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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
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FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
March 17, 1997
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Date of Report (Date of earliest event reported)
360 COMMUNICATIONS COMPANY
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(Exact name of registrant as specified in its charter)
Delaware 1-14108 47-0649117
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(State of Incorporation) (Commission File No.) (IRS Employer Identification No.)
8725 W. Higgins Road, Chicago, Illinois 60631
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(Address of principal executive offices) (Zip Code)
(773) 399-2500
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(Registrant's telephone number, including area code)
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Item 7. Financial Statements and Exhibits.
(c) Exhibits.
1.1 Underwriting Agreement dated as of March 12, 1997.
4.6 Indenture dated as of March 1, 1997 from 360 Communications
Company to Citibank, N.A, as trustee.
4.7 360 Communications Company's 7.60% Senior Note Due 2009.
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SIGNATURE
Pursuant to the requirements of the Securities and Exchange Act of
1934, the registrant has duly caused this report to be signed on its behalf by
the undersigned thereunto duly authorized.
360 COMMUNICATIONS COMPANY
/s/ Gary L. Burge
By:____________________________________
Gary L. Burge
Senior Vice President - Finance
Date: March 17, 1997
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EXHIBIT INDEX
Exhibit
No. Description of Exhibits
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1.1 Underwriting Agreement dated as of March 12, 1997.
4.6 Indenture dated as of March 1, 1997 from 360 Communications
Company to Citibank, N.A, as trustee.
4.7 360 Communications Company's 7.60% Senior Note Due 2009.
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360 COMMUNICATIONS COMPANY
$200,000,000 7.60% Senior Notes Due 2009
Underwriting Agreement
New York, New York
March 12, 1997
Salomon Brothers Inc
Lehman Brothers Inc.
J.P. Morgan Securities Inc.
c/o Salomon Brothers Inc
Seven World Trade Center
New York, NY 10048
Ladies and Gentlemen:
360 Communications Company, a Delaware corporation (the
"Company"), proposes to sell severally to each of the underwriters named in
Schedule I hereto (the "Underwriters") $200,000,000 in aggregate principal
amount of the Company's 7.60% Senior Notes Due 2009 (the "Securities"). The
Company proposes to issue the Securities under an Indenture (the "Indenture")
dated as of March 1, 1997 between the Company and Citibank, N.A., as Trustee
(the "Trustee").
1. Representations and Warranties. The Company represents and
warrants to, and agrees with, each Underwriter as set forth below in this
Section 1. Certain terms used in this Section 1 are defined in paragraph (c)
hereof.
(a) The Company meets the requirements for use of Form S-3
under the Securities Act of 1933, as amended (the "Act"), and has filed
with the Securities and Exchange Commission (the "Commission") a
registration statement (file number 333-21331) on such Form, including
a basic prospectus, for the registration under the Act of the offering
and sale of the Company's debt securities (the "Debt Securities")
and/or warrants to purchase Debt
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Securities, including the Securities. The Company may have filed one or
more amendments thereto, and may have used a Preliminary Final
Prospectus, each of which has previously been furnished to you. Such
registration statement, as so amended, has become effective. The
Company will next file with the Commission pursuant to the applicable
paragraph of Rule 424(b) a final prospectus supplement to the Basic
Prospectus relating to the Securities and the offering thereof. Except
to the extent the Underwriters shall agree in writing to a
modification, such final prospectus supplement shall be in all
substantive respects in the form furnished to the Underwriters prior to
the Execution Time or, to the extent not completed at the Execution
Time, shall contain only such specific additional information and other
changes (beyond that contained in the Basic Prospectus and any
Preliminary Final Prospectus) as the Company has advised the
Underwriters, prior to the Execution Time, will be included or made
therein.
(b) On the Effective Date, the Registration Statement did or
will, and when the Final Prospectus is first filed (if required) in
accordance with Rule 424(b) and on the Closing Date, the Final
Prospectus (and any supplements thereto) will, comply in all material
respects with the applicable requirements of the Act, the Securities
Exchange Act of 1934, as amended (the "Exchange Act") and the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act") and the
respective rules and regulations of the Commission thereunder; on the
Effective Date, the Registration Statement did not or will not contain
any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary in order to make the
statements therein not misleading; on the Effective Date, and on the
Closing Date the Indenture did or will comply in all material respects
with the applicable requirements of the Trust Indenture Act and the
rules and regulations of the Commission thereunder; and, on the
Effective Date, the Final Prospectus, if not filed pursuant to Rule
424(b), did not or will not, and on the date of any filing pursuant to
Rule 424(b) and on the Closing Date, the
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Final Prospectus (together with any supplement thereto) will not,
include any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
provided, however, that the Company makes no representations or
warranties as to (i) that part of the Registration Statement which
shall constitute the Statement of Eligibility and Qualification (Form
T-1) under the Trust Indenture Act of the Trustee or (ii) the
information contained in or omitted from the Registration Statement, or
the Final Prospectus (or any supplement thereto) in reliance upon and
in conformity with information furnished in writing to the Company by
or on behalf of any Underwriter specifically for inclusion in the
Registration Statement or the Final Prospectus (or any supplement
thereto).
(c) The terms which follow, when used in this Agreement, shall
have the meanings indicated. The term "Effective Date" shall mean each
date that the Registra tion Statement and any post-effective amendment
or amendments thereto became or become effective. "Execu tion Time"
shall mean the date and time that this Agreement is executed and
delivered by the parties hereto. "Basic Prospectus" shall mean the
prospectus referred to in paragraph (a) of this Section 1 contained in
the Registration Statement at the Effective Date. "Preliminary Final
Prospectus" shall mean any preliminary prospectus supplement to the
Basic Prospectus which describes the Securities and the proposed
offering thereof and is used prior to filing of the Final Prospectus.
"Final Prospectus" shall mean the prospectus supplement relating to the
Securities that is first filed pursuant to Rule 424(b) after the
Execution Time, together with the Basic Prospectus. "Registration
Statement" shall mean the registration statement referred to in the
first sentence of paragraph (a) of this Section 1, including
incorporated documents, exhibits and financial statements, as amended
at the Execution Time and, in the event any post-effective amendment
thereto becomes effective prior to the Closing Date (as
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hereinafter defined), shall also mean such registration statement as so
amended. "Rule 424(b)" and "Regulation S- K" refer to such rules or
regulations under the Act. Any reference herein to the Registration
Statement, the Basic Prospectus, any Preliminary Final Prospectus or
the Final Prospectus shall be deemed to refer to and include the
documents incorporated by reference therein pursuant to Item 12 of Form
S-3 which were filed under the Exchange Act on or before the Effective
Date of the Registration Statement or the issue date of the Basic
Prospectus, any Preliminary Final Prospectus or the Final Prospectus,
as the case may be; and any reference herein to the terms "amend,"
"amendment" or "supplement" with respect to the Registration Statement,
the Basic Prospectus, any Preliminary Final Prospectus or the Final
Prospectus shall be deemed to refer to and include the filing of any
document under the Exchange Act after the Effective Date of the
Registration Statement or the issue date of the Basic Prospectus, any
Preliminary Final Prospectus or the Final Prospectus, as the case may
be, deemed to be incorporated therein by reference.
2. Purchase and Sale. Subject to the terms and conditions and
in reliance upon the representations and warranties herein set forth, the
Company agrees to sell to each Underwriter, and each Underwriter agrees,
severally and not jointly, to purchase from the Company, the principal amount of
the Securities set forth opposite such Underwriter's name in Schedule I hereto
at a purchase price of 99.163% of the principal amount of the Securities, plus
accrued interest on the Securities from March 17, 1997, to the Closing Date.
3. Delivery and Payment. Delivery of and payment for the
Securities shall be made at 10:00 a.m., New York City time, on March 17, 1997,
or such later date (not later than March 24, 1997) as the Underwriters shall
designate, which date and time may be postponed by agreement between the
Underwriters and the Company or as provided in Section 9 hereof (such date and
time of delivery and payment for the Securities being herein called the "Closing
Date"). Delivery of the Securities shall be made on the instructions of the
Underwriters for the respective accounts of the several
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Underwriters against payment by the several Underwriters of the purchase price
thereof to or upon the order of the Company in immediately available funds.
Delivery of, and payment for, the Securities shall be made through the
facilities of the Depository Trust Company.
4. Offering by Underwriters. It is understood that the
several Underwriters propose to offer the Securities for sale to the public as
set forth in the Final Prospectus.
