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As filed with the Securities and Exchange Commission on February 7, 1997
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
Under
The Securities Act of 1933
360(degree) Communications Company
(Exact name of registrant as specified in its charter)
Delaware 47-0649117
(State or other jurisdiction of (I.R.S. Employer
Incorporation or organization) Identification No.)
8725 W. Higgins Road
Chicago, Illinois 60631-2702
(773) 399-2500
(Address, including zip code and telephone number, including area code of
registrant's principal executive offices)
Kevin C. Gallagher, Esq.
Senior Vice President, General Counsel and Secretary
8725 W. Higgins Road
Chicago, Illinois 60631-2702
(773) 399-2500
(Name, address, including zip code and telephone number, including area
code, of agent for service)
Approximate date of commencement of proposed
sale to the public: From time to time after the effective date of this
Registration Statement as determined by market conditions.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box.|_|
If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box.|X|
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering.|_|
If this form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering.|_|
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box.|_|
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
<S> <C> <C> <C> <C>
Proposed Proposed
Amount Maximum Maximum Amount of
Title of Each Class of Securities to be Offering Price Aggregate Registration
to be Registered Registered(1) per Unit(2) Offering Price(2) Fee
Debt Securities and Warrants to Purchase
Debt Securities. . . . . . . . . . . . . . . . ..$500,000,000 100% $500,000,000 $151,516
</TABLE>
(1) If any Debt Securities are issued at an original issue discount, such
greater amount as shall result in an aggregate initial offering price of
$500,000,000.
(2) Exclusive of accrued interest, if any. Estimated solely for the purpose of
calculating the registration fee pursuant to Rule 457.
The registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant shall
file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933, as amended, or until this Registration Statement
shall become effective on such date as the Commission, acting pursuant to said
Section 8(a), may determine.
<PAGE>
SUBJECT TO COMPLETION, DATED FEBRUARY 7, 1997
PROSPECTUS
360(degree) Communications Company
Debt Securities
Warrants to Purchase Debt Securities
360(degree) Communications Company (the"Company") may offer from time to
time its unsecured senior debt securities (the "Debt Securities") and/or
warrants (the "Warrants") to purchase Debt Securities at prices and on terms to
be determined when an agreement to sell is made or at the time or times of sale,
as the case may be. The Debt Securities and the Warrants offered pursuant to
this Prospectus may be issued in one or more series or issuances, as the case
may be, and the aggregate initial offering price thereof will not exceed
$500,000,000. The Debt Securities and the Warrants are collectively referred to
herein as the "Securities."
This Prospectus will be supplemented by an accompanying prospectus
supplement or supplements ("Prospectus Supplement") that will set forth, in the
case of any Debt Securities for which this Prospectus is being delivered
("Offered Debt Securities"), the form in which such Debt Securities are to be
issued and the designation thereof, the aggregate principal amount, rate or
rates (or method of calculation thereof) and times of payment of interest,
maturity or maturities, the purchase price or prices and initial offering price
or prices, redemption or repurchase provisions, if any, and other specific terms
of such Debt Securities and, in the case of any Warrants for which this
Prospectus is being delivered ("Offered Warrants"), a description of the Debt
Securities for which each such Warrant is exercisable and the offering price, if
any, exercise price, duration, detachability and other specific items of such
Warrants. See "Description of Debt Securities" and "Description of Warrants"
herein.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF
THIS PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
The Company may sell the Securities to or through underwriters, dealers
or agents, or directly to one or more purchasers. The Prospectus Supplement will
set forth the names of underwriters or agents, if any, any applicable
commissions or discounts and the net proceeds to the Company from any such sale.
See "Plan of Distribution" for possible indemnification arrangements for
underwriters, dealers and agents.
The date of this Prospectus is , 1997.
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Information herein is subject to completion or amendment. A registration
statement relating to these securities has been filed with the Securities and
Exchange Commission. These securities may not be sold nor may offers to buy be
accepted prior to the time the registration statement becomes effective. This
prospectus shall not constitute an offer to sell or the solicitation of an offer
to buy nor shall there be any sale of these securities in any State in which
such offer, solicitation or sale would be unlawful prior to registration or
qualification under the securities laws of any such State.
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AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and, in
accordance therewith, files reports, proxy statements and other information with
the Securities and Exchange Commission (the "Commission"). The Registration
Statement of which this Prospectus is a part, as well as reports, proxy
statements and other information filed by the Company with the Commission
pursuant to the informational requirements of the Exchange Act, may be inspected
and copied at the public reference facilities maintained by the Commission at
450 Fifth Street N.W., Washington, D.C. 20549, and at the following Regional
Offices of the Commission: Northeast Regional Office, 7 World Trade Center,
Suite 1300, New York, New York 10048; and Midwest Regional Office, Citicorp
Center, 500 West Madison Street, Suite 1400, Chicago, Illinois 60661. Copies of
such material may be obtained from the Public Reference Section of the
Commission at 450 Fifth Street N.W., Washington, D.C. 20549 at prescribed rates.
Such material may also be accessed electronically by means of the Commission's
Web site maintained on the Internet at http://www.sec.gov. Such reports and
other information concerning the Company can also be inspected at the offices of
the New York Stock Exchange, Inc., 20 Broad Street, New York, New York 10005;
The Chicago Stock Exchange, Incorporated, 440 South LaSalle Street, Chicago,
Illinois 60605; and The Pacific Stock Exchange Incorporated, 301 Pine Street,
San Francisco, California 94104.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents have been filed by the Company with the
Commission pursuant to the Exchange Act and are hereby incorporated herein by
reference and made a part of this Prospectus:
(a) The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1995, as amended and supplemented by Form 10-K/A thereto filed with
the Commission on April 15, 1996.
(b) The Company's Quarterly Reports on Form 10-Q for the quarterly
periods ended March 31, 1996, June 30, 1996 and September 30, 1996.
(c) The Company's Current Reports on Form 8-K dated March 26, 1996,
April 23, 1996, July 16, 1996, October 15, 1996, November 1, 1996 and January
24, 1997.
All documents filed by the Company with the Commission pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of
this Prospectus and prior to the termination of the offering of the Securities
shall be deemed to be incorporated by reference in this Prospectus and to be a
part hereof from the date of filing such documents. Any statement contained in a
document incorporated or deemed to be incorporated by reference herein shall be
deemed to be modified or superseded for purposes of this Prospectus to the
extent that a statement contained herein or in any subsequently filed document
which is deemed to be incorporated by reference herein modifies or supersedes
such statement. Any statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this Prospectus.
The Company will provide without charge to each person, including any
beneficial owner, to whom a copy of this Prospectus is delivered, upon written
or oral request of such person, a copy of any or all of the documents referred
to above which have been or may be incorporated by reference in this Prospectus
(not including the exhibits to such documents, unless such exhibits are
specifically incorporated by reference in such documents). Requests for such
documents should be directed to 360(degree) Communications Company, 8725 W.
Higgins Road, Chicago, Illinois 60631-2702, Attention: Investor Relations,
telephone (773) 399-2500.
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THE COMPANY
The Company is one of the leading and most established wireless
communications companies in the United States. As of December 31, 1996, the
Company served approximately 2 million customers in more than 100 markets in 16
states. The Company's interests in these markets represent approximately 24.2
million Net POPs as of December 31, 1996. The Company also owns, as of December
31, 1996, minority interests in 53 additional cellular telephone markets
representing approximately 4.4 million Net POPs, including markets located in
New York, New York; Chicago, Illinois; Houston, Texas; and Orlando, Florida. The
Company sells and markets wireless voice and data services and related products,
as well as residential long distance service, through a distribution network
consisting of nationally recognized and local dealers, full service retail
stores and a direct sales force. "Net POPs" refers to the estimated population
with respect to a given service area multiplied by the percentage interest that
the Company owns in the entity licensed by the Federal Communications Commission
to operate a cellular communications system within that service area.
The Company was incorporated under the laws of the State of Delaware in
1982. In March 1993, Centel Corporation, then the Company's immediate parent,
merged with a wholly-owned subsidiary of Sprint Corporation ("Sprint"). In
February 1996, the Company, then known as Sprint Cellular Company, changed its
name to 360(degree) Communications Company. On March 7, 1996, Sprint completed
the spin-off of the Company through a pro rata distribution to Sprint
shareholders of all of the Common Stock of the Company.
The Company's principal executive offices are located at 8725 W. Higgins
Road, Chicago, Illinois 60631-2702, and its telephone number is (773) 399-2500.
USE OF PROCEEDS
Unless otherwise indicated in an accompanying Prospectus Supplement, the
net proceeds to be received by the Company from the sale of the Securities will
be available for general corporate purposes of the Company and may be used for
the repayment of short-term debt and borrowings under the Company's revolving
credit facility and for the funding of future acquisitions, capital expenditures
and working capital requirements.
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth the ratio of earnings to fixed charges
for the Company and its subsidiaries for the periods indicated:
Nine Months
Ended
September 30, Years Ended December 31,
1996 1995 1994 1993 1992 1991
Ratio of Earnings to
Fixed Charges(1): 2.23 1.32 -- -- -- --
- ----------
(1) The ratio of earnings to fixed charges have been computed by dividing
fixed charges into the sum of (a) income (loss) before cumulative effects of
changes in accounting principles, less capitalized interest, and with
adjustments to appropriately reflect the Company's majority-owned, 50%-owned and
less-than-50%-owned affiliates, (b)income taxes and (c) fixed charges. Fixed
charges consist of interest on all indebtedness and the interest component of
operating rents, with adjustments as appropriate to reflect the Company's
50%-owned affiliates. For each of the four years in the period ended December
31, 1994, the deficit of earnings to fixed charges was $8,912,000, $60,217,000,
$94,819,000 and $77,607,000, respectively.
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DESCRIPTION OF DEBT SECURITIES
The Debt Securities will constitute senior unsecured debt securities of
the Company and will be issued under an Indenture (the "Indenture") to be
entered into between the Company and Citibank, N.A., as trustee (the "Trustee").
A copy of the Indenture is filed as an exhibit to the Registration Statement of
which this Prospectus is a part. The following summaries of certain provisions
of the Indenture do not purport to be complete and are qualified in their
entirety by express reference to the detailed provisions of the Indenture,
including the definitions therein of certain terms. References to article and
section numbers under this heading are to articles and section numbers in the
Indenture. Terms used under this heading or in any Prospectus Supplement
relating to the Offered Debt Securities which are defined under this heading are
so defined solely with reference to the Offered Debt Securities.
General
The Indenture does not limit the aggregate principal amount of Debt
Securities that can be issued thereunder and provides that Debt Securities of
any series may be issued thereunder up to the aggregate principal amount that
may be authorized from time to time by the Company. (Art.Three, Sec. 301)
Although the Indenture does not expressly limit the aggregate principal amount
of Debt Securities that can be issued thereunder, the Indenture contains
provisions that limit the amount of indebtedness, including indebtedness
evidenced by the Debt Securities, that may be incurred by the Company and its
subsidiaries. See "Certain Covenants -- Limitation on Indebtedness" below.
Reference is made to the applicable Prospectus Supplement for the
following terms of the Offered Debt Securities (among others): (i) the title of
such Offered Debt Securities; (ii) the limit, if any, upon the aggregate
principal amount of such Offered Debt Securities that may be issued; (iii) the
rate or rates, or the method of determination thereof, at which such Offered
Debt Securities will bear interest, if any, and the date or dates from which
such interest shall accrue; (iv) the dates on which such interest will be
payable (each, an "Interest Payment Date") and the regular record dates for the
interest payable on such Interest Payment Dates; (v) the obligation, if any, of
the Company to redeem or purchase such Offered Debt Securities pursuant to any
sinking fund or analogous provisions or at the option of the holder thereof and
the periods within which or the dates on which, the prices at which and the
terms and conditions upon which such Offered Debt Securities will be redeemed or
purchased, in whole or in part, pursuant to such obligations; (vi) the periods
within which or the dates on which, the prices at which and the terms and
conditions upon which such Offered Debt Securities may be redeemed, if any, in
whole or in part, at the option of the Company; (vii) if other than
denominations of $1,000 and any integral multiple thereof, the denominations in
which such Offered Debt Securities will be issuable; (viii) whether such Offered
Debt Securities are to be issued in whole or in part in the form of one or more
global Debt Securities and, if so, the identity of the depositary for such
global Debt Securities; and (ix) any other terms of such Offered Debt Securities
not inconsistent with the provisions of the Indenture.
Except for the limitations discussed below under "Certain Covenants --
Limitation on Indebtedness" and "Certain Covenants -- Limitation on Liens," the
Indenture does not contain any covenants or other provisions that may afford
holders of the Debt Securities special protection in the event of a highly
leveraged transaction.
Ranking
The Debt Securities will be senior unsecured obligations of the Company,
will rank pari passu in right of payment with all existing and future
unsubordinated, unsecured indebtedness of the Company ("Senior Indebtedness"),
including indebtedness under the 1996 Indenture (as defined below) and the
Credit Facility (as defined below), and will be senior in right of payment to
all future subordinated indebtedness of the Company. (Art. Three, Sec. 301) As
of December 31, 1996, $900 million of the Company's senior notes issued under an
Indenture (the "1996 Indenture") dated as of March 7, 1996 between the Company
and Citibank, N.A., as Trustee, were outstanding and approximately $680 million
in borrowings were outstanding under the Amended and Restated Credit Agreement
(the"Credit Facility") dated as of October 31, 1996 among the Company and a
number of banks and institutional lenders. As of December 31, 1996, $122 million
in aggregate principal amount of debt subordinated to the Senior Indebtedness
was outstanding. Such subordinated debt is evidenced by the Company's
subordinated non-negotiable promissory notes (the "Subordinated Notes").
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All existing and future indebtedness and other liabilities of the
Company's subsidiaries, however, will be effectively senior in right of payment
to the Debt Securities. Claims of creditors of the Company's subsidiaries,
including trade creditors, will generally have a priority as to the assets of
such subsidiaries over the claims of the Company and the holders of the
Company's indebtedness, including the Debt Securities. Under the Indenture,
indebtedness may be incurred, subject to certain limitations, by subsidiaries of
the Company. See "Certain Covenants -- Limitation on Indebtedness" below.
The Debt Securities will be obligations exclusively of the Company.
Since the operations of the Company are primarily conducted through subsidiaries
of the Company, the cash flow and the consequent ability to service debt,
including the Debt Securities, of the Company is primarily dependent upon the
earnings of such subsidiaries and the distribution of those earnings to, or upon
loans or other payments of funds by, such subsidiaries to the Company. The
payment of dividends and the making of loans and advances to the Company by its
subsidiaries may be subject to statutory or contractual restrictions, are
dependent upon the earnings of such subsidiaries and are subject to various
business considerations.
Payment of Debt Securities; Transfers; Exchanges
Except as may be provided in the applicable Prospectus Supplement,
interest, if any, on each Offered Debt Security payable on each Interest Payment
Date will be paid by check mailed to the person in whose name such Debt Security
is registered (the registered holder of any Debt Security being herein called a
"Holder") as of the close of business on the regular record date relating to
such Interest Payment Date; provided, however, that interest payable at maturity
(whether at stated maturity, upon redemption or otherwise, hereinafter
"Maturity") will be paid to the person to whom principal is paid. However, if
there has been a default in the payment of interest on any Debt Security, such
defaulted interest may be payable to the Holder of such Debt Security as of the
close of business on a date selected by the Trustee not more than 15 days and
not less than 10 days prior to the date proposed by the Company for payment of
such defaulted interest.
Principal of and premium, if any, and interest, if any, on the Debt
Securities at Maturity will be payable upon presentation of the Debt Securities
at the principal corporate trust office of the Trustee in New York, New York.
The Company may change the place of payment on the Debt Securities, may appoint
one or more paying agents (including the Company) and may remove any paying
agent, all in its discretion. The applicable Prospectus Supplement will identify
any new place of payment and any paying agent appointed, and will disclose the
removal of any paying agent effected, prior to the date of such Prospectus
Supplement.
The transfer of Debt Securities may be registered and Debt Securities
may be exchanged for other Debt Securities of authorized denominations and of
like tenor and aggregate principal amount, at the principal corporate trust
office of the Trustee in New York, New York. The Company may change the place
for registration of transfer of the Debt Securities, may appoint one or more
additional security registrars or transfer agents (including the Company) and
may remove any security registrar or transfer agent appointed, all in its
discretion. The applicable Prospectus Supplement will identify any new place for
registration of transfer and any additional security registrar or transfer agent
appointed, and will disclose the removal of any security registrar or transfer
agent effected, prior to the date of such Prospectus Supplement. No service
charge will be made for any transfer or exchange of the Debt Securities, but the
Company may require payment of a sum sufficient to cover any tax or other
governmental charge payable in connection therewith. (Art. Three, Sec. 305) The
Company will not be required (a) to issue, register the transfer of or exchange
Debt Securities during a period of 15 days prior to giving any notice of
redemption or (b) to issue, register the transfer of or exchange any Debt
Security selected for redemption in whole or in part, except the unredeemed
portion of any Debt Security being redeemed in part.
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Purchase at the Option of Holders Upon a Change of Control
Upon the occurrence of a Change of Control Triggering Event (as defined
below), each Holder of Debt Securities of any series subject to such Change of
Control Triggering Event shall have the right to require the Company to purchase
all or any part (equal to $1,000 or an integral multiple thereof) of such
Holder's Debt Securities pursuant to the offer described below (the "Change of
Control Offer") at a purchase price equal to 101% of the principal amount
thereof, plus accrued and unpaid interest thereon, if any, to the purchase date
(the "Change of Control Purchase Price"). Without the appropriate consent of the
Holders of the Debt Securities of such series, neither the Board of Directors of
the Company nor the Trustee may waive the provisions of the Indenture requiring
the Company to make a Change of Control Offer upon a Change of Control
Triggering Event with respect to the Debt Securities of such series. (Art. Ten,
Sec. 1001)
Within 30 days following any Change of Control Triggering Event, the
Company shall (i) cause a notice of the Change of Control Offer to be sent at
least once to the Dow Jones News Service or similar business news service in the
United States and (ii) mail a notice to the Trustee and each Holder of Debt
Securities of any series subject to such Changeof Control Triggering Event
stating (1) that a Change of Control Triggering Event has occurred and a Change
of Control Offer is being made pursuant to the covenant in the Indenture
entitled "Repurchase of Securities at Option of the Holder Upon a Change of
Control" and that all Debt Securities of such series timely tendered will be
accepted for payment; (2) the purchase price and the purchase date, which shall
be, subject to any contrary requirement of applicable law, a business day no
earlier than 30 days nor later than 60 days from the date such notice is mailed
(the "Change of Control Payment Date"); (3) that any Debt Security of such
series (or portion thereof) accepted for payment (and duly paid on the Change of
Control Payment Date) pursuant to the Change of Control Offer shall cease to
accrue interest after the Change of Control Payment Date; (4) that any Debt
Securities of such series (or portions thereof) not tendered will continue to
accrue interest; (5) a description of the transaction or transactions
constituting the Change of Control Triggering Event; and (6) the procedures that
Holders of Debt Securities of such series must follow in order to tender their
Debt Securities (or portions thereof) for payment and the procedures that
Holders of Debt Securities of such series must follow in order to withdraw an
election to tender their Debt Securities (or portions thereof) for payment.
(Art. Ten, Sec. 1001)
Under the Indenture, a "Change of Control Triggering Event" is defined
as the occurrence of both a Change of Control (as defined below) and a Rating
Decline (as defined below) with respect to the Debt Securities of any series.
"Change of Control" is defined as the occurrence of any of the following events:
(i) any "person" or "group" (within the meaning of Sections 13(d) and 14(d) of
the Exchange Act (provided that a group formed solely for the purpose of voting
securities shall not be deemed to be a group for purposes of this definition))
is or becomes the "beneficial owner" (as defined in Rule 13d-3 under the
Exchange Act), directly or indirectly, of 35% or more of the total voting power
of the fully diluted Voting Stock (defined as all classes of capital stock
normally entitled to vote in the election of directors) of the Company; (ii)
during any period of two consecutive years, individuals who at the beginning of
such period constituted the Board of Directors of the Company (together with new
directors whose election by the Board of Directors of the Company or whose
nomination for election by the shareholders of the Company was approved by a
vote of 66 2/3% of the directors of the Company then still in office who were
either directors at the beginning of such period or whose election or nomination
for election was previously so approved) cease for any reason to constitute a
majority of the Board of Directors of the Company then in office; (iii) the
Company consolidates or merges with or into any other Persons (as defined below)
or any other Person consolidates or merges with or into the Company, in either
case, other than a consolidation or merger (a) with a wholly-owned subsidiary of
the Company in which all of the Voting Stock of the Company outstanding
immediately prior to the effectiveness thereof is changed into or exchanged for
substantially the same consideration or (b) pursuant to a transaction in which
the outstanding Voting Stock of the Company is changed into or exchanged for
cash, securities or other property with the effect that the "beneficial owners"
(as such term is used in Section 13(d) of the Exchange Act) of the outstanding
Voting Stock of the Company immediately prior to such transaction, beneficially
own, directly or indirectly, more than 50% of the total voting power of the
fully diluted Voting Stock of the surviving corporation immediately following
such transaction; or (iv) the Company sells, conveys, transfers or leases,
directly or indirectly, all or substantially all of its assets to any Person
other than a wholly-owned subsidiary of the Company. "Person" is defined as any
individual, corporation, company (including any limited liability company),
partnership, joint venture, trust, unincorporated organization or government or
any agency or political subdivision thereof.
A "Rating Decline" with respect to the Debt Securities of any series is
defined under the Indenture as the occurrence of the following on, or within
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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 assigned to the Debt Securities of such
series is under publicly announced consideration for the possible downgrade by
any of Standard & Poor's Rating Group, a division of McGraw Hill, Inc. ("S&P"),
Duffs & Phelps Credit Rating Co. ("Duff & Phelps") and Moody's Investors
Service, Inc. ("Moody's") (or any successor to the respective rating agency
businesses thereof, collectively, the "Rating Agencies")): (a) in the event the
Debt Securities of such series are assigned an Investment Grade Rating (as
defined below) by at least two of the three Rating Agencies on the Rating Date
(as defined below), the rating of the Debt Securities of such series by at least
two of the three Rating Agencies shall be below an Investment Grade Rating; or
(b) in the event the Debt Securities of such series are rated below an
Investment Grade Rating by at least two of the three Rating Agencies on the
Rating Date, the rating of the Debt Securities of such series by at least two of
the three Rating Agencies shall be decreased by one or more gradations
(including gradations within rating categories as well as between rating
categories). "Investment Grade Rating" is defined as a rating equal to or higher
than Baa3 (or the equivalent) by Moody's, BBB- (or the equivalent) by S&P and
BBB- (or the equivalent) by Duff & Phelps. "Rating Date" is defined as the date
which is 90 days prior to the earlier of (i) a Change of Control and (ii) public
notice of the occurrence of a Change of Control or the intention of the Company
to effect a Change of Control.
The Company will comply to the extent then applicable and required by
law with the requirements of Rule 14e-1 under the Exchange Act and any other
securities laws and regulations thereunder in connection with the purchase of
Debt Securities in connection with a Change of Control. To the extent that the
provisions of any securities laws or regulations conflict with the provisions
relating to the Change of Control Offer, the Company will comply with the
applicable securities laws and regulations and will not be deemed to have
breached its obligations described above by virtue thereof.
(Art. Ten, Sec. 1002)
Except as described above with respect to a Change of Control Triggering
Event and except as may be set forth in the applicable Prospectus Supplement,
the Holders of the Debt Securities of any series are not entitled to any other
rights to require the Company to purchase or redeem their Debt Securities in the
event of a takeover, recapitalization or similar restructuring.
The 1996 Indenture contains change of control repayment provisions
substantially identical to those contained in the Indenture. The occurrence of
certain of the events that would constitute a Change of Control under the
Indenture and the 1996 Indenture would constitute an event of default under the
Credit Facility. If the Company is not able to obtain requisite consents or
waivers from the lenders under the Credit Facility, the Company may be unable to
fulfill its repurchase obligations following a Change of Control Triggering
Event, thereby resulting in a default under the Indenture and the 1996 Indenture
and permitting the pursuit of remedies thereunder. Future Senior Indebtedness of
the Company may also contain prohibitions of certain events that would
constitute a Change of Control or require such Senior Indebtedness to be
repurchased upon a Change of Control. Moreover, the exercise by the Holders of
Debt Securities of any series of their right to require the Company to
repurchase such Debt Securities could cause a default under such Senior
Indebtedness, even if the Change of Control Triggering Event itself does not,
due to the financial effect of such repurchase obligation on the Company.
Finally, the Company's ability to pay cash to the Holders upon a repurchase may
be limited by the Company's then existing financial resources. In the event that
a Change of Control Offer occurs at a time when the Company does not have
sufficient available funds to pay the Change of Control Purchase Price for all
Debt Securities tendered pursuant to such offer, or a time when the Company is
prohibited from purchasing such Debt Securities (and the Company is unable
either to obtain the consent of the holders of the relevant indebtedness or to
repay such indebtedness), an Event of Default (as defined below) would occur
under the Indenture.
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Redemption
Any terms for the optional or mandatory redemption of Offered Debt
Securities by the Company (other than as discussed above under "Purchase at the
Option of Holders Upon a Change of Control") will be set forth in the applicable
Prospectus Supplement. Except as may otherwise be provided in the applicable
Prospectus Supplement with respect to Offered Debt Securities redeemable at the
option of the Holder, such Offered Debt Securities will be redeemable only upon
notice, by mail, not less than 30 or more than 60 days prior to the date fixed
for redemption, and if less than all of the Offered Debt Securities of any
series, or any tranche thereof, are to be redeemed, the particular Offered Debt
Securities will be selected by such methods as the Trustee deems fair and
appropriate. (Art. Four, Sec. 403 and 404)
Events of Default
The following constitute "Events of Default" under the Indenture with
respect to each series of Debt Securities outstanding thereunder:
(a) failure to pay any interest on any Debt Security of such series
within 30 days after the same become due and payable;
(b) failure to pay the principal of, or premium, if any, on any
Debt Security of such series when the same becomes due and payable at
maturity, upon acceleration, optional redemption, required purchase
(including purchases described above under "Purchase at the Option of
Holders Upon a Change of Control") or otherwise;
(c) failure to perform or breach of any covenant or warranty of the
Company in the Indenture described under "Certain Covenants" below for 30
days after written notice to the Company by the Trustee, or to the Company
and the Trustee by the Holders of at least 25% in principal amount of the
Debt Securities of such series outstanding under the Indenture as provided
in the Indenture;
(d) failure to perform or breach of any other covenant or warranty
of the Company in the Indenture (other than a covenant or warranty of the
Company in the Indenture solely for the benefit of one or more series of
Debt Securities other than the Debt Securities of such series) for 60 days
after written notice to the Company by the Trustee, or to the Company and
the Trustee by the Holders of at least 25% in principal amount of the Debt
Securities of such series outstanding under the Indenture as provided in
the Indenture;
(e) failure of the Company or any Restricted Subsidiary to pay when
due within any applicable grace period principal, interest or premium
aggregating $25 million or more with respect to any indebtedness of the
Company or any Restricted Subsidiary (as defined below) (including
indebtedness under the 1996 Indenture and the Credit Facility) or the
acceleration of any such indebtedness;
(f) any final judgment or decree for the payment of money in an
uninsured aggregate amount in excess of $25 million shall be rendered
against the Company or any Restricted Subsidiary and shall not be waived,
satisfied or discharged for any period of 60 consecutive days during which
a stay of enforcement shall not be in effect;
(g) certain events of bankruptcy, insolvency or reorganization with
respect to the Company or any Restricted Subsidiary; and
(h) any other Event of Default specified with respect to Debt
Securities of such series. (Art. Eight, Sec. 801)
No Event of Default with respect to the Debt Securities of a series
necessarily constitutes an Event of Default with respect to the Debt Securities
of any other series issued under the Indenture. A "Default," with respect to the
Debt Securities of any series, is defined as any event which is, or after notice
or passage of time or both would be, an Event of Default with respect to the
Debt Securities of such series.
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Remedies
If an Event of Default with respect to any series of Debt Securities
occurs and is continuing, then either the Trustee or the Holders of not less
than 25% in principal amount of the outstanding Debt Securities of such series
may declare the principal amount (or if the Debt Securities of such series are
discount notes or similar Debt Securities, such portion of the principal amount
of such Debt Securities as may be specified in the terms thereof) of all the
Debt Securities of such series to be due and payable immediately; provided,
however, that if an Event of Default occurs and is continuing with respect to
more than one series of Debt Securities, the Trustee or the Holders of not less
than 25% in aggregate principal amount of the outstanding Debt Securities of all
such series, considered as one class, may make such declaration of acceleration
and not the Holders of the Debt Securities of any one of such series.
At any time after the declaration of acceleration with respect to the
Debt Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained, the Event or Events of Default
giving rise to such declaration of acceleration will, without further act, be
deemed to have been waived, and such declaration and its consequences will,
without further act, be deemed to have been rescinded and annulled, if:
(a) the Company has paid or deposited with the Trustee a sum
sufficient to pay:
(1) all overdue interest on all Debt Securities of such series;
(2) the principal of and premium, if any, on any Debt
Securities of such series which have become due otherwise than by
such declaration of acceleration and interest thereon at the rate
or rates prescribed therefore in such Debt Securities;
(3) interest upon overdue interest at the rate or rates
prescribed therefor in such Debt Securities, to the extent that
payment of such interest is lawful; and
(4) all amounts due to the Trustee under the Indenture; and
(b) any other Event or Events of Default with respect to the Debt
Securities of such series, other than the nonpayment of the
principal of the Debt Securities of such series which has become
due solely by such declaration of acceleration, have been cured
or waived as provided in the Indenture. (Art. Eight, Sec. 802)
If an Event of Default with respect to the Debt Securities of any series
occurs and is continuing, the Holders of a majority in principal amount of the
outstanding Debt Securities of such series will have the right to direct the
time, method and place of conducting any proceeding for any remedy available to
the Trustee, or exercising any trust or power conferred on the Trustee, with
respect to the Debt Securities of such series; provided, however, that if an
Event of Default occurs and is continuing with respect to more than one series
of Debt Securities, the Holders of a majority in aggregate principal amount of
the outstanding Debt Securities of all such series, considered as one class,
will have the right to make such direction, and not the Holders of the Debt
Securities of any one of such series. (Art. Eight, Sec. 812) The Trustee is not
required to exercise any of the rights and powers vested in it under the
Indenture at the request or direction of any Holder unless such Holder shall
have offered to the Trustee reasonable security or indemnity against the costs,
expenses and liabilities which might be incurred by it in compliance with such
request or direction. (Art. Nine, Sec. 903) The right of a Holder of any Debt
Security of such series to institute a proceeding with respect to the Indenture
is subject to certain conditions precedent, but each Holder has an absolute
right to receive payment of principal and premium, if any, and interest, if any,
when due and to institute suit for the enforcement of any such payment. (Art.
Eight, Sec. 807 and 808) The Indenture provides that the Trustee is required,
within 90 days after the occurrence of any Default thereunder with respect to
the Debt Securities of a series, to give the Holders of the Debt Securities of
such series notice of any Default known to it, unless cured or waived; provided,
however, that, except in the case of a Default in the payment of principalof or
premium, if any, or interest, if any, on any Debt Securities of such series, the
Trustee may withhold such notice if the Trustee determines that it is in the
interest of such Holders to do so; and provided, further, that in the case of a
default of the character specified above in clauses (c) and (d) under "Events of
Default," no such notice shall be given to such Holders until at least 75 days
after the occurrence thereof. (Art. Nine, Sec. 902)
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The Company will be required to furnish annually to the Trustee a
statement as to the performance by the Company of certain of its obligations
under the Indenture and as to any default in such performance.
(Art. Six, Sec. 612)
Certain Covenants
Set forth below are certain covenants contained in the Indenture. If at any
time (i) the ratings assigned to the Debt Securities of any series by at least
two of the three Rating Agencies are Investment Grade Ratings and (ii) no
Default or Event of Default has occurred and is continuing under the Indenture
with respect to the Debt Securities of such series, then the Company and the
Restricted Subsidiaries will no longer be subject at any time thereafter to the
provisions of the Indenture with respect to the Debt Securities of such series
described below under "Limitation on Indebtedness," "Limitation on Restricted
Payments," "Limitation on Asset Sales," "Limitation on Restrictions on
Distributions from Restricted Subsidiaries," "Limitation on Transactions with
Affiliates," clauses (i), (iii) and (iv) of "Designation of Restricted and
Unrestricted Subsidiaries" and clause (d) of "Merger, Consolidation and Sale of
Assets" (collectively, the "Terminating Covenants"). (Art. Six, Sec. 601)
The 1996 Indenture contains covenants substantially identical to the
Terminating Covenants. Under the 1996 Indenture, however, in the event that the
Company and the Restricted Subsidiaries are not subject to such covenants with
respect to the senior notes issued thereunder as a result of the occurrence of
the events described in the preceding paragraph, and, subsequently, at least two
of the three Rating Agencies withdraw their ratings or assign to such senior
notes a rating below an Investment Grade Rating, then, under the 1996 Indenture,
the Company and the Restricted Subsidiaries will thereafter again be subject to
such covenants with respect to such senior notes. The Indenture does not contain
a similar provision with respect to the Debt Securities.
Limitation on Indebtedness. The Indenture provides that the Company shall
not, and shall not permit any Restricted Subsidiary to, directly or indirectly,
incur any Indebtedness (defined as any indebtedness, secured or unsecured,
contingent or otherwise, which is for borrowed money) unless either (a) after
giving effect to the incurrence of such Indebtedness and the receipt and
application of the proceeds thereof, the Leverage Ratio (as defined below) would
not exceed 6.5 or (b) such Indebtedness is Permitted Indebtedness (as defined
below). (Art. Six, Sec. 603)
"Permitted Indebtedness" is defined under the Indenture to include any and
all of the following: (i) Indebtedness incurred pursuant to the Credit Facility
in an aggregate amount outstanding at any time not to exceed $800 million; (ii)
Indebtedness in respect of capital lease obligations or capital expenditures,
subject, in each case, to the limits set forth in the Indenture; (iii)
Indebtedness evidenced by the senior notes issued under the 1996 Indenture and
Indebtedness evidenced by the Subordinated Notes; (iv) Indebtedness of the
Company owing to and held by a wholly-owned subsidiary of the Company and
Indebtedness of a Restricted Subsidiary owing to and held by the Company or any
wholly-owned subsidiary of the Company; provided, however, that any event that
results in any such wholly-owned subsidiary ceasing to be a wholly-owned
subsidiary of the Company or any subsequent transfer of any such Indebtedness
(except to the Company or a wholly-owned subsidiary of the Company) shall be
deemed, in each case, to constitute the incurrence of such Indebtedness by the
issuer thereof; (v) Indebtedness under interest rate swap agreements or similar
agreements entered into for the purpose of limiting interest rate risks and
currency swap agreements entered into for non-speculative purposes and designed
to hedge against fluctuations in foreign exchange rates incurred in the ordinary
course of business and consistent with prudent business practice; (vi)
Indebtedness in connection with one or more standby letters of credit or
performance bonds issued in the ordinary course of business or pursuant to
self-insurance obligations and not in connection with the borrowing of money or
the obtaining of advances or credit; (vii) Indebtedness outstanding on December
31, 1996 not otherwise described in clauses (i) through (vi) above; and (viii)
certain permitted refinancing indebtedness incurred in respect of Indebtedness
incurred pursuant to clause (a) of the immediately preceding paragraph and
clauses (i), (ii), (iii) and (vii) above. (Art. Six, Sec. 603)
Under the Indenture, "Leverage Ratio" is defined as the ratio of (i) the
outstanding Indebtedness of the Company and the Restricted Subsidiaries divided
by (ii) the sum of the Pro Forma EBITDA (as defined below) of the Company and
the Restricted Subsidiaries for the most recent four consecutive fiscal
quarters. "Pro Forma EBITDA," for any period, is defined as the EBITDA (as
defined below) of the Company and the Restricted Subsidiaries as determined on a
consolidated basis in accordance with generally accepted accounting principles,
adjusted to reflect the acquisition or sale
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of assets by the Company or any Restricted Subsidiary during such period.
"EBITDA," for any period, is defined as an amount equal to (i) the sum of (a)
consolidated net income of the Company and the Restricted Subsidiaries for such
period, plus (b) the provision for taxes for such period based on income or
profits to the extent such income or profits were included in computing
consolidated net income and any provision for taxes utilized in computing net
loss under clause (a) hereof, plus (c) consolidated interest expense of the
Company and the Restricted Subsidiaries for such period, plus (d) depreciation
for such period on a consolidated basis, plus (e) amortization of intangibles
for such period on a consolidated basis, plus (f) any other non-cash items
reducing consolidated net income for such period, minus (ii) all non-cash items
increasing consolidated net income for such period, all determined in accordance
with generally accepted accounting principles consistently applied.
The 1996 Indenture contains provisions limiting the amount of
indebtedness that may be incurred by the Company and the Restricted Subsidiaries
that are substantially identical to those contained in the Indenture. In
addition, the Credit Facility contains covenants that restrict the Company and
the Restricted Subsidiaries from incurring additional debt (subject to certain
limits on dollar amounts and maturities and except for intercompany debt,
subject to limitations, and debt incurred to hedge against interest rate risk or
foreign exchange fluctuations) and require the Company to maintain certain
maximum debt to EBITDA ratios and minimum EBITDA to interest ratios. While these
covenants, as well as other covenants contained in the Credit Facility, may be
more restrictive than comparable covenants contained in the Indenture, the
covenants contained in the Credit Facility are for the benefit of the lenders
thereunder and are subject to amendment, waiver or consent at the discretion of
such lenders.
Limitation on Restricted Payments. The Indenture provides that the
Company shall not make, and shall not permit any Restricted Subsidiary to make,
any Restricted Payment (as described below) if at the time of, and after giving
effect to, such proposed Restricted Payment, (a) a Default or Event of Default
shall have occurred and be continuing; (b) the Company could not incur at least
$1.00 of additional Indebtedness pursuant to clause (a) of the first paragraph
of "Limitation on Indebtedness" above; or (c) the aggregate amount of any such
Restricted Payment and all other Restricted Payments made since March 7, 1996
would exceed an amount equal to the sum of (i) the excess of (A) Cumulative
EBITDA (defined as the cumulative EBITDA of the Company from December 31, 1995
through the end of the fiscal quarter immediately preceding the date of
determination) over (B) the product of 1.5 and Cumulative Interest Expense
(defined as the aggregate consolidated interest expense paid, accrued or
scheduled to be paid by the Company from December 31, 1995 through the end of
the fiscal quarter immediately preceding the date of determination), (ii) net
cash proceeds received by the Company from the sale of its capital stock (other
than redeemable capital stock) after March 7, 1996, (iii) the amount by which
Indebtedness of the Company or any Restricted Subsidiary is reduced on the
Company's balance sheet upon the conversion or exchange (other than by a
subsidiary) subsequent to March 7, 1996 of any Indebtedness of the Company or
any Restricted Subsidiary convertible or exchangeable for capital stock (other
than redeemable capital stock) of the Company (less the amount of any cash or
other property distributed by the Company or any Restricted Subsidiary upon
conversion or exchange), (iv) an amount equal to the net reduction in
Investments (as defined below) made by the Company and the Restricted
Subsidiaries subsequent to March 7, 1996 in any Person resulting from (A)
payments of interest on debt, dividends, repayment of loans or advances, or
other transfers or distributions of property (but only to the extent such net
reduction in Investments has not been utilized in the calculation of EBITDA for
purposes of clause (c)(i) above or to permit an Investment pursuant to clause
(f) in the immediately following paragraph, in each case to the Company or any
Restricted Subsidiary from any person or (B) the redesignation of any
Unrestricted Subsidiary (as defined below) as a Restricted Subsidiary, not to
exceed, in the case of (A) or (B), the amount of such Investments previously
made by the Company and the Restricted Subsidiaries in such Person or such
Unrestricted Subsidiary, as the case may be, which were treated as Restricted
Payments and (v) $25 million. (Art. Six, Sec. 606) "Investments" is defined to
include any direct or indirect loan, advance or other extension of credit or
capital contribution to, or incurrence of a guarantee of any obligation of, or
purchase or acquisition of capital stock, bonds, notes, debentures or other
securities or evidences of indebtedness issued by, any other Person.
Notwithstanding the foregoing limitation, the Company may (a) pay
dividends on its capital stock; (b) redeem, repurchase, defease, acquire or
retire for value, any Indebtedness subordinate in right of payment to the Debt
Securities with the proceeds of certain refinancing indebtedness permitted under
the Indenture; (c) acquire, redeem or retire capital stock of the Company or
Indebtedness subordinate in right of payment to the Debt Securities in exchange
for, or in connection with a substantially concurrent issuance of, capital stock
of the Company (other than redeemable capital stock);
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(d) consummate an exchange of certain Investments, the primary businesses of
which are related businesses; (e) acquire capital stock in a Person
substantially all of the assets of which are subsidiaries and Investments, the
primary businesses of which are related businesses, if at least 80% of the Net
POPs of such Person are in its subsidiaries, and as a result of the acquisition
of such capital stock, such Person and its subsidiaries become Restricted
Subsidiaries of the Company; (f) make Investments in Persons, the primary
businesses of which are related businesses (other than Investments in the
capital stock of the Company), the costs to the Company of which do not exceed
$75 million in the aggregate at any one time outstanding for all such
Investments made in reliance upon this clause (f), such amount to be increased
by (i) any net cash proceeds received from the sale of Investments and (ii) an
amount equal to the net reduction in Investments made by the Company and the
Restricted Subsidiaries subsequent to March 7, 1996 in any Person, subject, in
each case, to certain limitations set forth in the Indenture; and (g) pay
scheduled dividends on preferred stock of a Restricted Subsidiary or redeemable
capital stock of the Company issued pursuant to and in compliance with the
provisions discussed above under "Limitation on Indebtedness."
