entering into or otherwise
permitting any subsidiary distribution restrictions (defined generally to
include any agreement, encumbrance or restriction on the ability of any
subsidiary to pay dividends, make loans, or transfer property or assets to the
Company or any Restricted Subsidiary); (e) entering into certain transactions
with affiliates; and (f) consummating certain consolidations, mergers and
transfers of assets. The Indenture does not contain similar restrictions with
respect to the Debt Securities.
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The Credit Facility contains additional covenants that, among other
things, restrict the Company and the Restricted Subsidiaries from incurring
additional debt (subject to certain limits on dollar amounts and maturities
and except for intercompany debt, subject to limitations, and debt incurred to
hedge against interest rate risk or foreign exchange fluctuations) and require
the Company to maintain certain maximum debt to EBITDA ratios and minimum
EBITDA to interest ratios.
While these covenants, as well as other covenants contained in the 1996
Indenture and the Credit Facility, are more restrictive than the covenants
contained in the Indenture, the covenants contained in the 1996 Indenture and
the Credit Facility are solely for the benefit of the holders of the senior
notes outstanding under the 1996 Indenture and the lenders under the Credit
Facility, respectively, and are subject to amendment, waiver or consent at the
discretion of such holders and lenders.
Regarding the Trustee
The Company engages in banking transactions in the ordinary course of
business with the Trustee and the Trustee currently serves as trustee under
the 1996 Indenture.
DESCRIPTION OF WARRANTS
The following statements with respect to the Warrants are summaries of,
and subject to, the detailed provisions of a Warrant Agreement (the "Warrant
Agreement") to be entered into by the Company and a warrant agent to be
selected at the time of issue (the "Warrant Agent"), a form of which is filed
as an exhibit to the Registration Statement of which this Prospectus is a
part. Terms used under this heading or in any Prospectus Supplement relating
to the Offered Warrants which are defined under this heading are so defined
solely with reference to the Offered Warrants.
General
The Warrants, evidenced by Warrant certificates (the "Warrant
Certificates"), may be issued under the Warrant Agreement independently or
together with any Debt Securities offered by any Prospectus Supplement and may
be attached to or separate from such Debt Securities. If Warrants are offered,
the applicable Prospectus Supplement will describe the terms of such Offered
Warrants, including the following: (i) the offering price, if any; (ii) the
designation, aggregate principal amount and terms of the Debt Securities
purchasable upon exercise of such Offered Warrants; (iii) if applicable, the
designation and terms of the Debt Securities with which such Offered Warrants
are issued and the number of Offered Warrants issued with each such Debt
Security; (iv) if applicable, the date on and after which such Offered
Warrants and the related Debt Securities will be separately transferable; (v)
the principal amount of Debt Securities purchasable upon exercise of one
Offered Warrant and the price at which such principal amount of Debt
Securities may be purchased upon such exercise; (vi) the date on which the
right to exercise such Offered Warrants shall commence and the date on which
such right shall expire; (vii) Federal income tax consequences, if any; (viii)
whether such Offered Warrants represented by the Warrant Certificates will be
issued in registered or bearer form; and (ix) any other terms of such Offered
Warrants not inconsistent with the provisions of the Warrant Agreement.
Warrant Certificates may be exchanged for new Warrant Certificates of
different denominations and may (if in registered form) be presented for
registration of transfer at the corporate trust office of the Warrant Agent or
any Co-Warrant Agent, which will be listed in the applicable Prospectus
Supplement, or at such other office as may be set forth therein. Warrant
holders do not have any of the rights of Holders of Debt Securities (except to
the extent that the consent of Warrant holders may be required for certain
modifications of the terms of the Indenture and the series of Debt Securities
issuable upon exercise of the Warrants) and are not entitled to payments of
principal of and interest, if any, on such Debt Securities.
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Exercise of Warrants
Warrants may be exercised by surrendering the Warrant Certificate at the
corporate trust office of the Warrant Agent or at the corporate trust office
of the Co-Warrant Agent, if any, with the form of election to purchase on the
reverse side of the Warrant Certificate properly completed and executed, and
by payment in full of the exercise price, as set forth in the applicable
Prospectus Supplement. Upon the exercise of Warrants, the Warrant Agent or Co-
Warrant Agent, if any, will, as soon as practicable, deliver the Debt
Securities in authorized denominations in accordance with the instructions of
the exercising Warrant holder and at the sole cost and risk of such holder. If
less than all of the Warrants evidenced by the Warrant Certificate are
exercised, a new Warrant Certificate will be issued for the remaining amount
of Warrants.
LEGAL OPINIONS
The legality of the Securities offered hereby will be passed upon for the
Company by Kevin C. Gallagher, Esq., Senior Vice President, General Counsel
and Secretary of the Company. At December 31, 1996, Mr. Gallagher was the
beneficial owner of 10,226 shares of Common Stock of the Company.
EXPERTS
The consolidated financial statements, schedule and Selected
Proportionate Operating Results of the Company included in the Company's
Annual Report on Form 10-K for the fiscal year ended December 31, 1995 (the
"1995 Form 10-K") have been audited by Ernst & Young LLP, independent
auditors, as set forth in their report thereon included therein and
incorporated herein by reference which, as to GTE Mobilnet of South Texas
Limited Partnership and New York SMSA Limited Partnership, is based in part on
the reports of other auditors. Such consolidated financial statements,
schedule and Selected Proportionate Operating Results are, and audited
financial statements, schedule and Selected Proportionate Operating Results to
be included in subsequently filed documents will be, incorporated herein by
reference in reliance upon the report of Ernst & Young LLP pertaining to such
financial statements, schedule or Selected Proportionate Operating Results (to
the extent covered by consents of such firm filed with the Commission) given
upon the authority of such firms as experts in accounting and auditing.
The financial statements of Kansas City SMSA Limited Partnership at
December 31, 1995 and 1994 and for each of the three years in the period ended
December 31, 1995 not separately presented in the 1995 Form 10-K have been
audited by Ernst & Young LLP, independent auditors, as set forth in their
report thereon included therein and incorporated herein by reference. Such
financial statements are incorporated herein by reference in reliance upon
such report given upon the authority of such firm as experts in accounting and
auditing.
The financial statements of GTE Mobilnet of South Texas Limited
Partnership at December 31, 1995 and 1994 and for each of the three years in
the period ended December 31, 1995 included in the 1995 Form 10-K and the
financial statements of Independent Cellular Network, Inc. and Affiliates at
December 31, 1995 and 1994 and for each of the three years in the period ended
December 31, 1995 included in the Company's Current Report on Form 8-K dated
November 1, 1996 (the "Form 8-K"), have been audited by Arthur Andersen LLP,
independent public accountants, as set forth in their separate reports thereon
included in the 1995 10-K and the Form 8-K, respectively, and incorporated
herein by reference. Such financial statements are incorporated herein by
reference in reliance upon such reports given upon the authority of such firm
as experts in accounting and auditing.
The financial statements of New York SMSA Limited Partnership and Orlando
SMSA Limited Partnership at December 31, 1995 and 1994 and for each of the
three years in the period ended December 31, 1995 included in the 1995 Form
10-K, have been incorporated herein by reference in reliance on the reports of
Coopers & Lybrand L.L.P., independent accountants, given upon the authority of
such firm as experts in accounting and auditing.
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PLAN OF DISTRIBUTION
The Company may sell Securities through underwriters or dealers, directly
to one or more purchasers or through agents. The applicable Prospectus
Supplement will set forth the terms of the offering of any Securities,
including the names of any underwriters or agents, the purchase price of such
Securities and the proceeds to the Company from such sale, any underwriters'
discounts and other items constituting underwriters' compensation, any initial
public offering price, any discounts or concessions allowed or reallowed or
paid to dealers and any securities exchanges on which such Securities may be
listed.
If underwriters are used in the sale, Securities will be acquired by the
underwriters for their own account and may be resold, from time to time, in
one or more transactions, including negotiated transactions, at a fixed public
offering price or at varying prices determined at the time of sale. Such
Securities may be offered to the public either through underwriting syndicates
represented by managing underwriters or by underwriters without a syndicate.
Unless otherwise set forth in the applicable Prospectus Supplement, the
obligations of the underwriters to purchase such Securities will be subject to
certain conditions precedent, and the underwriters will be obligated to
purchase all of such Securities, if any of such Securities are purchased. Any
initial offering price and any discounts or concessions allowed or reallowed
or paid to dealers may be changed from time to time. Only underwriters named
in a Prospectus Supplement are deemed to be underwriters in connection with
the Securities offered thereby.
Securities may also be sold directly by the Company or through agents
designated by the Company from time to time. Any agent involved in the offer
or sale of Securities will be named, and any commissions payable by the
Company to such agent will be set forth in the applicable Prospectus
Supplement. Unless otherwise indicated in the applicable Prospectus
Supplement, any such agent will act on a best efforts basis for the period of
the appointment.
If so indicated in the applicable Prospectus Supplement, the Company will
authorize agents, underwriters or dealers to solicit offers by certain
specified institutions to purchase Securities at the public offering price set
forth in such Prospectus Supplement pursuant to delayed delivery contracts
providing for payment and delivery on a future date specified in such
Prospectus Supplement. Such contacts will be subject only to those conditions
set forth in the applicable Prospectus Supplement and such Prospectus
Supplement will set forth the commissions payable for solicitation of such
contracts.
Any underwriters, dealers or agents participating in the distribution of
Securities may be deemed to be underwriters and any discounts or commissions
received by them on the sale or resale of Securities may be deemed to be
underwriting discounts and commissions under the Securities Act of 1933, as
amended (the "Securities Act"). Agents and underwriters may be entitled under
agreements entered into with the Company to indemnification by the Company
against certain liabilities, including liabilities under the Securities Act or
to contribution with respect to payments that the agents or underwriters may
be required to make in respect thereof. Agents and underwriters may be
customers of, engage in transactions with, or perform services for, the
Company or its affiliates in the ordinary course of business.
No person has been authorized to give any information or to make any
representations other than those contained or incorporated by reference in
this Prospectus or the accompanying Prospectus Supplement and, if given or
made, such information or representations must not be relied upon as having
been authorized by the Company or by any underwriter, agent or dealer. Neither
the delivery of this Prospectus or the accompanying Prospectus Supplement nor
any sale made hereunder or thereunder shall under any circumstances create an
implication that there has been no change in the affairs of the Company since
the date hereof or thereof or that the information contained herein or therein
is correct at any time subsequent to the date hereof or thereof. This
Prospectus and the accompanying Prospectus Supplement do not constitute an
offer or solicitation by anyone in any jurisdiction in which such offer or
solicitation is not authorized or in which the person making such offer or
solicitation is not qualified to do so or to anyone to whom it is unlawful to
make such offer or solicitation.
16
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The fees and expenses payable by the Company in connection with the
issuance and distribution of the Securities registered hereunder are as
follows:
Securities and Exchange Commission registration fee. . . . . . . . 151,516
Accounting fees and expenses. . . . . . . . . . . . . . . . . . . 66,000*
Printing fees. . . . . . . . . . . . . . . . . . . . . . . . . . . 35,000*
Blue sky fees and expenses. . . . . . . . . . . . . . . . . . . . 12,000*
Trustee's fees and expenses . . . . . . . . . . . . . . . . . . . 10,000*
Legal fees and expenses . . . . . . . . . . . . . . . . . . . . . 65,000*
Rating Agency fees . . . . . . . . . . . . . . . . . . . . . . . . 250,000*
Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . 10,484*
----------
Total fees and expenses . . . . . . . . . . . . . . . . . . . $ 600,000*
----------
- -----------------
*Estimated.
Item 15. Indemnification of Directors and Officers.
(a) Section 145 of the Delaware General Corporation Law ("DGCL") gives
Delaware corporations broad powers to indemnify their present and former
directors and officers and those of affiliated corporations against expenses
incurred in the defense of any lawsuit to which they are made parties by reason
of being or having been such directors or officers, subject to specified
conditions and exclusions, gives a director or officer who successfully defends
an action the right to be so indemnified and authorizes the Company to buy
directors' and officers' liability insurance. Such indemnification is not
exclusive of any other rights to which those indemnified may be entitled under
any bylaws, agreements, vote of stockholders or otherwise.
(b) Article Sixth of the Company's Amended and Restated Certificate of
Incorporation, as amended ("Certificate of Incorporation"), requires the Company
to indemnify officers and directors to the fullest extent permitted by Delaware
law against all liability and loss suffered and expenses reasonably incurred by
such person in connection with any action, suit or proceeding by reason of the
fact that such person is or was serving as a director or officer of the Company
or as a director, officer, trustee or in any other comparable position of
another enterprise at the Company's request; provided that the Company shall not
be required to indemnify or advance expenses to such person in connection with
an action, suit or proceedings initiated by such person unless the initiation of
such action, suit or proceeding was authorized in advance by the Company's Board
of Directors. The indemnification provided by Article Sixth of the Certificate
of Incorporation is not exclusive of any other rights to which those seeking
indemnification may be entitled under any statute, other provision of the
Certificate of Incorporation, the Company's Amended and Restated Bylaws (the
"Bylaws"), or any agreement, vote of stockholders or disinterested directors,
policy of insurance or otherwise, both as to action in their official capacities
and as to action in other capacities while holding their respective offices. In
the event Delaware law is changed to permit broader rights of indemnification,
the Certificate of Incorporation will automatically authorize the Company to
indemnify such persons to the fullest extent permitted by such law, as so
changed, without the need for any further action by the Company's directors or
stockholders.
(c) In accordance with Section 102(b)(7) of the DGCL, the Certificate of
Incorporation provides
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that directors shall not be personally liable for monetary damages for
breaches of their fiduciary duty as directors except for (1) breaches of their
duty of loyalty to the Company or its stockholders; (2) acts or omissions not in
good faith or which involve intentional misconduct or knowing violations of law;
(3) under Section 174 of the DGCL (unlawful payment of dividends); or (4)
transactions from which a director derives an improper personal benefit.
(d) Section 10 of the Bylaws requires the Company to indemnify any person
who is a party or is threatened to be made a party to any action, suit or
proceeding by reason of the fact that such person is or was a director, officer,
employee or agent of the Company, or is serving as a director, officer, employee
or agent of another enterprise at the Company's request; provided that such
person acted in good faith and in a manner such person reasonably believed to be
in or not opposed to the Company's best interests, and with respect to any
criminal action or proceeding, that such person had no reasonable cause to
believe such person's conduct was unlawful. Such Section 10 further provides
that the Company shall not indemnify any person for any liabilities or expenses
incurred by such person in connection with an action, suit or proceeding by or
in the right of the Company in respect of any claim, issue or matter as to which
such person shall have been adjudged to be liable to the Company, unless and
only to the extent that the court in which the action, suit or proceeding is
brought determines that the person is entitled to indemnity for such expenses.
The indemnification provided by Section 10 of the Bylaws is not exclusive of any
other rights to which those seeking indemnification may be entitled under any
statute, other provision of the Bylaws, Certificate of Incorporation, or any
agreement, vote of stockholders or disinterested directors, policy of insurance
or otherwise, both as to action in their official capacities and as to action in
other capacities while holding their respective offices.
(e) The Company has entered into indemnification agreements with each of
its directors and officers providing for indemnification of each such
person to the fullest extent allowed by law. The Company is required
by such indemnification agreements to advance litigation and related
expenses to the indemnified persons, subject to their undertaking to
repay such amounts if it is ultimately determined that they are not
entitled to be indemnified by the Company thereunder or otherwise.
(f) The Company maintains directors' and officers' liability insurance
covering such persons in their official capacities with the Company and its
subsidiaries.
Item 16. Exhibits.
1.1 Form of Underwriting Agreement and/or Distribution Agreement, as
applicable (to be filed under cover of Form 8-K).
2.1 Distribution Agreement dated as of March 7, 1996 by and among Sprint
Corporation, 360 Communications Company (formerly Sprint Cellular
Company) and Centel Corporation.*
2.2 Exchange and Merger Agreement, dated as of May 31, 1996 by and among
Independent Cellular Network Partners, James A. Dwyer, Jr., David
Winstel, CC Industries, Inc., Ohio Cellular RSA, L.P., Ohio RSA
Corporation, Quality Cellular Communications of Ohio, Inc., Cellular
Plus, L.P., C-Plus, Inc., Quality Cellular Plus Communications, Inc.,
Henry Crown and Company (Not Incorporated) and 360 Communications
Company. (Filed as Exhibit 2.2 in the Company's Quarterly Report on
Form 10-Q for the quarterly period ended June 30, 1996, File No.
1-14108, and incorporated herein by reference.)*
2.3 First Amendment to Exchange and Merger Agreement, dated as of November
1, 1996, by and among Independent Cellular Network Partners, James A.
Dwyer, Jr., David Winstel, CC Industries, Inc., Ohio Cellular RSA,
L.P., Ohio RSA Corporation, Quality Cellular Communications of Ohio,
Inc., Cellular Plus, L.P., C-Plus, Inc., Quality Cellular Plus
Communications, Inc., Henry Crown and Company (Not
II-2
<PAGE>
Incorporated) and 360 Communications Company. (Filed as Exhibit 2.3 to
the Company's Current Report on Form 8-K dated November 1, 1996, File
No. 1-14108, and incorporated herein by reference.)*
3.1 Amended and Restated Certificate of Incorporation of 360
Communications Company, as amended as of March 4, 1996. (Filed as
Exhibit 3.1 to the Company's Annual Report on Form 10-K for the fiscal
year ended December 31, 1995; File No. 1-14108, and incorporated
herein by reference.)*
3.2 Amended and Restated Bylaws of 360 Communications Company. (Filed as
Exhibit 3.2 to the Company's Annual Report on Form 10-K for the fiscal
year ended December 31, 1995, File No. 1-14108, and incorporated
herein by reference.)*
3.3 Certificate of Designation of First Series Junior Participating
Preferred Stock of 360 Communications Company. (Filed as Exhibit 3.3
to Amendment No. 4 to Registration Statement No. 33-99756 and
incorporated herein by reference.)*
4.1 360 Communications Company's 7 1/8% Senior Note Due 2003 and 7 1/2%
Senior Note Due 2006. (Filed as Exhibit 4.1 to the Company's Annual
Report on Form 10-K for the fiscal year ended December 31, 1995, File
No. 1-14108, and incorporated herein by reference.)*
4.2 Indenture dated as of March 7, 1996 between 360 Communications Company
and Citibank, N.A., as Trustee. (Filed as Exhibit 4.2 to the Company's
Annual Report on Form 10-K for the fiscal year ended December 31,
1995, File No. 1-14108, and incorporated herein by reference.)*
4.3 Form of 360 Communications Company Common Stock, $0.01 par value,
certificate. (Filed as Exhibit 4.3 to the Company's Annual Report on
Form 10-K for the fiscal year ended December 31, 1995, File No. 1-
14108, and incorporated herein by reference.)*
4.4 Rights Agreement dated as of March 5, 1996 between 360 Communications
Company and Chemical Bank. (Filed as Exhibit 10.3 to the Company's
Annual Report on Form 10-K for the fiscal year ended December 31,
1995, File No. 1-14108, and incorporated herein by reference.)*
4.5 Form of 360 Communications Company's Subordinated Non-Negotiable
Promissory Note (included in Exhibit 2.2 to the Company's Quarterly
Report on Form 10-Q for the quarterly period ended June 30, 1996, File
No. 1-14108, and incorporated herein by reference).*
4.6 Form of Indenture between 360 Communications Company and Citibank,
N.A., as Trustee, relating to the Debt Securities.
4.7 Form of Debt Security.
4.8 Form of Warrant Agreement.*
4.9 Form of Warrant (contained in Exhibit 4.8).*
5.1 Opinion of Kevin C. Gallagher, Esq., Senior Vice President, General
Counsel and Secretary.*
12 Statement regarding computation of Ratio of Earnings to Fixed
Charges.*
23.1 Consent of Ernst & Young LLP.*
23.2 Consent of Ernst & Young LLP, regarding the Kansas City SMSA Limited
Partnership.*
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<PAGE>
23.3 Consent of Arthur Andersen LLP, regarding GTE Mobilnet of South Texas
Limited Partnership.*
23.4 Consent of Arthur Andersen LLP, regarding Independent Cellular
Network, Inc. and Affiliates.*
23.5 Consent of Coopers & Lybrand L.L.P., regarding New York SMSA Limited
Partnership.*
23.6 Consent of Coopers & Lybrand L.L.P., regarding Orlando SMSA Limited
Partnership.*
23.7 Consent of Kevin C. Gallagher, Esq. (contained in Exhibit 5.1).*
24.1 Power of Attorney.*
25.1 Statement of Eligibility and Qualification of Citibank, N.A. on Form
T-1 relating to the Debt Securities.*
- ---------------
*Previously filed.
Item 17. Undertakings.
The undersigned Registrant hereby undertakes:
(1) To file during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement;
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933, as amended (the "Act");
(ii) To reflect in the prospectus any facts or events arising
after the effective date of this Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in this Registration
Statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in this Registration Statement or
any material change to such information in this Registration Statement;
provided, however, that the undertakings set forth in paragraphs (1) (i) and
(ii) above do not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic reports
filed by the Registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), that are
incorporated by reference in this Registration Statement.
(2) That, for the purpose of determining any liability under the Act,
each such post-effective amendment 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.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
(4) That, for the purposes of determining any liability under the Act,
the information omitted from the form of prospectus filed as part of this
Registration Statement in reliance upon Rule 430A and contained in a form of
prospectus filed by the Registrant pursuant to Rule 424(b)(1) or (4) or 497(h)
under the Act shall be deemed to be part of this Registration Statement as of
the time it was declared effective.
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<PAGE>
(5) That, for the purpose of determining any liability under the Act,
each post-effective amendment that contains a form of prospectus shall be deemed
to be a new registration statement relating to the securities offered therein
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
The undersigned Registrant hereby undertakes that, for the purposes of
determining any liability under the Act, each filing of the Registrant's annual
report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and,
where applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference
in this Registration Statement shall be deemed to be a new registration
statement relating to the securities offered therein and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
Insofar as indemnification for liabilities arising under the Act may be
permitted to directors, officers and controlling persons of the Registrant
pursuant to the provisions described in Item 15 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 Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than payment by the Registrant of expenses incurred or
paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the act and will be governed by the final adjudication of
such issue.
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<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3 and has duly caused this Amendment to
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in Chicago, Illinois on the 12th day of February, 1997.