5. Agreements. The Company agrees with the several
Underwriters that:
(a) Prior to the termination of the offering of the
Securities, the Company will not file any amendment of the Registration
Statement or supplement (including the Final Prospectus) to the Basic
Prospectus without your prior consent, which consent shall not be
unreasonably withheld. Subject to the foregoing sentence, (i) the
Company will cause the Final Prospectus, properly completed, and any
supplement thereto to be filed with the Commission pursuant to the
applicable paragraph of Rule 424(b) within the time period prescribed
therein and will provide evidence satisfactory to the Underwriters of
such timely filing and (ii) the Company will use its best reasonable
efforts to cause any amendment to the Registration Statement to become
effective. The Company will promptly advise the Underwriters (i) when
the Final Prospectus, and any supplement thereto, shall have been filed
with the Commission pursuant to the applicable paragraph of Rule
424(b), (ii) when, prior to termination of the offering of the
Securities, any amendment to the Registration Statement shall have been
filed or become effective, (iii) of any request by the Commission for
any amendment of the Registration Statement or supplement to the Final
Prospectus or for any additional information, (iv) of the issuance by
the Commission of any stop order suspending the effectiveness of the
Registration Statement or the institution or threatening of any
proceeding for that purpose and (v) of the receipt by the Company of
any notification with respect to the suspension of the qualification of
the Securities for
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sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose. The Company will use its best reasonable
efforts to prevent the issuance of any such stop order and, if issued,
to obtain as soon as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the
Securities is required to be delivered under the Act, any event occurs
as a result of which the Final Pro spectus as then supplemented would
include any untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein in the light of
the circumstances under which they were made not misleading, or if it
shall be necessary to amend the Registration Statement or supplement
the Final Prospectus to comply, in all material respects, with the Act
or the Exchange Act or the respective rules and regulations of the
Commission thereunder, the Company promptly will notify the
Underwriters and prepare and file with the Commission, subject to the
first sentence of paragraph (a) of this Section 5, an amendment or
supplement which is reasonably necessary to correct such statement or
omission or effect such compliance.
(c) As soon as practicable, the Company will make generally
available to its security holders and to the Underwriters an earnings
statement or statements of the Company and its subsidiaries which will
satisfy the provisions of Section 11(a) of the Act and Rule 158 under
the Act.
(d) The Company will furnish to the Underwriters and counsel
for the Underwriters, without charge, signed copies of the Registration
Statement (including exhibits thereto) and to each other Underwriter a
copy of the Registration Statement (without exhibits thereto) and, so
long as delivery of a prospectus by an Underwriter or dealer may be
required by the Act, as many copies of each Preliminary Final
Prospectus and the Final Prospectus and any supplement thereto as the
Underwriters may reasonably request. The Company will pay the expenses
of printing
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or other production of all documents relating to the offering.
(e) The Company will cooperate with you and your counsel in
connection with obtaining the qualification of the Securities for sale
under the laws of such jurisdictions in the United States as the
Underwriters may designate, will maintain such qualifications in effect
so long as required for the distribution of the Securities; provided,
however, that the Company shall not be obligated to qualify as a
foreign corporation to do business under the laws of any jurisdiction
in which it shall not then be qualified but for the requirements of
this Section 5(e), to subject itself to taxation in any such
jurisdiction to which it shall not then be so subject or to consent to
general service of process in any such jurisdiction to which it shall
not than be so subject.
(f) The Company will not, for a period of 30 days following
the Execution Time, without the prior written consent of Salomon
Brothers Inc, offer, sell or contract to sell, or otherwise dispose of
(or enter into any transaction which is designed to, or could be
expected to, result in the disposition by any person of) directly or
indirectly, or announce the offering of, any Debt Securities (other
than the Securities) and having a maturity of more than one year from
the date of issue.
6. Conditions to the Obligations of the Underwriters. The
obligations of the Underwriters to purchase the Securities shall be subject to
the accuracy of the representations and warranties on the part of the Company
contained herein as of the Execution Time and the Closing Date, to the accuracy
of the statements of the Company made in any certificates pursuant to the
provisions hereof, to the performance by the Company of its obligations
hereunder and to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, will be
filed in the manner and within the time period required by Rule 424(b);
and no stop order
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suspending the effectiveness of the Registration Statement shall have
been issued and no proceedings for that purpose shall have been
instituted or threatened.
(b) The Company shall have furnished to the Underwriters the
opinion of Kevin C. Gallagher, General Counsel of the Company, dated
the Closing Date, to the effect that:
(i) each of the Company and the subsidiaries named in
Schedule II hereto (individually a "Subsidiary" and
collectively the "Subsidiaries") has been duly incorporated
and is validly existing as a corporation in good standing
under the laws of the jurisdiction in which it is chartered or
organized, with full corporate power and authority to own its
properties and conduct its business as described in the Final
Prospectus, and is duly qualified to do business as a foreign
corporation and is in good standing under the laws of each
jurisdiction which requires such qualification wherein it owns
or leases material properties or conducts material business,
except to the extent that the failure to be so qualified or be
in good standing would not have a material adverse effect on
the Company and its subsidiaries taken as a whole; and each of
the limited partnerships named in Schedule III hereto
(individually a "Limited Partnership" and collectively the
"Limited Partnerships") has been duly formed and is validly
existing as a limited partnership in good standing under the
laws of the jurisdiction in which it is organized;
(ii) The Securities conform in all material respects
to the description thereof contained in the Final Prospectus;
(iii) the Indenture has been duly authorized,
executed and delivered, has been duly qualified under the
Trust Indenture Act, and constitutes a legal, valid and
binding instrument enforceable
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against the Company in accordance with its terms (subject, as
to enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency (including, without limitation, all
laws relating to fraudulent transfers), moratorium or other
laws affecting creditors' rights generally from time to time
in effect and to general principles of equity (regardless of
whether enforcement is considered a proceeding in equity or at
law)); and the Securities have been duly authorized and, when
executed and authenticated in accordance with the provisions
of the Indenture and delivered to and paid for by the
Underwriters pursuant to this Agreement, will constitute
legal, valid and binding obligations of the Company entitled
to the benefits of the Indenture (subject, as to enforcement
of remedies, to applicable bankruptcy, reorganization,
insolvency (including, without limitation, all laws relating
to fraudulent transfers), moratorium or other laws affecting
creditors' rights generally from time to time in effect and to
general principles of equity (regardless of whether
enforcement is considered a proceeding in equity or at law));
(iv) to the best knowledge of such counsel, there is
no pending or threatened action, suit or proceeding before any
court or governmental agency, authority or body or any
arbitrator involving the Company or any of its subsidiaries or
Limited Partnerships of a character required to be disclosed
in the Registration Statement and the Final Prospectus which
is not disclosed in all material respects in the Registration
Statement and the Final Prospectus and the statements included
or incorporated in the Registration Statement and the Final
Prospectus describing any legal proceedings relating to the
Company fairly summarize such matters;
(v) the Registration Statement has become effective
under the Act; to the best knowledge of
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such counsel, no stop order suspending the effec tiveness of
the Registration Statement has been issued, no proceedings for
that purpose have been instituted or threatened; the
Registration State ment at the Effective Date, and the Final
Pro spectus, at the time it was filed with the Commission
pursuant to Rule 424(b) (other than the financial statements
and other financial and statistical information contained
therein as to which such counsel need express no opinion),
complied] as to form in all material respects with the
applicable requirements of the Act and the Trust Indenture Act
and the respective rules and regulations of the Commission
thereunder; and the documents incorporated by reference in the
Registration Statement and the Final Prospectus, at the time
such documents were filed with the Commission (other than the
financial statements and other financial and statistical
information contained therein as to which such counsel need
express no opinion), complied as to form in all material
respects with the applicable requirements of the Exchange Act
and the rules and regulations of the Commission thereunder;
(vi) while such counsel has not independently
verified, and is not passing upon or assuming responsibility
for, the accuracy, completeness or fairness of the statements
or representations contained in the Registration Statement or
Final Prospectus, no facts have come to the attention of such
counsel which would lead such counsel to believe that either
(A) at the Effective Date, the Registration Statement
contained any untrue statement of a material fact or omitted
to state any material fact required to be stated therein or
necessary to make the statements therein not misleading (other
than the financial statements, schedules and other financial
and statistical information contained therein as to which such
counsel need express no belief) or (B) the Final Prospectus,
at the date it was filed with the
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Commission pursuant to Rule 424(b) and at the date of such
opinion, included or includes any untrue statement of a
material fact or omitted or omits to state a material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading
(other than the financial statements, schedules and other
financial and statistical information contained therein as to
which such counsel need express no belief);
(vii) this Agreement has been duly authorized,
executed and delivered by the Company;
(viii) to the best knowledge of such counsel, no
consent, approval, authorization or order of any court or
governmental agency or body is required for the consummation
of the transactions contemplated herein, except such as have
been obtained under the Act and such as may be required under
the blue sky laws of any jurisdiction in connection with the
purchase and distribution of the Securities by the
Underwriters and such other approvals (specified in such
opinion) as have been obtained; and
(ix) neither the execution and delivery of the
Indenture, the issuance and sale of the Securities, nor the
consummation of any other of the transactions herein
contemplated nor the fulfill ment of the terms hereof (a) will
conflict with, result in a breach or violation of, or
constitute a default under any law or the charter or by-laws
of the Company or (b) the terms of any indenture or other
agreement or instrument known to such counsel and to which the
Company or any of its subsidiaries is a party or bound or any
judgment, order or decree known to such counsel to be
applicable to the Company or any of its subsidiaries of any
court, regulatory body, administrative agency, governmental
body or arbitrator having jurisdiction over the Company or any
of its subsidiaries.