Any payment made pursuant to clauses (b), (c), (d), (e) and (g) of the
immediately preceding paragraph shall be excluded from the calculation of the
aggregate amount of Restricted Payments made after the March 7, 1996; provided,
however, that the proceeds from the issuance of capital stock pursuant to clause
(c) of the immediately preceding paragraph shall not constitute net cash
proceeds from the sale of capital stock for purposes of clause (c)(ii) of the
first paragraph under "Limitation on Restricted Payments" above to the extent
utilized to acquire, redeem or retire capital stock of the Company or repay
Indebtedness subordinate in right of payment to the Debt Securities.
(Art. Six, Sec. 606)
Limitation on Liens. The Indenture provides that the Company shall not,
and shall not permit any Restricted Subsidiary to, directly or indirectly, incur
or suffer to exist, any mortgage, pledge, security interest or lien ("Lien")
upon any of its property or assets, whether now owned or hereinafter acquired,
or any interest therein or any income or profits therefrom, unless it has made
or will make effective provision whereby the Debt Securities will be secured by
such Lien equally and ratably with (or prior to) all other Indebtedness of the
Company or any Restricted Subsidiary secured by such Lien for so long as any
such other Indebtedness of the Company or any Restricted Subsidiary shall be so
secured. (Art.
Six, Sec. 605)
The foregoing limitation does not apply to (i) Liens incurred by the
Company or any Restricted Subsidiary if, after giving effect to such incurrence
on a pro forma basis, the amount of the total Indebtedness of the Company and
the Restricted Subsidiaries that is secured by a Lien does not exceed 15% of the
product of (a) the sum of the Pro Forma EBITDA of the Company for the most
recent four consecutive fiscal quarters and (b) 6.5; (ii) Liens on property
existing on March 7, 1996; (iii) Liens on property to secure any extension,
renewal, refinancing, replacement or refunding, in whole or in part, of any
Indebtedness secured by Liens referred to in any of the clauses (i), (ii),
(viii) or (xi); (iv) Liens for taxes, assessments or governmental charges or
levies if the same shall not at the time be delinquent or thereafter can be paid
without penalty, or are being contested in good faith and by appropriate
proceedings; (v) Liens imposed by law, such as carriers', warehousemen's and
mechanics' Liens and other similar Liens arising in the ordinary course of
business which secure payment of obligations not more than 60 days past due or
are being contested in good faith and by appropriate proceedings; (vi) Liens
incurred in the ordinary course of business to secure performance of obligations
with respect to statutory or regulatory requirements, performance or
return-of-money bonds, surety bonds or other obligations of a like nature and
incurred in a manner consistent with industry practice; (vii) Liens incurred to
secure appeal bonds and judgment and attachment Liens, in each case in
connection with litigation or legal proceedings which are being contested in
good faith by appropriate proceedings so long as reserves have been established
to the extent required by generally accepted accounting principles as in effect
at such time and so long as such Liens do not encumber assets by an amount in
excess of $25 million; (viii) Liens on property at the time the Company or any
Restricted Subsidiary acquired or constructed such property, including any
acquisition by means of a merger or consolidation with or into the Company or
such Restricted Subsidiary; (ix) other Liens on the property of the Company or
any Restricted Subsidiary incidental to the conduct of their respective
businesses or the ownership of their respective properties which were not
created in connection with the incurrence of Indebtedness or the obtaining of
advances or credit and which do not in the aggregate materially detract from the
value of their respective properties or materially impair the use thereof in the
operation of their respective businesses; (x) pledges or deposits under
workmen's compensation laws, unemployment insurance laws or similar legislation,
or good faith deposits in connection with bids, tenders, contracts (other than
for the payment of Indebtedness) or leases to which the Company or any
Restricted Subsidiary is a party, or deposits to secure
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public or statutory obligations of the Company or any Restricted Subsidiary or
deposits for the payment of rent, in each case incurred in the ordinary course
of business; (xi) Liens on the property of a Person at the time such Person
becomes a Restricted Subsidiary; provided, however, that any such Lien may not
extend to any other property of the Company or any other Restricted Subsidiary
which is not a direct subsidiary of such Person; provided, further however, that
any such Lien was not incurred in anticipation of or in connection with the
transaction or series of related transactions pursuant to which such Person
became a Restricted Subsidiary; (xii) utility easements, building restrictions
and such other encumbrances or charges against real property as are of a nature
generally existing with respect to properties of a similar character, or (xiii)
Liens in favor of the Trustee securing the obligations of the Company under the
Indenture (collectively, "Permitted Liens").
Limitation on Asset Sales. The Indenture provides that the Company shall
not, and shall not permit any Restricted Subsidiary to, directly or indirectly,
consummate any Asset Sale (as defined below) after the date that the first
series of Debt Securities are authenticated under the Indenture (the "Issue
Date") unless (i) the Company or such Restricted Subsidiary, as the case may be,
receives consideration at the time of such Asset Sale at least equal to the fair
market value of the shares and assets subject to such Asset Sale and (ii) (A) at
least 80% of the consideration paid to the Company or such Restricted Subsidiary
in connection with such Asset Sale is in the form of cash, cash equivalents, or
the assumption by the purchaser of liabilities of the Company (other than
liabilities of the Company that are by their terms subordinate to the Debt
Securities) or any Restricted Subsidiary as a result of which the Company and
the remaining Restricted Subsidiaries are no longer liable or (B) the
consideration paid to the Company or such Restricted Subsidiary is determined in
good faith by the Board of Directors of the Company to be substantially
comparable in type to the assets being sold.
(Art. Six, Sec. 607)
"Asset Sale" is defined under the Indenture as 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 Restricted Subsidiary in any single transaction or series of
transactions of (a) shares of capital stock or other ownership interest of
another Person (including capital stock of Unrestricted Subsidiaries) or (b) any
other property of the Company or any Restricted Subsidiary; provided, however,
that the term "Asset Sale" will not include (i) the sale or transfer of
Temporary Cash Investments (defined to include certain U.S. Government
Obligations (as defined below), time deposit accounts, certificates of deposit,
money market deposits, repurchase obligations, commercial paper and money market
or mutual funds), 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) any asset
disposition permitted pursuant to the provisions discussed below under "Merger,
Consolidation and Sales of Assets" 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; (v) a disposition in the form of a Restricted Payment
permitted to be made pursuant to the provisions discussed above under
"Limitation on Restricted Payments;" or (vi) a disposition with a fair market
value and a sale price of less than $5 million.
The net available cash proceeds (or any portion thereof) from Asset Sales
may be applied by the Company or a Restricted Subsidiary, to the extent the
Company or such Restricted Subsidiary elects, (A) to prepay, repay or purchase
Indebtedness of the Company under the Credit Facility or other Indebtedness
which is not subordinate to the Debt Securities or Indebtedness of a Restricted
Subsidiary (in each case excluding Indebtedness owed to the Company or an
affiliate of the Company) or (B) to reinvest in additional assets which are used
in related businesses. (Art. Six, Sec. 607)
Any net available cash proceeds from an Asset Sale not applied in
accordance with the preceding paragraph within one year from the date of such
Asset Sale or the receipt of such proceeds shall constitute "Excess Proceeds."
When the aggregate amount of Excess Proceeds exceeds $25 million (taking into
account income earned on such Excess Proceeds), the Company will be required to
make an offer to purchase (the "Prepayment Offer") the Debt Securities of each
series on a pro rata basis according to principal amount, at a purchase price
equal to 100% of the principal amount thereof plus accrued and unpaid interest
thereon (if any) to the date of purchase in accordance with the procedures
(including prorating in the event of oversubscription) set forth in the
Indenture. If the aggregate principal amount of the Debt Securities surrendered
for purchase by Holders thereof exceeds the amount of Excess Proceeds, then the
Trustee shall select the Debt Securities of each series to be purchased pro rata
according to principal amount or by lot with such adjustments as
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may be deemed appropriate by the Company so that only Debt Securities in
denominations of $1,000, or integral multiples thereof, shall be purchased. To
the extent that any portion of the amount of net available cash proceeds from
Asset Sales remains after compliance with the preceding sentence and provided
that all Holders of Debt Securities of each series have been given the
opportunity to tender their Debt Securities for purchase as described in the
following paragraph in accordance with the Indenture, the Company or such
Restricted Subsidiary may use such remaining amounts for general corporate
purposes and the amount of Excess Proceeds will be reset to zero.
Within five business days after the Excess Proceeds exceeds $25 million,
the Company shall send a written notice, by first-class mail, to the Holders of
the Debt Securities of each series (the "Prepayment Offer Notice"), accompanied
by such information regarding the Company as the Company in good faith believes
will enable such Holders of the Debt Securities to make an informed decision
with respect to the Prepayment Offer. The Prepayment Offer Notice will state,
among other things, (a) that the Company is offering to purchase Debt Securities
pursuant to the provisions of the Indenture described herein under "Limitation
on Asset Sales;" (b) that any Debt Security (or any portion thereof) accepted
for payment (and duly paid on the Purchase Date (as defined below)) pursuant to
the Prepayment Offer shall cease to accrue interest after the Purchase Date; (c)
the purchase price and purchase date, which shall be, subject to any contrary
requirements of applicable law, no less than 30 days nor more than 60 days from
the date the Prepayment Offer Notice is mailed (the "Purchase Date"); (d) the
aggregate principal amount of Debt Securities (or portions thereof) to be
purchased; and (e) a description of the procedures which Holders of Debt
Securities must follow in order to tender their Debt Securities (or portions
thereof) and the procedures that Holders of Debt Securities must follow in order
to withdraw an election to tender their Debt Securities (or portions thereof)
for payment. (Art. Six, Sec. 607)
The Company will comply, to the extent then applicable and required by
law, with the requirements of Rule 14e-1 under the Exchange Act and any other
securities laws or regulations thereunder in connection with the purchase of
Debt Securities as described above. To the extent that the provisions of any
securities laws or regulations conflict with the provisions relating to the
Prepayment Offer, the Company will comply with the applicable securities laws
and regulations and will not be deemed to have breached its obligations
described above by virtue thereof. (Art. Ten, Sec. 1002)
Limitation on Restrictions on Distributions from Restricted
Subsidiaries. The Indenture provides that the Company shall not, and shall not
permit any Restricted Subsidiary to, directly or indirectly, create or otherwise
cause or suffer to exist or become effective, or enter into any agreement with
any Person that would cause to become effective, any consensual encumbrance or
restriction (other than pursuant to applicable law or regulation) on the ability
of any Restricted Subsidiary to (a) pay dividends, in cash or otherwise, or make
any other distributions on or in respect of its capital stock, or pay any
Indebtedness or other obligation owed to the Company or any other Restricted
Subsidiary; (b) make any loans or advances to the Company or any other
Restricted Subsidiary or (c) transfer any of its property or assets to the
Company or any other Restricted Subsidiary. Such limitation will not apply (1)
with respect to clauses (a), (b) and (c), to encumbrances and restrictions (i)
in existence under or by reason of any agreements in effect on March 7, 1996;
(ii) existing at the time such Restricted Subsidiary became a Restricted
Subsidiary if such encumbrance or restriction was not created in connection with
or in anticipation of the transaction or series of related transactions pursuant
to which such Restricted Subsidiary became a Restricted Subsidiary or was
acquired by the Company or (iii) which result from the renewal, refinancing,
extension or amendment of an agreement referred to in the immediately preceding
clauses (1) (i) and (ii) above and in clauses (2) (i) and (ii) below; provided,
such encumbrance or restriction is no more restrictive to the Company or such
Restricted Subsidiary and is not materially less favorable to the Holders of
Debt Securities than those under or pursuant to the agreement evidencing the
Indebtedness so extended, renewed, refinanced or replaced; and (2) with respect
to clause (c) only, to (i) any encumbrance or restriction relating to
Indebtedness that is secured and is permitted to be incurred pursuant to the
provisions discussed above under "Limitation on Indebtedness" and "Limitation on
Liens" that limit the right of the debtor to dispose of the assets or property
securing such debt; (ii) any encumbrance or restriction in connection with an
acquisition of property, so long as such encumbrance or restriction relates
solely to the property so acquired and was not created in connection with or in
anticipation of such acquisition; (iii) customary provisions restricting
subletting or assignment of leases and customary provisions in other agreements
that restrict assignment of such agreements or rights thereunder or (iv)
customary restrictions contained in asset sale agreements limiting the transfer
of such assets pending the closing of such sale. (Art. Six, Sec. 604)
Limitation on Transactions with Affiliates. The Indenture provides that
the Company shall not, and shall not permit any Restricted Subsidiary to
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<PAGE>
directly or indirectly, conduct any business or enter into or suffer to
exist any transaction or series of transactions (including the purchase, sale,
transfer, lease or exchange of any property or the rendering of any service)
with, or for the benefit of, any affiliate of the Company (an "Affiliate
Transaction") unless (a) the terms of such Affiliate Transaction are (i) with
respect to an Affiliate Transaction involving aggregate payments or value in
excess of $250,000, set forth in writing; (ii) in the best interest of the
Company or such Restricted Subsidiary, as the case may be; and (iii) no less
favorable to the Company or such Restricted Subsidiary, as the case may be, than
those that could be obtained in a comparable arm's-length transaction with a
person that is not an affiliate of the Company or such Restricted Subsidiary and
(b) with respect to an Affiliate Transaction involving aggregate payments or
value in excess of $15 million, the Board of Directors of the Company (including
a majority of the disinterested members) approves such Affiliate Transaction
and, in its good faith judgment, believes that such Affiliate Transaction
complies with clauses (a)(ii) and (iii) of this paragraph. (Art. Six, Sec. 608)
Notwithstanding the foregoing limitation, the Company may enter into or
suffer to exist the following: (i) any transaction pursuant to any contract in
existence on March 7, 1996, including renewals, extensions and replacements
thereof on terms no less favorable to the Company and such Restricted
Subsidiary; (ii) any transaction or series of transactions between the Company
and one or more Restricted Subsidiaries or between two or more Restricted
Subsidiaries (provided that no more than 5% of the equity interest in any of
such Restricted Subsidiaries is owned by an affiliate of the Company (other than
a Restricted Subsidiary); (iii) any Restricted Payment permitted to be made
pursuant to the provisions discussed above under "Limitation on Restricted
Payments;" (iv) the payment of compensation (including amounts paid pursuant to
employee benefit plans) for the personal services of officers, directors and
employees of the Company or any Restricted Subsidiary, so long as the Board of
Directors of the Company in good faith shall have approved the terms thereof and
deemed the services theretofore or thereinafter to be performed for such
compensation or fees to be fair consideration therefor; and (v) loans and
advances to employees made in the ordinary course of business and consistent
with past practices of the Company or such Restricted Subsidiary, as the case
may be, provided, that such loans and advances do not exceed $15 million at any
one time outstanding. (Art. Six, Sec. 608)
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 immediately after giving effect
to such designation on a pro forma basis (i) the Leverage Ratio does not exceed
6.5; (ii) there exist no Liens (other than Permitted Liens) on the property of
the Company or any Restricted Subsidiaries; (iii) the Company and each
Restricted Subsidiary are in compliance with the provisions discussed above
under "Limitation on Restrictions of Distributions from Restricted
Subsidiaries;" (iv) in the case of the designation of a Restricted Subsidiary as
an Unrestricted Subsidiary, the fair market value of the Restricted Subsidiary
at the time of such designation would be permitted as an Investment pursuant to
the provisions discussed above under "Limitation on Restriction Payments;" and
(v) an officers' certificate with respect to such designation is delivered to
the Trustee within 75 days after the end of the fiscal quarter in which such
designation is made (or, in the case of a designation made during the last
fiscal quarter of the Company's fiscal year, within 120 days after the end of
such fiscal year), which officers' certificate shall state the effective date of
such designation. (Art. Six, Sec. 609)
A "Restricted Subsidiary" is defined under the Indenture as (i) any
subsidiary of the Company existing on and after the Issue Date unless such
subsidiary shall have been designated an Unrestricted Subsidiary as permitted
under the Indenture and (ii) an Unrestricted Subsidiary which is redesignated as
a Restricted Subsidiary as permitted under the Indenture. An "Unrestricted
Subsidiary" is defined as (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 under
the Indenture and not thereafter designated as a Restricted Subsidiary.
Merger, Consolidation and Sale of Assets
The Indenture provides that the Company shall not merge or consolidate
with, or into, any other entity (other than a merger of a wholly-owned
subsidiary of the Company into the Company) or sell, transfer, assign, lease,
convey or otherwise dispose of all or substantially all of its property or
assets in any one transaction or series of transactions unless (a) the entity
formed by or surviving any such consolidation or merger (if the Company is not
the surviving entity) or the
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<PAGE>
Person to which such sale, transfer, assignment, lease or conveyance is made
(the "Surviving Entity") shall be a corporation organized and existing under the
laws of the United States or a State thereof or the District of Columbia and
such corporation expressly assumes, by supplemental indenture in form
satisfactory to the Trustee, executed and delivered to the Trustee by such
corporation, the due and punctual payment of the principal of, premium, if any,
and interest on all the Debt Securities according to their tenor, and the due
and punctual performance and observance of all the covenants and conditions of
the Indenture to be performed by the Company; (b) in the case of a sale,
transfer, assignment, lease, conveyance or other disposition of all or
substantially all of the Company's property or assets, such property or assets
shall have been transferred as an entirety or virtually as an entirety to one
Person; (c) 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; and (d) immediately after giving effect to such transaction or
series of transactions on a pro forma basis (including, without limitation, any
Indebtedness incurred or anticipated to be incurred in connection with such
transaction or series of transactions), the Company or the Surviving Entity, as
the case may be, would be able to incur at least $1.00 of additional
Indebtedness under clause (a) of the first paragraph of "Certain Covenants --
Limitation on Indebtedness" above.
(Art. Eleven, Sec. 1101)
In connection with any consolidation merger or transfer, the Company
shall deliver or cause to be delivered to the Trustee, in form and substance
reasonably satisfactory to the Trustee, an officers' certificate and an opinion
of counsel, each stating that such consolidation merger, or transfer and the
supplemental indenture in respect thereto comply with the Indenture and that all
conditions precedent therein provided for relating to such transaction or
transactions have been complied with. (Art. Eleven, Sec. 1101)
Modification of Indenture
Without the consent of any Holders of Debt Securities, the Company and
the Trustee may enter into one or more supplemental indentures for any of the
following purposes:
(a) to evidence the succession of another person to the Company
and the assumption by any such successor of the covenants of the
Company in the Indenture and the Debt Securities pursuant to a
consolidation, merger or conveyance of substantially all of the
Company's assets as described above under "Merger, Consolidation and
Sale of Assets;" or
(b) to add to the covenants of the Company for the benefit of the
Holders of all or any series of outstanding Debt Securities or to
surrender any right or power conferred upon the Company by the
Indenture; or
(c) to add any additional Events of Default with respect to all
or any series of outstanding Debt Securities; or
(d) to change or eliminate any provision of the Indenture or to
add any new provision to the Indenture; provided that if such change,
elimination or addition will adversely affect the interest of the
Holders of Debt Securities of any series in any material respect such
change, elimination or addition will become effective with respect to
such series only when there is no Debt Security of such series
remaining outstanding under the Indenture; or
(e) to provide collateral security for all series of Debt
Securities; or
(f) to establish the form or terms of Debt Securities of any
series as permitted by the Indenture; or
(g) to evidence and provide for the acceptance of the appointment
of a successor Trustee under the Indenture with respect to the Debt
Securities of one or more series and to add or change any of the
provisions of the Indenture as shall be necessary to provide for or to
facilitate the administration of the trusts under the Indenture by more
than one trustee; or
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<PAGE>
(h) to provide for the procedures required to permit the
utilization of a non-certificated system of registration for any series
of Debt Securities; or
(i) to change any place where (1) the principal of and premium,
if any, and interest, if any, on Debt Securities of any series, or any
tranche thereof, shall be payable, (2) any Debt Securities of any
series, or any tranche thereof, may be surrendered for registration of
transfer, (3) Debt Securities of any series, or any tranche thereof,
may be surrendered for exchange and (4) notices and demands to or upon
the Company in respect of the Debt Securities of any series, or any
tranche thereof, and the Indenture may be served, subject to certain
exceptions; or
(j) to cure any ambiguity, defect or inconsistency or to make any
other provisions with respect to matters and questions arising under
the Indenture, provided such provisions shall not adversely affect the
interests of the Holders of Debt Securities of any series in any
material respect. (Art. Twelve, Sec. 1201)
Defeasance
The Company at any time may terminate all of its obligations under the
Debt Securities of any series and the Indenture with respect to the Debt
Securities of such series ("legal defeasance"), except for certain
obligations, including those respecting the defeasance trust and obligations
to register the transfer or exchange of the Debt Securities of such series, to
replace mutilated, destroyed, lost or stolen Debt Securities of such series
and to maintain a registrar and paying agent in respect of the Debt Securities
of such series by taking the action described below. By taking such action,
the Company at any time may terminate its obligations under the covenants
described above under "Certain Covenants," the provisions discussed above in
clauses (c), (e), (f) and (g) (in the case of such clause (g), with respect to
Restricted Subsidiaries only) under "Events of Default" and the limitations
discussed above in clause (d) under "Merger, Consolidation and Sale of Assets"
("covenant defeasance").
The Company may exercise its legal defeasance option with respect to the
Debt Securities of any series notwithstanding its prior exercise of its
covenant defeasance option with respect to the Debt Securities of such series.
If the Company exercises its legal defeasance option with respect to the Debt
Securities of any series, payment of the Debt Securities of such series may
not be accelerated because of the occurrence of an Event of Default with
respect to such Debt Securities. If the Company exercises its covenant
defeasance option with respect to the Debt Securities of any series, payment
of the Debt Securities of such series may not be accelerated because of the
occurrence of an Event of Default specified in clauses (c), (e), (f) or (g)
(in the case of such clause (g), with respect to Restricted Subsidiaries only)
under "Events of Default" above or because of the failure of the Company to
comply with clause (d) under "Merger, Consolidation and Sale of Assets" above.
In order to exercise either defeasance option with respect to the Debt
Securities of any series, the Company must irrevocably deposit in trust with
the Trustee money or U.S. Obligations (as defined below) sufficient for the
payment of principal and interest on the Debt Securities of such series to
maturity and must comply with certain other conditions, including the delivery
to the Trustee of an opinion of counsel to the effect that Holders of the Debt
Securities of such series will not recognize income, gain or loss for Federal
income tax purposes as a result of such deposit and defeasance and will be
subject to Federal income tax on the same amount and in the same manner and at
the same times as would have been the case if such deposit and defeasance had
not occurred (and, in the case of legal defeasance only, such opinion of
counsel must be based on a ruling of the Internal Revenue Service or other
change in applicable Federal income tax law). (Art. Seven, Sec. 701) "U.S.
Government Obligations" is defined as direct obligations (or certificates
representing an ownership interest in such obligations) of the United States
(including any agency or instrumentality thereof) for the payment of which the
full faith and credit of the United States is pledged and which are not
callable or redeemable at the issuer's option.
Regarding the Trustee
The Company engages in banking transactions in the ordinary course of
business with the Trustee and the Trustee currently serves as trustee under
the 1996 Indenture.
17
<PAGE>
DESCRIPTION OF WARRANTS
The following statements with respect to the Warrants are summaries of,
and subject to, the detailed provisions of a Warrant Agreement (the "Warrant
Agreement") to be entered into by the Company and a warrant agent to be
selected at the time of issue (the "Warrant Agent"), a form of which is filed
as an exhibit to the Registration Statement of which this Prospectus is a
part. Terms used under this heading or in any Prospectus Supplement relating
to the Offered Warrants which are defined under this heading are so defined
solely with reference to the Offered Warrants.
General
The Warrants, evidenced by Warrant certificates (the "Warrant
Certificates"), may be issued under the Warrant Agreement independently or
together with any Debt Securities offered by any Prospectus Supplement and may
be attached to or separate from such Debt Securities. If Warrants are offered,
the applicable Prospectus Supplement will describe the terms of such Offered
Warrants, including the following: (i) the offering price, if any; (ii) the
designation, aggregate principal amount and terms of the Debt Securities
purchasable upon exercise of such Offered Warrants; (iii) if applicable, the
designation and terms of the Debt Securities with which such Offered Warrants
are issued and the number of Offered Warrants issued with each such Debt
Security; (iv) if applicable, the date on and after which such Offered
Warrants and the related Debt Securities will be separately transferable; (v)
the principal amount of Debt Securities purchasable upon exercise of one
Offered Warrant and the price at which such principal amount of Debt
Securities may be purchased upon such exercise; (vi) the date on which the
right to exercise such Offered Warrants shall commence and the date on which
such right shall expire; (vii) Federal income tax consequences, if any; (viii)
whether such Offered Warrants represented by the Warrant Certificates will be
issued in registered or bearer form; and (ix) any other terms of such Offered
Warrants not inconsistent with the provisions of the Warrant Agreement.
Warrant Certificates may be exchanged for new Warrant Certificates of
different denominations and may (if in registered form) be presented for
registration of transfer at the corporate trust office of the Warrant Agent or
any Co- Warrant Agent, which will be listed in the applicable Prospectus
Supplement, or at such other office as may be set forth therein. Warrant
holders do not have any of the rights of Holders of Debt Securities (except to
the extent that the consent of Warrant holders may be required for certain
modifications of the terms of the Indenture and the series of Debt Securities
issuable upon exercise of the Warrants) and are not entitled to payments of
principal of and interest, if any, on such Debt Securities.
Exercise of Warrants
Warrants may be exercised by surrendering the Warrant Certificate at the
corporate trust office of the Warrant Agent or at the corporate trust office
of the Co-Warrant Agent, if any, with the form of election to purchase on the
reverse side of the Warrant Certificate properly completed and executed, and
by payment in full of the exercise price, as set forth in the applicable
Prospectus Supplement. Upon the exercise of Warrants, the Warrant Agent or
Co-Warrant Agent, if any, will, as soon as practicable, deliver the Debt
Securities in authorized denominations in accordance with the instructions of
the exercising Warrant holder and at the sole cost and risk of such holder. If
less than all of the Warrants evidenced by the Warrant Certificate are
exercised, a new Warrant Certificate will be issued for the remaining amount
of Warrants.
LEGAL OPINIONS
The legality of the Securities offered hereby will be passed upon for the
Company by Kevin C. Gallagher, Esq., Senior Vice President, General Counsel
and Secretary of the Company. At December 31, 1996, Mr. Gallagher was the
beneficial owner of 10,226 shares of Common Stock of the Company.
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<PAGE>
EXPERTS
The consolidated financial statements, schedule and Selected
Proportionate Operating Results of the Company included in the Company's
Annual Report on Form 10-K for the fiscal year ended December 31, 1995 (the
"1995 Form 10-K") have been audited by Ernst & Young LLP, independent
auditors, as set forth in their report thereon included therein and
incorporated herein by reference which, as to GTE Mobilnet of South Texas
Limited Partnership and New York SMSA Limited Partnership, is based in part on
the reports of other auditors. Such consolidated financial statements,
schedule and Selected Proportionate Operating Results are, and audited
financial statements, schedule and Selected Proportionate Operating Results to
be included in subsequently filed documents will be, incorporated herein by
reference in reliance upon the report of Ernst & Young LLP pertaining to such
financial statements, schedule or Selected Proportionate Operating Results (to
the extent covered by consents of such firm filed with the Commission) given
upon the authority of such firms as experts in accounting and auditing.
The financial statements of Kansas City SMSA Limited Partnership at
December 31, 1995 and 1994 and for each of the three years in the period ended
December 31, 1995 included in the 1995 Form 10-K have been audited by Ernst &
Young LLP, independent auditors, as set forth in their report thereon included
therein and incorporated herein by reference. Such financial statements are
incorporated herein by reference in reliance upon such report given upon the
authority of such firm as experts in accounting and auditing.
The financial statements of GTE Mobilnet of South Texas Limited
Partnership at December 31, 1995 and 1994 and for each of the three years in
the period ended December 31, 1995 included in the 1995 Form 10-K and the
financial statements of Independent Cellular Network, Inc. and Affiliates at
December 31, 1995 and 1994 and for each of the three years in the period ended
December 31, 1995 included in the Company's Current Report on Form 8-K dated
November 1, 1996 (the "Form 8-K"), have been audited by Arthur Andersen LLP,
independent public accountants, as set forth in their separate reports thereon
included in the 1995 10-K and the Form 8-K, respectively, and incorporated
herein by reference. Such financial statements are incorporated herein by
reference in reliance upon such reports given upon the authority of such firm
as experts in accounting and auditing.
The financial statements of New York SMSA Limited Partnership and Orlando
SMSA Limited Partnership at December 31, 1995 and 1994 and for each of the
three years in the period ended December 31, 1995 included in the 1995 Form
10-K, have been incorporated herein by reference in reliance on the reports of
Coopers & Lybrand L.L.P., independent accountants, given upon the authority of
such firm as experts in accounting and auditing.
PLAN OF DISTRIBUTION
The Company may sell Securities through underwriters or dealers, directly
to one or more purchasers or through agents. The applicable Prospectus
Supplement will set forth the terms of the offering of any Securities,
including the names of any underwriters or agents, the purchase price of such
Securities and the proceeds to the Company from such sale, any underwriters'
discounts and other items constituting underwriters' compensation, any initial
public offering price, any discounts or concessions allowed or reallowed or
paid to dealers and any securities exchanges on which such Securities may be
listed.
If underwriters are used in the sale, Securities will be acquired by the
underwriters for their own account and may be resold, from time to time, in
one or more transactions, including negotiated transactions, at a fixed public
offering price or at varying prices determined at the time of sale. Such
Securities may be offered to the public either through underwriting syndicates
represented by managing underwriters or by underwriters without a syndicate.
Unless otherwise set forth in the applicable Prospectus Supplement, the
obligations of the underwriters to purchase such Securities will be subject to
certain conditions precedent, and the underwriters will be obligated to
purchase all of such Securities, if any of such Securities are purchased. Any
initial offering price and any discounts or concessions allowed or reallowed
or paid to dealers may be changed from time to time. Only underwriters named
in a Prospectus Supplement are deemed to be underwriters in connection with
the Securities offered thereby.
Securities may also be sold directly by the Company or through agents
designated by the Company from time to time. Any agent involved in the offer
or sale of Securities will be named, and any commissions payable by the
Company
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<PAGE>
to such agent will be set forth in the applicable Prospectus Supplement.
Unless otherwise indicated in the applicable Prospectus Supplement, any such
agent will act on a best efforts basis for the period of the appointment.
If so indicated in the applicable Prospectus Supplement, the Company will
authorize agents, underwriters or dealers to solicit offers by certain
specified institutions to purchase Securities at the public offering price set
forth in such Prospectus Supplement pursuant to delayed delivery contracts
providing for payment and delivery on a future date specified in such
Prospectus Supplement. Such contacts will be subject only to those conditions
set forth in the applicable Prospectus Supplement and such Prospectus
Supplement will set forth the commissions payable for solicitation of such
contracts.
Any underwriters, dealers or agents participating in the distribution of
Securities may be deemed to be underwriters and any discounts or commissions
received by them on the sale or resale of Securities may be deemed to be
underwriting discounts and commissions under the Securities Act of 1933, as
amended (the "Securities Act"). Agents and underwriters may be entitled under
agreements entered into with the Company to indemnification by the Company
against certain liabilities, including liabilities under the Securities Act or
to contribution with respect to payments that the agents or underwriters may
be required to make in respect thereof. Agents and underwriters may be
customers of, engage in transactions with, or perform services for, the
Company or its affiliates in the ordinary course of business.
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<PAGE>
No person has been authorized to give any information or to make any
representations other than those contained or incorporated by reference in
this Prospectus or the accompanying Prospectus Supplement and, if given or
made, such information or representations must not be relied upon as having
been authorized by the Company or by any underwriter, agent or dealer. Neither
the delivery of this Prospectus or the accompanying Prospectus Supplement nor
any sale made hereunder or thereunder shall under any circumstances create an
implication that there has been no change in the affairs of the Company since
the date hereof or thereof or that the information contained herein or therein
is correct at any time subsequent to the date hereof or thereof. This
Prospectus and the accompanying Prospectus Supplement do not constitute an
offer or solicitation by anyone in any jurisdiction in which such offer or
solicitation is not authorized or in which the person making such offer or
solicitation is not qualified to do so or to anyone to whom it is unlawful to
make such offer or solicitation.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The fees and expenses payable by the Company in connection with the
issuance and distribution of the Securities registered hereunder are as
follows:
<TABLE>
<CAPTION>
<S> <C>
Securities and Exchange Commission registration fee. . . . . . . . . . . . . . . . . . . . $ 151,516
Accounting fees and expenses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66,000*
Printing fees. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35,000*
Blue sky fees and expenses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12,000*
Trustee's fees and expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10,000*
Legal fees and expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65,000*
Rating Agency fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 250,000*
Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10,484*
Total fees and expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .$ 600,000*
___________
*Estimated.
</TABLE>
Item 15. Indemnification of Directors and Officers.
(a) Section 145 of the Delaware General Corporation Law
("DGCL") gives Delaware corporations broad powers to indemnify their
present and former directors and officers and those of affiliated
corporations against expenses incurred in the defense of any lawsuit to
which they are made parties by reason of being or having been such
directors or officers, subject to specified conditions and exclusions,
gives a director or officer who successfully defends an action the
right to be so indemnified and authorizes the Company to buy directors'
and officers' liability insurance. Such indemnification is not
exclusive of any other rights to which those indemnified may be
entitled under any bylaws, agreements, vote of stockholders or
otherwise.
(b) Article Sixth of the Company's Amended and Restated
Certificate of Incorporation, as amended ("Certificate of
Incorporation"), requires the Company to indemnify officers and
directors to the fullest extent permitted by Delaware law against all
liability and loss suffered and expenses reasonably incurred by such
person in connection with any action, suit or proceeding by reason of
the fact that such person is or was serving as a director or officer of
the Company or as a director, officer, trustee or in any other
comparable position of another enterprise at the Company's request;
provided that the Company shall not be required to indemnify or advance
expenses to such person in connection with an action, suit or
proceedings initiated by such person unless the initiation of such
action, suit or proceeding was authorized in advance by the Company's
Board of Directors. The indemnification provided by Article Sixth of
the Certificate of Incorporation is not exclusive of any other rights
to which those seeking indemnification may be entitled under any
statute, other provision of the Certificate of Incorporation, the
Company's Amended and Restated Bylaws (the "Bylaws"), or any agreement,
vote of stockholders or disinterested directors, policy of insurance or
otherwise, both as to action in their official capacities and as to
action in other capacities while holding their respective offices. In
the event Delaware law is changed to permit broader rights of
indemnification, the Certificate of Incorporation will automatically
authorize the Company to indemnify such persons to the fullest extent
permitted by such law, as so changed, without the need for any further
action by the Company's directors or stockholders.
(c) In accordance with Section 102(b)(7) of the DGCL, the
Certificate of Incorporation provides that directors shall not be
personally liable for monetary damages for breaches of their fiduciary
duty as directors except for (1) breaches of their duty of loyalty to
the Company or its stockholders; (2) acts or omissions not in good
faith or which involve intentional misconduct or knowing violations of
law; (3) under Section 174 of the
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<PAGE>
DGCL (unlawful payment of dividends); or (4) transactions from which a
director derives an improper personal benefit.
(d) Section 10 of the Bylaws requires the Company to indemnify
any person who is a party or is threatened to be made a party to any
action, suit or proceeding by reason of the fact that such person is or
was a director, officer, employee or agent of the Company, or is
serving as a director, officer, employee or agent of another enterprise
at the Company's request; provided that such person acted in good faith
and in a manner such person reasonably believed to be in or not opposed
to the Company's best interests, and with respect to any criminal
action or proceeding, that such person had no reasonable cause to
believe such person's conduct was unlawful. Such Section 10 further
provides that the Company shall not indemnify any person for any
liabilities or expenses incurred by such person in connection with an
action, suit or proceeding by or in the right of the Company in respect
of any claim, issue or matter as to which such person shall have been
adjudged to be liable to the Company, unless and only to the extent
that the court in which the action, suit or proceeding is brought
determines that the person is entitled to indemnity for such expenses.
The indemnification provided by Section 10 of the Bylaws is not
exclusive of any other rights to which those seeking indemnification
may be entitled under any statute, other provision of the Bylaws,
Certificate of Incorporation, or any agreement, vote of stockholders or
disinterested directors, policy of insurance or otherwise, both as to
action in their official capacities and as to action in other
capacities while holding their respective offices.
(e) The Company has entered into indemnification agreements
with each of its directors and officers providing for indemnification
of each such person to the fullest extent allowed by law. The Company
is required by such indemnification agreements to advance litigation
and related expenses to the indemnified persons, subject to their
undertaking to repay such amounts if it is ultimately determined that
they are not entitled to be indemnified by the Company thereunder or
otherwise.
(f) The Company maintains directors' and officers' liability
insurance covering such persons in their official capacities with the
Company and its subsidiaries.
Item 16. Exhibits.
1.1 Form of Underwriting Agreement and/or Distribution Agreement, as
applicable (to be filed under cover of Form 8-K).
2.1 Distribution Agreement dated as of March 7, 1996 by and among Sprint
Corporation, 360(degree) Communications Company (formerly Sprint Cellular
Company) and Centel Corporation.*
2.2 Exchange and Merger Agreement, dated as of May 31, 1996 by and among
Independent Cellular Network Partners, James A. Dwyer, Jr., David
Winstel, CC Industries, Inc., Ohio Cellular RSA, L.P., Ohio RSA
Corporation, Quality Cellular Communications of Ohio, Inc., Cellular
Plus, L.P., C-Plus, Inc., Quality Cellular Plus Communications, Inc.,
Henry Crown and Company (Not Incorporated) and 360(degree) Communications
Company. (Filed as Exhibit 2.2 in the Company's Quarterly Report on Form
10-Q for the quarterly period ended June 30, 1996, File No. 1-14108, and
incorporated herein by reference.)*
2.3 First Amendment to Exchange and Merger Agreement, dated as of
November 1, 1996, by and among Independent Cellular Network Partners,
James A. Dwyer, Jr., David Winstel, CC Industries, Inc., Ohio Cellular
RSA, L.P., Ohio RSA Corporation, Quality Cellular Communications of Ohio,
Inc., Cellular Plus, L.P., C-Plus, Inc., Quality Cellular Plus
Communications, Inc., Henry Crown and Company (Not Incorporated) and
360(degree) Communications Company. (Filed as Exhibit 2.3 to the
Company's Current Report on Form 8-K dated November 1, 1996, File No.
1-14108, and incorporated herein by reference.)*
3.1 Amended and Restated Certificate of Incorporation of 360(degree)
Communications Company, as amended as of March 4, 1996. (Filed as Exhibit
3.1 to the Company's Annual Report on Form 10-K for the fiscal year ended
December 31,
II-2
<PAGE>
1995; File No. 1-14108, and incorporated herein by reference.)*
3.2 Amended and Restated Bylaws of 360(degree) Communications Company.
(Filed as Exhibit 3.2 to the Company's Annual Report on Form 10-K for the
fiscal year ended December 31, 1995, File No. 1-14108, and incorporated
herein by reference.)*
3.3 Certificate of Designation of First Series Junior Participating Preferred
Stock of 360(degree) Communications Company. (Filed as Exhibit 3.3 to
Amendment No. 4 to Registration Statement No. 33-99756 and incorporated
herein by reference.)*
4.1 360(degree) Communications Company's 7 1/8% Senior Note Due 2003 and 7
1/2% Senior Note Due 2006. (Filed as Exhibit 4.1 to the Company's Annual
Report on Form 10-K for the fiscal year ended December 31, 1995, File No.
1-14108, and incorporated herein by reference.)*
4.2 Indenture dated as of March 7, 1996 between 360(degree) Communications
Company and Citibank, N.A., as Trustee. (Filed as Exhibit 4.2 to the
Company's Annual Report on Form 10-K for the fiscal year ended December
31, 1995, File No. 1-14108, and incorporated herein by reference.)*
4.3 Form of 360(degree) Communications Company Common Stock, $0.01 par value,
certificate. (Filed as Exhibit 4.3 to the Company's Annual Report on Form
10-K for the fiscal year ended December 31, 1995, File No. 1-14108, and
incorporated herein by reference.)*
4.4 Rights Agreement dated as of March 5, 1996 between 360(degree)
Communications Company and Chemical Bank. (Filed as Exhibit 10.3 to the
Company's Annual Report on Form 10-K for the fiscal year ended December
31, 1995, File No. 1-14108, and incorporated herein by reference.)*
4.5 Form of 360(degree) Communications Company's Subordinated Non-Negotiable
Promissory Note (included in Exhibit 2.2 to the Company's Quarterly
Report on Form 10-Q for the quarterly period ended June 30, 1996, File
No. 1-14108, and incorporated herein by reference).*
4.6 Form of Indenture between 360(degree)Communications Company and Citibank,
N.A., as Trustee, relating to the Debt Securities.