360 COMMUNICATIONS COMPANY
/s/ Kevin C. Gallagher
By:
Kevin C. Gallagher
Senior Vice President,
General Counsel and Secretary
Pursuant to the requirements of the Securities Act of 1933, this
Amendment to Registration Statement has been signed by the following persons in
the capacities and on the dates indicated:
Signature Title Date
*
President and Chief Executive February 12, 1997
Dennis E. Foster Officer and Director
(Principal Executive Officer)
*
Executive Vice President and February 12, 1997
Michael J. Small Chief Financial Officer
(Principal Financial Officer)
*
Senior Vice President - Finance February 12, 1997
Gary L. Burge (Principal Accounting Officer)
*
Chairman of the Board February 12, 1997
Frank E. Reed of Directors
*
Director February 12, 1997
Lester Crown
*
Director February 12, 1997
Michael Hooker
*
Director February 12, 1997
Robert E. R. Huntley
*
Director February 12, 1997
Valerie B. Jarrett
*
Director February 12, 1997
Alice M. Peterson
*
Director February 12, 1997
Charles H. Price, II
*By:/s/ Kevin C. Gallagher
Kevin C. Gallagher
As Attorney-in-Fact
- --------------------------------------------------------------------------------
360 COMMUNICATIONS COMPANY
TO
CITIBANK, N.A., Trustee
- --------------------------------------------------------------------------------
Indenture
- --------------------------------------------------------------------------------
Dated as of [ ], 1997
Debt Securities
- --------------------------------------------------------------------------------
<PAGE>
TABLE OF CONTENTS
PARTIES.......................................................................1
RECITAL OF THE COMPANY........................................................1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF
GENERAL APPLICATION
Section 101. DEFINITIONS......................................................1
Act..............................................................1
Affiliate........................................................1
Asset Sale.......................................................2
Attributable Indebtedness........................................2
Authenticating Agent.............................................2
Board of Directors...............................................2
Board Resolution.................................................2
Business Day.....................................................3
Capital Lease Obligations........................................3
Capital Stock....................................................3
Change of Control................................................3
Change of Control Offer..........................................4
Change of Control Payment Date...................................4
Change of Control Purchase Price.................................4
Change of Control Triggering Effect..............................4
Commission.......................................................4
Company..........................................................4
Company Request..................................................4
Consolidated Interest Expense....................................4
Consolidated Net Income..........................................4
Corporate Trust Office...........................................5
Corporation......................................................5
covenant defeasance option.......................................5
Currency Agreement...............................................5
Credit Facility..................................................5
Default..........................................................6
Defaulted Interest...............................................6
Depository.......................................................6
Discount Security................................................6
Dollar...........................................................6
EBITDA...........................................................6
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Event of Default.................................................6
Exchange Act.....................................................6
Fair Market Value................................................7
GAAP.............................................................7
Guarantee........................................................7
Holder...........................................................7
Incur............................................................7
Indebtedness.....................................................7
Indenture........................................................8
Interest.........................................................8
Interest Payment Date............................................8
Interest Rate Agreement..........................................8
Investment.......................................................8
Investment Grade Rating..........................................8
Issue Date.......................................................9
legal defeasance option..........................................9
Lien.............................................................9
LTM Pro Forma EBITDA.............................................9
Maturity.........................................................9
1996 Indenture...................................................9
Officer..........................................................9
Officers' Certificate............................................9
Opinion of Counsel...............................................9
Outstanding......................................................9
Paying Agent....................................................11
Periodic Offering...............................................11
Permitted Liens.................................................11
Person..........................................................12
Place of Payment................................................12
Predecessor Security............................................12
Preferred Stock.................................................12
Pricing Committee...............................................13
Pro Forma EBITDA................................................13
Property........................................................13
Rating Agencies.................................................13
Rating Date.....................................................13
Rating Decline..................................................13
Redeemable Dividend.............................................14
Redeemable Stock................................................14
Redemption Date.................................................14
Redemption Price................................................14
Regular Record Date.............................................14
Required Currency...............................................14
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Responsible Officer.............................................14
Restricted Subsidiary...........................................14
Sale and Leaseback Transaction..................................14
Securities......................................................15
Securities Act..................................................15
Security Register...............................................15
Senior Indebtedness.............................................15
Special Record Date.............................................15
Stated Maturity.................................................15
Subsidiary......................................................15
Temporary Cash Investments......................................15
Tranche.........................................................16
Trustee.........................................................16
Trust Indenture Act.............................................16
U.S. Government Obligations.....................................16
United States...................................................16
Unrestricted Subsidiary.........................................16
Voting Stock....................................................16
Wholly Owned Subsidiary.........................................17
Section 102. Compliance Certificates and Opinions............................17
Section 103. Form of Documents Delivered to Trustee..........................17
Section 104. Acts of Holders.................................................18
Section 105. Notices, Etc. to Trustee and Company............................19
Section 106. Notice to Holders of Securities; Waiver.........................20
Section 107. Conflict with Trust Indenture Act...............................20
Section 108. Effect of Headings and Table of Contents........................20
Section 109. Successors and Assigns..........................................21
Section 110. Separability Clause.............................................21
Section 111. Benefits of Indenture...........................................21
Section 112. Governing Law...................................................21
Section 113. Legal Holidays..................................................21
ARTICLE TWO
SECURITY FORMS
Section 201. Forms Generally.................................................22
Section 202. Form of Trustees' Certificate of Authentication.................22
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ARTICLE THREE
THE SECURITIES
Section 301. Amount Unlimited; Issuable in Series............................23
Section 302. Denominations...................................................25
Section 303. Execution, Authentication, Delivery and Dating..................26
Section 304. Temporary Securities............................................29
Section 305. Registration, Registration of Transfer and Exchange.............30
Section 306. Mutilated, Destroyed, Lost and Stolen Securities................31
Section 307. Payment of Interest; Interest Rights Preserved..................31
Section 308. Persons Deemed Owners...........................................33
Section 309. Cancellation....................................................33
Section 310. Computation of Interest.........................................33
Section 311. Payment to Be in Proper Currency................................33
Section 312. CUSIP Numbers...................................................34
ARTICLE FOUR
REDEMPTION OF SECURITIES
Section 401. Applicability of Article........................................34
Section 402. Election to Redeem; Notice to Trustee...........................34
Section 403. Selection of Securities to Be Redeemed..........................34
Section 404. Notice of Redemption............................................35
Section 405. Securities Payable On Redemption Date...........................36
Section 406. Securities Redeemed in Part.....................................36
ARTICLE FIVE
SINKING FUNDS
Section 501. Applicability of Article........................................37
Section 502. Satisfaction of Sinking Fund Payments with Securities...........37
Section 503. Redemption of Securities for Sinking Fund.......................37
ARTICLE SIX
COVENANTS
Section 601. Payment of Principal, Premium and Interest......................38
Section 602. Limitation on Liens.............................................38
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Section 603. Designation of Restricted and Unrestricted Subsidiaries.........39
Section 604. Maintenance of Office or Agency.................................39
Section 605. Money for Securities Payments to Be Held in Trust...............40
Section 606. Statement as to Compliance; Notice of Default...................41
Section 607. Waiver of Certain Covenants.....................................41
ARTICLE SEVEN
SATISFACTION AND DISCHARGE
Section 701. Satisfaction and Discharge of Securities; Defeasance............42
Section 702. Conditions to Defeasance........................................43
Section 703. Application of Trust Money......................................44
Section 704. Repayment to Company............................................44
Section 705. Indemnity for Government Obligations............................44
Section 706. Reinstatement...................................................45
ARTICLE EIGHT
EVENTS OF DEFAULT; REMEDIES
Section 801. Events of Default...............................................45
Section 802. Acceleration of Maturity; Rescission and Annulment..............47
Section 803. Collection of Indebtedness and Suits for Enforcement
by Trustee......................................................48
Section 804. Trustee May File Proofs of Claim................................49
Section 805. Trustee May Enforce Claims Without Possession of
Securities......................................................49
Section 806. Application of Money Collected..................................49
Section 807. Limitation on Suits.............................................51
Section 808. Unconditional Right of Holders to Receive Principal,
Premium and Interest............................................51
Section 809. Restoration of Rights and Remedies..............................52
Section 810. Rights and Remedies Cumulative..................................52
Section 811. Delay or Omission Not Waiver....................................52
Section 812. Control by Holders Of Securities................................52
Section 813. Waiver of Past Defaults.........................................53
Section 814. Undertaking for Costs...........................................53
Section 815. Waiver of Stay or Extension Laws................................53
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ARTICLE NINE
THE TRUSTEE
Section 901. Certain Duties and Responsibilities.............................54
Section 902. Notice of Defaults..............................................55
Section 903. Certain Rights of Trustee.......................................55
Section 904. Not Responsible for Recitals or Issuance of Securities..........57
Section 905. May Hold Securities.............................................57
Section 906. Money Held in Trust.............................................57
Section 907. Compensation and Reimbursement..................................57
Section 908. Disqualification; Conflicting Interests.........................58
Section 909. Corporate Trustee Required; Eligibility.........................59
Section 910. Resignation and Removal; Appointment of Successor...............59
Section 911. Acceptance of Appointment by Successor..........................60
Section 912. Merger, Conversion, Consolidation or Succession
to Business.....................................................62
Section 913. Preferential Collection of Claims Against Company...............62
Section 914. Appointment of Authenticating Agent.............................66
Section 915. Trustee's Application for Instructions from the Company.........68
ARTICLE TEN
RIGHT TO REQUIRE REPURCHASE
Section 1001.Repurchase of Securities at Option of the
Holder upon Change of Control...................................68
Section 1002 Covenant to Comply with Securities Laws
upon Purchase of Securities.....................................68
ARTICLE ELEVEN
MERGER, CONSOLIDATION, AND SALE OF ASSETS
Section 1101.When Company May Merger or Transfer Assets......................70
Section 1102.Successor Corporation Substituted...............................70
ARTICLE TWELVE
SUPPLEMENTAL INDENTURES
Section 1201.Supplemental Indentures Without Consent of Holders.............71
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Section 1202.Supplemental Indentures With Consent of Holders.................73
Section 1203.Execution of Supplemental Indentures............................74
Section 1204.Effect of Supplemental Indentures...............................74
Section 1205.Conformity With Trust Indenture Act.............................75
Section 1206.Reference in Securities to Supplemental Indentures..............75
Section 1207.Modification Without Supplemental Indenture.....................75
ARTICLE THIRTEEN
MEETINGS OF HOLDERS;
ACTION WITHOUT MEETING
Section 1301.Purposes for Which Meetings May Be Called.......................75
Section 1302.Call, Notice and Place of Meetings..............................76
Section 1303.Persons Entitled to Vote at Meetings............................76
Section 1304.Quorum, Action..................................................77
Section 1305.Attendance at Meetings; Determination of Voting Rights;
Conduct and Adjournment of Meetings.............................78
Section 1306.Counting Votes and Recording Action of Meeting..................78
Section 1307.Action Without Meeting..........................................79
ARTICLE FOURTEEN
IMMUNITY OF INCORPORATORS,
STOCKHOLDERS, OFFICERS AND DIRECTORS
Section 1401.Liability Solely Corporate......................................79
ARTICLE FIFTEEN
HOLDERS' LISTS AND REPORTS
BY TRUSTEE AND COMPANY
Section 1501.Company to Furnish Trustee Names and Addresses
of Holders......................................................80
Section 1502.Preservation of Information; Communications to Holders..........80
Section 1503.Reports by Trustee..............................................81
Section 1504.Reports by Company..............................................83
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INDENTURE, dated as of [ ], 1997, between 360 COMMUNICATIONS COMPANY, a
corporation duly organized and existing under the laws of State of Delaware (the
"Company") and CITIBANK, N.A., a New York banking corporation (the "Trustee").
RECITAL OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured senior
debt securities, notes or other evidences of indebtedness (the "Securities"), to
be issued in one or more series as in this Indenture provided; and all other
things necessary to make this Indenture a valid agreement of the Company, in
accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of the Securities or of series
thereof, as follows:
ARTICLE ONE
Definitions and Other Provisions of General Application
Section 101. Definitions.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings assigned to them in
this Article and include the plural as well as the singular;
(b) all other terms used herein which are defined in the Trust Indenture
Act, either directly or by reference therein, have the meanings assigned to them
therein and;
(c) the words "herein", "hereof" and "hereunder" and other words of similar
import refer to this Indenture as a whole and not to any particular Article,
Section or other subdivision.
Certain terms, used principally in Article Nine, are defined in that
Article.
"Act", when used with respect to any Holder of a Security, has the
meaning specified in Section 104.
"Affiliate" of any specified Person means (i) any other Person,
directly or indirectly, controlling or controlled by or under direct or indirect
common control with such specified Person or (ii) any other Person who is a
director or officer (a) of such specified Person, (b) of any
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<PAGE>
Subsidiary of such specified Person or (c) of any Person described in clause (i)
above. For the purposes of this definition, "control" when used with respect to
any Person means the power to direct the management and policies of such Person,
directly or indirectly, whether through the ownership of voting securities, by
contract or otherwise; and the terms "controlling" and "controlled" have
meanings correlative to the foregoing. "Affiliate" shall also mean any
beneficial owner of shares representing 10% or more of the total voting power of
the Voting Stock (on a fully diluted basis) of the Company or of rights or
warrants to purchase such Voting Stock (whether or not currently exercisable)
and any Person who would be an Affiliate of any such beneficial owner pursuant
to the first sentence hereof.
"Asset Sale" means, with respect to any Person, any transfer,
conveyance, sale, lease or other disposition (including, without limitation,
dispositions pursuant to any consolidation or merger or a Sale and Leaseback
Transaction) by such Person or any of its Restricted Subsidiaries in any single
transaction or series of transactions of (a) shares of Capital Stock or other
ownership interests of another Person (including Capital Stock of Unrestricted
Subsidiaries) or (b) any other Property of such Person or any of its Restricted
Subsidiaries; provided, however, that the term "Asset Sale" shall not include:
(i) the sale or transfer of Temporary Cash Investments, inventory, accounts
receivable or other Property in the ordinary course of business; (ii) the
liquidation of Property received in settlement of debts owing to the Company or
any Restricted Subsidiary as a result of foreclosure, perfection or enforcement
of any Lien or debt, which debts were owing to the Company or any Restricted
Subsidiary in the ordinary course of business of the Company or such Restricted
Subsidiary; (iii) when used with respect to the Company, any asset disposition
permitted pursuant to Section 1101 which constitutes a disposition of all or
substantially all of the Company's Property or assets; (iv) the sale or transfer
of any Property by the Company or a Restricted Subsidiary to the Company or a
Restricted Subsidiary; or (v) a disposition with a Fair Market Value and a sale
price of less than $5 million.
"Attributable Indebtedness" means Indebtedness deemed to be incurred in
respect of a Sale and Leaseback Transaction and shall be, at the date of
determination, the present value (discounted at the actual rate of interest and
compounding frequency implicit in such transaction), of the total obligations of
the lessee for 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).
"Authenticating Agent" means any Person or Persons authorized by the
Trustee to act on behalf of the Trustee to authenticate one or more series of
Securities.
"Board of Directors" means either the Board of Directors of the Company
or any duly authorized committee thereof.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
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<PAGE>
"Business Day" when used with respect to a Place of Payment of any
other particular location specified in the Securities or this Indenture, means
any day, other than a Saturday or Sunday, which is not a day on which banking
institutions or trust companies in such Place of Payment or other location are
generally authorized or required by law, regulation or executive order to remain
closed, except as may be otherwise specified as contemplated by Section 301.
"Capital Lease Obligations" means Indebtedness represented by
obligations under a lease that is required to be capitalized for financial
reporting purposes in accordance with GAAP and the amount of such Indebtedness
shall be the capitalized amount of such obligations determined in accordance
with GAAP. For purposes of Section 602, a Capital Lease Obligation shall be
deemed secured by a Lien on the Property being leased.
"Capital Stock" means, with respect to any Person, any and all shares
or other equivalents (however designated) of corporate stock, partnership
interests or any other participation, right, warrant, option or other interest
in the nature of an equity interest in such Person, but excluding any debt
security convertible or exchangeable into such equity interest.
"Change of Control" means the occurrence of any of the following
events: (i) any "person" or "group" (within the meaning of Sections 13(d) and
14(d) of the Exchange Act or any successor provision to either of the foregoing,
including any group acting for the purpose of acquiring, holding or disposing of
securities within the meaning of Rule 13d-5(b)(1) under the Exchange Act;
provided, however, that a group formed solely for the purpose of voting
securities shall not be deemed to be a group for purpose of this definition) is
or becomes the "beneficial owner" (as defined in Rule 13d-3 under the Exchange
Act), directly or indirectly, of 35% or more of the total voting power of the
fully diluted Voting Stock of the Company, (ii) during any period of two
consecutive years, individuals who at the beginning of such period constituted
the Board of Directors of the Company (together with any new directors whose
election by the Board of Directors of the Company or whose nomination for
election by the shareowners of the Company was approved by a vote of 66 2/3% of
the directors of the Company then still in office who were either directors at
the beginning of such period or whose election or nomination for election was
previously so approved) cease for any reason to constitute a majority of the
Board of Directors of the Company then in office, (iii) the Company consolidates
or merges with or into any other Person or any other Person consolidates or
merges with or into the Company, in either case, other than a consolidation or
merger (a) with a Wholly Owned Subsidiary in which all of the Voting Stock of
the Company outstanding immediately prior to the effectiveness thereof is
changed into or exchanged for substantially the same consideration or (b)
pursuant to a transaction in which the outstanding Voting Stock of the Company
is changed into or exchanged for cash, securities or other Property with the
effect that the "beneficial owners" (as such term is used in Section 13(d) of
the Exchange Act) of the outstanding Voting Stock of the Company immediately
prior to such transaction, beneficially own, directly or indirectly, more than
50% of the total voting power of the fully diluted Voting Stock of the surviving
corporation immediately following such transaction or (iv) the Company sells,
conveys, transfers or leases, directly or indirectly, all or substantially all
of its assets to any Person other than a Wholly Owned Subsidiary.
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<PAGE>
"Change of Control Offer" has the meaning specified in 1001(a).
"Change of Control Payment Date" has the meaning specified in Section
1001(b).
"Change of Control Purchase Price" has the meaning specified in Section
1001(a).
"Change of Control Triggering Event" means the occurrence of both a
Change of Control and a Rating Decline with respect to the Securities.
"Commission" means the Securities and Exchange Commission, as from to
time constituted, created under the Exchange Act or, if at any time after the
execution of this Indenture such Commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act, then the body
performing such duties at such time.
"Company" means the Person named as the "Company" in the first
paragraph of this Indenture until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its President or a Vice President, and by
its Treasurer, its Secretary or an Assistant Secretary, and delivered to the
Trustee.
"Consolidated Interest Expense" means, for any Person, for any period,
the amount of interest in respect of Indebtedness (including amortization of
original issue discount, fees payable in connection with financings, including
commitment, availability and similar fees, and amortization of debt issuance
costs, non-cash interest payments on any Indebtedness and the interest portion
of any deferred payment obligation and after taking into account the effect of
elections made under, and the net costs associated with, any Interest Rate
Agreement, however denominated, with respect to such Indebtedness), the amount
of Redeemable Dividends, the amount of Preferred Stock dividends in respect of
all Preferred Stock of Restricted Subsidiaries held by Persons other than the
Company or a Restricted Subsidiary, commissions, discounts and other fees and
charges owed with respect to letters of credit and bankers' acceptance
financing, and the interest component of rentals in respect of any Capital Lease
Obligation or Sale and Leaseback Transaction paid, accrued or scheduled to be
paid or accrued by such Person during such period, determined on a consolidated
basis in accordance with GAAP. For purposes of this definition, interest on a
Capital Lease Obligation or a Sale and Leaseback Transaction shall be deemed to
accrue at an interest rate reasonably determined by such Person to be the rate
of interest implicit in such Capital Lease Obligation or Sale and Leaseback
Transaction in accordance with GAAP consistently applied.
"Consolidated Net Income" means for any period, the net income (loss)
of the Company and its Subsidiaries; provided, however, that there shall not be
included in such Consolidated Net Income (i) any net income (loss) of any Person
if such Person is not a Restricted Subsidiary,
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<PAGE>
except that (a) subject to the limitations contained in (iv) below, the
Company's equity in the net income of any such Person for such period shall be
included in such Consolidated Net Income up to the aggregate amount of cash
actually distributed by such Person during such period to the Company or a
Restricted Subsidiary as a dividend or other distribution (subject, in the case
of a dividend or other distribution to a Restricted Subsidiary, to the
limitations contained in clause (iii) below) and (b) the Company's equity in a
net loss of any such Person (other than an Unrestricted Subsidiary) for such
period shall be included in determining such Consolidated Net Income, (ii) any
net income (loss) of any Person acquired by the Company or a Subsidiary in a
pooling of interests transaction for any period prior to the date of such
acquisition, (iii) any net income (loss) of any Restricted Subsidiary if such
Subsidiary is subject to restrictions, directly or indirectly, on the payment of
dividends or the making of distributions by such Restricted Subsidiary, directly
or indirectly, to the Company, except that (a) subject to the limitations
contained in (iv) below, the Company's equity in the net income of any such
Restricted Subsidiary for such period shall be included in such Consolidated Net
Income up to the aggregate amount of cash that could have been distributed by
such Restricted Subsidiary during such period to the Company or another
Restricted Subsidiary as a dividend (subject, in the case of a dividend to
another Restricted Subsidiary, to the limitation contained in this clause) and
(b) the Company's equity in a net loss of any such Restricted Subsidiary for
such period shall be included in determining such Consolidated Net Income, (iv)
any gain (but not loss) realized upon the sale or other disposition of any
Property, plant or equipment of the Company or its consolidated Subsidiaries
(including pursuant to any Sale and Leaseback Transaction) which is not sold or
otherwise disposed of in the ordinary course of business and any gain (but not
loss) realized upon the sale or other disposition of any Capital Stock of any
Person, (v) any extraordinary gain or loss and (vi) the cumulative effect of a
change in accounting principles.
"Corporate Trust Office" means the office of the Trustee at which at
any particular time its corporate trust business shall be principally
administered, which office at the date of execution of this Indenture is located
at 120 Wall Street, 13th Floor, New York, New York 10043, except that for
purposes of the presentation of Securities for payment or registration of
transfer or exchange, such term means the office or agency of the Trustee at
which at any particular time the corporate agency business of the Trustee shall
be conducted, which office at the date of execution of this Indenture is located
at 111 Wall Street, New York, New York 10043.
"Corporation" means a corporation, association, company/joint stock
company or business trust.
"covenant defeasance option" has the meaning specified in Section
701(b).
"Currency Agreement" means, for any Person, any foreign exchange
contract, currency swap agreement or other similar agreement as to which such
Person is a party or a beneficiary.
"Credit Facility" means the Amended and Restated Credit Agreement dated
as of October 31, 1996 among the Company, the Lenders (as defined therein) and
Citibank, N.A., as
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<PAGE>
Administration Agent, The Chase Manhattan Bank, as Syndication Agent, Bank of
America Illinois, as Syndication Agent, and Toronto Dominion (Texas), Inc., as
Documentation Agent, and any amendments, supplements, modifications, extensions,
revisions, refinancings or replacements thereof by a bank or a syndicate of
banks.
"Default" means, with respect to the Securities of any series, any
event which is, or after notice or the lapse of time or both would become, an
Event of Default with respect to the Securities of such series.
"Defaulted Interest" has the meaning specified in Section 307.
"Depositary" means with respect to Securities of any series, or any
Tranche thereof, issuable and issued in whole or in part in global form, the
Person designated as Depositary by the Company pursuant to Section 301 until a
successor Depositary shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter "Depositary" shall mean or include
each Person who is then a Depositary hereunder, and if at any time there is more
than one such Person, "Depositary", as used with respect to the Securities of
any such series, or any Tranche thereof, shall mean the "Depositary" with
respect to the Securities of that series or Tranche.
"Discount Security" means any Security which provides for an amount
less than the principal amount thereof to be due and payable upon a declaration
of acceleration of the Maturity thereof pursuant to Section 802.
"Dollar" or "$" means a dollar or other equivalent unit in such coin or
currency of the United States of America as at the time shall be legal tender
for the payment of public and private debts.
"EBITDA" means, for any Person, for any period, an amount equal to (A)
the sum of (i) Consolidated Net Income for such period, plus (ii) the provision
for taxes for such period based on income or profits to the extent such income
or profits were included in computing Consolidated Net Income and any provision
for taxes utilized in computing net loss under clause (i) hereof, plus (iii)
Consolidated Interest Expense for such period, plus (iv) depreciation for such
period on a consolidated basis, plus (v) amortization of intangibles for such
period on a consolidated basis, plus (vi) any other non-cash items reducing
Consolidated Net Income for such period, minus (B) all non-cash items increasing
Consolidated Net Income for such period, all for such Person and its
Subsidiaries determined in accordance with GAAP consistently applied, except
that with respect to the Company each of the foregoing items shall be determined
on a consolidated basis with respect to the Company and its Restricted
Subsidiaries only.
"Event of Default" has the meaning specified in Section 801.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
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"Fair Market Value" means with respect to any Property, the price which
could be negotiated in an arm's-length free market transaction, for cash,
between a willing seller and a willing buyer, neither of whom is under undue
pressure or compulsion to complete the transaction. Fair Market Value will be
determined, except as otherwise provided, (i) if such Property or asset has a
Fair Market Value of less than $15 million, by any Officer of the Company or
(ii) if such Property or asset has a Fair Market Value in excess of $15 million,
by a majority of the Board of Directors of the Company and evidenced by a Board
Resolution, dated within 30 days of the relevant transaction.
"GAAP" means United States generally accepted accounting principles as
in effect as of the date of determination, unless stated otherwise.
"Guarantee" means any obligation, contingent or otherwise, of any
Person directly or indirectly guaranteeing any Indebtedness of any Person and
any obligation, direct or indirect, contingent or otherwise, of such Person (i)
to purchase or pay (or advance or supply funds for the purchase or payment of)
such Indebtedness of such Person (whether arising by virtue of partnership
arrangements, or by agreements to keep-well, to purchase assets, goods,
securities or services, to take-or-pay or to maintain financial statement
conditions or otherwise) or (ii) entered into for the purpose of assuring in any
other manner the obligee against loss in respect thereof (in whole or in part);
provided, however, that the term "Guarantee" shall not include endorsements for
collection or deposit in the ordinary course of business. The term "Guarantee"
used as a verb has a corresponding meaning.
"Holder" means a Person in whose name a Security is registered in the
Security Register.
"Incur" means, with respect to any Indebtedness or other obligation of
any Person, to create, issue, incur (by conversion, exchange or otherwise),
extend, assume, Guarantee or become liable in respect of such Indebtedness or
other obligation or the recording, as required pursuant to GAAP or otherwise, of
any such Indebtedness or obligation on the balance sheet of such Person (and
"Incurrence", "Incurred", "Incurrable" and "Incurring" shall have meanings
correlative to the foregoing); provided, however, that a change in GAAP that
results in an obligation of such Person that exists at such time, and is not
theretofore classified as Indebtedness, becoming Indebtedness shall not be
deemed an Incurrence of such Indebtedness.
"Indebtedness" means (without duplication), with respect to any Person,
any indebtedness, secured or unsecured, contingent or otherwise, which is for
borrowed money (whether or not the recourse of the lender is to the whole of the
assets of such Person or only to a portion thereof), or evidenced by bonds,
notes, debentures or similar instruments or representing the balance deferred
and unpaid of the purchase price of any Property (excluding any balances that
constitute customer advance payments and deposits, accounts payable or trade
payables, and other accrued liabilities arising in the ordinary course of
business) if and to the extent any of the foregoing Indebtedness would appear as
a liability upon a balance sheet of such Person prepared in accordance with
GAAP, and shall also include, to the extent not otherwise included (i) any
Capital
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Lease Obligations, (ii) Indebtedness of other Persons secured by a Lien to which
the Property or assets owned or held by such Person is subject, whether or not
the obligation or obligations secured thereby shall have been assumed (the
amount of such Indebtedness being deemed to be the lesser of the value of such
Property or assets or the amount of the Indebtedness so secured), (iii)
Guarantees of Indebtedness of other Persons, (iv) any Redeemable Stock, (v) any
Attributable Indebtedness, (vi) all reimbursement obligations of such Person in
respect of letters of credit, bankers' acceptances or other similar instruments
or credit transactions issued for the account of such Person, (vii) in the case
of the Company, Preferred Stock of its Restricted Subsidiaries and (viii)
obligations of any such Person under any Interest Rate Agreement or Currency
Agreement applicable to any of the foregoing. For purposes of this definition,
the maximum fixed repurchase price of any Redeemable Stock that does not have a
fixed repurchase price shall be calculated in accordance with the terms of such
Redeemable Stock as if such Redeemable Stock were repurchased on any date on
which Indebtedness shall be required to be determined pursuant to this
Indenture; provided, however, that if such Redeemable Stock is not then
permitted to be repurchased, the repurchase price shall be the book value of
such Redeemable Stock. The amount of Indebtedness of any Person at any date
shall be the outstanding balance at such date of all unconditional obligations
as described above and the maximum liability of any other obligations described
in clauses (i) through (viii) above in respect thereof at such date.
"Indenture" means this instrument as originally executed and as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof
and shall include the terms of particular series of Securities established as
contemplated by Section 301.
"Interest", when used with respect to a Discount Security which by its
terms bears interest only after Maturity, means interest payable after Maturity.
"Interest Payment Date", when used with respect to any Security, means
the Stated Maturity of an installment of interest on such Security.
"Interest Rate Agreement" means, for any Person, any interest rate swap
agreement, interest rate cap agreement, interest rate collar agreement or other
similar agreement.
"Investment" by any Person means any direct or indirect loan, advance
or other extension of credit or capital contribution (by means of transfers of
cash or other Property to others or payments for Property or services for the
account or use of others, or otherwise) to, or Incurrence of a Guarantee of any
obligation of, or purchase or acquisition of Capital Stock, bonds, notes,
debentures or other securities or evidence of Indebtedness issued by, any other
Person. In determining the amount of any Investment in respect of any Property
or assets other than cash, such Property or asset shall be valued at its Fair
Market Value at the time of such Investment.
"Investment Grade Rating" means a rating equal to or higher than Baa3
(or the equivalent) by Moody's Investors Service, Inc. (or any successor to the
rating agency business thereof), BBB-
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(or the equivalent) by Standard & Poor's Ratings Group (or any successor to the
rating agency business thereof) and BBB- (or the equivalent) by Duff & Phelps
Credit Rating Co. (or any successor to the rating agency business thereof).
"Issue Date" means the date on which the first series of Securities are
authenticated pursuant to Section 303.
"legal defeasance option" has the meaning specified in Section 701(b).
"Lien" means, with respect to any Property of any Person, any mortgage
or deed of trust, pledge, hypothecation, assignment, deposit arrangement,
security interest, lien, charge, easement (other than any easement not
materially impairing usefulness or marketability), encumbrance, preference,
priority, or other security agreement or preferential arrangement of any kind or
nature whatsoever on or with respect to such Property (including any Capital
Lease Obligation, conditional sale or other title retention agreement having
substantially the same economic effect as any of the foregoing or any Sale and
Leaseback Transaction).
