<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Amendment No. 1 to
FORM T- 3
APPLICATION FOR QUALIFICATION OF INDENTURE
UNDER THE TRUST INDENTURE ACT OF 1939
CELLULAR COMMUNICATIONS OF PUERTO RICO, INC.
(Name of Applicant)
110 East 59th Street
New York, New York 10022
(Address of Principal Executive Offices)
SECURITIES TO BE ISSUED UNDER THE
INDENTURE TO BE QUALIFIED
TITLE OF CLASS AMOUNT
15% Subordinated Notes To be determined as
Due 2008 described in the Indenture
Approximate date of proposed public offering: As soon as practicable
after the date of this Application for Qualification.
Name and address of agent for service: Copies to be sent to:
Richard J. Lubasch, Esq. Thomas H. Kennedy, Esq.
Senior Vice President, General Counsel Skadden, Arps, Slate,
Cellular Communications of Puerto Rico, Inc. Meagher & Flom, LLP
110 East 59th Street 919 Third Avenue
New York, New York 10022 New York, New York 10022
(212) 355-3466 (212) 735-2526
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1. GENERAL INFORMATION
(a) The applicant is a corporation.
(b) The applicant is organized under the laws of the State of
Delaware.
2. SECURITIES ACT EXEMPTION APPLICABLE
15% Subordinated Notes due 2008 (the "Notes") to be issued by
Cellular Communications of Puerto Rico, Inc. (the "Company" or "CCPR") under the
Indenture to be qualified hereby will be offered to holders of the Company's
Common Stock, par value $.01 per share ("Common Stock"), pursuant to the terms
of the Exchange Offer ("Exchange Offer"), for up to 3,500,000 shares of CCPR
Common Stock at the exchange ratio of $15.00 principal amount of the Notes for
each share of Common Stock. The terms of the Exchange Offer are contained in the
Offering Circular dated October 15, 1998, and in related documents attached
hereto as Exhibit T3E.
As the Notes are proposed to be offered for exchange by CCPR
with its existing stockholders exclusively and solely for outstanding securities
of CCPR, the transaction is exempt from registration under the Securities Act of
1933, as amended (the "Securities Act"), pursuant to the provisions of Section
3(a)(9) thereof. No sales of securities of the same class as the Notes have been
or are to be made by CCPR by or through an underwriter at or about the same time
as the Exchange Offer for which the exemption is claimed. No consideration has
been, or is to be given, directly or indirectly, to any person in connection
with the transaction, except for the customary payments to be made in respect of
preparation, printing, and mailing of the Offering Circular and related
documents and the engagement of D.F. King & Co., Inc. as Information Agent and
Continental Stock Transfer & Trust, Inc. as Exchange Agent for CCPR. No holder
of the outstanding Common Stock has made or will be requested to make any cash
payment to the Company in connection with the Exchange Offer.
AFFILIATIONS
3. AFFILIATES
The following is a list of the subsidiaries of CCPR as of the
date of this Application. CCPR owns, directly or indirectly, 100% of the capital
stock of each of its subsidiaries, except where indicated with an amount of
ownership in parenthesis:
2
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Cellular Communications of Puerto Rico, Inc.
CCPR, Inc.
CCPR of Virgin Islands, Inc.
CCPR Paging, Inc.
Merrimack Telecommunications Corp.
SJCT, Inc.
USVI Cellular Telephone Communications
USVI Paging, Inc.
San Juan Cellular Telephone Company (92.378%)
CCPR Services, Inc.
CCPR Telecommunications, Inc.
3
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MANAGEMENT AND CONTROL
4. DIRECTORS AND EXECUTIVE OFFICERS
The following table lists the names and offices held by all
directors and executive officers of the Company. The mailing address for all of
the persons listed is:
Cellular Communications of
Puerto Rico, Inc.
100 East 59th Street
26th Floor
New York, NY 10022
George S. Blumenthal Chairman, Treasurer and Director
Sidney R. Knafel Director
J. Barclay Knapp President, Chief Executive Officer
and Director
Del Mintz Director
Alan J. Patricof Director
Warren Potash Director
Richard J. Lubasch Senior Vice President, General Counsel
and Secretary
Stanton N. Williams Vice President and Chief Financial Officer
Stephen M. Shapiro Senior Vice President and General Manager
Jose Juan Davila Vice President-Finance
Gregg Gorelick Vice President-Controller
5. PRINCIPAL OWNERS OF VOTING SECURITIES
The following table lists, as of August 14, 1998, and giving
effect to the Exchange Offer, the name and complete mailing address, title and
number of shares of voting securities owned, and the percentage of voting
securities owned, for all persons owning more than 10% of CCPR's voting
securities.
4
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<TABLE>
<CAPTION>
NUMBER OF SHARES PERCENTAGE PERCENTAGE OF
OF COMMON STOCK OF TOTAL TOTAL COMMON STOCK
BENEFICIALLY OWNED COMMON STOCK AFTER EXCHANGE OFFER
-------------------- ------------------- ---------------------
<S> <C> <C> <C>
Snyder Capital Management, L.P. (1)....... 1,687,662 12.43% 17.39%
Snyder Capital Management, Inc.
350 California Street, Suite 1460
San Francisco, CA 94104
Ronald Baron (2).......................... 1,506,200 11.09% 15.52%
Baron Capital Group, Inc.
AMCO, Inc.
Baron Capital Management Inc.
Baron Asset Fund
767 Fifth Avenue
New York, NY 10153
Wallace R. Weitz & Company (3)............ 829,300 6.11% 8.54%
1125 South 103rd Street
Suite 600
Omaha, NE 68124-6008
The Equitable Companies Incorporated (4).. 710,249 5.23% 7.31%
1290 Avenue of the Americas
New York, NY 10104
Lazard Freres & Co., LLC (5).............. 681,883 5.02% 7.02%
30 Rockefeller Plaza
New York, NY 10020
</TABLE>
(1) Based solely upon a Schedule 13-G, filed by Snyder Capital Management,
L.P. and by Snyder Capital Management, Inc. with the Securities and
Exchange Commission (the "SEC") on May 12, 1998.
(2) Based solely upon a Schedule 13-G (Amendment No. 2), filed by Baron
Capital, Inc. with the SEC on February 19, 1998.
(3) Based solely upon a Schedule 13-G , filed by Wallace R. Weitz & Company
with the SEC on February 11, 1998.
(4) Based solely upon a Schedule 13-G , filed by The Equitable Companies
Incorporated with the SEC on February 13, 1998.
(5) Based solely upon a Schedule 13-G (Amendment No. 1), filed by Lazard
Freres & Co., LLC with the SEC on April 6, 1998.
UNDERWRITERS
6. UNDERWRITERS
(a) No person has acted as underwriter for CCPR's securities
issued in the last three years.
(b) Not applicable.
5
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CAPITAL SECURITIES
7. CAPITALIZATION
(a) The debt securities and capital stock of CCPR on a
consolidated basis as of October 12, 1998 were as follows:
<TABLE>
<CAPTION>
AMOUNT AUTHORIZED AMOUNT OUTSTANDING
------------------------ ---------------------------
Debt Securities (amount in thousands):
None
<S> <C> <C>
Capital Stock (in number of shares)
Preferred Stock, $.01 par value................. 2,500,000 0
Common Stock, $.01 par value.................... 30,000,000 13,203,713
(exclusive of 383,000
shares held in treasury)
</TABLE>
(b) The holders of the Common Stock have one vote per share,
except that with respect to the election of directors of the Company they are
entitled to cumulate their votes provided certain conditions are satisfied.
Holders of Common Stock have no preemptive, subscription or conversion rights,
and the Common Stock is not subject to any liability for further assessments.
There currently are no shares of CCPR Preferred Stock outstanding. Subject to
applicable regulations, the holders of Preferred Stock would have voting rights
as determined by the Board of Directors when, as and if shares of Preferred
Stock are issued by CCPR. The Company has entered into a Rights Agreement,
dated as of January 24, 1992, between the Company and Continental Stock Transfer
and Trust Company. Set forth in the Offering Circular is a description of
material provisions of the Company's Certificate of Incorporation, By-laws and
Rights Agreement.
INDENTURE SECURITIES
8. ANALYSIS OF INDENTURE PROVISIONS
See "Description of the Notes" in the Offering Circular (as
defined below), which information is specifically incorporated herein by
reference, and which is filed herewith as Exhibit T3E.1.
6
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9. OTHER OBLIGORS
None.
Contents of Application for Qualification. This application
for qualification comprises:
(a) Pages numbered 1 to 8 consecutively.
(b) The statement of eligibility and qualification on Form T-1
of The Chase Manhattan Bank, as Trustee under the Indenture to be qualified.
(c) The following Exhibits in addition to those filed as part
of the statement of eligibility and qualification of such Trustee:
8
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EXHIBIT T3A* - AMENDED AND RESTATED CERTIFICATE OF INCORPORATION OF THE
COMPANY.
EXHIBIT T3B* - AMENDED AND RESTATED BYLAWS OF THE COMPANY.
EXHIBIT T3C** - FORM OF INDENTURE BETWEEN THE COMPANY AND THE CHASE
MANHATTAN BANK, AS TRUSTEE.
EXHIBIT T3D - NOT APPLICABLE
EXHIBIT T3E* - (1) THE COMPANY'S OFFERING CIRCULAR, DATED OCTOBER 15, 1998
(THE "OFFERING CIRCULAR");
(2) LETTER OF TRANSMITTAL ACCOMPANYING THE OFFERING
CIRCULAR;
(3) FORM OF LETTER FROM THE COMPANY TO BROKERS, DEALERS AND
NOMINEES;
(4) FORM OF LETTER FROM BROKERS, DEALERS, COMMERCIAL BANKS,
TRUST COMPANIES AND NOMINEES TO CLIENTS; AND
(5) LETTER TO HOLDERS OF SHARES OF COMMON STOCK, DATED
OCTOBER 15, 1998.
EXHIBIT T3F - CROSS-REFERENCE SHEET (INCLUDED AS PART OF EXHIBIT T3C).
EXHIBIT 99.1* - FORM T-1 OF THE CHASE MANHATTAN BANK, AS TRUSTEE UNDER THE
INDENTURE TO BE QUALIFIED.
*Previously filed
**Replaces Exhibit T3C previously filed
9
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SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the
applicant, Cellular Communications of Puerto Rico, Inc., a corporation
organized and existing under the laws of State of Delaware, has duly caused this
application to be signed on its behalf by the undersigned, thereunto duly
authorized, and its seal to be hereunto affixed and attested, all in the City of
New York, New York on the 26th day of October, 1998.
CELLULAR COMMUNICATIONS OF
PUERTO RICO, INC.
By: /s/ Richard J. Lubasch
------------------------------
Richard J. Lubasch
10
<PAGE> 1
Page 1
Exhibit T3C
CELLULAR COMMUNICATIONS OF PUERTO RICO, INC.
As Issuer
And
THE CHASE MANHATTAN BANK
As Trustee
INDENTURE
Dated as of October 15, 1998
15% Subordinated Notes due 2008
<PAGE> 2
Page 2
CROSS-REFERENCE TABLE
TIA SECTION INDENTURE
SECTION
310 (a)(1).......................................................... 7.10
(a)(2).......................................................... 7.10
(a)(3).......................................................... N.A.
(a)(4).......................................................... N.A.
(a)(5).......................................................... 7.10
(b) ........................................................... 7.08; 7.10;
11.02
(c) ........................................................... N.A.
311 (a) ........................................................... 7.11
(b) ........................................................... 7.11
(c) ........................................................... N.A.
312 (a) ........................................................... 2.05
(b) ........................................................... 11.03
(c) ........................................................... 11.03
313 (a) ........................................................... 7.06
(b) ........................................................... 7.06
(c) ........................................................... 11.02; 7.06
(d) ........................................................... 7.06
314 (a) ........................................................... 4.05; 7.06
(b) ........................................................... N.A.
(c)(1).......................................................... 11.04
(c)(2).......................................................... 11.04
(c)(3).......................................................... N.A.
(d) ........................................................... N.A.
(e) ........................................................... 11.05
(f) ........................................................... N.A.
315 (a) ........................................................... 7.01(b)
(b) ........................................................... 7.05; 11.02
(c) ........................................................... 7.01(a)
(d) ........................................................... 7.01(c)
(e) ........................................................... 6.11
316 (a) (last sentence)............................................. 11.06
(a)(1)(A)....................................................... 6.05
(a)(1)(B)....................................................... 6.04
(a)(2).......................................................... N.A.
(b) ........................................................... 6.07
317 (a)(1).......................................................... 6.08
(a)(2).......................................................... 6.09
(b) ........................................................... 2.04
318 (a) ........................................................... 11.01
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Page 3
N.A. means Not Applicable.
Note: This Cross-Reference Table shall not, for any purpose, be deemed to be
part of this Indenture.
