As filed with the Securities and Exchange Commission on July 19, 1999
Registration No. 333-80469
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
AMENDMENT NO. 2 TO
FORM S-3
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
TELIGENT, INC.
(Exact name of registrant as specified in its charter)
Delaware 54-18665620
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
8065 LEESBURG PIKE
SUITE 400
VIENNA, VIRGINIA 22182
703.762.5100
(Name, address, including zip code, and telephone
number, including area code, of registrant's
principal executive offices)
---------------------
LAURENCE E. HARRIS, ESQ.
TELIGENT, INC.
SUITE 400
8065 LEESBURG PIKE
VIENNA, VIRGINIA 22182
703.762.5100
(Name, address, including zip code,
and telephone number, including area
code, of agent for service)
--------------------
WITH COPIES OF NOTICES TO:
PHILIP J. BOECKMAN, ESQ.
CRAVATH, SWAINE & MOORE
WORLDWIDE PLAZA
825 EIGHTH AVENUE
NEW YORK, NEW YORK 10019
212.474.1000
---------------------
Approximate date of commencement of proposed sale to the public:
From time to time after the effective date of this Registration Statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the
following box. | |
If any of the securities being registered on this Form are being
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection
with dividend or interest reinvestment plans, check the following box. |X|
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act, please check the
following box and list the Securities Act registration statement number of
the earlier effective registration statement for the same offering. | |
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. | |
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. |X|
<PAGE>
---------------------------
The Registrant hereby amends this Registration Statement on such date
or dates as may be necessary to delay its effective date until the
Registrant shall file a further amendment which specifically states that
this Registration Statement shall thereafter become effective in accordance
with Section 8(a) of the Securities Act of 1933 or until this Registration
Statement shall become effective on such date as the Commission, acting
pursuant to said Section 8(a), may determine.
<PAGE>
SUBJECT TO COMPLETION, DATED JULY 19, 1999
PROSPECTUS
[GRAPHIC OMITTED]
$1,000,000,000
TELIGENT, INC.
CLASS A COMMON STOCK, PREFERRED STOCK,
DEBT SECURITIES, AND DEPOSITARY SHARES
We will offer and sell from time to time Teligent Class A common
stock, preferred stock, debt securities, or depositary shares. We will
provide specific terms of these securities in supplements to this
prospectus. The terms of the securities will include the initial offering
price, aggregate amount of the offering, listing on any securities exchange
or quotation system, risk factors and the agents, dealers or underwriters,
if any, to be used in connection with the sale of these securities. You
should read this prospectus and any supplement carefully before you invest.
In addition, up to 2,000,000 shares of our Class A common stock
covered by this prospectus may be offered by a selling stockholder.
Our Class A common stock is traded on the Nasdaq National Market
System under the symbol "TGNT."
------------------------------
Neither the Securities and Exchange Commission nor any state
securities commission has approved or disapproved of these securities, or
determined if this prospectus is truthful or complete. Any representation
to the contrary is a criminal offense.
The information in this prospectus is not complete and may be changed. We
may not sell these securities until the registration statement filed with
the Securities and Exchange Commission is effective. This prospectus is not
an offer to sell these securities and it is not soliciting an offer to buy
these securities in any state where the offer or sale is not permitted.
The date of this prospectus is July , 1999
<PAGE>
YOU SHOULD RELY ONLY ON THE INFORMATION CONTAINED IN OR
INCORPORATED BY REFERENCE IN THIS PROSPECTUS AND IN ANY PROSPECTUS
SUPPLEMENT. WE HAVE NOT AUTHORIZED ANYONE TO PROVIDE YOU WITH DIFFERENT
INFORMATION. WE ARE NOT MAKING AN OFFER OF THESE SECURITIES IN ANY STATE
WHERE THE OFFER IS NOT PERMITTED. YOU SHOULD NOT ASSUME THAT THE
INFORMATION CONTAINED IN OR INCORPORATED BY REFERENCE IN THIS PROSPECTUS IS
ACCURATE AS OF ANY DATE OTHER THAN THE DATE ON THE FRONT OF THIS
PROSPECTUS.
<PAGE>
TABLE OF CONTENTS
Page
ABOUT THIS PROSPECTUS................................................... 4
WHERE YOU CAN FIND MORE INFORMATION ABOUT TELIGENT...................... 4
NOTE ON FORWARD-LOOKING STATEMENTS...................................... 5
TELIGENT, INC........................................................... 6
RATIO OF EARNINGS TO FIXED CHARGES AND PREFERENCE DIVIDENDS............. 7
USE OF PROCEEDS......................................................... 8
DESCRIPTION OF CAPITAL STOCK............................................ 8
DESCRIPTION OF DEBT SECURITIES.......................................... 14
DESCRIPTION OF DEPOSITARY SHARES........................................ 25
MANAGEMENT............................................................... 26
SELLING STOCKHOLDER...................................................... 31
PLAN OF DISTRIBUTION.................................................... 32
LEGAL MATTERS........................................................... 33
EXPERTS................................................................. 34
<PAGE>
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed with
the Securities and Exchange Commission using a "shelf" registration
process. Under the shelf process, we may sell any combination of the
securities described in this prospectus in one or more offerings up to a
total dollar amount of $1,000,000,000. Under the shelf process, the selling
stockholder may, from time to time, sell up to 2,000,000 shares of Class A
common stock in one or more offerings. This prospectus provides you with a
general description of the securities we may offer. Each time we sell
securities, we will provide a prospectus supplement that will contain
specific information about the terms of that offering. The prospectus
supplement may also add, update or change information contained in this
prospectus. You should read both this prospectus and any prospectus
supplement, together with additional information described under the
heading "WHERE YOU CAN FIND MORE INFORMATION ABOUT TELIGENT."
As used in this prospectus, "Teligent," "we," "us," and "our" refer to
Teligent, Inc., a Delaware corporation, and its subsidiaries.
WHERE YOU CAN FIND MORE INFORMATION ABOUT TELIGENT
We are subject to the informational requirements of the Securities
Exchange Act of 1934, which requires us to file annual, quarterly and
special reports, proxy statements and other information with the SEC. You
may read and copy any document that we file at the Public Reference Room of
the SEC at 450 Fifth Street, N.W., Washington, D.C. 20549. Information on
the operation of the Public Reference Room may be obtained by calling the
SEC at 1-800-SEC-0330. You may also inspect our filings at the regional
offices of the SEC located at Citicorp, 500 West Madison Street, Suite
1400, Chicago, Illinois 60661 and 7 World Trade Center, New York, New York
10048 or over the Internet at the SEC's home page at http://www.sec.gov.
This prospectus constitutes part of a Registration Statement on Form
S-3 filed with the SEC under the Securities Act of 1933. It omits some of
the information contained in the Registration Statement, and reference is
made to the Registration Statement for further information with respect to
us and the securities we are offering. Any statement contained in this
prospectus concerning the provisions of any document filed as an exhibit to
the Registration Statement or otherwise filed with the SEC is not
necessarily complete, and in each instance reference is made to the copy of
the document filed.
The SEC allows us to "incorporate by reference" the information we
file with them, which means that we can disclose important information to
you by referring you to those documents. The information incorporated by
reference is considered to be part of this prospectus, and later
information that we file with the SEC will automatically update and
supersede this information and the information in the prospectus. We
incorporate by reference the documents listed below and any future filings
made with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the
Securities Exchange Act of 1934 until we sell all the securities covered by
this prospectus:
1. Our Annual Report on Form 10-K for the year ended December 31,
1998;
2. Our Quarterly Report on Form 10-Q for the fiscal quarter ended
March 31, 1999;
3. Our Current Report on Form 8-K dated April 19, 1999; and
<PAGE>
4. The description of our Class A common stock in our Form 8-A
filed on November 18, 1997.
You may request a copy of these filings at no cost, by writing or
telephoning the office of Investor Relations, Teligent, Inc., 8065 Leesburg
Pike, Suite 400, Vienna, Virginia 22182, telephone: 703.762.5264.
NOTE ON FORWARD-LOOKING STATEMENTS
This prospectus includes forward-looking statements. Forward-looking
statements can be identified by the use of such forward-looking terminology
terms such as "believes," "expects," "may," "intends," "will," "should" or
"anticipates" or the negative thereof or other variations thereon or
similar terminology, or by discussions of strategy. We have based these
forward-looking statements on our current expectations and projections
about future events. These forward-looking statements are subject to risks,
uncertainties, and assumptions about us, including:
o our pace of entry into new markets;
o the time and expense required for building our planned network,
and our ability to secure building access;
o our ability to acquire customers in our market areas;
o our ability to raise additional capital when needed on a timely
basis and on acceptable terms;
o our ability to integrate and maintain internal management,
technical information and accounting systems;
o the impact of changes in telecommunication laws and regulations;
o our success in gaining regulatory approval for our products and
services, when required;
o our ability to successfully interconnect with the incumbent
carriers;
o the timely supply of necessary fully functional equipment;
o the intensity of competition;
o the consummation of the acquisition of The Associated Group, Inc.
by Liberty Media Corporation;
o our ability to hire and retain personnel;
o our timely completion of our year 2000 compliance program; and
o general economic conditions.
We undertake no obligation to publicly update or revise any
forward-looking statements,
<PAGE>
whether as a result of new information, future events or otherwise. In
light of these risks, uncertainties and assumptions, the forward-looking
events discussed in this prospectus or in any supplement to this prospectus
might not occur.
TELIGENT, INC.
General
Teligent is a full-service, facilities-based communications company.
We offer small and medium-sized business customers local, long distance,
high-speed data and dedicated Internet services over our digital
SmartWave(TM) local networks. We hold 24 GHz wireless licenses granted by
the Federal Communications Commission covering 74 market areas, comprising
more than 750 municipalities in the United States and 130 million people.
Our SmartWave(TM) local networks integrate point-to-multipoint and
point-to-point wireless technologies with traditional broadband wireline
technology. We have launched our commercial service in 28 markets,
comprising more than 464 cities and towns with a combined population of
more than 83 million.
Teligent serves its wireless customers by placing a small digital
microwave antenna on the roof of the customer's building. When the customer
picks up the telephone, accesses the Internet or activates a
videoconference, the signal travels over the building's inside wiring to
Teligent's equipment and the rooftop antenna. The antenna sends voice, data
and video signals to a nearby Teligent base station, where the signals are
communicated to a Teligent broadband switching center and then onto their
final destination.
Our principal executive offices are located at 8065 Leesburg Pike,
Suite 400, Vienna, Virginia 22182. Our main phone number is 703.762.5100.
For additional information about Teligent, you should consult the
information sources listed above under the heading "WHERE YOU CAN FIND MORE
INFORMATION ABOUT TELIGENT."
Recent Developments
On June 1, 1999, Liberty Media Corporation and The Associated Group,
Inc. announced that they had signed a definitive merger agreement pursuant
to which Liberty Media will acquire Associated in a stock-for-stock merger
(the "Associated Acquisition"). Liberty Media Corporation, which holds most
of the assets included in the Liberty Media Group, is an indirect wholly
owned subsidiary of AT&T Corp.; however, the assets and businesses of
Liberty Media Group are operated by its current management, which is
different from that of AT&T. Liberty Media holds interests in a broad range
of video programming, communications, technology and Internet businesses in
the United States, Europe, South America and Asia. Under the merger
agreement, Associated shareholders will receive an aggregate of 51,778,920
shares of AT&T Corp.'s Class A Liberty Media Group common stock (which
tracks the performance of Liberty Media), subject to adjustment, and
19,719,274 shares of AT&T Corp. common stock.
Upon completion of the Associated Acquisition, Liberty Media would
acquire through its ownership of Associated, Associated's interest in
Teligent, representing approximately 41% (as of June 1, 1999) of the total
issued and outstanding shares of Teligent common stock as of June 1, 1999.
Upon consummation of the Associated Acquisition, Telcom DTS Investors,
L.L.C. ("Telcom"), the owner of all of the Series B-2 common stock, would,
depending upon Telcom's level of stock ownership, and control of Telcom by
certain individuals at that time, have the right
<PAGE>
pursuant to an agreement with Associated to require Associated to convert
all of its Series B-1 common stock into Class A common stock and to cause
one of the Series B-1 Directors designated by Associated to resign from
Teligent's board of directors so that the Series B-1 Directors will no
longer constitute a majority of the Teligent directors. Associated has
further agreed with Telcom that if Associated is required to convert its
Series B-1 common stock, then it will cause its designees on Teligent's
board of directors to cause Teligent's board of directors to convene a
meeting of Teligent's stockholders.
The Associated Acquisition merger agreement provides that, immediately
prior to the effective date of the Associated Acquisition, Associated will
replace three (or such lesser number that Liberty may designate) of the
existing Series B-1 Directors with designees of Liberty Media. However,
upon a conversion of all of the Series B-1 common stock into Class A common
stock, there will be no shares of Series B-1 common stock outstanding. As a
result, if all of the Series B-1 shares are so converted, neither
Associated nor Liberty will have the special right currently held by
Associated under Teligent's certificate of incorporation to elect directors
of Teligent (except for the right to vote generally for Teligent directors
together with other holders of Teligent common stock). See "Description of
Capital Stock."
Pursuant to the terms of the Associated Acquisition, Associated has
agreed with certain limited exceptions, not to sell any of its Teligent
common stock or to vote or execute a written consent or proxy with respect
to its Teligent common stock in favor of any acquisition of a 25% or
greater equity interest in Teligent. The Associated Acquisition merger
agreement does not prohibit the Series B-1 Directors from properly
discharging their fiduciary duties in their capacity as directors of
Teligent.
The Associated Acquisition is subject to the approval of the
stockholders of Associated, clearance from various governmental
authorities, including the Federal Communications Commission, and
satisfaction of the other conditions set forth in the merger agreement.
According to Associated, depending upon the timing of the foregoing, the
Associated Acquisition is currently expected to close in early 2000.
RATIO OF EARNINGS TO FIXED CHARGES AND PREFERENCE DIVIDENDS
The ratio of earnings to fixed charges is computed by dividing pretax
income from operations before fixed charges (other than capitalized
interest) by fixed charges. Fixed charges consist of interest charges and
amortization of debt expense and discount or premium related to
indebtedness, whether expensed or capitalized, and that portion of rental
expense we believe to be representative of interest. For the period from
March 5, 1996 (inception) to December 31, 1996, the years ended December
31, 1997 and 1998, and the three months ended March 31, 1998 and 1999,
earnings were insufficient to cover fixed charges by $13.6 million, $138.1
million, $281.5 million, $38.6 million and $108.1 million, respectively.
The ratio of combined fixed charges and preference dividends to
earnings is computed by adding combined fixed charges to preference
dividends and dividing that total by pretax income from operations before
fixed charges (other than capitalized interest). Combined fixed charges
consist of interest charges and amortization of debt expense and discount
or premium related to indebtedness, whether expensed or capitalized, and
that portion of rental expense we believe to be representative of interest.
For the period from March 5, 1996 (inception) to December 31, 1996, the
years ended December 31, 1997 and 1998, and the three months ended March
31, 1998 and
<PAGE>
1999, earnings were insufficient to cover combined fixed charges and
preference dividends by $13.6 million, $138.1 million, $281.5 million,
$38.6 million and $108.1 million, respectively.
USE OF PROCEEDS
Unless otherwise indicated in the applicable prospectus supplement,
the net proceeds from the sale of shares of Class A common stock, preferred
stock, debt securities, or depositary shares will be used to fund working
capital, capital expenditures, operating losses and other general corporate
purposes, including acquisitions. We will not receive any of the proceeds
from the sale of Class A common stock that may be offered by the selling
stockholder.
DESCRIPTION OF CAPITAL STOCK
The following description of our capital stock is based upon our
certificate of incorporation, our by-laws and applicable provisions of law.
The following description is qualified in its entirety by reference to such
certificate of incorporation and by-laws, which have been filed as exhibits
to earlier registration statements filed by us with the SEC. See "WHERE YOU
CAN FIND INFORMATION ABOUT TELIGENT" for information sources at which you
can locate copies of our certificate of incorporation and by-laws.
Certain provisions of our certificate of incorporation and by-laws
summarized in the following paragraphs may be deemed to have an
anti-takeover effect and may delay, defer or prevent a tender offer or
takeover attempt that a stockholder might consider in its best interests,
including those attempts that might result in a premium over the market
price for shares held.
Authorized and Outstanding Capital Stock
Our authorized capital stock consists of 265,000,000 shares of common
stock and 10,000,000 shares of preferred stock. Of the 265,000,000
authorized shares of our common stock, 200,000,000 shares are designated as
Class A common stock and 65,000,000 shares are designated as Class B common
stock. Of the 65,000,000 authorized shares of Class B common stock,
30,000,000 shares are designated as Class B, Series 1 (the "Series B-1
common stock"), 25,000,000 shares are designated as Class B, Series 2 (the
"Series B-2 common stock") and 10,000,000 shares are designated as Class B,
Series 3 (the "Series B-3 common stock"). As of April 23, 1999, there were
8,314,795 shares of Class A common stock issued and outstanding, 21,436,689
shares of Series B-1 common stock issued and outstanding, held by one
stockholder of record, 17,206,210 shares of Series B-2 common stock issued
and outstanding, held by one stockholder of record, and 5,783,400 shares of
Series B-3 common stock issued and outstanding, held by one stockholder of
record.
Our Class A common stock is admitted for trading on the Nasdaq
National Market and trades under the symbol "TGNT." The Transfer Agent and
Registrar for our Class A common stock is First Union National Bank.
<PAGE>
Common Stock
Voting Rights. In general, the rights of Class A common stock and
Class B common stock shareholders are substantially identical, except that
until the number of shares held by holders of the respective series of
Class B common stock fall below certain thresholds, such holders will have
the right to elect directors to our board of directors as follows: a
majority of the directors will be elected by the holders of the Series B-1
common stock; one director will be elected by the holders of the Series B-2
common stock; and one director will be elected by the holders of the Series
B-3 common stock.
The holders of Class A common stock and Class B common stock, voting
together as a single class, are entitled to elect all members of our board
of directors, other than any Series B-1 Directors, Series B-2 Director or
Series B-3 Director (the "Common Directors"). There are currently seven
directors.
Pursuant to our certificate of incorporation, the holders of Series
B-1 common stock, voting as a separate class, are entitled to elect that
number of directors equal to the minimum number necessary to constitute a
majority of members of our board of directors (the "Series B-1 Directors").
However, if at any time the number of issued and outstanding shares of
Series B-1 common stock is less than 20% of the aggregate number of issued
and outstanding shares of common stock then, without any further action by
us or any other party, all of such issued and outstanding shares of Series
B-1 common stock will automatically be converted into an equal number of
shares of Class A common stock and the holders of the converted Series B-1
common stock will no longer be entitled to elect Series B-1 Directors.
The holders of Series B-2 common stock, voting as a separate class,
are entitled to elect one member of our board of directors (the "Series B-2
Director"). However, if at any time the number of issued and outstanding
shares of Series B-2 common stock is less than 10% of the aggregate number
of issued and outstanding shares of common stock then, without any further
action by us or any other party, all of such issued and outstanding shares
of Series B-2 common stock will automatically be converted into an equal
number of shares of Class A common stock and the holders of the converted
Series B-2 common stock will no longer be entitled to elect the Series B-2
Director.
The holders of Series B-3 common stock, voting as a separate class,
are entitled to elect one member of our board of directors (the "Series B-3
Director"). However, if at any time (A) the number of issued and
outstanding shares of Series B-3 common stock is less than (1) 3% of the
aggregate number of issued and outstanding shares of common stock or (2)
1,156,680 shares of Series B-3 common stock or (B) Nippon Telegraph and
Telephone Corporation or any person or entity controlled by it chooses at
any time to engage in, or make a material investment in any person or
entity whose principal business is, the provision in the United States of
any terrestrial fixed wireless local telecommunications services offered by
Teligent in the same market segments (i.e., business or residential), then,
without any further action by us or any party, all of such issued and
outstanding shares of Series B-3 common stock will automatically be
converted into an equal number of shares of Class A common stock and the
holders of the converted Series B-3 common stock will no longer be entitled
to elect the Series B-3 Director. In the event of any stock split, reverse
stock split, stock dividend or similar transaction with respect to the
Series B-3 common stock, the number referred to in clause (2) of this
paragraph is required to be appropriately adjusted.
Except as otherwise required by law or, as described herein, by the
certificate of incorporation, the holders of shares of common stock vote
together as a single class on all matters presented to a
<PAGE>
vote of stockholders. Each registered holder of common stock is entitled to one
vote per share. There is no cumulative voting.
Removal of Directors. Any Series B-1 Director, Series B-2 Director or
Series B-3 Director may be removed with or without cause, but only by the
affirmative vote of the holders of a majority of the shares of the series
of Class B common stock entitled to elect such director, voting as a
separate class. Any Common Director may be removed with or without cause,
but only by the affirmative vote of the holders of a majority of the shares
of Class A common stock and Class B common stock voting together as a
single class.
Vacancy. Any vacancy in the office of a director may be filled by a
vote of holders of, in the case of any Series B-1 Director, Series B-2
Director or Series B-3 Director, the series of Class B common stock
entitled to elect such director voting as a separate class and, in the case
of any Common Director, the Class A common stock and Class B common stock
voting together as a single class. Any vacancy in the office of a Common
Director may, in the absence of a stockholder vote, be filled by the
remaining directors or, if there remains only one director, by such sole
remaining director; provided, further, however, that any vacancy in the
office of a Series B-1 Director may, in the absence of a stockholder vote,
be filled by the remaining Series B-1 Directors or, if there remains only
one Series B-1 Director, by such sole remaining Series B-1 Director.
Transfers of Certain Common Stock. Under our certificate of
incorporation, no holder of shares of Class B common stock may transfer,
and we may not register, or permit the transfer agent for such common stock
to register, the transfer of any shares of Class B common stock or any
interest therein, whether by sale, assignment, gift, bequest, pledge,
hypothecation, encumbrance, or any other disposition, except to a Permitted
Transferee (as defined below) of such holder. If a holder of shares of
Class B common stock transfers any such shares to any person or entity
other than a Permitted Transferee of such holder, such transfer, without
any further action by us or of any party, will automatically convert such
shares into an equal number of shares of Class A common stock from the date
of such transfer. The certificate of incorporation defines "Permitted
Transferee" to mean only: (1) in the case of any holder of shares of Series
B-1 common stock, The Associated Group, Inc. and any corporation,
partnership or other business entity directly or indirectly controlled by
The Associated Group, Inc. at the time of transfer; (2) in the case of any
holder of shares of Series B-2 common stock, Dr. Rajendra Singh, Neera
Singh and any corporation, partnership or other business entity directly or
indirectly controlled by Dr. Rajendra Singh, Neera Singh or their
respective executors (to the extent acting in such capacity) or direct
descendants; provided, however, that if any holder of Series B-2 common
stock ceases to be so controlled, then any shares of Series B-2 common
stock held by such holder will be deemed to have been transferred to a
person or entity other than a Permitted Transferee; and (3) in the case of
any holder of shares of Series B-3 common stock, Nippon Telegraph and
Telephone Corporation and any corporation, partnership or other business
entity directly or indirectly controlled by Nippon Telegraph and Telephone
Corporation at the time of transfer.
Any holder of shares of Class B common stock, or any Permitted
Transferee of such holder, may grant a security interest in, or pledge,
pursuant to a bona fide financing arrangement involving the holder or
Permitted Transferee, all or any portion of the holder's or Permitted
Transferee's shares of Class B common stock, if (1) the grant or pledge
does not require registration or qualification pursuant to any federal or
state securities laws and (2) we receive copies of any instruments
evidencing the grant or pledge and the secured party's or pledgee's written
acknowledgment that it has reviewed the terms of the certificate of
incorporation. No such grant or pledge will by itself cause the conversion
of any such shares of Class B common stock into shares of Class A common
<PAGE>
stock. If any secured party or pledgee (which is not a Permitted Transferee
of the holder making such grant or pledge) forecloses upon any such shares
of Class B common stock, such foreclosure, without any further action by us
or any other party, will automatically and irrevocably convert such shares
into an equal number of shares of Class A common stock from the date of
such foreclosure.
Conversion into Series A Common Stock. Under the certificate of
incorporation, each share of Class B common stock is convertible at any
time, at the option of the registered holder, into one fully paid and
nonassessable share of Class A common stock, subject to adjustment for any
stock split.
Liquidation. In the event of any voluntary or involuntary liquidation,
dissolution or winding up of Teligent, after distribution in full of any
amounts to be distributed to holders of shares of preferred stock, unless
otherwise required by law, holders of shares of common stock are entitled
to receive all the remaining assets. Distribution of such remaining assets
to the holders of common stock will be in proportion to the number of
shares of common stock held by them. Under the certificate of
incorporation, the holders of common stock will participate in such assets
as if all classes and series of common stock constituted a single class of
stock.
Dividends. The holders of shares of our common stock will be entitled
to receive, when, as and if declared by the board of directors, out of our
assets which are by law available therefor, dividends payable either in
cash, in property or in shares of capital stock. The payment of such
dividends are subject to the preferential rights of holders of preferred
stock, if any. Under the certificate of incorporation, no dividend will be
declared or paid in respect of any class of common stock unless the holders
of all classes of common stock receive the same per share dividend, payable
in the same amount and type of consideration, as if such classes
constituted a single class. However, if any dividend is declared that is
payable in shares of common stock, or in other rights to acquire shares of
common stock, then (1) such dividend will be declared and paid at the same
rate per share with respect to each class of common stock, (2) the dividend
payable on shares of Class A common stock will be payable only in shares
of, or in other rights to acquire shares of, Class A common stock and (3)
the dividend payable on shares of each series of Class B common stock will
be payable only in shares of, or in other rights to acquire shares of, the
same series of Class B common stock.
Preferred Stock
Under the certificate of incorporation, the board of directors has the
authority to create one or more series of preferred stock, to issue shares
of preferred stock in such series up to the maximum number of shares of
preferred stock authorized, and to determine the preferences, rights,
privileges and restrictions of any series, including the dividend rights,
voting rights, rights and terms of redemption, liquidation preferences, the
number of shares constituting any such series and the designation of such
series. The authorized shares of preferred stock, as well as authorized but
unissued shares of common stock, are available for issuance without further
action by our stockholder, except to the extent stockholder action is
required by applicable law or by the rules of a stock exchange or quotation
system on which any series of our stock may then be listed or quoted, or as
required by our certificate of incorporation or by-laws.
The applicable prospectus supplement will describe the terms of any
preferred stock being offered, including:
o the number of shares and designation or title of the shares;
<PAGE>
o any liquidation preference per share;
o any date of maturity;
o any redemption, repayment or sinking fund provisions;
o any dividend rate or rates and the dates of payment (or the
method for determining the dividend rates or dates of payment);
o any voting rights;
o if other than the currency of the United States, the currency
or currencies including composite currencies in which the
preferred stock is denominated and/or in which payments will
or may be payable;
o the method by which amounts in respect of the preferred stock
may be calculated and any commodities, currencies or indices,
or value, rate or price, relevant to such calculation;
o whether the preferred stock is convertible or exchangeable
and, if so, the securities or rights into which the preferred
stock is convertible or exchangeable, and the terms and
conditions of conversion or exchange;
o the place or places where dividends and other payments on the
preferred stock will be payable;
o any conditions or restrictions on the creation of indebtedness by
us or upon the issuance of any additional stock; and
o any additional voting, dividend, liquidation, redemption and
other rights, preferences, privileges, limitations and
restrictions.
All shares of preferred stock offered will, when issued, be fully paid
and non-assessable. Any shares of preferred stock that are issued would
have priority over the common stock with respect to dividend or liquidation
rights or both.
The transfer agent for each series of preferred stock will be
described in the applicable prospectus supplement.
Restriction on Foreign Ownership
Under our certificate of incorporation, the board of directors has all
the powers necessary to ensure our compliance with the foreign ownership
restrictions under the Communications Act of 1934, and the rules,
regulations and decisions of the Federal Communications Commission. The
board of directors' power includes the power to prohibit the transfer of
any shares of our capital stock to any Foreign Owner and to take or cause
to be taken such action as it deems appropriate to implement such
prohibition. "Foreign Owner" means (a) any person who is a citizen of a
country other than the United States; (b) any corporation or other legal
entity organized under the laws of any government other than the government
of the United States or of any state, territory or possession of the United
States; (c) any government other than the government of the United States
<PAGE>
or of any state, territory or possession of the United States; and (d) any
representative of any of the foregoing or any entity owned, or whose
capital was contributed in whole or in part, by any of the foregoing.
Under the certificate of incorporation, any shares of our capital
stock determined by the board of directors to be beneficially owned by any
Foreign Owner, or with respect to which any Foreign Owner has voting
rights, will be subject to redemption by action of the board of directors
to the extent necessary to comply with foreign ownership restrictions. In
such event, the redemption price of the shares to be redeemed will be equal
to the fair market value of such shares, as determined by the board of
directors in good faith. Under the certificate of incorporation, the
redemption price of such shares may be paid in cash, securities or any
combination thereof. Such redemption will be upon such other terms and
conditions as the board of directors shall determine.
We have entered into a stockholders agreement with holders of the
Class B common stock. The stockholders agreement provides for certain
rights and obligations with respect to our ownership and governance. The
stockholders agreement also provides for certain rights and obligations of
the parties thereto relating to our compliance with the foreign ownership
restrictions under the Communications Act of 1934 and the rules,
regulations and decisions of the Federal Communications Commission.
Under the stockholders agreement, if we are required by a change in
law or other circumstance to reduce the level of foreign ownership of
Teligent and we are unable to obtain a waiver of such requirement, we will
have the right, and will be required, at the holder of the Series B-3
common stock's election, to refuse to sell our stock to any Foreign Owner
if such a transaction would adversely impact the holder of the Series B-3
common stock's ability to hold its then existing share ownership in
Teligent. In addition, we will have the right, and will be required, at the
election of any party to the stockholders agreement, to repurchase for
cash, to the extent permitted by applicable Delaware corporation law,
shares first from all other Foreign Owners other than the parties to the
stockholders agreement, if applicable, and thereafter from each party to
the stockholders agreement, on a pro rata basis in accordance with the
stockholders agreement.
Anti-takeover Effects of Provisions of Our Certificate of Incorporation and
By-laws and the Delaware General Corporation Law
Our certificate of incorporation provides disproportionate voting
rights of the Class B common stock to elect a majority of the members of
our board of directors relative to the Class A common stock and the
authorization of our board of directors to issue, without stockholder
approval, one or more series of preferred stock having such preferences,
powers and relative, participating, optional and other rights as the board
of directors may determine. The certificate of incorporation further
provides that stockholders are not entitled to call a special meeting of
stockholders, nor to require the board of directors to call such a meeting.
The certificate of incorporation also provides that stockholders are not
entitled to act by written consent in lieu of a meeting; except that in
connection with the election or removal of any Series B-1 Director, Series
B-2 Director or Series B-3 Director, the holders of the series of Class B
common stock entitled to elect or remove such director may vote as a
separate class by written consent in lieu of a meeting. In addition, the
by-laws contain certain advance notice requirements that must be complied
with by any stockholder who wishes to nominate any person for election to
our board of directors or who otherwise wishes to properly bring business
before an annual meeting of our stockholders. These provisions of the
certificate of incorporation, together with the ability of The Associated
Group, Inc. to elect a majority of Teligent's board of directors, could
discourage potential acquisition proposals and could delay or prevent a
change of
<PAGE>
control of Teligent.
Delaware Takeover Statute. We are subject to Section 203 ("Section
203") of the Delaware General Corporation Law, which, subject to certain
exceptions, prohibits a Delaware corporation from engaging in any business
combination with any interested stockholder for a period of three years
following the date that such stockholder became an interested stockholder,
unless: (1) prior to such date, the board of directors of the corporation
approved either the business combination or the transaction that resulted
in the stockholder becoming an interested stockholder; (2) upon
consummation of the transaction that resulted in the stockholder becoming
an interested stockholder, the interested stockholder owned at least 85% of
the voting stock of the corporation outstanding at the time the transaction
commenced, excluding for purposes of determining the number of shares
outstanding those shares owned (a) by persons who are directors and also
officers and (b) by employee stock plans in which employee participants do
not have the right to determine confidentially whether shares held subject
to the plan will be tendered in a tender or exchange offer; or (3) on or
subsequent to such date, the business combination is approved by the board
of directors and authorized at an annual or special meeting of
stockholders, and not by written consent, by the affirmative vote of at
least 66 2/3% of the outstanding voting stock that is not owned by the
interested stockholder.
Section 203 defines "business combination" to include: (1) any merger
or consolidation involving the corporation and the interested stockholder;
(2) any sale, transfer, pledge or other disposition of 10% or more of the
assets of the corporation involving the interested stockholder; (3) subject
to certain exceptions, any transaction that results in the issuance or
transfer by the corporation of any stock of the corporation to the
interested stockholder; (4) any transaction involving the corporation that
has the effect of increasing the proportionate share of the stock of any
class or series of the corporation beneficially owned by the interested
stockholder; or (5) the receipt by the interested stockholder of the
benefit of any loans, advances, guarantees, pledges or other financial
benefits provided by or through the corporation. In general, Section 203
defines an interested stockholder as any entity or person beneficially
owning 15% or more of the outstanding voting stock of the corporation and
any entity or person affiliated with or controlling or controlled by such
entity or person. The restrictions on business combinations contained in
Section 203 would not apply to any business combination between the current
holders of the Series B-1 common stock or the current holders of the Series
B-2 common stock, on the one hand, and us, on the other hand.
DESCRIPTION OF DEBT SECURITIES
This section describes the general terms and provisions of the debt
securities which may be offered by us from time to time. The prospectus
supplement will describe the specific terms of the debt securities offered
by that prospectus supplement.
We may issue debt securities either separately or together with, or
upon the conversion of, or in exchange for, other securities. The debt
securities are to be either senior obligations of ours issued in one or
more series and referred to herein as the "Senior Debt Securities,"
subordinated obligations of ours issued in one or more series and referred
to herein as the "Subordinated Debt Securities," or junior subordinated
obligations of Teligent issued in one or more series and referred to herein
as the "Junior Subordinated Debt Securities." The Senior Debt Securities,
the Subordinated Debt Securities and the Junior Subordinated Debt
Securities are collectively referred to as the "Debt Securities." Each
series of Debt Securities will be issued pursuant to a written agreement,
known as an "Indenture," to be entered into by us and an independent third
party, known as a "Trustee",
<PAGE>
who will be legally obligated to carry out the terms of the Indenture. The
name(s) of the Trustee(s) will be set forth in the applicable prospectus
supplement. We may issue all the Debt Securities under the same Indenture,
as one or separate series, as specified in the applicable prospectus
supplements.
We have summarized certain terms and provisions of the Indentures. The
summary is not complete. If we refer to particular provisions of an
Indenture, the provisions, including definitions of certain terms, are
incorporated by reference as a part of this summary. The Indentures are
filed as an exhibit to the registration statement of which this prospectus
is a part, and are incorporated by reference. The Indentures are subject to
and governed by the Trust Indenture Act of 1939, as amended. You should
refer to the applicable Indenture for the provisions which may be important
to you.
General
The Indentures will not limit the amount of Debt Securities which we
may issue. We may issue Debt Securities up to an aggregate principal amount
as we may authorize from time to time. The applicable prospectus supplement
will describe the terms of any Debt Securities being offered, including:
o the designation, aggregate principal amount and authorized
denominations;
o the maturity date;
o the interest rate, if any, and the method for calculating the
interest rate;
o the interest payment dates and the record dates for the interest
payments;
o any mandatory or optional redemption terms or prepayment,
conversion, sinking fund or exchangeability or convertibility
provisions;
o the places where the principal and interest will be payable;
o if other than denominations of $1,000 or multiples of $1,000,
the denominations the Debt Securities will be issued in;
o whether the Debt Securities will be issued in the form of Global
Securities (as defined below) or certificates;
o additional provisions, if any, relating to the defeasance and
covenant defeasance of the Debt Securities;
o whether the Debt Securities will be issuable in registered form
("Registered Securities") or bearer form ("Bearer Securities")
or both and, if Bearer Securities are issuable, any restrictions
applicable to the exchange of one form for another and the
offer, sale and delivery of Bearer Securities;
o whether such Debt Securities will be Senior Debt Securities,
Subordinated Debt Securities or Junior Subordinated Debt
Securities and, if Subordinated Debt Securities or Junior
Subordinated Debt Securities, the subordination provisions
and the applicable
<PAGE>
definition of "Senior Indebtedness";
o any applicable material federal tax consequences;
o the dates on which premium, if any, will be payable;
o our right, if any, to defer payment of interest and the maximum
length of such deferral period;
o any listing on a securities exchange;
o if convertible into Class A common stock or preferred stock,
the terms on which such Debt Securities are convertible;
o the terms, if any, of any guarantee of the payment of
principal of, and premium, if any, and interest on Debt
Securities of the series and any corresponding changes to the
provisions of the Indenture as currently in effect;
o the terms, if any, of the transfer, mortgage, pledge, or
assignment as security for the Debt Securities of the series
of any properties, assets, moneys, proceeds, securities or
other collateral, including whether certain provisions of the
Trust Indenture Act are applicable, and any corresponding
changes to provisions of the Indenture as currently in
effect;
o the initial public offering price; and
o other specific terms, including covenants and any additions
or changes to the events of default provided for with respect
to the Debt Securities.
If the purchase price of any Debt Securities is payable in a currency
other than U.S. dollars or if principal of, or premium, if any, or
interest, if any, on any of the Debt Securities is payable in any currency
other than U.S. dollars, the specific terms and other information with
respect to such Debt Securities and such foreign currency will be specified
in the applicable prospectus supplement relating thereto.
Debt Securities may be issued as Original Issue Discount Securities
(as defined in the Indentures) to be sold at a substantial discount below
their principal amount. Original Issue Discount Securities may include
"zero coupon" securities that do not pay any cash interest for the entire
term of the securities. In the event of an acceleration of the maturity of
any Original Issue Discount Security, the amount payable to the holder
thereof upon such acceleration will be determined in the manner described
in the applicable prospectus supplement. Conditions pursuant to which
payment of the principal of the Subordinated Debt Securities may be
accelerated will be set forth in the applicable prospectus supplement.
Material federal income tax and other considerations applicable to Original
Issue Discount Securities will be described in the applicable prospectus
supplement.
Under the Indentures, the terms of the Debt Securities of any series
may differ and we, without the consent of the holders of the Debt
Securities of any series, may reopen a previous series of Debt Securities
and issue additional Debt Securities of such series or establish additional
terms of such series, unless otherwise indicated in the applicable
prospectus supplement.
<PAGE>
Covenants
Under the Indentures, we will be required to:
o pay the principal, interest and any premium on the Debt
Securities when due;
o maintain a place of payment;
o deliver a report to the Trustee at the end of each fiscal year
reviewing our obligations under the Indentures; and
o deposit sufficient funds with any paying agent on or before
the due date for any principal, interest or any premium.
Any additional covenants will be described in the applicable
prospectus supplement.
Registration, Transfer, Payment and Paying Agent
Unless otherwise indicated in a prospectus supplement, each series of
Debt Securities will be issued in registered form only, without coupons.
The Indentures, however, provide that we may also issue Debt Securities in
bearer form only, or in both registered and bearer form. Bearer Securities
shall not be offered, sold, resold or delivered in connection with their
original issuance in the United States or to any United States person other
than offices located outside the United States of certain United States
financial institutions. "United States person" means any citizen or
resident of the United States, any corporation, partnership or other entity
created or organized in or under the laws of the United States, any estate
the income of which is subject to United States federal income taxation
regardless of its source, or any trust whose administration is subject to
the primary supervision of a United States court and which has one or more
United States fiduciaries who have the authority to control all substantial
decisions of the trust. "United States" means the United States of America
(including the states thereof and the District of Columbia), its
territories, its possessions and other areas subject to its jurisdiction.
Purchasers of Bearer Securities will be subject to certification procedures
and may be affected by certain limitations under United States tax laws.
Such procedures and limitations will be described in the prospectus
supplement relating to the offering of the Bearer Securities.
Unless otherwise indicated in a prospectus supplement, Registered
Securities will be issued in denominations of $1,000 or any integral
multiple thereof, and Bearer Securities will be issued in denominations of
$5,000.
Unless otherwise indicated in a prospectus supplement, the principal,
premium, if any, and interest, if any, of or on the Debt Securities will be
payable, and Debt Securities may be surrendered for registration of
transfer or exchange, at an office or agency to be maintained by us in the
Borough of Manhattan, The City of New York, provided that payments of
interest with respect to any Registered Security may be made at our option
by check mailed to the address of the person entitled to payment or by
transfer to an account maintained by the payee with a bank located in the
United States. No service charge shall be made for any registration of
transfer or exchange of Debt Securities, but we may require payment of a
sum sufficient to cover any tax or other governmental charge and any other
expenses that may be imposed in connection with the exchange or transfer.
Unless otherwise indicated in a prospectus supplement, payment of
principal of, premium, if
<PAGE>
any, and interest, if any, on Bearer Securities will be made, subject to
any applicable laws and regulations, at such office or agency outside the
United States as specified in the prospectus supplement and as we may
designate from time to time. Unless otherwise indicated in a prospectus
supplement, payment of interest due on Bearer Securities on any interest
payment date will be made only against surrender of the coupon relating to
such interest payment date. Unless otherwise indicated in a prospectus
supplement, no payment of principal, premium or interest with respect to
any Bearer Security will be made at any office or agency in the United
States or by check mailed to any address in the United States or by
transfer to an account maintained with a bank located in the United States;
except that if amounts owing with respect to any Bearer Securities shall be
payable in U.S. dollars, payment may be made at the Corporate Trust Office
of the applicable Trustee or at any office or agency designated by us in
the Borough of Manhattan, The City of New York, if (but only if) payment of
the full amount of such principal, premium or interest at all offices
outside of the United States maintained for such purpose by us is illegal
or effectively precluded by exchange controls or similar restrictions.
Unless otherwise indicated in the applicable prospectus supplement, we
will not be required to:
o issue, register the transfer of or exchange Debt Securities
of any series during a period beginning at the opening of
business 15 days before any selection of Debt Securities of
that series of like tenor to be redeemed and ending at the
close of business on the day of that selection;
o register the transfer of or exchange any Registered Security,
or portion thereof, called for redemption, except the
unredeemed portion of any Registered Security being redeemed
in part;
o exchange any Bearer Security called for redemption, except to
exchange such Bearer Security for a Registered Security of
that series and like tenor that is simultaneously surrendered
for redemption; or
o issue, register the transfer of or exchange any Debt Security
which has been surrendered for repayment at the option of the
holder, except the portion, if any, of the Debt Security not
to be so repaid.
Ranking of Debt Securities
The Senior Debt Securities will be unsubordinated obligations of ours
and will rank equally in right of payment with all other unsubordinated
indebtedness of ours. The Subordinated Debt Securities and Junior
Subordinated Debt Securities will be obligations of ours and will be
subordinated in right of payment to all existing and future Senior
Indebtedness. The prospectus supplement will describe the subordination
provisions and set forth the definition of "Senior Indebtedness" applicable
to the Subordinated Debt Securities or Junior Subordinated Debt Securities,
as the case may be, and will set forth the approximate amount of such
Senior Indebtedness outstanding as of a recent date.
Global Securities
The Debt Securities of a series may be issued in whole or in part in
the form of one or more global securities that will be deposited with, or
on behalf of, a "Depositary" identified in the prospectus supplement
relating to such series. Global Debt Securities may be issued in either
<PAGE>
registered or bearer form and in either temporary or permanent form. Unless
and until it is exchanged in whole or in part for individual certificates
evidencing Debt Securities, a global Debt Security may not be transferred
except as a whole (1) by the Depositary to a nominee of such Depositary,
(2) by a nominee of such Depositary to such Depositary or another nominee
of such Depositary or (3) by such Depositary or any such nominee to a
successor of such Depositary or a nominee of such successor.
The specific terms of the depositary arrangement with respect to a
series of global Debt Securities and certain limitations and restrictions
relating to a series of global Bearer Securities will be described in the
prospectus supplement.
Outstanding Debt Securities
In determining whether the holders of the requisite principal amount
of outstanding Debt Securities have given any request, demand,
authorization, direction, notice, consent or waiver under the relevant
Indenture, the amount of outstanding Debt Securities will be calculated
based on the following:
o the portion of the principal amount of an Original Issue
Discount Security that shall be deemed to be outstanding for
such purposes shall be that portion of the principal amount
thereof that could be declared to be due and payable upon a
declaration of acceleration thereof pursuant to the terms of
such Original Issue Discount Security as of the date of such
determination,
o the principal amount of a Debt Security denominated in a currency
other than U.S. dollars shall be the U.S. dollar equivalent,
determined on the date of original issue of such Debt Security,
of the principal amount of such Debt Security; and
o any Debt Security owned by us or any obligor on such Debt
Security or any affiliate of us or such other obligor shall
be deemed not to be outstanding.
Redemption and Repurchase
The Debt Securities may be redeemable at our option, may be subject to
mandatory redemption pursuant to a sinking fund or otherwise, or may be
subject to repurchase by Teligent at the option of the holders, in each
case upon the terms, at the times and at the prices set forth in the
applicable prospectus supplement.
Conversion and Exchange
The terms, if any, on which Debt Securities of any series are
convertible into or exchangeable for Class A common stock, preferred stock,
or other Debt Securities will be set forth in the applicable prospectus
supplement. Such terms may include provisions for conversion or exchange,
either mandatory, at the option of the holders or at our option.
Absence of Limitation on Indebtedness and Liens; Absence of Event
Risk Protection
The applicable prospectus supplement will specify any prohibitions on
the amount of indebtedness, guarantees or other liabilities that may be
incurred by us and any prohibitions on our ability to create or assume
liens on our property. Unless otherwise provided in a prospectus
<PAGE>
supplement, the Indentures will not require the maintenance of any
financial ratios by, or specified levels of net worth, revenues, income,
cash flow or liquidity of, Teligent, and will not contain provisions which
would give holders of the Debt Securities the right to require us to
repurchase their Debt Securities in the event of a takeover,
recapitalization or similar restructuring or change in control of Teligent.
Consolidation, Merger and Sale of Assets
Each Indenture generally permits a consolidation or merger (subject to
certain limitations and conditions) between us and another corporation.
They also permit the sale by us of all or substantially all of our property
and assets. If this happens, the remaining or acquiring corporation shall
assume all of our responsibilities and liabilities under the Indentures
including the payment of all amounts due on the Debt Securities and
performance of the covenants in the Indentures.
We are only permitted to consolidate or merge with or into any other
U. S. corporation or sell all or substantially all of our assets according
to the terms and conditions of the Indentures, unless otherwise indicated
in the applicable prospectus supplement. The remaining or acquiring
corporation will be substituted for us in the Indentures with the same
effect as if it had been an original party to the Indenture. Thereafter,
the successor corporation may exercise our rights and powers under any
Indenture, in our name or in its own name. Any act or proceeding required
or permitted to be done by our board of directors or any of our officers
may be done by the board or officers of the successor corporation.
Events of Default
Unless otherwise specified in the applicable prospectus supplement, an
Event of Default, as defined in the Indentures and applicable to Debt
Securities issued under such Indentures, will occur with respect to the
Debt Securities of any series under the Indenture upon:
o default for a period to be specified in the applicable
prospectus supplement in payment of any interest with respect
to any Debt Security of such series;
o default in payment of principal or any premium with respect
to any Debt Security of such series when due upon maturity,
redemption, repurchase at the option of the holder or
otherwise;
o default in deposit of any sinking fund payment when due with
respect to any Debt Security of such series;
o default by us in the performance, or breach, of any other
covenant or warranty in such Indenture (other than a covenant
or warranty included therein solely for the benefit of a
series of Debt Securities other than that series) which shall
not have been remedied for a period to be specified in the
applicable prospectus supplement after notice to us by the
applicable Trustee or the holders of not less than a fixed
percentage in aggregate principal amount of the Debt
Securities of all series issued under the applicable
Indenture;
o certain events of bankruptcy, insolvency or reorganization of
us; or
o any other Event of Default that may be set forth in the
applicable prospectus supplement,
<PAGE>
including, but not limited to, an Event of Default based on
other debt being accelerated ("cross-acceleration").
No Event of Default with respect to any particular series of Debt
Securities necessarily constitutes an Event of Default with respect to any
other series of Debt Securities. Each Indenture provides that the Trustee
thereunder may withhold notice to the holders of the Debt Securities of any
series outstanding under such Indenture of the occurrence of a default with
respect to the Debt Securities of such series (except a default in payment
of principal, premium, if any, interest, if any, or sinking fund payments,
if any) if the Trustee considers it in the interest of the holders to do
so.
Each Indenture provides that if an Event of Default with respect to
any series of Debt Securities issued thereunder shall have occurred and be
continuing, either the relevant Trustee or the holders of at least a fixed
percentage in principal amount of the Debt Securities of such series then
outstanding may declare the principal amount (or if any Debt Securities of
such series are Original Issue Discount Securities, such lesser amount as
may be specified in the applicable prospectus supplement) of all the Debt
Securities of such series to be due and payable immediately, but upon
certain conditions such declaration and its consequences may be rescinded
and annulled by the holders of a majority in principal amount of the Debt
Securities of all series issued under the applicable Indenture.
The applicable prospectus supplement will provide the terms pursuant
to which an Event of Default shall result in acceleration of the payment of
principal of Subordinated Debt Securities or Junior Subordinated Debt
Securities.
In the case of a default in the payment of principal of, or premium,
if any, or interest, if any, on any Subordinated Debt Securities or Junior
Subordinated Debt Securities of any series, the applicable Trustee, subject
to certain limitations and conditions, may institute a judicial proceeding
for the collection thereof.
No holder of any of the Debt Securities issued of any series under
either Indenture has any right to institute any proceeding with respect to
the Indenture or any remedy thereunder, unless the holders of at least a
fixed percentage in principal amount of the outstanding Debt Securities of
such series have made written request, and offered reasonable indemnity, to
the Trustee to institute such proceeding as Trustee, the Trustee has failed
to institute such proceeding within 60 days after receipt of such notice
and the Trustee has not within such 60-day period received directions
inconsistent with such written request by holders of a majority in
principal amount of the outstanding Debt Securities of such series. Such
limitations do not apply, however, to a suit instituted by a holder of a
Debt Security for the enforcement of the payment of the principal of,
premium, if any, or any accrued and unpaid interest on, the Debt Security
on or after the respective due dates expressed in the Debt Security.
During the existence of an Event of Default under either Indenture,
the Trustee is required to exercise such rights and powers vested in it
under the Indenture and use the same degree of care and skill in its
exercise thereof as a prudent person would exercise under the circumstances
in the conduct of such person's own affairs. Subject to the provisions of
the Indenture relating to the duties of the Trustee, if an Event of Default
shall occur and be continuing, the Trustee is not under any obligation to
exercise any of its rights or powers under the Indenture at the request or
direction of any of the holders unless such holders shall have offered to
the Trustee reasonable security or indemnity. Subject to certain provisions
concerning the rights of the Trustee, the holders of a majority in
principal amount of the outstanding Debt Securities of any series have the
right to direct
<PAGE>
the time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust, or power conferred on
the Trustee with respect to such series.