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In rendering such opinion, such counsel may rely (A) as to
matters involving the application of laws of any jurisdiction
other than the State of Delaware or the Federal laws of the
United States, to the extent they deem proper and specified in
such opinion, upon the opinion of other counsel of good
standing whom they believe to be reliable and who are
satisfactory to counsel for the Underwriters and (B) as to
matters of fact, to the extent they deem proper, on
certificates of responsible officers of the Company and public
officials. References to the Final Prospectus in this
paragraph (b) include any supplements thereto at the Closing
Date.
(c) The Underwriters shall have received from Cravath, Swaine
& Moore, counsel for the Underwriters, such opinion or opinions, dated
the Closing Date, with respect to the issuance and sale of the
Securities, the Indenture, the Registration Statement, the Final
Prospectus (together with any supplement thereto) and other related
matters as the Underwriters may reasonably require, and the Company
shall have furnished to such counsel such documents as they request for
the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Underwriters a
certificate of the Company, signed by the President or any Executive or
Senior Vice President of the Company and the principal financial or
accounting officer of the Company, dated the Closing Date, to the
effect that the signers of such certificate have carefully examined the
Registration Statement, the Final Prospectus, any supplements to the
Final Prospectus and this Agreement and that:
(i) the representations and warranties of the Company
in this Agreement are true and correct in all material
respects on and as of the Closing Date with the same effect as
if made on the Closing Date and the Company has complied with
all the agree ments and satisfied all the conditions on its
part to be performed or satisfied at or prior to the Closing
Date;
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(ii) no stop order suspending the effectiveness of
the Registration Statement has been issued and no proceedings
for that purpose have been instituted or, to the Company's
knowledge, threat ened; and
(iii) since the date of the most recent finan cial
statements included in the Final Prospectus (exclusive of any
supplement thereto), there has been no material adverse change
in the condition (financial or other), earnings, business or
proper ties of the Company and its subsidiaries, whether or
not arising from transactions in the ordinary course of
business, except as set forth in or contemplated in the Final
Prospectus (exclusive of any supplement thereto).
(e) At the Closing Date, Ernst & Young LLP shall have
furnished to the Underwriters a letter dated as of the Closing Date, in
form and substance satisfactory to the Underwriters, confirming that
they are independent accountants within the meaning of the Act and the
Exchange Act and the respective applicable published rules and
regulations thereunder and stating in effect that:
(i) in their opinion the audited consolidated
financial statements and financial statement schedule included
or incorporated in the Registration Statement and the Final
Prospectus and the audited consolidated financial statements
as of and for the year ended December 31, 1996 not included or
incorporated by reference and reported on by them comply in
form in all material respects with the applicable accounting
requirements of the Act and the Exchange Act the related
published rules and regulations;
(ii) on the basis of a reading of the latest
unaudited financial statements made available by the Company
and its subsidiaries; a reading of the minutes of the meetings
of the stockholders,
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directors and executive, finance and audit committees of the
Company and its subsidiaries; and inquiries of certain
officials of the Company who have responsibility for financial
and accounting matters of the Company and its subsidiaries as
to transactions and events subsequent to December 31, 1996,
nothing came to their attention which caused them to believe
that, with respect to the period subsequent to December 31,
1996, there were any changes, at a specified date not more
than five business days prior to the date of the letter, in
the common stock of the Company or any increases in long term
debt of the Company and its subsidiaries or any decreases in
the shareowners' equity or working capital of the Company and
its subsidiaries as compared with the amounts shown on the
December 31, 1996 audited consolidated balance sheet of the
Company, or for the period from December 31, 1996 to February
28, 1997 there were any decreases, as compared with a
comparable period during the two month period ended November
30 1996, in total operating revenues, operating income plus
depreciation and amortization or operating income, except in
all instances for changes, increases or decreases set forth in
such letter, in which case the letter shall be accompanied by
an explanation by the Company as to the significance thereof
unless said explanation is not deemed necessary by the
Underwriters;
(iii) they have performed certain other speci fied
procedures as a result of which they deter mined that certain
information of an accounting, financial or statistical nature
(which is limited to accounting, financial or statistical
information derived from the general accounting records of the
Company and its subsidiaries) set forth in the Registration
Statement and the Final Prospectus, including the information
included or incorporated in Item 7 of the Company's Annual
Report on Form 10-K, incorporated in the Registration
Statement and the Final Prospectus, and the information
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included in the "Management's Discussion and Analysis of
Financial Condition and Results of Operations" included or
incorporated in the Company's Quarterly Reports on Form 10-Q,
incorporated in the Registration Statement and the Final
Prospectus, agrees with the accounting records of the Company
and its subsidiaries, excluding any questions of legal
interpretation; and
(iv) on the basis of a reading of the unaudited pro
forma consolidated financial statements included or
incorporated in the Registration Statement and the Final
Prospectus (the "pro forma financial statements"); carrying
out certain specified procedures; inquiries of certain
officials of the Company who have responsibility for financial
and accounting matters; and proving the arithmetic accuracy of
the application of the pro forma adjustments to the historical
amounts in the pro forma financial statements, nothing came to
their attention which caused them to believe that the pro
forma financial statements do not comply in form in all
material respects with the applicable accounting requirements
of Rule 11-02 of Regulation S-X or that the pro forma
adjustments have not been properly applied to the historical
amounts in the compilation of such statements.
References to the Final Prospectus in this paragraph (e)
include any supplement thereto at the date of the letter.
(f) Subsequent to the Execution Time or, if earlier, the dates
as of which information is given in the Registration Statement
(exclusive of any amendment thereof) and the Final Prospectus
(exclusive of any supplement thereto), there shall not have been (i)
any change, increase or decrease specified in the letter or letters
referred to in paragraph (e) of this Section 6 or (ii) any change, or
any development involving a
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prospective change, in or affecting the business or properties of the
Company and its subsidiaries the effect of which, in any case referred
to in clause (i) or (ii) above, is, in the judgment of the
Underwriters, so material and adverse as to make it impractical or
inadvisable to proceed with the offering or delivery of the Securities
as contemplated by the Registration State ment (exclusive of any
amendment thereof) and the Final Prospectus (exclusive of any
supplement thereto).
(g) Subsequent to the Execution Time, there shall not have
been any decrease in the rating of any of the Company's debt securities
by any "nationally recognized statistical rating organization" (as
defined for purposes of Rule 436(g) under the Act) or any notice given
of any intended or potential decrease in any such rating or of a
possible change in any such rating that does not indicate the direction
of the possible change.
(h) Prior to the Closing Date, the Company shall have
furnished to the Underwriters such further information, certificates
and documents as the Underwriters may reasonably request.
If any of the conditions specified in this Section 6 shall not
have been fulfilled in all material respects when and as provided in this
Agreement, or if any of the opinions and certificates mentioned above or
elsewhere in this Agreement shall not be in all material respects reasonably
satisfactory in form and substance to the Underwriters and counsel for the
Underwriters, this Agreement and all obliga tions of the Underwriters hereunder
may be canceled at, or at any time prior to, the Closing Date by the
Underwriters. Notice of such cancellation shall be given to the Company in
writing or by telephone or telegraph confirmed in writing.
The documents required to be delivered by this Section 6 shall
be delivered at the office of Cravath, Swaine & Moore, counsel for the
Underwriters, at Worldwide Plaza, 825 Eighth Avenue, New York, New York, on the
Closing Date.