"LTM Pro Forma EBITDA" means, with respect to any Person, the product
of such Person's Pro Forma EBITDA for the most recent four consecutive fiscal
quarters for which financial statements are available.
"Maturity", when used with respect to any Security, means the date on
which the principal of such Security or an installation of principal becomes due
and payable as therein or herein provided, whether at the Stated Maturity, by
declaration of acceleration, upon call for redemption or otherwise.
"1996 Indenture" means the Indenture dated as of March 7, 1996 between
the Company and Citibank, N.A., as Trustee, as amended, supplemented or
otherwise modified from time to time in accordance with its terms.
"Officer" means the President, the Chief Financial Officer, the Senior
Vice President - Finance, the Treasurer or the General Counsel of the Company.
"Officers' Certificate" means a certificate signed by two Officers, at
least one of whom shall be the principal executive officer, principal accounting
officer or principal financial officer of the Company, and delivered to the
Trustee; provided, however, that for purposes of Section 301, "Officers'
Certificate" shall mean a certificate executed by the Pricing Committee.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Company, and who shall be acceptable to the Trustee.
"Outstanding", when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
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(a) Securities theretofore canceled by the Trustee or delivered to the
Trustee for cancellation;
(b) Securities deemed to have been paid in accordance with Section 701; and
(c) Securities which have been paid pursuant to Section 306 or in exchange
for or in lieu of which other Securities have been authenticated and delivered
pursuant to this Indenture, other than any such Securities in respect of which
there shall have been presented to the Trustee proof satisfactory to it and the
Company that such Securities are held by a bona fide purchaser in whose hands
such Securities are valid obligations of the Company;
provided, however, that in determining whether or not the Holders of the
requisite principal amount of the Securities Outstanding under this Indenture,
or the Outstanding Securities of any series or Tranche, have given any request,
demand, authorization, direction, notice, consent or waiver hereunder or whether
or not a quorum is present at a meeting of Holders of Securities,
(x) Securities owned by the Company or any other obligor upon the
Securities or any Affiliate of the Company or of such other obligor (unless the
Company, such Affiliate or such obligor owns all Securities Outstanding under
this Indenture, or all Outstanding Securities of each such series and each such
Tranche, as the case may be, determined without regard to this clause (x)) shall
be disregarded and deemed not to be Outstanding, except that, in determining
whether the Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver or upon any such
determination as to the presence of a quorum, only Securities which the Trustee
knows to be so owned shall be so disregarded; provided, however, that Securities
so owned which have been pledged in good faith may be regarded as Outstanding if
the pledgee establishes to the satisfaction of the Trustee the pledgee's right
so to act with respect to such Securities and that the pledgee is not the
Company or any other obligor upon the Securities or any Affiliate of the Company
or of such other obligor;
(y) the principal amount of a Discount Security that shall be deemed to be
Outstanding for such purposes shall be the amount of the principal thereof that
would be due and payable as of the date of such determination upon a declaration
of acceleration of the Maturity thereof pursuant to Section 802; and
(z) the principal amount of any Security which is denominated in a currency
other than United States Dollars or in a composite currency that shall be deemed
to be Outstanding for such purposes shall be the amount of United States Dollars
which could have been purchased by the principal amount (or, in the case of a
Discount Security, the United States Dollar equivalent on the date determined as
set forth below of the amount determined as provided in (y) above) of such
currency or composite currently evidenced by such Security, in each such case
certified to the Trustee in an Officers' Certificate based
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(i) on the average of the mean of the buying and selling spot rates
quoted by three banks which are members of the New York Clearing House
Association selected by the Company in effect at 11:00 A.M. (New York
time) in The City of New York on the fifth Business Day preceding any
such determination or (ii) if on such fifth Business Day it shall not
be possible or practicable to obtain such quotations from such three
banks, on such other quotations or alternative methods of determination
which shall be as consistent as practicable with the method set forth
in (i) above.
"Paying Agent" means any Person, including the Company, authorized by
the Company to pay the principal of, and premium, if any, or interest, if any,
on any Securities on behalf of the Company.
"Periodic Offering" means an offering of Securities of a series from
time to time the specific terms of which Securities, including without
limitation the rate or rates of interest, if any, thereon, the Stated Maturity
or Maturities thereof and the redemption provision, if any, with respect
thereto, are to be determined by the Company or its agents upon the issuance of
such Securities.
"Permitted Liens" means (i) Liens Incurred by the Company or any
Restricted Subsidiary if, after giving effect to such Incurrence on a pro forma
basis, the amount of the total Indebtedness of the Company and the Restricted
Subsidiaries that is secured by a Lien does not exceed 15% of the product of the
LTM Pro Forma EBITDA of the Company multiplied by 6.5; (ii) Liens on the
Property of the Company or any Restricted Subsidiary existing on March 7, 1996;
(iii) Liens on the Property of the Company or any Restricted Subsidiary to
secure any extension, renewal, refinancing, replacement or refunding (or
successive extensions, renewals, refinancings, replacements or refundings), in
whole or in part, of any Indebtedness secured by Liens referred to in any of
clauses (i), (ii), (viii) or (xi); provided, however, that any such Lien will be
limited to all or part of the same Property that secured the original Lien (plus
improvements on such Property) and the aggregate principal amount of
Indebtedness that is secured by such Lien will not be increased to an amount
greater than the sum of (A) the outstanding principal amount, or, if greater,
the committed amount, of the Indebtedness secured by Liens described under
clauses (i), (ii), (viii) and (xi) at the time the original Lien became a
Permitted Lien under this Indenture and (B) an amount necessary to pay any
premiums, fees and other expenses Incurred by the Company in connection with
such refinancing, refunding, extension, renewal or replacement; (iv) Liens for
taxes, assessments or governmental charges or levies on the Property of the
Company or any Restricted Subsidiary if the same shall not at the time be
delinquent or thereafter can be paid without penalty, or are being contested in
good faith and by appropriate proceedings; (v) Liens imposed by law, such as
carriers', warehousemen's and mechanics' Liens and other similar Liens on the
Property of the Company or any Restricted Subsidiary arising in the ordinary
course of business which secure payment of obligations not more than 60 days
past due or are being contested in good faith and by appropriate proceedings;
(vi) Liens on the Property of the Company or any Restricted Subsidiary Incurred
in the ordinary course of business to secure performance of obligations with
respect to statutory or regulatory requirements, performance or return-of-money
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bonds, surety bonds or other obligations of a like nature and Incurred in a
manner consistent with industry practice; (vii) Liens Incurred to secure appeal
bonds and judgment and attachment Liens, in each case in connection with
litigation or legal proceedings which are being contested in good faith by
appropriate proceedings so long as reserves have been established to the extent
required by GAAP as in effect at such time and so long as such Liens do not
encumber assets by an amount in excess of $25 million; (viii) Liens on Property
at the time the Company or any Restricted Subsidiary acquired or constructed
such Property, including any acquisition by means of a merger or consolidation
with or into the Company or such Restricted Subsidiary; (ix) other Liens on the
Property of the Company or any Restricted Subsidiary incidental to the conduct
of their respective businesses or the ownership of their respective Properties
which were not created in connection with the Incurrence of Indebtedness or the
obtaining of advances or credit and which do not in the aggregate materially
detract from the value of their respective Properties or materially impair the
use thereof in the operation of their respective businesses; (x) pledges or
deposits by the Company or any Restricted Subsidiary under workmen's
compensation laws, unemployment insurance laws or similar legislation, or good
faith deposits in connection with bids, tenders, contracts (other than for the
payment of Indebtedness) or leases to which the Company or any Restricted
Subsidiary is party, or deposits to secure public or statutory obligations of
the Company or any Restricted Subsidiary, or deposits for the payment of rent,
in each case Incurred in the ordinary course of business, (xi) Liens on the
Property of a Person at the time such Person becomes a Restricted Subsidiary;
provided, however, that any such Lien may not extend to any other Property of
the Company or any other Restricted Subsidiary which is not a direct Subsidiary
of such Person; provided further, however, that any such Lien was not Incurred
in anticipation of or in connection with the transaction or series of related
transactions pursuant to which such Person became a Restricted Subsidiary, (xii)
utility easements, building restrictions and such other encumbrances or charges
against real Property as are of a nature generally existing with respect to
Properties of a similar character, or (xiii) Liens created pursuant to Section
907.
"Person" means any individual, corporation, company (including any
limited liability company), partnership, joint venture, trust, unincorporated
organization or government or any agency or political subdivision thereof.
"Place of Payment", when used with respect to the Securities of any
series, means the place or places, specified as contemplated by Section 301, at
which, subject to Section 610, the principal of and premium, if any, and
interest, if any, on the Securities of such series are payable.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"Preferred Stock" means any Capital Stock of a Person, however
designated, which entitles the holder thereof to a preference with respect to
dividends, distributions or liquidation proceeds
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of such Person over the holders of other Capital Stock issued by such Person.
"Pricing Committee" means the Executive Vice President and Chief
Financial Officer of the Company, together with the Senior Vice President
Finance of the Company or the Treasurer of the Company, or any other committee
comprised of officers of the Company duly authorized by the Board of Directors
to establish the terms of any series of Securities.
"Pro Forma EBITDA" means for any Person, for any period, the EBITDA of
such Person as determined on a consolidated basis in accordance with GAAP
consistently applied after giving effect to the following: (i) if, during or
after such period, such Person or any of its Subsidiaries shall have made any
Asset Sale, Pro Forma EBITDA of such Person and its Subsidiaries for such period
shall be reduced by an amount equal to the Pro Forma EBITDA (if positive)
directly attributable to the assets which are the subject of such Asset Sale for
the period or increased by an amount equal to the Pro Forma EBITDA (if negative)
directly attributable thereto for such period and (ii) if, during or after such
period, such Person or any of its Subsidiaries completes an acquisition of any
Person or business which immediately after such acquisition is a Subsidiary of
such Person or whose assets are held directly by such Person or a Subsidiary of
such Person, Pro Forma EBITDA shall be computed so as to give pro forma effect
to the acquisition of such Person or business; provided, however, that, with
respect to the Company, all of the foregoing references to "Subsidiary" or
"Subsidiaries" shall be deemed to refer only to the "Restricted Subsidiaries" of
the Company.
"Property" means, with respect to any Person, any interest of such
Person in any kind of property or asset, whether real, personal or mixed, or
tangible or intangible, including, without limitation, Capital Stock in any
other Person (but excluding Capital Stock or other securities issued by such
first mentioned Person).
"Rating Agencies" mean Standard & Poor's Ratings Group, a division of
McGraw Hill, Inc., Duff & Phelps Credit Rating Co. and Moody's Investors
Service, Inc. or any successor to the respective rating agency businesses
thereof.
"Rating Date" means the date which is 90 days prior to the earlier of
(i) a Change of Control and (ii) public notice of the occurrence of a Change of
Control or of the intention of the Company to effect a Change of Control.
"Rating Decline" means, with respect to the Securities, the occurrence
of the following on, or within 90 days after, the date of public notice of the
occurrence of a Change of Control or of the intention by the Company to effect a
Change of Control (which period shall be extended so long as the rating of such
Securities is under publicly announced consideration for possible downgrade by
any of the Rating Agencies): (a) in the event the Securities are assigned an
Investment Grade Rating by at least two of the three Rating Agencies on the
Rating Date, the rating of the Securities by at least two of the three Rating
Agencies shall be below an Investment Grade Rating; or (b) in the event the
Securities are rated below an Investment Grade Rating by
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at least two of the three Rating Agencies on the Rating Date, the rating of the
Securities by at least two of the three Rating Agencies shall be decreased by
one or more gradations (including gradations within rating categories as well as
between rating categories).
"Redeemable Dividend" means, for any dividend with regard to Redeemable
Stock, the quotient of the dividend divided by the difference between one and
the maximum statutory Federal income tax rate (expressed as a decimal number
between 1 and 0) then applicable to the issuer of such Redeemable Stock.
"Redeemable Stock" means, with respect to any Person, 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) or otherwise (i) matures or is mandatorily
redeemable pursuant to a sinking fund obligation or otherwise, (ii) is
redeemable at the option of the holder thereof, in whole or in part, or (iii) is
convertible or exchangeable for Indebtedness mandatorily or at the option of the
holder thereof.
"Redemption Date", when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price", when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Regular Record Date", for the interest payable on any Interest Payment
Date on the Securities of any series means the date specified for that purpose
as contemplated by Section 301.
"Required Currency" has the meaning specified in Section 311.
"Responsible Officer", when used with respect to the Trustee, means the
chairman or any vice-chairman of the board of directors, the chairman or any
vice-chairman of the executive committee of the board of directors, the chairman
of the trust committee, the president, any vice president, the secretary, any
assistant secretary, the treasurer, any assistant treasurer, the cashier, any
assistant cashier, any trust officer or assistant trust officer, the controller
or any assistant controller 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 of the Trustee to whom such matter is referred because of his
knowledge of and familiarity with the particular subject.
"Restricted Subsidiary" means (i) any Subsidiary of the Company after
the Issue Date unless such Subsidiary shall have been designated an Unrestricted
Subsidiary as permitted pursuant to Section 603 and (ii) an Unrestricted
Subsidiary which is redesignated as a Restricted Subsidiary as permitted
pursuant to Section 603.
"Sale and Leaseback Transaction" means, with respect to any Person, any
direct or indirect arrangement pursuant to which Property is sold or transferred
by such Person or a Restricted
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Subsidiary of such Person and is thereafter leased back from the purchaser or
transferee thereof by such Person or one of its Restricted Subsidiaries.
"Securities" has the meaning stated in the first recital of this
Indenture and more particularly means any securities authenticated and delivered
under this Indenture.
"Securities Act" means the Securities Act of 1933, as amended.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"Senior Indebtedness" means, at any date, any outstanding Indebtedness
of the Company that is pari passu in right of payment with the Securities,
including Indebtedness of the Company outstanding under the 1996 Indenture and
the Credit Facility.
"Senior Notes" means the Company's 7 1/8% Senior Notes Due 2003 and 7
1/2% Senior Notes Due 2006 issued pursuant to the 1996 Indenture.
"Special Record Date" for the payment of any Defaulted Interest on the
Securities of any series means a date fixed by the Trustee pursuant to Section
307.
"Stated Maturity", when used with respect to any Security of any
installment of principal thereof or interest thereon, means the date specified
in such Security as the fixed date on which the principal of such Security or
such installment of principal or interest is due and payable.
"Subsidiary" of any specified Person means any corporation,
partnership, joint venture, association or other business entity, whether now
existing or hereafter organized or acquired, (i) in the case of a corporation,
of which at least 50% of the total voting power of the Voting Stock is held by
such first-named Person or any of its Subsidiaries and such first-named Person
or any of its Subsidiaries has the power to direct the management, policies and
affairs thereof; or (ii) in the case of a partnership, joint venture,
association, or other business entity, with respect to which such first-named
Person or any of its Subsidiaries has the power to direct or cause the direction
of the management and policies of such entity by contract or otherwise if in
accordance with GAAP such entity is consolidated with the first-named Person for
financial statement purposes.
"Temporary Cash Investments" means any of the following: (i) Investments in
U.S. Government Obligations maturing within 90 days of the date of acquisition
thereof, (ii) Investments in time deposit accounts, certificates of deposit and
money market deposits maturing within 90 days of the date of acquisition thereof
issued by a bank or trust company which is organized under the laws of the
United States of America or any state thereof having capital, surplus and
undivided profits aggregating in excess of $500,000,000 and whose long-term debt
is rated "A-3" or higher, "A-" or higher or "A-" or higher according to Moody's
Investors Service, Inc., Standard & Poor's Ratings Group or Duff & Phelps Credit
Rating Co. (or such
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similar equivalent rating by at least one "nationally recognized statistical
rating organization" (as defined in Rule 436 under the Securities Act)),
respectively, (iii) repurchase obligations with a term of not more than 7 days
for underlying securities of the types described in clause (i) entered into with
a bank meeting the qualifications described in clause (ii) above, (iv)
Investments in commercial paper, maturing not more than 90 days after the date
of acquisition, issued by a corporation (other than the Company or an Affiliate
of the Company) organized and in existence under the laws of the United States
of America with a rating at the time as of which any Investment therein is made
of "P-1" (or higher) according to Moody's Investors Service, Inc., "A- 1" (or
higher) according to Standard & Poor's Ratings Group or "A-1" (or higher)
according to Duff & Phelps Credit Rating Co. (or such similar equivalent rating
by at least one "nationally recognized statistical rating organization" (as
defined in Rule 436 under the Securities Act)), and (v) Investments in money
market or mutual funds that invest primarily in Investments of the types
described in clauses (i), (ii), (iii) and (iv).
"Tranche" means a group of Securities which (a) are of the same series
and (b) have identical terms except as to principal amount and/or date of
issuance.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this Indenture until a successor Trustee shall have become such
with respect to one or more series of Securities pursuant to the applicable
provisions of this Indenture, and thereafter "Trustee" shall mean or include
such Person who is then a Trustee hereunder, and if any time there is more than
one such Person, "Trustee" as used with respect to the Securities of any series
shall mean the Trustee with respect to Securities of that series.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended, as in force at the date as of which this Indenture was executed, except
as provided in Section 1205.
"U.S. Government Obligations" means direct obligations (or certificates
representing an ownership interest in such obligations) of the United States of
America (including any agency or instrumentality thereof) for the payment of
which the full faith and credit of the United States of America is pledged and
which are not callable or redeemable at the issuer's option.
"United States" means the United States of America, its territories,
its possessions and other areas subject to its jurisdiction.
"Unrestricted Subsidiary" means (a) any Subsidiary of the Company in
existence on the Issue Date that is not a Restricted Subsidiary, (b) any
Subsidiary of an Unrestricted Subsidiary and (c) any Subsidiary of the Company
which is designated after the Issue Date as an Unrestricted Subsidiary as
permitted pursuant to Section 603 and not thereafter redesignated as a
Restricted Subsidiary as permitted pursuant thereto.
"Voting Stock" of a corporation means all classes of Capital Stock of
such corporation then outstanding and normally entitled to vote in the election
of directors.
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"Wholly Owned Subsidiary" means, at any time, a Restricted Subsidiary
all of the Voting Stock of which (except directors' qualifying shares) is at the
time owned, directly or indirectly, by the Company and its other Wholly Owned
Subsidiaries.
Section 102. Compliance Certificates and Opinions.
Except as otherwise expressly provided in this Indenture, upon any
application or request by the Company to the Trustee to take any action under
any provision of this Indenture, the Company shall, if requested by the Trustee,
furnish to the Trustee an Officers' Certificate stating that all conditions
precedent, if any, provided for in this Indenture relating to the proposed
action have been complied with and an Opinion of Counsel stating that in the
opinion of such counsel all such conditions precedent, if any, have been
complied with, except that in the case of any such application or request as to
which the furnishing of such documents is specifically required by any provision
of this Indenture relating to such particular application or request, no
additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(a) a statement that each individual signing such certificate or opinion
has read such covenant or condition and the definition herein relating thereto;
(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 each such individual, he has made
such examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
compiled with; and
(d) a statement as to whether, in the opinion of each such individual, such
condition or covenant has been compiled with.
Section 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates
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to legal matters, upon a certificate or Opinion of, or representations by,
Counsel, unless such officer knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to the
matters upon which his certificate or opinion is based are erroneous. Any such
certificate or Opinion of Counsel may be based, insofar as it relates to factual
matters, upon a certificate or opinion of, or representations by, an officer or
officers of the Company stating that the information with respect to such
factual matters is in the possession of the Company, unless such counsel knows,
or in the exercise of reasonable care should know, that the certificate or
opinion or representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Section 104. Acts of Holders.
(a) Any request, demand, authorization, direction, notice, consent,
election, waiver or other action provided by this Indenture to be made, given or
taken by Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by an agent duly
appointed in writing or, alternatively, may be embodied in and evidenced by the
record of Holders voting in favor thereof, either in person or by proxies duly
appointed in writing, at any meeting of Holders duly called and held in
accordance with the provisions of Article Thirteen, or a combination of such
instruments and any such record. Except as herein otherwise expressly provided,
such action shall become effective when such instrument or instruments or record
of both are delivered to the Trustee and, where it is hereby expressly required,
to the Company. Such instrument or instruments and any such record (and the
action embodied therein and evidenced thereby) are herein sometimes referred to
as the "Act" of the Holders signing such instrument or instruments and so voting
at any such meeting. Proof of execution of any such instrument or of a writing
appointing any such agent, or of the holding by any Person of a Security, shall
be sufficient for any purpose of this Indenture and (subject to Section 901)
conclusive in favor of the Trustee and the Company, if made in the manner
provided in this Section. The record of any meetings of Holders shall be proved
in the manner provided in Section 1306.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof or may be
proved in any other manner which the Trustee and the Company deem sufficient.
Where such execution is by a signer acting in a capacity other than his
individual capacity, such certificate or affidavit shall also constitute
sufficient proof of his authority.
(c) The principal amount (except as otherwise contemplated in clause
(y) of the proviso to the definition of Outstanding) and serial numbers of
Securities held by any Person, and the date
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of holding the same, shall be proved by the Security Register.
(d) Any request, demand, authorization, direction, notice, consent,
election, waiver or other Act of a Holder shall bind the Holder of any Security
issued upon the registration of transfer thereof or in exchange therefor or in
lieu thereof in respect of anything done, omitted or suffered to be done by the
Trustee or the Company in reliance thereon, whether or not notation of such
action is made upon such Security.
(e) Until such time as written instruments shall have been delivered to
the Trustee with respect to the requisite percentage of principal amount of
Securities for the action contemplated by such instruments, any such instrument
executed and delivered by or on behalf of the Holder may be revoked with respect
to any or all of such Securities by written notice by such Holder or any
subsequent Holder, proven in the manner in which such instrument was proven.
(f) Securities of any series, or any Tranche thereof, authenticated and
delivered after any Act of Holders may, and shall if required by the Trustee,
bear a notation in form approved by the Trustee as to any action taken by such
Act of Holders. If the Company shall so determine, new Securities of any series,
or any Tranche thereof, so modified as to conform, in the opinion of the Trustee
and the Company, to such action may be prepared and executed by the Company and
authenticated and delivered by the Trustee in exchange for Outstanding
Securities of such series or Tranche.
(g) If the Company shall solicit from Holders any request, demand,
authorization, direction, notice, consent, waiver or other Act, the Company may,
at its option, by Board Resolution, fix in advance a record date for the
determination of Holders entitled to give such request, demand, authorization,
direction, notice, consent, waiver or other Act, but the Company shall have no
obligation to do so. If such a record date is fixed, such request, demand,
authorization, direction, notice, consent, waiver or other Act may be given
before or after such record date, but only the Holders of record at the close of
business on the record date shall be deemed to be Holders for the purposes of
determining whether Holders of the requisite proportion of the Outstanding
Securities have authorized or agreed or consented to such request, demand,
authorization, direction, notice, consent, waiver or other Act, and for that
purpose the Outstanding Securities shall be computed as of the record date. If
such a record date is not fixed, such record date shall be the later of 30 days
prior to the first solicitation of such request, demand, authorization,
direction, notice, consent, waiver or other Act or the date of the most recent
list of Holders furnished to the Trustee pursuant to Section 1501 prior to such
solicitation.
Section 105. Notices, Etc. to Trustee and Company.
Any request, demand, authorization, direction, notice, consent,
election, waiver or Act of Holders or other document provided or permitted by
this Indenture to be made upon, given or furnished to, or filed with,
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(a) the Trustee by any Holder or by the Company shall be sufficient for
every purpose hereunder if made, given, furnished or filed in writing to or with
the Trustee at its Corporate Trust Office, Attention: Corporate Trustee
Administration, or
(b) the Company by the Trustee or by any Holder shall be sufficient for
every purpose hereunder (unless otherwise herein expressly provided), if in
writing and mailed, first-class postage prepaid, to the Company addressed to the
attention of its Treasurer, at 8725 W. Higgins Road, Chicago, Illinois
60631-2702, or at any other address previously furnished in writing to the
Trustee by the Company.
Section 106. Notice to Holders of Securities; Waiver.
Except as otherwise expressly provided herein, where this Indenture
provides for notice to Holders of any event, such notice shall be sufficiently
given, and shall be deemed given, to Holders if in writing and mailed,
first-class postage prepaid, to each Holder affected by such event, at the
address of such Holder as it appears in the Security Register, not later than
the latest date, and not earlier than the earliest date, prescribed for the
giving of such Notice.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice to
Holders by mail, then such notification as shall be made with the approval of
the Trustee shall constitute a sufficient notification for every purpose
hereunder. In any case where notice to Holders is given by mail, neither the
failure to mail such notice, nor any defect in any notice so mailed, to any
particular Holder shall affect the sufficiency of such notice with respect to
other Holders.
Any notice required by this Indenture may be waived in writing by the
Person entitled to receive such notice, either before or after the event
otherwise to be specified therein, and such waiver shall be the equivalent of
such notice. Waivers of notice by Holders shall be filed with the Trustee, but
such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such waiver.
Section 107. Conflict with Trust Indenture Act.
If any provision of this Indenture limits, qualifies or conflicts with
another provision hereof which is required to be included in this Indenture by
any of the provisions of the Trust Indenture Act, such required provision shall
control.
Section 108. Effect of Headings and Table of Contents.
The Article and Section headings in this Indenture and the Table of
Contents are for convenience only and shall not affect the construction hereof.
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Section 109. Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether so expressed or not.
Section 110. Separability Clause.
In case any provision in this Indenture or the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
Section 111. Benefits of Indenture.
Nothing in this Indenture or the Securities, express or implied, shall
give to any Person, other than the parties hereto, their successors hereunder
and the Holders, any benefit or any legal or equitable right, remedy or claim
under this Indenture.
Section 112. Governing Law.
This Indenture and the Securities shall be governed by and construed in
accordance with the laws of the State of New York.
Section 113. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date, Change of
Control Payment Date, or Stated Maturity of any Security shall not be a Business
Day at any Place of Payment, then (notwithstanding any other provision of this
Indenture or of the Securities other than a provision in Securities of any
series, or any Tranche thereof, or in the Board Resolution or Officers'
Certificate which establishes the terms of such Securities or Tranche, which
specifically states that such provision shall apply in lieu of this Section)
payment of interest or principal and premium, if any, need not be made at such
Place of Payment on such date, but may be made on the next succeeding Business
Day at such Place of Payment with the same force and effect as if made on the
Interest Payment Date or Redemption Date, Change of Control Payment Date, or at
the Stated Maturity, and, if such payment is made or duly provided for on such
Business Day, that no interest shall accrue on the amount so payable for the
period from and after such Interest Payment Date, Redemption Date, Change of
Control Payment Date, or Stated Maturity, as the case may be, to such Business
Day.