<PAGE> 4
Page 4
TABLE OF CONTENTS
PAGE
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01 Definitions......................................................8
Section 1.02 Incorporation by Reference of Trust Indenture Act...............12
Section 1.03 Rules of Construction...........................................12
ARTICLE II
THE SECURITIES
Section 2.01 Form and Dating.................................................13
Section 2.02 Execution and Authentication; Denominations.....................13
Section 2.03 Registrar and Paying Agent......................................14
Section 2.04 Paying Agent to Hold Money in Trust.............................14
Section 2.05 Securityholder Lists............................................14
Section 2.06 Transfer and Exchange...........................................14
Section 2.07 Replacement Securities..........................................15
Section 2.08 Outstanding Securities..........................................15
Section 2.09 Temporary Securities............................................16
Section 2.10 Cancellation....................................................16
Section 2.11 Defaulted Interest..............................................16
ARTICLE III
REDEMPTION
Section 3.01 Notices to Trustee..............................................17
Section 3.02 Selection of Securities to be Redeemed or Purchased.............17
Section 3.03 Notice of Redemption............................................17
Section 3.04 Effect of Notice of Redemption..................................18
Section 3.05 Deposit of Redemption Price.....................................18
Section 3.06 Securities Redeemed in Part.....................................18
Section 3.07 Optional Redemption Provisions..................................19
ARTICLE IV
COVENANTS
Section 4.01 Payment of Securities...........................................19
Section 4.02 Maintenance of Office or Agency.................................19
Section 4.03 Corporate Existence.............................................20
Section 4.04 Compliance Certificate..........................................20
Section 4.05 Reports.........................................................20
ARTICLE V
SUCCESSOR CORPORATION
Section 5.01 When Company May Merge, Etc.....................................21
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ARTICLE VI
DEFAULTS AND REMEDIES
Section 6.01 Events of Default...............................................21
Section 6.02 Acceleration....................................................23
Section 6.03 Other Remedies..................................................24
Section 6.04 Waiver of Past Defaults.........................................24
Section 6.05 Control by Majority.............................................24
Section 6.06 Limitation on Suits.............................................24
Section 6.07 Rights of Holders to Receive Payment............................25
Section 6.08 Collection Suit by Trustee......................................25
Section 6.09 Trustee May File Proofs of Claim................................25
Section 6.10 Priorities......................................................26
Section 6.11 Undertaking for Costs...........................................26
ARTICLE VII
TRUSTEE
Section 7.01 Duties of Trustee...............................................26
Section 7.02 Rights of Trustee...............................................27
Section 7.03 Individual Rights of Trustee....................................28
Section 7.04 Trustee's Disclaimer............................................28
Section 7.05 Notice of Defaults..............................................28
Section 7.06 Reports by Trustee to Holders...................................28
Section 7.07 Compensation and Indemnity......................................29
Section 7.08 Replacement of Trustee..........................................29
Section 7.09 Successor Trustee by Merger, Etc................................30
Section 7.10 Eligibility; Disqualification...................................30
Section 7.11 Preferential Collection of Claims Against Company...............30
Section 7.12 Authenticating Agent............................................30
ARTICLE VIII
SATISFACTION AND DISCHARGE OF INDENTURE
Section 8.01 Satisfaction, Discharge of the Indenture and Defeasance
of the Securities...............................................32
Section 8.02 Termination of the Company's Obligations upon Cancellation of
the Securities..................................................33
Section 8.03 Survival of Certain Obligations.................................33
Section 8.04 Acknowledgment of Discharge by Trustee..........................33
Section 8.05 Application of Trust Assets.....................................34
Section 8.06 Repayment to the Company........................................34
Section 8.07 Reinstatement...................................................34
ARTICLE IX
AMENDMENTS, SUPPLEMENTS AND WAIVERS
Section 9.01 Without Consent of Holders......................................35
Section 9.02 With Consent of Holders.........................................35
Section 9.03 Compliance with Trust Indenture Act.............................36
Section 9.04 Revocation and Effect of Consents...............................36
Section 9.05 Notation on or Exchange of Securities...........................36
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Page 6
Section 9.06 Trustee to Sign Amendments, Etc.................................37
ARTICLE X
SUBORDINATION OF SECURITIES
Section 10.01 Agreement to Subordinate........................................37
Section 10.02 Default on Senior Indebtedness..................................37
Section 10.03 Liquidation; Dissolution; Bankruptcy............................38
Section 10.04 Subrogation.....................................................39
Section 10.05 Trustee to Effectuate Subordination.............................40
Section 10.06 Notice by the Company...........................................40
Section 10.07 Rights of the Trustee; Holders of Senior Indebtedness...........41
Section 10.08 Subordination May Not Be Impaired...............................41
ARTICLE XI
MISCELLANEOUS
Section 11.01 Trust Indenture Act Controls....................................42
Section 11.02 Notices.........................................................42
Section 11.03 Communication by Holders with Other Holders.....................43
Section 11.04 Certificate and Opinion as to Conditions Precedent..............43
Section 11.05 Statements Required in Certificate or Opinion...................43
Section 11.06 When Treasury Securities Disregarded............................44
Section 11.07 Rules by Trustee, Paying Agent, Registrar.......................44
Section 11.08 Legal Holidays..................................................44
Section 11.09 Governing Law...................................................44
Section 11.10 No Adverse Interpretation of Other Agreement....................44
Section 11.11 No Recourse Against Others......................................45
Section 11.12 Successors......................................................45
Section 11.13 Duplicate Originals.............................................45
Section 11.14 Severability....................................................45
Section 11.15 Table of Contents, Headings, Etc. ..............................45
<PAGE> 7
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INDENTURE dated as of October 15, 1998, between Cellular Communications
of Puerto Rico, Inc., a Delaware corporation ("Company"), and The Chase
Manhattan Bank, a New York corporation, as Trustee ("Trustee").
The Company has duly authorized the creation of its 15% Subordinated
Notes due 2008 (the "Securities") and to provide therefor the Company has duly
authorized the execution and delivery of this Indenture. Each party agrees as
follows for the benefit of the other party and for the equal and proportionate
benefit of the Holders of the Securities:
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01 Definitions.
"Affiliate" means, with respect to any specified Person, (i) any other
Person directly or indirectly controlling or controlled by, or under direct or
indirect common control with, such specified Person or (ii) any officer,
director, or controlling stockholder of such other Person. For purposes of this
definition, the term "control" means (a) the power to direct the management and
policies of a Person, directly or through one or more intermediaries, whether
through the ownership of voting securities, by contract or otherwise, or (b)
without limiting the foregoing, the beneficial ownership of 10% or more of the
voting power of the voting common equity of such Person (on a fully diluted
basis) or of warrants or other rights to acquire such equity (whether or not
presently exercisable).
"Authenticating Agent" shall have the meaning provided in Section 7.12.
"Bankruptcy Law" shall have the meaning provided in Section 6.01.
"Board of Directors" means the Board of Directors of the Company or any
authorized committee of such 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.
"Business Day" means a day that is not a Legal Holiday.
"Common Stock" means the common stock, par value $.01 per share, of the
Company.
<PAGE> 8
Page 8
"Company" means the party named as such in the first paragraph to this
Indenture until a successor replaces it pursuant to the applicable provisions of
this Indenture and thereafter means the successor obligor under this Indenture
and on the Securities.
"Custodian" shall have the meaning provided in Section 6.01.
"Default" means any event which is, or after notice or passage of time
would be, an Event of Default.
"Event of Default" shall have the meaning provided in Section 6.01.
"Exchange Offer" means the Company's offer, dated October 15, 1998, to
exchange Securities for Common Stock, as such offer may be supplemented or
amended.
"Holder", "holder" or "Securityholder" means the person in whose name a
Security is registered on the Registrar's books.
"Indebtedness" of any person means (a) any indebtedness of such person,
contingent or otherwise, in respect of borrowed money (whether or not the
recourse of the lender is to the whole of the assets of such person or only to a
portion thereof), or evidenced by bonds, notes, debentures or similar
instruments or letters of credit, or representing the balance deferred and
unpaid of the purchase price of any property, including any such indebtedness
incurred in connection with the acquisition by such person or any of its
subsidiaries of any other business or entity, if and to the extent such
indebtedness would appear as a liability upon a balance sheet of such person
prepared in accordance with generally accepted accounting principles, including
for such purpose obligations under capitalized leases, and (b) any guaranty,
endorsement (other than for collection or deposit in the ordinary course of
business), discount with recourse, agreement (contingent or otherwise) to
purchase, repurchase or otherwise acquire or to supply or advance funds with
respect to, or to become liable with respect to (directly or indirectly) any
indebtedness, obligation, liability or dividend of any person, but it shall not
include indebtedness or amounts owed (except to banks, or other financing
institutions) for compensation to employees, for goods or materials purchased,
or services utilized, in the ordinary course of business of such person. For
purposes hereof, a "capitalized lease" shall be deemed to mean a lease of real
or personal property which, in accordance with generally accepted accounting
principles, is required to be capitalized.
"Indenture" means this Indenture as amended, restated or supplemented
from time to time.
"Initial Aggregate Principal Amount" means an aggregate principal
amount of Securities equal to $ __________, which aggregate principal amount was
determined in
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accordance with the following formula:
C x T where C = the aggregate principal amount of Securities exchanged by the
Company for each share of Common Stock accepted by the Company in the Exchange
Offer; and T = the number of shares of Common Stock accepted for exchange by the
Company pursuant to the Exchange Offer.
"Legal Holiday" shall have the meaning provided in Section 11.08.
"Maximum Aggregate Principal Amount" means the Initial Aggregate
Principal Amount plus the Secondary Aggregate Principal Amount.
"Officer" means the Chairman of the Board, the Chief Executive Officer,
the President, the Chief Operating Officer, any Vice President, the Chief
Financial Officer, the Treasurer, any Assistant Treasurer, the Secretary or the
Controller of the Company.
"Officers' Certificate" means a certificate signed by two Officers, one
of whom, for purposes of Section 4.04, must be the principal executive officer,
the principal financial officer or the principal accounting officer of the
Company. See Sections 11.04 and 11.05.
"Opinion of Counsel" means a written opinion from legal counsel who is
reasonably acceptable to the Trustee. The counsel may be an employee of or
counsel to the Company or the Trustee. See Sections 11.04 and 11.05.
"Paying Agent" shall have the meaning provided in Section 2.03.
"person" means any individual, corporation, partnership, joint venture,
association, joint stock company, trust, unincorporated organization or
government or other agency or political subdivision thereof or any other entity.
"Predecessor Securities" 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 2.07 in lieu of a lost,
destroyed or stolen Security shall be deemed to evidence the same debt as the
lost, destroyed or stolen Security.
"principal" of a debt security, including the Securities, means the
principal of the Security plus, when appropriate, the premium, if any, on the
security.
"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 and
the Securities.
"Redemption Price" when used with respect to any Security to be
redeemed
<PAGE> 10
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means the price at which it is to be redeemed pursuant to this
Indenture and the Securities.
"Registrar" shall have the meaning provided in Section 2.03.
"SEC" means the Securities and Exchange Commission.
"Secondary Securities" shall have the meaning specified in each
Security.
"Secondary Aggregate Principal Amount" means the aggregate principal
amount of Securities determined in accordance with the following formula:
I x 1.35, where I = Initial Aggregate Principal Amount
"Securities" means any of the Company's 15% Subordinated Notes due
2008, in the form of Exhibit A hereto, including any Secondary Securities, as
amended or supplemented from time to time, that are authenticated and issued
under this Indenture.
"Senior Indebtedness" means, with respect to any person, (i) the
principal, premium, if any, and interest in respect of (A) indebtedness of such
person for money borrowed, and (B) indebtedness evidenced by securities,
debentures, bonds or other similar instruments issued by such person, (ii) all
capital lease obligations of such person, (iii) all obligations of such person
issued or assumed as the deferred purchase price of property, all conditional
sale obligations of such person and all obligations of such person under any
title retention agreement (but excluding trade accounts payable arising in the
ordinary course of business), (iv) all obligations of such person for the
reimbursement on any letter of credit, banker's acceptance, security purchase
facility or similar credit transaction, (v) all obligations of the type referred
to in clauses (i) through (iv) above of other persons for the payment of which
such obligor is responsible or liable as obligor, guarantor or otherwise and
(vi) all obligations of the type referred to in clauses (i) through (v) above of
other persons secured by any lien on any property or asset of such obligor
(whether or not such obligation is assumed by such obligor), except for (1) any
such indebtedness that is by its terms subordinated to or ranks pari passu with
the Securities; (2) any indebtedness of the Company that, when incurred, was
without recourse to the Company; or (3) any trade payables. Such Senior
Indebtedness shall continue to be Senior Indebtedness and be entitled to the
benefits of the subordination provisions of Article X of this Indenture
irrespective of any amendment, modification or waiver of any term of such Senior
Indebtedness.