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7. Reimbursement of Underwriters' Expenses. If the sale of
the Securities provided for herein is not consummated because any condition to
the obligations of the Underwriters set forth in Section 6 hereof is not
satisfied, because of any termination pursuant to Section 10 hereof or because
of any refusal, inability or failure on the part of the Company to perform any
agreement herein or comply with any provision hereof other than by reason of a
default by any of the Underwriters, the Company will reimburse the Underwriters
severally upon demand for all out-of-pocket expenses (including reasonable fees
and disbursements of counsel) that shall have been incurred by them in
connection with the proposed purchase and sale of the Securities.
8. Indemnification and Contribution. (a) The Company agrees to
indemnify and hold harmless each Under writer, the directors, officers,
employees and agents of each Underwriter and each person who controls any
Underwriter within the meaning of either the Act or the Exchange Act against any
and all losses, claims, damages or liabilities, joint or several, to which they
or any of them may become subject under the Act, the Exchange Act or other
Federal or state statutory law or regulation, at common law or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement as
originally filed or in any amendment thereof, or in the Basic Prospectus, any
Preliminary Final Prospectus or the Final Prospectus, or in any amendment
thereof or supplement thereto, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, and agrees to
reimburse each such indemnified party, as incurred, for any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
that the Company will not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon any such untrue
statement or alleged untrue statement or omission or alleged omission (i) made
therein in reliance upon and in conformity with written information
17
<PAGE>
furnished to the Company by or on behalf of any Underwriter specifically for
inclusion therein, (ii) in respect of such part of the Registration Statement
that constitutes the Statement of Eligibility and Qualification (Form T-1) under
the Trust Indenture Act of the Trustee or (iii) in respect of the Final
Prospectus relating to the sale of Securities to any person if the Final
Prospectus shall have been amended or supplemented to correct such untrue
statement or alleged untrue statement or omission or alleged omission and a copy
of the Final Prospectus (exclusive of the documents incorporated therein) shall
not have been given or sent to such person by or on behalf of any Underwriter
with or prior to the written confirmation of the sale involved, unless, with
respect to the delivery of the Final Prospectus as amended or supplemented, the
untrue statement or alleged untrue statement or omission or alleged omission was
not corrected in the Final Prospectus as so amended or supplemented at the time
of such written confirmation. This indemnity agreement will be in addition to
any liability which the Company may otherwise have.
(b) Each Underwriter severally agrees to indemnify and hold
harmless the Company, each of its directors (including any person who, with his
consent, is named in the Registration Statement as about to become a director of
the Company), officers, employees and agents and each person who controls the
Company within the meaning of either the Act or the Exchange Act, to the same
extent as the foregoing indemnity from the Company to each Underwriter, but only
with reference to written information relating to such Underwriter furnished to
the Company by or on behalf of such Underwriter specifically for inclusion in
the documents referred to in the foregoing indemnity. This indemnity agreement
will be in addition to any liability which any Underwriter may otherwise have.
The Company acknowledges that the statements set forth in the last paragraph of
the cover page, the first paragraph on page S-2, the second and third sentences
of the fifth paragraph under the heading "Underwriting" and the last paragraph
under the heading "Underwriting" in the Final Prospectus constitute the only
information furnished in writing by or on behalf of the several Underwriters for
inclusion in the Basic Prospectus, any Preliminary Final
18
<PAGE>
Prospectus or the Final Prospectus, and you, as the Underwriters, confirm that
such statements are correct.
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of (i) the commencement of any action or (ii) the intention
or threat to commence an action, such indemnified party will, if a claim in
respect thereof is to be made against the indemnifying party under this Section
8, notify the indemnifying party in writing of the commencement or intended or
threatened commencement thereof; but the failure so to notify the indemnifying
party (i) will not relieve it from liability under paragraph (a) or (b) above
unless and to the extent it did not otherwise learn of such action and such
failure results in the forfeiture by the indemnifying party of substantial
rights or defenses or is otherwise materially prejudiced by such failure and
(ii) will not, in any event, relieve the indemnifying party from any obligations
to any indemnified party other than the indemnification obligation provided in
paragraph (a) or (b) above. The indemnifying party shall be entitled to appoint
counsel of the indemnifying party's choice at the indemnifying party's expense
to represent the indemnified party in any action for which indemnification is
sought (in which case the indemnifying party shall not thereafter be responsible
for the fees and expenses of any separate counsel retained by the indemnified
party or parties except as set forth below); provided, however, that such
counsel shall be reasonably satisfactory to the indemnified party.
Notwithstanding the indemnifying party's election to appoint counsel to
represent the indemnified party in an action, the indemnified party shall have
the right to employ separate counsel (including local counsel), and the
indemnifying party shall bear the reasonable fees, costs and expenses of such
separate counsel if (i) the use of counsel chosen by the indemnifying party to
represent the indemnified party would present such counsel with a conflict of
interest, (ii) the actual or potential defendants in, or targets of, any such
action include both the indemnified party and the indemnifying party and the
indem nified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties which are different
from or additional to those available to the indemnifying party, (iii) the
indemnifying
19
<PAGE>
party shall not have employed counsel satisfactory to the indemnified party to
represent the indemnified party within a reasonable time after notice of the
institution of such action or (iv) the indemnifying party shall authorize the
indemnified party to employ separate counsel at the expense of the indemnifying
party; provided, however, that the indemnifying party shall not, in respect of
the legal fees and expenses of any indemnified party in the same jurisdiction,
be liable for the fees and expenses of more than one separate firm (in addition
to any local counsel) for all such indemnified parties. An indemnifying party
will not, without the prior written consent of the indemnified parties, settle
or compromise or consent to the entry of any judgment with respect to any
pending or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action)
unless such settlement, compromise or consent includes an unconditional release
of each indemnified party from all liability arising out of such claim, action,
suit or proceeding. No indemnified party, without the prior written consent of
the indemnifying party, will settle or compromise or consent to the entry of any
judgment with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnifying party is an actual or potential party
to such claim or action) unless the indemnifying party fails to perform its
obligations hereunder.
(d) In the event that the indemnity provided in paragraph (a)
or (b) of this Section 8 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, the Company and the Underwriters agree to
contribute to the aggregate losses, claims, damages and liabilities (including
legal or other expenses reasonably incurred in connection with investigating or
defending same) (collectively "Losses") to which the Company and one or more of
the Under writers may be subject in such proportion as is appropriate to reflect
the relative benefits received by the Company and by the Underwriters from the
offering of the Securities; provided, however, that in no case shall any
Underwriter (except as may be provided in any agreement among underwriters
20
<PAGE>
relating to the offering of the Securities) be responsible for any amount in
excess of the underwriting discount or commission applicable to the Securities
purchased by such Underwriter hereunder. If the allocation provided by the
immediately preceding sentence is unavailable for any reason, the Company and
the Underwriters shall contribute in such proportion as is appropriate to
reflect not only such relative benefits but also the relative fault of the
Company and of the Underwriters in connection with the statements or omissions
which resulted in such Losses as well as any other relevant equitable
considerations. Benefits received by the Company shall be deemed to be equal to
the total net proceeds from the offering (before deducting expenses) received by
it, and benefits received by the Underwriters shall be deemed to be equal to the
total underwriting discounts and commissions, in each case as set forth on the
cover page of the Final Prospectus. Relative fault shall be determined by
reference to whether any alleged untrue statement or omission relates to
information provided by the Company or the Underwriters and the parties relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. The Company and the Underwriters agree that it would
not be just and equitable if contribution were determined by pro rata allocation
or any other method of allocation which does not take account of the equitable
considerations referred to above. Notwithstanding the provisions of this
paragraph (d), no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. For purposes of
this Section 8, each person who controls an Underwriter within the meaning of
either the Act or the Exchange Act and each director, officer, employee and
agent of an Underwriter shall have the same rights to contribution as such
Underwriter, and each person who controls the Company within the meaning of
either the Act or the Exchange Act, each director (including any person who,
with his consent, is named in the Registration Statement as about to become a
director of the Company), officer, employee and agent of the Company shall have
the same rights to contribution as the Company, subject in each case to the
applicable terms and conditions of this paragraph (d).
