AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON APRIL 17, 2000
REGISTRATION NO. 333-32106
===========================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-----------------------------------
AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-----------------------------------
SABRE HOLDINGS CORPORATION
(Exact name of registrants as specified in their charters)
-----------------------------------
DELAWARE
(State or other jurisdiction of
incorporation or organization)
75-2662240
(I.R.S. Employer Identification No.)
4255 AMON CARTER BOULEVARD
FORT WORTH, TEXAS 76155
(817) 963-6400
(Address, including zip code, and telephone
number, including area code, of registrants'
principal executive offices)
JEFFERY M. JACKSON
Executive Vice President, Chief Financial Officer
and Treasurer
SABRE HOLDINGS CORPORATION
4255 AMON CARTER BOULEVARD
FORT WORTH, TEXAS 76155
(817) 963-6400
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
-----------------------------------
COPY TO:
THOMAS W. CHRISTOPHER
FRIED, FRANK, HARRIS, SHRIVER & JACOBSON
ONE NEW YORK PLAZA
NEW YORK, NEW YORK 10004
(212) 859-8000
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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. [ ]
(Continued on next page)
-----------------------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE
OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE
REGISTRANT SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT
THIS REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE
WITH SECTION 8(A) OF THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION
STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
===========================================================================
<PAGE>
(Continued from previous page)
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
===================================================================================================================================
TITLE OF EACH CLASS OF MAXIMUM AMOUNT TO PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
SECURITIES TO BE REGISTERED(1) BE REGISTERED(2)(3) OFFERING PRICE PER UNIT AGGREGATE OFFERING PRICE REGISTRATION FEE
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Class A Common Stock, par
value $.01 per share
Preferred Stock, par value
$.01 per share Warrants to
Purchase Class A Common
Stock Stock Purchase
Contracts and Stock
Purchase Units Debt
Securities
Warrants to Purchase
Debt Securities........... $750,000,000 (5) $750,000,000(4) $198,000
- -----------------------------------------------------------------------------------------------------------------------------------
<FN>
(1) Also includes (i) such indeterminate number of shares of Class A
Common Stock and shares of Preferred Stock as may be issued upon (a)
conversion of or exchange for other shares of Preferred Stock or Debt
Securities to the extent such other shares of Preferred Stock or Debt
Securities provide for conversion into or exchange for shares of Class
A Common Stock or Preferred Stock, or (b) exercise of any Warrants to
purchase Class A Common Stock or Stock Purchase Contracts, (ii) such
indeterminate principal amount of Debt Securities as may be issued
upon (a) conversion of or exchange for shares of Preferred Stock or
other Debt Securities to the extent such shares of Preferred Stock and
other Debt Securities provide for conversion into or exchange for Debt
Securities or (b) exercise of any Warrants to purchase Debt Securities
and (iii) Stock Purchase Contracts which may be offered as part of
Units of Stock Purchase Contracts and other Securities registered
hereby.
(2) Or, if any Debt Securities are issued at an Original Issue Discount,
such greater amount as shall result in an aggregate public offering
price not in excess of $750,000,000.
(3) In U.S. dollars or the equivalent thereof in one or more foreign
currencies or currency units or composite currencies.
(4) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(o).
(5) Not specified as to each class of Securities to be registered pursuant
to General Instruction II-D of Form S-3.
</FN>
</TABLE>
-----------------------------------
<PAGE>
[RED HERRING]
THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. WE
MAY NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH
THE SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT
AN OFFER TO SELL THESE SECURITIES AND IT IS NOT SOLICITING AN OFFER TO BUY
THESE SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED.
<PAGE>
SUBJECT TO COMPLETION DATED APRIL 17, 2000
PROSPECTUS
SABRE HOLDINGS CORPORATION
CLASS A COMMON STOCK, PREFERRED STOCK,
WARRANTS TO PURCHASE CLASS A COMMON STOCK,
STOCK PURCHASE CONTRACTS, STOCK PURCHASE UNITS,
DEBT SECURITIES AND
WARRANTS TO PURCHASE DEBT SECURITIES
------------------
Through this prospectus, we may periodically offer:
o shares of our Class A common stock;
o shares of our preferred stock;
o warrants to purchase our Class A common stock;
o contracts to purchase shares of our Class A common stock or
preferred stock;
o our debt securities;
o warrants to purchase our debt securities; and/or
o units consisting of contracts to purchase shares of our Class
A common stock or preferred stock and our preferred stock or
debt securities or U.S. treasury securities.
The offering price of all securities issued under this prospectus
may not exceed $750,000,000. We will provide the specific terms of these
securities in supplements to this prospectus. This prospectus may be used
to offer and sell securities only if accompanied by the prospectus
supplement for those securities. You should read this prospectus and any
prospectus supplement carefully before you invest in any of these
securities.
Our Class A common stock trades on the New York Stock Exchange
under the symbol "TSG." We will list any shares of our Class A common stock
sold under this prospectus on the New York Stock Exchange. If we decide to
list or seek a quotation for any other securities, the prospectus
supplement will disclose the exchange or market on which such securities
will be listed or quoted.
Neither the Securities and Exchange Commission nor any state
securities commission has approved or disapproved these securities, or
determined if this prospectus is truthful or complete. Any representation
to the contrary is a criminal offense.
------------------
The date of this prospectus is , 2000.
<PAGE>
YOU SHOULD RELY ONLY ON THE INFORMATION CONTAINED OR INCORPORATED
BY REFERENCE IN THIS PROSPECTUS AND IN ANY PROSPECTUS SUPPLEMENT
ACCOMPANYING THIS PROSPECTUS AND THAT WE HAVE REFERRED YOU TO. WE HAVE NOT
AUTHORIZED ANYONE TO PROVIDE YOU WITH INFORMATION THAT IS DIFFERENT. YOU
SHOULD NOT ASSUME THAT THE INFORMATION IN THIS PROSPECTUS OR IN ANY
PROSPECTUS SUPPLEMENT IS ACCURATE AS OF ANY DATE OTHER THAN THE DATE ON THE
FRONT OF THOSE DOCUMENTS.
------------------
Unless we specify otherwise, references in this prospectus to
"Sabre," "we," "us" and "our" are to Sabre Holdings Corporation and its
consolidated subsidiaries.
------------------
TABLE OF CONTENTS
PAGE
----
Sabre............................................................... 3
Use of Proceeds..................................................... 3
Ratio of Earnings to Fixed Charges.................................. 4
Description of Capital Stock........................................ 4
Description of Stock Purchase Contracts and Stock Purchase Units.... 11
Description of Debt Securities...................................... 11
Description of Warrants............................................. 19
Plan of Distribution................................................ 20
Legal Matters....................................................... 21
Experts............................................................. 21
Where You Can Find More Information................................. 22
Forward-Looking Statements.......................................... 22
------------------
<PAGE>
SABRE
GENERAL
We are a global leader in information technology for the travel
and transportation industries. Through our SabreTM computer reservations
system, we are a leader in the electronic distribution of travel. The Sabre
system allows travel agencies, corporate travel departments and individual
consumers to access information about and book reservations with airlines
and other providers of travel and travel-related products and services. In
addition, we are a leading provider of information technology solutions to
the travel and transportation industries and fulfill substantially all of
the data processing, network and distributed systems needs of American
Airlines, Inc. and AMR Corporation's other subsidiaries, Canadian Airlines
International, Ltd., US Airways, Inc. and other customers.
We are a holding company incorporated in Delaware on June 25,
1996. As the result of a reorganization completed on July 2, 1996, we
became the successor to the businesses of The Sabre Group which were
formerly operated as divisions or subsidiaries of American Airlines or AMR.
On October 17, 1996, we completed an initial public offering of 23,230,000
shares of our Class A common stock, representing approximately 17.8% of the
economic interest of our outstanding common equity. As of December 31,
1999, AMR owned all 107,374,000 shares of our Class B Common Stock,
representing approximately 82.7% of the economic interest and 98.0% of the
combined voting power of all classes of our voting stock.
On July 30, 1999, we changed our name from The Sabre Group
Holdings, Inc. to our current name, Sabre Holdings Corporation.
RECENT DEVELOPMENTS
On December 14, 1999, AMR announced its intention to distribute
its entire ownership interest in us to its stockholders in a spin-off. On
March 15, 2000, AMR exchanged all of its shares of our Class B common stock
for an equal number of shares of our Class A common stock and then
distributed those Class A shares to its stockholders in the form of a stock
dividend. The IRS has ruled that the spin-off will be tax-free to us, AMR
and AMR's stockholders. In connection with the spin-off, on February 18,
2000 we paid a one-time cash dividend of $675 million, or approximately
$5.20 per share, to all stockholders of record as of the opening of regular
trading on the New York Stock Exchange on February 15, 2000.
On March 7, 2000, Travelocity.com, one of our operating units,
completed its merger with Preview Travel, Inc., a publicly-traded company
engaged in consumer direct travel distribution over the Internet. In
connection with the merger, we contributed our Travelocity.com business and
Preview Travel contributed its business to a partnership that will operate
the combined businesses. We directly, and indirectly through our ownership
interest in Travelocity.com, own approximately 70% of this partnership.
Public stockholders own the remainder of the partnership through their
interests in Travelocity.com. As a result of these transactions,
Travelocity.com is now one of the leading online travel services.
------------------
Our principal executive offices are located at 4255 Amon Carter
Boulevard, Fort Worth, Texas 76155, and our telephone number is (817)
963-6400.
USE OF PROCEEDS
Except as we may otherwise state in any prospectus supplement, we
intend to use the net proceeds from the sale of the securities described in
this prospectus for general corporate purposes, including the retirement of
debt, additions to working capital, capital expenditures and for
acquisitions.
<PAGE>
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth our consolidated ratio of earnings
to fixed charges for the periods indicated. The ratio of earnings to fixed
charges is computed by dividing fixed charges into net earnings before
income taxes and earnings from equity investees, plus fixed charges and the
distributed income from equity investees. Fixed charges include interest
costs and the estimated interest component of rent expense (one-third of
rent expense under operating leases).
<TABLE>
<CAPTION>
YEARS ENDED DECEMBER 31,
1999 1998 1997 1996 1995
---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C>
Ratio of earnings to fixed charges......... 18.80 11.78 10.48 7.95 16.77
</TABLE>
DESCRIPTION OF CAPITAL STOCK
The following description of our capital stock is not complete and
is qualified in its entirety by reference to our certificate of
incorporation and bylaws and to any certificate of designations that we
file with the SEC if we offer preferred stock under this prospectus. We
have filed a copy of our certificate of incorporation as an exhibit to the
registration statement of which this prospectus is part.
GENERAL
Our authorized capital stock consists of
o 250,000,000 shares of Class A common stock, par value $.01
per share,
o 107,374,000 shares of Class B common stock, par value $.01
per share, and
o 20,000,000 shares of preferred stock, par value $.01 per
share.
As of March 31, 2000, 129,777,118 shares of our Class A common stock, of
our Class B common stock and no shares of our preferred stock were issued
and outstanding. We have proposed to our stockholders that our certificate
of incorporation be amended to remove the provisions that relate to our
Class B common stock and the provisions governing the allocation of
corporate opportunities and resolution of conflicts of interest among our
company, AMR and our respective affiliates. We are also considering
amending corresponding provisions in our bylaws. Accordingly, portions of
the description of our common stock and charter and bylaw provisions below
will no longer apply following the approval by our stockholders of the
proposed charter amendments and the adoption of the proposed bylaw
amendments. The charter amendments are described in detail in our
preliminary proxy statement filed with the SEC in connection with our
annual meeting of stockholders.
COMMON STOCK
VOTING RIGHTS
The holders of our Class A common stock and Class B common stock
generally have identical rights except that holders of our Class A common
stock are entitled to one vote per share while holders of our Class B
common stock are entitled to 10 votes per share on all matters to be voted
on by stockholders. Holders of shares of our Class A common stock and Class
B common stock are not entitled to cumulate their votes in the election of
directors.
Generally, all matters to be voted on by our stockholders must be
approved by a majority (or, in the case of the election of directors, by a
plurality) of the votes entitled to be cast by all of our common
stockholders, voting together as a single class, subject to any voting
rights granted to any of the holders of our preferred stock. Except as the
law may otherwise provide, and subject to any voting rights granted to
holders of our preferred stock, amendments to our certificate of
incorporation generally must be approved by a majority of the combined
voting power of all of our common stockholders, voting together as a single
class. However, amendments to our certificate of incorporation that would
alter or change the powers, preferences or special rights of our Class A
common stock or our Class B common stock in an adverse way also requires
the approval of a majority of the votes entitled to be cast by that class,
voting as a separate class. Nevertheless, any amendment to our certificate
of incorporation to increase the authorized shares of any class or
authorize the creation, authorization or issuance of any securities
convertible into, or warrants or options to acquire, shares of that class
requires the approval of the holders of a majority of our common stock,
voting together as a single class.
DIVIDENDS
Holders of our common stock will share in an equal amount per
share in any dividend declared by our board of directors, subject to any
preferential rights of any of our outstanding preferred stock. Dividends
consisting of shares of Class A common stock and Class B common stock may
be paid only as follows:
o shares of our Class A common stock may be paid only to
holders of our Class A common stock and shares of our Class B
common stock may be paid only to holders of our Class B
common stock and
o shares will be paid proportionally with respect to each
outstanding share of our Class A common stock and our Class B
common stock.
OTHER RIGHTS
On our liquidation, dissolution or winding up, after payment in
full of any amounts we must pay to any creditors and any holders of our
preferred stock, all of our common stockholders, regardless of class, are
entitled to share ratably in any assets available for distribution to our
common stockholders.
No shares of either class of our common stock are subject to
redemption or have preemptive rights to purchase additional shares of our
common stock.
PREFERRED STOCK
As of the date of this prospectus, no shares of preferred stock
are outstanding. Our board of directors may authorize the issuance of
preferred stock in one or more series and may determine, with respect to
any series, the designations, powers, preferences and rights of that
series, and the qualifications, limitations and restrictions of that
series, including:
o the designation of the series;
o the number of shares of the series, which number may
thereafter be increased or decreased by our board of
directors (but not below the number of shares of that series
then outstanding);
o whether dividends, if any, will be cumulative or
noncumulative and the dividend rate of the series;
o the conditions under which and the dates upon which dividends
will be payable, and the relation which those dividends will
bear to the dividends payable on any other class or classes
of stock;
o the redemption rights and price or prices, if any, for shares
of the series;
o the terms and amounts of any sinking fund provided for the
purchase or redemption of shares of the series;
o the amounts payable on and the preferences of shares of the
series, in the event of any voluntary or involuntary
liquidation, dissolution or winding up of the affairs of our
company;
o whether the shares of the series will be convertible into
shares of any other class or series, or any other security,
of our company or any other corporation, and, if so, the
specification of that other class or series or that other
security, the conversion price or prices or rate or rates,
any adjustments to that price or those prices or that rate or
those rates, the date or dates as of which those shares will
be convertible and all other terms and conditions upon which
the conversion may be made;
o restrictions on the issuance of shares of the same series or
of any other class or series; and
o the voting rights, if any, of the holders of shares of that
series.
We believe that the ability of our board of directors to issue one
or more series of preferred stock will provide us with flexibility in
structuring possible future financings and acquisitions and in meeting
other corporate needs that might arise. Our authorized shares of preferred
stock will be available for issuance without further action by our
stockholders, unless that action is required by applicable law or the rules
of any stock exchange or automated quotation system on which our securities
may be listed or traded. The New York Stock Exchange currently requires
stockholder approval as a prerequisite to listing shares in several
instances, including where the present or potential issuance of shares
could result in an increase in the number of shares of common stock
outstanding, or in the amount of voting securities outstanding, of at least
20%.
Although our board of directors has no intention at the present
time of doing so, it could issue a series of preferred stock that could,
depending on the terms of that series, impede the completion of a merger,
tender offer or other takeover attempt. Our board of directors may decide
to issue those shares based on its judgment as to the best interests of our
company and our stockholders. Our board of directors, in so acting, could
issue preferred stock having terms that could discourage a potential
acquiror from making an unsolicited and unwanted acquisition attempt
through which that acquiror may be able to change the composition of our
board of directors, including a tender offer or other transaction that
some, or a majority, of our stockholders might believe to be in their best
interests or in which stockholders might receive a premium for their stock
over the then current market price of that stock.
BUSINESS COMBINATION STATUTE
We are subject to Section 203 of the Delaware General Corporation
Law (referred to as the DGCL) which restricts certain business combinations
between our company and an "interested stockholder" or its affiliates or
associates for three years after the stockholder becomes an "interested
stockholder." An "interested stockholder" is, in general, a stockholder
that owns 15% or more of a corporation's outstanding voting stock. The
restrictions do not apply if our board of directors approved the
transaction that caused an interested stockholder to become an interested
stockholder, our board of directors approves the transaction and
stockholders holding at least 66 2/3% of our outstanding voting stock not
owned by the interested stockholder approves the transaction at a
stockholders' meeting or upon consummation of the transaction, the
interested stockholder owns at least 85% of our voting stock outstanding at
the time the transaction commenced (excluding certain shares). Because AMR
became an interested stockholder at a time when the restrictions did not
apply, the restrictions will not apply to any business combination with
AMR. Although our stockholders may elect to exclude our company from the
restrictions imposed by Section 203 of the DGCL, our certificate of
incorporation does not currently exclude us from those restrictions.
CERTIFICATE OF INCORPORATION AND BYLAW PROVISIONS
The summary set forth below describes certain provisions of our
certificate of incorporation and bylaws. The summary is qualified in its
entirety by reference to the provisions of our certificate of incorporation
and bylaws, copies of which we have filed as exhibits to the registration
statement of which this prospectus forms a part.
Some of the provisions of our certificate of incorporation and
bylaws discussed below may have the effect, either alone or in combination
with the provisions of Section 203 discussed above, of making more
difficult or discouraging a tender offer, proxy contest or other takeover
attempt that is opposed by our board of directors but that a stockholder
might consider to be in its best interest.
CLASSIFIED BOARD OF DIRECTORS
Our certificate of incorporation and bylaws provide for a
classified board of directors. Except for directors that may be elected by
the holders of our preferred stock or any other series or class of our
stock, our board is divided into three classes, with the directors of each
class as nearly equal in number as possible. The directors of each class
serve a term that expires at the third succeeding annual meeting of our
stockholders after their election, and each director holds office until his
or her successor is duly elected and qualified. At each annual meeting of
our stockholders, the term of a different class of our directors expires.
Our board of directors may not consist of more than 12 or less than three
directors. Our bylaws also provide generally that any vacancies will be
filled only by the affirmative vote of a majority of our remaining
directors, even if less than a quorum. Therefore, without an amendment to
our bylaws, our board of directors could prevent any stockholder from
enlarging our board of directors and filling the new directorships with
that stockholder's own nominees.
Our certificate of incorporation and bylaws generally provide that our
directors may be removed only for cause and only upon the affirmative vote
of holders of at least 80% of the voting power of all the then outstanding
shares of our stock entitled to vote generally in the election of directors
("Voting Stock"), voting together as a single class.
The classification of our directors will have the effect of making
it more difficult to change the composition of our board of directors. It
could also have the effect of discouraging a third party from initiating a
proxy contest, making a tender offer or otherwise attempting to obtain
control of our company, even though such an attempt might be beneficial to
our company and our stockholders.
NO STOCKHOLDER ACTION BY WRITTEN CONSENT; SPECIAL MEETINGS
Our certificate of incorporation and bylaws generally provide that
stockholder action can be taken only at an annual or special meeting of our
stockholders and may not be taken by written consent in place of a meeting.
Our bylaws generally provide that special meetings of our stockholders can
be called only by our board of directors. Our stockholders may not call a
special meeting or require that our board of directors call such a meeting.
The business conducted at any special meeting of our stockholders is
limited to the business set forth in our notice of meeting provided to
stockholders.
ADVANCE NOTICE PROVISIONS FOR STOCKHOLDER NOMINATIONS
AND STOCKHOLDER PROPOSALS
Our bylaws establish an advance notice procedure for our
stockholders to make nominations of candidates for election as directors or
bring other business before an annual meeting of our stockholders. This
stockholder notice procedure provides that only persons who are nominated
by, or at the direction of, our board of directors, or by a stockholder who
has given timely written notice, will be eligible for election as directors
of our company. In addition, the business that may be conducted at an
annual meeting is limited to business that has been brought before the
meeting by, or at the direction of, our chairman of the board or our board
of directors or by a stockholder who has given timely written notice of
that stockholder's intention to bring that business before the meeting.
The stockholder notice procedure may have the effect of precluding a
contest for the election of directors or the consideration of stockholder
proposals if the proper procedures are not followed, and of discouraging or
deterring a third party from conducting a solicitation of proxies to elect
its own slate of directors or to approve its own proposal, without regard
to whether consideration of those nominees or proposals might be harmful or
beneficial to our company and our stockholders.
AMENDMENTS
Our certificate of incorporation and bylaws require that any amendment
to the provisions of our bylaws or to certain provisions of our certificate
of incorporation, including those provisions discussed above, must be
approved by the holders of at least 80% of the Voting Stock. Our
certificate of incorporation further provides that our board of directors
may amend our bylaws.
CORPORATE OPPORTUNITY AND CONFLICT OF INTEREST POLICIES
Our certificate of incorporation contains provisions to address
some potential conflicts of interest between our company and AMR. In
general, these provisions recognize that we and AMR and our and their
subsidiaries may engage in the same or similar business activities and
lines of business and may have an interest in the same corporate
opportunities. These provisions recognize that we and AMR and our and their
subsidiaries will continue to have contractual and business relations with
each other even after the tax-free spin-off.
CORPORATE OPPORTUNITY POLICY
Our certificate of incorporation provides that, except as AMR may
otherwise agree in writing, AMR will have the right to
o engage in the same or similar business activities or lines of
business as our company,
o do business with any potential or actual client, customer or
supplier of our company and
o employ or engage any of our officers or employees.
Neither AMR nor any of its officers or directors will be liable to us or
our stockholders for any breach of fiduciary duty by reason of these
activities. In addition, if AMR learns of a potential transaction or matter
that may be a corporate opportunity for both AMR and our company, AMR will
have no duty to communicate that opportunity to us. AMR will not be liable
to us or our stockholders because AMR pursues or acquires that corporate
opportunity for itself, directs that corporate opportunity to another
person or entity or does not present that corporate opportunity to us.
If one of our directors or officers who is also a director or
officer of AMR learns of a potential transaction or matter that may be a
corporate opportunity for both our company and AMR, our certificate of
incorporation requires that our director or officer act in good faith under
the following three-part policy:
o a corporate opportunity offered to any person who is a
director but not an officer of our company and who is also an
officer (whether or not a director) of AMR will belong to
AMR, unless the opportunity is expressly offered to that
person primarily in his or her capacity as a director of our
company; in that case, the opportunity will belong to us.
o a corporate opportunity offered to any person who is an
officer (whether or not a director) of our company and who is
also a director but not an officer of AMR will belong to us,
unless the opportunity is expressly offered to that person
primarily in his or her capacity as a director of AMR; in
that case the opportunity will belong to AMR.
o a corporate opportunity offered to any other person who is
either an officer of both our company and AMR or a director
of both our company and AMR will belong to AMR or to us, as
applicable, if the opportunity is expressly offered to the
person primarily in his or her capacity as an officer or
director of AMR or of our company, respectively. Otherwise,
the opportunity will belong to AMR.
Under our certificate of incorporation, neither we nor AMR can
pursue (or direct to another person or entity) any corporate opportunity
that belongs to the other until the party to whom the opportunity
determines not to pursue the opportunity. However, if the party to whom the
corporate opportunity belongs does not within a reasonable period of time
begin to pursue, or thereafter continue to pursue, the opportunity
diligently and in good faith, the other party may pursue the opportunity
(or direct it to another person or entity).
A director or officer of our company who follows the three-part
policy above will be considered to have acted reasonably and in good faith
and fully to have satisfied his or her duties of loyalty and fiduciary
duties to our company and our stockholders with respect to that
opportunity.
Under our certificate of incorporation, "corporate opportunities"
potentially allocable to our company consist of business opportunities
which
o we are financially able to undertake;
o are, from their nature, in our line or lines of business and
are of practical advantage to us; and
o are ones in which we have an interest or reasonable
expectancy.
In addition, "corporate opportunities" do not include transactions that we
or AMR may participate in under any agreement between our company and AMR
when any of our equity is held of record by any person other than AMR or
subsequently entered into with the approval of our disinterested directors.
For purposes of these corporate opportunity provisions, our chairman of the
board or chief executive officer will not be considered an officer of our
company by reason of holding that position, unless that person is one of
our full-time employees.
CONFLICT OF INTERESTS POLICY
Our certificate of incorporation provides that no contract,
agreement, arrangement or transaction between
o our company and AMR,
o our company and any customer or supplier or any entity in
which one of our directors has a financial interest (a
"Related Entity"), or
o our company and one or more of the directors or officers of
our company, AMR or any Related Entity,
or any amendment, modification or termination of that contract, agreement,
arrangement or transaction, will be voidable solely because
o AMR or that customer or supplier, any Related Entity, or any
one or more of the officers or directors of our company, AMR
or any Related Entity are parties to it, or
o any of those directors or officers are present at or
participate in the meeting of our board of directors or
committee of the board which authorizes the contract,
agreement, arrangement, transaction, amendment, modification
or termination (each, a "Transaction") or
o solely because their votes are counted for that purpose,
if one of the following four requirements is met:
o the material facts as to the Transaction are disclosed or
known to our board of directors or the committee of our board
that authorizes the Transaction, and our board of directors
or that committee in good faith approves the Transaction by a
majority of the disinterested directors on our board or that
committee, even if the disinterested directors are less than
a quorum;
o the material facts as to the Transaction are disclosed or
known to the holders of the Voting Stock entitled to vote on
the Transaction, and the Transaction is specifically approved
by vote of the holders of a majority of the then outstanding
Voting Stock not owned by AMR or the Related Entity, voting
together as a single class;
o the Transaction is effected under guidelines which are in
good faith approved by a majority of the disinterested
directors on our board of directors or the applicable
committee of the board or by vote of the holders of a
majority of the then outstanding Voting Stock not owned by
AMR or the Related Entity, voting together as a single class;
or
o the Transaction is fair to our company as of the time it is
approved by our board of directors, a committee of our board
or our stockholders.
Our certificate of incorporation also provides that any
Transaction authorized, approved or effected, and each of the guidelines so
authorized or approved, as described in the first three items of the
immediately preceding list, will be deemed to be entirely fair to our
company and our stockholders; provided that, if that authorization or
approval is not obtained, or the Transaction is not so effected, no
presumption shall arise that the Transaction or guideline is not fair to
our company and our stockholders.