"Significant Subsidiary" means any Subsidiary which is a "significant
subsidiary" within the meaning of Rule 1-02(w) of Regulation S-X under the
Securities Act of 1933, as amended.
"subsidiary" means, with respect to any person, (i) any corporation of
which at least a majority in interest of the outstanding stock having by the
terms thereof voting
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Page 11
power under ordinary circumstances to elect a majority of the directors of such
corporation, irrespective of whether or not at the time stock of any other class
or classes of such corporation shall have or might have voting power by reason
of the happening of any contingency, is at the time, directly or indirectly,
owned or controlled by such person, or by one or more other corporations a
majority in interest of such stock of which is similarly owned or controlled, or
by such person and one or more other corporations a majority in interest of such
stock of which is similarly owned or controlled and (ii) any other person (other
than a corporation) in which such person or any subsidiary directly or
indirectly, has at least a 50% ownership interest or over which it exercises
control.
"Subsidiary" means any subsidiary of the Company.
"TIA" means the Trust Indenture Act of 1939 as in effect on the date of
this Indenture (except as provided in Section 9.03).
"Trustee" means the party named as such in this Indenture until a
successor replaces it pursuant to the applicable provisions of this Indenture
and thereafter means the successor.
"Trust Officer" means the Chairman of the Board, the President or any
other officer or assistant officer of the Trustee assigned by the Trustee to
administer its corporate trust matters.
"U.S. Government Obligations" shall have the meaning provided in
Section 8.01.
"U.S. Legal Tender" means such coin or currency of the United States of
America as at the time of payment shall be legal tender for the payment of
public and private debts and, except for purposes of Article Eight hereof,
includes a check of the Company or a bank check payable in U.S. Legal Tender.
Section 1.02 Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the provision
is incorporated by reference in and made a part of this Indenture. The following
TIA terms used in this Indenture have the following meanings:
"Commission" means the SEC.
"indenture securities" means the Securities.
"indenture security holder" means a Securityholder or Holder.
"indenture to be qualified" means this Indenture.
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"indenture trustee" or "institutional trustee" means the Trustee.
"obligor" on the indenture securities means the Company.
All other TIA terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by SEC rule have the
meanings assigned to them.
Section 1.03 Rules of Construction.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with U.S. generally accepted
accounting principles;
(3) "or" is not exclusive; and
(4) words in the singular include the plural, and in the plural
include the singular.
ARTICLE II
THE SECURITIES
Section 2.01 Form and Dating.
The Securities and the Trustee's certificate of authentication relating
thereto shall be substantially in the forms set forth in Exhibit A to this
Indenture, with such appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Indenture. The Securities may
have notations, legends or endorsements required by law, stock exchange rule or
usage. The Company shall approve the forms of the Securities and any notation,
legend or endorsement on them. Each Security shall be dated the date of its
authentication.
The terms and provisions in the Securities shall constitute, and are
hereby expressly made, a part of this Indenture and, to the extent applicable,
the Company and the Trustee, by their execution and delivery of this Indenture,
expressly agree to such terms and provisions and to be bound thereby. However,
to the extent any provision of any Security conflicts with the express
provisions of this Indenture, the provisions of this Indenture shall govern and
be controlling.
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Section 2.02 Execution and Authentication; Denominations.
One Officer shall sign the Securities for the Company by manual or
facsimile signature.
If an Officer whose signature is on a Security no longer holds that
office at the time the Trustee authenticates the Security, the Security shall be
valid nevertheless.
A Security shall not be valid until an authorized officer of the
Trustee manually signs the certificate of authentication on the Security. The
signature shall be conclusive evidence that the Security has been authenticated
under this Indenture.
Upon a written order of the Company signed by two Officers of the
Company, the Trustee shall authenticate Securities from time to time and at any
time for original issue in the aggregate principal amount of up to the Maximum
Aggregate Principal Amount (Securities, other than Secondary Securities, to be
issued in an aggregate principal amount not exceeding the Initial Aggregate
Principal Amount and Secondary Securities to be issued in the circumstances
specified in paragraph 1 of the form of Security attached hereto as Exhibit A in
an aggregate principal amount not exceeding the Secondary Aggregate Principal
Amount). The aggregate principal amount of Securities issued and outstanding at
any time may not exceed such amount except as provided in Section 2.07.
The Securities shall be issuable only in registered form without
coupons and only in denominations of $1.00 and any integral multiples thereof.
The Company and the Trustee by their execution and authentication,
respectively, of the Securities, expressly agree to the terms and conditions
stated therein and to be bound thereby.
Section 2.03 Registrar and Paying Agent.
The Company shall maintain in the Borough of Manhattan, City of New
York, State of New York an office or agency where Securities may be presented
for registration of transfer or for exchange ("Registrar") and an office or
agency where Securities may be presented for payment ("Paying Agent"). The
Registrar shall keep a register of the Securities and of their transfer and
exchange. The Company may have one or more co-registrars and one or more
additional paying agents. The term "Paying Agent" includes any additional paying
agent. The term Registrar includes any co-registrar. The Company may change any
Paying Agent without prior notice to any Holder. The Company or any of its
Affiliates may act as Paying Agent or Registrar.
The Company shall enter into an appropriate agency agreement with any
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Registrar, Paying Agent or co-registrar not a party to this Indenture. The
agreement shall implement the provisions of this Indenture that relate to such
agent. The Company shall notify the Trustee of the name and address of any such
agent. If the Company fails to maintain a Registrar or Paying Agent, the Trustee
shall act as such.
The Company initially appoints the Trustee as Registrar and Paying
Agent.
Section 2.04 Paying Agent to Hold Money in Trust.
Subject to the provisions of Section 8.06 hereof, each Paying Agent
shall hold in trust for the benefit of Securityholders or the Trustee all money
held by the Paying Agent for the payment of principal of or interest on the
Securities, and shall notify the Trustee of any default by the Company in making
any such payment. If the Company or any of its Affiliates acts as Paying Agent,
it shall, on or before each due date of principal of or interest on the
Securities, segregate the money and hold it as a separate trust fund. The
Company at any time may require a Paying Agent to pay all money held by it to
the Trustee. Upon doing so the Paying Agent shall have no further liability for
the money.
Section 2.05 Securityholder Lists.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
Securityholders. If the Trustee is not the Registrar, the Company shall furnish
to the Trustee on or before each semi-annual interest payment date and at such
other times as the Trustee may request in writing a list in such form and as of
such date as the Trustee may reasonably require of the names and addresses of
Securityholders.
Section 2.06 Transfer and Exchange.
Where a Security is presented to the Registrar or a co-registrar with a
request to register a transfer, the Registrar shall register the transfer as
requested if its requirements therefor are met. Where Securities are presented
to the Registrar or a co-registrar with a request to exchange them for an equal
principal amount of Securities of other denominations, the Registrar shall make
the exchange as requested if the same requirements are met. To permit transfers
and exchanges, the Company shall execute and the Trustee shall authenticate
Securities at the Registrar's request. No service charge shall be made for any
registration of transfer or exchange (except as otherwise expressly permitted
herein), but the Company may require payment of a sum sufficient to cover any
transfer tax or similar governmental charge payable in connection therewith
(other than any such transfer tax or similar governmental charge payable upon
exchanges pursuant to Sections 2.09, 3.06 or 9.05 hereof).
The Company shall not be required (i) to issue, register the transfer
of or
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exchange any Security for a period beginning at the opening of business 15 days
before the day of any selection of Securities to be redeemed under Section 3.02
hereof and ending at the close of business on the day of selection, or (ii) to
register the transfer, or exchange, of any Security so selected for redemption
in whole or in part, except the unredeemed portion of any Security being
redeemed in part.
Section 2.07 Replacement Securities.
If the Holder of a Security claims that the Security has been lost,
destroyed or wrongfully taken, or if such Security is mutilated and delivered to
the Trustee, the Company shall issue and the Trustee shall authenticate a
replacement Security if the Trustees' and the Company's requirements therefor
are met. If required by the Trustee or the Company, an indemnity bond must be
sufficient in the judgment of the Company and the Trustee to protect the
Company, the Trustee, the Paying Agent, the Registrar or any coregistrar from
any loss which any of them may suffer if a Security is replaced. The Company and
the Trustee may charge for its expenses in replacing a Security. Every
replacement Security is an additional obligation of the Company.
In case any such mutilated, destroyed, lost or wrongfully taken
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.
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 wrongfully taken Securities.
Section 2.08 Outstanding Securities.
Securities outstanding at any time are all Securities authenticated by
the Trustee except for those cancelled by it, those delivered to it for
cancellation, and those described in this Section as not outstanding. Subject to
the provisions of Section 11.06 hereof, a Security does not cease to be
outstanding because the Company or an Affiliate holds the Security.
If a Security is replaced pursuant to Section 2.07, it ceases to be
outstanding unless the Trustee receives proof satisfactory to it that the
replaced Security is held by a bona fide purchaser.
If the Paying Agent holds on a Redemption Date or maturity date money
sufficient to pay Securities payable on that date, then on and after the date
such Securities shall cease to be outstanding and interest on them ceases to
accrue.
Section 2.09 Temporary Securities.
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Until definitive Securities are ready for delivery, the Company may
prepare and the Trustee shall upon a written order of the Company signed by two
Officers of the Company, authenticate temporary Securities. Temporary Securities
shall be substantially in the form of definitive Securities but may have
variations that the Company considers appropriate for temporary Securities.
Without unreasonable delay, the Company shall prepare and the Trustee shall
authenticate definitive Securities in exchange for temporary Securities.
Section 2.10 Cancellation.
The Company at any time may deliver Securities to the Trustee for
cancellation. The Registrar and the Paying Agent shall forward to the Trustee
any Securities surrendered to them for transfer, exchange or payment. The
Trustee and no one else shall cancel all Securities surrendered for transfer,
exchange, payment or cancellation. The Trustee shall dispose of canceled
Securities as the Company directs. Subject to Section 2.07, the Company may not
issue new Securities to replace Securities it has paid or delivered to the
Trustee for cancellation.
Section 2.11 Defaulted Interest.
If the Company defaults in a payment of interest on the Securities, it
shall pay the defaulted interest to the persons who are Securityholders on a
subsequent special record date. The Company shall fix the record date and
payment date provided that no such record date shall be less than 10 days before
the related payment date for such defaulted interest. At least 15 days before
the record date, the Company shall mail to each Securityholder a notice that
states the record date, the payment date, and the amount of defaulted interest
to be paid. The Company may pay defaulted interest in any other lawful manner.
ARTICLE III
REDEMPTION
Section 3.01 Notices to Trustee.
If the Company elects to redeem Securities pursuant to paragraph 5 of
the Securities, it shall notify the Trustee of the Redemption Date and the
principal amount of Securities to be redeemed at least 50 days (unless a shorter
notice shall be satisfactory to the Trustee) before the Redemption Date.
Section 3.02 Selection of Securities to be Redeemed or Purchased.
If less than all Securities are to be redeemed, selection of
Securities for
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redemption shall be made by the Trustee in compliance with the requirements of
the principal national securities exchange, if any, on which the Securities are
listed or, if the Securities are not so listed, on a pro rata basis or by lot
or, in either case, by such other method as the Trustee deems fair and
appropriate, provided that no Securities with a principal amount of $1.00 or
less shall be redeemed in part. Securities and portions thereof selected by the
Trustee shall be in amounts of $1.00 or whole multiples of $1.00. If any
Securities are to be redeemed in part only, the notice of redemption that
relates to such Securities shall state the portion of the principal amount
thereof to be redeemed. New Securities in principal amount equal to the
unredeemed portion thereof shall be issued in the name of the Holder thereof
upon cancellation of the original Securities. On and after the redemption date,
interest shall cease to accrue on Securities or portions thereof called for
redemption.
Section 3.03 Notice of Redemption.
At least 30 days but not more than 60 days before a Redemption Date,
the Company shall cause to be mailed a notice of redemption by first class mail
to each Holder of Securities to be redeemed.
The notice shall identify the Securities or portions thereof to be
redeemed and shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) the name and address of the Paying Agent;
(4) in the event that any Security is to be redeemed in part only,
the portion of the principal amount thereof to be redeemed and
that, on and after the Redemption Date, upon surrender of such
Security, a new Security or Securities in principal amount
equal to the unredeemed portion thereof will be issued upon
cancellation of the original Security;
(5) that Securities called for redemption must be surrendered to
the Paying Agent to collect the Redemption Price; and
(6) that interest on Securities called for redemption ceases to
accrue on and after the Redemption Date.
At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at the Company's expense.
Section 3.04 Effect of Notice of Redemption.
