As filed with the United States Securities and Exchange Commission on April
21, 2000.
Registration No. 333-________
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
------------------------------
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
------------------------------
CENTURYTEL, INC.
(Exact name of registrant as specified in its charter)
Louisiana 72-0651161
(State or other (I.R.S. Employer
jurisdiction of incorporation Identification Number)
or organization)
100 Century Park Drive
Monroe, Louisiana 71203
(318) 388-9000
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
Harvey P. Perry COPY TO:
Executive Vice President, Chief Kenneth J. Najder
Administrative Officer, General Jones, Walker, Waechter,
Counsel and Secretary Poitevent, Carre`re & Dene`gre, L.L.P.
CenturyTel, Inc. 201 St. Charles Avenue, 51st Floor
100 Century Park Drive New Orleans, Louisiana 70170-5100
Monroe, Louisiana 71203 (504) 582-8000
(318) 388-9000
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
------------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
From time to time after the effective date of this registration statement
------------------------------
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the
following box. []
If any of the securities being registered on this form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection
with dividend or interest reinvestment plans, please 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. []
_________________________________
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Title of
each Proposed Proposed
class of maximum maximum
securities Amount offering aggregate
to be to be price per offering Amount of
registered registered unit(1) price(1) registration fee(2)(3)
<S> <C> <C> <C> <C>
Senior Debt Securities(4) $2,000,000,000(2)(9) 100% $2,000,000,000 $ 281,675
Preferred Stock(5)
Common Stock(6)(7)
Warrants(8)
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee;
certain information regarding the proposed maximum offering prices has
been omitted pursuant to Instruction II.D of Form S-3 and will be
determined, from time to time, by the registrant in connection with
its issuance of the securities registered hereunder.
(2) The registration fee has been calculated in accordance with Rule
457(o) under the Securities Act, and, with respect to debt securities,
reflects the principal amount of any such securities issued at, or at
a premium to, their principal amounts, and the issue price rather than
the principal amount of any debt securities issued at an original
issue discount.
(3) Pursuant to Rule 429 under the Securities Act, the registration fee
otherwise payable with respect to the securities registered pursuant
to this registration statement ($528,000) has been offset by $246,325
of fees previously paid to the Securities and Exchange Commission
relating to securities that (i) were previously registered pursuant to
the registration statement on Form S-3 listed below and (ii) remain
unissued at the close of business on the date of this registration
statement.
<TABLE>
<CAPTION>
Aggregate Amount Fee Paid for
Registration Statement No. Registered but Unissued Unissued Securities
- -------------------------- ----------------------- -------------------
<S> <C> <C>
No. 333-42013 $835,000,000 $ 246,325
</TABLE>
Pursuant to Rule 429, this registration statement constitutes Post-
Effective Amendment No. 3 to the registration statement on Form S-3
No. 333-42013 and hereby deregisters all remaining unissued securities
registered pursuant to that registration statement.
(4) We are registering an indeterminate amount of debt securities that we
may issue from time to time at indeterminate prices. The debt
securities may be issued separately or in connection with the exercise
of purchase, conversion or exchange rights under other securities
registered hereunder, and may be exchangeable for or convertible into
other securities registered hereunder.
(5) We are registering an indeterminate number of shares of preferred
stock that we may issue from time to time at indeterminate prices.
These shares may be issued separately or in connection with the
exercise of purchase, conversion or exchange rights under other
securities registered hereunder, and may be exchangeable for or
convertible into other securities registered hereunder.
(6) We are registering an indeterminate number of shares of common stock
that we may issue from time to time at indeterminate prices, including
shares issuable in connection with the exercise of purchase,
conversion or exchange rights under other securities registered
hereunder.
(7) Includes preference share purchase rights, which prior to the
occurrence of certain events will not be exercisable or evidenced
separate from our common stock.
(8) We are registering an indeterminate number of warrants that we may
issue from time to time at indeterminate prices entitling the holder
to purchase other securities registered hereunder.
(9) No separate cash consideration will be received for any securities
issuable upon the conversion or exchange of any other securities
registered hereunder.
________________
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 OR UNTIL THIS REGISTRATION
STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING
PURSUANT TO SECTION 8(A), MAY DETERMINE.
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 DOES NOT SOLICIT AN OFFER TO BUY THESE
SECURITIES IN ANY JURISDICTION WHERE THE OFFER OR SALE IS NOT PERMITTED.
SUBJECT TO COMPLETION, DATED APRIL 21, 2000
$2,000,000,000
CENTURYTEL, INC.
SENIOR DEBT SECURITIES
PREFERRED STOCK
COMMON STOCK
WARRANTS
________________________________
We may use this prospectus to offer the following securities for sale,
either separately or together:
*Senior debt securities
*Preferred stock
*Common stock
*Warrants
We will describe the specific terms of any securities that we offer in
one or more supplements to this prospectus. A supplement may also update
or change information contained in this prospectus.
We may sell securities directly to one or more purchasers or to or
through underwriters, dealers or agents. If any underwriters, dealers or
agents are involved in the sale of securities, the accompanying prospectus
supplement will set forth their names, the principal amounts, if any, to be
purchased by underwriters, any applicable fees, commissions or discounts,
and the net proceeds to be received by us.
Our common stock trades on the New York Stock Exchange under the
symbol "CTL".
You should read this prospectus and any prospectus supplement
carefully before you invest. This prospectus may not be used to sell
securities unless accompanied by a prospectus supplement.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE
SECURITIES COMMISSION HAS APPROVED OR DISAPPROVED THESE SECURITIES OR
DETERMINED IF THIS PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION
TO THE CONTRARY IS A CRIMINAL OFFENSE.
________________
The date of this prospectus is __________, 2000.
TABLE OF CONTENTS
PAGE
ABOUT THIS PROSPECTUS................................................1
WHERE YOU CAN FIND MORE INFORMATION..................................1
FORWARD-LOOKING STATEMENTS...........................................2
THE COMPANY..........................................................3
USE OF PROCEEDS......................................................6
EARNINGS RATIOS......................................................6
DESCRIPTION OF SENIOR DEBT SECURITIES................................7
DESCRIPTION OF PREFERRED STOCK......................................14
DESCRIPTION OF COMMON STOCK.........................................16
DESCRIPTION OF WARRANTS.............................................17
PLAN OF DISTRIBUTION................................................18
LEGAL MATTERS.......................................................19
EXPERTS.............................................................19
-------------------------
YOU SHOULD RELY ONLY ON THE INFORMATION CONTAINED OR INCORPORATED BY
REFERENCE IN THIS PROSPECTUS AND ANY PROSPECTUS SUPPLEMENT. WE HAVE NOT
AUTHORIZED ANYONE TO PROVIDE YOU WITH DIFFERENT INFORMATION. WE ARE NOT
MAKING AN OFFER TO SELL THESE SECURITIES IN ANY JURISDICTION WHERE THE
OFFER IS NOT PERMITTED. YOU SHOULD NOT ASSUME THAT THE INFORMATION
CONTAINED IN THIS PROSPECTUS OR ANY PROSPECTUS SUPPLEMENT IS ACCURATE AS OF
ANY DATE OTHER THAN THE DATE ON THE FRONT COVER OF THOSE DOCUMENTS.
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement on Form S-3 that
we filed with the Securities and Exchange Commission utilizing a shelf
registration process. Under the shelf process, we may sell any combination
of securities described in this prospectus in one or more offerings, up to
a total dollar amount of $2,000,000,000. 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 immediately below
under the heading "Where You Can Find More Information."
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and
other information with the Securities and Exchange Commission. You can read
and copy that information at the public reference room of the SEC at 450
Fifth Street, NW, Washington, D.C. 20549. You may call the SEC at 1-800-
SEC-0330 for more information about the public reference room. The SEC
also maintains an Internet site that contains reports, proxy and
information statements and other information regarding registrants, like
us, that file reports with the SEC electronically. The SEC's Internet
address is http://www.sec.gov.
We have filed a registration statement on Form S-3 and related
exhibits with the SEC under the Securities Act of 1933. The registration
statement contains additional information about us and our securities. You
may read the registration statement and exhibits without charge at the
SEC's public reference room, and you may obtain copies from the SEC at
prescribed rates.
The SEC allows us to "incorporate by reference" the information we
file with it, which means that we can disclose important information to you
by referring to documents on file with the SEC. Some information that we
currently have on file is incorporated by reference and is an important
part of this prospectus. You will be deemed to have notice of all
information incorporated by reference in this prospectus as if that
information was included in this prospectus. You should therefore read the
information incorporated by reference in this prospectus with the same care
you use when reading this prospectus and any prospectus supplement.
Certain information that we file later with the SEC will automatically
update and supersede information incorporated by reference in this
prospectus and information contained in this prospectus or any prospectus
supplement.
We incorporate by reference the following documents that we have filed
with the SEC pursuant to the Securities Exchange Act of 1934:
* Annual Report on Form 10-K for the year ended December 31,
1999 (filed March 15, 2000)
* Current Report on Form 8-K filed March 7, 2000
* The description of our common stock contained in our
registration statement, as amended and restated on Form 8-A/A
(File No. 1-7784; filed November 19, 1999), and the description
of the related preference share purchase rights contained in our
registration statement, as amended and restated on Form 8-A/A
(File No. 1-7784; filed on November 19, 1999)
* All documents filed by us with the SEC pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Securities Exchange Act after
the date of this prospectus and prior to the termination of this
offering.
At your request, we will provide you with a free copy of any of these
filings (except for exhibits, unless the exhibits are specifically
incorporated by reference into the filing). You may request copies by
writing us at 100 Century Park Drive, Monroe, Louisiana 71203, Attention:
Harvey P. Perry, or by telephoning us at (318) 388-9000.
FORWARD-LOOKING STATEMENTS
Certain statements made in this prospectus and the documents
incorporated herein by reference that are not historical facts are intended
to be forward-looking statements within the meaning of the Private
Securities Litigation Reform Act of 1995. Our actual results could differ
materially from such statements due to several important factors, including
the following:
* our ability to timely consummate our pending acquisitions and
effectively manage our growth, including integrating newly
acquired properties into our operations, hiring adequate numbers
of qualified staff and successfully upgrading our billing and
other information systems
* the risks inherent in rapid technological change
* the effects of ongoing deregulation in the telecommunications
industry
* the effects of greater than anticipated competition in our
markets
* possible changes in the demand for our products and services
* our ability to successfully introduce new product or service
offerings on a timely and cost-effective basis
* the effects of more general factors such as changes in general
market or economic conditions or in legislation, regulation or
public policy.
These factors, and others, are described in greater detail in Item 1 of our
Annual Report on Form 10-K for the year ended December 31, 1999. You are
cautioned not to place undue reliance on our forward-looking statements,
which speak only as of the date hereof. Except for our obligations to
disclose material information under the federal securities laws, we
undertake no obligation to update any of our forward-looking statements for
any reason.
--------------------------
WHEN USED IN THIS PROSPECTUS, (1) THE TERM "MSA" MEANS A METROPOLITAN
STATISTICAL AREA FOR WHICH THE FEDERAL COMMUNICATIONS COMMISSION (THE
"FCC") HAS GRANTED A CELLULAR OPERATING LICENSE, (2) THE TERM "RSA" MEANS A
RURAL SERVICE AREA FOR WHICH THE FCC HAS GRANTED A CELLULAR OPERATING
LICENSE, (3) THE TERM "PCS" MEANS PERSONAL COMMUNICATIONS SERVICES, A
DIGITAL MOBILE COMMUNICATIONS SERVICE, (4) THE TERM "LEC" MEANS A LOCAL
EXCHANGE CARRIER THAT PROVIDES LOCAL TELEPHONE SERVICE, AND (5) THE TERM
"POPS," WHENEVER USED WITH RESPECT TO THE OPERATIONS OF CENTURYTEL, MEANS
THE POPULATION OF LICENSED MARKETS (BASED ON INDEPENDENT THIRD-PARTY
POPULATION ESTIMATES) MULTIPLIED BY THE PROPORTIONATE EQUITY INTERESTS OF
CENTURYTEL IN THE LICENSED OPERATORS OF THOSE MARKETS.
THE COMPANY
We are a regional diversified communications company. We are
primarily engaged in providing local telephone and wireless communications
services in 20 states. We also provide long distance, Internet, security
monitoring, and other communications and business information services.
CenturyTel is incorporated in Louisiana. Our principal executive
offices are located at 100 Century Park Drive, Monroe, Louisiana 71203, and
our telephone number is (318) 388-9000.
OPERATIONS
TELEPHONE OPERATIONS. According to published sources, we are
currently the seventh largest local exchange telephone company in the
United States, based on the number of telephone access lines served. At
March 31, 2000, our telephone subsidiaries served approximately 1.28
million access lines in 20 states, primarily in rural, suburban and small
urban communities. We currently operate over 560 central office and remote
switching centers in our telephone operating areas. All of our access lines
are served by digital switching technology, which in conjunction with other
technologies allows us to offer additional premium services to our
customers, including call forwarding, conference calling, caller
identification, selective call ringing and call waiting.
The table below sets forth information with respect to our access
lines as of December 31, 1999 and 1998.
<TABLE>
<CAPTION>
December 31, 1999 December 31, 1998
----------------------------------- ------------------------------------
Number of Percent of Number of Percent of
State Access Lines Access Lines Access Lines Access Lines
--------------- ----------------- ---------------- ----------------
<S> <C> <C> <C> <C>
Wisconsin 358,768 28% 340,895 25%
Washington 183,759 14 175,508 13
Alaska 0 0 131,858 10
Michigan 112,468 9 108,769 8
Louisiana 100,967 8 97,676 7
Colorado 91,446 7 86,249 7
Ohio 83,287 7 80,400 6
Oregon 78,210 6 75,392 6
Montana 63,867 5 60,657 5
Texas 48,144 4 44,822 3
Arkansas 45,675 4 43,778 3
Minnesota 30,583 2 29,708 2
Tennessee 26,917 2 25,609 2
Mississippi 21,844 2 19,648 2
Idaho 6,040 1 5,881 1
New Mexico 6,354 1 5,770 0
Indiana 5,266 0 5,136 0
Wyoming 4,841 0 4,663 0
Iowa 1,997 0 1,938 0
Arizona 1,936 0 1,780 0
Nevada 498 0 430 0
---------------- ----------------- ---------------- ----------------
1,272,867 100% 1,346,567 100%
================ ================= ================ ================
</TABLE>
We expect future growth in our telephone operations to be derived from
acquiring additional telephone properties, providing service to new
customers, increasing network usage and providing additional services,
including those described below under "Recent Developments."
At March 31, 2000, we provided Internet access services to
approximately 66,400 customers in over 350 markets in 13 states. These
markets cover approximately 70% of the access lines served by our LECs.
Our telephone subsidiaries are installing fiber optic cable in certain
of our high traffic markets and have provided alternative routing of
telephone service over fiber optic cable networks in several strategic
operating areas. At March 31, 2000, our telephone subsidiaries had
installed approximately 7,300 miles of fiber optic cable in use.
WIRELESS OPERATIONS. According to published sources, we are currently
the ninth largest cellular telephone company in the United States, based on
cellular pops. At March 31, 2000, our majority-owned and operated cellular
systems had access to approximately 7.5 million cellular pops and served
approximately 730,000 customers in 19 MSAs in Michigan, Louisiana,
Arkansas, Mississippi, Wisconsin and Texas and 22 RSAs, most of which are
in Michigan, Louisiana, Arkansas, Mississippi and Wisconsin. At March 31,
2000, we also owned minority equity interests in 10 MSAs and 17 RSAs, which
allowed us access to approximately 1.9 million cellular pops. Of our 9.4
million aggregate cellular pops, approximately 65% are attributable to our
MSA interests, with the balance attributable to our RSA interests. We also
hold licenses to provide PCS services in markets that represent
approximately 9.9 million pops, and in late 1998 commenced marketing PCS
services in a limited number of our Michigan markets as a fixed wireless
alternative to LEC services. At March 31, 2000, we served approximately
600 PCS customers.
Our business development strategy for wireless operations is to
secure operating control of geographically clustered service areas.
Clustered systems aid our marketing efforts and provide various operating
and service advantages. Approximately 44% of our cellular customers are in
a single, contiguous cluster of eight MSAs and nine RSAs in Michigan.
Another 26% are in a cluster of five MSAs and seven RSAs in northern and
central Louisiana, southern Arkansas and eastern Texas.
We began offering digital cellular service in certain markets in late
1996 using the TDMA digital standard. Digital cellular service is
currently available in all of our MSA markets and approximately a third of
our RSA markets. Approximately 5% of our cellular customers currently
subscribe to digital services.
OTHER OPERATIONS. We also provide long distance, security monitoring,
cable television and interactive services in certain local and regional
markets, as well as certain printing and related business information
services. At March 31, 2000, our long distance business served
approximately 319,000 customers in certain of our markets. For additional
information on our new service offerings, see "- Recent Developments -- New
Services."
RECENT DEVELOPMENTS
PENDING ACQUISITIONS. In mid-1999, we entered into definitive
agreements to purchase the following assets from affiliates of GTE
Corporation:
* In June 1999, we agreed to purchase telephone access lines
(which numbered approximately 225,000 at December 31, 1999) and
related local exchange assets in Arkansas for approximately
$845.8 million in cash.
* In July 1999, we acquired a 61.5% (56.9% fully diluted)
interest in a newly-organized joint venture company which has
agreed to purchase telephone access lines (which numbered
approximately 121,000 at December 31, 1999) and related local
exchange assets in Missouri for approximately $290 million in
cash. At closing, we have agreed to make a preferred equity
investment of approximately $55 million in the new entity and
anticipate loaning the new entity approximately $220 million.
* In August 1999, we acquired an 89% interest in a newly-
organized joint venture company which has agreed to purchase
telephone access lines (which numbered approximately 61,700 as of
December 31, 1999) and related local exchange assets in Wisconsin
for approximately $170 million in cash. At closing, we have
agreed to make an equity investment in the new entity of
approximately $37.8 million and anticipate loaning the new entity
approximately $130 million.
* In October 1999, we agreed to purchase additional telephone
access lines (which numbered approximately 68,200 as of December
31, 1999) and related local exchange assets in Wisconsin for
approximately $195 million in cash.
The purchase price under each of these GTE agreements is subject to
adjustments which are not expected to be material in the aggregate. These
transactions are anticipated to close by mid-year 2000, subject to
regulatory approvals, the absence of litigation and certain other closing
conditions. For information on financing these acquisitions, see "Use of
Proceeds."
NEW SERVICES. During 2000, we intend to initiate or further develop
the following services:
* In December 1999, we began offering in one of our select
markets digital subscriber line (DSL) Internet access services, a
high-speed premium-priced data service. During 2000, we plan to
make this service available in markets covering between 30% to
40% of the access lines served by our LECs.
* During the second quarter of 2000, we plan to begin offering
competitive local exchange telephone services (coupled with long
distance, wireless, Internet access and other services) to small
to medium-sized businesses in Shreveport, Louisiana. We currently
plan to offer similar services in nine other initial new markets
by year end 2000, and have budgeted $20 million of capital
expenditures for 2000 to construct competitive local exchange
networks to be operated by our subsidiaries. We expect to incur
a consolidated operating loss in 2000 of approximately $4.0-$6.0
million in connection with providing these services.
* In connection with our long-range plans to sell capacity to
other carriers in or near certain of our select markets, we
expect to complete construction later this year of a 650-mile
fiber optic ring connecting several communities in southern and
central Michigan, plus an extension spur connecting Chicago and
Detroit. We expect to begin providing initial network services
by third quarter 2000 with respect to the 650-mile ring and by
fourth quarter 2000 with respect to the extension spur.
RECENT EVENTS AFFECTING THE COMMUNICATIONS INDUSTRY
The communications industry continues to undergo various fundamental
regulatory, competitive and technological changes that make it difficult to
determine the form or degree of future regulation and competition affecting
our telephone and wireless operations. These changes may have a
significant impact on the future financial performance of all
communications companies.
In February 1996 the United States Congress enacted the
Telecommunications Act of 1996, which obligates LECs to permit competitors
to interconnect their facilities to the LEC's network and to take various
other steps that are designed to promote competition. Prior to and since
the enactment of the Telecommunications Act, the FCC and a number of state
legislative and regulatory bodies have taken additional steps to foster
competition. Coincident with this recent movement toward increased
competition has been the gradual reduction of regulatory oversight of LECs.
These cumulative changes, coupled with the growth in wireless telephone
services and other technological changes, have led to the continued growth
of various companies providing services that compete with LECs' services.
Several FCC initiatives over the past decade have resulted in the
allocation of additional frequency spectrum or the issuance of licenses
for wireless communications technologies that are competitive with our
cellular and telephone operations, including PCS, mobile satellite services
and enhanced specialized mobile radio service. Several of our wireless
competitors have substantially larger wireless networks and substantially
greater financial and marketing resources than CenturyTel.
FUTURE ACQUISITIONS
We continually evaluate the possibility of acquiring additional
telecommunications assets in exchange for cash, securities or both, and at
any given time may be engaged in discussions or negotiations regarding
additional acquisitions. We generally do not announce our acquisitions
until we have entered into a preliminary or definitive agreement. Over the
past few years, the number and size of communications properties on the
market has increased substantially. Although our primary focus will
continue to be on acquiring telephone and wireless interests that are
proximate to our properties or that serve a customer base large enough for
us to operate efficiently, other communications interests may also be
acquired and these acquisitions could have a material impact upon
CenturyTel.
USE OF PROCEEDS
Unless otherwise indicated in any prospectus supplement, the net
proceeds from the sale of securities offered by this prospectus will be
used for financing acquisitions, refinancing outstanding indebtedness or
other general corporate purposes, including funding new business
initiatives, capital expenditures or strategic investments. Although our
financing plans are not yet complete and will be dependent on market
conditions, we currently anticipate selling debt or equity securities, or
both, in one or more offerings to finance a substantial portion of the cost
of completing our pending GTE acquisitions described above under "The
Company - Recent Developments -- Pending Acquisitions." Upon any sale of
securities offered by this prospectus, we will describe the specific
allocation of the net sales proceeds in the prospectus supplement relating
to that offering.
We expect to engage periodically in additional private or public
financings as market conditions warrant and as the need arises.
EARNINGS RATIOS
Our ratio of earnings to fixed charges and ratio of earnings to fixed
charges and preferred stock dividends were as follows for the years
indicated:
<TABLE>
<CAPTION>
Years Ended December 31,
-------------------------------------------
1995 1996 1997 1998 1999
---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C>
Ratio of earnings(1)
to fixed charges(2) 4.75x 5.13x 7.84x 3.25x 3.76x
Ratio of earnings(1) to fixed
charges(2) and preferred stock
dividends(3) 4.74x 5.10x 7.80x 3.25x 3.75x
</TABLE>
_______________________
(1) Earnings consist of income before income taxes and fixed charges, with
adjustments primarily for earnings of and distributions from unconsolidated
subsidiaries.
(2) Fixed charges include interest expense, including amortized debt
issuance costs, and preferred stock dividend costs of subsidiaries.
(3) We have assumed that our preferred stock dividend requirements were
equal to the pre-tax earnings that would be required to cover those
dividend requirements. We computed those pre-tax earnings using actual tax
rates for each period.
DESCRIPTION OF SENIOR DEBT SECURITIES
We may periodically issue senior debt securities in one or more
series. The general terms of the senior debt securities are described
below. The particular terms of each series will be described in a
prospectus supplement.
The senior debt securities will be issued under an Indenture, dated as
of March 31, 1994, between us and Regions Bank (successor-in-interest to
First American Bank & Trust of Louisiana and Regions Bank of Louisiana), as
Trustee. The particular terms of each series will be set forth in a
resolution of a committee of our board of directors specifically
authorizing that series or in one or more supplemental indentures. The
following summary is not complete and is subject to the provisions of, and
is qualified in its entirety by express reference to, the Indenture and the
board resolution. A copy of the Indenture and a form of the board
resolution are each filed as exhibits to the registration statement
referred to on page 1.
Unless otherwise indicated, each reference italicized in parentheses
below or in any prospectus supplement applies to section numbers in the
Indenture and each capitalized term not otherwise defined herein has the
meaning assigned to it in the Indenture.
GENERAL
The senior debt securities will be general unsecured obligations of
CenturyTel and will rank prior to all of our subordinated debt and will
have the same rank as all of our other unsecured debt.
We are a holding company and derive substantially all of our income
and operating cash flow from our subsidiaries. As a result, we rely upon
our subsidiaries to generate the funds necessary to meet our obligations,
including the payment of principal and interest on any senior debt
securities that may be issued hereunder. Certain of our subsidiaries' loan
agreements contain various restrictions on the transfer of funds to us,
including certain provisions that restrict the amount of dividends that may
be paid to us. At March 31, 2000, the amount of retained earnings of our
subsidiaries not subject to dividend restrictions was approximately $750
million. Moreover, our rights to receive assets of any subsidiary upon its
liquidation or reorganization (and the ability of holders of senior debt
securities to benefit indirectly therefrom) are subject to the prior claims
of creditors of that subsidiary.
Unless we state otherwise below or in any prospectus supplement,
neither the Indenture nor the senior debt securities to be offered thereby
(1) limit the amount of secured or unsecured indebtedness that we or any of
our subsidiaries may issue or incur, (2) restrict our ability to pay
dividends or sell or transfer our assets or (3) contain provisions that
would afford senior debt holders protection in the event of a change in
control, highly leveraged transaction, recapitalization or similar
transaction involving CenturyTel, any of which could adversely affect the
senior debt holders.
If we sell any series of senior debt securities hereunder, our related
prospectus supplement will describe the terms of the series, including some
or all of the following:
* the title and aggregate principal amount of the series
* our net proceeds from the sale thereof
* the price or prices at which the series will be issued
* the date or dates of maturity
* the rate or rates per annum, if any, at which the series will
bear interest or the method of determining the rate or rates
* the date or dates from which interest will accrue and the date
or dates at which interest will be payable
* the terms of any conversion or exchange rights
* the terms for redemption or early payment, if any, including
any mandatory or optional sinking fund or similar provisions
* any special United States federal income tax considerations
applicable to the series
* any special provisions relating to the defeasance of the
series
* any special considerations, additional covenants or other
specific provisions applicable to the series.
The senior debt securities may bear interest at a fixed or floating
rate. Senior debt securities bearing no interest or interest at a rate
that at the time of issuance is below the prevailing market rate may be
sold at a discount below their stated principal amount.
The Indenture is, and the senior debt securities will be, governed by
Louisiana law. The Indenture is subject to and governed by the Trust
Indenture Act of 1939, as amended.
DENOMINATIONS, REGISTRATION AND TRANSFER
The senior debt securities will be issued only in fully registered
form and, unless we state otherwise in any prospectus supplement, in
denominations of $1,000 or any multiples thereof (SECTION 2.03). The
Trustee will act as the registrar of each series (SECTION 2.05). No
service charge will be made for any registration of transfer or exchange of
senior debt securities, or issue of new senior debt securities in the event
of a partial redemption of any series, but we may generally require payment
of a sum sufficient to cover any tax or other governmental charge payable
in connection therewith (SECTION 2.05). The Trustee may appoint an
authenticating agent for any series to act on the Trustee's behalf in
connection with authenticating senior debt securities of that series issued
upon the exchange, transfer or partial redemption thereof (SECTION 2.10).
The Trustee may at any time rescind the designation of any such agent
(SECTION 2.10).
We shall not be required to issue, register the transfer of or
exchange the senior debt securities of any series during a period beginning
15 days before any selection of senior debt securities of that series to be
redeemed and ending at the close of business on the day of mailing of the
relevant redemption notice or to register the transfer of or exchange any
senior debt securities of any series, or portions thereof, called for
redemption (SECTION 2.05).
GLOBAL SECURITIES
We may issue the senior debt securities in whole or in part in the
form of one or more global registered securities that will be deposited
with a depositary identified in a prospectus supplement. We may issue
global securities in either temporary or permanent form. A prospectus
supplement will contain additional information about the depositary
arrangements.
Registered global securities will be registered in the depositary's
name or in the name of its nominee. When we issue a global security, the
depositary will credit that amount of senior debt securities to the
investors that have accounts with the depositary or its nominee. The
underwriters or the senior debt security holders' agent will designate the
accounts to be credited, unless the senior debt securities are offered and
sold directly by CenturyTel, in which case, we will designate the
appropriate accounts to be credited.
Institutions that have accounts with the depositary or its nominee are
referred to as "participants." Ownership of beneficial interests in a
global security will be limited to participants and to persons that may
hold beneficial interests through participants. The depositary will
credit, on its book-entry registration and transfer system, the respective
principal amounts of senior debt securities represented by the global
security to the accounts of its participants. Participants' beneficial
interests in a global security will be shown on and effected through
records maintained by the depositary. Beneficial interests held by
investors through participants will be reflected in records maintained by
the participant.
As long as the depositary, or its nominee, is the registered owner of
a global security, the depositary or that nominee will be considered the
sole owner and holder of the senior debt securities represented by that
global security for all purposes under the Indenture. Except as set forth
below, beneficial owners of global securities held by a depositary will not
be entitled to:
* register the represented senior debt securities in their names
* receive physical delivery of the senior debt securities
* be recognized as the owners or holders of the global security
under the Indenture.
Accordingly, each person owning a beneficial interest in a registered
global security must rely on the procedures of the depositary for the
registered global security and, if the person is not a participant, on the
procedures of a participant through which the person owns its interest, to
exercise any rights of a holder under the Indenture.
We understand that, under existing industry practices, if we request
any action of holders or if an owner of a beneficial interest in a
registered global security desires to give or take any action that a holder
is entitled to give or take under the Indenture, the depositary for the
registered global security would authorize the participants holding the
relevant beneficial interests to give or take the action, and the
participants would authorize beneficial owners owning through the
participants to give or take the action or would otherwise act upon the
instructions of beneficial owners holding through them.
Payments on senior debt securities registered in the name of a
depositary or its nominee will be made to the depositary or its nominee.
Accordingly, neither CenturyTel, the Trustee nor any paying agent will have
any direct responsibility to pay amounts due on the global securities to
owners of beneficial interests in such securities. When a depositary
receives a payment, it is typically obligated to immediately credit the
participants' accounts in amounts proportionate to the participants'
interests in the global security. Investors who hold their beneficial
interest in a global security through a participant should, and are
expected to, establish standing instructions and customary practices with
their participant to ensure that payments can be made with regard to
securities beneficially held for them, much like securities held for the
accounts of customers in bearer form or registered in "street name."
A global security can only be transferred in whole by the depositary
to a nominee of such depositary, or to another nominee of a depositary. If
a depositary is unwilling or unable to continue as a depositary and we do
not appoint a successor depositary within 90 days, we will issue senior
debt securities in definitive form in exchange for all of the global
securities held by that depositary. In addition, we may eliminate all
global securities at any time and issue senior debt securities in
definitive form in exchange for them. Further, we may allow a depositary
to surrender a global security in exchange for senior debt securities in
definitive form on any terms that are acceptable to us and the depositary.
If any of these events occur, we will execute and the Trustee will
authenticate and deliver to the beneficial owners of the global security in
question a new registered security in and amount equal to and in exchange
for that person's beneficial interest in the exchanged global security.
The depositary will receive a new global security in an amount equal to the
difference, if any, between the amount of the surrendered global security
and the amount of senior debt securities delivered to the beneficial
owners. Senior debt securities issued in exchange for global securities
will be registered in the same names and in the same denominations as
indicated by the depositary's records and in accordance with the
instructions from its direct and indirect participants.
The laws of certain jurisdictions require some investors who purchase
securities to actually take physical possession of those securities in
definitive form. The limitations imposed by these laws may impair your
ability to transfer your beneficial interests in a global security.
PAYMENT AND PAYING AGENTS
Unless we state otherwise in the applicable prospectus supplement,
payment of principal of (and premium, if any) and interest on senior debt
securities of any series will be made in U.S. dollars at the principal
office of our Paying Agent or, at our option, by check in U.S. dollars
mailed or delivered to the person in whose name such senior debt security
is registered. Unless we state otherwise in the applicable prospectus
supplement and subject to certain exceptions provided for in the Indenture,
payment of any installment of interest on any series will be made to the
person in whose name such senior debt security is registered at the close
of business on the record date established under the Indenture for the
payment of interest (SECTION 2.03).
Unless we state otherwise in the applicable prospectus supplement, the
Trustee will act as our sole Paying Agent and 1500 North 18th Street,
Monroe, Louisiana, will be designated as the agent's office for purposes of
payments with respect to senior debt securities. Any other Paying Agents
initially designated by us with respect to any series will be named in the
related prospectus supplement. We may at any time designate additional
Paying Agents or rescind the designation of any Paying Agents or approve a
change in the office through which any Paying Agent acts, except that we
will be required to maintain a Paying Agent in the Borough of Manhattan,
City and State of New York, or Monroe, Louisiana. (SECTIONS 4.02 AND
4.03).
Any money set aside by us for the payment of principal of (and
premium, if any) or interest on any senior debt securities that remains
unclaimed two years after such payment has become due and payable will be
repaid to us on May 31 following the expiration of the two-year period and
the holder of the senior debt security may thereafter look only to us for
payment thereof (SECTION 11.05).
CONVERSION OR EXCHANGE RIGHTS
The senior debt securities may be convertible into or exchangeable for
shares of common stock, preferred stock or other securities of CenturyTel
or any other issuer. The terms and conditions of exchange or conversion
will be stated in the applicable prospectus supplement. The terms will
include, among other things, the following:
* the type of security into which the senior debt securities are
convertible or exchangeable
* the conversion or exchange price or ratio (or manner of
calculation thereof)
* the conversion or exchange period
* provisions as to whether the conversion or exchange rights
will be at the option of the senior debt holders, CenturyTel, or
both
* the events requiring an adjustment of the conversion or
exchange price or ratio
* any restrictions on conversion or exchange.
REDEMPTION AND SINKING FUND PROVISIONS
A series may be redeemed, in whole or in part, upon not less than 30
days' and not more than 60 days' notice at the redemption prices and
subject to the terms and conditions (including those relating to any
sinking fund established with respect to such series) that may be set forth
in a board resolution or supplemental indenture and in the prospectus
supplement relating to such series (SECTIONS 3.01 AND 3.02). If less than
all of the senior debt securities of the series are to be redeemed, the
Trustee shall select the senior debt securities of such series, or portions
thereof, to be redeemed pro rata, by lot or by any other method the Trustee
shall deem fair and reasonable (SECTION 3.02).
REPLACEMENT OF SECURITIES
We will replace any senior debt security that becomes mutilated,
destroyed, lost or stolen at the expense of the holder. The holder should
deliver the senior debt security or satisfactory evidence of the
destruction, loss or theft thereof to us and the Trustee. An indemnity
satisfactory to us and the Trustee may be required before a replacement
security will be issued (SECTION 2.07).
EVENTS OF DEFAULT AND NOTICE THEREOF
Unless we state otherwise in the applicable prospectus supplement, the
terms and conditions set forth under this heading will govern defaults
under the Indenture. The Indenture provides that each of the following
described events constitute Events of Default with respect to each series
of senior debt securities:
* failure for 30 business days to pay interest on the senior
debt securities of that series when due
* failure to pay principal of (or premium, if any, on) the
senior debt securities of that series when due (whether at
maturity, upon redemption, by declaration or otherwise) or to
make any sinking or analogous fund payment with respect to that
series unless caused solely by a wire transfer malfunction or
similar problem outside our control
* failure to observe or perform any other covenant of that
series for 60 days after written notice with respect thereto
* certain events relating to bankruptcy, insolvency or
reorganization (SECTION 6.01).