4.7 Form of Debt Security.
4.8 Form of Warrant Agreement.
4.9 Form of Warrant (contained in Exhibit 4.8).
5.1 Opinion of Kevin C. Gallagher, Esq., Senior Vice President, General
Counsel and Secretary.
12 Statement regarding computation of Ratio of Earnings to Fixed Charges.
23.1 Consent of Ernst & Young LLP.
23.2 Consent of Ernst & Young LLP, regarding the Kansas City SMSA Limited
Partnership.
23.3 Consent of Arthur Andersen LLP, regarding GTE Mobilnet of South Texas
Limited Partnership.
23.4 Consent of Arthur Andersen LLP, regarding Independent Cellular Network,
Inc. and Affiliates.
23.5 Consent of Coopers & Lybrand L.L.P., regarding New York SMSA Limited
Partnership.
II-3
<PAGE>
23.6 Consent of Coopers & Lybrand L.L.P., regarding Orlando SMSA Limited
Partnership.
23.7 Consent of Kevin C. Gallagher, Esq. (contained in Exhibit 5.1).
24.1 Power of Attorney.
25.1 Statement of Eligibility and Qualification of Citibank, N.A. on Form T-1
relating to the Debt Securities.
- ---------------
*Previously filed.
Item 17. Undertakings.
The undersigned Registrant hereby undertakes:
(1) To file during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement;
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933, as amended (the "Act");
(ii) To reflect in the prospectus any facts or events arising
after the effective date of this Registration Statement (or the most
recent post-effective amendment thereof) which, individually or in
the aggregate, represent a fundamental change in the information set
forth in this Registration Statement;
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in this Registration
Statement or any material change to such information in this
Registration Statement;
provided, however, that the undertakings set forth in paragraphs (1) (i) and
(ii) above do not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic reports
filed by the Registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), that are
incorporated by reference in this Registration Statement.
(2) That, for the purpose of determining any liability under the Act,
each such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered herein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
(4) That, for the purposes of determining any liability under the Act,
the information omitted from the form of prospectus filed as part of this
Registration Statement in reliance upon Rule 430A and contained in a form of
prospectus filed by the Registrant pursuant to Rule 424(b)(1) or (4) or 497(h)
under the Act shall be deemed to be part of this Registration Statement as of
the time it was declared effective.
(5) That, for the purpose of determining any liability under the Act,
each post-effective amendment that contains a form of prospectus shall be deemed
to be a new registration statement relating to the securities offered therein
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
The undersigned Registrant hereby undertakes that, for the purposes of
determining any liability under the Act, each filing of the Registrant's annual
report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and,
where applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Exchange Act) that
II-4
<PAGE>
is incorporated by reference in this Registration Statement shall be deemed to
be a new registration statement relating to the securities offered therein and
the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Act may be
permitted to directors, officers and controlling persons of the Registrant
pursuant to the provisions described in Item 15 or otherwise, the Registrant has
been advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than payment by the Registrant of expenses incurred or
paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the act and will be governed by the final adjudication of
such issue.
II-5
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in Chicago, Illinois on the 7th day of February, 1997.
360(degree) COMMUNICATIONS COMPANY
By: /s/ Kevin C. Gallagher
Kevin C. Gallagher
Senior Vice President, General Counsel
and Secretary
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated:
Signature Title Date
*
President and Chief Executive February 7, 1997
Dennis E. Foster Officer and Director
(Principal Executive Officer)
*
Executive Vice President and February 7, 1997
Michael J. Small Chief Financial Officer
(Principal Financial Officer)
*
Senior Vice President - Finance February 7, 1997
Gary L. Burge (Principal Accounting Officer)
*
Chairman of the Board February 7, 1997
Frank E. Reed of Directors
*
Director February 7, 1997
Lester Crown
*
Director February 7, 1997
Michael Hooker
*
Director February 7, 1997
Robert E.R. Huntley
*
Director February 7, 1997
Valerie B. Jarrett
*
Director February 7, 1997
Alice M. Peterson
*
Director February 7, 1997
Charles H. Price, II
*By:/s/ Kevin C. Gallagher
Kevin C. Gallagher
As Attorney-in-Fact
<PAGE>
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360(degree) COMMUNICATIONS COMPANY
TO
CITIBANK, N.A., Trustee
- --------------------------------------------------------------------------------
Indenture
- --------------------------------------------------------------------------------
Dated as of [ ], 1997
Debt Securities
- --------------------------------------------------------------------------------
<PAGE>
<TABLE>
<CAPTION>
TABLE OF CONTENTS
<S> <C>
PARTIES...........................................................................................................1
RECITAL OF THE COMPANY............................................................................................1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF
GENERAL APPLICATION
Section 101. DEFINITIONS...................................................................1
Act...........................................................................1
Additional Assets.............................................................1
Affiliate.....................................................................2
Affiliate Transaction.........................................................2
Asset Sale....................................................................2
Attributable Indebtedness.....................................................2
Authenticating Agent..........................................................3
Board of Directors............................................................3
Board Resolution..............................................................3
Business Day..................................................................3
Capital Expenditure Indebtedness..............................................3
Capital Lease Obligations.....................................................3
Capital Stock.................................................................3
Capital Stock Sale Proceeds...................................................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...............................................................5
Consolidated Interest Expense.................................................5
Consolidated Net Income.......................................................5
Corporate Trust Office........................................................6
Corporation...................................................................6
covenant defeasance option....................................................6
Cumulative EBITDA.............................................................6
Cumulative Interest Expense...................................................6
Currency Agreement............................................................6
Credit Facility...............................................................6
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Default.......................................................................6
Defaulted Interest............................................................7
Depository................................................................... 7
Discount Security.............................................................7
Dollar........................................................................7
EBITDA........................................................................7
Event of Default..............................................................7
Excess Proceeds...............................................................7
Exchange Act..................................................................7
Fair Market Value.............................................................7
GAAP..........................................................................8
Guarantee.....................................................................8
Holder........................................................................8
Incur.........................................................................8
Indebtedness..................................................................8
Indenture.....................................................................9
Interest......................................................................9
Interest Payment Date.........................................................9
Interest Rate Agreement.......................................................9
Investment....................................................................9
Investment Grade Rating.......................................................9
Issue Date....................................................................9
legal defeasance option......................................................10
Leverage Ratio ..............................................................10
Lien.........................................................................10
LTM Pro Forma EBITDA.........................................................10
Maturity.....................................................................10
Net Available Cash...........................................................10
Net Cash Proceeds............................................................10
Net POPs.....................................................................11
1996 Indenture...............................................................11
Officer......................................................................11
Officers' Certificate........................................................11
Opinion of Counsel...........................................................11
Outstanding..................................................................11
Paying Agent.................................................................12
Periodic Offering............................................................12
Permitted Indebtedness.......................................................12
Permitted Investment.........................................................13
Permitted Liens..............................................................13
Permitted Refinancing Indebtedness...........................................14
Person.......................................................................14
Place of Payment.............................................................15
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Predecessor Security.........................................................15
Preferred Stock..............................................................15
Prepayment Offer.............................................................15
Prepayment Offer Notice......................................................15
Pricing Committee............................................................15
Pro Forma EBITDA.............................................................15
Property.....................................................................15
Purchase Date................................................................16
Rating Agencies..............................................................16
Rating Date..................................................................16
Rating Decline...............................................................16
Redeemable Dividend..........................................................16
Redeemable Stock.............................................................16
Redemption Date..............................................................16
Redemption Price.............................................................16
Regular Record Date..........................................................16
Related Business.............................................................17
Required Currency............................................................17
Responsible Officer..........................................................17
Restricted Payment...........................................................17
Restricted Subsidiary........................................................17
Sale and Leaseback Transaction...............................................17
Securities...................................................................18
Securities Act...............................................................18
Security Register............................................................18
Senior Indebtedness..........................................................18
Senior Notes.................................................................18
Special Record Date..........................................................18
Stated Maturity..............................................................18
Subordinated Notes...........................................................18
Subsidiary...................................................................18
Temporary Cash Investments...................................................18
Terminating Covenants........................................................19
Tranche......................................................................19
Trustee......................................................................19
Trust Indenture Act..........................................................19
U.S. Government Obligations..................................................19
United States................................................................19
Unrestricted Subsidiary......................................................19
Voting Stock.................................................................20
Wholly Owned Subsidiary......................................................20
Section 102. Compliance Certificates and Opinions..................................................20
Section 103. Form of Documents Delivered to Trustee.......................................20
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Section 104. Acts of Holders..............................................................21
Section 105. Notices, Etc. to Trustee and Company..................................................23
Section 106. Notice to Holders of Securities; Waiver...............................................23
Section 107. Conflict with Trust Indenture Act.....................................................23
Section 108. Effect of Headings and Table of Contents..............................................24
Section 109. Successors and Assigns................................................................24
Section 110. Separability Clause...................................................................24
Section 111. Benefits of Indenture.................................................................24
Section 112. Governing Law.........................................................................24
Section 113. Legal Holidays........................................................................24
ARTICLE TWO
SECURITY FORMS
Section 201. Forms Generally.......................................................................25
Section 202. Form of Trustees' Certificate of Authentication.......................................25
ARTICLE THREE
THE SECURITIES
Section 301. Amount Unlimited; Issuable in Series.........................................26
Section 302. Denominations................................................................29
Section 303. Execution, Authentication, Delivery and Dating...............................29
Section 304. Temporary Securities.........................................................32
Section 305. Registration, Registration of Transfer and Exchange..........................33
Section 306. Mutilated, Destroyed, Lost and Stolen Securities.............................34
Section 307. Payment of Interest; Interest Rights Preserved...............................35
Section 308. Persons Deemed Owners........................................................36
Section 309. Cancellation.................................................................36
Section 310. Computation of Interest......................................................36
Section 311. Payment to Be in Proper Currency.............................................36
Section 312. CUSIP Numbers................................................................37
ARTICLE FOUR
REDEMPTION OF SECURITIES
Section 401. Applicability of Article.....................................................37
Section 402. Election to Redeem; Notice to Trustee........................................37
Section 403. Selection of Securities to Be Redeemed.......................................38
Section 404. Notice of Redemption.........................................................38
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<PAGE>
Section 405. Securities Payable On Redemption Date........................................39
Section 406. Securities Redeemed in Part..................................................40
ARTICLE FIVE
SINKING FUNDS
Section 501. Applicability of Article.....................................................40
Section 502. Satisfaction of Sinking Fund Payments with Securities........................40
Section 503. Redemption of Securities for Sinking Fund....................................41
ARTICLE SIX
COVENANTS
Section 601. Certain Covenants Terminated.................................................41
Section 602. Payment of Principal, Premium and Interest...................................42
Section 603. Limitation on Indebtedness...................................................42
Section 604. Limitation on Restrictions on Distributions from
Restricted Subsidiaries...............................................................43
Section 605. Limitation on Liens..........................................................44
Section 606. Limitation on Restricted Payments............................................44
Section 607. Limitation on Asset Sales....................................................45
Section 608. Limitation on Transactions with Affiliates...................................47
Section 609. Designation of Restricted and Unrestricted Subsidiaries......................48
Section 610. Maintenance of Office or Agency..............................................48
Section 611. Money for Securities Payments to Be Held in Trust............................49
Section 612. Statement as to Compliance; Notice of Default................................50
Section 613. Waiver of Certain Covenants..................................................50
ARTICLE SEVEN
SATISFACTION AND DISCHARGE
Section 701. Satisfaction and Discharge of Securities; Defeasance.........................51
Section 702. Conditions to Defeasance.....................................................52
Section 703. Application of Trust Money...................................................53
Section 704. Repayment to Company.........................................................53
Section 705. Indemnity for Government Obligations.........................................53
Section 706. Reinstatement................................................................53
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<PAGE>
ARTICLE EIGHT
EVENTS OF DEFAULT; REMEDIES
Section 801. Events of Default............................................................54
Section 802. Acceleration of Maturity; Rescission and Annulment...........................56
Section 803. Collection of Indebtedness and Suits for Enforcement
by Trustee............................................................................57
Section 804. Trustee May File Proofs of Claim.............................................57
Section 805. Trustee May Enforce Claims Without Possession of
Securities............................................................................58
Section 806. Application of Money Collected...............................................58
Section 807. Limitation on Suits..........................................................59
Section 808. Unconditional Right of Holders to Receive Principal,
Premium and Interest..................................................................60
Section 809. Restoration of Rights and Remedies...........................................60
Section 810. Rights and Remedies Cumulative...............................................61
Section 811. Delay or Omission Not Waiver.................................................61
Section 812. Control by Holders Of Securities.............................................61
Section 813. Waiver of Past Defaults......................................................62
Section 814. Undertaking for Costs........................................................62
Section 815. Waiver of Stay or Extension Laws.............................................62
ARTICLE NINE
THE TRUSTEE
Section 901. Certain Duties and Responsibilities..........................................63
Section 902. Notice of Defaults.......................................................... 64
Section 903. Certain Rights of Trustee....................................................64
Section 904. Not Responsible for Recitals or Issuance of Securities.......................66
Section 905. May Hold Securities..........................................................66
Section 906. Money Held in Trust..........................................................66
Section 907. Compensation and Reimbursement...............................................66
Section 908. Disqualification; Conflicting Interests......................................67
Section 909. Corporate Trustee Required; Eligibility......................................68
Section 910. Resignation and Removal; Appointment of Successor............................68
Section 911. Acceptance of Appointment by Successor.......................................69
Section 912. Merger, Conversion, Consolidation or Succession
to Business...........................................................................71
Section 913. Preferential Collection of Claims Against Company............................71
Section 914. Appointment of Authenticating Agent..........................................75
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<PAGE>
Section 915. Trustee's Application for Instructions from the Company......................77
ARTICLE TEN
RIGHT TO REQUIRE REPURCHASE
Section 1001. Repurchase of Securities at Option of the
Holder upon Change of Control.........................................................77
Section 1002 Covenant to Comply with Securities Laws
upon Purchase of Securities...........................................................78
ARTICLE ELEVEN
MERGER, CONSOLIDATION, AND SALE OF ASSETS
Section 1101. When Company May Merger or Transfer Assets...................................79
Section 1102. Successor Corporation Substituted............................................80
ARTICLE TWELVE
SUPPLEMENTAL INDENTURES
Section 1201. Supplemental Indentures Without Consent of Holders..........................80
Section 1202. Supplemental Indentures With Consent of Holders..............................82
Section 1203. Execution of Supplemental Indentures.........................................83
Section 1204. Effect of Supplemental Indentures............................................83
Section 1205. Conformity With Trust Indenture Act..........................................84
Section 1206. Reference in Securities to Supplemental Indentures...........................84
Section 1207. Modification Without Supplemental Indenture..................................84
ARTICLE THIRTEEN
MEETINGS OF HOLDERS;
ACTION WITHOUT MEETING
Section 1301. Purposes for Which Meetings May Be Called....................................84
Section 1302. Call, Notice and Place of Meetings...........................................85
Section 1303. Persons Entitled to Vote at Meetings.........................................85
Section 1304. Quorum, Action...............................................................86
Section 1305. Attendance at Meetings; Determination of Voting Rights;
Conduct and Adjournment of Meetings...................................................87
Section 1306. Counting Votes and Recording Action of Meeting...............................87
Section 1307. Action Without Meeting.......................................................88
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ARTICLE FOURTEEN
IMMUNITY OF INCORPORATORS,
STOCKHOLDERS, OFFICERS AND DIRECTORS
Section 1401. Liability Solely Corporate...................................................88
ARTICLE FIFTEEN
HOLDERS' LISTS AND REPORTS
BY TRUSTEE AND COMPANY
Section 1501. Company to Furnish Trustee Names and Addresses
of Holders............................................................................89
Section 1502. Preservation of Information; Communications to Holders.......................89
Section 1503. Reports by Trustee...........................................................90
Section 1504. Reports by Company...........................................................92
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</TABLE>
<PAGE>
INDENTURE, dated as of [ ], 1997, between 360(degree) COMMUNICATIONS
COMPANY, a corporation duly organized and existing under the laws of State of
Delaware (the "Company") and CITIBANK, N.A., a New York banking corporation (the
"Trustee").
RECITAL OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured senior
debt securities, notes or other evidences of indebtedness (the "Securities"), to
be issued in one or more series as in this Indenture provided; and all other
things necessary to make this Indenture a valid agreement of the Company, in
accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of the Securities or of series
thereof, as follows:
ARTICLE ONE
Definitions and Other Provisions of General Application
Section 101. Definitions.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as the
singular;
(b) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein and;
(c) the words "herein", "hereof" and "hereunder" and other
words of similar import refer to this Indenture as a whole and not to
any particular Article, Section or other subdivision.
Certain terms, used principally in Article Nine, are defined in that
Article.
"Act", when used with respect to any Holder of a Security, has the
meaning specified in Section 104.
"Additional Assets" means (i) any Property or assets (other than cash,
cash equivalents or securities) to be owned by the Company or a Restricted
Subsidiary and used in a Related Business, (ii) the costs of improving or
developing any Property or assets owned by the Company or a
- 1 -
<PAGE>
Restricted Subsidiary which are used in a Related Business or (iii) Investments
in any other Person engaged primarily in a Related Business (including the
acquisition from third parties of Capital Stock of such Person) as a result of
which such other Person becomes a Restricted Subsidiary in compliance with
Section 609.
"Affiliate" of any specified Person means (i) any other Person,
directly or indirectly, controlling or controlled by or under direct or indirect
common control with such specified Person or (ii) any other Person who is a
director or officer (a) of such specified Person, (b) of any Subsidiary of such
specified Person or (c) of any Person described in clause (i) above. For the
purposes of this definition, "control" when used with respect to any Person
means the power to direct the management and policies of such Person, directly
or indirectly, whether through the ownership of voting securities, by contract
or otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing. "Affiliate" shall also mean any beneficial owner
of shares representing 10% or more of the total voting power of the Voting Stock
(on a fully diluted basis) of the Company or of rights or warrants to purchase
such Voting Stock (whether or not currently exercisable) and any Person who
would be an Affiliate of any such beneficial owner pursuant to the first
sentence hereof.
"Affiliate Transaction" has the meaning specified in Section 608(a).
"Asset Sale" means, with respect to any Person, any transfer,
conveyance, sale, lease or other disposition (including, without limitation,
dispositions pursuant to any consolidation or merger or a Sale and Leaseback
Transaction) by such Person or any of its Restricted Subsidiaries in any single
transaction or series of transactions of (a) shares of Capital Stock or other
ownership interests of another Person (including Capital Stock of Unrestricted
Subsidiaries) or (b) any other Property of such Person or any of its Restricted
Subsidiaries; provided, however, that the term "Asset Sale" shall not include:
(i) the sale or transfer of Temporary Cash Investments, inventory, accounts
receivable or other Property in the ordinary course of business; (ii) the
liquidation of Property received in settlement of debts owing to the Company or
any Restricted Subsidiary as a result of foreclosure, perfection or enforcement
of any Lien or debt, which debts were owing to the Company or any Restricted
Subsidiary in the ordinary course of business of the Company or such Restricted
Subsidiary; (iii) when used with respect to the Company, any asset disposition
permitted pursuant to Section 1101 which constitutes a disposition of all or
substantially all of the Company's Property or assets; (iv) the sale or transfer
of any Property by the Company or a Restricted Subsidiary to the Company or a
Restricted Subsidiary; (v) a disposition in the form of a Restricted Payment
permitted to be made pursuant to Section 606 or (vi) 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
- 2 -
<PAGE>
extended).
"Authenticating Agent" means any Person or Persons authorized by the
Trustee to act on behalf of the Trustee to authenticate one or more series of
Securities.
"Board of Directors" means either the Board of Directors of the Company
or any duly authorized committee thereof.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"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 Expenditure Indebtedness" means Indebtedness Incurred by any
Person to finance a capital expenditure so long as (i) such capital expenditure
is or should be included as an addition to "Property, Plant and Equipment, net"
or "Property, Plant and Equipment" in accordance with GAAP, and (ii) such
Indebtedness is Incurred within 180 days of the date such capital expenditure is
made.
"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 605, 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.
"Capital Stock Sale Proceeds" means the aggregate Net Cash Proceeds
received by the Company from the issue or sale (other than to a Subsidiary or an
employee stock ownership plan or trust established by the Company or any
Subsidiary) by the Company of any class of its Capital Stock (other than
Redeemable Stock) after March 7, 1996.
"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
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provision to either of the foregoing, including any group acting for the purpose
of acquiring, holding or disposing of securities within the meaning of Rule
13d-5(b)(1) under the Exchange Act; provided, however, that a group formed
solely for the purpose of voting securities shall not be deemed to be a group
for purpose of this definition) is or becomes the "beneficial owner" (as defined
in Rule 13d-3 under the Exchange Act), directly or indirectly, of 35% or more of
the total voting power of the fully diluted Voting Stock of the Company, (ii)
during any period of two consecutive years, individuals who at the beginning of
such period constituted the Board of Directors of the Company (together with any
new directors whose election by the Board of Directors of the Company or whose
nomination for election by the shareowners of the Company was approved by a vote
of 66 2/3% of the directors of the Company then still in office who were either
directors at the beginning of such period or whose election or nomination for
election was previously so approved) cease for any reason to constitute a
majority of the Board of Directors of the Company then in office, (iii) the
Company consolidates or merges with or into any other Person or any other Person
consolidates or merges with or into the Company, in either case, other than a
consolidation or merger (a) with a Wholly Owned Subsidiary in which all of the
Voting Stock of the Company outstanding immediately prior to the effectiveness
thereof is changed into or exchanged for substantially the same consideration or
(b) pursuant to a transaction in which the outstanding Voting Stock of the
Company is changed into or exchanged for cash, securities or other Property with
the effect that the "beneficial owners" (as such term is used in Section 13(d)
of the Exchange Act) of the outstanding Voting Stock of the Company immediately
prior to such transaction, beneficially own, directly or indirectly, more than
50% of the total voting power of the fully diluted Voting Stock of the surviving
corporation immediately following such transaction or (iv) the Company sells,
conveys, transfers or leases, directly or indirectly, all or substantially all
of its assets to any Person other than a Wholly Owned Subsidiary.
"Change of Control Offer" has the meaning specified in 1001(a).
"Change of Control Payment Date" has the meaning specified in Section
1001(b).
"Change of Control Purchase Price" has the meaning specified in Section
1001(a).
"Change of Control Triggering Event" means the occurrence of both a
Change of Control and a Rating Decline with respect to the Securities.
"Commission" means the Securities and Exchange Commission, as from to
time constituted, created under the Exchange Act or, if at any time after the
execution of this Indenture such Commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act, then the body
performing such duties at such time.
"Company" means the Person named as the "Company" in the first
paragraph of this Indenture until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
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"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its President or a Vice President, and by
its Treasurer, its Secretary or an Assistant Secretary, and delivered to the
Trustee.
"Consolidated Interest Expense" means, for any Person, for any period,
the amount of interest in respect of Indebtedness (including amortization of
original issue discount, fees payable in connection with financings, including
commitment, availability and similar fees, and amortization of debt issuance
costs, non-cash interest payments on any Indebtedness and the interest portion
of any deferred payment obligation and after taking into account the effect of
elections made under, and the net costs associated with, any Interest Rate
Agreement, however denominated, with respect to such Indebtedness), the amount
of Redeemable Dividends, the amount of Preferred Stock dividends in respect of
all Preferred Stock of Restricted Subsidiaries held by Persons other than the
Company or a Restricted Subsidiary, commissions, discounts and other fees and
charges owed with respect to letters of credit and bankers' acceptance
financing, and the interest component of rentals in respect of any Capital Lease
Obligation or Sale and Leaseback Transaction paid, accrued or scheduled to be
paid or accrued by such Person during such period, determined on a consolidated
basis in accordance with GAAP. For purposes of this definition, interest on a
Capital Lease Obligation or a Sale and Leaseback Transaction shall be deemed to
accrue at an interest rate reasonably determined by such Person to be the rate
of interest implicit in such Capital Lease Obligation or Sale and Leaseback
Transaction in accordance with GAAP consistently applied.
"Consolidated Net Income" means for any period, the net income (loss)
of the Company and its Subsidiaries; provided, however, that there shall not be
included in such Consolidated Net Income (i) any net income (loss) of any Person
if such Person is not a Restricted Subsidiary, except that (a) subject to the
limitations contained in (iv) below, the Company's equity in the net income of
any such Person for such period shall be included in such Consolidated Net
Income up to the aggregate amount of cash actually distributed by such Person
during such period to the Company or a Restricted Subsidiary as a dividend or
other distribution (subject, in the case of a dividend or other distribution to
a Restricted Subsidiary, to the limitations contained in clause (iii) below) and
(b) the Company's equity in a net loss of any such Person (other than an
Unrestricted Subsidiary) for such period shall be included in determining such
Consolidated Net Income, (ii) any net income (loss) of any Person acquired by
the Company or a Subsidiary in a pooling of interests transaction for any period
prior to the date of such acquisition, (iii) any net income (loss) of any
Restricted Subsidiary if such Subsidiary is subject to restrictions, directly or
indirectly, on the payment of dividends or the making of distributions by such
Restricted Subsidiary, directly or indirectly, to the Company, except that (a)
subject to the limitations contained in (iv) below, the Company's equity in the
net income of any such Restricted Subsidiary for such period shall be included
in such Consolidated Net Income up to the aggregate amount of cash that could
have been distributed by such Restricted Subsidiary during such period to the
Company or another Restricted Subsidiary as a dividend (subject, in the case of
a dividend to another Restricted Subsidiary, to the limitation contained in this
clause) and (b) the Company's equity in a net loss of any such Restricted
Subsidiary for such period shall be included in determining such
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Consolidated Net Income, (iv) any gain (but not loss) realized upon the sale or
other disposition of any Property, plant or equipment of the Company or its
consolidated Subsidiaries (including pursuant to any Sale and Leaseback
Transaction) which is not sold or otherwise disposed of in the ordinary course
of business and any gain (but not loss) realized upon the sale or other
disposition of any Capital Stock of any Person, (v) any extraordinary gain or
loss and (vi) the cumulative effect of a change in accounting principles.
"Corporate Trust Office" means the office of the Trustee at which at
any particular time its corporate trust business shall be principally
administered, which office at the date of execution of this Indenture is located
at 120 Wall Street, 13th Floor, New York, New York 10043, except that for
purposes of the presentation of Securities for payment or registration of
transfer or exchange, such term means the office or agency of the Trustee at
which at any particular time the corporate agency business of the Trustee shall
be conducted, which office at the date of execution of this Indenture is located
at 111 Wall Street, New York, New York 10043.
"Corporation" means a corporation, association, company/joint stock
company or business trust.
"covenant defeasance option" has the meaning specified in Section
701(b).
"Cumulative EBITDA" means at any date of determination the cumulative
EBITDA of the Company from and after December 31, 1995 through the end of the
fiscal quarter immediately preceding the date of determination or, if such
cumulative EBITDA for such period is negative, minus the amount by which such
cumulative EBITDA is less than zero.
"Cumulative Interest Expense" means at any date of determination the
aggregate amount of Consolidated Interest Expense paid, accrued or scheduled to
be paid or accrued by the Company from December 31, 1995 through the end of the
fiscal quarter immediately preceding the date of determination.
"Currency Agreement" means, for any Person, any foreign exchange
contract, currency swap agreement or other similar agreement as to which such
Person is a party or a beneficiary.
"Credit Facility" means the Amended and Restated Credit Agreement dated
as of October 31, 1996 among the Company, the Lenders (as defined therein) and
Citibank, N.A., as Administration Agent, The Chase Manhattan Bank, as
Syndication Agent, Bank of America Illinois, as Syndication Agent, and Toronto
Dominion (Texas), Inc., as Documentation Agent, and any amendments, supplements,
modifications, extensions, revisions, refinancings or replacements thereof by a
bank or a syndicate of banks.
"Default" means, with respect to the Securities of any series, any
event which is, or after notice or the lapse of time or both would become, an
Event of Default with respect to the Securities of such series.
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"Defaulted Interest" has the meaning specified in Section 307.
"Depositary" means with respect to Securities of any series, or any
Tranche thereof, issuable and issued in whole or in part in global form, the
Person designated as Depositary by the Company pursuant to Section 301 until a
successor Depositary shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter "Depositary" shall mean or include
each Person who is then a Depositary hereunder, and if at any time there is more
than one such Person, "Depositary", as used with respect to the Securities of
any such series, or any Tranche thereof, shall mean the "Depositary" with
respect to the Securities of that series or Tranche.
"Discount Security" means any Security which provides for an amount
less than the principal amount thereof to be due and payable upon a declaration
of acceleration of the Maturity thereof pursuant to Section 802.
"Dollar" or "$" means a dollar or other equivalent unit in such coin or
currency of the United States of America as at the time shall be legal tender
for the payment of public and private debts.
"EBITDA" means, for any Person, for any period, an amount equal to (A)
the sum of (i) Consolidated Net Income for such period, plus (ii) the provision
for taxes for such period based on income or profits to the extent such income
or profits were included in computing Consolidated Net Income and any provision
for taxes utilized in computing net loss under clause (i) hereof, plus (iii)
Consolidated Interest Expense for such period, plus (iv) depreciation for such
period on a consolidated basis, plus (v) amortization of intangibles for such
period on a consolidated basis, plus (vi) any other non-cash items reducing
Consolidated Net Income for such period, minus (B) all non-cash items increasing
Consolidated Net Income for such period, all for such Person and its
Subsidiaries determined in accordance with GAAP consistently applied, except
that with respect to the Company each of the foregoing items shall be determined
on a consolidated basis with respect to the Company and its Restricted
Subsidiaries only.
"Event of Default" has the meaning specified in Section 801.
"Excess Proceeds" has the meaning specified in Section 607(b).
"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
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of Directors of the Company and evidenced by a Board Resolution, dated within 30
days of the relevant transaction.
"GAAP" means United States generally accepted accounting principles as
in effect as of the date of determination, unless stated otherwise.
"Guarantee" means any obligation, contingent or otherwise, of any
Person directly or indirectly guaranteeing any Indebtedness of any Person and
any obligation, direct or indirect, contingent or otherwise, of such Person (i)
to purchase or pay (or advance or supply funds for the purchase or payment of)
such Indebtedness of such Person (whether arising by virtue of partnership
arrangements, or by agreements to keep-well, to purchase assets, goods,
securities or services, to take-or-pay or to maintain financial statement
conditions or otherwise) or (ii) entered into for the purpose of assuring in any
other manner the obligee against loss in respect thereof (in whole or in part);
provided, however, that the term "Guarantee" shall not include endorsements for
collection or deposit in the ordinary course of business. The term "Guarantee"
used as a verb has a corresponding meaning.
"Holder" means a Person in whose name a Security is registered in the
Security Register.
"Incur" means, with respect to any Indebtedness or other obligation of
any Person, to create, issue, incur (by conversion, exchange or otherwise),
extend, assume, Guarantee or become liable in respect of such Indebtedness or
other obligation or the recording, as required pursuant to GAAP or otherwise, of
any such Indebtedness or obligation on the balance sheet of such Person (and
"Incurrence", "Incurred", "Incurrable" and "Incurring" shall have meanings
correlative to the foregoing); provided, however, that a change in GAAP that
results in an obligation of such Person that exists at such time, and is not
theretofore classified as Indebtedness, becoming Indebtedness shall not be
deemed an Incurrence of such Indebtedness.
"Indebtedness" means (without duplication), with respect to any Person,
any indebtedness, secured or unsecured, contingent or otherwise, which is for
borrowed money (whether or not the recourse of the lender is to the whole of the
assets of such Person or only to a portion thereof), or evidenced by bonds,
notes, debentures or similar instruments or representing the balance deferred
and unpaid of the purchase price of any Property (excluding any balances that
constitute customer advance payments and deposits, accounts payable or trade
payables, and other accrued liabilities arising in the ordinary course of
business) if and to the extent any of the foregoing Indebtedness would appear as
a liability upon a balance sheet of such Person prepared in accordance with
GAAP, and shall also include, to the extent not otherwise included (i) any
Capital 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,
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bankers' acceptances or other similar instruments or credit transactions issued
for the account of such Person, (vii) in the case of the Company, Preferred
Stock of its Restricted Subsidiaries and (viii) obligations of any such Person
under any Interest Rate Agreement or Currency Agreement applicable to any of the
foregoing. For purposes of this definition, the maximum fixed repurchase price
of any Redeemable Stock that does not have a fixed repurchase price shall be
calculated in accordance with the terms of such Redeemable Stock as if such
Redeemable Stock were repurchased on any date on which Indebtedness shall be
required to be determined pursuant to this Indenture; provided, however, that if
such Redeemable Stock is not then permitted to be repurchased, the repurchase
price shall be the book value of such Redeemable Stock. The amount of
Indebtedness of any Person at any date shall be the outstanding balance at such
date of all unconditional obligations as described above and the maximum
liability of any other obligations described in clauses (i) through (viii) above
in respect thereof at such date.
"Indenture" means this instrument as originally executed and as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof
and shall include the terms of particular series of Securities established as
contemplated by Section 301.
"Interest", when used with respect to a Discount Security which by its
terms bears interest only after Maturity, means interest payable after Maturity.
"Interest Payment Date", when used with respect to any Security, means
the Stated Maturity of an installment of interest on such Security.
"Interest Rate Agreement" means, for any Person, any interest rate swap
agreement, interest rate cap agreement, interest rate collar agreement or other
similar agreement.
"Investment" by any Person means any direct or indirect loan, advance
or other extension of credit or capital contribution (by means of transfers of
cash or other Property to others or payments for Property or services for the
account or use of others, or otherwise) to, or Incurrence of a Guarantee of any
obligation of, or purchase or acquisition of Capital Stock, bonds, notes,
debentures or other securities or evidence of Indebtedness issued by, any other
Person. In determining the amount of any Investment in respect of any Property
or assets other than cash, such Property or asset shall be valued at its Fair
Market Value at the time of such Investment.
"Investment Grade Rating" means a rating equal to or higher than Baa3
(or the equivalent) by Moody's Investors Service, Inc. (or any successor to the
rating agency business thereof), BBB- (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.
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"legal defeasance option" has the meaning specified in Section 701(b).
"Leverage Ratio" is defined as the ratio of (i) the outstanding
Indebtedness of the Company and the Restricted Subsidiaries divided by (ii) the
LTM Pro Forma EBITDA of such Person.
"Lien" means, with respect to any Property of any Person, any mortgage
or deed of trust, pledge, hypothecation, assignment, deposit arrangement,
security interest, lien, charge, easement (other than any easement not
materially impairing usefulness or marketability), encumbrance, preference,
priority, or other security agreement or preferential arrangement of any kind or
nature whatsoever on or with respect to such Property (including any Capital
Lease Obligation, conditional sale or other title retention agreement having
substantially the same economic effect as any of the foregoing or any Sale and
Leaseback Transaction).
"LTM Pro Forma EBITDA" means, with respect to any Person, the product
of such Person's Pro Forma EBITDA for the most recent four consecutive fiscal
quarters for which financial statements are available.
"Maturity", when used with respect to any Security, means the date on
which the principal of such Security or an installation of principal becomes due
and payable as therein or herein provided, whether at the Stated Maturity, by
declaration of acceleration, upon call for redemption or otherwise.
"Net Available Cash" from an Asset Sale means cash payments received
therefrom (including any cash payments received by way of deferred payment of
principal pursuant to a note or installment receivable or otherwise, but only as
and when received, but excluding any other consideration received in the form of
assumption by the acquiring Person of Indebtedness or other obligations relating
to such Properties or assets or received in any other noncash form) in each case
net of all legal, title and recording tax expenses, commissions and other fees
and expenses Incurred, and all Federal, state, provincial, foreign and local
taxes required to be accrued as a liability under GAAP, as a consequence of such
Asset Sale, and in each case net of all payments made on any Indebtedness which
is secured by any assets subject to such Asset Sale, in accordance with the
terms of any Lien upon or other security agreement of any kind with respect to
such assets, or which must by its terms, or in order to obtain a necessary
consent to such Asset Sale, or by applicable law be repaid out of the proceeds
from such Asset Sale, and net of all distributions and other payments required
to be made to minority interest holders in Subsidiaries or joint ventures as a
result of such Asset Sale.
"Net Cash Proceeds" with respect to any issuance or sale of Capital
Stock, means the cash proceeds of such issuance or sale, net of attorney's fees,
accountants' fees, underwriters' or placement agents' fees, discounts or
commissions and brokerage, consultant and other fees actually Incurred in
connection with such issuance or sale and net of taxes paid or payable as a
result thereof.
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"Net POPs" means the estimated population with respect to a given
service area multiplied by the percentage interest that a Person owns in the
entity licensed by the Federal Communications Commission to operate a wireless
telecommunications system within that service area.
"1996 Indenture" means the Indenture dated as of March 7, 1996 between
the Company and Citibank, N.A., as Trustee, as amended, supplemented or
otherwise modified from time to time in accordance with its terms.
"Officer" means the President, the Chief Financial Officer, the Senior
Vice President - Finance, the Treasurer or the General Counsel of the Company.
"Officers' Certificate" means a certificate signed by two Officers, at
least one of whom shall be the principal executive officer, principal accounting
officer or principal financial officer of the Company, and delivered to the
Trustee; provided, however, that for purposes of Section 301, "Officers'
Certificate" shall mean a certificate executed by the Pricing Committee.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Company, and who shall be acceptable to the Trustee.
"Outstanding", when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
(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
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Outstanding Securities of each such series and each such Tranche, as
the case may be, determined without regard to this clause (x)) shall be
disregarded and deemed not to be Outstanding, except that, in
determining whether the Trustee shall be protected in relying upon any
such request, demand, authorization, direction, notice, consent or
waiver or upon any such determination as to the presence of a quorum,
only Securities which the Trustee knows to be so owned shall be so
disregarded; provided, however, that Securities so owned which have
been pledged in good faith may be regarded as Outstanding if the
pledgee establishes to the satisfaction of the Trustee the pledgee's
right so to act with respect to such Securities and that the pledgee is
not the Company or any other obligor upon the Securities or any
Affiliate of the Company or of such other obligor;
(y) the principal amount of a Discount Security that shall be
deemed to be Outstanding for such purposes shall be the amount of the
principal thereof that would be due and payable as of the date of such
determination upon a declaration of acceleration of the Maturity
thereof pursuant to Section 802; and
(z) the principal amount of any Security which is denominated
in a currency other than United States Dollars or in a composite
currency that shall be deemed to be Outstanding for such purposes shall
be the amount of United States Dollars which could have been purchased
by the principal amount (or, in the case of a Discount Security, the
United States Dollar equivalent on the date determined as set forth
below of the amount determined as provided in (y) above) of such
currency or composite currently evidenced by such Security, in each
such case certified to the Trustee in an Officers' Certificate based
(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 Indebtedness" has the meaning specified in Section 603(b).
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"Permitted Investment" means an Investment by the Company or any
Restricted Subsidiary in (i) a Restricted Subsidiary or a Person which will,
upon the making of such Investment, become a Restricted Subsidiary; provided,
however, that (x) the primary business of such Restricted Subsidiary is a
Related Business or (y) such Restricted Subsidiary is a special purpose entity
formed to facilitate the financing of the Company and its Restricted
Subsidiaries; (ii) another Person if as a result of such Investment such other
Person is merged or consolidated with or into, or transfers or conveys all or
substantially all its assets to, the Company or a Restricted Subsidiary;
provided, however, that such Person's primary business is a Related Business;
(iii) Temporary Cash Investments; (iv) receivables owing to the Company or any
Restricted Subsidiary, if created or acquired in the ordinary course of business
and payable or dischargeable in accordance with customary trade terms; (v)
payroll, travel and similar advances to cover matters that are expected at the
time of such advances ultimately to be treated as expenses for accounting
purposes and that are made in the ordinary course of business; (vi) loans and
advances to employees made in the ordinary course of business consistent with
past practice of the Company or such Restricted Subsidiary, as the case may be,
provided, that such loans and advances do not exceed $15 million at any one time
outstanding; and (vii) stock, obligations or securities received in settlement
of debts created in the ordinary course of business and owing to the Company or
any Restricted Subsidiary or in satisfaction of judgments.
"Permitted Liens" means (i) Liens Incurred by the Company or any
Restricted Subsidiary if, after giving effect to such Incurrence on a pro forma
basis, the amount of the total Indebtedness of the Company and the Restricted
Subsidiaries that is secured by a Lien does not exceed 15% of the product of the
LTM Pro Forma EBITDA of the Company multiplied by 6.5; (ii) Liens on the
Property of the Company or any Restricted Subsidiary existing on March 7, 1996;
(iii) Liens on the Property of the Company or any Restricted Subsidiary to
secure any extension, renewal, refinancing, replacement or refunding (or
successive extensions, renewals, refinancings, replacements or refundings), in
whole or in part, of any Indebtedness secured by Liens referred to in any of
clauses (i), (ii), (viii) or (xi); provided, however, that any such Lien will be
limited to all or part of the same Property that secured the original Lien (plus
improvements on such Property) and the aggregate principal amount of
Indebtedness that is secured by such Lien will not be increased to an amount
greater than the sum of (A) the outstanding principal amount, or, if greater,
the committed amount, of the Indebtedness secured by Liens described under
clauses (i), (ii), (viii) and (xi) at the time the original Lien became a
Permitted Lien under this Indenture and (B) an amount necessary to pay any
premiums, fees and other expenses Incurred by the Company in connection with
such refinancing, refunding, extension, renewal or replacement; (iv) Liens for
taxes, assessments or governmental charges or levies on the Property of the
Company or any Restricted Subsidiary if the same shall not at the time be
delinquent or thereafter can be paid without penalty, or are being contested in
good faith and by appropriate proceedings; (v) Liens imposed by law, such as
carriers', warehousemen's and mechanics' Liens and other similar Liens on the
Property of the Company or any Restricted Subsidiary arising in the ordinary
course of business which secure payment of obligations not more than 60 days
past due or are being contested in good faith and by appropriate proceedings;
(vi) Liens on the Property of the Company or any Restricted Subsidiary Incurred
in the ordinary course of business to secure performance of
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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.