21
<PAGE>
9. Default by an Underwriter. If any one or more Underwriters
shall fail to purchase and pay for any of the Securities agreed to be purchased
by such Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take up
and pay for (in the respective proportions which the principal amount of
Securities set forth opposite their names in Schedule I hereto bears to the
aggregate principal amount of Securities set forth opposite the names of all the
remaining Underwriters) the Securities which the defaulting Underwriter or Under
writers agreed but failed to purchase; provided, however, that in the event that
the aggregate principal amount of Securities which the defaulting Underwriter or
Underwriters agreed but failed to purchase shall exceed 10% of the aggregate
amount of Securities set forth in Schedule I hereto, the remaining Underwriters
shall have the right to purchase all, but shall not be under any obligation to
purchase any, of the Securities, and if such nondefaulting Underwriters do not
purchase all the Securities, this Agreement will terminate without liability to
any nondefaulting Underwriter or the Company. In the event of a default by any
Underwriter as set forth in this Section 9, the Closing Date shall be postponed
for such period, not exceeding seven days, as the Underwriters shall determine
in order that the required changes in the Registration Statement and the Final
Prospectus or in any other documents or arrangements may be effected. Nothing
contained in this Agreement shall relieve any defaulting Underwriter of its
liability, if any, to the Company and any nondefaulting Underwriter for damages
occasioned by its default hereunder.
10. Termination. This Agreement shall be subject to
termination in the absolute discretion of the Underwriters, by notice given to
the Company prior to delivery of and payment for the Securities, if prior to
such time (i) trading in the Company's Common Stock shall have been suspended by
the Commission or the New York Stock Exchange or trading in securities generally
on the New York Stock Exchange shall have been suspended or limited or minimum
prices shall have been
22
<PAGE>
established on such Exchange, (ii) a banking moratorium shall have been declared
either by Federal or New York State authorities or (iii) there shall have
occurred any outbreak or escalation of hostilities, declaration by the United
States of a national emergency or war or other calamity or crisis the effect of
which on financial markets is such as to make it, in the judgment of the
Underwriters, impracticable or inadvisable to proceed with the offering or
delivery of the Securities as contemplated by the Final Prospectus (exclusive of
any supplement thereto).
11. Representations and Indemnities to Survive. The
respective agreements, representations, warranties, indemnities and other
statements of the Company or its officers and of the Underwriters set forth in
or made pursuant to this Agreement will remain in full force and effect,
regardless of any investigation made by or on behalf of any Underwriter or the
Company or any of the officers, directors or controlling persons referred to in
Section 8 hereof, and will survive delivery of and payment for the Securities.
The provisions of Sections 7 and 8 hereof shall survive the termination or
cancellation of this Agreement.
12. Notices. All communications hereunder will be in writing
and effective only on receipt, and, if sent to the Underwriters, will be mailed,
delivered or telegraphed and confirmed to them, care of Salomon Brothers Inc, at
Seven World Trade Center, New York, New York, 10048; or, if sent to the Company,
will be mailed, delivered or telegraphed and confirmed to it at 8725 W. Higgins
Road, Chicago, Illinois 60631-2702, attention Kevin C. Gallagher, Esq., Senior
Vice President, General Counsel and Secretary.
13. Successors. This Agreement will inure to the benefit of
and be binding upon the parties hereto and their respective successors and the
officers and directors and controlling persons referred to in Section 8 hereof,
and no other person will have any right or obligation hereunder.
14. Applicable Law. This Agreement will be governed by and
construed in accordance with the laws of the State of New York.
23
<PAGE>
15. Actions of Underwriters. Any action required or permitted
to be taken by the Underwriters hereunder may be taken by Salomon Brothers Inc,
and the Company shall be entitled to act and rely upon any action so taken by
Salomon Brothers Inc, as having been taken by the Underwriters.
16. Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed to be an original but all of
which shall constitute one and the same agreement.
17. Entire Agreement. This Agreement constitutes the entire
agreement among the parties hereto with respect to the transactions contemplated
hereby.
24
<PAGE>
If the foregoing is in accordance with your under standing of
our agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding agreement
among the Company and the several Underwriters.
Very truly yours,
360 Communications Company
By: /s/ Gary L. Burge
Name: Gary L. Burge
Title: Senior Vice President
- Finance
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
Salomon Brothers Inc
Lehman Brothers Inc.
J.P. Morgan Securities Inc.
By: Salomon Brothers Inc
By: /s/ Martha Bailey
Name: Martha Bailey
Title: Vice President
25
<PAGE>
SCHEDULE I
Principal Amount
Underwriters of Notes
- ------------ --------
Salomon Brothers Inc .......................................... $100,000,000
Lehman Brothers Inc. . . . . . 50,000,000
J.P. Morgan Securities Inc. . . 50,000,000
------------
Total................................................ $200,000,000
26
<PAGE>
SCHEDULE II
Certain Subsidiaries of the Company
Susquehanna Cellular Communications Limited Partnership
Virginia Metronet, Inc.
TeleSpectrum of Virginia, Inc.
360 Communications Company of Peoria
South Bend/Mishawaka MSA Limited Partnership
Toledo MSA Limited Partnership
Ohio RSA 6 Limited Partnership
Youngstown-Warren MSA Limited Partnership
Raleigh-Durham MSA Limited Partnership
360 Communications Company of North Carolina Limited Partnership
360 Communications Company of Hickory Limited Partnership
360 Communications Company of North Carolina No. 1
North Carolina RSA 6 Limited Partnership
TeleSpectrum, Inc.
Charleston-North Charleston MSA Limited Partnership
Greenville MSA Limited Partnership
360 Communications Company of New Mexico
360 Communications Company of Nevada Limited Partnership
360 Communications Company of Ohio No. 3
360 Communications Company of Hickory No. 1
Northeast Pennsylvania SMSA Limited Partnership Cellular Plus LP
27
<PAGE>
SCHEDULE III
Certain Limited Partnerships of the Company
Chicago MSA Limited Partnership
GTE Mobilnet of South Texas Limited Partnership
Kansas City MSA Limited Partnership
New York MSA Limited Partnership
Orlando MSA Limited Partnership
28
<PAGE>
- --------------------------------------------------------------------------------
360 COMMUNICATIONS COMPANY
TO
CITIBANK, N.A., Trustee
------------------------------------
Indenture
-------------------------------------
Dated as of March 1, 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
Bankruptcy Law..................................................2
Board of Directors..............................................2
Board Resolution................................................3
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.........................................5
Corporate Trust Office..........................................5
corporation.....................................................5
covenant defeasance option......................................6
Credit Facility.................................................6
Custodian.......................................................6
Currency Agreement..............................................6
Default.........................................................6
Defaulted Interest..............................................6
Depository......................................................6
Discount Security...............................................6
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Dollar..........................................................6
EBITDA..........................................................6
Event of Default................................................7
Exchange Act....................................................7
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.........................................9
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.............................................10
Outstanding....................................................10
Paying Agent...................................................11
Periodic Offering..............................................11
Permitted Liens................................................11
Person.........................................................12
Place of Payment...............................................12
Predecessor Security...........................................13
Preferred Stock................................................13
Pricing Committee..............................................13
Pro Forma EBITDA...............................................13
Property.......................................................13
Rating Agencies................................................13
Rating Date....................................................13
Rating Decline.................................................14
Redeemable Dividend............................................14
Redeemable Stock...............................................14
Redemption Date................................................14
Redemption Price...............................................14
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Regular Record Date............................................14
Required Currency..............................................14
Responsible Officer............................................14
Restricted Subsidiary..........................................15
Sale and Leaseback Transaction.................................15
Securities.....................................................15
Securities Act.................................................15
Security Register..............................................15
Senior Indebtedness............................................15
Special Record Date............................................15
Stated Maturity................................................15
Subsidiary.....................................................15
Temporary Cash Investments.....................................16
Tranche........................................................16
Trustee........................................................16
Trust Indenture Act............................................16
U.S. Government Obligations....................................16
United States..................................................16
Unrestricted Subsidiary........................................17
Voting Stock...................................................17
Wholly Owned Subsidiary........................................17
Section 102. Compliance Certificates and Opinions...........................17
Section 103. Form of Documents Delivered to Trustee.........................18
Section 104. Acts of Holders................................................18
Section 105. Notices, Etc. to Trustee and Company...........................20
Section 106. Notice to Holders of Securities; Waiver........................20
Section 107. Conflict with Trust Indenture Act..............................21
Section 108. Effect of Headings and Table of Contents.......................21
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 Trustee's Certificate of Authentication................22
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ARTICLE THREE
THE SECURITIES
Section 301. Amount Unlimited; Issuable in Series...........................23
Section 302. Denominations..................................................26
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.................32
Section 308. Persons Deemed Owners..........................................33
Section 309. Cancellation...................................................33
Section 310. Computation of Interest........................................33
Section 311. Payment to Be in Proper Currency...............................34
Section 312. CUSIP Numbers..................................................34
ARTICLE FOUR
REDEMPTION OF SECURITIES
Section 401. Applicability of Article.......................................34
Section 402. Election to Redeem; Notice to Trustee..........................35
Section 403. Selection of Securities to Be Redeemed.........................35
Section 404. Notice of Redemption...........................................35
Section 405. Securities Payable On Redemption Date..........................36
Section 406. Securities Redeemed in Part....................................37
ARTICLE FIVE
SINKING FUNDS
Section 501. Applicability of Article.......................................37