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ARTICLE TWO
Security Forms
Section 201. Forms Generally.
The definitive Securities of each series shall be in substantially the
forms thereof established in Board Resolutions or Officers' Certificates
pursuant to Board Resolutions, or in indentures supplemental hereto, in each
case with such appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Indenture, and may have such
letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with the rules of any
securities exchange or as may, consistently herewith, be determined by the
officers executing such Securities, as evidenced by their execution of the
Securities. If the forms of Securities of any series are established in a Board
Resolution or in an Officers' Certificate pursuant to a Board Resolution, such
Board Resolution and Officers' Certificate, if any, shall be delivered to the
Trustee at or prior to the delivery of the Company Order contemplated by Section
303 for the authentication and delivery of such Securities.
The Securities of each series shall be issuable in registered form
without coupons. The definitive Securities shall be produced in such manner as
shall be determined by the officers executing such Securities, as evidenced by
their execution thereof.
Section 202. Form of Trustees Certificate of Authentication.
The Trustee's certificate of authentication shall be in substantially
the form set forth below:
This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
CITIBANK, N.A., as Trustee
By:
Authorized Signatory
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ARTICLE THREE
The Securities
Section 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be authenticated
and delivered under this Indenture is unlimited. The Securities will be senior
unsecured obligations of the Company, will rank pari passu in right of payment
with all existing and future unsubordinated, unsecured Indebtedness of the
Company, including the Senior Indebtedness, and will be senior in right of
payment to all future subordinated Indebtedness of the Company.
The Securities may be issued in one or more series. Subject to the last
paragraph of this Section, there shall be established in a Board Resolution or
in an Officers' Certificate pursuant to a Board Resolution, or established in
one or more indentures supplemental hereto, the following terms prior the
issuance of Securities of any series:
(a) the title of the Securities of such series (which shall distinguish the
Securities of such series from Securities of all other series);
(b) any limit upon the aggregate principal amount of the Securities of such
series which may be authenticated and delivered under this Indenture (except for
Securities authenticated and delivered upon registration of transfer of, or in
exchange for, or in lieu of, other Securities of the series pursuant to Section
304, 305, 306, 406 or 1206 and, except for any Securities which, pursuant to
Section 303, are deemed never to have been authenticated and delivered
hereunder);
(c) whether the Securities of such series may be issued in whole or in part
in global form and, if so, the identity of the Depositary for such Securities in
global form, and the terms and conditions, if any, upon which interests in such
Securities in global form may be exchanged, in whole or in part, for the
individual Securities represented thereby;
(d) the Person or Persons (without specific identification) to whom
interest on Securities of such series, or any Tranche thereof, shall be payable
on any Interest Payment Date, if other than the Person in whose name that
Security (or one or more Predecessor Securities) is registered at the close of
business on the Regular Record Date for such interest;
(e) the date or dates on which the principal of the Securities of such
series is payable;
(f) the rate or rates at which the Securities of such series, or any
Tranche
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thereof, shall bear interest, if any (including the rate or rates at
which overdue principal, premium or interest shall bear interest, if
any), or any method or methods by which such rate or rates shall be
determined, the date or dates from which such interest shall accrue,
the Interest Payment Dates on which such interest shall be payable and
the Regular Record Date for the interest payable on Securities on any
Interest Payment Date; and the basis of computation of interest, if
other than as provided in Section 310;
(g) the place or places where (1) the principal of and
premium, if any, and interest, if any, on Securities of such series, or
any Tranche thereof, shall be payable, (2) any Securities of such
series, or any Tranche thereof, may be surrendered for registration of
transfer, (3) Securities of such series, or any Tranche thereof, may be
surrendered for exchange and (4) notices and demands to or upon the
Company in respect of the Securities of such series, or any Tranche
thereof, and this Indenture may be served;
(h) the period or periods within which, the price or prices at
which and the terms and conditions upon which the Securities of such
series, or any Tranche thereof, may be redeemed, in whole or in part,
at the option of the Company;
(i) the obligation, if any, of the Company to redeem or
purchase the Securities of such series, or any Tranche thereof,
pursuant to any sinking fund or analogous provisions or at the option
of a Holder thereof (in addition to purchases at the option of a Holder
pursuant to Section 1001) and the period or periods within which, the
price or prices at which and the terms and conditions upon which such
Securities shall be redeemed or purchased, in whole or in part,
pursuant to such obligation;
(j) the denominations in which Securities, if any, of such
series, or any Tranche thereof shall be issuable if other than
denominations of $1,000 and any integral multiple thereof;
(k) if the principal of or premium, if any, or interest, if
any, on the Securities of such series, or any Tranche thereof, are to
be payable, at the election of the Company or a Holder thereof, in a
coin or currency other than that in which the Securities are stated to
be payable, the period or periods within which, and the terms and
conditions upon which, such election may be made;
(l) the currency or currencies, including composite
currencies, in which payment of the principal of and premium, if any,
and interest, if any, on the Securities of such series, or any Tranche
thereof, shall be payable (if other than the currency of the United
States);
(m) if the principal of or premium, if any, or interest, if
any, on the Securities of such series, or any Tranche thereof, are to
be payable, or are to be payable at the election of the Company or a
Holder thereof, in securities or other property, the type and
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amount of such securities or other property, or the method by which such
amount shall be determined, and the period or periods within which, and the
terms and conditions upon which, any such election may be made;
(n) if the amount of payments of principal of or premium, if any, or
interest, if any, on the Securities of such series, or any Tranche thereof, may
be determined with reference to an index, the manner in which such amounts shall
be determined;
(o) if other than the principal amount thereof, the portion of the
principal amount of Securities of such series, or any Tranche thereof, which
shall be payable upon declaration of acceleration of the Maturity thereof
pursuant to Section 802;
(p) any Events of Default, in addition to those specified in Section 801,
with respect to the Securities of such series, and any covenants of the Company
for the benefit of the Holders of the Securities of such series, or any Tranche
thereof, in addition to those set forth in Article Six;
(q) any additional or alternative provisions for the reinstatement of the
Company's Indebtedness in respect of the Securities of such series after the
satisfaction and discharge thereof as provided in Section 701;
(r) if a service charge will be made for the registration of transfer or
exchange of Securities of such series, or any Tranche thereof, the amount or
terms thereof;
(s) any exceptions to Section 113, or variation in the definition of
Business Day, with respect to the Securities of such series, or any Tranche
thereof; and
(t) any other terms of the Securities of such series, or any Tranche
thereof, not inconsistent with the provisions of this Indenture.
If any of the terms of the Securities of a series are established in a
Board Resolution or in an Officers' Certificate pursuant to a Board Resolution,
such Board Resolution and Officers' Certificate, if any, shall be delivered to
the Trustee at or prior to the delivery of the Company Order contemplated by
Section 303 for the authentication and delivery of such Securities. With respect
to Securities of a series subject to a Periodic Offering, such Board Resolution
or Officers' Certificate may provide general terms or parameters for the
Securities of such series and provide either that the specific terms of
particular Securities of such series shall be specified in a Company Order or
that such terms shall be determined by the Company or its agents in accordance
with a Company Order as contemplated by the proviso of the third paragraph of
Section 303.
Section 302. Denominations.
Unless otherwise provided as contemplated by Section 301 with respect to
any series of
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Securities, the Securities of each series shall be issuable in denominations of
$1,000 and any integral multiple thereof.
Section 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by its
Chairman of the Board, its President, one of its Vice Presidents or any other
duly authorized officer, under its corporate seal affixed thereto or reproduced
thereon attested by its Secretary, its Assistant Secretary or any other duly
authorized officer. The signature of any or all of these officers on the
Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Company shall the bind the
Company, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Securities or
did not hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any series executed by the
Company to the Trustee for authentication and delivery, together with a Company
Order for the authentication and delivery; of such Securities, and the Trustee
in accordance with such Company Order shall authenticate and make available for
delivery such Securities; provided, however, that, with respect to Securities of
a series subject to a Periodic Offering, (a) such Company Order may be delivered
by the Company to the Trustee prior to the delivery to the Trustee of such
Securities for authentication and delivery; (b) the Trustee shall authenticate
and make available for delivery Securities of such series for original issue
from time to time, in an aggregate principal amount not exceeding the aggregate
principal amount established for such series, all pursuant to a Company Order or
pursuant to such procedures acceptable to the Trustee as may be specified from
time to time by a Company Order; (c) the maturity date or dates, original issue
date or dates, interest rate or rates and any other terms of Securities of such
series shall be determined by Company Order or pursuant to such procedures; and
(d) if provided for in such procedures, such Company Order may authorize
authentication and delivery pursuant to oral or electronic instructions from the
Company or its duly authorized agent or agents, which oral instructions shall be
promptly confirmed in writing.
In authenticating Securities of any series, and accepting
responsibilities under this Indenture in relation to such Securities, the
Trustee shall be entitled to receive, and (subject to Section 901) shall be
fully protected in relying upon, an Opinion of Counsel stating:
(a) that the forms of such Securities have been duly
authorized by the Company and have been established in conformity with
the provisions of this Indenture;
(b) that the terms of such Securities have been duly
authorized by the Company and have been established in conformity with
the provisions of this Indenture;
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(c) that such Securities, when authenticated and delivered
by the Trustee and issued and delivered by the Company in the manner
and subject to any conditions specified in such Opinion of Counsel,
will have been duly issued under this Indenture, and will constitute
valid and legally binding obligations of the Company, entitled to the
benefits provided by this Indenture, and enforceable in accordance
with their terms, subject, as to enforcement, to laws relating to or
affecting generally the enforcement of creditors' rights, including,
without limitation, bankruptcy and insolvency laws and to general
principles of equity; and
(d) that all laws and requirements in respect of the
execution and delivery by the Company of such Securities have been
complied with;
provided, however, that, with respect to Securities of a series subject to a
Periodic Offering, the Trustee shall be entitled to receive such Opinion of
Counsel only once at or prior to the time of the first authentication of
Securities of such series and that the opinions described in clauses (b) and (c)
above may, alternatively, state, respectively:
(x) that, when the terms of such Securities shall have been
established pursuant to a Company Order or pursuant to such procedures
as may be specified from time to time by a Company Order, all as
contemplated by and in accordance with a Board Resolution or an
Officers' Certificate pursuant to a Board Resolution, as the case may
be, such terms will have been duly authorized by the Company and will
have been established in conformity with the provisions of this
Indenture; and
(y) that such Securities, when (1) executed by the Company,
(2) authenticated and delivered by the Trustee in accordance with this
Indenture, (3) issued and delivered by the Company and (4) paid for,
all as contemplated by and in accordance with the aforesaid Company
Order or specified procedures, as the case may be, will have been duly
issued under this Indenture and will constitute valid and legally
binding obligations of the Company, entitled to the benefits provided
by the Indenture, and enforceable in accordance with their terms,
subject, as to enforcement, to laws relating to or affecting generally
the enforcement of creditors' rights, including, without limitation,
bankruptcy and insolvency laws and to general principles of equity.
With respect to Securities of a series subject to a Periodic Offering,
the Trustee may conclusively rely, as to the authorization by the Company of any
of such Securities, the form and terms thereof and the legality, validity,
binding effect and enforceability thereof, upon the Opinion of Counsel and other
documents delivered pursuant to Sections 201 and 301 and this Section, as
applicable, at or prior to the time of the first authentication of Securities of
such series unless and until such opinion or other documents have been
superseded or revoked. In connection with the authentication and delivery of
Securities of a series subject to a Periodic Offering, the Trustee shall be
entitled to assume that the Company's instructions to authenticate and deliver
such Securities do not violate any rules, regulations or orders of any
governmental agency or
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commission having jurisdiction over the Company.
If the form or terms of the Securities of any series have been
established by or pursuant to a Board of Resolution as permitted by Sections 201
or 301, the Trustee shall not be required to authenticate such Securities if the
issuance of such Securities pursuant to this Indenture will affect the Trustee's
own rights, duties or immunities under the Securities and this Indenture or
otherwise in a manner which is not reasonably acceptable to the Trustee.
If the Company shall establish pursuant to Section 301 that Securities
of a series may be issued in whole or in part in global form, then the Company
shall execute and the Trustee shall, in accordance with this Section and the
Company Order with respect to such series, authenticate and deliver one or more
Securities in global form that (i) shall represent and shall be denominated in
an authorized aggregate amount equal to the aggregate principal amount of the
Outstanding Securities of such series and tenor to be represented by one or more
Securities in global form, (ii) shall be registered, if in registered form, in
the name of the Depositary, (iii) shall be delivered to such Depositary or
pursuant to such Depositary's instruction and (iv) shall bear a legend
substantially to the following effect (with such modifications as are necessary
to reflect the name of the Depositary):
"Unless this certificate is presented by an authorized
representative of The Depository Trust Company, a New York corporation
("DTC"), to the Company or its agent for registration or transfer,
exchange or payment, and any certificate issued is registered in the
name of CEDE & CO. or such other name as requested by an authorized
representative of DTC (and any payment is made to CEDE & CO. or such
other entity as is requested by an authorized agent of DTC), any
transfer, pledge or other use hereof for value or otherwise by or to
any person is wrongful in so much as the registered owner hereof, CEDE
& CO., has an interest herein.
Each Depositary designated pursuant to Section 301 for a
Registered Security in global form must, at the time of its designation
and at all times while it serves as Depositary, be a clearing agency
registered under the Exchange Act and any other applicable statute or
regulation.
Unless and until this Security is exchanged in whole or in
part for certified Securities registered in the names of the various
beneficial holders hereof as then certified to the Company by DTC or a
successor depositary, this Security may not be transferred except as a
whole by DTC to a nominee of DTC or by a nominee of DTC to DTC or
another nominee of DTC or by DTC or any such nominee to a successor
depositary or a nominee of such successor depositary.
This Security may be exchanged for certified Securities
registered in the names of the various beneficial owners hereof only if
(a) DTC is at any time unwilling or unable to continue as depositary
and as a successor depositary is not appointed by the Company
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within 90 days, or (b) the Company elects to issue certified Securities
to beneficial owners (as certified to the Company by DTC or a successor
depositary) of all Securities of the series designated below."
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee or its agent by manual signature, and such certificate
upon any Security shall be conclusive evidence, and the only evidence, that such
Security has been duly authenticated and delivered hereunder and is entitled to
the benefits of this Indenture. Notwithstanding the foregoing, if any Security
shall have been authenticated and delivered hereunder to the Company, or any
Person acting on its behalf, but shall never have been issued and sold by the
Company, and the Company shall deliver such Security to the Trustee for
cancellation as provided in Section 309 together with a written statement (which
need not comply with Section 102 and need not be accompanied by an Opinion of
Counsel) stating that such Security has never been issued and sold by the
Company, for all purposes of this Indenture such Security shall be deemed never
to have been authenticated and delivered hereunder and shall never be entitled
to the benefits hereof.
Section 304. Temporary Securities.
Pending the preparation of definitive Securities of any series, the
Company may execute, and upon Company Order the Trustee shall authenticate and
make available for delivery, temporary Securities which are printed,
lithographed, typewritten, mimeographed or otherwise produced, in any authorized
denomination, substantially of the tenor of the definitive Securities in lieu of
which they are issued, with such appropriate insertions, omissions,
substitutions and other variations as the officers executing such Securities may
determine, as evidenced by their execution of such Securities; provided,
however, that temporary Securities need not recite specific redemption, sinking
fund, conversion or exchange provisions.
If temporary Securities of any series are issued, the Company shall
cause definitive Securities of such series to be prepared without unreasonable
delay. After the preparation of definitive Securities of such series, the
temporary Securities of such series shall be exchangeable for definitive
Securities of such series upon surrender of the temporary Securities of such
series at the office or agency of the Company maintained pursuant to Section 610
in a Place of Payment for such series, without charge to the Holder. Upon
surrender for cancellation of any one or more temporary Securities of any
series, the Company shall execute and the Trustee shall authenticate and make
available for delivery in exchange therefor definitive Securities of the same
series, of authorized denominations and of like tenor and aggregate principal
amount.
Until exchanged in full as hereinabove provided, the temporary
Securities of any series shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities
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of the same series and of like tenor authenticated and delivered hereunder.
Section 305. Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept at the office of the Security
Registrar designated pursuant to Section 604 a register (referred to as the
"Security Register") in which, subject to such reasonable regulations as it may
prescribe, the Company shall provide for the registration of Securities and the
registration of transfer thereof.
Upon surrender for registration of transfer of any Security of any
series at the office of agency of the Company maintained pursuant to Section 604
in a Place of Payment for such series, the Company shall execute, and the
Trustee shall authenticate and make available for delivery, in the name of the
designated transferee or transferees, one or more new Securities of the same
series, of authorized denominations and of like tenor and aggregate principal
amount.
At the option of the Holder, Securities of any series may be exchanged
for other Securities of the same series, of authorized denominations and of like
tenor and aggregate principal amount, upon surrender of the Securities to be
exchanged at any such office or agency. Whenever any Securities are so
surrendered for exchange, the Company shall execute, and the Trustee shall
authenticate and make available for delivery, the Securities which the Holder
making the exchange is entitled to receive.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or
for exchange shall (if so required by the Company or the Trustee or any transfer
agent) be duly endorsed or shall be accompanied by a written instrument of
transfer in form satisfactory to the Company and the Security Registrar or any
transfer agent duly executed by the Holder thereof or his attorney duly
authorized in writing.
Unless otherwise provided in a Board Resolution or an Officers'
Certificate pursuant to a Board Resolution, or in an indenture supplemental
hereto, with respect to Securities of any series, or any Tranche thereof, no
service charge shall be made for any registration of transfer or exchange of
Securities, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in connection with any
registration of transfer or exchange of Securities, other than exchanges
pursuant to Section 304, 306 or 1206 not involving any transfer.
The Company shall not be required (a) to issue, to register the
transfer of or to exchange Securities of any series during a period of 15 days
immediately preceding the date notice is given
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identifying the serial numbers of the Securities of such series called for
redemption or (b) to issue, to register the transfer of or to exchange any
Security so selected for redemption in whole or in part, except the unredeemed
portion of any Security being redeemed in part.
Section 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, the Company
shall execute and the Trustee shall authenticate and make available for delivery
in exchange therefor a new Security of the same series, and of like tenor and
principal amount and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (a) evidence
to their satisfaction of the ownership of and the destruction, loss or theft of
any Security and (b) such security or indemnity as may be reasonably required by
them to save each of them and any agent of either of them harmless, then, in the
absence of notice to the Company or the Trustee that such Security has been
acquired by a bona fide purchaser, the Company shall execute and the Trustee
shall authenticate and make available for delivery, in lieu of any such
destroyed, lost or stolen Security, a new Security of the same series, and of
like tenor and principal amount and bearing a number not contemporaneously
outstanding.
Notwithstanding the foregoing, in case any such mutilated, destroyed,
lost or stolen Security has become or is about to become due and payable, the
Company in its discretion may, instead of issuing a new Security, pay such
Security.
Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
reasonable expenses (including the fees and expenses of the Trustee) connected
therewith.
Every new Security of any series issued pursuant to this Section in
lieu of any destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company, whether or not the destroyed,
lost or stolen Security shall be at any time enforceable by anyone, and any such
new Security shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Securities of such series duly issued
hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities.
Section 307. Payment of Interest; Interest Rights Preserved.
Unless otherwise provided as contemplated by Section 301 with respect
to the Securities of any series, or any Tranche thereof, interest on any
Security which is payable, and is punctually
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paid or duly provided for, on any Interest Payment Date shall be paid to the
Person in whose name that Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest.
Any interest on any Security of any series which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date (the
"Defaulted Interest") shall forthwith cease to be payable to the Holder on the
related Regular Record Date by virtue of having been such Holder, and such
Defaulted Interest may be paid by the Company, at its election in each case, as
provided in clause (a) or (b) below:
(a) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Securities of such series
(or their respective Predecessor Securities) are registered at the
close of business on a Special Record Date for the payment of such
Defaulted Interest, which shall be fixed in the following manner. The
Company shall notify the Trustee in writing of the amount of Defaulted
Interest proposed to be paid on each Security of such series and the
date of the proposed payment, and at the same time the Company shall
deposit with the Trustee an amount of money equal to the aggregate
amount proposed to be paid in respect of such Defaulted Interest or
shall make arrangements satisfactory to the Trustee for such deposit
prior to the date of the proposed payment, such money when deposited to
be held in trust for the benefit of the Persons entitled to such
Defaulted Interest as in this clause provided. Thereupon the Trustee
shall fix a Special Record Date for the payment of such Defaulted
Interest which shall be not more than 15 days and not less than 10 days
prior to the date of the proposed payment and not less than 20 days
after the receipt by the Trustee of the notice of the proposed payment.
The Trustee shall promptly notify the Company of such Special Record
Date and, in the name and at the expense of the Company, shall promptly
cause notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor to be mailed, first-class postage prepaid,
to each Holder of Securities of such series at the address of such
Holder as it appears in the Security Register, not less than 10 days
prior to such Special Record Date. Notice of the proposed payment of
such Defaulted Interest and the Special Record Date therefor having
been so mailed, such Defaulted Interest shall be paid to the Persons in
whose names the Securities of such series (or their respective
Predecessor Securities) are registered at the close of business on such
Special Record Date and shall no longer be payable pursuant to the
following clause (b).
(b) The Company may make payment of any Defaulted Interest on
the Securities of any series in any other lawful manner not
inconsistent with the requirements of any securities exchange on which
such Securities may be listed, and upon such notice as may be required
by such exchange, if, after notice given by the Company to the Trustee
of the proposed payment pursuant to this clause, such manner of payment
shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section and Section 305, each
Security delivered
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under this Indenture upon registration of transfer of or in exchange for or in
lieu of any other Security shall carry the rights to interest accrued and
unpaid, and to accrue, which were carried by such other Security.
Section 308. Persons Deemed Owners.
The Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name such Security is registered as the absolute
owner of such Security for the purpose of receiving payment of principal of and
premium, if any, and (subject to Sections 305 and 307) interest, if any, on such
Security and for all other purposes whatsoever, whether or not such Security
shall be overdue, and neither the Company, the Trustee nor any agent of the
Company or the Trustee shall be affected by notice to the contrary.
Section 309. Cancellation.
All Securities surrendered for payment, redemption, conversion,
registration of transfer or exchange or for credit against any sinking fund
payment shall, if surrendered to any Person other than the Trustee, be delivered
to the Trustee and, if not theretofore canceled, shall be promptly canceled by
the Trustee. The Company may at any time deliver to the Trustee for cancellation
any Securities previously authenticated and delivered hereunder which the
Company may have acquired in any manner whatsoever or which the Company shall
not have issued and sold, and all Securities so delivered shall be promptly
canceled by the Trustee. No Securities shall be authenticated in lieu of or in
exchange for any Securities canceled as provided in this Section, except as
expressly permitted by this Indenture. All canceled Securities held by the
Trustee shall be returned to the Company.
Section 310. Computation of Interest.
Except as otherwise specified as contemplated by Section 301 for
Securities of any series, interest on the Securities of each series shall be
computed on the basis of a 360-day year consisting of twelve 30-day months.
Section 311. Payment to Be in Proper Currency.
In the case of any Securities denominated in any currency other than
United States Dollars or in a composite currency (the "Required Currency"),
except as otherwise provided therein, the obligation of the Company to make any
payment of the principal thereof, or the premium or interest thereon, shall not
be discharged or satisfied by any tender by the Company, or recovery by the
Trustee, in any currency other than the Required Currency, except to the extent
that such tender or recovery shall result in the Trustee timely holding the full
amount of the Required Currency then due and payable. If any such tender or
recovery is in a currency other than the Required Currency, the Trustee may take
such actions as it considers appropriate to exchange such currency for the
Required Currency. The costs and risks of any such exchange, including without
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limitation the risks of delay and exchange rate fluctuation, shall be borne by
the Company. The Company shall remain fully liable for any shortfall or
delinquency in the full amount of Required Currency then due and payable, and in
no circumstances shall the Trustee be liable therefor except in the case of its
negligence or willful misconduct. The Company hereby waives any defense of
payment based upon any such tender or recovery which is not in the Required
Currency, or which, when exchanged for the Required Currency by the Trustee, is
less than the full amount of Required Currency then due and payable.
Section 312. CUSIP Numbers.
The Company in issuing the Securities may use "CUSIP" numbers (if then
generally in use), and, if so, the Trustee shall use "CUSIP" numbers in notices
of redemption as a convenience to Holders; provided that any such notice may
state that no representation is made as to the correctness of such numbers
either as printed on the Securities or as contained in any notice of a
redemption and that reliance may be placed only on the other identification
numbers printed on the Securities, and any such redemption shall not be affected
by any defect in or omission of such numbers. ARTICLE FOUR
Redemption of Securities
Section 401. Applicability of Article.
Securities of any series, or any Tranche thereof, which are redeemable
before their Stated Maturity shall be redeemable in accordance with their terms
and (except as otherwise specified as contemplated by Section 301 for Securities
of such series or Tranche) in accordance with this Article.
Section 402. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be evidenced
by a Board Resolution or an Officers' Certificate. The Company shall, at least
45 days prior to the Redemption Date fixed by the Company (unless a shorter
notice shall be satisfactory to the Trustee), notify the Trustee in writing of
such Redemption Date and of the principal amount of such Securities to be
redeemed. In the case of any redemption of Securities (a) prior to the
expiration of any restriction on such redemption provided in the terms of such
Securities or elsewhere in this Indenture or (b) pursuant to an election of the
Company which is subject to a condition specified in the terms of such
Securities, the Company shall furnish the Trustee with an Officers' Certificate
evidencing compliance with such restriction or condition.
Section 403. Selection of Securities to Be Redeemed.
If less than all of the Securities of any series, or any Tranche
thereof, are to be redeemed,
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the particular Securities to be redeemed shall be selected by the Security
Registrar from the Outstanding Securities of such series or Tranche not
previously called for redemption, by such method as the Trustee shall deem fair
and appropriate and which may provide for the selection for redemption of
portions (equal to the minimum authorized denomination for Securities of such
series or Tranche or any integral multiple thereof) of the principal amount of
Securities of such series or Tranche of a denomination larger than the minimum
authorized denomination for Securities of such series or Tranche; provided,
however, that if, as indicated in an Officers' Certificate, the Company shall
have offered to purchase all Securities then Outstanding of any series, or any
Tranche thereof, and less than all of such Securities shall have been tendered
to the Company for such purchase, the Trustee, if so directed by Company Order,
shall select for redemption all such Securities which have not been so tendered.
The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption and, in the case of any Securities selected
to be redeemed in part, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Securities redeemed or to be redeemed only in part, to the
portion of the principal amount of such Securities which has been or is to be
redeemed.
Section 404. Notice of Redemption.
Notice of redemption shall be given in the manner provided in Section
106 to the Holders to be redeemed not less than 30 nor more than 60 days prior
to the Redemption Date.