The affirmative vote of the holders of more than 80 percent of the
outstanding Voting Stock, voting together as a single class, will be
required to alter, amend or repeal any of these conflict of interest or
corporate opportunity provisions in a manner adverse to the interests of
AMR.
RIGHTS TO PURCHASE SECURITIES AND OTHER PROPERTY
Our certificate of incorporation authorizes our board of directors
to create and issue rights entitling their holders to purchase shares of
capital stock or other securities or property from us. Our board of
directors will determine the times at which and terms upon which those
rights are to be issued. Our board of directors has authority to determine,
among other things:
o the purchase price of the capital stock to be purchased upon
exercise of those rights;
o provisions relating to the times at which and the
circumstances under which those rights may be exercised or
sold or otherwise transferred, either together with or
separately from, any other stock or other securities of our
company;
o provisions which adjust the number or exercise price of such
rights or amount or nature of the stock receivable upon
exercise of those rights if there is a combination, split or
recapitalization of any of our stock, a change in ownership
of our stock or other securities or a reorganization, merger,
consolidation, sale of assets or other event relating to our
company or our stock, and provisions restricting our ability
to enter into any such transaction absent an assumption by
the other party or parties to the transaction of our
obligations under those rights;
o provisions which deny the holder of a specified percentage of
our outstanding securities the right to exercise those rights
and cause those rights held by that holder to become void;
o provisions which permit us to redeem or exchange those
rights; and
o the appointment of the rights agent with respect to those
rights.
LISTING
Our Class A common stock trades on the New York Stock Exchange
under the symbol "TSG." We will list any shares of our Class A common stock
sold under this prospectus on the New York Stock Exchange.
TRANSFER AGENT AND REGISTRAR
The transfer agent and registrar for our common stock is Bank One
Trust Company, NA.
DESCRIPTION OF STOCK PURCHASE CONTRACTS AND STOCK PURCHASE UNITS
We may issue stock purchase contracts, including contracts that
would require holders to purchase from us and for us to sell to them, a
specified number of shares of our Class A common stock or preferred stock
at a future date or dates. The price per share of Class A common stock and
number of shares of Class A common stock may be fixed at the time the stock
purchase contracts are issued or may be determined by reference to a
specific formula set forth in the stock purchase contracts. We may issue
the stock purchase contracts separately or as part of stock purchase units
consisting of a stock purchase contract and debt securities, preferred
stock or U.S. Treasury securities, that secure the holders' obligations to
purchase our Class A common stock or preferred stock under the stock
purchase contracts. The stock purchase contracts may require us to make
periodic payments to the holders of the stock purchase units or vice versa,
and those payments may be unsecured or prefunded on some basis. The stock
purchase contracts may require holders to secure their obligations under
the stock purchase contracts in a specified manner.
We will describe the terms of any stock purchase contracts or
stock purchase units that we offer under this prospectus in a prospectus
supplement. The description in the prospectus supplement will not
necessarily be complete and will be qualified in its entirety by reference
to the stock purchase contracts or stock purchase units.
DESCRIPTION OF DEBT SECURITIES
The following description summarizes some of the general terms and
conditions of the debt securities that we may issue under this prospectus.
We will describe the particular terms of any debt securities that we offer
and the extent to which the general provisions below will apply to those
debt securities in a prospectus supplement relating to those debt
securities.
We will issue these debt securities under an indenture. SunTrust
Bank will serve as the trustee under the indenture. The terms of the debt
securities will include those stated in the indenture and those made part
of the indenture by reference to the Trust Indenture Act of 1939, as
amended. The debt securities will be subject to all those terms, and we
refer the holders of the debt securities to the indenture and the Trust
Indenture Act for a statement of those terms. Unless we otherwise indicate,
capitalized terms have the meanings given them in the indenture.
The applicable prospectus supplement will specify whether the debt
securities we issue will be senior, senior subordinated or subordinated
(including, if applicable, junior subordinated) debt. The debt securities
may be convertible into shares of our preferred stock or Class A common
stock or other securities or may be issued as part of units of debt
securities and other securities that we may offer under this prospectus. If
we issue debt securities as part of units consisting of debt securities and
other securities we may issue under this prospectus or in exchange for
shares of our preferred stock, we will describe any applicable material
federal income tax consequences to holders in the applicable prospectus
supplement.
The following summary of various provisions of the indenture and
the debt securities is not complete.
GENERAL
The indenture will not limit the amount of additional indebtedness
that we or any of our subsidiaries may incur, except as we may provide in
the applicable prospectus supplement. The debt securities will be senior or
subordinated obligations as described in the applicable prospectus
supplement.
We will indicate in the applicable prospectus supplement the
following terms of and information concerning any debt securities we issue
(to the extent those terms apply to those debt securities and have not been
otherwise described):
o the specific title, aggregate principal amount, denomination
and form;
o the date of maturity (or the method by which that date may be
determined or extended);
o any interest rate or rates, whether fixed or floating (or the
method by which that rate or those rates will be determined);
o the date from which interest will accrue (or the method by
which that date may be determined or reset), the dates on
which that interest will be payable and the record date for
any interest payable on the interest payment date and the
basis upon which interest will be calculated if other than
that of a 360-day year of twelve 30-day months;
o the place or places where the principal of and any premium
and any interest on the debt securities will be payable, or
where those debt securities may be surrendered for
registration of transfer or exchange, if not the corporate
trust office of the trustee for those debt securities;
o the portion of the principal amount of debt securities of the
series payable upon certain declarations of acceleration or
the method by which that portion shall be determined;
o the denominations and the currency, currencies, currency
units or composite currencies in which the debt securities
will be issuable;
o the currency, currencies, currency units or composite
currencies in which payments on the debt securities will be
made, if not U.S. dollars;
o whether the debt securities are senior debt securities or
subordinated debt securities, and if subordinated debt
securities, the terms of the subordination;
o any redemption, repayment or sinking fund provisions,
including the period or periods within which, the currency,
currencies, currency units or composite currencies in which
and the other terms and conditions upon which we may redeem
the debt securities;
o the ability of a holder of a debt security to renew or extend
the maturity of all or any portion of a debt security;
o whether the debt securities are convertible into or
exchangeable for our common stock or preferred stock or other
securities and the terms of the security into which they are
convertible or exchangeable (see "Description of Capital
Stock"), the conversion price or exchange ratio, other terms
related to conversion and exchange and any anti-dilution
protections;
o whether the debt securities will be sold as part of units
consisting of debt securities and other securities that we
may offer under this prospectus;
o if the amount of payments of principal of or any premium or
interest on any debt securities of the series may be
determined by reference to an index, formula or other method,
the index, formula or other method by which those amounts
will be determined;
o whether and by what method the debt securities of the series
(or certain covenants under the related indenture) may be
defeased and discharged by us;
o whether the debt securities of the series shall be issued in
whole or in part as book-entry securities;
o whether additional debt securities of the series may be
issued following the initial issuance of the debt securities
of the series;
o any applicable material federal income tax consequences; and
o any other material specific terms of the debt securities,
including any material additional events of default or
covenants provided for and any material terms that may be
required by or advisable under applicable laws or
regulations.
PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST
Unless otherwise indicated in an applicable prospectus supplement,
principal of and premium, if any, and interest, if any, on the debt
securities will be payable, and the debt securities will be exchangeable
and transfers of debt securities will be registrable, at the office of the
trustee at 25 Park Place, N.E., 24th Floor, Atlanta, Georgia 30303-2900. At
our option, however, payment of interest may be made by:
o wire transfer on the date of payment in immediately available
federal funds or next day funds to an account specified by
written notice to the trustee from any holder of debt
securities;
o any similar manner that the holder may designate in writing
to the trustee; or
o check mailed to the address of the holder as it appears in
the security register.
Any payment of principal and premium, if any, and interest, if
any, required to be made on a day that is not a business day need not be
made on that day, but may be made on the next succeeding business day with
the same force and effect as if made on the non-business day. No interest
will accrue for the period from and after the non-business day.
Unless otherwise indicated in the prospectus supplement relating
to the particular series of debt securities, we will issue the debt
securities only in fully registered form, without coupons, in denominations
of $1,000 or any multiple of $1,000. We will not require a service charge
for any transfer or exchange of the debt securities, but we may require
payment of a sum sufficient to cover any tax or other governmental charge
payable in connection with any transfer or exchange.
ORIGINAL ISSUE DISCOUNT SECURITIES
Debt securities may be issued under the indenture as original
issue discount securities to be offered and sold at a substantial discount
from their stated principal amount. An original issue discount security
under the indenture includes any security which provides for an amount less
than its principal amount to be due and payable upon a declaration of
acceleration upon the occurrence of an event of default. In addition, under
regulations of the U.S. Treasury Department it is possible that debt
securities which are offered and sold at their stated principal amount
would, under certain circumstances, be treated as issued at an original
issue discount for federal income tax purposes, and special rules may apply
to debt securities and warrants which are considered to be issued as
"investment units". Federal income tax consequences and other special
considerations applicable to any such original issue discount securities,
or other debt securities treated as issued at an original issue discount,
and to "investment units" will be described in the applicable prospectus
supplement.
BOOK-ENTRY DEBT SECURITIES
The debt securities of a series may be issued in the form of one
or more global securities that will be deposited with a depository or its
nominee identified in the prospectus supplement relating to the debt
securities. In this case, one or more global securities will be issued in a
denomination or total denominations equal to the portion of the total
principal amount of outstanding debt securities to be represented by the
global security or securities. Unless and until it is exchanged in whole or
in part for debt securities in definitive registered form, a global
security may not be registered for transfer or exchange except as a whole
by the depository for the global security to a nominee of the depository
and except in the circumstances described in the prospectus supplement
relating to the debt securities. We will describe in the applicable
prospectus supplement the terms of any depository arrangement and the
rights and limitations of owners of beneficial interests in any global debt
security.
CERTAIN COVENANTS OF SABRE
RESTRICTIONS ON SECURED DEBT
Unless otherwise provided in the prospectus supplement with
respect to any series of the debt securities, if Sabre or any domestic
subsidiary incurs, issues, assumes or guarantees any indebtedness for
borrowed money represented by notes, bonds, debentures or other similar
evidences of indebtedness, secured by a mortgage, pledge or other lien on
any principal domestic property or on any shares of stock or debt of any
domestic subsidiary, Sabre will secure, or cause its domestic subsidiary to
secure, the debt securities equally and ratably with, or prior to, that
indebtedness, so long as that indebtedness is to be secured, unless after
giving effect to it the aggregate amount of all secured indebtedness,
together with all attributable debt in respect of sale and leaseback
transactions involving principal domestic properties, would not exceed 15%
of Sabre's consolidated net assets. This restriction will not apply to, and
there shall be excluded in computing secured indebtedness for the purpose
of this restriction, indebtedness secured by:
o mortgages on property of, or on any shares of stock or debt
of, any corporation existing at the time that corporation
becomes a domestic subsidiary; provided that such mortgages
or liens are not incurred in anticipation of such corporation
becoming a domestic subsidiary;
o mortgages in favor of Sabre or any domestic subsidiary;
o mortgages in favor of U.S. or foreign governmental bodies to
secure partial, progress, advance or other payments;
o mortgages on property, shares of stock or debt existing at
the time of acquisition, including acquisition through merger
or consolidation, purchase money mortgages and construction
cost mortgages existing at or incurred within 120 days of the
time of acquisition;
o mortgages existing on the first date on which the debt
security is authenticated by the trustee;
o mortgages incurred in connection with pollution control,
industrial revenue or similar financings; and
o any extension, renewal or replacement of any debt secured by
any mortgage referred to in the foregoing list, inclusive;
provided that the principal amount of debt secured by such
mortgage shall not be increased.
RESTRICTIONS ON SALES AND LEASEBACKS
Unless otherwise provided in the prospectus supplement with
respect to any series of the debt securities, neither Sabre nor any
domestic subsidiary may enter into any sale and leaseback transaction
involving any principal domestic property, the acquisition or completion of
construction and commencement of full operation of which has occurred more
than 120 days prior thereto, unless:
o Sabre or the domestic subsidiary could incur a mortgage on
the property under the restrictions described above under
"Restrictions on Secured Debt" in an amount equal to the
attributable debt with respect to the sale and leaseback
transaction without equally and ratably securing the debt
securities; or
o Sabre, within 120 days after the sale or transfer by Sabre or
any domestic subsidiary, applies to the purchase of other
property that constitutes a principal domestic property or
the retirement of Sabre's or any domestic subsidiary's funded
debt, which is defined as indebtedness for borrowed money
having a maturity of, or by its terms extendible or renewable
for, a period of more than 12 months after the date of
determination of the amount, an amount equal to the greater
of:
(1) the net proceeds of the sale of the principal domestic
property sold and leased under such arrangement; or
(2) the attributable debt with respect to such sale and
leaseback transaction.
The following are the meanings of terms that are important in
understanding the restrictive covenants previously described:
o "attributable debt" means, in connection with a sale and
leaseback transaction involving a lease with an original term
of more than 12 months, (1) the present value of the total
net amount of rent required to be paid under such lease
during the remaining term of the lease (including any renewal
term or period for which such lease has been extended),
discounted at the rate of interest set forth or implicit in
the terms of such lease or, if not practicable to determine
such a rate, the weighted average interest rate per year
borne by the debt securities of each series outstanding under
the indenture compounded semi-annually, or (2) if the
obligation with respect to such sale and leaseback
transaction is required to be classified and accounted for as
a capitalized lease for financial reporting purposes in
accordance with generally accepted accounting principles, the
amount equal to the capitalized amount of such obligation
determined in accordance with generally accepted accounting
principles and included in the financial statements of the
lessee.
o "consolidated net assets" means the aggregate amount of
assets, less reserves and other deductible items, after
deducting current liabilities, as shown on Sabre's most
recent consolidated balance sheet and prepared in accordance
with generally accepted accounting principles.
o "domestic subsidiary" means a subsidiary of Sabre which owns
a principal domestic property and transacts substantially all
of its business or maintains substantially all of its
property within the United States, excluding its territories,
possessions and Puerto Rico. The term does not include any
subsidiary which is engaged primarily in financing operations
outside of the United States or in leasing personal property
or financing inventory, receivables or other property.
o "principal domestic property" means any building, structure
or other facility, together with the land on which it is
erected and fixtures comprising a part of it, used primarily
for information processing, research or housing hardware or
software required for information processing, located in the
United States, excluding its territories, possessions and
Puerto Rico, owned or leased by Sabre or one of Sabre's
subsidiaries and having a net book value in excess of 1% of
Sabre's consolidated net assets, other than any such
building, structure or other facility or a portion which
Sabre's principal executive officer, president and principal
financial officer determine in good faith is not of material
importance to the total business conducted or assets owned by
Sabre and its subsidiaries as an entirety.
o "subsidiary" means any corporation, association or other
business entity of which more than 50% of the outstanding
Voting Interests is owned directly or indirectly by Sabre or
by one or more other subsidiaries or by Sabre and one or more
subsidiaries.
o "Voting Interests" means, with respect to any corporation,
association or other business entity (each, a "person"), any
and all shares, interests, participations or other
equivalents in equity of such person, ordinarily having the
power to vote for the election of directors, managers or
other voting members of the governing body of such person.
REDEMPTION
If and to the extent we provide in the applicable prospectus
supplement, we will have the right to redeem the debt securities, in whole
or from time to time in part, after the date and at the redemption prices
set forth in the applicable prospectus supplement.
EVENTS OF DEFAULT
The indenture defines an event of default for the debt securities
of any series as:
o failure to pay principal (or premium) on any debt security of
that series when due;
o failure to pay interest on any debt security of that series
within 30 days of the date when due;
o failure to deposit any sinking fund payment when due for that
series;
o failure to perform for 90 days after notice any of the other
covenants in the indenture;
o a default with respect to any of our publicly traded
indebtedness in an amount in excess of $50 million, which
default results in the acceleration of that indebtedness and
the indebtedness is not discharged, the default is not cured
or waived or the acceleration is not rescinded within ten
days of the acceleration;
o certain events of bankruptcy, insolvency or reorganization;
and
o any other event of default provided for debt securities of
that series.
The indenture provides that if any event of default affecting
outstanding debt securities of any series occurs and is continuing, either
the trustee or the holders of at least 25% in principal amount of the
outstanding debt securities of that series may declare the principal amount
(or, if the debt securities of that series are original issue discount
securities or indexed securities, the portion of the principal amount of
those debt securities as specified by their terms) of all debt securities
of that series to be due and payable immediately. However, under certain
circumstances the holders of a majority in principal amount of the
outstanding debt securities of that series on behalf of the holders of all
debt securities of that series may annul a declaration and waive past
defaults (except, unless previously cured, a default in payment of
principal of or any premium or any interest on the debt securities of that
series and other specified defaults).
We refer you to the prospectus supplement relating to each series
of debt securities that are original issue discount securities for the
particular provisions regarding acceleration of the maturity of a portion
of the principal amount of those original issue discount securities if an
event of default occurs and continues.
The indenture contains a provision entitling the trustee, subject
to its duty to act with the required standard of care during a default
under any series of debt securities, to be indemnified by the holders of
debt securities of that series before exercising any right or power under
the indenture at the request of the holders of the debt securities of that
series.
The indenture provides that no holder of debt securities of any
series may institute proceedings, judicial or otherwise, to enforce the
indenture except if the trustee fails to act for 60 days after it receives
a written request to enforce the indenture by the holders of at least 25%
in aggregate principal amount of the then outstanding debt securities of
that series and an offer of reasonable indemnity. This provision will not
prevent any holder of debt securities from enforcing payment of the
principal of and any premium and interest on those debt securities when
due. The holders of a majority in aggregate principal amount of the debt
securities of any series outstanding may 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 it with respect to those debt
securities. However, the trustee may refuse to follow any direction that it
determines would be illegal or would conflict with the indenture or involve
it in personal liability or which would unjustly prejudice holders of the
debt securities of that series not joining the proceeding.
The indenture provides that the trustee will, within 90 days after
a default occurs that affects the outstanding debt securities of any
series, give to the holders of those debt securities notice of that
default, unless that default has been cured or waived. Except in the case
of a default in the payment of principal of, or any premium or interest on,
any debt securities or payment of any sinking fund installment, the trustee
will be protected in withholding of that notice if it determines in good
faith that the withholding of that notice is in the interest of the holders
of the debt securities of that series.
We will be required to file with the trustee annually an officers'
certificate as to the absence of certain defaults under the terms of the
indenture.
DEFEASANCE OF DEBT SECURITIES OR SELECTED COVENANTS
DEFEASANCE AND DISCHARGE. Unless we otherwise indicate in the
applicable prospectus supplement, the debt securities of any series will
provide that we will be discharged from all obligations under the debt
securities of that series (except for obligations to register the transfer
or exchange of debt securities of that series, to replace stolen, lost or
mutilated debt securities of that series, to maintain paying agencies and
to hold moneys for payment in trust) once we deposit with the trustee, in
trust, money and/or U.S. government obligations, which through the payment
of interest and principal, will provide a sufficient amount of money to pay
and discharge the principal of (and any premium) and any interest on, and
any mandatory sinking fund payments that apply to, the debt securities of
that series on the stated maturity of those payments. This discharge may
occur only if, among other things, we deliver to the trustee an opinion of
counsel stating that we have received from, or there has been published by,
the IRS a ruling, or there has been a change in tax law, that would cause
the discharge not to be deemed, or result in, a taxable event for the
holders of the debt securities of that series.
DEFEASANCE OF SELECTED COVENANTS. Unless we otherwise provide in
the applicable prospectus supplement, the debt securities of any series
will permit us not to comply with some restrictive covenants, including
those relating to consolidation and merger in the indenture, if we satisfy
certain conditions. We will be able to defease those covenants if, among
other things:
o we deposit with the trustee money and/or U.S. government
obligations, which, through the payment of interest and
principal, will provide a sufficient amount of money to pay
the principal of (and any premium) and any interest on, and
any mandatory sinking fund payments applicable to, the debt
securities of that series on the stated maturity of those
payments; and
o we deliver to the trustee an opinion of counsel stating that
the deposit and related covenant defeasance will not cause
the holders of the debt securities of that series to
recognize income, gain or loss for federal income tax
purposes.
If we elect to defease the covenants of a series of debt
securities and subsequently those debt securities are declared due and
payable because an event of default has occurred, the amount of money
and/or U.S. government obligations on deposit with the trustee will be
sufficient to pay amounts due on those debt securities at their stated
maturity but may not be sufficient to pay amounts due on those debt
securities at the time of the acceleration. However, we will remain liable
for those payments.
We will state in the prospectus supplement for any particular
series of debt securities if any defeasance provisions will apply to those
debt securities.
MODIFICATION OF THE INDENTURE AND WAIVER OF COVENANTS
The indenture permits us and the trustee, with the consent of the
holders of at least a majority in principal amount of outstanding debt
securities of each series affected, to execute supplemental indentures
adding provisions to or changing or eliminating provisions of the indenture
or modifying the rights of the holders of outstanding debt securities of
that series, except that no supplemental indenture may, without the consent
of the holder of each outstanding debt security affected:
o change the stated maturity, or reduce the principal amount,
any premium on or the rate of payment of any interest on, of
any debt security of any series;
o reduce the principal amount of, or the premium, if any, or,
except as otherwise provided in the prospectus supplement,
interest on, any debt security, including in the case of an
original issue discount security the amount payable upon
acceleration of the maturity;
o change the place or currency of payment of principal of,
premium, if any, or interest on any debt security;
o impair the right to institute suit for the enforcement of any
payment on any debt security on or at the stated maturity
thereof, or in the case of redemption, on or after the
redemption date; or
o reduce the percentage in principal amount of outstanding debt
securities of any series, the consent of whose holders is
required for modification or amendment of the indenture or
for waiver of compliance with certain provisions of the
indenture or for waiver of certain defaults.
The indenture also allows us not to comply with certain covenants
in the indenture upon waiver by the holders of a majority in principal
amount of outstanding debt securities of the series affected.
CONSOLIDATION, MERGER AND SALE OF ASSETS
The indenture allows us, without the consent of the holders of any
of the outstanding debt securities, to consolidate with or merge into any
other person or transfer or lease our assets substantially as an entirety
to any person if:
o the successor is a corporation organized under the laws of
any domestic jurisdiction;
o the successor corporation assumes our obligations on the debt
securities and under the indenture; and
o after giving effect to the transaction no event of default,
and no event which, after notice or lapse of time, would
become an event of default, shall have happened and be
continuing.
CONCERNING THE TRUSTEE
SunTrust Bank is the trustee under the indenture. We maintain
banking relationships in the ordinary course of business with the trustee.
The trustee is also a lender under our revolving credit agreement and a
party to certain other financing transactions with us.
GOVERNING LAW
Unless we otherwise specify in the applicable prospectus
supplement, the indenture for the debt securities and the debt securities
will be governed by New York law.
DESCRIPTION OF WARRANTS
We may issue debt warrants for the purchase of debt securities or
Class A common stock warrants for the purchase of our Class A common stock.
Debt warrants and Class A common stock warrants are referred to in this
prospectus collectively as "Securities Warrants." Securities Warrants may
be issued independently or together with any debt securities or Class A
common stock offered by any prospectus supplement and may be attached to or
separate from those debt securities or Class A common stock.
Each series of Securities Warrants will be issued under a separate
warrant agreement to be entered into between us and a bank or trust
company, as warrant agent. The warrant agent will act solely as our agent
in connection with warrant certificates evidencing the Securities Warrants.
The warrant agent will not assume any obligation or relationship of agency
or trust for or with any holders of warrant certificates or beneficial
owners of Securities Warrants.
The following description summarizes the general terms of the form
of warrant agreements and warrant certificates which have been filed as
exhibits to the registration statement of which this prospectus forms a
part. You should read the warrant agreement and warrant certificates for
provisions summarized below and others that may be important to you.
GENERAL
The prospectus supplement relating to a particular series of
warrants will include the specific forms of the series, including, where
applicable, the following:
o the title of the Securities Warrants;
o the offering price;
o the currency or currency units in which the purchase price
for offered Securities Warrants may be payable;
o the title, total principal amount, currency or currency units
and other terms of debt securities purchasable upon exercise
of debt warrants;
o the number of shares of Class A common stock purchasable upon
the exercise of a common stock warrant;
o the redemption or call provisions, if any, applicable to the
Securities Warrants;
o the designation and terms of the debt securities with which
the offered debt warrants are issued and the number of debt
warrants issued with each such debt security;
o the date on and after which the Securities Warrants and the
related debt securities or shares of Class A common stock
will be separately transferable;
o the price and currency or currency units at which the amount
of debt securities or shares of Class A common stock, as the
case may be, may be purchased upon exercise;
o the date on which the right to exercise the Securities
Warrants begins and the date on which the right to exercise
expires (the "expiration date");
o the minimum and maximum amount of Securities Warrants that
may be exercised at any one time;
o the antidilution provisions of the Securities Warrants, if
any;
o United States federal income tax consequences applicable to
that Securities Warrant;
o whether the Securities Warrants represented by the warrant
certificates will be issued in registered or bearer form; and
o any other terms of the Securities Warrants, including terms,
procedures and limitations relating to exchange and exercise
of the Securities Warrants.
TRANSFERS AND EXCHANGE
Warrant certificates may be exchanged for new warrant certificates
of different denominations, may, if in registered form, be presented for
registration of transfer, and may be exercised at the corporate trust
office of the warrant agent. We may specify other offices where these
activities may be conducted in an applicable prospectus supplement. Before
the exercise of any Securities Warrants, holders of the Securities Warrants
will not have any of the rights of holders of the debt securities or Class
A common stock, as applicable, purchasable upon exercise. This means
holders of debt warrants will not have the right to receive payments of
principal, premium, if any, or interest, if any, on the debt securities
purchasable upon exercise or to enforce covenants in the indenture
governing the underlying debt securities. Holders of Class A common stock
warrants will not have the right to receive payments of dividends, if any,
on the Class A common stock purchasable upon such exercise or to exercise
any applicable right to vote.
EXERCISE
Each Securities Warrant will entitle its holder to purchase the
principal amount of debt securities or the number of shares of Class A
common stock at the exercise price that is set forth in, or calculable
from, the applicable prospectus supplement. Holders will be able to
exercise Securities Warrants at any time up to the time on the expiration
date set forth in the applicable prospectus supplement. After that time, or
a later date to which such expiration date may be extended by us,
unexercised Securities Warrants will become void.