If an Event of Default shall occur and be continuing with respect to
any series and if it is known to the Trustee, the Trustee is required to
mail to each holder of that series a notice of the Event of Default within
90 days of such default (SECTION 6.07).
Upon an Event of Default, the Trustee or the holders of not less than
25% in aggregate outstanding principal amount of any series, by notice in
writing to us (and to the Trustee if given by such holders), may declare
the principal of all senior debt securities of that series due and payable
immediately, but the holders of a majority in aggregate outstanding
principal amount of such series may rescind such declaration and waive the
default if the default has been cured and a sum sufficient to pay all
matured installments of interest and principal (and premium, if any) has
been deposited with the Trustee before any judgment or decree for such
payment has been obtained or entered (SECTION 6.01).
Holders of senior debt securities may not enforce the Indenture except
as provided therein. Subject to the provisions of the Indenture relating
to the duties of the Trustee, if an Event of Default occurs and is
continuing the Trustee will be under no obligation to exercise any of the
rights or powers under the Indenture at the request or direction of any
holders of the affected series, unless, among other things, the holders
shall have offered the Trustee indemnity reasonably satisfactory to it.
Subject to the indemnification provisions and certain limitations contained
in the Indenture, the holders of a majority in aggregate principal amount
of the senior debt securities of such series then outstanding will have the
right to direct the time, method and place of conducting any proceeding for
any remedy available to the Trustee or exercising any trust or power
conferred on the Trustee. The holders of a majority in aggregate principal
amount of the then outstanding senior debt securities of any series
affected by a default may, in certain cases, waive such default except a
default in payment of principal of, or any premium, if any, or interest on,
the senior debt securities of that series or a call for redemption of the
senior debt securities of that series (SECTIONS 6.04 AND 6.06).
We will be required to furnish to the Trustee annually a statement
regarding our performance of certain of our obligations under the Indenture
(SECTION 5.03).
DISCHARGE AND DEFEASANCE
The Indenture provides that we may discharge the Indenture with
respect to any series, subject to certain exceptions, if at any time
(1) we deliver to the Trustee for cancellation all outstanding senior
debt securities of that series previously authenticated and for
whose payment money or U.S. Government Obligations have been
deposited in trust by us, or
(2) all outstanding senior debt securities of that series not
previously delivered to the Trustee for cancellation by us shall
have become due and payable or are to become due and payable or
called for redemption within one year and we have deposited with
the Trustee the entire amount in moneys or U.S. Government
Obligations sufficient, without reinvestment, to pay at maturity
or upon redemption the outstanding senior debt securities,
including principal (and premium, if any) and interest due or to
become due to the date of maturity or redemption, and if we shall
also pay or cause to be paid all other sums payable thereunder
with respect to that series (SECTION 11.01).
Additionally, the Indenture provides that we may discharge all of our
obligations under the Indenture with respect to any series, subject to
certain exceptions, if at any time all outstanding senior debt securities
of that series not previously delivered to the Trustee for cancellation by
us or which have not become due and payable as described above shall have
been paid by us by depositing irrevocably with the Trustee moneys or U.S.
Government Obligations sufficient to pay at maturity or upon redemption the
outstanding senior debt securities, including principal (and premium, if
any) and interest due or to become due to the date of maturity or
redemption, and if we shall also pay all other sums payable thereunder with
respect to that series (SECTION 11.02).
MERGER AND CONSOLIDATION
Nothing in the Indenture or any of the senior debt securities prevents
us from consolidating or merging with or into, or selling or otherwise
disposing of all or substantially all of our assets to, another
corporation, provided that (1) we agree to obtain a supplemental indenture
pursuant to which the surviving entity or transferee agrees to assume our
obligations under all outstanding senior debt securities and (2) the
surviving entity or transferee is organized under the laws of the United
States, any state thereof or the District of Columbia (SECTION 10.01).
MODIFICATION OF INDENTURE
The Indenture contains provisions permitting us, when authorized by a
board resolution, and the Trustee, with the consent of the holders of not
less than a majority in aggregate principal amount of the senior debt
securities of any series at the time outstanding and affected by such
modification, to modify the Indenture or any supplemental indenture
affecting that series. However, no such modification may
(1) extend the fixed maturity of any senior debt securities of any
series, reduce the principal amount thereof, reduce the rate or
extend the time of payment of interest thereon or reduce any
premium payable upon the redemption thereof, without the consent
of the holder of each senior debt security so affected, or
(2) reduce the aforesaid percentage of senior debt securities, the
holders of which are required to consent to any such supplemental
indenture, without the consent of the holder of each senior debt
security then outstanding and affected thereby (SECTION 9.02).
CenturyTel and the Trustee may execute, without the consent of any
holder of senior debt securities, a supplemental indenture for certain
other usual purposes, including the following:
* creating a new series
* evidencing the assumption by any successor to CenturyTel of
our obligations under the Indenture
* adding covenants to the Indenture for the protection of the
holders of senior debt securities
* curing any ambiguity or inconsistency in the Indenture, or
making other provisions as shall not adversely affect the
interests of the holders of the senior debt securities of any
series
* changing or eliminating any provisions of the Indenture
provided that there is no outstanding senior debt security of any
series created prior to such change which would benefit therefrom
(SECTIONS 2.01, 9.01 AND 10.01).
LIMITATIONS ON LIENS
The Indenture provides that CenturyTel will not, while any of the
senior debt securities remain outstanding, create or suffer to exist any
mortgage, lien, pledge, security interest or other encumbrance (which we
collectively refer to below as liens) upon our property, whether now owned
or hereafter acquired, unless we shall secure the senior debt securities
then outstanding by such lien equally and ratably with all obligations and
indebtedness thereby secured so long as such obligations and indebtedness
remain so secured. Notwithstanding the foregoing, the Indenture will not
restrict us from creating or suffering to exist any of the following:
* liens upon property hereafter acquired by us or liens on such
property at the time of the acquisition thereof, or conditional
sales agreements or title retention agreements with respect to
any such property
* liens on the stock of a corporation which, when such liens
arise, concurrently becomes our subsidiary, or liens on all or
substantially all of the assets of a corporation arising in
connection with our purchase thereof
* liens for taxes and similar levies, deposits to secure
performance or obligations under certain specified circumstances
and laws, mechanics' liens and similar liens arising in the
ordinary course of business, liens created by or resulting from
legal proceedings being contested in good faith, certain
specified zoning restrictions and other restrictions on the use
of real property, interests of lessors in property subject to any
capitalized lease, and certain other similar liens generally
arising in the ordinary course of business
* liens existing on the date of the Indenture
* liens that replace, extend or renew any lien otherwise
permitted under the Indenture (SECTIONS 4.05 AND 4.06).
The restriction in the Indenture described above would not protect the
senior debt holders in the event of a highly leveraged transaction in which
unsecured indebtedness was incurred or in which the liens arising in
connection therewith were freely permitted under the Indenture, nor would
it afford protection in the event of one or more highly leveraged
transactions in which secured indebtedness was incurred by our
subsidiaries. However, in the event of one or more highly leveraged
transactions in which we incurred secured indebtedness, these provisions
would require the senior debt securities to be secured equally and ratably
with such indebtedness, subject to the exceptions described above.
CONCERNING THE TRUSTEE
The Trustee, prior to the occurrence of an Event of Default,
undertakes to perform only such duties as are specifically set forth in the
Indenture and, after the occurrence of an Event of Default, shall exercise
the same degree of care as a prudent person would exercise in the conduct
of such person's own affairs (SECTION 7.01). Subject to such provision,
the Trustee is under no obligation to exercise any of the rights or powers
vested in it by the Indenture at the request, order or direction of any
senior debt holders, unless offered reasonable security or indemnity by
such holders against the costs, expenses and liabilities which might be
incurred thereby (SECTION 7.02). The Trustee is not required to expend or
risk its own funds or incur personal financial liability in the performance
of its duties if the Trustee reasonably believes that repayment of such
funds or liability or adequate indemnity is not reasonably assured to it
(SECTION 7.01). We will pay the Trustee reasonable compensation and
reimburse it for all reasonable expenses incurred in accordance with the
Indenture (SECTION 7.06).
The Trustee may resign with respect to one or more series and a
successor Trustee may be appointed to act with respect to such series
(SECTION 7.10).
The Trustee also serves as trustee for certain of our employee benefit
plans and provides revolving credit and other traditional banking services
to CenturyTel. The following officers and directors of CenturyTel act as
non-voting regional advisory directors of the Trustee: Clarke M. Williams,
Chairman of the Board, Glen F. Post, III, President, Chief Executive
Officer and Vice Chairman of the Board, and William R. Boles, Jr.,
Director.
DESCRIPTION OF PREFERRED STOCK
We may issue preferred stock in one or more series. This general
description and the specific description of any particular series of
preferred stock in the related prospectus supplement will not be complete.
You should refer to the applicable provisions in our articles of
incorporation and the articles of amendment relating to each series of
preferred stock that has been or will be filed by us with the Securities
and Exchange Commission.
GENERAL
Our articles of incorporation authorize the board of directors to
issue from time to time, without shareholder approval, up to 2,000,000
shares of preferred stock, par value $25.00 per share, in one or more
series. As of March 31, 2000, we had outstanding 319,000 shares of Series
L preferred stock. The rights, preferences, designations and size of each
series will be described in an amendment to our articles of incorporation.
A prospectus supplement relating to each series will specify the terms of
the preferred stock as determined by our board of directors, including the
following:
* the specific designation, number of shares, rank and purchase
price
* any per share liquidation preference
* any redemption, payment or sinking fund provisions
* any dividend rates (fixed or variable) and the dates on which
any dividends will be payable (or the method by which the rates
or dates will be determined)
* any voting rights
* the methods by which amounts payable in respect of the
preferred stock may be calculated
* whether the preferred stock is convertible or exchangeable
and, if so, a description of each of the following
(1) the securities into which the preferred stock is
convertible or exchangeable
(2) the terms and conditions upon which conversions or exchanges
will be effected, including the initial conversion or
exchange prices or ratios
(3) the conversion or exchange period
(4) any other related provision
* a description of any material United States federal income tax
consequences relating to the series
* the place or places where dividends and other payments on the
preferred stock will be payable
* any additional voting, dividend, liquidation, redemption,
sinking fund or other rights, preferences, qualifications,
limitations and restrictions.
Unless the applicable prospectus supplement states otherwise, the
preferred stock will not have preemptive rights and all shares of preferred
stock will be of equal rank, regardless of series. Neither the par value
nor the liquidation preference of the preferred stock is indicative of the
price at which the preferred stock may actually trade on or after the date
of issuance. Unless the applicable prospectus supplement states
otherwise, there will be no restriction on our ability to repurchase or
redeem preferred stock while there is any arrearage in payment of dividends
or sinking fund installments.
Although it has no present intention to do so, our board of directors
could authorize us to issue preferred stock with voting, conversion and
other rights that could adversely affect the voting power and other rights
of holders of our common stock or other series of preferred stock. Also,
the issuance of preferred stock could have the effect of delaying,
deferring or preventing a change in control.
OUTSTANDING PREFERRED STOCK
As of March 31, 2000, we had outstanding 319,000 shares of 5%
Cumulative Convertible Series L Preferred Stock. Each share of Series L
Preferred Stock entitles the holder thereof to one vote on all matters duly
submitted to a vote of shareholders. The holder of each share of Series L
Preferred Stock is entitled to receive an annual cash dividend of $1.25,
payable in quarterly installments. Dividends on Series L Preferred Stock
are cumulative and dividends cannot be paid with respect to common stock
unless all cumulative dividends on all shares of Series L Preferred Stock
shall have been paid. In the event we liquidate, dissolve or wind up our
affairs, the holders of Series L Preferred Stock are entitled to receive,
equally and ratably with all other holders of preferred stock of equal
rank, $25.00 per share plus accrued and unpaid dividends, before any
payment is made to holders of common stock. Each share of Series L
Preferred Stock is convertible, at the option of the holder, into the
number of shares of common stock derived by dividing $25.00 by the
"Conversion Price" (currently, approximately $18.33 following adjustments
due to the occurrence of certain specified Diluting Events).
We anticipate that any series of preferred stock issued hereunder will
have the same rank as the Series L Preferred Stock as to dividend payments
and liquidation distributions. However, if so indicated in a prospectus
supplement, the terms of any series issued hereunder may differ from the
terms set forth herein.
DESCRIPTION OF THE COMMON STOCK
Our articles of incorporation authorize us to issue 350,000,000 shares
of Common Stock, $1.00 par value per share. As of March 31, 2000,
140,229,175 shares of common stock were outstanding. The common stock is
listed for trading on the New York Stock Exchange.
GENERAL
VOTING RIGHTS. Under our articles of incorporation, each share of
common stock that has been beneficially owned by the same person or entity
continuously since May 30, 1987 generally entitles the holder to ten votes
on all matters duly submitted to a vote of shareholders. Otherwise, each
share entitles the holder thereof to one vote per share. Accordingly, each
share issued in connection with this prospectus will entitle the holder to
one vote, and, subject to limited exceptions, each other share of common
stock issued by us in the future will entitle the holder to one vote.
Holders of our common stock do not have cumulative voting rights. As
a result, the holders of more than 50% of the voting power may elect all of
our directors. Our board of directors is divided into three classes of
directors, with each class serving three-year terms. Each class is
required to be as nearly equal in number as possible.
As of March 13, 2000, Regions Bank, the trustee for two of our
employee benefit plans, was the record holder of common stock having
approximately 28.5% of the total voting power of all classes of our capital
stock. The trustee votes these shares in accordance with the instructions
of our employees.
OTHER RIGHTS. Holders of common stock are entitled to receive
dividends when, as and if declared by the board of directors, out of funds
legally available therefor, subject to the preferences applicable to any
outstanding preferred stock.
In the event we liquidate, dissolve or wind up our affairs, holders of
common stock are entitled to receive ratably all of our assets remaining
after satisfying the preferences of our creditors and the holders of any
outstanding preferred stock.
Our common stock is not redeemable and has no subscription, conversion
or preemptive rights. All of our outstanding shares of common stock have
been fully paid and are non-assessable.
PREFERENCE SHARE PURCHASE RIGHTS
We have adopted a Rights Agreement that provides for the issuance of
one preference share purchase right for each outstanding share of common
stock. If anyone acquires 15% or more of our outstanding common stock
(which we refer to as an Acquiring Person), each holder of a right, other
than the Acquiring Person, will be entitled to receive upon exercise of
each right additional shares of our common stock having a current market
value of two times the exercise price of $135. In addition, if we are
acquired in a merger or other business combination or 50% or more of our
assets or earning power is sold after there is an Acquiring Person, each
holder of a right will be entitled to buy, at the exercise price, common
stock of the acquirer having a current market value of two times the
exercise price.
At any time before there is an Acquiring Person, we can redeem the
rights in whole, but not in part, for $.01 per right, or may amend the
Rights Agreement in any way without the consent of the holders of the
rights. Prior to an Acquiring Person acquiring 50% or more of our
outstanding common stock, we may exchange the rights, other than rights
held by the Acquiring Person, for common stock at an exchange ratio
specified in the Rights Agreement.
Until a right is exercised, the holder thereof, as such, will have no
rights as a shareholder. The rights will expire on November 1, 2006,
unless we extend this date or redeem or exchange the rights.
The complete terms of the rights are contained in our Rights
Agreement, as amended, which is incorporated by reference as an exhibit to
the registration statement referred to on page 1. In addition, you should
refer to our registration statements, as amended and restated on Form 8-
A/A, which are also incorporated by reference to the registration statement
referred on page 1. These registration statements on Form 8-A/A include
more specific descriptions of the terms of the rights and provisions of our
articles of incorporation and by-laws that could have an effect of
delaying, deferring, discouraging or preventing a change in control of our
company.
DESCRIPTION OF WARRANTS
We may issue warrants for the purchase of senior debt securities,
preferred stock or common stock. Warrants may be issued independently or
together with other securities and may be attached to or separate from any
offered securities. Each series of warrants will be issued under a
separate warrant agreement to be entered into between us and a bank or
trust company, as warrant agent. The warrant agent will act solely as our
agent in connection with the warrants and will not assume any obligation or
relationship of agency or trust for or with any holders or beneficial
owners of warrants. This summary of certain provisions of the warrants is
not complete. For the complete terms of the warrant agreement, you should
refer to the provisions of the warrant agreement that will be filed by us
with the Securities and Exchange Commission in connection with the offering
of such Warrants.
The prospectus supplement relating to any particular issue of warrants
will describe the terms of the warrants, including the following:
* the title and aggregate number of warrants
* the offering price for the warrants, if any
* the designation and terms of the securities that may be
purchased upon exercise of the warrants
* if applicable, the designation and terms of the securities
with which the warrants are issued and the number of warrants
issued with each other security
* if applicable, the date on and after which the warrants and
the related other securities issued therewith will be separately
transferable
* the number of shares of common stock or preferred stock or the
principal amount of debt securities that may be purchased upon
exercise of a warrant and the price at which the securities may
be purchased upon exercise, which may be payable in cash,
securities or other property
* the date on which the right to exercise the warrants begins
and the date on which the right expires
* if applicable, the minimum or maximum amount of warrants that
may be exercised at any one time
* whether the warrants represented by the warrant certificates
or securities that may be issued upon exercise of the warrants
will be issued in registered or bearer form
* information with respect to book-entry procedures, if any
* a discussion of any material United States federal income tax
considerations
* the anti-dilution provisions of the warrants, if any
* any applicable redemption or call provisions
* any other terms of the warrants, including terms, procedures
and limitations relating to the exchange and exercise of the
warrants.
PLAN OF DISTRIBUTION
We may sell securities directly to one or more purchasers or to or
through underwriters, dealers or agents or through a combination of any
such methods of sale. Our prospectus supplement will set forth the terms
of the offering, including the name or names of any underwriters, the
purchase price and proceeds to us from such sale, any underwriting
discounts and other items constituting underwriters' compensation, the
initial public offering price and any discounts or concessions allowed,
reallowed or paid to dealers, and any securities exchanges on which the
securities may be listed.
We may distribute our securities from time to time in one or more
transactions at fixed or variable prices, at prices equal or related to
prevailing market prices or at negotiated prices. We also may directly
offer and sell securities in exchange for, among other things, our
outstanding debt or equity securities.
If underwriters are used in the sale, the underwriters will acquire
the securities for their own account. The underwriters may resell the
securities periodically in one or more transactions, including negotiated
transactions, at a fixed public offering price or at varying prices
determined at the time of sale. Securities may be offered to the public
through underwriting syndicates represented by one or more managing
underwriters or directly by one or more underwriters without a syndicate.
Unless otherwise set forth in the prospectus supplement, the obligations of
the underwriters to purchase securities will be subject to certain
conditions precedent, and the underwriters will be obligated to purchase
all securities offered if any are purchased. Any initial public offering
price and any discounts or concessions allowed, reallowed or paid to
dealers may be changed from time to time. We may grant underwriters who
participate in the distribution of securities an option to purchase
additional securities to cover any over-allotments in connection with the
distribution.
If a dealer is used in an offering of securities, we may sell the
securities to the dealer, as principal. The dealer may then resell the
securities to the public at varying prices to be determined by the dealer
at the time of sale.
Commissions payable by us to any agent involved in the offer or sale
of securities, or the method by which such commissions may be determined,
will be set forth in a prospectus supplement. Unless otherwise indicated
in the prospectus supplement, the agent will be acting on a best efforts
basis.
In connection with the sale of any securities, underwriters or agents
may be deemed to have received compensation from us in the form of
underwriting discounts or commissions and may also receive commissions from
purchasers of such securities for whom they may act as agents.
Underwriters may sell any securities to or through dealers. These dealers
may receive compensation in the form of discounts, concessions or
commissions from the underwriters or commissions from the purchasers for
whom they may act as agent, or both.
Dealers and agents named in a prospectus supplement may be deemed to
be underwriters of the securities within the meaning of the Securities Act
of 1933. Underwriters, dealers and agents may be entitled under agreements
entered into with us to indemnification by us against certain civil
liabilities, including liabilities under the Securities Act, or to
contribution with respect to payments that the underwriters, dealers or
agents may be required to make. Underwriters, dealers and agents may be
customers of, engage in transactions with, or perform services for us in
the ordinary course of business.
If so indicated in the prospectus supplement, we may authorize
underwriters, dealers or agents to solicit offers by certain specified
institutions to purchase securities 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 an
institution or on the portion of the aggregate principal amount of the
particular securities that may be sold pursuant to these arrangements. The
obligations of any purchaser under a delayed delivery contract will not be
subject to any conditions except that any related sale of offered
securities to underwriters shall have occurred and the purchase by an
institution of the securities covered by its delayed delivery contract
shall not at the time of delivery be prohibited under the laws of any
jurisdiction in the United States to which that institution is subject.
Underwriters will not have any responsibility in respect of the validity of
any delayed delivery contract or the performance by us or any institution
thereunder.
Except for our common stock, none of the securities when first issued
will have an established trading market. Any underwriters, dealers or
agents to or through whom the securities are sold for public offering may
make a market in the securities. However, generally they will not be
obligated to make a market and may discontinue any market making at any
time without notice. If the securities are traded after their initial
issuance, they may trade at a discount from their initial public offering
price, depending on general market conditions, the market for similar
securities, our performance and other factors. Other than with respect to
our common stock, which is currently traded on the New York Stock Exchange,
there can be no assurance that an active public market for the securities
will develop or be maintained.
LEGAL MATTERS
The validity of the securities will be passed upon for us by Jones,
Walker, Waechter, Poitevent, Carr<e`>re & Den<e`>gre, L.L.P., New Orleans,
Louisiana. Certain legal matters relating to offerings of securities may
be passed upon for the underwriters, dealers or agents, if any, by
Winthrop, Stimson, Putnam & Roberts, New York, New York.
EXPERTS
The consolidated financial statements and related financial statement
schedules of CenturyTel, Inc. and subsidiaries as of December 31, 1999 and
1998, and for each of the three years in the three-year period ended
December 31, 1999, included in our Annual Report on Form 10-K for the
fiscal year ended December 31, 1999, have been incorporated by reference
herein and in the registration statement referred to on page 1 in reliance
upon the report of KPMG LLP, independent certified public accountants,
incorporated by reference herein, and upon the authority of said firm as
experts in accounting and auditing.
* * * * * * * * * *
$2,000,000,000
CENTURYTEL, INC.
Senior Debt Securities
Preferred Stock
Common Stock
Warrants
--------------
PROSPECTUS
--------------
__________, 2000
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The estimated fees and expenses payable by us in connection with the
offering described in the registration statement are as follows:
SEC registration fee.................. $ 281,675
Printing costs........................ 15,000
Legal fees and expenses............... 50,000
Accounting fees and expenses.......... 50,000
Rating agency fees.................... 855,000
Blue Sky fees and expenses............ 7,500
Fees and expenses of Trustee....... 15,000
Miscellaneous......................... 5,825
-------------
Total................................. $ 1,280,000
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 83 of the Louisiana Business Corporation Law provides in part
that we may indemnify any of our directors, officers, employees or agents
against expenses (including attorneys' fees), judgments, fines and amounts
paid in settlement actually and reasonably incurred by him in connection
with any action, suit or proceeding to which he is or was a party or is
threatened to be made a party (including any action by us or in our right)
if such action arises out of his acts on our behalf and he acted in good
faith not opposed to our best interests, and, with respect to any criminal
action or proceeding, had no reasonable cause to believe his conduct was
unlawful. We have the power to obtain and maintain insurance, or to create
a form of self-insurance, on behalf of any person who is or was acting for
us, regardless of whether we have the legal authority to indemnify the
insured person against such liability.
Article II, Section 10 of our by-laws (the "indemnification by-law")
provides for mandatory indemnification for our current or former directors
and officers to the fullest extent permitted by Louisiana law.
Our articles of incorporation authorize us to enter into contracts
with directors and officers providing for indemnification to the fullest
extent permitted by law. We have entered into indemnification contracts
providing contracting directors or officers the procedural and substantive
rights to indemnification currently set forth in the indemnification by-law
("indemnification contracts"). The right to indemnification provided by an
indemnification contract applies to all covered claims, whether such claims
arose before or after the effective date of the contract.
We maintain an insurance policy covering the liability of our
directors and officers for actions taken in their official capacity. The
indemnification contracts provide that, to the extent insurance is
reasonably available, we will maintain comparable insurance coverage for
each contracting party as long as he serves as an officer or director and
thereafter for so long as he is subject to possible personal liability for
actions taken in such capacities. The indemnification contracts also
provide that if we do not maintain comparable insurance, we will hold
harmless and indemnify a contracting party to the full extent of the
coverage that would otherwise have been provided for his benefit.
ITEM 16. EXHIBITS.
The exhibits to this registration statement are listed in the exhibit
index, which appears elsewhere herein and is incorporated herein by
reference.
ITEM 17. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3)
of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of this registration statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change
in the information set forth in this registration statement.
Notwithstanding the foregoing, any increase or decrease in volume
of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus filed
with the SEC pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20 percent
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 this
registration statement or any material change to such information
in this registration statement;
PROVIDED, HOWEVER, that paragraphs (a)(1)(i) and (a)(1)(ii) 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 undertakes that, for purposes
of determining any liability under the Securities Act of 1933, each filing
of CenturyTel'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.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the registrant pursuant to the foregoing provisions,
or otherwise, the registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public
policy as expressed in the Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities (other than
the payment by the registrant of expenses incurred or paid by a director,
officer, or controlling person of the registrant in the successful defense
of any action, suit, or proceeding) is asserted by such director, officer,
or controlling person in connection with the securities being registered,
the registrant will, unless in the opinion of its counsel the matter has
been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against
public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
* * * * * * * * * *
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-3 and has duly caused
this registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Monroe, State of Louisiana, on
April 21, 2000.
CENTURYTEL, INC.
By: /S/ GLEN F. POST, III
-----------------------------------
Glen F. Post, III
Vice Chairman of the Board
of Directors, President and
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears immediately below constitutes and appoints Clarke M. Williams, Glen
F. Post, III and Harvey P. Perry, or any one of them, his true and lawful
attorney-in-fact and agent, with full power of substitution, for him and in
his name, place and stead, in any and all capacities, to sign any and all
amendments (including post-effective amendments) to this registration
statement, and to file the same with all exhibits thereto, and all
supplements and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorney-in-fact and
agent full power and authority to do and perform each and every act and
thing requisite and necessary to be done, as fully to all intents and
purposes as he might or could do in person, hereby ratifying and confirming
all that such attorney-in-fact and agent or his substitute or substitutes
may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
--------- ----- ----
/S/ CLARKE M. WILLIAMS Chairman of the Board April 21, 2000
- ----------------------- of Directors
Clarke M. Williams
/S/ GLEN F. POST, III Vice Chairman of the Board April 21, 2000
- ---------------------- of Directors, President
Glen F. Post, III and Chief Executive Officer
/S/ R. STEWART EWING, JR. Executive Vice President April 21, 2000
- --------------------------- and Chief Financial Officer
R. Stewart Ewing, Jr. (Principal Financial Officer)
/S/ NEIL A. SWEASY Vice President and Controller April 21, 2000
- --------------------------- (Principal Accounting Officer)
Neil A. Sweasy
/S/ HARVEY P. PERRY Director April 21, 2000
- ---------------------------
Harvey P. Perry
/S/ JIM D. REPPOND Director April 21, 2000
- ---------------------------
Jim D. Reppond
/S/ WILLIAM R. BOLES, JR. Director April 21, 2000
- ---------------------------
William R. Boles, Jr.
/S/ ERNEST BUTLER, JR. Director April 21, 2000
- ---------------------------
Ernest Butler, Jr.
- --------------------------- Director April 21, 2000
Calvin Czeschin
/S/ JAMES B. GARDNER Director April 21, 2000
- ---------------------------
James B. Gardner
/S/ W. BRUCE HANKS Director April 21, 2000
- ---------------------------
W. Bruce Hanks
/S/ R. L. HARGROVE, JR. Director April 21, 2000
- ---------------------------
R. L. Hargrove, Jr.
/S/ JOHNNY HEBERT Director April 21, 2000
- ---------------------------
Johnny Hebert
/S/ F. EARL HOGAN Director April 21, 2000
- ---------------------------
F. Earl Hogan
/S/ C. G. MELVILLE, JR. Director April 21, 2000
- ---------------------------
C. G. Melville, Jr.
/S/ VIRGINIA BOULET Director April 21, 2000
- ---------------------------
Virginia Boulet
EXHIBIT NO.EXHIBIT
1 Form of Underwriting Agreement to be used in connection with sales
of senior debt securities.
3.1 Amended and Restated Articles of Incorporation of CenturyTel, dated
as of May 6, 1999 (incorporated by reference to Exhibit 3(i) to
CenturyTel's Quarterly Report on Form 10-Q for the quarter ended
June 30, 1999).
3.2 By-laws of CenturyTel as amended through November 18, 1999
(incorporated by reference to Exhibit 3(ii) of CenturyTel's Annual
Report on Form 10-K for the year ended December 31, 1999).
4.1 Rights Agreement dated as of August 27, 1996 between CenturyTel
and Harris Trust and Savings Bank (successor-in-interest to Society
National Bank), as Rights Agent (incorporated by reference to
Exhibit 1 to CenturyTel's Current Report on Form 8-K filed August
30, 1996), as amended by Amendment No. 1 to Rights Agreement, dated
May 25, 1999 (incorporated by reference to Exhibit 4.2 (ii) to
CenturyTel's Current Report on Form 8-K dated May 25, 1999).
4.2 Indenture dated as of March 31, 1994 between CenturyTel and Regions
Bank (successor-in-interest to First American Bank & Trust of
Louisiana and Regions Bank of Louisiana), as Trustee.
4.3 Form of board resolution to be used in designating and authorizing
the terms and conditions of any series of senior debt securities
offered hereunder.
4.4 Form of senior debt security (included within Exhibit 4.3).
4.5 Form of preferred stock.*
4.6 Form of Articles of Amendment to CenturyTel's Amended and Restated
Articles of Incorporation to be used in connection with issuances
of Preferred Stock.*
4.7 Form of common stock (incorporated by reference to Exhibit 4.1 of
CenturyTel's Quarterly Report on Form 10-Q for the quarter ended
June 30, 1993).
4.8 Form of warrant agreement to purchase senior debt securities.*
4.9 Form of senior debt security warrant certificate (included in
Exhibit 4.8).
4.10 Form of warrant agreement to purchase preferred stock.*
4.11 Form of preferred stock warrant certificate (included in Exhibit
4.10).
4.12 Form of warrant agreement to purchase common stock.*
4.13 Form of common stock warrant certificate (included in Exhibit
4.12).
5 Opinion of Jones, Walker, Waechter, Poitevent, Carr<e`>re &
Den<e`>gre, L.L.P.
12 Statement regarding computation of ratio of earnings to fixed
charges.
23.1 Consent of KPMG LLP.
23.2 Consent of Jones Walker, Waechter, Poitevent, Carr<e`>re &
Den<e`>gre, L.L.P. (included in Exhibit 5).
24 Power of Attorney (included on the signature pages of this
registration statement).
25 Statement of Eligibility of Trustee on Form T-1.*
________________
* To be filed by amendment.
EXHIBIT 1
TO REGISTRATION STATEMENT
CENTURYTEL, INC.
$____________ ___% Senior Notes, Series ______, due ______
$____________ ___% Senior Notes, Series ______, due ______
UNDERWRITING AGREEMENT
___________ ___, 2000
[name]
As Representatives of
the several Underwriters
[address]
Dear Ladies and Gentlemen:
CenturyTel, Inc., a Louisiana corporation (the "Company"), proposes to
issue and sell an aggregate of $______________ principal amount of the
Company's _____% Senior Notes, Series _____, due _____ (the "Series _____
Notes") and $____________ principal amount of the Company's _____% Senior
Notes, Series _____, due _____ (the "Series _____ Notes" and, together with
the Series _____ Notes, the "Securities") to be issued pursuant to an
Indenture dated as of March 31, 1994 (the "Indenture"), between the Company
and Regions Bank (successor to First American Bank & Trust of Louisiana and
Regions Bank of Louisiana), as Trustee (the "Trustee"). The Securities
will be sold to you and to the other underwriters named in Schedule I
(collectively, the "Underwriters") for whom you are acting as
representatives (the "Representatives").
The purchase price for the Securities to be paid by the several
Underwriters shall be agreed upon by the Company and the Representatives,
acting on behalf of the several Underwriters, and such agreement shall be
set forth in a separate written instrument substantially in the form of
Exhibit A hereto (the "Price Determination Agreement"). The Price
Determination Agreement may take the form of an exchange of any standard
form of written telecommunication among the Company and the Representatives
and shall specify such applicable information as is indicated in Exhibit A
hereto. The offering of the Securities will be governed by this Agreement,
as supplemented by the Price Determination Agreement. From and after the
date of the execution and delivery of the Price Determination Agreement,
this Agreement shall be deemed to incorporate, and, unless the context
otherwise indicates, all references contained herein to "this Agreement"
and to the phrase "herein" shall be deemed to include the Price
Determination Agreement.
The Company confirms as follows its agreements with the
Representatives and the several other Underwriters.
1. AGREEMENT TO SELL AND PURCHASE.
(a) On the basis of the representations, warranties and
agreements of the parties herein contained and subject to all the terms and
conditions of this Agreement, the Company agrees to sell to each
Underwriter named below, and each Underwriter agrees, severally and not
jointly, to purchase from the Company, the principal amount of the
Securities set forth opposite the name of such Underwriter in Schedule I,
plus such additional principal amount of Securities which such Underwriter
may become obligated to purchase pursuant to Section 8 hereof, all at the
purchase price plus accrued interest, if any, from _________ __, 2000, to
the Closing Date (as hereinafter defined), to be agreed upon by the
Representatives and the Company in accordance with Section 1(b) and as set
forth in the Price Determination Agreement.
(b) The purchase price for the Securities to be paid by the
several Underwriters shall be agreed upon and set forth in the Price
Determination Agreement, which shall be dated the Execution Date, and a
Final Prospectus (as hereinafter defined) containing such price information
shall be filed pursuant to 424(b) under the Securities Act of 1933, as
amended (the "Act").
2. DELIVERY AND PAYMENT. Delivery of the Securities shall be made
to the Representatives for the accounts of the Underwriters against payment
of the purchase price by wire transfer in same day funds to the Company or
its order at the office of _______________ or at such other location as the
parties may agree. Such payment shall be made at 10:00 a.m., New York City
time, on the third business day following the date of this Agreement or at
such time on such other date, not later than five business days after the
date of this Agreement, as may be agreed upon by the Company and the
Representatives (such date is hereinafter referred to as the "Closing
Date").
Certificates evidencing the Securities shall be in temporary or
definitive form and shall be registered in such names and in such
authorized denominations as the Representatives shall request by written
notice to the Company at least two business days prior to the Closing Date.
For the purpose of expediting the checking and packaging of certificates
for the Securities, the Company agrees to make such certificates available
for inspection at least 24 hours prior to the Closing Date.
The cost of original issue tax stamps, if any, in connection with the
issuance and sale of the Securities by the Company to the respective
Underwriters shall be borne by the Company. The Company will pay and save
each Underwriter and any subsequent holder of the Securities harmless from
any and all liabilities with respect to or resulting from any failure or
delay in paying federal and state stamp and other issuance taxes, if any,
which may be payable or determined to be payable in connection with the
original issuance or sale to such Underwriter of the Securities.