All notices of redemption shall state:
(a) the Redemption Date;
(b) the Redemption Price;
(c) the CUSIP number(s), if any;
(d) if less than all of the Securities of any series or
Tranche are to be redeemed, the identification of the particular Securities to
be redeemed and the portion of the principal amount of any Security to be
redeemed in part;
(e) that on the Redemption Date the Redemption Price will
become due and payable upon each such Security to be redeemed and, if
applicable, that interest thereon will cease to accrue on and after said date;
(f) the place or places where such Securities are to be
surrendered for payment
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of the Redemption Price; and
(g) the purpose for the redemption (with reference to the
applicable Section of the Indenture).
With respect to any notice of redemption of Securities at the election
of the Company, unless, upon the giving of such notice, such Securities shall be
deemed to have been paid in accordance with Section 701, such notice may state
that such redemption shall be conditional upon the receipt by the Trustee, on or
prior to the date fixed for such redemption, of money sufficient to pay the
principal of and premium, if any, and interest, if any, on such Securities and
that if such money shall not have been so received such notice shall be of no
force or effect and the Company shall not be required to redeem such Securities.
In the event that such notice of redemption contains such a condition and such
money is not so received, the redemption shall not be made and within a
reasonable time thereafter notice shall be given, in the manner in which the
notice of redemption was given, that such money was not so received and such
redemption was not required to be made.
Notice of redemption of Securities to be redeemed at the election of
the Company, and any notice of nonsatisfaction of a condition for redemption as
aforesaid, shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
Section 405. Securities Payable On Redemption Date.
Notice of redemption having been given as aforesaid, and the
conditions, if any, set forth in such notice having been satisfied, the
Securities or portions thereof so to be redeemed shall, on the Redemption Date,
become due and payable at the Redemption Price therein specified, and from and
after such date (unless, in the case of an unconditional notice of redemption,
the Company shall default in the payment of the Redemption Price and accrued
interest, if any) such Securities or portions thereof, if interest-bearing,
shall cease to bear interest. Upon surrender of any such Security for redemption
in accordance with such notice, such Security or portion thereof shall be paid
by the Company at the Redemption Price, together with accrued interest, if any,
to the Redemption Date; provided, however, that any installment of interest on
any Security the Stated Maturity of which installment is on or prior to the
Redemption Date shall be payable to the Holder of such Security, or one or more
Predecessor Securities, registered as such at the close of business on the
related Regular Record Date according to the terms of such Security and subject
to the provisions of Section 307.
Section 406. Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be surrendered
at a Place of Payment therefor (with, if the Company or the Trustee so requires,
due endorsement by, or a written instrument of transfer in form satisfactory to
the Company and the Trustee duly executed
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by, the Holder thereof or his attorney duly authorized in writing), and the
Company shall execute, and the Trustee shall authenticate and make available for
delivery to the Holder of such Security, without service charge, a new Security
or Securities of the same series, of any authorized denomination requested by
such Holder and of like tenor and in aggregate principal amount equal to and in
exchange for the unredeemed portion of the principal of the Security so
surrendered.
ARTICLE FIVE
Sinking Funds
Section 501. Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund
for the retirement of the Securities of any series, or any Tranche thereof,
except as otherwise specified as contemplated by Section 301 for Securities of
such series or Tranche.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series, or any Tranche thereof, is herein referred to
as a "mandatory sinking fund payment", and any payment in excess of such minimum
amount provided for by the terms of Securities of any series, or any Tranche
thereof, is herein referred to as an "optional sinking fund payment". If
provided for by the terms of Securities of any series, or any Tranche thereof,
the cash amount of any sinking fund payment may be subject to reduction as
provided in Section 502. Each sinking fund payment shall be applied to the
redemption of Securities of the series or Tranche in respect of which it was
made as provided for by the terms of such Securities.
Section 502. Satisfaction of Sinking Fund Payments with Securities.
The Company (a) may deliver Outstanding Securities (other than any
previously called for redemption) of a series or Tranche in respect of which a
mandatory sinking fund payment is to be made and (b) may apply as a credit
Securities of such series or Tranche which have been redeemed either at the
election of the Company pursuant to the terms of such Securities or through the
application of permitted optional sinking fund payments pursuant to the terms of
such Securities, in each case in satisfaction of all or any part of such
mandatory sinking fund payment; provided, however, that no Securities shall be
applied in satisfaction of a mandatory sinking fund payment if such Securities
shall have been previously so applied. Securities so applied shall be received
and credited for such purpose by the Trustee at the Redemption Price specified
in such Securities for redemption through operation of the sinking fund and the
amount of such mandatory sinking fund payment shall be reduced accordingly.
Section 503. Redemption of Securities for Sinking Fund.
Not less than 45 days prior to each sinking fund payment date for the
Securities of any series, or any Tranche thereof, the Company shall deliver to
the Trustee an Officers' Certificate
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specifying:
(a) The amount of the next succeeding mandatory sinking fund payment for
such series or Tranche;
(b) the amount, if any, of the optional sinking fund payment to be made
together with such mandatory sinking fund payment;
(c) the aggregate sinking fund payment;
(d) the portion, if any, of such aggregate sinking fund payment which is to
be satisfied by the payment of cash; and
(e) the portion, if any, of such aggregate sinking fund payment which is to
be satisfied by delivering and crediting Securities of such series or Tranche
pursuant to Section 502 and stating the basis for such credit and that such
Securities have not previously been so credited, and the Company shall also
deliver to the Trustee any Securities to be so delivered. If the Company shall
not deliver such Officers' Certificate, the next succeeding sinking fund payment
for such series or Tranche shall be made entirely in cash in the amount of the
mandatory sinking fund payment. Not less than 30 days before each such sinking
fund payment date the Trustee shall select the Securities to be redeemed upon
such sinking fund payment date in the manner specified in Section 403 and cause
notice of the redemption thereof to be given in the name of and at the expense
of the Company in the manner provided in Section 404. Such notice having been
duly given, the redemption of such Securities shall be made upon the terms and
in the manner stated in Sections 405 and 406.
ARTICLE SIX
Covenants
Section 601. Payment of Principal, Premium and Interest.
The Company shall pay the principal of and premium, if any, and
interest, if any, on the Securities of each series in accordance with the terms
of such Securities and this Indenture.
Section 602. Limitation on Liens.
The Company shall not, and shall not permit any Restricted Subsidiary
to, directly or indirectly, Incur or suffer to exist, any Lien (other than
Permitted Liens) upon any of its Property or assets, whether now owned or
hereafter acquired, or any interest therein or any income or profits therefrom,
unless it has made or will make effective provision whereby the Securities of
each series will be secured by such Lien equally and ratably with (or prior to)
all other
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Indebtedness of the Company or any Restricted Subsidiary secured by such Lien
for so long as any such other Indebtedness of the Company or any Restricted
Subsidiary shall be so secured.
Section 603. Designation of Restricted and Unrestricted Subsidiaries.
The Board of Directors of the Company may designate an Unrestricted
Subsidiary as a Restricted Subsidiary or designate a Restricted Subsidiary as an
Unrestricted Subsidiary at any time; provided, however, that (i) immediately
after giving effect to such designation, there exist no Liens (other than
Permitted Liens) on the property of the Company or the Restricted Subsidiaries
and (ii) an Officers' Certificate with respect to such designation is delivered
to the Trustee within 75 days after the end of the fiscal quarter of the Company
in which such designation is made (or, in the case of a designation made during
the last fiscal quarter of the Company's fiscal year, within 120 days after the
end of such fiscal year), which Officers' Certificate shall state the effective
date of such designation.
Section 604. Maintenance of Office or Agency.
The Company shall maintain in each Place of Payment for the Securities
of any series, or any Tranche thereof, an office or agency where such Securities
may be presented or surrendered for payment, where such Securities may be
surrendered for registration of transfer, exchange or conversion and where
notices and demands to or upon the Company in respect of such Securities and
this Indenture may be served. The Company shall give prompt written notice to
the Trustee of the location, and any change in the location, of such office or
agency and prompt notice to the Holders of any such change in the manner
specified in Section 106. If at any time the Company shall fail to maintain any
such required office or agency in respect of Securities of any series, or any
Tranche thereof, or shall fail to furnish the Trustee with the address thereof,
such presentations and surrenders of such Securities may be made and notices and
demands may be made or served at the Corporate Trust Office of the Trustee, and
the Company hereby appoints the Trustee as its agent to receive such respective
presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more other
offices or agencies where the Securities of one or more series, or any Tranche
thereof, 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 for such purposes in each Place of
Payment for such Securities in accordance with the requirements set forth above.
The Company shall give prompt written notice to the Trustee, and prompt notice
to the Holders in the manner specified in Section 106, of any such designation
or rescission and of any change in the location of any such other office or
agency.
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Anything herein to the contrary notwithstanding, any office or agency
required by this Section may be maintained at any office of the Company, in
which event the Company shall perform all functions to be performed at such
office or agency.
Section 605. Money for Securities Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent with
respect to the Securities of any series, or any Tranche thereof, it shall, on or
before each due date of the principal of and premium, if any, or interest, if
any, on any of such Securities, segregate and hold in trust for the benefit of
the Persons entitled thereto a sum sufficient to pay the principal and premium
or interest so becoming due until such sums shall be paid to such Persons or
otherwise disposed of as herein provided and shall promptly notify the Trustee
of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for the
Securities of any series, or any Tranche thereof, it shall, prior to each due
date of the principal of and premium, if any, or interest, if any, on such
Securities, deposit with such Paying Agents sums sufficient (without
duplication) to pay the principal and premium or interest so becoming due, such
sum to be held in trust for the benefit of the Persons entitled to such
principal, premium or interest, and (unless such Paying Agent is the Trustee)
the Company shall promptly notify the Trustee of its action or failure so to
act.
The Company shall cause each Paying Agent for the Securities of any
series, or any Tranche thereof, other than the Trustee, to execute and deliver
to the Trustee an instrument in which such Paying Agent shall agree with the
Trustee, subject to the provisions of this Section, that such Paying Agent
shall:
(a) hold all sums held by it for the payment of the principal
of and premium, if any, or interest, if any, on Securities of such
series or Tranche in trust for the benefit of the Persons entitled
thereto until such sums shall be paid to such Persons or otherwise
disposed of as herein provided;
(b) give the Trustee notice of any Default by the Company (or
any other obligor upon the Securities of such series or Tranche) in the
making of any payment of principal of and premium, if any, or interest,
if any, on the Securities of such series or Tranche; and
(c) at any time during the continuance of any such Default,
upon the written request of the Trustee, forthwith pay to the Trustee
all sums so held in trust by such Paying Agent.
The Company may at any time pay, or by Company Order direct any Paying
Agent to pay, to the Trustee all sums held in trust by the Company or such
Paying Agent, such sums to be held by the Trustee upon the same trusts as those
upon which such sums were held by the Company
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or such Paying Agent; and, upon such payment by and any Paying Agent to the
Trustee, such Paying Agent shall be released from all further liability with
respect to such money.
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 and premium, if
any, or interest, if any, on any Security and remaining unclaimed for two years
after such principal and premium, if any, or interest, if any, has become due
and payable shall be paid to the Company on Company Request, or, if then held by
the Company, shall be discharged from such trust; and the Holder of such
Security shall thereafter, as an unsecured general creditor, look only to the
Company for payment thereof, and all liability of the Trustee or such Paying
Agent with respect to such trust money, and all liability of the Company as
trustee thereof, shall thereupon cease; provided, however, that the Trustee or
such Paying Agent, before being required to make any such payment to the
Company, may at the expense of the Company cause to be mailed, on one occasion
only, notice to such Holder that such money remains unclaimed and that, after a
date of such mailing, any unclaimed balance of such money then remaining will be
paid to the Company.
Section 606. Statement as to Compliance; Notice of Default.
The Company shall deliver to the Trustee, not less often than annually,
a written statement, which need not comply with Section 102, signed by its
principal executive officer, principal financial officer or principal accounting
officer, stating, as to each signer thereof, that:
(a) a review of the activities of the Company during such year and of
performance under this Indenture has been made under his supervision; and
(b) to the best of his knowledge, based on such review, either (1) the
Company has fulfilled all its obligations under this Indenture throughout such
year or if there has been a Default in the fulfillment of any such obligation,
specifying each such Default known to him and the nature and status thereof and
(2) no Event of Default has occurred and is continuing or, if an Event of
Default has occurred and is continuing, specifying each such Event of Default
known to him and the nature and status thereof.
The Company shall file with the Trustee written notice of the
occurrence of any Default or Event of Default within five Business Days of its
becoming aware of any such Default or Event of Default.
Section 607. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any
term, provision or condition set forth in (a) Section 604 or any additional
covenant or restriction specified with respect to the Securities of any series,
or any Tranche thereof, as contemplated by Section 301 if before the time for
such compliance the Holders of at least a majority in aggregate principal amount
of the Outstanding Securities of all series and Tranches with respect to which
compliance
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with Section 601 or such additional covenant or restriction is to be omitted,
considered as one class, shall, by Act of such Holders, either waive such
compliance in such instance or generally waive compliance with such terms,
provision or condition and (b) Section 602, 603, 606, or Article Eleven if
before the time for such compliance the Holders of at least a majority in
principal amount of Securities Outstanding under this Indenture shall, by Act of
such Holders, either waive such compliance in such instance or generally waive
compliance with such term, provision or condition; but, in the case of (a) or
(b), no such waiver shall extend to or affect such term, provision or condition
except to the extent of expressly waived, and, until such waiver shall become
effective, the obligations of the Company and the duties of the Trustee in any
such term, provision or condition shall remain in full force and effect.
ARTICLE SEVEN
Satisfaction and Discharge
Section 701. Satisfaction and Discharge Liability of Securities; Defeasance
(a) When (i) the Company delivers to the Trustee all of the
Outstanding Securities of any series for cancellation or (ii) all of the
Outstanding Securities of any series have become due and payable and the Company
irrevocably deposits with the Trustee funds sufficient to pay at Maturity or
upon redemption all of the Outstanding Securities of any series, including
interest thereon, and if in either case the Company pays all other sums payable
hereunder by the Company, then this Indenture shall, subject to Sections 701(c),
702 and 706, cease to be of further effect. The Trustee shall acknowledge
satisfaction and discharge of this Indenture on demand of the Company
accompanied by an Officers' Certificate and an Opinion of Counsel and at the
cost and expense of the Company.
(b) Subject to Sections 701(c), 702 and 706, the Company at any time
may terminate (i) all its obligations under the Securities of any series and
this Indenture ("legal defeasance option") or (ii) its obligations with respect
to the Securities of any series under Sections 602, 603, 1504 (to the extent
that failure to comply with such Section 1504 shall not violate the Trust
Indenture Act), and the operation of Sections 810(c), 801(e), 801(f) (with
respect to Restricted Subsidiaries), 801(g) (with respect to Restricted
Subsidiaries) and 801(h) ("covenant defeasance option"). The Company may
exercise its legal defeasance option with respect to the Securities of any
series notwithstanding its prior exercise of its covenant defeasance option with
respect to the Securities of such series.
If the Company exercises its legal defeasance option with respect to
the Securities of any series, payment of the Securities of such series may not
be accelerated because of an Event of Default with respect to the Securities of
such series. If the Company exercises its covenant defeasance option with
respect to the Securities of any series, payment of the Securities of such
series may not be accelerated because of an Event of Default with respect to the
Securities of such series specified in Sections 801(c), 801(e), 801(f) (with
respect to Restricted Subsidiaries), 801(g)
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(with respect to Restricted Subsidiaries) and 801(h) (except to the extent
covenants or agreements referenced in such Sections remain applicable).
Upon satisfaction of the conditions set forth herein and upon request
of the Company, the Trustee shall acknowledge in writing the discharge of those
obligations that the Company terminates.
(c) Notwithstanding clauses (a) and (b) above, the Company's
obligations with respect to the Securities of any series in Sections 305, 306,
604, 605, 704, 705, 706, 907, 910 and 1502 shall survive until the Securities of
such series have been paid in full. Thereafter, the Company's obligations with
respect to the Securities of such series in Sections 704, 705 and 907 shall
survive.
Section 702. Conditions to Defeasance.
The Company may exercise its legal defeasance option with respect to
the Securities of any series or its covenant defeasance option only if:
(a) the Company irrevocably deposits in trust with the Trustee money or
U.S. Government Obligations for the payment of principal and interest on the
Securities of such series to Maturity;
(b) the Company delivers to the Trustee a certificate from a nationally
recognized firm of independent accountants expressing their opinion that the
payments of principal and interest when due and without reinvestment on the
deposited U.S. Government Obligations plus any deposited money without
investment will provide cash at such times and in such amounts as will be
sufficient to pay principal and interest when due on all of the Securities of
such series to Maturity;
(c) 123 days pass after the deposit is made and during such 123-day period
no Default specified in Section 801(f) or (g) with respect to the Company occurs
which is continuing at the end of such period;
(d) the deposit does not constitute a default under any other agreement
binding on the Company;
(e) the Company delivers to the Trustee an Opinion of Counsel to the effect
that the trust resulting from the deposit does not constitute, or is qualified
as, a regulated investment company under the Investment Company Act of 1940;
(f) in the case of the legal defeasance option, the Company shall have
delivered to the Trustee an Opinion of Counsel stating that (i) the Company has
received from the Internal Revenue Service a ruling, or (ii) since the date of
this Indenture, there has been a change in the applicable Federal income tax
law, in either case to the effect
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that, and based thereon such Opinion of Counsel shall confirm that, the Holders
of the Securities if such series will not recognize income, gain or loss for
Federal income tax purposes as a result of such deposit and 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 deposit and defeasance had
not occurred;
(g) in the case of the covenant defeasance option, the Company shall have
delivered to the Trustee an Opinion of Counsel to the effect that the Holders of
the Securities if such series will not recognize income, gain or loss for
Federal income tax purposes as a result of such deposit and covenant defeasance
and will be subject to Federal income tax on the same amounts, in the same
manner and at the same times as would have been the case if such deposit and
covenant defeasance had not occurred; and
(h) the Company delivers to the Trustee an Officers' Certificate and an
Opinion of Counsel, each stating that all conditions precedent to the defeasance
and discharge of the Securities of such series as contemplated by this Article
Seven have been complied with.
Section 703. Application of Trust Money.
The Trustee shall hold in trust money or U.S. Government Obligations
deposited with it pursuant to this Article Seven. The Trustee shall apply the
deposited money and the money from U.S. Government Obligations through the
Paying Agent and in accordance with this Indenture to the payment of principal
of and interest on the Securities of the applicable series.
Section 704. Repayment to Company.
The Trustee and the Paying Agent shall promptly turn over to the
Company upon request any excess money or Securities held by them at any time.
Subject to any applicable abandoned property law, the Trustee and the
Paying Agent shall pay to the Company upon written request any money held by
them for the payment of principal or interest that remains unclaimed for two
years, and, thereafter, Holders of the Securities entitled to the money must
look to the Company for payment as general creditors.
Section 705. Indemnity for Government Obligations.
The Company shall pay and shall indemnify the Trustee against any tax,
fee or other charge imposed on or assessed against deposited U.S. Government
Obligations or the principal and interest received on such U.S. Government
Obligations.
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Section 706. Reinstatement.
If the Trustee or Paying Agent is unable to apply any money or U.S.
Government Obligations in accordance with this Article Seven by reason of any
legal proceeding or by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, the Company's obligations under this Indenture and the Securities
of the applicable series shall be revived and reinstated as though no deposit
had occurred pursuant to this Article Seven until such time as the Trustee or
Paying Agent is permitted to apply all such money or U.S. Government Obligations
in accordance with this Article Seven.
ARTICLE EIGHT
Events of Default; Remedies
Section 801. Events of Default.
"Events of Default", wherever used herein with respect to Securities of
any series, means any one of the following events:
(a) failure to pay any interest on any Security of such series within 30
days after the same becomes due and payable; or
(b) failure to pay the principal of or premium, if any, on any Security of
such series at Maturity, upon acceleration, optional redemption, required
purchase (including purchases pursuant to Section 1001) or otherwise; or
(c) failure to perform, or breach of, any covenant or warranty of the
Company in Section 602 or 603, and such failure to perform or breach continues
for 30 days after there has been given, by registered or certified mail, to the
Company by the Trustee, or to the Company and the Trustee by the Holders of at
least 25% in principal amount of the Outstanding Securities of such series, a
written notice specifying such default or breach and requiring it to be remedied
and stating that such notice is a "Notice of Default" hereunder; or
(d) failure to perform, or breach of, any covenant or warranty of the
Company in this Indenture (other than those referred to in (a), (b) or (c)
above) and such failure to perform or breach continues for 60 days after there
has been given, by registered or certified mail, to the Company by the Trustee,
or to the Company and the Trustee by the Holders of at least 25% in principal
amount of the Outstanding Securities of such series, a written notice specifying
such default or breach and requiring it to be remedied and stating that such
notice is a "Notice of Default" hereunder; or
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(e) the principal of, any premium or accrued and unpaid interest on
Indebtedness of the Company or any Restricted Subsidiary (other than the
Securities) is not paid when due within any applicable grace period or is
accelerated by the holders thereof, and the total amount of such principal,
premium (if any) and interest that is unpaid or accelerated exceeds in the
aggregate $25 million at the time; or
(f) the Company or any Restricted Subsidiary pursuant to or within the
meaning of any Bankruptcy Law:
(1) commences a voluntary case;
(2) consents to the entry of an order for relief against it in an
involuntary case;
(3) consents to the appointment of a Custodian of it or for any substantial
part of its Property; or
(4) makes a general assignment for the benefit of its creditors;
or takes any comparable action under any foreign laws relating to
insolvency; or
(g) a court of competent jurisdiction enters an order or decree under any
Bankruptcy Law that:
(1) is for relief against the Company or any Restricted Subsidiary in an
involuntary case;
(2) appoints a Custodian of the Company or any Restricted Subsidiary for
any substantial part of its property; or
(3) orders the winding up or liquidation of the Company or any Restricted
Subsidiary;
or any similar relief is granted under any foreign laws and the order or
decree remains unstayed and in effect for 60 days; or
(h) any final judgment or decree for the payment of money in an uninsured
aggregate amount in excess of $25 million at the time is entered against the
Company or any Restricted Subsidiary and is not waived, satisfied or discharged
and there is a period of 60 consecutive days following the entry of such
judgment or decree during which such judgment or decree is not discharged,
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waived, satisfied or the execution thereof stayed; or
(i) any other Events of Default specified with respect to Securities of
such series.
The foregoing will constitute Events of Default whatever the reason for
any such Event of Default and whether it is voluntary or involuntary or is
effected by operation of law or pursuant to any judgment, decree or order of any
court or any order, rule or regulation of any administrative or governmental
body.
The term "Bankruptcy Law" means Title 11, United States Code, or any
similar Federal or state law for the relief of debtors. The term "Custodian"
means any receiver, trustee, assignee, liquidator, custodian or similar official
under any Bankruptcy Law.
Section 802. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default shall have occurred and be continuing with
respect to Securities of any series at the time Outstanding, then in every such
case the Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Securities of such series may declare the principal amount (or, if
any of the Securities of such series are Discount Securities, such portion of
the principal amount of such Securities as may be specified in the terms thereof
as contemplated by Section 301) of all of the Securities of such series to be
due and payable immediately, by a notice in writing to the Company (and to the
Trustee if given by Holders), and upon receipt by the Company of notice of such
declaration such principal amount (or specified amount) shall become immediately
due find payable; provided, however, that if an Event of Default shall have
occurred and be continuing with respect to more than one series of Securities,
the Trustee or the Holders of not less than 25% in aggregate principal amount of
the Outstanding Securities of all such series, considered as one class, may make
such declaration of acceleration, and not the Holders of the Securities of any
one of such series.
At any time after such a declaration of acceleration with respect to
the Securities of any series shall have been made and before a judgment or
decree for payment of the money due shall have been obtained by the Trustee as
hereinafter in this Article provided, the Event or Events of Default giving rise
to such declaration of acceleration shall, without further act, be deemed to
have been waived, and such declaration and its consequences shall, without
further act, be deemed to have been rescinded and annulled, if:
(a) the Company shall have paid or deposited with the Trustee a sum
sufficient to pay:
(1) all overdue interest on all Securities of such series;
(2) the principal of and premium, if any, on any Securities of such
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series which have become due other than by such declaration of acceleration
and interest thereon at the rate or rates prescribed therefor in such
Securities;
(3) to the extent that payment of such interest is lawful, interest upon
overdue interest as the rate of rates prescribed therefor in such Securities;
(4) all amounts due to the Trustee under Section 907;
and
(b) any other Event or Events of Default with respect to the Securities of
such series, other than the non-payment of the principal of Securities of such
series which shall have become due solely by such declaration or acceleration,
shall have been cured or waived as provided in Section 813.
No such rescission shall affect any subsequent Event of Default or impair any
right consequent thereon.
Section 803. Collection of Indebtedness and Suits for Enforcement by Trustee.
If any Event of Default described in clause (a) or (b) of Section 801
shall have occurred and be continuing, the Company shall, upon demand of the
Trustee, pay to it, for the benefit of the Holders of the Securities of the
series with respect to which such Event of Default shall have occurred, the
whole amount then due and payable on such Securities for principal and premium,
if any, and interest, if any, and, to the extent permitted by law, interest on
premium, if any, and on any overdue principal and interest, at the rate or rates
prescribed therefor in such Securities, and, in addition thereto, such further
amount as shall be sufficient to cover any amounts due to the Trustee under
Section 907.
If the Company shall fail to pay such amounts forthwith upon such
demand, the Trustee, in its own name and as trustee of an express trust, may
institute a judicial proceeding for the collection of the sums so due and
unpaid, may prosecute such proceeding to judgment or final decree and may
enforce the same against the Company or any other obligor upon such Securities
and collect the moneys adjudged or decreed to be payable in the manner provided
by law out of the property of the Company or any other obligor upon such
Securities, wherever situated.
If an Event of Default with respect to Securities of any series shall
have occurred and be continuing, the Trustee may in its discretion proceed to
protect and enforce its rights and the rights of the Holders of the Securities
of such series by such appropriate judicial proceedings as the Trustee shall
deem most effectual to protect and enforce any such rights, whether for the
specific enforcement of any covenant or agreement in this Indenture or in aid of
the exercise of any power granted herein, or to enforce any other proper remedy.