The Indentures provide that the Trustee will, within 45 days after the
occurrence of any Default, give to the holders of the Debt Securities of
such series notice of such Default known to it, unless such Default shall
have been cured or waived; provided that, except in the case of a Default
in payment of principal of or premium, if any, on any Debt Security of such
series when due or in the case of any Default in the payment of any
interest on the Debt Securities of such series, the Trustee shall be
protected in withholding such notice if it determines in good faith that
the withholding of such notice is in the interest of such holders.
Teligent is required to furnish to the Trustee annually a statement as
to compliance with all conditions and covenants under the Indentures.
Modification and Waivers
From time to time, Teligent, when authorized by resolutions of our
board of directors, and the Trustee, without the consent of the holders of
Debt Securities of any series, may amend, waive or supplement the
Indentures and the Debt Securities of such series for certain specified
purposes, including, among other things:
o to cure ambiguities, defects or inconsistencies;
o to provide for the assumption of our obligations to holders of
the Debt Securities of such series in the case of a merger
or consolidation;
o to add to our Events of Default or our covenants or to make
any change that would provide any additional rights or
benefits to the holders of the Debt Securities of such
series;
o to add or change any provisions of such Indenture to facilitate
the issuance of Bearer Securities;
o to establish the form or terms of Debt Securities of any series
and any related coupons;
o to add guarantors with respect to the Debt Securities of such
series;
o to secure the Debt Securities of such series;
o to maintain the qualification of the Indenture under the Trust
Indenture Act; or
o to make any change that does not adversely affect the rights of
any holder.
Other amendments and modifications of the Indentures or the Debt
Securities issued thereunder may be made by Teligent and the Trustee with
the consent of the holders of not less than a majority of the aggregate
principal amount of the outstanding Debt Securities of each series affected
thereby (each series voting as a separate class); provided that no such
modification or amendment may, without the consent of the holder of each
outstanding Debt Security affected thereby:
o reduce the principal amount of, or extend the fixed maturity of
the Debt Securities, or
<PAGE>
alter or waive any redemption, repurchase or sinking fund
provisions of the Debt Securities;
o reduce the amount of principal of any Original Issue Discount
Securities that would be due and payable upon an acceleration
of the maturity thereof, or
o change the currency in which any Debt Securities or any premium
or the accrued interest thereon is payable;
o reduce the percentage in principal amount outstanding of Debt
Securities of any series which must consent to an amendment,
supplement or waiver or consent to take any action under the
Indenture or the Debt Securities of such series;
o impair the right to institute suit for the enforcement of any
payment on or with respect to the Debt Securities;
o waive a default in payment with respect to the Debt Securities or
any guarantee;
o Reduce the rate or extend the time for payment of interest on the
Debt Securities;
o adversely affect the ranking of the Debt Securities of any series;
o release any guarantor from any of its obligations under its
guarantee or the Indenture, except in compliance with the terms
of the Indenture; or
o solely in the case of a series of Subordinated Debt
Securities or Junior Subordinated Debt Securities, modify any
of the applicable subordination provisions or the applicable
definition of Senior Indebtedness in a manner adverse to any
holders.
The holders of a majority in aggregate principal amount of the
outstanding Debt Securities of any series may waive compliance by us with
certain restrictive provisions of the relevant Indenture, including and
such other restrictive covenants, if any, as may be set forth in the
applicable prospectus supplement. The holders of a majority in aggregate
principal amount of the outstanding Debt Securities of any series may, on
behalf of all holders of Debt Securities of that series, waive any past
default under the applicable Indenture with respect to Debt Securities of
that series and its consequences, except a default in the payment of the
principal of, or premium, if any, or interest, if any, on any Debt
Securities of such series or in respect of a covenant or provision which
cannot be modified or amended without the consent of a larger fixed
percentage or by the holder of each outstanding Debt Securities of the
series affected.
<PAGE>
Discharge, Defeasance and Covenant Defeasance
When we establish a series of Debt Securities, we may provide that
series is subject to the defeasance and discharge provisions of the
applicable Indenture. If those provisions are made applicable, we may elect
either:
o to defease and be discharged from, subject to some limitations, all of our
obligations with respect to those Debt Securities; or
o to be released from our obligations to comply with specified covenants
relating to those Debt Securities as described in the applicable
prospectus supplement.
To effect that defeasance or covenant defeasance, we must irrevocably
deposit in trust with the relevant Trustee an amount in any combination of
funds or government obligations, which, through the payment of principal
and interest in accordance with their terms, will provide money sufficient
to make payments on those Debt Securities and any mandatory sinking fund or
analogous payments on those Debt Securities.
On such a defeasance, we will not be released from certain of our
obligations that will be specified in the applicable prospectus supplement.
To establish such a trust we must, among other things, deliver to the
relevant Trustee an opinion of counsel to the effect that the holders of
those Debt Securities:
o will not recognize income, gain or loss for U.S. federal income tax
purposes as a result of the defeasance or covenant defeasance; and
o will be subject to U.S. federal income tax on the same amounts, in the
same manner and at the same times as would have been the case if the
defeasance or covenant defeasance had not occurred. In the case of
defeasance, the opinion of counsel must be based upon a ruling of the
IRS or a change in applicable U.S. federal income tax law occurring
after the date of the applicable Indenture.
If we effect covenant defeasance with respect to any Debt Securities,
the amount of deposit with the relevant Trustee will be sufficient to pay
amounts due on the Debt Securities at the time of their stated maturity.
However, those Debt Securities may become due and payable prior to their
stated maturity if there is an Event of Default with respect to a covenant
from which we have not been released. In that event, the amount on deposit
may not be sufficient to pay all amount due on the Debt Securities at the
time of the acceleration.
The applicable prospectus supplement may further describe the
provisions, if any, permitting defeasance or covenant defeasance, including
any modifications to the provisions described above.
Governing Law
The Indentures and the Debt Securities will be governed by, and
construed in accordance with, the laws of the State of New York.
<PAGE>
Regarding the Trustees
The Trust Indenture Act contains limitations on the rights of a
trustee, should it become a creditor of ours, to obtain payment of claims
in certain cases or to realize on certain property received by it in
respect of any such claims, as security or otherwise. Each Trustee is
permitted to engage in other transactions with us and our subsidiaries from
time to time, provided that if such Trustee acquires any conflicting
interest it must eliminate such conflict upon the occurrence of an Event of
Default under the relevant Indenture, or else resign.
DESCRIPTION OF DEPOSITARY SHARES
This section describes the general terms and provisions of Preferred
Stock represented by depositary shares (the "Depositary Shares"). The
specific terms of the Depositary Shares will be delivered in the applicable
prospectus supplement.
We have summarized certain terms and provisions of the Deposit
Agreements (as defined below), the Depositary Shares and the receipts
representing Depositary Shares ("Depositary Receipts"). The following
summaries do not purport to be complete and are subject to, and are
qualified in their entirety by reference to, all the provisions of the
Deposit Agreements, the Depositary Shares and the Depositary Receipts, each
of which will be filed as an exhibit to or incorporated by reference in the
Registration Statement of which this prospectus forms a part.
We may issue Depositary Receipts evidencing the Depositary Shares.
Each Depositary Share will represent a fraction of a share of Preferred
Stock. Shares of Preferred Stock of each class or series represented by
Depositary Shares will be deposited under a separate Deposit Agreement (the
"Deposit Agreement") among us, the depositary (the "Preferred Stock
Depositary") and the holders of the Depositary Receipts. Subject to the
terms of the Deposit Agreement, each owner of a Depositary Receipt will be
entitled, in proportion to the fraction of a share of Preferred Stock
represented by the Depositary Shares evidenced by the Depositary Receipt,
to all the rights and preferences of the Preferred Stock represented by
such Depositary Shares. Those rights include any dividend, voting,
conversion, redemption and liquidation rights. Immediately following the
issuance and delivery of the Preferred Stock to the Preferred Stock
Depositary, we will cause the Preferred Stock Depositary to issue the
Depositary Receipts on our behalf.
If Depositary Shares are offered, the applicable prospectus supplement
will describe the terms of such Depositary Shares, the Deposit Agreement
and, if applicable, the Depositary Receipts, including the following, where
applicable:
o the payment of dividends or other cash distributions to the
holders of Depositary Receipts when such dividends or other
cash distributions are made with respect to the Preferred
Stock;
o the voting by a holder of Depositary Shares of the Preferred
Stock underlying such Depositary Shares at any meeting called
for such purpose;
o if applicable, the redemption of Depositary Shares upon a
redemption by us of shares of Preferred Stock held by the
Preferred Stock Depositary;
o if applicable, the exchange of Depositary Shares upon an
exchange by us of shares of
<PAGE>
Preferred Stock held by the Preferred Stock Depositary for Debt
Securities or common stock;
o if applicable, the conversion of the shares of Preferred
Stock underlying the Depositary Shares into shares of our
common stock, other shares of our Preferred Stock or our Debt
Securities;
o the terms upon which the Deposit Agreement may be amended and
terminated;
o a summary of the fees to be paid by us to the Preferred Stock
Depositary;
o the terms upon which a Preferred Stock Depositary may resign or
be removed by us; and
o any other terms of the Depositary Shares, the Deposit Agreement
and the Depositary Receipts.
If a holder of Depositary Receipts surrenders the Depositary Receipts
at the corporate trust office of the Preferred Stock Depositary (unless the
related Depositary Shares have previously been called for redemption,
converted or exchanged into other securities of Teligent), the holder will
be entitled to receive at this office the number of shares of Preferred
Stock and any money or other property represented by such Depositary
Shares. Holders of Depositary Receipts will be entitled to receive whole
and, to the extent provided by the applicable prospectus supplement,
fractional shares of the Preferred Stock on the basis of the proportion of
Preferred Stock represented by each Depositary Share as specified in the
applicable prospectus supplement. Holders of shares of Preferred Stock
received in exchange for Depositary Shares will no longer be entitled to
receive Depositary Shares in exchange for shares of Preferred Stock. If the
holder delivers Depositary Receipts evidencing a number of Depositary
Shares that is more than the number of Depositary Shares representing the
number of shares of Preferred Stock to be withdrawn, the Preferred Stock
Depositary will issue the holder a new Depositary Receipt evidencing such
excess number of Depositary Shares at the same time.
Prospective purchasers of Depositary Shares should be aware that
special tax, accounting and other considerations may be applicable to
instruments such as Depositary Shares.
MANAGEMENT
Directors and Officers
Set forth below is certain information regarding the directors,
executive officers and certain other officers of Teligent:
<PAGE>
Name Age Position and Offices
Executive Officers
Alex J. Mandl............... 55 Chairman of the Board and Chief Executive
Officer
Kirby G. Pickle, Jr......... 42 President and Chief Operating Officer
Laurence E. Harris.......... 63 Senior Vice President, General Counsel and
Assistant Secretary
Abraham L. Morris........... 40 Senior Vice President, Chief Financial
Officer and Treasurer
Steven F. Bell.............. 49 Senior Vice President for Human Resources
Other Officers
Richard J. Hanna............ 43 Senior Vice President for Sales and
Marketing
Keith W. Kaczmarek.......... 43 Senior Vice President for Engineering and
Operations
Philip C. McKinney.......... 38 Vice President and Chief Information Officer
Robert H. Schwartz.......... 33 Vice President for Corporate Development
and Strategy
Cindy L. Tallent............ 41 Vice President and Controller
David S. Turetsky........... 42 Vice President for Law and Regulatory
Affairs
Scott G. Bruce.............. 37 Secretary
Other Directors
Myles P. Berkman............ 62 Director
David J. Berkman............ 37 Director
William H. Berkman.......... 34 Director
Donald H. Jones............. 61 Director
Tetsuro Mikami.............. 47 Director
Rajendra Singh.............. 44 Director
Alex J. Mandl has been Chairman and Chief Executive Officer of
Teligent since September 1996. Prior to joining Teligent, Mr. Mandl served
as President and Chief Operating Officer of AT&T and Executive Vice
President of AT&T and CEO of AT&T's Communications Services Group
(1993-1995). As President and Chief Operating Officer, Mr. Mandl oversaw
AT&T's operations including its long-distance, wireless and local
communications services, in addition to its credit card and Internet
businesses. As Chief Financial Officer of AT&T from 1991 to 1993, Mr. Mandl
directed AT&T's financial strategy, policy and operations, and managed the
acquisition of McCaw Cellular Communications, Inc. Earlier, Mr. Mandl
served as Chairman and CEO of SeaLand Services, Inc., an ocean
transportation and distribution services company. Mr. Mandl serves on the
boards of the Warner-Lambert Company, Dell Computer Corporation, Forstmann
Little & Co. and General Instrument Corp.
<PAGE>
Kirby G. Pickle, Jr., has served as President and Chief Operating
Officer since February 1997. Prior to that, Mr. Pickle served as Executive
Vice President of MFS Communications Company, Inc. and President and Chief
Operating Officer of one of its subsidiaries, UUNET Technologies, Inc.
Earlier, as President and COO of MFS Intelenet, Inc., Mr. Pickle managed
three businesses that generated a majority of MFS' revenues. Prior to his
service for MFS, Mr. Pickle was a Vice President at US Sprint (now known as
Sprint), a regional sales manager for MCI Communications Corporation, Inc.
and held various management positions at AT&T.
Laurence E. Harris has been Senior Vice President and General Counsel
since December 1996. Prior to joining the Company, Mr. Harris served as
Senior Vice President of Law and Public Policy for MCI Communications
Corporation. Earlier, Mr. Harris was President and Chief Operating Officer
of Metromedia Telecommunications, Inc. and CRICO Communications, a
privately-held paging company. Mr. Harris also served as chief of the FCC's
Mass Media Bureau where he was responsible for regulation and policy for
cable, television and radio broadcasting. Mr. Harris was also responsible
for regulatory and antitrust activities at MCI before serving at the FCC.
Abraham L. Morris joined Teligent in April 1997 as Senior Vice
President, Chief Financial Officer and Treasurer. Prior to that, he served
as Senior Vice President for Operations Support at MFS Communications
Company, Inc., where Mr. Morris was involved in business development,
revenue assurance and co-carrier/local service activities. Earlier, Mr.
Morris was Vice President and Chief Transition Officer for MFS Intelenet,
Inc., and previously was Treasurer of MFS. Mr. Morris was involved in MFS'
capital raising activities, including its initial public offering. Before
joining MFS, Mr. Morris served as General Manager, Mergers and Acquisitions
at Peter Kiewit Sons', Inc., a diversified industrial services company.
Steven F. Bell joined Teligent as its Senior Vice President for Human
Resources in April 1997. Prior to joining Teligent, Mr. Bell served as Vice
President for Human Resources and Organization Development at COMSAT
Corporation where he was responsible for executive and staff recruitment
and development at the 4,000-employee satellite communications company.
Earlier, Mr. Bell was Vice President, Human Resources for the worldwide
technologies division of American Express Corporation.
Richard J. Hanna joined Teligent in April 1997 as Senior Vice
President for Sales and Marketing. Prior to joining Teligent, Mr. Hanna
served as President and Chief Executive Officer of MFS Intelenet, Inc.
Prior to that, he served as Vice President of Sales and Marketing for AT&T
where he was responsible for developing its commercial sales channel. Mr.
Hanna also served in senior sales and marketing positions at MCI
Communications Corporation and Sprint.
Keith W. Kaczmarek joined Teligent in May 1997 as Senior Vice
President of Engineering and Operations. Prior to joining Teligent, he
served as Vice President of Engineering and Operations for AirTouch/PCS
PrimeCo, where he managed the development and installation of PCS
deployment of CDMA wireless technology. Between 1993 and 1995, as Vice
President of Technology Development and Product Development for Nextel
Communications, Mr. Kaczmarek managed technology development for the
company's digital mobile wireless networks. He has also held senior
positions at AirTouch Communications, GTE Corp. and GTE Mobilnet, Inc.
Philip C. McKinney, Teligent's Vice President and Chief Information
Officer, joined Teligent in March 1997 as Vice President for Information
Technology. Prior to joining the Company, Mr. McKinney was Director of
Consulting Services for Computer Sciences Corporation where he oversaw
client engagements for start-up and established providers in the
communication industry.
<PAGE>
Earlier, Mr. McKinney was Director of Operations where he managed customer
care, billing and information technology outsourcing services to
telecommunication clients in North America.
Robert H. Schwartz joined Teligent upon inception in March 1996 as
Vice President of Corporate Development and Strategy. Previously, Mr.
Schwartz served as Director of Corporate Development for Nextel where he
was involved in strategic planning, mergers and acquisitions and various
investment transactions including public fundraising activities. Prior to
that, Mr. Schwartz performed consulting work in the communications industry
including satellite, cable television, and wireless telecommunications
companies.
Cindy L. Tallent joined Teligent in September 1997 as Vice President
and Controller. Prior to joining the Company, Ms. Tallent was Senior Vice
President, Finance for Global TeleSystems Group, Inc. There she was
involved in establishing and managing international joint ventures,
securing financing and implementing systems and controls. Ms. Tallent also
held various finance positions at GTE where she was employed for ten years
and was Vice President and Chief Financial Officer for GTE Spacenet when
she left in 1995. Prior to GTE, Ms. Tallent was a senior accountant with
Price Waterhouse LLP.
David S. Turetsky joined Teligent in May 1997 as Vice President for
Law and Regulatory Affairs. He served in the Antitrust Division of the U.S.
Department of Justice as Deputy Assistant Attorney General for Civil and
Regulatory Affairs and originally as senior counsel to the Assistant
Attorney General. He assisted in developing the Clinton Administration's
telecommunications policy, including the Telecommunications Act of 1996,
and was responsible for the Division's telecommunications work. While at
the U.S. Department of Justice, he represented the United States in
international telecommunications and antitrust matters and assisted in
overseeing a telecommunications services accord through the World Trade
Organization. Earlier, he was a partner in the law offices of LeBoeuf,
Lamb, Leiby & MacRae.
Scott G. Bruce has been Secretary of the Company since its inception
in March 1996. Mr. Bruce is also Vice President, General Counsel and
Secretary of Associated and served as the Company's General Counsel until
December 1996. Mr. Bruce has experience in the fields of corporate mergers
and acquisitions and securities law. Between 1987 and 1992, he was a
corporate attorney at Wolf, Block, Schorr and Solis-Cohen in Philadelphia.
Earlier, he worked in the New York office of Touche Ross & Co., the
predecessor to Deloitte & Touche LLP.
Myles P. Berkman has been a director of Teligent since its inception
in March 1996. Mr. Berkman is Chairman, Chief Executive Officer, President
and Treasurer of The Associated Group, Inc. ("Associated"), positions he
has held since 1994 with the exception of Chairman which he has held since
November 1995. In addition to beneficially owning 48.3% of Teligent's Class
B common stock, Associated is engaged in the ownership and operation of
various communications related businesses, including a provider of wireless
location services, international wireless telephony, radio broadcasting and
a portfolio of marketable equity securities. From 1979 to 1994, Mr. Berkman
was President, Chief Operating Officer and Treasurer of Associated
Communications Corporation ("ACC"), the parent corporation of Associated
prior to 1995, which also was a publicly traded company. Mr. Berkman
developed ACC into one of the largest independent U.S. cellular operators
at the time of its sale to SBC Communications Inc. in 1994. Mr. Berkman is
the father of William H. Berkman and David J. Berkman, each of whom is also
a director of Teligent.
David J. Berkman has been a director of Teligent since its inception
in March 1996. Since 1994, Mr. Berkman has served as Executive Vice
President and a director of Associated. In addition,
<PAGE>
Mr. Berkman serves as Chairman and Chief Executive Officer of TruePosition,
Inc., a wholly owned subsidiary of Associated. From 1993 to 1994, Mr.
Berkman was Executive Vice President and a member of the Board of Directors
of ACC. Mr. Berkman serves as director and Vice Chairman of Grupo Portatel,
S.A. de C.V., a company operating cellular systems in Mexico in which
Associated has a significant interest. Mr. Berkman is also a director of
Entercom Communications Corp., a public company, which is the sixth largest
radio broadcasting company in the U.S., and V-SPAN, Inc., a private company
that specializes in teleconferencing services. David J. Berkman is the son
of Myles P. Berkman and the brother of William H. Berkman, each of whom is
also a director of Teligent.
William H. Berkman has been a director of Teligent since its inception
in March 1996. Mr. Berkman is currently President of Microwave Services,
Inc., a wholly owned subsidiary of Associated. Since June 5, 1997, Mr.
Berkman has served as an Assistant Secretary of Associated. Before joining
Associated, Mr. Berkman held several executive positions at The News
Corporation, Ltd. Mr. Berkman also serves as a director of CMG Information
Services Inc., a public company that provides Internet solutions through
its operating companies and strategic venture investments. William H.
Berkman is the son of Myles P. Berkman and the brother of David J. Berkman,
each of whom is also a director of Teligent.
Donald H. Jones has been a director of Teligent since November 1997.
He has served as a director of Associated since 1994. Prior to 1994, Mr.
Jones served as a director of ACC beginning in 1986, as well as a
consultant to ACC beginning in 1982. Mr. Jones is Chairman of Triangle
Capital Corporation, a firm engaged in the development of new business
enterprises and investment activities. Until April 1997, Mr. Jones was Vice
Chairman of Nets Inc., formerly Industry.Net Corporation, a company that
was engaged in internet commerce, and from 1992 to June 1996, was its
Chairman. Mr. Jones is a director of Respironics Inc., a corporation
engaged in the development, manufacturing and marketing of medical
equipment, and PNC Equity Management Corporation, a corporation engaged in
the investment in growth companies. Mr. Jones also serves as an adjunct
professor of entrepreneurship at the Carnegie Mellon Graduate School of
Business.
Tetsuro Mikami has been a director of Teligent since November 1997.
Since January 1999, Mr. Mikami has served as Director, Overseas Carrier
Business Group, Global Business Division of Nippon Telegraph and Telephone
Corporation ("NTT"). From April 1993 to December 1998, Mr. Mikami served as
General Manager, Business Solutions Group, Long Distance, of NTT. Mr.
Mikami has been with NTT for over twenty years and has served in various
senior management roles. He currently resides in Tokyo, Japan.
Dr. Rajendra Singh has been a director of Teligent since its inception
in March 1996. Since December 1993, Dr. Singh has served as Chairman of the
Board and Chief Executive Officer of Telcom Ventures, L.L.C. ("Telcom
Ventures"). Dr. Singh also served as President of Telcom Ventures, through
September 1997. Dr. Singh also serves as President and Treasurer of Digital
Services Corporation, an affiliate of Telcom Ventures. Dr. Singh founded
Telcom Ventures in 1993 and, together with his family, is one of the
principal owners of that company. From October 1998 to June 1999, Dr. Singh
served as Chairman of the Board and acting Chief Executive Officer of LCC
International, Inc., a worldwide provider of wireless engineering and
design services and related products which he co-founded in 1983 and which
is an affiliate of Telcom Ventures. Dr. Singh continues to serve on the
Board of Directors of LCC International, Inc. The Singh family and The
Carlyle Group are the principal owners of Telcom Ventures. Dr. Singh has
created widely- used standards of system design and methodology in the
cellular industry.
<PAGE>
On April 22, 1999, Lucent Technologies announced that it had agreed to
sell its U.S. business communications systems sales group that serves small
and medium-sized businesses to a newly-formed company which will be led by
Susan Mandl. Susan Mandl is the wife of Alex Mandl, the CEO of Teligent.
Susan Mandl was formerly president and CEO of Newcourt Communications
Finance and will be Chairman and CEO and the principal stockholder of the
new company. It has been announced that the new company intends to provide
communication equipment, supplies and a full range of other communications
services, including, as an agent, services comparable to those offered by
Teligent, to the small and medium-sized business market. Teligent has, from
time to time, explored business relationships with other companies which
offer equipment and supplies similar to those offered by the new company.
In this regard, Teligent is exploring a business relationship with the new
company. Alex Mandl will have no equity interest in the new company, but he
will be jointly liable with Susan Mandl for the borrowings which will be
used to finance the purchase of a portion of Susan Mandl's equity in the
new company.
SELLING STOCKHOLDER
The following table sets forth, as of April 23, 1999, certain
information regarding the share ownership of the selling stockholder. The
registration of the selling stockholder's common stock does not necessarily
mean that the selling stockholder will offer or sell any of the shares.
Common Stock (1)
Shares Shares
Beneficially Beneficially
Owned Percent Shares Owned If
Name of Selling Prior to This Of Offered All Shares
Stockholder(2) Offering Ownership for Sale Are Sold
Telcom Ventures,
L.L.C.(3) 17,206,210 32.6% (4) 2,000,000 (5) 15,206,210
200 N. Union Street,
Suite 300
Alexandria, VA 22201
(1) Unless otherwise indicated, the selling stockholder listed above has
represented that it possesses sole voting and sole investment power
with respect to the shares beneficially owned by such entity includes
all options, warrants and convertible securities currently exercisable
or exercisable within 60 days of April 23, 1999. The percentages of
beneficial ownership as to such entity assumes the exercise or
conversion of all options, warrants and convertible securities held by
such entity.
(2) The names of additional selling stockholders may be provided subsequent
hereto.
(3) Dr. Rajendra Singh, Chairman of the Board and Chief Executive Officer
of Telcom Ventures, L.L.C., is a member of the board of directors of
Teligent. Teligent is or was a party to numerous agreements with
Telcom Ventures, L.L.C. All shares are held of record by Telcom-DTS
Investors, L.L.C., an affiliate of Telcom Ventures L.L.C.
(4) Reflects ownership as percentage of Class A common stock and Class B
common stock issued and outstanding.
(5) Assumes conversion of the Series B-2 common stock beneficially owned
by Telcom Ventures, L.L.C. and offered for sale into shares of Class A
common stock.
In November 1998, Telcom filed, pursuant to its registration rights
agreement with Teligent, a "demand" registration request with respect to
8,603,000 of its Teligent shares of common stock. On June 8, 1999, Telcom
withdrew its "demand" registration. The shares of common stock being
registered by Telcom hereby are being registered pursuant to Telcom's
"piggyback" registration
<PAGE>
rights under its registration rights agreement.
PLAN OF DISTRIBUTION
Teligent and the selling stockholder may sell the securities in any of
three ways, or in any combination thereof, as follows:
o through underwriters or dealers;
o directly to a limited number of purchasers or to a single
purchaser; or
o through agents.
A prospectus supplement will set forth the terms of the offering of
the securities offered thereby, including:
o the name or names of any underwriters and the respective amounts
of such securities underwritten or purchased by each of them;
o the initial public offering price of such securities and the
proceeds to Teligent or the selling stockholder, if any, and
any discounts, commissions or concessions allowed or paid to
dealers;
o any securities exchanges on which such securities may be listed;
and
o the number of shares of Class A common stock to be sold by
the selling stockholder, if any.
Only underwriters named in such prospectus supplement are deemed to be
underwriters in connection with the securities offered thereby.
If underwriters are used in the sale of any securities, such
securities will be acquired by the underwriters for their own account and
may be resold from time to time in one or more transactions, including
negotiated transactions, at a fixed public offering price or at varying
prices determined at the time of sale. Such securities may be either
offered to the public through underwriting syndicates represented by
managing underwriters, or directly by underwriters. Unless otherwise set
forth in the applicable prospectus supplement, the obligations of the
underwriters to purchase such securities will be subject to certain
conditions precedent and the underwriters will be obligated to purchase all
of such securities if any are purchased. Any initial public offering price
and any discounts or concessions allowed or paid to dealers may be changed
from time to time.
The securities may be sold directly by us or the selling stockholder
or through agents designated by us or the selling stockholder from time to
time. Any agent involved in the offer or sale of the securities in respect
of which a prospectus supplement is delivered will be named, and any
commissions payable by us or the selling stockholder to such agent will be
set forth, in the prospectus supplement. Unless otherwise indicated in the
prospectus supplement, any such agent will be acting on a best efforts
basis for the period of its appointment.
If so indicated in the applicable prospectus supplement, we or the
selling stockholder will
<PAGE>
authorize underwriters, dealers or agents to solicit offers by
institutional investors to purchase the securities from us and the selling
stockholder at the public offering price set forth in the prospectus
supplement pursuant to delayed delivery contracts providing for payment and
delivery on a specified date in the future. There may be limitations on the
minimum amount which may be purchased by any such institutional investor or
on the portion of the aggregate principal amount of the particular
securities which may be sold pursuant to such arrangements. Institutional
investors to which such offers may be made, when authorized, include
commercial and savings banks, insurance companies, pension funds,
investment companies, educational and charitable institutions, and such
other institutions as may be approved by us and the selling stockholder, if
applicable. The obligations of any such purchasers pursuant to such delayed
delivery and payment arrangements will be subject only to those conditions
set forth in the prospectus supplement, and the prospectus supplement will
set forth the commission payable for solicitation of such contracts.
Underwriters will not have any responsibility in respect of the validity of
such arrangements or the performance of Teligent, the selling stockholder
or such institutional investors thereunder.
Securities offered other than Class A common stock may be a new issue
of securities with no established trading market. Any underwriters to whom
such securities are sold by us for public offering and sale may make a
market in such securities, but such underwriters will not be obligated to
do so and may discontinue any market making at any time without notice. No
assurance can be given as to the liquidity of or the trading markets for
any such securities.
Stockholders may sell their shares through various arrangements
involving mandatorily exchangeable securities, and this prospectus may be
delivered in conjunction with such sales.
We will not receive any proceeds from the sale of shares of Class A
common stock by the selling stockholder. We will, however, bear certain
expenses in connection with the registration of the securities being
offered under this prospectus by the selling stockholder, including all
costs incident to the offering and sale of the securities to the public
other than any commissions and discounts of underwriters, dealers or agents
and any transfer taxes.
Agents and underwriters may be entitled under agreements entered into
with us or the selling stockholder to indemnification by us and, if
applicable, the selling stockholder against certain civil liabilities,
including liabilities under the Securities Act of 1933, or to contribution
with respect to payments which the agents or underwriters may be required
to make in respect thereof. We will also indemnify the selling stockholder,
if any, against such liabilities and agree to make such contributions on
behalf of the selling stockholder. Agents and underwriters may be customers
of, engage in transactions with, or perform services for us or the selling
stockholder in the ordinary course of business.
LEGAL MATTERS
The validity of the securities in respect of which this prospectus is
being delivered will be passed on for us and the selling stockholder by our
counsel, Cravath, Swaine & Moore, New York, New York.
<PAGE>
EXPERTS
Ernst & Young LLP, independent auditors, have audited our consolidated
financial statements included in our Annual Report on Form 10-K for the
year ended December 31, 1998, as set forth in their report, which is
incorporated by reference in this prospectus. Our financial statements are
incorporated by reference in reliance on Ernst & Young LLP's report, given
on their authority as experts in accounting and auditing.
<PAGE>
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
The following table sets forth the costs and expenses payable by
Teligent in connection with sale of the securities being registered hereby.
All amounts are estimates, except the registration fee.
Item Amount
---- ------
Registration Fee $308,545
Rating Agency Fees* 150,000
Trustees Fees and Expenses* 25,000
Printing* 400,000
Legal Fees and Expenses* 750,000
Accounting Fees and Expenses* 150,000
Miscellaneous Expenses* 110,000
-------------------
$ 1,893,545
==================
Total
*Estimated
Item 15. Indemnification of Directors and Officers
Section 102 of the Delaware General Corporation Law ("DGCL"), as
amended, allows a corporation to eliminate the personal liability of
directors of a corporation to the corporation or its stockholders for
monetary damages for a breach of fiduciary duty as a director, except where
the director breached his duty of loyalty, failed to act in good faith,
engaged in intentional misconduct or knowingly violated a law, authorized
the payment of a dividend or approved a stock repurchase in violation of
Delaware corporate law or obtained an improper personal benefit. Section
145 of the DGCL, as amended, provides that a corporation may indemnify any
person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (other than an action by or in
the right of the corporation), by reason of the fact that he is or was a
director, officer, employee or agent of the corporation or is or was
serving at its request in such capacity in another corporation,
partnership, joint venture, trust or other enterprise, against expenses
(including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with such
action, suit or proceeding if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
corporation and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful.
Certificate of Incorporation
Article Eighth of Teligent's certificate of incorporation provides
that Teligent will indemnify its directors and officers to the fullest
extent authorized or permitted by law, as now or hereafter in effect, and
such right to indemnification will continue as to a person who has ceased
to be a director
<PAGE>
or officer of Teligent and will inure to the benefit of his or her heirs,
executors and personal and legal representatives; provided, that except for
proceedings to enforce rights to indemnification, Teligent will not be
obligated to indemnify any director or officer (or his or her heirs,
executors or personal or legal representatives) in connection with a
proceeding (or part thereof) initiated by such person unless such
proceeding (or part thereof) was authorized or consented to by the Board of
Directors. The right to indemnification conferred by Article Eighth
includes the right to be paid by Teligent the expenses as incurred in
defending or otherwise participating in any proceeding in advance of its
final disposition. The rights to indemnification and to the advance of
expenses conferred in Article Eighth are not exclusive of any other right
which any person may have or hereafter acquire under the certificate of
incorporation, the by-laws of Teligent, any statute, agreement, vote of
stockholders or disinterested directors or otherwise.
By-laws
Section 1 of Article VIII of the By-laws provides that, subject to
Section 3 of Article VIII, Teligent will indemnify any person who was or is
a party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of
Teligent) by reason of the fact that such person is or was a director or
officer of Teligent, or is or was a director or officer of Teligent serving
at the request of Teligent as a director or officer, employee or agent of
another corporation, partnership, joint venture, trust, employee benefit
plan or other enterprise, against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably
incurred by such person in connection with such action, suit or proceeding
if such person acted in good faith and in a manner such person reasonably
believed to be in or not opposed to the best interests of Teligent, and,
with respect to any criminal action or proceeding, had no reasonable cause
to believe such person's conduct was unlawful. The termination of any
action, suit or proceeding by judgment, order, settlement, conviction, or
upon a plea of nolo contendere or its equivalent, will not, of itself,
create a presumption that the person did not act in good faith and in a
manner which such person reasonably believed to be in or not opposed to the
best interests of Teligent, and, with respect to any criminal action or
proceeding, had reasonable cause to believe that such person's conduct was
unlawful.
Section 2 of Article VIII of the By-laws provides that, subject to
Section 3 of Article VIII, Teligent will indemnify any person who was or is
a party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of Teligent to procure a
judgment in its favor by reason of the fact that such person is or was a
director or officer of Teligent, or is or was a director or officer of
Teligent serving at the request of Teligent as a director, officer,
employee or agent of another corporation, partnership, joint venture,
trust, employee benefit plan or other enterprise, against expenses
(including attorneys' fees) actually and reasonably incurred by such person
in connection with the defense or settlement of such action or suit if such
person acted in good faith and in a manner such person reasonably believed
to be in or not opposed to the best interests of Teligent; except that no
indemnification shall be made in respect of any claim, issue or matter as
to which such person shall have been adjudged to be liable to Teligent
unless and only to the extent that the Court of Chancery or the court in
which such action or suit was brought shall determine upon application
that, despite the adjudication of liability but in view of all the
circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses which the Court of Chancery or such other court
shall deem proper.
<PAGE>
Section 3 of Article VIII of the By-laws provides that any
indemnification under Article VIII (unless ordered by a court) will be made
by Teligent only as authorized in the specific case upon a determination
that indemnification of the director or officer is proper in the
circumstances because such person has met the applicable standard of
conduct set forth in Section 1 or Section 2 of Article VIII, as the case
may be. Such determination shall be made (i) by a majority vote of the
directors who are not parties to such action, suit or proceeding, even
though less than a quorum, or (ii) if there are no such directors, or if
such directors so direct, by independent legal counsel in a written opinion
or (iii) by the stockholders. To the extent, however, that a director or
officer of Teligent has been successful on the merits or otherwise in
defense of any action, suit or proceeding described above, or in defense of
any claim, issue or matter therein, such person will be indemnified against
expenses (including attorneys' fees) actually and reasonably incurred by
such person in connection therewith, without the necessity of authorization
in the specific case.
Section 5 of Article VIII of the By-laws provides that,
notwithstanding any contrary determination in the specific case under
Section 3 of Article VIII, and notwithstanding the absence of any
determination thereunder, any director or officer may apply to the Court of
Chancery in the State of Delaware for indemnification to the extent
otherwise permissible under Sections 1 and 2 of Article VIII. The basis of
such indemnification by a court will be a determination by such court that
indemnification of the director or officer is proper in the circumstances
because such person has met the applicable standards of conduct set forth
in Section 1 or 2 of Article VIII, as the case may be. Neither a contrary
determination in the specific case under Section 3 of Article VIII nor the
absence of any determination thereunder will be a defense to such
application or create a presumption that the director or officer seeking
indemnification has not met any applicable standard of conduct. Notice of
any application for indemnification pursuant to Section 5 shall be given to
Teligent promptly upon the filing of such application. If successful, in
whole or in part, the director or officer seeking indemnification will also
be entitled to be paid the expense of prosecuting such application.
Section 7 of Article VIII of the By-laws provides that the
indemnification and advancement of expenses provided by or granted pursuant
to Article VIII will not be deemed exclusive of any other rights to which
those seeking indemnification or advancement of expenses may be entitled
under the certificate of incorporation, any by-law, agreement, vote of
stockholders or disinterested directors or otherwise, both as to action in
such person's official capacity and as to action in another capacity while
holding such office, it being the policy of Teligent that indemnification
of the persons specified in Sections 1 and 2 of Article VIII shall be made
to the fullest extent permitted by law. The provisions of Article VIII are
not deemed to preclude the indemnification of any person who is not
specified in Section 1 or 2 of Article VIII but whom Teligent has the power
or obligation to indemnify under the provisions of the DGCL, or otherwise.
Section 8 of Article VIII of the By-laws provides that Teligent may
purchase and maintain insurance on behalf of any person who is or was a
director or officer of Teligent, or is or was a director or officer of
Teligent serving at the request of Teligent as a director, officer,
employee or agent of another corporation, partnership, joint venture,
trust, employee benefit plan or other enterprise, against any liability
asserted against such person and incurred by such person in any such
capacity, or arising out of such person's status as such, whether or not
Teligent would have the power or the obligation to indemnify such person
against such liability under the provisions of Article VIII. Section 11 of
Article VIII of the By-laws provides that notwithstanding anything
contained in Article VIII to the contrary, except for proceedings to
enforce rights to indemnification (which shall be governed by Section 5
thereof), Teligent will not be obligated to indemnify any director or
officer in connection with a proceeding (or part thereof) initiated by such
person unless
<PAGE>
such proceeding (or part thereof) was authorized or consented to by the Board
of Directors of Teligent.
In connection with any offering by the selling stockholder pursuant to
this registration statement, the selling stockholder has agreed to
indemnify Teligent, its directors and officers and each such person who
controls Teligent, against any and all liability arising from inaccurate
information provided to Teligent by the selling stockholder and contained
in the prospectus or any applicable supplement.
Insurance
The directors and officers of Teligent are covered by insurance
policies indemnifying against certain liabilities, including certain
liabilities arising under the Securities Act of 1933, as amended, which
might be incurred by them in such capacities and against which they cannot
be indemnified by Teligent.
Item 16. Exhibits
1.1 Form of Debt Securities Underwriting Agreement**
1.2 Form of Preferred Stock Underwriting Agreement**
1.3 Form of Common Stock Underwriting Agreement**
1.4 Form of Depositary Shares Underwriting Agreement**
4.1 Form of Stockholders Agreement, filed as Exhibit 4.1 to the
Registration Statement on Form S-1 (Registration No.
333-37381), dated November 26, 1997, and incorporated herein by
reference.
4.2 Form of Certificate for the Class A Common Stock, filed as
Exhibit 4.5 to the Company's Registration Statement on Form S-1
(Registration No. 333-37381), dated November 26, 1997, and
incorporated herein by reference.
4.3 Form of Indenture relating to Senior Debt Securities to be issued
hereunder
4.4 Form of Indenture relating to Subordinated Debt Securities to be
issued hereunder
4.5 Form of Deposit Agreement**
4.6 Form of Senior Debt Security**
4.7 Form of Subordinated Debt Security**
5.1 Opinion of Cravath, Swaine & Moore as to legality of the securities
being registered
10.1 Form of Indenture between the Registrant, as issuer, and First
Union National Bank, as Trustee, relating to Registrant's
Senior Notes due 2007, including form of Note, filed as Exhibit
4.2 to the Registrant's Registration Statement on Form S-1
(Registration No. 333-37381), dated November 26, 1997, and
incorporated herein by reference.
<PAGE>
10.2 Form of Pledge Agreement between Registrant, as issuer, and
First Union National Bank, as Escrow Agent, relating to
Registrant's Senior Notes due 2007, filed as Exhibit 4.3 to the
Company's Registration Statement on Form S-1 (Registration No.
333-37381), dated November 26, 1997, and incorporated herein by
reference.
10.3 Form of Indenture between the Registrant, as issuer, and First
Union National Bank, as Trustee, relating to Registrant's
Senior Discount Notes due 2008, including form of Note, filed
as Exhibit 4.4 to Teligent's Form of Annual Report on Form
10-K, filed on March 31, 1998, and incorporated by reference
herein.
10.4 Agreement, dated September 29, 1997, among Teligent, L.L.C.,
Digital Services Corporation, Telcom-DTS Investors, L.L.C.,
Microwave Services, Inc., The Associated Group, Inc. and
certain other parties.***
12.1 Statement regarding computation of ratios+
12.2 Statement regarding computation of ratios+
23.1 Consent of Cravath, Swaine & Moore (included in Exhibit 5.1)
23.2 Consent of Ernst & Young LLP, Independent Auditors
24 Power of Attorney+
25.1 Statement of Eligibility of Trustee for Senior Debt Securities
25.2 Statement of Eligibility of Trustee for the Subordinated Debt
Securities
** To be incorporated by reference herein in connection with the
offering of each series of securities
*** Incorporated by reference to Registrant's Registration Statement
on Form S-1 (Registration No. 333-37373)
+ previously filed
Item 17. Undertakings
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made
of securities registered hereby, a post-effective amendment to this
registration statement:
(i) to include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) to reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the
estimated maximum offering range
<PAGE>
may be reflected in the form of prospectus filed with the Securities
and Exchange Commission pursuant to Rule 424(b) under the Securities
Act of 1933 if, in the aggregate, the changes in volume and price
represent no more than a 20% change in the maximum aggregate offering
price set forth in the "Calculation of Registration Fee" table in the
effective registration statement;
(iii) to include any material information with respect to the
plan of distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement;
provided, however, that the undertakings set forth in paragraph (i)
and (ii) above do not apply if the information required to be included
in a post-effective amendment by those paragraphs is contained in
periodic reports filed by the registrant pursuant to section 13 or
section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in this registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned registrant hereby understands that, for purposes of
determining any liability under the Securities Act of 1933, each filing of
the Registrant's annual report pursuant to Section 13(a) or Section 15(d)
of the Securities Exchange Act of 1934 that is incorporated by reference in
the Registration Statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial bona fide
offering thereof.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the Registrant pursuant to the foregoing provisions,
or otherwise, the Registrant has been advised that in the opinion of the
SEC such indemnification is against public policy as expressed in the
Securities Act of 1933 and is, therefore, unenforceable. In the event that
a claim for indemnification against such liabilities (other than the
payment by the Registrant of expenses incurred or paid by a director,
officer or controlling person of the Registrant in the successful defense
of any action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
Registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against
public policy as expressed in the Securities Act of 1933 and will be
governed by the final adjudication of such issue.
The undersigned Registrant hereby undertakes to file an
application for the purpose of determining eligibility of the applicable
Trustee to act under subsection (a) of Section 310 of the Trust Indenture
Act of 1939 ("Act") in accordance with the rules and regulations prescribed
by the Commission under Section 305(b) (2) of the Act.
<PAGE>
SIGNATURE PAGE
Pursuant to the requirements of the Securities Act of 1933, as
amended, the Registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on Form S-3 and has caused
this registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Vienna, Commonwealth of Virginia,
on July 19, 1999.
TELIGENT, INC.
By: /s/ Alex J. Mandl
Name: Alex J. Mandl
Title: Chairman of the Board and CEO
Pursuant to the requirements of the Securities Act of 1933, as
amended, this registration statement has been signed by the following
persons in the capacities and on the dates indicated.
Signature Title Date
/s/ Alex J. Mandl Chairman of the Board, July 19, 1999
- -------------------- CEO and Director
Alex J. Mandl
* Senior Vice President and CFO July 19, 1999
- -------------------- (Principal Financial Officer)
Abraham L. Morris
* Vice President and Controller July 19, 1999
- -------------------- (Principal Accounting Officer)
Cindy L. Tallent
<PAGE>
Signature Title Date
* Director July 19, 1999
- --------------------
Myles P. Berkman
* Director July 19, 1999
- --------------------
David J. Berkman
* Director July 19, 1999
- --------------------
William H. Berkman
* Director July 19, 1999
- --------------------
Donald H. Jones
* Director July 19, 1999
- --------------------
Tetsuro Mikami
* Director July 19, 1999
- --------------------
Rajendra Singh
Laurence E. Harris, by signing his name below, signs this document on
behalf of each of the above-named persons specified by an asterisk (*),
pursuant to a power of attorney duly executed by such persons, filed with
the Securities and Exchange Commission in the Registrant's Statement on
June 11, 1999.
/s/ Laurence E. Harris
Laurence E. Harris
Attorney-in-fact
<PAGE>
EXHIBIT INDEX
The following Exhibits are filed as part of this Registration
Statement.
1.1 Form of Debt Securities Underwriting Agreement**
1.2 Form of Preferred Stock Underwriting Agreement**
1.3 Form of Common Stock Underwriting Agreement**
1.4 Form of Depositary Shares Underwriting Agreement**
4.1 Form of Stockholders Agreement, filed as Exhibit 4.1 to the
Registration Statement on Form S-1 (Registration No.
333-37381), dated November 26, 1997, and incorporated herein
by reference.
4.2 Form of Certificate for the Class A Common Stock, filed as
Exhibit 4.5 to the Company's Registration Statement on Form
S-1 (Registration No. 333-37381), dated November 26, 1997,
and incorporated herein by reference.
4.3 Form of Indenture relating to Senior Debt Securities to be
issued hereunder
4.4 Form of Indenture relating to Subordinated Debt Securities
to be issued hereunder
4.5 Form of Deposit Agreement**
4.6 Form of Senior Debt Security**
4.7 Form of Subordinated Debt Security**
5.1 Opinion of Cravath, Swaine & Moore as to legality of the
securities being registered
10.1 Form of Indenture between the Registrant, as issuer, and
First Union National Bank, as Trustee, relating to
Registrant's Senior Notes due 2007, including form of
Note, filed as Exhibit 4.2 to the Registrant's
Registration Statement on Form S-1 (Registration No.
333-37381), dated November 26, 1997, and incorporated
herein by reference.
10.2 Form of Pledge Agreement between Registrant, as issuer,
and First Union National Bank, as Escrow Agent, relating
to Registrant's Senior Notes due 2007, filed as Exhibit
4.3 to the Company's Registration Statement on Form S-1
(Registration No. 333-37381), dated November 26, 1997,
and incorporated herein by reference.
<PAGE>
10.3 Form of Indenture between the Registrant, as issuer, and
First Union National Bank, as Trustee, relating to
Registrant's Senior Discount Notes due 2008, including
form of Note, filed as Exhibit 4.4 to Teligent's Form of
Annual Report on Form 10-K, filed on March 31, 1998, and
incorporated by reference herein.
10.4 Agreement, dated September 29, 1997, among Teligent,
L.L.C., Digital Services Corporation, Telcom-DTS
Investors, L.L.C., Microwave Services, Inc., The
Associated Group, Inc. and certain other parties.
12.1 Statement regarding computation of ratios+
12.2 Statement regarding computation of ratios+
23.1 Consent of Cravath, Swaine & Moore (included in Exhibit
5.1)
23.2 Consent of Ernst & Young LLP, Independent Auditors
24 Power of Attorney+
25.1 Statement of Eligibility of Trustee for Senior Debt
Securities
25.2 Statement of Eligibility of Trustee for the Subordinated
Debt Securities
** To be incorporated by reference herein in connection
with the offering of each series of securities
*** Incorporated by reference to Registrant's Registration
Statement on Form S-1 (Registration No. 333-37373)
+ previously filed
EXHIBIT 4.3
==============================================================================
TELIGENT, INC.
TO
FIRST UNION NATIONAL BANK,
Trustee
---------------------------
Form of Senior Indenture
Dated as of
---------------------------
==============================================================================
<PAGE>
SENIOR INDENTURE, dated as of , by and
between TELIGENT, INC., a corporation duly
organized and existing under the laws of the
State of Delaware (herein called the "Company"),
having its principal office at 8065 Leesburg
Pike, Vienna, VA 22182 and FIRST UNION NATIONAL
BANK, a national banking association (herein
called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of
this Indenture to provide for the issuance from time to time of its
Securities, notes, bonds or other evidences of indebtedness, to be issued in
one or more fully registered series.
This Indenture is subject to the provisions of the Trust
Indenture Act of 1939, as amended, that are required to be part of this
Indenture and shall, to the extent applicable, be governed by such provisions.
All things necessary have been done to make this Indenture a
valid agreement of the Company, in accordance with its terms.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
That in order to declare the terms and conditions upon which
the Securities are to be authenticated, issued and delivered, and in
consideration of the premises and the purchase of the Securities by the
Holders thereof, it is mutually covenanted and agreed, for the equal and
proportionate benefit of the respective Holders from time to time of the
Securities or of a series thereof, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions.
For all purposes of this Indenture and of any indenture
supplemental hereto, except as otherwise expressly provided or unless the
context otherwise requires:
(a) the terms defined in this Article have the meanings
assigned to them in this Article, and include the plural as well as
the singular;
(b) all other terms used herein that are defined in the Trust
Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein, and the terms "cash transaction"
and "self-liquidating paper", as used in TIA Section 311, shall have
the meanings assigned to them in the rules of the Commission adopted
under the Trust Indenture Act; and
<PAGE>
(c) the words "herein", "hereof" and "hereunder" and other
words of similar import refer to this Indenture as a whole and not
to any particular Article, Section or other subdivision.
"Act", when used with respect to any Holder, has the meaning
specified in Section 104.
"Additional Amounts" means any additional amounts which are
required by a Security or by or pursuant to a Board Resolution, under
circumstances specified therein, to be paid by the Company in respect of
certain taxes imposed on certain Holders and which are owing to such Holders.