Holders will be able to exercise Securities Warrants by delivering
to the warrant agent at its corporate trust office warrant certificates
properly completed and paying the exercise price. As soon as practicable
after such delivery, we will issue and deliver to the indicated holder the
debt securities or shares of Class A common stock issuable upon that
exercise. If fewer than all of the Securities Warrants represented by a
warrant certificate are exercised, we will issue a new warrant certificate
for the remaining number of Securities Warrants.
PLAN OF DISTRIBUTION
We may sell securities issuable under this prospectus to or
through one or more underwriters or dealers and also may sell those
securities directly to institutional investors or other purchasers, or
through agents.
We may distribute the securities periodically in one or more
transactions at a fixed price or prices, which may be changed, or at market
prices prevailing at the time of sale, at prices related to those
prevailing market prices or at negotiated prices.
In connection with the sale of any securities under this
prospectus, underwriters or agents may receive compensation from us or from
purchasers of securities for whom they may act as agents in the form of
discounts, concessions or commissions. Underwriters may sell the securities
to or through dealers, and those dealers may receive compensation in the
form of discounts, concessions or commissions from the underwriters and/or
commissions from the purchasers for whom they may act as agents.
Underwriters, dealers and agents that participate in the distribution of
the securities may be deemed to be underwriters, and any discounts or
commissions received by them from us and any profit on the resale of those
securities by them may be deemed to be underwriting discounts and
commissions under the Securities Act. Any of those underwriters or agents
will be identified, and any compensation received from us will be
described, in the related prospectus supplement.
Under agreements that we may enter into, underwriters and agents
who participate in the distribution of securities issuable under this
prospectus may be entitled to indemnification by us against certain
liabilities, including liabilities under the Securities Act.
If we so indicate in the related prospectus supplement, we will
authorize underwriters or other persons acting as our agents to solicit
offers by some institutions to purchase securities from us under contracts
providing for payment and delivery on a future date. Institutions with whom
we would enter into those contracts include commercial and savings banks,
insurance companies, pension funds, investment companies, educational and
charitable institutions and others, but in all cases those institutions
must be approved by us. The obligations of any purchaser under a contract
will be subject to the condition that the purchase of the securities will
not at the time of delivery be prohibited under the laws of the
jurisdiction to which that purchaser is subject. The underwriters and those
other agents will not have any responsibility as to the validity or
performance of those contracts.
If underwriters or dealers are used in the sale, until the
distribution of the securities is completed, rules of the SEC may limit the
ability of underwriters and some selling group members to bid for and
purchase the securities. As an exception to these rules, underwriters may
engage in some transactions that stabilize the price of the securities.
Those transactions consist of bids or purchases for the purpose of pegging,
fixing or maintaining the price of the securities.
If any underwriters create a short position in the securities in
connection with any offering, that is, if they sell more securities than
are set forth on the cover page of any prospectus supplement accompanying
this prospectus, the underwriters may reduce that short position by
purchasing securities in the open market.
Underwriters may also impose a penalty bid on some selling group
members. This means that if the underwriters purchase securities in the
open market to reduce the underwriters' short position or to stabilize the
price of the securities, they may reclaim the amount of the selling
concession from the selling group members that sold those securities as
part of that offering. In general, purchases of a security for the purpose
of stabilization or to reduce a short position could cause the price of the
security to be higher than it might be in the absence of such purchases.
The imposition of a penalty bid may also affect the price of the securities
to the extent that it discourages resales of the securities.
Some of the underwriters or agents and their associates may engage
in transactions with and perform services for us or our affiliates in the
ordinary course of business.
The securities we sell under this prospectus may or may not be
listed on a national securities exchange (other than our Class A common
stock, which is listed on the New York Stock Exchange). We will list on the
New York Stock Exchange any shares of our Class A common stock sold under a
prospectus supplement to this prospectus, subject to official notice of
issuance. We can not assure you that there will be an active trading market
for any of the securities sold under this prospectus.
LEGAL MATTERS
The validity of the securities issuable under this prospectus will
be passed upon for us by Fried, Frank, Harris, Shriver & Jacobson, a
partnership including professional corporations, New York, New York.
EXPERTS
The consolidated financial statements and schedule appearing in
Sabre's Annual Report (Form 10-K) for the fiscal year ended December 31,
1999 have been audited by Ernst & Young LLP, independent auditors, as set
forth in their report thereon included therein and incorporated herein by
reference. Such consolidated financial statements and schedule are
incorporated herein by reference in reliance upon such report given upon
the authority of such firm as experts in accounting and auditing.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements
and other information with the SEC. You may read and copy any document we
file with the SEC at the SEC's public reference rooms in Washington, D.C.,
New York, New York and Chicago, Illinois. Please call the SEC at
1-800-SEC-0330 for further information on the public reference rooms. Our
SEC filings are also available to the public at the SEC's web site at
http://www.sec.gov and at the public reference room of the New York Stock
Exchange, 20 Broad Street, New York, New York.
The SEC allows us to "incorporate by reference" the information we
file with it, which means that we can disclose important information to you
by referring you to those documents. The information incorporated by
reference is considered to be part of this prospectus, and later
information that we file with the SEC will automatically update and
supersede this information. We incorporate by reference the documents
listed below and any future filings we make with the SEC under Section
13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934 until all
the securities offered under this prospectus are sold. This prospectus is
part of the registration statement we filed with the SEC.
1. Annual Report on Form 10-K for the year ended December 31,
1999.
2. Current Report on Form 8-K, filed February 9, 2000.
3. Current Report on Form 8-K, filed March 6, 2000.
4. The section entitled "Proposal 2 - Amendments to the
Corporation's Restated Certificate of Incorporation" in the
Preliminary Proxy Statement on Schedule 14A, filed March 28,
2000
You may request a copy of these filings, at no cost, by writing or
telephoning us at Sabre Holdings Corporation, 4255 Amon Carter Boulevard,
Fort Worth, Texas 76155, telephone (817) 963-6400, Attention: Investor
Relations.
FORWARD-LOOKING STATEMENTS
This prospectus includes "forward-looking statements" within the
meaning of the Private Securities Litigation Reform Act of 1995. All
statements other than statements of historical fact contained or
incorporated by reference in this prospectus, including statements
regarding our competitive strengths, business strategy, future financial
position, budgets, projected costs and plans and objectives of management
are forward-looking statements. In addition, forward-looking statements
generally can be identified by the use of forward-looking terminology such
as "may," "will," "expect," "should," "intend," "estimate," "anticipate,"
"believe," "continue" or similar terminology. We can give no assurance that
the expectations reflected in forward-looking statements will prove to have
been correct. Our actual results could differ materially from those
anticipated in these forward-looking statements as a result of factors
including those set forth under the "Management's Discussion and Analysis
of Financial Condition and Results of Operations" section and "Sabre
Holdings Corporation Cautionary Statement" incorporated by reference in
this prospectus from our Annual Report on Form 10-K for the year ended
December 31, 1999. All written and oral forward-looking statements
attributable to us are expressly qualified in their entirety by the factors
we disclose that could cause our actual results to differ materially from
our expectations. We undertake no obligation to update publicly or revise
any forward-looking statements.
<PAGE>
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION*
SEC registration fee $ 198,000
Blue sky fees and expenses 6,000
Legal fees and expenses 575,000
Accounting fees and expenses 50,000
Printing and engraving expenses 300,000
Trustees' fees and expenses 4,500
Rating agency fees 593,000
Miscellaneous 123,500
----------------
Total $ 1,850,000
================
- -----------------
* Except for the SEC registration fee and the NASD fee, all of the
foregoing expenses have been estimated.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the General Corporation Law of the State of
Delaware (the "DGCL") provides that a Delaware corporation may indemnify
directors and officers and certain other individuals against expenses
(including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by any such person in
connection with any threatened, pending or completed action, suit or
proceeding (other than an action by or in the right of the corporation) in
which such person is involved because such person is a director or officer
of the corporation, if such person acted in good faith and in a manner that
such person reasonably believed to be in or not opposed to the best
interests of the corporation and, with respect to any criminal action or
proceeding, had no reasonable cause to believe that such person's conduct
was unlawful. No indemnification shall be made to an officer or director or
other qualified individual if such person shall have been adjudged to be
liable to the corporation unless such person acted in good faith and in a
manner that such person reasonably believed to be in or not opposed to the
best interest of the corporation and only to the extent the Court of
Chancery of the State of Delaware or the court in which such action or suit
was brought, determines that despite the adjudication of liability such
person is fairly and reasonably entitled to such indemnification. If such
person is successful on the merits or otherwise in defense of any action,
then Section 145 provides that such person shall be indemnified against
expenses including attorneys' fees actually and reasonably incurred by that
person in connection therewith. Section 102(b)(7) of the DGCL provides that
the liability of a director may not be limited or eliminated for the breach
of such director's duty of loyalty to the corporation or its stockholders,
for such director's intentional acts or omissions not in good faith, for
such director's concurrence in or vote for an unlawful payment of a
dividend or unlawful stock purchase or redemption or for any improper
personal benefit derived by the director from any transaction.
The Bylaws of Sabre Holdings Corporation (the "Company") provide
that the Company will indemnify any person who was or is a party (or is
threatened to be made a party) to any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative, by reason of the fact that he or she is or was or has agreed
to serve at the request of the Company as a director or officer of the
Company, or is or was serving or has agreed to serve at the request of the
Company as a director or officer of another corporation, partnership, joint
venture, trust or other enterprise, or by reason of any action alleged to
have been taken or omitted in such capacity. The Company's Bylaws further
provide that the Company may indemnify any person who was or is a party (or
is threatened to be made a party) to any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative, by reason of the fact that he or she is or was or has agreed
to become an employee or agent of the Company, or is or was serving or has
agreed to serve at the request of the Company as an employee or agent of
another corporation, partnership, joint venture, trust or other enterprise,
or by reason of any action alleged to have been taken or omitted in such
capacity.
The indemnification referred to in the preceding paragraph will be
from and against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by the
indemnitee or on his or her behalf in connection with such action, suit or
proceeding and any appeal therefrom. However, such indemnification will
only be provided if the indemnitee acted in good faith and in a manner he
or she reasonably believed to be in or not opposed to the best interests of
the Company and, with respect to any criminal action, suit or proceeding,
had no reasonable cause to believe his or her conduct was unlawful.
Notwithstanding the preceding two sentences, in the case of an action or
suit by or in the right of the Company to procure a judgment in its favor
(a) the indemnification referred to in this paragraph will be limited to
expenses (including attorneys' fees) actually and reasonably incurred by
such person in the defense or settlement of such action or suit, and (b) no
indemnification will be made in respect of any claim, issue or matter as to
which such person will have been adjudged to be liable to the Company
unless, and only to the extent that, the Delaware Court of Chancery (or the
court in which such action or suit was brought) determines upon application
that, despite the adjudication of liability but in view of all the
circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses which the Delaware Court of Chancery (or such
other court) deems proper. To the extent that a director, officer, employee
or agent of the Company has been successful on the merits or otherwise in
defense of any action, suit or proceeding referred to above or in defense
of any claim, issue or matter therein, he or she will be indemnified
against expenses (including attorneys' fees) actually and reasonably
incurred by him or her in connection therewith. Expenses incurred by a
director or officer in defending a civil or criminal action, suit or
proceeding will be paid by the Company in advance of the final disposition
of such action, suit or proceeding upon receipt of an undertaking by or on
behalf of the director or officer to repay such amount if it will
ultimately be determined that he or she is not entitled to be indemnified
by the Company. Such expenses incurred by other employees and agents may be
so paid upon such terms and conditions, if any, as the Company's Board of
Directors deems appropriate.
The indemnification described in the preceding two paragraphs will
not be deemed exclusive of any other rights to which those indemnified may
be entitled under any Bylaw of the Company, agreement, vote of stockholders
or disinterested directors or otherwise, both as to action in his or her
official capacity and as to action in another capacity while holding such
office, will continue as to a person who has ceased to be a director,
officer, employee or agent and will inure to the benefit of the heirs,
executors and administrators of such a person. The Company will purchase
and maintain insurance on behalf of any person who is or was or has agreed
to serve at the request of the Company as a director or officer of the
Company, or is or was serving at the request of the Company as a director
or officer of another corporation, partnership, joint venture, trust or
other enterprise against any liability asserted against, and incurred by,
him or her or on his or her behalf in any such capacity, or arising out of
his or her status as such, whether or not the Company would have the power
to indemnify him or her against such liability under the provisions of the
Company's Bylaws; provided, however, such insurance must be available on
acceptable terms, which determination shall be made by a vote of a majority
of the Company's Board of Directors.
ITEM 16. EXHIBITS
1.1* --Form of Underwriting Agreement (for equity securities)
1.2* --Form of Underwriting Agreement (for debt securities)
1.3* --Form of Underwriting Agreement (for units consisting
of stock purchase contracts and debt securities)
1.4* --Form of Selling Agency Agreement (for debt securities)
4.1 --Restated Certificate of Incorporation of the Company
(incorporated by reference to Exhibit 3.1 to the
Company's Registration Statement on Form S-1
(Registration No. 333-09747))
4.2 --Certificate of Amendment to Certificate of
Incorporation of the Company (incorporated by
reference to Exhibit 3.2 to the Company's Quarterly
Report on Form 10-Q for the quarter ended June 30,
1999)
4.3 --Restated Bylaws of the Company (incorporated by
reference to Exhibit 4.1 to the Company's Registration
Statement on Form S-1 (Registration No. 333-09747))
4.4 --Registration Rights Agreement between the Company and
AMR Corporation (incorporated by reference to the
exhibits to the Company's Registration Statement on
Form S-1 (Registration No. 333-09747))
4.5** --Specimen Certificate representing Class A Common Stock
4.6 --Form of Indenture between the Company and SunTrust
Bank, as trustee, providing for the issuance of debt
securities
5.1 --Opinion of Fried, Frank, Harris, Shriver & Jacobson,
as to the legality of the securities being offered
12.1 --Statement regarding computation of ratio of earnings
to fixed charges
23.1 --Consent of Ernst & Young LLP
23.2 --Consent of Fried, Frank, Harris, Shriver & Jacobson
(included in Exhibit 5.1)
23.3 --Consent of Fried, Frank, Harris, Shriver & Jacobson
(included in Exhibit 8.1)
24** --Powers of Attorney relating to subsequent amendments
25.1 --Form T-1 Statement of Eligibility Under Trust
Indenture Act of 1939 of SunTrust Bank relating to
debt securities (separately bound)
- --------------------
* To be filed as an exhibit to a Current Report on Form 8-K of the
Company at such time as an underwritten issuance of such securities
is contemplated.
** Previously filed.
ITEM 17. UNDERTAKINGS
(a) 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;
(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.
Notwithstanding the foregoing, any increase or decrease
in volume of securities offered (if the total dollar
value of securities offered would not exceed that which
was registered) and any deviation from the low or high
end of the estimated maximum offering range may be
reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the aggregate,
the changes in volume and price represent no more than a
20% change in the maximum aggregate offering price set
forth in the "Calculation of Registration Fee" table in
the effective Registration Statement; and
(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 paragraphs (a)(1)(i) and
(a)(1)(ii) above do not apply if the Registration
Statement is on Form S-3 and 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 that are incorporated by
reference in this Registration Statement.
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, each such post-effective
amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and
the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(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.
(b) The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act of 1933,
each filing of the Registrant's annual report pursuant to Section 13(a) or
Section 15(d) of the Securities Exchange Act of 1934 that is incorporated
by reference in this Registration Statement shall be deemed to be a new
registration statement relating to the securities offered herein, and the
offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the Registrant pursuant to the foregoing provisions,
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
the payment by the Registrant of expenses incurred or paid by a director,
officer or controlling person of the Registrant in the successful defense
of any action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
Registrants will, unless in the opinion of their counsel the matter has
been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by them is against
public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
(d) The undersigned Registrant hereby undertake that:
(1) For purposes of determining any liability under the
Securities Act of 1933, 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 Securities Act
shall be deemed to be part of this Registration Statement
as of the time it was declared effective.
(2) For the purpose of determining any liability under the
Securities Act of 1933, 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.
(e) The undersigned Registrant hereby undertakes to file an
application for the purpose of determining the eligibility of the trustee
to act under subsection (a) of Section 310 of the Trust Indenture Act
("Act") in accordance with the rules and regulations prescribed by the
Commission under Section 305(b)(2) of the Act.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Sabre
Holdings Corporation certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on Form S-3 and has duly
caused this Amendment No. 1 to the Registration Statement (File No.
333-32106) to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Fort Worth, State of Texas, on the 17th day of
April, 2000.
SABRE HOLDINGS CORPORATION
By: /s/ Jeffery M. Jackson
-----------------------------
Jeffery M. Jackson
Executive Vice President,
Chief Financial Officer and
Treasurer
Pursuant to the requirements of the Securities Act of 1933, this
Amendment No. 1 to the Registration Statement (File No. 333-32106) has been
signed by the following persons in the capacities and on the dates
indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
* President and Chief Executive April 17, 2000
- ---------------------------------- Officer (Principal Executive
William J. Hannigan Officer); Director
/s/ Jeffery M. Jackson Executive Vice President, Chief April 17, 2000
- ---------------------------------- Financial Officer and Treasurer
Jeffery M. Jackson (Principal Financial and
Accounting Officer)
* Director April 17, 2000
- ----------------------------------
Edward A. Brennan
* Director April 17, 2000
- ----------------------------------
Paul C. Ely, Jr.
* Director April 17, 2000
- ----------------------------------
Dee J. Kelly
* Director April 17, 2000
- ----------------------------------
Bob L. Martin
* Director April 17, 2000
- ----------------------------------
Glenn W. Marschel, Jr.
* Director April 17, 2000
- ----------------------------------
Richard L. Thomas
*
/s/ Jeffery M. Jackson Attorney-in-Fact April 17, 2000
- ----------------------------------
Jeffery M. Jackson
</TABLE>
<PAGE>
1.1* --Form of Underwriting Agreement (for equity securities)
1.2* --Form of Underwriting Agreement (for debt securities)
1.3* --Form of Underwriting Agreement (for units consisting
of stock purchase contracts and debt securities)
1.4* --Form of Selling Agency Agreement (for debt securities)
4.1 --Restated Certificate of Incorporation of the Company
(incorporated by reference to Exhibit 3.1 to the
Company's Registration Statement on Form S-1
(Registration No. 333-09747))
4.2 --Certificate of Amendment to Certificate of
Incorporation of the Company (incorporated by
reference to Exhibit 3.2 to the Company's Quarterly
Report on Form 10-Q for the quarter ended June 30,
1999)
4.3 --Restated Bylaws of the Company (incorporated by
reference to Exhibit 4.1 to the Company's Registration
Statement on Form S-1 (Registration No. 333-09747))
4.4 --Registration Rights Agreement between the Company and
AMR Corporation (incorporated by reference to the
exhibits to the Company's Registration Statement on
Form S-1 (Registration No. 333-09747))
4.5** --Specimen Certificate representing Class A Common Stock
4.6 --Form of Indenture between the Company and SunTrust
Bank, as trustee, providing for the issuance of debt
securities
5.1 --Opinion of Fried, Frank, Harris, Shriver & Jacobson,
as to the legality of the securities being offered
12.1 --Statement regarding computation of ratio of earnings
to fixed charges
23.1 --Consent of Ernst & Young LLP
23.2 --Consent of Fried, Frank, Harris, Shriver & Jacobson
(included in Exhibit 5.1)
23.3 --Consent of Fried, Frank, Harris, Shriver & Jacobson
(included in Exhibit 8.1)
24** --Powers of Attorney relating to subsequent amendments
25.1 --Form T-1 Statement of Eligibility Under Trust
Indenture Act of 1939 of SunTrust Bank relating to
debt securities (separately bound)
- --------------------
* To be filed as an exhibit to a Current Report on Form 8-K of the
Company at such time as an underwritten issuance of such securities
is contemplated.
** Previously filed.
===========================================================================
Sabre Holdings Corporation
TO
SunTrust Bank
as Trustee
---------
INDENTURE
Dated as of [ ], 2000
Providing for Issuance of
Debt Securities in Series
===========================================================================
<PAGE>
Sabre Holdings Corporation
Certain Sections of this Indenture relating to Sections 310
through 318, inclusive, of the Trust Indenture Act of 1939:
Trust Indenture
Act Section Indenture Section
----------- -----------------
(S) 310(a)(1) ..........................................................609
(a)(2) .........................................................609
(a)(3) ..............................................Not Applicable
(a)(4) ..............................................Not Applicable
(b) ........................................................608,610
(S) 311(a) .....................................................613
(b) ............................................................613
(S) 312(a) ......................................................701, 702(a)
(b) .........................................................702(b)
(c) .........................................................702(c)
(S) 313(a) ...........................................................703(a)
(b) .........................................................703(a)
(c) .........................................................703(a)
(d) .........................................................703(b)
(S) 314(a) ..............................................................704
(a)(4) .....................................................101,704
(b) .................................................Not Applicable
(c)(1) .........................................................102
(c)(2) .........................................................102
(c)(3) ..............................................Not Applicable
(d) .................................................Not Applicable
(e) ............................................................102
(S) 315(a) ..............................................................601
(b) ............................................................602
(c) ............................................................601
(d) ............................................................601
(e) ............................................................514
(S) 316(a) ..............................................................101
(a)(1)(A) ..................................................502,512
(a)(1)(B) ......................................................513
(a)(2)...............................................Not Applicable
(b).............................................................508
(c)..........................................................104(c)
(S) 317(a)(1)............................................................503
(a)(2)..........................................................504
(b)............................................................1003
(S) 318(a)...............................................................107
- ------------------
NOTE: This reconciliation and tie shall not, for any purpose, be deemed
to be a part of the Indenture.
<PAGE>
TABLE OF CONTENTS
Page
----
Article One
Definitions and Other Provisions of General Application
Section 101. Definitions.................................................1
Section 102. Compliance Certificates and Opinions........................8
Section 103. Form of Documents Delivered to Trustee......................8
Section 104. Acts of Holders; Record Dates...............................9
Section 105. Notices, Etc...............................................10
Section 106. Notice to Holders; Waiver..................................11
Section 107. Conflict with Trust Indenture Act..........................11
Section 108. Effect of Headings and Table of Contents...................11
Section 109. Successors and Assigns.....................................12
Section 110. Separability Clause........................................12
Section 111. Benefits of Indenture......................................12
Section 112. Governing Law..............................................12
Section 113. Legal Holidays.............................................12
Article Two
Security Forms
Section 201. Forms Generally...........................................12
Section 202. Form of Face of Security..................................13
Section 203. Form of Reverse of Security...............................15
Section 204. Additional Provisions Required in Book-Entry Security.....19
Section 205. Form of Trustee's Certificate of Authentication...........19
Article Three
The Securities
Section 301. Amount Unlimited; Issuable in Series......................20
Section 302. Denominations.............................................23
Section 303. Execution, Authentication, Delivery and Dating............23
Section 304. Temporary Securities......................................26
Section 305. Registration; Registration of Transfer and Exchange.......26
Section 306. Mutilated, Destroyed, Lost and Stolen Securities..........28
Section 307. Payment of Interest; Interest Rights Preserved............29
Section 308. Persons Deemed Owners.....................................30
Section 309. Cancellation..............................................30
Section 310. Computation of Interest...................................31
Section 311. CUSIP Numbers.............................................31
Article Four
Satisfaction and Discharge
Section 401. Satisfaction and Discharge of Indenture...................31
Section 402. Application of Trust Money................................33
Article Five
Remedies
Section 501. Events of Default.........................................33
Section 502. Acceleration of Maturity; Rescission and
Annulment.................................................35
Section 503. Collection of Indebtedness and Suits for
Enforcement by Trustee....................................37
Section 504. Trustee May File Proofs of Claim..........................37
Section 505. Trustee May Enforce Claims Without Possession
of Securities.............................................38
Section 506. Application of Money Collected............................38
Section 507. Limitation on Suits.......................................38
Section 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest......................................39
Section 509. Restoration of Rights and Remedies........................39
Section 510. Rights and Remedies Cumulative............................40
Section 511. Delay of Omission Not Waiver..............................40
Section 512. Control by Holders........................................40
Section 513. Waiver of Past Defaults...................................41
Section 514. Undertaking for Costs.....................................41
Article Six
The Trustee
Section 601. Certain Duties and Responsibilities.......................41
Section 602. Notice of Defaults........................................42
Section 603. Certain Rights of Trustee.................................42
Section 604. Not Responsible for Recitals or Issuance of
Securities................................................43
Section 605. May Hold Securities and Serve as Trustee Under
Other Indentures..........................................44
Section 606. Money Held in Trust.......................................44
Section 607. Compensation and Reimbursement............................44
Section 608. Disqualification; Conflicting Interests...................45
Section 609. Corporate Trustee Required; Eligibility...................45
Section 610. Resignation and Removal; Appointment of Successor.........45
Section 611. Acceptance of Appointment by Successor....................47
Section 612. Merger, Conversion, Consolidation or Succession
to Business...............................................49
Section 613. Preferential Collection of Claims Against Company.........49
Section 614. Investment of Certain Payments Held by the Trustee........49
Section 615. Appointment of Authenticating Agent.......................50
Article Seven
Holders' Lists and Reports by Trustee and Company
Section 701. Company to Furnish Trustee Names and Addresses of
Holders...................................................52
Section 702. Preservation of Information; Communications to
Holders...................................................52
Section 703. Reports by Trustee........................................52
Section 704. Reports by Company........................................53
Article Eight
Consolidation, Merger, Conveyance, Transfer or Lease
Section 801. Company May Consolidate, Etc..............................53
Section 802. Successor Substituted.....................................54
Section 803. Officers' Certificate and Opinion of Counsel.............54
Article Nine
Supplemental Indentures
Section 901. Supplemental Indentures Without Consent of Holders........55
Section 902. Supplemental Indentures with Consent of Holders...........56
Section 903. Execution of Supplemental Indentures......................57
Section 904. Effect of Supplemental Indentures.........................58
Section 905. Conformity with Trust Indenture Act.......................58
Section 906. Reference in Securities to Supplemental Indentures........58
Article Ten
Covenants
Section 1001. Payment of Principal, Premium and Interest................58
Section 1002. Maintenance of Office or Agency...........................58
Section 1003. Money for Securities Payments to Be Held in Trust.........59
Section 1004. Corporate Existence.......................................60
Section 1005. Restrictions on Secured Debt..............................61
Section 1006. Restrictions on Sale and Leaseback Transactions...........61
Section 1007. Waiver of Certain Covenants...............................62
Section 1008. Compliance Certificate....................................62
Article Eleven
Redemption of Securities
Section 1101. Applicability of Article..................................63
Section 1102. Election to Redeem; Notice to Trustee.....................63
Section 1103. Selection by Trustee of Securities to Be Redeemed.........63
Section 1104. Notice of Redemption......................................64
Section 1105. Deposit of Redemption Price...............................65
Section 1106. Securities Payable on Redemption Date.....................65
Section 1107. Securities Redeemed in Part...............................65
Article Twelve
Sinking Funds
Section 1201. Applicability of Article..................................66
Section 1202. Satisfaction of Sinking Fund Payments with Securities.....66
Section 1203. Redemption of Securities for Sinking Fund.................66
Article Thirteen
Defeasance and Covenant Defeasance
Section 1301. Applicability of Article; Company's Option to Effect
Defeasance or Covenant Defeasance.........................67
Section 1302. Defeasance and Discharge..................................67
Section 1303. Covenant Defeasance.......................................68
Section 1304. Conditions to Defeasance or Covenant Defeasance...........68
Section 1305. Deposited Money and U.S. Government Obligations to be
Held in Trust; Other Miscellaneous Provisions............71
Section 1306. Reinstatement.............................................72
Section 1307. Qualifying Trustee........................................72
Article Fourteen
Immunity of Incorporators, Stockholders, Officers, Directors and Employees
Section 1401. Exemption from Individual Liability.......................72
NOTE: This table of contents shall not, for any purpose, be deemed to
be a part of the Indenture.