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Section 804. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company, of any other obligor upon the
Securities or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of the Securities
shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustees shall have made any demand on
the Company for the payment of overdue principal or interest) shall be entitled
and empowered, by intervention in such proceeding or otherwise,
(a) to file and prove a claim for the whole amount of principal, premium,
if any, and interest, if any, owing and unpaid in respect of the Securities and
to file such other papers or documents as may be necessary or advisable in order
to have the claims of the Trustee (including any claim for amounts due to the
Trustee under Section 907) and of the Holders allowed in such judicial
proceeding, and
(b) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the Holder, to
pay to the Trustee any amounts due it under Section 907.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
Section 805. Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or the Securities
may be prosecuted and enforced by the Trustee without any proceeding relating
thereto, and any such proceeding instituted by the Trustee shall be brought in
its own name as trustee of an express trust, any recovery of judgment shall,
after provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders in respect of which such judgment has been
recovered.
Section 806. Application of Money Collected.
Any moneys collected by the Trustee with respect to Securities of a
series pursuant to this Article Eight shall be applied in the order following,
at the date or dates fixed by the Trustee and,
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in case of the distribution of such moneys on account of principal, premium, if
any, or interest, upon presentation of the Securities of such series, and the
notation thereon of the payment, if only partially paid, and upon surrender
thereof, if fully paid:
FIRST: To the payment of all amounts due to the Trustee pursuant to Section
907 (which, in the event that moneys have been collected in respect of the
Securities of more than one series, shall be allocated among each such series
pro rata based on the aggregate principal amount of each series then
Outstanding);
SECOND: In case the principal or premium, if any, of the Outstanding
Securities of such series shall not have become due at Maturity, by required
repurchase, by declaration or otherwise, to the payment of interest on the
Outstanding Securities of such series, in the order of the maturity of the
installments of such interest, with interest (to the extent that such interest
has been collected by the Trustee) upon the overdue installments of interest at
the same rate as the rate of interest specified in the Securities of such
series, such payments to be made ratably to the persons entitled thereto,
without discrimination or preference;
THIRD: In case the principal or premium, if any, of the Outstanding
Securities of such series shall have become due, at Maturity, by required
repurchase, by declaration or otherwise, to the payment of the whole amount then
owing and unpaid upon the Securities of such series for principal and premium,
if any, and interest, with interest upon the overdue principal and premium, if
any, and (to the extent that such interest has been collected by the Trustee)
upon overdue installments of interest at the same rate as the rate of interest
specified in the Securities of such series; and in case such moneys shall be
insufficient to pay in full the whole amount so due and unpaid upon the
Securities of such series, then to the payment of such principal, premium, if
any, and interest, without preference or priority of principal and premium, if
any, over interest, or of interest over principal and premium, if any, or of any
installment of interest over any other installment of interest, or of any
Securities of such series over any other Securities of such series, ratably to
the aggregate of such principal and premium, if any, and accrued and unpaid
interest; and
FOURTH: To the payment of the remainder, if any, to the Company, its
successors or assigns, or to whosoever may be lawfully entitled to receive the
same, or as a court of competent jurisdiction may direct.
Any moneys collected by the Trustee with respect to Securities of more
than one series pursuant to this Article Eight shall be applied as set forth
above in this Section 806 upon all such Securities pro rata based on the
aggregate principal amount of such series then Outstanding, without
discrimination or preference.
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Section 807. Limitation on Suits.
No Holder shall have any right to institute any proceeding, judicial or
otherwise, with respect to this Indenture, or for the appointment of a receiver
or trustee, or for any other remedy hereunder, unless:
(a) such Holder shall have previously given written notice to the Trustee
of a continuing Event of Default with respect to the Securities of such series;
(b) the Holders of not less than a majority in aggregate principal amount
of the Outstanding Securities of all series in respect of which an Event of
Default shall have occurred and be continuing, considered as one class, shall
have made written request to the Trustee to institute proceedings in respect of
such Event of Default in its own name as Trustee hereunder;
(c) such Holder or Holders shall have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be Incurred in
compliance with such request;
(d) the Trustee for 60 days after its receipt of such notice, request and
offer of indemnity shall have failed to institute any such proceeding; and
(e) no direction inconsistent with such written request shall have been
given to the Trustee during such 60-day period by the Holders of a majority in
aggregate principal amount of the Outstanding Securities of all series in
respect of which an Event of Default shall have occurred and be continuing,
considered as one class;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, any provision of this Indenture
to affect, disturb or prejudice the rights of any other of such Holders or to
seek to obtain priority or preference over any other of such Holders or to
enforce any right under this Indenture, except in the manner herein provided and
for the equal and ratable benefit of all of such Holders.
Section 808. Unconditional Right of Holders to Receive Principal, Premium
and Interest.
Notwithstanding any other provision in this Indenture, the Holder of
any Security shall have the right, which is absolute and unconditional, to
receive payment of the principal of and premium, if any, and (subject to Section
807) interest, if any, on such Security on the Stated Maturity or Maturities
expressed in such Security (or, in the case of redemption, on the Redemption
Date) and to institute suit for the enforcement of any such payment, and such
rights shall not be impaired without the consent of such Holder.
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Section 809. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding shall have been
discontinued or abandoned for any reason, or shall have been determined
adversely to the Trustee or to such Holder, then and in every such case, subject
to any determination in such proceeding, the Company, and the Trustee and such
Holder shall be restored severally and respectively to their former positions
hereunder and thereafter all rights and remedies of the Trustee and such Holder
shall continue as though no such proceeding had been instituted.
Section 810. Rights and Remedies Cumulative.
Except as otherwise provided in the last paragraph of Section 306, no
right or remedy herein conferred upon or reserved to the Trustee or to the
Holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
Section 811. Delay or Omission Not Waiver.
No delay or omission of the Trustee or any Holder to exercise any right
or remedy accruing upon any Event of Default shall impair any such right or
remedy or constitute a waiver of any such Event of Default or an acquiescence
therein. Every right and remedy given by this Article or by law to the Trustee
or to the Holders may be exercised from time to time, and as often as may be
deemed expedient, by the Trustee or by the Holders, as the case may be.
Section 812. Control by Holders Of Securities.
If an Event of Default shall have occurred and be continuing in respect
of a series of Securities, the Holders of a majority in principal amount of the
Outstanding Securities of such series shall have the right to direct the time,
method and place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred on the Trustee, with respect
to the Securities of such series; provided, however, that if an Event of Default
shall have occurred and be continuing with respect to more than one series of
Securities, the Holders of a majority in aggregate principal amount of the
Outstanding Securities of all such series, considered as one class, shall have
the right to make such direction, and not the Holders of the Securities of any
one of such series; and provided, further, that
(a) such direction shall not be in conflict with rule of law or with this
Indenture, and could not involve the Trustee in personal liability in
circumstances where indemnity would not, in the Trustee's sole discretion, be
adequate, and
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(b) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction.
Section 813. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the
Outstanding Securities of any series may on behalf of the Holders of all of the
Securities of such series waive any past default hereunder with respect to such
series and its consequences except a default
(a) in the payment of the principal of or premium, if any, or interest, if
any, on any Security of such series, or
(b) in respect of a covenant or provision hereof which under Section 1302
cannot be modified or amended without the consent of the Holder of each
Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any and
all Events 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 814. Undertaking for Costs.
The Company and the Trustee agree, and each Holder by his acceptance
thereof shall be deemed to have agreed, that any court may in its discretion
require, in any suit for the enforcement of any right or remedy under this
Indenture, or in any suit against the Trustee for any action taken, suffered or
omitted by it as Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to any suit instituted by the
Company, to any suit instituted by the Trustee, to any suit instituted by any
Holder, or group of Holders, holding in the aggregate more than 10% in aggregate
principal amount of the Outstanding Securities of all series in respect of which
such suit may be brought, considered as one class, or to any suit instituted by
any Holder for the enforcement of the payment of the principal of or premium, if
any, or interest, if any, on any Security on or after the Stated Maturity or
Maturities expressed in such Security (or, in the case of redemption, on or
after the Redemption Date).
Section 815. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead, or in any manner whatsoever claim
or take the benefit or advantage of, any stay or extension law wherever enacted,
now at any time hereafter in force, which may affect
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the covenants or the performance of this Indenture; and the Company (to the
extent that it may lawfully do so) hereby expressly waives all benefit or
advantage of any such law and covenants that it will not hinder, delay or impede
the execution of any power herein granted to the Trustee, but will suffer and
permit the execution of every such power as though no such law had been enacted.
ARTICLE NINE
The Trustee
Section 901. Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default with respect to
Securities of any series:
(1) the Trustee undertakes to perform, with respect to Securities of such
series, such duties and only such duties as are specifically set forth in this
Indenture, and no implied covenants or obligations shall be read into this
Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may, with respect
to Securities of such series, 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; but in the case of any such certificates or
opinions which by any provision hereof are specifically required to be furnished
to the Trustee, the Trustee shall be under a duty to examine the same to
determine whether or not they conform to the requirements of this Indenture.
(b) In case an Event of Default with respect to Securities of any
series shall have occurred and be continuing, the Trustee shall exercise, with
respect to Securities of such series, such of the rights and powers vested in it
by this Indenture, and use the same degree of care and skill in their exercise,
as a prudent man would exercise or use under the circumstances in the conduct of
his own affairs.
(c) No provisions of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own wilful misconduct, except that:
(1) this subsection shall not be construed to limit the effect
of subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it shall be proved
that the Trustee was negligent in ascertaining the pertinent facts;
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(3) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with the
direction of the Holders of a majority in principal amount of the
Outstanding Securities of any one or more series, as provided herein,
relating to the time, method and place of conducting any proceeding for
any remedy available to the Trustee, under this Indenture with respect
to the Securities of such series; and
(4) no provision of this Indenture shall require the Trustee
to expend or risk its own funds or otherwise Incur any financial
liability in the performance of any of its duties hereunder, or in the
exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to
it.
(d) Whether or not therein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of this
Section.
Section 902. Notice of Defaults.
Within 90 days after the occurrence of any Default hereunder with
respect to the Securities of any series, the Trustee shall transmit by mail to
all Holders of Securities of such series entitled to receive reports pursuant to
Section 1500(c), notice of any Default hereunder known to the Trustee, unless
such Default shall have been cured and waived; provided, however, that, except
in the case of a Default in the payment of the principal of or premium, if any,
or interest, if any, on any Security of such series or in the payment of any
sinking fund installment with respect to Securities of such series, the Trustee
shall be protected in withholding such notice if and so long as the board of
directors, the executive committee or a trust committee of directors or
Responsible Officers of the Trustee in good faith determine that the withholding
of such notice is in the interest of the Holders of Securities of such series;
and provided, further, that in the case of any Default of the character
specified in Section 801(c) or (d) with respect to Securities of such series, no
such notice to Holders shall be given until at least 75 days after the
occurrence thereof.
Section 903. Certain Rights of Trustee.
Subject to the provisions of Section 901:
(a) the Trustee may rely and shall be protected in acting or refraining
from acting upon any resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond, debenture, note, other
evidence of indebtedness or other paper or document believed by it to be genuine
and to have been signed or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall be
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sufficiently evidenced by a Company Request or Company Order, or as otherwise
expressly provided herein, and any resolution of the Board of Directors may be
sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the Trustee shall deem
it desirable that a matter be proved or established prior to taking, suffering
or omitting any action hereunder, the Trustee (unless other evidence be therein
specifically prescribed) may, in the absence of bad faith on its part, rely upon
an Officers' Certificate;
(d) the Trustee may consult with counsel and the written advice of such
counsel or any Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it hereunder
in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the rights
or powers vested in it by this Indenture at the request or direction of any
Holder pursuant to this Indenture, unless such Holder shall have offered to the
Trustee reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred by it in compliance with such request or
direction;
(f) the Trustee shall not be bound to make any investigation into the facts
or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of Indebtedness or other paper or document, but the
Trustee, in its discretion, may make such further inquiry or investigation into
such facts or matters as it may see fit, and, if the Trustee shall determine to
make such further inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Company, personally or by agent or attorney;
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder;
(h) except as otherwise provided in Section 801(d), the Trustee shall not
be charged with knowledge of any Event of Default with respect to the Securities
of any series for which it is acting as Trustee unless either (1) a Responsible
Officer of the Trustee assigned to the corporate trust department of the Trustee
(or any successor division or department of the Trustee) shall have actual
knowledge of the Event of Default or (2) written notice of such Event of Default
shall have been given to the Trustee by the Company, any other obligor on such
Securities or by any Holder of such Securities; and
(i) the Trustee shall not be liable for any action taken, suffered, or
omitted to be taken by it in good faith and reasonably believed, upon advice of
counsel, by it to be
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authorized or within the discretion or rights or powers conferred upon it by
this Indenture.
Section 904. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities (except the
Trustee's certificates of authentication) shall be taken as the statement of the
Company, and the Trustee or any Authenticating Agent assumes no responsibility
for their correctness. The Trustee makes no representations as to the validity
or sufficiency of this Indenture or of the Securities. The Trustee or any
Authenticating Agent shall not be accountable for the use or application by the
Company of Securities or the proceeds thereof.
Section 905. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, and Security
Registrar or any other agent of the Company, in its individual or any other
capacity, may become the owner or pledgee of Securities and, subject to Sections
908 and 913, may otherwise deal with the Company with the same rights it would
have if it were not Trustee, Authenticating Agent, Paying Agent, Security
Registrar or such other agent.
Section 906. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated
from other funds, except to the extent required by law. The Trustee shall be
under no liability for interest on any money received by it hereunder except as
otherwise agreed in writing with the Company.
Section 907. Compensation and Reimbursement.
The Company shall:
(a) pay to the Trustee from time to time such compensation as
shall be agreed to in writing between the Company and the Trustee for
all services rendered by it hereunder (which compensation shall not be
limited by any provision of law in regard to the compensation of a
trustee of an express trust);
(b) except as otherwise expressly provided herein, reimburse
the Trustee upon its request for all expenses, disbursements and
advances reasonably Incurred or made by the Trustee in accordance with
any provision of this Indenture (including the compensation and the
expenses and disbursements of its agents and counsel), except any such
expense, disbursement or advance as may be attributable to its
negligence, willful misconduct or bad faith; and
(c) indemnify the Trustee and hold it harmless from and
against, any and all loss, damage, claims, liability or expense,
including taxes (other than taxes based upon
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measured or determined by the income of the Trustee) reasonably
Incurred without negligence, willful misconduct or bad faith on its
part, arising out of or in connection with the acceptance or
administration of the trust or trusts hereunder, including the costs
and expenses of defending itself against any claim or liability in
connection with the exercise or performance of any of its powers or
duties hereunder.
As security for the performance of the obligations of the Company under
this Section, the Trustee shall have a Lien prior to the Securities upon all
property and funds held or collected by the Trustee as such other than property
and funds held in trust under Section 703 (except as otherwise provided in
Section 703).
When the Trustee Incurs expenses or renders services in connection with
an Event of Default specified in Section 801(d) or Section 801(e), the expenses
(including the reasonable charges and expenses of its counsel) and the
compensation for the services are intended to constitute expenses of
administration under any applicable Federal or State bankruptcy, insolvency or
other similar law.
The provisions of this Section shall survive the termination of this
Indenture.
Section 908. Disqualification; Conflicting Interests.
(a) If the Trustee shall have or acquire any conflicting interest (as
defined in Section 310(b) of the Trust Indenture Act), and a Default has
occurred and is continuing with respect to the Securities of any series, it
shall, within 90 days after ascertaining that it has such conflicting interest,
and if the Default to which such conflicting interest relates has not been cured
or duly waived or otherwise eliminated before the end of such 90-day period,
either eliminate such conflicting interest or resign with respect to the
Securities of such series in the manner and with the effect hereinafter
specified in this Article.
(b) In the event that the Trustee shall fail to comply with the
provisions of subsection (a) of this Section with respect to the Securities of
any series, the Trustee shall, within 10 days after the expiration of such
90-day period, transmit, in the manner and to the extent provided in Section
1503(c), to all Holders of Securities of such series notice of such failure.
(c) Except in the case of a Default in the payment of the principal of
or interest on any Security, or in the payment of any sinking fund or purchase
fund installment, the Trustee shall not be required to resign as provided by
this Section if the Trustee shall have sustained the burden of proving, on
application to the Commission and after opportunity for hearing thereon, that
(1) the Default to which the conflicting interest relates may be cured or waived
during a reasonable period and under the procedures described in such
application and (2) a stay of the Trustee's duty to resign will not be
inconsistent with the interests of the Holders. The filing of such an
application shall automatically stay the performance of the duty to resign until
the Commission orders otherwise.
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(d) Any resignation of the Trustee pursuant to this Section shall
become effective only upon the appointment of a successor Trustee, and such
successor Trustee's acceptance of such appointment, in the manner hereinafter
specified in this Article.
Section 909. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be a
corporation organized and doing business under the laws of the United States of
America, any State thereof or the District of Columbia, authorized under such
laws to exercise corporate trust powers, having a combined capital and surplus
of at least $50,000,000 and subject to supervision or examination by Federal or
state authority and qualified and eligible under this Article. If such
corporation publishes reports of condition at least annually, pursuant to law or
to the requirements of such supervising or examining authority, then for the
purposes of this Section, the combined capital and surplus of such corporation
shall be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. If at any time the Trustee shall cease
to be eligible in accordance with the provisions of this Section, it shall
resign immediately in the manner and with the effect hereinafter specified in
this Article.
Section 910. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 911.
(b) The Trustee may resign at any time with respect to the Securities
of one or more series by giving written notice thereof to the Company. If the
instrument of acceptance by a successor Trustee required by Section 911 shall
not have been delivered to the Trustee within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the
Securities of such series.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal amount
of the Outstanding Securities of such series delivered to the Trustee and to the
Company;
(d) If at any time:
(1) the Trustee shall fail to comply with Section 908(a) after
written request therefor by the Company or by any Holder who has been a
bona fide Holder for at least six months, or
(2) the Trustee shall cease to be eligible under Section
908(a) and shall fail to resign after written request therefor by the
Company or by any such Holder, or
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(3) the Trustee shall become incapable of acting or shall be
adjudged bankrupt or insolvent or a receiver of the Trustee or of its
property shall be appointed or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (x) the Company by a Board Resolution may remove the
Trustee with respect to all Securities or (y) subject to Section 814, any Holder
who has been a bona fide Holder for at least six months may, on behalf of
himself and all others similarly situated, petition any court of competent
jurisdiction for the removal of the Trustee with respect to all Securities and
the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause, with
respect to the Securities of one or more series, the Company, by a Board
Resolution, shall promptly appoint a successor Trustee or Trustees with respect
to the Securities of that or those series (it being understood that any such
successor Trustee may be appointed with respect to the Securities of one or more
or all such series and that at any time there shall be only one Trustee with
respect to the Securities of any particular series) and shall comply with the
applicable requirements of Section 911. If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Securities of any series shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance
of such appointment in accordance with the applicable requirements of Section
911, become the successor Trustee with respect to the Securities of such series
and to that extent supersede the successor Trustee appointed by the Company. If
no successor Trustee with respect to the Securities of any series shall have
been so appointed by the Company or the Holders and accepted appointment in the
manner required by Section 911, any Holder who has been a bona fide Holder of a
Security of such series for at least six months may, on behalf of himself and
all others similarly situated, petition any court of competent jurisdiction for
the appointment of a successor Trustee with respect to the Securities of such
series.
(f) The Company shall give notice of each resignation and each removal
of the Trustee with respect to the Securities of any series and each appointment
of a successor Trustee with respect to the Securities of any series by mailing
written notice of such event by first-class mail, postage prepaid, to all
Holders of Securities of such series as their names and addresses appear in the
Security Register. Each notice shall include the name of the successor Trustee
with respect to the Securities of such series and the address of its Corporate
Trust Office.
Section 911. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of all series, every such successor Trustee so
appointed shall execute, acknowledge and deliver to the Company and to the
retiring Trustee an instrument accepting such appointment, and
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thereupon the resignation or removal of the retiring Trustee shall become
effective and such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee; but, on the request of the Company or the successor
Trustee, such retiring Trustee shall, upon payment of all sums owed to it,
execute and deliver an instrument transferring to such successor Trustee all the
rights, powers and trusts of the retiring Trustee and shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company, the
retiring Trustee and each successor Trustee with respect to the Securities of
one or more series shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and which (1) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series to which the appointment of such successor Trustee related, (2)
if the retiring Trustee is not retiring with respect to all Securities, shall
contain such provisions as shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the retiring Trustee and
(3) shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein or
in such supplemental indenture shall constitute such Trustees co-trustees of the
same trust and that each such Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any other such Trustee; and upon the execution and delivery of such supplemental
indenture the resignation or removal of the retiring Trustee shall become
effective to the extent provided therein and each such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates; but, on request of the Company or any successor Trustee, such
retiring Trustee, upon payment of all sums owed to it, shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall
execute any instruments which fully vest in and confirm to such successor
Trustee all such rights, powers and trusts referred to in subsection (a) or (b)
of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the
time of such acceptance such successor Trustee shall be qualified and eligible
under this Article.
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Section 912. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been authenticated,
but not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated with the same effect
as if such successor Trustee had itself authenticated such Securities.
Section 913. Preferential Collection of Claims Against Company.
(a) Subject to subsection (b) of this Section, if the Trustee shall be
or shall become a creditor, directly or indirectly, secured or unsecured, of the
Company within three months prior to a default, as defined in subsection (c) of
this Section, or subsequent to such a default, then, unless and until such
default shall be cured, the Trustee shall set apart and hold in a special
account for the benefit of the Trustee individually, the Holders and the Holders
of other indenture securities, as defined in subsection (c) of this Section:
(1) an amount equal to any and all reductions in the amount
due and owing upon any claim as such creditor in respect of principal
or interest, effected after the beginning of such three months' period
and valid as against the Company and its other creditors, except any
such reduction resulting from the receipt or disposition of any
property described in clause (2) of this paragraph, or from the
exercise of any right of set-off which the Trustee could have exercised
if a petition in bankruptcy had been filed by or against the Company
upon the date of such default; and
(2) all property received by the Trustee in respect of any
claims as such creditor, either as security therefor, or in
satisfaction or composition thereof, or otherwise, after the beginning
of such three months' period, or an amount equal to the proceeds of any
such property, if disposed of, subject, however, to the rights, if any,
of the Company and its other creditors in such property or such
proceeds.
Nothing herein contained, however, shall affect the right of the
Trustee:
(1) to retain for its own account (A) payments made on account
of any such claim by any Person (other than the Company) who is liable
thereon, (B) the proceeds of the bona fide sale of any such claim by
the Trustee to a third Person and (C) distributions made in cash,
securities or other property in respect of claims filed against the
Company in bankruptcy or receivership or in proceedings for
reorganization pursuant to the Federal
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Bankruptcy Act or applicable state law;
(2) to realize, for its own account, upon any property held by
it as security for any such claim, if such property was held prior to
the beginning of such three months' period;
(3) to realize, for its own account, but only to the extent of
the claim hereinafter mentioned, upon any property held by it as
security for any such claim, if such claim was created after the
beginning of such three months' period and such property was received
as security therefor simultaneously with the creation thereof, and if
the Trustee shall sustain the burden of proving that at the time such
property was so received the Trustee had no reasonable cause to believe
that a default, as defined in subsection (c) of this Section, would
occur within three months; or
(4) to receive payment on any claim referred to in clause (2)
or (3) of this paragraph, against the release of any property held as
security for such claim as provided in such clause (2) or (3), as they
case may be, to the extent of the fair value of such property.
For the purposes of clauses (2), (3) and (4) of this paragraph, property
substituted after the beginning of such three months' period for property held
as security at the time of such substitution shall, to the extent of the fair
value of the property released, have the same status as the property released,
and, to the extent that any claim referred to in any of such paragraphs is
created in renewal of or in substitution for or for the purpose of repaying or
refunding any preexisting claim of the Trustee as such creditor, such claim
shall have the same status as such preexisting claim.
If the Trustee shall be required to account, the funds and property
held in such special account and the proceeds thereof shall be apportioned among
the Trustee, the Holders and the Holders of other indenture securities in such
manner that the Trustee, the Holders and the Holders of other indenture
securities realize, as a result of payments from such special account and
payments of dividends on claims filed against the Company in bankruptcy or
receivership or in proceedings for reorganization pursuant to the Federal
Bankruptcy Act or applicable state law, the same percentage of their respective
claims, figured before crediting to the claim of the Trustee anything on account
of the receipt by it from the Company of the funds and property in such special
account and before crediting to the respective claims of the Trustee and the
Holders and the Holders of other indenture securities dividends on claims filed
against the Company in bankruptcy or receivership or in proceedings for
reorganization pursuant to the Federal Bankruptcy Act or applicable State law,
but after crediting thereon receipts on account of the indebtedness represented
by their respective claims from all sources other than from such dividends and
from the funds and property so held in such special account. As used in this
paragraph, with respect to any claim, the term "dividends" shall include any
distribution with respect to such claim, in bankruptcy or receivership or
proceedings for reorganization pursuant
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to the Federal Bankruptcy Act or applicable state law, whether such distribution
is made in cash, securities or other property, but shall not include any such
distribution with respect to the secured portion, if any, of such claim. The
court in which such bankruptcy, receivership or proceedings for reorganization
is pending shall have jurisdiction (1) to apportion among the Trustee, the
Holders and the Holders of other indenture securities, in accordance with the
provisions of this paragraph, the funds and property held in such special
account and proceeds thereof, or (2) in lieu of such apportionment, in whole or
in part, to give the provisions of this paragraph due consideration in
determining the fairness of the distributions to be made to the Trustee and the
Holders and the Holders of other indenture securities with respect to their
respective claims, in which event it shall not be necessary to liquidate or to
appraise the value of any securities or other property held in such special
account or as security for any such claim, or to make a specific allocation of
such distributions as between the secured and unsecured portions of such claims,
or otherwise to apply to the provisions of this paragraph as a mathematical
formula.
Any Trustee which has resigned or been removed after the beginning of
such three months' period shall be subject to the provisions of this subsection
as though such resignation or removal had not occurred. If any Trustee has
resigned or been removed prior to the beginning of such three months' period, it
shall be subject to the provisions of this subsection if and only if the
following conditions exist:
(1) the receipt of property or reduction of claim, which would
have given rise to the obligation to account, if such Trustee had
continued as Trustee, occurred after the beginning of such three
months' period; and
(2) such receipt of property or reduction of claim occurred
within three months after such resignation or removal.
(b) There shall be excluded from the operation of subsection
(a) of this Section a creditor relationship arising from:
(1) the ownership or acquisition of securities issued under
any indenture, or any security or securities having a maturity of one
year or more at the time of acquisition by the Trustee;
(2) advances authorized by a receivership or bankruptcy court
of competent jurisdiction or by this Indenture, for the purpose of
preserving any property which shall at any time be subject to the lien
of this Indenture or of discharging tax liens or other prior liens or
encumbrances thereon, if notice of such advances and of the
circumstances surrounding the making thereof is given to the Holders at
the time and in the manner provided in this Indenture;
(3) disbursements made in the ordinary course of business in
the capacity of trustee under an indenture, transfer agent, registrar,
custodian, paying agent, fiscal agent
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or depositary, or other similar capacity;
(4) an Indebtedness created as a result of services rendered
or premises rented; or an Indebtedness created as a result of goods or
securities sold in a cash transaction, as defined in subsection (c) of
this Section;
(5) the ownership of stock or of other securities of a
corporation organized under the provisions of Section 25(a) of the
Federal Reserve Act, as amended, which is directly or indirectly a
creditor of the Company; and
(6) the acquisition, ownership, acceptance or negotiation of
any drafts, bills of exchange, acceptances or obligations which fall
within the classification of self-liquidating paper, as defined in
subsection (c) of this Section.