"Affiliate" means, as to any Person, any other Person that
directly or indirectly controls, or is under common control with, or is
controlled by, such Person. As used in this definition, "control" (including,
with its correlative meanings, "controlled by" and "under common control
with") shall mean possession, directly or indirectly, of power to direct or
cause the direction of management or policies of such Person (whether through
ownership of securities or partnership or other ownership interests, by
contract or otherwise), provided that, in any event, unless otherwise
specified in a supplemental indenture, any Person that owns directly or
indirectly 10% of more of the securities having ordinary voting power for the
election of directors or other governing body of a corporation or 10% or more
of the partnership or other ownership interests of any other Person (other
than as a limited partner of such other Person) shall be deemed to control
such corporation or other Person. Notwithstanding the foregoing, no individual
shall be deemed to be an Affiliate of a Person solely by reason of his or her
being an officer or director (or equivalent) of such Person.
"Authenticating Agent" means any person authorized by the
Trustee to authenticate Securities under Section 615.
"Bearer Security" means any Security established pursuant to
Section 301 which is payable to bearer.
"Board of Directors" means either the board of directors of the
Company or any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by
the Secretary or an Assistant Secretary of the Company to have been duly
adopted by the Board of Directors and to be in full force and effect on the
date of such certification, and delivered to the Trustee.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday
and Friday that is not a day on which banking institutions in the Borough of
Manhattan, The City of New York are authorized or obligated by law or
executive order to close.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Exchange Act, or, if at any
time after the execution of this Indenture such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then
the body performing such duties at such time.
<PAGE>
"Company" means the Person named as the "Company" in the first
paragraph of this Indenture, until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Request" or "Company Order" means a written request or
order signed in the name of the Company by an officer of the Company, and
delivered to the Trustee.
"Corporate Trust Office" means the principal corporate trust
office of the Trustee, at which at any particular time its corporate trust
business shall be administered, which office at the date of execution of this
Indenture is located at Corporate Trust (VA- 3279), 800 East Main Street,
Richmond, Virginia 23219 except that, with respect to presentation of
Securities for payment or for registration of transfer or exchange, such term
shall mean the office or agency of the Trustee at which, at any particular
time, its corporate agency business shall be conducted.
"Debt" means indebtedness for money borrowed, unless otherwise
specified in a supplemental indenture.
"Default" means any event, act or condition the occurrence of
which is, or after notice or the passage of time or both would be, an Event of
Default.
"Defaulted Interest" has the meaning specified in Section 307.
"Depositary" means, unless otherwise specified by the Company
pursuant to either Section 204 or 301, with respect to Securities of any
series issuable or issued as a Global Security, The Depository Trust Company,
New York, New York, or any successor thereto registered as a clearing agency
under the Exchange Act or other applicable statute or regulation.
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" means the Securities Exchange Act of 1934.
"Global Security" means, with respect to any series of
Securities issued hereunder, a Security which is executed by the Company and
authenticated and delivered by the Trustee to the Depositary or pursuant to
the Depositary's instruction, all in accordance with this Indenture and an
indenture supplemental hereto, if any, or Board Resolution and pursuant to a
Company Request, which shall be registered in the name of the Depositary or
its nominee and which shall represent, and shall be denominated in an amount
equal to the aggregate principal amount of, all of the Outstanding Securities
of such series or any portion thereof, in either case having the same terms,
including, without limitation, the same original issue date, date or dates on
which principal is due, and interest rate or method of determining interest.
"Holder" means a Person in whose name a Security is registered
in the Security Register.
"Indenture"or "this Indenture" means this instrument as
originally executed or as it may from time to time be supplemented or amended
by one or more
<PAGE>
indentures supplemental hereto entered into pursuant to the applicable
provisions hereof and shall include the terms of particular series of
Securities established as contemplated by Section 301.
"Interest", when used with respect to an Original Issue
Discount Security by which its terms bears interest only after Maturity, means
interest payable after Maturity.
"Interest Payment Date", when used with respect to any series
of Securities, means the Stated Maturity of any installment of interest on
those Securities.
"Maturity", when used with respect to any Securities, means the
date on which the principal of such Security becomes due and payable as
provided therein or herein, whether at the Stated Maturity or by declaration
of acceleration, call for redemption or otherwise.
"Officers' Certificate" means a certificate signed by the
Chairman of the Board of Directors, a Vice Chairman of the Board of Directors,
the President or a Vice President, and by the Chief Financial Officer, the
Chief Accounting Officer, the Treasurer, an Assistant Treasurer, the Secretary
or an Assistant Secretary of the Company and delivered to the Trustee, which
certificate shall comply with this Indenture.
"Opinion of Counsel" means a written opinion of counsel, who
may be an employee of or counsel for the Company and who shall be reasonably
acceptable to the Trustee.
"Original Issue Discount Security" means (i) any Security which
provides for an amount less than the principal amount thereof to be due and
payable upon a declaration for acceleration of the Maturity thereof, and (ii)
any other Security deemed an Original Issue Discount Security for United
States Federal income tax purposes.
"Outstanding", when used with respect to Securities of any
series, means, as of the date of determination, all such Securities
theretofore authenticated and delivered under this Indenture, except:
(i) such Securities theretofore canceled by the Trustee or
delivered to the Trustee for cancelation;
(ii) such Securities for whose payment or redemption money in
the necessary amount has been theretofore deposited with the Trustee
or any Paying Agent (other than the Company) in trust or set aside
and segregated in trust by the Company (if the Company shall act as
its own Paying Agent) for the Holders of such Securities; provided
that, if such Securities are to be redeemed, notice of such
redemption has been duly given pursuant to this Indenture or
provision therefor reasonably satisfactory to the Trustee has been
made;
(iii) Securities, except to the extent expressly provided in
Sections 1202 and 1203, with respect to which the Company has
effected defeasance or covenant defeasance as provided in Article
Twelve; and
<PAGE>
(iv) Securities that have been paid pursuant to Section 306 or
in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than
any such Securities in respect of which there shall have been
presented to the Trustee proof satisfactory to it that such
Securities are held by a bona fide purchaser in whose hands the
Securities are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of such Securities Outstanding have given any request,
demand, authorization, direction, consent, notice or waiver hereunder, (i) the
principal amount of any Original Issue Discount Security that shall be deemed
to be Outstanding shall be the amount of the principal thereof that would be
due and payable as of the date of the taking of such action upon a declaration
of acceleration of the Maturity thereof and (ii) for the purpose of making the
calculations required by TIA Section 313, Securities owned by the Company or
any other obligor upon the Securities or any Affiliate of the Company or such
other obligor shall be disregarded and deemed not to be Outstanding, except
that, in determining whether the Trustee shall be protected in making such
calculation or in relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Securities that the Trustee knows
to be so owned shall be so disregarded. Securities so owned that have been
pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Trustee the pledgee's right so to act
with respect to such Securities and that the pledgee is not the Company or any
other obligor upon the Securities or any Affiliate of the Company or such
other obligor.
"Paying Agent" means any Person (including the Company acting
as Paying Agent) authorized by the Company to pay the principal of (and
premium, if any) or interest on any Securities on behalf of the Company.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization,
limited liability corporation or government or any agency or political
subdivision thereof.
"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that
evidenced by such particular Security; and, for the purposes of this
definition, any Security authenticated and delivered under Section 306 in
exchange for a mutilated security or in lieu of a lost, destroyed or stolen
Security shall be deemed to evidence the same debt as the mutilated, lost,
destroyed or stolen Security.
"Redemption Date", when used with respect to any Security to be
redeemed, in whole or in part, means the date fixed for such redemption by or
pursuant to this Indenture.
"Redemption Price", when used with respect to any Security to
be redeemed, means the price specified in the Security at which it is to be
redeemed pursuant to this Indenture.
"Registered Security" shall mean any Security which is
registered in the Security Register.
<PAGE>
"Regular Record Date" for the interest payable on any Security
on any Interest Payment Date means the date specified in such Security as the
Regular Record Date.
"Responsible Officer", when used with respect to the Trustee,
means the chairman or any vice-chairman of the board of directors, the
chairman or any vice- chairman of the executive committee of the board of
directors, the chairman of the trust committee, the president, any vice
president, the secretary, any assistant secretary, the treasurer, any
assistant treasurer, the cashier, any assistant cashier, any trust officer or
assistant trust officer, the controller or any assistant controller or any
other officer of the Trustee duly authorized and customarily performing
functions similar to those performed by any of the above-designated officers,
and also means, with respect to a particular corporate trust matter, any other
duly authorized officer to whom such matter is referred because of his
knowledge of and familiarity with the particular subject.
"Securities Act" means the Securities Act of 1933.
" Security" or "Securities" means any note or notes, bond or
bonds, debenture or debentures, or any other evidences of indebtedness, as the
case may be, of any series authenticated and delivered from time to time under
this Indenture.
"Security Register" and "Security Registrar" have the
respective meanings specified in Section 305.
"Special Record Date" for the payment of any Defaulted Interest
means a date fixed by the Trustee pursuant to Section 307.
"Stated Maturity" when used with respect to any Security or any
installment of principal thereof or interest thereon means the date specified
in such Security as the fixed date on which the principal of such Security or
such installment of principal or interest is due and payable.
"Subsidiary" means, with respect to any Person, unless
otherwise specified in a supplemental indenture, (i) any corporation more than
50% of the outstanding shares of Voting Stock of which is owned, directly or
indirectly, by such Person, or by one or more other Subsidiaries of such
Person, or by such Person and one or more other Subsidiaries of such Person,
(ii) any general partnership, joint venture or similar entity, more than 50%
of the outstanding partnership or similar interests of which are owned,
directly or indirectly, by such Person, or by one or more other Subsidiaries
of such Person, or by such Person and one or more other Subsidiaries of such
Person and (iii) any limited partnership of which such Person or any
Subsidiary of such Person is a general partner.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act of
1939, as amended by the Trust Indenture Reform Act of 1990, as in force at the
date as of which this instrument was executed except as provided in Section
905.
"Trustee" means the Person named as the Trustee in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean and include each Person who is then a Trustee hereunder.
If at any time there is more than one such
<PAGE>
Person, "Trustee" as used with respect to the Securities of any series shall
mean the Trustee with respect to Securities of that series.
"U.S. Government Obligations" means, unless otherwise specified
in a supplemental indenture, (x) securities that are (i) direct obligations of
the United States of America for the payment of which the full faith and
credit of the United States of America is pledged or (ii) obligations of a
Person controlled or supervised by and acting as an agency or instrumentality
of the United States of America the payment of which is unconditionally
guaranteed as a full faith and credit obligation by the United States of
America, which securities, in either case under clause (i) or (ii) above, are
not callable or redeemable at the option of the issuer thereof, and (y)
depository receipts issued by a bank (as defined in Section 3(a)(2) of the
Securities Act) as custodian with respect to any U.S. Government Obligation
that is specified in clause (x) above and held by such bank for the account of
the holder of such depository receipt, or with respect to any specific payment
of principal or interest on any U.S. Government Obligation that is so
specified and held, provided that (except as required by law) such custodian
is not authorized to make any deduction from the amount payable to the holder
of such depository receipt from any amount received by the custodian in
respect of the U.S. Government Obligation or the specific payment of principal
or interest of the U.S. Government Obligation evidenced by such depository
receipt.
"Vice President", when used with respect to the Company or the
Trustee, means any vice president, whether or not designated by a number or a
word or words added before or after the title "vice president".
"Voting Stock" means, with respect to any Person, securities of
any class or classes of capital stock in such Person entitling the holders
thereof (whether at all times or at the times that such class of capital stock
has voting power by reason of the happening of any contingency) to vote in the
election of members of the board of directors or comparable body of such
Person.
SECTION 102. Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee
to take any action under any provision of this Indenture, the Company shall
furnish to the Trustee an Officers' Certificate stating that all conditions
precedent, if any, provided for in this Indenture (including any covenant
compliance with which constitutes a condition precedent) relating to the
proposed action have been complied with and an Opinion of Counsel stating that
in the opinion of such counsel all such conditions precedent, if any, have
been complied with, except that in the case of any such application or request
as to which the furnishing of such documents is specifically required by any
provision of this Indenture relating to such particular application or
request, no additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than pursuant to
Section 1004) shall include:
(1) a statement that each individual signing such certificate
or opinion has read such covenant or condition and the definitions
herein relating thereto;
<PAGE>
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual,
he has made such examination or investigation as is necessary to
enable him to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified
by, or covered by an opinion of, any specified Person, it is not necessary
that all such matters be certified by, or covered by the opinion of, only one
such Person, or that they be so certified or covered by only one document, but
one such Person may certify or give an opinion with respect to some matters
and one or more other such Persons as to other matters, and any such Person
may certify or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or opinion
of, or representations by, counsel, unless such officer knows that the
certificate or opinion or representations with respect to the matters upon
which his certificate or opinion is based are erroneous. Any such certificate
or Opinion of Counsel may be based, insofar as it relates to factual matters,
upon (x) a certificate or opinion of, or representations by, an officer or
officers of the Company stating that the information with respect to such
factual matters is in the possession of the Company, unless such counsel knows
that the certificate or opinion or representations with respect to such
matters are erroneous or (y) one or more certificates of public officials.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be
consolidated and form one instrument.
SECTION 104. Acts of Holders.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given or
taken by Holders or Holders of any series may be embodied in and evidenced by
one or more instruments of substantially similar tenor signed by such Holders
in person or by agents duly appointed in writing; and, except as herein
otherwise expressly provided, such action shall become effective when such
instrument or instruments are delivered to the Trustee and, where it is hereby
expressly required, to the Company. If any Securities are denominated in coin
or currency other than that of the United States, then for the purposes of
determining whether the Holders of the requisite principal amount of
Securities have taken any action as herein described, the principal amount of
such Securities shall be deemed to be that amount of United States dollars
that could be obtained for such principal amount on the basis of the spot rate
of exchange into United States dollars for the currency in which
<PAGE>
such Securities are denominated (as evidenced to the Trustee by an Officers'
Certificate) as of the date the taking of such action by the Holders of such
requisite principal amount is evidenced to the Trustee as provided in the
immediately preceding sentence. Such instrument or instruments (and the action
embodied therein and evidenced thereby) are herein sometimes referred to as
the "Act" of the Holders signing such instrument or instruments. Proof of
execution of any such instrument or of a writing appointing any such agent
shall be sufficient for any purpose of this Indenture and conclusive in favor
of the Trustee and the Company, if made in the manner provided in this
Section.
(b) The fact and date of the execution by any Person of any
such instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized
by law to take acknowledgments of deeds, certifying that the individual
signing such instrument or writing acknowledged to him the execution thereof.
Where such execution is by a signer acting in a capacity other than his
individual capacity, such certificate or affidavit shall also constitute
sufficient proof of authority. The fact and date of the execution of any such
instrument or writing, or the authority of the Person executing the same, may
also be proved in any other manner that the Trustee deems sufficient.
(c) The principal amount and serial numbers of Securities held
by any Person, and the date of holding the same, shall be proved by the
Security Register.
(d) If the Company shall solicit from the Holders of Securities
any request, demand, authorization, direction, notice, consent, waiver or
other Act, the Company may, at its option, by or pursuant to a Board
Resolution, fix in advance a record date for the determination of Holders
entitled to give such request, demand, authorization, direction, notice,
consent, waiver or other Act, but the Company shall have no obligation to do
so. Notwithstanding TIA Section 316(c), such record date shall be the record
date specified in or pursuant to such Board Resolution, which shall be a date
not earlier than the date 30 days prior to the first solicitation of Holders
generally in connection therewith and not later than the date such
solicitation is completed. If such a record date is fixed, such request,
demand, authorization, direction, notice, consent, waiver or other Act may be
given before or after such record date, but only the Holders of record at the
close of business on such record date shall be deemed to be Holders for the
purposes of determining whether Holders of the requisite proportion of
Securities Outstanding have authorized or agreed or consented to such request,
demand, authorization, direction, notice, consent, waiver or other Act, and
for that purpose the Securities Outstanding shall be computed as of such
record date; provided that no such authorization, agreement or consent by the
Holders on such record date shall be deemed effective unless it shall become
effective pursuant to the provisions of this Indenture not later than eleven
months after the record date.
(e) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Security shall bind every
future Holder of the same Security and the Holder of every Security issued
upon the registration of transfer thereof or in exchange therefor or in lieu
thereof in respect of anything done, omitted or suffered to be done by the
Trustee, any Paying Agent or the Company in reliance thereon, whether or not
notation of such action is made upon such Security.
<PAGE>
SECTION 105. Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent,
waiver or Act of Holders or other document provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or
filed in writing to or with the Trustee at its Corporate Trust
Office, Attention: Corporate Trust Department, or
(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage
prepaid, to the Company addressed to it at the address of its
principal office specified in the first paragraph of this Indenture,
or at any other address previously furnished in writing to the
Trustee by the Company.
SECTION 106. Notice to Holders; Waiver.
Where this Indenture or any Security provides for notice of any
event to Holders by the Company or the Trustee, such notice shall be
sufficiently given (unless otherwise herein or in such Security expressly
provided) if in writing and mailed, first- class postage prepaid, to each
Holder affected by such event, at his address as it appears in the Security
Register, not later than the latest date, and not earlier than the earliest
date, prescribed for the giving of such notice. In any case where notice to
Holders is given by mail, neither the failure to mail such notice, nor any
defect in any notice so mailed, to any particular Holder shall affect the
sufficiency of such notice with respect to other Holders. Any notice mailed to
a Holder in the manner herein prescribed shall be conclusively deemed to have
been received by such Holder, whether or not such Holder actually receives
such notice. Where this Indenture or any Security provides for notice in any
manner, such notice may be waived in writing by the Person entitled to receive
such notice, either before or after the event, and such waiver shall be the
equivalent of such notice. Waivers of notice by Holders shall be filed with
the Trustee, but such filing shall not be a condition precedent to the
validity of any action taken in reliance upon such waiver.
In case by reason of the suspension of or irregularities in
regular mail service or by reason of any other cause, it shall be
impracticable to mail notice of any event to Holders when such notice is
required to be given pursuant to any provision of this Indenture, then any
manner of giving such notice as shall be satisfactory to the Trustee shall be
deemed to be a sufficient giving of such notice for every purpose hereunder.
SECTION 107. Effect of Headings, Table of Contents and
Recitals.
The Article and Section headings herein, the Table of Contents
and the Recitals are for convenience only and shall not affect the
construction hereof.
<PAGE>
SECTION 108. Successors and Assigns.
All covenants and agreements in this Indenture by the Company
and the Trustee shall bind their respective successors and assigns, whether so
expressed or not.
SECTION 109. Separability Clause.
In case any provision in this Indenture or in the Securities
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
SECTION 110. Benefits of Indenture.
Nothing in this Indenture or in any Securities, express or
implied, shall give to any Person (other than the parties hereto, any Paying
Agent, any Security Registrar and their successors hereunder, and the Holders)
any benefit or any legal or equitable right, remedy or claim under this
Indenture.
SECTION 111. Governing Law.
This Indenture shall be governed by and construed in accordance
with the law of the State of New York (without giving effect to the conflict
of laws principles thereof). The Trustee, the Company, and (upon their
acceptance of Securities) the Holders, agree to submit to the non-exclusive
jurisdiction of any United States Federal or State court located in the
Borough of Manhattan, in the City of New York in any action or proceeding
arising out of or relating to this Indenture or the Securities. This Indenture
is subject to the provisions of the Trust Indenture Act that are required to
be part of this Indenture and shall, to the extent applicable, be governed by
such provisions.
SECTION 112. Legal Holidays.
In any case where any Interest Payment Date, date established
for the payment of Defaulted Interest, Redemption Date or Stated Maturity or
Maturity of any Securities shall not be a Business Day, then (notwithstanding
any other provision of this Indenture or of the Securities) payment of
principal (or premium, if any) or interest need not be made on such date, but
may be made on the next succeeding Business Day with the same force and effect
as if made on the Interest Payment Date, date established for the payment of
Defaulted Interest, Redemption Date, or at the Stated Maturity or Maturity;
provided that no interest shall accrue for the period from and after such
Interest Payment Date, date established for the payment of defaulted interest,
Redemption Date, Stated Maturity or Maturity, as the case may be.
SECTION 113. No Recourse Against Others.
No recourse for the payment of the principal of, or premium, if
any, or interest on, any Security or for any claim based thereon or otherwise
in respect thereof, and no recourse under or upon any obligation, covenant or
agreement of the Company in this Indenture or in any Security, or because of
the creation of any Debt represented thereby, shall be had against any
incorporator, stockholder, officer, director, employee, controlling person of
the Company or of a Subsidiary of the Company or of any successor Person of
the Company or of a Subsidiary of the Company. Each Holder by
<PAGE>
accepting any Security waives and releases all such liability, and such waiver
and release is part of the consideration for the issuance of such Security.
SECTION 114. Exhibits and Schedules.
All exhibits and schedules attached hereto are by this
reference made a part hereof with the same effect as if herein set forth in
full.
SECTION 115. Counterparts.
This Indenture may be executed in any number of counterparts,
each of which shall be an original; but such counterparts shall together
constitute but one and the same instrument.
SECTION 116. Judgment Currency. The Company agrees, to the
fullest extent that it may effectively do so under applicable law, that (a) if
for the purpose of obtaining judgment in any court it is necessary to convert
the sum due in respect of the principal of, or premium or interest, if any, on
the Securities of any series (the "Required Currency") into a currency in
which a judgment will be rendered (the "Judgment Currency"), the rate of
exchange used shall be the rate at which in accordance with normal banking
procedures the Trustee could purchase in the City of New York the Required
Currency with the Judgment Currency on the New York Banking Day (as defined
below) preceding that on which final unappealable judgment is given and (b)
its obligations under this Indenture to make payments in the Required Currency
(i) shall not be discharged or satisfied by any tender, or any recovery
pursuant to any judgment (whether or not entered in accordance with subsection
(a)), in any currency other than the Required Currency, except to the extent
that such tender or recovery shall result in the actual receipt, by the payee,
of the full amount of the Required Currency expressed to be payable in respect
of such payments, (ii) shall be enforceable as an alternative or additional
cause of action for the purpose of recovering in the Required Currency the
amount, if any, by which such actual receipt shall fall short of the full
amount of the Required Currency so expressed to be payable and (iii) shall not
be affected by judgment being obtained for any other sum due under this
Indenture. For purposes of the foregoing, "New York Banking Day" means any day
except a Saturday, Sunday or a legal holiday in the City of New York or a day
on which banking institutions in the City of New York are authorized or
required by law or executive order to close.
SECTION 117. 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 118. Incorporation by Reference of TIA.
Whenever this Indenture refers to a provision of the TIA, the
provision is incorporated by reference in, and made a part of, this Indenture.
Any terms incorporated by reference in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by Commission rule
under the TIA, have the meanings so assigned to them therein.
<PAGE>
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally.
The Securities shall have such appropriate insertions,
omissions, substitutions and other variations as are required or permitted by
this Indenture and may have such letters, numbers or other marks of
identification and such legends or endorsements placed thereon, as may be
required to comply with applicable laws or regulations or with the rules of
any securities exchange, or as may, consistently herewith, be determined by
the officers executing such Securities, as evidenced by their execution of the
Securities. Any portion of the text of any Security may be set forth on the
reverse thereof, with an appropriate reference thereto on the face of the
Security.
The definitive Securities shall be printed, lithographed or
engraved or produced by any combination of these methods on steel engraved
borders or may be produced in any other manner, all as determined by the
officers executing such Securities, as evidenced by their execution of such
Securities, subject, with respect to the Securities of any series, to the
rules of any securities exchange on which such Securities are listed.
SECTION 202. Forms of Securities.
Each Security shall be in one of the forms approved from time
to time by or pursuant to a Board Resolution, or established in one or more
indentures supplemental hereto. Prior to the delivery of a Security to the
Trustee for authentication in any form approved by or pursuant to a Board
Resolution, the Company shall deliver to the Trustee the Board Resolution by
or pursuant to which such form of Security has been approved, which Board
Resolution shall have attached thereto a true and correct copy of the form of
Security which has been approved thereby or, if a Board Resolution authorizes
a specific officer or officers to approve a form of Security, a certificate of
such officer or officers approving the form of Security attached thereto. Any
form of Security approved by or pursuant to a Board Resolution must be
acceptable as to form to the Trustee, such acceptance to be evidenced by the
Trustee's authentication of Securities in that form or a certificate signed by
a Responsible Officer of the Trustee and delivered to the Company.
<PAGE>
SECTION 203. Form of Trustee's Certificate of Authentication.
The form of Trustee's Certificate of Authentication for any
Security issued pursuant to this Indenture shall be substantially as follows:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
FIRST UNION NATIONAL BANK,
as Trustee,
Dated: By:
Authorized Signatory
SECTION 204. Securities Issuable in the Form of a Global
Security.
(a) If the Company shall establish pursuant to Sections 202 and
301 that the Securities of a particular series are to be issued in
whole or in part in the form of one or more Global Securities, then
the Company shall execute and the Trustee or its agent shall, in
accordance with Section 303 and the Company Request delivered to the
Trustee or its agent thereunder, authenticate and deliver, such
Global Security or Securities, which (i) shall represent, and shall
be denominated in an amount equal to the aggregate principal amount
of, the Outstanding Securities of such series to be represented by
such Global Security or Securities, or such portion thereof as the
Company shall specify in a Company Request, (ii) shall be registered
in the name of the Depositary for such Global Security or Securities
or its nominee, (iii) shall be delivered by the Trustee or its agent
to the Depositary or pursuant to the Depositary's instruction and
(iv) shall bear a legend substantially to the following effect:
"Unless and until it is exchanged in whole or in part for the
individual Securities represented hereby, this Global Security may
not be transferred except as a whole by the Depositary to a nominee
of the Depositary or by a nominee of the Depositary to the
Depositary or another nominee of the Depositary or by the Depositary
or any such nominee to a successor Depositary or a nominee of such
successor Depositary."
(b) Notwithstanding any other provisions of this Section 204 or
of Section 305, and subject to the provisions of paragraph (c)
below, unless the terms of a Global Security expressly permit such
Global Security to be exchanged in whole or in part for individual
Securities, a Global Security may be transferred, in whole but not
in part and in the manner provided in Section 305, only to a nominee
of the Depositary for such Global Security, or to the Depositary, or
a successor Depositary for such Global Security selected or approved
by the Company, or to a nominee of such successor Depositary.
(c) (i) If at any time the Depositary for a Global Security
notifies the Company that it is unwilling or unable to continue as
Depositary for such Global
<PAGE>
Security or if at any time the Depositary for the Securities for
such series ceases to be a clearing agency registered under the
Exchange Act or other applicable statute or regulation, the Company
shall appoint a successor Depositary with respect to such Global
Security. If a successor Depositary for such Global Security is not
appointed by the Company within 90 days after the Company receives
such notice or becomes aware of such ineligibility, the Company will
execute, and the Trustee or its agent, upon receipt of a Company
Request for the authentication and delivery of individual Securities
of such series in exchange for such Global Security, will
authenticate and deliver, individual Securities of such series of
like tenor and terms in an aggregate principal amount equal to the
principal amount of the Global Security in exchange for such Global
Security.
(ii) The Company may at any time and in its sole discretion
determine that the Securities of any series or portion thereof
issued or issuable in the form of one or more Global Securities
shall no longer be represented by such Global Security or
Securities. In such event the Company will execute, and the Trustee,
upon receipt of a Company Request for the authentication and
delivery of individual Securities of such series in exchange in
whole or in part for such Global Security, will authenticate and
deliver individual Securities of such series of like tenor and terms
in definitive form in an aggregate principal amount equal to the
principal amount of such Global Security or Securities representing
such series or portion thereof in exchange for such Global Security
or Securities.
(iii) If specified by the Company pursuant to Sections 202 and
301 with respect to Securities issued or issuable in the form of a
Global Security, the Depositary for such Global Security may
surrender such Global Security in exchange in whole or in part for
individual Securities of such series of like tenor and terms in
definitive form on such terms as are acceptable to the Company and
such Depositary. Thereupon the Company shall execute, and the
Trustee or its agent shall authenticate and deliver, without service
charge, (1) to each Person specified by such Depositary a new
Security or Securities of the same series of like tenor and terms
and of any authorized denomination as requested by such Person in
aggregate principal amount equal to and in exchange for such
Person's beneficial interest in the Global Security; and (2) to such
Depositary a new Global Security of like tenor and terms and in an
authorized denomination equal to the difference, if any, between the
principal amount of the surrendered Global Security and the
aggregate principal amount of Securities delivered to the Holders
thereof.
(iv) In any exchange provided for in any of the preceding three
paragraphs, the Company will execute and the Trustee or its agent
will authenticate and deliver individual Securities in definitive
registered form in authorized denominations. Upon the exchange of
the entire principal amount of a Global Security for individual
Securities, such Global Security shall be canceled by the Trustee or
its agent. Except as provided in the preceding paragraph, Securities
issued in exchange for a Global Security pursuant to this Section
shall be registered in such names and in such authorized
denominations as the Depositary for such Global Security, pursuant
to instructions from its direct or indirect participants or
otherwise, shall instruct the Trustee or the Security Registrar. The
Trustee or the Security Registrar shall deliver such Securities to
the Persons in whose names such Securities are so registered.
<PAGE>
ARTICLE THREE
THE SECURITIES
SECTION 301. Title and Terms.
The aggregate principal amount of Securities that may be
authenticated and delivered and Outstanding under this Indenture is not
limited.
The Securities may be issued in one or more series up to an
aggregate principal amount of Securities as from time to time may be
authorized by the Board of Directors. All Securities of each series under this
Indenture shall in all respects be equally and ratably entitled to the
benefits hereof with respect to such series without preference, priority or
distinction on account of the actual time of the authentication and delivery
or Stated Maturity of the Securities of such series.
Each series of Securities shall be created either by or
pursuant to a Board Resolution or by or pursuant to an indenture supplemental
hereto. The Securities of each such series may bear such date or dates, be
payable at such place or places, have such Stated Maturity or Maturities, be
issuable at such premium over or discount from their face value, bear interest
at such rate or rates (which may be fixed or floating), from such date or
dates, payable in such installments and on such dates and at such place or
places to the Holders of Securities registered as such on such Regular Record
Dates, or may bear no interest, and may be redeemable or repayable at such
Redemption Price or Prices, whether at the option of the Holder or otherwise,
and upon such terms, all as shall be provided for in or pursuant to the Board
Resolution or in or pursuant to the supplemental indenture creating that
series. There may also be established in or pursuant to a Board Resolution or
in or pursuant to a supplemental indenture prior to the issuance of Securities
of each such series, provision for:
(1) the exchange or conversion of the Securities of that
series, at the option of the Company or the Holders thereof, for or
into new Securities of a different series or other securities or
other property of the Company or another Person, including shares of
capital stock of the Company or any subsidiary of the Company or of
any other Person or securities directly or indirectly convertible
into or exchangeable for any such shares;
(2) a sinking or purchase fund or other mandatory redemption or
other analogous obligation;
(3) if other than U.S. dollars, the currency or currencies or
units based on or related to currencies in which the Securities of
such series shall be denominated and in which payments of principal
of, and any premium, interest and Additional Amounts on, such
Securities shall or may be payable;
(4) if the principal of (and premium, if any) or interest, if
any, on the Securities of such series are to be payable, at the
election of the Company or a holder thereof, in a currency or
currencies or units based on or related to currencies other than
that in which the Securities are stated to be payable, the
<PAGE>
period or periods within which, and the terms and conditions upon
which, such election may be made;
(5) if the amount of payments of principal of (and premium, if
any) or interest, if any, on the Securities of such series may be
determined with reference to an index based on (i) a currency or
currencies or units based on or related to currencies other than
that in which the Securities are stated to be payable, (ii) changes
in the price of one or more other securities or groups or indexes of
securities or (iii) changes in the prices of one or more commodities
or groups or indexes of commodities, or any combination of the
foregoing, the manner in which such amounts shall be determined;
(6) if the aggregate principal amount of the Securities of that
series is to be limited, such limitations, and the maturity date of
the principal amount of the Securities of that series (which may be
fixed or extendible), and the rate or rates (which may be fixed or
floating) per annum at which the Securities of that series will bear
interest, if any, or the method of determining such rate or rates,
and the payment dates and record dates relating to such interest
payments;
(7) the exchange of Securities of that series, at the option of
the Holders thereof, for other Securities of the same series of the
same aggregate principal amount of a different authorized kind or
different authorized denomination or denominations, or both;
(8) the appointment by the Trustee of an Authenticating Agent
in one or more places other than the location of the office of the
Trustee with power to act on behalf of the Trustee and subject to
its direction in the authentication and delivery of the Securities
of any one or more series in connection with such transactions as
shall be specified in the provisions of this Indenture or in or
pursuant to the Board Resolution or the supplemental indenture
creating such series;
(9) the percentage of their principal amount at which such
Securities will be issued, and the portion of the principal amount
of Securities of the series, if other than the total principal
amount thereof, which shall be payable upon declaration of
acceleration of the Maturity thereof pursuant to Section 502 or
provable in bankruptcy pursuant to Section 504;
(10) any Event of Default with respect to the Securities of
such series, if not set forth herein and any additions, deletions or
other changes to the Events of Default set forth herein or to any
provision of Article Five that shall be applicable to the Securities
of such series (including a provision making any Event of Default
set forth herein inapplicable to the Securities of that series);
(11) any covenant solely for the benefit of the Securities of
such series and any additions, deletions or other changes to the
provisions of Article Ten or any definitions relating to such
Article that shall be applicable to the Securities of such series
(including a provision making any Section of such Article
inapplicable to the Securities of such series);
<PAGE>
(12) changes as to definitions contained herein, whether or not
contemplated by such definition;
(13) if the Securities of the series shall be issued in whole
or in part in the form of a Global Security or Global Securities,
the terms and conditions, if any, upon which such Global Security or
Global Securities may be exchanged in whole or in part for other
individual Securities; and the Depositary for such Global Security
or Global Securities (if other than the Depositary specified in
Section 101 hereof);
(14) the subordination of the Securities of such series to any
other indebtedness of the Company, including without limitation, the
Securities of any other series;
(15) the applicability, if any, of Sections 1202 or 1203 to the
Securities of the series and any provisions in modification of, in
addition to or in lieu of any of the provisions of Article Twelve;
(16) the issuance of Securities, even though such Securities
are not registered under the Securities Act, with or without
provisions for the exchange for securities so registered or other
similar or related provisions;
(17) securing the Securities;
(18) adding guarantors to the Securities and the terms relating
thereto including with respect to any subordination thereof;
(19) modifying the provisions of Articles Eight and Nine;
(20) whether Securities of the series are to be issuable as
Registered Securities, Bearer Securities (with or without coupons)
or both, any restrictions applicable to the offer, sale or delivery
of Bearer Securities and the terms upon which Bearer Securities of
the series may be exchanged for Registered Securities of the series
and vice versa (if permitted by applicable laws and regulations);
(21) adding to or modifying the terms governing redemption of
the Securities; and
(22) any other terms of the series, which shall not be
inconsistent with the provisions of this Indenture, all upon such
terms as may be determined in or pursuant to a Board Resolution or
in or pursuant to a supplemental indenture with respect to such
series.
All Securities of the same series shall be substantially
identical in tenor and effect, except as to denomination.
The form of the Securities of each series shall be established
pursuant to the provisions of this Indenture in or pursuant to the Board
Resolution or in or pursuant to the supplemental indenture creating such
series. The Securities of each series shall be distinguished from the
Securities of each other series in such manner, reasonably satisfactory to the
Trustee, as the Board of Directors may determine.
<PAGE>
Unless otherwise provided with respect to Securities of a
particular series, the Securities of any series may only be issuable in
registered form, without coupons.
Any terms or provisions in respect of the Securities of any
series issued under this Indenture may be determined pursuant to this Section
by providing in a Board Resolution or supplemental indenture for the method by
which such terms or provisions shall be determined.
SECTION 302. Denominations.
The Securities of each series shall be issuable in such
denominations and currency as shall be provided in the provisions of this
Indenture or in or pursuant to the Board Resolution or the supplemental
indenture creating such series. In the absence of any such provisions with
respect to the Securities of any series, the Securities of that series shall
be issuable only in fully registered form in denominations of $1,000 and any
integral multiple thereof.
SECTION 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by
its Chairman, its President or a Vice President and attested by its Secretary
or an Assistant Secretary. The signature of any of these officers on the
Securities may be manual or facsimile of the present or any future
such authorized officer and may be imprinted or otherwise reproduced on the
Securities.
Securities bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall bind
the Company, notwithstanding that such individuals or any of them have ceased
to hold such offices prior to the authentication and delivery of such
Securities or did not hold such offices at the date of such Securities.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities executed by the
Company to the Trustee for authentication, together with a Company Order for
the authentication and delivery of such Securities, and the Trustee in
accordance with such Company Order shall; and the Trustee shall, upon Company
Order, authenticate and make available for delivery such Securities as in this
Indenture provided and not otherwise.
Prior to any such authentication and delivery, the Trustee
shall be entitled to receive, in addition to any Officers' Certificate and
Opinion of Counsel required to be furnished to the Trustee pursuant to Section
102, and the Board Resolution and any certificate relating to the issuance of
the series of Securities required to be furnished pursuant to Section 202, an
Opinion of Counsel to the effect that:
(1) all instruments furnished to the Trustee conform to the
requirements of the Indenture and constitute sufficient authority
hereunder for the Trustee to authenticate and deliver such
Securities;
(2) the form and terms (or in connection with the issuance of
medium- term Securities under Section 311, the manner of determining
the terms) of such
<PAGE>
Securities have been established in conformity with the provisions
of this Indenture;
(3) all laws and requirements with respect to the execution and
delivery by the Company of such Securities have been complied with,
the Company has the corporate power to issue such Securities and
such Securities have been duly authorized and delivered by the
Company and, assuming due authentication and delivery by the
Trustee, constitute legal, valid and binding obligations of the
Company enforceable in accordance with their terms (subject, as to
enforcement of remedies, to applicable bankruptcy, reorganization,
insolvency, fraudulent conveyance, moratorium or other laws and
legal principles affecting creditors' rights generally from time to
time in effect and to general equitable principles, whether applied
in an action at law or in equity) and entitled to the benefits of
this Indenture, equally and ratably with all other Securities, if
any, of such series Outstanding; and
(4) such other matters as the Trustee may reasonably request;
and, if the authentication and delivery relates to a new series of
Securities created by an indenture supplemental hereto, also stating
that all laws and requirements with respect to the form and
execution by the Company of the supplemental indenture with respect
to that series of Securities have been complied with, the Company
has corporate power to execute and deliver any such supplemental
indenture and has taken all necessary corporate action for those
purposes and any such supplemental indenture has been executed and
delivered and constitutes the legal, valid and binding obligation of
the Company enforceable in accordance with its terms (subject, as to
enforcement of remedies, to applicable bankruptcy, reorganization,
insolvency, fraudulent conveyance, moratorium or other laws and
legal principles affecting creditors' rights generally from time to
time in effect and to general equitable principles, whether applied
in an action at law or in equity).
The Trustee shall not be required to authenticate such
Securities if the issue thereof will adversely affect the Trustee's own
rights, duties or immunities under the Securities and this Indenture.
Unless otherwise provided in the form of Security for any
series, all Securities shall be dated the date of their authentication.
No Security shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there appears on
such Security a certificate of authentication substantially in the form
provided for herein executed by the Trustee by manual signature of an
authorized officer, and such certificate upon any Security shall be conclusive
evidence, and the only evidence, that such Security has been duly
authenticated and delivered hereunder and is entitled to the benefits of this
Indenture.
SECTION 304. Temporary Securities.
Pending the preparation of definitive Securities of any series,
the Company may execute, and, upon receipt of the documents required by
Section 303, together with a Company Order, the Trustee shall authenticate and
deliver, temporary Securities which are printed, lithographed, typewritten,
mimeographed or otherwise
<PAGE>
produced, in any authorized denomination, substantially of the tenor of the
definitive Securities in lieu of which they are issued and with such
appropriate insertions, omissions, substitutions and other variations as the
officers executing such Securities may determine, as conclusively evidenced by
their execution of such Securities.
If temporary Securities of any series are issued, the Company
will cause definitive Securities of such series to be prepared without
unreasonable delay. After the preparation of definitive Securities, the
temporary Securities of such series shall be exchangeable for definitive
Securities of such series upon surrender of the temporary Securities of such
series at the office or agency of the Company designated for such purpose
pursuant to Section 1002, without charge to the Holder. Upon surrender for
cancelation of any one or more temporary Securities the Company shall execute
and the Trustee shall authenticate and deliver in exchange therefor a like
principal amount of definitive Securities of such series of authorized
denominations and of like tenor and terms. Until so exchanged, the temporary
Securities of such series shall in all respects be entitled to the same
benefits under this Indenture as definitive Securities of such series.
SECTION 305. Registration, Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trust
Office of the Trustee a register (the register maintained in such office and
in any other office or agency designated pursuant to Section 1002 (being
herein sometimes referred to as the "Security Register") in which, subject to
such reasonable regulations as it may prescribe, the Company shall provide for
the registration of Securities, or of Securities of a particular series, and
for transfers of Securities or of Securities of such series. Any such register
shall be in written form or any other form capable of being converted into
written form within a reasonable time. At all reasonable times the information
contained in such register or registers shall be available for inspection by
the Trustee. The Trustee is hereby initially appointed as security registrar
(the "Security Registrar") for the purpose of registering Securities and
transfers of Securities as herein provided. The Company may at any time and
from time to time authorize any Person to act as Security Register in place of
the Trustee with respect to any series of Securities issued under this
Indenture.
Subject to Section 204, upon surrender for transfer of any
Security of any series, upon surrender for registration of transfer of any
Security at the office or agency of the Company designated pursuant to Section
1002, the Company shall execute, and the Trustee shall authenticate and
deliver, in the name of the designated transferee or transferees, one or more
new Securities of such series of any authorized denomination or denominations
of a like aggregate principal amount and Stated Maturity and of like tenor and
terms.
Subject to Section 204, at the option of the Holder, Securities
of any series may be exchanged for other Securities of such series of any
authorized denominations and of a like aggregate principal amount and Stated
Maturity and of like tenor and terms, upon surrender of the Securities to be
exchanged at such office or agency. Whenever any Securities are so surrendered
for exchange, the Company shall execute, and the Trustee shall authenticate
and deliver, the Securities that the Holder making the exchange is entitled to
receive.
All Securities issued upon any registration of transfer or
exchange of Securities shall be the valid obligations of the Company,
evidencing the same debt, and
<PAGE>
entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company or the Security
Registrar) be duly endorsed, or be accompanied by a written instrument of
transfer in the form attached to the Security or otherwise satisfactory to the
Company and the Security Registrar, duly executed, by the Holder thereof or
his attorney duly authorized in writing.
Unless otherwise provided in the Security to be transferred or
exchanged, no service charge shall be made for any registration of transfer or
exchange or redemption of Securities, but the Company may (unless otherwise
provided in such Security) require payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in connection with any
registration of transfer or exchange of Securities, other than exchanges
pursuant to Section 304, 906 or 1107 not involving any transfer.
The Company shall not be required (i) to issue, register the
transfer of or exchange any Security of any series during a period beginning
at the opening of business 15 days before the day of the mailing of a notice
of redemption of Securities of such series selected for redemption under
Section 1103 and ending at the close of business on the day of such mailing of
the relevant notice of redemption, or (ii) to register the transfer of or
exchange any Security so selected for redemption in whole or in part, except
the unredeemed portion of any Security being redeemed in part.
None of the Company, the Trustee, any agent of the Trustee, any
Paying Agent or the Security Registrar will have any responsibility or
liability for any aspect of the records relating to or payments made on
account of beneficial ownership interests of a Global Security or for
maintaining, supervising or reviewing any records relating to such beneficial
ownership interests.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.
If (i) any mutilated Security is surrendered to the Trustee, or
(ii) the Company and the Trustee receive evidence to their satisfaction of the
destruction, loss or theft of any Security, and there is delivered to the
Company and the Trustee such security or indemnity as may be required by them
to save each of them harmless, then, in the absence of notice to the Company
or the Trustee that such Security has been acquired by a bona fide purchaser,
the Company shall execute and upon Company Order the Trustee shall
authenticate and deliver, in exchange for any such mutilated Security or in
lieu of any such destroyed, lost or stolen Security, a replacement Security of
like tenor, series, Stated Maturity and principal amount, bearing a number not
contemporaneously Outstanding.
In case any such mutilated, destroyed, lost or stolen Security
has become or is about to become due and payable, the Company in its
discretion may, instead of issuing a replacement Security, pay such Security.
Upon the issuance of any replacement Security under this
Section, the Company may require the payment of a sum sufficient to cover any
tax or other
<PAGE>
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every replacement Security issued pursuant to this Section in
lieu of any destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company, whether or not the
destroyed, lost or stolen Security shall be at any time enforceable by anyone,
and shall be entitled to all benefits of this Indenture equally and
proportionately with any and all other Securities of the same series duly
issued hereunder.
The provisions of this Section are exclusive and shall preclude
(to the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Securities.
SECTION 307. Payment of Interest; Interest Rights Preserved.
Unless otherwise provided with respect to such Security
pursuant to Section 301, interest on any Security which is payable, and is
punctually paid or duly provided for, on any Interest Payment Date shall be
paid to the Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest at the office or agency of the Company maintained for such
purpose pursuant to Section 1002; provided, however, that each installment of
interest may at the Company's option be paid by (i) mailing a check for such
interest, payable to or upon the written order of the Person entitled thereto
pursuant to Section 308, to the address of such Person as it appears in the
Security Register or (ii) transfer to an account located in the United States
maintained by the payee.
Any interest on any Security that is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date shall
forthwith cease to be payable to the Holder on the Regular Record Date by
virtue of having been such Holder, and such defaulted interest and (to the
extent lawful) interest on such defaulted interest at the rate borne by the
Securities (such defaulted interest and interest thereon herein collectively
called "Defaulted Interest") may be paid by the Company, at its election in
each case, as provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names any such Securities (or their
respective Predecessor Securities) are registered at the close of
business on a Special Record Date for the payment of such Defaulted
Interest, which shall be fixed in the following manner: The Company
shall notify the Trustee in writing of the amount of Defaulted
Interest proposed to be paid on each such Security and the date of
the proposed payment, and at the same time the Company shall deposit
with the Trustee an amount of money equal to the aggregate amount
proposed to be paid in respect of such Defaulted Interest or shall
make arrangements reasonably satisfactory to the Trustee for such
deposit prior to the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the Persons
entitled to such Defaulted Interest as in this clause (1) provided.
Thereupon the Trustee shall fix a Special Record Date for the
payment of such Defaulted Interest which shall be not more than 15
days and not less than 10 days prior to the date of the proposed
payment and not less than 10 days after the receipt by the Trustee
of the notice of the proposed payment. The Trustee shall promptly
notify the Company of such
<PAGE>
Special Record Date and, in the name and at the expense of the
Company, shall cause notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor to be given
in the manner provided for in Section 106, not less than 10 days
prior to such Special Record Date notice of the proposed payment of
such Defaulted Interest and the Special Record Date therefor having
been so given, such Defaulted Interest shall be paid to the Persons
in whose names such Securities (or their respective Predecessor
Securities) are registered at the close of business on such Special
Record Date and shall no longer be payable pursuant to the following
clause (2).
(2) The Company may make payment of any Defaulted Interest in
any other lawful manner not inconsistent with the requirements of
any securities exchange on which such Securities may be listed, and
upon such notice as may be required by such exchange, if, after
notice given by the Company to the Trustee of the proposed payment
pursuant to this clause, such manner of payment shall be deemed
practicable by the Trustee.
If any installment of interest the Stated Maturity of which is
on or prior to the Redemption Date for any Security called for redemption
pursuant to Article Eleven is not paid or duly provided for on or prior to the
Redemption Date in accordance with the foregoing provisions of this Section,
such interest shall be payable as part of the Redemption Price of such
Securities.
Subject to the foregoing provisions of this Section, each
Security delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Security shall carry the rights to
interest accrued and unpaid, and to accrue, that were carried by such other
Security.
SECTION 308. Persons Deemed Owners.
Prior to and at the time of the due presentment of a Security
for registration of transfer, the Company, the Trustee and any agent of the
Company or the Trustee may treat the Person in whose name any Security is
registered in the Security Register as the owner of such Security for the
purpose of receiving payment of principal of (and premium, if any), and
(subject to Section 307) interest on such Security and for all other purposes
whatsoever, whether or not such Security be overdue, and none of the Company,
the Trustee or any agent of the Company or the Trustee shall be affected by
notice to the contrary.
SECTION 309. Cancelation.
All Securities surrendered for payment, redemption,
registration of transfer, conversion or exchange or credit against a sinking
fund shall, if surrendered to any Person other than the Trustee, be delivered
to the Trustee and shall be promptly canceled by it. The Company may at any
time deliver to the Trustee for cancelation any Securities previously
authenticated and delivered hereunder that the Company may have acquired in
any manner whatsoever, and may deliver to the Trustee (or to any other Person
for delivery to the Trustees) for cancelation any Securities previously
authenticated hereunder that the Company has not issued and sold, and all
Securities so delivered shall be promptly canceled by the Trustee. No Security
shall be authenticated in lieu of or in exchange for any Securities canceled
as provided in this Section, except as
<PAGE>
expressly permitted by this Indenture. All canceled Securities held by the
Trustee shall be disposed of by the Trustee in accordance with its customary
procedures and certification of their disposal delivered to the Company unless
by Company Order the Company shall direct that canceled Securities be returned
to it. The Trustee shall provide the Company with a list of all Securities
that have been canceled from time to time as requested by the Company.
SECTION 310. Computation of Interest.
Unless otherwise provided as contemplated in Section 301,
interest on the Securities shall be computed on the basis of a 360-day year of
twelve 30-day months.
SECTION 311. Medium-term Securities.
Notwithstanding any contrary provision herein, if all
Securities of a series are not to be originally issued at one time, it shall
not be necessary for the Company to deliver to the Trustee an Officers'
Certificate, Board Resolution, supplemental indenture, Opinion of Counsel or
Company Request otherwise required pursuant to Sections 202, 301 and 303 at or
prior to the time of authentication of each Security of such series if such
documents are delivered to the Trustee or its agent at or prior to the
authentication upon original issuance of the first Security of such series to
be issued; provided that any subsequent request by the Company to the Trustee
to authenticate Securities of such series upon original issuance shall
constitute a representation and warranty by the Company that as of the date of
such request, the statements made in the Officers' Certificate delivered
pursuant to Section 102 shall be true and correct as if made on such date.
An Officers' Certificate, supplemental indenture or Board
Resolution delivered by the Company to the Trustee in the circumstances set
forth in the preceding paragraph may provide that Securities which are the
subject thereof will be authenticated and delivered by the Trustee or its
agent on original issue from time to time upon the telephonic or written order
of persons designated in such Officers' Certificate, Board Resolution or
supplemental indenture (any such telephonic instructions to be confirmed
promptly in writing by such persons) and that such persons are authorized to
determine, consistent with such Officers' Certificate, supplemental indenture
or Board Resolution, such terms and conditions of said Securities as are
specified in such Officers' Certificate, supplemental indenture or Board
Resolution.
SECTION 312. CUSIP Numbers.