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Once notice of redemption is mailed, Securities called for redemption
become due and payable on the Redemption Date and at the Redemption Price. Upon
surrender to the Paying Agent, such Securities shall be paid at the Redemption
Price, plus accrued interest to the Redemption Date provided that if the
Redemption Date is after a regular interest payment record date and on or prior
to the Interest Payment Date, the accrued interest shall be payable to the
Holder of the redeemed Securities registered on the relevant record date, and
provided, further, that if a Redemption Date is a Legal Holiday, payment shall
be made on the next succeeding Business Day and no interest shall accrue for the
period from such Redemption Date to such succeeding Business Day.
Section 3.05 Deposit of Redemption Price.
On or before the Redemption Date, the Company shall deposit with the
Paying Agent U.S. Legal Tender sufficient to pay the Redemption Price of and
accrued interest on all Securities to be redeemed on that date. On and after any
Redemption Date, if money sufficient to pay the Redemption Price of and accrued
interest on Securities called for redemption shall have been made available in
accordance with the preceding paragraph, the Securities called for redemption
will cease to accrue interest and the only right of the Holders of such
Securities will be to receive payment of the redemption price of and, subject to
the first proviso in Section 3.04, accrued and unpaid interest on such
Securities to the Redemption Date. If any Security called for redemption shall
not be so paid, interest will be paid, from the Redemption Date until such
redemption payment is made, on the unpaid principal of the Security and any
interest not paid on such unpaid principal, in each case, at the rate and in the
manner provided in the Securities.
Section 3.06 Securities Redeemed in Part.
Upon surrender of a Security that is redeemed in part, the Trustee
shall authenticate for the Holder a new Security equal in principal amount to
the unredeemed portion of the Security surrendered.
Section 3.07 Optional Redemption Provisions.
The Company shall not have the right to redeem any Securities prior to
November 15, 1999. At any time on or after November 15, 1999, the Company will
have the right to redeem all or any part of the Securities in cash at a
Redemption Price equal to 102% of the aggregate principal amount thereof in each
case together with accrued and unpaid interest, if any, to the applicable
Redemption Date (subject to the right of Holders of record on the relevant
record date to receive interest due on an Interest Payment Date that is on or
prior to the Redemption Date).
ARTICLE IV
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COVENANTS
Section 4.01 Payment of Securities.
The Company shall pay the principal of and interest on the Securities
on the dates and in the manner provided in the Securities and this Indenture. An
installment of principal of or interest on the Securities shall be considered
paid on the date it is due if the Trustee or Paying Agent holds on that date
U.S. Legal Tender designated for and sufficient to pay the installment; provided
that interest which, under the Securities, may be paid with Secondary Securities
shall be considered paid on the date due if the Paying Agent, if other than the
Company or any Affiliate thereof, holds on the due date duly authenticated
Secondary Securities (along with the amount of cash, in immediately available
funds, necessary to satisfy the requirement that Secondary Securities that would
be in incremental amounts of less than $1.00 shall be payable in cash)
sufficient to pay all interest then due. Interest will be computed on the basis
of a 360-day year comprised of twelve 30-day months and, for periods not
involving a full calendar month, the actual number of days elapsed (but not to
exceed 30 days).
The Company shall pay interest on overdue principal at the rate borne
by the Securities; it shall pay interest on overdue installments of interest at
the same rate to the extent lawful.
Section 4.02 Maintenance of Office or Agency.
The Company will maintain in the County of New York, The City of New
York, an office or agency where Securities may be presented or surrendered for
payment, where Securities may be surrendered for registration of transfer or
exchange and where notices and demands to or upon the Company in respect of the
Securities and this Indenture may be served. 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 address of the Trustee set forth in Section 11.02.
The Company may also from time to time designate one or more other
offices or agencies where the Securities may be presented or surrendered for any
or all such purposes and may from time to time rescind such designations;
provided, however, that no such designation or rescission shall in any manner
relieve the Company of its obligation to maintain an office or agency in the
County of New York, The City of New York for such purpose.
Section 4.03 Corporate Existence.
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Subject to Article 5, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence and the corporate, partnership or other existence of each Significant
Subsidiary in accordance with the respective organizational documents of each
Significant Subsidiary and the rights (charter and statutory), licenses and
franchises of the Company and each Significant Subsidiary; provided, however,
that the Company shall not be required to preserve, with respect to itself, any
material right, license or franchise, and with respect to its Significant
Subsidiaries, any such existence, material right, license or franchise if the
Board of Directors, or the board of directors or managing partners of the
Significant Subsidiary concerned, shall determine that the preservation thereof
is no longer desirable in the conduct of the business of the Company and the
Subsidiaries taken as a whole.
Section 4.04 Compliance Certificate.
The Company shall deliver to the Trustee within 90 days after the end
of each fiscal year of the Company an Officers' Certificate stating whether or
not the signers know of any default by the Company in performing the conditions
and covenants contained in this Indenture. If they do know of such a default,
the certificate shall describe the default.
Section 4.05 Reports.
The Company shall file with the Trustee within 15 days after it files
them with the SEC copies of the quarterly and annual reports and of the
information, documents, and other reports (or copies of such portions of any of
the foregoing as the SEC may by rules and regulations prescribe) which the
Company is required to file with the SEC pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"). The Company
also shall comply with the other provisions of TIA Section 314(a).
So long as any of the Securities remain outstanding, the Company shall
cause annual and quarterly reports, containing such financial statements and
other information concerning the business and affairs of the Company as would be
required to be included in annual and quarterly reports required to be filed
with the SEC, pursuant to Section 13 or 15(d) of the Exchange Act, by an issuer
of a security registered with the SEC pursuant to Section 12 of the Exchange
Act, to be mailed to the Holders at their addresses appearing in the register of
Securities maintained by the Registrar.
ARTICLE V
SUCCESSOR CORPORATION
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Section 5.01 When Company May Merge, Etc.
The Company shall not consolidate with or merge into any other
corporation or transfer its properties and assets substantially as an entirety
to any person, unless:
(1) either the Company shall be the continuing corporation, or the
corporation (if other than the Company) formed by such
consolidation or into which the Company is merged or to which
the properties and assets of the Company substantially as an
entirety are transferred shall expressly assume, by an
indenture supplemental hereto, executed and delivered to the
Trustee, in form satisfactory to the Trustee, all the
obligations of the Company under the Securities and this
Indenture;
(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 happened
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 or transfer and such supplemental
indenture comply with this Article Five and that all
conditions precedent herein provided for relating to such
transaction have been complied with.
The successor corporation formed by such consolidation or into which
the Company is merged or to which such transfer 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 corporation had been
named as the Company herein, and thereafter the predecessor corporation shall be
relieved of all obligations and covenants under the Indenture and the
Securities, and in the event of such conveyance or transfer any such predecessor
corporation may be dissolved and liquidated.
ARTICLE VI
DEFAULTS AND REMEDIES
Section 6.01 Events of Default.
An "Event of Default" with respect to any Securities occurs if:
(1) the Company defaults in the payment of interest on any
Security when the same becomes due and payable and the default
continues for a period of 30 days; or
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(2) the Company defaults in the payment of principal, of any
Security when the same becomes due and payable at maturity,
upon redemption or otherwise; or
(3) the Company fails to comply with any of its other agreements
in the Securities or this Indenture, and the default continues
for a period of 45 days after the Company receives written
notice thereof specifying the default from the Trustee or the
Company and the Trustee receive written notice thereof
specifying the default from the holders of at least 25% in
aggregate principal amount of outstanding securities. The
notice must specify the default, demand that it be remedied
and state that the notice is a "Notice of Default."
(4) an event or events of default, as defined in any one or more
mortgages, indentures or instruments under which there may be
issued, or by which there may be secured or evidenced, any
Indebtedness of the Company, whether such Indebtedness now
exists or shall hereafter be created, shall happen and shall
entitle the holders of such Indebtedness to declare an
aggregate principal amount of at least $25,000,000 of such
Indebtedness due and payable prior to the date on which it
would otherwise have become due and payable and such event of
default shall not have been cured in accordance with the
provisions of such instrument, or such Indebtedness shall not
have been discharged, or such acceleration shall not have been
rescinded, within a period of 30 days after there shall have
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 a written notice specifying such event or events of
default and requiring the Company to cause such event of
default to be cured, or such Indebtedness to be discharged or
such acceleration to be rescinded, and stating that such
notice is a "Notice of Default" hereunder; provided, however,
that the Company is not in good faith contesting in
appropriate proceedings the occurrence of such an event of
default; or
(5) the Company or any Significant Subsidiary pursuant to or
within the meaning of any Bankruptcy Law:
(A) commences a voluntary case;
(B) consents to the entry of an order for relief against
it in an involuntary case;
(C) consents to the appointment of a Custodian of it or
for all or
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substantially all of its property;
(D) makes a general assignment for the benefit of its
creditors; or
(6) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that:
(A) is for relief against the Company or any Significant
Subsidiary in an involuntary case;
(B) appoints a Custodian of the Company or any
Significant Subsidiary or for all or substantially
all of its property; or
(C) orders the liquidation of the Company or any
Significant Subsidiary, and the order or decree
remains unstayed and in effect for 90 days.
The term "Bankruptcy Law" means Title 11, U.S. Code or any similar
federal or state law for the relief of debtors. The term "Custodian" means any
receiver, trustee, assignee, liquidator or similar official under any Bankruptcy
Law.
Section 6.02 Acceleration.
If an Event of Default occurs and is continuing, the Trustee by notice
to the Company, or the Holders of at least 25% in principal amount of the
outstanding Securities by notice to the Company and the Trustee, may declare the
principal amount of all the Securities together with accrued interest thereon,
but in no event more than the maximum amount of principal and interest thereon
allowed by law, to be due and payable immediately. Upon any such declaration
such principal and interest shall be payable immediately.
At any time after such a declaration of acceleration 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 Seven provided, the Holders of a
majority in principal amount of the outstanding Securities, 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 installments of interest on the
Securities;
(B) the principal of any Securities that have become due
otherwise than by such declaration of acceleration
(together with interest, if any, thereon);
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(C) to the extent that payment of such interest is
lawful, interest on overdue interest at the rate
borne by the 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, attorneys and counsel; and
(2) all existing Events of Default have been cured or waived and
if the rescission would not conflict with any judgment or
decree.
Section 6.03 Other Remedies.
If an Event of Default occurs and is continuing, the Trustee may pursue
any available remedy by proceeding at law or in equity to collect the payment of
principal of, premium, if any, or interest on the Securities or to enforce the
performance of any provisions of the Securities or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any
of the Securities or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Securityholder in exercising any right or remedy
accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. No remedy is
exclusive of any other remedy. All available remedies are cumulative.
Section 6.04 Waiver of Past Defaults.
Subject to Section 9.02 the Holders of a majority in principal amount
of outstanding Securities by notice to the Trustee may waive an existing Default
and its consequences. When a Default is waived, it is cured and stops
continuing. No waiver shall extend to any subsequent or other Default or Event
of Default or impair any right consequent thereto.
Section 6.05 Control by Majority.
The Holders of a majority in principal amount of the outstanding
Securities 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. However, subject to Section 7.01, the Trustee may refuse to
follow any direction that conflicts with law or this Indenture, that is unduly
prejudicial to the rights of another Securityholder, or that would involve the
Trustee in personal liability.
Section 6.06 Limitation on Suits.
A Securityholder may not pursue any remedy with respect to this
Indenture or
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the Securities unless:
(1) the Holder gives to the Trustee written notice of a continuing
Event of Default;
(2) the Holders of at least 25% in principal amount of the
outstanding Securities make a written request to the Trustee
to pursue the remedy;
(3) such Holder or Holders offer to the Trustee indemnity
satisfactory to the Trustee against any loss, liability or
expense;
(4) the Trustee does not comply with the request within 60 days
after receipt of the request and the offer of indemnity; and
(5) during such 60-day period the Holders of a majority in
principal amount of the then outstanding Securities do not
give the Trustee a direction inconsistent with the request.
A Securityholder may not use this Indenture to prejudice the rights of
another Securityholder or to obtain a preference or priority over another
Securityholder.
Section 6.07 Rights of Holders to Receive Payment.
Notwithstanding any other provision of this Indenture, the right of any
Holder of a Security to receive payment of principal or interest on the
Security, on or after the respective due dates expressed or provided for in the
Security or to bring suit for the enforcement of any such payment on or after
such respective dates, shall not be impaired or affected without the consent of
the Holder.
Section 6.08 Collection Suit by Trustee.
If an Event of Default in payment of interest or principal specified in
Section 6.01(l) or (2) occurs and is continuing, the Trustee may recover
judgment in its own name and as trustee of an express trust against the Company
for the whole amount of principal, and interest remaining unpaid on the
Securities and interest on overdue principal and interest (to the extent lawful)
and such further amount as shall be sufficient to cover the costs and expenses
of collection, including the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel.
Section 6.09 Trustee May File Proofs of Claim.