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants to and covenants with each Underwriter that:
(a) The Company meets the requirements for use of Form S-3. A
registration statement (Registration No. 333-_________) on Form S-3
relating to the registration of $2 billion of Senior Debt Securities,
Preferred Stock, Common Stock and Warrants (in each case as described in
the Basic Prospectus hereinafter referred to), and the offering thereof
from time to time in accordance with Rule 415 under the Act, including a
Basic Prospectus (as hereinafter defined) and such amendments to such
registration statement as may have been required to the date of this
Agreement, has been (i) prepared by the Company under the provisions of the
Act, and the rules and regulations thereunder (collectively referred to as
the "Rules and Regulations") of the Securities and Exchange Commission (the
"Commission"); (ii) filed with the Commission; and (iii) declared effective
by the Commission. Copies of such registration statement and amendments,
if any, and of any Preliminary Prospectus (as hereinafter defined) used by
the Company have been delivered to the Representatives. The offering of
the Securities is a Delayed Offering (as hereinafter defined) and, although
the Basic Prospectus may not include all the information with respect to
the Securities and the offering thereof required by the Act and the Rules
and Regulations to be included in the Final Prospectus, such Basic
Prospectus includes all such information required by the Act and the Rules
and Regulations to be included therein as of the Effective Date (as
hereinafter defined). The Company will file the Final Prospectus in
accordance with Rule 424(b) of the Rules and Regulations. As filed, the
Final Prospectus shall include all required information with respect to the
Securities and the offering thereof and, except to the extent the
Representatives shall agree in writing to a modification, shall be in all
substantive respects in the form furnished to you prior to the Execution
Date or, to the extent not completed at the Execution Date, shall contain
such specific additional information and other changes (beyond that
contained in such Basic Prospectus and any Preliminary Prospectus) as the
Company has advised you, prior to the Execution Date.
The term "Registration Statement" means such registration
statement as amended or supplemented to the date hereof, including
incorporated documents, financial statements and all exhibits, each as
amended, and, in the event any post-effective amendment to such
registration statement becomes effective prior to the Closing Date, shall
also mean such registration statement as so amended. The term "Effective
Date" means the later of the date the Registration Statement initially
became effective, the date that any post-effective amendment or amendments
thereto became or become effective or the date of the filing of the
Company's most recent Annual Report on Form 10-K. The term "Execution
Date" means the date that this Agreement is executed and delivered by the
parties hereto. The term "Basic Prospectus" means the prospectus contained
in and forming a part of the Registration Statement as of the Effective
Date, including incorporated documents or documents deemed to be
incorporated therein. In the event that (i) the Basic Prospectus shall
have been amended, revised or supplemented (but excluding supplements to
the Basic Prospectus relating solely to Preferred Stock, Common Stock,
Warrants or Senior Debt Securities other than the Securities) prior to the
Effective Date (including without limitation by the Preliminary Prospectus)
or (ii) the Company shall have filed documents pursuant to Section 13, 14
or 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), after the time the Registration Statement became effective and prior
to the Effective Date (but excluding documents incorporated therein by
reference relating solely to Preferred Stock, Common Stock, Warrants or
Senior Debt Securities other than the Securities) which are deemed to be
incorporated by reference in the Basic Prospectus pursuant to Item 12 of
Form S-3, the term "Basic Prospectus" as used herein shall also mean such
prospectus as so amended, revised or supplemented and reflecting such
incorporation by reference. The term "Preliminary Prospectus" means any
preliminary prospectus (or any supplement thereto) which describes the
Securities and the offering thereof and is used prior to the filing of the
Final Prospectus. The term "Final Prospectus" means the prospectus
supplement relating to the Securities as first filed with the Commission
pursuant to Rule 424(b) of the Rules and Regulations after the Execution
Date, together with the Basic Prospectus. The term "Delayed Offering"
means an offering of securities pursuant to Rule 415 under the Rules and
Regulations which does not commence promptly after the effective date of a
registration statement.
(b) On the Effective Date, the Registration Statement did and
when the Final Prospectus is first filed with the Commission pursuant to
Rule 424(b), the Final Prospectus (and any supplement thereto), including
the financial statements included or incorporated by reference in the Final
Prospectus, will comply in all material respects with the applicable
provisions of the Act, the Rules and Regulations, the Exchange Act, the
rules and regulations thereunder (the "Exchange Act Rules and
Regulations"), the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act") and the rules and regulations thereunder (the "Trust
Indenture Act Rules and Regulations") and will contain all information
required to be included therein in accordance with the Act, the Rules and
Regulations, the Exchange Act and the Exchange Act Rules and Regulations.
On the Effective Date, the Registration Statement did not contain any
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading. At the date the Final Prospectus (together with any
supplement thereto) is first filed with the Commission pursuant to Rule
424(b) and at the Closing Date, the Final Prospectus did not or will not
contain any untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. The foregoing
representations and warranties in this Section 3(b) do not apply to any
statements or omissions made in reliance on and in conformity with
information furnished in writing to the Company by the Representatives
specifically for inclusion in the Registration Statement or Final
Prospectus (or any supplement thereto). On the Effective Date, the date
the Final Prospectus is first filed with the Commission pursuant to Rule
424(b), and at all subsequent times to and including the Closing Date, the
Indenture did or will comply with all applicable provisions of the Trust
Indenture Act and the Trust Indenture Act Rules and Regulations.
(c) The documents which are incorporated by reference in the
Basic Prospectus, any Preliminary Prospectus and the Final Prospectus or
from which information is so incorporated by reference, when they became
effective or were filed with the Commission, as the case may be, complied
in all material respects with the requirements of the Act, the Rules and
Regulations, the Exchange Act or the Exchange Act Rules and Regulations, as
applicable; and any documents so filed and incorporated by reference
subsequent to the Effective Date shall, when they are filed with the
Commission, conform in all material respects with the requirements of the
Act, the Rules and Regulations, the Exchange Act or the Exchange Act Rules
and Regulations, as applicable.
(d) Each of the Company and each of its subsidiaries listed on
Schedule II hereto (the "Subsidiaries") is, and at the Closing Date will
be, a corporation or limited liability company duly organized, validly
existing and in good standing under the laws of its jurisdiction of
organization. Each of the Company and each of the Subsidiaries has, and at
the Closing Date will have, full power and authority to conduct all the
activities conducted by it, to own or lease all the assets owned or leased
by it and to conduct its business as described in the Registration
Statement and the Final Prospectus. Each of the Company and each of the
Subsidiaries is, and at the Closing Date will be, duly licensed or
qualified to do business and in good standing as a foreign corporation or
limited liability company in all jurisdictions in which the nature of the
activities conducted by it or the character of the assets owned or leased
by it makes such licensing or qualification necessary except where the
failure to be so qualified or licensed would not have a material adverse
effect on the Company and its subsidiaries, taken as a whole. For purposes
of this Agreement, (i) "subsidiaries" shall mean (a) the Company's directly
and indirectly majority-owned corporate subsidiaries, (b) the Company's
directly and indirectly majority-owned limited liability companies and (c)
the partnerships, joint ventures and other entities of which the Company or
any subsidiary is the majority owner and managing general partner and (ii)
the phrase "Company and its subsidiaries, taken as a whole" shall be
construed to include minority-owned partnerships in which a corporate
subsidiary of the Company is a limited partner, but only to the extent of
the Company's equity interests in such partnerships. Complete and correct
copies of the certificate of incorporation, by-laws or other organizational
documents of the Company and each of the Subsidiaries and all amendments
thereto have been made available to the Representatives, and no changes
therein will be made subsequent to the Execution Date and prior to the
Closing Date.
(e) The Securities have been duly and validly authorized and,
when authenticated by the Trustee and issued, delivered and sold in
accordance with this Agreement and the Indenture, will have been duly and
validly executed, authenticated, issued and delivered and will constitute
valid and binding obligations of the Company, enforceable against the
Company in accordance with their respective terms and entitled to the
benefits provided by the Indenture except (i) that such enforcement may be
subject to bankruptcy, insolvency, reorganization, fraudulent conveyance,
moratorium or other similar laws, now or hereafter in effect, relating to
creditors' rights generally and (ii) that the remedy of specific
performance and injunctive and other forms of equitable relief may be
subject to equitable defenses and to the discretion of the court before
which any proceeding therefor may be brought.
(f) The description of the Securities in the Registration
Statement and the Final Prospectus is, and at the Closing Date will be,
complete and accurate in all material respects and, insofar as such
description contains statements constituting a summary of the legal matters
or documents referred to therein, such description fairly summarizes the
information referred to therein.
(g) The financial statements and schedules included or
incorporated by reference in the Registration Statement or the Final
Prospectus present fairly the consolidated financial condition of the
Company as of the respective dates thereof and the consolidated results of
operations and cash flows of the Company for the respective periods covered
thereby, all in conformity with generally accepted accounting principles
applied on a consistent basis throughout the entire period involved, except
as otherwise disclosed in the Registration Statement or the Final
Prospectus. The selected consolidated financial data included in the
Registration Statement or the Final Prospectus present fairly the
information shown therein and have been compiled on a basis consistent with
that of the audited consolidated financial statements of the Company
included in the Registration Statement or the Final Prospectus. [Any pro
forma financial data included or incorporated by reference in the
Registration Statement or Final Prospectus comply in all material respects
with Article XI of Regulation S-X under the Act.] No other financial
statements or schedules of the Company are required by the Act, the Rules
and Regulations or the Exchange Act to be included in or incorporated by
reference into the Registration Statement or the Final Prospectus. KPMG
LLP ("KPMG"), who have reported on certain financial statements and
schedules of the Company, are independent accountants with respect to the
Company as required by the Act and the Rules and Regulations.
(h) Subsequent to the respective dates as of which information
is given in the Registration Statement and the Final Prospectus and prior
to the Closing Date, except as set forth in or contemplated by the
Registration Statement and the Final Prospectus, (i) there has not been and
will not have been any material change in the capitalization of the
Company, (ii) there has not been and will not have been any material
adverse change in the business, properties, business prospects, condition
(financial or otherwise) or results of operations of the Company and its
subsidiaries, taken as a whole, arising for any reason whatsoever, (iii)
except in the ordinary course of business, neither the Company nor any of
the Subsidiaries has incurred nor will it voluntarily incur any liabilities
or obligations, direct or contingent, that are material to the Company and
its subsidiaries, taken as a whole, and (iv) the Company has not and will
not have paid or declared any dividends or other distributions of any kind
on any class of its capital stock except cash dividends paid in the
ordinary course of business and consistent with past practice.
(i) The Company is not an "investment company" or an "affiliated
person" of, or "promoter" or "principal underwriter" for, an "investment
company," as such terms are defined in the Investment Company Act of 1940,
as amended.
(j) Except as set forth in the Registration Statement and the
Final Prospectus, there are no actions, suits or proceedings pending or, to
the best of the Company's knowledge, threatened against or affecting the
Company or any of its subsidiaries or any of their respective officers in
their capacity as such, before or by any federal or state court,
commission, regulatory body, administrative agency or other governmental
body, domestic or foreign, that is likely to materially and adversely
affect the business, properties, business prospects, condition (financial
or otherwise) or results of operations of the Company and its subsidiaries,
taken as a whole. All actions, suits or proceedings now pending against
the Company or any of its subsidiaries, or any of their respective officers
in their capacities as such, before any Federal or state court, commission,
regulatory body, administrative agency or other governmental body, domestic
or foreign, if decided or resolved in a manner unfavorable to the Company
or any of its subsidiaries, would not be likely to, singly or in the
aggregate, materially and adversely affect the business, properties,
condition (financial or otherwise) or results of operations of the Company
and its subsidiaries, taken as a whole.
(k) The Company and each of the Subsidiaries has, and at the
Closing Date, will have (i) such franchises, certificates, authorities or
permits issued by the appropriate state, federal or foreign regulatory
agencies or bodies necessary to conduct the business now operated by them,
other than those the absence of which would not be likely to have a
materially adverse effect on the business, properties, business prospects,
condition (financial or otherwise) or results of operations of the Company
and its subsidiaries, taken as a whole, and neither the Company nor any of
the Subsidiaries has received any notice of proceedings relating to the
revocation or modification of any such franchise, certificate, authority or
permit which, singly or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would be likely to materially and adversely
affect the business, properties, business prospects, condition (financial
or otherwise) or results of operations of the Company and its subsidiaries,
taken as a whole, (ii) complied in all material respects with all laws,
statutes, ordinances, rules, regulations, orders or decrees of any court,
governmental body or regulatory authority or administrative agency having
jurisdiction over the Company or any Subsidiary or any of the property or
assets of the Company or any Subsidiary (including, without limitation, any
such laws, statutes, ordinances, rules regulations, orders or decrees with
respect to environmental protection or the release, handling, treatment,
storage or disposal of hazardous substances or toxic wastes), the failure
to comply with which would be likely to materially adversely affect the
business, properties, business prospects, condition (financial or
otherwise) or results of operations of the Company and its subsidiaries,
taken as a whole, and (iii) performed in all material respects all of its
obligations required to be performed by it under any material contract or
other instrument to which it is a party or by which its property is bound
or affected, and is not, and at the Closing Date, will not be, in default
under any such contract or instrument the effect of which would be likely
to materially adversely affect the business, properties, business
prospects, condition (financial or otherwise) or results of operations of
the Company and its subsidiaries, taken as a whole. To the best knowledge
of the Company, no other party under any material contract or other
instrument to which it or any Subsidiary is a party is in default in any
respect thereunder, except for any such defaults (alone or collectively)
that would not be likely to have a material adverse effect on the Company
and its subsidiaries, taken as a whole; PROVIDED that it is understood and
agreed that neither the Company nor any Subsidiary has undertaken any
special investigation to determine compliance by such other parties under
any such contract or other instrument. The Company is not, and at the
Closing Date, will not be, in violation of any provision of its articles of
incorporation or by-laws or in default in any material respect under any
agreement or instrument evidencing indebtedness for borrowed money. The
Subsidiaries are not, and at the Closing Date, will not be, in violation of
any material provision of their respective articles of incorporation or by-
laws (or comparable organizational documents) or in default under any
agreement or instrument evidencing indebtedness for borrowed money as a
result of the failure to make one or more payments in excess of $5 million
in the aggregate that are due and owed thereunder.
(l) No consent, approval, authorization or order of, or any
filing, registration, qualification or declaration with, any court or
governmental agency or body is required for (i) the execution, delivery or
performance of this Agreement, the Securities or the Indenture by the
Company, (ii) the authorization, offer, issuance, transfer, sale or
delivery of the Securities by the Company in accordance herewith or (iii)
the consummation by the Company of the transactions on its part
contemplated herein and by the Indenture, except such as may have been
obtained under the Act, the Rules and Regulations, the Trust Indenture Act
or the Trust Indenture Act Rules and Regulations and such as may be
required under foreign or state securities or Blue Sky laws or the by-laws
and rules of the National Association of Securities Dealers, Inc. (the
"NASD") in connection with the purchase and distribution of the Securities
by the Underwriters.
(m) The Company has full corporate power and authority to enter
into this Agreement. This Agreement has been duly authorized, executed and
delivered by the Company and, when executed and delivered by the
Representatives, constitutes a valid and binding agreement of the Company
and is enforceable against the Company in accordance with the terms hereof,
except (i) that such enforcement may be subject to bankruptcy, insolvency,
reorganization, fraudulent conveyance, moratorium or other similar laws,
now or hereafter in effect, relating to creditors' rights generally, (ii)
that the remedy of specific performance and injunctive and other forms of
equitable relief may be subject to equitable defenses and to the discretion
of the court before which any proceeding therefor may be brought and (iii)
rights to indemnity and contribution hereunder may be limited by federal or
state laws relating to securities or the policies underlying such laws.
The Indenture has been duly authorized and, constitutes a valid and binding
agreement of the Company and is enforceable against the Company in
accordance with its terms, except (i) that such enforcement may be subject
to bankruptcy, insolvency, reorganization, moratorium or other similar
laws, now or hereafter in effect, relating to creditors' rights generally
and (ii) that the remedy of specific performance and injunctive and other
forms of equitable relief may be subject to equitable defenses and to the
discretion of the court before which any proceeding therefor may be
brought. The execution, delivery and performance by the Company of this
Agreement, the Indenture and the Securities and the consummation of the
transactions contemplated hereby and thereby will not result in the
creation or imposition of any lien, charge or encumbrance upon any of the
assets of the Company or any of the Subsidiaries pursuant to the terms or
provisions of, or, except as disclosed in the Registration Statement or the
Final Prospectus, result in a breach or violation of any of the terms or
provisions of, or constitute a default under, or give any other party a
right to terminate any of its obligations under, or result in the
acceleration of any obligation under, the articles of incorporation or by-
laws (or comparable instruments) of the Company or any of the Subsidiaries,
any indenture, mortgage, deed of trust, voting trust agreement, loan
agreement, bond, debenture, note agreement or other evidence of
indebtedness, lease, contract or other agreement or instrument to which the
Company or any of the Subsidiaries is a party or by which the Company or
any of the Subsidiaries or any of their respective properties is or are
bound or affected, or violate or conflict with any franchise or any
judgment, ruling, decree, order, statute, rule or regulation of any court
or other governmental agency or body applicable to the business or
properties of the Company or any of the Subsidiaries.
(n) The Company and each of the Subsidiaries has good and
marketable title to all franchises, properties and assets owned by it,
which are material to the business or operations of the Company and its
subsidiaries, taken as a whole, free and clear of all liens, charges,
encumbrances or restrictions, except such as are described in the Final
Prospectus. The Company and each of the Subsidiaries has valid, subsisting
and enforceable leases for the properties leased by it, with such
exceptions as would not materially interfere with the business or
operations of the Company and it subsidiaries, taken as a whole.
(o) All existing material contracts described in the Final
Prospectus to which the Company or any of the Subsidiaries is a party have
been duly authorized, executed and delivered by the Company or such
Subsidiary, constitute valid and binding agreements of the Company or such
Subsidiary and are enforceable against the Company or such Subsidiary in
accordance with the terms thereof, except (i) that such enforcement may be
subject to bankruptcy, insolvency, reorganization, fraudulent conveyance,
moratorium or other similar laws, now or hereafter in effect, relating to
creditors' rights generally and (ii) that the remedy of specific
performance and injunctive and other forms of equitable relief may be
subject to equitable defenses and to the discretion of the court before
which any proceeding therefor may be brought.
(p) No statement, representation, warranty or covenant made by
the Company in this Agreement or the Indenture or made in any certificate
or document required by this Agreement to be delivered to the
Representatives was or will be, when made, inaccurate, untrue or incorrect
in any material respect.
(q) No holder of securities of the Company has rights to the
registration of any securities of the Company because of the filing of the
Registration Statement.
4. AGREEMENTS OF THE COMPANY. The Company agrees with each of the
several Underwriters as follows:
(a) The Company will not, from the Execution Date until the end
of such period as the Final Prospectus is required by law to be delivered
in connection with sales of the Securities by an Underwriter or dealer,
file any amendment or supplement to the Registration Statement or the Final
Prospectus, unless a draft thereof shall first have been submitted to the
Representatives within a reasonable period of time prior to the filing
thereof and the Representatives shall not have objected thereto in good
faith.
(b) The Company will notify the Representatives promptly, and
will confirm such advice in writing, (1) when any post-effective amendment
to the Registration Statement becomes effective, (2) of any request by the
Commission for amendments or supplements to the Registration Statement or
the Final Prospectus or for additional information, (3) of the issuance by
the Commission of any stop order suspending the effectiveness of the
Registration Statement or the initiation of any proceedings for that
purpose or the threat thereof, (4) of the happening of any event during the
period mentioned in the second sentence of Section 4(e) that in the
judgment of the Company requires the Company to file an amendment or
supplement to the Registration Statement and (5) of receipt by the Company,
or any representatives or attorney of the Company, of any other
communication from the Commission relating to the Registration Statement,
the Basic Prospectus, any Preliminary Prospectus or the Final Prospectus or
the offering of the Securities. If at any time the Commission shall issue
any order suspending the effectiveness of the Registration Statement, the
Company will make every reasonable effort to obtain the withdrawal of such
order at the earliest possible moment.
(c) The Company will furnish to the Representatives, without
charge, one complete copy of the Registration Statement and of any post-
effective amendment thereto, including financial statements and schedules,
and all exhibits thereto (including any documents filed under the Exchange
Act and deemed to be incorporated by reference into the Final Prospectus),
and will upon request furnish to the Representatives, without charge, for
transmittal to each of the other Underwriters, additional copies of the
Registration Statement and any post-effective amendment thereto, including
financial statements and schedules but without exhibits and documents
incorporated by reference therein.
(d) The Company will comply with all the provisions of any
undertakings contained in the Registration Statement.
(e) On the Effective Date, and thereafter from time to time, the
Company will deliver to each of the Underwriters, without charge, as many
copies of the Final Prospectus or any supplement thereto, as the
Representatives may reasonably request. The Company consents to the use of
any Preliminary Prospectus and the Final Prospectus or any amendment or
supplement thereto by the several Underwriters and by all dealers to whom
the Securities may be sold, both in connection with the offering or sale of
the Securities and for any period of time thereafter during which a
prospectus is required by law to be delivered in connection therewith. If
during such period of time, any event shall occur which in the judgment of
the Company or counsel to the Underwriters should be set forth in the Final
Prospectus in order to make any statement therein, in the light of the
circumstances under which it was made when delivered, not misleading, or if
it is necessary to supplement the Final Prospectus to comply with law, the
Company will forthwith prepare and duly file with the Commission an
appropriate supplement thereto, and will deliver to each of the
Underwriters, without charge, such number of copies thereof as the
Representatives may reasonably request. The Company shall not file any
document under the Exchange Act before the termination of the offering of
the Securities by the Underwriters if such document would be deemed to be
incorporated by reference into any Preliminary Prospectus or the Final
Prospectus, unless a draft thereof shall first have been submitted to the
Representatives within a reasonable period of time prior to the filing
thereof and the Representatives shall not have objected thereto in good
faith.
(f) Prior to any public offering of the Securities by the
Underwriters, the Company will cooperate with the Representatives and
counsel to the Underwriters in connection with the registration or
qualification of the Securities for offer and sale under the securities or
Blue Sky laws of such jurisdictions as the Representatives may request;
provided, that in no event shall the Company be obligated to qualify to do
business in any jurisdiction where it is not now so qualified or to take
any action which would subject it to general service of process in any
jurisdiction where it is not now so subject.
(g) During the period of five years commencing on the Effective
Date, the Company will furnish to the Representatives and each other
Underwriter who may so request copies of such financial statements and
other periodic and special reports as the Company may from time to time
distribute generally to the holders of any class of its capital stock, and
will furnish to the Representatives and each other Underwriter who may so
request a copy of each annual or other report it shall be required to file
with the Commission.
(h) The Company will make generally available to holders of its
securities as soon as may be practicable but in no event later than the
last day of the fifteenth full calendar month following the calendar
quarter in which the Execution Date falls, an earning statement (which need
not be audited but shall be in reasonable detail) for a period of 12 months
ended commencing after the effective date, within the meaning of and
satisfying the provisions of Section 11(a) of the Act (including Rule 158
of the Rules and Regulations).
(i) Whether or not the transactions contemplated by this
Agreement are consummated or this Agreement is terminated, the Company will
pay, or reimburse if paid by the Representatives, all costs and expenses
incident to the performance of the obligations of the Company under this
Agreement, including but not limited to costs and expenses of or relating
to (1) the preparation, printing and filing of the Registration Statement
and exhibits thereto, the Basic Prospectus any Preliminary Prospectus, the
Final Prospectus and any amendment or supplement to the Registration
Statement or the Final Prospectus, (2) the preparation and delivery of
certificates representing the Securities, (3) the printing of this
Agreement, any Agreement Among Underwriters, any Dealer Agreements and any
Underwriters' Questionnaire, (4) furnishing (including costs of shipping
and mailing) such copies of the Registration Statement, the Basic
Prospectus, any Preliminary Prospectus and the Final Prospectus, and all
amendments and supplements thereto, as may be requested for use in
connection with the offering and sale of the Securities by the Underwriters
or by dealers to whom Securities may be sold, (5) any filings required to
be made by the Underwriters with the NASD, and the fees, disbursements and
other charges of counsel for the Underwriters in connection therewith, (6)
the registration or qualification of the Securities for offer and sale
under the securities or Blue Sky laws of such jurisdictions designated
pursuant to Section 4(f), including the fees, disbursements and other
charges of counsel to the Underwriters in connection therewith, and the
preparation and printing of preliminary, supplemental and final Blue Sky
memoranda, (7) counsel to the Company, (8) the transfer agent and registrar
for the Securities, (9) the rating of the Securities by one or more rating
agencies and (10) the Trustee and any agent of the Trustee and the fees,
disbursements and other charges of counsel for the Trustee in connection
with the Indenture and the Securities.
(j) If this Agreement shall be terminated by the Company
pursuant to any of the provisions hereof (other than pursuant to Section 8)
or if for any reason the Company shall be unable to perform its obligations
hereunder, the Company will reimburse the several Underwriters for all out-
of-pocket expenses (including the fees, disbursements and other charges of
counsel to the Underwriters) reasonably incurred by them in connection
herewith.
(k) The Company will not at any time, directly or indirectly,
take any action intended, or which might reasonably be expected, to cause
or result in, or which will constitute stabilization of the price of the
Securities to facilitate the sale or resale of any of the Securities.
(l) The Company will apply the net proceeds from the offering
and sale of the Securities in the manner set forth in the Final Prospectus
under "Use of Proceeds".
(m) Until sixty (60) days from the Execution Date, the Company
will not, without the consent of the Representatives, offer, sell or
contract to sell, or otherwise dispose of, by public offering, or announce
the public offering of, any other debt securities of the Company other than
the Securities.
5. CONDITIONS OF OBLIGATIONS OF THE UNDERWRITERS. In addition to the
execution and delivery of the Price Determination Agreement, the
obligations of each Underwriter hereunder are subject to the following
conditions:
(a) (i) No stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for that
purpose shall be pending or threatened by the Commission, (ii) no order
suspending the effectiveness of the Registration Statement or the
qualification or registration of the Securities under the securities or
Blue Sky laws of any jurisdiction shall be in effect and no proceeding for
such purpose shall be pending before or threatened or contemplated by the
Commission or the authorities of any such jurisdiction, (iii) any request
for additional information on the part of the staff of the Commission or
any such authorities with respect to the offering of the Securities shall
have been complied with to the satisfaction of the staff of the Commission
or such authorities and (iv) after the Execution Date no amendment or
supplement to the Registration Statement or the Final Prospectus shall have
been filed unless a copy thereof was first submitted to the Representatives
and the Representatives did not object thereto in good faith, and the
Representatives shall have received certificates, dated the Closing Date
and signed on behalf of the Company by the Chief Executive Officer or the
Chairman of the Board of Directors of the Company and the Chief Financial
Officer of the Company (who may, as to proceedings threatened, rely upon
the best of their information and belief), to the effect of clauses (i),
(ii) and (iii).
(b) Since the respective dates as of which information is given
in the Registration Statement and the Final Prospectus (i) there shall not
have been a material adverse change in the general affairs, business,
business prospects, properties, management, condition (financial or
otherwise) or results of operations of the Company and its subsidiaries,
taken as a whole, whether or not arising from transactions in the ordinary
course of business, in each case other than as set forth in or contemplated
by the Registration Statement and the Final Prospectus and (ii) neither the
Company nor any of the Subsidiaries shall have sustained any loss or
interference with its business or properties from fire, explosion, flood or
other casualty, whether or not covered by insurance, or from any labor
dispute or any court or legislative or other governmental action, order or
decree, which is not set forth in the Registration Statement and the Final
Prospectus, and which in each case in clause (ii) is material to the
Company and its subsidiaries, taken as a whole, if in the judgment of the
Representatives any such development makes it impracticable or inadvisable
to consummate the sale and delivery of the Securities by the Underwriters
in accordance with the terms hereof and thereof.
(c) Since the respective dates as of which information is given
in the Registration Statement and the Final Prospectus, there shall have
been no litigation or other proceeding instituted against the Company or
any of the Subsidiaries or any of their respective officers or directors in
their capacities as such, before or by any federal, state or local court,
commission, regulatory body, administrative agency or other governmental
body, domestic or foreign, in which litigation or proceeding an unfavorable
ruling, decision or finding would materially and adversely affect the
business, properties, business prospects, condition (financial or
otherwise) or results of operations of the Company and its subsidiaries,
taken as a whole.
(d) Each of the representations and warranties of the Company
contained herein shall be true and correct in all material respects at the
Closing Date and all covenants and agreements herein contained to be
performed on the part of the Company and all conditions herein contained to
be fulfilled or complied with by the Company at or prior to the Closing
Date shall have been duly performed, fulfilled or complied with.
(e) On the Closing Date, the Representatives shall have received
an opinion, dated the Closing Date, and satisfactory in form and substance
to counsel for the Underwriters, from Harvey P. Perry, Esq., General
Counsel of the Company, and from Jones, Walker, Waechter, Poitevent,
Carr<e`>re & Den<e`>gre, L.L.P., special counsel to the Company, to the
effects set forth in Exhibit B and Exhibit C hereto, respectively.
(f) On the Closing Date, the Representatives shall have received
an opinion, dated the Closing Date, from Winthrop, Stimson, Putnam &
Roberts, counsel to the Underwriters, with respect to the Registration
Statement, the Final Prospectus and this Agreement, which opinion shall be
satisfactory in all respects to the Representatives. In giving such
opinion, such counsel may rely, as to all matters governed by the laws of
the State of Louisiana, upon the opinion of Jones, Walker, Waechter,
Poitevent, Carr<e`>re & Den<e`>gre, L.L.P. Such counsel may also state
that, insofar as such opinion involves factual matters, they have relied,
to the extent they deem proper, upon certificates of officers of the
Company and its subsidiaries, and certificates of public officials.
(g) Concurrently with the execution and delivery of this
Agreement, KPMG shall have furnished to the Representatives a letter, dated
the date of this Agreement, addressed to the Representatives and in form
and substance satisfactory to the Representatives, confirming that they are
independent accountants with respect to the Company as required by the Act
and the Rules and Regulations and concerning the financial and other
statistical and numerical information contained or incorporated by
reference in the Registration Statement. At the Closing Date, KPMG shall
have furnished to the Representatives a letter, dated the date of the
Closing Date, which shall confirm, on the basis of a review in accordance
with the procedures set forth in the letter from KPMG, that nothing has
come to their attention during the period from the date of their letter
referred to in the prior sentence to a date (specified in the letter) not
more than five days prior to the Closing Date which would require any
change in their letter dated the Execution Date if it were required to be
dated and delivered at the Closing Date.
(h) At the Closing Date, there shall be furnished to the
Representatives a certificate, dated the date of its delivery, signed on
behalf of the Company by each of the Chief Executive Officer and the Chief
Financial Officer of the Company, in form and substance satisfactory to the
Representatives, to the effect that:
(i) Each signer of such certificate has carefully examined
the Registration Statement and the Final Prospectus and (A) the
Registration Statement is true and correct in all material respects
and does not omit to state a material fact required to be stated
therein or necessary in order to make the statements therein not
untrue or misleading, (B) the Final Prospectus is true and correct in
all material respects and does not omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not untrue or misleading (it
being understood that to the extent a statement in the Final
Prospectus, including any documents deemed to be incorporated by
reference therein, refers to and speaks as of a specific date, each
signer of such certificate only represents with respect to such
statement that it was true and correct in all material respects as of
such date), and (C) since the Execution Date, no event has occurred as
a result of which it is necessary to supplement the Final Prospectus
in order to make the statements therein, in light of the circumstances
under which they were made, not untrue or misleading in any material
respect and there has been no document required to be filed under the
Exchange Act and the Exchange Act Rules and Regulations that upon such
filing would be deemed to be incorporated by reference into the Final
Prospectus that has not been so filed.
(ii) Each of the representations and warranties of the
Company contained in this Agreement were, when originally made, and
are true and correct in all material respects.
(iii) Each of the covenants required herein to be performed
by the Company on or prior to the Closing Date has been duly, timely
and fully performed and each condition herein required to be complied
with by the Company on or prior to the Closing Date has been duly,
timely and fully complied with.
(i) The Securities shall be qualified for sale in such states as
the Representatives may reasonably request, each such qualification shall
be in effect and not subject to any stop order or other proceeding on the
Closing Date.
(j) The Company shall have furnished to the Representatives such
certificates, in addition to those specifically mentioned herein, as the
Representatives may have reasonably requested as to the accuracy and
completeness at the Closing Date of any statement in the Registration
Statement or the Final Prospectus or any documents filed under the Exchange
Act and deemed to be incorporated by reference into the Final Prospectus,
as to the accuracy at the Closing Date of the representations and
warranties of the Company herein, as to the performance by the Company of
its obligations hereunder, or as to the fulfillment of the conditions
concurrent and precedent to the obligations hereunder of the
Representatives.
6. INDEMNIFICATION.
(a) The Company will indemnify and hold harmless each
Underwriter, the directors, officers, employees and agents of each
Underwriter and each person, if any, who controls each Underwriter within
the meaning of Section 15 of the Act or Section 20 of the Exchange Act from
and against any and all losses, claims, liabilities, expenses and damages
(including any and all investigative, legal and other expenses reasonably
incurred in connection with, and any amount paid in settlement of, any
action, suit or proceeding or any claim asserted), to which they, or any of
them, may become subject under the Exchange Act or other federal or state
statutory law or regulation, at common law or otherwise, insofar as such
losses, claims, liabilities, expenses or damages arise out of or are based
on any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement, the Basic Prospectus, any
Preliminary Prospectus or the Final Prospectus or any amendment or
supplement thereto or in any documents filed under the Exchange Act and
deemed to be incorporated by reference into the Final Prospectus, or the
omission or alleged omission to state in (i) the Registration Statement,
any amendment or supplement thereto a material fact required to be stated
in it or necessary to make the statements in it not misleading or (ii) the
Basic Prospectus, any Preliminary Prospectus or the Final Prospectus a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading,
provided that the Company will not be liable to the extent that such loss,
claim, liability, expense or damage arises from the sale of the Securities
in the public offering to any person by an Underwriter and is based on an
untrue statement or omission or alleged untrue statement or omission made
in reliance on and in conformity with information relating to any
Underwriter furnished in writing to the Company by the Representatives on
behalf of any Underwriter expressly for inclusion in the Registration
Statement, the Basic Prospectus, any Preliminary Prospectus or the Final
Prospectus and provided further, that the Company shall not be liable in
any such case under the indemnity agreement in this Section 6(a) with
respect to any Preliminary Prospectus or Final Prospectus, to the extent
that any such loss, claim, liability, expense or damage results from the
fact that the Underwriter sold Securities to a person to whom there was not
sent or given, at or prior to the written confirmation of such sale, a copy
of the Final Prospectus or of the Final Prospectus as then amended or
supplemented in any case where such delivery is required by the Act if the
Company has previously furnished copies thereof to the Underwriter and the
loss, claim, liability, expense or damage of the Underwriter, the
directors, officers, employees or agents of the Underwriter or any person
who controls the Underwriter results from an untrue statement, alleged
untrue statement, omission or alleged omission of a material fact contained
in the Preliminary Prospectus which was corrected in the Final Prospectus
(or the Final Prospectus as amended or supplemented). This indemnity
agreement is in addition to any liability that the Company might otherwise
have.