<PAGE>
INDENTURE, dated as of [ ], 2000, between Sabre Holdings
Corporation, a corporation duly organized and existing under the laws of
the State of Delaware (herein called the "Company"), having its principal
office at 4255 Amon Carter Boulevard, Fort Worth, Texas 76155, and SunTrust
Bank, a Georgia banking corporation, as Trustee (herein called the
"Trustee").
RECITALS 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
debentures, notes or other evidences of indebtedness (herein called the
"Securities"), to be issued in one or more series as provided in this
Indenture.
All 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 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:
(1) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural
as well as the singular;
(2) 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;
(3) all accounting terms not otherwise defined herein have
the meanings assigned to them in accordance with
generally accepted accounting principles, and, except
as otherwise herein expressly provided, the term
"generally accepted accounting principles" with respect
to any computation required or permitted hereunder
shall mean such accounting principles as are generally
accepted at the date of such computation in the United
States of America; and
(4) unless the context otherwise requires, any reference to
an "Article" or a "Section" refers to an Article or a
Section, as the case may be, of this Indenture; and
(5) 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.
"Act", when used with respect to any Holder, has the meaning
specified in Section 104.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified Person. For the purposes of
this definition, "control" when used with respect to any specified 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.
"Attributable Debt" means , in connection with a sale and
leaseback transaction involving a lease with an original term of more than
12 months, (i) the present value of the total net amount of rent required
to be paid under such lease during the remaining term of the lease
(including any renewal term or period for which such lease has been
extended), discounted at the rate of interest set forth or implicit in the
terms of such lease or, if not practicable to determine such a rate, the
weighted average interest rate per year borne by the debt securities of
each series outstanding under this Indenture compounded semi-annually, or
(ii) if the obligation with respect to such sale and leaseback transaction
is required to be classified and accounted for as a capitalized lease for
financial reporting purposes in accordance with generally accepted
accounting principles, the amount equal to the capitalized amount of such
obligation determined in accordance with generally accepted accounting
principles and included in the financial statements of the lessee.
"Authenticating Agent" means any Person authorized by the Trustee
pursuant to Section 615 to act on behalf of the Trustee to authenticate
Securities of one or more series.
"Board of Directors" means either the board of directors of the
Company or any duly authorized committee of that board.
"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.
"Book-Entry Security" means a Security in the form prescribed in
Section 204 evidencing all or part of a series of Securities, issued to the
Depositary for such series or its nominee, and registered in the name of
such Depositary or such nominee.
"Business Day", when used with respect to any Place of Payment,
means each Monday, Tuesday, Wednesday, Thursday and Friday which is not a
day on which banking institutions in that Place of Payment are authorized
or obligated by law or executive order to close.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Securities Exchange Act of
1934, or, if at any time after the execution of this instrument 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 instrument until a successor Person shall have become
such pursuant to the applicable provisions of this Indenture, and
thereafter "Company" shall mean such successor Person.
"Company Request" or "Company Order" means a written request or
order signed in the name of the Company by its Chairman of the Board, its
Chief Executive Officer, its President, its Chief Financial Officer, a Vice
Chairman of the Board or a Vice President, and by its Treasurer, an
Assistant Treasurer, its Controller, an Assistant Controller, its Secretary
or an Assistant Secretary, and delivered to the Trustee.
"Consolidated Net Assets" means the aggregate amount of assets,
less reserves and other deductible items, after deducting current
liabilities, as shown on Company's most recent consolidated balance sheet
and prepared in accordance with generally accepted accounting principles.
"Corporate Trust Office" means the principal office of the
Trustee at which at any particular time its corporate trust business shall
be principally administered, which office at the date of original execution
of this Indenture is located at 25 Park Place, N.E., 24th Floor, Atlanta,
Georgia 30303-2900, except that, with respect to presentation of the
Securities for payment or registration of transfers or exchanges and the
location of the register, such term means the office or agency of the
Trustee at which at any particular time its corporate agency business shall
be conducted.
"Defaulted Interest" has the meaning specified in Section 307.
"Depositary" means, with respect to the Securities of any series
issuable or issued in whole or in part in the form of one or more
Book-Entry Securities, the Person designated as Depositary for such series
by the Company pursuant to Section 301, which Person shall be a clearing
agency registered under the Securities Exchange Act of 1934; and if at any
time there is more than one such Person, "Depositary" as used with respect
to the Securities of any series shall mean the Depositary with respect to
the Securities of such series.
"Domestic Subsidiary" means a subsidiary of the Company which
owns a Principal Domestic Property and transacts substantially all of its
business or maintains substantially all of its property within the United
States, excluding its territories, possessions and Puerto Rico. The term
does not include any subsidiary which is engaged primarily in financing
operations outside of the United States or in leasing personal property or
financing inventory, receivables or other property.
"Event of Default" has the meaning specified in Section 501.
"Holder" means a Person in whose name a Security is registered in
the Security Register.
"Indenture" means this instrument as originally executed or 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, including, for all purposes of this instrument, and any such
supplemental indenture, the provisions of the Trust Indenture Act that are
deemed to be a part of and govern this instrument and any such supplemental
indenture, respectively. The term "Indenture" shall also include the forms
and terms of particular series of Securities established as contemplated by
Section 301.
"Interest", when used with respect to an Original Issue 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.
"Maturity", when used with respect to any Security, means the
date on which the principal of such Security or an installment of principal
becomes due and payable as therein or herein provided, whether at the
Stated Maturity or by declaration of acceleration, call for redemption or
otherwise.
"Officers' Certificate" means a certificate signed by the
Chairman of the Board, the Chief Executive Officer, the President, the
Chief Financial Officer, a Vice Chairman of the Board or a Vice President
and by the Treasurer, an Assistant Treasurer, the Controller, an Assistant
Controller, the Secretary or an Assistant Secretary, of the Company, and
delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may
be counsel for the Company, and who shall be acceptable to the Trustee.
"Original Issue 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 502.
"Outstanding", when used with respect to Securities, means, as of
the date of determination, all Securities theretofore authenticated and
delivered under this Indenture, except:
(i) Securities theretofore canceled by the Trustee or delivered
to the Trustee for cancellation;
(ii) Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Trustee or any
Paying Agent (other than the Company or any of its Affiliates) in trust for
the Holders of such Securities; provided, that if such Securities are to be
redeemed, notice of such redemption has been duly given pursuant to Section
1104 of this Indenture or provision therefor satisfactory to the Trustee
has been made;
(iii) Securities, except to the extent provided in Sections 1302
and 1303, with respect to which the Company has effected defeasance or
covenant defeasance as provided in Article Thirteen; and
(iv) 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 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 the Holders of the requisite
principal amount of the Outstanding Securities have given, made or taken
any request, demand, authorization, direction, notice, consent, waiver or
other action hereunder, or whether sufficient funds are available for
redemption or for any other purpose, and for the purpose of making the
calculations required by Section 313 of the Trust Indenture Act, (i) the
principal amount of an Original Issue Discount Security that shall be
deemed to be Outstanding shall be the amount of the principal thereof that
would be due and payable as of the date of such determination upon
acceleration of the Maturity thereof pursuant to Section 502, (ii) the
principal amount of a Security denominated in one or more foreign
currencies or currency units shall be the U.S. dollar equivalent,
determined in the manner provided as contemplated by Section 301 on the
date of original issuance of such Security, of the principal amount (or, in
the case of an Original Issue Discount Security, the U.S. dollar equivalent
on the date of original issuance of such Security of the amount determined
as provided in (i) above) of such Security, (iii) the principal amount of
any indexed security that may be counted in making such determination or
calculation and that shall be deemed to be Outstanding for such purpose
shall be equal to the principal face amount of such indexed security at
original issuance, unless otherwise provided with respect to such Security
pursuant to Section 301, and (iv) except for the purpose of making the
calculations required by Section 313 of the Trust Indenture Act, Securities
owned by the Company or any other obligor upon the Securities or any
Affiliate of the Company or of such other obligor 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, waiver or other action, only
Securities which a Responsible Officer of the Trustee actually knows to be
so owned shall be so disregarded. 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.
"Paying Agent" means any Person authorized by the Company to pay
the principal of or any premium or interest on any Securities on behalf of
the Company.
"Person" means any individual, corporation, partnership, joint
venture, trust, unincorporated organization or government or any agency or
political subdivision thereof
"Place of Payment", when used with respect to the Securities of
any series, means the place or places where the principal of and any
premium and interest on the Securities of that series are payable as
specified as contemplated by Sections 301 and 1002.
"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.
"Principal Domestic Property" means any building, structure or
other facility, together with the land on which it is erected and fixtures
comprising a part of it, used primarily for information processing,
research or housing hardware or software required for information
processing, located in the United States, excluding its territories,
possessions and Puerto Rico, owned or leased by the Company or one of the
Company's subsidiaries and having a net book value in excess of 1% of
Consolidated Net Assets, other than any such building, structure or other
facility or a portion which the Company's principal executive officer,
president and principal financial officer determine in good faith is not of
material importance to the total business conducted or assets owned by the
Company and its subsidiaries as an entirety.
"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.
"Responsible Officer", when used with respect to the Trustee,
means any officer assigned by the Trustee to administer corporate trust
matters and also means, with respect to a particular corporate trust
matter, any other officer to whom such matter is referred because of his or
her knowledge of and familiarity with the particular subject.
"Securities" has the meaning stated in the first recital of this
Indenture and more particularly means any Securities authenticated and
delivered under this Indenture.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"Special Record Date" for the payment of any Defaulted Interest
means a date fixed by the Trustee pursuant to Section 307.
"Stated Maturity", when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date
specified in such Security as the fixed date on which the principal of such
Security or such installment of principal or interest is due and payable.
"Subsidiary" means any corporation, association or other business
entity of which more than 50% of the outstanding Voting Interests is owned
directly or indirectly by the Company or by one or more other Subsidiaries
or by the Company and one or more Subsidiaries.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become
such pursuant to the applicable provisions of this Indenture, and
thereafter "Trustee" shall mean or include each Person who is then a
Trustee hereunder, and if at 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 in
force at the date as of which this instrument was executed; provided,
however, that in the event the Trust Indenture Act of 1939 is amended after
such date, "Trust Indenture Act" means, to the extent required by any such
amendment, the Trust Indenture Act of 1939 as so amended.
"U.S. Government Obligations" has the meaning specified in
Section 1304.
"Vice President", when used with respect to the Company or the
Trustee, means any vice president, whether or not designated by a number or
a word or words added before or after the title "vice president".
"Voting Interests" means, with respect to any Person, any and all
shares, interests, participations or other equivalents in equity of such
Person, ordinarily having the power to vote for the election of directors,
managers or other voting members of the governing body of such Person.
Section 102. Compliance Certificates and Opinions.
------------------------------------
Upon any application or request by the Company to the Trustee to
take any action under any provision of this Indenture, the Company shall
furnish to the Trustee such certificates and opinions as may be required
under the Trust Indenture Act. Each such certificate or opinion shall be
given in the form of an Officers' Certificate, if to be given by an officer
of the Company, or an Opinion of Counsel, if to be given by counsel, and
shall comply with the requirements of the Trust Indenture Act and any other
requirements set forth in this Indenture.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include
(1) a statement that each individual signing such
certificate or opinion has read such covenant or
condition and the definitions herein relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements
or opinions contained in such certificate or opinion
are based;
(3) a statement that, in the opinion of 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 complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been
complied with.
Section 103. Form of Documents Delivered to Trustee.
--------------------------------------
In any case where several matters are required to be certified
by, or covered by an opinion of, any specified Person, it is not necessary
that all such matters be certified by, or covered by the opinion of, only
one such Person, or that they be so certified or covered by only one
document, but one such Person may certify or give an opinion with respect
to some matters and one or more other such Persons as to other matters, and
any such Person may certify or give an opinion as to such matters in one or
several documents.
Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or
representations by counsel or an opinion of counsel, unless such officer
knows, or in the exercise of reasonable care should know, that the
certificate, representations or opinion with respect to the matters upon
which such officer's certificate or opinion is based are erroneous. Any
such certificate or representations of counsel 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; Record Dates.
-----------------------------
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided or permitted by
this Indenture to be given, made 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 their agent duly appointed in writing; and, except as
herein otherwise expressly provided such action shall become
effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required,
to the Company. Such instrument or instruments (and the
action embodied therein and evidenced thereby) are herein
sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any
such instrument or of a writing appointing any such agent
shall be sufficient for any purpose of this Indenture and
(subject to Section 601) conclusive in favor of the Trustee
and the Company, if made in the manner provided in this
Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a
witness of such execution or by a certificate of a notary
public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual
signing such instrument or writing acknowledged to him the
execution thereof. 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. The fact and date of the
execution of any such instrument or writing, or the
authority of the Person executing the same, may also be
proved in any other manner which the Trustee deems
sufficient.
(c) The Company may fix any day as the record date for the
purpose of determining the Holders of Securities of any
series entitled to give or take any request, demand,
authorization, direction, notice, consent, waiver or other
action, or to vote on any action, authorized or permitted to
be given or taken by Holders of Securities of such series.
If not set by the Company prior to the first solicitation of
a Holder of Securities of such series made by any Person in
respect of any such action, or, in the case of any such
vote, prior to such vote, the record date for any such
action or vote shall be the 30th day (or, if later, the date
of the most recent list of Holders required to be provided
pursuant to Section 701) prior to such first solicitation or
vote, as the case may be. With regard to any record date for
action to be taken by the Holders of one or more series of
Securities, only the Holders of Securities of such series on
such date (or their duly designated proxies) shall be
entitled to give or take, or vote on, the relevant action.
(d) The ownership of Securities shall be proved by the Security
Register.
(e) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Security
shall bind every future Holder of the same Security and the
Holder of every 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.
Section 105. Notices, Etc., to Trustee and Company.
-------------------------------------
Any request, demand, authorization, direction, notice, consent,
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,
(1) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given,
furnished or filed in writing to or with the Trustee at
its Corporate Trust Office, Attention: Corporate Trust
Administration, or
(2) 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 it at the address of its principal office
specified in the first paragraph of this instrument or
at any other address previously furnished in writing to
the Trustee by the Company, Attention: Treasurer.
Section 106. Notice to Holders; Waiver.
-------------------------
Where this Indenture provides for notice to Holders of any event,
such notice shall be sufficiently given (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, to each
Holder affected by such event, at his address as it appears in the Security
Register, not later than the latest date (if any), and not earlier than the
earliest date (if any), prescribed for the giving of such notice. 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 mailed to a Holder in the manner herein prescribed
shall be conclusively deemed to have been received by such Holder, whether
or not such Holder actually receives such notice. Where this Indenture
provides for notice in any manner, such notice may be waived in writing by
the Person entitled to receive such notice, either before or after the
event, 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.
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 by
mail, then such notification as shall be made with the approval of the
Trustee shall constitute a sufficient notification for every purpose
hereunder.
Section 107. Conflict with Trust Indenture Act.
---------------------------------
If any provision hereof limits, qualifies or conflicts with a
provision of the Trust Indenture Act that is required under such Act to be
a part of and govern this Indenture, the latter provision shall control. If
any provision of this Indenture modifies or excludes any provision of the
Trust Indenture Act that may be so modified or excluded, the latter
provision shall be deemed to apply to this Indenture as so modified or to
be excluded, as the case may be.
Section 108. Effect of Headings and Table of Contents.
----------------------------------------
The Article and Section headings herein 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 in 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 in the Securities, express or
implied, shall give to any Person, other than the parties hereto and their
successors hereunder and the Holders, any benefit or any legal or equitable
right, remedy or claim under this Indenture.
Section 112. Governing Law.
-------------
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT
REGARD TO CONFLICTS OF LAWS PRINCIPLES THEREOF.
Section 113. Legal Holidays.
--------------
In any case where any Interest Payment Date, Redemption Date,
Stated Maturity or 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 of the Securities of
any series 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, the
Redemption Date, or at the Stated Maturity or Maturity; provided, that no
interest shall accrue for the intervening period.
ARTICLE TWO
SECURITY FORMS
Section 201. Forms Generally.
---------------
The Securities of each series shall be in substantially the form
set forth in this Article, or in such other form as shall be established by
or pursuant to a Board Resolution or in one or more 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 Depositary
therefor or as may, consistently herewith, be determined by the officers
executing such Securities, as evidenced by their execution of the
Securities. If the form of Securities of any series is established by, or
by action taken pursuant to, a Board Resolution, a copy of an appropriate
record of such action shall be certified by the Secretary or an Assistant
Secretary of the Company and 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 definitive Securities shall be printed, lithographed or
engraved on steel engraved borders or may be produced in any other manner
permitted by the rules of any securities exchange on which the Securities
may be listed, all as determined by the officers executing such Securities,
as evidenced by their execution of such Securities.
Section 202. Form of Face of Security.
------------------------
[insert any legend required by the Internal Revenue Code
and the regulations thereunder.]
- -----------------------------------------------------------------------
Sabre Holdings Corporation
--------------------------
No. $
--------- -------
CUSIP NO.
---------------
Sabre Holdings Corporation, a corporation duly organized and
existing under the laws of Delaware (herein called the "Company", which
term includes any successor Person under the Indenture hereinafter referred
to), for value received, hereby promises to pay to __________________ or
registered assigns, the principal sum of ____________ Dollars on ______ [if
the Security is to bear interest prior to Maturity, insert, 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 on
______ and ______ in each year, commencing ______, at the rate of __% per
annum, until the principal hereof is paid or made available for payment [if
applicable, insert -- and (to the extent that the payment of such interest
shall be legally enforceable) at the rate of ___% per annum on any overdue
principal and premium and on any overdue installment of interest]. The
interest so payable, and punctually paid or duly provided for, on any
Interest Payment Date will, as provided in such 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 the ______ or ______ (whether or not a Business
Day), as the case may be, next preceding such Interest Payment Date. Any
such interest not so punctually paid or duly provided for will forthwith
cease to be payable to the Holder on such 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 said Indenture].
[If the Security is not to bear interest prior to Maturity,
insert -- The principal of this Security shall not bear interest except in
the case of a default in payment of principal upon acceleration, upon
redemption or at Stated Maturity and in such case the overdue principal of
this Security shall bear interest at the rate of __% per annum (to the
extent that the payment of such interest shall be legally enforceable),
which shall accrue from the date of such default in payment to the date
payment of such principal has been made or duly provided for. Interest on
any overdue principal shall be payable on demand. [Any such interest on any
overdue principal that is not so paid on demand shall bear interest at the
rate of __% per annum (to the extent that the payment of such interest
shall be legally enforceable), which shall accrue from the date of such
demand for payment to the date payment of such interest has been made or
duly provided for, and such interest shall also be payable on demand.]]
Payment of the principal of (and premium, if any) and [if
applicable, insert -- any such] interest on this Security will be made at
the office or agency of the Company maintained for that purpose in
____________, in such coin or currency of [the United States of America] as
at the time of payment is legal tender for payment of public and private
debts [if applicable, insert --; provided, however, that at the option of
the Company payment of interest may be made by check mailed to the address
of the Person entitled thereto as such address shall appear in the Security
Register or by wire transfer to an account maintained by the Person
entitled thereto as specified in the Security Register, provided that such
Person shall have given the Trustee written wire instructions at least five
Business Days prior to the applicable Interest Payment Date.]
[If the Security is payable in a foreign currency, currency unit
or composite currency insert -- the appropriate provision.]
Reference is hereby made to the further provisions of this
Security set forth on the reverse hereof, which further provisions shall
for all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed
by the Trustee referred to on the reverse hereof by manual signature, this
Security shall not be entitled to any benefit under the Indenture or be
valid or obligatory for any purpose.
<PAGE>
IN WITNESS WHEREOF, the Company has caused this instrument to be
duly executed under its corporate seal.
Sabre Holdings Corporation
By
-------------------------------
Title:
Attest:
- ------------------------------
Title:
Section 203. Form of Reverse of Security.
---------------------------
This Security is one of a duly authorized issue of securities of
the Company (herein called the "Securities"), issued and to be issued in
one or more series under an Indenture, dated as of [ ], 2000 (herein called
the "Indenture"), between the Company and SunTrust Bank, as Trustee (herein
called the "Trustee", which term includes any successor trustee 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, the Holders of the Securities and of the terms upon which the
Securities are, and are to be, authenticated and delivered. This Security
is one of the series designated on the face hereof [, intially limited in
aggregate principal amount to $______].
[If applicable, insert -- The Securities of this series are
subject to redemption upon not less than 30 nor more than 60 days' notice
by mail, such 30 or 60 days, as the case may be, to be counted from the
date notice is mailed, [if applicable, insert -- (1) on ______ in any year
commencing with the year ______ and ending with the year ______ through
operation of the sinking fund for this series at a Redemption Price equal
to 100% of the principal amount, and (2)] at any time [on or after
____________, 20__], as a whole or in part, at the election of the Company,
[at Redemption Prices determined as follows:] at the following Redemption
Prices (expressed as percentages of the principal amount): [If redeemed [on
or before ________, ___%]: If redeemed on or before ______, and if
redeemed] during the 12-month period beginning ______ of the years
indicated,
Year Redemption Year Redemption
---- Price ---- Price
----- -----
and thereafter at a Redemption Price equal to __% of the principal amount,]
together in the case of any such redemption [if applicable, insert --
(whether through operation of the sinking fund or otherwise)] with accrued
interest to the Redemption Date, but interest installments whose Stated
Maturity is on or prior to such Redemption Date will be payable to the
Holders of such Securities, or one or more Predecessor Securities, of
record at the close of business on the relevant Regular Record Dates or
Special Record Dates referred to on the face hereof, all as provided in the
Indenture.]
[If applicable, insert -- The Securities of this series are
subject to redemption upon not less than 30 nor more than 60 days' notice
by mail, such 30 or 60 days, as the case may be, to be counted from the
date notice is mailed, (1) on _____ in any year commencing with the year
___ and ending with the year ___ through operation of the sinking fund for
this series at the Redemption Prices for redemption through operation of
the sinking fund (expressed as percentages of the principal amount) set
forth in the table below, and (2) at any time [on or after __________], as
a whole or in part, at the election of the Company, at the Redemption
Prices for redemption otherwise than through operation of the sinking fund
(expressed as percentages of the principal amount) set forth in the table
below: If redeemed during the 12-month period beginning __________ of the
years indicated,
Year Redemption Price Redemption Price for
- ---- For Redemption Redemption Otherwise
Through Operation Than Through Operation
of the Sinking Fund of the Sinking Fund
------------------- -------------------
and thereafter at a Redemption Price equal to ____% of the
principal amount, together in the case of any such redemption (whether
through operation of the sinking fund or otherwise) with accrued interest
to the Redemption Date, but interest installments whose Stated Maturity is
on or prior to such Redemption Date will be payable to the Holders of such
Securities, or one or more Predecessor Securities, of record at the close
of business on the relevant Regular Record Dates or Special Record Dates
referred to on the face hereof, all as provided in the Indenture.]
[The sinking fund for this series provides for the redemption on
_______ in each year beginning with the year _______ and ending with the
year _______ of [not less than $_______ ("mandatory sinking fund") and not
more than] $_______ aggregate principal amount of Securities of this
series. Securities of this series acquired or redeemed by the Company
otherwise than through [mandatory] sinking fund payments may be credited
against subsequent [mandatory] sinking fund payments otherwise required to
be made [in the inverse order in which they become due].]
[If the Securities do not have a sinking fund, then insert -- the
Securities do not have the benefit of any sinking fund obligations.]
[If the Security is subject to redemption, insert -- In the event
of redemption of this Security in part only, a new Security or Securities
of this series and of like tenor for the unredeemed portion hereof will be
issued in the name of the Holder hereof upon the cancellation hereof.]
[If the Security is not subject to redemption, insert -- The
Securities of this series are not redeemable prior to Stated Maturity.]
[If applicable, insert -- The Indenture contains provisions for
defeasance at any time of [the entire indebtedness of this Security]
[and/or] [certain restrictive covenants and Events of Default with respect
to this Security] [, in each case] upon compliance with certain conditions
set forth in the Indenture.]
[If the Security is not an Original Issue Discount Security,
insert -- If an Event of Default with respect to Securities of this series
shall occur and be continuing, the principal of the Securities of this
series may be declared due and payable in the manner and with the effect
provided in the Indenture.]
[If the Security is an Original Issue Discount Security, insert
- -- If an Event of Default with respect to Securities of this series shall
occur and be continuing, an amount of principal of the Securities of this
series may be declared due and payable in the manner and with the effect
provided in the Indenture. Such amount shall be equal to - insert formula
for determining the amount. Upon payment (i) of the amount of principal so
declared due and payable and (ii) of interest on any overdue principal,
premium and interest (in each case to the extent that the payment of such
interest shall be legally enforceable), all of the Company's obligations in
respect of the payment of the principal of and premium and interest, if
any, on the Securities of this series shall terminate.]
[If the Security is an indexed security, insert -- the
appropriate provision.]
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Company and the rights of the Holders of the Securities
of each series to be adversely affected under the Indenture at any time by
the Company and the Trustee with the consent of the Holders of a majority
in principal amount of the Securities at the time Outstanding of each
series to be adversely affected. The Indenture also contains provisions
permitting the Holders of specified percentages in principal amount of the
Securities of each series at the time Outstanding, on behalf of the Holders
of all Securities of such series, to waive compliance by the Company with
certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder
of this Security shall be conclusive and binding upon such Holder and upon
all future Holders of this Security and of any Security issued upon the
registration of transfer hereof or in exchange herefor 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
any premium and interest on this Security at the times, place and rate, and
in the coin or currency, 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 or agency of the Company in any place where the
principal of and any premium and interest on this Security are payable,
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 and of like tenor, of
authorized denominations and for the same aggregate principal amount, will
be issued to the designated transferee or transferees.