Section 502. Satisfaction of Sinking Fund Payments with Securities..........38
Section 503. Redemption of Securities for Sinking Fund......................38
ARTICLE SIX
COVENANTS
Section 601. Payment of Principal, Premium and Interest.....................39
Section 602. Limitation on Liens............................................39
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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....................................42
Section 608. Calculation of Original Issue Discount.........................42
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.....................................45
Section 704. Repayment to Company...........................................45
Section 705. Indemnity for Government Obligations...........................45
Section 706. Reinstatement..................................................45
ARTICLE EIGHT
EVENTS OF DEFAULT; REMEDIES
Section 801. Events of Default..............................................45
Section 802. Acceleration of Maturity; Rescission and Annulment.............48
Section 803. Collection of Indebtedness and Suits for Enforcement
by Trustee.....................................................49
Section 804. Trustee May File Proofs of Claim...............................49
Section 805. Trustee May Enforce Claims Without Possession of
Securities.....................................................50
Section 806. Application of Money Collected.................................50
Section 807. Limitation on Suits............................................51
Section 808. Unconditional Right of Holders to Receive Principal,
Premium and Interest...........................................52
Section 809. Restoration of Rights and Remedies.............................52
Section 810. Rights and Remedies Cumulative.................................53
Section 811. Delay or Omission Not Waiver...................................53
Section 812. Control by Holders of Securities...............................53
Section 813. Waiver of Past Defaults........................................54
Section 814. Undertaking for Costs..........................................54
Section 815. Waiver of Stay or Extension Laws...............................54
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ARTICLE NINE
THE TRUSTEE
Section 901. Certain Duties and Responsibilities............................55
Section 902. Notice of Defaults.............................................56
Section 903. Certain Rights of Trustee......................................56
Section 904. Not Responsible for Recitals or Issuance of Securities.........58
Section 905. May Hold Securities............................................58
Section 906. Money Held in Trust............................................58
Section 907. Compensation and Reimbursement.................................58
Section 908. Disqualification; Conflicting Interests........................59
Section 909. Corporate Trustee Required; Eligibility........................60
Section 910. Resignation and Removal; Appointment of Successor..............60
Section 911. Acceptance of Appointment by Successor.........................62
Section 912. Merger, Conversion, Consolidation or Succession
to Business....................................................63
Section 913. Preferential Collection of Claims Against Company..............63
Section 914. Appointment of Authenticating Agent............................67
Section 915. Trustee's Application for Instructions from the Company........69
ARTICLE TEN
RIGHT TO REQUIRE REPURCHASE
Section 1001. Repurchase of Securities at Option of the
Holder upon Change of Control..................................69
Section 1002 Covenant to Comply with Securities Laws
upon Purchase of Securities....................................71
ARTICLE ELEVEN
MERGER, CONSOLIDATION, AND SALE OF ASSETS
Section 1101. When Company May Merger or Transfer Assets.....................71
Section 1102. Successor Corporation Substituted..............................72
ARTICLE TWELVE
SUPPLEMENTAL INDENTURES
Section 1201. Supplemental Indentures Without Consent of Holders............72
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Section 1202. Supplemental Indentures With Consent of Holders................74
Section 1203. Execution of Supplemental Indentures...........................75
Section 1204. Effect of Supplemental Indentures..............................76
Section 1205. Conformity With Trust Indenture Act............................76
Section 1206. Reference in Securities to Supplemental Indentures.............76
Section 1207. Modification Without Supplemental Indenture....................76
ARTICLE THIRTEEN
MEETINGS OF HOLDERS;
ACTION WITHOUT MEETING
Section 1301. Purposes for Which Meetings May Be Called......................76
Section 1302. Call, Notice and Place of Meetings.............................77
Section 1303. Persons Entitled to Vote at Meetings...........................77
Section 1304. Quorum, Action.................................................78
Section 1305. Attendance at Meetings; Determination of Voting Rights
Conduct and Adjournment of Meetings............................79
Section 1306. Counting Votes and Recording Action of Meeting.................79
Section 1307. Action Without Meeting.........................................80
ARTICLE FOURTEEN
IMMUNITY OF INCORPORATORS,
STOCKHOLDERS, OFFICERS AND DIRECTORS
Section 1401. Liability Solely Corporate.....................................80
ARTICLE FIFTEEN
HOLDERS' LISTS AND REPORTS
BY TRUSTEE AND COMPANY
Section 1501. Company to Furnish Trustee Names and Addresses
of Holders.....................................................81
Section 1502. Preservation of Information; Communications to Holders.........81
Section 1503. Reports by Trustee.............................................82
Section 1504. Reports by Company.............................................84
- vii -
<PAGE>
INDENTURE, dated as of March 1, 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 national banking association duly
incorporated and existing under the laws of the United States of America (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 a 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,
- 1 -
<PAGE>
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 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. An "Affiliate" of the Company 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 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 the Company 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 the Company 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.
"Bankruptcy Law" has the meaning specified in Section 801.
"Board of Directors" means either the Board of Directors of the Company
or any duly authorized committee thereof.
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"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.
"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
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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.
"Change of Control Offer" has the meaning specified in Section 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, with respect to the
Securities of any series, the occurrence of both a Change of Control and a
Rating Decline with respect to the Securities of such series.
"Commission" means the Securities and Exchange Commission, as from time
to time constituted, created under the Exchange Act or, if at any time after the
execution of this 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 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
the Company and its Restricted Subsidiaries 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 the Company to
be the rate of
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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, except that (a) subject to the
limitations contained in clause (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 clause (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 principal office of the Trustee in
the Borough of Manhattan, the City of New York, at which at any particular time
its corporate trust business shall be administered, which office at the date of
initial execution of this Indenture is located at 120 Wall Street, New York, New
York 10043, Attention: Corporate Trust Administration; except that with respect
to the presentation of Securities for payment or for registration of transfer or
exchange, such term shall mean the office or agency of the Trustee in said
Borough at which at any particular time its corporate agency business shall be
conducted, which office at the date of initial execution of this Indenture is
located at 111 Wall Street, 5th Floor, New York, New York 10043, Attention:
Corporate Trust Services.
"corporation" means a corporation, association, company/joint stock
company or business trust.
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"covenant defeasance option" has the meaning specified in Section
701(b).
"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 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.
"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.
"Custodian" has the mean specified in Section 801.
"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 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) above, 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)
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all non-cash items increasing Consolidated Net Income for such period, all for
the Company and its Restricted Subsidiaries determined on a consolidated basis
in accordance with GAAP consistently applied.
"Event of Default" has the meaning specified in Section 801.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"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,
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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 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, any 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
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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- (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 the sum of the Company'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
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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:
(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 a
Responsible Officer of the Trustee actually 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
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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
(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)
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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
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 604, the
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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 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
or individual 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 period, the EBITDA of the Company and
its Restricted Subsidiaries 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, the Company or any of its Restricted Subsidiaries
shall have made any Asset Sale, Pro Forma EBITDA of the Company and its
Restricted 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, the Company or any of its Restricted
Subsidiaries completes an acquisition of any Person or business which
immediately after such acquisition is a Restricted Subsidiary of the Company or
whose assets are held directly by the Company or a Restricted Subsidiary of the
Company, Pro Forma EBITDA shall be computed so as to give pro forma effect to
the acquisition of such Person or business.
"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.
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"Rating Decline" means, with respect to the Securities of any series,
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 the Securities of such series is under publicly announced
consideration for possible downgrade by any of the Rating Agencies): (a) in the
event the Securities of such series are assigned an Investment Grade Rating by
at least two of the three Rating Agencies on the Rating Date, the rating of the
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 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 of the 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).
"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, any assistant vice
president, the secretary, any assistant secretary, the treasurer, any assistant
treasurer, the cashier, any assistant cashier, any senior trust officer, 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
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the Trustee to whom such matter is referred because of his or her 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 any direct or indirect
arrangement pursuant to which Property is sold or transferred by the Company or
any of its Restricted Subsidiaries and is thereafter leased back from the
purchaser or transferee thereof by the Company 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.