The Company in issuing the Securities may use "CUSIP" numbers
(if then generally in use), and, if so, the Trustee shall use "CUSIP" numbers
in notices of redemption as a convenience to Holders; provided that any such
notice may state that no representation is made as to the correctness of such
numbers either as printed on the Securities or as contained in any notice of a
redemption and that reliance may be placed only on the other identification
numbers printed on the Securities, and any such redemption shall not be
affected by any defect in or omission of such numbers. The Company will
promptly notify the Trustee of any change in the "CUSIP" numbers.
<PAGE>
SECTION 313. Global Securities.
(a) Each Global Security authenticated under this Indenture
shall be registered in the name of the Depositary designated by the
Company for such Global Security or a nominee thereof and delivered
to such Depositary or a nominee thereof or custodian therefor, and
each such Global Security shall constitute a single Security for all
purposes of this Indenture.
(b) Notwithstanding any other provision of this Indenture, no
Global Security may be exchanged in whole or in part for Securities
registered, and no transfer of a Global Security in whole or in part
may be registered, in the name of any Person other than the
Depositary for such Global Security or a nominee thereof unless (i)
such Depositary (A) has notified the Company that it is unwilling or
unable to continue as Depositary for such Global Security or (B) has
ceased to be a clearing agency registered as such under the Exchange
Act or announces an intention permanently to cease business or does
in fact do so or (ii) there shall have occurred and be continuing an
Event of Default with respect to such Global Security.
(c) If any Global Security is to be exchanged for other
Securities or canceled in whole, it shall be surrendered by or on
behalf of the Depositary or its nominee to the Trustee, as Security
Registrar, for exchange or cancelation, as provided in this Article
Three. If any Global Security is to be exchanged for other
Securities or canceled in part, or if another Security is to be
exchanged in whole or in part for a beneficial interest in any
Global Security, in each case, as provided in Section 305, then
either (i) such Global Security shall be so surrendered for exchange
or cancelation, as provided in this Article Three or (ii) the
principal amount thereof shall be reduced or increased by an amount
equal to the portion thereof to be so exchanged or canceled, or
equal to the principal amount of such other Security to be so
exchanged for a beneficial interest therein, as the case may be, by
means of an appropriate adjustment made on the records of the
Trustee, as Security Registrar, whereupon the Trustee, in accordance
with the applicable procedures, shall instruct the Depositary or its
authorized representative to make a corresponding adjustment to its
records. Upon any such surrender or adjustment of a Global Security,
the Trustee shall, subject to Section 305 and as otherwise provided
in this Article Three, authenticate and deliver any Securities
issuable in exchange for such Global Security (or any portion
thereof) to or upon the order of, and registered in such names as
may be directed by, the Depositary or its authorized representative.
Upon the request of the Trustee in connection with the occurrence of
any of the events specified in the preceding paragraph, the Company
shall promptly make available to the Trustee a reasonable supply of
Securities that are not in the form of Global Securities. The
Trustee shall be entitled to rely upon any order, direction or
request of the Depositary or its authorized representative which is
given or made pursuant to this Article Three if such order,
direction or request is given or made in accordance with the
applicable procedures.
(d) Every Security authenticated and delivered upon
registration of transfer of, or in exchange for or in lieu of, a
Global Security or any portion thereof, whether pursuant to this
Article Three or otherwise, shall be authenticated and delivered in
the form of, and shall be, a registered Global
<PAGE>
Security, unless such Security is registered in the name of a Person
other than the Depositary for such Global Security or a nominee
thereof, in which case such Registered Security shall be
authenticated and delivered in definitive, fully registered form,
without interest coupons.
(e) The Depositary or its nominee, as registered owner of a
Global Security, shall be the Holder of such Global Security for all
purposes under the Indenture and the Registered Securities, and
owners of beneficial interests in a Global Security shall hold such
interests pursuant to the applicable procedures. Accordingly, any
such owner's beneficial interest in a Global Security will be shown
only on, and the transfer of such interest shall be effected only
through, records maintained by the Depositary or its nominee or its
agent members and such owners of beneficial interests in a Global
Security will not be considered the owners or holders thereof.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of
further effect (except as to surviving rights of registration of transfer or
exchange of Securities expressly provided for herein or pursuant hereto) and
the Trustee, on demand of and at the expense of the Company, shall execute
proper instruments acknowledging satisfaction and discharge of this Indenture
when
(1) either
(a) all Securities theretofore authenticated and delivered
(other than (i) Securities that have been destroyed, lost or
stolen and that have been replaced or paid as provided in
Section 306 and (ii) Securities for whose payment money has
theretofore been deposited in trust with the Trustee or any
Paying Agent or segregated and held in trust by the Company and
thereafter repaid to the Company or discharged from such trust,
as provided in Section 1003) have been delivered to the Trustee
for cancelation; or
(b) all such Securities not theretofore delivered to the
Trustee for cancelation
(i) have become due and payable, or
(ii) will become due and payable at their Stated
Maturity within one year, or
(iii)are to be called for redemption within one year
under arrangements satisfactory to the Trustee for the
giving of notice of redemption by the Trustee in the name,
and at the expense, of the Company,
<PAGE>
and the Company, in the case of (i), (ii) or (iii) above,
has irrevocably deposited or caused to be deposited with
the Trustee as trust funds in trust for such purpose
United States dollars (or another currency if applicable)
in an amount sufficient to pay and discharge the entire
indebtedness on such Securities not theretofore delivered
to the Trustee for cancelation, for principal (and
premium, if any) and interest to the date of such deposit
(in the case of Securities that have become due and
payable) or to the Stated Maturity or Redemption Date, as
the case may be;
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all
conditions precedent herein provided for relating to the
satisfaction and discharge of this Indenture have been complied
with. (Such Opinion of Counsel may, as to all matters of fact, rely
on, among other things, such Officers' Certificate.)
Notwithstanding the satisfaction and discharge of this
Indenture, the obligations of the Company to the Trustee under Section 607
and, if money shall have been deposited with the Trustee pursuant to subclause
(b) of clause (1) of this Section, the obligations of the Trustee under
Section 402 and the second to the last paragraph of Section 1003 shall
survive.
SECTION 402. Application of Trust Money.
Subject to the provisions of the second to the last paragraph
of Section 1003, all money deposited with the Trustee pursuant to Section 401
shall be held in trust and applied by it, in accordance with the provisions of
the Securities and this Indenture, to the payment, either directly or through
any Paying Agent (including the Company acting as its own Paying Agent) as the
Trustee may determine, to the Persons entitled thereto, of the principal (and
premium, if any) and interest for whose payment such money has been deposited
with the Trustee; but such money need not be segregated from other funds
except to the extent required by law.
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default.
"Event of Default", wherever used herein, means with respect to
any series of Securities any one of the following events (whatever the reason
for such Event of Default and whether it shall be voluntary or involuntary or
be effected by operation of law or pursuant to any judgment, decree or order
of any court or any order, rule or regulation of any administrative or
governmental body), unless such event is either
<PAGE>
inapplicable to a particular series or it is specifically deleted or modified
in the supplemental indenture creating such series of Securities or in the
form of Security for such series:
(a) default in the payment of any interest upon any Security of
that series when it becomes due and payable, and continuance of such
default for a period of 30 days;
(b) default in the payment of the principal of (or premium, if
any, on) any Security at its Stated Maturity, upon repurchase,
acceleration, optional redemption, required repurchase or otherwise,
or the failure to make an offer to purchase as therein required;
(c) default in the payment of any sinking or purchase fund or
analogous obligation when the same becomes due by the terms of the
Securities of such series; or
(d) failure by the Company to perform or comply with the
provisions of Article Eight of this Indenture;
(e) default in the performance, or breach, of any covenant or
warranty of the Company under this Indenture in respect of the
Securities of such series other than a covenant or warranty in
respect of the Securities of such series, a default in whose
performance or whose breach is specifically dealt with in (a), (b),
(c) or (d) above) and continuance of such default or breach, for a
period of 90 days after specified written notice thereof has been
given to the Company by the Trustee or to the Company and the
Trustee by the Holders of at least 25% of the aggregate principal
amount of the Outstanding Securities of such series;
(f) the entry by a court having jurisdiction in the premises of
(i) a decree or order for relief in respect of the Company in an
involuntary case or proceeding under U.S. bankruptcy laws, as now or
hereafter constituted, or any other applicable Federal, State, or
foreign bankruptcy, insolvency, or other similar law or (ii) a
decree or order adjudging the Company bankrupt or insolvent, or
approving as properly filed a petition seeking reorganization,
arrangement, adjustment or composition of or in respect of the
Company under U.S. bankruptcy laws, as now or hereafter constituted,
or any other applicable Federal, State, or foreign bankruptcy,
insolvency, or similar law, or appointing a custodian, receiver,
liquidator, assignee, trustee, sequestrator or other similar
official of the Company or of any substantial part of the property
or assets of the Company or ordering the winding up or liquidation
of the affairs of the Company and the continuance of any such decree
or order for relief or any such other decree or order unstayed and
in effect for a period of 90 consecutive days;
(g) (i) the commencement by the Company of a voluntary case or
proceeding under U.S. bankruptcy laws, as now or hereafter
constituted, or any other applicable Federal, State, or foreign
bankruptcy, insolvency or other similar law or of any other case or
proceeding to be adjudicated a bankrupt or insolvent, or (ii) the
consent by the Company to the entry of a decree or order for relief
in respect of the Company in an involuntary case or proceeding under
U.S. bankruptcy laws, as now or hereafter constituted, or any other
applicable Federal,
<PAGE>
State or foreign bankruptcy, insolvency, or other similar law or to
the commencement of any bankruptcy or insolvency case or proceeding
against the Company, or (iii) the filing by the Company of a
petition or answer or consent seeking reorganization or relief under
U.S. bankruptcy laws, as now or hereafter constituted, or any other
applicable Federal, State, or foreign bankruptcy, insolvency or
other similar law, or (iv) the consent by the Company to the filing
of such petition or to the appointment of or taking possession by a
custodian, receiver, liquidator, assignee, trustee, sequestrator or
similar official of the Company or of any substantial part of the
property or assets of the Company, or the making by the Company of
an assignment for the benefit of creditors, or (v) the admission by
the Company in writing of its inability to pay its debts generally
as they become due, or (vi) the taking of corporate action by the
Company in furtherance of any such action; or
(h) any other Event of Default provided in the supplemental
indenture under which such series of Securities is issued or in the
form of Security for such series.
SECTION 502. Acceleration of Maturity; Rescission and
Annulment.
If an Event of Default (other than an Event of Default
specified in Section 501(f) or 501(g)) occurs and is continuing, then and in
every such case the Trustee or the Holders of not less than 25% in principal
amount of the Outstanding Securities may declare the principal amount of all
the Outstanding Securities and any accrued and unpaid interest on all such
Securities to be due and payable immediately, by a notice in writing to the
Company (and to the Trustee if given by Holders), and upon any such
declaration such principal amount and any accrued and unpaid interest on all
such Securities shall become immediately due and payable. If an Event of
Default specified in Section 501(f) or 501(g) occurs and is continuing, then
the principal amount of all the Securities shall ipso facto become and be
immediately due and payable without any declaration or other act on the part
of the Trustee or any Holder.
At any time after such a declaration of acceleration has been
made with respect to the Securities of any series and before a judgment or
decree for payment of the money due has been obtained by the Trustee as
hereinafter provided in this Article, the Holders of a majority in principal
amount of the Outstanding Securities of such series, by written notice to the
Company and the Trustee, may rescind and annul such declaration and its
consequences if
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue interest on the Securities of such series,
(B) all unpaid principal of (and premium, if any, on) any
Securities of such series that have become due otherwise than
by such declaration of acceleration, and interest thereon at
the rate or rates prescribed therefor by the terms of the
Securities of such series, to the extent that payment of such
interest is lawful,
<PAGE>
(C) interest on overdue interest at the rate or rates
prescribed therefor by the terms of the Securities of such
series to the extent that payment of such interest is lawful,
and
(D) all sums paid or advanced by the Trustee hereunder and
the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel; and
(2) all Events of Default with respect to such series of
Securities, other than the nonpayment of the principal of the
Securities of such series that have become due solely by such
declaration of acceleration, have been cured or waived as provided
in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 503. Collection of Debt and Suits for Enforcement by
Trustee.
The Company covenants that if an Event of Default specified in
Section 501(a), (b) or (c) occurs, the Company will, upon demand of the
Trustee, pay to the Trustee for the benefit of the Holders of such Securities
(or the Holders of any series in the case of 501(c)), the whole amount then
due and payable on such Securities (or on the Securities of any such series in
the case of 501(c)) for principal (and premium, if any) and interest, and
interest on any overdue principal (and premium, if any) and, to the extent
that payment of such interest shall be legally enforceable, upon any overdue
installment of interest, at the such rate or rates prescribed therefor by the
terms of any such Security (or of Securities of any such series in the case of
501(c)) by the Securities, and, in addition thereto, such further amount as
shall be sufficient to cover the costs and expenses of collection, including
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such
demand, the Trustee, in its own name as trustee of an express trust, may
institute a judicial proceeding for the collection of the sums so due and
unpaid, may prosecute such proceeding to judgment or final decree and may
enforce the same against the Company or any other obligor upon the Securities
and collect the moneys adjudged or decreed to be payable in the manner
provided by law out of the property of the Company or any other obligor upon
the Securities, wherever situated.
If an Event of Default with respect to any series of Securities
occurs and is continuing, the Trustee may in its discretion proceed to protect
and enforce its rights and the rights of the Holders of Securities of such
series by such appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.
<PAGE>
SECTION 504. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment, composition
or other similar judicial proceeding relative to the Company or any other
obligor upon the Securities or the property of the Company or of such other
obligor or their creditors, the Trustee (irrespective of whether the principal
of the Securities shall then be due and payable as therein expressed or by
declaration or otherwise and irrespective of whether the Trustee shall have
made any demand on the Company for the payment of overdue principal, premium,
if any, or interest) shall be entitled and empowered, by intervention in such
proceeding or otherwise,
(i) to file and prove a claim for the whole amount of principal
(and premium, if any) and interest owing and unpaid in respect of
the Securities and to file such other papers or documents as may be
necessary or advisable in order to have the claims of the Trustee
(including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel)
and of the Holders allowed in such judicial proceeding, and
(ii) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the
same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
similar official in any such judicial proceeding is hereby authorized by each
Holder to make such payments to the Trustee and, in the event that the Trustee
shall consent to the making of such payments directly to the Holders, to pay
the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any
other amounts due the Trustee under Section 607.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or composition affecting
the Securities or the rights of any Holder thereof, or to authorize the
Trustee to vote in respect of the claim of any Holder in any such proceeding.
SECTION 505. Trustee May Enforce Claims Without Possession of
Securities.
All rights of action and claims under this Indenture or the
Securities of any series may be prosecuted and enforced by the Trustee without
the possession of any of the Securities of such series or the production
thereof in any proceeding relating thereto, and any such proceeding instituted
by the Trustee shall be brought in its own name and as trustee of an express
trust, and any recovery of judgment shall, after provision for the payment of
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, be for the ratable benefit of the Holders of
the Securities of the series in respect of which such judgment has been
recovered.
<PAGE>
SECTION 506. Application of Money Collected.
Any money collected by the Trustee with respect to a series of
Securities pursuant to this Article shall be applied in the following order,
at the date or dates fixed by the Trustee and, in case of the distribution of
such money on account of principal (or premium, if any) or interest, upon
presentation of the Securities of such series and the notation thereon of the
payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under
Section 607;
SECOND: To the payment of the amounts then due and unpaid upon
the Securities of that series for principal of (and premium, if any)
and interest, in respect of which or for the benefit of which such
money has been collected, ratably, without preference or priority of
any kind, according to the amounts due and payable on such
Securities for principal (and premium, if any) and interest,
respectively; and
THIRD: The balance, if any, to the Company.
SECTION 507. Limitation on Suits.
No Holder of any Securities of any series shall have any right
to institute any proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless
(1) such Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to Securities
of such series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of such series have made written request to
the Trustee to institute proceedings in respect of such Event of
Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to
be incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the Holders
of a majority or more in principal amount of the Outstanding
Securities of such series;
it being understood and intended that no one or more Holders of Securities of
such series shall have any right in any manner whatever by virtue of, or by
availing of, any provision of this Indenture to affect, disturb or prejudice
the rights of any other Holders of Securities of such series, or to obtain or
to seek to obtain priority or preference over any other Holders or to enforce
any right under this Indenture, except in the manner herein
<PAGE>
provided and for the equal and ratable benefit of all the Holders of all
Securities of such series.
SECTION 508. Unconditional Right of Holders to Receive
Principal, Premium and Interest.
Notwithstanding any other provision in this Indenture, the
Holder of any Security shall have the right, which is absolute and
unconditional, to receive payment, as provided herein (including, if
applicable, Article Twelve) and in such Security of the principal of (and
premium, if any) and (subject to Section 307) interest on such Security on the
respective Stated Maturities expressed in such Security (or, in the case of
redemption, on the Redemption Date) and to institute suit for the enforcement
of any such payment, and such rights shall not be impaired without the consent
of such Holder.
SECTION 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders
shall be restored severally and respectively to their former positions
hereunder and thereafter all rights and remedies of the Trustee and the
Holders shall continue as though no such proceeding had been instituted.
SECTION 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities in the last
paragraph of Section 306, no right or remedy herein conferred upon or reserved
to the Trustee or to the Holders is intended to be exclusive of any other
right or remedy, and every right and remedy shall, to the extent permitted by
law, be cumulative and in addition to every other right and remedy given
hereunder or now or hereafter existing at law or in equity or otherwise. The
assertion or employment of any right or remedy hereunder, or otherwise, shall
not prevent the concurrent assertion or employment of any other appropriate
right or remedy.
SECTION 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any
Security to exercise any right or remedy accruing upon any Event of Default
shall impair any such right or remedy or constitute a waiver of any such Event
of Default or an acquiescence therein. Every right and remedy given by this
Article or by law to the Trustee or to the Holders may be exercised from time
to time, and as often as may be deemed expedient, by the Trustee or by the
Holders, as the case may be.
SECTION 512. Control by Holders.
The Holders of not less than a majority in principal amount of
the Outstanding Securities shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee, provided that
<PAGE>
(1) such direction shall not be in conflict with any rule of
law or with this Indenture or any Security,
(2) the Trustee may take any other action deemed proper by the
Trustee that is not inconsistent with such direction, and
(3) the Trustee need not take any action that might involve it
in personal liability or be unjustly prejudicial to the Holders not
consenting.
SECTION 513. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of
the Outstanding Securities of any series may on behalf of the Holders of all
the Securities of such series waive (including by way of consents obtained
with a purchase of, or a tender or exchange offer for, Securities) any past
default hereunder and its consequences, except a default
(1) in respect of the payment of the principal of (or premium,
if any) or interest on any Security of such series, or in the
payment of any sinking or purchase fund or analogous obligation with
respect to the Securities of such series, or
(2) in respect of a covenant or provision hereof that under
Article Nine cannot be modified or amended without the consent of
the Holder of each Outstanding Security of such series.
Upon any such waiver, such default shall cease to exist, and
any Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or Event of Default or impair any right consequent
thereon.
SECTION 514. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do
so) that it will not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay or extension
law wherever enacted, now or at any time hereafter in force, that may affect
the covenants or the performance of this Indenture; and the Company (to the
extent that it may lawfully do so) hereby expressly waives all benefit or
advantage of any such law and covenants that it will not hinder, delay or
impede the execution of any power herein granted to the Trustee, but will
suffer and permit the execution of every such power as though no such law had
been enacted.
SECTION 515. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any
Security by such Holder's acceptance thereof shall be deemed to have agreed,
that any court may in its discretion require in any suit for the enforcement
of any right or remedy under this Indenture, or in any suit against the
Trustee for any action taken, suffered or omitted by it as Trustee, the filing
by any party litigant in such suit of an undertaking to pay the costs of such
suit, and that such court may in its discretion assess reasonable costs,
including reasonable attorneys' fees, against any party litigant in such suit,
having due
<PAGE>
regard to the merits and good faith of the claims or defenses made by such
party litigant; but the provisions of this Section shall not apply to any suit
instituted by the Trustee, to any suit instituted by any Holder, or group of
Holders, holding in the aggregate more than 10% in principal amount of the
Outstanding Securities of any series to which the suit relates, or to any suit
instituted by any Holder for the enforcement of the payment of the principal
of, premium, if any, or interest on any Security on or after the respective
Stated Maturity expressed in such Security.
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities.
(1) Except during the continuance of an Event of Default with
respect to any series of Securities,
(a) the Trustee undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture with respect
to the Securities of such series, and no implied covenants or
obligations shall be read into this Indenture against the Trustee;
and
(b) in the absence of bad faith on its part, the Trustee may,
with respect to Securities of such series, rely conclusively, as to
the truth of the statements and the correctness of the opinions
expressed therein, upon certificates or opinions furnished to the
Trustee and conforming to the requirements of this Indenture; but in
the case of any such certificates or opinions that by any provision
hereof specifically are required to be furnished to the Trustee, the
Trustee shall be under a duty to examine the same to determine
whether or not they conform to the requirements of this Indenture.
(2) If an Event of Default with respect to any series of
Securities has occurred and is continuing, the Trustee shall exercise with
respect to the Securities of such series such of the rights and powers vested
in it by this Indenture, and use the same degree of care and skill in their
exercise as a prudent person would exercise or use under the circumstances in
the conduct of such person's own affairs.
(3) No provision of this Indenture shall be construed to
relieve the Trustee from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct, except that
(a) this Subsection shall not be construed to limit the effect
of Subsection (1) of this Section;
(b) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it shall be
proved that the Trustee was negligent in ascertaining the pertinent
facts;
(c) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with
the direction of the
<PAGE>
Holders of a majority in principal amount of the Outstanding
Securities of any series relating to the time, method and place of
conducting any proceeding for any remedy available to the Trustee,
or exercising any trust or power conferred upon the Trustee, under
this Indenture with respect to the Securities of such series; and
(d) the Trustee shall not be required to expend or risk its own
funds or otherwise incur any financial liability in the performance
of any of its duties hereunder, or in the exercise of any of its
rights or powers, if it shall have reasonable grounds for believing
that repayment of such funds or adequate indemnity against such risk
or liability is not reasonably assured to it.
SECTION 602. Notice of Defaults.
Within 90 days after the occurrence of any Default hereunder,
the Trustee shall transmit in the manner and to the extent provided in TIA
Section 313(c), notice of such Default hereunder known to the Trustee, unless
such Default shall have been cured or waived; provided, however, that, except
in the case of a Default in the payment of the principal of (or premium, if
any) or interest on any Security of such series or in the payment of any
sinking or purchase fund installment or analogous obligation with respect to
Securities of such series, the Trustee shall be protected in withholding such
notice if and so long as the board of directors, the executive committee or a
trust committee of directors and/or Responsible Officers of the Trustee in
good faith determines that the withholding of such notice is in the interest
of the Holders; and provided further that in the case of any Default of the
character specified in Section 501(e) with respect to Securities of such
series no such notice to Holders of such series shall be given until at least
60 days after the occurrence thereof.
SECTION 603. Certain Rights of Trustee.
Subject to the provisions of TIA Sections 315(a) through
315(d):
(1) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of indebtedness or
other paper or document reasonably believed by it to be genuine and
to have been signed or presented by the proper party or parties;
(2) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company
Order and any resolution of the Board of Directors may be
sufficiently evidenced by a Board Resolution;
(3) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or
established prior to taking, suffering or omitting any action
hereunder, the Trustee (unless other evidence be herein specifically
prescribed) may, in the absence of bad faith on its part, rely upon
an Officers' Certificate;
(4) the Trustee may consult with counsel and the written advice
of such counsel or any Opinion of Counsel shall be full and complete
authorization
<PAGE>
and protection in respect of any action taken, suffered or omitted
by it hereunder in good faith and in reliance thereon;
(5) the Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request
or direction of any of the Holders pursuant to this Indenture,
unless such Holders shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses and liabilities
that might be incurred by it in compliance with such request or
direction;
(6) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document, but the Trustee, in its
discretion, may make such further inquiry or investigation into such
facts or matters as it may see fit; and
(7) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or
attorney (other than an agent or attorney who is an employee of the
Trustee) appointed with due care by it hereunder.
SECTION 604. Trustee Not Responsible for Recitals or Issuance
of Securities.
The recitals contained herein and in the Securities, except for
the Trustee's certificates of authentication, shall be taken as the statements
of the Company, and the Trustee assumes no responsibility for their
correctness. The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Securities, except that the Trustee
represents that it is duly authorized to execute and deliver this Indenture,
authenticate the Securities and perform its obligations hereunder and that the
statements made by it in a Statement of Eligibility and Qualification on Form
T-1 supplied to the Company are true and accurate, subject to the
qualifications set forth therein. The Trustee shall not be accountable for the
use or application by the Company of Securities or the proceeds thereof.
SECTION 605. May Hold Securities.
The Trustee, any Paying Agent, any Security Registrar or any
other agent of the Company or of the Trustee, in its individual or any other
capacity, may become the owner or pledgee of Securities and, subject to TIA
Sections 310(b) and 311, may otherwise deal with the Company with the same
rights it would have if it were not Trustee, Paying Agent, Security Registrar
or such other agent.
SECTION 606. Money Held in Trust.
Money held by the Trustee in trust hereunder shall, until used
or applied as herein provided, be held in trust for the purposes for which it
was received, but need not be segregated from other funds except to the extent
required by law. The Trustee
<PAGE>
shall be under no liability for interest on any money received by it hereunder
except as otherwise agreed with the Company.
SECTION 607. Compensation and Reimbursement.
The Company agrees:
(1) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in regard
to the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse
the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the
reasonable compensation and the expenses and disbursements of its
agents and counsel), except any such expense, disbursement or
advance as may arise from or be attributable to its negligence or
bad faith; and
(3) to indemnify the Trustee for, and to hold it harmless
against, any loss, liability or expense incurred without negligence
or bad faith on its part or on the part of its directors, officers,
employees and agents, arising out of or in connection with the
acceptance or administration of this trust, including the costs and
expenses of defending itself, and of indemnifying its directors,
officers, employees and agents, against any claim or liability in
connection with the exercise or performance of any of the Trustee's
powers or duties hereunder.
The Trustee shall notify the Company promptly of any claim
asserted against the Trustee for which it may seek indemnity. The obligations
of the Company under this Section to compensate the Trustee, to pay or
reimburse the Trustee for expenses, disbursements and advances and to
indemnify and hold harmless the Trustee shall constitute additional
indebtedness hereunder and shall survive the satisfaction and discharge of
this Indenture. As security for the performance of such obligations of the
Company, the Trustee shall have a claim prior to the Securities upon all
property and funds held or collected by the Trustee as such, except funds held
in trust for the payment of principal of (and premium, if any) or interest on
particular Securities.
When the Trustee incurs expenses or renders services in
connection with an Event of Default specified in Section 501(f) or (g), the
expenses (including the reasonable charges and expenses of its counsel) of and
the compensation for such services are intended to constitute expenses of
administration under any applicable Federal or State bankruptcy, insolvency or
other similar law.
The provisions of this Section shall survive the termination of
this Indenture.
SECTION 608. Disqualification; Conflicting Interests.
The Trustee for the Securities of any series issued hereunder
shall be subject to the provisions of Section 310(b) of the Trust Indenture
Act during the period of time provided for therein. In determining whether the
Trustee has a conflicting
<PAGE>
interest as defined in Section 310(b) of the Trust Indenture Act with respect
to the Securities of any series, there shall be excluded for purposes of the
conflicting interest provisions of such Section 310(b) (i) the Securities of
every other series issued under this Indenture, (ii) every series of
securities issued under the Indenture dated as of , between Teligent,
Inc. and and (iii) every series of
securities issued under the Indenture dated as of , between Teligent,
Inc. and . Nothing herein shall prevent the Trustee from
filing with the Commission the application referred to in the second to last
paragraph of Section 310(b) of the Trust Indenture Act.
SECTION 609. Corporate Trustee Required; Eligibility.
There shall be at all times a Trustee hereunder with respect to
each series of Securities, that shall be eligible to act as Trustee under TIA
Section 310(a)(1) and 310(a)(5) and shall have a combined capital and surplus
of at least $50,000,000. If such corporation publishes reports of condition at
least annually, pursuant to law or to the requirements of Federal, State,
territorial or District of Columbia supervising or examining authority, then
for the purposes of this Section, the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set
forth in its most recent report of condition so published. If at any time the
Trustee with respect to any series of Securities shall cease to be eligible in
accordance with the provisions of this Section, it shall resign immediately in
the manner and with the effect hereinafter specified in this Article.
SECTION 610. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment
of a successor Trustee pursuant to this Article shall become effective until
the acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 611.
(b) The Trustee may resign with respect to any series of
Securities at any time by giving written notice thereof to the Company. If the
instrument of acceptance by a successor Trustee required by Section 611 shall
not have been delivered to the Trustee within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition any court of
competent jurisdiction for the appointment of a successor Trustee.
(c) The Trustee may be removed with respect to any series of
Securities at any time by Act of the Holders of not less than a majority in
principal amount of the Outstanding Securities of that series, delivered to
the Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with the provisions of TIA
Section 310(b) with respect to any series of Securities after
written request therefor by the Company or by any Holder who has
been a bona fide Holder of a Security of that series for at least
six months, or
(2) the Trustee shall cease to be eligible under Section 609
with respect to any series of Securities and shall fail to resign
after written request
<PAGE>
therefor by the Company or by any such Holder who has been a bona
fide Holder of a Security for at least six months, or
(3) the Trustee shall become incapable of acting with respect
to any series of Securities or
(4) the Trustee shall be adjudged a bankrupt or insolvent or a
receiver of the Trustee or of its property shall be appointed or any
public officer shall take charge or control of the Trustee or of its
property or affairs for the purpose of rehabilitation, conservation
or liquidation,
then, in any such case, (i) the Company, by a Board Resolution, may remove the
Trustee, with respect to the series, or in the case of clause (4), with
respect to all series or (ii) subject to TIA Section 315(e), any Holder who
has been a bona fide Holder of a Security of such series for at least six
months may, on behalf of himself and all others similarly situated, petition
any court of competent jurisdiction for the removal of the Trustee and the
appointment of a successor Trustee with respect to the series, or, in the case
of clause (4), with respect to all series.
(e) If the Trustee shall resign, be removed or become incapable
of acting with respect to any series of Securities, or if a vacancy shall
occur in the office of Trustee with respect to any series of Securities for
any cause, the Company, by a Board Resolution, shall promptly appoint a
successor Trustee for that series of Securities. If, within one year after
such resignation, removal or incapability, or the occurrence of such vacancy,
a successor Trustee with respect to such series of Securities shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company and the
retiring Trustee, the successor Trustee so appointed shall, forthwith upon its
acceptance of such appointment, become the successor Trustee with respect to
such series and supersede the successor Trustee appointed by the Company. If
no successor Trustee shall have been so appointed by the Company or the
Holders and accepted appointment in the manner hereinafter provided, any
Holder who has been a bona fide Holder of a Security of that series for at
least six months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the appointment of a
successor Trustee.
(f) The Company shall give notice of each resignation and each
removal of the Trustee and each appointment of a successor Trustee to the
Holders of Securities in the manner provided for in Section 106. Each notice
shall include the name of the successor Trustee and the address of its
Corporate Trust Office.
SECTION 611. Acceptance of Appointment by Successor.
Every successor Trustee appointed hereunder shall execute,
acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or
removal of the retiring Trustee shall become effective with respect to any
series as to which it is resigning or being removed as Trustee and such
successor Trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the retiring Trustee;
but, on request of the Company or the successor Trustee, such retiring Trustee
shall, upon payment of its charges, execute and deliver an instrument
transferring to such successor Trustee all the rights, powers and trusts of
the retiring Trustee and shall duly assign,
<PAGE>
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder. Upon reasonable request of any such successor
Trustee, the Company shall execute any and all instruments for more fully and
certainly vesting in and confirming to such successor Trustee all such rights,
powers and trusts.
In case of the appointment hereunder of a successor Trustee
with respect to the Securities of one or more (but not all) series, the
Company, the predecessor Trustee and each successor Trustee with respect to
the Securities of any applicable series shall execute and deliver an indenture
supplemental hereto which shall contain such provisions as shall be deemed
necessary or desirable to confirm that all the rights, powers, trusts and
duties of the predecessor Trustee with respect to the Securities of any series
as to which the predecessor Trustee is not being succeeded shall continue to
be vested in the predecessor Trustee, and shall add to or change any of the
provisions of this Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by more than one
Trustee, it being understood that nothing herein or in such supplemental
indenture shall constitute such Trustees co-trustees of the same trust and
that each such Trustee shall be Trustee of a trust or trusts hereunder
separate and apart from any trust or trusts hereunder administered by any
other such Trustee.
No successor Trustee with respect to any series of Securities
shall accept its appointment unless at the time of such acceptance such
successor Trustee shall be qualified and eligible with respect to that series
under this Article.
SECTION 612. Merger, Conversion, Consolidation or Succession to
Business.
Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Trustee shall be a
party, or any corporation succeeding to all or substantially all of the
corporate trust business of the Trustee, shall be the successor of the Trustee
hereunder, provided such corporation shall be otherwise qualified and eligible
under this Article, without the execution or filing of any paper or any
further act on the part of any of the parties hereto. In case any Securities
shall have been authenticated, but not delivered, by the Trustee then in
office, any successor by merger, conversion or consolidation to such
authenticating Trustee may adopt such authentication and deliver the
Securities so authenticated with the same effect as if such successor Trustee
had itself authenticated such Securities. In case at that time any of the
Securities shall not have been authenticated, any successor Trustee may
authenticate such Securities either in the name of any predecessor hereunder
or in the name of the successor Trustee. In all such cases such certificates
shall have the full force and effect that this Indenture provides for the
certificate of authentication of the Trustee; provided, however, that the
right to adopt the certificate of authentication of any predecessor Trustee or
to authenticate Securities in the name of any predecessor Trustee shall apply
only to its successor or successors by merger, conversion or consolidation.
SECTION 613. Conflicting Interests.
The Trustee shall be subject to and comply with the provisions
of Section 310(b) of the TIA.
<PAGE>
SECTION 614. Preferential Collection of Claims Against Issuers.
The Trustee shall comply with Section 311(a) of the TIA,
excluding any creditor relationship listed in Section 311(b) of the TIA. If
the present or any future Trustee shall resign or be removed, it shall be
subject to Section 311(a) of the TIA to the extent provided therein.
SECTION 615. Appointment of Authenticating Agent.
At any time when any of the Securities remain Outstanding the
Trustee, with the approval of the Company, may appoint an Authenticating Agent
or Agents with respect to one or more series of Securities which shall be
authorized to act on behalf of the Trustee to authenticate Securities of such
series issued upon exchange, registration of transfer or partial redemption
thereof or pursuant to Section 306, and Securities so authenticated shall be
entitled to the benefits of this Indenture and shall be valid and obligatory
for all purposes as if authenticated by the Trustee hereunder. Wherever
reference is made in this Indenture to the authentication and delivery of
Securities by the Trustee or the Trustee's certificate of authentication, such
reference shall be deemed to include authentication and delivery on behalf of
the Trustee by an Authenticating Agent and a certificate of authentication
executed on behalf of the Trustee by an Authenticating Agent. Each
Authenticating Agent shall be acceptable to the Company and shall at all times
be a corporation organized and doing business under the laws of the United
States of America, any State thereof or the District of Columbia, authorized
under such laws to act as an Authenticating Agent, having a combined capital
and surplus of not less than $50,000,000 and, if other than the Company
itself, subject to supervision or examination by Federal or State authority.
If such Authenticating Agent publishes reports of condition at least annually,
pursuant to law or to the requirements of said supervising or examining
authority, then for the purposes of this Section, the combined capital and
surplus of such Authenticating Agent shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time an Authenticating Agent shall cease to be eligible
in accordance with the provisions of this Section, such Authenticating Agent
shall resign immediately in the manner and with the effect specified in this
Section.
Any corporation into which an Authenticating Agent may be
merged or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which such
Authenticating Agent shall be a party, or any corporation succeeding to the
corporate agency or corporate trust business of an Authenticating Agent, shall
continue to be an Authenticating Agent, provided such corporation shall be
otherwise eligible under this Section, without the execution or filing of any
paper or any further act on the part of the Trustee or the Authenticating
Agent.
An Authenticating Agent may resign at any time by giving
written notice thereof to the Trustee and, if other than the Company, to the
Company. The Trustee may at any time terminate the agency of an Authenticating
Agent by giving written notice thereof to such Authenticating Agent and, if
other than the Company, to the Company Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee, with the approval of the Company, may
appoint a successor Authenticating Agent which shall be acceptable to the
Company and shall mail written notice of such appointment by first-class mail,
postage prepaid, to all Holders of
<PAGE>
Securities of the series with respect to which such Authenticating Agent will
serve, as their names and addresses appear in the Security Register. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
The Trustee agrees to pay to each Authenticating Agent (other
than an Authenticating Agent appointed at the request of the Company from time
to time) reasonable compensation for its services under this Section, and the
Trustee shall be entitled to be reimbursed for such payments, subject to the
provisions of Section 607.
If an appointment with respect to one or more series is made
pursuant to this Section, the Securities of such series may have endorsed
thereon, in addition to the Trustee's certificate of authentication, an
alternate certificate of authentication in the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
[ ],
by
-----------------------------------
As Authenticating Agent
Date: by
-----------------------------------
Authorized Signatory
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Disclosure of Names and Addresses of Holders.
Every Holder of Securities, by receiving and holding the same,
agrees with the Company and the Trustee that none of the Company or the
Trustee or any agent of either of them shall be held accountable by reason of
the disclosure of any such information as to the names and addresses of the
Holders in accordance with TIA Section 312, regardless of the source from
which such information was derived, and that the Trustee shall not be held
accountable by reason of mailing any material pursuant to a request under TIA
Section 312(b).
SECTION 702. Reports by Trustee.
Within 60 days after of each year commencing
with the first after the first issuance of Securities, the
Trustee shall transmit to the Holders, in
<PAGE>
the manner and to the extent provided in TIA Section 313(c), a brief
report dated as of such if required by TIA Section 313(a).
SECTION 703. Reports by Company.
The Company shall:
(1) whether or not the Company is subject to Section 13(a) or 15(d) of
the Exchange Act or any successor provision thereto, file with the Commission
the annual reports, quarterly reports and other documents that the Company
would have been required to file with the Commission pursuant to such Section
13(a), 15(d) or any successor provision thereto if the Company were subject
thereto and shall file such documents with the Commission on or prior to the
respective dates (the "Required Filing Dates") by which the Company would have
been required to file them;
(2) whether or not the Company is subject to Section 13(a) or 15(d) of
the Exchange Act or any successor provision thereto, within 15 days of each
Required Filing Date, file with the Trustee copies of the annual reports,
quarterly reports and other documents (without exhibits) that the Company
would have been required to file with the Commission pursuant to Section 13(a)
or 15(d) of the Exchange Act or any successor provisions thereto if the
Company was subject thereto:
(3) file with the Trustee and the Commission, in accordance with rules
and regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to compliance by
the Company with the conditions and covenants of this Indenture as may be
required from time to time by such rules and regulations; and
(4) transmit by mail to all Holders, in the manner and to the extent
provided in TIA Section 313(c), within 15 days after the filing thereof with
the Commission, such summaries of any information, documents and reports
required to be filed by the Company pursuant to paragraphs (1), (2) and (3) of
this Section as may be required by rules and regulations prescribed from time
to time by the Commission.
If the Company is not permitted under the Exchange Act to file
with the Commission such reports and other information referred to in Section
703(1), the Company shall promptly upon written request supply copies of such
documents (without exhibits) to prospective purchasers of the Securities or
their representatives.
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, Etc., Only on Certain
Terms.
<PAGE>
The Company shall not consolidate with or merge into any other
Person or sell, convey, assign, transfer, lease or otherwise dispose of all or
substantially all of its property and assets to any Person, unless:
(a) either (i) the Company shall be the continuing corporation
or (ii) the corporation (if other than the Company) formed by such
consolidation or into which the Company is merged, or the Person
that acquires, by sale, assignment, conveyance, transfer, lease or
disposition, all or substantially all of the property and assets of
the Company and its Subsidiaries taken as a whole (such corporation
or Person, the "Surviving Entity"), shall be a corporation organized
and validly existing under the laws of the United States of America,
any political subdivision thereof or any State thereof or the
District of Columbia, and shall expressly assume, by a supplemental
indenture, the due and punctual payment of the principal of (and
premium, if any) and interest on all the Securities and the
performance of the Company's covenants and obligations under this
Indenture;
(b) immediately before and after giving effect to such
transaction, no Default or Event of Default shall have occurred and
be continuing or would result therefrom; and
(c) the Company or such Person shall have delivered to the
Trustee an Officers' Certificate and an Opinion of Counsel, each
stating that such consolidation, merger, conveyance, transfer or
lease and, if a supplemental indenture is required in connection
with such transaction, such supplemental indenture, comply with this
Article and that all conditions precedent herein provided for
relating to such transaction have been complied with.
Notwithstanding the foregoing, the Company may merge with an
Affiliate incorporated or organized for the sole purpose of reincorporating or
reorganizing the Company in another jurisdiction to realize tax or other
benefits provided such merger meets the requirements of clauses (a), (b) and
(c) of the preceding paragraphs.
Upon any transaction or series of transactions that are of the
type described in, and are effected in accordance with, the foregoing
paragraphs, the Surviving Entity (if other than the Company) shall succeed to,
and be substituted for, and may exercise every right and power of, the Company
under this Indenture and the Securities with the same effect as if such
Surviving Entity had been named as the Company herein; and when a Surviving
Person duly assumes all of the obligations and covenants of the Company
pursuant to this Indenture and the Securities, except in the case of a lease,
the predecessor Person shall be relieved of all such obligations.
SECTION 802. Successor Substituted.
Upon any consolidation of the Company with or merger of the
Company with or into any other corporation or any conveyance, transfer or
lease of the properties and assets of the Company substantially as an entirety
to any Person in accordance with Section 801, the successor Person formed by
such consolidation or into which the Company is merged or to which such
conveyance, transfer or lease is made shall succeed to, and be substituted
for, and may exercise every right and power of, the Company under this
Indenture with the same effect as if such successor Person had been named as
the Company herein, and in the event of any such conveyance or transfer, the
Company
<PAGE>
(which term shall for this purpose mean the Person named as the "Company" in
the first paragraph of this Indenture or any successor Person that shall
theretofore become such in the manner described in Section 801), except in the
case of a lease, shall be discharged of all obligations and covenants under
this Indenture and the Securities and may be dissolved and liquidated.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of
Holders.
Without notice to or the consent of any Holders, the Company,
when authorized by a Board Resolution, and the Trustee, at any time and from
time to time, may amend, waive or supplement this Indenture and Securities and
the Control Agreement and (if necessary) enter into one or more indentures
supplemental hereto, in form reasonably satisfactory to the Trustee, for any
of the following purposes:
(1) to evidence the succession of another Person to the Company
and the assumption by any such successor of the covenants of the
Company contained herein, and in the Securities, or
(2) to add to the covenants of the Company or to surrender any
right or power herein conferred upon the Company for the benefit of
the Holders of the Securities of any or all series (and if such
covenants or the surrender of such right or power are to be for the
benefit of less than all series of Securities, stating that such
covenants are expressly being included or such surrenders are
expressly being made solely for the benefit of one or more specified
series), or
(3) to add any additional Events of Default in respect of the
Securities of any or all series (and if such additional Events of
Default are to be in respect of less than all series of Securities,
stating that such Events of Default are expressly being included
solely for the benefit of one or more specified series), or
(4) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee pursuant to the requirements of
Section 611, or
(5) to cure any ambiguity, to correct or supplement any
provision herein that may be inconsistent with any other provision
herein, or to add any other provisions with respect to matters or
questions arising under this Indenture; provided that such action
shall not adversely affect the interests of the Holders of
Securities of any series in any material respect, or
(6) to secure the Securities or to add guarantors to the
Securities, or
(7) to provide for uncertificated Securities in addition to or
in place of certificated Securities, or
(8) to change or eliminate any of the provisions herein;
provided that any such change or elimination shall become effective
only when there is not
<PAGE>
Outstanding any Security created prior to the execution of such
amendment, waiver or supplemental indenture that is entitled to the
benefit of such provision, or
(9) to establish any form of Security, as provided in Article
Two, and to provide for the issuance of any series of Securities as
provided in Article Three and to set forth the terms thereof or to
add to the rights of the Holders of the Securities of any series; or
(10) to comply with the requirements of the Commission in order
to effect or maintain the qualification of this Indenture under the
Trust Indenture Act.
SECTION 902. Supplemental Indentures with Consent of Holders.
With the consent (including consents obtained with a purchase
of, or a tender or exchange offer for, Securities) of the Holders of not less
than a majority in principal amount of the Outstanding Securities of each
series affected by such supplemental indenture or indenture, by Act of said
Holders delivered to the Company and the Trustee, the Company, when authorized
by a Board Resolution, and the Trustee may amend, waive or supplement this
Indenture, and (if necessary) enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of
modifying in any manner the rights of the Holders under this Indenture;
provided, however, that no such supplemental indenture shall, without the
consent (including consents obtained with a purchase of, or a tender or
exchange offer for, Securities) of the Holder of each Outstanding Security
affected thereby:
(1) change the Stated Maturity of the principal of or any
installment of interest on any Security, or reduce the principal
amount thereof (or premium, if any) or the rate of interest thereon
or change the coin or currency in which any Security or any premium
or the interest thereon is payable, or impair the right to institute
suit for the enforcement of any such payment after the Stated
Maturity thereof (or, in the case of redemption, on or after the
Redemption Date), or
(2) reduce the percentage in principal amount of the
Outstanding Securities of any series, the consent of whose Holders
is required for any such supplemental indenture, or the consent of
whose Holders is required for any waiver of compliance with certain
provisions of this Indenture or certain defaults hereunder and their
consequences provided for in this Indenture, or
(3) subordinate in right of payment, or otherwise subordinate,
the Securities to any other Debt, or
(4) modify any provision of this Indenture relating to the
calculation of accreted value, or
(5) modify any of the provisions of this Section or Sections
513, except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or
waived without the consent of the Holder of each Outstanding
Security affected thereby.
<PAGE>
A supplemental indenture which changes or eliminates any
covenant or other provision of this Indenture which has expressly been
included solely for the benefit of one or more particular series of
Securities, or which modifies the rights of the Holders of Securities of such
series with respect to such covenant or other provision, shall be deemed not
to affect the rights under this Indenture of the Holders of Securities of any
other series.
It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such Act shall approve the substance thereof.
SECTION 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by,
any supplemental indenture permitted by this Article or the modifications
thereby of the trusts created by this Indenture, the Trustee shall be entitled
to receive, and shall be fully protected in relying upon, an Opinion of
Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not
(except to the extent required in the case of a supplemental indenture entered
into under Section 901(4) or 901(10)) be obligated to, enter into any such
supplemental indenture that affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
SECTION 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this
Article, this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all purposes;
and every Holder of Securities theretofore or thereafter authenticated and
delivered hereunder shall be bound thereby.
SECTION 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to the Article
shall conform to the requirements of the Trust Indenture Act as then in effect
if this Indenture shall then be required to be qualified under the TIA.
SECTION 906. Reference in Securities to Supplemental
Indentures.
Securities authenticated and delivered after the execution of
any supplemental indenture pursuant to this Article may, and shall if required
by the Trustee, bear a notation in form approved by the Trustee as to any
matter provided for in such supplemental indenture. If the Company shall so
determine, replacement Securities so modified as to conform, in the opinion of
the Trustee and the Company, to any such supplemental indenture may be
prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Securities.
<PAGE>
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium, If Any, and
Interest.
With respect to each series of Securities, the Company will
duly and punctually pay the principal of (and premium, if any) and interest on
such Securities in accordance with their terms and this Indenture, and will
duly comply with all the other terms, agreements and conditions contained in,
or made in the Indenture for the benefit of, the Securities of such series.
SECTION 1002. Maintenance of Office or Agency.
The Company will maintain in 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 Trustee's New York Corporate Trust
Office at 40 Broad Street, 5th Floor, Suite 550, New York, New York 10004
shall be such office or agency of the Company, unless the Company shall
designate and maintain some other office or agency for one or more of such
purposes. The Company will give prompt written notice to the Trustee of any
change in the location of any such office or agency. If at any time the
Company shall fail to maintain any such required office or agency or shall
fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust
Office of the Trustee, and the Company hereby appoints the Trustee as its
agent to receive all such presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more
other offices or agencies (in or outside of The City of New York) where the
Securities may be presented or surrendered for any or all such purposes and
may from time to time rescind any such designation; 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 City of New York for such
purposes. The Company will give prompt written notice to the Trustee of any
such designation or rescission and any change in the location of any such
other office or agency.
SECTION 1003. Money for Security Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent
for any series of Securities, it will, on or before each due date of the
principal of (or premium, if any) or interest on, any of the Securities of
such series, segregate and hold in trust for the benefit of the Persons
entitled thereto a sum sufficient to pay the principal of (or premium, if any)
or interest so becoming due until such sums shall be paid to such Persons or
otherwise disposed of as herein provided and will promptly notify the Trustee
of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for
any series of such Securities, it will, on or before each due date of the
principal of (or premium, if any) or interest any Securities of such series,
deposit with a Paying Agent a
<PAGE>
sum sufficient to pay the principal (and premium, if any) or interest so
becoming due, such sum to be held in trust for the benefit of the Persons
entitled to such principal, premium or interest, and (unless such Paying Agent
is the Trustee) the Company will promptly notify the Trustee of such action or
any failure so to act.
The Company will cause each Paying Agent (other than the
Company or the Trustee for any series of Securities) to execute and deliver to
the Trustee an instrument in which such Paying Agent shall agree with the
Trustee, subject to the provisions of this Section, that such Paying Agent
will:
(1) hold all sums held by it for the payment of the principal
of (and premium, if any) or interest on Securities of such series in
trust for the benefit of the Persons entitled thereto until such
sums shall be paid to such Persons or otherwise disposed of as
herein provided;
(2) give the Trustee notice of any default by the Company (or
any other obligor upon the Securities of such series) in the making
of any payment of principal (and premium, if any) or interest on the
Securities of such series; and
(3) at any time during the continuance of any such default,
upon the written request of the Trustee, forthwith pay to the
Trustee all sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture with respect to any series of
Securities or for any other purpose, pay, or by Company Order direct any
Paying Agent to pay, to the Trustee all sums held in trust by the Company or
such Paying Agent in respect of each and every series of Securities as to
which it seeks to discharge this Indenture or, if for any other purpose, all
sums so held in trust by the Company in respect of all Securities, such sums
to be held by the Trustee upon the same trusts as those upon which such sums
were held by the Company or such Paying Agent; and, upon such payment by any
Paying Agent to the Trustee, such Paying Agent shall be released from all
further liability with respect to such sums.