The Securities of this series are issuable only in registered
form without coupons in denominations of $1,000 or integral multiples
thereof. 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 and of like tenor
of a different authorized denomination, as requested by the Holder
surrendering the same.
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.
No recourse shall be had for the payment of the principal of (or
premium, if any) or the interest on this Security, or for any claim based
hereon, or otherwise in respect hereof, or based on or in respect of the
Indenture or any indenture supplemental thereto, against any incorporator,
stockholder, officer, director or employee, as such, past, present or
future, of the Company or any successor corporation, whether by virtue of
any constitution, statute or rule of law, or by the enforcement of any
assessment or penalty or otherwise, all such liability being, by the
acceptance hereof and as part of the consideration for the issue hereof,
expressly waived and released.
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 owner hereof for all purposes (subject to Section 307 of the
Indenture), 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.
All terms used in this Security which are defined in the
Indenture shall have the meanings assigned to them in the Indenture. The
Indenture and this Security shall be governed by and construed in
accordance with the laws of the State of New York without regard to the
conflicts of laws principles thereof.
Section 204. Additional Provisions Required in Book-Entry Security.
-----------------------------------------------------
Any Book-Entry Security issued hereunder shall, in addition to
the provisions contained in Sections 202 and 203 and in addition to any
legend required by the Depositary, bear a legend in substantially the
following form:
"This Security is a Book-Entry Security within the meaning of the
Indenture hereinafter referred to and is registered in the name of a
Depositary or a nominee of a Depositary. This Security is exchangeable for
Securities registered in the name of a Person other than the Depositary or
its nominee only in the limited circumstances described in the Indenture
and 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."
Section 205. Form of Trustee's Certificate of Authentication.
-----------------------------------------------
The Trustees certificate of authentication shall be in
substantially the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
Dated:
---------------
SunTrust Bank,
As Trustee
By
-------------------------------
Authorized Signatory
ARTICLE THREE
THE SECURITIES
Section 301. Amount Unlimited; Issuable in Series.
------------------------------------
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Securities may be issued from time to time in one or more
series. There shall be established in or pursuant to a Board Resolution
and, subject to Section 303, set forth, or determined in the manner
provided, in an Officers' Certificate, or established in one or more
indentures supplemental hereto, prior to the issuance of Securities of any
series,
(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from
Securities of any other series);
(2) any limit upon the aggregate principal amount of the
Securities of the 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, 906 or 1107 and except for any Securities which,
pursuant to Section 303, are deemed never to have been
authenticated and delivered hereunder);
(3) the Person to whom any interest on a Security of the
series shall be payable, 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;
(4) the date or dates on which the principal of and
premium, if any, on the Securities of the series is
payable, or method by which such date or dates shall be
determined or extended;
(5) the rate or rates at which the Securities of the series
shall bear interest, if any, or the method of
calculating such rate or rates of interest, the date or
dates from which such interest shall accrue or the
method by which such date or dates shall be determined,
the Interest Payment Dates on which any such interest
shall be payable and the Regular Record Date for any
interest payable on any Interest Payment Date;
(6) if other than the Corporate Trust Office of the
Trustee, the place or places where the principal of and
any premium and interest on Securities of the series
shall be payable or where Securities of a series may be
surrendered for registration of transfer or exchange;
(7) the period or periods within which, the price or prices
at which, the currency or currencies, currency units or
composite currencies in which and the other terms and
conditions upon which Securities of the series may be
redeemed, in whole or in part, at the option of the
Company;
(8) the obligation, if any, of the Company to redeem or
purchase Securities of the series pursuant to any
sinking fund or analogous provisions or at the option
of a Holder thereof and the period or periods (or the
methods of determination of such a period or periods)
within which, the price or prices at which and the
other terms and conditions upon which Securities of the
series shall be redeemed or purchased, in whole or in
part, pursuant to such obligation;
(9) if other than denominations of $1,000 and any integral
multiple thereof, the denominations in which Securities
of the series shall be issuable;
(10) the currency, currencies, currency units or composite
currencies in which the Securities of the series will
be issued and/or in which payment of the principal of
and any premium and interest on any Securities of the
series shall be payable if other than the currency of
the United States of America and the manner of
determining the equivalent thereof in the currency of
the United States of America for purposes of the
definition of "Outstanding" in Section 101;
(11) if the amount of payments of principal of or any
premium or interest on any Securities of the series may
be determined with reference to an index, formula or
other method, the index, formula or other method by
which such amounts shall be determined;
(12) if the amount Outstanding of an indexed security for
purposes of the definition of "Outstanding" is to be
other than the principal face amount at original
issuance, the method of determination of such amount;
(13) if the principal of or any premium or interest on any
Securities of the series is to be payable, at the
election of the Company or a Holder thereof, in one or
more currencies, currency units or composite currencies
other than that or those in which the Securities are
stated to be payable, the currency, currencies,
currency units or composite currencies in which payment
of the principal of and any premium and interest on
Securities of such series as to which such election is
made shall be payable, and the periods within which and
the other terms and conditions upon which such election
is to be made;
(14) if other than the principal amount thereof, the portion
of the principal amount of Securities of the series
which shall be payable upon declaration of acceleration
of the Maturity thereof pursuant to Section 502 or the
method by which such portion shall be determined;
(15) if either or both of Section 1302 or 1303 does not
apply to the Securities of any series;
(16) whether the Securities of the series shall be issued in
whole or in part in the form of one or more Book-Entry
Securities and, in such case, the Depositary with
respect to such Book-Entry Security or Securities and
the circumstances under which any Book-Entry Security
may be registered for transfer or exchange, or
authenticated and delivered, in the name of a Person
other than such Depositary or its nominee, if other
than as set forth in Section 305;
(17) the rights, if any, of a Holder to renew or extend the
maturity of the Securities of the series;
(18) the obligation, if any, of the Company to permit the
conversion or exchange of the Securities of the series
into the Company's common stock, preferred stock or
other securities, and the terms and conditions upon
which such conversion or exchange may be effected
(including, without limitation, the initial conversion
price or rate, the conversion period, the conversion
agent, any adjustment of the applicable conversion
price or rate and any requirements relative to the
reservation or such shares or securities for purposes
of such conversion;
(19) the terms, if any, pursuant to which the Securities of
the series will be made subordinate in right of payment
to senior indebtedness of the Company, and the terms of
such subordination;
(20) any additional, modified or different covenants or
Events of Default applicable to one or more particular
series of Securities;
(21) whether the Securities of a series will be issued as
part of units consisting of Securities and other
securities of the Company or another issuer; and
(21) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture,
except as permitted by Section 901(5)).
All Securities of any one series shall be substantially identical
except as to denomination and except as may otherwise be provided in or
pursuant to the Board Resolution referred to above and (subject to Section
303) set forth, or determined in the manner provided, in the Officers'
Certificate referred to above or in any such indenture supplemental hereto.
All Securities of any one series need not be issued at the same time and,
unless otherwise provided, a series may be reopened, without the consent of
the Holders, for issuances of additional Securities of such series.
If any of the terms of the series are established by action taken
pursuant to a Board Resolution, a copy of an appropriate record of such
action shall be certified by the Secretary or an Assistant Secretary of the
Company and delivered to the Trustee at or prior to the delivery of the
Officers' Certificate setting forth, or providing the manner for
determining, the terms of the series.
Section 302. Denominations.
-------------
The Securities of each series shall be issuable in registered
form without coupons in such denominations as shall be specified as
contemplated by Section 301. In the absence of any such provisions with
respect to the Securities of any series, the Securities of such 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 Chief Executive Officer, its President, its
Chief Financial Officer or one of its Vice Presidents, under its corporate
seal reproduced thereon attested by its Secretary or one of its Assistant
Secretaries. The signature of any 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
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, together
with a Company Order for the authentication and delivery of such
Securities, and the Trustee in accordance with the Company Order shall
authenticate and deliver or make available for delivery such Securities;
provided, however, that in the case of Securities of a series that are not
to be originally issued at one time, the Trustee shall authenticate and
deliver or make available for delivery such Securities from time to time in
accordance with such other procedures (including, without limitation, the
receipt by the Trustee of oral or electronic instructions from the Company
or its duly authorized agents, promptly confirmed in writing) acceptable to
the Trustee as may be specified by or pursuant to a Company Order delivered
to the Trustee prior to the time of the first authentication of Securities
of such series. If the form or forms or terms of the Securities of the
series have been established in or pursuant to one or more Board
Resolutions as permitted by Sections 201 and 301, in authenticating such
Securities, and accepting the additional responsibilities under this
Indenture in relation to such Securities, the Trustee shall be entitled to
receive, and (subject to Section 601) shall be fully protected in relying
upon, an Opinion of Counsel stating,
(a) if the form or forms of such Securities have been
established by or pursuant to Board Resolution as permitted
by Section 201, that such form or forms have been
established in conformity with the provisions of this
Indenture;
(b) if the terms of such Securities have been, or in the case of
Securities of a series that are not to be originally issued
at one time, will be established by or pursuant to Board
Resolution as permitted by Section 301, that such terms have
been, or in the case of Securities of a series that are not
to be originally issued at one time, will be established in
conformity with the provisions of this Indenture, subject,
in the case of Securities of a series that are not to be
originally issued at one time, to any conditions specified
in such Opinion of Counsel; and
(c) that such Securities, when authenticated and delivered by
the Trustee and issued by the Company in the manner and
subject to any conditions specified in such Opinion of
Counsel, will constitute valid and legally binding
obligations of the Company enforceable in accordance with
their terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors'
rights and to general equity principles; provided, that such
Opinion of Counsel need express no opinion as to whether a
court in the United States would render a money judgment in
currency other than that of the United States.
If such form or forms or terms have been so established, the Trustee shall
not be required to authenticate such Securities if the issue 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 the Trustee determines would expose it to personal
liability.
Notwithstanding the provisions of Section 301 and of the
preceding paragraph, if all Securities of a series are not to be originally
issued at one time, it shall not be necessary to deliver the Officers'
Certificate otherwise required pursuant to Section 301 or the Company Order
and Opinion of Counsel otherwise required pursuant to such preceding
paragraph at or prior to the time of authentication of each Security of
such series if such documents, with appropriate modifications to cover such
future issuances, are delivered at or prior to the authentication upon
original issuance of the first Security of such series to be issued.
If the Company shall establish pursuant to Section 301 that the
Securities of a series are to be issued in whole or in part in the form of
one or more Book-Entry Securities, 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 or make available for
delivery one or more Securities in such form that (i) shall represent and
shall be denominated in an amount equal to the aggregate principal amount
of the Outstanding Securities of such series to be represented by such
Book-Entry Security or Securities, (ii) shall be registered in the name of
the Depositary for such Book-Entry Security or Securities or the nominee of
such Depositary, (iii) shall be delivered by the Trustee to such Depositary
or pursuant to such Depositary's instruction and (iv) shall bear the legend
set forth in Section 204.
Unless otherwise established pursuant to Section 301, each
Depositary designated pursuant to Section 301 for a Book-Entry Security
must, at the time of its designation and at all times while it serves as
Depositary, be a clearing agency registered under the Securities Exchange
Act of 1934 and any other applicable statute or regulation. The Trustee
shall have no responsibility to determine if the Depositary is so
registered. Each Depositary shall enter into an agreement with the Trustee
governing the respective duties and rights of such Depositary and the
Trustee with regard to Book-Entry Securities.
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 by manual signature of an authorized
officer thereof, and such certificate upon any Security shall be conclusive
evidence, and the only evidence, that such Security has been duly
authenticated and delivered hereunder. Notwithstanding the foregoing, if
any Security shall have been authenticated and delivered hereunder but
never issued and sold by the Company, and the Company shall deliver such
Security to the Trustee for cancellation as provided in Section 309, 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 of this Indenture.
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 deliver or 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 and
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.
If temporary Securities of any series are issued, the Company
will cause definitive Securities of that 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 in a Place
of Payment for that 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 deliver or
make available for delivery in exchange therefor one or more definitive
Securities of the same series, of any authorized denominations and of a
like aggregate principal amount and tenor. Until so exchanged the temporary
Securities of any series shall in all respects be entitled to the same
benefits under this Indenture as definitive Securities of such series and
tenor.
Section 305. Registration; Registration of Transfer and Exchange.
---------------------------------------------------
The Company shall cause to be kept at the Corporate Trust Office
of the Trustee a register (the register maintained in such office and in
any other office or agency of the Company in a Place of Payment being
herein sometimes collectively 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 of transfers
of Securities. The Trustee is hereby appointed "Security Registrar" for the
purpose of registering Securities and transfers of Securities as herein
provided.
Notwithstanding anything herein to the contrary, there shall be
only one Security Register with respect to each series of Securities.
Upon surrender for registration of transfer of any Security of
any series at the office or agency of the Company in a Place of Payment for
that series, the Company shall execute, and the Trustee shall authenticate
and deliver or make available for delivery, in the name of the designated
transferee or transferees, one or more new Securities of the same series,
of any authorized denominations and of a like aggregate principal amount
and tenor.
At the option of the Holder, Securities of any series may be
exchanged for other Securities of the same series, of any authorized
denominations and of a like aggregate principal amount and tenor, upon
surrender of the Securities to be exchanged at such office or agency.
Whenever any Securities are so surrendered for exchange, the Company shall
execute, and the Trustee shall authenticate and deliver or 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, the Security
Registrar or the Trustee) be duly endorsed or be accompanied by a written
instrument of transfer in form satisfactory to the Company, the Security
Registrar and the Trustee duly executed, by the Holder thereof or his
attorney duly authorized in writing.
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, 906 or 1107 not
involving any transfer.
The Company shall not be required (i) to issue, register the
transfer of or exchange Securities of any series during a period beginning
at the opening of business 15 days before the day of the mailing of a
notice of redemption of Securities of that series selected for redemption
under Section 1103 and ending at the close of business on the day of such
mailing, or (ii) to register the transfer of or exchange any Security so
selected for redemption in whole or in part, except the unredeemed portion
of any Security being redeemed in part.
Notwithstanding the foregoing, any Book-Entry Security shall be
exchangeable pursuant to this Section 305 for Securities registered in the
names of Persons other than the Depositary for such Security or its nominee
only if (i) such Depositary notifies the Company that it is unwilling or
unable to continue as Depositary for such Book-Entry Security or if at any
time such Depositary ceases to be a clearing agency registered under the
Securities Exchange Act of 1934, as amended and the Company does not
appoint a successor Depositary within 90 days after receipt by it of such
notice or after it becomes aware of such cessation, (ii) the Company
executes and delivers to the Trustee a Company Order that such Book-Entry
Security shall be so exchangeable or (iii) there shall have occurred and be
continuing an Event of Default with respect to the Securities. Any
Book-Entry Security that is exchangeable pursuant to the preceding sentence
shall be exchangeable for Securities registered in such names as such
Depositary shall direct.
Notwithstanding any other provision in this Indenture, unless and
until it is exchanged in whole or in part for Securities that are not in
the form of a Book-Entry Security, a Book-Entry Security may not be
transferred or exchanged except as a whole by the Depositary with respect
to such Book-Entry Security to a nominee of such Depositary or by a nominee
of such Depositary to such Depositary or another nominee of such
Depositary.
None of the Company, the Trustee, any Paying Agent or the
Security Registrar will have any responsibility or liability for any aspect
of the records relating to or payments made on account of beneficial
ownership interests in a Book-Entry Security or for maintaining,
supervising or reviewing any records relating to such beneficial ownership
interests.
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 deliver or
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 (i)
evidence to their satisfaction of the destruction, loss or theft of any
Security and (ii) such security or indemnity as may be 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 deliver, 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.
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 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 shall be entitled to all the benefits of this Indenture equally
and proportionately with any and all other Securities of that series duly
issued hereunder.
The provisions of this Section are exclusive and shall preclude
(to the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Securities.
Section 307. Payment of Interest; Interest Rights Preserved.
----------------------------------------------
Except as otherwise provided as contemplated by Section 301 with
respect to any series of Securities, 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 at the office or agency
maintained for such purpose pursuant to Section 1002; provided, however,
that at the option of the Company, interest on Securities of any series
that bear interest may be paid (i) by check mailed to the address of the
Person entitled thereto as it shall appear on the Security Register or (ii)
by wire transfer to an account maintained by the Person entitled thereto as
specified in the Security Register; provided, that such Person shall have
given the Trustee written wire instructions at least five Business Days
prior to the applicable Interest Payment Date.
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
(herein called "Defaulted Interest") shall forthwith cease to be payable to
the Holder on the relevant 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 (1) or (2) below:
(1) 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 10 days after the receipt by
the Trustee of the notice of the proposed payment. The
Trustee shall promptly notify the Company of such
Special Record Date and, in the name and at the expense
of the Company, shall cause notice of the proposed
payment of such Defaulted Interest and the Special
Record Date therefor to be mailed, first-class postage
prepaid, to each Holder of Securities of such series at
his address as it appears in the Security Register, not
less than 10 days prior to such Special Record Date.
Notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor having
been 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 (2).
(2) The Company may make payment of any Defaulted Interest
on the Securities of any series in any other lawful
manner not inconsistent with the requirements of any
securities exchange on which such Securities may be
listed, and upon such notice as may be required by such
exchange, if, after notice given by the Company to the
Trustee of the proposed payment pursuant to this
Clause, such manner of payment shall be deemed
practicable by the Trustee.
Subject to the foregoing provisions of this Section, 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.
---------------------
Prior to due presentment of a 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 such Security is registered as
the owner of such Security for the purpose of receiving payment of
principal of and any premium and (subject to Section 307) any interest on
such Security and for all other purposes whatsoever, whether or not such
Security 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, 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. All Securities so delivered and any Securities surrendered
directly to the Trustee for any such purpose shall be promptly canceled by
the Trustee and such cancellation shall be noted conspicuously on each such
Security. 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, and
may deliver to the Trustee (or to any other Person for delivery to the
Trustee) for cancellation any Securities previously authenticated hereunder
which the Company has not 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 disposed of as
directed by a Company Order or after 90 days, if not in receipt of such
Company Order, shall be disposed of in accordance with the Trustee's
customary procedures.
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 of twelve 30-day months.
Section 311. 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 CUSIP numbers.
The Company will promptly notify the Trustee of any change in the CUSIP
numbers.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
Section 401. Satisfaction and Discharge of Indenture.
---------------------------------------
This Indenture shall upon Company Request cease to be of further
effect with respect to Securities of any series (except as to any surviving
rights of registration of transfer, exchange or replacement of such
Securities herein expressly provided for), and the Trustee, at the expense
of the Company, shall execute proper instruments acknowledging satisfaction
and discharge of this Indenture with respect to such Securities, when
(1) either
(A) all such Securities theretofore authenticated and
delivered (other than (i) such Securities which
have been destroyed, lost or stolen and which have
been replaced or paid as provided in Section 306
and (ii) such Securities for whose payment money
has theretofore been deposited in trust or
segregated and held in trust by the Company and
thereafter repaid to the Company or discharged
from such trust, as provided in Section 1003) have
been delivered to the Trustee for cancellation; or
(B) all such Securities not theretofore delivered to
the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated
Maturity within one year, or
(iii) are to be called for redemption within one
year under arrangements satisfactory to the
Trustee for the giving of notice of
redemption by the Trustee in the name, and
at the expense, of the Company, and the
Company, in the case of (B)(i), (ii) or
(iii) above, has deposited or caused to be
deposited with the Trustee as trust funds in
trust for the purpose an amount in the
currency or currencies or currency unit or
units in which such Securities are payable
sufficient to pay and discharge the entire
indebtedness on such Securities not
theretofore delivered to the Trustee for
cancellation, for principal and any premium
and interest to the date of such deposit (in
the case of Securities which have become due
and payable) or to the Stated Maturity or
Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other
sums payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating
that all conditions precedent herein provided for
relating to the satisfaction and discharge of this
Indenture with respect to such Securities have been
complied with.
Notwithstanding the satisfaction and discharge of this Indenture,
the obligations of the Company to the Trustee under Section 607 and to any
Authenticating Agent under Section 615 and, if money shall have been
deposited with the Trustee pursuant to subclause (B) of Clause (1) of this
Section, the obligations of the Trustee under Section 402, Article Six and
the last paragraph of Section 1003 shall survive.
Section 402. Application of Trust Money.
--------------------------
Subject to provisions of the last paragraph of Section 1003, all
money deposited with the Trustee pursuant to Section 401 shall be held in
trust and applied by it, in accordance with the provisions of the
Securities and this Indenture, to the payment, either directly or through
any Paying Agent (including the Company acting as its own Paying Agent) as
the Trustee may determine, to the Persons entitled thereto, of the
principal and any premium and interest for whose payment such money has
been deposited with the Trustee.
ARTICLE FIVE
REMEDIES
Section 501. Events of Default.
-----------------
"Event of Default", wherever used herein with respect to
Securities of any series, means any one of the following events (whatever
the reason for such Event of Default and whether it shall be voluntary or
involuntary or be 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, unless it is inapplicable to a
particular series or is specifically deleted or modified in the Board
Resolution (or action taken pursuant thereto), Officers' Certificate or
supplemental indenture under which such series of Securities is issued or
has been modified in an indenture supplemental hereto):
(1) default in the payment of any interest upon any
Security of that series when it becomes due and
payable, and continuance of such default for a period
of 30 days; or
(2) default in the payment of the principal of (or premium,
if any, on) any Security of that series at its
Maturity; or
(3) default in the deposit of any sinking fund payment,
when and as due by the terms of a Security of that
series; or
(4) default in the performance, or breach, of any covenant
or warranty of the Company in this Indenture with
respect to Securities of that series (other than a
covenant or warranty a default in whose performance or
whose breach is elsewhere in this Section specifically
dealt with), and continuance of such default or breach
for a period of 90 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 that 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
(5) if an event of default as defined in any indenture or
instrument under which there may be issued, or by which
there may be evidenced, any indebtedness for borrowed
money of the Company, whether such indebtedness now
exists or shall hereafter be created, which
indebtedness shall, at the time of such event of
default, be publicly traded, shall happen and shall
result in such indebtedness in an amount in excess of
$50,000,000 becoming or being declared due and payable
prior to the date on which it would otherwise become
due and payable; and such default giving rise to the
event of default shall not have been cured by the
Company or waived by the requisite holders of such
indebtedness under the instrument governing the
indebtedness or such acceleration shall not have been
rescinded or annulled within 10 days after there has
been given proper notice of acceleration by the
applicable trustee or the requisite holders of such
indebtedness; or
(6) the entry by a court having jurisdiction in the
premises of (A) a decree or order for relief in respect
of the Company in an involuntary case or proceeding
under any applicable federal or state bankruptcy,
insolvency, reorganization or other similar law or (B)
a decree or order adjudging the Company a bankrupt or
insolvent, or approving as properly filed a petition
seeking reorganization, arrangement, adjustment or
composition of or in respect of the Company under any
applicable federal or state law, or appointing a
custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official of the Company
or of any substantial part of its property, or ordering
the winding up or liquidation of its affairs, and the
continuance of any such decree or order for relief or
any such other decree or order unstayed and in effect
for a period of 60 consecutive days; or
(7) the commencement by the Company of a voluntary case or
proceeding under any applicable federal or state
bankruptcy, insolvency, reorganization or other similar
law or of any other case or proceeding to be
adjudicated a bankrupt or insolvent, or the consent by
it to the entry of a decree or order for relief in
respect of the Company in an involuntary case or
proceeding under any applicable federal or state
bankruptcy, insolvency, reorganization or other similar
law or to the commencement of any bankruptcy or
insolvency case or proceeding against it or the filing
by it of a petition or answer or consent seeking
reorganization or relief under any applicable federal
or state law, or the consent by it to the filing of
such petition or to the appointment of or taking
possession by a custodian, receiver, liquidator,
assignee, trustee, sequestrator or other similar
official of the Company or of any substantial part of
its property, or the making by it of an assignment for
the benefit of creditors, or the admission by it in
writing of its inability to pay its debts generally as
they become due, or the taking of corporate action by
the Company in furtherance of any such action; or
(8) any other Event of Default provided with respect to
Securities of that series.
The Company shall provide the Trustee with written notice of an
Event of Default within five Business Days after such Event of Default has
occurred and is continuing.
Section 502. Acceleration of Maturity; Rescission and Annulment.
--------------------------------------------------
If an Event of Default (other than an Event of Default described
in clause 6 or 7 of Section 501) with respect to Securities of any series
at the time Outstanding occurs and is continuing, then in every such case
the Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series may declare the principal amount (or,
if any of the Securities of that series are Original Issue Discount
Securities or indexed securities, such portion of the principal amount of
such Securities as may be specified in the terms thereof) of all of the
Securities of that 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
any such declaration such principal amount (or, in the case of Original
Issue Discount Securities or indexed securities, such specified amount)
shall become immediately due and payable.
At any time after such a declaration of acceleration with respect
to Securities of any series has been made and before a judgment or decree
for payment of the money due has been obtained by the Trustee as
hereinafter in this Article provided, the Holders of a majority in
principal amount of the Outstanding Securities of that series, by written
notice to the Company and the Trustee, may rescind and annul such
declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a
sum sufficient to pay
(A) all overdue interest on all Securities of that
series,
(B) the principal of (and premium, if any, on) any
Securities of that series which have become due
otherwise than by such declaration of acceleration
and any interest thereon at the rate or rates
prescribed therefor in such Securities,
(C) to the extent that payment of such interest is
lawful, interest upon overdue interest at the rate
or rates prescribed therefor in such Securities,
and
(D) all sums paid or advanced by the Trustee hereunder
and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its
agents and counsel;
and
(2) all Events of Default with respect to Securities of
that series, other than the non-payment of the
principal of Securities of that series which have
become due solely by such declaration of acceleration,
have been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
If an Event of Default described in clause 6 or 7 of Section 501
occurs, the Outstanding Securities shall ipso facto become immediately due
and payable without need of any declaration or other act on the part of the
Trustee or any Holder.
Section 503. Collection of Indebtedness and Suits for Enforcement by Trustee.
---------------------------------------------------------------
The Company covenants that if
(1) default is made in the payment of any interest on any
Security when such interest becomes due and payable and
such default continues for a period of 30 days, or
(2) default is made in the payment of the principal of (or
premium, if any, on) any Security at the Maturity
thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of
the Holders of such Securities, the whole amount then due and payable on
such Securities for principal and any premium and interest and, to the
extent that payment of such interest shall be legally enforceable, interest
on any overdue principal and premium and on any overdue interest, at the
rate or rates prescribed therefor in such Securities, and, in addition
thereto, such further amount as shall be sufficient to cover the costs and
expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.