(c) For the purposes of this Section only:
(1) the term "default" means any failure to make payment in
full of the principal of or interest on any of the Securities or upon
the other indenture securities when and as such principal or interest
becomes due and payable;
(2) the term "other indenture securities" means securities
upon which the Company is an obligor outstanding under any other
indenture (A) under which the Trustee is also trustee, (B) which
contains provisions substantially similar to the provisions of this
Section and (c) under which a default exists at the time of the
apportionment of the funds and property held in such special account;
(3) the term "cash transaction" means any transaction in which
full payment for goods or securities sold is made within seven days
after delivery of the goods or securities in currency or in checks or
other orders drawn upon banks or bankers and payable upon demand;
(4) the term "self-liquidating paper" means any draft, bill of
exchange, acceptance or obligation which is made, drawn, negotiated or
incurred by the Company for the purpose of financing the purchase,
processing, manufacturing, shipment, storage or sale of goods, wares or
merchandise and which is secured by documents evidencing title to,
possession of, or a Lien upon, the goods, wares or merchandise or the
receivables or proceeds arising from the sale of the goods, wares or
merchandise previously constituting the security, provided the security
is received by the Trustee simultaneously with the creation of the
creditor relationship with the Company arising from the making,
drawing, negotiating or incurring of the draft, bill of exchange,
acceptance or obligations;
(5) the term "Company" means any obligor upon the Securities;
and
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(6) the term "Federal Bankruptcy Act" means the Bankruptcy Act
or Title 11 of the United States Code.
Section 914. Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents with respect
to the Securities of one or more series, or any Tranche thereof, which shall be
authorized to act on behalf of the Trustee to authenticate Securities of such
series or Tranche issued upon original issuance, exchange, registration of
transfer or partial redemption thereof or pursuant to Section 306, and
Securities so authenticated shall be entitled to the benefits of this Indenture
and shall be valid and obligatory for all purposes as if authenticated by the
Trustee hereunder. Whenever reference is made in this Indenture to the
authentication and delivery of Securities by the Trustee or the Trustee's
certificate of authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Trustee by an Authenticating Agent
and a certificate of authentication executed on behalf of the Trustee by an
Authenticating Agent. Each Authenticating Agent shall be acceptable to the
Company and shall at all times be a corporation organized and doing business
under the laws of the United States of America, any State or territory thereof
or the District of Columbia or the Commonwealth of Puerto Rico, authorized under
such laws to act as Authenticating Agent, having a combined capital and surplus
of not less than $25,000,000 and subject to supervision or examination by
Federal or state authority. If such Authenticating Agent publishes reports of
condition at least annually, pursuant to law or to the requirements of said
supervising or examining authority, then for the purposes of this Section, the
combined capital and surplus of such Authenticating Agent shall be deemed to be
its combined capital and surplus as set forth in its most recent report of
condition so published. If at any time an Authenticating Agent shall cease to be
eligible in accordance with the provisions of this Section, such Authenticating
Agent shall resign immediately in the manner and with the effect specified in
this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and to the Company. The Trustee may at any time terminate
the agency of an Authenticating Agent by giving written notice thereof to such
Authenticating Agent and to the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company. Any successor Authenticating
Agent upon acceptance of its
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appointment hereunder shall become vested with all the rights, powers and duties
of its predecessor hereunder, with like effect as if originally named as an
Authenticating Agent. No successor Authenticating Agent shall be appointed
unless eligible under the provisions of this Section.
The Company agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section.
The provisions of Sections 308, 904 and 905 shall be applicable to each
Authenticating Agent.
If an appointment with respect to the Securities of one or more series,
or any Tranche thereof, shall be made pursuant to this Section, the Securities
of such series or Tranche may have endorsed thereon, in addition to the
Trustee's certificate of authentication, an alternate certificate of
authentication substantially in the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
As Trustee
By:
As Authenticating Agent
By:
Authorized Signatory
If all of the Securities of a series may not be originally issued at
one time, and if the Trustee does not have an office capable of authenticating
Securities upon original issuance located in a Place of Payment where the
Company wishes to have Securities of such series authenticated upon original
issuance, the Trustee, if so requested by the Company in writing (which writing
need not comply with Section 102 and need not be accompanied by an Opinion of
Counsel), shall appoint, in accordance with this Section and in accordance with
such procedures as shall be acceptable to the Trustee, an Authenticating Agent
(which, if so requested by the Company, may be an Affiliate of the Company)
having an office in a Place of Payment designated by the Company with respect to
such series of Securities.
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Section 915. Trustee's Application for Instructions from the Company.
Any application by the Trustee for written instructions from the
Company may, at the option of the Trustee, set forth in writing any action
proposed to be taken or omitted by the Trustee under this Indenture and the date
on and/or after which such action shall be taken or such omission shall be
effective. The Trustee shall not be liable for any action taken by, or omission
of, the Trustee in accordance with a proposal included in such application on or
after the date specified in such application (which date shall not be less than
three Business Days after the date any officer of the Company actually receives
such application, unless any such officer shall have consented in writing to any
earlier date) unless prior to taking any such action (or the effective date in
the case of an omission), the Trustee shall have received written instructions
in response to such application specifying the action to be taken or omitted.
ARTICLE TEN
Right to Require Repurchase
Section 1001. Repurchase of Securities at Option of the Holder upon Change of
Control.
(a) Upon the occurrence of a Change of Control Triggering Event, the
Company shall notify the Trustee in writing of such occurrence and shall make an
offer to purchase (the "Change of Control Offer") the Securities at a purchase
price equal to 101% of the principal amount thereof plus any accrued and unpaid
interest thereon to the Change of Control Payment Date (as hereinafter defined)
(the "Change of Control Purchase Price") in accordance with the procedures set
forth in this Section.
(b) Within 30 days of the occurrence of a Change of Control Triggering
Event, the Company also shall (i) cause a notice of the Change of Control Offer
to be sent at least once to the Dow Jones News Service or similar business news
service in the United States and (ii) send by first-class mail, postage prepaid,
to the Trustee and to each Holder of the Securities, at his address appearing in
the register of the Securities maintained by the Securities Registrar, a notice
stating:
(1) that a Change of Control Triggering Event has occurred and the Change
of Control Offer is being made pursuant to this Section and that all such
Securities timely tendered will be accepted for payment, subject to the terms
and conditions set forth herein;
(2) the Change of Control Purchase Price and the purchase date (which shall
be a Business Day no earlier than 30 days and no later than 60 days after the
date on which such notice is mailed) (the "Change of Control Payment Date");
(3) that any such Security (or portions thereof) not tendered will continue
to
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accrue interest;
(4) a description of the transaction or transactions constituting the
Change of Control Triggering Event;
(5) that, unless the Company defaults in the payment of the Change of
Control Purchase Price, any such Securities accepted for payment pursuant to the
Change of Control Offer shall cease to accrue interest after the Change of
Control Payment Date;
(6) that Holders accepting the offer to have their Securities purchased
pursuant to a Change of Control Offer will be required to surrender such
Securities to the Paying Agent at the address specified in the notice prior to
the close of business on the Business Day preceding the Change of Control
Payment Date;
(7) that Holders will be entitled to withdraw their acceptance if the
Paying Agent receives, not later than the close of business on the third
Business Day preceding the Change of Control Payment Date, a facsimile
transmission or letter setting forth the name of the Holder, the principal
amount of such Securities delivered for purchase, and a statement that such
holder is withdrawing his election to have such Securities purchased;
(8) that Holders whose Securities are being purchased only in part will be
issued new Securities equal in principal amount to the unpurchased portion of
the Securities surrendered, provided that each Security purchased and each such
new Security issued shall be in a principal amount in denominations of $1,000
and integral multiples thereof; and
(9) any other procedures that a holder must follow to accept a Change of
Control Offer or effect withdrawal of such acceptance.
(c) On the Change of Control Payment Date, the Company shall (a) accept
for payment the Securities or portions thereof tendered pursuant to the Change
of Control Offer, (b) deposit with the Paying Agent money sufficient to pay the
Change of Control Purchase Price and (c) deliver or cause to be delivered to the
Trustee the Securities so accepted together with an Officers' Certificate
indicating the Securities or portions thereof tendered to the Company. The
Paying Agent shall promptly mail to each holder of Securities so accepted
payment in an amount equal to the Change of Control Purchase Price for such
Securities, and the Trustee shall promptly authenticate and mail to such Holder
a new Security equal in principal amount to any unpurchased portion of the
Securities surrendered; provided that each such new Security shall be issued in
an original principal amount in denominations of $1,000 and integral multiples
thereof.
Section 1002. Covenant To Comply with Securities Laws upon Purchase of
Securities.
In connection with any purchase of Securities under Section 1001 by the
Company, the
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Company shall, to the extent then applicable and required by law, (i) comply
with Rule 14e-1 (which term, as used herein, includes any successor provisions
thereto) under the Exchange Act and (ii) otherwise comply with all Federal and
state securities laws so as to permit the rights and obligations under Section
1001 to be exercised in the time and in the manner specified in such Sections.
To the extent that the provisions of any such securities laws or regulations
conflict with the provisions of Section 1001, the Company shall comply with the
applicable securities laws and regulations and shall not be deemed to have
breached its obligations described in such Section 1001 by virtue thereof.
ARTICLE ELEVEN
Merger, Consolidation and Sale of Assets
Section 1101. When Company May Merge or Transfer Assets.
(a) The Company shall not merge or consolidate with or into any other
entity (other than a merger of a Wholly Owned Subsidiary into the Company) or
sell, transfer, assign, lease, convey or otherwise dispose of all or
substantially all of its property or assets in any one transaction or series of
transactions unless: (i) the entity formed by or surviving any such
consolidation or merger (if the Company is not the surviving entity) or the
Person to which such sale, transfer, assignment, lease or conveyance is made
(the "Surviving Entity") shall be a corporation organized and existing under the
laws of the United States of America or a State thereof or the District of
Columbia and such corporation expressly assumes, by supplemental indenture in
form satisfactory to the Trustee, executed and delivered to the Trustee by such
corporation, the due and punctual payment of the principal of, premium, if any,
and interest, if any, on all of the Securities, according to their tenor, and
the due and punctual performance and observance of all the covenants and
conditions of this Indenture to be performed by the Company; (ii) in the case of
a sale, transfer, assignment, lease, conveyance or other disposition of all or
substantially all of the Company's property or assets, such property or assets
shall have been transferred as an entirety or virtually as an entirety to one
Person; and (iii) immediately before and after giving effect to such transaction
or series of transactions, no Default or Event of Default shall have occurred
and be continuing.
(b) In connection with any consolidation, merger or transfer
contemplated by this provision, the Company shall deliver, or cause to be
delivered, to the Trustee, in form and substance reasonably satisfactory to the
Trustee, an Officers' Certificate and an Opinion of Counsel, each stating that
such consolidation, merger or transfer and the supplemental indenture in respect
thereto comply with this provision and that all conditions precedent herein
provided for relating to such transaction or transactions have been complied
with.
Section 1102. Successor Corporation Substituted.
Upon any consolidation by the Company with or merger by the company into
any other
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corporation or corporations or any conveyance, transfer or lease of the
properties and assets of the Company substantially as an entirety in accordance
with Section 1101, the successor corporation or corporations formed by such
consolidation or into which the Company is merged or the Person or Persons to
which such conveyance, transfer or lease is made shall succeed to, and be
substituted for, and may exercise every right and power of, the Company under
this Indenture with the same effect as if such successor Person or Persons had
been named as the Company herein, and thereafter, except in the case of a lease,
the predecessor Person or Persons shall be relieved of all obligations and
covenants under this Indenture and the Securities Outstanding hereunder.
ARTICLE TWELVE
Supplemental Indentures
Section 1201. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company and the Trustee, at any
time and from time to time, may enter into one or more indentures supplemental
hereto, in form satisfactory to the Trustee, for any of the following purposes:
(a) to evidence the succession of another Person to the Company and the
assumption by any such successor of the covenants of the Company herein and in
the Securities, all as provided in Article Eleven; or
(b) to add to the covenants of the Company for the benefit of the Holders
of all or any series of Securities, or any Tranche thereof (and if such
covenants are to be for the benefit of less than all of the Securities, stating
that such covenants are expressly being included solely for the benefit of such
series or Tranche) or to surrender any right or power herein conferred upon the
Company; or
(c) to add any additional Events of Default with respect to all or any
series of Securities Outstanding hereunder; or
(d) to change or eliminate any provision of this Indenture or to add any
new provision to this Indenture; provided, however, that if such change,
elimination or addition shall adversely affect the interests of the Holders of
Securities of any series or Tranche in any material respect, such change,
elimination or addition shall become effective with respect to such series or
Tranche only when no Security of such series or Tranche remains Outstanding; or
(e) to provide collateral security for the Securities; or
(f) to establish the form or terms of Securities of any series or Tranche
as
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contemplated by Sections 201 and 301; or
(g) to evidence and provide for the acceptance of appointment hereunder by
a separate or successor Trustee with respect to the Securities of one or more
series and to add to or change any of the provisions of this Indenture as shall
be necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, pursuant to the requirements of Section
911(b); or
(h) to provide for the procedures required to permit the Company to
utilize, at its option, a non-certificated system of registration for all, or
any series or Tranche of, the Securities; or
(i) to change any place or places where (1) the principal of
and premium, if any, and interest, if any, on all or any series of
Securities, or any Tranche thereof, shall be payable, (2) all or any
series of Securities, or any Tranche thereof, may be surrendered for
registration of transfer, (3) all or any series of Securities, or any
Tranche thereof, may be surrendered for exchange and (4) notices and
demands to or upon the Company in respect of all or any series of
Securities, or any Tranche thereof, and this Indenture may be served;
provided, however, that any such place is located in New York, New
York, Chicago, Illinois or in any other city located in the United
States of America which has a population of at least 1,000,000
inhabitants; or
(j) to cure any ambiguity, to correct or supplement any
provision herein which may be defective or inconsistent with any other
provision herein, or to make any other provisions with respect to
matters or questions arising under this Indenture, provided that such
other provisions shall not adversely affect the interests of the
Holders of Securities of any series or Tranche in any material respect.
Without limiting the generality of the foregoing, if the Trust
Indenture Act shall be amended at any time or times after the date of the
execution and delivery of this Indenture and:
(x) if any such amendment shall require one or more changes to any
provisions hereof or the inclusion herein of any additional provisions, or shall
by operation of law be deemed to effect such changes or incorporate such
provisions by reference or otherwise, this Indenture shall be deemed to have
been amended so as to conform to such amendment to the Trust Indenture Act, and
the Company and the Trustee may, without the consent of any Holders, enter into
an indenture supplemental hereto to effect or evidence such changes or
additional provisions; or
(y) if any such amendment shall permit one or more changes to, or the
elimination of, any provisions hereof which, at the date of the execution and
delivery hereof or at any time thereafter, are required by the Trust Indenture
Act to be contained herein this Indenture shall be deemed to have been amended
to effect such changes or elimination, and the Company and the Trustee may,
without the consent of any Holders, enter into an indenture supplemental hereto
to
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effect such changes or elimination; or
(z) if, by reason of any such amendment, one or more provisions which,
at the date of the execution and delivery hereof or at any time thereafter, are
required by the Trust Indenture Act to be contained herein shall be deemed to be
incorporated herein by reference or otherwise, or otherwise made applicable
hereto, and shall no longer be required to be contained herein, the Company and
the Trustee may, without the consent of any Holders, enter into an indenture
supplemental hereto to effect the elimination of such provisions.
Section 1202. Supplemental Indentures With Consent of Holders.
With the consent of the Holders of not less than a majority in
aggregate principal amount of the Securities of all series then Outstanding
under this Indenture, considered as one class, by Act of said Holders delivered
to the Company and the Trustee, the Company, when authorized by a Board
Resolution, and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to, or changing in
any manner or eliminating any of the provisions of, this Indenture; provided,
however, that if there shall be Securities of more than one series Outstanding
hereunder and if a proposed supplemental indenture shall directly affect the
rights of the Holders of Securities of one or more, but less than all, of such
series, then the consent only of the Holders of a majority in aggregate
principal amount of the Outstanding Securities of all series so directly
affected, considered as one class, shall be required; and provided, further,
that if the Securities of any series shall have been issued in more than one
Tranche and if the proposed supplemental indenture shall directly affect the
rights of the Holders of Securities of one or more, but less than all, of such
Tranches, then the consent only of the Holders of a majority in aggregate
principal amount of the Outstanding Securities of all Tranches so directly
affected, considered as one class, shall be required; and provided, further,
that no such supplemental indenture shall, without the consent of the Holder of
each Outstanding Security of each series or Tranche so directly affected,
(a) change the Stated Maturity of the principal of, or any
installment of principal of or interest on, any Security, or reduce the
principal amount thereof or the rate of interest thereon or the method
of calculating such rate (or the amount of any installment of interest
thereon) or any premium payable upon the redemption thereof, or reduce
the amount of the principal of a Discount Security that would be due
and payable upon a declaration of acceleration of the Maturity thereof
pursuant to Section 802, or change the coin or currency (or other
property) in which, any Security or any premium or the interest thereon
is payable, or impair the right to institute suit for the enforcement
of any such payment on or after the Stated Maturity thereof (or, in the
case of redemption, on or after the Redemption Date), or
(b) reduce the percentage in principal amount of the
Outstanding Securities of such series or Tranche, the consent of whose
Holders is required for any such supplemental indenture, or the consent
of whose Holders is required for any waiver of
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compliance with any provision of this Indenture or of any default
hereunder and its consequences, or reduce the requirements of Section
1304 for quorum or voting, or
(c) modify any of the provisions of this Section, Section 607
or Section 813, except to increase the percentages in principal amount
referred to in this Section or such other Sections or to provide that
other provisions of this Indenture cannot be modified or waived without
the consent of the Holder of each Outstanding Security affected
thereby; provided, however, that this clause shall not be deemed to
require the consent of any Holder with respect to changes in the
references to "the Trustee" and concomitant changes in this Section, or
the deletion of this proviso, in accordance with the requirements of
Sections 911(b) and 1201(g).
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or of one or more
Tranches thereof, or which modifies the rights of the Holders of Securities of
such series or Tranches with respect to such covenant or other provision, shall
be deemed not to affect the rights under this Indenture of the Holders of
Securities of any other series or Tranche.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form or any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
Section 1203. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 901) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties, immunities or liabilities under this Indenture or
otherwise.
Section 1204. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby. Any supplemental indenture permitted by this Article may
restate this Indenture in its entirety, and, upon the execution and delivery
thereof, any such restatement shall supersede this Indenture as theretofore in
effect for all purposes.
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Section 1205. Conformity With Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
Section 1206. Reference in Securities to Supplemental Indentures.
Securities of any series, or any Tranche thereof, authenticated and
delivered after the execution of any supplemental indenture pursuant to this
Article may, and shall if required by the Trustee, bear a notation in form
approved by the Trustee as to any matter provided for in such supplemental
indenture. If the Company shall so determine, new Securities of any series, or
any Tranche thereof, so modified as to conform, in the opinion of the Trustee
and the Company, to any such supplemental indenture may be prepared and executed
by the Company and authenticated and made available for delivery by the Trustee
in exchange for Outstanding Securities of such series or Tranche.
Section 1207. Modification without Supplemental Indenture.
If the terms of any particular series of Securities shall have been
established in a Board Resolution or an Officers' Certificate pursuant to a
Board Resolution as contemplated by Section 301, and not in an indenture
supplemental hereto, addition to, changes in or the elimination of any of such
terms may be affected by means of a supplemental Board Resolution or Officers'
Certificate, as the case may be, delivered to, and accepted by, the Trustee;
provided, however, that such supplemental Board Resolution or Officers'
Certificate shall not be accepted by the Trustee or otherwise be effective
unless all conditions set forth in this Indenture which would be required to be
satisfied if such additions, changes or elimination were contained in a
supplemental indenture shall have been appropriately satisfied. Upon the
acceptance thereof by the Trustee, any such supplemental Board Resolution or
Officers' Certificate shall be deemed to be a "supplemental indenture" for
purposes of Section 1204 and 1206.
ARTICLE THIRTEEN
Meetings of Holders; Action Without Meeting
Section 1301. Purposes for Which Meetings May Be Called.
A meeting of Holders of Securities of one or more, or all, series, or
any Tranche or Tranches thereof, may be called at any time and from time to time
pursuant to this Article to make, give or take any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be made, given or taken by Holders of Securities of such
series or Tranches.
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Section 1302. Call, Notice and Place of Meetings.
(a) The Trustee may at any time call a meeting of Holders of Securities
of one or more, or all, series, or any Tranche or Tranches thereof, for any
purpose specified in Section 1301, to be held at such time and at such place in
the Borough of Manhattan, The City of New York, as the Trustee shall determine,
or, with the approval of the Company, at any other place. Notice of every such
meeting, setting forth the time and the place of such meeting and in general
terms the action proposed to be taken at such meeting, shall be given, in the
manner provided in Section 106, not less than 21 nor more than 180 days prior to
the date fixed for the meeting.
(b) If the Trustee shall have been requested to call a meeting of the
Holders of Securities of one or more, or all, series, or any Tranche or Tranches
thereof, by the Company or by the Holders of 25% in aggregate principal amount
of all of such series and Tranches, considered as one class, for any purpose
specified in Section 1301 by written request setting forth in reasonable detail
the action proposed to be taken at the meeting, and the Trustee shall not have
given the notice of such meeting within 21 days after receipt of such request or
shall not thereafter proceed to cause the meeting to be held as provided herein,
then the Company or the Holders of Securities of such series and Tranches in the
amount above specified, as the case may be, may determine the time and the place
in the Borough of Manhattan, The City of New York, or in such other place as
shall be determined or approved by the Company, for such meeting and may call
such meeting for such purposes by giving notice thereof as provided in
subsection (a) of this Section.
(c) Any meeting of Holders of Securities of one or more, or all,
series, or any Tranche or Tranches thereof, shall be valid without notice if the
Holders of all Outstanding Securities of such series or Tranche are present in
person or by proxy and if representatives of the Company and the Trustee are
present, or if notice is waived in writing before or after the meeting by the
Holders of all Outstanding Securities of such series, or by such of them as are
not present at the meeting in person or by proxy, and by the Company and the
Trustee.
Section 1303. Persons Entitled to Vote at Meetings.
To be entitled to vote at any meeting of Holders of Securities of one
or more, or all, series, or any Tranche or Tranches thereof, a Person shall be
(a) a Holder of one or more Outstanding Securities of such series or Tranche, or
(b) a Person appointed by an instrument in writing as proxy for a Holder or
Holders of one or more Outstanding Securities of such series or Tranches by such
Holder or Holders. The only Persons who shall be entitled to attend any meeting
of Holders of Securities of any series or Tranche shall be the Persons entitled
to vote at such meeting and their counsel, any representatives of the Trustee
and its counsel and any representatives of the Company and its counsel.
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Section 1304. Quorum, Action.
The Persons entitled to vote a majority in aggregate principal amount
of the Outstanding Securities of the series and Tranches with respect to which a
meeting shall have been called as hereinbefore provided, considered as one
class, shall constitute a quorum for a meeting of Holders of Securities of such
series and Tranches; provided, however, that if any action is to be taken at
such meeting which this Indenture expressly provides may be taken by the Holders
of a specified percentage, which is less than a majority, in principal amount of
the Outstanding Securities of such series and Tranches, considered as one class,
the Persons entitled to vote such specified percentage in principal amount of
the Outstanding Securities of such series and Tranches, considered as one class,
shall constitute a quorum. In the absence of a quorum within one hour of the
time appointed for any such meeting, the meeting shall, if convened at the
request of Holders of Securities of such series and Tranches, be dissolved. In
any other case the meeting may be adjourned for a period of not less than 10
days as determined by the chairman of the meeting prior to the adjournment of
such meeting. In the absence of a quorum at any such adjourned meeting, such
adjourned meeting may be further adjourned for a period of not less than 10 days
as determined by the chairman of the meeting prior to the adjournment of such
adjourned meeting. Except as provided by Section 1305(e), notice of the
reconvening of any adjourned meeting shall be given as provided in Section
1302(a) not less than five days prior to the date on which the meeting is
scheduled to be reconvened. Notice of the reconvening of an adjourned meeting
shall state expressly the percentage, as provided above, of the principal amount
of the Outstanding Securities of such series and Tranches which shall constitute
a quorum.
Except as limited by Section 1202, any resolution presented to a
meeting or adjourned meeting duly reconvened at which a quorum is present as
aforesaid may be adopted only by the affirmative vote of the Holders of a
majority in aggregate principal amount of the Outstanding Securities of the
series and Tranches with respect to which such meeting shall have been called,
considered as one class; provided, however, that, except as so limited, any
resolution with respect to any action which this Indenture expressly provides
may be taken by the Holders of a specified percentage, which is less than a
majority, in principal amount of the Outstanding Securities of such series and
Tranches, considered as one class, may be adopted at a meeting or an adjourned
meeting duly reconvened and at which a quorum is present as aforesaid by the
affirmative vote of the Holders of such specified percentage in principal amount
of the Outstanding Securities of such series and Tranches, considered as one
class.
Any resolution passed or decision taken at any meeting of Holders or
Securities duly held in accordance with this Section shall be binding on all the
Holders of Securities of the series and Tranches with respect to which such
meeting shall have been held, whether or not present or represented at the
meeting.
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Section 1305. Attendance at Meetings; Determination of Voting Rights;
Conduct and Adjournment of Meetings.
(a) Attendance at a meeting of Holders of Securities may be in person
or by proxy; and, to the extent permitted by law, any such proxy shall remain in
effect and be binding upon any future Holder of the Securities with respect to
which it was given unless and until specifically revoked by the Holder or future
Holder of such Securities before being voted.
(b) Notwithstanding any other provisions of this Indenture, the Trustee
may make such reasonable regulations as it may deem advisable for any meeting of
Holders of Securities in regard to proof of the holding of such Securities and
of the appointment of proxies and in regard to the appointment and duties of
inspectors of votes, the submission and examination of proxies, certificates and
other evidence of the right to vote, and such other matters concerning the
conduct of the meeting as it shall deem appropriate. Except as otherwise
permitted or required by any such regulations, the holding of Securities shall
be proved in the manner specified in Section 104 and the appointment of any
proxy shall be proved in the manner specified in Section 104. Such regulations
may provide that written instruments appointing proxies, regular on their face,
may be presumed valid and genuine without the proof specified in Section 104 or
other proof.