(b) Each Underwriter will indemnify and hold harmless the
Company and its officers, employees and agents and each person, if any, who
controls the Company within the meaning of Section 15 of the Act or Section
20 of the Exchange Act, each director of the Company and each officer of
the Company who signs the Registration Statement to the same extent as the
foregoing indemnity from the Company to each Underwriter, but only insofar
as losses, claims, liabilities, expenses or damages arise out of or are
based on any untrue statement or omission or alleged untrue statement or
omission made in reliance on and in conformity with information relating to
such Underwriter furnished in writing to the Company by the Representatives
on behalf of such Underwriter expressly for use in the Registration
Statement, the Basic Prospectus, any Preliminary Prospectus or the Final
Prospectus. This indemnity is in addition to any liability that each
Underwriter might otherwise have.
(c) Any party that proposes to assert the right to be
indemnified under this Section 6 will, promptly after receipt of notice of
commencement of any action against such party in respect of which a claim
is to be made against an indemnifying party or parties under this Section
6, notify each such indemnifying party of the commencement of such action,
enclosing a copy of all papers served, but the omission so to notify such
indemnifying party will not relieve it from any liability that it may have
to any indemnified party under the foregoing provisions of this Section 6
unless, and only to the extent that, such omission results in the
forfeiture of substantive rights or defenses by the indemnifying party. If
any such action is brought against any indemnified party and it notifies
the indemnifying party of its commencement, the indemnifying party will be
entitled to participate in and, to the extent that it elects by delivering
written notice to the indemnified party promptly after receiving notice of
the commencement of the action from the indemnified party, jointly with any
other indemnifying party similarly notified, to assume the defense of the
action, with counsel satisfactory to the indemnified party, and after
notice from the indemnifying party to the indemnified party of its election
to assume the defense, the indemnifying party will not be liable to the
indemnified party for any legal or other expenses except as provided below
and except for the reasonable costs of investigation subsequently incurred
by the indemnified party in connection with the defense. The indemnified
party will have the right to employ its own counsel in any such action, but
the fees, expenses and other charges of such counsel will be at the expense
of such indemnified party unless (1) the employment of counsel by the
indemnified party has been authorized in writing by the indemnifying party,
(2) the indemnified party has reasonably concluded (based on advice of
counsel) that there may be legal defenses available to it or other
indemnified parties that are different from or in addition to those
available to the indemnifying party, (3) a conflict or potential conflict
exists (based on advice of counsel to the indemnified party) between the
indemnified party and the indemnifying party (in which case the
indemnifying party will not have the right to direct the defense of such
action on behalf of the indemnified party) or (4) the indemnifying party
has not in fact employed counsel to assume the defense of such action
within a reasonable time after receiving notice of the commencement of the
action, in each of which cases the reasonable fees, disbursements and other
charges of counsel will be at the expense of the indemnifying party or
parties. It is understood that the indemnifying party or parties shall
not, in connection with any proceeding or related proceedings in the same
jurisdiction, be liable for the reasonable fees, disbursements and other
charges of more than one separate firm (plus any local counsel retained by
you in your reasonable judgment) admitted to practice in such jurisdiction
at any one time for all such indemnified party or parties. All such fees,
disbursements and other charges will be reimbursed by the indemnifying
party promptly as they are incurred. An indemnifying party will not be
liable for any settlement of any action or claim effected without its
written consent (which consent will not be unreasonably withheld).
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in the foregoing
paragraphs of this Section 6 is applicable in accordance with its terms but
for any reason is held to be unavailable from the Company or the
Underwriters, the Company and the Underwriters will contribute to the total
losses, claims, liabilities, expenses and damages (including any
investigative, legal and other expenses reasonably incurred in connection
with, and any amount paid in settlement of, any action, suit or proceeding
or any claim asserted, but after deducting any contribution received by the
Company from persons other than the Underwriters, such as persons who
control the Company within the meaning of the Act, officers of the Company
who signed the Registration Statement and directors of the Company, who
also may be liable for contribution) to which the Company and any one or
more of the Underwriters may be subject in such proportion as shall be
appropriate to reflect the relative benefits received by the Company on the
one hand and the Underwriters on the other. The relative benefits received
by the Company on the one hand and the Underwriters on the other shall be
deemed to be in the same proportion as the total net proceeds from the
offering (before deducting expenses) received by the Company bear to the
total underwriting discounts and commissions received by the Underwriters,
in each case as set forth in the table on the cover page of the Final
Prospectus. If, but only if, the allocation provided by the foregoing
sentence is not permitted by applicable law, the allocation of contribution
shall be made in such proportion as is appropriate to reflect not only the
relative benefits referred to in the foregoing sentence but also the
relative fault of the Company, on the one hand, and the Underwriters, on
the other, with respect to the statements or omissions which resulted in
such loss, claim, liability, expense or damage, or action in respect
thereof, as well as any other relevant equitable considerations with
respect to such offering. Such relative fault shall be determined by
reference to whether the untrue or alleged untrue statement of a material
fact or omission or alleged omission to state a material fact relates to
information supplied by the Company or the Representatives on behalf of the
Underwriters, the intent of the parties and their relative knowledge,
access to information and opportunity to correct or prevent such statement
or omission. The Company and the Underwriters agree that it would not be
just and equitable if contributions pursuant to this Section 6(d) were to
be determined by pro rata allocation (even if the Underwriters were treated
as one entity for such purpose) or by any other method of allocation which
does not take into account the equitable considerations referred to herein.
The amount paid or payable by an indemnified party as a result of the loss,
claim, liability, expense or damage, or action in respect thereof, referred
to above in this Section 6(d) shall be deemed to include, for purpose of
this Section 6(d), any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Section 6(d), no
Underwriter shall be required to contribute any amount in excess of the
underwriting discounts received by it, and no person found guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Act) will be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. The Underwriters' obligations to
contribute as provided in this Section 6(d) are several in proportion to
their respective underwriting obligations and not joint. For purposes of
this Section 6(d), any person who controls a party to this Agreement within
the meaning of the Act will have the same rights to contribution as that
party, and each officer of the Company who signed the Registration
Statement will have the same rights to contribution as the Company, subject
in each case to the provisions hereof. Any party entitled to contribution,
promptly after receipt of notice of commencement of any action against such
party in respect of which a claim for contribution may be made under this
Section 6(d), will notify any such party or parties from whom contribution
may be sought, but the omission so to notify will not relieve the party or
parties from whom contribution may be sought from any other obligation it
or they may have under this Section 6(d). No party will be liable for
contribution with respect to any action or claim settled without its
written consent (which consent will not be unreasonably withheld).
(e) The indemnity and contribution agreements contained in this
Section 6 and the representations and warranties of the Company contained
in this Agreement shall remain operative and in full force and effect
regardless of (i) any investigation made by or on behalf of the
Underwriters, (ii) acceptance of any of the Securities and payment therefor
or (iii) any termination of this Agreement.
7. TERMINATION. The obligations of the several Underwriters under
this Agreement may be terminated at any time on or prior to the Closing
Date by notice to the Company from the Representatives, without liability
on the part of any Underwriter to the Company, if, prior to delivery and
payment for the Securities, in the sole judgment of the Representatives,
(i) trading in securities generally on the New York Stock Exchange shall
have been suspended or limited or minimum or maximum prices shall have been
generally established on such exchange, or additional material governmental
restrictions, not in force on the date of this Agreement, shall have been
imposed upon trading in securities generally by such exchange or by order
of the Commission or any court or other governmental authority, and any
such suspensions, limitations or restrictions shall continue to remain in
effect, (ii) a general banking moratorium shall have been declared by
either federal or New York State authorities, (iii) any material adverse
change in the financial or securities markets in the United States or in
political, financial or economic conditions in the United States or any
outbreak or material escalation of hostilities or declaration by the United
States of a national emergency or war or other calamity or crisis shall
have occurred the effect of any of which is such as to make it, in the sole
judgment of the Representatives, impracticable or inadvisable to market the
Securities on the terms and in the manner contemplated by the Final
Prospectus or (iv) since the Execution Date, there shall have been a
decrease in the rating of any of the Company's debt securities by any
"nationally recognized statistical rating organization" (as defined for
purpose of Rule 436(g) under the Act) or a notice given of any intended or
potential decrease in any such rating or of a possible change in any such
rating that does not indicate the direction of the possible change.
8. SUBSTITUTION OF UNDERWRITERS. If any one or more of the
Underwriters shall fail or refuse to purchase any of the Securities which
it or they have agreed to purchase hereunder, and the aggregate principal
amount of Securities which such defaulting Underwriter or Underwriters
agreed but failed or refused to purchase is not more than one-tenth of the
aggregate principal amount of Securities, the other Underwriters shall be
obligated, severally, to purchase the Securities which such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase, in
the proportions which the principal amount of Securities which they have
respectively agreed to purchase pursuant to Section 1 bears to the
aggregate principal amount of Securities which all such non-defaulting
Underwriters have so agreed to purchase, or in such other proportions as
the Representatives may specify; provided that in no event shall the
maximum principal amount of Securities which any Underwriter has become
obligated to purchase pursuant to Section 1 be increased pursuant to this
Section 8 by more than one-ninth of the principal amount of Securities
agreed to be purchased by such Underwriter without the prior written
consent of such Underwriter. If any Underwriter or Underwriters shall fail
or refuse to purchase any Securities and the aggregate principal amount of
Securities which such defaulting Underwriter or Underwriters agreed but
failed or refused to purchase exceeds one-tenth of the aggregate principal
amount of the Securities and arrangements satisfactory to the
Representatives and the Company for the purchase of such Securities are not
made within 48 hours after such default, this Agreement will terminate
without liability on the part of any non-defaulting Underwriter or the
Company for the purchase or sale of any Securities under this Agreement.
In any such case either the Representatives or the Company shall have the
right to postpone the Closing Date, but in no event for longer than seven
days, in order that the required changes, if any, in the Registration
Statement and in the Final Prospectus or in any other documents or
arrangements may be effected. Any action taken pursuant to this Section 8
shall not relieve any defaulting Underwriter from liability in respect of
any default of such Underwriter under this Agreement.
9. MISCELLANEOUS. Notice given pursuant to any of the provisions of
this Agreement shall be in writing and, unless otherwise specified, shall
be mailed or delivered (a) if to the Company, at the office of the Company,
100 Century Park Drive, Monroe, Louisiana 71203, Attention: Harvey P.
Perry, Executive Vice President, Chief Administrative Officer, General
Counsel and Secretary or (b) if to the Underwriters, to the Representatives
at the offices of ___________________________. Any such notice shall be
effective only upon receipt. Any notice under Section 7 or 8 may be made
by telex or telephone, but if so made shall be subsequently confirmed in
writing.
This Agreement has been and is made solely for the benefit of the
several Underwriters and the Company and of the controlling persons,
directors and officers referred to in Section 6, and their respective
successors and assigns, and no other person shall acquire or have any right
under or by virtue of this Agreement. The term "successors and assigns" as
used in this Agreement shall not include a purchaser, as such purchaser, of
Securities from any of the several Underwriters.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK.
This Agreement may be signed in two or more counterparts with the same
effect as if the signatures thereto and hereto were upon the same
instrument.
In case any provision in this Agreement 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.
The Company and the Underwriters each hereby irrevocably waive any
right they may have to trial by jury in respect of any claim based upon or
arising out of this Agreement or the transactions contemplated hereby.
Please confirm that the foregoing correctly sets forth the agreement
between the Company and the several Underwriters.
Very truly yours,
CENTURYTEL, INC.
By:
Name:
Title:
Confirmed as of the date first
above mentioned:
[names]
Acting on behalf of themselves
and as the Representatives
of the other several Underwriters
named in Schedule I hereof.
[name]
By: ___________________________________
Name:
Title:
SCHEDULE I
UNDERWRITERS
Principal Amount of
Series______ Notes
Name Notes To Be Purchased
- ------------------------------------------ -----------------------------------
- ------------------------------------------ $
___________________________________
Total..................................... $
===================================
SCHEDULE II
SUBSIDIARIES
NAME
CenturyTel of Central Louisiana, LLC (successor to Central Louisiana
Telephone Company, Inc.)
CenturyTel of Evangeline, LLC (successor to Evangeline Telephone Company)
CenturyTel of Arkansas, Inc. (formerly named Century Telephone of Arkansas,
Inc.)
CenturyTel of Mountain Home, Inc. (formerly named Mountain Home Telephone
Co., Inc.)
CenturyTel of Wisconsin, LLC (successor to Century Telephone of Wisconsin,
Inc.)
CenturyTel Midwest-Michigan, Inc. (formerly named Century Telephone
Midwest, Inc.)
CenturyTel of Michigan, Inc. (formerly named Century Telephone of Michigan,
Inc.)
Century Cellunet of Southern Michigan, Inc.
CenturyTel Wireless, Inc. (formerly named Century Cellunet, Inc.)
CenturyTel Investments, LLC (successor to Century Investments, Inc.)
CenturyTel of San Marcos, Inc. (formerly named Century Telephone of San
Marcos, Inc.)
CenturyTel of Ohio, Inc. (formerly named Century Telephone of Ohio, Inc.)
Celutel, Inc.
CenturyTel of the Northwest, Inc. (formerly named Pacific Telecom, Inc.)
Pacific Telecom Cellular, Inc.
EXHIBIT A
CENTURYTEL, INC.
_____________________________
PRICE DETERMINATION AGREEMENT
-----------------------------
_________ __, 2000
[name]
As Representatives of
the several Underwriters
[address]
Dear Ladies and Gentlemen:
Reference is made to the Underwriting Agreement, dated __________
__,2000 (the "Underwriting Agreement"), among CenturyTel, Inc., a Louisiana
corporation (the "Company"), and the several Underwriters named in Schedule
I thereto or hereto (the "Underwriters"), for whom [name] are acting as
representatives (the "Representatives"). The Underwriting Agreement
provides for the purchase by the Underwriters from the Company, subject to
the terms and conditions set forth therein, of an aggregate of
$_____________ principal amount of the Company's ___% Senior Notes, Series
_____, due ____ (the "Series _____ Notes") and $____________ principal
amount of the Company's _____% Senior Notes, Series _____, due _____ (the
"Series _____ Notes" and, together with the Series _____ Notes, the
"Securities") to be issued pursuant to an Indenture dated as of March 31,
1994 between the Company and Regions Bank (successor to First American
Bank & Trust of Louisiana and Regions Bank of Louisiana), as Trustee. This
Agreement is the Price Determination Agreement referred to in the
Underwriting Agreement.
Pursuant to Section 1 of the Underwriting Agreement, the undersigned
agree with the Representatives that the purchase price for the Securities
to be paid by each of the several Underwriters shall be ___% of the
aggregate principal amount of the Series _____ Notes and _____% of the
aggregate principal amount of the Series _____ Notes set forth opposite the
name of such Underwriter in Schedule I attached hereto.
The Company represents and warrants to each of the Underwriters that
the representations and warranties of the Company set forth in Section 3 of
the Underwriting Agreement are accurate in all material respects as though
expressly made at and as of the date hereof.
As contemplated by the Underwriting Agreement, attached as Schedule I
is a completed list of the several Underwriters, which shall be a part of
this Agreement and the Underwriting Agreement.
THIS AGREEMENT SHALL BE GOVERNED BY THE LAW OF THE STATE OF NEW YORK.
If the foregoing is in accordance with your understanding of the
agreement among the Underwriters and the Company, please sign and return to
the Company a counterpart hereof, whereupon this instrument along with all
counterparts and together with the Underwriting Agreement shall be a
binding agreement among the Underwriters and the Company in accordance with
its terms and the terms of the Underwriting Agreement.
Very truly yours,
CENTURYTEL, INC.
By:
___________________________________
Name:
Title:
Confirmed as of the date
first above mentioned:
[name]
Acting on behalf of themselves
and as the Representatives
of the other several Underwriters
named in Schedule I hereof.
[name]
By: __________________________________
Name:
Title:
[name]
By: __________________________________
Name:
Title:
EXHIBITS B AND C INTENTIONALLY DELETED
CENTURY TELEPHONE ENTERPRISES, INC.
AND
FIRST AMERICAN BANK & TRUST OF LOUISIANA
AS TRUSTEE
INDENTURE
Dated as of March 31, 1994
Securities
<PAGE>
CROSS-REFERENCE TABLE
SECTION OF
TRUST INDENTURE ACT SECTION OF
OF 1939, AS AMENDED INDENTURE
310(a).................................................................7.09
310(b).................................................................7.08
7.10
310(c).........................................................Inapplicable
311(a)..............................................................7.13(a)
311(b)..............................................................7.13(b)
311(c).........................................................Inapplicable
312(a).................................................................5.01
5.02(a)
312(b)..............................................................5.02(b)
312(c)..............................................................5.02(c)
313(a)..............................................................5.04(a)
313(b)..............................................................5.04(b)
313(c)..............................................................5.04(a)
5.04(b)
313(d)..............................................................5.04(c)
314(a).................................................................5.03
314(b).........................................................Inapplicable
314(c)................................................................13.06
314(d).........................................................Inapplicable
314(e)................................................................13.06
314(f).........................................................Inapplicable
315(a)..............................................................7.01(a)
7.02
315(b).................................................................6.07
315(c).................................................................7.01
315(d)..............................................................7.01(b)
7.01(c)
315(e).................................................................6.08
316(a).................................................................6.06
8.04
316(b).................................................................6.04
316(c).................................................................8.01
317(a).................................................................6.02
317(b).................................................................4.04
318(a)................................................................13.08
TABLE OF CONTENTS
PAGE
ARTICLE I.
DEFINITIONS
SECTION 1.01. Terms Defined.
Affiliate.......................................................... 2
Authenticating Agent............................................... 2
Board of Directors................................................. 2
Board Resolution................................................... 2
Business Day....................................................... 2
Certificate........................................................ 3
Corporate Trust Office............................................. 3
Company............................................................ 3
Default............................................................ 3
Event of Default................................................... 3
Governmental Obligations........................................... 3
Indenture.......................................................... 4
Interest Payment Date.............................................. 4
Officers' Certificate.............................................. 4
Opinion of Counsel................................................. 4
Outstanding........................................................ 4
Paying Agent....................................................... 4
Person............................................................. 4
Predecessor Security............................................... 5
Responsible Officer................................................ 5
Security" or "Securities........................................... 5
Securityholder..................................................... 5
Subsidiary......................................................... 5
Trustee............................................................ 5
Trust Indenture Act of 1939, as amended............................ 6
ARTICLE II.
ISSUE, DESCRIPTION, TERMS, EXECUTION,
REGISTRATION AND EXCHANGE OF SECURITIES
SECTION 2.01............................................................. 6
SECTION 2.02............................................................. 7
SECTION 2.03............................................................. 7
SECTION 2.04............................................................. 9
SECTION 2.05.............................................................10
SECTION 2.06.............................................................12
SECTION 2.07.............................................................12
SECTION 2.08.............................................................13
SECTION 2.09.............................................................13
SECTION 2.10.............................................................14
SECTION 2.11.............................................................14
SECTION 2.12.............................................................14
ARTICLE III.
REDEMPTION OF SECURITIES AND SINKING FUND PROVISIONS
SECTION 3.01.............................................................15
SECTION 3.02.............................................................15
SECTION 3.03.............................................................16
SECTION 3.04.............................................................17
SECTION 3.05.............................................................17
SECTION 3.06.............................................................17
ARTICLE IV.
PARTICULAR COVENANTS OF THE COMPANY
SECTION 4.01.............................................................18
SECTION 4.02.............................................................18
SECTION 4.03.............................................................18
SECTION 4.04.............................................................20
SECTION 4.05.............................................................20
SECTION 4.06.............................................................21
ARTICLE V.
SECURITYHOLDERS' LISTS AND REPORTS BY THE COMPANY
AND THE TRUSTEE
SECTION 5.01.............................................................22
SECTION 5.02.............................................................22
SECTION 5.03.............................................................24
SECTION 5.04.............................................................25
ARTICLE VI.
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
SECTION 6.01.............................................................26
SECTION 6.02.............................................................29
SECTION 6.03.............................................................31
SECTION 6.04.............................................................31
SECTION 6.05.............................................................32
SECTION 6.06.............................................................32
SECTION 6.07.............................................................33
SECTION 6.08.............................................................34
ARTICLE VII.
CONCERNING THE TRUSTEE
SECTION 7.01.............................................................34
SECTION 7.02.............................................................36
SECTION 7.03.............................................................37
SECTION 7.04.............................................................37
SECTION 7.05.............................................................37
SECTION 7.06.............................................................38
SECTION 7.07.............................................................38
SECTION 7.08.............................................................38
SECTION 7.09.............................................................39
SECTION 7.10.............................................................39
SECTION 7.11.............................................................40
SECTION 7.12.............................................................42
SECTION 7.13.............................................................42
ARTICLE VIII.
CONCERNING THE SECURITYHOLDERS
SECTION 8.01.............................................................46
SECTION 8.02.............................................................47
SECTION 8.03.............................................................47
SECTION 8.04.............................................................48
SECTION 8.05.............................................................48
ARTICLE IX.
SUPPLEMENTAL INDENTURES
SECTION 9.01.............................................................49
SECTION 9.02.............................................................50
SECTION 9.03.............................................................51
SECTION 9.04.............................................................51
SECTION 9.05.............................................................51
ARTICLE X.
CONSOLIDATION, MERGER AND SALE
SECTION 10.01............................................................51
SECTION 10.02............................................................52
SECTION 10.03............................................................53
ARTICLE XI.
SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS
SECTION 11.01............................................................53
SECTION 11.02............................................................54
SECTION 11.03............................................................54
SECTION 11.04............................................................54
SECTION 11.05............................................................55
ARTICLE XII.
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS
AND DIRECTORS
SECTION 12.01............................................................55
ARTICLE XIII.
SUNDRY PROVISIONS
SECTION 13.01............................................................56
SECTION 13.02............................................................56
SECTION 13.03............................................................56
SECTION 13.04............................................................56
SECTION 13.05............................................................56
SECTION 13.06............................................................56
SECTION 13.07............................................................57
SECTION 13.08............................................................57
SECTION 13.09............................................................57
SECTION 13.10............................................................57
THIS INDENTURE, dated as of the 31st day of March, 1994, between
CENTURY TELEPHONE ENTERPRISES, INC., a corporation duly organized and
existing under the laws of the State of Louisiana (hereinafter sometimes
referred to as the "Company"), and FIRST AMERICAN BANK & TRUST OF
LOUISIANA, a Louisiana banking corporation, as trustee (hereinafter
sometimes referred to as the "Trustee"):
WHEREAS, for its lawful corporate purposes, the Company has duly
authorized the execution and delivery of this Indenture to provide for the
issuance of unsecured securities, debentures, notes or other evidences of
indebtedness (hereinafter referred to as the "Securities"), in an unlimited
aggregate principal amount to be issued from time to time in one or more
series as in this Indenture provided as registered Securities without
coupons, to be authenticated by the certificate of the Trustee;
WHEREAS, to provide the terms and conditions upon which the
Securities are to be authenticated, issued and delivered, the Company has
duly authorized the execution of this Indenture;
WHEREAS, the Securities and the certificate of authentication to
be borne by the Securities (the "Certificate of Authentication") are to be
substantially in such forms as may be approved by the Board of Directors
(as defined below) or set forth in any indenture supplemental to this
Indenture;
AND WHEREAS, all acts and things necessary to make the Securities
issued pursuant hereto, when executed by the Company and authenticated and
delivered by the Trustee as in this Indenture provided, the valid, binding
and legal obligations of the Company, and to constitute these presents a
valid indenture and agreement according to its terms, have been done and
performed or will be done and performed prior to the issuance of such
Securities, and the execution of this Indenture and the issuance hereunder
of the Securities have been or will be prior to issuance in all respects
duly authorized, and the Company, in the exercise of the legal right and
power in it vested, executes this Indenture and proposes to make, execute,
issue and deliver the Securities;
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
That in order to declare the terms and conditions upon which the
Securities are and are to be authenticated, issued and delivered, and in
consideration of the premises, of the purchase and acceptance of the
Securities by the holders thereof and of the sum of one dollar ($1.00) to
it duly paid by the Trustee at the execution of these presents, the receipt
whereof is hereby acknowledged, the Company covenants and agrees with the
Trustee, for the equal and proportionate benefit (subject to the provisions
of this Indenture) of the respective holders from time to time of the
Securities, without any discrimination, preference or priority of any one
Security over any other by reason of priority in the time of issue, sale or
negotiation thereof, or otherwise, except as provided herein, as follows:
ARTICLE I.
DEFINITIONS
SECTION 1.01. The terms defined in this Section (except as in
this Indenture otherwise expressly provided or unless the context otherwise
requires) for all purposes of this Indenture, any resolution of the Board
of Directors of the Company and of any indenture supplemental hereto shall
have the respective meanings specified in this Section. All other terms
used in this Indenture which are defined in the Trust Indenture Act of
1939, as amended, or which are by reference in such Act defined in the
Securities Act of 1933, as amended (except as herein otherwise expressly
provided or unless the context otherwise requires), shall have the meanings
assigned to such terms in said Trust Indenture Act and in said Securities
Act as in force at the date of the execution of this instrument.
"AFFILIATE" means any person directly or indirectly controlling
or controlled by or under direct or indirect common control with the
Company. For the purposes of this definition, "control" when used with
respect to any specified Person means the power to direct the management
and policies of such Person, directly or indirectly, whether through the
ownership of voting securities, by contract or otherwise, and the terms
"controlling" and "controlled" have meanings correlative to the foregoing.
"AUTHENTICATING AGENT" means an authenticating agent with respect
to all or any of the series of Securities, as the case may be, appointed
with respect to all or any series of the Securities, as the case may be, by
the Trustee pursuant to Section 2.10.
"BOARD OF DIRECTORS" shall mean the Board of Directors of the
Company, or a properly empowered Executive or Special Committee of such
Board.
"BOARD RESOLUTION" shall mean 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.
"BUSINESS DAY", with respect to any series of securities, shall
mean any day other than a day on which banking institutions in the City of
Monroe, State of Louisiana or the Borough of Manhattan, the City and State
of New York, as the case may be (depending on whether an office or agency
of the Company is being maintained in either such city with respect to any
such series), are authorized or obligated by law or executive order to
close.
"CERTIFICATE" shall mean a certificate signed by the principal
executive officer, the principal financial officer, the treasurer or the
principal accounting officer of the Company. The Certificate need not
comply with the provisions of Section 13.06(a) unless the context shall so
require.
"CORPORATE TRUST OFFICE" shall mean the office of the Trustee at
which at any particular time its corporate trust business shall be
principally administered, which office at the date of the execution of this
Indenture is located at First American Bank & Trust of Louisiana, 1500
North 18th Street, Monroe, Louisiana 71201.
"COMPANY" shall mean Century Telephone Enterprises, Inc., a
corporation duly organized and existing under the laws of the State of
Louisiana, and, subject to the provisions of Article Ten, shall also
include its successors and assigns.
"DEFAULT" shall mean any event, act or condition which with
notice or lapse of time, or both, would constitute an Event of Default.
"EVENT OF DEFAULT" with respect to Securities of a particular
series shall mean any event specified in Section 6.01, continued for the
period of time, if any, therein designated.
"GOVERNMENTAL OBLIGATIONS" shall mean securities that are (i)
direct obligations of the United States of America for the payment of which
its full faith and credit 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, in either case, are not callable or redeemable at the
option of the issuer thereof, and shall also include a depositary receipt
issued by a bank (as defined in Section 3(a)(2) of the Securities Act of
1933, as amended) as custodian with respect to any such Governmental
Obligation or a specific payment of principal of or interest on any such
Governmental Obligation held by such custodian for the account of the
holder of such depository receipt; provided that (except as required by
law) such custodian is not authorized to make any deduction from the amount
payable to the holder of such depository receipt from any amount received
by the custodian in respect of the Governmental Obligation or the specific
payment of principal of or interest on the Governmental Obligation
evidenced by such depository receipt.
"INDENTURE" shall mean this instrument as originally executed,
or, if amended or supplemented as herein provided, as so amended or
supplemented.
"INTEREST PAYMENT DATE" when used with respect to any installment
of interest on a Security of a particular series shall mean the date
specified in such Security or in a Board Resolution or in an indenture
supplemental hereto with respect to such series as the fixed date on which
an installment of interest with respect to Securities of that series is due
and payable.
"OFFICERS' CERTIFICATE" shall mean a certificate signed by the
President or the Chief Financial Officer and by the Treasurer or an
Assistant Treasurer or the Controller or an Assistant Controller or the
Secretary or an Assistant Secretary of the Company. Each such certificate
shall include the statements provided for in Section 13.06, if and to the
extent required by the provisions thereof.
"OPINION OF COUNSEL" shall mean an opinion in writing signed by
legal counsel, who shall be satisfactory to the Trustee and who may be an
employee of or counsel for the Company. Each such opinion shall include
the statements provided for in Section 13.06, if and to the extent required
by the provisions thereof.
"OUTSTANDING", when used with reference to Securities of any
series, shall, subject to the provisions of Section 8.04, mean, as of any
particular time, all Securities of that series theretofore authenticated
and delivered by the Trustee under this Indenture, except (a) Securities
theretofore canceled by the Trustee or any paying agent, or delivered to
the Trustee or any paying agent for cancellation or which have previously
been canceled; (b) Securities or portions thereof for the payment or
redemption of which moneys or Governmental Obligations in the necessary
amount shall have been deposited in trust with the Trustee or with any
paying agent (other than the Company) or shall have been set aside and
segregated in trust by the Company (if the Company shall act as its own
paying agent); provided, however, that if such Securities or portions of
such Securities are to be redeemed prior to the maturity thereof, notice of
such redemption shall have been given as in Article Three provided, or
provision satisfactory to the Trustee shall have been made for giving such
notice; and (c) Securities in lieu of or in substitution for which other
Securities shall have been authenticated and delivered pursuant to the
terms of Section 2.07.
"PAYING AGENT" means any Person, including the Company or the
Trustee, authorized by the Company to pay the principal of, and premium, if
any, or interest, if any, on any Securities on behalf of the Company.
"PERSON" means any individual, corporation, partnership, joint
venture, trust, limited liability company, limited liability partnership or
unincorporated organization or any government or any political subdivision,
instrumentality or agency thereof.
"PREDECESSOR SECURITY" of any particular Security shall mean
every previous Security evidencing all or a portion of the same debt as
that evidenced by such particular Security; and, for the purposes of this
definition, any Security authenticated and delivered under Section 2.07 in
lieu of a lost, destroyed or stolen Security shall be deemed to evidence
the same debt as the lost, destroyed or stolen Security.
"RESPONSIBLE OFFICER" when used with respect to the Trustee shall
mean any corporate trust officer or any assistant corporate trust officer
or any other officer or assistant officer of the Trustee customarily
performing functions similar to those performed by the persons who at the
time shall be such officers, respectively, or to whom any corporate trust
matter is referred because of his or her knowledge of and familiarity with
the particular subject.
"SECURITY" OR "SECURITIES" shall mean any Security or Securities,
as the case may be, authenticated and delivered under this Indenture.
"SECURITYHOLDER", "holder of Securities", "registered holder", or
other similar term, shall mean the person or persons in whose name or names
a particular Security shall be registered on the books of the Company kept
for that purpose in accordance with the terms of this Indenture.
"SUBSIDIARY" shall mean (a) any corporation at least a majority
of whose outstanding voting stock shall at the time be owned by the Company
or by one or more Subsidiaries or by the Company and one or more
Subsidiaries and (b) the partnerships, joint ventures and any other
entities of which the Company is the managing general partner or otherwise
effectively controls such entity. For the purposes only of the definition
of the term "Subsidiary", the term "voting stock", as applied to the stock
of any corporation, shall mean stock of any class or classes having
ordinary voting power for the election of a majority of the directors of
such corporation, other than stock having such power only by reason of the
occurrence of a contingency.
"TRUSTEE" shall mean First American Bank & Trust of Louisiana,
and, subject to the provisions of Article Seven, shall also include its
successors and assigns, and, if at any time there is more than one person
acting in such capacity hereunder, "Trustee" shall mean each such person.
The term "Trustee" as used with respect to a particular series of the
Securities shall mean the trustee with respect to that series.
"TRUST INDENTURE ACT OF 1939, AS AMENDED," subject to the
provisions of Sections 9.01, 9.02, and 10.01, shall mean the Trust
Indenture Act of 1939, as amended and in effect at the date of execution of
this Indenture.
ARTICLE II.
ISSUE, DESCRIPTION, TERMS, EXECUTION,
REGISTRATION AND EXCHANGE OF SECURITIES
SECTION 2.01. The aggregate principal amount of Securities which
may be authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series up to the
aggregate principal amount of Securities of that series from time to time
authorized by or pursuant to a Board Resolution, or pursuant to one or more
indentures supplemental hereto, prior to the initial issuance of Securities
of a particular series. Prior to the initial issuance of Securities of any
series, there shall be established in or pursuant to a Board Resolution or
established in one or more indentures supplemental hereto:
(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from all other Securities);
(2) any limit upon the aggregate principal amount of the
Securities of that series which may be authenticated and delivered
under this Indenture (except for Securities authenticated and
delivered upon registration of transfer of, or in exchange for, or in
lieu of, other Securities of that series as provided in Section 2.07
and Section 2.08);
(3) the date or dates on which the principal of the Securities
of the series is payable;
(4) the rate or rates at which the Securities of the series
shall bear interest or the manner of calculation of such rate or
rates, if any, the date or dates from which such interest shall
accrue, the interest payment dates on which such interest shall be
payable or the manner of determination of such interest payment dates;
(5) the period or periods within which, the price or prices at
which and the terms and conditions upon which, Securities of the
series may be redeemed, in whole or in part, at the option of the
Company;
(6) the obligation, if any, of the Company to redeem or purchase
Securities of the series pursuant to any sinking fund or analogous
provisions (including payments made in cash in anticipation of future
sinking fund obligations) or at the option of a holder thereof and the
period or periods within which, the price or prices at which, and the
terms and conditions upon which, Securities of the series shall be
redeemed or purchased, in whole or in part, pursuant to such
obligation;
(7) the form of the Securities of the series including the form
of the Certificate of Authentication for such series;
(8) if other than denominations of $1,000 or any integral
multiple thereof, the denominations in which the Securities of the
series shall be issuable; and
(9) any and all other terms with respect to such series (which
terms shall not be inconsistent with the terms of this Indenture).
All Securities of any one series shall be substantially identical
except as to denomination and except as may otherwise be provided in or
pursuant to any such Board Resolution or in any indentures supplemental
hereto.
If any of the terms of the series are established by action taken
pursuant to a Board Resolution, a copy thereof shall be delivered to the
Trustee at or prior to the delivery of the Officers' Certificate setting
forth the terms of the series.
SECTION 2.02. The Securities of any series and the Trustee's
Certificate of Authentication to be borne by such Securities shall be
substantially of the tenor and purport as set forth in one or more
indentures supplemental hereto or as provided in a Board Resolution, and
may have such letters, numbers, CUSIP numbers or other marks of
identification or designation and such legends or endorsements printed,
lithographed or engraved thereon as the Company may deem appropriate and as
are not inconsistent with the provisions of this Indenture, or as may be
required to comply with any law or with any rule or regulation made
pursuant thereto or with any rule or regulation of any stock exchange on
which Securities of that series may be listed, or to conform to usage.