If an Event of Default with respect to Securities of any series
occurs and is continuing, the Trustee shall immediately proceed to protect
and enforce its rights and the rights of the Holders of 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 504. Trustee May File Proofs of Claim.
--------------------------------
In case of any judicial proceeding relative to the Company (or
any other obligor upon the Securities), its property or its creditors, the
Trustee shall be entitled and empowered, by intervention in such proceeding
or otherwise, to take any and all actions authorized under the Trust
Indenture Act in order to have claims of the Holders and the Trustee
allowed in any such proceeding. In particular, the Trustee shall be
authorized 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 directly to the Trustee and, in the event
that the Trustee shall consent to the making of such payments directly to
the Holders, to pay to the Trustee any amount due it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel, and any other amounts due the Trustee under Section
607.
No provision of this Indenture 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; provided, however, that the Trustee may, on behalf of the
Holders, vote for the election of a trustee in bankruptcy or similar
official and may be a member of a creditors' or other similar committee.
Section 505. Trustee May Enforce Claims Without Possession of Securities.
-----------------------------------------------------------
All rights of action and claims under this Indenture or the
Securities may be prosecuted and enforced by the Trustee without the
possession of any of the Securities or the production thereof in any
proceeding relating thereto, and any such proceeding instituted by the
Trustee shall be brought in its own name as trustee of an express trust,
and 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
of the Securities in respect of which such judgment has been recovered.
Section 506. Application of Money Collected.
------------------------------
Any money collected by the Trustee pursuant to this Article shall
be applied in the following order, at the date or dates fixed by the
Trustee and, in case of the distribution of such money on account of
principal or any premium or interest, upon presentation of the Securities
and the notation thereon of the payment if only partially paid and upon
surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under
Section 607;
SECOND: To the payment of the amounts then due and unpaid for
principal of and any premium and interest on the Securities in respect of
which or for the benefit of which such money has been collected, ratably,
without preference or priority of any kind, according to the amounts due
and payable on such Securities for principal and any premium and interest,
respectively; and
THIRD: The balance, if any, to the Company.
Section 507. Limitation on Suits.
-------------------
No Holder of any Security of any series shall have any
right to institute any proceeding, judicial or
otherwise, with respect to this Indenture, or for the
appointment of a receiver or trustee, or for any other
remedy hereunder, unless
(1) such Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect
to the Securities of that series;
(2) the Holders of not less than 25% in principal amount of
the Outstanding Securities of that series 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;
(3) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and
liabilities to be incurred in compliance with such
request;
(4) the Trustee for 60 days after its receipt of such
notice, request and offer of indemnity has failed to
institute any such proceeding; and
(5) no direction inconsistent with such written request has
been given to the Trustee before or during such 60-day
period by the Holders of a majority in principal amount
of the Outstanding Securities of that series;
it being understood and intended that no one or more of such Holders shall
have any right in any manner whatever by virtue of or by availing of, any
provision of this Indenture to affect, disturb or prejudice the rights of
any other Holders, or to obtain or to seek to obtain priority or preference
over any other Holders or to enforce any right under this Indenture, except
in the manner herein provided and for the equal and ratable benefit of all
Holders.
Section 508. 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 any premium and (subject to
Section 307) any interest 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 509. Restoration of Rights and Remedies.
----------------------------------
If the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding has
been discontinued or abandoned for any reason, or has been determined
adversely to the Trustee or to such Holder, then and in every such case,
subject to any determination in such proceeding, the Company, the Trustee
and the Holders shall be restored severally and respectively to their
former positions hereunder and thereafter all rights and remedies of the
Trustee and the Holders shall continue as though no such proceeding had
been instituted.
Section 510. Rights and Remedies Cumulative.
------------------------------
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities in the last
paragraph of Section 306 and as otherwise provided in Section 507, 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 511. Delay of Omission Not Waiver.
----------------------------
No delay or omission of the Trustee or of any Holder of any
Securities 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 512. Control by Holders.
------------------
The Holders of a majority in principal amount of the Outstanding
Securities of any 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 that
(1) such direction shall not be in conflict with any rule
of law or with this Indenture,
(2) the Trustee may take any other action deemed proper by
the Trustee which is not inconsistent with such
direction, and
(3) subject to the provisions of Section 601, the Trustee
shall have the right to decline to follow any such
direction if the Trustee in good faith shall, by a
Responsible Officer or Officers of the Trustee,
determine that the proceeding so directed would involve
the Trustee in personal liability.
Section 513. 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 the Securities of such series waive any past default hereunder with
respect to such series and its consequences, except a default
(1) in the payment of the principal of or any premium or
interest on any Security of such series, or
(2) in respect of a covenant or provision hereof which
under Article Nine 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
Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or impair any right consequent thereon.
Section 514. Undertaking for Costs.
---------------------
In any suit for the enforcement of any right or remedy under this
Indenture, or in any suit against the Trustee for any action taken,
suffered or omitted by it as Trustee, a court may require any party
litigant in such suit to file an undertaking to pay the costs of such suit,
and may assess costs, including counsel fees and expenses, against any such
party litigant, in the manner and to the extent provided in the Trust
Indenture Act; provided, that neither this Section nor the Trust Indenture
Act shall be deemed to authorize any court to require such an undertaking
or to make such an assessment in any suit instituted by the Company, the
Trustee or the Holders of more than 10% in aggregate principal amount of
the Outstanding Securities of any series or to any suit instituted by any
Holder for the enforcement of the payment of the principal of or interest
on any Security on or after the due date expressed in such Security..
ARTICLE SIX
THE TRUSTEE
Section 601. Certain Duties and Responsibilities.
-----------------------------------
The duties and responsibilities of the Trustee shall be as
provided by the Trust Indenture Act. Notwithstanding the foregoing, 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. 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 602. Notice of Defaults.
------------------
Within 90 days after the occurrence of any default hereunder with
respect to Securities of any series, the Trustee shall mail to all Holders
of Securities of such series, as their names and addresses appear in the
Security Register, notice of such default hereunder known to the Trustee,
unless such default shall have been cured or waived before the giving of
such notice; provided, however, that, except in the case of a default in
the payment of the principal of (or premium, if any) or interest on
Securities of any 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 and/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 501(4) with respect to Securities of such series no
such notice to Holders shall be given until at least 30 days after the
occurrence thereof. For the purpose of this Section, the term "default"
means any event which is, or after notice of lapse of time or both would
become, an Event of Default with respect to Securities of such series.
Subject to Trust Indenture Act Section 315(b), the Trustee shall not be
deemed to have, or be required to take, notice of any default or Event of
Default (other than a default described in paragraph (1), (2), or (3) of
Section 501) except upon (a) written notification from the Company or (b)
written notification from a Holder and, in the absence of such notice, the
Trustee may conclusively presume that there is no default or Event of
Default except as aforesaid.
Section 603. Certain Rights of Trustee.
-------------------------
Subject to the provisions of Section 601:
(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 (whether
in its original or facsimile form) 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 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
herein specifically prescribed) may, in the absence of bad
faith on its part, rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel of its selection and
the 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 of the Holders pursuant to this
Indenture, unless such Holders 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; and
(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.
Section 604. 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 statements
of the Company, and neither the Trustee nor any Authenticating Agent
assumes any responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of
the Securities. Neither the Trustee nor any Authenticating Agent shall be
accountable for the use or application by the Company of Securities or the
proceeds thereof.
Section 605. May Hold Securities and Serve as Trustee Under Other Indentures.
---------------------------------------------------------------
The Trustee, any Authenticating Agent, any Paying Agent, any
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 608 and 613, 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.
Subject to the provisions of Section 608, the Trustee may become
and act as trustee under other indentures under which other securities, or
certificates of interest or participation in other securities, of the
Company are outstanding in the same manner as if it were not Trustee.
Section 606. 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 607. Compensation and Reimbursement.
------------------------------
The Company agrees
(1) to pay to the Trustee from time to time such reasonable
compensation as shall be agreed 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);
(2) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all
reasonable expenses, disbursements and advances
incurred or made by the Trustee in accordance with any
provision of this Indenture (including the reasonable
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
(3) to indemnify each of the Trustee, or any predecessor
Trustee, for, and to hold it harmless against, any and
all loss, liability, damage, claim or expense incurred
without negligence or willful misconduct 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.
The Trustee shall have a lien prior to the Securities upon all
property and funds held by it hereunder for any amount owing it or any
predecessor Trustee pursuant to this Section 607, except with respect to
funds held in trust for the benefit of the Holders of particular
Securities.
Without limiting any rights available to the Trustee under
applicable law, when the Trustee incurs expenses or renders services in
connection with an Event of Default specified in Section 501(6) or Section
501(7), 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 satisfaction and
discharge of this Indenture and the resignation or removal of the Trustee.
Section 608. Disqualification; Conflicting Interests.
---------------------------------------
If the Trustee has or shall acquire a conflicting interest within
the meaning of the Trust Indenture Act, the Trustee shall either eliminate
such interest or resign, to the extent and in the manner provided by, and
subject to the provisions of, the Trust Indenture Act and this Indenture.
Section 609. Corporate Trustee Required; Eligibility.
---------------------------------------
There shall at all times be a Trustee hereunder which shall be a
Person that is eligible pursuant to the Trust Indenture Act to act as such
and has a combined capital and surplus of at least $50,000,000. If such
Person publishes reports of condition at least annually, pursuant to law or
to the requirements of any federal or state supervising or examining
authority, then for the purposes of this Section, the combined capital and
surplus of such Person 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 610. 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 611.
(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 611 shall not have
been delivered to the Trustee within 30 days after the
giving of such notice of resignation, the resigning Trustee
may petition, at the expense of the Company, any court of
competent jurisdiction for the appointment of a successor
Trustee with respect to the Securities of such series.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority
in principal amount of the Outstanding Securities of such
series, delivered to the Trustee and to the Company. If the
instrument of acceptance by a successor Trustee required by
Section 611 shall not have been delivered to the Trustee
within 30 days after the giving of such notice of removal,
the Trustee being removed may petition, at the expense of
the Company, any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the
Securities of such series.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 608 after
written request therefor by the Company or by any
Holder who has been a bona fide Holder of a Security
for at least six months, or
(2) the Trustee shall cease to be eligible under Section
609 and shall fail to resign after written request
therefor by the Company or by any such Holder, or
(3) the Trustee shall become incapable of acting or shall
be adjudged a 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, (i) the Company by or pursuant to a Board
Resolution may remove the Trustee and appoint a successor Trustee with
respect to all Securities, or (ii) subject to Section 514, any Holder who
has been a bona fide Holder of a Security 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 or pursuant to 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 of 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 611. 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 611,
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 611, 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 to all Holders of
Securities of such series in the manner provided in Section
106. 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 611. Acceptance of Appointment by Successor.
--------------------------------------
(a) In case of the appointment hereunder of a successor Trustee
with respect to all Securities, every such successor Trustee
so appointed shall execute, acknowledge and deliver to the
Company and to the retiring Trustee an instrument accepting
such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such
successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers,
trusts and duties of the retiring Trustee; but, on the
request of the Company or the successor Trustee, such
retiring Trustee shall, upon payment of its charges, 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 relates, (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 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; provided, however, that to the
extent that such property and money is not held by the
Trustee in trust for the benefit of the Holders of
particular Securities, such retiring Trustee shall transfer
and deliver to such successor Trustee such property and
money upon payment of its charges hereunder.
(c) Upon request of any such successor Trustee, the Company
shall execute any and all instruments for more fully and
certainly vesting in and confirming to such successor
Trustee all such rights, powers and trusts referred to in
paragraph (a) and (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.
Section 612. 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 or banking
association resulting from any merger, conversion or consolidation to which
the Trustee shall be a party, or any corporation or banking association
succeeding to all or substantially all the corporate trust business of the
Trustee, shall be the successor of the Trustee hereunder, provided such
corporation or banking association 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 613. Preferential Collection of Claims Against Company.
-------------------------------------------------
If and when the Trustee shall be or become a creditor of the
Company (or any other obligor upon the Securities), the Trustee shall be
subject to the provisions of the Trust Indenture Act regarding the
collection of claims against the Company (or any such other obligor).
Section 614. Investment of Certain Payments Held by the Trustee.
--------------------------------------------------
Any amounts held by the Trustee hereunder, other than pursuant to
Article Thirteen hereof, shall be invested by the Trustee from time to time
at the written direction of the Company in such investments as may be
specified by the Company and permitted by law and under the Indenture;
provided that in investing trust funds pursuant to the terms of this
Section and liquidating any investments held in trust hereunder, the
Trustee may, to the extent permitted by law, purchase securities (including
for the purposes of this paragraph securities as to which the Trustee or a
Trustee Affiliate (as defined below) is the issuer or guarantor) from, and
sell securities to, itself or any Trustee Affiliate and purchase securities
underwritten by, or in which a market is made by, the Trustee or a Trustee
Affiliate. For the purposes hereof, a "Trustee Affiliate" shall mean an
entity that directly, or indirectly through one or more intermediaries,
controls, or is controlled by, or is under common control with, the
Trustee. Any income or gain realized as a result of any such investment
shall be promptly distributed (in no event later than the next Business
Day) to the Company after any intended amounts have been paid to the
Holders entitled thereto, except after the occurrence and during the
continuance of an Event of Default. The Trustee shall have no liability to
the Company for any loss resulting from any investment made in accordance
with this Section, and shall bear no expense in connection with any
investment pursuant to this Section. Any such investment may be sold
(without regard to maturity date) by the Trustee whenever necessary to make
any distribution required by this Indenture. Nothing herein shall require
the Trustee to invest funds held by it pursuant to the last paragraph of
Section 1003.
Section 615. Appointment of Authenticating Agent.
-----------------------------------
The Trustee may appoint an Authenticating Agent or Agents with
respect to one or more series of Securities which shall be authorized to
act on behalf of the Trustee to authenticate Securities of such series
issued upon original issue and upon 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. Wherever 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 thereof
or the District of Columbia, authorized under such laws to act as
Authenticating Agent, having a combined capital and surplus of not less
than $50,000,000 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 all
or substantially all 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 and
shall mail written notice of such appointment by first-class mail, postage
prepaid, to all Holders of Securities of the series with respect to which
such Authenticating Agent will serve, as their names and addresses appear
in the Security Register. Any successor Authenticating Agent upon
acceptance of its appointment hereunder shall become vested with all the
rights, powers and duties of its predecessor hereunder, with like effect as
if originally named as an Authenticating Agent. No successor Authenticating
Agent shall be appointed unless eligible under the provisions of this
Section.
The Company agrees to pay to each Authenticating Agent from time
to time reasonable compensation for its services under this Section.
If an appointment with respect to one or more series is made
pursuant to this Section, the Securities of such series may have endorsed
thereon, in addition to or in lieu of the Trustee's certificate of
authentication, an alternative certificate of authentication in the
following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
Dated:
---------------
SunTrust Bank
As Trustee
By
------------------------------
As Authenticating Agent
By
------------------------------
Authorized Signatory
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 701. Company to Furnish Trustee Names and Addresses of Holders.
---------------------------------------------------------
The Company will furnish or cause to be furnished to the Trustee
(a) semi-annually, not later than ____ and ___ in each year, a list, in
such form as the Trustee may reasonably require, of the names and addresses
of the Holders as of the preceding ____ or ____, as the case may be, 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 in
similar form and content as of a 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 702. 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
contained in the most recent list furnished to the Trustee
as provided in Section 701 and the names and addresses of
Holders received by the Trustee in its capacity as Security
Registrar. The Trustee may destroy any list furnished to it
as provided in Section 701 upon receipt of a new list so
furnished.
(b) The rights of the Holders to communicate with other Holders
with respect to their rights under this Indenture or under
the Securities, and the corresponding rights and privileges
of the Trustee, shall be as provided by the Trust Indenture
Act.
(c) Every Holder of Securities, by receiving and holding the
same, agrees 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 any disclosure of
information as to names and addresses of Holders made
pursuant to the Trust Indenture Act.
Section 703. Reports by Trustee.
------------------
(a) The Trustee shall transmit to Holders such reports
concerning the Trustee and its actions under this Indenture
as may be required pursuant to the Trust Indenture Act at
the times and in the manner provided pursuant thereto. If
required by Section 313(a) of the Trust Indenture Act, the
Trustee shall, within sixty days after each _________
following the date of the first issuance of Securities
hereunder deliver to Holders a brief report, dated as of
such _______, which complies with the provisions of such
Section 313(a).
(b) 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 promptly will
notify the Trustee when any Securities are listed on any
stock exchange or delisted therefrom.
Section 704. Reports by Company.
------------------
The Company shall file with the Trustee and the Commission, and
transmit to Holders, such information, documents and other reports, and
such summaries thereof, as may be required pursuant to the Trust Indenture
Act at the times and in the manner provided pursuant to such Act; provided,
that any such information, documents or reports required to be filed with
the Commission pursuant to Section 13 or 15(d) of the Securities Exchange
Act of 1934 shall be filed with the Trustee within 15 days after the same
is so required to be filed with the Commission.
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 801. Company May Consolidate, Etc., Only on Certain Terms.
----------------------------------------------------
The Company shall not consolidate with or merge into any other
corporation or convey, transfer or lease its properties and assets
substantially as an entirety to any Person, unless:
(1) the Person formed by such consolidation or into which
the Company is merged or the Person which acquires by
conveyance, transfer or lease the properties and assets
of the Company substantially as an entirety shall be a
corporation organized and validly existing under the
laws of the United States of America, any State thereof
or the District of Columbia and shall expressly assume,
by an indenture supplemental hereto, executed and
delivered to the Trustee, in form satisfactory to the
Trustee, the due and punctual payment of the principal
of (and premium, if any) and interest on all the
Securities and the performance of every covenant of
this Indenture on the part of the Company to be
performed or observed;
(2) immediately after giving effect to such transaction, no
Event of Default, and no event which, after notice or
lapse of time or both, would become an Event of
Default, shall have occurred and be continuing; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating
that such consolidation, merger, conveyance, transfer
or lease and such supplemental indenture comply with
this Article and that all conditions precedent herein
provided for relating to such transaction have been
complied with.
This Section shall not apply to any merger or consolidation in
which the Company is the surviving corporation, provided that, immediately
after giving effect to such transaction, no Event of Default, and no event
which, after notice or lapse of time or both, would become an Event of
Default, shall have occurred and be continuing.
Section 802. Successor Substituted.
---------------------
Upon any consolidation of the Company with, or merger of the
Company into, any other Person or any conveyance, transfer or lease of the
properties and assets of the Company substantially as an entirety in
accordance with Section 801, the successor Person formed by such
consolidation or into which the Company is merged or 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 had been named
as the Company herein, and thereafter, except in the case of a lease, the
predecessor Person shall be relieved of all obligations and covenants under
this Indenture and the Securities.
Section 803. Officers' Certificate and Opinion of Counsel.
---------------------------------------------
The Trustee, subject to the provisions of Sections 601 and 603,
shall receive an Officers' Certificate and an Opinion of Counsel as
conclusive evidence that any such consolidation, merger, conveyance,
transfer or lease, and any such assumption, complies with the provisions of
this Article before the Trustee shall execute any supplemental indenture
required pursuant to this Article.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
Section 901. Supplemental Indentures Without Consent of Holders.
--------------------------------------------------
Without the consent of any Holders, the Company, when authorized
by a Board Resolution, and the Trustee, at any time and from time to time,
may enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following purposes:
(1) to 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;
or
(2) to add to the covenants of the Company for the benefit
of the Holders of all or any series of Securities (and
if such covenants are to be for the benefit of less
than all series of Securities, stating that such
covenants are expressly being included solely for the
benefit of such series) or to surrender any right or
power herein conferred upon the Company; or
(3) to add any additional Events of Default with respect to
all or any series of Securities; or
(4) to add to or change any of the provisions of this
Indenture to such extent as shall be necessary to
permit or facilitate the issuance of Securities in
bearer form, registrable or not registrable as to
principal, and with or without interest coupons, or to
permit or facilitate the issuance of Securities in
uncertificated form or in the form of Book-Entry
Securities; or
(5) to add to, change or eliminate any of the provisions of
this Indenture in respect of one or more series of
Securities, provided that any such addition, change or
elimination (i) shall neither (A) apply to any Security
of any series created prior to the execution of such
supplemental indenture and entitled to the benefit of
such provision nor (B) modify the rights of the Holder
of any such Security with respect to such provision or
(ii) shall become effective only when there is no such
Security Outstanding; or
(6) to secure the Securities; or
(7) to establish the form or terms of Securities of any
series as permitted by Sections 201 and 301; or
(8) to evidence and provide for the acceptance of
appointment hereunder by a 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 611(b); or
(9) if allowed, without penalty under applicable laws and
regulations, to permit payment in the United States
(including any of the States thereof and the District
of Columbia), its territories, its possessions and
other areas subject to its jurisdiction of principal,
premium, if any, or interest, if any, on Securities in
bearer form or coupons, if any; or
(10) 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 action
pursuant to this clause (10), other than with respect
to a defective provision, shall not adversely affect
the interests of the Holders of Securities of any
series in any material respect.
Section 902. Supplemental Indentures with Consent of Holders
-----------------------------------------------
With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Securities of each series adversely
affected by such supplemental indenture, 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 or of
modifying in any manner the rights of the Holders of Securities of such
series under this Indenture; provided, however, that no such supplemental
indenture shall, without the consent of the Holder of each Outstanding
Security affected thereby,
(1) change the Stated Maturity of the principal of, or any
installment of principal of or premium or interest on,
any Security, or reduce the principal amount thereof or
the rate of interest thereon or any premium payable
upon the redemption thereof, or reduce the amount of
the principal of an Original Issue Discount Security
that would be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to
Section 502, or change any Place of Payment where, or
the coin or currency in which, any Security or any
premium or 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 adversely affect the right of the Holder of
any Security to require the Company to repurchase such
Securities, or
(2) reduce the percentage in principal amount of the
Outstanding Securities of any series, 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 certain provisions
of this Indenture or certain defaults hereunder and
their consequences) provided for in this Indenture, or
(3) modify any of the provisions of this Section, Section
513 or Section 1007, except to increase any percentage
set forth in such Sections or to provide that certain
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 and Section 1007,
or the deletion of this proviso, in accordance with the
requirements of Sections 61l(b) and 901(8).
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 which
modifies the rights of the Holders of Securities of such series 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.
It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such Act shall approve the
substance thereof.
Section 903. 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 601) 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 or
immunities under this Indenture or otherwise.
Section 904. 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.
Section 905. Conformity with Trust Indenture Act.
-----------------------------------
Every supplemental indenture executed pursuant to this Article
shall conform to the requirements of the Trust Indenture Act.
Section 906. Reference in Securities to Supplemental Indentures.
--------------------------------------------------
Securities of any series 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 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 delivered by the Trustee in exchange for Outstanding
Securities of such series.
ARTICLE TEN
COVENANTS
Section 1001. Payment of Principal, Premium and Interest.
------------------------------------------
The Company covenants and agrees for the benefit of each series
of Securities that it will duly and punctually pay the principal of (and
premium, if any) and interest on the Securities of the series in accordance
with the terms of the Securities and this Indenture.
Section 1002. Maintenance of Office or Agency.
-------------------------------
The Company will maintain in each Place of Payment for any series
of Securities an office or agency where Securities of that series may be
presented or surrendered for payment, where Securities of that series may
be surrendered for registration of transfer or exchange and where notices
and demands to or upon the Company in respect of the Securities of that
series and this Indenture may be served. The Trustee is hereby initially
appointed Paying Agent, and the Corporate Trust Office of the Trustee is
initially designated as the office or agency for the foregoing purposes.
The Company will give prompt written notice to the Trustee of the location,
and any change in the location, of such office or agency. If at any time
the Company shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee, and the Company hereby appoints the
Trustee as its agent to receive all such 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 may be
presented or surrendered for any or all such purposes and may from time to
time rescind such designations; provided, however, that no such designation
or rescission shall in any manner relieve the Company of its obligation to
maintain an office or agency in each Place of Payment for Securities of any
series for such purposes. The Company will give prompt written notice to
the Trustee of any such designation or rescission and of any change in the
location of any such other office or agency.
Section 1003. 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 any series of Securities, it will, on or before each due date of
the principal of (and premium, if any) or interest on any of the Securities
of that series, segregate and hold in trust for the benefit of the Persons
entitled thereto a sum sufficient to pay the principal (and premium, if
any) or interest so becoming due until such sums shall be paid to such
Persons or otherwise disposed of as herein provided and will promptly
notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities, it will, on or before each due date of the principal
of (and premium, if any) or interest on any Securities of that series,
deposit with a Paying Agent a sum sufficient to pay the principal (and
premium, if any) 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 will
promptly notify the Trustee of its action or failure so to act.
The Company will cause each Paying Agent for any series of
Securities 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 will:
(1) hold all sums held by it for the payment of the
principal of (and premium, if any) or interest on Securities of
that series 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;
(2) give the Trustee notice of any default by the Company
(or any other obligor upon the Securities of that series) in the
making of any payment of principal (and premium, if any) or
interest on the Securities of that series; and
(3) 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, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, 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 any Paying
Agent to the Trustee, such Paying Agent shall be released from all further
liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent, or
received by the Trustee in respect of obligations deposited with the
Trustee pursuant to Article Thirteen, or then held by the Company, in trust
for the payment of the principal of (and premium, if any) or interest on
any Security of any series and remaining unclaimed for two years after such
principal (and premium, if any) or interest has become due and payable
shall be paid to the Company on Company Request (unless otherwise required
by mandatory provisions of applicable escheat or abandoned or unclaimed
property law), 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
(unless the Company has remitted required moneys or property to the
appropriate governmental authority under any applicable escheat or
abandoned or unclaimed property laws, or has otherwise been discharged
under such laws or laws of similar applicability, in which case such Holder
shall look solely to its remedies (if any) under such laws and not to the
Company), and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as trustee
thereof shall thereupon cease; provided, however, that the Trustee or such
Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, in a newspaper published
in the English language, customarily published on each Business Day and of
general circulation in the City of New York or mailed to Holders entitled
to such notice, notice that such money remains unclaimed and that, after a
date specified therein, which shall not be less than 30 days from the date
of such publication, any unclaimed balance of such money then remaining
will be repaid to the Company.
Section 1004. Corporate Existence.
-------------------
Subject to Article Eight, the Company will do or cause to be done
all things necessary to preserve and keep in full force and effect its
corporate existence, rights (charter and statutory) and franchises;
provided, however, that the Company shall not be required to preserve any
such right or franchise if the Company shall determine that the
preservation thereof is no longer desirable in the conduct of the business
of the Company.