"Permitted Refinancing Indebtedness" means any renewals, extensions,
substitutions, refinancings or replacements of any Indebtedness, including any
successive extensions, renewals, substitutions, refinancings or replacements so
long as (i) the aggregate amount of Indebtedness represented thereby is not
increased (except with respect to fees and expenses Incurred in connection
therewith) by such renewal, extension, substitution, refinancing or replacement,
(ii) the average life and the date such Indebtedness is scheduled to mature is
not shortened and (iii) the new Indebtedness shall not be senior in right of
payment to the Indebtedness that is being extended, renewed, substituted,
refinanced or replaced; provided, that Permitted Refinancing Indebtedness shall
not include (a) Indebtedness of a Subsidiary that refinances Indebtedness of the
Company or (b) Indebtedness of the Company or a Restricted Subsidiary that
refinances Indebtedness of an Unrestricted Subsidiary. In addition to the
foregoing, Permitted Refinancing Indebtedness shall include reborrowings under
the Credit Facility.
"Person" means any individual, corporation, company (including any
limited liability company), partnership, joint venture, trust, unincorporated
organization or government or any
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agency or political subdivision thereof.
"Place of Payment", when used with respect to the Securities of any
series, means the place or places, specified as contemplated by Section 301, at
which, subject to Section 610, the principal of and premium, if any, and
interest, if any, on the Securities of such series are payable.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"Preferred Stock" means any Capital Stock of a Person, however
designated, which entitles the holder thereof to a preference with respect to
dividends, distributions or liquidation proceeds of such Person over the holders
of other Capital Stock issued by such Person.
"Prepayment Offer" has the meaning specified in Section 607(b).
"Prepayment Offer Notice" has the meaning specified in Section 607(c).
"Pricing Committee" means the Executive Vice President and Chief
Financial Officer of the Company, together with the Senior Vice President
Finance of the Company or the Treasurer of the Company, or any other committee
comprised of officers of the Company duly authorized by the Board of Directors
to establish the terms of any series of Securities.
"Pro Forma EBITDA" means for any Person, for any period, the EBITDA of
such Person as determined on a consolidated basis in accordance with GAAP
consistently applied after giving effect to the following: (i) if, during or
after such period, such Person or any of its Subsidiaries shall have made any
Asset Sale, Pro Forma EBITDA of such Person and its Subsidiaries for such period
shall be reduced by an amount equal to the Pro Forma EBITDA (if positive)
directly attributable to the assets which are the subject of such Asset Sale for
the period or increased by an amount equal to the Pro Forma EBITDA (if negative)
directly attributable thereto for such period and (ii) if, during or after such
period, such Person or any of its Subsidiaries completes an acquisition of any
Person or business which immediately after such acquisition is a Subsidiary of
such Person or whose assets are held directly by such Person or a Subsidiary of
such Person, Pro Forma EBITDA shall be computed so as to give pro forma effect
to the acquisition of such Person or business; provided, however, that, with
respect to the Company, all of the foregoing references to "Subsidiary" or
"Subsidiaries" shall be deemed to refer only to the "Restricted Subsidiaries" of
the Company.
"Property" means, with respect to any Person, any interest of such
Person in any kind of property or asset, whether real, personal or mixed, or
tangible or intangible, including, without limitation, Capital Stock in any
other Person (but excluding Capital Stock or other securities
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issued by such first mentioned Person).
"Purchase Date" has the meaning specified in Section 607(c).
"Rating Agencies" mean Standard & Poor's Ratings Group, a division of
McGraw Hill, Inc., Duff & Phelps Credit Rating Co. and Moody's Investors
Service, Inc. or any successor to the respective rating agency businesses
thereof.
"Rating Date" means the date which is 90 days prior to the earlier of
(i) a Change of Control and (ii) public notice of the occurrence of a Change of
Control or of the intention of the Company to effect a Change of Control.
"Rating Decline" means, with respect to the Securities, the occurrence
of the following on, or within 90 days after, the date of public notice of the
occurrence of a Change of Control or of the intention by the Company to effect a
Change of Control (which period shall be extended so long as the rating of such
Securities is under publicly announced consideration for possible downgrade by
any of the Rating Agencies): (a) in the event the Securities are assigned an
Investment Grade Rating by at least two of the three Rating Agencies on the
Rating Date, the rating of the Securities by at least two of the three Rating
Agencies shall be below an Investment Grade Rating; or (b) in the event the
Securities are rated below an Investment Grade Rating by at least two of the
three Rating Agencies on the Rating Date, the rating of the Securities by at
least two of the three Rating Agencies shall be decreased by one or more
gradations (including gradations within rating categories as well as between
rating categories).
"Redeemable Dividend" means, for any dividend with regard to Redeemable
Stock, the quotient of the dividend divided by the difference between one and
the maximum statutory Federal income tax rate (expressed as a decimal number
between 1 and 0) then applicable to the issuer of such Redeemable Stock.
"Redeemable Stock" means, with respect to any Person, any Capital Stock
that by its terms (or by the terms of any security into which it is convertible
or for which it is exchangeable) or otherwise (i) matures or is mandatorily
redeemable pursuant to a sinking fund obligation or otherwise, (ii) is
redeemable at the option of the holder thereof, in whole or in part, or (iii) is
convertible or exchangeable for Indebtedness mandatorily or at the option of the
holder thereof.
"Redemption Date", when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price", when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Regular Record Date", for the interest payable on any Interest Payment
Date on the Securities of any series means the date specified for that purpose
as contemplated by Section 301.
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"Related Business" means any business directly related to the
ownership, development, operation and acquisition of telecommunications systems.
"Required Currency" has the meaning specified in Section 311.
"Responsible Officer", when used with respect to the Trustee, means the
chairman or any vice-chairman of the board of directors, the chairman or any
vice-chairman of the executive committee of the board of directors, the chairman
of the trust committee, the president, any vice president, the secretary, any
assistant secretary, the treasurer, any assistant treasurer, the cashier, any
assistant cashier, any trust officer or assistant trust officer, the controller
or any assistant controller or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above designated
officers and also means, with respect to a particular corporate trust matter,
any other officer of the Trustee to whom such matter is referred because of his
knowledge of and familiarity with the particular subject.
"Restricted Payment" means (i) any dividend or distribution (whether
made in cash, Property or securities) declared or paid on or with respect to any
shares of Capital Stock of the Company or Capital Stock of any Restricted
Subsidiary except for any dividend or distribution which is made solely to the
Company or a Restricted Subsidiary (and, if such Restricted Subsidiary is not a
Wholly Owned Subsidiary, to the other shareowners of such Restricted Subsidiary
on a pro rata basis) or dividends or distributions payable solely in shares of
Capital Stock (other than Redeemable Stock) of the Company; (ii) a payment made
by the Company or any Restricted Subsidiary to purchase, redeem, acquire or
retire any Capital Stock of the Company or Capital Stock of any Affiliate of the
Company (other than a Restricted Subsidiary) or any warrants, rights or options
to directly or indirectly purchase or acquire any such Capital Stock or any
securities exchangeable for or convertible into any such Capital Stock; (iii) a
payment made by the Company or any Restricted Subsidiary to redeem, repurchase,
defease or otherwise acquire or retire for value, prior to any scheduled
maturity, scheduled sinking fund or mandatory redemption payment (other than the
purchase, repurchase, or other acquisition of any Indebtedness subordinate in
right of payment to the Securities purchased in anticipation of satisfying a
sinking fund obligation, principal installment or final maturity, in each case
due within one year of the date of acquisition), Indebtedness of the Company
which is subordinate (whether pursuant to its terms or by operation of law) in
right of payment to the Securities; or (iv) an Investment (other than Permitted
Investments) in any Person.
"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 609 and (ii) an Unrestricted
Subsidiary which is redesignated as a Restricted Subsidiary as permitted
pursuant to Section 609.
"Sale and Leaseback Transaction" means, with respect to any Person, any
direct or indirect arrangement pursuant to which Property is sold or transferred
by such Person or a Restricted Subsidiary of such Person and is thereafter
leased back from the purchaser or transferee thereof
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by such Person or one of its Restricted Subsidiaries.
"Securities" has the meaning stated in the first recital of this
Indenture and more particularly means any securities authenticated and delivered
under this Indenture.
"Securities Act" means the Securities Act of 1933, as amended.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"Senior Indebtedness" means, at any date, any outstanding Indebtedness
of the Company that is pari passu in right of payment with the Securities,
including Indebtedness of the Company outstanding under the 1996 Indenture and
the Credit Facility.
"Senior Notes" means the Company's 7 1/8% Senior Notes Due 2003 and 7
1/2% Senior Notes Due 2006 issued pursuant to the 1996 Indenture.
"Special Record Date" for the payment of any Defaulted Interest on the
Securities of any series means a date fixed by the Trustee pursuant to Section
307.
"Stated Maturity", when used with respect to any Security of any
installment of principal thereof or interest thereon, means the date specified
in such Security as the fixed date on which the principal of such Security or
such installment of principal or interest is due and payable.
"Subordinated Notes" means the Company's subordinated non-negotiable
promissory notes due 2006, together with all agreements or instruments pursuant
to which such subordinated notes were issued.
"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 generally accepted accounting principles such entity is
consolidated with the first-named Person for financial statement purposes.
"Temporary Cash Investments" means any of the following: (i)
Investments in U.S. Government Obligations maturing within 90 days of the date
of acquisition thereof, (ii) Investments in time deposit accounts, certificates
of deposit and money market deposits maturing within 90 days of the date of
acquisition thereof issued by a bank or trust company which is
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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 in clauses
(i), (ii), (iii) and (iv).
"Terminating Covenants" has the meaning specified in Section 601.
"Tranche" means a group of Securities which (a) are of the same series
and (b) have identical terms except as to principal amount and/or date of
issuance.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this Indenture until a successor Trustee shall have become such
with respect to one or more series of Securities pursuant to the applicable
provisions of this Indenture, and thereafter "Trustee" shall mean or include
such Person who is then a Trustee hereunder, and if any time there is more than
one such Person, "Trustee" as used with respect to the Securities of any series
shall mean the Trustee with respect to Securities of that series.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended, as in force at the date as of which this Indenture was executed, except
as provided in Section 1205.
"U.S. Government Obligations" means direct obligations (or certificates
representing an ownership interest in such obligations) of the United States of
America (including any agency or instrumentality thereof) for the payment of
which the full faith and credit of the United States of America is pledged and
which are not callable or redeemable at the issuer's option.
"United States" means the United States of America, its territories,
its possessions and other areas subject to its jurisdiction.
"Unrestricted Subsidiary" means (a) any Subsidiary of the Company in
existence on the Issue Date that is not a Restricted Subsidiary, (b) any
Subsidiary of an Unrestricted Subsidiary and
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(c) any Subsidiary of the Company which is designated after the Issue Date as an
Unrestricted Subsidiary as permitted pursuant to Section 609 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 has made
such examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
compiled with; and
(d) a statement as to whether, in the opinion of each such individual, such
condition or covenant has been compiled with.
Section 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion
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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 his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Section 104. Acts of Holders.
(a) Any request, demand, authorization, direction, notice, consent,
election, waiver or other action provided by this Indenture to be made, given or
taken by Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by an agent duly
appointed in writing or, alternatively, may be embodied in and evidenced by the
record of Holders voting in favor thereof, either in person or by proxies duly
appointed in writing, at any meeting of Holders duly called and held in
accordance with the provisions of Article Thirteen, or a combination of such
instruments and any such record. Except as herein otherwise expressly provided,
such action shall become effective when such instrument or instruments or record
of both are delivered to the Trustee and, where it is hereby expressly required,
to the Company. Such instrument or instruments and any such record (and the
action embodied therein and evidenced thereby) are herein sometimes referred to
as the "Act" of the Holders signing such instrument or instruments and so voting
at any such meeting. Proof of execution of any such instrument or of a writing
appointing any such agent, or of the holding by any Person of a Security, shall
be sufficient for any purpose of this Indenture and (subject to Section 901)
conclusive in favor of the Trustee and the Company, if made in the manner
provided in this Section. The record of any meetings of Holders shall be proved
in the manner provided in Section 1306.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the
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individual signing such instrument or writing acknowledged to him the execution
thereof or may be proved in any other manner which the Trustee and the Company
deem sufficient. Where such execution is by a signer acting in a capacity other
than his individual capacity, such certificate or affidavit shall also
constitute sufficient proof of his authority.
(c) The principal amount (except as otherwise contemplated in clause
(y) of the proviso to the definition of Outstanding) and serial numbers of
Securities held by any Person, and the date of holding the same, shall be proved
by the Security Register.
(d) Any request, demand, authorization, direction, notice, consent,
election, waiver or other Act of a Holder shall bind the Holder of any Security
issued upon the registration of transfer thereof or in exchange therefor or in
lieu thereof in respect of anything done, omitted or suffered to be done by the
Trustee or the Company in reliance thereon, whether or not notation of such
action is made upon such Security.
(e) Until such time as written instruments shall have been delivered to
the Trustee with respect to the requisite percentage of principal amount of
Securities for the action contemplated by such instruments, any such instrument
executed and delivered by or on behalf of the Holder may be revoked with respect
to any or all of such Securities by written notice by such Holder or any
subsequent Holder, proven in the manner in which such instrument was proven.
(f) Securities of any series, or any Tranche thereof, authenticated and
delivered after any Act of Holders may, and shall if required by the Trustee,
bear a notation in form approved by the Trustee as to any action taken by such
Act of Holders. If the Company shall so determine, new Securities of any series,
or any Tranche thereof, so modified as to conform, in the opinion of the Trustee
and the Company, to such action may be prepared and executed by the Company and
authenticated and delivered by the Trustee in exchange for Outstanding
Securities of such series or Tranche.
(g) If the Company shall solicit from Holders any request, demand,
authorization, direction, notice, consent, waiver or other Act, the Company may,
at its option, by Board Resolution, fix in advance a record date for the
determination of Holders entitled to give such request, demand, authorization,
direction, notice, consent, waiver or other Act, but the Company shall have no
obligation to do so. If such a record date is fixed, such request, demand,
authorization, direction, notice, consent, waiver or other Act may be given
before or after such record date, but only the Holders of record at the close of
business on the record date shall be deemed to be Holders for the purposes of
determining whether Holders of the requisite proportion of the Outstanding
Securities have authorized or agreed or consented to such request, demand,
authorization, direction, notice, consent, waiver or other Act, and for that
purpose the Outstanding Securities shall be computed as of the record date. If
such a record date is not fixed, such record date shall be the later of 30 days
prior to the first solicitation of such request, demand, authorization,
direction, notice, consent, waiver or other Act or the date of the most recent
list of Holders furnished to the Trustee pursuant to Section 1501 prior to such
solicitation.
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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 Trustee
Administration, or
(b) the Company by the Trustee or by any Holder shall be sufficient for
every purpose hereunder (unless otherwise herein expressly provided), if in
writing and mailed, first-class postage prepaid, to the Company addressed to the
attention of its Treasurer, at 8725 W. Higgins Road, Chicago, Illinois
60631-2702, or at any other address previously furnished in writing to the
Trustee by the Company. Section 106. Notice to Holders of Securities; Waiver.
Except as otherwise expressly provided herein, where this Indenture
provides for notice to Holders of any event, such notice shall be sufficiently
given, and shall be deemed given, to Holders if in writing and mailed,
first-class postage prepaid, to each Holder affected by such event, at the
address of such Holder as it appears in the Security Register, not later than
the latest date, and not earlier than the earliest date, prescribed for the
giving of such Notice.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice to
Holders by mail, then such notification as shall be made with the approval of
the Trustee shall constitute a sufficient notification for every purpose
hereunder. In any case where notice to Holders is given by mail, neither the
failure to mail such notice, nor any defect in any notice so mailed, to any
particular Holder shall affect the sufficiency of such notice with respect to
other Holders.
Any notice required by this Indenture may be waived in writing by the
Person entitled to receive such notice, either before or after the event
otherwise to be specified therein, and such waiver shall be the equivalent of
such notice. Waivers of notice by Holders shall be filed with the Trustee, but
such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such waiver.
Section 107. Conflict with Trust Indenture Act.
If any provision of this Indenture limits, qualifies or conflicts with
another provision hereof which is required to be included in this Indenture by
any of the provisions of the Trust Indenture Act, such required provision shall
control.
Section 108. Effect of Headings and Table of Contents.
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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.
Section 113. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Security shall not be a Business Day at any Place of Payment,
then (notwithstanding any other provision of this Indenture or of the Securities
other than a provision in Securities of any series, or any Tranche thereof, or
in the Board Resolution or Officers' Certificate which establishes the terms of
such Securities or Tranche, which specifically states that such provision shall
apply in lieu of this Section) payment of interest or principal and premium, if
any, need not be made at such Place of Payment on such date, but may be made on
the next succeeding Business Day at such Place of Payment with the same force
and effect as if made on the Interest Payment Date or Redemption Date, 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 or Stated
Maturity, as the case may be, to such Business Day.
ARTICLE TWO
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Security Forms
Section 201. Forms Generally.
The definitive Securities of each series shall be in substantially the
forms thereof established in Board Resolutions or Officers' Certificates
pursuant to Board Resolutions, or in indentures supplemental hereto, in each
case with such appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Indenture, and may have such
letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with the rules of any
securities exchange or as may, consistently herewith, be determined by the
officers executing such Securities, as evidenced by their execution of the
Securities. If the forms of Securities of any series are established in a Board
Resolution or in an Officers' Certificate pursuant to a Board Resolution, such
Board Resolution and Officers' Certificate, if any, shall be delivered to the
Trustee at or prior to the delivery of the Company Order contemplated by Section
303 for the authentication and delivery of such Securities.
The Securities of each series shall be issuable in registered form
without coupons. The definitive Securities shall be produced in such manner as
shall be determined by the officers executing such Securities, as evidenced by
their execution thereof.
Section 202. Form of Trustees Certificate of Authentication.
The Trustee's certificate of authentication shall be in substantially
the form set forth below:
This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
CITIBANK, N.A.,
as Trustee
By:
Authorized Signatory
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ARTICLE THREE
The Securities
Section 301. Amount Unlimited; Issuable in Series.
Subject to the limitations set forth in Section 603, 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 and will be senior
in right of payment to all future subordinated Indebtedness of the Company.
The Securities may be issued in one or more series. Subject to the last
paragraph of this Section, there shall be established in a Board Resolution or
in an Officers' Certificate pursuant to a Board Resolution, or established in
one or more indentures supplemental hereto, the following terms prior the
issuance of Securities of any series:
(a) the title of the Securities of such series (which shall distinguish the
Securities of such series from Securities of all other series);
(b) any limit upon the aggregate principal amount of the Securities of such
series which may be authenticated and delivered under this Indenture (except for
Securities authenticated and delivered upon registration of transfer of, or in
exchange for, or in lieu of, other Securities of the series pursuant to Section
304, 305, 306, 406 or 1206 and, except for any Securities which, pursuant to
Section 303, are deemed never to have been authenticated and delivered
hereunder);
(c) whether the Securities of such series may be issued in whole or in part
in global form and, if so, the identity of the Depositary for such Securities in
global form, and the terms and conditions, if any, upon which interests in such
Securities in global form may be exchanged, in whole or in part, for the
individual Securities represented thereby;
(d) the Person or Persons (without specific identification) to whom
interest on Securities of such series, or any Tranche thereof, shall be payable
on any Interest Payment Date, if other than the Person in whose name that
Security (or one or more Predecessor Securities) is registered at the close of
business on the Regular Record Date for such interest;
(e) the date or dates on which the principal of the Securities of such
series is payable;
(f) the rate or rates at which the Securities of such series, or any
Tranche
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thereof, shall bear interest, if any (including the rate or rates at
which overdue principal, premium or interest shall bear interest, if
any), or any method or methods by which such rate or rates shall be
determined, the date or dates from which such interest shall accrue,
the Interest Payment Dates on which such interest shall be payable and
the Regular Record Date for the interest payable on Securities on any
Interest Payment Date; and the basis of computation of interest, if
other than as provided in Section 310;
(g) the place or places where (1) the principal of and
premium, if any, and interest, if any, on Securities of such series, or
any Tranche thereof, shall be payable, (2) any Securities of such
series, or any Tranche thereof, may be surrendered for registration of
transfer, (3) Securities of such series, or any Tranche thereof, may be
surrendered for exchange and (4) notices and demands to or upon the
Company in respect of the Securities of such series, or any Tranche
thereof, and this Indenture may be served;
(h) the period or periods within which, the price or prices at
which and the terms and conditions upon which the Securities of such
series, or any Tranche thereof, may be redeemed, in whole or in part,
at the option of the Company;
(i) the obligation, if any, of the Company to redeem or
purchase the Securities of such series, or any Tranche thereof,
pursuant to any sinking fund or analogous provisions or at the option
of a Holder thereof (in addition to purchases at the option of a Holder
pursuant to Section 1001) and the period or periods within which, the
price or prices at which and the terms and conditions upon which such
Securities shall be redeemed or purchased, in whole or in part,
pursuant to such obligation;
(j) the denominations in which Securities, if any, of such
series, or any Tranche thereof shall be issuable if other than
denominations of $1,000 and any integral multiple thereof;
(k) if the principal of or premium, if any, or interest, if
any, on the Securities of such series, or any Tranche thereof, are to
be payable, at the election of the Company or a Holder thereof, in a
coin or currency other than that in which the Securities are stated to
be payable, the period or periods within which, and the terms and
conditions upon which, such election may be made;
(l) the currency or currencies, including composite
currencies, in which payment of the principal of and premium, if any,
and interest, if any, on the Securities of such series, or any Tranche
thereof, shall be payable (if other than the currency of the United
States);
(m) if the principal of or premium, if any, or interest, if
any, on the Securities of such series, or any Tranche thereof, are to
be payable, or are to be payable at the election of the Company or a
Holder thereof, in securities or other property, the type and
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amount of such securities or other property, or the method by which
such amount shall be determined, and the period or periods within
which, and the terms and conditions upon which, any such election may
be made;
(n) if the amount of payments of principal of or premium, if
any, or interest, if any, on the Securities of such series, or any
Tranche thereof, may be determined with reference to an index, the
manner in which such amounts shall be determined;
(o) if other than the principal amount thereof, the portion of
the principal amount of Securities of such series, or any Tranche
thereof, which shall be payable upon declaration of acceleration of the
Maturity thereof pursuant to Section 802;
(p) any Events of Default, in addition to those specified in
Section 801, with respect to the Securities of such series, and any
covenants of the Company for the benefit of the Holders of the
Securities of such series, or any Tranche thereof, in addition to those
set forth in Article Six;
(q) the terms, if any, pursuant to which the Securities of
such series, or any Tranche thereof, may be converted into or exchanged
for shares of Capital Stock or other securities of the Company or any
other Person;
(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 Company Order as contemplated by the proviso of the third paragraph of
Section 303.
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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
Chairman of the Board, its President, one of its Vice Presidents or any other
duly authorized officer, under its corporate seal affixed thereto or reproduced
thereon attested by its Secretary, its Assistant Secretary or any other duly
authorized officer. The signature of any or all of these officers on the
Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Company shall the bind the
Company, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Securities or
did not hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any series executed by the
Company to the Trustee for authentication and delivery, together with a Company
Order for the authentication and delivery; of such Securities, and the Trustee
in accordance with such Company Order shall authenticate and make available for
delivery such Securities; provided, however, that, with respect to Securities of
a series subject to a Periodic Offering, (a) such Company Order may be delivered
by the Company to the Trustee prior to the delivery to the Trustee of such
Securities for authentication and delivery; (b) the Trustee shall authenticate
and make available for delivery Securities of such series for original issue
from time to time, in an aggregate principal amount not exceeding the aggregate
principal amount established for such series, all pursuant to a Company Order or
pursuant to such procedures acceptable to the Trustee as may be specified from
time to time by a Company Order; (c) the maturity date or dates, original issue
date or dates, interest rate or rates and any other terms of Securities of such
series shall be determined by Company Order or pursuant to such procedures; and
(d) if provided for in such procedures, such Company Order may authorize
authentication and delivery pursuant to oral or electronic instructions from the
Company or its duly authorized agent or agents, which oral instructions shall be
promptly confirmed in writing.
In authenticating Securities of any series, and accepting
responsibilities under this Indenture in relation to such Securities, the
Trustee shall be entitled to receive, and (subject to Section 901) shall be
fully protected in relying upon, an Opinion of Counsel stating:
(a) that the forms of such Securities have been duly authorized by the
Company and have been established in conformity with the provisions of this
Indenture;
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(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 valid
and legally binding obligations of the Company, entitled to the
benefits provided by this Indenture, and enforceable in accordance with
their terms, subject, as to enforcement, to laws relating to or
affecting generally the enforcement of creditors' rights, including,
without limitation, bankruptcy and insolvency laws and to general
principles of equity; and
(d) that all laws and requirements in respect of the execution and delivery
by the Company of such Securities have been complied with;
provided, however, that, with respect to Securities of a series subject to a
Periodic Offering, the Trustee shall be entitled to receive such Opinion of
Counsel only once at or prior to the time of the first authentication of
Securities of such series and that the opinions described in clauses (b) and (c)
above may, alternatively, state, respectively:
(x) that, when the terms of such Securities shall have been established
pursuant to a Company Order or pursuant to such procedures as may be specified
from time to time by a Company Order, all as contemplated by and in accordance
with a Board Resolution or an Officers' Certificate pursuant to a Board
Resolution, as the case may be, such terms will have been duly authorized by the
Company and will have been established in conformity with the provisions of this
Indenture; and
(y) that such Securities, when (1) executed by the Company, (2)
authenticated and delivered by the Trustee in accordance with this Indenture,
(3) issued and delivered by the Company and (4) paid for, all as contemplated by
and in accordance with the aforesaid Company Order or specified procedures, as
the case may be, will have been duly issued under this Indenture and will
constitute valid and legally binding obligations of the Company, entitled to the
benefits provided by the Indenture, and enforceable in accordance with their
terms, subject, as to enforcement, to laws relating to or affecting generally
the enforcement of creditors' rights, including, without limitation, bankruptcy
and insolvency laws and to general principles of equity.
With respect to Securities of a series subject to a Periodic Offering,
the Trustee may conclusively rely, as to the authorization by the Company of any
of such Securities, the form and terms thereof and the legality, validity,
binding effect and enforceability thereof, upon the Opinion of Counsel and other
documents delivered pursuant to Sections 201 and 301 and this Section, as
applicable, at or prior to the time of the first authentication of Securities of
such series unless and until such opinion or other documents have been
superseded or revoked. In connection with the
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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):
"Unless this certificate is presented by an authorized
representative of The Depository Trust Company, a New York corporation
("DTC"), to the Company or its agent for registration or transfer,
exchange or payment, and any certificate issued is registered in the
name of CEDE & CO. or such other name as requested by an authorized
representative of DTC (and any payment is made to CEDE & CO. or such
other entity as is requested by an authorized agent of DTC), any
transfer, pledge or other use hereof for value or otherwise by or to
any person is wrongful in so much as the registered owner hereof, CEDE
& CO., has an interest herein.
Each Depositary designated pursuant to Section 301 for a
Registered Security in global form must, at the time of its designation
and at all times while it serves as Depositary, be a clearing agency
registered under the Exchange Act and any other applicable statute or
regulation.
Unless and until this Security is exchanged in whole or in
part for certified Securities registered in the names of the various
beneficial holders hereof as then certified to the Company by DTC or a
successor depositary, this Security may not be transferred except as a
whole by DTC to a nominee of DTC or by a nominee of DTC to DTC or
another nominee of DTC or by DTC or any such nominee to a successor
depositary or a nominee of such successor depositary.
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This Security may be exchanged for certified Securities
registered in the names of the various beneficial owners hereof only if
(a) DTC is at any time unwilling or unable to continue as depositary
and as a successor depositary is not appointed by the Company within 90
days, or (b) the Company elects to issue certified Securities to
beneficial owners (as certified to the Company by DTC or a successor
depositary) of all Securities of the series designated below."
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee or its agent by manual signature, and such certificate
upon any Security shall be conclusive evidence, and the only evidence, that such
Security has been duly authenticated and delivered hereunder and is entitled to
the benefits of this Indenture. Notwithstanding the foregoing, if any Security
shall have been authenticated and delivered hereunder to the Company, or any
Person acting on its behalf, but shall never have been issued and sold by the
Company, and the Company shall deliver such Security to the Trustee for
cancellation as provided in Section 309 together with a written statement (which
need not comply with Section 102 and need not be accompanied by an Opinion of
Counsel) stating that such Security has never been issued and sold by the
Company, for all purposes of this Indenture such Security shall be deemed never
to have been authenticated and delivered hereunder and shall never be entitled
to the benefits hereof.
Section 304. Temporary Securities.
Pending the preparation of definitive Securities of any series, the
Company may execute, and upon Company Order the Trustee shall authenticate and
make available for delivery, temporary Securities which are printed,
lithographed, typewritten, mimeographed or otherwise produced, in any authorized
denomination, substantially of the tenor of the definitive Securities in lieu of
which they are issued, with such appropriate insertions, omissions,
substitutions and other variations as the officers executing such Securities may
determine, as evidenced by their execution of such Securities; provided,
however, that temporary Securities need not recite specific redemption, sinking
fund, conversion or exchange provisions.
If temporary Securities of any series are issued, the Company shall
cause definitive Securities of such series to be prepared without unreasonable
delay. After the preparation of definitive Securities of such series, the
temporary Securities of such series shall be exchangeable for definitive
Securities of such series upon surrender of the temporary Securities of such
series at the office or agency of the Company maintained pursuant to Section 610
in a Place of Payment for such series, without charge to the Holder. Upon
surrender for cancellation of any one or more temporary Securities of any
series, the Company shall execute and the Trustee shall authenticate and make
available for delivery in exchange therefor definitive Securities of the same
series, of authorized denominations and of like tenor and aggregate principal
amount.
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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 610 a register (referred to as the
"Security Register") in which, subject to such reasonable regulations as it may
prescribe, the Company shall provide for the registration of Securities and the
registration of transfer thereof.
Upon surrender for registration of transfer of any Security of any
series at the office of agency of the Company maintained pursuant to Section 610
in a Place of Payment for such series, the Company shall execute, and the
Trustee shall authenticate and make available for delivery, in the name of the
designated transferee or transferees, one or more new Securities of the same
series, of authorized denominations and of like tenor and aggregate principal
amount.
At the option of the Holder, Securities of any series may be exchanged
for other Securities of the same series, of authorized denominations and of like
tenor and aggregate principal amount, upon surrender of the Securities to be
exchanged at any such office or agency. Whenever any Securities are so
surrendered for exchange, the Company shall execute, and the Trustee shall
authenticate and make available for delivery, the Securities which the Holder
making the exchange is entitled to receive.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or
for exchange shall (if so required by the Company or the Trustee or any transfer
agent) be duly endorsed or shall be accompanied by a written instrument of
transfer in form satisfactory to the Company and the Security Registrar or any
transfer agent duly executed by the Holder thereof or his attorney duly
authorized in writing.
Unless otherwise provided in a Board Resolution or an Officers'
Certificate pursuant to a Board Resolution, or in an indenture supplemental
hereto, with respect to Securities of any series, or any Tranche thereof, no
service charge shall be made for any registration of transfer or exchange of
Securities, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in connection with any
registration of transfer or exchange of Securities, other than exchanges
pursuant to Section 304, 306 or 1206 not involving any transfer.
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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.
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.
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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 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
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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 returned to the Company.
Section 310. Computation of Interest.
Except as otherwise specified as contemplated by Section 301 for
Securities of any series, interest on the Securities of each series shall be
computed on the basis of a 360-day year consisting of twelve 30-day months.
Section 311. Payment to Be in Proper Currency.
In the case of any Securities denominated in any currency other than
United States Dollars or in a composite currency (the "Required Currency"),
except as otherwise provided therein, the obligation of the Company to make any
payment of the principal thereof, or the premium or interest thereon, shall not
be discharged or satisfied by any tender by the Company, or recovery
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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.
ARTICLE FOUR
Redemption of Securities
Section 401. Applicability of Article.
Securities of any series, or any Tranche thereof, which are redeemable
before their Stated Maturity shall be redeemable in accordance with their terms
and (except as otherwise specified as contemplated by Section 301 for Securities
of such series or Tranche) in accordance with this Article.
Section 402. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be evidenced
by a Board Resolution or an Officers' Certificate. The Company shall, at least
45 days prior to the Redemption Date fixed by the Company (unless a shorter
notice shall be satisfactory to the Trustee), notify the Trustee in writing of
such Redemption Date and of the principal amount of such Securities to be
redeemed. In the case of any redemption of Securities (a) prior to the
expiration of any restriction on such redemption provided in the terms of such
Securities or elsewhere in this Indenture or (b) pursuant to an election of the
Company which is subject to a
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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:
(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;
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(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 (with reference to the applicable
Section of the Indenture).
With respect to any notice of redemption of Securities at the election
of the Company, unless, upon the giving of such notice, such Securities shall be
deemed to have been paid in accordance with Section 701, such notice may state
that such redemption shall be conditional upon the receipt by the Trustee, on or
prior to the date fixed for such redemption, of money sufficient to pay the
principal of and premium, if any, and interest, if any, on such Securities and
that if such money shall not have been so received such notice shall be of no
force or effect and the Company shall not be required to redeem such Securities.
In the event that such notice of redemption contains such a condition and such
money is not so received, the redemption shall not be made and within a
reasonable time thereafter notice shall be given, in the manner in which the
notice of redemption was given, that such money was not so received and such
redemption was not required to be made.
Notice of redemption of Securities to be redeemed at the election of
the Company, and any notice of nonsatisfaction of a condition for redemption as
aforesaid, shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
Section 405. Securities Payable On Redemption Date.
Notice of redemption having been given as aforesaid, and the
conditions, if any, set forth in such notice having been satisfied, the
Securities or portions thereof so to be redeemed shall, on the Redemption Date,
become due and payable at the Redemption Price therein specified, and from and
after such date (unless, in the case of an unconditional notice of redemption,
the Company shall default in the payment of the Redemption Price and accrued
interest, if any) such Securities or portions thereof, if interest-bearing,
shall cease to bear interest. Upon surrender of any such Security for redemption
in accordance with such notice, such Security or portion thereof shall be paid
by the Company at the Redemption Price, together with accrued interest, if any,
to the Redemption Date; provided, however, that any installment of interest on
any Security the Stated Maturity of which installment is on or prior to the
Redemption Date shall be payable to the Holder of such Security, or one or more
Predecessor Securities, registered as such at the close of business on the
related Regular Record Date according to the terms of such Security and subject
to the provisions of Section 307.
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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 attorney
duly authorized in writing), and the Company shall execute, and the Trustee
shall authenticate and make available for delivery to the Holder of such
Security, without service charge, a new Security or Securities of the same
series, of any authorized denomination requested by such Holder and of like
tenor and in aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Security so surrendered.
ARTICLE FIVE
Sinking Funds
Section 501. Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund
for the retirement of the Securities of any series, or any Tranche thereof,
except as otherwise specified as contemplated by Section 301 for Securities of
such series or Tranche.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series, or any Tranche thereof, is herein referred to
as a "mandatory sinking fund payment", and any payment in excess of such minimum
amount provided for by the terms of Securities of any series, or any Tranche
thereof, is herein referred to as an "optional sinking fund payment". If
provided for by the terms of Securities of any series, or any Tranche thereof,
the cash amount of any sinking fund payment may be subject to reduction as
provided in Section 502. Each sinking fund payment shall be applied to the
redemption of Securities of the series or Tranche in respect of which it was
made as provided for by the terms of such Securities.
Section 502. Satisfaction of Sinking Fund Payments with Securities.
The Company (a) may deliver Outstanding Securities (other than any
previously called for redemption) of a series or Tranche in respect of which a
mandatory sinking fund payment is to be made and (b) may apply as a credit
Securities of such series or Tranche which have been redeemed either at the
election of the Company pursuant to the terms of such Securities or through the
application of permitted optional sinking fund payments pursuant to the terms of
such Securities, in each case in satisfaction of all or any part of such
mandatory sinking fund payment; provided, however, that no Securities shall be
applied in satisfaction of a mandatory sinking fund payment if such Securities
shall have been previously so applied. Securities so applied shall be received
and credited for such purpose by the Trustee at the Redemption Price specified
in such Securities for redemption through operation of the sinking fund and the
amount of such mandatory sinking fund payment shall be reduced accordingly.
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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 Sections 405 and 406.
ARTICLE SIX
Covenants
Section 601. Certain Covenants Terminated.
The covenants set forth in this Article Six will be applicable to the
Company, except that if at any time that:
(i) the ratings assigned to the Securities of any series by at least two of
the three Rating Agencies are Investment Grade Ratings; and
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(ii) no Default or Event of Default has occurred and is continuing, with
respect to the Securities of such series,
the Company and the Restricted Subsidiaries will no longer be subject at any
time therafter to the provisions of this Indenture, with respect to the
Securities of such series described in Section 603, Section 604, Section 606,
Section 607, Section 608, clauses (i), (iii) and (iv) of Section 609 and clause
(iv) of paragraph (a) of Section 1101 (collectively, the "Terminating
Covenants").
Section 602. 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 603. Limitation on Indebtedness.
(a) The Company shall not, and shall not permit any Restricted
Subsidiary to, directly or indirectly, Incur any Indebtedness unless either (i)
after giving effect to the Incurrence of such Indebtedness and the receipt and
application of the proceeds thereof, the Leverage Ratio would not exceed 6.5 or
(ii) such Indebtedness is Permitted Indebtedness.
(b) "Permitted Indebtedness" means any and all of the following: (i)
Indebtedness Incurred pursuant to the Credit Facility in an aggregate amount
outstanding at any time not to exceed $800 million; (ii) Indebtedness in respect
of Capital Lease Obligations or Capital Expenditure Indebtedness, provided, that
(a) the aggregate principal amount of such Indebtedness does not exceed the Fair
Market Value of the Property or asset acquired or constructed and (b) the
aggregate principal amount of all Indebtedness Incurred under this clause (ii)
during any 12- month period, beginning with the 12-month period commencing on
January 1, 1996, does not exceed $50 million, except that any portion of such
$50 million which is not fully utilized in any such 12-month period may be
utilized in the subsequent such 12-month period; (iii) Indebtedness evidenced by
the Senior Notes and Indebtedness evidenced by the Subordinated Notes; (iv)
Indebtedness of the Company owing to and held by a Wholly Owned Subsidiary and
Indebtedness of a Restricted Subsidiary owing to and held by the Company or any
Wholly Owned Subsidiary; provided, however, that any event that results in any
such Wholly Owned Subsidiary ceasing to be a Wholly Owned Subsidiary or any
subsequent transfer of any such Indebtedness (except to the Company or a Wholly
Owned Subsidiary) shall be deemed, in each case, to constitute the Incurrence of
such Indebtedness by the issuer thereof; (v) Indebtedness under Interest Rate
Agreements entered into for the purpose of limiting interest rate risks and
Currency Agreements entered into for non-speculative purposes and designed to
hedge against fluctuations in foreign exchange rates incurred in the ordinary
course of business and consistent with prudent business practice, provided, that
the obligations under such agreements are related to payment obligations on
Indebtedness otherwise permitted by the terms of clause (a) of the immediately
preceding paragraph or clauses (i) through (viii) of this paragraph, provided,
further, that such Interest Rate
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Agreements and Currency Agreements do not increase the Indebtedness of the
Company outstanding at any time other than as a result of fluctuations in
interest rates or foreign exchange rates or by reason of customary fees,
indemnities and compensation payable thereunder; (vi) Indebtedness in connection
with one or more standby letters of credit or performance bonds issued in the
ordinary course of business or pursuant to self-insurance obligations and not in
connection with the borrowing of money or the obtaining of advances or credit;
(vii) Indebtedness outstanding on December 31, 1996 not otherwise described in
clauses (i) through (vi) of this paragraph (b) and specified on Schedule A
hereto; and (viii) Permitted Refinancing Indebtedness Incurred in respect of
Indebtedness Incurred pursuant to clause (i) of the immediately preceding
paragraph (a) and clauses (i), (ii), (iii) and (vii) of this paragraph (b).
Section 604. Limitation on Restrictions on Distributions from Restricted
Subsidiaries.