SECTION 2.03. The Securities shall be issuable as registered
Securities and in the denominations of $1,000 or any multiple thereof,
subject to Section 2.01(8). The Securities of a particular series shall
bear interest payable on the dates and at the rate specified with respect
to that series. The principal of and the interest on the Securities of any
series, as well as any premium thereon in case of redemption thereof prior
to maturity, shall be payable in the coin or currency of the United States
of America which at the time is legal tender for public and private debt,
at the office or agency of the Company maintained for that purpose in
either the City of Monroe, State of Louisiana or the Borough of Manhattan,
the City and State of New York, or, at the option of the Company, by check
in United States of America dollars mailed or delivered to the person in
whose name such Security is registered. Each Security shall be dated the
date of its authentication. Interest on the Securities shall be computed
on the basis of a 360-day year composed of twelve 30-day months; provided
that interest on Securities bearing interest at a floating rate shall be
computed on the basis of a year of 365 or 366 days, as appropriate, for the
actual number of days elapsed.
The interest installment on any Security which is payable, and is
punctually paid or duly provided for, on any interest payment date for
Securities of that series shall be paid to the person in whose name said
Security (or one or more predecessor Securities) is registered at the close
of business on the regular record date for such interest installment. In
the event that any Security of a particular series or portion thereof is
called for redemption and the redemption date is subsequent to a regular
record date with respect to any interest payment date and prior to such
interest payment date, interest on such Security will be paid upon
presentation and surrender of such Security as provided in Section 3.03.
Any interest on any Security which is payable, but is not
punctually paid or duly provided for, on any interest payment date for
Securities of the same series (herein called "Defaulted Interest") shall
forthwith cease to be payable to the registered holder on the relevant
regular record date by virtue of having been such holder; and such
Defaulted Interest shall be paid by the Company, at its election, as
provided in clause (1) or clause (2) below:
(1) The Company may make payment of any Defaulted Interest on
Securities to the persons in whose names 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 satisfactory to the Trustee for such deposit prior to the
date of the proposed payment, such money when deposited to be held in
trust for the benefit of the persons entitled to such Defaulted
Interest as in this clause provided. Thereupon the Trustee shall fix
a special record date for the payment of such Defaulted Interest which
shall not be more than 15 or less than 10 days prior to the date of
the proposed payment and not less than 10 days after the receipt by
the Trustee of the notice of the proposed payment. The Trustee shall
promptly notify the Company of such special record date and, in the
name and at the expense of the Company, shall cause notice of the
proposed payment of such Defaulted Interest and the special record
date therefor to be mailed, first class postage prepaid, to each
Securityholder at his or her address as it appears in the Security
Register (as hereinafter defined), 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 mailed as
aforesaid, such Defaulted Interest shall be paid to the persons in
whose names such Securities (or their respective Predecessor
Securities) are registered on the close of business on such special
record date and shall be no longer payable pursuant to the following
clause (2).
(2) The Company may make payment of any Defaulted Interest on any
Securities 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.
The term "regular record date" as used in this Section with
respect to a series of Securities with respect to any interest payment date
for such series shall mean either the fifteenth day of the month
immediately preceding the month in which an interest payment date
established for such series pursuant to Section 2.01 hereof shall occur, if
such interest payment date is the first day of a month, or the last day of
the month immediately preceding the month in which an interest payment date
established for such series pursuant to Section 2.01 hereof shall occur, if
such interest payment date is the fifteenth day of a month, whether or not
such date is a Business Day.
Subject to the foregoing provisions of this Section, each
Security of a series delivered under this Indenture upon transfer of or in
exchange for or in lieu of any other Security of such series shall carry
the rights to interest accrued and unpaid, and to accrue, which were
carried by such other Security.
SECTION 2.04. The Securities shall, subject to the provisions of
Section 2.06, be printed on steel engraved borders or fully or partially
engraved, or legibly typed, as the proper officers of the Company may
determine, and shall be signed on behalf of the Company by its President or
one of its Vice Presidents, under its corporate seal attested by its
Secretary or one of its Assistant Secretaries. The signature of the
President or a Vice President and/or the signature of the Secretary or an
Assistant Secretary in attestation of the corporate seal, upon the
Securities, may be in the form of a facsimile signature of a present or any
future President or Vice President and of a present or any future Secretary
or Assistant Secretary and may be imprinted or otherwise reproduced on the
Securities and for that purpose the Company may use the facsimile signature
of any person who shall have been a President or Vice President, or of any
person who shall have been a Secretary or Assistant Secretary,
notwithstanding the fact that at the time the Securities shall be
authenticated and delivered or disposed of such person shall have ceased to
be the President or a Vice President, or the Secretary or an Assistant
Secretary, of the Company, as the case may be. The seal of the Company may
be in the form of a facsimile of the seal of the Company and may be
impressed, affixed, imprinted or otherwise reproduced on the Securities.
Only such Securities of a series as shall bear thereon a
certificate of authentication substantially in the form established for
such series, executed manually by an authorized signatory of the Trustee,
or by any Authenticating Agent appointed by the Trustee with respect to
such series, shall be entitled to the benefits of this Indenture or be
valid or obligatory for any purpose. Such certificate executed by the
Trustee, or by any Authenticating Agent appointed by the Trustee with
respect to such series, upon any Security of such series executed by the
Company shall be conclusive evidence that the Security so authenticated has
been duly authenticated and delivered hereunder and that the holder is
entitled to the benefits of this Indenture.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities of any
series executed by the Company to the Trustee for authentication, together
with a written order of the Company for the authentication and delivery of
such Securities, signed by its President or any Vice President and its
Treasurer or any Assistant Treasurer, and the Trustee in accordance with
such written order shall authenticate and deliver such Securities.
In authenticating Securities of any series and accepting the
additional responsibilities under this Indenture in relation to such
Securities, the Trustee shall be entitled to receive, and (subject to
Section 7.01) shall be fully protected in relying upon, an Opinion of
Counsel stating that the form and terms thereof have been established in
conformity with the provisions of this Indenture and that such Securities,
when authenticated and delivered by the Trustee, will be duly authorized,
executed and delivered and will constitute the legal, valid and binding
obligations of the Company, enforceable against it in accordance with their
terms.
The Trustee shall not be required to authenticate any Securities
of a series if the issue of such Securities pursuant to this Indenture will
affect the Trustee's own rights, duties or immunities under the Securities
and this Indenture or otherwise in a manner which is not reasonably
acceptable to the Trustee.
SECTION 2.05. (a) Securities of any series may be exchanged upon
presentation thereof at the office or agency of the Company designated for
such purpose in either the City of Monroe, State of Louisiana, or the
Borough of Manhattan, the City and State of New York, for other Securities
of such series of authorized denominations, and for a like aggregate
principal amount, upon payment of a sum sufficient to cover any tax or
other governmental charge in relation thereto, all as provided in this
Section. In respect of any Securities so surrendered for exchange, the
Company shall execute, the Trustee shall authenticate and such office or
agency shall deliver in exchange therefor the Security or Securities of the
same series which the Securityholder making the exchange shall be entitled
to receive, bearing numbers not contemporaneously outstanding.
(b) The Trustee is hereby appointed as the registrar (the
"Security Registrar") for the purpose of registering securities and the
transfer of securities as herein provided. The Company shall cause to be
kept at the office or agency designated for such purpose in either the City
of Monroe, State of Louisiana, or the Borough of Manhattan, the City and
State of New York, or such other location designated by the Company a
register or registers (herein referred to as the "Security Register") in
which, subject to such reasonable regulations as it may prescribe, the
Company shall register the Securities and the transfers of Securities as in
this Article provided.
Upon surrender for transfer of any Security at the office or
agency of the Company designated for such purpose in either the City of
Monroe, State of Louisiana, or the Borough of Manhattan, the City and State
of New York, the Company shall execute, the Trustee shall authenticate and
such office or agency shall deliver in the name of the transferee or
transferees a new Security or Securities of the same series as the Security
presented for a like aggregate principal amount.
All Securities presented or surrendered for exchange or
registration of transfer, as provided in this Section, shall be accompanied
(if so required by the Company or the Security Registrar) by a written
instrument or instruments of transfer, in form satisfactory to the Company
or the Security Registrar, duly executed by the registered holder or by his
duly authorized attorney in writing.
(c) No service charge shall be made for any exchange or
registration of transfer of Securities, or issue of new Securities in case
of partial redemption of any series, but the Company may require payment of
a sum sufficient to cover any tax or other governmental charge in relation
thereto, other than exchanges pursuant to Section 2.06, the second
paragraph of Section 3.03 and Section 9.04 not involving any transfer.
(d) The Company shall not be required (a) to issue, exchange or
register the transfer of the Securities of any series during a period
beginning at the opening of business 15 days before the day of the mailing
of a notice of redemption of less than all the Outstanding Securities of
such series and ending at the close of business on the day of such mailing,
nor (b) to register the transfer of or exchange any Securities of any
series or portions thereof called for redemption.
SECTION 2.06. Pending the preparation of definitive Securities
of any series, the Company may execute, and the Trustee shall authenticate
and deliver, temporary Securities (printed, lithographed or typewritten) of
any authorized denomination, and substantially in the form of the
definitive Securities in lieu of which they are issued, but with such
omissions, insertions and variations as may be appropriate for temporary
Securities, all as may be determined by the Company. Every temporary
Security of any series shall be executed by the Company and be
authenticated by the Trustee upon the same conditions and in substantially
the same manner, and with like effect, as the definitive Securities of such
series. Without unnecessary delay the Company will execute and will
furnish definitive Securities of such series and thereupon any or all
temporary Securities of such series may be surrendered in exchange therefor
(without charge to the holders), at the office or agency of the Company
designated for the purpose in either the City of Monroe, State of
Louisiana, or the Borough of Manhattan, the City and State of New York, and
the Trustee shall authenticate and such office or agency shall deliver in
exchange for such temporary Securities an equal aggregate principal amount
of definitive Securities of such series. Until so exchanged, the temporary
Securities of such series shall be entitled to the same benefits under this
Indenture as definitive Securities of such series authenticated and
delivered hereunder.
SECTION 2.07. In case any temporary or definitive Security shall
become mutilated or be destroyed, lost or stolen, the Company (subject to
the next succeeding sentence) shall execute, and upon its request the
Trustee (subject as aforesaid) shall authenticate and deliver, a new
Security of the same series bearing a number not contemporaneously
outstanding, in exchange and substitution for the mutilated Security, or in
lieu of and in substitution for the Security so destroyed, lost or stolen.
In every case the applicant for a substituted Security shall furnish to the
Company and to the Trustee such security or indemnity as may be required by
them to save each of them harmless, and, in every case of destruction, loss
or theft, the applicant shall also furnish to the Company and to the
Trustee evidence to their satisfaction of the destruction, loss or theft of
the applicant's Security and of the ownership thereof. The Trustee may
authenticate any such substituted Security and deliver the same upon the
written request or authorization of any officer of the Company. Upon the
issue of any substituted Security, 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. In case any Security which
has matured or is about to mature shall become mutilated or be destroyed,
lost or stolen, the Company may, instead of issuing a substitute Security,
pay or authorize the payment of the same (without surrender thereof except
in the case of a mutilated Security) if the applicant for such payment
shall furnish to the Company and to the Trustee such security or indemnity
as they may require to save them harmless, and, in case of destruction,
loss or theft, evidence to the satisfaction of the Company and the Trustee
of the destruction, loss or theft of such Security and of the ownership
thereof.
Every Security issued pursuant to the provisions of this Section
in substitution for any Security which is mutilated, destroyed, lost or
stolen shall constitute an additional contractual obligation of the
Company, whether or not the mutilated, destroyed, lost or stolen Security
shall be found at any time, or be enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately
with any and all other Securities of the same series duly issued hereunder.
All Securities shall be held and owned upon the express condition that the
foregoing provisions are exclusive with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities, and shall
preclude (to the extent lawful) any and all other rights or remedies,
notwithstanding any law or statute existing or hereafter enacted to the
contrary with respect to the replacement or payment of negotiable
instruments or other securities without their surrender.
SECTION 2.08. All Securities surrendered for the purpose of
payment, redemption, exchange or registration of transfer shall, if
surrendered to the Company or any paying agent, be delivered to the Trustee
for cancellation, or, if surrendered to the Trustee, shall be canceled by
it, and no Securities shall be issued in lieu thereof except as expressly
required or permitted by any of the provisions of this Indenture. On
request of the Company, the Trustee shall deliver to the Company canceled
Securities held by the Trustee. In the absence of such request the Trustee
may destroy canceled Securities in accordance with its standard procedures
and deliver a certificate of destruction to the Company. If the Company
shall otherwise acquire any of the Securities, however, such acquisition
shall not operate as a redemption or satisfaction of the indebtedness
represented by such Securities unless and until the same are delivered to
the Trustee for cancellation.
SECTION 2.09. Nothing in this Indenture or in the Securities,
express or implied, shall give or be construed to give to any person, firm
or corporation, other than the parties hereto and the holders of the
Securities, any legal or equitable right, remedy or claim under or in
respect of this Indenture, or under any covenant, condition or provision
herein contained; all such covenants, conditions and provisions being for
the sole benefit of the parties hereto and of the holders of the
Securities.
SECTION 2.10. So long as any of the Securities of any series
remain Outstanding there may be an Authenticating Agent for any or all such
series of Securities which the Trustee shall have the right to appoint.
Said Authenticating Agent shall be authorized to act on behalf of the
Trustee to authenticate Securities of such series issued upon exchange,
transfer or partial redemption thereof, 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.
All references in this Indenture to the authentication of Securities by the
Trustee shall be deemed to include authentication by an Authenticating
Agent for such series except for authentication upon original issuance or
pursuant to Section 2.07 hereof. Each Authenticating Agent shall be
acceptable to the Company and shall be a corporation which has a combined
capital and surplus, as most recently reported or determined by it,
sufficient under the laws of any jurisdiction under which it is organized
or in which it is doing business to conduct a trust business, and which is
otherwise authorized under such laws to conduct such business and is
subject to supervision or examination by Federal or State authorities. If
at any time any Authenticating Agent shall cease to be eligible in
accordance with these provisions, it shall resign immediately. All fees
and expenses of the Authenticating Agent shall be paid by the Company.
Any Authenticating Agent may at any time resign by giving written
notice of resignation to the Trustee and to the Company. The Trustee may
at any time (and upon request by the Company shall) terminate the agency of
any Authenticating Agent by giving written notice of termination to such
Authenticating Agent and to the Company. Upon resignation, termination or
cessation of eligibility of any Authenticating Agent, the Trustee may
appoint an eligible successor Authenticating Agent acceptable to the
Company. Any successor Authenticating Agent, upon acceptance of its
appointment hereunder, shall become vested with all the rights, powers and
duties of its predecessor hereunder as if originally named as an
Authenticating Agent pursuant hereto.
SECTION 2.11. The Company in issuing Securities of any series
shall use a "CUSIP" number and the Trustee shall use the CUSIP number in
notices of redemption or exchange as a convenience to the holders of the
Securities of such series; provided, that any such notice may state that no
representation is made as to the correctness or accuracy of the CUSIP
number printed in the notice or on the Securities of such series, and that
reliance may be placed only on the other identification numbers printed on
the Securities of such series.
SECTION 2.12. Prior to due presentment of a Security for
registration of transfer, the Company, the Trustee and any agent of the
Company or the Trustee may treat the Person in whose name such Security is
registered as the owner of such Security for the purpose of receiving
payments of principal of (and premium, if any), and (subject to Section
2.03) interest on such Security and for all other purposes whatsoever,
whether or not such Security be overdue, and neither the Company, the
Trustee nor any agent of the Company or the Trustee, shall be affected by
notice to the contrary.
ARTICLE III.
REDEMPTION OF SECURITIES AND SINKING FUND PROVISIONS
SECTION 3.01. The Company may redeem the Securities of any
series issued hereunder on and after the dates and in accordance with the
terms established for such series pursuant to Section 2.01 hereof.
SECTION 3.02. (a) In case the Company shall desire to exercise
such right to redeem all or, as the case may be, a portion of the
Securities of any series in accordance with the right reserved so to do,
the Company shall give notice of such redemption to holders of the
Securities of such series to be redeemed and to the Trustee by mailing,
first class postage prepaid, a notice of such redemption not less than 30
days and not more than 60 days before the date fixed for redemption of that
series to such holders at their last addresses as they shall appear upon
the Security Register. Any notice which is mailed in the manner herein
provided shall be conclusively presumed to have been duly given, whether or
not the registered holder receives the notice. In any case, failure duly
to give such notice to the holder of any Security of any series designated
for redemption in whole or in part, or any defect in the notice, shall not
affect the validity of the proceedings for the redemption of any other
Securities of such series or any other series. In the case of any
redemption of Securities prior to the expiration of any restriction on such
redemption provided in the terms of such Securities or elsewhere in this
Indenture, the Company shall furnish the Trustee with an Officers'
Certificate evidencing compliance with any such restriction.
Each such notice of redemption shall specify the date fixed for
redemption and the redemption price at which Securities of that series are
to be redeemed, and shall state that payment of the redemption price of
such Securities to be redeemed will be made at the office or agency of the
Company in either the City of Monroe, State of Louisiana, or the Borough of
Manhattan, the City and State of New York, or, at the option of the
Company, by check in United States of America dollars mailed or delivered
to the person in whose name such Security is registered, or upon
presentation and surrender of such Securities, that interest accrued to the
date fixed for redemption will be paid as specified in said notice, that
from and after said date interest will cease to accrue and that the
redemption is for a sinking fund, if such is the case. If less than all
the Securities of a series are to be redeemed, the notice to the holders of
Securities of that series to be redeemed in whole or in part shall specify
the particular Securities to be so redeemed. In case any Security is to be
redeemed in part only, the notice which relates to such Security shall
state the portion of the principal amount thereof to be redeemed, and shall
state that on and after the redemption date, upon surrender of such
Security, a new Security or Securities of such series in principal amount
equal to the unredeemed portion thereof will be issued.
(b) If less than all the Securities of a series are to be
redeemed, the Company shall give the Trustee at least 45 days' notice in
advance of the date fixed for redemption as to the aggregate principal
amount of Securities of the series to be redeemed, and thereupon the
Trustee shall select, by lot or in such other manner as it shall deem
appropriate and fair in its discretion and which may provide for the
selection of a portion or portions (equal to $1,000 or any multiple
thereof) of the principal amount of such Securities of a denomination
larger than $1,000, the Securities to be redeemed and shall thereafter
promptly notify the Company in writing of the numbers of the Securities to
be redeemed, in whole or in part.
The Company may, if and whenever it shall so elect, by delivery
of instructions signed on its behalf by its President or any Vice
President, instruct the Trustee or any paying agent to call all or any part
of the Securities of a particular series for redemption and to give notice
of redemption in the manner set forth in this Section, such notice to be in
the name of the Company or its own name as the Trustee or such paying agent
may deem advisable. In any case in which notice of redemption is to be
given by any such paying agent, the Company shall deliver or cause to be
delivered to, or permit to remain with, such paying agent, as the case may
be, such Security Registrar, transfer books or other records, or suitable
copies or extracts therefrom, sufficient to enable the paying agent to give
any notice by mail that may be required under the provisions of this
Section.
SECTION 3.03. (a) If the giving of notice of redemption shall
have been completed as above provided, the Securities or portions of
Securities of the series to be redeemed specified in such notice shall
become due and payable on the date and at the place stated in such notice
at the applicable redemption price, together with interest accrued to the
date fixed for redemption and interest on such Securities or portions of
Securities shall cease to accrue on and after the date fixed for
redemption, unless the Company shall default in the payment of such
redemption price and accrued interest with respect to any such Security or
portion thereof. On presentation and surrender of such Securities on or
after the date fixed for redemption at the place of payment specified in
the notice, said Securities shall be paid and redeemed at the applicable
redemption price for such series, together with interest accrued thereon to
the date fixed for redemption (but if the date fixed for redemption is an
interest payment date, the interest installment payable on such date shall
be payable to the registered holder at the close of business on the
applicable record date pursuant to Section 2.03).
(b) Upon presentation of any Security of such series which is to
be redeemed in part only, the Company shall execute and the Trustee shall
authenticate and the office or agency where the Security is presented shall
deliver to the holder thereof, at the expense of the Company, a new
Security or Securities of the same series, of authorized denominations in
principal amount equal to the unredeemed portion of the Security so
presented.
SECTION 3.04. The provisions of Sections 3.04, 3.05 and 3.06
shall be applicable to any sinking fund for the retirement of Securities of
a series, except as otherwise specified as contemplated by Section 2.01 for
Securities of such series.
The minimum amount of any sinking fund payment provided for by
the terms of Securities of any series is herein referred to as a "mandatory
sinking fund payment", and any payment in excess of such minimum amount
provided for by the terms of Securities of any series is herein referred to
as an "optional sinking fund payment". If a sinking fund is provided for
by the terms of Securities of any series, the cash amount of any sinking
fund payment may be subject to reduction as provided in Section 3.05. Each
sinking fund payment shall be applied to the redemption of Securities of
any series as provided for by the terms of Securities of such series.
SECTION 3.05. The Company (1) may deliver Outstanding Securities
of a series (other than any previously called for redemption) and (2) may
apply as a credit Securities of a series which have been redeemed either at
the election of the Company or the holders pursuant to the terms of such
Securities or through the application of permitted optional sinking fund
payments pursuant to the terms of the Securities of such series, in each
case in satisfaction of all or any part of any sinking fund payment with
respect to the Securities of such series required to be made pursuant to
the terms of such Securities as provided for by the terms of such series;
provided that such Securities have not been previously so credited. Such
Securities shall be received and credited for such purpose by the Trustee
at the redemption price specified in such Securities for redemption through
operation of the sinking fund and the amount of such sinking fund payment
shall be reduced accordingly.
SECTION 3.06. Not less than 45 days prior to each sinking fund
payment date for any series of Securities, the Company will deliver to the
Trustee an Officers' Certificate specifying the amount of the next ensuing
sinking fund payment for that series pursuant to the terms of that series,
the portion thereof, if any, which is to be satisfied by delivering and
crediting Securities of that series pursuant to Section 3.05 and the basis
for such credit and will also deliver to the Trustee any Securities to be
so delivered. Not less than 30 days before each such sinking fund payment
date, the Trustee shall select the Securities to be redeemed upon such
sinking fund payment date in the manner specified in Section 3.02 and cause
notice of the redemption thereof to be given in the name of and at the
expense of the Company in the manner provided in Section 3.02. Such notice
having been duly given, the redemption of such Securities shall be made
upon the terms and in the manner stated in Section 3.03.
ARTICLE IV.
PARTICULAR COVENANTS OF THE COMPANY
The Company covenants and agrees for each series of the
Securities as follows:
SECTION 4.01. The Company will duly and punctually pay or cause
to be paid the principal of (and premium, if any) and interest on the
Securities of that series at the time and place and in the manner provided
herein and established with respect to such Securities.
SECTION 4.02. So long as any series of the Securities remain
Outstanding, the Company agrees to maintain an office or agency in either
the City of Monroe, State of Louisiana, or the Borough of Manhattan, the
City and State of New York, with respect to each such series and at such
other location or locations as may be designated as provided in this
Section 4.02, where (i) Securities of that series may be presented for
payment, (ii) Securities of that series may be presented as hereinabove
authorized for registration of transfer and exchange, and (iii) notices and
demands to or upon the Company in respect of the Securities of that series
and this Indenture may be given or served. As to such office or agency in
either the City of Monroe, State of Louisiana, or the Borough of Manhattan,
the City and State of New York, the Company shall designate the required
office or agency to be located in either the City of Monroe, State of
Louisiana, or the Borough of Manhattan, the City and State of New York, for
each series of Securities, such designation to continue with respect to
such office or agency until the Company shall, by written notice signed by
its President or a Vice President and delivered to the Trustee, designate
some other office or agency for such purposes or any of them. 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, 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, notices and demands.
SECTION 4.03. (a) If the Company shall appoint one or more
paying agents for all or any series of the Securities, other than the
Trustee, the Company will cause each such paying agent to execute and
deliver to the Trustee an instrument in which such agent shall agree with
the Trustee, subject to the provisions of this Section,
(1) that it will hold all sums held by it as such agent for
the payment of the principal of (and premium, if any) or interest
on the Securities of that series (whether such sums have been
paid to it by the Company or by any other obligor on such
Securities) in trust for the benefit of the persons entitled
thereto;
(2) that it will give the Trustee notice of any failure by
the Company (or by any other obligor on such Securities) to make
any payment of the principal of (and premium, if any) or interest
on the Securities of that series when the same shall be due and
payable;
(3) that it will, at any time during the continuance of any
failure referred to in the preceding paragraph (a)(2) above, upon the
written request of the Trustee, forthwith pay to the Trustee all sums
so held in trust by such paying agent; and
(4) that it will perform all other duties of paying agent as set
forth in this Indenture.
(b) If the Company shall act as its own paying agent with
respect to any series of the Securities, it will on or before each due date
of the principal of (and premium, if any) or interest on Securities of that
series, set aside, segregate and hold in trust for the benefit of the
persons entitled thereto a sum sufficient to pay such principal (and
premium, if any) or interest so becoming due on Securities of that series
until such sums shall be paid to such persons or otherwise disposed of as
herein provided and will promptly notify the Trustee of such action, or any
failure (by it or any other obligor on such Securities) to take such
action. Whenever the Company shall have one or more paying agents for any
series of Securities, it will, prior to each due date of the principal of
(and premium, if any) or interest on any Securities of that series, deposit
with a paying agent a sum sufficient to pay the principal (and premium, if
any) or interest so becoming due, such sum to be held in trust for the
benefit of the persons entitled to such principal, premium or interest, and
(unless such paying agent is the Trustee) the Company will promptly notify
the Trustee of its action or failure so to act.
(c) Anything in this Section to the contrary notwithstanding,
(i) the agreement to hold sums in trust as provided in this Section is
subject to the provisions of Section 11.05, and (ii) the Company may at any
time, for the purpose of obtaining the satisfaction and discharge of this
Indenture or for any other purpose, pay, or direct any paying agent to pay,
to the Trustee all sums held in trust by the Company or such paying agent,
such sums to be held by the Trustee upon the same terms as those upon which
sums were held by the Company or such paying agent; and, upon such payment
by any paying agent to the Trustee, such paying agent shall be released
from all further liability with respect to such money.
SECTION 4.04. The Company, whenever necessary to avoid or fill a
vacancy in the office of Trustee, will appoint, in the manner provided in
Section 7.10, a Trustee, so that there shall at all times be a Trustee
hereunder.
SECTION 4.05. The Company will not, while any of the Securities
remain Outstanding, create, or suffer to be created or to exist, any
mortgage, lien, pledge, security interest or other encumbrance of any kind
upon any property of any character of the Company whether now owned or
hereafter acquired or upon any of the income or profits therefrom unless it
shall make effective provision whereby the Securities then Outstanding
shall be secured by such mortgage, lien, pledge, security interest or other
encumbrance equally and ratably with any and all obligations and
indebtedness thereby secured so long as any such obligations and
indebtedness shall be so secured; provided, however, that nothing in this
Section shall be construed to prevent the Company from creating, or from
suffering to be created or to exist, any mortgages, liens, pledges,
security interests or other encumbrances, or any agreements, with respect
to:
(1) Purchase money mortgages, or other purchase money liens,
pledges or encumbrances of any kind upon property hereafter
acquired by the Company, or mortgages, liens, pledges, security
interests or other encumbrances of any kind existing on such
property at the time of the acquisition thereof, or conditional
sales agreements or other title retention agreements with respect
to any property hereafter acquired; provided, however, that no
such mortgage, lien, pledge, security interest or other
encumbrance, and no such agreement, shall extend to or cover any
other property of the Company;
(2) Liens, pledges, security interests, mortgages or other
encumbrances of any kind on the shares of stock of a corporation
which, when such liens, pledges, security interests, mortgages or
other encumbrances arise, concurrently becomes a Subsidiary or liens,
pledges, security interests, mortgages or other encumbrances on all or
substantially all of the assets of a corporation arising in connection
with the purchase or acquisition thereof by the Company, provided that
such lien or other security interest shall not attach to any other
assets of the Company;
(3) Liens for taxes, assessments, governmental charges or
levies; pledges or deposits to secure obligations under worker's
compensation or unemployment insurance laws or similar
legislation; pledges or deposits to secure performance in
connection with bids, tenders, contracts, performance bonds and
other similar arrangements (other than contracts for the payment
of money) or leases to which the Company is a party; deposits to
secure public or statutory obligations of the Company;
materialmen's, mechanics', carriers', workers', repairmen's or
other like liens in the ordinary course of business, or deposits
to obtain the release of such liens; deposits to secure surety
and appeal bonds to which the Company is a party, other pledges
or deposits for similar purposes in the ordinary course of
business; liens created by or resulting from any litigation or
legal proceeding which at the time is currently being contested
in good faith by appropriate proceedings; leases made, or
existing on property acquired, in the ordinary course of
business; landlord's liens under leases to which the Company is a
party; zoning restrictions, easements, licenses, restrictions on
the use of real property or minor irregularities in title
thereto, which do not materially impair the use of such property
in the operation of the business of the Company or the value of
such property for the purpose of such business; the lien of the
trustee under any indenture (including this Indenture), liens
encumbering property or assets under construction arising from
progress or partial payments; liens arising from the filing of
UCC financing statements regarding leases or consignments; any
interest or title of a lessor in the property subject to any
capitalized lease or operating lease; liens arising out of
consignment or similar arrangements entered into in the ordinary
course of business; and liens existing on the date of this
Indenture;
(4) Indebtedness assumed by the Company of the character
specified in the first proviso of Section 4.06 hereof; or
(5) The replacement, extension or renewal of any mortgage,
lien, pledge, security interest or other encumbrance, or of any
agreement, permitted by the foregoing clauses (1), (2), (3), (4),
or the replacement, extension or renewal (without increase) of
the indebtedness secured thereby.
SECTION 4.06. The Company will not, while any of the Securities
remain Outstanding, consolidate with, or merge into, or merge into itself,
or sell or convey all or substantially all of its property to, any other
Company unless the provisions of Article Ten hereof are complied with.
If upon any such consolidation or merger, or sale or conveyance,
any of the property of the Company owned by the Company prior thereto would
thereupon become subject to any mortgage, security interest, pledge or
lien, the Company prior to such consolidation, merger, sale or conveyance
will secure the Outstanding Securities, or cause the same to be secured,
equally and ratably with the other indebtedness or obligations secured by
such mortgage, security interest, pledge or lien so long as such other
indebtedness or obligations shall be so secured; provided, however, that
the subjection of the property of the Company to any mortgage, security
interest, pledge or lien securing indebtedness of an Affiliate which is
required to be assumed by the Company in connection with any merger or
consolidation of such Affiliate shall be deemed excluded from the operation
of this Section and shall not require that any of the Securities be
secured; and provided, further, that the subjection of property of the
Company to any mortgage, security interest, pledge or lien of the character
referred to in clauses (1), (2), (3), (4) and (5) of Section 4.05 shall be
deemed excluded from the operation of this Section and shall not require
that any of the Securities be secured.
ARTICLE V.
SECURITYHOLDERS' LISTS AND REPORTS BY THE COMPANY
AND THE TRUSTEE
SECTION 5.01. The Company will furnish or cause to be furnished
to the Trustee (a) semi-annually, not more than 15 days after each regular
record date (as defined in Section 2.03) a list, in such form as the
Trustee may reasonably require, of the names and addresses of the holders
of each series of Securities as of such regular record date and (b) at such
other times as the Trustee may request in writing, within 30 days after the
receipt by the Company of any such request, a list of similar form and
content as of a date not more than 15 days prior to the time such list is
furnished; provided, however, no such list need be furnished for any series
for which the Trustee shall be the Security Registrar.
SECTION 5.02. (a) The Trustee shall preserve, in as current a
form as is reasonably practicable, all information as to the names and
addresses of the holders of Securities contained in the most recent list
furnished to it as provided in Section 5.01 and as to the names and
addresses of holders of Securities received by the Trustee in its capacity
as Security Registrar (if acting in such capacity).
(b) The Trustee may destroy any list furnished to it as provided
in Section 5.01 upon receipt of a new list so furnished.
(c) In case three or more holders of Securities of a series
(hereinafter referred to as "applicants") apply in writing to the Trustee,
and furnish to the Trustee reasonable proof that each such applicant has
owned a Security for a period of at least six months preceding the date of
such application, and such application states that the applicant's desire
to communicate with other holders of Securities of such series or holders
of all Securities with respect to their rights under this Indenture or
under such Securities, and is accompanied by a copy of the form of proxy or
other communication which such applicants propose to transmit, then the
Trustee shall, within five business days after the receipt of such
application, at its election, either
(1) afford to such applicants access to the information
preserved at the time by the Trustee in accordance with the
provisions of subsection (a) of this Section, or
(2) inform such applicants as to the approximate number of
holders of Securities of such series or of all Securities, as the
case may be, whose names and addresses appear in the information
preserved at the time by the Trustee, in accordance with the
provisions of subsection (a) of this Section, and as to the
approximate cost of mailing to such Securityholders the form of
proxy or other communication, if any, specified in such
application.
(d) If the Trustee shall elect not to afford such applicants
access to such information, the Trustee shall, upon the written request of
such applicants, mail to each holder of such series or of all Securities,
as the case may be, whose name and address appears in the information
preserved at the time by the Trustee in accordance with the provisions of
subsection (a) of this Section, a copy of the form of proxy or other
communication which is specified in such request, with reasonable
promptness after a tender to the Trustee of the material to be mailed and
of payment, or provision for the payment, of the reasonable expenses of
mailing, unless within five days after such tender, the Trustee shall mail
to such applicants and file with the Securities and Exchange Commission,
together with a copy of the material to be mailed, a written statement to
the effect that, in the opinion of the Trustee, such mailing would be
contrary to the best interests of the holders of Securities of such series
or of all Securities, as the case may be, or would be in violation of
applicable law. Such written statement shall specify the basis of such
opinion. If said Commission, after opportunity for a hearing upon the
objections specified in the written statement so filed, shall enter an
order refusing to sustain any of such objections or if, after the entry of
an order sustaining one or more of such objections, said Commission shall
find, after notice and opportunity for hearing, that all the objections so
sustained have been met and shall enter an order so declaring, the Trustee
shall mail copies of such material to all such Securityholders with
reasonable promptness after the entry of such order and the renewal of such
tender; otherwise the Trustee shall be relieved of any obligation or duty
to such applicants respecting their application.
(e) Each and every holder of the Securities, by receiving and
holding the same, agrees with the Company and the Trustee that neither the
Company nor the Trustee nor any paying agent nor any Security Registrar
shall be held accountable by reason of the disclosure of any such
information as to the names and addresses of the holders of Securities in
accordance with the provisions of subsection (b) of this Section,
regardless of the source from which such information was derived, and that
the Trustee shall not be held accountable by reason of mailing any material
pursuant to a request made under said subsection (b).
SECTION 5.03. (a) The Company covenants and agrees to file with
the Trustee, within 15 days after the Company is required to file the same
with the Securities and Exchange Commission, copies of the annual reports
and of the information, documents and other reports (or copies of such
portions of any of the foregoing as said Commission may from time to time
by rules and regulations prescribe) which the Company may be required to
file with said Commission pursuant to Section 13, Section 14 or Section
15(d) of the Securities Exchange Act of 1934, as amended; or, if the
Company is not required to file information, documents or reports pursuant
to any of such sections, then to file with the Trustee and said Commission,
in accordance with the rules and regulations prescribed from time to time
by said Commission, such of the supplementary and periodic information,
documents and reports which may be required pursuant to Section 13 of the
Securities Exchange Act of 1934, as amended, in respect of a security
listed and registered on a national securities exchange as may be
prescribed from time to time in such rules and regulations.