Section 1005. Restrictions on Secured Debt.
----------------------------
In the event the Company or any Domestic Subsidiary incurs,
issues, assumes or guarantees any indebtedness for borrowed money
represented by notes, bonds, debentures or other similar evidences of
indebtedness, secured by a mortgage, pledge or other lien on any Principal
Domestic Property or on any shares of stock or debt of any Domestic
Subsidiary, the Company will secure, or cause such Domestic Subsidiary to
secure, the Securities equally and ratably with, or prior to, that
indebtedness, so long as that indebtedness is to be secured, unless after
giving effect to it the aggregate amount of all secured indebtedness,
together with all Attributable Debt in respect of sale and leaseback
transactions involving Principal Domestic Properties, would not exceed 15%
of Consolidated Net Assets. This restriction will not apply to, and there
shall be excluded in computing secured indebtedness for the purpose of this
restriction, indebtedness secured by:
(a) mortgages on property of, or on any shares of stock or debt of,
any corporation existing at the time that corporation becomes a
Domestic Subsidiary; provided that such mortgages or liens are
not incurred in anticipation of such corporation becoming a
Domestic Subsidiary;
(b) mortgages in favor of the Company or any Domestic Subsidiary;
(c) mortgages in favor of U.S. or foreign governmental bodies to
secure partial, progress, advance or other payments;
(d) mortgages on property, shares of stock or debt existing at the
time of acquisition, including acquisition through merger or
consolidation, purchase money mortgages and construction cost
mortgages existing at or incurred within 120 days of the time of
acquisition;
(e) mortgages existing on the first date on which the Security is
authenticated by the Trustee;
(f) mortgages incurred in connection with pollution control,
industrial revenue or similar financings; and
(g) any extension, renewal or replacement of any debt secured by any
mortgage referred to in the foregoing list, inclusive; provided
that the principal amount of debt secured by such mortgage shall
not be increased.
Section 1006. Restrictions on Sale and Leaseback Transactions.
-----------------------------------------------
Neither the Company nor any Domestic Subsidiary may enter into
any sale and leaseback transaction involving any Principal Domestic
Property, the acquisition or completion of construction and commencement of
full operation of which has occurred more than 120 days prior thereto,
unless:
(a) the Company or the Domestic Subsidiary could incur a mortgage on
the property under the restrictions described above under Section
1005 in an amount equal to the Attributable Debt with respect to
the sale and leaseback transaction without equally and ratably
securing the Securities; or
(b) the Company, within 120 days after the sale or transfer by the
Company or any Domestic Subsidiary, applies to the purchase of
other property that constitutes a Principal Domestic Property or
the retirement of the Company's or any Domestic Subsidiary's
funded debt, which is defined as indebtedness for borrowed money
having a maturity of, or by its terms extendible or renewable
for, a period of more than 12 months after the date of
determination of the amount, an amount equal to the greater of:
(1) the net proceeds of the sale of the Principal Domestic
Property sold and leased under such arrangement; or
(2) the Attributable Debt with respect to such sale and
leaseback transaction.
Section 1007. Waiver of Certain Covenants.
---------------------------
The Company may omit in any particular instance to comply with
any covenant or condition set forth in Sections 1004 through 1006,
inclusive, with respect to the Securities of any series if before or after
the time for such compliance the Holders of at least a majority in
principal amount of the Outstanding Securities of such series shall, by Act
of such Holders, either waive such compliance in such instance or generally
waive compliance with such covenant or condition, but no such waiver shall
extend to or affect such covenant or condition except to the extent so
expressly waived, and, until such waiver shall become effective, the
obligations of the Company and the duties of the Trustee in respect of any
such covenant or condition shall remain in full force and effect.
The Company may, but shall not be obligated to, fix a record date
for the purpose of determining the Persons entitled to waive compliance
with any covenant or condition hereunder. If a record date is fixed, the
Holders on such record date, or their duly designated proxies, and only
such Persons, shall be entitled to waive any such compliance, whether or
not such Holders remain Holders after such record date.
Section 1008. Compliance Certificate.
----------------------
The Company will furnish to the Trustee on or before _____ in
each year a brief certificate (which need not comply with Section 102) from
the principal executive, financial or accounting officer of the Company
stating that in the course of the performance by the signer of his or her
duties as an officer of the Company he or she would normally have knowledge
of any default or non-compliance by the Company in the performance of any
covenants or conditions contained in this Indenture, stating whether or not
he or she has knowledge of any such default or non-compliance and, if so,
specifying each such default or non-compliance of which the signer has
knowledge and the nature thereof. For purposes of this Section 1008,
non-compliance or default shall be determined without regard to any grace
period or requirement of notice provided pursuant to the terms of this
Indenture.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
Section 1101. Applicability of Article.
------------------------
Securities of any series which are redeemable in whole or in part
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 any series) in accordance with this Article.
Section 1102. Election to Redeem; Notice to Trustee.
-------------------------------------
The election of the Company to redeem any Securities shall be
evidenced by or pursuant to a Board Resolution or Officers' Certificate. In
case of any redemption at the election of the Company of the Securities of
any series, the Company shall, at least 60 days prior to the Redemption
Date fixed by the Company (unless a shorter notice shall be satisfactory to
the Trustee), notify the Trustee of such Redemption Date, of the principal
amount of Securities of such series to be redeemed and, if applicable, of
the tenor of the Securities to be redeemed. In the case of any redemption
of Securities (a) prior to the expiration of any restriction on such
redemption provided in the terms of such Securities or elsewhere in this
Indenture or (b) pursuant to an election of the Company which is subject to
a condition specified in the terms of such Securities or elsewhere in this
Indenture, the Company shall furnish the Trustee with an Officers'
Certificate evidencing compliance with such restriction or condition.
Section 1103. Selection by Trustee of Securities to Be Redeemed.
-------------------------------------------------
If less than all the Securities of any series are to be redeemed
(unless all of the Securities of such series and of a specified tenor are
to be redeemed or unless such redemption affects only a single Security),
the particular Securities to be redeemed shall be selected not more than 60
days prior to the Redemption Date by the Trustee, from the Outstanding
Securities of such series 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 a portion of the principal amount of
any Security of such series, provided that the unredeemed portion of the
principal amount of any Security shall be in an authorized denomination
(which shall not be less than the minimum authorized denomination) for such
Security. If less than all of the Securities of such series and of a
specified tenor are to be redeemed (unless such redemption affects only a
single Security), the particular Securities to be redeemed shall be
selected not more than 60 days prior to the Redemption Date by the Trustee,
from the Outstanding Securities of such series and specified tenor not
previously called for redemption in accordance with the preceding sentence.
The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption and, in the case of any Securities
selected for partial redemption, the principal amount thereof to be
redeemed.
The provisions of the two preceding paragraphs shall not apply
with respect to any redemption affecting only a single Security, whether
such Security is to be redeemed in whole or in part. In the case of any
such redemption in part, the unredeemed portion of the principal amount of
the Security shall be in an authorized denomination (which shall not be
less than the minimum authorized denomination) for such Security.
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 1104. Notice of Redemption.
--------------------
Notice of redemption shall be given by first-class mail,
postage prepaid, mailed not less than 30 nor more than 60 days prior to the
Redemption Date, to each Holder of Securities to be redeemed, at his
address appearing in the Security Register.
All notices of redemption shall identify the Securities to be
redeemed (including CUSIP numbers) and shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) in the case of partial redemption of any Securities,
the principal amounts of the particular Securities to
be redeemed,
(4) that on the Redemption Date the Redemption Price will
become due and payable upon each such Security, or
portion thereof, to be redeemed and, if applicable,
that interest thereon will cease to accrue on and after
said date,
(5) the place or places where such Securities are to be
surrendered for payment of the Redemption Price, and
(6) that the redemption is for a sinking fund, if such is
the case.
Notice of redemption of Securities to be redeemed at the election
of the Company 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 and shall be
irrevocable.
Section 1105. Deposit of Redemption Price.
---------------------------
On or prior to the Redemption Date, the Company shall deposit
with the Trustee or with a Paying Agent (or, if the Company is acting as
its own Paying Agent, segregate and hold in trust as provided in Section
1003) an amount of money in the currency or currencies in which the
Securities of such series are payable (except as otherwise specified
pursuant to Section 301 for the Securities of such series) sufficient to
pay the Redemption Price of, and (except if the Redemption Date shall be an
Interest Payment Date) accrued interest on, all the Securities or portions
thereof which are to be redeemed on that date.
Section 1106. Securities Payable on Redemption Date.
-------------------------------------
Notice of redemption having been given as aforesaid, the
Securities 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 the Company shall default in the payment of the Redemption
Price and accrued interest) such Securities shall cease to bear interest.
Upon surrender of any such Security for redemption in accordance with said
notice, such Security shall be paid by the Company at the Redemption Price,
together with accrued interest to the Redemption Date; provided, however,
that, unless otherwise specified as contemplated by Section 301,
installments of interest whose Stated Maturity is on or prior to the
Redemption Date shall be payable to the Holders of such Securities, or one
or more Predecessor Securities, registered as such at the close of business
on the relevant Record Dates according to their terms and the provisions of
Section 307.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal and any premium shall,
until paid, bear interest from the Redemption Date at the rate prescribed
therefor in the Security.
Section 1107. 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 deliver or
make available for delivery to the Holder of such Security without service
charge, a new Security or Securities of the same series and of like tenor,
of any authorized denomination as requested by such Holder, in aggregate
principal amount equal to and in exchange for the unredeemed portion of the
principal of the Security so surrendered. If a Book-Entry Security is so
surrendered, such new Security so issued shall be a new Book-Entry
Security.
ARTICLE TWELVE
SINKING FUNDS
Section 1201. Applicability of Article.
------------------------
The provisions of this Article shall be applicable to any sinking
fund for the retirement of Securities of a series except as otherwise
specified as contemplated by Section 301 for Securities of such series.
The minimum amount of any sinking fund payment provided for by
the terms of Securities of any series 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 is herein referred to
as an "optional sinking fund payment". If provided for by the terms of
Securities of any series, the cash amount of any sinking fund payment may
be subject to reduction as provided in Section 1202. Each sinking fund
payment shall be applied to the redemption of Securities of any series as
provided for by the terms of Securities of such series.
Section 1202. Satisfaction of Sinking Fund Payments with Securities.
-----------------------------------------------------
The Company (1) may deliver Outstanding Securities of a series
(other than any previously called for redemption) and (2) may apply as a
credit Securities of a series 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 any sinking fund payment with respect to the Securities of such series
required to be made pursuant to the terms of such Securities as provided
for by the terms of such series; provided that such Securities have not
been previously so credited. Such Securities 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 sinking fund payment shall be reduced accordingly.
Section 1203. Redemption of Securities for Sinking Fund.
-----------------------------------------
Not less than 45 days prior to each sinking fund payment date for
any series of Securities, the Company will deliver to the Trustee an
Officers' Certificate specifying the amount of the next ensuing sinking
fund payment for that series pursuant to the terms of that series, the
portion thereof, if any, which is to be satisfied by payment of cash and
the portion thereof, if any, which is to be satisfied by delivering and
crediting Securities of that series pursuant to Section 1202 and stating
the basis for such credit and that such Securities have not been previously
so credited and will also deliver to the Trustee any Securities to be so
delivered. 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 1103 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 1104. Such notice having been
duly given, the redemption of such Securities shall be made upon the terms
and in the manner stated in Sections 1106 and 1107.
ARTICLE THIRTEEN
DEFEASANCE AND COVENANT DEFEASANCE
Section1301. Applicability of Article; Company's Option to Effect
Defeasance or Covenant Defeasance.
----------------------------------------------------
Unless, pursuant to Section 301, provision is made that either or
both of (a) defeasance of the Securities of a series under Section 1302 as
may be specified pursuant to Section 301 with respect to any Securities,
shall be applicable or (b) covenant defeasance of the Securities of a
series under Section 1303 shall not apply to the Securities of a series,
then the provisions of such Section or Sections, as the case may be,
together with the other provisions of this Article Thirteen, with such
modifications thereto to the Securities of such series, and the Company may
at its option by Board Resolution, at any time, with respect to the
Securities of such series, elect to have either Section 1302 (if
applicable) or Section 1303 (if applicable) applied to the Outstanding
Securities of such series upon compliance with the conditions set forth
below in this Article Thirteen.
Section 1302. Defeasance and Discharge.
------------------------
Upon the Company's exercise of its option to have this Section
applied to any series of Securities, the Company shall be deemed to have
been discharged from its obligations with respect to the Outstanding
Securities of such series, and the provisions of Article Thirteen hereof
shall cease to be effective, on and after the date the conditions precedent
set forth below are satisfied (hereinafter, "defeasance"). For this
purpose, such defeasance means that the Company shall be deemed to have
paid and discharged the entire indebtedness represented by the Outstanding
Securities of such series which shall thereafter be deemed to be
"Outstanding" only for the purposes of the Sections of this Indenture
referred to in clauses (A) and (B) of this Section, and to have satisfied
all its other obligations under such Securities and this Indenture insofar
as such Securities are concerned (and the Trustee, at the expense of the
Company, shall execute proper instruments acknowledging the same), except
for the following which shall survive until otherwise terminated or
discharged hereunder: (A) the rights of Holders of Outstanding Securities
of such series to receive, solely from the trust fund described in Section
1304 as more fully set forth in such Section, payments of the principal of
(and premium, if any) and interest on such Securities when such payments
are due, (B) the Company's obligations with respect to such Securities
under Sections 305, 306, 1002 and 1003 and such obligations as shall be
ancillary thereto, (C) the rights, powers, trusts, duties, immunities and
other provisions in respect of the Trustee hereunder and (D) this Article
Thirteen. Subject to compliance with this Article Thirteen, the Company may
exercise its option under this Section 1302 notwithstanding the prior
exercise of its option under Section 1303 with respect to the Securities of
such series. Following a defeasance, payment of such Securities may not be
accelerated because of an Event of Default.
Section 1303. Covenant Defeasance.
-------------------
Upon the Company's exercise of its option (if any) to have this
Section applied to any series of Securities, the Company shall be released
from its obligations under Sections 801, 1005 and 1006 (and any covenant
made applicable to such Securities pursuant to Section 301) and the
occurrence of an event specified in Section 501(4) (with respect to
Sections 801, 1005 and 1006 or any such covenant) (and any other Event of
Default applicable to such Securities that are determined pursuant to
Section 301 to be subject to this provision) shall not be deemed to be an
Event of Default with respect to the Outstanding Securities of such series
and the provisions of Article Thirteen hereof shall cease to be effective
on and after the date the conditions set forth below are satisfied
(hereinafter, "covenant defeasance"), and such Securities shall thereafter
be deemed not to be "Outstanding" for the purposes of any direction,
waiver, consent or declaration or Act of Holders (and the consequences of
any other thereof) in connection with Sections 801, 1005 and 1006 (and any
other covenant made applicable to such Security pursuant to Section 301)
and any such Events of Default, but shall continue to be deemed
"Outstanding" for all other purposes hereunder. For this purpose, such
covenant defeasance means that, with respect to the Outstanding Securities
of such series, the Company may omit to comply with and shall have no
liability in respect of any term, condition or limitation set forth in any
such Section or such other covenant whether directly or indirectly by
reason of any reference elsewhere herein to any such Section or such other
covenant or by reason of any reference in any such Section or such other
covenant to any other provision herein or in any other document, but the
remainder of this Indenture and such Securities shall be unaffected
thereby. Notwithstanding the defeasance by the Company of its obligations
under Sections 801, 1005 and 1006, any successor shall be required to
assume the Company's obligations under Section 607 as a condition to such
succession.
Section 1304. Conditions to Defeasance or Covenant Defeasance.
-----------------------------------------------
The following shall be the conditions precedent to application of
either Section 1302 or Section 1303 to the Outstanding Securities of or
within such series:
(1) The Company shall irrevocably have deposited or caused
to be deposited with the Trustee (or another trustee
satisfying the requirements of Section 609 who shall
agree to comply with the provisions of this Article
Thirteen applicable to it) as trust funds in trust for
the purpose of making the following payments,
specifically pledged as security for, and dedicated
solely to, the benefit of the Holders of such
Securities, (A) money in an amount (in such currency,
currencies or currency units in which such Securities
are then specified as payable at Maturity), or (B) U.S.
Government Obligations which through the scheduled
payment of principal and interest in respect thereof in
accordance with their terms will provide, not later
than one day before the due date of any payment, money
in an amount, or (C) a combination thereof in an
amount, sufficient, without reinvestment, in the
opinion of a nationally recognized firm of independent
public accountants expressed in a written certification
thereof delivered to the Trustee, to pay and discharge,
and which shall be applied by the Trustee (or other
qualifying trustee) to pay and discharge, (i) the
principal of (and premium, if any) and interest on the
Outstanding Securities of such series on the Maturity
of such principal, premium, if any, or interest and
(ii) any mandatory sinking fund payments applicable to
such Securities on the day on which such payments are
due and payable in accordance with the terms of this
Indenture and such Securities. Before such a deposit
the Company may make arrangements satisfactory to the
Trustee for the redemption of Securities at a future
date or dates in accordance with Article Eleven, which
shall be given effect in applying the foregoing. For
this purpose, "U.S. Government Obligations" means
securities that are (x) direct obligations of the
United States of America for the payment of which its
full faith and credit is pledged or (y) obligations of
a Person controlled or supervised by and acting as an
agency or instrumentality of the United States of
America the payment of which is unconditionally
guaranteed as a full faith and credit obligation by the
United States of America, which, in either case, are
not callable or redeemable at the option of the issuer
thereof, and shall also include a depositary receipt
issued by a bank (as defined in Section 3(a)(2) of the
Securities Act of 1933, as amended) as custodian with
respect to any such U.S. Government Obligation or a
specific payment of principal of or interest on any
such U.S. Government Obligation held by such custodian
for the account of the holder of such depositary
receipt, provided that (except as required by law) such
custodian is not authorized to make any deduction from
the amount payable to the holder of such depositary
receipt from any amount received by the custodian in
respect of the U.S. Government Obligation or the
specific payment of principal of or interest on the
U.S. Government Obligation evidenced by such depositary
receipt.
(2) No Event of Default or event which with notice or lapse
of time or both would become an Event of Default with
respect to the Securities of such series shall have
occurred and be continuing (A) on the date of such
deposit or (B) insofar as subsections 501(5) and (6)
are concerned, at any time during the period ending on
the 91st day after the date of such deposit or, if
longer, ending on the day following the expiration of
the longest preference period applicable to the Company
in respect of such deposit (it being understood that
this condition shall not be deemed satisfied until the
expiration of such period).
(3) Such defeasance or covenant defeasance shall not (A)
cause the Trustee for the Securities of such series to
have a conflicting interest as defined in Section 608
or for purposes of the Trust Indenture Act with respect
to any Securities of the Company or (B) result in the
trust arising from such deposit to constitute, unless
it is qualified as, a regulated investment company
under the Investment Company Act of 1940, as amended.
(4) Such defeasance or covenant defeasance shall not result
in a breach or violation of or constitute a default
under, this Indenture or any other material agreement
or instrument to which the Company is a party or by
which it is bound.
(5) In the case of an election under Section 1302, the
Company shall have delivered to the Trustee an Opinion
of Counsel stating that (x) the Company has received
from, or there has been published by, the Internal
Revenue Service a ruling, or (y) 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 shall confirm
that, the Holders of the Outstanding Securities of such
series will not recognize income, gain or loss for
federal income tax purposes as a result of such
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 defeasance
had not occurred.
(6) In the case of an election under Section 1303, the
Company shall have delivered to the Trustee an Opinion
of Counsel to the effect that the Holders of the
Outstanding Securities of such series will not
recognize income, gain or loss for federal income tax
purposes as a result of such covenant defeasance and
will be subject to federal income tax on the same
amounts, in the same manner and at the same times as
would have been the case if such covenant defeasance
had not occurred.
(7) Such defeasance or covenant defeasance shall be
effected in compliance with any additional terms,
conditions or limitations which may be imposed on the
Company in connection therewith pursuant to Section
301.
(8) The Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each
stating that all conditions precedent provided for
relating to either the defeasance under Section 1302 or
the covenant defeasance under Section 1303 (as the case
may be) have been complied with.
Section 1305. Deposited Money and U.S. Government Obligations to be Held
in Trust; Other Miscellaneous Provisions.
----------------------------------------------------------
Subject to the provisions of the last paragraph of Section 1003,
all money and U.S. Government Obligations (including the proceeds thereof)
deposited with the Trustee or other qualifying trustee (collectively, for
purposes of this Section 1305, the "Trustee") pursuant to Section 1304 in
respect of the Outstanding Securities of such series shall be held in trust
and applied by the Trustee, in accordance with the provisions of such
Securities and this Indenture, to the payment, either directly or through
any Paying Agent (but not including the Company acting as its own Paying
Agent) as the Trustee may determine, to the Holders of such Securities, of
all sums due and to become due thereon in respect of principal (and
premium, if any) and interest, but such money need not be segregated from
other funds except to the extent required by law. Money so held in trust
shall not be subject to the provisions of Article Thirteen.
The Company shall pay and indemnify the Trustee against any tax,
fee or other charge imposed on or assessed against the money or U.S.
Government Obligations deposited pursuant to Section 1304 or the principal
and interest received in respect thereof.
Anything herein to the contrary notwithstanding, the Trustee
shall deliver or pay to the Company from time to time upon Company Request
any money or U.S. Government Obligations held by it as provided in Section
1304 which in the opinion of a nationally recognized firm of independent
public accountants expressed in a written certification thereof delivered
to the Trustee, are in excess of the amount thereof which would then be
required to be deposited to effect an equivalent defeasance or covenant
defeasance.
Section 1306. Reinstatement.
-------------
If the Trustee or the Paying Agent is unable to apply any money
in accordance with Section 1305 by reason of any order or judgment or any
court or governmental authority enjoining, restraining or otherwise
prohibiting such application, then the Company's obligations under the
Securities of such series shall be revived and reinstated as though no
deposit had occurred pursuant to this Article Thirteen until such time as
the Trustee or Paying Agent is permitted to apply all such money in
accordance with Section 1305; provided, however, that if the Company makes
any payment of principal of (and premium, if any) or interest on any such
Security following the reinstatement of its obligations, the Company shall
be subrogated to the rights of the Holders of such Securities to receive
such payment from the money held by the Trustee or the Paying Agent.
Section 1307. Qualifying Trustee. ------------------ Any trustee
appointed pursuant to Section 1304 for the purpose of holding trust funds
deposited pursuant to that Section shall be appointed under an agreement in
form acceptable to the Trustee and shall provide to the Trustee a
certificate of such trustee, upon which certificate the Trustee shall be
entitled to conclusively rely, that all conditions precedent provided for
herein to the related defeasance or covenant defeasance have been complied
with. In no event shall the Trustee be liable for any acts or omissions of
said trustee.
ARTICLE FOURTEEN
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS,
DIRECTORS AND EMPLOYEES
Section 1401. Exemption from Individual Liability.
-----------------------------------
No recourse under or upon any obligation, covenant or agreement
of this Indenture, or of any Security, or for any claim based thereon or
otherwise in respect thereof, shall be had against any incorporator,
stockholder, officer, director, or employee, as such, past, present or
future, of the Company or of any successor corporation, either directly or
through the Company, whether by virtue of any constitution, statute or rule
of law, or by the enforcement of any assessment or penalty or otherwise; it
being expressly understood that this Indenture and the obligations issued
hereunder are solely corporate obligations of the Company, and that no such
personal liability whatever shall attach to, or is or shall be incurred by,
the incorporators, stockholders, officers, directors, or employees, as
such, of the Company or of any successor corporation, or any of them,
because of the creation of the indebtedness hereby authorized, or under or
by reason of the obligations, covenants or agreements contained in this
Indenture or in any of the Securities or implied therefrom; and that any
and all such personal liability, either at common law or in equity or by
constitution or statute, of, and any and all such rights and claims
against, every such incorporator, stockholder, officer, director, or
employee, as such, because of the creation of the indebtedness hereby
authorized, or under or by reason of the obligations, covenants or
agreements contained in this Indenture or in any of the Securities or
implied therefrom, are hereby expressly waived and released as a condition
of, and as a consideration for, the execution of this Indenture and the
issue of such Securities.
*****
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.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Indenture
to be duly executed as of the day and year first above written.
Sabre Holdings Corporation
By:
-----------------------------
Name:
Title:
<PAGE>
STATE OF [___________] )
)
COUNTY OF [__________] )
On the ____ day of ________, 2000, before me personally came
______________, to me known, who, being by me duly sworn, did depose and
say that he/she is ___________ of Sabre Holdings Corporation, one, of the
companies described in and which executed the foregoing instrument; that it
was so affixed by authority of the Board of Directors of said corporation,
and that he/she signed his/her name thereto by like authority of the Board
of Directors of said corporation.
- -----------------------------
Notary Public
<PAGE>
SUNTRUST BANK
By:
-------------------------------
Name:
Title:
<PAGE>
STATE OF [___________] )
)
COUNTY OF [__________] )
On ____________, 2000, before me, ______________________, Notary
Public, personally appeared ______________, personally known to me to be
the person whose name is subscribed to the within instrument and
acknowledged to me that he/she executed the same in his/her authorized
capacity and that by his/her signature on the instrument the person, or the
entity upon behalf of which the person acted, executed the instrument.
WITNESS my hand and official seal.
- -----------------------------
Notary Public
212-859-8831
April 17, 2000 (FAX: 212-859-8589)
Sabre Holdings Corporation
4255 Amon Carter Boulevard
Fort Worth, TX 76155
Ladies and Gentlemen:
We are acting as special counsel Sabre Holdings Corporation, a
Delaware corporation (the "Company"), in connection with the Registration
Statement on Form S-3 (No. 333-32106), as amended (the "Registration
Statement"), under the Securities Act of 1933, as amended (the "Securities
Act"), with respect to the contemplated issuance by the Company from time
to time of up to U.S. $750,000,000 aggregate public offering price or the
equivalent thereof in one or more foreign currencies, currency units or
composite currencies of (i) shares of the Company's Class A Common Stock,
par value $.01 per share (the "Common Stock"), (ii) shares of the Company's
Preferred Stock, par value $.01 per share (the "Preferred Stock"), (iii)
debt securities of the Company (the " Debt Securities"), which may be
issued pursuant to an indenture (the "Indenture") to be entered into
between the Company and SunTrust Bank, as trustee (in such capacity, the
"Trustee"), (iv) warrants of the Company to purchase Common Stock or Debt
Securities and (v) contracts of the Company to purchase Common Stock or
Preferred Stock. All capitalized terms used herein that are defined in the
Registration Statement have the meanings assigned to such terms therein,
unless otherwise defined herein. With your permission, all assumptions and
statements of reliance herein have been made without any independent
investigation or verification on our part except to the extent otherwise
expressly stated, and we express no opinion with respect to the subject
matter or accuracy of such assumptions or items relied upon.