The Company shall not, and shall not permit any Restricted Subsidiary
to, directly or indirectly, create or otherwise cause or suffer to exist or
become effective, or enter into any agreement with any Person that would cause
to become effective, any consensual encumbrance or restriction (other than
pursuant to applicable law or regulation) on the ability of any Restricted
Subsidiary to (a) pay dividends, in cash or otherwise, or make any other
distributions on or in respect of its Capital Stock, or pay any Indebtedness or
other obligation owed, to the Company or any other Restricted Subsidiary, (b)
make any loans or advances to the Company or any other Restricted Subsidiary or
(c) transfer any of its Property or assets to the Company or any other
Restricted Subsidiary. Such limitation will not apply (1) with respect to
clauses (a), (b) and (c) above, to encumbrances and restrictions (i) in
existence under or by reason of any agreements in effect on March 7, 1996 and
specified on Schedule B hereto, (ii) existing at the time such Restricted
Subsidiary became a Restricted Subsidiary if such encumbrance or restriction was
not created in connection with or in anticipation of the transaction or series
of related transactions pursuant to which such Restricted Subsidiary became a
Restricted Subsidiary or was acquired by the Company or (iii) which result from
the renewal, refinancing, extension or amendment of an agreement referred to in
the immediately preceding clauses (1) (i) and (ii) above and in clauses (2) (i)
and (ii) below, provided, such encumbrance or restriction is no more restrictive
to the Company or Restricted Subsidiary and is not materially less favorable to
the Holders of the Securities than those under or pursuant to the agreement
evidencing the Indebtedness so extended, renewed, refinanced or replaced, and
(2) with respect to clause (c) only, to (i) any encumbrance or restriction
relating to Indebtedness that is secured and is permitted to be Incurred
pursuant to the provisions under Section 603 and Section 605 that limit the
right of the debtor to dispose of the assets or Property securing such debt,
(ii) any encumbrance or restriction in connection with an acquisition of
Property, so long as such encumbrance or restriction relates solely to the
Property so acquired and was not created in connection with or in anticipation
of such acquisition, (iii) customary provisions restricting subletting or
assignment of leases and customary provisions in other agreements that restrict
assignment of such agreements or rights thereunder or (iv) customary
restrictions contained in asset sale agreements limiting the transfer of such
assets pending the closing of such sale.
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Section 605. 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 606. Limitation on Restricted Payments.
(a) The Company shall not make, and shall not permit any Restricted
Subsidiary to make, any Restricted Payment if at the time of, and after giving
effect to, such proposed Restricted Payment, (i) a Default or Event of Default
shall have occurred and be continuing, (ii) the Company could not Incur at least
$1.00 of additional Indebtedness pursuant to clause (i) of paragraph (a) of
Section 603 or (iii) the aggregate amount of such Restricted Payment and all
other Restricted Payments made since March 7, 1996 (the amount of any Restricted
Payment, if other than cash, to be based upon Fair Market Value) would exceed an
amount equal to the sum of (1) the excess of (A) Cumulative EBITDA over (B) the
product of 1.5 and Cumulative Interest Expense, (2) Capital Stock Sale Proceeds,
(3) the amount by which Indebtedness of the Company or any Restricted Subsidiary
is reduced on the Company's balance sheet upon the conversion or exchange (other
than by a Subsidiary) subsequent to March 7, 1996 of any Indebtedness of the
Company or any Restricted Subsidiary convertible or exchangeable for Capital
Stock (other than Redeemable Stock) of the Company (less the amount of any cash
or other Property distributed by the Company or any Restricted Subsidiary upon
conversion or exchange), (4) an amount equal to the net reduction in Investments
made by the Company and the Restricted Subsidiaries subsequent to March 7, 1996
in any Person resulting from (A) payments of interest on debt, dividends,
repayment of loans or advances, or other transfers or distributions of Property
(but only to the extent such net reduction in Investments has not been utilized
in the calculation of EBITDA for purposes of clause (iii)(1) above or to permit
an Investment pursuant to clause (vi) in the immediately following paragraph
(b)), in each case to the Company or any Restricted Subsidiary from any Person
or (B) the redesignation of any Unrestricted Subsidiary as a Restricted
Subsidiary, not to exceed, in the case of (A) or (B), the amount of such
Investments previously made by the Company and the Restricted Subsidiaries in
such Person or such Unrestricted Subsidiary, as the case may be, which were
treated as Restricted Payments and (5) $25 million.
(b) Notwithstanding the foregoing limitation, the Company may (i) pay
dividends on its Capital Stock within 60 days of the declaration thereof if, on
the declaration date, such dividends could have been paid in compliance with
this Indenture, (ii) redeem, repurchase, defease, acquire or retire for value,
any Indebtedness subordinate (whether pursuant to its terms or by operation of
law) in right of payment to the Securities of each series with the proceeds of
any Permitted Refinancing Indebtedness, (iii) acquire, redeem or retire Capital
Stock of the
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Company or Indebtedness subordinate (whether pursuant to its terms or by
operation of law) in right of payment to the Securities of each series in
exchange for, or in connection with a substantially concurrent issuance of,
Capital Stock of the Company (other than Redeemable Stock and other than Capital
Stock issued or sold to a Subsidiary or an employee stock ownership plan or
other trust established by the Company or any Subsidiary), (iv) consummate an
exchange of Investments, the primary businesses of which are Related Businesses,
that is in compliance with clauses (i) and (ii)(B) of paragraph (a) of Section
607, (v) acquire Capital Stock in a Person substantially all of the assets of
which are Subsidiaries and Investments, the primary businesses of which are
Related Businesses, if at least 80% of the Net POPs of such Person are in its
Subsidiaries, and as a result of the acquisition of such Capital Stock, such
Person and its Subsidiaries become Restricted Subsidiaries of the Company, (vi)
make Investments in Persons, the primary businesses of which are Related
Businesses (other than Investments in the Capital Stock of the Company), the
costs to the Company of which do not exceed $75 million in the aggregate at any
one time outstanding for all such Investments made in reliance upon this clause
(vi), such amount to be increased by (1) any Net Cash Proceeds received from the
sale of Investments (but only to the extent such Net Cash Proceeds have not been
utilized to permit a Restricted Payment pursuant to clause (iii)(1) or (iii)(4)
in the immediately preceding paragraph (a) or to permit an Investment pursuant
to clause (vi)(2) hereof) and (2) an amount equal to the net reduction in
Investments made by the Company and the Restricted Subsidiaries subsequent to
March 7, 1996 in any Person resulting from payments of interest on debt,
dividends, repayment of loans or advances, or other transfers or distributions
of Property to the Company or any Restricted Subsidiary from any Person (but
only to the extent such net reduction in Investments has not been utilized to
permit a Restricted Payment pursuant to clause (iii)(1) or (iii)(4) in the
immediately preceding paragraph (a) or to permit an Investment pursuant to
clause (vi)(1) hereof), not to exceed, in the case of clause (vi)(2), the amount
of such Investments previously made by the Company and the Restricted
Subsidiaries in such Person which were treated as Restricted Payments, and (vii)
pay scheduled dividends (not constituting a return on capital) on Preferred
Stock of a Restricted Subsidiary or Redeemable Stock of the Company issued
pursuant to and in compliance with the provisions under Section 603.
(c) Any payments made pursuant to clauses (ii), (iii), (iv), (v) and
(vii) of the immediately preceding paragraph (b) shall be excluded from the
calculation of the aggregate amount of Restricted Payments made after March 7,
1996; provided, however, that the proceeds from the issuance of Capital Stock
pursuant to clause (iii) of the immediately preceding paragraph (b) shall not
constitute Capital Stock Sale Proceeds for purposes of clause (iii)(2) of
paragraph (a) hereof to the extent utilized to acquire, redeem or retire Capital
Stock of the Company or repay Indebtedness subordinate in right of payment to
the Securities of each series.
Section 607. Limitation on Asset Sales.
(a) The Company shall not, and shall not permit any Restricted
Subsidiary to, directly or indirectly, consummate any Asset Sale after the Issue
Date unless (i) the Company or such Restricted Subsidiary, as the case may be,
receives consideration at the time of such Asset Sale
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at least equal to the Fair Market Value of the shares and assets subject to such
Asset Sale and (ii) (A) at least 80% of the consideration paid to the Company or
such Restricted Subsidiary in connection with such Asset Sale is in the form of
cash, cash equivalents, or the assumption by the purchaser of liabilities of the
Company (other than liabilities of the Company that are by their terms
subordinate to the Securities of each series) or any Restricted Subsidiary as a
result of which the Company and the remaining Restricted Subsidiaries are no
longer liable or (B) the consideration paid to the Company or such Restricted
Subsidiary is determined in good faith by the Board of Directors of the Company,
as evidenced by a Board Resolution, to be substantially comparable in type to
the assets being sold. The Net Available Cash (or any portion thereof) from
Asset Sales may be applied by the Company or a Restricted Subsidiary, to the
extent the Company or such Restricted Subsidiary elects, (A) to prepay, repay or
purchase Indebtedness of the Company under the Credit Facility or other
Indebtedness which is not subordinate to the Securities of each series or
Indebtedness of a Restricted Subsidiary (in each case excluding Indebtedness
owed to the Company or an Affiliate of the Company); or (B) to reinvest in
Additional Assets (including by means of an Investment in Additional Assets by a
Restricted Subsidiary with Net Available Cash received by the Company or another
Restricted Subsidiary).
(b) Any Net Available Cash from an Asset Sale not applied in accordance
with the preceding paragraph (a) within one year from the date of such Asset
Sale or the receipt of such Net Available Cash shall constitute "Excess
Proceeds". When the aggregate amount of Excess Proceeds exceeds $25 million
(taking into account income earned on such Excess Proceeds), the Company will be
required to make an offer to purchase (the "Prepayment Offer") the Securities of
each series, on a pro rata basis according to principal amount, at a purchase
price equal to 100% of the principal amount thereof plus accrued and unpaid
interest thereon, if any, to the date of purchase in accordance with the
procedures (including prorating in the event of oversubscription) set forth in
this Indenture. If the aggregate principal amount of Securities surrendered for
purchase by Holders thereof exceeds the amount of Excess Proceeds, then the
Trustee shall select the Securities of each series to be purchased pro rata
according to principal amount with such adjustments as may be deemed appropriate
by the Company so that only Securities in denominations of $1,000, or integral
multiples thereof, shall be purchased. To the extent that any portion of the
amount of Net Available Cash remains after compliance with the preceding
sentence and provided that all Holders of Securities have been given the
opportunity to tender their Securities for purchase as described in the
following paragraph in accordance with the Indenture, the Company or such
Restricted Subsidiary may use such remaining amount for general corporate
purposes and the amount of Excess Proceeds will be reset to zero.
(c) Within five Business Days after the Excess Proceeds exceeds $25
million, the Company shall send a written notice, by first-class mail, to the
Holders of the Securities of each series (the "Prepayment Offer Notice"),
accompanied by such information regarding the Company as the Company in good
faith believes will enable such Holders of the Securities to make an informed
decision with respect to the Prepayment Offer. The Prepayment Offer Notice will
state, among other things, (i) that the Company is offering to purchase
Securities pursuant to the provisions of this Section 607 of this Indenture;
(ii) that any Security (or any portion thereof)
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accepted for payment (and duly paid on the Purchase Date) pursuant to the
Prepayment Offer shall cease to accrue interest after the Purchase Date; (iii)
the purchase price and purchase date, which shall be, subject to any contrary
requirements of applicable law, no less than 30 days nor more than 60 days from
the date the Prepayment Offer Notice is mailed (the "Purchase Date"); (iv) the
aggregate principal amount of Securities (or portions thereof) to be purchased
and (v) a description of the procedure which Holders of Securities must follow
in order to tender their Securities (or portions thereof) and the procedures
that Holders of the Securities must follow in order to withdraw an election to
tender their Securities (or portions thereof) for payment.
Section 608. Limitation on Transactions with Affiliates.
(a) The Company shall not, and shall not permit any Restricted
Subsidiary to, directly or indirectly, conduct any business or enter into or
suffer to exist any transaction or series of transactions (including the
purchase, sale, transfer, lease or exchange of any property or the rendering of
any service) with, or for the benefit of, any Affiliate of the Company (an
"Affiliate Transaction") unless (i) the terms of such Affiliate Transaction are
(x) with respect to an Affiliate Transaction involving aggregate payments or
value in excess of $250,000, set forth in writing, (y) in the best interest of
the Company or such Restricted Subsidiary, as the case may be, and (z) no less
favorable to the Company or such Restricted Subsidiary, as the case may be, than
those that could be obtained in a comparable arm's-length transaction with a
Person that is not an Affiliate of the Company or such Restricted Subsidiary and
(ii) with respect to an Affiliate Transaction involving aggregate payments or
value in excess of $15 million, the Board of Directors of the Company (including
a majority of the disinterested members of the Board of Directors of the
Company) approves such Affiliate Transaction and, in its good faith judgment,
believes that such Affiliate Transaction complies with clauses (i)(y) and (z) of
this paragraph as evidenced by a Board Resolution.
(b) Notwithstanding the foregoing limitation, the Company may enter
into or suffer to exist the following: (i) any transaction pursuant to any
contract in existence on March 7, 1996, including renewals, extensions and
replacements thereof on terms no less favorable to the Company and the
Restricted Subsidiaries; (ii) any transaction or series of transactions between
the Company and one or more of the Restricted Subsidiaries or between two or
more of the Restricted Subsidiaries (provided that no more than 5% of the equity
interest in any of such Restricted Subsidiaries is owned by an Affiliate of the
Company (other than a Restricted Subsidiary)); (iii) any Restricted Payment
permitted to be made pursuant to Section 606; (iv) the payment of compensation
(including, amounts paid pursuant to employee benefit plans) for the personal
services of officers, directors and employees of the Company or any of the
Restricted Subsidiaries, so long as the Board of Directors of the Company in
good faith shall have approved the terms thereof and deemed the services
theretofore or thereafter to be performed for such compensation or fees to be
fair consideration therefor; and (v) loans and advances to employees made in the
ordinary course of business and consistent with past practice of the Company or
such Restricted Subsidiary, as the case may be, provided, that such loans and
advances do not exceed $15 million at any one time outstanding.
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Section 609. 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 immediately after
giving effect to such designation on a pro forma basis, (i) the Company's
Leverage Ratio does not exceed 6.5; (ii) there exist no Liens (other than
Permitted Liens) on the property of the Company or the Restricted Subsidiaries,
(iii) the Company and the Restricted Subsidiaries are in compliance with Section
604, (iv) in the case of the designation of a Restricted Subsidiary as an
Unrestricted Subsidiary, the Fair Market Value of the Restricted Subsidiary at
the time of such designation would be permitted as an Investment pursuant to
Section 606 and (v) 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 610. Maintenance of Office or Agency.
The Company shall maintain in each Place of Payment for the Securities
of any series, or any Tranche thereof, an office or agency where such Securities
may be presented or surrendered for payment, where such Securities may be
surrendered for registration of transfer, exchange or conversion and where
notices and demands to or upon the Company in respect of such Securities and
this Indenture may be served. The Company shall give prompt written notice to
the Trustee of the location, and any change in the location, of such office or
agency and prompt notice to the Holders of any such change in the manner
specified in Section 106. If at any time the Company shall fail to maintain any
such required office or agency in respect of Securities of any series, or any
Tranche thereof, or shall fail to furnish the Trustee with the address thereof,
such presentations and surrenders of such Securities may be made and notices and
demands may be made or served at the Corporate Trust Office of the Trustee, and
the Company hereby appoints the Trustee as its agent to receive such respective
presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more other
offices or agencies where the Securities of one or more series, or any Tranche
thereof, may be presented or surrendered for any or all such purposes and may
from time to time rescind such designations; provided, however, that no such
designation or rescission shall in any manner relieve the Company of its
obligation to maintain an office or agency for such purposes in each Place of
Payment for such Securities in accordance with the requirements set forth above.
The Company shall give prompt written notice to the Trustee, and prompt notice
to the Holders in the manner specified in Section 106, of any such designation
or rescission and of any change in the location of any such other office or
agency.
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
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perform all functions to be performed at such office or agency.
Section 611. Money for Securities Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent with
respect to the Securities of any series, or any Tranche thereof, it shall, on or
before each due date of the principal of and premium, if any, or interest, if
any, on any of such Securities, segregate and hold in trust for the benefit of
the Persons entitled thereto a sum sufficient to pay the principal and premium
or interest so becoming due until such sums shall be paid to such Persons or
otherwise disposed of as herein provided and shall promptly notify the Trustee
of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for the
Securities of any series, or any Tranche thereof, it shall, prior to each due
date of the principal of and premium, if any, or interest, if any, on such
Securities, deposit with such Paying Agents sums sufficient (without
duplication) to pay the principal and premium or interest so becoming due, such
sum to be held in trust for the benefit of the Persons entitled to such
principal, premium or interest, and (unless such Paying Agent is the Trustee)
the Company shall promptly notify the Trustee of its action or failure so to
act.
The Company shall cause each Paying Agent for the Securities of any
series, or any Tranche thereof, other than the Trustee, to execute and deliver
to the Trustee an instrument in which such Paying Agent shall agree with the
Trustee, subject to the provisions of this Section, that such Paying Agent
shall:
(a) hold all sums held by it for the payment of the principal
of and premium, if any, or interest, if any, on Securities of such
series or Tranche in trust for the benefit of the Persons entitled
thereto until such sums shall be paid to such Persons or otherwise
disposed of as herein provided;
(b) give the Trustee notice of any Default by the Company (or
any other obligor upon the Securities of such series or Tranche) in the
making of any payment of principal of and premium, if any, or interest,
if any, on the Securities of such series or Tranche; and
(c) at any time during the continuance of any such Default,
upon the written request of the Trustee, forthwith pay to the Trustee
all sums so held in trust by such Paying Agent.
The Company may at any time pay, or by Company Order direct any Paying
Agent to pay, to the Trustee all sums held in trust by the Company or such
Paying Agent, such sums to be held by the Trustee upon the same trusts as those
upon which such sums were held by the Company 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.
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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 612. Statement as to Compliance; Notice of Default.
The Company shall deliver to the Trustee, not less often than annually,
a written statement, which need not comply with Section 102, signed by its
principal executive officer, principal financial officer or principal accounting
officer, stating, as to each signer thereof, that:
(a) a review of the activities of the Company during such year and of
performance under this Indenture has been made under his supervision; and
(b) to the best of his knowledge, based on such review, either (1) the
Company has fulfilled all its obligations under this Indenture throughout such
year or if there has been a Default in the fulfillment of any such obligation,
specifying each such Default known to him and the nature and status thereof and
(2) no Event of Default has occurred and is continuing or, if an Event of
Default has occurred and is continuing, specifying each such Event of Default
known to him and the nature and status thereof.
The Company shall file with the Trustee written notice of the
occurrence of any Default or Event of Default within five Business Days of its
becoming aware of any such Default or Event of Default.
Section 613. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any
term, provision or condition set forth in (a) Section 610 or any additional
covenant or restriction specified with respect to the Securities of any series,
or any Tranche thereof, as contemplated by Section 301 if before the time for
such compliance the Holders of at least a majority in aggregate principal amount
of the Outstanding Securities of all series and Tranches with respect to which
compliance with Section 602 or such additional covenant or restriction is to be
omitted, considered as one class, shall, by Act of such Holders, either waive
such compliance in such instance or generally waive compliance with such terms,
provision or condition and (b) Section 603, 604, 605, 606,
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607, 608, 609, 612, or Article Eleven if before the time for such compliance the
Holders of at least a majority in principal amount of Securities Outstanding
under this Indenture shall, by Act of such Holders, either waive such compliance
in such instance or generally waive compliance with such term, provision or
condition; but, in the case of (a) or (b), no such waiver shall extend to or
affect such term, provision or condition except to the extent of expressly
waived, and, until such waiver shall become effective, the obligations of the
Company and the duties of the Trustee in any such term, provision or condition
shall remain in full force and effect.
ARTICLE SEVEN
Satisfaction and Discharge
Section 701. Satisfaction and Discharge Liability of Securities; Defeasance
(a) When (i) the Company delivers to the Trustee all of the
Outstanding Securities of any series for cancellation or (ii) all of the
Outstanding Securities of any series have become due and payable and the Company
irrevocably deposits with the Trustee funds sufficient to pay at Maturity or
upon redemption all of the Outstanding Securities of any series, including
interest thereon, and if in either case the Company pays all other sums payable
hereunder by the Company, then this Indenture shall, subject to Sections 701(c),
702 and 706, cease to be of further effect. The Trustee shall acknowledge
satisfaction and discharge of this Indenture on demand of the Company
accompanied by an Officers' Certificate and an Opinion of Counsel and at the
cost and expense of the Company.
(b) Subject to Sections 701(c), 702 and 706, the Company at any time
may terminate (i) all its obligations under the Securities of any series and
this Indenture ("legal defeasance option") or (ii) its obligations with respect
to the Securities of any series under Sections 601, 603, 604, 605, 606, 607,
608, 609, 1504 (to the extent that failure to comply with such Section 1504
shall not violate the Trust Indenture Act), and 1101(a)(iv) and the related
operation of Section 801(d) 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(d) (with respect to
Section 1101(a)(iv)), 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
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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,
610, 611, 704, 705, 706, 907, 910 and 1502 shall survive until the Securities of
such series have been paid in full. Thereafter, the Company's obligations with
respect to the Securities of such series in Sections 704, 705 and 907 shall
survive.
Section 702. Conditions to Defeasance.
The Company may exercise its legal defeasance option with respect to the
Securities of any series or its covenant defeasance option only if:
(a) the Company irrevocably deposits in trust with the Trustee money or
U.S. Government Obligations for the payment of principal and interest on the
Securities of such series to Maturity;
(b) the Company delivers to the Trustee a certificate from a nationally
recognized firm of independent accountants expressing their opinion that the
payments of principal and interest when due and without reinvestment on the
deposited U.S. Government Obligations plus any deposited money without
investment will provide cash at such times and in such amounts as will be
sufficient to pay principal and interest when due on all of the Securities of
such series to Maturity;
(c) 123 days pass after the deposit is made and during such 123-day period
no Default specified in Section 801(f) or (g) with respect to the Company occurs
which is continuing at the end of such period;
(d) the deposit does not constitute a default under any other agreement
binding on the Company;
(e) the Company delivers to the Trustee an Opinion of Counsel to the effect
that the trust resulting from the deposit does not constitute, or is qualified
as, a regulated investment company under the Investment Company Act of 1940;
(f) in the case of the legal defeasance option, the Company shall have
delivered to the Trustee an Opinion of Counsel stating that (i) the Company has
received from the Internal Revenue Service a ruling, or (ii) since the date of
this Indenture, there has been a change in the applicable Federal income tax
law, in either case to the effect that, and based thereon such Opinion of
Counsel shall confirm that, the Holders of the
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Securities if such series will not recognize income, gain or loss for
Federal income tax purposes as a result of such deposit and defeasance
and will be subject to Federal income tax on the same amounts, in the
same manner and at the same times as would have been the case if such
deposit and defeasance had not occurred;
(g) in the case of the covenant defeasance option, the Company
shall have delivered to the Trustee an Opinion of Counsel to the effect
that the Holders of the Securities if such series will not recognize
income, gain or loss for Federal income tax purposes as a result of
such deposit and covenant defeasance and will be subject to Federal
income tax on the same amounts, in the same manner and at the same
times as would have been the case if such deposit and covenant
defeasance had not occurred; and
(h) the Company delivers to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent to the defeasance and discharge of the Securities of such
series as contemplated by this Article Seven have been complied with.
Section 703. Application of Trust Money.
The Trustee shall hold in trust money or U.S. Government Obligations
deposited with it pursuant to this Article Seven. The Trustee shall apply the
deposited money and the money from U.S. Government Obligations through the
Paying Agent and in accordance with this Indenture to the payment of principal
of and interest on the Securities of the applicable series.
Section 704. Repayment to Company.
The Trustee and the Paying Agent shall promptly turn over to the
Company upon request any excess money or Securities held by them at any time.
Subject to any applicable abandoned property law, the Trustee and the
Paying Agent shall pay to the Company upon written request any money held by
them for the payment of principal or interest that remains unclaimed for two
years, and, thereafter, Holders of the Securities entitled to the money must
look to the Company for payment as general creditors.
Section 705. Indemnity for Government Obligations.
The Company shall pay and shall indemnify the Trustee against any tax,
fee or other charge imposed on or assessed against deposited U.S. Government
Obligations or the principal and interest received on such U.S. Government
Obligations.
Section 706. Reinstatement.
If the Trustee or Paying Agent is unable to apply any money or U.S.
Government
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Obligations in accordance with this Article Seven by reason of any legal
proceeding or by reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such application, the
Company's obligations under this Indenture and the Securities of the applicable
series shall be revived and reinstated as though no deposit had occurred
pursuant to this Article Seven until such time as the Trustee or Paying Agent is
permitted to apply all such money or U.S. Government Obligations in accordance
with this Article Seven.
ARTICLE EIGHT
Events of Default; Remedies
Section 801. Events of Default.
"Events of Default", wherever used herein with respect to Securities of
any series, means any one of the following events:
(a) failure to pay any interest on any Security of such series within 30
days after the same becomes due and payable; or
(b) failure to pay the principal of or premium, if any, on any Security of
such series at Maturity, upon acceleration, optional redemption, required
purchase (including purchases pursuant to Section 1001) or otherwise; or
(c) failure to perform, or breach of, any covenant or warranty of the
Company in Section 603, 604, 605, 606, 607, 608 or 609 (if such covenants have
not been terminated pursuant to Section 601), and such failure to perform or
breach continues for 30 days after there has been given, by registered or
certified mail, to the Company by the Trustee, or to the Company and the Trustee
by the Holders of at least 25% in principal amount of the Outstanding Securities
of such series, a written notice specifying such default or breach and requiring
it to be remedied and stating that such notice is a "Notice of Default"
hereunder; or
(d) failure to perform, or breach of, any covenant or warranty of the
Company in this Indenture (other than those referred to in (a), (b) or (c)
above) and such failure to perform or breach continues for 60 days after there
has been given, by registered or certified mail, to the Company by the Trustee,
or to the Company and the Trustee by the Holders of at least 25% in principal
amount of the Outstanding Securities of such series, a written notice specifying
such default or breach and requiring it to be remedied and stating that such
notice is a "Notice of Default" hereunder; or
(e) the principal of, any premium or accrued and unpaid interest on
Indebtedness of the Company or any Restricted Subsidiary (other than the
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Securities) is not paid when due within any applicable grace period or is
accelerated by the holders thereof, and the total amount of such principal,
premium (if any) and interest that is unpaid or accelerated exceeds in the
aggregate $25 million at the time; or
(f) the Company or any Restricted Subsidiary pursuant to or within the
meaning of any Bankruptcy Law:
(1) commences a voluntary case;
(2) consents to the entry of an order for relief against it in an
involuntary case;
(3) consents to the appointment of a Custodian of it or for any substantial
part of its Property; or
(4) makes a general assignment for the benefit of its creditors;
or takes any comparable action under any foreign laws relating to
insolvency; or
(g) a court of competent jurisdiction enters an order or decree under any
Bankruptcy Law that:
(1) is for relief against the Company or any Restricted Subsidiary in an
involuntary case;
(2) appoints a Custodian of the Company or any Restricted Subsidiary for
any substantial part of its property; or
(3) orders the winding up or liquidation of the Company or any Restricted
Subsidiary;
or any similar relief is granted under any foreign laws and the order or
decree remains unstayed and in effect for 60 days; or
(h) any final judgment or decree for the payment of money in an uninsured
aggregate amount in excess of $25 million at the time is entered against the
Company or any Restricted Subsidiary and is not waived, satisfied or discharged
and there is a period of 60 consecutive days following the entry of such
judgment or decree during which such judgment or decree is not discharged,
waived, satisfied or the execution thereof stayed; or
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(i) any other Events of Default specified with respect to Securities of
such series.
The foregoing will constitute Events of Default whatever the reason for
any such Event of Default and whether it is voluntary or involuntary or is
effected by operation of law or pursuant to any judgment, decree or order of any
court or any order, rule or regulation of any administrative or governmental
body.
The term "Bankruptcy Law" means Title 11, United States Code, or any
similar Federal or state law for the relief of debtors. The term "Custodian"
means any receiver, trustee, assignee, liquidator, custodian or similar official
under any Bankruptcy Law.
Section 802. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default shall have occurred and be continuing with
respect to Securities of any series at the time Outstanding, then in every such
case the Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Securities of such series may declare the principal amount (or, if
any of the Securities of such series are Discount Securities, such portion of
the principal amount of such Securities as may be specified in the terms thereof
as contemplated by Section 301) of all of the Securities of such series to be
due and payable immediately, by a notice in writing to the Company (and to the
Trustee if given by Holders), and upon receipt by the Company of notice of such
declaration such principal amount (or specified amount) shall become immediately
due find payable; provided, however, that if an Event of Default shall have
occurred and be continuing with respect to more than one series of Securities,
the Trustee or the Holders of not less than 25% in aggregate principal amount of
the Outstanding Securities of all such series, considered as one class, may make
such declaration of acceleration, and not the Holders of the Securities of any
one of such series.
At any time after such a declaration of acceleration with respect to
the Securities of any series shall have been made and before a judgment or
decree for payment of the money due shall have been obtained by the Trustee as
hereinafter in this Article provided, the Event or Events of Default giving rise
to such declaration of acceleration shall, without further act, be deemed to
have been waived, and such declaration and its consequences shall, without
further act, be deemed to have been rescinded and annulled, if:
(a) the Company shall have paid or deposited with the Trustee a sum
sufficient to pay:
(1) all overdue interest on all Securities of such series;
(2) the principal of and premium, if any, on any Securities of such 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;
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(3) to the extent that payment of such interest is lawful, interest upon
overdue interest as the rate of rates prescribed therefor in such Securities;
(4) all amounts due to the Trustee under Section 907;
and
(b) any other Event or Events of Default with respect to the Securities of
such series, other than the non-payment of the principal of Securities of such
series which shall have become due solely by such declaration or acceleration,
shall have been cured or waived as provided in Section 813.
No such rescission shall affect any subsequent Event of Default or impair any
right consequent thereon.
Section 803. Collection of Indebtedness and Suits for Enforcement by Trustee.
If any Event of Default described in clause (a) or (b) of Section 801
shall have occurred and be continuing, the Company shall, upon demand of the
Trustee, pay to it, for the benefit of the Holders of the Securities of the
series with respect to which such Event of Default shall have occurred, the
whole amount then due and payable on such Securities for principal and premium,
if any, and interest, if any, and, to the extent permitted by law, interest on
premium, if any, and on any overdue principal and interest, at the rate or rates
prescribed therefor in such Securities, and, in addition thereto, such further
amount as shall be sufficient to cover any amounts due to the Trustee under
Section 907.
If the Company shall fail to pay such amounts forthwith upon such
demand, the Trustee, in its own name and as trustee of an express trust, may
institute a judicial proceeding for the collection of the sums so due and
unpaid, may prosecute such proceeding to judgment or final decree and may
enforce the same against the Company or any other obligor upon such Securities
and collect the moneys adjudged or decreed to be payable in the manner provided
by law out of the property of the Company or any other obligor upon such
Securities, wherever situated.
If an Event of Default with respect to Securities of any series shall
have occurred and be continuing, the Trustee may in its discretion proceed to
protect and enforce its rights and the rights of the Holders of the Securities
of such series by such appropriate judicial proceedings as the Trustee shall
deem most effectual to protect and enforce any such rights, whether for the
specific enforcement of any covenant or agreement in this Indenture or in aid of
the exercise of any power granted herein, or to enforce any other proper remedy.
Section 804. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy,
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reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to the Company, of any other obligor upon the Securities or
the property of the Company or of such other obligor or their creditors, the
Trustee (irrespective of whether the principal of the Securities shall then be
due and payable as therein expressed or by declaration or otherwise and
irrespective of whether the Trustees shall have made any demand on the Company
for the payment of overdue principal or interest) shall be entitled and
empowered, by intervention in such proceeding or otherwise,
(a) to file and prove a claim for the whole amount of principal, premium,
if any, and interest, if any, owing and unpaid in respect of the Securities and
to file such other papers or documents as may be necessary or advisable in order
to have the claims of the Trustee (including any claim for amounts due to the
Trustee under Section 907) and of the Holders allowed in such judicial
proceeding, and
(b) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the Holder, to
pay to the Trustee any amounts due it under Section 907.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
Section 805. Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or the Securities
may be prosecuted and enforced by the Trustee without any proceeding relating
thereto, and any such proceeding instituted by the Trustee shall be brought in
its own name as trustee of an express trust, any recovery of judgment shall,
after provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders in respect of which such judgment has been
recovered.
Section 806. Application of Money Collected.
Any moneys collected by the Trustee with respect to Securities of a
series pursuant to this Article Eight shall be applied in the order following,
at the date or dates fixed by the Trustee and, 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:
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FIRST: To the payment of all amounts due to the Trustee
pursuant to Section 907 (which, in the event that moneys
have been collected in respect of the Securities of more
than one series, shall be allocated among each such series
pro rata based on the aggregate principal amount of each
series then Outstanding);
SECOND: In case the principal or premium, if any, of the
Outstanding Securities of such series shall not have become
due at Maturity, by required repurchase, by declaration or
otherwise, to the payment of interest on the Outstanding
Securities of such series, in the order of the maturity of
the installments of such interest, with interest (to the
extent that such interest has been collected by the Trustee)
upon the overdue installments of interest at the same rate
as the rate of interest specified in the Securities of such
series, such payments to be made ratably to the persons
entitled thereto, without discrimination or preference;
THIRD: In case the principal or premium, if any, of the
Outstanding Securities of such series shall have become due,
at Maturity, by required repurchase, by declaration or
otherwise, to the payment of the whole amount then owing and
unpaid upon the Securities of such series for principal and
premium, if any, and interest, with interest upon the
overdue principal and premium, if any, and (to the extent
that such interest has been collected by the Trustee) upon
overdue installments of interest at the same rate as the
rate of interest specified in the Securities of such series;
and in case such moneys shall be insufficient to pay in full
the whole amount so due and unpaid upon the Securities of
such series, then to the payment of such principal, premium,
if any, and interest, without preference or priority of
principal and premium, if any, over interest, or of interest
over principal and premium, if any, or of any installment of
interest over any other installment of interest, or of any
Securities of such series over any other Securities of such
series, ratably to the aggregate of such principal and
premium, if any, and accrued and unpaid interest; and
FOURTH: To the payment of the remainder, if any, to the
Company, its successors or assigns, or to whosoever may be
lawfully entitled to receive the same, or as a court of
competent jurisdiction may direct.
Any moneys collected by the Trustee with respect to Securities of more
than one series pursuant to this Article Eight shall be applied as set forth
above in this Section 806 upon all such Securities pro rata based on the
aggregate principal amount of such series then Outstanding, without
discrimination or preference.
Section 807. Limitation on Suits.
No Holder shall have any right to institute any proceeding, judicial or
otherwise, with
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respect to this Indenture, or for the appointment of a receiver or trustee, or
for any other remedy hereunder, unless:
(a) such Holder shall have previously given written notice to the Trustee
of a continuing Event of Default with respect to the Securities of such series;
(b) the Holders of not less than a majority in aggregate principal amount
of the Outstanding Securities of all series in respect of which an Event of
Default shall have occurred and be continuing, considered as one class, shall
have made written request to the Trustee to institute proceedings in respect of
such Event of Default in its own name as Trustee hereunder;
(c) such Holder or Holders shall have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be Incurred in
compliance with such request;
(d) the Trustee for 60 days after its receipt of such notice, request and
offer of indemnity shall have failed to institute any such proceeding; and
(e) no direction inconsistent with such written request shall have been
given to the Trustee during such 60-day period by the Holders of a majority in
aggregate principal amount of the Outstanding Securities of all series in
respect of which an Event of Default shall have occurred and be continuing,
considered as one class;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, any provision of this Indenture
to affect, disturb or prejudice the rights of any other of such Holders or to
seek to obtain priority or preference over any other of such Holders or to
enforce any right under this Indenture, except in the manner herein provided and
for the equal and ratable benefit of all of such Holders.
Section 808. Unconditional Right of Holders to Receive Principal, Premium
and Interest.
Notwithstanding any other provision in this Indenture, the Holder of
any Security shall have the right, which is absolute and unconditional, to
receive payment of the principal of and premium, if any, and (subject to Section
807) interest, if any, on such Security on the Stated Maturity or Maturities
expressed in such Security (or, in the case of redemption, on the Redemption
Date) and to institute suit for the enforcement of any such payment, and such
rights shall not be impaired without the consent of such Holder.
Section 809. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce any
right or remedy
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under this Indenture and such proceeding shall have been discontinued or
abandoned for any reason, or shall have been determined adversely to the Trustee
or to such Holder, then and in every such case, subject to any determination in
such proceeding, the Company, and the Trustee and such Holder shall be restored
severally and respectively to their former positions hereunder and thereafter
all rights and remedies of the Trustee and such Holder shall continue as though
no such proceeding had been instituted.
Section 810. Rights and Remedies Cumulative.
Except as otherwise provided in the last paragraph of Section 306, no
right or remedy herein conferred upon or reserved to the Trustee or to the
Holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
Section 811. Delay or Omission Not Waiver.
No delay or omission of the Trustee or any Holder to exercise any right
or remedy accruing upon any Event of Default shall impair any such right or
remedy or constitute a waiver of any such Event of Default or an acquiescence
therein. Every right and remedy given by this Article or by law to the Trustee
or to the Holders may be exercised from time to time, and as often as may be
deemed expedient, by the Trustee or by the Holders, as the case may be.
Section 812. Control by Holders Of Securities.
If an Event of Default shall have occurred and be continuing in respect
of a series of Securities, the Holders of a majority in principal amount of the
Outstanding Securities of such series shall have the right to direct the time,
method and place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred on the Trustee, with respect
to the Securities of such series; provided, however, that if an Event of Default
shall have occurred and be continuing with respect to more than one series of
Securities, the Holders of a majority in aggregate principal amount of the
Outstanding Securities of all such series, considered as one class, shall have
the right to make such direction, and not the Holders of the Securities of any
one of such series; and provided, further, that
(a) such direction shall not be in conflict with rule of law or with this
Indenture, and could not involve the Trustee in personal liability in
circumstances where indemnity would not, in the Trustee's sole discretion, be
adequate, and
(b) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction.
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Section 813. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the
Outstanding Securities of any series may on behalf of the Holders of all of the
Securities of such series waive any past default hereunder with respect to such
series and its consequences except a default
(a) in the payment of the principal of or premium, if any, or interest, if
any, on any Security of such series, or
(b) in respect of a covenant or provision hereof which under Section 1302
cannot be modified or amended without the consent of the Holder of each
Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any and
all Events of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or impair any right consequent thereon.
Section 814. Undertaking for Costs.
The Company and the Trustee agree, and each Holder by his acceptance
thereof shall be deemed to have agreed, that any court may in its discretion
require, in any suit for the enforcement of any right or remedy under this
Indenture, or in any suit against the Trustee for any action taken, suffered or
omitted by it as Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to any suit instituted by the
Company, to any suit instituted by the Trustee, to any suit instituted by any
Holder, or group of Holders, holding in the aggregate more than 10% in aggregate
principal amount of the Outstanding Securities of all series in respect of which
such suit may be brought, considered as one class, or to any suit instituted by
any Holder for the enforcement of the payment of the principal of or premium, if
any, or interest, if any, on any Security on or after the Stated Maturity or
Maturities expressed in such Security (or, in the case of redemption, on or
after the Redemption Date).
Section 815. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead, or in any manner whatsoever claim
or take the benefit or advantage of, any stay or extension law wherever enacted,
now at any time hereafter in force, which may affect 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
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that it will not hinder, delay or impede the execution of any power herein
granted to the Trustee, but will suffer and permit the execution of every such
power as though no such law had been enacted.
ARTICLE NINE
The Trustee
Section 901. Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default with respect to
Securities of any series:
(1) the Trustee undertakes to perform, with respect to
Securities of such series, such duties and only such duties as are
specifically set forth in this Indenture, and no implied covenants or
obligations shall be read into this Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may,
with respect to Securities of such series, conclusively rely, as to the
truth of the statements and the correctness of the opinions expressed
therein, upon certificates or opinions furnished to the Trustee and
conforming to the requirements of this Indenture; but in the case of
any such certificates or opinions which by any provision hereof are
specifically required to be furnished to the Trustee, the Trustee shall
be under a duty to examine the same to determine whether or not they
conform to the requirements of this Indenture.
(b) In case an Event of Default with respect to Securities of any series
shall have occurred and be continuing, the Trustee shall exercise, with respect
to Securities of such series, such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise, as a
prudent man would exercise or use under the circumstances in the conduct of his
own affairs.
(c) No provisions of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own wilful misconduct, except that:
(1) this subsection shall not be construed to limit the effect of
subsection (a) of
this Section;
(2) the Trustee shall not be liable for any error of judgment made in good
faith by a Responsible Officer, unless it shall be proved that the Trustee was
negligent in ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any action taken or
omitted
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to be taken by it in good faith in accordance with the direction of the
Holders of a majority in principal amount of the Outstanding Securities
of any one or more series, as provided herein, relating to the time,
method and place of conducting any proceeding for any remedy available
to the Trustee, under this Indenture with respect to the Securities of
such series; and
(4) no provision of this Indenture shall require the Trustee
to expend or risk its own funds or otherwise Incur any financial
liability in the performance of any of its duties hereunder, or in the
exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to
it.
(d) Whether or not therein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of this
Section.
Section 902. Notice of Defaults.