The Trustee may file such proofs of claim and other papers or documents
as may be necessary or advisable in order to have the claims of the Trustee and
the
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Securityholders allowed in any judicial proceedings relative to the Company,
its creditors or its property. Nothing herein shall be deemed to have authorized
the Trustee to authorize or consent to or accept or adopt on behalf of any
Securityholder any plan of reorganization, arrangement, adjustment or
composition affecting the Securities or the rights of any Securityholder, or to
have authorized the Trustee to vote in respect of the claim of any
Securityholder in any such proceeding.
Section 6.10 Priorities.
If the Trustee collects any money pursuant to this Article, it shall
pay out the money in the following order:
First: to the Trustee for amounts due under Section 7.07;
Second: Subject to Article X, to Securityholders for amounts due and
unpaid on the Securities for principal, and interest, ratably, without
preference or priority of any kind, according to the amounts due and payable on
the Securities for principal and interest, respectively; and
Third: to the Company.
The Trustee may fix a record date and payment date for any payment to
Securityholders.
Section 6.11 Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted by
it as Trustee, a court in its discretion may require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in the suit, having due regard to
the merits and good faith of the claims or defenses made by the party litigant.
This Section does not apply to a suit by the Trustee, a suit by a Holder
pursuant to Section 6.07, or a suit by Holders of more than 10% in principal
amount of the outstanding Securities.
ARTICLE VII
TRUSTEE
The Trustee hereby accepts the trust imposed upon it by this Indenture
and covenants and agrees to perform the same, as herein expressed.
Section 7.01 Duties of Trustee.
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(a) If an Event of Default has occurred and is continuing, the
Trustee shall exercise its rights and powers and use the same
degree of care and skill in their exercise as a prudent man
would exercise or use under the circumstances in the conduct
of his own affairs.
(b) Except during the continuance of an Event of Default:
(i) The Trustee need perform only those duties that are
specifically set forth in this Indenture and no
others.
(ii) In the absence of bad faith on its part, the Trustee
conclusively may rely, as to the truth of the
statements and the correctness of the opinions
expressed therein, upon certificates or opinions
furnished to the Trustee and conforming to the
requirements of this Indenture. However, the Trustee
shall examine the certificates and opinions, which by
any provision of this Indenture are specifically
required to be furnished to the Trustee, to determine
whether or not they conform to the requirements of
this Indenture and confirm the correctness of all
mathematical computations.
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act, or its own
willful misconduct, except that:
(i) This paragraph does not limit the effect of paragraph
(b) of this Section.
(ii) The Trustee shall not be liable for any error of
judgment made in good faith by a Trust Officer,
unless it is proved that the Trustee was negligent in
ascertaining the pertinent facts.
(iii) The Trustee shall not be liable with respect to any
action it takes or omits to take in good faith in
accordance with a direction received by it pursuant
to Section 6.05.
(d) Every provision of this Indenture that in any way relates to
the Trustee is subject to paragraphs (a), (b) and (c) of this
Section.
(e) The Trustee may refuse to perform any duty or exercise any
right or power unless it receives indemnity satisfactory to it
against any loss, liability or expense.
(f) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree with the
Company.
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Section 7.02 Rights of Trustee.
(a) The Trustee may rely on any document believed by it to be
genuine and to have been signed or presented by the proper
person. The Trustee need not investigate any fact or matter
stated in the document.
(b) Before the Trustee acts or refrains from acting, it may
require an Officers' Certificate or an Opinion of Counsel as
to such matters as it shall reasonably determine. The Trustee
shall not be liable for any action it takes or omits to take
in good faith in reliance on the certificate or opinion.
(c) The Trustee may act through its attorneys or agents (which
shall not include its employees) and shall not be responsible
for the misconduct or negligence of any agent appointed with
due care.
(d) The Trustee shall not be liable for any action it takes or
omits to take in good faith which it believes to be authorized
or within its rights or powers.
(e) The Trustee shall not be charged with knowledge of any Default
or Event of Default under subsection (3) or (4) of Section
6.01 or of the identity of any Significant Subsidiary unless
either (1) a Trust Officer of the Trustee assigned to its
corporate trust office shall have actual knowledge thereof, or
(2) the Trustee shall have received written notice thereof in
accordance with Section 11.02 from the Company or any
Securityholder.
Section 7.03 Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become the
owner or pledgee of Securities and may otherwise deal with the Company or its
Affiliates with the same rights it would have if it were not Trustee. Any Paying
Agent, Registrar or co-registrar may do the same with like rights. However, the
Trustee must comply with Sections 7.10 and 7.11.
Section 7.04 Trustee's Disclaimer.
The Trustee makes no representation as to the validity or adequacy of
this Indenture or the Securities, and it shall not be responsible for any
statement in the Securities other than its certificate of authentication.
Section 7.05 Notice of Defaults.
If a Default occurs and is continuing and if it is known to the
Trustee, the Trustee shall mail to each Securityholder notice of the Default
within 90 days after it occurs.
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Except in the case of a default in payment on any Security, the Trustee may
withhold the notice if and so long as a committee of its Trust Officers in good
faith determines that withholding the notice is in the interests of
Securityholders.
Section 7.06 Reports by Trustee to Holders.
Within 60 days after each May 15, beginning with the May 15 following
the date of this Indenture, the Trustee shall mail to each Securityholder a
brief report dated as of such May 15 that complies with TIA Section 313(a), if,
and to the extent, required by TIA Section 313(a). The Trustee also shall comply
with TIA Section 313(b)(2) and (c).
A copy of each report at the time of its mailing to Securityholders
shall be filed with the SEC and any stock exchange on which the Securities are
listed. The Company shall notify the Trustee if and when the Securities are
listed on any stock exchange.
Section 7.07 Compensation and Indemnity.
The Company shall pay to the Trustee from time to time reasonable
compensation for its services. The Company shall reimburse the Trustee upon
request for all reasonable out-of-pocket expenses incurred by it. Such expenses
may include the reasonable compensation and expenses of the Trustee's agents and
counsel. The Company shall indemnify the Trustee against any loss or liability
incurred by it. The Trustee shall notify the Company promptly of any claim for
which it may seek indemnity. The Company shall defend the claim and the Trustee
shall cooperate in the defense. The Trustee may have separate counsel and the
Company shall pay the reasonable fees and expenses of such counsel. The Company
need not pay for any settlement made without its consent. The Company need not
reimburse any expense or indemnify against any loss or liability incurred by the
Trustee through negligence or bad faith.
To secure the Company's payment obligations in this Section, the
Trustee shall have a lien prior to the Securities on all money or property held
or collected by the Trustee, except money held in trust to pay principal,
premium, if any, and interest on particular Securities.
Without prejudice to any other rights available to the Trustee under
applicable law, when the Trustee incurs expenses or renders services after an
Event of Default specified in Section 6.01(5) or (6) occurs, the expenses and
the compensation for the services are intended to constitute expenses of
administration under any Bankruptcy Law.
Section 7.08 Replacement of Trustee.
The Trustee may resign by so notifying the Company. The Holders of a
majority in principal amount of the Securities may remove the Trustee by so
notifying the
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removed Trustee and may appoint a successor Trustee with the Company's consent.
The Company may remove the Trustee if:
(i) the Trustee fails to comply with Section 7.10 unless
the Trustee's duty to resign is stayed by Section
310(b) of the Trust Indenture Act;
(ii) the Trustee is adjudged bankrupt or insolvent;
(iii) a receiver or other public officer takes charge of
the Trustee or its property; or
(iv) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, the Company shall promptly appoint a successor
Trustee except as provided in the second sentence of the preceding paragraph.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Immediately after that,
the retiring Trustee shall transfer all property held by it as Trustee to the
successor Trustee, subject to the lien provided for in Section 7.07, the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. A successor Trustee shall mail notice of its succession to
each Securityholder. Notwithstanding replacement of the Trustee pursuant to this
Section 7.08, the Company's obligations under Section 7.07 shall continue for
the benefit of the retiring Trustee with respect to expenses and liabilities
incurred by it prior to such replacement.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company or the
Holders of a majority in principal amount of the Securities may petition any
court of competent jurisdiction for the appointment of a successor Trustee.
If the Trustee fails to comply with Section 7.10, any Securityholder
who has been a bona fide Holder of a Security for at least six months may
petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor Trustee.
Section 7.09 Successor Trustee by Merger, Etc.
If the Trustee consolidates with, merges or converts into, or transfers
all or substantially all of its corporate trust assets to, another corporation,
the resulting, surviving or transferee corporation without any further act shall
be the successor
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Trustee.
Section 7.10 Eligibility; Disqualification.
This Indenture shall always have a Trustee who satisfies the
requirements of TIA Section 310(a)(1), (2) and (5). The Trustee shall have a
combined capital and surplus of at least $50,000,000 as set forth in its most
recent published annual report of condition. The Trustee shall comply with TIA
Section 310(b), subject to the penultimate paragraph thereof.
Section 7.11 Preferential Collection of Claims Against Company.
The Trustee shall comply with TIA Section 311(a), excluding any
creditor relationship listed in TIA Section 311(b). A Trustee who has resigned
or been removed shall be subject to TIA Section 311(a) to the extent indicated.
Section 7.12 Authenticating Agent.
If the Company so requests, there shall be an Authenticating Agent
appointed by the Trustee with power to act on its behalf and subject to its
direction in the authentication and delivery of Securities in connection with
the exchange, transfer or redemption thereof as fully to all intents and
purposes as though the Authenticating Agent had been expressly authorized by the
relevant Sections hereof to authenticate and deliver Securities, and Securities
so authenticated shall be entitled to the benefits of this Indenture and shall
be valid and obligatory for all purposes as though authenticated by the Trustee
hereunder, and for all purposes of this Indenture, the authentication and
delivery of Securities by the Authenticating Agent pursuant to this Section
shall be deemed to be the authentication and delivery of such Securities "by the
Trustee." Notwithstanding anything to the contrary contained in Section 2.02, or
in any other Section hereof, all authentication in connection with exchange,
transfer or redemption thereof shall be effected either by the Trustee or an
Authenticating Agent.
Any corporation into which any Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, consolidation or conversion to which any Authentication Agent
shall be a party, or any corporation succeeding to the corporate trust business
of any Authenticating Agent, shall be the successor of the Authenticating Agent
hereunder, if such successor corporation is otherwise eligible under this
Section, without the execution or filing of any paper or any further act on the
part of the parties hereto or the Authenticating Agent or such successor
corporation.
Any Authenticating Agent may at any time resign by giving written
notice of resignation to the Trustee and to the Company. The Trustee may at any
time terminate the agency of any Authenticating Agent by giving written notice
of termination to such
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Authenticating Agent and to the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time any
Authenticating Agent shall cease to be eligible under this Section, the Trustee
shall promptly appoint a successor Authenticating Agent, and shall give written
notice of such appointment to the Company.
Any Authenticating Agent by the acceptance of its appointment shall be
deemed to have agreed with the Trustee that: it will perform and carry out the
duties of an Authenticating Agent as herein set forth, including, without
limitation, the duties to authenticate and deliver Securities when presented to
it in connection with exchanges, registrations of transfer or redemptions
thereof; it will furnish from time to time, as requested by the Trustee,
appropriate records of all transactions carried out by it as Authenticating
Agent and will furnish the Trustee such other information and reports as the
Trustee may reasonably require; and it will indemnify the Trustee against any
loss, liability or expense incurred by the Trustee and will defend any claim
asserted against the Trustee by reason of any act or failure to act of the
Authenticating Agent but it shall have no liability for any action taken by it
at the specific written direction of the Trustee.
The Company agrees to pay to the Authenticating Agent from time to time
reasonable compensation for its services.
The provisions of Section 7.02, 7.03 and 7.04 shall bind and inure to
the benefit of any Authenticating Agent to the same extent that they bind and
inure to the benefit of the Trustee.
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ARTICLE VIII
SATISFACTION AND DISCHARGE OF INDENTURE
Section 8.01 Satisfaction, Discharge of the Indenture and Defeasance of the
Securities.