In connection with this opinion, we have (i) investigated such
questions of law, (ii) examined originals or certified, conformed or
reproduction copies of such agreements, instruments, documents and records
of the Company, such certificates of public officials and such other
documents, and (iii) received such information from officers and
representatives of the Company as we have deemed necessary or appropriate
for the purposes of this opinion. We have examined, among other documents,
the Indenture.
In all such examinations, we have assumed the legal capacity of
all natural persons, the genuineness of all signatures, the authenticity of
original and certified documents and the conformity to original or
certified documents of all copies submitted to us as conformed or
reproduction copies. As to various questions of fact relevant to the
opinions expressed herein, we have relied upon, and assume the accuracy of,
certificates and oral or written statements and other information of or
from representatives of the Company and others and assume compliance on the
part of all parties to the Indenture with their covenants and agreements
contained therein.
To the extent it may be relevant to the opinions expressed in
paragraph 4 below, we have assumed that the Trustee will have the power and
authority to enter into and perform the Indenture and to consummate the
transactions contemplated thereby, that the Indenture will be duly
authorized, executed and delivered by, and will constitute the legal, valid
and binding obligation of, the Trustee, enforceable against the Trustee in
accordance with its terms, and that the Trustee will comply with all of its
obligations under the Indenture and all laws applicable thereto.
Based upon the foregoing and subject to the limitations,
qualifications and assumptions set forth herein, we are of the opinion
that:
1. The Company has been duly incorporated, validly existing and
in good standing under the laws of the State of Delaware.
2. When (i) the Registration Statement has become effective under
the Securities Act, (ii) the terms of the issuance and sale of the shares
of Common Stock registered pursuant to the Registration Statement have been
duly approved by the Board of Directors of the Company in conformity with
the Company's Restated Certificate of Incorporation, as amended (the
"Certificate of Incorporation"), and (iii) such shares are issued and
delivered against payment therefor for an amount in excess of the par value
thereof and in accordance with the terms of the agreement under which they
are sold, such shares of Common Stock will be validly issued, fully paid
and non-assessable.
3. When (i) the Registration Statement has become effective under
the Securities Act, (ii) in accordance with Section 151 of the General
Corporation Law of the State of Delaware and in conformity with the
Certificate of Incorporation, (a) the Board of Directors of the Company has
fixed the powers, designations, relative rights, preferences, limitations
and restrictions of a series of Preferred Stock registered pursuant to the
Registration Statement and (b) proper and valid filing with the Office of
the Secretary of State of the State of Delaware, Division of Corporations,
of a Certificate of Designations setting forth the powers, designations,
preferences and relative, participating, optional or other rights, if any,
and the qualifications, limitations or restrictions, if any, has been made,
(iii) the terms of the issuance and sale of such series of Preferred Stock
proposed to be sold by the Company have been duly approved by the Board of
Directors of the Company and all other necessary corporate action on the
part of the Company has been taken in connection therewith and (iv) such
shares of Preferred Stock are issued and delivered against payment therefor
for an amount in excess of the par value thereof and in accordance with the
agreement under which they are sold, such shares of Preferred Stock will be
validly issued, fully paid and non-assessable.
4. When (i) the Registration Statement has become effective under
the Securities Act, (ii) the Indenture is duly executed and delivered by
the Company and duly authorized, executed and delivered by the Trustee,
(iii) the terms of the Debt Securities and their issue and sale have been
duly established in conformity with the Indenture, do not violate any
applicable law or agreement or instrument then binding on the Company and
comply with any requirement or restriction imposed by any court or
governmental body having jurisdiction over the Company, the Debt Securities
have been duly executed and authenticated in accordance with the terms of
the Indenture and issued and sold as contemplated in the Registration
Statement, the Debt Securities will constitute valid and binding
obligations of the Company.
We express no opinion as to the enforceability of any provision
of the Indenture specifying that provisions thereof may be waived only in
writing, to the extent that an oral agreement or an implied agreement by
trade practice or course of conduct has been created that modifies any
provision of the Indenture.
The opinions set forth above are subject to (i) applicable
bankruptcy, insolvency, moratorium, fraudulent conveyance and other similar
laws affecting creditors' rights and remedies generally, and (ii) general
principles of equity including, without limitation, standards of
materiality, good faith, fair dealing and reasonableness, equitable
defenses and limits as to the availability of equitable remedies, whether
such principles are considered in a proceeding at law or in equity.
We express no opinion as to the legality, validity, binding
effect or enforceability of any provision of the Debt Securities or the
Indenture providing for payments thereunder in a currency other than
currency of the United States of America to the extent that a court of
competent jurisdiction, under applicable law, will convert any judgment
rendered in such other currency into currency of the United States of
America or to the extent that payment in a currency other than currency of
the United States of America is contrary to applicable law. In this
connection, we note that, as of the date of this opinion, in the case of a
Debt Security denominated in a foreign currency, a state court in the State
of New York rendering a judgment on such Debt Security would be required
under Section 27 of the New York Judiciary Law to render such judgment in
the foreign currency in which the Debt Security is denominated, and such
judgment would be converted into United States dollars at the exchange rate
prevailing on the date of entry of the judgment.
The opinions expressed herein are limited to the federal laws of
the United States of America, the laws of the State of New York and, to the
extent relevant to the opinions expressed herein, the General Corporation
Law of the State of Delaware (the "DGCL") and applicable provisions of the
Delaware Consitution, in each case as currently in effect, and reported
judicial decisions interpreting the DGCL and such provisions of the
Delaware Constitution. The opinion expressed herein is given as of the date
hereof, and we undertake no obligation to supplement this letter if any
applicable laws change after the date hereof or if we become aware of any
facts that might change the opinion expressed herein after the date hereof
or for any other reason.
We hereby consent to the filing of this opinion as an exhibit to
the Registration Statement and to the references to this firm under the
captions "Legal Matters" in the prospectus contained in the Registration
Statement and "Legal Matters" in any prospectus supplement forming a part
of the Registration Statement. In giving these consents, we do not hereby
admit that we are in the category of persons whose consent is required
under Section 7 of the Securities Act.
Very truly yours,
FRIED, FRANK, HARRIS, SHRIVER & JACOBSON
By: /s/Thomas W. Christopher
-------------------------------------
Thomas W. Christopher
EXHIBIT 12.1
STATEMENT REGARDING THE COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
<TABLE>
<CAPTION>
YEARS ENDED
-----------------------------------------------------------------
DECEMBER 31,
1999 1998 1997 1996 1995
-----------------------------------------------------------------
EARNINGS:
<S> <C> <C> <C> <C> <C>
Earnings before taxes...... $527,945 $371,454 $323,649 $305,856 $370,075
Loss (income) from
equity investees......... (18,037) (8,887) (4,916) 7,627 7,157
-----------------------------------------------------------------
Earnings before taxes and
earnings from equity
investees................ 509,908 362,567 318,733 313,483 377,232
Add: Total fixed charges
(per below).............. 28,967 34,017 33,883 45,152 23,926
Distributed income
of equity investees. 5,965 4,127 2,586 323 ---
-----------------------------------------------------------------
Total earnings........ $544,840 $400,711 $355,202 $358,958 $401,158
=================================================================
FIXED CHARGES:
Interest expenses and
capitalized.............. $9,995 $19,493 $21,692 $27,401 $ 6,060
Estimate of interest within
rental expense........... 18,972 14,524 12,191 17,751 17,866
-----------------------------------------------------------------
Total fixed charges..... $ 28,967 $ 34,017 $33,883 $ 45,152 $23,926
=================================================================
Ratio of earnings to fixed
charges(1)............... 18.81 11.78 10.48 7.95 16.77
=================================================================
- -----------------------
<FN>
(1) The ratio of earnings to fixed charges is computed by dividing
fixed charges into net earnings before income taxes and earnings
from equity investees, plus fixed charges and the distributed
income from equity investees. Fixed charges include interest costs
and the estimated interest component of rent expense (one-third of
rent expense under operating leases)
</FN>
</TABLE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption
"Experts" in Amendment No. 1 to the Registration Statement (Form S-3 No.
333-32106) and related Prospectus of Sabre Holdings Corporation and to the
incorporation by reference therein of our report dated March 16, 2000 with
respect to the consolidated financial statements and schedule of Sabre
Holdings Corporation included in its Annual Report (Form 10-K) for the year
ended December 31, 1999, filed with the Securities and Exchange Commission.
ERNST & YOUNG LLP
Dallas, Texas
April 17, 2000
- -----------------------------------------------------------------------------
- -----------------------------------------------------------------------------
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)
---------------
SUNTRUST BANK
(Exact name of trustee as specified in its charter)
303 PEACHTREE STREET 30303 58-0466330
SUITE 300 (Zip Code) (I.R.S. employer
ATLANTA, GEORGIA identification no.)
(Address of principal
executive offices)
---------------
B.A. DONALDSON
SUNTRUST BANK
25 PARK PLACE, N.E.
24TH FLOOR
ATLANTA, GEORGIA 30303-2900
(404) 588-7266
(Name, address and telephone number of agent for service)
---------------
SABRE HOLDINGS CORPORATION
DELAWARE 75-2662240
(State or other jurisdiction of (IRS employer identification no.)
incorporation or organization)
4255 AMON CARTER BOULEVARD 76155
FORT WORTH, TEXAS (Zip Code)
(Address of principal
executive offices)
-------------------
DEBT SECURITIES
(Title of the indenture securities)
- -----------------------------------------------------------------------------
333-
- -----------------------------------------------------------------------------
Registration No.
<PAGE>
1. General information.
-------------------
Furnish the following information as to the trustee -
Name and address of each examining or supervising authority to
which it is subject.
DEPARTMENT OF BANKING AND FINANCE,
STATE OF GEORGIA
ATLANTA, GEORGIA
FEDERAL RESERVE BANK OF ATLANTA
104 MARIETTA STREET, N.W.
ATLANTA, GEORGIA
FEDERAL DEPOSIT INSURANCE CORPORATION
WASHINGTON, D.C.
Whether it is authorized to exercise corporate trust powers.
YES.
2. Affiliations with obligor.
-------------------------
If the obligor is an affiliate of the trustee, describe each such
affiliation.
NONE.
NO RESPONSES ARE INCLUDED FOR ITEMS 3 THROUGH 12. RESPONSES TO THOSE ITEMS
ARE NOT REQUIRED BECAUSE, AS PROVIDED IN GENERAL INSTRUCTION (B) TO ITEM
13, THE OBLIGOR IS NOT IN DEFAULT ON ANY SECURITIES ISSUED UNDER INDENTURES
UNDER WHICH SUNTRUST BANK IS A TRUSTEE.
13. Defaults by the Obligor.
-----------------------
(a) State whether there is or has been a default with respect to the
securities under this indenture. Explain the nature of any such
default.
SUNTRUST BANK IS NOT A TRUSTEE UNDER ANY OTHER INDENTURE UNDER WHICH
SECURITIES OF THE OBLIGOR ARE OUTSTANDING. ACCORDINGLY, THERE IS NOT
AND HAS NOT BEEN ANY SUCH DEFAULT.
(b) If the trustee is a trustee under another indenture under which
any other securities, or certificates of interest or
participation in any other securities, of the obligor are
<PAGE>
outstanding, or is trustee for more than one outstanding series
of securities under the indenture, state whether there has been a
default under any such indenture or series, identify the
indenture or series affected, and explain the nature of any such
default.
THERE HAS NOT BEEN ANY SUCH DEFAULT.
NO RESPONSES ARE INCLUDED FOR ITEMS 14 AND 15. RESPONSES TO THOSE ITEMS ARE
NOT REQUIRED BECAUSE, AS PROVIDED IN GENERAL INSTRUCTION (B) TO ITEM 13,
THE OBLIGOR IS NOT IN DEFAULT ON ANY SECURITIES ISSUED UNDER INDENTURES
UNDER WHICH SUNTRUST BANK IS A TRUSTEE.
16. List of Exhibits.
----------------
List below all exhibits filed as a part of this statement of
eligibility; exhibits identified in parentheses are filed with the
Commission and are incorporated herein by reference as exhibits hereto
pursuant to Rule 7a-29 under the Trust Indenture Act of 1939, as
amended, and Rule 24 of the Commission's Rules of Practice.
(1) A copy of the Articles of Amendment and Restated Articles of
Association of the trustee as now in effect. (Exhibit 1 to Form
T-1, Registration No. 333-25463 and Certificate of Merger and
Name Change herein attached.)
(2) A copy of the certificate of authority of the trustee to commence
business. (Included in Exhibit 1.)
(3) A copy of the authorization of the trustee to exercise corporate
trust powers. (Included in Exhibit 1.)
(4) A copy of the existing by-laws of the trustee. (Exhibit 4 to Form
T-1, Registration No. 333-25463)
(5) Not applicable.
(6) The consent of the trustee required by Section 321(b) of the
Trust Indenture Act of 1939.
(7) A copy of the latest report of condition of the trustee published
pursuant to law or the requirements of its supervising or
examining authority as of the close of business on December 31,
1999.
(8) Not applicable.
(9) Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
trustee, SunTrust Bank, a banking corporation organized and existing under
the laws of the State of Georgia, has duly caused this statement of
eligibility and qualification to be signed on its behalf by the
undersigned, thereunto duly authorized, all in the City of Atlanta and the
State of Georgia, on the 14th day of April, 2000.
SUNTRUST BANK
By: /s/ B.A. Donaldson
-------------------
B.A. Donaldson
Vice President
<PAGE>
EXHIBIT 1 TO FORM T-1
ARTICLES OF ASSOCIATION
OF
SUNTRUST BANK
(Exhibit 1 to Form T-1, Registration No. 333-25463 and
Certificate of Merger and Name Change herein attached.)
<PAGE>
EXHIBIT 2 TO FORM T-1
CERTIFICATE OF AUTHORITY
OF
SUNTRUST BANK TO COMMENCE BUSINESS
(Included in Exhibit 1.)
<PAGE>
EXHIBIT 3 TO FORM T-1
AUTHORIZATION
OF
SUNTRUST BANK TO EXERCISE
CORPORATE TRUST POWERS
(Included in Exhibit 1.)
<PAGE>
EXHIBIT 4 TO FORM T-1
BY-LAWS
OF
SUNTRUST BANK
(Exhibit 4 to Form T-1, Registration No. 333-25463)
<PAGE>
EXHIBIT 5 TO FORM T-1
(INTENTIONALLY OMITTED. NOT APPLICABLE.)
<PAGE>
EXHIBIT 6 TO FORM T-1
CONSENT OF TRUSTEE
Pursuant to the requirements of Section 321(b) of the Trust Indenture
Act of 1939, in connection with the proposed issuance of Debt Securities of
Sabre Holdings Corporation, SunTrust Bank hereby consents that reports of
examinations by Federal, State, Territorial or District Authorities may be
furnished by such authorities to the Securities and Exchange Commission
upon request therefor.
SUNTRUST BANK
BY:/s/ B.A. Donaldson
------------------
B.A. Donaldson
Vice President
<PAGE>
EXHIBIT 7 TO FORM T-1
REPORT OF CONDITION
(ATTACHED.)
<PAGE>
EXHIBIT 8 TO FORM T-1
(INTENTIONALLY OMITTED. NOT APPLICABLE.)
<PAGE>
EXHIBIT 9 TO FORM T-1
(INTENTIONALLY OMITTED. NOT APPLICABLE.)
<PAGE>
SECRETARY OF STATE DOCKET NUMBER : 000030647/61233
CORPORATIONS DIVISION CONTROL NUMBER: J715952
315 WEST TOWER EFFECTIVE DATE: 01/01/2000
#2 MARTIN LUTHER KING, JR. DR. REFERENCE : 0077
ATLANTA, GEORGIA 30334-1530 PRINT DATE : 01/01/2000
FORM NUMBER : 402
MARGARET U. HODGSON
SUNTRUST BANKS, INC.
P.O. BOX 4418, MAIL CODE 643-SP
ATLANTA, GEORGIA 30302-4418
CERTIFICATE OF MERGER AND NAME CHANGE
I, Cathy Cox, the Secretary of State of the State of Georgia, do hereby
issue this certificate pursuant to Georgia Law certifying the filing of
articles or a certificate of merger, fees and required statutory approval
regarding the merger of the below entities, effective as of the date shown
above.
Surviving or Acquiring Entity:
SUNTRUST BANK, ATLANTA
Atlanta, Fulton County, Georgia
Changing its name to:
SUNTRUST BANK
Nonsurviving Entity/Entities:
SUNTRUST BANK, ALABAMA, NATIONAL ASSOCIATION
SUNTRUST BANK, CENTRAL FLORIDA, NATIONAL ASSOCIATION
SUNTRUST BANK, EAST CENTRAL FLORIDA
SUNTRUST BANK, GULF COAST
SUNTRUST BANK, MIAMI, NATIONAL ASSOCIATION
SUNTRUST BANK, MID-FLORIDA, NATIONAL ASSOCIATION
/s/ Cathy Cox
Cathy Cox
<PAGE>
SECRETARY OF STATE DOCKET NUMBER : 000030647
CORPORATIONS DIVISION CONTROL NUMBER: J715952
315 WEST TOWER EFFECTIVE DATE: 01/01/2000
#2 MARTIN LUTHER KING, JR. DR. REFERENCE : 0077
ATLANTA, GEORGIA 30334-1530 PRINT DATE : 01/06/2000
FORM NUMBER : 402
CERTIFICATE OF MERGER CONT'D
SUNTRUST BANK, NATURE COAST
SUNTRUST BANK, NORTH CENTRAL FLORIDA
SUNTRUST BANK, NORTH FLORIDA, NATIONAL ASSOCIATION
SUNTRUST BANK, NORTHWEST FLORIDA
SUNTRUST BANK, SOUTH FLORIDA, NATIONAL ASSOCIATION
SUNTRUST BANK, SOUTHWEST FLORIDA
SUNTRUST BANK, TAMPA BAY
SUNTRUST BANK, AUGUSTA, NATIONAL ASSOCIATION
SUNTRUST BANK, MIDDLE GEORGIA, NATIONAL ASSOCIATION
SUNTRUST BANK, NORTHEAST GEORGIA, NATIONAL ASSOCIATION
SUNTRUST BANK, NORTHWEST GEORGIA, NATIONAL ASSOCIATION
SUNTRUST BANK, SAVANNAH, NATIONAL ASSOCIATION
SUNTRUST BANK, SOUTH GEORGIA, NATIONAL ASSOCIATION
SUNTRUST BANK, SOUTHEAST GEORGIA, NATIONAL ASSOCIATION
SUNTRUST BANK, WEST GEORGIA, NATIONAL ASSOCIATION
SUNTRUST BANK, CHATTANOOGA, NATIONAL ASSOCIATION
SUNTRUST BANK, EAST TENNESSEE, NATIONAL ASSOCIATION
SUNTRUST BANK, NASHVILLE, NATIONAL ASSOCIATION
SUNTRUST BANK, SOUTH CENTRAL TENNESSEE, NATIONAL ASSOCIATION
<PAGE>
SECRETARY OF STATE DOCKET NUMBER : 000030627
CORPORATIONS DIVISION CONTROL NUMBER: J715952
315 WEST TOWER EFFECTIVE DATE: 01/01/2000
#2 MARTIN LUTHER KING, JR. DR. REFERENCE : 0077
ATLANTA, GEORGIA 30334-1530 PRINT DATE : 01/03/2000
FORM NUMBER : 401
MARGARET U. HODGSON
SUNTRUST BANKS, INC.
P.O. BOX 4418, MAIL CODE 643-SP
ATLANTA, GEORGIA 30302-4418
CERTIFICATE OF MERGER
I, Cathy Cox, the Secretary of State of the State of Georgia, do hereby
issue this certificate pursuant to Georgia Law certifying the filing of
articles or a certificate of merger, fees and required statutory approval
regarding the merger of the below entities, effective as of the date shown
above.
Surviving or Acquiring Entity:
SUNTRUST BANK
ATLANTA, FULTON COUNTY, GEORGIA
Nonsurviving Entity/Entities:
CRESTAR BANK
A RICHMOND, VIRGINIA BANK
/s/ Cathy Cox
Cathy Cox
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C>
SUNTRUST BANK ATLANTA Call Date: 12/31/1999 State#: 130330 FFIEC 031
P.O. BOX 4418 CENTER 632 Vendor ID: D Cert#: 00867 RC-1
ATLANTA, GA 30302 Transit #: 61000104
---------
11
---------
</TABLE>
CONSOLIDATED REPORT OF CONDITION FOR INSURED COMMERCIAL
AND STATE-CHARTERED SAVINGS BANKS FOR DECEMBER 31, 1999
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding as of the last business day of the
quarter.
SCHEDULE RC - BALANCE SHEET
Dollar Amounts in Thousands
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
ASSETS
<S> <C> <C> <C>
1. Cash and balances due from depository institutions (from Schedule RC-A): RCFD
----
a. Noninterest-bearing balances and currency and coin (1)................................... 0061 979,460 1.a
b. Interest-bearing balances (2)............................................................ 0071 8,271 1.b
2. Securities:
a. Held-to-maturity securities (from Schedule RC-B, column A)............................... 1754 0 2.a
b. Available-for-sale securities (from Schedule RC-B, column D)............................. 1773 3,595,042 2.b
3. Federal funds sold and securities purchased under agreements to resell...................... 1350 2,636,783 3
4. Loans and lease financing receivables: RCFD
----
a. Loans and leases, net of unearned income (from Schedule RC-C)....... 2122 15,545,738 4.a
b. LESS: Allowance for loan and lease losses........................... 3123 123,398 4.b
c. LESS: Allocated transfer risk reserve............................... 3128 0 4.c
d. Loans and leases, net of unearned income, RCFD
----
allowance, and reserve (item 4.a minus 4.b and 4.c)...................................... 2125 15,422,340 4.d
5. Trading assets (from Schedule RC-D)......................................................... 3545 70,521 5.
6. Premises and fixed assets (including capitalized leases).................................... 2145 105,765 6.
7. Other real estate owned (from Schedule RC-M)................................................ 2150 1,056 7.
8. Investments in unconsolidated subsidiaries and associated companies
(from Schedule RC-M)........................................................................ 2130 12,884 8.
9. Customer's liability to this bank on acceptances outstanding................................ 2158 179,938 9.
10. Intangible assets (from Schedule RC-M)..................................................... 2148 13,683 10.
11. Other assets (from Schedule RC-F).......................................................... 2160 300,624 11.
12. Total assets (sum of items 1 through 11)................................................... 2170 23,328,136 12.
- ----------
<FN>
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
</FN>
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C>
SUNTRUST BANK ATLANTA Call Date: 12/31/1999 State #: 130330 FFIEC 031
P.O. BOX 4418 CENTER 632 Vendor ID: D Cert #: 00867 RC-2
ATLANTA, GA 30302 Transit #: 61000104
---------
12
---------
</TABLE>
SCHEDULE RC -- CONTINUED
<TABLE>
<CAPTION>
Dollar Amounts in Thousands
- -------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
LIABILITIES
13. Deposits:
a. In domestic offices (sum of totals of columns A and C RCON
----
from Schedule RC-E, part I)...................................... RCON 2200 7,354,964 13.a
----
(1) Noninterest-bearing(1)....................................... 6631 3,132,703 13.a.1
(2) Interest-bearing............................................. 6636 4,222,261 13.a.2
b. In foreign offices, Edge and Agreement subsidiaries, and RCFN
----
IBFs (from Schedule RC-E, part II)............................... RCFN 2200 5,198,885 13.b
----
(1) Noninterest-bearing.......................................... 6631 0 13.b1
(2) Interest-bearing............................................. 6636 5,198,885 RCFD
---- 13.b2
14. Federal funds purchased and securities sold under agreements to
repurchase............................................................................... 2800 5,139,291 14
RCON
----
15.a. Demand noted issued to the U.S. Treasury............................................... 2840 0 15.a
RCFD
----
b. Trading liabilities (from Schedule RC-D)............................................... 3548 0 15.b
16. Other borrowed money (includes mortgage indebtedness and
obligations under capitalized leases):
a. With a remaining maturity on one year or less......................................... 2332 459,758 16.a
b. With a remaining maturity of more than one year through three years................... A547 250,000 16.b
c. With a remaining maturity of more than three years.................................... A548 752,623 16.c
17. Not applicable
18. Bank's liability on acceptances executed and outstanding................................. 2920 179,938 18
19. Subordinated notes and debentures(2)..................................................... 3200 250,000 19
20. Other liabilities (from Schedule RC-G)................................................... 2930 1,216,643 20
21. Total liabilities (sum of items 13 through 20)........................................... 2948 20,802,153 21
22. Not applicable
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus............................................ 3838 0 23
24. Common stock............................................................................. 3230 21,601 24
25. Surplus (exclude all surplus related to preferred stock)................................. 3839 853,406 25
26. a. Undivided profits and capital reserves................................................ 3632 758,543 26.a
b. Net unrealized holding gains (losses) on available-for-sale securities................ B434 890,433 26.b
c. Accumulated net gains (losses) on cash flow hedges.................................... 4336 0 26.c
27. Cumulative foreign currency translation adjustments...................................... 3284 0 27
28. Total equity capital (sum of items 23 through 27)........................................ 3210 2,523,883 28
29. Total liabilities and equity capital (sum of items 21 and 28)............................ 3300 23,326,136 29
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the statement below that best describes
the most comprehensive level of auditing work performed for the bank by independent RCFD Number
----
external auditors as of any date during 1998.............................................. 6724 N/A M.1
1 = Independent audit of the bank conducted in accordance with
generally accepted auditing standards by a certified public
accounting firm which submits a report on the bank
2 = Independent audit of the bank's parent holding company conducted
in accordance with generally accepted auditing standards by a
certified public accounting firm which submits a report on the
consolidated holding company (but not on the bank separately)
3 = Directors' examination of the bank conducted in accordance with
generally accepted auditing standards by a certified public
accounting firm (may be required by state chartering authority)
4 = Directors' examination of the bank performed by other external
auditors (may be required by state chartering authority)
5 = Review of the bank's financial statements by external auditors
6 = Compilation of the bank's financial statements by external
auditors
7 = Other audit procedures (excluding tax preparation
work)
8 = No external audit work
- --------------------------
<FN>
(1) Includes total demand deposits and noninterest-bearing time and savings
deposits.
(2) Includes limited-life preferred stock and related surplus.
</FN>
</TABLE>