Any money deposited with the Trustee or any Paying Agent, or
then held by the Company, in trust for the payment of the principal of (or
premium, if any) or interest on any Security of any series and remaining
unclaimed for two years after such principal, premium or interest has become
due and payable shall be paid to the Company on Company Request, or (if then
held by the Company) shall be discharged from such trust; and the Holder of
such Security shall thereafter, as an unsecured general creditor, look only to
the Company for payment thereof, and all liability of the Trustee or such
Paying Agent with respect to such trust money, and all liability of the
Company as trustee thereof, shall thereupon cease.
The Company initially authorizes the Trustee to act as Paying
Agent for the Securities on its behalf. The Company may at any time and from
time to time authorize one or more Persons to act as Paying Agent in addition
to or in place of the Trustee with respect to any series of Securities issued
under this Indenture.
<PAGE>
SECTION 1004. Statement by Officers as to Default.
The Company will deliver to the Trustee, within 120 days after
the end of each fiscal year, a written statement signed by the principal
executive officer, principal financial officer or principal accounting officer
of the Company, stating that
(1) a review of the activities of the Company during such year
and of the Company's performance under this Indenture and under the
terms of the Securities has been made under his supervision; and
(2) to the best of his knowledge, based on such review, the
Company has complied with all conditions and covenants under this
Indenture through such year, or, if there has been a Default in the
fulfillment of any such obligation, specifying each such Default
known to him and the nature and status thereof (other than with
respect to Debt in the principal amount of less than $15,000,000).
For purposes of this Section 1004, compliance shall be
determined without regard to any grace period or requirement of notice
provided pursuant to the terms of this Indenture.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article.
The Company may reserve the right to redeem and pay before
Stated Maturity all or any part of the Securities of any series, either by
optional redemption, sinking or purchase fund or analogous obligation or
otherwise, by provision therefor in the form of Security for such series
established and approved pursuant to Section 202 and on such terms as are
specified in such form or in the Board Resolution or indenture supplemental
hereto with respect to Securities of such series as provided in Section 301
Redemption of Securities of any series shall be made in accordance with the
terms of such Securities and, to the extent that this Article does not
conflict with such terms, the succeeding Sections of this Article.
SECTION 1102. Election to Redeem; Notice to Trustee.
In the case of any redemption of Securities (i) prior to the
expiration of any restriction on such redemption provided in the terms of such
securities or elsewhere in this Indenture, or (ii) pursuant to an election of
the Company which is subject to a condition specified in the terms of such
Securities, the Company shall furnish the Trustee with an Officers'
Certificate evidencing compliance with such restriction or condition.
SECTION 1103. Selection by Trustee of Securities to Be
Redeemed.
If less than all the Securities of like tenor and terms of any
series are to be redeemed, the particular Securities to be redeemed shall be
selected not more than 60 days prior to the Redemption Date by the Trustee
from the Outstanding Securities of
<PAGE>
such series not previously called for redemption 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 then listed on a
national securities exchange, on a pro rata basis or by lot or any other
method as the Trustee shall deem fair and appropriate and that may provide for
the selection for redemption of portions of the principal of Securities of
such series of a denomination larger than the minimum authorized denomination
for Securities of that series. Unless otherwise provided in the terms of a
particular series of Securities, the portions of the principal of Securities
so selected for partial redemption shall be equal to the minimum authorized
denomination of the Securities of such series, or an integral multiple
thereof, and the principal amount which remains outstanding shall not be less
than the minimum authorized denomination for Securities of such series. If
less than all the Securities of unlike tenor and terms of a series are to be
redeemed, the particular Securities to be redeemed shall be selected by the
Company.
The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption and, in the case of any Security selected
for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to redemption of Securities shall
relate, in the case of any Security redeemed or to be redeemed only in part,
to the portion of the principal amount of such Security that has been or is to
be redeemed.
SECTION 1104. Notice of Redemption.
Notice of redemption shall be given in the manner provided for
in Section 106 not less than 30 nor more than 60 days prior to the Redemption
Date, to each Holder of Securities to be redeemed.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price and the amount of accrued interest to
the Redemption Date payable as provided in Section 1106, if any,
(3) if less than all Outstanding Securities of any series are
to be redeemed, the identification including CUSIP numbers (and, in
the case of a partial redemption, the principal amounts) of the
particular Securities to be redeemed,
(4) in case any Security is to be redeemed in part only, the
notice that relates to such Security shall state that on and after
the Redemption Date, upon surrender of such Security, the holder
will receive, without charge, a new Security or Securities of
authorized denominations for the principal amount thereof remaining
unredeemed,
(5) that on the Redemption Date the Redemption Price (and
accrued interest, if any, to the Redemption Date payable as provided
in Section 1106) will become due and payable upon each such
Security, or the portion thereof, to be redeemed, and that interest
thereon will cease to accrue on and after said date,
<PAGE>
(6) the place or places where such Securities are to be
surrendered for payment of the Redemption Price and accrued
interest, if any, and
(7) that the redemption is on account of a sinking or purchase
fund, or other analogous obligation, if that be the case.
Notice of redemption of Securities to be redeemed at the
election of the Company shall be given by the Company or, at the Company's
request, by the Trustee in the name and at the expense of the Company.
SECTION 1105. Deposit of Redemption Price.
Prior to 12:00 noon, New York City time, on any Redemption
Date, the Company shall deposit with the Trustee or with a Paying Agent (or,
if the Company is acting as its own Paying Agent, segregate and hold in trust
as provided in Section 1003) an amount of money sufficient to pay the
Redemption Price of, and accrued interest on, all the Securities that are to
be redeemed on that date.
SECTION 1106. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the
Securities so to be redeemed shall, on the Redemption Date, become due and
payable at the Redemption Price therein specified (together with accrued
interest, if any, to the Redemption Date), and from and after such date
(unless the Company shall default in the payment of the Redemption Price and
accrued interest) such Securities shall cease to bear interest. Upon surrender
of any such Security for redemption in accordance with said notice, such
Security shall be paid by the Company at the Redemption Price, together with
accrued interest, if any, to the Redemption Date; provided, however, that
installments of interest whose Stated Maturity is on or prior to the
Redemption Date shall be payable to the Holders of such Securities, or one or
more Predecessor Securities, registered as such at the close of business on
the relevant Record Dates according to their terms and the provisions of
Section 307.
On and after any Redemption Date, if money sufficient to pay
the Redemption Price of any accrued and unpaid interest on Securities called
for redemption shall have been made available in accordance with Section 1105,
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 provision in the preceding paragraph,
any accrued and unpaid interest on such Securities to the Redemption Date.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium, if any) shall,
until paid, bear interest from the Redemption Date at the rate borne by the
Security.
SECTION 1107. Securities Redeemed in Part.
Any Security that is to be redeemed only in part shall be
surrendered at the office or agency of the Company maintained for such purpose
pursuant to Section 1002 (with, if the Company or the Trustee so requires, due
endorsement by, or a written instrument of transfer in form satisfactory to
the Company and the Trustee duly
<PAGE>
executed by, the Holder thereof or such Holders attorney duly authorized in
writing), and the Company shall execute, and the Trustee shall authenticate
and deliver to the Holder of such Security without service charge, a new
Security or Securities, of any authorized denomination as requested by such
Holder, in aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Security so surrendered.
SECTION 1108. Provisions with Respect to Any Sinking Funds.
Unless the form or terms of any series of Securities shall
provide otherwise, in lieu of making all or any part of any mandatory sinking
fund payment with respect to such series of Securities in cash, the Company
may at its option (1) deliver to the Trustee for cancelation any Securities of
such series theretofore acquired by the Company, or (2) receive credit for any
Securities of such series (not previously so credited) acquired by the Company
and theretofore delivered to the Trustee for cancelation or redeemed by the
Company other than through the mandatory sinking fund, and if it does so then
(i) Securities so delivered or credited shall be credited at the applicable
sinking fund Redemption Price with respect to Securities of such series, and
(ii) on or before the 60th day next preceding each sinking fund Redemption
Date with respect to such series of Securities, the Company will deliver to
the Trustee (A) an Officers' Certificate specifying the portions of such
sinking fund payment to be satisfied by payment of cash and by delivery or
credit of Securities of such series acquired by the Company or so redeemed,
and (B) such Securities so acquired, to the extent not previously surrendered.
Such Officers' Certificate shall also state the basis for such credit and that
the Securities for which the Company elects to receive credit have not been
previously so credited and were not redeemed by the Company through operation
of the mandatory sinking fund, if any, provided with respect to such
Securities and shall also state that no Event of Default with respect to
Securities of such series has occurred and is continuing All Securities so
delivered to the Trustee shall be canceled by the Trustee and no Securities
shall be authenticated in lieu thereof.
If the sinking fund payment or payments (mandatory or optional)
with respect to any series of Securities made in cash plus any unused balance
of any preceding sinking fund payments with respect to Securities of such
series made in cash shall exceed $50,000 (or a lesser sum if the Company shall
so request), unless otherwise provided by the terms of such series of
Securities, that cash shall be applied by the Trustee on the sinking fund
Redemption Date with respect to Securities of such series next following the
date of such payment to the redemption of Securities of such series at the
applicable sinking fund Redemption Price with respect to Securities of such
series, together with accrued interest, if any, to the date fixed for
redemption, with the effect provided in Section 1106. The Trustee shall
select, in the manner provided in Section 1103, for redemption on such sinking
fund Redemption Date a sufficient principal amount of Securities of such
series to utilize that cash and shall thereupon cause notice of redemption of
the Securities of such series for the sinking fund to be given in the manner
provided in Section 1104 (and with the effect provided in Section 1106) for
the redemption of Securities in part at the option of the Company. Any sinking
fund moneys not so applied or allocated by the Trustee to the redemption of
Securities of such series shall be added to the next cash sinking fund payment
with respect to Securities of such series received by the Trustee and,
together with such payment, shall be applied in accordance with the provisions
of this Section 1108. Any and all sinking fund moneys with respect to
Securities of any series held by the Trustee at the Maturity of Securities of
such series, and not held for the payment or redemption of particular
Securities of
<PAGE>
such series, shall be applied by the Trustee, together with other moneys, if
necessary, to be deposited sufficient for the purpose, to the payment of the
principal of the Securities of such series at Maturity.
On or before each sinking fund Redemption Date provided with
respect to Securities of any series, the Company shall pay to the Trustee in
cash a sum equal to all accrued interest, if any, to the date fixed for
redemption on Securities to be redeemed on such sinking fund Redemption Date
pursuant to this Section 1108.
ARTICLE TWELVE
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1201. Applicability of Article; Company's Option to
Effect Defeasance or Covenant Defeasance. If, pursuant to Section 301,
provision is made for either or both of (a) defeasance of the Securities of or
within a series under Section 1202 or (b) covenant defeasance of the
Securities of or within a series under Section 1203, then the provisions of
such Section or Sections, as the case may be, together with the other
provisions of this Article (with such modifications thereto as may be
specified pursuant to Section 301 with respect to any Securities), shall be
applicable to such Securities, and the Company may at its option by Board
Resolution, at any time, with respect to such Securities, elect to have
Section 1202 (if applicable) or Section 1203 (if applicable) be applied to
such Outstanding Securities upon compliance with the conditions set forth
below in this Article.
SECTION 1202. Defeasance and Discharge. Upon the Company's
exercise of the above option applicable to this Section with respect to any
Securities of or within a series, the Company shall be deemed to have been
discharged from its obligations with respect to such Outstanding Securities on
the date the conditions set forth in Section 1204 are satisfied (hereinafter,
"defeasance"). For this purpose, such defeasance means that the Company shall
be deemed to have paid and discharged the entire indebtedness represented by
such Outstanding Securities and any coupons appertaining thereto, which shall
thereafter be deemed to be "Outstanding" only for the purposes of Section 1205
and the other Sections of this Indenture referred to in clauses (A) and (B) of
this Section, and to have satisfied all its other obligations under such
Securities and any coupons appertaining thereto and this Indenture insofar as
such Securities and any coupons appertaining thereto are concerned (and the
Trustee, at the expense of the Company, shall execute proper instruments
acknowledging the same), except for the following which shall survive until
otherwise terminated or discharged hereunder: (A) the rights of Holders of
such Outstanding Securities and any coupons appertaining thereto to receive,
solely from the trust fund described in Section 1204 and as more fully set
forth in such Section, payments in respect of the principal of (and premium,
if any) and interest, if any, on such Securities and any coupons appertaining
thereto when such payments are due, (B) the Company's obligations with respect
to such Securities under Sections 305, 306, 1002 and 1003, (C) the rights,
powers, trusts, duties and immunities of the Trustee hereunder and (D) this
Article. Subject to compliance with this Article Twelve, the Company may
exercise its option under this Section notwithstanding the prior exercise of
its option under Section 1203 with respect to such Securities and any coupons
appertaining thereto.
<PAGE>
SECTION 1203. Covenant Defeasance. Upon the Company's exercise
of the above option applicable to this Section with respect to any Securities
of or within a series, the Company shall be released from its obligations
under Section 1004, and, if specified pursuant to Section 301, its obligations
under any other covenant, with respect to such Outstanding Securities and any
coupons appertaining thereto on and after the date the conditions set forth in
Section 1204 are satisfied (hereinafter, "covenant defeasance"), and such
Securities and any coupons appertaining thereto shall thereafter be deemed to
be not "Outstanding" for the purposes of any direction, waiver, consent or
declaration or Act of Holders (and the consequences of any thereof) in
connection with Section 1004, or such other covenant, but shall continue to be
deemed "Outstanding" for all other purposes hereunder. For this purpose, such
covenant defeasance means that, with respect to such Outstanding Securities
and any coupons appertaining thereto, the Company may omit to comply with and
shall have no liability in respect of any term, condition or limitation set
forth in any such Section or such other covenant, whether directly or
indirectly, by reason of any reference elsewhere herein to any such Section or
such other covenant or by reason of reference in any such Section or such
other covenant to any other provision herein or in any other document and such
omission to comply shall not constitute a default or an Event of Default under
Section 501(e) or 501(h) or otherwise, as the case may be, but, except as
specified above, the remainder of this Indenture and such Securities and any
coupons appertaining thereto shall be unaffected thereby.
SECTION 1204. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to application of Section 1202 or
Section 1203 to any Outstanding Securities of or within a series and any
coupons appertaining thereto:
(a) The Company shall irrevocably have deposited or caused to
be deposited with the Trustee (or another trustee satisfying the
requirements of Section 609 who shall agree to comply with the
provisions of this Article Fourteen applicable to it) as trust funds
in trust for the purpose of making the following payments,
specifically pledged as security for, and dedicated solely to, the
benefit of the Holders of such Securities and any coupons
appertaining thereto, (1) an amount (in such currency, currencies of
currency unit in which such Securities and any coupons appertaining
thereto are then specified as payable at Stated Maturity), or (2)
U.S. Government Obligations applicable to such Securities and
coupons appertaining thereto (determined on the basis of the
currency, currencies or currency unit in which such Securities and
coupons appertaining thereto are then specified as payable at Stated
Maturity) which through the scheduled payment of principal and
interest in respect thereof in accordance with their terms will
provide, not later than one day before the due date of any payment
of principal of (and premium, if any) and interest, if any, on such
Securities and any coupons appertaining thereto, money in an amount,
or (3) a combination thereof, in any case, in an amount, sufficient,
in the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered
to the Trustee, to pay and discharge, and which shall be applied by
the Trustee (or other qualifying trustee) to pay and discharge, (i)
the principal of (and premium, if any) and interest, if any, on such
Outstanding Securities and any coupons appertaining thereto on the
Stated Maturity of such principal or installment of principal or
interest and (ii) any mandatory sinking fund payments or analogous
payments applicable to such Outstanding Securities and any coupons
appertaining thereto on the day on which
<PAGE>
such payments are due and payable in accordance with the terms of
this Indenture and of such Securities and any coupons appertaining
thereto.
(b) Such defeasance or covenant defeasance shall not result in
a breach or violation of, or constitute a default under, this
Indenture or any other material agreement or instrument to which the
Company is a party or by which it is bound.
(c) No Event of Default or event which with notice or lapse of
time or both would become an Event of Default with respect to such
Securities and any coupons appertaining thereto shall have occurred
and be continuing on the date of such deposit or, insofar as
Sections 501(f) and 501(g) are concerned, at any time during the
period ending on the 91st day after the date of such deposit (it
being understood that this condition shall not be deemed satisfied
until the expiration of such period).
(d) In the case of an election under Section 1202, the Company
shall have delivered to the Trustee an Opinion of Counsel stating
that (i) the Company has received from, or there has been published
by, the Internal Revenue Service a ruling, or (ii) since the date of
execution of this Indenture, there has been a change in the
applicable Federal income tax law, in either case to the effect
that, and based thereon such opinion shall confirm that, the Holders
of such Outstanding Securities and any coupons appertaining thereto
will not recognize income, gain or loss for Federal income tax
purposes as a result of such covenant defeasance and will be subject
to Federal income tax on the same amounts, in the same manner and at
the same time as would have been the case if such defeasance had not
occurred.
(e) In the case of an election under Section 1203, the Company
shall have delivered to the Trustee an Opinion of Counsel to the
effect that the Holders of such Outstanding Securities and any
coupons appertaining thereto will not recognize income, gain or loss
for Federal income tax purposes as a result of such covenant
defeasance and will be subject to Federal income tax on the same
amounts, in the same manner and at the same times as would have been
the case if such covenant defeasance had not occurred.
(f) The Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that
all conditions precedent to the defeasance under Section 1202 or the
covenant defeasance under Section 1203 (as the case may be) have
been complied with and an Opinion of Counsel to the effect that
either (i) as a result of a deposit pursuant to subsection (a) above
and the related exercise of the Company's option under Section 1202
or Section 1203 (as the case may be), registration is not required
under the Investment Company Act of 1940, as deposit or by the
Trustee for such trust funds or (ii) all necessary registrations
under said Act have been effected.
(g) Notwithstanding any other provisions of this Section, such
defeasance or covenant defeasance shall be effected in compliance
with any additional or substitute terms, conditions or limitations
which may be imposed on the Company in connection therewith pursuant
to Section 301.
<PAGE>
SECTION 1205. Deposited Money and U.S. Government Obligations
to Be Held in Trust; Other Miscellaneous Provisions. Subject to the provisions
of the penultimate paragraph of Section 1003, all money and U.S. Government
Obligations (or other property as may be provided pursuant to Section 301)
(including the proceeds thereof) deposited with the Trustee (or other
qualifying trustee, collectively for purposes of this Section 1205, the
"Trustee") pursuant to Section 1204 in respect of any Outstanding Securities
of any series and any coupons appertaining thereto shall be held in trust and
applied by the Trustee, in accordance with the provisions of such Securities
and any coupons appertaining thereto and this Indenture, to the payment,
either directly or through any Paying Agent (including the Company acting as
its own Paying Agent) as the Trustee may determine, to the Holders of such
Securities and any coupons appertaining thereto of all sums due and to become
due thereon in respect of principal (and premium, if any) and interest and
Additional Amounts, if any, but such money need not be segregated from other
funds except to the extent required by law.
The Company shall pay and indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against the U.S. Government
Obligations deposited pursuant to Section 1204 or the principal and interest
received in respect thereof other than any such tax, fee or other charge which
by law is for the account of the holders of such Outstanding Securities and
any coupons appertaining thereto.
Anything in this Article to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon Company
Request any money or U.S. Government Obligations (or other property and any
proceeds therefrom) held by it as provided in Section 1204 which, in the
opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, are in
excess of the amount thereof which would then be required to be deposited to
effect a defeasance or covenant defeasance, as applicable, in accordance with
this Article.
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed and attested, all as of the day and year first
above written.
TELIGENT, INC.
By _______________________
Title:
FIRST UNION NATIONAL BANK
By _________________________
Title:
<PAGE>
TABLE OF CONTENTS
Page
PARTIES.....................................................................1
RECITALS OF THE COMPANY.....................................................1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions..........................................1
Act................................................................2
Additional Amounts.................................................2
Affiliate..........................................................2
Authenticating Agent...............................................2
Board of Directors.................................................2
Board Resolution...................................................2
Business Day.......................................................2
Commission.........................................................2
Company............................................................2
Company Request or Company Order...................................3
Corporate Trust Office.............................................3
Debt...............................................................3
Default............................................................3
Defaulted Interest.................................................3
Depositary.........................................................3
Event of Default...................................................3
Exchange Act.......................................................3
Global Security....................................................3
Holder.............................................................3
Indenture or this Indenture........................................3
Interest...........................................................4
Interest Payment Date..............................................4
Maturity...........................................................4
Officers' Certificate..............................................4
Opinion of Counsel.................................................4
Original Issue Discount Security...................................4
Outstanding........................................................4
Paying Agent.......................................................5
Person.............................................................5
Predecessor Security...............................................5
Redemption Date....................................................5
Redemption Price...................................................5
Regular Record Date................................................5
Responsible Officer................................................5
Securities Act.....................................................6
Security or Securities.............................................6
<PAGE>
Security Register and Security Registrar...........................6
Special Record Date................................................6
Stated Maturity....................................................6
Subsidiary.........................................................6
Trust Indenture Act or TIA.........................................6
Trustee............................................................6
U.S. Government Obligations........................................6
Vice President.....................................................7
Voting Stock.......................................................7
SECTION 102. Compliance Certificates and Opinions.................7
SECTION 103. Form of Documents Delivered to Trustee...............8
SECTION 104. Acts of Holders......................................8
SECTION 105. Notices, Etc., to Trustee and Company................9
SECTION 106. Notice to Holders; Waiver...........................10
SECTION 107. Effect of Headings, Table of Contents and Recitals..10
SECTION 108. Successors and Assigns..............................10
SECTION 109. Separability Clause.................................10
SECTION 110. Benefits of Indenture...............................11
SECTION 111. Governing Law.......................................11
SECTION 112. Legal Holidays......................................11
SECTION 113. No Recourse Against Others..........................11
SECTION 114. Exhibits and Schedules..............................11
SECTION 115. Counterparts........................................12
SECTION 116. Judgment Currency...................................12
SECTION 117. Duplicate Originals.................................12
SECTION 118. Incorporation by Reference of TIA...................12
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally.....................................13
SECTION 202. Forms of Securities.................................13
SECTION 203. Form of Trustee's Certificate of Authentication.....14
SECTION 204. Securities Issuable in the Form of a Global
Security..........................................14
ARTICLE THREE
THE SECURITIES
SECTION 301. Title and Terms.....................................16
SECTION 302. Denominations.......................................19
SECTION 303. Execution, Authentication, Delivery and Dating......19
SECTION 304. Temporary Securities................................20
SECTION 305. Registration, Transfer and Exchange.................21
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities....22
SECTION 307. Payment of Interest; Interest Rights Preserved......23
SECTION 308. Persons Deemed Owners...............................24
SECTION 309. Cancelation.........................................24
SECTION 310. Computation of Interest.............................25
SECTION 311. Medium-term Securities..............................25
<PAGE>
SECTION 312. CUSIP Numbers.......................................25
SECTION 313. Global Securities...................................25
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture.............27
SECTION 402. Application of Trust Money..........................28
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default...................................28
SECTION 502. Acceleration of Maturity; Rescission and Annulment..30
SECTION 503. Collection of Debt and Suits for Enforcement by
Trustee...........................................31
SECTION 504. Trustee May File Proofs of Claim....................31
SECTION 505. Trustee May Enforce Claims Without Possession of
Securities........................................32
SECTION 506. Application of Money Collected......................32
SECTION 507. Limitation on Suits.................................33
SECTION 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest..............................33
SECTION 509. Restoration of Rights and Remedies..................34
SECTION 510. Rights and Remedies Cumulative......................34
SECTION 511. Delay or Omission Not Waiver........................34
SECTION 512. Control by Holders..................................34
SECTION 513. Waiver of Past Defaults.............................35
SECTION 514. Waiver of Stay or Extension Laws....................35
SECTION 515. Undertaking for Costs...............................35
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities.................36
SECTION 602. Notice of Defaults..................................37
SECTION 603. Certain Rights of Trustee...........................37
SECTION 604. Trustee Not Responsible for Recitals or
Issuance of Securities............................38
SECTION 605. May Hold Securities.................................38
SECTION 606. Money Held in Trust.................................38
SECTION 607. Compensation and Reimbursement......................38
SECTION 608. Disqualification; Conflicting Interests.............39
SECTION 609. Corporate Trustee Required; Eligibility.............40
SECTION 610. Resignation and Removal; Appointment of Successor...40
SECTION 611. Acceptance of Appointment by Successor..............41
SECTION 612. Merger, Conversion, Consolidation or
Succession to Business............................42
SECTION 613. Conflicting Interests...............................42
SECTION 614. Preferential Collection of Claims Against Issuers...42
SECTION 615. Appointment of Authenticating Agent.................42
<PAGE>
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Disclosure of Names and Addresses of Holders........44
SECTION 702. Reports by Trustee..................................44
SECTION 703. Reports by Company..................................44
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, Etc., Only on
Certain Terms.....................................45
SECTION 802. Successor Substituted...............................46
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders..47
SECTION 902. Supplemental Indentures with Consent of Holders.....48
SECTION 903. Execution of Supplemental Indentures................49
SECTION 904. Effect of Supplemental Indentures...................49
SECTION 905. Conformity with Trust Indenture Act.................49
SECTION 906. Reference in Securities to Supplemental
Indentures........................................49
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium, If Any, and
Interest..........................................49
SECTION 1002. Maintenance of Office or Agency....................50
SECTION 1003. Money for Security Payments to Be Held in Trust....50
SECTION 1004. Statement by Officers as to Default................51
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article...........................52
SECTION 1102. Election to Redeem; Notice to Trustee..............52
SECTION 1103. Selection by Trustee of Securities to Be
Redeemed..........................................52
SECTION 1104. Notice of Redemption...............................53
SECTION 1105. Deposit of Redemption Price........................53
SECTION 1106. Securities Payable on Redemption Date..............54
SECTION 1107. Securities Redeemed in Part........................54
SECTION 1108. Provisions with Respect to Any Sinking Funds.......54
<PAGE>
ARTICLE TWELVE
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1201. Applicability of Article; Company's Option to Effect
Defeasance or Covenant Defeasance. ...............55
SECTION 1202. Defeasance and Discharge...........................56
SECTION 1203. Covenant Defeasance................................56
SECTION 1204. Conditions to Defeasance or Covenant Defeasance....57
SECTION 1205. Deposited Money and U.S. Government Obligations to
Be Held in Trust; Other Miscellaneous Provisions..58
<PAGE>
TELIGENT, INC.
Reconciliation and tie between Trust Indenture Act
of 1939 and the Senior Indenture
Trust Indenture
Act Section Indenture Section
ss. 310(a)(1) ............................................ 609
(a)(2) ............................................ 609
(a)(4) ............................................ 609
(a)(5) ............................................ 609
(b) ............................................ 605, 608,
610, 613
ss. 311(a) ............................................ 614
(b) ............................................ 614
ss. 312(c) ............................................ 701
ss. 313(a) ............................................ 702
(c) ............................................ 602, 702,
703
ss. 314(a) ............................................ 703
(a)(4) ............................................ 1004
(c)(1) ............................................ 102
(c)(2) ............................................ 102
(c)(3) ............................................ 102
(e) ............................................ 102
ss. 315(a) ............................................ 601
(b) ............................................ 602
(c) ............................................ 601
(d) ............................................ 601
(e) ............................................ 610
ss. 316(a)(last
sentence) ............................................ 101
("Outstanding")
(a)(1)(A) ............................................ 502, 512
(a)(1)(B) ............................................ 513
(b) ............................................ 508
(c) ............................................ 104(d)
ss. 317(a)(1) ............................................ 503
(a)(2) ............................................ 504
(b) ............................................ 1003
ss. 318(a) ............................................ 111
EXHIBIT 4.4
==============================================================================
TELIGENT, INC.
TO
FIRST UNION NATIONAL BANK,
Trustee
---------------------------
Form of Subordinated Indenture
Dated as of
---------------------------
==============================================================================
<PAGE>
SUBORDINATED INDENTURE, dated as of , by
and between TELIGENT, INC., a corporation duly
organized and existing under the laws of the State
of Delaware (herein called the "Company"), having
its principal office at 8065 Leesburg Pike,
Vienna, VA 22182 and FIRST UNION NATIONAL BANK, a
national banking association (herein called the
"Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery
of this Indenture to provide for the issuance from time to time of its
Securities, notes, bonds or other evidences of indebtedness, to be
issued in one or more fully registered series.
This Indenture is subject to the provisions of the Trust
Indenture Act of 1939, as amended, that are required to be part of
this Indenture and shall, to the extent applicable, be governed by
such provisions.
All things necessary have been done to make this Indenture a
valid agreement of the Company, in accordance with its terms.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
That in order to declare the terms and conditions upon which
the Securities are to be authenticated, issued and delivered, and in
consideration of the premises and the purchase of the Securities by
the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of the respective Holders from time to
time of the Securities or of a series thereof, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions.
For all purposes of this Indenture and of any indenture
supplemental hereto, except as otherwise expressly provided or unless
the context otherwise requires:
(a) the terms defined in this Article have the
meanings assigned to them in this Article, and include the
plural as well as the singular;
(b) all other terms used herein that are defined in
the Trust Indenture Act, either directly or by reference
therein, have the meanings assigned to them therein, and the
terms "cash transaction" and "self-liquidating paper", as
used in TIA Section 311, shall have the meanings assigned to
them in the rules of the Commission adopted under the Trust
Indenture Act; and
<PAGE>
(c) the words "herein", "hereof" and "hereunder" and
other words of similar import refer to this Indenture as a
whole and not to any particular Article, Section or other
subdivision.
"Act", when used with respect to any Holder, has the meaning
specified in Section 104.
"Additional Amounts" means any additional amounts which are
required by a Security or by or pursuant to a Board Resolution, under
circumstances specified therein, to be paid by the Company in respect
of certain taxes imposed on certain Holders and which are owing to
such Holders.
"Affiliate" means, as to any Person, any other Person that
directly or indirectly controls, or is under common control with, or
is controlled by, such Person. As used in this definition, "control"
(including, with its correlative meanings, "controlled by" and "under
common control with") shall mean possession, directly or indirectly,
of power to direct or cause the direction of management or policies of
such Person (whether through ownership of securities or partnership or
other ownership interests, by contract or otherwise), provided that,
in any event, unless otherwise specified in a supplemental indenture,
any Person that owns directly or indirectly 10% of more of the
securities having ordinary voting power for the election of directors
or other governing body of a corporation or 10% or more of the
partnership or other ownership interests of any other Person (other
than as a limited partner of such other Person) shall be deemed to
control such corporation or other Person. Notwithstanding the
foregoing, no individual shall be deemed to be an Affiliate of a
Person solely by reason of his or her being an officer or director (or
equivalent) of such Person.
"Authenticating Agent" means any person authorized by the
Trustee to authenticate Securities under Section 615.
"Bearer Security" means any Security established pursuant to
Section 301 which is payable to bearer.
"Board of Directors" means either the board of directors of
the Company or any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by
the Secretary or an Assistant Secretary of the Company to have been
duly adopted by the Board of Directors and to be in full force and
effect on the date of such certification, and delivered to the
Trustee.
"Business Day" means each Monday, Tuesday, Wednesday,
Thursday and Friday that is not a day on which banking institutions in
the Borough of Manhattan, The City of New York are authorized or
obligated by law or executive order to close.
"Commission" means the Securities and Exchange Commission,
as from time to time constituted, created under the Exchange Act, or,
if at any time after the execution of this Indenture such Commission
is not existing and performing the duties now assigned to it under the
Trust Indenture Act, then the body performing such duties at such
time.
<PAGE>
"Company" means the Person named as the "Company" in the
first paragraph of this Indenture, until a successor Person shall have
become such pursuant to the applicable provisions of this Indenture,
and thereafter "Company" shall mean such successor Person.
"Company Request" or "Company Order" means a written request
or order signed in the name of the Company by an officer of the
Company, and delivered to the Trustee.
"Corporate Trust Office" means the principal corporate trust
office of the Trustee, at which at any particular time its corporate
trust business shall be administered, which office at the date of
execution of this Indenture is located at Corporate Trust (VA- 3279),
800 East Main Street, Richmond, Virginia 23219 except that, with
respect to presentation of Securities for payment or for registration
of transfer or exchange, such term shall mean the office or agency of
the Trustee at which, at any particular time, its corporate agency
business shall be conducted.
"Debt" means indebtedness for money borrowed, unless
otherwise specified in a supplemental indenture.
"Default" means any event, act or condition the occurrence
of which is, or after notice or the passage of time or both would be,
an Event of Default.
"Defaulted Interest" has the meaning specified in
Section 307.
"Depositary" means, unless otherwise specified by the
Company pursuant to either Section 204 or 301, with respect to
Securities of any series issuable or issued as a Global Security, The
Depository Trust Company, New York, New York, or any successor thereto
registered as a clearing agency under the Exchange Act or other
applicable statute or regulation.
"Designated Senior Debt" means, as such term may be modified
by a supplemental indenture:
Senior Debt that has, at the time of determination, an
aggregate principal amount outstanding to be specified in a
supplemental indenture (including the amount of all undrawn
commitments and matured and contingent reimbursement obligations
pursuant to letters of credit thereunder) that is specifically
designated in the instrument evidencing such Senior Debt and is
designated in a notice delivered by the Company to the holders or a
Representative of the holders of such Senior Debt and in an Officers'
Certificate delivered to the Trustee as "Designated Senior Debt" of
the Company for purposes of the Indenture.
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" means the Securities Exchange Act of 1934.
"Global Security" means, with respect to any series of
Securities issued hereunder, a Security which is executed by the
Company and authenticated and delivered by the Trustee to the
Depositary or pursuant to the Depositary's instruction, all in
accordance with this Indenture and an indenture supplemental hereto,
if any, or Board
<PAGE>
Resolution and pursuant to a Company Request, which shall be
registered in the name of the Depositary or its nominee and which
shall represent, and shall be denominated in an amount equal to the
aggregate principal amount of, all of the Outstanding Securities of
such series or any portion thereof, in either case having the same
terms, including, without limitation, the same original issue date,
date or dates on which principal is due, and interest rate or method
of determining interest.
"Holder" means a Person in whose name a Security is
registered in the Security Register.
"Indenture"or "this Indenture" means this instrument as
originally executed or as it may from time to time be supplemented or
amended by one or more indentures supplemental hereto entered into
pursuant to the applicable provisions hereof and shall include the
terms of particular series of Securities established as contemplated
by Section 301.
"Interest", when used with respect to an Original Issue
Discount Security by which its terms bears interest only after
Maturity, means interest payable after Maturity.
"Interest Payment Date", when used with respect to any
series of Securities, means the Stated Maturity of any installment of
interest on those Securities.
"Property" means, with respect to any Person, any interest
of such Person in any kind of property or asset, whether real,
personal or mixed, or tangible or intangible, including capital stock
in, and other securities of, any other Person. For purposes of any
calculation required pursuant to the Indenture, the value of any
Property shall be its Fair Market Value, as such term will be defined
in a supplemental indenture.
"Maturity", when used with respect to any Securities, means
the date on which the principal of such Security becomes due and
payable as provided therein or herein, whether at the Stated Maturity
or by declaration of acceleration, call for redemption or otherwise.
"Officers' Certificate" means a certificate signed by the
Chairman of the Board of Directors, a Vice Chairman of the Board of
Directors, the President or a Vice President, and by the Chief
Financial Officer, the Chief Accounting Officer, the Treasurer, an
Assistant Treasurer, the Secretary or an Assistant Secretary of the
Company and delivered to the Trustee, which certificate shall comply
with this Indenture.
"Opinion of Counsel" means a written opinion of counsel, who
may be an employee of or counsel for the Company and who shall be
reasonably acceptable to the Trustee.
"Original Issue Discount Security" means (i) any Security
which provides for an amount less than the principal amount thereof to
be due and payable upon a declaration for acceleration of the Maturity
thereof, and (ii) any other Security deemed an Original Issue Discount
Security for United States Federal income tax purposes.
<PAGE>
"Outstanding", when used with respect to Securities of any
series, means, as of the date of determination, all such Securities
theretofore authenticated and delivered under this Indenture, except:
(i) such Securities theretofore canceled by the
Trustee or delivered to the Trustee for cancelation;
(ii) such Securities for whose payment or redemption
money in the necessary amount has been theretofore deposited
with the Trustee or any Paying Agent (other than the
Company) in trust or set aside and segregated in trust by
the Company (if the Company shall act as its own Paying
Agent) for the Holders of such Securities; provided that, if
such Securities are to be redeemed, notice of such
redemption has been duly given pursuant to this Indenture or
provision therefor reasonably satisfactory to the Trustee
has been made;
(iii) Securities, except to the extent expressly
provided in Sections 1202 and 1203, with respect to which
the Company has effected defeasance or covenant defeasance
as provided in Article Twelve; and
(iv) Securities that have been paid pursuant to
Section 306 or in exchange for or in lieu of which other
Securities have been authenticated and delivered pursuant to
this Indenture, other than any such Securities in respect of
which there shall have been presented to the Trustee proof
satisfactory to it that such Securities are held by a bona
fide purchaser in whose hands the Securities are valid
obligations of the Company;
provided, however, that in determining whether the Holders of the
requisite principal amount of such Securities Outstanding have given
any request, demand, authorization, direction, consent, notice or
waiver hereunder, (i) the principal amount of any Original Issue
Discount Security that shall be deemed to be Outstanding shall be the
amount of the principal thereof that would be due and payable as of
the date of the taking of such action upon a declaration of
acceleration of the Maturity thereof and (ii) for the purpose of
making the calculations required by TIA Section 313, Securities owned
by the Company or any other obligor upon the Securities or any
Affiliate of the Company or such other obligor shall be disregarded
and deemed not to be Outstanding, except that, in determining whether
the Trustee shall be protected in making such calculation or in
relying upon any such request, demand, authorization, direction,
notice, consent or waiver, only Securities that the Trustee knows to
be so owned shall be so disregarded. Securities so owned that have
been pledged in good faith may be regarded as Outstanding if the
pledgee establishes to the satisfaction of the Trustee the pledgee's
right so to act with respect to such Securities and that the pledgee
is not the Company or any other obligor upon the Securities or any
Affiliate of the Company or such other obligor.
"Paying Agent" means any Person (including the Company
acting as Paying Agent) authorized by the Company to pay the principal
of (and premium, if any) or interest on any Securities on behalf of
the Company.
"Person" means any individual, corporation, partnership,
joint venture, association, joint-stock company, trust, unincorporated
organization, limited liability corporation or government or any
agency or political subdivision thereof.
<PAGE>
"Predecessor Security" of any particular Security means
every previous Security evidencing all or a portion of the same debt
as that evidenced by such particular Security; and, for the purposes
of this definition, any Security authenticated and delivered under
Section 306 in exchange for a mutilated security or in lieu of a lost,
destroyed or stolen Security shall be deemed to evidence the same debt
as the mutilated, lost, destroyed or stolen Security.
"Redemption Date", when used with respect to any Security to
be redeemed, in whole or in part, means the date fixed for such
redemption by or pursuant to this Indenture.
"Redemption Price", when used with respect to any Security
to be redeemed, means the price specified in the Security at which it
is to be redeemed pursuant to this Indenture.
"Registered Security" shall mean any Security which is
registered in the Security Register.
"Regular Record Date" for the interest payable on any
Security on any Interest Payment Date means the date specified in such
Security as the Regular Record Date.
"Representative" means the trustee, agent or representative
expressly authorized to act in such capacity, if any, for an issue of
Senior Debt.
"Responsible Officer", when used with respect to the
Trustee, means the chairman or any vice-chairman of the board of
directors, the chairman or any vice- chairman of the executive
committee of the board of directors, the chairman of the trust
committee, the president, any vice president, the secretary, any
assistant secretary, the treasurer, any assistant treasurer, the
cashier, any assistant cashier, any trust officer or assistant trust
officer, the controller or any assistant controller or any other
officer of the Trustee duly authorized and customarily performing
functions similar to those performed by any of the above-designated
officers, and also means, with respect to a particular corporate trust
matter, any other duly authorized officer to whom such matter is
referred because of his knowledge of and familiarity with the
particular subject.
"Securities Act" means the Securities Act of 1933.
" Security" or "Securities" means any note or notes, bond or
bonds, debenture or debentures, or any other evidences of
indebtedness, as the case may be, of any series authenticated and
delivered from time to time under this Indenture.
"Security Register" and "Security Registrar" have the
respective meanings specified in Section 305.
"Senior Debt" of the Company shall have the meaning set
forth in a supplemental indenture.
"Senior Subordinated Debt" of the Company means the
Securities and any other subordinated Debt of the Company that
specifically provides that such Debt is to
<PAGE>
rank pari passu with the Securities and is not subordinated by its
terms to any other subordinated Debt or other obligation of the
Company which is not Senior Debt.
"Special Record Date" for the payment of any Defaulted
Interest means a date fixed by the Trustee pursuant to Section 307.
"Stated Maturity" when used with respect to any Security or
any installment of principal thereof or interest thereon means the
date specified in such Security as the fixed date on which the
principal of such Security or such installment of principal or
interest is due and payable.
"Subsidiary" means, with respect to any Person, unless
otherwise specified in a supplemental indenture, (i) any corporation
more than 50% of the outstanding shares of Voting Stock of which is
owned, directly or indirectly, by such Person, or by one or more other
Subsidiaries of such Person, or by such Person and one or more other
Subsidiaries of such Person, (ii) any general partnership, joint
venture or similar entity, more than 50% of the outstanding
partnership or similar interests of which are owned, directly or
indirectly, by such Person, or by one or more other Subsidiaries of
such Person, or by such Person and one or more other Subsidiaries of
such Person and (iii) any limited partnership of which such Person or
any Subsidiary of such Person is a general partner.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act
of 1939, as amended by the Trust Indenture Reform Act of 1990, as in
force at the date as of which this instrument was executed except as
provided in Section 905.
"Trust Officer" means any officer within the Corporate Trust
Administration department of the Trustee (or any successor group of
the trustee) with direct responsibility for the administration of this
Indenture and also means, with respect to a particular corporate trust
matter, any other officer to whom such matter is referred because of
his knowledge of and familiarity with the particular subject.
"Trustee" means the Person named as the Trustee in the first
paragraph of this instrument until a successor Trustee shall have
become such pursuant to the applicable provisions of this Indenture,
and thereafter "Trustee" shall mean and include each Person who is
then a Trustee hereunder. If at any time there is more than one such
Person, "Trustee" as used with respect to the Securities of any series
shall mean the Trustee with respect to Securities of that series.
"U.S. Government Obligations" means, unless otherwise
specified in a supplemental indenture, (x) securities that are (i)
direct obligations of the United States of America for the payment of
which the full faith and credit of the United States of America is
pledged or (ii) obligations of a Person controlled or supervised by
and acting as an agency or instrumentality of the United States of
America the payment of which is unconditionally guaranteed as a full
faith and credit obligation by the United States of America, which
securities, in either case under clause (i) or (ii) above, are not
callable or redeemable at the option of the issuer thereof, and (y)
depository receipts issued by a bank (as defined in Section 3(a)(2) of
the Securities Act) as custodian with respect to any U.S. Government
Obligation that is specified in clause (x) above and held by such bank
for the account of the holder of such depository receipt, or with
respect to any specific payment of principal or interest on any U.S.
Government Obligation that is so specified
<PAGE>
and held, provided that (except as required by law) such custodian is
not authorized to make any deduction from the amount payable to the
holder of such depository receipt from any amount received by the
custodian in respect of the U.S. Government Obligation or the specific
payment of principal or interest of the U.S. Government Obligation
evidenced by such depository receipt.
"Vice President", when used with respect to the Company or
the Trustee, means any vice president, whether or not designated by a
number or a word or words added before or after the title "vice
president".
"Voting Stock" means, with respect to any Person, securities
of any class or classes of capital stock in such Person entitling the
holders thereof (whether at all times or at the times that such class
of capital stock has voting power by reason of the happening of any
contingency) to vote in the election of members of the board of
directors or comparable body of such Person.
SECTION 102. Compliance Certificates and Opinions.
Upon any application or request by the Company to the
Trustee to take any action under any provision of this Indenture, the
Company shall furnish to the Trustee an Officers' Certificate stating
that all conditions precedent, if any, provided for in this Indenture
(including any covenant compliance with which constitutes a condition
precedent) relating to the proposed action have been complied with and
an Opinion of Counsel stating that in the opinion of such counsel all
such conditions precedent, if any, have been complied with, except
that in the case of any such application or request as to which the
furnishing of such documents is specifically required by any provision
of this Indenture relating to such particular application or request,
no additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with
a condition or covenant provided for in this Indenture (other than
pursuant to Section 1004) shall include:
(1) a statement that each individual signing such
certificate or opinion has read such covenant or condition
and the definitions herein relating thereto;
(2) a brief statement as to the nature and scope of
the examination or investigation upon which the statements
or opinions contained in such certificate or opinion are
based;
(3) a statement that, in the opinion of each such
individual, he has made such examination or investigation as
is necessary to enable him to express an informed opinion as
to whether or not such covenant or condition has been
complied with; and
(4) a statement as to whether, in the opinion of each
such individual, such condition or covenant has been
complied with.
<PAGE>
SECTION 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be
certified by, or covered by an opinion of, any specified Person, it is
not necessary that all such matters be certified by, or covered by the
opinion of, only one such Person, or that they be so certified or
covered by only one document, but one such Person may certify or give
an opinion with respect to some matters and one or more other such
Persons as to other matters, and any such Person may certify or give
an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may
be based, insofar as it relates to legal matters, upon a certificate
or opinion of, or representations by, counsel, unless such officer
knows that the certificate or opinion or representations with respect
to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based,
insofar as it relates to factual matters, upon (x) a certificate or
opinion of, or representations by, an officer or officers of the
Company stating that the information with respect to such factual
matters is in the possession of the Company, unless such counsel knows
that the certificate or opinion or representations with respect to
such matters are erroneous or (y) one or more certificates of public
officials.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements,
opinions or other instruments under this Indenture, they may, but need
not, be consolidated and form one instrument.
SECTION 104. Acts of Holders.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given
or taken by Holders or Holders of any series may be embodied in and
evidenced by one or more instruments of substantially similar tenor
signed by such Holders in person or by agents duly appointed in
writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are
delivered to the Trustee and, where it is hereby expressly required,
to the Company. If any Securities are denominated in coin or currency
other than that of the United States, then for the purposes of
determining whether the Holders of the requisite principal amount of
Securities have taken any action as herein described, the principal
amount of such Securities shall be deemed to be that amount of United
States dollars that could be obtained for such principal amount on the
basis of the spot rate of exchange into United States dollars for the
currency in which such Securities are denominated (as evidenced to the
Trustee by an Officers' Certificate) as of the date the taking of such
action by the Holders of such requisite principal amount is evidenced
to the Trustee as provided in the immediately preceding sentence. Such
instrument or instruments (and the action embodied therein and
evidenced thereby) are herein sometimes referred to as the "Act" of
the Holders signing such instrument or instruments. Proof of execution
of any such instrument or of a writing appointing any such agent shall
be sufficient for any purpose of this Indenture and conclusive in
favor of the Trustee and the Company, if made in the manner provided
in this Section.
(b) The fact and date of the execution by any Person of any
such instrument or writing may be proved by the affidavit of a witness
of such execution or by a certificate of a notary public or other
officer authorized by law to take
<PAGE>
acknowledgments of deeds, certifying that the individual signing such
instrument or writing acknowledged to him the execution thereof. Where
such execution is by a signer acting in a capacity other than his
individual capacity, such certificate or affidavit shall also
constitute sufficient proof of authority. The fact and date of the
execution of any such instrument or writing, or the authority of the
Person executing the same, may also be proved in any other manner that
the Trustee deems sufficient.
(c) The principal amount and serial numbers of Securities
held by any Person, and the date of holding the same, shall be proved
by the Security Register.
(d) If the Company shall solicit from the Holders of
Securities any request, demand, authorization, direction, notice,
consent, waiver or other Act, the Company may, at its option, by or
pursuant to a Board Resolution, fix in advance a record date for the
determination of Holders entitled to give such request, demand,
authorization, direction, notice, consent, waiver or other Act, but
the Company shall have no obligation to do so. Notwithstanding TIA
Section 316(c), such record date shall be the record date specified in
or pursuant to such Board Resolution, which shall be a date not
earlier than the date 30 days prior to the first solicitation of
Holders generally in connection therewith and not later than the date
such solicitation is completed. If such a record date is fixed, such
request, demand, authorization, direction, notice, consent, waiver or
other Act may be given before or after such record date, but only the
Holders of record at the close of business on such record date shall
be deemed to be Holders for the purposes of determining whether
Holders of the requisite proportion of Securities Outstanding have
authorized or agreed or consented to such request, demand,
authorization, direction, notice, consent, waiver or other Act, and
for that purpose the Securities Outstanding shall be computed as of
such record date; provided that no such authorization, agreement or
consent by the Holders on such record date shall be deemed effective
unless it shall become effective pursuant to the provisions of this
Indenture not later than eleven months after the record date.
(e) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Security shall bind
every future Holder of the same Security and the Holder of every
Security issued upon the registration of transfer thereof or in
exchange therefor or in lieu thereof in respect of anything done,
omitted or suffered to be done by the Trustee, any Paying Agent or the
Company in reliance thereon, whether or not notation of such action is
made upon such Security.
SECTION 105. Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice,
consent, waiver or Act of Holders or other document provided or
permitted by this Indenture to be made upon, given or furnished to, or
filed with,
(1) the Trustee by any Holder or by the Company
shall be sufficient for every purpose hereunder if made,
given, furnished or filed in writing to or with the Trustee
at its Corporate Trust Office, Attention: Corporate Trust
Department, or
(2) the Company by the Trustee or by any Holder
shall be sufficient for every purpose hereunder (unless
otherwise herein expressly provided) if in writing and
mailed, first-class postage prepaid, to the Company
addressed to it at
<PAGE>
the address of its principal office specified in the first
paragraph of this Indenture, or at any other address
previously furnished in writing to the Trustee by the
Company.
SECTION 106. Notice to Holders; Waiver.
Where this Indenture or any Security provides for notice of
any event to Holders by the Company or the Trustee, such notice shall
be sufficiently given (unless otherwise herein or in such Security
expressly provided) if in writing and mailed, first- class postage
prepaid, to each Holder affected by such event, at his address as it
appears in the Security Register, not later than the latest date, and
not earlier than the earliest date, prescribed for the giving of such
notice. In any case where notice to Holders is given by mail, neither
the failure to mail such notice, nor any defect in any notice so
mailed, to any particular Holder shall affect the sufficiency of such
notice with respect to other Holders. Any notice mailed to a Holder in
the manner herein prescribed shall be conclusively deemed to have been
received by such Holder, whether or not such Holder actually receives
such notice. Where this Indenture or any Security provides for notice
in any manner, such notice may be waived in writing by the Person
entitled to receive such notice, either before or after the event, and
such waiver shall be the equivalent of such notice. Waivers of notice
by Holders shall be filed with the Trustee, but such filing shall not
be a condition precedent to the validity of any action taken in
reliance upon such waiver.