The Company shall be deemed to have paid and discharged the entire
Indebtedness on the Securities and the provisions of this Indenture (subject to
Section 8.03), if:
(1) The Company irrevocably deposits in trust with the Trustee,
pursuant to an irrevocable trust and security agreement in
form and substance reasonably satisfactory to the Trustee, (a)
U.S. Legal Tender sufficient, or (b) direct non-callable
obligations of, or non-callable obligations guaranteed by, the
United States of America for the payment of which obligation
or guarantee the full faith and credit of the United States of
America is pledged ("U.S. Government Obligations") maturing as
to principal and interest in such amounts and at such times as
are sufficient, without consideration of the reinvestment of
such interest and after payment of all Federal, state and
local taxes or other charges or assessments in respect thereof
payable by the Trustee, in the opinion of a nationally
recognized firm of independent public accountants expressed in
a written certification thereof (in form and substance
reasonably satisfactory to the Trustee) delivered to the
Trustee, or a combination of (a) and (b) sufficient to pay the
principal of, premium, if any, and interest on the outstanding
Securities on the dates on which any such payments are due and
payable in accordance with the terms of the Indenture and of
the Securities;
(2) Such deposits shall not cause the Trustee to have a
conflicting interest as defined in and for purposes of the
TIA;
(3) No Default or Event of Default shall have occurred or be
continuing on the date of such deposit or shall occur on or
before the 91st day after the date of such deposit;
(4) Such deposit will not result in a breach or violation of, or
constitute a default under, this Indenture or any other
instrument to which the Company is a party or by which it or
its property is bound;
(5) The deposit shall not result in the Company, the Trustee or
the trust becoming or being deemed to be an "investment
company" under the Investment Company Act of 1940;
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(6) The Holders shall have a perfected security interest under
applicable law in the U.S. Legal Tender or U.S. Government
Obligations deposited pursuant to Section 8.01(l) above; and
(7) The Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all
conditions precedent specified herein relating to the
defeasance contemplated by this Section 8.01 have been
complied with.
In the event all or any portion of the Securities are to be redeemed
through such irrevocable trust, the Company must make arrangements satisfactory
to the Trustee, at the time of such deposit, for the giving of the notice of
such redemption or redemptions by the Trustee in the name and at the expense of
the Company.
Section 8.02 Termination of the Company's Obligations upon Cancellation of the
Securities.
In addition to its rights under Section 8.01, the Company may terminate
all of its obligations under this Indenture (subject to Section 8.03) when:
(1) all Securities theretofore authenticated and delivered (other
than Securities which have been destroyed, lost or stolen and
which have been replaced or paid as provided in Section 2.07)
have been delivered to the Trustee for cancellation;
(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 specified herein relating to the
satisfaction and discharge of this indenture have been
complied with.
Section 8.03 Survival of Certain Obligations.
Notwithstanding the satisfaction and discharge of this indenture and of
the Securities referred to in Section 8.01 or 8.02, the respective rights,
immunities and obligations of the Company and the Trustee under Sections 2.02,
2.03, 2.04, 2.05, 2.06, 2.07, 4.02, 6.07, 7.07, 7.08, 8.05, 8.06 and 8.07 shall
survive until the Securities are no longer outstanding, and thereafter the
rights, immunities and obligations of the Company and the Trustee under Section
7.07, 8.05, 8.06 and 8.07 shall survive. Nothing contained in this Article VIII
shall abrogate any of the rights, immunities, obligations or duties of the
Trustee under this Indenture.
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Section 8.04 Acknowledgment of Discharge by Trustee.
After (i) the conditions of Section 8.01 or 8.02 have been satisfied,
(ii) the Company has paid or caused to be paid all other sums payable hereunder
by the Company and (iii) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent referred to in clause (i) above relating to the satisfaction and
discharge of this Indenture have been complied with, the Trustee upon request
shall acknowledge in writing the discharge of the Company's obligations under
this Indenture except for those surviving obligations specified in Section 8.03.
Section 8.05 Application of Trust Assets.
The Trustee shall hold any U.S. Legal Tender or U.S. Government
Obligations deposited with it in the irrevocable trust established pursuant to
Section 8.01. The Trustee shall apply the deposited U.S. Legal Tender or U.S.
Government Obligations, together with earnings thereon, through the Paying Agent
(other than the Company or any Affiliate thereof), in accordance with this
Indenture and the terms of the irrevocable trust agreement, to the payment of
principal of and interest on the Securities. The U.S. Legal Tender or U.S.
Government Obligations so held in trust and deposited with the Trustee in
compliance with Section 8.01 shall not be part of the trust estate under this
Indenture, but shall constitute a separate trust fund for the benefit of all
Holders entitled thereto and such U.S. Legal Tender and U.S. Government
Obligations shall not be subject to the claims of the holders of Senior
Indebtedness under Article Ten.
Section 8.06 Repayment to the Company.
Upon termination of the trust established pursuant to Section 8.01, the
Trustee and the Paying Agent shall promptly pay to the Company upon request any
excess U.S. Legal Tender or U.S. Government Obligations held by them.
The Trustee and the Paying Agent shall pay to the Company upon request,
and, if applicable, in accordance with the irrevocable trust established
pursuant to Section 8.01, any U.S. Legal Tender or U.S. Government Obligations
held by them for the payment of principal of, premium, if any, or interest on
the Securities that remain unclaimed for two years after the date on which such
payment shall have become due. After payment to the Company, all liability of
the Trustee and the Paying Agent with respect to such U.S. Legal Tender or U.S.
Government Obligations shall cease, and Holders entitled to such payment must
look to the Company for such payment as general creditors unless an applicable
abandoned property law designates another person.
Section 8.07 Reinstatement.
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If the Trustee or Paying Agent is unable to apply any U.S. Legal Tender
or U.S. Government Obligations in accordance with Section 8.01 by reason of any
legal proceeding or by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, the Company's obligations under this Indenture and the Securities
shall be revived and reinstated as though no deposit had occurred pursuant to
Section 8.01 until such time as the Trustee or Paying Agent is permitted to
apply all such U.S. Legal Tender or U.S. Government Obligations in accordance
with Section 8.01; provided, however, that if the Company has made any payment
of principal of, premium, if any, or interest on any Securities because of 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 U.S. Legal
Tender or U.S. Government Obligations held by the Trustee or Paying Agent.
ARTICLE IX
AMENDMENTS, SUPPLEMENTS AND WAIVERS
Section 9.01 Without Consent of Holders.
The Company and the Trustee may amend or supplement this Indenture or
the Securities without notice to or consent of any Securityholder:
(i) to cure any ambiguity, defect or inconsistency;
(ii) to comply with Article 5;
(iii) to make any change that does not materially adversely
affect the rights of any Securityholder.
Section 9.02 With Consent of Holders.
The Company may amend or supplement this Indenture or the Securities
without notice to any Securityholder but with the written consent of the Holders
of at least a majority in principal amount of the outstanding Securities. The
Holders of a majority in principal amount of the outstanding Securities may
waive compliance by the Company with any provision of this Indenture or the
Securities without notice to any Securityholder. However, without the consent of
each Securityholder affected, an amendment, supplement or waiver, including a
waiver pursuant to Section 6.04, may not:
(1) reduce the amount of Securities whose Holders must consent to
any amendment, supplement or waiver;
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(2) reduce the rate of or extend the time for payment of interest
on any Security;
(3) reduce the principal of or extend the fixed maturity of any
Security or alter the redemption provisions with respect
thereto;
(4) waive a default in the payment of the principal of, premium,
if any, interest on or redemption payment with respect to any
Security (except in rescission of acceleration of the
Securities by the Holders of at least a majority in aggregate
principal amount of the Securities and a waiver of the payment
default that resulted from such acceleration);
(5) make any Security payable in money other than that stated in
the Security;
(6) make any change in Section 6.04 or 6.07;
(7) make any change in the foregoing amendment and waiver
provisions of this Article 9; or
(8) make any change that adversely affects the subordination of
the Securities under Article Ten.
To secure a consent of the Holders under this Section 9.02, it shall
not be necessary for the Holders to approve the particular form of any proposed
amendment, supplement or waiver, but it shall be sufficient if such consent
approves the substance thereof.
After an amendment, supplement or waiver under this Section becomes
effective, the Company shall mail to Holders a notice briefly describing the
amendment or waiver.
Section 9.03 Compliance with Trust Indenture Act.
Every amendment to or supplement of this Indenture or the Securities
shall comply with the TIA as then in effect.
Section 9.04 Revocation and Effect of Consents.
A consent to an amendment, supplement or waiver by a Holder of a
Security shall bind the Holder and every subsequent Holder of a Security or
portion of a Security that evidences the same debt as the consenting Holder's
Security, even if notation of the consent is not made on any Security. However,
any such Holder or subsequent Holder may revoke the consent as to his Security
or portion of a Security. The Trustee
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must receive the notice of revocation before the date the amendment, supplement
or waiver becomes effective.
After an amendment, supplement or waiver becomes effective, it shall
bind the Holder of every such Security unless it makes a change described in
clause (1), (2), (3), (4), (5), (6), (7) or (8) of Section 9.02. In that case
the amendment, supplement or waiver shall bind each Holder of a Security who has
consented to it and every subsequent Holder of a Security or portion of a
Security that evidences the same debt as the consenting Holder's Security.
Section 9.05 Notation on or Exchange of Securities.
If an amendment, supplement or waiver changes the terms of a Security,
the Trustee may require the Holder of the Security to deliver it to the Trustee.
The Trustee may place an appropriate notation on the Security about the changed
terms and return it to the Holder. Alternatively, if the Company or the Trustee
so determines, the Company in exchange for the Security shall issue and the
Trustee shall authenticate a new Security that reflects the changed terms.
Section 9.06 Trustee to Sign Amendments, Etc.
The Trustee shall sign any amendment, supplement or waiver authorized
pursuant to this Article if the amendment, supplement or waiver does not
adversely affect the rights of the Trustee. If it does, the Trustee may but need
not sign it. The Company may not sign an amendment or supplement until the Board
of Directors approves it. The Trustee, subject to Sections 7.01 and 7.02, shall
be entitled to receive, and shall be fully protected in relying upon, an Opinion
of Counsel stating that any amendment, supplement or waiver is authorized by
this Indenture and complies with the provisions of this Article 9.
ARTICLE X
SUBORDINATION OF SECURITIES
Section 10.01 Agreement to Subordinate.
The Securities issued hereunder will be subordinate and junior in right
of payment to all Senior Indebtedness of the Company. No payment of principal
(including prepayments), premium, if any, or interest on the Securities (except
for payment in shares of capital stock of the Company or subordinated debt
securities of the Company (including Secondary Securities) that require no
payment of principal prior to the stated maturity of the Securities and that are
subordinated and junior in right of payment to Senior Indebtedness at least to
the same extent as the Securities) may be made at any time when (i) any Senior
Indebtedness is not paid when due, (ii) any applicable grace
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period with respect to any default on Senior Indebtedness has ended and such
default has not been cured or waived or ceased to exist, or (iii) the maturity
of any Senior Indebtedness has been accelerated because of a default.
No provision of this Article X shall prevent the occurrence of any
Default or Event of Default hereunder.
Section 10.02 Default on Senior Indebtedness.
In the event that, any payment shall be received by the Trustee when
such payment is prohibited by Section 10.01, such payment shall be held in trust
for the benefit of, and shall be paid over or delivered to, the holders of
Senior Indebtedness or their respective representatives, or to the trustee or
trustees under any indenture pursuant to which any of such Senior Indebtedness
may have been issued, as their respective interests may appear, but only to the
extent that the holders of the Senior Indebtedness (or their representative or
representatives or a trustee) notify the Trustee in writing, within 90 days of
such payment of the amounts then due and owing on such Senior Indebtedness and
only the amounts specified in such notice to the Trustee shall be paid to the
holders of such Senior Indebtedness.
Section 10.03 Liquidation; Dissolution; Bankruptcy.
Upon any distribution of assets to creditors upon any liquidation,
dissolution, winding up, reorganization, assignment for the benefit of
creditors, marshaling of assets or any bankruptcy, insolvency, debt
restructuring or similar proceedings in connection with any insolvency or
bankruptcy proceeding of the Company, all Senior Indebtedness must be paid in
full before the holders of the Securities are entitled to receive or retain any
payment in respect thereof; and upon any such dissolution or winding-up or
liquidation or reorganization or assignment, any payment by the Company, or
distribution of assets of the Company of any kind or character, whether in cash,
property or securities, to which the Securityholders or the Trustee would be
entitled to receive from the Company, except for the provisions of this Article
X, shall be paid by the Company or by any receiver, trustee in bankruptcy,
liquidating trustee, agent or other person making such payment or distribution,
or by the Securityholders or by the Trustee under the Indenture if received by
them or it, directly to the holders of Senior Indebtedness of the Company (pro
rata to such holders on the basis of the respective amounts of Senior
Indebtedness held by such holders, as calculated by the Company) or their
representative or representatives, or to the trustee or trustees under any
indenture pursuant to which any instruments evidencing such Senior Indebtedness
may have been issued, as their respective interests may appear, to the extent
necessary to pay all such Senior Indebtedness in full, in money or money's
worth, after giving effect to any concurrent payment or distribution to or for
the holders of such Senior Indebtedness, before any payment or distribution is
made to the Securityholders or to the Trustee.