(c) The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by Holders as provided in Section 1302 (b), in which case the Company
or the Holders of Securities of the series and Tranches calling the meeting, as
the case may be, shall in like manner appoint a temporary chairman. A permanent
chairman and permanent secretary of the meeting shall be elected by vote of the
Persons entitled to vote a majority in aggregate principal amount of the
Outstanding Securities of all series and Tranches represented at the meeting,
considered as one class.
(d) At any meeting each Holder or proxy shall be entitled to one vote
for each $1,000 principal amount of Securities held or represented by him;
provided, however, that no vote shall be cast or counted at any meeting in
respect of any Security challenged as not Outstanding and ruled by the chairman
of the meeting to be not Outstanding. The chairman of the meeting shall have no
right to vote, except as a Holder of a Security or proxy.
(e) Any meeting duly called pursuant to Section 1302 at which a quorum
is present may be adjourned from time to time by Persons entitled to vote a
majority in aggregate principal amount of the Outstanding Securities of all
series and Tranches represented at the meeting, considered as one class; and the
meeting may be held as so adjourned without further notice.
Section 1306. Counting Votes and Recording Action of Meeting.
The vote upon any resolution submitted to any meeting of Holders shall
be by written ballots on which shall be subscribed the signatures of the Holders
or of their representatives by proxy and the principal amounts and serial
numbers of the Outstanding Securities, of the series
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and Tranches with respect to which the meeting shall have been called, held or
represented by them. The permanent chairman of the meeting shall appoint two
inspectors of votes who shall count all votes cast at the meeting for or against
any resolution and who shall make and file with the secretary of the meeting
their verified written reports of all votes cast at the meeting. A record of the
proceedings of each meeting of Holders shall be prepared by the secretary of the
meeting and there shall be attached to said record the original reports of the
inspectors of votes on any vote by ballot taken thereat and affidavits by one or
more persons having knowledge of the facts setting forth a copy of the notice of
the meeting and showing that said notice was given as provided in Section 1302
and, if applicable, Section 1304. Each copy shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one such
copy shall be delivered to the Company, and another to the Trustee to be
preserved by the Trustee, the latter to have attached thereto the ballots voted
at the meeting. Any record so signed and verified shall be conclusive evidence
of the matters therein stated.
Section 1307. Action Without Meeting.
In lieu of a vote of Holders at a meeting as hereinbefore contemplated
in this Article, any request, demand, authorization, direction, notice, consent,
waiver or other action may be made, given or taken by Holders by written
instruments as provided in Section 104.
ARTICLE FOURTEEN
Immunity of Incorporators, Stockholders, Officers and Directors
Section 1401. Liability Solely Corporate.
No recourse shall be had for the payment of the principal of or
premium, if any, or interest, if any, on any Securities, or any part thereof, or
for any claim based thereon or otherwise in respect thereof, or of the
indebtedness represented thereby, or upon any obligation, covenant or agreement
under this Indenture, against any incorporator, stockholder, officer or
director, as such, past, present or future of the Company or of any predecessor
or successor corporation (either directly or through the Company or a
predecessor or successor corporation), whether by virtue of any constitutional
provision, statute or rule of law, or by the enforcement of any assessment or
penalty or otherwise; it being expressly agreed and understood that this
Indenture and all the Securities are solely corporate obligations, and that no
personal lability whatsoever, shall attach to, or be incurred by, any
incorporator, stockholder, officer or director, past, present or future, of the
Company or of any predecessor or successor corporation, either directly or
indirectly through the Company or any predecessor or successor corporation,
because of the indebtedness hereby authorized or under or by reason of any of
the obligations, covenants or agreements contained in this Indenture or in any
of the Securities or to be implied here from or therefrom, and that any such
personal liability is hereby expressly waived and released as a condition of,
and as part of the consideration for, the execution of this Indenture and the
issuance of the Securities.
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ARTICLE FIFTEEN
Holders' Lists and Reports by Trustee and Company
Section 1501. Company to Furnish Trustee Names and Addresses of Holders.
The Company shall furnish or cause to be furnished to the Trustee
(a) semi-annually, not more than 15 days after each Regular
Record Date for a series of Securities, a list, in such form as the
Trustee may reasonably require, containing all the information in the
possession or control of the Company, or any of its Paying Agents other
than the Trustee, as to the names and addresses of the Holders of
Securities of such series as of such Regular Record Date, and
(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request, a
list of similar form and content as of date not more than 15 days prior
to the time such list is furnished;
excluding from any such list names and addresses received by the Trustee in its
capacity as Security Registrar.
Section 1502. Preservation of Information; Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders (1) contained in the most recent
list furnished to the Trustee as provided in Section 1501 and (2) received by
the Trustee in any other capacity. The Trustee may (1) destroy any list
furnished to it as provided in Section 1501 upon receipt of a new list so
furnished, (2) destroy any information received by it as Paying Agent (if so
acting) hereunder upon delivering to itself as Trustee, not earlier than [August
15 or February 14], a list containing the names and addresses of the Holders
obtained from such information since the delivery of the next previous list, if
any, and (3) destroy any list delivered to itself as Trustee which was complied
from information received by it as Paying Agent (if so acting) hereunder upon
the receipt of a new list so delivered.
(b) If three or more Holders (herein referred to as "applicants") apply
in writing to the Trustee, and furnish to the Trustee reasonable proof that each
such applicant has owned a Security for a period of at least six months
preceding the date of such application, and such application states that the
applicants desire to communicate with other Holders with respect to their rights
under this Indenture or under the Securities and is accompanied by a copy of the
form of proxy or other communication which such applicants propose to transmit,
then the Trustee shall, within five Business Days after the receipt of such
application, at its election, either
(1) afford such applicants access to the information preserved at the time
by the
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Trustee in accordance with Section 1502(a), or
(2) inform such applicants as to the approximate number of Holders whose
names and addresses appear in the information preserved at the time by the
Trustee in accordance with Section 1502(a), and as to the approximate cost of
mailing to such Holders the form of proxy or other communication, if any,
specified in such application.
If the Trustee shall elect not to afford such applicants access to such
information, the Trustee shall, upon the written request of such applicants,
mail to each Holder whose name and address appear in the information preserved
at the time by the Trustee in accordance with Section 1502(a) a copy of the form
of proxy or other communication which is specified in such request, with
reasonable promptness after a tender to the Trustee by such applicants of the
material to be mailed and of payment, or provision for the payment, of the
reasonable expenses of mailing, unless within five days after such tender the
Trustee shall mail to such applicants and file with the Commission, together
with a copy of the material to be mailed, a written statement to the effect
that, in the opinion of the Trustee, such mailing would be contrary to the best
interest of the Holders or would be in violation of applicable law. Such written
statement shall specify the basis of such opinion. If the Commission, after
opportunity for a hearing upon the objections specified in the written statement
so filed, shall enter an order refusing to sustain any of such objections or if,
after the entry of an order sustaining one or more of such objections, the
Commission shall find, after notice and opportunity for hearing, that all the
objections so sustained have been met and shall enter an order so declaring, the
Trustee shall mail copies of such material to all such Holders with reasonable
promptness after the entry of such order and the renewal of such tender by such
applicants as aforesaid; otherwise the Trustee shall be relieved of any
obligation or duty to such applicants respecting their application.
(c) Every Holder of Securities, by receiving and holding the same,
shall be deemed to have agreed with the Company and the Trustee that neither the
Company nor the Trustee nor any agent of either of them shall be held
accountable by reason of the disclosure of any such information as to the names
and addresses of the Holders in accordance with Section 1502(b), regardless of
the source from which such information was derived, and that the Trustee shall
not be held accountable by reason of mailing any material pursuant to a request
made under Section 1502(b).
Section 1503. Reports by Trustees.
(a) The Trustees shall transmit to the Holders as hereinafter provided,
at stated intervals of not more than 12 months, a brief report with respect to
any of the following events which may have occurred within the previous 12
months (but if no such event has occurred within such period, no report need be
transmitted):
(1) any change in its eligibility and its qualifications under Section 908;
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(2) the creation of or any material change to a relationship specified in
paragraph (1) through (10) of Section 310(b) of the Trust Indenture Act;
(3) the character and amount of any advances (and if the Trustee elects so
to state, the circumstances surrounding the making thereof) made by the Trustee
(as such) which remain unpaid on the date of such report, and for the
reimbursement of which it claims or may claim a lien or charge, prior to that of
the Securities, on any property or funds held or collected by it as Trustee,
except that the Trustee shall not be required (but may elect) to report such
advances if such advances so remaining unpaid aggregate not more than 1/2 of 1%
of the principal amount of the Securities Outstanding on the date of such
report;
(4) any change to the amount, interest rate and maturity date of all other
Indebtedness owing by the Company (or by any other obligor on the Securities) to
the Trustee in its individual capacity, on the date of such report, with a brief
description of any property held as collateral security therefor, except an
indebtedness based upon a creditor relationship arising in any manner described
in Section 913(b)(2), (3), (4) or (6);
(5) any change to the property and funds, if any, physically in the
possession of the Trustee as such on the date of such report;
(6) any release, or release and substitution, of property subject to the
Lien of this Indenture (and the consideration therefor, if any) which it has not
previously reported;
(7) any additional issue of Securities which the Trustee has not previously
reported; and
(8) any action taken by the Trustee in the performance of its duties
hereunder which it has not previously reported and which in its opinion
materially affects the Securities or the Securities of any series, except action
in respect of a default, notice of which has been or is to be withheld by the
Trustee in accordance with Section 902.
(b) The Trustee shall transmit to the Holders, as provided in subsection
(c) of this Section, a brief report with respect to the character and amount of
any advances (and if the Trustee elects so to state, the circumstances
surrounding the making thereof) made by the Trustee (as such) since the date of
the last report transmitted pursuant to subsection (a) of this Section (or if no
such report has yet been so transmitted, since the date of execution of this
Indenture) for the reimbursement of which it claims or may claim a Lien or
charge, prior to that of the Securities, on property or funds held or collected
by it as Trustee and which it has not previously reported pursuant to this
subsection, except that the Trustee shall not be required (but may elect) to
report such advances if such advances remaining unpaid at any time aggregate 10%
or less of the principal amount of the Securities Outstanding at such time, such
report to be transmitted within 90 days after such time.
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(c) Reports pursuant to this Section shall be transmitted by mail;
(1) to all Holders, as their names and addresses appear in the Security
Register; and
(2) to such Holders as have, within two years preceding such transmission,
filed their names and addresses with the Trustee for that purpose; and
(3) except in the case of reports pursuant to subsection (b) of this
Section, to each Holder whose name and address is preserved at the time by the
Trustee, as provided in Section 1502(a).
(d) A copy of each such report shall, at the time of such transmission to
Holders, be filed by the Trustee with each stock exchange upon which any
Securities are listed, with the Commission and with the Company. The Company
will promptly notify the Trustee when any Securities are listed on any stock
exchange.
Section 1504. Reports by Company.
The Company shall:
(a) file with the Trustee, within 45 days after the Company is
required to file the same with the Commission, copies of the annual
reports and of the information, documents and other reports (or copies
of such portions of any of the foregoing as the Commission may from
time to time by rules and regulations prescribe) which the Company may
be required to file with the Commission pursuant to Section 13 or
Section 15(d) of the Exchange Act; or, if the Company is not required
to file information, documents or reports pursuant to either of said
Sections, then it shall file with the Trustee and the Commission, in
accordance with the rules and regulations prescribed from to time by
the Commission, such of the supplementary and periodic information,
documents and reports which may be required pursuant to Section 13 of
the Exchange Act in respect of a security listed and registered on a
national securities exchange as may be prescribed from time to time in
such rules and regulations;
(b) file with the Trustee and the Commission, in accordance
with rules and regulations prescribed from time to time by the
Commission, such additional information, documents and reports with
respect to compliance by the Company with the conditions and covenants
of this Indenture as may be required from time to time by such rules
and regulations; and
(c) transmit, within 30 days after the filing thereof with the
Trustee, to the Holders, in the manner and to the extent provided in
Section 1503(c) with respect to
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reports pursuant to Section 1503(a), such summaries of any information,
documents and reports required to be filed by the Company pursuant to
paragraphs (a) and (b) of this Section as may be required by rules and
regulations prescribed from time to time by the Commission.
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This instrument may be executed in any number of counterparts,
each of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed, all as of the day and year first above written
360 COMMUNICATIONS COMPANY
By:
Title:
(SEAL)
Attest:
Title:
CITIBANK, N.A., Trustee
By:
Title:
(SEAL)
Attest:
Title:
[FORM OF DEBT SECURITY]
[Unless this certificate is presented by an authorized representative
of The Depository Trust Company (the "Depositary") to the Company or its agent
for registration of transfer, exchange or payment, and any certificate to be
issued is registered in the name of Cede & Co. or such other such name as
requested by an authorized representative of the Depositary and any amount
payable thereunder is made payable to Cede & Co. or such other name, ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL since the registered owner hereof, Cede & Co., has an interest
herein.
Unless and until this Security is exchanged in whole or in part for
certificated Securities registered in the names of the various beneficial
holders hereof as then certified to the Company by the Depositary or a successor
depositary, this Security may not be transferred except as a whole by the
Depositary to a nominee of the Depositary or by a nominee of the Depositary to
the Depositary or another nominee of the Depositary or by the Depositary or any
such nominee to successor depositary or a nominee of such successor depositary.
This Security may be exchanged for certificated Securities registered
in the names of the various beneficial owners hereof only if (a) the Depositary
is at any time unwilling or unable to continue as depositary and as a successor
depositary is not appointed by the company within 90 days, or (b) the Company
elects to issue certificated Securities to beneficial owners (as certified to
the Company by the Depositary or a successor depositary) of all Securities of
the series designated below.]
<PAGE>
[FACE OF SECURITY]
360 COMMUNICATIONS COMPANY
[ ]% Senior Note Due [ ]
No. _______________ Principal Amount
$--------------
CUSIP
360 COMMUNICATIONS COMPANY, a corporation duly organized and existing
under the laws of the State of Delaware (herein called the "Company") which term
includes any successor corporation under the Indenture referred to on the
reverse hereof), for value received, hereby promises to pay to
, or
registered assigns, the principal sum of
Dollars
on [ ], and to pay interest thereon from [ ] or from the most recent Interest
Payment Date to which interest has been paid or duly provided for, semi-annually
in arrears on [ ] and [ ] in each year (each, an "Interest Payment Date"),
commencing on [ ], and at Maturity, at the rate of [ ]% (the "Interest Rate")
per annum, until the principal hereof is paid or duly provided for. Each payment
of interest in respect of an Interest Payment Date shall include interest
accrued through the day prior such Interest Payment Date. The interest so
payable, and paid or duly provided for, on any Interest Payment Date shall, as
provided in the Indenture, be paid to the Person in whose name this Security (or
one or more Predecessor Securities) is registered at the close of business on
the Regular Record Date for such interest, which shall be [ ] or [ ] (whether or
not a Business Day), as the case may be, next preceding such Interest Payment
Date. Interest shall be computed on the basis of a 360-day year consisting of
twelve 30-day months.
Notwithstanding the foregoing, interest payable at Maturity shall be
paid to the Person to whom principal shall be paid. Except as otherwise provided
in the Indenture, any such interest not so paid or duly provided for shall
forthwith cease to be payable to the Holder on the related Regular Record Date
and may either be paid to the Person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest to be fixed by the
Trustee, notice whereof shall be given to Holders of Securities of this series
not less than 10 days prior to such Special Record Date, or be paid at any time
in any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities of this series may be listed, and
upon such notice as may be required by such exchange, all as more fully provided
in the Indenture.
<PAGE>
To the extent lawful, the Company shall pay interest on (i) any overdue
principal of and premium, if any, on this Security, at the interest rate borne
on this Security, plus 1% per annum, and (ii) Defaulted Interest (without regard
to any applicable grace period), at the same rate. The Company's obligation
pursuant to the previous sentence shall apply whether such overdue amount is due
at its Stated Maturity, as a result of the Company's obligations pursuant to
Section 1001 of the Indenture, or otherwise.
If any Interest Payment Date, any applicable Redemption Date, any
Change of Control Payment Date or the Stated Maturity Date shall not be a
Business Day (as hereinafter defined), payment of the amount due on this
Security on such date may be made on the next succeeding Business Day; and, if
such payment is made or duly provided for on such Business Day, no interest
shall accrue on such amounts for the period from and after such Interest Payment
Date, applicable Redemption Date, any Change of Control Payment Date or Stated
Maturity Date, as the case may be, to such Business Day.
Payment of the principal of and premium, if any, on this Security and
interest hereon at Maturity shall be made upon presentation hereof at the office
of Citibank, N.A. in New York, New York or at such other office or agency as may
be designated for such purpose by the Company from time to time. Payment of
interest, if any, on this Security (other than interest at Maturity) shall be
made by check mailed to the address of the Person entitled thereto as such
address shall appear in the Security Register. Payment of the principal of and
premium, if any, and interest, if any, on this Security, as aforesaid, shall be
made in such coin or currency of the United States of America as at the time of
payment shall be legal tender for the payment of public and private debts.
-2-
<PAGE>
[REVERSE OF SECURITY]
This Security is one of a duly authorized issue of unsecured senior
securities of the Company (herein called the "Securities"), issued and issuable
in one or more series under an Indenture, dated as of [ ], 1997 (such Indenture
as originally executed and delivered and as hereafter supplemented or amended,
together with any constituent instruments establishing the terms of particular
Securities, being herein called the "Indenture"), between the Company and
Citibank N.A., as trustee (herein called the "Trustee") which term includes any
successor trustees under the Indenture), to which Indenture and all indentures
supplemental thereto reference is hereby made for a statement of the respective
rights, limitations of rights, duties and immunities thereunder of the Company,
the Trustee and the Holders of the Securities and of the terms upon which the
Securities are, and are to be, authenticated and delivered. The acceptance of
this Security shall be deemed to constitute the consent and agreement of the
Holder hereof to all of the terms and provisions of the Indenture. This Security
is one of the series designated on the face hereof. All terms used in this
Security which are not defined herein shall have the meaning assigned to them in
the Indenture.
Upon the occurrence of a Change of Control Triggering Event with
respect to the Securities of this series, each Holder of Securities of this
series shall have the right to require the Company to purchase such Holder's
Securities, in whole or in part, in principal amount that is an integral
multiple of $1,000, pursuant to a Change of Control Offer, at a purchase price
in cash equal to 101% of the principal amount thereof on any Change of Control
Payment Date plus accrued and unpaid interest, if any, to the Change of Control
Payment Date.
Within 30 calendar days following any Change of Control Triggering
Event with respect to the Securities of this series, the Company shall send, or
cause to be sent, by first-class mail, postage prepaid, a notice regarding the
Change of Control Offer to the Trustee and each Holder of Securities of this
series. The Holder of this Security may elect to have this Security or a portion
hereof in an authorized denomination purchased by completing the form entitled
"Option of Holder to Elect Purchase" appearing below and tendering this Security
pursuant to the Change of Control Offer. Unless the Company defaults in the
payment of the Change of Control Purchase Price with respect thereto, all
Securities or portions thereof accepted for payment pursuant to the Change of
Control Offer will cease to accrue interest from and after the Change of Control
Payment Date.
[Provisions for redemption at the option of the Company or pursuant to a
sinking fund or analogous provisions or at the option of the Holder to be
inserted here.]
[Notice of redemption [(other than at the election of the Holder)]
shall be given by mail to Holders of Securities, not less than 30 days nor more
than 60 days prior to the date fixed for
-3-
<PAGE>
redemption, all as provided in the Indenture. As provided in the Indenture,
notice of redemption at the election of the Company as aforesaid may state that
such redemption shall be conditional upon the receipt by the Trustee of money
sufficient to pay the principal of and premium, if any, and interest, if any, on
this Security on or prior to the date fixed for such redemption; a notice of
redemption so conditioned shall be of no force or effect if such money is not so
received and, in such event, the Company shall not be required to redeem this
Security.
In the event of redemption of this Security in part only, a new
Security or Securities of this series, of like tenor, for the unredeemed portion
hereof will be issued in the name of the Holder hereof upon the cancellation
hereof.]
If an Event of Default with respect to Securities of this series shall
occur and be continuing, the principal of this Security may be declared due and
payable in any manner and with the effect provided in the Indenture.
The Indenture permits, with certain exceptions as thereby provided, the
Trustee to enter into one or more supplemental indentures for the purpose of
adding any provisions to, or changing in any manner or eliminating any of the
provisions of, the Indenture with the consent of the Holders of not less than a
majority in aggregate principal amount of the Securities of all series then
Outstanding under the Indenture, considered as one class; provided, however,
that if there shall be Securities of more than one series Outstanding under the
Indenture and if a proposed supplemental indenture shall directly affect the
rights of the Holders of Securities of one or more, but less than all, of such
series, then the consent only of the Holders of a majority in aggregate
principal amount of the Outstanding Securities of all series so directly
affected, considered as one class, shall be required; and provided, further,
that if the Securities of any series shall have been issued in more than one
Tranche and if the proposed supplemental indenture shall directly affect the
rights of the Holders of Securities of one or more, but less than all, of such
Tranches, then the consent only of the Holders of a majority in aggregate
principal amount of the Outstanding Securities of all Tranches so directly
affected, considered as one class, shall be required. The Indenture also
contains provisions permitting the Holders of specified percentages in principal
amount of the Securities then Outstanding, on behalf of the Holders of all
Securities, to waive compliance by the Company with certain provisions of the
Indenture and certain past defaults under the Indenture and their consequences.
Any such content or waiver by the Holder of this Security shall be conclusive
and binding upon such Holder and upon all future Holders of this Security and of
any Security issued upon the registration of transfer hereof or in exchange
therefor or in lieu hereof, whether or not notation of such consent or waiver is
made upon this Security.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of and premium, if any, and
interest, if any, on this Security at the times, place and rate, in the coin or
currency, and in the manner, herein prescribed.
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer
-4-
<PAGE>
of this Security is registrable in the Security Register, upon surrender of this
Security for registration of transfer at the office of Citibank N.A. in New
York, New York or other such office or agency as may be designated by the
Company from time to time, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Company and the Security
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Securities of this series of authorized
denominations and of like tenor and aggregate principal amount, will be issued
to the designated transferee or transferees.
The Securities of this series are issuable only as registered
Securities, without coupons, in denominations of $[________] and any amount in
excess thereof that is an integral multiple of $1,000. As provided in the
Indenture and subject to certain limitations therein set forth, Securities of
this series are exchangeable for a like aggregate principal amount of Securities
of this series, of any authorized denominations, as requested by the Holder
surrendering the same, and of like tenor upon surrender of the Security or
Securities to be exchanged at the office of Citibank N.A. in New York, New York
or other such office or agency as may be designated by the Company from time to
time.
The Company shall not be required to (a) register the transfer of or
exchange Securities of this series during a period of 15 days immediately
preceding the date notice is given identifying the serial numbers of the
Securities of this series called for redemption or (b) to register the transfer
of or exchange any Security so selected for redemption in whole or in part,
except the unredeemed portion of any Security being redeemed in part.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name this Security is registered as the absolute owner
hereof for all purposes, whether or not this Security be overdue, and neither
the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
THE INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
As used herein, "Business Day" means any day, other than a Saturday or
Sunday, which is not a day on which banking institutions or trust companies in
the State of New York or the city in which is located any office or agency
maintained for the purpose of principal of or premium, if any, or interest, if
any, on this Security, are authorized or required by law, regulation or
executive order to remain closed. All other terms used in this Security which
are defined in the Indenture shall have the meanings assigned to them in the
Indenture.
-5-
<PAGE>
As provided in the Indenture, no recourse shall be had for the payment
of the principal of or premium, if any, or interest, if any, on any Securities,
or any part thereof, or for any claim based thereon or otherwise in respect
thereof, or of the Indebtedness represented thereby, or upon any obligation,
covenant or agreement under the Indenture, against and no personal liability
whatsoever shall attach to, or be Incurred by, any incorporator, stockholder,
officer or director, as such, past, present or future of the Company or of any
predecessor or successor corporation (either directly or through the Company or
a predecessor or successor corporation), whether by virtue of any constitutional
provision, statute or rule of law, or by the enforcement of any assessment or
penalty or otherwise; it being expressly agreed and understood that the
Indenture and all of the Securities are solely corporate obligations and that
any such personal liability is hereby expressly waived and released as a
condition of, and as part of the consideration for, the execution of the
Indenture and the issuance of the Securities.
Unless the certificate of authentication hereon has been executed by
the Trustee by manual signature, this Security shall not be entitled to any
benefit under the Indenture or be valid or obligatory for any purpose.
-6-
<PAGE>
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated:
360 COMMUNICATIONS COMPANY
By:
Countersigned:
By:
This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
Dated:
Citibank N.A.,
as Trustee
By:
Authorized Signatory
-7-
<PAGE>
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers
unto
[please insert social security or other
identifying number of assignee]
[please print or type name and address of assignee]
the within Security of 360 COMMUNICATIONS COMPANY and does hereby
irrevocably constitute and appoint , Attorney, to transfer said Security on the
books of the within-mentioned Company, with full power of substitution in the
premises.
Dated:
Notice: The signature to this assignment
must correspond with the name as written
upon the face of the Security in every
particular without alteration or
enlargement or any change whatsoever.
-8-
<PAGE>
OPTION OF HOLDER TO ELECT PURCHASE
(check as appropriate)
[] In connection with the Change of Control Offer made pursuant to Section
1001 of the Indenture, the undersigned hereby elects to have
[] the entire principal amount; or
[] $ ($1,000 in principal amount or an integral
-----------------
multiple thereof) of this Security
repurchased by the Company. The undersigned hereby directs the Trustee
or Paying Agent to pay it or an amount in cash equal to 101% of the
principal amount indicated above plus accrued and unpaid interest
thereon, if any, to the Change of Control Payment Date.
[] In connection with the Prepayment Offer made pursuant to Section 607 of
the Indenture, the undersigned hereby elects to have
[] the entire principal amount; or
[] $ ($1,000 in principal amount or an integral
-----------------
multiple thereof) of this Security
repurchased by the Company. The undersigned hereby directs the Trustee
or Paying Agent to pay it or an amount in cash equal to 100% of the
principal amount indicated above plus accrued and unpaid interest
thereon, if any, to the Purchase Date.
Dated:
Signature of Holder Signature Guaranteed:
Member of Securities Transfer Agent
Medallion Program
NOTICE: The signature to the foregoing must correspond to the name as written
upon the face of this Security in every particular, without alteration or any
change whatsoever.