In case by reason of the suspension of or irregularities in
regular mail service or by reason of any other cause, it shall be
impracticable to mail notice of any event to Holders when such notice
is required to be given pursuant to any provision of this Indenture,
then any manner of giving such notice as shall be satisfactory to the
Trustee shall be deemed to be a sufficient giving of such notice for
every purpose hereunder.
SECTION 107. Effect of Headings, Table of Contents and Recitals.
The Article and Section headings herein, the Table of
Contents and the Recitals are for convenience only and shall not
affect the construction hereof.
SECTION 108. Successors and Assigns.
All covenants and agreements in this Indenture by the
Company and the Trustee shall bind their respective successors and
assigns, whether so expressed or not.
SECTION 109. Separability Clause.
In case any provision in this Indenture or in the Securities
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
SECTION 110. Benefits of Indenture.
Nothing in this Indenture or in any Securities, express or
implied, shall give to any Person (other than the parties hereto, any
Paying Agent, any Security Registrar and their successors hereunder,
and the Holders) any benefit or any legal or
<PAGE>
equitable right, remedy or claim under this Indenture.
SECTION 111. Governing Law.
This Indenture shall be governed by and construed in
accordance with the law of the State of New York (without giving
effect to the conflict of laws principles thereof). The Trustee, the
Company, and (upon their acceptance of Securities) the Holders, agree
to submit to the non-exclusive jurisdiction of any United States
Federal or State court located in the Borough of Manhattan, in the
City of New York in any action or proceeding arising out of or
relating to this Indenture or the Securities. This Indenture is
subject to the provisions of the Trust Indenture Act that are required
to be part of this Indenture and shall, to the extent applicable, be
governed by such provisions.
SECTION 112. Legal Holidays.
In any case where any Interest Payment Date, date
established for the payment of Defaulted Interest, Redemption Date or
Stated Maturity or Maturity of any Securities shall not be a Business
Day, then (notwithstanding any other provision of this Indenture or of
the Securities) payment of principal (or premium, if any) or interest
need not be made on such date, but may be made on the next succeeding
Business Day with the same force and effect as if made on the Interest
Payment Date, date established for the payment of Defaulted Interest,
Redemption Date, or at the Stated Maturity or Maturity; provided that
no interest shall accrue for the period from and after such Interest
Payment Date, date established for the payment of defaulted interest,
Redemption Date, Stated Maturity or Maturity, as the case may be.
SECTION 113. No Recourse Against Others.
No recourse for the payment of the principal of, or premium,
if any, or interest on, any Security or for any claim based thereon or
otherwise in respect thereof, and no recourse under or upon any
obligation, covenant or agreement of the Company in this Indenture or
in any Security, or because of the creation of any Debt represented
thereby, shall be had against any incorporator, stockholder, officer,
director, employee, controlling person of the Company or of a
Subsidiary of the Company or of any successor Person of the Company or
of a Subsidiary of the Company. Each Holder by accepting any Security
waives and releases all such liability, and such waiver and release is
part of the consideration for the issuance of such Security.
SECTION 114. Exhibits and Schedules.
All exhibits and schedules attached hereto are by this
reference made a part hereof with the same effect as if herein set
forth in full.
SECTION 115. Counterparts.
This Indenture may be executed in any number of
counterparts, each of which shall be an original; but such
counterparts shall together constitute but one and the same
instrument.
SECTION 116. Judgment Currency. The Company agrees, to the
fullest extent that it may effectively do so under applicable law,
that (a) if for the purpose of
<PAGE>
obtaining judgment in any court it is necessary to convert the sum due
in respect of the principal of, or premium or interest, if any, on the
Securities of any series (the "Required Currency") into a currency in
which a judgment will be rendered (the "Judgment Currency"), the rate
of exchange used shall be the rate at which in accordance with normal
banking procedures the Trustee could purchase in the City of New York
the Required Currency with the Judgment Currency on the New York
Banking Day (as defined below) preceding that on which final
unappealable judgment is given and (b) its obligations under this
Indenture to make payments in the Required Currency (i) shall not be
discharged or satisfied by any tender, or any recovery pursuant to any
judgment (whether or not entered in accordance with subsection (a)),
in any currency other than the Required Currency, except to the extent
that such tender or recovery shall result in the actual receipt, by
the payee, of the full amount of the Required Currency expressed to be
payable in respect of such payments, (ii) shall be enforceable as an
alternative or additional cause of action for the purpose of
recovering in the Required Currency the amount, if any, by which such
actual receipt shall fall short of the full amount of the Required
Currency so expressed to be payable and (iii) shall not be affected by
judgment being obtained for any other sum due under this Indenture.
For purposes of the foregoing, "New York Banking Day" means any day
except a Saturday, Sunday or a legal holiday in the City of New York
or a day on which banking institutions in the City of New York are
authorized or required by law or executive order to close.
SECTION 117. 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 118. Incorporation by Reference of TIA.
Whenever this Indenture refers to a provision of the TIA,
the provision is incorporated by reference in, and made a part of,
this Indenture. Any terms incorporated by reference in this Indenture
that are defined by the TIA, defined by TIA reference to another
statute or defined by Commission rule under the TIA, have the meanings
so assigned to them therein.
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally.
The Securities shall have such appropriate insertions,
omissions, substitutions and other variations as are required or
permitted by this Indenture and may have such letters, numbers or
other marks of identification and such legends or endorsements placed
thereon, as may be required to comply with applicable laws or
regulations or with the rules of any securities exchange, or as may,
consistently herewith, be determined by the officers executing such
Securities, as evidenced by their execution of the Securities. Any
portion of the text of any Security may be set forth on the reverse
thereof, with an appropriate reference thereto on the face of the
Security.
<PAGE>
The definitive Securities shall be printed, lithographed or
engraved or produced by any combination of these methods on steel
engraved borders or may be produced in any other manner, all as
determined by the officers executing such Securities, as evidenced by
their execution of such Securities, subject, with respect to the
Securities of any series, to the rules of any securities exchange on
which such Securities are listed.
SECTION 202. Forms of Securities.
Each Security shall be in one of the forms approved
from time to time by or pursuant to a Board Resolution, or established
in one or more indentures supplemental hereto. Prior to the delivery
of a Security to the Trustee for authentication in any form approved
by or pursuant to a Board Resolution, the Company shall deliver to the
Trustee the Board Resolution by or pursuant to which such form of
Security has been approved, which Board Resolution shall have attached
thereto a true and correct copy of the form of Security which has been
approved thereby or, if a Board Resolution authorizes a specific
officer or officers to approve a form of Security, a certificate of
such officer or officers approving the form of Security attached
thereto. Any form of Security approved by or pursuant to a Board
Resolution must be acceptable as to form to the Trustee, such
acceptance to be evidenced by the Trustee's authentication of
Securities in that form or a certificate signed by a Responsible
Officer of the Trustee and delivered to the Company.
SECTION 203. Form of Trustee's Certificate of Authentication.
The form of Trustee's Certificate of Authentication for any
Security issued pursuant to this Indenture shall be substantially as
follows:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
FIRST UNION NATIONAL BANK,
as Trustee,
Dated: By:
--------------- ---------------------
Authorized Signatory
SECTION 204. Securities Issuable in the Form of a Global Security.
(a) If the Company shall establish pursuant to
Sections 202 and 301 that the Securities of a particular
series are to be issued in whole or in part in the form of
one or more Global Securities, then the Company shall
execute and the Trustee or its agent shall, in accordance
with Section 303 and the Company Request delivered to the
Trustee or its agent thereunder, authenticate and deliver,
such Global Security or Securities, which (i) shall
represent, and shall be denominated in an amount equal to
the aggregate principal amount of, the Outstanding
Securities of such series to be represented by such Global
Security or Securities,
<PAGE>
or such portion thereof as the Company shall specify in a
Company Request, (ii) shall be registered in the name of the
Depositary for such Global Security or Securities or its
nominee, (iii) shall be delivered by the Trustee or its agent
to the Depositary or pursuant to the Depositary's instruction
and (iv) shall bear a legend substantially to the following
effect: "Unless and until it is exchanged in whole or in part
for the individual Securities represented hereby, this Global
Security may not be transferred except as a whole by the
Depositary to a nominee of the Depositary or by a nominee of
the Depositary to the Depositary or another nominee of the
Depositary or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor
Depositary."
(b) Notwithstanding any other provisions of this
Section 204 or of Section 305, and subject to the provisions
of paragraph (c) below, unless the terms of a Global Security
expressly permit such Global Security to be exchanged in
whole or in part for individual Securities, a Global Security
may be transferred, in whole but not in part and in the
manner provided in Section 305, only to a nominee of the
Depositary for such Global Security, or to the Depositary, or
a successor Depositary for such Global Security selected or
approved by the Company, or to a nominee of such successor
Depositary.
(c) (i) If at any time the Depositary for a Global
Security notifies the Company that it is unwilling or unable
to continue as Depositary for such Global Security or if at
any time the Depositary for the Securities for such series
ceases to be a clearing agency registered under the Exchange
Act or other applicable statute or regulation, the Company
shall appoint a successor Depositary with respect to such
Global Security. If a successor Depositary for such Global
Security is not appointed by the Company within 90 days after
the Company receives such notice or becomes aware of such
ineligibility, the Company will execute, and the Trustee or
its agent, upon receipt of a Company Request for the
authentication and delivery of individual Securities of such
series in exchange for such Global Security, will
authenticate and deliver, individual Securities of such
series of like tenor and terms in an aggregate principal
amount equal to the principal amount of the Global Security
in exchange for such Global Security.
(ii) The Company may at any time and in its sole
discretion determine that the Securities of any series or
portion thereof issued or issuable in the form of one or more
Global Securities shall no longer be represented by such
Global Security or Securities. In such event the Company will
execute, and the Trustee, upon receipt of a Company Request
for the authentication and delivery of individual Securities
of such series in exchange in whole or in part for such
Global Security, will authenticate and deliver individual
Securities of such series of like tenor and terms in
definitive form in an aggregate principal amount equal to the
principal amount of such Global Security or Securities
representing such series or portion thereof in exchange for
such Global Security or Securities.
(iii) If specified by the Company pursuant to
Sections 202 and 301 with respect to Securities issued or
issuable in the form of a Global Security, the Depositary for
such Global Security may surrender such Global Security in
exchange in whole or in part for individual Securities of
such series of like tenor and terms in definitive form on
such terms as are acceptable to the Company and such
Depositary. Thereupon the Company shall execute, and the
Trustee or its
<PAGE>
agent shall authenticate and deliver, without service charge,
(1) to each Person specified by such Depositary a new
Security or Securities of the same series of like tenor and
terms and of any authorized denomination as requested by such
Person in aggregate principal amount equal to and in exchange
for such Person's beneficial interest in the Global Security;
and (2) to such Depositary a new Global Security of like
tenor and terms and in an authorized denomination equal to
the difference, if any, between the principal amount of the
surrendered Global Security and the aggregate principal
amount of Securities delivered to the Holders thereof.
(iv) In any exchange provided for in any of the
preceding three paragraphs, the Company will execute and the
Trustee or its agent will authenticate and deliver individual
Securities in definitive registered form in authorized
denominations. Upon the exchange of the entire principal
amount of a Global Security for individual Securities, such
Global Security shall be canceled by the Trustee or its
agent. Except as provided in the preceding paragraph,
Securities issued in exchange for a Global Security pursuant
to this Section shall be registered in such names and in such
authorized denominations as the Depositary for such Global
Security, pursuant to instructions from its direct or
indirect participants or otherwise, shall instruct the
Trustee or the Security Registrar. The Trustee or the
Security Registrar shall deliver such Securities to the
Persons in whose names such Securities are so registered.
ARTICLE THREE
THE SECURITIES
SECTION 301. Title and Terms.
The aggregate principal amount of Securities that may be
authenticated and delivered and Outstanding under this Indenture is
not limited.
The Securities may be issued in one or more series up to an
aggregate principal amount of Securities as from time to time may be
authorized by the Board of Directors. All Securities of each series
under this Indenture shall in all respects be equally and ratably
entitled to the benefits hereof with respect to such series without
preference, priority or distinction on account of the actual time of
the authentication and delivery or Stated Maturity of the Securities
of such series.
Each series of Securities shall be created either by or
pursuant to a Board Resolution or by or pursuant to an indenture
supplemental hereto. The Securities of each such series may bear such
date or dates, be payable at such place or places, have such Stated
Maturity or Maturities, be issuable at such premium over or discount
from their face value, bear interest at such rate or rates (which may
be fixed or floating), from such date or dates, payable in such
installments and on such dates and at such place or places to the
Holders of Securities registered as such on such Regular Record Dates,
or may bear no interest, and may be redeemable or repayable at such
Redemption Price or Prices, whether at the option of the Holder or
otherwise, and upon such terms, all as shall be provided for in or
pursuant to the Board Resolution or in or pursuant to the supplemental
<PAGE>
indenture creating that series. There may also be established in or
pursuant to a Board Resolution or in or pursuant to a supplemental
indenture prior to the issuance of Securities of each such series,
provision for:
(1) the exchange or conversion of the Securities
of that series, at the option of the Company or the Holders
thereof, for or into new Securities of a different series or
other securities or other property of the Company or another
Person, including shares of capital stock of the Company or
any subsidiary of the Company or of any other Person or
securities directly or indirectly convertible into or
exchangeable for any such shares;
(2) a sinking or purchase fund or other mandatory
redemption or other analogous obligation;
(3) if other than U.S. dollars, the currency or
currencies or units based on or related to currencies in
which the Securities of such series shall be denominated and
in which payments of principal of, and any premium, interest
and Additional Amounts on, such Securities shall or may be
payable;
(4) if the principal of (and premium, if any) or
interest, if any, on the Securities of such series are to be
payable, at the election of the Company or a holder thereof,
in a currency or currencies or units based on or related to
currencies other than that in which the Securities are stated
to be payable, the period or periods within which, and the
terms and conditions upon which, such election may be made;
(5) if the amount of payments of principal of (and
premium, if any) or interest, if any, on the Securities of
such series may be determined with reference to an index
based on (i) a currency or currencies or units based on or
related to currencies other than that in which the Securities
are stated to be payable, (ii) changes in the price of one or
more other securities or groups or indexes of securities or
(iii) changes in the prices of one or more commodities or
groups or indexes of commodities, or any combination of the
foregoing, the manner in which such amounts shall be
determined;
(6) if the aggregate principal amount of the
Securities of that series is to be limited, such limitations,
and the maturity date of the principal amount of the
Securities of that series (which may be fixed or extendible),
and the rate or rates (which may be fixed or floating) per
annum at which the Securities of that series will bear
interest, if any, or the method of determining such rate or
rates, and the payment dates and record dates relating to
such interest payments;
(7) the exchange of Securities of that series, at
the option of the Holders thereof, for other Securities of
the same series of the same aggregate principal amount of a
different authorized kind or different authorized
denomination or denominations, or both;
(8) the appointment by the Trustee of an
Authenticating Agent in one or more places other than the
location of the office of the Trustee with power to act on
behalf of the Trustee and subject to its direction in the
authentication and delivery of the Securities of any one or
more series in connection with such
<PAGE>
transactions as shall be specified in the provisions of this
Indenture or in or pursuant to the Board Resolution or the
supplemental indenture creating such series;
(9) the percentage of their principal amount at
which such Securities will be issued, and the portion of the
principal amount of Securities of the series, if other than
the total principal amount thereof, which shall be payable
upon declaration of acceleration of the Maturity thereof
pursuant to Section 502 or provable in bankruptcy pursuant to
Section 504;
(10) any Event of Default with respect to the
Securities of such series, if not set forth herein and any
additions, deletions or other changes to the Events of
Default set forth herein or to any provision of Article Five
that shall be applicable to the Securities of such series
(including a provision making any Event of Default set forth
herein inapplicable to the Securities of that series);
(11) any covenant solely for the benefit of the
Securities of such series and any additions, deletions or
other changes to the provisions of Article Ten or any
definitions relating to such Article that shall be applicable
to the Securities of such series (including a provision
making any Section of such Article inapplicable to the
Securities of such series);
(12) changes as to definitions contained herein,
whether or not contemplated by such definition;
(13) if the Securities of the series shall be issued
in whole or in part in the form of a Global Security or
Global Securities, the terms and conditions, if any, upon
which such Global Security or Global Securities may be
exchanged in whole or in part for other individual
Securities; and the Depositary for such Global Security or
Global Securities (if other than the Depositary specified in
Section 101 hereof);
(14) the subordination of the Securities of such
series to any other indebtedness of the Company, including
without limitation, the Securities of any other series;
(15) the applicability, if any, of Sections 1202 or
1203 to the Securities of the series and any provisions in
modification of, in addition to or in lieu of any of the
provisions of Article Twelve;
(16) the issuance of Securities, even though such
Securities are not registered under the Securities Act, with
or without provisions for the exchange for securities so
registered or other similar or related provisions;
(17) securing the Securities;
(18) adding guarantors to the Securities and the
terms relating thereto including with respect to any
subordination thereof;
(19) modifying the provisions of Articles Eight and
Nine;
<PAGE>
(20) whether Securities of the series are to be
issuable as Registered Securities, Bearer Securities (with or
without coupons) or both, any restrictions applicable to the
offer, sale or delivery of Bearer Securities and the terms
upon which Bearer Securities of the series may be exchanged
for Registered Securities of the series and vice versa (if
permitted by applicable laws and regulations);
(21) adding to or modifying the terms governing
redemption of the Securities; and
(22) any other terms of the series, which shall not
be inconsistent with the provisions of this Indenture, all
upon such terms as may be determined in or pursuant to a
Board Resolution or in or pursuant to a supplemental
indenture with respect to such series.
All Securities of the same series shall be substantially
identical in tenor and effect, except as to denomination.
The form of the Securities of each series shall be
established pursuant to the provisions of this Indenture in or
pursuant to the Board Resolution or in or pursuant to the supplemental
indenture creating such series. The Securities of each series shall be
distinguished from the Securities of each other series in such manner,
reasonably satisfactory to the Trustee, as the Board of Directors may
determine.
Unless otherwise provided with respect to Securities of a
particular series, the Securities of any series may only be issuable
in registered form, without coupons.
Any terms or provisions in respect of the Securities of any
series issued under this Indenture may be determined pursuant to this
Section by providing in a Board Resolution or supplemental indenture
for the method by which such terms or provisions shall be determined.
SECTION 302. Denominations.
The Securities of each series shall be issuable in such
denominations and currency as shall be provided in the provisions of
this Indenture or in or pursuant to the Board Resolution or the
supplemental indenture creating such series. In the absence of any
such provisions with respect to the Securities of any series, the
Securities of that series shall be issuable only in fully registered
form in denominations of $1,000 and any integral multiple thereof.
SECTION 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the
Company by its Chairman, its President or a Vice President and
attested by its Secretary or an Assistant Secretary. The signature of
any of these officers on the Securities may be manual or facsimile
signatures of the present or any future such authorized officer and
may be imprinted or otherwise reproduced on the Securities.
Securities bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company
shall bind the Company, notwithstanding that such individuals or any
of them have ceased to hold such offices
<PAGE>
prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities
executed by the Company to the Trustee for authentication, together
with a Company Order for the authentication and delivery of such
Securities, and the Trustee in accordance with such Company Order
shall; and the Trustee shall, upon Company Order, authenticate and
make available for delivery such Securities as in this Indenture
provided and not otherwise.
Prior to any such authentication and delivery, the Trustee
shall be entitled to receive, in addition to any Officers' Certificate
and Opinion of Counsel required to be furnished to the Trustee
pursuant to Section 102, and the Board Resolution and any certificate
relating to the issuance of the series of Securities required to be
furnished pursuant to Section 202, an Opinion of Counsel to the effect
that:
(1) all instruments furnished to the Trustee conform
to the requirements of the Indenture and constitute
sufficient authority hereunder for the Trustee to
authenticate and deliver such Securities;
(2) the form and terms (or in connection with the
issuance of medium-term Securities under Section 311, the
manner of determining the terms) of such Securities have been
established in conformity with the provisions of this
Indenture;
(3) all laws and requirements with respect to the
execution and delivery by the Company of such Securities have
been complied with, the Company has the corporate power to
issue such Securities and such Securities have been duly
authorized and delivered by the Company and, assuming due
authentication and delivery by the Trustee, constitute legal,
valid and binding obligations of the Company enforceable in
accordance with their terms (subject, as to enforcement of
remedies, to applicable bankruptcy, reorganization,
insolvency, fraudulent conveyance, moratorium or other laws
and legal principles affecting creditors' rights generally
from time to time in effect and to general equitable
principles, whether applied in an action at law or in equity)
and entitled to the benefits of this Indenture, equally and
ratably with all other Securities, if any, of such series
Outstanding; and
(4) such other matters as the Trustee may reasonably
request; and, if the authentication and delivery relates to a
new series of Securities created by an indenture supplemental
hereto, also stating that all laws and requirements with
respect to the form and execution by the Company of the
supplemental indenture with respect to that series of
Securities have been complied with, the Company has corporate
power to execute and deliver any such supplemental indenture
and has taken all necessary corporate action for those
purposes and any such supplemental indenture has been
executed and delivered and constitutes the legal, valid and
binding obligation of the Company enforceable in accordance
with its terms (subject, as to enforcement of remedies, to
applicable bankruptcy, reorganization, insolvency, fraudulent
conveyance, moratorium or other laws and legal principles
affecting creditors' rights generally from time to time in
effect
<PAGE>
and to general equitable principles, whether applied in an
action at law or in equity).
The Trustee shall not be required to authenticate such
Securities if the issue thereof will adversely affect the Trustee's
own rights, duties or immunities under the Securities and this
Indenture.
Unless otherwise provided in the form of Security for any
series, all Securities shall be dated the date of their
authentication.
No Security shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there
appears on such Security a certificate of authentication substantially
in the form provided for herein executed by the Trustee by manual
signature of an authorized officer, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that
such Security has been duly authenticated and delivered hereunder and
is entitled to the benefits of this Indenture.
SECTION 304. Temporary Securities.
Pending the preparation of definitive Securities of any
series, the Company may execute, and, upon receipt of the documents
required by Section 303, together with a Company Order, the Trustee
shall authenticate and deliver, temporary Securities which are
printed, lithographed, typewritten, mimeographed or otherwise
produced, in any authorized denomination, substantially of the tenor
of the definitive Securities in lieu of which they are issued and with
such appropriate insertions, omissions, substitutions and other
variations as the officers executing such Securities may determine, as
conclusively evidenced by their execution of such Securities.
If temporary Securities of any series are issued, the
Company will cause definitive Securities of such series to be prepared
without unreasonable delay. After the preparation of definitive
Securities, the temporary Securities of such series shall be
exchangeable for definitive Securities of such series upon surrender
of the temporary Securities of such series at the office or agency of
the Company designated for such purpose pursuant to Section 1002,
without charge to the Holder. Upon surrender for cancelation of any
one or more temporary Securities the Company shall execute and the
Trustee shall authenticate and deliver in exchange therefor a like
principal amount of definitive Securities of such series of authorized
denominations and of like tenor and terms. Until so exchanged, the
temporary Securities of such series shall in all respects be entitled
to the same benefits under this Indenture as definitive Securities of
such series.
SECTION 305. Registration, Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trust
Office of the Trustee a register (the register maintained in such
office and in any other office or agency designated pursuant to
Section 1002 (being herein sometimes referred to as the "Security
Register") in which, subject to such reasonable regulations as it may
prescribe, the Company shall provide for the registration of
Securities, or of Securities of a particular series, and for transfers
of Securities or of Securities of such series. Any such register shall
be in written form or any other form capable of being converted into
written form within a reasonable time. At all reasonable times the
information contained in such register or registers shall be available
for inspection by the Trustee. The Trustee is
<PAGE>
hereby initially appointed as security registrar (the "Security
Registrar") for the purpose of registering Securities and transfers of
Securities as herein provided. The Company may at any time and from
time to time authorize any Person to act as Security Register in place
of the Trustee with respect to any series of Securities issued under
this Indenture.
Subject to Section 204, upon surrender for transfer of any
Security of any series, upon surrender for registration of transfer of
any Security at the office or agency of the Company designated
pursuant to Section 1002, the Company shall execute, and the Trustee
shall authenticate and deliver, in the name of the designated
transferee or transferees, one or more new Securities of such series
of any authorized denomination or denominations of a like aggregate
principal amount and Stated Maturity and of like tenor and terms.
Subject to Section 204, at the option of the Holder,
Securities of any series may be exchanged for other Securities of such
series of any authorized denominations and of a like aggregate
principal amount and Stated Maturity and of like tenor and terms, upon
surrender of the Securities to be exchanged at such office or agency.
Whenever any Securities are so surrendered for exchange, the Company
shall execute, and the Trustee shall authenticate and deliver, the
Securities that the Holder making the exchange is entitled to receive.
All Securities issued upon any registration of transfer or
exchange of Securities shall be the valid obligations of the Company,
evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Securities surrendered upon such registration of
transfer or exchange.
Every Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company or the
Security Registrar) be duly endorsed, or be accompanied by a written
instrument of transfer in the form attached to the Security or
otherwise satisfactory to the Company and the Security Registrar, duly
executed, by the Holder thereof or his attorney duly authorized in
writing.
Unless otherwise provided in the Security to be transferred
or exchanged, no service charge shall be made for any registration of
transfer or exchange or redemption of Securities, but the Company may
(unless otherwise provided in such Security) require payment of a sum
sufficient to cover any tax or other governmental charge that may be
imposed in connection with any registration of transfer or exchange of
Securities, other than exchanges pursuant to Section 304, 906 or 1107
not involving any transfer.
The Company shall not be required (i) to issue, register the
transfer of or exchange any Security of any series during a period
beginning at the opening of business 15 days before the day of the
mailing of a notice of redemption of Securities of such series
selected for redemption under Section 1103 and ending at the close of
business on the day of such mailing of the relevant notice of
redemption, or (ii) to register the transfer of or exchange any
Security so selected for redemption in whole or in part, except the
unredeemed portion of any Security being redeemed in part.
None of the Company, the Trustee, any agent of the Trustee,
any Paying Agent or the Security Registrar will have any
responsibility or liability for any aspect of the records relating to
or payments made on account of beneficial ownership interests of
<PAGE>
a Global Security or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interests.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.
If (i) any mutilated Security is surrendered to the Trustee,
or (ii) the Company and the Trustee receive evidence to their
satisfaction of the destruction, loss or theft of any Security, and
there is delivered to the Company and the Trustee such security or
indemnity as may be required by them to save each of them harmless,
then, in the absence of notice to the Company or the Trustee that such
Security has been acquired by a bona fide purchaser, the Company shall
execute and upon Company Order the Trustee shall authenticate and
deliver, in exchange for any such mutilated Security or in lieu of any
such destroyed, lost or stolen Security, a replacement Security of
like tenor, series, Stated Maturity and principal amount, bearing a
number not contemporaneously Outstanding.
In case any such mutilated, destroyed, lost or stolen
Security has become or is about to become due and payable, the Company
in its discretion may, instead of issuing a replacement Security, pay
such Security.
Upon the issuance of any replacement Security under this
Section, the Company may require the payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in
relation thereto and any other expenses (including the fees and
expenses of the Trustee) connected therewith.
Every replacement Security issued pursuant to this Section
in lieu of any destroyed, lost or stolen Security shall constitute an
original additional contractual obligation of the Company, whether or
not the destroyed, lost or stolen Security shall be at any time
enforceable by anyone, and shall be entitled to all benefits of this
Indenture equally and proportionately with any and all other
Securities of the same series duly issued hereunder.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with
respect to the replacement or payment of mutilated, destroyed, lost or
stolen Securities.
SECTION 307. Payment of Interest; Interest Rights Preserved.
Unless otherwise provided with respect to such Security
pursuant to Section 301, interest on any Security which is payable,
and is punctually paid or duly provided for, on any Interest Payment
Date shall be paid to the Person in whose name that Security (or one
or more Predecessor Securities) is registered at the close of business
on the Regular Record Date for such interest at the office or agency
of the Company maintained for such purpose pursuant to Section 1002;
provided, however, that each installment of interest may at the
Company's option be paid by (i) mailing a check for such interest,
payable to or upon the written order of the Person entitled thereto
pursuant to Section 308, to the address of such Person as it appears
in the Security Register or (ii) transfer to an account located in the
United States maintained by the payee.
Any interest on any Security that is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date
shall forthwith cease to be payable to
<PAGE>
the Holder on the Regular Record Date by virtue of having been such
Holder, and such defaulted interest and (to the extent lawful)
interest on such defaulted interest at the rate borne by the
Securities (such defaulted interest and interest thereon herein
collectively called "Defaulted Interest") may be paid by the Company,
at its election in each case, as provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any
Defaulted Interest to the Persons in whose names any such
Securities (or their respective Predecessor Securities) are
registered at the close of business on a Special Record Date
for the payment of such Defaulted Interest, which shall be
fixed in the following manner: The Company shall notify the
Trustee in writing of the amount of Defaulted Interest
proposed to be paid on each such Security and the date of the
proposed payment, and at the same time the Company shall
deposit with the Trustee an amount of money equal to the
aggregate amount proposed to be paid in respect of such
Defaulted Interest or shall make arrangements reasonably
satisfactory to the Trustee for such deposit prior to the
date of the proposed payment, such money when deposited to be
held in trust for the benefit of the Persons entitled to such
Defaulted Interest as in this clause (1) provided. Thereupon
the Trustee shall fix a Special Record Date for the payment
of such Defaulted Interest which shall be not more than 15
days and not less than 10 days prior to the date of the
proposed payment and not less than 10 days after the receipt
by the Trustee of the notice of the proposed payment. The
Trustee shall promptly notify the Company of such Special
Record Date and, in the name and at the expense of the
Company, shall cause notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor to be
given in the manner provided for in Section 106, not less
than 10 days prior to such Special Record Date notice of the
proposed payment of such Defaulted Interest and the Special
Record Date therefor having been so given, such Defaulted
Interest shall be paid to the Persons in whose names such
Securities (or their respective Predecessor Securities) are
registered at the close of business on such Special Record
Date and shall no longer be payable pursuant to the following
clause (2).
(2) The Company may make payment of any Defaulted
Interest in any other lawful manner not inconsistent with the
requirements of any securities exchange on which such
Securities may be listed, and upon such notice as may be
required by such exchange, if, after notice given by the
Company to the Trustee of the proposed payment pursuant to
this clause, such manner of payment shall be deemed
practicable by the Trustee.
If any installment of interest the Stated Maturity of which
is on or prior to the Redemption Date for any Security called for
redemption pursuant to Article Eleven is not paid or duly provided for
on or prior to the Redemption Date in accordance with the foregoing
provisions of this Section, such interest shall be payable as part of
the Redemption Price of such Securities.
Subject to the foregoing provisions of this Section, each
Security delivered under this Indenture upon registration of transfer
of or in exchange for or in lieu of any other Security shall carry the
rights to interest accrued and unpaid, and to accrue, that were
carried by such other Security.
<PAGE>
SECTION 308. Persons Deemed Owners.
Prior to and at the time of the due presentment of a
Security for registration of transfer, the Company, the Trustee and
any agent of the Company or the Trustee may treat the Person in whose
name any Security is registered in the Security Register as the owner
of such Security for the purpose of receiving payment of principal of
(and premium, if any), and (subject to Section 307) interest on such
Security and for all other purposes whatsoever, whether or not such
Security be overdue, and none of the Company, the Trustee or any agent
of the Company or the Trustee shall be affected by notice to the
contrary.
SECTION 309. Cancelation.
All Securities surrendered for payment, redemption,
registration of transfer, conversion or exchange or credit against a
sinking fund shall, if surrendered to any Person other than the
Trustee, be delivered to the Trustee and shall be promptly canceled by
it. The Company may at any time deliver to the Trustee for cancelation
any Securities previously authenticated and delivered hereunder that
the Company may have acquired in any manner whatsoever, and may
deliver to the Trustee (or to any other Person for delivery to the
Trustees) for cancelation any Securities previously authenticated
hereunder that the Company has not issued and sold, and all Securities
so delivered shall be promptly canceled by the Trustee. No Security
shall be authenticated in lieu of or in exchange for any Securities
canceled as provided in this Section, except as expressly permitted by
this Indenture. All canceled Securities held by the Trustee shall be
disposed of by the Trustee in accordance with its customary procedures
and certification of their disposal delivered to the Company unless by
Company Order the Company shall direct that canceled Securities be
returned to it. The Trustee shall provide the Company with a list of
all Securities that have been canceled from time to time as requested
by the Company.
SECTION 310. Computation of Interest.
Unless otherwise provided as contemplated in Section 301,
interest on the Securities shall be computed on the basis of a 360-day
year of twelve 30-day months.
SECTION 311. Medium-term Securities.
Notwithstanding any contrary provision herein, if all
Securities of a series are not to be originally issued at one time, it
shall not be necessary for the Company to deliver to the Trustee an
Officers' Certificate, Board Resolution, supplemental indenture,
Opinion of Counsel or Company Request otherwise required pursuant to
Sections 202, 301 and 303 at or prior to the time of authentication of
each Security of such series if such documents are delivered to the
Trustee or its agent at or prior to the authentication upon original
issuance of the first Security of such series to be issued; provided
that any subsequent request by the Company to the Trustee to
authenticate Securities of such series upon original issuance shall
constitute a representation and warranty by the Company that as of the
date of such request, the statements made in the Officers' Certificate
delivered pursuant to Section 102 shall be true and correct as if made
on such date.
<PAGE>
An Officers' Certificate, supplemental indenture or Board
Resolution delivered by the Company to the Trustee in the
circumstances set forth in the preceding paragraph may provide that
Securities which are the subject thereof will be authenticated and
delivered by the Trustee or its agent on original issue from time to
time upon the telephonic or written order of persons designated in
such Officers' Certificate, Board Resolution or supplemental indenture
(any such telephonic instructions to be confirmed promptly in writing
by such persons) and that such persons are authorized to determine,
consistent with such Officers' Certificate, supplemental indenture or
Board Resolution, such terms and conditions of said Securities as are
specified in such Officers' Certificate, supplemental indenture or
Board Resolution.
SECTION 312. CUSIP Numbers.
The Company in issuing the Securities may use "CUSIP"
numbers (if then generally in use), and, if so, the Trustee shall use
"CUSIP" numbers in notices of redemption as a convenience to Holders;
provided that any such notice may state that no representation is made
as to the correctness of such numbers either as printed on the
Securities or as contained in any notice of a redemption and that
reliance may be placed only on the other identification numbers
printed on the Securities, and any such redemption shall not be
affected by any defect in or omission of such numbers. The Company
will promptly notify the Trustee of any change in the "CUSIP" numbers.
SECTION 313. Global Securities.
(a) Each Global Security authenticated under this
Indenture shall be registered in the name of the Depositary
designated by the Company for such Global Security or a
nominee thereof and delivered to such Depositary or a nominee
thereof or custodian therefor, and each such Global Security
shall constitute a single Security for all purposes of this
Indenture.
(b) Notwithstanding any other provision of this
Indenture, no Global Security may be exchanged in whole or in
part for Securities registered, and no transfer of a Global
Security in whole or in part may be registered, in the name
of any Person other than the Depositary for such Global
Security or a nominee thereof unless (i) such Depositary (A)
has notified the Company that it is unwilling or unable to
continue as Depositary for such Global Security or (B) has
ceased to be a clearing agency registered as such under the
Exchange Act or announces an intention permanently to cease
business or does in fact do so or (ii) there shall have
occurred and be continuing an Event of Default with respect
to such Global Security.
(c) If any Global Security is to be exchanged for
other Securities or canceled in whole, it shall be
surrendered by or on behalf of the Depositary or its nominee
to the Trustee, as Security Registrar, for exchange or
cancelation, as provided in this Article Three. If any Global
Security is to be exchanged for other Securities or canceled
in part, or if another Security is to be exchanged in whole
or in part for a beneficial interest in any Global Security,
in each case, as provided in Section 305, then either (i)
such Global Security shall be so surrendered for exchange or
cancelation, as provided in this Article Three or (ii) the
principal amount thereof shall be reduced or increased by an
amount equal to the portion thereof to be so exchanged or
canceled, or equal to the principal
<PAGE>
amount of such other Security to be so exchanged for a
beneficial interest therein, as the case may be, by means of
an appropriate adjustment made on the records of the Trustee,
as Security Registrar, whereupon the Trustee, in accordance
with the applicable procedures, shall instruct the Depositary
or its authorized representative to make a corresponding
adjustment to its records. Upon any such surrender or
adjustment of a Global Security, the Trustee shall, subject
to Section 305 and as otherwise provided in this Article
Three, authenticate and deliver any Securities issuable in
exchange for such Global Security (or any portion thereof) to
or upon the order of, and registered in such names as may be
directed by, the Depositary or its authorized representative.
Upon the request of the Trustee in connection with the
occurrence of any of the events specified in the preceding
paragraph, the Company shall promptly make available to the
Trustee a reasonable supply of Securities that are not in the
form of Global Securities. The Trustee shall be entitled to
rely upon any order, direction or request of the Depositary
or its authorized representative which is given or made
pursuant to this Article Three if such order, direction or
request is given or made in accordance with the applicable
procedures.
(d) Every Security authenticated and delivered upon
registration of transfer of, or in exchange for or in lieu
of, a Global Security or any portion thereof, whether
pursuant to this Article Three or otherwise, shall be
authenticated and delivered in the form of, and shall be, a
registered Global Security, unless such Security is
registered in the name of a Person other than the Depositary
for such Global Security or a nominee thereof, in which case
such Registered Security shall be authenticated and delivered
in definitive, fully registered form, without interest
coupons.
(e) The Depositary or its nominee, as registered
owner of a Global Security, shall be the Holder of such
Global Security for all purposes under the Indenture and the
Registered Securities, and owners of beneficial interests in
a Global Security shall hold such interests pursuant to the
applicable procedures. Accordingly, any such owner's
beneficial interest in a Global Security will be shown only
on, and the transfer of such interest shall be effected only
through, records maintained by the Depositary or its nominee
or its agent members and such owners of beneficial interests
in a Global Security will not be considered the owners or
holders thereof.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of
further effect (except as to surviving rights of registration of
transfer or exchange of Securities
<PAGE>
expressly provided for herein or pursuant hereto) and the Trustee, on
demand of and at the expense of the Company, shall execute proper
instruments acknowledging satisfaction and discharge of this Indenture
when
(1) either
(a) all Securities theretofore
authenticated and delivered (other than (i)
Securities that have been destroyed, lost or stolen
and that have been replaced or paid as provided in
Section 306 and (ii) Securities for whose payment
money has theretofore been deposited in trust with
the Trustee or any Paying Agent or segregated and
held in trust by the Company and thereafter repaid
to the Company or discharged from such trust, as
provided in Section 1003) have been delivered to the
Trustee for cancelation; or
(b) all such Securities not theretofore
delivered to the Trustee for cancelation
(i) have become due and payable, or
(ii) will become due and payable at
their Stated Maturity within one year, or
(iii) are to be called for redemption
within one year under arrangements satisfactory to
the Trustee for the giving of notice of redemption
by the Trustee in the name, and at the expense, of
the Company,
and the Company, in the case of (i), (ii) or (iii)
above, has irrevocably deposited or caused to be
deposited with the Trustee as trust funds in trust
for such purpose United States dollars (or another
currency if applicable) in an amount sufficient to
pay and discharge the entire indebtedness on such
Securities not theretofore delivered to the Trustee
for cancelation, for principal (and premium, if any)
and interest to the date of such deposit (in the
case of Securities that have become due and payable)
or to the Stated Maturity or Redemption Date, as the
case may be;
(2) the Company has paid or caused to be paid all
other sums payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating
that all conditions precedent herein provided for relating to
the satisfaction and discharge of this Indenture have been
complied with. (Such Opinion of Counsel may, as to all
matters of fact, rely on, among other things, such Officers'
Certificate.)
Notwithstanding the satisfaction and discharge of this
Indenture, the obligations of the Company to the Trustee under Section
607 and, if money shall have been deposited with the Trustee pursuant
to subclause (b) of clause (1) of this Section, the obligations of the
Trustee under Section 402 and the second to the last paragraph of
Section 1003 shall survive.
<PAGE>
SECTION 402. Application of Trust Money.
Subject to the provisions of the second to the last
paragraph of Section 1003, all money deposited with the Trustee
pursuant to Section 401 shall be held in trust and applied by it, in
accordance with the provisions of the Securities and this Indenture,
to the payment, either directly or through any Paying Agent (including
the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and
premium, if any) and interest for whose payment such money has been
deposited with the Trustee; but such money need not be segregated from
other funds except to the extent required by law.
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default.
"Event of Default", wherever used herein, means with respect
to any series of Securities any one of the following events (whatever
the reason for such Event of Default and whether it shall be voluntary
or involuntary or be effected by operation of law or pursuant to any
judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body), unless such
event is either inapplicable to a particular series or it is
specifically deleted or modified in the supplemental indenture
creating such series of Securities or in the form of Security for such
series:
(a) default in the payment of any interest upon any
Security of that series when it becomes due and payable, and
continuance of such default for a period of 30 days;
(b) default in the payment of the principal of (or
premium, if any, on) any Security at its Stated Maturity,
upon repurchase, acceleration, optional redemption, required
repurchase or otherwise, or the failure to make an offer to
purchase as therein required;
(c) default in the payment of any sinking or
purchase fund or analogous obligation when the same becomes
due by the terms of the Securities of such series; or
(d) failure by the Company to perform or comply with
the provisions of Article Eight of this Indenture;
(e) default in the performance, or breach, of any
covenant or warranty of the Company under this Indenture in
respect of the Securities of such series other than a
covenant or warranty in respect of the Securities of such
series, a default in whose performance or whose breach is
specifically dealt with in (a), (b), (c) or (d) above) and
continuance of such default or breach, for a period of 90
days after specified written notice thereof has been given to
the Company by the
<PAGE>
Trustee or to the Company and the Trustee by the Holders of
at least 25% of the aggregate principal amount of the
Outstanding Securities of such series;
(f) the entry by a court having jurisdiction in the
premises of (i) a decree or order for relief in respect of
the Company in an involuntary case or proceeding under U.S.
bankruptcy laws, as now or hereafter constituted, or any
other applicable Federal, State, or foreign bankruptcy,
insolvency, or other similar law or (ii) a decree or order
adjudging the Company bankrupt or insolvent, or approving as
properly filed a petition seeking reorganization,
arrangement, adjustment or composition of or in respect of
the Company under U.S. bankruptcy laws, as now or hereafter
constituted, or any other applicable Federal, State, or
foreign bankruptcy, insolvency, or similar law, or appointing
a custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official of the Company or of
any substantial part of the property or assets of the Company
or ordering the winding up or liquidation of the affairs of
the Company and the continuance of any such decree or order
for relief or any such other decree or order unstayed and in
effect for a period of 90 consecutive days;
(g) (i) the commencement by the Company of a
voluntary case or proceeding under U.S. bankruptcy laws, as
now or hereafter constituted, or any other applicable
Federal, State, or foreign bankruptcy, insolvency or other
similar law or of any other case or proceeding to be
adjudicated a bankrupt or insolvent, or (ii) the consent by
the Company to the entry of a decree or order for relief in
respect of the Company in an involuntary case or proceeding
under U.S. bankruptcy laws, as now or hereafter constituted,
or any other applicable Federal, State or foreign bankruptcy,
insolvency, or other similar law or to the commencement of
any bankruptcy or insolvency case or proceeding against the
Company, or (iii) the filing by the Company of a petition or
answer or consent seeking reorganization or relief under U.S.
bankruptcy laws, as now or hereafter constituted, or any
other applicable Federal, State, or foreign bankruptcy,
insolvency or other similar law, or (iv) the consent by the
Company to the filing of such petition or to the appointment
of or taking possession by a custodian, receiver, liquidator,
assignee, trustee, sequestrator or similar official of the
Company or of any substantial part of the property or assets
of the Company, or the making by the Company of an assignment
for the benefit of creditors, or (v) the admission by the
Company in writing of its inability to pay its debts
generally as they become due, or (vi) the taking of corporate
action by the Company in furtherance of any such action; or
(h) any other Event of Default provided in the
supplemental indenture under which such series of Securities
is issued or in the form of Security for such series.
SECTION 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default (other than an Event of Default
specified in Section 501(f) or 501(g)) occurs and is continuing, then
and in every such case the Trustee or the Holders of not less than 25%
in principal amount of the Outstanding Securities may declare the
principal amount of all the Outstanding Securities and any accrued and
unpaid interest on all such Securities to be due and payable
immediately, by a notice in writing to the Company (and to the Trustee
if given by Holders), and upon
<PAGE>
any such declaration such principal amount and any accrued and unpaid
interest on all such Securities shall become immediately due and
payable. If an Event of Default specified in Section 501(f) or 501(g)
occurs and is continuing, then the principal amount of all the
Securities shall ipso facto become and be immediately due and payable
without any declaration or other act on the part of the Trustee or any
Holder.
At any time after such a declaration of acceleration has
been made with respect to the Securities of any series and before a
judgment or decree for payment of the money due has been obtained by
the Trustee as hereinafter provided in this Article, the Holders of a
majority in principal amount of the Outstanding Securities of such
series, by written notice to the Company and the Trustee, may rescind
and annul such declaration and its consequences if
(1) the Company has paid or deposited with the
Trustee a sum sufficient to pay
(A) all overdue interest on the
Securities of such series,
(B) all unpaid principal of (and
premium, if any, on) any Securities of such series
that have become due otherwise than by such
declaration of acceleration, and interest thereon
at the rate or rates prescribed therefor by the
terms of the Securities of such series, to the
extent that payment of such interest is lawful,
(C) interest on overdue interest at the
rate or rates prescribed therefor by the terms of
the Securities of such series to the extent that
payment of such interest is lawful, and
(D) all sums paid or advanced by the
Trustee hereunder and the reasonable compensation,
expenses, disbursements and advances of the
Trustee, its agents and counsel; and
(2) all Events of Default with respect to such
series of Securities, other than the nonpayment of the
principal of the Securities of such series that have become
due solely by such declaration of acceleration, have been
cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any
right consequent thereon.
SECTION 503. Collection of Debt and Suits for Enforcement by
Trustee.
The Company covenants that if an Event of Default specified
in Section 501(a), (b) or (c) occurs, the Company will, upon demand of
the Trustee, pay to the Trustee for the benefit of the Holders of such
Securities (or the Holders of any series in the case of 501(c)), the
whole amount then due and payable on such Securities (or on the
Securities of any such series in the case of 501(c)) for principal
(and premium, if any) and interest, and interest on any overdue
principal (and premium, if any) and, to the extent that payment of
such interest shall be legally enforceable, upon any overdue
installment of interest, at the such rate or rates prescribed therefor
by the terms of any such Security (or of Securities of any such series
in the case of 501(c)) by the Securities,
<PAGE>
and, in addition thereto, such further amount as shall be sufficient
to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such
demand, the Trustee, in its own name as trustee of an express trust,
may institute a judicial proceeding for the collection of the sums so
due and unpaid, may prosecute such proceeding to judgment or final
decree and may enforce the same against the Company or any other
obligor upon the Securities and collect the moneys adjudged or decreed
to be payable in the manner provided by law out of the property of the
Company or any other obligor upon the Securities, wherever situated.
If an Event of Default with respect to any series of
Securities occurs and is continuing, the Trustee may in its discretion
proceed to protect and enforce its rights and the rights of the
Holders of Securities of such series by such appropriate judicial
proceedings as the Trustee shall deem most effectual to protect and
enforce any such rights, whether for the specific enforcement of any
covenant or agreement in this Indenture or in aid of the exercise of
any power granted herein, or to enforce any other proper remedy.
SECTION 504. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment,
composition or other similar judicial proceeding relative to the
Company or any other obligor upon the Securities or the property of
the Company or of such other obligor or their creditors, the Trustee
(irrespective of whether the principal of the Securities shall then be
due and payable as therein expressed or by declaration or otherwise
and irrespective of whether the Trustee shall have made any demand on
the Company for the payment of overdue principal, premium, if any, or
interest) shall be entitled and empowered, by intervention in such
proceeding or otherwise,
(i) to file and prove a claim for the whole amount
of principal (and premium, if any) and interest owing and
unpaid in respect of the Securities and to file such other
papers or documents as may be necessary or advisable in order
to have the claims of the Trustee (including any claim for
the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel) and of the
Holders allowed in such judicial proceeding, and
(ii) to collect and receive any moneys or other
property payable or deliverable on any such claims and to
distribute the same;
and any custodian, receiver, assignee, trustee, liquidator,
sequestrator or similar official in any such judicial proceeding is
hereby authorized by each Holder to make such payments to the Trustee
and, in the event that the Trustee shall consent to the making of such
payments directly to the Holders, to pay the Trustee any amount due it
for the reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel, and any other amounts due the
Trustee under Section 607.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any
Holder any plan of
<PAGE>
reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof, or to authorize the
Trustee to vote in respect of the claim of any Holder in any such
proceeding.
SECTION 505. Trustee May Enforce Claims Without Possession
of Securities.
All rights of action and claims under this Indenture or the
Securities of any series may be prosecuted and enforced by the Trustee
without the possession of any of the Securities of such series or the
production thereof in any proceeding relating thereto, and any such
proceeding instituted by the Trustee shall be brought in its own name
and as trustee of an express trust, and any recovery of judgment
shall, after provision for the payment of the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and
counsel, be for the ratable benefit of the Holders of the Securities
of the series in respect of which such judgment has been recovered.
SECTION 506. Application of Money Collected.
Any money collected by the Trustee with respect to a
series of Securities pursuant to this Article shall be applied in the
following order, at the date or dates fixed by the Trustee and, in
case of the distribution of such money on account of principal (or
premium, if any) or interest, upon presentation of the Securities of
such series and the notation thereon of the payment if only partially
paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the
Trustee under Section 607;
SECOND: To holders of Senior Debt to the extent
required by Article 13;
THIRD: To the payment of the amounts then due and
unpaid upon the Securities of that series for principal of
(and premium, if any) and interest, in respect of which or
for the benefit of which such money has been collected,
ratably, without preference or priority of any kind,
according to the amounts due and payable on such Securities
for principal (and premium, if any) and interest,
respectively; and
FOURTH: The balance, if any, to the Company.
SECTION 507. Limitation on Suits.