"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 including pursuant
to any mandatory redemption provision.
"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.
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"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 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 above 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.
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"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.
"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 or she has made such examination or investigation as is necessary to
enable him or her 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.
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Section 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which 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.
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(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 or her 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 or her individual capacity, such certificate or affidavit shall also
constitute sufficient proof of his or her 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 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,
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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,
(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 Trust 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.
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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.
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, without regard to conflicts
of law principles thereof.
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
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effect as if made on the Interest Payment Date, 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.
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 Trustee's 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 the 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) and the form of the Securities of such 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, which may be serial, on which the
principal of the Securities of such series is payable;
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(f) the rate or rates at which the Securities of such series,
or any Tranche 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 or repay 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 the obligation to purchase
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
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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 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) the terms of any warrants attached to the Securities of
such series, or any Tranche thereof;
(r) 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;
(s) 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;
(t) 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
(u) 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
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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 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
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
acceptable to the Trustee; and (d) if provided for in such procedures acceptable
to the Trustee, 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
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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;
(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 legal,
valid and 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 applicable bankruptcy,
reorganization, insolvency (including, without limitation, all laws
relating to fraudulent transfers), moratorium or other laws relating to
or affecting the enforcement of creditors' rights generally from time
to time in effect and to general principles of equity (regardless of
whether enforcement is considered a proceeding in equity or at law);
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 legal, valid and
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 applicable bankruptcy, reorganization,
insolvency (including, without limitation, all laws relating to
fraudulent transfers), moratorium or other laws relating to or
affecting the enforcement of creditors' rights generally from time to
time in effect and to general principles of equity (regardless of
whether enforcement is considered a proceeding in equity or at law).
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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 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 if other than The Depository Trust
Company):
"Unless this certificate is presented by an authorized
representative of The Depository Trust Company, a New York corporation
("DTC"), to 360 Communications Company (the "Company") or its agent for
registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as
is requested by an authorized representative of DTC (and any payment is
made to Cede & Co. or to such other entity as is requested by an
authorized representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch
as the registered owner hereof, Cede & Co., has an interest herein.
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 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
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nominee of such successor depositary.
This Security may be exchanged for certificated Securities
registered in the names of the various beneficial owners hereof (as
certified to the Company by DTC or a successor depositary) only if (a)
DTC notifies the Company that it is unwilling or unable to continue as
depositary for this Security or if at any time DTC ceases to be a
clearing agency registered under the Securities Exchange Act of 1934,
as amended, and a successor depositary is not appointed by the Company
within 90 days, or (b) the Company executes and delivers to the Trustee
a notice that this Security and all Securities of the series designated
below shall be so transferable, registerable and exchangeable, and such
transfers shall be registerable, or (c) there shall have occurred and
be continuing an Event of Default or an event which, with the giving of
notice or lapse of time or both, would constitute an Event of Default
with respect to the Securities represented by this certificate."
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.
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
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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 604
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 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 or 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
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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 or her 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 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.
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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 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
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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 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 destroyed by the Trustee in accordance with its customary
procedures.
Section 310. Computation of Interest.
Except as otherwise specified as contemplated by Section 301 for
Securities of any series,
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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
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. The Company shall promptly notify
the Trustee in writing of any change in the "CUSIP" numbers assigned to any
Securities.
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.
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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, 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:
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(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 of the Redemption Price; and
(g) the purpose for the redemption if such redemption is made
pursuant to a sinking fund or other obligation of the Company (with
reference to the applicable Section of this Indenture or the Security
to be redeemed, as the case may be).
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 written 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
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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 by, the Holder thereof or his or her
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.
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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 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
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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 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 its 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
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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.
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
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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 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, within 120 days after each
fiscal year of the Company ending after the Issue Date, 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 or her
supervision; and
(b) to the best of his or her knowledge, based on such review,
either (1) the Company has fulfilled all its obligations under this
Indenture throughout such year or if
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there has been a Default in the fulfillment of any such obligation,
specifying each such Default known to him or her 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 or her and the
nature and status thereof.
Subject to the last paragraph of Section 801, the Company shall deliver
to 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. Such written notice shall be in the form of an Officers'
Certificate and shall state the status of such Default or Event of Default and
what action the Company is taking or proposes to take with respect thereto.
Section 607. Waiver of Certain Covenants.
Except as otherwise specified as contemplated by Section 301 for
Securites of such series, the Company may, with respect to the Securities of any
series, omit in any particular instance to comply with any term, provision or
condition set forth in any covenant provided pursuant to Section 301(p), 1201(b)
or 1201(f) for the benefit of the Holders of such series or in any of Sections
602, 603, 606 or 1001 or Article Eleven if before the time for such compliance
the Holders of at least a majority in principal amount of the Outstanding
Securities of such series shall, by Act of such Holders, either waive such
compliance in such instance or generally waive compliance with such term,
provision or condition; but 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 respect of any such term, provision or condition shall remain in
full force and effect.
Section 608. Calculation of Original Issue Discount.
With respect to each series of Securities, if any, issued with original
issue discount, the Company shall file with the Trustee, within thirty (30) days
after the end of each calender year, (i) a written notice specifying the amount
of original issue discount (including daily rates and accrual periods) accrued
on the Outstanding Securities of such series as of the end of such year and (ii)
such other specific information relating to such original issue discount as may
then be required to be distributed to the Holders of the Securities of such
series pursuant to the applicable provisions of the Internal Revenue Code of
1986, as amended from time to time.
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
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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) (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.
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Government Obligations for the payment of principal and premium, if
any, of 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 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 have been complied with.
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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. 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 written 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.
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 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 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.
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:
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(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 the Company fails to give the notice specified
below; 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 the Company
fails to give the notice specified below; or
(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
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(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, 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.
The Company shall deliver to the Trustee written notice of the
occurrence of any Default or Event of Default under clause (c), (d), (e), or (h)
above within 30 days of its becoming aware of any such Default. Such written
notice shall be in the form of an Officers' Certificate and shall state the
status of such Default or Event of Default and what action the Company is taking
or
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proposes to take with respect thereto.
Section 802. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default (other than an Event of Default specified in
Section 801(f) or (g) with respect to the Company) 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 and 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. If an Event of
Default specified in Section 801(f) or (g) with respect to the Company occurs,
the principal of and accrued but unpaid interest on all of the Outstanding
Securities of each series shall ipso facto become and be immediately due and
payable without any declaration or other act on the part of the Trustee or any
Holders.
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 Holders of a majority in principal of
the Outstanding Securities of such series, by written notice to the Company and
the Trustee, may rescind and annul such declaration and its consequences, 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 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
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(b) all 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.
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,
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(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, 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
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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.
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 at least 25% in principal amount of the
Outstanding
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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 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 (subject to Section
807) to institute suit for the enforcement of any such payment, and such rights
shall not be impaired without the consent of such Holder.
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, the
Company, and the Trustee and such Holder shall be restored severally and
respectively to their former positions and rights hereunder and thereafter all
rights, remedies and powers of the Trustee and such Holder shall continue as
though no such proceeding had been instituted, except to the extent determined
in litigation adversely to the Trustee or such Holder, as the case may be.
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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
(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
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(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 1202 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 of any Security by
his or her or her 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 and expenses, 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 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 the covenants or the
performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law
and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
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ARTICLE 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 (but need not confirm or
investigate the accuracy of mathematical calculations or other facts
stated therein).
(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 or her 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;
(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
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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.
(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 conclusively 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 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;
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(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 of its selection and
the 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 authorized or within the
discretion or rights or powers conferred upon it by this Indenture.
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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 and hold harmless the Trustee (including any
predecessor Trustee), its directors, officers, employees and agents
from and against, any and all loss, damage, claims, liability or
expense, including taxes (other than taxes based upon measured or
determined by the income of the Trustee) reasonably Incurred without
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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(f) or Section 801(g), 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. 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 removal, the Trustee being removed may petition any
court of competent jurisdiction for the appointment of a successor Trustee with
respect to the Securities of such series.
(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
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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
(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.
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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 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.
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(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.
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
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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 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
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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 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;
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(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 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;
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(5) the term "Company" means any obligor upon the Securities;
and
(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
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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 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.
CITIBANK, N.A.,
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 or her 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 accrue interest;
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(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 or her election to have
such Securities purchased;
(8) that Holders whose Securities are being purchased only in
part shall 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.