Within 90 days after the occurrence of any Default hereunder with
respect to the Securities of any series, the Trustee shall transmit by mail to
all Holders of Securities of such series entitled to receive reports pursuant to
Section 1500(c), notice of any Default hereunder known to the Trustee, unless
such Default shall have been cured and waived; provided, however, that, except
in the case of a Default in the payment of the principal of or premium, if any,
or interest, if any, on any Security of such series or in the payment of any
sinking fund installment with respect to Securities of such series, the Trustee
shall be protected in withholding such notice if and so long as the board of
directors, the executive committee or a trust committee of directors or
Responsible Officers of the Trustee in good faith determine that the withholding
of such notice is in the interest of the Holders of Securities of such series;
and provided, further, that in the case of any Default of the character
specified in Section 801(c) or (d) with respect to Securities of such series, no
such notice to Holders shall be given until at least 75 days after the
occurrence thereof.
Section 903. Certain Rights of Trustee.
Subject to the provisions of Section 901:
(a) the Trustee may rely and shall be protected in acting or refraining
from acting upon any resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond, debenture, note, other
evidence of indebtedness or other paper or document believed by it to be genuine
and to have been signed or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order, or as otherwise
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expressly provided herein, and any resolution of the Board of Directors may
be sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the Trustee shall deem
it desirable that a matter be proved or established prior to taking, suffering
or omitting any action hereunder, the Trustee (unless other evidence be therein
specifically prescribed) may, in the absence of bad faith on its part, rely upon
an Officers' Certificate;
(d) the Trustee may consult with counsel and the written advice of such
counsel or any Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it hereunder
in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the rights
or powers vested in it by this Indenture at the request or direction of any
Holder pursuant to this Indenture, unless such Holder shall have offered to the
Trustee reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred by it in compliance with such request or
direction;
(f) the Trustee shall not be bound to make any investigation into the facts
or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of Indebtedness or other paper or document, but the
Trustee, in its discretion, may make such further inquiry or investigation into
such facts or matters as it may see fit, and, if the Trustee shall determine to
make such further inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Company, personally or by agent or attorney;
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder;
(h) except as otherwise provided in Section 801(d), the Trustee shall not
be charged with knowledge of any Event of Default with respect to the Securities
of any series for which it is acting as Trustee unless either (1) a Responsible
Officer of the Trustee assigned to the corporate trust department of the Trustee
(or any successor division or department of the Trustee) shall have actual
knowledge of the Event of Default or (2) written notice of such Event of Default
shall have been given to the Trustee by the Company, any other obligor on such
Securities or by any Holder of such Securities; and
(i) the Trustee shall not be liable for any action taken, suffered, or
omitted to be taken by it in good faith and reasonably believed, upon advice of
counsel, by it to be 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 the Trustee and hold it harmless from and
against, any and all loss, damage, claims, liability or expense,
including taxes (other than taxes based upon 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(d) or Section 801(e), the expenses
(including the reasonable charges and expenses of its counsel) and the
compensation for the services are intended to constitute expenses of
administration under any applicable Federal or State bankruptcy, insolvency or
other similar law.
The provisions of this Section shall survive the termination of this
Indenture.
Section 908. Disqualification; Conflicting Interests.
(a) If the Trustee shall have or acquire any conflicting interest (as
defined in Section 310(b) of the Trust Indenture Act), and a Default has
occurred and is continuing with respect to the Securities of any series, it
shall, within 90 days after ascertaining that it has such conflicting interest,
and if the Default to which such conflicting interest relates has not been cured
or duly waived or otherwise eliminated before the end of such 90-day period,
either eliminate such conflicting interest or resign with respect to the
Securities of such series in the manner and with the effect hereinafter
specified in this Article.
(b) In the event that the Trustee shall fail to comply with the
provisions of subsection (a) of this Section with respect to the Securities of
any series, the Trustee shall, within 10 days after the expiration of such
90-day period, transmit, in the manner and to the extent provided in Section
1503(c), to all Holders of Securities of such series notice of such failure.
(c) Except in the case of a Default in the payment of the principal of
or interest on any Security, or in the payment of any sinking fund or purchase
fund installment, the Trustee shall not be required to resign as provided by
this Section if the Trustee shall have sustained the burden of proving, on
application to the Commission and after opportunity for hearing thereon, that
(1) the Default to which the conflicting interest relates may be cured or waived
during a reasonable period and under the procedures described in such
application and (2) a stay of the Trustee's duty to resign will not be
inconsistent with the interests of the Holders. The filing of such an
application shall automatically stay the performance of the duty to resign until
the Commission orders otherwise.
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(d) Any resignation of the Trustee pursuant to this Section shall
become effective only upon the appointment of a successor Trustee, and such
successor Trustee's acceptance of such appointment, in the manner hereinafter
specified in this Article.
Section 909. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be a
corporation organized and doing business under the laws of the United States of
America, any State thereof or the District of Columbia, authorized under such
laws to exercise corporate trust powers, having a combined capital and surplus
of at least $50,000,000 and subject to supervision or examination by Federal or
state authority and qualified and eligible under this Article. If such
corporation publishes reports of condition at least annually, pursuant to law or
to the requirements of such supervising or examining authority, then for the
purposes of this Section, the combined capital and surplus of such corporation
shall be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. If at any time the Trustee shall cease
to be eligible in accordance with the provisions of this Section, it shall
resign immediately in the manner and with the effect hereinafter specified in
this Article.
Section 910. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 911.
(b) The Trustee may resign at any time with respect to the Securities
of one or more series by giving written notice thereof to the Company. If the
instrument of acceptance by a successor Trustee required by Section 911 shall
not have been delivered to the Trustee within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the
Securities of such series.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal amount
of the Outstanding Securities of such series delivered to the Trustee and to the
Company;
(d) If at any time:
(1) the Trustee shall fail to comply with Section 908(a) after
written request therefor by the Company or by any Holder who has been a
bona fide Holder for at least six months, or
(2) the Trustee shall cease to be eligible under Section
908(a) and shall fail to resign after written request therefor by the
Company or by any such Holder, or
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(3) the Trustee shall become incapable of acting or shall be
adjudged bankrupt or insolvent or a receiver of the Trustee or of its
property shall be appointed or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (x) the Company by a Board Resolution may remove the
Trustee with respect to all Securities or (y) subject to Section 814, any Holder
who has been a bona fide Holder for at least six months may, on behalf of
himself and all others similarly situated, petition any court of competent
jurisdiction for the removal of the Trustee with respect to all Securities and
the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause, with
respect to the Securities of one or more series, the Company, by a Board
Resolution, shall promptly appoint a successor Trustee or Trustees with respect
to the Securities of that or those series (it being understood that any such
successor Trustee may be appointed with respect to the Securities of one or more
or all such series and that at any time there shall be only one Trustee with
respect to the Securities of any particular series) and shall comply with the
applicable requirements of Section 911. If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Securities of any series shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance
of such appointment in accordance with the applicable requirements of Section
911, become the successor Trustee with respect to the Securities of such series
and to that extent supersede the successor Trustee appointed by the Company. If
no successor Trustee with respect to the Securities of any series shall have
been so appointed by the Company or the Holders and accepted appointment in the
manner required by Section 911, any Holder who has been a bona fide Holder of a
Security of such series for at least six months may, on behalf of himself and
all others similarly situated, petition any court of competent jurisdiction for
the appointment of a successor Trustee with respect to the Securities of such
series.
(f) The Company shall give notice of each resignation and each removal
of the Trustee with respect to the Securities of any series and each appointment
of a successor Trustee with respect to the Securities of any series by mailing
written notice of such event by first-class mail, postage prepaid, to all
Holders of Securities of such series as their names and addresses appear in the
Security Register. Each notice shall include the name of the successor Trustee
with respect to the Securities of such series and the address of its Corporate
Trust Office.
Section 911. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of all series, every such successor Trustee so
appointed shall execute, acknowledge and deliver to the Company and to the
retiring Trustee an instrument accepting such appointment, and
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thereupon the resignation or removal of the retiring Trustee shall become
effective and such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee; but, on the request of the Company or the successor
Trustee, such retiring Trustee shall, upon payment of all sums owed to it,
execute and deliver an instrument transferring to such successor Trustee all the
rights, powers and trusts of the retiring Trustee and shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company, the
retiring Trustee and each successor Trustee with respect to the Securities of
one or more series shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and which (1) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series to which the appointment of such successor Trustee related, (2)
if the retiring Trustee is not retiring with respect to all Securities, shall
contain such provisions as shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the retiring Trustee and
(3) shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein or
in such supplemental indenture shall constitute such Trustees co-trustees of the
same trust and that each such Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any other such Trustee; and upon the execution and delivery of such supplemental
indenture the resignation or removal of the retiring Trustee shall become
effective to the extent provided therein and each such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates; but, on request of the Company or any successor Trustee, such
retiring Trustee, upon payment of all sums owed to it, shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall
execute any instruments which fully vest in and confirm to such successor
Trustee all such rights, powers and trusts referred to in subsection (a) or (b)
of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the
time of such acceptance such successor Trustee shall be qualified and eligible
under this Article.
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Section 912. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been authenticated,
but not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated with the same effect
as if such successor Trustee had itself authenticated such Securities.
Section 913. Preferential Collection of Claims Against Company.
(a) Subject to subsection (b) of this Section, if the Trustee shall be
or shall become a creditor, directly or indirectly, secured or unsecured, of the
Company within three months prior to a default, as defined in subsection (c) of
this Section, or subsequent to such a default, then, unless and until such
default shall be cured, the Trustee shall set apart and hold in a special
account for the benefit of the Trustee individually, the Holders and the Holders
of other indenture securities, as defined in subsection (c) of this Section:
(1) an amount equal to any and all reductions in the amount
due and owing upon any claim as such creditor in respect of principal
or interest, effected after the beginning of such three months' period
and valid as against the Company and its other creditors, except any
such reduction resulting from the receipt or disposition of any
property described in clause (2) of this paragraph, or from the
exercise of any right of set-off which the Trustee could have exercised
if a petition in bankruptcy had been filed by or against the Company
upon the date of such default; and
(2) all property received by the Trustee in respect of any
claims as such creditor, either as security therefor, or in
satisfaction or composition thereof, or otherwise, after the beginning
of such three months' period, or an amount equal to the proceeds of any
such property, if disposed of, subject, however, to the rights, if any,
of the Company and its other creditors in such property or such
proceeds.
Nothing herein contained, however, shall affect the right of the
Trustee:
(1) to retain for its own account (A) payments made on account
of any such claim by any Person (other than the Company) who is liable
thereon, (B) the proceeds of the bona fide sale of any such claim by
the Trustee to a third Person and (C) distributions made in cash,
securities or other property in respect of claims filed against the
Company in bankruptcy or receivership or in proceedings for
reorganization pursuant to the Federal
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Bankruptcy Act or applicable state law;
(2) to realize, for its own account, upon any property held by
it as security for any such claim, if such property was held prior to
the beginning of such three months' period;
(3) to realize, for its own account, but only to the extent of
the claim hereinafter mentioned, upon any property held by it as
security for any such claim, if such claim was created after the
beginning of such three months' period and such property was received
as security therefor simultaneously with the creation thereof, and if
the Trustee shall sustain the burden of proving that at the time such
property was so received the Trustee had no reasonable cause to believe
that a default, as defined in subsection (c) of this Section, would
occur within three months; or
(4) to receive payment on any claim referred to in clause (2)
or (3) of this paragraph, against the release of any property held as
security for such claim as provided in such clause (2) or (3), as they
case may be, to the extent of the fair value of such property.
For the purposes of clauses (2), (3) and (4) of this paragraph, property
substituted after the beginning of such three months' period for property held
as security at the time of such substitution shall, to the extent of the fair
value of the property released, have the same status as the property released,
and, to the extent that any claim referred to in any of such paragraphs is
created in renewal of or in substitution for or for the purpose of repaying or
refunding any preexisting claim of the Trustee as such creditor, such claim
shall have the same status as such preexisting claim.
If the Trustee shall be required to account, the funds and property
held in such special account and the proceeds thereof shall be apportioned among
the Trustee, the Holders and the Holders of other indenture securities in such
manner that the Trustee, the Holders and the Holders of other indenture
securities realize, as a result of payments from such special account and
payments of dividends on claims filed against the Company in bankruptcy or
receivership or in proceedings for reorganization pursuant to the Federal
Bankruptcy Act or applicable state law, the same percentage of their respective
claims, figured before crediting to the claim of the Trustee anything on account
of the receipt by it from the Company of the funds and property in such special
account and before crediting to the respective claims of the Trustee and the
Holders and the Holders of other indenture securities dividends on claims filed
against the Company in bankruptcy or receivership or in proceedings for
reorganization pursuant to the Federal Bankruptcy Act or applicable State law,
but after crediting thereon receipts on account of the indebtedness represented
by their respective claims from all sources other than from such dividends and
from the funds and property so held in such special account. As used in this
paragraph, with respect to any claim, the term "dividends" shall include any
distribution with respect to such claim, in bankruptcy or receivership or
proceedings for reorganization pursuant
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to the Federal Bankruptcy Act or applicable state law, whether such distribution
is made in cash, securities or other property, but shall not include any such
distribution with respect to the secured portion, if any, of such claim. The
court in which such bankruptcy, receivership or proceedings for reorganization
is pending shall have jurisdiction (1) to apportion among the Trustee, the
Holders and the Holders of other indenture securities, in accordance with the
provisions of this paragraph, the funds and property held in such special
account and proceeds thereof, or (2) in lieu of such apportionment, in whole or
in part, to give the provisions of this paragraph due consideration in
determining the fairness of the distributions to be made to the Trustee and the
Holders and the Holders of other indenture securities with respect to their
respective claims, in which event it shall not be necessary to liquidate or to
appraise the value of any securities or other property held in such special
account or as security for any such claim, or to make a specific allocation of
such distributions as between the secured and unsecured portions of such claims,
or otherwise to apply to the provisions of this paragraph as a mathematical
formula.
Any Trustee which has resigned or been removed after the beginning of
such three months' period shall be subject to the provisions of this subsection
as though such resignation or removal had not occurred. If any Trustee has
resigned or been removed prior to the beginning of such three months' period, it
shall be subject to the provisions of this subsection if and only if the
following conditions exist:
(1) the receipt of property or reduction of claim, which would have given
rise to the obligation to account, if such Trustee had continued as Trustee,
occurred after the beginning of such three months' period; and
(2) such receipt of property or reduction of claim occurred within three
months after such resignation or removal.
(b) There shall be excluded from the operation of subsection (a) of this
Section a creditor relationship arising from:
(1) the ownership or acquisition of securities issued under any indenture,
or any security or securities having a maturity of one year or more at the time
of acquisition by the Trustee;
(2) advances authorized by a receivership or bankruptcy court of competent
jurisdiction or by this Indenture, for the purpose of preserving any property
which shall at any time be subject to the lien of this Indenture or of
discharging tax liens or other prior liens or encumbrances thereon, if notice of
such advances and of the circumstances surrounding the making thereof is given
to the Holders at the time and in the manner provided in this Indenture;
(3) disbursements made in the ordinary course of business in the capacity
of trustee under an indenture, transfer agent, registrar, custodian, paying
agent, fiscal agent
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or depositary, or other similar capacity;
(4) an Indebtedness created as a result of services rendered
or premises rented; or an Indebtedness created as a result of goods or
securities sold in a cash transaction, as defined in subsection (c) of
this Section;
(5) the ownership of stock or of other securities of a
corporation organized under the provisions of Section 25(a) of the
Federal Reserve Act, as amended, which is directly or indirectly a
creditor of the Company; and
(6) the acquisition, ownership, acceptance or negotiation of
any drafts, bills of exchange, acceptances or obligations which fall
within the classification of self-liquidating paper, as defined in
subsection (c) of this Section.
(c) For the purposes of this Section only:
(1) the term "default" means any failure to make payment in full of the
principal of or interest on any of the Securities or upon the other indenture
securities when and as such principal or interest becomes due and payable;
(2) the term "other indenture securities" means securities upon which the
Company is an obligor outstanding under any other indenture (A) under which the
Trustee is also trustee, (B) which contains provisions substantially similar to
the provisions of this Section and (c) under which a default exists at the time
of the apportionment of the funds and property held in such special account;
(3) the term "cash transaction" means any transaction in which full payment
for goods or securities sold is made within seven days after delivery of the
goods or securities in currency or in checks or other orders drawn upon banks or
bankers and payable upon demand;
(4) the term "self-liquidating paper" means any draft, bill of exchange,
acceptance or obligation which is made, drawn, negotiated or incurred by the
Company for the purpose of financing the purchase, processing, manufacturing,
shipment, storage or sale of goods, wares or merchandise and which is secured by
documents evidencing title to, possession of, or a Lien upon, the goods, wares
or merchandise or the receivables or proceeds arising from the sale of the
goods, wares or merchandise previously constituting the security, provided the
security is received by the Trustee simultaneously with the creation of the
creditor relationship with the Company arising from the making, drawing,
negotiating or incurring of the draft, bill of exchange, acceptance or
obligations;
(5) the term "Company" means any obligor upon the Securities; and
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(6) the term "Federal Bankruptcy Act" means the Bankruptcy Act or Title 11
of the United States Code.
Section 914. Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents with respect
to the Securities of one or more series, or any Tranche thereof, which shall be
authorized to act on behalf of the Trustee to authenticate Securities of such
series or Tranche issued upon original issuance, exchange, registration of
transfer or partial redemption thereof or pursuant to Section 306, and
Securities so authenticated shall be entitled to the benefits of this Indenture
and shall be valid and obligatory for all purposes as if authenticated by the
Trustee hereunder. Whenever reference is made in this Indenture to the
authentication and delivery of Securities by the Trustee or the Trustee's
certificate of authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Trustee by an Authenticating Agent
and a certificate of authentication executed on behalf of the Trustee by an
Authenticating Agent. Each Authenticating Agent shall be acceptable to the
Company and shall at all times be a corporation organized and doing business
under the laws of the United States of America, any State or territory thereof
or the District of Columbia or the Commonwealth of Puerto Rico, authorized under
such laws to act as Authenticating Agent, having a combined capital and surplus
of not less than $25,000,000 and subject to supervision or examination by
Federal or state authority. If such Authenticating Agent publishes reports of
condition at least annually, pursuant to law or to the requirements of said
supervising or examining authority, then for the purposes of this Section, the
combined capital and surplus of such Authenticating Agent shall be deemed to be
its combined capital and surplus as set forth in its most recent report of
condition so published. If at any time an Authenticating Agent shall cease to be
eligible in accordance with the provisions of this Section, such Authenticating
Agent shall resign immediately in the manner and with the effect specified in
this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and to the Company. The Trustee may at any time terminate
the agency of an Authenticating Agent by giving written notice thereof to such
Authenticating Agent and to the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company. Any successor Authenticating
Agent upon acceptance of its
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appointment hereunder shall become vested with all the rights, powers and duties
of its predecessor hereunder, with like effect as if originally named as an
Authenticating Agent. No successor Authenticating Agent shall be appointed
unless eligible under the provisions of this Section.
The Company agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section.
The provisions of Sections 308, 904 and 905 shall be applicable to each
Authenticating Agent.
If an appointment with respect to the Securities of one or more series,
or any Tranche thereof, shall be made pursuant to this Section, the Securities
of such series or Tranche may have endorsed thereon, in addition to the
Trustee's certificate of authentication, an alternate certificate of
authentication substantially in the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
As Trustee
By:
As Authenticating Agent
By:
Authorized Signatory
If all of the Securities of a series may not be originally issued at
one time, and if the Trustee does not have an office capable of authenticating
Securities upon original issuance located in a Place of Payment where the
Company wishes to have Securities of such series authenticated upon original
issuance, the Trustee, if so requested by the Company in writing (which writing
need not comply with Section 102 and need not be accompanied by an Opinion of
Counsel), shall appoint, in accordance with this Section and in accordance with
such procedures as shall be acceptable to the Trustee, an Authenticating Agent
(which, if so requested by the Company, may be an Affiliate of the Company)
having an office in a Place of Payment designated by the Company with respect to
such series of Securities.
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Section 915. Trustee's Application for Instructions from the Company.
Any application by the Trustee for written instructions from the
Company may, at the option of the Trustee, set forth in writing any action
proposed to be taken or omitted by the Trustee under this Indenture and the date
on and/or after which such action shall be taken or such omission shall be
effective. The Trustee shall not be liable for any action taken by, or omission
of, the Trustee in accordance with a proposal included in such application on or
after the date specified in such application (which date shall not be less than
three Business Days after the date any officer of the Company actually receives
such application, unless any such officer shall have consented in writing to any
earlier date) unless prior to taking any such action (or the effective date in
the case of an omission), the Trustee shall have received written instructions
in response to such application specifying the action to be taken or omitted.
ARTICLE TEN
Right to Require Repurchase
Section 1001. Repurchase of Securities at Option of the Holder upon Change of
Control.
(a) Upon the occurrence of a Change of Control Triggering Event, the
Company shall notify the Trustee in writing of such occurrence and shall make an
offer to purchase (the "Change of Control Offer") the Securities at a purchase
price equal to 101% of the principal amount thereof plus any accrued and unpaid
interest thereon to the Change of Control Payment Date (as hereinafter defined)
(the "Change of Control Purchase Price") in accordance with the procedures set
forth in this Section.
(b) Within 30 days of the occurrence of a Change of Control Triggering
Event, the Company also shall (i) cause a notice of the Change of Control Offer
to be sent at least once to the Dow Jones News Service or similar business news
service in the United States and (ii) send by first-class mail, postage prepaid,
to the Trustee and to each Holder of the Securities, at his address appearing in
the register of the Securities maintained by the Securities Registrar, a notice
stating:
(1) that a Change of Control Triggering Event has occurred and the Change
of Control Offer is being made pursuant to this Section and that all such
Securities timely tendered will be accepted for payment, subject to the terms
and conditions set forth herein;
(2) the Change of Control Purchase Price and the purchase date (which shall
be a Business Day no earlier than 30 days and no later than 60 days after the
date on which such notice is mailed) (the "Change of Control Payment Date");
(3) that any such Security (or portions thereof) not tendered will continue
to
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accrue interest;
(4) a description of the transaction or transactions constituting the
Change of Control Triggering Event;
(5) that, unless the Company defaults in the payment of the Change of
Control Purchase Price, any such Securities accepted for payment pursuant to the
Change of Control Offer shall cease to accrue interest after the Change of
Control Payment Date;
(6) that Holders accepting the offer to have their Securities purchased
pursuant to a Change of Control Offer will be required to surrender such
Securities to the Paying Agent at the address specified in the notice prior to
the close of business on the Business Day preceding the Change of Control
Payment Date;
(7) that Holders will be entitled to withdraw their acceptance if the
Paying Agent receives, not later than the close of business on the third
Business Day preceding the Change of Control Payment Date, a facsimile
transmission or letter setting forth the name of the Holder, the principal
amount of such Securities delivered for purchase, and a statement that such
holder is withdrawing his election to have such Securities purchased;
(8) that Holders whose Securities are being purchased only in part will be
issued new Securities equal in principal amount to the unpurchased portion of
the Securities surrendered, provided that each Security purchased and each such
new Security issued shall be in a principal amount in denominations of $1,000
and integral multiples thereof; and
(9) any other procedures that a holder must follow to accept a Change of
Control Offer or effect withdrawal of such acceptance.
(c) On the Change of Control Payment Date, the Company shall (a) accept
for payment the Securities or portions thereof tendered pursuant to the Change
of Control Offer, (b) deposit with the Paying Agent money sufficient to pay the
Change of Control Purchase Price and (c) deliver or cause to be delivered to the
Trustee the Securities so accepted together with an Officers' Certificate
indicating the Securities or portions thereof tendered to the Company. The
Paying Agent shall promptly mail to each holder of Securities so accepted
payment in an amount equal to the Change of Control Purchase Price for such
Securities, and the Trustee shall promptly authenticate and mail to such Holder
a new Security equal in principal amount to any unpurchased portion of the
Securities surrendered; provided that each such new Security shall be issued in
an original principal amount in denominations of $1,000 and integral multiples
thereof.
Section 1002.Covenant To Comply with Securities Laws upon Purchase of
Securities.
In connection with any purchase of Securities under Section 607 or Section
1001 by the
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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 607 or 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 607 or
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 607 or 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; (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; and (iv) immediately after giving effect to such transaction or
series of transactions on a pro forma basis (including, without limitation, any
Indebtedness Incurred or anticipated to be Incurred in connection with such
transaction or series of transactions), the Company or the Surviving Entity, as
the case may be, would be able to Incur at least $1.00 of additional
Indebtedness pursuant to Section 603(a).
(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; or
(j) to cure any ambiguity, to correct or supplement any provision herein
which may be defective or inconsistent with any other provision herein, or to
make any other provisions with respect to matters or questions arising under
this Indenture, provided that such other provisions shall not adversely affect
the interests of the Holders of Securities of any series or Tranche in any
material respect.
Without limiting the generality of the foregoing, if the Trust
Indenture Act shall be amended at any time or times after the date of the
execution and delivery of this Indenture and:
(x) if any such amendment shall require one or more changes to any
provisions hereof or the inclusion herein of any additional provisions, or shall
by operation of law be deemed to effect such changes or incorporate such
provisions by reference or otherwise, this Indenture shall be deemed to have
been amended so as to conform to such amendment to the Trust Indenture Act, and
the Company and the Trustee may, without the consent of any Holders, enter into
an indenture supplemental hereto to effect or evidence such changes or
additional provisions; or
(y) if any such amendment shall permit one or more changes to, or the
elimination of, any provisions hereof which, at the date of the execution and
delivery hereof or at any time
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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 the Redemption Date), or
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(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 613
or Section 813, except to increase the percentages in principal amount
referred to in this Section or such other Sections or to provide that
other provisions of this Indenture cannot be modified or waived without
the consent of the Holder of each Outstanding Security affected
thereby; provided, however, that this clause shall not be deemed to
require the consent of any Holder with respect to changes in the
references to "the Trustee" and concomitant changes in this Section, or
the deletion of this proviso, in accordance with the requirements of
Sections 911(b) and 1201(g).
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or of one or more
Tranches thereof, or which modifies the rights of the Holders of Securities of
such series or Tranches with respect to such covenant or other provision, shall
be deemed not to affect the rights under this Indenture of the Holders of
Securities of any other series or Tranche.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form or any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
Section 1203. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 901) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties, immunities or liabilities under this Indenture or
otherwise.
Section 1204. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby. Any supplemental indenture permitted by this Article may
restate this Indenture in its entirety, and, upon the execution and delivery
thereof, any
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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 Section 1204 and 1206.
ARTICLE THIRTEEN
Meetings of Holders; Action Without Meeting
Section 1301. Purposes for Which Meetings May Be Called.
A meeting of Holders of Securities of one or more, or all, series, or
any Tranche or Tranches thereof, may be called at any time and from time to time
pursuant to this Article to make, give or take any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be made, given or taken by Holders of Securities of such
series or Tranches.
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Section 1302. Call, Notice and Place of Meetings.
(a) The Trustee may at any time call a meeting of Holders of Securities
of one or more, or all, series, or any Tranche or Tranches thereof, for any
purpose specified in Section 1301, to be held at such time and at such place in
the Borough of Manhattan, The City of New York, as the Trustee shall determine,
or, with the approval of the Company, at any other place. Notice of every such
meeting, setting forth the time and the place of such meeting and in general
terms the action proposed to be taken at such meeting, shall be given, in the
manner provided in Section 106, not less than 21 nor more than 180 days prior to
the date fixed for the meeting.
(b) If the Trustee shall have been requested to call a meeting of the
Holders of Securities of one or more, or all, series, or any Tranche or Tranches
thereof, by the Company or by the Holders of 25% in aggregate principal amount
of all of such series and Tranches, considered as one class, for any purpose
specified in Section 1301 by written request setting forth in reasonable detail
the action proposed to be taken at the meeting, and the Trustee shall not have
given the notice of such meeting within 21 days after receipt of such request or
shall not thereafter proceed to cause the meeting to be held as provided herein,
then the Company or the Holders of Securities of such series and Tranches in the
amount above specified, as the case may be, may determine the time and the place
in the Borough of Manhattan, The City of New York, or in such other place as
shall be determined or approved by the Company, for such meeting and may call
such meeting for such purposes by giving notice thereof as provided in
subsection (a) of this Section.
(c) Any meeting of Holders of Securities of one or more, or all,
series, or any Tranche or Tranches thereof, shall be valid without notice if the
Holders of all Outstanding Securities of such series or Tranche are present in
person or by proxy and if representatives of the Company and the Trustee are
present, or if notice is waived in writing before or after the meeting by the
Holders of all Outstanding Securities of such series, or by such of them as are
not present at the meeting in person or by proxy, and by the Company and the
Trustee.
Section 1303. Persons Entitled to Vote at Meetings.
To be entitled to vote at any meeting of Holders of Securities of one
or more, or all, series, or any Tranche or Tranches thereof, a Person shall be
(a) a Holder of one or more Outstanding Securities of such series or Tranche, or
(b) a Person appointed by an instrument in writing as proxy for a Holder or
Holders of one or more Outstanding Securities of such series or Tranches by such
Holder or Holders. The only Persons who shall be entitled to attend any meeting
of Holders of Securities of any series or Tranche shall be the Persons entitled
to vote at such meeting and their counsel, any representatives of the Trustee
and its counsel and any representatives of the Company and its counsel.
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Section 1304. Quorum, Action.
The Persons entitled to vote a majority in aggregate principal amount
of the Outstanding Securities of the series and Tranches with respect to which a
meeting shall have been called as hereinbefore provided, considered as one
class, shall constitute a quorum for a meeting of Holders of Securities of such
series and Tranches; provided, however, that if any action is to be taken at
such meeting which this Indenture expressly provides may be taken by the Holders
of a specified percentage, which is less than a majority, in principal amount of
the Outstanding Securities of such series and Tranches, considered as one class,
the Persons entitled to vote such specified percentage in principal amount of
the Outstanding Securities of such series and Tranches, considered as one class,
shall constitute a quorum. In the absence of a quorum within one hour of the
time appointed for any such meeting, the meeting shall, if convened at the
request of Holders of Securities of such series and Tranches, be dissolved. In
any other case the meeting may be adjourned for a period of not less than 10
days as determined by the chairman of the meeting prior to the adjournment of
such meeting. In the absence of a quorum at any such adjourned meeting, such
adjourned meeting may be further adjourned for a period of not less than 10 days
as determined by the chairman of the meeting prior to the adjournment of such
adjourned meeting. Except as provided by Section 1305(e), notice of the
reconvening of any adjourned meeting shall be given as provided in Section
1302(a) not less than five days prior to the date on which the meeting is
scheduled to be reconvened. Notice of the reconvening of an adjourned meeting
shall state expressly the percentage, as provided above, of the principal amount
of the Outstanding Securities of such series and Tranches which shall constitute
a quorum.
Except as limited by Section 1202, any resolution presented to a
meeting or adjourned meeting duly reconvened at which a quorum is present as
aforesaid may be adopted only by the affirmative vote of the Holders of a
majority in aggregate principal amount of the Outstanding Securities of the
series and Tranches with respect to which such meeting shall have been called,
considered as one class; provided, however, that, except as so limited, any
resolution with respect to any action which this Indenture expressly provides
may be taken by the Holders of a specified percentage, which is less than a
majority, in principal amount of the Outstanding Securities of such series and
Tranches, considered as one class, may be adopted at a meeting or an adjourned
meeting duly reconvened and at which a quorum is present as aforesaid by the
affirmative vote of the Holders of such specified percentage in principal amount
of the Outstanding Securities of such series and Tranches, considered as one
class.
Any resolution passed or decision taken at any meeting of Holders or
Securities duly held in accordance with this Section shall be binding on all the
Holders of Securities of the series and Tranches with respect to which such
meeting shall have been held, whether or not present or represented at the
meeting.
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Section 1305. Attendance at Meetings; Determination of Voting Rights;
Conduct and Adjournment of Meetings.
(a) Attendance at a meeting of Holders of Securities may be in person
or by proxy; and, to the extent permitted by law, any such proxy shall remain in
effect and be binding upon any future Holder of the Securities with respect to
which it was given unless and until specifically revoked by the Holder or future
Holder of such Securities before being voted.
(b) Notwithstanding any other provisions of this Indenture, the Trustee
may make such reasonable regulations as it may deem advisable for any meeting of
Holders of Securities in regard to proof of the holding of such Securities and
of the appointment of proxies and in regard to the appointment and duties of
inspectors of votes, the submission and examination of proxies, certificates and
other evidence of the right to vote, and such other matters concerning the
conduct of the meeting as it shall deem appropriate. Except as otherwise
permitted or required by any such regulations, the holding of Securities shall
be proved in the manner specified in Section 104 and the appointment of any
proxy shall be proved in the manner specified in Section 104. Such regulations
may provide that written instruments appointing proxies, regular on their face,
may be presumed valid and genuine without the proof specified in Section 104 or
other proof.
(c) The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by Holders as provided in Section 1302 (b), in which case the Company
or the Holders of Securities of the series and Tranches calling the meeting, as
the case may be, shall in like manner appoint a temporary chairman. A permanent
chairman and permanent secretary of the meeting shall be elected by vote of the
Persons entitled to vote a majority in aggregate principal amount of the
Outstanding Securities of all series and Tranches represented at the meeting,
considered as one class.
(d) At any meeting each Holder or proxy shall be entitled to one vote
for each $1,000 principal amount of Securities held or represented by him;
provided, however, that no vote shall be cast or counted at any meeting in
respect of any Security challenged as not Outstanding and ruled by the chairman
of the meeting to be not Outstanding. The chairman of the meeting shall have no
right to vote, except as a Holder of a Security or proxy.
(e) Any meeting duly called pursuant to Section 1302 at which a quorum
is present may be adjourned from time to time by Persons entitled to vote a
majority in aggregate principal amount of the Outstanding Securities of all
series and Tranches represented at the meeting, considered as one class; and the
meeting may be held as so adjourned without further notice.
Section 1306. Counting Votes and Recording Action of Meeting.
The vote upon any resolution submitted to any meeting of Holders shall
be by written ballots on which shall be subscribed the signatures of the Holders
or of their representatives by proxy and the principal amounts and serial
numbers of the Outstanding Securities, of the series
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and Tranches with respect to which the meeting shall have been called, held or
represented by them. The permanent chairman of the meeting shall appoint two
inspectors of votes who shall count all votes cast at the meeting for or against
any resolution and who shall make and file with the secretary of the meeting
their verified written reports of all votes cast at the meeting. A record of the
proceedings of each meeting of Holders shall be prepared by the secretary of the
meeting and there shall be attached to said record the original reports of the
inspectors of votes on any vote by ballot taken thereat and affidavits by one or
more persons having knowledge of the facts setting forth a copy of the notice of
the meeting and showing that said notice was given as provided in Section 1302
and, if applicable, Section 1304. Each copy shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one such
copy shall be delivered to the Company, and another to the Trustee to be
preserved by the Trustee, the latter to have attached thereto the ballots voted
at the meeting. Any record so signed and verified shall be conclusive evidence
of the matters therein stated.
Section 1307. Action Without Meeting.
In lieu of a vote of Holders at a meeting as hereinbefore contemplated
in this Article, any request, demand, authorization, direction, notice, consent,
waiver or other action may be made, given or taken by Holders by written
instruments as provided in Section 104.
ARTICLE FOURTEEN
Immunity of Incorporators, Stockholders, Officers and Directors
Section 1401. Liability Solely Corporate.
No recourse shall be had for the payment of the principal of or
premium, if any, or interest, if any, on any Securities, or any part thereof, or
for any claim based thereon or otherwise in respect thereof, or of the
indebtedness represented thereby, or upon any obligation, covenant or agreement
under this Indenture, against any incorporator, stockholder, officer or
director, as such, past, present or future of the Company or of any predecessor
or successor corporation (either directly or through the Company or a
predecessor or successor corporation), whether by virtue of any constitutional
provision, statute or rule of law, or by the enforcement of any assessment or
penalty or otherwise; it being expressly agreed and understood that this
Indenture and all the Securities are solely corporate obligations, and that no
personal lability whatsoever, shall attach to, or be incurred by, any
incorporator, stockholder, officer or director, past, present or future, of the
Company or of any predecessor or successor corporation, either directly or
indirectly through the Company or any predecessor or successor corporation,
because of the indebtedness hereby authorized or under or by reason of any of
the obligations, covenants or agreements contained in this Indenture or in any
of the Securities or to be implied here from or therefrom, and that any such
personal liability is hereby expressly waived and released as a condition of,
and as part of the consideration for, the execution of this Indenture and the
issuance of the Securities.
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ARTICLE FIFTEEN
Holders' Lists and Reports by Trustee and Company
Section 1501. Company to Furnish Trustee Names and Addresses of Holders.
The Company shall furnish or cause to be furnished to the Trustee
(a) semi-annually, not more than 15 days after each Regular
Record Date for a series of Securities, a list, in such form as the
Trustee may reasonably require, containing all the information in the
possession or control of the Company, or any of its Paying Agents other
than the Trustee, as to the names and addresses of the Holders of
Securities of such series as of such Regular Record Date, and
(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request, a
list of similar form and content as of date not more than 15 days prior
to the time such list is furnished;
excluding from any such list names and addresses received by the Trustee in its
capacity as Security Registrar.
Section 1502. Preservation of Information; Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders (1) contained in the most recent
list furnished to the Trustee as provided in Section 1501 and (2) received by
the Trustee in any other capacity. The Trustee may (1) destroy any list
furnished to it as provided in Section 1501 upon receipt of a new list so
furnished, (2) destroy any information received by it as Paying Agent (if so
acting) hereunder upon delivering to itself as Trustee, not earlier than [August
15 or February 14], a list containing the names and addresses of the Holders
obtained from such information since the delivery of the next previous list, if
any, and (3) destroy any list delivered to itself as Trustee which was complied
from information received by it as Paying Agent (if so acting) hereunder upon
the receipt of a new list so delivered.
(b) If three or more Holders (herein referred to as "applicants") apply
in writing to the Trustee, and furnish to the Trustee reasonable proof that each
such applicant has owned a Security for a period of at least six months
preceding the date of such application, and such application states that the
applicants desire to communicate with other Holders with respect to their rights
under this Indenture or under the Securities and is accompanied by a copy of the
form of proxy or other communication which such applicants propose to transmit,
then the Trustee shall, within five Business Days after the receipt of such
application, at its election, either
(1) afford such applicants access to the information preserved at the time
by the
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Trustee in accordance with Section 1502(a), or
(2) inform such applicants as to the approximate number of
Holders whose names and addresses appear in the information preserved
at the time by the Trustee in accordance with Section 1502(a), and as
to the approximate cost of mailing to such Holders the form of proxy or
other communication, if any, specified in such application.
If the Trustee shall elect not to afford such applicants access to such
information, the Trustee shall, upon the written request of such applicants,
mail to each Holder whose name and address appear in the information preserved
at the time by the Trustee in accordance with Section 1502(a) a copy of the form
of proxy or other communication which is specified in such request, with
reasonable promptness after a tender to the Trustee by such applicants of the
material to be mailed and of payment, or provision for the payment, of the
reasonable expenses of mailing, unless within five days after such tender the
Trustee shall mail to such applicants and file with the Commission, together
with a copy of the material to be mailed, a written statement to the effect
that, in the opinion of the Trustee, such mailing would be contrary to the best
interest of the Holders or would be in violation of applicable law. Such written
statement shall specify the basis of such opinion. If the Commission, after
opportunity for a hearing upon the objections specified in the written statement
so filed, shall enter an order refusing to sustain any of such objections or if,
after the entry of an order sustaining one or more of such objections, the
Commission shall find, after notice and opportunity for hearing, that all the
objections so sustained have been met and shall enter an order so declaring, the
Trustee shall mail copies of such material to all such Holders with reasonable
promptness after the entry of such order and the renewal of such tender by such
applicants as aforesaid; otherwise the Trustee shall be relieved of any
obligation or duty to such applicants respecting their application.
(c) Every Holder of Securities, by receiving and holding the same,
shall be deemed to have agreed with the Company and the Trustee that neither the
Company nor the Trustee nor any agent of either of them shall be held
accountable by reason of the disclosure of any such information as to the names
and addresses of the Holders in accordance with Section 1502(b), regardless of
the source from which such information was derived, and that the Trustee shall
not be held accountable by reason of mailing any material pursuant to a request
made under Section 1502(b).
Section 1503. Reports by Trustees.
(a) The Trustees shall transmit to the Holders as hereinafter provided,
at stated intervals of not more than 12 months, a brief report with respect to
any of the following events which may have occurred within the previous 12
months (but if no such event has occurred within such period, no report need be
transmitted):
(1) any change in its eligibility and its qualifications under Section 908;
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(2) the creation of or any material change to a relationship specified in
paragraph (1) through (10) of Section 310(b) of the Trust Indenture Act;
(3) the character and amount of any advances (and if the Trustee elects so
to state, the circumstances surrounding the making thereof) made by the Trustee
(as such) which remain unpaid on the date of such report, and for the
reimbursement of which it claims or may claim a lien or charge, prior to that of
the Securities, on any property or funds held or collected by it as Trustee,
except that the Trustee shall not be required (but may elect) to report such
advances if such advances so remaining unpaid aggregate not more than 1/2 of 1%
of the principal amount of the Securities Outstanding on the date of such
report;
(4) any change to the amount, interest rate and maturity date of all other
Indebtedness owing by the Company (or by any other obligor on the Securities) to
the Trustee in its individual capacity, on the date of such report, with a brief
description of any property held as collateral security therefor, except an
indebtedness based upon a creditor relationship arising in any manner described
in Section 913(b)(2), (3), (4) or (6);
(5) any change to the property and funds, if any, physically in the
possession of the Trustee as such on the date of such report;
(6) any release, or release and substitution, of property subject to the
Lien of this Indenture (and the consideration therefor, if any) which it has not
previously reported;
(7) any additional issue of Securities which the Trustee has not previously
reported; and
(8) any action taken by the Trustee in the performance of its duties
hereunder which it has not previously reported and which in its opinion
materially affects the Securities or the Securities of any series, except action
in respect of a default, notice of which has been or is to be withheld by the
Trustee in accordance with Section 902.