No Holder of any Securities of any series shall have any
right to institute any proceeding, judicial or otherwise, with respect
to this Indenture, or for the appointment of a receiver or trustee, or
for any other remedy hereunder, unless
(1) such Holder has previously given written notice
to the Trustee of a continuing Event of Default with respect
to Securities of such series;
(2) the Holders of not less than 25% in principal
amount of the Outstanding Securities of such series have made
written request to the Trustee to
<PAGE>
institute proceedings in respect of such Event of Default in
its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the
Trustee reasonable indemnity against the costs, expenses and
liabilities to be incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of
such notice, request and offer of indemnity has failed to
institute any such proceeding; and
(5) no direction inconsistent with such written
request has been given to the Trustee during such 60-day
period by the Holders of a majority or more in principal
amount of the Outstanding Securities of such series;
it being understood and intended that no one or more Holders of
Securities of such series shall have any right in any manner whatever
by virtue of, or by availing of, any provision of this Indenture to
affect, disturb or prejudice the rights of any other Holders of
Securities of such series, or to obtain or to seek to obtain priority
or preference over any other Holders or to enforce any right under
this Indenture, except in the manner herein provided and for the equal
and ratable benefit of all the Holders of all Securities of such
series.
SECTION 508. Unconditional Right of Holders to Receive
Principal, Premium and Interest.
Notwithstanding any other provision in this Indenture, the
Holder of any Security shall have the right, which is absolute and
unconditional, to receive payment, as provided herein (including, if
applicable, Article Twelve) and in such Security of the principal of
(and premium, if any) and (subject to Section 307) interest on such
Security on the respective Stated Maturities expressed in such
Security (or, in the case of redemption, on the Redemption Date) and
to institute suit for the enforcement of any such payment, and such
rights shall not be impaired without the consent of such Holder.
SECTION 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding
to enforce any right or remedy under this Indenture and such
proceeding has been discontinued or abandoned for any reason, or has
been determined adversely to the Trustee or to such Holder, then and
in every such case, subject to any determination in such proceeding,
the Company, the Trustee and the Holders shall be restored severally
and respectively to their former positions hereunder and thereafter
all rights and remedies of the Trustee and the Holders shall continue
as though no such proceeding had been instituted.
SECTION 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities in the
last paragraph of Section 306, no right or remedy herein conferred
upon or reserved to the Trustee or to the Holders is intended to be
exclusive of any other right or remedy, and every right and remedy
shall, to the extent permitted by law, be cumulative and in addition
to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise.
<PAGE>
The assertion or employment of any right or remedy hereunder, or
otherwise, shall not prevent the concurrent assertion or employment of
any other appropriate right or remedy.
SECTION 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any
Security to exercise any right or remedy accruing upon any Event of
Default shall impair any such right or remedy or constitute a waiver
of any such Event of Default or an acquiescence therein. Every right
and remedy given by this Article or by law to the Trustee or to the
Holders may be exercised from time to time, and as often as may be
deemed expedient, by the Trustee or by the Holders, as the case may
be.
SECTION 512. Control by Holders.
The Holders of not less than a majority in principal amount
of the Outstanding Securities shall have the right to direct the time,
method and place of conducting any proceeding for any remedy available
to the Trustee, or exercising any trust or power conferred on the
Trustee, provided that
(1) such direction shall not be in conflict with
any rule of law or with this Indenture or any Security,
(2) the Trustee may take any other action deemed
proper by the Trustee that is not inconsistent with such
direction, and
(3) the Trustee need not take any action that
might involve it in personal liability or be unjustly
prejudicial to the Holders not consenting.
SECTION 513. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount
of the Outstanding Securities of any series may on behalf of the
Holders of all the Securities of such series waive (including by way
of consents obtained with a purchase of, or a tender or exchange offer
for, Securities) any past default hereunder and its consequences,
except a default
(1) in respect of the payment of the principal of
(or premium, if any) or interest on any Security of such
series, or in the payment of any sinking or purchase fund or
analogous obligation with respect to the Securities of such
series, or
(2) in respect of a covenant or provision hereof
that under Article Nine cannot be modified or amended without
the consent of the Holder of each Outstanding Security of
such series.
Upon any such waiver, such default shall cease to exist, and
any Event of Default arising therefrom shall be deemed to have been
cured, for every purpose of this Indenture; but no such waiver shall
extend to any subsequent or other default or Event of Default or
impair any right consequent thereon.
<PAGE>
SECTION 514. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do
so) that it will not at any time insist upon, or plead, or in any
manner whatsoever claim or take the benefit or advantage of, any stay
or extension law wherever enacted, now or at any time hereafter in
force, that may affect the covenants or the performance of this
Indenture; and the Company (to the extent that it may lawfully do so)
hereby expressly waives all benefit or advantage of any such law and
covenants that it will not hinder, delay or impede the execution of
any power herein granted to the Trustee, but will suffer and permit
the execution of every such power as though no such law had been
enacted.
SECTION 515. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any
Security by such Holder's acceptance thereof shall be deemed to have
agreed, that any court may in its discretion require in any suit for
the enforcement of any right or remedy under this Indenture, or in any
suit against the Trustee for any action taken, suffered or omitted by
it as Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such court may in
its discretion assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in such suit, having due
regard to the merits and good faith of the claims or defenses made by
such party litigant; but the provisions of this Section shall not
apply to any suit instituted by the Trustee, to any suit instituted by
any Holder, or group of Holders, holding in the aggregate more than
10% in principal amount of the Outstanding Securities of any series to
which the suit relates, or to any suit instituted by any Holder for
the enforcement of the payment of the principal of, premium, if any,
or interest on any Security on or after the respective Stated Maturity
expressed in such Security.
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities.
(1) Except during the continuance of an Event of Default
with respect to any series of Securities,
(a) the Trustee undertakes to perform such duties
and only such duties as are specifically set forth in this
Indenture with respect to the Securities of such series, and
no implied covenants or obligations shall be read into this
Indenture against the Trustee; and
(b) in the absence of bad faith on its part, the
Trustee may, with respect to Securities of such series, rely
conclusively, as to the truth of the statements and the
correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Trustee and
conforming to the requirements of this Indenture; but in the
case of any such certificates or opinions that by any
provision hereof specifically are required to be furnished to
the Trustee, the Trustee shall be under a duty to examine the
same to determine whether or not they conform to the
requirements of this Indenture.
<PAGE>
(2) If an Event of Default with respect to any series of
Securities has occurred and is continuing, the Trustee shall exercise
with respect to the Securities of such series such of the rights and
powers vested in it by this Indenture, and use the same degree of care
and skill in their exercise as a prudent person would exercise or use
under the circumstances in the conduct of such person's own affairs.
(3) No provision of this Indenture shall be
construed to relieve the Trustee from liability for its own negligent
action, its own negligent failure to act, or its own willful
misconduct, except that
(a) this Subsection shall not be construed to
limit the effect of Subsection (1) of this Section;
(b) the Trustee shall not be liable for any error
of judgment made in good faith by a Responsible Officer,
unless it shall be proved that the Trustee was negligent in
ascertaining the pertinent facts;
(c) the Trustee shall not be liable with respect
to any action taken or omitted to be taken by it in good
faith in accordance with the direction of the Holders of a
majority in principal amount of the Outstanding Securities
of any series relating to the time, method and place of
conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred upon the
Trustee, under this Indenture with respect to the Securities
of such series; and
(d) the Trustee shall not be required to expend or
risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder,
or in the exercise of any of its rights or powers, if it
shall have reasonable grounds for believing that repayment
of such funds or adequate indemnity against such risk or
liability is not reasonably assured to it.
SECTION 602. Notice of Defaults.
Within 90 days after the occurrence of any Default
hereunder, the Trustee shall transmit in the manner and to the extent
provided in TIA Section 313(c), notice of such Default hereunder known
to the Trustee, unless such Default shall have been cured or waived;
provided, however, that, except in the case of a Default in the
payment of the principal of (or premium, if any) or interest on any
Security of such series or in the payment of any sinking or purchase
fund installment or analogous obligation with respect to Securities of
such series, the Trustee shall be protected in withholding such notice
if and so long as the board of directors, the executive committee or a
trust committee of directors and/or Responsible Officers of the
Trustee in good faith determines that the withholding of such notice
is in the interest of the Holders; and provided further that in the
case of any Default of the character specified in Section 501(e) with
respect to Securities of such series no such notice to Holders of such
series shall be given until at least 60 days after the occurrence
thereof.
SECTION 603. Certain Rights of Trustee.
Subject to the provisions of TIA Sections 315(a) through
315(d):
<PAGE>
(1) the Trustee may rely and shall be protected in
acting or refraining from acting upon any resolution,
certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note,
other evidence of indebtedness or other paper or document
reasonably believed by it to be genuine and to have been
signed or presented by the proper party or parties;
(2) any request or direction of the Company
mentioned herein shall be sufficiently evidenced by a Company
Request or Company Order and any resolution of the Board of
Directors may be sufficiently evidenced by a Board
Resolution;
(3) whenever in the administration of this Indenture
the Trustee shall deem it desirable that a matter be proved
or established prior to taking, suffering or omitting any
action hereunder, the Trustee (unless other evidence be
herein specifically prescribed) may, in the absence of bad
faith on its part, rely upon an Officers' Certificate;
(4) the Trustee may consult with counsel and the
written advice of such counsel or any Opinion of Counsel
shall be full and complete authorization and protection in
respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon;
(5) the Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this
Indenture at the request or direction of any of the Holders
pursuant to this Indenture, unless such Holders shall have
offered to the Trustee reasonable security or indemnity
against the costs, expenses and liabilities that might be
incurred by it in compliance with such request or direction;
(6) the Trustee shall not be bound to make any
investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other
paper or document, but the Trustee, in its discretion, may
make such further inquiry or investigation into such facts or
matters as it may see fit; and
(7) the Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either
directly or by or through agents or attorneys and the Trustee
shall not be responsible for any misconduct or negligence on
the part of any agent or attorney (other than an agent or
attorney who is an employee of the Trustee) appointed with
due care by it hereunder.
SECTION 604. Trustee Not Responsible for Recitals or
Issuance of Securities.
The recitals contained herein and in the Securities, except
for the Trustee's certificates of authentication, shall be taken as
the statements of the Company, and the Trustee assumes no
responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or
of the Securities, except that the Trustee represents that it is duly
authorized to execute and deliver this Indenture, authenticate the
Securities and perform its obligations hereunder and that the
<PAGE>
statements made by it in a Statement of Eligibility and Qualification
on Form T-1 supplied to the Company are true and accurate, subject to
the qualifications set forth therein. The Trustee shall not be
accountable for the use or application by the Company of Securities or
the proceeds thereof.
SECTION 605. May Hold Securities.
The Trustee, any Paying Agent, any Security Registrar or any
other agent of the Company or of the Trustee, in its individual or any
other capacity, may become the owner or pledgee of Securities and,
subject to TIA Sections 310(b) and 311, may otherwise deal with the
Company with the same rights it would have if it were not Trustee,
Paying Agent, Security Registrar or such other agent.
SECTION 606. Money Held in Trust.
Money held by the Trustee in trust hereunder shall, until
used or applied as herein provided, be held in trust for the purposes
for which it was received, but need not be segregated from other funds
except to the extent required by law. The Trustee shall be under no
liability for interest on any money received by it hereunder except as
otherwise agreed with the Company.
SECTION 607. Compensation and Reimbursement.
The Company agrees:
(1) to pay to the Trustee from time to time
reasonable compensation for all services rendered by it
hereunder (which compensation shall not be limited by any
provision of law in regard to the compensation of a trustee
of an express trust);
(2) except as otherwise expressly provided herein,
to reimburse the Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by the
Trustee in accordance with any provision of this Indenture
(including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such
expense, disbursement or advance as may arise from or be
attributable to its negligence or bad faith; and
(3) to indemnify the Trustee for, and to hold it
harmless against, any loss, liability or expense incurred
without negligence or bad faith on its part or on the part
of its directors, officers, employees and agents, arising
out of or in connection with the acceptance or
administration of this trust, including the costs and
expenses of defending itself, and of indemnifying its
directors, officers, employees and agents, against any claim
or liability in connection with the exercise or performance
of any of the Trustee's powers or duties hereunder.
The Trustee shall notify the Company promptly of any claim
asserted against the Trustee for which it may seek indemnity. The
obligations of the Company under this Section to compensate the
Trustee, to pay or reimburse the Trustee for expenses, disbursements
and advances and to indemnify and hold harmless the Trustee shall
constitute additional indebtedness hereunder and shall survive the
satisfaction and discharge of this Indenture. As security for the
performance of such obligations of the
<PAGE>
Company, the Trustee shall have a claim prior to the Securities upon
all property and funds held or collected by the Trustee as such,
except funds held in trust for the payment of principal of (and
premium, if any) or interest on particular Securities.
When the Trustee incurs expenses or renders services in
connection with an Event of Default specified in Section 501(f) or
(g), the expenses (including the reasonable charges and expenses of
its counsel) of and the compensation for such services are intended to
constitute expenses of administration under any applicable Federal or
State bankruptcy, insolvency or other similar law.
The provisions of this Section shall survive the termination
of this Indenture.
SECTION 608. Disqualification; Conflicting Interests.
The Trustee for the Securities of any series issued
hereunder shall be subject to the provisions of Section 310(b) of the
Trust Indenture Act during the period of time provided for therein. In
determining whether the Trustee has a conflicting interest as defined
in Section 310(b) of the Trust Indenture Act with respect to the
Securities of any series, there shall be excluded for purposes of the
conflicting interest provisions of such Section 310(b) (i) the
Securities of every other series issued under this Indenture, (ii)
every series of securities issued under the Indenture dated as of ,
between Teligent, Inc. and and (iii) every series of securities issued
under the Indenture dated as of , between Teligent, Inc. and . Nothing
herein shall prevent the Trustee from filing with the Commission the
application referred to in the second to last paragraph of Section
310(b) of the Trust Indenture Act.
SECTION 609. Corporate Trustee Required; Eligibility.
There shall be at all times a Trustee hereunder with respect
to each series of Securities, that shall be eligible to act as Trustee
under TIA Section 310(a)(1) and 310(a)(5) and shall have a combined
capital and surplus of at least $50,000,000. If such corporation
publishes reports of condition at least annually, pursuant to law or
to the requirements of Federal, State, territorial or District of
Columbia supervising or examining authority, then for the purposes of
this Section, the combined capital and surplus of such corporation
shall be deemed to be its combined capital and surplus as set forth in
its most recent report of condition so published. If at any time the
Trustee with respect to any series of Securities shall cease to be
eligible in accordance with the provisions of this Section, it shall
resign immediately in the manner and with the effect hereinafter
specified in this Article.
SECTION 610. Resignation and Removal; Appointment of
Successor.
(a) No resignation or removal of the Trustee and
no appointment of a successor Trustee pursuant to this
Article shall become effective until the acceptance of
appointment by the successor Trustee in accordance with the
applicable requirements of Section 611.
(b) The Trustee may resign with respect to any
series of Securities at any time by giving written notice
thereof to the Company. If the instrument of acceptance by a
successor Trustee required by Section 611 shall not have
been delivered
<PAGE>
to the Trustee within 30 days after the giving of such notice of
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee.
(c) The Trustee may be removed with respect to any
series of Securities at any time by Act of the Holders of
not less than a majority in principal amount of the
Outstanding Securities of that series, delivered to the
Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply
with the provisions of TIA Section 310(b) with
respect to any series of Securities after written
request therefor by the Company or by any Holder
who has been a bona fide Holder of a Security of
that series for at least six months, or
(2) the Trustee shall cease to be
eligible under Section 609 with respect to any
series of Securities and shall fail to resign
after written request therefor by the Company or
by any such Holder who has been a bona fide Holder
of a Security for at least six months, or
(3) the Trustee shall become incapable
of acting with respect to any series of Securities
or
(4) the Trustee shall be adjudged a
bankrupt or insolvent or a receiver of the Trustee
or of its property shall be appointed or any
public officer shall take charge or control of the
Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or
liquidation,
then, in any such case, (i) the Company, by a Board Resolution, may
remove the Trustee, with respect to the series, or in the case of
clause (4), with respect to all series or (ii) subject to TIA Section
315(e), any Holder who has been a bona fide Holder of a Security of
such series for at least six months may, on behalf of himself and all
others similarly situated, petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of a
successor Trustee with respect to the series, or, in the case of
clause (4), with respect to all series.
(e) If the Trustee shall resign, be removed or become
incapable of acting with respect to any series of Securities, or if a
vacancy shall occur in the office of Trustee with respect to any
series of Securities for any cause, the Company, by a Board
Resolution, shall promptly appoint a successor Trustee for that series
of Securities. If, within one year after such resignation, removal or
incapability, or the occurrence of such vacancy, a successor Trustee
with respect to such series of Securities shall be appointed by Act of
the Holders of a majority in principal amount of the Outstanding
Securities of such series delivered to the Company and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its
acceptance of such appointment, become the successor Trustee with
respect to such series and supersede the successor Trustee appointed
by the Company. If no successor Trustee shall have been so appointed
by the Company or the Holders and accepted appointment in the manner
hereinafter provided, any Holder who has been a bona fide Holder of a
Security of that series for at least six
<PAGE>
months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the appointment of a
successor Trustee.
(f) The Company shall give notice of each resignation and
each removal of the Trustee and each appointment of a successor
Trustee to the Holders of Securities in the manner provided for in
Section 106. Each notice shall include the name of the successor
Trustee and the address of its Corporate Trust Office.
SECTION 611. Acceptance of Appointment by Successor.
Every successor Trustee appointed hereunder shall execute,
acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation
or removal of the retiring Trustee shall become effective with respect
to any series as to which it is resigning or being removed as Trustee
and such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts
and duties of the retiring Trustee; but, on request of the Company or
the successor Trustee, such retiring Trustee shall, upon payment of
its charges, execute and deliver an instrument transferring to such
successor Trustee all the rights, powers and trusts of the retiring
Trustee and shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee
hereunder. Upon reasonable request of any such successor Trustee, the
Company shall execute any and all instruments for more fully and
certainly vesting in and confirming to such successor Trustee all such
rights, powers and trusts.
In case of the appointment hereunder of a successor Trustee
with respect to the Securities of one or more (but not all) series,
the Company, the predecessor Trustee and each successor Trustee with
respect to the Securities of any applicable series shall execute and
deliver an indenture supplemental hereto which shall contain such
provisions as shall be deemed necessary or desirable to confirm that
all the rights, powers, trusts and duties of the predecessor Trustee
with respect to the Securities of any series as to which the
predecessor Trustee is not being succeeded shall continue to be vested
in the predecessor Trustee, and shall add to or change any of the
provisions of this Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by more than one
Trustee, it being understood that nothing herein or in such
supplemental indenture shall constitute such Trustees co-trustees of
the same trust and that each such Trustee shall be Trustee of a trust
or trusts hereunder separate and apart from any trust or trusts
hereunder administered by any other such Trustee.
No successor Trustee with respect to any series of
Securities shall accept its appointment unless at the time of such
acceptance such successor Trustee shall be qualified and eligible with
respect to that series under this Article.
SECTION 612. Merger, Conversion, Consolidation or Succession
to Business.
Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which the
Trustee shall be a party, or any corporation succeeding to all or
substantially all of the corporate trust business of the Trustee,
shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or
<PAGE>
any further act on the part of any of the parties hereto. In case any
Securities shall have been authenticated, but not delivered, by the
Trustee then in office, any successor by merger, conversion or
consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated with the
same effect as if such successor Trustee had itself authenticated such
Securities. In case at that time any of the Securities shall not have
been authenticated, any successor Trustee may authenticate such
Securities either in the name of any predecessor hereunder or in the
name of the successor Trustee. In all such cases such certificates
shall have the full force and effect that this Indenture provides for
the certificate of authentication of the Trustee; provided, however,
that the right to adopt the certificate of authentication of any
predecessor Trustee or to authenticate Securities in the name of any
predecessor Trustee shall apply only to its successor or successors by
merger, conversion or consolidation.
SECTION 613. Conflicting Interests.
The Trustee shall be subject to and comply with the
provisions of Section 310(b) of the TIA.
SECTION 614. Preferential Collection of Claims Against
Issuers.
The Trustee shall comply with Section 311(a) of the TIA,
excluding any creditor relationship listed in Section 311(b) of the
TIA. If the present or any future Trustee shall resign or be removed,
it shall be subject to Section 311(a) of the TIA to the extent
provided therein.
SECTION 615. Appointment of Authenticating Agent.
At any time when any of the Securities remain Outstanding
the Trustee, with the approval of the Company, may appoint an
Authenticating Agent or Agents with respect to one or more series of
Securities which shall be authorized to act on behalf of the Trustee
to authenticate Securities of such series issued upon exchange,
registration of transfer or partial redemption thereof or pursuant to
Section 306, and Securities so authenticated shall be entitled to the
benefits of this Indenture and shall be valid and obligatory for all
purposes as if authenticated by the Trustee hereunder. Wherever
reference is made in this Indenture to the authentication and delivery
of Securities by the Trustee or the Trustee's certificate of
authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on
behalf of the Trustee by an Authenticating Agent. Each Authenticating
Agent shall be acceptable to the Company and shall at all times be a
corporation organized and doing business under the laws of the United
States of America, any State thereof or the District of Columbia,
authorized under such laws to act as an Authenticating Agent, having a
combined capital and surplus of not less than $50,000,000 and, if
other than the Company itself, subject to supervision or examination
by Federal or State authority. If such Authenticating Agent publishes
reports of condition at least annually, pursuant to law or to the
requirements of said supervising or examining authority, then for the
purposes of this Section, the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so
published. If at any time an Authenticating Agent shall cease to be
eligible in accordance with the provisions of this Section, such
Authenticating Agent shall resign immediately in the manner and with
the effect specified in this Section.
<PAGE>
Any corporation into which an Authenticating Agent may be
merged or converted or with which it may be consolidated, or any
corporation resulting from any merger, conversion or consolidation to
which such Authenticating Agent shall be a party, or any corporation
succeeding to the corporate agency or corporate trust business of an
Authenticating Agent, shall continue to be an Authenticating Agent,
provided such corporation shall be otherwise eligible under this
Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving
written notice thereof to the Trustee and, if other than the Company,
to the Company. The Trustee may at any time terminate the agency of an
Authenticating Agent by giving written notice thereof to such
Authenticating Agent and, if other than the Company, to the Company
Upon receiving such a notice of resignation or upon such a
termination, or in case at any time such Authenticating Agent shall
cease to be eligible in accordance with the provisions of this
Section, the Trustee, with the approval of the Company, may appoint a
successor Authenticating Agent which shall be acceptable to the
Company and shall mail written notice of such appointment by
first-class mail, postage prepaid, to all Holders of Securities of the
series with respect to which such Authenticating Agent will serve, as
their names and addresses appear in the Security Register. Any
successor Authenticating Agent upon acceptance of its appointment
hereunder shall become vested with all the rights, powers and duties
of its predecessor hereunder, with like effect as if originally named
as an Authenticating Agent. No successor Authenticating Agent shall be
appointed unless eligible under the provisions of this Section.
The Trustee agrees to pay to each Authenticating Agent
(other than an Authenticating Agent appointed at the request of the
Company from time to time) reasonable compensation for its services
under this Section, and the Trustee shall be entitled to be reimbursed
for such payments, subject to the provisions of Section 607.
If an appointment with respect to one or more series is made
pursuant to this Section, the Securities of such series may have
endorsed thereon, in addition to the Trustee's certificate of
authentication, an alternate certificate of authentication in the
following form:
This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
[ ],
by
----------------------------
As Authenticating Agent
Date: by
-------- ----------------------------
Authorized Signatory
<PAGE>
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Disclosure of Names and Addresses of Holders.
Every Holder of Securities, by receiving and holding the
same, agrees with the Company and the Trustee that none of the Company
or the Trustee or any agent of either of them shall be held
accountable by reason of the disclosure of any such information as to
the names and addresses of the Holders in accordance with TIA Section
312, regardless of the source from which such information was derived,
and that the Trustee shall not be held accountable by reason of
mailing any material pursuant to a request under TIA Section 312(b).
SECTION 702. Reports by Trustee.
Within 60 days after of each year commencing with the first
after the first issuance of Securities, the Trustee shall transmit to
the Holders, in the manner and to the extent provided in TIA Section
313(c), a brief report dated as of such if required by TIA Section
313(a).
SECTION 703. Reports by Company.
The Company shall:
(1) whether or not the Company is subject to Section 13(a) or
15(d) of the Exchange Act or any successor provision thereto, file
with the Commission the annual reports, quarterly reports and other
documents that the Company would have been required to file with the
Commission pursuant to such Section 13(a), 15(d) or any successor
provision thereto if the Company were subject thereto and shall file
such documents with the Commission on or prior to the respective dates
(the "Required Filing Dates") by which the Company would have been
required to file them;
(2) whether or not the Company is subject to Section 13(a) or
15(d) of the Exchange Act or any successor provision thereto, within
15 days of each Required Filing Date, file with the Trustee copies of
the annual reports, quarterly reports and other documents (without
exhibits) that the Company would have been required to file with the
Commission pursuant to Section 13(a) or 15(d) of the Exchange Act or
any successor provisions thereto if the Company was subject thereto:
(3) file with the Trustee and the Commission, in accordance
with rules and regulations prescribed from time to time by the
Commission, such additional information, documents and reports with
respect to compliance by the Company with the conditions and covenants
of this Indenture as may be required from time to time by such rules
and regulations; and
(4) transmit by mail to all Holders, in the manner and to the
extent provided in TIA Section 313(c), within 15 days after the filing
thereof with the Commission, such summaries of any information,
documents and reports required to be filed by the Company pursuant to
paragraphs (1), (2) and (3) of this Section as may be required by
rules and regulations prescribed from time to time by the Commission.
<PAGE>
If the Company is not permitted under the Exchange Act to
file with the Commission such reports and other information referred
to in Section 703(1), the Company shall promptly upon written request
supply copies of such documents (without exhibits) to prospective
purchasers of the Securities or their representatives.
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, Etc., Only on Certain
Terms.
The Company shall not consolidate with or merge into any
other Person or sell, convey, assign, transfer, lease or otherwise
dispose of all or substantially all of its property and assets to any
Person, unless:
(a) either (i) the Company shall be the continuing
corporation or (ii) the corporation (if other than the
Company) formed by such consolidation or into which the
Company is merged, or the Person that acquires, by sale,
assignment, conveyance, transfer, lease or disposition, all
or substantially all of the property and assets of the
Company and its Subsidiaries taken as a whole (such
corporation or Person, the "Surviving Entity"), shall be a
corporation organized and validly existing under the laws of
the United States of America, any political subdivision
thereof or any State thereof or the District of Columbia, and
shall expressly assume, by a supplemental indenture, the due
and punctual payment of the principal of (and premium, if
any) and interest on all the Securities and the performance
of the Company's covenants and obligations under this
Indenture;
(b) immediately before and after giving effect to
such transaction, no Default or Event of Default shall have
occurred and be continuing or would result therefrom; and
(c) the Company or such Person shall have delivered
to the Trustee an Officers' Certificate and an Opinion of
Counsel, each stating that such consolidation, merger,
conveyance, transfer or lease and, if a supplemental
indenture is required in connection with such transaction,
such supplemental indenture, comply with this Article and
that all conditions precedent herein provided for relating to
such transaction have been complied with.
Notwithstanding the foregoing, the Company may merge with an
Affiliate incorporated or organized for the sole purpose of
reincorporating or reorganizing the Company in another jurisdiction to
realize tax or other benefits provided such merger meets the
requirements of clauses (a), (b) and (c) of the preceding paragraphs.
Upon any transaction or series of transactions that are of
the type described in, and are effected in accordance with, the
foregoing paragraphs, the Surviving Entity (if other than the Company)
shall succeed to, and be substituted for, and may exercise every right
and power of, the Company under this Indenture and the Securities with
the same effect as if such Surviving Entity had been named as the
Company herein; and when a Surviving Person duly assumes all of the
obligations and
<PAGE>
covenants of the Company pursuant to this Indenture and the
Securities, except in the case of a lease, the predecessor Person
shall be relieved of all such obligations.
SECTION 802. Successor Substituted.
Upon any consolidation of the Company with or merger of the
Company with or into any other corporation or any conveyance, transfer
or lease of the properties and assets of the Company substantially as
an entirety to any Person in accordance with Section 801, the
successor Person formed by such consolidation or into which the
Company is merged or to which such conveyance, transfer or lease is
made shall succeed to, and be substituted for, and may exercise every
right and power of, the Company under this Indenture with the same
effect as if such successor Person had been named as the Company
herein, and in the event of any such conveyance or transfer, the
Company (which term shall for this purpose mean the Person named as
the "Company" in the first paragraph of this Indenture or any
successor Person that shall theretofore become such in the manner
described in Section 801), except in the case of a lease, shall be
discharged of all obligations and covenants under this Indenture and
the Securities and may be dissolved and liquidated.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders.
Without notice to or the consent of any Holders, the
Company, when authorized by a Board Resolution, and the Trustee, at
any time and from time to time, may amend, waive or supplement this
Indenture and Securities and the Control Agreement and (if necessary)
enter into one or more indentures supplemental hereto, in form
reasonably satisfactory to the Trustee, for any of the following
purposes:
(1) to evidence the succession of another Person to
the Company and the assumption by any such successor of the
covenants of the Company contained herein, and in the
Securities, or
(2) to add to the covenants of the Company or to
surrender any right or power herein conferred upon the
Company for the benefit of the Holders of the Securities of
any or all series (and if such covenants or the surrender of
such right or power are to be for the benefit of less than
all series of Securities, stating that such covenants are
expressly being included or such surrenders are expressly
being made solely for the benefit of one or more specified
series), or
(3) to add any additional Events of Default in
respect of the Securities of any or all series (and if such
additional Events of Default are to be in respect of less
than all series of Securities, stating that such Events of
Default are expressly being included solely for the benefit
of one or more specified series), or
(4) to evidence and provide for the acceptance of
appointment hereunder by a successor Trustee pursuant to the
requirements of Section 611, or
<PAGE>
(5) to cure any ambiguity, to correct or supplement
any provision herein that may be inconsistent with any other
provision herein, or to add any other provisions with respect
to matters or questions arising under this Indenture;
provided that such action shall not adversely affect the
interests of the Holders of Securities of any series in any
material respect, or
(6) to secure the Securities or to add guarantors to the
Securities, or
(7) to provide for uncertificated Securities in
addition to or in place of certificated Securities, or
(8) to change or eliminate any of the provisions
herein; provided that any such change or elimination shall
become effective only when there is not Outstanding any
Security created prior to the execution of such amendment,
waiver or supplemental indenture that is entitled to the
benefit of such provision, or
(9) to establish any form of Security, as provided
in Article Two, and to provide for the issuance of any series
of Securities as provided in Article Three and to set forth
the terms thereof or to add to the rights of the Holders of
the Securities of any series; or
(10) to comply with the requirements of the
Commission in order to effect or maintain the qualification
of this Indenture under the Trust Indenture Act.
SECTION 902. Supplemental Indentures with Consent of Holders.
With the consent (including consents obtained with a
purchase of, or a tender or exchange offer for, Securities) of the
Holders of not less than a majority in principal amount of the
Outstanding Securities of each series affected by such supplemental
indenture or indenture, by Act of said Holders delivered to the
Company and the Trustee, the Company, when authorized by a Board
Resolution, and the Trustee may amend, waive or supplement this
Indenture, and (if necessary) enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this
Indenture or of modifying in any manner the rights of the Holders
under this Indenture; provided, however, that no such supplemental
indenture shall, without the consent (including consents obtained with
a purchase of, or a tender or exchange offer for, Securities) of the
Holder of each Outstanding Security affected thereby:
(1) change the Stated Maturity of the principal of
or any installment of interest on any Security, or reduce the
principal amount thereof (or premium, if any) or the rate of
interest thereon or change the coin or currency in which any
Security or any premium or the interest thereon is payable,
or impair the right to institute suit for the enforcement of
any such payment after the Stated Maturity thereof (or, in
the case of redemption, on or after the Redemption Date), or
(2) reduce the percentage in principal amount of the
Outstanding Securities of any series, the consent of whose
Holders is required for any such supplemental indenture, or
the consent of whose Holders is required for any
<PAGE>
waiver of compliance with certain provisions of this
Indenture or certain defaults hereunder and their
consequences provided for in this Indenture, or
(3) subordinate in right of payment, or otherwise
subordinate, the Securities to any other Debt (other than
Senior Debt), or
(4) modify any provision of this Indenture relating
to the calculation of accreted value, or
(5) modify any of the provisions of this Section or
Sections 513, except to increase any such percentage or to
provide that certain other provisions of this Indenture
cannot be modified or waived without the consent of the
Holder of each Outstanding Security affected thereby.
A supplemental indenture which changes or eliminates any
covenant or other provision of this Indenture which has expressly been
included solely for the benefit of one or more particular series of
Securities, or which modifies the rights of the Holders of Securities
of such series with respect to such covenant or other provision, shall
be deemed not to affect the rights under this Indenture of the Holders
of Securities of any other series.
It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such Act shall approve the
substance thereof.
SECTION 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by,
any supplemental indenture permitted by this Article or the
modifications thereby of the trusts created by this Indenture, the
Trustee shall be entitled to receive, and shall be fully protected in
relying upon, an Opinion of Counsel stating that the execution of such
supplemental indenture is authorized or permitted by this Indenture.
The Trustee may, but shall not (except to the extent required in the
case of a supplemental indenture entered into under Section 901(4) or
901(10)) be obligated to, enter into any such supplemental indenture
that affects the Trustee's own rights, duties or immunities under this
Indenture or otherwise.
SECTION 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this
Article, this Indenture shall be modified in accordance therewith, and
such supplemental indenture shall form a part of this Indenture for
all purposes; and every Holder of Securities theretofore or thereafter
authenticated and delivered hereunder shall be bound thereby.
SECTION 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to the
Article shall conform to the requirements of the Trust Indenture Act
as then in effect if this Indenture shall then be required to be
qualified under the TIA.
<PAGE>
SECTION 906. Reference in Securities to Supplemental Indentures.
Securities authenticated and delivered after the execution
of any supplemental indenture pursuant to this Article may, and shall
if required by the Trustee, bear a notation in form approved by the
Trustee as to any matter provided for in such supplemental indenture.
If the Company shall so determine, replacement Securities so modified
as to conform, in the opinion of the Trustee and the Company, to any
such supplemental indenture may be prepared and executed by the
Company and authenticated and delivered by the Trustee in exchange for
Outstanding Securities.
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium, If Any, and Interest.
With respect to each series of Securities, the Company will
duly and punctually pay the principal of (and premium, if any) and
interest on such Securities in accordance with their terms and this
Indenture, and will duly comply with all the other terms, agreements
and conditions contained in, or made in the Indenture for the benefit
of, the Securities of such series.
SECTION 1002. Maintenance of Office or Agency.
The Company will maintain in 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 Trustee's New York Corporate Trust Office at 40 Broad Street, 5th
Floor, Suite 550, New York, New York 10004 shall be such office or
agency of the Company, unless the Company shall designate and maintain
some other office or agency for one or more of such purposes. The
Company will give prompt written notice to the Trustee of any change
in the location of any such office or agency. If at any time the
Company shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served
at the Corporate Trust Office of the Trustee, and the Company hereby
appoints the Trustee as its agent to receive all such presentations,
surrenders, notices and demands.
The Company may also from time to time designate one or more
other offices or agencies (in or outside of The City of New York)
where the Securities may be presented or surrendered for any or all
such purposes and may from time to time rescind any such designation;
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 City of New York for such purposes. The Company will
give prompt written notice to the Trustee of any such designation or
rescission and any change in the location of any such other office or
agency.
<PAGE>
SECTION 1003. Money for Security Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent
for any series of Securities, it will, on or before each due date of
the principal of (or premium, if any) or interest on, any of the
Securities of such series, segregate and hold in trust for the benefit
of the Persons entitled thereto a sum sufficient to pay the principal
of (or premium, if any) or interest so becoming due until such sums
shall be paid to such Persons or otherwise disposed of as herein
provided and will promptly notify the Trustee of its action or failure
so to act.
Whenever the Company shall have one or more Paying Agents
for any series of such Securities, it will, on or before each due date
of the principal of (or premium, if any) or interest any Securities of
such series, deposit with a Paying Agent a sum sufficient to pay the
principal (and premium, if any) or interest so becoming due, such sum
to be held in trust for the benefit of the Persons entitled to such
principal, premium or interest, and (unless such Paying Agent is the
Trustee) the Company will promptly notify the Trustee of such action
or any failure so to act.
The Company will cause each Paying Agent (other than the
Company or the Trustee for any series of Securities) to execute and
deliver to the Trustee an instrument in which such Paying Agent shall
agree with the Trustee, subject to the provisions of this Section,
that such Paying Agent will:
(1) hold all sums held by it for the payment of the
principal of (and premium, if any) or interest on Securities
of such series in trust for the benefit of the Persons
entitled thereto until such sums shall be paid to such
Persons or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the
Company (or any other obligor upon the Securities of such
series) in the making of any payment of principal (and
premium, if any) or interest on the Securities of such
series; and
(3) at any time during the continuance of any such
default, upon the written request of the Trustee, forthwith
pay to the Trustee all sums so held in trust by such Paying
Agent.
The Company may at any time, for the purpose of obtaining
the satisfaction and discharge of this Indenture with respect to any
series of Securities or for any other purpose, pay, or by Company
Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent in respect of each and every
series of Securities as to which it seeks to discharge this Indenture
or, if for any other purpose, all sums so held in trust by the Company
in respect of all Securities, such sums to be held by the Trustee upon
the same trusts as those upon which such sums were held by the Company
or such Paying Agent; and, upon such payment by any Paying Agent to
the Trustee, such Paying Agent shall be released from all further
liability with respect to such sums.
Any money deposited with the Trustee or any Paying Agent, or
then held by the Company, in trust for the payment of the principal of
(or premium, if any) or interest on any Security of any series and
remaining unclaimed for two years after such principal, premium or
interest has become due and payable shall be paid to the Company
<PAGE>
on Company Request, or (if then held by the Company) shall be
discharged from such trust; and the Holder of such Security shall
thereafter, as an unsecured general creditor, look only to the Company
for payment thereof, and all liability of the Trustee or such Paying
Agent with respect to such trust money, and all liability of the
Company as trustee thereof, shall thereupon cease.
The Company initially authorizes the Trustee to act as
Paying Agent for the Securities on its behalf. The Company may at any
time and from time to time authorize one or more Persons to act as
Paying Agent in addition to or in place of the Trustee with respect to
any series of Securities issued under this Indenture.
SECTION 1004. Statement by Officers as to Default.
The Company will deliver to the Trustee, within 120 days
after the end of each fiscal year, a written statement signed by the
principal executive officer, principal financial officer or principal
accounting officer of the Company, stating that
(1) a review of the activities of the Company during
such year and of the Company's performance under this
Indenture and under the terms of the Securities has been made
under his supervision; and
(2) to the best of his knowledge, based on such
review, the Company has complied with all conditions and
covenants under this Indenture through such year, or, if
there has been a Default in the fulfillment of any such
obligation, specifying each such Default known to him and the
nature and status thereof (other than with respect to Debt in
the principal amount of less than $15,000,000).
For purposes of this Section 1004, compliance shall be
determined without regard to any grace period or requirement of notice
provided pursuant to the terms of this Indenture.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article.
The Company may reserve the right to redeem and pay before
Stated Maturity all or any part of the Securities of any series,
either by optional redemption, sinking or purchase fund or analogous
obligation or otherwise, by provision therefor in the form of Security
for such series established and approved pursuant to Section 202 and
on such terms as are specified in such form or in the Board Resolution
or indenture supplemental hereto with respect to Securities of such
series as provided in Section 301 Redemption of Securities of any
series shall be made in accordance with the terms of such Securities
and, to the extent that this Article does not conflict with such
terms, the succeeding Sections of this Article.
<PAGE>
SECTION 1102. Election to Redeem; Notice to Trustee.
In the case of any redemption of Securities (i) prior to the
expiration of any restriction on such redemption provided in the terms
of such securities or elsewhere in this Indenture, or (ii) pursuant to
an election of the Company which is subject to a condition specified
in the terms of such Securities, the Company shall furnish the Trustee
with an Officers' Certificate evidencing compliance with such
restriction or condition.
SECTION 1103. Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities of like tenor and terms of
any series are to be redeemed, the particular Securities to be
redeemed shall be selected not more than 60 days prior to the
Redemption Date by the Trustee from the Outstanding Securities of such
series not previously called for redemption 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 then
listed on a national securities exchange, on a pro rata basis or by
lot or any other method as the Trustee shall deem fair and appropriate
and that may provide for the selection for redemption of portions of
the principal of Securities of such series of a denomination larger
than the minimum authorized denomination for Securities of that
series. Unless otherwise provided in the terms of a particular series
of Securities, the portions of the principal of Securities so selected
for partial redemption shall be equal to the minimum authorized
denomination of the Securities of such series, or an integral multiple
thereof, and the principal amount which remains outstanding shall not
be less than the minimum authorized denomination for Securities of
such series. If less than all the Securities of unlike tenor and terms
of a series are to be redeemed, the particular Securities to be
redeemed shall be selected by the Company.
The Trustee shall promptly notify the Company in writing of
the Securities selected for redemption and, in the case of any
Security selected for partial redemption, the principal amount thereof
to be redeemed.
For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to redemption of
Securities shall relate, in the case of any Security redeemed or to be
redeemed only in part, to the portion of the principal amount of such
Security that has been or is to be redeemed.
SECTION 1104. Notice of Redemption.
Notice of redemption shall be given in the manner provided
for in Section 106 not less than 30 nor more than 60 days prior to the
Redemption Date, to each Holder of Securities to be redeemed.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price and the amount of accrued
interest to the Redemption Date payable as provided in
Section 1106, if any,
(3) if less than all Outstanding Securities of any
series are to be redeemed, the identification including CUSIP
numbers (and, in the case of a
<PAGE>
partial redemption, the principal amounts) of the particular
Securities to be redeemed,
(4) in case any Security is to be redeemed in part
only, the notice that relates to such Security shall state
that on and after the Redemption Date, upon surrender of such
Security, the holder will receive, without charge, a new
Security or Securities of authorized denominations for the
principal amount thereof remaining unredeemed,
(5) that on the Redemption Date the Redemption Price
(and accrued interest, if any, to the Redemption Date payable
as provided in Section 1106) will become due and payable upon
each such Security, or the portion thereof, to be redeemed,
and that interest thereon will cease to accrue on and after
said date,
(6) the place or places where such Securities are to
be surrendered for payment of the Redemption Price and
accrued interest, if any, and
(7) that the redemption is on account of a sinking
or purchase fund, or other analogous obligation, if that be
the case.
Notice of redemption of Securities to be redeemed at the
election of the Company shall be given by the Company or, at the
Company's request, by the Trustee in the name and at the expense of
the Company.
SECTION 1105. Deposit of Redemption Price.
Prior to 12:00 noon, New York City time, on any Redemption
Date, the Company shall deposit with the Trustee or with a Paying
Agent (or, if the Company is acting as its own Paying Agent, segregate
and hold in trust as provided in Section 1003) an amount of money
sufficient to pay the Redemption Price of, and accrued interest on,
all the Securities that are to be redeemed on that date.
SECTION 1106. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the
Securities so to be redeemed shall, on the Redemption Date, become due
and payable at the Redemption Price therein specified (together with
accrued interest, if any, to the Redemption Date), and from and after
such date (unless the Company shall default in the payment of the
Redemption Price and accrued interest) such Securities shall cease to
bear interest. Upon surrender of any such Security for redemption in
accordance with said notice, such Security shall be paid by the
Company at the Redemption Price, together with accrued interest, if
any, to the Redemption Date; provided, however, that installments of
interest whose Stated Maturity is on or prior to the Redemption Date
shall be payable to the Holders of such Securities, or one or more
Predecessor Securities, registered as such at the close of business on
the relevant Record Dates according to their terms and the provisions
of Section 307.
On and after any Redemption Date, if money sufficient to pay
the Redemption Price of any accrued and unpaid interest on Securities
called for redemption shall have been made available in accordance
with Section 1105, the Securities called for redemption will cease to
accrue interest and the only right of the Holders of such
<PAGE>
Securities will be to receive payment of the Redemption Price of and,
subject to the provision in the preceding paragraph, any accrued and
unpaid interest on such Securities to the Redemption Date.
If any Security called for redemption shall not be so paid
upon surrender thereof for redemption, the principal (and premium, if
any) shall, until paid, bear interest from the Redemption Date at the
rate borne by the Security.
SECTION 1107. Securities Redeemed in Part.
Any Security that is to be redeemed only in part shall be
surrendered at the office or agency of the Company maintained for such
purpose pursuant to Section 1002 (with, if the Company or the Trustee
so requires, due endorsement by, or a written instrument of transfer
in form satisfactory to the Company and the Trustee duly executed by,
the Holder thereof or such Holders attorney duly authorized in
writing), and the Company shall execute, and the Trustee shall
authenticate and deliver to the Holder of such Security without
service charge, a new Security or Securities, of any authorized
denomination as requested by such Holder, in aggregate principal
amount equal to and in exchange for the unredeemed portion of the
principal of the Security so surrendered.
SECTION 1108. Provisions with Respect to Any Sinking Funds.
Unless the form or terms of any series of Securities shall
provide otherwise, in lieu of making all or any part of any mandatory
sinking fund payment with respect to such series of Securities in
cash, the Company may at its option (1) deliver to the Trustee for
cancelation any Securities of such series theretofore acquired by the
Company, or (2) receive credit for any Securities of such series (not
previously so credited) acquired by the Company and theretofore
delivered to the Trustee for cancelation or redeemed by the Company
other than through the mandatory sinking fund, and if it does so then
(i) Securities so delivered or credited shall be credited at the
applicable sinking fund Redemption Price with respect to Securities of
such series, and (ii) on or before the 60th day next preceding each
sinking fund Redemption Date with respect to such series of
Securities, the Company will deliver to the Trustee (A) an Officers'
Certificate specifying the portions of such sinking fund payment to be
satisfied by payment of cash and by delivery or credit of Securities
of such series acquired by the Company or so redeemed, and (B) such
Securities so acquired, to the extent not previously surrendered. Such
Officers' Certificate shall also state the basis for such credit and
that the Securities for which the Company elects to receive credit
have not been previously so credited and were not redeemed by the
Company through operation of the mandatory sinking fund, if any,
provided with respect to such Securities and shall also state that no
Event of Default with respect to Securities of such series has
occurred and is continuing All Securities so delivered to the Trustee
shall be canceled by the Trustee and no Securities shall be
authenticated in lieu thereof.
If the sinking fund payment or payments (mandatory or
optional) with respect to any series of Securities made in cash plus
any unused balance of any preceding sinking fund payments with respect
to Securities of such series made in cash shall exceed $50,000 (or a
lesser sum if the Company shall so request), unless otherwise provided
by the terms of such series of Securities, that cash shall be applied
by the Trustee on the sinking fund Redemption Date with respect to
Securities of such series next following the date of such payment to
the redemption of Securities of such series at the applicable
<PAGE>
sinking fund Redemption Price with respect to Securities of such
series, together with accrued interest, if any, to the date fixed for
redemption, with the effect provided in Section 1106. The Trustee
shall select, in the manner provided in Section 1103, for redemption
on such sinking fund Redemption Date a sufficient principal amount of
Securities of such series to utilize that cash and shall thereupon
cause notice of redemption of the Securities of such series for the
sinking fund to be given in the manner provided in Section 1104 (and
with the effect provided in Section 1106) for the redemption of
Securities in part at the option of the Company. Any sinking fund
moneys not so applied or allocated by the Trustee to the redemption of
Securities of such series shall be added to the next cash sinking fund
payment with respect to Securities of such series received by the
Trustee and, together with such payment, shall be applied in
accordance with the provisions of this Section 1108. Any and all
sinking fund moneys with respect to Securities of any series held by
the Trustee at the Maturity of Securities of such series, and not held
for the payment or redemption of particular Securities of such series,
shall be applied by the Trustee, together with other moneys, if
necessary, to be deposited sufficient for the purpose, to the payment
of the principal of the Securities of such series at Maturity.
On or before each sinking fund Redemption Date provided with
respect to Securities of any series, the Company shall pay to the
Trustee in cash a sum equal to all accrued interest, if any, to the
date fixed for redemption on Securities to be redeemed on such sinking
fund Redemption Date pursuant to this Section 1108.
ARTICLE TWELVE
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1201. Applicability of Article; Company's Option to
Effect Defeasance or Covenant Defeasance. If, pursuant to Section 301,
provision is made for either or both of (a) defeasance of the
Securities of or within a series under Section 1202 or (b) covenant
defeasance of the Securities of or within a series under Section 1203,
then the provisions of such Section or Sections, as the case may be,
together with the other provisions of this Article (with such
modifications thereto as may be specified pursuant to Section 301 with
respect to any Securities), shall be applicable to such Securities,
and the Company may at its option by Board Resolution, at any time,
with respect to such Securities, elect to have Section 1202 (if
applicable) or Section 1203 (if applicable) be applied to such
Outstanding Securities upon compliance with the conditions set forth
below in this Article.
SECTION 1202. Defeasance and Discharge. Upon the Company's
exercise of the above option applicable to this Section with respect
to any Securities of or within a series, the Company shall be deemed
to have been discharged from its obligations with respect to such
Outstanding Securities on the date the conditions set forth in Section
1204 are satisfied (hereinafter, "defeasance"). For this purpose, such
defeasance means that the Company shall be deemed to have paid and
discharged the entire indebtedness represented by such Outstanding
Securities and any coupons appertaining thereto, which shall
thereafter be deemed to be "Outstanding" only for the purposes of
Section 1205 and the other Sections of this Indenture referred to in
clauses (A) and (B) of this Section, and to have satisfied all its
other obligations under such Securities and any coupons appertaining
thereto and this Indenture insofar as such
<PAGE>
Securities and any coupons appertaining thereto are concerned (and the
Trustee, at the expense of the Company, shall execute proper
instruments acknowledging the same), except for the following which
shall survive until otherwise terminated or discharged hereunder: (A)
the rights of Holders of such Outstanding Securities and any coupons
appertaining thereto to receive, solely from the trust fund described
in Section 1204 and as more fully set forth in such Section, payments
in respect of the principal of (and premium, if any) and interest, if
any, on such Securities and any coupons appertaining thereto when such
payments are due, (B) the Company's obligations with respect to such
Securities under Sections 305, 306, 1002 and 1003, (C) the rights,
powers, trusts, duties and immunities of the Trustee hereunder and (D)
this Article. Subject to compliance with this Article Twelve, the
Company may exercise its option under this Section notwithstanding the
prior exercise of its option under Section 1203 with respect to such
Securities and any coupons appertaining thereto.
SECTION 1203. Covenant Defeasance. Upon the Company's
exercise of the above option applicable to this Section with respect
to any Securities of or within a series, the Company shall be released
from its obligations under Section 1004, and, if specified pursuant to
Section 301, its obligations under any other covenant, with respect to
such Outstanding Securities and any coupons appertaining thereto on
and after the date the conditions set forth in Section 1204 are
satisfied (hereinafter, "covenant defeasance"), and such Securities
and any coupons appertaining thereto shall thereafter be deemed to be
not "Outstanding" for the purposes of any direction, waiver, consent
or declaration or Act of Holders (and the consequences of any thereof)
in connection with Section 1004, or such other covenant, but shall
continue to be deemed "Outstanding" for all other purposes hereunder.