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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 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.
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Section 1102. Successor Corporation Substituted.
Upon any consolidation by the Company with or merger by the Company
into any other 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
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(e) to provide collateral security for the Securities; or
(f) to establish the form or terms of Securities of any series
or Tranche as 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; and provided further, however, that unless otherwise
provided as contemplated by Section 301 with respect to the Securities
of any series, one of such places shall at all times be located in New
York, New York; 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
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(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 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
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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 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
Officers' Certificate and 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
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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.
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 Sections 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
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action provided by this Indenture to be made, given or taken by Holders of
Securities of such series or Tranches.
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 (i) 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 (ii) 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 Trustee.
(a) The Trustee shall, within sixty (60) days after each March 1
following the Issue Date, transmit to the Holders as hereinafter provided, a
brief report dated as of each such March 1 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
shall 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 reports pursuant to Section 1503(a),
such summaries of any information, documents and
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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. Delivery of such
reports, information and documents to the Trustee is for informational
purposes only and the Trustee's receipt of such shall not constitute
constructive notice of any information contained therein or
determinable from information contained therein, including the
Company's compliance with any of its covenants hereunder (as to which
the Trustee is entitled to rely exclusively on Officers' Certificates).
[This space intentionally left blank.]
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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: /s/ Michael J. Small
Title: Executive Vice President and
Chief Financial Officer
(SEAL)
Attest:
Title: Assisrant Secretary
CITIBANK, N.A.,
as Trustee
By: /s/ Pat DeFelice
Title: Vice President
(SEAL)
Attest:
Title: Trust Officer
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Unless this certificate is presented by an authorized representative of
The Depository Trust Company, a New York corporation ("DTC"), to 360
Communications Company (the "Company") or its agent for registration of
transfer, exchange or payment, and any certificate issued is registered in the
name of Cede & Co. or in such other name as is requested by an authorized
representative of DTC (and any payment is made to Cede & Co. or to such other
entity as is requested by an authorized representative of DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest
herein.
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 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 certificated Securities registered
in the names of the various beneficial owners hereof (as certified to the
Company by DTC or a successor depositary) only if (a) DTC notifies the Company
that is unwilling or unable to continue as depositary for this Security or if at
any time DTC ceases to be a clearing agency registered under the Securities
Exchange Act of 1934, as amended, and a successor depositary is not appointed by
the Company within 90 days, (b) the Company executes and delivers to the Trustee
a notice that this Security and all Securities of the series designated below
shall be so transferable, registerable and exchangeable, and such transfers
shall be registerable, or (c) there shall have occurred and be continuing an
Event of Default or an event which, with the giving of notice or lapse of time
or both, would constitute an Event of Default with respect to the Securities
represented by this certificate.
<PAGE>
[FACE OF SECURITY]
360 COMMUNICATIONS COMPANY
7.60% Senior Note Due 2009
Principal Amount No.
$ CUSIP 885571 AD 1
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 April 1, 2009 (the "Stated Maturity"), and to pay interest thereon from March
17, 1997 or from the most recent Interest Payment Date to which interest has
been paid or duly provided for, payable semiannually in arrears on April 1 and
October 1 in each year (each, an "Interest Payment Date"), commencing on October
1, 1997, and at Maturity, at the rate of 7.60% (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 March 15 or September 15 (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.
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 the Stated Maturity, as a result of the Company's obligations pursuant to
Section 1001 of the Indenture, or otherwise.
<PAGE>
If any Interest Payment Date, any Redemption Date, any Change of
Control Payment Date or the Stated Maturity 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, such Redemption Date,
such Change of Control Payment Date or the Stated Maturity, as the case may be,
to such Business Day.
Payment of the principal of and premium, if any, and interest on this
Security at Maturity shall be made upon presentation hereof at the office or
agency of the Company, one of which will be maintained in The City of New York
(which initially will be the Corporate Trust Office of Citibank, N.A. in New
York, New York) or at such other office or agency permitted under the Indenture
and located in The City of New York. Payment the principal of and premium, if
any, and interest on this Security shall be payable in immediately available
funds; provided however, that payment of interest may be made at the option of
the Company 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]
360 COMMUNICATIONS COMPANY
7.60% Senior Note Due 2009
This Security is one of a duly authorized issue of unsecured senior
debt securities of the Company (herein called the "Securities"), issued and
issuable in one or more series under an Indenture dated as of March 1, 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") from
the Company to 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 capitalized 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.
This Security shall be redeemable as a whole or in part, at the option
of the Company, at any time at a redemption price equal to the greater of (i)
100% of the principal amount hereof or (ii) the sum of the present values of the
remaining scheduled payments of principal and interest hereon discounted to the
Redemption Date on a semiannual basis (assuming a 360-day year consisting of
twelve 30-day months) at the Treasury Rate (as defined below) plus 20 basis
points, plus in each case accrued interest hereon to the Redemption Date.
"Treasury Rate" means, with respect to any Redemption Date, the rate
per annum equal to the semiannual equivalent yield to maturity of the Composite
Treasury Issue (as defined below), assuming a price for the Comparable Treasury
Issue (expressed as a percentage of its principal amount) equal to the
-3-
<PAGE>
Comparable Treasury Price (as defined below) for such Redemption Date.
"Comparable Treasury Issue" means the United States Treasury security
selected by an Independent Investment Banker (as defined below) as having a
maturity comparable to the remaining term of the Securities of this series to be
redeemed that would be utilized, at the time of selection and in accordance with
customary financial practice, in pricing new issues of corporate debt securities
of comparable maturity to the remaining term of the Securities of this series.
"Independent Investment Banker" means one of the Reference Treasury Dealers (as
defined below) appointed by the Company.
"Comparable Treasury Price" means, with respect to any Redemption Date,
(i) the average of the bid and ask prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) on the third
Business Day preceding such Redemption Date, as set forth in the daily
statistical release (or any successor release) published by the Federal Reserve
Bank of New York and designated "Composite 3:30 p.m. Quotations for U.S.
Government Securities" or (ii) if such release (or any successor release) is not
published or does not contain such prices on such Business Day, (A) the average
of the Reference Treasury Dealer Quotations (as defined below) for such
Redemption Date, after excluding the highest and lowest such Reference Treasury
Dealer Quotations, or (B) if the Company obtains fewer than four such Reference
Dealer Quotations, the average of all such Quotations. "Reference Dealer
Quotations" means, with respect to each Reference Treasury Dealer and any
Redemption Date, the average, as determined by the Company, of the bid and ask
prices for the Comparable Treasury Issue (expressed in each case as a percentage
of its principal amount) quoted in writing to the Company by such Reference
Treasury Dealer at 5:00 p.m. on the third Business Day preceding such Redemption
Date.
"Reference Treasury Dealer" means each of Salomon Brothers Inc, J.P.
Morgan Securities Inc. and Lehman Brothers Inc. and their respective successors;
provided, however, that if any of the foregoing shall cease to be a primary U.S.
Government securities dealer in The City of New York (a "Primary Treasury
Dealer"), the Company shall substitute therefor another Primary Treasury Dealer.
Notice of redemption 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
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
-4-
<PAGE>
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 consent or waiver by the Holder of this Security shall be conclusive
and binding upon such Holder and upon all future Holders of this Security and of
any Security issued upon the registration of transfer hereof or in exchange
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 of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the
Corporate Trust Office of Citibank, N.A. in The City of New York or other such
office or agency permitted under the Indenture and located in The City of New
York 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 $1,000 and in 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
Corporate Trust Office of Citibank, N.A. in The City of New York or other such
office or agency permitted under the Indenture and located in The City of New
York as may be designated by the Company from time to time.
The Company shall not be required to (i) 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 (ii) to register the transfer
of or exchange any Security so selected for redemption in whole or in part,
except the unredeemed portion of any Security being redeemed in part.
-5-
<PAGE>
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, WITHOUT REGARD TO CONFLICTS
OF LAW PRINCIPLES THEREOF.
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.
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.
360 COMMUNICATIONS COMPANY
By:
Attested:
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>
ASSIGNMENT
(To be executed by the registered Holder if such Holder desires to transfer this
Security)
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]
this Security of 360 COMMUNICATIONS COMPANY, together with all right, title and
interest herein, and does hereby irrevocably constitute and appoint , Attorney,
to transfer this Security in the Security Register, with full power of
substitution in the premises.
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.
-8-
<PAGE>
360 COMMUNICATIONS COMPANY
7.60% Senior Notes Due 2009
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.
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.