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In the event that, notwithstanding the foregoing, any payment or
distribution of assets of the Company of any kind or character, whether in cash,
property or securities, prohibited by the foregoing, shall be received by the
Trustee or any Securityholder before all Senior Indebtedness is paid in full, or
provision is made for such payment in money in accordance with its terms, such
payment or distribution shall be held in trust for the benefit of and shall be
paid over or delivered to the holders of such Senior Indebtedness or their
representative or representatives, or to the trustee or trustees under any
indenture pursuant to which any instruments evidencing such Senior Indebtedness
may have been issued, as their respective interests may appear, as calculated by
the Company, for application to the payment of all Senior Indebtedness remaining
unpaid to the extent necessary to pay all such Senior Indebtedness in full in
money in accordance with its terms, after giving effect to any concurrent
payment or distribution to or for the benefit of the holders of such Senior
Indebtedness.
For purposes of this Article X, the words "cash, property or
securities" shall not be deemed to include shares of stock of the Company as
reorganized or readjusted, or securities of the Company or any other corporation
provided for by a plan of reorganization or readjustment, the payment of which
is subordinated at least to the extent provided in this Article X with respect
to the Securities to the payment of Senior Indebtedness that may at the time be
out standing, provided that (i) such Senior Indebtedness is assumed by the new
corporation, if any, resulting from any such reorganization or readjustment, and
(ii) the rights of the holders of such Senior Indebtedness are not, without the
consent of such holders, altered by such reorganization or readjustment. The
consolidation of the Company with, or the merger of the Company into, another
Person or the liquidation or dissolution of the Company following the sale,
conveyance or transfer of its property as an entirety, or substantially as an
entirety, to another Person upon the terms and conditions provided for in
Article V of this Indenture shall not be deemed a dissolution, winding-up,
liquidation or reorganization for the purposes of this Section 10.03 if such
other Person shall, as a part of such consolidation, merger, sale, conveyance,
transfer or comply with the conditions stated in Article V of this Indenture. In
no event shall "cash, property or securities" include Secondary Securities.
Section 10.04 Subrogation.
Subject to the payment in full of all Senior Indebtedness, the rights
of the Securityholders shall be subrogated to the rights of the holders of such
Senior Indebtedness to receive payments or distributions of cash, property or
securities of the Company, as the case may be, applicable to such Senior
Indebtedness until the principal of (and premium, if any) and interest on the
Securities shall be paid in full; and, for the purposes of such subrogation, no
payments or distributions to the holders of such Senior Indebtedness of any
cash, property or securities to which the Securityholders or the Trustee would
be entitled except for the provisions of this Article
<PAGE> 41
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X, and no payment over pursuant to the provisions of this Article X to or for
the benefit of the holders of such Senior Indebtedness by Securityholders or the
Trustee, shall, as between the Company, its creditors other than holders of
Senior Indebtedness and the holders of the Securities, be deemed to be a payment
by the Company to or on account of such Senior Indebtedness. It is understood
that the provisions of this Article X are and are intended solely for the
purposes of defining the relative rights of the holders of the Securities, on
the one hand, and the holders of such Senior Indebtedness on the other hand.
Nothing contained in this Article X or elsewhere in this Indenture or
in the Securities is intended to or shall impair, as between the Company, its
creditors other than the holders of Senior Indebtedness of the Company, and the
holders of the Securities, the obligation of the Company, which is absolute and
unconditional, to pay to the holders of the Securities the principal of (and
premium, if any) and interest on the Securities as and when the same shall
become due and payable in accordance with their terms, or is intended to or
shall affect the relative rights of the holders of the Securities and creditors
of the Company, as the case may be, other than the holders of Senior
Indebtedness of the Company, as the case may be, nor shall anything herein or
therein prevent the Trustee or the holder of any Security from exercising all
remedies otherwise permitted by applicable law upon default under the Indenture,
subject to the rights, if any, under this Article X of the holders of such
Senior Indebtedness in respect of cash, property or securities of the Company,
as the case may be, received upon the exercise of any such remedy.
Section 10.05 Trustee to Effectuate Subordination.
Each Securityholder by such Securityholder's acceptance thereof
authorizes and directs the Trustee on such Securityholder's behalf to take such
action as may be necessary or appropriate to effectuate the subordination
provided in this Article X and appoints the Trustee such Securityholder's
attorney-in-fact for any and all such purposes.
Section 10.06 Notice by the Company.
The Company shall give prompt written notice to the Trustee of any fact
known to the Company that would prohibit the making of any payment of monies to
or by the Trustee in respect of the Securities pursuant to the provisions of
this Article X. Notwithstanding the provisions of this Article X or any other
provision of this Indenture, the Trustee shall not be charged with knowledge of
the existence of any facts that would prohibit the making of any payment of
monies to or by the Trustee in respect of the Securities pursuant to the
provisions of this Article X, unless and until the Trustee shall have received
written notice thereof, in accordance with the provisions set forth in Section
11.02, from the Company or a holder or holders of Senior Indebtedness or from
any representative or trustee therefor; and before the receipt of any such
written notice,
<PAGE> 42
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the Trustee, subject to the provisions of Article VII of this Indenture, shall
be entitled in all respects to assume that no such facts exist; provided,
however, that if the Trustee shall not have received the notice provided for in
this Section 10.06 at least two Business Days prior to the date (i) upon which
by the terms hereof any money may become payable for any purpose (including,
without limitation, the payment of the principal of (or premium, if any) or
interest on any Security), or (ii) monies are deposited in trust pursuant to
Article VIII, then anything herein contained to the contrary notwithstanding,
the Trustee shall have full power and authority to receive such money and to
apply the same to the purposes for which they were received, and shall not be
affected by any notice to the contrary that may be received by it within two
Business Days prior to such date.
The Trustee, subject to the provisions of Article VII of this
Indenture, shall be entitled to conclusively rely on the delivery to it of a
written notice by a person representing himself to be a holder of Senior
Indebtedness (or a trustee or representative on behalf of such holder), as the
case may be, to establish that such notice has been given by a holder of such
Senior Indebtedness or a trustee or representative on behalf of any such holder
or holders. In the event that the Trustee determines in good faith that further
evidence is required with respect to the right of any person as a holder of such
Senior Indebtedness to participate in any payment or distribution pursuant to
this Article X, the Trustee may request such person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of such Senior
Indebtedness held by such person, the extent to which such person is entitled to
participate in such payment or distribution and any other facts pertinent to the
rights of such person under this Article X, and, if such evidence is not
furnished, the Trustee may defer any payment to such person pending judicial
determination as to the right of such person to receive such payment.
Upon any payment or distribution of assets of the Company referred to
in this Article X, the Trustee and the Securityholders shall be entitled to rely
upon any order or decree entered by any court of competent jurisdiction in which
such insolvency, bankruptcy, receivership, liquidation, reorganization,
dissolution, winding up or similar case or proceeding is pending, or a
certificate of the trustee in bankruptcy, liquidating trustee, custodian,
receiver, assignee for the benefit of creditors, agent or other person making
such payment or distribution, delivered to the Trustee or to the
Securityholders, for the purpose of ascertaining the persons entitled to
participate in such payment or distribution, the holders of Senior Indebtedness
and other indebtedness of the Company, the amount thereof or payable thereon,
the amount or amounts paid or distributed thereon and all other facts pertinent
thereto or to this Article X.
Section 10.07 Rights of the Trustee; Holders of Senior Indebtedness.
The Trustee in its individual capacity shall be entitled to all the
rights set forth in this Article X in respect of any Senior Indebtedness at any
time held by it, to the same
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Page 43
extent as any other holder of Senior Indebtedness, and nothing in this Indenture
shall deprive the Trustee of any of its rights as such holder.
With respect to the holders of Senior Indebtedness, the Trustee
undertakes to perform or to observe only such of its covenants and obligations
as are specifically set forth in this Article X, and no implied covenants or
obligations with respect to the holders of Senior Indebtedness shall be read
into this Indenture against the Trustee. The Trustee shall not be deemed to owe
any fiduciary duty to the holders of Senior Indebtedness and, subject to the
provisions of Article VII of this Indenture, the Trustee shall not be liable to
any holder of Senior Indebtedness if it shall pay over or deliver to
Securityholders, the Company or any other Person money or assets to which any
holder of Senior Indebtedness shall be entitled by virtue of this Article X or
otherwise.
Nothing in this Article X shall apply to claims of, or payments to, the
Trustee under or pursuant to Section 7.07.
Section 10.08 Subordination May Not Be Impaired.
No right of any present or future holder of any Senior Indebtedness to
enforce subordination as herein provided shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of the Company
or by any act or failure to act, in good faith, by any such holder, or by any
noncompliance by the Company with the terms, provisions and covenants of this
Indenture, regardless of any knowledge thereof that any such holder may have or
otherwise be charged with.
Without in any way limiting the generality of the foregoing paragraph,
the holders of Senior Indebtedness may, at any time and from time to time,
without the consent of or notice to the Trustee or the Securityholders, without
incurring responsibility to the Securityholders and without impairing or
releasing the subordination provided in this Article X or the obligations
hereunder of the holders of the Securities to the holders of Senior
Indebtedness, do any one or more of the following: (i) change the manner, place
or terms of payment or extend the time of payment of, or renew or alter, such
Senior Indebtedness, or otherwise amend or supplement in any manner such Senior
Indebtedness or any instrument evidencing the same or any agreement under which
such Senior Indebtedness is outstanding; (ii) sell, exchange, release or
otherwise deal with any property pledged, mortgaged or otherwise securing such
Senior Indebtedness; (iii) release any Person liable in any manner for the
collection of such Senior Indebtedness; and (iv) exercise or refrain from
exercising any rights against the Company and any other Person.
ARTICLE XI
MISCELLANEOUS
<PAGE> 44
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Section 11.01 Trust Indenture Act Controls.
If any provision of this Indenture limits, qualifies, or conflicts with
another provision which is required to be included in this Indenture by the TIA
or the TIA as amended after the date hereof, the required provision shall
control.
Section 11.02 Notices.
Any notice or communication shall be sufficiently given if in writing
and delivered in person or mailed by registered or certified mail, postage
prepaid, return receipt requested or delivered by telecopier or overnight air
courier guaranteeing next day delivery to the other's address set forth below:
If to the Company:
Cellular Communications of Puerto Rico, Inc.
110 East 59th Street
New York, New York 10022
Attention: Secretary
Telecopier No: (212) 906-8497
with a copy to:
Skadden, Arps, Slate, Meagher & Flom LLP
919 Third Avenue
Attention: Thomas H. Kennedy, Esq
Telecopier No: (212) 735-2000
if to the Trustee:
The Chase Manhattan Bank
450 West 33rd Street
New York, New York 10001
Attention: Global Trust Services
Telecopier No: (212) 946-8159
The Company or the Trustee by notice to the other may designate
additional or different addresses for subsequent notices or communications.
Any notice or communication mailed to a Securityholder shall be mailed
by first-class mail, postage prepaid, to such Holder at such Holder's address as
it appears on the register maintained by the Registrar and shall be sufficiently
given to such Holder if so mailed within the time prescribed.
<PAGE> 45
Page 45
Failure to mail a notice or communication to a Securityholder or any
defect in it shall not affect its sufficiency with respect to other
Securityholders. If a notice or communication is mailed in the manner provided
above, it is duly given, whether or not the addressee receives it.
Section 11.03 Communication by Holders with Other Holders.
Securityholders may communicate pursuant to TIA Section 312(b) with
other Securityholders with respect to their rights under this Indenture or the
Securities. The Company, the Trustee, the Registrar and anyone else shall have
the protection of TIA Section 312(c).
Section 11.04 Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company to the Trustee to take
any action under this Indenture, the Company shall furnish to the Trustee at the
request of the Trustee:
(i) an Officers' Certificate stating that, in the opinion
of the signers, all conditions precedent, if any,
provided for in this Indenture relating to the
proposed action have been complied with; and
(ii) an Opinion of Counsel stating that, in the opinion of
such counsel, all such conditions precedent have been
complied with.
Section 11.05 Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a condition
or covenant provided for in this Indenture shall include:
(i) a statement that the person making such certificate
or opinion has read such covenant or condition;
(ii) 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;
(iii) a statement that, in the opinion of such person, such
person has made such examination or investigation as
is necessary to enable such person to express an
informed opinion as to whether or not such covenant
or condition has been complied with; and
(iv) a statement as to whether or not in the opinion of
such person, such condition or covenant has been
complied with; provided,
<PAGE> 46
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however, that with respect to matters of fact an
opinion of counsel may rely on an Officer's
Certificate.
Section 11.06 When Treasury Securities Disregarded.
In determining whether the Holders of the required principal amount of
Securities have concurred in any direction, waiver or consent, Securities owned
by the Company or by an Affiliate shall be disregarded, except that for the
purposes of determining whether the Trustee shall be protected in relying on any
such direction, waiver or consent, only Securities which the Trustee knows are
so owned shall be so disregarded.
Section 11.07 Rules by Trustee, Paying Agent, Registrar.
The Trustee may make reasonable rules for action by or a meeting of
Securityholders. The Paying Agent or Registrar each may make reasonable rules
for its functions.
Section 11.08 Legal Holidays.