For this purpose, such covenant defeasance means that, with respect to
such Outstanding Securities and any coupons appertaining thereto, the
Company may omit to comply with and shall have no liability in respect
of any term, condition or limitation set forth in any such Section or
such other covenant, whether directly or indirectly, by reason of any
reference elsewhere herein to any such Section or such other covenant
or by reason of reference in any such Section or such other covenant
to any other provision herein or in any other document and such
omission to comply shall not constitute a default or an Event of
Default under Section 501(e) or 501(h) or otherwise, as the case may
be, but, except as specified above, the remainder of this Indenture
and such Securities and any coupons appertaining thereto shall be
unaffected thereby.
SECTION 1204. Conditions to Defeasance or Covenant
Defeasance. The following shall be the conditions to application of
Section 1202 or Section 1203 to any Outstanding Securities of or
within a series and any coupons appertaining thereto:
(a) The Company shall irrevocably have deposited or
caused to be deposited with the Trustee (or another trustee
satisfying the requirements of Section 609 who shall agree to
comply with the provisions of this Article Fourteen
applicable to it) as trust funds in trust for the purpose of
making the following payments, specifically pledged as
security for, and dedicated solely to, the benefit of the
Holders of such Securities and any coupons appertaining
thereto, (1) an amount (in such currency, currencies of
currency unit in which such Securities and any coupons
appertaining thereto are then specified as payable at Stated
Maturity), or (2) U.S. Government Obligations applicable to
such Securities and coupons appertaining thereto (determined
on the basis of the currency, currencies or currency unit in
which such Securities and coupons appertaining thereto are
then specified as payable at Stated Maturity) which
<PAGE>
through the scheduled payment of principal and interest in
respect thereof in accordance with their terms will provide,
not later than one day before the due date of any payment of
principal of (and premium, if any) and interest, if any, on
such Securities and any coupons appertaining thereto, money
in an amount, or (3) a combination thereof, in any case, in
an amount, sufficient, in the opinion of a nationally
recognized firm of independent public accountants expressed
in a written certification thereof delivered to the Trustee,
to pay and discharge, and which shall be applied by the
Trustee (or other qualifying trustee) to pay and discharge,
(i) the principal of (and premium, if any) and interest, if
any, on such Outstanding Securities and any coupons
appertaining thereto on the Stated Maturity of such principal
or installment of principal or interest and (ii) any
mandatory sinking fund payments or analogous payments
applicable to such Outstanding Securities and any coupons
appertaining thereto on the day on which such payments are
due and payable in accordance with the terms of this
Indenture and of such Securities and any coupons appertaining
thereto.
(b) Such defeasance or covenant defeasance shall not
result in a breach or violation of, or constitute a default
under, this Indenture or any other material agreement or
instrument to which the Company is a party or by which it is
bound.
(c) No Event of Default or event which with notice
or lapse of time or both would become an Event of Default
with respect to such Securities and any coupons appertaining
thereto shall have occurred and be continuing on the date of
such deposit or, insofar as Sections 501(f) and 501(g) are
concerned, at any time during the period ending on the 91st
day after the date of such deposit (it being understood that
this condition shall not be deemed satisfied until the
expiration of such period).
(d) In the case of an election under Section 1202,
the Company shall have delivered to the Trustee an Opinion of
Counsel stating that (i) the Company has received from, or
there has been published by, the Internal Revenue Service a
ruling, or (ii) since the date of execution of this
Indenture, there has been a change in the applicable Federal
income tax law, in either case to the effect that, and based
thereon such opinion shall confirm that, the Holders of such
Outstanding Securities and any coupons appertaining thereto
will not recognize income, gain or loss for Federal income
tax purposes as a result of such covenant defeasance and will
be subject to Federal income tax on the same amounts, in the
same manner and at the same time as would have been the case
if such defeasance had not occurred.
(e) In the case of an election under Section 1203,
the Company shall have delivered to the Trustee an Opinion of
Counsel to the effect that the Holders of such Outstanding
Securities and any coupons appertaining thereto will not
recognize income, gain or loss for Federal income tax
purposes as a result of such covenant defeasance and will be
subject to Federal income tax on the same amounts, in the
same manner and at the same times as would have been the case
if such covenant defeasance had not occurred.
(f) The Company shall have delivered to the Trustee
an Officers' Certificate and an Opinion of Counsel, each
stating that all conditions precedent to the defeasance under
Section 1202 or the covenant defeasance under
<PAGE>
Section 1203 (as the case may be) have been complied with and
an Opinion of Counsel to the effect that either (i) as a
result of a deposit pursuant to subsection (a) above and the
related exercise of the Company's option under Section 1202
or Section 1203 (as the case may be), registration is not
required under the Investment Company Act of 1940, as deposit
or by the Trustee for such trust funds or (ii) all necessary
registrations under said Act have been effected.
(g) Notwithstanding any other provisions of this
Section, such defeasance or covenant defeasance shall be
effected in compliance with any additional or substitute
terms, conditions or limitations which may be imposed on the
Company in connection therewith pursuant to Section 301.
SECTION 1205. Deposited Money and U.S. Government
Obligations to Be Held in Trust; Other Miscellaneous Provisions.
Subject to the provisions of the penultimate paragraph of Section
1003, all money and U.S. Government Obligations (or other property as
may be provided pursuant to Section 301) (including the proceeds
thereof) deposited with the Trustee (or other qualifying trustee,
collectively for purposes of this Section 1205, the "Trustee")
pursuant to Section 1204 in respect of any Outstanding Securities of
any series and any coupons appertaining thereto shall be held in trust
and applied by the Trustee, in accordance with the provisions of such
Securities and any coupons appertaining thereto and this Indenture, to
the payment, either directly or through any Paying Agent (including
the Company acting as its own Paying Agent) as the Trustee may
determine, to the Holders of such Securities and any coupons
appertaining thereto of all sums due and to become due thereon in
respect of principal (and premium, if any) and interest and Additional
Amounts, if any, but such money need not be segregated from other
funds except to the extent required by law.
The Company shall pay and indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against the U.S.
Government Obligations deposited pursuant to Section 1204 or the
principal and interest received in respect thereof other than any such
tax, fee or other charge which by law is for the account of the
holders of such Outstanding Securities and any coupons appertaining
thereto.
Anything in this Article to the contrary notwithstanding,
the Trustee shall deliver or pay to the Company from time to time upon
Company Request any money or U.S. Government Obligations (or other
property and any proceeds therefrom) held by it as provided in Section
1204 which, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification
thereof delivered to the Trustee, are in excess of the amount thereof
which would then be required to be deposited to effect a defeasance or
covenant defeasance, as applicable, in accordance with this Article.
ARTICLE THIRTEEN
SUBORDINATION
SECTION 1301. Agreement To Subordinate. The Company agrees,
and each Holder by accepting a Security agrees, that the Debt
evidenced by the Securities is subordinated in right of payment, to
the extent and in the manner provided in this Article XIII, to the
payment when due of all Senior Debt of the Company and that the
<PAGE>
subordination is for the benefit of and enforceable by the holders of
such Senior Debt. The Securities shall in all respects rank pari passu
with any future Senior Subordinated Debt and senior to all existing
and future junior subordinated Debt of the Company, and only Senior
Debt shall rank senior to the Securities in accordance with the
provisions set forth herein. All provisions of this Article 13 shall
be subject to Section 1312.
SECTION 1302. Liquidation, Dissolution, Bankruptcy. Upon any
payment or distribution of the assets of the Company upon a total or
partial liquidation, dissolution or winding up of the Company or in a
bankruptcy, reorganization, insolvency, receivership or similar
proceeding relating to the Company or its Property:
(1) the holders of Senior Debt will be entitled to
receive payment in full in cash before the Holders of the
Securities are entitled to receive any payment of principal
of or interest on the Securities, except that Holders of
Securities may receive and retain shares of stock and any
debt securities that are subordinated to the Senior Debt to
at least the same extent as the Securities; and
(2) until the Senior Debt is paid in full in cash,
any distribution to which Holders of the Securities would be
entitled but for this Article 13 will be made to holders of
the Senior Debt as their interests may appear.
SECTION 1303. Default on Senior Debt. The Company may not
pay principal of, or premium, if any, or interest on, the Securities,
or make any deposit pursuant to Section 1202, and may not repurchase,
redeem or otherwise retire any Securities (collectively, "pay the
Securities") if (a) any principal, premium or interest in respect of
any Senior Debt is not paid within any applicable grace period
(including at maturity) or (b) any other default on Senior Debt occurs
and the maturity of such Senior Debt is accelerated in accordance with
its terms unless, in either case, (1) the default has been cured or
waived and any such acceleration has been rescinded or (2) such Senior
Debt has been paid in full in cash; provided, however, that the
Company may pay the Securities without regard to the foregoing if the
Company and the Trustee receive written notice approving such payment
from the Representative of such issue of Senior Debt. During the
continuance of any default (other than a default described in clause
(a) or (b) of the preceding sentence) with respect to any Designated
Senior Debt pursuant to which the maturity thereof may be accelerated
immediately without further notice (except any notice required to
effect the acceleration) or the expiration of any applicable grace
period, the Company may not pay the Securities for a period (a
"Payment Blockage Period") commencing upon the receipt by the Company
and the Trustee of written notice of such default from the
Representative of the holders of such Designated Senior Debt
specifying an election to effect a Payment Blockage Period (a "Payment
Blockage Notice") and ending 179 days thereafter (unless such Payment
Blockage Notice is earlier terminated (a) by written notice to the
Trustee and the Company from the Representative that gave such Payment
Blockage Notice, (b) because such default is no longer continuing or
(c) because such Designated Senior Debt has been repaid in full in
cash). Unless the holders of such Designated Senior Debt or the
Representative of such holders have accelerated the maturity of such
Designated Senior Debt and not rescinded such acceleration, the
Company may (unless otherwise prohibited as described in the first
sentence of this paragraph) resume payments on the Securities after
the end of such Payment Blockage Period. Not more than one Payment
Blockage Notice with respect to all issues of Designated Senior Debt
may be given in any consecutive 360-day period,
<PAGE>
irrespective of the number of defaults with respect to one or more
issues of Designated Senior Debt during such period.
SECTION 1304. Acceleration of Payment of Securities. If
payment of the Securities is accelerated when any Designated Senior
Debt is outstanding, the Company may not pay the Securities until
three Business Days after the Representatives of all issues of
Designated Senior Debt receive notice of such acceleration and,
thereafter, may pay the Securities only if this Indenture otherwise
permits payment at that time.
SECTION 1305. When Distribution Must Be Paid Over. If a
distribution is made to Holders that because of this Article XIII
should not have been made to them, the Holders who receive the
distribution shall hold it in trust for holders of Senior Debt and pay
it over to them as their interests may appear.
SECTION 1306. Subrogation. After all Senior Debt is paid in
full and until the Securities are paid in full, Holders shall be
subrogated to the rights of holders of Senior Debt to receive
distributions applicable to Senior Debt. A distribution made under
this Article XIII to holders of Senior Debt that otherwise would have
been made to Holders is not, as between the Company and Holders, a
payment by the Company on such Senior Debt.
SECTION 1307. Relative Rights. This Article XIII defines the
relative rights of Holders and holders of Senior Debt. Nothing in this
Indenture shall:
(1) impair, as between the Company and Holders, the
obligation of the Company, which is absolute and
unconditional, to pay principal of and interest on the
Securities in accordance with their terms; or
(2) prevent the Trustee or any Holder from
exercising its available remedies upon a Default or an Event
of Default, subject to the rights of holders of Senior Debt
to receive distributions otherwise payable to Holders.
SECTION 1308. Subordination May Not Be Impaired by Company.
No right of any holder of Senior Debt to enforce the subordination of
the Debt evidenced by the Securities shall be impaired by any act or
failure to act by the Company or by its failure to comply with this
Indenture.
SECTION 1309. Rights of Trustee and Paying Agent.
Notwithstanding Section 1303, the Trustee or Paying Agent may continue
to make payments on the Securities and shall not be charged with
knowledge of the existence of facts that would prohibit the making of
any such payments unless, not less than two Business Days prior to the
date of such payment, a Trust Officer receives notice satisfactory to
it that payments may not be made under this Article XIII. The Company,
the Registrar or co-registrar, the Paying Agent, a Representative or a
holder of Senior Debt may give the notice; provided, however, that, if
an issue of Senior Debt has a Representative, only the Representative
may give the notice.
The Trustee in its individual or any other capacity may hold
Senior Debt with the same rights it would have if it were not Trustee.
The Registrar and co-registrar and the Paying Agent may do the same
with like rights. The Trustee shall be entitled to
<PAGE>
all the rights set forth in this Article XIII with respect to any
Senior Debt that may at any time be held by it, to the same extent as
any other holder of such Senior Debt; and nothing in Article VI shall
deprive the Trustee of any of its rights as such holder. Nothing in
this Article XIII shall apply to claims of, or payments to, the
Trustee under or pursuant to Section 607.
SECTION 1310. Distribution or Notice to Representative.
Whenever a distribution is to be made or a notice given to holders of
Senior Debt, the distribution may be made and the notice given to
their Representative (if any).
SECTION 1311. Article XIII Not To Prevent Events of Default
or Limit Right To Accelerate. The failure to make a payment pursuant
to the Securities by reason of any provision in this Article XIII
shall not be construed as preventing the occurrence of a Default.
Nothing in this Article XIII shall have any effect on the right of the
Holders or the Trustee to accelerate the maturity of the Securities.
SECTION 1312. Trust Moneys Not Subordinated. Notwithstanding
anything contained herein to the contrary, payments from money or the
proceeds of U.S. Government Obligations held in trust under Article
XII by the Trustee for the payment of principal of and interest on the
Securities shall not be subordinated to the prior payment of any
Senior Debt or subject to the restrictions set forth in this Article
XIII, and none of the Holders shall be obligated to pay over any such
amount to the Company or any holder of Senior Debt or any other
creditor of the Company.
SECTION 1313. Trustee Entitled To Rely. Upon any payment or
distribution pursuant to this Article XIII, the Trustee and the
Holders shall be entitled to rely (i) upon any order or decree of a
court of competent jurisdiction in which any proceedings of the nature
referred to in Section 1302 are pending, (ii) upon a certificate of
the liquidating trustee or agent or other Person making such payment
or distribution to the Trustee or to the Holders or (iii) upon the
Representatives for the holders of Senior Debt for the purpose of
ascertaining the Persons entitled to participate in such payment or
distribution, the holders of Senior Debt and other Debt 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 XIII. In the event that the Trustee determines, in
good faith, that evidence is required with respect to the right of any
Person as a holder of Senior Debt to participate in any payment or
distribution pursuant to this Article XIII, the Trustee may request
such Person to furnish evidence to the reasonable satisfaction of the
Trustee as to the amount of such Senior Debt held by such Person, the
extent to which such Person is entitled to participate in such payment
or distribution and other facts pertinent to the rights of such Person
under this Article 13, 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.
The provisions of Sections 601 and 603 shall be applicable to all
actions or omissions of actions by the Trustee pursuant to this
Article XIII.
SECTION 1314. Trustee To Effectuate Subordination. Each
Holder by accepting a Security authorizes and directs the Trustee on
his behalf to take such action as may be necessary or appropriate to
acknowledge or effectuate the subordination between the Holders and
the holders of Senior Debt as provided in this Article XIII and
appoints the Trustee as attorney-in-fact for any and all such
purposes.
<PAGE>
SECTION 1315. Trustee Not Fiduciary for Holders of Senior
Debt. The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Debt and shall not be liable to any such holders if
it shall mistakenly pay over or distribute to Holders or the Company
or any other Person, money or assets to which any holders of Senior
Debt shall be entitled by virtue of this Article 13 or otherwise.
SECTION 1316. Reliance by Holders of Senior Debt on
Subordination Provisions. Each Holder by accepting a Security
acknowledges and agrees that the foregoing subordination provisions
are, and are intended to be, an inducement and a consideration to each
holder of any Senior Debt, whether such Senior Debt was created or
acquired before or after the issuance of the Securities, to acquire
and continue to hold, or to continue to hold, such Senior Debt and
such holder of such Senior Debt shall be deemed conclusively to have
relied on such subordination provisions in acquiring and continuing to
hold, or in continuing to hold, such Senior Debt.
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed and attested, all as of the day and year
first above written.
TELIGENT, INC.
By
---------------------------------
Title:
FIRST UNION NATIONAL BANK
By
---------------------------------
Title:
<PAGE>
TABLE OF CONTENTS
Page
PARTIES..............................................................1
RECITALS OF THE COMPANY..............................................1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions..........................................1
Act................................................................2
Additional Amounts.................................................2
Affiliate..........................................................2
Authenticating Agent...............................................2
Board of Directors.................................................2
Board Resolution...................................................2
Business Day.......................................................2
Commission.........................................................2
Company............................................................2
Company Request or Company Order...................................3
Corporate Trust Office.............................................3
Debt...............................................................3
Default............................................................3
Defaulted Interest.................................................3
Depositary.........................................................3
Designated Senior Debt.............................................3
Event of Default...................................................3
Exchange Act.......................................................3
Global Security....................................................3
Holder.............................................................3
Indenture or this Indenture........................................3
Interest...........................................................4
Interest Payment Date..............................................4
Maturity...........................................................4
Officers' Certificate..............................................4
Opinion of Counsel.................................................4
Original Issue Discount Security...................................4
Outstanding........................................................4
Paying Agent.......................................................5
Person.............................................................5
Predecessor Security...............................................5
Property...........................................................6
Redemption Date....................................................6
Redemption Price...................................................6
Regular Record Date................................................6
Representative.....................................................6
<PAGE>
Responsible Officer................................................6
Securities Act.....................................................6
Security or Securities.............................................6
Security Register and Security Registrar...........................6
Senior Debt........................................................6
Special Record Date................................................6
Senior Subordinated Debt...........................................6
Stated Maturity....................................................7
Subsidiary.........................................................7
Trust Indenture Act or TIA.........................................7
Trust Officer......................................................7
Trustee............................................................7
U.S. Government Obligations........................................7
Vice President.....................................................8
Voting Stock.......................................................8
SECTION 102. Compliance Certificates and Opinions.................8
SECTION 103. Form of Documents Delivered to Trustee...............9
SECTION 104. Acts of Holders......................................9
SECTION 105. Notices, Etc., to Trustee and Company...............10
SECTION 106. Notice to Holders; Waiver...........................11
SECTION 107. Effect of Headings, Table of Contents and Recitals..11
SECTION 108. Successors and Assigns..............................11
SECTION 109. Separability Clause.................................11
SECTION 110. Benefits of Indenture...............................11
SECTION 111. Governing Law.......................................12
SECTION 112. Legal Holidays......................................12
SECTION 113. No Recourse Against Others..........................12
SECTION 114. Exhibits and Schedules..............................12
SECTION 115. Counterparts........................................12
SECTION 116. Judgment Currency...................................12
SECTION 117. Duplicate Originals.................................13
SECTION 118. Incorporation by Reference of TIA...................13
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally.....................................13
SECTION 202. Forms of Securities.................................13
SECTION 203. Form of Trustee's Certificate of Authentication.....14
SECTION 204. Securities Issuable in the Form of a Global
Security..........................................14
ARTICLE THREE
THE SECURITIES
SECTION 301. Title and Terms.....................................16
SECTION 302. Denominations.......................................19
SECTION 303. Execution, Authentication, Delivery and Dating......19
SECTION 304. Temporary Securities................................20
SECTION 305. Registration, Transfer and Exchange.................21
<PAGE>
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities....22
SECTION 307. Payment of Interest; Interest Rights Preserved......23
SECTION 308. Persons Deemed Owners...............................24
SECTION 309. Cancelation.........................................24
SECTION 310. Computation of Interest.............................25
SECTION 311. Medium-term Securities..............................25
SECTION 312. CUSIP Numbers.......................................25
SECTION 313. Global Securities...................................25
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture.............27
SECTION 402. Application of Trust Money..........................28
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default...................................28
SECTION 502. Acceleration of Maturity; Rescission and Annulment..30
SECTION 503. Collection of Debt and Suits for Enforcement by
Trustee.........................................31
SECTION 504. Trustee May File Proofs of Claim....................31
SECTION 505. Trustee May Enforce Claims Without Possession of
Securities......................................32
SECTION 506. Application of Money Collected......................32
SECTION 507. Limitation on Suits.................................33
SECTION 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest..............................33
SECTION 509. Restoration of Rights and Remedies..................34
SECTION 510. Rights and Remedies Cumulative......................34
SECTION 511. Delay or Omission Not Waiver........................34
SECTION 512. Control by Holders..................................34
SECTION 513. Waiver of Past Defaults.............................35
SECTION 514. Waiver of Stay or Extension Laws....................35
SECTION 515. Undertaking for Costs...............................35
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities.................36
SECTION 602. Notice of Defaults..................................37
SECTION 603. Certain Rights of Trustee...........................37
SECTION 604. Trustee Not Responsible for Recitals or Issuance of
Securities.......................................38
SECTION 605. May Hold Securities.................................38
SECTION 606. Money Held in Trust.................................38
SECTION 607. Compensation and Reimbursement......................38
SECTION 608. Disqualification; Conflicting Interests.............39
SECTION 609. Corporate Trustee Required; Eligibility.............40
SECTION 610. Resignation and Removal; Appointment of Successor...40
<PAGE>
SECTION 611. Acceptance of Appointment by Successor..............41
SECTION 612. Merger, Conversion, Consolidation or Succession to
Business.........................................42
SECTION 613. Conflicting Interests...............................42
SECTION 614. Preferential Collection of Claims Against Issuers...42
SECTION 615. Appointment of Authenticating Agent.................42
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Disclosure of Names and Addresses of Holders........44
SECTION 702. Reports by Trustee..................................44
SECTION 703. Reports by Company..................................44
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, Etc., Only on Certain
Terms.............................................45
SECTION 802. Successor Substituted...............................46
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders..47
SECTION 902. Supplemental Indentures with Consent of Holders.....48
SECTION 903. Execution of Supplemental Indentures................49
SECTION 904. Effect of Supplemental Indentures...................49
SECTION 905. Conformity with Trust Indenture Act.................49
SECTION 906. Reference in Securities to Supplemental Indentures..49
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium, If Any, and
Interest.........................................49
SECTION 1002. Maintenance of Office or Agency....................50
SECTION 1003. Money for Security Payments to Be Held in Trust....50
SECTION 1004. Statement by Officers as to Default................51
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article...........................52
SECTION 1102. Election to Redeem; Notice to Trustee..............52
SECTION 1103. Selection by Trustee of Securities to Be Redeemed..52
SECTION 1104. Notice of Redemption...............................53
SECTION 1105. Deposit of Redemption Price........................53
SECTION 1106. Securities Payable on Redemption Date..............54
<PAGE>
SECTION 1107. Securities Redeemed in Part........................54
SECTION 1108. Provisions with Respect to Any Sinking Funds.......54
ARTICLE TWELVE
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1201. Applicability of Article; Company's Option to
Effect Defeasance or Covenant Defeasance..........55
SECTION 1202. Defeasance and Discharge...........................56
SECTION 1203. Covenant Defeasance................................56
SECTION 1204. Conditions to Defeasance or Covenant Defeasance....57
SECTION 1205. Deposited Money and U.S. Government Obligations
to Be Held in Trust;
Other Miscellaneous Provisions...................58
ARTICLE THIRTEEN
SUBORDINATION
SECTION 1301. Agreement To Subordinate....................................59
SECTION 1302. Liquidation, Dissolution, Bankruptcy........................60
SECTION 1303. Default on Senior Debt......................................60
SECTION 1304. Acceleration of Payment of Securities.......................61
SECTION 1305. When Distribution Must Be Paid Over.........................61
SECTION 1306. Subrogation.................................................61
SECTION 1307. Relative Rights.............................................61
SECTION 1308. Subordination May Not Be Impaired by Company................61
SECTION 1309. Rights of Trustee and Paying Agent..........................61
SECTION 1310. Distribution or Notice to Representative....................62
SECTION 1311. Article XIII Not To Prevent Events of Default or Limit
Right To Accelerate....................................62
SECTION 1312. Trust Moneys Not Subordinated...............................62
SECTION 1313. Trustee Entitled To Rely....................................62
SECTION 1314. Trustee To Effectuate Subordination.........................62
SECTION 1315. Trustee Not Fiduciary for Holders of Senior Debt............63
SECTION 1316. Reliance by Holders of Senior Debt on Subordination
Provisions.............................................63
<PAGE>
TELIGENT, INC.
Reconciliation and tie between Trust Indenture Act
of 1939 and the Subordinated Indenture
Trust Indenture
Act Section Indenture Section
ss. 310(a)(1) .........................................609
(a)(2) ...........................................609
(a)(4) ...........................................609
(a)(5) ...........................................609
(b) ...........................................605, 608, 610,
613
ss. 311(a) .........................................614
(b) ...........................................614
ss. 312(c) .........................................701
ss. 313(a) .........................................702
(c) ...........................................602, 702, 703
ss. 314(a) .........................................703
(a)(4) ...........................................1004
(c)(1) ...........................................102
(c)(2) ...........................................102
(c)(3) ...........................................102
(e) ...........................................102
ss. 315(a) .........................................601
(b) ...........................................602
(c) ...........................................601
(d) ...........................................601
(e) ...........................................610
ss. 316(a)(last
sentence) ...........................................101
("Outstanding")
(a)(1)(A) ...........................................502, 512
(a)(1)(B) ...........................................513
(b) ...........................................508
(c) ...........................................104(d)
ss. 317(a)(1) .........................................503
(a)(2) ...........................................504
(b) ...........................................1003
ss. 318(a) .........................................111
EXHIBIT (5)
[Letterhead of]
CRAVATH, SWAINE & MOORE
[New York Office]
July 19, 1999
Teligent, Inc.
Ladies & Gentlemen:
We have acted as counsel for Teligent, Inc., a Delaware
corporation (the "Company"), in connection with the proposed issuance and
sale from time to time pursuant to Rule 415 under the Securities Act of
1933 (the "Securities Act") of up to (A) $1,000,000,000 of senior or
subordinated debt securities (the "Debt Securities") of the Company,
preferred stock (the "Preferred Stock") of the Company, Depositary Shares
(the "Depositary Shares") of the Company representing a fractional interest
in a share of Preferred Stock, and Class A common stock of the Company (the
"Company Common Stock") and (B) 2,000,000 shares of common stock (the
"Selling Shareholder Common Stock" and, together with the Company Common
Stock, the "Common Stock") by a certain shareholder (the "Selling
Shareholder") of the Company named in the Registration Statement referred
to below (the Debt Securities, Preferred Stock, Depositary Shares and the
Common Stock are collectively referred to herein as the "Securities").
In that connection, we have examined originals, or copies
certified or otherwise identified to our satisfaction, of such documents,
corporate records and other instruments as we have deemed necessary for the
purposes of this opinion, including the following: (a) the Certificate of
Incorporation of the Company, as amended; (b) the By-laws of the Company,
as amended; (c) the forms of the Senior Indenture and the Subordinated
Indenture (each an "Indenture", and collectively, the "Indentures") each as
filed as an Exhibit to the Registration Statement; (d) resolutions adopted
on June 7, 1999 and on October 6, 1997 by the Board of Directors of the
Company; (e) the Registration Statement on Form S-3 (Registration No. 333-
<PAGE>
80469) filed with the Securities and Exchange Commission (the "Commission")
on June 11, 1999 under the Securities Act (together with any amendments or
supplements thereto, the "Registration Statement"); and (f) the section of
the stock ledger of the Company with respect to the sale of shares of
Common Stock to the Selling Shareholder.
Based upon and subject to the foregoing and assuming that (i) the
Registration Statement and any amendments thereto (including post-effective
amendments) will have become effective and comply with all applicable laws;
(ii) the Registration Statement will be effective and will comply with all
applicable laws at the time the Securities are offered or issued as
contemplated by the Registration Statement; (iii) a Prospectus Supplement
or term sheet will have been prepared and filed with the Securities and
Exchange Commission describing the Securities offered thereby and will
comply with all applicable laws; (iv) all Securities will be issued and
sold in compliance with applicable federal and state securities laws and in
the manner stated in the Registration Statement and the appropriate
Prospectus Supplement or term sheet; (v) a definitive purchase,
underwriting or similar agreement with respect to any Securities offered or
issued will have been duly authorized and validly executed and delivered by
the Company or the Selling Shareholder, as applicable, and the other
parties thereto; and (vi) any Securities issuable upon conversion, exchange
or exercise of any Security being offered or issued will be duly
authorized, credited and, if appropriate, reserved for issuance upon such
conversion, exchange or exercise, we are of opinion as follows:
(1) with respect to Debt Securities to be issued under any of the
Indentures, when (A) the applicable trustee is qualified to act as
such under such Indenture, (B) the applicable trustee has duly
executed and delivered the applicable Indenture, (C) the applicable
Indenture has been duly authorized and validly executed and delivered
by the Company to the applicable trustee, (D) the applicable Indenture
has been duly qualified under the Trust Indenture Act of 1939, as
amended, (E) the Board of Directors of the Company or a duly
constituted and acting committee thereof (such Board of Directors or
committee being hereinafter referred to as the "Board") has taken all
necessary corporate action to approve the issuance and terms of such
Debt Securities, the terms of the offering thereof and related matters
and (F) such Debt Securities have been duly executed, authenticated,
issued and delivered in accordance with the provisions of the
applicable Indenture and the applicable
<PAGE>
definitive purchase, underwriting or similar agreement approved
by the Board upon payment of the consideration therefor provided for
therein, such Debt Securities will be validly issued and will
constitute valid and binding obligations of the Company, enforceable
against the Company in accordance with their terms (subject to
applicable bankruptcy, insolvency, reorganization, moratorium,
fraudulent transfer and other similar laws affecting creditors' rights
generally from time to time in effect and to general principles of
equity, including, without limitation, concepts of materiality,
reasonableness, good faith and fair dealing, regardless of whether
considered in a proceeding in equity or at law);
(2) with respect to shares of Preferred Stock, when both (A) the
Board has taken all necessary corporate action to approve the issuance
and terms of the shares of Preferred Stock, the terms of the offering
thereof and related matters, including the adoption of a Certificate
of Amendment relating to such Preferred Stock (a "Certificate") and
the filing of the Certificate with the Secretary of State of the State
of Delaware, and (B) certificates representing the shares of Preferred
Stock have been duly executed, countersigned, registered and delivered
either (i) in accordance with the applicable definitive purchase,
underwriting or similar agreement approved by the Board upon payment
of the consideration therefor (not less than the par value of the
Preferred Stock) provided for therein or (ii) upon conversion or
exercise of any other Security, in accordance with the terms of such
Security or the instrument governing such Security providing for such
conversion or exercise as approved by the Board, for the consideration
approved by the Board (not less than the par value of the Preferred
Stock), then the shares of Preferred Stock will be validly issued,
fully paid and nonassessable;
(3) with respect to Depositary Shares, when (A) the Board has
taken all necessary corporate action to approve the issuance and terms
of the Depositary Shares, the terms of the offering thereof and
related matters, including the adoption of a Certificate relating to
the Preferred Stock underlying such Depositary Shares and the filing
of the Certificate with the Secretary of State of the State of
Delaware, (B) the Deposit Agreement or Agreements relating to the
Depositary Shares and the related Depositary Receipts have been duly
authorized and validly executed and delivered by the Company and the
Depositary appointed
<PAGE>
by the Company, (C) the shares of Preferred Stock underlying such
Depositary Shares have been deposited with a bank or trust company
(which meets the requirements for the Depositary set forth in the
Registration Statement or the applicable Prospectus Supplement) under
the applicable Deposit Agreement and (D) the Depositary Receipts
representing the Depositary Shares have been duly executed,
countersigned, registered and delivered in accordance with the
appropriate Deposit Agreement and the applicable definitive purchase,
underwriting or similar agreement approved by the Board upon payment
of the consideration therefor provided for therein, the Depositary
Shares will be validly issued;
(4) with respect to shares of Company Common Stock when both (A)
the Board has taken all necessary corporate action to approve the
issuance of and the terms of the offering of the shares of Company
Common Stock and related matters and (B) certificates representing the
shares of Company Common Stock have been duly executed, countersigned,
registered and delivered either (i) in accordance with the applicable
definitive purchase, underwriting or similar agreement approved by the
Board upon payment of the consideration therefor (not less than the
par value of the Company Common Stock) provided for therein or (ii)
upon conversion or exercise of any other Security, in accordance with
the terms of such Security or the instrument governing such Security
providing for such conversion or exercise as approved by the Board,
for the consideration approved by the Board (not less than the par
value of the Common Stock), then the shares of Company Common Stock
will be validly issued, fully paid and nonassessable; and
(5) with respect to shares of Selling Shareholder Common Stock,
when such shares were heretofore issued to the Selling Shareholder
they were validly issued, and they are fully paid and nonassessable.
We know that we may be referred to, as counsel who has passed
upon the validity of the Debt Securities or the issuance of the Preferred
Stock, Depositary Shares or Common Stock, in a Prospectus Supplement or
term sheet to the Registration Statement filed with the Commission pursuant
to the Securities Act, and we hereby consent to such use of our
<PAGE>
name in the Registration Statement and to the use of this opinion for
filing with the Registration Statement as Exhibit (5) thereto.
We hereby consent to the incorporation by reference of this opinion
into a subsequent registration statement filed by the Company pursuant to
Rule 462(b) under the Securities Act of 1933 relating to the offering covered
by this registration statement.
Very truly yours,
/s/ Cravath, Swaine & Moore
---------------------------
CRAVATH, SWAINE & MOORE
Teligent, Inc.
8065 Leesburg Pike
Suite 400
Vienna, VA 22182
Exhibit 23.2
Consent of Ernst & Young LLP, Independent Auditors
We consent to the reference to our firm under the caption "Experts" in
Amendment No. 2 to the Registration Statement (Form S-3 No. 333-80469) and
related Prospectus of Teligent, Inc. and to the incorporation by reference
therein of our report dated February 12, 1999, with respect to the
consolidated financial statements of Teligent, Inc. included in its Annual
Report (Form 10-K) for the year ended December 31, 1998, filed with the
Securities and Exchange Commission.
/s/ Ernst & Young LLP
Vienna, Virginia
July 16, 1999
Exhibit 99.25.1
==============================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY AND QUALIFICATION
UNDER THE TRUST INDENTURE ACT OF 1939, AS AMENDED,
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
Check if an application to determine eligibility of a
trustee pursuant to Section 305(b) (2) _____
FIRST UNION NATIONAL BANK
(Exact name of Trustee as specified in its charter)
230 SOUTH TRYON STREET, 9TH FL. 22-1147033
CHARLOTTE, NC 28288-1179 (I.R.S. Employer
(Address of principal executive office) (Zip Code) Identification No.)
Patricia A. Welling (804) 343-6067
800 East Main Street, Richmond, Virginia 23219
Teligent, Inc.
(Exact name of obligor as specified in its charter)
Delaware 54-18665620
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
8065 Leesburg Pike
Suite 400
Vienna, VA 22182
(Address of principal executive offices) (Zip Code)
Senior Debt Securities due
(Title of the indenture securities)
-------------------------
==============================================================================
<PAGE>
1. General information.
(a) The following are the names and addresses of each examining or
supervising authority to which the Trustee is subject:
The Comptroller of the Currency, Washington, D.C.
Federal Reserve Bank of Richmond, Richmond, Virginia.
Federal Deposit Insurance Corporation, Washington, D.C.
Securities and Exchange Commission, Division of Market Regulation,
Washington, D.C.
(b) The Trustee is authorized to exercise corporate trust powers.
2. Affiliations with obligor.
The obligor is not an affiliate of the Trustee.
3. Voting Securities of the Trustee.
Response not required.
(See answer to Item 13)
4. Trusteeships under other indentures.
o Teligent, Inc. 11 1/2% Senior Notes dated 11/26/1997 due 12/1/2007
o Telegent, Inc. 11 1/2% Senior Discount Notes dated 2/20/98 due
3/1/2008
5. Interlocking directorates and similar relationships with the obligor or
underwriters.
Response not required.
(See answer to Item 13)
6. Voting securities of the Trustee owned by the obligor or its officials.
Response not required.
(See answer to Item 13)
7. Voting securities of the Trustee owned by underwriters or their
officials.
Response not required.
(See answer to Item 13)
8. Securities of the obligor owned or held by the Trustee.
Response not required.
(See answer to Item 13)
<PAGE>
9. Securities of underwriters owned or held by the Trustee.
Response not required.
(See answer to Item 13)
10. Ownership or holdings by the Trustee of voting securities of certain
affiliates or security holders of the obligor.
Response not required.
(See answer to Item 13)
11. Ownership or holdings by the Trustee of any securities of a person owning
50 percent or more of the voting securities of the obligor.
Response not required.
(See answer to Item 13)
12. Indebtedness of the obligor to the Trustee.
Response not required.
(See answer to Item 13)
13. Defaults by the obligor.
A. None
B. None
14. Affiliations with the underwriters.
Response not required.
(See answer to Item 13)
15. Foreign trustee.
Trustee is a national banking association organized under the
laws of the United States.
16. List of Exhibits.
(1) *Articles of Incorporation.
(2) Certificate of Authority of the Trustee to conduct business. No
Certificate of Authority of the Trustee to commence business is
furnished since this authority is continued in the Articles of
Association of the Trustee.
<PAGE>
(3) *Certificate of Authority of the Trustee to exercise corporate trust
powers.
(4) *By-Laws.
(5) Inapplicable.
(6) Consent by the Trustee required by Section 321(b) of the Trust
Indenture Act of 1939 as amended. Included at Page 5 of this Form
T-1 Statement.
(7) Report of condition of Trustee
(8) Inapplicable.
(9) Inapplicable.
* Exhibits thus designated have heretofore been filed with the
Securities and Exchange Commission, have not been amended since
filing are incorporated herein by reference (See Exhibit T-1
Registration Number 333- 76965).
<PAGE>
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the Trustee, FIRST UNION NATIONAL BANK, a national banking
association organized and existing under the laws of the United States of
America, has duly caused this Statement of Eligibility and Qualification to be
signed on its behalf by the undersigned, thereunto duly authorized, all in the
City of Richmond, and in the Commonwealth of Virginia on the 19th day of July,
1999.
FIRST UNION NATIONAL BANK
(Trustee)
BY: /s/ Patricia A. Welling
-----------------------------------
Patricia A. Welling, Vice President
EXHIBIT T-1 (6)
CONSENT OF TRUSTEE
Under Section 321(b) of the Trust Indenture Act of 1939 and in
connection with the issuance by Teligent, Inc. Senior Debt Securities due
____, First Union National Bank, as the Trustee herein named, hereby consents
that reports of examinations of said Trustee by Federal, State, Territorial or
District authorities may be furnished by such authorities to the Securities
and Exchange Commission upon requests therefor.
FIRST UNION NATIONAL BANK
BY: /s/ John M. Turner
-----------------------------------
John M. Turner, Vice President
Dated: July 19, 1999
<PAGE>
R E P O R T OF C O N D I T I O N
Consolidating domestic subsidiaries of the
First Union National Bank Charlotte
Name of Bank City
in the state of North Carolina, at the close of business on March 31, 1999,
published in response to call made by Comptroller of the Currency, under title
12, United States Code, Section 161. Charter Number 02737 Comptroller of the
Currency Southeastern District
Statement of Resources and Liabilities
ASSETS
Thousands of dollars
1 Cash and balances due from depository institutions:
a. Noninterest-bearing balances and currency and
coin................................................. 11,400,000
b. Interest-bearing balances.............................. 454,000
2 Securities:
a. Held-to-maturity securities............................ 1,873,000
b. Available-for-sale securities.......................... 38,611,000
3 Federal funds sold and securities purchased under agmts to resell: 3,359,000
4 Loans and lease financing receivables:
a. Loans and leases, net of unearned
income................................. 131,165,000
b. LESS: Allowance for loan and lease
losses................................. 1,812,000
c. LESS: Allocated transfer risk
reserve................................ 0
d. Loans and leases, net of unearned income,
allowance, and reserve................................. 129,353,000
5 Assets held in trading accounts............................ 4,725,000
6 Premises and fixed assets (including capitalized
leases).............................................. 3,218,000
7 Other real estate owned.................................... 126,000
8 Investments in unconsolidated subsidiaries and associated
companies............................................ 321,000
9 Customers' liability to this bank on acceptances
outstanding.......................................... 769,000
10 Intangible assets......................................... 5,285,000
11 Other assets.............................................. 9,176,000
12 Total assets.............................................. 208,670,000
<PAGE>
LIABILITIES
13 Deposits:
a. In domestic offices................................... 128,512,000
(1) Noninterest-bearing................. 21,581,000
(2) Interest-bearing.................... 106,931,000
b. In foreign offices, Edge and Agmt subsidiaries,
and IBFs........................................... 9,452,000
(1) Noninterest-bearing............................... 553,000
(2) Interest-bearing.................................. 8,899,000
14 Federal funds purchased and securities sold under agmts
to repurchase: 19,561,000
15 a. Demand notes issued to the U.S Treasury................ 500,000
b. Trading liabilities.................................... 3,585,000
16 Other borrowed money:
a. With a remaining maturity of one year or less......... 12,891,000
b. With a remaining maturity of more than one year
through three years................................ 3,583,000
c. With a remaining maturity of more than three years.... 774,000
17 Not applicable
18 Bank's liability on acceptances executed and
outstanding.......................................... 769,000
19 Subordinated notes and debentures......................... 4,045,000
20 Other liabilities......................................... 7,306,000
21 Total liabilities......................................... 190,978,000
22 Not applicable
EQUITY CAPITAL
23 Perpetual preferred stock and related surplus............. 161,000
24 Common stock.............................................. 455,000
25 Surplus................................................... 13,291,000
26 a. Undivided profits and capital reserves................ 3,768,000
b. Net unrealized holding gains (losses) on available- 22,000
for-sale securities.................................
27 Cumulative foreign currency translation
adjustments.......................................... (5,000)
28 Total equity capital...................................... 17,692,000
29 Total liabilities, limited-life preferred stock, and
equity capital (sum of items 21 and 28)............ 208,670,000
<PAGE>
We, the undersigned directors, attest to the correctness of
this statement of resources and liabilities. We declare that it
has been examined by us, and to the best of our knowledge
and belief has been prepared in conformancewith the
instructions and is true and correct.
Directors I, Gary R. Sessions
-------------------
John R. Georgious Name
Marion A. Cowell, Jr Vice President
Edward E. Crutchfield --------------
Title
of the above-named bank do
hereby declare that this
Report of Condition is true
and correct to the best of
my knowledge and belief.
Exhibit 99-25.2
==============================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY AND QUALIFICATION
UNDER THE TRUST INDENTURE ACT OF 1939, AS AMENDED,
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
Check if an application to determine eligibility of a trustee pursuant
to Section 305(b) (2) _____
FIRST UNION NATIONAL BANK
(Exact name of Trustee as specified in its charter)
230 SOUTH TRYON STREET, 9TH FL. 22-1147033
CHARLOTTE, NC 28288-1179 (I.R.S. Employer
(Address of principal executive office) (Zip Code) Identification No.)
Patricia A. Welling (804) 343-6067
800 East Main Street, Richmond, Virginia 23219
Teligent, Inc.
(Exact name of obligor as specified in its charter)
Delaware 54-18665620
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
8065 Leesburg Pike
Suite 400
Vienna, VA 22182
(Address of principal executive offices) (Zip Code)
Subordinated Debt Securities due
(Title of the indenture securities)
--------------------
==============================================================================
<PAGE>
1. General information.
(a) The following are the names and addresses of each examining or
supervising authority to which the Trustee is subject:
The Comptroller of the Currency, Washington, D.C. Federal Reserve
Bank of Richmond, Richmond, Virginia. Federal Deposit Insurance
Corporation, Washington, D.C. Securities and Exchange Commission,
Division of Market Regulation, Washington, D.C.
(b) The Trustee is authorized to exercise corporate trust powers.
2. Affiliations with obligor.
The obligor is not an affiliate of the Trustee.
3. Voting Securities of the Trustee.
Response not required.
(See answer to Item 13)
4. Trusteeships under other indentures.
Teligent, Inc. 11 1/2% Senior Notes dated 11/26/1997 due 12/1/2007
Telegent, Inc. 11 1/2% Senior Discount Notes dated 2/20/98 due
3/1/2008
5. Interlocking directorates and similar relationships with the obligor or
underwriters.
Response not required.
(See answer to Item 13)
6. Voting securities of the Trustee owned by the obligor or its officials.
Response not required.
(See answer to Item 13)
7. Voting securities of the Trustee owned by underwriters or their
officials.
Response not required.
(See answer to Item 13)
8. Securities of the obligor owned or held by the Trustee.
Response not required.
(See answer to Item 13)
<PAGE>
9. Securities of underwriters owned or held by the Trustee.
Response not required.
(See answer to Item 13)
10. Ownership or holdings by the Trustee of voting securities of certain
affiliates or security holders of the obligor.
Response not required.
(See answer to Item 13)
11. Ownership or holdings by the Trustee of any securities of a person owning
50 percent or more of the voting securities of the obligor.
Response not required.
(See answer to Item 13)
12. Indebtedness of the obligor to the Trustee.
Response not required.
(See answer to Item 13)
13. Defaults by the obligor.
A. None
B. None
14. Affiliations with the underwriters.
Response not required.
(See answer to Item 13)
15. Foreign trustee.
Trustee is a national banking association organized under the laws
of the United States.
16. List of Exhibits.
(1) *Articles of Incorporation.
(2) Certificate of Authority of the Trustee to conduct business. No
Certificate of Authority of the Trustee to commence business is
furnished since this authority is continued in the Articles of
Association of the Trustee.
<PAGE>
(3) *Certificate of Authority of the Trustee to exercise corporate
trust powers.
(4) *By-Laws.
(5) Inapplicable.
(6) Consent by the Trustee required by Section 321(b) of the Trust
Indenture Act of 1939 as amended. Included at Page 5 of this
Form T-1 Statement.
(7) Report of condition of Trustee
(8) Inapplicable.
(9) Inapplicable.
* Exhibits thus designated have heretofore been filed with the
Securities and Exchange Commission, have not been amended since
filing are incorporated herein by reference (See Exhibit T-1
Registration Number 333- 76965).
<PAGE>
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the Trustee, FIRST UNION NATIONAL BANK, a national banking
association organized and existing under the laws of the United States of
America, has duly caused this Statement of Eligibility and Qualification to be
signed on its behalf by the undersigned, thereunto duly authorized, all in the
City of Richmond, and in the Commonwealth of Virginia on the 19th day of July,
1999.
FIRST UNION NATIONAL BANK
(Trustee)
BY:/s/ Patricia A. Welling
-----------------------------------
Patricia A. Welling, Vice President
EXHIBIT T-1 (6)
CONSENT OF TRUSTEE
Under Section 321(b) of the Trust Indenture Act of 1939 and in
connection with the issuance by Teligent, Inc. Subordinated Debt Securities
due ____, First Union National Bank, as the Trustee herein named, hereby
consents that reports of examinations of said Trustee by Federal, State,
Territorial or District authorities may be furnished by such authorities to
the Securities and Exchange Commission upon requests therefor.
FIRST UNION NATIONAL BANK
BY: /s/ John M. Turner
----------------------------------
John M. Turner, Vice President
Dated: July 19, 1999
Teligent
<PAGE>
R E P O R T OF C O N D I T I O N
Consolidating domestic subsidiaries of the
First Union National Bank Charlotte
Name of Bank City
in the state of North Carolina, at the close of business on March 31, 1999,
published in response to call made by Comptroller of the Currency, under title
12, United States Code, Section 161. Charter Number 02737 Comptroller of the
Currency Southeastern District
Statement of Resources and Liabilities
ASSETS
Thousands of dollars
1 Cash and balances due from depository institutions:
a. Noninterest-bearing balances and currency and
coin................................................. 11,400,000
b. Interest-bearing balances.............................. 454,000
2 Securities:
a. Held-to-maturity securities............................ 1,873,000
b. Available-for-sale securities.......................... 38,611,000
3 Federal funds sold and securities purchased under agmts to resell: 3,359,000
4 Loans and lease financing receivables:
a. Loans and leases, net of unearned
income................................. 131,165,000
b. LESS: Allowance for loan and lease
losses................................. 1,812,000
c. LESS: Allocated transfer risk
reserve................................ 0
d. Loans and leases, net of unearned income,
allowance, and reserve................................. 129,353,000
5 Assets held in trading accounts............................ 4,725,000
6 Premises and fixed assets (including capitalized
leases).............................................. 3,218,000
7 Other real estate owned.................................... 126,000
8 Investments in unconsolidated subsidiaries and associated
companies............................................ 321,000
9 Customers' liability to this bank on acceptances
outstanding.......................................... 769,000
10 Intangible assets......................................... 5,285,000
11 Other assets.............................................. 9,176,000
12 Total assets.............................................. 208,670,000
<PAGE>
LIABILITIES
13 Deposits:
a. In domestic offices................................... 128,512,000
(1) Noninterest-bearing................. 21,581,000
(2) Interest-bearing.................... 106,931,000
b. In foreign offices, Edge and Agmt subsidiaries,
and IBFs........................................... 9,452,000
(1) Noninterest-bearing............................... 553,000
(2) Interest-bearing.................................. 8,899,000
14 Federal funds purchased and securities sold under agmts
to repurchase: 19,561,000
15 a. Demand notes issued to the U.S Treasury................ 500,000
b. Trading liabilities.................................... 3,585,000
16 Other borrowed money:
a. With a remaining maturity of one year or less......... 12,891,000
b. With a remaining maturity of more than one year
through three years................................ 3,583,000
c. With a remaining maturity of more than three years.... 774,000
17 Not applicable
18 Bank's liability on acceptances executed and
outstanding.......................................... 769,000
19 Subordinated notes and debentures......................... 4,045,000
20 Other liabilities......................................... 7,306,000
21 Total liabilities......................................... 190,978,000
22 Not applicable
EQUITY CAPITAL
23 Perpetual preferred stock and related surplus............. 161,000
24 Common stock.............................................. 455,000
25 Surplus................................................... 13,291,000
26 a. Undivided profits and capital reserves................ 3,768,000
b. Net unrealized holding gains (losses) on available- 22,000
for-sale securities.................................
27 Cumulative foreign currency translation
adjustments.......................................... (5,000)
28 Total equity capital...................................... 17,692,000
29 Total liabilities, limited-life preferred stock, and
equity capital (sum of items 21 and 28)............ 208,670,000
<PAGE>
We, the undersigned directors, attest to the correctness of
this statement of resources and liabilities. We declare that it
has been examined by us, and to the best of our knowledge
and belief has been prepared in conformancewith the
instructions and is true and correct.
Directors I, Gary R. Sessions
-------------------
John R. Georgious Name
Marion A. Cowell, Jr Vice President
Edward E. Crutchfield --------------
Title
of the above-named bank do
hereby declare that this
Report of Condition is true
and correct to the best of
my knowledge and belief.