(b) The Company covenants and agrees to file with Trustee and
the Securities and Exchange Commission, in accordance with the rules and
regulations prescribed from time to time by said Commission, such
additional information, documents and reports with respect to compliance by
the Company with the conditions and covenants provided for in this
Indenture as may be required from time to time by such rules and
regulations.
(c) The Company covenants and agrees to, or cause the Trustee
to, transmit by mail, first class postage prepaid, or reputable over-night
delivery service which provides for evidence of receipt, to the
Securityholders, as their names and addresses appear upon the Security
Register, within 30 days after the filing thereof with the Trustee, such
summaries of any information, documents and reports required to be filed by
the Company pursuant to subsections (a) and (b) of this Section as may be
required by rules and regulations prescribed from time to time by the
Securities and Exchange Commission.
(d) The Company covenants and agrees to furnish to the Trustee
within 135 days of each fiscal year in which any of the Securities are
Outstanding, or on or before such other day in each calendar year as the
Company and the Trustee may from time to time agree upon, a certificate
from the principal executive officer, principal financial officer or
principal accounting officer as to his or her knowledge of the Company's
compliance with all conditions and covenants under this Indenture. For
purposes of this subsection (d), such compliance shall be determined
without regard to any period of grace or requirement of notice provided
under this Indenture.
SECTION 5.04. (a) On or before July 15 in each year in which
any Securities are Outstanding hereunder, the Trustee shall transmit by
mail, first class postage prepaid, to the Securityholders, as their names
and addresses appear upon the Security Register, a brief report dated as of
the preceding May 15, with respect to any of the following events which may
have occurred within the previous twelve months (but if no such event has
occurred within such period no report need be transmitted):
(1) any change to its eligibility under Section 7.09, and its
qualifications under Section 7.08;
(2) the creation of or any material change to a relationship
specified in paragraphs (1) through (10) of subsection (c) of Section
310(b) of the Trust Indenture Act;
(3) the character and amount of any advances (and if the Trustee
elects so to state, the circumstances surrounding the making thereof)
made by the Trustee (as such) which remain unpaid on the date of such
report, and for the reimbursement of which it claims or may claim a
lien or charge, prior to that of the Securities, on any property or
funds held or collected by it as Trustee if such advances so remaining
unpaid aggregate more than 1/2 of 1% of the principal amount of the
Securities outstanding on the date of such report;
(4) any change to the amount, interest rate, and maturity date of
all other indebtedness owing by the Company, or by any other obligor
on the Securities, to the Trustee in its individual capacity, on the
date of such report, with a brief description of any property held as
collateral security therefor, except any indebtedness based upon a
creditor relationship arising in any manner described in paragraphs
(2), (3), (4), or (6) of subsection (b) of Section 7.13;
(5) any change to the property and funds, if any, physically in
the possession of the Trustee as such on the date of such report;
(6) any release, or release and substitution, of property subject
to the lien of this Indenture (and the consideration thereof, if any)
which it has not previously reported;
(7) any additional issue of Securities which the Trustee has not
previously reported; and
(8) any action taken by the Trustee in the performance of its
duties under this Indenture which it has not previously reported and
which in its opinion materially affects the Securities or the
Securities of any series, except any action in respect of a default,
notice of which has been or is to be withheld by it in accordance with
the provisions of Section 6.07.
(b) The Trustee shall transmit by mail, first class postage
prepaid, to the Securityholders, as their names and addresses appear upon
the Security Register, a brief report with respect to the character and
amount of any advances (and if the Trustee elects so to state, the
circumstances surrounding the making thereof) made by the Trustee as such
since the date of the last report transmitted pursuant to the provisions of
subsection (a) of this Section (or if no such report has yet been so
transmitted, since the date of execution of this Indenture), for the
reimbursement of which it claims or may claim a lien or charge prior to
that of the Securities of any series on property or funds held or collected
by it as Trustee, and which it has not previously reported pursuant to this
subsection if such advances remaining unpaid at any time aggregate more
than 10% of the principal amount of Securities of such series Outstanding
at such time, such report to be transmitted within 90 days after such time.
(c) A copy of each such report shall, at the time of such
transmission to Securityholders, be filed by the Trustee with the Company,
with each stock exchange upon which any Securities are listed (if so
listed) and also with the Securities and Exchange Commission. The Company
agrees to notify the Trustee when any Securities become listed on any stock
exchange.
ARTICLE VI.
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
SECTION 6.01. (a) Whenever used herein with respect to
Securities of a particular series, "Event of Default" means any one or more
of the following events which has occurred and is continuing:
(1) default in the payment of any installment of interest upon
any of the Securities of such series, as and when the same shall
become due and payable,and continuance of such default for a period of
30 Business Days;
(2) default in the payment of the principal of (or premium, if
any, on) any of the Securities of such series as and when the same
shall become due and payable, whether at maturity, upon redemption, by
declaration or otherwise, or in any payment required by any sinking or
analogous fund established with respect to that series; provided,
however, that notwithstanding the foregoing, the Company's failure to
pay, if caused solely by a wire transfer malfunction or similar
problem outside the Company's control, shall not be deemed an Event of
Default;
(3) failure on the part of the Company duly to observe or perform
any other of the covenants or agreements on the part of the Company
with respect to that series contained in such Securities or otherwise
established with respect to that series of Securities pursuant to
section 2.01 hereof or contained in this Indenture (other than a
covenant or agreement which has been expressly included in this
Indenture solely for the benefit of one or more series of Securities
other than such series) for a period of 60 days after the date on
which written notice of such failure, requiring the same to be
remedied and stating that such notice is a "Notice of Default"
hereunder, shall have been given to the Company by the Trustee, by
registered or certified mail, or to the Company and the Trustee by the
holders of at least 25% in principal amount of the Securities of that
series at the time outstanding;
(4) a decree or order by a court having jurisdiction in the
premises shall have been entered adjudging the Company a bankrupt or
insolvent, or approving as properly filed a petition seeking
liquidation or reorganization of the Company under the Federal
Bankruptcy Code or any other similar applicable Federal or State law,
and such decree or order shall have continued unvacated and unstayed
for a period of 90 days; or an involuntary case shall be commenced
under such Code in respect of the Company and shall continue
undismissed for a period of 90 days or an order for relief in such
case shall have been entered; or a decree or order of a court having
jurisdiction in the premises shall have been entered for the
appointment on the ground of insolvency or bankruptcy of a receiver or
custodian or liquidator or trustee or assignee in bankruptcy or
insolvency of the Company of its property, or for the winding up or
liquidation of its affairs and such decree or order shall have
remained in force unvacated and unstayed for a period of 90 days;
(5) the Company shall institute proceedings to be adjudicated a
voluntary bankrupt, or shall consent to the filing of a bankruptcy
proceeding against it, or shall file a petition or answer or consent
seeking liquidation or reorganization under the Federal Bankruptcy
Code or any other similar applicable Federal or State law, or shall
consent to the filing of any such petition, or shall consent to the
appointment on the ground of insolvency or bankruptcy of a receiver or
custodian or liquidator or trustee or assignee in bankruptcy or
insolvency of it or of its property, or shall make an assignment for
the benefit of creditors; or
(6) any other Event of Default provided in the supplemental
indenture or Board Resolution under which such series of Securities is
issued or in the form of Security for such series.
(b) In each and every such case, unless the principal of all the
Securities of that series shall have already become due and payable, either
the Trustee or the holders of not less than 25% in aggregate principal
amount of the Securities of that series then Outstanding hereunder, by
notice in writing to the Company (and to the Trustee if given by such
Securityholders), may declare the principal of all the Securities of that
series to be due and payable immediately, and upon any such declaration the
same shall become and shall be immediately due and payable, anything
contained in this Indenture or in the Securities of that series or
established with respect to that series pursuant to Section 2.01 hereof to
the contrary notwithstanding.
(c) The provisions of Section 6.01(b), however, are subject to
the condition that if, at any time after the principal of the Securities of
that series shall have been so declared due and payable, and before any
judgment or decree for the payment of the moneys due shall have been
obtained or entered as hereinafter provided, the Company shall pay or shall
deposit with the Trustee a sum sufficient to pay all matured installments
of interest upon all the Securities of that series and the principal of
(and premium, if any, on) any and all Securities of that series which shall
have become due otherwise than by acceleration (with interest upon such
principal and premium, if any, and, to the extent that such payment is
enforceable under applicable law, upon overdue installments of interest, at
the rate per annum expressed in the Securities of that series to the date
of such payment or deposit) and the amount payable to the Trustee under
Section 7.06, and any and all Defaults under the Indenture, other than the
nonpayment of principal on Securities of that series which shall not have
become due by their terms, shall have been remedied or waived as provided
in Section 6.06 then and in every such case the holders of a majority in
aggregate principal amount of the Securities of that series then
Outstanding, determined in accordance with Section 8.04, by written notice
to the Company and to the Trustee, may rescind and annul such declaration
and its consequences; but no such rescission and annulment shall extend to
or shall affect any subsequent default, or shall impair any right
consequent thereon.
(d) In case the Trustee shall have proceeded to enforce any
right with respect to Securities of that series under this Indenture and
such proceedings shall have been discontinued or abandoned because of such
rescission or annulment or for any other reason or shall have been
determined adversely to the Trustee, then and in every such case the
Company and the Trustee shall be restored respectively to their former
positions and rights hereunder, and all rights, remedies and powers of the
Company and the Trustee shall continue as though no such proceedings had
been taken.
SECTION 6.02. (a) The Company covenants that (1) in case
default shall be made in the payment of any installment of interest on any
of the Securities of a series, or any payment required by any sinking or
analogous fund established with respect to that series as and when the same
shall become due and payable, and such default shall have continued for a
period of 30 Business Days, or (2) in case default shall be made in the
payment of the principal of (or premium, if any, on) any of the Securities
of a series when the same shall have become due and payable, whether upon
maturity of the Securities of a series or upon redemption or upon
declaration or otherwise -- then, upon demand of the Trustee, the Company
will pay to the Trustee, for the benefit of the holders of the Securities
of that series, the whole amount that then shall have become due and
payable on all Securities of such series for principal (and premium, if
any) or interest, or both, as the case may be, with interest upon the
overdue principal (and premium, if any) and (to the extent that payment of
such interest is enforceable under applicable law) upon overdue
installments of interest at the rate per annum expressed in the Securities
of that series; and, in addition, thereto, such further amount as shall be
sufficient to cover the costs and expenses of collection, and the amount
payable to the Trustee under Section 7.06.
(b) In the case the Company shall fail forthwith to pay such
amounts upon such demand, the Trustee, in its own name and as trustee of an
express trust, shall be entitled and empowered to institute any action or
proceedings at law or in equity for the collection of the sums so due and
unpaid, and may prosecute any such action or proceeding to judgment or
final decree, and may enforce any such judgment or final decree against the
Company or other obligor upon the Securities of that series and collect in
the manner provided by law out of the property of the Company or other
obligor upon the Securities of that series wherever situated the moneys
adjudged or decreed to be payable.
(c) In case of any receivership, insolvency, liquidation,
bankruptcy, reorganization, readjustment, arrangement, composition or other
judicial proceedings affecting the Company, any other obligor on such
Securities, or the creditors or property of either, the Trustee shall have
power to intervene in such proceedings and take any action therein that may
be permitted by the court and shall (except as may be otherwise provided by
law) be entitled to file such proofs of claim and other papers and
documents as may be necessary or advisable in order to have the claims of
the Trustee and of the holders of Securities of such series allowed for the
entire amount due and payable by the Company or such other obligor under
the Indenture at the date of institution of such proceedings and for any
additional amount which may become due and payable by the Company or such
other obligor after such date, and to collect and receive any moneys or
other property payable or deliverable on any such claim, and to distribute
the same after the deduction of the amount payable to the Trustee under
Section 7.06; and any receiver, assignee or trustee in bankruptcy or
reorganization is hereby authorized by each of the holders of Securities of
such series to make such payments to the Trustee, and, in the event that
the Trustee shall consent to the making of such payments directly to such
Securityholders, to pay to the Trustee any amount due it under Section
7.06.
(d) All rights of action and of asserting claims under this
Indenture, or under any of the terms established with respect to Securities
of that series, may be enforced by the Trustee without the possession of
any such Securities, or the production thereof at any trial or other
proceeding relative thereto, and any such suit or proceeding instituted by
the Trustee shall be brought in its own name as trustee of an express
trust, and any recovery of judgment shall, after provision for payment to
the Trustee of any amounts due under Section 7.06, be for the ratable
benefit of the holders of the Securities of such series.
In case of an Event of Default hereunder the Trustee may in its
discretion proceed to protect and enforce the rights vested in it by this
Indenture by such appropriate judicial proceedings as the Trustee shall
deem most effectual to protect and enforce any of such rights, either at
law or in equity or in bankruptcy or otherwise, whether for the specific
enforcement of any covenant or agreement contained in the Indenture or in
aid of the exercise of any power granted in this Indenture, or to enforce
any other legal or equitable right vested in the Trustee by this Indenture
or by law.
Nothing herein contained shall be deemed to authorize the Trustee
to authorize or consent to or accept or adopt on behalf of any
Securityholder any plan of reorganization, arrangement, adjustment or
composition affecting the Securities of that series or the rights of any
holder thereof or to authorize the Trustee to vote in respect of the claim
of any Securityholder in any such proceeding.
SECTION 6.03. Any moneys collected by the Trustee pursuant to
Section 6.02 with respect to a particular series of Securities shall be
applied in the order following, at the date or dates fixed by the Trustee
and, in case of the distribution of such moneys on account of principal (or
premium, if any) or interest, upon presentation of the several Securities
of that series, and stamping thereon the payment, if only partially paid,
and upon surrender thereof if fully paid:
FIRST: To the payment of costs and expenses of collection and of all
amounts payable to the Trustee under Section 7.06;
SECOND: To the payment of the amounts then due and unpaid upon
Securities of such series for principal (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: To the payment of any surplus then remaining to the Company,
or its successors and assigns, or to whomsoever may be lawfully
entitled thereto.
SECTION 6.04. No holder of any Security of any series shall have
any right by virtue or by availing of any provision of this Indenture to
institute any suit, action or proceeding in equity or at law upon or under
or with respect to this Indenture or for the appointment of a receiver or
trustee, or for any other remedy hereunder, unless such holder previously
shall have given to the Trustee written notice of an Event of Default and
of the continuance thereof with respect to Securities of such series
specifying such Event of Default, as hereinbefore provided, and unless also
the holders of not less than 25% in aggregate principal amount of the
Securities of such series then Outstanding, determined in accordance with
Section 8.04, shall have made written request upon the Trustee to institute
such action, suit or proceeding in its own name as trustee hereunder and
shall have offered to the Trustee such reasonable indemnity as it may
require against the costs, expenses and liabilities to be incurred therein
or thereby, and the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity, shall have failed to institute any such
action, suit or proceeding and the Trustee shall not have received any
direction inconsistent with such written notice during such 60-day period
by the holders of not less than a majority in aggregate principal amount of
the Securities of such series then Outstanding; it being understood and
intended, and being expressly covenanted by the taker and holder of every
Security of such series with every other such taker and holder and the
Trustee, that no one or more holders of Securities of such series shall
have any right in any manner whatsoever by virtue or by availing of any
provision of this Indenture to affect, disturb or prejudice the rights of
the holders of any other of such Securities, or to obtain or seek to obtain
priority over or preference to any other such holder, or to enforce any
right under this Indenture, except in the manner herein provided and for
the equal, ratable and common benefit of all holders of Securities of such
series. For the protection and enforcement of the provisions of this
Section, each and every Securityholder and the Trustee shall be entitled to
such relief as can be given either at law or in equity.
Notwithstanding any other provisions of this Indenture, however,
the right of any holder of any Security to receive payment of the principal
of (and premium, if any) and interest on such Security, as therein
provided, on or after the respective due dates expressed in such Security
(or in the case of redemption, on the redemption date), or to institute
suit for the enforcement of any such payment on or after such respective
dates or redemption date, shall not be impaired or affected without the
consent of such holder.
SECTION 6.05. (a) All powers and remedies given by this Article
to the Trustee or to the Securityholders shall, to the extent permitted by
law, be deemed cumulative and not exclusive of any others thereof or of any
other powers and remedies available to the Trustee or the holders of the
Securities, by judicial proceedings or otherwise, to enforce the
performance or observance of the covenants and agreements contained in this
Indenture or otherwise established with respect to such Securities.
(b) No delay or omission of the Trustee or of any holder of any
of the Securities to exercise any right or power accruing upon any Event of
Default occurring and continuing as aforesaid shall impair any such right
or power, or shall be construed to be a waiver of any such default or an
acquiescence therein; and, subject to the provisions of Section 6.04, every
power and remedy given by this Article or by law to the Trustee or to the
Securityholders may be exercised from time to time, and as often as shall
be deemed expedient, by the Trustee or by the Securityholders.
SECTION 6.06. The holders of a majority in aggregate principal
amount of the Securities of any series at the time Outstanding, determined
in accordance with Section 8.04, shall have the right to direct the time,
method and place of conducting any proceeding for any remedy available to
the Trustee, or exercising any trust or power conferred on the Trustee with
respect to such series; provided, however, that such direction shall not be
in conflict with any rule of law or with this Indenture, as determined by
the Trustee, or unduly prejudicial to the rights of holders of Securities
of any other series at the time Outstanding, determined in accordance with
Section 8.04, not parties thereto. Subject to the provisions of Section
7.01, the Trustee shall have the right to decline to follow any such
direction if the Trustee in good faith shall, by a responsible officer or
officers of the Trustee, determine that the proceeding so directed would
involve the Trustee in personal liability. The holders of a majority in
aggregate principal amount of the Securities of any series at the time
Outstanding, determined in accordance with Section 8.04, may on behalf of
the holders of all of the Securities of that series waive any past default
in the performance of any of the covenants contained herein or established
pursuant to Section 2.01 with respect to such series and its consequences,
except a default in the payment of the principal of, or premium, if any, or
interest on, any of the Securities of that series as and when the same
shall become due by the terms of such Securities or a call for redemption
of Securities of that series. Upon any such waiver, the default covered
thereby shall be deemed to be cured and to cease to exist for all purposes
of this Indenture and the Company, the Trustee and the holders of the
Securities of that series shall be restored to their former positions and
rights hereunder, respectively; but no such waiver shall extend to any
subsequent or other default or impair any right consequent thereon.
SECTION 6.07. The Trustee shall, within 90 days after the
occurrence of a default with respect to a particular series, transmit by
mail, first class postage prepaid, to the holders of Securities of that
series, as their names and addresses appear upon the Security Register,
notice of all defaults with respect to that series known to the Trustee,
unless such defaults shall have been cured before the giving of such notice
(the term "defaults" for the purposes of this Section being hereby defined
to be the events specified in subsections (1), (2), (3), (4), (5) and (6)
of Section 6.01(a), not including any periods of grace provided for therein
and irrespective of the giving of notice provided for by subsection (3) of
Section 6.01(a)); provided, that, except in the case of default in the
payment of the principal of (or premium, if any) or interest on any of the
Securities of that series or in the payment of any sinking fund installment
established with respect to that series, the Trustee shall be protected in
withholding such notice if and so long as the board of directors, the
executive committee, or a trust committee of directors and/or responsible
officers, of the Trustee in good faith determine that the withholding of
such notice is in the interests of the Securityholders of Securities of
that series; provided further, that in the case of any default of the
character specified in Section 6.01(a)(3) with respect to Securities of
such series no such notice to the holders of the Securities of that series
shall be given until at least 30 days after the occurrence thereof.
The Trustee shall not be deemed to have knowledge of any default,
except (i) a default under subsections (a)(1) or (a)(2) of Section 6.01 as
long as the Trustee is acting as paying agent for such series of Securities
or (ii) any default as to which the Trustee shall have received written
notice or a Responsible Officer charged with the administration of this
Indenture shall have obtained actual knowledge.
SECTION 6.08. All parties to this Indenture agree, and each
holder of any Securities by his or her acceptance thereof shall be deemed
to have agreed, that any court may in its discretion require, in any suit
for the enforcement of any right or remedy under this Indenture, or in any
suit against the Trustee for any action taken 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 Securityholder, or group of Securityholders, holding
more than 10% in aggregate principal amount of the Outstanding Securities
of any series, or to any suit instituted by any Securityholder for the
enforcement of the payment of the principal of (or premium, if any) or
interest on any Security of such series, on or after the respective due
dates expressed in such Security or established pursuant to this Indenture.
ARTICLE VII.
CONCERNING THE TRUSTEE
SECTION 7.01. (a) The Trustee, prior to the occurrence of an
Event of Default with respect to Securities of a series and after the
curing of all Events of Default with respect to Securities of that series
which may have occurred, shall undertake to perform with respect to
Securities of such series such duties and only such duties as are specifically
set forth in this Indenture, and no implied covenants shall be read into this
Indenture against the Trustee. In case an Event of Default with respect to
Securities of a series has occurred (which has not been cured or waived),
the Trustee shall exercise with respect to Securities of that 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.
(b) 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
(1) prior to the occurrence of an Event of Default with respect
to Securities of a series and after the curing or waiving of all such
Events of Default with respect to that series which may have occurred:
(i) the duties and obligations of the Trustee shall with
respect to Securities of such series be determined solely by the
express provisions of this Indenture, and the Trustee shall not
be liable with respect to Securities of such series except for
the performance of such duties and obligations as are
specifically set forth in this Indenture, and no implied
covenants or obligations shall be read into this Indenture
against that Trustee; and
(ii) in the absence of bad faith on the part of the
Trustee, the Trustee may with respect to Securities of such
series conclusively rely, as to the truth of the statements and
the correctness of the opinions expressed therein, upon any
certificates or opinions furnished to the Trustee and conforming
to the requirements of this Indenture; but in the case of any
such certificates or opinions which by any provision hereof are
specifically required to be furnished to the Trustee, the Trustee
shall be under a duty to examine the same to determine whether or
not they conform to the requirements of this Indenture;
(2) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer or responsible officers of
the Trustee, unless it shall be proved that the Trustee was negligent
in ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with
the direction of the holders of not less than a majority in principal
amount of the Securities of any series at the time Outstanding
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 that series; and
(4) None of the provisions contained in this Indenture shall
require the Trustee to expend or risk its own funds or otherwise incur
personal financial liability in the performance of any of its duties
or in the exercise of any of its rights or powers, if there is
reasonable ground for believing that the repayment of such funds or
liability is not reasonably assured to it under the terms of this
Indenture or adequate indemnity against such risk is not reasonably
assured to it.
SECTION 7.02. Except as otherwise provided in Section 7.01:
(a) The Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval,
bond, security or other paper or document believed by it to be genuine and
to have been signed or presented by the proper party or parties;
(b) Any request, direction, order or demand of the Company
mentioned herein shall be sufficiently evidenced by a Board Resolution or
an instrument signed in the name of the Company by the President or the
Chief Financial Officer and by the Secretary or an Assistant Secretary or
the Treasurer or an Assistant Treasurer (unless other evidence in respect
thereof is specifically prescribed herein);
(c) 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 or suffered or
omitted hereunder in good faith and in reliance thereon;
(d) The Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request, order
or direction of any of the Securityholders, pursuant to the provisions of
this Indenture, unless such Securityholders shall have offered to the
Trustee reasonable security or indemnity against the costs, expenses and
liabilities which may be incurred herein or thereby; nothing herein
contained shall, however, relieve the Trustee of the obligation, upon the
occurrence of an Event of Default with respect to a series of the
Securities (which has not been cured or waived) to exercise with respect to
Securities of that series such of the rights and powers vested in it by
this Indenture, and to use the same degree of care and skill in their
exercise, as a prudent man would exercise or use under the circumstances in
the conduct of his own affairs;
(e) The Trustee shall not be liable for any action taken or
omitted to be taken by it in good faith and believed by it to be authorized
or within the discretion or rights or powers conferred upon it by this
Indenture;
(f) The Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval,
bond, security, or other papers or documents, unless requested in writing
so to do by the holders of not less than a majority in principal amount of
the Outstanding Securities of the particular series affected thereby
(determined as provided in Section 8.04); provided, however, that if the
payment within a reasonable time to the Trustee of the costs, expenses or
liabilities likely to be incurred by it in the making of such investigation
is, in the opinion of the Trustee, not reasonably assured to the Trustee by
the security afforded to it by the terms of this Indenture, the Trustee may
require reasonable indemnity against such costs, expenses or liabilities as
a condition to so proceeding. The reasonable expense of every such
examination shall be paid by the Company or, if paid by the Trustee, shall
be repaid by the Company upon demand; and
(g) The Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys and the Trustee shall not be responsible for any
misconduct or negligence on the part of any agent or attorney appointed
with due care by it hereunder.
SECTION 7.03. (a) The recitals contained herein and in the
Securities (other than the Certificate of Authentication on the Securities)
shall be taken as the statements of the Company, and the Trustee assumes no
responsibility for the correctness of the same.
(b) The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Securities.
(c) The Trustee shall not be accountable for the use by the
Company of any of the Securities or the use or application by the Company
of the proceeds of such Securities, or for the use or application of any
moneys paid over by the Trustee in accordance with any provision of this
Indenture or established pursuant to Section 2.01, or for the use or
application of any moneys received by any paying agent other than the
Trustee.
SECTION 7.04. The Trustee or any paying agent or Security
Registrar, in its individual or any other capacity, may become the owner or
pledgee of Securities with the same rights it would have if it were not
Trustee, paying agent or Security Registrar.
SECTION 7.05. Subject to the provisions of Section 11.05, all
moneys received by the Trustee shall, until used or applied as herein
provided, be held in trust for the purposes for which they were 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 moneys
received by it hereunder except such as it may agree with the Company to
pay thereon.
SECTION 7.06. (a) The Company covenants and agrees to pay to
the Trustee from time to time, and the Trustee shall be entitled to,
reasonable compensation (which shall not be limited by any provision of law
in regard to the compensation of a trustee of an express trust) for all
services rendered by it in the execution of the trusts hereby created and
in the exercise and performance of any of the powers and duties hereunder
of the Trustee, and the Company will pay or reimburse the Trustee upon its
request for all reasonable expenses, disbursements and advances incurred or
made by the Trustee in accordance with any of the provisions of this
Indenture (including the reasonable compensation and the expenses and
disbursements of its counsel (including in-house counsel) and of all
persons not regularly in its employ) except any such expense, disbursement
or advance as may arise from its negligence or bad faith. The Company also
covenants to indemnify the Trustee (and its officers, agents, directors and
employees) for, and to hold it harmless against, any loss, liability or
expense incurred without negligence or bad faith on the part of the Trustee
and arising out of or in connection with the acceptance or administration
of this trust, including the costs and expenses of defending itself against
any claim of liability in the premises.
(b) The obligations of the Company under this Section to
compensate and indemnify the Trustee and to pay or reimburse the Trustee
for expenses, disbursements and advances shall constitute additional
indebtedness hereunder. Such additional indebtedness shall be secured by a
lien prior to that of the Securities upon all property and funds held or
collected by the Trustee as such, except funds held in trust for the
benefit of the holders of particular Securities.
SECTION 7.07. Except as otherwise provided in Section 7.01,
whenever in the administration of the provisions of this Indenture the
Trustee shall deem it necessary or desirable that a matter be proved or
established prior to taking or suffering or omitting to take any action
hereunder, such matter (unless other evidence in respect thereof be herein
specifically prescribed) may, in the absence of negligence or bad faith on
the part of the Trustee, be deemed to be conclusively proved and
established by an Officers' Certificate delivered to the Trustee and such
certificate, in the absence of negligence or bad faith on the part of the
Trustee, shall be full warrant to the Trustee for any action taken,
suffered or omitted to be taken by it under the provisions of this
Indenture upon the faith thereof.
SECTION 7.08. The Trustee shall be disqualified only where such
disqualification is required by Section 310(b) of the Trust Indenture Act.
SECTION 7.09. There shall at all times be a Trustee with respect
to the Securities issued hereunder which shall at all times be a
corporation organized and doing business under the laws of the United
States of America or any State or Territory thereof or of the District of
Columbia, or a corporation or other person permitted to act as trustee by
the Securities and Exchange Commission, authorized under such laws to
exercise corporate trust powers, having a combined capital and surplus of
at least $10 million, and subject to supervision or examination by Federal,
State, Territorial, or District of Columbia authority. If such corporation
publishes reports of condition at least annually, pursuant to law or to the
requirements of the aforesaid 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. The Company may
not, nor may any person directly or indirectly controlling, controlled by,
or under common control with the Company, serve as Trustee. In case at any
time the Trustee shall cease to be eligible in accordance with the
provisions of this Section, the Trustee shall resign immediately in the
manner and with the effect specified in Section 7.10.
SECTION 7.10. (a) The Trustee or any successor hereafter
appointed, may at any time resign with respect to the Securities of one or
more series by giving written notice thereof to the Company and by
transmitting notice of resignation by mail, first class postage prepaid, to
the Securityholders of such series, as their names and addresses appear
upon the Security Register. Upon receiving such notice of resignation, the
Company shall promptly appoint a successor trustee with respect to
Securities of such series by written instrument, in duplicate, executed by
order of the Board of Directors, one copy of which instrument shall be
delivered to the resigning Trustee and one copy to the successor trustee.
If no successor trustee shall have been so appointed and have accepted
appointment within 30 days after the mailing of such notice of resignation,
the resigning Trustee may petition any court of competent jurisdiction for
the appointment of a successor trustee with respect to Securities of such
series, or any Securityholder of that series who has been a bona fide
holder of a Security or Securities for at least six months may, subject to
the provisions of Section 6.08, on behalf of himself and all others
similarly situated, petition any such court for the appointment of a
successor trustee. Such court may thereupon after such notice, if any, as
it may deem proper and prescribe, appoint a successor trustee.
(b) In case at any time any of the following shall occur--
the Trustee shall fail to comply with the provisions of
subsection (a) of Section 310 of the Trust Indenture Act after written
request therefor by the Company or by any Securityholder who has been
a bona fide holder of a Security or Securities for at least six
months, or
the Trustee shall cease to be eligible in accordance with
the provisions of Section 7.09 and shall fail to resign after written
request therefor by the Company or by any such Securityholder of
Securities, or
the Trustee shall become incapable of acting, or shall be
adjudged a bankrupt or insolvent, or a receiver of the Trustee or of
its property shall be appointed, or any public officer shall take
charge or control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation,
then, in any such case, the Company may remove the Trustee with respect to
all Securities and appoint a successor trustee by written instrument, in
duplicate, executed by order of the Board of Directors, one copy of which
instrument shall be delivered to the Trustee so removed and one copy to the
successor trustee, or, subject to the provisions of Section 7.08, unless
the Trustee's duty to resign is stayed as provided herein, any
Securityholder who has been a bona fide holder of a Security or Securities
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. Such court may
thereupon after such notice, if any, as it may deem proper and prescribe,
remove the Trustee and appoint a successor trustee.
(c) The holders of a majority in aggregate principal amount of
the Securities of any series at the time Outstanding may at any time remove
the Trustee with respect to such series and appoint a successor trustee.
(d) Any resignation or removal of the Trustee and appointment of
a successor trustee with respect to the Securities of a series pursuant to
any of the provisions of this Section shall become effective upon
acceptance of appointment by the successor trustee as provided in Section
7.11.
(e) Any successor trustee appointed pursuant to this Section may
be appointed with respect to the Securities of one or more series or all of
such series, and at any time there shall be only one Trustee with respect
to the Securities of any particular series.
SECTION 7.11. (a) In case of the appointment hereunder of a
successor trustee with respect to all Securities, every such successor
trustee so appointed shall execute, acknowledge and deliver to the Company
and to the retiring Trustee an instrument accepting such appointment, and
thereupon the resignation or removal of the retiring Trustee shall become
effective and such successor trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and
duties of the retiring Trustee; but, on the request of the Company or the
successor trustee, such retiring Trustee shall, upon payment of its
charges, execute and deliver an instrument transferring to such successor
trustee all the rights, powers, and trusts of the retiring Trustee and
shall duly assign, transfer and deliver to such successor trustee all
property and money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor trustee
with respect to the Securities of one or more (but not all) series, the
Company, the retiring Trustee and each successor trustee with respect to
the Securities of one or more series shall execute and deliver an indenture
supplemental hereto wherein each successor trustee shall accept such
appointment and which (1) shall contain such provisions as shall be
necessary or desirable to transfer and confirm to, and to vest in, each
successor trustee all the rights, powers, trusts and duties of the retiring
Trustee with respect to the Securities of that or those series to which the
appointment of such successor trustee relates, (2) shall contain such
provisions as shall be deemed necessary or desirable to confirm that all
the rights, powers, trusts and duties of the retiring Trustee with respect
to the Securities of that or those series as to which the retiring Trustee
is not retiring shall continue to be vested in the retiring Trustee, and
(3) shall add to or change any of the provisions of this Indenture as shall
be necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein
or in such supplemental indenture shall constitute such Trustees co-
trustees of the same trust, that each such Trustee shall be trustee of a
trust or trusts hereunder separate and apart from any trust or trusts
hereunder administered by any other such Trustee and that no Trustee shall
be responsible for any act or failure to act on the part of any other
Trustee hereunder; and upon the execution and delivery of such supplemental
indenture the resignation or removal of the retiring Trustee shall become
effective to the extent provided therein, such retiring Trustee shall with
respect to the Securities of that or those series to which the appointment
of such successor trustee relates have no further responsibility for the
exercise of rights and powers or for the performance of the duties and
obligations vested in the Trustee under this Indenture, and each such
successor trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series to
which the appointment of such successor trustee relates; but, on request of
the Company or any successor trustee, such retiring Trustee shall duly
assign, transfer and deliver to such successor trustee, to the extent
contemplated by such supplemental indenture, the property and money held by
such retiring Trustee hereunder with respect to the Securities of that or
those series to which the appointment of such successor trustee relates.
(c) Upon request of any such successor trustee, the Company
shall execute any and all instruments for more fully and certainly vesting
in and confirming to such successor trustee all such rights, powers and
trusts referred to in paragraph (a) or (b) of this Section, as the case may
be.
(d) No successor trustee shall accept its appointment unless at
the time of such acceptance such successor trustee shall be qualified and
eligible under this Article.
(e) Upon acceptance of appointment by a successor trustee as
provided in this Section, the Company shall transmit notice of the
succession of such trustee hereunder by mail, first class postage prepaid,
to the Securityholders, as their names and addresses appear upon the
Security Register. If the Company fails to transmit such notice within ten
days after acceptance of appointment by the successor trustee, the
successor trustee shall cause such notice to be transmitted at the expense
of the Company.
SECTION 7.12. 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 the
corporate trust business of the Trustee, shall be the successor of the
Trustee hereunder, provided such corporation shall be qualified under the
provisions of Section 7.08 and eligible under the provisions of Section
7.09, without the execution or filing of any paper or any further act on
the part of any of the parties hereto, anything herein to the contrary
notwithstanding. In case any Securities shall have been authenticated, but
not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such
securities.