A "Legal Holiday" is a Saturday, a Sunday, a legal holiday or a day on
which banking institutions in New York, New York are not required to be open. If
a payment date is a Legal Holiday at a place of payment, payment may be made at
that place on the next succeeding day that is not a Legal Holiday, and no
interest shall accrue for the intervening period. If any other operative date
for purposes of this Indenture shall occur on a Legal Holiday then for all
purposes the next succeeding day that is not a Legal Holiday shall be such
operative date.
Section 11.09 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 giving effect to
principles of conflict of laws.
Section 11.10 No Adverse Interpretation of Other Agreement.
This Indenture may not be used to interpret another indenture, loan or
debt agreement of the Company or a Subsidiary. Any such indenture, loan or debt
agreement may not be used to interpret this Indenture.
Section 11.11 No Recourse Against Others.
A director, officer, employee or stockholder, as such, of the Company
shall not have any liability for any obligations of the Company under the
Securities or the
<PAGE> 47
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Indenture or for any claim based on, in respect of or by reason of such
obligations or their creation. Each Holder by accepting a Security waives and
releases all such liability. The waiver and release are part of the
consideration for the issue of the Securities.
Section 11.12 Successors.
All agreements of the Company in this Indenture and the Securities
shall bind its successor. All agreements of the Trustee in this Indenture shall
bind its successor.
Section 11.13 Duplicate Originals.
The parties may sign any number of copies of this Indenture. Each
signed copy shall be an original, but all of them together represent the same
agreement.
Section 11.14 Severability.
If any provision of this Indenture or in the Notes shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
Section 11.15 Table of Contents, Headings, Etc.
The Table of Contents and headings of the Articles of this Indenture
have been inserted for convenience of reference only, are not to be considered a
part hereof, and shall in no way modify or restrict any of the terms or
provisions hereof.
<PAGE> 48
Page 48
IN WITNESS WHEREOF, the Company and the Trustee have caused their names
to be signed hereto by their respective officers thereunto duly authorized, all
as of the day and year first above written.
CELLULAR COMMUNICATIONS OF PUERTO RICO, INC.
By:
Richard J. Lubasch
Senior Vice President-General Counsel
THE CHASE MANHATTAN BANK, as Trustee
By:
<PAGE> 49
Page 49
EXHIBIT A
FORM OF SECURITY
15% SUBORDINATED NOTE DUE 2008
NO. _________ CUSIP NO.
$__________
CELLULAR COMMUNICATIONS OF PUERTO RICO, INC., a Delaware
corporation, for value received
promises to pay to _________________
or registered assigns the principal sum of __________ Dollars
on ____________.
Interest Payment Dates: May 15 and November 15
Record Date: May 1 and November 1
IN WITNESS WHEREOF, the Company has caused this Security to be signed
manually or by facsimile by a duly authorized officer.
Trustee's Certificate of Authentication
This is one of the 15% Subordinated Notes due 2008 described in the
within-mentioned Indenture.
Dated:
THE CHASE MANHATTAN BANK, CELLULAR COMMUNICATIONS
OF PUERTO RICO, INC.
as Trustee
By:___________________________ By:_____________________________
Authorized Officer Name:
Title:
<PAGE> 50
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(Back of Security)
1. Interest.
Cellular Communications of Puerto Rico, Inc., a Delaware corporation
(the "Company"), promises to pay interest on the principal amount of this
Security at the rate per annum shown above. The Company will pay interest
semi-annually on May 15 and November 15 of each year ("Interest Payment Date"),
commencing May 15, 1999. For interest payments due beginning on May 15, 2000,
the Company may, at its option, make interest payments through the issuance of
additional Securities ("Secondary Securities") in an aggregate principal amount
equal to the amount of the interest that would be payable. The Company shall pay
cash in lieu of issuing any Secondary Security to the extent the principal
amount of such Secondary Security is not an integral multiple of $1.00. Interest
on the Securities will accrue from the most recent date to which interest has
been paid, or duly provided for, unless the date hereof is a date to which
interest has been paid, or duly provided for, in which case from the date of the
Security, or, if no interest has been paid, or duly provided for, from November
15, 1998 (or, in the case of a Secondary Security, from the Interest Payment
Date in respect of which such Secondary Security was issued). Notwithstanding
the foregoing, when there is no existing default in the payment of interest on
the Securities, if the date hereof is after a Record Date, as that term is
defined below, and before the next succeeding Interest Payment Date, this
Security shall bear interest from such Interest Payment Date; provided, however,
that if the Company shall default in the payment of interest due on such
Interest Payment Date, then this Security shall bear interest from the next
preceding Interest Payment Date to which interest has been paid or duly provided
for or, if no interest has been paid or duly provided for on the Securities,
from November 15, 1998 (or, in the case of a Secondary Security, from the
Interest Payment Date in respect of which such Secondary Security was issued).
Interest will be computed on the basis of a 360-day year of twelve 30-day
months. If the Company elects to make an interest payment on an Interest Payment
Date through the issuance of Secondary Securities as provided above, it must
provide the Trustee and the Holders with irrevocable notice of such election at
least ten (10) and not more than thirty (30) Business Days prior to the
immediately preceding Interest Payment Date. Notwithstanding the foregoing,
Secondary Securities may be used to make the interest payments due May 15, 1999
or November 15, 1999.
2. Method of Payment.
The Company will pay interest on the Securities (except defaulted
interest) to the persons who are registered holders of Securities at the close
of business on the first day of the month in which the Interest Payment Date
occurs ("Record Date"). Holders must surrender Securities to a Paying Agent to
collect principal payments. The Company will pay principal and interest in money
of the United States that at the time of payment is legal tender for payment of
public and private debts (other than payment of
<PAGE> 51
Page 51
interest through the issuance of Secondary Securities). However, the Company may
pay principal and any interest by its check payable in such money (other than
payment of interest through the issuance of Secondary Securities). It may mail
an interest check to a holder's registered address.
3. Paying Agent and Registrar.
Initially, the Trustee, will act as Paying Agent and Registrar. The
Company may change any Paying Agent, Registrar or co-registrar without notice.
The Company or any of its Affiliates may act as Paying Agent, Registrar or
co-registrar.
4. Indenture.
The Company issued the 15% Subordinated Notes due 2008 (the
"Securities") under an Indenture dated as of October 15, 1998 ("Indenture")
between the Company and The Chase Manhattan Bank (the "Trustee"). The terms of
the Securities include those stated in the Indenture and those made part of the
Indenture by reference to the Trust Indenture Act of 1939 as in effect on the
date of the Indenture. The Securities are subject to all such terms and
Securityholders are referred to the Indenture and such Act for a statement of
them. Terms used herein which are defined in the Indenture shall have the
respective meanings assigned to them in the Indenture.
5. Optional Redemption.
The Securities may be redeemed at the election of the Company, as a
whole or from time to time in part, at any time on or after November 15, 1999,
at a Redemption Price equal to 102% of the principal amount thereof, together
with accrued interest to the Redemption Date; provided, however, that if the
Redemption Date is subsequent to a Record Date with respect to any Interest
Payment Date specified above and on or prior to such Interest Payment Date, then
such accrued interest will be paid to the person in whose name this Security is
Registered at the close of business on such Record Date.
6. Notice of Redemption.
Notice of redemption will be mailed at least 30 days but not more than
60 days before the Redemption Date to each holder of Securities to be redeemed
at his registered address. Securities in denominations larger than $1.00 may be
redeemed in part in integral multiples of $1.00. On or after the Redemption Date
interest ceases to accrue on Securities or portions of them called for
redemption.
7. Denominations, Transfer, Exchange.
The Securities are in registered form without coupons in denominations
of $1.00
<PAGE> 52
Page 52
and integral multiples thereof. A holder may transfer or exchange Securities in
accordance with the Indenture. The Registrar may require a holder, among other
things, to furnish appropriate endorsements and transfer documents and to pay
any taxes and fees required by law or permitted by the Indenture. The Registrar
need not transfer or exchange any Securities selected for redemption. Also, it
need not transfer or exchange any Securities for a period of 15 days before a
selection of Securities to be redeemed.
8. Persons Deemed Owners.
Subject to paragraph 2 hereof, the registered holder of a Security may
be treated as the owner of it for all purposes.
9. Unclaimed Money.
If money for the payment of principal or interest remains unclaimed for
two years, the Trustee or Paying Agent will pay the money back to the Company at
its request. After that, holders entitled to the money must look to the Company
for payment unless an abandoned property law designates another person.
10. Discharge Prior to Redemption or Maturity.
If the Company at any time deposits with the Trustee U.S. Legal Tender
or U.S. Government Obligations sufficient to pay the principal of and interest
on the Securities to redemption or maturity and complies with the other
provisions of the Indenture relating thereto, the Company will be discharged
from certain provisions of the Indenture and the Securities.
11. Amendment, Supplement, Waiver.
Subject to certain exceptions requiring the consent of the holders of
each of the affected Securities, the Indenture or the Securities may be amended
or supplemented with the consent of the holders of at least a majority in
principal amount of the Securities then outstanding, and any past default or
compliance with any provision may be waived with the consent of the holders of a
majority in principal amount of the Securities then outstanding. Without the
consent of any Securityholder, the Company may amend or supplement the Indenture
or the Securities to cure any ambiguity, defect or inconsistency or to provide
for uncertificated Securities in addition to or in place of certificated
Securities or to make any change that does not materially adversely affect the
rights of any Securityholder.
12. Restrictive Covenants.
The Securities are general unsecured obligations of the Company limited
to an
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Page 53
aggregate principal amount equal to the Maximum Aggregate Principal Amount
(as defined in the Indenture). The Indenture does not limit unsecured debt other
than the aggregate principal amount of indebtedness to be issued pursuant to the
Indenture.
<PAGE> 54
Page 54
13. Successor Corporation.
When a successor corporation assumes all the obligations of its
predecessor under the Securities and the Indenture, the predecessor corporation
will be released from these obligations.
14. Defaults and Remedies.
An Event of Default is: default for 30 days in payment of interest on
any of the Securities; default in payment of principal of any of the Securities
due and payable at maturity or upon redemption or otherwise; failure by the
Company for 45 days after notice to it to comply with any of its other
agreements in the Indenture or in the Securities; or the happening of an event
of default under other Indebtedness of the Company entitling the holders thereof
to declare at least $25,000,000 aggregate principal amount thereof due and
payable, unless cured or waived or discharged or such acceleration shall have
been rescinded within 30 days after notice to the Company by the Trustee or the
holders of at least 25% in aggregate principal amount of the Securities then
outstanding or unless the Company by appropriate proceedings is in good faith
contesting such happening; and certain events of bankruptcy or insolvency. If an
Event of Default occurs and is continuing, the Trustee or the holders of at
least 25% in principal amount of the Securities then outstanding may declare all
the Securities to be due and payable immediately in accordance with Section 6.02
of the Indenture. Securityholders may not enforce the Indenture or the
Securities except as provided in the Indenture. The Trustee may require
indemnity satisfactory to it before it enforces the Indenture or the Securities.
Subject to certain limitations, holders of a majority in principal amount of the
Securities then outstanding may direct the Trustee in its exercise of any trust
or power. The Trustee may withhold from Securityholders notice of any continuing
default (except a default in payment of principal or interest) if it determines
that withholding notice is in their interests.
15. Trustee Dealings with Company.
The Chase Manhattan Bank, the Trustee under the Indenture, in its
individual or any other capacity, may make loans to, accept deposits from, and
perform services for the Company or its affiliates, and may otherwise deal with
the Company or its affiliates, as if it were not Trustee.
16. No Recourse Against Others.
A director, officer, employee or stockholder, as such, of the Company
shall not have any liability for any obligations of the Company under the
Securities or the Indenture or for any claim based on, in respect of or by
reason of, such obligations or their creation. Each holder of Securities by
accepting a Security waives and releases all
<PAGE> 55
Page 55
such liability. The waiver and release are part of the consideration for the
issue of the Securities.
17. Authentication.
This Security shall not be valid until the Trustee signs the
certificate of authentication on the other side of this Security.
18. Abbreviations.
Customary abbreviations may be used in the name of a holder of
Securities of an assignee, such as: TEN COM (= tenants in common), TEN ENT (=
tenants by the entireties), JT TEN (= joint tenants with right of survivorship
and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts
to Minors Act).
<PAGE> 56
Page 56
I or we assign and transfer this Security to
----------------------------------
Insert social security or other identifying number of assignee.
- --------------------------------------------------------------------------
- --------------------------------------------------------------------------
- --------------------------------------------------------------------------
(Print or type name, address and zip code of assignee)
and irrevocably appoint
---------------------
Agent
to transfer this Security on the books of the Company. The agent may substitute
another to act for him.
Dated:
--------------------
Signed:
--------------------
- -------------------------
(Sign exactly as name appears
on the other side of this Security)