(b) The Trustee shall transmit to the Holders, as provided in
subsection (c) of this Section, a brief report with respect to the character and
amount of any advances (and if the Trustee elects so to state, the circumstances
surrounding the making thereof) made by the Trustee (as such) since the date of
the last report transmitted pursuant to subsection (a) of this Section (or if no
such report has yet been so transmitted, since the date of execution of this
Indenture) for the reimbursement of which it claims or may claim a Lien or
charge, prior to that of the Securities, on property or funds held or collected
by it as Trustee and which it has not previously reported pursuant to this
subsection, except that the Trustee shall not be required (but may elect) to
report such advances if such advances remaining unpaid at any time aggregate 10%
or less of the principal amount of the Securities Outstanding at such time, such
report to be transmitted within 90 days after such time.
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(c) Reports pursuant to this Section shall be transmitted by mail;
(1) to all Holders, as their names and addresses appear in
the Security Register; and
(2) to such Holders as have, within two years preceding such
transmission, filed their names and addresses with the Trustee for that
purpose; and
(3) except in the case of reports pursuant to subsection (b)
of this Section, to each Holder whose name and address is preserved at
the time by the Trustee, as provided in Section 1502(a).
(d) A copy of each such report shall, at the time of such transmission
to Holders, be filed by the Trustee with each stock exchange upon which any
Securities are listed, with the Commission and with the Company. The Company
will promptly notify the Trustee when any Securities are listed on any stock
exchange.
Section 1504. Reports by Company.
The Company shall:
(a) file with the Trustee, within 45 days after the Company is
required to file the same with the Commission, copies of the annual
reports and of the information, documents and other reports (or copies
of such portions of any of the foregoing as the Commission may from
time to time by rules and regulations prescribe) which the Company may
be required to file with the Commission pursuant to Section 13 or
Section 15(d) of the Exchange Act; or, if the Company is not required
to file information, documents or reports pursuant to either of said
Sections, then it shall file with the Trustee and the Commission, in
accordance with the rules and regulations prescribed from to time by
the Commission, such of the supplementary and periodic information,
documents and reports which may be required pursuant to Section 13 of
the Exchange Act in respect of a security listed and registered on a
national securities exchange as may be prescribed from time to time in
such rules and regulations;
(b) file with the Trustee and the Commission, in accordance
with rules and regulations prescribed from time to time by the
Commission, such additional information, documents and reports with
respect to compliance by the Company with the conditions and covenants
of this Indenture as may be required from time to time by such rules
and regulations; and
(c) transmit, within 30 days after the filing thereof with the
Trustee, to the Holders, in the manner and to the extent provided in
Section 1503(c) with respect to 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.
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.
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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(degree) COMMUNICATIONS COMPANY
By:
Title:
(SEAL)
Attest:
Title:
CITIBANK, N.A., Trustee
By:
Title:
(SEAL)
Attest:
Title:
<PAGE>
[FORM OF DEBT SECURITY]
[Unless this certificate is presented by an authorized representative
of The Depository Trust Company (the "Depositary") to the Company or its agent
for registration of transfer, exchange or payment, and any certificate to be
issued is registered in the name of Cede & Co. or such other such name as
requested by an authorized representative of the Depositary and any amount
payable thereunder is made payable to Cede & Co. or such other name, ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL since the registered owner hereof, Cede & Co., has an interest
herein.
Unless and until this Security is exchanged in whole or in part for
certificated Securities registered in the names of the various beneficial
holders hereof as then certified to the Company by the Depositary or a successor
depositary, this Security may not be transferred except as a whole by the
Depositary to a nominee of the Depositary or by a nominee of the Depositary to
the Depositary or another nominee of the Depositary or by the Depositary or any
such nominee to successor depositary or a nominee of such successor depositary.
This Security may be exchanged for certificated Securities registered
in the names of the various beneficial owners hereof only if (a) the Depositary
is at any time unwilling or unable to continue as depositary and as a successor
depositary is not appointed by the company within 90 days, or (b) the Company
elects to issue certificated Securities to beneficial owners (as certified to
the Company by the Depositary or a successor depositary) of all Securities of
the series designated below.]
<PAGE>
[FACE OF SECURITY]
360(degree) COMMUNICATIONS COMPANY
[ ]% Senior Note Due [ ]
No. _______________ Principal Amount
$--------------
CUSIP
360(degree) COMMUNICATIONS COMPANY, a corporation duly organized and
existing under the laws of the State of Delaware (herein called the "Company")
which term includes any successor corporation under the Indenture referred to on
the reverse hereof), for value received, hereby promises to pay to
, or
registered assigns, the principal sum of
Dollars
on [ ], and to pay interest thereon from [ ] or from the most recent Interest
Payment Date to which interest has been paid or duly provided for, semi-annually
in arrears on [ ] and [ ] in each year (each, an "Interest Payment Date"),
commencing on [ ], and at Maturity, at the rate of [ ]% (the "Interest Rate")
per annum, until the principal hereof is paid or duly provided for. Each payment
of interest in respect of an Interest Payment Date shall include interest
accrued through the day prior such Interest Payment Date. The interest so
payable, and paid or duly provided for, on any Interest Payment Date shall, as
provided in the Indenture, be paid to the Person in whose name this Security (or
one or more Predecessor Securities) is registered at the close of business on
the Regular Record Date for such interest, which shall be [ ] or [ ] (whether or
not a Business Day), as the case may be, next preceding such Interest Payment
Date. Interest shall be computed on the basis of a 360-day year consisting of
twelve 30-day months.
Notwithstanding the foregoing, interest payable at Maturity shall be
paid to the Person to whom principal shall be paid. Except as otherwise provided
in the Indenture, any such interest not so paid or duly provided for shall
forthwith cease to be payable to the Holder on the related Regular Record Date
and may either be paid to the Person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest to be fixed by the
Trustee, notice whereof shall be given to Holders of Securities of this series
not less than 10 days prior to such Special Record Date, or be paid at any time
in any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities of this series may be listed, and
upon such notice as may be required by such exchange, all as more fully provided
in the Indenture.
<PAGE>
To the extent lawful, the Company shall pay interest on (i) any overdue
principal of and premium, if any, on this Security, at the interest rate borne
on this Security, plus 1% per annum, and (ii) Defaulted Interest (without regard
to any applicable grace period), at the same rate. The Company's obligation
pursuant to the previous sentence shall apply whether such overdue amount is due
at its Stated Maturity, as a result of the Company's obligations pursuant to
Section 607 or Section 1001 of the Indenture, or otherwise.
If any Interest Payment Date, any applicable Redemption Date, any
Change of Control Payment Date, any Purchase Date or the Stated Maturity Date
shall not be a Business Day (as hereinafter defined), payment of the amount due
on this Security on such date may be made on the next succeeding Business Day;
and, if such payment is made or duly provided for on such Business Day, no
interest shall accrue on such amounts for the period from and after such
Interest Payment Date, applicable Redemption Date, any Change of Control Payment
Date, Purchase Date or Stated Maturity Date, as the case may be, to such
Business Day.
Payment of the principal of and premium, if any, on this Security and
interest hereon at Maturity shall be made upon presentation hereof at the office
of Citibank, N.A. in New York, New York or at such other office or agency as may
be designated for such purpose by the Company from time to time. Payment of
interest, if any, on this Security (other than interest at Maturity) shall be
made by check mailed to the address of the Person entitled thereto as such
address shall appear in the Security Register. Payment of the principal of and
premium, if any, and interest, if any, on this Security, as aforesaid, shall be
made in such coin or currency of the United States of America as at the time of
payment shall be legal tender for the payment of public and private debts.
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[REVERSE OF SECURITY]
This Security is one of a duly authorized issue of unsecured senior
securities of the Company (herein called the "Securities"), issued and issuable
in one or more series under an Indenture, dated as of [ ], 1997 (such Indenture
as originally executed and delivered and as hereafter supplemented or amended,
together with any constituent instruments establishing the terms of particular
Securities, being herein called the "Indenture"), between the Company and
Citibank N.A., as trustee (herein called the "Trustee") which term includes any
successor trustees under the Indenture), to which Indenture and all indentures
supplemental thereto reference is hereby made for a statement of the respective
rights, limitations of rights, duties and immunities thereunder of the Company,
the Trustee and the Holders of the Securities and of the terms upon which the
Securities are, and are to be, authenticated and delivered. The acceptance of
this Security shall be deemed to constitute the consent and agreement of the
Holder hereof to all of the terms and provisions of the Indenture. This Security
is one of the series designated on the face hereof. All terms used in this
Security which are not defined herein shall have the meaning assigned to them in
the Indenture.
Upon the occurrence of a Change of Control Triggering Event with
respect to the Securities of this series, each Holder of Securities of this
series shall have the right to require the Company to purchase such Holder's
Securities, in whole or in part, in principal amount that is an integral
multiple of $1,000, pursuant to a Change of Control Offer, at a purchase price
in cash equal to 101% of the principal amount thereof on any Change of Control
Payment Date plus accrued and unpaid interest, if any, to the Change of Control
Payment Date.
Within 30 calendar days following any Change of Control Triggering
Event with respect to the Securities of this series, the Company shall send, or
cause to be sent, by first-class mail, postage prepaid, a notice regarding the
Change of Control Offer to the Trustee and each Holder of Securities of this
series. The Holder of this Security may elect to have this Security or a portion
hereof in an authorized denomination purchased by completing the form entitled
"Option of Holder to Elect Purchase" appearing below and tendering this Security
pursuant to the Change of Control Offer. Unless the Company defaults in the
payment of the Change of Control Purchase Price with respect thereto, all
Securities or portions thereof accepted for payment pursuant to the Change of
Control Offer will cease to accrue interest from and after the Change of Control
Payment Date.
If at any time the Company or any Restricted Subsidiary engages in any
Asset Sale, as a result of which the aggregate amount of Excess Proceeds exceeds
$25 million, the Company shall, within five Business Days of the date the amount
of Excess Proceeds exceeds $25 million, use the then existing Excess Proceeds to
make an offer to purchase from all Holders, on a pro rata basis, Securities in
an aggregate principal amount equal to the maximum principal amount that may be
-3-
<PAGE>
purchased out of the then-existing Excess Proceeds, at a purchase price in cash
equal to 100% of the principal amount thereof on any Purchase Date plus accrued
and unpaid interest thereon, if any, to the Purchase Date. Upon completion of a
Prepayment Offer (including payment for accepted Securities), any surplus Excess
Proceeds that were the subject of such offer shall cease to be Excess Proceeds,
and the Company may then use such amounts for general corporate purposes.
Within five Business Days of the date the amount of Excess Proceeds
exceeds $25 million, the Company shall send, or cause to be sent, by first-class
mail, postage prepaid, a notice regarding the Prepayment offer to each Holder of
Securities. 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 Prepayment Offer. Unless the Company defaults in the
payment of the purchase price with respect thereto, all Securities or portions
thereof selected for payment pursuant to the Prepayment Offer will cease to
accrue interest from and after the Purchase Date.
[Provisions for redemption at the option of the Company or pursuant to a
sinking fund or analogous provisions or at the option of the Holder to be
inserted here.]
[Notice of redemption [(other than at the election of the Holder)]
shall be given by mail to Holders of Securities, not less than 30 days nor more
than 60 days prior to the date fixed for redemption, all as provided in the
Indenture. As provided in the Indenture, notice of redemption at the election of
the Company as aforesaid may state that such redemption shall be conditional
upon the receipt by the Trustee of money sufficient to pay the principal of and
premium, if any, and interest, if any, on this Security on or prior to the date
fixed for such redemption; a notice of redemption so conditioned shall be of no
force or effect if such money is not so received and, in such event, the Company
shall not be required to redeem this Security.
In the event of redemption of this Security in part only, a new
Security or Securities of this series, of like tenor, for the unredeemed portion
hereof will be issued in the name of the Holder hereof upon the cancellation
hereof.]
If an Event of Default with respect to Securities of this series shall
occur and be continuing, the principal of this Security may be declared due and
payable in any manner and with the effect provided in the Indenture.
The Indenture permits, with certain exceptions as thereby provided, the
Trustee to enter into one or more supplemental indentures for the purpose of
adding any provisions to, or changing in any manner or eliminating any of the
provisions of, the Indenture with the consent of the Holders of not less than a
majority in aggregate principal amount of the Securities of all series then
Outstanding under the Indenture, considered as one class; provided, however,
that if there shall be Securities of more than one series Outstanding under the
Indenture and if a proposed supplemental indenture shall directly affect the
rights of the Holders of Securities of one or more,
-4-
<PAGE>
but less than all, of such series, then the consent only of the Holders of a
majority in aggregate principal amount of the Outstanding Securities of all
series so directly affected, considered as one class, shall be required; and
provided, further, that if the Securities of any series shall have been issued
in more than one Tranche and if the proposed supplemental indenture shall
directly affect the rights of the Holders of Securities of one or more, but less
than all, of such Tranches, then the consent only of the Holders of a majority
in aggregate principal amount of the Outstanding Securities of all Tranches so
directly affected, considered as one class, shall be required. The Indenture
also contains provisions permitting the Holders of specified percentages in
principal amount of the Securities then Outstanding, on behalf of the Holders of
all Securities, to waive compliance by the Company with certain provisions of
the Indenture and certain past defaults under the Indenture and their
consequences. Any such content or waiver by the Holder of this Security shall be
conclusive and binding upon such Holder and upon all future Holders of this
Security and of any Security issued upon the registration of transfer hereof or
in exchange therefor or in lieu hereof, whether or not notation of such consent
or waiver is made upon this Security.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of and premium, if any, and
interest, if any, on this Security at the times, place and rate, in the coin or
currency, and in the manner, herein prescribed.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the
office of Citibank N.A. in New York, New York or other such office or agency as
may be designated by the Company from time to time, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Securities of
this series of authorized denominations and of like tenor and aggregate
principal amount, will be issued to the designated transferee or transferees.
The Securities of this series are issuable only as registered
Securities, without coupons, in denominations of $[________] and any amount in
excess thereof that is an integral multiple of $1000. As provided in the
Indenture and subject to certain limitations therein set forth, Securities of
this series are exchangeable for a like aggregate principal amount of Securities
of this series, of any authorized denominations, as requested by the Holder
surrendering the same, and of like tenor upon surrender of the Security or
Securities to be exchanged at the office of Citibank N.A. in New York, New York
or other such office or agency as may be designated by the Company from time to
time.
The Company shall not be required to (a) register the transfer of or
exchange Securities of this series during a period of 15 days immediately
preceding the date notice is given identifying the serial numbers of the
Securities of this series called for redemption or (b) to register the transfer
of or exchange any Security so selected for redemption in whole or in part,
except the unredeemed portion of any Security being redeemed in part.
-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.
As used herein, "Business Day" means any day, other than a Saturday or
Sunday, which is not a day on which banking institutions or trust companies in
the State of New York or the city in which is located any office or agency
maintained for the purpose of principal of or premium, if any, or interest, if
any, on this Security, are authorized or required by law, regulation or
executive order to remain closed. All other terms used in this Security which
are defined in the Indenture shall have the meanings assigned to them in the
Indenture.
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.
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<PAGE>
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated:
360(degree) COMMUNICATIONS COMPANY
By:
Countersigned:
By:
This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
Dated:
Citibank N.A.,
as Trustee
By:
Authorized Signatory
-7-
<PAGE>
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers
unto
[please insert social security or other
identifying number of assignee]
[please print or type name and address of assignee]
the within Security of 360(degree) COMMUNICATIONS COMPANY and does hereby
irrevocably constitute and appoint , Attorney, to transfer said Security on the
books of the within-mentioned Company, with full power of substitution in the
premises.
Dated:
Notice: The
signature to this
assignment must
correspond with
the name as
written upon the
face of the
Security in every
particular without
alteration or
enlargement or any
change whatsoever.
-8-
<PAGE>
OPTION OF HOLDER TO ELECT PURCHASE
(check as appropriate)
[] In connection with the Change of Control Offer made pursuant to Section
1001 of the Indenture, the undersigned hereby elects to have
[] the entire principal amount; or
[] $ ($1,000 in principal amount or an integral multiple thereof) of
- ----------------- this Security
repurchased by the Company. The undersigned hereby directs the Trustee
or Paying Agent to pay it or an amount in cash equal to 101% of the
principal amount indicated above plus accrued and unpaid interest
thereon, if any, to the Change of Control Payment Date.
[] In connection with the Prepayment Offer made pursuant to Section 607 of
the Indenture, the undersigned hereby elects to have
[] the entire principal amount; or
[] $ ($1,000 in principal amount or an integral multiple thereof) of
- ----------------- this Security
repurchased by the Company. The undersigned hereby directs the Trustee
or Paying Agent to pay it or an amount in cash equal to 100% of the
principal amount indicated above plus accrued and unpaid interest
thereon, if any, to the Purchase Date.
Dated:
Signature of Holder Signature Guaranteed:
Member of Securities Transfer Agent
Medallion Program
NOTICE: The signature to the foregoing must correspond to the name as written
upon the face of this Security in every particular, without alteration or any
change whatsoever.
<PAGE>
360(degree) COMMUNICATIONS COMPANY
and
As Warrant Agent
Warrant Agreement
Dated as of
[OPTIONS REPRESENTED BY BRACKETED OR BLANK SECTIONS HEREIN SHALL BE
DETERMINED IN CONFORMITY WITH THE APPLICABLE PROSPECTUS SUPPLEMENT
OR SUPPLEMENTS]
<PAGE>
TABLE OF CONTENTS
ARTICLE I
ISSUANCE, EXECUTION AND COUNTERSIGNATURE
OF WARRANT CERTIFICATES
Section 1.1. Issuance of Warrant Certificates .......................... 1
Section 1.2. Form of Warrant Certificates .............................. 2
Section 1.3. Execution and Countersignature of Warrant Certificates .... 2
Section 1.4. Temporary Warrant Certificates ............................ 3
Section 1.5. Payment of Taxes .......................................... 3
Section 1.6. Definition of Holder ...................................... 3
ARTICLE II
WARRANT PRICE, DURATION AND EXERCISE OF WARRANTS
Section 2.1 Warrant Price .............................................. 4
Section 2.2. Duration of Warrants ...................................... 4
Section 2.3. Exercise of Warrants ...................................... 4
ARTICLE III
[REGISTRATION], EXCHANGE, TRANSFER
AND SUBSTITUTION OF WARRANT CERTIFICATES
Section 3.1. [Registration], Exchange and Transfer of Warrant Certificates . 6
Section 3.2. Mutilated, Destroyed, Lost or Stolen Warrant Certificates ..... 7
Section 3.3. Persons Deemed Holders ........................................ 7
Section 3.4. Cancellation of Warrant Certificates .......................... 8
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<PAGE>
ARTICLE IV
OTHER PROVISIONS RELATING TO RIGHTS OF
HOLDERS OF WARRANT CERTIFICATES
Section 4.1. No Rights as Holders of Warrant Securities Conferred
by Warrants or Warrant Certificates ...................................... 8
Section 4.2. Holder of Warrant Certificates May Enforce Rights ............ 8
ARTICLE V
CONCERNING THE WARRANT AGENT
Section 5.1. Warrant Agent ................................................ 9
Section 5.2. Condition of Warrant Agent's Obligations ..................... 9
Section 5.3. Resignation, Removal and Appointment of Successor ........... 11
Section 5.4. Compliance with Applicable Laws ............................. 12
ARTICLE VI
MISCELLANEOUS
Section 6.1. Modification, Supplementation or Amendment .................. 13
Section 6.2. Consolidations and Mergers of the Company and Sales,
Leases and Conveyances Permitted Subject to Certain Conditions ........ 13
Section 6.3. Rights and Duties of Successor Corporation .................. 13
Section 6.4. Notices and Demands to the Company and Warrant Agent ........ 14
Section 6.5. Governing Law ............................................... 14
Section 6.6. Addresses ................................................... 14
Section 6.7. Notices to Holders of Warrant Certificates .................. 14
Section 6.8. Delivery of Prospectus ...................................... 15
Section 6.9. Obtaining of Governmental Approvals ......................... 15
Section 6.10. Persons Having Rights Under Warrant Agreement .............. 15
Section 6.11. Headings ................................................... 15
Section 6.12. Counterparts ............................................... 15
Section 6.13. Inspection of Agreement .................................... 15
Exhibit A Form of Warrant Certificate
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<PAGE>
THIS AGREEMENT, dated as of [ , 19 ], between 360(degree)
COMMUNICATIONS COMPANY, a corporation duly organized and existing under the laws
of the State of Delaware (the "Company"), and ,a [corporation] [state banking
association] [national banking association] organized and existing under the
laws of [ ], as Warrant Agent (the "Warrant Agent").
WHEREAS, the Company has entered into an Indenture, dated as of [ ],
1997 (the "Indenture"), with Citibank N.A., a national banking institution
organized under the laws of the State of New York, as trustee (such trustee, and
any successors to such trustee, herein called the "Trustee"), providing for the
issuance from time to time of its unsecured senior debt securities, notes or
other evidences of indebtedness, to be issued in one or more series as provided
in the Indenture.
WHEREAS, the Company proposes to sell [If Offered Debt Securities and
Warrants -- Title of Debt Securities being offered] (the "Offered Debt
Securities") with warrant certificates (such warrant certificates and other
warrant certificates issued pursuant to this agreement herein called the
"Warrant Certificates") evidencing one or more warrants (the "Warrants" or,
individually, a "Warrant") representing the right to purchase [Title of Debt
Securities purchasable through exercise of Warrants] (the "Warrant Securities");
and
WHEREAS, the Company desires the Warrant Agent to act on behalf of the
Company, and the Warrant Agent is willing to so act, in connection with the
issuance, exchange, exercise and placement of the Warrant Certificates and the
terms and conditions on which they may be issued, exchanged, exercised and
replaced.
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements herein contained, the parties hereto agree as follows:
ARTICLE I
ISSUANCE, EXECUTION AND COUNTERSIGNATURE
OF WARRANT CERTIFICATES
Section 1.1. Issuance of Warrant Certificates.
[If Warrants alone -- Upon issuance, each Warrant Certificate shall
evidence one or more Warrants.] [If Offered Debt Securities and Warrants --
Warrant Certificates shall be [initially] issued in units with the Offered Debt
Securities and shall [not] be separately transferable [before
, 19 (the "Detachable Date"). The Warrant Certificate or
Certificates included in each such unit shall evidence an aggregate of Warrants
for each $ principal amount of Offered Debt Securities included in such unit.]
Each Warrant evidenced thereby shall represent the right, subject to the
provisions contained herein and therein, to purchase from the Company Warrant
Securities in the aggregate principal amount of $ .
<PAGE>
Section 1.2. Form of Warrant Certificates.
The Warrant Certificates [including the Form[s] of Exercise [and
Assignment] to be set forth on the reverse thereof] shall be in substantially
the form set forth in Exhibit A hereto with such appropriate insertions,
omissions, substitutions and other variations as are required or permitted by
this Agreement, shall be printed, lithographed or engraved on steel engraved
borders (or in any other manner determined by the officer executing such Warrant
Certificates) 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 any law or any rule or regulation made pursuant thereto
or with any rule or regulation of any securities exchange on which the Warrant
Certificates may be listed or as may, consistently herewith, be determined by
the officers executing such Warrant Certificates, as evidenced by their
execution of the Warrant Certificates.
Section 1.3. Execution and Countersignature of Warrant Certificates.
The Warrant Certificates shall be executed on behalf of the Company by
its [ ] or any [ ], manually or by facsimile signature, under its
corporate seal reproduced thereon attested to by its Secretary or its Assistant
Secretary, either manually or by facsimile signature. Typographical and other
minor errors or defects in any such reproduction of the seal or any such
signature shall not affect the validity or enforceability of the Warrant
Certificate that has been duly executed by the Company and authenticated by the
Warrant Agent.
Warrant Certificates evidencing the right to purchase an aggregate
principal amount not exceeding $ of Warrant Securities (except as provided in
Sections 1.4, 2.3(c), 3.1 and 3.2) may be executed by the Company and delivered
to the Warrant Agent upon the execution of this Warrant Agreement or from time
to time thereafter. The Warrant Agent shall, upon receipt of Warrant
Certificates duly executed on behalf of the Company, authenticate Warrant
Certificates evidencing Warrants representing the right to purchase up to $
aggregate principal amount of Warrant Securities and shall deliver such Warrant
Certificates to or upon the order of the Company. Subsequent to such original
issuance of the Warrant Certificates, the Warrant Agent shall authenticate a
Warrant Certificate only if the Warrant Certificate is issued in exchange or
substitution for one or more previously authenticated Warrant Certificates [if
registered Warrants -- or in connection with their transfer], as hereinafter
provided.
Each Warrant Certificate shall be dated the date of its authentication
by the Warrant Agent.
No Warrant Certificate shall be entitled to any benefit under this
Agreement or be valid or obligatory for any purpose, and no Warrant evidenced
thereby shall be exercisable, until such Warrant Certificate has been
authenticated by the manual signature of a duly authorized representative of the
Warrant Agent. Such signature by the Warrant Agent upon any Warrant Certificate
executed by the Company shall be conclusive evidence, and the only evidence,
that the Warrant Certificate so authenticated has been duly issued hereunder.
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<PAGE>
In case any officer of the Company who shall have signed the Warrant
Certificate, either manually or by facsimile signature, shall cease to be such
officer before the Warrant Certificate so signed shall have been countersigned
and delivered by the Warrant Agent to the Company or delivered by the Company,
such Warrant Certificate nevertheless may be countersigned and delivered as
though the person who signed such Warrant Certificate had not ceased to be such
officer of the Company; and the Warrant Certificate may be signed on behalf of
the Company by such persons as, at the actual date of execution of such Warrant
Certificate, shall be the proper officers of the Company, although at the date
of the execution of this Agreement any such person was not such an officer.
Section 1.4. Temporary Warrant Certificates.
Pending the preparation of definitive Warrant Certificates, the Company
may execute, and upon the order of the Company the Warrant Agent shall
authenticate and deliver, temporary Warrant Certificates which are printed,
lithographed, typewritten, mimeographed or otherwise produced substantially of
the tenor of the definitive Warrant Certificates in lieu of which they are
issued and with such appropriate insertions, omissions, substitutions and other
variations as the officers executing such Warrant Certificates may determine, as
evidenced by their execution of such Warrant Certificates.
If temporary Warrant Certificates are issued, the Company will cause
definitive Warrant Certificates to be prepared without unreasonable delay. After
the preparation of definitive Warrant Certificates, the temporary Warrant
Certificates shall be exchangeable for definitive Warrant Certificates upon
surrender of the temporary Warrant Certificates at the corporate trust office of
the Warrant Agent [or ], without charge to the Holder. Upon surrender for
cancellation of any one or more temporary Warrant Certificates the Company shall
execute and the Warrant Agent shall authenticate and deliver in exchange
therefor definitive Warrant Certificates representing the same aggregate number
of Warrants. Until so exchanged, the temporary Warrant Certificates shall in all
respects be entitled to the same benefits under this Agreement as definitive
Warrant Certificates.
Section 1.5. Payment of Taxes.
The Company will pay all stamp taxes and other duties, if any, to
which, under the laws of the United States of America or any state or political
subdivision thereof, this Agreement or original issuance of the Warrant
Certificates may be subject.
Section 1.6. Definition of Holder.
The term "Holder" as used herein shall mean [If Offered Debt Securities
and Warrants which are not immediately detachable --, prior to the Detachable
Date, the [bearer] [registered owner] of the Offered Debt Security to which such
Warrant Certificate was initially attached, and, after such Detachable Date,]
[If bearer Warrants -- the bearer of such Warrant Certificate] [If
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<PAGE>
registered Warrants -- the person in whose name at the time such Warrant
Certificate shall be registered upon the books to be maintained by the Warrant
Agent for that purpose pursuant to Section 3.1.] [If Offered Debt Securities and
Warrants which are not immediately detachable -- Prior to the Detachable Date,
the Company will, or will cause the registrar of the Offered Debt Securities to
make available to the Warrant Agent current information as to Holders of the
Offered Debt Securities.]
ARTICLE II
WARRANT PRICE, DURATION AND EXERCISE OF WARRANTS
Section 2.1. Warrant Price
During the period specified in Section 2.2, each Warrant shall entitle
the Holder thereof, subject to the provisions of this Agreement, to purchase
from the Company the principal amount of Warrant Securities stated in the
Warrant Certificate at the exercise price of % of the principal amount thereof
[plus accrued amortization, if any, of the original issue discount of the
Warrant Securities] [plus accrued interest, if any, from the most recent date
from which interest shall have been paid on the Warrant Securities] [plus
accrued interest, if any, from the most recent date from which interest shall
have been paid on the Warrant Securities or, if no interest shall have been paid
on the Warrant Securities, from , 19 ].
[In each case, the original issue discount ($ for each $1,000 principal
amount of Warrant Securities) will be amortized at a % annual rate, computed on
a[n] [semi-]annual basis [using a 360-day year consisting of twelve 30-day
months].] Such exercise price of each Warrant is referred to in this Agreement
as the "Exercise Price".
Section 2.2. Duration of Warrants.
Any Warrant evidenced by a Warrant Certificate may be exercised at any
time, as specified herein, on or after [the date thereof] [ , 19 ] and at or
before the close of business on , 19 (the "Expiration Date"). Each Warrant not
exercised at or before the close of business on the Expiration Date shall become
void, and all rights to the Holder of the Warrant Certificate evidencing such
Warrant under this Agreement or otherwise shall cease.
Section 2.3. Exercise of Warrants.
(a) During the period specified in Section 2.2, any whole number of
Warrants may be exercised by surrendering the Warrant Certificate evidencing
such Warrants at the place or at the places set forth in the Warrant
Certificate, with the purchase form set forth in the Warrant Certificate duly
executed, accompanied [by payment in full, in lawful money of the United States
of America], [in cash or by certified check or official bank check in New York
Clearing House funds] [by surrender of the [specific aggregate amount of
[identified securities]] [by bank wire
- 4 -
<PAGE>
transfer in immediately available funds], of the Exercise Price for each Warrant
exercised. The date on which payment in full of the Exercise Price for a Warrant
and the Warrant Certificate, with the purchase form set forth therein duly
executed, are received by the Warrant Agent shall be deemed to be the date on
which such Warrant is exercised. The Warrant Agent shall deposit all funds
received by it as payment for the exercise of Warrants to the account of the
Company maintained with it for such purpose on the date on which such Warrant is
deemed exercised and shall advise the Company by telephone and in writing, by
facsimile transmission or otherwise, at the end of each day on which such a
payment is received of the amount so deposited to its account. The Warrant Agent
shall promptly confirm such telephonic advice to the Company in writing.
(b) The Warrant Agent shall from time to time, as promptly as
practicable after the exercise of any Warrants in accordance with the terms and
conditions of this Agreement and the Warrant Certificates, advise the Company
and the Trustee of:
(i) the number of Warrants so exercised,
(ii) the instructions of each Holder of the Warrant Certificates evidencing
such Warrants with respect to delivery of the Warrant Securities to which such
Holder is entitled upon such exercise, and instructions of such Holder as to
delivery of Warrant Certificates evidencing the balance, if any, of the Warrants
remaining after such exercise, and
(iii) such other information as the Company or the Trustee shall reasonably
require.
(c) As soon as practicable after the exercise of any Warrants, the
Company shall issue, pursuant to the Indenture, in authorized denominations, to
or upon the order of the Holder of the Warrant Certificate evidencing such
Warrants, the Warrant Security or Warrant Securities to which such Holder is
entitled in [fully registered form registered in such name or names as may be
directed by such Holder] [bearer form]; and, if fewer than all of the Warrants
evidenced by such Warrant Certificate were exercised the Company shall execute
and an authorized officer of the Warrant Agent shall manually authenticate and
deliver to the Holder a new Warrant Certificate evidencing the number of
Warrants remaining unexercised. [Unless otherwise instructed by the Company,
Warrant Securities in bearer form shall be delivered to or upon the order of the
Holder of such Warrant Certificate only outside the United States, its
territories and possessions and all areas subject to its jurisdiction.]
(d) The Company shall not be required to pay any stamp or other tax or
other governmental charge required to be paid in connection with any transfer
involved in the issue of the Warrant Securities upon the order of the Holder of
the Warrant Certificate evidencing the Warrant which was exercised; and in the
event that any such transfer is involved, the Company shall not be required to
issue or deliver any Warrant Securities pursuant to Section 2.3(c) until
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<PAGE>
such tax or other charge shall have been paid or it has been established to the
Company's satisfaction that no such tax or other charge is due.
ARTICLE III
[REGISTRATION], EXCHANGE, TRANSFER AND
SUBSTITUTION OF WARRANT CERTIFICATES
Section 3.1. [Registration], Exchange, and Transfer of Warrant Certificates.
[If registered Warrants -- the Warrant Agent shall keep, at its
corporate trust office [and at ], books in which, subject to such reasonable
regulations as it may prescribe, it shall register Warrant Certificates and
transfers of outstanding Warrant Certificates.]
[If Offered Debt Securities and Warrants which are not immediately
detachable -- Prior to the Detachable Date, a Warrant Certificate may be
exchanged [or transferred] only together with the Offered Debt Security to which
such Warrant Certificate was initially attached, and only for the purpose of
effecting, or in conjunction with, an exchange or transfer of such Offered Debt
Security. Additionally, on or prior to the Detachable Date, each [transfer or]
exchange of an Offered Debt Security [on the register of the Offered Debt
Securities] shall operate also to transfer or exchange the Warrant Certificate
or Certificates to which such Offered Debt Security was initially attached.
After the Detachable Date, upon] [If Offered Debt Securities and Warrants which
are immediately detachable or if the Warrants alone --Upon] surrender at the
place or places set forth in the Warrant Certificate or Warrant Certificates
properly endorsed [or accompanied by appropriate instruments of transfer and
accompanied by written instructions for [transfer or] exchange, all in form
reasonably satisfactory to the Company and the Warrant Agent, such Warrant
Certificates may be exchanged for other Warrant Certificates [If registered
Warrants -- or may be transferred in whole or in part]] [If bearer Warrants --
the Warrant Certificates, and all rights thereunder, may be exchanged by
delivery to the Company and the Warrant Agent may treat the bearer thereof as
the owner for all purposes]; provided that Warrant Certificates issued in
exchange for [or upon transfer of] surrendered Warrant Certificates shall
evidence the same aggregate number of Warrants as the Warrant Certificates so
surrendered. No service charge shall be made for any exchange [or transfer] of
Warrant Certificates, but the Company may require payment of a sum sufficient to
cover any stamp or other tax or governmental charge that may be imposed in
connection with any such exchange [or transfer]. Whenever any Warrant
Certificates are so surrendered for exchange [or transfer], the Company shall
execute and an authorized officer of the Warrant Agent shall manually
countersign and deliver to the person or persons entitled thereto a Warrant
Certificate or Warrant Certificates as so requested. The Warrant Agent shall not
be required to effect any exchange [or transfer] which would result in the
issuance of a Warrant Certificate evidencing a fraction of a Warrant or a number
of full Warrants and a fraction of a Warrant. All Warrant Certificates issued
upon any exchange [or transfer] of Warrant Certificates shall evidence the same
obligations, and be entitled to the same benefits under this Agreement, as the
Warrant Certificate surrendered for such exchange [or transfer].
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<PAGE>
Section 3.2. Mutilated, Destroyed, Lost or Stolen Warrant Certificates.
If any mutilated Warrant Certificate is surrendered to the Warrant
Agent, the Company shall execute and an officer of the Warrant Agent shall
manually countersign and deliver in exchange therefor a new Warrant Certificate
of like tenor representing a like number of unexercised Warrants and bearing a
number not contemporaneously outstanding.
If there shall be delivered to the Company and the Warrant Agent (i)
evidence to their satisfaction of the destruction, loss or theft of any Warrant
Certificate and of the ownership thereof, (ii) such security or indemnity as may
be required by them to save each of them and any agent of either of them
harmless and (iii) funds sufficient to cover any cost or expense to the Company
(including any fees charged by the Warrant Agent) relating to the issuance of a
new Warrant Certificate, then, in the absence of notice to the Company or the
Warrant Agent that such Warrant Certificate has been acquired by a bona fide
purchaser, the Company shall execute and upon its request an officer of the
Warrant Agent shall manually countersign and deliver, in lieu of any such
destroyed, lost or stolen Warrant Certificate, a new Warrant Certificate of like
tenor representing a like number of unexercised Warrants and bearing a number
not contemporaneously outstanding.
In case the Warrants evidenced by any such mutilated, destroyed, lost
or stolen Warrant Certificate have been exercised or have been or are about to
be deemed to be exercised, the Company in its discretion may, instead of issuing
a new Warrant Certificate, treat the same as if it had received written
irrevocable notice of exercise in good form in respect thereof, as provided
herein.
Every new Warrant Certificate issued pursuant to this Section in lieu
of any mutilated, destroyed, lost or stolen Warrant Certificate shall constitute
an original additional contractual obligation of the Company, whether or not the
mutilated, destroyed, lost or stolen Warrant Certificate shall be enforceable at
any time by anyone, and shall be entitled to all of the benefits of this
Agreement equally and proportionately with any and all other Warrant
Certificates 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
Warrant Certificates.
Section 3.3. Persons Deemed Holders.
[If Offered Debt Securities and Warrants which are not immediately
detachable -- Prior to the Detachable Date, the Company, the Warrant Agent and
all other persons may treat the Holder of any Offered Debt Security as the owner
of the Warrant Certificates initially attached thereto for any purpose and as
the person entitled to exercise the rights represented by the Warrants evidenced
by such Warrant Certificates, any notice to the contrary notwithstanding. After
the Detachable Date] [If registered Warrants -- and prior to due presentment of
a Warrant Certificate for registration of transfer or exchange, the] [If Offered
Debt Securities and Warrants
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<PAGE>
which are immediately detachable or Warrants alone -- The] Company, the Warrant
Agent and all other persons may treat the Holder as the owner thereof for any
purpose and as the purpose entitled to exercise the rights represented by the
Warrants evidenced thereby, any notice to the contrary notwithstanding.
Section 3.4. Cancellation of Warrant Certificates.
Any Warrant Certificate surrendered for exchange [, transfer] or
exercise of the Warrants evidenced thereby shall, if surrendered to the Company,
be delivered to the Warrant Agent, and [If Warrant Certificates are issued in
bearer form -- except as provided below,] all Warrant Certificates surrendered
or so delivered to the Warrant Agent shall be promptly canceled by it and shall
not be reissued and, except as expressly permitted by this Agreement, no Warrant
Certificate shall be issued hereunder in lieu or in exchange thereof. [If
Warrant Certificates are issued in bearer form -- Warrant Certificates delivered
to the Warrant Agent in exchange for Warrant Certificates of other denominations
may be retained by the Warrant Agent for reissue as authorized hereunder.] The
Company may at any time deliver to the Warrant Agent for cancellation any
Warrant Certificates previously issued hereunder which the Company may have
acquired in any manner whatsoever, and all Warrant Certificates so delivered
shall be promptly canceled by the Warrant Agent. All canceled Warrant
Certificates held by the Warrant Agent shall be disposed of as instructed by the
Company, subject to applicable law.
ARTICLE IV
OTHER PROVISIONS RELATING TO RIGHTS
OF HOLDERS OF WARRANT CERTIFICATES
Section 4.1. No Rights as Holders of Warrant Securities Conferred byWarrants or
Warrant Certificates.
No Warrant Certificate or Warrants evidenced thereby shall entitle the
Holder thereof to any of the rights of a Holder of the Warrant Securities,
including, without limitation, the right to receive the payment of principal of
or premium, if any, or interest, if any, on the Warrant Securities or to enforce
any of the covenants in the Indenture.
Section 4.2. Holder of the Warrant Certificate May Enforce Rights.
Notwithstanding any of the provisions of this Agreement, any Holder of
any Warrant Certificate, without the consent of the Warrant Agent, the Trustee,
the Holder of any Warrant Securities or the Holder of any other Warrant
Certificate, may, in its own behalf and for its own benefit, enforce, and may
institute and maintain any suit, action or proceeding against the Company
suitable to enforce or otherwise in respect of, its right to exercise the
Warrant or Warrants evidenced by its Warrant Certificate in the manner provided
in the Warrant Certificates and this Agreement.
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<PAGE>
ARTICLE V
CONCERNING THE WARRANT AGENT
Section 5.1. Warrant Agent.