SECTION 7.13. (a) Subject to the provisions of subsection (b)
of this Section, if the Trustee shall be or shall become a creditor,
directly or indirectly, secured or unsecured, of the Company within three
months prior to a default, as defined in subsection (c) of this Section, or
subsequent to such a default, then, unless and until such default shall be
cured, the Trustee shall set apart and hold in a special account for the
benefit of the Trustee individually, the holders of the Securities and the
holders of other indenture securities (as defined in subsection (c) of this
Section)
(1) an amount equal to any and all reductions in the amount due
and owing upon any claim as such creditor in respect of principal or
interest, effected after the beginning of such three months' period
and valid as against the Company and its other creditors, except any
such reduction resulting from the receipt or disposition of any
property described in paragraph (2) of this subsection, or from the
exercise of any right of set-off which the Trustee could have
exercised if a petition in bankruptcy had been filed by or against the
Company upon the date of such default; and
(2) all property received by the Trustee in respect of any claim
as such creditor, either as security therefor, or in satisfaction or
composition thereof, or otherwise, after the beginning of such three
months' period, or an amount equal to the proceeds of any such
property, if disposed of, subject, however, to the rights, if any, of
the Company and its other creditors in such property or such proceeds.
Nothing herein contained, however, shall affect the right of the
Trustee
(A) to retain for its own account (i) payments made on account of
any such claim by any person (other than the Company) who is liable
thereon, and (ii) the proceeds of the bona fide sale of any such claim
by the Trustee to a third person, and (iii) distributions made in
cash, securities, or other property in respect of claims filed against
the Company in bankruptcy or receivership or in a case for
reorganization pursuant to the Federal Bankruptcy Code or applicable
State law;
(B) to realize, for its own account, upon any property held by it
as security for any such claim, if such property was so held prior to
the beginning of such three months' period;
(C) to realize, for its own account, but only to the extent of
the claim hereinafter mentioned, upon any property held by it as
security for any such claim, if such claim was created after the
beginning of such three months' period and such property was received
as security therefor simultaneously with the creation thereof, and if
the Trustee shall sustain the burden of proving that at the time such
property was so received the Trustee had no reasonable cause to
believe that a default, as defined in subsection (c) of this Section,
would occur within three months; or
(D) to receive payment on any claim referred to in paragraph (B)
or (C), against the release of any property held as security for such
claim as provided in such paragraph (B) or (C), as the case may be, to
the extent of the fair value of such property.
For the purposes of paragraphs (B), (C) and (D), property
substituted after the beginning of such three months' period for property
held as security at the time of such substitution shall, to the extent of
the fair value of the property released, have the same status as the
property released, and, to the extent that any claim referred to in any of
such paragraphs is created in renewal of or in substitution for or for the
purpose of repaying or refunding any pre-existing claim of the Trustee as
such creditor, such claim shall have the same status as such pre-existing
claim.
If the Trustee shall be required to account, the funds and
property held in such special account and the proceeds thereof shall be
apportioned between the Trustee, the Securityholders and the holders of
other indenture securities in such manner that the Trustee, the
Securityholders and the holders of other indenture securities realize, as a
result of payments from such special account and payments of dividends on
claims filed against the Company in bankruptcy or receivership or in a case
for reorganization pursuant to the Federal Bankruptcy Code or applicable
State law, the same percentage of their respective claims, figured before
crediting to the claim of the Trustee anything on account of the receipt by
it from the Company of the funds and property in such special account and
before crediting to the respective claims of the Trustee, the
Securityholders and the holders of other indenture securities dividends on
claims filed against the Company in bankruptcy or receivership or in a case
for reorganization pursuant to the Federal Bankruptcy Code or applicable
State law, but after crediting thereon receipts on account of the
indebtedness represented by their respective claims from all sources other
than from such dividends and from the funds and property so held in such
special account. As used in this paragraph, with respect to any claim, the
term "dividends" shall include any distribution with respect to such claim
in bankruptcy or receivership or in a case for reorganization pursuant to
the Federal Bankruptcy Code or applicable State law, whether such
distribution is made in cash, securities, or other property, but shall not
include any such distribution with respect to the secured portion, if any,
of such claim. The court in which such bankruptcy, receivership or case
for reorganization is pending shall have jurisdiction (i) to apportion
between the Trustee, the Securityholders and the holders of other indenture
securities, in accordance with the provisions of this paragraph, the funds
and property held in such special account and the proceeds thereof, or (ii)
in lieu of such apportionment, in whole or in part, to give to the
provisions of this paragraph due consideration in determining the fairness
of the distributions to be made to the Trustee, the Securityholders and the
holders of other indenture securities with respect to their respective
claims, in which event it shall not be necessary to liquidate or to
appraise the value of any securities or other property held in such special
account or as security for any such claim, or to make a specific allocation
of such distributions as between the secured and unsecured portions of such
claims, or otherwise to apply the provisions of this paragraph as a
mathematical formula.
Any Trustee who has resigned or been removed after the beginning
of such three months' period shall be subject to the provisions of this
subsection (a) as though such resignation or removal had not occurred. If
any Trustee has resigned or been removed prior to the beginning of such
three months' period, it shall be subject to the provisions of this
subsection (a) if and only if the following conditions exist:
(i) the receipt of property or reduction of claim
which would have given rise to the obligation to account, if such
Trustee had continued as trustee, occurred after the beginning of such
three months' period; and
(ii) such receipt of property or reduction of claim
occurred within three months after such resignation or removal.
(b) There shall be excluded from the operation of subsection (a)
of this Section a creditor relationship arising from
(1) the ownership or acquisition of securities issued under any
indenture, or any security or securities having a maturity of one year
or more at the time of acquisition by the Trustee;
(2) advances authorized by a receivership or bankruptcy court of
competent jurisdiction, or by this Indenture, for the purpose of
preserving any property other than cash which shall at any time be
subject to the lien, if any, of this Indenture or of discharging tax
liens or other prior liens or encumbrances thereon, if notice of such
advance and of the circumstances surrounding the making thereof is
given to the Securityholders at the time and in the manner provided in
this Indenture;
(3) disbursements made in the ordinary course of business in the
capacity of trustee under an indenture, transfer agent, registrar,
custodian, paying agent, subscription agent, fiscal agent or
depositary, or other similar capacity;
(4) an indebtedness created as a result of services rendered or
premises rented; or an indebtedness created as a result of goods or
securities sold in a cash transaction as defined in subsection (c) of
this Section;
(5) the ownership of stock or of other securities of a Company
organized under the provisions of Section 25(a) of the Federal Reserve
Act, as amended, which is directly or indirectly a creditor of the
Company; or
(6) the acquisition, ownership, acceptance or negotiation of any
drafts, bills of exchange, acceptances or obligations which fall
within the classification of self-liquidating paper as defined in
subsection (c) of this Section.
(c) As used in this Section:
(1) The term "default" shall mean any failure to make payment in
full of the principal of (or premium, if any) or interest upon any of
the Securities or upon the other indenture securities when and as such
principal (or premium, if any) or interest becomes due and payable.
(2) The term "other indenture securities" shall mean securities
upon which the Company is an obligor (as defined in the Trust
Indenture Act of 1939, as amended) outstanding under any other
indenture (A) under which the Trustee is also trustee, (B) which
contains provisions substantially similar to the provisions of
subsection (a) of this Section, and (C) under which a default exists
at the time of the apportionment of the funds and property held in
said special account.
(3) The term "cash transaction" shall mean any transaction in
which full payment for goods or securities sold is made within seven
days after delivery of the goods or securities in currency or in
checks or other orders drawn upon banks or bankers and payable upon
demand.
(4) The term "self-liquidating paper" shall mean any draft, bill
of exchange, acceptance or obligation which is made, drawn, negotiated
or incurred by the Company for the purpose of financing the purchase,
processing, manufacture, shipment, storage or sale of goods, wares or
merchandise and which is secured by documents evidencing title to,
possession of, or a lien upon, the goods, wares or merchandise or the
receivables or proceeds arising from the sale of the goods, wares or
merchandise previously constituting the security, provided the
security is received by the Trustee simultaneously with the creation
of the creditor relationship with the Company arising from the making,
drawing, negotiating or incurring of the draft, bill of exchange,
acceptance or obligation.
(5) The term "Company" shall mean any obligor upon any of the
Securities.
ARTICLE VIII.
CONCERNING THE SECURITYHOLDERS
SECTION 8.01. Whenever in this Indenture it is provided that the
holders of a majority or specified percentage in aggregate principal amount
of the Securities of a particular series may take any action (including the
making of any demand or request, the giving of any notice, consent or
waiver or the taking of any other action), the fact that at the time of
taking any such action the holders of such majority or specified percentage
of that series have joined therein may be evidenced by any instrument or
any number of instruments of similar tenor executed by such holders of
Securities of that series in person or by agent or proxy appointed in
writing.
If the Company shall solicit from the Securityholders of any
series any request, demand, authorization, direction, notice, consent,
waiver or other action, the Company may, at its option, as evidenced by an
Officers' Certificate, fix in advance a record date for such series for the
determination of Securityholders entitled to give such request, demand,
authorization, direction, notice, consent, waiver or other action, but the
Company shall have no obligation to do so. If such a record date is fixed,
such request, demand, authorization, direction, notice, consent, waiver or
other action may be given before or after the record date, but only the
Securityholders of record at the close of business on the record date shall
be deemed to be Securityholders for the purposes of determining whether
Securityholders of the requisite proportion of Outstanding Securities of
that series have authorized or agreed or consented to such request, demand,
authorization, direction, notice, consent, waiver or other action, and for
that purpose the Outstanding Securities of that series shall be computed as
of the record date. Any such authorization, agreement or consent by such
Securityholders on the record date shall be deemed effective upon receipt.
SECTION 8.02. Subject to the provisions of Section 7.01, proof of
the execution of any instrument by a Securityholder (such proof will not
require notarization) or his agent or proxy and proof of the holding by any
person of any of the Securities shall be sufficient if made in the
following manner:
(a) The fact and date of the execution by any such person of any
instrument may be proved in any reasonable manner acceptable to the
Trustee.
(b) The ownership of Securities shall be proved by the Security
Registrar of such Securities or by a certificate of the Security Registrar
thereof.
(c) The Trustee may require such additional proof of any matter
referred to in this Section as it shall deem necessary.
SECTION 8.03. Prior to the due presentment for registration of
transfer of any Security, the Company, the Trustee, any paying agent and
any Security Registrar may deem and treat the person in whose name such
Security shall be registered upon the books of the Company as the absolute
owner of such Security (whether or not such Security shall be overdue and
notwithstanding any notice of ownership or writing thereon made by anyone
other than the Security Registrar) for the purpose of receiving payment of
or on account of the principal of, premium, if any, and (subject to Section
2.03) interest on such Security and for all other purposes; and neither the
Company nor the Trustee nor any paying agent nor any Security Registrar
shall be affected by any notice to the contrary.
SECTION 8.04. In determining whether the holders of the
requisite aggregate principal amount of Securities of a particular series
have concurred in any direction, consent or waiver under this Indenture,
Securities of that series which are owned by the Company or any other
obligor on the Securities of that series or by any Affiliate of the Company
or any other obligor on the Securities of that series shall be disregarded
and deemed not to be Outstanding for the purpose of any such determination,
except that for the purpose of determining whether the Trustee shall be
protected in relying on any such direction, consent or waiver only
Securities of such series which the Trustee actually knows are so owned
shall be so disregarded. Securities so owned which have been pledged in
good faith may be regarded as Outstanding for the purposes of this Section,
if the pledgee shall establish to the satisfaction of the Trustee the
pledgee's right so to act with respect to such Securities and that the
pledgee is not a person directly or indirectly controlling or controlled by
or under direct or indirect common control with the Company or any such
other obligor. In case of a dispute as to such right, any decision by the
Trustee taken upon the advice of counsel shall be full protection to the
Trustee.
SECTION 8.05. At any time prior to (but not after) the
evidencing to the Trustee, as provided in Section 8.01, of the taking of
any action by the holders of the majority or percentage in aggregate
principal amount of the Securities of a particular series specified in this
Indenture in connection with such action, any holder of a Security of that
series which is shown by the evidence to be included in the Securities the
holders of which have consented to such action may, by filing written
notice with the Trustee, and upon proof of holding as provided in Section
8.02, revoke such action so far as concerns such Security. Except as
aforesaid any such action taken by the holder of any Security shall be
conclusive and binding upon such holder and upon all future holders and
owners of such Security, and of any Security issued in exchange therefor,
on registration of transfer thereof or in place thereof, irrespective of
whether or not any notation in regard thereto is made upon such Security.
Any action taken by the holders of a majority or percentage in aggregate
principal amount of the Securities of a particular series specified in this
Indenture in connection with such action shall be conclusively binding upon
the Company, the Trustee and the holders of all the Securities of that
series.
ARTICLE IX.
SUPPLEMENTAL INDENTURES
SECTION 9.01. In addition to any supplemental indenture
otherwise authorized by this Indenture, the Company, when authorized by a
Board Resolution, and the Trustee may from time to time and at any time
enter into an indenture or indentures supplemental hereto (which shall
conform to the provisions of the Trust Indenture Act of 1939 as then in
effect), without the consent of the Securityholders, for one or more of the
following purposes;
(a) to evidence the succession of another corporation to the
Company, and the assumption by any such successor of the covenants of the
Company contained herein or otherwise established with respect to the
Securities; or
(b) to add to the covenants of the Company such further
covenants, restrictions, conditions or provisions for the protection of the
holders of the Securities of all or any series as the Board of Directors
and the Trustee shall consider to be for the protection of the holders of
Securities of all or any series, and to make the occurrence, or the
occurrence and continuance, of a default in any of such additional
covenants, restrictions, conditions or provisions a default or an Event of
Default with respect to such series permitting the enforcement of all or
any of the several remedies provided in this Indenture as herein set forth;
provided, however, that in respect of any such additional covenant,
restriction, condition or provision such supplemental indenture may provide
for a particular period of grace after default (which period may be shorter
or longer than that allowed in the case of other defaults) or may provide
for an immediate enforcement upon such default or may limit the remedies
available to the Trustee upon such default or may limit the right of the
holders of a majority in aggregate principal amount of the Securities of
such series to waive such default; or
(c) to cure any ambiguity or to correct or supplement any
provision contained herein or in any supplemental indenture which may be
defective or inconsistent with any other provision contained herein or in
any supplemental indenture, or to make such other provisions in regard to
matters or questions arising under this indenture as shall not be
inconsistent with the provisions of this Indenture and shall not adversely
affect the interests of the holders of the Securities of any series; or
(d) to change or eliminate any of the provisions of this
Indenture, provided that any such change or elimination shall become
effective only when there is no Security Outstanding of any series created
prior to the execution of such supplemental indenture which is entitled to
the benefit of such provision.
The Trustee is hereby authorized to join with the Company in the
execution of any such supplemental indenture, and to make any further
appropriate agreements and stipulations which may be therein contained, but
the Trustee shall not be obligated to enter into any such supplemental
indenture which affects the Trustee's own rights, duties or immunities
under this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this
Section may be executed by the Company and the Trustee without the consent
of the holders of any of the Securities at the time Outstanding,
notwithstanding any of the provisions of Section 9.02.
SECTION 9.02. With the consent (evidenced as provided in Section
8.01) of the holders of not less than a majority in aggregate principal
amount of the Securities of each series affected by such supplemental
indenture or indentures at the time Outstanding, the Company, when
authorized by a Board Resolution, and the Trustee may from time to time and
at any time enter into an indenture or indentures supplemental hereto
(which shall conform to the provisions of the Trust Indenture Act of 1939
as then in effect) for the purpose of adding any provisions to or changing
in any manner or eliminating any of the provisions of this Indenture or of
any supplemental indenture or of modifying in any manner the rights of the
holders of the Securities of such series under this Indenture; provided,
however, that no such supplemental indenture shall (i) extend the fixed
maturity of any Securities of any series, or reduce the principal amount
thereof, or reduce the rate or extend the time of payment of interest
thereon, or reduce any premium payable upon the redemption thereof, without
the consent of the holder of each Security so affected, or (ii) reduce the
aforesaid percentage of Securities, the holders of which are required to
consent to any such supplemental indenture, without the consent of the
holders of each Security then Outstanding and affected thereby.
Upon the request of the Company, accompanied by a Board
Resolution authorizing the execution of any such supplemental indenture,
and upon the filing with the Trustee of evidence of the consent of
Securityholders required to consent thereto as aforesaid, the Trustee shall
join with the Company in the execution of such supplemental indenture
unless such supplemental indenture affects the Trustee's own rights, duties
or immunities under this Indenture or otherwise, in which case the Trustee
may in its discretion but shall not be obligated to enter into such
supplemental indenture.
It shall not be necessary for the consent of the Securityholders
of any series affected thereby under this Section to approve the particular
form of any proposed supplemental indenture, but it shall be sufficient if
such consent shall approve the substance thereof.
Promptly after the execution by the Company and the Trustee of
any supplemental indenture pursuant to the provisions of this Section, the
Trustee shall transmit by mail, first class postage prepaid, a notice,
setting forth in general terms the substance of such supplemental
indenture, to the Securityholders of all series affected thereby as their
names and addresses appear upon the Security Register. Any failure of the
Trustee to mail such notice, or any defect therein, shall not, however, in
any way impair or affect the validity of any such supplemental indenture.
SECTION 9.03. Upon the execution of any supplemental indenture
pursuant to the provisions of this Article or of Section 10.01, this
Indenture shall, with respect to such series, be and be deemed to be
modified and amended in accordance therewith and the respective rights,
limitations of rights, obligations, duties and immunities under this
Indenture of the Trustee, the Company and the holders of Securities of the
series affected thereby shall thereafter be determined, exercised and
enforced hereunder subject in all respects to such modifications and
amendments, and all the terms and conditions of any such supplemental
indenture shall be and be deemed to be part of the terms and conditions of
this Indenture for any and all purposes.
SECTION 9.04. Securities of any series, affected by a
supplemental indenture, authenticated and delivered after the execution of
such supplemental indenture pursuant to the provisions of this Article or
of Section 10.01, may bear a notation in form approved by the Trustee,
provided such form meets the requirements of any exchange upon which such
series may be listed, as to any matter provided for in such supplemental
indenture. If the Company or the Trustee shall so determine, new
Securities of that series so modified as to conform, in the opinion of the
Trustee and the Board of Directors, to any modification of this Indenture
contained in any such supplemental indenture may be prepared by the
Company, authenticated by the Trustee and delivered in exchange for the
Securities of that series then Outstanding.
SECTION 9.05. The Trustee, subject to the provisions of Section
7.01, may receive an Opinion of Counsel as conclusive evidence that any
supplemental indenture executed pursuant to this Article is authorized or
permitted by, and conforms to, the terms of this Article and that it is
proper for the Trustee under the provisions of this Article to join in the
execution thereof.
ARTICLE X.
CONSOLIDATION, MERGER AND SALE
SECTION 10.01 Nothing contained in this Indenture or in any of
the Securities shall prevent any consolidation or merger of the Company
with or into any other corporation or corporations (whether or not
affiliated with the Company), or successive consolidations or mergers in
which the Company or its successor or successors shall be a party or
parties, or shall prevent any sale, conveyance, transfer or other
disposition of the property of the Company or its successor or successors
as an entirety, or substantially as an entirety, to any other corporation
(whether or not affiliated with the Company or its successor or successors)
authorized to acquire and operate the same; provided, however, the Company
hereby covenants and agrees that, upon any such consolidation, merger,
sale, conveyance, transfer or other disposition, (a) the due and punctual
payment of the principal of (premium, if any) and interest on all of the
Securities of all series in accordance with the terms of each series,
according to their tenor, and the due and punctual performance and
observance of all the covenants and conditions of this Indenture with
respect to each series or established with respect to such series pursuant
to Section 2.01 to be kept or performed by the Company, shall be expressly
assumed, by supplemental indenture (which shall conform to the provisions
of the Trust Indenture Act of 1939 as then in effect) satisfactory in form
to the Trustee executed and delivered to the Trustee by the Company formed
by such consolidation, or into which the Company shall have been merged, or
by the corporation which shall have acquired such property and (b) the
corporation or corporations formed by such consolidation or into which the
Company is merged or the Person or Persons which acquire by conveyance or
transfer, or which lease, the properties and assets of the Company
substantially as an entirety shall be a Person or Persons organized and
existing under the laws of the United States of America, any State thereof
or the District of Columbia.
SECTION 10.02. (a) In case of any such consolidation, merger,
sale, conveyance, transfer or other disposition and upon the assumption by
the successor corporation, by supplemental indenture, executed and
delivered to the Trustee and satisfactory in form to the Trustee, of the
due and punctual payment of the principal of, premium, if any, and interest
on all of the Securities of all series Outstanding and the due and punctual
performance of all of the covenants and conditions of this Indenture or
established with respect to each series of the Securities pursuant to
Section 2.01 to be performed by the Company with respect to each series,
such successor corporation shall succeed to and be substituted for the
Company, with the same effect as if it had been named herein as the party
of the first part, and thereupon the predecessor corporation shall be
relieved of all obligations and covenants under this Indenture and the
Securities. Such successor corporation thereupon may cause to be signed,
and may issue either in its own name or in the name of the Company or any
other predecessor obligor on the Securities, any or all of the Securities
issuable hereunder which theretofore shall not have been signed by the
Company and delivered to the Trustee; and, upon the order of such successor
company, instead of the Company, and subject to all the terms, conditions
and limitations in this Indenture prescribed, the Trustee shall
authenticate and shall deliver any securities which previously shall have
been signed and delivered by the officers of the predecessor Company to the
Trustee for authentication, and any Securities which such successor
corporation thereafter shall cause to be signed and delivered to the
Trustee for that purpose. All the Securities so issued shall in all
respects have the same legal rank and benefit under this Indenture as the
Securities theretofore or thereafter issued in accordance with the terms of
this Indenture as though all of such Securities had been issued at the date
of the execution hereof.
(b) In case of any such consolidation, merger, sale, conveyance,
transfer or other disposition such changes in phraseology and form (but not
in substance) may be made in the Securities thereafter to be issued as may
be appropriate.
(c) Nothing contained in this Indenture or in any of the
Securities shall prevent the Company from merging into itself or acquiring
by purchase or otherwise all or any part of the property of any other
corporation (whether or not affiliated with the Company).
SECTION 10.03. The Trustee, subject to the provisions of Section
7.01, may receive an Opinion of Counsel as conclusive evidence that any
such consolidation, merger, sale, conveyance, transfer or other
disposition, and any such assumption, complies with the provisions of this
Article.
ARTICLE XI.
SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS
SECTION 11.01. If at any time: (a) the Company shall have
delivered to the Trustee for cancellation all Securities of a series
theretofore authenticated (other than any Securities which shall have been
destroyed, lost or stolen and which shall have been replaced or paid as
provided in Section 2.07) and Securities for whose payment money or
Governmental Obligations has theretofore been deposited in trust or
segregated and held in trust by the Company (and thereupon repaid to the
Company or discharged from such trust, as provided in Section 11.05) or (b)
all such Securities of a particular series not theretofore delivered to the
Trustee for cancellation shall have become due and payable, or are by their
terms to become due and payable within one year or are to be called for
redemption within one year under arrangements satisfactory to the Trustee
for the giving of notice of redemption, and the Company shall deposit or
cause to be deposited with the Trustee as trust funds the entire amount in
moneys or Governmental Obligations sufficient or a combination thereof,
sufficient, without reinvestment, in the opinion of a nationally recognized
firm of independent public accountants expressed in a written certification
thereof delivered to the Trustee, to pay at maturity or upon redemption all
Securities of that series not theretofore delivered to the Trustee for
cancellation, including principal (and premium, if any) and interest due or
to become due to such date of maturity or date fixed for redemption, as the
case may be, and if the Company shall also pay or cause to be paid all
other sums payable hereunder with respect to such series by the Company,
then this Indenture shall thereupon cease to be of further effect with
respect to such series except for the provisions of Sections 2.05, 2.07,
4.02 and 7.10, which shall survive until the date of maturity or redemption
date, as the case may be, and Sections 7.06 and 11.05 which shall survive
to such date and thereafter, and the Trustee, on demand of the Company and
at the cost and expense of the Company, shall execute proper instruments
acknowledging satisfaction of and discharging this Indenture with respect
to such series.
SECTION 11.02. If at any time all such Securities of a particular
series not heretofore delivered to the Trustee for cancellation or which
have not become due and payable as described in Section 11.01 shall have
been paid by the Company by depositing irrevocably with the Trustee as
trust funds moneys or an amount of Governmental Obligations sufficient to
pay at maturity or upon redemption all such Securities of that series not
theretofore delivered to the Trustee for cancellation, including principal
(and premium, if any) and interest due or to become due to such date of
maturity or date fixed for redemption, as the case may be, and if the
Company shall also pay or cause to be paid all other sums payable hereunder
by the Company with respect to such series, then after the date such moneys
or Governmental Obligations, as the case may be, are deposited with the
Trustee the obligations of the Company under this Indenture with respect to
such series shall cease to be of further effect except for the provisions
of Sections 2.05, 2.07, 4.02, 7.06, 7.10 and 11.05 hereof which shall
survive until such Securities shall mature and be paid. Thereafter,
Sections 7.06 and 11.05 shall survive.
SECTION 11.03. All moneys or Governmental Obligations deposited
with the Trustee pursuant to Sections 11.01 or 11.02 shall be held in trust
and shall be available for payment as due, either directly or through any
paying agent (including the Company acting as its own paying agent), to the
holders of the particular series of Securities for the payment or
redemption of which such moneys or Governmental Obligations have been
deposited with the Trustee.
SECTION 11.04. In connection with the satisfaction and discharge
of this Indenture all moneys or Governmental Obligations then held by any
paying agent under the provisions of this Indenture shall, upon demand of
the Company, be paid to the Trustee and thereupon such paying agent shall
be released from all further liability with respect to such moneys or
Governmental Obligations.
SECTION 11.05 Any moneys or Governmental Obligations deposited
with any paying agent or the Trustee, or then held by the Company, in trust
for payment of principal of or premium or interest on the Securities of a
particular series that are not applied but remain unclaimed by the holders
of such Securities for two years after the date upon which the principal of
(and premium, if any) or interest on such Securities shall have
respectively become due and payable, shall be repaid to the Company on May
31 of each year or (if then held by the Company) shall be discharged from
such trust; and thereupon the paying agent and the Trustee shall be
released from all further liability with respect to such moneys or
Governmental Obligations, and the holder of any of the Securities entitled
to receive such payment shall thereafter, as an unsecured general creditor,
look only to the Company for the payment thereof.
ARTICLE XII.
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS
AND DIRECTORS
SECTION 12.01 No recourse under or upon any obligation, covenant
or agreement of this Indenture, or of any Security, or for any claim based
thereon or otherwise in respect thereof, shall be had against any
incorporator, stockholder, officer or director, past, present or future as
such, of the Company or of any predecessor or successor corporation, either
directly or through the Company or any such predecessor or successor
corporation, whether by virtue of any constitution, statute or rule of law,
or by the enforcement of any assessment or penalty or otherwise; it being
expressly understood that this Indenture and the obligations issued
hereunder are solely corporate obligations, and that no such personal
liability whatever shall attach to, or is or shall be incurred by, the
incorporators, stockholders, officers or directors as such, of the Company
or of any predecessor or successor corporation, or any of them, because of
the creation of the indebtedness hereby authorized, or under or by reason
of the obligations, covenants or agreements contained in this Indenture or
in any of the Securities or implied therefrom; and that any and all such
personal liability of every name and nature, either at common law or in
equity or by constitution or statute, of, and any and all such rights and
claims against, every such incorporator, stockholder, officer or director
as such, because of the creation of the indebtedness hereby authorized, or
under or by reason of the obligations, covenants or agreements contained in
this Indenture or in any of the Securities or implied therefrom, are hereby
expressly waived and released as a condition of, and as a consideration
for, the execution of this Indenture and the issuance of such Securities.
ARTICLE XIII.
SUNDRY PROVISIONS
SECTION 13.03. All the covenants, stipulations, promises and
agreements in this Indenture contained by or on behalf of the Company shall
bind its successors and assigns, whether so expressed or not.
SECTION 13.02. Any act or proceeding by any provision of this
Indenture authorized or required to be done or performed by any board,
committee or officer of the Company shall and may be done and performed
with like force and effect by the corresponding board, committee or officer
of any corporation that shall at the time be the lawful sole successor of
the Company.
SECTION 13.03. The Company by instrument in writing executed by
authority of its Board of Directors and delivered to the Trustee may
surrender any of the powers reserved to the Company and thereupon such
power so surrendered shall terminate both as to the Company and as to any
successor corporation.
SECTION 13.04. Except as otherwise expressly provided herein any
notice or demand which by any provision of this Indenture is required or
permitted to be given or served by the Trustee or by the holders of
Securities to or on the Company may be given or served by being deposited
first class postage prepaid in a post office letterbox addressed (until
another address is filed in writing by the Company with the Trustee), as
follows: Century Telephone Enterprises, Inc., 100 Century Park Drive,
Monroe, Louisiana 71203, Attention: R. Stewart Ewing, Jr. Such notice
shall be deemed effective upon dispatch. Any notice, election, request or
demand by the Company or any Securityholder to or upon the Trustee shall be
deemed to have been sufficiently given or made, for all purposes, if given
or made in writing at the Corporate Trust Office of the Trustee, Attention:
Corporate Trust Administration.
SECTION 13.05. This Indenture and each Security shall be deemed
to be a contract made under the laws of the State of Louisiana, and for all
purposes shall be construed in accordance with the laws of said State.
SECTION 13.06. (a) Upon any application or demand by the Company
to the Trustee to take any action under any of the provisions of this
Indenture, the Company shall furnish to the Trustee an Officers'
Certificate stating that all conditions precedent provided for in this
Indenture relating to the proposed action have been complied with and an
Opinion of Counsel stating that in the opinion of such counsel all such
conditions precedent have been complied with, except that in the case of
any such application or demand as to which the furnishing of no such
documents is specifically required by any provision of this Indenture
relating to such particular application or demand, no additional
certificate or opinion need be furnished.
(b) Each certificate or opinion provided for in this Indenture
and delivered to the Trustee with respect to compliance with a condition or
covenant in this Indenture shall include (1) a statement that the person
making such certificate or opinion has read such covenant or condition; (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
such person, such person 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 or not, in the opinion of such person, such condition or
covenant has been complied with.
SECTION 13.07. In any case where the date of maturity, of interest
payment or principal payment of any Security or the date of redemption of
any Security shall not be a Business Day, then payment of interest or
principal (and premium, if any) may be made on the next succeeding business
day with the same force and effect as if made on the nominal date of
maturity or redemption, and no interest shall accrue for the period after
such nominal date.
SECTION 13.08. If and to the extent that any provision of this
Indenture limits, qualifies or conflicts with the duties imposed by
Sections 310 to 317, inclusive, of the Trust Indenture Act of 1939, as
amended, such imposed duties shall control.
SECTION 13.09. 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 13.10. In case any one or more of the provisions
contained in this Indenture or in the Securities of any series shall for
any reason be held to be invalid, illegal or unenforceable in any respect,
such invalidity, illegality or unenforceability shall not affect any other
provisions of this Indenture or of such Securities, but this Indenture and
such Securities shall be construed as if such invalid or illegal or
unenforceable provision had never been contained herein or therein.
First American Bank & Trust of Louisiana hereby accepts the
trusts in this Indenture declared and provided, upon the terms and
conditions hereinabove set forth.
* * * * * * * * * *
IN WITNESS WHEREOF, the parties hereto have caused this Indenture
to be duly executed, and their respective corporate seals to be hereunto
affixed and attested, all as of the day and year first above written.
CENTURY TELEPHONE ENTERPRISES, INC.
By: /S/ GLEN F. POST, III
---------------------------------
Glen F. Post, III
Vice Chairman, President and
Chief Executive Officer
Attest:
By: /S/ R. STEWART EWING, JR.
-------------------------------
R. Stewart Ewing, Jr.
Assistant Secretary
FIRST AMERICAN BANK & TRUST OF LOUISIANA
as Trustee
By: /S/ WILLIAM W. KEITH
-------------------------------
William W. Keith
Executive Vice President
and Trust Officer
Attest:
By: /S/ A. J. MCGINN, JR.
----------------------------
A. J. McGinn, Jr.
Assistant Secretary
STATE OF LOUISIANA )
)ss.:
PARISH OF OUACHITA )
On the 14th day of April 1994, before me personally came Glen F.
Post, III, to me known, who, being by me duly sworn, did depose and say
that he is the Vice Chairman, President and Chief Executive Officer of
Century Telephone Enterprises, Inc., one of the corporations described in
and which executed the foregoing instrument; that he knows the seal of said
corporation; that the seal affixed to said instrument is such corporate
seal; that it was so affixed by authority of the Board of Directors of said
corporation, and that he signed his name thereto by like authority.
/S/ KATHY E. TETTLETON
-----------------------------
Notary Public
[Notarial Seal]
STATE OF LOUISIANA )
) ss.:
PARISH OF OUACHITA )
On the 14th day of April 1994, before me personally came
William W. Keith, to me known, who, being by me duly so sworn, did depose
and say that he is the Executive Vice President and Trust Officer of First
American Bank & Trust of Louisiana, one of the corporations described in
and which executed the foregoing instrument; that he knows the seal of said
corporation; that the seal affixed to said instrument is such corporate
seal; that it was so affixed by authority of the Board of Directors of said
corporation, and that he signed his name thereto by like authority.
/S/ CHARLES H. RYAN
----------------------------
Notary Public
[Notarial Seal]
EXHIBIT 4.3
TO REGISTRATION STATEMENT
CENTURYTEL, INC.
FORM OF RESOLUTION TO BE ADOPTED BY SPECIAL PRICING COMMITTEE
(to be used in connection with authorizing the
issuance of any series of senior debt securities
under the below-mentioned Indenture)
WHEREAS, the Board of Directors of CenturyTel, Inc. (the "Company")
has previously authorized (i) the appropriate officers of the Company to
take various actions necessary to permit the Company to register, issue and
sell various securities of the Company, including senior debt securities,
with an aggregate initial offering price not to exceed $2 billion and (ii)
the Special Pricing Committee of the Board of Directors to establish the
specific terms and conditions of any one or more series of the Company's
senior debt securities to be issued and sold from time to time; and
WHEREAS, the Special Pricing Committee, acting pursuant to such
authorization, deems it desirable and in the best interest of the Company
and its shareholders to authorize the issuance of $___,000,000 aggregate
principal amount of senior debt securities of the Company;
NOW, THEREFORE, BE IT RESOLVED AS FOLLOWS:
I. AUTHORIZATION OF TERMS OF SECURITIES
RESOLVED THAT:
The Company shall create and issue $___,000,000 aggregate
principal amount of its senior debt securities, consisting of $___,000,000
aggregate principal amount of senior notes designated as the "CenturyTel,
Inc. _____% Senior Notes, Series __, Due ____" (the "New Senior Notes"), at
the prices described below and in accordance with the Indenture dated as of
March 31, 1994 ("Indenture"), between the Company and Regions Bank
(successor to First American Bank & Trust of Louisiana and Regions Bank of
Louisiana), as Trustee ("Trustee"), all on the terms and conditions set
forth below:
(a) The New Senior Notes will mature on _____________.
(b) The New Senior Notes shall bear interest from
_____________, 200__ until the principal thereof becomes due and payable at
the rate of ____% per annum, payable semi-annually on _____________ and
_____________ of each year commencing _____________, and any overdue
principal and (to the extent that the payment of such interest is
enforceable under applicable law) any overdue installment of interest
thereon shall bear interest at the same rate per annum; the principal of
and the interest on the New Senior Notes shall be payable in any coin or
currency of the United States of America which at the time of payment is
legal tender for the payment of public and private debts, at the office or
agency of the Company maintained in accordance with the Indenture. The
regular record date with respect to any interest payment date for the New
Senior Notes shall be _____________ or _____________, as the case may be,
immediately preceding such interest payment date, whether or not such date
is a business day.
(c) The New Senior Notes will not be redeemable prior to
maturity.
OR
The New Senior Notes may not be redeemed prior to
__________. The New Senior Notes may be redeemed from time to time on not
less than 30 nor more than 60 days' prior notice given as provided in the
Indenture, as a whole or in part, at the option of the Company, on any date
or dates on or after ________, and prior to maturity, at the applicable
percentage of the principal amount thereof to be redeemed as set forth
below under the heading "Redemption Price" during the respective twelve
month periods beginning ____ of the years shown below:
YEAR REDEMPTION PRICE
%
and thereafter at 100% of the principal amount, together, in each case,
with accrued interest to the date fixed for redemption (but if the date
fixed for redemption is an interest payment date, the interest installment
payable on such date shall be payable to the registered holder at the close
of business on the applicable record date).
OR
The New Senior Notes will be redeemable, as a whole or in
part, at the option of the Company at any time, at a redemption price equal
to the greater of (i) 100% of the principal amount of such series to be
redeemed and (ii) the sum of the present values of the Remaining Scheduled
Payments (as hereinafter defined) thereon discounted to the redemption date
on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day
months) at the Treasury Rate (as hereinafter defined) plus ____ basis
points for the New Senior Notes, together with accrued interest (if any) on
the principal amount being redeemed to the redemption date.
"Treasury Rate" means, with respect to any redemption date,
the rate per annum equal to the semi-annual equivalent yield to
maturity (computed as of the second business day immediately preceding
such redemption date) of the Comparable Treasury Issue, assuming a
price for the Comparable Treasury Issue (expressed as a percentage of
its principal amount) equal to the Comparable Treasury Price for such
redemption date.
"Comparable Treasury Issue" means the United States Treasury
security selected by an Independent Investment Banker that would be
utilized, at the time of selection and in accordance with customary
financial practice, in pricing new issues of corporate debt securities
of comparable maturity to the remaining term of the New Senior Notes.
"Independent Investment Banker" means one of the Reference Treasury
Dealers appointed by the Trustee after consultation with the Company.
"Comparable Treasury Price" means, with respect to any
redemption date, (i) the average of the bid and asked prices for the
Comparable Treasury Issue (expressed in each case as a percentage of
its principal amount) on the third business day preceding such
redemption date, as set forth in the daily statistical release (or any
successor release) published by the Federal Reserve Bank of New York
and designated "Composite 3:30 p.m. Quotations for U.S. Government
Securities" or (ii) if such release (or any successor release) is not
published or does not contain such prices on such business day, (A)
the average of the Reference Treasury Dealer Quotations for such
redemption date, after excluding the highest and lowest such Reference
Treasury Dealer Quotations, or (B) if the Trustee obtains fewer than
four such Reference Treasury Dealer Quotations, the average of all
such Quotations. "Reference Treasury Dealer Quotations" means, with
respect to each Reference Treasury Dealer and any redemption date, the
average, as determined by the Trustee, of the bid and asked prices for
the Comparable Treasury Issue (expressed in each case as a percentage
of its principal amount) quoted in writing to the Trustee by such
Reference Treasury Dealer at 3:30 p.m. New York time on the third
business day preceding such redemption date.
"Reference Treasury Dealer" means each of
__________________, ___________________, and ____________________, and
their respective successors; PROVIDED, HOWEVER, that if any of the
foregoing shall cease to be a primary U.S. Government securities
dealer in New York City (a "Primary Treasury Dealer"), the Company
shall substitute therefor another Primary Treasury Dealer.
"Remaining Scheduled Payments" means the remaining scheduled
payments of the principal of the New Senior Notes to be redeemed and
interest thereon that would be due after the related redemption date
but for such redemption; PROVIDED, HOWEVER, that if such redemption
date is not an interest payment date with respect to such New Senior
Notes, the amount of the next succeeding scheduled interest payment
thereon will be reduced by the amount of interest accrued thereon (if
any) to such redemption date.
Notice of any redemption will be mailed at least 30 days but
no more than 60 days before the redemption date to each holder of the New
Senior Notes to be redeemed.
Unless the Company defaults in payment of the redemption
price, on and after the applicable redemption date interest will cease to
accrue on the New Senior Notes, as applicable, or portions thereof called
for redemption. (If Applicable)
(d) There will be no mandatory sinking fund payments for any
series of the New Senior Notes.
(e) The New Senior Notes will be issued in the form of fully
registered global securities ("Global Securities") which will be deposited
with, or on behalf of, The Depositary Trust Company, New York, New York
("DTC"), and registered in the name of DTC's nominee. The New Senior Notes
may only be transferred, in whole and not in part, to another nominee of
DTC or to a successor of DTC or its nominee, unless the New Senior Notes
are subsequently issued in definitive form in the limited circumstances
described below. So long as a nominee of DTC is a registered owner of the
New Senior Notes, such nominee will be considered the sole owner or holder
of the New Senior Notes for all purposes under the Indenture. Except as
provided below, owners of beneficial interests will not be entitled to have
New Senior Notes registered in their names, will not receive or be entitled
to receive physical delivery of New Senior Notes in definitive form and
will not be considered the owners or holders thereof under the Indenture.
If DTC is at any time unwilling or unable to continue as depositary and a
successor depositary is not appointed by the Company within 90 days, the
Company will issue New Senior Notes in definitive form in exchange for the
Global Securities. In addition, the Company may at any time determine not
to have the New Senior Notes represented by Global Securities and, in such
event, will issue New Senior Notes in definitive form in exchange for the
Global Securities. In either instance, an owner of a beneficial interest
in the Global Securities will be entitled to have New Senior Notes equal in
principal amount to such beneficial interest registered in its name and
will be entitled to physical delivery of such New Senior Notes in
definitive form. New Senior Notes so issued in definitive form will be
issued in denominations of $1,000 and integral multiples thereof and will
be issued in registered form only, without coupons.
II. AUTHORIZATION OF FORM OF SECURITIES
RESOLVED THAT:
(1) The New Senior Notes and the Trustee's Certificate of
Authentication to be endorsed thereon are to be substantially in the
following form:
(FORM OF FACE OF SECURITY)
THIS SECURITY IS A REGISTERED GLOBAL SECURITY AND IS REGISTERED IN THE
NAME OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"),
OR A NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR
IN PART FOR A SECURITY IN DEFINITIVE REGISTERED FORM, AND NO TRANSFER
OF THIS SECURITY IN WHOLE OR IN PART MAY BE REGISTERED IN THE NAME OF
ANY PERSON OTHER THAN DTC OR ITS NOMINEE, EXCEPT IN THE LIMITED
CIRCUMSTANCES DESCRIBED ELSEWHERE HEREIN.
UNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC TO THE COMPANY (AS DEFINED BELOW) OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS
MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH
AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
No._____________ $_____________
CUSIP NO.________________
CENTURYTEL, INC.
____% Senior Notes, Series __, Due ____
CenturyTel, Inc., a corporation duly organized and existing under
the laws of the State of Louisiana (herein referred to as the
"Company"), for value received, hereby promises to pay to
_____________, or registered assigns, the principal sum of
_____________ Dollars on _____________ and to pay interest on said
principal sum from the most recent interest payment date to which
interest has been paid or duly provided for, or, if no interest has
been paid or duly provided for, from _______, semi-annually on
_____________ and _____________ in each year, commencing
_____________, at the rate of ____% per annum until the principal
hereof shall have become due and payable, and on any overdue principal
and (to the extent that payment of such interest is enforceable under
applicable law) on any overdue installment of interest at the same
rate per annum. The interest installment so payable, and punctually
paid or duly provided for, on any interest payment date will, as
provided in the Indenture hereinafter referred to, be paid to the
person in whose name this Security (or one or more Predecessor
Securities, as defined in such Indenture) is registered at the close
of business on the regular record date for such interest installment,
which shall be the _____________ or _____________, as the case may be
(whether or not a business day), immediately preceding such interest
payment date. Any such interest installment not so punctually paid or
duly provided for shall forthwith cease to be payable to the
registered holder on such regular record date, and may be paid to the
person in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on a special record
date to be fixed by the Trustee for the payment of such defaulted
interest, notice of which shall be given to the registered holders of
this series of Securities not more than 15 days and not less than 10
days prior to such special record date, or may be paid at any time in
any other lawful manner not inconsistent with the requirements of any
securities exchange on which this Security may be listed, and upon
such notice as may be required by such exchange, all as more fully
provided in the Indenture hereinafter referred to. The principal of
and the interest on this Security shall be payable in any coin or
currency of the United States of America which at the time of payment
is legal tender for payment of public and private debt, at the office
or agency of the Company maintained for that purpose in the City of
Monroe and State of Louisiana, or the Borough of Manhattan, the City
and State of New York.
This Security shall not be entitled to any benefit under the
Indenture hereinafter referred to, or be valid or become obligatory
for any purpose, until the Certificate of Authentication hereon shall
have been signed by or on behalf of the Trustee.
The provisions of this Security are continued on the reverse side
hereof and such continued provisions shall for all purposes have the
same effect as though fully set forth at this place.
IN WITNESS WHEREOF, the Company has caused this instrument to be
executed.
Dated_______________________________________
CENTURYTEL, INC.
By__________________________________________
[President/Vice President]
Attest:
By__________________________________________
[Secretary/Assistant Secretary]
(FORM OF CERTIFICATE OF AUTHENTICATION)
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the above-designated series
therein referred to in the within-mentioned Indenture.
Regions Bank
as Trustee, Authenticating Agent and
Security Registrar
By _________________________
Authorized Officer
(FORM OF ADDITIONAL TERMS OF SECURITY)
This Security is one of a duly authorized series of Securities of
the Company (herein sometimes referred to as the "Securities"), all
issued or to be issued in one or more series under and pursuant to an
Indenture dated as of March 31, 1994 duly executed and delivered
between the Company and Regions Bank, an Alabama banking corporation
organized and existing under the laws of the State of Alabama
(successor to First American Bank & Trust of Louisiana and Regions
Bank of Louisiana), as Trustee (herein referred to as the "Trustee")
(such Indenture hereinafter referred to as the "Indenture"), to which
Indenture reference is hereby made for a description of the rights,
limitation of rights, obligations, duties and immunities thereunder of
the Trustee, the Company and the holders of the Securities. By the
terms of the Indenture, the Securities are issuable in series which
may vary as to amount, date of maturity, rate of interest and in other
respects as in the Indenture provided. This Security (herein called
the "Security") is one of the series designated on the face hereof
(herein called the "Series") limited in aggregate principal amount to
$___,000,000.
In case an Event of Default, as defined in the Indenture, with
respect to the Series shall have occurred and be continuing, the
principal of all of the Securities of the Series may be declared, and
upon such declaration shall become, due and payable, in the manner,
with the effect and subject to the conditions provided in the
Indenture.
The Indenture contains provisions permitting the Company and the
Trustee, with the consent of the holders of not less than a majority
in aggregate principal amount of the Securities of each series
affected at the time Outstanding, as defined in the Indenture, to
execute supplemental indentures for the purpose of adding any
provisions to or changing in any manner or eliminating any of the
provisions of the Indenture or of any supplemental indenture or of
modifying in any manner the rights of the holders of the Securities;
PROVIDED, HOWEVER, that no such supplemental indenture shall (i)
extend the fixed maturity of any Securities or any series, or reduce
the principal amount thereof, or reduce the rate or extend the time of
payment of interest thereon, or reduce any premium payable upon the
redemption thereof, without the consent of the holder of each Security
so affected or (ii) reduce the aforesaid percentage of Securities, the
holders of which are required to consent to any such supplemental
indenture, without the consent of the holders of each Security then
Outstanding and affected thereby. The Indenture also contains
provisions permitting the holders of a majority in aggregate principal
amount of the Securities of any series at the time Outstanding, on
behalf of the holders of Securities of such series, to waive any past
default in the performance of any of the covenants contained in the
Indenture, or established pursuant to the Indenture with respect to
such series, and its consequences, except a default in the payment of
the principal of, or premium, if any, or interest on any of the
Securities of such series. Any such consent or waiver by the
registered holder of this Security (unless revoked as provided in the
Indenture) shall be conclusive and binding upon such holder and upon
all future holders and owners of this Security and of any Security
issued in exchange hereof or in place hereof (whether by registration
of transfer or otherwise), irrespective of whether or not any notation
of such consent or waiver is made upon this Security.
No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligation of
the Company, which is absolute and unconditional, to pay the principal
of and interest on this Security at the times and place and at the
rate and in the currency herein prescribed.
[The Securities are issuable as registered Securities without
coupons in denominations of $1,000 or any integral multiple thereof.
Securities may be exchanged, upon presentation thereof for that
purpose, at the office or agency of the Company in the City of Monroe
and State of Louisiana, for other Securities of authorized
denominations, and for a like aggregate principal amount and series,
and upon payment of a sum sufficient to cover any tax or other
governmental charge in relation thereto.] [DELETE IF GLOBAL SECURITIES
ARE TO BE ISSUED.]
The Securities will not be redeemable prior to maturity.
OR
The Securities may not be redeemed prior to __________. The
Securities may be redeemed from time to time on not less than 30 nor
more than 60 days' prior notice given as provided in the Indenture, as
a whole or in part, at the option of the Company, on any date or dates
on or after ________, and prior to maturity, at the applicable
percentage of the principal amount thereof to be redeemed as set forth
below under the heading "Redemption Price" during the respective
twelve month periods beginning ____ of the years shown below:
YEAR REDEMPTION PRICE
%
and thereafter at 100% of the principal amount, together, in each
case, with accrued interest to the date fixed for redemption (but if
the date fixed for redemption is an interest payment date, the
interest installment payable on such date shall be payable to the
registered holder at the close of business on the applicable record
date).
OR
The Securities of this Series are subject to redemption, as a
whole or in part, at any time, at the option of the Company, upon not
less than 30 nor more than 60 days notice by mail, at a redemption
price equal to the greater of (i) 100% of the principal amount of the
Securities to be redeemed and (ii) the sum of the present values of
the Remaining Scheduled Payments (as hereinafter defined) thereon
discounted to the redemption date on a semi-annual basis (assuming a
360-day year consisting of twelve 30-day months) at the Treasury Rate
(as hereinafter defined) plus [ ] basis points, together with
accrued interest (if any) on the principal amount being redeemed to
the redemption date.
"Treasury Rate" means, with respect to any redemption date,
the rate per annum equal to the semi-annual equivalent yield to
maturity (computed as of the second Business Day immediately
preceding such redemption date) of the Comparable Treasury Issue,
assuming a price for the Comparable Treasury Issue (expressed as
a percentage of its principal amount) equal to the Comparable
Treasury Price for such redemption date.
"Comparable Treasury Issue" means the United States Treasury
security selected by an Independent Investment Banker that would
be utilized, at the time of selection and in accordance with
customary financial practice, in pricing new issues of corporate
debt securities of comparable maturity to the remaining term of
this Security. "Independent Investment Banker" means one of the
Reference Treasury Dealers appointed by the Trustee after
consultation with the Company.
"Comparable Treasury Price" means, with respect to any
redemption date, (i) the average of the bid and asked prices for
the Comparable Treasury Issue (expressed in each case as a
percentage of its principal amount) on the third Business Day
preceding such redemption date, as set forth in the daily
statistical release (or any successor release) published by the
Federal Reserve Bank of New York and designated "Composite 3:30
p.m. Quotations for U.S. Government Securities" or (ii) if such
release (or any successor release) is not published or does not
contain such prices on such Business Day, (A) the average of the
Reference Treasury Dealer Quotations for such redemption date,
after excluding the highest and lowest such Reference Treasury
Dealer Quotations, or (B) if the Trustee obtains fewer than four
such Reference Treasury Dealer Quotations, the average of all
such Quotations. "Reference Treasury Dealer Quotations" means,
with respect to each Reference Treasury Dealer and any redemption
date, the average, as determined by the Trustee, of the bid and
asked prices for the Comparable Treasury Issue (expressed in each
case as a percentage of its principal amount) quoted in writing
to the Trustee by such Reference Treasury Dealer at 3:30 p.m. New
York time on the third Business Day preceding such redemption
date.
"Reference Treasury Dealer" means each of _____________,
____________, and ________________, and their respective
successors; PROVIDED, HOWEVER, that if any of the foregoing shall
cease to be a primary U.S. Government securities dealer in New
York City (a "Primary Treasury Dealer"), the Company shall
substitute therefor another Primary Treasury Dealer.
"Remaining Scheduled Payments" means the remaining scheduled
payments of the principal of this Security to be redeemed and
interest thereon that would be due after the related redemption
date but for such redemption; PROVIDED, HOWEVER, that if such
redemption date is not an interest payment date with respect to
this Security, the amount of the next succeeding scheduled
interest payment thereon will be reduced by the amount of
interest accrued thereon (if any) to such redemption date.
Notice of any redemption will be mailed at least 30 days but no
more than 60 days before the redemption date to each holder of
Securities to be redeemed.
Unless the Company defaults in payment of the redemption price,
on and after the applicable redemption date interest will cease to
accrue on this Security, or portions thereof called for redemption.
(If Applicable)
[As provided in the Indenture and subject to certain limitations
therein set forth, this Security is transferable by the registered
holder hereof on the Security Register of the Company, upon surrender
of this Security for registration of transfer at the office or agency
of the Company in the City of Monroe and State of Louisiana
accompanied by a written instrument or instruments of transfer in form
satisfactory to the Company or the Security Registrar duly executed by
the registered holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Securities of authorized
denominations and for the same aggregate principal amount and series
will be issued to the designated transferee or transferees. No
service charge will be made for any such transfer, but the Company may
require payment of a sum sufficient to cover any tax or other
governmental charge payable in relation thereto.] [DELETE IF GLOBAL
SECURITIES ARE TO BE ISSUED.]
[Prior to due presentment for registration of transfer of this
Security the Company, the Trustee, any paying agent and any Security
Registrar may deem and treat the registered holder hereof as the
absolute owner hereof (whether or not this Security shall be overdue
and notwithstanding any notice of ownership or writing hereon made by
anyone other than the Security Registrar) for the purpose of receiving
payment of or on account of the principal hereof and interest due
hereon and for all other purposes, and neither the Company nor the
Trustee nor any paying agent nor any Security Registrar shall be
affected by any notice to the contrary.] [DELETE IF GLOBAL SECURITIES
ARE TO BE ISSUED.]
No recourse shall be had for the payment of the principal of or
the interest on this Security, or for any claim based hereon, or
otherwise in respect hereof, or based on or in respect of the
Indenture, against any incorporator, stockholder, affiliate, officer
or director, past, present or future, as such, of the Company or of
any predecessor or successor corporation, whether by virtue of any
constitution, statute or rule of law, or by the enforcement of any
assessment or penalty or otherwise, all such liability being, by the
acceptance hereof and as part of the consideration for the issuance
hereof, expressly waived and released.
Capitalized terms used herein and not otherwise defined herein
shall have the respective meanings set forth in the Indenture.
The Indenture and this Security shall be governed by and
construed in accordance with the laws of the State of Louisiana.
(2) The office of Regions Bank located at 1500 North 18th
Street, Monroe, Louisiana, is hereby designated and created as the agency
of the Company in the City of Monroe and State of Louisiana at which (i)
both the principal and the interest on the New Senior Notes are payable on
the terms and conditions specified in the Indenture and notices,
presentations and demands to or upon the Company in respect the New Senior
Notes may be given or made and (ii) the New Senior Notes may be surrendered
for transfer or exchange and transferred or exchanged in accordance with
the terms of the Indenture;
(3) The office of Regions Bank in Montgomery, Alabama, is hereby
designated and created as Security Registrar of the Company at which (i)
the Company shall register the New Senior Notes, (ii) the New Senior Notes
may be surrendered for transfer or exchange and transferred or exchanged in
accordance with the terms of the Indenture, and (iii) books for the
registration and transfer of the New Senior Notes shall be kept; and
(4) The New Senior Notes hereby authorized by these resolutions
shall be in substantially the form and shall have the characteristics
provided in the Indenture, and the form of the New Senior Notes of each
such series set forth in these resolutions is hereby approved and adopted.
III. AUTHORIZATION OF SALE OF NEW SENIOR NOTES
RESOLVED THAT:
(1) The President or any Vice President is hereby authorized to
execute and deliver on behalf of the Company an Underwriting Agreement in
substantially the form of the Underwriting Agreement presented to the
members of this Committee, reflecting the terms of the sale of the New
Senior Notes to the Underwriters named in such agreement, along with the
accompanying Price Determination Agreement that confirms that the sale
price of the New Senior Notes (after deducting an underwriting discount of
____%) shall be ____% of the principal amount thereof;
(2) The President or any Vice President and the Secretary or any
Assistant Secretary are hereby authorized and directed to deliver to the
Trustee a certified record of these resolutions setting forth the terms of
the New Senior Notes as required by Section 2.01 of the Indenture;
(3) The President or any Vice President is hereby authorized to
execute certificates in such forms as they deem necessary representing
$___,000,000 aggregate principal amount of New Senior Notes on behalf of
the Company under its corporate seal or a facsimile attested by the
Secretary or any Assistant Secretary, and the signature of the President,
or any Vice President, may be in the form of a facsimile signature of the
present or any future President or Vice President and the signature of the
Secretary or any Assistant Secretary in attestation of the corporate seal
may be in the form of a facsimile signature of the present or any future
Secretary or Assistant Secretary, and should any officer who signs, or
whose facsimile signature appears upon, any of the New Senior Notes cease
to be such an officer prior to their issuance, the New Senior Notes so
signed or bearing such facsimile signature shall still be valid, and
without prejudice to the use of the facsimile signature of any other
officer as hereinabove authorized, the facsimile signature of Glen F. Post
III, President, and the facsimile signature of Harvey P. Perry, Secretary,
are hereby expressly approved and adopted;
(4) The officers of the Company are hereby authorized to cause
the New Senior Notes to be delivered to the Trustee for authentication and
delivery by it in accordance with the provisions of the Indenture, and the
Trustee is hereby authorized and requested to authenticate the New Senior
Notes upon compliance by the Company with the provisions of the Indenture
and to deliver the same to or upon the written order of the President or
any Vice President of the Company, and the President or any Vice President
is hereby authorized and directed to apply to the Trustee for the
authentication and delivery of New Senior Notes;
(5) The President or any Vice President and the Treasurer or any
Assistant Treasurer of the Company are hereby authorized and empowered to
apply, in the name and on behalf of the Company, the net proceeds received
by the Company in connection with the offering of the New Senior Notes in
the manner described in the offering materials prepared and filed, or to be
prepared and filed, in connection with the offering of the New Senior
Notes;
(6) The officers are hereby authorized to issue and sell the
aggregate principal amounts of the New Senior Notes at the price and upon
the terms and conditions set forth in the Underwriting Agreement (including
the accompanying Price Determination Agreement) covering the sale of the
New Senior Notes;
(7) The officers of the Company are hereby authorized to
disseminate and file with the Securities and Exchange Commission any
prospectus supplements (to the prospectus dated _______________, 2000
forming a part of Registration Statement No. 333-________), or any
amendments or supplements thereto, that may be necessary or appropriate;
(8) The officers of the Company are authorized to execute and
deliver all such instruments and documents, to incur on behalf of the
Company all such expenses and obligations, to make all such payments, and
to do all such other acts and things as they may consider necessary or
desirable in connection with the accomplishment of the intent and purposes
of the foregoing resolutions, including without limitation obtaining all
necessary and appropriate CUSIP numbers and debt ratings, retaining all
necessary printing companies, depositary companies, engraving companies and
other agents or advisers, executing and delivering all closing instruments
that are contemplated by the Indenture or Underwriting Agreement or that
are otherwise customary and appropriate, and issuing any necessary and
appropriate press releases; and
(9) All actions heretofore taken by the officers of the Company
that would have been authorized hereunder if taken after the adoption of
these resolutions are hereby ratified and confirmed in all respects as the
acts of the Company.
JONES, WALKER Exhibit 5
WAECHTER, POITEVENT TO REGISTRATION STATEMENT
CARRE`RE & DENE`GRE, L.L.P.
April 21, 2000
CenturyTel, Inc.
100 Century Park Drive
Monroe, Louisiana 71203
RE: Registration Statement on Form S-3
CenturyTel, Inc. ("CenturyTel")
Gentlemen:
We have acted as CenturyTel's special counsel in connection with the
preparation of the registration statement on Form S-3 (the "Registration
Statement") filed by CenturyTel with the Securities and Exchange Commission
(the "Commission") on the date hereof relating to the registration of
senior unsecured debt securities ("Senior Debt Securities"), preferred
stock ("Preferred Stock"), common stock and associated preference share
purchase rights ("Common Stock") and warrants to purchase Senior Debt
Securities, Preferred Stock or Common Stock ("Warrants" and, collectively
with the Senior Debt Securities, Preferred Stock and Common Stock, the
"Securities") which may be issued from time to time in one or more series
as determined by CenturyTel's Board of Directors, or any committee thereof,
in subsequent resolutions ("Subsequent Resolutions") and as described in a
supplement to the prospectus (a "Prospectus Supplement") that forms a part
of the Registration Statement.
In connection with rendering the opinions expressed below, we have
examined original, photostatic or certified copies of (i) the resolutions
adopted by the Board of Directors of CenturyTel on November 18, 1999 (the
"Board Resolutions"), (ii) the Indenture (the "Indenture") dated as of
March 31, 1994 between CenturyTel (formerly named Century Telephone
Enterprises, Inc.) and Regions Bank (successor to First American Bank &
Trust of Louisiana and Regions Bank of Louisiana), Montgomery, Alabama, as
Trustee (the "Trustee"), and (iii) such other records of CenturyTel,
certificates of CenturyTel's officers and public officials, and such other
documents as we have deemed relevant. In our examination, we have assumed
the genuineness of all signatures, the authenticity of all documents
submitted to us as originals, the conformity to original documents of all
documents submitted to us as certified or photostatic copies and the
authenticity of the originals of such documents.
Based upon the foregoing and subject to the following qualifications
and comments, we are of the opinion that:
1. CenturyTel is a corporation duly organized, validly existing and
in good standing under the laws of the State of Louisiana and has all
requisite corporate power to issue the Securities.
2. Each series of Senior Debt Securities will be legally issued and
binding obligations of CenturyTel when (i) the Registration Statement, as
finally amended, shall have become effective under the Securities Act of
1933, as amended (the "Act"), (ii) any necessary supplemental indenture to
the Indenture shall have been duly authorized, executed and delivered by
CenturyTel and the Trustee, (iii) the terms of such series of Senior Debt
Securities shall have been established and approved in accordance with
Subsequent Resolutions, as contemplated by the Indenture and the
Registration Statement, (iv) a Prospectus Supplement with respect to such
series of Senior Debt Securities shall have been filed (or transmitted for
filing) with the Commission pursuant to Rule 424(b) of the Act and (v) any
required certificates representing such series of Senior Debt Securities
shall have been duly authenticated, executed and delivered in accordance
with the Indenture, and such Securities shall have been duly delivered to,
or registered in the name of, the purchasers thereof or a depositary acting
on their behalf against payment of the agreed consideration therefor in
accordance with the applicable underwriting, purchase or similar agreement.
3. The Common Stock will be legally issued, fully paid and non-
assessable when (i) the Registration Statement, as finally amended, shall
have become effective under the Act, (ii) the issuance and sale of the
Common Stock shall have been approved, in conformity with applicable law,
in accordance with Subsequent Resolutions, as contemplated by the
Registration Statement, (iii) a Prospectus Supplement with respect to such
shares of Common Stock shall have been filed (or transmitted for filing)
with the Commission pursuant to Rule 424(b) of the Act and (iv)
certificates representing the Common Stock shall have been duly executed,
countersigned and registered and duly delivered to the purchasers thereof
against payment of the agreed consideration therefor (but not less than the
par value) in accordance with the applicable underwriting, purchase or
similar agreement.
4. Each series of Warrants to purchase Senior Debt Securities will
be legally issued and binding obligations of CenturyTel when (i) the
Registration Statement, as finally amended, shall have become effective
under the Act, (ii) a warrant agreement relating to such Warrants shall
have been duly authorized, executed and delivered by CenturyTel and the
warrant agent or agents thereunder, (iii) the terms of such Warrants and
the Senior Debt Securities issuable upon exercise thereof shall have been
established and approved in accordance with Subsequent Resolutions, as
contemplated by the Registration Statement, the Indenture and the warrant
agreement relating to such Warrants, (iv) a Prospectus Supplement with
respect to such Warrants shall have been filed (or transmitted for filing)
with the Commission pursuant to Rule 424(b) of the Act, (v) any and all
actions required under the Indenture to validly issue the Senior Debt
Securities upon exercise of the Warrants shall have been taken and (vi)
such Warrants shall have been duly executed and authenticated or
countersigned as provided in the warrant agreement relating thereto and
duly delivered to the purchasers thereof against payment of the agreed
consideration therefor in accordance with the applicable underwriting,
purchase or similar agreement.
5. Each series of Preferred Stock will be legally issued, fully paid
and non-assessable when (i) the Registration Statement, as finally amended,
shall have become effective under the Act, (ii) the terms of such series of
Preferred Stock shall have been established and approved, in conformity
with applicable law, in accordance with Subsequent Resolutions, as
contemplated by the Registration Statement, (iii) Articles of Amendment
setting forth the terms of such series of Preferred Stock shall have been
duly executed, acknowledged, filed and recorded and shall have become
effective in accordance with the Louisiana Business Corporation Law, (iv) a
Prospectus Supplement with respect to such series of Preferred Stock shall
have been filed (or transmitted for filing) with the Commission pursuant to
Rule 424(b) of the Act and (v) certificates representing such series of
Preferred Stock shall have been duly executed, countersigned and registered
and duly delivered to the purchasers thereof against payment of the agreed
consideration therefor (but not less than par value) in accordance with the
applicable underwriting, purchase or similar agreement.
6. Each series of Warrants to purchase Common Stock or Preferred
Stock will be legally issued and binding obligations of CenturyTel when (i)
the Registration Statement, as finally amended, shall have become effective
under the Act, (ii) a warrant agreement relating to such Warrants shall
have been duly authorized, executed and delivered by CenturyTel and the
warrant agent or agents thereunder, (iii) the terms of such Warrants and
any Preferred Stock issuable upon exercise thereof shall have been
established and approved in accordance with Subsequent Resolutions, as
contemplated by the Registration Statement and the warrant agreement
relating to such Warrants, (iv) a Prospectus Supplement with respect to
such Warrants shall have been filed (or transmitted for filing) with the
Commission pursuant to Rule 424(b) of the Act, (v) any and all action
required under the Louisiana Business Corporation Law to validly issue
Common Stock or Preferred Stock upon exercise of the Warrants shall have
been taken and (vi) such series of Warrants shall have been duly executed
and authenticated or countersigned as provided in the warrant agreement
relating thereto and duly delivered to the purchasers thereof against
payment of the agreed consideration therefor in accordance with the
applicable underwriting, purchase or similar agreement.
In connection with our opinions expressed above, we have assumed that,
at or prior to the time of the delivery of any such Security: (i) the Board
of Directors, or any committee thereof, of CenturyTel shall have duly
authorized the issuance and sale of each such Security pursuant to the
adoption of Subsequent Resolutions and such authorization shall not have
been modified or rescinded; (ii) the Registration Statement shall have been
declared effective and such effectiveness shall not have been terminated or
rescinded; (iii) the Indenture has been duly authorized, executed and
delivered by CenturyTel and the Trustee and the Indenture has been and
continues to be qualified under the Trust Indenture Act of 1939, as
amended; and (iv) there will not have occurred any change in law affecting
the validity or enforceability of any such Security. We have also assumed
that none of the terms of any Security to be established subsequent to the
date hereof nor the issuance and delivery of such Security, nor the
compliance by CenturyTel with the terms of such Security, will violate any
applicable law or regulation (including those relating to the regulation of
communications companies) or will result in a violation of any provision of
any instrument or agreement then binding upon CenturyTel, or any
restriction imposed by any court or governmental body having jurisdiction
over CenturyTel or its assets.
The opinions set forth in paragraphs 2, 4 and 6 hereof are subject to
the qualification that enforceability may be limited by (i) applicable
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or
similar laws of general applicability relating to or affecting the
enforcement of creditors' rights, (ii) general principles of equity
(regardless of whether enforceability is considered in a proceeding in
equity or at law) and (iii) governmental authority to limit, delay or
prohibit the making of payments outside of the United States or in a
foreign currency or currency unit.
The opinions rendered herein are specifically limited to currently
applicable United States federal law and the laws of the State of Louisiana
as they relate to the opinions expressed herein. We are members of the bar
of the State of Louisiana and have neither been admitted to nor purport to
be experts on the laws of any other jurisdiction. We express no opinion as
to the application of the securities or blue sky laws of the various states
to the sale of any Securities.
We consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to us in the prospectus forming
a part thereof under the caption "Legal Matters." In giving this consent,
we do not admit that we are within the category of persons whose consent is
required under Section 7 of the Securities Act of 1933, as amended, or the
general rules and regulations of the Commission.
Yours very truly,
/s/ Jones, Walker, Waechter, Poitevent,
Carre`re & Dene`gre, L.L.P.
EXHIBIT 12
TO REGISTRATION STATEMENT
RATIO OF EARNINGS TO FIXED CHARGES
FOR THE YEAR ENDED DECEMBER 31,
(UNAUDITED)
(for S-3 shelf registration statement)
<TABLE>
<CAPTION>
1995 1996 1997 1998 1999
--------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
(Dollars in thousands)
Net income 114,776 129,077 255,978 228,757 239,769
Income taxes 68,292 74,565 152,363 158,701 189,503
--------------------------------------------------------------
Pretax income 183,068 203,642 408,341 387,458 429,272
Adjustments to earnings:
Fixed charges 44,484 46,145 57,731 168,586 152,950
Capitalized interest (746) (1,063) (797) (626) (1,990)
Preferred dividends paid to
outside parties (123) (420) (460) (408) (403)
Gross earnings from
unconsolidated cellular
partnerships (20,155) (26,952) (27,852) (32,869) (29,956)
Distributed earnings from
unconsolidated cellular
partnerships 4,957 15,648 16,825 26,515 22,219
Gross losses from
unconsolidated cellular
partnerships 71 0 58 0 2,281
Minority losses from majority-
owned subsidiaries (321) (239) (1,437) (37) (10)
--------------------------------------------------------------
Earnings as adjusted 211,235 236,761 452,409 548,619 574,363
==============================================================
Fixed charges:
Interest expense 43,615 44,662 56,474 167,552 150,557
Interest capitalized 746 1,063 797 626 1,990
Interest portion of rental
expense --- --- --- --- ---
Preferred dividends paid to
outside parties 123 420 460 408 403
--------------------------------------------------------------
Total fixed charges 44,484 46,145 57,731 168,586 152,950
==============================================================
Ratio of earnings to fixed
charges 4.75 5.13 7.84 3.25 3.76
==============================================================
Ratio of earnings to fixed
charges and preferred stock
dividends 4.74 5.10 7.80 3.25 3.75
==============================================================
</TABLE>
EXHIBIT 23.1
TO REGISTRATION STATEMENT
INDEPENDENT AUDITORS' CONSENT
The Board of Directors
CenturyTel, Inc.:
We consent to the use of our report incorporated herein by reference
and to the reference to our firm under the heading "Experts" in the
prospectus.
/s/ KPMG LLP
Shreveport, Louisiana
April 21, 2000