The Company hereby appoints [ ] as Warrant Agent of the Company in
respect of the Warrants and the Warrant Certificates upon the terms and subject
to the conditions set forth herein and in the Warrant Certificate, and [ ]
hereby accepts such appointment. The Warrant Agent shall have the power and
authority granted to and conferred upon it in the Warrant Certificates and
hereby and such further powers and authority to act on behalf of the Company as
the Company may hereafter grant to or confer upon it. All of the terms and
provisions with respect to such power and authority contained in the Warrant
Certificates are subject to and governed by the terms and provisions hereof.
Section 5.2. Conditions of Warrant Agent's Obligations.
The Warrant Agent accepts its obligations herein set forth, upon the
terms and conditions hereof, including the following, to all of which the rights
hereunder of the Holders from time to time of the Warrant Certificates shall be
subject:
(a) Compensation and Indemnification. The Company agrees promptly to pay
the Warrant Agent the compensation to be agreed upon with the Company for all
services rendered by the Warrant Agent and to reimburse the Warrant Agent for
reasonable out-of-pocket expenses (including reasonable attorneys' fees and
expenses) incurred by the Warrant Agent without negligence, bad faith or breach
of this Agreement on its part in connection with the services rendered hereunder
by the Warrant Agent. The Company also agrees to indemnify the Warrant Agent
for, and to hold it harmless against, any loss, liability or expense incurred
without negligence, bad faith or breach of this Agreement on the part of the
Warrant Agent, arising out of or in connection with its acting as such Warrant
Agent hereunder, including the reasonable costs and expenses of defending itself
against any claim or liability in connection with the exercise or performance at
any time of its powers or duties hereunder or with respect to the Warrants. The
obligations of the Company under this subsection (a) shall survive the exercise
of the Warrant Certificates and the resignation or removal of the Warrant Agent.
(b) Agent for the Company. In acting under this Agreement and in connection
with the Warrant Certificates, the Warrant Agent is acting solely as agent of
the Company and does not assume any obligation or relationship of agency or
trust for or with any of the owners or Holders of the Warrant Certificates.
(c) Counsel. The Warrant Agent may consult with counsel, which may include
counsel for the Company, and the written advice of such 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.
(d) Document. The Warrant Agent shall be protected and shall incur no
liability for or in respect of any action taken or omitted by it in reliance
upon any Warrant Certificate, notice, direction, consent, certificate,
affidavit, statement or other paper or document reasonably believed by it to be
genuine and to have been presented or signed by the proper parties.
(e) Certain Transactions. The Warrant Agent, any of its officers, directors
and employees, in its individual or any other capacity, may become the owner of,
or acquire any interest in, any Warrant Certificates, with the same rights that
it would have if were not such Warrant Agent, officer, director, employee or
other agent, and, to the extent permitted by applicable law, it or they may
engage or be interested in any financial or other transaction with the Company
and may act on, or as depositary, trustee or agent for, any committee or body of
Holders of Warrant Securities or other obligations of the Company as freely as
if it were not such Warrant Agent, officer, director, employee or other agent.
[Nothing in this Warrant Agreement shall be deemed to prevent the Warrant Agent
from acting as Trustee under the Indenture.]
(f) No Liability for Interest. The Warrant Agent shall not be under any
liability for interest on any monies at any time received by it pursuant to any
of the provisions of this Agreement or of the Warrant Certificates unless
otherwise agreed to in writing by the Company and the Warrant Agent.
(g) No Liability for Invalidity. The Warrant Agent shall not incur any
liability with respect to the validity of this Agreement or any of the Warrant
Certificates.
(h) No Responsibility for Representations. The Warrant Agent shall not be
responsible for any of the recitals or representations contained herein or in
the Warrant Certificates (except as to the Warrant Agent's Certificate of
Authentification thereon), all of which are made solely by the Company.
(i) No Implied Obligations. The Warrant Agent shall be obligated to perform
such duties as are herein and in the Warrant Certificates specifically set forth
and no implied duties or obligations shall be read into this Agreement or the
Warrant Certificates against the Warrant Agent. The Warrant Agent shall not be
under any obligation to take any action hereunder which may tend to involve it
in any expense or liability, the payment of which within a reasonable time is
not, in its reasonable opinion, assured to it. The Warrant Agent shall not be
accountable or under any duty or responsibility for the use by the Company of
any of the Warrant Certificates authenticated by the Warrant Agent and delivered
by it to the Company pursuant to this Agreement or
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<PAGE>
for the application by the Company of the proceeds of the Warrant
Certificates or any exercise of the Warrants evidenced thereby. The Warrant
Agent shall have no duty or responsibility in case of any default by the Company
in the performance of its covenants or agreements contained herein or in the
Warrant Certificates or in the Warrant Securities or in the case of the receipt
of any written demand from a Holder of a Warrant Certificate with respect to
such default, including, without limiting the generality of the foregoing, any
duty or responsibility to initiate or attempt to initiate any proceeding at law
or otherwise or, except as provided in Section 6.4 hereof, to initiate any
demand upon the Company.
Section 5.3. Resignation, Removal and Appointment of Successor.
(a) The Company agrees, for the benefit of the Holders from time to
time of the Warrant Certificates, that there shall at all times be a Warrant
Agent hereunder until all of the Warrants are no longer exercisable.
(b) The Warrant Agent may at any time resign as such agent by giving
written notice to the Company of such intention on its part, specifying the date
on which it desires its resignation to become effective; [provided that, without
the consent of the Company, such date shall not be less than [three months]
after the date on which such notice is given] [subject to the appointment of a
successor Warrant Agent and the acceptance of such appointment by such successor
Warrant Agent, as hereinafter provided.] The Warrant Agent hereunder may be
removed at any time by the filing with it of an instrument in writing signed by
or on behalf of the Company and specifying such removal and the date on which
the Company expects such removal to become effective. Such resignation or
removal shall take effect upon the appointment by the Company of a successor
Warrant Agent (which shall be a bank or trust company organized and doing
business under the laws of the United States of America, any State thereof or
the District of Columbia and authorized under such laws to exercise corporate
trust powers) by an instrument in writing filed with such successor Warrant
Agent and the acceptance of such appointment by such successor Warrant Agent
pursuant to Section 5.3(d). In the event a successor Warrant Agent has not been
appointed and has not accepted its duties within 90 days of the Warrant Agent's
notice of removal, the Warrant Agent may apply to any court of competent
jurisdiction for the designation of a successor Warrant Agent.
(c) In case at any time the Warrant Agent shall resign, or be removed,
or shall become incapable of acting, or shall be adjudged bankrupt or insolvent,
or shall file a voluntary petition in bankruptcy or make an assignment for the
benefit of its creditors or consent to the appointment of a receiver or
custodian of all or any substantial part of its property, or shall admit in
writing its inability to pay or meet its debts as they mature, or if a receiver
or custodian of it or of all or any substantial part of its property shall be
appointed, or if an order of any court shall be entered approving any petition
filed by or against it under the provisions of any applicable bankruptcy of
similar law or if any public officer shall have taken charge or control of the
Warrant Agent or of its property or affairs, for the purpose of rehabilitation,
conservation or liquidation, a successor
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<PAGE>
Warrant Agent qualified as aforesaid, shall be appointed by the Company by an
instrument in writing, filed with the successor Warrant Agent. Upon the
appointment as aforesaid of a successor Warrant Agent and the acceptance by the
latter of such appointment, the Warrant Agent so superseded shall cease to be
Warrant Agent hereunder.
(d) Any successor Warrant Agent appointed hereunder shall execute,
acknowledge and deliver to its predecessor and to the Company an instrument
accepting such appointment hereunder, and thereupon such successor Warrant
Agent, without any further act, deed or conveyance, shall become vested with all
of the authority, rights, powers, trusts, immunities, duties and obligations of
such predecessor with like effect as if originally named as Warrant Agent
hereunder, and such predecessor, upon payment of its charges and disbursements
then unpaid, shall thereupon become obligated to transfer, deliver and pay over,
and such successor Warrant Agent shall be entitled to receive all monies,
securities and other property on deposit with or held by such predecessor, as
Warrant Agent hereunder.
(e) Any corporation into which the Warrant Agent hereunder may be
merged or converted or any corporation with which the Warrant Agent may be
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Warrant Agent shall be a party, or any corporation
succeeding to all or substantially all of the corporate trust business of the
Warrant Agent, provided that it shall be qualified as aforesaid, shall be the
successor Warrant Agent under this Agreement without the execution of filing of
any paper or any further act on the part of any parties hereto.
(f) The Company may designate agencies for the surrender for exercise
of Warrant Certificates at such place or places as the Company may determine,
and the Company shall keep the Warrant Agent advised of the names and locations
of such agencies, if any are so designated. The Warrant Agent shall arrange
directly with such agencies for the delivery of Warrant Securities upon exercise
at such agencies. The Warrant Agent shall be in no way responsible or
accountable for the action or failure to act of any agencies designated pursuant
to this Section 5.3(f).
Section 5.4. Compliance with Applicable Laws.
The Warrant Agent agrees to comply with all applicable Federal and
state laws in respect of the services rendered by it under this Agreement and in
connection with the Warrants, including (but not limited to) the provisions of
United States Federal income tax laws regarding information reporting and backup
withholding. The Warrant Agent expressly assumes all liability for failure to
comply with such laws, including (but not limited to) any liability for failure
to comply with any applicable provisions of United States Federal income tax
laws regarding information reporting and backup withholding. The Warrant Agent
agrees to indemnify the Company for, and hold it harmless against, any loss,
liability or expense incurred by the Company arising from the negligence, bad
faith or breach of this Agreement on the part of the Warrant Agent, including
the reasonable costs and expenses of defending itself against any claim or
liability in connection therewith.
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<PAGE>
ARTICLE VI
MISCELLANEOUS
Section 6.1. Modification, Supplementation or Amendment.
(a) This Agreement may be modified, supplemented or amended by the
parties hereto, without the consent of the Holder of any Warrant Certificate,
for the purpose of curing any ambiguity, or of curing, correcting or
supplementing any defective provision contained herein or in such Warrant
Certificate, or making such provision in regard to matters or questions arising
under this Agreement as the Company may deem necessary or desirable; provided
that such action shall not adversely affect the interests of the Holders of the
Warrant Certificates in any material respect. The Warrant Agent may, but shall
not be obligated to, enter into any amendment to this Agreement which effects
the Warrant Agent's own rights, duties or immunities under this Agreement or
otherwise.
(b) The Company and the Warrant Agent may modify or amend this
Agreement and the Warrant Certificates, with the consent of the Holders of not
fewer than a majority in number of the then outstanding unexercised Warrants
affected by such modification or amendment, for any purpose; provided, however,
that no such modification or amendment that increases the Exercise Price or
shortens the period of time during which the Warrants may be exercised, or
otherwise materially and adversely effects the exercise rights of the Holders of
Warrant Certificates or reduces the number of outstanding Warrants the consent
of the Holders of which is required for modification, supplementation or
amendment of this Agreement or the Warrant Certificates, may be made without the
consent of each Holder affected thereby.
Section 6.2. Consolidation and Mergers of the Company and Sales, Leases
and Conveyances Permitted Subject to Certain Conditions.
To the extent permitted in the Indenture, the Company may consolidate
with, or sell, lease or convey all or substantially all of its assets to, or
merge with or into any other corporation or other entity.
Section 6.3. Rights and Duties of Successor Corporation.
In case of any such consolidation, merger, sale, lease or conveyance
and upon any such assumption by the successor corporation or entity, such
successor corporation or entity shall succeed to and be substituted for the
Company, with the same effect as if it had been named herein, and the Company,
except in the event of a lease, shall be relieved of any further obligation
under this Agreement and the Warrants. Such successor or assuming corporation or
entity shall expressly assume, by an amendment to this Agreement, executed and
delivered to the Warrant Agent, in form satisfactory to such Warrant Agent, the
due and punctual payment of any and all amounts payable by the Company pursuant
to this Agreement and the performance of every
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<PAGE>
covenant of this Agreement on the part of the Company to be performed or
observed. Such successor corporation or entity thereupon may cause to be signed,
and may issue either in its own name or in the name of the Company, any or all
of the Warrant Securities issuable pursuant to the terms hereof. All of the
Warrant Securities so issued shall in all respects have the same legal rank and
benefit under the Indenture as the Warrant Securities theretofore or thereafter
issued in accordance with the terms of this Agreement and the Indenture.
In case of any such consolidation, merger, sale, lease or conveyance,
such changes in phraseology and form (but not in substance) may be made in the
Warrant Securities thereafter to be issued as may be appropriate.
Section 6.4. Notices and Demands to the Company and Warrant Agent.
If the Warrant Agent shall receive any notice or demand addressed to
the Company by the Holder of a Warrant Certificate pursuant to the provisions of
the Warrant Certificates, the Warrant Agent shall promptly forward such notice
or demand to the Company.
Section 6.5. Governing Law.
This Agreement and each Warrant Certificate issued hereunder shall be
governed by and construed in accordance with the laws of the State of New York.
Section 6.6. Addresses.
Any communications from the Company to the Warrant Agent with respect to
this Agreement shall be addressed to [name of Warrant Agent], [address],
[facsimile: [ ]] [telephone: [ ]], Attention: [ ] and any communications from
the Warrant Agent, to the Company with respect to this Agreement shall be
addressed to 360(degree) Communications Company, 8725 W. Higgins Road, Chicago,
Illinois 60631-2702, facsimile: (773) 399-2838, telephone: (773) 399-2600,
Attention: Treasurer; (or such other address as shall be specified in writing by
the Warrant Agent or by the Company).
Section 6.7. Notices to Holders of Warrant Certificates.
Any notice to Holders of Warrant Certificates which by any provisions
of this Agreement is required or permitted to be given [If registered Warrants
- -- by first class mail postage prepaid at such Holder's address as it appears on
the books of the Warrant Agent [or on the register of the Offered Debt
Securities prior to the Detachable Date]] [If bearer Warrants -- by publication
at least once in a daily morning newspaper in New York City (which, if
practicable, shall be The Wall Street Journal (Eastern Edition) and in London
(which, if practicable, shall be the Financial Times of London)].
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<PAGE>
Section 6.8. Delivery of Prospectus.
The Company will furnish to the Warrant Agent sufficient copies of a
prospectus, appropriately supplemented, relating to the Warrant Securities (the
"Prospectus"), and the Warrant Agent agrees that, upon the exercise of any
Warrant Certificate, the Warrant Agent will deliver to the person designated to
receive Warrant Securities, prior to or concurrently with the delivery of such
Warrant Securities, a Prospectus.
Section 6.9. Obtaining of Governmental Approvals.
The Company will from time to time take all action which may be
necessary to obtain and keep effective any and all permits, consents and
approvals of governmental agencies and authorities and securities acts filings
under United States Federal and state laws (including, without limitation, the
maintenance of the effectiveness of a registration statement in respect of the
Warrant Securities under the Securities Act of 1933, as amended), which may be
or become required in connection with exercise of the Warrant Certificates and
the original issuance and delivery of the Warrant Securities.
Section 6.10. Persons Having Rights Under Warrant Agreement.
Nothing in this Agreement expressed or implied and nothing that may be
inferred from any of the provisions hereof is intended, or shall be construed,
to confer upon, or give to, any person or corporation other than the Company,
the Warrant Agent and the Holders of the Warrant Certificates any right, remedy
or claim under or by any reason of this Agreement or of any covenant, condition,
stipulation, promise or agreement hereof; and all covenants, conditions,
stipulations, promises and agreements in this Agreement shall be for the sole
and exclusive benefit of the Company and the Warrant Agent and their successors
and of the Holders of the Warrant Certificates.
Section 6.11. Headings.
The Article and Section headings herein and the Table of Contents are
for convenience of reference only and shall not affect the construction hereof.
Section 6.12. Counterparts.
This Agreement may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original; but such counterparts shall
together constitute but one and the same instrument.
Section 6.13. Inspection of Agreement.
A copy of this Agreement shall be made available at all reasonable times at
the principal
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<PAGE>
corporate trust office of the Warrant Agent [and at ] for inspection by the
Holder of any Warrant Certificate. [If bearer Warrants -- The Warrant Agent may
require such Holder to submit his Warrant Certificate for inspection by it.]
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<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written
360(degree) COMMUNICATIONS COMPANY
By:
Title:
(SEAL)
Attest:
Title:
[Name of Warrant Agent]
By:
Title:
(SEAL)
Attest:
Title:
<PAGE>
EXHIBIT A
[Face]
(FORM OF WARRANT CERTIFICATE)
Form of Legend if Offered Debt [Prior to , this Warrant
Securities with Warrants which are not Certificate may be [transferred or]
immediately detachable: exchanged if and only if the [Title of
Offered Debt Security] to which it was
initially attached is so [transferred or]
exchanged.]
Form of Legend if Warrants are not [Prior to , Warrants
immediately exercisable: evidenced by this Warrant Certificate
cannot be exercised.]
EXERCISABLE ONLY IF AUTHENTICATED BY THE
WARRANT AGENT AS PROVIDED HEREIN
VOID AFTER THE CLOSE OF BUSINESS ON , 19
360(degree) COMMUNICATIONS COMPANY
Warrant Certificate representing
Warrants to purchase
[Title of Warrant Securities]
as described herein
<PAGE>
No. Warrants
This certifies that [the bearer is the] [ or registered assigns is the
registered] owner of the above indicated number of Warrants, each Warrant
entitling such [bearer [If Offered Debt Securities and Warrants which are not
immediately detachable --, subject to the bearer qualifying as a "Holder" of
this Warrant Certificate, as hereinafter defined]] [registered owner] to
purchase, at any time [after the close of business on , 19 , and] at or before
the close of business on , 19 , $ principal amount of [Title of Warrant
Securities] (the "Warrant Securities") of 360(degree) Communications Company
(the "Company") issued or to be issued under the Indenture (as hereinafter
defined), on the following basis. [During the period from , 19 through and
including , 19 ,] each Warrant shall entitle the Holder thereof, subject to the
provisions hereof, to purchase from the Company the principal amount of Warrant
Securities stated above in this Warrant Certificate at the exercise price of
% of the principal amount thereof [plus accrued amortization, if any, of the
original discount of the Warrant Securities] [plus accrued interest, if any,
from the most recent date from which interest shall have been paid on the
Warrant Securities or, if no interest shall have been paid on the Warrant
Securities, from , 19 ]; [in each case, the original issue discount ($
for each $1,000 principal amount of Warrant Securities) will be
amortized at a % annual rate, computed on a[n] [semi-] annual basis [, using a
360-day year consisting of twelve 30-day months] (the "Exercise Price"). The
Holder of this Warrant Certificate may exercise the Warrants evidenced hereby,
in whole or in part, by surrendering this Warrant Certificate, with the purchase
form set forth hereon duly completed, accompanied [by payment in full, in lawful
money of the United States of America,] [in cash or by certified check or
official bank check in New York Clearing House funds] [by bank wire transfer in
immediately available funds] [by surrender of the [specified aggregate principal
amount of [identified securities]], of the Exercised Price for each Warrant
exercised, to the Warrant Agent (as hereinafter defined), at the corporate trust
office of [name of Warrant Agent], or its successor as Warrant Agent (the
"Warrant Agent") [or at ,] at the address specified on the reverse hereof and
upon compliance with and subject to the conditions set forth herein and in the
Warrant Agreement (as hereinafter defined). This Warrant Certificate may be
exercised only for the purchase of Warrant Securities in the principle amount of
[$1,000] or any integral multiple thereof.
The term "Holder" as used herein shall mean [If Offered Debt Securities
and Warrants which are not immediately detachable --, prior to , 19 (the
"Detachable Date"), the [bearer] [registered owner] of the Company's [title of
Offered Debt Securities] (the "Offered Debt Security") to which such Warrant
Certificate was initially attached, and after such Detachable Date,] [the bearer
of such Warrant Certificate] [the person whose name at the time such Warrant
Certificate shall be registered upon the books to be maintained by the Warrant
Agent for that purpose pursuant to Section 3.1 of the Warrant Agreement (as
hereinafter defined).] Any whole number of Warrants evidenced by this Warrant
Certificate may be exercised to purchase Warrant Securities in registered form.
Upon any exercise of fewer than all of the Warrants evidenced by this Warrant
Certificate, there should be issued to the [bearer] [registered owner] hereof a
new Warrant Certificate evidencing the number of Warrants remaining unexercised.
A-1
<PAGE>
This Warrant Certificate is issued under and in accordance with the
Warrant Agreement dated as of , 19 (the "Warrant Agreement"), between the
Company and the Warrant Agent and is subject to the terms and provisions
contained in the Warrant Agreement, to all of which terms and provisions the
Holder of this Warrant Certificate consents by acceptance hereof. Copies of the
Warrant Agreement are on file at the above-mentioned office of the Warrant Agent
[and at ].
The Warrant Securities to be issued and delivered upon the exercise of
Warrants evidenced by this Warrant Certificate will be issued under and in
accordance with the Indenture, dated as of [_________], 1997 (the "Indenture"),
as amended or supplemented from time to time, between the Company and Citibank,
N.A., a corporation organized under the laws of the State of New York, as
trustee (such trustee, and any successor trustee, the "Trustee"), and will be
subject to the terms and provisions contained in the Warrant Securities and in
the Indenture. Copies of the Indenture, including the form of the Warrant
Securities, are on file at the corporate trust office of the Trustee [and at ].
[If Offered Debt Securities and Warrants which are not immediately detachable --
Prior to the Detachable Date, this Warrant Certificate may be exchanged [or
transferred] only together with the Offered Debt Security to which this Warrant
Certificate was initially attached, and only for the purpose of effecting, or in
conjunction with, an exchange or transfer of such Offered Debt Security.
Additionally, on or prior to the Detachable Date, each transfer of such Offered
Debt Security [on the register of the Offered Debt Securities] shall operate
also to transfer this Warrant Certificate. After the Detachable Date, this] [If
Offered Debt Securities and Warrants which are immediately detachable or
Warrants alone -- This] Warrant Certificate, and all rights hereunder, may be
transferred] [If bearer Warrants -- by delivery and the Company and the Warrant
Agent may treat the bearer hereof as the owner for all purposes] [If registered
Warrants -- when surrendered at the address specified on the reverse hereof [or
] by the registered owner or his assigns, in person by an attorney duly
authorized in writing, in the manner and subject to the limitations provided in
the Warrant Agreement].
[If Offered Debt Securities and Warrants which are not immediately
detachable -- Except as provided in the immediately preceding paragraph, after]
[If Offered Debt Securities and Warrants which are immediately detachable or
Warrants alone -- After] authentification by the Warrant Agent and prior to the
expiration of this Warrant Certificate, this Warrant Certificate may be
exchanged at the address specified on the reverse hereof [or at ] for Warrant
Certificates representing the same aggregate number of Warrants.
This Warrant Certificate shall not entitle the [bearer] [registered
owner] hereof to any rights of a Holder of the Warrant Securities, including,
without limitation, the right to receive payments of principal of (and premium,
if any) or interest, if any, on the Warrant Securities or to enforce any of the
covenants of the Indenture.
Reference is hereby made to the further provisions of this Warrant
Certificate set forth on
A-2
<PAGE>
the reverse hereof, which further provisions shall for all purposes have the
same effect as if set forth at this place.
This Warrant Certificate shall not be valid or obligatory for any
purpose until countersigned by the Warrant Agent.
A-3
<PAGE>
IN WITNESS WHEREOF, the Company has caused this Warrant Certificate to
be duly executed under its corporate seal.
Dated:
360(degree) COMMUNICATIONS COMPANY
By
Title:
Attest:
Countersigned:
As Warrant Agent
By
Authorized Signature
A-4
<PAGE>
[REVERSE]
(FORM OF WARRANT CERTIFICATE)
(INSTRUCTIONS FOR EXERCISE OF WARRANTS)
To exercise any Warrants evidenced hereby, the Holder of this Warrant
Certificate must pay [in cash or by certified check or official bank check in
New York Clearing House funds] [by bank wire transfer in immediately available
funds] [by the surrender of the [specified aggregate principal amount of
[identified securities]], the Exercise Price in full for each of the Warrants
exercised, to _________________________, Corporate Trust Department,
, Attn.: [or ], which payment should specify the name of the
Holder of this Warrant Certificate and the number of Warrants exercised by such
Holder. In addition, the Holder of this Warrant Certificate should complete the
information required below and present in person or mail by registered mail this
Warrant Certificate to the Warrant Agent at the addresses set forth below.
(FORM OF EXERCISE)
(To be executed upon exercise of Warrants.)
The undersigned hereby irrevocably elects to exercise Warrants,
represented by this Warrant Certificate, to purchase $ principal amount of the
[Title of Warrant Securities] (the "Warrant Securities") of 360(degree)
Communications Company and represents that he has tendered payment for such
Warrant Securities [in cash or by certified check or official bank check in New
York Clearing House funds] [by wire transfer in immediately available funds] [by
the surrender of the [specified aggregate principal amount of [identified
securities]] to the order of 360(degree) Communications Company, c/o: in the
amount of $ in accordance with the terms hereof. The undersigned requests that
said principal amount of Warrant Securities be in [fully registered] [bearer]
form, in the authorized denominations [, registered in such names] and
delivered, all as specified in accordance with the instructions set forth below.
A-5
<PAGE>
If said principal amount of Warrant Securities is less than all of the
Warrant Securities purchasable hereunder, the undersigned requests that a new
Warrant Certificate representing the remaining balance of the Warrants evidenced
hereby be issued and delivered to the undersigned unless otherwise specified in
the instructions below.
Dated: , 19 Name:
---------------------- ------- (please print)
(Insert Social Security or other
Identifying Number of Holder)
Address:
Signature[If registered
Warrant -- Signature
must conform in all respects
to name of Holder as
specified on the face of
this Warrant Certificate
and must bear a signature
guaranteed by a bank, trust
company or member broker of
the New York Stock Exchange
or other national stock
exchange.]
This Warrant may be exercised at the following addresses:
By hand at:
By mail at:
A-6
<PAGE>
(Instructions as to form and delivery of Warrant Securities and/or Warrant
Certificates):
A-7
<PAGE>
(FORM OF ASSIGNMENT OF REGISTERED WARRANT)
(TO BE EXECUTED TO TRANSFER
THE WARRANT CERTIFICATE)
FOR VALUE RECEIVED hereby sells, assigns and transfers unto
Please insert social security
or other identifying number
(Please print name and address including zip code)
the right represented by the within Warrant Certificate and does hereby
irrevocably constitute and appoint , Attorney, to transfer said Warrant
Certificate on the books of the Warrant Agent with full power of substitution.
Dated: , 19
[Signature must conform in all respects to the name of Holder as specified
on the face of this Warrant Certificate and must bear a signature guaranteed by
a bank, trust company or member broker of the New York Stock Exchange (or other
relevant stock exchanges)].
Signature Guaranteed:
<PAGE>
February 7, 1997
Board of Directors
360(degree) Communications Company
8725 W. Higgins Road
Chicago, IL 60631-2702
Re: 360(degree) Communications Company
Registration Statement on Form S-3
Ladies and Gentlemen:
As Senior Vice President, General Counsel and Secretary of 360(degree)
Communications Company, a Delaware corporation (the "Company"), I have
participated in the preparation of a registration statement on Form S-3 (the
"Registration Statement") filed with the Securities and Exchange Commission
under the Securities Act of 1933, as amended, on the date hereof relating to the
proposed offer and sale from time to time by the Company of up to $500,000,000
in aggregate initial offering price of the Company's unsecured senior debt
securities (the "Debt Securities") and/or warrants to purchase Debt Securities
(the "Warrants," and collectively with the Debt Securities, the "Securities").
The Securities were authorized for issuance, offering and sale by the Board of
Directors of the Company by resolutions duly adopted on December 10, 1996 (the
"Resolutions"). The Debt Securities will be issued under an indenture (the
"Indenture") to be entered into between the Company and Citibank, N.A., as
Trustee. The Warrants will be issued under separate warrant agreements (the
"Warrant Agreement") to be entered into between the Company and a warrant agent
(the "Warrant Agent").
I have examined such agreements, documents, instruments and records as
I deemed necessary or appropriate under the circumstances for me to express the
opinions set forth below.
Based upon and subject to the foregoing, I am of the opinion that:
1. The Indenture, when the final terms thereof have been established
and duly approved in accordance with the Resolutions and when duly executed and
delivered by the Company pursuant to the Resolutions and assuming due
authorization, execution and delivery thereof by the Trustee, will constitute a
legal, valid and binding instrument of the Company enforceable against the
Company in accordance with its terms; and the Debt Securities, when the final
terms of any particular series thereof have been established and duly approved
in accordance with the Resolutions and when issued, sold and delivered in the
manner and for the consideration stated in the Registration Statement and in any
prospectus supplement to the prospectus included therein (the "Prospectus
Supplement") relating to such Debt Securities and duly executed by the
<PAGE>
Company and authenticated by the Trustee in accordance with the Indenture, will
be legal, valid and binding obligations of the Company enforceable against the
Company in accordance with their terms and such Debt Securities will be entitled
to the benefits of the Indenture.
2. Each Warrant Agreement, when the final terms thereof have been
established and duly approved in accordance with the Resolutions and when duly
executed and delivered by the Company pursuant to the Resolutions and assuming
due authorization, execution and delivery thereof by the Warrant Agent, will
constitute a legal, valid and binding instrument of the Company enforceable
against the Company in accordance with its terms; and the Warrants, when issued,
sold and delivered in the manner and for the consideration stated in the
Registration Statement and the Prospectus Supplement relating to such Warrants
and when duly executed by the Company and countersigned by the Warrant Agent in
accordance with the related Warrant Agreement, will be legal, valid and binding
obligations of the Company enforceable against the Company in accordance with
their terms.
The opinions set forth above are subject to the qualifications that (a)
enforcement of the Company's obligations under the Indenture and the Debt
Securities, and the Warrant Agreement and the Warrants, may be subject to (i)
applicable bankruptcy, insolvency (including, without limitation, all laws
relating to fraudulent transfers), reorganization, moratorium or other similar
laws now or hereafter in effect relating to or affecting creditors' rights
generally and (ii) general principles at law or in equity (regardless of whether
such enforcement is sought in a proceeding at law or in equity) and (b) the
remedy of specific performance and injunctive and other forms of equitable
relief may be subject to equitable defenses and to the discretion of the court
before which any proceeding therefor may be brought.
I hereby consent to the filing of this opinion with the Securities and
Exchange Commission as an exhibit to the Registration Statement and to the
reference made to me under the heading "Legal Opinions" set forth in the
prospectus forming a part of the Registration Statement.
Very truly yours,
/s/ Kevin C. Gallagher
Senior Vice President, General
Counsel and Secretary
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT 12
360(degree) COMMUNICATIONS COMPANY AND SUBSIDIARIES
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
(THOUSANDS OF DOLLARS)
For the Nine
Months Ended
September 30, For the Year Ended December 31,
----------------------------------------------------------------------
1996 1995 1994 1993 1992 1991
------------ ----------- ----------- ----------- ----------- -----------
<S> <C> <C> <C> <C> <C> <C>
Earnings
Income (loss) before
cumulative effects of
changes in
accounting principles $ 54,151 $ (1,695) $ (19,757) $ (49,897) $ (62,220) $ (64,277)
Adjustment for minority
interest in majority
owned affiliates 38,168 34,269 22,110 9,697 4,467 2,926
Share of distributed
income of less-than
50%-owned affiliates
net of equity pick-up (25,104) (7,206) (10,899) (10,466) (5,320) 2,646
Adjustment for 50%-
owned affiliates (8,438) (4,847) (4,966) (1,727) (13,376) 781
Capitalized interest (496) (1,553) (1,097) (712) (1,061) (866)
Income tax provision 47,407 25,405 5,697 (7,112) (17,309) (18,817)
------------ ----------- ----------- ----------- ----------- -----------
Subtotal 105,688 44,373 (8,912) (60,217) (94,819) (77,607)
Fixed charges
Interest charges 79,350 128,793 99,534 86,121 87,723 101,629
Interest portion of
operating rents 4,822 5,868 4,115 2,524 1,851 1,538
Adjustment for 50%-
owned affiliates 1,637 2,474 1,990 1,698 1,481 6
------------ ----------- ----------- ----------- ----------- -----------
Total fixed charges 85,809 137,135 105,639 90,343 91,055 103,173
------------ ----------- ----------- ----------- ----------- -----------
Earnings, as adjusted $ 191,497 $ 181,508 $ 96,727 $ 30,126 $ (3,764) $ 25,566
============ =========== =========== =========== =========== ===========
Ratio of earnings to fixed
charges 2.23 1.32
============ ===========
- ------------
NOTE: The ratio of earnings to fixed charges have been computed by dividing fixed charges into the sum
of (a) income (loss) before cumulative effects of changes in accounting principles, less capitalized
interest and with adjustments to appropriately reflect the Company's majority-owned, 50%-owned,
and less-than-50%-owned affiliates, (b) income taxes, and (c) fixed charges. Fixed charges consist
of interest on all indebtedness and the interest component of operating rents, with adjustments as
appropriate to reflect the Company's 50%-owned affiliates. For each of the 4 years in the period
ended December 31, 1994, the deficit of earnings to fixed charges was $8,912,000, $8,912,000,
$60,217,000, $94,819,000, and $77,607,000, respectively.
</TABLE>
<PAGE>
Consent of Independent Auditors
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement (Form S-3) and related Prospectus of 360(Degree)
Communications Company for the registration of $500,000,000 of debt securities
and to the incorporation by reference therein of our report dated March 29, 1996
with respect to the consolidated financial statements, schedule and Selected
Proportionate Operating Results of 360(Degree) Communications Company and
Subsidiaries included in its Annual Report (Form 10-K) for the year ended
December 31, 1995, filed with the Securities and Exchange Commission.
Ernst & Young LLP
Chicago, Illinois
February 3, 1997
<PAGE>
Consent of Independent Auditors
We consent to the use of our reports dated February 9, 1996 and February 10,
1995 with respect to the financial statements of the Kansas City SMSA Limited
Partnership included in the 360(Degree) Communication Company's Annual Report
(Form 10-K) for the year ended December 31, 1995 and incorporated by reference
in the Registration Statement (Form S-3) and related Prospectus of 360(Degree)
Communications Company for the registration of $500,000,000 of debt securities.
The financial statements referred to above are not included in the Form 10-K.
Ernst & Young LLP
San Antonio, Texas
February 4, 1997
<PAGE>
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this Registration Statement on Form S-3 of 360(degree)
Communications Company (formerly Sprint Cellular Company) of our reports dated
March 6, 1996 and February 13, 1995 (except with respect to the contingencies
section of Note 3 as to which the date is November 17, 1995) related to the
financial statements of the GTE Mobilnet of South Texas Limited Partnership as
of December 31, 1995 and 1994 and for the years ended December 31, 1995, 1994,
and 1993 and to all references to our Firm included in this Registration
Statement. The financial statements referred to above are not included
separately in the Registration Statement.
ARTHUR ANDERSEN LLP
Atlanta, Georgia
February 3, 1997
<PAGE>
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation of our
report on the financial statements of Independent Cellular Network, Inc. And
Affiliates (a Delaware corporation) dated March 16, 1996 (except for Note 14, to
which the date is May 31, 1996), included in 360(degree) Communications
Company's Form 8-K dated November 1, 1996, which document is incorporated by
reference in 360(degree) Communications Company's Form S-3 registering
$500,000,000 of Debt Securities and Warrants to Purchase Debt Securities.
ARTHUR ANDERSEN LLP
Chicago, Illinois
February 4, 1997
<PAGE>
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this registration statement of
360(degree) Communications Company on Form S-3 (File No. ) of our report dated
March 21, 1996, on our audits of the financial statements of the New York SMSA
Limited Partnership (the "Partnership") as of and for the years ended December
31, 1995 and 1994, and of our report March 10, 1995, except for Note 7 as to
which the date is November 22, 1995, on our audits of the financial statements
of the Partnership as of and for the years ended December 31, 1994 and 1993,
which reports are included in the 360(degree) Communications Company Annual
Report on Form 10-K for the year ended December 31, 1995, as amended by Form
10-K/A dated April 15, 1996. The financial statements referred to above are not
included separately in the Annual Report on Form 10-K. We also consent to the
reference to our firm under the caption "Experts".
COOPERS & LYBRAND L.L.P.
New York, New York
February 6, 1997
<PAGE>
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the Registration Statement on
Form S-3 of 360(degree) Communications Company of our report dated February 9,
1996, on our audit of the financial statements of Orlando SMSA Limited
Partnership as of and for the year ended December 31, 1995, which report is not
included separately in the 360(degree) Communications Company Annual Report on
Form 10-K for the year ended December 31, 1995 as amended and supplemented by
Form 10-K/A dated April 15, 1996, incorporated by reference in this Form S-3. We
also consent to the reference to our firm under the caption "Experts."
Coopers & Lybrand L.L.P.
Atlanta, Georgia
February 3, 1997
<PAGE>
POWER OF ATTORNEY
360(degree) Communications Company, for itself, and each person whose
signature appears below, appoint Dennis E. Foster, Michael J. Small and Kevin C.
Gallagher, and each of them severally, his or her true and lawful attorneys or
attorney with power to act with or without the others and with full power of
substitution and resubstitution, for him or her and in his or her name, place
and stead, in his or her capacity as an officer and/or director of the Company,
to sign and execute a registration statement on Form S-3, and any and all
amendments thereto, and all instruments necessary or incidental in connection
therewith, for the registration of up to $500,000,000 in aggregate principal
amount of 360(degree) Communications Company debt securities, and warrants to
purchase such debt securities, and to file the same with the Securities and
Exchange Commission, with full power and authority to each of said attorneys to
do and perform, in the name and on behalf of each said officers and directors,
or any of them, every act whatsoever necessary or desirable to be done as fully
and to all intents and purposes as any such officer and/or director might or
could do in person.
360(degree) COMMUNICATIONS COMPANY
/s/ Frank E. Reed
Date: December 10, 1996 By:_________________________________
Frank E. Reed
Chairman of the Board of Directors
Signature Title Date
/s/ Dennis E. Foster
________________________________ President and Chief December 10, 1996
Dennis E. Foster Executive Officer and Director
Principal Executive Officer)
/s/ Michael J. Small
________________________________ Executive Vice President December 10, 1996
Michael J. Small and Chief Financial Officer
(Principal Financial Officer)
/s/ Gary L. Burge
________________________________ Senior Vice President December 10, 1996
Gary L. Burge Finance
(Principal Accounting Officer)
/s/ Frank E. Reed
________________________________ Chairman of the Board December 10, 1996
Frank E. Reed of Directors
/s/ Lester Crown
________________________________ Director December 10, 1996
Lester Crown
<PAGE>
Signature Title Date
/s/ Michael Hooker
________________________________ Director December 10, 1996
Michael Hooker
/s/ Robert E. R. Huntley
________________________________ Director December 10, 1996
Robert E. R. Huntley
/s/ Valerie B. Jarrett
________________________________ Director December 10, 1996
Valerie B. Jarrett
/s/ Alice M. Peterson
________________________________ Director December 10, 1996
Alice M. Peterson
/s/ Charles H. Price, II
________________________________ Director December 10, 1996
Charles H. Price, II
<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------------------
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
Check if an application to determine eligibility of a Trustee
pursuant to Section 305 (b)(2) ____
------------------------
CITIBANK, N.A.
(Exact name of trustee as specified in its charter)
13-5266470
(I.R.S. employer
identification no.)
399 Park Avenue, New York, New York 10043
(Address of principal executive office) (Zip Code)
-----------------------
360(degree) Communications Company
(Exact name of obligor as specified in its charter)
Delaware 47-0649117
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
8725 W. Higgins Road
Chicago, Illinois 60631-2702
(Address of principal executive offices) (Zip Code)
-------------------------
Debt Securities
(Title of the indenture securities)
<PAGE>
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to which it
is subject.
Name Address
Comptroller of the Currency Washington, D.C.
Federal Reserve Bank of New York New York, NY
33 Liberty Street
New York, NY
Federal Deposit Insurance Corporation Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with Obligor.
If the obligor is an affiliate of the trustee, describe each
such affiliation.
None.
Item 16. List of Exhibits.
List below all exhibits filed as a part of this Statement of
Eligibility.
Exhibits identified in parentheses below, on file with the Commission, are
incorporated herein by reference as exhibits hereto.
Exhibit 1 - Copy of Articles of Association of the Trustee, as now in
effect. (Exhibit 1 to T-1 to Registration Statement No. 2-79983)
Exhibit 2 - Copy of certificate of authority of the Trustee to commence
business. (Exhibit 2 to T-1 to Registration Statement No. 2-29577).
Exhibit 3 - Copy of authorization of the Trustee to exercise corporate
trust powers. (Exhibit 3 to T-1 to Registration Statement No. 2-55519)
Exhibit 4 - Copy of existing By-Laws of the Trustee. (Exhibit 4 to T-1 to
Registration Statement No. 33-34988)
Exhibit 5 - Not applicable.
Exhibit 6 - The consent of the Trustee required by Section 321(b) of the
Trust Indenture Act of 1939. (Exhibit 6 to T-1 to Registration Statement No.
33-19227.)
Exhibit 7 - Copy of the latest Report of Condition of Citibank, N.A. (as of
September 30, 1996 - attached)
Exhibit 8 - Not applicable.
Exhibit 9 - Not applicable.
------------------
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the
Trustee, Citibank, N.A., a national banking association organized and existing
under the laws of the United States of America, has duly caused this statement
of eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in The City of New York and State of New York, on the 4th day of
February, 1997.
CITIBANK, N.A.
By /s/ Carol Ng
Carol Ng
Vice President
<PAGE>
